Scottish Court of Session Decisions

This was an action of damages for alleged slander, and for falsely accusing the pursuer of a crime to the criminal authorities. The pursuer Alexander Lightbody was a boy about 16 years of age, and was at the time of the events which led to this action in the employment of James Smith, a tailor and clothier in Dairy Road, Edinburgh. The defender was agent of the branch of the Commercial Bank at Grosvenor Street, Edinburgh, and he acted also as teller at that branch. For some months before the month of August 1881 the pursuer had been frequently sent by his master Mr Smith to the defender's branch of the Union Bank. There was a copy of Mr Smith's ordinary signature in the bank books.

On 4th August 1881 there was presented to the defender in the bank at Grosvenor Street (hereinafter called the “bank”) a cheque on the Union Bank of Perth for £5 drawn by Mr John Ingram of Perth, dated at Perth August 3, 1881. This cheque was in favour of Holtum & Welsh, clothiers, Edinburgh, or bearer. It was crossed “generally” with the words &co It was not endorsed by Holtum & Welsh, but on the back of it were the words “J. Smith.” This cheque was cashed by the defender, and it was admitted that he afterwards, on it turning out that the endorsation was fraudulent and that the cheque had been stolen from Holtum & Welsh, stated to Mr Smith, the pursuer's master, that in his opinion the person who presented it and received the money was the pursuer, and that he made a similar statement to the police. It was also admitted that the pursuer had been apprehended and tried at the Sheriff Summary Court in Edinburgh on a charge of falsehood, fraud, and wilful imposition, and that he had been acquitted, the verdict being one of not proven. It was to recover damages for alleged injury to his character and reputation in consequence of these proceedings that the present action was raised. The cheque, as was ultimately admitted by both parties, had been stolen by a boy named Farquharson from a letter in which it was enclosed to Holtum & Welsh.

He pleaded inter alia—“(2) The actings complained of having been under privilege and bona fide, the defender should be assoilzied.”

The Lord Ordinary (Adam) adjusted the following issues for the trial of the cause—“(1) Whether on or about the 11th day of August 1881, in the shop occupied by James Smith, tailor and clothier, Dairy Road, Edinburgh, the defender, in the presence and hearing of the said James Smith, falsely, calumniously, maliciously, and without probable cause, said of and concerning the pursuer that he presented to the defender a crossed cheque for £5, dated 3d August 1881, drawn by John Ingram upon the Union Bank of Scotland, Perth, payable to Messrs Holtum & Welsh, or bearer, with the writing ‘J Smith’ across the back thereof, and obtained payment from the defender of the sum of £4, 19s. 6d. therefor; or did falsely, calumniously, maliciously, and without probable cause, use or utter words of the like import or effect of and concerning the pursuer, meaning thereby to represent that the pursuer was guilty of uttering a cheque which he knew to be forged, to the loss, injury, and damage of the pursuer? (2) Whether on or about the 15th day of August 1881 the defender falsely, calumniously, maliciously, and without probable cause informed, or caused information to be given to Robert Bruce Johnstone, Procurator-Fiscal of the City of Edinburgh, falsely accusing the pursuer of having uttered the foresaid cheque, in consequence of which the pursuer was apprehended, detained in the prison of Edinburgh for eleven days or

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thereby, and tried before interim Sheriff-Substitute Baxter at Edinburgh on a charge of falsehood, fraud, and wilful imposition, which was found not proven—to the loss, injury, and damage of the pursuer? Damages laid at £200.”

The evidence led, as recorded in the notes of the presiding Judge, was to the following effect:—The pursuer stated that he was sent to the bank on 11th August to pay in money; that the defender there said he wished to see him, and showed him a cheque, and asked him where he got it. That he said he had never seen it before. That the defender then said, “You passed that last Tuesday.” That he (pursuer) replied that he had been away on holiday then; but that defender said he knew his face quite well, and that he had passed the cheque. He also deponed that he was taken to the bank several days afterwards by a detective, and that defender then said he had been wrong about its being Tuesday, as it was Thursday, and repeated that he was confident that pursuer was the person, and that he persisted in this notwithstanding pursuer's declaration that he was at Granton on the day in question. He then narrated the circumstances of his trial as above detailed. He denied knowing Farquharson, but admitted knowing him by sight. He denied having ever spoken to him in Princes Street Gardens, Edinburgh. He admitted also that he himself had a slight eruption on his face about the time when the cheque was presented, which arose from cold. He stated that his master always signed “James Smith,” and that the “J. Smith” was neither like his writing nor his master's.

Mr Smith, the pursuer's master, deponed that there was a fac-simile of his signature “James Smith” at the bank, and that it was quite unlike the “J. Smith” on the cheque. With regard to the matter founded on in the first issue, he deponed—“The defender called on 11th August, and asked if I had sent pursuer with a cheque on the 4th. I think he said in whose favour it was. I said no. He seemed puzzled. I do not think he showed the cheque…. He came back again in about an hour. He said there was some mistake. He showed me the cheque. I had never seen it before. He said pursuer came and got it cashed. I said I had never sent it to the bank. He asked if pursuer was in, and I said no, but I would send him to the bank and he could speak to him. Defender described the boy, and referred to the mark on his face. He said it was he who presented the cheque. He seemed quite confident…. He said he would put it to the boy himself. He said he had a snouted cap and dullish eyes. This was to be sure it was the boy. That is the fact, and I said yes he had. He wanted to see the boy to face him with it.”

The boy Farquharson deponed that he was the person who stole the cheque from Holtum & Welsh, with whom he was an errand-boy; that he wrote “J. Smith” on the cheque, intending it to pass for the signature of Mr Smith, the pursuer's master, whom he knew of through a boy called Chalmers; that he went into the defender's bank and presented the cheque; that the defender said to him “Is this Smith at Dalry?” and he said yes, and then got the money and spent it. He also deponed that he did not know the pursuer, though he had seen him before the events to which the trial related, and had heard his name. In cross-examination he admitted that at the police office he had in answer to questions stated that he and the pursuer had “made it up together;” that he (witness) should get the money on behalf of both; and that he met pursuer by arrangement after writing “J. Smith” on the cheque, and that waited till he came out with the money. He pursuer then went into the bank and he (witness) explained, however, that he had said this because the police would not believe anything else, and that it was not true, and was inconsistent with other accounts which he gave to the police.

Two boys who were called for the pursuer said that they had gone with him to Granton both on Thursday the 4th August and on the preceding Tuesday, and that they had been there the whole day from ten o'clock. Durham Greig, the officer in charge at the Central Police Office on 11th August, deponed that the defender called on the evening of that day and showed the cheque, and said it had been presented at his bank by a boy in the employment of Mr Smith; and that in answer to witness' questions he said that he knew the boy, because he had been in the habit of coming to the bank on Mr Smith's business. He deponed that this information was given and taken down in quite a usual and ordinary manner, and that the pursuer exhibited no temper or feeling in the matter.

Mr Baxter, advocate, who was interim Sheriff-Substitute of Midlothian in September 1881, deponed that at the trial, which took place before him, the defender exhibited not the slightest animus or desire to have the case pressed against the defender, but gave his evidence distinctly and calmly, saying nothing except in reply to questions. He distinctly swore then that the pursuer presented the cheque.

The defender was examined on his own behalf, and stated that from acting as teller at the bank he knew the pursuer perfectly well, and that he had come frequently to the bank for some months; that he remembered the presentation and cashing of the cheque on 4th August, and that it was sent to Perth the same day, whence it was in a few days returned with an intimation that something was wrong, and that inquiry must be made. He deponed that the pursuer was the person who presented it; that he handed it over the counter, and that he (defender) looked at it, and thought it peculiar “that one tailor (Holtum & Welsh) should deal with another” (Smith); that he looked a second time at the boy, and said “in my own mind at the time, I have no doubt that is Smith's boy that the cheque being payable to the bearer he was justified in cashing it; that he next heard of it on the morning of the 11th, and then in consequence of the intimation from Perth above mentioned called on Mr Smith at 9 a.m. He gave an account of his conversation with Smith somewhat as follows:—“I think I took the cheque with me. I said,’ There is a cheque which was cashed by your boy on the 4th,’ and he said ‘I got no cheque’ (then). I said ‘I have no doubt it was your boy; does he not wear a peaked cap, and have dullish eyes and a flabby sort of face? ‘He said’ Yes, that's the description of my boy.’ I said ‘This is very strange.’ I returned home. I went back to Smith's at a quarter before ten. I said ‘I am quite satisfied in my own mind it

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was your boy.’ He said the boy was not in just then. I proposed that he should send him to the bank with money, and I should ask him there about the matter. Smith sent him. There was no one else in. I went round with the cheque in my hand and stood beside him, and said ‘What did you do with the money you got for that cheque?’ and he said ‘I never saw that cheque before.’ I asked him to come into my private room, and I said, ‘I have no doubt you got the money, and I explained to him that I had looked twice at him, and I said it was a serious matter, and that he had better confess it, and if he did not I would put it into the hands of a detective. He said he did not know anything about it, and had been at Granton on the day to which I alluded. I then went to Holtum & Welsh with the cheque, and saw Mr Welsh, and asked him if he had seen the cheque, and he said he had not, but that he had had some correspondence about it. He recommended me to go up to the lost-letter department at the Post Office, to see about the letter in which it came. I did so, and the official in charge recommended me to go to the detective department at the Police Office. I went there in the evening, and I gave information to Durham Greig. He said he would take a note of it and would send Detective Ferguson down. Ferguson came, and I showed him the cheque and said the boy who presented it was in the employment of Smith, and that I was satisfied on that point, but that the pursuer denied it, and there having been nobody else in the bank at the time I cashed it, it was for him to consider whether he would do anything. He said he would go to Holtum & Welsh and see if they had any boy who lived in the neighbourhood of Dalry. He ascertained that they had boys who lived there, but that they were away on holiday and would not be back till the Monday. I went and met him there on the Monday, and meantime the foreman had got the signature of two boys with, J. Smith' below the signature, and on comparing these we agreed that the writing on the cheque was like the writing of a boy Farquharson. Farquharson being brought, the detective said to him, showing the paper signed by him, ‘Is that your writing?’ He said it was, and the detective then showed him the writing on the cheque, and asked if it was his. He said it was not, and we both said it was no use denying it, because the writing was nearly the same. He again said he knew nothing about it. The detective asked if he knew a boy Lightbody, and he said he did not. The detective said it was no use denying it, that he must know something of him, and he then said he knew him by sight, and he was then asked if ever he spoke to him. He said he had not, but being asked if he was quite sure of that, he said he once spoken to him in Princes Street Gardens. The detective then said he was to come with him to the police station. I heard nothing more of the matter till I was cited as a witness for the trial, when I attended and gave evidence as I was asked. That is my whole connection with the matter. I had remembered the mark on the boy's face, and Mr Smith also remembered the circumstance. Pursuer was brought to my office by the police, and I was asked if he was the boy and I said he was. Farquharson, whom I have seen to-day, is not the boy who presented the cheque.” [It was stated by Lord Adam, and concurred in by the parties, that no one could mistake Farquharson for the pursuer.] On the averments in Cond. 7, above quoted in extenso, being put to pursuer, he deponed that they were altogether untrue, and that he had told the police what he had told them from motives of duty, that he had thought the pursuer a “pleasant boy,” and had no wish to screen himself from the results of any irregularity. He deponed that he knew the Crossed Cheques Act 1876, which provides—(§ 7) “Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker;” and that he knew the rules issued by the bank to their agents relating to crossed cheques, one of which was that crossed cheques should go to a customer account. He said that if he had obeyed that rule the bank would have been protected, but explained that these rules are made for the protection of the bank, and that the cheque being crossed “generally,” and payable to bearer, he was entitled to cash it, and that many customers of the bank always wished money for crossed cheques, and if a person was known to the banker and was respectable he might get the money. He admitted that Smith had shown him pursuer's handwriting, and that it was not like that which was on the cheque. He deponed also that Smith's signature was very variable, and that many people sign variously. In answer to pursuer's counsel he deponed—“My memory was the sole ground I had for charging him. I had no suspicion of him at the time. I do not think my memory could slip about the matter.” Ferguson, the detective who apprehended the pursuer, deponed that he showed the boy to the defender, who said that he was the boy who cashed the cheque, and that pursuer denied it. The defender said “Nobody saw him but himself. It was for me (witness) to judge how to act. I acted on my own responsibility.” This witness detailed the story told by Farquharson at the Police Office as to his meeting the pursuer by appointment, and the pursuer cashing the cheque and dividing the money outside the bank, which is above recited.

Mr Gow, manager of the office of the Union Bank in Parliament Square, proved that many educated persons are somewhat variable in signing their names, and that many people who usually sign their names in full write the initial only of their Christian name in endorsing cheques—thus “J. Smith” for “James Smith.”

The jury, by a majority of 9 to 6, found a verdict for the pursuer, damages £50.

The defender having obtained a rule for a new trial on the ground that the verdict was against evidence, since there was no evidence for the jury of malice or want of probable cause in the defender's statements:

Scott, for the pursuer, showed cause.—There was evidence for the jury of malice and want of probable cause. In the first place, as there was no issue in justification, it must be assumed that the charge was false and calumnious. Now, reckless and culpable disregard of the rights of others amounted in law to malice. Cameron v. Hamilton, Feb. 1, 1856, 18 D. 423; Callemlar v. Milligan, June 20, 1849, 11 D. 1174; Smith v. Green, March 10, 1853, 15 D. 545; Bayne v. M'Gregor, March 14, 1863, 1 Macph. 615; Denholm, v. Thomson, October 22, 1880, 8 R. 31.

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There was a motive here, not, perhaps, for a cruel and wicked attempt to injure the pursuer for the purpose of hiding the defender's own fault (that was not imputed), but at least sufficient to bias his mind in making the charge, for to pay the cheque in cash was not only against the rules of the bank, but against the statute of 1876—§ 7 of Crossed Cheques Act, above quoted. [The Lord President referred to § 10—“Any banker paying a cheque crossed generally otherwise than to a banker … shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid.”] No doubt § 10 declared the sanction laid down by the Act to be the loss of the value of the cheque, but that did not affect the argument. There was a motive which was recklessly allowed to influence the defender. It was not now maintained by any counter issues that the pursuer really was guilty of the fraud attributed to him by the defender, but the defender had admitted in his evidence that he had nothing to go upon in what must be held to be his mistaken opinion, except the accuracy of his own identification and his own memory. He chose recklessly to persist in this trial on his own opinion, without anything to corroborate it, and the verdict had rightly held him liable for the consequences.

Robertson in support of the rule.—There was a clear absence of proof of malice or want of probable cause. The defender had merely given information, as was his duty to the public, and still more to the bank, of what he honestly believed on the testimony of his own eyes. His so-called persistence in his offence just amounted to this, that he being called upon by the public authorities to give evidence at a criminal trial he did not say (as would have been false) that he had changed his mind. He gave true evidence of what he believed. He showed caution rather than rashness in what he did, for when he gave information to the police he said—“You must decide for yourselves what to do. You have the boy's story and you have mine.” The case of Clark v. Molyneux 4 Dec. 1877, L.R., 3 Q.B.D. 237, was a fortiori of the present. Neither the Act of Parliament nor the rules of the bank had any relevancy to the matter. The defender was quite entitled to pay a customer of the bank the amount contained in a crossed cheque so far as either the Act or the rules went; the latter being a mere general rule for the convenience of the bank.

At advising—