Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the Eightein day of Febrwary J^aj vi^c nyntie Six yeirs

D1696/2/29

D1696/2/29¹

Decreet

Decreit Adam Against Halyburton

Anent The lybell or Letters of complaint raised and perswed befor The Lords of his majesties privie Counsell at the instance of William Adam in Wastermylne with concurse of Sir James Stewart his majesties Advocat for his highnes interest in the mater wnderwritten Mentioning That wher albeit by the Lawes and constitutiones of this and all other well governed nationes the disturbeing and qwieteing of people in the peaceable possession of ther Lands tacks and possessiones And contriveing Sinistrows and indirect ways and meanes against tacksemen Soe as to putt them owt of caise to pay ther maisters tack dwety And particularly the diverting and abstracting of cornes to mylnes to which they are thirled the multure of which is the only mean wherby the tacks men of the mylne can satisfie his tack dwety And wnjust imprisoneing of mens persones without any Legall grownd or warrand or upon old captiones efter the debt contained therin is Satisfied and discharged So that it became no Captione And the causeing execute Letters against any persone And poinding not only of ther cornes both in barne and barne yeard But also ther haill insaght and house hold plainshing efter that the warrand wherupon the poinding proceeded was Suspended atleist ane bill of Suspensione past therof and Dwely intimat to the pairtie at whose instance the poinding was raised Be all crymes of ane high nature and Severely pwnishable Yet trwe it is and of veritie That John Baillie of Welstowne haveing sett ane assedatione and tack to the Complainer of the mylner of Welstoune and mylne Lands therof from Whittsonday J^aj vi^c and nyntie four to whittsonday J^aj vi^c nyntie five yeirs payable at Candlemise and Lambes Mr Thomas Halyburtowne Chamberland to the said Laird of Welstowne Did in the moneth of February Last bypast charge the Complainer to make payment of the half yeirs tack dwety payable at Candlemise and raised ane captione theron the third day of Aprile Last And the complainer haveing made payment of that termes tack duety to the said Mr Thomas Halyburtoune as his discharge of the fiftein of May Last beares And as to the whitsondayes termes rent notwithstanding that the haill tenents of the barrone were astructed to the mylne of Walstone and obleidged to pay the fourth pairts for each boll of multure which was the Subject mater that payed the tack duety yet pairtly by the instigatione of the said Mr Thomas Halyburtowne a great many of the tennents haveing abstracted ther cornes from the mylne by the said Mr Thomas his seaseing upon the cornes of other tennents and putting them in his maisters Stack yeard which are ther Still and never came to the mylne And pairtly by the Said Mr Thomas his 1o being a considerable pairt of the barrony waist by his rigid courses and manadgement The complainer was frustrat of the whole Suchen of the mylne And the complainer haveing for his redress conveened a great many of the abstracters of ther cornes befor the said Mr Thomas in his barrone court and gott decreit against them befor him as barrone beaillie he most wnjustly discharged the clerk to give the complainer ane extract of his decreit And therefter he of now conveened all these persones for ther abstracted multures and Likewayes the Said Mr Thomas himself for the tenents cornes intrometted with by him And for the waist grownd which he had Sett furth in grass and possessed himself befor the Commissioners of Lanerk for payment makeing to him of the Samen And the said Mr Thomas finding that the complainer could not only compense him of that terms rent but make him considerablie the complainers debitor He not only did most wnjustly advocat the said actione and frustrat him of his payment But also at the Same tyme to make the said complainer incapable to prosecute the said affair when the complainer came to the court at Lanerk the said Mr Thomas did upon the old caption raised on the third of Aprile for the Candlemise rent wherof he had the said Mr Thomas his discharge in maner foirsaid cawse apprehend the said complainer and imprison him in the tollbwith of Lanerk And detained him prisoner therin upon the Captione which was payed untill that efter he was challenged he did charge of new againe for the next termes rent and tooke out ane new Captione And arreasted the complainer And therefter he haveing gott at Libertie furth of the said tollbwith by a deserters breakeing a holl in the wall And the complainer haveing come to Edinburgh and obtained ane bill of Suspensione upon the tuenty day of November Last bypast which he did intimat to the said Mr Thomas upon Saturnday being the twentie third of the said moneth as instruments taken therupon does testifie And yet notwithstanding therof the said Mr Thomas Halyburtoune in high contempt of his majesties authoritie and authoritie of The Lords of Sessione most illegallie and wnwarrantablie came upon the twentie fifth or twentie Sixth of the said moneth with Severall armed men and others of his Complices And masterfullie and violently take and cary away not onlie the Complainers haill cornes in his barne and barne yeard and other goods belonging to him But also the insight and plainshing of his house wherby he and his wife and many Small childreine are Stript and destitut of all maner of Subsistance haveing nothing at all left to them but to Depend upon the charitie of good people By all which it may evidently appear to the saids Lords of privie Counsell That the said Mr Thomas Halyburtowne is gwiltie of ane high and manifest ryot injurie and oppressione And therfor he ought not only to be ordained to restore and deliver back to the complainer the cornes and plainshing with the Sheep nolt that were Soe wnwarrantablie taken away by him in als good caise and conditione as they were the tyme of the wnlaufull away takeing or to make payment to the Complainer of the Soume of Five Hundereth merks as the prices and valwe therof Conforme to ane particular inventar therof which is produced with this lybell as ane pairt therof brevitatis causa And of the Soume of Ane Hundereth pwnds of Damnadges Sustained by the complainer through the wrongous imprisoned upon ane Captione which was payed in maner foirsaid And the said illegall wnwarrantable ryot But alse ought and Should be fyned and pwnished in his persone and goods to the terror of others to comitt the lyke in tyme comeing And anent the charge given to the said defender given to the said defender to have compeared personally befor the saids Lords of privie Counsell and to have ansuered to the foirsaid complaint and to have heard and Sein Such order and course taken theranent as the Saids Lords Should think fitt under the paine of rebellione and putting of him to the horne etc As in The principall Letters and executiones therof more fullie bears Which Lybell or Letters of complaint haveing bein upon the threttie one of december Last bypast called in presence of The Lords of privie Counsell And the persewar Compeareing personallie with Mr John Meinzes Mr William Hog and Mr Mathew Mckee his Advocats and the said Mr Thomas Halyburtowne Defender Compeareing also personallie with Sir James Ogilvie his Majesties Solicitor his Advocat Thae Lybell and ansuers made therto for the defender being red and both pairties Advocats fullie heard The Councell admitted the lybell to probatione And the wittnesses compeareing haveing made faith The Councell appointed a comittie of ther oun number to examine the wittnesses Reserveing all objectiones that may be made against them to be Discust befor the Comittie And Some of the witnesses failled to compear and Severall of them which compeared haveing withdrawen befor they had deponed The Counsell by ther interloquitor of the Sevinth of Janwary Last granted furder dilligence by Captione against these wittnesses And the Comittie haveing called for and examined the saids wittnesses They deponed as ther oathes and depositiones extant in proces bears And upon the thretteinth of February instant The Councell being abowt to advise the probatione of this process they caused call the said Mr Thomas Halyburtowne Defender who being called faillzed to compear And therfor the Counsell Delayed the adviseing of the process till this day And ordained the Same to be intimat to the Defenders agent to the effect he might have advertised his client to be present this day with certificatione if he compeared not The Counsell would advise the process without him Which intimatione being made And the Said Mr Thomas haveing faillied to Compeare The Saids Lords of his majesties privie Counsell haveing this day Considered the depositiones of the wittnesses with the haill probatione adduced for the perswer in the above process They find the ryot Lybelled Sufficiently proven And modifies the Soume of Six Hundereth and fiftie merks Scotts in place of the haill Damnadge and prejudice done to the persewar and of the haill charges and expensses that the hes bein putt to in the mater lybelled And Decernes and ordaines the Said Mr Thomas Halyburtoune defender to make payment to the said William Adam persewer of the said Soume of Six Hundereth and fiftie merks And doe heirby give order and warrant to the macers of privie Counsell or messengers at armes to pass Seek Search take and apprehend the persone of the said Mr Thomas Halyburtowne and comitt him to prisone untill he make payment of the foirsaid Soume.