Judicial Proceeding, 26 November 1695, Edinburgh

Warrant, 31 December 1695, Edinburgh

Edinburgh Tusday the 26th day of November 1695

D1695/11/271

Judicial Proceeding

Lumsdean of Auchindores bill refused

Anent the petition given into the Lords of his majesties privy Councill be John Lumsden of Auchindore now prisoner within the Tolbooth of Aberdeen Shewing That Wheras ther was a proces intented against the petition and before the Commissioners of Justiciary in the North district at the instance of the Lord Forbes and his tennents for his alledged accessione and hounding out of highland robers who came to the lands of March-marr and Westsheills and Caried away the wholl goods and Catle then in the tenents possession In which proces the Judges did proceid most Sumarly and Impartially In so far as they not only Decerned the petitioner to make payment of the Soume of One Thousand five hundred Seventie five pund as the value of the goods But also Decerned him in the Soume of Thrie hundred Nyntie thrie pund for damnadges Two Thousand merks of expences Thrie hundred and threttie pund to be payed to the Fisscall of Court and Seventie Seven pund Eight shilling for the wittnesses expences Upon which decreet the petitioner being Charged with horning he presented a bill of Suspension to the saids Lords and the samen being answered be the Chargers the saids Lords without Calling of parties were pleased to modifie the expences and restrict the Same to One Thousand punds Scots, But therafter the petitioner being ane Landed gentleman And Finding that his honor was more concerned then his intrest thinking it the basest of Crimes to be guilty of any Such villany as the hounding out of robbers upon his Nighbours intrests which deserves the Severest punishments He Therfore made a Second applicatione to the Saids Lords desireing that upon the grounds therin represented they would reconsider the former interloquitor and allow his procurators a hearing in their oun presence, But the Councill being Adjurned that Same day the bill was given in and throw the Multitude of Bussines the same not being read The persewers extracted their Decreet and be vertue of the dilligence upon the first decreet the petitioner was apprehended and incarcerat within the Tolbooth of Aberdein wher he now remaines, And he being Conscious of his oun Innocencie of the cryme for which he Lyes incarcerat and being fully resolves to undergoe the greatest hardships rather than Lye under the forsaid Imputation has therfore presumed to offer to the saids Lords a bill of Suspension upon the following most Just and relevant grounds Primo the time he was cited before the Commissioner of Justiciary he neither gott a list of the assyssors or witnesses that were ledd against him wherby he was precluded from his legall and Just objectiones against them Secundo Wheras the crymes Lybelled against the petitioner should have been put to the knowledge of ane assyze, Yet the Judges refused the same pretending that they Restricted the Lybell to a Civill effect Tertio They were so prepostreous even in this that albeit it was urged for the petitioner that Gordonstoune one of the Judges was son in Law to my Lord Forbes at whose instance the process was caried on, And that the Laird of Brodie was father in Law to the master of Forbes, And that thrie of the rest of the Judges were his brothers in Law, Yet this Dilator was repelled, And without allowing any furder debate upon the relevancie of the Lybell the same was admitted to probation Quarto albeit the petitioner offered positively to prove that how soon he heard that the Depredators were in the Countrey he Sent ane express to my Lord Forbes tennents Accquainting them therof, And that he himself dureing that night the depredation was Comitted was with his oun men on purpose to guard his oun goods from the hairship And that the nixt day how Soon he gott nottice that they hade robbed my Lord Forbes his intrest and his men did Concurr with my Lord Forbes Son and tennents And went after the depredators Yet thir most revelant defences for his exculpation were rejected Quinto when the wittnesses were adduced against him he offered him positively to prove That Shaw of Dalnaver was the principall actor And depredator and […] was one of his associats And that they hade threatned him Mischeiff and beside were under a Sentance of Fugitation for the same crime, And Therfore could not have been received And this objection is founded both on the Comon law and on the inviolable practiq of this kingdome Such who were Sorierimmis being presumed to be under the Temptatione of Deponeing Liberally for ther oun vindicatione But more especially was this objection Competent against them in this place Seing they Deponed Spe venie they being Lyable to the law and in reverence of the pursuers, And knowing that the value of the goods and damnadges being recovered they would be Liberat Sexto ther were only five who deponed against the petitioner Two of which were of the depredators as said is and he offers him positively to prove that thrie of them were alibi the time of the depredatione was Comitted being at twentie mylles distance to be from the place of the depredatione for the space of twentie four hours before at the time and after the Comitting of the said Heirship Septimo Dalnavert the principall witnes Cannot deny upon oath, But he advised to raise this proces and promised to furnish probation and to be a probative witnes himself For doeing wherof he was to be indemnified and otherwayes to be gratified and that these promisses were made by the persewers or others in ther name to the saids witnesses Octavo the forsaids haill objectiones at least most of them were proponed before the saids Comissioners and which the Suspender then offered him to prove he hade been allowed ane Exculpation, But all this was hurried over and the relevaincie probatione and all was Considered in one afternoon And the petitioner Decerned in the exorbitant soumes for which he now Lyes in prisone and which are near the value of his estate, And as this procedor was most prepostreous So the petitioner humbly conceaves that the Judges haveing restricted the Lybell to a Civill effect ther was no farder proces Competent before them for albeit Commissioners of Justiciary may decerne In damnadges as the Consequence of a Crime which is proven before them and recognosced by ane assyze, yet it was never heard of that a Criminall Judge Could restrict Criminall processes for robbing and heirship to Simple restrictione of the goods robbed, and therupon Lead a probatione, And Decerned without puting the Criminall to the knowledge of ane inquest And if Such decreits were Sustained the same may be off Dangerous Consequence ther being no precept before the Lords of Session wherin ther are more intricat debates then Spulzies wher oft times the title the relevancie and Competence of the Lybell are letigiously debated and in any case of this Nature before the Comissioners, Albeit iniquity may be Committed, yet the Lords of Session are by the Commission given to the Commissioners of Justiciary Secluded from giveing any redress, and the Commissioners themselves Considering That Civill actiones falls not under ther Cognizance by the Commission Have by a late act in September Last Declaired they will restrict no Criminall process to a Civill effect, nor Decerne restitutione or damnadges till the pannall be Convict and found guilty by ane assyze of the crimes Lybelled against him So that it was humbly conceaved that the designe of the Commission Is that these Judges Should Judge in matters Criminall by puting the pannall (in crimes capitall) to the knowledge of ane Assysse and being found guilty, That then they may Decerne restitution and Damnadges as the Consequence of the guilt Nono the persuers of this process against the petitioner were so deffident of ther getting repairation for their goods and Damnadges that they never attempted to pursue him before the Judge ordinary before whom allenarly this action was Competent but Chosed rather to prosecute it the way and maner above represented, and when the petitioner at first addressed ther Lordships, They used ther outmost indeavors to hinder his getting allowed a hearing in ther Lordships presence wher the petitioner would have Suficiently vindicat himself of any accession to this villany and depredation and have been so maliciouse against him both at that time and ever Since That they Load him as the basest and vilest of Criminalls Resolveing as one and the same time to ruine him in his intrest and Murder him in his fame and reputatione And Therfore humbly Craveing the saids Lords to Consider the premisses and Seing the petitioner Is Content to find Sufficient Caution to reenter himself prisoner in any prison the saids Lords Should appoint, And to remaine ther whill he pay not only what is Contained in the former Decreet But What farder the saids Lords Should modifie incase the petitioner succumb in probation of what is above represented that therfore the saids Lords would pass a suspensione and allow him to be sett at Liberty and Grant him a dilligence for citeing of witnesses for proving his reasones of Suspension As the petition bears The Lords of his Majesties privy Councill having Considered this petition given in to them be the above John Lumsdean of Auchindore with a representation for John Duncan and others of the Lord Forbesses tennents by way of Answer therto and a memoriall anent Auchindores petitione They hereby Refuse the desire of the said John Lumsdean of Auchindore his petition And Refuses to Grant him a Suspensione against the Chargers therin mentioned But Finds the letters at the Chargers instance against him orderly proceided.

Edinburgh Tusday the 26th day of November 1695

D1695/11/271

Judicial Proceeding

Lumsdean of Auchindores bill refused

Anent the petition given into the Lords of his majesties privy Councill be John Lumsden of Auchindore now prisoner within the Tolbooth of Aberdeen Shewing That Wheras ther was a proces intented against the petition and before the Commissioners of Justiciary in the North district at the instance of the Lord Forbes and his tennents for his alledged accessione and hounding out of highland robers who came to the lands of March-marr and Westsheills and Caried away the wholl goods and Catle then in the tenents possession In which proces the Judges did proceid most Sumarly and Impartially In so far as they not only Decerned the petitioner to make payment of the Soume of One Thousand five hundred Seventie five pund as the value of the goods But also Decerned him in the Soume of Thrie hundred Nyntie thrie pund for damnadges Two Thousand merks of expences Thrie hundred and threttie pund to be payed to the Fisscall of Court and Seventie Seven pund Eight shilling for the wittnesses expences Upon which decreet the petitioner being Charged with horning he presented a bill of Suspension to the saids Lords and the samen being answered be the Chargers the saids Lords without Calling of parties were pleased to modifie the expences and restrict the Same to One Thousand punds Scots, But therafter the petitioner being ane Landed gentleman And Finding that his honor was more concerned then his intrest thinking it the basest of Crimes to be guilty of any Such villany as the hounding out of robbers upon his Nighbours intrests which deserves the Severest punishments He Therfore made a Second applicatione to the Saids Lords desireing that upon the grounds therin represented they would reconsider the former interloquitor and allow his procurators a hearing in their oun presence, But the Councill being Adjurned that Same day the bill was given in and throw the Multitude of Bussines the same not being read The persewers extracted their Decreet and be vertue of the dilligence upon the first decreet the petitioner was apprehended and incarcerat within the Tolbooth of Aberdein wher he now remaines, And he being Conscious of his oun Innocencie of the cryme for which he Lyes incarcerat and being fully resolves to undergoe the greatest hardships rather than Lye under the forsaid Imputation has therfore presumed to offer to the saids Lords a bill of Suspension upon the following most Just and relevant grounds Primo the time he was cited before the Commissioner of Justiciary he neither gott a list of the assyssors or witnesses that were ledd against him wherby he was precluded from his legall and Just objectiones against them Secundo Wheras the crymes Lybelled against the petitioner should have been put to the knowledge of ane assyze, Yet the Judges refused the same pretending that they Restricted the Lybell to a Civill effect Tertio They were so prepostreous even in this that albeit it was urged for the petitioner that Gordonstoune one of the Judges was son in Law to my Lord Forbes at whose instance the process was caried on, And that the Laird of Brodie was father in Law to the master of Forbes, And that thrie of the rest of the Judges were his brothers in Law, Yet this Dilator was repelled, And without allowing any furder debate upon the relevancie of the Lybell the same was admitted to probation Quarto albeit the petitioner offered positively to prove that how soon he heard that the Depredators were in the Countrey he Sent ane express to my Lord Forbes tennents Accquainting them therof, And that he himself dureing that night the depredation was Comitted was with his oun men on purpose to guard his oun goods from the hairship And that the nixt day how Soon he gott nottice that they hade robbed my Lord Forbes his intrest and his men did Concurr with my Lord Forbes Son and tennents And went after the depredators Yet thir most revelant defences for his exculpation were rejected Quinto when the wittnesses were adduced against him he offered him positively to prove That Shaw of Dalnaver was the principall actor And depredator and […] was one of his associats And that they hade threatned him Mischeiff and beside were under a Sentance of Fugitation for the same crime, And Therfore could not have been received And this objection is founded both on the Comon law and on the inviolable practiq of this kingdome Such who were Sorierimmis being presumed to be under the Temptatione of Deponeing Liberally for ther oun vindicatione But more especially was this objection Competent against them in this place Seing they Deponed Spe venie they being Lyable to the law and in reverence of the pursuers, And knowing that the value of the goods and damnadges being recovered they would be Liberat Sexto ther were only five who deponed against the petitioner Two of which were of the depredators as said is and he offers him positively to prove that thrie of them were alibi the time of the depredatione was Comitted being at twentie mylles distance to be from the place of the depredatione for the space of twentie four hours before at the time and after the Comitting of the said Heirship Septimo Dalnavert the principall witnes Cannot deny upon oath, But he advised to raise this proces and promised to furnish probation and to be a probative witnes himself For doeing wherof he was to be indemnified and otherwayes to be gratified and that these promisses were made by the persewers or others in ther name to the saids witnesses Octavo the forsaids haill objectiones at least most of them were proponed before the saids Comissioners and which the Suspender then offered him to prove he hade been allowed ane Exculpation, But all this was hurried over and the relevaincie probatione and all was Considered in one afternoon And the petitioner Decerned in the exorbitant soumes for which he now Lyes in prisone and which are near the value of his estate, And as this procedor was most prepostreous So the petitioner humbly conceaves that the Judges haveing restricted the Lybell to a Civill effect ther was no farder proces Competent before them for albeit Commissioners of Justiciary may decerne In damnadges as the Consequence of a Crime which is proven before them and recognosced by ane assyze, yet it was never heard of that a Criminall Judge Could restrict Criminall processes for robbing and heirship to Simple restrictione of the goods robbed, and therupon Lead a probatione, And Decerned without puting the Criminall to the knowledge of ane inquest And if Such decreits were Sustained the same may be off Dangerous Consequence ther being no precept before the Lords of Session wherin ther are more intricat debates then Spulzies wher oft times the title the relevancie and Competence of the Lybell are letigiously debated and in any case of this Nature before the Comissioners, Albeit iniquity may be Committed, yet the Lords of Session are by the Commission given to the Commissioners of Justiciary Secluded from giveing any redress, and the Commissioners themselves Considering That Civill actiones falls not under ther Cognizance by the Commission Have by a late act in September Last Declaired they will restrict no Criminall process to a Civill effect, nor Decerne restitutione or damnadges till the pannall be Convict and found guilty by ane assyze of the crimes Lybelled against him So that it was humbly conceaved that the designe of the Commission Is that these Judges Should Judge in matters Criminall by puting the pannall (in crimes capitall) to the knowledge of ane Assysse and being found guilty, That then they may Decerne restitution and Damnadges as the Consequence of the guilt Nono the persuers of this process against the petitioner were so deffident of ther getting repairation for their goods and Damnadges that they never attempted to pursue him before the Judge ordinary before whom allenarly this action was Competent but Chosed rather to prosecute it the way and maner above represented, and when the petitioner at first addressed ther Lordships, They used ther outmost indeavors to hinder his getting allowed a hearing in ther Lordships presence wher the petitioner would have Suficiently vindicat himself of any accession to this villany and depredation and have been so maliciouse against him both at that time and ever Since That they Load him as the basest and vilest of Criminalls Resolveing as one and the same time to ruine him in his intrest and Murder him in his fame and reputatione And Therfore humbly Craveing the saids Lords to Consider the premisses and Seing the petitioner Is Content to find Sufficient Caution to reenter himself prisoner in any prison the saids Lords Should appoint, And to remaine ther whill he pay not only what is Contained in the former Decreet But What farder the saids Lords Should modifie incase the petitioner succumb in probation of what is above represented that therfore the saids Lords would pass a suspensione and allow him to be sett at Liberty and Grant him a dilligence for citeing of witnesses for proving his reasones of Suspension As the petition bears The Lords of his Majesties privy Councill having Considered this petition given in to them be the above John Lumsdean of Auchindore with a representation for John Duncan and others of the Lord Forbesses tennents by way of Answer therto and a memoriall anent Auchindores petitione They hereby Refuse the desire of the said John Lumsdean of Auchindore his petition And Refuses to Grant him a Suspensione against the Chargers therin mentioned But Finds the letters at the Chargers instance against him orderly proceided.

1. NRS, PC2/26, 37v-40v.

1. NRS, PC2/26, 37v-40v.