with the Clerks serving in the saids three Offices except by the Advice and Consent and at the desire of the Principal Clerk serving for the time in the place And no otherwayes c. Follows the Clauses of the Kings Letter anent the Deference enjoyned to the proceedings of the Lords of Session and the Order for turning out the Clerks Anno 1676. As we have trusted you with the preservation of the Rights and Properties of our Subjects c. So we will suffer none of our Subjects to reproach your procedure much less those who serve before you c And it is OUR Furder Pleasure that in all time coming there be only three ordinary Clerks of Session besidethe Clerk of the Bills according to the Ancient Constitution and that of the number that now serve ye make choise of three that shall still serve and that ye modify such satisfaction to be payed by those that remain to those that are to go out as ye shall find Just and Reasonable Follows the Texts of Common Law Opinions of Doctors Decifions of forraign Courts Pratiques and Decisions of the Lords of Session whereby it is demonstratively evident That any Transaction Contract or other Deed that a Party has been induceed into by the Aw and Dread of Persons in Authority is reduceable And the party laesed to be restored against the same as being induced by Concussion or Impression and that even in the Case of Dread and Fear of a Soveraign or Kings Command And that while the Authority or Cause whence the Fear proceeded does last no Deed medio tempore by the Party laesed can import a Homologation in the least And that the Party laesed his very private reclaiming and testifying of his dissent is an Evidence of his being Over-Awed and that he had not the freedom of his Election and Will 1mo The whole Tittles in the digest God de vi metu particulatly the Lex ij Cod. de his qui vi c. whereof the words are Si per Impressionem quis aliquem metuens in offieio constitutum id est in authoritate constitutum rei suae sub venditienis titulo fecerit cessionem quod Emptum fuitreddatur That is if a person out of Dread of any in Authority sell his Goods or Right that the thing sold be forth with restored back to the Seller according to which Law Bachovius and the Doctors Judge Restoration competent against the Impression and Fear Inferred by persons Qui sunt in potestate Summa perpetua as Brounman upon this Law cites them 2do Mascardus deprob Concl. 1055. Num. 36. Holds it as a principle that a Subject is restorable against the Laesion sustained by a Transaction entered into by Authority or Command of a King and his words are Quod metus Regius propter quem facta fuit Renunciatio ab Episcopo placentino de Episcopatu ejusdem eivitatis non impedit quo minus illa renunciatio retractari possit And the same is held by Baldus in his 142 Counsel whereof the words are Compromissum dicitur permeium factum eo quod partes teneantur parere Domino so that where-ever the Authority of a Soveraign or Lord interveens the party laesed thereby is in Law alwayes restoreable against the samen 3tio Sinclar in his Collection of the Lords descisions in the year 1543 anent the case of the Earl of Mortouns action against Q Mary for reducing the Resignation and disposition of the Earldome made in favours of King James the 5th her Father The Lords sustained the action against her summarly And Albeit she was Minor and the reason rendred in the decision Per expressum is as follows Viz. Because it is provided by the act of the Lords of Council lately made since the decease of the King that whosomever complains that they were hurt in their possessions Land Heretages Goods or gear be the King Mediate vel immediate that it should be leisum for them to call the Queens Advocat and Comptroler be an simple Bill without delay of Table or dyet to hear them restored again to their possession that because it was heavily murmoured that the King opprest some of his Leidges in sick sort in his lifetime and they now complain'd thereon The Lords now for relief of their own conscience and Saule devised the same and therefore the Lords decerned as said is April 12. 1543. 4to Balfour observes out of the records of the Session that on the 14 April the said 1543 Year of GOD in the case of the Lord Mortoun against the Q and 14 Jully 1543. Laird Dundass Contra Craighall I â— C 58â— The Lords found that if a man be but solicited by the King to make a disposition or allienation of his goods and gear the allienation so made is understood to be throw just Fear Dreadour and much more if a man be threatened and imprisoned be the King and therefore that any such allienation or disposition is Reduceable Void and Null 5to Sinclar observes That upon the 23 of April in the said year 1543 in a Red at the Lord Yeasters Instance of a Sentence and Declaration of his Majesties Pleasure pronunced by the King himself annent the Shirriffship of Peebles which belonged heritably to my Lord whereby upon the Kings being displeased with my Lord that two Thieves did escape out of Prison in my Lords Brothers Lifetime which was the Brothers fault only and submitting himself to the Kings Determination and Will the King decerned him to tyne the Shirriffship and to grant Infeftment of the same to the Lord Fleeming All which is accordingly performed and yet in the said year 1543 and after the Kings decease the Lord Yeaster having intended his Reduction as said is The Lords by their Sentence Definitive reduced the Declaration of the Kings will and Infestment that followed thereupon and that for the reason following in express Terms Viz Because the King excâ—sserat arbitrium boni Viri in declarando suam voluntatem quia gravius punierat dictum Dominum quam de jure puniendus erat pro hoc delicto Because by no Law Reason or Consuetude ought he to have tint his Heritage thereof and so the King could not upon the submitting the matter have taken my Lords Heritage from him Quia quando quis se refert voluntati adversarii sui ille non potest de jure inique arbitrari contra rationem Quod si fecerit reducitur ejus voluntas 6to The Lords of Session upon 20 December 1671. Observed by the Lord Stairs in the case Betwixt Bramfoord and Callender wherein Bramfoord seeking repetition of a Summ payed be him to Callender which payment Callender alleadged that Bramfoord had acquiesced unto by entring to the possession of the Estate of Bramfoord which had been forfaulted and to which the Government in the year 1647. Did restore him upon the express condition that he should not quarrel the payment of the Summ that he was then
craving repetition of the Lords found Bramfoord no wayes bound to stand to the Terms or condition of the foresaid restoration and that his possessing his Estate Albeit in the Terms and qualifications of the said condition imported nothing whereof the reason is marked to have been because Bramfoord was Ex necessitate to yeild to the power of the Government for the time wherewith he was not able to contend That in the case of concussion the partie Laesed his private reclaiming and testifying the wrong done him to his own friends is good ground whereupon to restore him against all deeds done by him medio Tempore in referance thereto is Recorded 1mo By Papone as expresly decided by the Parliament of Paris on the 9th of August 1545 whose words are Feu Monsieur le Chancelier Poyet homme redouté sit Commandement á un convenu par ses soeurs de faire partage auec elles leur laisser leur portion virile dans troin mois a peine de perdere sa part en l'heredite dont estoit question Voyant ce frere la Grandeur de ce Commandment dont il ne pouuoit reclamer ores que ses foeurs eussent quitte Voyant aussi L. intolerable greiff que ce luy estoit obeyt mais ce fut apres auoer proteste a part de l'iniure qui luy estoit faicte de tout faire irriter en temps de justice Ce qu'il obtint depuis par Arrest de Paris a moyen de ladicte prestation Le. 9 iour d' Aoust 1543. Papon Lib 16 tit 3 arest 10. And it is proven that the Pursuer did reclaim both publickly and privatly 2do The case is also observed to have been the same way decided by the Senat of Tholouse and it is so determined by the practice of Holland as is notted by Christinaeus in his Decisions of the soveraign Courts of Holland vol 2 decis 114. num 5 wherein he cites the practice of the Senat of Tholouse and others 3tio That Fear and Aw arising from Deeds which of their own Nature may import Awfulness needs no Protestation at all to be interposed is held as a principle by all Lawyers Yet the Pursuer did protest and contend as much as was possible against the Awful Authority with which he had to do as is evident by the Depositions following Follows the Depositions of the Witnesses Proving that the Pursuer Reclaimed both in publick and private In presence of Sir John Hall and Sir William Hamiltoun In the Cause of Mr. Alexander Monro against Mrs. John Mackenzie and James Justice SIR John Baird of Newbyth one of the Senators of the Golledge of Justice Aged Sixtie and above Married being solemnly sworn purged and examined depones That it being now so long a time since the Kings Letter concerning the Clerks was read to the Lords of Session The deponent cannot be special as to all and every one of the Particulars mentioned in the Interrogators but depones that he remembets very well that the Pursuer did alwayes reclaim and repine against the order of the Lords for reducing the Clerks to Three and particularly for voting the Pursuer out as one according to the meaning of the Kings Letter And that he did reclaim both the time of the reading of the Letter in presence of the Lords and thereafter And particularly that the Pursuer reclaimed against the deponent himself and would hardly speak with him for two years thereafter Causa scientiae The deponent was present where the said Letter was read and saw and heard ut Supra And this is the truth as he shall answer to GOD Sic subscr bitur John Baird John Hall William Hamiltoun Sir John Lockbart of Castlebill aged fiftie or thereabout Solutus being solemnly sworn examined and purged depones that the deponent cannot be possitive as to the particular circumstances of the expressions mentioned in the Interrogators But depones that he heard Commissar Monro declare his dissatisfaction to the deponent before the Letter was read And as he remembers used some expressions reclaiming against the Letter the time it was read in presence of the Lords and after he was turned out remembers he has used words of very great resentment for his being turned out and that the deponent never heard Mr. Monro speak of that subject without repining Causa scientiae The deponent was one of the Lords of Session the time of reading the said Letter and this is the truth as he shall answer to GOD Sic subscribitur John Lockhart John Hall William Hamiltoun Robert Hamiltoun of Presmennan one of the Senators of the Colldege of Justice Aged sixty eight years married being solemnly sworn purged and examined depones He cannot remember of all the particular circumstances mentioned in the Interrogators but that he remembers on the day the Letter was read The pursuer reclaimed against the same and said that he had acquired his place from Sir Arebbald Primrose Lord Register and he thought it strange that he should be disquieted therein for though he wanted a place he thought the King in Honour should have provided him to a place in reguard of his great services sufferings for his Majestie both in England Scotland and Ireland Depones that the Letter being read and after the Commissars reclaiming all the Clerks were put out to the outter house and without calling any of them in as the deponent heard to intimat the sentence to them that they were put out And the next morning the Pursuer came to the deponents Chamber and declared he would go in and possels his seat as Clerk of the Session since there was no intimation of the sentence against him and desired the deponent might go with him whereunto the deponent consented went both towards the Parliament house The length of the midle of the old Kirk where Sir Patriâ—k Murray met them who asked where the deponent and the Pursuer were going To which the Commissar answered that he was going to keep possession of his own seat as Clerk of the Session and the deponent did acknowledge he was going there also for the same purpose whereupon Sir Patrick Murray by several arguments did diswade them to go because it would be ill taken and would prejudge them by which they were both perswaded to go back with him and further depones that the deponent did often after that hear the Pursuer reclaim against the said sentence Causa scientiae patet and this is the Truth as he shall answer to GOD Sic subscribetur Robert Hamiltoun John Hall William Hamiltoun Sir Alexander Gibson of Adeston one of the Clerks of Session aged fifty five years or thereby married being solemnly sworn purged and examined depones that after the Kings Letter for reducing the Clerks was read Commissar Monro did make a Representation to the Lords of his concern in that Matter and desired that they would take his Case to consideration before they proceeded on the matter but what were
the Expressions or Arguments used to that purpose The Deponent does not remember now after so long time having taken no note or minute thereof at the time nor does he remember what answer was given to what he spoke But depones That Commissar Monro did reclaim and complained of his being removed from his place as a great injurie done to him And depones That he never heard Commissar Monro speak of his being turned out but with gerat dissatisfaction and resentment causa scientiae pates And this is the Truth as he shall answer to GOD sic subscribitur Al Gibson John Hall Will Hamilton Sir Patrick Murray Their Majesties Receiver General Aged about fifty years married being solemnly sworn purged and examined Depones That he met with Presâ—â—â—â—an and Commissar Monro in the Old Kirk the next day after they were put out And he asked them Where they were going Who answered That they were going to take their seats as Clerks of Session And that the Deponent used many arguments with them to return back and not go in And that Commissar Monro was more carnest to go forward then Presmennan But the Deponent having used many perswasive Arguments with them to return for fear of greater prejudice to them they were at last enduced to return And the Deponent went with them to the house now called Alexander Crombies and took his Morning drink with them And farther Depones That he never heard Commissar Monro speak of his being turned out but with great resentment and complaint as a great Oppression done to him but remembers nothing of his giving in a supplication to the King thereanent at Windzâ—r Anno 1679. causa scientiae patet And this is the Truth As he shall Answer to GOD sie subscribitur Patrick Murray John Hall Will. Hamilton The Next Point is That in the case of Concussion Fear or Aw arising from any person in Authoritie nothing done by the partie Laesed during the continuance of the said Awfull Authoritie can import any Homologation nor yet hinder the partie Laesed from being restored it positively beld 1mo By Mascard ubi supra â—â—â—â—lus 1055. num 34 36 where his words are Quando metus femel illatus fuisses semper perseverare praesumitur ideoque quod metu follum est ab initio si posteaconstrmatum futrit nullas vires tamen babet quia praesâ—â—â—itur metu confirmatuin And for this cites the foresaid Lex II â—â—d si per impressionem And the Example he adduces is in the words following Quod metus regius propter quem facta fuit renunciatio ab Episcopo placentino de Episcopatis ejusdem civitatis pro Episcopatu Astensi Non sit purgatus ex eo quod Gessit se per quinquennium pro Episcopo Astensi And the reason rendred by him is quia omnia quae facta sunt post renuntiationem metioulosam facta fuerunt durante eodem timore regiae Majestatis quae non impediunt quo minus illa renunciatio Retractari possit and for this aduces the authoritie of Bartole Abbas Alexander Cornel Barbat Decius Paris Boer and twenty more 2do The foresaid Balfour observes that upon the 15 of April 1543 in the said case L Mortcun contra the Queen The Lords did find in the express words following Viz. That the Dread and Fear once occasioned by the King continued and endured till his Highness decease who was the cause thereof So that dureing his lifetime the maker of the said infeftment or disposition durst not Pursue for reduction thereof 3tio That the Lords of Session in the foresaid Case of Bramfoord Anno 1671 did expresly find that albeit the forefaulture of Bramfords Estate was taken off and the Estate restored to him upon the condition that he should not Quarrel the Summs uplifted by Callender And albeit Bramfoord did accordingly possess his Estate to which he was restored upon the said express Condition Yet the Lords found that his so possessing could not import an homologation of the Condition or debarr Bramfoord from craving Repetition of the Money the Reason adduced is because Homologation must import a free consent which the Lords found Bramfoord had not the freedome of under the then Government but behooved to possess his Estate under what ever Condition or Qualification they pleased till the revolution did come about whereupon the alleadgeance of his Homologation was repelled 4to The Lords upon the 27 of June 1632 As Durie observes in the Case betwixt Cassie and Fleyming did repone a Wise against her consenting with her Husband to the alienation of her Joynture Lands in respect that her Husband had over awed her thereto sometime before and was still on Life the time of her Consent and the ratio decidendi expresly marked by Durie in the very Terms of Law and Language of the Doctors is Quia durante subsistente eadem causa metus nunequam etiam cum intervallo metus purgatur So that during the Husbands Liftime the Wife was alwayes found to be under Aw albeit the time of her Consenting she testified nothing of it Likeas in the same Decision the Lords found the Wifes Action of Reduction ex capite metas competent against a Wod-setter of the Liferented Lands who had no accession to the Fear because Durit makes the Action ex metu to have been sustained as in rem scripta and competent contra quemcunque possessorem as also that in the same Decision the Lords found that neither the Wifes consenting nor yet her receiving the Price of her Joyntur Lands immediatly her self could be any Acts of Homologation because she had not freedome of Will during her Husbands Life and that it is a principle that velle non creditur qui obsequitur imperio patris vel domini 5to That the Lords upon the 21 of July the said year as Durie aiso observes in the paralele Case betwixt Hamiltoun contra _____ declare they will decide that Case of Hamiltouns as they did in the foresaid Case of Cassie contra Fleming So that the practice of Scotland has established it as a principle that durante causa metus nunquam purgatur nutus And therefore that what is medio tempore done by the party Laesed can never import an Homologation of the Transaction Meticulosa 6to In the late Case of Concussion at the Lady Grays Instance against the Earl of Lauderdale it is very well known that after Lauderdale was in Possession of the Ladys Estate by Concussion she did receive either 20 or 30000 Merks as the price of her Estate and thereupon actually disponed the same to Lauderdale nevertheless the Lords did in Justice repone her against the said Transaction as being the effect of invincible necessity upon her for the time to accept of some thing rather than loss all So that a paritate rationis Haystoun being actually installed in the Pursuers Office out of which he was not able to remove him for the time What in the world remained for him but as the Lady Gray did to take the mean thing that was wrongously modifyed by the Lords and renounce for the time rather then to loss all 7mo The positive opinion of Lawyers and Doctors as Bartol upon the Lex 4. Câ—â—â— De his que vi metu States it in the case of one that is thorow Fear Terror induced to sell and afterwards receives the price is That his so receiving the price does never import a Homologation of the transaction metioulosa If the seller for the time could do no better And if any other consideration can be fixed upon for the Seller his taking the price Then that of homologation his words are Quod receptio pretii Spontanea non inducit approbationem contractus imo enim recipia pratium ut sit mihi majus â—autum Quia tantâ— minus babeo perdere unde potest esse alia ratio quam apprebationis 8vo And lastly to Summ up all The late Act of Parliament restoring against Fynes and Forfaulturs in the late Reigns and reponing against all transactions thereanent is upon no other ground but that the parties Laesed and transacting were dureing the whole time of the late government under Aw So that they had no freedome of election or choice But were under Constraint and Necessity to undergo that which seemed to be the least ill