Edinburgh 12th December 1704
D1704/12/5
D1704/12/51
Act
Act for expences in favours of Hamilton of Cowbardie and John Duff
Anent the petition given in and presented unto the right Honorable the Lord high Chancellour and remanent Lords of her Majesties most honorable privie Councill by James Hamilton of Cowbardie and John Duff Messenger, Shewing That where Alexander Davidson younger of Newtoun, now of Gight did raise befor their Lordships a most calumnious and injurious proces againest them, alleadging that they had inhumanly maletreat, and beat him at his own house, after they had been kyndly entertained by him at Supper, on Saturday being the sixteenth of September last, and did must unwarrantably execute a Caption againest him, upon the following Sunday morning, when he was convoying them to their horses, and keeping him some dayes in Custody, did extort bonds for ane extravigant penaltie for produceing and delivering of a Contract of Marriage, past betwixt Gight and his Ladie And which Cowbairdie had borrowed from the Lady Gight elder, now Spous to Generall Major Buchan And which he had lent to the Lady Gight younger and was under Caption for the same, in the hands of Master Duff, at the instance of the Lady Gight elder, and Generall Major Buchan her Husband, They did raise a Reconvention againest Gights most injurious lybell, and did Show it to their Lordships, both in their Answers to the lybell, and in the Reconvention, how great Services and kyndnesses Cowbardie had done to the Family of Gight, in preserving it by his Credit and Interest, almost from utter ruine And how ungratfully this Gight Suffered Cowbardy to be treated upon his account, in not delivering of the forsaid Contract, which he had borrowed from the Lady Gight elder, and lent to the Lady Gight younger to be restored on demand, Notwithstanding he had been under Caption upon that account, for the Space of ten dayes preceiding, and was just going to be carried to prison from Gights own house, and in Gights own presence, after he had been sent for to come to his said house, to accomodat and end that matter, and after he had sent Mr Duff the Messenger, with one Mr Gordon of Towie, to interceed with Generall Major Buchan and his Lady for a fourthnights forbearance to Cowbairdie upon his granting a bond, to deliver the Contract, or a registrat double therof, under the pain of Six Thousand, Six hundereth, and Sixtie Six pound Threttein Shilling, and Four pennies Scots money, from which condition and treaty, when accorded to, by the Major Generall, and his Lady, He did most Shamfully resile althrough it was in his power instantly to liberat Cowbardie, by delivering the Contract, or performing the condition forsaid, all which matter of fact, is more fully and circumstantiatly contained in their printed answers to which they referr, Their Lordships admitted both the lybell and Reconvention to probation, and accordingly probation being ledd upon both, their Lordships at advyseing of the same, Found the persuers lybell not proven, but found the Reconvention at their instance Sufficiently proven And therfore they did now humbly Represent to their Lordships that Seeing this lybell raised againest them is of all the most calumnious and grossly mistaken, that ever was being raised againest persons who acted all in2 their power for the Service of Gight, and after Gight was liberat without any maner of Concussion (tho he most calumniously lybells the same) in the presence of the right Honorable the Earle of Aberdein, and Lord Haddo his Son, and some other Gentlemen as was fully proven, by the witnesses in their Reconvention Its most humbly hoped that their Lordships would take serious Consideration of the same, especially considering that the Calumny off it was yet more gross and unaccountable; in regaird befor he raised the said injurious persuite and lybell of ryot and Concussion he after his liberation when he was at absolute freedome, did in obtemperance to the said transaction, registrat the said Contract, And did offerr ane extract therof, to the said Major Generall Buchan, which the Major perceiving to be vitiat did not accept of all which being evidently made out to their Lordships, They humbly hope and expect, that Such gross and unparelled deeds of Ingratitude, manifest and willfull deeds of oppression, in conveening them, upon Such a Scandalous and calumnious lybell, will meet with their Lordships due Censor And in respect the same has putt them to heavie and great charges and expenses, Besydes the Damnadge which they had Sufferred in being so justly abstracted from their affairs, which expense and Damnadge did truly Surmount the soume lybelled in their Reconvention, and Seeing the lybell was found not proven, which was sufficient to found them in the demand of their expences Yet Seeing their Reconvention was found justly proven wherby they had instructed his lybell in every poynt, to be willfully and maliciously calumnious and injurious to the highest degree, They humbly hope and expect their Lordships will condemn him in their expences and damnadges which they had Sufferred by the raiseing of this unjust proces againest them, which are verie great and heavie Otherwise the persuer had gained his purpose, in malicisouly and calumniously prosecuteing them, which is all the design of calumnious pursuers, Notwithstanding of their Lordships having found his lybell not proven, and their Reconvention Sufficiently proven, which they humbly expect their Lordships justice will never allow And therfore Craving it might please their Lordships to Consider the premisses, and to condemn the said Laird of Gight in the soume of Three Thousand Merks, as their expensses and Damnadges, truly Sustained by them, thorow, and Since his raiseing and intenting the forsaid calumnious pursuite befor their Lordships, againest them, As the said petition bears, Which petition being Upon the fyfth day of December instant, read in presence of the saids Lords of her Majesties privie Councill they allowed the samen to be seen and answered by Davidson of Gight next Councill day peremptorie, Therafter upon the Seventh day of the said moneth of December, The Lords of her Majesties privie Councill having again Considered the petition given in to them by Cowbairdie, and John Duff Messenger they heirby allow Gight to see and answer the samen Tuesday nixt peremptorie, Wherunto Alexander Davidsone younger of Newtoun, now of Gight, gave in a petition by way of answer, Shewing, That where James Hamilton of Cowbairdie, and John Duff messenger having presented a petition to their Lordships for recovering of the Laird of Gight what they had expended upon the account of a proces at his instance against them, Gight is hopefull that upon a just relation of matters of fact, Their Lordships will find the forsaid petition nothing, besydes a disingenous narrative, and ane absurd Conclusion, In the first place Cowbairdie represents the great Service he had done the Familie of Gight, as also he pretends, that Gight as haveing no Sense of them, Suffered him to be ill used by his not redelivering a Contract of Marriage, which Cowbairdie had borrowed from the Lady Gight elder, and lent to the Lady Gight younger to be restored on demand, To which it was answered, that notwithstanding of what Cowbardy pretends as to the ingadgment of his Credite and Interest for the preservation of the Family of Gight, it was nottour that he was never at any trouble or loss upon that account, And farder what Gight did in relation to the redelivery of the Contract of Marriadge, was by Cowbairdies own Speciall advice, for Cowbairdie understanding that he was persued for production of the said Contract, came and desyred Gight not to produce the same, assuring him if he did, it would ruine him, and his Family, wherfore at Cowbairdies desyre Gight haveing granted a bond to Cowbairdie to refound any damnadge or Skaith Should happen to him, upon his not produceing the Contract, Cowbairdie Swore he would retire Sometyme to Lochaber, then give up a Contract of Marriage, which could not chuse but ruine Gights family, And then about ten dayes befor the bussiness (which had been the ground of this persuite) happened, Gight and his Lady obtested Cowbairdie that he would not expose himselfe to come inconveniencie upon their account, but Seeing he had been upon all occasions verie Serviceable to them by his good advice they would rather give up the Contract then Sufferr him to be distressed, To which Cowbairdie answered that he would rather Sufferr the outmost hardshipe then deliver up the Contract of marriage, and that he looked upon this resolution and advice, to be a just attonment and Circumvention as Gights and his Ladies Contract of Marriadge was, which was evident to any who will be at pains to read it, As to Gights lybell being calumnious which was the only conclusive argument for expences It was answered, That Gights lybell could noways be said to be calumnious, as appears by the Depositions of the Witnesses adduced both in the lybell and Reconvention, for through Gight was So unfortunate as by their Lordships Sentence to be found to have Succumbed in the probation of his lybell, by not being allowed to make use of his Domestick Witnesses and others, which he could have had if their health could have allowed them to have been present, wherof if their Lordships doubt, Gight was ready to produce ane attestation from the physicians upon Soul and Conscience, that they were in no Condition to travell, yet what was proven on Gights pairt, was Sufficient to free him of the accusation of calumny and by consequences from being Condemned, in expenses on that account, For first Robert Mitchell Deponed that it was betwixt one and two of the cloak on the morning of the Lords day when the Caption was execute againest Gight by John Duff, and through the other witnes Adam Panton could not be so positive, as to the tyme of the execution, yet Since his Deposition does not contradict the former, and Considering what past from their arryvall at Gights house (which according to all the witnesses, was near nyne of the Cloack upon Saturday nght) till their Departure, at which tyme the Caption was execute, as the bringing a Sheep from the pasture halfe a mile of killing and dressing it for Supper, also the Gentlemen Supping and drinking heartily after, it was more then a base presumption againest Duff, that the Caption was execute at the tyme lybelled, Therfore as to that poynt Gight cannot be lyable for expences upon the head of Calumny, Secondly that the Caption was execute in a ryotous and violent maner so as to free from all Calumny, is as evident, for albeit both Gights witnesses did not aggree in every Circumstance yet as to the violence they both aggree, both Deponing that they saw Gight blooding, as also that they Saw Robert Gordon take Gight by the Arm, and heard say if he were not a prisoner, he would trample him among the hose foot, Lykwise […] Gordon witnes for Cowbardie, and Adam Panton witnes for Gight depone that in a Struggle betwixt Gight and Mr Duff, Gights sword was broken in the Sheath, which was sufficient demonstration of nonressistance on Gights pairt, and barbarous hard useage on Duffs pairt, which did not Stopp him for having forced him from of his own horse upon Cowbairdies horse, they carried him away more like a nottorious Criminall then like a Gentleman prisoner by a civill dilligence, Swearing they would carry him where none concerned him Should hear of him, wherfor it was plain that Gight could not be thought calumnious in that poynt either, for through these poynts were not so liquidly proven as to determine their Lordships to proceed to condemnation of the Defenders, yet Gight was assured their Lordships would be convinced he had not been calumnious in that affair, And therfor Craving it might please their Lordships to take the matter to their Serious Consideration and lest that in tymecomeing others rendered too apprehensive of the event of their probation, might be deterred from persueing injuries, wherof they might have just reason to complain, to assoilzie Gight from the expences persued for, especially Considering that Cowbardie and Mr Duff defenders in his proces had Craved his oath of Calumny if he had just reason to persue the Complaint He gave his oath of Calumny that he had just reason to persue the said Complaint, and when any man gives his oath of Calumny upon a lybell, especially when Craved be the Defender he is understood in Law to have just ground to persue the action, and so cannot be lyable to expences as the said Answers bears, The Lords of her Majesties privie Councill having Considered the petition given in to them by James Hamilton of Cowbairdie, and John Duff Messenger, Together with ane other petition by way of Answers therto by Alixander Davidsone younger of Newtoun, now of Gight, And the samen being read in their presence, The Saids Lords of her Majesties privie Council have Modified and Granted, and heirby Modifies and Grants the Soume of One Thousand merks scots money to be payed to the said James Hamilton of Cowbardie and John Duff by the said Alexander Davidsone of Gight for their expences, in the mutuall processes hinc inde againest offers, and appoynts and ordains the said Alexander Davidson instantly to make payment there accordingly, and appoynts letters of horning under the Signet of Councill, upon the dayes to be direct heirupon as effeirs.
1. NRS, PC2/28, 337v-340v.
2. The word ‘in’ is an insertion.
1. NRS, PC2/28, 337v-340v.
2. The word ‘in’ is an insertion.