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Scottish Court of Session Decisions >>
Earl of Melvill v Earl of Perth. [1693] Mor 355 (10 February 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Mor0100355-021.html Cite as:
[1693] Mor 355
An advocate fined for the malversation of his clerk.
If the pursuer was in the kingdom when the process commenced, his advocate may continue his appearance without a special mandate, though he occasionally be out of the kingdom.
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The Lords having called the action, pursued by the Earl of Melvill against the Earl of Perth, for restoring the composition he received for his forfeiture.——The lords found Mr John Menzies, advocate for Perth, his servant's promise to enrol that cause, and not being done, by his master's discharging him, was equivalent fictione juris to an enrolling, seeing he was in dolo to conceal the not enrolment, and should have discovered it the Earl of Melvill's advocate, that they might not rely on his promise: But the 11th and 12th articles of the act of regulations 1672, being urged, that the Lords could not anticipate causes before they came in by the course of the roll, and discharging clerks to write on these processes; the Lords would not go over the act of Parliament, nor force the Earl of Perth to answer hoc ordine: But, in regard to fraudulent dealing, they fined Mr John Menzies, the advocate, in five pounds Sterling to the poor; and James Callander, his man, was debarred the Session-house, and committed to prison during the Lords pleasure.
1693. December 7. In the case Melvill against Perth, the Lords repelled Perth's dilator, that Melvill, the pursuer, was out of the kingdom, and there was no factory from him, seeing he was here at the first intenting, and calling of the process; and a mandate was only requisite for strangers, or such as were absent animo remanendi.
Fol. Dic. v. 1. p. 25. Fountainhall, v. 1. p. 558. 576.
