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
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
thereupon be understood an Act of Concussion or Aw upon him In Respect that the Kings Letter was founded upon and related to the said Ancient and Standing Law And that the Lords did justly debarr the said Pursuer as wanting a legal Tittle and that there was no force used against him To both which Points it having been Answered be the Pursuer That as to the Arguments anent his alleaged not having a Right The same were both Calumnious and Irrelivant Because 1mo The pretended Act of Patliament 1621 is but a privat Act conceived in favours of the then Incumbents that no person should be joyned to any of them without consent and was never a publick Law 2do That it is latent to this hour and never so much as mentioned in the Printed Index of unprinted Acts of that Parliament 3tio That ever since there have nevertheless been six persons officiating as is nottourly known 4to That the very words of the Statute allows of two persons in each Office declaring nevertheless the principal Offices and Clerkships to be but three which was never contraverted 5to That the Defenders in their print confesses that there was no consent of Incumbents so much as required since the Year 1630. nor can the World demonstrate any pretended consent was adhibit ex necessitate of the Laws requiring it 6to That in Anno 1661 when the Pursuers Author was admitted Clerk and joyned in the Office with Haystoun there was a total Vacancy Haystoun having been admitted but to a half of the Office had no farder Interest to Obtrud the want of his Consent to his Colleague then his Colleague to him 7mo That as the pretended Act 1621 was never a publick Law nor the Rule of establishing the Clerkships So in the Year 1661 upon the universal Vacancy of the whole Clerkships Sir Archibald Primrose his patent allowing him to joyn Clerks in Offices is not only ratified in Parliament but the very Nomination of the haile six Clerks is Read Ratified and Aproven in Parliament whereby the Establishment of the Clerkships was of new Constitute by the King and Parliament which no private person can Quarrel because the Clerkships were all Vacant and none had any Interest Nor has the publick or King and Parliament to this hour altered the same But on the contrar Sir Archibald Primrose his very Gift is Per Expressum made the Standart of the Lord Tarbats Patent and Gife from whom the Defenders derive their Right Likeas the Act of Parliament 1685 Ratifies the Establishment of two Clerks in each Office and that with reguard to the Condition of the Clerkships in time past Viz Per Expressum three Offices and two persons in each Office without the least Insinuation of ones Consent to another 8vo That Havstoun the person whose Consent is wrongously pretended to have been necessary did for seventeen years Acquiesce and Consent to the Pursuer and his Authors officiating by communicating the benefit of the Office without Control and never in the least questioned the Pursuers Right so that it was Jus Tertii for any person else to Quarrel the Pursuer upon that head And as the Pursuer was well founded in point of Right upon the considerations aforesaid so was it alleadged for him that the Kings impetrate Letter and Method used for turning him out by those in Authority were most pregnant Acts of Concussion as have fallen out in any case notwithstanding of what was alleadged in the contrar upon the pretended Act of Parliament 1â—21 as the foundation of the Letter For 1mo The Letter was opponed bearing no mention of the pretended Act of Parliament but Per Expressum mentioning his Majesties own Pleasure 2do That the said Act of Parliament 1621 could be no foundation for the pretended Ancient Custome of three Clerks only because it expresly Establishes three Offices and allows of two in each Office and de facto two have alwayes officiat ever since 3tio That the Defenders have in both their Print and Pleadings grosly prevaricat in adducing of grounds for the said pretended custome of three Clerks only They first alleadging on a Statute Anno 1594 mentioning three Clerks which is nottourly in desuetude Then they pretend the Statute 1621 which Establishes three Offices and allows of six Clerks but finding the weakness of the said Act 1621 on the account of all that is abovementioned adduced against it why the same could not support the impetrat Letter They at last pretend The King at his pleasure without the Parliament might overturn private mens Rights by suppressing the Offices and places they hold and bought from Subjects according to the establishment of both King and Parliament By all which it might be evident the Kings Letter was but impetrat contrarie to Law and that the Defenders were but Ex post facto excogitating grounds to support the same 4to That the Lords of Session did most unwarrantably proceed in debaring the pursuer suÌ„marly without either lybell or accusation for Esto the pretended act of Parliament 1621 had been a standing Law and in force yet the precise point that the pursuers case differed in from the said pretended Act being only the alledged want of Haystouns consent Haystoun whose alone intrest that point was ought to have been the only quarreller of the pursuers Right in a legal way That so the pursuer might have occasion upon the grounds above mentioned to assert his own Right as absolutely good and that Haystouns 17 years acquiescence and communicating the emoluments did preclude all pretext of the want of his consent Beside that by the tenor of Haystouns own verie Right he had intrest but in the half of the office and the pursuer and his author the other half so that there is nothing more manifest than the iniquity done to the pursuer in turning him out for want of Haystouns unnecessary consent 5to As to the matter of force and violence upon the pursuers inclinations he leaves to the World to judge whither the Lords their baffling all his expostulations at reading of the Kings Letter their summar debarring of him without giving a cause actual installing an other in his place Their arbitrarly modifving of seven thousand merks Scots which was little over a Years purchase of his Office and that all this was done by authority and these in the Government warranted thereto by the Kings Letter were not more nor sufficient grounds to Over-Aw any man that had the least reguard for his own saftie to an awful yeelding to the authority that injoyned these things especially when the reclaiming against the Lords ordinary sentences in those dayes was so highly displeasing that the impunging of the Kings pleasure in his Letter would certainly have a risen to an higher crime as is evident by the very tenor of the said letter expresly threatening his Majesties displeasure against the impuâ—gers of the Lords their proceedings especially if any that served before their Lordships should
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