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.
Walter Gibson v. Mungo Cochran
Date: 19 November 1709
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Walter Gibson, late Provost of Glasgow, gives in a bill to the Lords, that he had consented to Mungo Cochran's being nominated factor on his estate; and at his own sight most of the debts were transacted, and considerable eases given, and the rights taken in Mungo's name for Gibson's behoof; and now Mungo was carrying on a sale of his lands, and refused to communicate the cases to him; which necessitated him to raise a declarator of trust against him and Andrew Gibson his brother, who ingered himself into the management. This had so irritated them, that, in September last, they came to him, when attending his shearers in the fields, with a premeditated design to provoke him; and his brother began to give him scurrilous unsufferable language, to stir him up to beat him; and Mungo, to carry on the plot, aggravated the injury to the highest pin, and wondered how he could sit with such opprobrious affronts. But the petitioner says, he smelt the project: that, if he beat any of them, he might, by the 219th Act 1594, lose his action, and, being on his guard, kept up his hands; which disappointment did so transport them with passion, that they fell in the snare they had laid for him; and, pulling his staff out of his hands, his brother Andrew beat him to the ground, and so had incurred the penalty of the foresaid Act of Parliament, and amitted the plea; the one as actor, and the other as art and part, red and counsel.
Answered,—The matter of fact was wholly misrepresented; for they were versantes in actu licito, having come along with a messenger to assist him in a poinding; which he deforced, and beat them first. They acknowledged that they took his staff from him, and it was not till he had first insulted and invaded them; and therefore craved a conjunct probation.
The Lords allowed either party to prove who was the first aggressor, and the way and manner of the poinding, and resisting it; and what accession Mungo Cochran had; and if there was any previous design to provoke and ensnare Walter Gibson to incur the penalty of the law; seeing malitiis et propositis fraudulentis non est indulgendum.
