Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Cairns v. Patrick Thomson
Date: 26 January 1697
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Mersington reported Robert Cairns, wright, against Patrick Thomson, late deacon of that trade: it being a suspension of a decreet of the Commissaries of Edinburgh, decerning Patrick to crave Robert Cairns's pardon in a public meeting of the trades in the Magdalen Chapel, in regard he had there publicly called him a rabler and a robber; and likewise decerned him, beside the palinodia and recantation, to pay £100 of expenses. The reasons were, That what he said was after provocation,—Cairns having called him unmannerly, and since that time having given him atrocious language;—in which case lawyers say, That such injuries and offences, as well as the penalties following thereon, invicem compensantur. 2do. They were not uttered animo et libídine injuriandi, but ex justo dolore;—and, l. 3, sect. 1, D. de Injur. Provocatus ad iram non proprie committit injuriam. 3tio. The calling one a rabler is of late but reputed a sport; et qui per jocum quid facit injuriarum non tenetur. See Decius ad l. 48, D. de Reg. Jur. Besides, he immediately retracted what he had said; and Tiraquil. de Pœnis Temperandis, cas. 28 et 60. numb. 2, allows three days for such retractations.
Cairns, the charger, opponed the probation in his decreet, which evidently proved animum injuriandi on his part, and took off these topics of jocus, ira, et justus dolor.
The Lords adhered to the Commissaries' decreet, and found the letters orderly proceeded; but, finding there was much pique and humour on both sides, they ordered the charger to give in twenty merks of his expenses to the poor.
