Act, 6 October 1697, Edinburgh

Att Edinburgh the twentie Seventh of Jully J^aj vi^c nyntie seven yeirs

D1697/7/20

D1697/7/20¹

Procedure: judicial proceedings

Remit Glansallock Against Campbell to the Commissioner of the Highlands

Anent the bill of Suspensione presented to The Lords of his majesties privie Counsell be Robert Campbell of Glensalloch Shewing That where he is Latelie charged be vertue of ane decreit of the Commissioners of Jwsticiarie of the South and west district appointed for Secureing the peace of the Highlands alleadged given and pronunced by them in and Court holdin at Stirleing the twentie fifth day of October J^aj vi^c nyntie five yeirs Att the instance of Dwncan Campbell in Earne and Jennet Blaire relict of wmquhill John Cannonoch ther tenents to the Laird of Lanerk Against John McIllichoan in Inverayan and the petitioner as his pretended Landlord and maister To make payment to the saids chargers of the Sowme of Four Hundereth and eightein pund threttein shilling four pennies Scotts money As the lybelled Valwe and piece of certain goods and household plainshing alleadged maisterfullie robbed and away taken from the Saids chargers in ane hostile maner with armes by the said John McIllichoan and his accomplices in the moneths of Augwst or September J^aj vi^c nyntie yeirs Likewise of the Soume of Thrie Hundereth punds of Tascall money coast damnadge and expensses alleadged Sustained by the chargers for want of ther saids goods Extending in haill to the Sowme of Seven Hundered and Eightein pund threttein Shilling four pennies money above written And for alleadged disobedience the saids chargers have caused pound Some of the petitioners goods alreadie towards the payment of a pairt of the saids Soumes And intends furder to proceed against the petitioner most wrongouselie and wnjustly Considering it is of veritie that the decreit is pronunced against the petitioner as Landlord to the said John Mcillhoan without any defence proponed for the petitioner And consequently in absence as to the petitioner haveing bein wnwell and accordinglie excwsed from the court which satt at Pearth the threttie day of November J^aj vi^c and nyntie five Long efter the date of the said decreit charged upon as appears by the extract of the proces and decreit at the Letter it therwith prodwced wheras if the petitioner had bein present and heard upon his Jwst and relevant defensses noe such decreit could ever have gone owt against him who is only called conveined and condemned in absence qwa pretended Landlord to the said John Mcillchoan for the haill goods lybelled upon the pretended confessione of the said Mcillchoan that he being goeing in September J^aj vi^c and nyntie yeirs to earne for meall a company of broken men ther in armes (being the hole of the Heighland insurrectione) mett with him on the road and caried him back prisoner Sixtein Mylls as a gwide to them and in recompense of his Loss and travell would needs Leave with him one of the meers taken away by the said company of robbers from the charger And which mear the said Mcillchoan did within a weeke or two therefter delyver back to the charger as is evident frae the decreit itself at the Letter B And for the reasones and causes following Viz primo allwayes denying the petitioner was Land Lord the tyme lybelled As to which however ther be a pretended acknowledgement of the petitioners foisted into the decreit by the chargers procurators Moyan being Fiscall yet the petitioner refwises any Swch confessione of his nor can the clerk prodwce any warrand therfore And Secundo Esto he were Landlord (as he was not) yet qwa swch he cowld never bein condemned nor are Landlords lyable for ther tennents in broken tymes of rebellione or warr as the tyme lybelled was nor is it to be Supposed that when a Cowntrie or people revolts from or rebells against ther dread Soveraigne The Kings majestie That privat Gentlemen can make ther men Subject to ther Comands And which was accordingly the opinion of The Counsell In the process of depredatione persewed by Killmaronock againsts the Land Lords of the depredators Lykeas his Majesties Advocat in answer to a qwerie proposed by Some of the Commissioners of Justiciarie of the said district Concludes that the acts of parliament against Landlords and Chifteans binds now only in tyme of peace And which is Soe far Confirmed by ther Lordships that upon a representatione made by his majesties Advocat and Sollicitor in the lyke caise Ther Lordships by ther act dated the tenth of Febrwary J^aj vi^c nyntie five Sisted all proces and executione against all within The Earle of Argylls Jwrisdictione in generall and severall others in particular for whom the representatione was made as ane expedient for the peace of which Solwtione given by the Advocat and act of Cownsell coppies are therwith prodwced And that this robberie was Committed by men in armes in ane hostile maner appears by the lybell prodwced Tertio Albeit the foirsaid act had being done in tyme of peace And the petitioner The Land Lord (as is not) yet the Law and acts of parliament against Land Lords being nyntie thrie act parliament third James the Sixth bears only that Land Lords Shall be debt bownd for ther men tennents and servants in caise they doe not present them to Jwstice And ita est that in this caise John Mcillchoan the pretended depredator was actually presented to Jwstice and hanged by Sentance of the Court held at Stireling the very date of this decreit charged upon Qwarto Ther Lordships by ther opinione in Carnall as to the extent of restitutione Fand that even the depredators owght only to restore if aither the goods robbed and Stollen were extant in ther possessione or they ther by locupletores facti as is evident frae the beginning of The Lord Advocats Solwtione But soe it is that in this caise it would appeare that Mcillchoane himself would be frie from restitutione except only of ane meer which was all he gott and which as appears by his confessione at Letter B (the probatione soe farr as he gott and qwoad wltra the decreit even against him might be qwarrelled et multo magis qwo ad the petitioner The Landlord the same is totally nwll And ought therfore not only to be Simplicitor Suspended withowt cawtione or consignatione But even the said John Campbell charger owght and should be decerned in repetitione of the number of […] Rowes pounded by him from the petitioner upon the pretence therof or payment of the sowme of […] as the price of each of them which bill of Suspensione being upon the Eightein of March Last bypast read in presence of the saids Lords They ordained the chargers to sie and answer the Same And in the mean tyme Sisted executione And the Saids chargers haveing sein the said bill Gave in particular answers therto And the saids Lords of his majesties privie Cownsell haveing this day considered the said bill of Suspensione and answers foirsaid made to the Same They heirby Recommend To The Lords Commissioners of his majesties Justiciary of the Sowth and west districts for the Highlands to reconsider the decreit charged on at the first meeting in respect it is pronunced in absence And in the meane tyme Sists all executione at the chargers instance against the Suspenders untill the decreit charged on be revised by the Commissioners foirsaids and determined by them