Judicial Proceedings, 6 August 1695, Edinburgh

Warrant, 31 December 1695, Edinburgh

Edinburgh Tuesday the 6th August 1695

D1695/8/21

Judicial Proceedings

Remit Mongo Carnegie Against Rait and Arbuthnot

Anent the Lybell or Complaint raised and pursued befor the Lords of his Majesties privy Councill at the instance of Mr Mongo Carnegie Advocat factor appointed by the saids Lords of privy Councill for uplifting the rents of the estate of Arbuthnot for the Cropt and year of God Jaj vic nyntie four with Concourse of Sir James Stewart his Majesties Advocat for his highnes intrest in the matter underwritten Mentioning That wher albeit by the Comon Law the termes of this and all other weell governed nationes and specially by the lawes and Constant practicqs of this Kingdome, The violent and unwarrantable breaking open of doors of houses or girnells after the Same are sealed and Locked before famous witnesses and ane instrument taken thereupon and the away takeing and spulzieing of meall and other goods therein Be a Cryme of ane high nature and Severly punishable Nevertheless It is of verity that this pursuer as factor forsaid haveing secured an parcell of meall of the Cropt Jaj vic nyntie four in the Girnells at Gourdon By putting his oun Sealls and new locks upon the Girnell doors and that be vertue of Alexander Leith of Uris the baron baillie his Decreet And the said pursuer haveing sometime therafter sold all the meall more or less that was in the saids Girnells to Baillie Mylne Baillie Mudie and Alexander Ferguson merchants in Montross and was to be delyvered out to them by Sworn metsters, yet George Auchterlonie Robert Arbuthnot merchants in Montross and Alexander Innes and William Rait servitors to the late Viscount having heard of the pursuer his Selling and disposeing of the said meall as said is to the persones above named upon the twentie Sixth, Twentie Seventh or Twentie Eight dayes of the moneth of June last or ane or other of the dayes of the said moneth Did at their oun hands without any order of Law or Justice most violently break open the saids Girnells or Caused break open the same in their presence or by their order or vys et modis unknowen break in therupon throw some unaccustumed entrie therto and spulzied and away took ane Thousand bolls or therabouts victuall out of the saids Girnells Notwithstanding that the same was still in the pursuers possession and after the Girnells were so secured by him before witnesses, and ane instrument taken therupon as said is and Caused put the greatest part therof one be and Alexander Anderson Skiper in Montross his Ship and Gave him orders to saill for Bruntisland, Leith or Borowstouness and Liber the same ther and part therof in Adjacent tenents housses without the Lands of Arbuthnot intending therby to put the same out of the pursuer his reach By all which the said persones above Complained upon Being found guilty or2 airt and part of the saids Crymes They Ought and Should be Decerned not only to restore the meall so unwarrantably taken away by them as said is or the pryce of the same as it is to the persones abovenamed But Likewayes should bee made lyable in the penaltie contained in the Contraits betwixt the said pursuer and the saids baillie Mylne, Baillie Mudie and Alexander Fergusone and of the sum of […] of Damnages and expences sustained by the pursuer throw their unwarantable Spulzieing and away taking the meall as said is, And otherwayes severly punished in their persones and goods to the teror of others to Comitt and do the like in time comeing And Anent the Charge given to the saids defenders To have Compeired before the saids Lords at ane Certaine day now bygone To have answered to the forsaid Complainer and to have heard and seen such order and Course taken theranent as appertained Under the paine of rebellion and puting of them to the horn with Certificatione etc As in the principall letters or lybell raised in the said matter and executions therof at more length is Contained Which Lybell being this day Called in presence of the Lords of his Majesties privy Councill and the pursuer Compeiring personally with Sir James Stewart his majesties advocat Sir James Ogilvie and Mr David Cuninghame and Mr John Menzies his Advocats And the defenders Compeiring Also personally with Sir Patrick Home Mr David Forbes Mr David Dalrymple and Mr William Black ther advocats The Lybell with the answers therto for Alexander Innes and William Rait and also the answers for baillie Auchterlony and Robert Arbuthnot read And both parties and ther advocats being fully heard and the Lords having Considered the Lybell and answers and haill debate in the matter They Find the Lybell not Relevant to inferr a Ryot And Therfore Remits the matter Lybelled to be pursued before the Judge ordinary as to the Civill intrest as accords in Law.

Edinburgh Tuesday the 6th August 1695

D1695/8/21

Judicial Proceedings

Remit Mongo Carnegie Against Rait and Arbuthnot

Anent the Lybell or Complaint raised and pursued befor the Lords of his Majesties privy Councill at the instance of Mr Mongo Carnegie Advocat factor appointed by the saids Lords of privy Councill for uplifting the rents of the estate of Arbuthnot for the Cropt and year of God Jaj vic nyntie four with Concourse of Sir James Stewart his Majesties Advocat for his highnes intrest in the matter underwritten Mentioning That wher albeit by the Comon Law the termes of this and all other weell governed nationes and specially by the lawes and Constant practicqs of this Kingdome, The violent and unwarrantable breaking open of doors of houses or girnells after the Same are sealed and Locked before famous witnesses and ane instrument taken thereupon and the away takeing and spulzieing of meall and other goods therein Be a Cryme of ane high nature and Severly punishable Nevertheless It is of verity that this pursuer as factor forsaid haveing secured an parcell of meall of the Cropt Jaj vic nyntie four in the Girnells at Gourdon By putting his oun Sealls and new locks upon the Girnell doors and that be vertue of Alexander Leith of Uris the baron baillie his Decreet And the said pursuer haveing sometime therafter sold all the meall more or less that was in the saids Girnells to Baillie Mylne Baillie Mudie and Alexander Ferguson merchants in Montross and was to be delyvered out to them by Sworn metsters, yet George Auchterlonie Robert Arbuthnot merchants in Montross and Alexander Innes and William Rait servitors to the late Viscount having heard of the pursuer his Selling and disposeing of the said meall as said is to the persones above named upon the twentie Sixth, Twentie Seventh or Twentie Eight dayes of the moneth of June last or ane or other of the dayes of the said moneth Did at their oun hands without any order of Law or Justice most violently break open the saids Girnells or Caused break open the same in their presence or by their order or vys et modis unknowen break in therupon throw some unaccustumed entrie therto and spulzied and away took ane Thousand bolls or therabouts victuall out of the saids Girnells Notwithstanding that the same was still in the pursuers possession and after the Girnells were so secured by him before witnesses, and ane instrument taken therupon as said is and Caused put the greatest part therof one be and Alexander Anderson Skiper in Montross his Ship and Gave him orders to saill for Bruntisland, Leith or Borowstouness and Liber the same ther and part therof in Adjacent tenents housses without the Lands of Arbuthnot intending therby to put the same out of the pursuer his reach By all which the said persones above Complained upon Being found guilty or2 airt and part of the saids Crymes They Ought and Should be Decerned not only to restore the meall so unwarrantably taken away by them as said is or the pryce of the same as it is to the persones abovenamed But Likewayes should bee made lyable in the penaltie contained in the Contraits betwixt the said pursuer and the saids baillie Mylne, Baillie Mudie and Alexander Fergusone and of the sum of […] of Damnages and expences sustained by the pursuer throw their unwarantable Spulzieing and away taking the meall as said is, And otherwayes severly punished in their persones and goods to the teror of others to Comitt and do the like in time comeing And Anent the Charge given to the saids defenders To have Compeired before the saids Lords at ane Certaine day now bygone To have answered to the forsaid Complainer and to have heard and seen such order and Course taken theranent as appertained Under the paine of rebellion and puting of them to the horn with Certificatione etc As in the principall letters or lybell raised in the said matter and executions therof at more length is Contained Which Lybell being this day Called in presence of the Lords of his Majesties privy Councill and the pursuer Compeiring personally with Sir James Stewart his majesties advocat Sir James Ogilvie and Mr David Cuninghame and Mr John Menzies his Advocats And the defenders Compeiring Also personally with Sir Patrick Home Mr David Forbes Mr David Dalrymple and Mr William Black ther advocats The Lybell with the answers therto for Alexander Innes and William Rait and also the answers for baillie Auchterlony and Robert Arbuthnot read And both parties and ther advocats being fully heard and the Lords having Considered the Lybell and answers and haill debate in the matter They Find the Lybell not Relevant to inferr a Ryot And Therfore Remits the matter Lybelled to be pursued before the Judge ordinary as to the Civill intrest as accords in Law.

1. NRS, PC2/26, 2r-3r.

2. Insertion.

1. NRS, PC2/26, 2r-3r.

2. Insertion.