The Scots Law Times

December 7, 1928.

1ST DIV. front of them when engaged in this work. Like Lord Cullen, if I had been left to myself, Murray v. Fife Coal I should have been of opinion that this man Co. Ltd. met with an accident in the course of doing in a wrong way, i.e. a prohibited and dangerous way, the work which he was employed to do, and not in the course of some work outwith the sphere of his employment. But after I read the case of Donnelly (1921 S.C. (H.L.) 41; [1921] 1 A.C. 329), and, in particular, the judgment of the Lord Chancellor therein, I should have been satisfied that my first impression was erroneous; and I should have been of opinion that this man must be held to have met with his accident when engaged in doing something outside the sphere of his employment. But we were referred to a later and the most recent case, viz. Estler (91 L.J. (K.B.) 470; 15 B.W.C.C. 291), and I have found it impossible to distinguish that case from the present, for I am unable to distinguish in this regard a prohibition against getting in front of a moving body from a prohibition against touching a body whilst it is still in motion. Accordingly, after studying that case, I am satisfied that my interpretation of the case of Donnelly must be erroneous and that I must revert to my original impression.

Counsel for Appellants, Wark, K.C., Normand; Agents, Alex. Macbeth & Co., S.S.C.-Counsel for Respondents, Macmillan, K.C., Wallace; Agents, Wallace, Begg & Co., W.S., for W. T. Craig, Solicitor, Glasgow.

M. G. F.

Reparation Statement by chairman at meeting of a Parish Council-Reference by chairman to a letter received by him reflecting upon the character of a candidate for a post under

the Council-Refusal to disclose its contents except in confidence Action of damages by candidate against chairman-Innuendo that defender had in his possession information that pursuer "had been guilty of such misconduct as unfitted him" for said post "and could not be decently discussed in public" -Held that the words used by the defender would not bear the innuendo, and issue refused.

Daniel Hugh Campbell, compulsory officer to the School Management Committee of the Parish of Olrig in the County of Caithness, brought an action against Donald Weir, chairman of the Parish Council of the said parish, concluding for £500 as damages for slander.

COND. 3. Owing to the wide support which the pursuer received the defender became apprehensive lest the pursuer should be successful and his own candidate should be defeated. In order to prevent this result the defender, at the meeting of the said Parish Council held on 12th March 1923, at which pursuer's name came up for consideration, stated the said appointment fell to be made, when the that he had in his possession a letter which, even if the Council should appoint the pursuer, would ensure the refusal by the Board of Health of the necessary confirmation of the appointment. He further professed to be willing to shew the said letter to any of the members present, provided they would swear not to reveal the contents of the said letter or the name of the writer, but the said alleged letter was not member was willing (and the defender well knew and calculated that no member would be willing) to subject himself to an oath as a condition of seeing the supposed communication.

produced nor shewn to any of the members. No

COND. 4. The statements made at said meeting by the defender in regard to the said alleged letter were false, calumnious, and malicious. The said statement was of and concerning the pursuer. It meant and was intended to mean that the speaker had in his possession information that the pursuer had been guilty of such misconduct as unfitted him for the post for which he was a candidate and could not decently be discussed in public. In point of fact all of the members present so understood it and accepted that meaning upon the faith of the defender's assurance. No such letter as the defender described was in existence. The whole story of the alleged letter was a wilful, deliberate, and malicious invention on the part of the defender, and the professed willingness to shew it under an oath of secrecy was a mere blind. In making the said statement to the members present the defender purported to be acting either as chairman or as interim clerk. In either capacity he misled the members present by his representation that their intended election by vote was subject to a confirmation or veto by the Board of Health. This in point of fact was not the case, as the defender well knew. Moreover, he led those present to understand that his information was such that he was personally aware that the pretended confirmation of said Board was certain to be refused and that accordingly it was useless for the meeting to attempt to appoint the pursuer. The defender had no knowledge of any such intention on the part of the said Board; indeed, as they possessed no veto

they had not considered the question at all. The the defender to, and did in fact, prevent the members said representation was calculated to and intended by from making any attempt to investigate further as to the existence or contents of the alleged letter and from pressing for any verification of the alleged statements therein. In consequence of the defender's

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statement the pursuer's candidature was unsuccessful and the candidate favoured by the defender received the appointment. The salary attached to said appointment is £60 per annum, and the pursuer would have had a reasonable expectation of retaining it for life. Those members who would otherwise have voted for the pursuer in sufficient numbers to secure his election, and others who were otherwise of an open mind, resolved, in reliance on the good faith and credit of the defender, that it was useless to record a vote for the pursuer. The actings of the defender thus caused the loss of a permanent appointment at a salary of £60. The pursuer was told after the meeting by one of the members of the said Parish Council: That letter did for your chances." Further, the said statement has received wide publicity in the district and the pursuer has consequently suffered greatly in his character and reputation. In the circumstances he moderately estimates his damage at the sum sued for.

COND. 5. Whether or not any letter (and in whatever terms) was in the hands of the defender, he acted wrongfully and in breach of his duties as member and chairman or as interim clerk of the meeting in using the letter as he did. Such a statement as he made was calculated and certain in the circumstances to prejudice the pursuer both in his candidature and in his private capacity. This the defender well knew, and he took the course alleged maliciously and in reckless disregard of the rights and interests of the pursuer. Further, he knew and intended that the injury to be inflicted should all the more surely result by his suggestion of heinousness or at least grave seriousness of the matter in the pretended letter, conveyed by his refusal to produce or disclose it and by his suggested pledge to secrecy upon oath. This he did deliberately and wrongfully, and he caused the damage intended.

The pursuer pleaded, inter alia:

"1. The defender having maliciously slandered the pursuer, the pursuer is entitled to reparation. "2. The defender having wrongfully, in breach of his duty as clerk or member of the said Parish Council and in reckless disregard of the pursuer's rights and interests, made a statement of and concerning the pursuer falsely, recklessly, and without any foundation, which statement was calculated to injure and did injure him, is liable in damages to the pursuer." The defender pleaded, inter alia:

"1. The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.

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the defender, in the presence and hearing OUTER
of the other members of said Parish HOUSE.
Council present at said meeting, falsely Campbell
and calumniously said of and concerning v. Weir.
the pursuer, who was a candidate for
November 13,
1923.
said appointment, that he had in his
possession a letter which, even if the
Council should appoint the pursuer,
would ensure the refusal by the Board
of Health of the necessary confirmation
of the appointment, and that he was
willing to shew the said letter to any
of the members present, provided they
would swear not to reveal the contents
of the said letter or the name of the
writer, meaning thereby that the de-
fender had in his possession information
that the pursuer had been guilty of such
misconduct as unfitted him for the post
for which he was a candidate, and could
not be decently discussed in public, to
the loss, injury, and damage of the
pursuer?'

"Whether, time and place aforesaid, the
defender said of and concerning the pur-
suer and his candidature for the appoint-
ment of registrar, inspector, and clerk
to the Parish Council of the said parish
that he had in his possession a letter
which, even if the Council should appoint
the pursuer, would ensure the refusal
by the Board of Health of the neces-
sary confirmation of the appointment:
Whether the said statement
was of
and concerning the pursuer and was
false Whether it was calculated to
injure the pursuer in his profession, and
whether it was publicly made by the
defender wrongfully and in reckless
disregard of the injury which it was
calculated to do to the pursuer, all to
his loss, injury, and damage?"

At the discussion on the proposed issues, in addition to the authorities quoted in the opinion of the Lord Ordinary, the following were referred to: Paterson v. Welch, 20 R. 744; Waddell v. Roxburgh, 21 R. 883; Lever Bros. Ltd. v. The" Daily Record" (Glasgow) Ltd., 1909 S.C. 1004; Lamond v. The "Daily Record" (Glasgow) Ltd., 1923, S.L.T. 512: Riding v. Smith, L.R., 1 Ex. Div. 91; Ratcliffe v. Evans, (1892) 2 Q.B. 524

On 13th November 1923 the Lord Ordinary refused an issue, and dismissed the action.

Lord Blackburn.-The slander complained of in this action is alleged to have been uttered at a meeting of the Parish Council of Olrig in Caithness held on 12th March 1923 for the purpose of filling up the post of clerk to the

1923.

REPORTS-1924, SCOTS LAW TIMES.

OUTER Council, which had been vacant for a short proper understanding of the pursuer's answers
HOUSE. time prior to that date. The pursuer,
who thereto. In Statement 2 the defender narrates
Campbell had seen service during the war, was one of five that he was instructed to make enquiries about
v. Weir. candidates and was unsuccessful in obtaining the pursuer and another of the candidates, and
November 13, the appointment. The defender is the chair- that he informed the persons to whom he
man of the Parish Council and during the applied that any information they might supply
vacancy in the clerkship discharged the duties would be treated as confidential. He sets out
of interim clerk to the Council. The statement the terms of the letter received by him in reply,
complained of, as set out in the first of the issues which he states was only withheld from the
proposed for the pursuer, is that at the said Council because the members declined to
meeting the defender falsely and calumniously undertake to treat it as confidential. He does
stated that he had in his possession a letter not, however, and quite rightly in my opinion,
which, even if the Council should appoint the disclose the name of the writer. The pursuer
pursuer, would ensure the refusal by the Board in his answer to this statement avers that it was
of Health of the necessary confirmation of the the defender's duty to make further enquiries
appointment, and that he was willing to shew with regard to the statements contained in
the said letter to any of the members present, the letter, and charges him with deliberately
provided they would swear not to reveal the and wilfully failing to do so in case the enquiries
contents of the said letter or the name of the should result in making the letter useless for
writer, meaning thereby that he had in his his own purposes. He further avers that the
possession information that the pursuer had defender suppressed the actual facts of the
been guilty of such misconduct as unfitted him letter and the name of the correspondent because
for the post for which he was a candidate, and either would have shewn that the charge and
could not be decently discussed in public.' the source thereof were unworthy of credit.
In his condescendence the pursuer denies | Finally, the defender, in Statement 5, avers that
that any such letter ever existed (Condescend- at a public meeting organised by the British
ence 3). He avers (Condescendence 2) that Legion to protest against the Council's failure
the defender was a supporter of another candi- to appoint an ex-service man, a member of
date, and (Condescendence 3) that fearing that the Council, the Rev. Mr Robertson, made
his candidate would be defeated by the pursuer a speech revealing what had taken place at
he made the above statement. He admits the Council meeting. This the pursuer admits
that the defender offered to shew the letter to and endeavours to condone by the somewhat
any of the members present, provided they startling averment that the proceedings of
would swear not to reveal the contents or the the Council in making the appointment were
name of the writer. This offer was declined, public proceedings and bound to become known
and the pursuer avers (Condescendences 3 and 4) to all interested in the parish. It appears to
that the defender well knew and calculated that me that the pursuer has thus committed himself
no member would be willing to subject himself to alternative grounds of action; the one,
to an oath and that this offer was a mere blind. proceeding on the non-existence of any letter,
He further avers that the defender was well charges the defender with fabricating a fictitious
aware that the Board of Health had no power story, and the other, assuming that the letter
to confirm or veto any appointment made by had been received, charges him with breach of
the Council, and that by his reference to the duty in his method of dealing with it. The
Board of Health he misled the members and first proposed issue is directed to the former
prevented them from making any further ground of action, but defender's counsel
enquiry. In Condescendence 4 he sets out as maintained that the second ground of action
his ground of damage that he has lost an presents the weaker case for the pursuer, and
appointment worth £60 a year for life and has that accordingly an issue on the first ground
suffered much from the wide publicity which should be refused (Hope v. Hope's Trs., 1 F.
the statement has received in the district. In (H.L.) 1). In my opinion, this would have been
Condescendence 5 the pursuer adumbrates an a sufficient reason for refusing the issue if there
alternative case which is much developed in were no ground other than this somewhat
his answers to the defender's statement of facts. technical one on which it could be challenged.
This proceeds on the assumption that the
defender might have received such a letter, and
in that event the pursuer avers that the de-
fender acted in breach of his duties as member
and chairman or as interim clerk of the Council
in using the letter as he did, and that in so doing
he acted maliciously. The statement of facts
for the defender must be referred to for the

I entertain no doubt that the proceedings of a public body such as a Parish Council which meets for the purpose of discussing the merits of applicants for a post in their employment are private and not public proceedings, and that statements made by members present as to the merits or demerits of the respective candidates are privileged. Malice would accordingly

REPORTS-1924, SCOTS LAW TIMES.

With regard to the second issue, I do not think that this is a proper case of verbal injury. The pursuer has either been slandered or has suffered no wrong.

Accordingly, I shall refuse both issues.

Counsel for Pursuer, Mackay, K.C., Christie;
Agents, Manson & Turner MacFarlane, W.S.,
and Keith & Murray, Solicitors, Thurso.-
Counsel for Defender, Robertson, K.C., Cooper;
Agents, Macpherson & Mackay, W.S.
J. M'G.

November 13,

1923.

require to be introduced into any issue to be the accuracy of the statement. That the words OUTER allowed. Nor have I any doubt that informa- complained of, coupled with the statement HOUSE. tion imparted to the members of the Council that the letter would only be submitted to the on such an occasion relevant to the subject under Council under a pledge of confidentiality, v. Weir. Campbell consideration should be treated as strictly implied that the pursuer "had been guilty of confidential, and that any member repeating such misconduct as could not decently be or commenting on such confidential com- discussed in public" is, I think, a strained munications outside the council chamber construction which no member of the Council would not only commit a gross breach of his was entitled to put upon them and which public duty but might render himself liable indeed they will not bear. That being so, to all the consequences of himself uttering a I feel bound, in accordance with the views slander on an occasion on which he would not expressed in Russell v. Stubbs (1913 S.C. (H.L.) be entitled to plead privilege. In my opinion 14, per Lord Shaw at pp. 23-24), in Langlands v. the fact that the pursuer admits that the whole John Leng & Co. (1916 S.C. (H.L.) 102, per proceedings on this occasion were shortly Lord Haldane at p. 105), and in Lyal v. Henderafterwards detailed on a public platform by a son (supra, per Lord Chancellor Buckmaster), to member of the Council is a complete justifica- refuse the first issue. tion for the action which the defender took in refusing to produce a letter received by him as confidential unless the members of the Council would undertake so to treat it. Assuming the letter had been received by the defender, I think it would be impossible under the circumstances to treat his conduct in asking his colleagues to treat it confidentially as a relevant averment of malice. (See Lyal v. Henderson, 1916 S.C. (H.L.) 167, per Lord Chancellor Buckmaster at p. 175.) I find it impossible to hold that the innuendo which the pursuer proposes to attach to the words uttered is the natural, reasonable, or necessary meaning of the statement alleged to have been made by the defender. All that is averred is that he stated (Condescendence 3) "that he had in his possession a letter which, even if the Council should appoint the pursuer, would ensure the refusal by the Board of Health of the necessary confirmation of his appoint- 4. ment.' If it had been averred that he had repeated to the Council the statements contained in the letter as published by him in his statement of facts there might have been some justification for the first part of the innuendo. But not only does the pursuer not aver that the defender made any specific statements reflecting on his character but in his Answer 3 to the statement of facts he deliberately states that the defender suppressed the actual terms of the alleged letter. Now, under these circumstances, I do not think any reasonable man would be justified in extracting any other meaning from the words used than that the pursuer was not a suitable man for the vacant post, and that the Board of Health would not approve of him. Whether in fact confirmation by the Board to the appointment was required or not does not appear to me to be very relevant. The defender avers that it is still his honest opinion that such confirmation is required but no sufficient argument was submitted to me to enable me to form any definite opinion as to

BILL CHAMBER.

(Lord Murray.) 30th October 1923.

Petition, Bedell-Sivright's Curator

Bonis.

Entail-Estate duty-Debt chargeable upon fee of estate

-Entailed estate held under declaration of trust-
Estate duty paid by executor of deceased heir-of-
entail on whose death estate duty became exigible in
respect of the passing of entailed estate-Note by
executor for order on trustees holding entailed
moneys to pay him thereout amount of estate duty
paid by him-Entail (Scotland) Act, 1882 (45 & 46
Vict. cap. 53), section 27-Finance Act, 1894
(57 & 58 Vict. cap. 30), section 9 (1), (5)-
Order granted-Orr-Ewing, Petr. (1920, 1 S.L.T.),
distinguished.

Entail-Succession duty-Debt chargeable upon fee of

estate-Entailed estate held under declaration of trust -Succession duty paid by executor of deceased heirof-entail on whose death succession duty exigible in respect of passing of entailed estate-Note by executor for order on trustees holding entailed moneys to pay him thereout amount of succession duty paid by him-Entail (Scotland) Act, 1848 (11 & 12 Vict. cap. 36), section 25-Entail (Scotland) Act, 1853 (16 & 17 Vict. cap. 94), section 9-Succession Duty Act, 1858 (16 & 17 Vict. cap. 51), section 42-Order Entail-Expenses-Note in pending petition-Petition granted.

for order for sale of entailed estate-Order for sale

BILL CHAMBER.

Petition, BedellSivright's Curator Bonis.

granted-Price vested in trustees for behoof of heirsof-entail-Note in petition for order on trustees to pay Government duties out of entailed moneysCrave to authorise expenses of note to form part of expenses of petition for order for sale-Order granted.

Theodore Bedell-Sivright, heir-of-entail next in succession and as such coming in room and October 30, place of Harry Auldjo Jamieson, W.S., curator bonis to John Vandeleur Bedell-Sivright (now deceased), heir-of-entail in possession of the lands and barony of Southhouse and others, presented a note in a petition by the said Harry Auldjo Jamieson, as curator bonis foresaid (for an order for sale of part of the said entailed estates), craving, inter alia, for warrant and an order on William Duncan Lowe and others, as trustees holding the entailed moneys, the price of the said entailed estate, for repayment out of the trust funds held by them of the sum of £1026, 12s. 10d., being the amount of the estate and succession duties, exclusive of interest, paid by him as executor-dative qua next-of-kin of the said John Vandeleur BedellSivright in respect of the said entailed estates on the death on 24th November 1917 of William Henry Revell Bedell-Sivright, the then heir-of-entail in possession thereof. The note further craved the Court to direct and authorise the expenses of and incident to the note to form part of the expenses of the petition.

The material facts and the relevant provisions of the statutes sufficiently appear from the opinion of the Lord Ordinary on the Bills.

On 30th October 1923 the Lord Ordinary on the Bills (Murray) granted the prayer of the note.

Lord Murray.-In September 1920 the curator bonis to the now deceased John Vandeleur Bedell-Sivright presented a petition for an order for sale of certain entailed lands of which the said John Vandeleur Bedell-Sivright was heirin-possession. On the death of the said John Vandeleur Bedell-Sivright, Theodore BedellSivright, the heir-of-entail next in succession, was sisted as petitioner in lieu of the said curator bonis.

Following on said petition the entailed lands were sold, and the balance of the price is now held by certain trustees in usual form for behoof of the present heir and the heirs of entail in their order. The price so held is, in terms of section 27 of the Entail Act of 1882, entailed estate.' This note in the original petition (which still subsists as a depending process in virtue of section 23 (5) of the Entail Act of 1882) is presented under the following circumstances.

The immediate predecessor of John Vandeleur Bedell-Sivright as heir in possession was William Henry Bedell-Sivright, and, on the latter's death, estate duty became exigible in

respect of the passing of the entailed estate to next heir, the said John Vandeleur BedellSivright. Succession duty also became payable in respect of the latter's succession.

The present heir in possession, the petitioner and noter, who is also executor-dative of John Vandeleur Bedell-Sivright, has, since the order for sale was made in the original petition, paid the amounts of the said estate duty—£942— and succession duty-£84, 12s. 10d.-conform to certificates produced. The sums so paid amount in all to £1026, 12s. 10d.

The purpose of the note is to effect payment of this sum out of the price of the entailed estate now vested in the trustees. The note has been duly intimated and served upon, inter alios, the trustees and the next heirs, and no answers have been lodged.

First, as regards the amount of the estate duty.

In terms of section 9 (1) of the Finance Act, 1894, the amount of this duty constitutes a charge upon the estate. It has been paid by the petitioner as the person accountable therefor, and, under section 9 (5) of the statute, he claims to be entitled to raise this amount, inter alia, by a sale of the estate. Special provision is made by section 23 (18) of the Act for the case in which the property is not vested in the person paying the duty, which is the case in hand, and enables such person to apply to the Court, either for an order for sale and payment out of the price, or to obtain a bond and disposition therefor secured over the estate. The present note craves the first of these alternative remedies.

It is true that section 23 (18) of the statute contemplates the existence of the charged property in the form of real estate and not in the form of money as a surrogatum therefor, but, in view of the provision of the Act of 1882 already referred to, I am of opinion that the section applies to the present case and that the petitioner is entitled to the order or authority he craves.

In the case of Orr-Ewing (1920, 1 S.L.T. 259), where, as here, the entailed estate had been sold under order of the Court and the price vested in trustees, a petition was presented to the Court for an order or authority to meet the estate duties. In that case, however, the duty had in fact been paid, not by the heir in possession but by the trustees in whom the property was vested. Section 23 (18) had accordingly no no application. Under these circumstances the Lord Ordinary dismissed the petition as unnecessary in respect that the trustees were already fully vested, by virtue of the Act of 1894, with a power of sale for the purpose of payment of the duty. I agree with the argument of petitioner's counsel, that that decision does not govern the present case.

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