Scottish Court of Session Decisions

Donald Macrae, M.D., late of Strathpeffer, and thereafter of 75 Greenwood Road, Dalston, London, raised the present action of damages for written slander against Angus Sutherland, Little Ferry Cottage, Golspie, concluding for payment of £1000.

Dr Macrae was tenant of a farm in Strathpeffer belonging to Sutherland under a lease for ten years from 1886 at a rent of £100 per annum. In November 1887 Macrae ceased to occupy the premises, alleging that they were uninhabitable. Sutherland afterwards brought an action against Macrae for the rent, and obtained a warrant for his ejection from the Sheriff on 10th July 1888. The pursuer appealed from this judgment to the Second Division of the Court of Session, but he failed to print and lodge the appeal as required by statute, and the same was accordingly held to be abandoned. On 12th October 1888 decree was granted against the pursuer for the sum of £20, 13s. 6d., expenses of said process and appeal. The decree was extracted on 15th October, and on the 17th of that month the pursuer was charged to pay the sums contained therein. The days of charge expired without payment, and the pursuer therefore became notour bankrupt within the meaning of the Debtors (Scotland) Act 1880.

Macrae removed to London, and while negotiating for the lease of a house there the landlord thereof received this anonymous letter—“Sir,—I think it my duty to inform you that Dr Macrae, who is in negotiation with you about your house, has left Strathpeffer very much in debt; his landlord there will give you his true character. I enclose his address. Dr Macrae has been followed to Dalston and his movements watched; he is a man of no means, and has swindled many. Such a man ought not to be allowed to take honest people in. From one who has suffered. Late landlord's address—Mr Sutherland, Little Ferry, Golspie. Scotland, N.B.”

On 21st June 1888 the defender wrote to Robert Munro, writer, Tain, a letter in the following terms—“Dear Sir,—Thanks for your attention. That horrid man Macrae will never get a penny from me, and you know that as long as he keeps the key he is liable for the rent. There were several applicants for the place at a reduced rent on account of its being occupied by him. I do believe that he would be mobbed if he was appearing in the Strath. His statement of facts were a tissue of falsehoods. He must try some other Court. My son is a lawyer in London, and he will put him right there.—Yours truly, A. Sutherland.”

Macrae raised this action. He alleged that both letters had been writen by Sutherland, and that the statements made were false and calumnious. With regard to the letter of 21st June 1888 he alleged as follows—“The statements here made are of and concerning the pursuer, and are false and calumnious and malicious. They were intended to mean and do mean that the pursuer is of fraudulent and dishonourable character, and that in consequence thereof if he visited Strathpeffer he would be mobbed by the people in that locality. Further, they were intended to mean and do mean that he had been guilty of falsehood.”

The defender denied the anonymous letter, and also the innuendo which the pursuer put upon the defender's letter of 21st June 1888.

The defender pleaded, inter alia—“(1) The pursuer having left the country and being notour bankrupt, the defender is entitled in the circumstances to have him ordained ante omnia to find caution for expenses. The letter of 21st June 1888 not being slanderous the defender ought to be assoilzied.”

The following issues were adjusted for the trial of the cause—“1. Whether on or about 7th May 1888 the defender caused to be written and sent to Mr Bidgood, 117 Osbaldiston Road, Stokenewinton Common, Clapton, a letter in the terms set forth in the appendix hereto, marked A, which letter was received by the said Mr Bidgood? Whether the same is of and concerning the pursuer, and is false and calumnious, to the loss, injury, and damage of the pursuer? 2. It being admitted that on or about the 21st June 1888 the defender wrote and sent to Robert Munro, writer, Tain, a letter in the terms set forth in the appendix hereto annexed, marked B, and received by the said Robert Munro, Whether the same is of and concerning the pursuer, and whether the words—‘I do believe that he would be mobbed if he was appearing in the Strath,’ were intended to mean, and do mean that the pursuer is of fraudulent and dishonourable character, and that, in consequence thereof, if he visited Strathpeffer he would be mobbed by the people in that locality, and are false and calumnious, to the loss, injury, and damage of the pursuer?”

The two letters above quoted formed an appendix to the issues. By interlocutor of 16th January 1889 the Lord Ordinary ( Wellwood) repelled the first plea-in-law for the defender, and approved of the issue as amended.

The defender reclaimed, and argued—This was a case in which the pursuer was bound to find caution— Maxwell v. Maxwell, March 3, 1847, 9 D. 797. He was notour bankrupt within the meaning of the Debtors (Scotland) Act 1880— Samuel v. Greig, July 12, 1844, 6 D. 1259; besides, he had now left Scotland and was permanently resident in London. The mere circumstance that the present action was one for the vindication of character was not per se sufficient to obviate the rule that the pursuer should find caution— Clark v. Muller, January 16, 1884, 11 R. 418. In order that a pursuer

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should be liable to find caution it was not essential that he should be divested of his estate. The innuendo proposed was unfair as being too remote and too strained— Broomfield v. Greig, March 10, 1868, 6 Macph. 563; Phosphate Sewage Company v. Molleson, March 18, 1874, 1 R. 840; Brydone v. Brechin, May 17, 1881, 8 R. 697; Fraser v. Morris, February 24, 1888, 15 R. 454; The Capital and Counties Bank v. Henty, 1882, L.R., 7 App. Cas. 741.

Argued for respondent—The distinction between the present case and that of Clark, supra, was that here there was no divestiture. If the pursuer was successful in his action he would get the sum recovered in name of damages paid to himself. He was notour bankrupt and that was all, and in no case had it ever been held that any one in such a condition was bound to find caution but the reverse had been held— Scott v. Johnston, June 2, 1885, 12 R. 1022. The question of caution was one entirely for the discretion of the Court, and looking to the provisions of the Judgments Extension Act 1868, this was not a case in which caution was necessary. The defender's statements in the letter of 21st June 1888 would bear the innuendo proposed—Cases cited above; Debtors (Scotland) Act 1880 (43 and 44 Vict. c. 34), sec. 6.

The pursuer subsequently amended his issues at the bar as follows:—“(1) Whether on or about 7th May 1888 the defender caused to be written and sent to Mr Bidgood, 117 Osbaldiston Road, Stokenewinton Common, Clapton, a letter in the terms set forth in the appendix hereto marked A, which letter was received by the said Mr Bidgood. Whether the same is of and concerning the pursuer, and is false and calumnious, to the loss injury and damage of the pursuer. (2) It being admitted that on or about the 21st June 1888 the defender wrote and sent to Robert Munro, writer, Tain, a letter in the terms set forth in the appendix hereto annexed marked B, and received by the said Robert Munro, Whether the same is of and concerning the pursuer, and was intended to mean and does mean that the pursuer is of dishonourable character, and is false and calumnious, to the loss injury and damage of the pursuer. Damage laid at £1000.”

At advising—