The Sun.
London, England, 1829-06-26 00:00:00

EDINBURGH COURT OF SESSION.

SECOND DIVISION, MAY 14.
DEFAMATION BY JUSTICES OF THE PEACE---MALICE

-RELEVANCY---DANIAGES:

ROBERTSON V. BARCLAY ALLARDICE AND BOSWELL.

We have had occasion more than once to notice
this case, which was again before the Court yester-
day and to-day; and from its general importance to
Justices of the Peace, as well as to the community
at large, we are induced to enter a little into detail.
It will be in the recollection of our readers, that
the defenders were convened in an action of da-
mages at the instance of the pursuer, who is a
country shoemaker, for certain injulious expressions
made use of by them, in the course of deliberating
upon a complaint preferred against him for a breach
of the Game Laws. At the outset, after a debate
upon the relevancy of the action, the cause was, in
May, 1824, transmitted from the Court of Session
to the Jury Court ; and, after certain proceedings
there, it was in November, 1825, upon a motion
for the defender, Mr. Barclay Allardice, transmitted
to the Court of Session, for the determination of the
Court, whether the action was relevant ; and
printed cases upon that point being presented to
the Inner House, their Lordships, upon the 13th
of December, 1827, unanimously sustained the rele-
vancy, and again remitted the cause back to the
Jury Court, where the following issues were tried
by two successive Juries, upon the 24th March and
21st July, 1828 :
" It being admitted that the defenders are Jus-
tices of Peace and Commissioners of Supply for the
county of Kincardine, and, in that character, at-
tended a meeting at Stonehaven, in the said county,
on the 3d day of March, 1823, and that the pursuer
was then brought before the said Court, upon a
complaint preferred against him for unlawfully shoot-
ing at game, and being thereof convicted, he did
then and there make application to the Court to
mitigate the punishment—whether, at the time and
place, and pending the proceedings aforesaid, and in
presence and healing of the persons then and there
assembled, the defender Robert Barclay Allardice,
did falsely, maliciously, and calumniously say, that
the pursuer, besides being a poacher, was a thief;
that he had been known to steal bee-hives and lea-
ther; and that the defender, John Boswell, knew
this to be true; or did falsely, maliciously, and
lumniously use or utter words to that effect, to the
loss, injury, and damage of the pursuer :—whether,
at the time and place, an, pending the proceeding
aforesaid, and in presence and hearing of the per-
sons aforesaid, the defender, John Boswell, did
falsely, maliciously, and calumniously say, that he
was informed by a respectable farmer, now dead,
that the pursuer stole a quantity of leather, or did
falsely, maliciously, and calumniously, use or utter
words to that effect, to the injury and damage of the
Bothpursuer.
JuriesD a mfaoguensd laidfo r a t
theBoo/.'
pursuer on both issues.

The first verdict, which found the defenders
liable conjunctly and severally in two hundred
pounds of damages, was afterwards set aside, and a
new trial granted, ugon the ground of the damages
being awarded conjunctly and severally against the
defenders, in respect that their defences were dis•
tinct—that the acts done and the words spoken
were different in charge and proof—and that they
were not in pari deliclo. By the second verdict the
damages were assessed at 125/. against each of the
defenders. A third trial being applied for, and re-
fused, a bill of exceptions was presented, in which
the defenders contended that the presiding Judge
at the last trial (the Lord Chief Commissioner), in-
stead of charging, as his Lordship had done, that
although no action for damages was competent at
all against Judges of the Supreme Courts of Scot-
land for words spoken by them in a judicial capa-
city, yet that such an action lay against Justices of
the Peace, provided the words were spoken mali-
ciously, and that where no evidence was adduced
that the words spoken were true, they must be held
to be false, he ought to have charged the Jury—
" lsf,—That for words spoken by the defenders,
when sitting in judgment as Justices of Peace, and
deliberating upon or delivering the grounds and rea-
sons of a judicial determination, the defenders are
entitled in law to complete protection and immunity
even where the words spoken are alleged to be ma-
liciously spoken; 2dly, and separating, that the evi-
dence of malice in the present case ought to be direct
and express, by proof of malice, wholly independent
of the alleged intemperance, or even falsehood, of
the words spoken; and that from the mere absence
of evidence of the truth of the words spoken, these
words could not be held to be false, to the effect of
affording legal or competent evidence of malice
against the defenders, acting as aforesaid."
The COURT, after hearing Mr. H. J. Robertson
in support of the bill, and Mr. Borthwick in answer,
disallowed the exceptions, declared the last verdict
the
uni
gtsst,ur
ae;ttres.
to be final, and awet'hareradteuditfmeixiaipmneoniusnsefs to
inferior
ino holding,
beyondTlreir Lordshipl
s doubt,w
should turn aside from the matter before him, and
utter gross calumny against a party in a cause, he
was answerable for the consequences, if malice
could be proved.
Now, in the present case, the pursuer, called be-
fore the defenders for an offence against the Game
Laws, and while the only matter for consideration
was, whether they would restrict the 201. of pe-
nalty which, under the statutes, they were authorised
to impose, had been accused of theft—a crime for
which he might have been punished capitally. On
this point the Lord Justice Clerk remarked on the
very wide difference betwixt an offence under the
Game Laws, and an accusation of theft, in which
the other Judges concurred ; and all of them agreed
that, whatever might be the law of England us to
the immunity and protection afforded to Justice; of
the Peace, and other inferior Almistr4tes,a point
on which it was unnecessary for them to express any
opinion—they had never, from the first, entertained
a doubt that, by. the law of Scotland, at least, which
must be the rule in the present ease, the Supreme
Courts had a controuling jurisdiction over the in,
ferior Courts; and an inferior Magistrate,
guilty of
any scandal, maliciously uttered, though judicially
spoken, was responsible for the consequences, where
malice was proved.