Scottish Court of Session Decisions

Subject_1 ADVOCATE.

Moodie and Others,
v.
Sir John Henderson and Others

Date: 9 December 1800
Case No. No 30.

Relative to the extent of freedom of speech, to which Counsel are entitled.

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In this case, which was an action of wrongous imprisonment, oppression, and damages; Sir John Henderson, one of the defenders, having been cited as a haver, emitted a deposition, upon which the opening counsel, for the pursuers, made some animadversions: In consequence of which, Sir John, who was present, used expressions, which gave occasion to the following deliverance of the Court:—

“The Lords having, upon the suggestion of the Lord President, and upon a motion from the Lord Advocate, as Dean of the Faculty of Advocates, taken into consideration what passed at the bar yesterday, at the conclusion of the pleading in the conjoined actions at the instance of James Moodie and others, against Sir John Henderson and others: Find, that words used at the bar by Sir John Henderson, which implied a challenge to Mr Hope, or tended to provoke him to give such challenge to Sir John Henderson, were highly improper; and call upon the Court to show their disapprobation thereof; and, therefore, they ordain the said Sir John Henderson to be censured from the chair: Find, that the words, used by Mr Hope, importing that he would betray the duty of his profession, if he accepted a challenge for any thing said in his official capacity, as a counsel at this bar, were proper and commendable; and, in regard to the allegations by Sir John Henderson, that Mr Hope used improper expressions, or made an ill-founded attack upon him, in his pleadings at the bar, supersede the consideration thereof until the cause come to be advised.”

In consequence of this reservation, the Court, when they pronounced judgement in the principal cause, resumed consideration of the above matter; and the following was their interlocutor:

“The Lords of Council and Session having, in terms of the reservation contained in their interlocutor, of date 28th November last, resumed consideration of the subject-matter therein alluded to; and having particularly attended to the depositions of Sir John Henderson, baronet, a haver called upon to produce writings, Find no sufficient ground for imputing to him any intentional variation from the truth in these depositions, the Court being satisfied, that the statements therein-contained, were agreeable, to the best of his knowledge and recollection, at the time: Find also that Mr Hope, pleading as a counsel at the bar for the adverse party in the cause, had a right to comment, with freedom, upon these depositions, as well as upon every part of the evidence, and upon the conduct of the parties against whom he was pleading, in all matters pertinent to the cause: Find, that neither Mr Hope, nor any of the other counsel in the cause, are liable to censure for the mode in which the pleadings were conducted, or for any expressions used by them in the warmth of pleading; and that no party concerned has any just ground of complaint against them upon that account.”

See M'Kenzie against Marquis of Montrose, Fountainhall, v. 1. p. 550. as to a pension to an advocate, under Personal and Transmissble.

The trials of advocates are regulated by the following acts of sederunt:

6th July 1688, p. 181. edit. 1790.—24th November 1691, p. 195.—28th February 1750, p. 450.—21st February 1650, p. 69.—28th November 1661, p. 80.—15th January 1704, p. 222.

The Acts of Sederunt relative to the dues of entry, are the following:

28th February 1662, p. 83. At this time the dues of entry were twenty merks for an advocate; and ten merks for an expectant.

7th February 1679, p. 141. The Faculty had, by their own act, raised the dues to 500 merks Scots. — The Lords, by this act of sederunt, refuse to confirm the act of the Faculty, and recommend a voluntary contribution to intrants.

18th January 1684, p. 158. By this act the Lords confirm a resolution of the Faculty, fixing the dues at 500 merks Scots for intrants in the ordinary way by examination; and at 1000 merks Scots for intrants by bill, without examination.

29th June 1762, p. 532. The dues raised to L. 60 Sterling.

6th December 1769, p. 570. Raised to L. 80 Sterling.

11th March 1784, p. 609. Raised to L. 100 Sterling.

8th July 1790, p. 643. Raised to L. 150 Sterling.

The act of regulation 1695, p. 215. contains the following clauses respecting fees:

§ 29. “That notwithstanding of the regulation formerly made of advocates fees, in the act of Parliament 1672, yet to the effect the said regulation may be better observed in time coming; that the saids fees be regulate according to the quality of the persons who shall employ them, in manner following, viz. That for one consultation, as is therein defined, a nobleman shall not give more to an advocate than nine dollars, or two guineas at the most; that a baron or knight shall not give more than seven dollars, or one guinea and a half at most; that any other gentleman, or chief burgess, shall not give more than four dollars, or one guinea at most; and that all the rest of the lieges, or any other person, shall not give more than three dollars at most. And further, That there shall not be above three advocates called to the consulting the drawing of the information, after dispute, to the Lords; and that to the advocate that draws the same (of these three) may be given a full fee, according to the foresaid regulation; and to the other two, the half thereof, and no more.”

§ 30. “That in all processes before the Session, it shall be lawful to any of the parties, in any step of the process, to object against the other, that he, either by himself, or some other for him, hath given, or promised to one or other of his advocates, or to some other person, directly or indirectly, for the advocate's behoof, more than is allowed by the foresaid regulation. And in this case, if the party confess, or be holden as confessed, then he shall be immediately fined by the sentence of the Lords, in L. 1000 Scots, whereof 1000 merks to be paid to the party objector, and 500 merks to the poor's box. And that letters on a simple charge of six days, and other executorials necessary, be direct for payment thereof. And further, if the party discovered to be guilty, as said is, shall happen to be the pursuer, then the process shall stop until the foresaid fine be paid, as said is, without prejudice of the foresaid execution, for the same. And in case the advocate, alleged to have received more than the said regulation, shall not, after the giver's consessing, or being holden as consest, purge himself by his oath, in the terms above set down, that he has received no more, then he shall be fined in the quadruple of the fee allowed to him by the regulation, and transgressed, as said is, to be paid into the poor's box. And further, the said advocate transgressing, not purging himself as said is, shall be debarred from the exercise of his employment for the space of three months of session time, without counting the time of vacation.”

The clause above alluded to, of the act of Parliament 1672, p. 485. v. 2. is as follows:

§ 27. “That the allowance of advocates in time coming, be regulate according to the quality of the persons who employ them, in manner following, viz. That for every consultation, pleading thereupon, and drawing bills upon any interlocutor thereanent, altogether there be given at most to any advocate, by noblemen L. 18, by knights and baronets L. 15, by gentlemen and chief burgesses L. 12, and by all the rest of the people L. 9. And that nothing be allowed for drawing informations to be given to the Lords after dispute, but to one advocate only, and that the allowance therefor be only the half of what is allowed for the consultation.”

By act of sederunt, 7th June 1677, p. 132. it is provided, That if any advocate, on account of personal prejudice, or any other pretence, shall refuse to consult or concur in the capacity of an advocate, with others whom the Lords authorise to be advocates, he shall be removed from his employment. This was in pursuance of a letter from the King to the Lords, dated 24th May 1676, recorded in the books of sederunt, 20th June following, p. 124.

By act of sederunt, 11th January 1604, p. 36. fifteen advocates are appointed for the Inner-house; and any party, who employs any of them in a cause depending in the Outer-house, is ordained to provide, at the same time, another advocate, who is not one of these fifteen, and who may be ready to debate the cause in the Outer-house, if the other advocate be engaged in the Inner-house.

By act of sederunt, 23d February 1687, p. 176. one servant of each advocate is entitled to the privileges of a member of the College of Justice.

By the King's letter, 17th June 1674, p. 113. no advocate shall presume to advise or suggest any thing that expresses or imports the charging any sentence of the Lords with injustice, in any manner of way, either publicly in the exercise of his function, or privately in conversation with his clients, or others.

By the King's letter, 20th June 1676, p. 124. the advocates, and others of the College of Justice, shall be ordered and ruled by the Lords in all things relative to their employments.

By the acts 11th January 1604, p. 36. and 24th June 1643, p. 53. advocates shall not lose time in idle discourses to the prejudice of other parties, nor interrupt one another, or the judges.

By the regulations 1695, § 23d, p. 214. the Lords shall, if they find any bill to be groundless, or in its length superfluous and litigious, fine the advocate subscriber, and party, in such pecuniary mulct, as they shall judge reasonable.

By act, 9th July 1709, p. 232. it is ordained, That advocates be careful that the papers put into the boxes be drawn with decent and respectful expressions towards the Judges and parties; and any advocate transgressing, shall be debarred the house during that session, when he transgresses, and otherwise punished, aocording to his offence.

By act 19th December 1710, p. 241. all petitions, answers, and informations, given in to the boxes, whether in print or writing, shall have an advocate's name thereto subjoined, who shall be looked upon as the drawer thereof, and likewise liable to the censures in the 23d article of the regulations 1695, above-mentioned.

By act, 15th June 1738, p. 315. whatever paper is signed by a lawyer, is understood to be the deed of that lawyer, and he is to be held to rest his character upon what is therein advanced.

By act, 21st December 1649, p. 60. an advocate is deprived for buying pleas.

By act, 26th July 1699, p. 220. an advocate having taken right from a trustee, without consent of the constituent, is deprived, but thereafter reponed.

By act, 17th December 1708, p. 227. an advocate is suspended for unbecoming expressions.

By act, 23d June 1756, p. 496. an advocate is suspended for contempt of authority.

*** Since the case No 4. of this Title was printed, it has been discovered that a copy of Auchinleck's MS. Decisions, was lately purchased, for the Advocates Library, at an auction. The Editor has examined it; he finds that No 4. copied from Lord Kames, is precisely in Auchinleck's words, p. 211. of the MS. voce Witness.

Auchinleck reports, No. 6. Paterson against Alexander, (the date the same as in Durie) as follows:

Cornelius Paterson, a stranger, being made prize by Captain Alexander, intents reduction of the admiral's decreet, whereby his ship and goods were decerned prize. The pursuer being absent himself out of the country, it was alleged no pursuit can be sustained, at the stranger's instance, unless his procuratory were produce.——— The Lords sustained the pursuit; his advocate finding caution to produce a procuratory before litiscontestation.

Fol. Dic. v. 1. p. 25. Auchinleck, MS. (Stranger) p. 193.