Tag Archives: November

Decreet, 28 November 1695, Edinburgh

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Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/351

Decreet

Decreit Thomas Porteous and others against John Dick in Jedburgh

Anent the Lybell or letters of Complaint raised before the Lords of his majesties privy Councill at the instance of Thomas Porteous provest Hendry Young James Olipher Gilbert Eliot and Thomas Cranstoune baillies present Magistrats of the burgh of Jedburgh for themselves and in name and behalf of the Toune Councill thereof and James Knigh Jaylor of the Tolbooth of the said burgh with concourse of Sir James Stewart his majesties advocat in the matter underwritten Making Mention That wher by the Comon Law, Law and practices of this realme and Lawes of all other weell governed nations The breaking of prison by any persone especiallie when Committed there for satisfieing Justice and payment of a fyne Imposed by the Lawfull Magistrats for ane high ryot and breach of the peace and for open and manifast contempt of the Sentence of the Civill Magistrat in open Court and the beating Stricking and wounding of the Magistrats within burgh and ther publict Jaylor appointed by them By John Dick burges and inhabitant of the said burgh of Jedburgh to facilitate and procure his escape from and breaking out of prisone Be all Crimes of ane high nature and Severly punishable Nevertheless the said John Dick haveing Charged John Kennedy another burges of Jedburgh for the soume of thrie hundred punds Scots and bygone aboverents thereof Contained in ane bond granted by William Hasswell ane appothecary in the said burgh as principle and the said John Kennedy as Cautioner, The said John Kennedy within the dayes of the Charge having intimat the Distress to Christian Hasswell or to the said William Hasswell She Conveens the said John Dick before the saids pursuers Magistrats of Jedburgh for payment of Eightein punds yearly of tack dutie for two aikers of Land sett by the said William Hasswell to him in tack for payment of the said tack dutie yearly by and attour the Cess and publict burdein And Craved that he might aither pay in the said tack dutie or allow it in the bygone annualrents of the soume Charged for, And both parties haveing Compeired And the tack being produced, And the said John Dick haveing acknowledged his possession the Magistrats by their sentance and interloquitor Ordained the said John Dick to make Compt and reckoning and to allow what Should be found due by him upon his intromissions And In Respect he refused to make Compt and reckoning, The saids Magistrats Decerned for the tack duties Lybelled, Notwithstanding wherof the said John Dick protested in face of Court that he would not obey the Sentance And accordingly that afternoon he distressed the Cautioner for the whole Soume and bygone annualrents and penalties Contained in the bond without allowing either the retentione Conforme to the act of parliament or allowing any Compensation for the tack duty And after all refused to give up a bond of Coroboratione granted for the same soume, Wherupon the debitors were againe obleidged to pursue him before the saids pursuers Magistrats of the said burgh of Jedburgh for delivering up the said bond of Corroboratione And againe both parties Compeiring And the Discharge of the first bond being produced the Magistrats Decerned the said John Dick to give up the forsaid bond of Corroboration under the paine of ane hundred Scots Which Sentance he also protested he could not obey But haveing used many insolent and minaceing Speeches and behavior to the pursuers they therfor imlawed him in fiftie punds Scots and ordained him to Stay and remaine in prison till he Satisfied the samen, But In Respect he hade the benefit of open prisone being a burges he having Continued drinking ther till towards Eight a Cloak at night He then hade the Impudence to remove himself out of prison without any Respect to his incarceration And nixt day being requyred by the magistrats to repair to prison under the paine of five hundred merks He Refused to obey ther desire intimat to him by the Jaylor and toune Clerk as ane instrument taken therupon does bear and having afterwards Compeired affrontedly in the Street before the magistrats and their officers And inhabitants of the said Toune The said Thomas Porteous provest was oblidged to requyre the inhabitants concurence Wherupon the said John Dick at last offered to goe to prison if the provest would conduct him and Shew him the way Which the provest Innocently Condescended unto thinking therby to prevent a tumult and disorder in the toune And the said provest haveing then arreisted him to remaine in prison and to behave himself Comperably and Civilly untill the toune Councill Should meet and Consider what Censures Should be inflicted upon him for the injuries done to the toune by the Disobedience and Contempt of the magistrats And the said Thomas Porteous provest therafter goeing out and Calling for the said James Knight Jaylor the said John Dick did upon the twentie Sixth Twentie Seventh or one or other of the dayes of the said moneth of Jully last by past in a furious maner flee upon the said Thomas Porteous provest and Strict him on the breast sore against the heart thinking therby to have throwen him over the Stairs of the prison which danger he narrowly escaped by the help of some of the inhabitants who were standing by him And thrust back the said John Dick into the prison wher he wrestled with the said James Knight Jaylor thinking to kill him untill he was Rescued by the toune officers But some of his Nighbours haveing Stayed with the said John Dick in the prison till night He and they in the night tim brock the prison doors with hamers and other instruments and escaped therby out of prison and hath not since been seen in the toune And Therfore the said John Dick ought to be fyned in the soume of five thousand merks Scots The one half to be payed to the thesaurer of the said burgh for the use therof, And the other half to the said Thomas Porteous provest for his damnage and expensses and to be banished the kingdome never to returne to the terror of others to Comitt the like in time comeing Conform to the Constant practise both of the Lords of his Majesties privy Councill and Lords of Justiciary in the like cases And Anent the Charge given to the saids defender to have Compeired personally before the saids Lords At ane Certaine day now bygone To have answered to the forsaid Complaint And to have heard and Seen such order and Course taken theranent as the saids Lords shall find Just under the paine of rebellion etc As in the principall Lybell or letters of Complaint raised in the said matter and executiones therof at more length is Contained Which Lybell being upon the Seventh day of November instant Called in presence of the saids Lords of his Majesties privy Councill The said Thomas Porteous provest Gilbert Eliot and Thomas Cranstone baillies thrie of the persuers Compeiring personally with Sir James Stewart his majesties advocat Mr Robert Bennet and James Stewart their advocats And the said John Dick defender Compeiring also personally with Sir Patrick Hume his advocat The Lybell and answers therto being both read and both parties advocats fully heard The saids Lords Admitted the Lybell to probation, And some of the witnesses haveing Compeired and made faith, The Lords appointed a Comittie to examine them And Allowed a farder dilligence against the witnesses cited and not Compeiring Who haveing therafter Compeired and made faith the saids Lords Remited to the same Comittie to examine them and Reserved all objections which might be made against any of the saids witnesses to be proponed And Discust before the Comittie Therafter the Comittie haveing mett and having examined the saids witnesses they all deponed as their oathes and depositiones extant in proces bears And the saids Lords having upon the twentie one day of november instant advised this proces and Considered the depositiones of the witnesses adduced be the pursuer for proveing the Lybell Togither with a petition given in for the defender John Dick And having againe heard both parties and his majesties advocat and Mr Robert Benet advocat Compeiring with and for the pursuers and Sir Patrick Home and Mr John Frank advocats Compeiring with and for the defenders The saids Lords Finds the Lybell proven And Therfore They thereby Fyned John Dick the defender in the Soume of Fyve hundred merks scots to be payed be him to the pursuer Thomas Porteous provest of Jedburgh for the Ryot Lybelled and the haill expences Which the pursuer hath been at in this proces, And Ordained letters of horning on fiftein dayes and others needfull to be direct heirupon under the Signet of Councill informe as effeirs And Ordained the defenders instantly to find Suficient Cautione Acted in the books of privy Councill That he shall make payment to the said pursuer of the said fyne of five hundred merks and appoints the macers of Councill to Seize upon and Secure the persone of the said John Dick untill he find the said Cautione as said is But superceid extracting of this Decreet till thursday the twentie Eight of November instant Betwixt and which if the defender produce ane decreet at the instance of the said provest before the magistrats of Jedburgh Sentenceing and Judging the said John Dick for the particular acts of Insolence and Ryot Lybelled in this proces the same shall be received and upon the privy Councills Finding the saids Ryotous acts to be allready Judged by the said ded the said bond and this Decreet is to be discharged and Rescinded And the said actione being againe Called this day in presence of the saids Lords of his majesties privy Councill and both parties Compeiring personally The said John Dick defender produced a paper which he pretended to be the Decreet at the said Thomas Porteous instance against him before the magistrats of Jedburgh Sentenceing and Judging him for the particular acts of Insolence and Ryot Lybelled in this proces And the said Lords having Considered the said paper with two petitioners given in to them one for the Provest proteous and another for John Dick They Find that the paper produced for the said John Dick Is not the Decreet Which by the Last interloquitor in this proces He was appointed to have produced this day And Therfore they Find that the matter Lybelled is not res hacta Judicata And Ordaines the Decreet formerly pronunced in this proces to be extracted, And the saids Lords Ordained the said John Dick to Crave pardon from the said Provest Porteous Which he did accordingly at the Councill in face of the Councill And Ordaines the said John Dick to be Caried prisoner to the Tolbooth of Edinburgh untill he make payment to the said provest of the forsaid fyne of fyve hundred merks.

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/351

Decreet

Decreit Thomas Porteous and others against John Dick in Jedburgh

Anent the Lybell or letters of Complaint raised before the Lords of his majesties privy Councill at the instance of Thomas Porteous provest Hendry Young James Olipher Gilbert Eliot and Thomas Cranstoune baillies present Magistrats of the burgh of Jedburgh for themselves and in name and behalf of the Toune Councill thereof and James Knigh Jaylor of the Tolbooth of the said burgh with concourse of Sir James Stewart his majesties advocat in the matter underwritten Making Mention That wher by the Comon Law, Law and practices of this realme and Lawes of all other weell governed nations The breaking of prison by any persone especiallie when Committed there for satisfieing Justice and payment of a fyne Imposed by the Lawfull Magistrats for ane high ryot and breach of the peace and for open and manifast contempt of the Sentence of the Civill Magistrat in open Court and the beating Stricking and wounding of the Magistrats within burgh and ther publict Jaylor appointed by them By John Dick burges and inhabitant of the said burgh of Jedburgh to facilitate and procure his escape from and breaking out of prisone Be all Crimes of ane high nature and Severly punishable Nevertheless the said John Dick haveing Charged John Kennedy another burges of Jedburgh for the soume of thrie hundred punds Scots and bygone aboverents thereof Contained in ane bond granted by William Hasswell ane appothecary in the said burgh as principle and the said John Kennedy as Cautioner, The said John Kennedy within the dayes of the Charge having intimat the Distress to Christian Hasswell or to the said William Hasswell She Conveens the said John Dick before the saids pursuers Magistrats of Jedburgh for payment of Eightein punds yearly of tack dutie for two aikers of Land sett by the said William Hasswell to him in tack for payment of the said tack dutie yearly by and attour the Cess and publict burdein And Craved that he might aither pay in the said tack dutie or allow it in the bygone annualrents of the soume Charged for, And both parties haveing Compeired And the tack being produced, And the said John Dick haveing acknowledged his possession the Magistrats by their sentance and interloquitor Ordained the said John Dick to make Compt and reckoning and to allow what Should be found due by him upon his intromissions And In Respect he refused to make Compt and reckoning, The saids Magistrats Decerned for the tack duties Lybelled, Notwithstanding wherof the said John Dick protested in face of Court that he would not obey the Sentance And accordingly that afternoon he distressed the Cautioner for the whole Soume and bygone annualrents and penalties Contained in the bond without allowing either the retentione Conforme to the act of parliament or allowing any Compensation for the tack duty And after all refused to give up a bond of Coroboratione granted for the same soume, Wherupon the debitors were againe obleidged to pursue him before the saids pursuers Magistrats of the said burgh of Jedburgh for delivering up the said bond of Corroboratione And againe both parties Compeiring And the Discharge of the first bond being produced the Magistrats Decerned the said John Dick to give up the forsaid bond of Corroboration under the paine of ane hundred Scots Which Sentance he also protested he could not obey But haveing used many insolent and minaceing Speeches and behavior to the pursuers they therfor imlawed him in fiftie punds Scots and ordained him to Stay and remaine in prison till he Satisfied the samen, But In Respect he hade the benefit of open prisone being a burges he having Continued drinking ther till towards Eight a Cloak at night He then hade the Impudence to remove himself out of prison without any Respect to his incarceration And nixt day being requyred by the magistrats to repair to prison under the paine of five hundred merks He Refused to obey ther desire intimat to him by the Jaylor and toune Clerk as ane instrument taken therupon does bear and having afterwards Compeired affrontedly in the Street before the magistrats and their officers And inhabitants of the said Toune The said Thomas Porteous provest was oblidged to requyre the inhabitants concurence Wherupon the said John Dick at last offered to goe to prison if the provest would conduct him and Shew him the way Which the provest Innocently Condescended unto thinking therby to prevent a tumult and disorder in the toune And the said provest haveing then arreisted him to remaine in prison and to behave himself Comperably and Civilly untill the toune Councill Should meet and Consider what Censures Should be inflicted upon him for the injuries done to the toune by the Disobedience and Contempt of the magistrats And the said Thomas Porteous provest therafter goeing out and Calling for the said James Knight Jaylor the said John Dick did upon the twentie Sixth Twentie Seventh or one or other of the dayes of the said moneth of Jully last by past in a furious maner flee upon the said Thomas Porteous provest and Strict him on the breast sore against the heart thinking therby to have throwen him over the Stairs of the prison which danger he narrowly escaped by the help of some of the inhabitants who were standing by him And thrust back the said John Dick into the prison wher he wrestled with the said James Knight Jaylor thinking to kill him untill he was Rescued by the toune officers But some of his Nighbours haveing Stayed with the said John Dick in the prison till night He and they in the night tim brock the prison doors with hamers and other instruments and escaped therby out of prison and hath not since been seen in the toune And Therfore the said John Dick ought to be fyned in the soume of five thousand merks Scots The one half to be payed to the thesaurer of the said burgh for the use therof, And the other half to the said Thomas Porteous provest for his damnage and expensses and to be banished the kingdome never to returne to the terror of others to Comitt the like in time comeing Conform to the Constant practise both of the Lords of his Majesties privy Councill and Lords of Justiciary in the like cases And Anent the Charge given to the saids defender to have Compeired personally before the saids Lords At ane Certaine day now bygone To have answered to the forsaid Complaint And to have heard and Seen such order and Course taken theranent as the saids Lords shall find Just under the paine of rebellion etc As in the principall Lybell or letters of Complaint raised in the said matter and executiones therof at more length is Contained Which Lybell being upon the Seventh day of November instant Called in presence of the saids Lords of his Majesties privy Councill The said Thomas Porteous provest Gilbert Eliot and Thomas Cranstone baillies thrie of the persuers Compeiring personally with Sir James Stewart his majesties advocat Mr Robert Bennet and James Stewart their advocats And the said John Dick defender Compeiring also personally with Sir Patrick Hume his advocat The Lybell and answers therto being both read and both parties advocats fully heard The saids Lords Admitted the Lybell to probation, And some of the witnesses haveing Compeired and made faith, The Lords appointed a Comittie to examine them And Allowed a farder dilligence against the witnesses cited and not Compeiring Who haveing therafter Compeired and made faith the saids Lords Remited to the same Comittie to examine them and Reserved all objections which might be made against any of the saids witnesses to be proponed And Discust before the Comittie Therafter the Comittie haveing mett and having examined the saids witnesses they all deponed as their oathes and depositiones extant in proces bears And the saids Lords having upon the twentie one day of november instant advised this proces and Considered the depositiones of the witnesses adduced be the pursuer for proveing the Lybell Togither with a petition given in for the defender John Dick And having againe heard both parties and his majesties advocat and Mr Robert Benet advocat Compeiring with and for the pursuers and Sir Patrick Home and Mr John Frank advocats Compeiring with and for the defenders The saids Lords Finds the Lybell proven And Therfore They thereby Fyned John Dick the defender in the Soume of Fyve hundred merks scots to be payed be him to the pursuer Thomas Porteous provest of Jedburgh for the Ryot Lybelled and the haill expences Which the pursuer hath been at in this proces, And Ordained letters of horning on fiftein dayes and others needfull to be direct heirupon under the Signet of Councill informe as effeirs And Ordained the defenders instantly to find Suficient Cautione Acted in the books of privy Councill That he shall make payment to the said pursuer of the said fyne of five hundred merks and appoints the macers of Councill to Seize upon and Secure the persone of the said John Dick untill he find the said Cautione as said is But superceid extracting of this Decreet till thursday the twentie Eight of November instant Betwixt and which if the defender produce ane decreet at the instance of the said provest before the magistrats of Jedburgh Sentenceing and Judging the said John Dick for the particular acts of Insolence and Ryot Lybelled in this proces the same shall be received and upon the privy Councills Finding the saids Ryotous acts to be allready Judged by the said ded the said bond and this Decreet is to be discharged and Rescinded And the said actione being againe Called this day in presence of the saids Lords of his majesties privy Councill and both parties Compeiring personally The said John Dick defender produced a paper which he pretended to be the Decreet at the said Thomas Porteous instance against him before the magistrats of Jedburgh Sentenceing and Judging him for the particular acts of Insolence and Ryot Lybelled in this proces And the said Lords having Considered the said paper with two petitioners given in to them one for the Provest proteous and another for John Dick They Find that the paper produced for the said John Dick Is not the Decreet Which by the Last interloquitor in this proces He was appointed to have produced this day And Therfore they Find that the matter Lybelled is not res hacta Judicata And Ordaines the Decreet formerly pronunced in this proces to be extracted, And the saids Lords Ordained the said John Dick to Crave pardon from the said Provest Porteous Which he did accordingly at the Councill in face of the Councill And Ordaines the said John Dick to be Caried prisoner to the Tolbooth of Edinburgh untill he make payment to the said provest of the forsaid fyne of fyve hundred merks.

1. NRS, PC2/26, 43v-46v.

1. NRS, PC2/26, 43v-46v.

Order, 28 November 1695, Edinburgh

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Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/341

Order

Recomendatione John Duncan and others to the thesaury for transporting Souldiers

Anent the petition given in to the Lords of his Majesties privy Councill be John Duncan at Dundie Watterside and the ouners of on the northern-ferries and the northerne burghs Lying on the port road Shewing That wher the highland rebells were in armes and his majesties forces drawen to the north against them The saids Lords by ther act dated the second of Jully Jaj vic Eightie Nyne years Did appoint the severall Northern burrowes to have in readines a Suficient horse and man for Dispatching letters and intelligence betwixt the Lords of privy Councill and Comander in Cheiff and else wher in his majesties service, And the keepers and ouners of boats and ferries were oblidged to fraught over regiments souldiers and expresses On all Occasions, And the forsaid act of Councill Does appoint them to keep ane account of the expences to the effect they may be re Imbursed by the Government as the samen ther present to Shew would testifie, In obedience wherwith the burghs furnished men and horss and the Ferries boats and passage in his Majesties service upon all occasions upon expectation of payment Conforme to the publict faith And Therfore Humbly Supplicating the saids Lords to the effect aftermentioned The Lords of his majesties privy Councill haveing Considered this petition Given in to them be the above John Duncan and others, They hereby Recommend to the Lords Commissioners of his majesties Thesaury to Cause make payment to the petitioners of all Ferrie fraughts which they shall instruct to be due to them for transporting of any of his majesties forces at any time bygone, and for time comeing to Cause make payment to them for transporting his majesties forces of the equall half of the fraughts accustomed to be payed by the ordinary Leidges according to use and want.

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/341

Order

Recomendatione John Duncan and others to the thesaury for transporting Souldiers

Anent the petition given in to the Lords of his Majesties privy Councill be John Duncan at Dundie Watterside and the ouners of on the northern-ferries and the northerne burghs Lying on the port road Shewing That wher the highland rebells were in armes and his majesties forces drawen to the north against them The saids Lords by ther act dated the second of Jully Jaj vic Eightie Nyne years Did appoint the severall Northern burrowes to have in readines a Suficient horse and man for Dispatching letters and intelligence betwixt the Lords of privy Councill and Comander in Cheiff and else wher in his majesties service, And the keepers and ouners of boats and ferries were oblidged to fraught over regiments souldiers and expresses On all Occasions, And the forsaid act of Councill Does appoint them to keep ane account of the expences to the effect they may be re Imbursed by the Government as the samen ther present to Shew would testifie, In obedience wherwith the burghs furnished men and horss and the Ferries boats and passage in his Majesties service upon all occasions upon expectation of payment Conforme to the publict faith And Therfore Humbly Supplicating the saids Lords to the effect aftermentioned The Lords of his majesties privy Councill haveing Considered this petition Given in to them be the above John Duncan and others, They hereby Recommend to the Lords Commissioners of his majesties Thesaury to Cause make payment to the petitioners of all Ferrie fraughts which they shall instruct to be due to them for transporting of any of his majesties forces at any time bygone, and for time comeing to Cause make payment to them for transporting his majesties forces of the equall half of the fraughts accustomed to be payed by the ordinary Leidges according to use and want.

1. NRS, PC2/26, 42v-43r.

1. NRS, PC2/26, 42v-43r.

Order, 28 November 1695, Edinburgh

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Order

Recommendation Sir James Ramsay and his Lady

Anent the petition given in to the Lords of his Majesties privy Councill be Sir James Ramsay of Logie and his Lady Shewing That wher the right honorable, The Estates of parliament In Consideration of the hard useage the petitioners hade mett with from the Earle of Seaforth Did by ther Act in June Last appoint the petitioners ane aliement of ane Thousand pounds Scots yearly to be payed be his Lordship dureing the dependence of their proces against him, And Seing the said aliement is Declared by the said act to Commence from Whitsunday Last and so is not payable till Whitsunday nixt Jaj vic nyntie six, Which was for Contrair to the mind of the parliament and the Nature of the alimentarie appointment which was rather to be advanced and more especially In the petitioners case whose wholl fortune is in the hands of the said Earle Wherby they are redacted to inexpressible straits and would have Sterved if the saids Lords hade not provyded remeed And Seing the petitioners are become very old and in firme Sir James being about Nyntie Seven years of age And ther throw has been fixt to his bed these two years bygone And ther aliment not being payable till Whitsunday and haveing nothing in the meantime either to Live upon or to burie them Credably the which probably may very shortly fall out And Therfore Humbly Supplicating the saids Lords to the effect aftermentioned The Lords of his majesties privy Councill haveing Considered this petition given in to them be the above Sir James Ramsay and his Lady, They hereby Recommend to the Lord Commissioners of his majesties thesaury to advance to the petitioners upon the Credit of the above Act of parliament what their Lordships shall find necessary for ther present subsistance, To be thankfully repayed out of the first and readiest of the said aliement appointed to the Saids petitioners be the said act of parliament.

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/331

Order

Recommendation Sir James Ramsay and his Lady

Anent the petition given in to the Lords of his Majesties privy Councill be Sir James Ramsay of Logie and his Lady Shewing That wher the right honorable, The Estates of parliament In Consideration of the hard useage the petitioners hade mett with from the Earle of Seaforth Did by ther Act in June Last appoint the petitioners ane aliement of ane Thousand pounds Scots yearly to be payed be his Lordship dureing the dependence of their proces against him, And Seing the said aliement is Declared by the said act to Commence from Whitsunday Last and so is not payable till Whitsunday nixt Jaj vic nyntie six, Which was for Contrair to the mind of the parliament and the Nature of the alimentarie appointment which was rather to be advanced and more especially In the petitioners case whose wholl fortune is in the hands of the said Earle Wherby they are redacted to inexpressible straits and would have Sterved if the saids Lords hade not provyded remeed And Seing the petitioners are become very old and in firme Sir James being about Nyntie Seven years of age And ther throw has been fixt to his bed these two years bygone And ther aliment not being payable till Whitsunday and haveing nothing in the meantime either to Live upon or to burie them Credably the which probably may very shortly fall out And Therfore Humbly Supplicating the saids Lords to the effect aftermentioned The Lords of his majesties privy Councill haveing Considered this petition given in to them be the above Sir James Ramsay and his Lady, They hereby Recommend to the Lord Commissioners of his majesties thesaury to advance to the petitioners upon the Credit of the above Act of parliament what their Lordships shall find necessary for ther present subsistance, To be thankfully repayed out of the first and readiest of the said aliement appointed to the Saids petitioners be the said act of parliament.

1. NRS, PC2/26, 42r-42v.

1. NRS, PC2/26, 42r-42v.

Procedure, 28 November 1695, Edinburgh

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D1695/11/321

Procedure

Remitt Mr Alexander Hegins

The Lords of his Majesties privy Councill haveing Considered a petition given in to them be master Alexander Hegins advocat with two Severall answers given in therto for the petitioners Crediters with another petition be the said Mr Alexander Hegins against the Creditors answers They hereby Remitt the petitioner to make his applicatione to the Lords of Session And Recomends to their Lordships to doe therin according to Law.

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/321

Procedure

Remitt Mr Alexander Hegins

The Lords of his Majesties privy Councill haveing Considered a petition given in to them be master Alexander Hegins advocat with two Severall answers given in therto for the petitioners Crediters with another petition be the said Mr Alexander Hegins against the Creditors answers They hereby Remitt the petitioner to make his applicatione to the Lords of Session And Recomends to their Lordships to doe therin according to Law.

1. NRS, PC2/26, 41v-42r.

1. NRS, PC2/26, 41v-42r.

Act, 28 November 1695, Edinburgh

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D1695/11/311

Act

Act appoynting Lapners agent to pay ten dollars to Patrick Feas wife

The Lords of his majesties privy Councill Doe hereby ordaine the person Imployed as agent for Robert Elphingstoune of Lapnes to Content and pay to […] spouse to Patrick Fea of Whithall the soume of Ten dollars for defraying her expences in attending at this place upon the proces raised before the saids Lords at her husbands instance against the said Robert Elphingstoune and that betwixt and Tuesday nixt with Certification if the Agent doe not pay the said ten dollars as above appointed they will advyse the said proces upon Tuseday nixt But if the same be timeously payed, The saids Lords Declaires they will Delay the Adviseing of the said proces for a Competent time untill Lapnes returne to this place Reserving to Lapnes to Crave releiff of the said ten dollars from the said Patrick Fea at the Adviseing of this proces.

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/311

Act

Act appoynting Lapners agent to pay ten dollars to Patrick Feas wife

The Lords of his majesties privy Councill Doe hereby ordaine the person Imployed as agent for Robert Elphingstoune of Lapnes to Content and pay to […] spouse to Patrick Fea of Whithall the soume of Ten dollars for defraying her expences in attending at this place upon the proces raised before the saids Lords at her husbands instance against the said Robert Elphingstoune and that betwixt and Tuesday nixt with Certification if the Agent doe not pay the said ten dollars as above appointed they will advyse the said proces upon Tuseday nixt But if the same be timeously payed, The saids Lords Declaires they will Delay the Adviseing of the said proces for a Competent time untill Lapnes returne to this place Reserving to Lapnes to Crave releiff of the said ten dollars from the said Patrick Fea at the Adviseing of this proces.

1. NRS, PC2/26, 41v-42r.

1. NRS, PC2/26, 41v-42r.

Warrant, 28 November 1695, Edinburgh

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D1695/11/301

Warrant

Warrand to receive Dalfolly as one of the Cautioners for the Duke of Gordon

The Lords of his Majesties privy Councill Doe hereby Authorize their Clerks to receive Adam Gordon of Dalfolly as Cautioner Joyntly with the Earle of Forfar in place of the viscou[n]t of Kenmuir for the Duke of Gordon in the bond appoynted to be given in be the said Duke for his peacable behavior and reentering the Castle of Edinburgh against the first day of January Jaj vic nyntie six years.

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five

D1695/11/301

Warrant

Warrand to receive Dalfolly as one of the Cautioners for the Duke of Gordon

The Lords of his Majesties privy Councill Doe hereby Authorize their Clerks to receive Adam Gordon of Dalfolly as Cautioner Joyntly with the Earle of Forfar in place of the viscou[n]t of Kenmuir for the Duke of Gordon in the bond appoynted to be given in be the said Duke for his peacable behavior and reentering the Castle of Edinburgh against the first day of January Jaj vic nyntie six years.

1. NRS, PC2/26, 41v.

1. NRS, PC2/26, 41v.

Sederunt, 28 November 1695, Edinburgh

Posted on by

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five1

D1695/11/292

Sederunt

Lord Chancelor; Earl of Southerland; Earl of Forfar; Viscount Tarbat; Lord Carmicheall; Lord Advocat; Lord Justice Clerk; Lord Fountonhall; Lord Enstruther; Laird of Blackbarony

Edinburgh the Twentie Eight day of November Jaj vic Nyntie five1

D1695/11/292

Sederunt

Lord Chancelor; Earl of Southerland; Earl of Forfar; Viscount Tarbat; Lord Carmicheall; Lord Advocat; Lord Justice Clerk; Lord Fountonhall; Lord Enstruther; Laird of Blackbarony

1. NRS, PC2/26, 41v.

2. NRS, PC2/26, 41v.

1. NRS, PC2/26, 41v.

2. NRS, PC2/26, 41v.

Judicial Proceeding, 26 November 1695, Edinburgh

Posted on by

Edinburgh Tusday the 26th day of November 1695

D1695/11/281

Judicial Proceeding

Protestatione for not insisting The defenders o2 against McGuffock of Rusco

Anent the letters or Lybell of Complaint purchased and raised before the Lords of his Majesties privy Councill at the instance of Hew Mcguffock of Rusco with Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwritten Making Mention That wher by the lawes and acts of parliament and Customes of this and all other weell Governed nationes the oppressing of his majesties Leidges under pretext of Law by Seazing upon them in In3 order to put them out to his majesties Levie and letting them goe for money, and puting out others who were not able to redeem themselves by money for want therof And the arbitrary quartering upon pretext of not puting out to the Levie wher the persones quartered upon were aither or not Lyable or hade made up ther Complement Be Crimes of ane high nature and Severly punishable yet true It is and of verity that Samuell Maxwell of Newlaw, Charles McClellan of of4 Colline, Archibald Coulder of Occoland, John Mcnaught Collector and Stewart Clerk of Kirkcudbright and Robert Maxwell of Hossellwood all or every one of them being appointed Leaders of the paroch of Redick and each of them to put out ane man to the Levy Did upon one or other of the dayes of the moneths of Jannuary February and remanent moneths of the years of God Jaj vic Nyntie four or Jaj vic Nyntie five years or one or other of the saids moneths and years seaze upon severall persones to goe out to the Levie and took money from them and lett them goe and took others in their place whom they demitted in the same termes and maner untill they fall upon poor people who were not able to redeem themselves, And after all have arbitrarly and without Law quartered upon the lands of Girstenwood belonging to the pursuer as deficient of ane man; wheras his valuation Is only two hundred punds, And the valuation for one man Is twe Thousand punds and he not a leader and his Complement however was full as appears by the Collectors letters Declareing that the pursuers part of the Levie was Completed Wherby the fornamed persones and each of them are actors guilty airt and part of ane manifast ryot and oppressione, and ought not only to be severly punished in ther persones and goods to the teror of others but the quartering in the mean time Ought to be Discharged And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the grounds of the above Complaint, And to have heard and Seen Such order and Course taken theranent as appertaines under the paine of rebellion etc As in the principall letters or Lybell of Complaint and executiones therof raised in the said matter at more5 Lenth is contained The saids letters or Lybells of Complaint being this day Called in presence of the saids Lords of his Majesties privy Councill They heirby Admitt Protestatione for not insisting against the said Hew Mcguffock of Rusco And modifies the soume of Ten punds scots of protestation money to be payed be the said pursuer to the said defenders And Ordaines letters at the defenders instance against the pursuer for payment thereof.

Edinburgh Tusday the 26th day of November 1695

D1695/11/281

Judicial Proceeding

Protestatione for not insisting The defenders o2 against McGuffock of Rusco

Anent the letters or Lybell of Complaint purchased and raised before the Lords of his Majesties privy Councill at the instance of Hew Mcguffock of Rusco with Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwritten Making Mention That wher by the lawes and acts of parliament and Customes of this and all other weell Governed nationes the oppressing of his majesties Leidges under pretext of Law by Seazing upon them in In3 order to put them out to his majesties Levie and letting them goe for money, and puting out others who were not able to redeem themselves by money for want therof And the arbitrary quartering upon pretext of not puting out to the Levie wher the persones quartered upon were aither or not Lyable or hade made up ther Complement Be Crimes of ane high nature and Severly punishable yet true It is and of verity that Samuell Maxwell of Newlaw, Charles McClellan of of4 Colline, Archibald Coulder of Occoland, John Mcnaught Collector and Stewart Clerk of Kirkcudbright and Robert Maxwell of Hossellwood all or every one of them being appointed Leaders of the paroch of Redick and each of them to put out ane man to the Levy Did upon one or other of the dayes of the moneths of Jannuary February and remanent moneths of the years of God Jaj vic Nyntie four or Jaj vic Nyntie five years or one or other of the saids moneths and years seaze upon severall persones to goe out to the Levie and took money from them and lett them goe and took others in their place whom they demitted in the same termes and maner untill they fall upon poor people who were not able to redeem themselves, And after all have arbitrarly and without Law quartered upon the lands of Girstenwood belonging to the pursuer as deficient of ane man; wheras his valuation Is only two hundred punds, And the valuation for one man Is twe Thousand punds and he not a leader and his Complement however was full as appears by the Collectors letters Declareing that the pursuers part of the Levie was Completed Wherby the fornamed persones and each of them are actors guilty airt and part of ane manifast ryot and oppressione, and ought not only to be severly punished in ther persones and goods to the teror of others but the quartering in the mean time Ought to be Discharged And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the grounds of the above Complaint, And to have heard and Seen Such order and Course taken theranent as appertaines under the paine of rebellion etc As in the principall letters or Lybell of Complaint and executiones therof raised in the said matter at more5 Lenth is contained The saids letters or Lybells of Complaint being this day Called in presence of the saids Lords of his Majesties privy Councill They heirby Admitt Protestatione for not insisting against the said Hew Mcguffock of Rusco And modifies the soume of Ten punds scots of protestation money to be payed be the said pursuer to the said defenders And Ordaines letters at the defenders instance against the pursuer for payment thereof.

1. NRS, PC2/26, 40v-41v.

2. Sic.

3. Sic.

4. Sic.

5. An illegible word scored out here.

1. NRS, PC2/26, 40v-41v.

2. Sic.

3. Sic.

4. Sic.

5. An illegible word scored out here.

Judicial Proceeding, 26 November 1695, Edinburgh

Posted on by

Edinburgh Tusday the 26th day of November 1695

D1695/11/271

Judicial Proceeding

Lumsdean of Auchindores bill refused

Anent the petition given into the Lords of his majesties privy Councill be John Lumsden of Auchindore now prisoner within the Tolbooth of Aberdeen Shewing That Wheras ther was a proces intented against the petition and before the Commissioners of Justiciary in the North district at the instance of the Lord Forbes and his tennents for his alledged accessione and hounding out of highland robers who came to the lands of March-marr and Westsheills and Caried away the wholl goods and Catle then in the tenents possession In which proces the Judges did proceid most Sumarly and Impartially In so far as they not only Decerned the petitioner to make payment of the Soume of One Thousand five hundred Seventie five pund as the value of the goods But also Decerned him in the Soume of Thrie hundred Nyntie thrie pund for damnadges Two Thousand merks of expences Thrie hundred and threttie pund to be payed to the Fisscall of Court and Seventie Seven pund Eight shilling for the wittnesses expences Upon which decreet the petitioner being Charged with horning he presented a bill of Suspension to the saids Lords and the samen being answered be the Chargers the saids Lords without Calling of parties were pleased to modifie the expences and restrict the Same to One Thousand punds Scots, But therafter the petitioner being ane Landed gentleman And Finding that his honor was more concerned then his intrest thinking it the basest of Crimes to be guilty of any Such villany as the hounding out of robbers upon his Nighbours intrests which deserves the Severest punishments He Therfore made a Second applicatione to the Saids Lords desireing that upon the grounds therin represented they would reconsider the former interloquitor and allow his procurators a hearing in their oun presence, But the Councill being Adjurned that Same day the bill was given in and throw the Multitude of Bussines the same not being read The persewers extracted their Decreet and be vertue of the dilligence upon the first decreet the petitioner was apprehended and incarcerat within the Tolbooth of Aberdein wher he now remaines, And he being Conscious of his oun Innocencie of the cryme for which he Lyes incarcerat and being fully resolves to undergoe the greatest hardships rather than Lye under the forsaid Imputation has therfore presumed to offer to the saids Lords a bill of Suspension upon the following most Just and relevant grounds Primo the time he was cited before the Commissioner of Justiciary he neither gott a list of the assyssors or witnesses that were ledd against him wherby he was precluded from his legall and Just objectiones against them Secundo Wheras the crymes Lybelled against the petitioner should have been put to the knowledge of ane assyze, Yet the Judges refused the same pretending that they Restricted the Lybell to a Civill effect Tertio They were so prepostreous even in this that albeit it was urged for the petitioner that Gordonstoune one of the Judges was son in Law to my Lord Forbes at whose instance the process was caried on, And that the Laird of Brodie was father in Law to the master of Forbes, And that thrie of the rest of the Judges were his brothers in Law, Yet this Dilator was repelled, And without allowing any furder debate upon the relevancie of the Lybell the same was admitted to probation Quarto albeit the petitioner offered positively to prove that how soon he heard that the Depredators were in the Countrey he Sent ane express to my Lord Forbes tennents Accquainting them therof, And that he himself dureing that night the depredation was Comitted was with his oun men on purpose to guard his oun goods from the hairship And that the nixt day how Soon he gott nottice that they hade robbed my Lord Forbes his intrest and his men did Concurr with my Lord Forbes Son and tennents And went after the depredators Yet thir most revelant defences for his exculpation were rejected Quinto when the wittnesses were adduced against him he offered him positively to prove That Shaw of Dalnaver was the principall actor And depredator and […] was one of his associats And that they hade threatned him Mischeiff and beside were under a Sentance of Fugitation for the same crime, And Therfore could not have been received And this objection is founded both on the Comon law and on the inviolable practiq of this kingdome Such who were Sorierimmis being presumed to be under the Temptatione of Deponeing Liberally for ther oun vindicatione But more especially was this objection Competent against them in this place Seing they Deponed Spe venie they being Lyable to the law and in reverence of the pursuers, And knowing that the value of the goods and damnadges being recovered they would be Liberat Sexto ther were only five who deponed against the petitioner Two of which were of the depredators as said is and he offers him positively to prove that thrie of them were alibi the time of the depredatione was Comitted being at twentie mylles distance to be from the place of the depredatione for the space of twentie four hours before at the time and after the Comitting of the said Heirship Septimo Dalnavert the principall witnes Cannot deny upon oath, But he advised to raise this proces and promised to furnish probation and to be a probative witnes himself For doeing wherof he was to be indemnified and otherwayes to be gratified and that these promisses were made by the persewers or others in ther name to the saids witnesses Octavo the forsaids haill objectiones at least most of them were proponed before the saids Comissioners and which the Suspender then offered him to prove he hade been allowed ane Exculpation, But all this was hurried over and the relevaincie probatione and all was Considered in one afternoon And the petitioner Decerned in the exorbitant soumes for which he now Lyes in prisone and which are near the value of his estate, And as this procedor was most prepostreous So the petitioner humbly conceaves that the Judges haveing restricted the Lybell to a Civill effect ther was no farder proces Competent before them for albeit Commissioners of Justiciary may decerne In damnadges as the Consequence of a Crime which is proven before them and recognosced by ane assyze, yet it was never heard of that a Criminall Judge Could restrict Criminall processes for robbing and heirship to Simple restrictione of the goods robbed, and therupon Lead a probatione, And Decerned without puting the Criminall to the knowledge of ane inquest And if Such decreits were Sustained the same may be off Dangerous Consequence ther being no precept before the Lords of Session wherin ther are more intricat debates then Spulzies wher oft times the title the relevancie and Competence of the Lybell are letigiously debated and in any case of this Nature before the Comissioners, Albeit iniquity may be Committed, yet the Lords of Session are by the Commission given to the Commissioners of Justiciary Secluded from giveing any redress, and the Commissioners themselves Considering That Civill actiones falls not under ther Cognizance by the Commission Have by a late act in September Last Declaired they will restrict no Criminall process to a Civill effect, nor Decerne restitutione or damnadges till the pannall be Convict and found guilty by ane assyze of the crimes Lybelled against him So that it was humbly conceaved that the designe of the Commission Is that these Judges Should Judge in matters Criminall by puting the pannall (in crimes capitall) to the knowledge of ane Assysse and being found guilty, That then they may Decerne restitution and Damnadges as the Consequence of the guilt Nono the persuers of this process against the petitioner were so deffident of ther getting repairation for their goods and Damnadges that they never attempted to pursue him before the Judge ordinary before whom allenarly this action was Competent but Chosed rather to prosecute it the way and maner above represented, and when the petitioner at first addressed ther Lordships, They used ther outmost indeavors to hinder his getting allowed a hearing in ther Lordships presence wher the petitioner would have Suficiently vindicat himself of any accession to this villany and depredation and have been so maliciouse against him both at that time and ever Since That they Load him as the basest and vilest of Criminalls Resolveing as one and the same time to ruine him in his intrest and Murder him in his fame and reputatione And Therfore humbly Craveing the saids Lords to Consider the premisses and Seing the petitioner Is Content to find Sufficient Caution to reenter himself prisoner in any prison the saids Lords Should appoint, And to remaine ther whill he pay not only what is Contained in the former Decreet But What farder the saids Lords Should modifie incase the petitioner succumb in probation of what is above represented that therfore the saids Lords would pass a suspensione and allow him to be sett at Liberty and Grant him a dilligence for citeing of witnesses for proving his reasones of Suspension As the petition bears The Lords of his Majesties privy Councill having Considered this petition given in to them be the above John Lumsdean of Auchindore with a representation for John Duncan and others of the Lord Forbesses tennents by way of Answer therto and a memoriall anent Auchindores petitione They hereby Refuse the desire of the said John Lumsdean of Auchindore his petition And Refuses to Grant him a Suspensione against the Chargers therin mentioned But Finds the letters at the Chargers instance against him orderly proceided.

Edinburgh Tusday the 26th day of November 1695

D1695/11/271

Judicial Proceeding

Lumsdean of Auchindores bill refused

Anent the petition given into the Lords of his majesties privy Councill be John Lumsden of Auchindore now prisoner within the Tolbooth of Aberdeen Shewing That Wheras ther was a proces intented against the petition and before the Commissioners of Justiciary in the North district at the instance of the Lord Forbes and his tennents for his alledged accessione and hounding out of highland robers who came to the lands of March-marr and Westsheills and Caried away the wholl goods and Catle then in the tenents possession In which proces the Judges did proceid most Sumarly and Impartially In so far as they not only Decerned the petitioner to make payment of the Soume of One Thousand five hundred Seventie five pund as the value of the goods But also Decerned him in the Soume of Thrie hundred Nyntie thrie pund for damnadges Two Thousand merks of expences Thrie hundred and threttie pund to be payed to the Fisscall of Court and Seventie Seven pund Eight shilling for the wittnesses expences Upon which decreet the petitioner being Charged with horning he presented a bill of Suspension to the saids Lords and the samen being answered be the Chargers the saids Lords without Calling of parties were pleased to modifie the expences and restrict the Same to One Thousand punds Scots, But therafter the petitioner being ane Landed gentleman And Finding that his honor was more concerned then his intrest thinking it the basest of Crimes to be guilty of any Such villany as the hounding out of robbers upon his Nighbours intrests which deserves the Severest punishments He Therfore made a Second applicatione to the Saids Lords desireing that upon the grounds therin represented they would reconsider the former interloquitor and allow his procurators a hearing in their oun presence, But the Councill being Adjurned that Same day the bill was given in and throw the Multitude of Bussines the same not being read The persewers extracted their Decreet and be vertue of the dilligence upon the first decreet the petitioner was apprehended and incarcerat within the Tolbooth of Aberdein wher he now remaines, And he being Conscious of his oun Innocencie of the cryme for which he Lyes incarcerat and being fully resolves to undergoe the greatest hardships rather than Lye under the forsaid Imputation has therfore presumed to offer to the saids Lords a bill of Suspension upon the following most Just and relevant grounds Primo the time he was cited before the Commissioner of Justiciary he neither gott a list of the assyssors or witnesses that were ledd against him wherby he was precluded from his legall and Just objectiones against them Secundo Wheras the crymes Lybelled against the petitioner should have been put to the knowledge of ane assyze, Yet the Judges refused the same pretending that they Restricted the Lybell to a Civill effect Tertio They were so prepostreous even in this that albeit it was urged for the petitioner that Gordonstoune one of the Judges was son in Law to my Lord Forbes at whose instance the process was caried on, And that the Laird of Brodie was father in Law to the master of Forbes, And that thrie of the rest of the Judges were his brothers in Law, Yet this Dilator was repelled, And without allowing any furder debate upon the relevancie of the Lybell the same was admitted to probation Quarto albeit the petitioner offered positively to prove that how soon he heard that the Depredators were in the Countrey he Sent ane express to my Lord Forbes tennents Accquainting them therof, And that he himself dureing that night the depredation was Comitted was with his oun men on purpose to guard his oun goods from the hairship And that the nixt day how Soon he gott nottice that they hade robbed my Lord Forbes his intrest and his men did Concurr with my Lord Forbes Son and tennents And went after the depredators Yet thir most revelant defences for his exculpation were rejected Quinto when the wittnesses were adduced against him he offered him positively to prove That Shaw of Dalnaver was the principall actor And depredator and […] was one of his associats And that they hade threatned him Mischeiff and beside were under a Sentance of Fugitation for the same crime, And Therfore could not have been received And this objection is founded both on the Comon law and on the inviolable practiq of this kingdome Such who were Sorierimmis being presumed to be under the Temptatione of Deponeing Liberally for ther oun vindicatione But more especially was this objection Competent against them in this place Seing they Deponed Spe venie they being Lyable to the law and in reverence of the pursuers, And knowing that the value of the goods and damnadges being recovered they would be Liberat Sexto ther were only five who deponed against the petitioner Two of which were of the depredators as said is and he offers him positively to prove that thrie of them were alibi the time of the depredatione was Comitted being at twentie mylles distance to be from the place of the depredatione for the space of twentie four hours before at the time and after the Comitting of the said Heirship Septimo Dalnavert the principall witnes Cannot deny upon oath, But he advised to raise this proces and promised to furnish probation and to be a probative witnes himself For doeing wherof he was to be indemnified and otherwayes to be gratified and that these promisses were made by the persewers or others in ther name to the saids witnesses Octavo the forsaids haill objectiones at least most of them were proponed before the saids Comissioners and which the Suspender then offered him to prove he hade been allowed ane Exculpation, But all this was hurried over and the relevaincie probatione and all was Considered in one afternoon And the petitioner Decerned in the exorbitant soumes for which he now Lyes in prisone and which are near the value of his estate, And as this procedor was most prepostreous So the petitioner humbly conceaves that the Judges haveing restricted the Lybell to a Civill effect ther was no farder proces Competent before them for albeit Commissioners of Justiciary may decerne In damnadges as the Consequence of a Crime which is proven before them and recognosced by ane assyze, yet it was never heard of that a Criminall Judge Could restrict Criminall processes for robbing and heirship to Simple restrictione of the goods robbed, and therupon Lead a probatione, And Decerned without puting the Criminall to the knowledge of ane inquest And if Such decreits were Sustained the same may be off Dangerous Consequence ther being no precept before the Lords of Session wherin ther are more intricat debates then Spulzies wher oft times the title the relevancie and Competence of the Lybell are letigiously debated and in any case of this Nature before the Comissioners, Albeit iniquity may be Committed, yet the Lords of Session are by the Commission given to the Commissioners of Justiciary Secluded from giveing any redress, and the Commissioners themselves Considering That Civill actiones falls not under ther Cognizance by the Commission Have by a late act in September Last Declaired they will restrict no Criminall process to a Civill effect, nor Decerne restitutione or damnadges till the pannall be Convict and found guilty by ane assyze of the crimes Lybelled against him So that it was humbly conceaved that the designe of the Commission Is that these Judges Should Judge in matters Criminall by puting the pannall (in crimes capitall) to the knowledge of ane Assysse and being found guilty, That then they may Decerne restitution and Damnadges as the Consequence of the guilt Nono the persuers of this process against the petitioner were so deffident of ther getting repairation for their goods and Damnadges that they never attempted to pursue him before the Judge ordinary before whom allenarly this action was Competent but Chosed rather to prosecute it the way and maner above represented, and when the petitioner at first addressed ther Lordships, They used ther outmost indeavors to hinder his getting allowed a hearing in ther Lordships presence wher the petitioner would have Suficiently vindicat himself of any accession to this villany and depredation and have been so maliciouse against him both at that time and ever Since That they Load him as the basest and vilest of Criminalls Resolveing as one and the same time to ruine him in his intrest and Murder him in his fame and reputatione And Therfore humbly Craveing the saids Lords to Consider the premisses and Seing the petitioner Is Content to find Sufficient Caution to reenter himself prisoner in any prison the saids Lords Should appoint, And to remaine ther whill he pay not only what is Contained in the former Decreet But What farder the saids Lords Should modifie incase the petitioner succumb in probation of what is above represented that therfore the saids Lords would pass a suspensione and allow him to be sett at Liberty and Grant him a dilligence for citeing of witnesses for proving his reasones of Suspension As the petition bears The Lords of his Majesties privy Councill having Considered this petition given in to them be the above John Lumsdean of Auchindore with a representation for John Duncan and others of the Lord Forbesses tennents by way of Answer therto and a memoriall anent Auchindores petitione They hereby Refuse the desire of the said John Lumsdean of Auchindore his petition And Refuses to Grant him a Suspensione against the Chargers therin mentioned But Finds the letters at the Chargers instance against him orderly proceided.

1. NRS, PC2/26, 37v-40v.

1. NRS, PC2/26, 37v-40v.

Decreet, 26 November 1695, Edinburgh

Posted on by

Edinburgh Tusday the 26th day of November 1695

D1695/11/261

Decreet

Decreit Suspending the letters Ewan against Garden and others

Anent the bill of suspension given in to the Lords of his majesties privy Councill be the poor boy William Ewing in Contullich Making Mentione That wher he was Charged with letters of horning to make payment to James Garden of Ballastrin John Gordon of Borland Alexander and Robert Farquharsone now of Bellamair, Alexander Simpson in Brydend of Glentaner Donald Farquharson of Cobltoune William Dundan at the milne of Brace lyne George Lessly at the milne of Dunatie, John Shaw in Bognagugall and Alexander Shaw ther and severall other witnesses of the sum of sixtein shilling scots to each of the saids witnesses as horss men and Eight Shillings Scots to each of them who are footmen per diem And that from the Nynteinth day of November Jaj vic nyntie four to the tenth of December therafter being in all twentie two dayes Conforme to the saids Lords act of the date the […] day of […] Last by past, And that within ane Certaine Short space nixt after the Charge under the paine of rebellion and puting of the petitioner to the horne or paynding their goods therfore most wrongeously and unjustly primo because the Charge of horning given the petitioner and therwith produced under the hand of William Mcfarland messenger is generall and informall Not Condescending how many of the Chargers were horss or footmen nor upon the date of the saids Lords act and when the same was obtained, yea the petitioner Is Charged to make payment to the witnesses in generall whose names Is not exprest in the forsaid Charge of horning As the said Charge instantly would testifie Secundo the forsaid act was pronunced by the saids Lords against the petitioner parte in Andita Not proceeding upon a Citation but upon a Sumar petition Clandestinely given in against the petitioner when he was not within a hundred mylles of the City of Edinburgh For hade the petitioner hade gotten any Citiation or known of any such petition the petitioner would have alledged Likeas he does now alledge that he Cannot be Lyable to pay any expences to the saids witnesses Because ther being ane horrid murder Committed upon the persone of James Ewing the petitioners brother by William and John Masones in Foundarrach the petitioner did therupon Imediatly make application to the Shiref of Aberdeen got them Declared Fugatives and therafter the petitioner haveing apprehended the murderers They were Refined from me by William and John Gordon of Bellamar and not Content therwith the Saids William and John Gardens did Imediatly therafter Sease upon the petitioners poor brother the defuncts goods and geir without any order of Law keept and detaine the petitione prisoner took away the petitioners armes and Committed a great many other attorcious and Illegall acts, and the petitione having pursued them before ther Lordships for So great and manifast acts of oppressione the matter was by the saids Lords of privy Councill Remitted to the Lord Justice Clerk Sir John Maxuerll and others to examine witnesses hinc inde and after report the saids Lords in a full Councill upon the threttein day of December Jaj vic nyntie four years Decerned and Ordained the saids William and John Gardens of Ballamoir to pay to the petitione ane hundreth punds Scots of fyne for defraying the expences he hade been at in the proces and another hundreth pund for ther withdrawing and absenting themselves when the Sentance was pronunceing against them to be declared fugatives, But upon a Second applicatione made by them to the saids Lords they were appointed to Crave pardon upon ther knees Wherby the hundreth punds Decerned for Continuance was Remitted to them, But adhered to that part of the interloquitor appointing them to pay to the petitioner ane hundreth pund And Ordained them to goe to prisone untill it were done As the extract or Just double of the petitioners decreet therwith produced would testifie From all which it Clearly instructed to the saids Lords that the petitioners proces was both relevant and proven against the saids William and John Gardens and they fined upon the accompt of the saids Severall oppressions, And the fyne being but ane hundred pund scots was truly bestowed by the saids Lords for the petitioners own particular trouble and expence in the said proces And the defenders who Succumbed in the action ought in Law equitie and reason and Conforme to the saids Lords Constant Custome been ordained to pay the witnesses expences, And all of them were so Conscious therof That albeit this proces was depending in December Jaj vic nyntie four, yet they never applyed to the saids Lords for expences till June or Jully Last when the matter was then forgott by most part of the saids Lords number and hade the forsaids defences been proponed for the petitioner prima instantia They would certainly have assoylzied the petitioner from the desire of the forsaid petition And being now proponed Secunda instantia It was hoped the saids Lords would receive the Same for this poor boy by way of Suspensione And so the saids Lords might Justly perceive etc And Seing he was not in a Conditione to find Suficient Caution for the forsaid soumes he was Content to discuss the reasones upon the bill before the saids Lords Or Otherwayes that the saids Lords would be pleased to pass this Suspensione without Cautione And Therfore etc the forsaid letters and Charge ought to be Suspended etc And Therfore Humbly Craving the saids Lords would Grant letters for Sumonding the saids Chargers To have Compeired before the saids Lords at ane Certaine day now bygone Bringing with them the forsaid act To have been seen and Considered be the saids Lords And to have heard and Seen the same Suspended upon the said Suspender in all time comeing for the reasones and Causes forsaid and others As in the said bill of Suspension at more length is Contained The Lords of his Majesties privy Councill Having Considered the forsaid bill of suspension given in to them be the said poor William Even in Cantullich against Garden and other witnesses Togither with the verball report of the Committie of privy Councill to whom the same was Remitted They hereby Suspend the letters and Charges raised at the instance of the Chargers against the Suspender Simpliciter upon the said Suspender in all time comeing Reserving allwayes to the Chargers to insist against William and John Gardens of Bellamores elder and younger defenders in the proces wherin the Chargers were cited as witnesses for ther expences as accords in law.

Edinburgh Tusday the 26th day of November 1695

D1695/11/261

Decreet

Decreit Suspending the letters Ewan against Garden and others

Anent the bill of suspension given in to the Lords of his majesties privy Councill be the poor boy William Ewing in Contullich Making Mentione That wher he was Charged with letters of horning to make payment to James Garden of Ballastrin John Gordon of Borland Alexander and Robert Farquharsone now of Bellamair, Alexander Simpson in Brydend of Glentaner Donald Farquharson of Cobltoune William Dundan at the milne of Brace lyne George Lessly at the milne of Dunatie, John Shaw in Bognagugall and Alexander Shaw ther and severall other witnesses of the sum of sixtein shilling scots to each of the saids witnesses as horss men and Eight Shillings Scots to each of them who are footmen per diem And that from the Nynteinth day of November Jaj vic nyntie four to the tenth of December therafter being in all twentie two dayes Conforme to the saids Lords act of the date the […] day of […] Last by past, And that within ane Certaine Short space nixt after the Charge under the paine of rebellion and puting of the petitioner to the horne or paynding their goods therfore most wrongeously and unjustly primo because the Charge of horning given the petitioner and therwith produced under the hand of William Mcfarland messenger is generall and informall Not Condescending how many of the Chargers were horss or footmen nor upon the date of the saids Lords act and when the same was obtained, yea the petitioner Is Charged to make payment to the witnesses in generall whose names Is not exprest in the forsaid Charge of horning As the said Charge instantly would testifie Secundo the forsaid act was pronunced by the saids Lords against the petitioner parte in Andita Not proceeding upon a Citation but upon a Sumar petition Clandestinely given in against the petitioner when he was not within a hundred mylles of the City of Edinburgh For hade the petitioner hade gotten any Citiation or known of any such petition the petitioner would have alledged Likeas he does now alledge that he Cannot be Lyable to pay any expences to the saids witnesses Because ther being ane horrid murder Committed upon the persone of James Ewing the petitioners brother by William and John Masones in Foundarrach the petitioner did therupon Imediatly make application to the Shiref of Aberdeen got them Declared Fugatives and therafter the petitioner haveing apprehended the murderers They were Refined from me by William and John Gordon of Bellamar and not Content therwith the Saids William and John Gardens did Imediatly therafter Sease upon the petitioners poor brother the defuncts goods and geir without any order of Law keept and detaine the petitione prisoner took away the petitioners armes and Committed a great many other attorcious and Illegall acts, and the petitione having pursued them before ther Lordships for So great and manifast acts of oppressione the matter was by the saids Lords of privy Councill Remitted to the Lord Justice Clerk Sir John Maxuerll and others to examine witnesses hinc inde and after report the saids Lords in a full Councill upon the threttein day of December Jaj vic nyntie four years Decerned and Ordained the saids William and John Gardens of Ballamoir to pay to the petitione ane hundreth punds Scots of fyne for defraying the expences he hade been at in the proces and another hundreth pund for ther withdrawing and absenting themselves when the Sentance was pronunceing against them to be declared fugatives, But upon a Second applicatione made by them to the saids Lords they were appointed to Crave pardon upon ther knees Wherby the hundreth punds Decerned for Continuance was Remitted to them, But adhered to that part of the interloquitor appointing them to pay to the petitioner ane hundreth pund And Ordained them to goe to prisone untill it were done As the extract or Just double of the petitioners decreet therwith produced would testifie From all which it Clearly instructed to the saids Lords that the petitioners proces was both relevant and proven against the saids William and John Gardens and they fined upon the accompt of the saids Severall oppressions, And the fyne being but ane hundred pund scots was truly bestowed by the saids Lords for the petitioners own particular trouble and expence in the said proces And the defenders who Succumbed in the action ought in Law equitie and reason and Conforme to the saids Lords Constant Custome been ordained to pay the witnesses expences, And all of them were so Conscious therof That albeit this proces was depending in December Jaj vic nyntie four, yet they never applyed to the saids Lords for expences till June or Jully Last when the matter was then forgott by most part of the saids Lords number and hade the forsaids defences been proponed for the petitioner prima instantia They would certainly have assoylzied the petitioner from the desire of the forsaid petition And being now proponed Secunda instantia It was hoped the saids Lords would receive the Same for this poor boy by way of Suspensione And so the saids Lords might Justly perceive etc And Seing he was not in a Conditione to find Suficient Caution for the forsaid soumes he was Content to discuss the reasones upon the bill before the saids Lords Or Otherwayes that the saids Lords would be pleased to pass this Suspensione without Cautione And Therfore etc the forsaid letters and Charge ought to be Suspended etc And Therfore Humbly Craving the saids Lords would Grant letters for Sumonding the saids Chargers To have Compeired before the saids Lords at ane Certaine day now bygone Bringing with them the forsaid act To have been seen and Considered be the saids Lords And to have heard and Seen the same Suspended upon the said Suspender in all time comeing for the reasones and Causes forsaid and others As in the said bill of Suspension at more length is Contained The Lords of his Majesties privy Councill Having Considered the forsaid bill of suspension given in to them be the said poor William Even in Cantullich against Garden and other witnesses Togither with the verball report of the Committie of privy Councill to whom the same was Remitted They hereby Suspend the letters and Charges raised at the instance of the Chargers against the Suspender Simpliciter upon the said Suspender in all time comeing Reserving allwayes to the Chargers to insist against William and John Gardens of Bellamores elder and younger defenders in the proces wherin the Chargers were cited as witnesses for ther expences as accords in law.

1. NRS, PC2/26, 35v-37v.

1. NRS, PC2/26, 35v-37v.