Scottish Court of Session Decisions

The pursuer having lodged an amended issue in terms of the order pronounced after the discussion previously reported, the case came before the Court to-day. The pursuer proposed the following issue:—“It being admitted that the defenders prepared, and on or about 26th December 1864 presented, to the Sheriff-Substitute of the County of Fife, at Cupar, a petition containing the words and sentences set forth in the schedule annexed hereto, whether the said words and sentences, or any part thereof, are of and concerning the pursuer, and are false and calumnious, and were maliciously inserted in said petition by the defenders—to the loss, injury, and damage of the pursuer? Damages laid at £200 sterling.” This schedule appended to the issue contained excerpts from the petition. The defenders took exception to this issue on the ground that it did not put also whether the defenders acted “without probable cause.” The pursuer relied on the cases of M'Kellar v. The Duke of Sutherland, 14th January 1859 ( 21 D. 222), and M'Intosh v. Flowerdew, 19th February 1851 ( 13 D. 726), as fixing the form of issue applicable to a case of judicial slander, and in which malice alone was inserted. The defenders, in reply, contended that they as fiscals were entitled to a larger protection in virtue of their office than a mere private litigant.

The Court were of opinion that the pursuer must take the burden of proving that the defenders acted “without probable cause,” and appointed these words to be inserted in the issue proposed after the word “maliciously.”