Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Jo Fork v. William Fyffe
1673.
July.
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Jo. Fork, writer in Paislay, having pursued William Fyffe there, before the Commissary of Glasgow, for calumniating him, in having called him a mensworn man, and to get him punished by fining, and to restore him to his good name: of this cause Fyffe raised an advocation; at the calling whereof, he insisted on this reason, that the Commissary had committed iniquity in repelling an unanswerable defence, viz. that he behoved to be assoilyied from that action of scandal, because it was res hactenus judicata, in so far as he having been already pursued before the Bailies of Paislay, at the Procurator Fiscal's instance, for these injurious words, he was assoilyied, in regard he proved to the assize what he had reproached Fork with to be true, and that he had perjured himself in sundry depositions; nam veritas convitii excusat a convitio.
Answered,—1mo, Non apparet, that the Commissary has repelled that defence, and so, non apparet he has done any iniquity. 2do, If he has repelled it, he has done most justly, because the said decreet-absolvitor was contrived, patched up, and carried through, by collusion, moris, et dicis tantum gratia, of purpose to assoilyie Fork; the party injured compearing, and utterly disclaiming the said pursuit; likeas, the Bailies of Paislay, mean persons, and in a burgh of barony, were no way competent to a matter of so high importance as perjury, and one of them as sib to this Fyffe. 3tio, They proceeded spreto mandato judicis superioris, videlicet, of the Commissary of Glasgow, who, conform to the power given them by the injunctions, sent and discharged them to proceed in a matter of scandal which was consistorial; and which charge they contumaciously disobeyed. 4to, All that is vindicated by this decret is only the actio pro vindicta publica, which was res inter alios acta quoad Fork; and therefore his action and private resentment of the wrong done to him, being distinct from that done to the public, remains yet entire. [1. 18, in princ. D. de Injuriis. Vide infra, folio 312, Monteith against Stitts, 13th December, 1677; item 24 July, 1678, Mr William Weir and Calander.) As for the depositions whereupon that decreet-absolvitor is founded, the same are of no force or moment to infer any such odious crime objected against Fork, or even to assoilyie Fyffe, as if he had had some probable ground wherefore to think and call him men-sworn; because the same are not subscribed by him, nor the judge, nor clerk, nor any other at his command. As to the axiom, veritas convicii, &c. it is false where the same is objected extrajudicially, ingeminat animo injuriandi vel calumniandi, or are such delicts and crimes as non interest reipublicæ scire; which is Fork's case.
Yet, videtur interesse reipublicæ perjuria manifestari et detegi. Vide l. 5, C. de Injuriis; l. 2. C. Quando et quibus, 4ta pars; L. 3, C. de officio rectorum prov. Vide Harprecht, ad par. 1 Instit. De Injuriis, No. 98, et seq. item, No. 114, ubi semiplena criminis probatio a calumnia excusat. Vide Tho. Grammat, Decisione 37.
Replied,—That the Bailies of Paislay were very competent judges, because a burgh of regality; as was found in their debate with my Lord Dundonald, where, amongst sundry other privileges, they carried the election of their own magistrates. And though the probation led in that decreet-absolvitor was not sufficient, in law, to fix the guilt of perjury, and prove the same upon Fork, and which they used not for that end, yet it was good enough to assoilyie Fyffe from any action of verbal injury for calling him mensworn; and that the more it was rubbed up, it became the more noysome.
Having got the Lords' answer upon this debate, they remitted it back to the Commissary without any expenses: only recommended him to take care of Fyffe's defences.
