A procurator fiscal may pursue for an injury without concourse of the party injured; and if that party disclaim the action, altho' decree he given, that will not hinder the party injured from pursuing before any other competent judge. See Scot against Riddell, No 32, p. 7315.
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There being an advocation of a pursuit before the commissary of Glasgow at Fork's instance for an injury and scandal done to him by Fyfe, in calling him a perjured man, by which he had suffered great prejudice in his calling and reputation, in which pursuit, Fyfe having proponed as a most relevant defence, viz. that it was res hactenus judicata, in so far as the bailies of Paisley had cognosced thereupon in an action pursued at the procurator fiscal's instance, where it was found, that the said perjury was truly proved, and that he was assoilzied; it was answered, that that pursuit was res inter alios acta, Fork not being pursuer, but on the contrary, compearing and disclaiming the pursuit, and therefore might lawfully pursue before the commissary For his own interest, whereupon the procurator fiscal did pursue without his concurrence. The Lords did remit the cause to the commissary of Glasgow, and found, that there was no iniquity committed, seeing where two several judges are competent to a crime, the party injured refusing to concur might make choice of his own judge for reparation of his own damage sustained, which was most proper to the commissary court, and that the procurator fiscal of another court might concur with the party complained upon, or otherwise having no interest but to pursue for a fine upon the public account, could not hinder the party injured to seek reparation before another judge competent.
