Found that a grant of the office of Clerk. Register could not exceed one life.
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The Lords advised the competition, which arose for the clerkship, on the death of Charles Oliphant, between my Lord Tarbet, as Register, and Mr James Oliphant of Lanton, son to the said Charles, and conjoined with him in the same gift; who alleged, That though his father had restricted the gift, yet he could not renounce the jus quæsitum to him; and though conjunctions were against the act of Parl. 1685, yet survivances were not; and albeit they be odious in law, yet there are many instances in Scotland, as in commissaries, and in clerkships. Tarbet adhered to the Lords' act of sederunt, made on the admission of Charles Oliphant; and that the Lords had caused him to elect, and he had chosen rather to officiate himself, and had restricted the effect of his gift, and prejudged his son; who, being his heir, could not come against his father's deed; and that survivances were odious, and reprobated in law, as inducing votum captandæ: So these was no proper survivance here, but only what was necessarily consequential to a conjunct gift; and if survivances were once allowed, there might be an entail of Lords of Session, clerks, &c. for 100 years to come, which was as unjust as the granting heritable offices, which was reprobate by the 44th act 1455: And by the canon-law expectativæ beneficiorum were condemned, et beneficium non vacans non poterat conferri; and all gifts of offices behoved to express the modus vacandi. The Lords unanimously found Mr James had no legal right by that gift, and therefore preferred the Register and his deputes; and found there was a vacancy by Charles's death. The Lords would gladly have inclined to favour Mr Oliphant, if law would have allowed it.
Fol. Dic. v.2. p. 291. Fountainhall, v. 1. p. 578.
