Scottish Court of Session Decisions

This was an action for £500 in name of damages and solatium. The ['pursuer Mary Mullen had been a saleswoman in the service of the defender John White, a pawnbroker and salesman in Edinburgh. On 9th October 1880 she was apprehended on a charge of theft, in so far as it having been her duty to enter in a sale-book belonging to the defender a correct note of the price of the goods she sold, she had on the 4th October entered in that book a sum of 18s. as the price of certain goods sold by her instead of the sum of £1, which in reality she had received as the price

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thereof, and had appropriated the sum of 2s. There were various other charges of the same nature. On the 9th October, the day following her apprehension, she was tried before the Judge of Police, who found her not guilty of the charge. She then brought this action against the defender, alleging that she had been apprehended “at the instance of the defender,” and that the information supplied by him was given “falsely, calumniously, and maliciously, and without just or probable cause.” The defender denied that the information supplied to the police was supplied by him. He averred that he was not in Edinburgh either on the 8th or 9th of October, and did not know or hear of the proceedings complained of till 26th October, between two and three weeks after the trial. The pursuer did not dispute that the defender was from home when she was accused and apprehended, but averred “the said complaint against the pursuer was founded on and proceeded with owing to information given by the defender's wife, who manages his business, and who in giving the said information was acting for the defender and with his authority… . The defender entirely approved of and adopted his wife's proceedings against the pursuer, and the said proceedings were taken in the course of the management of the defender's business, and were within the scope of and in accordance with the mandate or authority under which she was appointed to act as his representative.” She also “explained and averred that the defender's wife and daughter had a general authority from him to manage his business and to do all that he did, and that his wife informed him of what she had done, and that he approved of the accusation being persisted in.”

The pursuer's pleas-in-law were—“(1) The defender having maliciously, and without just or probable cause, caused the pursuer to be apprehended and incarcerated on a charge of theft, to her loss, injury, and damage, is liable to make reparation. (2) The defender is responsible for the actings of his wife and daughter, in respect that he authorised them to do what they did, and has since homologated it.”

The defender pleaded—“(1) The pursuer's averments are not relevant or sufficient to support the conclusions of the summons. (2) The defender should be assoilzied, in respect the information on which the pursuer was apprehended and tried was not given by him nor by his authority.”

The Lord Ordinary ( Rutherfurd Clark) assoilzied the defender. He added the following note:—“The pursuer, who was a servant in the employment of the defender, in substance alleges that the defender's wife lodged with the public authorities a charge of being guilty of theft, and that this charge was made maliciously and without probable cause.

“The main question argued before the Lord Ordinary was, Whether the defender is responsible for the act of his wife, on the ground that he had devolved on her the general management of his business? The Lord Ordinary thinks that the defender is not responsible. He would not be liable for his wife's slander, nor, it is thought, can he be made responsible for any malicious act on the part of his wife. The pursuer has, of course, no case unless she alleges malice.

But the pursuer also maintained that the defender had specially authorised the act of his wife. It is admitted by her that when the charge was made on 8th October, and when the trial took place on 9th October, the defender was absent from home, but while this admission is made, it is said ‘that he approved of the accusation being persisted in.’ The Lord Ordinary was at pains to ascertain from the counsel for the pursuer what he meant to aver, and stated that if a distinct averment were made that the defender knew of the charge being made, and approved of the trial being proceeded with, he would grant an issue. But the counsel declined to make any alteration on the record, and considering that it is admitted that the defender was absent from home when the proceedings took place, the Lord Ordinary is of opinion the statements of the pursuer are too vague to go to trial. The pursuer is bound to make her case clear on record, and her declinature to amend shows that her real case is that which alone was maintained in argument, viz., that the defender is responsible for the act of his wife.

The defender further contended that enough was admitted on record to show that the charge was made with probable cause. There is a good deal to be said in support of this view. But the Lord Ordinary thinks he could not withdraw the question from the jury.”

The pursuer reclaimed, and argued—No doubt it had been decided that by the law of Scotland, unlike the law of England (Odgers on Libel, p. 350), a husband is not answerable for slander by his wife— Chalmers v. Baillie, Feb. 19, 1790, M. 6083, and April 6, 1791, 3 Pat. App. 213. But that case applied to a slander altogether unconnected with the husband's business, whereas the present was not properly a case of slander, but a case of false accusation of a crime, made in the course of conducting the husband's business. The principle of the case of Ludquhairn v. Ear Marischal, 1590, M. 13,982, and of Scott v. Yates, Feb. 20, 1800, Hume 207, is applicable; in that case a married woman who carried on business as a lodging-house keeper with her husband's knowledge, granted an obligation to pay the value of certain articles stolen from a lodger in the house, and the Court found the husband liable on the obligation, as being nearly connected with the object of the wife's prœpositura. The pursuer was entitled to an issue on the general mandate the wife had to conduct the business, and had averred enough in the direction of special mandate to entitle her to an issue on that ground, also leaving the exact communings between the husband and wife for proof in the cause.

Counsel for the respondent was not called on.