Scottish Court of Session Decisions

Subject_1 ADVOCATE.

Betson
v.
L Grange.

Date: 14 November 1628
Case No. No 5.

In an exhibition of writs, an advocate was obliged to depone as a witness, as to the defender's haying the writs, although he was the defender's counsel in the cause.

Click here to view a pdf copy of this documet : PDF Copy

In an action of exhibition of writs, Betson contra L. of Grange, the Lords found, That the advocate compearing for the defender, in that same cause, might be used by the pursuer, as witness to prove the summons, anent the defender's having of these writs libelled, and that they ought to depone thereupon, and that it was no competent objection to repel them a testimonio, that the defender was their client, cui patrocinabantur in hoc eadem causa, against whom they could not be compelled to bear witness, in that which their client had communicated to them in secret, and thereby to publish against him, and to his prejudice, that which was either spoken, or shown to them under trust, which, if they should be subject to do, by compelling them to depone upon their oaths as witnesses, they could not but incur a great suspicion of prevarication. And it was desired, that the Lords would, consider the consequence and preparative thereof, which tends to force advocates to detect the secrets of their client's cause; which allegeance was repelled, and found, that they ought to be witness; in doing whereof, the Lords found, that thereby they incurred no suspicion of prevarication; for though they were not holden to detect the secrets of the cause intrusted to them, which is to be understood, anent the counsel and advice given by them to the client, for the best and most lawful means of his defence, and prosecuting of his cause; yet that thereby they could not be freed, of being witness upon any thing libelled, and admitted to probation, against their clients, being found relevant by the judge, consisting in their knowledge, and whereof possibly there was no other means of probation but by them.

Act. Nicolson & Lermonth. Alt. Aiton. Clerk, Hay. Fol. Dic. v. 1. p. 25. Durie, p. 396.