Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Patrick Oliphant v. Sir Jo Fletcher, the King's Advocate.
Date: 20 July 1664
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Sir Jo. Fletcher, his Majesty's advocate, being accused by Mr. Patrick Oliphant, by permission from his Majesty, before the Secret Council, upon misdemeanours and deeds of prevarication committed by him the time of the late Parliament: which was an extraordinary case, founded upon no law written nor consuetude: and this process had its foundation in the civil law, T. D. De prævaricatoribus: where, amongst other pretty debates, this was one, if an advocate, or any other, might be accused of prevarication, sine quærela partis læsce, and that this was rather an inquisition after crimes not known than an accusation, which is not allowed in law against any without some party were lesed. Clarus, parage ult. Quæst. 3. distinguishes betwixt an accusation and an inquisition, and asserts that they cannot stand together; item, that there is inquisitio delicti et delinquentis; inquisitions after delicts are not allowed, sine quærela partis; inquisitions after delinquents are not sustained but where the delict is constant. So Clarus, Quest. 4. Lib. 5. Pract. Grim. Then there is no inquisition after delinquents, but only in delictis facti permanentis, as homicide: but in delictis facti transeuntis, as is prevarication, there ought to be no inquisition sine quæpartis læsæ. It was subsumed, that this kind of process of prevarication against the Advocate, could not be pursued by Mr. Patrick, unless some party wronged by the Advocate were complaining, and concurring with him in the pursuit; otherwise it should be inquisitio judicis in delictis facti transeuntis sine quæpartis, which is allowed by no lawyer. The greatest part of the deeds of prevarication ran upon his taking from pannels accused by himself for treason, pendente lite. Against thir particulars, alleged, The simple taking was no crime, unless it were libelled intuitu of the process, and to desert the diet; and though the diet did desert after his taking, yet it could not be presumed to have been done ut a lite discederet, unless it were proven; for it was affirmed, that an advocate might take from a defender (whom he is pursuing,) to be for him in other causes, so as he be faithful to the pursuer in that one particular cause.
Alleged farther,—Quidam actus sunt simpliciter mali, et ex nulla circumstantia boni, as adultery: alii simpliciter mali, sed ex circumstantia aliqua boni, as homicide upon self-defence. Quidam
sed ex circumstantiis boni vel mali, as donatio facta a reo advocato partis adversæ.
This was a most malicious pursuit, and came never to a decision.
Advocates' MS. folio 53.
I procured another Civil Register of Decreets, beginning the 20th of January 1665, and ending the 18th of February 1665.
