Scottish Court of Session Decisions

Thomas Kyle Burnet, commercial traveller, Ealing, raised an action against George Gow, tweed cloth merchant, Gresham Street, London, concluding for payment of £1000 as damages in respect of slander.

The following issues were approved by the Lord Ordinary for the trial of the case:—“Whether, in or about the latter half of July 1895, the defender falsely and calumniously said to Thomas Haig, one of the partners of Messrs Bertram & Haig, clothiers, within their shop No. 12 Maitland Street, Edinburgh, that the pursuer was a man of immoral character; that he kept a mistress; that he had on one occasion, while in the employment of the defender or his firm, lived for some time with this mistress, pretending to his wife that he was out of town, or did use and utter words of the like import and effect of and concerning the pursuer, to his loss, injury, and damage? Damages laid at £500. 2. Whether, in or about the latter half of July 1895, the defender falsely and calumniously said to Alexander Sutherland, clothier, within his shop No. 2A Maitland Street, Edinburgh, that the pursuer was a man of immoral character and kept a mistress, or did use and utter words of the like import and effect of and concerning the pursuer, to his loss, injury, and damage? Damages laid at £500.”

The defender averred—(Ans. 4)… “The pursuer is a man of immoral character, and during the last two years has associated and has committed adultery with a young woman named Miss Ada Knight, sometime residing at 45 Judd Street, King's Gross, London. The said woman repeatedly called for the pursuer at the business premises of George Gow, Son & Company. On several of these occasions the pursuer went away with her, and on returning after an absence of an hour or more, informed Arthur Gibson, warehouseman in the employment of said firm, that he had had sexual intercourse with said woman. On one such occasion he also gave the same information to Archibald M'Lellan, cashier to said firm. The pursuer further committed adultery with said woman in a temperance hotel at Paddington Railway Station, London, in or about the month of March 1895, at the Stork Hotel, Birmingham, in or about the said month of March 1895, and at an hotel in Teignmouth, in or about the month of August 1895. He also committed adultery with her at his office at 14 Golden Square, London, in or about the month of April 1896, and on other occasions. Further, he has committed adultery with her in various other places and at other dates to the defender unknown.”

He pleaded—“(4) Veritas, or otherwise, the pursuer having been in fact of immoral character, and having committed adultery, and having also been on several occasions unfit for business owing to intoxication, and any statements made by the defender as to the pursuer's character being consistent with fact, the defender should be assoilzied.”

The defender proposed the following counter-issue: — “Whether, during the period of two years prior to the raising of the action, the pursuer has repeatedly committed adultery with Miss Ada Knight, sometime residing at 45 Judd Street, King's Gross, London?”

The Lord Ordinary ( Kincairney), on 21st October 1896, disallowed the proposed counter-issue.

Opinion.—“There is no question in this case about the pursuer's issue. But the pursuer maintains that no counter-issue of veritas ought to be allowed, because the defender denies on record that he uttered the slander averred. The pursuer maintains that the defender cannot both deny the slander and justify it. I am, indeed, of opinion that here no issue of veritas should be allowed, but not on that ground. As at present advised, I see no objection to such pleading. It is not inconsistent to say, I

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never said the words alleged, hut at anyrate they are true; and a defender may have a legitimate interest in so providing for the possible event of the jury being of opinion, contrary to his own assertion, that he did utter the slander. I think there is no sufficient authority for the pursuer's contention. In the rubric of Harkes v. Mouat, March 4, 1862, 24 D. 701, the Lord Justice-Clerk (Inglis) is said to have observed ‘That in an action of damages for slander a defender cannot obtain an issue in justification without admitting the libel as alleged by the pursuer.’ But as I read the opinion of the Lord Justice-Clerk, he says nothing of the sort. What he does say is, that an issue of justification must proceed on the assumption that the defender not only used the words alleged but used them in the sense Jnnuendoed. But that is quite different from the rubric, which appears to be entirely unauthorised. In Fraser v. Wilson, December 18, 1850, 13 D. 289, also referred to by the pursuer, it was held that a defender could not he allowed an issue of privilege if he denied the use of the words libelled and did not give the words used. But that is obviously a different matter. On the other hand, in Mason v. Tait, May 10, 1851, 13 D. 1347, an issue in justification was allowed, although the defender denied the acts of defamation libelled. As at present advised, I should not have disallowed the counter-issue, if there had been no other reasons against it except the defender's denial that he had uttered the slander. In my opinion, however, the counter-issue falls to be disallowed because the record does not afford materials for an issue of veritas. The charge made is that the defender said of the pursuer that he was a man of immoral character, and that being a married man he kept a mistress. The defender seeks to justify this assertion, supposing it made, by alleging two acts of adultery—and two only—before the date of the alleged libel. But it appears to me that proof of these two acts would not justify the general accusation said to have been made; and that the counter-issue, limited by the record, falls short of the pursuer's issue to a material extent—see Milne v. Walker, November 24, 1893, 21 R. 155. Our practice does not allow a counter-issue which may tend to palliate but does not justify the slander. On the record averments are made of acts of adultery after the date of the slander. But these could not justify it. Then there is an averment that the pursuer himself had said that on certain occasions he had had sexual intercourse with a woman mentioned. But then the defender would not aver (I hardly know why)—the point was pressed on his notice—that on these occasions sexual intercourse actually took place. If he had made that averment the case might have been different. As it is, the averment has no bearing whatever on the issue of veritas, and must be held wholly irrelevant. I do not object to the general terms in which the proposed counter-issue is couched. That appears to be quite right, and to follow the recent case of Hunter v. Macnaughton, June 5, 1894, 21 R. 850. But I think the instances averred on record are too few to justify the general issue. The defender maintained that he could attack the pursuer's character at the trial without a counter-issue. That point does not arise at present, and I express no opinion about it.”

The defender reclaimed, and argued—He was entitled to a counter issue if he could prove the gravamen of the charge contained in it, and his averments came up to that. This case was different from that of Milne v. Hunter, quoted by the Lord Ordinary, for here one act by the pursuer was sufficient to establish that depravity of character in him which would support a plea of veritas, while there one act would not indicate depravity of character. There was, on the other hand, ample authority for allowing a counter issue of this kind on averments no stronger than those in Ans. 4 — Carmichael v. Cowan, December 19, 1862, 1 Macph. 264; Mason v. Tait, July 10, 1851, 13 D. 1347; M'Iver v. M'Neill, June 28, 1873, 11 Macph. 777; M'Leod v. Marshall, March 20, 1891, 18 R. 811. Even if there was not enough to justify the whole of the alleged slanders contained in the issues, he was entitled to show the truth of part of them— M'Neill v. Borison, November 12, 1847, 10 D. 15, at 25; Paul v. Jackson, January 23, 1884, 11 R. 460 at 463.

Argued for respondent—There were not sufficient averments by the defender to justify this counter issue. The charge against the pursuer contained in the issue was that he kept a mistress, and that was not justified by the two instances averred. The case must be ruled by the principle of Milne v. Walker, supra. In the case of Fletcher v. Wilson, February 21, 1885, 12 R. 683, it was held that averments of two cases of theft were not sufficient to justify a general counter issue such as this. The proper one according to defender's record would have been an enumeration of the specific charges averred.

At advising—