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SCOTTISH_HoL_JURY_COURT

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(1819) 2 Murray 122

CASES TRIED IN THE JURY COURT.

DUMFRIES.

No. 20.

M'Lean

v.

Sibbald.

1819. April 13.

PRESENT, Lord Pitmilly.

Damages for defamation.

An action of damages for defamation.

Defence.—No ground for the action.

ISSUES.

“1 st, Whether, on or about the 9th day of June 1816, the defender did insert; or cause to be inserted, in the Book of Records, or Minute Book of the Kirk-session of Kirkmabreck, a certain paper referred to in the summons, defamatory of, and injurious to, the pursuer, as the act or minute of the

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Kirk-session of Kirkmabreck, without the authority of the said Kirk-session?”

The second Issue was, Whether the defender communicated the contents of the aforesaid writing at sundry times and places to several individuals?

Damages and solatium laid at L.100.

The defender was minister of the parish of Kirkmabreck, and the pursuer one of the elders. Certain differences occurred between them; and the pursuer alleged that the defender got the other elders to sign a certificate, and caused a minute to be inserted in the Kirk-session record, which he considered defamatory.

A witness rejected, having gone with the agent, and been present at the examination of other witnesses.

In this case, a proof had been taken on commission. When one of the witnesses was called, an objection was taken that he had gone with the agent, and had been present at the examination of two witnesses.

Lord Pitmilly.—It is impossible for me to receive the witness.

When the deposition of one of the witnesses who was dead was produced,

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Jeffrey, for defender, objected.—Evidence of what a dead man has said, is only competent after the better evidence is exhausted; and there are two members of Session not yet called. This proof was ex parte, as there was no condescendence, or any intimation that the proof was going on.

Cockburn, for the pursuer.—The defender declined the jurisdiction of the Court, and did not attend. The objection rests on the mere fact of his not being present.

Lord Pitmilly.—I am not aware of the rule contended for by the defender, that all the superior evidence must be first exhausted. If this is competent evidence, I cannot interfere to prevent the pursuer producing it at the time he thinks proper.

In my opinion the evidence is admissible, but liable to observation to the Jury. In the Court of Session it was found that this proof was regularly taken, and therefore I am bound to receive it here. When it was said to be ex parte, all that was meant was, that no one was present on the part of the defender, to cross-examine the witness. It is therefore defective, and liable to this objection.

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When one of the witnesses formerly examined was called, the counsel agreed in opinion, that he was entitled to read his former deposition.

A witness examined on commission, allowed to read his deposition before being examined.

Before closing his case, the pursuer gave in the process in the Court of Session.

Jeffrey.—The pursuer must close his case.

Lord Pitmilly.—If he wishes to have any passage read from the process, he ought to point it out.

Jeffrey.—This is a case not to get reparation for a real injury, but an attempt to gain a victory. If the paper was improperly inserted in the minutes of the Kirk-session, it was done by a regular meeting of the Session; and being an ecclesiastical offence, cannot be corrected in the civil court. The only point of any importance therefore is, whether he fabricated it; and if you find for the pursuer on this, you must then consider whether it is libellous.

Cockburn.—We are only anxious for a verdict in vindication of character—not for high damages. We do not accuse the defender

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of forgery, but that he caused this to be inserted without authority.

There is no question here, whether the defender has suffered damage, as he has a separate action.

We wish a verdict as a ground for the Church Court ordering this to be erazed.

Lord Pitmilly.—At an early stage in this cause in the other Court, I expressed a desire, that it should be settled out of Court. But the parties were entitled to judge for themselves; and our duty now is, to decide it, with reference to the justice of the case—not to which party was right or wrong in continuing the discussion.

The only points in this case are contained in the Issues. There is no question of forgery: it is only whether this paper is injurious, and was inserted without authority.

On the first question you will judge whether you can doubt that the paper is injurious. On the second, whether it was inserted in the minutes, without the authority of the Kirksession, there is evidence on both sides.

The paper consists of two parts; and you must decide whether the part which appears objectionable, was approved of by the Session.

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If you think it injurious, and that it was inserted without the authority of the Session, then the justification flies off.

2 d Issue.—It appears that the contents of this minute were shewn to several of his brethren, but it was not extensively circulated.

If the defender inserted the minute without authority, it was certainly blameable; but neither party come off well; and we have seen a great deal too much temper in this case.

“Verdict for the pursuer, damages 1s.”

Counsel: Cockburn, Maitland, and Hamilton, for Pursuer.
Jeffrey and Ivory for Defender.

There was a counter action by the defender in the above case, against the pursuer. It had been agreed that the same Jury should try both cases. No additional evidence was produced in the second case, but it was opened on both sides; and after the reply for the pursuer, Lord Pitmilly, shortly stated the case to the Jury, who returned a verdict for the pursuer, damages 1s.

Counsel: Jeffrey and Ivory for Pursuer.
Cockburn, Maitland, and Hamilton for Defender.

1819