Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 REPARATION.
Subject_3 Where one wrote a private letter, accusing an inferior postmaster, to his superior, of malversation in office, the same held to be an injurious libel, and actionable, - the accuser having declined to make good his charge.

Robert Warrand
v.
Hugh Falconer

Date: 19 November 1771

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[Faculty Collection, V. 323; Dictionary, 13,933.]

Coalston. I cannot justify the conduct of Falconer, but I doubt as to the ground of action. In order to constitute a libellus famosus, there must be animus injuriandi and a publication. Supposing there was here an animus injuriandi, there is no publication, only a private information.

President. I do not blame an information, nor do I require a full legal proof of it. But there was here private malice only, and no purpose of promoting the public good. The defender declines giving any account of his reasons for bringing so severe a charge. He does not even say that he ever heard from any one person that letters had been at any time opened at the post-house.

Pitfour. There was more of private resentment than public spirit in this information. I would not discourage information in a discreet way. I will consider the act, not the intention. The interlocutor does no more than require a condescendence. If he can condescend on nothing, he is without excuse.

Gardenston. The case of James is not in point: There it appears that the commissioners of the revenue had already judged upon the information, and this Court would do nothing which seemed to tend to a review of their judgment.

Justice-Clerk. It is impossible that a charge of this nature could be kept secret. It must have been published by the postmaster-general, else to what purpose was it brought?

Monboddo. This was not a libellus famosus, but an accusation to be supported some way or other. If the defender will do nothing to support it, we must hold it to be calumnious.

On the 19th November 1771, “the Lords found the action competent, and ordains the defender to say whether he means to support his accusation, and by what evidence:” adhering to Lord Elliock's interlocutor.

Act. H. Dundas. Alt. A. Elphinstone.