Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the threttie day of Jullie J^aj vi^c nyntie six yeirs

D1696/7/36

D1696/7/36¹

Decreet

Interloquitor Doctor Skeen against the Earle of Braidalbine and William Campbell

Anent out Soveraigne Lords Letters of Suspensione purchased and raised befor the Lords of his majesties privie Counsell at the instance of William Campbell Shirreff clerk of Caithnes designed in the lybell eftermentioned Chamberland to The Earle of Broadalbine Makeing Mention That wher in the actione intented befor the Lords of our privie Counsell at the instance of Doctor Alexander Skeen Late proveist of the colledge of Standrews Against the said Earle of Breadalbine William Dumbar of Hemprigs James Stewart and the said Complainer alleadged inverting of his pretended possessione of certaine Lands in Caithnes The Said Complainer is incarcerat within the tollbwith of Edinburgh be vertue of a warrand from our saids Lords purchased and procured at the said doctors instance upon most gross and callummows misrepresentationes appointing the said complainer to be secured and comitted to the next prisone untill the said complainer Should compear befor our saids Lords and ansuer to the lybell given in against him at the doctors instance As the lybell ansuers and minwts Which warrand foirsaid ought to be Suspended and the complainer Sett at Libertie for the reasones following Primo Because the said complainer did compear and did make ansuer to the lybell given in against him at the doctors instance As the lybell answers and minwts of proces lying in the clerks of our Counsells hands testified Secundo the said complainer did not only compear and did make ansuer to the lybell given in against him at the doctors instance But likewayes did attend for severall dayes untill the depositiones of the wittnesses adduced by the said Doctor were taken And finding that they did nowayes mulitat against him nor anyway prove what the doctor Laid to his charge The Said Complainer thought himself no furder concerned especially the doctor haveing craved and gott allowed to him a new dilligence against wittnesses to the first of Jwny in order to prove the articles of the lybell as he pretended relateing to the said Complainer particularly his alleadged threatening of his tennents and violently dispossessing the said Doctor the said complainer thought himself secure and not concerned to compear untill the tyme that these wittnesses Should be addwced Tertio wheras the doctor now pretends to referr articles to the complainers oath he humbly conceaved that in Law he cannot be obleidged to depone because the said doctor doeth both call and insist against the said Complainer as a pairtie and made electione of his maner of probation by wittnesses And accordingly wittnesses haveing bein adduced by him for proveing of his lybell which does not att all towch him consonant to the constant rwle and practise of all Judicatories he cannot now recurr to the oath of pairtie Conforme to the knowen maxime in Law electio wno medio probandi non recurritur ad aliwd And if otherwayes it might open a door to perjurie Qwarto if the Saids Lords of our Counsell Shall think fitt to obleidge him to depone As the Said Complainer humblie conceaves he cannot be for the reasones foirsaids And others the said Complainer Shall propone at a full heareing the Said Complainer hes fownd Sufficient cawtione to compear for that effect And this warrand being in effect but of the nature of a second dilligence for not compeareing to depone And the said Complainer haveing fownd Cautione as said is to compeare when called and ansuer as Law will The said Complainer owght to be Sett at Libertie and allowed a competent tyme to that effect And anent the charge given to the saids defenders to have compeared personallie befor our saids Lords of privie Counsell at ane certaine Day now bygone to have ansuered to the foirsaid complaint and to have heard and Sein Swch order and course taken theranent As the Saids Lords Should think fitt wnder the paine of rebellione etc As in the principall Letters of Suspensione raised in the said mater at more lenth bears And Sicklyke anent the bill of Suspensione given in to the saids Lords of his majesties privie Counsell be the said John Earle of Broadalbine and be the said William Campbell Shewing That wher in the actione persued be Doctor Alexander Skeen against the petitioners and Severall other persones befor ther Lordships anent the alleadged violent dispossessing him of the Lands of Killinster Reise and others in Caithnes ther Lordships by ther decreit of the twentieth of Febrwary Last Fand that the doctor was in possessione of the Saids Lands and ordained the Shirreff principall of the Shyre of Caithnes and his deputs to reenter the doctor for the possessione therof and discharged any persones whatsoever to molest him therin ay and while the Same be legallie redenned and ordained the tennents and possessors of the wodsett Lands to make payment to the doctor of the maills and Dweties of the Samen Since Mertimes Last and in tyme comeing till the wodsett be legallie redenned and ordained the Shirreff or his deputs to certiorat the tennents that they may pay the rents to the doctor and to non els And gave order and warrand to macers or Messengers to apprehend the said William Campbell wherever he might be apprehended untill he appear befor ther Lordships and answer to the doctors lybell and ordained them to committ him to the next persone untill he be delivered thence by order of ther Lordships for his appeareance in maner foirsaid Wherupon the doctor hes charged or atleast intends to charge and putt the said Decreit to furder executione Most wrongowsely and wnjustlie Considering it is of veritie that the foirsaid Decreit was pronunced against the said Earle in absence and while he was owt of the Countrie And most indirect advantadge was taken against him in bringing that affair that was wholly civill befor ther Lordships as if he had by himself or others in his name Committed a peace of Bangastrie and oppressione against doctor Skein by throwing him brevimanu out of his pretended wodsett and possessione represented to be all his Liveliehood Wheras the trweth he did nothing in that mater but conforme to his wndoubted rights and Dwe order of Law Secundo the foirsaids Letters and Decreit ought be Suspended because the plaine caise is That the deceast Bishup Forbes had indeed a wodsett for about nyntein Thowsand merks upon certain Lands belonging to the Earle of Caithnes but this wodsett was also affected with a backtack and tho through the negligence or Cumbance of the Earle of Caithnes his factors and Chamberlands The Bishup gott into the possessione by uplifting maills and Dweties yet it is most manifest in Law that nether the Bishup nor Doctor Skeen his assigney had any Jwst title to possess or any maner of Legall possessione but a meer precarious intromissione with the rents Since the backtack in favoures of the Earle was a Standing tack wndeclaired so that if he Suceeding to the Earle of Caithnes both in the irredeimable right of the Lands And likewayes in the right of the backtack Did by the Shireff deput recover his possessione and obtaine decreit against the tennents for bygones and in tyme comeing he did nothing bwt what was most Jwst and wswall And that thws the whole mater was caryed is evident be the very Lybell raised befor ther Lordships wherby it is manifest that this affair was not only whollie civill And Such wherin ther Lordships are in wse to Declyne themselvs But Likewayes that it was whollie Jwst and orderly Tertio the charger did indeed alleadge that the Biship entered into the possessione of the wodsett Lands by consent of the Earle of Caithnes And that this consent he had under his hand Which consent is Denyed and noe Such consent either was or can be prodwced And esto ther had bein Swch a consent which was not yet it is evident and acknowledged by the lybell that the petitioner resumed his possessione by due order of Law befor the Shireff deput And that his recovering his possessione upon his undoubted right as heretor and reverser and his Standing right of Backtack by order of a Shireff depwt Should be Judged a ryot to be tryed by ther Lordships wher ther was nether violence or any disorder is a caise whollie wnprecedented But Qwarto the lybell befor ther Lordships did indeed make mentione of the hard names of Dispossessing Concussing and oppressing But primo the very lybell acknowledges that the petitioner assumed his possessione by a decreit in Dwe order of Law Secundo ther could be no dispossessing wher the charger had no legall possessione by a Decreit but a bare and naked intromission with rents De factor without any warrand of Law But Tertio in all the probatione It doeth not appear that soe much as Dispossessing was proven and much Less that any Concussione or oppressione was wsed in the caise And in effect all proven was That the bishup and his assigney Doctor Skein the charger had Sometymes bein in wse to intromett but for any title or possessione or any Shaddow of title they had non But Qwinto that ther Lordships may perceaved what hardshipe the said Earle of Breadalbine hath Suffered by this decreit in absence without any probatione Ther Lordships may be pleased to notice that for all doctor Skeins clamour as if he were greatly wronged in his most Just right yet it is well knowen that the Earle of Caithnes Sustained all the wrong And that the bishup and his assigney are Long Since payed for primo ther was never noe money advanced by the Bishup to the Earle But the trwe grownd of the debt was that the bishup pretending Some Lands the Earle held of him to be in nonentrie wherof the few Dweties came but to a Small Soume And that the Earle Should accept a charter from him and pay him a composition therfor And that the Earle was also Dwe to him the teinds for Severall yeirs by reasone of expyred tacks he prevailled with the Earle to grant him the foirsaid wodsett therfor albeit it be most certaine that the Earles Lands were not in nonentrie But that he had entered by a charter granted by his Majestie in the yeir J^aj vi^c and Sixtie which Stood good notwithstanding of the restitutione of Bishups and soe stoof in need of no charter from the Bishup nor was ther indeed any charter granted by the Biship albeit a great pairt of the Soume in the wodsett was in Leiw of a compositione for a charter that was not necessarie And tho it were wes never granted As also it hath Since bein discovered that the Earle had Decreits of prorogatione of his tacks of the teinds for many yeirs yet to rwn And yet it was for these pretences that the biship Did elicite the foirsaid right And Secundo As the right was most wnjustlie elicite soe in effect it was Long payed and purged by the bishup and his assigney ther intromissiones who instead of ther annualrent or backtack Dwetie intrometted with no Less then two thousand two hundereth merks yeirly for the Space of Severall yeirs wherby the verie principall Soume, false as it was is long Since Satisfied and extingwished Which reasones of Suspensione being all most relevant It is hoped that ther Lordships will repone the petitioner to his foirsaids defensses And not Suffer him to ly wnder the hardshipe of the foirsaid Decreit in absence soe groundlesslie obtained against him when he was abroad owt of the Countrie as said is And appoint the reasones above represented to be Discust upon the bill And therfore Beseeching ther Lordships that they may have Suspensione in the premisses without cautione or consignatione or that ther Lordships will ordain the foirsaids reasones to be discust Summarly upon the bill As in the said bill of Suspensione at more lenth is contained The Saids Letters of Suspensione being upon the twentie third of Jully instant called in presence of the Lords of his majesties privie Counsell And the Same and Likewayes the said bill of Suspensione with the doctors ansuers to both being read And the Said William Campbell and the Earle of Breadalbine being absent and not compeareing Sir James Stewart his Majesties Advocat Mr Hew Dallrumple and Mr William Calderwood Compareing as Advocats for them both And Doctor Skeen the charger Compeareing personallie with Sir Patrick Home his majesties Sollicitor as Advocat for him And both pairties Lawiers being fullie heard The Lords of privie Cownsell be comended to a comittie of ther own number to call for both pairties and hear and endeavoure to setle and agrie them in the mater and continwed the Same till twesday then next And in the mean tyme Sisted executione at the chargers instance against the said Earle of Breadalbine and William Campbell upon the decreit charged on And the said Committie haveing mett they made a verball report that they have endeavoured to Setle the pairties But cannot agrie them And the saids Lords of privie Cownsell haveing considered the whole mater they turne the Decreit charged upon into a lybell And remitts to the Lords of Counsell and Sessione to discuss the title and right of possessione which is in Debaite betuixt the pairties and of consent of both pairties by ther Lawiers Recomends to the saids Lords to Discuss that point Sumarly without necessitie of abideing the ordinary course of the roll And in the mean tyme Decerns and ordaines the Earle of Breadalbine to make payment to Doctor Skein of the Soume of Four hundereth merks Scotts yeirlie Dureing the Dependance of the process and ay and while the Same be discust and determined Comenceing frae whittsonday Last bypast Beginning the first yeirs payment instantly at the day and Date heirof for this current yeir J^aj vi^c nyntie six and yeirlie therefter Dureing the dependance of the said proces at the terme of Whittsonday each yeir by way of advance the termes of payment being allwayes first come and bygone And ordaines Letters of horning on fiftein Dayes and wther executorialls needfull to be direct heiron under the Signet of Cowncell and wthers upon the premisses if need beis in forme as effeirs