How far, in an action of defamation, such questions may be put to witnesses, as have not an immediate relation to the conduct of the parties?
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Helen Douglas, being pursued in an action of defamation and damages, before the Commissaries, by Elizabeth Chalmers, alleged compensation, on account of certain printed writings, of an injurious tendency, ascribed by her to the pursuer; and was allowed to prove, ‘that the pursuer was the author or publisher of the writings, and that she sent the same to the defender; or that she directed, aided, or abetted therein.’
The questions proposed to the witnesses by the defender were, ‘Whether they knew or suspected who was the author or printer of the writings in question, or who paid the expense of printing them; or any person or persons concerned in writing, printing, circulating, or distributing them; and, if they did, to condescend on the name of such person or persons.’
The Commissaries rejected these interrogatories as incompetent; and, in support of that judgment, which was brought under review of the Court of Session, the pursuer
Pleaded; The defence of recrimination could only have arisen from the pursuer's accession to the injury here complained of. It is, therefore, her conduct alone, or that of persons over whom she may be supposed to have influence, which can be made the subject of the present investigation. It is true, that, in criminal judicatories, which are established for the trial of offences of a public nature, an enquiry has been permitted, in the form of precognition, without a reference to any individual. But such a proceeding is altogether unprecedented in Courts of civil jurisdiction, which can inquire into the rights of those only who are regularly brought before them. In this instance, it would be manifestly unjust, the defender being thereby allowed to with-hold the indemnification due by her, until the claims which she chuses to rear up against third parties are brought to a conclusion.
Answered; It cannot be imagined, that the pursuer would herself carry the writings to the printer, or transmit them to the defender, or even would employ in that business those who are immediately connected with her. The proof, therefore, must necessarily be of an indirect nature, ascertaining at first the actual publishers or senders, and thence proceeding, by a gradual investigation, to the persons by whom they were employed. Nor could the pursuer reasonably complain, though its effect were to establish the offence against a third party, which, without any prejudice to her, would enable the defender to obtain a proper reparation.
The Lord Ordinary found, “In regard the injury complained of consists in the pursuer's agency, mediately or immediately, writing, printing, or publishing the writings, and sending the same to the defender, it may be fair to examine the witnesses on such agency in general, or concerning the interposition of particular persons, where there is any presumption that such interposition can be imputed to the pursuer; but finds, that the mode of interrogating witnesses, avowed on the part of the defender, and actually commenced, is irregular and improper, and ought not to be admitted.”
Upon advising a reclaiming petition for the defender, with answers for the pursuer, the Court altered the Lord Ordinary's interlocutor, and repelled the objections to the interrogatories put to the witnesses.
Lord Ordinary, Swinton.Act. Lord Advocate Campbell, Solicitor-General Dundas.Alt. Maclaurin, H. Erskine, Buchan Hepburn, Cullen.Clerk, Orme.
Fol. Dic. v. 4. p. 162. Fac. Col. No 173. p. 270.
