gallows." He had not committed a capital crime, so that the statement was not true. The bench laid down the circumstance as a palliation, but the jury found absolutely for the defender.1

Privileged Statement.-The privilege arising from the position of the party who makes the statement, is best illustrated in the proceedings of courts of justice, where statements are frequently made which do not turn out to be true. When any statement is made by a judge, or an officer of the court, bearing in any way on the business on hand, a party, to recover damages, must be able to prove that the words were spoken with a malicious intent, and he must do so extraneously and not from the nature of the words themselves. So it was found where, on a motion for mitigation of punishment by a person convicted of poaching, two justices, as a reason against mitigation, charged him with theft.2

In pleadings before courts of justice, there is a considerable latitude in the charges which parties may bring against each other, or in relation to the witnesses, provided they be relevant to the proceedings; but irrelevant injurious statements are actionable slander.3

Corporations and bodies whose character partakes of the nature of a corporation, clerical or lay, such as presbyteries and other church courts, are entitled to enter into those inquiries which are necessary for fixing the rights and liabilities accruing to parties by the act of belonging to their body. So a kirk-session of seceders were not liable to damages for depriving two individuals of their functions as members, for alleged misconduct, according to the rules of their body.4 So, also, the statements made by a master of his shopman to a society of Bereans, according to the rules of that body of which they were both members, were not actionable.5

It has been found that a clergyman is not privileged in the pulpit, and that when a parish minister had there made personal attacks on the editor of a newspaper, on account of the position which the paper had taken in ecclesiastical politics, he was found liable in damages, and that it was not necessary to prove special malice.6

1 Ogilvie v. Scott, 19th March 1836.-2 Robertson v. Barclay. House of Lords, 4 W. S. 102. 5 Mur. 326. Gibsons v. Marr, 3 Mur. 271.-3 Forteath v. Fife, 18th November 1819. Young v. Anderson, Hume 601. Davidson v. Megget, 12th May 1821. Yeats v. Ramsay, 6th December 1825. Black v. Brown, 2d March 1827. Marianskie v. Henderson, 17th June 1841. Hustler v. Watson, 16th January 1841. Brownlee v. Kirk Session of Carluke, Hume 596.5 Grieve v. Smith, Hume 637.- Adam v. Allan, 23d June 1841.

Malice. It is essential to actionable defamation that it should be done maliciously; but in law malice is presumed where the circumstances indicate a design to injure, or culpable indifference whether injury arise or not.1

Where the statement is false, malice is always the presumption. Practice seems, however, to make a distinction between the originator and the mere circulator of a report. Whoever industriously propagates a slander about another-whoever takes pains to let it reach quarters where it may do mischief, is undoubtedly liable; but it has been held that the mere casual statement by an individual of a current rumour is not actionable.3 The cases, however, in which this principle was admitted are comparatively old, and in that of Gardner the real author of the statement was named, and was under prosecution. In general it cannot be said that any person communicating an injurious statement is safe from the consequences should it turn out to be untrue. When a libel is published in a newspaper, it is no defence that other newspapers have published the same statement.4 There must in all cases be a special intention to injure an individual, or else he must show that he has been injured through recklessness. Thus John Craig having been printed instead of James Craig, in a list of bankrupts in a newspaper, which in a subsequent number corrected the mistake, it was found that a John Craig, who could not show that he had sustained injury, was not entitled to damages.5

When angry and abusive expressions are exchanged in drinking parties or in quarrels, the law does not generally allow even the party who has suffered most from the tongues of the others to obtain damages in a civil action. public are the party which the law seeks to protect on such occasions by punishment when the dispute has amounted to a breach of the peace.

The

Where, however, a person being lawfully impeded, checked, or reprimanded by another-as, for instance, when stopped in the act of trespass, is irritated and becomes abusive, he is liable for what actionable expressions he may use. When a

1

Tytler v. Macintosh, 3 Mur. 244. Smith v. Innes, 15th February 1827. Greig v. Edmondstone, 4 Mur. 72.- Rose v. Robertson, 20th May 1803, Hume 614. Gardner v. Marshall, 8th December 1803, Hume 620. See Scott v. M'Gavin, 2 Mur. 498.- Aiton v. M'Culloch, 3 Mur. 288.5 Craig v. Hunter, 29th June 1809.-6 Forbes v. Young, Hume 627. Ewart v. Mason, Hume 633. M'Crae v. Stevenson, Hume 631. Gibson v. Douglas, Hume 639. Harper r. Fernie, Hume 643. Hyslop v. Miller, 1 Mur. 54. Grant v. Smith, 15th February 1837. See Bryson v. Inglis, 15th January, 1844.-7 Grahame v. Mackenzie, Hume 641.

T

person is designedly roused by another to speak in a defamatory manner of a person with whom he is at enmity, he is liable for what he says.1

Public Men.-When an individual has placed himself in a public position, and especially if he hold office as a servant of the public, and is remunerated for his exertions, the method in which he fulfils his duties is liable to a degree of critical inquiry to which the conduct of individuals in their private affairs is not amenable. "A member of the state," says Lord Chief-commissioner Adam, " or any inferior public officer, is liable to have his conduct submitted to public animadversion and discussion; and however severe, and however it may affect his feelings, such a publication will be protected; but if private or personal matter is brought forward, or the individual turned into ridicule, that alters the nature of the discussion." 2

Criticism.-Upon like principles, the author of a book must submit to the freedom of criticism, and has no recourse if the press should very severely attack the literary merits of his book or the opinions he promulgates. But literary criticism must not be made the vehicle for attacks on private character or personal habits.3

The damages awarded in actions for slander or defamation consist generally of two elements:-1st, Compensation for any loss which the statement may have occasioned to the party; and, 2d, A solatium, as it is termed, for his wounded feelings. It is not necessary, however, that a pursuer for damages should prove that he has suffered any specific loss, if he show that the libel was intended to apply to him.4

In the Court of Session, actions of defamation are among those specially appropriated to Jury trial. It has long been settled that such an action can be raised in the Sheriff Court, where it will be decided without a jury; and that it is competent also to the courts of magistrates. It is believed that petty actions of scandal are frequently settled in the Small Debt Courts.

SECT. 3.-Injuries to the Person.

Assault. The simplest description of Personal Injury is Assault. Actions on this description of injury, when brought in the Court of Session, go to a jury with all their circum

1 M'Pherson v. M'Pherson, Hume 644.-2 Aiton v. M'Culloch, 3 Mur. 291. See Hamilton v. Stevenson, 3 Mur. 75.-3 Leslie v. Blackwood, 3 Mur. 173.- Brown v. Wason, 22d March 1838, Macfarlane, 38.- Forest v. Crichton, 12th December 1807.

stances, and if the assault be proved, and there be insufficient justification, or none, they award damages according to the extent of the outrage. Assault is justified by the protection of person, property, or relations. It may be questioned if any one who commences the strife by being the first to strike, can claim civil damages, although if the other party exceed in his retaliation he may be liable to trial for an offence. Provocation by personal abuse is in law no vindication of an assault, but it is generally a good ground for mitigating damages. It is no bar to an action of damages that the assaulter has been criminally tried for the offence; and it is a principle of law that the damages awarded ought to consist both of pecuniary compensation for the injury, and a solatium for the wounded feelings of the sufferer.2

Wrongous imprisonment is a good ground for an action of damages against all concerned, whether private persons or officers of the law. A statute of the Scottish Parliament, called the act 1701, provides means by which persons apprehended under criminal charges may procure liberation, or urge on their trial. The details of this branch of procedure belong to criminal law. Distinct penalties are leviable for breaches of this act, proportioned to the rank of the sufferer, and recoverable "before the Lords of Council and Session, to be discussed by them summarily, without abiding the course of the Roll." Proceedings for the penalties must be brought within three years after they are incurred. This statute does not deprive parties of their alternative of the remedy at ordinary law by action of damages before a jury; and imprisonments on conviction of crimes, as well as under summary proceedings before magistrates, with all imprisonments for civil debts, are not within the act, and are remediable by ordinary process of law. Unless in so far as they are protected by statute, magistrates and officers of the law are responsible not only for the consequences of malicious proceedings in furtherance of their own designs or of an oppressive conspiracy, but also for mischief arising from negligence or ignorance. On the complaint of a seller of goods in a public market, that a purchaser had carted off the goods without paying for them, a magistrate, without written information, granted warrant to imprison him without specify

Thom v. Graham, 14th July 1835. See Hyslop v. Miller, 15th March 1816. Haddaway v. Goddard, Ibid. 148. Forgie v. Henderson, Ibid 1 Mur. 43. Lang v. Lillie, 4 Mur. 82.- B. P. 2032.-3 1701, c. 6.Strachan v. Stoddart, 13th November 1828. Pollock v. Clark, 12th Nov. 1829. Richardson v. Williamson, 1st June 1832.

ing a conviction or the ground of imprisonment. The person was detained a quarter of an hour; an alleged local custom of the burgh was pleaded by the magistrate, but the plea was overruled, and he was found liable to damages.1

By a series of statutes called the Twopenny acts, for the protection of justices of peace and other judges, when their proceedings against person or property are quashed in the higher courts, they are not to be liable, besides repayment of any penalties that may have been levied, to greater damages than 2d., with no costs; and if it be shown that the person against whom the proceedings lay really was guilty, no damages or costs are recoverable. The acts do not relieve the clerks of court and other officials from responsibility for irregularities.3

To take magistrates out of the protection of the acts, the prosecution must set forth and the evidence show that they have proceeded maliciously. The several officers of the law or others who are concerned in an illegal imprisonment are responsible for their own acts, and it was found that a Procurator Fiscal was not liable for the wrong committed by officers acting in an illegal manner under his instructions, unless the illegal act were part of the instructions.5

Seduction is a ground for an action of damages in Scotland; but such prosecutions are of comparatively rare occurrence. The action may be brought by an unmarried woman who is the sufferer. There do not appear to be any precedents on the question, whether the parents or other relatives of an unmarried female have action in such a question. has been decided that a husband has action against the seducer of his wife.7

SECT. 4.-Injuries to Property.

It

Where injury is done to the property of another by the manner in which one uses his own, the injury generally comes under the term Nuisance. Where it affects many individuals, it comes properly within the department of Public Law; and though in Scotland the distinction between Public

Rae v. Sinclair, 12th July 1838, Macfarlane, 73.-2 43 Geo. III. c. 141. 9 Geo. IV. c. 29, § 26. 11 Geo. IV. and 1 Wm. IV. c. 37, § 13. Malonie v. Walker, 21st January 1841.-3 M'Kellar v. Maclachlan, 18th December 1841.- Anderson v. Hill, 3d February 1837.-5 Munro v. Taylor, 25th February 1845.- Linning v. Hamilton, M. 13909. Buchan v. Macnab, M. 13918. M'Candy v. Turpy, 3d March 1826. Stewart ". Menzies, 27th June 1837.-7 Stedman v. Stedman, M. 13909. Maxwell v. Montgomery, M. 13919. Paterson v. Bone, M. 13920.