thought that the defender had probable cause for making the statements he did on the occasion; 4th, as to what took place at M'Naught's house there is more difficulty, but on the whole it is thought that the vague words "aye, four or five," used by an excited man in the course of a confidential and otherwise undoubtedly privileged conversation are not a sufficient ground of damage, seeing especially that these words did not really increase the injury which the rest of the communication was calculated to produce, and that there is a complete absence of any proof of malice towards the pursuer on the defender's part. The Note in Black's case referred to is as follows:NOTE.-It does not appear that the defender ever made a statement, good or bad, in relation to the pursuer's character prior to his being proposed as a suitable candidate for the situation of minister of the Tabernacle Church in the first week of January, or subsequent to the 25th of that month, when he was elected to that office, and the statements which he did make were all employed for the exclusive purpose of influencing the opinions of members of the congregation possessing, like the defender himself, the right of suffrage in the election, and they were made solely to members of the church, without the presence of third parties, excepting in the case of James M'Naught, Jun., who, though a sitter in the Tabernacle, was not a member of the church, and happened to hear from his bed what the defender and Creelman were saying to his father. It does not appear, however, that James M'Naught, Jun., was visible at the time, or that the defender knew that he was within hear ing. The circumstance of his overhearing what passed therefore is no otherwise important than in so far as it enables him to speak as to what was actually said between his father, on the one part, and the defender and Creelman, on the other. The first question that arises, then, is, whether the defendant's statements were privileged communications? It is not doubted that this question must be answered in the affirmative. The general rule deducible from the decisions of the Courts of Law on the subject has been succinctly and accurately stated by Mr Guthrie Smith in his recent Treatise on Reparation, p. 203. It is there stated that "a communication made bona fide on any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, and although it contain criminatory matter which, with out this privilege, would be slanderous and actionable. This protection extends to moral and social duties of imperfect obligation." It is unnecessary to enlarge on the applicability of the above rule to the present case. It was a matter of serious interest to all the electors of the Tabernacle congregation to secure a suitable minister, and it was a duty which each of them owed to himself and his fellows to communicate whatever facts he knew relative to any candidate, in so far as these affected the question of his fitness for the vacant office. It may be true that the pursuer did not put himself forward as a candidate, but that is really of no consequence, for he was at least proposed as such to the congregation, and preached thereafter, and accepted the office when elected to it. If, then, the defender's statements were privileged, the only question that remains to be considered is, whether they were made as the pursuer alleges them to have been made--"maliciously and without probable cause.' The pursuer has failed to prove that such was the case. There is nothing like a substantive attempt to prove malice. It may be surmised that something of the kind is sought to be insinuated by the attempted proof that the alleged slanders were put forth by the defender, because he was piqued that any person not an adherent of the Morissonian body should have been proposed as a candidate. But if this was meant, the attempt was an utter failure. No special malice is proved. But it may be asked, Is malice not to be inferred from the total and glaring absence of any probable cause for uttering the alleged slanders? This question must also be answered in the nega. tive. The history of the case is easily read when the evidence is arranged in its proper order. A member of the congregation, Robert Corran, who is called for the defender as a witness, explains that the day after the pursuer first preached, he told the defender that he thought-from what he had heard as to the transference of a Mr Armstrong from Paisley to the Primitive Methodist congregation at Motherwell, the previous year-it was to be inferred that that congregation was in a declining state; and that as the pursuer had been formerly pastor of that congregation, it would be desirable to know what was thought of him at Motherwell. Although Corran's inferences were in some respects erroneous, they put the defender on the scent. He went to Motherwell, and saw there several of the officebearers of the Primitive Methodist Church, some of whom had been connected with the station at Motherwell while the pursuer was resident there; and he afterwards met with the Rev. Mr Todd, formerly of the Primitive Methodist Church, and now the Morissonian minister at Beith, who had been the pursuer's superintendent when he was afterwards stationed at Glasgow. From these, and other sources to which the investigation led him, the defender learned the following main facts-1st, That when the pursuer left Settles, in Yorkshire, in 1856, his conduct in reference to women was made the subject of inquiry before some representative body of the Primitive Methodist Church, and that unfavourable rumours as to his character were prevalent in the district; 2d, That similar rumours prevailed in Motherwell, and formed the subject of conferences or communications between the superintendent and office-bearers of the Primitive Methodists at Motherwell; 3d, That the pursuer had resigned his position as a Methodist minister in Glasgow through his superior, Mr Todd, in preference to submitting to have the rumours investigated, and not as the pursuer now pretends, in order to admit of his attending college in Glasgow; and 4th, That the pursuer was reported to have had an illegitimate child born to him in Glasgow by his landlady, Miss A—. 1st, That rumours as to the pursuer's misconduct with a married woman named P—, at High Bentham, within the Settles mission, were prevalent, and were the subject of investigation by the Primitive Methodist body is proved, not only by the woman P— and her husband and others, but by the pursuer himself and his witness, Mrs M'Mahon or Lord. As to the fact to which these rumours referred, evidence has also been led. The story of the old woman P-—, though strange and startling, and involving a frightful charge of profligacy and even crime, was told with remarkable ingenuousness and simplicity, and derived considerable corroboration from the evidence of her daughter and husband. But its chief support rests upon the line of conduct which the pursuer himself adopted in reference to it. He is proved, by his own evidence, and that of the Ps, and of Mrs Lord, to have gone out of his way to visit them at Bentham, when he foresaw this inquiry; to have invited the husband and son of Mrs P- to visit him in his hotel; to have threatened them with an action which he asserted he should follow up with imprisonment if they did not procure for him a written retractation of the scandal from the old woman; to have said, that if they ventured to come to Paisley to give evidence, they would be mobbed; and finally, on getting the retractation, to have given Pa present of a sovereign as a proof of friendship or an induce ment to silence. The miserable attempt to prove by Mrs M'Mahon or Lord, a single and wholly uncorroborated witness with whom he had himself been in consultation when he visited Bentham on the above occasion-that Mrs P― was a mere filthy dreamer, and had dressed up her own impure thoughts into a charge of adultery and rape, tells more against him than for him, especially as he had asserted that Mrs P was expelled from the Primitive Methodists during his settlement at Settles, while this woman, who is his single witness on the subject, swears that up to the last hour of his ministry there, Mrs P was his most devoted follower. Either Mrs Lord must be a most inaccurate and utterly untrustworthy witness, or the pursuer must have stated what he knew to be untrue. 2d and 3d, As to the pursuer's history at Motherwell, the Sheriff-Substitute must say that, if an innocent man, the pursuer has certainly been a most unfortunate one. That rumours as to his gross imprudencies, if not gross immoralities, while stationed there became rife very soon after he left it, is proved by overwhelming testimony. The respectable and wholly unprejudiced office-bearers of the Primitive Methodists at Motherwell established the fact beyond all doubt, and prove that these rumours related to Mrs For G-, an unmarried woman at the time, and to Mrs H- then a young married woman. These rumours gave rise to an investigation, conducted by the then superintendent of the station, who is now abroad; and that investigation, the results of which were never made public, were unsatisfactory to some of the office-bearers. But it ended in this-as is most conclusively proved by Mr Todd and Mr Morton-that on the option being granted to him by Mr Todd of either retiring from the ministry, or standing a trial as to his conduct at Motherwell, the pursuer accepted the former alternative, and admitted that his behaviour would not bear scrutiny. It is unnecessary to do more than refer to the evidence of Mrs F— or G——, and Mrs H- and her husband, and Mr Evans, her class-leader among the Methodists. The Sheriff-Substitute can only say that no evidence was ever given with more apparent candour and truth than that of both Mrs G- and Mrs H- -. From the circumstances of both cases corroboration was not possible; but the fact that each of three respectable women, without any intelligible motive to injure the pursuer, and with every inducement to conceal what involved painful exposure of themselves, have all distinctly alleged on oath separate acts of impurity, or gross impropriety, towards herself, gives room to the application of a principle well known both in civil and criminal lawviz., that a series of similar though distinct offences, each sworn to by a single but credible witness, and not contradicted by other evidence, may competently be held to be proved. (See Dickson on Evidence, 2d ed., vol. ii., 1183-4.) p. The Sheriff-Substitute does not feel called on to say whether the matters in question are proved or not; it is sufficient that the defender, in asserting them to be true, did not do so without probable cause. 4th, The conduct of the pursuer towards Miss A's illegitimate child; the fact that he did speak of it as "my son," although he now asserts that it was his brother's, and that he and his sister continued to live in Miss A's house after the birth, and made the poor infant their special fondling, are circumstances which may not necessarily imply that pursuer was the father, but certainly render it easy to account for the rumour, which is clearly proved to have prevailed in Glasgow and at Motherwell, that the child was born to the pursuer. Vide evidence of Todd, Marshall, and Honeyman, defender's proof. On the whole, the SheriffSubstitute is satisfied that the defender's statements were privileged, and were neither made maliciously nor without probable cause. The fact that the defender seems to have told M'Naught that the pursuer was blamed with two illegitimate children is to be viewed as an inaccuracy, which if it does not substantially vary or materially aggravate the character of the communication made by him, will not deprive him of his plea of privilege. The same remark may be made as to the breadth of the defender's assertion as to the pursuer's dealings with married women. The proof discloses only one instance of alleged carnal intercourse with a married woman; but it is not inconsistent with the nature of the rumours prevalent at Motherwell and elsewhere, that the defender may have honestly believed that there were other instances of completed guilt there also, or that he stated anything of that import maliciously or wantonly. Both parties appealed. A reclaiming petition and answers, drawn by counsel, were lodged, and thereafter the Sheriff pronounced the following judgment: The Sheriff having considered the reclaiming petition for the pursuer, answers thereto for the defender, closed record, proof, and whole process, sustains the appeal for the pursuer, in so far as regards the finding of expenses, recalls the finding of the Sheriff-Substitute, in so far as he finds the defender entitled to expenses; quoad ultra, adheres to the interlocutor of the Sheriff-Substitute appealed against: Finds no expenses due to either party. NOTE.-The Sheriff refers to his Note to his Interlocutor of this date in the case of Elston v. Black for the reasons which induce him to adhere to the Sheriff-Substitute's Interlocutor in the present case. The defender in this case no doubt did go farther than Black did. He exaggerated Black's report, and overcoloured it when he said that it had been rumoured that the pursuer was the father of four or five illegitimate children. Black positively swears that he never said this, and there was no foundation for it in fact. Black did hear rumours about the pursuer having had "children" in England, which rumours seem to be totally unfounded, as not a particle of evidence has been brought forward to support them. Coming with this report to Paisley, Black limits the number of children to two, and as he had heard that there were "children" there was nothing very wrong in specifying two. But there was wrong in the defender in this case proceeding at once to exaggerate the number into four or five. This specification gave point to the rumour. Black says he heard it all over Paisley. The defender may have been excited, as the Sheriff-Substitute thinks, but he ought not to get into such excitements in reference to the character of other people. He had a right to speak about the pursuer's character, but he had no right to invent. Yet, taking the whole circumstances into consideration, the Sheriff does not find in this exaggera tion evidence of malice, and therefore the appeal must be dismissed so far as regards the merits. But, on the other hand, it is a case where expenses cannot be fairly awarded in the defender's favour. He provoked this action by his own heedlessness and rash speaking. The Note in Black's case referred to by the Sheriff is as follows: NOTE. The defender maintains that the statements which were made by him, and which are complained of, were true, or alternatively that even supposing they were false, yet they were privileged, and were uttered without malice. In the view that the Sheriff takes of this case, it is unnecessary to pronounce any judgment upon the first point. In justice, however, to the pursuer, it right to say that, in regard to one of the charges made against him, the Sheriff has formed an opinion in his favour. The story told by Mrs Pis not credible. She says she was ravished by the pursuer, minister of the church which she attended. She never mentions this to her husband until the pursuer had left the district. An examination follows at Settles before certain gentlemen of the Primitive Methodist communion. Apparently they did not believe the story which she told, for the pursuer continues to be a minister of this communion at Wishaw. No steps were taken against him by the governing body of the church, and it was not on account of this alleged ravishing of Mrs P-- that the Rev. Mr Todd brought pressure to bear upon him so as to compel him to leave the communion. Then the conduct of the husband is not explainable consistently with the notions of his belief in his wife's story. It certainly is not consistent with ordinary human nature to think that a husband would quietly and amicably, along with his son, sit confesses he did, in March, down to supper, as George P 1864, with the man who had so foully ravished his own wife. He also takes a sovereign from the ravisher. This may have been hush money, as suggested by the defender, or it may be (what is not uncommon) one of those acts of folly which ignorant litigants, who are so far left to themselves as to take precognitions in their own causes, often commit; but, whatever interpretation be put on this act in reference to the pursuer, it was not a very creditable thing on the part of George P to take that sovereign. In reference to the other acts of immorality, said to have been perpetrated by the pursuer in Scotland, the Sheriff does not think it necessary to express any opinion as to their truth or falsehood. There is quite enough in the cause to entitle the defender to absolvitor without a decision on the veritas. The defender was clearly in a privileged position. He was the member of a church which was in search of a minister to fill a vacancy. Clearly, every minister who is a candidate for the situation puts his charac ter in issue. The people whom he is spiritually to teach are surely entitled to inquire into his antecedents, and if they are entitled to inquire they are also entitled to tell each other what they have heard. It is quite idle to say that they can only report the information they have gained at a public meeting of the congregation. This would certainly be very often the most cruel thing for a candidate, as in all proba bility a false rumour might thus get circulated in the public newspapers. The defender thus standing in a privileged position it is essential to sustain such an action as this that malice be proved against him. Now, special malice there is none. But malice may be inferred from the way in which the statement complained of has been made. If the alleged slanderer exaggerates the rumours that he has heard, or proclaim them in places where he had no occasion to speak, such recklessness might very justly be considered malice. But the defender SHERIFF COURT, STIRLINGSHIRE-STIRLING. (SHERIFFS MOIR AND ROBERTSON.) DAVID LINDSAY AND COY. v. ANDREW CRAWFORD. Guarantee.—In an action founded on a written guarantee it was pleaded, (1) The action incompetently directed against the defender alone, no constitution of the debt against the principal debtor has been produced, nor has he been discussed; (2) The principal debtor has not been called as a party to the action-repelled. Stamp.-Process sisted to allow a letter of guarantee to be stamped. 16 and 17 Vic., cap. 80, sect. 15-Process, Dismissal of.A proof was allowed to a defender, and on his craving, six months were allowed to report. No proof was taken. On the elapse of three months the pursuer moved that the action be revived; but as the process was in the defender's custody, no Interlocutor could be pronounced. On the elapse of the six months, and no proof reported, on the process being moved in, the defender contended that the process stood dismissed by the 15th sect. of the Sheriff Court Act. Ield by the Sheriff, that, in point of fact, steps had been taken in process; but as the defender was in mala fide, the process was held as revived, and decreet given. THIS was an action raised at the instance of David Lindsay & Company, wholesale tobacco manufacturers, Edinburgh, against Andrew Crawford, upon a letter of guarantee granted by him to them. The circumstances under which this letter was granted are these:-The pursuers sold and delivered to James Fleming-then tobacconist, now Sheriff-officer in Stirling-a quantity of tobacco, the price of which amounted to £23 odds. Fleming, on being applied to by the pursuers' agent, paid the sum of £6 to account, and having delayed payment of the balance, an action was raised against him. The defender in the present action then granted a letter of guarantee in the following terms: "David D. Syme, Esq., 66 Writer, "Stirling, 3d Sept., 1860. "Stirling. "Dear Sir, "On condition of your staying proceedings "against Mr James Fleming, auctioneer here, for a debt "of £17 odds due by him to Lindsay & Co., merchants "in Leith, I undertake to see the said debt paid within "a month from this date.-I am, Dear Sir, yours truly, 66 (Signed) Andrew Crawford." The record was made up by condescendence and answers. The defender's statement was as follows:STATEMENT OF FACTS. 1. In or about December, 1860, an action was raised against the defender foresaid, founded on the above mentioned document, and sometime afterwards Mr Alexander Buchanan, then writer in Stirling, and now residing at the Cape of Good Hope, on the part of James Fleming, paid to the pursuer's procurator for their behoof, and in the capacity of their agent, the whole amount that he then owed to the pursuers, and which was remitted to them by their said procurator, and accordingly the said action against the defender was dropped, and he heard nothing more of the matter till the present summons was served about a year afterwards, and after Buchanan had left this country. The statements made in answer to this article, in additions to the condescendence, are denied. PLEAS IN LAW-DILATORY. 1. This action is incompetently directed against the defender alone, no constitution of the assumed debt has been produced against Fleming, and he has not been called as a party. 2. The action is incompetently directed against the defender alone; Fleming, whom it represents as the principal debtor, not being called, and not having been discussed. 3. The document libelled on, whether held to be a promissory note or an obligation, is null, not being stamped. PEREMPTORY. 4. As the principal debtor has long ago paid everything due by him to the pursuers, through their agent, this action is in no view warrantable against the defender. 5. The defender is entitled to a diligence and commission to examine Mr Buchanan, to recover the evidence of the payment of Fleming's debt to the pursuers, as above set forth. The preliminary pleas were disposed of by the following Interlocutor, adhered to on appeal: Having heard parties' procurators, Repels the two first preliminary pleas stated for the defender, but sustains the third preliminary plea, but to the effect only of sisting process till the proper stamp shall be affixed to the letter of obliga tion founded on, and sists the same accordingly. The record having been closed, a proof was allowed to the defender, and, on his craving, six months was given to report. No report was made, and the six months having clapsed, the Sheriff-Substitute thereafter pronounced the following Interlocutor: Having considered the closed record, productions, and whole process, and heard parties' procurators thereon, Decerns against the defender in terms of the conclusions of the libel: Finds the pursuers entitled to expenses: Allows an account thereof to be given in, and remits the same, when lodged, to the auditor of Court to tax and report, and decerns. NOTE. The dilatory pleas in this action were all long ago finally repelled the two first so far back as 27th January, 1863, and the third by the Sheriff on appeal on 16th October, 1863. The only peremptory defence on the record is payment by the hands of Mr Buchanan, and the letter of guarantee being admitted, the case was narrowed to that single issue. No attempt, however, has been made to instruct this defence, and circumduction having been pronounced, no other judg ment is now possible but decree in terms of the summons. On appeal, the Sheriff pronounced a judgment adhering, and he added the following— NOTE. The attempt made at the debate to revive the preliminary pleas which had been all previously repelled the Sheriff holds to have been incompetent. The two first preliminary pleas were repelled by Interlocutor of 27th January, 1863, and against that Interlocutor, in so far as it repelled The defender, however, these pleas, no appeal was taken. did appeal against the Interlocutor, in so far as regarded the third plea relative to the stamp, and his appeal was considered and dismissed hy the Interlocutor of 7th April, 1863. The defender then went on to make up a record on the merits, and it was closed on the 16th June, 1863. To allow the two first preliminary pleas to be now revived, after judgment on the merits, would be contrary to every rule of procedure. But the only question which was seriously argued before the Sheriff was, that no Interlocutor on the merits could be pronouncedin respect the process had fallen, and stood dismissed in terms of the 15th sect. of the Statute 16 and 17 Vict., cap. 80, no step having been taken in it for six months after the Inter INDEX. SHERIFF COURT REPORTS. Aliment-Parent and Child-Husband Held that a written offer to paint a .47 .30 An agreement contrary to the rule of See Rules-see Proof. Bankrupt-Sequestration- .2 ...41 A creditor presented a petition to the presented a petition for the seques- ..36 Reduction-Act of Parliament 1621, petent, and that it was in the Bastard— Proof-Circumstances in which pater- Bill- Endorsation-B cashed a bill drawn Boundaries-Where there is a defined Carrier-Public-General and Special .15 Construction-Assignation--Harbour extinction of the larger sum due by Competition for Trusteeship-Promis- In what circumstances may a gas An incorporated gas company held What is an Approved Bill?-In terms tion, What is an approved bill? 165 tradesman had contracted to exe- Cessio- Domicil-Jurisdiction-A debtor im- A working baker (a married man) Jurisdiction-Foreigner-Damages- Domicil-Execution-Improbation- |