Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Dumbar
v.
Mr Murdoch M'Keinzie, Bisop of Murray

Date: 2 July 1670

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This was a declarator at this Dumbar's instance against the Bishop and his son, Commissary of Murray, to hear and see it found and declared, that he has the sole and undoubted right of the Commissary clerkship of Murray in all time coming; and for bygones, craves repetition of the whole benefits and obventions of the said office, ever since his unjust and illegal deprivation by the Bishop. It being demanded by the Bishop, by what right or title he laid claim to that office, it was answered,—He had right from Mr. John Hay, who was established Commissary of Murray, by the King himself his gift under the great seal, in 1646, and ratified thereafter in Parliament; who by his said gift had power to elect and choose such clerks as he pleased himself; which clerks so chosen by him, were to bruik ad vitam: and, conform to this power, he nominated this pursuer clerk, who ever continued in the peaceable possession thereof till the act of restitution of Bishops in 1662; at which time the defender, most unorderly thrust him out, and placed in his own son, who has ay possessed sinsyne.

Then the Bishop alleged,—That his right was null, and so could not be declared, because he was placed a non habente potestatem to place him: in so far as, esto argumenti causa, the gift granted to Commissary Hay had borne an express power to place a clerk, the same was only stilus curiæ, and could operate nothing in prejudice of the King, (who at that time, notwithstanding of the gift, might have disposed on the said clerkship to whom he pleased,) nor of the Bishops, who, by the act of restitution, were stated in his place: and they called to mind a practique in 1647, betwixt the Bishop of Galloway and ———, where the Bishop having empowered his Commissary to choose and admit procurators, it was found, by this power, he could not enter a procurator fiscal. But 2do, The dispositive clause, in all writs, (whether they be charters, gifts, or other writs,) being that which regulates the whole tenor and strain of the writ; where any thing is omitted out of the same, it is noways understood to be transmitted at all. (Vide Cujacium, pagina 150, circa medium.) But so it is here, there is no mention in the said clause of the gift of the Commissary clerkship, or of any power of establishing a clerk.

To thir two it was answered,—That it was sufficient the power was in any part of the gift. They were to have the Lords' answer on this.

Then alleged,—3tio, Absolvitor from this pursuit, because it is offered to be proven, that the pursuer has homologated the right of the said office, inherent in the defender's person, and has past from any pretended right of his own; in so far as he, by a subscribed minute betwixt him and the Bishop, has acknowledged the Bishop to have a good right, and has renounced his own claim, and condescends to deliver up the registers and other writs concerning the office, providing the Bishop pay him by the space of three years, 300 merks yearly; which the Bishop is content to do. Vide Dury, 17th February 1624, Thomson.

To which it was answered,—That for the Bishop to found on that minute, is propriam turpitudinem detegere; because it is offered to be proven, that when the act of restitution of Bishops was making, the defender sent frequently for the pursuer, and showed him how the King and Parliament were about the restoring of Bishops, in integrum, to all their former privileges and concessions, and the cassing and annulling of all provisions to offices procured in the time of the troubles. Item, presently on the making of the act, he caused double the same; only he kept out the salvo that was made in favours of commissaries, their clerks, and others who were in possession of their offices; and so mutilated, did show it to the pursuer, and told him that was the act made: which false and disingenuous representation was the impulsive cause and inducement that moved the pursuer to enter in that contract with the Bishop; and he never discovered his error till the act was published, bearing in gremio a reserve ut supra.

It was replied,—This was ignorantia juris, which excuses none, and can never liberate him of the minute, he being then major, sciens, et prudens, and a man that knew the law of the kingdom, at the least should have known the same.

The Lords found the reason relevant to be proven, either by the Bishop's oath or the witnesses present at their communing.

Advocates' MS. No. 54, folio 78.