v.

9

unable to support the children in question, that while they were in his custody he did not in fact attend to their support and education, and that it is not for the interests of the children that they should be returned to him. The girl is no longer in pupillarity, and has already, in connection with Mr and Mrs Brown's proposal, stated her preference for remaining in the Homes. The respondent does not at present, and never did, contemplate emigrating the children to Canada. The respondent therefore submits that unless the interests of the children require it, there is no occasion for interfering with the arrangements made on their behalf. Further, he submits that the present petitioner, one of the brothers of the children in question, has no title to present the present application, and in any case he is, in the circumstances narrated, now barred from SO doing. Lastly, the respondent believes and avers that the true dominus litis in this application is not the petitioner, but the Society of St Vincent de Paul, which should be sisted as a party to this application accordingly."

Argued for the petitioner-Mr Quarrier had no right to retain the custody of the children against the wishes of the petitioner, who was their natural guardian. The mere fact that they were at present with him gave Mr Quarrier no right whatever to their custody. They should be brought up in the form of religion in which they had been baptised, and which was that of their father - Brand v. Shaws, December 22, 1888, 16 R. 315.

-

Argued for the respondent - The petitioner as their brother had no right to the custody of these children, or to prescribe the form of religion in which they were to be brought up. The sole consideration for the Court was the wellbeing of the children -Sutherland v. Taylor, December 22, 1887, 15 R. 224; Markey v. Colston, July 14, 1888, 15 R. 921; Smith v. Smith's Trustees, December 13, 1890, 18 R. 241; Flannigan, June 21, 1892, 19 R. 909; Mackenzie v. Keillor, July 6, 1892, 19 R. 963. There was no suggestion that the children were not being well cared for in Mr Quarrier's homes. The question of religion aloneand that was the only question here-had nothing to do with the matter. That was recognised in the English Courts in the case of M'Grath, L.R. 1892, 2 Ch. 496, and L.R. 1893, 1 Ch. 143, where it was said that the Court judicially administering the law could not hold one religion better than another, and that only a father had any right to dictate the form of religion in which his children were to be brought up. The girl being over ten years of age was entitled to choose her own place of residence. If the Court had any difficulty in refusing the petition at this stage a curator ad litem might be appointed to inquire fully into all the surrounding circumstances, ascertain additional facts, and report. This was done in the case of Flannigan, supra.

At advising

LORD ADAM-This is a petition presented by James Morrison to have restored to him the custody of two children, twins, a boy and a girl who are just over twelve years of age, the girl therefore beyond the years of pupillarity while the boy is not. The position of matters, as I understand it, is this. The petitioner is their eldest brother who since the death of their father has taken care of them. He has no legal right to any control over them, but he has very properly brought them up, and when he could no longer do so he handed them over to Mr Quarrier, who keeps homes for children who are not otherwise provided for. These children were left with him by their brother in the month of February. I cannot say that I altogether like the form which Mr Quarrier requires those who leave children with him to sign-[His Lordship read the form given above]. By that form it might be supposed that absolute power was given to Mr Quarrier to do with the children as he chose. However that may be, the petitioner, by whom these children were left with Mr Quarrier, now sees reason for changing his mind, and wishes to remove them. What he says in this petition is that the children, as the children of Roman Catholic parents, were baptised into that faith, and that he has made arrangements for having them educated and brought up in a Roman Catholic institution or retained under the care of a relative. He also says that the children wish to be removed and restored to his care. Now, that statement ought to have been much more specific, for we are furnished with no information as to Mrs Brown, the relative who is said to be willing to take them, or as to the Roman Catholic institution to which it is proposed to send them.

The question now before us and with which we have to deal is, what are we to order with regard to the custody of these children? As to the title of the brother to present this petition I have no doubt. He is their nearest male relative and has a perfectly good title to present it. But I am equally clear that he has no legal right of control over the children or right to demand their custody.

It is

Our duty is to do what will be best for the children in the circumstances, and that is the view on which I propose to deal with this petition. Of Mr Quarrier's Homes I know nothing, of Mrs Brown I know nothing, of the Roman Catholic Institution referred to I know nothing. in these circumstances that I have to deal with this petition, and I think our first duty is to inform ourselves of all the circumstances surrounding the case, and the course I think we should follow is that which was adopted in the case of Flannigan. I am of opinion that we should appoint some person to be curator ad litem to these children, and to inform us in the interests of these wards what he deems advisable, and what are the whole facts of the case. The mere fact that these children are found at this moment in Mr Quarrier's Homes does not give him any right to bring them up. Taking into account the wishes of their brother and of

their family on the one hand, and of Mr Quarrier on the other, I should in the ordinary case be inclined to give weight to those of their own family. It is also desirable if possible that their own wishes should be known. But as to their wishes I know nothing. The children are of an age to have wishes, and on the one side it is said they wish to return to their brother, while on the other side the very opposite is alleged. How are we to decide? I do not say we are to yield to the children's own wishes if they do not seem really to be for their best interests, but we should know them, and in the whole circumstances I propose that we appoint a curator ad litem.

LORD M'LAREN-Under ordinary circumstances I should not have thought it necessary to make a formal dissent from the course proposed by your Lordship in the chair, as the appointment of a curator ad litem leaves the merits of the case open for subsequent consideration. But there seems to me to be au important point of principle involved here, and as I am of opinion that no relevant statement has been made justifying the interference of the Court, I think it would not be fair if I were to withhold my opinion that this petition should be dismissed de plano.

This Court does not possess any general right of supervision or any duty with regard to the upbringing and education of all the poor children in the country. It is only when application is made to us on proper grounds that we can and ought to interfere. It is in fact necessary that a prima facie case for our interference should be made out. Now, without looking at the answers, although we commonly do look at the answers to such a petition as this, especially where they are not contradicted, I am perfectly clear in my own mind that the present petitioner has no right to the claim which he makes for the custody of these children and their removal from Mr Quarrier's Homes. If he had said that they were being ill-used there, the matter would have been quite different, and however impecunious the petitioner may be himself, and unable to bring them up in his own house, I should have thought there was a case for inquiry, because we might order their removal to the poorhouse. If again a petitioner came forward as a relative-and I do not know that a brother or a sister is in a worse position for presenting such a petition than an uncle or other near relative would be-and offered to maintain them in his own house, I should be most favourable to granting such an application. Here however we have nothing of that sort. The petitioner alleges nothing against these Homes, and cannot offer these children a home himself, but he wishes their removal from where they are well cared for to some unknown institution merely because it is Roman Catholic and these Homes are not. No other reason is given for their removal than that the petitioner is himself a Roman Catholic, and the children have hitherto been brought up as Roman Catholics but are now in a Protestant institution. I do

v. Quarrier

9,

not think we should entertain the doctrine for a moment that a brother is entitled to have his brothers or sisters removed from an institution because he does not approve of the form of religion there taught. I agree with the observations made in the High Court of Justice on this subject, to which we were referred, that as between a charity and a relative willing to maintain the child, or as between one relative and another, the opinions of the parents or of the family may be an element, but the religious element alone should not be allowed to determine the question. Here we have nothing but the religious element, and that is not in my opinion a good ground for our interfering except when it is put forward by a parent. I have no knowledge of Mr Quarrier's Homes, but that is not necessary, because nothing is here said against them.

My opinion is that we should dismiss this petition as irrelevant, and that it is unnecessary to take the steps of appointing a curator.

LORD KINNEAR-I agree with your Lordship in the chair that in order to enable the Court to determine whether these children should be left where they are, or removed, a curator should be appointed. I agree with your Lordship and with Lord M'Laren that the statements of the petitioner are vague and indefinite, but there are statements made upon which I am not prepared to throw out the petition without further inquiry. The petitioner, although not the tutor-at-law of these children, is their natural guardian in a popular sense, for he is their brother and aged thirty-six, while they are only children of twelve. It was the duty of their brother to look after them, and he says he did so, and that in course of doing so he handed them over to Mr Quarrier, from whom he now wishes them back. The petitioner is not entitled to demand the custody of these children as a matter of right, but Mr Quarrier has just as little right to it. The petitioner says, "I made a mistake in handing over these children, and I wish them restored to me." He says he wishes them removed from Mr Quarrier because they are not being educated in the faith in which they were brought up by their father until he died, and because, as he avers, the children themselves wish to be removed. These are the only two specific grounds he gives, but I think they justify inquiry, especially the last one. Other things being equal, I think weight should be given to the wishes of the children themselves. Both grounds may reasonably be taken into consideration, although neither may be conclusive of the question if strong reasons can be shown the other way. The petitioner says he has made arrangements for their being taken into a Roman Catholic institution or into the house of a relative. I agree with Lord M'Laren that his statements on this matter are very vague, but I think they are sufficient to lead us to appoint a curator. It will be his duty to ascertain for himself and to report to us all the facts necessary

Waddell v. Roxburgh," June 8, 1894.

for the determining of this question. We do not know the facts, and until we know them cannot exercise the discretion which we are called upon to exercise.

The LORD PRESIDENT was absent.

The Court appointed Mr B. P. Lee, advocate, curator ad litem to the children, and continued the cause.

Counsel for Petitioner-Young-Gunn. Agent-John Mackay, S.S.C.

Counsel for Respondent-Ure - Clyde. Agents-Dove & Lockhart, S.S.C.

Friday, June 8.

FIRST DIVISION.

[Lord Kincairney, Ordinary. WADDELL v. ROXBURGH. Reparation-Slander - Issue - Innuendo -Taking Unfair Advantage to Secure Contract-Verbal Injury.

A newspaper, commenting on the manner in which a contract for printing the register of voters of a burgh had been secured, said "This contract was secured by the lowest offerer in a mean and contemptible manner. We attach no blame to any of the burgh officials, but to the unfair advantage taken by the successful offerer to secure the contract."

The party who had secured the contract brought an action against the publisher of the newspaper, averring that the meaning of the statement was that he had obtained the contract by dishonest and improper means, and further, that the statement had been made with the design and the result of injuring him.

The Court held that the pursuer was not entitled to an issue of verbal injury, but allowed an issue of slander.

Observations on the case of Paterson v. Welch, May 31, 1893, 20 R. 744. This was an action of damages at the instance of John Waddell, printer and publisher in Alloa, against Andrew Roxburgh, printer, publisher, and editor of The Alloa Weekly News and District Reporter.

The pursuer averred that in November 1893 the Tillicoultry Burgh Commissioners invited tenders for the printing of the register of voters for that burgh for a period of five years. The pursuer's tender was the lowest and was accepted. some time previously the defender had borne a groundless ill-will against the pursuer.

For

This he had shown in several instances (which were specified)-"(Cond. 4) In his said newspaper, The Alloa Weekly News and District Reporter of Wednesday 20th December 1893, the defender inserted an article headed 'Burgh Commissioners,' and in a note to that article he stated'This contract was secured by the lowest offerer in a mean and contemptible

VOL. XXXI.

manner. We attach no blame to any of the burgh officials, but to the unfair advantage taken by the successful offerer to secure the contract.-ED.'-meaning thereby that the pursuer had obtained the said contract by dishonest or fraudulent and improper means. The statements and representations contained in said note were made and published by the defender falsely and maliciously to gratify his spite and ill-will against the pursuer, and with the special design and object of injuring the pursuer in his trade as well as in his feelings and reputation, and of exposing him to public contempt. (Cond. 5) The pursuer was the lowest and successful offerer in the contract above referred to, and the said statements by the defender are of and concerning the pursuer, and are false, malicious, and slanderous. The statements referred to have been read by a large number of people in and around the district where the pursuer carries on his profession, and among others by his constituents and friends, with the result reputation as well as in his trade and business as a printer and publisher."

The defender pleaded—“(1) No relevant

case."

The pursuer proposed the following alternative issues for trial of the cause--" (1) Whether the said statement was of and concerning the pursuer, and falsely and calumniously represented that the pursuer had obtained the said contract by dishonest and improper means, to the loss, injury, and damage of the pursuer. Whether the said statement was of and concerning the pursuer, and whether the said statement was false, and was made and published by the defender with the design of injuring the pursuer, to his loss, injury, and damage?"

(2)

On 13th March 1894 the Lord Ordinary (KINCAIRNEY) disallowed the issues and assoilzied the defender.

“Opinion.—This is an action of damages for defamation by the printer and publisher of an Alloa newspaper against the printer, publisher, and editor of another newspaper, also published in Alloa. The words complained of published in the defender's newspaper are these-This contract was secured by the lowest offerer in a mean and contemptible manner. We attach no blame to any of the burgh officials, but to the unfair advantage taken by the successful offerer to secure the contract.' The contract referred to was a contract for printing the register of voters for Tillicoultry, and the paragraph is said to refer to the pursuer. Two alternative issues have been tabled by the pursuer, the one appropriate to an action for slander, the other to an action for verbal injury.

"The first issue is, whether the paragraph referred to represented that the pursuer had obtained the contract by dishonest and improper means. The question debated was, whether the paragraph complained of could reasonably be innuendoed as involving a charge of dishonesty. I have answered that question in the negative, although not

NO. XLVI.

without hesitation. The case is presented as a mere question of construction of the paragraph, and no circumstances are averred as colouring the paragraph, or as suggesting that the words meant more than their ordinary construction conveys. The idea of dishonesty involves some kind of fraud or falsehood perpetrated by misrepresentation, or concealment, or some sort of circumvention; but it is not suggested that the paragraph pointed at any thing of that kind, and therefore it does not appear to me that according to its reasonable construction it can be held to involve a charge of dishonesty. The words 'unfair advantage,' read in connection with what precedes, seem to suggest some undue advantage taken by the pursuer which might be characterised as mean and contemptible, but not as fraudulent or dishonest.

"It was not maintained that the words, although objectionable and insulting, were defamatory without the innuendo.

"The alternative issue was proposed to meet the event of the paragraph being held not to be defamatory, and was said to be warranted by the recent case of Paterson v. Welch, May 31, 1893, 20 R. 744. The model of the issue in that case has not been followed exactly in the present case, but there would have been no difficulty in altering this issue so as to bring it into conformity with the issue in Paterson v. Welch. But I have disallowed the issue on other grounds, because I do not think that this is a case to which the judgment in the case of Paterson v. Welch applies, unless it applies to every false statement of which it is averred that it was made with a design to injure. I think that it cannot be reasonably suggested that the words complained of were used with any design to injure the pursuer or to expose him to public hatred and contempt."

The pursuer reclaimed, and arguedThe statement complained of had been made, according to the pursuer's allegation, out of ill-will, with design to injure, and with the result of inflicting injury. The pursuer was in these circumstances entitled to an issue of verbal injury on the authority of Paterson v. Welch, May 31, 1893, 20 R. 744. It was proposed to alter the second issue to bring it into conformity with the issue allowed in that case. If not entitled to the second issue, the pursuer was entitled to the first, for the defender's words could reasonably be innuendoed as imputing dishonesty to the pursuer.

Argued for the defender-No dishonesty was imputed, but at the most dishonourable conduct. The innuendo was therefore unfair, and the statement was not slanderous-Archer v. Ritchie, March 19, 1891, 18 R. 719; Turnbull v. Oliver, November 21, 1891, 19 R. 154.

The defender was not called upon to answer the pursuer's argument that an issue of verbal injury should be allowed.

At advising

LORD ADAM The Lord Ordinary has

refused the first issue proposed by the pursuer, but he says that he has done so with hesitation, and Lord Kinnear observed in the course of the hearing that that in itself was enough to show that there was a question which ought to go to a jury. I agree with that observation. In an action of slander the question of slander or no slander, libel or no libel, is always in the first instance a question for the jury. Accordingly, if it is not quite clear that by no reasonable interpretation of this language could it be affirmed that there was a libel, we are not entitled to refuse to send the case to a jury. Here the averment of the pursuer just comes to this, that the defender said of him that he-the pursuer-took advantage of other persons in a mean and contemptible and unfair manner. If the innuendo which the pursuer puts upon the words in question were sent to a jury, and they found for the pursuer, Mr Orr admitted that the defender could not ask for a new trial. That seems to me a conclusive test of the matter. I cannot say that the jury might not by reasonable construction of the words put the interpretation proposed upon them. I therefore think that the first issue must be allowed.

LORD M'LAREN-It was pointed out from the bar, and is well recognised in practice, that a different and stricter standard of construction is to be applied to calumnious expressions affecting a person in his business relations from that applied to expressions used of the same person in his public capacity. We have discouraged actions of damages directed against public men for language used by them, whether in the more important field of general politics or in regard to the administration of municipal affairs, or even of charitable societies. No doubt language used of a public man may be libellous, as, for instance, if one were to accuse a member of parliament of having obtained his seat by bribery, but such accusations are rarely made, and, as has been often observed, there is practically no limit to the language that may be used in public controversy, except that which is imposed by good taste and good feeling towards an opponent.

In the present case the kind of unfairness attributed to the pursuer is not specified, but point is given to the expression by reference to a particular contract, and that, I think, is sufficient to justify the innuendo that the kind of unfairness meant was dishonesty.

I agree accordingly that the first issue should be allowed.

the same opinion, that if he is not entitled to the first issue he cannot possibly obtain the second. It appears to me that the case of Paterson v. Welch has been somewhat misunderstood. It was not intended by the Court in that case to lay down that whenever the words of which a pursuer complains are not in themselves slanderous, he may have an issue whether they exposed him to public hatred and contempt. I understand that the opinion of the Lord President in that case proceeded on this, that the words which the pursuer in that action was said to have used of a class of persons, were not slanderous of that class, but that nevertheless, to impute to the pursuer that he had used these words was an actionable wrong, because he undertook to show that they had been ascribed to him by the defender with the design of injuring him, and that he had in fact thereby been exposed to the public hatred and contempt. There

were specific allegations of the special damage which had arisen to the pursuer from the words in question having been ascribed to him. I have no doubt that the form of issue adopted in that case was better calculated to bring the question fairly before the jury than the ordinary form of issue. Therefore I see no reason for dissenting from the judgment. It may be that to confine the use of the word slander to cases where the language complained of is obviously and on the face of it defamatory and injurious would be convenient, but I should rather have thought that all actionable words which are either injurious to the character or the credit of the person of whom they are spoken, or which expose the person with reference to whom they are uttered to public hatred and contempt, are defamatory or slanderous words. But however that may be, I am of opinion that if the language of which the pursuer complains is calculated to expose him to public hatred and contempt, then it is slanderous language. If it is not calculated to expose him to public hatred or contempt, or to do him any injury-if when properly construed it does not assail his character or creditthen it is not slanderous or actionable at all. I have no doubt that the pursuer must have an issue of slander in ordinary form or no issue at all.

LORD M'LAREN-I desire to express my concurrence with what has been said by Lord Kinnear as to the case of Paterson v. Welch. I thought the case a narrow one at the time, and it certainly was not intended to give such an extension to the form of issue there allowed as is now claimed,

LORD ADAM—I was one of the Judges in the case of Paterson v. Welch, and I concur in the obesrvations made by Lord Kinnear upon it.

The Court disallowed the second issue and appointed the first issue proposed by the pursuer to be the issue for the trial of the cause.

Counsel for the Pursuer-Comrie Thomson Deas. Agent Andrew Newlands,

S.S.C.

Counsel for the Defender-Orr. Agents -George Inglis & Orr, S.S.C.

Saturday, June 9.

SECOND DIVISION.

[Lord Kyllachy, Ordinary. PETERS v. MAGISTRATES OF

GREENOCK.

(Ante, vol. xxix. p. 507, and vol. xxx. p. 937.) Church-Stipend-" Competent and Legal

Stipend"-Arrears-Interest-Mora.

The minister of the Mid-Parish of Greenock raised an action in 1891 against the magistrates of the burgh to have them ordained to pay him a competent and legal stipend, and for payment of certain arrears, upon the footing that from Whitsunday 1880 until Martinmas 1890 his stipend ought to have been £320 per annum, and from the latter date £400 per annum. Since 1880 he had protested against the stipend which the magistrates offered him, and since 1884, owing to his refusal to give unqualified receipts, he had received no payment. House of Lords, affirming the decision of the Second Division, held that the magistrates were bound to pay the pursuer a "competent and legal stipend." The case came up again on the interpretation of the expression "competent and legal" for the purpose of the petitory conclusions of the sum mons, and for settling the question of arrears claimed by the pursuer.

The

Held (1) that £400 per annum was now a "competent and legal stipend" for such a parish as Mid-Greenock, and that £320 per annum had been so for the period between 1880 and 1890; (2) that the pursuer was entitled to the arrears of stipend which had not been paid by the defenders since the date they had been found liable to pay him a "competent and legal stipend;” (3) that in respect of his delay in raising the action, the pursuer was entitled only to 2 per cent. interest on these

arrears.

This case is reported ante, March 16, 1892, 29 S.L.R. 507, and May 18, 1893, 30 S.L.R. 937 (H. of L.)

In 1891 the Rev. David Smith Peters, minister since 1877 of the New or MidParish, Greenock, raised an action against the Provost, Magistrates, and Town Council of the burgh of Greenock, to have it found and declared that the pursuer, as the minister serving the cure of the New or Mid-Parish Church and district thereof within the burgh of Greenock, was and is entitled to be furnished and provided by the defenders, and that the defenders were