Scottish Court of Session Decisions

William Wallace Drysdale, law clerk, Dunfermline, wrote the following letter to the editor of the Dunfermline Journal— “Dunfermline, 18th November 1897.— Sir,—Where is the temperance party, and what is it doing, is a question which must needs arise in the mind of every thinking and thoughtful person. Is the party extinct, or is it asleep, or is it lying awake and shirking its duty? If not altogether extinct, the temperance party must, I think, be neglecting its duty with its eyes open. Surely at the present juncture, and in present circumstances, it has shown itself to be in a rather nerveless and comatose state. Publicans have of late been exulting and raising a shout of triumph over what rather appears to be a ‘publican cabinet’ in connection with our Town Council. For instance, we have a publican as a magistrate, which, I consider, is an insult to Dunfermline. Publicans as the manufacturers of criminals are not wanted, and should not be allowed to occupy a seat on our magisterial bench. We want there not vice but virtue, and the last place where virtue will be found is the drink shop. Strong drink has ever been the curse of our country. There is certainly, then, a nauseous touch of inconsistency in the fact that one who is manufacturing criminals at the one end, should be appointed to punish them at the other. In fact, the incompatibility of such an appointment with reason and common sense is only too apparent. Then, again, we have had a publican recently elected as Dean of Guild. What is the reason for this? Is it intended that he should bring grist to the publicans’ mill? A flood of applications for extension of premises may now be expected. It is both disgraceful and deplorable that licensed poisoners, along with their allies, should be allowed

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to compose what may practically be said to be ‘Publican Officialism’ in our Town Council. No publican should be allowed even to hold a seat as a councillor. It is impossible for him to act in the interests of the community. The temperance party then, if they wish to reflect credit on their own organisation must, at the earliest and most opportune moment, take up the cudgels and aim at supplanting those in authority over us, whose purpose it is not to work in the interests of the community, but in the interests of crime and ruin.—Yours, &c., Wm. Wallace Drysdale.” The letter was published in the issue of the newspaper of 20th November 1897.

Thereafter David Wardlaw, grocer and wine merchant, Dunfermline, the only one of the magistrates of that town who held a licence for the sale of exciseable liquors, and Thomas Stewart, grocer and wine merchant, Dunfermline, Dean of Guild of the burgh, raised separate actions for £50 as damages for slander against Drysdale in the Dunfermline Sheriff Court.

In Wardlaw's action the pursuers averred—“Said letter is in whole or in part of and concerning the pursuer, and falsely, maliciously, and calumniously, or falsely and calumniously, represents that pursuer is a man of vicious and degraded character, who for pecuniary profit in his business knowingly conducts it so as to produce crime and ruin among his customers; that he knowingly sells to his customers drink of inferior and poisonous quality; that he is incapable of acting disinterestedly in his public capacity, and has assumed the office of magistrate for the purpose of using it corruptly in the publican interest, while promoting crime and ruin among others. (Cond. 4) The said newspaper is published in Dunfermline, and is widely circulated in Dunfermline and the West of Fife, and the said letter, and the false, slanderous, and malicious statements of the defender regarding the pursuer therein contained, have thereby obtained great publicity. The defender has by the writing and by the publication of said letter exposed the pursuer to public hatred, contempt, and obloquy. The pursuer has been much injured in his feelings and reputation by defender's actings. (Cond. 5) The defender has been requested to withdraw and apologise for the writing and publication of the said slanderous letter, but he refuses to do so, and hence the necessity of the present action.”

Similar averments were made in Stewart's action.

In both actions the defender stated that he had no personal acquaintance with the pursuer and did not intend to make any allegations against his character or reputation as an individual apart from his occupation as one of a class engaged in the traffic of intoxicating liquors. He pleaded—“(1) The action is irrelevant. (2) The defender not having slandered the pursuer he is entitled to be assoilzied, with expenses. (3) The allegations in the letter complained of not being directed against the pursuer personally but against the business in which he is engaged, and said business being the subject of a universally recognised controversy between the publican party on the one hand and the temperance party on the other, the language used is not actionable, and the action ought to be dismissed, with expenses.”

On 1st February 1898 the Sheriff-Substitute ( Gillespie) pronounced the following interlocutor in Wardlaw's action—“Allows to the pursuer a proof of his averments that the said letter falsely and calumniously represents that pursuer has assumed the office of magistrate for the purpose of using it corruptly in the publican interest, while promoting crime and ruin among others, and that the pursuer has thereby been injured in his feelings and reputation; and to the defender a conjunct probation, including the averments stated in the defences.”

A similar interlocutor was pronounced in Stewart's action.

The pursuers in both actions appealed to the Court of Session for jury trial. The issue proposed by the pursuer Wardlaw was as follows—“Whether the defender wrote to the Dunfermline Journal newspaper, for publication therein, a letter in the terms contained in the schedule hereto annexed, and published in said newspaper on 20th November 1897, and whether said letter, in whole or in part, is of and concerning the pursuer, and falsely and calumniously represents (1) that the pursuer is a man of vicious character, and a licensed poisoner, or an ally of such, and, for personal profit and regardless of the public interest, so retails exciseable liquors in Dunfermline as to produce crime and ruin there; and (2) that the pursuer has assumed the office of magistrate for the purpose of acting therein corruptly in the publican interest, to the pursuer's loss, injury, and damage? Damages laid at £50.” A similar issue was proposed in Stewart's case.

The defender took advantage of the appeal and moved that the actions should be dismissed as irrelevant. He argued— He was a member of the temperance party, who held that the trade of a seller of strong drink was by reason of its own qualities one which manufactured criminals and increased the amount of misery and vice in the country, and that strong drink was in itself poisonous. The letter was only a comment on the pursuer's occupation, not a slander upon him as an individual.

Argued for pursuers—The actions were relevant. The letter contained charges of corruption and infidelity to the public trust against the pursuers, and intimated that they would act corruptly in their public offices. Such charges were slanderous— Mitchell v. Grierson, January 13, 1894, 21 R. 367. It might be said that the letter contained charges against all publicans, but their application to all publicans did not lessen the stain of the charge in the pursuers' individual oases. If the meaning which they put upon the letter was able to

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be put upon it, they were entitled to go before a jury— Waddell v. Roxburgh, June 9, 1894, 21 R. 883.