Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1686 and 1687
Doctor William Eccles v. Sir James Anstruther's Heirs and John Wedderburn
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1686. November 24.—Mr William Eccles, doctor of medicine, his reduction and declarator against Sir James Anstruther's heirs, and Mr John Wedderburn of Blackness, clerk to the bills, is debated: and they clothing themselves with the decreet-absolvitor from his gift, as tuti exceptione rei judicatæ; it was Answered,—that was only in possessorio, which could not hinder his declarator of right in petitorio; and that sententia debet esse conformis libello; et, ultra id quod in judicium deductum est, potestas judicis excedere non potest,—l. 18 D. Commun. Divid.: and the mentioning of his title is of no moment, quia titulus debuit allegari, ad colorandam possessionem, that it was not clam, vi, nee precario. 2do, Bartolus, ad l. 12 D. de Acquir. et Om. Possess, says, In dubio, whether the petitorium be cumulated as well as the possessorium, standum est declarationi libellantis; and here the conclusion of Mr Eccles's bill, which is the regula regulans of the whole bill, bore only restitution to the possession of his office till his right were quarrelled, and he heard on all his lawful defences; and that though he had no warrandice on the granter's heirs, yet, per l. 11, § ult. de Act. Empl., pretium est ei restituendum, in case of eviction. But the President said to this, If one sell lands with warrandice only from his own fact and deed, if the distress and eviction arise aliunde, he will not be obliged to restore the price. It was likewise alleged, Mr Eccles was in Mr Hary Oliphant's case, (vide 30th November 1683,) by the quality of Sir James Anstruther's gift, which gave him the office not during his own, but during Sir William Bruce's lifetime. Vide 30th November 1686.
Vol. I. Page 430.
1686. November 30.—The case of Eccles and Wedderburn, mentioned 24th current, was advised. The Lords having considered the petition given in by the said Mr William Eccles, and Blackness's answer, and the decreet-absolvitor following thereon, they found there was no more then under consideration but the possession; and that the point of right could not be thereby determined: and therefore reduced the said decreet, and reponed Dr Eccles against the same, and found his defences, as to the point of right, entire: but, as to his conclusion of declarator against the Register, Balcaskie, and the clerks of the bills, referred it to Forret and Carse to agree them, either by restoring him to his place, with the bygone profits, or giving him a sum of money for the same; and decerned against Sir John Anstruther's heirs in absence, none appearing for the minor. Vide 29th November 1687.
Vol. I. Page 432.
1687. November 29.—The case of Dr Eccles against the Register and the Clerk of the Bills, mentioned 30th November 1686, was farther debated. The defenders Alleged,—1mo, The parcelling out and multiplying of new offices in the bill-chamber multiplied expenses, and extortioned the lieges. But this would put out James Sinclair, as well as the Doctor. 2do, That Blackness was a singular successor, for he knew, before his entry, Mr Eccles's right. 3tio, That the pursuer had lost his place by his not attendance; and though he had a license, from Sir James Anstruther, to go abroad and study, yet, so soon as he died, it expired, being mandatum personale quod morte mandatoris extinguitur; and he should instantly have returned home, which he did not: and for this non-attendance, Sir William Primrose was deprived from being clerk to the notaries: and they also cited Commissary Fleming and Nimmo's case, from Stair, 11th July 1672.
Answered,—Sir James Anstruther's dispensation did not die with him; for his gift lasted all the days of Sir William Bruce's lifetime; and though residence be essential in offices, yet Abbas Panormitanus, cap. extra, de Clericis non residentibus, requires two conditions: 1mo, That there be lesion and prejudice by the absence. 2do, That they be moniti et requisiti revertere: none of which can be subsumed here. And Sir William Primrose was not deposed for non-residence, but for not bringing in the notary's prothocal books, conform to the 22d Act Parl. 1617. And it is by the injunctions of the books of Sederunt that Commissaries must reside.
And yet this was not required by the decision, 6th February 1666, Archbishop of Glasgow against Logan.
This case being submitted to the President, the Doctor got 2700 merks for his 4000, and the intermediate profits.
