Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Robert Paterson, Commissary of Aberdeen, v. Sir Samuel Forbes of Foveran
Date: 26 July 1707
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I reported the complaint Mr Robert Paterson, commissary of Aberdeen, against Sir Samuel Forbes of Foveran; who having unfortunately broke his leg, and employed Andrew Skeen, chirurgeon in Aberdeen, to cure it; and he craving his wages and salary, and they not agreeing on the quota; Skeen pursues him, before the Commissary of Aberdeen, for payment, and obtains a decreet against him for 450 merks; which Foveran attempted twice to suspend, but the bills were refused; whereupon he was forced to make payment, and procured Skeen the chirurgeon's discharge.
Some of the reasons in the bill of suspension carried reflections against Commissary Paterson, viz.:—That Skeen, the pursuer, had capitulated with him as judge, to decern for an exorbitant sum, that he might get a part of it to himself: and that the Commissary said to Skeen, You may kill impune, by applying corrosive plasters to his leg; for we see physicians kill cum privilegio, and the earth covers their faults: Why may we not then fine him soundly, seeing you may kill? Whereupon the Commissary thinking his fame and reputation touched, he put in a petition, craving reparation of the injury done him. And Foveran being thereupon cited, and no formal defence proponed, but only insinuations, that, if need were, they could be proven, though Veritas convitii non excusat; and that it was alleged to be the daily practice, in reasons of advocation and suspension, to charge commissaries and other inferior judges with injustice, partiality, and iniquity in their sentences; and these expressions were never quarrelled, nor made a crime: And to say a party capitulated with a judge to make him sharer, does not import his acquiescence, but only implies the party made such an offer and proposal: and if the judge rejected it, then he is wholly innocent:
The Lords would admit of none of thir excuses, but ordained him to come to the Commissary-court of Aberdeen, and crave him, publicly, pardon, under the penalty of £50 sterling if he failed; also, to pay the Commissary 500 merks for his damages and expenses. Some thought the palinodia and recantation would go ill down; but the Lords made it a part of his censure and punishment.
