Scottish Court of Session Decisions

This action was raised by Charles Croucher, general dealer, residing at Kirkton of Auchter-house, against the Rev. William Mason Inglis, minister of the parish of Auchterhouse, for payment of £500 as reparation and solatium for alleged slanders.

The statements complained of were contained in two letters written by the defender to the Inspector of Poor of Dundee and to the Board of Supervision respectively, and which called in question the pursuer's fitness to have the charge of several pauper children boarded with him by the Parochial Board of Dundee.

The letters were in the following terms:—

“ Manse, Auchterhouse,

“16 th October 1888.

“Dear Sir,—You are aware of the fact that several children on your parochial board list are boarded out in this village under the guardianship of a man named Croucher, a hawker to trade. I have just seen this man engaged in fighting for a considerable time with another

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man belonging to this parish, and such conduct for its brutal and disgusting character I have never witnessed. I leave you to judge as to whether such a man is a proper guardian for these poor children. From enquiries I have made at the local policeman and other respectable people, I am satisfied that the sooner those children are removed to another house the better it will be for them, and the more creditable to the parochial authorities of Dundee.—I am, &c.

To T. Brown, Esq. “W. Mason Inglis.”

Manse of Auchterhouse, near Dundee,

20 th November 1888.

To Members of Board of Supervision.

Gentlemen,—I beg to call your attention to a matter which I do not hesitate to say demands the immediate consideration of the Board of Supervision.

Fully a year ago five orphan children were placed by the parochial authorities of Dundee under the guardianship of a man named Croucher and his wife, who reside in the Kirkton of Auchterhouse. This man is a hawker by trade, and occupies what is practically a two-roomed cottar house. He has five of a family, and at the present time there are ten children in this house under the care of his wife. This man came to reside in the village about two years ago, and was engaged in the hawking business. He was, not long afterwards, convicted in the Burgh Court of Dundee for gross cruelty to a horse, and fined for the offence. Not long after this conviction he succeeded in obtaining from the Parochial Board of Dundee five children as boarders. In the course of my visitation of the parish I was led to understand that there was something wrong. My attention was, however, more directly called to the condition of those children by Mr Gibson, police-constable, located in the village, who informed me that Croucher's house was practically a baby-farming establishment, where the children were simply boarded as a matter of business and traffic, and to his knowledge they were very badly treated. He informed me of their dirty, poverty-stricken, half-starved condition, and of their being driven out of the house, and compelled to spend most of the day in an old shed in all kinds of weather. He also expressed to me his astonishment that the children should ever have been placed under such guardians, and compelled to endure such treatment. I investigated the matter for myself, and found that the constable's statement was entirely borne out by what I personally witnessed.

My attention was again called to their condition by a Mr Cummings, who occupied the adjoining house. He told me that the conduct of Croucher and his wife was disgraceful, and the language of the woman most filthy and disgusting. He also brought under my notice the cruel treatment to which he and his wife had seen the children subjected. My attention was further called to the house by Mr Walker, game-keeper, and Mrs Walker, most reliable and respectable people, who lived in the adjoining house. They also referred to the disorderly character of the Crouchers, and particularly of the filthy, disgusting language of the woman, and of her cruel treatment of the children. One child, she informed me, went about for days often shrieking with pain from a dislocated arm which had never been attended to. The children were subjected to most cruel treatment by being sworn at and mercilessly beaten. They were also compelled to search midden and manure heaps for rags and bones for Croucher to dispose of. She also informed me that the parishioners wondered very much that I did not take measures to have those children removed. She characterised the house as a disgraceful one, and is quite prepared to testify to that effect before any board. I have also been informed by police-constable Shepherd that he has on several occasions seen Croucher the worse of drink, and that his wife is notorious for her filthy language and quarrelsome brawling disposition. He has had repeatedly complaints lodged with him against her. He also states that the children ought never to have been placed under such guardians, and that his opinion is the one which prevails all over the parish and neighbourhood. Complaints of a similar character have reached me from other parishioners. Personally I have repeatedly seen Croucher drunk, and quite recently I came upon him engaged in a hand-to-hand fight with a man belonging to the parish, and told him he was a disgrace to the district. I have reported the condition of the house, the character of the occupants, and the general treatment to which the children have been subjected to the parochial authorities of Dundee, but nothing has been done to remove the scandal. Mr Brown, the Inspector of Poor, whose letter I enclose, informed me that he had already received complaints, and his own opinion was that the children should be instantly removed. It appears, however, that his opinion has been overruled by certain influences brought to bear by friends of Croucher upon certain members of the Board Committee, so that the children still remain under their care.

In such circumstances I have been compelled to direct your attention to this scandalous case, and trust that you will order a thorough investigation as early as convenient.—I am, &c.,

“W. Mason Inglis,

Minister of Auchterhouse.”

On 23rd May 1889 the Lord Ordinary ( Kyllachy) approved of the following issues for the trial of the cause—“(1) Whether the defender on 16th October 1888 wrote and sent to Mr Thomas Brown, inspector of poor, Dundee, a letter in the terms contained in the schedule No. 1 hereto annexed; and whether the said letter is of and concerning the pursuer, and falsely and calumniously and maliciously represents him to be a man of such brutal character as to be unfit to have charge of children boarded out by the parochial authorities of Dundee under his guardianship, and that it was the duty of the Parochial Board forthwith to remove them, to the loss, injury, and damage of the pursuer? (2) Whether the defender on 20th November 1888 wrote and sent to the Board of Supervision a letter in the terms contained in the schedule No. 2 hereto annexed; and whether the said letter is of and concerning the pursuer, and falsely and calumniously and maliciously represents him as keeping a baby farming establishment, and as being a man unfit for the guardianship of parochial children, as systematically ill-treating and starving them, and as being a drunkard and a worthless character, and as being

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a disgrace to the district, to the loss, injury, and damage of the pursuer? Damages laid at £500.”

The defender reclaimed, and argued — The defender was not bound to take an issue in justification, but was entitled to have the words “without probable cause” inserted in the issues. Statements made in discharge of a duty, if made with “probable cause,” were not a good ground for damages. The duty of ministers in this respect had been recognised in the case of Forbes, and by the pursuer's own statement complaints had here been made to the minister— Forbes v. Gibson, December 18, 1850, 13 D. 341; Lightbody v. Gordon, June 15, 1882, 9 R 934; Kinnes v. Adam & Sons, March 8, 1882, 9 R. 698; Craig v. Peebles, February 16, 1876, 3 R. 441; Shaw v. Morgan, July 11, 1888, 15 R. 865; Beaton v. Ivory, July 19, 1887, 14 R 1057; Gibb v. Barron, July 1, 1859, 21 D. 1099.

Argued for the pursuer and respondent—There was no case of ordinary slander where both “maliciously” and “without probable cause” had been put in issue. In all cases where the latter words had been thought necessary in addition to the former the defender had had a title to set in motion some judicial proceedings. The rule was that if a man was in a privileged position, “maliciously” must be put in issue; if he was exercising a legal right, “without probable cause” must be added— Davies v. Brown & Lyell, June 8, 1867, 5 Macph. 842; Craig v. Peebles, supra; Wolthekker v. The Northern Agricultural Company, December 20, 1862, 1 Macph. 197; Rae v. Linton, &c., March 20, 1875, 2 R. 669.

At advising—