other remedy lies, and where an award of damages proves that the pursuer has been calumniated by the defender: But it is not the proper remedy in such a case as the present, just as little as damages to a husband in the case of the infidelity of his wife, is the proper reparation for such a wrong to him. And if for what is said to be a calumny in a judicial proceeding properly carried on before a Church Court, the sentence which is charged as calumnious is altered, I can see no ground for coming to the Civil Court, not for reparation of patrimonial loss actually incurred, but seeking damages in solatium, when the proper remedy has been obtained in the Church Courts; and when the Civil Court has not the proper jurisdiction in the matter, nor any right of review over the proceedings, or right to inquire into them, and more especially as the claim is against the members acting in their judicative capacity in a Court altogether distinct and independent, and not subject to the review of the Civil Court.

It would be a different case if a party made a false and malicious accusation, and misled the Church Court. After getting the proceeding set aside by the superior Church Court, the injured party could no doubt claim damages from the Civil Court against the fabricator of the charge. So also, I think, he could, although the story was maliciously invented even by a member of the Kirk-Session; so that while he would obtain redress by having the sentence reversed by the superior Church Court, he might also proceed there against the offending member of Court, who could have no protection for what he did not do as a member of Court, but as a private informer. Or, if the party preferred it, he might claim in such a case civil reparation by damages for the loss and injury sustained by this false accusation. This was so held in the case of Kidd, already noticed. But I think he could not claim both remedies against the offending member of the Church,-the one which is obtained in the Church Court, and the other in the Civil Court; although, no doubt, ex proprio motu, the Church Court might deal with him according to the discipline of the Church, this not being at the instance of the aggrieved party. Another case, almost an unsupposable one, may be put; that a whole Kirk-Session, without any ground whatever, should convict a parishioner of some offence against the laws of the Church, and subject him to discipline; if they confine themselves to their judicial character only in the disposal of the case, I think the injured party could not make them amenable by an action of damages before the Civil Court for what they did judicially; his redress would be by an appeal to the next higher Church Court to review their proceedings, from whom he would obtain justice. But, of course, it would be different if all or any of the members mentioned the matter as to which they calumniously found

fault with his conduct out of doors, and not in the adjudication of it in the Church Court.

I, therefore, am of opinion that the first issue should be disallowed, in respect that the Kirk-Session is not amenable to the Civil Court for what was done in their judicative capacity as members of a Church Court.

I am also inclined to give the same protection to the statements made in the petition to the General Assembly. It was certainly not in the form of an appeal from the sentence of the Synod, but rather an application for advice and instruction, as to how they should proceed, where the Synod had not been able to go into the merits of the case on account of an informality. This, I think, was nothing incompetent, nor, in the circumstances of the case, unreasonable; and, in doing so, it was necessary to explain the nature of the proceedings; and as it was a statement in the process temperately made, and in support of the sentence pronounced by them, a judicial step by the Court complained against, I do not think the Civil Court can interfere, so as to make them liable in civil damages for any statement made therein. Except in so far as the Civil Court has power to review the proceedings of the Kirk-Session on the merits, I do not see how they can entertain this issue. I think in this I follow the judgment of the Court in a complaint made in the same case against the minister of Abernethy, 21st December 1781, who having, during the dependence of the civil action, applied to the Presbytery to take cognisance of his reasons for refusing the tokens, and obtained their deliverance on it, this was complained of to the Court; but the petition was refused as incompetent, although, perhaps, the comment on this case by Professor More (Notes on Stair, p. 369), that no "proper ecclesiastical proceedings of a Church Court, however irregular or improper, can be brought under review of the Court of Session," is expressed a little too strongly. I think the case of Grieve against Smith, already noticed, also affords support to this view. We should think it a very great injury if any charge of misconduct were to be announced to a congregation generally, and not merely to the judicative authority in it. But it was there held that this being one of the rules and usages of the sect of the Bereans, of which both parties were members, the Civil Court could not interfere by entertaining a process for defamation on that account; but damages were given, in so far as the unfounded charge was made to others, and not in the congregation.

I am of opinion, however, that the same protection does not apply to the publication of the minute of 30th May 1848, in the church on the 4th June 1848, nor to the next issue as to the Barty Mortification; and I do not think that the term "maliciously " needs to be inserted in the one, nor, "in violation of their duty," in the other.

As to the 4th and 5th issues, I also think maliciously need not be inserted; it is not, ex facie, a privileged case of defamation.

With regard to the last, the same remark applies: but if it be shown, and it turns out, on proof, that, in his defence against the action, the minister stated what was pertinent to the cause, then malice must be established; and if this cannot be shown, the defender will be entitled to a verdict in his favour on that issue. This is all that was meant when I concurred in the opinion in Dunbar against Stoddart, 15th February 1849.

LORD MONCREIFF.-In the question, Whether it is competent to the pursuer of this action to obtain an issue, in the terms proposed in the first issue laid before the Court, by which he is to claim damages from the defenders, as the members of the Kirk-Session of Blairgowrie, on account of certain resolutions embodied in the minutes of the KirkSession, annexed in the schedule referred to-resolving into a sentence or sentences pronounced by the defenders, when regularly constituted as a Kirk-Session of the Church-it appears to me to be altogether unnecessary (and it being unnecessary, I am very well pleased to avoid it) to enter into any discussion of abstract questions concerning the jurisdiction of the Ecclesiastical Courts, or the limits of it, or concerning the extent of the privilege of the members of such Courts in anything which may be done or transacted in them in matters properly belonging to them, and within their competency as such Courts. I assume that no such issue could be granted without an undertaking laid on the pursuer to prove that the resolutions or sentences were pronounced maliciously, and without probable cause. But, even with that addition, it remains a serious question whether any such issue is competent at all. The matter of the resolutions referred to is evidently of such a nature that the defenders, as a Church Court, had power to deal with it; and, in this case, there is no necessity for considering any strong or extreme cases concerning the grounds of judgment which the Church Court may have adopted. I have had my own opinions on that subject. But the matter here being so clearly within the jurisdiction of the Kirk-Session, and it being so held, as I understand, by others, after all the judgments which have been pronounced in this Court in such questions, I cannot hesitate in delivering my own opinion that the action and the proposed issue are incompetent, in so far as they are founded on the sentences or resolutions of the Kirk-Session regularly convened, and that no addition of malice or want of probable cause can render them competent.

The case as to the other matter embraced by the first issue is not exactly the same. The issue is asked on account of a certain petition presented to the General Assembly of the Established Church, as containing state

ments alleged to be libellous. I have had more doubt on this part of the case, on account of such a petition not being in the regular course of ecclesiastical procedure. But even as to that, as the matter alleged to be expressed in that petition was of the same character of spiritual superintendence, proper to the jurisdiction of the Kirk-Session, and the nature and object of the petition was to obtain the advice of the Assembly in such matter, and as any question of irregularity belonged to that Court alone, I am inclined to think that the issue ought not to be granted.

It farther appears to me that no one can have any just right to insist in such an action against the members of the Kirk-Session of the Established Church, or, indeed, of any Church, of which he holds himself to be a member, when he reads the terms of the Confession of Faith, in sections 3 and 4 of chapter 30, which he professes to receive as the Confession of his faith in this matter.

Section 3.-" Church censures are necessary," etc.

Section 4.-" For the better attainment of these ends, the officers of the Church are to proceed by admonition; suspension from the Sacrament of the Lord's Supper for a season; and by excommunication from the Church, according to the nature of the crime and demerit of the person."

The pursuer has voluntarily submitted himself to the jurisdiction legally constituted for dealing with such things; and I think that, in such a case, the privilege in the sentences pronounced, and proceedings connected with them, is absolute against the competency of such an action in the Civil Court.

LORD COCKBURN.-There are cases in which a consequence is the best of all arguments. If the plea of the defenders be sound, Kirk-Sessions have an absolute licence of defamation. They have nothing to do but to keep within their jurisdiction; and then, let them abuse it as they may, they are liable to no civil responsibility. They may, with conscious falsehood, ascribe specific crimes to every parishioner who has the misfortune to incur their dislike; or they may select a single individual, and deliberately doom him to destruction by libel ;-by the assertion of facts fatal to his character and peace, which they know to be groundless; and they may persevere in this scheme of moral murder, in spite of every explanation, and in defiance of all decency. True, they must preserve the shelter of their jurisdiction, both as to matter and as to form; but this it is always in their power to do. Nor are they restricted to the occasions on which, as here, their victim happens to apply to them for admission to the ordinances of religion. Because, in the first place, if he does not apply, this itself is an offence which subjects him to their discussion; and, in the

second place, as guardians of the parochial morality, there is nothing immoral, and what they may profess to think immoral, which does not come within their cognisance. What they do, may be reviewed ecclesiastically by their ecclesiastical superiors, by whom they may be corrected, or rebuked, or deposed. But they may not; and though they be, this is no civil reparation to the party whose reputation, tranquillity, or fortune, may have been blasted by their purposed malignity. They are safe in even inventing pretences for calumny. The defenders' principle is, that they are liable to no civil inquiry. So they may meet, provided it is all done sessionally, and deliberately create lies for the sake of libelling; and there is no civil redress. Nor is this frightful system confined to the Establishment. The principle, if it be followed out, must apply to all our Presbyterian dissenters, in their dealings with their own adherents, and, indeed, to every religious community. So that the whole country is studded with little inquisitions; from whose fatal but irresponsible censures no man has any safety except he, who, in reference to such a system, is in what must be considered the comfortable condition of belonging to no religious community at all; though even he is by no means quite secure against the general censorship of the Established Session.

I am aware that some of this may be applicable to abuses by ordinary Courts. But all other Courts are civilly responsible, and there are no Judges that are created as the members of a Kirk-Session are. All other Judges and Magistrates, except the members of Town-Council, are appointed by the Crown, and they are all, Town-Councillors included, liable to civil control. It is the policy of the law to hold that the dignity and independence of Supreme Judges requires them to be placed above responsibility for official delinquency by action; but they may be degraded by the Crown and Parliament. Inferior Magistrates are liable to have their errors set right by civil review, and they have, in a thousand instances, been obliged to make reparation to those they have wronged. But KirkSessions appoint their own members. No civil power can either create or remove them. And, however severely their ecclesiastical superiors may condemn them, these superiors can never make them give one sixpence towards the reparation of their wrongs. This is the very last body in the State on whom an unchecked licence of civil injury can be safely conferred.

Yet, though the pursuer offers to prove that the defenders have injured him, by statements made, not as in Grant's case, from mere "pique and resentment," and not only falsely and maliciously, but without any probable cause, that is, by a mere prostitution of their office: the plea is, that they are civilly safe, because they were under the pretence of official jurisdiction.