Act, 28 December 1693, Edinburgh

Edinburgh the Seventh day of November J^aj vj^c nyntie thrie years

D1693/11/2

D1693/11/2¹

Decreet

Decreet David Buchanan

Anent the letters or Complaint raised and persewed before the Lords of their majesties privy Councill be David Buchanan merchant in Montross and Sir James Stewart for their majesties intrest in the matter underwritten Making Mentione That quheras by the Comon law and the lawes of all weell governed nationes and the Lawes and practique of this kingdome The unwarrantable seasing upon any persones goods and detaineing of the same is a high and manifast Ryot and severly punishable, as also if any Clerk wryter to the signet or messenger malverse in their offices either by registrating papers that are not registratable or raiseing horning or other Dilligences without a suficient warrand and the puting letters of horning to executione that are unwarrantably raised and unlawfull detaineing of goods after they are ordained to be delivered² to the ouner by the Judge ordinar, are Crymes of ane high nature and severly punishable And particularly by the 38 act parliament 1st James 7th It is provyded that Because many wrytes are regestrated incompetently without the jurisdictione to the great prejudice of the leidges (such registrationes being void and null and Consequently all executione following therupon Therfore It is ordained that no Clerk to any inferior Court presume to registrate writtes in his books either for Conservatione or wher executione is to pass against any partie that dwells without the Jurisdictione under the paine of deprivatione and five hundred merks of penaltie the one half to the king and the other half to the partie persewer And It being of veritie That William Hamiltone in Elisonebank haveing decern a bill or precept upon the said pursuer for thretie punds Sterling payable to Samuell Douglas of Hissell-syde, And he haveing endorsed the same payable to Archibald Blaick writter in Edinburgh, and albeit the said bill or precept was not a foraigne bill bot ane Inland bill as also that that³ writts cannot be registrated be the Clerk of any inferior Court that dwells not within his Jurisdiction yet the said Archibald Black did most unjustly and unwarrantably give in the said bill or precept to be registrated in⁴ the⁵ shirreff Court books of Edinburgh and Mr James Scot Shireff Clerk of Edinburgh and Robert Thomsone his depute did most unjustly and unwarrantably give out ane extract therof albeit the said bill or precet be ane Inland bill was not registratable by the Law, and albeit the said David Buchanan did not live within the Jurisdictione being ane merchant and indwaller in Montross and William Forrester writter to the signet and alse unjustly and Unwarrantably raised letters of horning upon the said extract at the instance of the said Archibald Black who therupon caused Robert Allan messenger Cause charge the said pursuer and most unjustly and Maliciously did denunce and registrat him at the horne of purpose ruine his Credit and reputatione and as a farder evidence of the said Archbald Black his unjust procedure in the said affair and his wicked malice he caused Charge the pursuer at one Farquhars house at Leith as if it hade been his dwalling house, Wheras he never receided at Leith, nor in that house his ordinary residence being in Montross wher he dwells Bot this was done of purpose that the charge being so privately and Clandestinely at a place wher it could not have been Supposed to come to the pursuers knowledge that he might have redress himself in a legall way And that the said Archibald Black did take advantage of the pursuer to denunce and registrat him at the horne and so endeavored what he could to ruine him in his reputatione and Credit as if he hade been ane absolute bankrupt And seing merchants for the most part doe stand by their Credit in exerciseing of their trade it was most wicked and Maliciouse for the said Archibald Black to offer to registrat such a bill or precept which by the Law wes not registratable And in ane inferior Court book wher the pursuar did not Live within their Jurisdictione and to charge him with horning at a place wher he hade not his residence, So that the pursuar neither did nor could know that the said precept or bill was registrat, or that he was charged and denunced before the messengers came to take him with Caption And the said Archibald Blacks crewall malice did not sease ther bot the pursuer haveing about six Hundred bolls of meall into sellers at Leith the said Archibald Black William Forester writter and Patrick Cockburne messenger did most unwarrantably take the keyes of the severalls wher the meall was Lyeing from the persone that the pursuer hade intrusted with the keeping of it and seazed upon the said meall without metting of it, And still Detaines the keyes of the sellers, And albeit ane hundred bolls would have payed more then all the Soume contained in the precept, yet they most unjustly detained the wholl meall, so that albeit the said Archibald Black could have Lawfullie poynded for the said debt as he could not, Yet he and the said William Forester and Patrick Cockburne could not Lawfullie have taken the keyes of the meall sellers bot only poynded so much of the meall and Caused measure the same by ane Sworne Metster as would have satisfied and payed the debt, And the persone intrusted by the pursuer with the keeping of the meall haveing represented to the baillie of Leith the unjust usadge that the pursuars hade mett with The baillie, did grant a warrand Ordering the said Patrick Cockburne messenger to give up and deliver to the Clerk of Leith the key of that Meall Seller, And the order being presented and intimat to the said Patrick Cockburne he absolutely refused to give obedience to the same as appeared by ane instrument produced, And therafter the pursuer haveing come heir to toune and being about to sell his meall to some person that offered to buy it, The pursuer that he might not Loss his Marcat went to the said Archibald Black, and offered to pay him the Soume contained in the precept upon his granting discharge and delivering back to him the keyes of the meall Cellers and the meall intire provyding the Discharge should bear this reservatione that it should be without prejudice to the pursuer to pursue the said Archibald Black and the other persones Complained upon for the Ryot and their unwarrantable and Illegall actings and the said Archibald Black absolutely refused to receive his money as appeared. by ane instrument of the pursuars offer, And the said Archibald Blacks refusall, And the said Archibald Black William Forrester and Patrick Cockburne must unjustly and unwarrantably detaines the said meall and keyes of the seller so that the pursuer has not only extreamly suffered in his Credit and reputatione by the unwarrantable and Illegall registratione by the unwarrantable and Illegall registrating the said precept and Clandestinely Charging him and registrating him at the horne and takeing out Captione against him he being ane merchant, Bot also exceidingly damnified by the said Archibald Black William Forester and Patrick Cockburne their unwarantable keepeing and detaineing of the meall, By which the pursuars has lost his marcat and the meall is spoilled by keeping and is waisted and destroyed by beasts of which high and manifast ryot and other crymes abovementioned the said Archibald Black and the other persones Complained upon are guilty as actors airt and part And Thefore they and ilk one of them ought to be Lyable to the persuars for the damnage sustained by the forsaid Illegall diligence and by detaineing and keeping the meall and the keyes of the meall sellers Extending to the somne of […] And ought to be Decerned to deliver back to the pursuar the keyes of the meall Cellers with the meall, and be otherwayes punished in their persones and goods to the terror of others to Comitt and doe the like in tyme comeing And Anent the charge given to the charge given⁶ to the fornamed persones defenders To have Compeired this day before the saids Lords of privy Councill To have answered to the grounds of the above Complaint and to have heard and Seen Such order and Course taken theranent as appertaines as in the forsaid Lybell or Complaint and executiones therof at more leanth is Contained, Which Lybell being this day called in pursuar of the saids Lords And the pursuer Compeiring personally be Sir Patrick Home and Mr George Alexander advocates his procurators, And the haill defenders except Patrick Cockburne Compeiring alsoe personally with Sir James Ogilvie and Mr Hew Dalrymple advocats ther procurators The Lords of their majesties privy Councill haveing Considered the Lybell with the defenders answers and writtes produced for instructing fully heard They Find the Lybell not relevent to inferr a Ryot And Therfore assoylzies the defenders from the Ryot Lybelled, And appoints the baillies of Leith to take off the padlocks from of the sellers quherin the meall Lybelled is Locked up And to See alse much of the meall measured out and delivered to the said Archibald Black Conforme to the appretiation as will pay the Soumes in the⁷ bill and horning Lybelled And appoints the said magistrats and ther Clerks to deliver the keyes of the sellers and the rest of the meall to the pursuars And ordaines letters of horning etc.