Warrant, 31 December 1695, Edinburgh

Edinburgh the Twentie Eight day of November J^aj vi^c Nyntie five

D1695/11/35

D1695/11/35¹

Decreet

Decreit Thomas Porteous and others against John Dick in Jedburgh

Anent the Lybell or letters of Complaint raised before the Lords of his majesties privy Councill at the instance of Thomas Porteous provest Hendry Young James Olipher Gilbert Eliot and Thomas Cranstoune baillies present Magistrats of the burgh of Jedburgh for themselves and in name and behalf of the Toune Councill thereof and James Knigh Jaylor of the Tolbooth of the said burgh with concourse of Sir James Stewart his majesties advocat in the matter underwritten Making Mention That wher by the Comon Law, Law and practices of this realme and Lawes of all other weell governed nations The breaking of prison by any persone especiallie when Committed there for satisfieing Justice and payment of a fyne Imposed by the Lawfull Magistrats for ane high ryot and breach of the peace and for open and manifast contempt of the Sentence of the Civill Magistrat in open Court and the beating Stricking and wounding of the Magistrats within burgh and ther publict Jaylor appointed by them By John Dick burges and inhabitant of the said burgh of Jedburgh to facilitate and procure his escape from and breaking out of prisone Be all Crimes of ane high nature and Severly punishable Nevertheless the said John Dick haveing Charged John Kennedy another burges of Jedburgh for the soume of thrie hundred punds Scots and bygone aboverents thereof Contained in ane bond granted by William Hasswell ane appothecary in the said burgh as principle and the said John Kennedy as Cautioner, The said John Kennedy within the dayes of the Charge having intimat the Distress to Christian Hasswell or to the said William Hasswell She Conveens the said John Dick before the saids pursuers Magistrats of Jedburgh for payment of Eightein punds yearly of tack dutie for two aikers of Land sett by the said William Hasswell to him in tack for payment of the said tack dutie yearly by and attour the Cess and publict burdein And Craved that he might aither pay in the said tack dutie or allow it in the bygone annualrents of the soume Charged for, And both parties haveing Compeired And the tack being produced, And the said John Dick haveing acknowledged his possession the Magistrats by their sentance and interloquitor Ordained the said John Dick to make Compt and reckoning and to allow what Should be found due by him upon his intromissions And In Respect he refused to make Compt and reckoning, The saids Magistrats Decerned for the tack duties Lybelled, Notwithstanding wherof the said John Dick protested in face of Court that he would not obey the Sentance And accordingly that afternoon he distressed the Cautioner for the whole Soume and bygone annualrents and penalties Contained in the bond without allowing either the retentione Conforme to the act of parliament or allowing any Compensation for the tack duty And after all refused to give up a bond of Coroboratione granted for the same soume, Wherupon the debitors were againe obleidged to pursue him before the saids pursuers Magistrats of the said burgh of Jedburgh for delivering up the said bond of Corroboratione And againe both parties Compeiring And the Discharge of the first bond being produced the Magistrats Decerned the said John Dick to give up the forsaid bond of Corroboration under the paine of ane hundred Scots Which Sentance he also protested he could not obey But haveing used many insolent and minaceing Speeches and behavior to the pursuers they therfor imlawed him in fiftie punds Scots and ordained him to Stay and remaine in prison till he Satisfied the samen, But In Respect he hade the benefit of open prisone being a burges he having Continued drinking ther till towards Eight a Cloak at night He then hade the Impudence to remove himself out of prison without any Respect to his incarceration And nixt day being requyred by the magistrats to repair to prison under the paine of five hundred merks He Refused to obey ther desire intimat to him by the Jaylor and toune Clerk as ane instrument taken therupon does bear and having afterwards Compeired affrontedly in the Street before the magistrats and their officers And inhabitants of the said Toune The said Thomas Porteous provest was oblidged to requyre the inhabitants concurence Wherupon the said John Dick at last offered to goe to prison if the provest would conduct him and Shew him the way Which the provest Innocently Condescended unto thinking therby to prevent a tumult and disorder in the toune And the said provest haveing then arreisted him to remaine in prison and to behave himself Comperably and Civilly untill the toune Councill Should meet and Consider what Censures Should be inflicted upon him for the injuries done to the toune by the Disobedience and Contempt of the magistrats And the said Thomas Porteous provest therafter goeing out and Calling for the said James Knight Jaylor the said John Dick did upon the twentie Sixth Twentie Seventh or one or other of the dayes of the said moneth of Jully last by past in a furious maner flee upon the said Thomas Porteous provest and Strict him on the breast sore against the heart thinking therby to have throwen him over the Stairs of the prison which danger he narrowly escaped by the help of some of the inhabitants who were standing by him And thrust back the said John Dick into the prison wher he wrestled with the said James Knight Jaylor thinking to kill him untill he was Rescued by the toune officers But some of his Nighbours haveing Stayed with the said John Dick in the prison till night He and they in the night tim brock the prison doors with hamers and other instruments and escaped therby out of prison and hath not since been seen in the toune And Therfore the said John Dick ought to be fyned in the soume of five thousand merks Scots The one half to be payed to the thesaurer of the said burgh for the use therof, And the other half to the said Thomas Porteous provest for his damnage and expensses and to be banished the kingdome never to returne to the terror of others to Comitt the like in time comeing Conform to the Constant practise both of the Lords of his Majesties privy Councill and Lords of Justiciary in the like cases And Anent the Charge given to the saids defender to have Compeired personally before the saids Lords At ane Certaine day now bygone To have answered to the forsaid Complaint And to have heard and Seen such order and Course taken theranent as the saids Lords shall find Just under the paine of rebellion etc As in the principall Lybell or letters of Complaint raised in the said matter and executiones therof at more length is Contained Which Lybell being upon the Seventh day of November instant Called in presence of the saids Lords of his Majesties privy Councill The said Thomas Porteous provest Gilbert Eliot and Thomas Cranstone baillies thrie of the persuers Compeiring personally with Sir James Stewart his majesties advocat Mr Robert Bennet and James Stewart their advocats And the said John Dick defender Compeiring also personally with Sir Patrick Hume his advocat The Lybell and answers therto being both read and both parties advocats fully heard The saids Lords Admitted the Lybell to probation, And some of the witnesses haveing Compeired and made faith, The Lords appointed a Comittie to examine them And Allowed a farder dilligence against the witnesses cited and not Compeiring Who haveing therafter Compeired and made faith the saids Lords Remited to the same Comittie to examine them and Reserved all objections which might be made against any of the saids witnesses to be proponed And Discust before the Comittie Therafter the Comittie haveing mett and having examined the saids witnesses they all deponed as their oathes and depositiones extant in proces bears And the saids Lords having upon the twentie one day of november instant advised this proces and Considered the depositiones of the witnesses adduced be the pursuer for proveing the Lybell Togither with a petition given in for the defender John Dick And having againe heard both parties and his majesties advocat and Mr Robert Benet advocat Compeiring with and for the pursuers and Sir Patrick Home and Mr John Frank advocats Compeiring with and for the defenders The saids Lords Finds the Lybell proven And Therfore They thereby Fyned John Dick the defender in the Soume of Fyve hundred merks scots to be payed be him to the pursuer Thomas Porteous provest of Jedburgh for the Ryot Lybelled and the haill expences Which the pursuer hath been at in this proces, And Ordained letters of horning on fiftein dayes and others needfull to be direct heirupon under the Signet of Councill informe as effeirs And Ordained the defenders instantly to find Suficient Cautione Acted in the books of privy Councill That he shall make payment to the said pursuer of the said fyne of five hundred merks and appoints the macers of Councill to Seize upon and Secure the persone of the said John Dick untill he find the said Cautione as said is But superceid extracting of this Decreet till thursday the twentie Eight of November instant Betwixt and which if the defender produce ane decreet at the instance of the said provest before the magistrats of Jedburgh Sentenceing and Judging the said John Dick for the particular acts of Insolence and Ryot Lybelled in this proces the same shall be received and upon the privy Councills Finding the saids Ryotous acts to be allready Judged by the said ded the said bond and this Decreet is to be discharged and Rescinded And the said actione being againe Called this day in presence of the saids Lords of his majesties privy Councill and both parties Compeiring personally The said John Dick defender produced a paper which he pretended to be the Decreet at the said Thomas Porteous instance against him before the magistrats of Jedburgh Sentenceing and Judging him for the particular acts of Insolence and Ryot Lybelled in this proces And the said Lords having Considered the said paper with two petitioners given in to them one for the Provest proteous and another for John Dick They Find that the paper produced for the said John Dick Is not the Decreet Which by the Last interloquitor in this proces He was appointed to have produced this day And Therfore they Find that the matter Lybelled is not res hacta Judicata And Ordaines the Decreet formerly pronunced in this proces to be extracted, And the saids Lords Ordained the said John Dick to Crave pardon from the said Provest Porteous Which he did accordingly at the Councill in face of the Councill And Ordaines the said John Dick to be Caried prisoner to the Tolbooth of Edinburgh untill he make payment to the said provest of the forsaid fyne of fyve hundred merks.