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John and Andrew Mullikens, and their Masters, Supplicants, v John Sharp of Hoddam, and William Copland of Colistoun, and John M'Naught, Bailie of the Regality of Terregles. [1706] Mor 373 (26 June 1706)
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[1706] Mor 373
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[1706] Mor 373
Subject_1 ADVOCATION.
John and Andrew Mullikens, and their Masters, Supplicants, v. John Sharp of Hoddam, and William Copland of Colistoun, and John M'Naught, Bailie of the Regality of Terregles
Date: 26 June 1706 Case No. No 16.
Found to be contempt of authority, to proceed in a process, after the clerk had marked on the margin of the advocation, that it was produced. The clerk's signature is probatio probata of the dependence of the process at the time.
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John and Andrew Mullikens gave in a petition, complaining against Sharp of Hoddam, and Copland of Colistoun, for proceeding to crave a decreet, and John M'Naught, bailie of the regality of Terregles, for decerning in a removing against the complainers, 12th January 1706, notwithstanding of an advocation at their instance, with a subscribed signature upon the margin, bearing that the same was, upon the 19th of May 1705, produced and admitted by the clerk.
Answered: No regard to the marginal signature, which bears not that the advocation was judicially produced; and though it did, could only prejudge the clerk, as being but his own assertion, and not the Judge, or any other body who knew nothing of it. Nor was there any depending process the time the advocation is alleged to have been produced and admitted.
Replied: The marginal signature subscribed by the clerk, is probatio probata, that the advocation was judicially produced in a depending process: Seeing such signatures used not to be subscribed by the Judge, but only by the clerk. And if he has malversed, the judge may pursue him as accords; but being a person of public trust, his judicial signature must make faith, and be probative. Besides, it were dangerous to oblige the complainer, in such a case, to instruct, either that there was a depending process, or that it was a court-day when the advocation was produced; for the pursuers might destroy and abstract their processes; and it would be hard to recover the diets of court from a clerk, where the Judge of the court is concerned, that the thing should not be proved.
The Lords found Hoddam and Colistoun guilty of contempt of their Lordihips authority; and decerned them to pay 100 merks of fine.
