[1704/7/56]*[print] [email] [cite] [preceding] [following]
Petition of James Oliphant of Langton against Mr Robert Alexander, read and refused, leaving the petitioner to insist in any action competent to him before the judge ordinary as appropriate in manner following.
Anent the petition given in to his grace her majesty's high commissioner and the right honourable the estates of parliament by Mr James Oliphant of Langton against Mr Robert Alexander, one of the principal clerks of session, mentioning that where it pleased the late sovereign King William, of ever glorious memory, by his gift under the great seal to nominate and ordain the deceased Charles Oliphant, the petitioner's father, and him, and either of them the longest liver successively, the one after the other alternately, but no way 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 during the life of the longest liver of them two in the place of Mr William Muir 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 of 1685, as the said gift of the date 15 June 1691 bears, whereby it is manifest that the foresaid gift and that, by the advice of the best lawyers, was formed and calculated to be consistent with the foresaid act of parliament to which it expressly refers. Also, in view thereof, his said deceased father and he did really pay for it the sum of 7,000 merks, and further became bound to pay to the said Mr William Muir the sum of 2,000 merks yearly during his life, so that at this day it has cost the petitioner upwards of 28,000 merks and is still a growing burden during Mr William Muir's life. Nevertheless, when the petitioner's said deceased father and he craved admission upon their said gift it was alleged 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 favour of one of them, and the petitioner's deceased father, being appointed to make his election, he made the same in favour of himself. But all this having been done without the petitioner's having been called or in any way concerned, when his father happened to die within a year and a half thereafter, he again applied to be admitted by virtue of the foresaid gift, alleging that what had happened upon his father's first application or the election he made in compliance with the lords' deliverance could not at all touch him or take from him his sought right of the said gift, since he neither had been called nor compearing. Secondly, that now by the said gift the succession there provided in the petitioner's favour did evidently take place upon his father's death, 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 right of succession provided in the said gift and now taking place in the petitioner's favour was not against any law or act of parliament but both lawful and usual. Fourthly, that it was a visible and intolerable hardship that the petitioner's father and he should have paid and engaged in such a sum in the faith of the said gift granted to them both, as said is, and yet have the same cut off as to them both by his simple death which happened within less than a year and a half, and now besides the foresaid 7,000 merks advanced and the bygone yearly annuity of 2,000 merks which has now run these eleven years, the same is yet current to his utter ruin 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 repayment and saved himself from the foresaid growing and excessive burden. But notwithstanding of all these allegations, it pleased the lords to refuse the petitioner's gift and admission and declare the place simply vacant by his father's death upon no other ground but because they had predetermined themselves by the act of sederunt upon his father's admission and so they adhered to their interlocutor passed then without considering or declaring the validity or invalidity of his gift, which, being so heavy a grievance, the petitioner was necessitated to protest for remedy at law to the king and parliament. And thereupon in the year 1695 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 itself and the fruits thereof to which a legal and formal gift under the great seal does 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 Muir's annuity, which by this time has gone near to ruin 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 paid for it. And therefore, craving his grace and their lordships to consider the circumstances and to allow the petitioner's gift to be read which constitutes 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 plain parliament and for that effect to declare the lord register and the said Mr Robert Alexander to be thereto cited according to the act, as the said petition and desire thereof bear. For instructing whereof the petitioner produced the foresaid gift of the date above-mentioned, written to the great seal and registered the 13 July 1691 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 the presence of his grace her majesty's 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 appropriate. Extract.