An action against a person for scandal is competent before the Court of Session in the first instance.
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A process was brought before the Court of Session by Robert Wilkie, merchant in Aberbrothock, and lately one of the bailies there, against Provost John Wallace, merchant in the same town, libelling, That the defender in May 1762 did fabricate, publish, and propogate a false and scandalous libel against the pursuer; and concluding, that the defender “should be decerned and ordained to make such palinode as the Lords of Session should decree to be just; further, to pay to the pursuer L. 400 Sterling in name of damages and assythment, and to be otherwise censured and punished as the said Lords shall think reasonable.”
As this was merely a verbal injury, which may be by writing as well as by speaking, the defender insisted that the commissary-court was the only proper court for actions of this nature at the first instance; and therefore he declined the Court of Session. I was clear for sustaining this declinator; for though damages for repairing a patrimonial loss come under the jurisdiction of the Court of Session, yet here there is no patrimonial loss specified, and the damages libelled are only for an assythment or in solatium, which with regard to verbal injuries come under the cognizance of the commissary-court, which is declared law by all writers. And there is a good foundation for the distinction; for a verbal injury is a crime only against Christianity and good manners, and therefore is justly confined to the ecclesiastical court. It carried, however, to repel the declinator. The only reason given was, That in several late cases of the same kind, action had been sustained in this Court at the first instance; and that it was now too late to retreat.
Fol. Dic. v. 3. p. 345. Sel. Dec. No 230. p. 305.*** This case is reported in the Faculty Collection.
The magistrates of Aberbrothock intended to set one of their mills to Wallace and company, who had established a manufactory of Osnaburghs in that Place. This scheme was opposed by Bailie Wilkie, a member of Council; and Wallace, in a memorial that he presented to the council, having made use of some expressions injurious to Wilkie's character, and accusing him of selfish and sinistrous intentions, Wilkie sued them for scandal before the Court of Session.
Against this action, Wallace, offered a declinator to the jurisdiction; as actions for scandal were competent, in the first instance, before no other judges but those of the commissary-court.
“The Lords repelled this declinator, and judged the cause themselves.”
