Procedure, 24 December 1702, Edinburgh

Att Edinburgh the thrid day of March 1702

D1702/3/2

D1702/3/2¹

Act

Act In favours of the Earl of Cassills and Magistrats of Maybeoll

Anent the principall Lybell or letters of Complaint, raised beforethe Lords of his majesties privie Councill be Hugh McCarnock John Kennedy John Malcrome John and Thomas Campbells, John Mcneidder, Robert Mccaull Hew Gray John Mortoun and Robert miller merchants and burgesses of Mayboyll, John Gilespie wreight ther, Alexander Neivan and James Thomson […] ther David Thomson and James Mccanken weavers James Mcombine messenger ther Hary Stewart Taylor ther, with Concurse of his majesties advocat for his highnes interest in the matter under written makeing mention that where by the lawes and acts of parliament of this kingdom, and by the lawes of all other weell Governed nationes, manifast oppression and wrongous Imprisonment, are Cautiously guarded against and the oppressors or those who wroungously Cause Imprison any person thereby punishable, and particullarly by the sixth act of the last session of this Current parliament, whereby It is Statute and ordained that no person shall for hereafter be Imprisoned for any Cryme or offence without a warrand in write expressing the particular Cause for which he is Imprisoned, and of which warrand the messenger or executor thereof before Imprisonment or the keepers of the prison receaveing the same, is thereby ordained to give a Just Double Imediatly under his hand, to the prisoner himselfe, Declaireing that all warrands for Imprisonment, either proceeding wpon Information Subscribed or not, expresseing the particular Cause Shall be void and null, and the Judge or officiar of the law and all others, whatsoever subscreiveing the same,² and keeper of the person who shall receave, and detain the person So wroungously Imprisoned or refuseing a double as said is shall be lyable in punishment of wrongous Imprisonment, Yet nevertheless Wiliam Kennedy of Dallgarroch, Baily Clerk thereof and Patrick Young procurator Fiscall, thereof sustained a proces of exhibition Intented before the said William Kennedy att the instances of Wiliam Mountgomery and Thomas Kennedy Bailyes of Mayboyll, and the said Patrick Young his Fiscall against the saids persuers for exhibiteing the toun Charters, and other urittes, Concerneing the burgh, in which proces, they lybelled, two thousand merks to be payed, to the said Wiliam Montgomery and Thomas Kennedy of Damnages, and five hundred merks to the Fiscall, notwithstanding that the same was only ane exhibition of writtes, yett the said Wiliam Kennedy of Dallgarock Judge wpon the twenty nynth day of Janrij last which was the first Calleing of the frsaid action, Contrary to all Law Justice and form, ordained the persuars to find Caution to Compeir personally the next Court day or als to ly in prison till that tyme and detained them in prison untill Wiliam Ferugson, Became Cautioner for them, and wpon the fifth day of febrij instant the saids persuars haveing Compeared personally they were decerned notourly to deliver in the Charters But also to make payment to the said Wiliam Montgomery and Thomas Kennedy of the soume of five hundred merks and ane hundred pound to the Fiscall, and ordained till ly in prison untill they made exhibition and paymnt where they yett ly, notwithstanding that they required a Signed Interloquitor for Imprisoneing them which being refused they offered to take Instruments in the hands of the said Wiliam Ferguson Clerk, which he also refused, and Likewayes refused to mark the³ persuares defences quherwpon they took Instruments in the hands of Wiliam Gray nottar publict, and protested against the Baily and Clerk for all Coast Skaith and damnage they might sustain, through wrongous Imprisonment, Likeas the said Thomas Kennedy and Wiliam Montgomery did pursue the said John Campbell one of the persuars att the instance of Hugh Gorvan, there Fiscall, for alleadged draweing a sword to his own wyfe and after he had attended severall Court dayes, being allwayes obleidged to find Caution to Compeir personally, and ther witneses, haveing deponed that they never saw nor heard of any such thing, then the said Bailies brought in a new indytment att ther Fiscalls instance against him, the said John Campbell aleadgeing that he had sayd Wiliam Mclyntmount, merchant in the said burgh hed beat his own wife and sent her to Conclaugh, wherein the said John Campbell Compeired and Craved that Conform to the act of parliament the fiscall ought to Condescend upon his Infermers and further positively denyed the lybell, yett without any ansuer or Conviction they Imediatly Committed him, to prison wpon ane or other of the days of Janrij last and ordained him ther to remain untill he should prove that the said Wiliam Mcleymount beat his wife, against which sentance the said John Campbell took Instruments in the hands of the said William Gray, nottar and protested for Coast skaith and damnage and that the Judges might be lyable for wrongous Imprisonment, yet notwithstanding the said John Campbell Continued in prison untill he fell seick, and then they suffered him to goe out wpon Caution so that as yet he is ther prisoner, by all which acts of manifast oppression and wrongous Imprisonment It appears that the said Wiliam Kennedy Wiliam Ferguson Patrick Young Wiliam Mountgomery Thomas Kennedy and Hugh Gorvan are guilty airt and part of the Crymes above mentioned and therefore they ought not only to be found lyable in payment of the soume of two thousand merks for the wrongous Imprisonment of each of the saids persuars, ⁴(being all free burgeses of the said burgh) as the pain inflicted by the forsaid act, wpon these who are guilty or wrongous Imprisonment, But also ought to be otherwayes severly punished in ther persones and goods, to the example and terrour of others to Committ the lyke in tyme comeg And Anent the Charge given to the forenamed persones defenders to have Compeired persently before the saids Lords of his majesties privie Councill, att ane Certain day bygone to have ansuered to the forsaid Complaint and to have heard and seen such order and Course taken as apertains with Certification as in the said principall letters of⁵ Complaint or Lybell raised in the said matter, att more length is Contained And also Anent the lybell of Reconvention raised att the instance of the saids Wiliam Kennedy of Dalljarock Baily Substitute of the Bailary of Carrick Wiliam Ferguson, Clerk thereof, Patrick Young procurator Fiscall thereof and WIliam Montgomery and Thomas Kennedy Bailies of the said brugh of Mayboyll with Concurse of Sir James Stewart his majesties Advocat for his highnes interest in the matter under written makeing mention That where by the lawes of this and all other weell Governed nations the murmureing against magistrats in the exercise of ther office, and the persueing of them before the privie Councill, for giveing Sentances and heareing parties according to law and more Especially wheen the said sentance stands suspended before the Lords of Councill and session and the said suspension not discussed are Crymes of a high nature and severly punishable, You never the less, Hugh McCarnock John Kennedy, John Mcohne John and Thomas Campbells, John Mcnudder, Robert McCaull Hugh Gray John Morton and Robert Miller merchants and burgeses of Mayboyll John Gilespie wreight Alexander Ewing and James Thomson Litsters, ther, David Thomson and James Mccinkie weavers ther, James McConart messenger ther and Hugh Stewart Taylor ther Have raised a most Callumnius and Imperious lybell, before the saids Lords of privie Councill, against the saids persuars for Declaiming them to decern wpon the toun of Mayboyles Chartor and other writtes to the present Bailies of Mayboyll, and fyneing them in five hundred merks to the saids magistrats, and ane hundred pounds to the procurator Fiscall, and detaineing them in ward till Satisfaction albeit the said⁶ sentance proceeded most legally the defenders being personally present, and ther haveingn Cancelling and otherwayes abuseing the Chartor and other writtes referred to ther oath they Contimaciously refused to depone, and obstinatly remained, in the Tollbooth house here at Edinburgh⁷ the Baily allowed them Liberty and ther doors were Constantly open, and they themselves, here att Edinburgh, which demonstrats, ther freedom, and altho they have presented suspension, of this Decreet, the reasones whereof by warrand are to be discussed before the Lords of Session, yett without abydeing the discusseing thereof the persuars are thus maliciously and groundlessly, persued, and att the instance of John Campbell against the said John Montgomery one of the persuars for being Judge to a Complaint against the said John Campbell, for persueing and invadeing of his oun wife with a drawen sword which his wifes discretion averted by withholding the probation which Crymes Ryots muttany Seditiones and murmureing against magistrats and Judges the forenamed above Complained wpon are actors airt and parte, and ought to be Severely punished in ther persons and means, and the said persuars repaired of ther damnages, to the example and Terror of others to Comit the Like in tymecomeing and anent the Charge given to the forenamed persons defenders to have Compeired personally before the saids Lords of his majesties privie Councill att ane Certain day bygone to have ansuered to the forsaid Complaint and to have heard and seen such order and Course taken as apertains with Certification, as in the Said Letter of Reconvention or Lybell raised in the said matter, att more Length is Contained Which lybells being both Called in presence of the saids Lords, wpon the twenty sixth of febrij one thousand seven hundred and two and the said Hugh McCarnock and other persuars in the principall lybell Compeireing all personally (except James McCarnock) with Sir James Stewart his Majesties advocat Mr Wiliam Carmichell his majestis solicitor Mr Wiliam Calderwood Mr Francis Grant, and Mr George Hutcheon ther advocats, and the saids Wiliam kenedy of Dalljarooch and other defenders in the principall lybell, and persuars in the said lybell of Reconvention Compeareing also all personally, (except Thomas Kennedy) att the Barr, with Sir David Dalrymple Sir David Cunningham, Mr John Ferguson and Mr Thomas Kennedy ther advocats, and both lybells with ansers to the principall lybell being read, and both parties procurators⁸ being fully heard att the barr the saids Lords admitts both lybells to probatio and the witneses being Called Compeired and made faith att the barr, the Councill nominats and appoynts the Marquis of Anandale Lord Montgomery, Lord Boyll Lord Advocat Lord Aberuchill and Mr Francis Montgomery to be a Commity for examineing the witneses, and resrves all objectiones to be made and discust before the said Commity, and Declairs any two of the said Commity to be a Sufficient quorum, and recomends to the said Commity to meet to morrow in the fornoon, att ten of the Cloak, And Before examineing of the saids witneses recomends to the said Comity and ther said quorum to endeavour to setle the matter, and agree the parties thereanent, and if they Cannot be agreed then to examine the witneses and Report, Conform whereunto the said Commity haveing mett they gave ther opinion and report whereof the tenor followes. Att Edinburgh the twenty seventh febry seventeen hunder and two the Committy for examineing the witneses aduced by Hugh McCarnock and others against Kennedy of Daljarrock, and for agreeing the saids parties Sederunt the Lord Mongomery Lord Boyll and Mr Frances Montgomery Lord Mountgomery elected preces the Commity after heareing of both parties, It was ther opinion that the Earl of Cassills tutors and Curators dureing his minority should elect and Choyse the magistrats of Mayboyll in the same way and maner as the deceast Earl of Cassills did att and before his death, and the Commmity Recomends to the Earl of Ruglen, present tutor to the Earl of Cassells, to take Caire that the Bailies of the Jurisdiction of Carrick, be nowayes oppressive to any within the Jursidction or the toun of Mayboyll nor buy in any debts, against them, and if any such transgressions be that his Lordship would summarly lay them asyde; from exerceing any office ther and It is the opinion of the Commity that the Inhabitants of Mayboyll give all due Reverance to the present⁹ magistrats they being duely elected and Chosen, by the Earle of Ruglen, to which Determination and oppinion of the Commity both parties acquessed, Sic Subscribitur Montgomery P; Ruglen agrees, Hugh McCarnock John Kennedy John McColine Thomas Campbell John Mcneider, John Mortoun, John Campbell, Hugh Stewart, Robert Miller, David Thomson John Gilespie James Thompson Alexander Huin James McCarnock Robert McCaull and James Neiven Which Report above written haveing been this day, Considered by the saids Lords of his majesties privie Councill they have approven and hereby approves thereof