Scottish Court of Session Decisions

This was an action of damages for written slander by the Rev. John James Browne, County Antrim, Ireland, and his three sons, Arthur Browne, George C. Browne, and John James Browne, against John M'Farlane, Edinburgh, the proprietor, printer, and publisher of the Scottish Leader newspaper.

The libel complained of was contained in the issue of the Scottish Leader of 16th November 1887 under an article headed—“Affairs in Ulster,” purporting to be written by the Belfast correspondent of the paper, and was to the following effect—“A very interesting and amusing episode has just come to light, which illustrates the growing tendency of the North toward Home Rule, and the desperate shift to which foolish people of ‘Unionist’ leanings are sometimes driven to alarm the Protestant population when they begin to manifest any signs of fraternising with the people of Ireland in prosecuting their just claim to self-government. Toome is a small place where the river Bann receives the waters of Lough Neagh before entering Lough Beg. It is a railway station, and the place is famous for its fishery. It is still more famous perhaps because here is a building called the ‘Temple of Liberty,’ erected by a Mr Carey, a wealthy man, who found that very often in bigoted neighbourhoods well-meaning people could not get a hall to have a meeting in. Here, accordingly, the Protestant Home Rulers have held several successful meetings, and it is plain the seed there sown is bearing fruit. At one of these meetings a Protestant rector attended, named Brown, and gave some little trouble, but declared himself a species of Home Ruler. Now, there is much fun over Rector Brown, whose sons have been brought up before the Magistrates at Toome Petty Sessions charged with throwing stones at a police patrol. When charged, the boys, who are young in knavish tricks, very artlessly let the cat out of the bag. They had been posted there by their father to throw stones at him by way of getting up an outrage for the papers, and for the Loyal and Patriotic Union, and had in the darkness mistaken the police for their reverend parent, who had that evening invited a Roman Catholic gentleman of the village to accompany him to the site of the forthcoming outrage by way of protection. The affair was of course hushed up, and the boys let off with a caution by the Magistrates. As it has not yet been, and could not be, reported in our local ‘Unionist’ papers, I thought it better to let it see the light in the Leader. I am sure your readers will appreciate it as they did the Dolamon incident.”

The pursuers averred that the statements in this paragraph falsely and calumniously represented that the Rev. Mr Browne was guilty of planning an outrage on himself in a manner which would make it falsely appear that his political opponents had been guilty of a crime, that he had made his sons parties to the fraud, and that they became privy to their father's design.

The defender admitted the article complained of, but denied the pursuer's averments subject to the following explanation—“The pursuer, the Reverend John James Browne, has made several complaints to the police, all of which have turned out to be unfounded, and upon none of which the authorities have taken action. On the evening of the 3rd of August 1887 he left Toome for his own house accompanied by a gardener of the name of M'Astocker. Some delay occurred on their journey, but at the hour when they should have reached home, in ordinary course, the following occurred—Not far from pursuer's residence two police constables were attacked with stones. The police pursued their assailants, whom they secured and discovered to be the pursuers Arthur Molyneux Browne and George Capel Browne. On being challenged for their conduct they stated that they had mistaken the police for their father. The circumstances were reported by the police to their superiors.”

On 9th August 1888 the defender published in the Scottish Leader a contradiction of the said paragraph, and apologised for the statements having been allowed to appear in his paper. The defender further upon record withdrew the said article, and repeated the apology and expression of regret already made, and that as regarded all the pursuers.

The following issues were adjusted for the trial of the cause:—

I.—Issue for the Rev. John James Browne.

“It being admitted that the defender is the printer, proprietor, and publisher of the Scottish Leader newspaper, published in Edinburgh: It being also admitted that in the number of the said newspaper which was published on 16th November 1887 there was printed the paragraph set forth in the schedule annexed hereto — Whether the said paragraph, or part thereof, is of and concerning the pursuer the Reverend John James Browne, and falsely and calumniously represents him as having been guilty of attempting to impose upon and deceive the public, to the loss, injury, and damage of the said pursuer? Damages laid at £500.”

II. — Issues for Arthur Molyneux Browne and Mandatory.

“It being admitted that the defender is the

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printer, proprietor, and publisher of the Scottish Leader newspaper, published in Edinburgh: It being also admitted that in the number of the said newspaper which was published on 16th November 1887 there was printed the paragraph set forth in the schedule annexed hereto—1. Whether the said paragraph, or part of it, is of and concerning the pursuer the said Arthur Molyneux Browne, and falsely and calumniously represents him as having been guilty of attempting to impose upon and deceive the public, to the loss, injury, and damage of the said pursuer? 2. Whether the said paragraph, or part of it, is of and concerning the said pursuer, and falsely and calumniously represents him as having been charged with a criminal offence, and as having admitted or been found guilty of said offence? Damages laid at £100.”

Issues in similar terms to those last above quoted were lodged for the Rev. Mr Browne as tutor and administrator-in-law for the other pursuers George C. Browne and John James Browne.

No issue in justification was taken for the defender.

The defender obtained a commission and diligence for the examination of Samuel Kelly and James Mullan, both constables in the Royal Irish Constabulary, Toomebridge, County Antrim, Ireland, as witnesses for the defender, and in accordance with the appointment of the Court the witnesses were examined upon adjusted interrogatories, and the report of the commission was transmitted to the Clerk of Court to lie in retentis.

The trial took place on 24th December 1888 before the Lord President and a jury. Evidence was led by both parties, and in the course of the evidence for the defender his counsel proposed to read evidence, taken on commission as aforesaid, to prove the statement in answer 3 for defender, viz.—“Not far from pursuers' residence two police constables were attacked with stones. The police pursued their assailants, whom they secured and discovered to be the pursuers Arthur Molyneux Browne and George Capel Browne. On being charged for their conduct, they stated that they had mistaken the police for their father.” The Lord President rejected the said evidence, and the counsel for the defender excepted to the said ruling.

The jury found for the pursuer the Reverend John James Browne, and assessed the damages at £100, and further found for the other pursuers Arthur Browne, George Browne, and John James Browne jun., and assessed the damages at one farthing for each of the said pursuers. The counsel for the defenders then proposed the foresaid exception, and requested the Lord President to sign a bill of exceptions, which was done on the 11th day of January 1889.

The defender argued in support of the bill—What was alleged in the articles was a conspiracy between the father and his sons for political purposes, and that was the point of the issue for the principal pursuer. The object of desiring the admission of the Irish evidence was in mitigation of damages. Its exclusion proceeded upon too rigorous a construction of the rules of evidence in such cases. This was not a case in which the defender, in order to have the evidence in question admitted, was bound to take an issue of veritas, all that he desired was to show

that his information was true. He had proved how the information came to him, and he was entitled to show that it was reliable, and what was narrated actually took place— Ogilvie v. Scott, March 19, 1836, 14 S. 729; Bryson v. Inglis, January 15, 1844, 6 D. 363; M'Neill v. Rorison, November 12, 1847, 10 D. 15; Craig v. Jex Blake, July 7, 1871, 9 Macph. 973; Paul v. Jackson, January 23, 1884, 11 R. 460.

The pursuer argued—The evidence sought to be admitted was completely rejected; it was not part of the res gestce. While the general circumstances in which an alleged libel was uttered ought to be laid before a jury; the evidence here which was rejected was not of a character to have affected the jury even if it had been admitted and no issue of veritas had been taken. Reference was made to the authorities above quoted, and to Brodie v. Blair, July 17, 1834, 12 S. 944; Burnaby v. Robertson, March 3, 1848, 10 D. 855.