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Petition [of] James Oliphant of Langtoun against Mr Robert Alexander, read and refused, leaveing the petitioner to insist in any action competent to him before the judge ordinary as accords in manner following.
Anent the petition given in to his grace her majesties' high commissioner and the right honourable the estates of parliament by Mr James Oliphant of Langtoun against Mr Robert Alexander, one of the principal clerks of session, mentioning that where it pleased the late sovereigne King William, of ever glorious memory, by his gift under the great seal to nominat and ordain the deceased Charles Oliphant, the petitioner's father, and him, and either of them the longest liver successive, the one after the other alternatim, but no wayes jointly at the same time, to a place of a clerk of the session and parliament in the equal half of one of the three offices, and that dureing the life of the longest liver of them two in the place of Mr William More who was conjunct with Sir James Dalrymple in the said office, so that one of them might only enjoy the office at the same time, according to the tenor of the act of parliament jM vjC and eighty five, as the said gift of the date the fifeteenth day of June, jM vjC and ninety one years bears, whereby it is manifest that the foresaid gift and that, by the advice of the best lawyers, was formed and calculated to consist with the foresaid act of parliament to which it expressly referrs. Likeas, in view thereof, his said deceased father and he did really pay for it the sum of seven thousand merks, and farder became bound to pay to the said Mr William More the sum of two thousand merks yearly dureing his life, so that at this day it hath coast the petitioner upwards of twenty eight thousand merks and is still a growing burden dureing Mr William More's life. Nevertheless, when the petitioner's said deceased father and he craved admission upon their said gift it was alleadged they could not be both admitted in terms of the gift in regard of the foresaid act of parliament, and thereupon the lords sustained their gift only in favors of one of them, and the petitioner's deceased father, being appointed to make his election, he made the same in favors of himselfe. But all this haveing been done without the petitioner's haveing been called or any wayes concerned, when his father happened to decease within ane year and an half thereafter, he again applyed to be admitted by vertue of the foresaid gift, alleadgeing that what had happened upon his father's first application or the election he made in complyance with the lords' deliverance could not at all touch him or take from him his jus quesitum of the said gift, since he neither had been called nor compearing. Secondly, that now by the said gift the surviveance there provided in the petitioner's favors did evidently take place upon his father's decease, and the foresaid act of parliament could not now be obtruded, seeing that it was he alone that craved or could be admitted. Thirdly, that the surviveance provided in the said gift and now takeing place in the petitioner's favors was not against any law or act of parliament but both lawful and usual. Fourthly, that it was a visible and intollerable hardship that the petitioner's father and he should have payed and engaged in such a sum in the faith of the said gift granted to them both, as said is, and yet have the samen cut off as to them both by his simple decease which happened within less than an year and an half, and now besides the foresaid seven thousand merks advanced and the bygone yearly annuity of two thousand merks which hath now run these eleven years, the samen is yet current to his utter ruine and undoing. And fifthly, that it had been far more eligible on the petitioner's part that the lords had declared their foresaid gift to be null than to have restricted it in manner foresaid, since upon the declared nullity the petitioner might have had repetition and saved himself from the foresaid growing and excessive burden. But notwithstanding of all these alleadgeances, it pleased the lords to refuse the petitioner's gift and admission and declare the place simply vacant by his father's decease upon no other ground but because they had predetermined themselves by the act of sederunt upon his father's admission and so they adheered to their interloquitor past then without considering or declaring the validity or invalidity of his gift, which, being so heavie a grieveance, the petitioner was necessitat to protest for remeid of law to the king and parliament. And thereupon in the year jM vjC and ninety five he insisted in parliament upon his said protest and got the same committed and a report upon it. But this report pointing only by way of expedient at the then lord register, against whom the petitioner thinks he needs not insist, but on the office it self and the fruits thereof to which a legal and formall gift under the great seal doth naturally carry him. The petitioner has hitherto with great patience suffered one to possess himself of his office and enjoy the fruits thereof these eleven years bygone but, not being able to support the excessive burden any longer of Mr William More's annuity, which by this time has gone near to ruine him, he does now humbly offer his said gift and craved that the same might be read and he admitted thereupon, and there is no injury done to Mr Robert Alexander, the present incumbent, since by his enjoying the fruits of the office these eleven years bygone he has much more than doubled the sum he payed for it. And therefor, craveing his grace and their lordships to consider the premisses and to allow the petitioner's gift to be read which constitute him a member of their honourable house, and him admitted thereon; and if there remain any difficulty with them after hearing the same, that lawyers may be allowed to be heard thereupon in plene parliament and for that effect to declare the lord register and the said Mr Robert Alexander to be thereto cited apud acta, as the said petition and desire thereof bears. For instructing whereof the petitioner produced the foresaid gift of the date abovementioned, written to the great seal and registrat the thirteenth day of July, jM vjC and ninety one by Sir William Kerr and sealed at Edinburgh the said day by Alexander Inglis, as the same more fully bears. Which petition and desire thereof, being this day read in presence of his grace her majesties' high commissioner and the said estates of parliament, and they being therewith and with the foresaid gift produced for instructing the same, well and ripely advised, they refused and hereby refuse the desire thereof, leaving the petitioner to insist in any action competent to him before the judge ordinary as accords. Extract.