Scottish Court of Session Decisions

James Currie, a builder, and Thomas Scott, a commercial traveller, raised an action of damages for slander against Mrs Janet Scott or Weir, spirit merchant, Railway Inn, Milngavie.

The pursuers averred—“(Cond. 2) On or about Friday the 7th day of July 1899 the pursuers visited the defender's spirit shop, known as the Railway Inn, Milngavie, to transact certain business, and entered one of the rooms of said shop, in which they used an ink-bottle supplied by and belonging to the defender, in discharging an account, and after partaking of certain refreshments left the shop. (Cond. 3) On said date the. defender, in her said shop, and in presence of Constable Vance, Milngavie (who had called at her request), said of and concerning the pursuers ‘James Currie, builder, and another man whom I do not know’ (by whom she meant the pursuer Thomas Scott), were in the room to-day, and have stolen an ink-bottle belonging to me. I am certain that they, or one of them, have taken it, as no-one entered the room after they left, and I found the contents in the ashpan'—or words of like import and effect. On or about the same date the defender also made similar statements regarding the pursuers to Inspector M'Intyre, Milngavie, and she requested the said Constable Vance and Inspector M'Intyre to search the houses and persons of pursuers for said ink-bottle. (Cond. 5) The statements so made by the defender were quite unfounded, and were false, calumnious, and malicious, and without any probable cause.”

The defender pleaded—“(1) The pursuers' statements are irrelevant, and insufficient to support the prayer of the petition.”

On 10th October 1899 the Sheriff-Substitute ( Gebbie) before answer allowed parties a proof of their averments.

The pursuers appealed for jury trial.

James Currie proposed the following issue for the trial of the cause:—“(1) Whether, on or about the 7th day of July 1899, and within the Railway Inn, Milngavie, occupied by the defender, the defender, in presence and hearing of Constable Vance, Milngavie, uttered the following words, or words of like import and effect: ‘James Currie, builder and another man whom I do not know’ (meaning thereby the pursuer Thomas Scott), ‘were in the room to-day, and have stolen an ink-bottle belonging to me. I am certain that they, or one of them, have taken it, as no-one entered the room after they left, and I found the contents in the ashpan;’ and whether said statement is in whole or in part of and concerning the pursuer James Currie, and is false and calumnious, and was uttered by the defender maliciously and without probable cause, to the pursuer's loss, injury and damage? Damages laid at £100.”

A similar issue was proposed by Thomas Scott.

Argued for defender—The averments of malice on record were irrelevant for want of specification. What the defender had done had been in discharge of her duty

Page: 383↓

the charge was made to the police constable and inspector, and these were the proper persons to whom the defender was entitled to make such a charge if she believed it. Privilege being thus disclosed, the mere statement of malice on record was not enough to make the case relevant; there must be facts averred from which malice could be inferred— Farquhar v. Neish, March 19, 1890, 17 R. 718; Reid v. Moore, May 18, 1893, 20 R. 712, opinion of Lord Trayner; Douglas v. Main, June 13, 1893, 20 R. 793. There was no case in the books where a charge made to a police constable had been the subject of a jury trial without there being averments on record plainly showing malice.

Counsel for pursuers were not called on.