James Miller, and Others, Trustees of the late John Haggart, Esq. Advocate - Murra - Abercromby v. Right Honourable Charles Hope, Lord President of the Court of Session - Attorney-General Copel - Menzies [1824] UKHL 2_Shaw_125

UKHL
James Miller, and Others, Trustees of the late John Haggart, Esq. Advocate - Murra - Abercromby v. Right Honourable Charles Hope, Lord President of the Court of Session - Attorney-General Copel - Menzies
[1824] UKHL 2_Shaw_125 · 1809-04-12
James Miller , and Others, Trustees of the late John Haggart , Esq. Advocate, Appellants.—Murray—Abercromby v. Right Honourable Charles Hope , Lord President of the Court of Session, Respondent.—Attorney-General Copely—MenziesApril 1 . 1824 .Lord Pitmilly .

Subject_ Jurisdiction —Reparation. —

Held, (affirming the judgment of the Court of Session), That an action of damages is not competent against a supreme Judge, for a censure passed by him, while acting in his judicial capacity, on a Counsel practising at the Bar, and engaged in the cause then before the Court, although it was alleged that the censure had been made injuriously, and from motives of private malice.The late John Haggart, Esq. advocate, a practising lawyer at the Scottish Bar, conceiving that he had been injured by certain remarks made from the Chair by Lord Justice-Clerk Hope, afterwards Lord President, on advising a cause in which he was counsel, raised an action against his Lordship, in which, after narrating that he had been for thirty years at the Bar, during which period there had been five Judges in the Chair, by none of whom he had ever been censured, proceeded to state the circumstances in these terms:—of the few who had read the petition, must have conceived that his Lordship not only considered the pursuer deficient in intellect, but devoid of candour, and that he had deliberately misrepresented the terms of the Lord Ordinary's second interlocutor. That what was stated in the petition, and to which his Lordship alluded, was in the following terms:—
“That, in the year 1809, a cause between the Duke of Athole and General Robertson of Lude depended before the Second Division of the Court of Session, wherein the Right Honourable Charles Hope then presided as Lord Justice-Clerk. That the Honourable Henry Erskine, Mr Matthew Ross, Mr John Clerk, and the pursuer, were counsel for General Robertson; and it being deemed proper to submit an interlocutor pronounced by the Lord Ordinary to the review of the Court, the task of preparing a petition devolved on the pursuer. That after the petition was prepared, it was laid before the Dean of Faculty, who revised and corrected the press-copy. That when the petition was put to the roll, it was appointed to be answered, and no animadversion was made on any of the expressions contained in it. That when the petition and answers came to be advised, the Right Honourable Charles Hope, Lord Justice-Clerk, not only censured expressions used in the petition, but expressed himself towards the pursuer in terms that greatly hurt his feelings. That on the 11th of April 1809, the pursuer wrote his Lordship, calling to his recollection the expressions he had made use of, and expressing a hope that an explanation would be given. He received the following answer:—
receipt of your letter of yesterday. If I thought that I were bound to give any kind of private explanation to any human being for what I may say or do on the Bench, I should consider myself as, from that moment, surrendering my independence, and forfeiting all title to the confidence of my country. Do not suppose, Sir, from this, that I wish to arrogate to myself an exemption from all responsibility for what I may say on the Bench; on the contrary, I know that I am responsible, and I hope I shall always act under the conviction that I am so. But it is a legal and public responsibility only to which I will submit.”

“Granton, 12th April 1809. Sir , — I have the honour to acknowledge the

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That a question afterwards depended before the First Division of the Court, between the Duke of Athole and Mr Leslie of Butterstown, relative to a large extent of pasture ground; and the Honourable Henry Erskine, Mr Matthew Ross, Mr John Greenshields, Mr Duncan Macfarlane, Mr Henry Cockburn, and the pursuer, were counsel for Mr Leslie in this cause. That it was the opinion of all the counsel that Mr Leslie would be successful; but difficulties arose, in point of form, from two interlocutors pronounced, by the Lord Ordinary that did not apply to the shape of the cause; and it became necessary to apply several times to the Court, with the view of removing these difficulties, and none of the statements or expressions in the petitions were censured. That it being deemed expedient to present a petition to the Court on the merits of. the cause, the process was laid before the pursuer to prepare it; and that he might be enabled to do justice to his client, and state the cause fully to the Court, he went to the ground in dispute, and took down notes explanatory of all the points in controversy. That, after this, he framed a petition with his own hand, and transmitted it to Edinburgh, where it was printed and boxed the 10th of September 1812. That the petition was moved by Lord President Hope on the 17th November 1812, when his Lordship turned to the 23d page of the petition, and read the interlocutors of the Lord Ordinary, dated the 11th June 1808, and 24th May 1809; and, without reading the statement in the petition to which he alluded, his Lordship expressed himself in the following terms, or used words of the same import:—
“I do not know what the intellects of the gentleman who framed this petition are, or what he conceives ours to be; I do not know what his candour may be, or what he expects ours to be, when he states that the second condescendence was not appointed in terms of the Act of Sederunt.”
That, by using these expressions, the audience, which was numerous, with the exception

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“His Lordship appointed the pursuer to give in a condescendence, in terms of the Act of Sederunt, of what he offers to prove in support of the several conclusions of his libel; and when given in, allows the defender to see and answer the same. And a short representation being presented in the possessory question, his Lordship “sisted procedure till the process of reduction comes to be advised.” A condescendence of six pages was accordingly lodged; but the answers were argumentative, and extended to 15 pages; and his Lordship appointed both processes to be enrolled, that they may be conjoined, and an interlocutor pronounced in the whole cause. The processes were enrolled, and his Lordship “conjoined this process with the possessory process; and in the conjoined actions appoints the pursuer, John Leslie, to give in a more specific condescendence of what he offers to prove in support of the conclusions of his libel.” As the condescendence was not appointed to be framed in terms of the Act of Sederunt, and the respondent had not confined himself to facts in his answers to the former condescendence, it was deemed expedient, in the condescendence that was now appointed, to meet and obviate what was stated in the answers to the first condescendence; but his Lordship, under the impression that he had appointed a condescendence in terms of the Act of Sederunt, pronounced the following interlocutor.””
After mentioning that a similar statement had been contained in a previous petition, which had not been censured, and that, if what was stated had been read, it would have appeared to the audience that Mr Haggart had no intention to misrepresent the terms of the Lord Ordinary's interlocutor; that they had been transcribed, and that the reason for not framing the condescendence in terms of the Act of Sederunt was fairly stated; the summons proceeded in these terms:—alluded to what was there stated to have been the opinion of Lord President Blair, when the first petition was moved on the 18th February 1811, and a short petition, requesting an explanation of the interlocutor written on the first, was moved on the 9th March 1811, his Lordship expressed himself in the following terms, or used words of the same import:—
“That the censure was therefore unmerited, and the injury the pursuer sustained was aggravated by his Lordship not reading the passages in the petition to which he alluded. That his Lordship next turned to the 29th page of the petition, and, without reading the passage he intended to censure, or explaining that he merely

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“Mr Haggart has here, as is his usual practice, stated facts and circumstances of which there is no evidence on the record, and which live in the memory and recollection of that gentleman alone. Mr Haggart ? has conducted this cause, as he does all the others he is concerned in, differently from all the other counsel at the Bar.”
That none but those who had read the petition could be aware that his Lordship here alluded to what was reported to have been Lord President Blair's opinion; and all the rest of the audience must have been impressed, that the pursuer had stated facts and circumstances relative to the merits of the cause, of which there was no evidence, written or parole; and although the pursuer was not directly accused of stating falsehoods of his, own invention, that was the inference resulting from the words spoken by his Lordship. That if his Lordship had communicated, that he merely alluded to the report given in the petition of Lord President Blair's opinion, every practitioner present would have been aware that no record of such opinions is kept, and that they are made from notes taken by counsel or agents; and it would have appeared to every practitioner present, that the words used by his Lordship were inapplicable, and the censure far greater than the offence merited, if the pursuer had committed an error in his notes, and given an inaccurate report.”It was then stated, that there was satisfactory evidence that the report was correct; that the statement was transcribed from a former petition, drawn by Mr Greenshields, which was not censured; that, however, “his Lordship did not limit his censure to the case under consideration, but accused the pursuer of inventing and stating facts of which there was no evidence in all the causes he was concerned in; and it was imputed to him that he had misconducted the case of Mr Leslie, and every other case he was employed in from the moment that he came to the Bar. That it belonged to his Lordship to censure the petition under the consideration of the Court, if it was censurable, and his Lordship was entitled to censure the pursuer, in so far as he was concerned, if the cause had been misconducted: but his Lordship was not entitled to stigmatize the pursuer's whole conduct at the Bar; and it was unjust to charge him

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“Edinburgh, 5th December 1812. Sir , —On 6 mentioning the matter to my brethren this morning, they did not think it incumbent on me to have any farther correspondence with you on the subject of your letter; and that opinion coinciding entirely with my own, I have to request that you will consider this as the last and only communication you will receive from me.”
That his Lordship having refused to give any explanation of the unwarranted expressions used by him, or make any reparation for wounding the pursuer's feelings, or injuring his private and professional character, he is laid under the necessity of seeking redress in the manner pointed out by his Lordship.” The summons therefore concluded, that it should be found that the expressions were unwarranted and injurious, and that his Lordship should be found liable in

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Subsequent to the above action being brought into Court, his Lordship having again from the Chair made certain reflections upon Mr Haggart for his conduct as counsel in another cause, Mr Haggart brought a second summons, in which the circumstances were stated in these terms:—the pursuer in his professional character, said, —“I have never seen such low wit, vulgar abuse, scurrility, and buffoonery, as in these answers. It is painful to think the Bar of Scotland has furnished a man capable of writing such a paper.” That after his Lordship had uttered part of those Injurious epithets, the pursuer requested to be allowed time to take down the words spoken, when his Lordship said, —“I will repeat them three times over;” and after doing so, he said, —“I shall attest them for your satisfaction, if you take down accurately.” That a paper, containing the epithets uttered, being next day handed to his Lordship on the Bench, he, after reading it, wrote the following words at the foot thereof:—“The above seems to me to be correctly the substance of what passed, (signed) C. Hope ;” which paper will be produced in the proceedings to follow hereupon. That the time the pursuer had to prepare the answers being much shorter than is usually given, and he having apologized for any imperfections in the answers before any opinion was delivered from the Bench, and having craved that the passages which were pointed out as exceptionable should be expunged, it is manifest the above expressions must have been used from a malicious intention, and for the purpose of injuring the pursuer in his professional and private character; and this will farther appear on perusal of the answers, which, if they merited any censure at all, under the circumstances in which they were prepared, did not merit those vilifying epithets which were uttered, and, after a deliberation of twenty-four hours, were abidden by and attested by the said Right Honourable Charles Hope. That the offence was aggravated by using the above defamatory expressions during the dependence of a previous action, brought by the pursuer against the said Right Honourable Charles Hope for a similar offence.”
“That he was requested by Mrs Belinda Edwards, widow of Colonel George Colebrooke, of Crawford-Douglas, presently spouse of John Taaffe, Esq. of Smarmore Castle, to prepare answers for her to two petitions presented to the First Division of the Court of Session by Richard Mackenzie, writer to the signet, and others. The two petitions which were to be answered, and a variety of papers which it was necessary to peruse, were only put on the pursuer's table on Friday the 24th day of February last; and as the cause was put to the roll for advising the day following, it was impossible for the pursuer to prepare the answers. That when the two petitions were moved, on Saturday the 25th day of February, the Court prorogated the time for lodging the answers till Monday immediately following, and appointed the petitions to be put to the roll on Tuesday, with or without answers. That the cause was of great importance to Mrs Taaffe, and the time allowed for preparing the answers was too short; but the pursuer used every effort he could, and answers were prepared and printed on Monday; the advising of the two petitions and answers was postponed till Wednesday the 1st of March; and before any opinion was delivered, the pursuer stated, that the time allowed him for preparing the answers was so limited, that he was aware he had not done full justice to his client, and that the answers were imperfect. That one of the Judges having referred to two passages in the answers, one of them as being injurious to Mrs Lee of Hill-street, Edinburgh, and the other as injurious to the said Richard Mackenzie, the pursuer immediately stated, that he had no intention of introducing any thing injurious to Mrs Lee or Mr Mackenzie, and moved that the passages referred to might be expunged. That the Right Honourable Charles Hope, Lord President, who had on another occasion unwarrantably traduced and vilified the pursuer, now, from motives of private malice, and for the purpose of injuring

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He therefore concluded, that it ought to be found that the expressions were ‘unwarranted, malicious, and injurious,’ and that his Lordship should be ordained to pay L.5000 of damages.

Against the first of these actions his Lordship lodged these defences:—

the present action of damages is groundless. Therefore the defender ought to be assoilzied.”
“The statement contained in the libel is inaccurate in many respects. But the defender conceives that it would be improper in him to go into any explanation, in this process, of the circumstances on which he delivered his opinion as a Judge. It is sufficient to say, that, on the occasions libelled, he acted in the discharge of his judicial duty; and therefore, even upon the supposition that the statement were accurate, nevertheless

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The same defence was also lodged in the second action, and it having been conjoined with the previous one, the Lord Ordinary, after hearing parties, assoilzied his Lordship, and, on advising a representation, pronounced this interlocutor:—
“Finds, that an action of damages cannot be maintained at the instance of an advocate against a Judge of this Court, on the ground of injury alleged to have arisen from a censure passed in Court on such advocate for his manner of pleading a particular cause: Finds, that an allegation of private malice having been the motive of the Judge in inflicting the censure complained of, does not render the action competent; and that proof of alleged malice is therefore inadmissible: And further finds, that although the pursuer in this action libels malice, yet he has not suggested in his pleading any proof, or offer of proof, of this charge; and that the existence of the alleged malice is merely inferred by the pursuer from the words used, and from censures having been pronounced against him by the defender more than once: Finds, that the charge of malice which is thus made, is laid on grounds which are insufficient to prove the charge, even were such an action competent, when malice is libelled, and relevant proof of it is offered;”
and therefore adhered.Against this judgment Mr Haggart reclaimed; but before the cause was advised he died, and the appellants, his trustees, (who had been enjoined by him to prosecute the actions), were thereupon sisted as parties.On advising the petition with answers, Lord Craigie observed: —In this case, when the petition was moved, it appeared to me that we should have seen the terms in which the original pursuer directed his trustees to prosecute the action; and unless these directions had been made a condition of the settlement, I think that the trustees were called on to exercise their own discretion in carrying on the action; and I think in such a case it might have been proper for the defender to have insisted on their giving their oath of calumny. If they had been so called on, I am satisfied that the action would not have been proceeded in, as being neither expedient for the purpose which Mr Haggart had in view for clearing his own character, nor just to the other party.But if we are called on to decide the question, my opinion is, that the interlocutor is substantially right; but there are some findings in it with which I cannot agree:— 1 st , That there can be no action against a Judge in this Court for censure passed

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In the 2d place, I cannot agree with the finding, that it is necessary to prove malice exclusively of the act itself. I think the act may be of such a nature as to prove malice of itself, so as to make it unintelligible without supposing malice. On these points I think the interlocutor goes too far. At the same time, if I were called on to decide the point in this case, I would say, that the words do not import malice. They are strong, no doubt, but they were said on the spur of the occasion, and I think were meant, not so much to injure the party, as to express the indignation the Judge felt at the proceedings. In that view the case ought to be decided as the Ordinary has done. But I must go further, and I say, that in order to authorize a prosecution of this kind, other measures ought to have been adopted; the words should have been minuted at the time, and the pursuer should have taken the opinion of the rest of the Court if he was injured or not. The injury might thus have been ascertained, and, in addition to taking away the censure, whether there was room for an action of damages. But the presumption is, that the Court did approve of, and go along with the Judge in what was said. But, under all the circumstances, I think no proceedings can be held in this action. If loose expressions, used in the course of an argument or an opinion, are to be decided on, not by those Judges who sit along with the Judge who used them, but by others, I think it is inexpedient. I can conceive a case where an action could not even be brought. In the case of a judgment pronounced by a Court, consisting of a number of members, could they try themselves? It would be necessary to have an impeachment, or a bill of pains and penalties. But in a case like this, if any injury has been done, the proper steps were not taken to enable the party to bring his action.

Lord Robertson. —This is an action originally brought by Mr

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Lord Glenlee. — agree. very much with what was said by Lord Craigie. I was for seeing the petition, because it appeared to me, that the grounds of defence went a great deal further, in freeing Judges from an action on account of malversations, than I was disposed to go. I am aware that, if mere iniquity is alleged—of the Judge having done a thing which he was entitled to do, but having done it in a way not called for—that is, merely an erroneous performance of an act otherwise legal; I think, without entering into the distinction of higher or lower Courts, no action would lie. But if I offer a separate proof that the Judge has been bribed to pronounce an erroneous judgment, though he might not be amenable for the erroneous judgment, yet if I can instruct that a bribe was actually given, I would have little doubt in that case that an action would be competent. But, where the only thing complained of is, that the Judge has performed a judicial act in an improper way, there, I think, it would not do to allow an action. But, if you came to a Judge going ultra vires, though it may still bear the character of a judicial act, I think he would be responsible. For instance, it would be a judicial act if we were judging of a supersedes of diligence, and we were to allow it, though not allowed by the statute: this

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Lord Baunatyne. —In a case of this kind, I think it is necessary that every Judge should express the grounds of his opinion. It is not necessary to say any thing as to the origin of this action; the only point is, whether it can be mainlined. My opinion coincides with that of the Lord Ordinary, as ex-pressed in his interlocutor. It belongs to every Court to regulate the practitioners at their Bar. As to an inferior Judge, we all know where the remedy lies for malversation; the superior Court will apply the remedy. But it is another question when the abuse has taken place in a Court like ours, composed

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Lord Justice-Clerk. —When this petition was moved, I took the liberty of stating shortly the grounds leading me, even on the petition, summons, and defences, to the opinion that the petition ought to be refused; but as it appeared to your Lordships, from the novelty of the case, that it was better to have an answer on the record, you ordered it to be answered; and I do not regret that that step was taken, as it has led, not only to a full answer, but to deliberate opinions on the case by your Lordships. I should have considered the case of infinite importance indeed, if you had had any hesitation as to the judgment to be pronounced; because I should have considered, that the sustaining an action of this anomalous and unprecedented nature, would have been one of the greatest innovations since the institution of the College of Justice. But, in consequence of the opinions expressed

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I have just one observation more to make. I have looked at the summonses, and attended to the words used, all accompanied with a statement as to what led to the conduct of the Court. All and each of them apply to the particular cases then before the Court. No doubt there is one of them, which alludes to the mode in which that case was conducted being according to the mode of conducting cases by that gentleman. I am not prepared, in reference to the way which, upon the face of the summons, that ground of action is stated, to say that this, which is supposed to be an excess of power, can be viewed as such; because I am bound to say, that if any practitioner has a peculiar mode of conducting himself as to judicial procedure in every case, and it becomes necessary for a Judge to take notice of it in the case then under consideration, that if that Judge is satisfied that his conduct is the same in other cases, he is justified in saying so, if he conscientiously believes it. I beg leave to say, that I do not conceive that there is any thing in that part of the charge that I can lay hold of. And as to all of them, I may add, that they do not demonstrate malice; and the only mode in which malice is attempted to be made out is by their being reiterated on several occasions. If it so happens, (as is justly observed in the interlocutor), that he repeats the conduct which called for the censure, is it the fault of the Judge that he is bound in duty to repeat the censure ? That infers no malice, and yet it seems it is on

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The Court, therefore, on the 1st June 1821, adhered, and found his Lordship entitled to expenses. *The appellants then entered an appeal, and contended that the judgments were erroneous, —1. Because the expressions directed against the conduct and character of Mr Haggart were highly injurious to him, and were calculated to destroy his professional reputation, and consequently were such as to entitle him to damages, unless they could be justified under the circumstances in which they were pronounced. But the only ground of justification was, that his Lordship had made use of those expressions in the bona fide exercise of his power and right, as a supreme Judge, to censure the conduct of a counsel conducting causes before the Court. This power, under proper limits, the appellants admitted; but they contended, that, in both instances libelled, its due limits had been so far exceeded as to warrant the inference that it had not been bona fide exercised, but had been used to gratify a feeling of irritation against Mr Haggart; that instead of being confined to the case before the Court, it had been extended to the whole professional life of Mr Haggart, —a latitude of censure which was inconsistent with the liberty and independence of the Bar, and highly unconstitutional and oppressive, (particularly as, in the first of the two instances libelled, Mr Haggart was denied all opportunity of defending himself); and that, unless the power of censure was placed under limitations, the reputation and fortunes of counsel would be left entirely at the discretion of any individual Judge who might entertain vindictive feelings, and be inclined to gratify them, by promulgating from the Bench unfounded and malicious charges.2. Because, as it was libelled that the expressions had been made use of from motives of private malice, and as in judging of a question of relevancy this must be assumed to be true, the appellants were entitled to a proof, and at all events to lodge a

Footnote

* See 1. Shaw and Ballantine, No. 54. and Fac. Coll.

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3. That although Judges were protected in general against claims for what they may have done in the due exercise of their judicial functions, yet there was no authority which declared that they should be exempt from responsibility for the malicious abuse of their powers; and that all the statutes to which reference had been made merely established that they were to be liable to punishment by the King, but not that private individuals were not to be entitled to pecuniary redress.

On the other hand, it was maintained by his Lordship, —

1. That even if malice were substantially alleged, this would not support the action of the appellants. In support of this proposition he contended, that as the ground of the action was a judicial act done in his capacity of President of the Court of Session, in the presence of, and under the controul of the Court, as its organ and speaker, the question came to be, whether, upon a mere general allegation of malice, any party who has been in Court may raise an action of damages against any of the Judges, or the whole Court of Session, for an act done by them or by the Court? If this were competent, then, as Judges were onerous agents, and there was as little reason for distinguishing between malice and any other cause of wrong, actions might be instituted against them upon mere allegations of favour, fear, negligence, or incapacity. But if such actions were competent, then not only the individual Judges, but the whole Court of Session, and even the Court of Justiciary and Exchequer, might be convened before the Commissary, the Sheriff, or the Bailie Court, and their proceedings reviewed by these inferior tribunals;—a consequence so anomalous and so absurd that it demonstrated the incompetency of the action; and accordingly no precedent had been adduced in support of it, although there must have been frequent opportunities and inducements to try the question. On the contrary, there were numerous authorities, both in the law of Scotland and England, which established that a supreme Judge was not subject to any action, either before his own or any of the Inferior Courts, for what he had done in performing his judicial functions, and that he was only answerable to some extraordinary jurisdiction or power, as the King in Council, or Parliament. And,2. That as it was not pretended that the appellants could

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The House of Lords, in each of the cases, “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed, with L.200 costs.”Lord Gifford. — My Lords, I consider this a cause of very great importance indeed, as it involves a question, Whether an action is to be maintained by a private individual against a Judge for words spoken in the exercise of his judicial duty, delivered from the Bench, in the face of judgment?I look upon it as extremely fortunate that, in every part of his Majesty's dominions, all Judges, however high their rank and station, are responsible for their official conduct; and most lamentable and frightful would be the situation of the country if they were not; for, however great their elevation, Judges are still but men, and subject to all the errors and infirmities of human nature. But the question here is, not whether a Judge lies under a public responsibility for his judicial acts ? but whether an action of damages is competent against the Judge, at the suit of any private party who may feel himself aggrieved by the judicial acts of that Judge?My Lords,—If I had felt any doubt upon this point, I should have had great hesitation in coming to the conclusion at which I have arrived; but, after the utmost attention which I have bestowed upon the present case, I have no difficulty in giving it as my firm and decided opinion, that this action is not maintainable.It has been admitted by the appellants, that this is the first attempt to bring such an action; and after the ability and industry so eminently displayed by their counsel, they have not been able to lay before your Lordships a single authority, either from statutes, from adjudged cases, from the opinions of text writers, or from the dictum of any Judge, to authorize such a proceeding. And, my Lords, so far is this state of things from being productive of any detriment to the due administration of justice, that, were the law otherwise, it would go at once to subvert the independency of Judges, and be found, upon very short experience, to operate most prejudicially upon the interests of the suitors themselves.My Lords,—Much as it has been urged at your Lordships' Bar, I can discover no ground for the distinction endeavoured to be drawn, between language used by a Judge upon the Bench, and any other judicial act, for those who argue for the competency of such actions as those now brought before this House, must go the length of maintaining, that any judgment may be canvassed by an unsuccessful party,

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It has been said, that such actions can only be prosecuted before the Court of Session. I can find no authority for such an opinion, or for holding that they are not equally competent before an inferior Court. If so, what must be the consequence ? Of necessity the inferior Court must inquire into the proceedings which gave rise to the judicial act complained of, before they can decide upon the question of damages. It is admitted, that the Court may censure either a party or a practitioner of the law, for any irregularities appearing in the course of a suit; and thus the inferior Court would be entitled, and indeed called upon, to overhaul the whole proceedings of the Judge or Court complained of, in order that such an inferior Court may be enabled to determine whether the censure was merited or not. But this leads inevitably to the conclusion, that the inferior Court may reverse the decree of the superior—a conclusion sufficiently absurd to prove that the argument cannot possibly be sound.I make no remark whatever upon the conduct of Mr Haggart, of whom I know nothing, and probably your Lordships know nothing. I shall, in my remarks which I have to make, abstain from any observation upon the particular expressions which called down the censure complained of, because these expressions have not been set forth in the printed cases, and because the person upon whom the censure was inflicted is dead. I may, however, observe, upon the first summons, (which is by far the most material), that it narrates various proceedings in which Mr Haggart, acting professionally as an advocate at the Scottish Bar, had been visited with animadversions from the Lord President; and particularly, in the year 1809, in the course of an action depending in the Court of Session, between his Grace the Duke of Athole and a gentleman of the name of Robertson. The summons then recites subsequent occurrences, in a suit between the same noble Duke and a Mr Leslie, in which the Lord President is said to have used the expressions which alone are made the grounds of this first action. Those which had occurred on the former occasion appeared to have been introduced for the purpose of proving malice on the part of the respondent. But, my Lords, if these appellants had sought reparation in an inferior Court, such Court must have gone into an investigation of all the proceedings referred to in the summons, (or declaration, as we should call it in the English Courts), whether stated as matter of substantive charge, or of aggravation.My Lords,—The expressions ascribed to the Lord President, and which appear to have given the most offence to the deceased, are thus stated in the summons, which your Lordships will find printed on p. 4. of the appendix to the respondent's case. In the first, ‘Mr Haggart has here, as is his usual practice, stated facts and circumstances, of which there is no evidence on the record, and which live in the memory and recollection of that gentleman alone. Mr Haggart has conducted

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But, my Lords, it is here most important to observe, that the Lord President is not even accused of having said any thing extrajudicially. The words attributed to the learned Judge were uttered in presence of all the other Judges, and in the hearing of the whole. His Lordship said from the Chair, ‘I conversed with my brethren on this subject in the robing room, and the opinion I have delivered is that of the whole Court.’ The reprimand from the Chair must, therefore, be considered and held to be the act of the whole Court; and if the other Judges entertained an opinion different from that of the Lord President, they should have said so.My Lords,—Several Acts of the Parliament of Scotland have been cited in these papers, and by counsel at the Bar, in the course of their very able argument, to prove the responsibility of Judges; but after a careful examination of all these statutes, I am decidedly of opinion, that every one of them relates to a public responsibility, without affording the slightest countenance to a civil action of damages at the suit of a private party.With regard to the second action brought under appeal, the language complained of is much weaker; and it appears that, in this instance, the Lord President was not the first person who had noticed exceptionable language in Mr Haggart's recorded pleadings. Indeed, it is admitted in the summons, that one of the Judges had previously observed upon certain passages in the paper drawn by that counsel, as being injurious to two persons, the one a lady and the other a gentleman.It has been objected, my Lords, on the part of the appellants, that we are not to make any reference to the law of England, as this is purely a question of Scotch law. But, in the absence of all authority in the law of Scotland, that of the sister kingdom, as founded on good sense, and the most correct views of expediency, may be very correctly and usefully referred to; and no lawyer will assert, that any such actions, as those now before the House, could be entertained in the Courts of this country. Without a remedy so unheard-of, the independence of the English Bar has not suffered; nor has the want of such a remedy been injurious to the interests of suitors in our Courts.My Lords,—To admit of such evidence of malice as has here been offered, (evidence to be derived merely from construction of the ‘words themselves,’) would be to make way for the utmost confusion and mischief in the administration of justice; and, upon the whole, the

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In conclusion, my Lords, considering the nature of these actions, the long protracted litigation to which the learned Judge has been exposed, and that this is the first attempt to subject the conduct of any Judge to such a scrutiny at the suit of a private party, I am farther of opinion, that we would not do justice to the eminent character who has now been made to appear as respondent, if we did not order those interlocutors to be affirmed, with costs.Appellants' Authorities .—Anderson, Jan. 3. 1750, (13,949.); 4. Stair, 1. 6.; 1537, ch. 36.; 1. Ersk. 3. 9. Respondent's Authorities —Instruct to Commissaries, 1563, § 8.; Balfour, 657.; Spott. Pract. Preface; Comyn's Dig. Tit. Action on the Case for a Conspiracy, B; 1. Hawkins, 72. 6.; 1. Robert I. ch. 31.; 1469, ch. 20.; 1487, ch. 12.; 1540, ch. 104.; 4. Stair, 1. 6. 24, 25, 26.; 6. Anne, ch. 6. § 1.Solicitors: J. Richardson— Spottiswoode and Robertson, —Solicitors.

(Ap. Ca. No . 25. )