Act, 6 October 1697, Edinburgh

Att Edinburgh the Second day of March J^aj vi^c nyntie seven yeirs

D1697/3/2

D1697/3/2¹

Decreet

Decreit John Niccoll against Ensigne Kerr

Anent the Letters or lybell of complaint raised and persewed befor the Lords of his majesties privie Counsell at the instance of John Niccoll writer in Edinburgh with concurse of Sir James Stewart his majesties Advocat for his highnes interest in the mater wnderwritten Making mentione That wher the causeles invadeing assaulting beatting brwiseing and crwellie wounding of the bodies of any of our peaceable Subjects to the great effwsione of ther blood and hazard of ther Lives when they are in civilitie and discretione addressing themselvs to the persones who does the Same about ther Laufull and necessarie affairs Are crymes of ane high nature and Severlie pwnishable especiallie when the Same is done upon the high streets or publict shoars in the open veiw of the Swn yet trwe it is that the said John Niccoll Complainer haveing a factorie from one Owane Griffeth victwaller in London for persweing Ensign John Kerr in Collonell Sir William Douglas his regiment for about seven pund sterleing which the Ensigne took on when he was at Londone for bed board and other necessaries and the Complainer haveing resolved to alse the money civillie not being resolved for Law wnles he was refwised and putt to the Same the Complainer went to Leith on Saturday the Threttein day of Febrwarie instant and haveing mett with the Ensigne upon the publict shoar about twelve houres of the day and haveing civillie and discreitlie told him of his factorie and desyred he would be pleased to goe into any house and read his constitwents Letters he in place of any civill ansuer fell to curseing and Damneing and bad God Dam his creditor and the Complainer both for he was not concerned with any of them and with these words in a furious passione most crwellie barbarowselie and inhwmanlie and with his Cain did beatt the Complainer over the head neck souldiers and back untill the complainer was hardlie able to Sturr from the place whilest all this tyme the said Complainer had nether armes nor staff nor any thing about him but his cloak And when he did call owt to the Spectators and desyred them to be wittnesses to this his evill treatment The Ensigne againe returned more mad and fwrious and Threshed the said Complainer upon the head and wounded him through the hatt to the great effwsione of his blood soe that with the stroaks he tore a pairt of his cloak and when being in hazard of his life he was caryed from off the publict shoar into a private house wher he might have his wounds paused and blood taken from him some of the officers of the said Collonell Douglas his regiment haveing come in began to mediat with the Complainer that the affair might be taken away privatelie without any more noise But the said Ensigne Kerr haveing come in efter the foirsaids officers asked the complainer how he was and without getting any ansuer he pressed in betuixt the officers and crwellie and barbarouselie beatt the complainer to the ground upon that verie place of the head which he had formerlie wounded and was Just now paused by a chirurgion And threatned that if he could be suffered by these in the rowme he would rwn him throw and cursed himself that he had not Done it when he Last pairted with him saying that if he should stick four Like the Complainer nothing would befall him and tho he should kill six lyke him it was but one Life for all and when his own Leivetennent and another of the companie did bid him beware for what he had done might be fair to Lowse him his Commissione He boldlie answered God Dam him if he cared a fart for the Kings Commissione upon which he was comanded to the Door by the officers present and when he was goeing owt he boldlie and crwellie menaced and threatned with many bloodie oaths that he would Cutt the Complainers throatt when he was not Looking for it Efter all which the Complainer was caried up to Edinburgh wher he still lyes Langwishing upon his bed not able to Stwrr for the brwises and wounds which he hath receaved and in the chirurgions hands in a most dangerows case By all which it may evidentlie appear to the Lords of our privie Counsell that the said Ensigne Ker is gwiltie of ane high and attrocious ryot and ought and should not onlie to make payment and satisfactione to the Complainer of the Soume of […] for damnadge and expensses incurring of his saids wounds But Likewayes ought and should be furder pwnished in his persone and goods to the terror of others to comit the lyke in tyme comeing And anent the charge given to the said defender to have compeared personallie befor the saids Lords of privie Counsell at ane certaine day now bypast to have ansuered to the grounds of the above complaint And to have heard and sein such order and course taken theranent As the saids Lords should think fitt wnder the paine of rebellion etc As in the principall lybell with the executiones therof at more lenth is contained The which lybell being upon the twentie third day of Febrwary Last bypast called in presence of the saids Lords of his majesties privie Counsell The persewer being absent was excused in respect of his indispositione by his wounds and his wife compearing personallie at the barr with Mr John Frank his advocat And the said Ensigne Ker defender Compeareing also personallie with Mr Alexander Fergwsone his advocat The lybell and ansuers therto with a petitione given in by the defender being read The Counsell admitted the lybell to the perseuers probatione And the witnesses cited and compeareing haveing made faith The saids Lords appointed a Comitie for examineing of the wittnesses and granted furder dilligence by Captione against the absent witnesses and allowed the Defender to raise a reconventione and insist therin in Commwm forma Which Comitie haveing accordinglie met the persewer adduced diverse and sundrie famows witnesses befor them who being all solemnlie sworne interrogat and examined in the said mater upon ther great oathes deponed and declaired As ther oathes and depositiones extant in proces bears And the Saids Lords of his majesties privie Counsell haveing this day advysed the Said proces and haveing considered the depositiones of the wittnesses with a petitione given in for the persewar The Saids Lords of his majesties privie Counsell Doe heirby find the lybell proven And therfore they have fyned and heirby fynes the said Ensigne Ker defender in the Soume of two Hundereth merks Scotts And decernes and ordaines him to make payment and Satisfactione to the Said John Niccoll persewer of the Said Soume of two Hundereth merks and decernes and ordaines the said defender to give bond and find Sufficient cawtione acted in the books of his majesties privie Counsell that the said John Niccoll his wife bairnes men tennents and servants shall be harmles and Skaithles of the Said Ensigne Ker his wife bairnes men tennents and servants in his persone and goods and in the peaceable possessione of his Lands heretadges tacks Steedings rowmes and possessiones and on nowayes Shall be troubled or molested be him ther untill nor by no others of his causeing sending hunding owt Comand resett assistance or ratihabitatione whom he may Stopp or Lett directlie or indirectlie frae the day and date heirof wnder the penaltie of Ane Thowsand merks in caise he Shall transgress in any pairt of the premisses And ordaines the Said Ensigne Kerr to continwe prisoner till he pay the Said fyne and find the foirsaid cawtione and ordaines Letters of horneing on fiftein dayes and others needfull to be direct heiron wnder the Signet of Cownsell in forme as effeirs And in respect the said Ensigne Kerr Defender hes payed the forsaid fyne and also hes given bond and fownd Cawtione in maner foirsaid Therfore decernes and ordaines the magistrats of Edinburgh and keeper of ther tollbwith wher he is prisoner to sett him at Libertie furth therof