Scottish Court of Session Decisions

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Cite as: [1866] ScotLR 2_6_2, [1866] SLR 2_6_2

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

2 SLR 6_2

Gardner

v.

M'Gaghans.

( Ante, vol. i., p. 205.)

Subject_1Reparation
Subject_2Slander
Subject_3New Trial.
Facts:

Verdict of a jury in an action of damages for slander set aside as contrary to evidence, and a new trial granted.

Headnote:

This was an action of damages at the instance of John Gardner, joiner, residing in Home Street, Edinburgh, against Mrs Mary Keddie, now wife of Michael M'Gaghan, and the said Michael M'Gaghan for his interest. The ground of action was that the defender, within her own residence in Edinburgh, falsely and calumniously accused the pursuer of having stolen her late husband's watch, and thereafter caused him to be apprehended and taken to the Police Office. The following issues were sent to the jury:—

“1. Whether, on or about Monday the 24th day of July 1865, and in or near the female defender's house in Spittal Street, Edinburgh, the female defender, maliciously and without probable cause, apprehended, or caused the pursuer to be apprehended, and thence conveyed to the Fountainbridge station of the Edinburgh City Police, to the loss, injury, and damage of the pursuer?

2. Whether, on or about the 24th day of July 1865, and on the way between the female defender's house in Spittal Street and the Fountainbridge station of the Edinburgh City Police, the female defender did falsely and calumniously, in the hearing of Mrs M'Gregor,
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wife of Donald M'Gregor, residing in Spittal Street, Edinburgh, say that the pursuer had stolen her late husband's watch, or did falsely and calumniously utter words to that effect of and concerning the pursuer, to the loss, injury, and damage of the pursuer?”

Damages laid at £250.

The trial took place last session before Lord Jerviswoode. After an absence of three hours, the jury, by a majority, found for the pursuer, and assessed the damages at £10.

The evidence adduced in support of the first issue was generally to the effect that the pursuer came to the defender's house, and that they were for some time together in a room engaged in general conversation. A watch belonging to the defender's late husband lay usually on the mantelpiece, and about twenty minutes after the pursuer came into the house was missed by the defender. She thereupon charged the pursuer with having stolen it, and went for police-officers, whom she instructed to take the pursuer into custody. The police-officers said that the defender did so with hesitation, and when the parties reached the Police Office the defender did not press the charge, and the pursuer was liberated.

The only evidence relied upon in support of the second issue was the testimony of one witness, who said that when the defender was going for the police she called in at her house, which is on the same stair as the defender's, and stated that she had lost her watch, and she thought that she had the man in the house who had taken it.

At the end of last session the defender applied for a new trial, and obtained a rule upon the pursuer to show cause why it should not take place.

To-day, in showing cause,

Judgment:

Gifford, for the pursuer, argued that the evidence of malice, which was to substantiate the first issue, was to be infered from the facts and circumstances of the case, and particularly from the manner in which the defender conducted herself on the occasion. It was not necessary to prove either that the malice was direct or antecedent to the fact. If it could be shown that the defender had acted with utter regardlessness and recklessness there was what the law held to be malice, and there being therefore a case to go to the jury, the Court should not usurp its function by setting aside the verdict. The second issue was established by the evidence of the witness, who said that the defender had stated to her she thought she had the thief in her house. Further, the Court should not grant a new trial, in respect the sum awarded by the jury in name of damages was so small. The rule in England was that if a jury awarded a sum under £20 a new trial was refused. Bayne v. M'Gregor, 14th March 1863; 1 Macq. 615, and Chitty's Practice were cited.

A. Moncrieff and W. A. Brown, for defenders, were not called upon.

The Lord Justice-Clerk said—The rule which the defenders formerly obtained will now be made absolute, and I regret that we cannot put Lord Jerviswoode in a position to throw the case out of Court altogether. I never saw a more trashy case in Court, and if the pursuer has saddled himself with two trials, he has himself to blame for it. The evidence of malice applicable to the first issue is a total blank, and there is just as little evidence in support of the second. In regard to Mr Gifford's argument, founded upon the English practice of not granting a new trial where the sum awarded by the jury is under £20, I can only say that we have no such rule here, and besides, Mr Gifford has not shown us that that is the practice in England in cases where character is affected.

The other Judges concurred; Lord Neaves remarking, in reference to his opinion in Bayne v. M'Gregor, that it was quite true that malice might be made out inferentially from facts and circumstances, but there was no suggestion of malice in the present case.

The rule accordingly was made absolute, and a new trial granted.

Solicitors: Agent for Pursuer— James Renton, S.S.C.

Agent for Defender— James Bell, S.S.C.

1866