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Scottish Court of Session Decisions >>
John Hawthorn and Others, v James Fraser. [1799] Mor 31_1 (14 December 1799)
URL: http://www.bailii.org/scot/cases/ScotCS/1799/Mor31PUBLICOFFICER-001.html Cite as:
[1799] Mor 31_1
A Sheriff or Commissary-clerk-depute cannot act as Procurator before the Sheriff-court or Commissary-court.
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John Hawthorn, and two other procurators before the Sheriff and Commissary-courts of Wigton, presented a petition and complaint against James Fraser, for having, contrary to the act of sederunt, 6th March 1783, acted as procurator before these courts, while he held the offices of depute-clerk before both, and having availed himself of this situation to the prejudice of the opposite litigants.
Fraser stated, that he had resigned the office of depute Sheriff-clerk before the complaint was presented, and had since given up acting as procurator before the Commissary-court. He denied the other ground of charge against him.
“The Lords having advised the petition and complaint, with the answers thereto, replies and duplies, find, That the respondent did wrong in acting for a time both as deputy Sheriff-clerk and as a procurator before the Sheriff-court, and in acting both as deputy-clerk and procurator before the Commissary-court of the district, and prohibit and discharge him from doing so in time to come: But, in respect that he had resigned the office of depute Sheriff-clerk before this complaint was exhibited against him, and has since also given up acting as a procurator before the Commissary-court, find, That the present complaint was so far unnecessary, or is now superseded: And in respect that any complaint against him for malversation in office, whether as a procurator, or as a deputy Sheriff-clerk, or Commissary-clerk, ought rather to have been made to these courts in the first instance than to the Supreme Court, find the complainers not entitled to expences; but recommend to the Sheriff-depute of the county, and to the Commissary of the bounds, respectively, to inquire into the situation of the above-mentioned offices, and into the conduct of those acting as the Sheriff or Commissary-clerks, whether principal or deputies, particularly in the view of Obliging the principals either to officiate themselves, or to provide other qualified persons to act for them as their deputies, with adequate allowances for so doing; and likewise into the conduct of Mr. Fraser as a practitioner, and how far he has been guilty of any malversation or breach of duty, either in one capacity or another, in case of any charge being made against him by the Procurator-fiscal or others, and to proceed as he shall find just and fit in the circumstances of the case.”
Act. Rae.Alt. Hay.Clerk, Pringle.
Fac. Coll. No. 149. p. 334.
