Edinburgh The Nynth Jully 1695
D1695/7/2
D1695/7/21
Act
Act Arkindlass contra Drumfynie
Anent the petition given in to his majesties high Commissioner and Lords of privy Councill be Sir Collin and James Campbells elder and younger of Ardkindless Shewing That wheras Robert Campbell late of Drumfynie haveing given in a petitione to their Lordships makeing mention that Duncan Campbell his elder brother haveing about twentie years since granted a bond for twelue thousand punds to […] Freeland his brother in Law in trust to the effect that he might lead ane appryssing of the Lands to the said Duncan Campbell his behoove and that after the said Duncan Campbell and […] Freelands decease, Archibald Freeland his sone hade induced the said Robert Campbell to give him a dispositione Corrobrative of the appryssing, upon pretence that it wes done for Compleating of the right, and when it was Compleated he would give a retrocessione or back bond, and that yet notwithstanding Contrair to the trust he disponed the lands to Auchinbreck and went out of the Countrey, and Auchinbreck enters to the possessione by force, By which he was reduced to great misserie, and he haveing againe caused apply to Auchinbreck that he might be reponed to his estate, and that Auchinbreck wrott a letter to the Earle of Brodalbine in october Jaj vjc nyntie Declairing that he did not Covet the bargaine But would freely quyt it without Loss, and that notwithstanding of his promisses and letters in the said Robert Campbells favors, Auchinbreck Dispones his right to the Lairds of Arkindless elder and younger who Likewyes prevailled with Mr Sprewell to give him a right to Auchinbrecks bond of Six thousand merks that he hade given to Freeland when he obtained from him the right, And was Like2 to be defrauded of his estate by meer Circumventione Which was worth above Fourtie thousand merks, and that he was to prosecute a discovery therof by all the members methods that the Law allowes and in the mean time for his subsistance in carieing on of the process he Craved that ther Lordships would allow him ane aliement, and ordaine the tennents to pay the same, And Auchinbreck Arkindlass elder and younger being ordained to see and answer the said petition, But they not being present in toune ther procurators gave in only ane generall defence that they would not be oblidged to answer unless they hade been Lawfullie cited upon which ther Lordships did grant the said Robert Campbell ane aliement of fyve hundred merks and Decerned Arkindless elder and the tennents to make payment of the same at this terme of Whitsunday as to which the petitioner humbly represent that the matter of fact mentioned in the said petition as to the pretended trust and Circumventione and many other particulars Is absolutly false and Calumnious the matter being truely Thus That Duncan Campbell of Drumfynie haveing granted bond to Archibald Freeland The said […] Freelands sone for the soume of Twelue Thousand pund, The said Robert Campbell after his brothers decease grants a bond of Corroboration to Archibald Freeland upon which he Leads ane adjudicatione of the lands; and albeit the soumes in the adjudicatione were more then the value of the Land Considering the relicts Joynture Which is six hundred merks be year, and that ther is a great few dutie payable out of the same to the Earle of Argyll as superior and the wholl yearly rent of the Land is not above Nyne hundred merks, and yet Freeland that he might have a right to the reversione he payes the said Robert Campbell ane thousand punds and obtaines from him a heretabell and Irredeemable Dispositione upon which he was publictly infeft and Freeland dispones the Lands to Auchinbreck and the saids Lands being anciently a part of Arkindless his estate and Lying within the Bossom of his other Lands, Arkindlas younger fearing that others who were dealling in that matter might acquire the Lands, which might prove very uneasie to him thought fitt to acquyre right to the same from Auchinbreck, and Auchinbreck when he accuyred the Lands from Frieland having given bond for six thousand merks of the pryce young Arkindlass procures ane assignatione from Sprewell of Auchinbrecks bond in order to the Clearing with Auchinbreck as to the price and this being the matter of fact Which if need were can be instructed by the progress of the wrytes, if the parties hade been cited and heard upon ther Just defences no such act could have past against them for ane aliement to the said Robert Campbell, For first to Arkindlas elder (who is the only person decerned as heritor by the said act to pay the five hundred merks of aliement) he Could never have been Lyable for the same Because he was not concerned in the affair any maner of way, The right of the Lawes not being made to him nor was he in possession of the samen by quhich it evidently appears how absolutely groundles the said act is secondly young Arkindlas can never be Lyable for the said aliement, nor could any such aliement be appointed Because he truely and bona fide acquired right to the Lands from Auchinbreck and was be vertue therof in possessione, and it was most absurd to pretend that after a man is denuded of his estate by a legall dilligence and dispones his estate by a Simple and absolute Sale that the buyer should be oblidged to aliement the Seller of his estate and this is truely young Arkindless case Tertio as to which its alledged that the bond granted by the deceast Duncan Campbell to Freeland and the disposition by the said Robert Campbell to him was in trust and that the said Robert was Circumveened in the Bargaine It is answered that the same Is both Calumnious and Irrelevant as to young Arkindlas For first it is absolutely false that ther was either trust or Circumventione in the Case, and albeit ther be a letter alleged to have been wryten by Auchinbreck to the Earle of Broadalbine yet ther is no such letter produced and altho ther hade been such a letter, yet even as is related in the petitione that Auchinbreck did not Covet the bargaine Bot would freely quyt it without Loss this can never Import a quyting of his right far less any trust, But rather the Contrary that seing he will not quyt the bargaine to his Loss this necessarly Imports that he would not quyt it but for ane equivolent value Secundo whatever was betwixt the said Robert Campbell and Freeland young Arkindlas was not concerned seing bona fide bought and accquyred the lands from Auchinbreck tertio the pretended trust and Circumventione was only in matter of Civill right Which was not Competent to be Cognosied by the privy Councill But only by the Lords of sessione Quarto It was never heard of that upon a pretence of trust or Circumventione the buyer of ane estate should be found Lyable to the seller for ane Aliement, For if that were allowed it were ane easie thing for ane man after he has sold his estate To give in a petition to their Lordships upon such false misrepresentationes of purpose to procure ane aliement, and how dangerous a preprative this might be, and how much it might tend to unhinge mens securities his Grace and ther Lordships might easily Judge and the forsaid act appointing the aliement haveing been past without Citatione, and upon the matter without hearing of parties and against Arkindlas elder who is not concerned And Therfore humbly Craveing their Lordships may be pleased to take the premisses to their Consideratione and rescind the forsaid act of Councill and assoylzie the petitioners from the forsaid aliement and if the said Robert Campbell Conceaves he has any ground to quarrell the forsaids rights upon any pretended grounds of Fraud and Circumventione he may pursue before the Judge ordinary as accord of the Law as the petition bears His Majesties high Commissioner and the Lords of his majesties privy Council having heard the foregoing petition given in to them be Sir Collin and James Campbells elder and younger of Arkindlass Read in their presence They3 allowed Robert Campbell of Drumsynie to see and answer the same untill the fourth day of June then nixt and in the mean time Lifted executione upon the Decreet or act of Councill pronunced at Drumsynies instance against the said petitioners for aliement untill the said answers be given in and advysed And the saids Lord high Commissioner and Lords of his majesties privy Councill Haveing againe this day Considered the above petition They heirby Remitt and Referr the point of aliement abovementioned To be insisted in Judged and determined by the Judge ordinary as accords in Law in the same maner as it hade never been intented before the Lords of privy Councill nor any act given or pronunced therin and Turnes the Decreet or act of Councill anent the aliement of five hundred merks into a lybell
1. NRS, PC2/25, 257v.
2. The word ‘wayes’ scored out here.
3. The word ‘heirby’ scored out here.
1. NRS, PC2/25, 257v.
2. The word ‘wayes’ scored out here.
3. The word ‘heirby’ scored out here.