Decreet, 26 June 1694, Edinburgh

Act, 27 December 1694, Edinburgh

Edinburgh the twentie sixth day of June Jaj vjc nyntie four years

D1694/6/131

Decreet

Decreet absolvitor Maxuell of Carss Against Marion Kennan

In the Lybell or Complaint raised and pursued before the Lords of their majesties privy Councill at the instance of Marion Kennan relict of […] Sturgeon in Traquair Mentioning That quher by the Lawes of this and all other weell governed nationes The sumer and violent spulziatione and intromitting with the leidges goods without order of Law and the Contempt of the authoritie of the supream ordinary Judicatory of the natione By useing poynding after a past bill of suspensione and a particular deliverance of the Lords in perpetua sisting executione duely intimate to the obtained of the decreet and to the messenger and appryssers at least at the time of the poynding whill the goods yet remained at the Cross are all acts of manifast oppressione and violence and high ryots severly punishable Especially when perpetrat by such as have been Justly punished for the like acts of oppression In relatione to the same subject Nevertheless It is of verity That Robert Sturgeon being tackman of the lands of Cruicks for payment of ane agreed rent to the pursuer being subtennent to him in a house and a small parcell of Ground of ane inconsiderable value wherof she payed the tack dutie aggreed to her sone the tennant John Maxuell of Carse the defender did most violently and Illegally eject and thrust out the said Robert Sturgeon and the pursuer For which he was formerly fyned and found guilty of ane ryot notwithstanding the said defender still persisting in his malice and in his unwarrantable oppressive and violent practises haveing obtained a most groundles and unjust decreet in absence before the Stewart of Kirkcudburgh against the pursuer for two years rent of the lands of Cruikes quherof the pursuer was only subtenant in a very small part for one year and being Decerned likewayes for exorbitant duties 2upon so litle materiall Justice that the said defender did never insist against the pursuer for payment nor did the pursuer so much as take notice of or suspended by her sone and by his negligence a decreet of suspension being obtained ther was a new suspensione presented both by the pursuer and her sone, The suspension was past upon Consignatione But the pursuer haveing represented to the Lords that she was only Decerned by ane inferior Judge in absence and therfore desyreing that her suspensione might be past in Comon forme Wherupon the Lords by deliverance the sixtein February Jaj vjc nyntie four Remitted to the ordinary to hear both parties and particularly if the decreet against the pursuers was in fore or only before ane inferior Judge with power to the ordinary to doe therin as he Fand Just and incase of difficultie to report and in in the mean time cisted executione Which Deliverance was not only duely intimat in the Outterhouse in Comon forme but likewayes ane Just double of the bill and deliverance was given by way of instrument to the defender upon the twentie thrid of the said moneth of February notwithstanding the said defender delivered a horning against the pursuer to John Johnstone messenger who without regaird to the said sist or the Lawes and practique of this kingdome, came Early in the morning and Under Cloud of night at least before the sunn riseing upon the nynth of march last to the pursuers dwalling house which is a myll or therby distant from the toune of Dumfrees and ther haveing frighted the pursuer from her oun house in the night fearing the unwarrantable execution of a Caption the said messenger and his accomplices viz John Herries of Braceoch (Called Docter Herres) David Maxwell tennent to the Lady Maybe, William Gordone sone to James Gordone elder merchant in Dumfrees and Alexander Weir Commisar officer ther did Carry away seven milk byne and their followers and two stets and a quey which they caried away in such hast that they did not in the usuall forme appretiat the same upon the ground and haveing Carried them away before sun ryssing to the marcat Cross of Dumfrees wher the pursuers procurator did Compeir Having in his hands the forsaid past bill of suspensione with the bill in presentia and deliverance on the same, which were both intimat to the messenger and his associats at the Cross before the act of poynding was Compleated or the goods Carried from the Cross notwithstanding the messenger and his saids associats and especially the appryssers viz William Gillisone merchand in Dumfrees and Edward Irvine ther both sworne appryssers in the said toune of Dumfrees Did not desist but signed the appretiation and delivered the poynded goods to the defender John Maxwell of Carse after the said instrument In like maner the said Edward Irvine who did not come to the Cross when the goods were ther, Did take upon him to signe ane appretiation of the goods which ought to be publictly and solemnly appryssed at the Cross wher the said defender John Maxwell of Carss was not at all present albeit he signed the same after the pursuers instrument, And Farder the pursuer haveing afterwards applyed to the defender carss againe presenting the forsaid past bill and deliverance in presentia And Requyreing restitutione of the poynded goods before they were disposed off, Which he altogither refused, and still violently detaines the same, off all which acts and deeds of Ryot and oppression, The haill defenders are guilty or airt and part therof and Therfore Ought and should be punished in their persones and goods to the terror of others to Comitt the like in time comeing But prejudice allwayes to the said pursuer to insist before the Judge ordinary for restitutione violent profitts and Damnadges as accords And Anent The Charge given to the saids defenders To have Compeired before the saids Lords at ane Certaine day now bygone To have answered to the points of the abovewritten Complaint and to have heard and seen such order and Course taken theranent as the saids Lords should think fit as the said principall Lybell and executiones therof raised in the said matter at more length bear Which lybell or letters being Called in presence of the saids Lords upon the twelth day of June instant and the pursuer Compeiring personally with the said Sir James Stewart and Mr Hew Dalrymple her advocats and the defenders (Except William Gordon and Edward Irvine) Compeiring also personally with Sir James Ogilvie and Mr Alexander Fergusone their advocats, and the saids William Gordone and Edward Irvine being lawfullie sumoned oft times called and not Compeiring The lybell and answers therto for the said Maxwell of Carss, And also the answers for the said John Johnstone and William Gillisone being read and both parties advocats being fully heard, The saids Lords of their majesties privy Councill Finds these points of the Lybell relevant viz that the poynding was used before sumryssing, and that the principall bill and sist was intimat to the partie himself or to the messenger at the Cross before poynding, And the witnesses Cited being present, and haveing made faith at the barr, The saids Lords nominats and appoints the Lords Ross and Beilhaven and the Laird of Blackbarrony to be a Comittie for examineing of the witnesses and Reserves all objectiones that may be made against the witnesses to be proponed and discussed before the Committie and Declares any two of the Comittie to be a suficient quourum and Recomended to the said Comittie to meett tomorrow at ten houres in the forenoon And allowes letters of dilligence to be direct at the instance of the said John Maxwell of Carss for Citeing the witnesses both in the executiones of poynding and instrument of intimatione of the 3 sist and for citeing the nottar to appear before the Councill upon the twentie first day of June instant to depone and be examined upon the points forsaid admitted to probatione Conforme wherto the pursuer and also the said Maxwell of Kerse upon the dilligence allowed to him Which he extracted and Caused execute having led and adduced severall famous witnesses who being all solemnly sworne and Interogate in presence of the said Committie Deponed and Declaired as their oathes and dispositiones extant in proces bears, and the saids Lords haveing this day Considered the forsaid Lybell or Complaint with the depositiones of the witnesses adduced for the pursuer for proveing the lybell, and alse the depositiones of the witnesses adduced be the said Maxwell of Carse togither with four severall instruments of intimatione produced for the pursuer of the sist lybelled They Find the lybell not proven And Therfore the saids Lords of ther majesties privy Councill Have assoylzued and heirby assoylzies the haill forenamed persones from the haill points and articles of the said Lybell And Declairs them quyte therof and free therfrae in all time comeing.

Edinburgh the twentie sixth day of June Jaj vjc nyntie four years

D1694/6/131

Decreet

Decreet absolvitor Maxuell of Carss Against Marion Kennan

In the Lybell or Complaint raised and pursued before the Lords of their majesties privy Councill at the instance of Marion Kennan relict of […] Sturgeon in Traquair Mentioning That quher by the Lawes of this and all other weell governed nationes The sumer and violent spulziatione and intromitting with the leidges goods without order of Law and the Contempt of the authoritie of the supream ordinary Judicatory of the natione By useing poynding after a past bill of suspensione and a particular deliverance of the Lords in perpetua sisting executione duely intimate to the obtained of the decreet and to the messenger and appryssers at least at the time of the poynding whill the goods yet remained at the Cross are all acts of manifast oppressione and violence and high ryots severly punishable Especially when perpetrat by such as have been Justly punished for the like acts of oppression In relatione to the same subject Nevertheless It is of verity That Robert Sturgeon being tackman of the lands of Cruicks for payment of ane agreed rent to the pursuer being subtennent to him in a house and a small parcell of Ground of ane inconsiderable value wherof she payed the tack dutie aggreed to her sone the tennant John Maxuell of Carse the defender did most violently and Illegally eject and thrust out the said Robert Sturgeon and the pursuer For which he was formerly fyned and found guilty of ane ryot notwithstanding the said defender still persisting in his malice and in his unwarrantable oppressive and violent practises haveing obtained a most groundles and unjust decreet in absence before the Stewart of Kirkcudburgh against the pursuer for two years rent of the lands of Cruikes quherof the pursuer was only subtenant in a very small part for one year and being Decerned likewayes for exorbitant duties 2upon so litle materiall Justice that the said defender did never insist against the pursuer for payment nor did the pursuer so much as take notice of or suspended by her sone and by his negligence a decreet of suspension being obtained ther was a new suspensione presented both by the pursuer and her sone, The suspension was past upon Consignatione But the pursuer haveing represented to the Lords that she was only Decerned by ane inferior Judge in absence and therfore desyreing that her suspensione might be past in Comon forme Wherupon the Lords by deliverance the sixtein February Jaj vjc nyntie four Remitted to the ordinary to hear both parties and particularly if the decreet against the pursuers was in fore or only before ane inferior Judge with power to the ordinary to doe therin as he Fand Just and incase of difficultie to report and in in the mean time cisted executione Which Deliverance was not only duely intimat in the Outterhouse in Comon forme but likewayes ane Just double of the bill and deliverance was given by way of instrument to the defender upon the twentie thrid of the said moneth of February notwithstanding the said defender delivered a horning against the pursuer to John Johnstone messenger who without regaird to the said sist or the Lawes and practique of this kingdome, came Early in the morning and Under Cloud of night at least before the sunn riseing upon the nynth of march last to the pursuers dwalling house which is a myll or therby distant from the toune of Dumfrees and ther haveing frighted the pursuer from her oun house in the night fearing the unwarrantable execution of a Caption the said messenger and his accomplices viz John Herries of Braceoch (Called Docter Herres) David Maxwell tennent to the Lady Maybe, William Gordone sone to James Gordone elder merchant in Dumfrees and Alexander Weir Commisar officer ther did Carry away seven milk byne and their followers and two stets and a quey which they caried away in such hast that they did not in the usuall forme appretiat the same upon the ground and haveing Carried them away before sun ryssing to the marcat Cross of Dumfrees wher the pursuers procurator did Compeir Having in his hands the forsaid past bill of suspensione with the bill in presentia and deliverance on the same, which were both intimat to the messenger and his associats at the Cross before the act of poynding was Compleated or the goods Carried from the Cross notwithstanding the messenger and his saids associats and especially the appryssers viz William Gillisone merchand in Dumfrees and Edward Irvine ther both sworne appryssers in the said toune of Dumfrees Did not desist but signed the appretiation and delivered the poynded goods to the defender John Maxwell of Carse after the said instrument In like maner the said Edward Irvine who did not come to the Cross when the goods were ther, Did take upon him to signe ane appretiation of the goods which ought to be publictly and solemnly appryssed at the Cross wher the said defender John Maxwell of Carss was not at all present albeit he signed the same after the pursuers instrument, And Farder the pursuer haveing afterwards applyed to the defender carss againe presenting the forsaid past bill and deliverance in presentia And Requyreing restitutione of the poynded goods before they were disposed off, Which he altogither refused, and still violently detaines the same, off all which acts and deeds of Ryot and oppression, The haill defenders are guilty or airt and part therof and Therfore Ought and should be punished in their persones and goods to the terror of others to Comitt the like in time comeing But prejudice allwayes to the said pursuer to insist before the Judge ordinary for restitutione violent profitts and Damnadges as accords And Anent The Charge given to the saids defenders To have Compeired before the saids Lords at ane Certaine day now bygone To have answered to the points of the abovewritten Complaint and to have heard and seen such order and Course taken theranent as the saids Lords should think fit as the said principall Lybell and executiones therof raised in the said matter at more length bear Which lybell or letters being Called in presence of the saids Lords upon the twelth day of June instant and the pursuer Compeiring personally with the said Sir James Stewart and Mr Hew Dalrymple her advocats and the defenders (Except William Gordon and Edward Irvine) Compeiring also personally with Sir James Ogilvie and Mr Alexander Fergusone their advocats, and the saids William Gordone and Edward Irvine being lawfullie sumoned oft times called and not Compeiring The lybell and answers therto for the said Maxwell of Carss, And also the answers for the said John Johnstone and William Gillisone being read and both parties advocats being fully heard, The saids Lords of their majesties privy Councill Finds these points of the Lybell relevant viz that the poynding was used before sumryssing, and that the principall bill and sist was intimat to the partie himself or to the messenger at the Cross before poynding, And the witnesses Cited being present, and haveing made faith at the barr, The saids Lords nominats and appoints the Lords Ross and Beilhaven and the Laird of Blackbarrony to be a Comittie for examineing of the witnesses and Reserves all objectiones that may be made against the witnesses to be proponed and discussed before the Committie and Declares any two of the Comittie to be a suficient quourum and Recomended to the said Comittie to meett tomorrow at ten houres in the forenoon And allowes letters of dilligence to be direct at the instance of the said John Maxwell of Carss for Citeing the witnesses both in the executiones of poynding and instrument of intimatione of the 3 sist and for citeing the nottar to appear before the Councill upon the twentie first day of June instant to depone and be examined upon the points forsaid admitted to probatione Conforme wherto the pursuer and also the said Maxwell of Kerse upon the dilligence allowed to him Which he extracted and Caused execute having led and adduced severall famous witnesses who being all solemnly sworne and Interogate in presence of the said Committie Deponed and Declaired as their oathes and dispositiones extant in proces bears, and the saids Lords haveing this day Considered the forsaid Lybell or Complaint with the depositiones of the witnesses adduced for the pursuer for proveing the lybell, and alse the depositiones of the witnesses adduced be the said Maxwell of Carse togither with four severall instruments of intimatione produced for the pursuer of the sist lybelled They Find the lybell not proven And Therfore the saids Lords of ther majesties privy Councill Have assoylzued and heirby assoylzies the haill forenamed persones from the haill points and articles of the said Lybell And Declairs them quyte therof and free therfrae in all time comeing.

1. NRS, PC2/25, 9v-12r.

2. The letters ‘fo’ scored out here.

3. The letters ‘Cert’ scored out here.

1. NRS, PC2/25, 9v-12r.

2. The letters ‘fo’ scored out here.

3. The letters ‘Cert’ scored out here.