Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the sixth Day of February J^aj vi^c nyntie six yeirs

D1696/2/10

D1696/2/10¹

Act

Act Russell of Ellrig

Anent the petitione given in to the Lords of his majesties privie Counsell be Thomas Russell of Ellrig Shewing That wheras upon the complaint at the instance of Thomas Aikenhead of Jaw and James Monteith of Mylnehall against the petitioner for alleadged hindering him to repair the damn of the mylne of Jaw and for Stopping the bwilding of a new mylne upon the petitioners own ground The Saids Lords of privie Counsell at first refused to Sustaine processes as to the Stopping of the bwilding of the petitioners new mylne But therefter the saids Lords Stopped the bwilding therof and remitted both that point and the other point anent the diverting the course of the water to be discust Sumarly by the Lords of Sessione As to which the petitioner Humbly represents that the foirsaid interloquitor proceeded upon a misrepresentatione of the mater of fact That this was a parralell caice with ane other perswite at the instance of Pringle of Torsonse against The Laird of Stow Wheras the caise is vastly different for Torsons was the complainer² in that caice was infeft in the mylne of Stow with the astricted mulitures and produced a right prior to any right in the persone of Stow And that Stow was not only goeing to bwild a mylne within the thirleage But as is represented in Torsons complaint Stow by bwilding of a new mylne upon his ground did obstruct the frie ish and entrie of Torsonses mylne which was the mylne of the barronie As appears by a double of the complaint and act therupon produced with the said petitione And Therfor the Saids Lords of privie Counsell did most Justly order a Stopp to be putt to the bwilding of Stowes new mylne befor the mater was tryed and Determined Wheras in this caice ther is no right of Thirleage produced nor is the petitioner any wayes thirled nether to the mylne of Jaw nor to the mylne of Mylnehall and his Lands is not within the Same barronie with the mylne of Jaw but within another barronie And nether does the bwilding of his mylne any wayes obstruct the said³ frieish and entrie to the mylne of Jaw being about half ane mylls distance And albeit the petitioner be within the same barronie with the mylne of Mylnehall which holds of The Dutches of Hamiltone yet he is so farr from being astricted to the mylne that he hes ane express right from Dwke William in the yeir J^aj vi^c and fiftie allowing him to bwild a mylne upon his own ground as appears by the dispositione produced So that the petitioner is Just in the case of ane heretor whose Lands are frie of any thirleage and his right to bwild ane mylne upon his own ground that is not restricted by a thirleage or Some other Speciall right And furder to evidence the difference betuixt that case of Torsouses against Stow and the petitioners case Torsouce alleadges that Stow was in wse to come to his mylne and to pay astrict multures and Stow alleadges owttentownes multures Wherupon The Lords of Sessione Have granted a conjunct probatione to them against the first of Jwne next Wheras the petitioner was never in wse to goe to Mylnehalls mylne being five or six mylls distant And when he went to Jaws mylne was allwayes frie of multure for the Libertie of the water owt of the petitioners Loch Secundo The Saids Lords of privie Counsell by ther interloquitor haveing remitted the point of right to be discust by the Lords of Sessione Sumarly And albeit the petitioner hes requyred Mylnehall upon whose pretended right the Stopp was fownded to insist as appears by ane instrument produced with the said petitione yet he Still postpones and delayes and his not as yet insisted in his actione so that it is evident all that they desyre is only to Stopp the goeing of the petitioners mylne but never to insist to discuss the point of right And therfore Humbly craveing that the saids Lords of privie Counsell would be pleased to take the premiss to her consideratione And seing the petitioners mylne is alreadie bwilt he may be alloued to proceed to make her a goeing mylne Reserveing to the persewer to insist in his actione befor the Lords of Session as accords of the Lau As the said petitione bears which being this day red and considered be the saids Lords of privie Counsell with ansuers made therto for The Laird of Jaw and Milnehill They heirby discharge the petitioner to Suffer his mylne to goe And ordaines him to give bond and find sufficient cautione acted in the books of privie Counsell that he shall not Suffer the said mylne to goe untill the point of right be discust befor The Lords of Sessione And that he shall demolish the said mylne watergangs and Damnheads Therof in caice it shall be found be the saids Lords of Sessione that he had not right to bwild the Samen