M'DOUGALL v CAMPBELL (Court of Session)

The defender pleaded —That, as a member of an ecclesiastical court, he was not responsible in a civil action of damages for what he had said at a meeting of the kirk-session, of which he was a member, regularly convened; but that the pursuer, if he alleged malice, must proceed against him by complaint to his ecclesiastical superiors in the church court.

The cause was remitted back from the Jury Court before preparation for trial, in order that this preliminary objection to the relevancy of the summons might be decided by the Court of Session; and the Court, before answer, appointed the pursuer to give in a condescendence of the facts which he averred and offered to prove in support of his libel.

The pursuer condescended on various occasions previous to the meeting of the kirk-session, on which the defender had threatened to be his ruin; and averred that, at the meeting, the defender, using his supposed privilege as a member of the church court as a cloak under which to vent his long harboured malice, had uttered the slanderous words set forth in the summons; and also condescended on another occasion afterwards in which the defender had repeated the slander formerly uttered by him at the meeting of the session.

The Court , on advising the cases for the parties, with the condescendence, was unanimously of opinion that the libel, as laid, was relevant; and, therefore, repelled the objection, and remitted the cause to the Jury Court.

Lord Ordinary, Cringletie. Act. Jeffrey, J. Wilson. Alt. Whigham. W. Mercer, W. S. and W. Syme, W. S. Agents. B. Clerk.