D1698/3/5
D1698/3/51
Order
The Lords of his majesties privie Cownsell Doe heirby Recomend The Lord Forbess to The Lords Commissioners of his majesties Thesaurie in reference to the debts resting to the said regiment be the Thesaurie And also in reference to the debts resting be the said regiment to The Lord Forbess
1. NRS, PC2/27, 98r-99r.
1. NRS, PC2/27, 98r-99r.
D1698/3/4
D1698/3/41
Order
Forasmuchas applicatione and Complaint hath bein made to Patrick Earle of Marchmont etc The Marqwes of Tweedale The Earle of Southerland The Earle of Buchan The Earle of Lauderdale The Earle of Leven The Earle of Annandale The Earle of Ruglen The Viscount [of] Tarbatt The Lord Montgomry The Lord Forbess The Lord Carmichael The Lord Carmichaell2 The Lord Ruthven The Lord Advocat The Lord Justice clerk The Lord Fountainhall The Lord Anstruther The Lord Rankeillor The Laird of Grant The Laird of Pollock The Laird of Blackbarrony The Lord Proveist of Edinburgh And The Laird of Kellburne Lords of his majesties most honorable privie Counsell for the Kingdome of Scotland Representing That James Stewart Servitor The Earle of Southesque and John Stewart in Coattowne of Bonnytowne Have procured affedavits to be made befor the magistrats of Montrose aither of them in favoures of himself for proveing them to be nearest kinsemen by blood and consanqwinitie to the deceast David Stewart Late of the Island of Barbadoes And that Letters of acturney had therupon bein granted by both of them for intrometting with and disposeing upon The estate which belonged to The Said David Stewart the tyme of his death and the veritie of tehse affedavits being by them qwarrelled hinc inde befor the saids Lords of privie Counsell wherby it does not at present certainly appeare whither the said James or John Stewarts be the nearest kinsman to the said deceast David Stewart Therfor The saids Lords of his majesties privie Counsell for the kingdom of Scottland doe Suspend and dischairge all effect of the foirsaids affedavits untill exact and legall tryall be made befor them by probatione and other wayes whither the said James and John Stewarts be nearest kinsmen to the said deceist David Stewart And heirby The saids Lords reqweist and recomend To The Honorable The governour and all inferior magistrats of the said Island off Barbardoes to dischairge and cause Superceed all procedure of Law upon the foirsaids affidavits taken befor the magistrats of Montrose and Letters of Actwrney following theron for intrometting with or disposeing upon the estate moveables Chatles which belonged to the said David Stewart the tyme of his decease or any pairt of the Same untill a full and trwe report efter tryall taken befor the saids Lords of privie Counsell for the Kingdome of Scotland be made of the said mater And therby it be made appeare to the Said Government and magistrats of the said Island of Barbardoes who is reallie the nearest Kinsman to the said deceast David Stewart Signed in presence and by order of The Lords of his majesties most honorable privie Counsell for the Kingdome of Scottland By Patrick Earle of Marchmont Viscount of Blasonberrie Lord Pollwarth of Pollwarth and Lord High Chancellor of Scotland And the seall of the privie Counsell is by order foirsaid hereto affixt.
1. NRS, PC2/27, 98r-99r.
2. Sic.
1. NRS, PC2/27, 98r-99r.
2. Sic.
D1698/3/3
D1698/3/31
Decreet
Anent the lybell or Letters of complaint raised and persewed befor The Lords of his majesties privie Counsell at the instance of James Stewart Servitor to The Earle of Southesqe with concurse of Sir James Stewart his majesties advocat for his highnes interest in the mater wnderwritten Mentioning That wher all open and manifest fraud and wnjust designes in carieing away and imbazleing the fortwne of any persone efter his decease from his trwe and Laufull air and nearest of Kinn and endeavoureing to convey the Same to any other persone who is aither of no relatione to the persone deceast or not so near to him as the persone who hes bein Served air Are by the Laues of all well governed realmes and by the Lawes and acts of parliament of this natione are Crymes of a high nature and Severely pwnishable and Speciallie magistrats of Burghs who ought to be executors and dispenders of the Law to others haveing a hand in Swch contriveances ought and Should be Severely pwnished Yet trwe it is That David Stewart Late in Barbadoes haveing died ther and Left a considerable fortwne behind him both of Land and money the Said James Stewart Complainer did prove his propinqwitie of blood be famows witnesses befor the magistrats of Montrose Beareing him to be descended of John Stewart brother to the said David Stewart and that the said David was his grand wncle whose testimonies and depositions were signed by the proveist and baillies of Montrose and the townes Seall appended therto and the Said Complainer was also served and retourned as the only true and nearest air to the said David Yet John Fullartone of Kinnaber Mr Isaac Fullartone advocat his brother Hercules Smith merchand in Montrose ther brother in Law and Alexander Turnbull present proveist of Montrose Alexander Turnbull George Auchterlony Baillies ther and Andrew Craik clerk ther John Stewart Shoemaker in Bonetowne and James Williamsone in Collone of Uestertowne in the paroch of Criaig Concurring with Mr Thomas Fullartone brother to the said John Fullartone of Kinnaber and Sometyme acturneyes in Barbadoes (who as appears by Severall of his Letters therwith produced had ane wnjust designe to defraud the said David Stewart his nearest of kin of his estate both in money and Land) Did contrive amongst themselvs to gett ane other persone of the name of Stewart2 proven to be of kin and relatione to the Said David Stewart as is evident by a Letter from Kinnaber to The Earle of Sowthesque Albeit they knew that the said James Stewart complainer had alreadie proven his propinqwitie of blood to the said David Stewart and was air served and retourned to him and for that end they addwced William Chrystie dweller in the paroch of Craig and the said James Williamsone two witnesses who were beggars and knew nothing of the affair But deponed as they were instructed as appears evidently in that the one of them William Chrystie makes it cleare in his depositione that he did not soe much as know in what paroch Greenden is thowgh he depones that to be the place wher the said David Stewart was borne and wher he knew his father James Stewart and his mother Grizall Carnegie liveing expresslie asserting it to be in the paroch of Farnwell wheras it is in the paroch of Kinnaird and the other James Williamsone being brought befor Robert Reynold Late proveist of Montrose and William Coults Late baillie ther (by the said Mr Isaac Fullartowne requyreing them to take his depositione) was not able to ansuer any of the interrogators putt to him but was soe confounded that the proveist commanded him away And being prevailled on efter the Court by the said Mr Isaac with his brother Kinnaber and ther good brother Hercules Smith to hear him propose the interrogators the said Williamsone was not able to answer even in the method Mr Isaac proposed the qwestions All which the Said proveist and baillie can depone And even by ther depositiones they only prove John Stewart Shoemaker in Bounetonne to be descended of ane wncle of the Said David Stewarts wheras James Stewart the Earle of Southesques Servant is proven to be descended of Davids brother and Soe the nearer relatione and the trwe air Notwithstanding wherof they have made wse of this probatione haveing gotten Alexander Turnbull present proveist of Montrose Alexander Turnbull his Sone and George Auchterlonie present baillies ther to Signe the Samen and Andrew Craik clerk as notar to subscribe for the wittnesses and to append ther townes seall therto And they have sent this probatione So attested away with a Letter of acturney from the said John Stewart to some persone in Barbadoes to intromet with uplift and dispose upon the said David Stewart his effects ther Kinnaber haveing transacted with the said John Stewart for a Small and inconsiderable Soume By all which it is evident that the said John Fullartoune of Kinnaber Mr Isaac Fullartoune his brother Hercules Smith ther good brother and John Stewart Shoemaker are gwiltie of open and manifest frawd and most wnjust designes in carieing away and imbazleing the said David Stewart his fortoune in prejudice of the said James Stewart Complainer his only trwe air which can be interpret to be no Less then Robbertie and thift and the Said Alexander Turnbull proveist of Montrose Alexander Turnbull his Son and George Auchterlony baillies ther who took the Last probatione infavoures of the said John Stewart and Andrew Craik ther clerk who Subscribed as notar for the wittnesses are airt and pairt in the said wicked and fraudulent contriveance Seing the said James Stewart complainer had Led his probatione befor the Last magistrats of the Same burgh and had ther Subscriptions and ther seall appended therto and was served air to his said Grand wncle befor them and the said present magistrats ther Signeing the depositiones in favoures of the said John Stewart and appending the seall of the burgh therto being contrair to what the former magistrats had done efter ane exact and fwll tryell taken befor them for proveing the said James Stewart Complainer his propinqwitie and his being trwe air to the said David Stewart his Grandwncle is a reflectione upon the Justice and eqwitie of the natione And therfor the foirnamed persones ought not onlie to be decerned to send a contrair declaratione recalling the Last and acknowledgeing the said James Stewart Complainer his propinqwitie and attesting that he is the only nearest and true air to the said David Stewart And that he only hath right to the said David his haill estate in Land and money But also to find Sufficient Cautione to make up what prejudice or damnadges he hath Sustained or Shall Sustaine though ther former attestationes and the Letter of acturney following theron And alsoe to be pwnished in ther persones and goods to the terror of others and to prevent the Like wicked and fraudulent contriveances in tyme comeing And anent the charge given to the saids defenders to have compeared personallie before the saids Lords of his majesties privie Counsell at ane certaine day now bygone to have ansuered to the ground of the above complaint and have heard and sein such order and course taken theranent As the saids Lords Should think fitt under the paine of rebellion etc As in the principall Lybell or Letters of complaint with the executiones therof at more Lenth is contained As also anent ane other Lybell or Letters of complaint raised and perswed befor the saids Lords of privie Cownsell at the instance Alexander Turnbull present proveist of Montrose Alexander Turnbull and George Auchterlony Baillies ther Mr Isaac Fullartowne advocat Hercules Smith merchant in Montrose John Stewart Shoe maker in Bonetowne James Williamsone in Catton of Westertowne with Concurse of Sir James Stewart his majesties advocat for his highnes interest in the mater wnderwritten Mentioning That wher by the Laues of this and all uell governed nationes the tradwceing and defameing of our Leidges as gwiltie of theift and robberie is Severely pwnishable Especiallie these callumnies are reduced into infamows Lybells misrepresenteing persones of honor and integritie to the government And sicklyke by the one hundereth and fourtie act parliament fourtein King James the fifth It is staitut and ordained that if any persone murmurr against any Judge and proveth not a Sufficient ground for the Same he shall be pwnished with tinsell of his honor fame and dignitie and by the Lawes and custome of this natione Such persones as have not fame or dignitie to Lose ought to be pwnished in ther persones to the terror of others to Comitt the Lyke wher the meanes of ther conditione exempts them from the ordinary pwnishment As also by the tuentie Seventh act parliament Seventh James the fifth It is provided that whosoever Should molest trouble or wnqwiet the proveist and baillies of any burgh in wseing ther Liberties and priviledges they Should undergoe the paine of comon of oppressors And Likewise by the Lawes and customes of this kingdome the practizieing of wittnesses and makeing them depone for takeing away the Just rights of any of the Leidges by Setting up ane imposture as a true Successor of a defwnct to the exclusione of the Lineall Successor by blood whill the said reall and true Successor had commenced his probatione that soe the same might be transmitted to be cognosced by the Judges abroad wher the Subject did lye be of most daingerows conseqwences tending to the interversione of the propertie of our Leidges and the Subversione of the faith of publict Judicators Yet trwe it is and of veritie That James Stewart Servitor to The Earle of Southesque with concurse and assistance of Mr James Martine Late regent in Standrews is gwiltie of the crymes befor mentioned or ane or other of them in so far as primo he the said James Stewart by instigatione of the foirsaid Mr James Martine did wnjustly contrive the defrauding of the Complainer John Stewart in Bonetoun of his trwe interest which he hes right to as nearest of kin to the deceast David Stewart who died Lately in Barbardoes as appears by the following accompt of ther procedure viz Mr Thomas Fullartoune Late Sollicitor generall in Barbadoes haveing given ane accompt by a Letter to his brother The Laird of Kinnaber That the said David Stewart had told to him the said Mr Thomas his pedegrie and place of his nativitie in Scotland and particularlie that he had ane wncle called Robert Stewart of whom the said Complainer John Stewart he proved himself to be the grandchyld but no wayes mentioned that he had any brother wherupon the said Mr Thomas desyred Kinnaber to find out the defuncts nearest relatione and transmit the affidavits therof taken befor the magistrats of Montrose Conforme to the English forme that so the Successione might not fall to the […] According wherunto the said Complainer John Stewart adduced Some witnesses and particularly William Chrystie who proved his propinqwitie befor the magistrats of Montrose But Kinnaber haveing published the Letter and Mr Martine haveing gott ane of the doubles therof the said James Stewart is […] and resolveth to auteriorat the said Complainer And in order therto ther are wittnesses made to Signe oathes befor the minister of Kinnaird for proveing that the said James did descend of the defuncts brother that soe these witnesses might be fixed against recanting when they came to depone over againe befor the magistrats Notwithstanding of which precantione the first witness named William Rorie deponed negative uhen he was adduced before the magistrats But being immediatly interrupted by […] Howat Chamberland to The Earle who told proveist Ronald that the witnes was mistaken since he had deponed wtherwayes formerly and soe produced a double of his depositione before the minister and craved the witnesses might be allowed a while to recollect himself which being indulged The witnes returned to Court verie well instructed in his depositione As also James Dow another witness negative and so was dismissed as not probative But the Same man therefter being adduced depones in express termes Conforme to the former Notwithstanding of which irregular and wnarrantable procedure Maister Martine presents the foirsaids depositiones befor ane inqwist and obtaines James Stewart to be Served air to the defunct tho the said James had Severall tymes denyed any contigencie of blood to the defwnct before he knew of any prospect of advantage to be raised by it and all this was done efter the said Complainer John Stewart had Commenced his probatione The said James and his abbattors therby intending by a fraudulent anticipatione to deprive him of the Successione befor mentioned Secundo the said John Stewart and Mr Martine forseing that the Complainer the said John Stewart could not but prevaill in the event fall upon a project of preventing him by raiseing a most callumniows and Scandallous lybell against the complainer our saids Lords of privie Counsell wherin they are Staidged as gwiltie of noe Less then thift and robberie and that meerlie because they the saids magistrats did noe more then what is wswall and customarie in the lyke caices viz To take the depositiones of such witnesses as were offered to depone befor them without So much as Judgeing whither ther depositiones did prove or not or without so much as attesting that the said John Stewart was nearest of kin to the defwnct But allenarly narrating the mater of fact that past befor them And the said Mr […] Fullartoune asked onlie according to his informatione from his client the said John Stewart being consciows of the right of non els And the said Hercules Smith was not in the Least concerned in the foirsaid mater But only accedentallie present when the affair was Legallie gone abowt by the magistrats of Montrose and the said James Williamsone ane of the Complainers is accaused for thift and robberie for his deponing the trweth according to his conscience and which trweth is not only Sworne to by other wittnesses But is also nottar in the Countrie wherby it is obbiows how wnjustly the Saids Complainers are molested and traduced Tertio It does furder appear that the foirsaid complaint against them befor the Lords of our privie Counsell hes bein raised out of malice and designe to putt the saids Complainers to trowble and expenss by the instigatione of the said Mr Martine without any reasonable hope of furder Success In so far as ther being one Mr George Campbell incarcerat in the tollbwith of Monross he was given owt wnder the name of Martine of designe that his other creditors might not know of his being ther and therby they might be cheatted from arreasting Him the said Mar Martine requyred them to sett him at Friedome without a charge to sett at Libertie which they could nowise doe by the Lawes of this Kingdome Notiwthstanding wherof the said Mr Martine was so farr irritat at our doeing our dwetie that he expressly threatned that he Should make them reprnt it and they have now fownd the frwits therof by receaveing the foirsaid Lybell befor our Saids Lords And therfore the said James Stewart and Mr James Martine as actors airt and pairt in the abuses before mentioned ought and Should not only be pwnished in ther persones and goods for ther defamatione practiseing of wittness and intervensione of the Successione befor exprest But also ought and Should be decerned to refownd and pay to the saids Complainers ther damnadge and expenss incurred by Such a maliciows process and to find Cautione to the Complainers John Stewart that he Shall incurr no prejudice through the foirsaid pretended probatione and service in favoures of the said James Stewart which hes bein patched up in maner befor exprest to the terror of others to Commit the lyke in tyme comeing And anent the chairge given to the saids defenders to have Compeared personallie befor the saids Lords of our privie Counsell at ane certaine day now bypast to have ansuered to the grounds of the above Complaint and to have heard and sein such order and Course taken ther anent As the saids Lords Should think fitt wnder the paine of rebellion etc As in the principall lybell and Letters of Complaint with the executiones therof at more Length is contained The above Lybell at the instance of James Stewart Servitor to The Earle of Southesque with concurse of his majesties advocat Against John Fullartoune of Kineber Hercules Smith merchand in Montrose Alexander Turnbull proveist ther Alexander Turnbull and George Auchterlonie baillies ther Androw Cracktowne clerk ther John Stewart in Coltoune James Williamsone in Cottertoune and Mr Isaac Fullartoune Advocat being this day Called in presence of the Lords of his majesties privie Counsell and James Stewart the persewer Compeareing personallie with Sir David Thores Mr Thomas Skeen and Mr David Dallrimple as advocats for him and Mr James Martine partie called as defenders in the reconventione efter mentioned And the said Hercules Smith Alexander Turnbull George Auchterlonie Androw Craick John Stewart and Mr Isaac Fullartoune Six of the defenders in the principall Lybell who are also persewers in the reconventione Compeareing personallie and John Fullartoune of Kinaber Alexander Turnbull proveist and James Williamsone in Cattertoune thrie of the defenders in the principall cause who are also persewers in the reconvention being Lawfully cited oft tymes called and not compearing and Mr David Cwninghame Sir Alexander Cuming of Culter Mr David Forbes and Mr Francis Grant Compeareing as advocats for the haill defenders persewars in the reconventione And the lybell of reconventione at the instance of the defenders in the principall cause against the said James Stewart persewer therof and the said Mr James Martine being alsoe called and both pairties haveing Compeared as above marked The principall Lybell and answers therto being read in presence of the saids Lords of privie Counsell They doe heirby grant full power and Commissione to […] Earle of Strathmore Shirreff principall of the Shirreffdome of Forfar and to Mr William Gray of Innereichtie his Lordship3 depute in the said office with power to them to choise ther own clerk for whom they Shall be answerable to take and receave the oathes and depositiones of Such famous wittnesses as are cited befor the Saids Lords upon the principall Lybell raised at James Stewarts instance and also to take and receave the oathes and depositiones of Such famows wittnesses as are cited befor the saids Lords upon the lybell of reconvention raised at the instance of the defenders against the said James Stewart and Mr James Martine And Speciallie to take and receave the oathes and depositiones of such famows wittnesses as Shall be addwced befor them for cleareing who is the nearest of kin to the deceast David Stewart Late in Barbardoes and whither the said James Stewart Servitor to The Earle of Southesque or the said John Stewart in Cattowne have the nearest propinqwitie of blood to the said defunct And recomends to the said Shirreff and his depute to cause ther clerk whom they shall choise to draw up the foirsaids depositiones in write and to cause the witnesses Subsribe the Samen And also that they Subscribe the Samen themselves and therefter deliver these depositiones to Signed to the respective pairties themselvs and have assigned and heirby assignes the first Councell day of Juny next to come to both pairties for reporting the saids depositiones to the saids Lords of privie Counsell And in the meantyme Continwes the said mater untill the day foirsaid and grants dilligence for citeing of wittnesses for proveing the propinqwitie of blood to the said David Stewart
1. NRS, PC2/27, 92v-98r.
2. The word ‘proven’ scored out here.
3. Sic.
1. NRS, PC2/27, 92v-98r.
2. The word ‘proven’ scored out here.
3. Sic.
D1698/3/2
D1698/3/21
Decreet
Anent the bill of Suspensione given in to The Lords of his majesties privie Counsell by James Donaldsone yownger merchand in Elgine James Cheyslie Chamberland to the Earle of Murray and David Dow tenent to the said Earle Mentioning That wher the said James Donaldsone is charged by vertue of The Commissioners of Justiciary for the notherne district ther Decreit obtained at the instance of Patrick Count Lessly of Ballqwhan to make payment to him of the Soume of Four hundereth and fourscore six punds Eleven Shilling four pennies Scotts money as the price of ane Gray powny alleadged belonging to him and in the possessione of the said James Donaldsone And of the expensses Loss and damnadges of two horse which the said charger hes payed or is to pay owt with a tenth pairt of the Said Soume more Conforme to and for the ends Specified in the Commissione wnder the great Seall granted to the Saids Commissioners And of fourteine dollars alleadged modified by the saids Commissioners for extracting the said decreit All specified and contained in ane pretended decreit alledged obtained by the said Patrick Cownt Lessly Against the petitioner befor the saids Commissioners upon the tenth day of november Jaj vic nyntie seven yeirs within a certaine Short Space next efter the chairge wnder the paine of pounding Most wrongousely and wnjustly for the reasones following to witt primo That the foirsaid pretended decreit is intrinsicallie nwll in soe farr as at the figwres 1:2:3: it lybells and conclwdes Capitall pwnishment and yet at the figure 4 where a double of the Lybell and wittnesses names were given to the petitioner it does not beare that he gott ane List of Assisers Conforme to express act of parliament theranent And ther is no mentione in the decreit that the said charger restricted his Lybell to restitutione And yet the Commissioners proceeded to advyse ane probatione without ane Assizer which is contrair to the fundamentall constitutione of the natione and the express tennor of ther Commissione By which they are only impowered to proceed upon the verdict of ane assize And this is the magna charta of the Leidges Securitie Secundo the decreit is intrinsicallie null as wanting any probatione that the horse lybelled were actwallie Stollen from the persewar which was absolutely necessary to be proven befor the bwyer bona fide in a publict mercat could be made lyable aither criminallie or in restitutione Since in moveables possessione presumes a title by our Law And the perseuer for moveables must prove two things viz his propertie and the modus qwomodo desyt possidere Notwithstanding wherof the chargers wittnesses at the figures II doe only depone that the two horse lybelled in the said decreit did belong to Count Lessly charger And that the pownie was Lay marked in the petitioners possessione But they depone not one word that ther horses were Stollen Soe that the pownie might have come in a Laufull maner to have bein sold to the petitioner And which is presumed in Law Since it is impossible to prove the progress of moveables otherwayes then by possessione yet the majority of the Commissioners were soe kein as to find at the figure 8 in the said decreit not only that the horse did belong to Ballqwhan But alsoe that they were Stollen from him at one tyme and from one place then which ther could be nothing more officiows Tertio the decreit is null as being ultra petita In soe farr as the price of the pownie is only lybelled to be fiftie pwnd and the price of the horse is lybelled to be Six hundereth merks Notwithstanding wherof the said decreit at the figure 5 decernes the Soume of Four Hundereth and eightie six pund threttein Shilling four pennies as the price of the pownie being one of the two horse lybelled and of the expensses of both the horses which the said chairger had payed out or was to pay owt Qwarto ther is notorious iniqwitie in the interloqwitor for at the figure 9 by plwralitie of votes The Commissioners fand that the bwying on a mercat Day in the high Street at welve a cloak with burgh and Hammell was not Sufficient to assoillzea the petitioner from damnadges though he presentlie offered restitutione of the pounie itself at the barr and the unjustice is yet the greater that not only David Dow who was the Seller is Solvent And that James Hattmaker who was one of the burgh and hamells is a city Securitie And that Mcqween who was the first seller is imprisoned But also the wittnesses at the figure 6 expressly Depone that one William Hutchion who was the other burgh and hamell was esteimed responsall Soe that 2 the most Cautiows man could have behaved no more legally and fairly for the chargers behove then the petitioner did Its acknowledged that the possessor is allwayes bownd in Simple restitutione to the proprietar But ther could never be a conclusione of Damnadges against a pairtie wnles he be in fault and mora for restitutione is the effect of Dominion But Damnadges are the effect of a delict the petitioner was in no delict Since he offered back the pownie without deterioratione for he neither knew nor is it as yet proven that this pownie was ever Stollen for he bought upon the publict faith according to the Lawes of the Kingdome And finallie he procured Securitie for the charger beyond what he was obleidged By obtaining Mcqween who was the first setler imprisoned And the said David Dow to be decerned befor the Shirreffs Qwinto Ther was evident iniquitie in the interloqwitor for at the figure 10 by majoritie of votes the Commissioners fand that damnadges were not only due for the pownie then interpelled But also all the other damnadges for the other horse except allenarly his price It being a principle owght not to goe beyond the principall And the conseqwences therof wherfore it necessarly followed that the petitioner being assoillzied from the other horse he ought also to have bein assoillzied from the proportionall pairt of the damnadges Especially Considering that he was bona fidei possessor and had purchased according to Law and with soe great Cautione as afoirsaid Sexto the said David Dow and the said James Chrystie Doe concurr in procureing this Suspensione upon these two growndes viz primo that the chargers decreit ought to be Suspended and the said David Dow the sellar Liberat in conseqwence as to him the said James Chrystie he could never be fownd lyable Since he did all that Law requyred haveing prodwced the said David Dow who accordingly compeared and confessed in Court Secundo it appeares by the said decreit at the Letters B B that the said David Dow bought the horse befor famows wittnesses from the said Mcqween who is now prisoner in the tollbwith of Forress as afoirsaid so that both the said James Donaldsone who bought the horsie and the said David Dow who sold the Same to him being bona fidei purchasers ther is no more due by them to Balqwhan then Simple restitutione which they have alreadie offered and are yet willing to give for peace Sake tho he hes not yet proven the powny was Stollen so that he can only have actione against Mcqween aither Criminallie or civillie for his damnadges And therfore The Letters owght to be Suspended presently Simpliciter without obleidgeing the petitioners to Longer attendance upon a Sist since all the foirsaids reasones are instantly verified by ane extract of the decreit itself therwith prodwced And therfore etc yet for Superabundance they Shall fand Cautione acted in ther Lordships bookes As the said bill of Suspensione in itself at more Lenth proports Which bill of Suspensione being upon the twentie third of december Jaj vic nyntie seven yeirs read in presence of the saids Lords of privie Counsell They alloued Count Lessly the charger to Sie and ansuer the said bill untill ane certaine day and in the mean tyme Stopped executione upon the decreit chairged on And therefter The Councill haveing past the said bill the chairger Gave in a petitione to the saids Lords Craveing that ther Lordships wowld Stopp all furder expedeing of the said suspensione and allow the petitioner his answers to the reasones therof to be yet given in that the reasones might be discust upon the bill And that the whole mater might be Layed befor the saids Lords And Craveing that ther Lordships would grant warrand for citeing […] Donaldsone clerk to the process wherin the decreit charged on is pronwnced to exhibite in the hands of the clerks of Counsell the growndes and warrands of the decreet chairged on And the saids Lords haveing upon the Seventh day of Janwary Last by past Considered the said petitione They by ther deliberance theron ordained the said Clerk to the Commissioners of Justiciary to exhibite and produce in the hands of the clerks of privie Counsell the haill grownds warrands and minwts of the decreit charged on And alloued Letters of dilligence to be direct at the chargers instance to the effect foirsaid into ane certaine day now bypast and assigned the Same day to the Suspenders to debaite the reasones upon the bill of Suspensione And in the mean tyme Stopped the giveing out of the said Suspensione alreadie past And the said charger haveing accordingly taken owt a dilligence and caused execute the same against the saids Commissioners ther clerk The said clerk produced in the hands of the clerks of privie Cowncell the grownds and warrands following of the decreit chairged on Viz principall Lybell Lord Count Lesslie against James Donaldsone dated the second day of November Jaj vic nyntie Seven yeirs Beareing on the foot and back therof a pairt of the debate ariseing therfrom Item Two Severall executeiones one against Donaldsone and the other against wittnesses The first dated the Second day of November and the other the first and Second dayes of the Samen Jaj vic nyntie Seven yeirs Item thrie half Sheets of paper back and foir Containing the rest of the debate the witnesses depositiones Count Lessly his own depositione with the Commissioners interloqwitor upon the said lybell and debaite Item James Donaldsones exculpatione dated the Second of november Jaj vic nyntie Seven and executione therof dated the third day of november the said yeir Item ane extract of ane process of releiffe at James Donaldsones instance against David Dow wnder the hand of Andrew Monroe Sherreff clerk of Murray Efter productione of the which grownds and warrands The said bill of Suspensione being againe upon the twentie fourth day of Febrwary Last by past called in presence of the saids Lords to debaite the reasones therof upon the bill and the said James Donaldsone one of the Suspenders compeareing personallie and the said James Chrystie and other Suspenders being oft tymes called and not compeareing personallie and Sir James Stewart his majesties Advocat and Mr Francis Grant Compeareing as Advocats for3 the haill 4 Suspensders 5 And the said Count Lessly being oft tymes called and not Compeareing personallie But Sir Patrick Home Mr Hewgh Dalrimple and Mr James Fergwsone Compeareing as Advocats for him The bill of Suspensione and ansuers therto for the charger being both read And both pairties at length heard to debaite in the said mater The Saids Lords nominated and appointed a Comitie of ther own number for considering the decreit charged on with the instructiones and grownds and warrands therof And to report ther opinion in the said mater to The Counsell Which Comitie haveing accordingly mett They gave in ther report bearing That the Comitie haveing considered the reasones of Suspensione and the chargers ansuers with the decreit charged on and grounds and warrands therof They fand that the decreit is not formall and that the interloquitor did not agrie to the probatione nor were according to Law And therfore it was the Comities opinion That the Letters Should be Suspended Simpliciter As the Said report at more Length proports which report with a petitione given in by the said Patrick Count Lesslie the chairger being both this day read in presence of the saids Lords of privie Counsell and considered by ther Lordships The Saids Lords doe heirby approve of the said report And have Suspended and heirby Suspends the decreit charged on at the instance of the said Patrick Count Lesslie against the said James Donaldsone James Chrystie and David Dow Suspenders Simpliciter in all tyme comeing And the saids Lords have refwised and heirby refwises the desyre of the said petitione given in by the said Patrick Count Lesslie
1. NRS, PC2/27, 88v-92v.
2. The words ‘its acknowledged that the possessor’ scored out here.
3. The word ‘him’ scored out here.
4. The word ‘of’ scored out here.
5. The words ‘and answers therto for the chairge being both read and both pairties at Lenth heard to debaite in the said mater The saids Lords’ scored out here.
1. NRS, PC2/27, 88v-92v.
2. The words ‘its acknowledged that the possessor’ scored out here.
3. The word ‘him’ scored out here.
4. The word ‘of’ scored out here.
5. The words ‘and answers therto for the chairge being both read and both pairties at Lenth heard to debaite in the said mater The saids Lords’ scored out here.
D1698/3/1
D1698/3/12
Sederunt
Lord Chancellor; Marquis of Tweedale; Earl of Southerland; Earl of Bwchan; Earl of Lauderdale; Earl of Leven; Earl of Annandale; Earl of Ruglen; Viscount Tarbatt; Lord Montgomry; Lord Forbess; Lord Carmichael; Lord Ruthven; Lord Advocat; Lord Justice Clerk; Lord Fountainhall; Lord Anstruther; Lord Rankeillor; Laird of Grant; Laird of Pollock; Laird of Blackbarrony; Proveist of Edinburgh; Laird of Kellburne
1. NRS, PC2/27, 88v.
2. NRS, PC2/27, 87r-88v.
1. NRS, PC2/27, 88v.
2. NRS, PC2/27, 87r-88v.
A1698/3/5
A1698/3/51
Act
The Lord High Chancellor acquainted the Councill That by Commands from his Majesty His Lordship was called to wait upon him att Court, And Therfore Declared That if ther Lordships or any of ther number hade any Commands to Lay upon him he was most willing and ready to receave the same and would attend them in councill for that Effect.
1. NRS, PC1/51, 391.
1. NRS, PC1/51, 391.
A1698/3/4
A1698/3/41
Act
The Lords of his majesties privy Councill considering That by the fifth article of the sixteenth act of the Thrid session of the second Parliament King Charles the 2d Concerning the Justice Court It is Expressly appointed That once in the year in the moneths of Aprile or May circuit Courts be Keeped in the way and manner Expressed in the said act, And the Lord Justice Clerk having desired to Know and Receave the Councills orders concerning the circuit courts for this year Jaj vic nyntie Eight. The saids Lords of his majesties privy Councill in Respect that the present circumstances and Exigences of affairs doe not require circuits for this year Jaj vic nynty Eight att the tymis forsaids Doe heirby Suspend and Discharge the Lords of Justiciary there going in circuits att this tyme. And Exoners them of what by the said act They are appointed to doe for this year Jaj vic nyntie Eight.
1. NRS, PC1/51, 391.
1. NRS, PC1/51, 391.
A1698/3/3
A1698/3/31
Act
Anent The Petition given in To the Lords of his majesties privy Councill by Kenneth Earle of Seaforth Shewing That where Ther Lordships by ther Interloquitor of the date the 17th of February Instant Did Confine the petitioner untill the first day of July next to this side of the water of Forth, And ordained the petitioner to find the Lord Duffus Sir Patrick Ogilvie of Boyne and Sir William Scott younger of Parden Cautioners That He shall appear Before ther Lordships upon the first Tuesday of Aprile next And That he should Live peaceably under and with all Submission To the present Government and remain confined on this side of the water of Forth as said is In obedience to which Interloquitor The Petitioner Granted Bond and found the forsaids persons Cautioners for him, as to which he now with all Submission humbly represent That his being confined on this syde of the Water of Forth is no more security to the present Government Then if he were in any other place of the nation But on the contrair It is a great Loss to the petitioner to be off the head of his affairs for so long a Tyme and att such a season when Lands are to be sett. And whereby the Petitioner may be att a Considerable Loss and can doe good to none And he being most willing to Give all the Security possible That he shall not only Live peaceably But Likewise shall appear Before ther Lordships att such dyetts as they shall please appoint for any cause for which the petitioner may be summoned or charged and he is Content to Renew the former Caution granted for him Before his Late appearance or the like responsal caution in these or such terms as ther Lordships shall Judge propper upon the delivering up of the Lord Duffus and other persons ther Bond And that the samen Continue untill he find the said Caution and seing he came here in obedience to ther Lordships commands and upon which consideration They were pleased to allow him a safe conduct and also seing ther is a proces depending against him before their Lordships att the Instance of Sir John Dempster and Bain of Tulloch to which he is ready to answer at the dyett ther Lordships have appointed him to be Insisted against att the Instance of his Majesties Advocate And Therefore Humbly Craving to the Effect underwrittin as the said petition Bears. The saids Lords of his majesties privy Councill Having considered the above petition given in to them by the Earle of Seaforth They doe heirby allow his Lordship to be att his full Liberty without Confinement The Earle always before Extracting heirof Giving Bond and finding […] Brodie of that Ilk Duncan Forbes of Culloden Mr Alexander McKenzie of Davachmalnack Murdoch McKenzie Fareburne, Kenneth McKenzie of Suddie Alexander McKenzie of Aplecorss Alexander McKenzie of Balmaduff, Rory McKenzie of Cul […], Mr Simeon Mckenzie of Torriden Alexander Graham of Drymie and Rory McKenzie of Reidcastle his former Cautioners as Cautioners therein acted in the books of privy Councill That the said Earle shall Live peaceably under and with all submission to the present Government of his majestie King Wiliam and That he shall not act consult nor contrive any thing in prejudice thereof nor Converse or correspond with any rebells and That he shall appear Before the saids Lords of privie Councill upon the first Councill day of July next to Come or att whatsoever tyme betwixt and that day he shal be called or required thereto under the penalty of Two Thousand pounds sterling in caice he shall Transgress in any part of the premises and In Respect he hes found Caution allowes the Bond formerly granted by the Earle The Lord Duffus and Boine and Sir William Scott younger of Harden Cautioners therein dated the seventein of February Last to be given up and destroyed.
1. NRS, PC1/51, 389-91.
1. NRS, PC1/51, 389-91.
A1698/3/2
A1698/3/21
Commission by the Council
The Lords of his majesties privy Councill Being Informed That Elspeth McCourn and Mary Millar Both within the Stewartrie of Kirkcudbright presently prisoners within the Tolbooth of Kirkcud-Bright are alledged Guilty of the Horrid cryme of witchcraft and hes committed severall malifices And Considering it will be a great deal of charges and Expenses to Bring the saids Elspeth McCourn and Mary Millar to this place in order to a Tryall Before The Lords Commissioners of Justiciarie besides that severall Inconveniencties may arrise by ther Transportation And the saids Lords Likeways Considering That this horrid cryme cannot be tryed and Judged by any persons in the Countrey without a warrant and Commission from their Lordships for that Effect and the saids Lords Being Desyreous to have the said matter Brought to a Tryall That the persons Guilty may receave Condign punishment and others may be deterred from committing so horrid a Crime in tyme coming They Doe heirby Give full power warrand and Commission To Sir John Maxwell of Pollock […] Maxwell of Dalswintoune Hugh Mcgussock of Rusco Adam Newall of Barskeroch […] Dumbar of Macbrymore Thomas Alexander Stewart Deput of Kirkcudbright Robert McCleland of Barmagahane and Mr Alexander Ferguson of Isle Advocate and Declares any Three of the forsaids persones to be a sufficient quorum The said stewart Deput of Kirkcudbright being one of the Three To tak tryall of and to Judge and doe Justice upon the saids Elspeth McCourn and Mary Millar for the said Crime of witchcraft And In order thereto to meet and Conveen att Kirkcud-bright the second Friday of Aprile next to Come And ther To accept of this present Commission And upon there acceptance to administrate the oath of fidelity To the person who in The Lord Justice-Clerk or James Montgomrie of Langshaw Clerk to the Justice Court shall depute and substitute to be Clerk to this present Commission with power To the saids Commissioners or their said quorum to choice ther own Clerk for whom they shall be answerable in caice that the saids Lords Justice-Clerk and James Montgomery shall refuse To nominate a Clerk in this matter, They being first Required so to doe with power Likeways to the saids persons hereby Commissionat or their said quorum To Creat make and Constitute Serjants, Dempsters and other members of the said Court And to Issue out and raise precepts or Lybles of Indictments att the Instance of Samuell Caremont writer at Kirkcudbright procurator fiscall for his majesties Interest in the said matter against the saids Elspeth McCourn and Mary Millar accused of witchcraft for summonding and Citeing of them upon Fifteen days by delivering to them a full Coppie of the Lyble of the Indytement with the names and designations of the Assissers and witnesses Subjoned and for citeing the assissers and witnesses in the ordinary manner and under the paines and Certifications To Compear Before The saids Commissioners heirby Commissionat or ther said quorum att […] with power also to them to amerciat and fine the absent assiszes and witnesses and the amerciaments and fines To uplift for ther own use and Behoove And to Adjourn them selves from tyme to tyme till the Relevancy be discust To the Effect that the pannells being fully heard, The saids Commissioners or their said quorum may Judge and determine the said Relevancie of the Lyble And to call ane Inquiest of fourty five persons who are to be cited on the assisse of the saids pannells and a List of ther names and designationes given in to the saids persons accused with their Lybles as said is and after the Discussing the relevancy of the said lyble in presence of the saids persones of Inquiest By pronunceing ane Interloquitor thereon, out of that number to choice ane assize of fifteen and To Administrat to them the ordinary oath in the usual terms And with power also to the saids Commissioners or ther said quorum To Examine the Witnesses to be cited in presence of the saids Pannells and Sworn Inquest upon the points That shall be admitted to probatione and immediatly therafter without any adjournment To Remitt the said Lyble and Interloquitor to be given be them anent the Relevancy thereof and the Depositions of the Witnesses To be taken in manner forsaid To the Knowledge of the said Inquiest and assize who without delay or going out of the Court are to be inclosed by themselves and are heirby appointed to remain so inclosed and none suffered to be with them or to have access to them or any of themselves suffered to goe out untill they be agreed and conclude their answer And to Elect a Chancelor or president with a Clerk of the own number and after reading and perusing of the said Indytement Interloquitor be pronunced thereon and depositions of the witnesses To be taken in presence of the saids pannells and assise They are To find the Lyble proven against the said pannells or not according to Law as they will be answerable to God and a good Conscience and That they draw up Ther verdict accordingly Bearing what Way Every assiser doth vote And Deliver the samen being first subscrived by the Chancellor and Clerk and sealed by the Hand of their Chancelor or president to the saids Commissioners or their said quorum whom they heirby authorize and Comissionat To advise the hail process and verdict of the Inquiest And to Give and pronunce Sentence Condemnator or absolvitor in the said matter according to Justice And in caice the saids persones shall find the saids pannells guilty of the crymes layed to their charge with power to the saids Commissioners or their said quorum To Decerne and Adjudge Them to be Burned or otherwise To be Execute to the Death within such space and after such a manner as they shall think fitt, And Appoints The saids Commissioners their said quorum or Clerk To Transmitt the hail process which shall be Led before them against the saids Elspeth McCourn or Mary Millar, and severall steps thereof and verdict of the Inqueist to be given thereupon to the saids Lords of his Majesties privy Councill Betwixt and the fifteenth Day of June next to come to be Considered be them, And discharges the saids Commissioners or their said quorum To suffer the sentence which shall be pronunced be them against the said pannells to be putt To Execution or to appoint or affix a day for executing thereof without special order and warrant hade and obtained from the saids Lords of privy Councill for that Effect and generally with power to the saids Comissioners or their said quorum to act doe and perform all and sundry things whatsomever competent and Incumbent to be acted done and performed and appointed by the saids Lords of privy Councill And The saids Lords appoints the saids Commissioners or there said quorum within the space of ane moneth after pronuncing and Executing their sentence in this matter To Report to the Lords Commissioners of Justiciary or to the Clerk of the Criminall Court ane authentick Extract under ther hands of the said process sentence and the manner of Executing thereof To the Effect the same may be recorded in the books of Justiciary which the Clerk to the Criminall Court is heirby required to Record therein, as he will be answerable Givin att Edinburgh the First Day of March Jaj vic nyntie Eight years sic subscribitur Marchmont Cancellar Southerland Buchan Carmichael James Stewart John Lauder A: Hope Archibald Murray Archibald Mure.
1. NRS, PC1/51, 386-9.
1. NRS, PC1/51, 386-9.
A1698/3/1
A1698/3/12
Sederunt
Lord Chancelor; Marquis of Tweddale; Earl of Southerland; Earl of Buchan; Earl of Lauderdale; Earl of Leven; Earl of Annandale; Earl of Ruglen; Viscount Tarbat; Lord Montgomry; Lord Forbes; Lord Carmichaell; Lord Ruthven; Lord Advocate; Lord Justice-Clerk; Lord Fountainhall; Lord Enstruther; Lord Rankillor; Laird of Grant; Laird of Pollock; Laird of Blackbarrony; Lord Provost of Edinburgh; Laird of Kelburne
1. NRS, PC1/51, 386.
2. NRS, PC1/51, 386.
1. NRS, PC1/51, 386.
2. NRS, PC1/51, 386.