Edinburgh Tuesday The 23d Jully 1695 ante meridiem

D1695/7/13

D1695/7/13¹

Decreet

Decreet John Duncan Against Lumsdean of Auchindore

Anent the bill of suspensione given in to the Lords of his majesties privy Councill at the instance of John Lumsdean of Auchindoir Mentioning That quher the petitioners are Charged be vertue of letters of horning raised at the instance of John Duncan in Marchmar Agnes Renald in Westsheills John Oliphant her husband for his intrest, To make payment to them of the soume of ane Thousand five hundred seventie five pund four shilling scots money as the pryce and value of the horss, mears, oxen Cowes, sheep and Wedders belonging to them and alse of the soume of Thrie hundreth and nyntie thrie pund sixtein shilling money forsaid, For ther damnages togither with the soume of Two Thousand merks money forsaid modified of expenses Extending the saids thrie Soumes in haill to the soume of Thrie Thousand Thrie hundreth and two punds six shilling Eight penies scots money all specified and Contained in ane Decreet obtained at ther² instance against the petitioner before the Commissionars of Justiciary of the district of Murray and that by and attour the witnesses expences togiether also with the lenth part of the said accumulat soume due to the procurator Fiscall for expences at Court as the said Decreet of the date the thrid day of May Last by past with the said Charge therwith produced would testifie and for his alledged Dissobedience intends to denunce the petitioner rebell and put him to the horn most wrongeously and unjustly Considering It is of verity Primo by the Commission of Justiciary and letters of publicatione therof, Ther is allenarly granted to the Commissioners a Criminall Jurisdiction, and they are expressly appointed to Cognosce Crymes and to take tryall of probation anent Criminalls by ane Inqueist And yet in this case the saids Commissioners did assume ane Civill Jurisdictione by Decerning the pursuer unpayment of a most exorbitant Soume of money and did take probatione against him and that without appointing any assyze and notwithstanding that this Declynator was expressly proponed, Secundo by ane express Clause in the letters of publicatione of the Commisione It is appointed that the Commissioners when they sitt in Judgment shall have the saids letters of publicatione in their Clerks hands, and Which is in place of their Commissione under the great Seall and yet in this case the Commissioner did sitt without the letters of publicatione, and this also was objected and Repelled by the saids Commissioners Tertio It was proponed against Gordonstoune one of the Commissioners that he Could not sitt, and determine in this cause quia favet Consinilem Causam he haveing a depending proces of this nature against the Laird of Grant and besides that he was sone in Law to the Lord Forbes who was pursuer, and yet both the saids defences were repelled and he did sitt as president It was also proponed that Brodie could not sitt as Judge because he was father in law to the Master of Forbes who hade intrest in the forsaid process And yet this likewayes was Repelled Quarto the saids Commissioners did take this most prepostereous method of proceiding to herby the suspender wes highly prejudged Viz Without pronunceing any interloquitor as to the relevancie of the Lybell of allowing him to propone defences, The haill witnesses Depositiones taken and he not permitted so much as to object against any of the saids witnesses and this is instantly verified by ane extract of the said Decreet therwith produced Quinto non of the witnesses ought to be received Because primo They were Socij Criminis and are under hazard if they did not depone satisfactorily in behalf of the saids pursuers But Secundo they were infameous in famia Juris They being all Declared Fugatives by a decreet of Fugitatione Which wes Likewayes instructed by another decreet therwith produced pronunced by the saids Commissioners and for the self same depredatione Tertio the petitioner did then offer to prive and can yet instruct that the saids witnesses have prejudice against In alse much that two of them hade accessione to the killing of his brother Robert Lumsdean and that they were the principall actors in this depredatione and the haill matteriall witnesses hade lifted two or thrie heirships out of the petitioners lands Sixto the saids Commissioners did most wrongeously Repell The following defences and Which were most relevant to eleid the saids grounds of accessione in alse much as he positively offered to prove that he stayed at home at his oun house all that Night and albeit the depredators did Call at his house, yet they were Challanged by him and threatned if they hade any bad designe that he would Cause them repent it and he was so suspicious, That they intended to Comitt a depredatione that he instantly dispatched of ane Servant one horss back and acquainted one of my Lord Forbes tennents and servants who Lived Closs at My Lords house that ther were Loose and brocken men in the Countrey and that therfore it was fitt that my Lord and his tennents should be one ther guard as he was haveing conveened some of his men for preventing of his oun prejudice and likwayes the said petitioners servant did acquaint some others of my Lords tennents therof and yet therafter ther haveing been a depredation Committed how soon the suspender was acquanted therof he did most frankly concurr and did goe allongst with these that were send by my Lord Forbes and did Cary a part of his oun men allongst with him for recovery of the said Spraith so that he was so farr from assisting that he did all that was in his power to stop and Imped the said depredatione septimo the forsaid decreet is intrinsically null In Respect all the witnesses are allowed to depon upon a greater number of Cattell and greater pryces then were Lybelled, and yet the Decreet is Conforme to the depositiones and not Conforme to the Lybell Octavo The Lybell Is for a Spulzie and for Which the petitioner ought to be assoylzied Because it was more then thrie years from the time of the away taking of the goods and yet he is Decerned in the Soume of Two Thousand merks of expences and thrie hundred nyntie thrie pund for damnages and this beside the witnesses expenses and the unlaw due to the Commissioners None the Lybell against the petitioner did only Conclude him ane accession and hounder out, And therfore ther Could be no process against him unless the crymes hade been Constitute against the principall actors non of quhich were so much as Called in this process And Therfore the saids letters and Charges with the haill grounds and warrands therof Ought to be simpliciter suspended etc nevertheless for the more obedience he was content to find suficient Cautione etc And Therfore humbly Craveing the saids Lords would Grant Letters for sumonding the saids John Duncan, Agnes Ronald and John Oliphant To have Compeired before the saids Lords at ane Certaine day Bringing with them the forsaid pretended Letters of horning Or others following therupon with the executiones therof and to have heard and seen the samen suspended haill effect and executione of the same upon the saids petitioner in time comeing For the reasones and Causses forsaid and others The Which bill being upon the nynth day of Jully instant Read in presence of his majesties high Commissioner and Lords of privy Councill The Sisted executione at the instance of the said John Lumsdean against the said Chargers untill the sixtein day of the said moneth and allowed the Chargers to see and answer the same, And accordingly the said John Duncan and others tennents to the Lord Forbes Gave in ther answer therto Bearing That the Lord Forbes tennents haveing sufered a depredation in the year J^aj vj^c Eightie nyne, They did pursue Certaine of the depredators and John Lumsden of Auchindore as one of ther accomplices before the Commissioners of Justiciary appointed by his majestie for Judging all in matters relateing to the robbers and depredators in the North and having obtained a decreet befor the said Comission of Justiciary Liquidating the damnage sustained Ther is a bill of suspensione presented to the Lords of his majesties privy Councill Togither with a petition a part Representing matterially the same grounds and desyreing that the suspension may be past, or a hearing allowed before the privy Councill that the suspender may have oppertunity to instruct his reasones of suspensione and vindicat his Innocence, Before the Chargers make answer to the particular reasones of the bill Ther Lordships would be pleased to be informed of the matter of fact as it is evidently instructed and made appear by the testimonies of the witnesses adduced in that process of whose Depositiones ther is ane authentick extract produced under the hand of the Clerk of the Commissione of Justiciary The said John Lumsdean being pursued as airt and part of a depredatione upon severall acts of parliament Especially the 21st act of the parliament James ist Provydeing that who ever resetts, Fortifies, Mantaines, or Gives, meat, harbour, or assistance to any theives in ther theiftuous stealling and deeds either in comeing therto, or passing therfrae or intercomunors or trysts with them for that effect within fourtie Eight hours before or after the Committing of the Cryme that the resetter fortifier or Mantainer, meat-giver or inter-Comuner with such persones shall be Called therfore Civilly or Criminally, and upon severall other acts of parliament, and it being subsumed that ther was a deprediation Comitted upon the persuars and that the said John Lumsden was actor airt and part in the said hereship and the Lybell being admitted to probation, The witnesses Deponed as Followes Viz John Dow Farquharson depones that ther was a depredatione Committed by a band of men about the number of thretie and that same night the depredatione was Committed he mett a boy who said he was sent by the said bond of men to the suspender who returned ane answer with that boy, That al things were Clear and ready, and that therafter the party went to the Suspenders house wher the partie and the saids witnesses gott meat and drink and that the suspender accompanied them till they within a Bow-shot of the place; wher the depredatione was Comitted and pointed his hand in the forenight to the place wher the depredatione should be and accordingly the hereship was lifted the same night in the place John Shaw another witnes Depones That the Company of Depredators went near the suspenders house and that the suspender came out and mett them and Caused his boy and another man give them bread Cheese and Flesh and the four quarters of a Raw Sheep and that he did Convey the party to a burne and that he sent his man along with the party and being moon light himself pointed his hand to the place and desired the party to fall on ther And that the suspender supposeing the deponent to be one of the party Desired him That if he saw any of the Lord Forbes his Naughty Watches that the party might shoot them and all this the same night that the hereship was raised, And Farder depones that he did see a letter from the suspender to the said party, Desireing them to come doune and he would give them a prey worth fourtie mens pains Duncan Catenoch a thrid witnes Depones That the Commander of that party, desired a boy from him to Carry a letter to the suspender Which being refused, The Comander sent Alexander Yooll with the letter who desired the suspender to provyde Supper for twentie four men, And Depones that the letter to the suspender was his token, and at the best of his knowledge he heard the said Yooll at his returne Say he, to witt the suspender Desired the party to come doune for he was ready for them, and depones that the same night the heirship was lifted James Mcintosh a fourth witnes Depones that the suspender came out from his oun house to meet the party that made the depredatione and brought them to a waist house, and therafter Caried them to a litle hill, and set bread and Flesh before them and gave them a dead sheep and that the suspender and his servant went within sight of the place wher the hereship was made and pointed to the party that they should goe to the place wher the hereship was made, and said to them that ther was but Litle of my Lord Forbes bounds but two Litle turnes and desireing them that they would take all away and they would gett more nixt, and if they did not their turne weell they would not be wellcome againe and that the Hereship was made the same night And William Mackpherson the nixt witnes Depones Conforme to him in omnibus, and ther are subsequent witnesses Deponing to the same purpose all which depositiones are to bee Seen in the extract therwith produced By these depositions It is Clear as any thing can be that a repredation was Comitted upon the Chargers, and that the Suspender wes not only accessory But the principall Contryver and promover of it, The Law Requyres no more but to prove the fact, and who wer accessory to it, and the quantity of the Damnadge Is to be Liquidat by the party who Sustained the damnage allenarly Conforme to the 231 act parliament 14 King James 6th Yet in this case the particular values of the hereship were proven except the value of ane inconsiderable number of Sheep which was proven by the parties oath Conforme to the said Law. The being the true case of the matter of fact and probatione The reasones of suspension shall be shortly resumed and answered in a few words, The first reasone is that he was Decerned by the Comission of Justiciary whose Jurisdictione being Criminall all actions before them are expressly ordained to pass to the knowledge of ane inquest, yet the said Comission proceided without ane assiss Restricting the Lybell to repairatione of damnage which is a Civill actione It is answered that the severall Lawes Do provyde that the said actione may be pursued Civilly or Criminally and specially the said 21 act parl: i James 6th and the 23i act parliament i4th James 6th about the midle Secundo the Commission to the Justicars under the great seall being granted expressly for the punishing of thifts and depredationes and for the letter setling peace and good order in the Highlands and the Commissioners being Impowered to proceid effectually for the ends above mentioned It is to be understood that ther power was as extensive as the Law in relatione to roberies and depredationes and Conforme to the 39 act of parliament J^aj vj^c nyntie thrie Which doeth Declair his Majesties prerogative To Grant such Commissiones and severall Clausses in the said Commissione and letters of publication relative to it Doe clearly enough Import the saids Commissioners ther Competency to determine any actione aryssing from depredation and Certainely the mayne designe of the said Commissione was to save Charge and trouble of pursueing such actiones before the privy Councill Wher the same are usuall and unquestionably Competent The second reasone of suspension is That the Lord Forbes being the principall persone pursuer, The Commission Comitted iniquity In so far as Gordonstone did proceid albeit he was the Lord Forbes the principall pursuer his sone in Law and Brodie was father in Law to the Master of Forbes and both were declyned Its answered first Gordonstounes relatione is extinct by the decease of the Lord Forbesses daughter and Brodie the Master of Forbes father in Law was neither in Blood nor allyance to the said Lord Forbes Secundo the Lord Forbes hade no intrest in the process But did only give Countenance to the tennents and Caused his name to be Judicially delate out of the sumonds as appears by the Decreet and process, and the Lord Forbes has no intrest directly or indirectly in the matter The thrid reasone is that the Commisione of Justiciary was not in the Clerks hands Its answered the Comission was read at the Constitution of the Judicatory and ther is nether Law nor reasone to produce the Commissione at every dyet, yet the letters of publication of the Commission were in the Clerks hands as appears by ane instrument taken therupon The Fourth reason is that the Commission to proceided to examine witnesses before determining the relevancie Its answers this pretence Is redacqued by the Decreet bearing ane interloquitor sustaining the relevancy, and admitting the Lybell to probation The Fifth reasone Is that the witnesses were socij Criminis, second that they were formerly Declared Fugatives and so infamous In famia Juris Thridly That two of the witnesses hade prejudice at the defender In so farr as they were accessory to the killing of his brother, answered primo The depredation Lybelled Having been Comitted in the night time socij Criminis were allwayes habile witnesses for Condemning tho not for absolveing Secundo That it is Calumnious any of the witnesses were denunced fugitives and the witnesses alledged so denounced is not Condescended on Beside that the principall Decreet of fugitatione alledged upon is therwith produced Importing nothing but a decreet in absence for a liquid soume besides that the only persones in that Lybell made use of as witnesses in this Actione were only two John Shaw in Dalavert and John Dow Farquhersone who were expressly past from by the said Decreet as is evident by the Last sheet therof marked with a Cross on the margine Beside that the Lybell was also proven by severall other famous witnesses Tertio that the witnesses purged themselves of all prejudice as is evident by ther depositiones therwith produced, nor was it Relevant for the defender to inferr prejudice against them from alleged quarrells with his freinds Beside that non of these objectiones Could be instantly verified nor indeed were they ever so much as proponed upon The sixth reason is that the suspender did advertise the Countrey and particularly the Lord Forbes his tennents when the spraith was uplifted and that he followed the depredators for recovering the same Which was Repelled Its answered the alledgance Could not be sustained Because It was Lybelled and proven that he was airt and part in assisting And such sham advertisments, and feigned attempts to rescue the Airship could not exculpat nor paliat the guilt, And Wheras it is pretended That the Soumes Decerned are beyond the Lybell, The Charger oppones his Lybell and Craves no more, The last reasone in the bill is That action was sustained against the suspender as airt and part without Calling the principall actors, and farder the suspender was not only Decerned for the value of the goods bot likeways for towards four hundred pund of damnadge and two Thousand merks of expences of the witnesses Its answered first Alexander Grant one of the principall parties is Decerned as weell as the suspender either principall or accessory may be Conjunctly or severally Secundo, as to what is payable to the phisicall and witnesses both these are suitable to the Commissione and the Chargers are nowayes concerned in them Tertio as to the expenses of plea all the soumes Decerned and more hath been expended in two former processes before the Justiciary besides the process on which the decreet followed and not ther is a necessity of a fourth process befor the Councill Quarto as to the damnages³ The⁴ Chargers Craves no violent profitts but having wanted ther goods six years since the depredation The Judges Conceived it reasonable that they should have moderate damnages Less then the annualrent of the true value In Respect quherof it was Confidently expected, That his majesties high Commissioner and the Lords of privy Councill will have a tender regaird to the Commission of Justiciary whose sentance Is quarelled and will Consider the intrest of the nation, Which requyres that such barbarities should be represt, and his majesties faithfull and Loyall subjects have suffered griviously by these robers and depredators Cheifly upon the account of their Airly and faithfull adherence to his majesties service, and that Flagitious and wicked persones in the northern shires have taken the pretence of Joyning with his Majesties enemies more out of Designe to rob ther Nighbours then affection to any government, and that the suspender being a persone of very bad fame and reputatione, The least favor to him would extreamly encourage such wicked practisses to the great prejudice of his Majesties Loyall and peacable subjects, and Therfore that the bill of suspension will be utterly rejected as the answers bears⁵
The saids Lords of his Majesties privy Councill Having this day Considered the said bill of Suspensione at the instance of the said John Lumsdean against the said John Duncan Agnes Ronald, and John Oliphant her husband with the said answers made therto for the saids Chargers They heirby Sustain the reasones of suspensione to restrict the soumes in the Decreet Charged or decerned for either as damnadges or expenses or to the procurator phiscall or witnesses to the soume of ane Thousand merks scots And Finds the letters orderly proceided at the Chargers instance against the suspender for the soume of ane Thousand five hundred seventy five punds four shilling scots money Decerned for as the pryce of the horss Mears oxen Cowes and other goods mentioned in the Decreet Charged on And Ordains the same to be put to farder executione against the suspender ay and whill he make payment to the saids Chargers of the soume forsaid Decerned for as the pryce of the saids goods and of the said soume of ane Thousand merks to which the soumes decerned Decerned for either as damnages or expences or to the procurator phiscall or witnesses is restricted as said is and suspends the letters pro reliquo