the 23rd- [His Lordship read the letter].

I have gone over these letters in detail, because they appear to me to contain the kernel of the whole matter, and I do not think that any correspondence which took place afterwards between the agents of the pursuer and Martin, or any parole evidence can affect the position established by them in any way. I think they make it plain—

1. That the pursuer was willing to work on the Scottish Leader after it was sold by the defender, and so relieve the defender to the extent to which he might be remunerated by the new proprietors, provided he was made secure in writing that he did not lose the benefit of his agreement with the defender if his new work failed to yield him the same emolument absolutely or partially.

2. That the pursuer made it plain to the defender that without written agreement he would hold to his rights under the agreement already existing.

3. That the defender intentionally declined to notice the pursuer's stipulations, and endeavoured to make out that Martin had taken over the pursuer, and suggested to the pursuer to make any bargain he liked with Martin.

4. That he intentionally declined to say anything which would admit that he was still bound by his contract, or to give a consent to a new arrangement so as to protect the pursuer from an after repudiation, on the allegation of an alteration in the pursuer's legal position, should occasion arise for the pursuer demanding that the defender should make good any loss which might follow the change.

5. That the defender so acted in the hope and belief that the pursuer would be persuaded to act without consent or guarantee and that he might thus escape from his liability.

Matters so remained during a protracted correspondence between the pursuer's agent and Mr Martin's agent, but when at last the former believed that what his client insisted upon was to be admitted by the defender, Martin declined to allow the pursuer to enter the premises of the newspaper, or to do any duty in connection with it. To that the pursuer had to submit, for he was not under any contract with Mr Martin, and could not claim anything against him.

In these circumstances I concur with the Lord Ordinary in holding that there was here breach of agreement. Indeed, as I before stated, it was practically admitted at the debate that there was a technical breach of agreement. The pursuer was engaged by the defender for a term. The defender has not fulfilled the engagement. But the defender's counsel, Mr Comrie Thomson, argued that for that non-fulfilment the damages should only be nominal. I am unable to see how that should be so. The pursuer was of course not entitled to sit idle and make no effort to obtain suitable employment. He must fairly and reasonably exert himself to earn his living, and can only come against the defender for the loss he sustains from inability to secure a

position as good as that which was agreed upon with the defender. The Lord Ordinary thinks that he has not been in default in this, and I am of the same opinion. He has obtained a situation bringing him a substantial salary in his own line of life, although not such a high salary as he was entitled to by the agreement in question. But taking that into full consideration, the Lord Ordinary has come to the conclusion that his loss has amounted to £800. I see no reason to hold that his Lordship's verdict on the damages is in any way excessive, and indeed the amount was not seriously impugned by the defender if it should be held that the pursuer was entitled to more than nominal damages.

I would therefore move your Lordships to adhere to his interlocutor.

LORD YOUNG - This is an action of damages for breach of contract, the contract being one in writing between the proprietor of a newspaper and the pursuer that the latter should act as manager of the newspaper for a period of five years, and it is very necessary to have regard to the nature of that contract. It is not a mercantile contract, but a contract between the proprietor of a paper-who might be a lady living in London or Paris or anywhere else - and a gentleman to act as manager for a period of five years. Within the five years the proprietor of the paper, who contracted with the pursuer, found it expedient to sell the paper, and he sold it accordingly to Mr Martin, who had been editor of it, but with an agreement between him and Martin that the latter should take over the staff and fulfil all M'Farlane's obligations to all the members of the staff including the pursuer, the manager. It seems to be thought by the pursuer-and this is indeed the foundation of the action-that by selling the paper to Martin, although with a stipulation that the buyer should take over the staff of the paper, a breach of contract with the pursuer was committed. I am clearly of opinion that that was no breach of contract. It was no part of the contract with the pursuer, expressed or implied, that Mr M'Farlane should continue to be the proprietor of the paper for five years and that he should not sell it. He might have ceased to be proprietor of the paper by death. He did not contract to live for five years. If he had died and the paper passed to his heirs, would there have been any breach of contract there? I am of opinion that there would not, and that there was just as little in the present case. The defender acted with perfect propriety in arranging with the new proprietor that he should take over the pursuer as manager under the contract with him. I have said nothing hitherto to imply anything to the effect that Mr M'Farlane did not remain bound to see that the contract with the pursuer was implemented. My opinion is that the contract would be completely performed by a new proprietor just as much as it would be performed by the old proprietor continuing the pursuer

v. M'Farlane

in the position of manager and requiring him to perform no duties except those which fell within the true meaning and import of the contract, and paying him his salary according to its terms. I am of opinion upon the evidence that Mr Martin did take over the pursuer as manager of the paper, and did agree to satisfy the whole of his rights under the contract. There is nothing in the evidence to show that the pursuer was ever required to do anything which was not within his duty as manager under the terms of the contract, or further, that the payments due to him under the contract for his services were ever withheld to the extent of a sixpence. I cannot therefore hold that there was here any breach of contract.

I do not care very much to refer to the letters, which I think are quite unnecessarily numerous, and some of them unnecessarily long, and not expressed with that distinctness which in a business correspondence would have been desirable, but I am satisfied upon the evidence that the pursuer's real grievance was being put under Mr Martin as his master. He preferred Mr M'Farlane. That was what touched and irritated him, but I can give no effect to that irritation. Ithink it sufficiently proved that the untenable nature of the position of objecting to being put under a new proprietor occurred very strongly to the pursuer, because he said in his evidence that he was willing to act as manager under Mr Martin, but that he desired only an assurance that he would be paid. Mr M'Farlane said-and I believe him thoroughly-that if that assurance had been asked he would have given it, but his position was that he was under obligation to see the contract fulfilled, and he did not require to express his obligation in writing to make it effectual against him. His agent expressed it in writing, but it would have been as binding had he not done so.

Mr M'Farlane was under that obligation, and if the pursuer had gone on to perform his duties under Mr Martinnot being asked, as he never was asked, to do anything that was not incumbent upon him, and being paid his salary-there would have been no necessity for any recourse against Mr M'Farlane. I am therefore of opinion that the defender should be assoilzied.

his rights under the existing contract, it might be that there would be no breach of contract, or if the sale was a breach the damages might be merely nominal.

It cannot be doubted that the pursuer had a material interest to see that the defender was not discharged. Mr Martin had no means. He bought the newspaper with borrowed money. Nor so far as we can see had the pursuer any guarantee from the success of the undertaking. It seems to have been disastrous to all concerned.

As I understood the argument, the case was presented by both parties on this issue, Did the defender give or withhold the necessary consent? The defender was bound to give it if he was to plead that the arrangement with Mr Martin was a due fulfilment of his contract, or that the pursuer's claim was reduced to nominal damages. For it was essential that the pursuer's claims against the defender should be preserved, and if he entered into the employment of Mr Martin without the pursuer's consent the defender would have been liberated. At least there would have been a risk of that result, and the pursuer was not bound to run any risk. Nor do I think that I am stating any proposition which the defender disputes. He professes that he was all along ready to give the requisite consent, and that in fact he gave it.

From the first the pursuer took up a distinct position. He would not enter into a contract with Mr Martin without the consent of the defender. On the other hand he was willing to become the manager for Mr Martin if that consent was given. He may have been annoyed that he should be placed under one who had been formerly his subordinate, and who proposed to conduct the newspaper in a manner of which he did not approve. But he did not betray his feelings. Mr Martin himself says that up to the time when the pursuer left the office "the relations between me and the pursuer were entirely harmonious and cordial."

Mr Martin on his part was desirous that the pursuer should continue to act as manager, but on the condition that he entered into his employment. In his letter of 16th September Mr Falconer, as Mr Martin's agent, asked for a definite reply to the question "whether Mr Ross is or is not willing to carry out the agreement with Mr Martin." In a question with Mr Martin the pursuer could expect nothing more. He could not be continued in his office on any other footing than as the servant of the owner of the newspaper. He refused the offer because he could not obtain the defender's consent. He was definitely dismissed by Mr Falconer's letter of 1st October, inasmuch as he had declined "the employment offered to him by Mr Martin on the footing expressed in my letters." The pursuer could do nothing but submit. He had no contract with Mr Martin.

If the defender desired to fulfil his agreement with the pursuer, or to escape with nominal damages on the theory that he was in breach of it, he was, as I have said, bound to give his consent to the pursuer's

acceptance of Mr Martin's offer. I go further. I think that he was bound to make it perfectly clear that he was not in any way relieved of his contract; for it was by his act that the position of the pursuer was altered. He was, I think, bound to give the pursuer a full assurance that he would not be injured nor incur risk of injury thereby. Nor can I imagine why anyone who was willing to fulfil his agreement should have any hesitation in giving such an assurance. The strange thing in this case is that the defender maintains that he was always willing to give his consent, and yet that the negotiations between the pursuer and Mr Martin proved abortive for the want of it. I think that the defender was not willing to give his consent, and that it was the refusal of that consent which caused the dismissal of the pursuer. To my mind this is quite clear from the correspondence between the pursuer and defender. I quote only three passages. By a letter dated 12th September the pursuer very distinctly defined his position. He said-[His Lordship read the passage quoted by the Lord Ordinary]. On 23rd September the pursuer again wrote to say--[His Lordship read the passage quoted by the Lord Ordinary]. The defender's answer on the 23rd was-[His Lordship read the passage quoted by the Lord Ordinary].

I am

The defender is asked for his consent. His answer is that the pursuer may make the agreement without it. The pursuer did not require or desire any such information. I can put no other construction on his letter than that the defender refused to give his consent. I have stated what I conceive to have been his duty in this respect. satisfied that his duty was not discharged. He gave the pursuer no assurance that he would not suffer prejudice by entering into an agreement with Mr Martin without his consent, and his conduct forces on my mind the belief that he was trying to induce the pursuer to transact with Mr Martin on that footing, with a clear perception of the benefit which would thence arise to himself.

But it is said by the defender that a full consent was given by the letter of Mr Robson dated 1st September 1892. I do not think so, nor did the defender. If he had been of that mind he would have had no hesitation in giving his consent when the pursuer asked for it. He would be doing nothing more than repeating an act of which he had previously approved. But Mr Robson does not deal with the subject. He merely points out three things-(1st) That the defender could not be liberated from the agreement without the pursuer's consent; (2nd) that such a consent had not been asked; and (3rd) that Mr Martin had taken overall the engagements with the staff. He says nothing about the defender's consent nor of the necessity of that consent to preserve the rights of the pursuer. Probably he was under no duty to enter on any such matter. I cannot, however, read his letter as meaning that the pursuer might contract with Mr Martin without forfeiting his claims against the defender.

But the just construction of the letter is really a matter of no moment, for the defender refused to act up to the interpretation which he now puts upon it.

A copy of the letter had been forwarded to the defender. He says "Your reply is admirable." It seems to me a very ordinary letter unless it had a meaning which is not apparent on the surface. I think that the defender believed that it might throw the pursuer off his guard and lead him to accept, without the defender's consent, the employment which Mr Martin was likely to offer.

After the pursuer's dismissal by Mr Martin, Mr Robson wrote a letter to Mr Prosser, the agent for the pursuer, on 5th October. It is a remarkable letter, and I think it right to quote from it-[His Lordship read the passaye quoted by the Lord Ordinary].

How Mr Robson thought that he had expressed in the first letter what he expresses in the second I cannot comprehend. But his letter had no practical effect, for Mr Martin refused to recede from the position which he took up on the 1st October, and the pursuer's dismissal remained a fact. It is not, however, without importance. If it expresses the true sentiments of the defender, they were strangely concealed. The defender did not act in conformity with them. He was repeatedly asked to give his consent and as often he refused or failed to give it. I am surprised to think that the defender, who wrote the letter of 23rd September, can pretend that Mr Robson's letter is an accurate expression of what he was willing to do. I am persuaded that it did not become an accurate expres sion until he knew that the pursuer had been definitely dismissed.

I am of opinion that the defender has not implemented his agreement. If the sale was not a breach he was bound to enable the pursuer to enter Mr Martin's employment without sacrificing or prejudicing his rights under the agreement. In no other way could he implement his contract. If the sale amounted to a breach he was equally bound to follow the same course if he was to escape with nominal damages.

LORD TRAYNER-I concur in the opinion of Lord Rutherfurd Clark.

The Court adhered.

Counsel for the Pursuer-Dickson-Salvesen-Crabb Watt. Agents-Boyd, Jameson, & Kelly, W.S.

Counsel for the Defender-Comrie Thomson-Guthrie. Agents-Millar, Robson, & M'Lean, W.S.

The head cook in a hotel raised an action of damages for slander against the hotel proprietor. She averred that on her asking the defender for the assistance promised her by him at the commencement of her engagement, he got into a violent temper, ordered her to leave the house at once, repeatedly accused her in the presence and hearing of certain fellow servants of being drunk and in consequence unfit for her work, and several times cried out in a loud voice to her in a public part of the hotel "You are drunk and must go at once,' or used words of like import. She further averred that these statements were false, malicious, and calumnious, and without probable cause, and injurious to her feelings, character, and reputation; that the defender made the slanderous accusation recklessly and without taking any trouble to ascertain whether or not it was true, and well knowing that there was no foundation for it, and that he was angry with the pursuer for asking for further assistance and simply made this accusation to browbeat her.

Held (rev. Lord Kincairney, who had allowed an issue averring malice, and diss. Lord Rutherfurd Clark) that the action was irrelevant.

Jessie Macdonald raised an action of damages for slander against J. Fritz Rupprecht, proprietor of the North British Station Hotel, Glasgow.

The pursuer averred-"(Cond. 2) On the 31st July 1893 the pursuer, in response to a request contained in a letter addressed to her on behalf of defender, went to Glasgow and had an interview with the defender, at which he engaged her to act as head cook in his hotel at a salary of £1, 1s. per week. One of the conditions on which pursuer accepted the engagement was that she should have the same staff of assistants as the defender employed at the time of her engagement. (Cond. 3) On Tuesday, 1st August, the pursuer commenced her duties as head cook in the defender's hotel, and continued to act in that capacity without complaint on the part of the defender till Thursday, 10th August. The pursuer during this period repeatedly complained to the defender that she had not been furnished with the assistance he had promised her, and that it was impossible to conduct the work of such a large hotel without a larger staff. (Cond. 4) On the evening of Thursday, 10th August, in or near the said North British Station Hotel, the pursuer again requested the defender to procure further assistance, and stated that other

wise she feared she would require to give up her situation. Thereupon the defender got into a violent temper and ordered pursuer to leave the house at once. He further then and there repeatedly accused her in the presence and hearing of Mary M'Mahon, Jessie M'Lean, Catherine Fisher, and Margaret M'Nab, her fellow-servants, now or lately in the defender's service, of being drunk and in consequence unfit for her work. The defender several times cried out in a loud voice to pursuer in a public part of the hotel, 'You are drunk, and must go at once,' or used words of like import and effect, meaning that the pursuer was guilty of the debasing practice of drunkenness, and that she was on account of being drunk unfit to perform her duties in the said hotel. The pursuer on being ordered by defender (who is a man of very violent temper) to leave the hotel had no other alternative but to obey.... (Cond. 5) The said statements made by the defender concerning the pursuer are false, malicious, and calumnious, and without probable cause, and are injurious to the pursuer in her feelings, character, and reputation. In particular, they are calculated to be and are injurious to the character and position of the pursuer in the practice of her vocation, and to cause her loss, injury, and damage, besides wounding her feelings. The defender made the said slanderous accusation recklessly, and without taking any trouble to ascertain whether or not it was true, and well knowing that there was no foundation for it. He was angry with the pursuer for desiring further assistance, and he simply made this accusation to browbeat her. (Cond. 6) The pursuer has suffered great loss, injury, and damage not only in her feelings but also in her character and reputation in consequence of the defender's treatment, and the false and calumnious charges he has made against her, and the defender is liable in reparation, solatium, and damages therefor."

The defender lodged defences in which he averred, inter alia-"On the occasion referred to when the pursuer left her situation, she comported herself in a violent and disrespectful manner towards the defender. She followed after him in the hotel, shouting and calling names, and was insolent and insulting in her behaviour and language. Any statement made to her by the defender had reference to her conduct at the time and was privileged. He spoke on the spur of the moment and under provocation, but he said nothing defamatory or intended to be defamatory of or concerning the pursuer."

The defender pleaded, inter alia—“(1) The pursuer's statements are irrelevant and in sufficient to support the conclusions of the summons."

By interlocutor dated 14th November 1893 the Lord Ordinary (KINCAIRNEY) approved of the following issue for the trial of the cause:-" Whether on or about 10th August 1893, in or near the North British Station Hotel, George Square, Glasgow, and in the presence and hearing of Mary M'Mahon, Jessie M'Lean, Catherine

Fisher, and Margaret M‘Nab, now or lately the defender's servants, or one or other of them, the defender did falsely and calumniously and maliciously say of and concerning the pursuer, 'You are drunk,' or used words of like import and effect, to the loss, injury, and damage of pursuer. Damages £170.

Against this interlocutor the defender reclaimed, and the pursuer moved the Court to vary the terms of the issue by deleting the words “and maliciously."

Argued for the defender-The action was irrelevant. The words were not seriously meant; they were merely thrown out by the defender in rixa during a squabble between him and the pursuer. They were therefore not a proper subject for an action -Shand v. Finnie, Feb. 10, 1802, Hume's Decisions, 612; Cusine v. Begbie, December 10, 1803, Hume's Decisions, 622. The words themselves in the circumstances of the case were not actionable. Opinion of Lord President Hope in Friend v. Skelton, March 2, 1835, 27 S.J. 237. Even if the accusation was held to be seriously made, and the words were held to be actionable, it was a statement made to a servant by a master and therefore was privileged, and malice must be both averred and proved. No special malice was averred, and therefore no issue should be allowed.

Argued for the pursuer-The words of the defender were actionable, since they had hurt the feelings and reputation of the pursuer. To charge the head cook in the presence of others with being drunk was an actionable accusation, and it was for the jury to judge whether or not the accusation was slanderous-Balfour v. Wallace, July 14, 1853, 15 D. 913; Craig v. Jex Blake, July 7, 1871, 9 Macph, 973; Rankine v. Roberts, Nov 26, 1873, 1 R. 225; Farquhar v. Neish, March 19, 1890, 17 R. 716. The statement was not privileged, and malice should not be inserted in the issue. No doubt the statement was made by a master to a servant, but it had been spoken before other servants and shouted out several times in a public place -Milne v. Smith, November 23, 1892, 20 R. 95; Ingram v. Russell, June 8, 1893, 20 R. 771, opinion of Lord President Inglis p. 776; Douglas v. Main, June 13, 1893, 20 R. 793. Tendency of modern decisions was to leave the question of privilege open till the trial of the cause.

At advising

LORD YOUNG-This is an action by a cook against her employer for damages for defamation. Now, it appears from the pursuer's statements on record that some sort of contention arose between the cook and her master, that they both lost their temper, and that upon that occasion he said to her "You are drunk, you must go at once." The action is not upon "go at once" but on "you are drunk," and the pursuer has added on record the explanation-a very candid one-that the defender made the accusation "you are drunk "without taking any trouble to ascertain whether or not it was true. He was angry with the pursuer

for asking for further assistance, and he simply made the accusation in order to browbeat her, and the question is, whether that is a relevant statement to support an action of defamation. I am of opinion that it is not. If a cook gets into a squabble with her master upon the question of requiring further assistance in the kitchen, and they both lose their temper, and the master in order to browbeat the servant, says to her "you are drunk," I do not think that constitutes a case of defamation which is an actionable case. I am therefore of of opinion that the action should be dismissed.

LORD RUTHERFORD CLARK-Looking at the averments made by the pursuer on record, I think this case is a very extraor dinary one, but notwithstanding these averments I personally would be inclined to allow the pursuer an issue.

LORD TRAYNER-I think the pursuer's case is irrelevant. The words used by the defender of which the pursuer complains were uttered by him, according to the pursuer's averment, while he was in a violent temper, and were uttered not for the purpose of making an accusation against the pursuer, but simply "to browbeat her." The animus injuriandi therefore which lies at the root of such cases as the present is negatived by the pursuer's own averment.

LORD JUSTICE-CLERK-I have come to the conclusion to agree with the majority of your Lordships.

The Court recalled the Lord Ordinary's interlocutor, and dismissed the action as irrelevant.

Counsel for the Pursuer - Wilson-W. Thomson. Agent - Edward P. Thomson, W.S.

Counsel for the Defender-Young-Glegg. Agents--Morton, Smart, & Macdonald, W.S.

Friday, January 19.

FIRST DIVISION.

INSPECTOR OF GALASHIELS . INSPECTOR OF MELROSE AND THE BOUNDARY COMMISSIONERS.

Boundary Commissioners Transferred Area-Relief of Paupers-Competency of Order-Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50), sec. 50.

By order which came into force 11th June 1891 the Boundary Commissioners transferred a portion of the parish of M. to the parish of G.

In an action by G. against M. the Court of Session decided that M. continued to be liable for the relief of paupers who had acquired a settlement by birth or residence there before the date of the Commissioners' order.

M. and G. having failed to make an