Information
for
ALEXANDER
MONRO
of
BEAR-CROFTS
.
THE
said
Alexander
Monro
,
upon
the
second
day
of
November
1669
,
purchased
and
Obtained
from
Sir
Archibald
Primrose
then
Clerk
Register
,
the
Office
of
an
Ordinary
Clerk
of
Session
,
during
all
the
days
of
his
Life
unremovable
;
As
the
Gift
of
the
said
Office
herewith
produced
,
more
fully
bears
;
By
Vertue
whereof
,
and
considering
that
the
said
Sir
Archibald
Primrose
,
was
by
his
Gift
Ratified
in
Parliament
,
Expresly
and
Fully
Impowered
,
during
all
the
dayes
of
his
Lisetime
,
to
Choise
and
Appoint
Clerks
of
Session
,
one
or
more
,
during
their
Lifetimes
,
in
the
express
words
following
,
(
Cum
plena
&
absoluta
potestate
ei
durante
spatio
antedicto
,
eligendi
,
locandi
,
&
Constituendi
Clericos
,
deputatos
,
&
substitutos
,
unum
seu
plures
in
dicto
officio
durante
vit
a
dictorum
deputatorum
&
substitutorum
,
idque
semper
prout
ei
expedire
,
vel
emolument●
subditorum
nostrorum
in
exequendis
dictis
officiis
conducere
videbitur
.
)
And
that
the
said
Sir
Archibald
did
name
to
the
Parliament
six
Clerks
to
serve
in
parliament
and
Session
,
who
were
sworn
and
admitted
,
and
approven
in
Parliament
and
Seffion
,
and
their
Rights
ratified
in
Parliament
;
It
is
evident
that
the
said
Alexander
had
good
and
undoubted
Right
to
his
said
place
and
office
,
so
that
except
upon
the
account
of
Malversation
lawfully
found
and
proven
against
him
,
he
could
not
possibly
be
removed
.
Yet
true
it
is
,
That
after
he
had
served
faithfully
in
the
said
office
for
several
years
,
and
notwithstanding
of
his
former
many
services
&
sufferings
in
the
wars
for
the
Royal
Family
,
and
his
Country
:
Nevertheless
upon
a
letter
impetrat
from
King
Charles
the
second
to
the
Lords
of
Session
,
bearing
for
all
other
causes
,
that
it
was
his
majesties
pleasure
,
That
there
should
be
only
Three
Ordinary
Clerks
of
Session
,
according
to
the
ancient
Constitution
;
He
was
summarly
upon
the
20
of
June
1676
,
turned
out
by
the
Lords
of
Session
:
who
did
arbitrarly
modifie
leven
Thousand
Merks
for
his
Office
to
be
payed
to
him
by
the
deceast
Mr.
John
Hay
his
Colleague
.
When
his
Majesties
Letter
was
read
,
the
said
Alexander
Monro
pleaded
,
that
by
Ours
,
and
the
common
Law
,
the
Lords
could
not
warrantably
proceed
thereupon
,
to
determine
any
thing
concerning
his
office
:
which
was
his
property
:
And
to
which
he
had
as
good
Right
as
any
man
had
to
his
Estate
.
And
having
offered
several
Grounds
in
Law
to
clear
the
same
,
he
craved
to
be
heard
by
his
Lawyers
:
And
offered
to
undergo
any
tryal
,
as
to
what
ever
might
concern
the
discharge
of
his
office
:
And
the
Veredict
of
all
or
any
whose
affairs
had
been
at
any
time
amongst
his
hands
,
Whether
ever
he
had
malversed
or
Extersed
,
or
had
been
defective
in
his
Duty
,
or
had
done
any
thing
unworthy
of
a
Clerk
of
the
Session
:
And
he
urged
further
,
That
such
Letters
were
many
times
impetrate
upon
misrepresentation
;
and
therefore
craved
some
competent
time
to
inform
his
Majesty
of
the
nature
of
his
Right
,
and
of
his
services
done
to
the
Royal
Family
and
his
Country
,
at
the
Engagement
1648
:
And
in
Ireland
in
Anno
164●
.
And
at
Worcester
with
his
Majesty
,
(
where
his
Brother
Lievtenant
Colonel
Monro
was
kill'd
;
and
himself
taken
prisoner
:
)
And
in
the
Highlands
in
the
years
1653
:
and
1654
:
and
other
Occasions
;
Nothing
doubting
when
his
Majesty
were
rightly
enformed
,
he
might
rather
expect
a
better
imployment
by
his
Majesties
Free
gift
,
Then
to
suffer
prejudice
in
his
property
&
Office
,
(
which
he
had
purchased
with
his
own
money
,
)
through
any
thin
which
might
flow
from
his
Majesties
hands
.
To
which
it
was
answered
,
That
he
might
use
these
pleadings
on
his
Services
,
To
be
one
of
the
three
Clerks
appointed
by
his
Majesty
.
And
to
that
he
replyed
,
That
he
could
not
be
one
of
the
three
without
wrong
done
to
others
who
had
undoubted
right
;
And
he
craved
no
more
but
the
peaceable
possession
of
his
own
.
Then
he
was
commanded
to
remove
;
And
when
he
was
gone
,
Sentence
was
pronounced
,
Removing
him
from
his
Office
,
and
appointing
his
Colleague
to
pay
him
7000
Merks
.
Which
Sentence
was
never
intimat
to
him
in
the
ordinary
way
;
Nor
was
he
suffered
to
return
again
,
Wherefore
he
resolved
the
next
morning
to
take
his
place
in
the
House
,
and
being
near
to
go
in
,
he
was
pulled
hack
by
Force
by
some
Friends
who
told
him
,
he
would
be
sent
into
prison
if
he
attempted
it
.
And
though
he
answered
,
it
would
be
convenient
for
him
to
be
so
treated
,
yet
they
carried
him
away
Violently
.
Now
by
what
is
said
above
,
it
is
evident
that
he
was
cast
out
of
his
Right
and
Office
by
Violence
compleated
against
him
,
after
all
the
Resistance
he
could
make
.
Whereby
having
ever
since
been
debarred
from
his
said
Office
,
and
Right
,
and
wanting
opportunity
to
apply
for
redress
,
till
the
late
happie
revolution
;
He
did
address
himself
by
supplication
to
his
Grace
their
Majesties
high
Commissioner
,
and
Estates
of
Parliament
,
craving
that
his
case
a
foresaid
might
be
taken
into
consideration
,
and
that
his
Right
to
his
Office
,
and
the
illegal
and
Awful
way
of
his
being
thrust
therefra
,
might
be
declared
,
and
he
thereupon
reponed
,
and
for
that
effect
;
that
his
case
might
be
recommended
to
the
consideration
of
the
Commission
of
Parliament
,
appointed
for
fines
and
forefaultures
to
cognosce
thereupon
,
after
hearing
of
parties
;
And
accordingly
the
affair
having
been
remitted
to
the
said
commission
;
And
the
parties
having
interest
,
being
cited
to
compear
,
and
the
said
pursuer
at
the
last
peremptorie
dyet
,
appointed
be
the
said
Commission
,
having
compeared
with
his
Procurators
,
resumed
his
lybel
:
Viz.
That
he
had
good
and
undoubted
Right
to
his
said
Office
of
Clerkship
;
But
was
awfully
and
illegally
thrust
therefrom
,
by
concussion
,
and
such
force
of
Authority
,
in
manner
foresaid
,
as
he
was
not
able
to
resist
.
And
therefore
that
the
same
might
be
so
found
and
declared
,
and
he
thereupon
in
Justice
reponed
to
his
said
Office
and
Right
.
Against
which
it
was
alleaged
be
the
Defenders
,
viz.
The
Officiating
Clerks
personally
present
,
with
their
Procurators
,
That
1
mo
.
The
said
Pursuer
had
never
a
legal
Tittle
to
the
Clerkship
;
In
respect
,
That
by
an
Act
of
Parliament
,
Anno
1621.
the
number
of
Clerks
were
Restricted
to
Three
,
and
the
Pursuer
being
but
One
of
Sex
,
was
super
numerarie
.
And
that
by
the
said
Act
of
parliament
,
no
person
could
be
joyned
to
any
of
the
Three
Clerks
,
without
the
Clerks
own
consent
:
And
that
no
patent
in
favours
of
Sir
Archibald
Primrose
,
Anno
1661
,
impowering
him
to
name
more
as
one
Clerk
in
one
Office
,
nor
any
Confirmation
in
Parliament
,
of
such
an
Nomination
by
Sir
Archibald
in
favours
of
the
Puriuers
Author
,
could
import
any
Derogation
from
the
said
old
standing
Act
of
Parliament
1621.
2do
.
It
was
alleaged
,
That
as
the
Pursuer
had
no
Right
,
so
could
not
the
way
and
manner
of
turning
him
out
of
his
Clerkship
by
the
Kings
Letter
,
and
Ordinance
of
the
Lords
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
1●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
sūmarly
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
impu●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
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
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
:
●
:
C
:
58●
.
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
exc●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
.
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
●●●●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
praes●●●itur
metu
confirmatuin
And
for
this
,
cites
the
foresaid
Lex
II
:
●●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.
C●●●
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
●autum
,
Quia
tant●
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
.