Decreet, 29 December 1698, Edinburgh

Att Edinburgh the first day of March J^aj vi^c nyntie eight yeirs

D1698/3/3

D1698/3/3¹

Decreet

Interloquitor and Comissione James Stewart Against John Stewart and the magistrats of Montrose

Anent the lybell or Letters of complaint raised and persewed befor The Lords of his majesties privie Counsell at the instance of James Stewart Servitor to The Earle of Southesqe with concurse of Sir James Stewart his majesties advocat for his highnes interest in the mater wnderwritten Mentioning That wher all open and manifest fraud and wnjust designes in carieing away and imbazleing the fortwne of any persone efter his decease from his trwe and Laufull air and nearest of Kinn and endeavoureing to convey the Same to any other persone who is aither of no relatione to the persone deceast or not so near to him as the persone who hes bein Served air Are by the Laues of all well governed realmes and by the Lawes and acts of parliament of this natione are Crymes of a high nature and Severely pwnishable and Speciallie magistrats of Burghs who ought to be executors and dispenders of the Law to others haveing a hand in Swch contriveances ought and Should be Severely pwnished Yet trwe it is That David Stewart Late in Barbadoes haveing died ther and Left a considerable fortwne behind him both of Land and money the Said James Stewart Complainer did prove his propinqwitie of blood be famows witnesses befor the magistrats of Montrose Beareing him to be descended of John Stewart brother to the said David Stewart and that the said David was his grand wncle whose testimonies and depositions were signed by the proveist and baillies of Montrose and the townes Seall appended therto and the Said Complainer was also served and retourned as the only true and nearest air to the said David Yet John Fullartone of Kinnaber Mr Isaac Fullartone advocat his brother Hercules Smith merchand in Montrose ther brother in Law and Alexander Turnbull present proveist of Montrose Alexander Turnbull George Auchterlony Baillies ther and Andrew Craik clerk ther John Stewart Shoemaker in Bonetowne and James Williamsone in Collone of Uestertowne in the paroch of Criaig Concurring with Mr Thomas Fullartone brother to the said John Fullartone of Kinnaber and Sometyme acturneyes in Barbadoes (who as appears by Severall of his Letters therwith produced had ane wnjust designe to defraud the said David Stewart his nearest of kin of his estate both in money and Land) Did contrive amongst themselvs to gett ane other persone of the name of Stewart² proven to be of kin and relatione to the Said David Stewart as is evident by a Letter from Kinnaber to The Earle of Sowthesque Albeit they knew that the said James Stewart complainer had alreadie proven his propinqwitie of blood to the said David Stewart and was air served and retourned to him and for that end they addwced William Chrystie dweller in the paroch of Craig and the said James Williamsone two witnesses who were beggars and knew nothing of the affair But deponed as they were instructed as appears evidently in that the one of them William Chrystie makes it cleare in his depositione that he did not soe much as know in what paroch Greenden is thowgh he depones that to be the place wher the said David Stewart was borne and wher he knew his father James Stewart and his mother Grizall Carnegie liveing expresslie asserting it to be in the paroch of Farnwell wheras it is in the paroch of Kinnaird and the other James Williamsone being brought befor Robert Reynold Late proveist of Montrose and William Coults Late baillie ther (by the said Mr Isaac Fullartowne requyreing them to take his depositione) was not able to ansuer any of the interrogators putt to him but was soe confounded that the proveist commanded him away And being prevailled on efter the Court by the said Mr Isaac with his brother Kinnaber and ther good brother Hercules Smith to hear him propose the interrogators the said Williamsone was not able to answer even in the method Mr Isaac proposed the qwestions All which the Said proveist and baillie can depone And even by ther depositiones they only prove John Stewart Shoemaker in Bounetonne to be descended of ane wncle of the Said David Stewarts wheras James Stewart the Earle of Southesques Servant is proven to be descended of Davids brother and Soe the nearer relatione and the trwe air Notwithstanding wherof they have made wse of this probatione haveing gotten Alexander Turnbull present proveist of Montrose Alexander Turnbull his Sone and George Auchterlonie present baillies ther to Signe the Samen and Andrew Craik clerk as notar to subscribe for the wittnesses and to append ther townes seall therto And they have sent this probatione So attested away with a Letter of acturney from the said John Stewart to some persone in Barbadoes to intromet with uplift and dispose upon the said David Stewart his effects ther Kinnaber haveing transacted with the said John Stewart for a Small and inconsiderable Soume By all which it is evident that the said John Fullartoune of Kinnaber Mr Isaac Fullartoune his brother Hercules Smith ther good brother and John Stewart Shoemaker are gwiltie of open and manifest frawd and most wnjust designes in carieing away and imbazleing the said David Stewart his fortoune in prejudice of the said James Stewart Complainer his only trwe air which can be interpret to be no Less then Robbertie and thift and the Said Alexander Turnbull proveist of Montrose Alexander Turnbull his Son and George Auchterlony baillies ther who took the Last probatione infavoures of the said John Stewart and Andrew Craik ther clerk who Subscribed as notar for the wittnesses are airt and pairt in the said wicked and fraudulent contriveance Seing the said James Stewart complainer had Led his probatione befor the Last magistrats of the Same burgh and had ther Subscriptions and ther seall appended therto and was served air to his said Grand wncle befor them and the said present magistrats ther Signeing the depositiones in favoures of the said John Stewart and appending the seall of the burgh therto being contrair to what the former magistrats had done efter ane exact and fwll tryell taken befor them for proveing the said James Stewart Complainer his propinqwitie and his being trwe air to the said David Stewart his Grandwncle is a reflectione upon the Justice and eqwitie of the natione And therfor the foirnamed persones ought not onlie to be decerned to send a contrair declaratione recalling the Last and acknowledgeing the said James Stewart Complainer his propinqwitie and attesting that he is the only nearest and true air to the said David Stewart And that he only hath right to the said David his haill estate in Land and money But also to find Sufficient Cautione to make up what prejudice or damnadges he hath Sustained or Shall Sustaine though ther former attestationes and the Letter of acturney following theron And alsoe to be pwnished in ther persones and goods to the terror of others and to prevent the Like wicked and fraudulent contriveances in tyme comeing And anent the charge given to the saids defenders to have compeared personallie before the saids Lords of his majesties privie Counsell at ane certaine day now bygone to have ansuered to the ground of the above complaint and have heard and sein such order and course taken theranent As the saids Lords Should think fitt under the paine of rebellion etc As in the principall Lybell or Letters of complaint with the executiones therof at more Lenth is contained As also anent ane other Lybell or Letters of complaint raised and perswed befor the saids Lords of privie Cownsell at the instance Alexander Turnbull present proveist of Montrose Alexander Turnbull and George Auchterlony Baillies ther Mr Isaac Fullartowne advocat Hercules Smith merchant in Montrose John Stewart Shoe maker in Bonetowne James Williamsone in Catton of Westertowne with Concurse of Sir James Stewart his majesties advocat for his highnes interest in the mater wnderwritten Mentioning That wher by the Laues of this and all uell governed nationes the tradwceing and defameing of our Leidges as gwiltie of theift and robberie is Severely pwnishable Especiallie these callumnies are reduced into infamows Lybells misrepresenteing persones of honor and integritie to the government And sicklyke by the one hundereth and fourtie act parliament fourtein King James the fifth It is staitut and ordained that if any persone murmurr against any Judge and proveth not a Sufficient ground for the Same he shall be pwnished with tinsell of his honor fame and dignitie and by the Lawes and custome of this natione Such persones as have not fame or dignitie to Lose ought to be pwnished in ther persones to the terror of others to Comitt the Lyke wher the meanes of ther conditione exempts them from the ordinary pwnishment As also by the tuentie Seventh act parliament Seventh James the fifth It is provided that whosoever Should molest trouble or wnqwiet the proveist and baillies of any burgh in wseing ther Liberties and priviledges they Should undergoe the paine of comon of oppressors And Likewise by the Lawes and customes of this kingdome the practizieing of wittnesses and makeing them depone for takeing away the Just rights of any of the Leidges by Setting up ane imposture as a true Successor of a defwnct to the exclusione of the Lineall Successor by blood whill the said reall and true Successor had commenced his probatione that soe the same might be transmitted to be cognosced by the Judges abroad wher the Subject did lye be of most daingerows conseqwences tending to the interversione of the propertie of our Leidges and the Subversione of the faith of publict Judicators Yet trwe it is and of veritie That James Stewart Servitor to The Earle of Southesque with concurse and assistance of Mr James Martine Late regent in Standrews is gwiltie of the crymes befor mentioned or ane or other of them in so far as primo he the said James Stewart by instigatione of the foirsaid Mr James Martine did wnjustly contrive the defrauding of the Complainer John Stewart in Bonetoun of his trwe interest which he hes right to as nearest of kin to the deceast David Stewart who died Lately in Barbardoes as appears by the following accompt of ther procedure viz Mr Thomas Fullartoune Late Sollicitor generall in Barbadoes haveing given ane accompt by a Letter to his brother The Laird of Kinnaber That the said David Stewart had told to him the said Mr Thomas his pedegrie and place of his nativitie in Scotland and particularlie that he had ane wncle called Robert Stewart of whom the said Complainer John Stewart he proved himself to be the grandchyld but no wayes mentioned that he had any brother wherupon the said Mr Thomas desyred Kinnaber to find out the defuncts nearest relatione and transmit the affidavits therof taken befor the magistrats of Montrose Conforme to the English forme that so the Successione might not fall to the […] According wherunto the said Complainer John Stewart adduced Some witnesses and particularly William Chrystie who proved his propinqwitie befor the magistrats of Montrose But Kinnaber haveing published the Letter and Mr Martine haveing gott ane of the doubles therof the said James Stewart is […] and resolveth to auteriorat the said Complainer And in order therto ther are wittnesses made to Signe oathes befor the minister of Kinnaird for proveing that the said James did descend of the defuncts brother that soe these witnesses might be fixed against recanting when they came to depone over againe befor the magistrats Notwithstanding of which precantione the first witness named William Rorie deponed negative uhen he was adduced before the magistrats But being immediatly interrupted by […] Howat Chamberland to The Earle who told proveist Ronald that the witnes was mistaken since he had deponed wtherwayes formerly and soe produced a double of his depositione before the minister and craved the witnesses might be allowed a while to recollect himself which being indulged The witnes returned to Court verie well instructed in his depositione As also James Dow another witness negative and so was dismissed as not probative But the Same man therefter being adduced depones in express termes Conforme to the former Notwithstanding of which irregular and wnarrantable procedure Maister Martine presents the foirsaids depositiones befor ane inqwist and obtaines James Stewart to be Served air to the defunct tho the said James had Severall tymes denyed any contigencie of blood to the defwnct before he knew of any prospect of advantage to be raised by it and all this was done efter the said Complainer John Stewart had Commenced his probatione The said James and his abbattors therby intending by a fraudulent anticipatione to deprive him of the Successione befor mentioned Secundo the said John Stewart and Mr Martine forseing that the Complainer the said John Stewart could not but prevaill in the event fall upon a project of preventing him by raiseing a most callumniows and Scandallous lybell against the complainer our saids Lords of privie Counsell wherin they are Staidged as gwiltie of noe Less then thift and robberie and that meerlie because they the saids magistrats did noe more then what is wswall and customarie in the lyke caices viz To take the depositiones of such witnesses as were offered to depone befor them without So much as Judgeing whither ther depositiones did prove or not or without so much as attesting that the said John Stewart was nearest of kin to the defwnct But allenarly narrating the mater of fact that past befor them And the said Mr […] Fullartoune asked onlie according to his informatione from his client the said John Stewart being consciows of the right of non els And the said Hercules Smith was not in the Least concerned in the foirsaid mater But only accedentallie present when the affair was Legallie gone abowt by the magistrats of Montrose and the said James Williamsone ane of the Complainers is accaused for thift and robberie for his deponing the trweth according to his conscience and which trweth is not only Sworne to by other wittnesses But is also nottar in the Countrie wherby it is obbiows how wnjustly the Saids Complainers are molested and traduced Tertio It does furder appear that the foirsaid complaint against them befor the Lords of our privie Counsell hes bein raised out of malice and designe to putt the saids Complainers to trowble and expenss by the instigatione of the said Mr Martine without any reasonable hope of furder Success In so far as ther being one Mr George Campbell incarcerat in the tollbwith of Monross he was given owt wnder the name of Martine of designe that his other creditors might not know of his being ther and therby they might be cheatted from arreasting Him the said Mar Martine requyred them to sett him at Friedome without a charge to sett at Libertie which they could nowise doe by the Lawes of this Kingdome Notiwthstanding wherof the said Mr Martine was so farr irritat at our doeing our dwetie that he expressly threatned that he Should make them reprnt it and they have now fownd the frwits therof by receaveing the foirsaid Lybell befor our Saids Lords And therfore the said James Stewart and Mr James Martine as actors airt and pairt in the abuses before mentioned ought and Should not only be pwnished in ther persones and goods for ther defamatione practiseing of wittness and intervensione of the Successione befor exprest But also ought and Should be decerned to refownd and pay to the saids Complainers ther damnadge and expenss incurred by Such a maliciows process and to find Cautione to the Complainers John Stewart that he Shall incurr no prejudice through the foirsaid pretended probatione and service in favoures of the said James Stewart which hes bein patched up in maner befor exprest to the terror of others to Commit the lyke in tyme comeing And anent the chairge given to the saids defenders to have Compeared personallie befor the saids Lords of our privie Counsell at ane certaine day now bypast to have ansuered to the grounds of the above Complaint and to have heard and sein such order and Course taken ther anent As the saids Lords Should think fitt wnder the paine of rebellion etc As in the principall lybell and Letters of Complaint with the executiones therof at more Length is contained The above Lybell at the instance of James Stewart Servitor to The Earle of Southesque with concurse of his majesties advocat Against John Fullartoune of Kineber Hercules Smith merchand in Montrose Alexander Turnbull proveist ther Alexander Turnbull and George Auchterlonie baillies ther Androw Cracktowne clerk ther John Stewart in Coltoune James Williamsone in Cottertoune and Mr Isaac Fullartoune Advocat being this day Called in presence of the Lords of his majesties privie Counsell and James Stewart the persewer Compeareing personallie with Sir David Thores Mr Thomas Skeen and Mr David Dallrimple as advocats for him and Mr James Martine partie called as defenders in the reconventione efter mentioned And the said Hercules Smith Alexander Turnbull George Auchterlonie Androw Craick John Stewart and Mr Isaac Fullartoune Six of the defenders in the principall Lybell who are also persewers in the reconventione Compeareing personallie and John Fullartoune of Kinaber Alexander Turnbull proveist and James Williamsone in Cattertoune thrie of the defenders in the principall cause who are also persewers in the reconvention being Lawfully cited oft tymes called and not compearing and Mr David Cwninghame Sir Alexander Cuming of Culter Mr David Forbes and Mr Francis Grant Compeareing as advocats for the haill defenders persewars in the reconventione And the lybell of reconventione at the instance of the defenders in the principall cause against the said James Stewart persewer therof and the said Mr James Martine being alsoe called and both pairties haveing Compeared as above marked The principall Lybell and answers therto being read in presence of the saids Lords of privie Counsell They doe heirby grant full power and Commissione to […] Earle of Strathmore Shirreff principall of the Shirreffdome of Forfar and to Mr William Gray of Innereichtie his Lordship³ depute in the said office with power to them to choise ther own clerk for whom they Shall be answerable to take and receave the oathes and depositiones of Such famous wittnesses as are cited befor the Saids Lords upon the principall Lybell raised at James Stewarts instance and also to take and receave the oathes and depositiones of Such famows wittnesses as are cited befor the saids Lords upon the lybell of reconvention raised at the instance of the defenders against the said James Stewart and Mr James Martine And Speciallie to take and receave the oathes and depositiones of such famows wittnesses as Shall be addwced befor them for cleareing who is the nearest of kin to the deceast David Stewart Late in Barbardoes and whither the said James Stewart Servitor to The Earle of Southesque or the said John Stewart in Cattowne have the nearest propinqwitie of blood to the said defunct And recomends to the said Shirreff and his depute to cause ther clerk whom they shall choise to draw up the foirsaids depositiones in write and to cause the witnesses Subsribe the Samen And also that they Subscribe the Samen themselves and therefter deliver these depositiones to Signed to the respective pairties themselvs and have assigned and heirby assignes the first Councell day of Juny next to come to both pairties for reporting the saids depositiones to the saids Lords of privie Counsell And in the meantyme Continwes the said mater untill the day foirsaid and grants dilligence for citeing of wittnesses for proveing the propinqwitie of blood to the said David Stewart