Scottish Court of Session Decisions

Angus Macleod, merchant, Norwood, Dullatur, brought an action of damages for slander against Thomas A. Marshall, Craigard, Dullatur, John Steele Wyllie, merchant, Richmond House, Dullatur, John Wylie and James A. Wylie, both sons of and residing with the said John Steele Wylie.

The pursuer averred that upon Saturday

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17th May 1890 he entered the grounds of the Dullatur Tennis Club on the invitation of Mr Thomas Dow, the secretary of the said club, and seated himself beside Mr John Gourlay, and that on the occasion in question, instead of engaging in the game which he had come to play, the said Thomas A. Marshall, when he saw the pursuer, came and sat down on the seat which he was occupying, but on the other side of Mr Gourlay, and in the presence and hearing of the said John Gourlay, commenced to address the pursuer thus, ‘Macleod, are you a member here? To which the pursuer made no reply. He (Marshall) then repeated,’ I say, Macleod, are you a member here; because if not, you have no right to be here, and you had better get out.’ To this also pursuer made no reply. The said Thomas A. Marshall then said, addressing the pursuer, ‘This is no place for questionable characters like you.’ That the pursuer subsequently went to a seat at the opposite side of the ground, to which he was shortly afterwards followed by the said Thomas A. Marshall, who wantonly and unprovokedly continued to address him in the most violent language, flourishing at the same time both his racquet and his fist in the pursuer's face, and in the presence and hearing of John Risk, distiller, residing at Dullatur, Robert Knox Risk, residing at Bankier, Castlecary, Donald Macleod Malloch, residing at The Glen, Elderslie, and the said Thomas Dow, and others, the said Thomas A. Marshall falsely, calumniously, maliciously, and without probable cause called the pursuer a ‘swindler,’ a ‘liar,’ a ‘thief,’ a ‘blackguard,’ and other terms of the like nature, such as a ‘low scoundrel,’ and a ‘poltroon.’ That when the pursuer was leaving the grounds with Mr Dow the said Thomas A. Marshall stopped his play, and turning to Mr Dow, requested him, referring to the pursuer, for the future not to bring such ‘questionable characters’ on to the courts. That after a meeting of the committee of the Dullatur Tennis Club had been duly called for the evening of Tuesday, 20th May 1890, to consider the conduct of the said Thomas A. Marshall on the occasion above described, they, the defenders, concocted a joint letter in the following terms—‘ Craigard, Dullatur Dumbartonshire, 19 th May 1890.—Dear Sir—You are aware that for good reasons Mr Angus Macleod's presence at any general gathering of the inhabitants of Dullatur must be irksome to many of those present. We would therefore request that you, as secretary of the Dullatur Tennis Club, will take such measures as will prevent his being a second time introduced to the courts. The first clause of rule 8 can be limited, we presume, in its application. Your personal opinion, frequently strongly expressed, of Mr Macleod's doings and character, will, we feel sure, make you desirous to do what is necessary to secure all the members of the club in the enjoyment of their rights, without their being subjected to Mr Macleod's presence in the courts. Yours faithfully, Thomas A. Marshall; J. S. Wylie; John Wylie; James A. Wylie.” The said letter was signed by the whole defenders, and was delivered by one of their number, or someone on their behalf, to the said Thomas Dow, as secretary of the said club, on the evening of said 19th May 1890, and was read to the Committee of said club at their meeting of 20th May 1890. That at the meeting of the committee of the said club, held on the evening of the said 20th May 1890, there were present the defender John Steele Wylie, the president of the club, and who occupied the chair at said meeting, the said John Stewart Dymock, William Montgomerie junior, secretary of the Broxburn Oil Company, Thomas Parker, insurance manager, Glasgow, and the said John Risk and Thomas Dow, the secretary of the club. At the said meeting of committee, when in the course of the discussion as to the course to be pursued, the said John Steele Wylie was asked by one of the members (Mr William Montgomerie) a question in the following or similar terms—‘Suppose, Mr Wylie, that I am a member of the Western Club in Glasgow, and that I introduce a friend there, and that you, Mr Wylie, being also a member, come into the club, and seeing my friend there, begin grossly to insult him within the club premises, would you not be at once expelled?’ the said John Steele Wylie replied—‘Oh, but if you bring in a knave you are responsible for the consequences,’ or in words to that effect. That the defender Marshall wrote on 29th May 1890 to John S. Dymock, a member of said committee, the following letter—‘ 29th May 1890.—Dear Sir—Your letter of the 26th was received last night on my arrival here after two nights' absence. I opened it this morning on ascertaining from you that the D on envelope was your initial, and not that of the other D of Dullatur. Since my talk with you this morning it has occurred to me that part of the object you and Messrs Parker and Montgomerie may have in calling for me may be to explain the steps your club propose to take to prevent a recurrence of the offensive introduction of MacLeod senior to the tennis courts, in reply to my own and the Messrs Wylies' requisition of the 19th inst. to that effect. If so, I shall be glad to receive you at your convenience, If, however, any part of your object is to refer to my action in publickly characterising his conduct as such as rendered his presence an offence to all honourable men, I warn you that I will look on such reference as a gross impertinence, and will know how to fitly resent it. Apologising for the delay in replying to your letter, I am, yours truly, Thomas A. Marshall. John S. Dymock, Esq.’—which letter was laid before said committee at their meeting of 5th June 1890.”

The defender Marshall admitted that upon 17th May 1890, in the Dullatur Tennis Grounds, after remonstrance with Mr Dow, he crossed “said tennis ground to the place where the pursuer was seated, and endeavoured to induce him to leave, and explained that the defender did so because the pursuer was, and knew himself to be,

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personally objectionable to the defender and other members of said club. The pursuer, however, did not withdraw, and defender then stated as the ground of his request that the pursuer had taken advantage of his former intimacy with the defender to feather his own nest at defender's expense; that he had made false statements to the defender with regard to the Val d'Elsa Copper Company (in which pursuer was interested as a promoter and vendor) to induce the defender to subscribe to the capital of said company; that his conduct was little removed from thieving; and that in the circumstances his intrusion into said Tennis Club grounds was cowardly. Explained and averred that the remarks to the defender were made to and in the hearing of the defender alone.” He further stated that “during the summer of 1887 the pursuer, who had been acquainted with the defender for about two years, and travelled almost daily with him from Dullatur to Glasgow, had frequent conversations with the defender as to the exceptionally favourable opportunities for investment afforded by copper mine securities, and he informed the defender that he possessed very special advantages in respect of information with reference to such securities owing to his having friends in the London market. About the month of October following the pursuer approached the defender with the information which he professed to give to the defender confidentially, and from motives of friendship, that a company was going to be formed to work certain Italian copper lodes of a most valuable character in the Val d'Elsa, that only the earliest applicants would have a chance of allotment, and that the shares on allotment would be at 20s. premium. The pursuer did not then tell the defender, nor was the defender aware that the pursuer was interested in the Val d'Elsa mines, and in reliance upon the business knowledge, friendly professions, and the truthfulness of the pursuer's statements of the value of said copper, the defender was induced to give him the sum of £50 to secure on his behalf an interest in the concern although the prospectus was not yet issued. After some delay, in the month of January 1888 the pursuer showed the defender a prospectus of the Val d'Elsa Copper Company, which he said was the company he had referred to in the previous October. In said prospectus the Val d'Elsa mines were represented as a most valuable property, and the pursuer at that meeting assured the defender that not only had the promoters taken care not to exaggerate the value of the claim in said prospectus, but that he could vouch from personal inspection to its great value. These statements with reference to the value of said mines, as well as those to the same effect made in October preceding, were to the knowledge of the pursuer false. The pursuer and the Messrs Colquhoun were, as vendors of the concessions to the Val d'Elsa Company, to receive from the company the sum of £35,000, and the object of the pursuer, it is believed and averred, in making the false statements set forth was that said company should be successfully floated, and he consequently should become entitled to his share of said £35,000. On 31st January 1888 the pursuer further stated that the run by the public upon the shares had been so great that it would be necessary for the defender to take more shares in order to make sure of an allotment, and in reliance upon the truthfulness and accuracy of this, along with the other representations of the pursuer, the defender was induced to give a further sum of £6, 5s. to the pursuer in consideration of the deposit upon 25 additional shares of said company. So far from the allegation of the pursuer as to the number of applications being true, it is the fact that only 25,000 of the 60,000 shares offered to the public were applied for, and the pursuer and other promoters—that is to say, the vendors — consequently applied for 15,000 additional shares in order that the company might proceed to an allotment, when they would become entitled to said sum of £35,000.”

The pursuer pleaded, inter alia—“(5) The statements in defence for the defender Marshall are impertinent and irrelevant, and ought not to be remitted to probation.”

The defender Marshall pleaded—“(1) The defender not having slandered the pursuer, should be assoilzied. (2) The statements made by the defender to the pursuer as set forth in the defender's answers are in substance true, and in the circumstances were justified. (3) In the whole circumstances the defender should be assoilzied.”

The defenders Wylie pleaded, inter alia—“(3) These defenders not having slandered the pursuer as alleged, they should be assoilzied. (4) Anything said or written by these defenders as to the matters alleged was privileged and without malice.”

The following issues were proposed by the pursuer—“(1) Whether, on or about Saturday 17th May 1890, in or near the ground of the Dullatur Tennis Club, Dullatur, in presence and hearing of John Risk, residing at Dullatur; Robert Knox Risk, residing at Bankier, Castle Cary; Donald Macleod Malloch, residing at the Glen, Elderslie; and Thomas Dow, residing at Dullatur, or one or more of them, the defender Thomas A. Marshall did falsely and calumniously say that the pursuer was a ‘swindler,’ a ‘liar,’ a ‘thief,’ a ‘blackguard,’ a ‘low scoundrel,’ or did falsely and calumniously use or utter one or more of the said expressions with reference to the pursuer, or words to the same effect, to the loss, injury, and damage of the pursuer? Damages laid at £300. (2) Whether, date and place foresaid, in presence and hearing of John Gourlay, residing at Dullatur, the said John Risk, Robert Knox Risk, Donald Macleod Malloch, Thomas Dow, and of John Stewart Dymock, timber merchant in Glasgow, or one or more of them, the defender Thomas A. Marshall did falsely and calumniously say, addressing the pursuer, ‘This is no place for questionable characters like you,’ and did also request the said Thomas Dow for the future not to

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bring such ‘questionable characters’ on to the said ground, or did use or utter words to the like effect, referring thereby to the pursuer, and falsely and calumniously representing that the pursuer was a person of such bad character as not to be fit to associate with honourable men, to the loss, injury, and damage of the pursuer? Damages laid at £300. (3) Whether, on or about 19th May 1890, the defenders Thomas A. Marshall, John Steele Wylie, John Wylie, and James A. Wylie wrote or caused to be written and signed a letter in the terms set forth in Schedule 1' [the first letter quoted above] ‘hereunto annexed, and delivered, or caused to be delivered, the same to the said Thomas Dow, secretary of the said Dullatur Tennis Club; and did, on or about 20th May 1890, at Dullatur, cause the same to be read in presence and hearing of the said John Stewart Dymock, William Montgomerie junior, residing at Dullatur, Thomas Parker, residing at Dullatur, the said John Risk, and the said Thomas Dow, or in the presence and hearing of one or more of them; and whether the said letter was of and concerning the pursuer, and falsely, calumniously, and maliciously represented that he was a person of such bad character as not to be fit to associate with honourable men, to the loss, injury, and damage of the pursuer? Damages laid at £1000. (4) Whether, time and place foresaid, and in presence and hearing foresaid, the defender John Steele Wylie, in answer to a question put to him by the said William Montgomerie in the following or similar terms—‘Suppose, Mr Wylie, that I am a member of the Western Club in Glasgow, and that I introduce a friend there, and that you, Mr Wylie, being also a member, come into the club, and seeing my friend there, begin grossly to insult him within the club premises, would you not be at once expelled?’ said—‘Oh, but if you bring in a knave you are responsible for the consequences,’ or did use or utter words to that effect, referring thereby to the pursuer, and falsely, calumniously, and maliciously representing that the pursuer was a knave, to the loss, injury, and damage of the pursuer? Damages laid at £1000. (5) Whether, on or about 29th May 1890, the defender Thomas A. Marshall wrote or caused to be written, and sent or caused to be sent, to the said John S. Dymock a letter in the terms set forth in Schedule 2 “[the second letter quoted above]” hereunto annexed; and whether said letter, or any part thereof, was of and concerning the pursuer, and falsely and calumniously represented that the pursuer was a person of such bad character that he was not fit to associate with honourable men, to the loss, injury, and damage of the pursuer? Damages laid at £300.”

The following counter issue was proposed by the defender Marshall—“Whether the pursuer, in or about October 1887 and January 1888, made false and fraudulent representations to the defender regarding the value of certain mineral concessions in the Val D'Elsa, Italy, and thus induced the defender to contribute to the capital of the Val D'Elsa Copper Company, in the promotion of which the pursuer was pecuniarily interested as vendor?”