Expressions injurious to a third party, uttered by a professor, in a private discourse with a few of his students, found to be actionable.
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Mr Anderson, one of the professors in the university of Glasgow, raised an action before the Commissary of the district, against Mr Richardson, another professor in the same university, libelling, That the defender had, in private, harangued three of the students with false and injurious invectives against the pursuer's character; affirming, in particular, that the latter was “a bad man, and a detestable member of society.”
The Commissary, “as it was not said, or offered to be proved, that any other persons than the three students themselves were present, found, That it would be unbecoming, and of bad example, to call students in that situation as witnesses in a court of law, in order to make them discover, upon oath, the precise terms or tenor of a private admonition given to them by one of their professors; and therefore assoilzied the defender.”
The cause having been brought before the Court by advocation, it was
Pleaded for the defender; A professor, in respect of his pupils, is like a father or a guardian. But ought the admonitions that are given under these relations, in the hours of retirement and confidence, to be made a foundation for actions of damages, such as the present? Still more ‘unbecoming, and of worse example,’ would it be, that the pupils should be made to assume the treacherous character of witnesses against their monitors. This action, therefore, whether considered in itself, or with respect to the mode of proof to which it refers, is equally incompetent. The charge, besides, is not relevant. The expressions in question are plainly such as it may often be necessary to use for the purpose of admonition; and thus the supposition of an animus injuriandi is excluded, it not being alleged that the pretended slander was disseminated. Sir George Mackenzie's Criminals, tit. 30. § 2.; Erskine, b. 4. tit. 4. § 80.; Blackstone, b. 3. chap. 8. § 5.
Answered; If the animus injuriandi can be proved, action should certainly be sustained, though the injury has been done in the course of private admonition, whatever be the relation between him who admonishes, and the person admonished. The expressions libelled, to use the words of Voet, ad tit. D. de injuriis, et fam. libel. § 20. “Per se, et propria significatione contumeliam inferunt; hinc injuriandi animus adfuisse creditur, eique qui illa protulit probatio incumbit, injuriæ faciendæ consilium defuisse.” Nor is it enough that the calumny was not disseminated. Dissemination is not of the essence of defamation; for a person may be defamed, with as bad consequence, to an individual, as to a multitude. If, therefore, the offence itself is actionable, the admissibility of the witnesses mentioned must follow of course.
The Lord Ordinary reported the cause; when it was
Observed on the Bench; The doctrine of the defender is a dangerous one. Slander ought never to be allowed to pass under the disguise of private admonition.
‘The Lords repelled the objections stated against the relevancy of the libel.’
Reporter, Lord Eskgrove.Act. Maclaurin, Ross.Alt. Dean of Faculty, Craig,
Fol. Dic. v. 3. p. 179. Fac. Col. No 333. p. 512.
