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ordered condescendences, a new con- and it appeared to him, that, follow. descendence was ordered to be given ing out the principle of the case of in by the magistrates.
Aberdeen, the necessary consequence The Lord Justice-Clerk said, that was, that the whole proceedings should the meeting of the 17th September be annulled. By the set of the burgh, ought to have been composed of twen- every election-meeting should be full, ty-five persons, present either in per- and that not being the case, their son or by proxy, of whom Mr Den. Lordships had no sort of choice. holm was one, in capacity of trades'- Lord Craigie said, he thought there councillor; but Mr Denholm had been was no necessity for the election-meetelected deacon on the 14th by his in- ings being full, he thought a quorum corporation, and was presented to and was enough. received by the meeting of council on Lord Bannatyne said, he could enthe 17th, in his new capacity of dea- tertain no doubt about this part of the con, at which he took the oaths to case, on the grounds delivered from government, as well as the oaths de fi- the chair ; though, if it were possible, deli, and thereby distinctly accepted he would have liked to agree with of the new office which had been con- Lord Craigie rather than deprive this ferred on him by the corporation of great city of its magistracy. Waulkers. That it was needless to in- Lord Glenlee said, that upon the quire whether the character of deacon supposition that Mr Denholm appear. attached to him before that meeting ed in two capacities, the facts regard or not, for that, at least by that ac- ing which he did not fully understand, ceptance, a vacancy was occasioned in that he considered the set of the burgh the office of trades-councillor, and con- as imperative, and that it was impossequently in the number of twenty-sible to avoid the consequences that five, by whom the ordinary deacons the whole election must be annulled. should have been appointed; not withstanding which, Mr Denholm conti- On the 10th, the Town-Council of nued to act in his old character of Edinburgh, with the exception of trades'-councillor, and voted for his Deacons Lawrie, Anderson, and Knox, own appointment as an ordinary coun- resolved to present a reclaiming peticil-deacon. At all events, the vacan- tion to the Court of Session against cy in the twenty-five, occasioned by the judgment pronounced, on Saturhis being received in a new character day the 6th instant, in the question at (and he could not act in two,) was not the instance of Deacon Lawrie and lilled up. As to the effect of this, it others against the election of the Ma. is quite unnecessary to enter into a gistrates and Council at Michaelmas long discussion, because, in the opi. last. nion he had given as to the fact, he had no alternative but to find that the election cannot be sustained.
Lord Robertson said, that he al. MR SCARLETT, FOR DEFAMATION AT ways considered this as one of the
THE BAR. most difficult of the many perplexed questions in this case. His Lordship Courl of King's Bench, Serjeant's Inn, coincided in the opinion of the Lord
Jan. 22. Justice-Clerk, that Mr Denholm appeared in two separate and distinct and [The original pleading of this case inconsistent capacities at the same time; at the Lancaster Assizes, appeared in our last volume, Appendix, p. 70–2. cuses Mr Hodgson of a fraud between A new trial was moved for in the man and man, and with wickedness in Court of King's Bench, which came foro divino. This was perhaps not on upon the 22d of January. We displaying that forbearance which it shall only give the opinion of the might be prudent to adopt ; but yet Judges.]
I cannot say that the accusation does Lord Ellenborough said, the law not arise out of the subject matter of privileges many communications, which the case. If the attorney knowingly otherwise might be considered calum. placed the parties in a situation where nious, and the subjects of actions ; in they must undoubtedly be sufferera those regarding the characters of sere without any benefit, it does seem to vants, it is necessary, for the conveni. give a colour to the charge of being ence of mankind, that there should be fraudulent and wicked. I cannot say a free disclosure ; and if it be made that there is no reasonable or probable bona fide, and without express malice, cause for a counsel so to state in the without a design to state what is un- exercise of his duty of commenting, true and unprovoked, the law protects It may be urged, that the relevancy of it from being the subject of an action. the accusation appeared here, and not So in the case of counsel, who are ap- at the trial, and that it is in a manner pointed by the parties as better able ex post facto; but an admission was to conduct their causes ; the client made at the Assizes, which, though consigns his interests to a counsel, who not strictly conceding the relevancy, only speaks from information, and he yet coupled with the actual facts now is privileged when commenting upon disclosed, seems to warrant the concluthe evidence or instruments produced sion at which the Learned Baron arriin the course of the trial. It appears ved, and was equivalent in some sort that the plaintiff was not only the at. to an actual disclosure of the facts. It torney in the cause, but had been con
appears to me that the words spoken nected with previous transactions, and were uttered in the cause, and relevant in the concoction and drawing of a to the cause, and, consequently, that promissory note, so that he must have the action is not maintainable. been cognizant of the merits before he Mr Justice Bailey saw no objection went into Court ; and as it turned out to adopting the position laid down in on the trial, as he well knew it must, Brooke v. Sir H. Montague, that the that the demand had been satisfied, his privilege of a counsel extends to all client of course was defeated. In come things said pertinent to the matter in menting upon the circumstances, the issue. He admitted that the expreslearned counsel, who is here the de- sions were harsh, but that they came fendant, said, that the plaintiff was a within the privilege. fraudulent and wicked attorney ; he Mr Justice Abbott concurred ; had a right to animadvert upon his words used in the course of a judicial conduct, and he could not do so with inquiry, relevant and pertinent to the out noticing him as the instrument in matter in issue, are not actionable, unthe formation of the promissory note, less it appear that the counsel availed which was the chief ground of the himself of his situation to gratify pera nonsuit ; he did not therefore take him sonal malice previously entertained at random, or draw his name in unnea against the person slandered. Justice cessarily. I should say, that the lan- could not be properly administered, if guage is strongly charged, for it ac. on every occasion counsel were to be
VOL. IX. PART II.
questioned for the strength of an ex. dies, and left a considerable fortune to pression employed in the fair conduct him. He made various inquiries to of a cause. Here the words were re. ascertain the fact, but without success. levant and pertinent; and if a new Among others, he applied to his mastrial were granted, the result would ter, requesting that he would endeaand ought to be the same as it had vour to obtain the information wanted. been.
The master promised to do so, but, afMr Justice Holroyd observed, that ter a long delay and various evasions, the slanderous words only expressed he at last told the servant that all his the opinion of an individual to the exertions had been fruitless, and that Jury, who were subsequently to de. there seemed to be no truth in the recide upon the merits, and whether port. Here the matter rested for a the counsel had spoken truly or une considerable time. Some months ago, truly. A less latitude ought to be al- however, the servant happening to be lowed to counsel than to parties, on in company with a Methodist minister, account of their superior knowledge mentioned the circumstance to him. and cooler temperament; but they were The latter undertook to write to a not liable to actions, unless it clearly friend in London to inquire respecting appeared that the slander had no rela- the affair. He accordingly did so, and tion to the cause. He referred to 1. in a few days received an answer, acHawk. c. 73. $ 8., 1 Rolls. Abr. 87, quainting him that the gentleman about pl. 4., 1 Saund. 132, and to 4 Coke, whom he inquired had died in India 14 b., in order to shew that parties many years ago ; and that it was fully were not liable for words in the course sixteen years since the money he left, of a judicial proceeding, unless express about 20,000l. had been paid over to malice were established. He thought Mr S. of Glasgow, on behalf of a rethe present action not maintainable, for lation of the deceased, who then lived the reasons stated by the rest of the in his family. Upon receipt of this Court.
intelligence, proper steps were imme. Rule for setting aside the nonsuit diately taken to bring the master to discharged.
account, but we are sorry to add that our report states, there is little probability of much of the money being
recovered, as he had given a consider. Stewart AGAINST ALLAN AND MAC. able dowry to a daughter, and lived
KAY, FOR PARAGRAPH IN Belfast expensively. The necessary steps of News LETTER.
law are, however, in progress."
Mr Jeffrey opened the case, on the Jury Court, Glasgow, October 5. part of Mr Stewart. The nature of
the case, he said, would be stated to The damages and solatium were laid them in very short terms. The parain this case at 30001. The following graph they would find in the issue was is the paragraph referred to :
the ground of complaint, and it was “Heinous FRAUD.-A singular dis- headed in capitals-Heinous Fraud. covery is reported to have been recent. The information, thus published to all ly made in Glasgow. A servant man, the kingdom, was admitted by the de. who had lived for many years in the fenders to be false, and that the paper family of a Mr S. of that city, heard published by them was sent in course a report a long time ago that a near of business to Glasgow, the place of relation of his had died in the East In, residence of Mr Stewart. The pa. ragraph alluded to was understood by matter would spread farther, for he all who read it here, to allude to Mr had been at considerable expence to Stewart; and evidence would be called accommodate Adam in this business ; to establish that fact, and that no per- but, in a month hence, a communicason ever thought that it alluded to any tion was made from Glasgow to Bela other person. He believed this was fast; still keeping up the malicious pathe first instance of a newspaper in this ragraph, and which was spread through place, and in these times, having been and read in all the public news-rooms pursued for a libel of this nature ; but of the kingdom. He would ask the the Jury, he hoped, would see that his Jury, if the statement in the paragraph client was not to suffer a libel on his did not set forth that he was a banko character to go forth, stating him to rupt, having given a dowry to his be a villain, a bankrupt, &c.; for evi- daughter, and lived expensively, and dence would be led to shew, that his there were fears that much of the mos friends had so far been informed of the ney would not be recovered. This false statements issued against Mr Steve paragraph having been thrown into art, that, on their arrival in town, they the coffee-room here, and read by mer. called at the jail, to ascertain if he was chants known in business to his client, an iomate there for this criminal action, must have had the most direful effect and that others, who had large deals on the character and feelings of that ings with him, actually suspended bu. gentleman. In this great and comsiness with him till the merits of this mercial city, where every merchant case should be tried. For the injury prizes his character 87 highly, the pa. done to his feelings by this malicious ragraph was received with horror, and libel, he now appeared before a Jury it few like lightning, announcing, in of his country, and the evidence which its train, that Mr Stewart had cut his would be called, the learned counsel throat, &c. On his arrival in town, had no doubt, would enable them to he was astonished to see and hear the make adequate reparation for the in- gentlemen quit the pavement, whisperjury his client had sustained. The ing to each other to have no dealings publication alluded to was not the first with him ; while others were making calumny against his client, as a Wil. him offers of conveyance to the West liam Adam, a gardener, had applied Indies, to avoid the shame he must be to the Magistrates, by petition, in doomed to. The learned counsel call. 1816, to answer for the papers, &c. ed the attention of the Jury, while he intrusted to his client, to recover a read a letter sent to the editor of the sum of money left by a friend in In- newspaper, calling on him to give up dia ; and, on the 13th December, the author of it, but with this they 1816, Adam called on Mr Stewart to would not comply ; even after the acanswer to a certain part of that pro. tion had commenced, Mr Stewart of. cess, on which Mr Stewart was sworn fered to withdraw the action if the aubefore the Magistrates, that he never thor was given up, but no answer was had any papers, nor destroyed any given, except that they were not obpower of attorney, or document, be. liged to answer to an action in this longing to John Adam, W. Adam's country, the libel having been printed father. On this being solemnly sworn in Ireland. They never would give to by Mr S. the Magistrates assoilzied up the manuscript nor the author, and (acquitted) him, and awarded da. it is evident from this that he is well mages. His client, therefore, never known, and that he is no doubt will. believed that, from this decision, the ing to pay all the expences the proprie etors of the newspaper may be put to ; print, till it appeared in the Belfast and he now called on the Jury to keep paper in question. him in view as the person against whom The facts were then proved by sethey were to award damages, as the veral respectable witnesses. calumniator, for the proprietors of the Mr Moncrieff addressed the jury for newspaper could have no interest in the defenders, observing, how exaggethe calumny they had been the means rated the statement had been made in of diffusing so widely. In the case of the introduction. His clients had adScarlet (vide Holt's Reports,) it was mitted being proprietors of the Newsfound that a party could not publish Letter, and Mr Allan, one of the de, any thing but what appeared in the fenders, was in Italy, on account of issue of the case, and even not then, if his wife's health, at the time libelled. it was done with intent to hurt the Mr Mackay has been 30 years in the feelings of the party; even an advo. management of a newspaper, and this cate in the cause cannot publish his is the first offence he ever was charged speech, as it would be ex parte, if it with in the course of his business, meant to hurt. A member of parlia. The Jury would keep in mind the proment may make his speech, but has no cess that Adam had raised against Mr right to print or publish it, especially S., demanding the power of attorney if any thing of a libellous nature ap- that had been entrusted to Mr S., to pear in it. The case of Mr Creevy, recover money that was left by a friend M. P. is well known, where his speech of his in the East Indies. This story had not been done justice to, and he was communicated by Mr Kilbee to sent a correct copy to the printer, to Mr Mackay in Belfast, and hence arose be reprinted ; on which it was deter. the paragraph, though Mr Mackay mined at Nisi Prius, that a member of did not know who Mr S. was. If it parliament had no right to publish the had not been for the process before speech he had made, when such was the magistrates, no person could know the tendency of it. This paragraph that it alluded to Mr Stewart. On had not come under the head of Law Mr Mackay receiving the letter from Intelligence, where Mr Stewart's an- Messrs King and Campbell
, he answer should have been given, but ap. swered it by expressing the utmost peared in the newspaper as a malicious contrition, as it was a paragraph that paragraph, and of course was an ex had been done in the hurry of busiparte statement, although true. The
The ness, and that in his next paper be statement, that the report was much would contradict it, which was the case in circulation before it was printed can in the paper of the 4th of February, be no plea in defence. Every man who and the process before the Magistrates issues a calumny, though he had it was not over till the 1lth. It appears from twenty people, is liable for the Mr S.'s idea was to make a pecuniary whole. On the law of libel, in Eng. job of it, as the author was offered to land, by Mr Starkie, a person may be be given up. A gentleman waited on freed from the imputation of slander, Mr S. five days before the action comon his telling openly at the time the menced, to offer any compensation he person from whom he had it, that he wished, on the part of Mr Allan and do not tell it generally, and that ver- Mr Mackay, and that Mr Kilbee, rebally only, as the writing
and printing siding in Ireland, was named as the of it is more heinous. The case be author. This case was that of a para. fore the Jury was of this nature, as it graph inserted in a newspaper, consistnever had been seen in manuscript or ing of a great deal of miscellaneous