Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
John Murray v. Sir Walter Seton
Date: 27 January 1699
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Sir Walter Seton, advocate, having procured a gift from his Majesty to be Commissary Clerk of Edinburgh, vacant by the death of Sir Patrick Aikenhead, last clerk, and intending to present it to the commissaries to be installed; Mr John Murray, advocate, and brother to the Laird of Liviston, gives in a bill of advocation to the Lords, for stopping his admission till he were heard on a prior gift obtained by him when my Lord Tillibarden was secretary. Which being given up to Sir Walter to answer, he alleged,—The said gift, though prior, could never compete with him, being null, as wanting verum modum vacandi; for though it bear to proceed on Sir Patrick Aikenhead's demission, yet truly he had not demitted at that time, but continued in the possession of the office long after; and Sir Patrick's letter to the secretary does noways import an actual demission, but only that Mr Murray and he had agreed towards his demission; which might be retracted: and that there was locus pœnitentiœ is evident; for, sundry months thereafter, they renew their communing, and, on new terms, Sir Patrick signed a demission ten days before his death.
Replied,—Sir Patrick's obligation to grant a demission was equivalent to an actual demitting, because he might have been compelled thereto.
Duplied,—The letter did not so much as amount to a personal obligation; and, though it had, the gift was still null, because the modus vacandi must always precede the gift; and a subsequent cause can never validate the same in competition with one more formal.
When the action was called,—Mr Murray shunning to produce his gift, and debate in causa, but rather let it pass in absence, without dipping on the validity of the two gifts,—the Lords refused his bill of advocation; but Sir Walter craving the Lords would recommend him to the commissaries to admit him, the same was declined, and the commissaries left to do as they would be answerable.
