Scottish Court of Session Decisions

On 12th October 1889 two of the officers of the Scottish Society for the Prevention of Cruelty to Animals observed that one of the horses attached to a four-in-hand coach on the Edinburgh and Forth Bridge service belonging to Messrs John Croall & Sons, coach proprietors, had two sores on its neck under the collar and drew the driver's attention to the matter, with the result that the horse was replaced by another. Information as to the case was given to the Procurator-Fiscal, and a complaint was thereafter made against Andrew Gray, stable manager at the stables of Messrs John Croall & Sons, Easter Road, Edinburgh. The case was conducted by the Fiscal in the Burgh Court on 29th October, and a Verdict of “not proven” was returned by the Magistrate.

On 30th October Mr Peter Morison, Gray's agent, wrote to Mr Langwill, the secretary of the Scottish Society for the Prevention of Cruelty to Animals, the following letter:— Dear Sir,—I am requested by Mr Andrew Gray, residing at Drum Stables, Easter Road, to write you regarding the complaint of cruelty to a horse made against him, and tried before the Magistrates yesterday, when the charge completely failed. You are aware that in reality the complaint was at the instance of your society, and while my client is aware that personally he cannot prevent the society from instigating the Public Prosecutor to take up and adopt such prosecutions, that being a matter between the Procurator-Fiscal and those who pay him; yet, as he is merely a working man, not only is he put to great disadvantage by having the resources of the Public Prosecutor directed against him, but he is put to this additional, and what I cannot help thinking unfair, disadvantage, viz., that he cannot get his expenses against the Public Prosecutor in a case where the latter ignominiously failed to establish the charge, as he did in this case. My client therefore trusts that when it is represented to them that he is merely a working man with a small weekly wage, that he is unable to bear the expenses of defending himself against an action brought in reality by your society, though sheltering itself behind the Procurator-Fiscal, your society

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will pay the expenses necessarily incurred by him in establishing his defence, and thus in a small degree make some reparation for the great injury done to him.— P. Morison. The account of expenses, amounting to £9, 13s. 4d., is enclosed.”

Mr Langwill replied as follows on the same day:—“Dear Sir,—I have received your letter of this date, enclosing business account of £9, 13s. 4d. due to you by Mr Andrew Gray, Easter Road, which I beg to return herewith, as this society has nothing whatever to do with the matter. The action against your client, to which you refer, was ‘at the instance’ not of this society, but of the Procurator-Fiscal, whose duty it is, if he considers fit, to prosecute in any case of cruelty of which information may be submitted to him by any person.”

Mr Morison wrote again on November 8th to the secretary of the society in these terms:—“ Procurator-Fiscal v. Gray.—Dear Sir,—I duly received your letter of the 30th ult., and have heard from my client thereanent. My client has instructed me to say that if you refer to my letter to you of the 30th ult., you will see that one of the grounds upon which my client founds his claim for repayment of the £9, 13s. 4d. incurred by him in defending a charge against himself for cruelty to animals is because the complaint was in the name of the Procurator-Fiscal while in reality it was at the instance of your society. My client now requests that you will put my former letter together with this letter before the directors of your society, because he does not believe that a society formed for the prevention of cruelty to animals will do the injustice of allowing him to bear the costs necessarily incurred by him in defending himself against an unfounded charge, which, though not made in the name of the society, was, in point of fact at its instance and instigation. You say in your letter that any person may give information to the Procurator-Fiscal, and thus originate a prosecution under the Act. I am directed by my client to say in reply that he admits this to be quite true; but submits there is a great distinction between a member of the public giving information and this case. When a member of the public gives information, he is quite disinterested. He has no temptation to make a case in order to lead his employers to believe that he is an active servant in the discharge of his duty; and the temptation becomes very strong when the employer is a society which appeals to the public for support by reason of the number of prosecutions it originates each year. My client does not mean to allege that the directors of the society would knowingly permit its officials, through excess of zeal, to strain the law against anyone; but unfortunately they can exercise but very little control over officers who are constantly going about the streets looking out for cases of cruelty, In short, it is because my client believes that the directors of this society will rectify an injustice which has been done him through the excessive zeal of Mitchell and Gibson, two of the society's officers, that he appeals to the directors for redress. If Mitchell and Gibson had made the slightest inquiry, or taken the advice of anyone acquainted with horses, they would have ascertained that this was no case of cruelty. But instead of doing that they rushed my client into Court, with the result that they failed to prove anything against him. It cost him, however, £9 odds to prove his innocence. He now says that if he be left to pay this, your society will be guilty of far greater cruelty to a man than what some people are punished for causing to an inferior animal. He asks me again to enclose my account, to be submitted along with this correspondence to your directors.”

On November 19th Mr Langwill replied:—“Dear Sir,—As requested in your letter of 8th inst., I submitted the whole correspondence in this matter, along with your business account, to the directors at a meeting held here to-day, when they unanimously declined to interfere in the matter. I return your business account herewith.”

On 22nd November the above correspondence was inserted in the Scotsman newspaper, along with the following letter from Mr Gray to the editor:—“Sir,—As cruelty to man may be perpetrated by those who profess to shield the inferior animals from it, unless there be also a society formed to protect the former, I venture to ask you to insert the annexed correspondence in your paper, in the hope of originating a movement to protect working men from such cruel injustice as that from which I suffer. I understand our employers have formed a society to protect themselves from vexatious prosecutions for alleged cruelty to animals, but working men who may have to bear the brunt of such proceedings are surely more deserving of protection than the lower animals, and in one sense they are equally helpless, as the correspondence will show.”

On 25th November 1889 the following letter from Mr Langwill, the secretary of the society, was inserted in the Scotsman and Evening News newspapers:—“Sir,—In reference to the letters which have appeared from Mr Morison and others, and to your leader of to-day, I deem it right to give the facts under which the society gave information to the Procurator-Fiscal in the above case. Mr Gray is stable manager at Easter Road stables to Messrs John Croall & Sons, coach proprietors, and is responsible for the state in which all the horses under his charge are sent out to work. About ten o'clock on the morning of Saturday, 12th October, two officers of the society observed in Princes Street at Waverley Steps a horse (one of four attached to a coach about to start for the Forth Bridge, Queensferry), and which had just come from the stable-yard, with two large sores, one on either side of the neck under the collar. The sores were very painful, in an inflamed, raw, open state, and appeared to be of several days' standing. The sore on the near side of the neck measured four inches by one inch, and that on the off-side

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three inches by two inches. The officers considered it very cruel to have the horse at work with its neck in such a state. The coach was just about to start, but on the officers drawing the driver's attention to the painful state of the horse's neck, the coach was taken up to St Andrew Street, out of the crowd. The horse was then replaced by another, and the coach started on its journey. The driver stated that Mr Andrew Gray, stable manager, was responsible for having sent out the horse, and that the coach was ready yoked for him when he went to the stable-yard that morning. Two police-constables on duty in Princes Street were also present, and examined the horse along with the society's officers. When interviewed afterwards by the officers, Gray admitted his responsibility for sending out the horse that morning. The case was considered by the officials of the society, and the conclusion was come to that it was absolutely impossible that the sores as seen by the officers could have been caused that morning, as was evidenced by their condition and a portion of scab hanging from one of them. As Gray had been warned not long before for a similar offence, it was resolved that the case was one which should be reported to the Fiscal for his consideration. The Fiscal decided to prosecute, and on the case being tried the Magistrate, after a long trial, in consequence of the conflicting evidence, found the case ‘not proven,’ in the circumstances a very different verdict from ‘not guilty.’ The coachman, who was a witness for the defence, admitted in Court to the Fiscal that it was cruel to have the animal in yoke in the state in which it was found by the officers. I may state that the society exists for the purpose of preventing cruelty to animals, and that the exertions of our officers are uniformly directed to this end, and to warning those who are ill-using animals so as to get them to cease from their malpractices. But to prevent cruelty it is necessary that flagrant cases be exposed and brought to justice, and this seemed to the officials and to the chief inspector (who is thoroughly experienced in the management of horses) such a flagrant case as required to be brought under the cognisance of the Procurator-Fiscal. This course has met the entire approval of the directors of the society, who are very far from taking sentimental views of such matters, and who desire to carry out the society's objects in the most enlightened manner, and with every consideration for those who make their bread by the use of animals.”

On 4th December the society inserted a similar communication as an advertisement in the Scotsman, with the following amplification—“Inasmuch as Mr Gray had been warned during the year for working a horse with a sore under the collar, and this case seemed to be an aggravated one, it was considered advisable to submit it to the Fiscal in order that he might take such steps as he found necessary in the interests of justice.”

The warning referred to as given to Mr Gray was contained in the following letter from the secretary of the society to him dated December 8th 1888, to which he made no reply:—“Sir—It has been brought under the notice of this society by its officers that on Monday last (3rd inst.), in Princes Street, Edinburgh, a black mare belonging to John Croall & Sons, and under your care, was worked while it was suffering from a raw and inflamed sore on the neck under the collar, and unfit for work. Although it is not considered necessary to take proceedings under the Act in this case, the particulars are recorded in the society's books, and this letter is sent you as a warning.”

In December 1889 Andrew Gray brought an action of damages for slander against the society.

He founded on the letter inserted in the Scotsman and Evening News on 25th November 1889, and averred—“Said letter is of and concerning the pursuer, and falsely and calumniously represents (1) that the pursuer, being stable manager to Messrs John Croall & Sons, and being responsible for the state in which all the horses under his charge are sent out to work, was, on the morning of Saturday 12th October 1889, guilty of an offence within the meaning of the Act 13 and 14 Vict. cap. 92, intituled ‘An Act for the more effectual Prevention of Cruelty to Animals in Scotland;’ (2) that although tried for said offence, and acquitted, the charge was nevertheless well founded; (3) that the verdict of the Magistrate finding the charge not proven was arrived at in consequence of false evidence having been adduced by the pursuer in his favour at his said trial; (4) that in violation of his duty as stable manager the pursuer was guilty of wanton cruelty to a horse under his charge by sending it out to work, and causing it to work, well knowing that it was not in a fit condition to be worked in consequence of having two raw sores on its neck; (5) that this was a flagrant case of cruelty which required to be exposed, as the pursuer by this conduct showed that he was not fit for his position as stable manager; and (6) that not long before the date of his said trial the pursuer had been found guilty of a similar offence, and warned for having committed it. Said representations are false, and were made by the defenders maliciously and with the view of injuring the pursuer in the eyes of the public.” He also founded on the amplified statement made in the advertisement inserted in the Scotsman of 4th December, and averred—“The statement herein copied from said advertisement and circular is of and concerning the pursuer. It is false, and falsely and calumniously represents—(1)) That at some time during the year 1889 he had, in violation of his duty as stable manager, been guilty of cruelly ill-treating a horse under his care by causing it to be worked in the knowledge that it was unfit to be worked by reason of having a sore under the collar; and (2) that the pursuer was guilty of an aggravated offence of cruelty to an animal under his charge.”

The defenders pleaded, inter alia—“(1) The pursuer's averments are irrelevant. (4)

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The letter and advertisement complained of being privileged, and written and published in bona fide, and with reasonable and probable cause, and without malice, et separating, not inferring any slander on the pursuer, the defenders should be assoilzied. (5) The correspondence having been begun by the pursuer as averred, and the letters and advertisement complained of being fair and proper answers to the letter of the pursuer and his agent, the defenders should be assoilzied.”

On 1st March 1890 the Lord Ordinary approved of the following issues for trial of the cause:—“(1) Whether the letters printed were inserted respectively in the Scotsman newspaper and in the Edinburgh Evening News newspaper of 25th November 1889 by or on behalf of the defenders; and whether said letters, or part thereof, are of and concerning the pursuer, and falsely and calumniously represent, that although the pursuer was tried for an offence within the meaning of the Act 13 and 14 Victoria, chapter 92, intituled ‘An Act for the more effectual Prevention of Cruelty to Animals in Scotland,’ and acquitted, the charge was nevertheless well founded; and that not long before the 29th October 1889, being the date of his said trial, the pursuer had been guilty of a similar offence; or falsely and calumniously makes one or more of the foregoing representations? Damages laid at £350. 2) Whether the defenders caused the following statement, inter alia, to be inserted in an advertisement in the Scotsman newspaper of 4th December 1889:—‘Inasmuch as Mr Gray had been warned during the year for working a horse with a sore under the collar, and this case seemed to be an aggravated one, it was considered advisable to submit it to the Fiscal in order that he might take such steps as he found necessary in the interests of justice;’ and whether said statement is of and concerning the pursuer, and falsely and calumniously represents that during the year 1889 the pursuer had been guilty of cruelly ill-treating a horse? Damages laid at £150.”

“ Opinion.—The first question is, whether the letters warrant the innuendo, and I am of opinion that they do. The letters bear reference to an offence for which the pursuer had been tried, and say that the pursuer had been warned before for a similar offence. The offence of which they speak was of necessity and obviously an offence under the Act for Prevention of Cruelty to Animals, and if so, I think they seem to affirm, or at least may be reasonably understood to affirm, that the pursuer had on a previous occasion been guilty of an offence falling under that Act. I think also that the letters may very fairly be read as implying that the pursuer was guilty of the charge on which he was tried and acquitted. They do not say so in express terms, but I think it is not improbable that many people, perhaps most people who read them, would receive that impression. They say that the case seemed to their officials and their inspector, who was thoroughly experienced in the management of horses, to be a flagrant one. They say that what took place met with the entire approval of the directors, who were persons desirous of acting with consideration and moderation. In short, it was a flagrant case in the judgment of persons of skill and moderation. They emphasise the fact that the verdict was ‘Not proven,’ which they say is a very different verdict from ‘Not guilty’—an unnecessary platitude, unless inserted to indicate that the pursuer was something very different indeed from ‘Not guilty;’ and they also say that a witness for the pursuer admitted the cruelty in Court. Reading these letters by themselves, it appears to me that they may be reasonably understood to mean that the pursuer, in spite of the verdict of not proven, was guilty after all. They certainly do not contain an admission that he was innocent, nor do they lead one to think that the defenders had suspended their judgment in the matter, but rather that they had had a well-founded opinion at first, and that they held by it.

But reference was made to the letters which passed between the pursuer and his agent and the secretary of the society, and it was argued that if the letters said to be libellous were read with reference to these previous letters, it would be seen that the letters complained of did not truly assert or insinuate the guilt of the pursuer, but only stated that the defenders had probable cause, and acted justifiably and reasonably in submitting the case to the Procurator-Fiscal, not because the pursuer was in fact guilty, but because appearances had led them to think so, and that they could not be blamed for what they had done, nor be considered the less worthy of public support.

But that is not the necessary nor I think the natural meaning of the letters. For example, they mention the adverse evidence of one of the pursuer's witnesses at the trial, a circumstance which of course had nothing to do with the information lodged by the defenders with the police. In short, I consider that the letters naturally mean, or at least may be reasonably understood to mean, and would probably be understood by many people to mean, not only that the defenders had been reasonable, but that the pursuer had been guilty.

It was further argued that the occasion was privileged, and that the pursuer was bound to have averred want of probable cause, and was bound to put malice, which he had averred, in the issue. No authority was quoted in support of the argument that the action was irrelevant, because there was no averment of want of probable cause, and I know of no ground for it.

The argument that malice should be inserted in the issue appears somewhat more plausible. The privilege was said to arise from the provocation which the defenders had received, and the public attack which had been made on them, against which it was said they were entitled to defend themselves. It was maintained that as the letters founded on are admitted, the question of privilege was raised on record, and ought to be settled now and not at the trial. It

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was maintained that the publication of the letters requesting payment of the pursuer's expenses, having regard to the way in which they were expressed, could be regarded as nothing but an appeal to the members of the public who supported the defending society by their subscriptions, and that as the pursuer had chosen to lay his case before the public, the defenders were entitled to do the same.

It seems true enough that the pursuer had no legitimate right to appeal to the public, and it is difficult to doubt that the object was to injure the defenders in the eyes of the public, and in particular of the subscribers; and I think that the occasion might have justified some measure of retort, and that the defenders might have been protected had they confined themselves to self-defence, even though their defence might have glanced on the pursuer. But I cannot see that they were justified in saying and publishing that the pursuer, though tried and acquitted, was really guilty, which is what the innuendo asserts that they did say. No similar case in our own Courts was referred to in which malice had been put in the issue, the recent case of Croucher v. Inglis, 16 R. 774, which was quoted, belonging obviously to a different category.

Reference was made to the case of O'Donohue, Ir. Rep., 5 C.L. 124, and to Odgers on Libel and Slander, p. 232, in regard to the law of libel applicable to newspaper disputes, and to the amount of protection arising from provocation. But I could not see that they bore out the contention that malice should be inserted in these issues.

I think, however, that there should be two issues, and not three. The two first issues relate to the same libel, and I think a jury might be misled if there were two issues with separate schedules of damages to try what is only one question— Sheriff v. Wilson, March 1, 1855, 17 D. 528; Cunningham v. Phillips, June 16, 1868, 6 Macph. 926.

But I think the third issue must be allowed separately, because it regards an advertisement and not a letter, because the date is different, and because it is differently expressed and differently innuendoed.”

The defenders reclaimed, and also gave notice that they would move the Court to vary the issues by the insertion of the words “maliciously” and “without probable cause.”

Parties were heard on Saturday, May 17, and the case was put out for judgment on the following Thursday.

Before judgment was given the pursuer moved the Court for leave to amend his record, or if leave to amend were not granted, for leave to abandon the action. In support of his application he referred to the following authorities— Gelot v. Stewart, March 4, 1870, 8 Macph. 649; Mackenzie v. Munro, March 17, 1869, 7 Macph. 676; Western Bank v. Bairds, March 20, 1862, 24 D. 859; Mackay's Practice of the Court of Session, i. 487–8.

The defenders contended that the amendment could only be allowed on payment by the pursuer of the defenders whole expenses.

The Court allowed the pursuer to amend his record on condition that he paid the defenders' expenses from the date of closing the record till the lodging of answers to the new averments.

The pursuer having paid these expenses, the following averment was added by the pursuer to the record—“With reference to the letter inserted in the Scotsman on 25th November—The statements in said letter which allege or imply that the pursuer was guilty of an offence against the Act for the prevention of cruelty to a horse on the occasion in question are false. The defence stated at the trial on behalf of the pursuer was that at the time the horse was sent out on the occasion in question it was quite well and fit to be worked, but that the sores supervened between the time it was sent out and when it was found in Princes Street, and the pursuer adduced four witnesses who deponed that the horse was quite well and fit to be worked when sent out, and had no sores on it. But the defenders, by suppressing all allusion to the defence, and the testimony given by the pursuer's witnesses, while pretending to give the facts of the case, have given a narrative false in all the particulars applicable to the conduct of the pursuer, and designed to create, and has created, a false representation of the facts. With reference to the advertisement inserted in the Scotsman on 4th December—It is not true that the pursuer was ever guilty of an offence of cruelty to animals or guilty of working a horse with a sore under the collar. Before sending said notice the defenders never communicated with the pursuer in any way. They did not inform him of any complaint made against him, and never asked him to make any explanation. The pursuer had nothing to do about the working of the horse on the occasion in question. He has charge of the stables during the day, but there is another man who has charge of them during the night. On this occasion, as the pursuer has been informed, a cab was wanted for a case of emergency about four o'clock in the morning of the 3rd December 1888. The man in charge sent out the black horse mentioned in the notice.”

Argued for the defenders—1. On the relevancy—The society was entitled to send some answer to the letters which had appeared in the newspapers, and that answer rightly contained a statement of the facts on which the report to the Fiscal had proceeded. A verdict of ‘not proven’ was always a sufficient justification for a prosecution, and the fact that such a verdict had been returned in the pursuer's case was accordingly relevantly referred to in the letter as justifying the defenders' action. There was no assertion that the pursuer knew of the condition in which the horse had been sent out, and therefore there was no libel. The pursuer did not aver that the statement of facts in the letter were false, and that being so, he had set forth no relevant ground of action, and the action

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should be dismissed— Campbell v. Ferguson, January 28, 1882, 9 R. 467. 2. On the issues—Where a person attacked another in the newspapers he must expect a reply, and the question then was whether there was malice in the terms of the reply. The defenders' position being a privileged one, malice must be put in issue—Odgers on Libel, p. 232; O'Donohue v. Hussey, 1871, Ir. Rep., 5 C.L. 124; Laughton v. The Bishop of Sodor and Man, 1872, L.R., 4 P.C. 495.

Argued for the pursuer—1. On the relevancy—The letters would bear the innuendo put upon them, as they were not fairly an answer to the letters of the pursuer and his agent, but contained an attack on the pursuer's character, inasmuch as they repeated a charge of which he had been acquitted. There was no want of a specific averment that the statements in the advertisement were false, and the amendment was sufficient to make the case relevant so far as founded on the letters— Tuson v. Evans, 12 Ad. & E. 2. On the issues—It was unnecessary to insert malice in the issues, as the letters contained the repetition of a charge of which the pursuer had been acquitted. At all events, this was not a clear case of privilege, and the question of whether or not it was necessary for the pursuer to prove malice might be left to the Judge who should preside at the trial— M'Bride v. Williams, &c., January 28, 1869, 7 Macph. 427; Woodgate v. Ridout, 1865, 4 F. & F. 202; Brown v. Croombe, 1817, 2 Stark, 297.

At advising—