ROBERTSON v ROBERT BARCLAY ALLARDICE and JOHN BOSWELL, Esquires (Court of Session)

The jury delivered a verdict for the pursuer in both issues, finding the defenders conjunctly and severally liable to the pursuer in L.200 of damages. This verdict was afterwards set aside, and a new trial granted, ‘upon the ground of the damages being awarded conjunctly and severally against both defenders, in respect that their defences were distinct; that the acts done, and the words spoken were different in charge and proof; and that they were not in pari delicto .’

Upon a second trial of these issues, the jury returned a verdict for the pursuer on both issues; and found each of the defenders liable in L.125 of damages.

The pursuer did not attempt to offer any direct evidence of malice. His witnesses spoke as to what passed in Court on the occasion of his conviction, and to the fact that the private law-agent of the defender, Boswell, conducted the prosecution, although the surveyor of taxes for the district, part of whose business it is to prosecute offenders against the game laws, never before was assisted in the conduct of such prosecutions. No evidence was adduced on the part of the defenders.

The pursuer contended —That, as this Court had formerly decided the very question now at issue, by finding the action relevant, it was incompetent, in the form of a bill of exceptions, to attempt to revive the discussion, and, in fact, to call on the Court to review their own final judgment.

The second objection, the pursuer contended, misrepresented the judge's direction to the jury. His Lordship had not laid it down that malice was to be inferred from the mere presumed falsehood of the words spoken; but only that the falsehood was to be presumed in the circumstances of this case; Hamilton v. Hope, sup.; Starkie on Slander , 450; 3 Burn's Justice by Chetwynd , 143; 3 Murray's Rep . 233.