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Cite as: [1830] ScotJCR 5_Murray_148

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SCOTTISH_HoL_JURY_COURT

Page: 148↓

(1830) 5 Murray 148

CASES tried in THE JURY COURT, 1828 to 1830.

No. 20

Couseland

v.

Cuthil.

1830. Jan 11.

PRESENT, THE LORD CHIEF COMMISSIONER.

Damages for defamation.

Damages for written and verbal defamation.

Page: 149↓

Defence.—The defender did not mean to injure the pursuers, and, in the circumstances, the action ought not to have been brought.

ISSUES.

The first related to a letter in which it was stated, that the pursuers were not worth L.5, and the second to the defender saying they were bankrupt.

Robertson opened for the pursuers.—The pursuers are shopkeepers beginning business, and their credit is most important to them. The defender is a rival trader, and this letter, to which the case is now limited, is beyond all the bounds of fair mercantile correspondence.

Incompetent to prove the contents of a bill by parol.

A witness was asked on cross-examination by the defender, whether he granted a bill?

Lord Chief Commissioner.—You cannot have the contents of the bill from the witness, but must produce the bill.

Cuninghame opened for the defender.—This is a frivolous case. There is no evidence of malice or falsehood, and the defender was entitled to write the letter.

Lord Chief Commissioner.—I do not in

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this or any case wish to aggravate damages, but I should do wrong if I did not tell you that there is a case for your consideration. The defence is a legal one, if you think it made out in evidence, as every one is entitled to make a confidential communication as to the circumstances of another, to a friend who calls for it with a view to dealing with that person, in the same way as a master, when called on, is entitled to tell the truth of his servant, though that may reflect on the character of the servant. The inuendo as to the meaning is admitted, and the question is on the falsehood and calumny. If falsehood is proved, the malice which law requires is presumed, and law by implication holds calumny false, which is not proved true. If the defender meant to plead the truth, he ought to have undertaken to prove it, and to have proved it. You are here to consider whether this letter contains fair and candid information to a correspondent, or whether it contains more than was required, and what establishes bad intention on the part of the defender. It seems to me to go beyond information, as it holds out a threat of not dealing with their correspondents if they employ the pursuers. This is not a case for high damages, but for such moderate sum as will not too much

Page: 151↓

hurt the one, and will free the other from uneasiness.

Verdict—“For the pursuer, damages L.20.”

Counsel: P. Robertson, for the Pursuers.
Cuninghame, for the Defender.

Solicitors: (Agents, John Campbell Jun. w. s. Alexander Burns, w. s.)

1830

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