ordered condescendences, a new condescendence was ordered to be given in by the magistrates.

The Lord Justice-Clerk said, that the meeting of the 17th September ought to have been composed of twenty-five persons, present either in person or by proxy, of whom Mr Denholm was one, in capacity of trades'councillor ; but Mr Denholm had been elected deacon on the 14th by his incorporation, and was presented to and received by the meeting of council on the 17th, in his new capacity of deacon, at which he took the oaths to government, as well as the oaths de fideli, and thereby distinctly accepted of the new office which had been conferred on him by the corporation of Waulkers. That it was needless to inquire whether the character of deacon attached to him before that meeting or not, for that, at least by that acceptance, a vacancy was occasioned in the office of trades'-councillor, and consequently in the number of twentyfive, by whom the ordinary deacons should have been appointed; notwithstanding which, Mr Denholm continued to act in his old character of trades'-councillor, and voted for his own appointment as an ordinary council-deacon. At all events, the vacancy in the twenty-five, occasioned by his being received in a new character (and he could not act in two,) was not filled up. As to the effect of this, it is quite unnecessary to enter into a long discussion, because, in the opinion he had given as to the fact, he had no alternative but to find that the election cannot be sustained.

and it appeared to him, that, following out the principle of the case of Aberdeen, the necessary consequence was, that the whole proceedings should be annulled. By the set of the burgh, every election-meeting should be full, and that not being the case, their Lordships had no sort of choice.

Lord Craigie said, he thought there was no necessity for the election-meetings being full; he thought a quorum was enough.

Lord Bannatyne said, he could entertain no doubt about this part of the case, on the grounds delivered from the chair; though, if it were possible, he would have liked to agree with Lord Craigie rather than deprive this great city of its magistracy.

Lord Glenlee said, that upon the supposition that Mr Denholm appear. ed in two capacities, the facts regarding which he did not fully understand, that he considered the set of the burgh as imperative, and that it was impossible to avoid the consequences that the whole election must be annulled.

On the 10th, the Town-Council of Edinburgh, with the exception of Deacons Lawrie, Anderson, and Knox, resolved to present a reclaiming petition to the Court of Session against the judgment pronounced, on Satur day the 6th instant, in the question at the instance of Deacon Lawrie and others against the election of the Magistrates and Council at Michaelmas last.

most difficult of the many perplexed

THE BAR.

coincided in the opinion of the Lord Justice Clerk, that Mr Denholm appeared in two separate and distinct and inconsistent capacities at the same time;

Jan. 22.

[The original pleading of this case at the Lancaster Assizes, appeared in

our last volume, Appendix, p. 70-2. A new trial was moved for in the Court of King's Bench, which came on upon the 22d of January. We shall only give the opinion of the Judges.]

Lord Ellenborough said, the law privileges many communications, which otherwise might be considered calumnious, and the subjects of actions; in those regarding the characters of servants, it is necessary, for the convenience of mankind, that there should be a free disclosure; and if it be made bona fide, and without express malice, without a design to state what is untrue and unprovoked, the law protects it from being the subject of an action. So in the case of counsel, who are appointed by the parties as better able to conduct their causes; the client consigns his interests to a counsel, who only speaks from information, and he is privileged when commenting upon the evidence or instruments produced in the course of the trial. It appears that the plaintiff was not only the attorney in the cause, but had been connected with previous transactions, and in the concoction and drawing of a promissory note, so that he must have been cognizant of the merits before he went into Court; and as it turned out on the trial, as he well knew it must, that the demand had been satisfied, his client of course was defeated. In commenting upon the circumstances, the learned counsel, who is here the defendant, said, that the plaintiff was a fraudulent and wicked attorney; he had a right to animadvert upon his conduct, and he could not do so without noticing him as the instrument in the formation of the promissory note, which was the chief ground of the nonsuit; he did not therefore take him at random, or draw his name in unnecessarily. I should say, that the language is strongly charged, for it ac

VOL. IX. PART II.

cuses Mr Hodgson of a fraud between man and man, and with wickedness in foro divino. This was perhaps not displaying that forbearance which it might be prudent to adopt ; but yet I cannot say that the accusation does not arise out of the subject matter of the case. If the attorney knowingly placed the parties in a situation where they must undoubtedly be sufferers without any benefit, it does seem to give a colour to the charge of being fraudulent and wicked. I cannot say that there is no reasonable or probable cause for a counsel so to state in the exercise of his duty of commenting. It may be urged, that the relevancy of the accusation appeared here, and not at the trial, and that it is in a manner ex post facto; but an admission was made at the Assizes, which, though not strictly conceding the relevancy, yet coupled with the actual facts now disclosed, seems to warrant the conclusion at which the Learned Baron arrived, and was equivalent in some sort to an actual disclosure of the facts. It appears to me that the words spoken were uttered in the cause, and relevant to the cause, and, consequently, that the action is not maintainable.

Mr Justice Bailey saw no objection to adopting the position laid down in Brooke v. Sir H. Montague, that the privilege of a counsel extends to all things said pertinent to the matter in issue. He admitted that the expressions were harsh, but that they came within the privilege.

Mr Justice Abbott concurred; words used in the course of a judicial inquiry, relevant and pertinent to the matter in issue, are not actionable, unless it appear that the counsel availed himself of his situation to gratify personal malice previously entertained against the person slandered. Justice could not be properly administered, if on every occasion counsel were to be

G

questioned for the strength of an expression employed in the fair conduct of a cause. Here the words were relevant and pertinent; and if a new trial were granted, the result would and ought to be the same as it had been.

Mr Justice Holroyd observed, that the slanderous words only expressed the opinion of an individual to the Jury, who were subsequently to decide upon the merits, and whether the counsel had spoken truly or untruly. A less latitude ought to be allowed to counsel than to parties, on account of their superior knowledge and cooler temperament; but they were not liable to actions, unless it clearly appeared that the slander had no relation to the cause. He referred to 1 Hawk. c. 73. § 8., 1 Rolls. Abr. 87, pl. 4., 1 Saund. 132, and to 4 Coke, 14 b., in order to shew that parties were not liable for words in the course of a judicial proceeding, unless express malice were established. He thought the present action not maintainable, for the reasons stated by the rest of the Court.

Rule for setting aside the nonsuit discharged.

STEWART AGAINST ALLAN AND MACKAY, FOR PARAGRAPH IN BELFAST NEWS LETTEr.

Jury Court, Glasgow, October 5.

The damages and solatium were laid in this case at 30007. The following is the paragraph referred to:

"HEINOUS FRAUD.-A singulardiscovery is reported to have been recently made in Glasgow. A servant man, who had lived for many years in the family of a Mr S. of that city, heard a report a long time ago that a near relation of his had died in the East In

dies, and left a considerable fortune to him. He made various inquiries to ascertain the fact, but without success. Among others, he applied to his master, requesting that he would endea vour to obtain the information wanted. The master promised to do so, but, after a long delay and various evasions, he at last told the servant that all his exertions had been fruitless, and that there seemed to be no truth in the report. Here the matter rested for a considerable time. Some months ago, however, the servant happening to be in company with a Methodist minister, mentioned the circumstance to him. The latter undertook to write to a friend in London to inquire respecting the affair. He accordingly did so, and in a few days received an answer, acquainting him that the gentleman about whom he inquired had died in India many years ago; and that it was fully sixteen years since the money he left, about 20,000l. had been paid over to Mr S. of Glasgow, on behalf of a relation of the deceased, who then lived in his family. Upon receipt of this intelligence, proper steps were immediately taken to bring the master to 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 considerable dowry to a daughter, and lived expensively. The necessary steps of law are, however, in progress."

Mr Jeffrey opened the case, on the part of Mr Stewart. The nature of the case, he said, would be stated to them in very short terms. The paragraph they would find in the issue was the ground of complaint, and it was headed in capitals Heinous Fraud. The information, thus published to all the kingdom, was admitted by the defenders to be false, and that the paper published by them was sent in course of business to Glasgow, the place of residence of Mr Stewart. The pa

ragraph alluded to was understood by all who read it here, to allude to Mr Stewart, and evidence would be called to establish that fact, and that no person ever thought that it alluded to any other person. He believed this was the first instance of a newspaper in this place, and in these times, having been pursued for a libel of this nature; but the Jury, he hoped, would see that his client was not to suffer a libel on his character to go forth, stating him to be a villain, a bankrupt, &c. ; for evidence would be led to shew, that his friends had so far been informed of the false statements issued against Mr Stewart, that, on their arrival in town, they called at the jail, to ascertain if he was an inmate there for this criminal action, and that others, who had large dealings with him, actually suspended business with him till the merits of this case should be tried. For the injury done to his feelings by this malicious libel, he now appeared before a Jury of his country, and the evidence which would be called, the learned counsel had no doubt, would enable them to make adequate reparation for the injury his client had sustained. The publication alluded to was not the first calumny against his client, as a William Adam, a gardener, had applied to the Magistrates, by petition, in 1816, to answer for the papers, &c. intrusted to his client, to recover a sum of money left by a friend in India; and, on the 13th December, 1816, Adam called on Mr Stewart to answer to a certain part of that process, on which Mr Stewart was sworn before the Magistrates, that he never had any papers, nor destroyed any power of attorney, or document, belonging to John Adam, W. Adam's father. On this being solemnly sworn to by Mr S. the Magistrates assoilzied (acquitted) him, and awarded damages. His client, therefore, never believed that, from this decision, the

matter would spread farther, for he had been at considerable expence to accommodate Adam in this business; but, in a month hence, a communica tion was made from Glasgow to Bel fast, still keeping up the malicious paragraph, and which was spread through and read in all the public news-rooms of the kingdom. He would ask the Jury, if the statement in the paragraph did not set forth that he was a bankrupt, having given a dowry to his daughter, and lived expensively, and

there were fears that much of the mo ney would not be recovered. This paragraph having been thrown into the coffee-room here, and read by mer chants known in business to his client, must have had the most direful effect on the character and feelings of that gentleman. In this great and commercial city, where every merchant prizes his character so highly, the pa. ragraph was received with horror, and it flew like lightning, announcing, in its train, that Mr Stewart had cut his throat, &c. On his arrival in town, he was astonished to see and hear the gentlemen quit the pavement, whispering to each other to have no dealings with him; while others were making him offers of conveyance to the West Indies, to avoid the shame he must be doomed to. The learned counsel called the attention of the Jury, while he

read a letter sent to the editor of the newspaper, calling on him to give up the author of it, but with this they would not comply; even after the action had commenced, Mr Stewart offered to withdraw the action if the author was given up, but no answer was given, except that they were not obliged to answer to an action in this country, the libel having been printed in Ireland. They never would give up the manuscript nor the author, and it is evident from this that he is well known, and that he is no doubt willing to pay all the expences the propri

etors of the newspaper may be put to; and he now called on the Jury to keep him in view as the person against whom they were to award damages, as the calumniator, for the proprietors of the newspaper could have no interest in the calumny they had been the means of diffusing so widely. In the case of Scarlet (vide Holt's Reports,) it was found that a party could not publish any thing but what appeared in the issue of the case, and even not then, if it was done with intent to hurt the feelings of the party; even an advo. cate in the cause cannot publish his speech, as it would be ex parte, if it meant to hurt. A member of parlia. ment may make his speech, but has no right to print or publish it, especially if any thing of a libellous nature appear in it. The case of Mr Creevy, M. P. is well known, where his speech had not been done justice to, and he sent a correct copy to the printer, to be reprinted; on which it was determined at Nisi Prius, that a member of parliament had no right to publish the speech he had made, when such was the tendency of it. This paragraph had not come under the head of Law Intelligence, where Mr Stewart's answer should have been given, but appeared in the newspaper as a malicious paragraph, and of course was an ex parte statement, although true. The statement, that the report was much in circulation before it was printed can be no plea in defence. Every man who issues a calumny, though he had it from twenty people, is liable for the whole. On the law of libel, in England, by Mr Starkie, a person may be freed from the imputation of slander, on his telling openly at the time the person from whom he had it, that he do not tell it generally, and that verbally only, as the writing and printing of it is more heinous. The case before the Jury was of this nature, as it never had been seen in manuscript or

print, till it appeared in the Belfast paper in question.

The facts were then proved by several respectable witnesses.

Mr Moncrieff addressed the jury for the defenders, observing, how exagge rated the statement had been made in the introduction. His clients had admitted being proprietors of the NewsLetter, and Mr Allan, one of the defenders, was in Italy, on account of his wife's health, at the time libelled. Mr Mackay has been 30 years in the management of a newspaper, and this is the first offence he ever was charged with in the course of his business. The Jury would keep in mind the process that Adam had raised against Mr S., demanding the power of attorney that had been entrusted to Mr S., to recover money that was left by a friend of his in the East Indies. This story was communicated by Mr Kilbee to Mr Mackay in Belfast, and hence arose the paragraph, though Mr Mackay did not know who Mr S. was. If it had not been for the process before the magistrates, no person could know that it alluded to Mr Stewart. On Mr Mackay receiving the letter from Messrs King and Campbell, he answered it by expressing the utmost contrition, as it was a paragraph that had been done in the hurry of business, and that in his next paper he would contradict it, which was the case in the paper of the 4th of February, and the process before the Magistrates was not over till the 11th. It appears Mr S.'s idea was to make a pecuniary job of it, as the author was offered to be given up. A gentleman waited on Mr S. five days before the action commenced, to offer any compensation he wished, on the part of Mr Allan and Mr Mackay, and that Mr Kilbee, residing in Ireland, was named as the author. This case was that of a paragraph inserted in a newspaper, consisting of a great deal of miscellaneous