Selected quad for the lemma: cause_n
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B06366
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Unto his Grace their Majesties High Commissioner and the right honourable the Estates of Parliament information for Alexander Monro of Bear-Crofts.
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Monroe, Alexander, fl. 1691.
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1691
(1691)
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Wing U100E; ESTC R185883
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16,879
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12
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adventure upon it and likewayes by what the defenders and the Viscount of Tarbet in their Prints did at this very time threaten the pursuer with on the account of this very action Which albeit the claim of Right does expresly authorize and that the Parliament has sustained the same upon the grounds pleaded by the pursuer yet he is threatned to be Arraigned as one guilty of high crimes 6to That there was nothing clearer from the points of Law opinion of Doctors the practice of Nations and the very customes and Laws of Scotland then that Subjects may be overawed and concussed by those in Authority and that even by the King himself and for verefying whereof did adduce whole Schools of renouned Lawyers of great credit in all Christian Courts And particularly adduced not only the case of the lady Graves concussion by Lauderdail but likewayes the concussion of the Earl of Mortoun by K Ja 5th The concussion of Bramford by the then Government and the concussion of all these who in the late Government transacted for their Estates liferents or joynturs who were all of them restored against the Transactions and deeds they were over awed into so that as the Pursuer had an undoubted Right it is most palpable he was turned out of the same by concussion and against which albeit it be notarly known he did violently reclaime yet ex superabundante he has sufficiently proven the same by severals of the then Lords of Session and other Gentlemen beyond exception so that his accepting of the 7000 m can never be sustained in Law as an act of homologation or freedome of election and will in the said pursuer The commissions interloquitor upon the said debate was in the express termes following Viz. Edinburgh 5. December 1690. The Commision appointed for fines and forfaulturs after full and deliberate advising of the above mentioned debate are of opinion that the pursuer had a legall Tittle to his office And was put from the same by concussion Reserving to the defenders to be heard upon the Acts of the pursuers alleadged Homologation Therafter the cause being again called upon the 9. of March 1691 the Defenders urged the grounds following for inferring an homologation by the pursuer of the Lords proceedings upon the Kings letter against him viz. 1mo That he acquiesced without any Reclaiming 2do That he accepted of the 7000 merks modified and gave a discharge thereof and renounced the office and that neither law nor practice can be abduced for derogating any thing from the sufficiencie of the forsaid Acts of homologation So that Esto the pursuer had been concussed the saids Acts of homologation utterly debarrs him from restitution 3tio The pursuer did exerce an other imployment of an advocat which is inconsistent with that of being a Clerk It was answered for the pursuer 1mo That he oppones the Testimonies of severals of the Lords of Session Clerks and others upon his positive and axpress Reciaiming both the time of turning him out and ever since 2do That the turning the Purfuer out of his Office the way and manner proven being an Act of manifest Goncussion according to the principles of Law and the practice of This and other Nations And that the Lords of the Commission has now found the same to have been an act of concussion It is an other consequential principle therefrom that so long as the cause of concussion and aw that was upon the pursuer the time of his being turned out did last that what ever he did medio tempore in pursuance of or complyance with what was absolutly enjoyned and commanded can import no act of homologation as being in Law no more but the effect of the same original Aw and an act of necessity and not of free election choice as is notarly held by the whole world of forraign Lawyers And as the famous Mascard who cites the opinion of the Lawyers in the case of the Bishop of Placentium his being metu regio turned out of his Bishoprick for that of Ostia shews That albeit he had not only renounced that of Placentium but likeways possesed Ostea for five years yet after the Emperours death he is reponed against his said renounciation upon the above mentioned ground expresly Viz. That during the Emperours life who commanded him out of his benefice Durabat causa metus So that his renounciation and all that he did in complyance with the Emperors command was the effect of his dread and aw of the Emperour So likewayes is it practised in Scotland according to the learned Durie in his decesions 27 June 1632. Gassie against Fleeming where a wife is restored against her consenting to her husbands alienation of her joyntur lands because that she having proven that her Husband had overawed her some time before and was yet on life the time of her consenting for the ground debated was that during her Husbands life Durabat subsistebat eadem causa metus Likeas upon the 21 Jully the said year The Lords declare in the paraleal case that they will decide the same as they did the former case of Cassie Fleeming Thereby establishing it as a principle that while the cause and motive of Aw and Fear continues the aw it self and dread alwayes lasts And upon which established and uncontraverted principles in Law and Reason it is that by the claim of Right and act of Parliament rescinding Fines and forfaulturs the Leiges are restord against whatever transactions they made in reference to the saids Fines and forefaulturs during the late Government as accordingly the Commission has decided already in the case of Humer his accepting of a new Tack from the Lord Yester That it could not prejudge him of the benefite of his former standing tack And therefore the pursuer his accepting discharging of the 7000 Merks renouncing the office in favours of Haystoun who by the Lords arbitration was wrongously thrust upon the pursuers Right can be no act of Homologation no more than the Lady Gray her giving a disposition of her Estate for a Summ of money to Lauderdail after she was thrust out of the possession And it is well known that notwithstanding thereof she was restored against the same 3tio It is nonsence to pretend that the pursuer exerceing as an Advocat after his being debarred was a Homologation of his debarring because the Officiating as an Advocat is inconsistent with the office of a Clerk For it is obvious that the pursuer his being altogether idle is as inconsistant with the station of an Officiating Clerk But this merits no answer And it is not true Replyed for the Defenders 1mo That the case of a wifes being overawed by her Husband observed by Durie has no Annallogie with the Pursuers case that being ex capite metus and the pursuers case upon the head of concussion 2do That the ground of the Pursuers pretended Aw and Fear in this case being the Lords of Sessions
sentence turning him out It is uncontraverted That if any of the Liedges comply with the Lords of Sessions sentence or decreet in any case by payment making conform or giving Obedience thereto Yea by the very extracting of the decreet the same is so farr a Homologation of the sentence that the partie cannot be heard to reclaim 3tio That in this case there was no Legal Compusitor at all competent against the pursuer for causing him accept of the 7000. merks so that his acceptance thereof and giving renounciation were voluntarie and spontaneous deeds Duplied for the Pursuer to the first That it was an absurd mistake in point of Law To suppose a distinction or difference betwixt the acts of Homologation of a factum meticulesum ex metu maritali and a factum meticulosum ex concussione for metus is alwayes the medium in both cases only that in concussion the metus is inferred by a person in publick Authority And in the other case by a person usurping or too far extending a private Authority and the indureance of the Fear is in both cases commensurate by the continuance and lasting of the cause and motive of it And as to deeds of Homologation and nature of the action of Restitution arising to the partie Laesed in either cases The principles in Law are indivisibly the same as appears by what is learnedy Debated by Durie from the Texts in Law and Doctors in the forecited case agreeing in every point with all that has been debated for the Pursuer To the Second That 1mo It is simpliciter denyed that the giving Obedience to the Lords decreet when there is no remedie competent for reclaiming against the same can inferr a Homologation as the Lords themselves found in the case of Mrs. Dowglas and the Children of Monswal against the Duke of Queensberrie 2do That in this case of the Pursuer it is utterly denyed there was any thing of a Legal sentence upon a lybel or hearing of the Pursuer upon his interest but allanerly a summar and executive act or Ordinance of the Lords in pursuance of the Kings pleasure against which there was no Remedie by Reclaiming without the hazard of being counted seditions and punished as an impugner of the Kings pleasure Which how dangerous is left to your Lordships to judge Especially when upon his owning of his interest And pleading the benefite of the Claime of Right after This Happy Revolution he is threatned with extraordinary matters as is well known And the said very executive act or Ordinance of the Lords is one of the means of concussion complained of For had not the same followed on the Kings Letter the Pursuer might have keeped his place And therefore nothing done be the Pursuer in complyance with the Executive Ordinance while that Government lasted can in construction of Law be understood any thing else but the effects of the Aw that was upon him why he durst not assert his own Right but either comply or outerly lose all To the 3d. That the same is an absurd quible for not only were all imaginable compulsitors that might turn the pursuer out of his place The keeping whereof was the only mean that did secure him against the 7000 Merks already execute and he actualy turned out and an other installed in his place But there still remained a farther and most vehement compulsitor against him for taking the 7000 Merks Viz. That otherwayes by inevitable necessity he behooved to lose all And the Law securing him under such a necessitous Juncture That what ever he did for saving a part of his means rather then to lose all His so saving to prevent his utter loss can never be constructed an act of deliberat and spontaneous renouncing the benefite of recovering what he injuriously lost but allenatly a saving of what for the time he could and this likewayes is held as a principle by all Lawyers that the party concussed from his Right and accepting of the mean price and disponing his interest is never understood to Homologate the concussion or affent to the wrong done him But allanarly to consult his own interest Quo minus perderet and the same question occurred in that case of the Lady Grayes and all others of concussion wherein the partie laesed did both give Rights and take money and notwithstanding thereof was alwayes restored against such deeds and whatever else they could have done under awful circumstances which debarred them from redress and remedie for the time Upon which debate the Commission pronounced their interloquitor in the Terms following Viz. The Commission of Parliament appointed for Fynes and Forfaulters are of opinion that any deed done by the pursuer during the power of the concussion cannot import an homologation of the Lords sentence so farr as to debarr him from restitution when the bazard is over And therefore that the said pursuer ought to be reponed to his Office of Clerk ship The pursuet is able to instruct That by continual persecutions imprisonments and other miseries which he was exposed to in the late evil Government even after he was cast out of his Office his losses multiplyed and did arise to a very considerable sum to the great detriment almost ruine of his Familie tho the preceeding part of his life had been a course of serving and suffering for the Royal Family his Country All which did not discourage him from the little services he was capable of had occasion to perform since the late happy Revolution Therefore he is most confident to obtain Justice and to be restored to his office which is his undoubted right by a Parliament that hath exprest so great a sense of the evils done in the late reigns did patticularly by the claime of right provide for restitution of the loss of offices Especially seeing the grounds of Law and reason in his case whereupon the Commission proceeded are most clear convincing to every mans reason yet for furder satisfaction conviction the proper words in the Act 1621 and in the Kings Letter 1676 with the Depositions of the Witnesses and Quotations of Law and Practices are hereto subjoyned Follows the Clauses of the Act of Sederunt 1621 whereby it appears evidently that the Establishment of the Clerkships in three Offices was only intended and not the discharging of two officiating Clerks in each Office and that whatever may be pretended Yet the private Interest of the then Clerks was the only Cause and Occasion of the Act. It is the express will of the Lords Likeas they hereby declare that their Authorizing and providing of the Provision given to two persons admitted in ilkee an of the saids three Offices tends allanarly to establish the Right and Security of the indivisible Place and Office in the person of two provided c. Likeas it is declared that it shall not be permitted to the Clerk Register present or his Successors in time comming to joyn any person