Judicial Proceeding, 10 December 1700, Edinburgh

Att Edinburgh the Twenty thrid day of January J^aj vi^c years

D1700/1/12

D1700/1/12¹

Decreet

Decreit Suspender James Sinclar Against Donald Gow

Anent our Soveraigne Lords Letters of Suspension raised at the Instance of James Sinclar brother to the Laird of Drumbeath, Androw Southerland in Howstrie, John and Alexander Mcinglasses Hew Mckie John McAngus, Alexander and John Gower William Gun and William Gun Taylor in Howstrie Making Mentione That wher the said James Sinclar suspender was Charged upon the fiftein day of September then Last by past Be vertue of the ² Commissioners of Justiciary of the Highlands for the Northerne district their decreet recovered against the said Suspenders at the instance of Alexander Bean in Dalnaglatten Donald McAngus baine ther Donald McWilliam More Donald Gow in the feilds of Smarell and James Wiseman wryter in Elgine procurator Fiscall and Collector to the saids Commissioners To make payment to the said persones Chargers of the respective Soumes of money underwrittin Ilk ane of them for their oun parts in maner afterdivydit viz the said Alexander Bayne the Soume of Four Hundred merks Scots Item the said Donald Mcangus Baine Four Hundred and Fiftie merks Item to the said Donald Mcwilliamore Four Hundred merks And to the said Donald Gow Four hundreth and Fiftie merks as the damnadges sustained by them throw the saids suspenders Committing of the Crymes Lybelled against them, and alse to make payment to the said James Wiseman of the Soume of Two […] as the fine wherin the said James Sinclar Suspender was Decerned by the said Commissioners for the saids Crymes wherin he is alleadged to be found guilty as also to make payment to the said Donald Gow in Dalnaholl John Gun ther and remanent witnesses Amounting to the number of fiftein persones to ilk ane of them the Soume of Eight Shilling Sterling money for their expensses as witnesses As also the saids Commissioners have Caused arreist in the hands of John Southerland merchant in Elgine thrie horsses and all other goods belonging to the said James Sinclar while payment of the forsaid Soumes as the Coppie of Areistment produced to the saids Lords would testifie As Also have Decerned the said James Sinclar Suspender to remaine in prison untill he Should find Cautione to keep the peace to William Gunn Servitor to Langlands And the said Androw Southerland was charged to make payment to the said James Wiseman for the use of the saids Commissioners the Soume of Two hundred pounds Scots Item to the said Alexander and Donald Baynes Donald McWilliammore and Donald Gow of the soume of seventein hundred merks with a Tenth part more therof to the said James Wiseman as Collector forsaid Item to the said Donald and John Guns and remanent witnesses Amounting to the number of Fiftein to ilk ane of them the soume of Eight Shillings Sterling for their expensses as witnesses and that Immediatly before the said James Sinclar and Alexander Southerland their removeall out of Elgine prisone wher they now are as also the saids Commissioners by their Decreet Have intercomuned the saids John and Alexander Mcinglasses who were absent, And Decerned the said Hew Mckie and John Mcangus their Luggs to be nailled to the Tron, and that for their alleadged apprehending of the saids Alexander and Donald Baines and the other Chargers about two years Since, and binding them and Carieing them away bound and that for some moneths therafter for their comeing to the house of Donald Gow and takeing away from him thrie Cowes and a Calf and a horss As also by a decreet and Sentance of the Shirriff Court of Caithnes Holden by Hemprigs The said John and Alexander Mcinglasses and Alexander Gow in Strath of Dumbeath were denunced fugatives for not Compearance at the instance of the procurator Fiscall of that Court and the said Donald Gow most wrongeously and unjustly Considering It is of Verity Primo The Commissioners Committed iniquity In Repelling these Just objectiones against the witnesses That the Suspender hade not gott a list of their names with their Lybell as is provided by the act of parliament as also that they were the pursuers servants and so were not habite witnesses Secundo They Repelled this relevant defence as to the apprehending of McWilliamore Because it was done by Hemprigs order Shireff depute of Caithness and ane of the Commissioners The said Mcwilliamore being suspected for Stealling ane Ox from ane of Mr Sinclars tennents and was traced ex resenti to Mcwilliamors house, and Which order wes acknowledged by Hemprigs then present being one of the Commissioners, Tertio the fyneing of the said James Sinclar in Thrie Thousand merks was most extravagant and unjust for his alleadged being present when the said Donald Baine and the other pursuers were apprehended which wes all the Cryme that was Lybelled against him if the Samen hade been proven against him by habite witnesses as it was not, Quarto the Decerning him in Thretein hundred merks besides the fyne for pretended damnadges sustained by the pursuers were most unjust for all that was alleadged to be taken away was only thrie Cowes and a horss Wheras it was Imposible that the damnadges Sustained by takeing away So few goods could amount to Twenty pounds Scots Quinto the Commissioners Committed gross iniquity in Repelling this Just defence that the saids Cowes Calf and horss alleadged taken from the said Donald Gow were not his goods bot did properly belong to John Mcinglass and were given in Foddering to Alexander Gow father to the said Donald So that it was the height of injustice to make any of the Suspenders Lyable in a Crime for takeing back any of their oun goods As also the Commissioners Committed gross iniquity in Repelling This just defence that the Suspenders did not get a List of the assyssers delyvered to them with the indytment as wes provydit by the act of parliament Sexto as to the said Androw Southerlands fine of Thrie hundred merks It was most unjust Seing their was nothing proven against him bot only that he was present with the said James Sinclar his master And when he was Seeking after the goods Stollen and taken by the said Mcwilliamore from one of James Sinclars tennants as said is Septimo the Decreet and Sentance at the instance of the procurator Fiscall of Caithnes and Donald Gow against the said Alexander Gow his own father and John and Alexander Mcinglasses Declairing them fugatives ought to be Suspendit It being only in absence And the said Alexander Gow John and Alexander Mcinglasses being tennents to the said James Sinclar and dwalling upon his ground They were not lyable to answer to the said Shirriff and Justiciary Court Holden by Hemprigs Because by ane Decreet Arbitrall betwixt the Earle of Broadalbine Shirriff principall and Sinclar of Dumbeath The Earle of Broadalbine In Implement of a former Contract Is Decerned to Delyver to Dumbeath abond wherby the Earle of Oblidges him and his Successors in the Earledome or intrest of Caithnes and Jurisidction of Shirriffship and Justiciary ther That Upon every vaccancie of the saids offices, Whither by death Malversation Or otherwayes to delyver to Dumbeath and his Successors ane deputatione of the saids offices to any persone Dumbeath Shall name, So that Hemprigs not being named by Dumbeath Conforme to the decreet arbitrall, and the Earle of Brodalbiner Obligatione he hade no right to exerce the office of Shirriffshipe Or Justiciary Especially to Conveen or Judge any persone dwalling within Dumbeaths Lands, wherof the Lands belonging to the said James Sinclar are a part and Consequently the forsaid pretended Sentance Declareing the said Alexander Gow John and Alexander Mcinglass and fugatives Ought to be declared null and void And the treuth of the matter is that this hath been caried on by Hemprigs out of Meer Splen and Malice against the Said James Sinclar upon the account that he and the said Alexander Gow and John and Alexander Mcinglasses have raised a Complaint before the saids Lords of privy Councill against Hemprigs for many acts of oppression and injustice Committed by him and as a Convinceing evidence that all this hath been caried on by Hemprigs Against the said James Sinclar and his tennents Immediatly after the forsaid Sentance was Obtained Against the said James Sinclar Alexander Baine and the other persones at whose instance the Sentance was obtained Did assigne the Same to Hemprigs Nephew and sone in Law and would have produced the decreet which would have instructed the forsaids reasones of Suspensione In so farr as wes necessary to have been instructed Bot that the suspenders having Requyred William Sanders Clerk to the Commission to give them ane extract therof He absolutly refussed to doe the Samen as appeared by ane instrument produced As also the forsaid suspenders proponed the forsaid defences before the Commissioners, Which not only the most unjustly repelled Bot Likewayes they Refused to permitt the Clerk to instruct the same in the proces Upon which the Suspenders procurators took instruments in the Clerks hands And when the Suspenders procurators did requyre the said Clerk to give ane extract of the instrument He answered that the Commissioners expressly enjoyned him to give extracts of no instruments taken in face of Court bot of such as were insert in the proces, and they would Suffer nothing to be insert therin Bot what they pleased all which is verified by the forsaid instrument And therfore the forsaid decreet of the Commissioners of Justiciary and the decreet past by Hemprigs as Shirreff and Justiciar depute of Caithnes against the said Alexander Gow John and Alexander Mcinglasses Ought to be Suspendit And the said James Sinclar and Androw Southerland Sett at Libertie and the areistment forsaid ought to be Loused Nevertheless the said suspenders have found Sufficient Cautione acted in the books of privy Councill To make payment to the Chargers of the Soumes charged for Incase it should be found by the saids Lords that they ought so to doe at the dismissing hereof And Anent the Charge given to the fornamed persones. Chargers To have Compeared before the saids Lords at ane Certaine day by past to have brought with them the forsaid two pretended decreets grounds and warrands therof Wherupon the Samen proceeded To have bene Seen and Considered be the saids Lords And to have heard and seen the samen simpliciter Suspended And the Said Suspenders to be relaxed and Sett at Libertie as in the principall Litters of Suspension with the executiones therof more fully is Contained Which Suspension being upon the nynth day of January instant Called in presence of the saids Lords of his majesties privy Councill and petitione for the saids Chargers Being Read and the suspenders Compearing by Sir Patrick Home Mr David Cunninghame and Mr Francis Grant their advocats And the Chargers Compearing by Mr David Dalrymple Sir Patrick Home Mr William Carmicheall Mr David Forbes Mr Robert Frasser and William Black their advocats The saids Lords Declares they will hear both parties and their Lawiers upon the Suspension and Charge upon Thursday come eight dayes being the Eightein day of January Innstant peremptorie without farder delay, And Ordaines both parties and their Lawiers to attend the Councill the day forsaid to that effect And the said suspension being againne called in presence of the saids Lords of his Majesties privy Councill And the Said James Sinclair one of the Suspenders Compearing personally with Sir James Stewart his Majesties advocat Sir Patrick Home his Majesties Solicitor Sir James Cockburne Mr David Cuninghame, Mr James Mckenzie Mr Francis Grant Mr Thomas Weymes and Mr Adam Hepburne advocats for the haill Suspenders, and the said […] Dunbar of Hemprigs one of the saids Chargers Compearing personally with Sir Alexander and Sir Androw Homes Mr David Dalrymple Mr William Calderwood Mr David Forbes Mr John Murray and Mr William Carmicheall and Mr Robert Fraser their advocats The Saids Lords Haveing Considered the Decreet or extract of the proces Charged on And haveing heard both parties Lawiers at full Lenth They have Suspended and hereby Suspends the decreet Charged on Simpliciter upon the said Suspenders in all time comeing.