Tag Archives: October

Decreet, 2 October 1696, Edinburgh

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Att Edinburgh the second Day of October Jaj vic nyntie six yeirs

D1696/10/31

Decreet

Decreit Aeneas Mclaud against The magistrats of Edinburgh

Anent The lybell or Letters of Complaint raised intented and persewed befor the Lords of his majesties privie Counsell at the instance of Aeneas Mclawd towne clerk of Edinburgh with concourse of Sir James Stewart his majesties advocat for his highnes interest in the mater wnderwritten Makeing Mentione That wher by the Lawes and inviolable practise of this and all other well governed nationes The contempt of authoritie exercised by the Lords of Counsell and Sessione And the Judgeing in causes or maters advocat from all inferior Judicatories by our Saids Lords of Sessione Dwely intimated And the Sumar invasione of privat right by depriveing a clerk of his office provide to him dureing all the dayes of his life Speciallie wher the Same is Done by a Judiciall act of the pwnishment of a pretended cryme but void of all the due formes of Law als well as materially Justice as wher a Sentance of Deprivatione is pronunced without ane ansuer a lybell or process or any maner of delay But all precipitantlie Done at one dyet by way of Surprize upon the clerk efter privat expiscationes and concert among upon the office of a clerk whose office and right Doeth Stand good and valid Are ryots and crymes of ane high nature and Severely pwnishable by the Lawes and inviolable practises of this and all other well governed nationes Nevertheles it is of veritie That Sir Robert Cheiselie proveist of Edinburgh James Bowden George Warrander Patrick Johnstowne and Mr Hew Linn Baillies John Robertsone Dean of gild Patrick Thomsone Thesaurer Patrick Halyburtowne old provost George Home Archbald Rwle Adam Browne and Samwell Mclelland old Baillies Hew Blaire old Dean of gild John Dwncan old thessaurer John Ritchie Mr William Spence John Miller William Livingstowne John Lethem Councellors Alexander Monteith conveener Mr John Borthick nightman William Clerk Charles Hay George Dallgleish Gilbert Hyndsaw Alexander Gowdielocks and John Hendry Deacons Are gwiltie or airt2 and pairt of the foirsaids crymes in so farr as the said Complainer haveing a liferent gift of the Clerkship of Edinburgh for which he payed a greate Soume of money by the knouledge and allowance of the magistrats for the tyme A Succeeding magistracie or Counsell designeing to brangle the Complainer lifrent gift by one method or other did expiscat certaine pretended maleversationes and did represent him as a verie gwiltie and negligent clerk to the parliament Jaj vic nyntie five Craveing that his maleversationes might be cognosed and Determined in parliament but at the Same tyme it was urged that the decisione of the magistrats Complaint Should be remitted to themselvs which the parliament found not Just But remitted the Same to the Lords of Sessione the saids magistrats perfitely knoweing that non of the pretended maleversationes charged against the Complainer would be Sustained by any other Judge thew themselvs they never insisted befor the Lords But did expiscat new pretences And were then so bountifull as to allow the complainer ane day to ansuer in which tyme he prepared his ansuers and upon them did readiely obtaine ane advocatione to the Lords of Sessione In which he differed to Debate SUmmarlie without the order of the roll The magistrats insisted no furder in that Second complaint But they resolved upon another more summar method to work the Same effect Viz upon pretence of regulatione to take inspectione of records and warrands and expiscat new crymes And a Committie being appointed the complainer did verie well understand that he was to be summarly deprived without any processes at all wherupon he applied to The Lords of Sessione Representing the malice of the present magistrats and Counsell that he had raised a declarator of right to his office and to the dwes therof And that he could onlie be tryed in a legall formall maner And therfore desyreing that the Lords would advocat all furder procedure from the magistrats as Judges Suspected and incompetent And especiallie that they should be discharged from furder procedure or cognosceing of maleversationes And ane advocatione was past upon report in presentia Expresslie prohibiteing the magistrats from all furder cognosceing of the Complainers maleversationes The Saids defenders the present magistrats did not relent But being restrained from executeing ther malice fullie by depriveing the Complainer they Did by all means incroach upon his Just caswalitie and invade his office and trwst, And particularlie the clerk of Edinburgh being in wse to receave a gratificatione from the tacksemen at the subscribeing of Edinburgh tacks And haveing by ther office the trwst of Seeing the tacksemen Subscribe and of adhibiteing his own Subscription for the rest of the Comone Counsell besydes the magistrats This Small perqwisite was envyed And the towne thesaurer by the Command and allowance of the Cowncell and in ther presence did take up ten or Eleven tacks of the Comoune good sett in october Last so soone as they were Subscribed by the magistrats and did privately in his own chamber obtaine the subscriptione of the tacksemen without calling the clerk to be present that he might sie wittnesses signe and adhibitie his own Subscriptione for the Commwnitie which Subscriptione he durst not adhibite befor the tacksemen had Signed Because Sir William Thomsone the Complainers predecessor his cryme for which he was deprived was noe other but that he adhibite his own Subscriptioned and Suffered the tack to goe owt of his hand without Seing the tacksemen Subscribe And efter this wnjwstifieable invasione of the clerks office the Thesaurer keeped up all the saids tacks from the moneth of October to Jullie Last And then he did not putt them in the Complainers hand nor in the hands of any that depended upon him But delivered them to the Servant of his depute whose deputatione is imediatly by ane act of Councell from the towne and the complainer was never So much as informed or advertised wher they were till they were produced by that servant in Counsell and four of these tacks remaine in the Thesaurers hands to this day All these injuries and indignities and many more were patiently and Silently receaved But atlast the magistrats atleast Some of them being fullie determined that right or wrong the Complainer mwst once be dispossest efter all expiscatione and injurie ther was no better pretence fownd then to charge the wnjustice and incroachment upon his office as a cryme and maleversatione upon the clerk And because the thesaurer tooke up these tacks and caused Signe them privatelie by the tacksemen without adhibiteing wittnesses or advertiseing the clerk to Signe and Sie the formalities observed therfore the Clerk was deprived If the complainer had Signed for the Commwnitie as Sir William Thomson did befor the tacksemen Subscribed He would have bein deprived for that But now he is deprived because he did not Signe and Did evite the Scarecrow upon which his predicessor was verie Summarlie and Severly pwnished which Sentance of deprivatione was pronunced upon the fourth of September instant without ane ansuer with out a process with out allowing ane houres delay to consider Notwithstanding it was made appeare to the Counsell that the tacks had bein taken up by the Thesaurer And privatlie Signed in his chamber without the ordinarie wittnesses And that the towne nether was nor possible could be prejudged Because these tacksemen according to wse did allwayes Subscribe minwts beareing the termes and Substantialls of the tack And to compleat the act of deprivation they proceeded to name James Stewart Advocat And for preventing all meanes of full vindicatione And to inable them to twrne the grounds of ther pretendit maleversationes in what Shape they pleased they have discharged the wnder clerk to allow him a double of his Sentance And have taken up the whole minwts of that Journall and procedoure And the saids defenders the magistrats and Councill have upon the […] day of September instant elected Mr John Murray Jwnior advocat conjunct Clerk with the said James Stewart And therfor the said James Stewart and Mr John Murray owght to be discharged to enter upon or exerce the said office of towne clerk of Edinburgh And the Defenders the magistrats of Edinburgh owght to be discharged to admitt or receave the said Mr James Stewart or Mr John Murray and ought to be ordained to repossess the Complainer and to desist from troubleing and molesting him in his possessione in all tyme comeing and from cognosceing3 or determineing any maleversatione of the Complainers otherwayes then by by4 process befor the Lords of Sessione as being Become Judges Suspected by ther former contempts and iniquity done Conforme to the advocationes to the Lords of Sessione And the defenders ought to be decerned in payment of the Soume of […] of Damnadge and expensses alreadie Sustained without prejudice allwayes of the said Complainers process for declaireing his right to his office And that the defenders are lyable to all future damnadges to be Sustained as accords And that they owght to be furder pwnished in ther persones and goods to the terror of others to comitt the lyke in tyme comeing And Anent the charge given to the Saids defenders to have Compeared personallie befor the Saids Lords of privie Cownsell at ane certane Day now bypast to have ansuered to the grounds of the foirsaid lybell or complaint And to have heard and Sein Such order and course taken theranent As the Saids Lords Should think fitt wnder the paine of rebellione and putting of them to the horne As the Saids Letters with the executiones therof at more length proports Which lybell or Letters of complaint being upon the threttie day of September Last bypast moved in presence of his Majesties high Commissioner And the Saids Lords of his majesties privie Counsell the same was not called But his majesties Commissioner and Counsell Recommended to a Committie of ther own number to call for and hear both pairties and endeavoure to Setle and agrie them And in caise of Difficultie to report to The Counsell this day And the Comittie haveing this day reported to the Counsell that they had mett with both pairties But could not bring them to ane agriement And therupon the said Lybell or Letters of complaint being called And the persewer Compeareing personallie with Mr Hew and David Dallrimples Mr David Cwningham and Mr David Forbes his Advocats And the said Sir Robert Cheiselie being absent in respect of his present indispositione And the four present baillies present Dean of Gild and present thesaurer and the said Mr James Stewart and Mr John Murray with Severall others of the defenders Compeareing also personallie with Sir James Stewart his majesties Advocat and Sir Patrick Home his majesties Sollicitor advocats for the haill defenders The lybell togither with the ansuers given in therto for the maigstrats of Edinburgh efter insert viz that the said Aeneas haveing raised a Complaint against the magistrats which resolves all in this that he haveing a liferent gift to the clerkshipe of Edinburgh And being formerlie persewed for Severall maleversationes of which actione he had raised Advocatione to the Lords of Sessione And yet notwithstanding contracted to the said Advocationes the magistrats proceeded to deprive him And that the ground of his deprivatione was that he had neglected to adhibite wittnesses to severall tacks of the townes Comoune good albeit he could not doe it the towne thesaurer haveing taken up the tacks and that the magistrats had named other two clerks in his place And therfore craved that the saids two clerks elected may be discharged to exerce the office and that he might be repossest in the samen And the magistrats may be discharged from cognosceing any of his maleversationes in tyme comeing and to be lyable to him for damnadges The magistrats befor they make any particular ansuer to the grounds of the Complaint Humblie craves Leave to represent to ther Lordships the nature of the office of Clerkshipe of Edinburgh And the trwe mater of fact as to the procedure of his deprivatione which was this That the clerk of Edinburgh being the townes Servant that office was allwayes at the townes disposeall as it is in all other burrows of the natioune and the townes power of ordering the clerk and disposeing of that office was allwayes So farr acknowledged that albeit ther hes bein gifts therof givin Dureing life And that clerks had sometyme continued from father to son to severall generationes they allwayes considered ther deportment and office they injoyed So absolwtelie in the townes power that it was the custome at everie electione yeirlie of the magistrats to lay ther gift upon the table in testimonie of ther Submissione and not to take it up againe without the towne Counsells allowance and which was the ordinary practise till of Late that the deceast Sir James Rochead Last clerk haveing resigned the office in favors of himself and the said Aeneas And the Longest Liver of them two he by the favour and interest he had by the then magistrats obtained Severall acts of the towne Counsell obleidgeing the towne to a number of most wnjust extravagant conditiones And appointing many most wnwswall formes of process to be observed, befor the clerk could be called to any accompt for any maleversatione And to make all Sure he procures these acts of Counsell to be insert as conditions and qwalities in the gift And the towne finding themselvs thws fetterred with Swch wnjust restrictiones they applyed to the Last Sessione of parliament and procured all the Saids acts of the towne Counsell and these extravagant qwalities to be rescinded and remitted the townes petitione As to Aeneas his maleversationes with the ansuers to the Lords of Sessione to be Sumarly Discwst The magistrats being thws frie of the wnjust restrictiones and Limitationes that were Laid upon them by the clauses that were in Aeneas gift And restored to the frie exercise of that power of cognosceing upon the clerks maleversationes and ther being severall other complaints against him which are not contained in the townes petitione to the parliament And considering that to prosecute the process that was remitted to the Lords of Sessione would be both tediows and expensive It was thought better that Should be perswed before themselvs for these new maleversationes upon which ther was a complaint raised against him at the instance of the townes procurator fiscall And he being Sensible of his own gwiltienes and knowing verie well that he could not but be Deprived for these maleversationes no Sooner was these new articles exhibite against him but within few houres therefter he raised ane Adovcatione to the Lords of purpose onlie to putt at Stopp to the towne Counsells procedure att the tyme The Said Aeneas being gwiltie of Severall other maleversationes besydes these that were aither contained in the petitione to the parliament or in the other complaint at the instance of the townes procurator fiscall And particularlie that albeit by the nature of his office as clerk when tacks are granted for the townes Commowne good he Signes for the Comwnitie and ought to adhibite wittnesses to the tacks yet he did so farr grosslie maleverse in that pairt of his office that ther being Eleven Severall tacks of Late Sett of Severall pairts of the townes Comoune good He neglected to adhibite wittnesses to the saids tacks nor did he Signe any of them as clerk for the Comwintie except one And this being so gross a negligence and maleversatione And being instantly instructed by productione of the tacks the towne Counsell Did most Justlie deprive the said Aeneas of the office of clerkship and estaiblished other clerks in his place This being a trwe and Succinct accompt of the caise and the magistrats procedure in that affaire they make these following ansuers to the particulars lybelled And first wheras it is alleadged That the magistrats in ther petitione to the parliament craved that ther complaint Should be remitted to themselvs which the parliament found not Just but remitted the Same to the Lords of Sessione This is absolutelie callummows for it is evident by the conclusione of the townes petitione ingrossed in the act of parliament That all they craved was that they being bownd up by the foirsaids acts and extravagant qwalities of the said Aeneas his gift which they themselvs could not take away Therfore the parliament Should both take tryell of the maleversationes objected and rescind these wnjust acts in tyme comeing which was accordinglie Done And if it had not bein that the parliament was taken up with the publict affairs of the kingdome they had at that tyme discust the clerk als well as they rescinded these wnjust acts and qwalities insert in his gift Secundo wheras it is alleadged that the magistrats upon pretence of regulatione haveing taken inspectione of the records and warrands to expiscatt new crymes And a Committie being appointed for that effect the said Aeneas made applicatione to the Lords of Sessione and obtained ane advocatione Dischargeing the magistrats of all furder cognitione of the Said Aeneas maleversationes and yet they proceeded Sumarlie to Deprive him of his office notwithstanding of the Said Advocatione It is ansuered primo That albeit the towne Counsell might verie Justlie have appointed a Committie to enqwyre anent the clerks maleversationes seing ther was a great daile of clamoure against him But it is absolutely callummows that they appointed any Comittie at that tyme for enqwyreing into the saids maleversationes But all they Did was to appoint a comittie to consider the Dwes of the clerks chamber And how far the dwes exacted by the clerk and his servants did agrie with the Last table made by the Counsell anent the clerks Dwes and to report as appears by the act But he being consciows to himself that he could not ansuer for his wnjust exactiones He imediatlie upon the townes appointing the foirsaid Comitie to take tryell as to the dues raised the foirsaid advocatione Secundo the said Advocatione was raised upon a lybell made up by the said Aeneas himself for he gott no such lybell at that tyme when he raised the Last advocatione as therin narratted And it were a verie assured thing to pretend that if any persone Should make up a lybell at his own hand and therupon raise ane advocation albeit ther were never Such ane actione intended that this Should Stopp the procedure of all inferior Judges that when the other pairtie Should raise a lybell upon that mater contained in the advocatione that the raiser of the advocatione hes made up at his own hand for if that were allowed it would be a compendiows way to Stopp all procedure befor inferior courts for when ever any persone had the least Suspitione that ane other pairtie was goeing to perswe ane actione against him he would presentlie make up ane lybell and raise ane advocatione of purpose to Stopp all procedure before inferior courts So that by these meanes inferior courts would Signifie nothing at all then which ther can be nothing more unjust and absurd Tertio albeit the Advocatione raised upon that made up lybell doeth advocat the cognosceing of maleversatioens als well as the clerks Dwes yet that can never be wnderstood of any other maleversationes But these for which he Stood actwallie accused for the tyme And it were the height of nonsense to assert that wher a pairtie is accused of severall crymes and maleversationes and raises advocatione as to maleversationes in generall that such ane advocatione can be understood to comprehend all other crymes and maleversationes besyde these contained in the Speciall accusatione As for instance of any Should be perswed befor inferior Courts for Severall acts of theft robberie or Slaughter And the defender Should raise advocatione mentioning that he is persewed for theift robberie and Slaughter in generall it were ridiculous to pretend that Such ane Advocatione could extend to any other Speciall act of theift robberie or Slaughter but these for which the defender Stood actually accused And this holds also in civill actiones when ther is ane advocatione raised efter that maner And the reasone is plainelie this that nothing can be understood to be advocat but what is deduced in Judgement And if it were otherwayes the effect of Such ane Advocatione Should be absolutelie to exauctorat the inferior Judge and deprive him altogither of his office or Judgeing upon the persone or any actione concerning him als he be Subject to the Jurisdictione, which were absurd to imagine And therfor Seing the maleversationes for which the Said Aeneas was now deprived were absolutelie new and non of these for which he was accused befor the raiseing of the advocatione they can never be understood to fall under the advocatione And conseqwentlie the towne Councell did nowayes contemne the Lords of Sessiones authoritie in proceeding to cognosce upon these other maleversationes and Depriveing ther clerk for the Same Qwarto the towne Councell did verie Justlie proceed Summarlie to deprive him because the towne by the late act of parliament being reponed to ther antient rights and power which they had over ther clerk they might verie Laufullie proceed Sumarlie against the said Aeneas which hes bein the ordinarie practice of the towne Counsell in Such caices And particularlie in Sumarlie depriveing of Sir William Thomsone which was approven by a decreit of the Lords of Sessione in foro And also in the caice of Sir James Rochead and non of them when they were accused befor the toune Counsell for ther maleversationes so much as ever offered to raise ane Advocatione It is trwe Sir William Thomsone persewed a reductione of the Sentance against him befor the Lords of Sessione And one of the reasones was that he was Sumarlie deprived without lybell or citatione but this reasone als well as all his other reasones of reductione were repelled and the towne Counsells Sentance of Sumar deprivatione was Sustained And Sir James Rochead nether raised advocatione or perswed reductione but frielie Submitted to the Sentance and never applyed to any other Judge to be reponed to his office but onlie to the towne Counsell whom he verie well knew was his propper Judges As also it is the ordinarie practice of other townes in the kingdome Summarlie to deprive ther servants upon maleversatione And is ordinarie for the Lords of Sessione Sumarlie to deprive advocats and clerks upon maleversationes comitted by them deserveing Deprivatione As also burgesses of royall burghs may be and many times are Sumarlie deprived of ther friedome and ther burges tickets taken from them and torne for maleversationes Comitted by them against the towne and certaine Mr Mclaud could have no better right to his office by vertue of his gift then a burges hes to his freedome by a burges ticket So if any burges freedome which he hes not onlie Dureing life but transmitts the benefite therof to his childrein And yet may be Sumarlie taken from him upon Just grownds much more may the towne clerk be deprived of his office Summarlie for maleversations Deserveing deprivatione especiallie when instantlie instrwcted and verified as was in this caise Wheras it is alleadged that the said Aeneas could not have bein Justlie deprived for not Subscribeing the tacks for the Comwnitie and not adhibiteing wittnesses to the Samen Because he could not Signe for the Comwnitie befor the tacksemen had first Subscribed the tacks And it was a cause of Sir William Thomsones deprivatione that he had Subscribed the tacks for the Comwintie befor the tacksemen Subscribed the Samen And that it could not be imputed to him that ther was not wittnesses adhibite to the tacks because the towne Thesaurer did take up all the Eleven tacks of the Comowne good and privatlie obtaine the tacksemens Subscriptione to the Samen without calling the clerk to be present or makeing wse of the ordinarie wittnesses to the tacks And if ther was any neglect in the affaire yet the towne had no prejudice Because the tacksemen had Signed the roupe which would obleidge them It is ansuered primo that it is evident by the lybell that upon the mater the said Aeneas acknowledges as is most certaine that he by vertue of his office Should have both Subscribed for the Comwnitie and Sein that wittnesses was adhibite to the tacks And indeed the townes Securitie is upon ther clerks Subscribeing to the Comwnitie and adhibiteing of Subscribeing wittnesses Secundo It is ane absolwte mistake to alleadge that Sir William Thomsone was deprived for Subscribeing for the Comwnitie befor the tacksemen Subscribed for the principall grownd of Sir William Thomsones Deprivatione was that he had given up the tack to the tacksemen and that he had nether taken ther Subscriptione to that Double nor another Double for the townes wse And it is most certaine that the Comowne practice in Such caises is that imediatlie when the magistrats signs the tacks the clerk Signes the Same for the Commwnitie And this compleats the tack as to the pairt so that it was certainlie a gross maleversatione in the clerk to neglect to Signe the tacks for the Comwnitie efter the magistrats had Signed the Same for befor he Subscribe for the Comwnitie it was not a compleat tack on the townes pairt And so might have bein qwestioned by the tacksemen and upon that ground migh5 have pretended to have bein frie Tertio albeit the towne Thesaurer had taken up the tacks sometyme efter the magistrats Subscribed the Same which he might verie Laufullie have Done in order to Sie the tack dueties and the names of the tacksemen and ther Cautioners Duelie filled up And if he procured the tacksemen and ther Cautioners to Signe the tacks it was onlie to ease the clerk of pains in seeking of ther hands And for the better dispatch of the townes bussines But this does nowayes Liberat the clerk from the duetie incumbent to him by his office which was to have Subscribed the tacks himself for the Comunitie And to have Sein wittnesses adhibite to the tacks which otherwayes were null in Law Qwarto it can never Liberat the clerk that the Thesaurer Did take up the tacks because he Did not keep them above a fourtnight in his hand haveing kept them no longer then he gatt Some of the tacksemen and Cautioners hands to them And imediatlie therefter gave them be the clerks chamber and left them in the hands of one Alexander Simpsone who is a writer in the chamber and ane under Servant Depending upon the clerk Qwinto the said Aeneas being conscious to himself he was obleidged to Signe for the Commitie after the magistrats ther is one of the Eleven tacks he So Signs and if he thought himself obleidged by his office to Signe any of them certainlie it was a gross neglect in him not to Signe the rest Exto It is ane absolwte mistake to alleadge that the ordinarie wittnesses were not made wse of for the two comoune wittnesses viz Mr James Nasmith clerk depute and Alexander Simpson the writer of the tacks are the Subscribeing wittnesses insert who being allwayes present it was a most Supine neglect in the clerk not to have taken caire that these ordinarie wittnesses Should have Subscribed as wittnesses to the tacks Septimo albeit the thesaurer had neglected to cause wittnesses Subscribe to the tacksemens Subscriptiones yet it was still the clerks pairt to have gotten that Supplied Seing it was als easie for him to have caused the pairties declaire ther Subscriptiones befor the wittnesses insert as to have caused them Subscribe befor the wittnesses from the beginning Octavo the towne hes ane evident prejudice by the clerks not haveing gotten wittnesses adhibite to the tacksemens Subscriptions Because the tacks for want of wittnesses are absolutelie null as said is And the tacksemen Subscribeing the minwte of roupe is not Sufficient because it is onlie bwt a memoriall and not at all probative being Subscribed without witnesses And at best it is but a ground of actione wheras a tack beareing registratione present executione may be wsed upon it But however Seing the Counsell according to Law and constant custome being in wse to Sett tacks And which are absolutelie necessar ther being more clauses in ane extended tack then in a Short minwte of roupte It was Supine negligence and a gross maleversatione in the clerk to omitt to Subscribe for the Comwnitie ten of the tacks And as to all of them did omit to adhibite wittnesses Wheras it is alleadged that the two clerks elected by the towne Counsell in the said Aeneas his place ought to be discharged and he reponed againe to his office It is ansuered first that the said Aeneas being Justlie deprived and other two clerks being legallie Setled in his place they cannot be dispossest and the said Aeneas reponed to the office next the said Aeneas being deprived of the office by the towne Counsell who are competent Judges the qwarrelling of that Sentance was propperlie a mater of civill right And only competent to be cognosced by the Lords of Sessione especiallie ther being no violence wsed in the case As for instance if any inferior Judge Should pass a Sentance for a debt or decerne any persone Sumarlie to be removed and determine in any other civill right and to bring it preciselie to the case in hand if any inferior Judge Should decerne in a mater efter advocatione is produced albeit the Subject mater was Speciallie advocat as is not in this case yet it were absurd to pretend nether ever was it heard of that Such decreits and Sentances Should be qwarrelled befor the privie Counsell But the legall method is to persue reductione of such sentances befor the Judge ordinarie And if it were otherwayes then the reductione of all Sentances past by inferior Judges which for the most pairt are ordinarly qwestioned upon that ground that the Sentance was wrongouselie past Should be brought befor the privie Counsell which never any persone that had the knouledge of the first principalls of Law So much as ever pretended Left the Said Sentance of deprivatione be what it will Just or unjust it being past by a competent Judge and in a civill mater it cannot be otherwayes qwestioned or taken away but by the Judge ordinar And not onlie the Said Aeneas is gwiltie of the Saids maleversationes for which he was most Justlie deprived but of many others and his maleversed in6 everie pairt of his office As first by neglecting and Leaveing the registers wnfilled up for not onlie moneths but many yeirs As also he did altogither omit very necessary pairts of the records Such as the Jedges and warrands and keeping the minwts and warrands of other registers whollie in confwsione Secundo by recording some acts of Counsell most confwsedly and indistinctly as also falselie as will appear by occullar inspectione Tertio by breakeing the trwst the towne reposed in him as to ther own vassalls Qwarto by giveing out Decreits of the towne Counsell without any warrand Qwinto by his despiseing and contenuing of the orders of the Counsell in face of Councell Sexto that he being but a Servant yet he did take upon him the confidence most reproachfullie and falseie to reflect upon the magistrats and Counsell both in his publict discourses and printed papers Septimo his insufficiencie and incapacitie to be clerk is notourelie knowen and many others more fullie and particularlie contained in the lybell against him which is depending befor the Lords of Sessione And if the town Councill had not good reasone to frie themselvs of such a clerk by all the Just methods they could your Lordship may easiely Judge And therfore Seing the said Aeneas Stands deprived by the Sentance of a competent Judge and that ther are other clerks now setled in his place and actwallie exerceing the magistrats and towne Counsell owght to be assoilzied from this groundles complaint And if the Said Aeneas conceave himself to be prejudged by that Sentance he owght to be left to persue a reductione therof befor the Judge ordinarie According to the Comoune course of Law in Such caices Being both read in presence of7 His Majesties High Commissioner and Lords of privie Counsell And both pairties Lawiers being fullie heard His majesties high Commissioner And the Lords of his majesties privie Counsell haveing considered the lybell and ansuers made therto and haill debate theron They have remitted and heirby remits the point of right to the Lords of Sessione And Discharges the Said James Stewart and Mr John Murray to exercise the said office of towne clerk of Edinburgh And decernes and ordaines the saids magistrats of Edinburgh to repossess the said Aeneas Mcleod persewer in the said office of towne clerk of Edinburgh And ordaines Letters of horning on fiftein dayes and other executorialls needfull to be direct hereupon in forme as effeirs

Att Edinburgh the second Day of October Jaj vic nyntie six yeirs

D1696/10/31

Decreet

Decreit Aeneas Mclaud against The magistrats of Edinburgh

Anent The lybell or Letters of Complaint raised intented and persewed befor the Lords of his majesties privie Counsell at the instance of Aeneas Mclawd towne clerk of Edinburgh with concourse of Sir James Stewart his majesties advocat for his highnes interest in the mater wnderwritten Makeing Mentione That wher by the Lawes and inviolable practise of this and all other well governed nationes The contempt of authoritie exercised by the Lords of Counsell and Sessione And the Judgeing in causes or maters advocat from all inferior Judicatories by our Saids Lords of Sessione Dwely intimated And the Sumar invasione of privat right by depriveing a clerk of his office provide to him dureing all the dayes of his life Speciallie wher the Same is Done by a Judiciall act of the pwnishment of a pretended cryme but void of all the due formes of Law als well as materially Justice as wher a Sentance of Deprivatione is pronunced without ane ansuer a lybell or process or any maner of delay But all precipitantlie Done at one dyet by way of Surprize upon the clerk efter privat expiscationes and concert among upon the office of a clerk whose office and right Doeth Stand good and valid Are ryots and crymes of ane high nature and Severely pwnishable by the Lawes and inviolable practises of this and all other well governed nationes Nevertheles it is of veritie That Sir Robert Cheiselie proveist of Edinburgh James Bowden George Warrander Patrick Johnstowne and Mr Hew Linn Baillies John Robertsone Dean of gild Patrick Thomsone Thesaurer Patrick Halyburtowne old provost George Home Archbald Rwle Adam Browne and Samwell Mclelland old Baillies Hew Blaire old Dean of gild John Dwncan old thessaurer John Ritchie Mr William Spence John Miller William Livingstowne John Lethem Councellors Alexander Monteith conveener Mr John Borthick nightman William Clerk Charles Hay George Dallgleish Gilbert Hyndsaw Alexander Gowdielocks and John Hendry Deacons Are gwiltie or airt2 and pairt of the foirsaids crymes in so farr as the said Complainer haveing a liferent gift of the Clerkship of Edinburgh for which he payed a greate Soume of money by the knouledge and allowance of the magistrats for the tyme A Succeeding magistracie or Counsell designeing to brangle the Complainer lifrent gift by one method or other did expiscat certaine pretended maleversationes and did represent him as a verie gwiltie and negligent clerk to the parliament Jaj vic nyntie five Craveing that his maleversationes might be cognosed and Determined in parliament but at the Same tyme it was urged that the decisione of the magistrats Complaint Should be remitted to themselvs which the parliament found not Just But remitted the Same to the Lords of Sessione the saids magistrats perfitely knoweing that non of the pretended maleversationes charged against the Complainer would be Sustained by any other Judge thew themselvs they never insisted befor the Lords But did expiscat new pretences And were then so bountifull as to allow the complainer ane day to ansuer in which tyme he prepared his ansuers and upon them did readiely obtaine ane advocatione to the Lords of Sessione In which he differed to Debate SUmmarlie without the order of the roll The magistrats insisted no furder in that Second complaint But they resolved upon another more summar method to work the Same effect Viz upon pretence of regulatione to take inspectione of records and warrands and expiscat new crymes And a Committie being appointed the complainer did verie well understand that he was to be summarly deprived without any processes at all wherupon he applied to The Lords of Sessione Representing the malice of the present magistrats and Counsell that he had raised a declarator of right to his office and to the dwes therof And that he could onlie be tryed in a legall formall maner And therfore desyreing that the Lords would advocat all furder procedure from the magistrats as Judges Suspected and incompetent And especiallie that they should be discharged from furder procedure or cognosceing of maleversationes And ane advocatione was past upon report in presentia Expresslie prohibiteing the magistrats from all furder cognosceing of the Complainers maleversationes The Saids defenders the present magistrats did not relent But being restrained from executeing ther malice fullie by depriveing the Complainer they Did by all means incroach upon his Just caswalitie and invade his office and trwst, And particularlie the clerk of Edinburgh being in wse to receave a gratificatione from the tacksemen at the subscribeing of Edinburgh tacks And haveing by ther office the trwst of Seeing the tacksemen Subscribe and of adhibiteing his own Subscription for the rest of the Comone Counsell besydes the magistrats This Small perqwisite was envyed And the towne thesaurer by the Command and allowance of the Cowncell and in ther presence did take up ten or Eleven tacks of the Comoune good sett in october Last so soone as they were Subscribed by the magistrats and did privately in his own chamber obtaine the subscriptione of the tacksemen without calling the clerk to be present that he might sie wittnesses signe and adhibitie his own Subscriptione for the Commwnitie which Subscriptione he durst not adhibite befor the tacksemen had Signed Because Sir William Thomsone the Complainers predecessor his cryme for which he was deprived was noe other but that he adhibite his own Subscriptioned and Suffered the tack to goe owt of his hand without Seing the tacksemen Subscribe And efter this wnjwstifieable invasione of the clerks office the Thesaurer keeped up all the saids tacks from the moneth of October to Jullie Last And then he did not putt them in the Complainers hand nor in the hands of any that depended upon him But delivered them to the Servant of his depute whose deputatione is imediatly by ane act of Councell from the towne and the complainer was never So much as informed or advertised wher they were till they were produced by that servant in Counsell and four of these tacks remaine in the Thesaurers hands to this day All these injuries and indignities and many more were patiently and Silently receaved But atlast the magistrats atleast Some of them being fullie determined that right or wrong the Complainer mwst once be dispossest efter all expiscatione and injurie ther was no better pretence fownd then to charge the wnjustice and incroachment upon his office as a cryme and maleversatione upon the clerk And because the thesaurer tooke up these tacks and caused Signe them privatelie by the tacksemen without adhibiteing wittnesses or advertiseing the clerk to Signe and Sie the formalities observed therfore the Clerk was deprived If the complainer had Signed for the Commwnitie as Sir William Thomson did befor the tacksemen Subscribed He would have bein deprived for that But now he is deprived because he did not Signe and Did evite the Scarecrow upon which his predicessor was verie Summarlie and Severly pwnished which Sentance of deprivatione was pronunced upon the fourth of September instant without ane ansuer with out a process with out allowing ane houres delay to consider Notwithstanding it was made appeare to the Counsell that the tacks had bein taken up by the Thesaurer And privatlie Signed in his chamber without the ordinarie wittnesses And that the towne nether was nor possible could be prejudged Because these tacksemen according to wse did allwayes Subscribe minwts beareing the termes and Substantialls of the tack And to compleat the act of deprivation they proceeded to name James Stewart Advocat And for preventing all meanes of full vindicatione And to inable them to twrne the grounds of ther pretendit maleversationes in what Shape they pleased they have discharged the wnder clerk to allow him a double of his Sentance And have taken up the whole minwts of that Journall and procedoure And the saids defenders the magistrats and Councill have upon the […] day of September instant elected Mr John Murray Jwnior advocat conjunct Clerk with the said James Stewart And therfor the said James Stewart and Mr John Murray owght to be discharged to enter upon or exerce the said office of towne clerk of Edinburgh And the Defenders the magistrats of Edinburgh owght to be discharged to admitt or receave the said Mr James Stewart or Mr John Murray and ought to be ordained to repossess the Complainer and to desist from troubleing and molesting him in his possessione in all tyme comeing and from cognosceing3 or determineing any maleversatione of the Complainers otherwayes then by by4 process befor the Lords of Sessione as being Become Judges Suspected by ther former contempts and iniquity done Conforme to the advocationes to the Lords of Sessione And the defenders ought to be decerned in payment of the Soume of […] of Damnadge and expensses alreadie Sustained without prejudice allwayes of the said Complainers process for declaireing his right to his office And that the defenders are lyable to all future damnadges to be Sustained as accords And that they owght to be furder pwnished in ther persones and goods to the terror of others to comitt the lyke in tyme comeing And Anent the charge given to the Saids defenders to have Compeared personallie befor the Saids Lords of privie Cownsell at ane certane Day now bypast to have ansuered to the grounds of the foirsaid lybell or complaint And to have heard and Sein Such order and course taken theranent As the Saids Lords Should think fitt wnder the paine of rebellione and putting of them to the horne As the Saids Letters with the executiones therof at more length proports Which lybell or Letters of complaint being upon the threttie day of September Last bypast moved in presence of his Majesties high Commissioner And the Saids Lords of his majesties privie Counsell the same was not called But his majesties Commissioner and Counsell Recommended to a Committie of ther own number to call for and hear both pairties and endeavoure to Setle and agrie them And in caise of Difficultie to report to The Counsell this day And the Comittie haveing this day reported to the Counsell that they had mett with both pairties But could not bring them to ane agriement And therupon the said Lybell or Letters of complaint being called And the persewer Compeareing personallie with Mr Hew and David Dallrimples Mr David Cwningham and Mr David Forbes his Advocats And the said Sir Robert Cheiselie being absent in respect of his present indispositione And the four present baillies present Dean of Gild and present thesaurer and the said Mr James Stewart and Mr John Murray with Severall others of the defenders Compeareing also personallie with Sir James Stewart his majesties Advocat and Sir Patrick Home his majesties Sollicitor advocats for the haill defenders The lybell togither with the ansuers given in therto for the maigstrats of Edinburgh efter insert viz that the said Aeneas haveing raised a Complaint against the magistrats which resolves all in this that he haveing a liferent gift to the clerkshipe of Edinburgh And being formerlie persewed for Severall maleversationes of which actione he had raised Advocatione to the Lords of Sessione And yet notwithstanding contracted to the said Advocationes the magistrats proceeded to deprive him And that the ground of his deprivatione was that he had neglected to adhibite wittnesses to severall tacks of the townes Comoune good albeit he could not doe it the towne thesaurer haveing taken up the tacks and that the magistrats had named other two clerks in his place And therfore craved that the saids two clerks elected may be discharged to exerce the office and that he might be repossest in the samen And the magistrats may be discharged from cognosceing any of his maleversationes in tyme comeing and to be lyable to him for damnadges The magistrats befor they make any particular ansuer to the grounds of the Complaint Humblie craves Leave to represent to ther Lordships the nature of the office of Clerkshipe of Edinburgh And the trwe mater of fact as to the procedure of his deprivatione which was this That the clerk of Edinburgh being the townes Servant that office was allwayes at the townes disposeall as it is in all other burrows of the natioune and the townes power of ordering the clerk and disposeing of that office was allwayes So farr acknowledged that albeit ther hes bein gifts therof givin Dureing life And that clerks had sometyme continued from father to son to severall generationes they allwayes considered ther deportment and office they injoyed So absolwtelie in the townes power that it was the custome at everie electione yeirlie of the magistrats to lay ther gift upon the table in testimonie of ther Submissione and not to take it up againe without the towne Counsells allowance and which was the ordinary practise till of Late that the deceast Sir James Rochead Last clerk haveing resigned the office in favors of himself and the said Aeneas And the Longest Liver of them two he by the favour and interest he had by the then magistrats obtained Severall acts of the towne Counsell obleidgeing the towne to a number of most wnjust extravagant conditiones And appointing many most wnwswall formes of process to be observed, befor the clerk could be called to any accompt for any maleversatione And to make all Sure he procures these acts of Counsell to be insert as conditions and qwalities in the gift And the towne finding themselvs thws fetterred with Swch wnjust restrictiones they applyed to the Last Sessione of parliament and procured all the Saids acts of the towne Counsell and these extravagant qwalities to be rescinded and remitted the townes petitione As to Aeneas his maleversationes with the ansuers to the Lords of Sessione to be Sumarly Discwst The magistrats being thws frie of the wnjust restrictiones and Limitationes that were Laid upon them by the clauses that were in Aeneas gift And restored to the frie exercise of that power of cognosceing upon the clerks maleversationes and ther being severall other complaints against him which are not contained in the townes petitione to the parliament And considering that to prosecute the process that was remitted to the Lords of Sessione would be both tediows and expensive It was thought better that Should be perswed before themselvs for these new maleversationes upon which ther was a complaint raised against him at the instance of the townes procurator fiscall And he being Sensible of his own gwiltienes and knowing verie well that he could not but be Deprived for these maleversationes no Sooner was these new articles exhibite against him but within few houres therefter he raised ane Adovcatione to the Lords of purpose onlie to putt at Stopp to the towne Counsells procedure att the tyme The Said Aeneas being gwiltie of Severall other maleversationes besydes these that were aither contained in the petitione to the parliament or in the other complaint at the instance of the townes procurator fiscall And particularlie that albeit by the nature of his office as clerk when tacks are granted for the townes Commowne good he Signes for the Comwnitie and ought to adhibite wittnesses to the tacks yet he did so farr grosslie maleverse in that pairt of his office that ther being Eleven Severall tacks of Late Sett of Severall pairts of the townes Comoune good He neglected to adhibite wittnesses to the saids tacks nor did he Signe any of them as clerk for the Comwintie except one And this being so gross a negligence and maleversatione And being instantly instructed by productione of the tacks the towne Counsell Did most Justlie deprive the said Aeneas of the office of clerkship and estaiblished other clerks in his place This being a trwe and Succinct accompt of the caise and the magistrats procedure in that affaire they make these following ansuers to the particulars lybelled And first wheras it is alleadged That the magistrats in ther petitione to the parliament craved that ther complaint Should be remitted to themselvs which the parliament found not Just but remitted the Same to the Lords of Sessione This is absolutelie callummows for it is evident by the conclusione of the townes petitione ingrossed in the act of parliament That all they craved was that they being bownd up by the foirsaids acts and extravagant qwalities of the said Aeneas his gift which they themselvs could not take away Therfore the parliament Should both take tryell of the maleversationes objected and rescind these wnjust acts in tyme comeing which was accordinglie Done And if it had not bein that the parliament was taken up with the publict affairs of the kingdome they had at that tyme discust the clerk als well as they rescinded these wnjust acts and qwalities insert in his gift Secundo wheras it is alleadged that the magistrats upon pretence of regulatione haveing taken inspectione of the records and warrands to expiscatt new crymes And a Committie being appointed for that effect the said Aeneas made applicatione to the Lords of Sessione and obtained ane advocatione Dischargeing the magistrats of all furder cognitione of the Said Aeneas maleversationes and yet they proceeded Sumarlie to Deprive him of his office notwithstanding of the Said Advocatione It is ansuered primo That albeit the towne Counsell might verie Justlie have appointed a Committie to enqwyre anent the clerks maleversationes seing ther was a great daile of clamoure against him But it is absolutely callummows that they appointed any Comittie at that tyme for enqwyreing into the saids maleversationes But all they Did was to appoint a comittie to consider the Dwes of the clerks chamber And how far the dwes exacted by the clerk and his servants did agrie with the Last table made by the Counsell anent the clerks Dwes and to report as appears by the act But he being consciows to himself that he could not ansuer for his wnjust exactiones He imediatlie upon the townes appointing the foirsaid Comitie to take tryell as to the dues raised the foirsaid advocatione Secundo the said Advocatione was raised upon a lybell made up by the said Aeneas himself for he gott no such lybell at that tyme when he raised the Last advocatione as therin narratted And it were a verie assured thing to pretend that if any persone Should make up a lybell at his own hand and therupon raise ane advocation albeit ther were never Such ane actione intended that this Should Stopp the procedure of all inferior Judges that when the other pairtie Should raise a lybell upon that mater contained in the advocatione that the raiser of the advocatione hes made up at his own hand for if that were allowed it would be a compendiows way to Stopp all procedure befor inferior courts for when ever any persone had the least Suspitione that ane other pairtie was goeing to perswe ane actione against him he would presentlie make up ane lybell and raise ane advocatione of purpose to Stopp all procedure before inferior courts So that by these meanes inferior courts would Signifie nothing at all then which ther can be nothing more unjust and absurd Tertio albeit the Advocatione raised upon that made up lybell doeth advocat the cognosceing of maleversatioens als well as the clerks Dwes yet that can never be wnderstood of any other maleversationes But these for which he Stood actwallie accused for the tyme And it were the height of nonsense to assert that wher a pairtie is accused of severall crymes and maleversationes and raises advocatione as to maleversationes in generall that such ane advocatione can be understood to comprehend all other crymes and maleversationes besyde these contained in the Speciall accusatione As for instance of any Should be perswed befor inferior Courts for Severall acts of theft robberie or Slaughter And the defender Should raise advocatione mentioning that he is persewed for theift robberie and Slaughter in generall it were ridiculous to pretend that Such ane Advocatione could extend to any other Speciall act of theift robberie or Slaughter but these for which the defender Stood actually accused And this holds also in civill actiones when ther is ane advocatione raised efter that maner And the reasone is plainelie this that nothing can be understood to be advocat but what is deduced in Judgement And if it were otherwayes the effect of Such ane Advocatione Should be absolutelie to exauctorat the inferior Judge and deprive him altogither of his office or Judgeing upon the persone or any actione concerning him als he be Subject to the Jurisdictione, which were absurd to imagine And therfor Seing the maleversationes for which the Said Aeneas was now deprived were absolutelie new and non of these for which he was accused befor the raiseing of the advocatione they can never be understood to fall under the advocatione And conseqwentlie the towne Councell did nowayes contemne the Lords of Sessiones authoritie in proceeding to cognosce upon these other maleversationes and Depriveing ther clerk for the Same Qwarto the towne Councell did verie Justlie proceed Summarlie to deprive him because the towne by the late act of parliament being reponed to ther antient rights and power which they had over ther clerk they might verie Laufullie proceed Sumarlie against the said Aeneas which hes bein the ordinarie practice of the towne Counsell in Such caices And particularlie in Sumarlie depriveing of Sir William Thomsone which was approven by a decreit of the Lords of Sessione in foro And also in the caice of Sir James Rochead and non of them when they were accused befor the toune Counsell for ther maleversationes so much as ever offered to raise ane Advocatione It is trwe Sir William Thomsone persewed a reductione of the Sentance against him befor the Lords of Sessione And one of the reasones was that he was Sumarlie deprived without lybell or citatione but this reasone als well as all his other reasones of reductione were repelled and the towne Counsells Sentance of Sumar deprivatione was Sustained And Sir James Rochead nether raised advocatione or perswed reductione but frielie Submitted to the Sentance and never applyed to any other Judge to be reponed to his office but onlie to the towne Counsell whom he verie well knew was his propper Judges As also it is the ordinarie practice of other townes in the kingdome Summarlie to deprive ther servants upon maleversatione And is ordinarie for the Lords of Sessione Sumarlie to deprive advocats and clerks upon maleversationes comitted by them deserveing Deprivatione As also burgesses of royall burghs may be and many times are Sumarlie deprived of ther friedome and ther burges tickets taken from them and torne for maleversationes Comitted by them against the towne and certaine Mr Mclaud could have no better right to his office by vertue of his gift then a burges hes to his freedome by a burges ticket So if any burges freedome which he hes not onlie Dureing life but transmitts the benefite therof to his childrein And yet may be Sumarlie taken from him upon Just grownds much more may the towne clerk be deprived of his office Summarlie for maleversations Deserveing deprivatione especiallie when instantlie instrwcted and verified as was in this caise Wheras it is alleadged that the said Aeneas could not have bein Justlie deprived for not Subscribeing the tacks for the Comwnitie and not adhibiteing wittnesses to the Samen Because he could not Signe for the Comwnitie befor the tacksemen had first Subscribed the tacks And it was a cause of Sir William Thomsones deprivatione that he had Subscribed the tacks for the Comwintie befor the tacksemen Subscribed the Samen And that it could not be imputed to him that ther was not wittnesses adhibite to the tacks because the towne Thesaurer did take up all the Eleven tacks of the Comowne good and privatlie obtaine the tacksemens Subscriptione to the Samen without calling the clerk to be present or makeing wse of the ordinarie wittnesses to the tacks And if ther was any neglect in the affaire yet the towne had no prejudice Because the tacksemen had Signed the roupe which would obleidge them It is ansuered primo that it is evident by the lybell that upon the mater the said Aeneas acknowledges as is most certaine that he by vertue of his office Should have both Subscribed for the Comwnitie and Sein that wittnesses was adhibite to the tacks And indeed the townes Securitie is upon ther clerks Subscribeing to the Comwnitie and adhibiteing of Subscribeing wittnesses Secundo It is ane absolwte mistake to alleadge that Sir William Thomsone was deprived for Subscribeing for the Comwnitie befor the tacksemen Subscribed for the principall grownd of Sir William Thomsones Deprivatione was that he had given up the tack to the tacksemen and that he had nether taken ther Subscriptione to that Double nor another Double for the townes wse And it is most certaine that the Comowne practice in Such caises is that imediatlie when the magistrats signs the tacks the clerk Signes the Same for the Commwnitie And this compleats the tack as to the pairt so that it was certainlie a gross maleversatione in the clerk to neglect to Signe the tacks for the Comwnitie efter the magistrats had Signed the Same for befor he Subscribe for the Comwnitie it was not a compleat tack on the townes pairt And so might have bein qwestioned by the tacksemen and upon that ground migh5 have pretended to have bein frie Tertio albeit the towne Thesaurer had taken up the tacks sometyme efter the magistrats Subscribed the Same which he might verie Laufullie have Done in order to Sie the tack dueties and the names of the tacksemen and ther Cautioners Duelie filled up And if he procured the tacksemen and ther Cautioners to Signe the tacks it was onlie to ease the clerk of pains in seeking of ther hands And for the better dispatch of the townes bussines But this does nowayes Liberat the clerk from the duetie incumbent to him by his office which was to have Subscribed the tacks himself for the Comunitie And to have Sein wittnesses adhibite to the tacks which otherwayes were null in Law Qwarto it can never Liberat the clerk that the Thesaurer Did take up the tacks because he Did not keep them above a fourtnight in his hand haveing kept them no longer then he gatt Some of the tacksemen and Cautioners hands to them And imediatlie therefter gave them be the clerks chamber and left them in the hands of one Alexander Simpsone who is a writer in the chamber and ane under Servant Depending upon the clerk Qwinto the said Aeneas being conscious to himself he was obleidged to Signe for the Commitie after the magistrats ther is one of the Eleven tacks he So Signs and if he thought himself obleidged by his office to Signe any of them certainlie it was a gross neglect in him not to Signe the rest Exto It is ane absolwte mistake to alleadge that the ordinarie wittnesses were not made wse of for the two comoune wittnesses viz Mr James Nasmith clerk depute and Alexander Simpson the writer of the tacks are the Subscribeing wittnesses insert who being allwayes present it was a most Supine neglect in the clerk not to have taken caire that these ordinarie wittnesses Should have Subscribed as wittnesses to the tacks Septimo albeit the thesaurer had neglected to cause wittnesses Subscribe to the tacksemens Subscriptiones yet it was still the clerks pairt to have gotten that Supplied Seing it was als easie for him to have caused the pairties declaire ther Subscriptiones befor the wittnesses insert as to have caused them Subscribe befor the wittnesses from the beginning Octavo the towne hes ane evident prejudice by the clerks not haveing gotten wittnesses adhibite to the tacksemens Subscriptions Because the tacks for want of wittnesses are absolutelie null as said is And the tacksemen Subscribeing the minwte of roupe is not Sufficient because it is onlie bwt a memoriall and not at all probative being Subscribed without witnesses And at best it is but a ground of actione wheras a tack beareing registratione present executione may be wsed upon it But however Seing the Counsell according to Law and constant custome being in wse to Sett tacks And which are absolutelie necessar ther being more clauses in ane extended tack then in a Short minwte of roupte It was Supine negligence and a gross maleversatione in the clerk to omitt to Subscribe for the Comwnitie ten of the tacks And as to all of them did omit to adhibite wittnesses Wheras it is alleadged that the two clerks elected by the towne Counsell in the said Aeneas his place ought to be discharged and he reponed againe to his office It is ansuered first that the said Aeneas being Justlie deprived and other two clerks being legallie Setled in his place they cannot be dispossest and the said Aeneas reponed to the office next the said Aeneas being deprived of the office by the towne Counsell who are competent Judges the qwarrelling of that Sentance was propperlie a mater of civill right And only competent to be cognosced by the Lords of Sessione especiallie ther being no violence wsed in the case As for instance if any inferior Judge Should pass a Sentance for a debt or decerne any persone Sumarlie to be removed and determine in any other civill right and to bring it preciselie to the case in hand if any inferior Judge Should decerne in a mater efter advocatione is produced albeit the Subject mater was Speciallie advocat as is not in this case yet it were absurd to pretend nether ever was it heard of that Such decreits and Sentances Should be qwarrelled befor the privie Counsell But the legall method is to persue reductione of such sentances befor the Judge ordinarie And if it were otherwayes then the reductione of all Sentances past by inferior Judges which for the most pairt are ordinarly qwestioned upon that ground that the Sentance was wrongouselie past Should be brought befor the privie Counsell which never any persone that had the knouledge of the first principalls of Law So much as ever pretended Left the Said Sentance of deprivatione be what it will Just or unjust it being past by a competent Judge and in a civill mater it cannot be otherwayes qwestioned or taken away but by the Judge ordinar And not onlie the Said Aeneas is gwiltie of the Saids maleversationes for which he was most Justlie deprived but of many others and his maleversed in6 everie pairt of his office As first by neglecting and Leaveing the registers wnfilled up for not onlie moneths but many yeirs As also he did altogither omit very necessary pairts of the records Such as the Jedges and warrands and keeping the minwts and warrands of other registers whollie in confwsione Secundo by recording some acts of Counsell most confwsedly and indistinctly as also falselie as will appear by occullar inspectione Tertio by breakeing the trwst the towne reposed in him as to ther own vassalls Qwarto by giveing out Decreits of the towne Counsell without any warrand Qwinto by his despiseing and contenuing of the orders of the Counsell in face of Councell Sexto that he being but a Servant yet he did take upon him the confidence most reproachfullie and falseie to reflect upon the magistrats and Counsell both in his publict discourses and printed papers Septimo his insufficiencie and incapacitie to be clerk is notourelie knowen and many others more fullie and particularlie contained in the lybell against him which is depending befor the Lords of Sessione And if the town Councill had not good reasone to frie themselvs of such a clerk by all the Just methods they could your Lordship may easiely Judge And therfore Seing the said Aeneas Stands deprived by the Sentance of a competent Judge and that ther are other clerks now setled in his place and actwallie exerceing the magistrats and towne Counsell owght to be assoilzied from this groundles complaint And if the Said Aeneas conceave himself to be prejudged by that Sentance he owght to be left to persue a reductione therof befor the Judge ordinarie According to the Comoune course of Law in Such caices Being both read in presence of7 His Majesties High Commissioner and Lords of privie Counsell And both pairties Lawiers being fullie heard His majesties high Commissioner And the Lords of his majesties privie Counsell haveing considered the lybell and ansuers made therto and haill debate theron They have remitted and heirby remits the point of right to the Lords of Sessione And Discharges the Said James Stewart and Mr John Murray to exercise the said office of towne clerk of Edinburgh And decernes and ordaines the saids magistrats of Edinburgh to repossess the said Aeneas Mcleod persewer in the said office of towne clerk of Edinburgh And ordaines Letters of horning on fiftein dayes and other executorialls needfull to be direct hereupon in forme as effeirs

1. NRS, PC2/26, 290v-301v.

2. The word ‘or’ scored out here.

3. The word ‘and’ scored out here.

4. Sic.

5. Sic.

6. The word ‘severall’ scored out here.

7. The words ‘the saids Lords of’ scored out here.

1. NRS, PC2/26, 290v-301v.

2. The word ‘or’ scored out here.

3. The word ‘and’ scored out here.

4. Sic.

5. Sic.

6. The word ‘severall’ scored out here.

7. The words ‘the saids Lords of’ scored out here.

Act, 2 October 1696, Edinburgh

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Att Edinburgh the second Day of October Jaj vic nyntie six yeirs

D1696/10/21

Act

Act Bodie And Askleisk2

Anent the petitione given in to the Lords of his majesties privie Counsell be James Bodie3 of that ilk and George Brodie of Askleisk for themselves and in name and behalf of the rest of the heretors elders and parochiners of the parochin of Alves with the Shyre of Murray Shewing That wheras the paroch church of Abbay at the ministers house and the Schooll and Schoolmaisters houses are qwite rwined and demolished and the present and bygone callamitie and distress these yeirs bygone which hath befallen the said paroch disabeling them from doeing any thing to purpose towards the reparatione of the Said church School and Schoolmaisters houses without help and assistance Likeas the saids heretors elders and parochiners of the said paroch haveing given a call to a minister within the Synod of Lothian to Supplie the vaccancie whom they are hopefull to obtaine which will alsoe requyre a considerable expensses for his transport at soe great a distance of above Six Score mylls And Seing that most of the vaccance Stipend of the Said parochin of Alvas are Layed owt and expended alreadie for the mentainance of these ministers who have bein sent from the Sowth and that remainder of these vaccant Stipends are but inconsiderable and the conditione of the parochiners requyre that they Should be imployed for help of such piows wses as bwilding of the church Schooll and Schoollmaisters houses And which would requyre six tymes more to defray the expensses of the Haill And therfor humblie craveing to the effect eftermentioned As the said petitione bears Which being this day red and considered be his Majesties High Commissioner and the Lords of privie Counsell They Doe heirby allow the Superplus of the vaccant Stipend and rent of the Gleib of the said paroch church of Alves efter deductione of the mentainance for what is allowed be act of parliament to ministers and preachers who have or Shall Supplie the vaccancie of the said kirk to be imployed for repaireing the Said paroch church ministers house and the Schooll and Schoollmaisters house of Alves for what is resting for the yeirs Jaj vic nyntie five and preceeding And also for the yeir Jaj vic and nyntie Six in caice the Same Shall not be fownd legallie Dwe to the minister called to Supplie the vaccancie And nominats and appoints the Said George Broadie of Asklisk to be factor for uplifting the Said Stipend and rent of the gleib And Decernes and ordaines him to be readiely ansuered obeyed and payed of the Saids Stipends and rent of the Gleib be the heretors and others lyable Fewers wodsetters liferenters titulars tacksemen of teinds tennents possessors and others lyable in payment of the saids Stipends and rent of the Gleib And ordaines Letters of horneing on fiftein dayes and others needfull under the Signet of privie Counsell to be direct hereupon at the said factors instance against the saids heretors fewers wodsetters and others foirsaids lyable in payment of the saids Stipend and rent of the said Gleib In respect the said factor hes given bond and found Sufficient Cawtione acted in the books of his majesties privie Counsell that he Shall imploy the said vaccant Stipend and rent of the Gleib upon the reparatione of the said paroch church of Alves ministers house the School and Schoolmasters house of the said paroch upon productione of a Decreit of Localitie and in caise ther be none ordaines the heretors and others foirsaids to make payment of ther respective proportiones therof according as they shall be determined by the Judge ordinary

Att Edinburgh the second Day of October Jaj vic nyntie six yeirs

D1696/10/21

Act

Act Bodie And Askleisk2

Anent the petitione given in to the Lords of his majesties privie Counsell be James Bodie3 of that ilk and George Brodie of Askleisk for themselves and in name and behalf of the rest of the heretors elders and parochiners of the parochin of Alves with the Shyre of Murray Shewing That wheras the paroch church of Abbay at the ministers house and the Schooll and Schoolmaisters houses are qwite rwined and demolished and the present and bygone callamitie and distress these yeirs bygone which hath befallen the said paroch disabeling them from doeing any thing to purpose towards the reparatione of the Said church School and Schoolmaisters houses without help and assistance Likeas the saids heretors elders and parochiners of the said paroch haveing given a call to a minister within the Synod of Lothian to Supplie the vaccancie whom they are hopefull to obtaine which will alsoe requyre a considerable expensses for his transport at soe great a distance of above Six Score mylls And Seing that most of the vaccance Stipend of the Said parochin of Alvas are Layed owt and expended alreadie for the mentainance of these ministers who have bein sent from the Sowth and that remainder of these vaccant Stipends are but inconsiderable and the conditione of the parochiners requyre that they Should be imployed for help of such piows wses as bwilding of the church Schooll and Schoollmaisters houses And which would requyre six tymes more to defray the expensses of the Haill And therfor humblie craveing to the effect eftermentioned As the said petitione bears Which being this day red and considered be his Majesties High Commissioner and the Lords of privie Counsell They Doe heirby allow the Superplus of the vaccant Stipend and rent of the Gleib of the said paroch church of Alves efter deductione of the mentainance for what is allowed be act of parliament to ministers and preachers who have or Shall Supplie the vaccancie of the said kirk to be imployed for repaireing the Said paroch church ministers house and the Schooll and Schoollmaisters house of Alves for what is resting for the yeirs Jaj vic nyntie five and preceeding And also for the yeir Jaj vic and nyntie Six in caice the Same Shall not be fownd legallie Dwe to the minister called to Supplie the vaccancie And nominats and appoints the Said George Broadie of Asklisk to be factor for uplifting the Said Stipend and rent of the gleib And Decernes and ordaines him to be readiely ansuered obeyed and payed of the Saids Stipends and rent of the Gleib be the heretors and others lyable Fewers wodsetters liferenters titulars tacksemen of teinds tennents possessors and others lyable in payment of the saids Stipends and rent of the Gleib And ordaines Letters of horneing on fiftein dayes and others needfull under the Signet of privie Counsell to be direct hereupon at the said factors instance against the saids heretors fewers wodsetters and others foirsaids lyable in payment of the saids Stipend and rent of the said Gleib In respect the said factor hes given bond and found Sufficient Cawtione acted in the books of his majesties privie Counsell that he Shall imploy the said vaccant Stipend and rent of the Gleib upon the reparatione of the said paroch church of Alves ministers house the School and Schoolmasters house of the said paroch upon productione of a Decreit of Localitie and in caise ther be none ordaines the heretors and others foirsaids to make payment of ther respective proportiones therof according as they shall be determined by the Judge ordinary

1. NRS, PC2/26, 289r-290v.

2. This heading is only partially legible, having been written over earlier words.

3. Sic.

1. NRS, PC2/26, 289r-290v.

2. This heading is only partially legible, having been written over earlier words.

3. Sic.

Sederunt, 2 October 1696, Edinburgh

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Att Edinburgh the second Day of October Jaj vic nyntie six yeirs1

D1696/10/12

Sederunt

His majesties high Commissioner; Lord Chancellor; Earl of Mellvill; Duke of Qweensberry; Earl of Argyle; Earl of Morton; Earl of Lauderdale; Earl of Lothian; Earl of Leven; Earl of Kintore; Lord John Hamilton; Lord Montgomry; Lord Raith; Lord Ross; Lord Belhaven; Lord Carmichael; Lord Ruthven; Sir James Ogilvie; Lord Advocat; Lord Justiceclerk; Lord Philiphaugh; Lord Hallcraig; Lord Fountainhall; Lord Anstruther; Mr Fra: Montgomery; Laird of Grant; Laird of Pollock; Laird of Blackbaroony; Laird of Leyes; Laird of Stevensone; Sir Thomas Livingtoune; Laird of Cessnock; Laird of Ballhousie

Att Edinburgh the second Day of October Jaj vic nyntie six yeirs1

D1696/10/12

Sederunt

His majesties high Commissioner; Lord Chancellor; Earl of Mellvill; Duke of Qweensberry; Earl of Argyle; Earl of Morton; Earl of Lauderdale; Earl of Lothian; Earl of Leven; Earl of Kintore; Lord John Hamilton; Lord Montgomry; Lord Raith; Lord Ross; Lord Belhaven; Lord Carmichael; Lord Ruthven; Sir James Ogilvie; Lord Advocat; Lord Justiceclerk; Lord Philiphaugh; Lord Hallcraig; Lord Fountainhall; Lord Anstruther; Mr Fra: Montgomery; Laird of Grant; Laird of Pollock; Laird of Blackbaroony; Laird of Leyes; Laird of Stevensone; Sir Thomas Livingtoune; Laird of Cessnock; Laird of Ballhousie

1. NRS, PC2/26, 289r.

2. NRS, PC2/26, 288r-289r.

1. NRS, PC2/26, 289r.

2. NRS, PC2/26, 288r-289r.

Warrant, 30 October 1694, Edinburgh

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Edinburgh the Threttie day of October Jaj vjc nyntie four years

D1694/10/151

Warrant

Warrand for Transporting John Gulespie

The Lords of their Majesties privy Councill Doe heirby Ordaine John Gullespie present prisoner in the Tolbooth of Ranfrew for alledged killing of Major James Meinzies To be transported to the Tolbooth of Edinburgh and for that effect ordaines the magistrats of Ranfrew to deliver the said John to the shireff principall of the shire of Ranfrew or his deputes betwixt and the twelth day of november nixt, The said John before he come furth of the said Tolbooth giving bond and finding Cautione to the magistrats of Ranfrew at the sight of Mr Francis Montgomry and Sir John Maxwell or aither of them that he shall be true prisoner to the said shireff principalls or their deputs and the guards that shall be Sett upon him be the severall shirreffs And that he shall enter himself prisoner in the Tolbooth of Edinburgh betwixt and the twelth day of november nixt to come under the penaltie of Twentie Thousand merks incaise he shall transgress in any part of the premisses And Ordaines the said shireff principall of Ranfrew or his depute to put the said John Gillespie under a suficient guaird and to Convey him to the nixt Shyre, and deliver him to the Shireff principall therof or his deputs And so appoints him to be Conveyed from sheriff to shireff untill he come to Edinburgh and ordaines the magistrats of Edinburgh and keeper of their Tolbooth to receive the said John Gillespie from the said Guaird, and to hold and detaine him prisoner in their Tolbooth And Ordaines the magistrats of Ranfrew to transmitt to the Clerks of privy Councill the bond that they shall receive from the said John Imediatly upon their recept therof.

Edinburgh the Threttie day of October Jaj vjc nyntie four years

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Warrant

Warrand for Transporting John Gulespie

The Lords of their Majesties privy Councill Doe heirby Ordaine John Gullespie present prisoner in the Tolbooth of Ranfrew for alledged killing of Major James Meinzies To be transported to the Tolbooth of Edinburgh and for that effect ordaines the magistrats of Ranfrew to deliver the said John to the shireff principall of the shire of Ranfrew or his deputes betwixt and the twelth day of november nixt, The said John before he come furth of the said Tolbooth giving bond and finding Cautione to the magistrats of Ranfrew at the sight of Mr Francis Montgomry and Sir John Maxwell or aither of them that he shall be true prisoner to the said shireff principalls or their deputs and the guards that shall be Sett upon him be the severall shirreffs And that he shall enter himself prisoner in the Tolbooth of Edinburgh betwixt and the twelth day of november nixt to come under the penaltie of Twentie Thousand merks incaise he shall transgress in any part of the premisses And Ordaines the said shireff principall of Ranfrew or his depute to put the said John Gillespie under a suficient guaird and to Convey him to the nixt Shyre, and deliver him to the Shireff principall therof or his deputs And so appoints him to be Conveyed from sheriff to shireff untill he come to Edinburgh and ordaines the magistrats of Edinburgh and keeper of their Tolbooth to receive the said John Gillespie from the said Guaird, and to hold and detaine him prisoner in their Tolbooth And Ordaines the magistrats of Ranfrew to transmitt to the Clerks of privy Councill the bond that they shall receive from the said John Imediatly upon their recept therof.

1. NRS, PC2/25, 73r-73v.

1. NRS, PC2/25, 73r-73v.

Sederunt, 30 October 1694, Edinburgh

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Edinburgh the Threttie day of October Jaj vjc nyntie four years1

D1694/10/142

Sederunt

Lord Chancelor; Earl of Drumlanrig; Earl of Southerland; Earl of Mortoune; Earl of Leven; Earl of Brodalbine; Viscount Tarbat; Lord Carmicheall; Lord Advocat; Lord Justice Clerk; Laird of Blackbarony; Sir Thomas Livingston

Edinburgh the Threttie day of October Jaj vjc nyntie four years1

D1694/10/142

Sederunt

Lord Chancelor; Earl of Drumlanrig; Earl of Southerland; Earl of Mortoune; Earl of Leven; Earl of Brodalbine; Viscount Tarbat; Lord Carmicheall; Lord Advocat; Lord Justice Clerk; Laird of Blackbarony; Sir Thomas Livingston

1. NRS, PC2/25, 73r.

2. NRS, PC2/25, 73r.

1. NRS, PC2/25, 73r.

2. NRS, PC2/25, 73r.

Order, 11 October 1694, Edinburgh

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Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/131

Order

Order anent the Records and Warrands of the Justice Court.

The Lords of their Majesties privy Councill Doe heirby Give order and Warrand to the Cheldrein of Mr Thomas Gordone sometime Clerk to the Justice Court and their tutors and Curators and to the Clerks of the district Courts named by him and their representatives, and all others havers of the Registers Records and warrands of the Justice Court or Circuits or district Courts To Deliver up the same to James Montgomrie of Langshaw present Clerk of the Justice Court and that upon their oathes to be taken in presence of […] And Ordaines letters of horning to be direct heiron upon fiftein dayes at the instance of the said James Montgomrie and others if need bees in forme as effeirs.

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/131

Order

Order anent the Records and Warrands of the Justice Court.

The Lords of their Majesties privy Councill Doe heirby Give order and Warrand to the Cheldrein of Mr Thomas Gordone sometime Clerk to the Justice Court and their tutors and Curators and to the Clerks of the district Courts named by him and their representatives, and all others havers of the Registers Records and warrands of the Justice Court or Circuits or district Courts To Deliver up the same to James Montgomrie of Langshaw present Clerk of the Justice Court and that upon their oathes to be taken in presence of […] And Ordaines letters of horning to be direct heiron upon fiftein dayes at the instance of the said James Montgomrie and others if need bees in forme as effeirs.

1. NRS, PC2/25, 73r.

1. NRS, PC2/25, 73r.

Act, 11 October 1694, Edinburgh

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Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/121

Act

Act Meinzies of Raw

Anent the petition given in to the Lords of their majesties privy Councill be William Minzies of Raw writter to the signet Shewing That wher William Meinzies of Castlehill and who was also propriator of the lands of Torrartoune haveing dyed on munday last and the saids lands of Forrartoune being provyded to the airs male and the petitioner being his appearand air male The petitioner has therby ane unquestionable right to his Chartor Chist and wrytes and evidents secured and the petitioner being informed that they are at present in the hands of Edward Meinzies writter in Lanerk, Robert Kennedy of Auctifardell or some other persones in that Countrey the petitioner was necessitate to make this applicatione to the saids Lords that the forsaid Chartor Chist and other wrytes and 2 evidents which did belong to the defunct may be ordered to be transmitted to and put in the hands of Mr John Mckenzie or Sir James Justice Clerks to the Sessione and in order therto It is absolutely necessar that the saids wrytes should be Inventared and which may be done by William Lowrie of Blaikwood, John Simervell of Spitell shireff depute of Lanerk and the said Edward Meinzies or any two of them, And seing the petitioners right and intrest to the forsaids Lands does depend upon the security of the forsaid wrytes, and that their Lordships are allwayes in use in paralell caises To Grant warrand for secureing of Chartor Chists which belongs to 3 defuncts and are in the hands and Custody of Strangers or others And Therfore humbly Craveing the saids Lords would take the premisses to their Consideratione and Grant their Commissione to the said William Lowrie of Blaikwood John Simervell of Spitle and the said Edward Meinzies or any two of them to Inventar the saids wrytes as alsoe to Grant ane warrand to Auchtifardell Edward Meinzies or others havers of the saids wrytes and evidents to produce the same to be inventared and therafter sequestrat in the hands of either of the saids Clerks of the sessione and for that effect that they transmitt the same upon the petitioners Chargas after they shall be Charged therto with Certificatione as the petition bears The Lords of their majesties privy Councill haveing Considered this petitione given in to them be William Meinzies of Raw They heirby allow the Laird of Auchtifardell and others havers of the above writtes to see and answer the same against the sixt day of november nixt, and in the mean time Recommands to the Lord Carmicheall to secure the above Chartor Chists and wrytes and evidents and to Cause Lock up the same and put his Lordships seall upon the Locks.

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/121

Act

Act Meinzies of Raw

Anent the petition given in to the Lords of their majesties privy Councill be William Minzies of Raw writter to the signet Shewing That wher William Meinzies of Castlehill and who was also propriator of the lands of Torrartoune haveing dyed on munday last and the saids lands of Forrartoune being provyded to the airs male and the petitioner being his appearand air male The petitioner has therby ane unquestionable right to his Chartor Chist and wrytes and evidents secured and the petitioner being informed that they are at present in the hands of Edward Meinzies writter in Lanerk, Robert Kennedy of Auctifardell or some other persones in that Countrey the petitioner was necessitate to make this applicatione to the saids Lords that the forsaid Chartor Chist and other wrytes and 2 evidents which did belong to the defunct may be ordered to be transmitted to and put in the hands of Mr John Mckenzie or Sir James Justice Clerks to the Sessione and in order therto It is absolutely necessar that the saids wrytes should be Inventared and which may be done by William Lowrie of Blaikwood, John Simervell of Spitell shireff depute of Lanerk and the said Edward Meinzies or any two of them, And seing the petitioners right and intrest to the forsaids Lands does depend upon the security of the forsaid wrytes, and that their Lordships are allwayes in use in paralell caises To Grant warrand for secureing of Chartor Chists which belongs to 3 defuncts and are in the hands and Custody of Strangers or others And Therfore humbly Craveing the saids Lords would take the premisses to their Consideratione and Grant their Commissione to the said William Lowrie of Blaikwood John Simervell of Spitle and the said Edward Meinzies or any two of them to Inventar the saids wrytes as alsoe to Grant ane warrand to Auchtifardell Edward Meinzies or others havers of the saids wrytes and evidents to produce the same to be inventared and therafter sequestrat in the hands of either of the saids Clerks of the sessione and for that effect that they transmitt the same upon the petitioners Chargas after they shall be Charged therto with Certificatione as the petition bears The Lords of their majesties privy Councill haveing Considered this petitione given in to them be William Meinzies of Raw They heirby allow the Laird of Auchtifardell and others havers of the above writtes to see and answer the same against the sixt day of november nixt, and in the mean time Recommands to the Lord Carmicheall to secure the above Chartor Chists and wrytes and evidents and to Cause Lock up the same and put his Lordships seall upon the Locks.

1. NRS, PC2/25, 72r-72v.

2. One illegible word scored out here.

3. The word ‘the’ scored out here.

1. NRS, PC2/25, 72r-72v.

2. One illegible word scored out here.

3. The word ‘the’ scored out here.

Act, 11 October 1694, Edinburgh

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Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/111

Act

Act The Creditors of Hunters of Muirhouse

Anent a Petition given in to the Lords of their majesties privy Councill be Sir John Hall late provest of Edinburgh, Sir James Oswald of Fingltoune Mr William Aikman master David Forbes Mr David Dunmuir Mr William Calderwood Mr James Lessly and Mr John Mowat advocats, John Hamiltone Robert Sandilands, James Cleilland Thomas Young merchants Mr John Cameron, Master Andrew Urie, Mr William Hamiltone, Mr John Alexander Mr Patrick Trent ministers Mr Thomas Aikman Mr Androw Balfour Mr James Lessly, Nicoll Sumervell Master Androw Handisyde wryters and many others besides widowes and Orphans and the kirk sessione of St Cuthberts all Creditors to the deceast Mr James Hunter of Muirhouse and Alexander Hunter his eldest sone for themselves and in name of the said Mr James and Alexander Hunters their other Creditors Shewing That wher the said deceast Mr James Hunter of Muirhouse haveing Lived in so great Credit to the very last That in sixtein moneths Imediatly preceiding his death, He borrowed upwards of ane hundred thousand punds, and which with the bulk of his other debts, that are pretended to be due and written doune with his oun hand as such amount to upwards of Two hundred and threty Thousand merks, And by which soumes of money So borrowed, and upwards of seventy thousand merks that is notourly knowen he hade of Estate when he entered in mariadge with his first wyfe besides the Ten Thousand punds he got by his eldest sones Mariadge and fiftein thousand merks by the Annuity payable to his second wife, In all upwards of thrie hundreth and fourtie thousand merks It might be rationally supposed that a man so extreamly frugall and accurat in all his bussines as the defunct was, and who in all his life sustained no Considerable Losses by accidents Or otherwayes should have had some fond or estate Suitable to such great borrowings and incomes Nevertheless and to the great surprisall of all men alse weell of his Creditors, The fond of his estate is pretended to amount to no more then about ane hundred thousand punds Scots in value wherthrow and be reasone of a great many Concurring Circumstances the Creditors have Just reasone to suspect that the defuncts means and estate is either industreously Conveyed in defraud of the Creditors or otherwayes Imbazled and supprest In Respect that primo as by the note of debts under the defuncts hands his borrowings this sixtein last 2 moneths amounted to about ane hundred thousand punds So are ther persones that can depone that in august last they saw to their great admiratione the defunct have Shotles in his Cabinet quherof one was full of Guinies and the other full of half guinies besides severall great baggs of money Secundo that his relict was knowen to have Laboured night and day for a moneth or twentie dayes time before the defuncts decease in Conveying of things out of the house by the assistance of her trusties and Confidents and that the said relict has within these severall years bygone at least since she was the defuncts wyfe Lent out Considerable soumes of money in the name of Confidents or trusties or to the behoove of her Cheldrein by the first mariadge Tertio that the persones were seen Carieing out baggs or pocks full of papers out of the defuncts house some nights before he dyed, which must necessarly have been the rights and evidents of his fortune,3 either reall or personall not yet discovered Quarto that the defuncts sone in law and other relationes though not havers of the writtes and evidents of his fortune yet are Justly presumable to know wher such writtes are, or at least that they are able to make some discovery upon oath of the defuncts estate either heritaball or moveaball reall or personall, and seing the matter is of great Importance to the Creditors and that in this case ane sumar alse weell as extraordinary Courses are absolutely neccessary for discovering of such fraudelent practisses as are Justly to be suspect here, And that the delaying of matters till the doune sitting of the sessione may what by the decease of the relict who is ane aged and tenderwoman and by the oppertunity that others may take to withdraw themselves or Carie on the Conveyance somewhat farder Tend to the butter disappointment of the Creditors forever; And Therfore Humbly Craving the saids Lords not only to Grant warrand to any of their Lordships number they thought fitt or to Recomend to the shiref depute of this shirefdome, or to any other of the magistrates of Edinburgh within whose Jurisdiction the defunct or his said eldest sone their wrytes and evidents may be suspected to be, to goe alongst with the petitioners and give inspectione and Inventar therof to them and for that end to make patent and upon all Lock fast doors Chists Coffers Cabinets and others quherin any of the saids wrytes and evidents are suspected to be wherever the same shall be found, But likewayes that their Lordships would be pleased to Grant warrand to cite before any of their Lordships number they thought fitt to appoint, or recomend to the said shireff or Baillies To Cite before them all such persones as the Creditors have therwith given in a list of or afterwards by discovery shall Condescent upon and that forgiveing their oathes upon what the know of the Conveyance or Imbazlment of any part of the defuncts estate or means or of the fond and points that the same Consisted of or of the abstracting of the deficients wrytes or rights of any part of his estate whatsomever or any part of his Compt books, and that upon Such pertinent Interogattors as the petitioners Shall give in and alsoe that they would Recomend to the said shiref depute or baillies to take the wholl Creditors oathes upon the Justnes and veritie of their debts, least by Conveyances4 the benefit of their oathes may be Lost as the petition bears The Lords of their Majesties privy Councill haveing Considered this petitione given in to them be the Creditors of the deceast Mr James Hunter of Muirhouse and Alexander Hunter his sone They heirby Recomend to Sir James Stewart their Majesties advocat And Gives order and warrand to Mr Archibald Sinclair advocat one of the shiref deputs of Edinburgh or any one of the present magistrats of Edinburgh to cite before them or any one of them all such persones as the saids Creditors presently doe or heirafter shall Condescend upon, and to take the oathes of the saids persones so to be Condescended upon as to what they know of the Contryvance or Imbazlements of any part of the said deceast Mr James Hunter or the said Alexander Hunter his sone their estates or meanes or of the fonds or points which the same Consisted off, or of the abstracting of the said Mr James or his said sone their wrytes evidents or securities of any part of their estates or any part of their Compt books and upon such pertinent interrogators as the petitioners or other Creditors shall give in, and also to take the oathes of the wholl Creditors upon the Justice verity and quantitie of their debts least by Conveyance the benefitt of their oathes may be lost, And incaice It shall appear by the oathes of the saids persones or any of them wher the wrytes evidents or securities of the defunct or his said sone their estate or any part therof or any of them are, or wher their accompt books or any of them are Then and in that caise the saids Lords doe heirby Give Order and Warrand to the said Mr Archibald Sinclair or any one of the saids present magistrats of Edinburgh To goe allongst with and give inspectione to the petitioners Or the other Creditors of the said deceast Mr James Hunter or Alexander Hunters their saids wrytes evidents or securities of their saids estates or Compt books wher ever the samen shall be deponed to be and to make Inventar therof, with power for that end to make open and patent all Lockfast doors Chists Cabinetts Coffers and others quherin any of the saids writtes evidents securities or Compt books are.

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/111

Act

Act The Creditors of Hunters of Muirhouse

Anent a Petition given in to the Lords of their majesties privy Councill be Sir John Hall late provest of Edinburgh, Sir James Oswald of Fingltoune Mr William Aikman master David Forbes Mr David Dunmuir Mr William Calderwood Mr James Lessly and Mr John Mowat advocats, John Hamiltone Robert Sandilands, James Cleilland Thomas Young merchants Mr John Cameron, Master Andrew Urie, Mr William Hamiltone, Mr John Alexander Mr Patrick Trent ministers Mr Thomas Aikman Mr Androw Balfour Mr James Lessly, Nicoll Sumervell Master Androw Handisyde wryters and many others besides widowes and Orphans and the kirk sessione of St Cuthberts all Creditors to the deceast Mr James Hunter of Muirhouse and Alexander Hunter his eldest sone for themselves and in name of the said Mr James and Alexander Hunters their other Creditors Shewing That wher the said deceast Mr James Hunter of Muirhouse haveing Lived in so great Credit to the very last That in sixtein moneths Imediatly preceiding his death, He borrowed upwards of ane hundred thousand punds, and which with the bulk of his other debts, that are pretended to be due and written doune with his oun hand as such amount to upwards of Two hundred and threty Thousand merks, And by which soumes of money So borrowed, and upwards of seventy thousand merks that is notourly knowen he hade of Estate when he entered in mariadge with his first wyfe besides the Ten Thousand punds he got by his eldest sones Mariadge and fiftein thousand merks by the Annuity payable to his second wife, In all upwards of thrie hundreth and fourtie thousand merks It might be rationally supposed that a man so extreamly frugall and accurat in all his bussines as the defunct was, and who in all his life sustained no Considerable Losses by accidents Or otherwayes should have had some fond or estate Suitable to such great borrowings and incomes Nevertheless and to the great surprisall of all men alse weell of his Creditors, The fond of his estate is pretended to amount to no more then about ane hundred thousand punds Scots in value wherthrow and be reasone of a great many Concurring Circumstances the Creditors have Just reasone to suspect that the defuncts means and estate is either industreously Conveyed in defraud of the Creditors or otherwayes Imbazled and supprest In Respect that primo as by the note of debts under the defuncts hands his borrowings this sixtein last 2 moneths amounted to about ane hundred thousand punds So are ther persones that can depone that in august last they saw to their great admiratione the defunct have Shotles in his Cabinet quherof one was full of Guinies and the other full of half guinies besides severall great baggs of money Secundo that his relict was knowen to have Laboured night and day for a moneth or twentie dayes time before the defuncts decease in Conveying of things out of the house by the assistance of her trusties and Confidents and that the said relict has within these severall years bygone at least since she was the defuncts wyfe Lent out Considerable soumes of money in the name of Confidents or trusties or to the behoove of her Cheldrein by the first mariadge Tertio that the persones were seen Carieing out baggs or pocks full of papers out of the defuncts house some nights before he dyed, which must necessarly have been the rights and evidents of his fortune,3 either reall or personall not yet discovered Quarto that the defuncts sone in law and other relationes though not havers of the writtes and evidents of his fortune yet are Justly presumable to know wher such writtes are, or at least that they are able to make some discovery upon oath of the defuncts estate either heritaball or moveaball reall or personall, and seing the matter is of great Importance to the Creditors and that in this case ane sumar alse weell as extraordinary Courses are absolutely neccessary for discovering of such fraudelent practisses as are Justly to be suspect here, And that the delaying of matters till the doune sitting of the sessione may what by the decease of the relict who is ane aged and tenderwoman and by the oppertunity that others may take to withdraw themselves or Carie on the Conveyance somewhat farder Tend to the butter disappointment of the Creditors forever; And Therfore Humbly Craving the saids Lords not only to Grant warrand to any of their Lordships number they thought fitt or to Recomend to the shiref depute of this shirefdome, or to any other of the magistrates of Edinburgh within whose Jurisdiction the defunct or his said eldest sone their wrytes and evidents may be suspected to be, to goe alongst with the petitioners and give inspectione and Inventar therof to them and for that end to make patent and upon all Lock fast doors Chists Coffers Cabinets and others quherin any of the saids wrytes and evidents are suspected to be wherever the same shall be found, But likewayes that their Lordships would be pleased to Grant warrand to cite before any of their Lordships number they thought fitt to appoint, or recomend to the said shireff or Baillies To Cite before them all such persones as the Creditors have therwith given in a list of or afterwards by discovery shall Condescent upon and that forgiveing their oathes upon what the know of the Conveyance or Imbazlment of any part of the defuncts estate or means or of the fond and points that the same Consisted of or of the abstracting of the deficients wrytes or rights of any part of his estate whatsomever or any part of his Compt books, and that upon Such pertinent Interogattors as the petitioners Shall give in and alsoe that they would Recomend to the said shiref depute or baillies to take the wholl Creditors oathes upon the Justnes and veritie of their debts, least by Conveyances4 the benefit of their oathes may be Lost as the petition bears The Lords of their Majesties privy Councill haveing Considered this petitione given in to them be the Creditors of the deceast Mr James Hunter of Muirhouse and Alexander Hunter his sone They heirby Recomend to Sir James Stewart their Majesties advocat And Gives order and warrand to Mr Archibald Sinclair advocat one of the shiref deputs of Edinburgh or any one of the present magistrats of Edinburgh to cite before them or any one of them all such persones as the saids Creditors presently doe or heirafter shall Condescend upon, and to take the oathes of the saids persones so to be Condescended upon as to what they know of the Contryvance or Imbazlements of any part of the said deceast Mr James Hunter or the said Alexander Hunter his sone their estates or meanes or of the fonds or points which the same Consisted off, or of the abstracting of the said Mr James or his said sone their wrytes evidents or securities of any part of their estates or any part of their Compt books and upon such pertinent interrogators as the petitioners or other Creditors shall give in, and also to take the oathes of the wholl Creditors upon the Justice verity and quantitie of their debts least by Conveyance the benefitt of their oathes may be lost, And incaice It shall appear by the oathes of the saids persones or any of them wher the wrytes evidents or securities of the defunct or his said sone their estate or any part therof or any of them are, or wher their accompt books or any of them are Then and in that caise the saids Lords doe heirby Give Order and Warrand to the said Mr Archibald Sinclair or any one of the saids present magistrats of Edinburgh To goe allongst with and give inspectione to the petitioners Or the other Creditors of the said deceast Mr James Hunter or Alexander Hunters their saids wrytes evidents or securities of their saids estates or Compt books wher ever the samen shall be deponed to be and to make Inventar therof, with power for that end to make open and patent all Lockfast doors Chists Cabinetts Coffers and others quherin any of the saids writtes evidents securities or Compt books are.

1. NRS, PC2/25, 69v-72r.

2. The word ‘week’ scored out here.

3. The words ‘yet are Justlie presumable to know wher such wrytes are or at least’ scored out here.

4. The letters ‘ances’ are an insertion.

1. NRS, PC2/25, 69v-72r.

2. The word ‘week’ scored out here.

3. The words ‘yet are Justlie presumable to know wher such wrytes are or at least’ scored out here.

4. The letters ‘ances’ are an insertion.

Decreet, 11 October 1694, Edinburgh

Posted on by

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/101

Decreet

Certificatione Ker contra Hoods

Anent the letter or Lybell raised and pursued before the Lords of their majesties privy Councill at the instance of Margrat Ker lawfull daughter to the deceast John Ker of Lochtour now spouse to John Hood sometime in Mersingtoune Makeing Mention That albeit by the Law of God, of nature and of nationes and particularly by the lawes and acts of parliament and dayly practise of this kingdome all husbands are bound Cherish mantaine and intertaine their wyfes in familly with themselves and to Co-habit in peace Love and amity with their saids wifes and to protect them from all injuries and provyde them in all things necessary and Comfortable to them, yet true it is that the said pursuer being in the year Jaj vjc nyntie maried to the said John Hood her present husband, after she hade been maried to two former husbands viz to Richard Lermounth of Whitlawhouse her first husband by whom she was provyded to and infeft in ane Lyfrent of six hundred merks scots furth of the lands of Whytlaw house and therafter to George Tully in Houndstounehaugh in the Countey of Northumberland in England her second husband By whom she was provyded in ane lyfrent of the lands of Houdonstoun haugh extending to ten punds sterling yearly and the pursuers said present husband haveing Continued to Co habit with 2 her some space untill the elicite from her a right to and gett himself waltered into the possession of her saids lyfrents he quickly therafter without any Just Cause or pretence most inhumanly and unnaturally did desert and forsaike the pursuer and his familly wandering up and doune from place to place without any setled residence or avade having most fraudelently before his desertione or forsaiking of her made ane unjust Conveyance of any right that he hade be vertue of his jus mariti to her former Joyntures To and in favor of Thomas Hood his sone, By which means and by the pursuers said husband and his sone their takeing from her a bond of six hundred merks granted by her brother to her and four rex dollers which her brother gave her in Charity she is redacted to sadd straits and deficulties and 3 instead of being provyded Comforted and Cherished by her siad husband she is robbed and spulzied and left in a desolate and sterving Conditione by his un naturall actings against her and will undoubtedly perish in want and miserie without the saids Lords of their majesties privy Councill provyde remeed therto, And it being both Just and reasonable That the pursuer should be supplied out of her former Joyntures seing her present husband is not able otherwayes to supply her and not that the samen should be waisted and spulzied by her husband who has no intrest therin But throw the pursuer And for this end that the saids Lords would ordaine the said six hundred merks For which the pursuer stands infeft in the saids lands of Whytlawhouse yearly to be payed to her for her aliement by the tennents and possessors therof dureing all the dayes of her lifetime and that termly at two termes in the year Whitsunday and mertimiss be equall portions Commenceing the first termes payment frae Whitsunday last as for the term preceiding at least she should be provyded which a Competent aliement out of her husbands estaite or her oune former Joyntures as the saids Lords of privy Councill shall find Just And Anent the Charge given to the said John and Thomas Hoods defenders To have Compeired personally before the saids Lords of their majesties privy Councill at ane Certaine day bygone To have answered to the grounds of the abovewritten Complaint and to have heard and seen ane Competent aliement modified to the said pursuer And such other order and Course taken theranent as the saids Lords should think fitt as in the forsaid lybell and executiones therof at more length is Contained Which lybell being this day4 Called in presence of the saids Lords of their majesties privy Councill, And the pursuer Compeiring personally with Mr Robert Bennet her advocat And the defenders being Lawfullie Cited Called and not Compeiring The saids Lord Grants Certificatione against the defenders In Respect of their absence and not Compeirance And Ordaines letters of denunciatione to be direct to macers or messengers at armes Comanding them to pass to the marcat Cross of […] and other places needfull and ther in their Majesties names and authoritie to duely Lawfullie and Orderly Denunce the said John and Thomas Hoods their Majesties rebells and put them to ther highnes horne escheat and inbring all their moveable goods and geir to their Majesties use for their Contempt and Disobedience.

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/101

Decreet

Certificatione Ker contra Hoods

Anent the letter or Lybell raised and pursued before the Lords of their majesties privy Councill at the instance of Margrat Ker lawfull daughter to the deceast John Ker of Lochtour now spouse to John Hood sometime in Mersingtoune Makeing Mention That albeit by the Law of God, of nature and of nationes and particularly by the lawes and acts of parliament and dayly practise of this kingdome all husbands are bound Cherish mantaine and intertaine their wyfes in familly with themselves and to Co-habit in peace Love and amity with their saids wifes and to protect them from all injuries and provyde them in all things necessary and Comfortable to them, yet true it is that the said pursuer being in the year Jaj vjc nyntie maried to the said John Hood her present husband, after she hade been maried to two former husbands viz to Richard Lermounth of Whitlawhouse her first husband by whom she was provyded to and infeft in ane Lyfrent of six hundred merks scots furth of the lands of Whytlaw house and therafter to George Tully in Houndstounehaugh in the Countey of Northumberland in England her second husband By whom she was provyded in ane lyfrent of the lands of Houdonstoun haugh extending to ten punds sterling yearly and the pursuers said present husband haveing Continued to Co habit with 2 her some space untill the elicite from her a right to and gett himself waltered into the possession of her saids lyfrents he quickly therafter without any Just Cause or pretence most inhumanly and unnaturally did desert and forsaike the pursuer and his familly wandering up and doune from place to place without any setled residence or avade having most fraudelently before his desertione or forsaiking of her made ane unjust Conveyance of any right that he hade be vertue of his jus mariti to her former Joyntures To and in favor of Thomas Hood his sone, By which means and by the pursuers said husband and his sone their takeing from her a bond of six hundred merks granted by her brother to her and four rex dollers which her brother gave her in Charity she is redacted to sadd straits and deficulties and 3 instead of being provyded Comforted and Cherished by her siad husband she is robbed and spulzied and left in a desolate and sterving Conditione by his un naturall actings against her and will undoubtedly perish in want and miserie without the saids Lords of their majesties privy Councill provyde remeed therto, And it being both Just and reasonable That the pursuer should be supplied out of her former Joyntures seing her present husband is not able otherwayes to supply her and not that the samen should be waisted and spulzied by her husband who has no intrest therin But throw the pursuer And for this end that the saids Lords would ordaine the said six hundred merks For which the pursuer stands infeft in the saids lands of Whytlawhouse yearly to be payed to her for her aliement by the tennents and possessors therof dureing all the dayes of her lifetime and that termly at two termes in the year Whitsunday and mertimiss be equall portions Commenceing the first termes payment frae Whitsunday last as for the term preceiding at least she should be provyded which a Competent aliement out of her husbands estaite or her oune former Joyntures as the saids Lords of privy Councill shall find Just And Anent the Charge given to the said John and Thomas Hoods defenders To have Compeired personally before the saids Lords of their majesties privy Councill at ane Certaine day bygone To have answered to the grounds of the abovewritten Complaint and to have heard and seen ane Competent aliement modified to the said pursuer And such other order and Course taken theranent as the saids Lords should think fitt as in the forsaid lybell and executiones therof at more length is Contained Which lybell being this day4 Called in presence of the saids Lords of their majesties privy Councill, And the pursuer Compeiring personally with Mr Robert Bennet her advocat And the defenders being Lawfullie Cited Called and not Compeiring The saids Lord Grants Certificatione against the defenders In Respect of their absence and not Compeirance And Ordaines letters of denunciatione to be direct to macers or messengers at armes Comanding them to pass to the marcat Cross of […] and other places needfull and ther in their Majesties names and authoritie to duely Lawfullie and Orderly Denunce the said John and Thomas Hoods their Majesties rebells and put them to ther highnes horne escheat and inbring all their moveable goods and geir to their Majesties use for their Contempt and Disobedience.

1. NRS, PC2/25, 68r-69v.

2. The words ‘the profesione of her said lyfrents’ scored out here.

3. The word ‘beside’ scored out here.

4. The words ‘this day’ are an insertion.

1. NRS, PC2/25, 68r-69v.

2. The words ‘the profesione of her said lyfrents’ scored out here.

3. The word ‘beside’ scored out here.

4. The words ‘this day’ are an insertion.

Act, 11 October 1694, Edinburgh

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Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/91

Act

Act The Viscountes of Arbuthnot

Anent the petition given in to the Lords of their Majesties privy Councill be Anna Viscountes of Arbuthnot for her self and her Childrein under age with Concourse of the Earle of Southerland her father Shewing That quher it pleased God lately to remove her husband by death which hapned throw a hote violent feaver the very time of the petitioners being in Child bed and Caried him of in a few dayes without his haveing made any previous nominatione of tutors or testament or provisions for his Cheldrein, But ther being about hi in his sickness his sister the Lady Leyes and Severall other of his relationes They thought fitt to take the advantadge of his incapacity, and the petitioners indispositione and to Cause him subscryve a testament Containeing a nominatione of Tutors and Certaine other deeds according to their oun pleasure and not only to the visible neglect of the petitioner the mother of all his Cheldrein and of all his relationes, But to the manifast prejudice of the petitioners eldest sone his air and of the petitioners haill other Cheldrein But these deeds having been subscryved by him by the forsaid Contrivance in the hight and rage of a fever and Immediatly after he hade suffered a great deliquium throw a Convulsive fitt and without so much as haveing been ever read or truely and distinctly Consented to by him Cannot possibly subsist in law, And Farder these deeds doe in themselves containe such obvious inconsistancies as may plainely eneough evince after what maner they were elicit, For first altho ther be a nominatione of no less then nyne tutors yet nether is the mother the petitioner, nor any of her relationes noticed to be one of them, Secundo some of the tyme that they have Caused him name did Grossly malverse in the manadgment of his estate, which he gave them in his oun life, and quherof he himself was very sencible Tertio of the nyne tutors he makes thrie a quorum without any sinc quo non, so that the tutory may inavoidably fall in thrie quorums Quarto they Cause him expressly take from the petitioner the Custody and keeping of all her Childrein albeit four of them be under fyve years of age and her eldest sone not yet Eight and five of them daughters and two only sones, and this they have done So rudely and unnatureally (for far be it for any to think that this were her husbands deed) that they have not so much as given the petitioner the Custody of one of her Cheldreen even dureing her widow head Quinto they have made him appoint not only very small but strange and unequall provisions for his Cheldrein as thrie Thousand merks to ane elder daughter and Six Thousand merks per peice to two Immediatly younger Sexto The the2 appointments for the petitioners Cheldreins aliement be very hard and insuficient yet they make their father adjure them under the paine of his Curse not to come in the Contrary of what they call his will and pleasure And Lastly the appointments of the aliement are made So inconsiderable that some of the Cheldrein have almost a double more aliement in their younger years then the rent of their portiones that comes in Leiw therof in their elder years By which inconsistancies and absurdities It may plainely eneough appear that her deceast husband Could have Litle or no understanding for the time of what they made him doe But as these things were Contrived as said is, So not only was the petitioner removed by them (and rudely enough) at the doeing therof But it is very Certaine that he gave no directione for the wryting nor were the papers then written read to him or was he in any caice to understand them tho read nor Could he of himself signe them bot in effect hade his hand sett and led to them by one of the witnesses Upon all which grounds the petitioner according to his intrest of blood for her self and her said other Cheldrein raised reductione before the Lords of Sessione of the forsaid deeds But tho these pretended tutors have furnished them with a farder argument to remove them as suspect (albeit the forsaid nominatione were not null) by their presumeing to intromitt with papers and wrytes and the Charter Chist and other things before making Inventar yet they still persist to pretend to and exerce the forsaid office and have given Citationes to make Inventaries of the estate and wrytes and alsoe they threaten to take from the petitioner her Childreen and to remove her from her husbands house to a house they will Call the petitioners Joyntur house tho not all in repair or habitable So that the petitioner is necessitate in a caice so hardly Circumstantiat and which admitts of no delay now in this vaccatione time to apply to the saids Lords for a necessary and therfore doubtless a Just remeedie And seing it is weell knowen and obvious what prejudice the petitioner and her poor Cheldrein may sustaine by the methods that these unkynd freinds have taken and by their prosecuteing and Improveing of the same and that now in this time of vacatione the petitioner has no remeedie and that even tho the sessione were sett the reductione the petitioner has intended must have termes and may abyde a long proces In which interim these pretended tutors (wherof five only and these the least desyreable of them have accepted) may doe such hurt and prejudice as ought in all reasone to be prevented And Therfore humbly Complicating the saids Lords to the effect aftermentioned The Lords of their majesties privy Councill having Considered this petitione given in to them be the Viscountes of Arbuthnot and answers made therto for Sir Thomas Burnet of Leyes They heirby prohibit and Discharge the tutors nominat by the deceast Viscount of Arbuthnot to midle with the viscounts writts or Chartor Chist or take from the Viscountes the Custody of her Cheldrein or to remove her from the house of Arbuthnot or anywayes to trouble or molest her in the Custody and keeping of her said Cheldrein or in the peacable possession of the said housses untill the first day of december nixt to come And in the mean time Recomends to the Lords Ross and Polwarth The Lord Advocat and Lord Justice Clerk to meet with both parties or to hear and Consider what may be said for them, And indeavor to setle and agree them and incaice of deficulty to report to the Councill And Declairs any thrie of the saids Lords to be a suficient quorum.

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/91

Act

Act The Viscountes of Arbuthnot

Anent the petition given in to the Lords of their Majesties privy Councill be Anna Viscountes of Arbuthnot for her self and her Childrein under age with Concourse of the Earle of Southerland her father Shewing That quher it pleased God lately to remove her husband by death which hapned throw a hote violent feaver the very time of the petitioners being in Child bed and Caried him of in a few dayes without his haveing made any previous nominatione of tutors or testament or provisions for his Cheldrein, But ther being about hi in his sickness his sister the Lady Leyes and Severall other of his relationes They thought fitt to take the advantadge of his incapacity, and the petitioners indispositione and to Cause him subscryve a testament Containeing a nominatione of Tutors and Certaine other deeds according to their oun pleasure and not only to the visible neglect of the petitioner the mother of all his Cheldrein and of all his relationes, But to the manifast prejudice of the petitioners eldest sone his air and of the petitioners haill other Cheldrein But these deeds having been subscryved by him by the forsaid Contrivance in the hight and rage of a fever and Immediatly after he hade suffered a great deliquium throw a Convulsive fitt and without so much as haveing been ever read or truely and distinctly Consented to by him Cannot possibly subsist in law, And Farder these deeds doe in themselves containe such obvious inconsistancies as may plainely eneough evince after what maner they were elicit, For first altho ther be a nominatione of no less then nyne tutors yet nether is the mother the petitioner, nor any of her relationes noticed to be one of them, Secundo some of the tyme that they have Caused him name did Grossly malverse in the manadgment of his estate, which he gave them in his oun life, and quherof he himself was very sencible Tertio of the nyne tutors he makes thrie a quorum without any sinc quo non, so that the tutory may inavoidably fall in thrie quorums Quarto they Cause him expressly take from the petitioner the Custody and keeping of all her Childrein albeit four of them be under fyve years of age and her eldest sone not yet Eight and five of them daughters and two only sones, and this they have done So rudely and unnatureally (for far be it for any to think that this were her husbands deed) that they have not so much as given the petitioner the Custody of one of her Cheldreen even dureing her widow head Quinto they have made him appoint not only very small but strange and unequall provisions for his Cheldrein as thrie Thousand merks to ane elder daughter and Six Thousand merks per peice to two Immediatly younger Sexto The the2 appointments for the petitioners Cheldreins aliement be very hard and insuficient yet they make their father adjure them under the paine of his Curse not to come in the Contrary of what they call his will and pleasure And Lastly the appointments of the aliement are made So inconsiderable that some of the Cheldrein have almost a double more aliement in their younger years then the rent of their portiones that comes in Leiw therof in their elder years By which inconsistancies and absurdities It may plainely eneough appear that her deceast husband Could have Litle or no understanding for the time of what they made him doe But as these things were Contrived as said is, So not only was the petitioner removed by them (and rudely enough) at the doeing therof But it is very Certaine that he gave no directione for the wryting nor were the papers then written read to him or was he in any caice to understand them tho read nor Could he of himself signe them bot in effect hade his hand sett and led to them by one of the witnesses Upon all which grounds the petitioner according to his intrest of blood for her self and her said other Cheldrein raised reductione before the Lords of Sessione of the forsaid deeds But tho these pretended tutors have furnished them with a farder argument to remove them as suspect (albeit the forsaid nominatione were not null) by their presumeing to intromitt with papers and wrytes and the Charter Chist and other things before making Inventar yet they still persist to pretend to and exerce the forsaid office and have given Citationes to make Inventaries of the estate and wrytes and alsoe they threaten to take from the petitioner her Childreen and to remove her from her husbands house to a house they will Call the petitioners Joyntur house tho not all in repair or habitable So that the petitioner is necessitate in a caice so hardly Circumstantiat and which admitts of no delay now in this vaccatione time to apply to the saids Lords for a necessary and therfore doubtless a Just remeedie And seing it is weell knowen and obvious what prejudice the petitioner and her poor Cheldrein may sustaine by the methods that these unkynd freinds have taken and by their prosecuteing and Improveing of the same and that now in this time of vacatione the petitioner has no remeedie and that even tho the sessione were sett the reductione the petitioner has intended must have termes and may abyde a long proces In which interim these pretended tutors (wherof five only and these the least desyreable of them have accepted) may doe such hurt and prejudice as ought in all reasone to be prevented And Therfore humbly Complicating the saids Lords to the effect aftermentioned The Lords of their majesties privy Councill having Considered this petitione given in to them be the Viscountes of Arbuthnot and answers made therto for Sir Thomas Burnet of Leyes They heirby prohibit and Discharge the tutors nominat by the deceast Viscount of Arbuthnot to midle with the viscounts writts or Chartor Chist or take from the Viscountes the Custody of her Cheldrein or to remove her from the house of Arbuthnot or anywayes to trouble or molest her in the Custody and keeping of her said Cheldrein or in the peacable possession of the said housses untill the first day of december nixt to come And in the mean time Recomends to the Lords Ross and Polwarth The Lord Advocat and Lord Justice Clerk to meet with both parties or to hear and Consider what may be said for them, And indeavor to setle and agree them and incaice of deficulty to report to the Councill And Declairs any thrie of the saids Lords to be a suficient quorum.

1. NRS, PC2/25, 66r-68r.

2. Sic.

1. NRS, PC2/25, 66r-68r.

2. Sic.