Scottish Court of Session Decisions

A Visit to Brooklands, Parish of Kirkpatrick-Durham, Kirkcudbrightshire.

“After an absence of twenty years, we paid a visit to the land of our early associations. We looked in vain for the happy scenes that had gladdened us in the days of yore. Not a vestige was left of what once beamed comfort and happiness. All was gone, and the ruthless hand of the destroyer had laid bare his work of destruction, and the scene was changed. On entering the policies by the east lodge, the first apparent mischief which has been wrought is the running off of the water from the curling pond. A large opening had been made in the earthen mound which in the east side had encased the pond, and its once spell-bound waters were allowed to flow and join with the burn below. The once beautiful and well-kept laurel and other evergreens were in a state of moral decay. The avenue is overgrown with moss and grass, and ruin points her iron fingers to the devastating work she has so determinately carried out. The hedges which grew and throve so well are every here and there broken down, as if for the convenience of the ingress and egress of cattle to and from the pasture. The snowdrops and lilies which beautified the place twenty years ago seem to have undergone the process of ‘thinning.’ The embellishments of trees, in the shape of oblongs, ovals, hearts, &c., which adorned the parks, seem mere apology of former grandeur. The once extensive and beautiful rockery, composed of the choicest selections from the mineral and vegetable kingdoms, have disappeared, and nothing now remains but stumps to testify to their former existence. The fields which once yielded useful, various, and plentiful crops are now redolent with whin and broom, and betoken the presence of the sluggard. The garden, once the pride of the eye and a joy of life, has all but fallen into disuse. The stable and office-houses at the farm-steading, at one time extravagantly and elegantly finished, and tastefully arranged internally and externally, bear traces of the most manifest indolence and destructiveness, carelessness and recklessness. In short, turn we where we may, the most flagrant abuse of fields, gardens, orchards, policies, house, and farm-steading, is apparent. We did not ask who farmed the soil, occupied the house, or used the farm-steading, as enough existed to show that, be he who he may, he is barely worth a place on this fair earth. Proof was visible that the soil in the garden had not been turned with a spade or mattock, but that the ploughshare had carelessly done their work. The outer wall of the garden, at one time so beautifully hung with ivy, is now all but out of shape. The ivy has been allowed to overgrow till the inner wall on the north side has now as thick a coating as the outer wall—in fact the ivy has formed itself into a sort of carpet inside the garden. The effect of this is, that in several places the wall has fallen down, and in others it has become so bulged that it will be but the work of a short time when it will ‘crumble into dust.’ The truth is, the entire wall, like everything else, is falling into decay. A more glaring corruption of what was once a privileged place—of what was once an enchanting home—of what possessed all the endearments of a delightful country residence—have been obliterated. As a matter of course time works changes, but the short space of twenty years would never have wrought such devastation had the keeping of the place been entrusted to honest, careful, and persevering hands. Let us ask, Who is to blame for all this? It is well known that the estate of Brooklands was committed to a trust. It becomes us to ask in all faithfulness if this trust has done its duty. We fear if they (the trustees) were ‘weighed in the balance they would be found wanting.’ This is a public trust, and we will be excused if we put the question as above in all frankness, and in an honest candid spirit. The revenue of the estate was to be devoted to the education and upbringing of orphan children, not children connected with the parish only, but those belonging to Scotland and England throughout, and we do right if we ventilate the grounds of our complaint by asking if the essence of the trust has been preserved? We write from no selfish motives, malignant or vindictive spirit; the matter is a public one, and the public in justice ought to have the whole affair thoroughly sifted. We turned our back with regret on the scenes through which we had rambled in years gone by. Before, however, quitting the ground, we visited the Orphanage, the only bright spot on the whole

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estate. Through the kindness and courtesy of the governor, Mr Boyd, we were shown over the institution, and the buildings contiguous thereto, and we could not but look with astonishment on the condition of the buildings there, as contrasted with those of Brooklands proper. Everything there was maintained in perfect order, cleanliness, and comfort. We were invited into the schoolroom, where we saw six (6) boys, and considering the remainder might be at play, we expressed a desire to see them all at their lessons together, but we were told by the master that six was all he was allowed to keep; that the revenue of the estate would not uphold more. Surely, we remarked, the income from an estate of such an extent as Brooklands ought in all justice to comfortably maintain three times that number, and have a considerable balance for the sinking fund. Considering the small pittance allowed for each pupil, together with the small salary to the governor—neither a heavy sum—we may safely augur that if no more than six pupils can find a home in the institution, that there is a ‘screw loose somewhere,’ and the public ought to know where. Without a doubt, the trustees are the servants of the public, and the public are perfectly justified in demanding a balance-sheet of the income and expenditure during the currency of the trust. We also observed in the course of our peregrinations that a very large quantity of wood had very recently been cut down—such a quantity, indeed, as should have increased in no small degree the funds of the trust if advantageously disposed of. Now that we have written freely on the matter, we trust the public will agitate the question till such times as the issue is favourably divulged. The British are a people who dislike to be deprived of their rights, and we leave the matter in their hands, fully convinced that in this case they will uphold their dignity and maintain their rights.”

It was averred that these statements had reference to the pursuer and to the farm of Brook-lands, occupied by him, “and falsely and calumniously represent the pursuer as a sluggard, and not honest in the management of said farm, and also as indolent and destructive and careless and reckless, and that he has abused and neglected the farm occupied by him, in such a way that he (the pursuer) is barely worth a place upon the earth; or contain representations in reference to the pursuer in regard to his management of his farm of the same or a similar kind, and equally false and calumnious.”

The defender answered that the statements were true, but that they dealt with a public matter, and were made without malice, and in the discharge of a public duty.

The Lord Ordinary allowed the following issue,—“It being admitted that on or about 28th June 1876 the defender, John Bain, wrote and caused to be published in the Dumfriesshire and Galloway Herald and Register of that date the article contained in the schedule hereto annexed.—Whether the said article, or part thereof, is of and concerning the pursuer, and falsely and calumniously represents that the pursuer was a sluggard, and so careless and hurtful in his management of the farm of Brooklands, in the stewartry of Kirkcudbright, of which the pursuer is the tenant, as to be dishonest in the matter of the obligations incumbent on him as the tenant of the said farm, or makes similar false and calumnious representations of and regarding the pursuer, to his loss, injury and damage?”

The pursuer thereafter moved the First Division to vary the above issue and proposed to substitute the following:—“It being admitted that on or about 28th June 1876 the defender, John Bain, wrote and caused to be published in the Dumfriesshire and Galloway Herald and Register of that date the article contained in the schedule hereto annexed.—Whether the said article, or part thereof, is of and concerning the pursuer, and falsely and calumniously represents that the pursuer was a sluggard, and was not honest and careful in his management of the farm of Brooklands, in the stewartry of Kirkcudbright, of which the pursuer is the tenant, and that the pursuer had so flagrantly abused and destroyed the whole subjects comprehended in said farm as to be barely worth a place upon the earth, or makes similar false and calumnious representations of .and regarding the pursuer, to his loss, injury, and damage?”

The pursuer argued—If a direct slander could be extracted from any written article which was indirect in its imputations, that might be put in issue. There was here a charge of want of honesty, which was attributable to the person who occupied the farm. There was no ground for saying that it was a trade slander. The charge was a general one.

Argued for the defender—The article did not impute anything actionable apart from the pursuer's business. A charge of dishonesty in his relations with his landlord was too remote. The innuendo was a flagrantly unreasonable one.

Authority— Broomfield v. Greig, March 10, 1868, 6 Macph. 563.

At advising—