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Scottish Court of Session Decisions >>
Robert Warrand, Postmaster at Inverness, v Hugh Falconer, Merchant in Inverness. [1771] Mor 13933 (19 November 1771)
URL: http://www.bailii.org/scot/cases/ScotCS/1771/Mor3213933-020.html Cite as:
[1771] Mor 13933
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?
Robert Warrand, Postmaster at Inverness, v. Hugh Falconer, Merchant in Inverness
Date: 19 November 1771 Case No. No 20.
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.
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Warrand having had a quarrel with Falconer upon his not having delivered his letters one night when the post had arrived later than usual, and Falconer having, upon that occasion, insulted Warrand, a criminal prosecution was brought against him, in which he was found guilty, and fined in 600 merks.
Before this trial was brought, Falconer, in a letter to the Postmaster-general, made a complaint of Warrand, and stated, “I am a merchant here, who have suffered greatly by the bad behaviour of your deputy; I have the most convincing proof of his keeping up my letters; and have great reason to fear that he may greatly hurt my interest by such practices. It could likewise be proved that he detained letters for ethers in this town; and that he opened and read them.”
The contents of this letter having been communicated to Warrand by the Postmaster-general, he, in order to vindicate himself, brought an action of injury and damages against Falconer; who, in defence, stated, That the letter had not been written with the design of calumniating the pursuer, but had been intended merely as a private piece of information to the Postmaster-general; who, he did not conceive, would have made it public. If he entertained suspicions of the pursuer's conduct in office, he was authorised to give information of them to his superior, that inquiry might be made; and, in the case, 31st December 1708, James contra Watkins, No 5. p. 3432, it was found, That in formation sent to the Commissioners of the Customs, of the misbehaviour of one of their servants, was no foundation for a libel of scandal.
The Lord Ordinary “repelled the defences pleaded for Hugh Falconer the defender; finds the action competent; and ordains the defender to say, Whether he intends to support his accusation of the pursuer in terms of said letter; and in what manner?”
Falconer gave in a petition to the Court; upon advising which, with answers, it was observed upon the Bench, That, in cases of this nature, if information had been given in a cool and decent manner, with a view to the public benefit, and to get an abuse, in a public officer, rectified, the animus injuriandi would not be inferred; and, though the information even had been erroneous, yet if the informer had, upon some probable ground, been misled, no action would lie. The Judges were, however, clear, That no circumstances of that nature occurred in this instance; but that the letter had been written with an injurious intention, more especially as the defender declined to make good his accusation.
The Lords, November 19. 1771, accordingly adhered.
Lord Ordinary, Elliock.For Warrand, A. Murray.For Falconer, Elphinston.Clerk, Pringle.
Fac. Col. No 107. p. 323.
