v. "Ayrshire Post,"

criminal kind. In particular, the said pretended letter falsely and calumniously represented the pursuer as longing for an opportunity of committing murder on his Roman Catholie fellow-citizens, or, at all events, of shedding their blood in civil commotion. The said letter is calculated to hold up the pursuer to the contempt and hatred of the community with which he is connected, and of inciting the hatred against him of many of his fellow-citizens. In particular, the reference to the incidents of 1831 has grievously injured the pursuer's feelings, inasmuch as one of his relatives suffered capital punishment in consequence of his participation in certain riots which then took place. The said occurrence was known to very few persons, but in consequence of the said letter it has become matter of public talk. The said calumnious statements were made maliciously for the purpose of injuring the pursuer, and of gratifying the political animosity which it is believed and averred the defenders or their manager cherished against him."

The defenders admitted that the letter was not written by the pursuer, but explained that at the time they were, after due inquiries, under the bona fide belief that it came from him, and that he wished it published. His name was not however mentioned, nor was any statement made about him. They further explained that their manager had by letter to the pursuer dated 2nd August, stated “Far be it from us to traduce you or anyone without reason, and I am only too anxious to assist you in finding out the culprit."

The pursuer lodged an issue of slander in ordinary form, and alternatively proposed an issue finally adjusted to read thus:"Whether the said letter and paragraph are of and concerning the pursuer, and falsely impute to him that he is and avows himself to be a person of fanatical and odious sentiments who desires an opportunity of shedding the blood of his Roman Catholic fellow-citizens in civil commotion; and whether the said letter and paragraph were written and published with the design and with the result of holding up the pursuer to public hatred and contempt, to his loss, injury, and damage?”

Upon 9th December 1893 the Lord Ordinary (KYLLACHY) disallowed the first issue and approved of the second.

"Opinion.-In this case the pursuer proposes two alternative issues, the one an ordinary issue of slander, and the other an issue in a special form similar to the issues allowed by the Court in Sheriff v. Wilson, 17 D. 52; Cunningham v. Phillips, 6 Macph. 926; Maclaren v. Ritchie (not reported); Paterson v. Welch, 20 R. 744.

"I have come to the conclusion that the second of those issues, somewhat altered in its terms, is the proper issue to try the case. I am not satisfied that the imputations on the pursuer's character amount to slander, that is to say, to a charge against his character. To say of a man that he is a fanatic, or that he holds or avows sentiments which are even widely fanatical, may be very offensive and very injurious, but I am not

satisfied that such a statement is in any proper sense defamatory so as to be actionable per se, and without an express averment of intention to injure. I am not therefore prepared to send the first issue to the jury, more especially as no precedent can be found for an issue of slander in such circumstances.

"The second, I propose, should run thus -[as quoted supra].

"It will be observed that as intention to injure is of the essence of the charge under this issue, I have put the question whether the letter and paragraph in question were written and published with that design. It will be for the jury to say at the trial if the facts raise the question whether an intention to injure on the part of the defender is consistent with what the defender alleges, viz., that he made all due inquiries, and had a bona fide belief in the authenticity of the

letter.

The pursuer reclaimed, and argued that he was entitled to an issue of slander. It would be difficult to imagine a worse slander than to say of a person, living as the pursuer did among Roman Catholics, that he entertained the sentiments expressed in this letter. Here he was actually made to express these sentiments. It was because there was no slander, although there might be verbal injury, that the issue in Paterson v. Welch was adopted. The case was ruled by the cases of Mackay v. Campbell, July 25, 1893, 11 S. 1031; Russel v. Shireffs, March 16, 1837, 15 S. 881; Graham v. Roy, February, 11, 1851, 13 D. 634. This case was stronger than that of Macfarlane v. Black & Company, July 6, 1887, 14 R. 1870, where it was held to be a slander to call a man a "scoffer;" here the pursuer was said to desire the blood of those who differed with him in religious opinion.

Argued for the defenders - This letter must be read as a whole, and when so read was not slanderous. It was not to be taken seriously. At the worst it ascribed to the writer of the letter extreme political fanaticism. That was not slanderous. Nothing was said against his private character. It would be unfair to allow an issue of slander, because as they were not proving veritas and could not prove privilege they could not then get into the whole case, which showed they had acted under an erroneous but justifiable impression. The issue allowed by the Lord Ordinary, upon the authorities referred to by his Lordship, would fully meet the case and was the proper one in the circumstances.

At advising

LORD PRESIDENT-The first question to be considered is, whether an issue of slander should be granted. Now, the way in which the case strikes me is this-The pursuer complains that the newspaper held out to the public that he had written and sent for publication the letter printed by them. If it would be immoral or a piece of grievous misconduct to offer for publication the letter attributed to him, then it is plain that an assertion that he wrote it and

v.

that he would be quite prepared to adopt the course suggested by the Court, but the effect of that would be to leave standing against the prisoner the plea of guilty which he had tendered. He suggested that reading the 31st section of the statute along with the 41st, the accused might in the circumstances be permitted to withdraw the plea.

The Advocate-Depute then intimated that he desired to withdraw the libel in the case, which he did by the following minute:-"I hereby withdraw the libel. (Signed) J. CAMPBELL LORIMER, A.-D."

LORD JUSTICE-CLERK-In that view, the prisoner having wished to withdraw his plea, I shall allow the plea to be withdrawn from the record, and the diet will be deserted simpliciter.

The Court dismissed the panel from the bar, having in respect of the withdrawal of the libel allowed him to withdraw his plea.

Counsel for the Crown-Campbell Lorimer, A.-D. Reid, A.-D. Agent-Crown Agent.

Counsel for the Panel-Guy. Dobie & Scott, S.S.C.

Agent

COURT OF SESSION.

Wednesday, January 10.

FIRST DIVISION.

[Sheriff of Ross, Cromarty, and Sutherland.

LANG v. CAMERON.

Contract Barter Pactum illicitum Weights and Measures Act 1878 (41 and 42 Vict. c. 49), sec. 19.

Held that a contract of barter, wherein one party bargained for delivery of 600 stones of hay at 24 imperial pounds the stone, was not void under the provisions of the Weights and Measures Act 1878. Major Lang brought an action in the Sheriff Court at Dornoch against Alexander Cameron, farmer, craving the Court to ordain the defender to deliver him 600 stones of hay, each stone to consist of 24 imperial standard pounds avordupois, or otherwise to pay him £32, 10s.

The pursuer averred that on 18th October 1892 the defender had sold him 600 stones of hay, each stone to consist of 24 imperial pounds, and 24 quarters of oats, and that in exchange he had sold the defender a black pony.

The defender stated that what he had undertaken to give was 2 quarters of oats and 600 stones of hay. He had delivered the oats, and was prepared to deliver 600 imperial stones of hay, but the pursuer declined to take the same.

The defender pleaded, inter alia—“(4) The bargain, as stated by pursuer, being

contrary to law, could not, even if admitted by defender, be enforced, and the action ought to be dismissed as irrelevant."

On 21st March 1873 the Sheriff-Substitute (MACKENZIE) repelled the defender's 4th plea, and allowed a proof.

The result of the proof was as follows:The pursuer deponed-"I told the defender I had a pony for sale, and I asked if he would give me £40 for it. He replied that he had no money, and had no use for a pony. I then suggested that I would take hay instead of money for the pony. ... He entertained this offer, and he further undertook to retain the hay for me until I should ask delivery of it. While we

were bargaining about the quantity of hay I was to get, Mr Mackintosh remarked, 'Gentlemen, you know the number of pounds to the stone for which you are dealing?' My reply was-'Of course I do, 24 pounds to the stone.' The defender made no objection, so I understood him to acquiesce. The defender took part in a discussion then started as to the number of pounds in the Ross-shire stone. After this discussion the defender agreed to give me 600 stones of hay and 24 quarters of oats in exchange for the pony."

John Mackintosh deponed-"Before the parties fixed upon the number of stones of hay to be given, I intervened and said, 'I suppose, gentlemen, you know what a stone of hay in Sutherland implies-24 lbs. go to the stone of hay.' The pursuer then remarked, 'Certainly, 24 lbs." I then discussed with the defender the number of pounds of hay which went to the stone in the counties of Caithness and of Ross. . . . The parties after this discussion agreed upon the quantity to be given the pursuer, and fixed it at 600 stone."

The defender deponed--" When the pursuer wanted me to buy his pony I offered him £25 in cash, but he refused this, and said he would not take less than £35. He then said he would take hay or corn, and wanted 700 stones of hay. At this stage the previous witness, John Mackintosh, made the remark, 'You know, gentlemen, what sort of bargain you are making?' to which the pursuer replied, Decidedly I do-24 pounds to the stone.' Mr Mackintosh and

then discussed the number of pounds in the stones of Caithness, Ross, and Inverness. The pursuer and I then agreed that he was to get 600 stones of hay and 24 quarters of oats. There was nothing said between the pursuer and me that these 600 stones of hay were each to be of the weight of 24 lbs."

On 9th May 1893 the Sheriff-Substitute (MACKENZIE) found that the pursuer had failed to instruct (1) that in the bargain between him and defender each stone of hay was to consist of 24 pounds, or (2) that the defender ever undertook to deliver 600 stones of any other than the imperial weight; and found therefore that the defender's offer to deliver 600 pounds of hay imperial weight was in due implement of his bargain, and ordained him to give, and the pursuer to take, delivery of that amount.

The pursuer appealed, and on 5th June the Sheriff (JOHNSTON) pronounced this interlocutor-"Recals the interlocutor of the Sheriff-Substitute appealed against: Finds that on 18th October 1892 the pursuer and defender entered into a verbal bargain of exchange or barter, whereby the pursuer undertook to give his horse, and the defender undertook to deliver in exchange 2 quarters of oats, and 600 stones, each stone to weigh 24 imperial lbs., of hay from a stack on his farm of Drummuie, Golspie: Finds that the defender thereby undertook to deliver 600 times 24 imperial lbs., or 14,400 imperial lbs. of hay, and that said bargain quoad the defender's part was therefore for a multiple of an imperial weight, as ascertained by the Weights and Measures Act 1878: Finds that the pursuer has implemented his part of the bargain by delivery of his horse, but that the defender has failed to implement his part of the bargain by delivering said quantity of hay: Therefore repels the second and fourth pleas-inlaw for the defender: Ordains him to deliver to the pursuer within fourteen days from intimation hereof 600 times 24 or 14,400 imperial lbs. of hay from his stack situated on the farm of Drummuie foresaid, &c.

"Note.-The first question in the case is, what was the contract of parties? I have no doubt that they bargained for a stone of 24 lbs. weight.

"The evidence does not accurately tally, but I take the defender's own version. He says that Mr Mackintosh interposed with You know, gentlemen, what sort of bargain you are making,' and the pursuer replied, Certainly I do; 24 lbs. to the stone.' This, then, on the defender's admission was, from the pursuer's point of view, the preliminary to or basis of a 'bargain.' The defender did not, on his own showing, contradict this, and I believe Mackintosh, when he says 'The pursuer addressed himself to the defender and me, but for the defender's benefit, as I thought, so that there might be no misunderstanding.' The defender cannot, in my opinion, ride off on the idea that he kept silence. There are occasions in which silence imports consent, and I think this was one. If he meant to proceed to a bargain on a different basis, he ought to have contradicted the pursuer.

I will do the defender the justice to say that I do not believe that he contracted at the time for anything but 24 lbs. to the stone, or intentionally kept silence in order that he might have this card up his sleeve to play when necessary. If he did so, he was simply dishonest, and I do not wish to impute such dishonesty to him. I think he has been put up to the idea since.

"I say so because (1) £25 to £27 was the sum the defender offered in cash for the horse; (2) he offered at one time to pay £27, 10s. in lieu of delivery. Both these figures fairly correspond to the value of the hay at a 24 lb., but not a 14 lb. stone; and (3) his letter of 8th February is only intelligible if it means, As I find the horse unsound I won't pay in full of our bargain, but I will take shelter behind the technical

6

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. Cameron

plea which I have learnt that the law enables me to take.' The law may enable him to commit an act of dishonesty. But this letter satisfies me of what was the honesty of the bargain.

"The next question is, does the law make the bargain illegal? This depends upon the 19th section of the Weights and Measures Act 1878. If the bargain had been in so many words by the Sutherland stone,' I should have had no doubt that it would have been struck at by the statute, but when I find that the bargain was truly and expressly for a multiple of imperial lbs., I cannot think that the fact that the parties conventionally term that multiple a stone' is enough to void the contract. They might just as well have said 24 stones of 600 lbs. each, in which case, as no local stone happens to weigh 600 lbs., there would, I imagine, have been no question. I find no authority on the effect of the Act of 1878, but may refer to Alexander v. M'Gregor, June 24, 1845, 7 D. 915, decided under the previous statutes."

The defender appealed, and argued-The evidence did not establish that the bargain was for delivery of 600 "Sutherland" stones of hay at 24 lbs. the stone. But if it did the contract was void under sec. 19 of the Weights and Measures Act, for then it was a sale by the "Sutherland" stone, and local weights were struck at by the ActRobertson v. Gows, June 25, 1858, 20 D. 1170.

The pursuer was not called on.

At advising

In my

LORD PRESIDENT-I think the Sheriff is right. He proceeds on findings in fact which give rise to no difficulty as regards the Weights and Measures Act 1878. He holds that the bargain was that the defender should deliver 600 stones of hay, each stone to weigh 24 imperial lbs. opinion that view is well founded in the evidence. The defender himself says that in the course of the negotiations the witness John Mackintosh said-"You know, gentlemen, what sort of bargain you are making?" to which the pursuer replied'Decidedly I do; 24 lbs. to the stone." It is true that these words were uttered, not by the parties, but by an intermediary; but it is shown conclusively that the statement was consented to by both the parties, and formed not only an integral part of the bargain but the bargain itself. Was the bargain illegal? Nothing was said at all about a local stone forming the basis or standard of the transaction, and in my opinion it was nothing but a sale by an imperial measure, namely, the pound.

66

LORD ADAM, LORD M'LAREN, and LORD KINNEAR Concurred.

The Court adhered.

Counsel for the Pursuer-Dundas-P. J. Blair. Agent-Andrew Urquhart, S.S.C. Counsel for the Defender W. CampbellSalvesen. Agents-Macpherson & Mackay, W.S.

Co-operative

13

[Lord Kyllachy, Ordinary. SYMINGTON'S EXECUTORS v. GALASHIELS CO-OPERATIVE STORE COMPANY, LIMITED.

Provident Society-Jurisdiction-Dispute between Member and Society-Dispute whether Person Entitled to Rights of Member Industrial and Provident Societies Act 1876 (39 and 40 Vict. c. 45), sec. 11, sub.-secs. 6 and 7- Provident Nominations Act 1883 (46 and 47 Vict. c. 47), sec. 3.

By sub-section 6 of section 11 of the Industrial and Provident Societies Act 1876, as amended by section 3 of the Provident Nominations Act 1883, it is provided that if any member of a society, entitled to an interest in the society not exceeding £100, dies intestate, and without having nominated his successor as authorised by that Act, such interest shall be payable without letters of administration among the persons who appear to a majority of the committee, upon such evidence as they may deem satisfactory, to be entitled to receive it. By sub-section 7 it is provided that any such payment shall be valid against any demand made upon the committee or society by any other person.

Section 14 provides that every dispute between a member or person claiming through a member and the society shall be decided in manner directed by the rules of the society.

The rules of a society registered under the above Act provided that in the event of any dispute between a member or person claiming through a member and the society, it should be referred to a committee, from whom an appeal might be made to a general meeting of the society.

A member of this society having died without disposing of her interest therein, her executor-dative sued the society for the alleged amount of that interest. The defenders answered that the committee of the society had paid the sum sued for to one of the deceased member's sons in accordance with directions received from a majority of the nextof-kin, and that such payment was protected from challenge by sub-section 7 of section 11 of the Act of 1876. They further pleaded that the dispute fell to be referred in terms of the society's rules.

Held (1) that the dispute was one for the Court to decide, in respect that the question raised was whether the pursuer had a right to claim as the representative of the deceased member; and (2) that as a majority of the next-ofkin had no right to dispose of the rights of the others, the defenders had

not paid the deceased member's interest to a person " entitled by law" to receive it, and decree granted.

Opinion by Lord Adam, that even assuming that the dispute was to be taken as a question between the society and a member, it fell to be determined by the Court and not by the society, as its solution depended on the construction of the Act of Parliament. Mrs Symington died intestate at Galashiels on June 24, 1892. She was predeceased by her husband, and survived by several children. On 13th May 1893 Robert Symington, a son, obtained confirmation as her executor. Part of the deceased's estate consisted of a sum standing at her credit in the books of the Galashiels Co-operative Store Company, Limited.

This was an action by Robert Symington, as his mother's executor, against the said society for payment of £53, 13s., as the amount due to her by the society.

The defenders admitted that the Society was due the deceased the sum of £19 at the date of her death, but stated-"After Mrs Symington's funeral a meeting of her family was held, at which the pursuer was present. The whole of the other children of the deceased were also present, with the exception of two, one of whom was in New Zealand. . . . At said meeting it was proposed and agreed to by all the members of the family present that the whole sum standing at the credit of and belonging to the deceased in the books of the said Store, should be paid to her youngest son George, for his own exclusive use and behoof, he having contributed more largely than the others to the support of his mother. This arrangement was expressly sanctioned by the pursuer. Thereafter the eldest son of the deceased and the said George Symington came to the Store and explained to the secretary that an agreement had been made amongst the next-of-kin of the deceased whereby the said George Symington was to receive the money standing at his mother's credit in the books of the Store, and requested that it might be paid to him accordingly. The application was submitted to the committee, and as they were satisfied, from the statements made to them, that the said George Symington was entitled to receive the money, they sanctioned payment thereof to him. The money was accordingly paid to him upon 28th June 1892, and his receipt therefor is herewith produced." "The foresaid agreement was communicated to the two absent children, and was approved of by them. The whole of the next-of-kin of the deceased with the exception of the pursuer have now no desire to disturb the family arrangement above narrated."

The pursuer, while denying that any such arrangement had been made as the defender averred, also pleaded that the defence was irrelevant.

The defenders pleaded-"(1) No jurisdiction. (5) The sum at the credit of the deceased in the books of the said Store having been properly paid by the defenders to the person who appeared to them to be