Act, 6 October 1697, Edinburgh

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

D1697/8/8

D1697/8/8¹

Decreet

Decreit His majesties Advocat Against Pennyland and others

Anent the Lybell or Letters of complaint raised and persewed befor the Lords of his majesties privie Counsell at the instance 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 All Judges and others to whom the administratione of Jwstice is intrwsted or who pretend to exerce the Same owght to administrat Justice fairlie eqwallie those principallie concerned not only to defend But to prosecute ther Just interest aither for reparatione or damnadges or ad vindictam privatam As also to assist ad vindictam publicam And that on the other hand the offering or attempting to precipitat tryalls and the faire course of Jwdgement by wndwe preventing of Such as have the onlie the best right and greatest interest to prosecute the tryall and who can give the most evidence and Light for determineing them on purpose to Suppress the trwe knowledge of the cryme offered to be tryed And to frie and Liberat the persone trwelie gwiltie by ane ill prepared tryall and a mock probatione and assize is a cryme of a high nature and owght to be Severely pwnished Nevertheles it is of veritie that Mr Patrick Murrey of Pennieland pretending to be Jwsticiary and Shereff depute of Caithnes and William Campbell his pretended Clerk in the foirsaid Jurisdictione and Robert Hendersone pretended procurator fiscall of the said Court Shakeing off all Dwe regaird to Jwstice and good order therof And to the foirsaid trwsts wherunto they doe pretend Are gwiltie of a most gross precipitatione of Justice and of a most wnwarrantable prosecutione of a cryme Committed within ther bownds on purpose to Suppress the trwe discoverie therof and to Liberat the criminall insoe far as That ther haveing happened a ryot in the towne of Weik of Caithnes upon the occasione of one James Murrey indweller ther his offering to eject Alexander Dowll alsoe indweller ther owt of his house and dwelling without right or dwe order of Law And the said James Murrey haveing in the said ryot Stoke with his foot upon the bellie the deceast Jennet Carrmock Spouse to the said Alexander then bigg with child And Donald Swtherland also indweller ther haveing violentlie inclosed the said Jennet with a Staff or battone cross her bellie and thrwst her in Swch sort that of the said Strykeing and violent thrusting She therefter fell Sick and dyed which ryot happening about the end of October or beginning of November J^aj vi^c nyntie Six the said Jennet dyed as said is about the threttein of december therefter wherby it is manifest that the said Alexander Dowll her husband had the principall and wndoubted interest to prosecute the tryell of his wifes being killed and murdered in maner foirsaid But albeit that he was only gone to Edinburgh about his Laufull affairs befoir his wife fell Sick and Dyed and did imediatly upon heareing of her Sicknes take his way for Caithnes to repaire homeward yet the afoirsaid Patrick Murrey of Penneland William Campbell and Robert Hendersone purposed as it appeares to prevent and Stiffle the Jwst tryell of the foirsaid cryme and to Liberat the persones gwiltie therof did without waiteing the said Alexander Dowlls returne or makeing any intimatione to him aither to insist or assist at the tryell appoint and carie on a mock tryell the said William Campbell clerk And the said Patrick Murrey Judge of the foirsaid Jwrisdictione giveing out precepts at the instance of the said Robert Hendersone ther procurator fiscall for summonding assizes and witnesses as wse is in Swch tryells and the said James Murray and Donald Sutherland to ansuer in the said mater All which was Done within Less then thrie weeks efter the deficients decease and without either waiteing for or the Least intimatione made to her husband to assist in the tryell as said is which was certainlie a visible precipitatione and of the worst example and yet was furder aggravat in soe farr that our Alexander Sinclaire appeared and protested against ther said proceedings both in behalf of the said Alexander Dowll and also of the magistrats of Weik who had conveened the said James Murrey and Donald Southerland to appeare before them not for a tryell as is falselie pretended but to cause them find Cautione to ansuer to the said mater befor the Lords of privie Counsell or Lords of Justiciarie which was a verie Laufull practice and might have Served for ane example to the foirsaid Shirreff deput and his clerk and Fiscall But notwithstanding of the said protest and the instruments taken therupon therwith prodwced the foirsaid Shirreff depute Clerk and Fiscall would not desist but went on and advised the relevancie of the lybell Constitute and Swore and assize and took probatione and manadged all in Swch Sort that the Criminalls were assoillzed which being a most gross precipitatione of Justice as said is caried on in soe Short a Space without waiteing for her husband And certainly owt of partialitie because of ther relatione to the pannalls and being of a most perniciows example for Stiffleing and frwstrateing the Just tryell of all crymes ought to be severely pwnished animadverted to and that without regaird to what is or may be materiall in the process And therfore the saids Patrick Mwrray William Campbell and Robert Hendersone being gwiltie airt and pairt of the Same ought to be Severely pwnished by deprivatione from ther said pretended offices and declaired wncapable therof for any Swch trwst for the furutre And furder in ther persone and goods As the Saids Lords of our privie Cownsell Shall think fitt to the example and terror of others to Commit 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 bygone to have answered to the grownds of the above 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 the saids principall lybell or Letters of complaint with the executiones therof in themselvs more fullie proports Which lybell being upon the fiftein of Jwllie Last called in presence of the saids Lords of privie Counsell And his majesties Advocat persewar Compeareing personallie And the said Patrick Murrey one of the defenders Compeareing also personallie And the said William Campbell clerk and Robert Hendersone being Laufullie cited oft tymes called and not Compeareing Compeared Mr Hwgh Dallrumple Mr William Callderwood and Mr Andrew Home Advocats as procurators for the haill defenders The Lybell and answers therto for the said Patrick Murray and his procurator fiscall being red The saids Lords haveing considered the lybell and answers made therto They Sustained the Lybell and ordained the witnesses to be receaved and four of the wittnesses being present at the barr made faith And they appointed a Comitie of ther own number to examine the witnesses and granted furder dilligence by Captione against the absent witnesses The which Comitie haveing accordinglie met and examined Diverse and Sundrie famous witnesses who being all Solemnlie sworne examined and interrogat deponed and declaired As ther oathes and depositiones extant in process bears And the said process being this day againe called in presence of the saids Lords in order to advise the probatione taken therin And the said Sir James Stewart Compeareing personallie as persewar and the said Mr Patrick Murrey of Pennyland ane of the defenders Compeareing alsoe personallie with Mr Hugh Dallrumple and Mr William Calderwood and Mr Andrew Home Advocats for the haill defenders The saids Lords haveing atlenth heard The Lord advocat And the Advocats for the defenders and haveing considered the depositiones taken and wrytes prodwced for aither pairtie in this process They Find ther is no collwsione nor precipitatione proven to have bein Committed by the said Mr Patrick Murrey of Pennyland who is the Judge And therfor have assoillzed the haill foirnamed defenders from the lybell and haill points and articles therof and declares them qwitie therof and free therfrae in all tyme comeing