Scottish Court of Session Decisions

Lord M'Laren.—I come to the consideration of this case by first putting the question—What would have been the result of this case had it gone to a jury? It would be open to a jury, notwithstanding that the words charged were proved, to find a verdict for the defender, on the ground that in their opinion the words were not used in a calumnious or slanderous sense, but were merely a part of the abuse which two parties when quarrelling, were heaping upon one another. Where a case originates in the Sheriff Court it does not admit of doubt that the Sheriff who hears the evidence, and those who are to review his judgment on appeal, are to consider the case in the same way as it would properly be considered by a jury upon the evidence.

Now the facts are very simple. It appears that the pursuer and defender were attending an auction sale. Each thought that a particular horse had been knocked down to him at £5, 10s. One would hardly have expected that a horse of that value would excite so keen a competition for ownership. But the parties were hot-tempered. The pursuer, seeing the defender walking away with the horse, made insinuations. Witnesses differ as to the exact words used, but I can hardly doubt that the insinuation was that the defender was dishonestly endeavouring to carry away his horse, because the pursuer followed up his words by going in search of a policeman and telling him to take the defender in charge. There can be no doubt that the policeman was sent for, and we have his evidence, which is to the effect that he found on inquiry that there was nothing but a dispute on matters civil, in which he declined to interfere. I refer to that circumstance because it throws considerable light on the conduct of the defender when he, not being in a good humour, proceeded to make his retort. The Sheriff-depute, altering the judgment of the Sheriff-substitute, has found that the statements concerning the pursuer were false, but were uttered in rixa and after provocation. It is not quite clear what the words used by the defender were. On record it is stated—passing over the accusation of his being a liar—that the words were, the “pursuer should have been in the hands of the police twenty times during the past five years.” The defender admits having made an allusion about the police, but puts it rather that the pursuer had been so unfortunate in his proceedings in the civil Court that he ought to have a policeman to look after him. That sounds rather like a revised version of the words used; but supposing that the expression as put on record is proved, as I am inclined to think it is proved, then the first question that arises is whether we can sustain the Sheriff's finding that these words, which he says were false but does not say were calumnious, are justified by the fact that they were spoken in rixa. Now, giving the meaning appropriate to the words of the Sheriffs finding, I think it amounts to this—that it is in law a defence to a false accusation that it was spoken in heat when parties were quarrelling. I am not prepared to affirm that proposition. If a party, under whatever amount of provocation, makes a definite charge of crime or a charge of dishonest conduct against another, giving such point in regard to time and circumstances as to lead those who were present to believe that the charge was seriously made, it is no defence that the words were spoken in heat. But then it is a very relevant consideration, when weighing the evidence, to consider that the words were spoken in heat, for the purpose of finding out the true sense in which the words were used. Another consideration bearing on the same point—the sense in which the words were used—is whether the charge was definite or indefinite. Now, this is a jury question. I do not propose to elaborate it; but looking first at the circumstances that this was no definite charge of crime, but a vague statement that the pursuer should have been in the hands of the police twenty times within the last five years, that the words were spoken in anger, and that the defender himself had been either directly or constructively charged with theft, I should think it the most unlikely thing in the world that any of the by-standers understood the language of the defender as importing that the pursuer was known to the police—a person who had committed crime or had frequently been accused of crime. I think they would understand the expression as meaning nothing more than mere abuse intended by way of retaliation for the charge that had been made against the defender himself. That being so, it follows in my opinion that although the words were not true, still they were not calumnious, because they were not used in a defamatory sense, or with the intention of causing an injury to the pursuer in his character and feelings. The case appears to me to be of the same type as the case of Cockburn v. Reekie, which was cited to us by Mr Adamson, where the defender, in the course of a quarrel, said to the pursuer “I will put you in prison”; and the late Lord President, in commenting on the evidence, said that the words were admittedly used, but that they would not bear the construction which was put upon them. He adds, “I think it is a most unreasonable and forced construction, because the only imputation with which parties were dealing was one of neglect of duty.” Now I think that in a dispute as to the ownership of a horse which had been knocked down at an auction sale, it would be unreasonable to think that vituperative language used by either party had, or was intended to have, anything to do with a criminal charge; and on that ground I am of opinion that the finding of the Sheriff should be recalled and the defender assoilzied. As regards the expenses in the Sheriff Court, which are part of the merits of the case, I am unable to see my way to propose that the defender should have these expenses, because I think he does not come into Court with clean hands, and more than one witness said that he thought the pursuer was bound to take some steps to vindicate his character.

The Lord President, Lord Adam, and Lord Kinnear concurred.