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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Scott v. M'Gavin & Others. [1821] ScotJCR 2_Murray_484 (25 June 1821)
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Cite as: [1821] ScotJCR 2_Murray_484
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SCOTTISH_HoL_JURY_COURT
Page: 484↓
(1821) 2 Murray 484
CASES TRIED IN THE JURY COURT.
No. 66.
v.
PRESENT, THREE LORDS COMMISSIONERS.
Damages for defamation.
An action of damages for defamation.
Defence.—The defender being ready to support by evidence, every statement made by him, waives an objection to the relevancy on the ground of counter-defamation, by the pursuer or his friends.
The pursuer, in this case, is the Roman Catholic clergyman in Glasgow. The present was an action of damages for defamation inserted in the Glasgow Chronicle newspaper; and in three numbers of a publication called
Page: 485↓
The defender asserted, that what he published was true, and there were four Issues on the veritas convicii.
1 st, Whether the pursuer refused to baptise the child of Henry Courtney, a person of the Roman Catholic persuasion, and contributor to the chapel, until he should pay up his contribution; and afterwards refused him confession, because he had not paid it?
2 d and 4 th, Whether he refused to baptise the children of Philip M'Geechie and John Drain, because they were in arrear in their contribution?
3 d, Whether the pursuer applied to two individuals, manufacturers in Glasgow, to retain
Page: 486↓
March 6.
At a meeting for preparing the Issues, previous to the trial,
To entitle a party to prove the truth of libellous matter, he must take Issues on special facts.
J. A. Murray and Moncreiff said—If the statements are not proved false, they are not slanderous, as it is not a convicium to say that a person extorted money. It is merely saying that he obtained it by presenting strong motives. The nature of our defence is, that the statements are true; and we will prove the general fact, and give some instances; but as we have not a diligence, we cannot specify all the instances we shall prove.
Lord Chief Commissioner.—You state the question to be, whether this is slanderous, and you may argue this at the trial; but it is quite a different question, whether you may prove the truth. No doubt you may take away the damage, by proving it not slanderous; but the questions, whether slanderous, and whether true, are quite different. You may shew by argument that it is not slanderous; or you may prove, in diminution of
Page: 487↓
We shall at the trial, but not now, say whether this is a convicium. Suppose a person accused of a heinous crime, it would be incompetent to attempt to shew that the accusation was not slanderous; but it would be competent to prove a general reputation in diminution of damages. But if it is intended to prove the truth of particular facts, they must be specified.
On the Issues for the pursuer, your defence is, that this was general discussion, and not done with a libellous mind. The Issues for the defender are on the supposition that the statements apply to the individual, and that they are libellous, unless they are true.
Page: 488↓
A defender having delayed to amend his answers, not allowed to add new facts to them.
It was then proposed to allow the defender to amend his answers, which was opposed on the ground of the great delay which had taken place.
Lord Chief Commissioner.—We may allow them to fill up the specification of particular cases which they have stated generally, but not to add any new cases.
This was accordingly allowed, and the above Issues in defence given.
When a justification is pleaded, a pursuer may bring evidence upon it, either in chief or in replication.
At the trial, when the pursuer was about to give evidence on the justification by the defender,
Lord Chief Commissioner.—This is perhaps the best stage of the case for us to state what we conceive to be the regular
Page: 489↓
The counsel for the pursuer are quite regular in what they propose to do, and are entitled, if they are of opinion that it is the best course to follow, to produce their evidence on the veritas now; but if they proceed now, they must be aware that this is their whole case, and that they cannot be allowed to mend it, by calling farther evidence in reply. It is not, however, the whole case, so far as the cross-examination, or the veracity of the defenders' witnesses, may be concerned. The Court are at present of opinion, that the pursuer, if he thinks it proper, may reserve his whole evidence on the justification; but we also think it right that he should be aware, that by stopping here, he may be cut out of evidence, which would have been competent if offered in chief. By going into the proof at present, however, he will not afterwards be entitled to meet the defenders' evidence generally.
Mr Jeffrey thanked the Court for this suggestion, and stated it to be their intention to lay a prima facie case on this subject before the Jury.
Page: 490↓
Parol evidence without a certificate of conviction, affords prima facie evidence that a person had been tried and convicted of a crime.
A witness was called, who stated, that M'Geechie had been tried in Scotland seven years ago, and that he was now in Lancaster jail for passing base coin. The witness then produced a certificate of the conviction.
Moncreiff, for the defender.—This is not evidence, and has not been produced before the trial.
Lord Chief Commissioner.—There is a prima facie case without the document.
Circumstances in which a woman was received to swear to her being married to a man who cohabited with another as his wife.
A witness was called, and asked if she was married to John Drain.
Moncreiff.—They gave us no notice of their intention to prove such a fact. They mean to prove Drain guilty of a crime, and to bastardize his child without any certificate of marriage, or calling any witness who was present, or giving notice to Drain, or those interested in the child.
Cockburn and Jeffrey.—We are entitled to prove that he was living in a state of bigamy; and are entitled to hold, that that was the reason of the delay in baptising his
Page: 491↓
Lord Chief Commissioner.—The competency of evidence depends on the nature of the question to be proved. In the present case, the question is, Whether baptism was refused to the child of John Drain, until his subscription was paid? We have it in evidence; and it is common sense, though it had not been in evidence, that it would be a ground for delaying to baptise a child, that it was the child of a woman, not the wife of the person who presented it. If a woman, not the mother of the child, comes to a clergyman, and says, the person who is said to be father of the child was married to me, would not this justify the clergyman in delaying the baptism? It is not the best evidence of the marriage, but it is evidence sufficient to induce the clergyman to act in the manner he did; and in the circumstances of this case, I think it competent.
Mr Moncreiff excepted to this direction, 1 st, As the woman was incompetent to prove her marriage. 2 d, As it was incompetent to prove a special fact against Drain, to affect
Page: 492↓
A document rejected, not having been produced eight days before the trial.—An objection to the designation of a witness, after her examination, held to be too late.
The witness was then examined, and an objection was taken to the production of the certificate of marriage.
Jeffrey—It is as competent as the books, called for by the defenders.
Lord Chief Commissioner.—The books are on the table; but I took the facts as proved by the witnesses, and do not mean to refer to the books. It appears to me, that the same rule applies to this as to any other document. You might have got it on the examination of this witness, as a haver before the trial.
Mr Moncreiff moved to have the examination of the witness struck out, as she was not properly designed, being described as residing near Airdrie.
Lord Chief Commissioner.—It appears to me that the objection comes too late.
Page: 493↓
Mr Cockburn afterwards intimated, that if the defender was only entitled to proceed in a certain manner, the case of the pursuer was closed.
Lord Chief Commissioner.—We cannot call on the defender to disclose the mode in which he means to conduct his case; but if justice requires replication, it may be allowed.
You have not proved any thing as to Courtney's, case. I have taken the books as proposed to be given in evidence, if proved.
Mr Jeffrey stated—The hand-writing is proved, and also that it is customary to keep such books. The pursuer is the only person who could prove the facts. On an objection by Mr Moncreiff, the Lord Chief Commissioner intimated, that the Court were of opinion that the books could not be received in evidence.
In damages for a libel, incompetent to prove the good character and benevolence of the defender.
The first witness called for the defenders was asked what was the character of Mr M'Gavin—whether he took a charge of, and was active in, the management of the public charities.
Page: 494↓
Lord Chief Commissioner.—Even if the opposite party does not object, the Court cannot allow this evidence to be given. How can this be a defence against the charge of having published a libel? The defender cannot set up his character in defence. But it is competent for him to answer the action by proving the justification; or he may diminish the damages, by proving that the thing was generally matter of report before, and that consequently less damage was done by publishing it.
There has been no evidence as to special malice; there is only the general proof of publication, and that it applied to the individual. We cannot allow what is now offered to be given in evidence. We must reject it as irrelevant; but counsel may be certain that nothing will be stated to the prejudice of the defender's character. You may either put your question, and take an exception to our rejecting it; or you may move for a new trial, and take your exception at that time.
Not competent to read at a trial the deposition of a haver examined on commission.
The deposition of a person examined as a haver was afterwards put in.
Jeffrey.—This is not evidence. The deposition
Page: 495↓
Moncreiff.—Mr Jeffrey might have objected at the time the deposition was taken; but I am not aware of any rule which prevents a deposition being read, to explain how the writings are not produced.
Lord Chief Commissioner.—We have had much conversation on this subject, as it has a strong bearing on the course of proceeding. The constitution of this Court clearly is, that no statement by a witness can be laid before the Court and Jury, except viva voce statements. It is only in a case of necessity, such as a witness being out of the kingdom, that he is examined on interrogatories.
The examination of a haver is merely to obtain production of a document, and ought not, as in the present case, to contain matter which is evidence in the cause. If depositions of this sort were admitted, it would be a means of laying a fact before the Jury, though not proved before them.
At first we used to have the havers brought forward to produce the papers at the trial;
Page: 496↓
A receipt for L.150, paid to public charities, was then offered in evidence.
Cockburn—Objects.
Lord Chief Commissioner.—How does this bear upon the case? Is it admissible or relevant? Suppose a person writes a gross libel, would it be admissible to prove such a fact?
Page: 497↓
In defence lo an action for defamation, competent to prove that the slander was currently reported.
The Superintendant of Police at Glasgow having stated, that at the time the chapel was building, the report was current that the poor contributed, and that several of them admitted the fact—was asked who they were, and how many?
Jeffrey.—We must object to proof of particular instances, though, from respect to the Court, we did not object to proof of the general report.
Moncreiff.—This is not in proof of withholding church privileges.
Lord Chief Commissioner.—The evidence now offered is to prove that individuals who were contributors to the chapel, were receiving public charity, which is not relevant to the inquiry. You cannot prove the truth of the report, to get quit of the claim of damage. In proving a report, you merely prove it true that it was reported; but not that what was reported is true. You may, I conceive, ask him whether what is stated in the Issues was currently reported.
Not competent to prove that the slander was reported by another.
The witness having stated that he made a report of the case of Widow Hanlin, was asked a question as to that report.
Cockburn—Objects.
Page: 498↓
Murray, for the defender Sim.—We admit that this is not in issue, and that this is not proof of a current report. We are not bound to prove the truth of the story, but merely that the defender published a true account of what was stated to him, which is sufficient to rebut their charge of our maliciously having published a fictitious case.
Jeffrey.—We do not deny that this is specified in the condescendence; but they ought to have put it in Issue as true, or at least as given to them by this witness.
Lord Chief Commissioner.—This case appears to have been entered by this witness on the report of Sim, which is only hearsay.
The way to get quit of a libel, is to prove it true; and to entitle a party to this proof, he must state time and place. He must prove the truth of the fact, and not merely that he heard it. In the present case, not having averred the fact, but merely the hearsay, we hold that he is not entitled to go into this evidence.
Incompetent to prove the veritas, without an Issue in justification.
A witness was called to prove certain statements by the pursuer from the pulpit of the old chapel.
Jeffrey objected.—This is not in issue.
Page: 499↓
Moncreiff.—They have been allowed to prove that no such statements were made, and are we not to be allowed to meet this by proof of the fact?
Lord Chief Commissioner.—Unless you can make out that a fact from the pulpit differs from another fact, we must reject the evidence. The question is disallowed, as no justification is stated.
Cockburn opened the case for the pursuer, and stated—That this was a pure question of Calumny and injury. It will be said that the defender was discussing certain general questions; but with this the pursuer has no concern. The pleas of the defender are inconsistent, as he maintains that the statements did not apply to the pursuer, and that they were true of him. When compelled to specify the instances in proof that the statements were true, he could only mention four, and these he attempts to support by the evidence of infamous witnesses. If it is said he only published what was said by half the population of Glasgow, we deny the fact; and a party is not entitled to publish what is merely whispered.
Page: 500↓
Moncreiff, for M'Gavin—It is impossible ta convey to the Jury the general impression produced by reading the publication in question; but in the place where the defender resides, it is known that he is devoid of that malice which has been so liberally ascribed to him. The discussion was forced upon him by other publications, and can it be held that his answer is malicious? It is said to be inconsistent to maintain that the statements do not apply to the pursuer, and are true. They were not meant to apply to him, but on inquiry were found to be true, though at so great a distance of time it is difficult to prove them. The case sent by Mr Sim revived the question; but Mr M'Gavin had no concern in that investigation. In a publication conducted by a committee of Catholics, the defender is accused of crimes.
Lord Chief Commissioner.—What publication is that?
Moncreiff.—The pursuer is not free of responsibility, and his conduct gave the defender reasonable ground to believe the statement by Sim to be true.
Page: 501↓
We are entitled to prove general reputation, and would have specified other instances, had not the pursuer refused us the means of finding out the persons, which appears from his examination as a haver.
Lord Chief Commissioner.—You may prove the fact that the pursuer denied having books; but I doubt if this is the proper way to prove it.
Moncreiff.—I am entitled to state that the pursuer gave an uncandid answer.
We shall prove the activity of the defender in doing good to the poor privately; his attention to public charities; the conduct of the pursuer as to the contributions, and his denunciations from the pulpit against defaulters.
Murray, for Sim.—This defender gave a fair statement of what was represented to him, and is not responsible for the truth of the facts, it having been his duty to report the statement made; Forteith v. Lord Fife, ante, p. 470.
Lord Chief Commissioner.—The Court did not in that case lay it down, that the Superintendant of a public charity was not to be answerable for publishing what is false.
Murray.—This statement is the reverse of slanderous, as it afforded the means of inquiry.
Page: 502↓
Jeffrey.— The pursuer has nothing to do with the benevolence of the defender, or his controversy with other writers. It is not necessary to prove direct malice, but it is sufficient to shew that the statements are false, and were rashly made. The facts specified are not proved, and are not sufficient to warrant the charges made.
Lord Chief Commissioner.—After the long, patient, and painful attention you have given to this case, I hope I shall not detain you much longer. The case for us is short, though it has been long in the statement, the proof, and the different discussions.
The general nature of the libel, though it contains various charges, is a charge of extortion.
In defence, what is termed a justification has been pleaded; and upon this, two questions arise: Whether the facts are proved? and if proved, Whether they cover the whole of the charge made? for if they do not cover the whole, then the part to which they do not apply, must stand on the evidence for the
Page: 503↓
[His Lordship here read part of the libel, to which he stated it as his opinion, that the justification did not apply. He then commented on the different cases stated in justification of the other parts of the libel, and pointed out what part of the matter given in evidence was to be taken into consideration, and what not.]
When a libel is produced, and either admitted or proved, law presumes falsehood, and from thence infers malice, but parties may add evidence on the subject.
In this case, I cannot state any doubt as to this libel applying to the party before us, and circumstances have been proved to shew the falsehood.
There was much discussion as to the competency of proving the truth of another instance, besides those specified in the Issues for the defender. To entitle the party to such a proof, he must state it in an Issue. A party may, indeed, without an Issue, prove circumstances in diminution of damages, such as general circulation of the slander before; but then.it must be proved to be the same slander.
Page: 504↓
If you consider any part of the justification proved, you are to wipe out the corresponding part of the libel.
Some part of it I consider done away, some part not; and if you are of the same opinion, you will find damages.
Verdict—“For the pursuer, damages against William M'Gavin, L.100; against William Sim, L.20; and against Messrs Duncan, 1s. each.”
Counsel:
Jeffrey and
Cockburn for the Pursuer.
Moncreiff,
J. A. Murray, and
More, for the Defenders.
Solicitors: (Agents, L. & C. Gordon, and W. & A. G. Ellis.)