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Scottish Court of Session Decisions >>
James Dallas v Marion Simpson. [1696] 4 Brn 318 (9 June 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040318-0684.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Dallas v. Marion Simpson
Date: 9 June 1696
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Mr James Dallas, younger of St Martins, obtained a decreet before the Commissary of Stirling against Marion Simpson, for slander, fining her and her husband in 200 merks, and ordaining her to appear before the congregation and crave pardon; which being suspended, the Lord Ordinary assoilyied the husband from the fine, (else it were in the power of an intemperate woman's tongue to ruin her husband;) but found it ought to affect her personally, if she survived the husband, and her share of the moveables, in case of the dissolution of the marriage by her death; and decerned her to perform the palinodia: But she thereafter alleging that she was only holden as confessed for not deponing, she produced a second extract of the decreet, bearing,—she had obtained the next court-day to depone; without regard to which they had extracted the decreet against her. Though there was a jus quœsitum to the charger by his first extract, yet it was considered that both ought to be regulated by the warrants signed by the judge; therefore the Lord Ordinary granted diligence for production of the same, that it might appear which of the two extracts were most conform to the principal warrants, as also to cite the clerk to answer for giving out contradictory extracts; but, the woman having neglected to take out a second diligence, the term was circumduced against her. On a bill to the Lords, they reponed her still, reserving to themselves the consideration of the expenses at the conclusion of the cause; for they thought it very unfavourable on the pursuer's part to prosecute a woman for indiscreet language, where she was provoked by his riding through her corn; and however it might be an injury, yet it could not be properly a slander, there having been few or no witnesses present; and if she did not utter the slanderous words libelled, then it would be a scorning of God and man, and a lie to confess them before the congregation; and therefore reponed her again to her oath, &c.; and thought it could not be properly called a slander, where it could only be proven by the party's oath.
