Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
Date: The Lord Register
v.
Sir William Primrose
28 January 1680 Click here to view a pdf copy of this documet : PDF Copy
There is a bill given in by the Lord Register against Sir William Primrose, bearing, that he, as clerk to the notaries, did not attend, nor call in for the notaries' protocol-books yearly, or after their decease. alleged,—The 22d Act of Parliament 1617 does indeed ordain the notaries to bring in their books to the clerk of register and his depute, but not the clerk to call for them.
The Lords, on the 6th February 1680, found he was obliged to attend personally, and not by a deputy; seeing he was not delegatus principis, qui potest subdelegare, but only the clerk register's depute: he could not substitute, notwithstanding that his gift empowered him, unless they could make it appear that it hath been an immemorial custom to serve by a deputy. As also they ordained Craigie and Newton to examine him if he understood the said
employment. All this was done to oblige him to demit; yet we see, in the Clerks of Session, who are not the King's delegates, but only the clerk of register's, they depute the inferior clerks under them; so that the axiom is not infallible. Again, on the 19th of February, the Lords found, in respect his father had given him the said clerkship, with power to him to call in for the said protocols, and an obligement on him to relieve his father of the hazard of not doing it, that the same imposed a necessity upon him to do it; though, in sense and common grammar, these words,. “with power,” import no necessity, mandate, or duty, but an arbitrament and faculty to be done or omitted at pleasure; only the rest of the points of his duty run in the same strain, “with power,” &c. And, in respect he had neglected to call in for them these thirteen years, therefore they deprived him. It is true, by not calling for them, the lieges, in many cases, suffer irreparably, as in orders of redemption, in intimations, and instruments ad remanentiam, and many other instruments, which cannot be made up like seasines, which can be found at the registers. Yet it was never customary for them to do it; and in such things error communis jus facere debet quoad bygones: and rational and indifferent men thought that a reprimand or admonition (as is to be used in the case of heretics,) for the future, might have been sufficient.
The electronic version of the text was provided by the Scottish Council of Law Reporting