Scottish Court of Session Decisions

James Peden Douglas brought an action in the Sheriff Court at Airdrie for slander

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and wrongous apprehension against Margaret Main.

The pursuer averred that in June 1892 he was living with his family at Millport; that on June 27th he travelled from Glasgow (Central Station) to Millport via Wemyss Bay; that the defender, her mother, and another passenger travelled in the same compartment with him from Glasgow to Wemyss Bay; that a fifth passenger entered the compartment at Bridge Street Station, Glasgow, and left at Paisley; and that the defender sat at the farthest side of the compartment from the pursuer. He further averred—“(Cond. 4) At Wemyss Bay pursuer … went on board the steamer for Largs and Millport (‘The Marchioness of Lorne’) going downstairs to the saloon…. On going out of the saloon Constable M'Condie … confronted pursuer, and acting on the instructions of defender, and on her information, accused pursuer in presence of defender of stealing a watch from defender in the train between Glasgow and Wemyss Bay. Defender also accused pursuer of having stolen her watch… . That pursuer denied, and he thereupon handed his card to the constable, and Mr Hunter and others also testified to pursuer's respectability, and that it was impossible that he could be guilty of such an act, but notwithstanding defender persisted that pursuer stole her watch, and would not allow the constable to release pursuer. Pursuer was accordingly in custody from time of accusation was made till he was liberated at Millport Police Office. The defender frequently, from time of apprehension till the boat reached Millport, in a loud tone of voice continued to say, in the presence of the passengers, that pursuer had stolen her watch, and that he was the only person who was in the carriage with defender and her mother…. Pursuer believes and avers that defender never lost her watch, and avers that defender has stated that to several persons since, including Janet Steel, Glenlore Farm, New Monkland, and Margaret Steel, residing there, the exact places and dates being unknown to pursuer.” At Millport the pursuer was liberated after being searched. “(Cond. 8) The apprehension of the pursuer by Constable M'Condie and Constable Munro was done by and at the request and on the information of the defender, and in giving the information defender did she acted in a wrongous, illegal, cruel, reckless, oppressive, and malicious manner, and without probable cause, and it was an insult to pursuer, and the loud talking and personal accusation by defender of pursuer being a thief in a crowded place, and her persisting on the constable detaining pursuer in custody after reasonable evidence of his respectability had been established, and of her subsequently concealing the fact that her watch had never been stolen, were wrongous, illegal, cruel, reckless, and oppressive, and malicious, and were made without probable cause.”

On 12th April 1893 the Sheriff-Substitute ( Mair), before answer, allowed parties a proof of their averments.

The pursuer appealed to the First Division, and proposed the following issues for trial of the cause—“(1) Whether on or about 27th June 1892, on board the steamer ‘Marchioness of Lorne,’ during the passage between Wemyss Bay and Largs, the defender maliciously, and without probable cause, caused the pursuer to be apprehended on a charge of theft, and thereafter to be searched by a police officer at Millport, to the loss, injury, and damage of the pursuer? (2) Whether on or about 27th June 1892, on board the steamer ‘Marchioness of Lorne,’ during the passage from Wemyss Bay to Millport, the defender falsely and calumniously stated, in presence and hearing of Charles Hunter, grocer, Millport, and Peter Campbell, grocer, Millport, that the pursuer had stolen her watch, to the loss, injury, and damage of the pursuer?”

The defender objected to the relevancy, and argued—1. In regard to the first issue, it was not only necessary for the pursuer to aver malice, but to aver facts and circumstances from whichmalice might be inferred. This he had failed to do, and accordingly the first issue should be disallowed— Lightbody v. Gordon, June 15, 1882, 9 R 934. 2. The alleged repetition of the charge made by the defender against the pursuer after the latter's apprehension was part of the res gestœ connected with the charge originally made, and the second issue should therefore be disallowed— Hassan v. Paterson, June 26, 1885, 12 R. 1164; Ferguson v. Colquhoun, July 19, 1862, 24 D. 1428. There was no such lapse of time between the bringing of the original charge and its repetition as in Walker's case.

Argued for the pursuer—1. The pursuer's averments, if true, showed that the defender had made a charge of theft on most insufficient grounds against a respectable citizen, and had recklessly persisted in that charge after having been informed of his respectability. There was thus, in the sense of the decisions, a sufficient averment of facts and circumstances from which malice might be inferred. 2. The allegation that the defender went about after the apprehension repeating her accusation against the pursuer entitled the pursuer to the second issue— Walker v. Cumming, February 1, 1868, 6 Macph. 318.

At advising—