6 George McKenzie his ma'ties advocat and sir holds that since the copper was imported by the Patrick Home advocat to have letters direct at officers of the Mint and the king by the act of his instance for sumonding of such witnesses indemnity haveing pardoned the cryme albeit and probatione and als to produce such writts in respect of the impressione the mony belong rights reasones and documents as he had or to the king Yet it must be with deductione of would use for proveing therof against the s'd the value of the copper and workmanship: for day with certifica'one c. Therafter it was far the cryme being pardoned the law makes nee der alleadged by the s'd defe'rs pro'rs above distinctione whither the acquisitione was bona named that the defender can not be lyable for or mala fide especiallie wher the species is rethe profits of the copper coyn hes been possest duceable to the first mass and the defe'rs to have by the officers of the Mint as a perquisite of allowance of expenss of the workmanship bether office which immemoriall possessione most cause the work was profitable to the king secure the defenders these profeits being bona seeng the extrinsick value of the copper *fide precepti fructus et consumpti' and ther coyned is near double the extrinsick value was never any count made of the copper coyne thereof Lykeas the defenders imployed many 20 Esto the profits of the copper coyn which other people in the work about fourtie or therexceed the warrands should belong to the king by besyds the servants in the Minthouse It yet the defenders can not lose the copper which was triplyed be his ma'ties advocat and sir was coyned nor the workmanship therof ther Patrick Home advocats for his highness intebeing onlie ane access as to the quantity in the rest that the king does not pretend right to the ordinary administra'one of ane office and if copper that was coyned more than was allowthey should not have allowance of the copper ed by the warrands by vertue of the specificaand workmanship it would be a confiscatione tione but by vertue of accessione That the arrysing upon a delinquencie against which copper which is the matter should follow the the defenders is secured by the act of indem- king's stampt and impressione as being the nity To which it was replyed be the s'd sir more precious and is that which makes the George M'Kenzie his ma'ties advocat and sir coyne to pass at such ane raite worth and Patrick Home advocat for his highnes interest value As in the case of a pictur drawn upon that ther is no law or custome allowing copper ane wy' mans cloath and table the cloath coyne to the officers of the Mint as perquisit and table will alwayes follow the pictur as the due to ther office ffarder then what is allowed more precious Libro secundo de institutione by warrand to be coyned and the proffeits de acquirenda rerum domini,' page therty arrysing therby cannot be s'd to be fructus fourSi quis in aliena tabula pinxerit And bona fide percepti et consumpti' for seeng the defeuders can not have allowance for the they knew that ther was only six thousand mass of the copper seeng they ware in pessima stone allowed to be coyned by the warrands fide' to coyn more then was allowed by the They ware in pessimo dolo to coyne more then warrands and what ever right have been prewas allowed and the defenders cannot have al-tended if the copper had been brought in by a lowance for the value of the copper or expenss stranger and that the officers of the Mint of the workmanship that was coyned more then had adhibit the kings stampt or impressione to was contained in the warrands For what was it without the owners knowledge that in that coyned more being unwarrantablie coyned caice the owners might have craved allowance it inost belong to the king quia versabantur from the mass of the copper But that can ⚫ in re licita' and they wer in pessima fide being never be pretended in this case wher the copthe kings servants and intrusted by him to ap- per was broght in and coyned by the officers ply the kings jrons and impressions to anie of the Mint themselves And seeng that they more copper then was allowed by the warrands knew ther was noe more allowed to be coyned And the act of indemnity as it does not secure but the six thousand stone so that they wilthe defenders from the cryme for the reasones lingly and witingly have coyned more then above mentionat farr less from the restitutione was contained in the warrands allowed by the of the valwe of the copper that was coyned law They ought to have noe allowance for more then was allowed by the warrands and workmanship upon the same ground as also that without deduc'one of any thing upon the they being the kings servants and haveing salccount of the price of the copper or expensses laries they ought to have noe allowance for of the workmanship which they aught justly to workmanship And if it ware otherwayes saslouse being in re licita And oppones the former tained it would be a way to incurradge the interloquitor wherin this is allready decided officers of the Mint in tyme comeing to comWherunto it was duplyed by the s'd defenders mitt the greatest abuises imaginable for they pr'ors above named that the fors'd alledgeance would alwayes coyn more then was allowed stands relevant notwithstanding of the anss'r for by warrand if they knew they ware to have insecificatione (sic orig.) wher the species is re- allowance for the value of what was coyned duceable to the former matter The right of the more then was allowed and ther dwes of coynspecies belongs to him who had right to the mat-adge albeit therafter should be discovered so and albeit in this caice copper money be reducable to its first mass yet in respect of the publict interest it must remaine alse currant money but the common ground of law still 6 they should lose nothing but the profits that they designe to get to themselves And this war to incurradge the abuises and malversatioues in relatione to the Mint instead of sup pressing and punishing the same and seeng | nemo debet lucrari ex suo dolo' even in cases betwixt privat parties much less in maitters relaiting to the Mint Wherunto it was quadru plyed be the defenders pro'rs a'named (adhering to their former alledgeance and duply) that they are not here in the case of acces sione And that instance of ane picture to which the matter did rede was a singullar di cisione inconsequentiall to other laws and the ground of it was the excellencie of the picture and it does not quo ad that with the present case To which it was quadruplyed by his ma'ties advocat and sir Patrick Home for his highness intrest That this was cleare in the case of accessione which by the law was one of the wayes of acquiring the right and dominion of a thing and ther was noe singularety in the case instanced It being a certaine principle in law and the oppinion of all the lawers that hes written upon that subject. Whilk alledgeance abovewritten and proponed for the saids defenders replyes duplyes triplyes quadruplyes and quintuplyes above mentioned inade therto Being all at lenth heard red seen and considered be the saids lords and they being therwith weill and ryply advysed The saids lords sustained the forsaid alledgeance as to the deductione of the pryce of the copper boght by the defenders (more nor the six thousand stone allowed) preceeding the act of indemnity They alwayes condescending upon and proveing the quantities of the said copper and the pryce they bought the same at betwixt and a certaine day now by gane Which the saids lords assigned to the saids defenders and ther pro'rs above named for that effect with certifica'ne c. reserveing to his majesties advocat to be heard against the probatione but refused to allow the defenders the pryce of any copper coyned by them since the act of indemnity and alse refuised to allow any expenss of workmanship done by the officers of the Mint or servants wnder them in the Minthouse But declaired if any thing be dwe and resting to extrinsick workemen upon that account they will allow the same out of the first end of the soumes to be recovered from the defenders Therafter the said sir George M'Kenzie his ma'ties advocat and sir Patrick Home advocat for his ma'ties interest declared they insisted upon the secoud article of the forsaid lybell viz. for payeing of the forsaid soume of twelve shilling Scots for each unce of bullione payed in be the marchants yearly the years above mentionat extending to the soume of three hundred and eightie four thousand pound Scots mony Against which it was alledged be the said earfe of Lauderdale defender his pro'rs above named that the master of the Mint is the persone lyable for the bullione and he is not compeiring and the generall is not lyable for the bullione but the master as appears by the act of parliament which bears that the officers of the Mint shall be comptable conforme to ther recepts and the master receaves the bullione from the marchants and grants recept y'of And holds VOL. XI. compt to the exchequer for the same And the king hes taken particullar securety from the master of the Mint as appears by a band produced granted be sir John Falconer and ane other be his father wherin they have found catioune And not only did sir John Falconer as master of the Mint make compt formerly to the exchequer but his compts are now at this present tyme before the exchequer Wherunto it was replyed be the said sir George M'Kenzie his ma'ties advocat and sir Patrick Home advocat for his lignes interest that by the act of parliament in the year 1m. vi c. sixtie nyne concerning the bullione It being therby left in the optione of the marchants importers of the goods therin mentioned either to pay bullione in specie or to pay money for the same at the raite of twelve shilling per ounce And the mony so payed is appointed to be delivered to the generalls and master of the Mint by the tacksmen and collectors And the generalls and master are obliged to import the stock of bullion themselves and to coyn the same so that it is clear by that act that the generalls als weill as the master is comptable for the twelve shilling payed in for every ounce of bullione and not only is the generall lyable in this particullar case and all other things relaiting to ther own office as generalls, but are lyable in solidum for all the abuses and malversationes committed by any other officers of the Mint And that for these reasons Frimo They are lyable virtute officii by vertue of the office as generalls who is his ma'ties supream officers in the Mint especially seeng that by ther gift they have power to comptroll and redargwe all other officers of the Mint And with ane ample power to hold courts and to punish delinquents which clearly evinces that not only the generalls hes the supream power and superintend ence over all the rest of the officers of the Mint but also ought to have a particullar care and see every man performe his office faithfully and in case they doe not to punish them accordingly and to represent to his ma'tie if any of them malverse in ther office that they may be receaved (sic.) and others more faith-full and dilligent put in ther place And yet notwithstanding the generalls did not only grossly malverse in things relaiting to ther own office but ware altogither carles and supin neglegent in seeng the other officers of the Mint discharge their office faithfully and in many particullars ware shairers with them in ther unjust profits. And first to the copper coyn Albeit his ma'tie allowed only six thousand stone to be coyned at two copper jurnayes Yet ther was neir fourtie thousand stone coyned so that y' was thretie four thousand stone coyned without a warrand contrar to express laws dischargeing the same under the severall punishments by which the countrey was abuised with copper mony Ther being almost noe mony left in the countrey but copper mony which was ane infinit prejudice to the cuntrey and ruine of trade For the tyme that they should have spent in coyning of bullione for P withstanding they applyed it to ther own privat use And albeit by the law the melting down of the current mony of the kingdome is discharged under very severe penalties yet notwithstanding the officers of the Mint did melt down many thousand of rex and leg dollers and doucatdouns to the great prejudice of the kingdome and ruine of trade so that it is almost a wonder ther should be any mony in the kingdome All which abuises and malversationes the generalls of the Mint by vertue of ther of his ma'ties use and the use of the marchants was for many years spent only in coyning of copper mony for ther own advantadge off which the generalls did take the greatest part of the benefit to themselves Nixt wheras his ma'tie appointed twentie thousand marks as a stock for buying of bullione which might have been coyned and changed twenty tymes in a year and which the generalls should have seen done yet ther was noe bullion bought with that stock of mony Albeit the generalls and master did most unjustly exact the a'rent officeis should have looked to and rectified and the twentie thousand marks from his ma'tie as punished the transgressors which they were so if the stock had been imployed yearly for buy- far from doeing that almost in all the fors'd ing of bullion As also albeit by the act of particullars they ware sharers with the officers parliament the twelve shilling payed in by the of the Mint themselves in the unjust gain and marchants in place of every ounce of bullione profite that did aryse by these abuises and malshould have been employed for buying of bul-versationes And to all these gross abuises and lion Yet notwithstanding the generall and malversationes the earle of Lauderdale supermaster did not imploy it for buying of bullion aded the unjust acting of new payment of the but applyed it to ther own pryvat use And same years sallarie and brybery in taking six albeit by the laws of this kingdom the mony is hundred pound to get sir John Falconer's unjust appointed to be of equall weight and finness and exorbitant accompts from the exchequer he with the mony of England yet notwithstand- being then ane officer of state his ma'ties theing it hade been minted farr below the finness saurer deput and ane of the commiss'rs of the of the standart And albeit the officers of the thesaurie And oppression in extorting bands Mint ware only allowed to work upon the re- from the other officers of the Mint for casualemedies in case of casualety Yet they have tyes that did no wayes belong unto him but to alwayes industriously wrought upon the re- his ma'tie and did so far abuise his ma'ties aumedies so that the Scots mony is less then thorety for his unjust ends as that he threatthe intended standart plat above two graines As ned them that if they would not yeild to his also albeit (sic.) be contrary to law and the na- desyre that he would persew them befor his ture of all Mints that any money should be maʼties privy counsill of designe to palliat and coyned without essey Yet notwithstanding cover his extortione under the pretence of shadthe greatest part of the money coyned in this dow of law And therfor the generalls not only kingdome under the pretence of chisellheads for the acts and deeds of malversatione done swips and scraps hes been coyned without any by themselves in relatione to ther oun office pott essey which is the occasion that ther is so but also for neglect to see the other officers of much baise mony in the kingdome As also albeit the Mint doe ther office as is clear from the his ma'tie for securety of the weight of the mony common Law Digest tit. de administratione rer. coyned in this kingdome had sent down a pyle ad civitat. pertinent. lege nynth par. eight of weights from England Yet notwithstanding Item rescripserunt curatorem etiam nomine the officers of the Mint made use of the dean of college tenere si intervenire et prohibere dum Guilds weights for receaving in of bullione potuit 2. They wer oblidged ex contractu viz. ex from the marchants which is four in the hun mandato which in law is defined to be condred heavier then the Scots pyle of weights by tractus in quo ipsius bonâ fide negotium aliquid which they troned the peaces so that they alteri gerendum comittit alter vero gratuito sus, made use of different and false weights in re-cript' but if the mandator have allowance or ceaving in with ane weight and giveing out with sallarie for his paines then tenetur ad exaetisi+ ane other And the lord Maitland ane of the mam dilligentiam et de levisima culpa as is generalls albeit he receaved the English pyle clear lege therteenth Cod. mandati libro quarto at London by warrahd from the king Yet he tit. thretie fyfth a procuratore dolum et crimen would never suffer it to be made use of in the culpam non etiam improvisum casum pres Mint but one the contrary when the Scots tandum esse juris authoritate manifeste declar pyle was reduced to the true English pyle of atur And Cicero in his oratione pro Mirænâ, weight be caused transforme them and bring in privatis rebus in quibus rem mandatam non them up to the dean of Guilds weights and modo malitiosius gesserit sui questus aut com continwed in makeing use of these weights be- modi causa verum etiam negligentius admittis fore the year 1m. vi c. eightie two that the summum dedecus quid enim recipis mandatum officers of the Mint came to be challenged for si aut ad commodum conversurus aut neglect. ther malversatione. As also albeit the profit of urus es cur mihi te offers ac meis commodis the exaltatione mony did belong to the king officio simulate offers et obstas In private yet the officers of the Mint did take it to them- charges sayes be if he that hes undertaken a selves As also albeit ther was a considerable commission or mandat does not only malitiously quantitie of bullion yearly lying by the offi- cary himselff or executs the commission for his cers of the Mint uncoyned the profeit therof own gaine and profeit, but also does it negle should have belonged to the king yet not-gently it is a great disgrace to him For why did be receave a mandat if he was only to make curring to the committing of a thift they are use of it to his own privat gaine and neglect or lyable in solidum lege sexta digest arbor. why did he offer himselfe or obstruct his con- furtum cersarum si plures eandem ac arborem stituents gaine or profite by making a shew to surtum ceciderint unum singulos in solidum doe him service when in the mainety me he was agetur as also they are lyable ex crimine pe doeing all for his own profite and gaine which culatus for abstracting of the publict mony does vary lively represent this case The ge- which ware the profits of the Mint belonging neralls under the pretence of serveing the king to the king and converting the same to ther and performing ther offices as they ware ob- own privat use As also they are lyable ex cri leidged by ther commissione either converted mine de residiis by wttering the same as publict the profits arysing by the Mint to ther own use money and not imploying the same as they or otherwayes neglected to see the other officers ought to have done And this is clearlykwayes of the Mint due ther duetie in ther rex'ive in the case of spullies and wrongous intromis offices according to the power and trust com- siones wher the parties are not only lyable for mitted to the generalls by ther gift As also restitutione of the thing taken away but also they are lyable ex contractu locationis et con- are all lyable in solidum To which it was dus ductionis which in law is defined to be con- plyed by the earle of Lauderdalls pro'rs above tractus bonae fidei quo prestatur usus rei et named that the king haveing secured himselfe opera certa mercede constituta So that the by takeing cation from the master of the Mint conductor who getes allowance and sallarie for the generall at most can be but lyable only bis pains and work is lyable ad exactissimam subsidarie after the master is discust and this diligentiam as is clear from lege vigesimo of the bullion is counted for the Exchequer octavo Cod. de locat. et conduct. libro quarto And the counts lying befor them and what titulo sexagesimo quinto in judicio tam locati ever the lords may doe to clear things for the quam conducti dolum et custodiam non etiam futur it war hard to make the generall lyable casum cui resisti non potest venire constat so for bygains To which it was triplyed by sir that both in the case of a mandator or conductor George M'kenzie his ma'ties advocat and sir operatorum They are lyable for exact dilli- Patrick Home advocat for his highnes interest gence in so farr as the law only excepts casus that albeit the Exchequer hes taken cautione fortuitos. Tertio as they are lyable ex officio from the master of the bullion for the kings and ex contractu so lykewayes they are lyable farder securetie Yet that does not liberat the ex quasi contractu as negotiorum gestores they generalls who are lykewayes lyable to the being intrusted by his ma'tie with the manadg-king by the law and what bullion they have ment of the Mint who by the law are lyable to the exactest dilligence Institut. libro tertio par. primo titulo vigesimo octavo quo casu ad exactisimam quisque diligentiam compellitur red dere rationein nec sufficit talem diligentiam adhibere qualem suis rebus adhibere solet si modo aliis diligenter (eo) commodius administraturus esset negotia Which is clear in this case seeng the king would have gotten fyve thousand in Scotland who would have discharged this office more dilligently and faithfully then they have done As also it is clear from these titles in the law de actione exercitoria et institoria that the exercitor Navis the master of the ship or the master who is proposed to be the manadger and overseeng of any particullar effair who are not only lyable for the exactest dilligence but are Lyable in solidum lege prim' id est de exercitor' action' par' finali libro decimo quarto titulo primo și plures navem exercient cum quolibet eorum in solidum agi potest. Quarto; they are lyable ex delicto vel ex quasi delicto vel ex lege Aquilia vel in factum for makeing up the loss and prejudice that any part hes sustained through ane others default as also wher ther are many parties concerned therein they are liable in solidum as is cleare titulo eodem lege quinquagesima prima par. in fine cum plures trabem alienam furandi causa sustulerunt quam singuli ferre non possunt furti actione omnes teneri existimantur quamvis subtili ratione dici possit neminem eorum teneri-neminem vero trabem sustulisse As also this is farder cleared in the case of thift wher many persones are con counted for to the Exchequer shall be deduced Which second article of the lybell above writ ten repeiled and insisted upon by his ma'ties advocat alledgeances proponed for the s'd earle of Lauderdale against the samen reply duply and triply above written made therto being all at lenth read heard seen and considered be the s'ds lords and they being therwith weill and ryply advised they repelled the fors'd alledgeance proponed for the earle of Lauderdale generall of the Mint in respect of the reply and triply made therto and ffand that the generall of the Mint is comptabl to the king for the bullion and the profeits arrysing therfrae reserving to the generall his relief against the master and other officers of the Mint as accords of the law And admitted the fors'd second article of the lybell to the persewers probatione and for proveing thereof the sd's lords assigned to the said sir George M'kenzie his majesties advocat and sir Patrick Home advocat for his majesties interest a certaine day now by gaine with certificatione Therafter the said sir George Mckenzie his ma'ties advocat repeated the third article of the fors'd lybell viz. That ther being allowed by the king to the generall and other officers of the Mint the a'rent of twentie thousand marks yearly as a stock to have been imployed by them for the buying of bullione and coyn ing the same and which might have been exchanged in gold and mony twentie tymes in a year And yet they have not imployed the stock for the use above mentioned and declared his ma'ties advocat insisted for payment of the that effect the said lords assigned to the s'd fors'd sonme of ane hundred and eightie thou- sir George M'kenzie his majesties advocat and sand and six hundred pounds as the benefit that sir Patrick Home advocat for his highnes intehath or would have arisen from the coyning resta certaine day now bygain for producing the and exchange of the fors'd stock the years count books relaiting to the stock and allowed above mentioned Against which it was alledged his ma'ties advocat letters of incident dilligence by the s'd earle of Lauderdale his pror's above for recoverie y'of with certificatione c. Thernamed that the master of the Mint being par- after the said sir George M'kenzie his majesticularly concerned in thearticle they must in- ties advocat and sir Patrick Home advocat for timat the persuite to him And alledged that bis highnes interest repeated the fourth article ther was noe act of parlia't that makes the of the said lyble viz. that whereas the mony of defender lyable for imployeing the stock of this kingdome is ordained to be of equall finnes twentie thousand marks in mainer forsaid and with that of England yet it is two grains les` the receaving of the a'rent can not make him then the standert of England ther being ane Jyable for twentie thousand marks remanes indented plate of silver cutted in the two pairte alwayes in the Mint as a stock for buy- wherof ane halfe lyes in the Tour of London ing of bullione in case of interuptione of and the other was sent doun hither and it being trad and for defraying the medeat charges of hard to be exact in observing the same fiunes the Mint And wheras the summonds bears that in the coyne ther was two grains of remedie the bullione to be bought with the forsaid stock allowed upon the unce of silver And the demight have been coyned and exchanged in gold fenders haveing allwayes coyned at two grains and mony twentie tymes in the year It is a less of every ounce and therby purposly imgreat mistake it not being possible to doe the basled the standert and these two grains same six tymes in the year and the a'rent of amounting to twelve shilling upon the pound the twentie thousand marks would not have de- of silver they aught not to have applyed the frayed the expenses of importing the bullione same to ther own use but must be comptable the exchange in some years being so high as it for the same to the king And in England the did exceed the a'rent of the s'd souine Wher-remedies doe belong to the king and declaired unto it was replyed be the s'd sir George his ma'ties advocat for his highnes intrest in M'kenzie his majesties advocat and sir Patrick sisted for payment of the fors'd soume of ane Home advocat for his highnes interest that his thousand nyn hundreth and twentie pounds majestie out of his princly care for the good yearly the years above mentioned of the profit of his subjects incress of mony in the king-arrysing by the diference of the coyne from dome and for advancing his own revenew by the the finnes of the indented standert plate with Mint having appointed twentie thousand marks the benefit of the remedies being twelve shilas a stock yearly to be imployed for buying of ling upon the pound of silver extending the bullione to be coyned and exchanged for his years ly bell to the soume of twentie four thouma'ties use and accordingly his majestie have- sand pounds Against which it was alledged be ing allowed to them in ther accounts the a'rent the s'd earle of Lauderdale his pror's above of twentie thousand marks yearly They ware named that the master of the Mint is cheetly in pessima fide to take allowance of the a'rent concerned in this article and he is not compeirof twentie thousand marks yearly and yet not ing 2do That the two grains in every unce alimploy it for buying of bullione as was des- lowed to the defender as a remedie The kings tinat by his majestie and y'for they aught to be advocat cannot subsume against him if he have lyable for that profeit might have arisen to his not exceeded the allowance 3tio That ther ma'tie if that stock of mony had been imployed could be noe damnadge sustained against the for the buying of bullione which might have earle of Lauderdale upon the fors'd account been coyned and exchanged twentie tymes in that the money is not of suffitient fynnes bea year as hes in use to be done in former tymes caus ther being a comission granted by the And not only ther was alwayes a stock of mony king in anno 1m. vi c. siventie four for trying of in the Mint appointed for buying of bullione to the coyne It was found by the persones comisbe coyned for his majesties use but parti- siond ther report that the silver coyne of this cullarly in the year 1m. vi c. sixtie ane kingdome was above aleven pennie fyne and ther is ane express act of parlia't appointing this so above the standart as the commissione and stock of mony to he imployed in mainer fors'd report produced bears which report was apWhich third article of the lybell above writtenre- proven by the king And therfor the defender peated and insisted in alleadgeances above men-aught to be assolzied as to what was coyned tioned made against the same and reply made therto being all at length red heard seen and considered be the saids lords and they therwith being weill and ryply advysed They befor aus'r ordained the compt books relaiting to the stock allowed by his ma'tie for coyning of bullione to be produced for clearing how often the bullione that should have been bought with the said stock of twentie thousand merks hath been coyned and exchanged in the year and for befor that tyme Lykeas ther being tryall taken, by the laite commissione the coyn was found in fynness to be above the standert Wherunto it was replied by his ma'ties advocat and sir Patrick Home advocat for his highnes interest that the earle of Lauderdale and lord Maitland generalls of the mint are alse much concerned and most be lyable to the king for this and all other articles of the lybell as the maister, or other officers of the Mint 20 Albeit ther was twe |