The defenders reclaimed, and argued—This was a clear case of privilege. Where a person was so situated that it became right in the interests of society that he should tell a third party certain facts, then if he bona fide and without malice does tell them, it is a privileged communication— per Blackburn, J., in Davies v. Snead , 1870, L.R. 5, Q.B. 611. There was a common interest among traders to see that their horses were not ill-used. The pursuer averred that the defenders knew that he had charge of his master's horses. This showed a duty on the part of the defenders to communicate to the pursuer's master the information which they had received. Besides, if the information which the defender received were true, a crime had been committed. All members of society were interested in the prevention of crime, and the defenders as the owners of the horse had a special interest and duty in the matter. The occasion was therefore privileged, and Nelson v. Irving , supra , was in point. If it was a case of privilege, then the action could not be maintained, as although there was a general averment that the defenders acted maliciously, there were no facts and circumstances set forth on record to infer malice. In any case malice ought to be inserted in the issue.
Pursuer's counsel was not called on.
Lord Justice-Clerk —As regards the question of relevancy, I think this case is presented in a form which is quite usual and often seen. It is alleged upon record that a statement has been made, which, if not true, is plainly slanderous, and it is further said that that statement was made recklessly and without inquiry or probable cause. Prima facie , that discloses a relevant case, unless there are also facts and circumstances stated which show privilege. A man who utters a slander, having no duty or right or interest to make the statement containing it, is held to make a statement which is false and calumnious, and he is liable in damages whether he made the statement maliciously or not. On the other hand there are many cases where a person uttering a slander is held to be privileged, as, for example, the case of a master giving the character of a servant. It is only where the false statement is also malicious that a verdict can be obtained against the master. But the question whether there is privilege or not must often depend upon the facts of the case as disclosed by the evidence adduced at the trial, and in many cases it must be left to the presiding judge to direct the jury whether the facts brought out disclose a case of privilege or not.
In this case I cannot say that I see any case of privilege upon record. The defenders accepted the statement of their servant that their horse had been stabbed by the pursuer, and they thereupon wrote the letter which is complained of, informing the pursuer's master of this, and stating that they were considering the necessity of reporting the act to the Society for the Prevention of Cruelty to Animals. They do not say now on record that the stabbing ever took place at all. I do not see that the defenders had any duty to write such a letter. If they had been of opinion that there was a case against the pursuer, they should have gone to the proper authorities and told them of what they had been informed, in order that the proper authorities might make inquiries and take action if so advised. In such a case undoubtedly they would have been privileged. But here they write to the man's employer, and I do not see that they had any duty to do that. The class of cases in which malice must be put in issue are those cases where the alleged slander has been uttered by persons holding an official position, or is contained in communications made to persons in official position who have a right to know; so also in cases of master and servant. But there are other cases in which special circumstances may set up a case of privilege. In such cases it may be essential before the question of privilege can truly arise that the facts should be ascertained. In the present ease I agree with the Lord Ordinary that the question
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Lord Trayner —I think that the issue which the Lord Ordinary has approved is the proper issue for the trial of this case. I do not require to say whether I concur in the views expressed by the Court of Appeal in the case of Stuart , or those expressed by our own Court in the case of Nelson . It is not necessary to say anything about these cases, because I think the present action can be dealt with on a very simple ground not affected by these decisions. This action is founded upon the averment that the defenders made a false and calumnious statement concerning the pursuer to the pursuer's master. Such a case must be treated as an ordinary case of slander; it is not prima facie a case in which privilege can be pleaded, for there is nothing stated on record to show that the defender was entitled or had any duty to make the charge which he did. The Lord Ordinary was right, and acting in accordance with usual practice, to leave the question of privilege open for determination at the trial, so that if a case of privilege is made out in course of the trial the pursuer will not succeed unless malice is proved.
Lord Moncreiff —I am of the same opinion. I think that the Lord Ordinary has taken the proper course in approving of the issue as it stands. I also agree with him that the question of privilege should be left over for the trial. I am not prepared to say that even if a case of privilege is disclosed at the trial and if it is necessary for the pursuer to prove malice, there are not statements on record which would enable him to do so.
Lord Young was absent,
The Court adhered.
Counsel for Pursuer— Orr. Agents— George Inglis & Orr, S.S.C.
Counsel for Defenders— Kincaid Mackenzie— T. B. Morison. Agent— D. Hill Murray, S.S.C.