Decreet, 2 August 1700, Edinburgh

Judicial Proceeding, 10 December 1700, Edinburgh

Att Edinburgh The second day of August one Thousand seven Hundred years

D1700/8/61

Decreet

Decreit Strachan of Glenkindie against Captain Menzies and others

Anent the Bill of Suspension presented and given in to the Lords of his Maejsties privy Councill be Captain James Menzies Lawfull sone to the deceast Sir Alexander Menzies of that ilk and Donald Mccolroy alias Cameron Allaster and Evan Mccolroyes his brothers Grigor Mcjanoig and John Mccoill vicenduie designed by the pretended decreet aftermentioned in Cainsserah and Kinshlaicker in Ranach Against Alexander Strachan of Glenkindie Shewing That wher the said Captain James Menzies and the fornamed persones were Lately charged Conjunctllie and severallie at the instance of the said Alexander Strachan of Glenkindie be vertue of a decreet obtained at his Instance against the petitioner upon the twentie seventh day of Aprill Last before the Commissioners of Justiarij appointed for the Northern district of this kingdome To make payment to him for himself and as assigney Constitute by Alexander Leith of Bellchirry of the soume of six Thousand seven hundred and twenty nyne pounds threttein shilling four penies as the pryce and value of Certaine goods gear Catle and other moveables alledged stollen spulzied and away taken from the saids Alexander Strachan and Alexander Leith at the respective times and in the way and maner Lybelled By the saids Donald Allaster and Evan McColroyes Grigor McJanoig and John Roy McCoillvicenduy, and for the damnage and expences wared out by the Charger and his cedent theranent Extending in the haill to the soume abovementioned, And Likwayes To make payment to James Smith procurator Fiscall of the Court off the soume of six hundred and seventy two pounds Nyntein shilling four pennies scots as the tenth part of the said accumulat soume due to the Commissioners for their own charges attendance and expences within ane Certaine short space nixt after the Charge Under the payne of poynding and other Legall dilligence etc more wrongeously and unjustlie Considering It is of veritie That the forsaid Decreet is null in itself and mos[t]2 unjustlie pronunced in so farr as primo The dec[reet]3 proceeding upon a lybell for restitutuion of the value prices of Certaine goods therin mentioned as Randum without any regaird to probability or truth, The decerned is exactly Conforme to the Lybell, and albeit it was pars judicis to have taxed and modified the extravagant Oathes in Litem of the parties, yet the Commissioners have Decerned simply conforme to the saids oathes nay even beyond them, And that this may yet Further appear The Lords would Consider how extravagantly the particulars are Lybelled from the few instances of many following, as primo The Lybell and Decerrit bears a merk per diem for each horse, Albeit by the Custome before the Lords of session the violent profitts of Labouring horse or Oxen even in Labouring time is only extended to five shilling and the most to seven shilling per diem, Secundo The pursuer Lybells Eightie seven pounds as the intrest for half a year of the soume of Two Thousand five hundred pound which is usurious the intrest amounting only to seventie five pound evin without deduceing retention and yet the Decernitor is conforme to the Lybell Which is a plain evidence that the Decernitur has proceeded without any due consideration, And that the oathes in Litem were given without any regaird to truth; Tertio Glenkindie Depones that his expences in prosecuteing the process Did Extend to Two Thousand ane hundred pounds, which was a most exorbitant and extravagant soume, and yet the Commissioners Decerned without any modifcation at the first dyet of Compearance, without demanding any particular accompt of the Least mark of probabil And to render the matter yet more absured, Albeit Glenkindy was the only pursuar and his oath as to the expences was to be understood to Comprehend all the expences yet Leith, Glenkindies pretended assigney is allowed to give his oath in Litem seperatly and he depones that his expences amounted to six hundred merks, And the Damnadge he sustained throw the want of his goods Albeit he acknowledges he recovered all except ane Cow and ane Ox Did amount to six hundred merks more so that the expences decerned in favors of the pursuers by and attour the Extravagancy of the violent profitts Extends to about Thrie Thousand pounds scots And yet ther was bot one proces of one Citation and dyet and only four or five witnesses called which ware for the most part the pursuers oun servants, and this vast soume of expences is pretended to have been given out betwixt October and Aprill, And yet all these expences are allowed without any modifcation or taxataion, And the Decernitur proceeds for a Considerable soume, upon Leiths oath, who was neither partie nor witnes and his expence is stated as a seperat soume tho they were most apparentely contained under the pursuers oath in Litem Tertio albeit the pursuer pass from some part of the Lybell in his oun oath, yet the decernitur is roundly for all Quarto the decreet is null Because the pursuer Lybells not only for the damnadges he sustatined himself But for repairation and restitution of the goods taken from his servants and from his tennents, Albeit he neither Lybells nor produces any title from them And evin as to that part of the Lybell to which he pretends right as assigney be the said Alexander Leith it is most apparent by the extract of the decreet theirwith produced That albeit the pursuer pretended a right be vertue of ane assignation from Leith and as assigney Obtained a warrand to charge the Petitioner, yet the assignation itself is a date posterior to that warrant and Consequently the warrant was obtained by obreptione expresso mendario, Quinto The decreet is manifastly null for want of probation as is clearly instructed by the extract of the depositiones under the Clerks hand also therwith produced bearing nothing but hear-say and it is especially to be considered that after the witnesses hade been examined two of the very same witnesses being Glenkindies own servants are reexamined, Which was to this intent, That haveing been present at the depositiones of the other witnesses they might be the more closs and pack’t in the answers to other new Interogators, And as farder to be remarked That albeit the testimonies as they are marked bear the purging of the witnesses of partiall Councill or good deeds received yet by ane instrument therwith produced, It appears that they were not purged, And particularly Greogor Og Mcgregor the pretended Tascular was not only, not purged bot was admitted albeit he was manifastly guiltie of partiall Councill and that it was most contrary to Comon practise to admitt the Tascular as a witness, and in Like maner John Riach another witnes was admitted albeit it was instructed against him as appears by the said instrument that he was ultronious not contained in the list of witnesses and objected that he was one of pretended depredators himself, and that he was infamous and formally declared fugative, and besides these, The matteriall witnesses are Glenkindies own servants, so that the probation is doubly defective First because the point cheifly to be proven viz That the fornamed persones alleadged Depredators were the persones that Committed the Spulzie is only proven by hear-say, and then the witnesses who prove them and nixt the testimonies are unduely marked Sexto as the Corpus delicti is not proven so neither is it at all proven That the said Captain James Menzies was either tutor or in the termes or Circumstances of the acts of parliament Lybelled for he was neither the Land Lord Chiftain Leader Baillie, Wodsetter or master of the alleadged depredators, nor can he be Lyable as tutor quheranent he were really tutor Because ther is no such Law nor are penul Lawes to be extended, Because de casu in Causum which being facti ought to have been proven albeit their hade been no body present to have denyed it, as indeed the Lybell and whole qualificationes were denyed, so that the decret as to this point is utterly without probation and void, Wherby its evident that the Commissioners have Committed gross and manifast iniquity in pronunceing such a decreet, Likeas the same is null as to the said Captain James Menzies upon this ground that a procurator haveing offered to Compear for him and propon peremptor defences, The saids Commissioners contrair to all forme of Law did refuse to admitt him albeit the actione was only ad Civilus effectus as is instructed by the Instrument produced, Septimo as the proces and decreet are utterly informall and null so the Lybell it self was most Irrelevantly conceived against the said James Menzies tutorio nominae without calling the pupill or his other pretended tutors, and the Lords are intreated to Consider the Consequences of such a proces wherin all parties haveing intrest are neither called nor is their any direct Law to found the Conclusion of such a Lybell, And if the tutor being Decerned should make payment of the soume as tutor he might be in danger never to recover his releiff off the pupill who is not concerned in the proces Octavo the Lybell is yet furder most Irrelevant In so farr as the said Captain Menzies is decerned Simply to make restitutione or payment of the values, Wheras by the Lawes of nationes, and by the Law of this nation in particular no man is directly Lyable for another mans guilt, Bot the Oblidgment upon the master is only to present to Justice or doe sufficient dilligence for that effect and in case of faillie as the punishment and Certification for not doeing of what is in their power they are declared Lyable for the damnadges, And Therfore the Lybell ought to have been alternatively Conceived aither to have done dilligence, or to be Lyable and it wuld have been cleared That all dilligence was used and swa the saids Lords might evidently perceive etc. nevertheless for obedience they were instantly content to find sufficient Cautione etc Incase etc. And Therfore etc Suspend etc And Therefore Humbly Craveing the saids Lords would grant Letters for Summonding the said Chargers To Compear before the saids Lords at ane Certaine day Bringing with them the forsaid pretended decreet grounds and warrants therof etc 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, Upon which bill of suspension The Lords of his Majesties privy Councill by their delyverance of the fourth day of May Jaj vjc nyntie nyne years sisted execution upon the decreet charged on till a Certain day, And in the mean time alloued the Charger to see and answer the decreet charged on, And therafter the said bill of suspension with the answers given in therto by the Charger Being upon the twentie nynty day of June Jaj vjc nyntie nyne years Read in presence of the saids Lords of his Majesties privy Councill Their Lordships nominated and appointed a Committie of their oun number to consider both the bill and answers therto, and to make ther report to the Councill, And the saids Lords of his Majesties privy Councill, haveing upon a bill of suspension given in to them by Gordon of Campdell against the said Laird of Glenkindie upon the Nynth of July Last by past appointed a Committie of their oun number to endeavor to setle and agree, and to call for and hear both parties in the matter in debate betwixt them; And to make their report to the Councill, Which bill of suspension given in by Gordon of Campdell is Coincident with the bill of suspension given in by the said Captain James Menzies, And the said Committie haveing accordingly mett They made their report to the Councill, And the Councill haveing Considered the Report, They have Refused and hereby Refuses the desyre of the said bill of suspension presented and given in to them by the said Captain James Menzies against the said Alexander Strachan of Glenkindie Bot his Majesties Commissioner and the Lords of his Majesties privy Councill Have Allowed and hereby Allowes the said Gordon of Campdell and Captain James Menzies tutor of Wemye to pursue in Glenkindies name or in their own name the whole other accessories to and Complices in the depredation Dicerned for in the two Decreets charged on, And that either before the Lords of privy Councill or Commissioners of Justiciary to be of new appointed for the Highlands, or any other Judges Competent provyding that the said Gordon of Campdell and tutor of Weyme pursue the said accessories upon their own proper expences, and Reserving allwayes to the Lords of privy Councill to determine after decreet is recovered upon the saids pursuits how farr the said decret should be furthcomeing and by what proportion the said Gordon of Campbell and Tutor of Weyme for their 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 and others needfull to pass hereon in forme as effeirs.

Att Edinburgh The second day of August one Thousand seven Hundred years

D1700/8/61

Decreet

Decreit Strachan of Glenkindie against Captain Menzies and others

Anent the Bill of Suspension presented and given in to the Lords of his Maejsties privy Councill be Captain James Menzies Lawfull sone to the deceast Sir Alexander Menzies of that ilk and Donald Mccolroy alias Cameron Allaster and Evan Mccolroyes his brothers Grigor Mcjanoig and John Mccoill vicenduie designed by the pretended decreet aftermentioned in Cainsserah and Kinshlaicker in Ranach Against Alexander Strachan of Glenkindie Shewing That wher the said Captain James Menzies and the fornamed persones were Lately charged Conjunctllie and severallie at the instance of the said Alexander Strachan of Glenkindie be vertue of a decreet obtained at his Instance against the petitioner upon the twentie seventh day of Aprill Last before the Commissioners of Justiarij appointed for the Northern district of this kingdome To make payment to him for himself and as assigney Constitute by Alexander Leith of Bellchirry of the soume of six Thousand seven hundred and twenty nyne pounds threttein shilling four penies as the pryce and value of Certaine goods gear Catle and other moveables alledged stollen spulzied and away taken from the saids Alexander Strachan and Alexander Leith at the respective times and in the way and maner Lybelled By the saids Donald Allaster and Evan McColroyes Grigor McJanoig and John Roy McCoillvicenduy, and for the damnage and expences wared out by the Charger and his cedent theranent Extending in the haill to the soume abovementioned, And Likwayes To make payment to James Smith procurator Fiscall of the Court off the soume of six hundred and seventy two pounds Nyntein shilling four pennies scots as the tenth part of the said accumulat soume due to the Commissioners for their own charges attendance and expences within ane Certaine short space nixt after the Charge Under the payne of poynding and other Legall dilligence etc more wrongeously and unjustlie Considering It is of veritie That the forsaid Decreet is null in itself and mos[t]2 unjustlie pronunced in so farr as primo The dec[reet]3 proceeding upon a lybell for restitutuion of the value prices of Certaine goods therin mentioned as Randum without any regaird to probability or truth, The decerned is exactly Conforme to the Lybell, and albeit it was pars judicis to have taxed and modified the extravagant Oathes in Litem of the parties, yet the Commissioners have Decerned simply conforme to the saids oathes nay even beyond them, And that this may yet Further appear The Lords would Consider how extravagantly the particulars are Lybelled from the few instances of many following, as primo The Lybell and Decerrit bears a merk per diem for each horse, Albeit by the Custome before the Lords of session the violent profitts of Labouring horse or Oxen even in Labouring time is only extended to five shilling and the most to seven shilling per diem, Secundo The pursuer Lybells Eightie seven pounds as the intrest for half a year of the soume of Two Thousand five hundred pound which is usurious the intrest amounting only to seventie five pound evin without deduceing retention and yet the Decernitor is conforme to the Lybell Which is a plain evidence that the Decernitur has proceeded without any due consideration, And that the oathes in Litem were given without any regaird to truth; Tertio Glenkindie Depones that his expences in prosecuteing the process Did Extend to Two Thousand ane hundred pounds, which was a most exorbitant and extravagant soume, and yet the Commissioners Decerned without any modifcation at the first dyet of Compearance, without demanding any particular accompt of the Least mark of probabil And to render the matter yet more absured, Albeit Glenkindy was the only pursuar and his oath as to the expences was to be understood to Comprehend all the expences yet Leith, Glenkindies pretended assigney is allowed to give his oath in Litem seperatly and he depones that his expences amounted to six hundred merks, And the Damnadge he sustained throw the want of his goods Albeit he acknowledges he recovered all except ane Cow and ane Ox Did amount to six hundred merks more so that the expences decerned in favors of the pursuers by and attour the Extravagancy of the violent profitts Extends to about Thrie Thousand pounds scots And yet ther was bot one proces of one Citation and dyet and only four or five witnesses called which ware for the most part the pursuers oun servants, and this vast soume of expences is pretended to have been given out betwixt October and Aprill, And yet all these expences are allowed without any modifcation or taxataion, And the Decernitur proceeds for a Considerable soume, upon Leiths oath, who was neither partie nor witnes and his expence is stated as a seperat soume tho they were most apparentely contained under the pursuers oath in Litem Tertio albeit the pursuer pass from some part of the Lybell in his oun oath, yet the decernitur is roundly for all Quarto the decreet is null Because the pursuer Lybells not only for the damnadges he sustatined himself But for repairation and restitution of the goods taken from his servants and from his tennents, Albeit he neither Lybells nor produces any title from them And evin as to that part of the Lybell to which he pretends right as assigney be the said Alexander Leith it is most apparent by the extract of the decreet theirwith produced That albeit the pursuer pretended a right be vertue of ane assignation from Leith and as assigney Obtained a warrand to charge the Petitioner, yet the assignation itself is a date posterior to that warrant and Consequently the warrant was obtained by obreptione expresso mendario, Quinto The decreet is manifastly null for want of probation as is clearly instructed by the extract of the depositiones under the Clerks hand also therwith produced bearing nothing but hear-say and it is especially to be considered that after the witnesses hade been examined two of the very same witnesses being Glenkindies own servants are reexamined, Which was to this intent, That haveing been present at the depositiones of the other witnesses they might be the more closs and pack’t in the answers to other new Interogators, And as farder to be remarked That albeit the testimonies as they are marked bear the purging of the witnesses of partiall Councill or good deeds received yet by ane instrument therwith produced, It appears that they were not purged, And particularly Greogor Og Mcgregor the pretended Tascular was not only, not purged bot was admitted albeit he was manifastly guiltie of partiall Councill and that it was most contrary to Comon practise to admitt the Tascular as a witness, and in Like maner John Riach another witnes was admitted albeit it was instructed against him as appears by the said instrument that he was ultronious not contained in the list of witnesses and objected that he was one of pretended depredators himself, and that he was infamous and formally declared fugative, and besides these, The matteriall witnesses are Glenkindies own servants, so that the probation is doubly defective First because the point cheifly to be proven viz That the fornamed persones alleadged Depredators were the persones that Committed the Spulzie is only proven by hear-say, and then the witnesses who prove them and nixt the testimonies are unduely marked Sexto as the Corpus delicti is not proven so neither is it at all proven That the said Captain James Menzies was either tutor or in the termes or Circumstances of the acts of parliament Lybelled for he was neither the Land Lord Chiftain Leader Baillie, Wodsetter or master of the alleadged depredators, nor can he be Lyable as tutor quheranent he were really tutor Because ther is no such Law nor are penul Lawes to be extended, Because de casu in Causum which being facti ought to have been proven albeit their hade been no body present to have denyed it, as indeed the Lybell and whole qualificationes were denyed, so that the decret as to this point is utterly without probation and void, Wherby its evident that the Commissioners have Committed gross and manifast iniquity in pronunceing such a decreet, Likeas the same is null as to the said Captain James Menzies upon this ground that a procurator haveing offered to Compear for him and propon peremptor defences, The saids Commissioners contrair to all forme of Law did refuse to admitt him albeit the actione was only ad Civilus effectus as is instructed by the Instrument produced, Septimo as the proces and decreet are utterly informall and null so the Lybell it self was most Irrelevantly conceived against the said James Menzies tutorio nominae without calling the pupill or his other pretended tutors, and the Lords are intreated to Consider the Consequences of such a proces wherin all parties haveing intrest are neither called nor is their any direct Law to found the Conclusion of such a Lybell, And if the tutor being Decerned should make payment of the soume as tutor he might be in danger never to recover his releiff off the pupill who is not concerned in the proces Octavo the Lybell is yet furder most Irrelevant In so farr as the said Captain Menzies is decerned Simply to make restitutione or payment of the values, Wheras by the Lawes of nationes, and by the Law of this nation in particular no man is directly Lyable for another mans guilt, Bot the Oblidgment upon the master is only to present to Justice or doe sufficient dilligence for that effect and in case of faillie as the punishment and Certification for not doeing of what is in their power they are declared Lyable for the damnadges, And Therfore the Lybell ought to have been alternatively Conceived aither to have done dilligence, or to be Lyable and it wuld have been cleared That all dilligence was used and swa the saids Lords might evidently perceive etc. nevertheless for obedience they were instantly content to find sufficient Cautione etc Incase etc. And Therfore etc Suspend etc And Therefore Humbly Craveing the saids Lords would grant Letters for Summonding the said Chargers To Compear before the saids Lords at ane Certaine day Bringing with them the forsaid pretended decreet grounds and warrants therof etc 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, Upon which bill of suspension The Lords of his Majesties privy Councill by their delyverance of the fourth day of May Jaj vjc nyntie nyne years sisted execution upon the decreet charged on till a Certain day, And in the mean time alloued the Charger to see and answer the decreet charged on, And therafter the said bill of suspension with the answers given in therto by the Charger Being upon the twentie nynty day of June Jaj vjc nyntie nyne years Read in presence of the saids Lords of his Majesties privy Councill Their Lordships nominated and appointed a Committie of their oun number to consider both the bill and answers therto, and to make ther report to the Councill, And the saids Lords of his Majesties privy Councill, haveing upon a bill of suspension given in to them by Gordon of Campdell against the said Laird of Glenkindie upon the Nynth of July Last by past appointed a Committie of their oun number to endeavor to setle and agree, and to call for and hear both parties in the matter in debate betwixt them; And to make their report to the Councill, Which bill of suspension given in by Gordon of Campdell is Coincident with the bill of suspension given in by the said Captain James Menzies, And the said Committie haveing accordingly mett They made their report to the Councill, And the Councill haveing Considered the Report, They have Refused and hereby Refuses the desyre of the said bill of suspension presented and given in to them by the said Captain James Menzies against the said Alexander Strachan of Glenkindie Bot his Majesties Commissioner and the Lords of his Majesties privy Councill Have Allowed and hereby Allowes the said Gordon of Campdell and Captain James Menzies tutor of Wemye to pursue in Glenkindies name or in their own name the whole other accessories to and Complices in the depredation Dicerned for in the two Decreets charged on, And that either before the Lords of privy Councill or Commissioners of Justiciary to be of new appointed for the Highlands, or any other Judges Competent provyding that the said Gordon of Campdell and tutor of Weyme pursue the said accessories upon their own proper expences, and Reserving allwayes to the Lords of privy Councill to determine after decreet is recovered upon the saids pursuits how farr the said decret should be furthcomeing and by what proportion the said Gordon of Campbell and Tutor of Weyme for their 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 and others needfull to pass hereon in forme as effeirs.

1. NRS, PC2/28, 1r-4r.

2. Damage to page.

3. Damage to page.

1. NRS, PC2/28, 1r-4r.

2. Damage to page.

3. Damage to page.