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Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Cleland v. Mack. [1829] ScotJCR 5_Murray_70 (16 July 1829)
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Cite as: [1829] ScotJCR 5_Murray_70
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SCOTTISH_HoL_JURY_COURT
Page: 70↓
(1829) 5 Murray 70
CASES tried in THE JURY COURT, 1828 to 1830.
No. 9
v.
PRESENT, LORD CHIEF COMMISSIONER.
One shilling damages for defamation.
This was an action of damages by a person against his wife's mother for defamation.
Page: 71↓
Defence.—The expressions were not used; but if they had, they would have been justified by the previous attack made by the defender on the pursuer.
“Whether on or about the 18th of September 1827, at or near the house of Fruitfield, near Airdrie, and in presence and hearing of the wife of the pursuer, the defender did falsely and calumniously say, that the pursuer was an adulterous scoundrel, or did falsely and calumniously use or utter words to that effect, to the injury and damage of the pursuer.
Whether, on or about the 15th October 1827, at or near the said house, and in presence and hearing of John Weir, sheriff-officer, Finlay M'Intosh, and John Whitelaw, who were then acting as concurrents with the said sheriff-officer, or in presence and hearing of one or other of the said persons, the defender did falsely and calumniously say, that there was no wonder Mrs Cleland, (meaning the wife of the pursuer,) was unwell, or should go mad, being connected with such a villain or rascal, (meaning the pursuer,) or did falsely and calumniously use
Page: 72↓
Cuninghame opened for the pursuer, and stated the facts.
Incompetent to ask a witness what remark he made on hearing a defamatory expression.
A witness was desired to repeat a remark she made to another person after hearing the statement by the defender, but this being objected to, the question was given up, the Court at the same time intimating that it was not evidence.
In an action for slander, incompetent to prove a particular instance of violence.
Evidence having been given in chief that the pursuer was of a peaceable disposition, the witness was asked, on cross-examination, whether he ever heard of the pursuer having wounded a man with a pair of snuffers?
Lord Chief Commissioner.—You may ask to general character, but are not entitled to bring forward particular facts.
Sommerville v. Buchanan, 11th February 1801. Borth. L. of Lib. No. xiii. Inglis v. Young, 28th Feb. 1801. Borth. L. of Lib. No. xiv.
Jeffrey, D. F. opened for the defender and said,—That the impression was against the pursuer, as he had brought this action against his mother-in-law, though he was the aggressor. That the words being uttered in heat were not actionable.
Page: 73↓
The second issue is not actionable. It is a mere statement of opinion, and does not charge any act.
Boyd v. Reid, 11th July 1301, Borth. L. of Lib. No. xxiii.
Cockburn in reply.—The points are whether the expressions were used, and whether there have been any observations or evidence to justify or exculpate them? Unless the witnesses are perjured, there is no doubt of the facts, and I will not argue the point that such provocation will take away the right to damages.
Lord Chief Commissioner.—So far as we see this pursuer comes with a fair character, and though it must be the wish of all that no action should be brought between so near relations, still we must deal with it as with any ordinary case, and inquire whether the pursuer has made out one or both of the issues. It is not disputed that, if proved, the words in the first issue are actionable, and there is no attempt to prove the truth. There was no proof of what occurred before this meeting, and you must judge whether the provocation then given justified the words used.
The second is not proved by two witnesses as laid, but there is matter for your consideration.
If you find for the pursuer on the first, you
Page: 74↓
Verdict—For the pursuer on the first issue, damages Is. On the second for the defender.
Counsel:
Cockburn and
Cuninghame for the Pursuer.
Jeffrey, D. F. and
Borthwick for the Defender.
Solicitors: (Agents, William Douglas, w. s. William Wotherspoon, s s. c.)