Decreet, 23 November 1699, Edinburgh

Warrant, 21 December 1699, Edinburgh

Att Edinburgh the Twentie third day of November Jaj vic Nyntie Nyne

D1699/11/151

Decreet

Decreet The Lairds of Boggie Against Mr Robert Whyt of Bennochie

Anent the Lybell or Letters of Complaint purchased and praised before the Lords of his majesties privie Councill at the instances of of2 John Weymes of Bogie his father and Sir Archibald Hope of Rankeillor one of the Senators of the Collodge of Justice with concourse of Sir James Stewart his majesties advocat for his highnes intrest in the matter underwrittin Makeing Mentione That wherby the Lawes of this and all other weell governed nationes the applying to the Justices of peace of ane other presbytrie after that the matter underwrittin in debate was tabled before the Justices of peace of another presbytrie, and for the saids Justices to Sustain themselves Judges without Lawfull Citation of all parties haveing intrest, and the adjudgeing of any mans Lands to belong to another wher they were not within the termes of the act of parliament Jaj vic sixtie and Jaj vic Sixtie Nyne, And the stopping of high wayes and Ordaineing new wayes in Law therof and the debarring of any man from the use of his oun burn which is the only place of wattering as also the determineing ane under value of any mans ground, Be all crymes of ane high nature and severly punishable, Yet Nevertheless it is of verity That Mr Robert Whyt of Bannochrie Alexander Melvill of Mordairne Robert Hay of Stowie and James Balcanquell of that ilk there of the Justices of peace within the Shire of Fyfe in manifast Contempt of the forsaids Lawes and acts of parliament Haveing without any Shaddow of Law taken upon them at their oun hands to sett of apeace of the saids Lands of Bogie belonging in property and lifrent to the saids pursuers And to decerne and adjudge the Same to belong to the said Mr Robert Whyte of Bannochie Impowring him to dyke in and inclose the Same to his Other adjacent Lands and to close the same to the park dyke of Bogie on the East and therby not only took off the propertie of the forsaid piece of ground Bot also did therby debarr him from the use of the burne which was the only place of wattering both in time of Dought and Storme As also did nitt off and interup the Comon high way which the heritors of Boggie and their tennants have hade past memory through the forsaid ground to the Church of Abbothall, Which is their paroch Church and to the kirk and burgh of Kirkaldie wher the pursuers also have intrest leading throw the Lands of Bannochie and appointing the heritors of Boggie and other tennents and possessors of these Lands to have any way upon the west side of the stone park of Boggie a way uneasie and Impassible, and to keep the forme and Collour of Law Decerned the said Robert Whyte of Bannochie to make payment of Twentie merks only as the value of the said peice ground, which decreet is null and nothing but a plain act of oppression and injustice primo Because the forsaid Justices of peace of the presbytrie who could have best understood and Judged the value of the ground and of the Commodities and incommodities that might follow to the forsaids parties Likeas the saids Justices were prevented by a former intimatione made to Bannochie of before that the Nighbouring Justices of peace of the presbytrie were to meett Cognose and determine upon the forsaid ground and marches therof and of the Conveniencie and inconveniencie which were to be Considered by them that either party hade to plead before them so that the said packt meeting of these the saids thrie Justices of peace was most Illegall and unwarrantable and tending only to vex the said pursuers who hade first applyed to the ordinary Justices of peace for their dyet which they appointed on the seventeinth therin3 instant And ther pretended ded was given on the sixteinth before Secundo the forsaid Decreet was intrinsically null and Cannot palliat4 partiallity and oppressione In so farr as the Samen is without any Citatione given to the saids pursuers, The said Lord Rankeillor and James Weymes of Boggie for their interests of lyfrent, and Citation given to Boggie ther was only two or thrie houres before the sitting down of the Court upon the ground of the Lands which was most gross Illegally and unwarrantable Especially in a case That Toutcheth mens properties Tertio the said Mr Robert Whyt of Bennochie could nowayes pretend to be in the case of the act of parliament, Seing before and all allongs the ground taken from the pursuers Bannochie at his own hand Built a new dyke which was Straight and haveing made his electione So he could not recurr to or pretend any favor upon the forsaid act anent the incloseing Quarto So unjust and arbitrary were the saids thrie Justices That they proceeded and debarred Boggie from the right of his high way Leading to his paroch Church without ever visiting the other high way to the west of the Ston dyke of the park how that the same was Impossible, Or without ever Considering whither the distance was within two hundred ells Contained in the act of parliament And without Considering the Loss of Laying on the same high-way upon Boggies Lands which was formerly threw Bannochies Land and without any repairation for that Loss or Consideratione of the Charge and expensses that it will take to make and force the said high way to be a passible way and without any Consideration of damnadges done to Boggie by takeing away the benefite of the Burne which is the only place for wattering of his goods, and the goods of his tennants in the time of drought and Storme, And altho Bennachie could have been served with watter for Litle or no charge on the other Side of his dyke by digging not above ane ell or siz quarters deep under the Levell of the said Burne By all which it is evident that the saids Justices of peace have Committed gross and palpable iniquity and Misdemeinour in their offices as Justice of peace And under the Collour of Law greatly oppressed the pursuers, And therfore the saids Justices Ought not only to be deprived of their offices and the said Mr Robert Whyt of Bennochie as actor abaiter and airt and part of the said unwarrantable Contrivance being ane advocat and pretending to understand Law, They and he ought to be Condignly punished in their persones and goods to the terror of others to Committ the Like in time comeing And Anent the charge given to the haill fornamed persones defenders To have Compeared personally before the saids Lords of his majesties privy Councill at ane Certaine day now bygone To have answered to the said Complaint and to hear and see such order and Course taken theranent as appertaines as in the principall lybell or Letters of Complaint raised in the said matter with the executions therof at more Lenth is Contained, The said lybell being upon the nynth day of november instant called in presence of the saids Lords of his majesties privy Councill And the said James of Boggie and the Lord Rankeillor Compearing personally as two of the pursuers, And the above James Weymes elder of Boggie the thrid pursuer being oft times called and not Compearing And the Lord Advocat Sir Walter Pringle, Sir Alexander Home Mr David Dalrymple and Mr Thomas Weymes Compearing as advocats for the haill pursuers And the above haill defenders Compearing all personally with Mr David Cuninghame their advocat, The lybell and answers made therto fore the defenders being read, And the said Mr Robert Whyte one of the defenders being called in, and haveing appeared at the Councill Barr acknowledged that the answers read were given in by him and the other defenders The saids Lords appointed the saids Mr Robert Whyt to be caried to The Tolbooth of Edinburgh therin to remaine prisoner for his indecent expressiones in the information given in for him and the other defenders and particularly the first two paragraphis of that informatione dureing the Councills pleasure which was Immediatly done accordingly, And the said lybell or process being upon the fourtein day of the said moneth of November instant againe Called in presence of the saids Lords of his majesties privy Councill They nominated and appointed a Committie of their oun number for endeavoring to setle and agree both parties and incase they could not agree them Recomended to the Committie to examine the witnesses and the witnesses present haveing made faith The saids Lords granted Caption against the absent witnesses and Reserved all objectiones which might be made against the said witnesses to be proponed and discust before the said Committie, Which Committie haveing accordingly mett They took and received the oathes and depositiones of diverse and sundrie famous witnesses adduced for proveing of the Lybell who being all Solemnly Sworne Interrogate and examined in the Said matter upon their great Oathes deponed and Declared as their oathes and depositiones extant in proces bears, And the said Lybell or process being this day advised by the saids Lords of his majesties privy Councill And the saids Lords haveing heard the depositiones of the witnesses taken in the said process And also the information at either parties instance Being read in their presence And haveing Considered the Lybell and haill Stepps of the process, The saids Lords Finds it sufficiently proven, That the saids Weymes of Boggie elder and younger hade been in possession of Two roads and wayes throw Bannochies Lands to Kirkaldy and Kirk therof and the kirk of Abbothall And Therfore Have Ordained and hereby Ordaines the saids Lands of Boggie to Continue their possession of the saids two roads or wayes in the Same maner as they possessed the same at any time heretofore and before they were Stopped by the said Master Robert Whyte of Bannochie.

Att Edinburgh the Twentie third day of November Jaj vic Nyntie Nyne

D1699/11/151

Decreet

Decreet The Lairds of Boggie Against Mr Robert Whyt of Bennochie

Anent the Lybell or Letters of Complaint purchased and praised before the Lords of his majesties privie Councill at the instances of of2 John Weymes of Bogie his father and Sir Archibald Hope of Rankeillor one of the Senators of the Collodge of Justice with concourse of Sir James Stewart his majesties advocat for his highnes intrest in the matter underwrittin Makeing Mentione That wherby the Lawes of this and all other weell governed nationes the applying to the Justices of peace of ane other presbytrie after that the matter underwrittin in debate was tabled before the Justices of peace of another presbytrie, and for the saids Justices to Sustain themselves Judges without Lawfull Citation of all parties haveing intrest, and the adjudgeing of any mans Lands to belong to another wher they were not within the termes of the act of parliament Jaj vic sixtie and Jaj vic Sixtie Nyne, And the stopping of high wayes and Ordaineing new wayes in Law therof and the debarring of any man from the use of his oun burn which is the only place of wattering as also the determineing ane under value of any mans ground, Be all crymes of ane high nature and severly punishable, Yet Nevertheless it is of verity That Mr Robert Whyt of Bannochrie Alexander Melvill of Mordairne Robert Hay of Stowie and James Balcanquell of that ilk there of the Justices of peace within the Shire of Fyfe in manifast Contempt of the forsaids Lawes and acts of parliament Haveing without any Shaddow of Law taken upon them at their oun hands to sett of apeace of the saids Lands of Bogie belonging in property and lifrent to the saids pursuers And to decerne and adjudge the Same to belong to the said Mr Robert Whyte of Bannochie Impowring him to dyke in and inclose the Same to his Other adjacent Lands and to close the same to the park dyke of Bogie on the East and therby not only took off the propertie of the forsaid piece of ground Bot also did therby debarr him from the use of the burne which was the only place of wattering both in time of Dought and Storme As also did nitt off and interup the Comon high way which the heritors of Boggie and their tennants have hade past memory through the forsaid ground to the Church of Abbothall, Which is their paroch Church and to the kirk and burgh of Kirkaldie wher the pursuers also have intrest leading throw the Lands of Bannochie and appointing the heritors of Boggie and other tennents and possessors of these Lands to have any way upon the west side of the stone park of Boggie a way uneasie and Impassible, and to keep the forme and Collour of Law Decerned the said Robert Whyte of Bannochie to make payment of Twentie merks only as the value of the said peice ground, which decreet is null and nothing but a plain act of oppression and injustice primo Because the forsaid Justices of peace of the presbytrie who could have best understood and Judged the value of the ground and of the Commodities and incommodities that might follow to the forsaids parties Likeas the saids Justices were prevented by a former intimatione made to Bannochie of before that the Nighbouring Justices of peace of the presbytrie were to meett Cognose and determine upon the forsaid ground and marches therof and of the Conveniencie and inconveniencie which were to be Considered by them that either party hade to plead before them so that the said packt meeting of these the saids thrie Justices of peace was most Illegall and unwarrantable and tending only to vex the said pursuers who hade first applyed to the ordinary Justices of peace for their dyet which they appointed on the seventeinth therin3 instant And ther pretended ded was given on the sixteinth before Secundo the forsaid Decreet was intrinsically null and Cannot palliat4 partiallity and oppressione In so farr as the Samen is without any Citatione given to the saids pursuers, The said Lord Rankeillor and James Weymes of Boggie for their interests of lyfrent, and Citation given to Boggie ther was only two or thrie houres before the sitting down of the Court upon the ground of the Lands which was most gross Illegally and unwarrantable Especially in a case That Toutcheth mens properties Tertio the said Mr Robert Whyt of Bennochie could nowayes pretend to be in the case of the act of parliament, Seing before and all allongs the ground taken from the pursuers Bannochie at his own hand Built a new dyke which was Straight and haveing made his electione So he could not recurr to or pretend any favor upon the forsaid act anent the incloseing Quarto So unjust and arbitrary were the saids thrie Justices That they proceeded and debarred Boggie from the right of his high way Leading to his paroch Church without ever visiting the other high way to the west of the Ston dyke of the park how that the same was Impossible, Or without ever Considering whither the distance was within two hundred ells Contained in the act of parliament And without Considering the Loss of Laying on the same high-way upon Boggies Lands which was formerly threw Bannochies Land and without any repairation for that Loss or Consideratione of the Charge and expensses that it will take to make and force the said high way to be a passible way and without any Consideration of damnadges done to Boggie by takeing away the benefite of the Burne which is the only place for wattering of his goods, and the goods of his tennants in the time of drought and Storme, And altho Bennachie could have been served with watter for Litle or no charge on the other Side of his dyke by digging not above ane ell or siz quarters deep under the Levell of the said Burne By all which it is evident that the saids Justices of peace have Committed gross and palpable iniquity and Misdemeinour in their offices as Justice of peace And under the Collour of Law greatly oppressed the pursuers, And therfore the saids Justices Ought not only to be deprived of their offices and the said Mr Robert Whyt of Bennochie as actor abaiter and airt and part of the said unwarrantable Contrivance being ane advocat and pretending to understand Law, They and he ought to be Condignly punished in their persones and goods to the terror of others to Committ the Like in time comeing And Anent the charge given to the haill fornamed persones defenders To have Compeared personally before the saids Lords of his majesties privy Councill at ane Certaine day now bygone To have answered to the said Complaint and to hear and see such order and Course taken theranent as appertaines as in the principall lybell or Letters of Complaint raised in the said matter with the executions therof at more Lenth is Contained, The said lybell being upon the nynth day of november instant called in presence of the saids Lords of his majesties privy Councill And the said James of Boggie and the Lord Rankeillor Compearing personally as two of the pursuers, And the above James Weymes elder of Boggie the thrid pursuer being oft times called and not Compearing And the Lord Advocat Sir Walter Pringle, Sir Alexander Home Mr David Dalrymple and Mr Thomas Weymes Compearing as advocats for the haill pursuers And the above haill defenders Compearing all personally with Mr David Cuninghame their advocat, The lybell and answers made therto fore the defenders being read, And the said Mr Robert Whyte one of the defenders being called in, and haveing appeared at the Councill Barr acknowledged that the answers read were given in by him and the other defenders The saids Lords appointed the saids Mr Robert Whyt to be caried to The Tolbooth of Edinburgh therin to remaine prisoner for his indecent expressiones in the information given in for him and the other defenders and particularly the first two paragraphis of that informatione dureing the Councills pleasure which was Immediatly done accordingly, And the said lybell or process being upon the fourtein day of the said moneth of November instant againe Called in presence of the saids Lords of his majesties privy Councill They nominated and appointed a Committie of their oun number for endeavoring to setle and agree both parties and incase they could not agree them Recomended to the Committie to examine the witnesses and the witnesses present haveing made faith The saids Lords granted Caption against the absent witnesses and Reserved all objectiones which might be made against the said witnesses to be proponed and discust before the said Committie, Which Committie haveing accordingly mett They took and received the oathes and depositiones of diverse and sundrie famous witnesses adduced for proveing of the Lybell who being all Solemnly Sworne Interrogate and examined in the Said matter upon their great Oathes deponed and Declared as their oathes and depositiones extant in proces bears, And the said Lybell or process being this day advised by the saids Lords of his majesties privy Councill And the saids Lords haveing heard the depositiones of the witnesses taken in the said process And also the information at either parties instance Being read in their presence And haveing Considered the Lybell and haill Stepps of the process, The saids Lords Finds it sufficiently proven, That the saids Weymes of Boggie elder and younger hade been in possession of Two roads and wayes throw Bannochies Lands to Kirkaldy and Kirk therof and the kirk of Abbothall And Therfore Have Ordained and hereby Ordaines the saids Lands of Boggie to Continue their possession of the saids two roads or wayes in the Same maner as they possessed the same at any time heretofore and before they were Stopped by the said Master Robert Whyte of Bannochie.

1. NRS, PC2/27, 274v-277v.

2. Sic.

3. Insertion.

4. Insertion.

1. NRS, PC2/27, 274v-277v.

2. Sic.

3. Insertion.

4. Insertion.