Scottish Court of Session Decisions

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 73, enacts:—“It shall be lawful, by note of appeal under this Act, to remove to the Court of Session all causes originating in the inferior courts in which the claim is in amount above £40, at the time and for the purpose and subject to the conditions specified in the 40th section of the Act 6 Geo. IV, cap. 120, and such causes may be remitted to the Outer House.”

The Judicature Act 1825 (6 Geo. IV, cap. 120), sec. 40, contains this proviso:—“But it is hereby expressly provided and declared that in all cases originating in the inferior courts in which the claim is in amount above £40, as soon as an order or interlocutor allowing a proof has been pronounced in the inferior courts (unless it be an interlocutor allowing a proof to lie in retentis, or granting diligence for the recovery and production of papers), it shall be competent to either of the parties, or who may conceive that the cause ought to be tried by jury, to remove the process into the Court of Session, by bill of advocation, which shall be passed at once without discussion and without caution….”

Miss Mary Smellie and Miss Jeanie Smellie brought an action in the Sheriff Court at Airdrie against John Whitelaw, in which each claimed £100 sterling as damages for slander.

They averred, inter alia—“(Cond. 2) For some years prior to October last the pursuers carried on business as drapers and milliners at 54 Bank Street, Langloan, Coatbridge, under the firm name of M. & J. Smellie, of which firm they were the sole partners (Cond. 3) On 3rd October 1906 the stock and fittings in the shop at 54 Bank Street were sold by the pursuers to the defender, and were taken over by him on the same date, on which date the firm of M. & J. Smellie was dissolved. Defender also entered into possession of the premises on that day. (Cond. 4) Thereafter the defender, on 6th October 1906, exhibited on the front window of the said premises facing Bank Street, Langloan, a large bill containing the following words, viz. — ‘Smellies’ and another bankrupt stock have been purchased at enormous reductions and will be sold at less than cost price.’ (Cond. 5) The words ‘Smellies’ and another bankrupt stock,’ occurring in the before-mentioned bill, plainly stated, or at least clearly implied, that the pursuers and their firm of M. & J. Smellie were bankrupt or insolvent and unable to pay their debts or the debts of their firm. The bill was read or interpreted by the public as having that meaning, and report to that effect was very common among pursuers' friends and many others. (Cond. 6) As soon as it was known to the pursuers that this bill was being exhibited, they on 9th October 1906 drew the defender's attention to it by letter from their law agents, and demanded that it be instantly taken down. Instead of doing so, the defender, on the following day, caused the letters ‘nother’ of the word ‘another’ to be cut out or obscured, a blank being left in the wording of the bill where these letters had occurred. It was not till 12th October that the bill was taken down, and a new and unobjectional

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bill substituted therefor. (Cond. 7) The aforesaid statement or implication is false and calumnious, and in consequence of the widespread publicity given to the report that they and their firm were bankrupt, the pursuers have each been occasioned grievous mental anxiety and pain, and their private and business reputation and financial credit have been seriously injured, and are likely to be injured in the future.”

The Sheriff-Substitute having allowed a proof, the pursuers appealed to the Second Division of the Court of Session, and proposed issues for the trial of the cause by jury.

Argued for the defender—(1) The action should be dismissed, as the record disclosed no relevant ground of action. The members of a dissolved firm could not sue for damages for slander of the firm. (2) At any rate the case should be remitted to the Sheriff for proof, as it did not disclose a claim which could reasonably be entitled to a verdict of even £40— Sharples v. Yuill & Co., May 23, 1905, 7 F. 657, 42 S.L.R. 538.

Argued for the pursuers — (1) The case was relevant enough, for, although the firm was dissolved, all the partners were suing. (2) They were entitled to trial by jury, as it was impossible to say, looking to the pleadings, that the pursuers could not possibly recover £40 — Duffy v. Young, Nov. 3, 1904, 7 F. 30, 42 S.L.R. 40. This was not a case of some trifling physical injury, the extent of which was readily ascertainable, but a case of attack upon two traders' financial soundness which might have far reaching effects. All the previous cases where jury trial had been refused were cases of the former description.