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?
Elizabeth Chalmers v. Helen Douglas
Date: 22 February 1785 Case No. No 25.
How far, in a civil action of damages, the maxim, quod Veritas convicii non excusat, is to be received?
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This being an action of damages, raised on the ground of the defender's having defamed the pursuer, the veritas convicii was urged in defence; and the Commissaries having found that plea to be irrelevant, their sentence was brought under review of the Court by bill of advocation.
Pleaded for the defender, The maxim, that veritas convicii non excusat a calumnia, may indeed be received in public or penal prosecutions, but to civil actions for damages it is not applicable. In regard to the former, that breach of public peace which is the subject of judicial cognisance, may be equally committed by reproach, whether true or false, though still being a crime, the animus injuriandi is essential to it, L. 18. D. De Injur. Voet. ad eund tit. § 9.; Mackenzie, Tit. Of Injuries; Bankton, B. 1. Tit. 10. § 31. 34.; Erskine, B. 4. Tit. 4. § 42. But, surely, that damage to an individual character, which civil actions are intended to repair or compensate, cannot be produced by a faithful description of the character itself, which, however, is implied in the veritas convicii. In such a case, how absurd would it be to require a palinode? Berlich. Conclus. 62. § 23. This distinction is established in the practice of the Commissary Court, as confirmed by the Supreme Court, and has been exemplified in many late cases, such as, those of Ramsay contra Jarvie;* of Fife;* of Turner contra Watson;* and of Oliphant contra Macniel.* By the law of England, where such actions of damages are much more frequent than in this country, to which law Lord Stair, B. 1. Tit. 9. § 4. has, on this head, referred, as worthy to be adopted, the point is invariably fixed, Blackstone, B. 3. Ch. 8. § 5.; B. 4. Ch. 11. § 13.; 5 Rep. 125.; Hol. 253. 1.; Danv. 162.; 3 Salk.
Answered, That the above maxim of our law, which is confessedly admitted in criminal actions, should be rejected in matters of civil jurisdiction, has not been proved by the authorities quoted, and does not seem warranted by reason. To recal from oblivion the story of a person's failings, may be to involve him in misfortune and ruin; and could it then be said that he had sustained no damage? It is natural surely to question the right of the aggressor to produce so great a calamity. When one's own safety, indeed, or the benefit of the public, requires it, such an accusation may be preferred with impunity; for there the immediate result is salutary, as the motive is right; but if the purpose be to hurt and injure, the only effect which proceeds from it is immoral and unlawful; and if damage has arisen to one party from the unlawful acting of another, the law will award reparation; so that the distinction supposed seems to have no foundation in reason. As to the observation about palinodes, it has proceeded from the erroneous idea, that without this no other reparation could be obtained.
The Lord Ordinary refused the bill of advocation.
The general opinion of the Court seemed to be, that in a civil action the proof of veritas convicii may be admitted, in order to alleviate the award of damages.
The judgment on this point was the following:
“In respect the libel before the Commissaries contains a conclusion for a palinode, and for a sum of money in the name of damages to the private prosecutor; find the defence offered of veritas convicii competent in this cause to exculpate or alleviate.”
Afterwards, on advising a special condescendence, exhibited by the defender, which set forth facts alleged to have happened at the distance of about thirty years, the Court adopted the following rule, that, in hoc statu, such particulars only should be admitted to probation, as clearly involved guilt; it being deemed unjust, while no real criminality had been established, to tarnish the character of a party, by a proof of trifling or equivocal incidents, though these might eventually be received to fill up the measure of evidence. Some difficulty, likewise, occurred with respect to the specification of the times assigned to the different acts charged against the pursuer.
The interlocutor of the Court was, to remit the cause to the Commissaries, with the instruction, to allow a proof of the direct and specifical charges of an
* Not reported.—See Appendix.
important nature, contained in the condescendence; limited however thus, that the evidence of each fact was to he confined to the particular year condescended on relative to it, and to a particular month in that year, with the addition of the two preceding, and the two subsequent months.
Lord Ordinary, Braxfield.Act. Lord Advocate, et alii.Alt. Crosbie, et alii.Clerk, Home.
Fol. Dic. v. 4. p. 231. Fac. Col. No 200. p. 313.