Decreet, 29 December 1698, Edinburgh

Att Edinburgh The Fifteinth day of December J^aj vi^c Nyntie Eight years

D1698/12/7

D1698/12/7¹

Decreet

Decreet Earl of Roxburgh against Mr Mark Kerr

Anent the Letters or lybell of Complaint purchased and raised before the Lords of his Majesties privy Councill at the instance of John Earle of Roxburgh and his Curators for their intrest viz Margaret Countes of Roxburgh John Marques of Tweddale John Lord Ballantyne Sir William Kerr of Greenhead Sir James Hay of Linphum, Thomas Mcdougall of McKerstoune for the said Earle of Roxburgh his intrest and alse for the intrest of John Davidson, Thomas Mabirne John Aitkine Thomas Kennedy elder George Hay William Turner elder Walter and William Taits James Wallace James Heline Androw Richardson Thomas Chisholm Alexander Wright elder James Remsteill Androw Greirson William Thorrbrand George Hay and Androw Mark George Haithie William Holme elder the said John Earle of Roxburgh his tenents in the toune of Midline and alse at the instance of the saids tennents for their oun intrest with Concourse of Sir James Stewart of Goodtrees his majesties advocat for his highnes intrest in the matter underwrittin Making Mention, That Forasmuchas the Crimes of falshood and makeing useing fenzieing of all maner of evidents acts obligationes accquittances and other wrytes what so ever is declared by the law to be a Cryme of a high Nature and that all persones guilty thereof are Ordained by the twentie second act fifth parliament of Queen Mary […] to be punished in their persones and goods with all rigour Viz proscription banishing and dismembering of hands or tongue and other payments provyded by the disposition of the Comon Law both Common Civill and Statuts of this realme Likeas by the twenty second act of the twentie thrid parliament of King James the Sixth It is Statute that whoever maketh use of a false wryte or is accessorie to the makeing therof shall be punished with the paynes due to the Committers of the false hood and that it shall not be Lawfull for the Counterfitter falsiefier or accessorie whatsoever to declare that he past from the wryte quarelled of falsehood especially when the said cryme of falsehood is agravated by Imposeing upon the publict Justice of this his majesties kingdome of Scotland and the authoritie and honor of the Lords of privy Councill and especially wher the falsifier and user of the false wrytes hath the presumption and confidence to make a trade of a Committing and practiseing other acts of violence and oppression in manifast Contempt of the Lawes and acts of parliament by Cutting and destroying of green wood and growing trees is declared by the Comon law and acts of parliament to be a Crime highly punishable as tending to the violatione of all acts and Lawes made for the increase of planting and pollicie and particularly by the Eightie Second act of the Eleventh parliament of King James the sixth, By which it is Declared that willfull destroyers and Cutters of young trees shall be punished unto death therfore at theeves especially wher the said Cryme is Joyned with manifast oppressione in a Continuall practise of Cutting the Samen within hamed ground and inclossers and Contrair to the trust reposed in the practiser therof who was expressly oblidged to the Contrairy as also the violent possession of other mens Lands is declared by the Lawes and acts of parliament to be a Cryme highly punishable as being of a Dangerous Nature tending to the violatione of the peace and tranquality of his Majesties ancient kingdome of Scotland by raiseing of Tumults and Convocations for preventing wherof ther have been many Lawes and acts of parliament made anent the peaceable removeing of tenents and declareing that such tennents and Declareing that such tennents as should not remove peacably after a legall order of warning Shall be repute as oppressors and violent possessors as is a ppointed by the threttie act of the sixth parliament of Queen Mary and by the Seventie Eight act of the Fourtein parliament of King James the Second, These that occupie Lords Lands against their wills the ground should be divided both of them and their goods and they should be Charged in his majesties name to make no more disturbance to the Lord or his ground in time comeing and if they doe in the Contrair their persones should be arreisted and sent to his Majesties ward, Which violent possession is especially agravated when the Same is Contained by tennents against their masters being Noblemen minors and out of this his Majesties kingdome by threatening their servants and others who were to take possession of the saids Lands with Guns Swords and other invasive weapons to the hazard and danger of their Lives Notwithstanding wherof it is of verity That Mr Mark Kerr tenent in Holyden being of a most Covetous and Turbulent temper makeing use of all Occasions that might Serve his unlawfull designes finding that in the year J^aj vi^c Nyntie and one years Ther was a division made of the Commuintie of Selkrig wherin ther was a Considerable share sett off for the said Earle of Roxburgh and his vassells and tennents in the Contiguous Lands of Midlem and Bowdom to be Subdivided. Amongst them with Consent of the said Earle of Roxburgh their Superior and master at his Lordships conveniencie The said Mr Mack to make profit of the said Common grounds did purchase some small share in the town of Midlem, and upon that pretext invaded the undivided Commuintie as if it hade been his own propertie Wherby he gave such disturbance to the Nighbour heritors that after severall ryetous tumults Wherby some of them were hurt to the Loss of their life Robert Eliot of Midlem milne one of these Nighbouring heritors was forced for his own securitie, and the securitie of his tennents to raise a Laborrowes before the Lords of his majesties privy Councill against the said defenders at which time the said defender for satisfieing their Lordships acts and Ordinance Ordaineing the said defender to find Caution in the saids Labborowes He then produced to the Clerks of Councill a false feinzied and Counterfit bond of Cautionrie in the name of the said John Davidson James Mabine John Aitken Thomas Kennedy elder George Hay William Turner elder Walter and William Taits James Vallance James Heline Androw Richardsone Thomas Chisholme, Alexander Wright elder James Ramcastle, Androw Greirson William Thorbrand elder George Hay Androw Mark George Heastie and William Heline elder bearing that they hade enacted themselves in the books of privy Councill and were bound Conjunctllie and severallie that the said Robert Eliot and his tennents Should be free of any Skath from the said Mr Mack and his tennents, And which bond being Suspected as to the Subscriptions of the saids parties being visible by occular inspection all to be wryten with the same hand, and with the same pen and ink, The said defender to procure the samen to be received did attest on the back therof the bond to be of a true date and subscrybed by the haill persones therin mentioned Which attestation bears that its wryten and Subscrybed by the said Mr Mack his oun hand the Eleventh day of March J^aj vi^c Nyntie and one years Likeas the said defender not being then brought to a due tryall for this gross and highneous Cryme of false hood and being therby encouradged to Continue in his Covetous and turbulent designes elicit from the late Robert Earle of Roxburgh a Tack of the Lands of Holyden for the space of Nyntein years, with the provision that the Earle and his Successors Should be free of the said tack upon premonitione to be made to the said defender fourtie dayes before expyreing the first four years the begining wherof was declared to be at Whitsunday J^aj vi^c Nyntie four, and he oblidged himself to remove at that time, Wherupon the said Earle and his Curaotrs, Haveing received information of the said Mr Mack his sadd practises and of his guilt of the forsaid crymes of Forgerie which hath been since his Committing therof discovered by the declarationes of the severall persones concerned and attested by Nottars that they could neither read nor wryt Which was notourly knowen to all the Countrey about as also of his guilt of distroying and cutting of the said Earle his growing trees within his park yeards and other inclosures at Holydean Contrair to the defenders express trust and oblidgment for preserveing and hayneing of the same They did premonish the said defender by a precept of warning duely execute against him upon the Second and thrid dayes of Aprile J^aj vi^c nyntie Eight years To remove from the saids Lords of Holydean Notwithstanding wherof and that he was requyred by forme of instrument to remove after elapseing of the said terme and which instrument bears That the said defenders had Violate the Conditions of his tack by Suffering the housses and park-dykes to goe to ruine and decay, and by destroyng and Cutting of the woods and spoilling of the Gordens Yet the said defender in manifast contempt of his majesties Lawes and dishonor and prejudice of the said pursuers; Continuers upon frivilous Quirks and pretences masterfully and wilfully in the violent possession of the said Earle his Lands and Therfore he ought to be punished as a falsiefier forger and feinzier of Corupt evidents, and as a distroyer and Cutter of green wood and growing trees and as ane oppressor and violent possessor of his Masters ground Contrair to all forme of Law, And that with the highest rigour Conforme to the Lawes and acts of parliament made theranent, and farder He ought to be decerned to remove from the saids Lands and Leave the ground therof void and red for the said Earle of Roxburgh and his tennents to enter therto at their pleasure, And he ought to be decerned in the Soume of Ten Thousand pounds Scots money of Loss and damnadge and his persone ought to be put in ward untill he find Caution to doe the Same peaceably and pay the Said Soume and he otherwayes punished in his persone and goods as the saids Lords of privy Councill Shall think fitting to the teror of others to Committ and doe the Like in time Comeing And Anent the Charge given to the said haill fornamed persons defenders To have Compeared personally before the saids Lords of his majesties privy Councill at ane Certaine day now bygone, To have answered to the grounds of the above Complaint and to have heard and seen such order and Course taken theranent as appertains as in the principall lybell or Letters of Complaint raised in the said matter at more Length is Contained The said Lybell or Letters of Complaint being upon the Sixth day of December instant Called in presence of the saids Lords of his Majesties privy Councill And the said John Earle of Roxburgh and the said William Turner William Taitt and Androw Greirsone thrie of the saids Earles tennents pursuers Compearing personally with Mr David Dalrymple and Mr Robert Bennet advocats for the haill pursuers, and the said Mr Mark Kerr defender Compearing also personally with Sir Alexander Home and Mr Thomas Skeen his advocats, The lybell and answers therto being read and both parties procurators fully heard, The saids Lords of privy Councill admitted the lybell to probatione and the haill witnesses except thrie as marked in the roll haveing made faith at the Councill barr, The Councill Nominated and appointed a Committie of their own number to examine the saids witnesses And Recommended to the Committie to endeavor to Setle and agree the parties And the Said Committie Haveing accordingly mett and Called for and Spoke with the said Earle and the said Mr Mark, They returned their report in the said matter to the Councill Which report is not only Subscrybed by the Lord president of the said Committie Bot Likewayes by the said Earle of Roxburgh and Mr Mark Kerr as parties, Whilk Report being this day read in presence of the saids Lords of his Majesties privy Councill And they haveing at Length Seen and Considered the Same They have approven and hereby Approves therof and particularly approves of the said Mr Mark Kerr his haveing Condescended to pass from the tack Lybelled and of his giveing up the Same to the Said Earle before the said Committie as the report bears And Decernes and Ordaines the said Mr Mark Kerr to put the dykes in alse good Condition as when he entered, The Said Earle of Roxburgh performeing to him the termes of ane act of sederunt of the Earles Currators made at Kelso the […] day of […] Wherby the Earle is oblidged to give Mr Mark some bolls of victuall for keeping up the dykes, And Decernes and Ordaines the said Mr Mark Kerr to leave the ground void and redd to the said Earle of Roxburgh at Whitsunday nixt to come So that the Earle or any in his name may enter therto And the saids Lords Declares the said Mr Mark is to Sow the ground and have the Cropt alongst with him for which he is to pay the Earle the years rent And in respect the Earle by the report has Discharged and past from the Councill proces abovewryten against the said Master Mark Therfore the saids Lords have assoylzied and hereby Assoylzies the said Mr Mark from the forsaid lybell or Letters of Complaint raised at the instance of the said Earle against him And Declares him quitt therof and free therfrae in all time comeing, And the saids Lords of his Majesties privy Councill Have Declared and hereby Declairs That the said Mr Mark Kerr is to plow no more then what he plowed Last year except the foldings extending to about five or six bolls sowing, And Ordains Letters of horning on fiftein dayes and other executorialls needfull under the Signet of Councill to be direct hereon in forme as effeirs.