Scottish Court of Session Decisions

The pursuer in this action was James Caldwell, Kincaid fleld House, Milton of Campsie, a member of the congregation of the parish church of Campsie, but not of the Kirk Session; the defender was the Rev. Thomas Monro, D.D., minister of the Parish of Campsie. The action arose out of some disputes with regard to a “patronage,” and an “anti-patronage” petition which was circulated in the parish for signature during the month of February 1871. On Saturday, 4th March, there appeared in the Glasgow Herald, a letter criticising some remarks made by Dr Monro from the pulpit on the previous Sunday, and signed “A member of Campsie Parish Kirk Session.” On the following day, Sunday,5th March, Dr Monro alluded to this letter and the circumstances to which it referred, in the following terms:—“One would have thought that this tempest in a teapot would have been allowed to drop, but I observe from the newspaper that some one purporting to be a member of session has written an anonymous letter to the editor, which I have no doubt is a forgery. I have not had time to look at it, but I do not think it will require any notice from me, as it bears internal evidence that it is a forgery, and that the editor has been imposed upon by a so-called member of session;” and this was the first alleged libel of which the pursuer complained. The next day the pursuer wrote a letter to Dr Monro, containing, inter alia, the following passages:—“With reference to the extraordinary charges of the crimes of forgery and imposition made by you in church yesterday against some person whose name you did not mention, I learn that some of the congregation understood that, in making these charges, you were alluding to me. Why any of the congregation should have thought that such a wicked allusion applied to me, I know not. So far as I am concerned, I never dreamt of applying your observations to myself.… I think that, as a member of the church, I am entitled to ask of you as a christian minister to write me, saying you had no intention of applying the charges to me, nor of leading others to suppose that I was the party referred to.”

Dr Monro's reply was to the following effect:—

Manse of Campsie, 6 th March 1871.

“Dear Sir,—In reply to your long note of this morning, I have only time to say that neither you nor any one else was in my thoughts when I made the observations to which you allude, because I knew nothing about the anonymous letter in the Herald except what its internal evidence implies.—Yours,” &c.

On 8th March there appeared in the Glasgow Herald a letter from Dr Monro, stating the grounds on which he had arrived at the conclusion that the letter of the 4th, purporting to be signed by a “Member of the Kirk Session,” did not truly emanate from a member of that body. This was the second alleged libel complained of by the pursuer. On 11th March the pursuer again wrote to Dr Monro, stating that, notwithstanding the assurance contained in the above note written by the latter, it was still the almost universal belief in the parish that he (the pursuer) was the person to whom Dr Monro imputed the crimes of forgery and imposition. The pursuer, therefore, required Dr Monro publicly, from the pulpit, “to withdraw the charges of forgery and imposition” made by him from the pulpit on the previous Sunday, and “to state that, in making these charges, he had no member of the church in his thoughts at the time.” Dr Monro declined to comply with the pursuer's request, whereupon the present action was raised in the Sheriff Court of Stirling, concluding for £100 in name of damages and solatium for the alleged libel.

The Sheriff-Substitute ( Sconce) assoilzied the defender from the conclusions of the action, and the Sheriff ( Blackburn), on appeal, adhered to the interlocutor of his Substitute.

The pursuer appealed to the Court of Session. He pleaded, inter alia:—“(2) The defender having used and uttered and published false and slanderous expressions rashly and recklessly, and the general impression and belief having been thereby created in the minds of the congregation that the pursuer was the party who had committed, or who from the pulpit had been accused of having committed, the said crimes or crime, or practised deceit or other moral misconduct: the pursuer is entitled to redress, and to have his character cleared of the imputation cast upon it by the defender's wrongful act, though the defender may not have intended the said expressions to apply to the pursuer.” “(3) The defender having been made aware that the pursuer was the party to whom the congregation applied his false and slanderous accusations, and having refused to withdraw said accusations as publicly as they were made, he is liable in damages for the slander remaining on the pursuer's character and reputation.” “(4) The defender having caused to be published his said letter of 8th March, after being informed that the pursuer was considered as the party to whom said accusations were being applied, and having rashly and recklessly, repeated the above-mentioned charges, he is responsible,” &c.

Page: 462↓

The defender pleaded, inter alia:—“(2) The defender's statement from the pulpit, not having been made maliciously or without probable cause, he is entitled to absolvitor.” “(4) The defender's statements not having contained or implied any personal reference to the pursuer, and the defender not being responsible for any belief entertained by third parties as to the pursuer being the author of the anonymous letter published on 4th March 1871, the pursuer is entitled to absolvitor.” “(5) The defender having been called on by the pursuer to disavow, and having sufficiently disavowed, any imputation upon the pursuer, is entitled to absolvitor.”

The Solicitor-General, Asher, and Moncrieff, for the pursuer, referred to the cases of Smith v. Gentle, 1844, 6 D. 565; Outram v. Reid, 1852, 14 D. 577; Le Fanu v. Malcolmson, 1 Clerk and Finelly (H.L.), 637; and Kennedy v. Baillie, 1855, 18 D. 138; and to Starkie on Libel, pp. 361, 453, 655; and they contended that the defender was responsible for the consequences of his rash and reckless statement from the pulpit.

Shand and Maclean, for the defender, referred to the cases of Craig v. Hunter, 29th June 1809, F.C.; Torrance v. Weddel, 1868, 7 Macph. 243, 6 Scot. Law Rep. 180; and Wotherspoon v. Gray, 1863, 2 Macph. 38; and they argued that no relevant case had been established.

At advising—