Scottish Court of Session Decisions

In January 1893 A. C. M. Ingram, analytical chemist, Paisley, brought an action of reparation for slander against Robert Russell, agent for the Clydesdale Bank there, concluding for £1000.

The pursuer averred—In the month of December 1892 the pursuer had several meetings with the defender with reference to an overdraft which the pursuer was desirous of obtaining from the defender's bank for business purposes. After sundry communings the defender, at a meeting in the office of the said bank at Paisley, on or about 12th December 1892, suggested to the pursuer that he might get the pursuer's father-in-law, Mr Donald Sutherland, superintendent of the burgh police, Paisley, to accept a bill along with him, and the defender indicated that he would be prepared to discount such bill when presented. Following out this suggestion, the pursuer drew two bills, dated 16th December 1892, upon the said Donald Sutherland—one for £40 at three months' date, and the other for £50 at six months' date—and sent them to Mr Sutherland for acceptance. Mr Sutherland subscribed his name to the bills as acceptor, and returned them to the pursuer, who, about three o'clock in the afternoon of said 16th December, called at the bank and handed the bills across the counter to the accountant Mr Mackersie, to be discounted, explaining that he had arranged the matter with the defender.

About eleven o'clock in the forenoon of Saturday, 17th December 1892, the pursuer called at the bank to lodge some money to the credit of his account, and to see as to the discounting of the bills. He went into the defender's room for the purpose of giving any explanations the defender might wish regarding the bills. The defender, however, did not refer to the bills, but conversed in a general way, leading the pursuer to infer that he was satisfied. The parties went together into the public office of the bank, where the pursuer proceeded to write a “pay-in slip.” Thereupon one of the bank clerks handed the said bills to the defender, and the defender, after scrutinising them, and passing a remark to the pursuer that he had got them accepted, to which the pursuer assented, intimated to the bank accountant Mr Mackersie that these were all right, meaning that the bills were to be accepted as good, and to be discounted, which was done, and the proceeds placed to the credit of the pursuer on current account, as appears from the entries in the books of the bank.

On the morning of Monday, 19th December 1892, the defender came into the

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public office of the bank and asked for the said bills. Having got them and examined them, he there, in presence and hearing of the following clerks of the bank, viz., James Mackersie, accountant, residing at the Cross, Paisley; James Carrick, clerk, residing at 8 Whitehaugh Terrace, there; William Brown, clerk, residing at 8 Camphill Place, there; and James Mackay, clerk, residing at 3 Smith Street, Paisley, or one or more of them, and also in presence and hearing of members of the general public, who were in the bank at the time, falsely, calumniously, maliciously, and without probable cause, stated, referring to the said bills, “I am doubtful of their genuineness,” and “I do not believe that Sutherland signed these bills,” or did use words of the like import and effect. The words so used were of and concerning the pursuer, and were meant to imply that the pursuer had forged, or procured to be forged, the signatures of Donald Sutherland appearing on said bills, and had uttered these as the genuine signatures of the said Donald Sutherland. The defender then left the bank and went outside, taking with him the bills. He proceeded to the office of Mr Thomas Walker, clerk to the Police Commissioners of Paisley, where he submitted the bills to Mr Donald Paterson, writer, and asked him whether the signatures were those of Donald Sutherland. Mr Paterson informed the defender that although Mr Donald Sutherland usually subscribed “D. Sutherland,” the subscriptions in question were, in his opinion, genuine subscriptions of Mr Sutherland. Notwithstanding this opinion, which should have satisfied the defender that his suspicions were groundless, the defender returned to the public office of the bank, and there in presence and hearing of the said James Mackersie, William Brown, James Carrick, and James Mackay, or of one or more of them, and also of members of the general public, who were in the bank at the time, again referring to said bills, falsely, calumniously, maliciously, and without probable cause, said, “I have got my opinion confirmed that these bills are not genuine,” or did use words to the like import and effect of and concerning the pursuer, implying that the signatures “Donald Sutherland” appearing on said bills were not the true signatures of the said Donald Sutherland, but had been forged, or procured to be forged, by the pursuer, who had thereafter uttered the bills as containing the said Donald Sutherland's genuine signatures. The defender thereupon instructed the bank clerks to delete or erase from the bank books the entry or entries crediting the pursuer with the amount of said discounted bills, and this was done. The defender thereupon wrote a peremptory letter to the pursuer, requesting him to call at the bank at once, and instructed the clerk whom he sent out to deliver it to call at the pursuer's house, and at his works, and make sure of finding him. On the clerk returning and reporting to the defender that he could not find the pursuer, the defender, in the public office of the bank, and in presence and hearing of the said James Brown, James Carrick, Mackersie, William and James Mackay, or of one or more of them, and also of members of the general public who were in the bank at the time, falsely, calumniously, maliciously, and without probable cause, stated of and concerning the pursuer, “He may have skedaddled,” or did use words of the like import and effect, implying that the pursuer having forged, or procured to be forged, the signatures “Donald Sutherland” on said bills, and uttered the same as containing the genuine signatures of the said Donald Sutherland, had probably fled in order to escape a criminal prosecution.

Somewhat later on the afternoon of said 19th December 1892, the pursuer, who had not received the letter despatched by the defender as aforesaid, but had occasion to call at the bank in regard to another matter, came into the public office of the bank. He was asked to go into the defender's private room, which enters from the public office. He did so, and the defender followed him in, but did not close the door. The defender there and then falsely, calumniously, maliciously, and without probable cause, said to the pursuer in a loud tone of voice, and pointing to the bills, which he exhibited, “You're a fine fellow. What does this mean? That's not Sutherland's signature at all;” and on the pursuer replying that it was, the defender falsely, calumniously, maliciously, and without probable case, said, “It's nothing of the kind. I heve examined the signature, and it is not Sutherland's signature. I have seen the like of this done before,” or did use words to the like import and effect, implying that the pursuer had forged, or procured to be forged, the signatures on said bills, which purported to be the signatures of the said Donald Sutherland, and had uttered the same as the genuine signatures of the said Donald Sutherland. On the pursuer still maintaing that the said signatures were genuine, the defender instructed one of the bank clerks to go with the bills to the said Donald Sutherland, and ask him whether he had accepted and signed his name to said bills. The clerk went away with the bills and soon returned, stating that Mr Sutherland was engaged. The defender insisted that the clerk must get Mr Sutherland, and sent him away a second time for that purpose. The clerk then went back to Mr Sutherland's office, and in order to carry out the defender's peremptory instructions, had to interrupt Mr Sutherland in a business meeting. On being shown the bills, Mr Sutherland at once said that he had signed them. In a few minutes the bank clerk returned, and reported that the said Donald Sutherland stated that the signatures in question were his. Immediately on the clerk so saying, the defender called into his private office a gentleman who had been waiting for him, and the pursuer had to leave.

The statements of the defender to the effect that the bills did not contain

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the genuine signatures of the said Donald Sutherland, implying that the pursuer had forged, or procured to be forged, said signatures, and had uttered the same as the genuine signatures of the said Donald Sutherland, are entirely unfounded. The said signatures were the true and genuine signatures of the said Donald Sutherland, and the defender, if he had any reason to suspect they were not, could have satisfied himself on that point in five minutes' time, as the said Donald Sutherland's office is only 100 yards from the office of the bank. Instead of so doing, the defender falsely, calumniously, maliciously, and recklessly, and without probable cause, in fact without any cause at all, uttered the slanderous statements concerning the pursuer condescended on.

The defender explained “that Saturday is a busy and short day in the bank, and he had not much time to reflect upon the transaction with pursuer. When, however, he had considered the circumstances certain suspicion arose in his mind, and on the Monday morning, after examining the bills with Mr Mackersie, the bank accountant, he expressed to Mr Mackersie his doubt as to the genuineness of Mr Sutherland's signatures. Defender thereafter went to the office of the clerk to the Police Commissioners and compared the signatures on the bills, which were signed ‘Donald Sutherland,’ with a specimen of Mr Sutherland's usual signature, which was ‘D. Sutherland.’ Defender's doubt was confirmed by this circumstance, and he stated this to Mr Mackersie. It is denied that the defender made any statements regarding the pursuer or the said bills in the presence or hearing of any members of the general public… . Explained and averred that on the Monday defender said to pursuer that the signatures to the bills as Captain Sutherland's were not his usual signatures, his usual signature being ‘D. Sutherland.’ Pursuer admitted this, but added that the signatures were all right. Defender asked him if he might send a clerk to inquire of Mr Sutherland. To this pursuer assented and a clerk was sent. Both parties remained together chatting in friendly terms. The clerk returned, reporting that Mr Sutherland was engaged, and he was told to go back again. On his return he reported that he had seen Mr Sutherland, and that he accepted responsibility for the acceptances. Defender then said to pursuer ‘That's all right, then.’ Pursuer assented, and defender felt relieved and considered the matter at an end. No one heard the conversation between pursuer and defender.”

The defender, inter alia, pleaded (2) Privilege.

The pursuer proposed the following issues—“(1) Whether, on or about the 19th day of December 1892, and at or near the office in Paisley of the Clydesdale Bank, Limited, the defender, in presence and hearing of the following clerks of the bank, viz.: James Mackersie, accountant, residing at the Cross, Paisley; James Carrick, clerk, residing at 8 Whitehaugh Terrace, there;William Brown, clerk, residing in Paisley; and James Mackay, clerk, residing at 3 Smith Street, there, or one or more of them, falsely and calumniously stated of and concerning the pursuer, and with reference to two bills, dated on or about 16th December 1892, drawn by the pursuer upon and accepted by Donald Sutherland, superintendent of the burgh police, Paisley, that he (the defender) did not believe that the said Donald Sutherland had signed the said bills, meaning thereby that the pursuer had forged, or procured to be forged, the signatures of the said Donald Sutherland appearing on said bills, and had uttered these as genuine, or did use words of the like import and effect of and concerning the pursuer, to his loss, injury, and damage. (2) Whether, on or about the said 19th day of December 1892, and at or near the said office in Paisley of the said Clydesdale Bank, Limited, the defender, in presence and hearing of the said James Mackersie, James Carrick, William Brown, and James Mackay, or one or more of them, falsely and calumniously stated of and concerning the pursuer that he (the defender) had got his opinion confirmed that the said bills were not genuine, meaning thereby that the pursuer had forged, or procured to be forged, the signatures of the said Donald Sutherland appearing on said bills, and had uttered them as genuine, or did use words of the like import and effect of and concerning the pursuer, to his loss, injury, and damage. (3) Whether, on or about the said 19th day of December 1892, and at or near the said office in Paisley of the said Clydesdale Bank, Limited, the defender, in presence and hearing of the said James Mackersie, James Carrick, William Brown, and James Mackay, or one or more of them, falsely and calumniously stated of and concerning the pursuer that he might have ‘skedaddled,’ meaning thereby that the pursuer having forged, or procured to be forged, the signatures of the said Donald Sutherland appearing on said bills and having uttered them as genuine, had probably fled in order to escape a criminal prosecution, or did use words of the like import and effect of and concerning the pursuer, to his loss, injury, and damage. (4) Whether, on or about the said 19th day of December 1892, and at or near the said office in Paisley of the said Clydesdale Bank, Limited, the defender, in presence and hearing of the pursuer, falsely and calumniously said of and concerning the pursuer, that the pursuer was ‘a fine fellow,’ that the signature on said bills was not the signature of the said Donald Sutherland at all, that he (the defender) had examined the signature and that it was not Sutherland's signature, and that he had seen the like of this done before, meaning thereby that the pursuer had forged, or procured to be forged, the signatures of the said Donald Sutherland appearing on said bills, and had uttered them as genuine, or did use words of the like import and effect of and concerning the pursuer, to his loss, injury, and damage. Damages laid at £1000.”

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Upon 17th May 1893 the Lord Ordinary ( Stormonth Darling) refused the first three issues and allowed the fourth issue.

“ Opinion.—Of the four issues proposed by the pursuer, the first, second, and third seem to me to stand in a different position from the fourth. All three refer to statements made by the defender to clerks in the branch bank of which he was the agent, and on the pursuer's own statement they are covered by privilege. If the defender, though erroneously (as I must assume), had doubts about the genuineness of the signatures to the bills in question, he was within his right, and indeed it was his duty, to mention the matter to the other officials of the bank, and it would most seriously hamper the freedom of confidential communings of this kind to weigh in nice scales the language used, and to hold that he lost his privilege by expressing his own adverse opinion in somewhat decided terms. I am therefore very clearly of opinion that these three issues ought not to be granted without the insertion of the words ‘maliciously and without probable cause.’

But then arises the question, whether malice is relevantly and sufficiently averred on record. Now, I am aware that in some cases it has been thought sufficient to aver malice in general terms, while in others it has been held necessary to condescend upon particular facts and circumstances from which the inference of malice is to be made, and no very definite line of distinction has ever been drawn between the one class and the other. (See the late Lord President's opinion in Innes v. Adamson, 17 R. p. 15). I do not myself think that official duty, interpreting that phrase as the duty of a public official, affords any sound or satisfactory criterion. A man in the position of a bank agent, though he is not a public servant, discharges very important and responsible duties towards his employers, and I think it is just as much required, both by justice and by the true interests of the community at large, that the protection of privilege in its fullest degree should be extended to him as to the holder of a munus publicum. At all events I am not compelled by any decision to hold, contrary to my own opinion, that a general averment of malice is enough in such a case. Now, on this record, so far as these three issues are concerned there is nothing more than a general averment of malice. It is said that the defender might have satisfied himself of the genuineness of the signatures by applying to the acceptor Mr Sutherland, whose office was in the immediate neighbourhood of the bank, but it cannot seriously be maintained that he was bound to do that before speaking to his own clerks, and it is admitted that he had some ground for suspecting the signatures, inasmuch as Mr Sutherland's usual signature was ‘D. Sutherland,’ and not ‘Donald Sutherland’ as on the bills. I am therefore of opinion that, so far as these issues are concerned, there is no sufficient averment of malice, and that the issues must for that reason be disallowed.

With regard to the fourth issue the case is different. It relates to a statement made to the pursuer himself roundly declaring that the signatures were not genuine, and the words are innuendoed as importing a charge of forgery. Now, this on the face of it was not a privileged occasion. It may turn out that it was, and much will no doubt depend on the precise words used. If all that the defender did was to call the pursuer's attention to the admitted difference between Mr Sutherland's usual signature and the signature on the bills, and to ask for an explanation, then the defender was acting within his rights, and I apprehend it would be the duty of the presiding judge to direct the jury that in that case malice must be proved. But the defender would not be entitled to charge the pursuer with forgery as if the matter were an ascertained fact, and that is what the pursuer says he did. I think, therefore, that the question of malice as regards this issue should be left to arise at the trial, and that in the meantime the pursuer is entitled to an issue in simple terms. If it should become necessary at the trial to consider the question of malice, there are, I think, sufficient averments for this issue though not for the others. Before the defender made a definite charge of forgery against the pursuer (if that is what he really did), it probably was his duty to communicate with Mr Sutherland as he did eventually, and ascertain the facts on the best authority. His omission to do so might be recklessness of the kind which the law holds equivalent to malice; at all events, I cannot say at present that it might not. A man may be entitled to make inquiries of others which plainly imply the commission of a crime, when he would not be justified in directly accusing the suspected person himself.

Everything depends on how the thing was done, and that cannot be determined without inquiry.”

The pursuer reclaimed, and argued—(1) No case of privilege was disclosed in his record, ( a) A statement to be privileged must be made by a person having a duty or an interest, to a person having a corresponding interest— Auld v. Shairp, July 14, 1875, 2 R. 940, following upon Laughton v. Bishop of Sodor and Man, November 1872, L.R., 4 P.C. App. 495. The ordinary bank clerks had no more right or interest to hear the bank agent's doubts than the general public— cf. Walker v. Cumming, February 1, 1868, 6 Macph. 318, where statements made to the police were held not privileged when repeated to the public. (b) A person in a privileged position must avoid unnecessary publicity— Rankine v. Roberts, November 26, 1873, 1 R. 225. The bank agent here had abused and consequently lost any privilege he might have. (c) A person even if privileged is not privileged in every statement he may make. The statements here made on the third occasion referred to were plainly not privileged— Fraser v. Wilson, December 10, 1850, 13 D. 289; Milne v. Bauchope, July 19, 1867, 5 Macph. 1114. (2) If it should appear

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at the trial that the statements were privileged, there was sufficient averment of malice looking to M'Donald v. Fergusson, March 10, 1853, 15 D. 545; Blackett v. Lang, June 21, 1854; M'Murchy v. Campbell, May 21, 1887, 14 R. 725; Beaton v. Ivory, July 19, 1887, 14 R 1057; Innes v. Adamson, October 25, 1889, 17 R. 11 (Lord President Inglis, p. 15); Bruce v. Leisk, February 20, 1892, 19 R. 482 (Lord Kinnear, p. 487). (3) It was not necessary to insert the words “and without probable cause” of Croucher v. Inglis, June 14, 1889, 16 R. 774.

Argued for respondent—(1) The statements complained of were not slanderous because not statements of fact, but only of opinion upon known facts— Archer v. Ritchie & Company, March 19, 1891, 18 R 719 (Lord M'Laren, p. 727); Turnbull v. Oliver, November 21, 1891, 19 R. 154. (2) The occasions were privileged and “maliciously” must be inserted in the issue. The statements were made only in presence of bank officials. The pursuer was unable to condescend upon any member of the public being present. The defender was bound to investigate so as to protect the bank. He was not bound to go at once to Mr Sutherland, and even if he had gone, that would not have been sufficient inquiry. (3) Doubtless the defender might with safety leave the question of malice to be determined by the judge at the trial, but looking to Stuart v. Moss, December 5, 1885, 13 R. 299, he was entitled to have malice inserted now. (4) Malice was not relevantly and sufficiently averred— Watson v. Burnet, February 8, 1862, 24 D. 494; Ritchie & Son v. Barton, March 16, 1883, 10 R. 813; Selbie v. Saint, November 8, 1890, 18 R. 88. (5) The words “without probable cause” should be inserted— Hill v. Thomson, January 16, 1892, 19 R. 377.

At advising—