Warrant, 31 December 1695, Edinburgh

Edinburgh Thursday the 8th August 1695

D1695/8/22

D1695/8/22¹

Act

Act Borthwick of Stow

Anent the petition given in to the Lords of his Majesties privy Councill be Mr James Borthwick of Stow Shewing That the petitioner being infeft in the lands of Stow with the Milnes multers and Sequells And haveing according to the petitioners unquestioned right resolved to build a mylne upon his lands for his oun accomodation and advantage the petitioner has advanced the said mylne so far that four men would Compleat the work in the space of thrie or four dayes, John Hoppringle of Torsons heritor of a Nighbouring Milne Conceaveing that the Just Improvement of the petitioners oun might withdraw a part of the profit of Grinding at his Milne by persons who were not Thirled Hath offered a petition to the saids Lords pretending (as the petitioner was informed) That the petitioners Land are thirled and desireing that the work may be Stopt and what the petitioner hes done demolished wherupon the petitioner is informed ther is a dilyverance Stopting the petitioners former procedour till both parties be heard before ther Lordships This delyverance is not Intimat to the petitioner nor have the petitioner hade the opportunity to see or know the grounds offered to the saids Lords for stoping the work But because a short delay after the petitioner hath bestowed all the expences would be very prejudiciall and that the Councill may shortly adjourne He begged Liberty to say the following unansweable grounds of Law and Justice which the petitioner is Confident would satisfie the saids Lords That his work ought to be stopt so much as ane day primo Torsons Cannot instruct that he is in possession of the said Multers of the petitioners lands and however the saids Lords doe sometimes interpose wher possessiones are designed to be Sumarly inverted yet that takes only place wher it is evidently instructed and made appear that the pursuer was in possession Which here Is not nor Cannot be proven Secundo the petitioner doe stand infeft in his Lands with Mylnes and Multers in the dispositive Clause of the petitioners rights Which does most Certainly Import a right to build a milne and ane Imunitie from all Servitudes of Thirleadge and the Lord Borthwick the petitioners author hade so much the prospect of building a milne on the lands now belonging to the petitioner That when the petitioners father purchased the same His Lordship granted a bond thirling Certain lands belonging to his Lordship to the milne to be built upon the lands purchased by the petitioners father and tho the reasones the petitioner offered may be suficiently Clear without giveing ther Lordships the² trouble of notticeing writtes yes for super abundance he had therwith produced his oun and his fathers infeftments Bearing cum Molendinis et Multuris Togither with the Ratification of the petitioners fathers rights And specially that bond of Thirleage and the Superior Confirmatione therof. Tertio Torsons haveing formerly applyed to the shirreff of the shyre upon the like pretences as are offered to the saids Lords and desireing that their work might be Stopt till both parties were heard He did obtaine a stopt and a warrand to cite the persewer Wherupon both parties haveing Compeired and produced their rights The Shirreffs by their Delyverance of the Eightein instant Considering both parties Chartors, and that it did not appear that the petitioners tennents were astricted to Torsons his milne of Stow, and that he was infeft with milnes multers and Sequells They therby took of the Stopt Reserving to Torsons to insist in his Declarator of right as accords, This Delyverance Is a finall decision of that matter, and affords the petitioner the exception of res Judicata because the Shireff was unquestionablie Competent Judge to this question of possession and Torsons haveing made his application to the Shireff and obtained a stopt to the petitioners work The Shireffs decision to ultimat as to the point of possession, And ther is no other remeed of Law But a declarator of right which the Shirreff did Reserve And which their Lordships would not Determine And Therfore tho the petitioner has mentioned the grounds upon which the Shirreff did most Justly proceid yet their Lordships would need to Consider no more then the Shirreffs interloquitor therwith produced who is a Competent Judge and hath allready determined the point upon Torsons his application And Lastly ther Lordships would be pleased to Consider That ther is greater Latitude in Stopting the begining of a work Then in Stopting the effect and advantage of the work after all the expences bestowed which will be a vast and Irreparrable prejudice to the petitioner on the one hand Wheras on the other hand if the petitioner were found to have built a milne within Torsons his Thirle The petitioner would not only (by the ordinar Course of Law) be obliged to Dimolish his milne but would be Lyable for the abstracted Multers of all that should be ground therat dureing the dependance And he does not declyne to undergoe these hazards and to Sustaine the petitioners right before the Judge ordinar to whom Torsons did also apply himself by raiseing a Declarator before his application to the saids Lords or the Shireff, And Seing the petitioners damnage by stoping the work Is Irrepairable And that the ordinary Course of Law would Suficiently repair Torsons if he had done him wrong And Therfore humbly Craveing the saids Lords would take oft the said stopt as the said petition bears The saids Lords of his majesties privy Councill having heard this petition given in to them be the above Mr James Borthwick of Stow and answers made therto for John Hoppringle of Torsons and the parties being Called and haveing Compeired with ther advocats who were fully heard And the saids Lords haveing Considered the bill and answers and debate They hereby Allow and give Warrand to the said Mr James Borthwick to goe on in building of the said milne In Respect he has given bond and found Suficient Caution acted in the books of privy Councill that he shall not make any use of the said Milne, nor make the same a going Milne nor Lay the Milnestones upon her untill the point of right and thirlage in debate betwixt the petitioner and the Laird of Torsons be first Decyded and determined be the Lords of Session To whom the saids Lords Remitts the same to be discussed Sumarly and like wayes in case Torsons prevaill in the said action that the petitioner shall dimolish the said milne under the penaltie of one hundred punds Sterling incase he Shall transgress in any part of the premisses.