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Scottish Court of Session Decisions >>
John Gordon of Rosecarrel v M'Lellan. [1708] 4 Brn 718 (13 November 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Brn040718-0218.html Cite as:
[1708] 4 Brn 718
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
John Gordon of Rosecarrel v. M'Lellan
Date: 13 November 1708
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The Commissary of Kirkcudbright decerns John Gordon of Rosecarrel to stand at the market-cross with a paper on his breast, bearing it was for defaming and slandering of Helen Maxwell, spouse to Charles M'Lellan of Colline, as guilty of adultery: and also, to stand bareheaded at the church door, and acknowledge, that he had fasely lied on her, and then to pay 500 merks to Samuel Cairnmont, his procurator-fiscal, as a pecuniary mulct for his defamation, and repairing her honour.
Of this sentence he craves a suspension, on this reason,—That all proven against him was, that he had come to the minister and some of the elders, and told he had heard a fama clamosa in the country, of her being guilty, and asked them what they knew about it: the occasion whereof was neither an affected curiosity nor a malicious design to reproach her; but having got a citation in August last, when the clerks to the circuit courts were taking up dittays for the Porteous-roll, to compear and depone what delinquents or criminals he knew in his bounds; having oft heard a flagrant report and suspicion of her being an adulteress, he, for clearing his own conscience, ad exonerandam animam, went to the minister and kirk-session to be informed if there were any grounds for that report, before he should give his oath; which was no more than the duty of every good man: and yet this is aggravated by the commissary as a crime, and the foresaid unjust sentence pronounced thereon. And that the rumour was not wholly groundless, appears from thir circumstances:—that Coline, the husband, deserted her company for some time on this same report; and that she is presently before the Presbytery, where things very indecent are already sworn against her.
The Lords remembered that Veritas convitti non excusat a convitto where it is done animo injuriandi: But this proceeded neither from petulancy or malice, but only to inform himself when, necessitate juris, he was called to depone what crimes he knew in his parish: and so the Lords thought the commissary had committed gross iniquity; and therefore passed the suspension, and reserved, to the conclusion and discussing of the cause, what such particularity deserved.
