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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Walker v. Cumming [1867] ScotLR 5_220_1 (1 February 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0220_1.html
Cite as: [1867] ScotLR 5_220_1, [1867] SLR 5_220_1
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SCOTTISH_SLR_Court_of_Session
Page: 220↓
Court of Session Inner House Second Division.
v.
Facts:
Held (1) that the pursuer was not bound to put into his issue the words “maliciously and without probable cause” where the act founded on was not the giving of information to the police—in doing which, the defender would be in a position of privilege—but the alleged seizure of property, without a warrant, after the information was given. (2) That a party who circulates a slander to non-official persons is not in a position of privilege merely from first having given information to the police. (3) Statements which held to be a mere expansion of, not inconsistent with the grounds of action set forth in the condescendence. (4) Issue disallowed in respect of defect in specification.
William Walker, photographer, brought this action against John Cumming, photographer, 1 South Hanover Street, Edinburgh, for damages for wrongfully entering his premises at Hawick, and taking away certain photographic materials in his (the pursuer's) lawful possession, which Cumming alleged to have been stolen from him by the pursuer and another.
The pursuer made the following statements, inter alia, in his original condescendence:—“On or about said 3d May 1867, the defender, in the Railway Hotel, Wilton, Hawick, occupied by Robert Learmond, innkeeper in Wilton, Hawick, in presence of the said Robert Learmond, and Joseph Lush, servant to the pursuer, or one or other of them, and also in presence of several other parties, falsely and calumniously stated that the pursuer and the said Joseph Laurie Cox had been carrying on a system of robbing him of his property; that Cox would soon be in jail; and that, so soon as he got to Edinburgh, he would get a warrant for apprehending the pursuer on said charge; or used words of a like import and effect of and concerning the pursuer.
“The defender repeated the said slander of and concerning the pursuer between the 4th and 7th May 1867, at different places within the city of Edinburgh, to George Mason, commercial traveller, then in Edinburgh; John Aitken, presently photographer at Hawick; and the said Joseph Laurie Cox, or one or more of them. He also repeated said slander in Edinburgh, during said period, to various other parties. Further, on or about the said 4th May 1867, he repeated said slander at the Railway Station, Galashiels, to the said George Mason.”
The pursuer proposed the following issues:—
“1. Whether, on or about the 3d day of May 1867, the defender, along with John Nicol, superintendent of police at Hawick, and Joseph Bailey Cartlidge, photographer there, wrongfully and illegally entered the premises at Wilton, Hawick, occupied by the pursuer, and took possession of, and carried away several glasses, and an album containing photographic prints, or one or other of them, belonging to or in
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the lawful possession of the pursuer, to the loss, injury, and damage of the pursuer? 2. Whether, on or about the 4th day of May 1867, and in or near the Railway Hotel, Wilton, Hawick, now or lately occupied by Robert Learmond, innkeeper, in the presence and hearing of the said Robert Learmond, of Mrs or Learmond, his wife, and of Joseph Lush, residing in Moray Street, Edinburgh, or one or other of them, the defender did falsely and calumniously say that Joseph Laurie Cox, at that time in the employment of the defender, had been robbing him (the defender) of his property, and would be in jail that night; and that so soon as he (the defender) got to Edinburgh, he would get a warrant to apprehend the pursuer on the same charge; meaning thereby that the pursuer had been engaged, along with the said Joseph Laurie Cox, in robbing the defender; or did use words to the same effect of and concerning the pursuer, to the loss, injury, and damage of the pursuer?
3. Whether, on or about the said 4th day of May 1767, and at or near the Railway Station, Galashiels, in presence and hearing of George Mason, commercial traveller, in the employment of Mr John Spencer, photographic warehouse, Glasgow, the defender did falsely and calumniously say that he had found out a fine thing in connection with his (the defender's) place; that it was no wonder he was poor, as he had been robbed for months; that he had found as much stuff in the pursuer's place, taken from his (the defender's) place, as it had taken three men to carry away; that Cox was then in jail; and that the pursuer would be in that night; meaning thereby that the pursuer, along with the said Joseph Laurie Cox, had been engaged in robbing him, the defender, and would, be criminally apprehended that evening; or did use words to the same effect of and concerning the pursuer, to the loss, injury, and damage of the pursuer?
4. Whether, on various occasions between the 4th and 7th days of May 1867, both inclusive, and at various places in the city of Edinburgh, the defender did falsely and calumniously say, in presence of John Aitken, photographer in Hawick; John Macnee, residing in Princes Street, Edinburgh; and Robert Moodie, residing at Swanfields, Bonnington Road, Edinburgh, or of one or more of them, that the pursuer, in connection with the said Joseph Laurie Cox, was guilty of robbing him, the defender, of his property; or did use words to the same effect of and concerning the pursuer, to the loss, injury, and damage of the pursuer?
Damages laid at £500 sterling.”
Parties having failed to adjust these issues before the Lord Ordinary ( Ormidale), his Lordship reported them to the Inner-House, adding the following note:—
“It was objected by the defender to the first of the pursuer's proposed issues, No. 12 of process, that it does not charge malice and want of probable cause; but it appears to the Lord Ordinary that there is no sufficient ground for this objection, and that the issue may be approved of for trial. (See Pringle v. Bremner § Stirling, as decided in House of Lords, 6th May 1867, 5 M'P., page 55 of House of Lords Cases.) The Lord Ordinary understood that ultimately the defender did not insist on any objection to the second of the pursuer's proposed issues. The defender, however, objected to the third and fourth of the pursuer's proposed issues, in respect that, as regards the former, there was no proper foundation paid for it in the original condescendence annexed to the summons; and that, as regards the latter, the places where the alleged slander was uttered are not specified, either in the issue or the record. The Lord Ordinary is inclined to think that these objections are not without foundation; but perhaps the pursuer might be yet allowed to make his third issue more conform than it is to his statement in the original condescendence, and to specify places in his fourth issue.”
Black and Guthrie for pursuer.
A. Moncrieff and Gloag for defender.
The following cases were quoted:— Pringle, 5 M'P., 55; Cameron, 1st February 1856, 18 D., 423; Dallas v. Mann, 15 D., 746; Watson v. Burnet, 24 D., 494; Bissett, 2 M'P., 1096; Martin, 6 D., 981; Innes v. Swanston, 20 D., 250; Sutherland v. Robertson, 3 S. Law Reporter, 364; Macfarlane on Issues, p. 82.
At advising—
Lord Justice-Clerk—The defender objected to all the issues. In the first and second, he proposed that the words “maliciously and without probable cause” should be inserted. But this contention is inadmissible. The pursuer did not seek an issue as to the giving of information to the police, in which the defender certainly had a privilege, and would have been entitled to have these words in the issue; but he asked an issue upon a separate question, viz., the alleged seizure of his property without a warrant after this information had been lodged. The act alleged against the defender was quite consistent with a case of wrongdoing in which no privilege existed. If the act turned out to have been done in the course of a justifiable inquiry into the alleged crime, that would come out at the trial, and might have effect given to it. As to the second issue, it is out of the question that a person who had given information of a crime to the police should be held to have a privilege to circulate the slander to persons in no official position. The objection to the third issue is, that while it was properly extracted from the revised condescendence, it rested on a ground of action materially different from that contained in the original condescendence. The original condescendence, after specifying with some detail the slander set forth in the second issue, merely said as to this act, “Further, on or about the said 4th May, he repeated the said slander at the Railway Station, Galashiels, to the said George Mason.” The third issue, following the words of the revised condescendence, was whether “the defender did falsely and calumniously say that he had found out a fine thing in connection with his (the defender's) place; that it was no wonder he was poor, as he had been robbed for months; that he had found as much stuff in the pursuer's place taken from his (the defender's) place, as it had taken three men to carry away; that Cox was then in jail; and that the pursuer would be in that night; meaning thereby that the pursuer, along with the said Joseph Laurie Cox, had been engaged in robbing him (the defender), and would be criminally apprehended that evening,” &c. This is a mere expansion, not inconsistent with, but explanatory of, the original article, and allowed the issue proposed. I come to a different conclusion as to the fourth issue. There is no intimation as to any one particular place in Edinburgh, or any occasion between the
Page: 222↓
The other judges concurred.
The Court accordingly allowed the first three issues, and refused the fourth.
Expenses reserved.
Solicitors: Agent for Pursuer— L. Mackersy, W.S.
Agent for Defender— R. Menzies, S.S.C.