Edinburgh the fiftein day of November Jaj vjc nyntie two years
D1692/11/7
D1692/11/7
Judicial Proceeding
Hamilton Against Foster and others
Anent the lybell raised before the Lords of ther majesties privy Councill be Margrat Hamiltone relict of the deceast John Hamilton of Bangour present naturall possessor of the lands of Arthurhead which is a part of the barronie of Bangour, James Moubray tennent and possessor of the wester maynes of Bangour and Sir William Lockhart their Majesties Sollicitor for their intrest in the matter underwritten mentioning That quher by the Lawes and acts of Parliament of this kingdome, The masterfull and violent away takeing and dryveing goods and Catle of Subjects who are nowayes debitor to the away takers and are not possessors of the lands to quhich the away takers pretend right by infeftment Is ane manifast Ryot and oppression Especially when acted by members of the Collodge of Justice who ought to understand the Lawes and others who ware informed and suficiently knew the bounding and Designatione of the lands contained in their infeftments yet true It is and of veritie that the deceast Mr James Hamiltone of Westport being infeft for his Lyfrent and Kathrine Hamiltone his daughter spouse to John Hamiltone of Gilcherscleugh in fie in ane annualrent of ane Hundreth and twentie punds effeir and to thrie Thousand merks of principall to be uplifted out of the Easter Maynes of Bangour then possess be John Nimmo, And haveing obtained a Decreet of poynding of the ground of the saids sands Which annualrent being disponed be the said Katharin and her husband to William Forrester writter to the Signet He the said William Forrester therupon raised letters of poynding the ground and give them to the said John Hamiltone of Gilkerscleugh as his factor to execute who upon the thrid instant came with Robert Allan messenger to the ground of the said Wester Maynes of Bangour possesst be the said James Mowbray, And to the ground of the saids lands of Arthurhead possest be the said Margrat Hamiltone without goeing to the Easter Maynes of Bangour which was the only land contained in the infeftment out of quhich the forsaid annualrent was granted ad the Decreet of Poynding the ground, wherupon the same proceided And ther the said John as pretended factor for the said William Forrester and Robert Allan messenger Did violently take away twentie five nolt and kyne of the said Wester Maynes of Wester Bangour and Arthurhead, notwithstanding that the saids James Mubray told the said John Hamilton and Robert Allan messenger that these lands were not the Lands in their infeftment and that the goods they ware dryveing belonging to himself and the pursuars and ware feeding partly in the West Maynes wherin the said Margrat Hamiltone stood infeft in Lyfrent be a preferrable Right and wherof the said John Hamiltone who is brother in law to the said Margrat And the said William Forrester was Conscious And hade frequently acknowledged the same in their Comuneing betwixt her and them for acquyreing in of the said Right of annualrent upon which the forsaid Ryot was Comitted and wer partly feeding on the saids Lands of Arthurhead, Which lands the said John Hamiltone and the said William Forrester knew were not only not contained within their infeftment Bot Lykewayes that the saids Lands of Arthurhead and even the saids lands of Easter Maynes possest be John Nimmo out of which the annualrent was payable was possest be a preferrable right viz ane Declarator of non-entrie, Wherof the said John Hamilton and William Forrester were Conscious the samen being acknowledged frequently be them in their Communeings for selling the said right of annualrent Notwithstanding wherof the said John Hamilton and Robert Allan messenger Drove the said twentie five head of Catle to the Cross of Linlithgow wher the made a Shamen appretiation of them at twelve punds Scots the peice tho they were worth threttie pund overhead Whilk they still unjustly detained from the pursuars as if they hade been poyndable of the ground mentioned in their infeftment of annualrent and Decreet of poynding albeit ther was not twentie punds Sterling of annualrents due, yet they would not restore any part therof nor give back the same to the ouners who ware nowayes Lyable to the debt and who offered to depone that the goods were theirs, And Therfore the saids defenders are guilty of ane manifest Ryot and oppression and ought to be decerned not only to restore the saids goods to the pursuars who are nowayes Lyable to their pretended poynding in alse good condition as they were the tyme of the forsaid unwarrantable poynding or threttie punds scots per peice overhead, as the true price and worth of the saids goods as also to make payment to the pursuars the soume of […] as damnadge sustained by them Bot also they ought to be punished in their persones and goods to the teror of others to Comitt the like in tyme comeing And Anent the charge given to the saids defenders To have Compeired personally before the saids Lords, this day 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 and executiones therof at more leanth is contained Which Lybell being this day called in presence of the said Lords of privy Councill And the pursuars Compeiring Personally with Sir James Ogilvy and Mr John Meinzies their advocats And the defenders Compeiring also personally with Mr Heugh Dalrymple and Mr Forrester their advocats The Lords of their majesties privy Councill haveing Considered the forsaid Lybell and answers made therto by the defenders and both parties being fully heard, And the writtes produced be aither partie Considered they Find It Relevant to inferr a Ryot that the defenders poynded goods, which did not belong to the tennant of the Lands contained in their infeftment, And that the ouners of these goods appeared the tyme of the poynding and offered to give their oathes that the goods were theirs and not the tennents who possessed the grounds Contained in the defenders infeftments of annualrent, And the haill witnesses cited for the pursuar Compeiring personally and having made faith at the barr the saids Lords Recomends to Mr Franzis Montgomrie of Giffen and Sir Patrick Murray of Saltcoats to examine the witnesses upon the point forsaid admitted to the pursuars probatione, And Reserves all Objectiones which may be made against the witnesses to be proponed and Discussed before the Committie.
Edinburgh the fiftein day of November Jaj vjc nyntie two years
D1692/11/7
Judicial Proceeding
Hamilton Against Foster and others
Anent the lybell raised before the Lords of ther majesties privy Councill be Margrat Hamiltone relict of the deceast John Hamilton of Bangour present naturall possessor of the lands of Arthurhead which is a part of the barronie of Bangour, James Moubray tennent and possessor of the wester maynes of Bangour and Sir William Lockhart their Majesties Sollicitor for their intrest in the matter underwritten mentioning That quher by the Lawes and acts of Parliament of this kingdome, The masterfull and violent away takeing and dryveing goods and Catle of Subjects who are nowayes debitor to the away takers and are not possessors of the lands to quhich the away takers pretend right by infeftment Is ane manifast Ryot and oppression Especially when acted by members of the Collodge of Justice who ought to understand the Lawes and others who ware informed and suficiently knew the bounding and Designatione of the lands contained in their infeftments yet true It is and of veritie that the deceast Mr James Hamiltone of Westport being infeft for his Lyfrent and Kathrine Hamiltone his daughter spouse to John Hamiltone of Gilcherscleugh in fie in ane annualrent of ane Hundreth and twentie punds effeir and to thrie Thousand merks of principall to be uplifted out of the Easter Maynes of Bangour then possess be John Nimmo, And haveing obtained a Decreet of poynding of the ground of the saids sands Which annualrent being disponed be the said Katharin and her husband to William Forrester writter to the Signet He the said William Forrester therupon raised letters of poynding the ground and give them to the said John Hamiltone of Gilkerscleugh as his factor to execute who upon the thrid instant came with Robert Allan messenger to the ground of the said Wester Maynes of Bangour possesst be the said James Mowbray, And to the ground of the saids lands of Arthurhead possest be the said Margrat Hamiltone without goeing to the Easter Maynes of Bangour which was the only land contained in the infeftment out of quhich the forsaid annualrent was granted ad the Decreet of Poynding the ground, wherupon the same proceided And ther the said John as pretended factor for the said William Forrester and Robert Allan messenger Did violently take away twentie five nolt and kyne of the said Wester Maynes of Wester Bangour and Arthurhead, notwithstanding that the saids James Mubray told the said John Hamilton and Robert Allan messenger that these lands were not the Lands in their infeftment and that the goods they ware dryveing belonging to himself and the pursuars and ware feeding partly in the West Maynes wherin the said Margrat Hamiltone stood infeft in Lyfrent be a preferrable Right and wherof the said John Hamiltone who is brother in law to the said Margrat And the said William Forrester was Conscious And hade frequently acknowledged the same in their Comuneing betwixt her and them for acquyreing in of the said Right of annualrent upon which the forsaid Ryot was Comitted and wer partly feeding on the saids Lands of Arthurhead, Which lands the said John Hamiltone and the said William Forrester knew were not only not contained within their infeftment Bot Lykewayes that the saids Lands of Arthurhead and even the saids lands of Easter Maynes possest be John Nimmo out of which the annualrent was payable was possest be a preferrable right viz ane Declarator of non-entrie, Wherof the said John Hamilton and William Forrester were Conscious the samen being acknowledged frequently be them in their Communeings for selling the said right of annualrent Notwithstanding wherof the said John Hamilton and Robert Allan messenger Drove the said twentie five head of Catle to the Cross of Linlithgow wher the made a Shamen appretiation of them at twelve punds Scots the peice tho they were worth threttie pund overhead Whilk they still unjustly detained from the pursuars as if they hade been poyndable of the ground mentioned in their infeftment of annualrent and Decreet of poynding albeit ther was not twentie punds Sterling of annualrents due, yet they would not restore any part therof nor give back the same to the ouners who ware nowayes Lyable to the debt and who offered to depone that the goods were theirs, And Therfore the saids defenders are guilty of ane manifest Ryot and oppression and ought to be decerned not only to restore the saids goods to the pursuars who are nowayes Lyable to their pretended poynding in alse good condition as they were the tyme of the forsaid unwarrantable poynding or threttie punds scots per peice overhead, as the true price and worth of the saids goods as also to make payment to the pursuars the soume of […] as damnadge sustained by them Bot also they ought to be punished in their persones and goods to the teror of others to Comitt the like in tyme comeing And Anent the charge given to the saids defenders To have Compeired personally before the saids Lords, this day 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 and executiones therof at more leanth is contained Which Lybell being this day called in presence of the said Lords of privy Councill And the pursuars Compeiring Personally with Sir James Ogilvy and Mr John Meinzies their advocats And the defenders Compeiring also personally with Mr Heugh Dalrymple and Mr Forrester their advocats The Lords of their majesties privy Councill haveing Considered the forsaid Lybell and answers made therto by the defenders and both parties being fully heard, And the writtes produced be aither partie Considered they Find It Relevant to inferr a Ryot that the defenders poynded goods, which did not belong to the tennant of the Lands contained in their infeftment, And that the ouners of these goods appeared the tyme of the poynding and offered to give their oathes that the goods were theirs and not the tennents who possessed the grounds Contained in the defenders infeftments of annualrent, And the haill witnesses cited for the pursuar Compeiring personally and having made faith at the barr the saids Lords Recomends to Mr Franzis Montgomrie of Giffen and Sir Patrick Murray of Saltcoats to examine the witnesses upon the point forsaid admitted to the pursuars probatione, And Reserves all Objectiones which may be made against the witnesses to be proponed and Discussed before the Committie.
