Decreet, 29 December 1698, Edinburgh

Att Edinburgh The Seventh day of Jullie J^aj vi^c nyntie eight years

D1698/7/6

D1698/7/6¹

Decreet

Decret The tennents of Keir Against McLeod

Anent our Soveraigne Lords Letters of Suspension purchassed and raist before the Lords of our privy Councill att the Instance of Roderick McLeod of that ilk Mentioning That wher the Suspender and John McEun alias Cameron Sometyme in Calsbeg in Glenelg now in Lochaber conjunctlly and severally are Lately Charged Be vertue of pretended Letters of horning raist at the instance of John Mcvorst John Mckindly Thomas and Kathrine Mckinlayes relict of umquhile John Mckindley all tennents in Annie and Tombie belonging to the Laird of Keir Archbald Stirling of Carden tutor in Law to the said Laird of Keir and Henery Chrystie procurator fiscall of the south and uest districts for his Intrest to make payment to them Conjunctlly and Severally of the Soume of fourtie pounds Scotts money as the price of ilk ane of the Number of Nyne horses and mares with tuo thousand pounds of taskall money damnages and expences depursed by them extending in the haill to the Soume of Tuo Thousand Three Hundred and Sixtie pounds Scotts As also to make payment to the said Hendry Christie of the Sowme of ane Hundred pounds money abovewryten Conforme to ane Act of Sederunt Contained in ane decreit obtained by the saids Chargers before the Commissioners of the said District upon the Sixth day of September J^aj vi^c nyntie five years And that within a Certain Short Space nixt after the said chairge under the paine of rebellion etc most wrongously and unjustly Considering it is of veritie that the forsaid decreit was in absence The said suspender being never cited at the instance of the said Laird of Carden who had no right to the ground of the said Lybell And the said Suspender Leiving at a Great distance had not tyme to advertise any procurator to Compear for him And at the tyme of the calling one of the procurators Craved a sight of the Lybell that he might propone defences for him And in respect he had not amendat from the said Suspender he was refuised a Sight of the Lybell to propone for him the most relevant reformes follouing which would have elided the forsaid pretended pursuite As Primo The said John Mceune alias Cameron In whose possession the goods Lybelled were allead to be found uas not tennent to the said Suspender the tyme of the Citation But to the Laird of Lochell as the extract of the decreit produced bears And therfor the said Suspender could noe wayes be Conveened as Landlord to him or be lyable for the Skaith The obligatione of Landlords being by Lau alternative either to present there tennents to Justice or abyde tryall or otherwayes to be debt bound to satisfie the parties Skaithed as is clear by the Act ² nyntie three parliament Eleventh James the Sixth and others which obligatione Can only Ly upon these that are Landlords the tyme of the Citatione Since they only can be obleidged to present the persones Complained upon And it were a very hard Consequence from the forsaid Act that the said Suspender Should be obleidged³ to present the persone abovecomplained upon seing he is Lochells tennent and of his name And not in the suspenders pouer to present him Secundo It is tuelve years since the alleaged thift was Committed And it were the hardest thing Imaginable to obleidge the Suspender who was then within pupillarity and uas never Certiorat to be lyable for the Skaith after Such a Long tract of tyme Especiallie he being ther severall years bygone in Lochells Lands who is his Cheiff and master and Can only be lyable for him seing nox a Caput Sequitur Tertio albeit the goods Lybelled had been found upon the said suspenders Lands yet that Could never make him Lyable as Landlord for the value therof unles it were proven that the goods were disposed of or Sparpled upon his Lands As is Clear by the Sixth Act second Session first parliament Charles the second or daming all heretors within the paroches wherin such goods should be found to be disposed or Sparpled to be Lyable for the value of the saids goods so that the said Suspender as Landlord Could not be Lyable for the value of these three mears allead found upon his Ground Farr Less for the other goods Lybelled alleaged taken auay at the same tyme theruith Quarto esto It were true that the said three mears had been found upon the saids Suspenders Ground at the tyme as it is most Calumnious yet they might be driven or wander ther uithout the accession of his tennents And It is most ordinar in these places to dryve Catle from one neighbourhood to another that the takers may be free of the danger of search and that ther neighbours may be blamed And It is plainly offered to be proven that this was the Suspenders caise And It will never be made appear that the goods Lybelled were in the possession of the said John McEune or Sparpled or disposed of in the said Suspenders ground which is the true tearmes of the Act of parliament And It is farder plainly offered to be proven that the Goods now Lybelled upon were on Glengaries ground Quinto the Soume of tuo thousand pounds charged for as expences in Searching and seeking the saids Goods Is most exorbitant uithout any manner of probatione whatsoever And tho the said Suspender Could be Conveened or made Lyable by the forsaid Act of parliament (as he can never) yet he could be Lyable for the value of the three Mears allead found upon his Ground Lybelled at fourtie pounds Scotts per peice But not at all for the remainder of the goods or for the exorbitant expences abovementioned In respect of all which the forsaid pretended Charge ought to be Suspended upon the said Roderick McLeood of that ilk Suspender alwayes for obedience He hath Instantly found Sufficient Cautione Acted in the books of privy Councill to make payment to the saids Chargers of the Soumes charged for In caise it be found by the saids Lords of privy Councill that he ought So to doe at desmissing therof And Anent the Charge Given to the saids Chargers to have Compeared personallie before the Lords of our privie Councill at ane certain day bygone Bringand with them the forsaids Letters and Chargers uith the haill Grounds and warrands wherupon the Samen proceeded To be seen and Considered by the saids Lords and to have heard and seen the samen Simpliciter Suspended upon the said Suspender in all tyme Comeing As the said principall Letters of Suspension with the executiones therof in themselves more fullie proports And The saids Letters of Suspension att the instance of John Dow Mceune oig alias Cameron Sometyme in Calisbeg of Glenelg at the end of Lochburn pertaining to Sir Rodorick McLeod of that ilk his Landlord and master for his Intrest Against John Mcvorst John and Thomas Mckindlayes and Katherine Mckindlay relict of John Mckindley all tennents in Annie and Tombie belonging to the Laird of Keir Archbald Stirling of Carden tutor in Lau to the said Laird of Keir and Hendry Crhystie procurator fiscall Being this day Called in presence of the Lords of his Majesties privy Councill And the said Sir Rodorick McLeod and John Mceune alias Cameron Suspenders Being oft tymes Called but not Compearing And Mr Alexander McLeod Compearing as advocat for them and the haill Chargers particularly abovenamed Being oft tymes called but not Compearing except the said Archbald Stirling of Carden who Compeared personallie to Ansuer for himself and the haill Chargers except the saids Hary Chrystie And the said Hary Chrystie another of the Chargers being oft tymes called and not Compearing And Mr Thomas Skeen Compearing as advocat for the saids haill Chargers The Suspension at the instance of the saids Suspenders Against the forsaids Chargers uith the Ansuers made therto And having heard both parties ther Lauyers They Find the Letters orderly proceeded at the instance of the said John Mcvorst John Thomas and Kathrin Mckindlayes and Archbald Stirling Chargers excepting the said Hary Chrystie another of the Chargers Against the said Jhon Mceune lias Cameron and Sir Rodorick Mcleod Suspenders Conjunctlly and Severally ay and while the Suspenders Conjunctlly and Severally as said is Make payment to the said John Mcvorast John Thomas and Kathrin Mckindlayes and Archbald Stirling Chargers of the Soume of fourtie pounds Scotts as the price of ilk ane of the Number of Nyne horses and Mears with tuo thousand pounds of Taskall money damnages and expences by the saids Chargers Imediatly abovenamed Extending in the haill to the Soume of Tuo Thousand Three Hundred and Sixtie pounds Scotts As also ay and while the saids Suspenders make payment to the said Hary Chrystie another of the Chargers of the above Soume of ane Hundred pounds Scotts Conforme to ane Act of sederunt Contained in the decreit obtained before the Commissioners of the south and next District of the date Charged on And ordaines the Same to be putt to execution After the forme and tenor therof in all points After pronuncing of the forsaid Interloquitor The said Laird of Mcleod Suspender gave in a petition to the Lords of privie Councill Craving that the Lords would allow him to be heard upon the defences therinmentioned and others Competent to him in the Cause or otherwayes Remitt the Same to any Competent Court of Justiciary of the Heghlands That the determination therof may proceed upon full probation and tryall of the whole matter Unto the which petition the said The said⁴ Laird of Keir and Archbald Stirling of Carden his tutor for his Intrest gave In a petitione by way of Ansuers to the said Laird of Mcleods petition wherby they Crave their Lordships In Consideration of the premisses to refuise the forsaid petition of McLeods And to ordaine the Chargers Decreit already pronunced in the said matter to be Given out and extracted to them And to modifie Such further expences as their Lordships Shall think fitt for the Great trouble and delay they have mett uith in the said matter As the said petitiones in themselves at more Length bears And upon the tuenty third day of november J^aj vi^c nyntie nyne The Saids Lords of his majesties privie Councill Having Considered a petitione given in to them by the said Rodorick McLeod and ansuers by way of petition for the Laird of Keir made therto They refuised the desyre of the said Laird of McLeod his petitione And ordained the decreit pronunced by the saids Lords of his Majesties privie Councill mentioned in the said petition and answers therto to be extracted in the terms of the Councills Interloquitor and that notwithstanding of the Laird of McLeods petition In respect of the Ansuers made therto In the Laird of Keirs petitione And Sir Duncan Campbell of Auchinbreik Cautioner for the Laird of McLeod now deceast Gave in a petition to the saids Lords of his Majesties privie Councill Craving to be heard upon the grounds represented in his petitione And in the mean tyme to Stopp extracting in the said cause as the said petition at more Length bears And the Laird of Keir and Archbald Stirling of Carden his tutor and Curator Gave in a petitione to the saids Lords of privie Councill by way of Ansuer to the petition given in by the said Laird of Auchinbreik Craving the decreit therinmentioned so oft stopped to be Given out and to discharge any other bills theranent Whilk petition given in by the said Laird of Auchinbreik and petition by way of Ansuer therto given in by the Laird of Keir and his tutor being upon the fourteenth of december J^aj vi^c nyntie nyne read and Considered by the saids Lords of his Majesties privie Councill They by their Interloquitor therupon of the Same day alloued both parties to be heard in their presence on teusday then nixt to Come being the Nynteen of december J^aj vi^c nyntie nyne And ordained both parties and their Lauyers to attend that day Therafter the said James Stirling of Keir gave in a petition to the saids Lords of his majesties privie Councill Shewing That wher the petitioner and Archbald Stirling of Carden as tutor and Curator Sine quo non to him upon a full probation adduced be him before the Commissioners of Justiciary for the peace of the highlands obtained a decreit against the Laird of McLeod and John Dow Mceuan his tennents for payment of tuo thousand three hundred and Six pounds Scotts as the price of severall horses and mears Stollen out of the petitioners ground and found upon McLeods ground and for the taskall money In manner more fullie mentioned in the said decreit This decreit is Suspended upon the reasons follouing viz The said John Mceuen alias Cameron in whose possession the saids Goods were alleaged to be found uas no tennent to the suspender the tyme of the Citation which is instructed by the decreit it self And therfor the Laird of McLeod as being his Land Lord Could neither be obleidged to pay the Skaith nor as his Landlord The obligation by Law being alternative either to present ther tennents to Justice to abide tryalls or otheruayes to be bound to Satisfie the partie Skaithed as is clear by the nyntie third Act parliament Eleventh King James the Sixt /2do/ It is tuelve years since the alleaged thift was Committed and McLeod being then a pupill and never Certiorat to be Lyable for the Skaith It were hard to make him Lyable especiallie seing the Defender Mceuen is removed severall years off his Ground and is now in Lochzells ground who is both his theiff and master /3to/ altho the Saids Goods had been found upon the Said Suspenders Lands yet that could never make him Lyable as Land-Lord for the value therof unles it were proven that the goods were Disposed of or Sparpled upon his Laues and is clear by the Sixth Act Second Session first parliament Charles second /4to/ tho it were true that the three mears had been found upon the suspenders ground which is denyed yet they might have been driven ther uithout the accession of his tennents And It is most ordinar in these places to drive Catle from one Neighbourhood to another and that the takers may be free from the danger of Quarrell and ther Neighbours blamed And it is offered to be proven that this uas the Suspenders case And It will never be made appear that the goods Lybelled were in the possession of the said Mceuen or Sparpled and desposed off in the suspenders ground But they uere in Glengaries ground 5to the Soume of tuo thousand pounds for expenses in Searching and Seeking of these goods is most exorbitatn and uithout any probation And altho the goods had been found upon the ground as said is yet he can only be Lyable for the value of these goods found upon his Ground as said is but not at all for the remainder of the other goods or for the exorbitant expenses To the first reasone of suspension it was ansuered That it was noe uayes relevant to alleadge that the said John Dow Mceuen alias Cameron who was one of the theivs that stole auay the Goods Lybelled wes not duelling upon the Suspenders ground the tyme of the citation For it is Sufficient if he uas Living upon his Ground the tyme of the robbery and thift otheruayes the designe and effect of the Act of parliament might easily be elided and evaded For it were a very easie matter to a Landlord After the Committing of a thift or robbery is discovered to putt the theiff or robber from his ground to Some place wher he might for a tyme Lurk and Live And After the proces uas over and the defence Sustained to returne to his old Landlord to gett probation /2do/ It is a reason of Suspension not instantly verified And the Charger hes reasone to be that it is false and calumnious for the proces was Commenced in anno J^aj vi^c Eighty eight altho it was not determined till the J^aj vi^c nyntie five 3to/ the Act of parliament hes that alternative that the thief must either be presented or otheruayes be Lyable for the Skaith And the Charger Subsumed that the Suspender had failzeid to present the thief and therfor uas Lyable for the value and expences To the second reason it uas ansuered that tho it be a Considerable tyme Since the theft uas Committed yet the proces was depending since the J^aj vi^c eightie eight which was a Short tyme after the Committing therof another the Suspenders father was then Leiving and Called And after his decease the suspender himself And It makes no difference whither Major or Minor For the Act of parliament makes noe exception if he uas Landlord and is not Concerned wher the thief now Lives To the third It was ansuered that the Charger hes proven that the horses and mears Stollen new tracted to and found upon the Suspenders ground above Sevenscore of miles distant which sufficiently proves ther being Sparpled upon the Same To the fourth It was ansuered that the goods might have uandred and driven by neighbours The Same is so ueak a reasone that it merited noe ansuer And that it could not be probable that they could wander at so Great a distance and being tracted all the uay from the Ground they were Stollen off and found upon the Ground makes him Lyable in the termes of the Act of parliament and the decreit is oppouned proving the Same To the fifth it was ansuered that the Great distance first in the quest of the goods being Eleven in Number and then by a Second and third tyme by a messenger and uitnesses to Cite the parties besyds taskall money for Informatione and discovery and the expenses of the Courts is farr beyond the Soume decerned And altho the Same was a Gross robbery yet if it had been only a Spulzie The Soume decerned is farr within the violent profits And as to that reason of Suspension That the Suspender can only be Lyable for the value of the goods only found upon the ground It was ansuered that the Act of parliament is opponed wherby the Suspender must be Lyable for the whole and taskall money which is the ordinary practise of the Commissioners of Justiciary This Suspension was called And After full debate Anent the reasons and ansuers The Letters were by their Lordship found orderly proceeded Therafter McLeod gave in a bill desyring to be further heard and to Stopp the decreit in the mean tyme which bill and ansuers being fullie Considered by their Lordship in november J^aj vi^c nyntie nyne Their Lordships adhered to their former Interloquitor and ordained the decreit to Goe out Therafter ther was a new bill Given in by Sir Duncan Campbell of Auchinbreck who was Cautioner in the Suspension for McLeod Representing only the former grounds and againe repeating that the Chargers title were not Sufficiently cleared and their proportion Distinguished by decreit of Justiciary In regaird the Same is also at the instance of severall of Keirs tennents to whom the goods belonged To which it was ansuered that the Same grounds were fully debate and repelled by tuo severall Interloquitors And as to the distinguishing the respective proportions Ther was ane Assignatione produced in the proces In the name of Carden for the petitioners behoofe from the whole tennents so upon payment ther Should be Sufficient Discharge granted This new bill and ansuers hes never been Considered by their Lordships and now the petitioner being past the years of his minority And Considering the Great expences his tutors and Curators have been at in the said proces And the many Stopps given to their Lordships Interloquitor wherby the whole Soumes acclaimed are neer exhausted And therfor Humbly Craving that to take the premisses of the said petitione to their Consideration And ordains the petitioners Decreit to Goe out of the date the Same was pronunced And to discharge the Clerks from receaving in any more bills for the same And ther was Given in Lykewayes a Representation of the state of the proces at the instance of the tennents of Keir Against the Lairds of McLeod and Auchinbreck Representing ther being a decreit in absence obtained before the Commissioners of Justiciary for the Highlands at the instance of John Mcvoust and other tennents to the Laird of Keir Against the deceast Rodorick McLeod of that ilk as alleadged Landlord to John Mceuen oig alias Cameron for the prices of some horses or mears and the Soume of tuo thousand pounds of damnage and expences wherof Suspension being raised before the Lords of privie Councill att first Calling wherof through the Suspenders not Giving full Informatione of the case The Letters were found orderly proceeded But therafter applying to the Lords by a petition Bearing a more full representatione of the case and the Chargers not Insisting for discussing therof The Cause Continued so a considerable tyme untill the Suspender dyed Afteruards the Chargers making applicatione to have the forsaid Interloquitor extracted Sir Duncan Campbell of Auchinbreck having benn Cautioner in the Suspension applyed by petitione to the Lords of privie Counsell upon severall reasons against the said decreit which with the Ansuers therto for the Lairds of Keir and Carden Having been Considered by the Lords They by their Interloquitor in the fourteenth day of december J^aj vi^c nyntie nyne alloued both parties to be heard in their presence And the Chargers not having attended the dyet appointed therfor The Cause Continued So in dependance notuithstanding therof ther is a petitione nou offered by the Chargers Desyring to have the forsaid first Interloquitor Summarly extracted pretending that the forsaid petitione at Sir Duncan Campbells instance with the ansuers therto uere not at all Considered by the lordships The Contrair wherof is evident by the forsaid Interloquitor upon the said petition Lying in proces so that noe decreit can Goe out therin uithout hearing parties and discussing ther grounds therin represented in Commone forme The cause being by the forsaid Interloquitor not in the case of a decreit but of a depending proces And The Saids Lords having upon the tuenty Sixth day of June J^aj vi^c and ane years Heard the forsaid petition given in to them by James Stirling of Keir read in their presents with the representatione of the state of the proces above deduced The saids Lords of his Majesties privy Councill Having Considered the forsaid petition given in to them by the Laird of Keir and the aboverepresentatione And The Laird of Keir Compearing personallie uith Sir Alexander Home and Mr David Cinynghame his advocats And the Laird of Mcleod younger Compearing be Sir David Dalrymple and […] Cockburne of Langtoune and Mr Alexander McLeod his advocats and being absent himself and both parties Lauyers fullie heard at the Councill barr The saids Lords by their Interloquitor pronunced by them of the third day of Jullie J^aj vi^c and one years Have ordained and heirby ordaines the decreit pronunced by their Lordships upon the seventh day of Jullie J^aj vi^c nyntie eight to be extracted and given out to the Charger