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Scottish Court of Session Decisions >>
David Forbes v Sir Alexander Forbes. [1685] 3 Brn 538 (19 February 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Brn030538-0813.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 19 February 1685
David Forbes v. Sir Alexander Forbes
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The mutual complaints between Mr David Forbes, advocate, and Sir Alexander Forbes of Tolquhon, are advised. Mr David Alleged,—That Tolquhon had offered to tash his reputation, by venting, that he had fraudulently given back a bond which Tolquhon had of Arthur Udney's. Tolquhon complained, That he had given him railing and indiscreet language, and said, he had rather see Tolquhon hanged than his own reputation to be stained; and that the privilege of advocates' gowns ought not to be a shelter and sanctuary under which they should be tolerated to abuse gentlemen. Mr David answered, Vim vi repellere licet; and what he had said was in his own defence, and so could not excuse Tolquhon who was the first provoker and aggressor: and Law says, In provocato abest animus injuriandi, et ignoscendum est ei qui voluit se ulcisci provocatus, I. 14, § 6. D. de Bonis Libertor.; et crudelis est qui famam negligit; nam difficile in tali casu est justum animi dolorem compescere.
Yet the Lords found Mr David's carriage alleviated Tolquhon's injury and offence very much; and therefore only reprimanded Tolquhon, and fined him in £100 Scots; with certification, if he paid it not that day, he should be liable in the double; like the Roman actions, quæ inficiando crescunt. The highest vote stated was only £200 or £100 Scots.
