Scottish Court of Session Decisions

In consequence of a squabble between two fleshers at Dundee, named Dick and Small, relative to the possession of a slaughter-house there, Dick raised an action of damages against Small, concluding, inter alia, for a sum of £1500, on account of the personal assault he had sustained, and the defamatory language which had been applied to him.

Dick used arrestment and inhibition to a large extent on the dependence, and Small raised an action of damages against him, alleging that he had wrongously and violently broken into a slaughter-house of which he, Small, had lawful and peaceable possession: that the personal scuffle which ensued arose from Small's being compelled, brevi manu, to defend his possession, and that he had done so with moderation, or, at least, that there had been compensatio injuriarum in the scuffle which was caused by Dick's aggression: and farther, that the diligence of arrestment and inhibition had been nimiously and maliciously used by Dick, to the great injury of Small's credit and trade. He concluded for damages, which were laid at £2000.

In the action at the instance of Dick, the following issues went to trial:—

“Whether, on or about the 10th day of September, 1834, in or near a slaughter-house near the Craig Pier, Dundee, and in the court adjoining thereto, or in one or other of the said places, the defender did violently assault the pursuer, to the loss, injury, and damage of the pursuer?

“Whether, on or about the said 10th of September, 1834, in the shop of the defender in Dundee, and in presence and hearing of Archibald Scott, tanner, Dundee, the defender did falsely and calumniously say that the pursuer was a low fellow, and entitled to be hanged—meaning that the pursuer was a person of bad character, and deserved the gallows—or did falsely and calumniously use or utter words to that effect, to the loss, injury, and damage of the pursuer?”

In the action at the instance of Small, the following issues went to trial:—

“Whether, in a court of slaughter-houses near Craig Pier, Dundee, on or about the 10th day of September, 1834, the defender wrongfully and violently took possession of a slaughter-house then in possession of the pursuer, or wrongfully and violently retained possession of the same, to the loss, injury, and damage of the pursuer?

“Whether, on or about the 6th, 7th, 10th, and 11th days of November, 1834, the defender wrongfully and maliciously caused arrestments of certain sums of money and effects to be used in the hands of certain persons, debtors to the pursuer, or in the hands of certain persons who were not debtors to the pursuer, and used inhibition against the pursuer upon the dependence of an action brought by the present defender against the present pursuer, to the loss, injury, and damage of the pursuer?”

The issues in both actions went to trial together before the same jury. It rather appeared, that, on the one hand, Dick, on a supposed notion of right, had broken up a locked slaughter-house which was in the peaceable possession of Small, and had turned out articles belonging to Small, and had put in some sheep of his own, when Small arrived at the spot, and, in great passion, turned out Dick and his sheep, struck Dick with his hand, menaced him in an alarming manner with an ox cameral, or wooden implement used in the flesher's trade, threw mud and animal filth upon him, and applied the most opprobrious epithets to him. It also appeared that Small was a man in extensive trade, whose credit had been seriously injured by the diligence used by Dick, who had laid arrestments not only in the hands of the banks with which Small discounted his bills, but also in the hands of many persons with whom he had considerable transactions. Dick had also employed offensive language towards Small, but it did not appear that he had struck Small.

In the action at the instance of Dick,