Scottish Court of Session Decisions

Lord President—This is certainly a somewhat singular action. It was raised in the Sheriff Court of Lanarkshire at Glasgow by the pursuer against his wife, and he sues for damages on the ground that she had said that he induced her to take arsenic. The Sheriff-Substitute and the Sheriff have carefully considered the case and have arrived at the conclusion that the action must fail on the grounds (first) that it is not maintainable in law, and (second) that it was not raised until eighteen months after the alleged slander was uttered, the delay suggesting the conclusion that the alleged slander could not have been regarded as serious at the time when it is alleged to have been uttered. It is admitted that so far as known no such action has hitherto been sustained in Scotland, and that goes some way, though perhaps not very far, towards sustaining the conclusion that it is incompetent. But Mr Orr has referred us to authority which makes it clear that in England such an action is not allowed. The case of Philipps v. Barnet, February 1, 1876, 1 Q.B.D. 437, was decided by four eminent Judges on the very intelligible ground that so long as the marriage is undissolved the husband and wife are one person in law. No doubt certain separate rights as regards property are conferred upon the wife by statute, and these are protected by law, but none of the statutes provide or suggest that while the marriage remains undissolved an action will lie at the instance of either spouse against the other in respect of something slanderous having been said by one in regard to the other. One can see that if such an action were allowed it would not contribute to domestic peace but open the door to claims which had much better be left to sleep. If every domestic squabble were followed by an action of defamation there would be a large addition to the business of the Court, and it would be highly inexpedient in the interest of both husband and wife. I think that the view which has received effect in England is both sound and expedient, and that we should give effect to it here. On that ground I think that the judgments of the Sheriff-Substitute and the Sheriff are right.

The Sheriff-Substitute has also given weight to the fact that the action was not brought till eighteen months after the alleged slander had been uttered, and no doubt considerations as to time are of importance. No reasonable excuse has been stated by the appellant for the long delay in raising his action, and if no tacit prescription of words spoken in anger or in heat were allowed actions would lie for every angry or hasty word spoken within forty years in the privacy of the home. While this consideration is entitled to weight, it seems to me sufficient to base the judgment upon the first ground stated.

Lord M'Laren—It is clear that under our older law no action of damages could have been brought between spouses, and for this reason, that if the action had been at the husband's instance against the wife he could have recovered nothing, because all her personal property passed to him on marriage; and again, if the action was at the instance of the wife against the husband, any sum she might have recovered from him would have immediately vested in him under his jus mariti. In these circumstances the law would not give a right of action which could have no useful result. But then in the course of time separate interests in property were conferred upon the wife, first by antenuptial contracts and later by statute. It is one thing for the law to recognise these separate interests and to protect the wife in their enjoyment, but it is quite another thing to reverse the principles of the older law and to sustain a personal action by a wife against a husband, or by a husband against a wife, having no relation to the wife's separate property.

Making allowance for the difference of phraseology in the laws of England and Scotland, the grounds which I have stated against the competency of this action are substantially the same as those developed by Lord Blackburn in the case of Philipps v. Barnet. I regard that case as an authority to be recognised by Scottish Courts, as it does not depend on any peculiarity of the law of England in regard to

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