D1696/8/1
D1696/8/12
Sederunt
Lord chancellor; Duke of Qweensberry; Earl of Argyll; Earl of Mortone; Earl of Lauderdale; Lord John Hamilton; Lord Belhaven; Lord Ruthven; Sir James Ogilvie; Lord Advocat; Lord Hallcraige; Lord Anstruther; Laird of Pollock; Laird of Stevensone; Sir Thomas Livingston; Laird of Cessnock; Proveist of Edinburgh
1. NRS, PC2/26, 254r.
2. NRS, PC2/26, 254r.
1. NRS, PC2/26, 254r.
2. NRS, PC2/26, 254r.
D1695/8/25
D1695/8/251
Act
Anent the petitione given in to the Lords of his Majesties privy Councill be Patrick Stewart of Ballachin and Alexander Stewart his brother Shewing That where their Lordships were pleased by ther delyverance upon a former petitione to Change ther Imprisonment to a Confynement within the toune of Edinburgh and two mylles about the same upon Caution to observe the said Confynment and to live peacably under the government and Granted warrand for setting the petitioner at Libertie in the termes forsaid and haveing accordingly Found suficient Caution, yet James Hamilton keeper of the Tolbooth of the Cannogate Does yet Detaine them prisoners whill they make payment of the Jaylor fies, Which are very Considerable by reason of their Long Imprisonment Wherby ther Lordships fewer towards them is rendered altogither ineffectuall, And seing the petitioners are neither able to pay the saids fies Neither is it usuall to exact the samen from prisoners in the petitioners Condition who have been mantained upon publict Charity without Which It is Imposible for the petitioners to Subsist being involved in so great debts tho the long Imprisonment now for the space of two years and thrie moneths And Therfore Humbly Craveing the saids Lords to the effect aftermentioned as the petition bears The Lords of his Majesties privy Councill Having Considered the above petition given in to them be the above Patrick Stewart of Ballachan and his brother They heirby appoint James Hamilton keeper of the Tolbooth of the Cannogat to sett the petitioner at Liberty without exacting any house dues And Recomends to the Lords Commissioners of his Majesties thesaurie To Cause make payment to the said James Hamilton of the saids house dues Caution being first found Conforme to ther former act for their liberatione.
1. NRS, PC2/26, 18v-19r.
1. NRS, PC2/26, 18v-19r.
D1695/8/24
D1695/8/242
Sederunt
Lord Chancelor; Duke of Queensbery; Lord Yester; Viscount Tarbat; Lord Raith Thesaurer deput; Lord Beilhaven; Lord Advocat; Lord Hatton; Sir George Campbell; Provest of Edinburgh
1. NRS, PC2/26, 18v.
2. NRS, PC2/26, 18v.
1. NRS, PC2/26, 18v.
2. NRS, PC2/26, 18v.
D1695/8/23
D1695/8/231
Decreet
Anent the letters or Complaint raised and pursued before the Lords of his majesties privy Councill at the instance of Robert Blaikwood merchant and late baillie of Edinburgh with Concourse of Sir James Stewart his majesties advocat for his highnes intrest in the matter underwritten Mentioning That wher by the Lawes of this and all other weell Governed nationes and particularly by the lawes and acts of parliament of this kingdome, The violent intrudeing of any person and Continueing in the possession of houses and yeards and Cuting of planting about the Same without any legall title and after they are legally denuded therof Be Crimes of ane high and Severly punishable Nevertheless It is of verity that the said pursuer haveing purchased the Lands of the estate of Girvan-Maynes be vertue of ane roup and Decreet of Sale of the said Estate before the Lords of Councill and Session upon the Twelth day of Jully Jaj vic Nyntie four years and found Securitie for the pryce therof, Yet Sir Gilbert Kennedy eldest Lawfull Sone to the deceast Sir John Kennedy of Girvanmaynes Contrare to all Law equitie and Justice Still Continues in the violent possession of the houss of Dalquharn and yeards therof And the said Sir Gilbert Kenedy and Charles Gordon of Breicke husband to Dame Margaret Kennedy relict of the said Sir John Kennedy and Qwintine Gibson at Drumochrin Wood Cutter, Cutts doune the tries of the said estate of Girvan Maynes and other planting growing about the said house of Dalquharne and yeards therof, And Therfore the said Sir Gilbert Kennedy not only ought and Should be Decerned to flitt and remove from his violent possession of the said house and yeards But likwayes he and the other persones above named to be punished in their persones and goods to the terror of others to Comitt the like in time comeing And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certain day now bygone To have answered to the said Complaint And to have heard and seen such order and Course taken theranent as appertaines Under the paine of Rebellion and putting of them to the horne with Certification etc As in the principall Lybell or Letters of Complaint raised in the said matter with the executiones therof at more length is Contained Whilk Lybell having bein this day Called in presence of the saids Lords of his Majesties privy Councill, And the pursuers Compeiring personally with Sir James Ogilvie and Mr David Cunningham his Advocats, And the said Sir Gilbert Kennedy and Charles Gordon two of the defenders Compeairing personally with Sir James Stewart his Majesties Advocat and Mr Rorie Mckenzie Advocat and the above Quintrie Gibson the third defender being oft times Called and not Compeiring The saids Lords Doe heirby Decerne and Ordaine the said Sir Gilbert Kennedy to enact himself in the books of privy Councill That he shall not Cutt doune the trees of the estate of Girvan Maynes, Woods nor other planting growing about the house of Dalquharne and yeards therof with Certification of Consent of the said Sir Gilbert That if he faillie he shall quyt his possession of the said estate house and yeards, and by the said enactment is to oblidge himself to quyte and pass frae the said possession and flitt and remove himself from the house and yeards Lybelled.
1. NRS, PC2/26, 17v-18v.
1. NRS, PC2/26, 17v-18v.
D1695/8/22
D1695/8/221
Act
Anent the petition given in to the Lords of his Majesties privy Councill be Mr James Borthwick of Stow Shewing That the petitioner being infeft in the lands of Stow with the Milnes multers and Sequells And haveing according to the petitioners unquestioned right resolved to build a mylne upon his lands for his oun accomodation and advantage the petitioner has advanced the said mylne so far that four men would Compleat the work in the space of thrie or four dayes, John Hoppringle of Torsons heritor of a Nighbouring Milne Conceaveing that the Just Improvement of the petitioners oun might withdraw a part of the profit of Grinding at his Milne by persons who were not Thirled Hath offered a petition to the saids Lords pretending (as the petitioner was informed) That the petitioners Land are thirled and desireing that the work may be Stopt and what the petitioner hes done demolished wherupon the petitioner is informed ther is a dilyverance Stopting the petitioners former procedour till both parties be heard before ther Lordships This delyverance is not Intimat to the petitioner nor have the petitioner hade the opportunity to see or know the grounds offered to the saids Lords for stoping the work But because a short delay after the petitioner hath bestowed all the expences would be very prejudiciall and that the Councill may shortly adjourne He begged Liberty to say the following unansweable grounds of Law and Justice which the petitioner is Confident would satisfie the saids Lords That his work ought to be stopt so much as ane day primo Torsons Cannot instruct that he is in possession of the said Multers of the petitioners lands and however the saids Lords doe sometimes interpose wher possessiones are designed to be Sumarly inverted yet that takes only place wher it is evidently instructed and made appear that the pursuer was in possession Which here Is not nor Cannot be proven Secundo the petitioner doe stand infeft in his Lands with Mylnes and Multers in the dispositive Clause of the petitioners rights Which does most Certainly Import a right to build a milne and ane Imunitie from all Servitudes of Thirleadge and the Lord Borthwick the petitioners author hade so much the prospect of building a milne on the lands now belonging to the petitioner That when the petitioners father purchased the same His Lordship granted a bond thirling Certain lands belonging to his Lordship to the milne to be built upon the lands purchased by the petitioners father and tho the reasones the petitioner offered may be suficiently Clear without giveing ther Lordships the2 trouble of notticeing writtes yes for super abundance he had therwith produced his oun and his fathers infeftments Bearing cum Molendinis et Multuris Togither with the Ratification of the petitioners fathers rights And specially that bond of Thirleage and the Superior Confirmatione therof. Tertio Torsons haveing formerly applyed to the shirreff of the shyre upon the like pretences as are offered to the saids Lords and desireing that their work might be Stopt till both parties were heard He did obtaine a stopt and a warrand to cite the persewer Wherupon both parties haveing Compeired and produced their rights The Shirreffs by their Delyverance of the Eightein instant Considering both parties Chartors, and that it did not appear that the petitioners tennents were astricted to Torsons his milne of Stow, and that he was infeft with milnes multers and Sequells They therby took of the Stopt Reserving to Torsons to insist in his Declarator of right as accords, This Delyverance Is a finall decision of that matter, and affords the petitioner the exception of res Judicata because the Shireff was unquestionablie Competent Judge to this question of possession and Torsons haveing made his application to the Shireff and obtained a stopt to the petitioners work The Shireffs decision to ultimat as to the point of possession, And ther is no other remeed of Law But a declarator of right which the Shirreff did Reserve And which their Lordships would not Determine And Therfore tho the petitioner has mentioned the grounds upon which the Shirreff did most Justly proceid yet their Lordships would need to Consider no more then the Shirreffs interloquitor therwith produced who is a Competent Judge and hath allready determined the point upon Torsons his application And Lastly ther Lordships would be pleased to Consider That ther is greater Latitude in Stopting the begining of a work Then in Stopting the effect and advantage of the work after all the expences bestowed which will be a vast and Irreparrable prejudice to the petitioner on the one hand Wheras on the other hand if the petitioner were found to have built a milne within Torsons his Thirle The petitioner would not only (by the ordinar Course of Law) be obliged to Dimolish his milne but would be Lyable for the abstracted Multers of all that should be ground therat dureing the dependance And he does not declyne to undergoe these hazards and to Sustaine the petitioners right before the Judge ordinar to whom Torsons did also apply himself by raiseing a Declarator before his application to the saids Lords or the Shireff, And Seing the petitioners damnage by stoping the work Is Irrepairable And that the ordinary Course of Law would Suficiently repair Torsons if he had done him wrong And Therfore humbly Craveing the saids Lords would take oft the said stopt as the said petition bears The saids Lords of his majesties privy Councill having heard this petition given in to them be the above Mr James Borthwick of Stow and answers made therto for John Hoppringle of Torsons and the parties being Called and haveing Compeired with ther advocats who were fully heard And the saids Lords haveing Considered the bill and answers and debate They hereby Allow and give Warrand to the said Mr James Borthwick to goe on in building of the said milne In Respect he has given bond and found Suficient Caution acted in the books of privy Councill that he shall not make any use of the said Milne, nor make the same a going Milne nor Lay the Milnestones upon her untill the point of right and thirlage in debate betwixt the petitioner and the Laird of Torsons be first Decyded and determined be the Lords of Session To whom the saids Lords Remitts the same to be discussed Sumarly and like wayes in case Torsons prevaill in the said action that the petitioner shall dimolish the said milne under the penaltie of one hundred punds Sterling incase he Shall transgress in any part of the premisses.
1. NRS, PC2/26, 16r-17v.
2. Insertion.
1. NRS, PC2/26, 16r-17v.
2. Insertion.
D1695/8/21
D1695/8/211
Act
Anent the petition given in to the Lords of his majesties privy Councill be James Garden of Ballastreen John Gordon of Burdland and Alexander and Robert Farquharsones for themselves and in name and behalf of the remanent witnesses cited in the proces at the instance of William Ewan in Contelich against William and John Gardens elder and younger of Bellamoir and in the exculpation raised theranent Shewing That wher the petitioners were Cited to Compeir before ther Lordships to bear witness in a proces pursued be the said William Ewan against the said William and John Gardens for their alledged accession to the Escape of a Murderer and Sending him to Flanders to be a Souldier in Stead of presenting him to Justice, And the defenders haveing raised ane exculpation the petitioners were also cited therupon as ther severall Copies therwith produced would instruct, And the petitioners in obedience to the saids Charges having Come over from their oun housses in November last Which is betwixt thrie and Fourscore of myles from this place most of ther depositiones were taken in the Cause upon advyseing wherof the Lords Ordained the defenders to pay to the pursuer the Sum of ane hundred pund Scots for defraying of his expensses in the process and which was instantly payed by the defenders as appears by the extract of the act and discharge therof therwith produced, And albeit the pursuer Cannot pretend that he was at a six pence of expensses in this proces either to Advocats Clerks or otherwayes yet he declynes to pay the petitioners their expensses altho his oun personall Charges was born by a gentleman whose Servant he was at the time and whose other bussines had brought him over here occassionally And Seing most of them are poor mean people and was necessitate to beg their bread home And tho the Lords of the Committie who took ther depositions Recomended them to the saids Lords to allow them their expences and that by the Copie of the principall Lybell therwith produced It appears they were Cited to the twentie two day of november Last And by the date of ther depositiones taken it appears they were detained twenty dayes and upwards before they were examined besides thrie dayes in comeing and thrie in returning home, And that the said fyne of ane Hundred pund Is Misapplied to the pursuers oun privat use without regaird to ther Lordships interloquitor And Therfore Humbly Supplicating the saids Lords to the effect aftermentioned as the petition bears The Lords of his majesties privy Councill Having Considered this petition given in to them be James Gairden John Gordon Alexander and Robert Farquharsones above Designed They herby Decerne and Ordaine the above William Ewan of Contelich To make payment to the petitioners and also to Alexander Sympson in Bridgend of Glentaner Donald Farquharsone of Cobletoune, William Duncan at the mylne of Biralyne George Lessly at the mylne of Biralyne John Shaw in Badnagreigul and Alexander Shaw ther witnesses cited and Compeiring in the above Lybell at the said William Ewans instance against William and John Gardens and others of the Soume of Sixtein Shilling Scots to each of the saids witnesses who were horss men, and Eight Shilling to each of them who were foott men per diem And that frae the Nynteinth day of November Jaj vic Nyntie four years to the Tenth day of December the said year being in all twentie two dayes And Ordaines Letters of horning on fiftein dayes and others needfull under the Signet of privy Councill to be direct heiron in forme as effeirs.
1. NRS, PC2/26, 15r-16r.
1. NRS, PC2/26, 15r-16r.
D1695/8/20
D1695/8/201
Decreet
Forasmuchas The Lords of his Majesties privy Councill by ther act of the date the twelth day of march last by past Have modified the Sum of Two Thousand pounds Scots money to be payed to Lady Anna Southerland Viscountess of Arbuthnot be the Chamberlands and tenents of the estate of Arbuthnot for aliementing of her Six severall Cheldreen besides the heir Commenceing from the terme of Mertimiss Jaj vic nyntie four years and appoints the samen to Continue so long as the Cheldrein are allowed to remaine in family with her and ordaines the first termes payment to be at Whitsunday Jaj vic and Nyntie five years and so furth yearly at two termes in the year Whitsunday and Mertimiss be equall portions dureing the space for said, And the saids Lords of privy Councill Considering that the said Viscountess of Arbuthnot Is since the makeing of the said act deceased Therfore They Ordaine the said aliement for the Whitsundayes terme therof to be payed to the Earle of Southerland father to the deceast Viscountess and Grandfather to the saids Cheldreen as executer to the said deceast Viscountess And the aliement for the mertimiss terme to be payed to the said Earle as he who hath now with Consent of freinds the keeping of the saids Childreen And Ordaines letters of horning on Six dayes and others needfull under the signet of Councill to be direct heiron in forme as effeirs.
1. NRS, PC2/26, 14v-15r.
1. NRS, PC2/26, 14v-15r.
D1695/8/19
D1695/8/191
Decreet
Anent the bill of Suspension given in to the Lords of his Majesties privy Councill be Mr Alexander Brown of Thorniedykes Shewing That wher the petitioner Is lately charged be vertue of letters of horning direct furth against him at the instance of Jannet Craig Lady St Leonards To make payment to her of the Sum of Five Hundred merks allenarly due by the petitioner to her for aliement to her and her familly, Since Aprill Jaj vic Nyntie two to Aprill Jaj vic Nyntie thrie years being ane year Compleat, And of the like Sum of five hundred merks since Aprill Jaj vic nyntie thrie to Aprill Jaj vic Nyntie four years the said terme being first come and bygone and alse to put her in the possession of the house yeards and parks of St Leonards with the Kames and Carriadges of the said estate and ane horss grass Conforme to her husbands Dispositione and factory and Conforme to ane Decreit of ther Lordships obtained at her instance against the petitioner of the date the twentie Sixth of December Jaj vic Nyntie thrie years under the paine of rebellion and puting of the petitioner to the horne who for alledged not obedience intends to Cause denunce the petitioner rebell and put him to the horn most wrongeously and unjustly Considering It is of verity that the forsaid Decreet was obtained before ther Lordships against him in absence when he was lying sick of a Feaver without Calling so much as any of the Creditors of George Home of St Leonards her husband, Wheras if either the Creditors or the petitioner who is not only a preferrable Creditor on the estate of St Leonards But also was nominat factor by St Leonards before he went to Flanders for uplifting of his rents and payments of his Creditors, had been cited to hear any such Decreet given out they would have undoubtedly Compeired and proponed thir defences viz That they being preferrable Cautioners upon the estate of St Leonards long prior to the said George Home his Contract of mariadge with the said Jannet Craig she Could have no aliement out of the said estate at least dureing the life time of the said George Home who is now a Livetenent in Flanders and has a good pay which might mantaine her and him at least what ever aliement the saids Lords allowed her Could not be above the half which is now allowed Considering the Smallnes of the Estate that the debts does more then exhaust the same Secundo the petitioner Cannot be charged for to make payment of the rents Because the petitioner Is only factor by St Leonards for uplifting the rents dureing his absence furth of the kingdom, Which Cannot debarr the preferrable Creditors But so it is the tennents are distressed at the instance of Mary Scot relict of umquhill Robert King and John King her Sone for payment of the sum of Ane Thousand merks yearly to them as being preferred by the Decreet of the Lords of Councill and Session to the rents of the saids Lands And the rents are arreisted at ther instance Conforme to the executions of the horning and arrestments therwith produced, So that altho the forsaid Decreet for aliement were Sustained as valid by the saids Lords yet the petitioner can be no furder Lyable then Conforme to the petitioners intromissiones he being only factor And the tennents refuseing to make payment to the petitioner In Respect of the dilligence at the preferrable Creditors instance And therby the rent having been refused to be payed to the petitioner She Cannot be distressed for payment to her And she might disscuss her preferrence before the Lords of Councill and Session before the petitioner Could Warrantably make payment to her of2 ane groat as also the Chargers injust in swa far as the petitioner is Charged for payment of the rent due Since Aprill Jaj vic Nyntie tuo Wheras the petitioner has made payment of the haill Annuity payable for the year Jaj vic Nyntie two Conforme to her factors Discharge dated the Eleventh of Jully Jaj vic nyntie four years As the two discharges therwith produced does testifie So that the petitioner being Charged for more then is due and being allwayes willing to have payed her till he was obstructed by the Areistments and tennents distress so that now the petitioner Cannot be Lyable in payment And Therfore Humbly Craveing the saids Lords to Grant letters for Calling the said Charger for production of the saids pretended letters and Charges with the executiones therof To have been Seen and Considered be the saids Lords and to have heard and seen the Samen Suspended for the reasones and Causes found and others as the said bill of Suspension bears Which bill of Suspension being read in presence of the saids Lords They allowed the said Lady St Leonards to see and answer the same, And in the mean tmie sisted execution at the Chargers instance against the said Suspender untill the answers be given in and advysed And the said bill of suspension and answers therto being read this day and Considered be the saids Lords of privy Councill They heirby Refuse the said bill and reason of suspension And not only Finds the letters orderly proceided against the said Mr Alexander Brown Suspender But also Decernes and Ordaines the tennents and possessors of the Lands of Hangingshaw Netleflat and others lifrented by the Charger to make payment to her of the said Sum of five hundred merks of aliement yearly upon her the Chargers oun recept, And Discharges the Creditors of St Leonards or the factor to trouble the saids tenents in so farr as concernes the said five hundred merks of aliement And Ordaines letters on Six dayes to be direct against the tennents for payment.
1. NRS, PC2/26, 13r-14v.
2. Insertion.
1. NRS, PC2/26, 13r-14v.
2. Insertion.
D1695/8/18
D1695/8/181
Act
Anent the petition given in to the Lords of his Majesties privy Councill be Mr Mongo Carnegie factor appointed by the saids Lords for the estate of Arbuthnot Shewing That upon debate betwixt the late Viscountess of Arbuthnot and Arbuthnot of Knox before the saids Lords They appointed him ane factor for the rents Jaj vic Nyntie four of the estate of Arbuthnot with power to him to intromitt therwith and dispose therupon, And to hold Courts therfor, and obleidged the petitioner to pay the aliements to the Cheldreen with the annualrents and publict burdeins and to hold compt, according wherunto the petitioner found suficient Caution And be vertue of their Lordships Commission Legally Secured the victuall in the Girnells and sold the Same to Merchants But was prevented in the delivery by George Auchterlony and Robert Arbuthnot merchants in Montross who pretending they hade bought the Same from Alexander Innes Servitor to the deceast Viscount brock in upon it and Carried the same privitely away without his knowledge wherby he not only incurred the penalties of the Contacts entered into be him with other merchants, But also is refused payment from the saids George Auchterlony and Robert Arbuthnot at four pund Six Shilling Eight penies per boll of the meall and Seven weeks per boll of bear at which rate the petitioner sold what he intromitted with, Wherfore he was necessitate to pursue the saids Auchterlony Arbuthnot and Innes before ther Lordships for their wrongeous and unwarrantable takeing away of the said victuall by Spulzie or other Clandastine ways That they might have been decerned to make payment to the petitioner and punished for ther transgressions as Contemners of their Lordships authoritie, But ther being Litle time for such processes Ther Lordships were pleased to remitt the Spulzie to the Session As to which in all duty the petitioner Submitts But ask Liberty to represent that he was never Ambitious of this trust And am most unwilling2 to to incurr the Character of being troublsome to their Lordships; or griviceus to the petitioners Nighbours, Yet seing by Commissione he and his Cautioners are Lyable to the Cheldreens aliement publict burdens, annualrents of debts Ministers Stipends and others therin mentioned, And yet the petitioner Cannot have the effects of the estate but by persute before the Session in Comuni forma And Therfore humbly Craveing that the saids Lords would be pleased Either to Grant Letters of horning at the petitioners instance against the fornamed persons for payment of the victuall intromitted with by them at the rates forsaid Or disburden him and his Cautioners of their factory and find the petitioner only Lyable for his actuall intromissions as the said petition bears The Lords of his majesties privy Councill haveing Considered this petition given in to them be the above Mr Mongo Carnegie They heirby Give Order and Warrand to their Clerks to give out letters of horning at the petitioners instance against the persones abovenamed for payment of the victuall intromitted with by them at the rates therin specified upon fiftein dayes warning.
1. NRS, PC2/26, 12v-13r.
2. The prefix ‘un’ is an insertion.
1. NRS, PC2/26, 12v-13r.
2. The prefix ‘un’ is an insertion.
D1695/8/17
D1695/8/171
Warrant
The Lords of his Majesties privy Councill do hereby Give order and Warrand to their Clerks to give up and delyver to John Watson in Killforgie and his Cautioners a bond granted be him and them for his appearance when Called for Containing the penaltie of one hundred punds Scots For which this shall be to them a Suficient Warrand.
1. NRS, PC2/26, 12r-12v.
1. NRS, PC2/26, 12r-12v.