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Scottish Court of Session Decisions >>
Wilson v Foulis of Ratho. [1684] Mor 354 (16 January 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Mor0100354-020.html
An instance of the duty of an advocate to his client, continuing after the client's death, without any new authority.
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Thomas Wilson bailie in Leith, and Margaret Spence his spouse, against John Foulis now of Ratho, and Mr Thomas Learmont advocate, being reported by Saline; The Lords found, That Mr Thomas Learmont having been advocate for the deceased Ratho, against whom the decreet was put up before his decease, the said decreet being now quarrelled as unwarrantably extracted, that Mr Thomas has interest to propone objections against the said decreet, in order to the rectisication thereof, as procurator for the deceased Ratho, as if the same had been proponed before extracting; though this was to make him an advocate without a client, which are correlata; and to cause his mandate continue, mortuo mandatore, contrary to the principles of law; and to hinder apparent heirs to state themselves the veri et legitimi contradictores to their predecessors creditors. But the Lords thought it a part of an advocate's faithfulness and duty to carry on the process begun, (seeing res no est integra, et mandatum in tali casu morte mandatoris non cessat;) and that he has a rational interest to see that what his dead client was wronged in be rectified, left the fault should afterwards be charged on him; and as the law, § 13. instit. de obligat. quœ ex delicto gives a commodatarius an interest rem vindicare and to prosecute actions, though he be not rei dominus; even so in an advocate.——But quœritur, if he may propone new allegeances not founded on in the defunct's time, or quarrel an act of litiscontestation extracted long before his death; and if he do it, if he ought not periculum alienœ litis suscipere et subire, and be liable as if he were the principal client? This interlocutor was adhered to, upon the 13th March 1681.
Fol. Dic. v. 1. p. 25. Fountainhall, v. 1. p. 260.
