Scottish Court of Session Decisions

James Collier, formerly tenant of Dunecht Sawmill, Aberdeenshire, thereafter residing at Daldowie Lodge, Broomhouse, near Glasgow, on 23d April 1884 raised the present action against John Ritchie & Co., printers and publishers of the Scotsman newspaper, concluding for £500 in name of reparation, damages, and solatium in the following circumstances:—In the Scotsman of Monday, February 27, 1882, in an article headed “The Dunecht Mystery—Arrests in Aberdeen,” the following paragraph appeared:—“ Aberdeen, Sunday Night—Inspector Cran left here for Dunecht on Saturday to arrest a man named Collier, but the latter could not be found.”

The pursuer averred that the statements published in the said paragraph were absolutely false, and were calumnious of and injurious to him, and that he was thus represented not only of being suspected of a crime but of absconding to escape the consequences. He further averred that no such warrant was issued at that time, and that he was at home at the Dunecht Sawmill at the time in question. The statements made in the Scotsman were copied into, among others, the Aberdeen Evening Express, and were very injurious to him in his business. Important and valuable contracts were, he alleged, in consequence thereof, taken from him, and upon 7th August 1882 he was compelled to execute a trust-deed for behoof of his creditors, and his profitable business was destroyed. He was also obliged to seek employment elsewhere.

The defenders, while admitting the publication of the paragraph of 27th February 1882, explained that the information was supplied to them by the Central News Association of London, that it was published by them in good faith, and in pursuance of their business to keep the public informed of what was being done by the authorities in the case.

The pursuer had written through his agent to the defenders upon” the said 27th February, intimating on the authority of the procurator-fiscal that no warrant against him had ever been applied for, and requesting the defenders to withdraw the paragraph and to pay him twenty guineas in reparation. A statement on which the defenders relied as a contradiction of the statement reported upon the 27th February was inserted in the Scotsman of the following day but no money compensation was made. The defenders averred that the pursuer at the time accepted the statement in the issue of 27th February as a complete and sufficient contradiction, and that no attempt was made to reopen the matter till January 1884, when a new demand was made.

The defenders also alleged that upon 27th July 1882 the pursuer was arrested in Glasgow on a charge of having been concerned in the removal of the body of the late Earl of Crawford and Balcarres from the family vault at Dunecht House, that he was taken to Aberdeen, where he emitted a declaration, and was thereafter liberated.

The pursuer pleaded, inter alia, that he was entitled to the sum concluded for, as the statements of the defenders were false and calumnious.

The defenders pleaded, inter alia—“(2) The pursuer having been divested of his estate by his subsisting trust-deed of 7th August 1882, he is not entitled to pursue this action, or at least not without finding caution for expenses.” They also pleaded that the pursuer was barred by the contradiction which they had published the following day, and by his waiver thereupon and for two years thereafter of all claims against them.

The Lord Ordinary appointed intimation of the process to the pursuer's trustee, and he having failed to sist himself, sustained the defenders' second plea above quoted, and ordained the pursuer to find caution for expenses within fourteen days. The time was thereafter prorogated for six days, and the pursuer having failed to find caution in that time, the Lord Ordinary, on 19th July, in respect of the pursuer's failure to find caution, dismissed the action.

The pursuer reclaimed, and argued, that after the opinions expressed in Clarke v. Muller, January 16, 1884, 11 R. 418, the question of caution in a case like the present was one for the discretion of the Court. Here the circumstances were special—the paragraph which was libellous was admitted, it had been the cause of the pursuer's bankruptcy, and the defenders on that account were barred from pleading the bankruptcy which they themselves had caused as necessitating the pursuer's finding caution. The pursuer's true position was like that of a defender, as his prima facie case had been admitted by the defenders.

Authority— M'Alister v. Swinburne & Company, November 7, 1873, 1 R. 166.

Argued for defenders—The pursuer was barred by mora. No demand had been made for two years. In such a case the Court would not be inclined to grant the pursuer any indulgence.

Page: 39↓

The Court called upon the pursuer to explain the cause of the delay in bringing the action. No satisfactory explanation was offered.

At advising—