only done at the close of each deposition, and not upon each page, and certain trifling alterations and erasures, which happen in taking down almost every proof, were not separately and specially noticed and authenticated. The Lord Ordinary pronounced the following interlocutor:

"The Lord Ordinary having heard parties' procurators, and again made avizandum, and considered the closed record and process, finds that, in the circumstances stated by the pursuer, the action is not so libelled as to be relevant to support any claim of damages against the defenders; and, therefore, assoilzies the defenders from the conclusions of the action, and decerns; and finds them entitled to expenses; and remits the account thereof, when lodged, to the auditor to tax and report." The pursuer reclaimed.

Penney and Fraser for pursuer-The defenders are not entitled to plead privilege. In considering this point, our averments must be held pro veritate. Now, our allegation is, that a court constituted by statute took certain proceedings which were reduced as illegal; they are charged not merely with omitting to sign the proofwhich in itself is sufficient illegality-but with having taken up this complaint without due inquiry. Further, the defenders, in this matter, acted not merely as judges, but as prosecutors also; admitting, therefore, that they are entitled to plead privilege in regard to their actings in the former character, no such plea can be maintained as to their actings in the latter. The defenders plead that, under the statute, they were obliged to take up the case; but it was in their discretion to refuse it; and we aver that it was taken up without proper investigation. Then we aver further, that they observed none of the forms of court.

Lord Jeffrey.-But what were the errors you complain of? You must state these specifically.]

It is not necessary to libel these individually; indeed, under the judicature act, the record should be made as broad and general as possible.

Anderson and Bell for defenders-We have only acted as we were bound to do by the act. A complaint in terms of the act was laid before the presbytery in due form; and, had they not taken cognizance of it, they might have been compelled by action at law to do so. Under the act, also, the double character of prosecutors and judges is imposed on the presbytery; and it is incompetent, by means of any affected distinction between these two characters, to subject a court of law, or the individual members thereof, in damages for the bona fide exercise of their statutory duty. Since, then, excess of jurisdiction is not alleged, any action which does not specially libel malice is incompetent.

Penney-If it is doubtful whether this is a case where the plea of privilege is applicable, the proper plan is to send it to a jury, and the plea can be urged there. Indeed, the question, whether that plea is, or is not, applicable in this case, depends on this, whether the presbytery acted within the statute or not. If we can show that the presbytery, in what they did, were acting in the teeth of the statute, it is unquestionable that then they would have no privilege, because then they would be no court at all. The statute imposes certain conditions, on which alone the presbytery can pronounce judgment; one of these is, that they shall have "taken the necessary proof." Now, in the case of Kilberry, 30th June 1847, it was found that it was necessary to write

down the proof, and that there was no proof because it was not taken down. Here, Lord Ivory has held that the proof, further, must be taken down in due form of law. But this the presbytery did not do. They, accordingly, did not keep within the act, and, therefore, cannot be regarded as a court, and as entitled to the privileges thereof.

| Lord Mackenzie.-Do you say that the smallest error in the most difficult point would subject the presbytery in damages? | Not if, for instance, it were a mere grammatical error, involving no injury. But all that may safely be left to the jury; they may say this is merely a technical error, and therefore we shall give no damages.

| Lord Mackenzie.-Then you say that, under the statute, the presbytery were bound to take evidence according to all the rules of law. But there is no matter on which more difficult questions arise. Suppose they had admitted an inadmissible witness.

I am not bound to go into that, since I have Lord Ivory's judgment, now final, reducing the judgment. The question here is, was the judgment of the presbytery beyond the statute, or not; that is a point which may be decided before the jury; but we are here on the preliminary point, and I am not bound to aver malice, because the summons, being laid on the contravention of the statute, does not, on the face of it, require any such averment. At any rate, the claim for damages is good on the ground of defamation, since the sentence of deposition was publicly intimated, and that contrary to practice ad longum, charging the pursuer with adultery.

Bell-Intimation of the sentence of deposition was ordered by the presbytery. It is always intimated, and does not state the cause of deposition.

The statute 43 Geo. III. c. 54, provides, § 21"That when any complaint from the heritors, minister or elders, against the schoolmaster, charging him with neglect of duty, either from engaging in other occupations, or from any other cause, or with immoral conduct, or cruel and improper treatment of the scholars under his charge, shall be presented to the presbytery, they shall forthwith take cognizance of the same, serve him with a libel, if the articles alleged appear to them to be of a nature which requires it, and, having taken the necessary proof, they shall acquit, or pass sentence of censure, suspension, or deprivation, as shall appear to them proper, upon the result of such investigation, which judgment shall be final, without appeal to or review by any court, civil or ecclesiastical."

Lord Justice-General.-This is a case rather out of the ordinary course, but I have not seen any legal grounds for altering the interlocutor of the Lord Ordinary. In the first place, I think we must recollect, that though the pursner states it as an anomaly that the presbytery here act both as judges and prosecutors, this is a duty imposed on them by statute, and can be no objection to their proceedings. This statute bears-(reads § 21). Observe, "any complaint." Now that, I hold, means any complaint whatever, whether verbal or otherwise; the words are very broad. And the words, "presented to the presbytery," I hold to mean, presented either in writing or in words. Now, it is quite beside the case to say that there is anything in this case which makes it wrong in the presbytery to take the character of prosecutors. They are enjoined by the statute to do so, and they would have been liable if they had not complied with the direction of the statute. Then the summons says that a complaint was presented to the presbytery, and they entertained it, and so forth. Now, as to the statement that the presbytery did not make proper inquiries and precognitions before they proceeded in the matter, I find nothing in the statute as to anything of this sort. What the statute says is, that they are to take cognizance of such a complaint, and, if they find anything in it, they are to take steps against the schoolmaster.

But I think we must look a little more narrowly into this summons, and see what are the grounds on which it is said that the presbytery have violated the statute. It states generally

that there were no grounds for the said charge, and that the pursuer should not have been made the object of libel. How can we take on ourselves to tell this presbytery that there was no ground for their doing that which they did conscientiously, and in the discharge of their duty. The whole summons is framed in that vague manner, that the whole proceedings were illegal. No doubt these proceedings were reduced, but we find, from the Lord Ordinary's interlocutor, that the sole ground of his judgment was the case of Kilberry. Now, it is on this bare statement of the matter, and on these general averments, that we are now called on to sustain this summons, concluding against all the members of this presbytery nominatim. Now, all that is said here is said, we must remember, to have been done by the presbytery-by the defenders as a presbytery— and this, your Lordships will be glad to see, is not a case in which there has been any departure from the ordinary procedure. Now, then, admitting the propriety of the rule fixed in the case of Kilberry, that the proceedings in such a matter must be conducted according to the rules of the common law, and properly authenticated, and as it is a legal rule, and one which must be observed, that evidence is to be signed-since that has not been done here, we must hold, with the Lord Ordinary in the reduction, that the proof has not been duly authenticated. But then the question remains, when the presbytery are acting under the act, and not going out of their way, but following out the directions of the statute, if they do not get the depositions sufficiently authenticated, does that failure lay a sufficient ground for damages against this tribunal? I for one cannot think it does. In the case of Kilberry no such action was ever raised; and when we consider that the presbytery were not usurping any authority or jurisdiction, but following out a statute under which they were bound to take up this complaint, it is a very serious thing that they should be charged with damages. Before proceeding with any such action as this, it is, I repeat, a very serious thing to say that a court of justice, when they are proceeding conscientiously according to their statute of constitution, are to be made liable for a fault of judgment. There are many decisions to the effect that, in a case of this kind, the pursuer must set forth malice. Here there is no insinuation of the kind. We have the presbytery doing what, I have no doubt, all these gentlemen felt to be a very disagreeable and irksome duty; and when they are found to have made this slight mistake-for the general allegations in the summons I think nothing of-are they to be subjected in damages? As to the decisions quoted, that of Milhollan was a case of a party wrongfully kept in custody. Of course the wrongdoer there was not to be secured from damages simply because he was a justice of the peace. Then the idea of drawing a parallel between this case and that of the presbytery of Auchterarder, is too absurd. On the whole, being of opinion that the presbytery are not liable for an error of judgment, I think a summons of this nature, unless malice be averred, clearly incompetent.

Lord Mackenzie.-I cannot find any sufficient ground for overturning the judgment of the Lord Ordinary in this case. It does not clearly appear whether it is as judges or prosecutors that the conduct of the presbytery is said to have been wrong. Their position, in either of these characters, is quite distinct. I don't see, however, that they are said to have done anything wrong in their character of prosecutors. All that the statate requires to entitle the presbytery to institute proceedings against a schoolmaster is, that there shall be a complaint laid before them. Now the libel expressly states that there was a complaint. Under this head, therefore, there is clearly nothing in the case. Suppose that a procurator-fiscal were bound by statute to raise an action against a certain party on a complaint being made to him, would he be liable if he did so? The statute requires the presbytery, on a complaint being laid before them, to proceed to prosecute; and, therefore, as prosecutors, I don't see that any case is made against them. Then, what is said next is with regard to the defenders as a court. This is a court in this matter under a particular statute, and with a decided jurisdiction. This cannot be said, then, to be a mere wrongous act, as if by persons having no right whatever to do what they are stated to have done. This act was done by the presbytery as a court having jurisdiction. No doubt it is argued that they went out of the statute, and, therefore, that they cannot be considered as acting under the statute at all; that the same defect which causes the reduction of the judgment must take it out of the statute altogether, and the presbytery must therefore be subject to damages, in the same way as if they had been persons without the pre

tence of a jurisdiction. But I cannot go that length. The decisions do not, and I don't think they could reasonably go that length. It appears to me that, when a statute constitutes a jurisdiction, and gives directions for the execution of that jurisdiction, it may well be that neglect of the requisites of the law may expose the judgments under that statute to be quashed; but it is not necessary that the judges should be held as if they had had no jurisdiction-as if they were not a court at all. I think the two cases are very different. Nothing, sometimes, is more diffi cult than the interpretation of a statute. Suppose the error of the presbytery had been the most blameless possible-suppose the judgment had passed by a close majority-that judgment may be quashed; but it does not follow that the presbytery are therefore to be held as not to have been acting as judges at all. It comes, then, to this, if the presbytery are acting as judges, they are entitled to the benefit of the general rule, which has never been contradicted from the time of Stair downwards, that you cannot prosecute a judge for what he has done judicially, unless you aver malice. The word malice, no doubt, may be taken in a very wide sense-perhaps it does not require to be pat in the issue. On that point I remember we had some dispute; but the averment of malice must be made on record. I don't know, indeed, whether it is necessary to put in that very word. If you put in what necessarily implies malice, it may not be necessary to insert the word itself; but still that is generally done-and in one way or other malice must be libelled in an action of damages against a judge on account of anything done by him when acting judicially. Malice certainly is a word which has a very wide meaning. It means, generally, bad motive; malice may be neglect, or ill-will to a party, or too-good will to him; it may be laziness, or drunkenness I should think-take it as wide as you will. But there is nothing of that kind here. It is not said that the presbytery were not trying to do their best. Many things, no doubt, are stated here, which it is said the presbytery should have done, and which they did not do; it may be that the case is so clear as to infer malice; but if so, why not aver it? That is the usual argument in such cases. Then, as to what is said as to the judicature act-that act says that the whole matter of the action should be set forth in the summons, and that is still more the rule when a condescendence has been allowed. It may even contain more than is in the case, but certainly not less. It must contain the special facts of the case. But this case does not contain that. On the whole, I don't think we have here such a case that we could decide in favour of the relevancy. I do not think we can send this case to a jury; we should just give them the chance of going wrong, If they decide in favour of the pursuer without an averment of malice, we must just hold that decision not to be relevant. But we can do that now; and, therefore, I am for adhering to the interlocutor of the Lord Ordinary.

Lord Fullerton. I entirely concur. The first thing which strikes me is, that the only ground of damage to which we can look is the failure to authenticate; for, as to the general averment that the presbytery went contrary to the rules of law, that is so vague that I cannot attend to it at all. Then, as to their being prosecutors, and that they did not make the proper inquiry before proceeding against the pursuer-(reads summons)-the statement is, that the complaint was made, but that it was groundless. But that is no objection whatever to the statutory proceeding. It is clear that so far all these proceedings were right; and, in fact, there was a judgment against the pursuer on that point in the Bill-Chamber, which was never reclaimed against. So the point is just this, whether we can sustain a claim of damages, founded on that oversight as to authentication. I have no doubt on the point. In some cases, the question, whether a party is entitled to plead privilege, depends on points which may come out in the facts; and, therefore, there can be no demand for an averment of malice, and the case is sent to the jury, with power to the judge, if, in the circumstances, the plea of privilege is inadmissible, to direct accordingly. But there is nothing of that kind here. This is a clear case of privilege. The defenders acted as judges, and judges without appeal; they being so, and I being satisfied that they did act as judges, the case seems 20 me quite clear. Being judges, they are entitled to that privilege to which all judges are entitled, of pronouncing judgment with out any liability, if they act according to the best of their power and unless malice be averred. I do not go into Lord Mackenzie' inquiry as to what malice is. But what is the ground on which the pursuer here rests his case? It is said that the presbytery are to be considered as judges only in so far as they acted con

form to the statute. Now I do not understand that the jurisdiction of presbyteries over schoolmasters depends on that statute at all. That jurisdiction they always had, but they held it under a power of appeal to the church courts. That appeal was taken away by this statute, and then arose the question in the case of Kilberry, which was a case of quite a different nature from the present. There, the presbytery wanted to make out that they were not bound by the ordinary rules of law, and it was held that, in virtue of their jus supereminens, the Court of Session were entitled to set aside the proceedings as irregular(reads report of House of Lord's decision). All that was decided there was, that the presbytery, if they act informally, have no immunity by the statute from the common rules of law, and their proceedings will be set aside by the supereminent powers of the Court of Session; and so Lord Ivory has very properly applied that statute here. But can it be said that, therefore, they forfeited their character as judges? It is argued that they held their whole power under the statute, and that, if they go wrong under it, they are no longer under it at all; that they have no more power than any set of men acting without any jurisdiction whatever. Now, suppose the presbytery had, in former times, deposed a schoolmaster, and the case had been carried to the superior ecclesiastical courts, which had altered the judg ment because the proof was not properly taken, could he have had his action of damages? The presbytery are no more bound than any other court. No court has a right to go wrong. Take the case of an action before the Sheriff: If he decides improperly, his judgment may be set aside by reduction or advocation. But could it be pleaded that, if the Sheriff had decided without a proper authentication of the proof, he had no more power than any man taken off the street, and, therefore, was liable in damages? No doubt the presbytery in the present case have gone out of the statute, in so far that they have done wrong, and that has been set to rights by Lord Ivory in the reduction. Then, as to the damage to the pursuer's character, that has been rehabilitated by that judgment also. I do not see that that gives the pursuer a right to damages from this court, any more than from any inferior judge, who has gone wrong without any malice on his part, and has been set right by a superior judge. On the whole case, I have not the least doubt.

Lord Jeffrey.—I am of the same opinion. The whole difficulty arises from the assumption, that the reduction of the judgment of the presbytery renders them liable in damages— though it is admitted, and must now be held, that that annulment went entirely on the want of a proper authentication of the proof. The whole argument comes to this, that if the proceedings of a court are set aside on the ground of any informality, they cannot be recognized as the proceedings of a court at all; and the judge or judges must be answerable for any loss or damage that may ensue. My feeling is very much the same as that which Lord Fullerton expressed in the latter part of his speech. There is no difference between this court and any other. All courts are liable to have their judgments altered, whether their jurisdiction is settled by statute or at common law. On the principle pleaded, in every case where a certain Course of procedure is necessary-if that procedure is not strictly followed out, a case of damages would arise against an inferior judge. The Sheriff, for instance, is, in certain cases, entitled to order a sale, or a meeting, only on certain inducice. If, by any chance, the full length of such inducia be not given, he would be liable in damages. Then, again, the judge must always sign his deliverance. I remember, in one case, in the hurry of the moment, the Sheriff only signed his christian name, and not his Furname. That was a nullity, of course; the whole subsequent ¡roceedings were null, and were annulled by me. But could anybody say that the Sheriff, in that case, was liable in damages when acting in optima fide? As for damages for slander, it does seem the height of extravagance to say that the judge shall be liable as a slanderer, wherever, from some formal flaw in the procedure, an action involving the character of one of the parties shall prove abortive. Nor is there only one, in such a case, who might bring his action of damages; the party accusing, as well as the party accused, would be equally entitled to come against the judge by whose mistake or omission he might say be was disappointed of a judgment, and put to fruitless expenses. To suppose, that if the proceedings of a court are set aside, it loses the character of a court, is an extravagance which I never heard of before. This is perfectly distinct from the case of Milhollan, and the other cases referred to. For, in the first place, all these were cases in which the act in which the nullity or irre

gularity occurred was an executorial act, from which instant damages resulted-as, for instance, imprisonment of the person. To take the case of the Sheriff again-if, in such a case, he had only signed half his name, he would have been liable. But, secondly, in these cases there was direct penal damage to the party-an infringement of the liberty of the subject; and, from an early period, there has been the greatest jealousy in our law as to any violation of personal liberty. If the presbytery had done anything of that kind-if they had put the pursuer into confinement, I do not think their judicial character would have afforded them any protection But, except in cases of that nature, I am not aware that any person acting in a judicial character can be made liable for nullities arising in their proceedings. I hold that the two classes of cases are altogether disparate, and have no connection whatever. Now, nothing is libelled on here but that the whole proceedings were a tissue of irregularities. Could we send that to a jury? That the action is directed against the court, is manifest. All the acts spoken of are judicial acts, not those of a prosecutor; they are altogether judicial. But, further, the prosecutors are not the individual members of the presbytery; by the statute, the prosecutors are the presbytery. In fact, I think there is a mistake in the summons. There is a sort of general conclusion against the defenders, as a presbytery, generally; but I should have been iuclined to have dismissed the case on the ground, that it is not directed against them as judges, if it had been worth while. Penney-Part of the damages consists of the expenses to which the pursuer was subjected in the course of the proceedings before the presbytery.

Lord Justice-General.—I should give it as my opinion that the pursuer is not entitled to get these expenses. Lord Mackenzie.-We have nothing to do with that matter. We simply give absolvitor.

The Court adhered.

Pursuer's Authorities.-M'Crone v. Sawers, 10th Feb. 1835 Milhollan v. Bertram, 21st Dec. 1826.

Lord Ordinary, Wood.-Act. Penney, Fraser; Andrew Howden, W.S.Agent.-Alt. Anderson, G. G. Bell; William Young, W.S. Agent.-W. Clerk.—¡W.G.T.}

6th December 1849. FIRST DIVISION.

No. 37.-MRS. MARGARET SHARP or SMITH, Pursuer, v. Rev. WILLIAM ROBERTSON and others, Defenders. Summons-Relevancy-Church-Reparation-Damages-Statute 43 Geo. III. c. 54-A schoolmaster against whom a sentence of deposition, on the ground of adultery, had been pronounced by the presbytery, having reduced the same on informality, the woman with whom he was alleged to have committed adultery raised an action of damages against the individual members of the presbytery, but without libelling malice-Held that the action was irrelevant."

This was an action of damages against the individual members of the presbytery of Auchterarder, at the instance of the woman with whom the pursuer in the preceding case was alleged to have committed adultery.

The summons bore, that a libel was served on James Dunbar, at the instance of the defenders,

"all calling themselves members of the presbytery of Auchterarder; which libel is dated 8th October 1844, and sets forth that the said James Dunbar did, at the times and places therein mentioned, hold carnal knowledge and intercourse with the pursuer, whereby she and the said James Dunbar were guilty of adultery, and concludes that the said James Dunbar should be deposed from his office of schoolmaster; and although the said James Dunbar made appearance before said presbytery, and denied the charge, and also objected to the relevancy and competency of the libel, yet the foresaid parties and the said presbytery proceeded to follow out the libel, and to take proof of the alleged guilt of the pursuer and the said James Dunbar, as charged in said libel: That no evidence was brought of the pursuer's guilt; but, nevertheless, the said presbytery, on the

10th day of June 1845, found the charge proven, and the said James Dunbar guilty of the crime of adultery with the pursuer, and pronounced the following sentence of deposition against him accordingly..... Whereupon the presbytery having considered the libel at their instance against Mr. James Dunbar, parochial schoolmaster of Madderty, which set forth that he had been guilty of the sin and scandal of adultery with Mrs. Margaret Sharp or Smith, did, and hereby do, unanimously find that the charge set forth in said libel has been sufficiently proven by the depositions of the witnesses, and that the said James Dunbar has been guilty as libelled; whereupon the presbytery did, by their vote, and hereby do, depose the said James Dunbar from the office of schoolmaster in the parish of Madderty, and declare the said office vacant from this date. The said James Dunbar being then called in, the above sentence was intimated to him; and the presbytery did farther ordain the Reverend William Stoddart, minister of the parish of Madderty, to make intimation of said sentence on Sabbath next, in the parish kirk, immediately after divine service."

The summons, after narrating the decree of reduction, proceeded

"That the charge contained in said libel as against the pursuer was altogether false and unfounded;" and that she had suffered damage in consequence.

In her condescendence, the pursuer stated further, that the Rev. William Stoddart, minister of Madderty, one of the defenders,

"along with two of his own elders, made an informal and irregular complaint to the defenders, charging Dunbar and the pursuer as guilty of adultery-his whole object in this being, to rear up, by a judgment of the presbytery, an ex post facto defence against a pending action of damages at Dunbar's instance. 3. On the 9th of October 1844, a libel was served on the said James Dunbar at the instance of the defenders, who were well aware of the motives that induced Stoddart to make the complaint, which libel sets forth, falsely, calumniously, and injuriously, that the said James Dunbar did, at the times and places therein mentioned, hold carnal knowledge and intercourse with the pursuer, whereby she and the said James Dunbar were guilty of adultery. 4. The said libel was voluntarily raised by the prosecutors of the libel, with full power on their part to abstain from raising it. They raised it without any regular or formal complaint having been made to them, in terms of the statute. It was instituted without their making any investigations into the circumstances therein set forth. In no way whatever did they take the least trouble to ascertain, by any kind of preliminary investigation, whether the alleged charges against the pursuer and Mr. Dunbar were founded in fact or in falsehood, or had any foundation in any reasonable suspicion. They proceeded entirely with one view, viz. to get rid, at whatever cost to the feelings, character and peace of mind, of the pursuer, of a schoolmaster obnoxious to one of their number. 5. The libel was, in point of fact, laid improperly and irrelevantly; but the foresaid defenders, and the said presbytery, as prosecutors, insisted on proceeding, irregularly and illegally, to follow out the libel, and to take proof of the alleged guilt of the pursuer, and of the said James Dunbar, as charged in said libel. 6. The pursuer was innocent of the said crime of adultery. No evidence was brought of her guilt, or of the guilt of Dunbar. What was taken down in the shape of evidence did not possess any of the elements of legal proof. It was all the loosest hearsay-to the admission of which every objection that was stated was at once repelled by the defenders. The said libel was never served upon her, or intimated to her in any way; and although, after hearing of it, the said defenders were moved to allow her an opportunity of defending herself, or of being heard against the calumnious charge, yet they refused to give her any opportunity to do this. Nay the defenders illegally refused to allow her to be examined as a witness, though she was a competent witness, and was deliberately tendered by Mr. Dunbar. 9. The said sentence was wrongfully and illegally pronounced, in violation of the duty of the said defenders, under the statute 42 Geo. III. c. 56-not only inasmuch as there were no grounds for finding and publishing that the pursuer was guilty of adultery, but inasmuch also as the whole proceedings taken upon the said libel, and followed, or pretended to be followed, between the date of raising the libel and the date of pronouncing judgment thereon, were irregular and incompetent, and were such that no judgment could have

legally or competently followed upon them. None of the due forms of law were observed throughout. 11. The charge or statement contained in the said libel and sentence, as against the pursuer, was wrongfully, irregularly, and oppressively, made and insisted in without reasonable or probable cause, and without any inquiry or investigation to ascertain if such reasonable and probable cause existed. The charge was altogether false and calumnious. The pursuer and her late husband had always maintained an unblemished character; she is mother of a large family; and, at the time the crime is alleged to have been committed, she was fifty-two years of age."

The defenders pleaded-It is not competent for the pursuer to proceed against them without specially libelling malice or conspiracy to injure the pursuer. In their judicial capacity, the defenders were not only entitled, but bound, to make every inquiry pertinent to the case of Mr. Dunbar, and they could not be held responsible for any injury which the pursuer's character may have sustained in the course of such investigation.

The Lord Ordinary pronounced the following interlocutor: :

"Finds that there is no relevant ground of action libelled on and set forth upon the record against the defenders, and no allegation of malice or conspiracy against them for what was done by them as a court acting in the discharge of a public duty; and, therefore, assoilzies the defenders from the whole conclusions of the libel, and decerns.

The pursuer reclaimed.

Penney for pursuer-This case stands on a very different footing from the former. The proceedings against Dunbar are said to have been falsely and calumniously taken, and the pursuer is a person over whom the defenders cannot aver any jurisdiction. Yet in the proceedings, and under the sentence pronounced and intimated against him, which have now been reduced, the pursuer is held up by name as having been guilty of adultery. We are quite ready, in this case, to take an issue of malice.

Lord Mackenzie.-You cannot go beyond the summons. You cannot make a relevant out of an irrelevant record. The presbytery must still be held to have been acting as judges, and malice must be libelled. As to the point, that the pursuer's name appears in the proceedings, that arises from the nature of the charge. There cannot be such a thing as abstract adultery; it is a crime to which there must always be two parties.

Lord Jeffrey.-If Dunbar had been married, it might have been otherwise; but, here, the woman must necessarily have been mentioned, because he is not married, and could only have been guilty of adultery with a married woman. The old commissary style in the case of a woman was, that she had committed adultery with a person not her husband.

Lord Justice-General.-The summons here is still more scanty than in the other case.

Lord Mackenzie.-If there had been any averment of malice in the summons, the case would have been very different.

Lord Fullerton.-It is a curious case, for the man does not aver malice, and the woman does not aver malice against herself, but against him.

Lord Jeffrey.-It is odd to make this a charge against the judges. Suppose that, in the commissary court, the name of the woman had originally not been mentioned, but had come out in the proof, and the judges accordingly had been obliged to take it down in their notes, would that have raised a case of damages? There are many cases where, in the course of proof, people's names come out in a manner by no means creditable to them; but does it follow that, on failure of the case, they can bring an action of damages against the judge?

The Court adhered.

Lord Ordinary, Robertson.-Act. Penney, Fraser; Andrew Howden, W.S. Agent.-Alt. Anderson, Bell; William Young, W.S. Agent.-L. Clerk.-W.G.T.]

6th December 1849.

FIRST DIVISION.

No. 38. THE MAGISTRATES OF WICK, Pursuers, v. JAMES FORBES and others, Defenders. Jurisdiction-Forum Competens-Foreign-Process-Circumstances in which-Held, that an action for payment, brought in the courts of this country against a body of five executors, was competent, though two of them resided in England-and that without founding jurisdiction against those resident abroad. Title to Sue-Assignation-Process-A debtor having been allowed to escape from prison, the magistrates of the burgh paid the debt to the creditor, and, after his death, got an assignation from his widow and executrix, who had obtained a license to sue-Held that the magistrates had a good title to sue for the original debt. Question, Whether, in the circumstances, an assignation was necessary?

The summons in this case set forth, that, in 1818, decree was taken against the late James Forbes, under which he was charged and apprehended by the late John Gunn, formerly messenger in Dunbeath, but allowed to escape, in consequence of which Gunn paid the debt to the creditor, and took an assignation: That Gunn, by virtue of new letters of caption, incarcerated Forbes in the jail of Wick, but that Forbes made his escape, in consequence of which the magistrates of the burgh became liable for the debt, and paid the amount to Gunn: That subsequent to Gunn's death his widow and executrix granted to the pursuers an assignation of the debt and diligence which had followed thereon, "for any right or interest competent to her." Founding on this last assignation, the summons concluded for payment of the original debt and interest against the defenders, as the children and executors-dative of the late James Forbes. Two of the defenders were resident in London.

The Lord Ordinary repelled the preliminary defences, adding to his interlocutor the following

"Note.-The defences thus repelled are

"1. That the defenders, Alexander and Hotham Forbes, have been cited to this process without any legal warrant, or arrestment ad jurisdictionem fundandam. But no such proceeding was necessary. The Messrs. Forbes are confessedly joined with other parties in a decree dative, issued from a Scotch consistorial court in their favour, as next of kin of their father. In that capacity they and their kinsmen, as representing their father, got a decree against Sir George Dunbar for £200. The present action is brought against these parties as representing their father. And, surely, as parties holding an inchoate title from a Scotch consistorial court, they are bound to answer to all actions for constituting any debts against them as representing the defunct in every Scotch court. The whole executors form a quasi society established in Scotland. Out of five next of kin, three reside in Scotland; and they took out a license to sue from a Scotch court in their joint names. In such case, they are all subject to the jurisdiction of our courts, as much as the partners of a mercantile company carrying on business in Scotland are so answerable. Indeed, where a few out of a multiplicity of co-trustees confirmed, and most resident in Scotland, are cited to any of our Scotch courts, it would, it is believed, be unprecedented to Use an arrestment ad jurisdictionem fundandam to constitute jurisdiction universally held in practice to be indisputable.

"2. It is further pleaded, that the pursuers have no title, because they libel on an assignation from Mrs. Gunn, who never confirmed the claim libelled on. But Mrs. Gunn could not confirm it, as the debt had been paid to her husband before his death. This is conclusive. Mrs. Gunn, however, had a license to pursue, which is prima facie evidence of the propinquity on which she granted an assignation. If any assignation was necessary, (which, upon the narrative of the summons, is doubtful), an assignation from her was sufficient, and all that could be got." The defenders reclaimed.

Penney for defenders-1. The objection is only made

for the two executors resident in England. It is incompetent to call them in a Scotch court without some previous proceeding, and quite unnecessary, since there is a good action against those in Scotland, without calling those abroad. The principle of reconvention applies only where the parties to both litigations are the same. 2. Mrs. Gunn, though she has confirmed, has never expede confirmation to this debt; and, indeed, the debt having been paid during her husband's life, it could not be the subject of an assignation by her. [Lord Justice-General.-If she has a license to pursue, confirmation may be expede before extract.]

That would be a perfectly good answer were Mrs. Gunn suing in her own name; but she is not.

Dundas for pursuers-1. Cited Bishop v. Mersey and Clyde Co. 19th Feb. 1830. 2. Miss Gunn could not confirm to a debt which was already paid; but, having a license to pursue, her assignation was quite sufficient to support the action.

Lord Mackenzie.--I do not see why she could not confirm to this debt. It was not extinguished, else how could there be an assignation of it?

Lord Justice- General.-There is no doubt as to the action being good against the three executors resident in Scotland. The pursuers can have a good decree against those three.

Lord Mackenzie.-I am rather inclined to hold that the pursuers can bring their action against all the executors. The body of executors are bound to account in Scotland, and the majority are still resident here. I rather think the action can go on against the whole.

Lord Fullerton.-I am just afraid of adhering to this interlocutor, because the principle might be carried farther in other cases. It is going far to hold, that because a party confirms in this country, he is liable in any action raised here. It often happens that an English executor is obliged to confirm here, because there are funds in this country. Now, in such a case, could he be called as a defender without first founding jurisdiction, because he has so confirmed? I don't think we have ever gone so far. Lord Jeffrey.-I am rather inclined to agree with the interlocutor reclaimed against. I think the office of executor is unum quid; and the whole of the executors are alleged, and not denied, to have been at one time here. Then they are all sought to be convened here by the creditors. Now, the whole body was once here, and they are all indissolubly connected; and while they are bringing an action here, and so adding to the estate, I do not see how they can say that they are not properly convened in If the quorum were here--and I do not know if there is any quorum in this case, though the majority is here, and that, I suppose, makes a quorum-I do not know that the competency could be contested. But suppose it otherwise, are the creditors to be left without remedy? Suppose one-half of the executors were here, one-half on each side of the border, what should we decide? I think the executors have made their election by confirming here. Those resident here draw after them the forisfamiliated members, so to speak, of the same body, in any action by which they are bound to make good the succession. The analogy of a company of merchants having a branch in Scotland, is, I think, a good one. I am not much moved by Lord Fullerton's view. If a party, an executor in England, is found here suing an action as executor, I would not say that he may not be called on to answer in our courts.

this case.

Lord Mackenzie.-It is a little puzzling, but I should rather keep the executors here, where they have undertaken a most solemn obligation. What ground of exemption have they, seeing they have bound themselves to account to our courts?

Lord Justice-General.-I look on the action as the best proof that they are acting and doing their duty as executors; and then the present action is brought against them as executors. I think we should adhere, in the special circumstances of the case.

Lord Mackenzie.-As to the other question, I do not see why Mrs. Gunn's assignation should not carry her license to sue. One may certainly assign an action; and why not, then, a license to sue?

Lord Jeffrey.-This is really a casus necessitatis. As it is admitted that the debt is not extinguished, and that the right is