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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Falconer v. Docherty [1893] ScotLR 30_688 (6 June 1893) URL: http://www.bailii.org/scot/cases/ScotCS/1893/30SLR0688.html Cite as: [1893] ScotLR 30_688, [1893] SLR 30_688 |
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Page: 688↓
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Held (1) that, looking to an article complained of as a whole, to say of a trustee, “He gives the money, it is supposed, but whether he dispenses the whole of it or not is not known, as he has never proposed to publish a statement of how it is employed”—might bear the innuendo that “he is not a trustworthy trustee and administrator of a charitable bequest, … and is a person capable of appropriating the funds of the bequest to his own uses and purposes;” and (2) that a charge of partiality is not of itself actionable.
The following letter appeared in the Caithness Courier and Weekly Advertiser for the Northern Counties upon 18th November 1892:—“ Advice Wanted.
To the Editor of the Caithness Courier.
Sir,—Here is a case which came under my notice. A certain clergyman has a fund, the proceeds of a charitable bequest, left for the poor of the parish. He gives the money, it is supposed, but whether he dispenses the whole of it or not is not known, as he has never proposed to publish a statement of how it is employed. A poor woman whose husband was unwell, and the family in great destitution, called on the minister, and wanted a portion of the money to buy a little meal for to keep them living. The minister refused, because, he said, her husband did not attend the church. She replied that she did not think that the money was to be given to any one because he attended any particular church, but to the poor of the parish. ‘Oh, but,’ replied the reverend, ‘your husband was in the public-house bar, and he spoke disrespectfully of me there.’ ‘But, sir,’ she answered, ‘don't you go to the bar yourself?’ Minister—‘Yes, but I don't go there to drink.’ Woman (looking up at his rubicund face)—‘I'm no so sure o’ that, sir.’ She got none of the money. What should the woman do in such a case? Apply to the session, you say. But if he has no session, what then? My advice is for the woman to take two with her, and call on the Reverend Mr Falconer, and ask him what she should do to get a share of the money left for the benefit of such as she. It would be interesting to hear what steps he advised her to take.— A Friend of The Poor.”
Upon 16th January 1893 the Rev. W. J. S. Falconer, minister of the parish of Dunnet in Caithness, brought an action of damages for slander against William Docherty, High Street, Thurso, and against William Docherty junior, 9 Hill Square, Edinburgh, as being the printer, publisher, and the proprietor respectively of said newspaper.
Page: 689↓
He averred that he was ex officio trustee, and at present practically sole trustee, of a bequest left for the poor of his parish, and that the letter was directed against him.
A single issue with damages laid at £1000 was approved by the Lord Ordinary, but upon the defenders reclaiming to the First Division, the pursuer moved to be allowed to substitute the following four issues, viz.—“(1) Whether, in the issue of The Caithness Courier and Weekly Advertiser for the Northern Counties, dated on or about 18th November 1892, the defenders, or either and which of them, printed and published the letter printed in the schedule hereto appended? (2) Whether the said letter is of and concerning the pursuer, and falsely and calumniously represents that he is not a trustworthy trustee and administrator of a charitable bequest instituted for behoof of the poor of his parish, and is a person capable of appropriating the funds of the said bequest to his own uses and purposes, or makes similar false and calumnious representations of and concerning the pursuer, to his loss, injury, and damage? Damages laid at £300. (3) Whether the said letter is of and concerning the pursuer, and falsely and calumniously represents that he has acted partially and corruptly in the administration of said charity, or makes a similar false and calumnious representation of and concerning the pursuer, to his loss, injury, and damage? Damages laid at £300. (4) Whether the said letter is of and concerning the pursuer, and falsely and calumniously represents that he is guilty of conduct unbecoming a minister of the Gospel, inasmuch as he frequents the bar of a public-house for the purpose of obtaining intoxicating liquors, or makes similar false and calumnious representations of and concerning the pursuer, to his loss injury, and damage? Damages laid at £400.”
The defenders argued (1) that the complaint that no accounts had been published could not bear the innuendo sought to be put upon it in the second issue; (2) that a charge of partiality was not a charge against a person's moral character, but merely a charge of showing a preference; and (3) that the words “unbecoming a minister of the Gospel” were too vague. The conduct should be described as “indecorous and unseemly.”
At advising—
The issue numbered (3) ought, I think, to be disallowed. A charge of partiality is not of itself actionable, and if the word “corruptly” is used in any proper sense of its own, then there is nothing on the pursuer's record or in the article itself to support it.
The issue at present numbered (4) seems to me to be open to no valid objection.
The pursuer has inserted a separate schedule of damages for each issue. This does not seem necessary, as the issues are both founded on the same article, and should the jury hold but one issue to be proved, they can competently award (within the limits of the lump claim) whatever sum they think fit.
The first and second issues were made one, the third issue was deleted, the fourth issue became the second, and a lump sum of damages, laid at £1000, was put after the issues, which in this form were approved by the Court.
Counsel for the Pursuer— Jameson— M'Lennan. Agent— Thomas Liddle, S.S.C.
Counsel for the Defenders— Comrie Thomson— D. Anderson. Agent— P. J. Purves, S.S.C.
