Judicial Proceeding, 10 December 1700, Edinburgh

Att Edinburgh The Second day of August One Thousand Seven Hundred years

D1700/8/3

D1700/8/3¹

Decreet

Decreet Suspender Strachan of Glenkindie against Gordon of Campdell

Anent the bill of suspension presented and given in to the Lords of his Majesties privy Councill by Alexander Gordon of Campdell Against Alexander Strachan of Glenkindie and John Smith procurator Fiscall to the Commissioners of Justiciary for the Highlands Making Mention That wher Alexander Strachan of Glenkindie and John Smith procurator Fiscall to the Commissioners of Justiciary for the Highlands have Caused Urge the said Alexander Gordon to make payment to the said Alexander Strachan for himself of the Soumes of money and pryces of the goods and geir and others alleadged robbed and Stollen from the Charges by John Mckean vic Gillenders and others extending to the Soume of Thrie Thousand Nyne hundreth ane Eightein pounds Scots as also to pay and delyver² to him for himself as said is The Soume of Ane Thousand fyve hundred pounds of Tascall And the Soume of ane thousand Thrie hundreth pounds of expences Conforme to the charger his alleadged oath in Litem And Likewayes to make payment to the charger As alleadged assigney constitute be Alexander Leith of Belchirie Conforme to his assignatione dated the twentie fifth day of March J^aj vi^c nynty […] years of the soume of Twentie pounds as the price of ane Ox and Eight pounds as the price of ane Con alleadged wanting be the said Alexander Leith and of the Soume of six hundred merks of expensses wherupon its alleadged the said Alexander Leith hath deponed he was, at in recovering back his goods Extending in the haill the soumes Charged for to the soume of seven Thousand one hundreth fourtie six pounds money forsaid And in Like maner to make payment to John Smith procurator Fiscall of the Soume of Seven hundreth and fourtein pounds twelue Shilling As the tenth part of the said accumulat Soume alleadged due to the Commissioners of Justiciary for the Northern districts Commissioners of Justiciary for the Northern districts Conforme to ane pretended Decreet alleadged obtained at the instance of the said Chargers against the said Alexander Gordon petitioner and the said John Mcean vic Gillenders and others before the saids Commissioners upon the […] day of […] years Within ane Certaine Short Space nixt after the Charge under the paine of Rebellion and puting of the petitioner to the horne intending for the petitioners alleadged disobedience to Cause denounce the petitioner rebell and put the petitioner therto most wrongeously and unjustly Considering It is of verity That the decreet Charged on is absurdly informall and Irrelevant and wanting probation In so farr as the saids Commissioners Repelled all the petitioners most Just and Relevant defences which were proponed for the petitioner And are now here offered to the saids Lords by way of Suspensione And they are these Primo, Albeit all the Lawes and acts of parliament that was Lybelled upon in the said Decreet were clearly and plainly alternative, and did only oblidged the Highland heritors either to present their men to Justice Or otherwayes to pay the damnadges, yet the pursuer in his proces did not Lybell in the termes of these acts, Bot Concluded that the petitioner might pay the damnadges Because the pretended robbers Lybelled were alledged to have been the petitioners tennents without So much as noticeing the alternative of presenting and albeit the petitioner peremptorly demped That these robbers were men tennents or servants to the petitioner the Committing of the said Robbery, and tho they hade been as they were not, The lybell was not relevant to make the petitioner Lyable for the damnages And its weell knowen that all the decreets pronounced by that Commission decerning Damnadges when the theives were presented to Justice are and have been reduced and overturned by the Saids Lords in every case wher applicatione hade been made and if it were Otherwayes as upon the one hand ane enemie Subborning a fellow to Rifle a Chartor Chist or break a banbeirs Shop may ruin the best estate in Scotland if his master should be both Lyable to present him and pay the damnadges, So upon the other hand however privat repairatione were obtained, yet publict Justice Should never be vindicat For if ane heritor behooved both to present both his man and pay the Skaith he would never present him, Bot raither keep him to help to repair the damnadges Secundo the Said Decreet was most unjustly obtained against the petitioner, and altogither inconsistant with Law or reasone, In swae farr as there is no more in the whole Lybell upon which it proceeds that touches the petitioner Bot the followeing words that the petitioner as heritor or wodsetter of the Lands wherupon John Mcgill Vic Gillenders John and Gregor Mcphersones did Live the time of the Committing of the robbery ought and should be Decerned in the damnage which was not at all relevant, Unless they hade Lybelled that they were then or at least were the petitioners men tennents or Lived in the ground the time of the Citatione in the proces For its ane incontraverted maxim that nox Caput Sequitur And Consequently ane heritor cannot be Lyable for these who are not Living on his ground the time of the Citation Especially Considering the reasone of the Law Viz The master is punishable in damnadges Because he does not as he is presumed to be able to produce his men which ceases in the petitioners case, For it is not in ane old masters Legall power to produce those that are not under him Et Impossibilium Nulla est obligatio, And the petitioners case was yet more favorable In Respect the petitioner offered instantly to prove by vertue of ane exculpation Which the petitioner raised and execute for that effect that the men for whom the petitioner was pursued removed from the petitioners Land at a legall terme Viz the terme of Whitsunday Last, Long before the intenting of the cause and before the petitioner or they were any maner of way interpelled or the petitioners put in Mala fide to Lett them goe Likeas It was instantly verified by Greirsone of Bellators bond and List of men given in by him then lying in the Clerk of the proces his hands, That the said John Mc vicgillenders Lived with and wer Secured for by him, And it were a Strange and unheard of kynd of preprative to oblidge heritors for their men after they are bona fide and at Legall termes removed from their hand For by the same rule and parity of reasone that the petitioner or any other heritor is lyable for a tennant who removed as said is at Whitsunday Last, He is lyable altho the removeall hade been twenty or threttie years before if within the years of prescriptione So that ane heritor most either never Suffer a tennent to remove Least he by charged for him after he is gone³, Or otherwayes they Shall be much more exposed then they have been hitherto by any Law or practise in this kingdome after the Legall removing, This is also most clear and evident from positive Law For by the second act parliament 1st King James 5th The heritor is oblidged for the theif in whose Service he is when he is attacked to the Laws Item 94 act parliament 11th King James 6th Expressly bears That the master oblidged to present the theives to Justice or pay the damnadges Is he upon whose bounds or Jurisdiction they dwall the time of the Warning, and the 108 act parliament 11th King James 6th appointing the heritors releif fully clears that the present Master (and not the old master from whom they removed bonae fidei) must present or pay the Skaith And this is not only Law Bot has Likewayes been deryded both in the late rignes and this For in Anno 1688 Margret Mcintosh Lyfrentrix at Lurg haveing pursued a reductione before the Lords of Session of a decreit of the Commissioners of Justiciary Cheifly on this ground that they had found her lyable tho the man was removed from her before Citation, The Lords after a hearing in presence Sustained the reasones of reductione (amongst which this was the Chief as said is) And the decreet extracted therupon was therwith produced As also the Same As also the Same Commissioners that have altered their note against the petitioner did upon The Eight of August Last find the Lybell at the instance of the Tennants of Newtoune against the heritors of Strathdown not relevant In Respect the heritors are only lyable to present persones who are upon their ground the time of the Citation, The Extract of which interloquitor was Likewayes therwith produced, and by the interloquitor upon the Relevancie in the same proces Knockespack Younger was assoylzied from the damnages In Respect the man was presented, And yet the same was found relevant against the petitioner who was neither Lyable, able, nor charged to present, and they haveing removed from the petitioner at a legall terme before Citation as Secured for as said is, Tertio the methode and forme of proces caried on against the petitioner in this matter As it was malicious, so it was most Illegall and informall In so farr as primo The persones for whom the petitioner was cited were only cited at the Marcat Cross of Huntly and Bamff Wheras the warrands given to the Fiscalls Contained no warrand for that, Bot on the Contrary only to cite them personally or at their dwalling places, yea one of them neither lived in the Regallity of Huntly nor Shyre of Bamff As was instantly instructed by a bond of Cautionry granted by this present master for him within the Shyre of Aberdeen wher he was not cited Neither can it be pretended that ther was not tutus accessius For first that is utterly Calumnious they Liveing peaceably in the Countrey under peacable Masters Secondly the Judging of what is not tutus accessus is not to be left to ane officier, That Sumar Cognition therof Ought to be taken by the Judge, And he therupon grant a speciall Warrand to cite thus a particullar partie Wheras here ther was only a generall Warrant for citeing such at marcat Crosses to whom ther was not tutus accessus Bot this was repelled, tho it be Certaine that the petitioner being Conveened ad Civilam effectum and accessarie hade intrest to propone all that was Competent for the pannells Seing Otherwayes without their being cited they could not be Lyable in the petitioners releife Secundo the petitioner was formerly Conveened in a former Court and Because ther was not probatione against the petitioner after Severall witnesses hade been examined the dyet was deserted, Which was altogither a nomolus and Irregullar, For the petitioner haveing been Conveened and the process came the lenth of a probatione, and the Same falling the petitioner ought to have been assoylzied Seing after a proces is come that Lenth (much more if it participat partly of a Criminall matter) the petitioner hade Jus quisitum in it, And ane Master of it as weell as the pursuer And Lis alibi prudens Is a good defence in any Subsequall persuite Tertio One of the Commissioners of the said Court of Justiciary upon the fourtein day of November last gives warrand to cite the Laird of Weymes his tennants who were proven and found guilty by Sentance of the Same Commission for the Same self Robery and hade been denunced as fugitives therfore (upon a bargaine betwixt the Charger and the tutor of Weymes in behalf of the saids Robert That the saids principall robbers might prove the Lybell against the petitioners pretended tennants and him) and ther was only ane indemnity and relaxatione procured parte in audita for indemnifieing and relaxing the saids robbers by the said Glenkindie charger from the saids Lords the Twentie Eight of that moneth Likeas ther was other warrands granted for citeing other witnesses, and all before the raiseing of the principall Lybell which is only dated the fourtein day of December Last by past as the extract of the proces bearing the saids pretended warrants and principall Lybell And ane Coppie of the said act of indemnity therwith produced would testifie, so that as these Warrants doe instruct ane evident designe against the petitioner and particularly that before the indemnity to cite persones found guilty rebells and Traytors As it was filius ante patrem so it was most Illegall and unwarrantable Quarto for clearing the iniquity of the Second point Viz That the decreet was without probation, and that the objectiones against the witnesses were good It is to be Considered That the Case is not wher the kings advocat (who is presumed Impartiall to both sides as being a publict persone) getts a remission to some of the Criminalls For here Glenkindie is a privat partie obtaines it And that expressly in order to the makeing them witnesses neither is the case that the saids Lords had determined this by granting the petition For first that was parte in andula and periculo petentis Secondly It was upon a gross Misrepresentation per obreptionem dicto mandacio In so farr as the petition bears These denunced to have been only accessories and to be adduced against the principall actors Wheras in the Decreet against the tutor and them they are expressly, proven to be the principalls themselves hence they must be rejected by all the Law in the world, For in the first place if two or thrie dollars gott in order to depone would sett a witnes how much more ought ane indemnity, Which Secures not only his goods and Libertie, Bot Likwayes (in effect Considering Circumstanies⁴) his life He and his master by paction are to be freed of the Civill effect of the decreet to the boot, Secondly they were plainly to be tyners or Winers in the Cause In Respect that by the Capitulation if they deponed right their master (from whom they hade no standing tacks and Consequently could not be witnesses wher he was concerned) And Likewayes themselves were to be free of the decreet obtained against them, Wheras if they deponed not so they were to remaine bound therby Thirdly however persones denunced may be relaxed against whom nothing is proven, yet wher ther is such a Clear probation in the decreet against them, they become infameous Infamia juris So as they can never merit any Credit for throwing the burden on others to the exemption of them selves, Notwithstanding of any relaxation or indemnity Especially Considering that at the best, they are of most Suspect faith being Comon an Nottorious⁵ robbers and vagabonds And if such should be Sustained to bring upon a Countrey Gentlman such vast Sommes they might a pari be admitted in the case of Life and by Consequence ther is no Scotsman Secure either of life or fortune It is to be Noticed That the verity of the bargaine made betwixt the tutor of Weymes and Glenkindie or his doer was offered to be proven by Glenkindies oun oath, Wherby it was manifast, That ther was never any deserved more properly the name of Glenkindies witnesses Quinto The Commissioners ware so Frank in this matter, That without being asked They allow Glenkindie and his cedent Bellchirie their Juramentum in Litem, Tho it be a principall in all Judicatures That Judex numquam imperiter officum Noster rogatus, Tho indeed it be true That^{6 7} the Judges were not more willing then the party was ready for these oathes in Litem are instantly cancelled by wryte, In so farr as Glenkindie in a Letter therwith produced directed to the Baillie of the Regality of Marr acknowledge his damnadge to extend only in all to the value of Thrie thousand merks and yet his and Ballchiries his Constituents their oathes bears them to Surmount seven Thousand pounds, And Wheras the Somme Decerned for the goods alledged taken away from Ballchirie was only twenty Eight pounds yet the petitioner was decerned in six hundred merks of expenses to him, Which with many other Circumstances in this affair was ane evidence that ther was not only redress Bot likewayes profitt projected by the matter in hand And therfore the forsaid pretended decreet Letters and Charges raised theron Ought to be suspended and that without either Caution or Consignatione In respect the forsaid Decreet farr exceeds the petitioners whole fortune and estate And Therfore Humbly Craveing the Saids Lords would grant Letters for Sumonding the said Chargers To Compear before the saids Lords at ane Certain day Bringand with them the forsaid pretended decreet Letters and Charges raised theron 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 last by past Read in presence of the saids Lords of his Majesties privy Councill They by their delyverance wryten therupon of the said day Sisted all execution upon the said bill of Suspension at the instance of the said Alexander Strachan of Glenkindie and the said John Smith untill a Certaine day now bygone And in the mean time allowed the Charger to see and answer the same, and therafter the said Alexander Strachan of Glenkindie haveing given in a petition to the saids Lords of his Majesties privy Councill Which petition with the said Suspension being upon the Twenty Nynth of February last by past Read in presence of the saids Lords of his Majesties privy Councill They againe Sisted executione upon the decreets Charged on untill ane Certain day now bygone inclussive And in the meantime allowed the Charger to see and answer the said Bill and granted Warrand to the Clerk of the Commissioners of Justiciary in the Highlands who pronunced the saids Decreets Charges on to transmitt the ground and warrands of the samen decreets to the Clerks of his Majesties privy Councill To the effect that their Lordships might Consider the same And appointed the saids grounds and warrands to be transmitted betwixt and ane Certaine day now bygone, after pronounceing of this interloquitor the said bill of Suspensione at the instance of the said Alexander Gordon of Campdell against the said Alexander Strachan of Glenkindie Charger with the answers made therto being upon the Nynth day of July last by past read in presence of his Majesties high Commissioner And the saids Lords of his Majesties privy Councill And both parties Suspendars and Chargers being called In presence of his Majesties Commissioner and privy Councill And the said Gordon of Campdell One of the Suspenders Compearing personally with Mr David Cuninghame and Mr Francis Grant, Mr John Murray and Mr John Mckenzie advocats for the saids haill suspenders And the said Alexander Strachan of Glenknidie Charger Compearing also personally With Sir James Stewart his Majesties advocat Sir Walter Setton Mr David Dalrymple Mr Robert Forbes and Mr William Carmicheall his advocats Both parties and their Lawiers being fully heard debate in this matter, And his Majesties Commissioner and the Lords of privy Councill haveing Considered the whole debate with the decreets Charges on, And haill wrytes produced in this proces for either partie They Repelled that reasone of Suspension Viz That the Suspender his tennants called in the decreet charged on were recently removed from off his Lands at the terme of Whitsunday preceeding the Citatione in the proces wherupon the decreet Charged on proceeds And Nominated and appointed a Committie of their Lordships own number to call for and hear both parties And Recommended to the said Committie to endeavor to Setle and agree both parties in the matter in debate betwixt them And to make report to the Councill with their first Conveniencie, And in the mean time Sisted executione upon the decreets Charged on untill ane Certaine day bygone, Which Committie haveing upon the Nyntein day of July Last by past Mett and heard both parties And haveing Considered the said matter They made their report therin to the saids Lords of his majesties privy Councill as the said report at more length bears And his Majesties high Commissioner and the Lords of his Majesties privy Councill Haveing this day upon report of the Committie appointed to Consider the said affair Found and hereby Finds the Letters and Charges raised at the instance of Alexander Strachan of Glenkindie and John Smith procurator Fiscall Orderly proceeded Against the said Alexander Gordon of Campbdell and remanent Suspenders and Ordaines the samen to take effect and to be put to farder executione against the said Alexander Gordone of Campdell ay and while he make payment to the said Alexander Strachan for himself of the soumes of money and pryces of the goods gear and others alleadged robbed and stollen from the said Alexander Strachan Charger by the said John Mcean vic Gillanders and others Extending to the Soume of Thrie Thousand Nyne hundred and Eightein pounds Scots money as alsoe ay and whill the said Gordon of Campdell pay and delyver to the said Alexander Strachan Charger for himself as said is, The Soume of ane Thousand fyve hundred pounds of Taskall And the Soume of ane Thousand thrie hundred pounds of expenses, Conforme to the Chargers oath in Litem as Likewayes ay and while he make payment to the said Charger as assigney Constitute be Alexander Leith of Belchurie Conforme to the assignatione dated the Twentie fifth day of March J^aj vi^c Nyntie […] years of the Soume of Twenty pound as the pryce of ane ox and Eight pound as the pryce of a Cow at lead wanting by the said Alexander Leith, And of the Soume of Sivin hundred merks of expensses Wherupon the said Alexander Leith has deponed he was at in recovering back his goods Extending in the haill the Soumes Charged for to the soume of Seven Thousand one hundred Fourtie and six pounds Scots money forsaid, And in Like maner ay and whill the said Alexander Gordon of Campdell make payment to the said John Smith procurator Fiscall Another of the Charters of the Soume of Seven Hundred Fourtein pounds twelve Shilling as the Tenth part of the said accumulat Soume allenarly due to the Commissioners of Justiciary for the Northern districts Conforme to and after the forme and tenor of the decreet Charged on obtained at the Instance of the saids Chargers against the said Alexander Gordon of Campdell Suspender The said John Mcean Gillenders and others before the Saids Commissioners upon the Twentie day of December J^aj vi^c Nyntie Nyne years in all points And his Majesties Commissioner and the Lords of his Majesties privy Councill Have by the same interloquitor Refused the bill of Suspension given in by Captain James Menzies tutor of Weyme against the said Alexander Strachan of Glenkindie upon the decreet therinmentioned But his Majesties Commissioner and the Lords of his Majesties privy Councill Hath Allowed and hereby Allowes the said Alexander Gordon of Campdell and the said Captain James Menzies tutor of Weyme to pursue in the said Alexander Strachan of Glenkindie his name or in their own names the wholl other accessories to and accomplices in the depredation Decerned for in the saids two decreets And that either before the Lords of privy Councill or Commission of Justiciary to be of new appointed for the highlands or any other Judges Competent Provydeing That the said Gordon of Campbdell and tutor of Weyme pursue the saids accessories upon their oun proper expensses And Reserveing all wayes to the Lords of privy Councill to determine after decreet is recovered upon the saids pursuits How farr the said Decreet Should be furthcomeing and by what proportiones to the said Gordon of Campdell and tutor to Weyme for ther respective releiffs as also for payment to them of all expences taskall money and others they have been or shall be put to And Ordaines Letters of horning on fiftein dayes under the Signet of Councill to pass hereon in forme as effeirs.