Scottish Court of Session Decisions

This was an action of damages for slander raised by Robert Murdoch Kessack against Alexander Kessack. The damages were fixed at £1000.

The slander complained of was contained in a letter written by the defender to the pursuer on 9th July 1898. The following was the passage founded on by the pursuer:—“Perhaps you will answer me the following questions—Did you ever write to me when I was in Glasgow offering me £50 to set fire to the Princess Theatre, Leith, or have I dreamt it? Did you ever tell me that you set fire to the Black Bull Inn, Inverness? Did you ever tell me that you wrecked the schooner ‘Cheviot?” Did you ever tell me that you stole a sheep while in Cromarty Frith with the schooner ‘Cheviot?’ I could ask you a few more questions, but I refrain from doing so meantime. You will of course understand that I do not say you did any of these deeds. I simply ask you the questions.”

The pursuer averred that the said letter was intended to represent that the pursuer had invited the defender to commit fire-raising, and that the pursuer had been guilty of fire-raising and other crimes. The pursuer also averred that on 11th January 1898 the defender had produced a copy of the letter, and read it over to a third party.

The defender averred that the pursuer had committed the crimes referred to in the letter, and, inter alia, pleaded veritas.

The following issue and counter-issues were adjusted:—“1. Whether on or about 9th July 1898 the defender wrote and sent to the pursuer a letter in the terms contained in the schedule hereto annexed, and whether the said letter is of and concerning the pursuer, and falsely and calumniously represents, and was intended by the defender to represent, that the pursuer had incited the defender to commit the crime of wilful fire-raising, and that the pursuer had admitted to the defender that he had been guilty of the crimes of wilful fire-raising, and of wilful destruction of a ship, and of theft, or of one or more of them? Or (1) Whether in or about the month of February 1888 the pursuer offered the defender a sum of money to set fire to the Princess Theatre, Leith? (2) Whether in or about the month of March 1884 the pursuer told defender that he had set fire to the Black Bull Inn, Inverness? (3) Whether in or about the month of April 1877 the pursuer told defender that he had wrecked the schooner ‘Cheviot’ in the Cromarty Firth? (4) Whether in or about the month of April 1876 the pursuer told defender that he stole a sheep when he was with the schooner ‘Cheviot’ in the Cromarty Firth?” There was also a second issue, with counter-issues, as to the reading of the letter by the defender to a third party.

At the commencement of the trial on 30th December the pursuer intimated that he proposed, subject to the approval of his Lordship, to prove merely the publication of the slander to begin with. He suggested that thereafter the defender should lead evidence in support of his counter-issue, and that then the pursuer should adduce evidence to meet the defender's substantive case— Scott v. M'Gavin and Others, June 25, 1821, 2 Murray, 484, per Lord Chief Commissioner Adam, 489.

The defender objected to the course proposed, and maintained that it was contrary to the usual practice.

The Lord President allowed the pursuer to follow the procedure suggested by him, but reminded him that the evidence he led

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at the first stage must be rigidly confined to proof of the writing of the letter, of the reading of the letter to a third party, and of damage sustained by the pursuer.

The jury returned a verdict for the pursuer on the first issue—damages £50, and by direction of the Court a verdict for the defender on the second issue.

Upon the motion of the pursuer to apply the verdict and find him entitled to expenses, the defender objected, and moved that neither party be found entitled to expenses. The defender had been entirely successful on the second issue which was the more important one— Shepherd v. Elliot, March 20, 1896, 23 R. 695; Harnett v. Wise,L.R., 5 Ex. D. 307.

The pursuer referred to Balfour v. Wallace, December 3,1853, 16 D. 110, and Rogers v. Dick, February 4, 1864, 2 Macph. 591; and submitted that there was no good ground for departing from the ordinary rule that expenses follow the event. The jury had awarded a substantial sum as damages.