False Accusation. - Verbal and real Injury. - Scandal and Defamation. - Does veritas conviti excuse? - Whether a verbal Injury may be retorted by a real one ex intervallo?
Hill v. Sim
Date: 27 July 1611 Case No. No 15.
Whether a judicial accusation is to be reputed a formal injury?
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Sim had raised a process against Hill before the Magistrates, to have him fined and punished for openly threatening to stick him and burn his house; and not having insisted, Hill raises a process of scandal against him before the Commissaries of Edinburgh, to make a recantation of the slander, actione ad palinodiam, the libel before the Bailies of Queensferry having no other design but to defame his good name and reputation. Which cause being brought before the Lords, it was urged for Hill, This strikes not only at his fame, but likewise at his interest and livelyhood in that place; for if he be not vindicated and repaired he may give over his trade, reputation supporting credit in the course of human affairs in the world. And Sir George Mackenzie in his Criminals, Tit. Injuries, tells us, the Commissary inflict pecuniary mulcts in such cases, and cause the offenders stand at church-doors, do penance, and crave pardon, it being an ecclesiastic censure borrowed both from the Roman and Canon law. And the Lords have ratified such sentences, 5th February 1669, Deans contra Bothwell, No 290. p. 7577; and the very last session, Robertson against Arbuthnot And it is no defence, that it is done judicially in a court; for that rather aggravates the guilt, transferring it from a verbal to a more attrocious written injury, and spreads it more than transient words can do. Answered, The animus injuriandi goes to the essence of this crime, which can never be presumed of one who applies to a judge in a legal way, and complains what the fama clamasa of the neighbourhood was full of; and if he conceived himself injured, he ought to have applied to the same Judge where it was tabled, and not have carried it away to the Commissaries, who, though competent to such processes, when brought originally before them, yet they ought not to meddle where it is depending before another court. Replied, It can never excuse that the defamation was judicial, for law has not been defective to provide against such, as well as extrajudicial slanders. And the title De Injuriis famosis libellis is full on this point. And Faber ad tit. De Injuriis, determines the case qui alium vocavit in jus et dedit libellum, et succubuit, præsumitur animo injuriandi id fecisse, quando existimatio ejus qui vocatur inde lædi potest. Neither could I insist before the Bailies for reparation, because he took up the process, whereby I could only instruct the affront done me; and a defamer ought not to have the election of a Judge privative of the Commissaries, who are acknowledged to be the Judges Ordinary to all such cases. The Lords at first found, That what one pursued judicially could not be reputed a formal injury. But there being a struggle, many contending it was of a more heinous nature than extrajudicial calumnies, they stopt the interlocutor till it were farther considered.
