Decreet, 23 January 1705, Edinburgh

Act, 12 March 1705, Edinburgh

Edinburgh 23d January 1705

D1705/1/161

Decreet

Decreit David McCulloch etc against Bayne of Tulloch

Anent the petition given in and presented to the Lords of her Majesties privie Councill By David MacCullochs Shewing That it is knowen to some of their Lordships number, and evident by the Councill minuts, That their petitioners were obliedged in December last, and the dead of Winter, to the extream hazard of their lives and detriment of their offices and affairs to Come to this place to bear witnes in the proces intented befor their Lordships, at the instance of John Bayne younger of Tulloch, and Sir John Dempster of Pitliver againest the Earle of Seaforth and other Defenders therin named And the Defenders not Compearing then, and consequently no ground to examine them, Their Lordships most justly Ordained the persuers to pay to them what is ordinarly allowed to Witnesses in Such cases, for the twenty two dayes they Spent in comeing and Staying heire, and returning home, But one way and other they so minched their Lordships allowance, that each of them gott but eleven pounds Sixteen Shilling Scots, albeit they could declaire upon oath that besyde horsehyre back and fore and their expense in this place, Fyftie pound Scots did not defray each of their charges, and now, albeit that none of the Defenders (except the Earle of Seaforth) are come to Toun, And that it was nottour to the persuers that they could not be apprehended, and that consequently there was no necessity to obliedge them to leave their offices and affairs at home, and expose themselves to any expense of tyme, travell, or money in comeing a Second tyme to this place, yet by vertue of a charge of horning given the Sherriffe principall of the Shyre of Ross (within which they reside) and his Deput, they were apprehendit by the said Deput, and obliedged either to go to prison, or find Caution under a considerable penalty of money, and to be carried prisoners from Shyre to Shyre To Compear befor their Lordships and bear Witness in the said proces the first Teusday of July, as the Declarations granted by the Sherriffe Depute to them therupon, and the Sherriffs report in the Clerks hands would testifie, where through they have been obleist to repair to this place Second tyme to no purpose, And therby (To the great detriment of their Trusts in their offices as Magistrat, Theasaurer and Collector of the said Burgh, and of their privat affairs) To expose themselves to great expense of tyme, travell and money in comeing and returning Two Hundered and Sixty myles, Besydes three Ferries and severall rivers and waters, and staying heire, and seeing ane instance of the like hard treatment can hardly be given, and that the persuers may at this rate expose them to frequent journeyes, and the greatest hardships, and that this is of dangerous consequences and preparative to the whole Liedges. Therfore Craving the Saids Lords to take the premisses to their Serious consideration, and to dismiss their petitioners, and ordaine them to be no farther troubled or molested in that matter And to modifie large expences to each of them both to make up their losses in the former, and the great charges of this their last journey, and their aboad heire both tymes, And appoynt the same to be payed to them without any defaliations, Else what their Lordships in justice will appoynt, will (as formerly) be made a Shamm and elusory as the said petition bears, Which petition being upon the twentie eighth day of December Jaj vic nynty nyne, read in presence of the saids Lords, They allowed the saids Laird of Tulloch and Pitlyver or their Lawiers and agents to See and answer the same, Therafter the said petition with answers therto being upon the nynth day of January One thousand seven hundereth years, again Considered by the saids Lords They nominated and appoynted the Lord Rankeillor and the Laird of Stevensone to be a Committie to Consider the said petition, And Recommends to them to modifie the expences to be payed to the saids witnesses, and to Consider by whom the samen should be paid, and Recommended to the said Committie to meet any tyme the morrow, and to report with their first conveniency And accordingly the said Committie having conforme to the Remitt made to them for that effect mett upon the eleventh day of January Jaj vic years, They made their report as followes, Patrick Lamb one of the petitioners Compeared befor the Committie, and Declaired he did not insist for his expences, But the Committie finds the Three other Witnesses petitioners did come up with the said Patrick Lamb, and that all of them were Six weeks from their comeing up to their returne having come voluntarly by the Sheriffs order, and the Committie finds there was a petition given in by the Witnesses upon the twentie Sixth day of July Jaj vic and nyntie eighth befor Tulloch gott his Decreit, and the bill is ordained to be Seen and answered, and upon the twenty second day of november therafter Tulloch obtains his Decreit for Fyve Hundereth pound Sterling of Fyne and Damnadges, but there was notice taken of these witnesses above Tulloch contends that having gotten his Decreit, he cannot be now Subject Summarly by bill to answer this petition for expenses, and the Earle of Seaforth Should be Subject and not he, Since the modification of his Damnadges was without respect to their Witnesses, Secundo Tulloch is Content to assigne the witnesses to as much of the fyne already imposed be the Decreit againest the Earle of Seaforth, as the said report bears, Therafter there being ane other petition given to the Saids Lords by the said David MacCulloch late Baillie, Donald Davidson, Thesaurer and Keneth Mackenzie Burgess of the Burgh of Fortross, Shewing That in the ryot persued by John Bain younger of Tulloch, and the Deceast Sir John Dempster of Pitliver, befor their Lordships in the years Jaj vic and nynty Seven and nynty eighth, againest the last deceast Earle of Seaforth, and other Defenders, Their petitioners (and the deceast Patrick Lamb then Collector of the Supply and excise of the said Burgh) were Cited as witnesses, and in obedience to the Citations were obliedged in December Jaj vic nynty Seven years, (in the dead of winter, and to the extream hazard of their lives and detriment of their offices and affairs) To Come to this place, and the Defenders not Compearing then, and there being consequently no occasion to examine them, Their Lordships most justly Ordained the persuers to pay to them what was ordinarly allowed to witnesses in Such cases, For the Twentie two dayes they spent in comeing to and staying in this place and returning home, But the persuers obliedged them to accept of eleven pound Sixtein Shilling Scots, or want altogether, albeit they could Declaire upon oath that besyde horse hyre fore and back, and their expense in this place, Fyftie pound Scots did not defray each of their charges, Fyve or six moneths therafter upon a charge given to the Sherriff principall and Deput of Ross (within whose Jurisdiction they reside) they being obliedged to give bond, under a considerable penaltie to Come a Second tyme to this place, and bear witnes in the said matter, or be convoyed from Shyre to Shyre, they and the said Deceast Patrick Lamb did accordingly come, and in their journey South and North, rode Two Hundered and Sixty miles, besydes passing and repassing three Ferries and severall Rivers, and none of the Defenders Compearing but the Earle of Seaforth, they were detained heire, and Spent in all Six weeks tyme To the great Detriment of their Trust and offces, as Magistrat, Theasaurer, and Collector of the said Burgh and of their privat affairs, They were at length examined, and Dismissed by their Lordships and dureing their stay heire The Said Bain of Tulloch haveing given him the said David MacCulloch Fourtie three pound eight Shilling Scots to help the defraying of his own and neighbours charges, Did take his Bond therfore untill the issue of ther proces, and their Lordships upon advyseing of the lybell and probation having Decerned the said Earle of Seaforth, To pay Fyve Hundereth pound sterling to Tulloch Bayne for the ryott, and all charges of the proces, which was thereafter Secured to Tulloch, but he refuseing to pay to the petitioners what was allowed ordinarly to witnesses, they applyed be petition to their Lordships Representing the above matter of fact, and Craving their Lordships would modifie expenses to them, for their very expensive long, and troublesome journeys first and last, Which being remitted to a Committie, and Tulloch alleadging he had not gott payment of the Fyve hundereth pound Sterling, and it being answered that he had gott Security therfore, The Committie by their report written and Subscrybed on the end of their petition, Found there were expenses for Six weeks due to them, and that Tulloch Should assigne to them So much of the Security he gott for the fyve hundereth pound sterling as would pay the saids expences as appears by the said petition and report heirwith produced, They living at a considerable distance, and justly fearing that their expences in Seeking the Saids expences would exceed what they could gett, have never moved in the said matter Since that tyme, untill now that albeit Tulloch had gott payment of, or transacted the Fyve Hundereth pound, and actually transacted with, and payed the said Patrick Lamb, as appears by the report, yet he not only refuses to pay them the expences, but also most unjustly assigned the forsaid bond granted by him the said David MacCulloch for the forsaid Fourtie three pound eight Shilling Scots, which he gave him to defray a pairt of his own and Neighbours expences, and took his Bond untill the issue of the proces as said is, to his Brother german, who had charged him with horning for payment, Therfore Craveing it might please their Lordships to take the premisses, with their former petition and report theron to consideration, and conforme therto Ordaine the said Bayne of Tulloch To make payment to them, of the forsaids expences for six weeks, and what further their Lordships should find just, for the great expensses and trouble they were exposed to both in the winter journey they made, and in seeking of the saids expences now and formerly by petitions and otherwayes, as the said petition bears Which petition being upon the eighteenth day of January instant read in presence of the saids Lords They appoynted and ordained the Samen to be intimate to John Bain younger of Tulloch, or to his advocats Factors and Agents by ane Nottar and Witnesses as effeirs, that the samen may be seen and answered nixt Councill day, Which petition being upon the day and date of their presents read in presence of the saids Lords with ane Instrument of Intimation to Baine of Tulloch advocats and agents, The saids Lords Doe heirby appoynt and Ordaine John Bain younger of Tulloch to content and pay to the petitioners each of them, the soume of Sixteen Shilling Scots money being horsemen for each day for the space of six weeks from their comeing up to their return, Extending in haill to each of the saids persons to the Soume of Threttie three pounds twelve Shilling, and appoynts and Ordaines the said Bain of Tulloch to make payment therof accordingly And appoynts letters of horning under the Signet of Councill upon six dayes to be direct heirupon.

Edinburgh 23d January 1705

D1705/1/161

Decreet

Decreit David McCulloch etc against Bayne of Tulloch

Anent the petition given in and presented to the Lords of her Majesties privie Councill By David MacCullochs Shewing That it is knowen to some of their Lordships number, and evident by the Councill minuts, That their petitioners were obliedged in December last, and the dead of Winter, to the extream hazard of their lives and detriment of their offices and affairs to Come to this place to bear witnes in the proces intented befor their Lordships, at the instance of John Bayne younger of Tulloch, and Sir John Dempster of Pitliver againest the Earle of Seaforth and other Defenders therin named And the Defenders not Compearing then, and consequently no ground to examine them, Their Lordships most justly Ordained the persuers to pay to them what is ordinarly allowed to Witnesses in Such cases, for the twenty two dayes they Spent in comeing and Staying heire, and returning home, But one way and other they so minched their Lordships allowance, that each of them gott but eleven pounds Sixteen Shilling Scots, albeit they could declaire upon oath that besyde horsehyre back and fore and their expense in this place, Fyftie pound Scots did not defray each of their charges, and now, albeit that none of the Defenders (except the Earle of Seaforth) are come to Toun, And that it was nottour to the persuers that they could not be apprehended, and that consequently there was no necessity to obliedge them to leave their offices and affairs at home, and expose themselves to any expense of tyme, travell, or money in comeing a Second tyme to this place, yet by vertue of a charge of horning given the Sherriffe principall of the Shyre of Ross (within which they reside) and his Deput, they were apprehendit by the said Deput, and obliedged either to go to prison, or find Caution under a considerable penalty of money, and to be carried prisoners from Shyre to Shyre To Compear befor their Lordships and bear Witness in the said proces the first Teusday of July, as the Declarations granted by the Sherriffe Depute to them therupon, and the Sherriffs report in the Clerks hands would testifie, where through they have been obleist to repair to this place Second tyme to no purpose, And therby (To the great detriment of their Trusts in their offices as Magistrat, Theasaurer and Collector of the said Burgh, and of their privat affairs) To expose themselves to great expense of tyme, travell and money in comeing and returning Two Hundered and Sixty myles, Besydes three Ferries and severall rivers and waters, and staying heire, and seeing ane instance of the like hard treatment can hardly be given, and that the persuers may at this rate expose them to frequent journeyes, and the greatest hardships, and that this is of dangerous consequences and preparative to the whole Liedges. Therfore Craving the Saids Lords to take the premisses to their Serious consideration, and to dismiss their petitioners, and ordaine them to be no farther troubled or molested in that matter And to modifie large expences to each of them both to make up their losses in the former, and the great charges of this their last journey, and their aboad heire both tymes, And appoynt the same to be payed to them without any defaliations, Else what their Lordships in justice will appoynt, will (as formerly) be made a Shamm and elusory as the said petition bears, Which petition being upon the twentie eighth day of December Jaj vic nynty nyne, read in presence of the saids Lords, They allowed the saids Laird of Tulloch and Pitlyver or their Lawiers and agents to See and answer the same, Therafter the said petition with answers therto being upon the nynth day of January One thousand seven hundereth years, again Considered by the saids Lords They nominated and appoynted the Lord Rankeillor and the Laird of Stevensone to be a Committie to Consider the said petition, And Recommends to them to modifie the expences to be payed to the saids witnesses, and to Consider by whom the samen should be paid, and Recommended to the said Committie to meet any tyme the morrow, and to report with their first conveniency And accordingly the said Committie having conforme to the Remitt made to them for that effect mett upon the eleventh day of January Jaj vic years, They made their report as followes, Patrick Lamb one of the petitioners Compeared befor the Committie, and Declaired he did not insist for his expences, But the Committie finds the Three other Witnesses petitioners did come up with the said Patrick Lamb, and that all of them were Six weeks from their comeing up to their returne having come voluntarly by the Sheriffs order, and the Committie finds there was a petition given in by the Witnesses upon the twentie Sixth day of July Jaj vic and nyntie eighth befor Tulloch gott his Decreit, and the bill is ordained to be Seen and answered, and upon the twenty second day of november therafter Tulloch obtains his Decreit for Fyve Hundereth pound Sterling of Fyne and Damnadges, but there was notice taken of these witnesses above Tulloch contends that having gotten his Decreit, he cannot be now Subject Summarly by bill to answer this petition for expenses, and the Earle of Seaforth Should be Subject and not he, Since the modification of his Damnadges was without respect to their Witnesses, Secundo Tulloch is Content to assigne the witnesses to as much of the fyne already imposed be the Decreit againest the Earle of Seaforth, as the said report bears, Therafter there being ane other petition given to the Saids Lords by the said David MacCulloch late Baillie, Donald Davidson, Thesaurer and Keneth Mackenzie Burgess of the Burgh of Fortross, Shewing That in the ryot persued by John Bain younger of Tulloch, and the Deceast Sir John Dempster of Pitliver, befor their Lordships in the years Jaj vic and nynty Seven and nynty eighth, againest the last deceast Earle of Seaforth, and other Defenders, Their petitioners (and the deceast Patrick Lamb then Collector of the Supply and excise of the said Burgh) were Cited as witnesses, and in obedience to the Citations were obliedged in December Jaj vic nynty Seven years, (in the dead of winter, and to the extream hazard of their lives and detriment of their offices and affairs) To Come to this place, and the Defenders not Compearing then, and there being consequently no occasion to examine them, Their Lordships most justly Ordained the persuers to pay to them what was ordinarly allowed to witnesses in Such cases, For the Twentie two dayes they spent in comeing to and staying in this place and returning home, But the persuers obliedged them to accept of eleven pound Sixtein Shilling Scots, or want altogether, albeit they could Declaire upon oath that besyde horse hyre fore and back, and their expense in this place, Fyftie pound Scots did not defray each of their charges, Fyve or six moneths therafter upon a charge given to the Sherriff principall and Deput of Ross (within whose Jurisdiction they reside) they being obliedged to give bond, under a considerable penaltie to Come a Second tyme to this place, and bear witnes in the said matter, or be convoyed from Shyre to Shyre, they and the said Deceast Patrick Lamb did accordingly come, and in their journey South and North, rode Two Hundered and Sixty miles, besydes passing and repassing three Ferries and severall Rivers, and none of the Defenders Compearing but the Earle of Seaforth, they were detained heire, and Spent in all Six weeks tyme To the great Detriment of their Trust and offces, as Magistrat, Theasaurer, and Collector of the said Burgh and of their privat affairs, They were at length examined, and Dismissed by their Lordships and dureing their stay heire The Said Bain of Tulloch haveing given him the said David MacCulloch Fourtie three pound eight Shilling Scots to help the defraying of his own and neighbours charges, Did take his Bond therfore untill the issue of ther proces, and their Lordships upon advyseing of the lybell and probation having Decerned the said Earle of Seaforth, To pay Fyve Hundereth pound sterling to Tulloch Bayne for the ryott, and all charges of the proces, which was thereafter Secured to Tulloch, but he refuseing to pay to the petitioners what was allowed ordinarly to witnesses, they applyed be petition to their Lordships Representing the above matter of fact, and Craving their Lordships would modifie expenses to them, for their very expensive long, and troublesome journeys first and last, Which being remitted to a Committie, and Tulloch alleadging he had not gott payment of the Fyve hundereth pound Sterling, and it being answered that he had gott Security therfore, The Committie by their report written and Subscrybed on the end of their petition, Found there were expenses for Six weeks due to them, and that Tulloch Should assigne to them So much of the Security he gott for the fyve hundereth pound sterling as would pay the saids expences as appears by the said petition and report heirwith produced, They living at a considerable distance, and justly fearing that their expences in Seeking the Saids expences would exceed what they could gett, have never moved in the said matter Since that tyme, untill now that albeit Tulloch had gott payment of, or transacted the Fyve Hundereth pound, and actually transacted with, and payed the said Patrick Lamb, as appears by the report, yet he not only refuses to pay them the expences, but also most unjustly assigned the forsaid bond granted by him the said David MacCulloch for the forsaid Fourtie three pound eight Shilling Scots, which he gave him to defray a pairt of his own and Neighbours expences, and took his Bond untill the issue of the proces as said is, to his Brother german, who had charged him with horning for payment, Therfore Craveing it might please their Lordships to take the premisses, with their former petition and report theron to consideration, and conforme therto Ordaine the said Bayne of Tulloch To make payment to them, of the forsaids expences for six weeks, and what further their Lordships should find just, for the great expensses and trouble they were exposed to both in the winter journey they made, and in seeking of the saids expences now and formerly by petitions and otherwayes, as the said petition bears Which petition being upon the eighteenth day of January instant read in presence of the saids Lords They appoynted and ordained the Samen to be intimate to John Bain younger of Tulloch, or to his advocats Factors and Agents by ane Nottar and Witnesses as effeirs, that the samen may be seen and answered nixt Councill day, Which petition being upon the day and date of their presents read in presence of the saids Lords with ane Instrument of Intimation to Baine of Tulloch advocats and agents, The saids Lords Doe heirby appoynt and Ordaine John Bain younger of Tulloch to content and pay to the petitioners each of them, the soume of Sixteen Shilling Scots money being horsemen for each day for the space of six weeks from their comeing up to their return, Extending in haill to each of the saids persons to the Soume of Threttie three pounds twelve Shilling, and appoynts and Ordaines the said Bain of Tulloch to make payment therof accordingly And appoynts letters of horning under the Signet of Councill upon six dayes to be direct heirupon.

1. NRS, PC2/28, 358r-360v.

1. NRS, PC2/28, 358r-360v.