Act, 7 August 1694, Edinburgh

Act, 27 December 1694, Edinburgh

Edinburgh the seventh day of August Jaj vjc nyntie four years

D1694/8/151

Act

Act James Dunbar against Donald Mcdonald

Anent the petitione given in to the Lords of their Majesties privy Councill be Donald Mcdonald of Castletoune Shewing That quheras the petitioner haveing fallen deficient in a termes Cess at Whitsunday Jaj vjc Eightie five and being quartered upon by Thomas Grahame Commander of a partie of the guards Did not only upon payment therof obtaine the Collectors Discharge the fifteinth of January Jaj vjc Eightie Six But likewayes did satisfie all the quartering money that could be Craved for the partie And obtained Grahames discharge therupon direct be way of missive to the Collector yet James Dunbarr Collector Charged the petitioner with deficiencie for the said termes Cess being but seventein punds ten shilling Scots at half a Crown or two horssmen per diem from the Eight of December Jaj vjc Eightie five to the sixt of February Jaj vjc Eightie six pretending to have assignatione therto from the said Thomas Grahame as the accompt therof subscribed by the Collector and the forsaid discharges lying in proces bears, And to force the payment of these groundless deficiencies the Collector ordored allwayes quartering upon the petitioner of ane number of souldiers very disproportionable to the soumes resting by him And these resting meirly throw the Collectors fault, The petitioner haveing from time to time made offer of all the Cess truely resting by him And some times under forme of instrument as appears by instruments taken therupon in the year Jaj vjc Eightie Eight And in november last produced in proces the petitioner was at length necessitate to Conveen the Collector before their Lordships And the Cause being referred to ane Comittie The report did only bear ane queirie to be determined by ther Lordships anent the maner of quartureing, But the last Councill day upon Consideratione of the said queirie their Lordships proceided to determine the wholl cause whilest the petitioner hade not Conveniencie suficiently to informe their Lordships theranent and the defenders by misrepresentatione of the matter of fact obtained ane interloquitor in their favors finding the petitioner lyable for the haill quartering money and Discharges acclaimed by them, In relatione to which their Lordships will be pleased to be informed that all the matteriall defences proponed for the defenders being primo that in the forsaid wryte subscrybed be the Collector the terme of Whitsunday was by mistake insert for mertimiss which termes deficiencie he was forced to pay, Grahame haveing quartered upon him therfore with Eight horss and Eight men for four dayes Secundo that the last deficients in a shire must bear the burden of the wholl partie that is sent to quarter upon the haill shyre since they will not remove till all be payed, These are easily eleided by these replyes for the petitioner viz To the first that the Collectors hand wryt being the Clearest probatione that could be adduced It were against all Law and reasone that the same should be eluded upon the defenders asserting that the wryt did proceid upon a mistake, For if that were allowed no wryt could ever be found a Concludeing probatione, But though it were granted to be mertimiss the forsaid discharge granted by Thomas Grahame being indefinitly of all he Could Crave for the partie will include mertimiss as weell as Whitsunday, And yet it is most frivilous to alledge that he was forced to pay the same by Grams quartering upon him For albeit a partie might quarter upon a Collector for Cess due by particular deficients untill he give them a list, yet it was never heard that a partie Could quarter upon the Collector for the quartering money duely any deficient after he hade given them ane list, And if the Collector was Illegally treated by Grahame he could never have any ground of Law, to seek repairatione therof from the petitioner, To the second It is Replyed that the Law has Justly proportioned the quartering of souldiers to the somnes resting be deficients, so as to be a suitable penaltie for their negligence and prevent the exhausting of their wholl Substance by arbitrary and Illimited quarterings and the pretence of useing extraordinary quarterings against the last deficients in a shire can nowayes be used for the forsaid quartering money charged upon the petitioner Since by the Collectors oun acknowledgement the same is Charged for the terme of mertimes from the Eight of December at which time the petitioner was but one of many deficients in the shire being within a moneth of the termes Charged for, so that 2 Notwithstanding these evasiones of the defenders the petitioner humbly conceaves his lybell is relevant in law, and instructed by the forsaids writtes By quhich It is evident primo that the forsaid quartering money is made to run for ane moneth after the date of the Collectors Discharge, Secundo (allowing the Same to be for Mertimiss as the Collector alledges) That half a Croun per diem or two horss men Is Charged for seventein pund ten shilling of deficient cess within ane moneth of the terme at which it falls due tho the thrid act of parliament Jaj vjc Eightie one allow only that quartering for five hundred pund of deficiencie, Tertio that the said quartering money is Charged upon the petitioner after his being Discharged of all that could be Craved for the partie Quarto That the forsaid quartering money and much more of that kind is Charged for by the Collector notwithstanding that the sectio act parliament Jaj vjc Eightie 3 Six4 statutes that quartering money shall not at all be exacted after twentie dayes from the time it falls due, and besides all these grounds of Law Its offered to be proven by the Collectors oun oath that whatever summs he payed to the forsaid Thomas Grahame or any other partie he has obtained full satisfactione therof from other deficients, So that he ought not to be allowed to exact the same ever againe from the petitioner And Therfore humbly Craveing the saids Lords upon Consideratione of the premises to reveiw the forsaid interloquitor and either determine the following points quherupon the decissione of the Cause depends viz whither or not the Simple assertione of the defender be receivable against a wryte under his oun hand, Secundo Whither or not the Lawes and acts of parliament made with so much pains and care for securitie of the people to the rule of quarterings or the arbitrary orders of Collectors for their privat advantage Tertio Whither or not the act of parliament dischargeing quartering money to be exacted after twentie dayes from the time it falls due can be Dispenced with by Commisioners or Collectors and the same quartering money be exacted by them after many years, Quarto Whither or not a Collector can exact payment oftner then once of any quartering money advanced by him to any partie or if he must rest satisfied with once and single payment therof, Or Otherwayes to allow the petitioners procurators to be heard therupon before extracting of any Sentance in this affair And seing by Consideratione of the grounds above represented It will appear that the petitioner was never Contumacious against the payment of the kings rent but only against the Collectors claime of quartering money Their Lordships would be pleased to grant warrand to the petitioner to pay all the cess truely resting by him to their Majesties generall receivers or to the forsaid Collector without being burdened with the forsaid Collector without being burdened with the forsaid claime of quartering money as the petitione bears The Lords of their Majesties privy Councill haveing Considered the forgoeing petitione given in to them be Donald Mcdonald of Castltoune They Refuse the desire therof and adhered to their former interloquitor pronunced by them upon the second day of August instant in favors of the above James Dunbar against the petitioner.

Edinburgh the seventh day of August Jaj vjc nyntie four years

D1694/8/151

Act

Act James Dunbar against Donald Mcdonald

Anent the petitione given in to the Lords of their Majesties privy Councill be Donald Mcdonald of Castletoune Shewing That quheras the petitioner haveing fallen deficient in a termes Cess at Whitsunday Jaj vjc Eightie five and being quartered upon by Thomas Grahame Commander of a partie of the guards Did not only upon payment therof obtaine the Collectors Discharge the fifteinth of January Jaj vjc Eightie Six But likewayes did satisfie all the quartering money that could be Craved for the partie And obtained Grahames discharge therupon direct be way of missive to the Collector yet James Dunbarr Collector Charged the petitioner with deficiencie for the said termes Cess being but seventein punds ten shilling Scots at half a Crown or two horssmen per diem from the Eight of December Jaj vjc Eightie five to the sixt of February Jaj vjc Eightie six pretending to have assignatione therto from the said Thomas Grahame as the accompt therof subscribed by the Collector and the forsaid discharges lying in proces bears, And to force the payment of these groundless deficiencies the Collector ordored allwayes quartering upon the petitioner of ane number of souldiers very disproportionable to the soumes resting by him And these resting meirly throw the Collectors fault, The petitioner haveing from time to time made offer of all the Cess truely resting by him And some times under forme of instrument as appears by instruments taken therupon in the year Jaj vjc Eightie Eight And in november last produced in proces the petitioner was at length necessitate to Conveen the Collector before their Lordships And the Cause being referred to ane Comittie The report did only bear ane queirie to be determined by ther Lordships anent the maner of quartureing, But the last Councill day upon Consideratione of the said queirie their Lordships proceided to determine the wholl cause whilest the petitioner hade not Conveniencie suficiently to informe their Lordships theranent and the defenders by misrepresentatione of the matter of fact obtained ane interloquitor in their favors finding the petitioner lyable for the haill quartering money and Discharges acclaimed by them, In relatione to which their Lordships will be pleased to be informed that all the matteriall defences proponed for the defenders being primo that in the forsaid wryte subscrybed be the Collector the terme of Whitsunday was by mistake insert for mertimiss which termes deficiencie he was forced to pay, Grahame haveing quartered upon him therfore with Eight horss and Eight men for four dayes Secundo that the last deficients in a shire must bear the burden of the wholl partie that is sent to quarter upon the haill shyre since they will not remove till all be payed, These are easily eleided by these replyes for the petitioner viz To the first that the Collectors hand wryt being the Clearest probatione that could be adduced It were against all Law and reasone that the same should be eluded upon the defenders asserting that the wryt did proceid upon a mistake, For if that were allowed no wryt could ever be found a Concludeing probatione, But though it were granted to be mertimiss the forsaid discharge granted by Thomas Grahame being indefinitly of all he Could Crave for the partie will include mertimiss as weell as Whitsunday, And yet it is most frivilous to alledge that he was forced to pay the same by Grams quartering upon him For albeit a partie might quarter upon a Collector for Cess due by particular deficients untill he give them a list, yet it was never heard that a partie Could quarter upon the Collector for the quartering money duely any deficient after he hade given them ane list, And if the Collector was Illegally treated by Grahame he could never have any ground of Law, to seek repairatione therof from the petitioner, To the second It is Replyed that the Law has Justly proportioned the quartering of souldiers to the somnes resting be deficients, so as to be a suitable penaltie for their negligence and prevent the exhausting of their wholl Substance by arbitrary and Illimited quarterings and the pretence of useing extraordinary quarterings against the last deficients in a shire can nowayes be used for the forsaid quartering money charged upon the petitioner Since by the Collectors oun acknowledgement the same is Charged for the terme of mertimes from the Eight of December at which time the petitioner was but one of many deficients in the shire being within a moneth of the termes Charged for, so that 2 Notwithstanding these evasiones of the defenders the petitioner humbly conceaves his lybell is relevant in law, and instructed by the forsaids writtes By quhich It is evident primo that the forsaid quartering money is made to run for ane moneth after the date of the Collectors Discharge, Secundo (allowing the Same to be for Mertimiss as the Collector alledges) That half a Croun per diem or two horss men Is Charged for seventein pund ten shilling of deficient cess within ane moneth of the terme at which it falls due tho the thrid act of parliament Jaj vjc Eightie one allow only that quartering for five hundred pund of deficiencie, Tertio that the said quartering money is Charged upon the petitioner after his being Discharged of all that could be Craved for the partie Quarto That the forsaid quartering money and much more of that kind is Charged for by the Collector notwithstanding that the sectio act parliament Jaj vjc Eightie 3 Six4 statutes that quartering money shall not at all be exacted after twentie dayes from the time it falls due, and besides all these grounds of Law Its offered to be proven by the Collectors oun oath that whatever summs he payed to the forsaid Thomas Grahame or any other partie he has obtained full satisfactione therof from other deficients, So that he ought not to be allowed to exact the same ever againe from the petitioner And Therfore humbly Craveing the saids Lords upon Consideratione of the premises to reveiw the forsaid interloquitor and either determine the following points quherupon the decissione of the Cause depends viz whither or not the Simple assertione of the defender be receivable against a wryte under his oun hand, Secundo Whither or not the Lawes and acts of parliament made with so much pains and care for securitie of the people to the rule of quarterings or the arbitrary orders of Collectors for their privat advantage Tertio Whither or not the act of parliament dischargeing quartering money to be exacted after twentie dayes from the time it falls due can be Dispenced with by Commisioners or Collectors and the same quartering money be exacted by them after many years, Quarto Whither or not a Collector can exact payment oftner then once of any quartering money advanced by him to any partie or if he must rest satisfied with once and single payment therof, Or Otherwayes to allow the petitioners procurators to be heard therupon before extracting of any Sentance in this affair And seing by Consideratione of the grounds above represented It will appear that the petitioner was never Contumacious against the payment of the kings rent but only against the Collectors claime of quartering money Their Lordships would be pleased to grant warrand to the petitioner to pay all the cess truely resting by him to their Majesties generall receivers or to the forsaid Collector without being burdened with the forsaid Collector without being burdened with the forsaid claime of quartering money as the petitione bears The Lords of their Majesties privy Councill haveing Considered the forgoeing petitione given in to them be Donald Mcdonald of Castltoune They Refuse the desire therof and adhered to their former interloquitor pronunced by them upon the second day of August instant in favors of the above James Dunbar against the petitioner.

1. NRS, PC2/25, 53v-56r.

2. The word ‘Whitsunday’ scored out here.

3. The word ‘Eight’ scored out here.

4. Insertion.

1. NRS, PC2/25, 53v-56r.

2. The word ‘Whitsunday’ scored out here.

3. The word ‘Eight’ scored out here.

4. Insertion.