Scottish Court of Session Decisions

Subject_1 REPARATION.
Subject_2 SECT. III.

False Accusation. - Verbal and real Injury. - Scandal and Defamation. - Does veritas conviti excuse? - Whether a verbal Injury may be retorted by a real one ex intervallo?

Porteous
v.
Isat and Others

Date: 12 December 1781
Case No. No 23.

Verbal injury; how committed; how alleviated.

Click here to view a pdf copy of this documet : PDF Copy

Isat and Others, residing in the parish of Gorbals, presented to the Presbytery of Glasgow a libel against Mr Anderson, their minister, charging him with adultery, and other crimes. The Presbytery having allowed a proof, the Synod affirmed their judgment; and Mr Anderson appealed to the General Assembly.

Mr Porteous, one of the ministers of Glasgow, concurred with Mr Anderson in this appeal, and supported it at the bar of the General Assembly. He thers described Mr Isat as a man of mean origin, and of a violent and factious spirit; attributed his prosecution of Mr Anderson to the most unworthy motives; and accused him, and his adherents, of having, in the course of the dispute, endeavoured, by suborning witnesses, and other unlawful means, to bring Mr Anderson to infamy and ruin.

The speech pronounced by Mr Porteous, on this occasion, was inserted, with his approbation and assistance, in one of the newspapers at Edinburgh, and in another at Glasgow. Mr Isat, and his associates, retorted in another Glasgow newspaper, accusing Mr Porteous, in very gross terms, of many falsehoods and calumnies in his management of the appeal; and threatening, “that he might soon expect a publication, in which his own tete-a-tetes would be introduced.”

This performance Mr Porteous made the foundation of a process of damages in the Court of Session, concluding for L. 1000 Sterling.

Observed on the Bench, Mr Porteous is not answerable for any expressions used by him in his character of appellant, relative to the question before the Assembly, and suggested by the evidence under their consideration. But the encouragement and assistance given to the repetition of the same expressions in the newspapers, or other similar publications, being nowise connected with that character, and having an obvious tendency to vilify and injure his opponents, was undoubtedly actionable. Had the other party, therefore, confined themselves within the limits of a moderate retaliation, the mutual injuries would have compensated each other. But an insinuation of a charge of incontinency against Mr Porteous, a clergyman, and married person, cannot be justified on this principle.

The interlocutor was in these words:

“Find, that the pursuer, Mr Porteous, acted improperly in giving his notes, or otherwise assisting the editors of the Edinburgh Caledonian Mercury, in publishing his speech before the General Assembly, in the cause of Mr Anderson, in said newspapers, and also afterwards in the Glasgow Mercury: Find, That Mr Isat, and the other defenders, acted more improperly, by their virulent and acrimonious paper, published in the Glasgow Journal, highly injurious to the character of the pursuer; and therefore find the defenders, conjunctly and severally, liable in damages; but as the conduct of the pursuer, above mentioned, was such as to exculpate and alleviate the conduct of the defenders in part, they modify the said damage to L. 5 Sterling; and find them, conjunctly and severally, liable in expense of process,” &c.

A reclaiming petition was offered for the defenders; in which they argued, That the question before the Assembly, regarding merely the relevancy of the libel, Mr Porteous acted injuriously, by introducing the character and conduct of the libellers, which could have no influence in the decision. But it appeared to be the practice of the ecclssiastical judicatories, in accusations against members of the Church, to inquire into “the origin and movers thereof;” and that Mr Porteous was therefore justified in insisting on these topics, so far as they had any foundation in evidence before the Assembly.

“The Lords therefore adhered.”

Lord Reporter, Gardenston. Act. Crosbie, Craig, Morthland, and Arch. Campbell. Alt. Ilay Campbell, Cullen. Clerk, Campbell. Fol. Dic. v. 2. p. 230. Fac. Col No. 13. p. 25.