Scottish Court of Session Decisions

The Clydesdale Horse Society was incorporated under the Companies Acts of 1862 and 1867. Its objects were the preservation of the purity of breed of Clydesdale horses, and the promotion of the interests of breeders and owners of these horses. The Society published a stud book, and took every precaution that the pedigrees registered in it should be accurate. About January 1883 the Society suspected that the names of certain persons affixed to alleged pedigrees given in to be registered by two brothers named David and Joseph Raeside were forged, and after certain investigations information was lodged with the Procurator-Fiscal of Lanarkshire, who thereafter caused to be apprehended David Raeside and a man named William M'Kinlay, a clerk of the complainer Riddell, on a charge of forging pedigrees.

Joseph Raeside was in America when the charge was made against him, and an application was made for his extradition that he might be brought to this country for trial. In the proceedings for his extradition evidence was led in December 1884 in Chicago before a Commissioner authorised by the District Court to hear extradition cases under the treaty between Britain and the United States. In the course of the proceedings a number of documents were read, and a considerable amount of oral testimony was submitted to the Commissioner.

The Government of the United States ultimately refused extradition, on the ground that the facts brought out in the evidence did not constitute an offence falling within the provisions of the extradition treaty.

At the time when William M'Kinlay was arrested he was a clerk in the employment of the complainer David Riddell, farmer and breeder of Clydesdale horses at Blackball, Paisley, and he had in his possession a letter addressed by David Riddell to Joseph Raeside, and dated 21st November 1883, but which had not been posted to Joseph Raeside.

This letter was enclosed in a sealed envelope. Along with it there was enclosed in the sealed envelope a letter which had been written and addressed to Riddell by John M'Tier, farmer, Ladyfield, Dumfries, dated 16th November 1883.

At the time of his apprehension these letters were taken from M'Kinlay by the Procurator-Fiscal. Copies of them were sent to America and made use of in the proceedings for the extradition of Joseph Raeside, being read by counsel in the course of the case, and being published in the newspapers which had reported all the case. As the society had incurred large costs without having been able to bring Joseph Raeside to trial, it resolved to print a report of the proceedings in the extradition case, including the two letters referred to, for the use of its members, and a print thereof marked “private and confidential,” and “printed for the information of members of the Clydesdale Horse Society of Great Britain and Ireland,” was circulated among the members. It contained copies of the letters found on M'Kinlay.

David Riddell presented this note of suspension and interdict against the Clydesdale Horse Society, and against Patrick Stirling, Esq. of Kippendavie, and Sir Michael Robert Shaw Stewart of Greenock and Blackhall, Baronet, two of the council of the society, and against James Neil Hart, Procurator-Fiscal of Lancashire, praying that the respondents should be interdicted from printing and circulating (1) the two letters above referred to; and (2) the extradition proceedings taken against Joseph Raeside, as the report contained false and calumnious statements against the complainer. He averred that in the proceedings taken in America Mr M'Neilage, the secretary of the society, had appeared and given evidence. He was the author of many of the statements made in the proceedings, which the complainer averred

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contained false and calumnious statements against him. He also averred that the report contained, besides the two letters above referred to, many false and calumnious statements against him.

The Clydesdale Horse Society averred that the whole proceedings which they proposed to print were held in open Court, and the most part appeared in the newspapers of the United States and also of this country. The letters were also printed in several “stock” papers, and were read in Court.

The respondent Hart averred that the letters in question had been handed by him to the complainer's agent in February before the note was presented.

The complainer pleaded that he was entitled to interdict against the proposed publication.

The Society pleaded that they were entitled to reprint proceedings in open Court for the information of their members.

On 25th February 1885 interim interdict was granted.

On 16th March 1885 the Lord Ordinary on the Bills ( Trayner) recalled the interim interdict and refused the note.

“ Note.—The complainer seeks to have the respondents interdicted from printing, publishing, circulating, or making any use of (1) two letters specified in the prayer of the note; and (2) of a report of the proceedings taken in America against Joseph Raeside for the purpose of obtaining his extradition on a charge of forgery and uttering. With regard to the proceedings against Joseph Raeside, it is plain from the newspapers produced that they have already been published both in America and in this country. They were proceedings openly and publicly taken in a court of justice. It is not said that the report of these proceedings which the respondents propose to circulate is garbled or unfair—that anything is reported to have taken place which did not take place, and that anything is reported as taken place otherwise than as actually occurred. In these circumstances I am of opinion that the respondents are entitled to publish, for the information of the members of the society, a report of the proceedings which took place in open court (see Newton v. Fleming, 10th March 1846, 8 D. 677, rev. 6 Bell's App. 175). I would have had more difficulty about the two letters, had it not been that they formed an integral part of the proceedings, were obviously read in open court, and one of them at least is published at length in several of the newspaper reports.

“The subject-matter of the proceedings referred to is one in which the members of the Clydesdale Horse Society have a decided interest, and it appears to me quite legitimate that the council of that society should communicate to the members whatever information it has upon the subject. The form in which it is now proposed to communicate that information does not appear to me such as should be interdicted.”

The complainer reclaimed, and argued—The letters sought to be published were the complainer's private property. One of them was his letter in the hands of his servant, never put out of his power; the other was a letter addressed to him, and was his private property. They were wrongously taken from M'Kinlay. The Sheriff's warrant was to arrest M'Kinlay, not to search him. The letters were confidential—see case of Caddell, June 1, 1804, 13 F.C. 375 The statements contained in these letters were capable of explanation, but if published without explanation they would be prejudicial to the complainer. The secretary of the company was actuated by malice towards the complainer, and the whole publication was intended to damage him. Interdict was competent.

Authorities— Davis v. Miller, July 28, 1855, 17 D. 1166; Short on Copyright, 31; Bell v. Black and Morison, June 28, 1865, 3 Macph. 1026; Fleming v. Newton, March 10, 1846, 8 D. 677; Bell's Notes to Hume, ii. 165; Thomas v. Williams, 14 Ch. Div. 864; Hermann Loog v. Bean, 26 Ch. Div. 306; Thorley's Cattle Food Co. v. Massam, 14 Ch. Div. 764; James v. James, L.R., 13 Eq. 424; Quartz Hill Co., L.R., 20 Ch. Div. 501; Stevens v. Sampson, November 15, 1879, L.R., 5 Ex. Div. 53.

Argued for respondent—The proceedings proposed to be published and circulated took place in open court, and were published in the papers both in this country and America. It was virtually a reprint of these proceedings that the respondents proposed to issue for the benefit of the members of the society. Reports of proceedings in open court were privileged. The question of whether in the circumstances interdict should be granted was one for the Court.

Authorities— Hale, 3 Com. Pl. Div. 319; Lewis, Ellis, Blackburn, & Ellis, 537; Weyson v. Walter, L.R., 4 Q.B. 73; Stevens v. Sampson, 5 Ex. Div. 53; White v. Dickson, July 5, 1881, 8 R. 896; Pritchard, 2 Swanston, 413.

David Raeside had brought a similar process to interdict the proceedings at the extradition of Joseph Raeside.

The Lord Ordinary had also refused the note, and it was arranged that the decision in Riddell's case should rule it.

At advising—