in the pound, and before he even paid that has become bankrupt a second time. Consignation or actual tender of the money is the only test that can be considered from such parties as evidence of the reality of an offer. Separatim-As the defender has become bankrupt a second time, and his estate was in the hands of a trustee, the pursuer was entitled to constitute his debt; and it was a matter of some difficulty for the Sheriff to determine whether, in the circumstance, and particularly adverting to the failure to pay the composition debiti tempori, or to consign even the composition in this process, the pursuer was not entitled to decree even for the original debt.

JAMES WALKER v. BERTRAM & Co. Sale-Weight-Measure-Breaking bulk.-On a sale of grain, the “out turn" was guaranteed within one per cent. measure, weight combined. On samples being weighed, a deficiency was found, but the grain was retained without objection for upwards of a month; there was also a deficiency by measure. In an action for the deficiency, held that the defenders were only liable for the defi

ciency by measure, and decree given accordingly.

This was an action for payment of £38 4s 8d, the price of 334 quarters of oats, the alleged amount of deficiency in quantity of 892, quarters of oats bought by the pursuer from the defenders in August, 1862, and which were alleged to have been guaranteed by the defenders to turn out on an average 40 lbs. per bushel, but which it was alleged had, on being weighed, turned out on an average only 38 lbs. per bushel. The sale note was in these terms:

JAMES WALKER, Esq., Cambridge Street, Glasgow.

GLASGOW, 6th August, 1862.

DEAR SIR.-We sold you to-day through our mutual friend Mr John Walker, about 1000 quarters 40 lbs. Swedish unkiln-dried oats at twentythree shillings per imperial quarter, including freight and insurance to Grangemouth.

Terms-payment by 3 M/ draft from date of and against Blading, on your goodself.

but as oats are a commodity peculiarly liable to vary and diminish in weight, it was conditioned that the defenders should guarantee the out turn or produce of the cargo at Grangemouth to be within one per cent of the quantity invoiced on the measure and weight combined of the cargo as there ascertained, this being an allowance for the protection of the shippers, and such being the meaning of the contract, both by the terms thereof and practice of trade; that the said oats were shipped on or about 20th August last by the "Johannes" from Gothborg in Sweden to Grangemouth, and the bills of lading were delivered by the defenders to the pursuer on receiving his bill for the price; that the pursuer accordingly took delivery by his agents on the arrival of the vessel at Grangemouth on or about the 6th September last; that the pursuer did not weigh the oats at Grangemouth as stipulated; that he did not reject them on any ground, or offer to return them, but took unconditional delivery, and made no objection or complaint till the 23d September last, when he stated he had weighed the oats at Port-Dundas, to which he had conveyed them by lighters, and discovered a deficiency; that to oblige the pursuer the defenders put themselves in communication with the shippers of the oats, and

desired an explanation, but they repudiated all responsibility on the ground that the cargo was not weighed at Grangemouth on the ship's arrival; that the defenders do not admit there was a deficiency, and if any such existed, they deny that they are responsible for it; but although not liable or bound to do so, yet, as it was stated 6 quarters or thereby were deficient on measurement, they were always willing, and offered, in order to save questions, to pay to the pursuer the value thereof, being £7 43, which, under reservation of their pleas, they now consign.

The record was then closed, and a proof allowed. The proof having been led and concluded, and parties' procurators heard thereon, the Sheriff-Substitute pronounced the following Interlocutor:

Having heard parties' procurators and resumed consideration of the proof, productions, and whole process: Finds that under the contract No. 5/2 the defenders sold to the pursuer "about 1000 quarters 40 lbs. Swedish unkiln-dried oats at 238 per imperial quarter, including freight and insurance to Grangemouth; out turn guaranteed within one per cent. measure and weight combined:" Finds that the meaning of this is, that the oats shall measure in bulk the invoiced number of quarters, and that each bushel shall weigh or contain 40 lbs. of oats, less one quarter per cent. off the guaranteed number of quarters, and one pound weight off every hundred

Please confirm the above to

Yours respectfully, (Signed) BERTRAM & Co. The defence, which was contained in a minute, was as follows:-A denial of the statements in the summons, and particularly that the defenders are owing the sum sued for. Explained that the defenders on 6th August last sold to the pursuer about 1000 quarters 40 lbs. Swedish unkiln-dried oats at twenty-three shillings per imperial quarter, including freight and insurance to Grangemouth, which was the port or place of delivery, the terms being payment by draft on the pursuer at three months from date of and against bill of lading;

that the invoiced number of quarters was 892 2-9ths, and the pursuer paid for that quantity before the arrival of the ship containing the cargo at Grangemouth: Finds it proved that, as instructed by the delivery note No. 6/6, only 877 quarters were delivered from the ship at Grangemouth, making a deficiency in the invoice number of 14 quarters, which at 23s per quarter is equal to £16 15s 9d or thereby: Finds it also proved that a bushel taken at random from each 35 quarters was weighed at Grangemouth, and that the average weight thus ascertained per bushel was 38 lbs. 3-20ths instead of 40 lbs., which gives a gross deficiency of 554 quarters: Finds that the weighing and taking delivery at Grangemouth occupied from the 4th to the 9th September, 1862: Finds that the pursuer then removed the oats by lighters to Port-Dundas; and in respect the weighing which had taken place by sample at Grangemouth, could only give the approximate but not the precise weight of the oats, he caused the whole to be weighed in bushels at Port-Dundas: Finds that the exact deficiency

arising from the underweight of the bushels was then ascertained to be 423 quarters, which, after deduction of one pound weight per cent. on the invoice quantity, leaves a deficiency of 33 quarters: Finds that the summons concludes for repayment of the sum of £38 4s 9d, being the price overpaid by the pursuer for said 33 quarters which he did not receive: Finds that the defence is two-fold-first, that as there was no sufficient weighing at Grangemouth, it cannot be held to be proved that the deficiency existed there, and that circumstances may have occurred after the oats were taken possess ion of by the pursuer to affect their weight at Port-Dundas; and second, that as the pursuer took delivery without intimating any objection at Grangemouth, and removed the oats to Port-Dundas, he is barred from claiming repetition of any part of the price which he must be held as admitting to have been justly due: but Finds, as regards the first of these defences, that the pursuer has proved (1) that the mode in which he weighed at Grangemouth to ascertain the weight per bushel is a mode frequently resorted to (2) and admitted as sufficient among grain merchants, and he has also proved that nothing occurred in the transit from Grangemouth to Port-Dundas, or before the weighing there, which could by any possibility alter the weight per bushel of the oats as delivered from the ship: Finds, as regards the second defence, that the mere fact of taking delivery at Grangemouth could not bar the pursuer from objecting that he had not received the whole invoiced quantity, unless he was chargeable with undue delay in ascertaining that fact: Finds that the weigh ing at Port Dundas took place immediately on the arrival of the oats there, and on the 12th September, 1862, being within three days of taking delivery, the pursuer intimated to the defender, by the letter of said date, No. 5/10, the ascertained deficiency: Finds that though the quality of oats depends very much upon their weight per bushel, the present case does not involve merely the question whether the oats delivered to the pursuer were of the quality contracted for, but also, whether the pursuer got the guaranteed quantity: Finds that the rule of law is, that where the defect is to a certain extent latent, requiring the performance of an operation to discover it, a purchaser is entitled to a reasonable time to make the dis covery; and the rule also is, that where there is a failure on the part of a seller to deliver all that has been bought and paid for, a purchaser, whilst he is entitled to retain all he gets, is no less entitled to demand that he shall not be left out of pocket in respect of the portion undelivered, if he has already paid for it: Therefore, and under reference to the annexed Note, repels the defences, and decerns against the defenders in terms of the conclusions of the summons, and authorises the Clerk of Court to pay over to the pursuer in implement pro tanto of this decree the consigned sum of £7 4s: Finds the defenders also liable in expenses: Allows an account thereof to be given in, and remits the same to the auditor to tax and report.

NOTE. In their minute of defence the defenders consent to refund to the pursuer the value of the deficient number of measured quarters, which they erroneously state to be £7 48, instead of £16 15s 9d. But if this concession be made as

The pur

regards the deficiency in the number of quarters, as ascertained by measurement, it is difficult to see why it should not also be made as regards the deficiency in the guaranteed weight of the oats, as ascertained by weighing each bushel. suer paid for so many pounds weight, as well as for so many quarters. The deficiency in the quarters is a deficiency in the gross bulk; the deficiency in the weight of each bushel is a deficiency in the gross weight. Full measure might have been given, and not full weight, or vice versa; but neither full measure nor full weight was given. The objection is not that the oats were bad or unsound-in which case the pursuer would not have been safe to take delivery of them, if he meant to reclaim the price. The objection is, that the defenders got him to pay for a certain quantity of oats on the assurance that it would be sent, and that in point of fact they did not send the stipulated quantity, though they have pocketed the price. The only ground taken by the defenders in their letter to the pursuer of 27th October, 1862, No. 5/9, for refusing to accede to the pursuer's demand for repetition is thus stated," Unfortunately you did not get the oats weighed at Grangemouth; had you done so, your claim would have been paid long ago, and we would have been enabled to recover from Mr G. S. Schilter, the shipper, the short weight, who now disputes our claim, saying that the cargo was not

weighed in Grangemouth, but at Port-Dundas." Now, though Grangemouth was the port of delivery, there was no positive obligation on the pursuer to weigh the oats there, although, in point of fact, he did weigh them there in a manner to lead him to believe that there was even more underweight than there actually was. It is only where the fault is known and manifest that the challenge must be im mediate; where the fault is latent, a reasonable time for investigation is allowed (Bell's Prin., sec. 99, and authorities there quoted). There was no unreasonable delay on the pur suer's part in first taking an average weight at Grangemouth, and within three days thereafter ascertaining the precise weight of the whole. Delivery or non-delivery has nothing to do with the question, which simply is, did the pursuer timeously intimate that he had not got all the goods sold to him, and for which he had paid on the condition that he should get them? The remarks of the Lord Chancellor in the case of Robertson, 6th March, 1862, W. & S. Reports, Vol. vi., p. 1, appear precisely in point. It was there held by the House of Lords a good defence to an action for payment of a balance of an account for iron sold and delivered that it was deficient in weight, and this although the iron had been received and the deficiency in weight not discovered or objected to for some weeks. The Lord Chancellor said,"It is no defence to the action that there was a shortcoming in the amount. If he has got ten and is charged for twelve, whether it be bottles of wine or tons of iron, if he is called on to pay for twelve, and has actually paid for ten, is it not a complete defence to the whole action? I cannot understand the Lord Ordinary saying, that by taking the goods, and by not rejecting them, you waive all objections to the weight, and you treat them as one and indivisible, and as not capable of apportionment. You do not waive the objection to the short-coming of the quantity though that is apportioned; that objection may be taken not at the time when you used the goods, but at the time when you are called upon to pay for them. In the case put, if I buy a dozen of wine and I only get ten; if I drink the ten bottles, and am called upon to pay for twelve, it is absurd to say you must pay for twelve-you ought to have taken the objection when the bottles came. That applies if I had bought wine, expecting it of one vintage, and it turned out to be of another, and expecting it was good, though it turned out to be bad, even if it were as sour as vinegar, and I had taken the trouble to swallow it, I am bound to pay for it, and it is too late to take the objection even keeping it would be sufficient without drinking it." The distinction here pointed out is applicable, a fortiori, to the present case, where there was hardly any delay in inti mating that all the goods purchased had not come forward, and that the guarantee had consequently not been fulfilled. It would be palpable injustice to hold that in such a state of matters the pursuer had no redress, but must leave the defen ders in undisturbed possession of money which they had got for goods they failed to supply.

This Interlocutor was appealed, and thereafter the Sheriff pronounced the following judgment:

Having heard parties' procurators at great length under the defender's appeal upon the Interlocutor appealed from and whole cause, and made avizandum and considered the proof adduced, productions, and whole process, Finds that the present is an action for payment of the sum of £38 48 9d, as the price of 331 quarters of oats, being the amount of alleged deficiency on a quantity of 892 2-9ths quarters of oats bought by the pursuer from the defenders on or about 6th August, 1862, and which oats were guaranteed by the defenders to turn out on an average 40 lbs. per bushel; but which on being weighed turned out on an average only 38 lbs. a bushel: Finds that it is pleaded in defence that the pursuer accepted of the oats at the stipulated port of delivery under the con tract, viz., Grangemouth, after he had come to the knowledge that there was a deficiency in the weight of the grain; and that having done so, and not having got them fully weighed at the place of delivery, it is now too late for the pursuer to demand repetition of the price paid for the oats to the extent of the alleged deficiency: Finds that the oats were imported from Gottenburgh, in Sweden, and that the pursuer had bought the oats and granted bill for the price of them before they arrived in this country, on the defenders' guarantee that the quantity invoiced, which was 892 quarters, should

measure in bulk the invoiced number of quarters, and that each bushel should weigh or contain 40 lbs. of oats, less one quarter per cent. off the guaranteed number of quarters and 1 lb. weight off every 100 lbs. weight: Finds that bills had been granted by the pursuer for the price in exchange for the bills of lading before the oats arrived at Grangemouth: Finds that the vessel with the oats arrived at Grangemouth on 6th September, 1862, and that the delivery of them began immediately, and went on till the 9th of the same month: Finds that, upon delivery, the oats were found to amount only to 877 quarters instead of 892, the invoiced measure: Finds that no complete weighing of the oats was taken at Grangemouth; but an approximation to an average weight was taken by weighing one out of every 35 bushels, and that rough approximation made out that the weight of the oats was 383/2 lbs. instead of 40 lbs. a bushel, the guaranteed weight: Finds that this rough mode of ascertaining the weight of oats is proved to be sometimes followed at Grangemouth, and in the present instance it was followed with the knowledge and by the directions of the pursuer: Finds that, in this way, there was a deficiency in the measurement of the oats at Grangemouth of 14 quarters and ths: Finds that the total deficiency in the weight of the oats, as roughly estimated by the weighing which there took place at Grangemouth, was 42 quarters, but that was ascertained, as above stated, by weighing only one out of every 35 bushels, instead of weighing the whole oats: Finds that, upon discovering this deficiency, the pursuer did not repudiate the transaction, nor make a complete measurement of the oats by weighing the whole while still at the port of delivery, nor call upon the defenders to satisfy themselves as to the deficiency, but simply wrote to them on the 12th of September that there was a deficiency, and he afterwards took the oats on to Port-Dundas at Glasgow, a distance of about thirty miles from the port of delivery, where he had them thoroughly and accurately weighed, and he hoped the defenders would make up what was awanting: Finds that the pursuer accordingly got the oats put on board two lighters, and conveyed to Port-Dundas, where the whole were weighed, which weighing was completed on the 13th of September, when the actual deficiency was found to be 33 quarters in weight: Finds that although this thorough weighing was completed on the 13th September, the pursuer did not intimate it to the defenders till the 23d of that month, although from the 9th he had been certiorated by the partial weighing at Grangemouth that there was a deficiency: Finds that, in this state of matters, a dispute got up between the parties, and the present action has been brought by the pursuer, the purchaser of the grain, concluding against the defenders for £38 4s 9d as the price of the 331 quarters of oats of deficiency in the quantity of oats sold, as ascertained at Port-Dundas: Finds, in defence, it is pleaded that Grangemouth was, under the contract, the port of delivery, not Port-Dundas, whither the oats were taken by the pursuer's orders, and at his risk; that the defenders' liability, therefore, must be measured by what took place and appeared at Grangemouth; that the deficiency by measure, as there ascertained, was only 14 quarters, and that the additional deficiency in weight had been departed from by the pursuer, by delivery of the oats having been taken at Grangemouth, and the defenders therefore were liable only for the deficiency in measure, as ascertained at Grangemouth, the value of which under deduction of the 100th part allowed by the contract on the deficiency being £7 4s, was consigned with the defences: Finds that it is proved in evidence, and is matter of public notoriety, that the quantity of grain is

measured and ascertained chiefly if not entirely by its weight, and that therefore when grain is bought by the bushel or quarter, that stipulation is a quality of the purchase, and subject to the rules of law as such: Finds, in point of law, that when an article is sold under a certain stipulation as to quantity and quality, the purchaser is bound, if on delivery the article turns out to be either deficient in quantity or inferior in quality, to intimate the shortcoming or inferiority tempestive and without undue delay to the seller, and require him either to rescind the contract and take back the article and repeat the price if paid, or to request immediate instructions as to how it is to be disposed of, or where it is to be sent in the meantime: Finds that the quantity and quality of the article delivered is to be taken and ascertained at the

stipulated place of delivery, and not at what other may have become after the article may have been transported to a

different place in vessels selected by the purchaser, and for his purposes, and without the knowledge or consent of the seller: Finds that a reasonable time is to be allowed to the purchaser to ascertain the existence of any latent defect at the place of delivery; but that it must be a reasonable time only, and if the deficiency is patent, or immediately ascertainable, it must be intimated immediately to the seller, in order that he may take measures to secure his recourse against the party from whom he may have got the goods, or give timeous instructions as to the disposal of them: Finds that the deficiency in the quality of the oats here was patent from the very beginning, seeing it was mentioned by the pursuer's agents to him, the pursuer, immediately on the arrival of the oats at Grangemouth, by letters on the 6th and 9th September: Finds, that being so known and intimated, the pursuer was not at liberty to take delivery of the oats at Grangemouth, the port of delivery, without fully weighing them, and then convey them at his own hand to a more distant place without the defenders' consent, and weigh them there, and not intimate the ascertained deficiency to the defenders till the 23d Sept., ten days after the weighing had been completed at PortDundas, and fourteen days after the partial weighing had taken place at the port of delivery: Finds that, by taking delivery of the oats under such circumstances, and such laches in intimating the defect of the quality of the oats, the pursuer has lost his claim for any indemnification on account of the deficiency in value or weight of the oats sold and delivered, except for the deficiency in the quantity, which still remains good and untouched: Finds that this deficiency, under deduction of the hundredth part stipulated for under the contract as admitted by the defenders, amounts in value to £7 48, which sum has been consigned; therefore alters the Interlocutor appealed against, sustains the defences, and assoilzies the defenders from the conclusions of the action, except to the extent of the sum admitted and consigned by the defenders: Finds the defenders entitled to expenses, subject to some modification— in respect the dispute began from a proved deficiency in weight of the oats which they sold, though in bona fide; appoints an account to be given in, and taxed by the auditor, and decerns.

Act. MURDOCH AND RODGER. Alt. ALEXANDER AND TAYLOR.

29TH OCTOBER, 1864.

SHERIFF COURT, RENFREWSHIRE-PAISLEY. (SHERIFFS PATRICK FRASER AND Campbell.)

The Reverend WILLIAM ELSTON, Minister of the Tabernacle Church, Paisley, v. JAMES CREELMAN.

-

Slander Damages Relevancy Privilege. A minister brought an action of damages against a member of his church for slander.-Held (1), that the summons was irrelevant, in so far as the word malicious was omitted, and the record opened up to have the word added; (2), communications made by one member of a church to another, as to the charac ter and conduct of a candidate for the pastoral charge of a congregation, are privileged.

THE pursuer raised this action of damages (and another against John Black on nearly similar grounds) a member of the Tabernacle Church, Paisley, averring (in his condescendence) that he had falsely, maliciously, calumniously, and injuriously, on 22d January last, or about that time, slandered the pursuer in the presence and hearing of certain parties named in certain houses in Canal Street of Paisley, and farther, that he had so slandered the pursuer on various occasions within the town of Paisley and places adjacent during the month of January last (1863) to sundry persons, and in particular to certain parties named. These averments were

denied as stated, and in explanation it was set forth that Black, who was president of the congregation, had gone to Motherwell, where the pursuer had been formerly stationed, to make inquiries, and on his return had reported to the defender what he had learned, and he had also reported the result of his inquiries to a congregational meeting. Art. 11.-The persons named in the condescendence as those to whom the defender is alleged to have made the injurious statements are members or adherents of the church for the pastoral care of which the pursuer was then a candidate, and he made no statement to them or either of them except by way of conversing with them about the reports that had been made to the congregational meeting by Mr John Black, or what he had reported to the defender as the result of his inquiries. It was admitted that three of the parties named were members of the pursuer's congregation.

The pursuer pleaded—(1) The defender having slandered the pursuer, he is liable in reparation and damage; (2) In the circumstances condescended on, the pursuer is entitled to decree in terms of the libel; (3) The defender's statement of facts is an aggravation of the libel, and these facts and pleas in law being irrelevant and unfounded, as well as untenable in law, the same ought to be repelled.

The defender pleaded-(1) Preliminary-The action is irrelevant, in so far as it charges the defender with having slandered the pursuer without specifying the dates and persons when and to whom it is alleged the statement was made; (2) On the merits--When the pursuer became a candidate for the pastoral charge of the Tabernacle congregation, he submitted his previous conduct to the inquiry of the members, and they were entitled to make these inquiries and inform each other of the result without subjecting themselves to a claim of damages at the pursuer's instance; (3) The statements made by the defender having been made in his capacity of a member of a religious body recognised and tolerated by law, he is not amenable to the Civil Courts therefor; (4) The defender was bound to inquire into the pursuer's previous conduct before choosing or rejecting him as his spiritual adviser, and was entitled to make known to the members of the church what he learned; (5) Under the whole circumstances, and particularly with reference to the pursuer's conduct before becoming a candidate for the pastoral charge of the congregation of which the defender was a member, and the relative position of a minister of the gospel to his congregation, the pursuer has no claim for damages, and the defender is entitled to decree of absolvitor, with expenses.

The record was then closed, and the Sheriff-Substitute pronounced the following Interlocutor:

Having considered the closed record and whole process, and heard parties' procurators thereon, Finds that the con descendence is irrelevant in so far as it charges the defender with having "slandered the pursuer on various occasions within the town of Paisley, and places adjacent, to sundry persons during the mouth of January, or about that time;" quoad ultra and before answer allows the pursuer a proof of his averments, and the defender a joint probation; and as to the counter statements in the defences: Finds the same irrelevant, except as to that part of the allegations in Art. 8 of the defender's statement of facts, which avers that the pursuer, "while stationed at Motherwell and Wishaw, had carnal connection with an unmarried woman, and admitted this to the Reverend Mr Todd," and also as to the allegation

in Art. 11 of the defender's said statement, and as to the said allegations in Art. 8 and Art. 11 of the defender's said statement, allows the defender a proof, and the pursuer a joint probation; appoints the proof to proceed as one proof, the pursuer leading therein; grants diligence at the instance of both parties against witnesses and havers, and appoints the proof to proceed on the 7th October next at half-past 11 A.M. NOTE-The grounds of this Interlocutor will be found fully stated in a Note to the Interlocutor of this date in a similar case at the instance of the pursuer against John

Black.

It may be added that while the defender's averments in the 11th Article of his statement of facts might have been proved under the conjunct proof allowed him, it has been thought better, to prevent misconception, to allow him a substantive proof of that article, along with a proof of his averments in

the 8th Article of his said statement.

The Note in Black's case to which reference is made is as follows:

NOTE.-The Sheriff Substitute is anxious that parties should clearly understand the grounds on which the proof allowed hinc inde has been restricted by the foregoing Interlocutorunless he specifies not only the slander itself which he com1st. It is quite fixed that a pursuer cannot prove a slander,

plains of, but also the persons to whom, the places where, and the times when the slander was committed.

2d. As to the defender's statement of facts, it is only

necessary to observe that a proof of them has been refused, except where they go to a proper plea of veritas convicii, be cause the defender is not charged with having slandered the pursuer by saying that "he had heard injurious reports as to the pursuer's conduct with regard to women," or such like; but that he, the defender, had stated to certain specified persons that the pursuer was an immoral man, guilty of adultery and fornication, and so forth. Now, if it is only proved that the defender told the persons specified that he had heard these things about the pursuer, then the pursuer will fail to prove his case; and the defender has a joint-probation allowed him in order to show that he stated nothing more than this. But if the pursuer prove that the defender did say the things condence that the defender had heard such things unless he is descended on, it would be irrelevant on defence to bring evialso prepared to prove their truth. It may be true that he was entitled to make every inquiry into the pursuer's antecedents, and to disseminate the results throughout the indiaccusations of fornication and adultery against the pursuer by vidual members of the congregation; but he cannot justify saying that he heard that others had made similar charges. Nor can all the scandal and tittle tattle which may have Court with a view to lessening the damages to which the reached the defender be allowed to be proved by him in pursuer may he entitled in the event of his proving the slander, and the defender failing to prove the veritas convicii.

This Interlocutor was appealed, and the Sheriff thereafter pronounced the following Interlocutor:—

The Sheriff having considered the whole process, recals, in hoc statu, the Interlocutor appealed against, opens up the record, allows the pursuer, if so advised, to amend his summons by adding thereto the word "maliciously," appoints the defender to amend his statement of facts in the defences by specifying the times at which the various occurrences therein set forth took place, and also to specify by whom the pursuer was accused of unbecoming conduct with a woman when stationed as a preacher at Settles, and what that woman's name was, and what is the name of the unmarried woman referred to in the 8th Article; said amendment to be made within ten days from this date, and appoints the Clerk of Court, on the same being made again, to transmit the process to the Sheriff, reserving, in the meantime, all questions of expenses.

NOTE.-The Sheriff refers to his Note in the case at the instance of the same pursuer against John Black, issued of this date.

The Note referred to in Black's case is as follows:-The record in this case is in a most unsatisfactory condition. On the one side, the pursuer not having the word "maliciously" on his summons, runs the risk of being turned out of Court, in

accordance with the decision in Dallas v. Munn, 14th June, 1853, 15 D., p. 746, if the case should turn out in proof to be one of privilege. From the pursuer's statement, it does not appear to be a case of privilege, and, therefore, it cannot be dismissed as irrelevant though the summons want the word "maliciously." But the Sheriff sees from the defences that a case of privilege may arise, and in such a case the action must be dismissed, even though malice were proved. Indeed a proof of malice in such circumstances, with the absence of a charge of it in the summons, would be irregular.

On the other hand, the defender has inserted in his defences eleven statements of facts, every one of which is defective from want of specification in essential particulars. It is not a satisfactory course to dispose of a case on matters of pleading, and therefore the Sheriff exercises the powers now vested in him by statute of giving the parties an opportunity to amend the record. The defence charges the pursuer with having carnal connection with a woman not named. That woman's name must be given. The rest of the defence consists of rumours upon which the defender says he acted. The time when he heard these rumours must be specified. It is not intended, however, to allow the defender to make a new and distinct charge against the pursuer of having had carnal connection with a woman in Yorkshire, nor to prove that all that is now set forth on the record is, that he was "accused" of having had such connection.

The additions suggested by the Sheriff were made by both parties, and the record was of new closed. The Sheriff thereafter pronounced the following Interlocutor:

The Sheriff having considered the closed record, as now amended, Finds that the condescendence is irrelevant, in so far as it charges the defender with having slandered the pursuer "on various occasions within the town of Paisley and places adjacent, to sundry persons in the month of January last, or about that time:" Allows the pursuer a proof of the rest of his averments: Allows the defender a proof of his aver ments, and to both parties a conjunct probation: Grants diligence at the instance of both parties against witnesses and havers, and remits the cause to the Sheriff-Substitute, and appoints the proof to proceed on such day as may be appointed by the Sheriff-Substitute,

NOTE.-The Sheriff refers to his note in the case at the instance of the present pursuer against John Black issued of this date.

The Note referred to is as follows:

malice?

NOTE--The main question involved in this case at present is, whether it is competent to prove that rumours prejudicial to the pursuer had been prevalent, and that the defender did nothing more than repeat the current rumour. There is a second question which does not call for the expression of any opinion at present, viz., Whether the defender acted in such circumstances as to entitle him to be considered privileged, and so to render it incumbent upon the pursuer to prove The second of these questions is one that can only be determined after proof, because the case stated by the pursuer does not show that the defender was acting in any privileged capa city, and at this stage the case must be looked at as stated by the pursuer (Trenton v. Currie, 22d Feb., 1843, 5 D., 705.) Upon the first question, the Sheriff thinks the law different from that stated by the Sheriff-Substitute. The defence to such actions as this may be a full justification of the alleged libel by proof of the veritas, or it may go merely to a pallia tion of the offence, so as to warrant a verdict for only one farthing; and this it may do, although it does not go the length of a justification of the libel. If, for example, it were currently reported throughout a whole town that a certain individual was a man of immoral life, surely the repetition of this rumour would be visited with a less amount of damages than would be imposed upon the inventor of the slander. Accordingly, it has been repeatedly ruled, that such proof going to palliation of the wrong done is competent.

the case of Brodie v. Blair, 17th July, 1834, but that case was prior to the case of M'Culloch v. Litt, which appears to have been very deliberately argued, and where the ruling was given only after a citation of the cases on the point both in the English and Scotch Courts.

Parties' procura

Proof was then led and concluded. tors were thereafter heard, and the Sheriff-Substitute pronounced the following Interlocutor:

Finds that the situation of minister to the congregation of the Tabernacle Church, Paisley, was vacant in January, 1863: Finds that in the course of that month one of the three persons who had been selected as candidates for the situation

was withdrawn from the leet of candidates: Finds that the that on or about 25th January, 1863, he was elected by the pursuer was proposed as a candidate in his room: And finds votes of a majority of the members of the said church to the situation of minister thereof: Finds that the defender was an office-bearer in said church, and that he possessed, in common with the other members thereof, a right of voting in the election of a minister thereto: Finds that between the date when the pursuer was proposed as a candidate and was elected as aforesaid, the defender made certain statements as to the pursuer's character and conduct in connection with, and in reference to, the ensuing election, viz.-1st, to the witnesses Mrs W- and her daughter (now Mrs W-), to whom he stated that he had been informed by the witness, John Black, that both married and unmarried women had been laid to the pursuer's charge, and that two different young women had each had a child to him; 2d, To the witness Mrs G or A- in presence of the witness Mrs A—, to whom he stated that the pursuer "was blamed with either one or two or three married women," or words to that effect; and, 3d, To the witness, James T- and his wife, to whom he stated that he had been told that the pursuer was "the father of two bastard children," and that he was a bad character; 4th, Finds farther, that thereafter, and on 24th January, 1863, the defender, in company with the witness, John Black, called at the house of James M'Naught, in Elderslie, who was also a member of the said church, and that Black having stated to the said James M'Naught, in the hearing of his son, James M'Naught, Jun., that he (Black) had been told that there were two illegitimate children born to the pursuer, the defender added, "Aye, four or five:" Finds that the parties to whom these statements were made were all members of the Tabernacle Church, and entitled to vote in the election of the minister thereof, except James known to the defender, and Mrs A, who was a mere M'Naught, Jun., whose presence is not proved to have been casual listener to the statement made by the defender to Mrs A, who was herself a member of the said church: Finds, that having regard to the circumstances in which, and the persons to whom the above statements were made by the defender, the same were privileged statements, and that the pursuer has failed to prove that the same were made maliciously, or without probable cause: Finds, separatim, that it is proved that the statement made in the hearing of Mrs A, viz., that the pursuer I was blamed with married defences, assoilzies the defender, and decerns: Finds the a true statement: Therefore, sustains the defender entitled to expenses, allows an account thereof to be given in, and remits the same, when lodged, to the auditor of Court to tax and report.

women, was

so ruled by Lord Wood in the case of M'Culloch v. Litt, 11th March, 1851, 13 D., p. 960, The Lord Chief Commissioner gave the same opinion in Scott v. M'Gavin, 2 Murray, 486, and Lord Gillies in Paterson v. Shaw, 5 Murray, 279. There is a ruling to the contrary effect by Lord President Hope in