Edinburgh the 30th November 1704
D1704/11/13
D1704/11/13
Decreet
Decreit absolvitor John Duff and others against Davidsone of Newtoune
Anent the principall lybell or letters of Complaint raised and persewed befor the Lords of her Majesties privie Councill at the instance of Alexander Davidsone younger of Newtoun now of Geight, with concourse of Sir James Stewart Her Majesties advocat for her Highness interest, Makeing Mention that where by the Lawes of this and all other well governed Realms the publict peace ought to be be observed and all persons secure under the faith therof and protection of the Government, and that for any to brake the same by attacking and assaulting or injuring any other in their person or goods specially when done under a pretence and collour of friendship and a pretext of Law and legall dilligence and also on the Lords day when all execution even through legall ought to cease Is a high Cryme and ought to be Severly punished and the persone injured aught also to be restored and reponed againest all the effects and consequences therof Nevertheless It is of verity that James Hamilton of Cupbardie Mr William Gordon in Towie Robert Gordon his Brother […] Bruce and […] their servants and accomplices and John Duff messenger and […] Servitor to the Said John Duff Shaking off all regaird to our authority and Laws coming upon the Sixteenth of September last being Saturday at ten acloack at night to the house of Geicht, as if they had been friends and in a peaceable manner, were ther kyndlie entertained at Supper But after they had Stayed till two acloack on Sunday morning being the seventeenth of the said moneth and would needs be gone the Complainer did in Civility convoy them to their horses and than and ther the said James Hamiltoun of Cupbardie with Duff the messenger and other persons abovenamed Drew and cockt their pistolls and the messenger told Geicht that he was his prisoner at Patrick Gordons instance, Wherupon they all laid hold on him and took his sword from him braking it in the scabard and beat him to the great effusion of his bloud and the said Cupbardie threatned to Shoot on of Geichts Servants who offered to rescue him from their violence, and the saids persons having taken Geicht thus illegally on the Lords Day and violently and treacherously in manner forsaid They carried him as a prisoner all the Lords Day without regaird to the Divyne Service from place to place, and the said Cupbardie being Factor for the estate of Towie Did unlawfully Convocat the Tennents of Towie in arm’s to Destroy the Complainer, and thus carried him from one ale house to another Drinking Still on his Charges They keept him untill he gott a friend to pay the Debt in their pretended Caption, But when the Debt in the Caption was payed the said Messenger Duff would not pairt with the Complainer untill he extorted from him ane accepted bill of twentie pounds for his own Charges and when this was done the said Cupbardie told the Complainer (through he had not any ground or warrant for it) that he was Still his prisoner and Swore many bloody oaths he would not pairt with him but carry him wher no friend Should ever hear of him, Unless he would grant a bond of the like soume to Major Generall Buchan that within fourtein dayes he Should Registrat his Double of ane Contract of marriage and deliver ane Extract therof to the major Generall, Wherby the Complainer being Surprized, and Seeing a great many armed men upon the adjacent raising grounds ready to assist Cupbardie; and the Major Generall telling him that if he refused what was Demanded worse things might fall out, the Complainer and his Uncle Carnbryie were therby by violence and fear forced to grant the saids two bonds Lykeas all the tyme the Complainer was kept by them in Custody as a prisoner, They guarded him night and day with bended pistolls, By all which it is evident the said Hamiltoune of Cupbardie Mr William Gordon in Towie and Robert Gordon his Brother with the other persons abovenamed and Duff the Messenger are all and each of them Guiltie airt and pairt of a violent breach of the peace and most attrocious ryot and oppression and of having Committed privatam Carcerem, and the other violences and injuries abovementioned Which being proven befor the Lords of our privie Councill They ought not only to be Decerned in the Soume of Three thousand punds Scots of Damnages and expenses and ordained to redeliver the forsaid accepted bill and two bonds wrongously extorted as said is to be Cancelled, But also they ought to be farder punished in their persons and goods for the Crymes abovementioned to the example and terror of others to Committ the like in tyme coming, And anent the Chairge given to the Said Defender to have Compeired personally befor the Saids Lords at ane certain day bygone to have answered to the points of the said Complaint, and to have heard and Seen Such order and course taken theranent as the said Lords Should think fitt with certification as in the principall lybell or letters of complaint at more lenth is contained, And alse Anent the Lybell of Reconvention purchast and raised befor the saids Lords of Her Majesties privie Councill at the instance of the saids James Hamiltoun of Cupbairdie and John Duff messenger with concourse of Sir James Stewart her Majesties Advocat for her Highness interest Making mention that where by the Laws of this and all well governed Nations the deforcing or attempting to deforce Messengers in the lawfull execution of their office, and yet Notwithstanding therof the traduceing the said Messenger and his assistants for doing their Duty by most calumnious Complaints befor the Lords of our privie Councill, as also the withdrawing and abstracting of wryts of greatest importance or being airt and pairt therof against faith and trust given to the Contrary, wherupon the intruster is Subjected to personall execution and many other hardships, and likewayes the defaming of her Majesties Leidges who are of unquestionable reputation with the odious Crymes of oppression and abuse of the Lords day, and the putting of them to unnecessary trouble and expenses theranent are Crimes of a high nature and Severly punishable, and the persons so injured ought to be redressed, Nevertheless It is of verity that Alexander Davidsone younger of Newtoun and now of Geicht is guilty of the forsaid Delinquencies insofarr as that the Complainer the said John Duff haveing upon the Sixteenth of September last being Saturday execute or offered to execute letters of Caption at the instance of Patrick Gordon merchant in Aberdein, in her Majesties name againest the said Alexander Davidsone He in Confidence of being at his own house of Gicht Did by himselfe with drawen Sword, and by his Servants Deforce or offer to Deforce this lawfull authoritie with violence and resistance as also the said Alexander Davidsone has taken the confidence to raise a Councill Complaint not only againest the said messenger but also against the Complainer the said James Hamiltoun of Copbairdie, which is most groundless and false in all the articles therof and which calumnie and Defamation is the more aggravat in regaird of the particulars following, Viz that the said Complainer hes been most notoriously abused by the said Alexander Davidsone his Father and others for his behove (with whom he is airt and pairt) insofarr as ther being a Contract of marriage betwixt the Said Alexander and the Heretrix of Gicht in which Alexander and his Father were bound to releive (upon a profitable translation) the old Lady Geicht, off the Debts of the family the Comapliner the said Hamiltoun of Cowbardie borroued the old Ladies Double of that Contract, and under the greatest appearance of friendship did Lend the Same to the said Alexander or his Father for his behove, Wherupon the old Ladie and Major Generall Buchan her husband being Distressed for many Debts of the family by Such Creditors as the said Alexander and his Father did most inhumanly hund out while they retained the Contract which obliedged them in relief of the Same as aforsaid having pursued the Complainer in ane Exhibition and obtained two Decreets in foro against the Complainer after he had made many instances to the said Alexander and his Father for freeing him by producing the forsaid Contract they most treacherously and ungratefully did keep the same up both from the Complainer and from the Major Generall and his Lady who prosecute the exhibition till at last the Complainer being taken with Caption and in his way to prison having called at the said Alexanders house on the Sixteenth day of September last (the Complainer being taken with Caption) in order to his make his last intreatie of his Liberating the Complainer by Delivering up the forsaid Contract and the Messenger who had the Complainer in Custody taking the opportunity of executing the forsaid Caption with which he was intrusted againest the said Alexander Davidsone at that tyme the said Alexander does most causelessly and absurdly make the Complainer a pairtie in his Councill complaint tho he had the best ground to be the first Complainer, and wes all along a prisoner himselfe and therfor the Complainer ought not only to be assolzied from the forsaid malicious complaint befor the Lords of our privie Councill But lykewayes the said Alexander Davidsone ought to be punished to the terror of others to Committ the like in tyme coming as also Alexander Davidsone Decerned in Three thousand merks for the Complainers Damnages and expenses, and Seeing he has of Sett purpose cited severall persons particularlie Mr William Gordon in Towie Robert Gordon his Brother […] Bruce as pretended accomlpices of Design to exclude them from being witnesses for the Complainers tho they be at most the messengers assistants in execution of his office and consequently habill witnesses of his being deforced. And anent with certification as in the said lybell of Reconvention at more length is contained, Which two Lybells being upon the twentie third of november instance called in presence of the saids Lords of her Majesties privie Councill and the said Alexander Davidsone younger of Newtoune of now of Geicht persuar in the principall Lybell and Defender in the Reconvention Compearing personally at the Barr with Sir David Cunninghame Sir John Ferguson Mr William Black Mr James Stewart Mr Thomas Hope Mr George and Mr James Dalrymples his Advocats and the saids Defenders in the principall lybell two wherof are persuars in the Reconvention COmpearing also personally at the Barr with Mr David Forbes Mr Mungo Carnagie Mr Francis Grant and Master James Grahame their advocats the advocats for the Defenders in the principall cause Gave in the answers following to the principall Lybell viz: The Lybell raised by Geicht against Coubairdie and Master Duff being So extravagantly groundless that on the contrary they had the best reason to have been the first Complainers, it may be requisite to premise some view of the true matter of fact, The estate of Geicht was formerly in the name of Gordon, and the old Lady with assistance of friends particularly of Cowbairdie having retreived it from Sinking Burdens Mr Davidson (whose Father is rich) suited in marriage the heirs of Gight, and (in the contract of marriage) upon the old Ladies making over her rights to her Daughter and her appearand husband he and his Father become obliedged to relieve the old Lady of the Debts which She had undertaken for the family, when the marriage had once followed Mr Davidsone now of Gicht and his Father forget to pay the Debts that the old Lady might be Stressed for them, and least they Should be charged on the Contract for her relief they (under pretence of friendship and Communing) prevail with Cowbairdie to gett from him the old Ladies Double of the Contract which he had borrowed from her upon receipt, and once having gott it would never restore it, notwtisthanding of all the argyments of intreaty and honour for doing that justice, In the mean tyme the old Lady and Major Generall Buchan her husband (being Stressed for great Debts of the family and wanting to Contract which was the mean of their Relief) obtain two Decreits of Exhibition of this Contract in foro againest Cowbairdie on the last wherof he was taken by Caption be Mr Duff messenger in September last while Cowbairdie was in the Messengers hands at Milton of Fyvie in his way to prison Gight (whose house is only some miles distant from that place) comes to them and pretending the greatest Concern imaginable that Cowbairdie Should Suffer upon his account, prevailes with Mr Duff that he Should go and interceed with the old Lady and her Husband (who also were not far from that place) to give a fortnights forbearance to Cowbairdie upon the said Gights being obliedged under whatever penalty to Registrat the Contract in the mean tyme or otherwayes to present the prisoner, Mr Duff leaving Cowbairdie on parroll of honour not to escape goes and obtains the old Ladies consent to which her husband agreed, But on his return to Miltoun of Fyvie, Gight revokes all that he had promised when he found that the proposall had been accorded to, In the mean tyme Patrik Gordon a Creditor of the family, and nephew to Cowbairdie having accidentally arrived at that place and fearing that Gight who would not perform for Cowbairdie what was So easily in his power, would much less pay ane ordinary Debt of the family he thus abstracting the Contract which obliedged him therunto, as also ther being a rumour that the forsaid Contract was Destroyed the said Patrick Gordon being Creditor of the family and having obtained Decreit had a Caption againest Gight for about one hunder pound Sterling, calls Mr Duff the messenger aside puts the Caption in his hand, and orders him to doe his Duty in putting the Same in execution least ther might not be Such opportunitie therafter for Gight had formerlie fled into England for eviting these Debts, that the old Ladie and her husband might be forced to pay them, Mr Duff the messenger could not refuse master Gordons imployment but in the mean tyme ther is a message as from the young Lady Gight that if the Company would come with her husband to the house, the whole matter might be accomodat upon which Mr Duff ventured to carrie Cowbairdie his prisoner thither upon Saturdayes afternoone, but when come ther Gight would give nothing except an appearance of a kindly intertainment, wherupon Gight going out with them to horse, Mr Duff the messenger (fearing that he might be lyable for the Debt if he did not take Gight who might again runn into England) in her Majesties name executs Mr Gordons Caption against Gight, who offered to resist by drawing his Sword and calling to his Servants, But that Deforcement becoming ineffectuall the two prisoners are carried back to Miltoun of Fyvie that Night, That Mr Gordons Caption was at first execute upon Saturday, and did not at all incroach upon the Sabbath day, being at most, but about ten of the Cloack can be proven by witnesses beyond exception, Which Gight forseeing he has for Smotherin the truth if it were possible by his packt witnesses; pretended to Cite as pairties the Defenders most necessary witnesses, which abuse no doubt the Honorable Councill will redress, However the next day being the Sabbath, and that place of Miltoune of Fivy being within Gights own lands, wher the Tennents upon pretence of going to Church might conveen, and make a Disturbance for their Masters Liberation, Mr Duff the messenger did prudently, and necessarly go forward with his prisoners prisoners to the next Inns which was not far off, allowing to Gight to wear a Sword Still after the night of his first Capture, and ther they rested till the Sabbath was over, at Gights intreatie, not to be carried to prison he was continued for Munday and Tuesday that he might send for his friends, who having come to Towie (the place of tryst) they offer a totall accommodation, not only as to Mr Gordons Debt, but lykewise for Cowbairdies Releasment that being a fitt opportunitie for effectuating what Gights honour so much stood bound for, besides his legall obliedgment especially such persons of honour being present as the Earle of Aberdeen and his son my Lord Haddo who did interpose wherupon its agreed that the Earle of Abredein Should pay Mr Gordons Debt, and that George Davidsone of Carnbroge Gights uncle Should be Cautioner, that the Contract Should be registrat and the old Lady Gight with her Husbands Discharge of the exhibition should be obtained to Cowbairdie under Such penalties as were competent wher ther had been so manie former Disappointments, as also Gight did undertake the payment of the Missengers Dues both for the Caption againest himself and the other which had been execute againest himself and the other which had been execute againest Cowbairdie on his Default and account upon which both prisoners were dismissed, and Gight therafter homologat the agreement, by causing actually registrat the Contract and offer payment of the expensses, But upon inspection of the principall Contract in the Register, it being discovered that ther was a most criminall vitiation made therin Gight and his Fathers bethink themselves how to ballance or Drown the clamour heirof, and the method they fall upon is, That they raise a Councill complaint lybelling on unwarrantable executing of a Caption upon the Sabbath morning, a riotous convocation of the Leiges and extortion of Bonds and Concluding that these Should be given back and the actors punished especially with paying of a vast damnages and lest any might be left to witnes the falsehood of these stories, Gight the pursuer calls as pairties not only the Messengers assistants, which he ordinarly carries with him, but likewise the other Gentlemen who were were accidentally present, yea, even Mr William Gordon in Towie, tho he was imployed as a Communer for Gight himselfe against which Cowbairdie and Mr Duff having raised a Reconvention on Deforcement withdrawing of wryts oppression and treachery, It is answered for the Defenders to the pursuers libell, that the Same is denyed as most calumnious in all the Circumstances and qualifications therof that have the least shaddow of relevancie in them the true matter of fact being as is above represented, viz: That the first capture was not upon the Sabbath day, which as it is not presumed, so that necessary witnesses being first past from, as pairties, or cleared, it is offered to be proven to have been upon Saturday, That nothing followed therafter, except what was necessary to repell the pursuers Deforcement, or requisit to secure him against making escape, That as a Messenger dared not refuse to do his Duty, when any of the Leiges charged him with a Caption, so it is most false that Gight was Detained prisoner after the money was payed, yea he was totallie dismissed before a farthing of it was payed, which was not till some dayes therafter, That ther was no extortion in obtaining the forsaids obliegements, but on the contrary as they were congruous and just in themselves, So they were proposed by the pursuer and his friends and have been homologat after his freedome as said is, which matter is depending befor the Lords of Session, that the Defenders are so farr from being Injurers that they are the only persons injured in the caise, For Cowbairdie by all the rules of honour honesty and Law ought not to have been betrayed to trouble, Expences of plea and prison, upon Gights account when Gight putting his hand in his pocket to give out the Contract (which was most unjustly retained againest faith and right given) would have put an end to the business and Mr Duff notwithstanding of his pains in procuring the old Ladies consent to Gights own overture, and his hazard in venturing to Gights own house ere the accomodation should quite break up, and his lenity and discretion therafter intreating Gight as a Gentleman and indulging him Severall dayes from being carried to prison in presentia amicorum for ending the bussiness, Is ill rewarded by Defamation Diversion and Charges of this most groundless and absurd pursuit, and the advocats for the forsaid Alexander Davidsone younger of Newtoune now of Gight pursuer in the principall lybell and Defender in the Reconvention Gave in the answers following to the forsaids letters of reconvention, Bearing the said James Hamiltone and John Duff with others their accomplices being conveened before the privy Councill, at the instance of the said Alexander Davidsone for a most atrocious Ryot and manifest oppression upon the account of assaulting and attacking the said Alexander Davidsone in his house of Gight under Cloud and Silence of night by way of hamesucken, and putting a pretended Caption in execution againest him on the Lords day, and carrying him from one place to another and detaining him as in private prison and extorting from him an accepted precept for twentie peices to the Messenger after the Debt was paid, as also extorting from him bonds for great Sums of money in relation to other things that had no concern with the Caption, the said James Hamiltoun and John Duff has raised a most Groundless and calumnious Reconvention, and first wheras it is alleadged that the said John Duff having apprehended the said Alexander Davidsone with Caption at the instance of Patrick Gordon merchant in Aberdeen, upon Saturday the Sixteenth of September last, at the said Alexander Davidsons house of Gight, he, by himself with drawen sword, and his servants did deforce or offer to deforce the Messenger, It is answered primo, That as it is false in fact, that the said Alexander Davidsone did deforce the messenger with a drawn Sword, So that it is nowayes Competent, nor can the said Defence be admitted being Contrar to the said Alexander Davidsons Lybell which bears that the said James Hamiltoun and Duff the messenger having come to his house about ten of the Cloack at Night, they were most kyndly entertained at Supper albeit they did most barbarously and treacherously abuse and maletreat the said Alexander Davidsone in his house in manner mentioned in his own Lybell, contrair to all the rules of friendship and hospitality, Secundo if the said Alexander Davidson had drawn his Sword and offered any violence to the messenger as he did not, yet he might lawfullie have done it in his own Defence, Seeing it is positively offered to be proven, as is mentioned in his Lybell that Duff the Messenger did not offer to put the Caption in execution till two of the cloack in the Sunday morning at which tyme it was most unjust and unlawfull for him to have put any legall diligence in execution, and consequently he might be lawfullie resisted, and the said Alexander Davidson might justly have opposed the Messengers illegall violence by force, Tertio that alternative, that the said Alexander Davidson and his servants did offer to deforce the messenger is no wayes relevant for a pretended offer to do a crime is no cryme when the offer did not take effect, Secundo wheras it was aleladged that the said Alexander Davidsone had raised a Councill complaint againest the said James Hamilton and Duff the Messenger which is Said to be groundless and false in all its articles, It was answered that this being but a deniall of Alexander Davidsons lybell, and nothing againest the Relevancy the lybell ought to be admitted to his probation, and he positivly offered to prove the Same, Tertio wheras it was alleadged as an aggravation that ther being a Contract of marriage betwixt the said Alexander Davidson and the heretrix of Gight by which he and his Father were obliedged to releive the old Lady Gight of the Debts of the family the said James Hamilton having borrowed the Double of that Contract from the old Lady, and lent it to the said Alexander Davidsone or his Father, wherupon the old Lady and Major Generall Buchan her Husband were distressed for many Debts of the family, and they having obtained Decreit againest the Said James Hamilton for exhibiting and delivering of the Said Contract, and yet notwithstanding the Said Alexander Davidson doth Still retain the Samen, and at last the said James Hamilton being taken with Caption and in his way to prison having called at the said Alexander Davidsone house upon the Sixteenth of December last, and Duff the Messenger taking the opportunity to execute ane other Caption againest the Said Alexander Davidson he the Said Alexander did conveen the Said James Hamiltoun in the Councill Complaint againest the Messenger and others, It was answered that the said pretended aggravation was altogether groundless, for First It was most calumnious that either the said Alexander Davidsone or his Father did borrow the Said Contract from James Hamiltown, Secundo albeit the Said Alexander Davidson had the Said Contract in his Custodie, and that the old Lady Gight had obtained a Decreit againest James Hamiltoun for exhibition and delivery therof yet neither Alexander Davidson nor his Father were any wayes concerned in that matter, Tertio as to what was lybelled in relation to the said Alexander Davidson or his Father having of the Contract and ther not giving it up to the said James Hamilton It was properly a matter of civill right, and did not inferr any cryme and so could not be Sustained So much as ane aggravation of the said James Hamilton and Duff the messengers groundless Complaint Quarto what was mentioned in the said James Hamilton and Duffs Lybell in Relation to the Said Contract is altogether extrinsick to said Alexander Davidsons complaint againest them, which is for a manifest ryot, violence and oppression for albeit the said Alexander Davidson had keeped up the said Contract, yet that was no ground for the said James Hamilton, but a great aggravation of their cryme to have concurred with Duff the Messenger, to put the Caption for a Debt in execution at an unlawfull tyme and to beat and abuse the said Alexander Davidson in his own house, which was his Sanctuary, especially after they had been so civilly and kyndly intertained by him the night before, far less that he Should have concurred with the Messenger to extort from the Said Alexander an accepted precept to the Messenger, upon the pretences of expences after the Debt was payed, and by force and violence to have extorted bonds for exhibiting and delivery of the said Contract upon great penalties ther being no Sentences or Dilligences againest him for that effect, and the said Mr William Gordon of Towie Robert Gordon his Brother and […] Bruce are justly conveened as pairties who not only concurred as Accomplices with the Said James Hamilton and Duff, but also were the principall actors who attacked the said Alexander Davidson with cocked pistolls, and laid violent hands on him and beat him to the effusion of his blood, brook his sword in the scabbert and threatned to tread him under their feet, so that the said James Hamilton and Duff the messenger and ther saids accomplices being guilty of a most attrocious ryot, violence and oppression committed by them upon the person of the said Alexander Davidson, and art and part of the Samen in manner lybelled the said Alexander Davidsons Complaint ought to be admitted to probation, and he assoilzied from the said James Hamilton and Duff the messengers groundless and calumnious complaint, as the said answers bears, And the forsaid principall Lybell with the answers made therto by the said James Hamilton of Cowbairdie and John Duff messenger with the forsaid Lybell of Reconvention and answers made therto by the said Alexander Davidson being all read in presence of the saids Lords of her Majesties privie Councill, and both pairties Lawiers heard at the Barr and removed, The Saids Lords of her Majesties privie Councill by their Interloquitor the twentie third day of november instant admitted the Lybells to probation, and the witnesses for both pairties being called Such of them as are marked in the roll present Compeiring at the Barr Did make faith, The Councill nominats and appoints the Earles of Lauderdale Leven and Northesk Collingtoun and the Lord provost of Edinburgh to be a Committie to examine the witnesses, and Recommends to the said Committy to meet to morrow morning at ten acloack in the fornoon and Declares any three a quorum and to report, and grants to both pairties Letters of Second dilligence by Caption againest the absent witnesses as marked in the roll and not Compeiring, and assignes the […] day of […] next to come for that effect, But in respect the pursuer in the principall Lybell who is Defender in the Reconvention hes Cited the persons following as pairties in his principall Lybell, who are cited as witnesses for the saids pursuars in the Reconvention therby to prevent ther being adduced as necessary witnesses therin viz Master William Gordon in Towie Mr Francis Bruce merchant in Edinburgh Robert Gordon in Kinghorne John Broun his Servant Robert Watt Servitor to Patrick Gordon of Samphfoord Merchant in Aberdein Andrew Muir and Patrick Wilsone Servitors to the said John Duff, Therfore the saids Lords of her Majesties privie Councill Doe heirby Recommend to the Said Committy to receive the oaths and testimonies of Such witnesses as the pursuer in the principall Lybell Shall condescend on for proving the fornamed persons or any of them pairties in his principall lybell, and in caice no probation or evidence appear againest them or any of them to be pairtties, that then the said Committy receive them as witnesses for the pursuars in the Reconvention who are Defenders in the principall Lybell, and purge them of partiall Councill and malice and ordains the witnesses cited for the pursuar in the principall lybell to be at Liberty and have their full freedome, and the said Committie or their quorum having mett upon the twentie fourth day of November instant and having called in one of Gights Witnesses who being Solemnlie Sworn purged of partiall Councill and interrogat Deponed as his Deposition extant in proces bears. Therafter ther being objections offered by the Defenders in the principall lybell againest Some others of Gights witnesses which the Committie referred to the Councill, Ther was a memoriall given in and presented to the Lords of her Majesties privie Councill by the said Alexander Davidson younger of Newtoun now of Gight, Narrating as follow’s in the proces depending befor the privie Councill att the instance of Alexander Davidson younger of Newyoun now of Gight againest the said James Hamilton John Duff Mr William and Robert Gordons […] Bruce and others Their Lordships appoynted a Committie to examine the witnesses upon the lybell, and in caise by the probation the Committie Should find, that nothing was proven againest the said Mr William and Robert Gordons or […] Bruce that than the Committie Should admitt them as witnesses in the Reconvention, The Committie having mett, and the witnesses being called in, it was objected that […] Gights Gardner and […] his servants could not be admitted as witnesses in regard ther was not a penurie of witnesses, ther being many more who could prove the Lybell, that were present, and more habite witnesses and it being answered, that the Cryme being committed at Gights house in the Dead and Silence of the Night, ther is none that could be witnesses, but Such as lived at the Gates, or were his Domesticks, The Committie inclined to examine the witnesses, But the Defenders were So tenacious, as to plead that the Committie would report the objection to the Councill, which they acquiesced to do next Councill day, Their Lordships are therfor humbly desired to Consider that its impossible for Gight to prove his Lybell, but by those verie persons who live at his Gates, or in his house, ther being none else present at his maletreatment but the Defenders themselves, who are conveened by him, and as to the pretence that ther are severall other witnesses cited, these witnesses are such who can only prove the detaining of Gight prisoner, and carrying of him from place to place on the Sabbath day, and the other articles lybelled, but were not present when he was first apprehended, Especially Seeing that it is a certain rule in Law, that any mans Servants may be admitted witnesses in Domestick Crimes, in that case they being necessary witnesses, as for instance, if any man Should be assasinat in his house, the only proper witnesses that could prove this are his Servants, and in the case of hamsucken, when any man is assaulted in his house under cloud and silence of Night as this was, it is the constant practice both befor the Councill and justice Court, to allow Servants to be admitted witnesses both men and women, because in that case they are absolutly necessary witnesses, and the particulars lybelled in this Complaint, upon which the Crime principally depends, was the assaulting and attacking Gight at his house and Gate under cloud and silence of night, as the said Memoriall bears, Lykeas ther was objections given in by the said James Hamilton of Cowbairdie and John Duff, againest Richard Melvill William Henrie, and Jannet Black witnesses offered by Alexander Davidson of Gight in his proces befor the privie Councill, againest them, Representing as follows, The honorable Lords might well remember that it was plead for Cowbairdie and Mr Duff who are the persons only aimed at by the pursuer, that he had industriously cited all the Gentelmen and their Servants, who were accidentally ther as pairties therby to deprive the Saids Cowbairdie and Mr Duff of the benefite of their Depositions in their Exculpation, and this contrivance did plainly appear by their Conduct before the Comity for when Gights oath of Calumnie was Demanded by the forsaid Gentlemens Procurators the Parties themselves also Urging it, he did absolutly Shift and Declyne to give it alleading that it was not Compitent to crave his oath of Calumnie their, it not haveing been craved at the Councill and that the Councill only Could ordain him to Give his oath of Calumnie although it be Against all reason that any person Should pretend to prove a crime against his Nighbour without purging himself of Calumnie and the Law allows of that oath In ay pairt of the proces the nixt Stept he makes he offers his own Meniall and Domestick servants as witnesses, againest whom it was objected, that they being Miniall servants, the Law did reprobate their Testimonies, and being replyed, that servants are admitted in Domestick Crimes, which was the pursuars case, The pretended illegall Caption being in his own house under Cloud of night, and therfor could only be proven by his servants and family, To which it was answered that the priviledge of receiving unhabill witnesses Such as Servants in Domestick Crimes, is only admitted in the case when ther is no other habill and unsuspect witnesses present, than all the men servants he offers so that he can never be allowed to prove an pretended Crime againest Gentlemen, alleadged committed on him at his own gate, by his Domesticks, when the said Crime was alleadged by himselfe to be committed on him at his own gate in the Sight of five habil and indifferent witnesses, three of whom viz Adam Panton in Little Gight […] Cassie in Stonhouse of Gight, and […] Davidsone of Cairnbrogie Uncle to Gight, are witnesses beyond exception and ther being on the other hand five more cited by Cowbairdie in his exculpation, besides Mr Duffs assistance, viz Mr William Gordon in Towie, Robert Gordon in Kinghorny Francis Bruce Merchant in Edinburgh, Robert Watt, Servitor to Patrick Gordon of Sandfoord, and John Broun Servitor to the above designed Robert Gordon all persons present at the pretended ryot, besides Mr Duff and his ordinary assistants and witnesses all which persons of integrity and knowen Reputation are cited by the pursuar as pairties and accessaries to the pretended ryot, although they had no manner of accession therto, on purpose to preclude the Defenders from the benefite of their Depositions, and would prove the forsaid pretended accession by Domesticks, which the Law does Still reprobate, except in the caise wher ther are no other witnesses present, This was not a Domestick Crime that was lybelled, but the question was anent the legallity of the executing of the Caption in which the messenger and his witnesses in the execution are testes instrumentury et necessary, and therfor they can never be casten as pairtties and the pursuars design of making the whole persons present who are cited for the Defender pairties, except his own Uncle, and his obstinatly refusing at the Committie, to allow any of the unsuspect and habile witnesses to Depone and Shifting and refusing to purge himself of Calumnies is so evident a Contrivance that it is confidently hoped that the Lords of Councill will never allow any of his Domesticks to Depone, in respect ther are four or five unsuspect habill witnesses present at the pretended ryot, and who are cited by the pursuar himselfe, as the saids objections also bears which memoriall and objections being upon the twentie eight day of november instant read in presence of the Lords of her Majesties privie Councill, and they having considered the same The Saids Lords appoynted and ordained the said Alexander Davidson of Newtoun to give his oath of Calumnie in the said proces befor the said Committie and therafter Recommends to the Said Committie formerly appoynted therin to examine Adam Panton in Little Gight, and […] Davidson in Carnbrogie witnesses for the said Davidson of Gight, and in case it appear by ther oaths and testimonies that they were present all the tyme lybelled than the saids Lords have found and heirby finds that ther is no penury of witnesses, and that Gights miniall and Domestick servants ought not to be received as witnesses for him in the forsaid proces, But in caice it do not appear, appoynts his Domestick Servants to be received and Recommends to the said Committie to meet to morrow at eleven acloack in the fornoon and to report, and the said Committie or their quorum having mett upon the twentie ninth of november instant, Did first of all in obedience to the forsaid Interloquitor take the said Alexander Davidsone of Gight his oath of Calumnie, as the Samen extant in proces bears. And therafter called for another of Gights witnesses, who being solemnlie sworn purged of partiall Councill and malice Deponed as his Deposition extant in proces also bears, Therafter the said Committie conforme to the two severall remitts to them theranent having examined Robert Mitchell in Ellon and Adam Panton in Little Gight and have considered their Depositions they are of opinion that the saids two witnesses proved nothing against Mr William Gordon in Towie Francis Bruce son to the Deceast Alexander Bruce in Birne, and the rest of the Defenders who are cited as pairties in the principall lybell and witnesses in the Reconvention to make them pairties (except only against the person aftermentioned) and that the said persons cited as pairties in the principall lybell ought to be received as witnesses in the Reconvention for Cowbairdie and Mr Duff, except only that the saids two witnesses prove something againest Robert Gordon Brother to the said Master William, But how far that can make him a pairtie the Committy Remitts the Consideration therof to the Councill and appoynts Cowbairdie and John Duffs witnesses to be receieved the morrow att ten a Cloack in the fornoon and are of opinion that ther is no penury of witnsses, and accordingly the Said Committie having mett this Day and called for severall of Cowbairdies and John Duffs witnesses, who Compeared and being solemnlie sworn purged of partiall Councill and interrogat upon their great oaths Deponed as their Depositions extant in proces lykewise bears. Therafter ther being a petition lykewayes presented to the Saids Lords by Alexander Davidson of Gight, Shewing that when the Complaint at the petitioners instance againest Cowbairdie, Mr Duff and their Accomplices, and the Reconvention at their instance againest me were read and Debate in their Lordships presence, that which the petitioner endeavoured to obviat was that Cowbairdie and Mr Duffs Servants and those other Accomplices who came along with them to his house Should not be admitted witnesses againest him being actuallie pairties and conveened as Such, Their Lordships pronounced a most just interloquitor in Relation to this poynt viz that his witnesses Should be first examined as to what they knew of Mr William and Robert Gordons and Francis Bruce ther actings or assistance in this matter, and if any thing were proven againest them they were not to be admitted as witnesses in the Reconvention, and if nothing were proven than they were to be Receaved when in the terms of this Interloquitor, the petitioner and his procurators Compeared befor the Commity wher the witnesses being to be examined, he did condescend on Such witnesses, first to be examined as he thought would be probation againest the saids masters Gordons and Bruce, against which witnesses Cowbairdie and Mr Duff did object that they were his own servants and therfor could not be received, but did urge that other witnesses whom they had cited might be examined, Wherupon Robert Mitchell on of his witnesses was called who being examined deponed somethings in relation to what happened at Gights gates the tyme lybelled and about the tyme of night but did not See all the particulars condescended on, nor know the Defenders except Robert Gordon, and Francis Bruce, as to whom he Depones on Some particulars as by his oath in the Clerks hands will appear, He being then obliedged to desyre his own Servants Should be examined, Because he knew ther were none other of his witnesses that could prove any thing againest those persons first to be considered, and therupon my procurators did make ane answer to the objection made againest them, viz that it was a Crime done done in the night time, and at his own gate wher ther was ane evident penury of witnesses none being present but the actors of the Crime and his own Servants, which the Lords of the Committie being pleased to report to their Lordships the matter was ordered to this effect that he Should give his oath of Calumnie as to the lybell againest Mrs William Robert Gordons and Bruce, and than their Lordships Recommends it to the Lords of the Committy to call and examine Adam Panton in Little Gight, and George Davidson of Cairnbrogie two of his witnesses and in case by their Depositions the Lords of the Committie Should find that they were both present at all the actions lybelled, Then their Lordships fand no penury and therfor his Servants not to be received, But in caice by their Depositions it Should appear they were not present, Than their Lordships as witnesses, In obedience to which interloquitor the Lords of the Committy having mett and examined Adam Panton the first witnes condescended on in the last Interloquitor who indeed did appear to be present at all the transactions lybelled, except that he was in the Stable, when John Duff, first Seased me, as his Deposition in the Clerks hands will testifie, Kairnbrogie being the nixt witnes condescended on He was called for whom a testificat was produced upon soul and conscience by phisitians and a minister that he was not able to come up, and farder upon his application the pursuars did judicially acknowledge that altho he were present he could prove nothing as to the Crimes committed at my gate at the tyme lybelled in regard he was in his bed befor they came to Gight and the tyme they went away, Wherupon I did expect that the alternative of their Lordships interloquitor was to take place so that his Servants Should be called and received, But in place therof the Lords of the Committie were pleased to find ther was no penury And therfore none of his miniall servants was to be received, and furder fand nothing was proven by his two witnesses examined againest Mr William Gordon and Francis Bruce to inferr the Crimes lybelled, and therfor allowed them to be examined as witnesses in the Reconvention, wheranent they gave in a memoriall to the saids Lords of the Commity representing what was abovementioned, and Craving they would be pleased to reconsider their Interloquitor, to which they were pleased to give them this answer that they were not inclined to alter their Interloquitor But did allow them to apply to their Lordships and therupon Mr William Gordon and Francis Bruce were examined, He is not at present to Complain upon the Honorable Lords of the Committy their Interloquitor and examining Mr William Gordon and Francis Bruce he most begg leave to represent to their Lordships that his servants may be allowed to prove severall points of his lybell committed at his own gate againest the other Defenders Since these two alreadie examined are ignorant of several points therof, and its humbly contended that this is most agrieable to their Lordships former Interloquitor anent ther being examined, and were a great hardship upon their petitioners if the Same were not allowed Since the penury is evident these two alreadie deponing being almost in the Same caise as his own Servants the one of them to witt Mr Panton being his tennant and daylie attendant, and the other his Uncles Servant who was accidentally ther, and by their Depositions it will appear ther were severall things they were ignorant of, so that if the Defenders had not knowen that they would have objected againest them as well as the rest, and then he Should have been allowed no witnesses at all, and consequently no Crimes of the like nature could be proven but by the soiy criminis, which would be a most Dangerous consequence, And lastly what ever may be pretended againest his Deomstick Servants yet that can never exclude William Hendry his Gardner who hes a Distinct family of his own a peice distant from his house only labours his yards, and a little peice of ground to his own use in possesion wherof he has continued for fourteen years bypast and never received his entertainment in his family So that to exclude him were to frustrat him of all kind of probation which it is hoped their Lordships justice will not allow, and therfore Creaving their Lordships to consider the premisses and to allow the Committy to examine his haill other witnesses cited againest Cowbairdy and Mr Duff at least so many of them as their Lordships Shall think fitt, as the said petition bears And ther being lykewayes another petition given in and presented to the saids Lords of her Majesties privie Councill by the said James Hamilton of Cowbairdie and John Duff messenger, Shewing that wher the petitioners were most unjustly persewed at the instance of Alexander Davidson younger of Newtoun and now of Gight befor their Lordships for alleadged illegall and inhumane seizing of him in his house with Caption upon the seventeenth of September being Sundays morning after he had kyndlie entertained them in his house at Supper, In which most ungrate and calumnious Lybell he cites the haill Gentlemen and their Servants that were present as pairties and accessories to the pretended Crime on direct purpose to preclude their petitioners from proving of their Defence of exculpation and Recrimination, which being taken notice of in the pleading befor their Lordships They did most justly to Disapoint the pursuars their Designe appoynt the pursuar first to insist againest the Gentlemen and others Cited in their Reconvention, to the effect that if it did appear to the Lords of the Committie, that they had no accession to the said pretended Crime and violence they might be received witnesses in the Reconvention And accordingly the Committie having mett and taken the Deposition of one Mitchell who Deponed that he saw none of the witnesses cited in their Reconvention offer any violence to the said Laird of Gight, althrough he was present at the tyme of the said Capture and knew the said persons Gight did therafter offer to adduce his own servants as witnesses, and it being objected that they could not be received, as being inhabite by Law and it being replyed that the Cryme lybelled being Domestick Servants were priviledged as necessary witnesses, To which it being Duplyed that althroug Servants were admitted in Domestick Crimes yet that was only when the crime was Committed by Surprize on the family when ther were no other free and habite witnesses present, but, here the persons were Invited to Gights own house, and ther were other habite and unsuspect witnesses present, Therfor the servants could not be admitted, This objection being reported to their Lordships by the president of the Committy, their Lordships found that if ther were two free unsuspect witnesses who could Depone they were present, and that they Saw no violence Committed by the witnesses cited in the Reconvention, That ther Domesticks Should not be admitted, but that the witnesses Cited in the Reconvention Should be received although cited by the pursuar as pairties, The Lords of Committie did proceed according to their Lordships Recomendation and examined Adam Panton in Little Gight a person who was imployed by Gight himself in the whole matter who concurred with the former witnesses adduced by the pursuar, That he Saw no violence committed or offered by the witnesses Cited in the Reconvention to the Laird of Gight, and that they were present at the tyme of Mr Duffs seizing of the Laird of Gight, on the Caption lybelled on by the pursuers The Committie having Considered the two positive Depositions of the habile and unsuspect witnesses They did in the terms of their Lordships Recommendation find that the forsaid Gentlemen witnesses cited in the Reconvention were cleared from anie accession of the forsaid pretended Crime and refused to admitt the forsaid Domesticks as witnesses againest them, and admitted the witnesses cited by them, to depon, and They accordingly adduced Three, vis: Mr William Gordon a persone imployed as Mediator in the whole matter by Gight himself Mr Francis Bruce Merchant in Edinburgh a meer stranger in that Countrey who accidentally mett with them at Miltoun of Fyvie, and had not So much as acquaintance with anie of the pairties, and also Robert Watt servitor to Samfoord by whose Depositions, the whole tract and serious of this affair is made so evident and clear that Its humbly hoped their Lordships will See nothing remain upon the parte of the pursuar but the utmost ingratitude, Clamour Calumnie and unjustice, and their Lordships will also see by the Depositions that the Caption was also execute betwixt ten and eleven, and that the Samen was therafter Satisfied and transacted in the presence of the Right Honorable persons afternamed, viz The Earle of Aberdein and the Lord Haddo one of their Lordships number whose presence does exclude all pretence of force or extortion, and does Demonstrat the greatest Calumnie of this after pursuite, Their Lordships petitioners have severall other witnesses but Seeing the matter So fully cleared already, and Seeing the proces has been so grievous and expensive to them, and that the high Ingratitude and Injustice their petitioners have met with by the said Gight in all this matter, They humbly hope and begg their Lordships will instantly advise the probation, And therfor Craving their Lordships Seriously to consider the forsaid probation with the haill serious and tract of this affair and to modifie a sume of money to be payed to them for their expences and Damnadge which are verie great and heavie the said Injurious proces having been extreamly prejudiciall to them in asbtracting them from their necessars and important affairs, and otherwayes punish the pursuar as their Lordships In justice Shall think proper for preventing of Such gross oppression in time comeing, as the said petition lykewayes bears. The Lords of her Majesties privie Councill having this day proceeded to advyse, the mutuall proceses at the instance of Alexander Davidson younger of Newtoun now of Gight, againest Hamilton of Cowbairdie and John Duff messenger et e contra and the lybells principall and Reconvention with answers therto and petitions by both pairties with the Depositions of the witnesses adduced for either pairtie in the said proces being all read, and the saids Lords having considered the same, Have found and heirby Finds the principall lybell at the instance of the said Alexander Davidsone younger of Newtoun not proven, and have Assoilzied and heirby assoilzies the said James Hamilton of Cowbairdie and John Duff messenger and other Defenders therin from the haill poynts and articles therof, and have Declared and heirby Declares them quyt therof and free therfrae in all tyme coming and have Found and heirby Finds the forsaid lybell of Reconvention raised at the instance of the said James Hamiltoun of Cowbairdie and John Duff againest the said Alexander Davidsone Sufficiently proven, and both pairties being called into the barr The Lord Marques of Annandale Lord president of privie Councill Did intimat the Samen to them accordingly.
Edinburgh the 30th November 1704
D1704/11/13
Decreet
Decreit absolvitor John Duff and others against Davidsone of Newtoune
Anent the principall lybell or letters of Complaint raised and persewed befor the Lords of her Majesties privie Councill at the instance of Alexander Davidsone younger of Newtoun now of Geight, with concourse of Sir James Stewart Her Majesties advocat for her Highness interest, Makeing Mention that where by the Lawes of this and all other well governed Realms the publict peace ought to be be observed and all persons secure under the faith therof and protection of the Government, and that for any to brake the same by attacking and assaulting or injuring any other in their person or goods specially when done under a pretence and collour of friendship and a pretext of Law and legall dilligence and also on the Lords day when all execution even through legall ought to cease Is a high Cryme and ought to be Severly punished and the persone injured aught also to be restored and reponed againest all the effects and consequences therof Nevertheless It is of verity that James Hamilton of Cupbardie Mr William Gordon in Towie Robert Gordon his Brother […] Bruce and […] their servants and accomplices and John Duff messenger and […] Servitor to the Said John Duff Shaking off all regaird to our authority and Laws coming upon the Sixteenth of September last being Saturday at ten acloack at night to the house of Geicht, as if they had been friends and in a peaceable manner, were ther kyndlie entertained at Supper But after they had Stayed till two acloack on Sunday morning being the seventeenth of the said moneth and would needs be gone the Complainer did in Civility convoy them to their horses and than and ther the said James Hamiltoun of Cupbardie with Duff the messenger and other persons abovenamed Drew and cockt their pistolls and the messenger told Geicht that he was his prisoner at Patrick Gordons instance, Wherupon they all laid hold on him and took his sword from him braking it in the scabard and beat him to the great effusion of his bloud and the said Cupbardie threatned to Shoot on of Geichts Servants who offered to rescue him from their violence, and the saids persons having taken Geicht thus illegally on the Lords Day and violently and treacherously in manner forsaid They carried him as a prisoner all the Lords Day without regaird to the Divyne Service from place to place, and the said Cupbardie being Factor for the estate of Towie Did unlawfully Convocat the Tennents of Towie in arm’s to Destroy the Complainer, and thus carried him from one ale house to another Drinking Still on his Charges They keept him untill he gott a friend to pay the Debt in their pretended Caption, But when the Debt in the Caption was payed the said Messenger Duff would not pairt with the Complainer untill he extorted from him ane accepted bill of twentie pounds for his own Charges and when this was done the said Cupbardie told the Complainer (through he had not any ground or warrant for it) that he was Still his prisoner and Swore many bloody oaths he would not pairt with him but carry him wher no friend Should ever hear of him, Unless he would grant a bond of the like soume to Major Generall Buchan that within fourtein dayes he Should Registrat his Double of ane Contract of marriage and deliver ane Extract therof to the major Generall, Wherby the Complainer being Surprized, and Seeing a great many armed men upon the adjacent raising grounds ready to assist Cupbardie; and the Major Generall telling him that if he refused what was Demanded worse things might fall out, the Complainer and his Uncle Carnbryie were therby by violence and fear forced to grant the saids two bonds Lykeas all the tyme the Complainer was kept by them in Custody as a prisoner, They guarded him night and day with bended pistolls, By all which it is evident the said Hamiltoune of Cupbardie Mr William Gordon in Towie and Robert Gordon his Brother with the other persons abovenamed and Duff the Messenger are all and each of them Guiltie airt and pairt of a violent breach of the peace and most attrocious ryot and oppression and of having Committed privatam Carcerem, and the other violences and injuries abovementioned Which being proven befor the Lords of our privie Councill They ought not only to be Decerned in the Soume of Three thousand punds Scots of Damnages and expenses and ordained to redeliver the forsaid accepted bill and two bonds wrongously extorted as said is to be Cancelled, But also they ought to be farder punished in their persons and goods for the Crymes abovementioned to the example and terror of others to Committ the like in tyme coming, And anent the Chairge given to the Said Defender to have Compeired personally befor the Saids Lords at ane certain day bygone to have answered to the points of the said Complaint, and to have heard and Seen Such order and course taken theranent as the said Lords Should think fitt with certification as in the principall lybell or letters of complaint at more lenth is contained, And alse Anent the Lybell of Reconvention purchast and raised befor the saids Lords of Her Majesties privie Councill at the instance of the saids James Hamiltoun of Cupbairdie and John Duff messenger with concourse of Sir James Stewart her Majesties Advocat for her Highness interest Making mention that where by the Laws of this and all well governed Nations the deforcing or attempting to deforce Messengers in the lawfull execution of their office, and yet Notwithstanding therof the traduceing the said Messenger and his assistants for doing their Duty by most calumnious Complaints befor the Lords of our privie Councill, as also the withdrawing and abstracting of wryts of greatest importance or being airt and pairt therof against faith and trust given to the Contrary, wherupon the intruster is Subjected to personall execution and many other hardships, and likewayes the defaming of her Majesties Leidges who are of unquestionable reputation with the odious Crymes of oppression and abuse of the Lords day, and the putting of them to unnecessary trouble and expenses theranent are Crimes of a high nature and Severly punishable, and the persons so injured ought to be redressed, Nevertheless It is of verity that Alexander Davidsone younger of Newtoun and now of Geicht is guilty of the forsaid Delinquencies insofarr as that the Complainer the said John Duff haveing upon the Sixteenth of September last being Saturday execute or offered to execute letters of Caption at the instance of Patrick Gordon merchant in Aberdein, in her Majesties name againest the said Alexander Davidsone He in Confidence of being at his own house of Gicht Did by himselfe with drawen Sword, and by his Servants Deforce or offer to Deforce this lawfull authoritie with violence and resistance as also the said Alexander Davidsone has taken the confidence to raise a Councill Complaint not only againest the said messenger but also against the Complainer the said James Hamiltoun of Copbairdie, which is most groundless and false in all the articles therof and which calumnie and Defamation is the more aggravat in regaird of the particulars following, Viz that the said Complainer hes been most notoriously abused by the said Alexander Davidsone his Father and others for his behove (with whom he is airt and pairt) insofarr as ther being a Contract of marriage betwixt the Said Alexander and the Heretrix of Gicht in which Alexander and his Father were bound to releive (upon a profitable translation) the old Lady Geicht, off the Debts of the family the Comapliner the said Hamiltoun of Cowbardie borroued the old Ladies Double of that Contract, and under the greatest appearance of friendship did Lend the Same to the said Alexander or his Father for his behove, Wherupon the old Ladie and Major Generall Buchan her husband being Distressed for many Debts of the family by Such Creditors as the said Alexander and his Father did most inhumanly hund out while they retained the Contract which obliedged them in relief of the Same as aforsaid having pursued the Complainer in ane Exhibition and obtained two Decreets in foro against the Complainer after he had made many instances to the said Alexander and his Father for freeing him by producing the forsaid Contract they most treacherously and ungratefully did keep the same up both from the Complainer and from the Major Generall and his Lady who prosecute the exhibition till at last the Complainer being taken with Caption and in his way to prison having called at the said Alexanders house on the Sixteenth day of September last (the Complainer being taken with Caption) in order to his make his last intreatie of his Liberating the Complainer by Delivering up the forsaid Contract and the Messenger who had the Complainer in Custody taking the opportunity of executing the forsaid Caption with which he was intrusted againest the said Alexander Davidsone at that tyme the said Alexander does most causelessly and absurdly make the Complainer a pairtie in his Councill complaint tho he had the best ground to be the first Complainer, and wes all along a prisoner himselfe and therfor the Complainer ought not only to be assolzied from the forsaid malicious complaint befor the Lords of our privie Councill But lykewayes the said Alexander Davidsone ought to be punished to the terror of others to Committ the like in tyme coming as also Alexander Davidsone Decerned in Three thousand merks for the Complainers Damnages and expenses, and Seeing he has of Sett purpose cited severall persons particularlie Mr William Gordon in Towie Robert Gordon his Brother […] Bruce as pretended accomlpices of Design to exclude them from being witnesses for the Complainers tho they be at most the messengers assistants in execution of his office and consequently habill witnesses of his being deforced. And anent with certification as in the said lybell of Reconvention at more length is contained, Which two Lybells being upon the twentie third of november instance called in presence of the saids Lords of her Majesties privie Councill and the said Alexander Davidsone younger of Newtoune of now of Geicht persuar in the principall Lybell and Defender in the Reconvention Compearing personally at the Barr with Sir David Cunninghame Sir John Ferguson Mr William Black Mr James Stewart Mr Thomas Hope Mr George and Mr James Dalrymples his Advocats and the saids Defenders in the principall lybell two wherof are persuars in the Reconvention COmpearing also personally at the Barr with Mr David Forbes Mr Mungo Carnagie Mr Francis Grant and Master James Grahame their advocats the advocats for the Defenders in the principall cause Gave in the answers following to the principall Lybell viz: The Lybell raised by Geicht against Coubairdie and Master Duff being So extravagantly groundless that on the contrary they had the best reason to have been the first Complainers, it may be requisite to premise some view of the true matter of fact, The estate of Geicht was formerly in the name of Gordon, and the old Lady with assistance of friends particularly of Cowbairdie having retreived it from Sinking Burdens Mr Davidson (whose Father is rich) suited in marriage the heirs of Gight, and (in the contract of marriage) upon the old Ladies making over her rights to her Daughter and her appearand husband he and his Father become obliedged to relieve the old Lady of the Debts which She had undertaken for the family, when the marriage had once followed Mr Davidsone now of Gicht and his Father forget to pay the Debts that the old Lady might be Stressed for them, and least they Should be charged on the Contract for her relief they (under pretence of friendship and Communing) prevail with Cowbairdie to gett from him the old Ladies Double of the Contract which he had borrowed from her upon receipt, and once having gott it would never restore it, notwtisthanding of all the argyments of intreaty and honour for doing that justice, In the mean tyme the old Lady and Major Generall Buchan her husband (being Stressed for great Debts of the family and wanting to Contract which was the mean of their Relief) obtain two Decreits of Exhibition of this Contract in foro againest Cowbairdie on the last wherof he was taken by Caption be Mr Duff messenger in September last while Cowbairdie was in the Messengers hands at Milton of Fyvie in his way to prison Gight (whose house is only some miles distant from that place) comes to them and pretending the greatest Concern imaginable that Cowbairdie Should Suffer upon his account, prevailes with Mr Duff that he Should go and interceed with the old Lady and her Husband (who also were not far from that place) to give a fortnights forbearance to Cowbairdie upon the said Gights being obliedged under whatever penalty to Registrat the Contract in the mean tyme or otherwayes to present the prisoner, Mr Duff leaving Cowbairdie on parroll of honour not to escape goes and obtains the old Ladies consent to which her husband agreed, But on his return to Miltoun of Fyvie, Gight revokes all that he had promised when he found that the proposall had been accorded to, In the mean tyme Patrik Gordon a Creditor of the family, and nephew to Cowbairdie having accidentally arrived at that place and fearing that Gight who would not perform for Cowbairdie what was So easily in his power, would much less pay ane ordinary Debt of the family he thus abstracting the Contract which obliedged him therunto, as also ther being a rumour that the forsaid Contract was Destroyed the said Patrick Gordon being Creditor of the family and having obtained Decreit had a Caption againest Gight for about one hunder pound Sterling, calls Mr Duff the messenger aside puts the Caption in his hand, and orders him to doe his Duty in putting the Same in execution least ther might not be Such opportunitie therafter for Gight had formerlie fled into England for eviting these Debts, that the old Ladie and her husband might be forced to pay them, Mr Duff the messenger could not refuse master Gordons imployment but in the mean tyme ther is a message as from the young Lady Gight that if the Company would come with her husband to the house, the whole matter might be accomodat upon which Mr Duff ventured to carrie Cowbairdie his prisoner thither upon Saturdayes afternoone, but when come ther Gight would give nothing except an appearance of a kindly intertainment, wherupon Gight going out with them to horse, Mr Duff the messenger (fearing that he might be lyable for the Debt if he did not take Gight who might again runn into England) in her Majesties name executs Mr Gordons Caption against Gight, who offered to resist by drawing his Sword and calling to his Servants, But that Deforcement becoming ineffectuall the two prisoners are carried back to Miltoun of Fyvie that Night, That Mr Gordons Caption was at first execute upon Saturday, and did not at all incroach upon the Sabbath day, being at most, but about ten of the Cloack can be proven by witnesses beyond exception, Which Gight forseeing he has for Smotherin the truth if it were possible by his packt witnesses; pretended to Cite as pairties the Defenders most necessary witnesses, which abuse no doubt the Honorable Councill will redress, However the next day being the Sabbath, and that place of Miltoune of Fivy being within Gights own lands, wher the Tennents upon pretence of going to Church might conveen, and make a Disturbance for their Masters Liberation, Mr Duff the messenger did prudently, and necessarly go forward with his prisoners prisoners to the next Inns which was not far off, allowing to Gight to wear a Sword Still after the night of his first Capture, and ther they rested till the Sabbath was over, at Gights intreatie, not to be carried to prison he was continued for Munday and Tuesday that he might send for his friends, who having come to Towie (the place of tryst) they offer a totall accommodation, not only as to Mr Gordons Debt, but lykewise for Cowbairdies Releasment that being a fitt opportunitie for effectuating what Gights honour so much stood bound for, besides his legall obliedgment especially such persons of honour being present as the Earle of Aberdeen and his son my Lord Haddo who did interpose wherupon its agreed that the Earle of Abredein Should pay Mr Gordons Debt, and that George Davidsone of Carnbroge Gights uncle Should be Cautioner, that the Contract Should be registrat and the old Lady Gight with her Husbands Discharge of the exhibition should be obtained to Cowbairdie under Such penalties as were competent wher ther had been so manie former Disappointments, as also Gight did undertake the payment of the Missengers Dues both for the Caption againest himself and the other which had been execute againest himself and the other which had been execute againest Cowbairdie on his Default and account upon which both prisoners were dismissed, and Gight therafter homologat the agreement, by causing actually registrat the Contract and offer payment of the expensses, But upon inspection of the principall Contract in the Register, it being discovered that ther was a most criminall vitiation made therin Gight and his Fathers bethink themselves how to ballance or Drown the clamour heirof, and the method they fall upon is, That they raise a Councill complaint lybelling on unwarrantable executing of a Caption upon the Sabbath morning, a riotous convocation of the Leiges and extortion of Bonds and Concluding that these Should be given back and the actors punished especially with paying of a vast damnages and lest any might be left to witnes the falsehood of these stories, Gight the pursuer calls as pairties not only the Messengers assistants, which he ordinarly carries with him, but likewise the other Gentlemen who were were accidentally present, yea, even Mr William Gordon in Towie, tho he was imployed as a Communer for Gight himselfe against which Cowbairdie and Mr Duff having raised a Reconvention on Deforcement withdrawing of wryts oppression and treachery, It is answered for the Defenders to the pursuers libell, that the Same is denyed as most calumnious in all the Circumstances and qualifications therof that have the least shaddow of relevancie in them the true matter of fact being as is above represented, viz: That the first capture was not upon the Sabbath day, which as it is not presumed, so that necessary witnesses being first past from, as pairties, or cleared, it is offered to be proven to have been upon Saturday, That nothing followed therafter, except what was necessary to repell the pursuers Deforcement, or requisit to secure him against making escape, That as a Messenger dared not refuse to do his Duty, when any of the Leiges charged him with a Caption, so it is most false that Gight was Detained prisoner after the money was payed, yea he was totallie dismissed before a farthing of it was payed, which was not till some dayes therafter, That ther was no extortion in obtaining the forsaids obliegements, but on the contrary as they were congruous and just in themselves, So they were proposed by the pursuer and his friends and have been homologat after his freedome as said is, which matter is depending befor the Lords of Session, that the Defenders are so farr from being Injurers that they are the only persons injured in the caise, For Cowbairdie by all the rules of honour honesty and Law ought not to have been betrayed to trouble, Expences of plea and prison, upon Gights account when Gight putting his hand in his pocket to give out the Contract (which was most unjustly retained againest faith and right given) would have put an end to the business and Mr Duff notwithstanding of his pains in procuring the old Ladies consent to Gights own overture, and his hazard in venturing to Gights own house ere the accomodation should quite break up, and his lenity and discretion therafter intreating Gight as a Gentleman and indulging him Severall dayes from being carried to prison in presentia amicorum for ending the bussiness, Is ill rewarded by Defamation Diversion and Charges of this most groundless and absurd pursuit, and the advocats for the forsaid Alexander Davidsone younger of Newtoune now of Gight pursuer in the principall lybell and Defender in the Reconvention Gave in the answers following to the forsaids letters of reconvention, Bearing the said James Hamiltone and John Duff with others their accomplices being conveened before the privy Councill, at the instance of the said Alexander Davidsone for a most atrocious Ryot and manifest oppression upon the account of assaulting and attacking the said Alexander Davidsone in his house of Gight under Cloud and Silence of night by way of hamesucken, and putting a pretended Caption in execution againest him on the Lords day, and carrying him from one place to another and detaining him as in private prison and extorting from him an accepted precept for twentie peices to the Messenger after the Debt was paid, as also extorting from him bonds for great Sums of money in relation to other things that had no concern with the Caption, the said James Hamiltoun and John Duff has raised a most Groundless and calumnious Reconvention, and first wheras it is alleadged that the said John Duff having apprehended the said Alexander Davidsone with Caption at the instance of Patrick Gordon merchant in Aberdeen, upon Saturday the Sixteenth of September last, at the said Alexander Davidsons house of Gight, he, by himself with drawen sword, and his servants did deforce or offer to deforce the Messenger, It is answered primo, That as it is false in fact, that the said Alexander Davidsone did deforce the messenger with a drawn Sword, So that it is nowayes Competent, nor can the said Defence be admitted being Contrar to the said Alexander Davidsons Lybell which bears that the said James Hamiltoun and Duff the messenger having come to his house about ten of the Cloack at Night, they were most kyndly entertained at Supper albeit they did most barbarously and treacherously abuse and maletreat the said Alexander Davidsone in his house in manner mentioned in his own Lybell, contrair to all the rules of friendship and hospitality, Secundo if the said Alexander Davidson had drawn his Sword and offered any violence to the messenger as he did not, yet he might lawfullie have done it in his own Defence, Seeing it is positively offered to be proven, as is mentioned in his Lybell that Duff the Messenger did not offer to put the Caption in execution till two of the cloack in the Sunday morning at which tyme it was most unjust and unlawfull for him to have put any legall diligence in execution, and consequently he might be lawfullie resisted, and the said Alexander Davidson might justly have opposed the Messengers illegall violence by force, Tertio that alternative, that the said Alexander Davidson and his servants did offer to deforce the messenger is no wayes relevant for a pretended offer to do a crime is no cryme when the offer did not take effect, Secundo wheras it was aleladged that the said Alexander Davidsone had raised a Councill complaint againest the said James Hamilton and Duff the Messenger which is Said to be groundless and false in all its articles, It was answered that this being but a deniall of Alexander Davidsons lybell, and nothing againest the Relevancy the lybell ought to be admitted to his probation, and he positivly offered to prove the Same, Tertio wheras it was alleadged as an aggravation that ther being a Contract of marriage betwixt the said Alexander Davidson and the heretrix of Gight by which he and his Father were obliedged to releive the old Lady Gight of the Debts of the family the said James Hamilton having borrowed the Double of that Contract from the old Lady, and lent it to the said Alexander Davidsone or his Father, wherupon the old Lady and Major Generall Buchan her Husband were distressed for many Debts of the family, and they having obtained Decreit againest the Said James Hamilton for exhibiting and delivering of the Said Contract, and yet notwithstanding the Said Alexander Davidson doth Still retain the Samen, and at last the said James Hamilton being taken with Caption and in his way to prison having called at the said Alexander Davidsone house upon the Sixteenth of December last, and Duff the Messenger taking the opportunity to execute ane other Caption againest the Said Alexander Davidson he the Said Alexander did conveen the Said James Hamiltoun in the Councill Complaint againest the Messenger and others, It was answered that the said pretended aggravation was altogether groundless, for First It was most calumnious that either the said Alexander Davidsone or his Father did borrow the Said Contract from James Hamiltown, Secundo albeit the Said Alexander Davidson had the Said Contract in his Custodie, and that the old Lady Gight had obtained a Decreit againest James Hamiltoun for exhibition and delivery therof yet neither Alexander Davidson nor his Father were any wayes concerned in that matter, Tertio as to what was lybelled in relation to the said Alexander Davidson or his Father having of the Contract and ther not giving it up to the said James Hamilton It was properly a matter of civill right, and did not inferr any cryme and so could not be Sustained So much as ane aggravation of the said James Hamilton and Duff the messengers groundless Complaint Quarto what was mentioned in the said James Hamilton and Duffs Lybell in Relation to the Said Contract is altogether extrinsick to said Alexander Davidsons complaint againest them, which is for a manifest ryot, violence and oppression for albeit the said Alexander Davidson had keeped up the said Contract, yet that was no ground for the said James Hamilton, but a great aggravation of their cryme to have concurred with Duff the Messenger, to put the Caption for a Debt in execution at an unlawfull tyme and to beat and abuse the said Alexander Davidson in his own house, which was his Sanctuary, especially after they had been so civilly and kyndly intertained by him the night before, far less that he Should have concurred with the Messenger to extort from the Said Alexander an accepted precept to the Messenger, upon the pretences of expences after the Debt was payed, and by force and violence to have extorted bonds for exhibiting and delivery of the said Contract upon great penalties ther being no Sentences or Dilligences againest him for that effect, and the said Mr William Gordon of Towie Robert Gordon his Brother and […] Bruce are justly conveened as pairties who not only concurred as Accomplices with the Said James Hamilton and Duff, but also were the principall actors who attacked the said Alexander Davidson with cocked pistolls, and laid violent hands on him and beat him to the effusion of his blood, brook his sword in the scabbert and threatned to tread him under their feet, so that the said James Hamilton and Duff the messenger and ther saids accomplices being guilty of a most attrocious ryot, violence and oppression committed by them upon the person of the said Alexander Davidson, and art and part of the Samen in manner lybelled the said Alexander Davidsons Complaint ought to be admitted to probation, and he assoilzied from the said James Hamilton and Duff the messengers groundless and calumnious complaint, as the said answers bears, And the forsaid principall Lybell with the answers made therto by the said James Hamilton of Cowbairdie and John Duff messenger with the forsaid Lybell of Reconvention and answers made therto by the said Alexander Davidson being all read in presence of the saids Lords of her Majesties privie Councill, and both pairties Lawiers heard at the Barr and removed, The Saids Lords of her Majesties privie Councill by their Interloquitor the twentie third day of november instant admitted the Lybells to probation, and the witnesses for both pairties being called Such of them as are marked in the roll present Compeiring at the Barr Did make faith, The Councill nominats and appoints the Earles of Lauderdale Leven and Northesk Collingtoun and the Lord provost of Edinburgh to be a Committie to examine the witnesses, and Recommends to the said Committy to meet to morrow morning at ten acloack in the fornoon and Declares any three a quorum and to report, and grants to both pairties Letters of Second dilligence by Caption againest the absent witnesses as marked in the roll and not Compeiring, and assignes the […] day of […] next to come for that effect, But in respect the pursuer in the principall Lybell who is Defender in the Reconvention hes Cited the persons following as pairties in his principall Lybell, who are cited as witnesses for the saids pursuars in the Reconvention therby to prevent ther being adduced as necessary witnesses therin viz Master William Gordon in Towie Mr Francis Bruce merchant in Edinburgh Robert Gordon in Kinghorne John Broun his Servant Robert Watt Servitor to Patrick Gordon of Samphfoord Merchant in Aberdein Andrew Muir and Patrick Wilsone Servitors to the said John Duff, Therfore the saids Lords of her Majesties privie Councill Doe heirby Recommend to the Said Committy to receive the oaths and testimonies of Such witnesses as the pursuer in the principall Lybell Shall condescend on for proving the fornamed persons or any of them pairties in his principall lybell, and in caice no probation or evidence appear againest them or any of them to be pairtties, that then the said Committy receive them as witnesses for the pursuars in the Reconvention who are Defenders in the principall Lybell, and purge them of partiall Councill and malice and ordains the witnesses cited for the pursuar in the principall lybell to be at Liberty and have their full freedome, and the said Committie or their quorum having mett upon the twentie fourth day of November instant and having called in one of Gights Witnesses who being Solemnlie Sworn purged of partiall Councill and interrogat Deponed as his Deposition extant in proces bears. Therafter ther being objections offered by the Defenders in the principall lybell againest Some others of Gights witnesses which the Committie referred to the Councill, Ther was a memoriall given in and presented to the Lords of her Majesties privie Councill by the said Alexander Davidson younger of Newtoun now of Gight, Narrating as follow’s in the proces depending befor the privie Councill att the instance of Alexander Davidson younger of Newyoun now of Gight againest the said James Hamilton John Duff Mr William and Robert Gordons […] Bruce and others Their Lordships appoynted a Committie to examine the witnesses upon the lybell, and in caise by the probation the Committie Should find, that nothing was proven againest the said Mr William and Robert Gordons or […] Bruce that than the Committie Should admitt them as witnesses in the Reconvention, The Committie having mett, and the witnesses being called in, it was objected that […] Gights Gardner and […] his servants could not be admitted as witnesses in regard ther was not a penurie of witnesses, ther being many more who could prove the Lybell, that were present, and more habite witnesses and it being answered, that the Cryme being committed at Gights house in the Dead and Silence of the Night, ther is none that could be witnesses, but Such as lived at the Gates, or were his Domesticks, The Committie inclined to examine the witnesses, But the Defenders were So tenacious, as to plead that the Committie would report the objection to the Councill, which they acquiesced to do next Councill day, Their Lordships are therfor humbly desired to Consider that its impossible for Gight to prove his Lybell, but by those verie persons who live at his Gates, or in his house, ther being none else present at his maletreatment but the Defenders themselves, who are conveened by him, and as to the pretence that ther are severall other witnesses cited, these witnesses are such who can only prove the detaining of Gight prisoner, and carrying of him from place to place on the Sabbath day, and the other articles lybelled, but were not present when he was first apprehended, Especially Seeing that it is a certain rule in Law, that any mans Servants may be admitted witnesses in Domestick Crimes, in that case they being necessary witnesses, as for instance, if any man Should be assasinat in his house, the only proper witnesses that could prove this are his Servants, and in the case of hamsucken, when any man is assaulted in his house under cloud and silence of Night as this was, it is the constant practice both befor the Councill and justice Court, to allow Servants to be admitted witnesses both men and women, because in that case they are absolutly necessary witnesses, and the particulars lybelled in this Complaint, upon which the Crime principally depends, was the assaulting and attacking Gight at his house and Gate under cloud and silence of night, as the said Memoriall bears, Lykeas ther was objections given in by the said James Hamilton of Cowbairdie and John Duff, againest Richard Melvill William Henrie, and Jannet Black witnesses offered by Alexander Davidson of Gight in his proces befor the privie Councill, againest them, Representing as follows, The honorable Lords might well remember that it was plead for Cowbairdie and Mr Duff who are the persons only aimed at by the pursuer, that he had industriously cited all the Gentelmen and their Servants, who were accidentally ther as pairties therby to deprive the Saids Cowbairdie and Mr Duff of the benefite of their Depositions in their Exculpation, and this contrivance did plainly appear by their Conduct before the Comity for when Gights oath of Calumnie was Demanded by the forsaid Gentlemens Procurators the Parties themselves also Urging it, he did absolutly Shift and Declyne to give it alleading that it was not Compitent to crave his oath of Calumnie their, it not haveing been craved at the Councill and that the Councill only Could ordain him to Give his oath of Calumnie although it be Against all reason that any person Should pretend to prove a crime against his Nighbour without purging himself of Calumnie and the Law allows of that oath In ay pairt of the proces the nixt Stept he makes he offers his own Meniall and Domestick servants as witnesses, againest whom it was objected, that they being Miniall servants, the Law did reprobate their Testimonies, and being replyed, that servants are admitted in Domestick Crimes, which was the pursuars case, The pretended illegall Caption being in his own house under Cloud of night, and therfor could only be proven by his servants and family, To which it was answered that the priviledge of receiving unhabill witnesses Such as Servants in Domestick Crimes, is only admitted in the case when ther is no other habill and unsuspect witnesses present, than all the men servants he offers so that he can never be allowed to prove an pretended Crime againest Gentlemen, alleadged committed on him at his own gate, by his Domesticks, when the said Crime was alleadged by himselfe to be committed on him at his own gate in the Sight of five habil and indifferent witnesses, three of whom viz Adam Panton in Little Gight […] Cassie in Stonhouse of Gight, and […] Davidsone of Cairnbrogie Uncle to Gight, are witnesses beyond exception and ther being on the other hand five more cited by Cowbairdie in his exculpation, besides Mr Duffs assistance, viz Mr William Gordon in Towie, Robert Gordon in Kinghorny Francis Bruce Merchant in Edinburgh, Robert Watt, Servitor to Patrick Gordon of Sandfoord, and John Broun Servitor to the above designed Robert Gordon all persons present at the pretended ryot, besides Mr Duff and his ordinary assistants and witnesses all which persons of integrity and knowen Reputation are cited by the pursuar as pairties and accessaries to the pretended ryot, although they had no manner of accession therto, on purpose to preclude the Defenders from the benefite of their Depositions, and would prove the forsaid pretended accession by Domesticks, which the Law does Still reprobate, except in the caise wher ther are no other witnesses present, This was not a Domestick Crime that was lybelled, but the question was anent the legallity of the executing of the Caption in which the messenger and his witnesses in the execution are testes instrumentury et necessary, and therfor they can never be casten as pairtties and the pursuars design of making the whole persons present who are cited for the Defender pairties, except his own Uncle, and his obstinatly refusing at the Committie, to allow any of the unsuspect and habile witnesses to Depone and Shifting and refusing to purge himself of Calumnies is so evident a Contrivance that it is confidently hoped that the Lords of Councill will never allow any of his Domesticks to Depone, in respect ther are four or five unsuspect habill witnesses present at the pretended ryot, and who are cited by the pursuar himselfe, as the saids objections also bears which memoriall and objections being upon the twentie eight day of november instant read in presence of the Lords of her Majesties privie Councill, and they having considered the same The Saids Lords appoynted and ordained the said Alexander Davidson of Newtoun to give his oath of Calumnie in the said proces befor the said Committie and therafter Recommends to the Said Committie formerly appoynted therin to examine Adam Panton in Little Gight, and […] Davidson in Carnbrogie witnesses for the said Davidson of Gight, and in case it appear by ther oaths and testimonies that they were present all the tyme lybelled than the saids Lords have found and heirby finds that ther is no penury of witnesses, and that Gights miniall and Domestick servants ought not to be received as witnesses for him in the forsaid proces, But in caice it do not appear, appoynts his Domestick Servants to be received and Recommends to the said Committie to meet to morrow at eleven acloack in the fornoon and to report, and the said Committie or their quorum having mett upon the twentie ninth of november instant, Did first of all in obedience to the forsaid Interloquitor take the said Alexander Davidsone of Gight his oath of Calumnie, as the Samen extant in proces bears. And therafter called for another of Gights witnesses, who being solemnlie sworn purged of partiall Councill and malice Deponed as his Deposition extant in proces also bears, Therafter the said Committie conforme to the two severall remitts to them theranent having examined Robert Mitchell in Ellon and Adam Panton in Little Gight and have considered their Depositions they are of opinion that the saids two witnesses proved nothing against Mr William Gordon in Towie Francis Bruce son to the Deceast Alexander Bruce in Birne, and the rest of the Defenders who are cited as pairties in the principall lybell and witnesses in the Reconvention to make them pairties (except only against the person aftermentioned) and that the said persons cited as pairties in the principall lybell ought to be received as witnesses in the Reconvention for Cowbairdie and Mr Duff, except only that the saids two witnesses prove something againest Robert Gordon Brother to the said Master William, But how far that can make him a pairtie the Committy Remitts the Consideration therof to the Councill and appoynts Cowbairdie and John Duffs witnesses to be receieved the morrow att ten a Cloack in the fornoon and are of opinion that ther is no penury of witnsses, and accordingly the Said Committie having mett this Day and called for severall of Cowbairdies and John Duffs witnesses, who Compeared and being solemnlie sworn purged of partiall Councill and interrogat upon their great oaths Deponed as their Depositions extant in proces lykewise bears. Therafter ther being a petition lykewayes presented to the Saids Lords by Alexander Davidson of Gight, Shewing that when the Complaint at the petitioners instance againest Cowbairdie, Mr Duff and their Accomplices, and the Reconvention at their instance againest me were read and Debate in their Lordships presence, that which the petitioner endeavoured to obviat was that Cowbairdie and Mr Duffs Servants and those other Accomplices who came along with them to his house Should not be admitted witnesses againest him being actuallie pairties and conveened as Such, Their Lordships pronounced a most just interloquitor in Relation to this poynt viz that his witnesses Should be first examined as to what they knew of Mr William and Robert Gordons and Francis Bruce ther actings or assistance in this matter, and if any thing were proven againest them they were not to be admitted as witnesses in the Reconvention, and if nothing were proven than they were to be Receaved when in the terms of this Interloquitor, the petitioner and his procurators Compeared befor the Commity wher the witnesses being to be examined, he did condescend on Such witnesses, first to be examined as he thought would be probation againest the saids masters Gordons and Bruce, against which witnesses Cowbairdie and Mr Duff did object that they were his own servants and therfor could not be received, but did urge that other witnesses whom they had cited might be examined, Wherupon Robert Mitchell on of his witnesses was called who being examined deponed somethings in relation to what happened at Gights gates the tyme lybelled and about the tyme of night but did not See all the particulars condescended on, nor know the Defenders except Robert Gordon, and Francis Bruce, as to whom he Depones on Some particulars as by his oath in the Clerks hands will appear, He being then obliedged to desyre his own Servants Should be examined, Because he knew ther were none other of his witnesses that could prove any thing againest those persons first to be considered, and therupon my procurators did make ane answer to the objection made againest them, viz that it was a Crime done done in the night time, and at his own gate wher ther was ane evident penury of witnesses none being present but the actors of the Crime and his own Servants, which the Lords of the Committie being pleased to report to their Lordships the matter was ordered to this effect that he Should give his oath of Calumnie as to the lybell againest Mrs William Robert Gordons and Bruce, and than their Lordships Recommends it to the Lords of the Committy to call and examine Adam Panton in Little Gight, and George Davidson of Cairnbrogie two of his witnesses and in case by their Depositions the Lords of the Committie Should find that they were both present at all the actions lybelled, Then their Lordships fand no penury and therfor his Servants not to be received, But in caice by their Depositions it Should appear they were not present, Than their Lordships as witnesses, In obedience to which interloquitor the Lords of the Committy having mett and examined Adam Panton the first witnes condescended on in the last Interloquitor who indeed did appear to be present at all the transactions lybelled, except that he was in the Stable, when John Duff, first Seased me, as his Deposition in the Clerks hands will testifie, Kairnbrogie being the nixt witnes condescended on He was called for whom a testificat was produced upon soul and conscience by phisitians and a minister that he was not able to come up, and farder upon his application the pursuars did judicially acknowledge that altho he were present he could prove nothing as to the Crimes committed at my gate at the tyme lybelled in regard he was in his bed befor they came to Gight and the tyme they went away, Wherupon I did expect that the alternative of their Lordships interloquitor was to take place so that his Servants Should be called and received, But in place therof the Lords of the Committie were pleased to find ther was no penury And therfore none of his miniall servants was to be received, and furder fand nothing was proven by his two witnesses examined againest Mr William Gordon and Francis Bruce to inferr the Crimes lybelled, and therfor allowed them to be examined as witnesses in the Reconvention, wheranent they gave in a memoriall to the saids Lords of the Commity representing what was abovementioned, and Craving they would be pleased to reconsider their Interloquitor, to which they were pleased to give them this answer that they were not inclined to alter their Interloquitor But did allow them to apply to their Lordships and therupon Mr William Gordon and Francis Bruce were examined, He is not at present to Complain upon the Honorable Lords of the Committy their Interloquitor and examining Mr William Gordon and Francis Bruce he most begg leave to represent to their Lordships that his servants may be allowed to prove severall points of his lybell committed at his own gate againest the other Defenders Since these two alreadie examined are ignorant of several points therof, and its humbly contended that this is most agrieable to their Lordships former Interloquitor anent ther being examined, and were a great hardship upon their petitioners if the Same were not allowed Since the penury is evident these two alreadie deponing being almost in the Same caise as his own Servants the one of them to witt Mr Panton being his tennant and daylie attendant, and the other his Uncles Servant who was accidentally ther, and by their Depositions it will appear ther were severall things they were ignorant of, so that if the Defenders had not knowen that they would have objected againest them as well as the rest, and then he Should have been allowed no witnesses at all, and consequently no Crimes of the like nature could be proven but by the soiy criminis, which would be a most Dangerous consequence, And lastly what ever may be pretended againest his Deomstick Servants yet that can never exclude William Hendry his Gardner who hes a Distinct family of his own a peice distant from his house only labours his yards, and a little peice of ground to his own use in possesion wherof he has continued for fourteen years bypast and never received his entertainment in his family So that to exclude him were to frustrat him of all kind of probation which it is hoped their Lordships justice will not allow, and therfore Creaving their Lordships to consider the premisses and to allow the Committy to examine his haill other witnesses cited againest Cowbairdy and Mr Duff at least so many of them as their Lordships Shall think fitt, as the said petition bears And ther being lykewayes another petition given in and presented to the saids Lords of her Majesties privie Councill by the said James Hamilton of Cowbairdie and John Duff messenger, Shewing that wher the petitioners were most unjustly persewed at the instance of Alexander Davidson younger of Newtoun and now of Gight befor their Lordships for alleadged illegall and inhumane seizing of him in his house with Caption upon the seventeenth of September being Sundays morning after he had kyndlie entertained them in his house at Supper, In which most ungrate and calumnious Lybell he cites the haill Gentlemen and their Servants that were present as pairties and accessories to the pretended Crime on direct purpose to preclude their petitioners from proving of their Defence of exculpation and Recrimination, which being taken notice of in the pleading befor their Lordships They did most justly to Disapoint the pursuars their Designe appoynt the pursuar first to insist againest the Gentlemen and others Cited in their Reconvention, to the effect that if it did appear to the Lords of the Committie, that they had no accession to the said pretended Crime and violence they might be received witnesses in the Reconvention And accordingly the Committie having mett and taken the Deposition of one Mitchell who Deponed that he saw none of the witnesses cited in their Reconvention offer any violence to the said Laird of Gight, althrough he was present at the tyme of the said Capture and knew the said persons Gight did therafter offer to adduce his own servants as witnesses, and it being objected that they could not be received, as being inhabite by Law and it being replyed that the Cryme lybelled being Domestick Servants were priviledged as necessary witnesses, To which it being Duplyed that althroug Servants were admitted in Domestick Crimes yet that was only when the crime was Committed by Surprize on the family when ther were no other free and habite witnesses present, but, here the persons were Invited to Gights own house, and ther were other habite and unsuspect witnesses present, Therfor the servants could not be admitted, This objection being reported to their Lordships by the president of the Committy, their Lordships found that if ther were two free unsuspect witnesses who could Depone they were present, and that they Saw no violence Committed by the witnesses cited in the Reconvention, That ther Domesticks Should not be admitted, but that the witnesses Cited in the Reconvention Should be received although cited by the pursuar as pairties, The Lords of Committie did proceed according to their Lordships Recomendation and examined Adam Panton in Little Gight a person who was imployed by Gight himself in the whole matter who concurred with the former witnesses adduced by the pursuar, That he Saw no violence committed or offered by the witnesses Cited in the Reconvention to the Laird of Gight, and that they were present at the tyme of Mr Duffs seizing of the Laird of Gight, on the Caption lybelled on by the pursuers The Committie having Considered the two positive Depositions of the habile and unsuspect witnesses They did in the terms of their Lordships Recommendation find that the forsaid Gentlemen witnesses cited in the Reconvention were cleared from anie accession of the forsaid pretended Crime and refused to admitt the forsaid Domesticks as witnesses againest them, and admitted the witnesses cited by them, to depon, and They accordingly adduced Three, vis: Mr William Gordon a persone imployed as Mediator in the whole matter by Gight himself Mr Francis Bruce Merchant in Edinburgh a meer stranger in that Countrey who accidentally mett with them at Miltoun of Fyvie, and had not So much as acquaintance with anie of the pairties, and also Robert Watt servitor to Samfoord by whose Depositions, the whole tract and serious of this affair is made so evident and clear that Its humbly hoped their Lordships will See nothing remain upon the parte of the pursuar but the utmost ingratitude, Clamour Calumnie and unjustice, and their Lordships will also see by the Depositions that the Caption was also execute betwixt ten and eleven, and that the Samen was therafter Satisfied and transacted in the presence of the Right Honorable persons afternamed, viz The Earle of Aberdein and the Lord Haddo one of their Lordships number whose presence does exclude all pretence of force or extortion, and does Demonstrat the greatest Calumnie of this after pursuite, Their Lordships petitioners have severall other witnesses but Seeing the matter So fully cleared already, and Seeing the proces has been so grievous and expensive to them, and that the high Ingratitude and Injustice their petitioners have met with by the said Gight in all this matter, They humbly hope and begg their Lordships will instantly advise the probation, And therfor Craving their Lordships Seriously to consider the forsaid probation with the haill serious and tract of this affair and to modifie a sume of money to be payed to them for their expences and Damnadge which are verie great and heavie the said Injurious proces having been extreamly prejudiciall to them in asbtracting them from their necessars and important affairs, and otherwayes punish the pursuar as their Lordships In justice Shall think proper for preventing of Such gross oppression in time comeing, as the said petition lykewayes bears. The Lords of her Majesties privie Councill having this day proceeded to advyse, the mutuall proceses at the instance of Alexander Davidson younger of Newtoun now of Gight, againest Hamilton of Cowbairdie and John Duff messenger et e contra and the lybells principall and Reconvention with answers therto and petitions by both pairties with the Depositions of the witnesses adduced for either pairtie in the said proces being all read, and the saids Lords having considered the same, Have found and heirby Finds the principall lybell at the instance of the said Alexander Davidsone younger of Newtoun not proven, and have Assoilzied and heirby assoilzies the said James Hamilton of Cowbairdie and John Duff messenger and other Defenders therin from the haill poynts and articles therof, and have Declared and heirby Declares them quyt therof and free therfrae in all tyme coming and have Found and heirby Finds the forsaid lybell of Reconvention raised at the instance of the said James Hamiltoun of Cowbairdie and John Duff againest the said Alexander Davidsone Sufficiently proven, and both pairties being called into the barr The Lord Marques of Annandale Lord president of privie Councill Did intimat the Samen to them accordingly.
