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Scottish Court of Session Decisions >>
Allan v Luke and M'kean. [1679] Mor 371 (16 December 1679)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Mor0100371-013.html Cite as:
[1679] Mor 371
Advocation sustained at the instance of the pursuer of a process, on account of iniquity in the judge.
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Robert Allan having pursued Luke and M'Kean for a parcel of wine delivered by him, by their warrant, to John Guthry in Douglas; for proving whereof, he produced a decreet at the instance of Luke and M'Kean against Guthry, upon that same narrative, before the Commissary of Lanark, decerning him to pay the wine, and relieve them; yet the Commissary of Glasgow would not sustain the decreet, unless Allan proved that the process before the Commissary of Lanark was pursued by Luke or M'Kean, or by their warrant; whereupon Allan raised advocation, at his own instance, before the Commissary of Glasgow, upon iniquity, with a reduction of the Commissary's interlocutor.
The Lords found, That a decreet of the Commissary of Lanark was probative; and that the Commissary of Glasgow should have sustained the same, unless collusion had been positively offered to have been proven by the oath of Luke or M'Kean, or per membra curia, that the whole affair was carried on by Allan, and not by them.
