Act, 22 June 1692, Edinburgh

Act, 29 December 1692, Edinburgh

Att Edinburgh the Tuenty Second day off Junij Jaj vjc and nyntie tuo years

A1692/6/781

Act

Act Mr William Smart for stipend

Anent the petitione given in to the Lords of there majestyes privie Councill be Mr Uilliam Smart minister at Ecclesmachan Shewing That the petitioner Haveing suffered great Loss by his violent extrusione and the thryce rifleing and plundering of his house Gave in a petitione to the Councill about the begining of the Last year Jaj vjc nyntie one with the consent and recomendation of his patrone the Earle of Linlithgow for the stipends of the tuo years Jaj vjc and Eighty nyne and Jaj vjc nyntie The former of which tuo years He Intirely served for (as the petition bears) the other not being disposed of And altho there be nothing asserted in that petitione but notourly knoune and undenyably matter of fact Yet both the said years are (by some mistake or misrepresentatione of the effair) Decerned on the fourth day of Junij last to the prejudgeing the patrone of his priviledges and the petitioner of his Just and Legall right The year Jaj vjc Eighty nyne which the petitioner served for and hes a legall right and title to (he haveing never yet to this day hade any sucessor in his charge Nor yet to this day been sentenced by any Judicatorie within the Natione Civill or Ecclesiastick upon any accompt whatsomever) is Least Shaddow of any right or title But that he precariously preached there on day and a half2 without any call consent or Invitatione from the pariochiners And thereupon surreptitiously obtained Letters of horning on that generall act of Councill In favours of presbiterian ministers daitted the tuelth day of Jully Jaj vjc nyntie The which act being made only In favours of these presbiterian ministers who were outted since Januarij Jaj vjc and sixtie one)3 is in that place or any where else And haveing never preached in that Church nor to that people more then that one day and a half It is offered to be proven sub pericula causa And altho some of the heretors upon Mr Somervells charge hade payed to him by Collusione befor the petitioner who served for it got notice of it, yet the Cheifest and most Considerable have not yet payed And these verie heretors themselves who hes payed Knowing that the petitioner hade served Intirely for it and hade a right to it and wes highly Injured in it, told him that altho they hade payed to Mr Somervell Yet if it were so determined by the saids Lords of Councill They were ready and willing to pay again to the petitioner And that because in that case they hade sufficient security to be refounded again by Mr Somervell whereby it appears plainly that as to that year Jaj vjc Eighty Nyne The Saids Lords hes been abused by a misrepresentatione of the effair And that Mr Somervell being ordered by the saids lords to see and ansuer the said petition Hes given no satisfyeing ansuers to the grounds and reasones of it when the petition itself and his ansuers to it are both seriously considered And as for the other year Jaj vjc and nyntie (which the petitioner hes his patrones consent unto produced with the forsaid petitione which is all that is requyred by act of parliament) it is Indeed decerned to the petitioner on the said fourth day of Junij But with such a Condition and Limitatione as is prejudiciall to the patrons priviledge To witt If the rest of the heretors consent as the patrone hes done which is a qualificatione the Law requyres not and prejudges the patrone alswell as the petitioner And besydes all this There Lordships by some misinformatione or other hes been Imposed upon again to grant (parte Inaudita) a gift of this year Jaj vjc and nyntie also (not only without but against the consent of the patron the Earle of Linlithgow and Contrary to the forsaid sentence of Councill in the petitioners favours) to one Jean Broun relict of the deceist Mr William Hay sometyme Minister at Holywood, From all which it is evident that nether the said Mr William Somervell nor the said Jean Broun hes any right to any of the forsaids years but what they have surreptitiously obtained by misinformatione from there Lordships And which is alterable and revocable at the saids Lords there pleasure or better Informatione which is here offered Sieing then that the saids Lords have been abused and Imposed upon by misinformatione And that the patron the Earle off Linlithgow is exceedingly prejudged in his priviledges contrair to the act of parliament And that the petitioner (4who to this day wes never under any sentence of deprivatione by any Judicature within the natione civill or Ecclesiastick upon any accompt whatsomever is highly prejudged in his Just and Legall right which will tend to his outter ruine His present Circumstances being considered unles the said Lords provyde remeid And therefore Craveing that the saids Lords of privie Councill would be pleased to take the petitioners case5 to there serious consideratione with the reasonablenes Justice and equity of his petitione And to recall any acts that hes past by misinformatione (to the prejudice of his Just right) In favours of the said Mr William Somervell and Jean Broun And to grant warrand to the petitioner to uplift these stipends for the saids tuo years Jaj vjc and Eightie nyne and nyntie Sieing he served Intirely for the one and hes his patrones consent for both which is all requyred by Law for the other And If in order to the reversing of the said acts There Lordships think it neadfull to try further the trueth of what is here asserted or to hear further what any of these pairtyes have to say Be pleased to review the narrative of Jean Brouns first petitione As also to review Mr Somervells forsaid ansuers alreadie given in Junij fourth to the petitioners former petition And to Compare them with what is said in that and this present petitione And if efter all this any difficulty shall occurr in his ansuers or otherwayes (as the petitioner is very confident there will not) The saids Lords are in that case humbly Intreated for a hearing in the effair. That the samen may be brought in and heard and debated before there Lordships in there oune presence by the procurators of both pairtyes And that in the mean tyme a suspension of Multiply poynding may be granted and expead In favoures of the heretors and others Lyable in payment for the stipends of the said tuo years As the said petitione bears The Saids Lords of there majestyes privie Councill haveing considered this petitione given in to them be the above Mr William Smart with the ansuers given in thereto for the above Mr William Somervell and Lykewayes the ansuers made thereto for the above Jean Broun relict of Mr William Hay with the act in favours of Mr William Somervell and horning raised thereon They adhere to the said act In favours of Mr William Somervell In so far as concernes or may be extended to that pairt of the stipend of the above Kirk of Ecclesmachan for the cropt and year of God Jaj vjc and Eightie Nyne whereof the said Mr William Somervell hes receaved actuall payment And allowes to the said Mr William Smairt the rest of the stipend of the said Kirk for the said cropt and year of God Jaj vjc and Eightie Nyne whereof the said Mr William Somervell hes not receaved actuall payment as said is And the saids Lords have recalled and hereby recalls the former act of Councill made in favours of the said Jean Broun relict of Mr Hay for the stipend of the said kirk cropt and year of God Jaj vjc and nyntie To both which The saids Lords have preferred and hereby preferrs the said Mr William Smairt, be the heretors fewers wodsetters and others Lyable in payment of the same and ordaines Letters of horning at his instance againest them for that effect He produceing a decreet of Locality And in case there be non ordaines these Lyable to make payment to him of there respective proportiones of the said stipend according as the samen shall be decerned be the Judge ordinarie In respect the said Mr William Smairt hes given in to the Clerks of Councill ane obleidgment subscryved be him Binding and obleidgeing himself That for the future he shall pray for there Majestyes King William and Queen Mary as King and Queen of this Realme And reserves action of repetitione to the said Mr William Smairt against the relict of the said Mr William Hay for such pairt of the said stipend cropt forsaid as she hes actually receaved payment of But declares the recepts or discharges granted be her to the persones From who she hes receaved actuall payment to be a sufficient exoneratione to these persones at all hands for the soumes and victuall therein contained.

At Edinburgh 22 June 1692

A1692/6/781

Act

Act for Mr William Smart for stipend

Concerning the petition given in to the lords of their majesties’ privy council by Mr William Smart, minister at Ecclesmachan, showing that the petitioner, having suffered great loss by his violent extrusion and the thrice rifling and plundering of his house, gave in a petition to the council about the beginning of 1691 with the consent and recommendation of his patron the earl of Linlithgow for the stipends of the two years 1689 and 1690, the former of which two years he entirely served for (as the petition bears), the other not being disposed of, and although there is nothing asserted in that petition not well known and undeniably matter of fact, yet both the said years are (by some mistake or misrepresentation of the affair), discerned on 4 Junelast to the prejudging the patron of his privileges and the petitioner of his just and legal right to 1689 which the petitioner served for and has a legal right and title to (he having never yet to this day had any successor in his charge nor yet to this day been sentenced by any judicatory within the nation, civil or ecclesiastical upon any account whatsoever), is least shadow of any right or title, but that he precariously preached there one day and a half without any call consent or invitation from the parishioners, and thereupon surreptitiously obtained letters of horning on that general act of council in favour of presbyterian ministers dated 12 July 1690, which act being made only in favour of these presbyterian ministers who were ousted since January 1661) is in that place or anywhere else, and having never preached in that church nor to that people more than that one day and a half, it is offered to be proved in court, and although some of the heritors upon Mr Somerville’s charge had paid to him by collusion before the petitioner who served for it got notice of it, yet the most considerable have not yet paid, and those very heritors themselves who have paid knowing that the petitioner had served entirely for it and had a right to it and was highly injured by it, told him that although they had paid to Mr Somerville yet if it were so determined by the said lords of council, they were ready and willing to pay again to the petitioner and that because in that case they had sufficient security to be refunded again by Mr Somerville, whereby it appears plainly that as to 1689, the said lord have been abused by a misrepresentation of the affair and that Mr Somerville being ordered by the said lords to see and answer the said petition has given no satisfying answers to the grounds and reasons of it when the petition itself and his answers to it are both seriously considered, and as for the other year 1690 (which the petitioner has his patron’s consent unto produced with the foresaid petition which is all that is required by act of parliament) it is indeed discerned to the petitioner on the said 4 June but with such a condition and limitation as is prejudicial to the patron’s privilege, to wit if the rest of the heritors’ consent as the patron has done which is a qualification the law requires not and prejudges the patron as well as the petitioner, and besides all this, their lordships by some misinformation or other have been imposed upon again to grant (with the party not being heard), a gift of 1690 as well (not only without but against the consent of the patron the earl of Linlithgow and contrary to the foresaid sentence of council in the petitioner’s favour) to one Jean Brown, widow of the deceased Mr William Hay, sometime minister at Holywood, from all which it is evident that neither the said Mr William Somerville nor the said Jean Brown has any right to any of the foresaid years but what they have surreptitiously obtained by misinformation from their lordships and which is alterable and revocable at the said lords’ pleasure or better information, which is here offered; seeing then that the said lords have been abused and imposed upon by misinformation and that the patron the earl of Linlithgow is exceedingly prejudged in his privileges contrary to the act of parliament, and that the petitioner (who to this day was never under any sentence of deprivation by any judicatory within the nation, civil or ecclesiastical upon any account whatsoever) is highly prejudged in his just and legal right which will tend to his utter ruin, his present circumstances being considered, unless the said lord provide remedy, and therefore craving that the said lords of privy council would be pleased to take the petitioner’s case to there serious consideration with the reasonableness, justice and equity of his petition and to recall any acts that have passed by misinformation (to the prejudice of his just right) in favour of the said Mr William Somerville and Jean Brown, and to grant warrant to the petitioner to uplift those stipends for the said two years 1689 and 1690, seeing he served entirely for the one and has his patron’s consent for both which is all required by law for the other, and if in order to the reversal of the said acts their lordships think it necessary to try further the truth of what is here asserted or to hear further what any of these parties have to say, be pleased to review the narrative of Jean Brown’s first petition, as also to review Mr Somerville’s foresaid answers already given on 4 June to the petitioner’s former petition and to compare them with what is said in that and this present petition; and if after all this any difficulty shall occur in his answers or otherwise (as the petitioner is very confident there will not), the said lords are in that case humbly entreated for a hearing in the affair, that the same may be brought in and heard and debated before their lordships in their own presence by the procurators of both parties, and that in the meantime a suspension of multiple poinding may be granted and expedited in favour of the heritors and others liable in payment for the stipends of the said two years, as the said petition bears. The said lords of their majesties’ privy council, having considered this petition given in to them by the above Mr William Smart with the answers given in thereto for the above Mr William Somerville and likewise the answers made thereto for the above Jean Brown, widow of Mr William Hay with the act in favour of Mr William Somerville and horning raised thereon, they adhere to the said act in favour of Mr William Somerville in so far as concerns or may be extended to that part of the stipend of the above kirk of Ecclesmachan for the crop and year of God 1689, whereof the said Mr William Somerville has received actual payment, and they allow to the said Mr William Smart the rest of the stipend of the said kirk for the said crop and year of God 1689, whereof the said Mr William Somerville has not received actual payment as said is; and the said lords have recalled and hereby recall the former act of council made in favour of the said Jean Brown, widow of Mr Hay, for the stipend of the said kirk, crop and year of God 1690 to both which the said lords have preferred and hereby prefer the said Mr William Smart, by the heritors, feuars, wadsetters and others liable in payment of the same and they ordain letters of horning at his instance against them for that effect, he producing a decreet of locality, and in case there is none, they ordain those liable to make payment to him of their respective proportions of the said stipend as the same shall be discerned by the judge ordinary, in respect the said Mr William Smart has given in to the clerks of council an obligation subscribed by him, binding and obliging himself that for the future he shall pray for their majesties King William and Queen Mary as king and queen of this realm, and they reserve action of repetition to the said Mr William Smart against the widow of the said Mr William Hay for such part of the said stipend of the crop foresaid as she has actually received payment of but declares the receipts or discharges granted by her to the persons from whom she has received actual payment to be a sufficient exoneration to those persons at all hands for the sums and victual therein contained.

1. PC1/48, 278-81.

2. The words ‘a half’ are inserted above the line and ‘that’ is scored out here.

3. Opening bracket missing.

4. Closing bracket missing.

5. The words ‘Petitioners case’ inserted above the line and the word ‘premisses’ is scored out.

1. PC1/48, 278-81.