Scottish Court of Session Decisions

This was an action of damages for slander at the instance of Alexander Stewart, farmer, Moulinarn, Perthshire, against George Kyd, solicitor, Perth. The defender acted as agent for the pursuer in an action of breach of promise against the defender's son John Stewart. The pursuer alleged that at the proof in said action was taken before Sheriff Barclay at Perth, on Wednesday the 22d of December 1869. After some evidence had been led, the defender, acting as Miss Scott's agent, adduced the pursuer as a witness. The pursuer was put upon oath, and his examination had just commenced when the following question was put to him by the defender, “Did not the minister or any of the office-bearers tell your son, in your presence, that he had behaved to Miss Scott like a scoundrel?” The pursuer answered “No” to this question; and Mr M'Leish, the agent on the other side, having observed upon it, “That's quite unnecessary, my Lord just a little newspaper sensation,” the defender then made the following statement, or used words to a similar effect:—“I want the truth, and I don't expect it from this man, or from any of his clan.” The following issue was proposed by the pursuer:—

“Whether the defender, in open court, at Perth, on 22d December 1869, when the pursuer was adduced and put on oath as a witness for Miss Catherine Scott, in an action at her instance against John Stewart, did falsely and calumniously say of and concerning the pursuer, ‘I want the truth, and I don't expect it from this man, or any of his clan,’ meaning that the pursuer was not speaking the truth as a witness, and was an untruthful person, to the loss, injury, and damage of the pursuer?” Damages laid at £500.

The Lord Ordinary ( Ormidale.) approved of this issue. In a note his Lordship said—“The defender objected to the pursuer's issue as now approved of on the ground that it ought to contain a charge of malice, in respect that, on the pursuer's own showing, the case belongs to the privileged class. It may turn out, when the facts are fully expiscated at the trial, that the defender, when he uttered the slanderous expressions in question, was protected by privilege; but at present, and looking at the case as it is stated by the pursuer, the Lord Ordinary is not satisfied that the defender is entitled to any privilege. It does not appear from the pursuer's statements that the defender, when he uttered the expressions complained of, was in the course of addressing the Sheriff on the import of the proof,—that indeed could not be, for the proof was not concluded; or that he was in the course of objecting to the admissibility of the pursuer as a witness,—that indeed could not be, as the pursuer was adduced as a witness by the defender himself; or that he was in the course of objecting to or supporting the admissibility of any question,—and that could not be, as the only question to which the expressions complained of can be said to have had any relation had been put and answered without objection. In short, the Lord Ordinary cannot see, from the statements of the pursuer—which, of course, he undertakes to prove—that the defender was, when he uttered the expressions complained of, in the exercise of any right, or discharge of any duty, professional or otherwise. On the contrary, it rather appears to the Lord Ordinary at present, and judging solely, as he is bound to do, from the pursuer's own statement, that the defender, in uttering these expressions, went beyond his right and duty, and rashly and publicly made a slanderous observation regarding the pursuer, which neither had, or could have had, any bearing or effect on the cause in which he was at the time engaged as agent for one of the litigants. It may be that the defender acted at the moment on some provocation given him by an irregular remark of the opposite agent, but that cannot be held to excuse him in making an unjustifiable attack in open court upon the pursuer, whom he had just commenced examining as a witness for his own client. The Lord Ordinary thinks, therefore, that the pursuer is entitled to an issue in the form of that now approved of. It may, however, as the Lord Ordinary has already remarked, turn out at the trial that the defender was privileged in what he said,—and the Lord Ordinary is not to be understood as prejudging that view of the matter in the slightest,—in which event he will be entitled to the benefit of his plea of privilege, just as if the pursuer expressly charged malice against him in the issue. (See M'Bride v. Williams & Dalziel, 28th January 1869; 7 Macph. 427.) The defender therefore cannot, in the end, suffer any injury by the course which has now been taken should it appear at the trial that, in uttering the expressions complained of, he was in the exercise of his right, or discharge of his duty, as a professional man, acting on behalf of a litigant.

“No objection was taken to the terms of the pursuer's issue, assuming that he is not bound to insert in it a charge of malice against the defender.”

The defender reclaimed.

Strachan for him.

Solicitor-General and Lancaster in answer.

At advising—