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
UNTO HIS GRACE THEIR MAJESTIES HIGH COMMISSIONER AND THE RIGHT HONOURABLE THE ESTATES of PARLIAMENT 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 emolumentâ— 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 164â— 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
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 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