Scottish Court of Session Decisions

Patrick Turnbull, Liquidator of the Money Order Bank, Limited, presented a petition for cessio bonorum in the Sheriff Court of Edinburgh, against James Gibson Scott.. Under an order of the Sheriff-Substitute, pronounced in the process on him to do so, Scott in December 1883 lodged a state of his affairs.

At the diet held for Scott's examination on 24th December 1881 he was examined by Robert Fleming Johnston, W.S., of the firm of Richardson & Johnston, W.S., law-agents for the liquidator.

Scott thereafter raised against Johnston the present action of damages for slander. He averred that the defender on the date above mentioned, in the Sheriff Court Buildings, Edinburgh, in the presence of several persons, and in particular of David Walker, 1 Bellevue Terrace, Edinburgh, and others whose names can be ascertained, “falsely, maliciously, and injuriously used,” with reference to the state of affairs, the following words, or others of like meaning, of and concerning him, pursuer—“Are you aware of the consequences under the statute of lodging a state of affairs such as you have done?”

To this averment the defender answered—“The deposition is referred to; and it is explained that defender asked no questions except such as were pertinent to the cause and in the line of his duty.”

Walker was the shorthand writer who bad been present to take down the examination.

The pursuer's further averments and the defender's answers were as follows—“(Cond.3) The said words used by the defender were so used when no Court was present, and in the absence of any Sheriff, Sheriff-Substitute, Commissioner, or other Judge, or of any official of Court of any kind; and said words so used, falsely, maliciously, and injuriously represented, and were intended to represent, that the pursuer in lodging said state of affairs had been guilty of a crime and offence under the provisions of the Debtors (Scotland) Act 1880, and the Acts therein referred to, or one or other of them. (Ans. 3) The proceedings are referred to. Quoad ultra denied. (Cond. 4) The import of said words was reported in the Scotsman and other newspapers of the 25th December 1883; and from the defender using said words, and from said reports thereof, and otherwise, the pursuer has suffered great annoyance, loss of character and credit, and has been greatly damaged in his business and reputation, and has been hurt in his feelings. (Ans. 4) Denied.”

The pursuer pleaded that the words libelled having been used falsely, maliciously, and injuriously regarding him, he was entitled to damages.

The defender pleaded—“(1) The pursuer's statements being irrelevant, the defender ought to be assoilzied with expenses. (2) The statement complained of having been made in the course of judicial proceedings, the defender was privileged in making the same, and is not liable in damages.”

The Sheriff-Substitute ( Rutherfurd), on the ground that the pursuer offered to prove that the state lodged by him was an honest and full disclosure of his affairs, and that the defender acted maliciously, in the legal sense of the term, by putting the question recklessly and in total disregard of the consequences which the insinuation conveyed might entail on the pursuer, repelled the defender's first plea-in-law and allowed a proof.

The pursuer appealed to the Court of Session for jury trial, and argued his case in person.

He lodged the following issue—“Whether, on or about the 24th day of December 1883, and within the Sheriff Court Buildings, Edinburgh, the defender did, in the presence and hearing of Mr David Walker, Bellevue Terrace, Edinburgh, and others, and one or more of them, say to, of and concerning the pursuer,—‘Are you aware of the consequences under the statute of lodging a state of affairs such as you have done?’—referring to a state of affairs dated 18th December 1883, lodged by the pursuer in the hands of the Clerk of Court in compliance with an order of

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Sheriff-Substitute Hamilton dated 30th November 1883, in a petition for cessio against the pursuer at the instance of Patrick Turnbull, liquidator of the Money Order Bank, Limited; said words, so used, falsely, maliciously, and injuriously represented, and were intended to represent, that the pursuer in lodging said state of affairs had been guilty of a crime and offence under the provisions of the Debtors (Scotland) Act 1880, and the Acts therein referred to, or one or other of them; or did falsely, maliciously, and calumniously use and utter words to that effect, to the loss, injury, and damage of the pursuer? Damages laid at £500 sterling.”

The defender objected to the relevancy of the action, and argued—It was no doubt the case that when the question was put the Sheriff-Substitute had temporarily left the Court-room, but the examination was going on judicially when the question was put. He was willing to amend the record in order to make a statement to that effect. In such circumstances it was not enough merely to use the word “maliciously.” There was here privilege, and pursuer must make averments of facts and circumstances from which it could be inferred that the question was put maliciously— Scott v. Turnbull, June 28, 1884, 11 R. 1131. But even should the action be found relevant, the defender being an undischarged bankrupt should be ordered to find caution for expenses as a condition of going on with the case— Clarke v. Muller, January 16, 1884, 11 R. 418. He (defender) was, if the action were allowed to proceed, also in that case entitled to a counter issue of privilege, though no doubt such a counter issue was not essential— Ramsay v. Nairn, July 25, 1833, 11 S. 1031; Donald v. Clyde Navigation Trustees, June 12, 1875, 2 R. 813.

At advising—