Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Alexander Wedderburn v. James Ramsay
Date: 16 July 1703
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Alexander Wedderburn, principal clerk of Dundee, against James Ramsay, clerk-depute there, for removing him from the said office. Ramsay's defence was, I have my gift, by act of the town-council, ad vitam et culpam, and so can-not be put out without some malversation or fault. And, for proving thereof, he produced an act of council in January 1695, establishing him in that office during life j and that, by Mr Wedderburn's own admission in January 1696, it appears his gift is burdened with Ramsay's being his depute, and is expressly relative to the foresaid act of town-council, conferring the said office on Ramsay during life; and to be a ratification thereof in a head-court held in April thereafter.
Answered,—The Wedderburns, for fourteen generations, had been clerks of Dundee, and always had the nomination of their own deputes, who precariously depended on them, and were during pleasure; and so was this Ramsay during all the time of the pursuer's father's life. And the act founded on in January 169-5 is destitute of all manner of warrant: notwithstanding, by an act of the town-council of Dundee, all their minutes are ordained to be subscribed by the provost, or other preses of the meeting for the time. And Mr Wedderburn does not so much found on his admission in 1696, as on a gift of the said place to him in his father's lifetime in 1685, allowing him to remove the depute, in case they could not agree. And the town-council, by no posterior act, could derogate from that right, neither can he be deprived of it without some fact or deed of his own, importing his consent; which cannot be instanced; for the minute adjected to his own admission is no deed of his, neither did he ever ratify or homologate the same; nor was the deputation ever extended in the terms of that minute; and though Ramsay has continued in possession of the office now these seven years, yet it is not by virtue of that clause, but merely by the principal clerk's tolerance and connivance: and though magna est consuetudinis authoritas, yet non est adeo sui valitura momento, ut vel rationem vincat aut legem.
Replied,—No regard to the gift in 1684, because it was before the office vaiked, Mr Wedderburn's father being then alive, and in officio, and so was conferred in tempus inhabile; and though the warrant of the Act 1695 be not extant, yet the principal clerk acknowledges he once saw some warrants, but does not particularly know what tenor they were of; and it appears there were many minutes of acts then unsigned by the preses; and abstracting from that act in 1695, the principal clerk's own admission bears Ramsay's right in eodem con-textu and corpore juris, and is margined with his own hand,— “Act in favours of James Ramsay;” and he cannot both approbate and reprobate the same act. And the clerks of session, though the register die or be changed, yet the successor never quarrels their gifts they had during life; and if there be any defect in Mr Ramsay's admission, the principal clerk's right eodem laborat vitio.
The Lords sustained Ramsay's defence, and found him not removable without a fault. See Dury, 16th July 1642, Elder against Mercer.
