acknowledged That Sir Archibald Primeroses Gift did likewise import that Liberty But all that is contended is That the Lord Tarbat was the first that did exercise that Liberty according to Law viz. By conjoyning only upon the express consent of the Incumbents in the Office For if the Register might conjoin one without consent there can no rational ground be given why he might not conjoin three or four in each Office So that the cause of Deputing one or more in each Office will either run too farr or must be regulat by the Act of Parliament and the Interest and Conveniency of Lieges of which the Lords of Session are the only proper Judges And it is hoped it will not be pleaded That the King could dispense with the Act of Parliament And the reason why the Lords of Session did think it convenient that there should be no more then one Clerk in one office unless the other Clerk were brought in at the Desire and with the Consent of the Incumbent was by reason of the prejudice that the Liedges might sustain through the delay it might occasion in the dispatch of Justice by the Debates and Quarrellings that might arise betwixt two Clerks in one Office that were not in a good understanding together whereof the Petitioner is a living Instance It is then apparent that His Majesties Letter being conform to the standing Law of the Kingdom neither it nor the Act of Sederunt following thereupon can import any injustice as to the Petitioner But on the contrair Mr John Hay had better ground to alleadge That the Lords sentence appointing him to pay 7000 Merks was unjust seing the Petitioner was imposed upon him contrair to Law then the Petitioner has to alleadge that the 7000 Merks was not a reasonable Composition being more than ever before that time was payed for any of these Imployments And the vast difference betwixt Tarbat his bringing in of Conjuncts in each Office and Sir Archibald Primrose his bringing them in does clearly appear in that the one was done in the express terms of the Act of Parliamenr and conform to Law and the other expresly contrair to Law which was fully considered by the Parliament 1685 wherein what Tarbat did was approven and ratified not in course but by a special Act of Parliament which is not Declaratorie but is Statutory and yet not Derogatory from the Act 1621 for as the Act 1621 allowes only one Clerk in each Office without consent of the Incumbent so the Act 1685 allowes only of two with consent and so secures that the Register should not be able to bring in more then two in each Office albeit he should procure the Incumbents consent which seemed to be unclear by the Act 1621. To the second Defence on the Brocard That in dubâ—â— melior est causa possidentis It is Replyed That the Petitioner in point of Right was prior tempore and therefore potior jure And that the possession of the present Clerks can avail them nothing in respect of the violent way that the Petitioner desiit possidere To which it is Duplyed That it is true caeteris paribus qui prior est tempore potior est jure But in this case tho there were no such thing as the Act of Parliament the advantage of the possession would make the difference and preferr the Clerks And the Law does indeed provide That qui dolâ— desiit possidere cannot thereby better his own case which may be the Petitioners but unless it could be proven that the Clership were not in commersio or had vitium rei furtiva this advantage must by Law follow the possession that in dubio it prefers the Possessor And it is observable that albeit by the Law of the twelve Tables rei furtivae aeterna fuit authoritas Yet the Praetorian Law in the Edict quod metus causa neither did nor could extend in rebus metus causa gestis such a vitium reale for ever nor against all singular Successors and supposing there had been just cause of fear in this case as there could be none it were but an unjust wreasting of the Roman Law to the plain prejudice of the Clerks to give the Petitioner the benefit of that Edict the effect of which against singular Successors was at first but Annual ending with every Pretor's Authority and thereafter endured no longer even in rebus immobilibus then for the Ten years of the Roman Praescription and to refuse the Clerks the benefit of that Ten Years Prescription which considering that their Rights have been bona fide acquired and possest be them and their Authors for fourteen Years together without a shaddow of interruption would settle and secure the same according to the Roman Law beyond all possible controversie The third defence founded on the recording of his Majesties Letter the Clerks consent and all these publick Acts of Sederunt and Parliament mentioned therein and the Petitioners so long acquiescence and not quarelling the same meets with no other Reply then that it is a quible on the l. gesta cod dere jud to apply it to any other thing then to the Testimonies and Depositions of Parties and Witnesses and that the recording any Transaction or Matter in it self defective cannot supply its defects To which it is Duplyed that it would appear the Replyers common sense in Applying of that Law goes no farder then his Gloss and Commentars led him otherways he could not oversee the Import of the word Gestum in his so much boasted Edict Quod metus causa gestum est c. And the ll 19. and 58. ff de verb signif Are the best Commentars for the meaning of that word which make it to signifie any Deed that can be the foundation of a Right and it was not reasonable to think that the recording Depositions of Parties and Witnesses should interess the publick Faith more or put singular Successors in greater security in Relation to the subject matter of such Depositions then the Recording publick Rescripts of Princes and solemn Acts of Sederunt and Acts of Parliament should do in Relation to what is defined and enacted thereby And albeit the Discharge and Renunciation to Haystoun on payment of so considerable a Sum be the likest thing of any to a Transaction yet it is hoped that the KING's Letter for executing the Law the express and judicial consent of the three Clerks who had then the sole Right and the several Acts of Sederunt Recorded and whereupon the Clerks Rights are founded will not be found matters in themselves defective and tho' they should the two Acts of Parliament cannot So that without the highest Violation of the publick Faith that can be made in reference to private Rights and most unjust Derogation to the uncontraverted Law of the Kingdom there can be no question of the Rights of the present Clerks to their respective Offices which were bought as dear and have as many clear and solemn Laws for their
Law it had cleared the point For when in his Reply to the Dilators he cites l 14 § 3. ff quod met causa After the words In hac actione non quaeritur utrum isqui convinitur au alius metum fecit sufficit enim hoc docere metum sibi illatum esse He industriously suppresses these which immediatly follow Et ex haere eum qui convenitur etsi crimine caret lucrum tamen sensisse Which words do not only quite exclude this Case from falling under that edict seing the Clerks have their Offices for most Onerous Causes as is notour to all concerned and so cannot in Law be said Lucrum sensisse But likewayes these words must secure all such singular Successors from the Avarice of evil Men whose pretences they could not possibly obviat and what is said before to enforce the second Defence as to the difference of res furtiva and metu gesta in relation to singular Successors is here repeated tho' it be sufficiently cleared by what is already said That the Petitioner was under no Impression whereof the Law takes notice Whereas it is Replyed to the 4th Allegiance That the Renounciation being granted while the King who signed that Letter was in life And the Petitioner within his reach The Renounciation ought in Law to be looked on as an effect of the same continued Awe and Force whereby he was removed And the same as if Robbers had plundered him of an hundred pounds and offered back ten on his Discharge of the whole in which case the Discharge could not hinder Restitution It is Duplyed 1mo Although the Letter had expresly commanded him to remove from his Office yet unless it had adjected a certification of Death or an or other of the above effects of the vis atrox defined in the Text it could import none of the Legal and fixt causes of justus metus But it s far otherwise and that Letter is intended and conceived in such terms as could not possible fright any Rational Man And it is not in the least questioned but the Petitioner if he had not been conscious to the nullity of his Gift as being grounded on that dispensing clause in express contradiction to the Act of Parliament and constitution mentioned in that Letter he would have refused to accept of the money and without delay would have applyed to the King to be reponed who as the Petitioner cannot deny looked on him at that time as a very Loyal Subject and wanted but such an occasion to reward the Faithful Sacrifice he constantly rendred to him during the English Usurpation But 2do The Letter and Act of Sederunt were sufficiently obtempered by his removing and if he was thereby bound to give a Receipt to Haystoun on payment of the Seven Thousand Merks which is not unquestionable yet it is plain beyond all contradiction that there was no necessity from that Letter or the Act following upon it either for his accepting of the Money or after he had taken it for his granting so positive and ample a Renounciation in terms sufficient both to Denude himself and to transmit his pretence in favours of others tho the Letter and Act of Sederunt had left his pretended Right as entire as it was at the first granting of it and as to the ungentle parallel of the Robbers there are so many disparities and so palpable that it merits no more Particular answer then that the Petitioner is not in the case of the Edict and tho he were the difference in Law betwixt Res metu gestae and res furtivae betwixt singullar sucessors for most onerous Causes and Robbers need not be insisted upon The Replyer ends with a Reflection on the Wrongs commited in the latter Reigns as if the dispensing clause in Sir Archibald Primroses Gift and be vertue whereof he appointed six Clerks of Session in manifest contempt of the Act of Parliament were not one of the most pregnant instances though nor the most important that can be observed of that Nature since the Restoration of the Monarchy and was a wrong done not to a single Person only but to that intire Fraternity the making a preparative to break that Imployment and thereby occasion the greatest disorders in the Administration of Justice in all time thereafter if the Registers thought fit to constitut as many Clerks of Session as the Secretaries of State are in use to admit Writers to the Signet which they might very well have done be vertue of that Clause if the King could have thereby dispensed with the Act of Parliament 1621. Although it be but consonant to the Modesty of the Replyer to obtrude that the Kings letter for Executing the Act of Parliament was an act of Tyrrany and yet that Clause was a deed of legall Administration because it is the Foundation of the Petitioners pretended Right who does very much disparage the sufferings of these Persons in whose favours Their MAJESTIES and the ESTATES past the Act of Parliament for Rescinding Fynes and Forefaulturers by so Whinning a Comparison of the merits of his cause for tho his MAJESTIES Commissioner had not in plain Parliament Ordered the Petitioners Case to be Expunged out of that Act it is very well known that he never suffered the least inconveniencie for Conscience sake Nor will any Man who has not darkned that Light by Self-love and Avarice pretend to an Office which after he enjoyed for several years without paying a Groat for it He then Renounced upon Receipt of Seven Thousand Merks And knows very well that the present Clerks whom he would now Rob of it did purchase it bona fide for a greater Sum And whereof if he should prevail they have no Action competent to them for Recovery of a Sixpence In Respect whereof The desire of the Petition ought to be Refused and the Petitioner condemned in such Expenses as the Honourable Lords and other Members of the Commission of Parliament shall find just THE VISCOUNT OF TARBAT Being Cited INCIDENTER in the Action betwixt Alexander Monro and the Clerks of the SESSION Does humbly Offer what followes to be Considered by the Right Honourable COMMISSION of PARLIAMENT BY The express standing Statutes the Clerk Register's Deputes for Parliament and Session are restricted to the number of Three The Law prohibites the Clerk Register to commissionat any more or to adjoine any to these Three without express consent of the other Principal to whom any shall be adjoined Some three or four times one desires of the Principals one has been adjoined to the Desirer before the year 1640 and this was consonant to Law But Sir Archibald Primrose casts in a Clause in his Commission allowing him to joine one or more in these Offices as should be found conducing to the good of the Leidges and on this warrand joins one to every one of the Three Offices ratifies their Gifts in Parliament and they serve in Session but without asking or getting any express consent
its own Nature is of the greatest import and the most involved that is known in Law since it is almost Impossible for any Man to know distinctlie the Vniversum jus Quod defunctus habuit before he enter Heir and for which cause the dies Cretionis and Au nus Deliberandi were introduced to lessen that danger it is therefore most probable that the Romans were more prone and readie to allow Restitution against the Aditio Haereditatis and upon more slender Grounds then against any other Obligation in their Law and it is certain that in our Decisions the Lords do frequentlie sustaine defences to Elide an Odious passive Title which they would repell in other causes for the whole context of the Civil Law anent the Edict Quod metus causa makes that paragraph altogether excentrick and Irregular But 2do the great Cujace whom never Man after Justinian's time equaled in the knowledge of the Roman Law was so conscious to the absolute inconsistency of this Text with the whole Titles Quod metus causa both in the digest Cod. That he is forced in his Comentar ad l 21. § 5. Digestis quod metus causa to correct it and in stead of Verborum to Read it Verberum For says he metus est futurorum sic dicimus metum verberum qui justus est metus non verborum So that this Text being thus restored will not meet the case seing if the alique timore which follows the word verberum be not likewise corrupted it must be understood habili modo necessarly supposed to be always a justus timor scilicet ex justa causa and it is pleasant to take notice that the Replyer could not find one single grue in all the Bodie of the Civill Law which could be wreasted so much to favour the Petitioners case save this corrupt Text only and yet tho it were sincere as it cannot be He could not subsume in the terms of it neither the King nor the Lords having by Word or Write threatned the Petitioner to accept of the Money or to grant the Renunciation The other Citation is the l 11. Cod. de his quae vi c. Si per impressionem quis aliquem metueus saltem in mediocri officio constitutum rei suae in eadem provincia vel loco ubitale officium peragit sub venditionis titulo fecerit Cessionem quod emptum fuit reddatur Upon which Text the Replyer most insipidly subsums That in the Petitioners case there was aliquis metus for a Child would have adverted that the word aliquem in the Text could not construe with impressionem and did refer only to the Concustor and he is pleased to add that the Petitioner could not have disobeyed the Kings command in his Letter without the hazard of being constructed a seditious Contemner of Authority so that his taking the Money was an Act of necessity It is Replyed That the Impression mentioned there behoved to have been a just one from a sufficient Cause And albeit in this Text which is acknowledged to be sincere the word aliquem had been written aliquam as the Replyer would have it Yet the Law even in that case would regulate the Extent of that general Terme and restrict it only to a just impression the causes of which are fixed and known in Law And as it is evident from the Causes of Just Fear defined in the Text as well as from the l 10 cod hoc tit in these words accusationis institutae vel futurae metu alienationem seu promissionem factam rescindi postulantis improbum est desiderium That the hazard of being constructed a seditious Contemner of Authority was no cause of fear to which the Roman Law would allow the benefit of the Edict unless he should thereby have run the hazard of being truly guilty of Sedition So it is gross to alleadge that the Kings Letter bears a command to the Petitioner for accepting of Money or Relates to him otherwise then as the Lords of Session should find just to apply it but in this case there is no difficulty to understand that the Petitioner was abundantly secure from the hazard of contemning Authority by his forbearing to intrude any more upon that Office and suffering the Act of Parliament to be put to execution whether he had accepted of Money for so doing or granted any such Renounciation or not By all which it is plain that none of these Citations that are adduced out of Baldus Anchoranus Fulgosius Geminus Pappon Caldas Natta Alexander Arretinus Menochius and Bartolus are to the purpose And in the case the Lady Gray against the Earl of Lauderdale the Right transmitted by the Lady was a Legal Right consistent with Law the Concussor was called and insisted against and there were Acts of Force and Violence lybelled and proven such as that the Earl violently entred to the possession of these Lands disponed before any sentence in his Favours or Right made to him be the Lady Whereas in this Case tho' the Petitioner's Right had not been null by the Act of Parliament yet there was no Force or Violence done for removing him much less was he any wayes compelled to accept of Money or give such an express Renunciation of his Right and if he had been intimidate by the LORDS to accept of the Money as he was not yet a Receipt of the seven Thousand Merks had answered the Termes of the Act of Sederunt by which he is not at all ordained to Renunce And he might upon offering to consigne such a Receipt without the Renunciation have oblieged Haystoun to pay the Sum by a Charge on the Act of Sederunt upon which albeit it be plainly and positively urged that on the other Hand no manner of Execution could have followed against the Petitioner if he had not voluntarly both given Obedience and Renunced yet nevertheless there is no Reply made to this but that in those days he durst not offer to repossess himself of his Office as it is humbly conceived he dare not now a dayes albeit he might then as well as now refuse or accept Money and grant Renunciations or not as he thought fit The second Allegeance against the Concussion That the LORDS had no interest to concuss gets no better Reply For to say the KING concussed especially in an Affair wherein the Petitioner's particular Interest was not considered and which might have taken full effect without his accepting of Money and all without his giving any such Renunciation does not at all take it off and therefore needs no farther Duply To the thrid on the special Case of singular Successors It is Replyed That the Action of Restitution competent to the Party laesed is in Rem scripta and follows the thing extorted whatever Bona Fides the possessor had in the acquisition It is Duplyed That this Allegiance does not grant but only suppose the Concussion and if the Replyer had been ingenuous enough in citing the