William Ewing - Lord Advocate (Jeffrey) v. Mrs. Helen M'Kenzie or Cullen - Jervis [1833] UKHL 6_WS_566

UKHL
William Ewing - Lord Advocate (Jeffrey) v. Mrs. Helen M'Kenzie or Cullen - Jervis
[1833] UKHL 6_WS_566 · 1833-08-24
Certain judicial statements alleged to be slanderous, held (reversing the judgment of the Court of Session) to be privileged, unless it was proved that the party using them did so from motives of malice, and did not believe them to be true; and a remit made to ascertain these facts by the verdict of a jury.

Subject_ Husband and Wife. —

Circumstances under which held that a married woman was entitled to sue for damages on account of slander without the concurrence of her husband.Archibald wight , who had been in the service of the appellant Ewing as the manager of a depot for the sale of coal, brought an action against Ewing for damages in respect of an alleged wrongous dismissal, and for payment of a balance on their mutual accounts, including wages. In defence Ewing denied that he had wrongously dismissed Wight, and made certain statements impeaching the respectability of his character, and charging him with carrying off and not accounting for the value of coals. In making these statements he introduced the name of the respondent, who was living separate from her husband, and in whose house Wight

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Lord Newton, on the 18th of May 1830, sustained the first of these defences and dismissed the action; but the Court, on the 19th of November, altered, and appointed the respondent's father to be her curator ad litem. * Thereafter the following issues, which embraced the matter set forth in the respondent's summons, were sent to a jury:—
“1. Whether on or about the 12th day of May 1827 the defender did lodge or cause to be lodged, in a process then depending in the Jury Court, a paper or pleading intituled Answers for William Ewing, Esq. to the condescendence for Archibald Wight, containing the following words, or words to the following effect, according to the meaning herein-after set furth, viz.—‘He’ (meaning the said Archibald Wight)

Footnote

* 9 S. D. B. 31.

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2. Whether on or about the 2d day of June 1827 the defender did lodge or cause to be lodged in the said process a paper or pleading intituled Revised answers for William Ewing, Esq. to the revised condescendence for Archibald Wight, containing the following words, or words to the following effect, according to the meaning herein-after set furth, viz.—‘He’ (meaning the said Archibald Wight) “was habitually addicted to gambling and drunkenness, and frequently spent days and nights in this and other kinds of profligacy, and having gone to reside with a married woman of the name of Cullen, then living apart from her husband, he engaged in a fraudulent transaction with this female to disappoint her landlord of his right of hypothec while in the employment of the defender,” (the defender meaning

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“3. Whether on or about the 6th of September 1827 the defender did lodge or cause to be lodged in the said process a paper or pleading intituled Re-revised answers for William Ewing, Esq. to the re-revised condescendence for Archibald Wight, containing these words, or words to the following effect, according to the meaning herein-after set furth, viz.—“And of this date (November 9, 1825) sold a quantity of coals to Mrs. Cullen, a married woman” (meaning the pursuer) ‘with whom he’ (meaning the said Archibald Wight) ‘cohabited’ (meaning thereby lived in a state of adultery) “during the whole period of his employment in the defender's service; that he” (meaning the said Archibald Wight) “had engaged in a fraudulent transaction with this person, on or about the 21st of November, to defeat the landlord's right of hypothec by clandestinely carrying and concealing the furniture of the house,” (the defender meaning thereby that the pursuer had become a party in a fraudulent transaction to defeat her landlord's right of hypothec over her furniture by furtively carrying away and concealing the same with the assistance of the said Archibald Wight.) And whether,” &c.
“4. Whether on or about the 18th day of November 1828 the defender did lodge or cause to be lodged in the said process a paper or pleading intituled Re-revised answers for William Ewing, Esq.,

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“5. Whether on the North Bridge, Edinburgh, in the end of November or month of December 1825, or January 1826, and in presence and hearing of John Thomson, slater in Edinburgh, the defender did falsely and calumniously say that the pursuer kept an improper and disorderly house, (meaning a bawdy-house,) in which the said Archibald Wight was living and cohabiting (meaning living in adultery) with her; that he the said Archibald Wight and the pursuer were keeping a bawdy-house in Roxburgh Street; that she fed him on roast ducks and other good cheer to supper to make him useful to her, (meaning thereby that he might be able to administer to her the pursuer's carnal and licentious appetite;) that the pursuer was burning his the defender's coals in her bawdy-house; that he the defender would disappoint the pursuer of a few nights of Wight by having him apprehended and put in jail; or did

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Two other issues, (6 and 7,) in the same terms, but at different times and places, then followed, and another, 8, “Whether in the chambers of Messrs. Campbell and Mack, writers to the signet in Edinburgh, on one or other of the days of November or December 1825, or January 1826, in presence and hearing of the said Messrs. Campbell and Mack the defender did falsely and calumniously say” (as in the preceding issue).No issues in justification were taken.On the 14th of March 1832, the jury, under the direction of the Lord President, with concurrence of Lord Gillies, returned a verdict, by which “in respect of the matters proven before them they find for the pursuer upon the first, second, third, fifth, and seventh issues, and assess the damages at 200 l . sterling, and find for the defender on the other issues.” * Against the direction to the jury a bill of exceptions was tendered in these terms:—deliver his opinion, that the action was not barred nor the question of damages there affected, and that though these issues were only established by the testimony of John Thomson, a single witness, yet that Thomson's evidence was corroborated by the judicial statements made by the defender in the above-mentioned papers given in by him in the said process between him and Wight, and now given in evidence for the pursuer, and that this was fit matter for consideration of the jury; and farther, the said Right Honorable Lord President gave it as his opinion and charge to the jury in point of law, that the expression or words libelled on in the said first four issues were totally irrelevant between the said defender Mr. Ewing and the said Archibald Wight in the said process mentioned, and were not in any way privileged, though used in a judicial discussion; and with those directions his Lordship left the case to the said jury; and the jury then and there gave their verdict on the first, second, third, fifth, sixth, and seventh issues for the said pursuer, with 200 l . of damages; whereupon the said counsel for the said defender did then and there on behalf of the said defender except to the aforesaid several opinions of the said Lords, and insisted on the said several matters as an absolute bar to the said action.”
“And the said counsel for the said defender did maintain and insist before the said Lord President and Lord Gillies that in reference to the expressions founded on in the fifth, sixth, and seventh issues, and which are said to have been used in 1825, or January and February 1826, that all action on the part of the pursuer in relation thereto was excluded by the length of time which had been allowed by the pursuer to elapse before complaining of the same or raising her said action, which was not raised till the 8th November 1828. But the said Lord President did at the said trial declare and

Footnote

* 10 S. D. B. 497.

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The Court, on the 30th of June 1832, disallowed the bill of exceptions, sustained the verdict, decerned against the appellant for 200 l . sterling, and found him liable in expenses. *Ewing appealed.

Footnote

* 10 S. D. B. 743.

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Appellant .—1. The respondent is a married woman, and the object of the action is to establish a liability against the appellant for payment of a sum of money. On the supposition that such a liability exists, the debt is due not to the respondent, but to her husband, in whom it vested jure mariti. It is attachable by his creditors, and not by her creditors; and if he were dead it would not belong to her, but would form part of the goods in communion, and be distributed according to the rules of law. This objection is not obviated by the nomination of a curator ad litem. Such an appointment may be proper and fit where the subject in dispute belongs to the wife herself, as a heritable estate, and the husband declines to concur, or where he has an adverse interest to that of the wife. But the subject in question belongs to the husband de jure, and so far from having an adverse interest to the wife, it is his interest that the money should be recovered.2. The direction that the language used in judicial pleadings was not privileged and was irrelevant to the matter then in dispute was contrary to law, in respect that language used judicially and pertinent, or which the party believes to be pertinent to the matter at issue, is protected, unless evidence be brought that it was used maliciously; and accordingly malice is both libelled and put in issue. From the very nature of the action between the appellant and Wight every statement affecting the respectability of his character and his honesty, and relative to his embezzlement of or intromission with the coals belonging to the appellant, was relevant to exonerate the appellant from the claim of damages made by Wight for his alleged wrongous dismissal, and to show that he had no claim on the state of accounts

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3. By the law of Scotland one witness is not sufficient to prove any charge, either of a criminal or civil nature. The only witness adduced in regard to the extrajudicial statements was a person of the name of Thomson. It is true that the testimony of a single witness may be made sufficient by the evidence of corroborative circumstances, but the only circumstance alleged to have existed is that the appellant stated judicially the facts mentioned by Thomson. This is not corroborative of the evidence of Thomson; it is merely a repetition to the Court of the statement, but not that the statement was made to Thomson.Respondent .—1. It is an established rule that when a husband without good reason refuses to concur in an action at his wife's instance for the vindication of her rights or character, it is competent to authorise the action to be carried on in her own name and of a curator ad litem. † The object of the present action

Footnote

* Robertson v. Graham , 15th July 1818, 3 Dow, 277; Forteith v. Earl of Fife , 18th November 1819, F. C. 2 Murray's Reports, 470; Gilchrist v. Dempster , 3 Murray, 364.† Marshall v. Marshall , 9th January 1623, Mor. 6037; Halket v. Gordon , 8th July 1673, Mor. 6,039; Byres, 28th July 1708, Mor. 6045; Finlay v. Hamilton , 5th February 1748, Mor. 6,051; Lady Fowles, 21st December 1626; Mor. 6158; 1 Stair, 4, 15.

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2.The statements of the appellant were irrelevant, in respect that the only matter truly at issue between him and Wight related to certain accounts which existed between them, not in the character of master and servant, but of partners in a joint adventure. Having thus no occasion to introduce the name of the respondent, his assertions in regard to her must be considered as altogether gratuitous, and to have been made from no other motive than malice.3. The direction to the jury that a single witness corroborated by circumstances was sufficient, was perfectly correct; and the jury being satisfied that there were circumstances corroborative of the testimony of Thomson, their verdict is unimpeachable.Lord Wynford .—My Lords, I beg leave to move your Lordships for judgment in a case in which William Ewing is the appellant, and Mrs. Helen Mackenzie or Cullen the respondent. This was an action for slander, for certain words imputing to the respondent, certainly, that she was living in an improper manner, and keeping very improper company. There would be no doubt that the words were actionable, provided they had not been used on the occasion on which they were; but it appears from the proceeding in this cause, that

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“That the said Archibald Wight had sold a quantity of coals to Mrs. Cullen, a married woman, with whom he cohabited during the whole period of his employment in the defender's service.”
Then it further states the slander to have been used at different times, and under different circumstances,—“that he had stated to a person of the name of John Thomson, slater in Edinburgh, and others, that the pursuer kept an improper and disorderly house, in which the said Archibald Wight was living and cohabiting with her, and did otherwise falsely and maliciously asperse the pursuer's character.” This being the complaint I have stated to your Lordships, the answer to it is, that all these

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My Lords,I think the simple question upon which the whole depends is, whether these defences were relevant to the question to be decided in the cause of Wight v. Ewing ? If they were, the judgment pronounced by the two learned Judges in the Court below is wrong. Upon this point there is a case which was determined some years ago, in which a similar error appears to have been fallen into; it came by appeal to this House, and Lord Eldon corrected that judgment by sending it back, as I am of opinion your Lordships must do in this case. In the case of Robertson v. Graham , the Court of Session ordered certain passages in a pleading of General Robertson reflecting on the conduct of a third person, not a party in the cause, to be expunged, and found the third party, who petitioned the Court to that effect, entitled to the expenses of the application. That was the only discussion, whether they ought to have been expunged from

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The House of Lords declared, That the words libelled on in the first four issues were relevant to the matter in issue in the process therein mentioned between the said appellant and the said Archibald Wight, and were privileged as used in a judicial discussion, unless it could be shown that the party so using them did in fact use them from motives of malice towards Mrs. Helen M'Kenzie or Cullen, and did not himself believe them to be true: And this House does therefore find, that The direction given by the Lord President to the Jury in this case was not correct in point of law, and that the bill of exceptions taken thereto ought to have been allowed. But this House is further of opinion, that an opportunity ought to be afforded for ascertaining by the verdict of a jury, whether the said appellant did use the said expressions and words out of malice towards the said respondent, and did not himself believe them to be true; and also whether the expressions and words libelled on in this action, or any, and which of them in particular, are sufficiently proved according to the law of Scotland: And it is therefore ordered and adjudged, That the said interlocutors, so far as complained of, be and the same are hereby reversed: And it is further ordered, That the said cause be remitted back to the said First Division of the Court of Session in Scotland, and that the Judges of that Division do allow the said bill of exceptions, and do give

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Solicitors: J. Butt— A. & R. Mundell, Solicitors.