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.
Sir John Malcolm of Innerteil v. The Earl of Roseberie and the Officers of State
Date: 27 June 1704
Click here to view a pdf copy of this documet : PDF Copy
The deceased John Malcolm of Balbedy, father to the said Sir John, had the gift of the chamberlainry of Fife from King Charles I. in 1644, and got it thereafter renewed by Charles II. in 1664 to himself, and, after his decease, to the said Sir John his son. Balbedy having refused the test in 1681, the said office was conferred on Mr George Bannerman; and he dying after the Revolution, King William gifted it to Sir John Dempster of Pitliver; and, on his death, Queen Anne gave it to the Earl of Roseberie durante beneplacito. Sir John Malcolm, having qualified himself by taking the oaths to Queen Anne, raises a declarator against the Earl of Roseberie and the officers of state, to hear and see it found and declared, that he has the only good and undoubted right to the said place, and ought to be put in possession thereof, being now qualified according to law.
Alleged for Roseberie,—That Sir John had lost and amitted the said office by his father and ‘his own not taking the test, and, since the Revolution, by not taking the oath of allegiance to King William, conform to the appointment and limited time of the 6th Act of Parliament 1693, declaring all persons not taking the said oath should, ipso facto, lose their offices; and accordingly the same was filled on the vacancy, by putting in the persons above named into the same.
Answered,—His father's omission to take the test could not prejudge his reversion and survivancy, seeing he could not regularly enter during his father's lifetime; and he survived the Revolution several years, during which time he could not have access to the exercise of that office. Neither is it any objection or obstruction, that he did not qualify himself sooner, because he, having the gift during life, might claim it, or make use of it when he pleased; even as a tutor of law may enter when he will, and remove a tutor-dative from the office. And the Act of Parliament 1693 speaks only of them who were actually in office, or should thereafter enter to the exercise thereof, that they be deprived if they officiate before they take the oath; which is not his case: for he had only a reversion, survivancy, and claim, and did not attempt to exerce till he had first qualified himself; and he was not seeking any of the bygone profits or emoluments of the place, but only in time coming.
The Lords thought, if there had been a small interval of time betwixt his father's dying and his qualifying himself, in order to his succeeding him in the office, there might have been something pled for Sir John; but he having lain off for eight or nine years after his father's decease, without qualifying, there was no reason that King William should have waited his leisure so long ere he should declare his acceptance: and therefore the same being filled then by Pitliver, and now, since his death, by my Lord Roseberie, they repelled Sir John's declarator as irrelevant; and assoilyied therefrom; and preferred Roseberie's gift and letter of chamberlainry.
Upon the pronouncing of this interlocutor, Sir John appealed to the Parliament, and protested for remedy of law against the injustice and iniquity of the sentence.
