(1785) 3 Paton 26
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Veritas Convich — Relevancy of Do. — Defamation. —
In an action of damages brought for defamation of character, where the veritas convicii was pleaded in defence, but chiefly founded on rumours and reports of mala fama. Held, that this was irrevelant to go to proof, and a special condescendence ordered of the particular acts. A condescendence having been given in, it was objected to it, that it was too general, vague, and indefinite in its terms,—that it did not set forth any specific act of adultery, which was the crime with which the pursuer had been defamed. The objection was sustained to the effect of ordering the defenders to give in a more articulate condescendence of the several facts they offered to prove, as well as the time and place, and a list of witnesses by whom they meant to
prove such articles. On appeal, this interlocutor was adhered to in the House of Lords.
This was an action of damages, raised at the instance of the respondent, before the Commissaries, for defamation of character, against Mrs. Baillie, the appellant. The defence stated by the latter was the veritas convicii, grounding her allegations upon the general rumour, report, and bad name entertained of her within the town of Musselburgh.
July 17, 1783.
Aug. 9, 1783.
A long discussion took place before the Commissaries, as to the relevancy of such statements to go to proof; it being objected, that there was no relevancy in the offer to prove public report and common fame; but that a condescendence of special facts must be given in, and of such special facts as parties can join issue in. The Commissaries held the defences irrelevant; and ordered a proof of the pursuer's libel. The case was then brought before the Court of Session by bill of advocation, in which the appellant contended, that as the (pursuer) respondent had stated in her libel, as a quality of the offence charged against the appellant, that it was committed against a person who had maintained a virtuous reputation, and as this went to the very issues of the charge, it was necessary that the appellant should be allowed to traverse that material part of the libel, by proving the reports and common belief of the respondent's having no reputation to lose. Lord Monbodo reported the case to the Lords, and, upon their instructions, refused the bill of advocation.
The appellant was then forced to give in a condescendence of the special facts upon which she grounded her defence. The condesendence set forth, that “the pursuer, Mrs. Scott, had carnal dealings with a man or men, different from her husband, at different times, and in different places, in each of the years, from the year 1750 to the year 1770, both years inclusive; and upon all, or one or other of the days or nights of these years, within her own house in Musselburgh; and the house and garden in Fisherrow, sometime belonging to her uncle, George Chalmers, writer to the signet deceased; the park called Pinkie Park, and in other houses and places in and about the city of Edinburgh, towns of Leith, Musselburgh, Fisherrow, and Dalkeith, and the towns of Perth and Dunkeld, and that neighbourhood. 2. That during the period above mentioned, the pursuer and a man or men, different from her husband,
June 7, 1784.
The case having again come before the Commissaries upon this condescendence and offer of proof, they found “the proof offered irrelevant, and refused the same.” On advocation of this interlocutor, Lord Braxfield refused the bill; and on reclaiming petition to the whole Lords, the Court, after full discussion, “ordained the appellants (defenders) to give in a more distinct and articulate condescendence of the several facts they offer to prove, and a list of the witnesses by whom they mean to prove each article to be condescended on.”
Feb. 22, 1785.
A condescendence was then given of the special acts, accompanied with the names of such witnesses as had then come to her knowledge.
Mar. 10, 1785.
After some discussion on the condescendence, and particularly on the necessity of condescending on the names of
Against these interlocutors the present appeal was brought to the house of Lords.
Pleaded for the Appellant.—1. The respondent's libel expressly sets forth as an aggravation, and indeed the very essence of the offence charged against the appellant, that “Defaming and calumniating any person or persons in their good name, character, and reputation, giving them and their families opprobrious and reproachful names and epithets, tending not only to lessen their esteem and respect in the opinion of all their neighbours and acquaintances, but also to disturb the quiet and peace of such persons in their families at home, by being hurtful to, and inconsistent with the connection of husband and wife, are crimes of a most attrocious and heinous nature, and by law severely punishable; and more especially, when such crimes are committed against persons who have maintained a virtuous reputation.” The libel also sets forth, “That the expressions used by the appellant were false, injurious, and defamatory, and that the appellant did otherwise insult and defame and scandalize the respondent.” The amount of the charge therefore is, that the stories alleged to have been mentioned by the appellant to the respondent's prejudice, were not only false, but malicious, invented, devised, and circulated by the appellant with a malicious intention to deprive the respondent of an unblemished fame and reputation, which she formerly possessed; the two facts upon which the relevancy of the respondent's libel entirely depends, are her own unblemished fame and reputation, and the appellant having been the malicious inventor of the
Pleaded for the Respondent.—1. Because the appellant's first plea in defence, that she only repeated what she had heard from common report, was most justly repelled by the Court as irrelevant; and the proof offered that there were reports unfavourable to the respondent's character was properly refused. Such evidence must ever be contradictory and unsatisfactory, and it would be a disgrace to any court of justice to hear it. It can be no justification of a slanderer that other persons were equally guilty: besides, the charge against the appellant is not her having said that she had heard from others, or the common fame did so and so report the respondent, but that she roundly asserted facts most injurious and defamatory, as if they had consisted of
After hearing counsel, it was
Ordered and adjudged that the appeal be dismissed, and that the interlocutors complained of be affirmed.
Counsel: For the Appellants,
For the Respondent, Ilay Campbell, Wm. Adam.