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 [Page 2]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 1mo. 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. [Page 3]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 [Page 4]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.

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 [Page 5]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, [Page 6]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 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.

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 [Page 7]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.

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.

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 where­ever 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. [Page 8]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.

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.

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 [Page 11]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.