GEORGE SMITH v CHARLES GRANT (Court of Session)

Defences were put in by Grant, and the Sheriff allowed a proof, by which it appeared that the parties had a dispute whether a peat was eleven or twelve inches long; that Smith had told Grant to take care what he was about, and said something about his being put upon oath; that on this Grant flew in a passion, and called Smith a ‘partial judge,’ or a ‘partial fellow;’ but there was no proof of propagation of the statement, or of malice, other than what was imported by the expression.

The Sheriff-substitute pronounced an interlocutor, 26th May 1835, by which he finds that the pursuer has failed to prove his allegations as libelled, assoilzies the defender, and finds no expenses due to either party.

This was recalled by an interlocutor of the Sheriff-depute, 2d July 1835, which ‘finds it proved that the defender represented the pursuer as a ‘partial fellow,’ and persisted in that representation, and that that imputation was aggravated by being applied to a person who was in the practice of acting as an arbiter or referee; therefore finds the defender liable in L.5 sterling of damages to the pursuer,’ and in expenses, amounting to upwards of L.17.

The advocator pleaded —The alleged statement was privileged, or, at least, if proved, must be held to have been made under circumstances entitling the advocator to protection. The respondent was therefore bound to have relevantly alleged and proved malice; Gibsons, 20th Jan. 1823, 3. Mur. 271; Craig, 13th March 1823, 3. Mur. 351; M'Lean, 19th May 1823, 3. Mur. 353; Hamilton, 10th March 1827, 5. Sh. and D. 559.

There is no proof that the alleged statement was made maliciously, or made at all, in terms of the libel.