Scottish Court of Session Decisions

The defender's objection was that it was incompetent to prove by parole the alleged agreement to abate the rent and to allow time for payment, and reference was made to Gibb v. Murray, May 28, 1829, 7 S. D. 677; Law v. Gibsone, February 3, 1835, 13 S. D. 396; and Kirkpatrick v. Allanshaw Coal Company, December 17, 1880, 8 R. 327.

I express no opinion on this argument at present, but it appears to me that it does not follow from it that the issue must be disallowed. The question may arise at the trial, or perhaps it may not arise. The pursuer does not admit that there is no written evidence of the alteration of the terms of the lease which he alleges. If he recovers such evidence the question will not arise at all. If he fails to recover it, then the defender's plea will arise, and if it be sound—and I indicate no opinion to the contrary—then the result will be that the pursuer will lose this issue. But I incline to think, having regard to the averments on record, that it is safest to allow the case to go to trial without any prejudgment of this point.

The pursuer desired to delete the word ‘dishonest’ in the second proposed issue, and did not desire to innuendo the word ‘dishonourable,’ used in the first letter, as meaning ‘dishonest.’ He held that it was actionable without an innuendo to characterise a man's conduct as dishonourable.

The case of Macrae v. Sutherland, February 9, 1889, 16 R. 476, is a judgment to the effect that it is actionable to represent that a man's character is dishonourable, and it appears to me to follow that it is equally actionable to accuse a man of dishonourable conduct. It is true that considerable doubt is thrown on this point by the opinion of Lord M'Laren in Archer v. Ritchie, March 19, 1890, 18 R 719; but I think I am bound to follow the judgment in the case of Macrae, and I confess that it appears to me that the epithet ‘dishonourable’ is almost, if not altogether, equivalent to ‘dishonest,’ and is in ordinary language equally expressive of moral turpitude.

I send the case to a jury with considerable reluctance, for the lawsuit is of the most trivial character, and creditable, as it seems to me, to neither party.”

The defender reclaimed, and argued—There was here no ground of action, and both issues should be disallowed. (1) On the question of wrongous sequestration—The sequestration was competent. There was here no averment by the pursuer of anything but a parole agreement to found on. Parole evidence was incompetent to overturn the terms of a written lease— Gibb v. Winning, May 28, 1829, 7 S. 677; Law v. Gibsone, February 3, 1835, 13 S. 396; Kirkpatrick v. Allanshaw Coal Company, December 17, 1880, 8 R. 327. The only new actings averred were prior to the alleged verbal agreement, and so of no effect. (2) On the question of slander—It was not libellous in a wrangle to describe conduct as dishonourable— Archer v. Ritchie & Company, March 19, 1891, 18 R 719, and Lord M'Laren's opinion, p. 726. The cases of Macrae v. Sutherland, February 9, 1889, 16 R. 476, and Blasquez v. Lothians Racing Club and Reid, June 29, 1889, 16 R. 893, fell to be distinguished, as there the words complained of had been communicated to third parties. In the case of Drew v. Mackenzie & Company, February 28, 1862, 24 D. 649, there was an imputation of dishonesty, not of dishonourable conduct.

The respondent argued—(1) On the first question—There was here a relevant averment of actings on the new agreement, and inquiry should be allowed— Bargaddie Coal Company v. Wark, March 11, 1859, 3 Macq. H.L. App. 467, and Sutherland v. Montrose Shipbuilding Company, February 3, 1860, 22 D. 665. (2) The word “dishonourable” had here got a definite meaning, and the Lord Ordinary had done what was safe in allowing an inquiry as to what was meant, and if anything had been done to hurt.

At advising—

Lord President—The first ground on which the action is laid is the averment that the defender carried out the sequestration wrongfully, and the alleged wrong is that the sequestration was in direct breach of an agreement with the pursuer, by which in place of the rent of £45 the defender had agreed to accept a rent of £40. The whole case is contained in articles 2 and. 4 of the condescendence, and the sole reason the pursuer avers for bringing his action is that the sequestration was brought against him for £22, 10s. instead of £20. Now, it is plain, on a statement of the case, that this is an averment of a mere parole agreement, and the position of the pursuer is, that without asking for a diligence, or offering any evidence in writing, he is seeking to set up a verbal agreement in contradiction of the terms of a written lease. The Court is, however, bound to deal with the case as it stands, and must decide it in accordance with the rule “ De non apparentibus et non existentibus eadem est ratio.” The case of Law v. Gibsone, quoted by Mr Sym, is directly in point, while the other cases cited do not deal with a question of wrongous sequestration as that one does. I therefore think that there is no ground of action on the question of sequestration, and that the first issue should be disallowed.

The second issue is laid on two letters regarding transactions which had arisen out of the lease of the farm. In these the defender is simply complaining of the pursuer not having fulfilled his obligation by sending a cheque in accordance with the arbiter's award. The use of the word “dishonourable” in one of these letters is the sole ground of action, and it is here important to observe that the defender, the writer of the letter, prefixed to the word “dishonourable” the words “which you must see,” so that it is really a remonstrance which he is addressing to the pursuer, and an appeal to his sense of honour. Can it therefore be said that in a matter of controversy the use of such a word addressed as a remonstrance

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