Scottish Court of Session Decisions

In February 1891 Annie Fraser, New Street, Rothes, with the consent and concurrence of her father, James Fraser, as her curator and administrator-in-law, raised an action for defamation of character against the Reverend Donald Cameron, Free Church minister of Rothes. The pursuer was nineteen years of age and unmarried, and resided with her father. They both belonged to Mr Cameron's congregation. The alleged defamation was contained in a letter written by Mr Cameron to James Fraser in compliance with the latter's repeated and urgent requests to supply him with the details of a fama, to answer to which Annie Fraser had been cited to appear before the kirk-session. The letter had been submitted by Mr Cameron to the kirk-session and approved of by them. In the letter Mr Cameron informed James Fraser that it was currently reported that the intimacy (not meaning thereby carnal connection) between Annie Fraser and Alexander Simpson, a married man and a member of the congregation,

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was of such a nature as to be matter of public scandal, that he (Mr Cameron) had in his possession written evidence on the subject from a respectable person, whose word he had no reason to doubt, and that Alexander Simpson had confessed that the fama was well founded.

On 28th November 1891 the Sheriff ( ) recalled the interlocutor of the Sheriff-Substitute in the said action, and after certain findings in fact “finds that the pursuer has also failed to prove that the defender acted maliciously and without probable cause in what he did as above mentioned, or in making the statements referred to in the above findings; finds that the statements so made by the defender were true, and that he acted throughout solely in the discharge of his duty as minister of the congregation and moderator of the kirk-session; therefore to the above extent and effect sustains the defences: assoilzies the defender and decerns: finds the pursuer and her father, James Fraser, her curator and administrator-in-law, liable, conjunctly and severally, to the defender in expenses: further, having considered the Auditor's report on the account of the defender's expenses, approves thereof, and decerns against the pursuer and the said James Fraser, her curator and administrator-in-law, conjunctly and severally, for payment to the defender of the sum of £100, 14s. 6d. sterling, being the amount of the said account as taxed.” The note appended to the Sheriff's interlocutor contained the following passage—“The pursuer's father, though not a pursuer in this action, has not only as her curator and administrator-in-law, but personally, taken a prominent and leading part in it, and the Sheriff has accordingly found him liable personally in expenses as well as the pursuer.”

The Sheriff's decree was extracted by Mr Cameron, and on 4th January James Fraser and his daughter Annie Fraser were charged to make payment of the sum decerned for against them conjunctly and severally.

Thereafter James Fraser presented a note of suspension and interdict against Mr Cameron, praying the Court to suspend the said decree and charge in so far as they were directed against the complainer as an individual, and to interdict the respondent, so far as the complainer as an individual was concerned, from enforcing them.

The complainer pleaded—“(1) It was ultra vires of the Sheriff to pronounce any decree against the complainer as an individual in respect of him having acted in the cause as curator and administrator-at-law of his said daughter, and the charge, in so far as it seeks to enforce payment of the foresaid decrees against the complainer as an individual, should be suspended.”

On 20th February 1892 the Lord Ordinary on the Bills ( Low) in respect the complainer did not offer caution refused the note.

The complainer reclaimed—When the case was called in the Inner House the parties agreed that it should be argued and decided as if the note had been passed for the trial of the cause.

Argued for the complainer—The Sheriff should not have found him liable in expenses as an individual. His daughter was a minor and not incapax. He had only consented as her curator to the action of defamation being brought, and there was no allegation that he had acted maliciously. He had no personal interest in the action and he would have received no pecuniary benefit if his daughter had been awarded damages. If he had declined to appear as his daughter's curator, the Court would have had to appoint a curator ad litem to his daughter, and it was settled law that a curator ad litem was not personally liable for expenses. He was in the same position as a curator bonis or a judicial factor, and neither of these are personally liable in the expenses of action conducted on behalf of their wards— Forbes v. Morrison, June 10, 1845, 7 D. 853; Ferguson v. Murray, December 20, 1853, 16 D. 260. And in an action against a woman and her husband for his interest, the husband was held not liable for the expense of the defences lodged on behalf of his wife, and himself as curator for his wife, except in so far as the defences were malicious, vexatious, or calumnious— Baillie v. Chalmers, April 6, 1791, 3 Pat. App. 213.

Counsel for the respondent were not called on.

At advising—