Scottish Court of Session Decisions

This was an action of damages brought by Matthew Steel, wright in Ochiltree, against Andrew Smith, secretary of the Ochiltree Gas Company, the allegation being that the defender had written to the pursuer a letter, falsely and calumniously charging him with embezzling the funds of thesaid Gas Company, of which the pursuer had formerly been collector. The defender pleaded that the action as laid was irrelevant, in respect that the letter was privileged, and malice was not averred.

Upon the record being closed, the case was sent to the Lord Ordinary's summary debate roll, the new Court of Session Act prescribing that the parties shall lodge such issues as they propose before the day fixed for the summary debate. The pursuer had failed to lodge his issues before that day, and at the summary debate the defender pleaded, in addition to his plea of irrelevancy, that the action should be dismissed, in respect the pursuer had failed to comply with the provision of the statute. The Lord Ordinary refused to dismiss the action on this ground, and further refused to hold the action irrelevant. The defender reclaimed.

Young and Crichton for him.

Clark and Black for pursuer.

The Court were of opinion, upon the point of form, that, although the failure to lodge issues previous to the summary debate was an irregularity to be condemned, and to be visited with a penalty in the way of expenses when the Lord Ordinary thought that proper, yet it did not go the length of entitling the defender to get the action dismissed. Upon the question of relevancy, their Lordships thought that the pursuer's averments did not disclose a case of privilege, and, therefore, that it was unnecessary to aver malice.