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sum of £5000 damages, for the injury the deponent has sastained at the hands of the said Rev. Alexander Campbell, by the published letter referred to, and by statements made in lectures in Scotland.” The respondent, no doubt, does not require caution to that amount; but the whole effect of his minute restricting the caution is simply to limit that ludicrous and extravagant claim to £200. The action of damages, it must be remembered, was not yet brought. Well, then, Mr. Campbell presents his note of suspension, and the Lord Ordinary grants warrant of liberation, as craved. In these circumstances, I am decidedly of opinion, that, even if your Lordships were to hold that the specification of debt, as founded on the claim for damages, on account of the slanders contained in the letter, was sufficient; yet the statements as to the slanders uttered in various places in the course of lectures, did not furnish good ground for applying for a meditatio fugæ warrant. I conceive that much more specification-much more detail than is here presented-is necessary in such a proceeding as this. So, then, I cannot but hold, that, although in one corner of this petition there may be set forth sufficient ground, yet, since this warrant was granted on all these claims together—the greater part of which cannot support it-it was granted on wrong grounds.
Lord Mackenzie.-I agree altogether with your Lordship, that this warrant is quite indefensible, so får as it proceeds on the claim of damages for slanders uttered at the various times and places referred to in the petition; and if the circumstance, that these statements are there, has the effect of destroying altogether the competency of the petition, I agree also that it must be dismissed. But I doubt that. Are we, in such an application as this, unable to make any separation! If it is competent for the Sheriff to make a separation--to sustain one portion of the petition, and reject another-is it not so for us also? Suppose à man presents an application for a warrant as in meditatione fugæ founding on two bills, one of which is stamped and the other is not; cannot the Sheriff refuse his application on the bill which is invalid—the unstamped one--and grant it on the other? In the present case, then, this application, so far as it relates to those other charges, was undoubtedly altogether incompetent, and ought to have been dismissed by the Sheriff. But, then, the petitioner produces the newspaper containing the letter, for which he claims damages, and founds upon it. There is the question, indeed, whether it was enough to produce the letter, without specifying the particular sentences on which he founds? but, on the whole, I think that the production of the letter was sufficient. So, then, I am inclined to hold, that if the petition had stood on this point alone, the specification would have been sufficient, though I am not without doubt in some respects. Well, then, would not the Sheriff have been justified in sustaining the petition in so far as it relates to the letter, and dismissing it as to the rest? When we say that the warrant, as granted, is too broad, must we necessarily hold that it must be dismissed altogether? I should propose, then, that we remit to the Lord Ordinary to proceed as on these separate portions; and the caution may also be divided say reduced to one-half.
Lord Fullarton.- I agree with your Lordship in the chair. The case is peculiar in very view, because there is here no claim, properly speaking, for debt. There is a claim, no doubt, for damages; but, then, damages are of two kinds Ist. There are losses by slanderous statements, which may be reduced to a calculation of pounds, shillings, and pence. In such cases, we must have the exact sum set forth. The other kind are those in which nothing more can be done than to make a rude estimate of the injury to one's feelings. The present is a case of the latter sort. Now, in such a case, though I am not prepared to state that a meditatio fuge warrant is entirely incompetent, yet the whole proceeding requires to be very narrowly watched, since the whole debt is left to be fixed by the statement of the party himself. Then as to Professor Bell's test, as to trial for perjury on the falsity of the oath, (Bell's Com. vol. 2, p. 559,) it is plain that the operation of that principle is excluded altogether, and it surely is not unreasonable, in such a case, to say, that the petitioner is bound to state the specific facts, from which the damages are to be estimated. In the present instance, I think the Lord Ordinary right in holding that the respondent must state the particular slander on which he founds. Now, has the vagueness of this petition been in any way remedied by the interlocutor of the Sheriff? This is not a case of two separate bills or debts, like that alluded to by my Lord Mackenzie, but the whole case of the respondent is slumped together. [Reads oath.] It is impossible to make any separation here-it is a cumulo statement of the whole damages, claimed upon all the various slanders. As to the minute restricting the caution to £200, that limits the amount of caution no doubt, but it does not pass from the claim of damages founded on the injurious statements in different lectures; in fact to have done 80, would have required quite a different oath. So, then, I conceive that we cannot make any separation of the two parts of the case.
Lord Jeffrey. There is certainly something novel, as well as something extremely painful in this case; but after due consideration I cannot say that I have any hesitation in concurring with your Lordship in the chair, and subsiantially with the Lord Ordinary. I shall not express any opinion as to the general competency of any thing so novel as this application for a meditatio fugæ warrant, found on a claim of damages for slander. But assuming that the statement might have been so specific as to render it competent, yet we are all agreed that this application for a warrant of so peculiar a nature, this remedium extraordinarium so directly affecting the liberty of the subject, was in part, at least, rash and erroneons, in so far as the grounds of debt were set forth generally, and without specification. Now, as to the proposal of Lord Mackenzie-to remit to the Lord Ordinary, to separate the two parts of the petitionI think that in a case of this description, it is no part of our business, or our duty, to come to the aid of a pursuer, and in order to the incarceration of a debtor, to help a party or an inferior judge out of the awkwardness into which they have fallen by their own error. In a common summons in a civil action, where there is a plain incompetency in some parts, which does not necessarily destroy the whole, this principle, no doubt, may often be given effect to; but SERIES 111.-VOL. V.
even there, when the body and mass of the libel is so incorrectly framed and so ineptly deduced, as to put the defender to disadvantage, the ordinary course is, and it is fully warranted by the judicature act, entirely to dismiss the action and allow the party to bring another summons, containing those portions which are competent. Even in that case, however, all the arrestments and poindings, dependent on the rejected summons, would fall. But in such an application as the present, much more care is necessary; and though the letter be produced, yet I cannot help thinking, tota re perspecta, that that letter is the least important part of the respondent’s case; and that he would, in the way of damages, have got more for the repeated slanders contained in the lectures, than for this polemic challenge, in which one or two such expressions as those read to us are to be found. For the former statement, of Mr. Campbell's travelling through the country, disseminuting slanders on every hand, implies a much greater amount of injury, and shows a far greater animus injuriandi than this one letter, published in a single journal. Indeed, I have some donbts as to the relevancy of that letter at all as a ground for damages. The expression as to Mr. Robertson's dying the contest "dishonorably," seems to me scarcely actionable. Then there is the statement that the suspender will meet any one, “even James Robertson, provided it be not that James Robertson who was dismissed from the Secession Church;" and it is said that this is an indirect averment that the respondent is that same James Robertson. Now, this may, or may not, be found to be such an inuendo. But if he be the man, I am inclined to think that such a proceeding of a public church might, in the heat of controversy, be warrantably enough referred to; and if he be not, where is the calumny against him? But if this be the head and gravamen of the written charge, the real point of the slander must lie in the other charges of repeated calumnies uttered in various parts of the country, in the course of lectures and otherwise. Then, all that the applicant for this warrant does, is to take his oath generally, that on all these charges together, a sum of £5000 is due to him as damages. But here we cannot give the applicant the benefit of a common civil suit, where one portion of the summons is competent, and another not competent. This is one of those cases where the Court is not called on to help out the party or the inferior Judge. The incarceration proceeded on a warrant which vague as it was, was illegal, inasmuch as it proceeded on what was not a legal ground; and, therefore, I think the liberation was properly granted.
Lord Mackenzie I have no doubt that the former incarceration was incompetent; my only doubt was, whether we could not now remedy the defect in this proceeding.
Their Lordships adhered to the Lord Ordinary's interlocutor, and found no expenses due.
Suspender's Authorities.-Bell's Com. 2559; Crowder v. Watson, 18th November, 1831. Pratt v. Flett, 30th June, 18:26; 4 S. and D.
Respondent's Authorities.-Wright v. Gammell, 6th February, 1782; M. 8553. Bellamy, 21st June, 1764; M. 2051. Crowder, at supra.
Lord Ordinary, Jeffrey.--For Suspender, Moncrioff; W. Lorimer S. S. C., Agent.- Por Respondent, Penney, Inglis; Horne and Rose W. S., Agents.-T., Clerk.-[W.G. T.]
Among the Lords who sat on this case, was the distingulshed Lord Jeffrey, the principal founder of the Edinburgh Review, and, as I believe, one of the most acute and literary men in the kingdom. They are, of course, all amongst Scotland's most distinguished jurists. Mr. Robertson, twice defeated, was somewhat, of course, humbled, but not enough to make amends for his furious persecutions and illegal prosecution. Having served a summons on me while in prison, he has a legal right to institute a suit against me on the merits of the case. This is with him the delicate point, and with me the most important; in fact, it is now the only thing of interest to me in the affair. I do not desire to escape from trial, because of the illegality of my seizure and imprisonment. If I have slandered Mr. Robertson, I shrink not from the penalty; and, therefore, I expressed a desire to the brethren, before leaving England, to have a trial on the merits of the question in the Court of Queen's Bench. But Mr. Robertson, now mulct in all the expenses of two trials on the legality of my commitment to prison on his oath of £5000 damages—(for in Scotland he is obliged to pay counsel on both sides and all expenses of trial)-began to get tired of his own fury, and made overtures to our brethren to withdraw his claim of £5000 damages altogether, provided we should pay only the one half the expenses thus far. But, with great propriety, in my judgment, and certainly in full harmony with my expressed wishes, they refused the offer, and are now preparing to stand triał on the merits of the allegata. From the opinions of the Lords, hinted in the preceding documents, no one can doubt their estimate of the question of the merits of the question. They look upon it with an air of ridicule and mirthfulness indicative of their estimate of its legal virtues.
But it is now competent for me to sue for damages for false imprisonment, and the committee of brethren to whom this matter was referred, have already entered suit for false imprisonment.This has now become a matter of very considerable importanee, and we anticipate much good from the investigation. So far all things are working together for good, as the following extracts from brethren Paton's and Macdougald's letters intimate:
Glasgow, 16th Dec. 1847. “I forwarded a newspaper for you on the 3d inst, containing a brief report of the third trial of the fuga warrant case, by which you would perceive that Robertson, as was anticipated, was once more defeated, the decision being given in the highest court and by the principal Judges in the kingdom. He cannot appeal further. This is, therefore, concluded, proving that not only by the principles of justice and humaniny, but according to the laws of our country (which are not always in harmony with the former) you were falsely imprisoned. This subjects him to pay all the Edinburgh expenses, ours as well as his own, and fully exposes him to damages for having thus unjustly put you in jail. The decision was no sooner given, than he appeared to dread the consequences of being thus so firmly caught in his own snare, and proposed, through his agent, that he would abandon the libel case if each party would clear their own expenses. Mr. Clark replied that this could not be acceded to; but if he would agree to pay every penny that had been incurred, he would submit the same to the committee. The answer to this was, that such a proposition could not be acquiesced in. We, therefore, go on to defend in the one case and prosecute in the other—that is, agreeably to the decision come to at the Chester meeting, to meet the case of supposed libel, and accordingly defences are this day lodged in court, explaining why you guarded yourself against a Rev. J. Robertson,-denying that there was any thing approaching to libellous expressions written or spoken by you, also denying that you had any thing to do with the bill circulated in Dundee, with the five or six queries on Robertson's former character, which is referred to in the summons, as defamatory,—further explaining the reasons which led you to visit this country; not to speak of slavery, but to "enforce certain theological opinions yon held.” This is neither happily nor correctly exprecsed, but it is the best that lawyers might be expected to do. I told Mr. Clauk to alter it, but I dont think it will be done, as he stated it was a matter of no importance. I shall send you a copy of these defences afterward, as they could not be wanted yesterday nor to-day, or I would have written them off for you at present. The case wont likely go before a jury sooner than March. I am glad to say the committee are all of one mind as to the course to pursue in these matters, and we all concur in the propriety of raising an action of damages for false imprisonment.
The good arising from your labors here is daily being made known to us. The people are surprised to find how ignorant and prejudiced they had been, and how gratified they were with your addresses, placing the word of God in such a clear and powerlul manner before them. That was totally different from what they were accustomed to. There have been nine individuals united to us since you were here, and we have a greater number of hearers who pay us a visit than formerly. I have sold, during the last month, between 20 and 30 volumes Owen’s Debate, M'Calla’s, and Christian Baptist. The congregation, I should also state, were greatly benefitted by your teaching, much more so than appearances when you were here might have indicated. This is manifested by greater attention and zeal for the truth and behaviour in accordance with it. Your alms-offering, also left with me, came very opportunely. Poverty, distress, and death, have been the visitants of several of the breth.