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George Bannerman v Malcolm of Balbedie. [1682] 3 Brn 427 (8 March 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Brn030427-0626.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 8 March 1682
George Bannerman v. Malcolm of Balbedie
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Mr George getting a new gift from the king, of being chamberlain of the king's rents in the Stewartry of Fife; Balbedie competes on an old gift he had, clad with possession. Alleged,—He had lost it; because he had not taken the test. Answered,—This office was not comprehended nor expressed in the Act 1681, anent the test. Replied,—The general clause includes it. Duplied,
—He was in bona fide not to guess or divine that; and he is now willing to take the test; and res adhuc est Integra, et est locus pænitentice.
The Lords found, that, since he had not taken it before the 1st of January 1682, fixed by the Act, he had lost his office: and would not allow him to take it now.
This extension is dangerous; and, a paritate, may reach commissioners of excise, baron-bailies, (both which were once spoken of in the Parliament to be included, but were de industria omitted, that they might be free of the test;) and many others, who do not look on themselves as in public offices.—Balbedy's son had the survivance of his father's place. Quær, since the father is now deprived, if he may not enter to it, upon his offering to take the test, as if his father were civiliter morluus, and so exclude Mr George his posterior gift.
