Date of Decision: 25 Feb 1802
Abstract: Defender Andrew Miller purchased the office of Deputy Clerk to the Bills from the Principal Clerks, Sir Robert Anstruther and Thomas Smith. While arranging the purchase, he met with Anstruther’s agent, pursuer Charles Stewart, W.S., who proposed to advance Miller one half of the purchase price in return for two-fifths of the deputy clerk’s fees collected during Miller’s tenure. Unbeknownst to Miller, Stewart was transacting on behalf of an undisclosed principal later revealed to be the son of Sir Robert Anstruther. After Miller assumed his new office, the fee revenues dropped significantly and he was forced to borrow £ 250 from Charles Stewart. Subsequently, the court passed an act of sederunt allowing Miller to exact certain additional fees and apply them “to his use alone.” However, Miller failed to repay Stewart, who brought an action to recover the debt. In response, Miller presented a bill of suspension intended to try whether Mr. Stewart (or his principal) was entitled to 2/5 of the old fees, and whether he could claim any share of the new fees. The case documents contain information on fee revenues, activity levels in the Court of Session, and previous financial arrangements involving deputy clerks.
Subjects: Sale of an Office - Pactum Illicitum

Published Report

Paton's Scotch Appeals, House of Lords, Vols. 1-6 (1726-1821), 4:286

Litigants