Scottish Court of Session Decisions

This was an action of damages for defamation at the instance of the Reverend John Cunningham of Crieff, against David Phillips, proprietor, publisher and editor of the Strathearn Herald. The issues as reported to the Inner-House by the Lord Ordinary were six in number; the first being:—

1. “(1) Whether in the number of the said newspaper published on or about 12th October 1867, the defender printed, published and circulated, or caused to be printed, published and circulated, an article entitled ‘The Organ again,’ and paragraph referred to the said article, both contained in schedule A. hereunto annexed; and whether said article and paragraph, or either of them, or part of them or either of them, were of and concerning the pursuer, and falsely and calumniously represented or insinuated that he, along with others, had solicited or procured the raising of a small-debt action in the Sheriff-court of Perthshire, at the instance of David Arnot, clerk and letter-writer in Crieff, against Alexander M'Nab, weaver there, for the purpose of eliciting something to remove the disgrace alleged by the defender to hang on the promoters of a movement for the introduction of on organ into the parish church of Crieff; and falsely and calumniously represented or insinuated that the pursuer had dismissed one of his best Sabbath school teachers without reason assigned, because he was opposed to the organ, and might object to its being played in the Sabbath school; or contains any one or more of the said false and calumnious representations or insinuations, or false and calumnious representations or insinuations of the same or similar import, to the loss, injury, and damage of the pursuer?”

The second issue was laid on an article of 26th October 1867, alleged to represent and insinuate that the pursuer and others had instituted the said action, and were endeavouring to destroy the reputation of their neighbours.

The third issue was laid on an article of 2d November 1867, alleged to represent or insinuate that the pursuer knowingly and wilfully instigated or abetted a lawless or rebellious act against the authority of the Church of Scotland.

The fourth issue was—

“Whether, in the number of the said newspaper published on or about 9th November 1867, the

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defender falsely and calumniously printed, published and circulated, or caused to be printed, published and circulated, as part of the evidence given in said small-debt actions by a Miss M'Nab, the passage contained in schedule D. hereunto annexed, and whether the said passage, or part thereof, is of and concerning the pursuer's manse; and falsely represents or insinuates that the said manse was a grossly immoral and ill-regulated house, and that great numbers of bastards were begotten in it, or contains one or more of said false and calumnious representations or insinuations, or false and calumnious representations of the same or similar import, to the loss, injury, and damage of the pursuer?”

The fifth issue put the question, whether certain articles published on 27th November 1867 falsely and calumniously represented that the pursuer had been guilty of wilful falsehood, and was a likely person to be guilty of perjury if he were required to repeat his false statements on oath?

The other issue put the question, whether certain articles published on 16th November 1867 falsely and calumniously represented or insinuated that the pursuer had instigated certain proceedings in the kirk-session of his parish against M'Nab and his wife for the sin of perjury, charged against them from vindictive or other selfish and improper motives?

After some discussion on the issues, the Lord President suggested that the present was a case in which a general issue might be taken, laid on a series of defamatory articles, amounting to a continuous persecution, and referred to the cases of Sheriff v. Wilson, 1 March 1855, 17 D. 528, and M'Laren v. Ritchie ( Scotsman Newspaper), 8 July 1856 (unreported).

The pursuer then proposed an issue, “It being admitted, &c. &c. (then followed the articles and paragraphs complained of), Whether the said articles and passages, or any parts thereof, are of and concerning the pursuer; and whether the pursuer is thereby calumniously and injuriously held up to public hatred, contempt and ridicule, to his loss, injury, and damage?”

At advising—