Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER HOME, CLERK OF SESSION.

The Procurator-Fiscal of the Commissary Court of Kelso,
v.
William Chatto, Saddler there

Date: 11 February 1737

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William Chatto having uttered some scurrilous expressions, such as thief, whore, &c. against James Barie and his wife; they, with concourse of the said Procurator-Fiscal, brought a process against him therefore before the Commissary of Kelso: who, upon the fact's being proved, decerned the defender to make an acknowledgment of his fault before the congregation, as the form is in such cases; and likewise to make payment of L50 Scots, the one half to the party injured, the other to the Fiscal, for the use of the poor. Who having charged for the L25 Scots payable to himself, Chatto suspended the same upon the following grounds.

First, Because the decreet was in absence, the suspender having been in England during the dependence of the process; and although a procurator appeared for him who denied the libel, yet the same was altogther ultroneous, he having given no mandate or order to the Procurator for that effect. 2dly, In this case there was no injury committed; nothing but a few idle words having dropt from him, ex colore iracundiæ, without any animus injuriandi, which, in verbal injuries, ought to be plainly proved. 3dly, Six clays after committing the offence, the private parties injured disclaimed all process of scandal, either at their own or at the Fiscal's instance, against the suspender; as appears from the disclamation now produced. 4thly, The Fiscal could not, after the private parties had remitted the injury, per se, insist ad vindictam publicam; seeing, from the nature of his office, he had no power to prosecute private delicts, being only a Procurator appointed originally by the Bishop to take care of confirmations and quots of testaments.

To the first reason of suspension, it was Answered,—That a regular execution was produced before the inferior court against William Chatto; after which, a Procurator appeared for him, who denied the libel; in consequence whereof, several diets were appointed for examining the witnesses: so that neither Judge nor Fiscal hastened matters, in order to take any undue advantage. 2dly, The expressions libelled were very injurious ; consequently, it was no ways material whether they were spoken in a passion or not. And as to the design of injuring, that can only appear from the expressions. Neither is there any necessity of proving the animus injuriandi, where the words used can bear no other meaning. With respect to the third, the private parties injured appeared in Court personally several times, supplicating for justice ; so that, although the disclamation bears date before the commencement of the process, yet that can afford no reason of suspension, as it was not produced nor pled upon before the inferior Judge. 4thly, Granting the disclamation were to have its full force, or that the private parties had appeared personally before the Commissary, and judicially disclaimed the process ; still that could not have barred the Fiscal from insisting; seeing, as vindictor publicus, he has an interest to prosecute crimes without the concurrence of the private party. And, as the Commissaries are vested with a power of punishing scandalous expressions, there is no reason why the Fiscal should not have such fines, as a perquisite of his office; though, in the present question, the sum charged for is only applicable to the use of the poor.

The Lords suspended the letters simpliciter..

No. 52. page 87.