Procedure, 30 December 1701, Edinburgh

Eodem Die [6 March 1701] post meridiem

D1701/3/12

D1701/3/12¹

Decreet

Decreit Absolvitor Sir William Hope Against Mr William Gordon

Anent the Lybell or Letters of Compleant purchast and raised before the Lords of his Majesties privie Councill Att the instance of Mr William Gordon Balcomie Advocat Elizabeth Wood his spouse Mary Gordon their daughter Jean Gordon and Andrew Edison their servants and Alexander Burnet somtyme Factor to Sir Thomas Burnet of Leyes with concorse of Sir James Stewart His Majesties Advocat for his highnes intrest in the matter underwrytten Makeing Mention That albeit by the constant and Incontraverted Lawes and practiques of this Kingdome the crimes of oppression and obtrudeing on any mans right and possession by open violence Bangastrie and oppression and the Imploying and sending out of officers and souldiers under dayly pay or Imployed and intrusted by his Majestie for the preservation of his majesties Leiges and Defameing them by open proclamations or placades at Church doors wpon the sabath day and Dischargeing His Majesties Leidges to correspond buy or sell with any free Leidge under severe penalties of might and the wounding and beating of His Majesties Leidges as also the illegall quartering of souldiers under his Majesties pay upon any of his Majesties subjects duelling houses and threatning to blow up the same with Gunpouder and not allowing them And his Majesties other subjects to converse and goe in to correspondence with others and threatining to Kill any that should Look out at the windows Be Crimes of ane high nature and severely punishable Especially when the Samen is done and commited by persons intrusted His Majestie for defence and preservation of the subjects rights and possesswrs and peace of the Kingdome and out of a Covetous and sinistrious deisgne to Force any subject out of their Just right and possessions and to compell them by such unjust methods and machinations to make over and Dispone their Lands estate right and possessions at such unreasonable rates as the actors and contryvers therof think fitt to propose be Crimes of ane high nature and severely punishable Nevertheless It is of verity That Sir William Hope Deputie Governour of the Castle of Edinburgh Mr James Balfour sone to the Late Lord Forret Mr George Arnot wrytter in Edinburgh James Harrison Late Comissary of Brechin Thomas Colvill indueller in Craill Corn caster to the Said Sir William Robert Philp younger ther his Bannerman John Coupar there his Bannerman James Bell his officer serjant Hugh Millar in the Castle of Edinburgh John M^cDonald souldier there Thomas Watson there […] M’nab there Heugh Wilson and […] Logan souldiers there and […] Gardiner to the said Sir William and souldier there and Serjant Robert Andersone in Collonell Rews Regiment are guiltie of and have presumed to Comitt the Crimes abovewrytten In so farr as the said Mr William Gordon being in the peaceable possession of the Manner place of Balcomie Yeards and orchyards Doucats and officehouses therto belonging and of the drawing of the teind sheaves ipsa corpora of the Lands and Barronie of Balcombie and Kilminan and of the Fishboats therto belonging severall wherof were bought and Built by the said Mr William himself yet the said Sir William Hope haveing a covetous designe to make a pwrchas of the saids Lands and estate of Balcombie and to force the said Mr Wiliam Gordon persewar out from his right and possession of the same He did fall upon these most unjust and oppressive methods and contryvences underwrytten viz: The said Mr William Gordon haveing Imployed John Dalgarno his servant to Roup the rents of the Lands of Balcombie (The mannor place yeards Doucats Teind sheaves and fish boats being allways Excluded from the said Roup) The said Mr William Imployed the said Mr James Balfour and Mr George Arnot to Ingadge as Cautioners for John Dalgarno for the tackdutie for which the saids estate was Rouped and Caused the said John Dalgarno transmitt his right to the roup in their favours and for their furder securitie against all hazards and Damnages which they should happen to sustain by their undertakeing the said Roup The persewar Did Dispone in their favours not only his right to the Drawing teinds of the forsaids lands But Lykewayes severall Appryseings and other preferable rights which the persewar had aquyred upon the saids Lands and estate and albeit the saids rights granted by the persewar to the saids Mr James Balfour and Mr George Arnot were only deeds of trust and granted for their farder securitie allenarlie as aforsaid and that the persewar had Interpelled them by a Legall Citation to Denude and renounce the forsaids rights so granted on trust in the persewars favours as being more then satisfied by their Intrommissions of all pretences they had to the estate yet the said Sir William Hope Did so farr prevaill with them upon the granted to them of a bond of Warrandice against all hazard To persuade them to transmitt that right in his favours (albeit they were only granted upon trust) for their security as said is wpon his granting to them the forsaid Bond of warrandice against all hazards as said is They should happen to sustain wpon the aaccount of ane Backbond promise or condition made by the persewar at obtaining the saids Rights in manner forsaid Secundo The said Sir William Hope haveing vijs et modis obtained the saids rights established in his person as said is (albeit the matter was rendered Letigious by a proces before the Lords against the said Mr James Balfour and Mr George Arnot Long before the said Sir William his acquisition yet the said Sir William immediatly after obtaining ane assignation from them in manner forsaid Did wpon the tuelth day of December then last by past send a serjant and a partie of his Majesties Forces and under dayly pay with him with ane express warrand under his hand of the tenor following viz yow are furthwith ordered with your partie of four souldiers to goe to the Barne yeards of Balcombie and take possession of the Corn, Barnes, Doucats, Caningyeards and Teind sheaves as ye will be ansuerable sic scubscribitur W: Hope In prosecution of which order abovewrytten The said serjant and his partie Did wpon the fourteinth day of the said moneth of December or ane or other of the dayes of the said moneth of December the toun and Lands of Blacombie and under Cloud and Silence of night brake open the persewers barne doors of Balcombie wherin there was belonging to the persewar above tuenty one bolls of Bear and ten bolls of peas worth Fourtein pund scots per boll and ane hundreth and Fiftie threave of straw worth one Merk per threave all belonging to the said Mr William² Gordone persewar at the tyme And Imbazled and Disposed of it as they thought fitt not allowing the persewar the least share of it so much as one straw for the Mantinance and sustenance of Tuenty six head of Horse and Cattle belonging to the persewar at the tyme by which many of them were exposed to starveing wherby the persewar was necessitat to put the one half off, below the fyfth pairt of their value and not being satisfied therwith Did brake open the doors of the persewars tuo Doucats and spoled the Lockholes therof and Drove Iron nailes and Wedges therin and frighted away the haill Doves out of the same and threatned to kill and Murder the Fishermen belonging to the persewars Boats Because they refused to Deliver the said partie the proportion of Fishes belonging to the persewar in the saids Boats and by Force violence and open Bangastrie Intrometted with the proportion of the persewars Fishes for Fourty one dayes togither And the said Sir William Hope not being satisfied with the acts of injustice and oppressioin abovewrytten But apprehending the persewar would seek a Legall redress before a Judge Compitent The said Sir William as a farder evidence of his Malice and envy against the persewar Did cause read publictly at the kirk doors of Craill and Kingsbarnes and therafter cause affix Coppies wpon the saids kirk doors of the tenor following I Sir William Hope Depute Governour of the Castle of Edinburgh Heretable propriator of the Lands and Barronie of Balcombie and Kilmman By Appryseings and Infeftincy of anwallrent Inhibits all and sundrie to Buy sell or otherwayes have Dealling with Mr William Gordon pretended heretor of Balcombie Therby in plain termes Inercommuning the persewar albeit by the incontraverted Lawes and pratiques of this Kingdome Intercomuning is only compitent to His Majestie and the Lords of privie Councell so that the useing of such placades publictly was a doun right Incroaching upon his Maejstie and his Authoritie Competent to His Majestie and the privie Councill allenarly exclusione of all others By which unjust and irregular practises the Countrie people were so afrighted that the persewar and his Family were Reduced to so great straits that theywere almost at the poynt of starveing by reason non within these tuo paroches would aither buy or sell with the persewar even for readie money and the Milner of the Barronie of Balcombie was so terrified by being expresslie Discharged by the said Sir William himself The said Mr James Balfour and James Fairfoull That he would not presume to grind any of the persewars cornes for his oune use and no other person in the Countrie would presume to medle with the persewar or to supplie him and his Family in the least for fear of the Hazard of the said Sir William his severe placade and Intercomuning And after the persewar had applyed to the saids Lords of privie Councill and after a full hearing of Sir William Hope~~s~~ and his Lauiers in presentia at the Barr obtained a warrand first from the said privie Councill in presentia and then from the Lords of session for removeing the said partie yet the said Sir William still persisting in his old Malice against the persewar Did upon ane pretended warrand Impetrat by himself from the sherriff deput of Fyff send a new partie of souldiers under His Majesties pay in the Castle of Edinburgh under the Command of Serjant Robert Andrew in Collonell Rous Regiment to continue his former oppression against the persewar in mainer abovewrytten and therafter he sent another partie of souldiers under the Command of the said […] M’nab and John M’Donald who did quarter upon the tenents of the saids Lands of Balcombie and by open Force and violence extorted dry quarters for them contrair to the Claim of Right and Did threaten to Kill or Murder the tennents unles they would Yoke their horses and Cairts and cary away the persewars Cornes and forced them to cary away the same both corne and Fodder without aither prooffing the same or telling the threaves therof And of new again brake open the persewars barne doors and did cary away the Cornes therin with all the Flailes, Rackes, Keyes, Sacks, Canvasses and other materialls with them all which they did say was by warrand from the Lords of Councill and session Which the said James Fairfoull did read to the saids Tennents and that the Lord presidants hand and all the rest of the saids Lords hands were at the same and Did Cutt and destroy about threttein great growing trees about Fourtie years old at least and Burne them in the Barnes then full of Cornes and did fall upon the said Mary Gordone a Child of tuelve years of age The persewars Daughter and thrust and threw about and Disjoynted her arme with that violence That being Disjoynted It instantly suelled so extreamly That for many dayes therafter she was not able to make use of the same Lykeas The persons above Complained upon did upon the […] day of Feburary last or ane or other of the dayes of the said Moneth fall upon the said Alexander Burnet and gave him any Crewall and Bloodie wounds wpon the head and Blae strocks wpon the bodie and left him for dead wpon the place so that his life and recoverie was Dispaired of Likeas wpon the thretty day of July last bypast or wpon ane or other of the dayes of the said moneth The said James Fairfoull being expresly Imployed and hounded out by the said Sir William Hope Did come to the Harbour of Fyffness where Jean Gordon the persewars servant was uplifting the pettie Customes wherof the persewar had bein in possession for many years preceiding and after many execrable oaths and villanous obsene ~~Language~~ and opprobrious expressions what are unworthy to be named or heard among Christians) He did most Crewelly and Barbarously fall upon the said Jean Gordon And with a staff or Batton of prodigious biggnes and therwith so Crewelly and Barbarously Beat the said Jean Gordone wpon the Back, sides, and armes That for many dayes therafter she was not able to stand goe or walk abroad But keeped her bed Continueally Dureing which time her recoverie was Dispaired of by many persons As Also wpon the second day of August therafter The said James Fairfoull did with the forsaid Rung or staff most Crewelly beath Andrew Edison and others the persewars servants so that for many dayes therafter he was rendered Incapable to goe about his work and Bussines as formerly and therafter the said James Fairfoull Did offer to kill him dead because he was murmering and complaining of the severe stroaks he had received from him Likeas wpon ane or other of the dayes of the said moneth of August When Elizabeth Wood the persewars wife was uplifting the small customes of Fyfeness The said James Fairfoull did draw a pistoll and threaten to kill the said Elizabeth and being informed that the said Elizabeth had uplifted some of the small customes at Fifeness He did fall upon her and strained and Backbended her Fingers and held her in great pain and tormet untill he and some of the Castle souldiers that were with him by open Force and violence Robbed all the mony that was upon her at the time and haveing drauen a pistoll and offered to shoot ther persewars wyff and she haveing asked how he cam to wear armes since he was not Quallified in the termes of the act of parliament The said James Fairfoull did Answer most insolentlie That he did not care (with a great deal of Deference to his Majesties Commissioner and the Lords of privie Councill) a fart of his arse for all that the parliament could doe and that he would cause Sir William Hope send a greater partie of Castle souldiers to call up her Baggage and Immediatly therafter fell upon Jean Gordon the persewars servant and beat her most Crewelly with a great Batton And about the tuenty day of August last bypast when the persewars wyff was gathering up the teind lint wherof the persewar had bein in possession for many years preceiding The said James Fairfoull did come to the ground and after many opprobrious threatnings and Expressions Did by Force and violence cary away the haill lint that was upon the ground both stock and teinds and Disposed therof as he pleased Lykeas wpon the tuenty sixt day of August or ane or other of the dayes of the said Moneth The said Sir William did send John M’Donald and Thomas Watson tuo of the souldiers of the Castle of Edinburgh to the said toune and Mains of Balcombie with a number of others their associats who broke up the persewars Barne doors and took possession therof at their oune hands And forced the tennents of the Barrony of Balcombie to furnish them with bedding and other necessars Threatning to ruine and destroy all those who would not obey their unjust Commnads and actually forced many of the saids tennents to give them dry quarters and contined so sorneing wpon the saids tennents untill the sixteinth day of october therafter By all which the said Sir William Hope and the other persones above Complained upon are guiltie at least actors, At least as airt and pairt of the Ryots violence and oppressions and others above Complained upon For which they aught not only to refound and pay to the persewar the soume of Tuenty thousand Merks as Damage loss and prejudice sustained by the persewar throw the forsaid illegall procedure Injustice and oppression and in the mean tyme he Discharged for any wayes medling with the Maills, fermes and duties of the saids Lands dureing the tack sett by the Lords of session But that the profites and Emoliments therof may fall and appertain and belong to the persewar But likewayes to be furder punished in their persons and goods to the Example and terror of others to doe the like in time comeing And Anent the Charge given to the saids Defenders to have Compeared before the saids Lords of privie Councill at ane Certain Day bygone To Answer to the forsaid Complaint and to have heared and seen such order and cowrse taken theranent as Appertained With Certification as in the principall lybell or Letters of Complaint raised in the said matter with the Executions therof at mair Length is contained And sicklyke Anent the Letters of Reconvention purchased and raised before the saids Lods of His Majesties privie Councill Att the instance of the said Sir William Hope Depute Governour of the Castle of Edinburgh James Fairfoull of Kildruman Factor to the said Mr William Hope and James Bell his officer with Concurse of Sir James Stewart His Majesties Advocat for his highnes intrest In the matter under wrytten Makeing Mention That by the Laues of this and all other weell Governed Realmes all violence Bangastrie and oppression to the disturbance of persons in the Laufull possession of their Rights and goods are Discharged Lykeas all men are bound and oblidged to behave themselves peaceablie and orderly and not to molest others in their persons or goods by Laules violence and wickednes nor to defame and vex them by false Calumnies and Malicious persutes and for any to presume to doe in the contrary therof in a Laules ragefull and Barbarous behaviour are crimes of ane high nature and severley punishable Nevertheless It is of verity that Mr William Gordon Advocat and Elizabeth Wood his wyff Mary Gordon their Daughter Jean Gordon and Andrew Edison their servants Alexander Burnet somtyme Factor to Sir Thomas Burnet of Leys Robert Law servant to the said Mr William Gordon James Key tennent in Coltoun of Balcombie Janet Stewart spouse to William Corstorphine Taylor in Craill And Alexander Lumsdean alias Gray steull their accomplices are gultie of the saids Crimes of violence Bangastrie oppression Molestation and wicked Calumnie In so farr as the said Mr William Hope being Tacksman of the estate of Balcombie which under proces of sale before the Lords of session was by them sett by way of Roup and the said Sir William haveing also acquyred severall other rights and Dilligences upon the said estate and the said Mr William Gordon haveing not the least pretention therto aither as to the right or possession yet the said Sir William Taxman in mainer forsaid haveing in the moneth of Janwary one thousand and seven hundered order his Factor […] To cause the tennents of Balcombie and Kilmman Deliver a certain quantitie of their Farme Bolls to the Merchant to whom he had sold them The said Mr Wiliam Gordon Did by ane Letter from Edinburgh Direct to the said Alexander Burnet his Factor or dooer ordered him to Discharge the whole tennents of Balcombie and Kilminen to Deliver any victuall to Sir William Hope or his order ordaining farder that if the saids tennents should not obey his Commands as their master Then the said Alexander should Imploy all the assistance he could get to make the same effectuall In obedience to which Letter Alexander Did upon the first second or one or other of the dayes of Feburary Jaivijc Discharge the whole forsaid tennents to Deliver any of the Farmes to the said Sir William or his order And Because they were not willing to obey his unjust Commands He Convocat a Rable wherof Mr William Gordons oune servants was a pairt And by all the rudenes and violence Immaginable offered to stopp the Deliverie of the saids Farmes Takeing away the keyes of the tennents Barne doors Cutting their sacks, Thowing in Chaff, sand and Dust amongst their Dight cornes Caryeing away their seves and Ridles and Committing many other abuses against them and when the persewars servants cam to assist the tennents The said Alexander and his accomplices did assault them with fire armes and suords and paricularly the said Mary Gordon Tho not above tuelve years of age brought along with her ane long houshold knife and therwith offered to thrust one of Sir Williams servants in the Back if the man had not prevented her by takeing the Knife from her and the said Mr William persisting in his forsaid violence and molestation Did in the moneth of March the said year J^aj vj^c Conveen the saids haill tennents as if he had bein Heretor and Barron of Balcombie and told them that if they mynded to conintue their posessions They most gratifie and acknouledge him as Heretor otherwayes he would warne and Remove them Likeas De facto he did warne all such who did not compone with him so that had not extraordinary pains bein taken to conveine the tennentry that Mr William had no right But must himself remove These molestations with Mr Williams other insolences practised upon them had forced many of the tennants to desert and had laid the half of the Lands waste But Mr William being restles in his wickednes and rage proceided yet farder in the moneth of May last and the teind fishes of Fifenes being then offered by the toun of Craill They were taken by James Fairfoul in Kildunian as they highest offerer for Sir Williams Behove But when the said James went at Whitsonday therafter to take prssession of the said teind fish The said Elizabeth Wood appeared with a great Rable of men and women and in a violent and insolent mainer took away the Fish and when the next day Therafter James Fairfoull had caused one draw the said Teind The said Elizabeth Wood went to Fifenes and broke open the house where the Fish were and violently took them away with a poor womans fish nett, and thus the said Mr William did by Bangastrie continue to hinder James Fairfoulls possession till the moneth of August and then James Fairfoull comeing the time of the Herring drove to uplift the custome and anchorage due to him as taxes The said Mr William Gordon and his wyff with their oune servants and accomplices Fell upon the said James Fairfoull and his men and Beat him with the hazard of his Life And farder the said Mr William brought from the north a Laules rude fellow one Alexander Lumsdean alies Grey steull to head his forsaid partie and the Alexander Lumsdean did fall upon the said James Fairfoull and Beat him with a great treee upon the head wherby he with the said Elizabeth Wood and their Complices had probablie dispatched him if he had not being rescued by good Nighbours And furder upon the Fyftein sixtein or ane or other of the dayes of August last The said Elizabeth Wood her Complices did goe to the house of one Euphan Bell in Lanemasgreen in Craeill about fyve of the Clock in the morneing Haveing the saids James Lumsdean with her and there made search for James Bell Sir Williams officer and not finding him They Assaulted the poor woman and her Child in bed with a great Batton Threatning her with Death or at least the Cutting of Her Husbands ears if they offered to come upon the Lands of Balcomie and the fright was truely such against the poor woman That to this day she hes not recovered her health and Judgement But Elizabeth continues the progres of her violence to Fifenes where She threatned to Burne the toun from one end to the other if any of the saids Fishers should pay any of the said teind to Sir William and tho wpon this Ryot the said Mr William and his wyff being persewed before the shirriff of Fife were being Lawburroues yet they have since continued the violence and committed far greater Insolences and Ryots For the saids Fishers haveing payed some small thing the time of the Herring drove Mr William Gordon with his wife sone and servants and Complices did on the Fourtein Fyftein or ane or other dayes of the moneth of october last goe to the toun of Fifenes and there in a Barbarous manner and with many oaths Mr William Did assault […] one of the poor Fishermen with a drauen suord in his oune house and thrust at him to kill him untill Mr Williams oune wyffe and servants moved at his maddnes Mastered his suord which so inraged him that he threw and crewelly trade her in a pudle and then returning to his Malice and rage against the said Fishers He with his accomplices gott up to the rooffs of their houses and so Turred them that they could not be inhabited and did also Robb and awaytake their netts and other things out of their houses, and so terrified the poor women and Children that few of them cam within their oune houses that night least he had set Fire in the toun as by many oaths he had threatned And within a day or tuo therafter he Returned with his Complices to the said town of Fifenes in the same distracted madnes and with execrable oaths suore that if there were a soule of them found there after tuenty four hours He should burne the toun and all they had which did so terrifie the saids Fishers their wives and Children That they fled the next day to the toun of Craill for shelter where they still remain and about the same time Robbed and took away from […] a last of Herrings and carried them to the house of Balcombie where he yet detains them as a letter from the Baillies of Craill to George Moncreiff their Commissioner in December last ready to be produced will testify and farder he did so draw wp their Boats at full sea that the men could have no use of them and are with their families Crewelly reduced to Beggarie and for all this wicked and unparraleld violence The said Mr William had naither pretext nor provocation save that the said toun of Craill had sett their teind Fishes wherof he had bein ane Taxman to the said James Fairfoull be a Fair Roup But farder in the said moneth of october the said Mr William Gordon again conveened the tennents of Balcombie in a pretended Court without any shaddow of right and there again thraitens to remove them frceing them to give him mony to continue their posessions and when any refused he offered to dispossess them by causeing others streak pleugh in their Land and threatning to take their cones and stock wpon the ground for payment of bygone rests tho he hath not the least title aither to the possession or rests But belonged to Sir William Hope as undoubted Tacksman and withall he discharged the saids tennents under their highest perrill to deliver any pairt of their Farmes to Sir William or his order so that a greater and more violent track of Molestation and insolencies can hardly be instanced and yet the said Mr William Gordon and his Wife have the Impudence to have raised before the saids Lords of privie Councill a most Calumnious Libell against the said Sir William and his Factors and servants as if in the prosecution of his Just right and possession and executeing Legall orders theranent and Mantaining the publict Justice of the Nation he had committed manifast violence Molestation and oppression against the said Mr William, His Wife and accomplices and determined or at least will be found to have bein done and acted purely in Necessary defence of himself and his Just right possession as his ansuers to their said most false and Calumnious Lybell will evince But besyds all this violence oppression Clamour and Calumnie that Mr William Gordon and his Wife are guiltie of agaisnt the said Sir William They have farder proceeded to wrong and ruine his Reputation if it were in their pouer by most reproachfull and slanderous prints publishing therin most Black and horrid lies purely of their oune Invention and for his defameation as if he were the most violent rude Laules and Barbarous man in the Earth Concludeing their most calumnious Charge of arrogance and denunciring against him with these express words That he is not worthy to bear the Commission he hes from His Majestie By makeing so badd use therof To the Reproach of the armey and the peace and quyet of the subjects Which if not prevented by a suteable ~~and~~ punishment will certainly end by Cutting Mr Williams and his whole Families throats a most wicked and bloody reproach Especially considering that the outmost pretext that ever Mr William and his wife had in the matter hath bein fully recognosied and tryed by the Lords of Civill right remitted by the saids Lords to the Lords of session where it hath also been fully heared and is wpon the poynt to be determined By all which it is evident That the said Mr William Gordon Elizabeth Wood his wife Mary Gordon their Daughter Jean Gordon and Andrew Edison their servants Alexander Burnet Robert law James Key Jannet Stewart and Alexander Lumsdean alis Graysteell their Complices abovenamed ar guiltie airt and pairt of all the violences oppressions Bangastries Calumnies and slanders abovementioned Which being proven they aught not only to be severely punished for the same in their persons and goods and also Decerned to pay and make up Sir Williams Damnages and charges But Likewayes Sir William and his men tennents and servants togither with the publict peace and quiet of the countrie aught to be secured for the Laules and unaccountable rage and Malice of the said Defenders By such methods and in such manner as the Lords of privie Councill shall find Just to the example and terror of others to committ the like in time comeing And Anent the Charge given to the fore named persons defenders to have Compeared before the Lords of our privie Councill att ane Certain day bygone To have answered to the forsaid Complaint And to have heard and seen such order and course taken theranent as Appertains With Certification As in the Libell of Reconvention and Executions therof raised in the said matter at mair length is contained The said principall Lybell and Lybell of Reconvention being both called, in presence of the Lords of His Majesties privie Councill upon the Eighteinth day of February last bypast And the said Mr William Gordon and his said Lady Compearing as persewas and the rest of the persewars in the principall Lybell being absent oft times called and not Compearing And Sir David Thoris Mr Francis Grant and Mr Alexander Abercrombie Compearing as Advocats for the haill persewars And Sir William Hope Mr James Balfour James Bell and James Fairfoull four of the Defenders Compearing personally with Sir James Stewart His Majesties Advocat Mr David Dalrymple Sir Walter Pringle Mr James Nesmith and Sir John Erskine Advocats for the haill defenders who are raisers of the reconvention as said is Gave in the Ansuers Following to the said principall lybell, The said Mr William Gordon and his wife have not cased from a continued harrassing vexing and disturbeing Sir William Hope his Chamberlane and tennents ever since he becam taxman to the Lords of Session in the Estate of Balcombie and otherwayes had reall rights upon the estate: And not only have they bein oppressive disturbers of his possession as will appear by the Lybell that Sir William hes bein forced at last to raise against them But have vexed him continwally with Malicious Groundles and Calumnious Complaints before the Councill session and parliament which all cam to nought out of no other designe But to traduce him and to wrong and ruin his reputation if it hade bein in their pouer and out of a secret envy Because in all Lickliehood the estate most now goe for payment of the Just Creditors Wheras Sir William hes done nothing but what hes already bein cognosied or determined or wpon the necesary defence of his right and possession and this Libell is so farr out of rule That he is endeavouring to bring before the Councill points of Civil right which aither are already determined or depending before the Lords of session and hes Lybelled the same things over again which were formlery cognosied before the Councill In ansuer ther to the Lybell Wheras he pretends that the last roup of the Lands of Balcombie was for his behove and that the rights granted to Mr James Balfour and Mr George Arnot were only dieds of trust and that they were more then satisfied by their Intromissions of all pretences they had to the Estate and that therfore they aught not to have made over the Tack and other Rights to Sir William and thence concludes that they and the said Sir William aught to be discharged from any wayes medling with the maills fermes and duties of the Lands Dureing the tack sett by the Lords of session And that the profites and Emoliments therof belonged to the Complainer It is Ansuered that this pairt of the Lybell is purely Civill and not only so but in a Removeing persued at Sir William Hopes instance before the Lords of Session And a Declarator of trust preserved by Mr William Gordon before the saids Lords this matter of trust hes bein already fully debate and severall Interloquitors pronounced therin Wherby Mr James Balfour and Mr George Arnot are Assoilzied from his Declarator and the Lords have found Mr William Gordon hes no right to the excess profites of the Tack so that it is Admiried with what Confidence the Compainers can make this pairt of a Lybell before His Majesties Councill And seeing this is the only ground of Complaint Lybelled against Mr James Balfour and Mr George Arnot The Lords of Councill would take notice how groundlessly he hes cited them in his Libell and put them to unnecesary Charges by calling them from their bussienes and affairs in the Countrie and accordingly would redress the abuse and make up their damnage Wheras it is alleadged secundo That Sir William Hope did send some souldiers from the Castle of Edinburgh to the teind barne yeards of Balcombie with a wrytten warrand as is mentioned in the Lybell and that these souldiers did brake open the Barne doors with some other exagerations mentioned It is Ansuered That Sir WIlliam could fully clear himself of this Lybell by demonstrating that he was useing his oune right at least had a probability so to doe for he had dispositions to the teinds from Mr William Gordon himself in security of considerable soumes of money due to him Not only so but there was ane act of sequestration of the teinds Because that Mr William Gordon was Imbarkeing and disposeing theron notwithstanding he was denunded as said is By vertue of which Sir William thought himself sufficiently Impoured to defend the sherriffs sequestration and it is false that aither the teinds were dispersed wpon by Sir Williams men or that the Barne doors were broke open But allenarly Mr William was keept from Imbazleing the teinds And disperseing theron as he had done formerly To doe which Sir William had a probable ground from the act of sequestration and if he did wrong in this it was meerly out of Ignorance haveing the sherriffs act and he endeavoured since to doe all things most Cautiously and warrantablie But seeing this poynt of the Lybell was alrady the ground of a former Complaint to His Majesties Councill and fully cognosied Sir William founds his defence wpon res hatenus Judicata As appeared by ane extracted act of Councill produced Containing ane Remitt of the poynt of Right to the Lords of session and was so farr homologat by Mr William Gordon That he hes proceeded to debate the right before the Lords of session wpon the forlaid Remitt Wheras It is fwrder alleadged in the Lybell that Sir William Hope had proceeded to Intercomune the persewar and to affix placades wpon the Church doors and wherby he and his family were much prejudged as narrated in the Lybell It is Ansuered That this is a most groundles storie and wherin Mr William Gordon was the only guiltie person as will appear by the Lybell of Reconvention For Sir William becomeing the Lords Tacksman as said is and haveing other rights to the estate Mr William Gordon Did most insolently and illegallie presume upon him to discharge the tennents from payment of their farmes to Sir William under Certifications and threatnings and telling that he was the true propriator and possessor Notwithstanding the Estate hes bein under sequestration and Factorie these thretty years bypast Which so affrighted the tennents that they would make no payment to Sir Williams Chamberlain so that he was necessitat to make Intimation of his becomeing the Lords Tacksman And that they aught to pay their farmes to the Tacksman as formerly and that if they made payment to Mr William Gordon or any other person They would be in hazard of double payment And this was thought reasonable to be done at the Church door Because of the many tennents within the Barronie and such Intimations are sometimes made when aither the Lords Appoynt a Factor or setts ane estate by Roup Nor is there any illegallitie in it farr less inference of a Ryot But appeared to be necessary in this Circumstances cause And furder Mr William Gordon Represented the same ground of Complaint before the Lords of session which when Sir William was readie to ansuer he insisted no farder But suffered it to fall And was only designed to traduce and Calumnat Sir William after Mr William Gordons usewall way The Complainer furder alleadges that after there was a warrand for Removeing Sir William did by ane new pretended warrand Impetrat from the sherriff of Fife send a new pairtie and therafter a third under the Command of one M’nab and John M’Donald who did quarter upon the tennents and used other acts of violence mentioned in the Lybell and Did force them to cary away both Corne and Fodder and which was pretended to be done by a warrand from the Lords of Councill and session and that Mary Gordon the persewars daughter had her arme Disjoynted and that Alexander Burnet the Compleaners servant receaved stroaks and wounds wpon his bodie with some other aggravationes mentioned To which It is Ansured That Sir William Denyes the sending of any partie after the warrand for Removeall and the truth is there was no formal warrand But Sir William did of his oun accord after he was instructed that the sherriffs warrand aught to have bein obtained wpon the Sherriffs act of sequestration and that second partie mentioned was truely a partie Immediatly sent by the sherriff himself for putting his oune act in Execution with whom Sir William had no concerne And altho these might have legally continued yet after he fell into debate before the Lords of Session wpon the point of right he Condiscended that the sherriff officers should remove and Leave the possession of the teinds to Mr William Which was Immediatly done and no prejudice sustained nor any violence used The sherrifs partie being only there to see the act of sequestration observed but not to medle And as to a third pertie mentinoed There was never any and Sir William presumes that by mentioning the names M’nabb and John M’Donald that this was the Legall poynding which Sir William was obleidged to use sometime therafter upon the personall debts due by Mr William Gordon to him for which he had no reall securitie and wherof he saw no visible payment But by the said poynding and Sir William hes the execution of poynding ready to produce and can instruct and that all was formally done And as to the brakeing of the Barne doores it is indeed true But this was by vertue of second Letters under the signet obtained for that effect which is usewall and was necessary here for after the Messinger had Apprysied the cornes in the Barn yeards The Complainer after his oune illegall way seized wpon the Cornes and caried them into Locked Barnes so that Sir William was forced to procure the second Letters And the Messinger did not cary off the Cornes till the same were threshen to the prooff All which is ready to be instructed by the Letters and Executions and witneses therto if needfull and this same pairt of the Lybell was Lykwayes the ground of a petition to the Lords of session Which when Sir William was ready to ansuer and to shew the Invented Calumnies of the Complainer he desisted As to the alleadged hurt done to the defender and Beating of Alexander Burnet the true matter was That Mr William Gordon haveing taken upon him to Dishcarge the tennents to pay their farmes to Sir William under severe threatnings and that he would remove them from the ground and Sir William haveing sold the victwall to Merchants when the same was to be put aboard the Complainer hounded out his servants and family who endavoured to hinder the tennents from caryeing away their farmes and when they could not prevaill they fell a Cutting the sacks and throwing in of Dust and dirt among the corne Cutting a brakeing of the seives etc And if Sir Williams servants and tennents did defend themselves in such unheard of villanies and the persons hounded out by the Compleaners got any hurt therby They had themselves to blame, The Daughters young years did not hinder her to offer to stobb one of the tennents behind his back with ane Kitchine knife she had brought alongs with her the wresting of which out of her hands which was all that was done wher was the disjoynting mentioned in the Lybell and such was their evill designe that the other servants were armed with pistolls and suords some wherof was taken from them by Sir Williams Chamberlain and servants which he hes now in his custodie But this being a part of Sir Williams Reconvention against Mr William Gordon it will be made appear that he is the alone author of any Mischeiff that befell and was continwally Imbroyling all about him The last pairt of the Lybell is a ground of Complaint against James Fairfoull for his opposeing as is alleadged the Complainer and his wife to wplift the teind of the Fishes in Fifenes with the aggravators and acts of violence therinmentioned and some Incident expressiones and alleadgeance of his caryeing away by violence the Teind lint to which the Complainer had right It is Ansuered that it is admirable with what Confidence and Impudence the Compleaners assert thing where they themselves were the attackers Intruders in to other peoples rights and possessions and the along authors of all the violence that was used For the teind Fish of Fifenes doe belong to the toun of Craill and the Laird of Barnes These are in use annually to be sett by roup and this last year James Fairfoull Sir Williams Chamberlain got the tack as being the highest bidder which Mr William Gordon was so displeased with being Tacksman the former year that he would by force continue his possession and whyll they could not prevaill with the Fishermen to pay the teind duty they at severall times rest by Force the Fishes from the fishermen and particularly carried away by Force out of a por mans house a last of Herrings and not only so But came wpon them in their houses and Beat them and tirred the Roofs off severall of their houses so that they were oblidged to forsake the place of which the magistrats Complained heavilly by a Letter to the representative of their Burgh in parliament which was produced The said Mr Williams Wife and a servant of hers did offer to gather the Customes and Interrupt the tacksmen therin and that in a violent way all which will be made Clearly appear by Sir Williams reconvention raised against them and if they got any hurt They had themselves to blame for there was nothing done But upon Just defence and Mentinace of the defenders true right and he denyes that he had any such expression as Lybelled And Lykwayes denyes hes medling with or disposeing in the least of the teind Lint In Respect of all which And that this whole Lybell is evidently out of Malice against Sir William and from a most froward Wretched and Maligne temper in the Complainers It being Sir Willams great misfortune and unhapines to have to doe with such people The Defenders aught to be Assoilzied from the Lybell and the persewars punished as becomes And such measures taken by the Honowrable privie Councill as may prevent the defenders being continwally thus vexed and harrassed in their possessions and rights by the attempts of Lauless and unreasonable people and particularly the saids Lords of privie Councill were intreated to consider the caise of poor tennents and Fishers whome he hes Cited over of purpose to harass them And that the Lawbouring is farr back The farme victwall which they are to pay spoyleing on their Lands And many of them litle better as starveing in this place As the saids Ansuers Bears And the Reconvention at the Instance of the said Mr William Hope James Fairfoull and James Bell Agaisnt the said Mr William Gordon and his spouse and Daughter and Jannet Stewart spouse to […] Corstorphine and her husband for his intrest being also called in presence of the saids Lords And both parties haveing Compeared or beign absent as Marked in the Roll The persewars in the principall lybell who are defenders in the Reconvention Gave in the Ansuers following to the Lybell of Reconvention Viz: The said Mr William Gordon haveing raised a Complaint before the saids Lords of privie Councill against Sir William Hope and some of his accomplices for severall atrocius Ryots and violent Injwries Committed by Sir William Hope and the same being insisted before the Lords of privie Councill Their Lordships were pleased to Remitt the Civill Right to be discust by the Lords of session before they would proceed to advyse and give their Decreit anent the Injuries and violence Lybelled and insisted wpon Albeit Mr William Gordon did with all submission acqueisce to their Lordships Interloquitor yet Sir William Hope becam therby so insolent as ever since that time to committ new Ryots and insolencies against Mr William Gordon and others of his Family and for which Mr William Gordon was necessitat to raise a new Complaint before their Lordships and would undoubtedly prove the haill articles and Circumstances therof But Sir William Hope hath Raised this Reconvention of purpose to raise dust and Claour upon him in manner Lybelled And as to which Reconvention and every particular thing The ansuyers following are Repeated viz: To the first That Alexander Burnet did actwally stopp the caryeing off the victwall in February Jaivijc It is ansuered That Mr James Balfour and Mr George arnot being Tacksmen of the Estate of Balcombie and Mr Williams Trusties and they haveing contrair to the Faith REposed in them dealt very unworthily with him He was necessitat to raise a proces of Declarator of Trust against them and their Assigney And did wpon the dependence of the said action arreist that years haill fermes in the tennents hands and applyed to the Lords of session for sequestrating the Farmes untill the event of the cause But in the mein time Sir William Hoe of his Cedents sends parties of souldiers and Forced the Farmes from the poor tennents notwithstanding of the arreistments lyeing in their hands And all that Alexander Burnet did was to advertise the tennents not to deliver their Farmes untill the arreistment was was³ Loused or that they had the Lords of Sessions warrand for that effect Yet Notwithstanding therof the Farmes were caried away by Sir William so that he hes no Imaginary pretence for any Complaint against Alexander Burnet on that account Secundo albeit Alexander Burnet had a pistoll on his Belt yet Naither is Lybelled nor can be alleadged that the did offer violence to any person with the said pistoll But on the contrair when Sir William Hopes Emmisaries had wounded and beat the said Alexander Burnet to the Ground James Bell and others did pull the pistoll from his belt of designe therwith to have murdered him out right which certainly thy would have done if the pistoll had gone off at that time And therafter the said James Bell haveing fired at him and missed him he and the other persones above Complained upon Did wound him in the head that his Life was dispaired of and as there was no violence or Injurie done to any person The hight of Sir Williams Malice may appear in this that he Lybells and persews a poor young Lady about ten years of age as guiltie of a hynous Ryot But notwithstanding Civill interruption was made as above said Sir William himself cannot say but the victwall was suffered to be caried off As to the second Anent Balcombies holding of Courts and etc It is ansuered primo That there is no violence Lybelled in the said article nor can any crime be inferred from his holding of Courts he and his producessors and authors being in possession therof past memorie of man nor can any Crime be inferred for holding of Courts Especially considering that by the tack sett to Randerstoun and Mr Arnot Sir Williams Authors The haill teinds Fishings, Mansion, house, yairds, parks, and etc and what else Mr William was in possession therof are per Expressium excepted and reserved as to the third anent the Teind Fishes It is Ansuered primo That Mr William Gordon and his authors being in ane unquestioned uncontraverted possession of the saids Teind Fishes past all memorie of man Mr Williams Lady was oblidged not to see his possession summarly Inverted in his absence and there will be nothing found therin of any moment to trouble such ane honorable Court therwith Secundo Mr Williams Lady was conveened for the same before the sherriff of Fife and there being probation ledd by witneses there was nothing proven to Inferr any sort of Ryot As to the alleadged takeing away a Nett from a woman and etc It is ansuered primo Mr William Gordon was not present at the time and secundo The nett was freely delivered as a securitie for her house rent and becaus it was not worth the rent It was ex incontinents given back to the woman herself As to Alexander Lumsdeans alleadged beating of James Fairfoull It is ansuered that the said James Fairfoull being knoune to be ane Debauched and quarrelsome person he cam with a great pike staff or Batton and did beat a Gentlewoman who stayed with Balcombie who was a Relation of Mr Lumsdeans and he haveing told Fairfoull that it was unbecomeing a Gentleman to beat a woman he Immediatly fell upon Mr Lumsdean and with the said pikestaff or Batton did beat him to the ground and gave him many bloodie wounds which is offered instantly to be proven by the witnesses and as to the other representations against Balcomie he shall make no other ansuer til probation be taken and how unbecomeing of a Gentleman it is, will be found when all is Laid open before their Lordships But if Sir William still persist in these wayes haveing since fryday last sent off more souldiers to oppress the poor tennents Balcombie hes no other Method left But to Cast himself and whole Family wpon the Lords of privie Councills Justice And this by rude souldiers And particularly that Rude highland fellow John M’Donald, As the saids Ansuers also Bears Both the saids Lybells principall and Reconvention with the ansuers given in to aither of them being read In presence of the saids Lords of His Majesties privie Councill And both parties procurators being heard to debate at full length at the Councill Barr The saids Lords of His Majesties privie Councill Nominated and Appoynted a Committie of their owne number to examin the witneses Reserveing all objections which might be made against them to be proponed and discust before the Committie And the Advocats for William Gordon and the persewars of he principall Lybell Haveing produced a testificat under the hands of Mr William Hardie Minister of Craill upon Credit and Conscience of the Indisposition of Mr John Lindsay of Wormiestoun with another testificat under the hand of Mr Robert Wood Doctor of Medicine upon soule and Conscience of the Indisposition of Mr George Arnot a Defender in the principall Lybell with a third testificat under the hands of the said Mr William Hardie wpon his Credit In favours of george Dishingtoun Clerk of Craill And the Councill haveing considered these testificats They Excused the absence of the sair Mr George Arnot one of the defenders in the principall Lybell and of the absence of the said Mr John Lindsay of Wormistoun and of the said George Dishingtoun tuo of the witneses cited in the principall Lybell and both parties procurators haveing Craved Certification against the absent defenders in their respective Lybells The saids Lords Granted Certification against the haill absend Defenders in the principall Lybell as they are marked in the Roll Except Mr George Arnot wrytter in Edinburgh who was absent and is excused In respect of the testificat produced And Granted Certification against Mary Gordon and Jannet Stewart spouse to […] Corstorphine Merchant in Craill And her Husband for his intrest And ordained Letters of Denonciation to be direct against the absent defenders in both the saids proceses In respect f their absence and not Compearance And ordained Macers of privie Councill or Messingers at armes to pass to the Mercat Cross of […] and therat to Denounce the saids defenders in both proceses His Majesties Rebells and put them to the horne And ordain all their moveable goods and gear to be Escheit and inbrought to His majesties use for their Contempt and disobedience And Granted farder Dilligence by Caption against the haill witneses Called and not Compearing in the principall Lybell as they are marked in the Roll Except the said Mr John Lindsay and George Dishingtoun who are excused as said is And Assigned to the saids persuers of the principall Lybell the […] day of […] for doeing of the said farder dilligence And Declared a quorum And Appoynted a dyet to the Committie to meet Conforme to the above Interloquitor and the Committie haveing mett They took and receaved the oaths and depositions of Diverse and sundrie famous witneses adduced by both parties for proveing the poynts and articles of their Respective Lybells who being all solemnly suorne Interrogat and examined Deponed and Declared as the oaths and depositions of the saids persons Extant in proces bears And the Lords of His Majesties privie Councill haveing wpon this day Advysed the above mutuall proceses both of principall lybell and Lybell of Reconvention and haveing considered the wrytts produced for aither pairtie in aither of the saids Respective proceses And haveing read and considered the depositions of the witneses adduced in aither proceses by aither partie And haveing read the Informations for aither partie in the saids proceses The saids Lords Finds that poynt that Sir William Hope made use of souldiers in the sequestration is alrady Judged and Cognosied by the Remitt of Councill dated the tuenty one day of December J^aj vj^c Nynty nyn And the Councill finds that the poynding used by Sir William Hope was Legall And therfore Have Assoilzied and heirby Assoilzies the said Sir William Hope from the haill points and articles of the principall Lybell raised at the instance of said Mr William Gordon against him And the saids Lords Have Assoilzied And heirby Assoilzies the said Mr William Gordon and the other Defenders in the reconvention from the haill poynts and articles of the said Lybell of Reconvention And Declares them quyt therof and free ther frae in all tyme comeing And Discharges the said Mr William Gordon and the other defenders in the said Reconvention to trouble or molest the said Sir William Hope in the peaceable braiking and useing of his Right to the Lands and estate of Balcombie or to the teind and Fishing of the toun of Craill in time comeing after pronounceing of the above Decreit The said Mr William Gordon gave in a petition to the saids Lords of privie Councill Shewing That in the proces Depending before the Lords betwixt the petitioner and Sir William Hope By their Interloquitor the sixth of March instant Sir William is assoilzied from the haill poynts of the petitioners Lybell As also the petitioner is Assoilzied from his Reconvention and Discharged the trouble him in the bruicking and useing of his rights to the Lands of Balcombie and to the teind Fish of the toun of Craill As to which the petitioner humblie begged leave to represent primo That the saids Lords would be pleased farther to consider the Remitt of Councill dated the tuenty first of December J^aj vj^c Nynty nyn which does not in the least make any mention of Sir Williams makeing use of souldiers in the poynding But was only founded wpon a Complaint given in by the petitioner against his sending of souldiers contrair to the Claim of right at his oune hand and by his oune warrand upon the Fourteinth of December J^aj vj^c Nynty nyn Wheras any pretended poynding was not whyll a moneth therafter and after the first and second parties were both Removed The one by their Lordships oune order as is contained in the said act and Remitt And the other by ane order from the Lords of session and by Sir William himself as is evident by the instrument and order lyeing in proces under Sir Williams oune hand so that it could never be Congosied by their Lordships wpon the tuenty first of December while it was not acted nor Committed till a moneth therafter and by compareing the date of the execution of the poynding with the date of the Remitt their Lordships would easily discover the mistake Secundo Esto the Interloquitor should Assoilzie Sir William from sending the first partie of souldiers by his oune warrand yet it can never be interpret as was Indicata Because first the Remitt itself is opponed which expressly bears the Remitting the Civill right to be discust summarly by the Lords of session and ordained the partie of souldiers to be removed and the Civill Right being as yet Depending before the Lords of session in est de Jure that the poynt of other violences lybelled are still reserved to their Lordships to be determined and it cannot be pretended that the first partie had any warrand but from Sir William himself who ought certainly suffer therfore and the Lords of privie Councill were still in a mistake wpon that head That aither the first or second partie were send wpon a poynding but allennarly by himself who produred the last partie from the Commanding officer of the Guairds alleadgeing it was to quarter for Excise Secundo no proces of Ryot can be supposed to be cognosied but where there is full probation ledd against the actors and committers of the Ryots But ita est in this cause there was never any probation ledd against the first parties brakeing up the Barne door so that probation not being ledd therwpon makes the Ryot still intire to be yet determined by the privie Councill Likeas when the same defence of its being res hautenus Judicata was proponed by Sir William to the Committie of parliament the samen was not sustained by them But their opinion in the Report was he aught to be Cited Tertio As to the poynding itself its humbly conceaved it was most unwarrantable Because primo Its clearly proven that the Cornes were not prooffed nor told by the threaves secundo The Execution of the poynding is opponed which bears the value of the Cornes poynded to be Fourtein hundreth pund scots mony only wheras there was not Fyve hundreth merks resting and if Sir William will produce his Assignation from Goodsir his Credit It will be found there was no more resting Tertio The takeing away of David Harvies Cornes was most unwarrantable Being the product of a Room which he payed Fyftie tuo bolls of Bear and nyn bolls of oats for, against whom Sir William had no dilligence The Cornes being put into the petitioners Barne yards⁴ when David Died at the sight and advyce of his Relict and nearest of Kin and honest men chosen on aither syde for makeing the Cornes fwrthcomeing to the Creditors he being debitor to them in ane thousand and nyn pund scots besyds that years farme for which the petitioner stood engaged to the Tacksman Quarto It is clearly proven that the souldiers send by Sir William did violently take away the petitioners haill Teind fish for a long time and it cannot be pretended that they were poynded nor that Sir William had right therto from the toun of Craill as is apparent from the Execution of poynding and the tack of the toun of Craill to the said Sir William which the saids Lords were particularly desired to cal for. The Cutting of the trees the souldiers takeing dry quarters The threatning to shoot in at the windows were never yet Congnosied by the saids Lords nor are contained in the said Remitt And which the saids Lords were likeways humbly desired to consider with the probation Ledd anent the afficing and reading the placades The sadd effects wherof, with the dischargeing of the petitioners Milner to grind his victwall to him and takeing away without any order of Law his Teind lint was not contained in the said Remitt nor were ever yet Cognosied by the saids Lords And as to which and every poynt therof the said probation was opponed Quinto the beating of the petitioners servants, of Alexander Burnet The abuses committed against the petitioners wife by Mr Fairfoull Sir Williams Chamberlain with the treasonable expressions proven wpon him against the high Court of parliament are not aither in the Remitt nor were ever under their Lordships consideration And to the probation adduced for proveing the same the petitioner Humbly remitted the same and that their Lordships might call therfore And as to the last poynt of the Interloquitor Dischargeing the petitioner to Molest Sir William in his rights and teind fishing of Craill The petitioner humbly begged Leave to represent primo That all the right Sir William hes wpon the said estate is only a Tacksman to the Lords of session and of some infeftments of annualrent that he hes acquyred right to of which the supplicant shall never trouble nor molest him therin otherwayes ther by order of Law For which the petitioner hes alrady found caution of Lauburroues raised at Sir Williams instance against him Secundo And even as to the saids Rights and to the tack itself he hes proces of Reducation In probation and Declarator depending before the Lords of session against him or Heretable propriator of the saids Lands forsaids on his originall rights and Infeftments under the great seall Tertio as to the teind Fishes which Sir William pretends right to from the toun of Craill The toun of Craill themselves haveing no right therto any right he derives from them most fall in Consequence Especially considering that the petitioner and his authors have been in possession above these three hundreth years and the competition of both their rights lyes to be determined by the Lords of session As the Advocation therupon lying in the Clerk of proces his hands will evince And if the Lords of privie Councills Interloquitor were alloyed to goe out in the termes It might very easily be Judged what use Sir William might make therof and seing that. the petitioners damnages are very great as appeares by the condiscendance given in by him lyeing in the Clerks hands and which he was ready to prove and to give his oath in Litem therupon and was but tuo weell knoun to most of the nation It was therfore humblie Craved that the saids Lords would be pleased to take the premises to their serious consideration In a matter of such Import wherein the petitioner and his Family have bein so heavily prejudged And for that effect to consider the particular points of his Lybell with the probation as ledd to every article therof conforme to the witnesses depositiones and the petitioners former printed information relative therto lyeing in the Clerks hands as also to consider and review the forsaid remitt of Councill with the executions of poynding and dates therof The unwarrantable takeing away of David Harvies Cornes The teind fishes The Cutting of the trees The Dischargeing of the Milner to grind, The takeing of the Lint without any order of Law The beating and wounding of the said Alexander Burnet and of the petitioners servants which he humbly conceaved were all sufficiently proven With the abuses done by the said Fairfoull who is ane defender particularly called in the said proces and the proces itself with the executions were opponed and to allow a probation wpon the Condiscendance of the petitioners damnages given in and that he might not be any wayes molested in the possession of which he stands presently possest of Untill the Lords of Session before whom the same depends determin therin wherby the petitioner and his Family may be presented from the insults of the said Sir William and his accomplices As the said petition bears Which petition being read in presence of the saids Lords They by their deliverance theron allowed the said Sir William Hope deputy Governor of the Castle of Edinburgh To see and ansuer the same and the said Sir William Hope haveing taken up the said petition to see gave in the same and the ansuers therto following viz: Notwithstanding The Lords of privie Councill fully considered the Mutuall lybells and pronation therupon and pronounced distinct Interloquitors wpon all the poynts yet Mr William Reclaims and represents first that the sending of souldiers by the first order and makeing use of soldiers in the poynding were distinct and that the remitt of Councill upon the first ryot could not be res Judicat as to the second which was posterior therto It is ansuered The petitioner wholy Mistakes the cause and the gounds the saids Lords proceeded wpon For their Lordships Assoilzied from the first ryot as being formerly cognosied and from the second not a being in the former cognition But as being a Laufull poynding Wherof the executions were read before their Lordships and which proceeded wpon second letters to use force and to make open doors And whether the Messinger took soldiers along with him or not Sir William is not concerned wich nevertheless he might Laufully doe and was necessary to be done in that caise so that their Lordships had not confounded the two poynds as Mr William would alleadge but hes distinctly considered the same Secundo The petitioner alleadges the remitt to the session cannot be alleadged to be res Judicata Because the remitt was only of the Civill right which presumes that the poynt of Ryot was still intire to be determined And there was no probation of the Ryot ledd It is answered this was alrady fully under their Lordships consideration and there is nothing new represented And the petitioner did full hear and cognose upon the poynt of the Ryot and there being ane act of sequestration of the Teinds produced The saids Lords very weell considered that the affair dyet more wpon the poynt of right then any Ryot And therfore without regairding the Ryot remitted the right to be discust before the Lords of session as more Competent And did not Judge it worthie to Lead any probation wpon the alleadged Ryot And Mr William affords a clear argument against himself seing in his petition he alleadges the point of right is not yet discust and nevertheless would insist in the Ryot before the saids Lords what is alleadged by him wpon the opinion of the Committie of parliament merits no ansuer Besides that (as in all other things) he falslie represents it For their opinion was expressly That as to what was contained in the Councill Lybell Sir William was not to be citied Tertio The petitioner alleadges That the ~~petitioner hi~~ poynding itself was unwarrantable first Because The cornes were not prooffed nor told by the threaves and the execution of the poynding bears the value to be Fourtein hundreth punds scots Wheras there was only Fyvehundreth merks resting to the said Sir William and tertio The takeing away of David Harvies Cornes was most unwrrantable which were no pairt of the teinds It is Answered primo That suppose the executions of the poynding were something Informall yet that will not be the ground of a Councill proces and Sir William is ready to Ansuer when the executions of poynding are called compitently in question secundo The threaves were told and the corns threshen to the prooff not indeed in Mr William Gordons Barne Because of the violence and opposition that was used to the Messinger But in some Neighbouring barnes in Craill whither the Messenger was oblidged to cary the cornes wpon Carts before honest men called for that purpose and even Mr William in his petition does not deny but there was a full value and estimat put wpon them and whether Sir Williams debt was more or less non est haymes Lex, altho it be true that Sir William is not payed as yet by far Tertio as to the takeing away of David Harvies Corns First the Messinger could not distinguish being in Mr William Gordons Barneyeard Secundo this was a gross ryot and unaccountable presumption in Mr William Gordon for this Harvie as a tennent in the Lands of Balcombie and used to pay his farme to the Lords of sessions Tacksmen whose cornes which were lyable for the farme Mr William most unaccountablie Intrometted with and caried away at the tennents death to his oune Barne yeard Wherof Sir William made a complaint to the Lords of session and which occasioned a summar Interloquitor in the end of the summer session To remove Mr William Gordon Because of his continuall Interrupting of the tacksmen in their possession But the Interloquitor was to be extracted at the Lord president and some others of the Lords sights and this was so farr from being a Ryot That Sir William might and aught to have brought back these cornes as his oune hand But Tertio Naither the Relict nor children of Harvie are Complainers Nor is this Fact mentioned in Mr Williams Lybell which was purposlie omitted Because it would have ~~kn~~ given a rise to a stronger ground of Reconvention Quarto as to what the petitioner alleadges anent the Teind Fish of Craill and other things mentioned in that pairt of the petition It is ansuered the same is only a repetition of the particulars in the Lybell and nothing new said But what hes bein already fully under the saids Lords their consideration and Quinto as to what the petitioner alleadges as to the beating of his servants And against Mr Fairfoull Sir Williams Chamberlain It is ansuered these have bein alrady under their Lordships consideration and by the probation it appears That Mr Williams servants were Invadeing and Insulting Sir William in his Just right and possession and as for Mr Fairfoull he hes alrady suffered for some rash expressions extorted from him by Mr Williams rough and Barbarous useage for which he is heartily sory and Intreated their Lordships to consider his petition he haveing lyen a considerable time now in prison And was ready to make all acknouledgement their Lordships could descern Lastly The petitioner Reclaimes against the last pairt of their Lordships Interloquitor Wherby they discharge him to molest Sir Williamin his right and teind fishing of Craill and Represents That Sir Williams rights lye under a proces of Reduction Improbation and Declarator at his instance And that the Toun of Craill have no right to the teind dish and that he is in competition before the Lords of session for the same It is ansuered The saids Lords have done nothing by their Interloquitor But to keep things in the same state and condition they were in and will not prejudge Mr William of his Civill proceses before the Session (Tho Sir William most say by the by) That all are Imaginations and sham pretences and Sir William can make use of no otherwayes of their Lordships Interloquitor but to defend his present possession ay and whill his Rights be Legally taken away In respect of all which and that there was nothing new represented in this Bill but a repetition of what was fully formerly under their Lordships consideration and that their Lordships were not in use to recall their Interloquitors after mature advysement in caises of ryots that come before them And that such is the temper of these Clamorous people that the saids Lords shall be incessantly Importuned with Reclaiming bills The desyre wherof aught to be refused and their Lordships were intreated to consider since Mr William Gordon had again given the oppertunitie and which their Lordships past over at last advyseing The most slanderous expressions against Sir Williams good name and Reputation by Sir William had the confidence to put in one of his prints and which was lyeing in the Clerks hands and which is of a nearer concerne to Sir William then all the other Invasions and Inconveniencies he meet with at Mr Williams hands As the said Ansuers also bears And the said Mr William Gordon Gave also in another petition to the saids Lords of His Majesties privie Councill Shewing That where in the proces persewed by the petitioner against Sir William Hope and James Fairfoull The saids Lords by application from the said Sir William Intended to advyse the probation albeit the petitioner be persewar and in respect that there are a great many poynts to be advysed in his Lybell which are fully proven And in particular the Treasonable expressions proven against Fairfoull who is now prisoner therfore and seing that His Majestie and honourable estates of parliament are so much concerned therin The whole affair being remitted by the parliament to their Lordship As the minuts therof wpon saturday the tuenty fyft of Janwary last bypast paragraph the second Lyeing in the Clerks hands bears Therfore Craveing the saids Lords to take the premises to their consideration in a matter of such Import and to lay aside any finall determination therin untill the Royall will and pleasure of his sacred Majestie or the opinion of the high Court of parliament may be knoune therin As the said petition Lykewayes bears The saids Lords of Her Majesties privie Councill haveing wpon the thretteinth day of March instant considered the said petition given in to them by the above Mr William Gordon of Balcombie And the Answers made therto by the said Sir William Hope Deputie Governour of the Castle of Edinbrugh with the said other petition of the said Mr William Gordon Immediatly abovewrytten Togither with this decreit on the Interloquitor of Councill pronounced wpon the date heirof They by their Lordships Deliverance wrytes wpon the said petition wherto the Ansuers are given in of the date the said thretteinth day of march instant Have Refused and heirby Refuses both the said petitions And Adheres to their said former Interloquitor And the saids Lords ordained the word poynding in that Interloquitor to be Changed to the word sequestration which was done Immediatly and the Lord High Chancelor subscryved the samen at the Board