Procedure, 24 December 1702, Edinburgh

Att Edinburgh 28 July 1702

D1702/7/22

D1702/7/22¹

Decreet

Decreet for Alexander McKeinzie against Sinclair of Ratta

Anent the lybell or letters of Complaint raised and persued before the Lords of her majesties privie Counsell, att the instance of Sir Alexander Mckeinzie of Broomhill, with Concurse of Sir James Stewart her majesties advocat, for her highnes interest in the matter under written, mentioneing that where by the lawes of this and all other weell Governed Realms, the invadeing and usurpeing of mens rights and possessions by way of violence, and with ane unlaufull Convocation in armes, Specially when the same is by open and desperate bangastrie attended with beateing and wounding to the effusion of blood and with many, other violences and outrages, are Crymes of a high nature, Contrary to the publick peace and Quiet, and most Injurious to privat persones, and rights nevertheless It is of verity That John Sinclair of Rattar Wiliam Sinclair his Sone and Wiliam Sinclair Wiliam Gun John Dundas John Smith Hugh Jack, Alexander Smith and Donalld Dirren, his accomplices are guilty of the saids Crymes in maner after mentioned vis In so farr as John Kennedy younger of Stroma, being debitor to the said Sir Alexander in Certain soumes of money, He was thereon Inhibite, notwithstanding whereof, the said John Disponed the wper toun and lands of Stroma to the said Sinclair of Rattar, But the said persuer haveing Reduced this […] leads ane adjucation and obtains decreet for mailes and Duties by vertue whereof the persuar and Murdoch Kennedy his factor entered and have been in peaceable possession of the saids lands, by Setteing of tacks, by lifteing mailes and duties and doeing other deeds without any Interuption till of late, that the said Sinclair of Rattar haveing been for diverse yeares prisoner in the Tolbooth of Taynes, for debt, brock the prison and fled into Kaithnes where haveing gathered some men, particularly John Smith Gardener in Rattar, Hugh Jack his officer, and others, all armed with Gunns, Pistolls and Swords, and other weapons, They manned a boat on Caithnes Syde the beginneing of february last and saileing to the Island of Stroma, They one the seventh of the said moneth entered into the Island where layeing hold on Donald and James Breknars John Kennedy and Wiliam Rossie, four tenants in the overtoun of Stronia, they forced them to goe to Caithnes, by boat for Wiliam Sinclair Ratters sone wo Cam with John Gunn Ratters overseer John Dundas in Corsebach, to the said Isle and then the said Rattar, and his sone and Company did fall to ther violent Invasion In which John Smith one of Rattars men offered to pistoll the said Murdoch Kennedy and Wiliam Gun, aneother of Rattars men did beat Andrew and John Sinclairs two tenants, of the said Isle, with sword and scabard, So that John Sinclair was wounded in the fingers and the said Wiliam Gun threatned to sheet them with a louded pistoll Because they owned the Said Murdoch Kennedy as the persuers factor and the Same night the said John Smith, and Hugh Jack did robb and violently take from the tenants about eleven hours thereafter wpon the nynth of the said moneth of februarie Gun Hugh Jack and Alexander Smith in the toun of Ratterwent to the houses of the tenants, of the said Isles, of Stroma viz Donald and James Brekeners, John and Peter Kennedies George Allan Wiliam Rossies, and searched ther houses and barnes and seized Cornes meall and all other goods, they Could find and took the keyes, of the barnes for secureing the Cornes therin, as they did also the malt in ther malt barnes and sent the keyes to the respective tenants, to have the malt turned and keept from Spoyleing by the hands of his said Complices, and afterwards, had them returned to himselfe and farder the same night Rattar asking one of the tenants his rent, and the tenant ansreing he would pay his ferm to his master Ratter beat him with a beat him with a bigg baton untill he fell to the ground, deeply wounded with a great effusion, of blood whereby the mans life is still in hazard, but farder on the the² tenth of the said moneth of february one Donald Dirren, another man of Rattars, accomplices, a messanger and nottar was brought by Rattar, from Caithnes and ther he forced, the said Donald and James Brakners Patrick Kennedy George Allan, Wiliam and John Rossies and Sivan waes to give warrand to the said nottar, to subscrive for them which the poor men were Constrained to doe not knoweing to what but supposeing it was a disposition to all they had and when the said George Allan whom Rattar had wounded as above was not able to rise from his bed Rattar sent the said nottar and his men and forced him to subscrive as he had done the rest, and this write whither disposition or bond, but extorted as above, Ratter took in his Sones name, and by vertue whereof, Caused the said messenger arreast all the poor people had and wpon the same tenth of february, all night Rattar Constrained every one of the tenants to pay a peck of bear, to the said Alexander Smith, who with his accomplices, exacted the same from house, and farder Rattar forced them to pay the duties of Custom Fish, which they had before payed to the said Sir Alexander persuar ther master, Likeas wpon the threttenth of the said moneth of february the said Rattar Caused Charge the persuars factor and all the tenants to Compear before him att a Court of his own holding and farder Ratter and his accomplices brok up the Dovecoat door and in a word mad himselfe master of all without any order of law but by maniffast violence as said is and in effect, to that hight that the persuars man who Cam to Inform him was forced to venture his life in about in the night for fear of being intercepted which violences were yett more agravat, against the said Wiliam Sinclair, Wiliam Gun and John Dundas that they stood all Charged with Lawborrowes, att the instance of the said Murdoch Kennedy the persuars factor and which Lawborrows they have broke and Contraveened, by all which it is evident that the said Sinclair of Ratter […] Sinclair his sone, and Wiliam Sinclair, William Gun John Dundas John Smith Hugh Jack Alexander Smith and Donald Dirren are guilty airt and parte, of a most lawless invasion, and the haill other violences above lybelled, which being proven, they ought to be not only decerned in the Soume of […] for Coasts and damnages and farder punished in ther persons and goods, as the saids Lords Shall See Cause, to example and terror of others to Commit the Like in tyme comeing but ordained to desist from the saids violences and molestation, and to find Sufficient Caution for that effect, Likeas the sheriff of Caithnes and his deputs ought to be authorized and Commanded to putt the said persuar and Murdoch Kennedy his factor and the persuars other men and tenants, in their former peaceable possession, and to see, ther whole goods restored, and to mantain them in ther possession as law will and anent the Charge given to the haill fornamed persones above Complained wpon to have Compeared personally before the saids Lords, of privie Councill att ane Certain day bygone to have ansuered to ansured to the forsaid Complaint and to have heard and seen such order and Course taken as the saids Lords should have thought fitt under the pain of Rebellion and putting of them to our horn with Certification, as in the said principall lybell and executions thereof att more length is Contained after the which day of Compearance the said lybell was Called, as ther being no signed Interloquitor the said John Sinclair of Rattar for himselfe and in name and behalfe of Wiliam Sinclair his Sone Wiliam Sinclair John Smith Hugh Jack Alexander Smith, and Donald Dirren pretended in the said lybell to be his accomplices gave in ane petition, to the saids Lords showeing That where, the said Sinclair of Rattar being heretably infeft and many yeares in peaceable possession of a peice of land Called the overtoun of Stroma altho³ Sir Alexander Mckenzie of Broomhill, takeing advantage of Its being ane Island att distance, while the petitioner was absent, does⁴ (under pretence of a Claim that is truely extinct) violently Concuss the petitioners tenants, and vitiously attemp wpon his possession, But the petitioner Comeing up, did Continue his possession which he had unquestionable right to defend, yet Sir Alexander projects to Catch advantage upon occasion of being subject to Captions thinking that this would with hold me from personall appearance, and therewpon he Concludes, that he would gett Certification wpon his Shamm Complaint, which he hes raised against the petitioner out of possession whereas the petitioner hes only retained his own And as Ane evidence, that Sir Alexander, only lyes in his hopes of the petitioners being detterred from Compearance, for fear of seizure, his own lybell bears, That the petitioner is obnoxious wpon accompt of his haveing escaped out of prison where the petitioner was incarcerat for debt, and now seeing the petitioner Cannot personally Compear before the saids Lords with safety, without a protection according to the Common Course of law, and ther Lordships Custom in the like Caises and the petitioner being the principall partie Concerned, the persuars Conclusion being possession, the other persons Called as accessories, ther Compearance would be frustraneus till either the petitioner doe Compear or be excused and indeed the petitioner is ane very old man infirm of health, and liveing att a vast distance, viz in Caithnes, So that this matter being in effect Civall, as will appear more fully in the petitioners defences It were much more⁵ proper before the Judges of the place, where witneses Could be had without abstraction from laboreing and the expenses that it would be to discuss it att Edinburgh for ther will appear no ground in Sir Alexanders Clamour, But on the Contrair the petitioner hes the best reason, to Complain on his Intrusion and invasion of the petitioners tenants for the pretence of his legall Claim will in the event dwindle into nothing and There Craveing the saids Lords would either remitt the Cause to the Judges ordinar alloweing the petitioner before him, a reconvention or otherwayes to grant the petitioner a protection for such a tyme, as he may Come wp, and make his appearanc and defences and in the mean tyme to Continue and stop procedure in the Complaint and allow the petitioner to raise a Reconvention And sicklyke the said Sir Alexander Mckenzie of Broomhill gave in ane other petition to the saids Lords by way of answer to the abovewritten petition Showeing that where there being a proces raised before the saids Lords att the petitioners Instance against John Sinclair of Rattar, for his dispossessing the petitioner and Murdoch Kennedy his factor, out of the lands of the overtoun of Stroma, when the proces was Called, the defender Ratter and his accomplices being absent, the saids Lords did Conform to the Conclusion of the petitioners lybell ordain the sheriff of Caithnes, within whose sheriffdome the lands lye, to repossess the peititioner and his factor, therein, he restricting alwayes, before him the petitioners possession the tyme lybelled, which Interloquitor putt him to the leading of a probation before the sheriff which the petitioner Conceaves needless, haveing his probation ready to be laid before the saids Lords, and the Interloquitor haveing proceded wpon the supposition as he is informed, that the petitioner had not his probation before ther Lordships of his possession the tyme lybelled he does Confidently expect ther Lordships in this Case, of momentary possession, as to which he ought to be Summarly restored, will find, by the documents produced, the petitioners possession proven, for he does now produce in the Clerks hands the writtes followeing to prove both right and possession viz a decreet of adjudication att the petitioners instance wpon the twenty day of Februarij sixteen hunder and nynty two years, the Legall whereof is now expyred In the nixt place a decreet of Reduction ex Capite Inhibitionis against Ratter of any pudit right he had of the saids lands, in anno 1693. Item a decreet of mailes and duties against the tenants of the saids lands, with Horning and poynding followeing thereon, in anno seventeen hunder as also ten tacks, granted by the said Murdoch Kennedy the petitioners factor to the tenants of the saids lands in anno seventeen hunder and one, and whereas Rattar hes given in a petition to ther Lordships, aleadgeing that he stands heretably infeft and that the petitioner did take advantage of his absence, Concuss his tenants and attempt his possession.⁶ and that he being under Caption, the petitioner attempt to gett⁷ Certification against him as if the had ejected him, whilest he only retained his own possession, and Therefore Craveing protection att least, that the Cause should be remitt to the sheriff of the shyre Its ansuered that it is admyred with what Confidence any person, Could present such a petition to ther Lordships in name of a man So nottourly disobedient, to the lawes, who notorly brock out of prison where he was incarcerat, for Considerable debts as is not denyed by his own petition but when he gott loose like a furious man Convocateing men in armes, broke in with many outrages, wpon his possession of the lands lybelled, Spoulzieing beatting and wounding the petitioners tenents and servants and that aleadgence that the petitioner invaded his possession and he retained but his own, Its ansuered, that the aleadgence is Contrair to the petitioners lybell and Its evident by the writtes produced, that the petitioner and his factor, were in the peaceable possession; and tho his possession had been vitious as it was not, yet he ought to have recovered his possession via Juris, and persued him for intrusion which when⁸ he does the petitioner and as to the protection demanded, the petitioner humbly Conceaves ther Lordships will think him or any other person unworth, thereof, who hes so litle regaurd to law, and the peace of the Countrey, and if what above represented be not thought sufficient as the petitioners hopes it will to determine, ther Lordships to Cause the sheriff of the shyre possess the petitioner, and his factor, he is ready to aduce before the saids Lords famous witneses, to prove the petitioners possession, and Ratters Intrusion, and the violence Committed by him and the other persons Complained wpon, his associats who are so willfull Contemners of ther Lordships authority And Therefore Craveing the saids Lords would Consider the premises, and in respect of the decernments above deduced ordain the sheriff of Caithnes to reposses him and his factor, the Case being of momentary possession, and in respect of what is above ansuered to the defenders petition refuse the desyre thereof and declair him and his accomplices fugitives they being so Contimaciously absent, as the said petition bears, Which petition petition⁹ above written given in by the said John Sinclair of Rattar and the other petition by way of ansuer therto¹⁰ given in be Sir Alexander Mckenzie of Broomhill being read in presence of and Considered by the saids Lords of his majesties privie Councill wpon the Sixteenth of July instant, they nominated and appoynted the viscount of Roseberry Lord Forbes Lord Boyle, and the Lord Croserig to be a Commitie to Consider the Documents produced by the said Sir Alexander Mckenzie if the Samen doe Sufficiently prove, the persuar possession of the lands lybelled, and if they find needfull likewayes to examine the witneses and take ther oaths aduced by the said Sir Alexander wpon the foresaid possession allenerly, and to report, and recomends to the said Commitie to meet to morrow att ten in the forenoon, declareing any two of them a sufficient quorum and resrves all objectiones to be made against the witneses to be proponed and discust before the said Commity and the Saids witneses as they are marked in the roll Compeareing att the barr did make faith, The Councill grants Caption against Such of the witneses as were absent and not Compeareing and assigned the […] day of […] nixt to Come for that effect, Conform to which Interloquitor the said Commitie haveing mett and ther persuar, haveing aduced before them, diverse and Sundry witneses, who being all Sworn examined and Interrogat deponed and declaired in maner mentioned in ther oaths and depositions as the Samen extant in proces bears and therewpon and wpon the severall Instructions, and writtes after mentioned produced for the said Sir Alexander Mckenzie, the said Commitie made ther report and gave ther oppinion in maner under written, whereof the tenor followes, viz Report of the Commity anent Sir Alexander Mckenzie of Broomhill and John Sinclair of Rattar Sederunt Lord Forbes Lord Crosereig It being by ane Interloquitor of the Lords of privie Councill of the date the Sixteen of July seventeen hunder and two remmitted to a Commitie to Consider the documents produced by the said Sir Alexander Mckenzie if the samen doe Sufficiently prove, the said Sir Alexander his possession of the wpper toun and lands of Stroma, and a Quorum of the said Comity haveing mett and Considered the particular Instructions followeing viz and decreet of adjudication before the Lords of Councill and Session, att the instance of the said Sir Alexander Mckenzie against John Kennedys Elder and younger, then of Stronia adjudgeing all and haill the five pennie land, with the Croft thereto belonging Called the overtoun of Stroma with the haill parts pertinents and Casualities thereto belonging lyeing within the parochin of Cousay Countey and sheriffdome of Caithnes dated the twenty day of february sixteen hunder and nynty two and duely allowed the twenty nynth of march the said year, Item ane decreet of Reduction ex Capite Inhibitionis att the Instance of the said Sir Alexander Mckeinzie against Mrs Elizabeth Sinclair Spous to John Sinclair of Rattar and the said John Sinclair for his Interest reduceing and rescinding any right that the said Mrs Elizabeth Sinclair and John Sinclair of Ratter her Spous have, or anywayes had from the saids John Kennedies elder and younger then of Stroma, to the said five penny land with the Croft thereto belonging Called the overtoun of Stroma, with the haill parts pertinents and Casualities thereto belonging dated the twenty fourth of february sixteen hunder and nynty three, Item ane decreet of mailes and duities proceeding wpon the said decreet of adjudication, before the saids Lords of Councill and Session, att the instance of the said Sir Alexander Mckenzie of Broomhill against the tenants and possessors, of the said five penny land, with the pertinents thereto belonging, Called the overtoun of Stroma, dated the nynth of february seventen hunder years, Item, letters of Horning and poynding with the executiones therof duely Regrat Conform to act of parliament, followeing wpon the said decreet of mailes and duities att the instance of the said Sir Alexander Mckenzie against the haill tenants, and possessors of the said five pennie land, and Croft Called the overtoun of Stronia, dated the fifth of february Seventeen hunder and one, yeares, ther being severall witnesses aduced, by the said Sir Alexander, before the said Commitie and they being all Interrogat wpon the poynts of the possession lybelled, It is the opinion of the said Commity that the Documents and writtes produced, with the depositiones of the witneses aduced before the said Commity doe sufficiently instruct and prove the said Sir Alexander Mckenzie his possession of the lands lybelled, and It is likewayes the opinion, of the said Commity that he should be repossesed to the Samen, Sic Subscribitur Forbes David Hume, as the report bears, and the saids lords of her majesties privie Councill haveing this day advysed the forsaid proces, att the instance of the said Sir Alexander Mckenzie, of Broomhill against the said John Sinclair of Rattar Wiliam Sinclair his sone and Mr Wiliam Sinclair Wiliam Gunn John Dundas John Smith, Hugh Jack Alexander Smith and Donald Dirren his accomplices; and haveing heard and Considered the depositions of the witneses taken in the said proces, Read in ther presence, and also haveing Considered the said lybell, and haill Stepps of proces with the forsaid Report of the Commity of ther number, They have found and hereby finds it sufficiently proven that the said Sir Alexander Mckenzie was in the peaceable possession of the lands within lybelled, before the said John Sinclair and the forenamed persones his accomplices, dispossessed him, and the saids Lords granted Certification, against the haill forenamed persones, defenders, in respect of ther absence, and not Compeareing and ordains letters of Denunciation to be direct, to messengers att armes Commanding them, to pass to the mercat Cross of […] and thereat in her majesties name and authority to duely laufully and orderly Denunce the saids John Sinclair Wiliam Gunn John Dundas, John Smith Heugh Jack, Alexander Smith and Donald Dirren, her majesties Rebells and putt them to her highnes horn, and ordains all the moveaball goods, and gear to be Escheat and in brought to her majesties use for ther Contemp and disobedience, and the saids Lords ordained and hereby ordains the sheriff principall of the shyre of etc or ¹¹ his deputs to repossess the said Sir Alexander Mckenzie, in the possession of the lands within lybelled, and to keep him in the peaceable possession thereof, in tyme comeing and the saids Lords have discharged and hereby discharges, the said John Sinclair of Rattar or any other person or persons, whatsomever of his Causeing sending hundeing out Command resett assisstance, or Ratihabition, whom he may stop, or tell directly or indirectly to trouble or molest the said Alexander Mckenzie his tenants, or subtenants, in the peaceable possession, of the saids lands in tyme Comeing, and ordains letters of Horning on fifteen dayes and other occasions needfull to be direct hereon in form as effeirs.