Judicial Proceeding, 10 December 1700, Edinburgh

Att Edinburgh the Eighteinth day of July J^aj vii^c years

D1700/7/4

D1700/7/4¹

Decreet

Decreet Suspensione Drumond of Megins Against Stirling of Keir

Anent the bill of suspension presented and given in to the Lords of his Majesties privy Councill at the instance of James Stirling of Keir Against Adam Drummond of Megins and John Whyt sometime in Lennoch then his tennent now in Rosyth Shewing That wher the said James Stirling of their as master and Land Lord to Patrick Mcinchoiter pretended in Ardwhilry and heritor of the saids Lands and his tutors and Curators for their intrest are Charged be vertue of Letters of horning direct furth against the petitioners at the instance of Adam Drummond of Megins and John Whyt Sometime in Lammash then his tenant now in Rosyth To make payment to them of the Soume of Eight Hundred Seventie two pounds Scots money as the value and pryce of the goods Lybelled With Eight hundred merks of Damnadge and expensses Specified and contained in ane decreet given and pronounced be the Commissioners of Justiciary of the midle district upon the Twenty sixt day of December Last by past Within a Certaine Short space who forr alleaged not obedience to Cause denounce the petitioners rebell and put him to the horn most wrongeously and unjustly Considering It is of verity That the forsaid decreet is intrinsically null In Swa farr as the Same is pronounced against the petitioner as Land Lord to the said Patrick Mcinchoiter in Ardwhillarie, Wheras he is not so much as Lybelled against nor cited Bot the Lybell Conforme to the decreet produced was only against the petitioner and Patrick Donald Mcinleyes his tennent in Ardwhillarie Bot no mentione of McinCloiter, And ther being no probatione of any Crime against the said Patrick and Donald Mcinleyes no Sentance could pass against the said James Stirling petitioner Secundo the forsaid Decreet is most Illegall and unwarrantable In so farr as the decreet bears witnesses to have been adduced and Sworne before any citation was given to the petitioner Tertio the forsaid decreet is in absence and quoad the petitioner In so farr as by the decreet ther is Compearance made for the petitioner proponeing this defence that the petitioner being out of the kingdome could not be cited be vertue of the Commissioners precept and which was Sustained And the Lybell rejected Bot the petitioner being therafter cited upon a Suppliment at the marcat Cross of Edinburgh pear and Shoar of Leith, The probatione and depositiones of the witnesses was advysed without calling or hearing the petitioners procurators and the petitioner Decerned, And Archibald Stirling of Garden the petitioners Curator haveing Compeared and reclaimed against the Sentance he was refused to be heard Wheras if any legall method hade been taken and the petitioner heard to propone his defences he would Have proponed this defence Viz That the said Mcinchoiter was neither tennant nor possessor in the Lands of Ardwhillarie nor hade Larim nor forum for two years and more before the Committing the Crymes Lybelled which the petitioner could have proven by witnesses beyond Exception, and which would have eleided the said pursuit Bot that he was Servant to George Mcphatrick alias George Drummond who was allwayes tennant to the Earle of Pearth, and that the said Gregor being ane Captaine by Commission² from the late King James and being in open hostility and rebellion against the government with his said master no Landlord can be answerable for depredationes Committed by these who were tennants and who broke out in open hostility And never returned to the ground, Bot this Mcinchoiter was neither tennent nor was ever in possession of any part of the petitioners estate therafter, Yet nevertheless etc And Therfore etc And Therfore Craveing the saids Lords would be pleased to grant Letters for calling the Chargers for productione of the Saids pretended Letters with the executiones therof Togither with the said pretended decreet wherupon the Samen proceeded To have been seen and Considered be the saids Lords and to have heard and Seen the Samen suspended as the said bill of Suspension at more Length bears Which Bill of Suspension being upon the Twentie Seventh day of February and Fourteinth day of March both Last by past read in presence of the saids Lords of his Majesties privy Councill They Granted two Severall Sists of executiones theron into two severall dyets both now bypast And in the mean time allowed the Chargers to See and answer the said bill of suspensione And the said Charger haveing Seen the said bill They returned the same And gave in answers therto Viz John Whit and the Said Adam Drumond of Megins his master obtained Decreet before the Commissioners of Justiciary of the Midle district of the Highlands against Keir and his tutors and Curators as heritors of the Lands of Ardwhollary and upon which lands and under the said Keir Patrick Mcinchoiter the robber and depredator of the said John Whites goodes Lives, for the Soume of Eight hundred seventie two pounds Scots as the value of the goods robbed and for Eight hundred merks for damnadges as the decreet more fully bears This decreet is offered to be Suspendit and to the bill of Suspension given in to the Lords of privy Councill for that effect Its answered Primo That the said bill denyes that Mcinchoiter was tennant to Keir the time of Committing the forsaid depredation etc To Which It is answered that the decreet and probatone therin³ taken is opponed wherby it is manifast that the said Mcinchoiter was tennant to the Laird of Keir the time of the robbery Lybelled and that he gott off the Stollen goods from Duncan Mcilphatrick who was the robber and resett, and made use of the Same, Whereby it is Certaine That Keir being Landlord for the time is undoubtedly Lyable, Nor is it of any moment that McChoiter is not called in the forsaid Decreet Because it is very true he was dead and hade non to represent him, Bot yet Since he was the knowen resetter it is undoubted that according to the Law of the Highlands that if the thift or resett be once proven the Land Lord is Lyable conforme to the acts of parliament Whither the resetter be dead or alyve Secundo It is alledged That the probation was taken and the witnesses examined before Keir was cited To Which it was answered That Keir at least Carden his Curator was Lawfullie cited by the Commissioners precept before any witnesses ware Sworne or examined And And⁴ it was not only upon a Suggestion afterwards that Keir himself was out of the Countrey That Letters of Suppliment were raised by delyverance of the Lords of Session to Sumond him cum processu and the day of Compearance past before any Sentance given in the Cause nor hath he any thing yet to Say more then what was alleadged by his Curator and procurator Tertio That the decreet is against Keir in absence It is answered That his Curator Compeared by his procurator as said is and whither he was present or absent its certaine; That to this day he can Object nothing against it Quarto That it is alleadged that the goods were away taken in the time of insurrectione in the Highlands in the year J^aj vi^c Eightie Nyne or J^aj vi^c Nyntie It is answered, That whither they were taken away the time of the Rable or not per inde est Since the Councill has most Justly found That the takeing away the time of the rebellion is not a just defence Bot on the Contrary Might be a Cloak for the greatest villianies And the only thing that the Complainer can alledge relevantly is that the goods were only caried away the time of the rebellion, Bot Consumed in the enimies Camp, Bot when it is Certainly knowen and proven that the goods were not so Consumed Bot were resett by the Said Mcinchoiter tennent to Keir upon his own ground, Keir was made most Justly Lyable and in effect if the pretext of every insurrection Should be Sustained to cover robers and depredationes in the Highlands their Should be no end of these villains and both Roberies and insurectiones would be therby multiplied In respect wherof the Said bill Ought to be refused as the answers bears And the said bill and answers therto being upon the fourth day of July instant Read in presence of his Majesties high Commissioner and the Lords of his Majesties privy Councill They by their Interloquitor of the said day Refused the Desire of the said bill of Suspension And allowed the former Letters raised at the Chargers Instance against the Suspender to be put to executione notwithstanding therof, And Therafter the said James Stirling of Keir and Archibald Stirline of Carden his Curator Gave in a petition to his Majesties high Commissioner and the Lords of his Majesties privy Councill Shewing That Wher the petitioner being these two years bygone out of the kingdome at his Studies and not yet returned and being cited before the Commissioners of Justiciary of the Midle district be vertue of their precept upon ane alledged depredation Committed by ane Mcinchoiter alledged tennent to the petitioner in Ardwhillarie upon the Lands pertaining to Adam Drummond of Megins, Att calleing of the forsaid ation⁵ It was proponed by Carden and the procurator, That the petitioner being out of the kingdome he could not be cited by vertue of the Commissioners precept Without a Suppliment, and which was Sustained and the petitioner appointed to be cited be vertue of a Suppliment at the Marcat Cross of Edinburgh pear and Shoar of Leith, Notwithstanding therof before any citation given to the petitioner or the dayes of the Ciation elapsed, Ther is probation adduced and advyssed, And Sentance pronounced without So much as calling parties And the petitioner decerned in the Soume of Eight Hundred Seventie two pounds, with Eight hundred merks of damnage and expensses And the petitioner being charged for payment therof The petitioner did present a bill of Suspension to the saids Lords in January last upon ther reasones that the forsaid Decreet was in absence quoad the petitioner, And that the same was unwarrantable by adduceing probatione without Citatione and advyseing the same without hearing the petitioner, Wheras if the petitioner hade been heard against the decreet, The petitioner would alleadged as now he do, That the probatione adduced does nowayes prove the said Patrick Mcinchoiter to be the petitioners tennent the time of the depredation, Bot the petitioner would have proven, And does now offer to prove by witnesses beyond exception, That he hade not been Tennant to the petitioner for near a year preceeding Bot ane Outlaw, and in hostility against the government under the Command of Gregor Mcgregor who was never the petitioners tenant Sicundo the petitioner was most unjustly charged as Land Lord to Patrick Mcinchoiter In respect the Lybell is only against the petitioner as Land Lord to Donald and Patrick Mcinlayes the petitioners tennants in Ardwhillarie, And there is no probation against them and Mcinchoiter is not so much as Lybelled against Conforme to the decreet produced so that the decreet is Contrary to the very Lybell So That it is hard that the petitioner Should be Decerned for debts Committed by rebells In whom the petitioner hade no intrest Neither before or after the depredation, This bill of suspension in January being ordained to See and answer, and so answers being given in for six moneths bygone, Bot the petitioners procurators allwayes expected to be heard, was Surprized That without any intimation to the petitioners procurators upon answers given in to the saids Lords the fourth instant by Megins after so long delay and the petitioners and his procurators in Security, The bill is refused and the Letters found orderly proceeded, and which is not usuall by the saids Lords And Therfore Humbly Craveing the saids Lords would be pleased To take the for saids reasones of Suspension to their Consideration, and allow the petitioners procurators to be heard upon the forsaids grounds and severall other unanswerable grounds Which Should be verified to the saids Lords And in the mean time to stope the decreet Which Bill or petition being upon the nynth day of July instant Read in presence of his Majesties high Commissioner and the Lords of privy Councill They by ther delyverance theron of the date the Nynth of July instant Stopped the interloquitor mentioned in the said petition of the date the fourth of July instant and discharged the extracting therof, And Declared that they would hear both parties Lawiers in their presence debate upon the reasones of suspension, And accordingly both parties Lawiers being this day called in presence of his Majesties high Commissioner and the saids Lords of privy Councill And Mr David Cuninghame and Mr Thomas Skeen Compearing as advocats for the said James Stirling of Keir and Archibald Stirling of Carden his Curator, and Sir James Stewart his majesties advocat and Mr David Dalrymple Compearing as advocats for the saids Adam Drummond of Megins and John Whyt chargers His Majesties high Commissioner and Lords of his Majesties privy Councill Haveing Considered the said bill of suspension and reasones of the said bill and answers forsaid made therto for the saids Chargers, And grounds of the charge, or decreet charged on with the haill wrytes produced for aither partie, and haveing at full Lengths heard both parties procurators debate as the Councill barr, and Considered the petition given in for the said James Stirling of Keir and Stirling of Carden his Curator His Grace and their Lordships Have Refused and hereby Refuses the said bill and reasones of Suspension, and notwithstanding of the same and of the other petition given in for Stirling of Keir and his said Curator Finds the former Letters at the instance of the said Adam Drummond of Megins and John Whyte late his tennent now in Rosyth chargers Orderly proceeded And Ordaines them to be put to farder executione against the Said James Stirling of Keir and his said Curator after the forme and tenor therof in all points.