Edinburgh the second day of August J^aj vj^c nyntie four years

D1694/8/5

D1694/8/5¹

Decreet

Decreet Dunbarr Against Mcdonald of Castltoune.

Anent the lybell or letters raised and pursued before the Lords of their Majesties privy Councill at the instance of Donald Mcdonald of Castltoune and Sir James Stewart their Majesties advocat for their highnes intrest in the matter underwritten Making Mention That wher albeit by the Lawes of this and all other weell governed realmes all violent and Illegall exactiones and oppressiones be forbiden and Discharged and that the forsaids exactiones and oppressiones Especially when Comitted by persones in publict trust abuseing their trust and under pretext and Collour therof and by the power therby allowed them for the service of their majesties government exacting upon and oppressing their majesties good subjects and that by quartering poynding or otherwayes are Crymes of a high nature and ought to be severly punished, yet nevertheless It is of verity That James Dunbar elder present baillie of the burgh of Inverness and some time Collector of the Cess of the shyre² therof and James Dunbar younger his nephew now present Collector of the Supply within the said shire, shakeing off all regaird to their majesties Lawes and government have now by the space of severall years and Continually since the year J^aj vj^c Eightie Eight inclusive oppressed and vexed the said Donald Mcdonald pursuer and his lands and tennants by keeping up a most unjust clame of deficiencie against them ever since the year J^aj vj^c Eightie six and refuseing to give Discharge of the subsequent Cesses and supplies albeit severall times offered by way of instrument unles the forsaid pretended deficiencie were payed albeit the same be nowayes due In so farr as the last discharge granted be the said James Dunbar elder was granted be him the fifth day of January J^aj vj^c Eightie six for the Whitsunday preceiding Wherby it is evident that after the granting therof quartering Could no Longer be Continued Lykeas the said pursuer does alsoe produce ane Discharge of quartering from on Grehme who Commanded the partie which discharge is be way of a misive directed by the said Greme to the said James Dunbar then Collector Wherby he desyres him to Grant a discharge to the said Casteltoune declairing himself satisfied for his quarters which no doubt was previous and was the motive of the said discharge granted by Dunbar the Collector as said is, and yet the said James Dunbar Charges quartering for the said termes Cess as deficiencie in a most Illegall and unwarantable maner for wheras by the act of parliament only four horsemen are allowed to quarter for ane Thousand punds deficiencie and so furth proportionally The said Collector charges quartering for the said termes Cess as deficiencie being but seventeen punds twelwe shilling ten pennies at half a Crown per diem or two horss men And that from the Eight of december J^aj vj^c Eightie five to the sixth of February J^aj vj^c Eightie six amounting to Eightie Eight punds ten shilling as the accompt under the said Collectors hand therwith produced would testifie Which is for a moneth after the forsaid Discharge granted for the Cess pretended to be quartered four And albeit by act of parliament quartering money cannot to exacted after twentie dayes from the time it falls due yet the said Collector Dunbar Did keep up the said Unjust clame of deficiencie against the said pursuer all this time and refuseing to give him neatt discharges of his Cess keept ³ him sometimes under quartering but allwayes under the ame of quartering all this time notwithstanding of the offer of reall payment to him as ane instrument taken in the year J^aj vj^c Eightie Eight therwith produced bears, and when the said Dunbar ceased to be Collector And that his nephew James Dunbar younger came in his place he transmitted the said vexatious clame of deficiencie to his nephew who hath ever since treated the said pursuer in the same oppressive maner as his uncle did not only continueing the said unjust clame of pretended deficiencie and refuseing to give ane distinct accompt and Discharge though payment of what was truely resting without these pretended deficiencies was really offered as another instrument and taken against the said present Collector upon the thrid day of november J^aj vj^c nyntie thrie therwith produced would testifie But alsoe quartering on him a farr greater number of men then is allowed by law In so farr as all the Cess that can be Craved of him ⁴does not exceed four hundred merks or therby wherof the not payment is meerly to be Imported to the Collectors fault, yet the Collectors orders quartering upon the said pursuer allwayes for Eight and of late for ten foot men continually since the twentie second day of August last which is more then double the number that by law should quarter for that soume By all which it is evident that the saids James Dunbars elder and younger are the saids pursuers successive oppressors and that under the pretext of their trust as Collectors and for ane old pretended deficiencie they have for severall years oppressed and vexed the said pursuers by quartering and the threatnings therof as said is, for which oppressione and molestatione they being guilty, or airt and pairt as said is ought not only to be Condemned in the soume of Two Thousand merks scots money for the said pursuers damnages But alsoe examplarly punished in their persones and goods to the tenor of others to doe the like in time comeing And Anent the charge given to to⁵ the saids defenders To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the points of the above Complaint And to have heard and seen such order and Course taken theranent as the saids Lords should find Just as the principall letters or lybell raised in the said matter with the executiones therof at more length bears Which lybell or letters being upon the tenth day of Jully instant Called in presence of the saids Lords of their Majesties privy Councill and Sir James Ogilvie and Mr David Dalrymple advocats Compeiring as procurators for the pursuer and the pursuer being absent himself and the said James Dunbars elder and younger Compeiring personally and Mr David Forbes and Mr Robert Stewart Advocats Compeiring as procurators for the defenders The lybell and answers therto and a testificat of the pursuers age weaknes and indispositione being Read The said Mr David Dalrymple produced a factorie granted be Casteltoune to Charles Mitchell sone to John Mitchell of Westshort to pursue the forsaid actione before the privy Councill And the lybell of reconventione the defenders against the pursuer being also Called and both parties Compeiring or being absent as above and a petitione be the Commissioners of supply of Innerness shire Complaineing the numbers of men allowed by Law for quartering for the kings dues in that shire (which they will not exceed proves unsuccessfull for inbringing the publict money being also read The saids Lords of privy Councill having Considered both lybells with the wrytes produced for either partie, And haveing heard the advocats for both parties They heirby Recommend to the Lord Viscount of Tarbat Lord Polwarth and Sir Robert Sinclar of Stivensone to Consider the act of parliament made anent quartering for the Cess and what number of souldiers are to be quartered and in what maner upon parties for small soumes And likewayes to Consider both lybells anent rydeing money and alsoe the wrytes produced for either partie and to examine the witnesses or such of them as they shall thin fitt for the Councills informatione And Recomended to the Comittie for to meet the morrow at ten in the forenoon and declaired any two of them to be a suficient quorum, Which Committie haveing accordingly mett and Considered the act of parliament anent quartering for Cess with both the lybells and wrytes produced for aither partie They made their report to the Lords of privy Councill by way of Queirie, And the saids Lords haveing this day Considered the said report of the Comittie made to them be way of Queirie with the petitione given in be the said James Dunbars elder and younger shewing That Donald Mcdonald of Castltune or some malicious persone in his name has near four moneths time keept the petitioners in attendance before the saids Lords on a Complaint The most groundless and Idly founded that ever was heard of, now that the petitioners have hade oppertunity in presence of the Lords of the Comittie appointed for examineing the matter to see the Documents wheron wheron⁶ the Complaint is grounded for wheras it is alledged that James Dunbar elder notwithstanding of his Discharge to the pursuer for the Whitsunday cess J^aj vj^c Eightie five refused to accept of subsequent termes unles he gott the deficencie alledged due for the forsaid terme of Whitsunday and haveing quartered on the said Donald Mcdonald with a greater proportion of men then the act of parliament allowes and for verifieing of which ther is produced a billet from the Commander of the partie to the said James Dunbar Importing the pursuers payment of ryding money And Therfore Desyreing him to be Discharged Togither with the Discharge therupon granted of the termes Cess of Whitsunday J^aj vj^c Eightie five dated the fifth of January J^aj vj^c Eightie six with another subscryved billet be way of accompt Stateing the pursuer debitor in Eightie pund as the deficiencie of his Whitsundayes Cess J^aj vj^c Eightie five from the Eight of December J^aj vj^c Eightie five till the sixth of February J^aj vj^c Eightie six and this accompt is dated in January J^aj vj^c Eightie seven as to all which its answers That it is asbolutly Denyed that the reasone why the Collector refused the subsequent termes Cess wes because the pursuer would not pay the deficiencie of Whitsunday J^aj vj^c Eightie five which he never Craved of him but because he would not pay the deficiencie of the mertimiss therafter as the note produced be the pursuers may clearly show which particularizes the deficiencie to be from the Eight of December J^aj vj^c Eightie five to the sixth of February J^aj vj^c Eightie six, Which Clearly Imports that the deficiencie sought was for the mertimes and not for the Whitsunday through the note for throw mistake of the Collectors servant bears Whitsunday and quhich mistake is very evident from this /1o/ The deficincie is not carried by the very note it self from the Whitsundayes terme But from the Eight of December J^aj vj^c Eightie five which is the Commencment of the deficiencie for the mertimes /2o/ That the note relates to the Comanders haveing assigned the Collector to the deficiencie therin related to and it is evident that the Comander was payed by the pursuer himself for the deficiancie for Whitsunday J^aj vj^c Eightie five And that he would not have assigned the Collector to any such And Tertio if the meaning of the Collectors note hade been to reckone deficiencie from Whitsunday he would not have neglected the wholl time from Whitsunday till December therafter and the wholl terme of Martimiss alsoe interveening Quarto that the pursuer who at that time hade the Collectors Discharge for Whitsunday J^aj vj^c Eightie five might by it and grounds Immediatly above urged distinctly perceived the mistake and Certiorat the Collector therof and gotten all certified upon Sight, But instead of this the pursuer does most disingeniously keep up the mistake and ⁷ upon the pretext of it, has adventured not only keep ther Majesties supply now these twentie two termes, But likewayes to Creat the Collectors this vaxatious and expensive work now for severall moneths and in the mean time the pursuer nor any man in the world cannot make appear that the Collector Issued out quartering in the termes of the said note or Compt, His orders for quartering haveing been allwayes for the deficiencie from mertimes J^aj vj^c Eightie five and so forward till now, That throw the wilfull remissnes of the pursuer on such groundless pretext the Collector has out of his oun pocket payed all his Cess and deficiencie sincesyne and particularly the cess and deficiencie of the mertimes J^aj vj^c Eightie five as appears by the Commander of the parties discharge and the generall receivers recepts and Discharges for the said twentie two termes all exhibited before the Comittie Nor Quinto aught respect to be hade to any pretended naratives that Castltounes nottars may make in their instruments alledging that the Collectors refused to accept of the payment of this Current Cess unless the deficiencie for Whitsunday J^aj vj^c Eightie five were payed Because the deficiencie truely Contraverted was for the mertimes J^aj vj^c Eightie five as may appear by the Collectors answers in the very bosome of the instruments, Which likewayes bear that the Collector was content to accept of the Current termes cess resrving the Controverted point allwayes to be Cleared, But that Castltoune still refused all maner of payment And Wheras it is farder insinuat in the lybell that James Dunbar younger Continued the same method of quartering by a disproportionable number of men It was answered primo That the Collectors method of quartering was uniformly the same that ever any Collector formerly used and that by authoritie of the Commissioners, nor was ever the pursuer quartered upon but by one single souldier for a termes cess at once Because a les proportione could not be sent upon him And secundo the Lords of the Comittie have found so much deficulty as to the proportione of men to be subdivyded upon the particular dificiants, That they have thought it worth their whill to advice with their Lordships by a querie theranent, as to which the petitioner humbly Craves leave to offer this point to the saids Lords Consideratione Likewayes in behalf of the Collector quartering more men upon particular deficients viz that till the outmost six pence due by the wholl shire by payed, The wholl partie at first sent by the generall receivers Continue their quartering on the shire nor will the receivers give Discharge till all be payed, so that these particular deficients Ought in reasone to bear the shires whole quartering, So farr as it is occasioned throw their fault especially when ther cess cannot be recovered by poynding, or incarcerating their persones by reasone of the unaccessiblnes of their dwalling as particularly this Castltoune who lives Fiftie myles ⁸ distant by attour twentie myles of sea, Therfore and seing by what is above represented the Complant is most groundles and malicious And that besides the wholl cess of the twentie two bygone last termes which is payed out by the saids Collectors for the said Castletoune being necessitate therto They have been also forced to pay for him the deficiencie to the severall parties that have quartered from time to time for the said twentie two termes Cess the soume of ane Thousand and thrie hundreid twentie four punds scots betwixt him and his nighbours wher of his share amounts to thrie hundred nyntie one punds scots money as instructiones presented to the Committie has testified and the expences of this Complaint has stood them upwards of fiftie peices besides the loss of their time and affairs at home being both in publict Service and this wrongeously Called from their bussines and that no Compulsitors against the said Castletoune will be able to refound them without force be joyned with authority He haveing severall times allready deforced⁹ and disapointed all the ordinary parties now these nyne years by past And it being hard that the Collectors should lye under Such a loss, And Therfore humbly Craveing the saids Lords would take the premises to their Consideratione and modifie Liberall expences to the Collectors for such a malicious vacatione as the pursuer has Created them whill himself Stayes at home in ease and give orders to Coll Hill or the nixt adjacent Garisone to Issue out such parties as they shall Judge necessary for makeing the same and the accompt of Deficiencie now these twentie two termes due be the said Castletoune effectuall, Togither with the answers made be the said Donald Mcdonald to the said petition Representing That the said Donald Mcdonald haveing fallen deficient in ane termes Cess at Whitsunday J^aj vj^c Eightie five was quartered upon by Thomas Grame Comander of ane partie of the guards whom he satisfied for all they quartering money he Could Crave And obtained his Discharge therupon directed be way of missive to the Collector Likewayes Likwayes upon payment of the said termes Cess to the Collector he received his Discharge the fifth of January J^aj vj^c Eightie six, notwithstanding wherof in anno J^aj vj^c Eightie seven The said James Dunbar charges Castletoune with deficiencie for the said termes Cess Being but seventein pund ten shilling scots at half a Croun or two horss men per diem from the Eight of December J^aj vj^c Eightie five to the sixth of February J^aj vj^c Eightie six pretending to have assignatione therto from the said Thomas Grame as the accompt therof subscryved by the Collector Lying in process bears Which Charge of Deficiencie being so groundless and unwarantable Castletoune would nowayes Condescend to pay and tho from time to time he offered payment of the Cess truely resting and at length in anno J^aj vj^c Eightie Eight made offer therof under forme of instrument yet the same would never be accepted be the Collector Unless his pretended claime of Deficiencie were satisfied therwith as is at leanth contained in the instrument taken therupon. After the revolutione the said James Dunbar haveing substitute his nephew in his place Transmitted the said vaxatious clame to him who not only continues to Charge therfore But likewayes to force him to make payment therof and orders quartering upon the said Donald McDonald in ane unlegall and unwarrantable maner without regaird to the proportione therof appointed by Law and being oblidged by his uncle to Continue his claime of deficiencies shifted from time to time to receive the cess due by the said Donald Mcdonald untill offer therof was made under forme of instrument to them both in november last at length the said Donald Mcdonald seing no end of the Collectors oppressione and his oun suferings therby Haveing meaned himself to the saids Lords for redress and the Collector being cited to the […] day of […] Last upon his applicatione to the saids Lords The Cause was delayed till June And yet in a printed petitione he has the Impudence to Insinuat a Complaint of the saids Lords delay and his attendance four moneths though the most part of that delay was a favor indulged by the saids Lords upon his applicaitone and to paliat his unwarrantable exactiones above represented, Pretends first a mistake in the writes subscryved by him And that the same ought to be the deficiencie of mertimes J^aj vj^c Eightie five instead of Whitsunday and that the Collector did pay the deficiencie of the said terme To the said Thomas Grame who hade quartered upon him therfore with Eight horssmen for four dayes time Secundo that the Last deficiencie in a shire must allwayes bear the burdein of the whole partie that is ordered by the generall receivers to quarter upon the shire since they will not remove till all be payed And that the Lords of the Committie have found so much deficultie in that point That they have thought fit to advise the same with their Lordships by a queirie, and the Collectors methode of quartering was uniformly by one single souldier for ilk termes Cess It is answered for Donald Mcdonald to the first of these that it is a¹⁰ most groundless and pitifull shift to pretend now to a¹¹ mistake in his wryt when therupon he has for seven or eight years Continued to oppress the pursuer without ever shewing the least inclynatione to rectifie the same when produced to him But albeit It were granted that it was the deficiencie of mertimes terme he Craved it would be ¹² altogither as groundless and unwarrantable as the other for Thomas Grames Discharge to Donald Mcdonald does indefinitly acknowledge payment and satisfactione of all that he Could Crave of him for the partie which may Comprehend mertimes alse weell as Whitsunday and the pretence wherupon he founds his haveing been forced to pay the same Viz his being quartered on by Grame for four dayes, with Eight Horss and Eight men does most clearly evidence and expose his arbitar exactiones for the quartering upon the Collector being ¹³ acknowledged by himself to be but of Eight horss and Eight men for four dayes time extends only to twentie four punds scots wheras the quartering Charged by him ¹⁴ on Castltoune on that account Continues for about two moneths and extends to Eightie Eight punds and though this appears most extravagant yet it is but suitable to the Collectors ordinary methode of Charging quartering money upon many deficients at once from the time that a partie comes to the shire who most allwayes rest satisfied with their single quartering Conforme to Law though the Collector faills not to multiply the same upon severall deficients at once tho at great distance from the partie upon a pretence of right from them; So that it is evident that the Collector is guilty of manifast oppressione in Charging for that quartering money after the partie was satisfied and notwithstanding that by the 2d act of parliament J^aj vj^c Eightie six quartering money cannot all be executed after twentie dayes from the time it falls due Which would be a suficient exoneratione to Castletoune tho the forsaid quartering money hade never been payed and this was Justly statute for removeing that inconveniencie of sufering quartering money to run on¹⁵ to a great hight therby incapacitating the deficients to make payment of his majesties rents To The second Its answers That the acts of parliament haveing Justly proportioned the quartering of Souldiers to the soumes resting by the deficients so as to be a suitable penalty for their negligence and to prevent the exhausting of their wholl substance by arbitrary and Illimited quarterings and for Commissioners or Collectors to pretend a power of ordering Such arbitrary quarterings were to Overturne the haill Lawes and acts of parliament made theranent, nor can the pretence of the present Collectors quartering on the pursuer bot one Single man for each terme Justifie this Illegall quartering of Eleven men upon him at once whilst all the Cess resting by him did not exceed four hundred merks for which soume Law has proportioned only four foot men to quarter and even that soume resting meerly throw the Collectors fault the pursuer being allwayes ready to pay all the Cess truely resting by him without these pretended quarterings Craved by the Collector neither can any reasone to be Imagined for the present Collector his ordering of Eleven men to quarter upon Castletoune, But by includeing his uncles claime of quartering money with the Cess to force the payment therof against all Law and reasone and to Cover the gross Illegallity therof, The pretence of quartering one Single man for each termes cess was intented The soume due at each terme being only about seventin punds scots Wherby the Collectors might pretend that no quartering was used or their said claime of quartering money and since the Contrary would easily be made appear by the officers and souldiers sent to quarter who hade the Collectors accompt of the soumes to be Craved The Collectors shifted the hearing of this cause in maner forsaid untill these gentlemen were all gone out of the Countrey upon Majesties Service; In this petition James Dunbar frequently Loads Castletoune with disloyalty for no other reasone then his refuseing to satisfie all these groundless deficiencies his avarice prompted him to Charge upon him against Law, Tho in the long tract of the Collectors oppression he can never Condescend upon the Least oppositione offered by Castletoune to any party that was sent to quarter upon him The same Imputatione he used with Castltoune in the late rigne as appears by the forsaid instrument taken in the year J^aj vj^c Eightie Eight Imagining therby to add the greater weight to his unjust demands, And it must be acknowledged that if oppressive actions under Collour of any Commissione he is intrusted with were accounted Loyaltie James Dunbar might give evidence of his Zeallous Loyaltie upon all turns But its hoped their Lordships would be so far ¹⁶ take¹⁷ notice of the indignity done to the government by his abuseing the name of authoritie to these his oppen and manifast oppresiones Tending (so far as in him Lyes) to Creat in the minds of the people in these remote places ane dislike to the government as by ther Lordships Just sentance to deterr him and all others from the like for the future, And Decerne ane Considerable soume To be payed to Castltoune By the Collectors for the damnadges sustained by him throw their Illegall quarterings above represented and to Grant warrand to Castletoune to pay the Cess resting by him to their Majesties receivers within such Competent time as ther Lordships should appoint as the answers bears They The saids Lords of their Majesties privy Councill Decerne and Ordaine the said Donald Mcdonald of Castletoune to make payment to the said James Dunbar of the soume of seventein pund twelue shilling ten penies scots money of the termes cess payable at mertimes J^aj vj^c Eightie five And of the said Donald his proportione of the Cess for all years and termes sincsyne And of the deficient money ryding money and expenses effeiring to the said Donald his proportione of the said Cess for the said terme of Mertimiss J^aj vj^c Eightie five and termly for each termes Cess quherin he is deficient since syne, And appoints Coll Hill or any other Commanding officer of their Majesties forces nixt adjacent to give assistance to the said James Dunbar by furnishing him with parties to quarter for the said deficient cess and ryding money and expenses.