The following issue was proposed by the pursuer, and by interlocutor of 19th March adjusted and approved by the Lord Ordinary"Whether, on or about 16th October 1884, the defenders printed and published in the John O'Groat Journal the letter printed in the schedule hereto annexed? And whether the said letter is in whole or in part of and concerning the pursuer, and falsely and calumniously represents the pursuer as a person who had been unfaithful to the public trust reposed in him as Dean of Guild of the royal burgh of Wick, and had in his municipal position acted corruptly for his personal benefit, to the pursuer's loss, injury, and damage? Damages laid at £1000."

The schedule contained the letter printed above.

The Lord Ordinary disallowed a counter-issue proposed by the defenders, and putting the question "Whether the statements in the said letter are true?"

"Opinion.-I was of opinion that the letter complained of, and particularly that part of it which relates to the pursuer's actings as Dean of Guild in regard to the roadways forming approaches to the Gaelic Church, Alexandra Place, and Macleay Lane, support an innuendo that he had been unfaithful to the public trust reposed in him, and had acted corruptly for his own personal benefit. I therefore held that an issue must be allowed.

'(2) On the question whether the pursuer was bound to take an issue averring malice, I was of opinion that a newspaper is not privileged in such comments, as a ratepayer is in discussing the claims of a candidate for public office at a public meeting held for the purpose of considering the claims of candidates. A newspaper in publishing such a letter acts purely as a volunteer, and takes the responsibility of one who publishes a statement without any call to speak on the subject. It was admitted that in no instance has a pursuer of such an action been compelled to take an issue of malice, and it appeared to me that there is no principle for the contention that malice must be put in issue. In giving this opinion I do not question the right of newspapers to comment upon the public acts of public men. But that right, in my opinion, does not extend to uncalled-for attacks upon character.

"As to the counter-issue, I had no hesitation in disallowing it. No example of a counter-issue in which it is not proposed to justify the alleged libel was alleged to exist. The defenders admitted that they did not by their proposed counter-issue offer to prove that the pursuer had applied public moneys to roadways which did not require attention, or required attention only because his properties in that neighbourhood gave him an interest in making good the access thereto."

The defenders moved the Court to vary the issue by the insertion of the word "maliciously" so that the issue would run, that the letter "falsely, calumniously, and maliciously represented the pursuer," &c. They also reclaimed against the interlocutor disallowing their issue.

Argued for them-This was a case of privilege. It was the case of the newspaper comment upon the public character of a public man who was offering himself for re-election to a public office; the letter complained of did not exceed

the limits of fair criticism; the pursuer was bound in such a case to prove malice, and it should be put in issue.

Authorities-Drew v. M'Kenzie, February 28, 1862, 24 D. 649; Sharp v. Auld, July 14, 1875, 2 R. 940; Docharty v. Coghill, October 18, 1881, 19 S.L.R. 96; Odger v. Mortimer, 28 Law Times, 472; Weyson v. Walter, L. R. 4 Q. B. 73.

Argued for respondent-There was no privilege in the case of anonymous writings, nor was there any privilege which allowed a newspaper to attack the private character of an individual. There was no case in which, when a newspaper was brought into Court the pursuer had to insert the word "maliciously" in the issue-Dun v. Bain, 4 R. 317. Public character might be atThe tacked but not private moral character. editor took the place of the anonymous writer in refusing to disclose his name. If the writer of the letter was known, and the action was directed against him, malice would not require to be put in issue. So in an action against the publisher of the anonymous letter who takes all the author's responsibilities, the pursuer should not be called on to aver malice.

Authorities--Miller v. Robertson, December 2, 1852, 15 D. 170; Macdowall v. Guthrie, June 25, 1853, 15 D. 778; Spotiswood v. Campbell, 32 L.J. Q.B. 185.; Alexander v Macdonald, 4 Murray, Jury Reports, 94.

At advising

LORD PRESIDENT-There are two questions raised by this reclaiming-note; one is with regard to innuendo put by the pursuer on this letter, and as to that I do not think any of your Lordships have any doubt that the innuendo was justified, looking to the terms of the libel complained of and the circumstances alleged. The proposal as to a counter-issue is really absurd, and I need say no more about it. The point mainly urged by the defenders is that this issue should put the question to the jury not only whether this letter falsely represented the pursuer to be a person unfaithful to the public trust, but that he should also undertake to prove that the letter was malicious-that the making of the statement contained in that letter was maliciously done. Now, it appears to me that whatever might have been the question had this been a statement made in an editorial article, the fact that it was made in an anonymous letter is quite sufficient decision of the point. may be a certain protection to a newspaper in criticising the acts of public men, but there is a great deal of delicacy in defining what that privilege is, and perhaps also in defining the class of public men, and perhaps further still in defining the kind of accusation that may be brought against the conduct of public men, distinguishing, of course, between what they do as public men and what they do as private individuals. The Court is relieved, however, from all these difficulties in the present case. The libel complained of was contained in an anonymous letter addressed to this John O'Groat Journal. Now, the editor of the newspaper declines to disclose the author of the letter, and the effect of that in point of law is in my opinion, not that we are entitled to deal with that letter in the same way as if it had appeared in a leading article of the paper, or in any part of the paper

There

, Reidet

28

in which the editor speaks for himself, but that the position is that the editor accepts the whole liability of the anonymous author-every liability that can be brought against him if he had been disclosed. Therefore the real question is, whether there is any necessity for the pursuer putting malice into his issue, the action being one against a person occupying the same position as the anonymous author himself. Suppose this letter had been signed, there might then have been a question whether the person who wrote the letter had any right to deal with this subject at all, or to concern himself about it, or speak or write about it. All that could have been open for inquiry, but we are precluded from all inquiry into that because the name of the writer is suppressed. We cannot ascertain what interest the writer of the letter had in the matter he was discussing, nor can we say whether he was a ratepayer in Wick, was ever in Wick, or was even a British subject-indeed, he is a mere umbra. But he was somebody, and that somebody has libelled the pursuer, and is not in a position to justify that libel, and is not in a position to say that he has individually any sort of protection or privilege in the matter. That seems to me to be the conclusion of the whole question. If it is pleaded in point of law that when the editor of a newspaper rather than disclose the name of an anonymous contributor chooses to defend him in his own person, he is thereby entitled to maintain that what has been done is the same thing as if the attack had been contained in a leading article, then, I say, that is an entire mistake in point of law. When a newspaper editor or publisher declines to disclose the name of an anonymous contributor he puts himself in the position of saying, "We must submit to everything you can possibly bring against us in the way of liability, as if this had been a letter written, not in the newspaper at all, but written by one of ourselves, and printed in a separate form, and posted on the walls of the town." That is to say, the proprietor and the editor can be in no better position in this question than the anonymous author. The anonymous author is the person who is primarily liable, and if this article which was written by him was written by him maliciously, it is conceded on the part of the defenders that would subject the newspaper in damages; but how is it possible to prove malice on the part of a person one does not know? How can it be proved that the person who signed the letter was actuated by malice, or how can anybody prove the reverse? Yet that is one of the questions proposed to be put before a jury. On the whole matter, I have come to the conclusion that in the case of an anonymous letter there is no necessity for the pursuer proving malice.

LORD MURE concurred.

LORD SHAND-If this question had arisen out of an editorial article, or out of an article or letter commenting upon the public life and character of the pursuer, I should have had more difficulty with the case, but in the special circumstances I think with your Lordship that malice should not be inserted in this issue.

We know nothing about the writer of this

VOL. XXII.

FIRST DIVISION.

[Lord M'Laren, Ordinary.

STIVEN V. FLEMING. Process-Expenses-Bankrupt─Caution for Expenses where Fraud Alleged-Reduction.

In an action of reduction of a disposision on the ground of fraud, the Lord Ördinary, in respect of the bankrupt defender's failure to find caution for expenses, decerned against him conform to the reductive conclusions of the libel. His trustee did not appear in the action. On a reclaiming-note

for the defender the Court recalled this interlocutor, and found (following Buchanan v. Stevenson, Dec. 7, 1880, 8 R. 220) that the general rule in such cases was that a defender was not obliged to find caution for expenses of process, and that here the bankrupt's character being assailed, the rule should be applied.

Counsel for Pursuer-J. P. B. Robertson-Law. Agents-Rhind, Lindsay, & Wallace, W.S. Counsel for Defender-Nevay. Agent-R. Broatch, L.A.

that under his father's will he had no power to make such a conveyance. Held that he was entitled to sue the action without finding caution for expenses.

On 27th July 1864, John Rogerson, who possessed considerable landed property in Wamphray, Dumfriesshire, died leaving a trust-disposition and settlement dated 7th December 1859. By this trust-disposition and settlement he left certain lands to his trustees, for the purpose of receiving the rents thereof and dividing them equally between two of his sons. He also declared that neither of his sons should have power to sell the lands or to burden them with debt, nor should the lands or rents be attachable by creditors, nor should his sons have power to assign the rents or produce of the lands except by way of provision in a marriage-contract. In 1878 the affairs of John Kirkpatrick Rogerson, second son of the truster, and one of the sons between whom the said rents were to be divided, became embarrassed and his estates were sequestrated. John Rorrison was appointed trustee in the sequestration. Shortly after the sequestration-a difference having arisen as to whether the interest of Rogerson in his father's estate fell under the sequestration — Rogerson executed an assignation in favour of Rorrison as trustee, whereby he assigned to him all the rents and sums of money that might become payable to him out of the lands left for that purpose by his father's trust-disposition. The trustee allowed the bankrupt an alimentary provision, and applied the surplus income to the reduction of his debts.

Rogerson and his wife and children raised this action for reduction of the assignation to his trustee, on the ground that it was ultra vires of him to grant such an assignation, and in contravention of the trust-disposition and settlement under which he had acquired right to the rents as an alimentary provision.

The trustee on the sequestration lodged defences and pleaded-"(2) The pursuer Joseph Kirkpatrick Rogerson being an undischarged bankrupt, ought to be ordained to find caution for expenses.

Argued for pursuer-The question of caution is one within the discretion of the Court. In the case of an undischarged bankrupt caution is not always necessary, and the circumstances of this case were exceptional. The action was against the trustee, to reduce the conveyance to the pursuers' funds-Ritchie v. M'Intosh, June 2, 1881, 8 R. 747.

The Lord Ordinary refused to order the pursuer to find caution.

"Note.-If this had been the case of an undischarged bankrupt suing the trustee in his sequestration, on the ground that a surplus remained out of his estate after his debts had been paid, I should have ordered him to find caution, because I could not give any sanction to a custom which would enable any bankrupt to put pressure on his trustee. But here although the pursuer has been sequestrated, that does not seem to have been considered enough to put the trustee in possession of his estate, and the trustee has accordingly come into possession of the bankrupt's property by a voluntary assignation. I think that I have sufficient authority to enable me to dispense with caution, and I do so the more readily on the ground that

MACLEOD V. INLAND REVENUE.

Revenue-Stamp Act 1870 (33 and 34 Vict. cap. 97), secs. 70, 71-Conveyance or Transfer other than a Conveyance or Transfer on Sale-Dissolution of Partnership—Conveyance of Partnership Estate.

On a dissolution of partnership an instrument was executed by the two partners whereby, after narrating the agreement for dissolution, the whole assets of the company were assigned to the continuing partner, with one exception, in consideration of the payment to the retiring partner of the sum of £8931, 10s. 5d., being his full share and interest as a partner in the assets of the company. The exception from the conveyance to the continuing partner was a bond and disposition in security for £8000 granted in favour of the firm, which was of even date assigned to the retiring partner, and, together with a payment in cash of £931, 10s. 5d., made up the foresaid sum of £8931, 10s. 5d. Held that the instrument was liable to the stamp-duty chargeable on a conveyance or transfer other than a conveyance or transfer on sale, and was not liable to the ad valorem stamp-duty chargeable on a conveyance or transfer on sale. This was a Case stated by the Commissioners of Inland Revenue under the Stamp Act 1870 (33 and 34 Vict. cap. 97) at the request of William MacLeod to enable him to appeal to the Court of Exchequer.

The facts out of which the present question arose were as follows:-William MacLeod and John Wilson were the individual partners of the firm of William MacLeod & Company, metal merchants, Glasgow, and had carried on business for some time in partnership. In March 1884 they came to an agreement, which was embodied in an instrument titled an assignation dated 14th October 1884. This instrument was granted by William MacLeod & Company, metal merchants, founders' factors, and contractors in Glasgow, and William MacLeod, metal merchant, founders' factor, and contractor in Glasgow, and John Wilson, malleable iron tube manufacturer, Glasgow, the individual partners of the said company of William MacLeod & Company, not only as partners, but as trustees for their company, at the request and with the special advice and consent of the said John Wilson, as a partner and as an individual, and the said John Wilson for his own whole right and interest as partner, trustee, and as an individual, and they all of joint consent and assent.

The consideration upon which the instrument was granted was that "the said William MacLeod

v. Inland Revenue

2, 1885

and John Wilson have agreed to dissolve their said company as upon the 31st day of March 1884, and also arranged that the said William MacLeod should acquire the whole property and assets of the company (except as after mentioned) upon payment to the said John Wilson of the sum of £8931, 10s. 5d., being his full share and interest as a partner in the whole property and assets of the company, and that William MacLeod has made payment to the said Jolin Wilson of the said sum of £8931, 10s. 5d., in manner set forth in the minute of agreement and dissolution to be executed after delivery, but of same date."

The instrument then went on to assign_and make over to and in favour of William MacLeod as an individual, and his heirs, executors, and successors, the whole estate, property, and assets of the firm of William MacLeod & Company.

The property excepted from the assignation and conveyance was (1) The sum of £8000, and the real lien and burden for payment thereof, interest and penalties, constituted by disposition of said William MacLeod and John Wilson, as trustees of their said company, in favour of Francis Spite and Thomas Speirs, as trustees for their company of Francis Spite & Company, of certain heritable subjects. (2) Bond and disposition in security over said heritable subjects for said sum of £8000 granted by Francis Spite & Company, and Francis Spite and Thomas Speirs as partners of and trustees for the said Francis Spite & Company, and as individuals, in favour of the said William MacLeod and John Wilson, as trustees for their said company, sums of money and subjects therein contained, and which real lien and burden, and bond and disposition in security were, of the date of said assignation (by a formal assignation which has been adjudged duly stamped), assigned to the said John Wilson as part payment of the foresaid sum of £8931, 10s. 5d.

This instrument was presented by the agents of William MacLeod to the Commissioners of Inland Revenue, with the request to have the opinion of the Commissioners as to the stamp-duty with which it was chargeable. The Commissioners were of opinion that the transference of the said John Wilson's interest in the assets and business of the firm of William MacLeod and Company was of the nature of a sale, and that such interest was by the said assignation legally or equitably transferred to or vested in the said William MacLeod, in consideration of the said sum of £8931, 10s. 5d., paid or to be paid or accounted for to him the said John Wilson. The Commissioners accordingly assessed the ad valorem conveyance on sale duty of £44, 15s. upon the assignation, in respect of this sum, and the instrument being already stamped with the duty of 10s., they required payment of the further sum of £44, 58.

William MacLeod thereupon paid the further sum of £44, 5s., but declared himself dissatisfied with the determination of the Commissioners, on the ground that the transaction in question was not of the nature of a sale, but a partition or division of company property, on a dissolution of the company, between the partners therein, and that the deed was already sufficiently stamped, and required the Commissioners to state a Case.

The questions for the opinion of the Court were "Whether the said instrument was liable

to be assessed and charged with the said ad valorem conveyance on sale stamp-duty in terms of the Act 33 and 34 Vict. cap. 57? Or, if not, What other stamp-duty it was liable to be assessed and charged with?"

The provisions of the Stamp Act which bear on the case are the schedule and sections 70 and 71.

Argued for MacLeod-This was a case of "partition" not of "conveyance on sale." The two cases relied on by the other side, of Christie and Phillips, were not in point, and were decided with reference to a different statute, 13 and 14 Vict. cap. 97; Henniker v. Henniker, 22 L.J., Q.B. 94;' Anderson v. Inland Revenue, Oct. 19, 1878, 6 R. 56.

Argued for the Commissioners of Inland Revenue-This was a sale of assets to the remaining partner, not a winding-up. The remaining partner had simply bought out the other in consideration of the sum stated. The present case was the same as Christie v. Inland Revenue, L.R., Excheq. 46; and Phillips v. Inland Revenue, L. R., 2 Excheq. 399; Potter v. Inland Revenue, 10 H & G. 147, 23 I..J., Excheq. 345.

At advising

LORD PRESIDENT-The question for the determination of the Court in this case is, whether the conveyance of which we have an abstract in the Case itself is a conveyance upon a sale? and it certainly would seem natural when such a question is put to the Court that the antecedent contract in pursuance of which this conveyance is granted should be laid before the Court either in full or in abstract. But although that has not been done, I think we may sufficiently gather from the terms of the conveyance itself what that antecedent contract was in all essentials. It appears that two persons of the name of MacLeod and Wilson had carried on business in partnership for some time under the firm of MacLeod & Co., metal merchants, founders, factors, and contractors in Glasgow, and that they had come to an agreement in March 1884 to dissolve the partnership; and following up that resolution to dissolve, an arrangement was made for disposing of the property and assets of the firm. The one partner, MacLeod, apparently intended to carry on the business, while the other partner, Wilson, was minded to retire. And accordingly a portion of the company property which was necessary for the carrying on of the trade was to be left in the hands of MacLeod, but another portion of the property which was not of that description was to be assigned to the retiring partner, Wilson. In short, the company property was to be divided into two parts. What may be called the trade property-that which was necessary for the carrying on of the business-was to be left in the hands of the continuing trader, and that portion of it which was an investment in security was to be handed over to the retiring partner. That seems to me to be the substance of the transaction. Now these two portions were not equal in amount. The total value of the property estate was £17,863; for although these figures are not given in the Case, we see that that must have been the amount, because the sum of £8931, 10s. 5d. is declared to be the full share and interest of one of the partners of the company, and it is not suggested that the interests of the two partners of the company were anything else but equal. So that the total value

of the company property must have been £17,863, Os. 10d. The portion of the property given to the retiring partner consisted in the main of an heritable security-a bond and disposition in security for £8000; and if the total value of the company property had been £16,000, that would have afforded a very easy and simple mode of dividing the estate between the two partners. One would have taken £8000 in value, in the form of a heritable security, and the other partner would have taken all that remained, being of the same value of £8000. But as the value of the company property was somewhere about £1800 more than £16,000, it became necessary to provide for the division of that sum also. And accordingly the consideration of this deed of conveyance is in the first place the bond for £8000, which has been by a separate deed of even date with this conveyed to Wilson, and the equalising balance of £900 odds which is paid in cash by the company or MacLeod. Now, that being the nature of the transaction, in execution of which this conveyance was granted, the question to be decided is, whether that transaction is a sale; and it appears to me that it is not a sale, but that it is a division of the company's assets, and nothing else. It is almost impossible to divide a company's assets-without realising them and converting them into money— in perfectly equal shares by mere conveyance, and therefore in such a division there probably always will be some balance to be paid on one side or the other in the shape of money, and it happens here that the bulk of the share which goes to Wilson is in the form of the heritable security which I have mentioned, and the balance in both happens to be £900. Now, I cannot liken thɛt to a sale. The two partners were joint proprietors of the stock and assets of the company; and when one portion of that property is taken in forma specifica, and assigned to the one partner, with the addition of £900 in cash, and the remainder is left in the hands of the other partner to carry on the business with, that seems to me to answer all the description and all the requisites of a partition or division. And therefore I come to the conclusion that this is not a conveyance upon a sale, because by a conveyance upon a sale I understand of course a conveyance which requires to be executed in order to carry into execution an antecedent contract of sale. I should have thought this all clear enough; but some doubt was thrown upon it by a citation of two cases which were decided in the Exchequer Court of England in the year 1866-the case of Christie v. The Commissioners of Inland Revenue, and a subsequent case of Phillips, both contained in 2 Exchequer Reports for that year. The second case does not require any particular consideration, because it follows as a matter of course upon the first; but the first case certainly requires some attention, and it appears to me that it differs from the present in a very essential respect. In that case there were three partners carrying on business, and one of them desired to acquire the whole company property in order that he might carry on the business alone, the other two being minded to retire. And he agreed accordingly with his copartners that he was to retain the whole company estate, and that he was to pay for that estate a sum of £110,000, paying down £10,000

in cash and granting a security over a portion of the company property for the remaining £100,000. Now, that is as different as can be from the present case, just in the important particular in which a division is distinguished from a sale. The retiring partners in that case got no portion of the company estate whatever, whereas here Mr Wilson obtains a subject-onehalf of the company estate, of the value of £8000. No part of the company estate in Christie's case was retained or given to either of the retiring partners. What they got was cash and nothing else—cash or its equivalent in a security for money. And therefore I do not think we are at all embarrassed by the decision of the Exchequer Court in England in the case of Christie. I think the case of Christie perhaps raised a question of some little nicety in itself, and I do not desire to give any opinion upon it or to intimate the slightest reason to differ from the view which the English Exchequer Court took in that case. Indeed, I think, the general principle upon which the Chief-Baron proceeds there is just that which I am proposing to adopt in the present case. He says:-"In all these cases it appears to me that the substance of the transaction is alone to be considered upon the question whether the instrument is liable to the stamp-duty under the statute, and the substance of this transaction collected from the pleas certainly seems to me to be a sale by Mr Black to Mr Christie of Mr Black's interest in the partnership property for the sum of £110,000." That is exactly the view I take of the present case also, and the present, I think, differs from it just in that very respect which constitutes the distinction between a sale and a division. And therefore I am of opinion that this deed does not require to be stamped with an ad valorem stamp, as upon a conveyance of sale, but that it falls under the ordinary stamp-duty of ten shillings for a conveyance or transfer of a kind different from a conveyance on sale.

LORD MURE-I have come to the same conclusion. What we have to consider is, what is a conveyance on sale? Now, it appears to me from the information laid before us in this case that what took place between these two partners was not a conveyance on sale, in substance or even in form. It was a division of a copartnery estate between the two partners of a firm upon the dissolution of that firm, and the arrangement was that each partner should get one-half of the property belonging to the firm, and which at that time as a partner of the firm, in one sense of the word, belonged partly to himself. Now, that of course required the transfer to the respective partners of the share of the company's estate which was to belong to him as an individual after the dissolution of the company, and in the present case what actually took place was this, that Mr Wilson, one of the partners who was no longer to go on with the business under that arrangement, had transferred to him an £8000 bond, mentioned in the case as part of his share of the property, and that the difference between that £8000 and the £8931, which was the half of the value of the company's estate, was paid over to him in cash. He having thus got his share, one-half of the company's estate, Mr MacLeod, the party to this case, on the other