Scottish Court of Session Decisions

John Mackay, writer, Edinburgh, raised this action of damages against James M'Cankie, accountant, Edinburgh, concluding for £200 as damages and solatium said to have been caused by slanderous statements made by the defender verbally and in writing. It appeared from the averments of the pursuer and the defender's admissions that the pursuer had upon different occasions borrowed money from the defender, and that upon the 12th July 1882 he obtained a loan of £12. The pursuer averred that he gave as security a promissory-note subscribed by himself and by a firm of Low & Company and Mr Francis Low, sole partner thereof, the loan being repayable in three instalments of one, two, and three months from date, and £2 being deducted as discount or interest; that on 14th August following, the first instalment having become due, and application having been made by the defender for payment, he intimated that payment would be made in the course of a day or two; that on the 18th August the defender wrote to him this letter, which contained the written slander complained of:—“The promissory-note handed by you to me, signed by yourself, Low & Co., and Francis Low, was presented to-day to Mr Low for payment of the instalment now past due. He repudiates all knowledge of the said note, and I have therefore to inform you that unless the full amount of the promissory-note is now paid to me before 11 o'clock to-morrow (Saturday), I shall consider it necessary to hand the case in to the Procurator-Fiscal.—Your obedient servant, jas. m'cankie.”

The innuendo placed by the pursuer upon this letter was as follows:—“(Cond. 3) The statements in the said letter are of and concerning the pursuer, and falsely and calumniously, maliciously, and

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without probable cause, accuse the pursuer of having forged, or at least mean or imply that the pursuer had forged, the subscription of the said firm of Low & Company, and Francis Low, adhibited to the promissory-note therein referred to, being the promissory-note given for the loan of £12 made by the defender to the pursuer in July last; or otherwise the said statements falsely and calumniously, and maliciously and without probable cause, accuse the pursuer of having, or mean and imply that he had, committed the crime of uttering a forged document knowing it to be forged, or some other criminal offence in connection with the promissory-note last mentioned, which could be brought under the cognisance of the Procurator-Fiscal.”

The pursuer went on to aver that Low had not repudiated the signature said to be his, and that on the contrary he had written to the defender stating that he had never done so.

He further averred that on the day following the date of this letter the defender called on him at his office, and in violent and threatening language demanded payment of the entire loan, though only one instalment was then exigible, “and then and there accused the pursuer of having forged the subscription of Low & Co., and of Francis Low, which were appended to the promissory-note. Upon this occasion the defender called the pursuer a forger, and stated that he would at once charge him with the crime of forgery to the Procurator-Fiscal.”

The pursuer pleaded, inter alia—“(2) The defender having accused the pursuer of a crime falsely and calumniously, maliciously and without probable cause, is liable in damages as concluded for.”

The defender admitted the writing of the letter, and explained that it referred to what passed at a meeting between one of his clerks and Low, and averred that Low had at that meeting repudiated the promissory-note. He denied having slandered the pursuer at the meeting in the pursuer's office, and stated that he had called there with the object of getting payment of the instalment then due.

He pleaded, inter alia, that the pursuer's averments were not relevant or sufficient to support the conclusions of the summons.

The Lord Ordinary ( Lee) approved of the following issues for the trial of the cause:—“(1) Whether the defender wrote and sent to the pursuer a letter in the terms contained in the schedule hereto annexed, and whether said letter is of and concerning the pursuer, and falsely and calumniously represents that he has been guilty of forgery or uttering, to the loss, injury, and damage of the pursuer? (2) Whether, on or about 19th August 1882, the defender, in or near Thistle Court, Edinburgh, falsely and calumniously stated to the pursuer that he the pursuer was a forger, and that he would charge him with the crime of forgery to the Procurator-Fiscal; or did use words of similar import or effect, to the pursuer's loss, injury, and damage?—Damages laid at £200.”

The letter referred to in the first issue was that quoted supra.

“ Note.—With regard to the first issue, it appears to me that the letter referred to is capable in its natural meaning of supporting the innuendo put upon it by the pursuer. It is not a mere intimation of the fact that Mr Low repudiated the signature purporting to be his, and that the defender considered it necessary to place the matter in the hands of the Procurator-Fiscal. But it is a demand for payment of the full amount (although only one instalment was due), coupled with an intimation that unless this demand is complied with ‘I shall consider it necessary to hand the case in to the Procurator-Fiscal.’ It represents the pursuer as having an interest to avoid this; and it does not represent the writer as thinking it necessary to take that step in the interests of public justice. Had that been his view, he would have given information whether the promissory-note should be paid next day or not. I think that the principle stated in the case of Brydone v. Brechin ( 8 R. 697) does not exclude the innuendo put upon the letter in this case, and that the pursuer is entitled to an opportunity of establishing if he can that that innuendo was conveyed. The case of the Capital and Counties Bank (Limited), 1st August 1882, 7 App. Ca. 741, seems to me to be in no way inconsistent with this view.”

The defender reclaimed, and argued—As to the first issue:—The letter was not written to a third party, but to the pursuer himself. In these circumstances it could not found an action of damages. Besides, the letter would not support the innuendo which the pursuer put upon it. The occasion was privileged; the words “maliciously and without probable cause” should be inserted.— Kennedy v. Baillie, Dec. 4, 1855, 18 D. 138; Broomfield v. Greig, July 7, 1868, 6 Macph. 992. As to second issue:—The alleged verbal slander was not said to have been uttered in the presence of anyone; if not, it was not slander, and therefore no issue should be allowed.

Argued for respondent on the first issue—Nothing had been admitted by the pursuer letting in privilege; the question therefore came to be, Was the innuendo admissible? The statement in this letter was an accusation of forgery and nothing less; and it contained a threat that proceedings of a criminal kind would be taken if a sum was not paid by a certain time. On the second issue:—The slander was relevant matter for an issue though uttered to no one but the person interested. Injury to one's feelings was quite actionable although no one was present but the person interested. Slander in a writing sent only to the person slandered was actionable, because that person's feelings were injured, and there was no difference in principle between written and spoken slander.—Borthwick on Slander; Hutchison, M. “Delict;” M'Bride v. Williams and Dalzell, Jan. 28, 1869, 7 Macph. 427.

At advising—