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Kay's Originals Vol. 2


BIOGRAPHICAL SKETCHES. 385 ' of the pursuer, Answers for the defender,' and so on ; 'Finds, in respect that it is not alleged that ' the diamonds on the back of the Diamond Beetle are real Diamonds, or anything but shining ' spots, such as are found on other Diamond Beetles, which likewise occur, though in a smaller ' number, on a great number of other Beetles, somewhat different from the Beetle libelled, and ' similar to which there may be Beetles in Egypt, with shining spots on their backs, which may ' be termed Lice there, and may be different not only from the common Louse, but from the ' Louse mentioned by Moses as one of the plagues of Egypt, which is admitted to be a filthy ' troublesome Louse, even worse than the said Louse, which is clearly different from the Louse ' libelled. But that the other Louse is the same with, or similar to, the said Beetle, which is ' also the same with the other Beetle ; and although different from the said Beetle libelled, yet, ' as the said Beetle is similar to the other Beetle, and the said Louse to the said other Louse ' libelled ; and the other Louse to the other Beetle, which is the same with, or similar to, the ' Beetle, which somewhat resembles the Beetle libelled; assoilzies the defender, and finds ' expenses due.' " Say away, my Lords. "LORD MEADOWBANK.-This is a very intricate and puzzling question, my Lord. 1 have formed no decided opinion ; but at present I am rather inclined to think the interlocutor is right, though not upon the ratio assigned in it. It appears to me that there are two points for consideration ; Pirst, Whether the words libelled amount to a convicium; and, Sewndly, Admitting the convicium, whether the pursuer is entitled to found upon it in this action. Now, my Lords, if there be a eonvicium at all, it consists in the comparatio or comparison of the Scarabmiss or Beetle with the Egyptian Pediculus or Louse. My first doubt regards this point, but it is not at all founded on what the defender alleges, that there is no such animal as an E,oYytian Pediculw or Louse in rerum natura; for though it does not actually exist, it maypossibly exist ; and whether its existence be in m e velposse, is the same thing to this question, provided there be habiles for ascertaining what it would be if it did exist. How am I to discover what are the essentia of any Louse, whether Egyptian or not? It is very easy to describe its accidents as a naturalist would do-to say that it belongs to the tribe of assterm (or that it is a yellow, little, greedy, filthy, despicable reptile)-but we do not learn from this what the proprium of the animal is in a logical sense, and still less what its differentia are. Now, without these, it is impossible to judge whether there is a convicium or not ; for, in a case of this kind, which sequitur naturam delicti, we must take them meliori sensu, and presume the eomparatio to be in the melioribus tantum. And here I beg that parties, and the bar in general -[interrupted by Lord Hermand, Your Lordsht$ should address yourself to the Cha,ir]-I say- 1 beg it may be understood that I do not rest my opinion on the ground that veritccs convicii ezcusat. I am clear that although this Beetle actually were an Egyptian Pediculzw, it would afford no relevant defence, provided the calling it so were a conwicium ; and there my doubt lies. "With regard to the second point, I am satisfied that the Scarabcezcs or Beetle itself has no persona standi in judi&; and therefore the pursuer cannot insist in the name of the Searaw, or for his behoof. If the action lie at all, it must be at the instance of the pursuer himself, as the v e m dominus of the Scarabmzcs, for being calumniated through the convicium directed primarily against the animal standing in that relation to him. Now, abstracting from the qualification of an actual dominium, which is not alleged, I have great doubts whether a mere conuicium is necessarily transmitted from one object to another, through the relation of a dominium subsisting between them ; and, if not necessarily transmissible, we must see the principle of its actual transmission here ; and that has not yet been pointed out. " LORD HERMAND.-wB heard a little ago, my Lord, that there is a difficulty in this caae ; but I have not been fortunate enough, for my part, to find out where the difficulty lies. Will any man presume to tell me that a Beetle is not a Beetle, and that a Louse is not a Louse! I never s&w the petitionefs Beetle ; and what's more, I don't care whether I ever see it or not ; but I suppose it's like other Beetles, and that's enough for me. I have seen them, my Lord, ever since I was a child in my mother's arms ; and my mind tells me that nothing but the deepest and blackest malice rankling in the human breast could have suggested this comparison, or led any man to form a thought so injurious and insulting. But, my Lord, there's more here than all t h a t - a great deal-more. One could have thought the defender would have gratified his spite to the full But my doubt is here. " But, my Lord, I know the other reptile well. VOL II. 3 D
Volume 9 Page 514
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