Scottish Court of Session Decisions

James Bertram, gamekeeper and forester to Sir Thomas Dick Lauder at Fountainhall, Haddington, raised the present action, concluding for £500 in name of damages for slander against Robert Pace, farmer at Ormiston Mains in the county of Haddington. The alleged slander was said to have been uttered in the course of a proof which was being led in another action between the same parties in the Sheriff Court-room, County Buildings, Haddington on 30th June 1884. The pursuer alleged that during the temporary absence of the Sheriff from the Court-room the defender had stated to him personally, “and in the presence and hearing of a large audience then assembled in Court, that he the defender had repeatedly sold or disposed of game for and on behalf of pursuer, and paid him the proceeds thereof. On the same day, and within the said County Buildings, the defender also repeated the said accusation to Mr Andrew Wood, solicitor, Haddington, and at same time, and in the lobby of the said County Buildings, while certain of the parties were temporarily absent from Court, the defender stated to the pursuer's agent Mr Andrew Gemmell, solicitor, Haddington, in presence of the said Andrew Wood, that he (Mr Gemmell) did not surely know what kind of man he was acting for,

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and that he (the defender) had repeatedly sold game off Fountainhall for and on behalf of the pursuer, and paid him the proceeds thereof.” The pursuer alleged that the meaning conveyed, and intended and calculated to be conveyed, by the said statements was, that the pursuer had taken game off the estate of Fountainhall, and sold the same and appropriated the proceeds thereof to his own uses and purposes, and had thus been guilty of dishonesty and a breach of the trust reposed in him by his employer.

The pursuer further averred that these accusations were false and slanderous, and that he had been called upon by his employer's factor to vindicate his character, as otherwise he might lose his situation. He also alleged that although the defender had been asked to retract and apologise he had refused to do so.

The defender admitted saying to Bertram (the pursuer) “Do you not mind when I sold the stuff for you,” whereupon the present pursuer said, “That will be another case.” He also admitted saying that he had repeatedly carried “stuff” for Bertram and disposed of it, and handed to him, or others for him, the proceeds. He alleged that these statements were true, and further alleged that—“During the years from 1866 to 1872 inclusive, while he (the present defender) drove the cart and the milk produce from Ormiston Mains by Tranent to Musselburgh, and afterwards, during the years 1873, 1874, and early part of 1875, while the defender's son, Robert Pace drove the said cart and milk produce, he and his said son repeatedly in each year, and during said respective periods, carried ‘stuff’ for the pursuer and disposed of it, and the defender handed the proceeds to the pursuer, or to his wife, or brother John Bertram, or other relatives or representatives of the pursuer. The ‘stuff’ referred to consisted almost wholly of hares and rabbits, was brought to the defender's house, sometimes in the daytime and sometimes at night, by the present pursuer, or by the said John Bertram, or by other relatives or representatives of pursuer, and was handed over to the defender or his wife, or such member of the family or household as was then present. This defender had no knowledge where the pursuer got the ‘stuff’ referred to, or what he did with the said proceeds.” He also stated that the pursuer had called him and his family “a bad poaching lot.”

The defender pleaded that the pursuer's statement was unfounded in fact; also, inter alia—“(3) Privilege. (4) The pursuer having also slandered the defender, there arises compensate injuriarum. (5) Veritas, the statements made by the defender being true.”

The Sheriff-Substitute allowed the parties a proof.

The pursuer appealed to the Court of Session for jury trial.

The following issues, as amended at the bar, were proposed by the pursuer:—“(1) Whether, on or about the 30th day of June 1884, within the County Buildings, Haddington, the defender, in the presence and hearing of Andrew Wood, solicitor, Haddington, did falsely and calumniously say of and concerning the pursuer that he, the defender, had repeatedly sold or disposed of game for and on behalf of the pursuer, and paid him the proceeds thereof, meaning thereby that the pursuer had taken game off the estate of Fountainhall, belonging to Sir Thomas North Dick Lauder, Baronet, the pursuer's employer, and had sold the same, and had appropriated the proceeds thereof to his own uses and purposes, and had thus been guilty of dishonesty and a breach of the trust reposed in him by his employer, to the loss, injury, and damage of the pursuer? Damages laid at £250. (2) Whether, on or about the 30th day of June 1884, within the County Buildings, Haddington, the defender, in the presence and hearing of the pursuer's agent, Andrew Gemmell, solicitor, Haddington, did falsely and calumniously say of and concerning the pursuer that he, the said Andrew Gemmell, did not surely know what kind of man he was acting for, and that he. the defender, had repeatedly sold game off Fountainhall for and on behalf of the pursuer, and paid him the proceeds thereof, meaning thereby that the pursuer had taken game off the estate of Fountainhall, belonging to Sir Thomas North Dick Lauder, Baronet, the pursuer's employer, and had sold the same, and had appropriated the proceeds thereof to his own uses and purposes, and had thus been guilty of dishonesty and a breach of the trust reposed in him by his said employer, to the loss, injury, and damage of the pursuer? Damages laid at £250.”

The following proposed counter issues were lodged by the defender:—“(1) Whether the statements actually made by the defender on the occasions specified in the issues were true? (2) Whether, on various occasions during the time from 1865 to 1873, and during the years 1873, 1874, and 1875, the pursuer, by himself or others, left at the defender's house, for the purpose of being sold or otherwise disposed of, hares, rabbits, and pheasants, or one or other of them; and whether the defender handed or transmitted to the pursuer, or others having his authority to receive the same, the money received by defender for the said hares, rabbits, and pheasants, or one or other of them? (3) Whether, on various occasions and at various places during the time from the beginning of 1875 to the end of 1883, the pursuer falsely and calumniously stated to James Allan, gardener, Ormiston, to James M'Lennan, tenant of Fountainhall, and to More Cockburn, ploughman, Ormiston Mains, or to one or more of them, that the defender's family were ‘a bad poaching lot,’ or did use words of like import and effect, to the defender's loss, injury, and damage?”

Authority cited with regard to third counter issue— Tullis v. Crichton, March 8, 1850, 12 D. 867.

At advising—