HOUSE OF LORDS.

(Speeches taken from Mr Gurney's Short-Hand Notes.)
24th July 1833.

No. 1.-WILLIAM EWING, Appellant, v. MRS MACKENZIE or CULLEN and CURATOR ad Litem, Respondent.

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Husband and Wife-Defamation-I. A woman living apart from her husband, held entitled to pursue an action of damages in her name.-II. Certain defamatory expressions having been used in the course of a cause against a third party-Held (reversing the judgment of the Court below), that the expressions were relevant to the cause, and therefore, that the party using them was not liable in damages to the third party to whom the injurious expressions referred.

The respondent kept a boarding-house in Edinburgh, and had a person of the name of Wight as one of her boarders. In an action between the appellant and Wight, Ewing introduced various defamatory statements into his pleadings against Mrs Cullen, which she conceived were injurious to her character and reputation. She accordingly raised against Ewing an action of damages. The substance of the issue was, that the appellant had been guilty of written and verbal slander, to the injury and damage of the respondent, in respect that he had alleged that she lived on terms of improper imtimacy with Wight, and that her house was disreputable. The documents in which the defamation and slander were contained, were put into process as evidence; and one witness swore to repeated verbal statements of similar import made by the appellant. The respondent proposed to examine the appellant's former agent to prove malice, inasmuch as he had in vain dissuaded him from putting the objectionable matter into his papers.-Objected, Counsel and agent are confidential persons, and cannot be examined against their employer. The Court sustained the objection.-Cuninghame, for the appellant, then stated, that he had just received a certificate of the indisposition of the landlord of the respondent's former house in Queen Street, whom he deemed to be a material witness, as he could speak about the disposal of certain furniture, touching the character of the respondent; and though he did not wish to put off the trial, yet that he thought the Court should immediately grant a commission for taking his evidence. Answered, The furniture has nothing to do with this case, and therefore the witness is immaterial. sides, the examination of a witness by commission, in the middle of a trial, is incompetent, and is a thing that was never before attempted. The Court was of opinion that the witness could not be examined by commission. The appellant led no evidence, but eonVOL. VI.

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tended-I. That there was probable cause for the matter stated in the written papers: That it was not malicious, and was privileged, in respect that it was pertinent to the cause in which it had been introduced.

II. That there being only one witness who could swear to the verbal defamation alleged, it was not sufficient legal evidence to substantiate the fact.

The Lord President summed up the evidence, and charged the

jury to find for the pursuer. His Lordship observed, that the

statements made in the written pleadings, in the case between Ewing and Wight, were, so far as the present pursuer was concerned, any thing but pertinent. Ewing alleged that Wight had stolen coals from the copartnery fund, and given them to Mrs Cullen. It was the reverse of pertinent to charge the pursuer with immoralities, &c., in a question regarding the price of said coals, and to say that she kept a house of bad fame. It had been said that there was probable cause for the statements. But probable cause, without a shadow of evidence, is unworthy of notice. It is not intelligible. The evidence of the single witness to the verbal slander is corroborated by the written slander to the same effect. These, taken together, amount to complete proof of the defamation for which damages are sought. Though the pursuer was only the keeper of a boarding-house, yet she was dependent for her subsistence on her character and reputation, and was entitled to protection from calumny. She was not to be slandered and ruined with impunity, because she was in a humble sphere of life. It was the province of the jury to give what amount of damages they thought due, in the circumstances of the case.

The respondent had a verdict for £200 damages.

The appellant presented a bill of exceptions against the direction in point of law, given to the jury, and contended, that it was erroneous, on the same ground as had been pleaded to the jury. Without hearing counsel for the respondent, the Court disallowed the exception, and applied the verdict.-Ewing then appealed, pleading-I. The action was originally incompetent, and ought to have been dismissed, in respect that it was brought by a married woman, in her own name, without even the concurrence of her husband, who alone had right to the sum sought to be recovered.-II. The damages claimed under the first three issues being claimed in respect of language used in judicial pleadings, that language was protected by having been so used, unless evidence had been brought that the appellant had used it maliciously; and accordingly, malice is expressly put in issue; and the direction of the presiding Judge to the jury, that the language so complained of, though used in judicial pleadings, was not in any way privileged, but was irrelevant to the matter then in dispute, was a direction contrary to law-III. The direction given in regard to the issues taken on alleged verbal slander, that the jury was entitled to consider the evidence led in support of them, was erroneous, in respect that there was only one and the same witness to all of

No. I.