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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Torrance v Leaf, &c. [1835] CA 13_1146 (29 July 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1146.html Cite as: [1835] CA 13_1146 |
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Page: 1146↓
Subject_Reparation—Privileged Slander—Proof.—
1. In an action by a bankrupt against a creditor and his agent for writing and circulating statements relative to the bankruptcy, alleged to be defamatory, amongst his other creditors—held, that malice was essential to be proved; and verdict for the defenders. 2. Excerpts from the books of a witness having been put in evidence, Question whether it be competent to ask the witness on cross-examination as to an entry in the books of which no extract had been made, but which entry was connected with the subject-matter of the excerpts in evidence? After argument given up.
This was an action of damages at the instance of Torrance, a merchant in Glasgow, against Leaf, Coles, Son, and Company, merchants in London, and James Turnbull, accountant in Glasgow, for slander contained in certain letters written by the defenders, or with their concurrence, and circulated among the creditors of the pursuer. The defence was that Leaf and Company, being creditors of the pursuer, were entitled,
In the preparation of the cause a question arose whether malice must be averred in the issues, when the Court held in the affirmative, on the ground that this was a privileged case of slander. *
The following issues went to trial:—
“1. Whether, on or about the 16th day of February, 1832, the defenders, Leaf, Coles, and Company, did write and transmit, or cause to be written and transmitted, to the other defender, James Turnbull, accountant in Glasgow, a letter containing the following words, or words to the following effect, according to the meaning hereinafter set forth, viz. ‘We consider the conduct of Torrance’ (meaning the pursuer) ‘has been so exceedingly bad’ (meaning thereby so bad and dishonest as a trader) ‘that the creditors cannot with propriety come to any settlement short of sequestration. We think him a very proper person to be made an example of’ (meaning thereby an example of as a fraudulent insolvent), ‘and we do not see any other mode of punishing him than by making him a bankrupt, and keeping him without his certificate’ (meaning thereby that he was a fit object for, and deserving of punishment as a fraudulent insolvent). ‘From all that we have heard of this transaction, we are of opinion that you have not been well used, and in justice to your professional character, we feel ourselves called upon to state that your proceedings in this affair of Torrance have our decided approbation, and, acting upon the general instructions we have always given you in matters of insolvency in Glasgow and the neighbourhood, we think that on our account alone, you were perfectly justified in taking the prompt steps you did; for it is quite clear that if Torrance's system of selling his goods by auction’—(meaning thereby that the pursuer had been guilty of dishonest and fraudulent practices as a trader)—‘had not been effectually stopped, a very small portion of the property would have been left for the creditors:’ And whether, on or about 26th day of March, 1832, the defender, James Turnbull, acting under the direction or authority of the said Leaf, Coles, and Company, did write and transmit, or cause to be written and transmitted, to all or any of the creditors of the pursuer, a copy or copies of all or any part of the said letter, containing all or any of the words aforesaid, according to the meaning herein before set forth; and whether the whole or any part of the said words are of and concerning the pursuer, and are false, malicious, and calumnious, and to the injury and damage of the pursuer?
“2. Whether, on or about the 26th day of March, 1832, the defender,
_________________ Footnote _________________ * See ante, p. 72.
“3. Whether, on or about the 30th day of March, 1832, the defenders, Leaf, Coles, and Company, did write and transmit, or cause to be written and transmitted, to Messrs Henry Brooke and Sons of Hudders-field, a letter containing the following words, or words to the following effect, according to the meaning hereinafter set forth, viz, ‘Gentlemen,—We are favoured with your letter, dated the 27th instant, and we are exceedingly sorry we cannot comply with your request of acceding to the proposed composition offered by William Torrance of Glasgow. In this, as in all cases of insolvency, we are guided entirely by the conduct of the party; and we presume you are not fully acquainted with the circumstances which occurred before the failure, or we think you would not willingly allow Torrance to escape punishment’—(meaning thereby the punishment merited by a fraudulent insolvent or bankrupt). ‘In the month of October last he came to London for the purpose of purchasing goods. He bought nearly £500 of us, and also to a considerable extent of two or three other houses here, and immediately upon his arrival in Glasgow he sent a large portion of these goods to the auction mart, and disposed of them at any prices they would fetch’—(meaning thereby that he had been guilty of dishonest and fraudulent practices as a trader). ‘From an investigation of his affairs, it is pretty certain that, at the time he purchased these goods, he not only was well aware that he was insolvent, but that he never could pay for them. The system of soiling goods by public auction appears to be gaining ground very much in Scotland, and we are determined, whenever we make a bad debt with a man who is guilty of such a practice’—(meaning thereby a dishonest or fraudulent practice, which they imputed to the pursuer)—‘we will make an example of him’—(meaning thereby that the pursuer was a fit object for making an example of as a fraudulent trader)—‘which can only be done effectually by making a bankrupt of him, and keeping him without his certificate. In pursuing this course with Torrance, we consider that we are only doing justice to ourselves, and protecting the interest of our numerous customers in Glasgow, who mean to pay us twenty shillings in the pound. Looking at this case alone, we may perhaps lose a few pence in the pound, but we feel compelled to take a more extensive view, and to act upon a principle which will have the effect of deterring such characters as Torrance’—(meaning thereby that the pursuer was a bad character as a trader, in respect of his dishonest and fraudulent practices)
“4. Whether, on or about the 30th day of March, or on or about the 3d day of April, 1832, the said Leaf, Coles, and Company, defenders, did write and transmit, or cause to be written and transmitted, to the defender, James Turnbull, and to Edward Railton, agent in Glasgow, or either of them, a copy or copies of all, or any part of the letter last aforesaid, dated 30th March, 1832, containing all or any of the words aforesaid, according to the meaning herein before set forth; and whether the whole, or any part of the words so written and transmitted, or any part thereof, are of and concerning the pursuer, and are false, malicious, and calumnious, and to the injury and damage of the pursuer?
“5. Whether, on or about the 7th April, 1832, the said defender, James Turnbull, did write and transmit, or cause to be written and transmitted, to all or any of the creditors of the pursuer, a copy or copies of all or any part of the letter aforesaid, dated 30th March, 1832, containing all or any of the words aforesaid, according to the meaning herein before set forth; and whether the whole, or any part of the words so written and transmitted, or any part thereof, are of and concerning the pursuer, and are false, malicious, and calumnious, and to the injury and damage of the pursuer?
“Damages laid at £1000.”
Excerpts from the books of a witness having been put in evidence, by which it appeared that certain entries were made to the debit of the pursuer, the witness was asked, upon his examination in cross, to whose debit the entries had been at first made?
Dean of Faculty, for the Pursuer, objected, that the excerpts were taken under commission, and it is incompetent, by verbal queries, to get at matter in the original books, in reference to which no excerpts have been made.
After some argument, the question was given up.
It appeared, inter alia, from the pursuer's evidence (the defender having adduced no evidence), that the pursuer had been bankrupt, that Leaf and Company were creditors, and Turnbull was their agent in Glasgow; that the pursuer had been recently in the practice of sending parcels of goods to be sold by auction, which had never been mixed with his proper stock, and as to the transmission and sale of which there were no entries in his books, but that the goods were not sold “at any prices they would fetch,” as part of them, when going below their value, had been bought in by the pursuer; that a committee of creditors, of which
In regard to the first part of these several issues, it is admitted and proved, that the letters were written by Leaf and Company, and that they were sent and so issued, as averred by the pursuers. The question for the jury is not simply, whether the averments contained in them were “false,” and “calumnious,” and “to the injury and damage of the pursuer,” but, specially, whether they were “malicious.” The defenders do not undertake to prove, by a distinct issue, that the averments are true. Under these issues, they could not be allowed to prove it. The reason is in the nature of the case, and the issues as settled by the Court upon full argument. The defenders say, that this is a privileged case; that, in whatever they did, they were in the exercise of a right, of the discharge of a duty; and that, as on this assumption they are not answerable for it, unless it he proved that they acted from malice, they are not called upon to go into the absolute question of the truth of their statements.
The jury will have to consider the nature of the things asserted in the letters, in connexion with the circumstances proved, in order to say whether the statements were made on reasonable or probable grounds, or were made maliciously. To explain the distinction. In the ordinary case of an action of damages, if Leaf and Company, without being in any of the particular circumstances which here occur, had simply circulated in Glasgow such statements as those in the issues, and had not undertaken to prove the veritas or truth of their averments, the law would have inferred malice from the falsehood of the statement and its calumnious nature. But it is different with privileged cases such as this. There are various degrees of privilege. There is, for instance, a privilege of Parliament, which will protect what is spoken in Parliament from being made the subject of an action of damages at all. In another class of cases, where a party being in the discharge of a right, or duty, as a counsel at the bar, makes injurious statements, which turn out not to be true, such person, or even the party instructing him for his own interest, cannnot be made liable in a court of law, unless the pursuer aver malice.
[His Lordship then referred to the charges of the Lord Chief Commissioner in Maclean v. Fraser, May 19, 1823, Murray, III. p. 355, and in Forteath Williamson v. Lord Fife, Murray, II. p. 470, as containing the law on this subject.]
The question, whether a case is privileged or not, is a question not for the jury, but for the Court—as clearly expressed by Lord Pitmilly, in the case of Hamilton v. Hope (ante, V. 587). In the present case, this has already been determined by the Court; and therefore it is a case, as the issues show, in which malice is the foundation of the action.
But where malice is the foundation of such an action, you must be satisfied that the statements libelled on are not only false, but malicious; and the effect of this, legally, is, that in the present case malice is not to be presumed from an assumption of error or falsehood, but must he proved to your satisfaction as a substantive fact. You must be convinced that the letters were written and circulated maliciously, for the purpose of injuring the pursuer, and for no other purpose. Then the question arises, what is the proper evidence of malice? This seems to be well stated in the charge of the Lord Chief Commissioner in the second trial of Hamilton v. Hope, May 21, 1827 (Mur. IV. 244).
“The law on this subject is, that, in the ordinary case, where a person has no right to speak of another, and uses defamatory slanderous words, unless the truth is proved, law holds the statement false, and if false, it also holds the motive malicious; but if a public or private duty is to be performed, and the person is thus called on to speak of another, law converts the malice into a fact to be concluded on by the jury.
“Here the first question is, what is the nature of the evidence by which a jury is to be satisfied? and, second, what does law hold to be malice?
“On the first, it is not necessary that there should be proof of extrinsic facts to induce you to conclude that it was malicious; it is sufficient if you are satisfied of it from the nature of the words, and the concomitant circumstances. This is quite sufficient, without any previous declarations of malice or rooted enmity. Malice here does not mean a fixed rooted state of resentment by the one party against the other, but that state of mind which leads the party to act, not from a view of duty, but of injury. This motive may have existed privately; but the question is, whether, at the time the words were uttered, they were used with a mind to injure, or in performance of a duty? And it is by your conclusion from the facts and circumstances as to the malice that a verdict is to be given for the pursuer or defender; it is not to rest on a conclusion of law from the falsehood?”—[His Lordship then went into a detail of the evidence.]
It appears that Leaf and Company were creditors of the pursuer, who was a bankrupt; and the question is, were the letters written bona fide with reference to rights with which as creditors they were vested, or from malicious motives, and independent of matters of which these parties had a right to speak. They were undoubtedly entitled to refuse the proposal of a composition, and to take out a sequestration if they thought proper, and they cannot be liable in damages, or be said to have been actuated by malice because they availed themselves of this legal right, however much others might differ from them. Malice must be proved as a substantive fact, and not taken as a mere inference from the words, or their tendency to do injury, or from the assumed error or falsehood of them. In point of law and reason, no malice can be inferred merely by showing that the other creditors thought it right to accede to an extrajudicial composition while Leaf and Company took a different view. Turnbull was written to by Leaf and Company in the character of their private agent: the letters were addressed to parties interested in the sequestration, and circulated by him with the authority of Leaf and Company after they had been called upon from various quarters to say whether they would accede to the composition. The Court have held them to be entitled to take this course, unless it be proved that they did so from malice. Then the question is, what evidence is there here of malice? At the bottom of the matter, it is clear that a real cause of suspicion and complaint existed,
In regard to the sum claimed as damages, if you should find for the pursuer, £1000 is much too extravagant a demand. We have too much the practice of laying in our summonses large sums of damages. It is the duty of a jury in such cases, while on the one hand they look to the injury done, on the other hand to be temperate in the damages they award, and not make the defender suffer beyond a reasonable measure. The claim which is made in the summons is no rule for you.
The Jury found for the defenders on all the issues.
Solicitors: Campbell and M'Dowall, S.S.C.—Agents.