Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.

John Mowat
v.
Sir Alexander Cumming of Culter

1699. July 1and July 26.

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July 1.—There were mutual complaints given in by Mr John Mowat, and Sir Alexander Cumming of Culter, advocates, wherein they grossly reflected on one another, but particularly Mr Mowat. The occasion was a comprising on the Earl of Seaforth's estate, standing in the name of Bethia Mowat, and Campbell of Barvolen, her husband, whereunto each of them were dealing to acquire a right, which made them charge one another with breach of trust, and buying of pleas, contrary to the Acts of Parliament: and Mr Mowat, in his bills, using rude expressions against Sir Alexander, as that of villanous contrivances, and having ruined Meldrum of Halton, his brother-in-law, &c.; the Lords thought themselves obliged to notice the honour of the Court, to which such bills were offered, and called both to the Inner-House.

It was Argued,—That such verbal injuries mutua compensatione tolluntur, and Sir Alexander had been as bold in his assertions as Mr John: However the Lords found his excess deeper; and, having stated the vote, Punish by deprivation, or suspension, or only reprimand,—the last carried only by one vote: so the whole advocates being called in, the said Mr John got a public rebuke, and all were required to be more discreet and modest in their informations, bills, or pleadings, otherwise they would be more severely dealt with. But, as to the thing itself, and the modus acquirendi, and how fair this purchase was on any hand, the Lords remitted that to the Ordinary on the Bills to try; what they had censured this day, being only the injurious reflections Mr Mowat had inserted in his bills.

Vol. II. Page 56.

July 26.—On the report of the Lord Anstruther, in the mutual reductions pursued betwixt Bethia Mowat and Campbell, her husband, with concourse of Martin, and Sir Alexander Cumming, and Mr John Mowat, advocate, (vid. 1st July 1699;) the Lords found Mr John Mowat's right to that apprising was but a trust, and that, contrary to the Acts of Parliament, he had acquired a right to a depending plea; as also had falsified and broken his trust to Bethia Mowat, for whom he was advocate, in acquiring the right without any warrant from her, or Campbell her husband; therefore reduced his right, and, for example to others not to betray their trust, deprived him of his office; and, calling for the Dean of Faculty, and whole advocates, did intimate his deprivation to them, and required them to look so to the honour and reputation of their employment that the people might have no just cause of complaint against any of them. The Emperor Anastasius, in L. 22. C. Mandati, most justly statutes that no such purchasers shall claim any more than what they paid for the right, describing such cormorants as alienis fortunis inhiantes ac insidiantes; and Justinian, in the very next law, calls it constitutio œquitatis et benevolentiœ plena, and ratifies Anastasius's laws in that point.

Mr Mowat, being heard in his own defence, did allege many circumstances tending to extenuate his fault and vindicate his fame.

Vol. II. Page 64.