Jack v Fleming

JurisdictionScotland
CourtCourt of Session
Judgment Date15 Oct 1891
Docket NumberNo. 1.
Court of Session
1st Division

Ld. Stormonth Darling, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 1.
Jack
and
Fleming.

Issue—Reparation—Slander—Concurrence in and adoption of the slander of another.—

In an action of damages for slander against A and B, the pursuer alleged that on the occasion of his election to the eldership in a parish church, the defenders had deliberately and maliciously resolved to use means to prevent his ordination; that they had prepared, or caused to be prepared, and published a petition to the minister to be signed by members of the congregation, representing that the pursuer's appointment as an elder would be injurious to the interests of the church; that the defenders, acting in concert and in pursuance of their malicious design, proceeded to canvass certain members of the church for signatures to the petition; that the defenders called upon S to obtain his signature to the petition, and that A, in his presence, made certain false and calumnious and injurious statements regarding the pursuer; that B was then present and heard what A said, and concurred with him in said slanderous statement uttered in pursuance of their said malicious design.

The pursuer proposed the issues:—(1) Whether A made the false and calumnious statement in presence of S and B? and (2) whether B falsely and calumniously concurred in and adopted the said statement falsely and calumniously made by A?

Held that the second issue could not be allowed and that there should be one issue, viz., Whether the defenders, or either of them, and which of them, in presence and hearing of S, falsely and calumniously stated, &c.?

Held by Lord Stormonth Darling (Ordinary), and acquiesced in, that the pursuer was not bound to put in issue malice and want of probable cause, as the defenders were not privileged in canvassing for signatures to the petition.

Held by Lord Stormonth Darling, and acquiesced in, that in issues relating to statements by the defenders to the kirk-session want of probable cause must be put in the issue as well as malice.

Thomas Jack, Houston, Renfrewshire, raised an action of damages against William Fleming, John Gourlay Harvey, and others for an alleged slander.

The pursuer averred that he had for years been a member of the Houston Parish Church, of which the defenders were also members; that the defenders had conceived malice and ill-will towards him in connection with certain proceedings taken in 1890 by the congregation regarding the...

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