Scottish Court of Session Decisions

Mrs Duffus, the proprietrix and occupant of a hotel in the Guestrow in Aberdeen, held a certificate and Excise licence to carry on the hotel for the year from Whitsunday 1889 to Whitsunday 1890. She died on 1st October 1889, and after her death her trustees Daniel Mearns and Alexander Cook carried on the hotel, but did not obtain any transfer of the certificate till 22nd March 1890.

On 6th December 1889 the following letter appeared in the Evening Gazette—“In the meantime, Mr Wyness” (superintendent of police) “might inquire into the truth or untruth of the report at present current that an old public-house in the Guestrow is being presently conducted as a shebeen—in point of strict law—waiting the convenience of an ex-bailie and a town councillor, who are both about to become joint-proprietors of the place when a licence has been secured.” The trustees were the persons referred to in the letter.

Alexander Cook thereupon, on 31st December 1889, raised an action for damages for slander, in the Sheriff Court at Aberdeen against Alexander Marr, the publisher of the Evening Gazette, and Henry Gray, a draper in Aberdeen, and writer of the letter complained of, praying the Court “to grant a decree against the above-named defenders, ordaining them jointly and severally to pay to the pursuer the sum of £500 sterling, with interest thereon.” Daniel Mearns also raised actions against Marr and Gray. These actions were conjoined.

The actions so far as directed against Alexander Marr were subsequently settled.

The minute lodged for the pursuers “craved leave to restrict the prayer of the petition in this conjoined action to the effect of withdrawing all claim against the defender Alexander Marr, who has paid to the pursuers a sum of money in settlement of the damages due to them by him, reserving the right of action against the defender Gray.”

The pursuer Mearns in the action against Gray averred—“The pursuer and the said Alexander Cook junior entered into the possession and management of the deceased's estate, and undertook the management of the said hotel in the Guestrow until it could be disposed of by them as trustees. The said hotel was at the date of the death of the said Mrs Duffus and had been for many years duly licensed for the sale of excisable liquors. In particular, Mrs Duffus had in April 1889 obtained a licence for the said premises for the year

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from Whitsunday 1889 to Whitsunday 1890, and the Excise licence had also been obtained by her. On the occurrence of Mrs Duffus's death the Collector of Inland Revenue and the Superintendent of Police were informed of her decease, and that her executors were to continue the conduct of the business until it should be disposed of as aforesaid. The course followed by the pursuer and his co-trustee was in accordance with the usual custom observed in Aberdeen. On the decease of a person holding a licence the executors do not have the certificate transferred to their own names, but look out for a person to whom the business may be disposed, and to whom the certificate held by the deceased may be transferred… . The said letter is of and concerning the pursuer and his said co-trustee, the said Alexander Cook junior, and falsely and maliciously represents that the pursuer and his co-trustee were conducting the said Duffus's hotel in a disreputable manner, and as a shebeen, in the sense in which that word is used in the Public-House Statutes, and that they were doing so in order that they might commit a breach of trust and become proprietors of the hotel after the licence had been attained, and thus purchase for their own use part of the trust-estate under their management, to the prejudice of the trust, or otherwise that they were breaking the law in order that they might dishonourably and discreditably reap a personal benefit therefrom by purchasing the hotel when a licence had been granted. The said statements are false and slanderous.” The averments of the pursuer Cook were substantially the same.

The defender denied that the words in the letter were libellous, or would bear the construction that the pursuers were about to commit a breach of trust, and stated that the allegation that they were conducting a shebeen was in substance and fact true.

He further pleaded that the pursuers having already accepted compensation for, and discharged their claim in respect of the alleged libel, were not entitled to insist in the present action against him.

The interpretation clause of the Public-Houses Amendment Act 1862 defines a “shebeen” as meaning and including “every house, shop, room, premises, or place in which spirits, &c., or excisable liquors are trafficked in by retail without a certificate and Excise licence in that behalf.”

The Sheriff-Substitute ( Brown) allowed a proof, and thereafter on 16th December 1890 pronounced the following interlocutor:—“Finds in the conjoined actions—(1) that the letter complained of, is of and concerning the pursuers, and was written by the defender Henry Gray; (2) that by said letter the pursuers, as trustees and executors of the late Mrs Duffus, were held up to public reproach as conducting the hotel in Guestrow, formerly occupied by her, as a shebeen, or as unlicensed premises, and otherwise as a disreputable house, the said premises being duly licensed when said letter was written, and being lawfully carried on by the pursuers without objection from the magistrates or the licensing authorities, according to an existing practice; (3) that by said letter the defender further said of and concerning the pursuers that they were so conducting the said premises ‘waiting the convenience of an ex-bailie and town councillor, who are both about to become joint-proprietors of the place when a licence has been secured,’ meaning thereby, that the pursuers were about to purchase the trust-estate under their care and management to the hurt and prejudice of said estate, and to their own benefit: Finds that the defender, having thus slandered the pursuers, is liable to them in damages: Finds that the conclusions of the conjoined actions so far as directed against the defender Alexander Marr have been withdrawn, under a settlement made with him: In terms of the minute of restriction assesses the damages to be paid by the defender, the said Henry Gray, to the pursuers, at the sum of £50; and decerns against the defender for payment to each of the pursuers respectively of a sum of £25, with interest from this date.”

And on appeal the Sheriff ( Guthrie Smith) on 4th March 1891 adhered and dismissed the appeal.

The defender appealed to the First Division of the Court of Session, and argued—There was here no slander. A transfer of the licence and certificate was required—6 Geo. IV. c. 81, sec. 21; 9 Geo. IV. c. 58, sec. 19—and therefore in the statutory sense affixed to the word by the writer the place was a shebeen—25 and 26 Vict. c. 35, secs. 17 and 37. The letter would not bear the innuendo of breach of trust put on it by the pursuers. The pursuer Cook, by concluding against both defenders, jointly and severally for the same sum of money, had treated the alleged wrong as a joint one, and was now barred from dividing it— Barr v. Nicolsons, March 20, 1868, 6 Macph. 657, and Taylor v. M'Dougall & Sons, July 15, 1885, 12 R. 1304, and he could not therefore after settling with one defender proceed in his action against the other. In case Mearns had recovered against Marr—and such a result might have ensued— Brims v. Reid & Sons, May 28, 1885, 12 R. 1016; and Browne v. M'Farlane, January 29, 1889, 16 R. 368—such a decision would have released the defender Gray, and a settlement had a like effect—Stair, i. 9,5; Mayor, &c., of Salford v. Lever, 1891, 1 Q.B. 168; Brinsmead v. Harrison, L.R., 7 C.P. 547. The circumstances of the Western Bank v. Baird were different.

The pursuers argued—The word “shebeen” was not confined to the sense of 25 and 26 Vict. c. 35, sec. 37. It bore an opprobrious meaning in ordinary language, and must be so construed— Capital and Counties Bank v. Henty, Law Rep., 7 App. Cas. 741. The hotel was licensed at the date of the letter. It was only the certificate which had fallen by death, and that only required the ministerial act of two justices of the

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peace to transfer it. The letter fully bore the innuendo put upon it. In the settlement the pursuers had reserved all their right of action against the defender Gray, and he was not released by it— Western Bank v. Baird, March 20, 1862, 24 D. 859, per Lord Benholme. The pursuers had not received full satisfaction in their settlement with the defender Marr, and their right of action against Gray therefore remained— M'Nacht v. M'Ghie, in voce Discharge, 3546. The cases of Barr v. Taylor fell to be distinguished. Here the pursuer Cook would have been entitled to separate issues against each defender— North British Railway Company v. Leadburn Railway Company and Waddell, January 12, 1865, 3 Macph. 340.

At advising—