Act, 6 October 1697, Edinburgh

Att Edinburgh the Fiffth of Auwgust J^aj vi^c nyntie seven yeirs postmeridiem

D1697/8/7

D1697/8/7¹

Decreet

Decreit Alexander Dowll Against James Murray

Anent the lybell or Letters of complaint raised and persewed befoir The Lords of his majesties privie Counsell at the instance of Alexander Dowll Late baillie of Week with concurse of Sir James Stewart his majesties Advocat for his highnes interest in the mater wnderwrittin Makeing mentione That wher by the Lawes of this and all other well governed realmes The crymes of oppressione and violent and maisterfull ejectione without the dwe order of Law As also of maleverseing in publict offices to the prejudice of pairties concerned Are Crymes of a high nature and owght to be Severelie pwnished Especiallie wher the Same is committed under the pretext of Jwstice and Jwdgement and the forme therof only abwsed and the verie minwts wher the Same is Committed and of process Counteracted for the carieing on the said oppressione and violence Nevertheles It is of veritie that James Murray merchand in Week as pretended factor for John Dowll of Chattom in England haveing maliciowselie raised in the moneth of May or Jwne Last ane actione of removeing against the said Alexander Dowgll Complainer to remove from his house in Weik of Caithnes the said James Murray did carie on the perswite with all the haist he could hopeing that in that remotest pairt of the Kingdome he might gett throw a decreit befoir any Advocatione could be brought from Edinburgh And haveing made his own way with the Shirreff depute Judge in the cause But Speciallie with William Campbell the Clerk and Gilbert Owmand his clerk depute first he getts the actione to be called the beginning of Jwne and when the said Complainers procurators craved up the Lybell and grownds therof to Sie and answer the persewer replyed that noe inspectione owght to be granted to the said complainer nor noe defence heard for him untill first he fownd Cautione for the violent profeits which the Judge Swstained ordaineing the Complainer to give in his peremptor defensses and find Cautione the next Court day without Soe much as ordaining him to have inspectione of the lybell and grounds therof And plainely contrair to the act of parliament and Daylie practiq which appoints defenders in removeing to find Cautione only in the caise that they propone a dilator or a peremptor defense requyreing probatione Secundlie when the next court day came Viz the Eleventh of Jwne the said James Murrey by the meanes of the Jwdge and clerk obtained Sentance pronunced because the said Complainer did not prodwce his defensses and Cautione which defensses he could not prodwce not haveing sein the Lybell and grownds therof But with this Strainge qwalitie that the Jwdge Superceeded extracting untill that he revised the process This Jwdgeing without Judgement And therefter upon the Sixtein day of the said moneth of Jwne the Said Complainer compeared personallie and prodwces ane Advocatione Dwelie past and protested that the said Jwdge might proceed not furder But the advocatione is marked by Gilbert Owmand the Subclerk to be prodwced in Judgement the Said Sixtein day of Jwne and admitted as the advocatione on the back bears yet the said persewar alleadgeing that the advocatione was not prodwced debito tempore The Judge Sustaines the alleadgeance and gives out his Decreit which yet bears date upon the verie Said Sixtein day of Jwne that the Advocatione was prodwced and admitted wherby it is most manifest that this decreit was impetrat and obtained by meer oppressione of the persewar and clerk and Specially the clerk who extracted the Same efter the advocatione prodwced and dwely admitted and marked and who in these remote pairts tirranzes and his pleasure as can be instantlie veriefied by the prodwceing of decreets of that Court wherin he both Sitts as Judge and Subscribes as clerk a thing most inconsistent and absurd And the Said James Murray persewar not content with this foirsaid oppressione goes on to execute the said decreit and not knowing perfitely that at that distance it was impossible for the said Complainer to report a Suspensione within the fiftein dayes of the precepts he goes on the more vigorowselie and not contenting himself to execute a precept of removeing in the ordinarie maner He with William Murray and Donald Swtherland both inhabitants in Weik his complices without any warrand to make open doors forces and breaks up the doors And Likewayes tires and wncovers a part of the rooff of the house beatting also those those² in the house and Speciallie the Complainers wife whom the said James Murray did beatt with his foot on the bellie that being with child She kept her bed ten dayes and was in hazard of miscarieing And soe by maisterfwll and wnwarrantable violence throwes owt the said Complainer his Wife bairnes and goods haveing the goods upon the Streets all broken and Spoilled by his violence to be furder exposed to be Stollen as otherwayes abwsed as must necessarly happen in Swch caices and Still retaines the house in his possessione most violentlie and wnjustlie and yet have had the impwdence to raise a new actione of deforcement against the said Complainer as if he Still kept him owt of the possessione befor the Same Shirreff depute and clerk on purpose to rwine him wtterlie in soe remote a concurr By all which it is manifest that the said James Murrey and William Campbell and ther said Complainers they and each of them are gwiltie airt and pairt of manifest oppressione violence and Spoillzie which being verified and proven they owght and Should be decerned to restore to the Said Complainer the said possessione cum omni causa And Likewayes to pay to the Said Complainer the Soume of Two Thowsand and five Hundereth merks Scotts money of Damnadges And furder that they be pwnished in ther persones and goods As the Lords of our privie Cownsell Shall Sie cause to the example and terror of others to Committ the Lyke in tyme comeing And Anent the charge given to the saids defenders to have Compeared personallie befor the saids Lords of privie Counsell at ane certaine day now by past wnder the paine of rebellion etc As the said lybell or Letters of Complaint with the executiones therof more fullie proports Which lybell or Letters of Complaint being upon the eightein day of March J^aj vi^c nyntie seven yeirs Called in presence of the saids Lords of his majesties privie Counsell with the lybell of reconventione the said James Murray William Campbell and Mr Patrick Murray against the said Alexander Dowll persewar in the principall cause being Likewayes called in presence of the saids Lords And the persewer of the principall cause who is the defender in the reconventione Compeareing personallie with Sir David Thores and Sir […] Home his advocats And the said James Murrey persewar in the reconventione and William Murrey and David Swtherland who are both defenders in the principall cause Compeareing personallie with Sir Patrick Home Mr Hewgh Dallrimple and Mr Andrew Home ther advocats and Mr Patrick Murray and William Campbell two of the persewars in the reconventione and the saids William Campbell and Gilbert Owmand two of the defenders in the principall cause being Laufullie cited oft tymes called and not Compeareing The Counsell haveing heard the principall lybell and answers made therto read in ther presence and haveing considered the same with the reconventione and haveing heard both pairties Lawiers They admitted both lybells to probatione and the wittnesses in both lybells who were cited and compeareing haveing made faith at the barr The Saids Lords appointed a Comitie of ther own number to examine the wittnesses and granted furder dilligence by Captione against the absent wittnesses both at the presewar of the principall lybells instance and at the persewar of the reconventiones instance Which Comitie haveing accordinglie mett and examined Diverse and Sundrie famous wittnesses who being all Solemnly Sworne and examined and interrogat deponed and declaired As ther oathes and depositiones extant in process bears And the said process being againe this day called in presence of the saids Lords of privie Counsell in order to advise the probatione And the persewer Compeareing personallie with Sir James Stewart his majesties advocat Sir Patrick Home Sir David Thores and Mr James Nasmith advocats for the said persewar and James Murrey one of the saids defenders Compeareing personally with Mr Hwgh Dallrimple Mr William Callderwood and Mr Andrew Home Advocats for the haill defenders The Councell haveing atlenth heard both pairties Lawiers and haveing considered the writts prodwced They find that John Dowll who is persewar of the removeing and is cited in the advocatione was not concerned to desist from the said removeing Seing the Jwdge repelled the Advocatione and pronunced decreit And finds no ryot proven against the defenders called in the lybell And therfore Have Assoillzed and heirby assoillzies the defenders from the lybell of ryot in respect ther hes been a criminall process persewed for the alleadged murdering of the said Alexander Dowlls wife and the persones called in that process are assoillzied Reserveing to the persewar to insist befor The Lords of privie Counsell or Sessione or any competent Judge against Mr Patrick Murray of Pennyland the Judge for acting Spreto manfato Jwdicis