Att Edinburgh the Twenty Fyfth day of July J^aj vi^c Nyntie Nyne

D1699/7/9

D1699/7/9¹

Decreet

Decreit Muray of Abercarny and others Against Gilbert McEwen The Laird of Leny and others

Anent the bill of Suspension given in and presented to the Lords of his Majesties privy Councill be Gilbert Mceven in Lurgabuy in Braeleny Duncan Mcanorser sometime in Orb, Donald Manorser in Dounardoch, Donald Buchanan Sometime of Burn of Cambus and John and Henry Buchanans elder and younger of Leny their master and Land Lord for their intrest Shewing That wher the petitioners are lately charged be vertue of Letters of horning raised at the instance of Donald and David Andersones in Haldrig William Anderson in Beigs John Davidson their, James Waddell in Kinparoch and Margaret Dow relict of umquhill John Reid in Clockplay all tennents to Sir Robert Murray of Abercarny, and the said Sir Robert Murray and Hary Christison procurator Fiscall to the Justiciary Court of the Midle district appointed by his Majestie for Setleing and Secureing the peace of the Highlands for their intrest, To make payment to them of the Soumes of money principall damnadges and expenses Ilk ane of the petitioners for their oun parts as is after divydit Viz the said James Waddell of the Soume of Eight merks Scots money for ilk ane of the Number of Fourtie Large Weddersheep with thrie hundred merks money forsaid ² of damnadge and expences Item more to the said James Waddell the Soume of Thriescore Sixtein pounds money forsaid as the pryce of two horsses with five hundred merks of damnadge and expences alledged due by him the said Donald Mcamorser in Dunardoch and the Saids John and Henry Buchanans to the said James Waddell one of the Chargers And alse to make payment to the said William Anderson John Davidson and Donald Andersone the Soume of Thrie hundred and fourtie merks money forsaid as the pryce of Threttie eight Large Weddersheep with thrie hundred merks of Damnadge and expensses alledged due by the said Donald Mcamorser and the Saids John and Henry Buchanans his said Master and Landlord for their intrest To the saids William Anderson John Davidsone and Donald Andersone, And in Like maner to make payment to the said Margret Dow and the said Sir Robert Murray her said master and the said procurator Phiscall of Court of the Soume of ane hundred and fourtie four merks money forsaid As the pryce of twelue Large weddersheep with ane hundred pounds of Damnadges and expences due by the said Findlay Mcanorser and the said John and Hary Buchanans the petitioners said master and Landlord for their intrests, And Suklike to make payment to the saids Donald and David Andersones of the Soume of Two hundred and Twenty pounds money forsaid with four Hundred merks of Damnadges and expensses alledged due by the saids Donald and Duncan Mcamorsers and the said Gilbert Mceven and the saids John and Hary Buchanans and alse the haill fornamed persones To make payment to the said Hary Christison procurator Fiscall for the use of the said Court of the Twentieth part of the haill respective Soumes abovewryten all Specified and Contained in ane pretended decreet alledged obtained at the instance of the fornamed persones against the petitioners and ther saids masters and Land Lords for their intrests before the Commissioners of Justiciary of the Midle district appointed for Setling and Secureing of the peace of the Highlands upon the Twenty day of March Last by past, And sicklike the petitioner was Charged to make payment to Alexander Drumond of Balhadies of the Soume of Eleven hundred pounds Scots money or therby with Certaine damnadges and expensses contained in ane decreet given and pronounced by the Saids Commissioners of Justiciary in the Said Court held at Dumblaine against the petitioners upon the […] day of the said moneth of March Last by past within Certaine Short Spaces nixt after the respective Charges under the payne of rebellion and putting of the petitioners to the horne and poynding of their goods and geir most wrongeously and unjustly Considering it Is of verity that the forsaid decreet at Abercarny and his tennents their instance proceeds upon ane probatione Led in absence against the petitioners at ane Court held at Stirling in October J^aj vi^c Nyntie Eight to which the petitioners are not cited for alledged accession to thift and resett wheras the petitioners are altogither Innocent and yet at that Court wher the Earle of Marr and Mr Adam Drumond of Meggins preceeded The Commissioners of Justiciary In Respect of the act of parliament appointing witnesses to be received in presence of the partie, and that the witnesses adduced were Such Common Ultronious and Nottorious Villans and theives who hade at all the Courts Exhibit Testimonies for a fourtein Or a Shilling even against the most honest men in the Countrey Being all under protections for thift etc Did not only Supperceid and delay to advyse or give any Sentance upon that testimony in all cases in Generall Bot also in his in particular With this Speciality Reserving the petitioners defences and objections against them before advyseing and accordingly the petitioners upon Nottice therof, haveing attended the nixt Court Which Satt at Pearth in Jannuary also Last Wherunto the Earle of Tullibarden was preces Did apply by way of petition which did bear their most relevant objections against the haill witnesses adduced Such as primo That they were all Comon theives who only came under protections to the Courts and were actually the Theives resetters and Taskallers of the goods Lybelled and Consequently Scorii Cruninis /2o/ That they did by themselves and others in their name express their bearing malice and ill will at Leny and his familly and promist to doe them ane ill turne Because they hade been accessory to bring some of their associats to punishment for their Crymes and Villanies /3o/ That those of the witnesses of the late name of Clan-Gregor bore the petitioners at deadly fead, and some of them were actually at the Murder of Lenys Grandfather all which objectiones which were most relevant to Cast the said witnesses the petitioners offered to prove by most habite witnesses, Wherupon the said Court at Pearth did by their interloquitor of the date the Seventh day of January Last by past under the hand of My Lord Tillibardin preses before Considering the relevancy of the objections allow the petitioners ane dilligence against witnesses for proveing therof and ordered a list of Such witnesses as the petitioners were to make use off to be given to Abercarny That he might have time to object against them and adduce probation to that effect And accordingly the petitioners did upon the Tenth day of February last a very Competent time before the said last Court at Dumblaine give in a list of most famous witnesses for proveing the petitioners Objections to Abercarny as the Copie of the Chargers Lybell, and interloquitor therupon at the Court at Stirling and a Copie of the petitioners petition and delyverance therupon at Pearth Court with a Copie of the List of the witnesses given to Abercarny therewith produced bears, Likeas /2o/ applicatione being made by Livetenant Collonell John Areskine and John Cuninghame of Ballandalloch wryter to the Signet two of the Commissioners of the said Highland Justiciary To his Majesties advocat for advyce anent the Ultronious protected, rogues who came in and fore hyre Sold their testimonies and probatione And the saids John and Hary Buchananas haveing given in a particular Memoriall for their case The advocat was pleased to advyse the matter with the saids Lords who therupon appointed a speciall Committie for regullating that Judicatur and wherupon report from the Committie was prepared and ready to be given in Wherby the Committie were of oppinion, That no Such witnesses as were admitted could be received at least against the petitioners the heritors as the Copie of the report bears, Wherby the said Hary Buchanan returned home and rested Secure, But about adjournment of the Councill the saids Lords being throng with greater affairs the report was not gott advised, Bot the said Adam Drumond of Megins being in toune (who for the most part is still preces to that Court) promist that no furder procedure should be made and accordingly sent word to that effect to the Court of Drumblaine by George Cockburne their Clerk, and which accordingly he delyvered, notwithstanding wherof the petitioners being informed, That the Court enclyned to proceed in their affair, Did wryt by ane express to his Majesties advocat who by his Letter therwith produced (which verifies and Confirmes the above Copie to be the³ true double of the principall report) Declared that report to be the Committies procedure in the affair and conforme to Law And Signifieing his expectation that the Court would not Otherwayes proceed till the Councills pleasure were knowen, Notwithstanding wherof the Court at Dumblaines which consisted much of strangers, To what hade either past in Court and who it seems would neither regaird the report of the Committie or the advocats Letter, Did proceed to advise and determine in their cause, And not only so farr Disrespected both the Councill (before which the petitioners affair being tabled till they hade advysed the report in discreation it might been expected they would Superceeded Especially Seing two of the most knowing of their oun number hade applyed for advyse and direction) and the advocats Letter, yea even the former delyverance and interloquitor given in the petitioners favors at the Courts at Stirling and Pearth That they repelled the petitioners haill Objectiones against the witnesses and probation and Sumarly without ever examineing one of the witnesses (whom the petitioner hade adduced for proveing their objectiones) Decerned against the petitioners, And Captain Leonard Robertsone of Straloch being preses, It was plainly told at least Suggested to the petitioner the said Hary Buchanan, That this this they hade done to Learn him to be so bold as to offer to date apply to the saids Lords of the Councill /3o/ To Shew how much ⁴ the petitioners and ther tennants are abused, albeit they were most Innocent of the matter Lybelled and farder then that perhaps the witnesses adduced and Some such rogues might dryve goods stollen, by them throw their Land or into Some houses upon the Sheills (and which is evident frae a Copie of the famous probatione Sustained against the petitioners Wherby the most part of the witnesses Depone at lifting and stealling the goods Lybelled) yet the petitioners are decerned forsooth in Eight or nyne merks for every eve, and in upwards of Two Thousand and ane hundred merks for damnadges and expensses as the Charge of horning therre with produced doeth instruct /4o/ So forward was they That they have Decerned for more then was Lybelled, In so far as ther is only thrie hundred and four merks Lybelled as the pryce of the Threttie Eight wedders pursued for And yet Decreet is given and the petitioner was Charged accordingly for Thrie hundred and fourtie Eight Merks As the said Charge and Copie of the Lybell verifies /5o/ allwayes denying that any tennents belonging to the petitioners the saids John or Hary Buchanans hade any accession to the thift or resett Lybelled yet some therof being done in the time of the Late open Highland rebellion, Land Lords who are only by the Construction of Law, That Supposes it in their power to Command their tenents) Lyable cannot at all be answerable for them in the time of that open hostility when they revolted from his majestie their dread Soveraigne and which was the oppinion of the Councill in that process pursued at the instance of the Laird of Kilmaronock, as is also instructed from the principall answers given by his majesties advocat under his hand to a querie of the said Highland Court therwith produced /2o/ As to others of the petitioners tennents the petitioners hade produced them to Justice and particularly the said Findlay Mcmorser is Lying Just now prisoner in the Tolbooth of Stirling, which is all that by Law Land Lords are lyable to Sexto The said decreet being taken away as to the principall Charger It falls as to the Fiscall in Consequence And the saids John and Hanry Buchanans for themselves and in name of their tennents Concerned Doe repeat the Samen reasones against that decreet obtained at the instance of the said Alexander Drumond of Balhadies And Therfore the forsaid two pretended Decreets Letters of horning following therupon and executiones of the Samen and haill effect therof Ought and should be suspended Nevertheless they were Content to find Sufficient Caution acted in the Saids Lords books Incase etc And Therfore Humbly Craveing the saids Lords to Grant Lteters to Charge the said Chargers To Compear and Bringing with them etc To be Seen and Considered etc As in the said bill of Suspension at more Lenth is Contained Which Bill of Suspension Being Read in presence of the Saids Lords They Sisted executione theron untill ane Certaine day then nixt to come now bygone, And in the mean time Ordained the Charger to see and answer Conforme wherunto the said Chargers haveing seen the said bill of Suspension and taken inspectione therof They gave in the answers therto following viz The first reason of Suspension is That the said decreet proceeds upon a probation Led in absence to which the Suspenders were never cited, To Which Its answered That the suspenders were not only Lawfullie Charged to Compear at the Said Court (whose dyets are peremptor) as appears by the decreet therwith produced, Bot also Leny younger was personally present the same day in Stirling that the action was called, and wilfully absented himself That the receiveing of the saids witnesses might be postponed therby designeing to gaine time for frustrating the Chargers of their probation as formerly he hade don at Dumbartoune the Court Immediatly preceeding, wher the same action was intented at which time he most iniquiously conducted and Suborned Severall witnesses for reprobating the witnesses adduced by the Chargers for proveing the Lybell at the Said Court Which he did effectuat, and this is evident by the Declaratione of the saids witnesses before the Commissioners of Justiciary therwith given in, And by the declaratione of others retained in the Clerk of that Court his records which came to light by the Commissioners most painfull and dilligent inquyry, what the ground was of a Clamerous Complaint made to the privy Councill by Leny upon the Saids Commissioners haveing received Subborn witnesses against him which is intirely false, For the saids Commissioners haveing made search as said is Did find non concerned in such a villany, and such as were in his Circumstances to wit defenders, The Second reason of Suspension is That the witnesses adduced were notorious villans, and altho the Commissioners Did Declare, That in respect of the act of parliament by which witnesses are to be adduced in presence of the party, The Suspenders Should have been allowed to propone their objectiones against the witnesses at adviseing It wes answered That the Commissioners did indeed proceed with all tendernes to the Suspenders Bot the Lybell being only for restitution and repairation of Civill damnadges It was most Justly admitted to probation, albeit the suspender thought it not fitt to be present at the examinatione of the witnesses and as the Commissioner did allow the Liberty to object, so they did object, and their objectiones were afterward most Justly repelled as will appear by what followed The Suspender does keap infamous and false alledgances against the⁵ witnesses As first that they were theives, Resetts Taskallers and Sory Crimmis 2dly that they had exposed malice against Leny for bringing them and some other to Justice, and Some of the witnesses were accessory to the murder of his Grandfather Which objectiones being admitted to his probation and he appointed to give in a List of the witnesses to be adduced for proveing the Objectiones to the Chargers, he did accordingly give that List to the Chargers the tenth of February a sufficient time before the Sitting of the Court yet his witnesses was not received to prove his objections Bot he was decerned It was answered That the parties being one formerly cited and haveing Contumaciously Disobeyed and failled to appear although Leny younger was upon the place, It was abundance of favor that the objectiones against the witnesses were Reserved and a dyet appointed for proveing of them, Bot this being against the Comon rules, as Leny was allowed a probation contrair to them Which allowes no probation against witnesses Unless the party protest for reprobator before adduceing of the witnesses, or the objections be instantly verified, so the Commissioner Ordained Leny to give in to the Chargers a List of the witnesses he was to make use of in the reprobator that the Chargers might Likewayes redargue the Suspenders witnesses And that betwixt the first day of February Bot altho all this was favor, and the interloquitors of that Court are peremptor Leny thought fitt to faill in Sending this List againe the first of February As he was appointed Therfore the Court did proceed to determine rejecting his witnesses And ther was most Just ground for it, For Leny haveing failled as is acknowledged by the bill of Suspension to intimat the List of his witnesses againe the terme assigned It was equivolent to a Circumduction, Nor hade the Chargers the time allowed them by the interloquitor to adduce witnesses for redargueing Lenies witnesses, And the Lords of Councill would be pleased especially to remark That Lenies probationes would not bot be Suspicious after the particulars which hade hapned at Dumbartone /2o/ The Objectiones against the witnesses Ought not to be Sustained, Because they were not only Contrary to the Still and Custome of the Court of Justiciary who admitt witnesses albeit Suspect of resett and accessory to the Crymes And determine with regaird to all these grounds of Suspition upon due Consideratione of the Circumstances and Credibility That Arysses upon tryall of the haill matter Bot Likewayes even against the designe of Such Commission for as these Commissions are appointed for the extraordinar case and Circumstances of the highlands so they are allowed a greater Latitude in the exercise of their Jurisdiction, And the Crymes requyre a Singular maner of probation /4o/ The suspender does alledge that two of the Commissioners haveing applyed to the kings advocat for advise Concerning what witnesses were to be admitted in Such cases, and his Lordship haveing Laid the Matter before the Councill, Ther was a Committie appointed to Consider it who did prepair a report which was not devised Because of the other more urgent affairs of the Councill Bot one of the Commissioners being in toune promised their should be no furder procedure untill the report were advised, yet the Commissioners did proceed to determined at Dumblaine Its answered primo These queries could not concerne his particular Caise, For the Suspender was allowed to prove all the Objectione in the Queries, Which he offered in Court, and not haveing obeyed the termes prescrybed him by the Commissioners He faillied by his oun fault 2dly The forsaid report was not approven, and when offered to Councill, It was put off to a farder Consideration, and indeed it is of great Concerne to that part of the nation that the Commission of Justiciary be allowed to proceed with all necessary freedome without which the queit and intrest of that Countrey most necessarly perish Quinto It was alledged for the Suspenders That they are⁶ decerned in exhorbitant pryces and damnadges It is answered That by the Constant Custome of the Court the pursuers being found really Spulzied and robbed The Commissioners Finds it most Just to allow the pursuers Inra mentum in Litem both as to the goods taken away and the expensses, Nor is their any exorbitance of either in this case for the goods were⁷ really worth the pryces Lybelled at the time of their being spulzied And Considering the vast defficultie in discovering and pursueing villanies of thus Nature, The expensses Is no more then what is Suitable for albeit the Totall of the Decreet appears Somewhat considerable yet the Samen will be but Small when divyded amongst the severall persones to whom the fyve severall depredationes contained in the Decreets belongs, 6o⁸ Wheras it is alledged, that the Court was so forward as to decerne for more then is Lybelled In so farr as ther was only thrie hundred and four merks lybelled As the pryce of the Threttie Eight wedders Wheras ther is Thrie hundred fourtie Eight merks Decerned Its answered that the decreet is apponed Wherby the decernitor is precesly Conforme to the lybell, And the termes of the bill being that the Commissioners were so forward are disrespectfull /7o/ And Wheras it is alledged that Some of the depredationes Lybelled were in the time of the late insurrectione in the Highlands And Therfore that the saids Lairds of Leny cannot be lyable for any thifts or recepts committed by his men at that time, Its answered That the alledgance is not relevant primo because these robberies were not Committed by ane parties in hostile opposition /2o/ the Commissioners of Justiciary haveing applyed to the Councill for advice in the said matter and their Lordships by their act the Twentie Nynth of November J^aj vi^c nyntie four Found all persones lyable in restitution of goods Stollen dureing the said insurrectione unless the partie pursued for restitution could prove that the goods away taken were brought into, Consumed in their enemies Camp Which is not so much as alledged by Lenny and tho it were its weell knowen that neither he nor his men were concerned in that insurrection as to the pretence that the principall decreet being taken away the decernitare for the expensses in favors of the Fiscall does Likewayes fall Its answered The Suspenders shall have ane answer when they remove the principall decreet The Saids Lords of privy Councill by their act dated the fourtein of Feburary J^aj vi^c Nyntie Fyve were pleased to declare that they would grant no sist nor suspension of the Justiciar decreets till first the suspender instruct palpable iniquity to be Committed by the Judges by productione of ane extract of the decreet under the Clerk of Courts hand, or ane instrument against them that he refused to give ane extract Bot to postpone the Charger of his Just payment, and to procure ane Suspension of the Charge, Lenny Consults his agent a persone very fitt for his purpose, And he forsooth patches up ane instrument bearing that he requyred the Clerk to give ane extract, and that the Clerk refused it albeit the Clerk cann prove that he was alibi at the time; By all which tricks and Sinistreous methods, The saids Lords might evidently perceive That Leny designs villany as weell as his men acted it, by stealling of the chargers goods now Claimed, and therfore the Suspensione Ought not only to be refused, Bot it merits the saids Lords Consideration to examine in the Subborning of witnesses and the patching up of the false instrument For if Such acts of Subborning and Forgery pass unpunished no man is secure either of life or fortune, And of what dangerous Consequence this may prove to the nation Is humbly remitted to the saids Lords Consideratione It is in the last place earnestly intreated the Saids Lords would be pleased to Decerne large expensses to the chargers for presenteing and attending this action before the saids Lords because the petitioners are all poor people uttarely beggered and ruined by the frequent thifts and robberies Committed upon the petitioners Wherby the petitioners are incapacitat to prosecute their actions themselves, Therfore Abercarny their master was necessitate for procureing releive to them in their distress to pursue the Samen which has cost him very great trouble and expence in procureing the said decreet the Samen being most Litigeously and contumaciously defended both before the Commissioners and the saids Lords as the answers bears The Lords of his majesties privy Councill Haveing Considered the above bill of Suspension Given in to them be the above Gilbert Mceven Duncan Mcinorse Donald Mcinorse Donald Buchanan and John and Hendry Buchanans elder and younger of Leny their masters suspender against the above Donald and David Andersons William Anderson John Davidson, James Waddell, Margret Dow, and Sir Robert Murray of Abercarny and the above Hary Chrystie with the Chargers answers made therto They have Refused and hereby Refuses the said bill of Suspension and Finds the Letters at the Chargers instance against the Suspenders Orderly proceeded And Ordaines the same to be put to farder executione.