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.
D1698/2/13
D1698/2/131
Act
Anent the petitione given in to the Lords of his majesties privie Counsell by Dam Mary Grant relict of the deceast Sir Alexander Hamiltowne of Haggs and now Spouse to William Johnstowne of Graitney Shewing That the petitioner is Sore to expose the conditione and Straites of her and her sone to ther Lordships But necessitie is constrained by no Lawes And ther Lordships are in a peculiar maner the protectors of those who cannot well provide for themselvs as wnder his majestie fathers of ther Cowntrie The petitioner had ane opulent Liferent of Two Thowsand two hundereth and fiftie merks (cess and other publict burdens dedwced) yeirly from her deceast husband owt of his Lands of Haggs As appears by the Samen and the rentall of the Lands therwith prodwced This her present husband and his creditors have uplifted ever since her Last mariage for these […] yeirs bygone while in the mean tyme the petitioner hes bein redwced to Live in2 very narrow circumstances tho She had the burden not only of the aliment and educatione of her said son of the first mariage But also of provisione for her present familie Notwithstanding wherof the petitioner hes driven it off till Lately that by her hwsband and his creditors ther uplifting and affecting the rents She hes not had fiftie merks Scotts Since Whittsonday Last for defraying the burdens before exprest wherby efter selling or impignorating of any valweable wttencills belonging to herself She hes bein necessitat to contract debts And now haveing no furder fond of credit She is become wtterly destitute her freinds applyed to her husband for his granting a tack of her liferent Lands That Less then a competent pairt of the tack dwety might be payed to her for aliment of herself her son and family Her husband does indeed Subscribe the tack (therwith produced) blank in the tacksemen the tack dwety and price of the victwall But he by the advice of evell Councellors being pleased to keep the victwall at soe extravagant a price that non could be fownd to take the tack the bargaine is eluded and the petitioner left upon ther Lordships Justice and Commiseratione Ther is nothing more congwwows to Law and naturall equitie then that the petitioner should be alimented out of her own And the acts of parliament expressly provide that the appeirand Air owght to be alimented owt of the Lands Liferented when he hath no frie rent besydes neither could the petitioners Superindwceing ane husband wherby his creditors come to affect those rents exclude her son or her from this right and naturall priviledge which they had anterior therinto And therfore humbly craveing to the effect eftermentioned As the said petitione bears The saids Lords of his majesties privy Counsell haveing considered the above petition And ansuers therto by Archbald Hamiltowne of Haggs And Likewise ansuers therto by Graitneyes Creditors upon the tenth day of Febrwary instant they appointed a Comitie of ther own number for considering the said petitione And Severall Ansuers foirsaids made therto And to hear the said Archibald and the saids Creditors of Graitney therupon Which Comitie haveing this day made ther verball report to the Counsell in the said mater And the saids Lords haveing considered the Comities Verball report Beareing that the creditors were content that ane aliment might be assigned to the Lady out of the Jointure She hath by her first husband Executione being reserved to the Creditors against The Ladyes present husband who is only ther debitor And that for Soumes not very considerable The Saids Lords doe heirby appoint and allow ane aliment to the Said Lady of Twelve hundereth merks yeirly Togither with the customes out of the Jointure formerly allowed to her of her first husband to be payed by the tennents and possessors of her Jointure Lands and that at two termes in the yeir by way of advance commenceing the said aliment from the terme of whitsonday Last bypast And decernes and ordaines the tennents and possessors of the said Ladyes Jointure Lands by her first husband instantly to make payment and Satisfactione to the said Lady of the Soume of Six hundereth merks with the Customes from the terme of whitsonday to Mertimes both Last bypast And of the Said Soume with the customes from mertimes Last to whittsonday next at the said terme of whitsonday And of the lyke Soume and customes from whitsonday next to mertimes next at the said terme of Mertimes And of the lyke soume and customes yeirly and termly by way of advance in all tyme comeing dureing the said Lady her lifetyme And ordaines Letters to be direct heron against the tennents to be named in the Letters And that wnder the Signet of Councill upon a charge of fiftein dayes and others in forme as effeirs
1. NRS, PC2/27, 87r-88v.
2. The word ‘the’ scored out here.
1. NRS, PC2/27, 87r-88v.
2. The word ‘the’ scored out here.
D1698/2/12
D1698/2/122
Sederunt
Lord Chancellor; Earl of Mellvill; Marquis of Tweedale; Earl of Sowtherland; Earl of Lawderdale; Earl of Leven; Earl of Annandale; Earl of Ruglen; Lord Montgomry; Lord Forbess; Lord Carmichael; Lord Ruthven; Lord Advocat; Lord Justice Clerk; Lord Philliphaugh; Lord Hallcraig; Lord Anstruther; Laird of Grant; Laird of Pollock; Laird of Blackbarrony; Laird of Cessnock; Proveist of Edinburgh; Laird of Kellbwrne
1. NRS, PC2/27, 87r.
2. NRS, PC2/27, 87r.
1. NRS, PC2/27, 87r.
2. NRS, PC2/27, 87r.
D1698/2/11
D1698/2/111
Judicial Proceeding
The lybell at the instance of Alexander Blair alias Carnegie of Kinfauns and his curators for ther interests against The Laird of Phinhaven Mrs Jean Carnegy his doughter Jennet Browne his servitrix and Mr John Grub minister at Oathlaw being this day called in presence of the Lords of his majesties privie Counsell and the Laird of Kinfauns compeareing personallie as persewer with Sir James Stewart his majesties advocat Sir Patrick Home Mrs Hewgh and David Dallrimples his advocats and the haill defenders compeareing personallie (except the said Mr John Grub minister) with Sir David Thores Mr David Cuningham and Mr William Aikman advocats for the haill defenders and the said Mr John Grub being Laufullie cited oft tymes called and not compeareing The Lybell and answers therto for Phinhaven and his doughter and both pairties Lawiers being fullie heard The Saids Lords grants certificatione against the said Mr John Grub in respect of his absence and not compearance and ordains Letters of denunceatione to be direct to macers messengers at arms comanding them to pass to the mercat cross of […] and uther places neidfull and therat in his majesties name and authoritie duely Laufullie and orderly denunce the said Mr John Grub his majesties rebell and ordaine all his moveable goods and geir to be escheat and inbrought to his majesties wse for his contempt and disobedience And the saids Lords Finds that they are not competent Judges as to that pairt of the lybell anent the mariage But finds that they are competent Judges as to the rest of The lybell and admitts the Same to probatione against The Laird of Finhaven and the said Jennet Browne And the witnesses being called for and Mr John Strong Schoollmaister John Lyon of Whitewall James Milne Mr Charles Carnegie and Patrick Lyon being present and haveing made faith at the Cowncell barr The Saids Lords nominats and appoints The Earle of Leven Lord Ruthven Lord Justice Clerk and Laird of Kellburne to be a Comitie for examining of the saids wittnesses and reserves all objectiones which may be made against the wittness to be proponed and discwst befor the Comitie and grants furder dilligence by Captione untill the […] day of […] And the rest of the witness called and not compeareing aither on the lybell or on the dilligence (2except Anna Carnegie Sister to the Said Jean Carnegie She being only about twelve yeirs of age And recomends to the Comitie to examine the witnesses against Phinhaven and Jenet Broun upon the other points lybelled But not upon the forsaid mariage and appoints the Comitie to meet the morrow at ten in the foirnoon and declaires any two of them to be a Sufficient qworwm
1. NRS, PC2/27, 86v-87r.
2. Closing bracket missing.
1. NRS, PC2/27, 86v-87r.
2. Closing bracket missing.
D1698/2/10
D1698/2/101
Act
Anent the petitione given in to The Lords of his majesties privie Cownsell be David Lord Elcho for himself and Copairtners in the mater wnderwritten Shewing That ther being Severall acts of parliament of this Kingdome of Scottland appointing the Setting up and erecting manwfactories within the Same The inviteing of Strangers and giveing many incowragements to this effect Especiallie the acts Jaj vic Sixtie one, and Jaj vic and eightie one, And ther Lordships petitioner being desyreows to take the benefite of the saids acts in order to the Setting up and carying on a glass work at the weeymes in Fiffe Are for that end to agrie with certaine persones Glass makers who are Straingers and verie well knowen in the makeing of Glass wherby a considerable advantage will redownd to the natione by its giveing occasione to imploy many of its inhabitants in the work as well as the Shipping in of the export and by bringing in Considerable Soumes of money as the product of the Glass caried out besydes the benefite of the Kingdomes being served within itself they Doe in all dwety represent to ther Lordships (as being for that end fullie impowered by the saids acts of parliament) ther resolutione as above in order to obtaining ther Lordships authoritie protectione and incouragement And ther being allowed the libertie priviledge and immwnities granted by the foirsaid act of parliament infavors of manwfactories the promoters majesties and Servants therof All which the petitioners have the greater confidence to expect in regwaird they doe not pretend to any monopoly or to the exclwsione of any others from doeing ther best and Setting up many other pairt of the Kingdome they please And therfore humbly craveing to the effect eftermentioned As the said petitione bears Which petitione being this day red and considered be the saids Lords of privie Counsell They doe heirby awthorize the petitioners in Setting up the above manwfactorie of Glass at the Cove of The Weeymes And heirby declaires in favoures of the adventures promotters maisters Servants and others belonging to the Said manwfactorie That they Shall injoy all the rights priviledges and immwnities granted by the above acts in favoures of manwfactories Sicklyke and als friely in all respects as if ther were ane Speciall act of parliament made in ther favoures
1. NRS, PC2/27, 86r-86v.
1. NRS, PC2/27, 86r-86v.
D1698/2/9
D1698/2/92
Sederunt
Lord Chancellor; Marquis of Tweedale; Earl of Sutherland; Earl of Bwchan; Earl of Lauderdale; Earl of Leven; Earl of Annandale; Earl of Rwglen; Lord Montgomry; Lord Forbess; Lord Carmichael; Lord Ruthven; Lord Advocat; Lord Justice Clerk; Lord Philliphaugh; Lord Hallcraig; Lord Anstruther; Lord Rankeillor; Laird of Grant; Laird of Pollock; Laird of Blackbarrony; Laird of Stevensone; Laird of Cessnock; Proveist of Edinburgh; Laird of Kellburne; Sir Patrick Murray
1. NRS, PC2/27, 86r.
2. NRS, PC2/27, 86r.
1. NRS, PC2/27, 86r.
2. NRS, PC2/27, 86r.