Warrant, 31 December 1695, Edinburgh

Edinburgh the 25th Jully 1695

D1695/7/45

D1695/7/45¹

Decreet

Decreet Sandilands and Spence etc Against Hepburne

Anent the lybell or Complaint raised and pursued before the Lords of privy Councill at the instance of Rachall Sandilands relict of the deceast Thomas Spence merchant burges of Edinburgh and Rachall Spence daughter to the said Thomas and Thomas Hendersone Chirurgeon appothecary burges of Edinburgh for his intrest and Thomas Henderson eldest Lawfull sone to the said Thomas with Concourse of Sir James Stewart his majesties advocat for his highnes intrest in the matter underwritten Mentioning That wher by the lawes of this and all other weell governed realmes all violence and Ryots are prohibit and the Committing therof specially when persones are brought togither by the Committer, and the Committing therof himself To treat of a Civill affair and when the same is acted by the sudden and violent tearing of writes and securities in a furious maner to Destroy privat rights and with minaceing and offering to draw a sword and² kill the persone whose right is destroyed Is a Cryme of a high nature and ought to be severly punished as also that it belongs to the Justice and care of the government Wher such ryots hapen to doe all that can be Lawfullie done for makeing up the writtes torne as said is and repairing the partie injured and secureing of his persone Nevertheless Its of verity that the deceast Thomas Spence Doctor of medicine haveing by a Dispositione dated the Twelth day of march Last Dispone to the pursuers a part of the Estate and Fortune he hade, and the Doctor therafter Deceasand, James Hepburne in the Milne of Fuccabus and Cobnoch who maried Beatrix Spence another daughter of the said Thomas Spence and sister to the forsaid Rachall Spence Conceaveing himself unequally and unkyndlie dealt with by the said Doctor Spence who hade not left so much of his estate to the said Beatrix his wife as he hade done to Rachall her sister did desire that freinds might meet and Comune and that the disposition made be the deceast Doctor to the pursuers might be produced and seen Which having obtained and freinds haveing meett with the said James Hepburne in the house of Rachall Sandilands his mother in Law upon the twentie thrid day of may Last The said dispositione was produced and put in the hands of Mr John Nisbett writter to the signet, and who was tryster ther for the said James Hepburne desired that he might read the same before the Company But whill he was reading the said James first Murmuring and Storming at what the hard read Did when reading was almost ended rose up in a fury and snatched the papers out of Mr Nisbetts hands and in a moment before any Could interpose teared it in peices, and furder did swear and minace offering to draw his Sword and Laying his hand upon the guard of it, untill that the persones present Laid hold on him, and took out of his hands the peices of the disposition that he still held and gathered up the rest which tearing with the peaces of the said disposition that were torne are all manifast to be produced before the saids Lords and by which it is evident³ the said James Hepburne Is guilty airt and part of a most violent Ryot For quhich he ought not only to be Decerned to pay to the persewers the Soume of Ten thousand merks for their expences and damnages, But also otherwayes punished in his persones and goods to the terror to Commit the like in time coming and Furder Whither the said James Hepburne Compeir or not, The forsaid Disposition quherof The Torne peices are all so extant and preserved That they may easily be sett and Battered togither at the sight of the Lords of privy Councill Ought to be so⁴ made up⁵ to the effect the pursuers parties concerned may still have the benefit therof Sicklike and in the same maner as if the said disposition hade never been Torn But were yet intire in the pursuers hands And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certain day now bygone To have answered to the grounds of the said Complaint and to have heard and seen such order and Course taken theranent as appertained under the paine of Rebellion and puting of them to the horn With Certificatione etc as the said Lybell and executiones therof more fully bears The Which Lybell being upon the Eleventh of June Last being Called in presence of the saids Lords of privy Councill, and the saids pursuers Compeiring personally with Sir James Stewart his majesties Advocat and Mr Micheall Lumsdale advocate their procurators and the above James Hepburne defender Compeiring also personally And his Spouse being Called and not Compeiring and Sir James Ogilvie Compeiring as procurator for both the defenders The Lybell being Read The persewers advocat Declaired he insisted in the haill points of his Lybell⁶ and the defenders Advocat alledged that the Ryot was res hartenus Judicata His Majesties his Court and the saids Lords of privy Councill having Considered the Lybell and at Length heard both parties Advocats They theirby addmitted the Lybell and all the points therof to the pursuers probation and exception of hactenus Judicata to the defenders probatione And appointed a Committie of their oun number for receiveing the witnesses Depositiones and the wholl probation which should be adduced in this affair, Whither for proveing the Lybell or for the defenders exception of res hactenus Judicata, and Reserved all objectiones quhich should be made against the witnesses to be proponed and discussed before the said Commitie The which Committie having accordingly mett and taken the oathes and depositiones of diverse and sundrie famous witnesses Who being all solemnly sworne and Interrogat Depones and Declairs as their oathes and depositiones extant in proces bears And The saids Lords of his majesties privy Councill having this day Considered the Lybell and depositiones of the witnesses with the Torne paper now battered togither and haill stopts of this proces, The Find That the Ryot of ryveing of the paper Lybelled is res hactenus Judicata be the Lord high Constables Court, and that the severall peices of the said Torne paper ware put togither at the sight of a Committie of Councill, and that the torne paper and severall peices are acknowledged by the defender and by the witnesses Depositiones to be the same paper, Which was torne by the defender James Hepburne, And ordaines the paper as it is now battered to be delyvered up to the pursuers And modifies the soume of six hundred merks scots to be payed be the said James Hepburne defender to the saids pursuers for damnages and expences, And Ordaines letters of horning One six dayes and others needfull to be direct at the pursuers instance against the said James Hepburne for payment of the said soume.