Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the twentie third of Jwny J^aj vi^c nyntie Six yeirs

D1696/6/17

D1696/6/17¹

Decreet

Decreit Sinclair of Brymes against Sinclair of Asserie

Anent the lybell or Letters of complaint raised and persewed befor the Lords of his majesties privie Counsell at the instance of George Sinclair of Asserie and John Sinclair his brother with concurse of Sir James Stewart his majesties advocat for his highnes interest in the mater underwrittin Makeing Mention That albeit by severall acts of parliament and by the wniversall practise of this and all other well governed nationes the illegall invadeing of any persones right and possessione or disturbeing them of ther right and propertie by open violence bangastrie and armed force Are crymes of ane high nature and severely pwnishable Especiallie wher the same are Done and comitted upon the Saboth Day And efter other Letters of Law borrowes were Duely raised and execute against them at the instance of those against whom those violences ryots and Deeds of oppressione were committed Nevertheles It is of Veritie that John Sinclair of Brymes Donald Hendersone and Hector Monro his servants William Campbell alias Begg Alexander and Murdoch Campbells his sones James Sinclair naturall brother to the said John Sinclair of Brimes have presumed to comitt and are gwiltie of the foirsaids crymes in soe far as the saids Couples having receaved severall wrongs and injuries from the said John Sinclair of Brymes and his saids servants And haveing for ther securitie and for preventing such oppressiones and injuries for the future raised Letters of Lauburrows against them and cawsed Donald Durhame messenger Duely execute the Same against them upon the fourtein Day of May J^aj vi^c and nyntie two yeirs befor Donald Gwn and John Thomsone as wittnesses The Said Hector Monro and Donald Calldell Did upon the Saboth Day imediatly following Come in a most barbarows and crwell maner All armed with Swords gwns and Durks to the duelling house of the said John Sinclair complainer in Forsay wher he was readeing the Scripture to his familie And the said Messenger and wittnesses being ther occasionallie present in that house The Said Donald Hendersone and Hector Monro did draw out ther Durks and threatned with many a bloodie oath to kill and murder the said John Sinclaire complainer the messenger and wittnesses for haveing execute the Lauburrowes against them and the said John Sinclaire of Brymes ther maister and would wndoubtedly have executed ther designed murder against them In caice by providence Some other good people had not come and rescwered them out of ther bloodie hands Likeas the said Donald Durhame messenger being Some weeks therefter in the towne of Thurso James Innes then servitor to the said John Sinclaire of Brymes did in Brymes own presence fall wpon the messenger and gave him many Stroke to the great effwsione of his blood And the said James Innes and James Sinclaire naturall brother to Brymes did persue and follow the said Donald Durhame a considerable way owt of Designe to have killed him dead and imediatly returned back to Brymes who receaved them kindly and approved of the villany Done by them to the messinger as afoirsaid And which villany was undoubtedly perpetrat by the comand and outhunding of the said John Sinclaire of Brymes he haveing formerly threatned and boasted that the said messenger and wittness Should gett sore bones and not know by whom for offering to execute Laborrowes against him and being wittnesses therto And within Some dayes therefter the said Donald Hendersone did fall upon John Thomsone one of the wittnesses and beatt him to the ground with the great roller of ane firlot untill he was nether able to stand nor goe But was taken efter he had wallowed neer ane houre in his own blood and caryed him to his own house wher he Langwished of his Saids wounds and brwises for many moneths ther efter And the said Donald Hendersone haveing Some dayes therefter mett with Donald Gwn the other wittnes to the executione of Laborrows upon the said Street of Thurso He did beatt him So violently with ane hwge bigg trie that he was caried home wher he langwished of his saids wounds and brwises untill his death Lykeas upon the first day of August Last by past the said John Sinclaire Complainer haveing sent William Douglas and Agnws Mcdonald his own two servants with his horses to bring home his own peatts to his own house of Asserie wher he now Duells The Saids John Sinclair of Brymes and Donald Hendersone his servant did crwelly fall upon them and beatt them to the ground giveing them many a bloodie and blae strocks with great battones to the great effusione of ther blood and hazard of ther Lives And the Said John Sinclaire haveing upon the heareing of the hideows cryes of his servants come furth The saids John Sinclaire and Donald Hendersone did most crwelly fall upon him and gave him many Stroaks with ther saids battones and plwked out the most pairt of the haire of his head And Bessie Craig Spouse to the said John Sinclaire haveing come out to releeve her husband the saids John Sinclaire and Donald Hendersone did most crwelly and barbarousely fall upon her and beatt her not only to the great effusione of her blood But even to that extremitie that she hath never Since bein able to goe abroad but hath ever Since Langwished and yet continwes Langwishing by the crwell Stroaks wounds and brwises given by them to her in maner forsaid As also the saids William Campbell alias Bigg Alexander and Murdoch Campbells and James Sinclaire hes notwithstanding the said Labarrowes yeirly and Daylie Since openly both pastured eats and Distroyes the said complainers grass and cornes casts peatts turves and diviots on his ground to his great enorme Lasione and hurt without any order of Law or Justice By Doeing of all which the persones above comaplained upon are gwiltie of the breatch and contravention of Lawborrowes and other crymes above written as actors atleast as airt and pairt of the Same and for which they ought and Should be Severly pwnished in their persones and goods to the example and terror of others to Doe the Like in tyme comeing And anent the charge given to the saids defenders to have compeared personallie befor the saids Lords of our privie Counsell at ane certain day now bypast to have ansuered to the grounds of the above written complaint and to have heards and sein such order and course taken theranent as the saids Lords Should think fitt under the paine of rebellion etc As in the principall Lybell or Letters of complaint raised in the said mater and executiones therof at more lenth is contained And Sicklyke anent the Letters of reconvention intented and persued befor the saids Lords of privie Counsell at the instance of the said John Sinclaire of Brymes with concurse of the said Sir James Stewart his majesties advocat for his hignes interest in the mater wnder written Makeing Mentione That albeit by the ² severall acts of parliament and by the wniversall Law and practicqe of this realme als well as of all other well governed nationes the illegall disturbing and molesting men in ther rights propperties and possessions not only by all maner of Clandestine deeds But Likewayes by Doune right open violence outrageows and armed force be crymes of ane Heinows nature and Severly pwnishable especially wher the Same are comitted efter other Letters of Lawborrowes Duely execut against them at the instance of those against whom the Deeds and violences are comitted And albeit by the constant Law and practicq of this and all other well governed nations the vexing or disqwieting of the Leidges by raiseing groundles or defamatory lybells against them Especiallie when the Same is Done out of a meer malitious and revengefull humor and with no other designe then to defame ther reputatione and good name and to putt them to vast charges and expensses als well as to divert them from following ther Laufull affairs Be crymes severely pwnishable Nevertheles it is of veritie that George Sinclaire of Asserie Isobell Sinclaire his Spouse John Sinclaire his brother Bessie Craigy his Spouse William Miller and Angus Mcculveran ther Sevants Jennet Mckindley and […] Mccullbarran ther maid servant Have comitted and are gwiltie of the cryms abovementioned In so far as the said John Sinclaire of Brymes complainer haveing acquyred from the Earle of Breadalbine among Severall wther Lands in Caithnes a right of reversion of the Lands of Forsie etc wherof the said George Sinclaire was wodsetter And ther haveing bein ane order of redemption wsed against the said George Sinclaire at The Earle of Breadalbines instance wherby he finding that he must therupon needs take his money and qwite his said wodsett right he did enter into ane voluntar agriement with the said John Sinclar complainer who had right to the reversione as said is And for payment of the Soume of Four Hundereth merks of a gratwitie besydes the Soumes contained in the wodsett he did voluntarly and Judiciallie in presence of the Shirreff Deput of Caithnes cede the possessione in favors of the said John Sinclaire complainer who was imediatly by ane decreit of court legallie and peaceably possest of the saids Lands Notwithstanding of all which the said George Sinclaire hes ever Since conceaved and intertained ane deedly feed and malice at the said complainer for bwying of the said right of reversione of his Lands as he pretends And hath ever Since Still Studied by all possible means to revenge himself upon the said complainer and to disturb him in his propertie and possessione of the saids Lands wherby the said John Sinclaire complainer was necessitat to raise other Letters of Lawburrows against the said George Sinclaire and John Sinclair his brother who Stayes and resides of purpose neer the Saids Lands that he may have the better opportwnitie of disqwieting the said complainer in his possessione therof and caused Gilbert Omand messenger duely execute the saids Letters against them upon the fourtein day of Jullie J^aj vi^c nyntie two yeirs But as nothing can restraine the said George and John Sinclaires ther malice so true it is that upon the twentie fourth or twentie fifth dayes of Janwary J^aj vi^c nyntie two yeirs or ane or other of the Dayes or moneths of the sad yeir the said John Sinclaire of Brymes complainer haveing sent Donald Hendersone tenent in Leweratrie and Hector Monro tennent in Brymes to the mylne of the Saids Lands of Forse wherof the Said wherof the Said³ John Sinclaire was also in the peaceable possessione as said is to bring home Some meall which he had lyeing in the said mylne the said George Sinclaire Did hound out Isobell Sinclaire his Spouse with a great moab of woemen armed with tries forks flanks staffs or other Such like instruments and Did most outragiowsely fall upon the said Hector Monro and Donald Hendersone and did beatt and abwse them and Stryke them Downe to the grownd and rive owt and tear the hair of the ther heads in a most barbarows and crwell maner Likeas upon the twentie fifth twentie Sicth or twentie Seventh Dayes of Jully Last by past or upon and or other of the dayes of the Said moneth the Said John Sinclaire of Brymes haveing gone accompanyed only with and Single footmen to ane towne of his own called Lurrary to visite a waist house which he had ther and haveing taken alongs with him from thence the Said Donald Hendersone they went to gither accompanyed onlie as said is to the foirsaid towne of Forsie to Sie Some Hay which was wmung ther But as they came by the said John Sinclaire his duelling house at Asserie they were mett with by William Miller and Angus Mcullburran two of the saids John and George Sinclaire ther Servants with five or Six horses under Diviots and being enquyred from whence they had brought these Divotts they Did most boldly ansuer that the Diviots belonged to One Donald Moor in Forse who was one of Brymes tennents And the Said Donald Hendersone haveing requyred them to bring back the saids Diviots to the place whence they had caryed them The Saids two Servants did not only refwse so to Doe But Likewayes the said John Sinclaire ther maister Bessie Craigy his Spouse Elizabeth Swmm her Neice Jennet Mckinley ther woeman Servant […] Mcculbarran Sister to the Said William Mccullbarran with a whole mob of woemen kept by them on purpose for Swch occasiones who rwshed on a Sudden out of the said house of Asserie Did togither with the saids tuo men Servants fall most fwriowsely upon the said Donald Hendersone and throw him Downe to the ground most crwelly tear and rive out the hair of his head And haveing most barbarouslie beatten him with rwngs and Staffs or Such lyke instruments they Did soe press upon the said Donald lying wpon his face and breast that they had certainly Stopt his breth and pressed him to death in a most crwell and barbarows maner had not the said John Sinclaire of Brymes complainer come and rescwed him out of ther bloodie hands which he Did by a lighting from his horse and by gently pulling them from above the Said Donald And without So much as wseing the Least offensive word or actione towards any of them And imediatly therefter he did civilly intreat the said John Sinclaire Assaries brother to goe along with him and Sie the injurie Done him by his Servants in casting Divotts upon his grownd and carying the Same away which the said John Sinclaire did most indiscreitly refwise to doe or to give him the least Satisfactione therfore And the said George Sinclaire of Assarie and John Sinclaire his brother not being contented with those and Such like dayly oppressiones and ryots Comitted against the Said complainer and his tenents and Servants they have also raised a most Scandalows and malitiows lybell against him and the said Donald Hendersone and Hector Monro his servant which lybell is altogither stuffed with Lies and callumnies most falselie alleadgeing that the saids Donald Hendersone and Hector Monro did upon the Sabath Day next and imediatly following the executeing of Letters of Lawborrows against them goe to the said John Sinclaire his duelling house and attempted to murder him when he was readeing the Scriptures to his familie And that they had certainly murdered him with the messenger and wittnesses had they not bein rescwed out of ther hands which ridiculous and fabwlous Storie may easielie appear to the Lords of our privie Counsell false and feigned by considering how improbable it is that two Single men armed only with a sword or Dwrk Should attempt a Strong tenable house in which ther was So many men and woemen as the lybell acknowledges viz the said John Sinclaire himself and his two Servants with the messenger and the two wittnesses besyde the said John Sinclairs wyfe with her moab of woemen which She kept allwayes with her Like a company of amazons to hownd them out upon all occasiones against the said complainer and his tennents And albeit ther had bein any trweth in this Storie as ther is not yet the said John Sinclaire of Brymes complainer is nowayes concerned therin the said Donald Hendersone being a principall pairtie in the Lawborrowes and nether of them being of Brymes hunding out resett or ratihabitatione And as to that pairt of the said lybell alleadgeing that about a few weeks therefter James Sinclaire brother to John Sinclaire of Brymes complainer and James Innes Servitor to him Did Stryke and beat the said messenger As therefter the said Donald Hendersone did Strike and beat the two wittnesses (as is alleadged) to the great effwsione of the blood As the saids relationes are in themselvs false and callummows so the saids John Sinclaire does conceave the Same to inferr nothing against him in respect the Said alleadged beatting of the messenger was nothing but one Drunken Scwffle which fell out at Thurso betuixt the saids pairties all of them haveing bein Drunk at the tyme and which fell out thrie or four moneths efter the executeing of the Lawborrows and upon examinatione will be found but one Downe right Drunken twillzea to which the said John Sinclaire had no accessione aither befor or efter nether had he any accessione to or knouledge of the foirsaid twillzie betuixt Donald Hendersone and the wittnesses nor is he anywayes concerned therin the said Donald Hendersone himself being ane principall pairtie in the Lawborrows And as to the Last pairt of the said lybell anent the beatting of the said John Sinclairs Servants when they were Leading ther maisters peitts and the Daylie Distroying the said complainers grass and corne it will easielie appear to the saids Lords of our privie Counsell that the said John Sinclaire hath Douneright inverted the trweth of his Storie And framed the Same to his own malitiows designes inso farr as the Saids peitts alleadged belonging to Assarie or his brother will be found to have bein Divotts cast upon the grownd of Brymes Lands in Forsie and most theiftteowsely caryed away by Assaries Servants in maner aboveuritten And that the Said Donald Hendersone and not Assaries servants receaved the Stroaks and wrongs lybelled Lykeas the said John Sinclaire does daylie Hownd out his tennents Servants coatters with ther cattell and his own to eate cutt and Distroy the grass and cornes of the said towne of Forsie and other townes and Lawes belonging to him And Doe by all meanes possible disturb Disqwiet and molest the said John Sinclaire of Brymes in his proppertie and possessione of the Saids Lands By Comitting of all which it is evident to the saids Lords of our privie Counsell that the persones above complained upon are gwiltie as principall actors of the contraventione of Lawbarrowes and other crymes above mentioned or that they are airt and pairt therin atleast that the foirnamed persones are gwiltie of raiseing a most defamatorie and malitiows lybell against the said John Sinclaire the injureing of his reputatione and to the putting him to great and wnnecessary expensses besydes the Loss of his tyme and neglect of his affairs at home And therfor they ought and Should be decerned to make payment to the said John Sinclaire of Brymes complainer of the Soume of […] As liqwidat expensses and Damnadges Sustained be him through the said malitiows perswte and be pwnished by the saids Lords by and attour in ther persons and goods to the example and terror of others to comitt the like in tyme comeing And anent the charge given to the saids defenders to have compeared personally befor the saids Lords of our privie Counsell at ane certaine Day now bypast to have ansuered to the grounds of the above written complaint and to have heard and Sein Such order and course taken theranent as the saids Lords Should think fitt under the paine of rebellione As in the principall Letters of complaint raised in the said mater and executiones therof at more lenth is contained Both which lybells principall and reconvention being upon the fourtein day of Janwary Last bypast called in presence of the saids Lords of privie Counsell And the persewers of the principall lybell compeareing personallie And John Sinclaire of Brymes compeareing also personally And the rest of the defenders in the principall lybell being oft tymes called and not compeareing And Sir James Ogilvie and Mr Robert Monro Compeareing as advocats for them And the haill defenders in the reconventione compeareing also⁴ personallie except Angws Mcillbarran The advocats for the absent Defenders in the principall cause produced discharges be the persewer of the principall cause to some of these defenders not compeareing And for the rest of them alleadged no certificatione can be granted against them because they were never cited but gott informall coppies which they produced not Summonding any persone by name or to any Day The principall lybell and ansuers therto being read and the lybell of reconventione being also read and both pairties and ther Lawiers foirsaids being fully heard The Saids Lords refwses to grant certificatione against any of the Defenders in the principall lybell in respect John Sinclaire of Brymes is compeareing and the rest of these defenders are either discharged by the persewer or are not formallie cited and refwses to allow any probatione to be addwced against any of the foirsaids defenders except John Sinclaire of Brymes allenarly And admitts the said principall lybell to probatione in maner foirsaid And the said Lybell of reconventione to the perseuer therof his probatione And the wittnesses cited upon both lybells haveing appeared and made faith The Counsell appointed a Committie for examineing the Saids wittnesses and appointed them to be examined upon the principall lybell inso farr as they can testifie against The Laird of Brymes only And the said Comittie haveing accordingly diverse and Sundrie famows wittnesses who being all Solemnly Sworne and examined Deponed and declaired As ther oathes and depositions extant in process bears And the saids Lords of his majesties privie Counsell haveing upon the twentie one of Janwary Last bypast Considered the Deposiitones of the wittnesses Led upon the principall lybell at the instance of Sinclaire of Asserie against Sinclaire of Brymes They fownd nothing proven against him And therfor assoillzed the haill points and articles of the above principall lybell and declaired him qwite therof and frie therfrae in all tyme comeing And the saids Lords of privie Counsell haveing upon the eightein of Februrary Last bypast Considered the Depositiones of the wittnesses adduced in the foirsaid reconventione they recomend to the Comittie formerly appointed in this mater to consider and informe themselvs anent the estates and conditiones of the saids defenders and what penaltie and expensses will be competent to be Decerned to be payed by them to the persewer and by what proportiones Conforme wherto The Comittie haveing mett and considered the points referred to them they gave in ther report to the Counsell And the saids Lords of his majesties privie Counsell haveing this day considered the depositiones of the wittnesses adduced upon the said lybell of reconventione with the Comitties report anent the points referred to them They find the contraventione of Lawborrows Sufficiently proven against the said George Sinclaire of Assarie as lyable for Isobell Sinclaire his wife And against John Sinclaire his brother for himself and as lyable for Bessie Cragie his wife and Servants and against two of Assaries Servants and in respect Assarie is bwt a liferenter and a mean man Therfore They have modified and heirby modifie the Soume of Thrie Hundereth merks Scotts of penaltie and expensses to be payed be the said George Sinclaire of Assarie to the said John Sinclaire of Brymes And have modified and heirby modifies the Soume of Ane hundereth merks for the penaltie and expensses of the said John Sinclair who is in mean conditione and not a Landed man And Decerns and ordaines the haill four hundereth merks Scotts to be payed to the said John Sinclaire of Brymes in Satisfactione of the penalties for breach of Lauborrows and expensses of the process of reconvention at his instance against the said George Sinclaire of Assarie his brother and others foirsaids And Decerns and ordaines the said John Sinclaire of Brymes to make payment of the expensses of the wittnesses adduced by him in his proess of reconventione out of the first end of the Four Hundereth merks and ordains Letters of horning under the Signet of privie Counsell on fiftein dayes and other needfull to pass heiron in forme as effeirs