Act, 27 December 1694, Edinburgh

Edinburgh the Twentie day of november J^aj vj^c nyntie four years

D1694/11/20

D1694/11/20¹

Decreet

Decreet Gordon messenger Against Lumsdean

Anent the lybell or Complaint pursued befor the Lords of their majesties privy Councill at the instance of George Gordon in […] messenger with Concourse of Sir James Stewart his Majesties Advocat for his intrest in the matter underwritten Making mention That wher albeit by the Lawes and acts of parliament of this realme Convocationes of the leidges without Licence and declaired punishable as unlawfull Convocationes be the act thrie hundred and threttie one parliament Eight James the sixth, And that the unlawfull rising of Comons is punishable by the Confiscatione of their goods and lives to be at their majesties will as by the seventie seven act parliament Fourteinth James second and threttie fourth act parliament thrid James fourth and seventeinth parliament act Eightein James the sixth, and alse albeit the enterers into or makers of any bonds or leagues without their majesties priority and Consent are lyable to the pains, not only of warding their persones, But likwayes to be holden and execute as movers of seditione by the twelth act parliament tenth James Sixth, And sicklike albeit the deforcers of officers in executeing of their offices may not only be Called Criminally and their Lives be at ther Majesties will as by the act ² Eightie five parliament Eleventh James sixth But Likewayes that ane officer being deforced molested invaded, or pursued to the effussion of his blood in executeing of his office, The persons sumoned or Charged or any other of his. Causeing etc That swa as the deforcer or invader tynes all his moveables etc. And albeit manifast oppressione be punishable by death, And by the act fourtie second parliament fourth James fourth, and by the Eightie Eight parliament Eleventh James sixth, yet true it is That the said pursuer haveing upon the second day of Jully instant or one or other of the dayes of the said moneth, attended by four or five men as his asistants apprehended the persones of James Lumsdean in Strathmore within the house of William Wright in Wardfauld in the maynes of Auchterfoull by Toutching him with the wand of peace in their majesties name and authoritie haveing his blazen displayed as use is in such caices, and that be vertue of letters of Captione at the instance of Alexander Irving of Drum his master and Marjorie Forbes his Ladie for bringing the said Jams Lumsdean to Edinburgh, That he might depone as a witnes befor the Lords of Councill and Sessione in ane Civill actione anent the matter Contained in the said Captione, The said James Lumsdean Did not only make severall excusses for his not goeing allongst with the pursuer and his partie for the space of thrie hours at least But positively refused and swear that he would not goe allongst untill he pleased himself for no messenger in the kingdome altho the pursuer Commanded him oft and diverse times in their majesties name and took him by the hand to lead him allongst and ³ Likewayes refused to give ane bond of presentatione to Compeir at Edinburgh and depone in the said matter, altho the pursuer offered to accept of the same and sett him at libertie and when the pursuer required him to give up his armes as the kings prisoner in ther majesties name and authoritie, He positively and with many Oathes refused so to doe for ane long time and swear that he would not give his armes to any messenger in the kingdome, and at last when he pleased himself he gave up his armes to one of his oun nighbours or Comerads being then come to that place Declairing with all that he should not keep them long And that he should not want them long out of his oun possessione, and in the mean time his one and his servants being come to him, He whispered to them in their ears, which doubtles has been to Convocat their majesties Leidges in maner and to the effect underwritten and wherupon his sone and servants and others whom they Imployed did run throw the Countrey ilk one of them to severall Corners therof and therupon James Forbes in Kinnadie with seven or Eight armed men came to the house of William Wright with the said James Lumsdean and offered to enter the room wher they were, and that whither they would or not, and gave this reasone for it, That ther was ane man ther that he behooved to meet with, and being hindered to enter the same, he went of to another room Saying that ane Goodfellow would enter whither they would or not, And in the mean time James Lumsdean Declaired with oathes that he would not give his bond of presentation to any messenger in the kingdome And that now he Cared not a farthing for all the messengers in Scotland, And therafter the said James Lumsdean and James Forbes haveing come out of their Severall roomes to the open feilds they did goe aside and would not permitt the pursuer nor any of his partie to come near them for a long time, But whispered togither and Consulted and Contrived what they should doe, And then the said James Lumsdean after he hade spocken with the said James Forbes and seen the armed men that were with him, And haveing also learned that severall other⁴ great Companies of men from the severall Corners of the Countrie were Conveened and near-hand the place be that time he refused to goe in againe to the said house altho the pursuer Comanded him in ther Majesties name, But pretended he would goe no further, nor he should be sufered and permitted to goe, and wherupon the said pursuer with his partie went allong with him, And the said James Forbes in Company and his armed men whom he did lead and Command as their Captaine marching upon their head untill they were come to ane know or hillock near wher George Cattonach sone to John Cattenoch in Bellastraid also tenent to the said Laird of Drum was lying with Fourscore or ane hundred men or therby all armed and bodden in fear of⁵ weir, with Guns swords Durks and other weapons invasive and who were Comanded by the said George Cattenach as their Captaine, at least he appeared to be a Cheif ring leader amongst them, And they the saids Companies or multitudes of armed men swa Conveened from all Corners and Commanded as said is, and particularly by the said James Forbes in Kinnaldie, John Kelt in Pittalochie and the said George Cattanach James Christie servant to George Brown in Tarland Robert Simpsone servant to Alexander Moir in Gellen Thomas Shaw William Findlay and William Sector thrie servants to the said James Lumsdean and Archibald Kellies servant to William Fife in Strathmoir, Allaster Calder in Coull James Calder younger Alexander Calder in Heughead Lues Masson sone to John Masson in Tittibouty Lauchlan Stewart servant to Robert Clerk in Stonyfoord John Ramsay servant to John Calder in Boghead, John Smith in Gillen Donald Canzioch servant to the said James Calder, William Ross servant to Agnes Mylne in Boghead James Murgane in Strathmore, William Dunbar servant to the said Allaster Calder and ther Complices Came and offered to take away the said James Lumsdean by force, And when they inquyred at the said prisoner, If they should take him back from the pursuer, He desyred them to doe as they pleased, and when the said pursuer and his party detained and offered to keep the prisoner they fell upon the messenger and did not only beat and strick him but did most Cruely and barerously bruise blood wound and almost killed the pursuer and his asistants with swords Gunns staffs and other offencive weapons And the said James Lumsdean himself did not only beatt and strick the said pursuer But likwayes trampled him under his feet and walked upon his body, and hounded out and gave out the word of Command to the said rable and pointed to them his finger or hand whom they should fall upon of the pursuers partie, and what they should doe, and how they should behave, And Cryed to them he should goe with them that should winn⁶ lett them that should winn him near him, And sicklike the said James Forbes stood and ordered the said rable to bend their guns, and face about to one of the pursuers partie who was wounded and advertised them that the said wounded man wes bending ane gun to Shoot amongst them and therfore ordered them to turne their Guns and wherupon they fell upon him with great Crueltie againe till they left him almost dead and wherthrow the said pursuer was forced to lett the prisoner goe, after he hade brocken the wand of peace, and taken witnesses upon the said deforcement and ryot, And the said James Lumsdean betook himself to his libertie And in ane insulting maner desyred the pursuer and his partie to take him away and he would goe allongst with them knowing that they were not able to travell by reasone of their wounds, and that they durst not attempt any such thing for fear of his accomplices who were ready to kill them out right if they hade in the least offered to doe any such thing, Lykeas the said James Lumsdean did approve and Ratihabit all that was done In so farr as ⁷ he took⁸ the said James Forbes George Cattinach and the rest of ther accomplices to the said William Wrights house being ane Change house and intertained them ther drinking with them the rest of that day^{9 10} from thrie or four a Cloak in the afternoon or therby, And the most part of the night following In Requitall of the service they hade done him and makeing professione of kyndness ilk one of them to others upon the account of the same, and the said George Cattenoch and his accomplices not being Satisfied with all the highneous things they hade done, They did farder by manifast oppressione Cary away the said pursuer in his wounds towards the hill and wood of Collblaine threatning to hang him, If he would not by a wryte under his hand Discharge the said ¹¹ deforcement and ryot, and by their saids Crewell threatnings did extort some such paper or declaratione from him and when the pursuer hade Consented therto They took him back to the house of the said William Wright wher the said James Lumsdean and James Forbes and George Cattenoch and others their accomplices forced him to subscryve the same at least were accessory therto, And to highten the saids Crymes they did therafter when in their Cups send peremptor orders and Commands to the house of Robert Forbes in the maynes of Auchterfoull wher the saids wounded men were lyeing in their wounds to put them out of that Countrey or else they would deall worse with them yet, and which Convocatione deforcement and oppressione was accompanied with this farder Circumstance viz That the said James Lumsdean James Forbes George Cattenoch and their Complices aforsaids made and were actually entered into a privat league or assossiatione in the wryt betwixt themselves and severall other of the adjacent highland Countrey therabout to rise and Joyne with one and other in what ever Cause quarrell or Concernment wherthrow It is evident that the said James Lumsdean James Forbes and George Cattenoch and their accomplices aforsaid are guilty of the forsaid horid Crymes of unlawfull Convocatione deforcement of officers in their Majesties Leidges and of entering into unlawfull Leagues and associationes at least airt and part of the saids Crymes, And Therfore that they and ilk one of them ought to be Decerned in, the soume of […] to the pursuer in name of damnadges and otherwayes punished in their persones and estates To the terror of others to Comitt the like in time comeing And Anent the Charge given to the haill fornamed persones above Complained upon To have Compeired before the saids Lords of privy Councill personally at ane Certaine day now bygone To have answered to the grounds of the above written Complaint and to have heard and seen such order and Course taken theranent as appertaines as in the forsaid Lybell or Complaint and executiones therof at more length is Contained And sicklike anent the Lybell of Reconventione at the instance of the said James Lumsdean in Strathmoir, with Concourse of his majesties advocat as said is Making mentione That be the Law and practique of this and all other weell governed nationes The Conveening persones for any pretended cryme who are altogither free and Innocent of the same, and puteing them to needless Charges and expences The pursuer of such groundless actiones should be found Lyable to the partie in large expences, nevertheless the pretended actione of deforcement raised at the instance of George Gordon messenger for altogither groundless and the pursuer altogither Innocent of the samen in so farr as the Captione being only against the pursuer to Compeir as witnes It is offered to be proven that when he was apprehended by the said George Gordon messenger, He as likewayes some others upon his account offered to give their bonds of presentatione, and to present himself to the persones at whose instance the Caption was raised and to satisfie them theranent which the messenger refused, And yet notwithstanding the said James Lumsdean, Did therafter goe allongst with the messenger, as also it Is offered to be proven, That when the said pursuer was apprehended, albeit he hade Some armes about him, yet he gave them away to one of his oun nighbours to Cary home, and that he hade no armes when he was in the messengers hands no so much as a staff and that when the persones came near to the messengers when he was Carieing the said pursuer away, he discharged them to trouble and molest the messenger for he said he was willing to goe allongst with the messenger, and when they offered violence to the messenger The pursuer defended him, and that he haveing Called for his Staff which was reacht to him by one Standing by, he beatt off the persones that came near the messenger, And that he himself did not use the least violence to the messenger and that after all was over, He still Offered to goe allongst with the messenger, which the messenger refused, But with a great oath and asseveratione bad him goe wher he pleased These and severall other matters of fact tending to the said pursuers exonoratione are more fully mentioned in the said pursuers answers to the messengers Complaint, And Therfore the said pursuer Ought and should not only be assylzied from his groundles and Malicious Complaint raised against him, But the pursuer Condemned in the soume of […] for damnage and expences sustained be the pursuer throw this unjust persuit And Anent the Charge given to the said George Gordon messenger To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the forsaid Complaint and to have heard and seen such order and Course taken theranent as appertaines as the said Lybell of reconventione and executiones therof at more length is Contained The said principall lybell being upon the seventh day of August J^aj vj^c nyntie four years Called in presence of the saids Lords of privy Councill And the pursuer in the principall Cause Compeiring personally with Sir James Ogilvie Mr Hew and Mr David Dalrymples Mr David and Mr Robert Forbesses his Advocats, and the said James Lumsdean Allaster James and Alexander Calders John Smith and William Ross six of the defenders Compeiring also personally with Sir Patrick Home William Black and […] Lessly advocats for the haill defenders and the rest of the defenders being Lawfullie cited oft times Called and not Compeiring The lybell and answers therto being read and both parties advocats being fully heard, and a petition for the defenders Craveing that a day in september nixt¹² might be assigned for citeing the witnesses in the reconventione being Read, The saids Lords Grants Certificatione against the absent defenders and ordaines letters of denunciation to be direct to macers of messengers at armes Comanding them to pass to the marcat Cross of […] and other places needfull and ther in their majesties name and authoritie duely and Lawfullie and orderly denunce the saids absent defenders their majesties rebells and put them to their highnes horne escheat and inbring all their moveable goods and geir to their majesties use for their Contemptione and disobedience And the Councill appointed a Committie of their oun number for examineing of the saids witnesses who all Compeired and made faith to that Comittie to examine the witnesses which should be cited in the Reconventione and assigned a certaine day for citeing of them And ordained the said James Lumsdean to find Cautione that he should appear before the Comittie and attend all the dyets of the process either before the Comittie or Councill under the penaltie of five hundred merks which Cautione was found accordingly, And the said Lybell of Reconventione being upon the sixth day of september J^aj vj^c nyntie four Called and the pursuer Compeiring personally with the said Sir Patrick Home and William Black his advocats And the defender Compeiring alse personally with Mr David and Robert Forbesses, The Lybell of Reconvention and answers therto being read, and both parties advocats fully heard, The same was admitted to the pursuers probatione, and the witnesses haveing made faith at the barr were remitted to be examined by a Comittie, And the Councill Superceeded the advyceing of the probatione either on the principall Lybell or lybell of reconventione untill ane Certaine day now bygone and the Comittie haveing examined the witnesses upon both Lybells The Councill by their Interloquitor of the fifteinth of november J^aj vj^c nyntie four years before advyseing of the process Recomended to a Comittie of their oun number to Call for and hear both parties and indeavor to setle and agree them and incaice of deficulty to Repor[t] to the Councill, Which Comittie haveing made their report to the Councill who haveing this day Considered the samen The Decerne and Ordain The said James Lumsdean defender in the principall Lybell To make payment to the witnesses cited and appearing in the principall process at the rate of Eight shilling scots for each foot man, and sixtein shilling scots money forsaid for each horssman per diem reckoning all the time they attended at Edinburgh and thrie dayes for their comeing to the same, And alse many for their returneing home And alse Decernes and Ordaines the said James Lumsdean To pay the soume of Two hundred merks scots to George Gordone messenger for his expensses and damnage and upon payment therof The saids Lords have assoylzied and heirby assoylzies the said James Lumsdean from the forsaid Lybell and haill articles therof And Declairs him free of the matter Lybelled and from being quarrelled or pursued before any Judge or Court Civill or Criminall for any of the Deeds Lybelled in the said process, And the saids Lords Doe heirby Give Order and warrand to the shirref principall of the shirefdome of Aberdeen To Cause search for seize and apprehend the persones of George Cattinach James Forbes and Alexander Moir and Comitt them prisoners within the Tolbooth of […] And Ordaines them to be transported from shireff to shireff under a suficient guaird untill they be brought to Edinburgh And to be delivered to the magistrats of Edinburgh, And ordaines the said magistrats of Edinburgh and keeper of their Tolbooth to receive and detaine the saids persones prisoners within the same untill farder order, and allowes the Clerks of Councill to give up the bond granted be the said James Lumsdean and his Cautioner And Ordaines letters of horning on fiftein dayes and others needfull to be direct heiron in forme as effeirs.