Att Edinburgh 2d July 1702
D1702/7/2
D1702/7/2
Decreet
Decreet the Countes of Sutherland against James Whyte
Anent the principall lybell or letters of Complaint purchased and raised before the Lords of her majesties privie Councill at the instance of James Whyte Comissar Cler of Lauder, and Baily of the Regality of Bunckle and Prestoun with Concurse of Sir James Stewart her majesties advocat for her highnes interest in the matter under written makeing mention that where by the lawes and acts of parliament acts of privie Councill Statutes and dayly practiques of this Kingdom the unlaufull Convocateing of the Leidges specially in a tumultuary way, with armes, such as gunns pistolls swords and other offensive weapons and the resisteing and Contemneing of authority threatneing and minaceing of Judges, and ministers of law, the Imprisoneing of ther persons draggeing of them through the Streets, presenteing of pistolls or mortall weapons to ther breasts, and therewith threatneing to robb them of ther lives, Especially being done when such Judgs are about ther executeing of ther office, and giveing orders direction warrand Commmision Councill Ratihabition of such Cryms and such as Committ them, are all of them and each of them, great and highnous Crymes and Ryots, and such as Committ them, are severely punished by the saids Lawes and acts of parliament, particularly by the one hundred threty and sixth act parliament eight King James Sixth, and fourth act parliament first session first Charles Second, anent the unlaufull Convocateing of the Leidges, and the hundred and fourth act parliament seventh James fifth, and hundred seventy and seventh act, parliament thretteenth James Sixth anent the murmureing against Judges, beateing of or doeing any injury to persons in presence of a Judge or to the Judge himselfe, yet neverthless George Turnbull pretended Baily to the Countes of Southerland, John Sligh and Wiliam Millar his officers Mr Alexander Cockburn his Clerk, James Colluill in Linlow Myles Patrick Geltie the Clerks srvant […] Ingles servitor to Robert Turnbull in Butterdean to Robert Turnbull in Butterdeean mains […] Taylor ane other of his servants Wiliam Purvis servitor to James Cairnes in Bunkle, Robert Temple srvitor to Wiliam Purvis ther, Robert Broun in Brockells and George Broun his sone, Thomas Mitchellson ther, and […] Aitchison his sone, and Robert Turnbull ther, Robert Chiselom servitor to Patrick McCrocket, Gardiner in Prestoun, John Tod in Woodend, John James in West Mayns John Sleigh Called Dubtoun in Prestoun, James Johnstoun, Greenhead ther, James Johnstoun Green foot there, John Purves ther, John Lumsden ther, Wiliam Nisbit ther, John Hume ther, John Wall ther, Adam Black ther, Cristopher Temple ther, and James Thomson ther all armed, with Gunns swords pistolls and other invasive weapons, by the direction order Commission warrand Councill or Ratihabition, of the said Earle and Countes of Southerland, and shakeing off all fear of God and of a good Conscience did wpon the first second or ane or other of the dayes of apryle instant, when he the said James Whyte persuar Bailie Constitute by the Marques of Douglas Comissioners were goeing in a legall and peaceable maner, to hold a Court att Prestoun, for abstracted multures, did Convocat a great many persons from diverse quarters of the shyre, (with whom they being also all armed with guns swords, pistolls and other weapons, did suround the said persuar, and in a furious maner, did lay hands wpon him, seizeing his sword, declaireing him to be ther prisoner, and when the said James Whyte persuar had prevailed to hear his Commission read, for holdeing of Courts yett notwithstanding thereof and in manifast Contemp of authority they did not only persist in ther forsaid violence by detaineing the persuar prisoner, But the said Mr Alexander Cockburn, one of the defenders did draw from under his Clock ane or two holster pistolls he had Carieing with him, Cocked and presented the same to the persuars breast and with many bloody speaches and oaths, vowed he would shott the dog and Cryed most furiously to the said George Turnbull the other defenders and ther accomplices to Dragg the dogg and Rogue through the gutters, to prison wherewpon, John Sleigh and Wiliam Miller, two of the saids defenders, with the assisstance of the others and ther accomplices did Dragg and Traill the said persuar through a great parte of the street of Prestoun, to the prison in a most barbarous violent and Tumultuous maner, and were like to have torn him in peices and bereaved the said persuar of his life unless he had been rescued by Master Ninian Hume minister of the Gospell, att Prestoun, where through the said haill defenders and the said Earle and Countes as they who gave directions orders Commission warrand or Councill for doeing thereof, or Ratihabition of the samme, are all and every one of them guilty of the forsaid Crymes, Ryots breach of peace, and ought to be severly Censured in ther persons and goods, to the terror of others to doe the Like in tyme comeing and Condemned in the soume of […] as expenses and damnages, to be modified by the saids Lords of privie Councill, to the said persuar as Sustained ther through, and the said defenders ought and should be Discharged from troubleing and molesting the saids persuars in the due and laufull exercise of his Jurisdiction as Baily of the said Regality of Bunkle in all tyme comeing and anent the Charge given to the forenamed persones defenders to have Compeired personally before the saids Lords, of her 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 of Complaint or lybell raised in the said matter att more length is Contained, and sicklyke anent the lybell or letters of Reconvention purchased and raised att the instance of the said Jean Countes of Southerland, Lady liferentrix of the Regality of Bunkle and Prestoun and George Earl of Southerland her Husband for his interest Mr Alexander Cockburn and John Sleigh Clerk and officer to the said Regality with Concurse of Sir James Stewart his majesties advocat for his highnes interest in the matter underwritten makeing mention that where by the lawes of this and all weell Governed Realms, the tumultuary Convocateing of the Leidges and the assualting of the members of any Court or Judciatory with drawen Swords, and other weapons for bereaveing them of their lives and deforceing them when in the execution of ther office as also the masterfull intrudeing wpon any mans right or possession by Groundless Complaints to the Lords of his majesties privie Councill, and thereby occasioneing great disquiet and expenses to multitudes of the Leidges wrongously Conveened in the saids Complaints, are Crymes highly punishable yet true it is that James Whyte Commissioner Clerk of Lauder, did wpon the twenty nynty of october and first of apryle last by past Convocat a multitude of the Leidges, in the toun of Prestoun, to the number of two or three score and being noticed therefore by George Turnbull the said Countes her Baily deput, of the Lord Regality had no other shift but to pretend to a Commission of Bailiry from the Marques of Douglas while as it is nottourly knowen, that his Lordships authority were upwards of fourty years agoe denunded of the Regality in favors of the said Countes of Southerland whose right and possession of the said Regality this present Marques of Douglas hes solemnly ratified long after his majority, and by letters of date in febrij or march last outterly disclaims any such Commission with allowance to the said Countes to defend her possession against the said James Whyte, as being but ane naughty person, as is more fully mentioned in the saids missive letters Likeas wpon the fourteenth of Janry last, James Rentoun wreight in Prestoun as guilty and Convicted for breach of arreastment, horride sweareing and other Imortalities, and Therefore apprehended in the toun of Prestoun, by the said John Sleich with Concurse of the said Mr Alexander Cockburn Clerk, by warrant and order of the said Baily Turnbull the Laufull magistrat of the place, The said James Whyte with many execrable oaths drew his sword and therewith thrusted violently att the said Mr Alexander Cockburn his breast, to have Killed him, had not the said Mr Alexander warded off the thrust severall tymes, with his stick, att which the said James Whyte was so enraged, that he ordered the said James Rentoun with the Halbert that was in his hand to beat the said Mr Alexander therewith to the Ground and he the said James Rentoun haveing accordingly assaulted with his Halbert, the said Mr Alexander Cockburn persuar had no other Shelter, but by fleight and threatneing to throw stones, was with the officer neccessitat to retire where throw the said James Rentoun, Escaped, Likeas the said James Whyte, finding that the Marques of Douglas had disclaimed all warrand and Commission by his missive letters which wpon the said first of apryle were Read in the said James Whyte his heareing, And he therewpon required by the said Baily Turnbull Magistrat of the place, to desist from all further Convocateing of the Leidges, and disturbeing of the peace, or otherwayes, that his person should be restrained untill tryell were taken of his abuses, he hes in a most Groundless Complaint, he hes Conveened not only ane great multitude of the Inhabitants of the said Regality with the Bailzie and Clerk But Likeways the Earle and Countes of Southerland chargeing them with the detestable Characters of haveing shaken off all fear of God, and become most ryotous abaitters and out hunders of violent disturbers, or the peace by force of armes, and other unjustifiable prcatises in maner mentioned in the Complaint, whilas nothing happned wpon the said Bailie Turnbull and the members of his Court there parte, But a most Justificable defence of the Countes of Southerland her Jurisdiction, and possession, against James Whyts most unwarrantable insult and incroachments att his own hand and without previus declarater and order of law, and of which Crymes of unwarrantable Convocateing of the Leidges assaulteing of the said persuar, Mr Alexander Cockburn with Halbert and Drawen sword and thereby deforceing him and the officer and the wrongous molesting and troubleing of the Leidges, with Groundless Complaints, the saids James Whyts and James Rentoun respective being guilty as actors or airt and parte they ought to be punished in ther persones and Condemned in the soume of […] In name of expenses of Coast Skaith and damnage to the example and terrour of others to Committ the like in tymecomeing, and anent the Charge given to the fornamed persons defenders in the lybell of Reconvention, to have Compeired personally before the saids Lords of his majeties privie Counsell att ane Certain day bygone to have ansuered to the forsaid Complaint, and to have heard and seen such order and Course taken as appertains with Certification as the said principall lybell or Complaint of Reconvention raised in the said mater, and executions therof att more length is Contained, Which two lybells both princiall and Reconvention being wpon the threteenth of June sixteen hunder and nynty nyne years Called in presence of the saids Lords of his majesties privie Councill and then the persuars in the principall Cause Compeareing personally with Sir Patrick Hume Mr David Dalrymple and Mr Wiliam Calderwood ther advocats and the defenders who are also persuars in the Reconvention, Compeareing also personally with Sir Alexander Home Sir Alexander Cuming Mr John Menzies Mr David Forbes, and Sir Walter Pringle ther advocats, the principall lybell and ansuers thereto being read, and the lybell of Reconvention and ansuers thereto being also Read, the saids Lords admitts both both principall lybell and Reconvention to probation and nominats and appoynts, the Earle Mellvill president of privie Counsell the Earles of Lauderdale Loudoun and Leivan the Lord Ross The Laird of Balbarony and the present Lord provost of Edinburgh, to be a Commitie for examineing witneses in the matter, and Recomends to them to indeavour to Setle and agree the parties primo and incaise of dificulty to examine the witneses who being personally present as marked in the Rolls of both lybells made faith att the barr, and It being objected against the witneses Cited by the persuars of the Reconvention That they are defenders Called in the principall lybell, The saids Lords resrves all objections which may be made or proponed against the witneses, in both processes to be proponed and discust before the said Commity and recomends to the Commity to Consider the writtes papers and parchments, produced for aither parties in aither of the saids proceses and Recomends to the said Commity to meet to Morow att ten in the fornoon, and declaires any three of them to be a sufficient Quorum, Which Commity haveing accordingly mett att severall dyets, and not being able to agree the parties they took and received the depositiones and oaths of diverse and sundry famous witneses for either parties, who being solemnly swore, examined and Interrogatt in the said matter, wpon ther great oathes, deponed and declaired as ther depositiones extant in proces bears, and the saids Lords of his majesties privie Counsell by ther Interloquitor of the daite the twenty seventh of July nynty nyne, Declaired that the they would advyse both principall lybell and Reconvention the second Councill day of november then nixt to Come, and in the mean tyme, discharged all perties Concerned whither the Marques of Douglas or Countes of Southerland or any other person whatsomever, to exercise any Jurisdiction by themselves or ther Bailies or deputs within the Bailery or Regality of Bunckle and Prestoun, untill the said second Councill day of november, and the adyseing of the said proces, being delayed till that day wes bgyone, the saids Lords of his majesties privie Councill be ther Interloquitor, of the fourteenth of november, 1699 declared that they would advyse both the principall proces and proces of Reconvention upon tuesday then neixt, being the tuenty first of the said moneth, of november and ordained both parties to be present, and attend the Councill the said day, and to have ther writtes Ready, and the saids Lords of his majesties privie Councill haveing wpon the said tuenty first of november proceeded to advyse both the saids, proceses, and haveing heard the depositions taken, wpon both proceses read in ther presence and declinator being given in for for the Earle and Countes of Southerland, against the Duke of Queensberry Earles of Levan and Anandale Lord Jedburgh and Lord Philiphaugh Wpon this Declinator the Earles of Lothian Anandale and Forfar who were att the Councill boord, declined themselves and rose from the boord, and the saids Lords haveing heard both parties Informations read in ther presence the Councill recomended to the Lords of Councill and Session, to Discuss and determine summarly the poynt of right betwixt both parties, as to the exercise of a Jurisdiction of a Baily of Regality of Prestoun and Bunkle, and right of Constituteing a Bailie therein, and superceed the advyseing of any ryot wpon the proces lybelled before the Councill untill the said poynt of Right were determined before the saids Lords of Session, as ane act and remitt extracted thereanent of the date the twenty first of november sixteen hunder and nynty nyne yeares, beares, after the poynt of Right was discusst before the Lords of Session, Conform to the above remitt to them, (and decreet of declarator pronounced by the Lords of Session in favours of the Earl of Southerland therupon dated, the […] day of […] 16[…] years) The said Countes and Earle of Southerland, gave in a petition to the saids Lords of his majesties privie Councill Showeing that where in the mutuall Complaints att the instance of the petitioner, as infeft in the Regality of Buncle and Prestoun, for her liferent use, and George Turnbull her Baily of the said Regality, one the one parte and James Whyte Comissary Clerk of Lauder, as pretended Baily of the said Regality Commissionat by the trusties for the Marque of Douglas, one the other parte, the saids Lords allowed muttuall probations to be aduced as to aither parties, possession of the said Jurisdiction, by ther exiseing the office and the petitioner haveing proven not only deeds of possession since sixty two year of God But Likewayes That preceeding october nynty eight (which was the first tyme Mr Whyts ineffectuall attempts of Interuption ) she was in the Constant and peaceable possession of the said Jurisdiction ever since the happy revolution without any kind of Interuption, and Consequently her resisting of the said Whyte his attemps, was no act of violence or Ryot but a necessary defence of her own possession, the saids Lords by ther Interloquitor before ansuer to the ryot, Remmitted the poynt of right to be Summarly discussed before the Lords of Session, true it is that the Lords of Session have by ther decreet of Declarator herewith produced and pronunced on ther Lordships said Remitt found that that quo ad these my liferented lands within the said Regality I have the unquestionable right to the Jurisdiction of of Regality dureing my lifetyme wherethrow and in respect of the pregnancy of the probation adured by me as to my possession Conform to my said right and lying before the saids Lords; It is humbly hoped the saids Lords will find she was versars in licito by defending her said right, and possession against the said Mr Whyte his most illegall usurpationes and Inccroachments, and Consequently that the petitioner and her Bailie and Clerk ought not only to be now assolzied from the said most groundless and unjust Complaint, but that the said Whyte ought to be punished for his said usurpation, and Likewayes decerned in the soume of five hundred and seventy five pound seven shilling six pennies scots of expenses that he hes putt them too now near nyne moneths bypast by his malicious and Contentious debateing both before their Lordships and the Session, Conform to ther accompts thereof herewith produced, partly debursed by themselves, and partly by their tenants from whom they have assignations, specially Considering that the mallice of him the said Whyte rested not att the said Councill Complaints, But went further lengths, In so farras notwithstanding ther Lordships discharged either parties exerciseing of acts of Jurisdiction, dureing the dependance of the saids Complaints he hes adventured wpon the harasseing of the petitioners tenants, by poynding or otherwayes stresseing them wpon his pretended decreets in absence, for ther not Compearance att his unlaufull Courts, as severalls of the Coppies and Charges of Horning herewith produced Can testyfie, wherethrow the payments of the petitioners rents have been So farr retarded that litle or nothing of her martimes rents, are payed, and her land like to be laid weast throw severalls of the tenants, there renunceing of ther tacks, and all this occasioned by the said Whyte his unwarrantable practises aforsaid which amounts to no small loss and damnage to the petitioner, in respect of the expenses of plea and otherwayes as said is and Therefore Craveing since here interest in the Jurisdiction in poynt of Right is now declaired as said is, by the Lords of session, It was humbly Intreated the saids Lords, would be pleased to Call for, and adyvse the petitioners said probation, as to the poynt of possession and that the saids Lords would not only assolzie her from Mr Whyts mallicious Complaint but Likewayes decern him, in the petitioners saids expenses, Conform to the accompts given in and discharge him from holdeing Courts within the Barronies of Bunkle and Prestoun So long as the petitioner lives, as the said petition bears, Which petition being wpon the sixth of June seventeenth under years, read in presence of the saids lords, of his majesties privie Counsell, They allowed James Whyte and others above Complained wpon, to see the same and make answers thereto against the threteenth of June then instant and accordingly the said James Whyte Commisar Clerk of Lauder, haveing seen the said petition he gave in the petition under writen by way of ansuer thereto Showing That where the petitioner haveing intented a proces of Ryot, and deforcement, against George Turnbull Baily to the Countes of Southerland, and his associats for Convocateing the Leidges in armes, attackeing attackeing threatning dragging and makeing him prisoner while he was in the exercise of his office as Baily by the late Marques of Douglass, and his noble friends and trusties, Ther was a mutuall probation allowed, and aduced by either party in relation to the ryot and possession, and the poynt of Right remitt to the Lords of session, the petitioner is Informed ther is a petition given in to his Grace and Lordships, in name of the Countes and Earle of Southerland, Craveing that in respect the poynt of Right is now determined by the Lords of Session the saids Lords would be pleased to advyse the probation as to the poynt of Ryot, and possession, and to assolzie the defenders, and to decern me in expenses, as to which the petitioners humbly begs live to represent uno/ That ther is in the said petition, some matters of fact advanced which are unknowen, to the petitioners proces and only Can be Cleared by himselfe, and the petition seems to have been Callculat, of design to Catch advantage of him while he was absent, and neccessarly detained by vertue of his office in the Countrey, whereas, if he had sufficient tyme to Inform his Grace and ther Lordships, of the matter of fact and State of the proces, It would evidently appear, that he hes the only Just ground to Complain, and Crave redress of the injuries and abuses done to him, 2do/ The petition seems not only to have Catched advantage, of the petitioners absence, but Likewayes of the absence of the noble persons the late marqueses trusties from whom, the petitioner had the Commission, whose presence seems neccessarly to the determineing of this matter Especially the marques being since dead and seing the petitioner was the persuer the only party leased, and have fully proven the lybell, as shall be made appaer att advyseing and that the Countes of Southerland Can receave no prejudice the poynt of Right being determined by the Lords of session, whereby she is declaired to have the privelege of a Regality as to her Joyntur lands and the Marques as to the Remander, and That the petitioners office att present Cannot weell dispense with his absence, It was humbly begged his Grace and the saids Lords would be pleased to allow him some Competent tyme for Comeing to Edinburgh and to see the proces, and to be heard before advyseing, as the said petition by way of ansuer bears, which petition above written given in by the Countes of Southerland, and Earle of Southerland her Husband with the above petition given in by the said James Whyte, by way of ansuer, thereto, being wpon the threeteenth day of June seventeen hunder years Read in presence of his majesties high Commissioner and Lords of privie Councill, the appoynted the macers of privie Councill, to advertise the Comity appoynted in the proces, depending betwixt the saids parties viz the Earle of Mellvill president of privie Councill, the Earles of Lauderdale Loudoun and Leivan, The Lords Ross and the present Lord provest of Edinburgh, to meet again the morow att ten acloak in the fornoon, and recomended to the said Commity to endeavour to setle and agre both parties to attend the Councill against tuesday thereafter and declared they would hear them in the saids proceses wpon that day and Declared […] of the said Commity to be a sufficient quourm, Thereafter the saids Lords of his majesties privie Counsell, haveing severall tymes delyed the advyseing of the saids mutuall proceses and untill wpon the fifth of febry seventeen hunder and two years, the saids Lords of his majesties privie Councill nominated and appoynted the Earle of Melvill Lord president of Councill Lord Montgomery and Lord Boyle to be a Comity to meet and endeavour to setle, and agree the said Countes of Southerland and the said James Whyte, as to the two proceses depending hinc Inde efore the Councill, and recomended to them to meet the morow thereafter att ten acloak in the fornoon, and the said Commity having mett, they gave ther opinion and report wherof the tenor followes viz the Lords of the Commity to whom It was remitted, to meet with the said Countes and Earle of Southerland, anent the proceses of Ryot and Intrusion wpon the said Countes her right of Jursdiction of the Regality of Buncle and Prestoun against James Whyte Commissioner Clerk of Lauder, et a Contra, haveing mett and Communed with the said Earle and Countes thereanent, and that it was demanded by them that Mr Whyte should be decerned to repay fifty pounds four shilling scots which he exacted from the Countes tenants, of her liferent lands dureing the dependance of the proces, not withstanding of the Councills prohibition 2do/ that Mr Whyte should grant bond to the said Countes of Southerland, for ane thousand merks scots, as the expenses debursed by them, in defence of my Ladies right, which bond (for the respect and kydnes she beares to the famely of Douglas) her Lordship is Content to putt in the hands of my Lord Chancellour, or the Marques of Anandale, to be given wp to Mr Whyte how soon he shall give bond and surety not exact the Same (nor the expenses debursed by him or others in the said proces) off the Marques of Dowglass 3dly That Mr Whyte doe acknowledge his fault in Incroacheing wpon my Ladyes Jurisdiction of Regality and Crave her Lordship and my Lord pardon therefore 4thy that the Countes and Earle of Southerland and ther Baily and members of Court etc be assolzied from Mr Whyts Complaint, and proces, and that he be Discharged from further troubleing and mollesting my Ladyes tenants in all tyme comeing which overturs and proposalls the said commity thought reasonable, and agreed thereto, to be reported to the Councill ther nixt meeting sic subscribitur Melvill Boyll, which report above written being read this day in presence of and Considered by his majesties privie Councill, They hereby approve thereof, Thereafter the said James Whyte gave in a petition to the saids Lords, Reclameing against the forsaid Report and approbation thereof, by the saids Lords, of privie Councill, and Craveing that the saids Lords would be pleased to stop ther former Interloquitor and to advyse the probation, led and adduced by either partie before the saids Lords, and to allow the petitioner, and the Marques ther procurators to be heard att advyseing Which petition Showeth that where the Marques of Douglas haveing been alwayes in the Constant exercise of the Jurisdiction of the said Regality by appoynteing of Bailies and holding Courts and the petitioner haveing by vertue of a Commission from the late Marques of Dowglas, and his noble friends his trusties, holden, severall Courts without any Interuption or mollestation, my Lady Southerland gave in a Commission to her Baily and sent letters to severalls of the vassells and tenants to provide themselves, with ther best armes, fixed and Loaded and attend the Bailie under the Certyfication of the Ladies highest displeasure who accordingly being Convocat, when the petitioner to hold a Court in the usewall maner, did with armed force, and violence lay hold on the petitioner, Dragg him through the streets detain him prisoner for a Considerable Space and were Goeing to lay him in prison if It had not been by the Intercession, of the minister of the place, that the petitioner was rescewed out of ther hands, The petitioner haveing raised a proces against the Countes and Earle of Southerland, for this attrocius violence, and Ryot Commited on the petitioner while he was in the exercise of the Jurisdiction for which he had a Commissoin, from the late Marques and his friends, in maner forsaid, and my Lady Southerland, haveing raised a Counter proces, of Reconvention the saids Lords allowed either partie a Conjunct probation, as to the deeds of violence lybelled and the possession of the Jurisdiction, and accordingly ther was a probation laid by either partie, and whereby the petitioner hes proven notorly the Marques possession, by giveing Comission to Bailies and ther holding of Courts, peceablie before the violence lybelled, and the petitioner hes proven by the Ladies letters, her warrand and Commission to her Baily to Conveen and Convocat, themselves with ther best armes, weell fixed and ther violent attackeing of the petitioner, while in the exercise of his office, and ther inhumane and barbarous dragging him, through the streets and detaineing him prisoner as said is, my Lady Southerland being Justly apprehensive of the event of this proces from my probation in maner forsaid, did found her defence wpon the poynt of Right which the saids Lords, did remitt to the Lords of Session, and resrved the Consideration of the Ryot, till the poynt of right were determined, The Lords of Session did advyse the poynt of Right, and found that she had not Simplie the Jurisdiction of the Regality but only within the bounds of the property, of the lands liferented by her, After the poynt of right was determined by the Lords in maner forsaid my Lady Southerland severall tymes applyed to the saids Lords to have the petitioner fined but allwayes avoided the advyseing of the probation, and the petitioner on the other hand did apply to the saids Lords to have the probation advysed, and to be heard att advyseing as the petition does testifie now the petitioner is surprised to understand that wpon report, of the Earle of Mellvill and my Lord Boyll without heareing of him, the saids Lords have ordered the petitioner to Crave her Ladiship pardon, and to restore back the poynde Goods to the value of five pounds starling or thereby, and him to give a bond of ane thousand merks for my Ladies expenses to be given wp to the Marques, and this wpon the accompt of my Ladies affection to the famely of Dowglas and because the petitioner had intruded wpon her Jurisdiction, As to which he humbly beggs live to Represent 1mo/ That he only acted by vertue of a Commission, from the late Marques and friends and hitherto ther had been any thing amiss the petitioner Cannot be lyable, Secundo my Lady Southerlands right to the Jurisdiction is only qualified and restricted to her liferent, But the Marques the fiar hes still the Jurisdiction, both as Superior over his vassells, and he hes right to the whole Casualities of the Superiority and of the woods milns etc. So that still he hes right to the Jurisdiction distinct from that of my Ladies Liferent, does appoynt and may appoynt Bailies for the ends forsaid, tertio wpon the late marques his death, the proces sell untill it wes untill it wes walkened or he and his tutors Called seing they own ther Commission to him which is not done, Quarto hitherto the Marques had not been foundit wpon poynt of right, and possession in maner forsaid yet seing the petitioner wes in the exercise of his office whereof he had been in possession by holding of many former Courts, my Lady ought to have redressed herselfe legally, But it was a most unjustifiable and attrocius ryot, to Convocat the Leidges, with ane armed force attacked and dragged the petitioner, in maner lybelled and proven, and he is Confident the Saids Lords wpon advyseing the probation will in ther Justice both assolzie me from the Ladies Reconvention, wherein she hes proven nothing, fine her according to the Merite of the Cryme, and Condemne her in large expenses Quinto he is ordained by the report to restore the goods poynded to the value of five pounds Starling or thereby, but nether the poynding nor value is proven, and any thing the petitioner, did was in the exercise of his office, and the Jurisdiction belonging to the Marques distinct from that of my Ladies, As to my ladies affection, to the famely, and his Consigneing a bond for that end of ane thousand merks, with all due Submission to my Lady the petitioner knowes no other testimony of her affection, then by her possession of above twelve thousand merks per annum, belonging to the Marques since the year sixteen hunder and fifty five and the marques nor his tutors, are not seeking any such bond, they being Sufficiently secured of the petitioner, of whom they And Therefore Craveing it might please ther Lordships, to stop the former Interloquitor, and to advyse the probation, led and aduced by aither partie before ther Lordships and to allow the petitioner, and the marques ther procurators to be heard att advyseing by which it is hoped the saids Lords, will find that the petitioner was in the due and legall exercise of his office, and the Lady and those that were convocat in armes by her Commission ar guilty of most violent and attrocious Royts as the said petition bears her majesties high Commissioner and Lords of privie Counsell, haveing wpon the eight of July seventeen hunder and two Considered this petition they adhere to ther former Interloquitor, and refuses the desyre of the petition, and ordains the decreet formerly pronunced to be extracted
Att Edinburgh 2d July 1702
D1702/7/2
Decreet
Decreet the Countes of Sutherland against James Whyte
Anent the principall lybell or letters of Complaint purchased and raised before the Lords of her majesties privie Councill at the instance of James Whyte Comissar Cler of Lauder, and Baily of the Regality of Bunckle and Prestoun with Concurse of Sir James Stewart her majesties advocat for her highnes interest in the matter under written makeing mention that where by the lawes and acts of parliament acts of privie Councill Statutes and dayly practiques of this Kingdom the unlaufull Convocateing of the Leidges specially in a tumultuary way, with armes, such as gunns pistolls swords and other offensive weapons and the resisteing and Contemneing of authority threatneing and minaceing of Judges, and ministers of law, the Imprisoneing of ther persons draggeing of them through the Streets, presenteing of pistolls or mortall weapons to ther breasts, and therewith threatneing to robb them of ther lives, Especially being done when such Judgs are about ther executeing of ther office, and giveing orders direction warrand Commmision Councill Ratihabition of such Cryms and such as Committ them, are all of them and each of them, great and highnous Crymes and Ryots, and such as Committ them, are severely punished by the saids Lawes and acts of parliament, particularly by the one hundred threty and sixth act parliament eight King James Sixth, and fourth act parliament first session first Charles Second, anent the unlaufull Convocateing of the Leidges, and the hundred and fourth act parliament seventh James fifth, and hundred seventy and seventh act, parliament thretteenth James Sixth anent the murmureing against Judges, beateing of or doeing any injury to persons in presence of a Judge or to the Judge himselfe, yet neverthless George Turnbull pretended Baily to the Countes of Southerland, John Sligh and Wiliam Millar his officers Mr Alexander Cockburn his Clerk, James Colluill in Linlow Myles Patrick Geltie the Clerks srvant […] Ingles servitor to Robert Turnbull in Butterdean to Robert Turnbull in Butterdeean mains […] Taylor ane other of his servants Wiliam Purvis servitor to James Cairnes in Bunkle, Robert Temple srvitor to Wiliam Purvis ther, Robert Broun in Brockells and George Broun his sone, Thomas Mitchellson ther, and […] Aitchison his sone, and Robert Turnbull ther, Robert Chiselom servitor to Patrick McCrocket, Gardiner in Prestoun, John Tod in Woodend, John James in West Mayns John Sleigh Called Dubtoun in Prestoun, James Johnstoun, Greenhead ther, James Johnstoun Green foot there, John Purves ther, John Lumsden ther, Wiliam Nisbit ther, John Hume ther, John Wall ther, Adam Black ther, Cristopher Temple ther, and James Thomson ther all armed, with Gunns swords pistolls and other invasive weapons, by the direction order Commission warrand Councill or Ratihabition, of the said Earle and Countes of Southerland, and shakeing off all fear of God and of a good Conscience did wpon the first second or ane or other of the dayes of apryle instant, when he the said James Whyte persuar Bailie Constitute by the Marques of Douglas Comissioners were goeing in a legall and peaceable maner, to hold a Court att Prestoun, for abstracted multures, did Convocat a great many persons from diverse quarters of the shyre, (with whom they being also all armed with guns swords, pistolls and other weapons, did suround the said persuar, and in a furious maner, did lay hands wpon him, seizeing his sword, declaireing him to be ther prisoner, and when the said James Whyte persuar had prevailed to hear his Commission read, for holdeing of Courts yett notwithstanding thereof and in manifast Contemp of authority they did not only persist in ther forsaid violence by detaineing the persuar prisoner, But the said Mr Alexander Cockburn, one of the defenders did draw from under his Clock ane or two holster pistolls he had Carieing with him, Cocked and presented the same to the persuars breast and with many bloody speaches and oaths, vowed he would shott the dog and Cryed most furiously to the said George Turnbull the other defenders and ther accomplices to Dragg the dogg and Rogue through the gutters, to prison wherewpon, John Sleigh and Wiliam Miller, two of the saids defenders, with the assisstance of the others and ther accomplices did Dragg and Traill the said persuar through a great parte of the street of Prestoun, to the prison in a most barbarous violent and Tumultuous maner, and were like to have torn him in peices and bereaved the said persuar of his life unless he had been rescued by Master Ninian Hume minister of the Gospell, att Prestoun, where through the said haill defenders and the said Earle and Countes as they who gave directions orders Commission warrand or Councill for doeing thereof, or Ratihabition of the samme, are all and every one of them guilty of the forsaid Crymes, Ryots breach of peace, and ought to be severly Censured in ther persons and goods, to the terror of others to doe the Like in tyme comeing and Condemned in the soume of […] as expenses and damnages, to be modified by the saids Lords of privie Councill, to the said persuar as Sustained ther through, and the said defenders ought and should be Discharged from troubleing and molesting the saids persuars in the due and laufull exercise of his Jurisdiction as Baily of the said Regality of Bunkle in all tyme comeing and anent the Charge given to the forenamed persones defenders to have Compeired personally before the saids Lords, of her 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 of Complaint or lybell raised in the said matter att more length is Contained, and sicklyke anent the lybell or letters of Reconvention purchased and raised att the instance of the said Jean Countes of Southerland, Lady liferentrix of the Regality of Bunkle and Prestoun and George Earl of Southerland her Husband for his interest Mr Alexander Cockburn and John Sleigh Clerk and officer to the said Regality with Concurse of Sir James Stewart his majesties advocat for his highnes interest in the matter underwritten makeing mention that where by the lawes of this and all weell Governed Realms, the tumultuary Convocateing of the Leidges and the assualting of the members of any Court or Judciatory with drawen Swords, and other weapons for bereaveing them of their lives and deforceing them when in the execution of ther office as also the masterfull intrudeing wpon any mans right or possession by Groundless Complaints to the Lords of his majesties privie Councill, and thereby occasioneing great disquiet and expenses to multitudes of the Leidges wrongously Conveened in the saids Complaints, are Crymes highly punishable yet true it is that James Whyte Commissioner Clerk of Lauder, did wpon the twenty nynty of october and first of apryle last by past Convocat a multitude of the Leidges, in the toun of Prestoun, to the number of two or three score and being noticed therefore by George Turnbull the said Countes her Baily deput, of the Lord Regality had no other shift but to pretend to a Commission of Bailiry from the Marques of Douglas while as it is nottourly knowen, that his Lordships authority were upwards of fourty years agoe denunded of the Regality in favors of the said Countes of Southerland whose right and possession of the said Regality this present Marques of Douglas hes solemnly ratified long after his majority, and by letters of date in febrij or march last outterly disclaims any such Commission with allowance to the said Countes to defend her possession against the said James Whyte, as being but ane naughty person, as is more fully mentioned in the saids missive letters Likeas wpon the fourteenth of Janry last, James Rentoun wreight in Prestoun as guilty and Convicted for breach of arreastment, horride sweareing and other Imortalities, and Therefore apprehended in the toun of Prestoun, by the said John Sleich with Concurse of the said Mr Alexander Cockburn Clerk, by warrant and order of the said Baily Turnbull the Laufull magistrat of the place, The said James Whyte with many execrable oaths drew his sword and therewith thrusted violently att the said Mr Alexander Cockburn his breast, to have Killed him, had not the said Mr Alexander warded off the thrust severall tymes, with his stick, att which the said James Whyte was so enraged, that he ordered the said James Rentoun with the Halbert that was in his hand to beat the said Mr Alexander therewith to the Ground and he the said James Rentoun haveing accordingly assaulted with his Halbert, the said Mr Alexander Cockburn persuar had no other Shelter, but by fleight and threatneing to throw stones, was with the officer neccessitat to retire where throw the said James Rentoun, Escaped, Likeas the said James Whyte, finding that the Marques of Douglas had disclaimed all warrand and Commission by his missive letters which wpon the said first of apryle were Read in the said James Whyte his heareing, And he therewpon required by the said Baily Turnbull Magistrat of the place, to desist from all further Convocateing of the Leidges, and disturbeing of the peace, or otherwayes, that his person should be restrained untill tryell were taken of his abuses, he hes in a most Groundless Complaint, he hes Conveened not only ane great multitude of the Inhabitants of the said Regality with the Bailzie and Clerk But Likeways the Earle and Countes of Southerland chargeing them with the detestable Characters of haveing shaken off all fear of God, and become most ryotous abaitters and out hunders of violent disturbers, or the peace by force of armes, and other unjustifiable prcatises in maner mentioned in the Complaint, whilas nothing happned wpon the said Bailie Turnbull and the members of his Court there parte, But a most Justificable defence of the Countes of Southerland her Jurisdiction, and possession, against James Whyts most unwarrantable insult and incroachments att his own hand and without previus declarater and order of law, and of which Crymes of unwarrantable Convocateing of the Leidges assaulteing of the said persuar, Mr Alexander Cockburn with Halbert and Drawen sword and thereby deforceing him and the officer and the wrongous molesting and troubleing of the Leidges, with Groundless Complaints, the saids James Whyts and James Rentoun respective being guilty as actors or airt and parte they ought to be punished in ther persones and Condemned in the soume of […] In name of expenses of Coast Skaith and damnage to the example and terrour of others to Committ the like in tymecomeing, and anent the Charge given to the fornamed persons defenders in the lybell of Reconvention, to have Compeired personally before the saids Lords of his majeties privie Counsell att ane Certain day bygone to have ansuered to the forsaid Complaint, and to have heard and seen such order and Course taken as appertains with Certification as the said principall lybell or Complaint of Reconvention raised in the said mater, and executions therof att more length is Contained, Which two lybells both princiall and Reconvention being wpon the threteenth of June sixteen hunder and nynty nyne years Called in presence of the saids Lords of his majesties privie Councill and then the persuars in the principall Cause Compeareing personally with Sir Patrick Hume Mr David Dalrymple and Mr Wiliam Calderwood ther advocats and the defenders who are also persuars in the Reconvention, Compeareing also personally with Sir Alexander Home Sir Alexander Cuming Mr John Menzies Mr David Forbes, and Sir Walter Pringle ther advocats, the principall lybell and ansuers thereto being read, and the lybell of Reconvention and ansuers thereto being also Read, the saids Lords admitts both both principall lybell and Reconvention to probation and nominats and appoynts, the Earle Mellvill president of privie Counsell the Earles of Lauderdale Loudoun and Leivan the Lord Ross The Laird of Balbarony and the present Lord provost of Edinburgh, to be a Commitie for examineing witneses in the matter, and Recomends to them to indeavour to Setle and agree the parties primo and incaise of dificulty to examine the witneses who being personally present as marked in the Rolls of both lybells made faith att the barr, and It being objected against the witneses Cited by the persuars of the Reconvention That they are defenders Called in the principall lybell, The saids Lords resrves all objections which may be made or proponed against the witneses, in both processes to be proponed and discust before the said Commity and recomends to the Commity to Consider the writtes papers and parchments, produced for aither parties in aither of the saids proceses and Recomends to the said Commity to meet to Morow att ten in the fornoon, and declaires any three of them to be a sufficient Quorum, Which Commity haveing accordingly mett att severall dyets, and not being able to agree the parties they took and received the depositiones and oaths of diverse and sundry famous witneses for either parties, who being solemnly swore, examined and Interrogatt in the said matter, wpon ther great oathes, deponed and declaired as ther depositiones extant in proces bears, and the saids Lords of his majesties privie Counsell by ther Interloquitor of the daite the twenty seventh of July nynty nyne, Declaired that the they would advyse both principall lybell and Reconvention the second Councill day of november then nixt to Come, and in the mean tyme, discharged all perties Concerned whither the Marques of Douglas or Countes of Southerland or any other person whatsomever, to exercise any Jurisdiction by themselves or ther Bailies or deputs within the Bailery or Regality of Bunckle and Prestoun, untill the said second Councill day of november, and the adyseing of the said proces, being delayed till that day wes bgyone, the saids Lords of his majesties privie Councill be ther Interloquitor, of the fourteenth of november, 1699 declared that they would advyse both the principall proces and proces of Reconvention upon tuesday then neixt, being the tuenty first of the said moneth, of november and ordained both parties to be present, and attend the Councill the said day, and to have ther writtes Ready, and the saids Lords of his majesties privie Councill haveing wpon the said tuenty first of november proceeded to advyse both the saids, proceses, and haveing heard the depositions taken, wpon both proceses read in ther presence and declinator being given in for for the Earle and Countes of Southerland, against the Duke of Queensberry Earles of Levan and Anandale Lord Jedburgh and Lord Philiphaugh Wpon this Declinator the Earles of Lothian Anandale and Forfar who were att the Councill boord, declined themselves and rose from the boord, and the saids Lords haveing heard both parties Informations read in ther presence the Councill recomended to the Lords of Councill and Session, to Discuss and determine summarly the poynt of right betwixt both parties, as to the exercise of a Jurisdiction of a Baily of Regality of Prestoun and Bunkle, and right of Constituteing a Bailie therein, and superceed the advyseing of any ryot wpon the proces lybelled before the Councill untill the said poynt of Right were determined before the saids Lords of Session, as ane act and remitt extracted thereanent of the date the twenty first of november sixteen hunder and nynty nyne yeares, beares, after the poynt of Right was discusst before the Lords of Session, Conform to the above remitt to them, (and decreet of declarator pronounced by the Lords of Session in favours of the Earl of Southerland therupon dated, the […] day of […] 16[…] years) The said Countes and Earle of Southerland, gave in a petition to the saids Lords of his majesties privie Councill Showeing that where in the mutuall Complaints att the instance of the petitioner, as infeft in the Regality of Buncle and Prestoun, for her liferent use, and George Turnbull her Baily of the said Regality, one the one parte and James Whyte Comissary Clerk of Lauder, as pretended Baily of the said Regality Commissionat by the trusties for the Marque of Douglas, one the other parte, the saids Lords allowed muttuall probations to be aduced as to aither parties, possession of the said Jurisdiction, by ther exiseing the office and the petitioner haveing proven not only deeds of possession since sixty two year of God But Likewayes That preceeding october nynty eight (which was the first tyme Mr Whyts ineffectuall attempts of Interuption ) she was in the Constant and peaceable possession of the said Jurisdiction ever since the happy revolution without any kind of Interuption, and Consequently her resisting of the said Whyte his attemps, was no act of violence or Ryot but a necessary defence of her own possession, the saids Lords by ther Interloquitor before ansuer to the ryot, Remmitted the poynt of right to be Summarly discussed before the Lords of Session, true it is that the Lords of Session have by ther decreet of Declarator herewith produced and pronunced on ther Lordships said Remitt found that that quo ad these my liferented lands within the said Regality I have the unquestionable right to the Jurisdiction of of Regality dureing my lifetyme wherethrow and in respect of the pregnancy of the probation adured by me as to my possession Conform to my said right and lying before the saids Lords; It is humbly hoped the saids Lords will find she was versars in licito by defending her said right, and possession against the said Mr Whyte his most illegall usurpationes and Inccroachments, and Consequently that the petitioner and her Bailie and Clerk ought not only to be now assolzied from the said most groundless and unjust Complaint, but that the said Whyte ought to be punished for his said usurpation, and Likewayes decerned in the soume of five hundred and seventy five pound seven shilling six pennies scots of expenses that he hes putt them too now near nyne moneths bypast by his malicious and Contentious debateing both before their Lordships and the Session, Conform to ther accompts thereof herewith produced, partly debursed by themselves, and partly by their tenants from whom they have assignations, specially Considering that the mallice of him the said Whyte rested not att the said Councill Complaints, But went further lengths, In so farras notwithstanding ther Lordships discharged either parties exerciseing of acts of Jurisdiction, dureing the dependance of the saids Complaints he hes adventured wpon the harasseing of the petitioners tenants, by poynding or otherwayes stresseing them wpon his pretended decreets in absence, for ther not Compearance att his unlaufull Courts, as severalls of the Coppies and Charges of Horning herewith produced Can testyfie, wherethrow the payments of the petitioners rents have been So farr retarded that litle or nothing of her martimes rents, are payed, and her land like to be laid weast throw severalls of the tenants, there renunceing of ther tacks, and all this occasioned by the said Whyte his unwarrantable practises aforsaid which amounts to no small loss and damnage to the petitioner, in respect of the expenses of plea and otherwayes as said is and Therefore Craveing since here interest in the Jurisdiction in poynt of Right is now declaired as said is, by the Lords of session, It was humbly Intreated the saids Lords, would be pleased to Call for, and adyvse the petitioners said probation, as to the poynt of possession and that the saids Lords would not only assolzie her from Mr Whyts mallicious Complaint but Likewayes decern him, in the petitioners saids expenses, Conform to the accompts given in and discharge him from holdeing Courts within the Barronies of Bunkle and Prestoun So long as the petitioner lives, as the said petition bears, Which petition being wpon the sixth of June seventeenth under years, read in presence of the saids lords, of his majesties privie Counsell, They allowed James Whyte and others above Complained wpon, to see the same and make answers thereto against the threteenth of June then instant and accordingly the said James Whyte Commisar Clerk of Lauder, haveing seen the said petition he gave in the petition under writen by way of ansuer thereto Showing That where the petitioner haveing intented a proces of Ryot, and deforcement, against George Turnbull Baily to the Countes of Southerland, and his associats for Convocateing the Leidges in armes, attackeing attackeing threatning dragging and makeing him prisoner while he was in the exercise of his office as Baily by the late Marques of Douglass, and his noble friends and trusties, Ther was a mutuall probation allowed, and aduced by either party in relation to the ryot and possession, and the poynt of Right remitt to the Lords of session, the petitioner is Informed ther is a petition given in to his Grace and Lordships, in name of the Countes and Earle of Southerland, Craveing that in respect the poynt of Right is now determined by the Lords of Session the saids Lords would be pleased to advyse the probation as to the poynt of Ryot, and possession, and to assolzie the defenders, and to decern me in expenses, as to which the petitioners humbly begs live to represent uno/ That ther is in the said petition, some matters of fact advanced which are unknowen, to the petitioners proces and only Can be Cleared by himselfe, and the petition seems to have been Callculat, of design to Catch advantage of him while he was absent, and neccessarly detained by vertue of his office in the Countrey, whereas, if he had sufficient tyme to Inform his Grace and ther Lordships, of the matter of fact and State of the proces, It would evidently appear, that he hes the only Just ground to Complain, and Crave redress of the injuries and abuses done to him, 2do/ The petition seems not only to have Catched advantage, of the petitioners absence, but Likewayes of the absence of the noble persons the late marqueses trusties from whom, the petitioner had the Commission, whose presence seems neccessarly to the determineing of this matter Especially the marques being since dead and seing the petitioner was the persuer the only party leased, and have fully proven the lybell, as shall be made appaer att advyseing and that the Countes of Southerland Can receave no prejudice the poynt of Right being determined by the Lords of session, whereby she is declaired to have the privelege of a Regality as to her Joyntur lands and the Marques as to the Remander, and That the petitioners office att present Cannot weell dispense with his absence, It was humbly begged his Grace and the saids Lords would be pleased to allow him some Competent tyme for Comeing to Edinburgh and to see the proces, and to be heard before advyseing, as the said petition by way of ansuer bears, which petition above written given in by the Countes of Southerland, and Earle of Southerland her Husband with the above petition given in by the said James Whyte, by way of ansuer, thereto, being wpon the threeteenth day of June seventeen hunder years Read in presence of his majesties high Commissioner and Lords of privie Councill, the appoynted the macers of privie Councill, to advertise the Comity appoynted in the proces, depending betwixt the saids parties viz the Earle of Mellvill president of privie Councill, the Earles of Lauderdale Loudoun and Leivan, The Lords Ross and the present Lord provest of Edinburgh, to meet again the morow att ten acloak in the fornoon, and recomended to the said Commity to endeavour to setle and agre both parties to attend the Councill against tuesday thereafter and declared they would hear them in the saids proceses wpon that day and Declared […] of the said Commity to be a sufficient quourm, Thereafter the saids Lords of his majesties privie Counsell, haveing severall tymes delyed the advyseing of the saids mutuall proceses and untill wpon the fifth of febry seventeen hunder and two years, the saids Lords of his majesties privie Councill nominated and appoynted the Earle of Melvill Lord president of Councill Lord Montgomery and Lord Boyle to be a Comity to meet and endeavour to setle, and agree the said Countes of Southerland and the said James Whyte, as to the two proceses depending hinc Inde efore the Councill, and recomended to them to meet the morow thereafter att ten acloak in the fornoon, and the said Commity having mett, they gave ther opinion and report wherof the tenor followes viz the Lords of the Commity to whom It was remitted, to meet with the said Countes and Earle of Southerland, anent the proceses of Ryot and Intrusion wpon the said Countes her right of Jursdiction of the Regality of Buncle and Prestoun against James Whyte Commissioner Clerk of Lauder, et a Contra, haveing mett and Communed with the said Earle and Countes thereanent, and that it was demanded by them that Mr Whyte should be decerned to repay fifty pounds four shilling scots which he exacted from the Countes tenants, of her liferent lands dureing the dependance of the proces, not withstanding of the Councills prohibition 2do/ that Mr Whyte should grant bond to the said Countes of Southerland, for ane thousand merks scots, as the expenses debursed by them, in defence of my Ladies right, which bond (for the respect and kydnes she beares to the famely of Douglas) her Lordship is Content to putt in the hands of my Lord Chancellour, or the Marques of Anandale, to be given wp to Mr Whyte how soon he shall give bond and surety not exact the Same (nor the expenses debursed by him or others in the said proces) off the Marques of Dowglass 3dly That Mr Whyte doe acknowledge his fault in Incroacheing wpon my Ladyes Jurisdiction of Regality and Crave her Lordship and my Lord pardon therefore 4thy that the Countes and Earle of Southerland and ther Baily and members of Court etc be assolzied from Mr Whyts Complaint, and proces, and that he be Discharged from further troubleing and mollesting my Ladyes tenants in all tyme comeing which overturs and proposalls the said commity thought reasonable, and agreed thereto, to be reported to the Councill ther nixt meeting sic subscribitur Melvill Boyll, which report above written being read this day in presence of and Considered by his majesties privie Councill, They hereby approve thereof, Thereafter the said James Whyte gave in a petition to the saids Lords, Reclameing against the forsaid Report and approbation thereof, by the saids Lords, of privie Councill, and Craveing that the saids Lords would be pleased to stop ther former Interloquitor and to advyse the probation, led and adduced by either partie before the saids Lords, and to allow the petitioner, and the Marques ther procurators to be heard att advyseing Which petition Showeth that where the Marques of Douglas haveing been alwayes in the Constant exercise of the Jurisdiction of the said Regality by appoynteing of Bailies and holding Courts and the petitioner haveing by vertue of a Commission from the late Marques of Dowglas, and his noble friends his trusties, holden, severall Courts without any Interuption or mollestation, my Lady Southerland gave in a Commission to her Baily and sent letters to severalls of the vassells and tenants to provide themselves, with ther best armes, fixed and Loaded and attend the Bailie under the Certyfication of the Ladies highest displeasure who accordingly being Convocat, when the petitioner to hold a Court in the usewall maner, did with armed force, and violence lay hold on the petitioner, Dragg him through the streets detain him prisoner for a Considerable Space and were Goeing to lay him in prison if It had not been by the Intercession, of the minister of the place, that the petitioner was rescewed out of ther hands, The petitioner haveing raised a proces against the Countes and Earle of Southerland, for this attrocius violence, and Ryot Commited on the petitioner while he was in the exercise of the Jurisdiction for which he had a Commissoin, from the late Marques and his friends, in maner forsaid, and my Lady Southerland, haveing raised a Counter proces, of Reconvention the saids Lords allowed either partie a Conjunct probation, as to the deeds of violence lybelled and the possession of the Jurisdiction, and accordingly ther was a probation laid by either partie, and whereby the petitioner hes proven notorly the Marques possession, by giveing Comission to Bailies and ther holding of Courts, peceablie before the violence lybelled, and the petitioner hes proven by the Ladies letters, her warrand and Commission to her Baily to Conveen and Convocat, themselves with ther best armes, weell fixed and ther violent attackeing of the petitioner, while in the exercise of his office, and ther inhumane and barbarous dragging him, through the streets and detaineing him prisoner as said is, my Lady Southerland being Justly apprehensive of the event of this proces from my probation in maner forsaid, did found her defence wpon the poynt of Right which the saids Lords, did remitt to the Lords of Session, and resrved the Consideration of the Ryot, till the poynt of right were determined, The Lords of Session did advyse the poynt of Right, and found that she had not Simplie the Jurisdiction of the Regality but only within the bounds of the property, of the lands liferented by her, After the poynt of right was determined by the Lords in maner forsaid my Lady Southerland severall tymes applyed to the saids Lords to have the petitioner fined but allwayes avoided the advyseing of the probation, and the petitioner on the other hand did apply to the saids Lords to have the probation advysed, and to be heard att advyseing as the petition does testifie now the petitioner is surprised to understand that wpon report, of the Earle of Mellvill and my Lord Boyll without heareing of him, the saids Lords have ordered the petitioner to Crave her Ladiship pardon, and to restore back the poynde Goods to the value of five pounds starling or thereby, and him to give a bond of ane thousand merks for my Ladies expenses to be given wp to the Marques, and this wpon the accompt of my Ladies affection to the famely of Dowglas and because the petitioner had intruded wpon her Jurisdiction, As to which he humbly beggs live to Represent 1mo/ That he only acted by vertue of a Commission, from the late Marques and friends and hitherto ther had been any thing amiss the petitioner Cannot be lyable, Secundo my Lady Southerlands right to the Jurisdiction is only qualified and restricted to her liferent, But the Marques the fiar hes still the Jurisdiction, both as Superior over his vassells, and he hes right to the whole Casualities of the Superiority and of the woods milns etc. So that still he hes right to the Jurisdiction distinct from that of my Ladies Liferent, does appoynt and may appoynt Bailies for the ends forsaid, tertio wpon the late marques his death, the proces sell untill it wes untill it wes walkened or he and his tutors Called seing they own ther Commission to him which is not done, Quarto hitherto the Marques had not been foundit wpon poynt of right, and possession in maner forsaid yet seing the petitioner wes in the exercise of his office whereof he had been in possession by holding of many former Courts, my Lady ought to have redressed herselfe legally, But it was a most unjustifiable and attrocius ryot, to Convocat the Leidges, with ane armed force attacked and dragged the petitioner, in maner lybelled and proven, and he is Confident the Saids Lords wpon advyseing the probation will in ther Justice both assolzie me from the Ladies Reconvention, wherein she hes proven nothing, fine her according to the Merite of the Cryme, and Condemne her in large expenses Quinto he is ordained by the report to restore the goods poynded to the value of five pounds Starling or thereby, but nether the poynding nor value is proven, and any thing the petitioner, did was in the exercise of his office, and the Jurisdiction belonging to the Marques distinct from that of my Ladies, As to my ladies affection, to the famely, and his Consigneing a bond for that end of ane thousand merks, with all due Submission to my Lady the petitioner knowes no other testimony of her affection, then by her possession of above twelve thousand merks per annum, belonging to the Marques since the year sixteen hunder and fifty five and the marques nor his tutors, are not seeking any such bond, they being Sufficiently secured of the petitioner, of whom they And Therefore Craveing it might please ther Lordships, to stop the former Interloquitor, and to advyse the probation, led and aduced by aither partie before ther Lordships and to allow the petitioner, and the marques ther procurators to be heard att advyseing by which it is hoped the saids Lords, will find that the petitioner was in the due and legall exercise of his office, and the Lady and those that were convocat in armes by her Commission ar guilty of most violent and attrocious Royts as the said petition bears her majesties high Commissioner and Lords of privie Counsell, haveing wpon the eight of July seventeen hunder and two Considered this petition they adhere to ther former Interloquitor, and refuses the desyre of the petition, and ordains the decreet formerly pronunced to be extracted
