The first question is, whether this occasion was privileged—that is, so privileged as to displace the presumption arising from a slanderous statement that it was made falsely and maliciously. The law assumes that a slanderous statement, if made without any proper occasion for making it, as mere gossip or tittle-tattle, is false and malicious. But if the occasion upon which the statement is made is such as to displace this presumption, then unless malice is proved the person complaining of the slanderous statement is not entitled to damages. I think that here there was privilege, and I also think that the pursuer has failed to prove malice. I am therefore of opinion that the judgment of the Sheriff-Substitute was erroneous, and that the defender should be assoilzied.
Lord Moncreiff — I am of the same opinion. The occasion was clearly privileged. The pursuer being desirous of joining the Secession Church, wished that the estrangement between himself and the defender, who was a prominent member of that Church, should be brought to an end; and he called upon the Presbytery to assist him to effect this. Accordingly, on his solicitation, the defender was called upon at the meeting to say what was the cause of the differences between him and the pursuer. That occasion was thus undoubtedly privileged, and the defender will be protected unless the privilege was exceeded. What was said by the defender was said at the pursuer's request with a view to the differences between himself and the defender being healed. I have therefore no doubt that the defender was justified in speaking unless he did so maliciously.
I had some doubt whether there was not proof of malice, looking to the persistency with which the defender has adhered to his charge against the pursuer. But on a consideration of the whole evidence I have come to the conclusion that there is not sufficient evidence of malice to overcome the presumption in the defender's favour which arises from the occasion upon which the words were uttered. The defender was asked to explain why he refused to associate with the pursuer, and in reply he asked the pursuer, “Have you kept the money that should have gone to Edinburgh?” This question might imply that he accused the pursuer of misappropriating money belonging to the Free Church. If he meant, and was understood to imply, a charge of theft or dishonesty against the pursuer, the fact that, in full knowledge of the circumstances which are disclosed in the evidence, he persisted in making such a charge might be evidence of malice. But I do not think that meaning is necessarily to be put upon the words used. There is ground for believing that the defender meant no more than this, that it was an improper thing for the collectors to take the money for the pursuer and to give it to him, and for him to accept it, even although the contributors said they wished their contributions to go to the pursuer. It is to be observed that in the result this money was taken from the Sustentation Fund, because people who usually contributed to that fund did not subscribe that year owing to their having given all they could spare to the collectors for the pursuer. It thus appears that in what the defender said he was only indicating the view which he entertained as to the impropriety of the pursuer's conduct; and I think that he was so understood.
Again, the fact that the defender had not spoken about this matter at all for about two years since the investigation seems to negative the idea of malice. Moreover, he only spoke about it in 1894, when asked to do so by the pursuer himself with a view to their differences being settled, and with the aid of the Presbytery.
On the whole matter I think that there is not sufficient evidence of malice, and that consequently privilege being established, we should recal the interlocutor of the Sheriff—Substitute and assoilzie the defender.
Lord Trayner was absent.
The Court pronounced the following interlocutor:—
“Sustain the appeal and recal the interlocutor appealed against: Find in
Page: 864 ↓
Counsel for the Pursuer— Jameson, Q.C.— Glegg. Agents— George Inglis & Orr, S.S.C.
Counsel for the Defender— W. Campbell, Q.C.— A. S. D. Thomson. Agents— Duncan Smith & MacLaren, S.S.C.