[1704/7/114]*[print] [email] [cite] [preceding] [following]
Prayers said. Rolls called and the absent members marked.
Minuts of the last sederunt read.
Ordered that the consideration of the papers relating to the plot come in immediatly after the accounts and nothing to interveen.
The act anent the wool again read and put to the vote, approve of this act or not, and carried approve.
Act continueing the commission for auditing the accounts of the publick funds, read the second time and, after several amendments made thereon, it was put to the vote, approve this act or not, and carried approve.
[1704/7/115]*[print] [email] [cite] [preceding] [following]
The lord chancellour, by order of parliament, gave thanks to the earls of Galloway, Northesk, Belcarras, Dunmoor and Stair, Robert Dundass of Arnistoun, Sir John Lauder of Fountainhall, John Haldan of Gleneagles, William Seaton of Pitmedden, younger, James Ogilvie of Boynd, younger, Colin Campbell, Mr John Clerk, Mr Dougald Steuart, Sir David Cunningham and Mr Robert Fraser, members of the said commission, for the exact diligence in their report, and allowed a gratification to four of their number, being a committie appointed by the rest, to whom there was given a sum to be distribute by them to their clerk and the other servants.
[1704/7/116]*[print] [email] [cite] [preceding] [following]
Petition [of] Archbald Houstoun, writer to the signet, craveing a gratification for his two years service as clerk to the late commission of parliament, read and he allowed to retain of the money in his own hands ane hundred pounds sterling for his said service as follows.
[1704/7/117]*[print] [email] [cite] [preceding] [following]
Her majesties' high commissioner and the estates of parliament, haveing heard the petition of Archbald Houstoun, writer to the signet, humbly shewing unto them that the petitioner, haveing had the honour to serve as clerk to the late commission of parliament anent the pole jM vjC and ninety three for the space of two years and upwards, dureing which time the petitioner served in the said office with all possible care and never exacted any thing from the officers for his said service. And seeing, by orders of the last commission for auditing the publick funds, any of the money that was brought in to the petitioner's hands is ordered to be transmitted intirely to the hands of their clerk, and that the commission to whom the petitioner served as clerk and who saw and knew his pains and diligence thought fit to referr the gratification they should think proper for him untill the dividend should be made, and seeing it is just that he should have a consideration and reward for his two years service and labour in the said affair, haveing received nothing at all from the officers, as said is, and now being to deliver up what of the fund of the pole money is in his hands, therefor, humbly craveing his grace and the honourable estates of parliament to allow and appoint to the petitioner such a suteable gratification and reward for his two years service and pains, as said is, as his grace and honourable estates should think fit, and to allow the petitioner to retain the same in his own hands, as the said petition bears. And his majesties' high commissioner and the said estates of parliament, haveing fully considered the said petition, and being therewith well and ripely advised, they allowed and hereby allow to the petitioner, for his above two years' service and pains, six hundred pounds Scots yearly, extending in all to twelve hundred pounds money foresaid, and allowed and hereby allow the petitioner to retain the said sum of twelve hundred pounds in his own hand.
[1704/7/118]*[print] [email] [cite] [preceding] [following]
Ordered that these who have claims to the respective funds and have not given in petitions be equally considered by the commission with these that have given in petitions.
Agreed that all who are lyable to diligence for cloathing their regiments and companies be specially taken into consideration by the commission according to the appropriations by acts of parliament.
[1704/7/119]*[print] [email] [cite] [preceding] [following]
Petition [of] Lieutenant Collonell Campbell craveing payment of arrears, read and remitted to the commission to consider the specialities therein mentioned.
Petition [of] William Montgomery, servitor to the earl of Seafield, lord high chancellour, craveing payment of arrears due to his father, read and ordered that one hundred pound sterling be payed him out of the first and readiest of the pole jM vjC and ninety three, in manner following.
[1704/7/120]*[print] [email] [cite] [preceding] [following]
Anent the petition given in and presented to his grace her majesties' high commissioner and the right honourable the estates of parliament by William Montgomery, servitor to the earl of Seafield, lord high chancellour, shewing that where Hugh Montgomery of Boreland, the petitioner's father, haveing served as corporal to the late earl of Eglintoun his troop, and thereafter as quarter master, there was due to him of arrears preceeding the first of February jM vjC and ninety one years the sum of one hundred pounds sterling money and the petitioner, haveing payed considerable sums for his said father when he was redacted to great straits and difficulties, even to the hazard of imprisonment and want of necessary subsistence for himself and family, and that the said Hugh Montgomery did faithfully serve his late majesty in the said offices wherein he spent his own means, whereby he was reduced to the foresaid straits and difficulties, therefore, craveing his grace and the honourable estates to allow the petitioner the arrears due to his said father whereunto he has right from him, for the causes foresaid, to be payed out of the pole money jM vjC and ninety three, which is lying in the hands of the clerk to the commission of parliament, which is the fund appointed for the foresaid arrears, as the said petition bears. Which petition and desire thereof, being this day read in presence of his grace her majesties' high commissioner and the said estates of parliament and they, haveing heard and considered the samen and being therewith well and ripely advised, they ordained and hereby ordain one hundred pounds sterling to be payed him out of the first and readiest of the pole money ninety three. Extract.
[1704/7/121]*[print] [email] [cite] [preceding] [following]
Petition [of] the Lord Forbes craveing payment of arrears, read and remitted to the commission to consider the specialities therein mentioned, and Lieutenant Collonell James Bruce of Kennet and Lieutenant Collonell Reid their cases likewayes remitted to the commission.
Petition [of] Major James Cunninghame of Aiket craveing payment of arrears, read and remitted to the commission.
Petition [of] Elizabeth Maxwell, spouse to Captain Robert Drummond, and Jean Drummond, his sister, as haveing right from Captain Thomas Drummond, also her brother, craveing payment of arrears due to them, read and remitted to the commission, and the case of Lieutenant John Murray in the earl of Tullibardine's late regiment likewayes remitted to the commission.
Petition [of] Lieutenant Alexander Stirling craveing payment of arrears, read and remitted to the commission.
Petition [of] Lieutenant Collonell William Hay of Park craveing payment of arrears, read and remitted to the commission for the publick accounts to consider the petitioner's case, with that favour which his present condition, and the loseing of one of his brothers in Darien and another before Namure, justly deserved.
Petition [of] Captain Thomas Hay craveing a protection read, and a warrand granted to cite his creditors on twenty four hours warning.
[1704/7/122]*[print] [email] [cite] [preceding] [following]
Petition [of] Sir Alexander Bruce of Broomhall and partners craveing repayment of depursements for the army out of some proper funds read, and remitted to the commission for publick accounts, this remit neither sisting execution against him and partners, nor at his cautioners and partners instance against him for their relief.
Petition [of] Sir George Hamilton craveing payment of bygone sallaries due to him, read and remitted to the commission to consider his case and determine therein as they shall find just, in manner following.
Her majesties' high commissioner and the estates of parliament haveing heard the petition of Sir George Hamilton of Tulliallan, humbly shewing unto them that where his majesty King William, of ever glorious memory, by his letters patent of the date at Kensingtoun, the fifth day of January, jM vjC and ninety one years, and thereafter expede under his majesties' great seal of this kingdom, did nominat and appoint the petitioner receiver general of the funds of supply and inland excise and pay master general of the army, which offices by the said letters patent the petitioner was to brook and enjoy till the same were recalled by his majesty, with all the profites and emoluments known to appertain to the said office, and for the petitioner's pains and trouble in the discharge thereof, six hundred pounds sterling of yearly sallary was appointed to him by the said letters patent, as the same produced with the said petition bears. The petitioner did enter upon the said office and continued therein several years and discharged the same to the satisfaction of the lords of thesaury and all others concerned, as is well known to several of their lordships, [and] he received two years and three months sallary and there is yet due to him upwards of five years preceeding the king's death, his commission not haveing been recalled dureing that time. And, therefore, craveing his grace and honourable estates of parliament to consider the premisses and ordain the petitioner to be payed off the bygone sallaries due to him in the way and manner and out of such funds as his grace and their lordships should think most proper, as the said petition bears. And her majesties' high commissioner and the said estates, haveing considered the said petition this day, they remitted and hereby remit to the commissioners for the publick accounts to consider the petitioner's case and determine therein as they shall find just.
Petition [of] Cornet John Murray craveing payment of arrears, read and remitted to the commission.
Petition [of] James Maxwell, John Drummond and James Dunlop, late general receivers, craveing payment of the balance of an account due to them, read and remitted to the commission to consider the petitioners' case and determine therein.
Petition [of] Issobell Ker, lady Manderstoun, craveing payment of arrears due to her deceast husband, read and remitted to the commission.
Petition [of] the dutchess of Argyll craveing payment of arrears due to the late duke of Argyll, read and remitted to the commission.
Petition [of] Captain James Stevenson craveing payment of arrears due to him, read and remitted to the commission.
Petition [of] Sir William Hope of Balcomie craveing payment of arrears due to him, read and remitted to the commission.
[1704/7/123]*[print] [email] [cite] [preceding] [following]
Ordered that all the officers that went to Caledonia have preference out of the respective funds in which they are concerned.
[1704/7/124]*[print] [email] [cite] [preceding] [following]
Petition [of] James Bayne craveing payment of a sum due to him, read, the parliament declared they would take this petition and the petitioner's case to their consideration when they can conveniently and, in the mean time, recommend to the lords of thesaury to pay the petitioner yearly for his aliment one hundred pounds sterling to be payed quarterly ay and while his case be taken into consideration, which recommendation etc. is as follows.
Her majesties' high commissioner and the estates of parliament, haveing heard the petition of James Bayne, her majesties' masterwright, humbly shewing unto them that King Charles the second, haveing considered the ruinous condition of his palace of Holyrudehouse and of the castles of Edinburgh, Stirling and Bass and that, for the safety of the kingdom, these castles ought to be repaired and a palace built for the better reception of his majesty and his successors whenever they should visit their ancient kingdom, and also for the accommodating their high commissioners and chancellour and others officers of state to parliaments for doing the necessary affairs of the kingdom at any time, the petitioner being imployed as master wright to the foresaid works, when the funds appointed for defraying the expences thereof were exhausted and there was not money in the publick thesaury for perfecting the same, the petitioner, haveing a stock of timber of his own in the buss of Leith at the time to the value of fifty thousand pounds Scots as can yet be instructed, he not only furnished the greatest part thereof to the said work, but also for paying the workmen he raised thirty three thousand pounds out of the hands of the earls of Tweeddale, Panmure and Strathmore and other persons who were his debitors and, when all this came short of finishing the work, he ingaged his credit and borrowed to the value of twenty seven thousand, five hundred pounds money foresaid, from several persons, for perfecting the said palace and castles. These four last sessions of parliament the petitioner applyed himself to his majesties' high commissioner and right honourable estates of parliament, and in the first session he obtained an act recommending him to his majesty for taking some course for his payment and to the lords of thesaury for subsistance; and in the second session, there being a committee appointed for considering the petitioner's counts and instructions thereof, they reported that they had seen his counts and instructions by which the publick was resting to the petitioner the sum of eighty one thousand, seven hundreth and sixty nine pounds Scots. After this report was made, his majesties' commissioner and estates of parliament were considering to determine a fund for the petitioner's effectual payment, but the parliament riseing sooner than was expected, there was nothing done for him but only an act past in his favors again recommending him to his majesty for payment and the lords of thesaury for subsistence. In the third session of parliament the petitioner's case was again recommended to a committee for finding out a fund for his payment, but through the multiplicity of affairs and shortness of time nothing was done, but again the petitioner was recommended to his majesty for payment and to the lords of thesaury for subsistence, and if payment were not made the committee assured the petitioner that a fund should be determined for his effectual payment at the next session of parliament. But in the last session of parliament, tho the petitioner applyed by way of petition yet nothing was done for him. The petitioner humbly represents that he is utterly ruined except his grace and honourable estates prevent it, for his creditors have been these twenty years in possession of all that he has and that for these very debts which he contracted for the publick, besides he is oblidged to pay these twenty four years bypast annualrent of twenty seven thousand, five hundred pounds principal which he borrowed for carrying on the said work and the annualrent in the said time extends to thirty nine thousand and fifty pounds from Whitsunday jM vjC and seventy eight to Whitsunday jM vijC and two, being twenty four years' principal and interest, extends to sixty six thousand, five hundred and fifty pounds that the petitioner is indebted and which he contracted for the publick, besides the expences of adjudication and other legal diligence which he must also pay. And when the petitioner is payed the sum of eighty one thousand, seven hundred and sixty nine pounds resting by the publick to him, and that he has payed the neat sums borrowed and annualrents thereof there will be nothing remaining to him for all his great stock abovewritten but only fifeteen thousand, two hundred and nineteen pounds, and which compleats his misery, haveing given out his own stock of fifty thousand pounds and raised the sum of thirty three thousand pounds for furnishing the said works and paying the workmen, he is thereby incapacitated from selling timber as he was wont and also from following his imployment as wright and has been under this inability of doing any thing for himself these eighteen years bygone. The honourable estates have thought it worth their consideration, and becomeing the honour of the kingdom, to determine and appoint funds for paying what was resting to the souldiers and the petitioner humbly conceives that the building of his majesties' palace and repairing the castles and forts are no less necessary for the honour and safety of the kingdom, and seeing the petitioner, out of a generous disposition, love to his countrey and confidence to the publick, did expend his own fortune and contract debts for accomplishing and perfecting the said works, its hoped his grace and honourable estates will prevent the petitioner's ruin. The publick may yet stand in need of the assistance of privat persons, but if they suffer the petitioner to perish, his ruin will discourage others and none hereafter will adventure to give money to the publick except when they see effectual funds for their reimbursements, which may too often be of pernicious consequence to the nation. Therefore, craveing his grace and the right honourable estates of parliament to take the petitioner's case to their serious consideration, and in regard of the publick, the credit of the nation and justice to the petitioner to give an act finding the said eighty one thousand, seven hundred and sixty nine pounds Scots due to the petitioner, and appoint a fund out of which he may be payed the same with annualrents thereof since the earl of Tullibardine's session of parliament, at which time it was found due and yearly and proportionally dureing the not payment that the honour of the kingdom may be preserved, the petitioner's ruin prevented and all persons may be incouraged to carry on publick works, and advance money to the compleating of them when they shall hear and see what justice the right honourable court of parliament has done to the petitioner, as the said petition bears. And her majesties' said commissioner and the estates of parliament foresaid, haveing this day considered the said petition, they declared and hereby declare they will take the said petition and the petitioner's case to their consideration when they can conveniently and, in the meantime, they recommended and hereby recommend to the lords of her majesties' thesaury to pay to the petitioner yearly for his aliment by quarterly payments the sum of twelve hundred pounds Scots money ay and while his case be taken to consideration.
[1704/7/125]*[print] [email] [cite] [preceding] [following]
Petition [of] Sir James Steuart, her majesties' advocat, craveing a process of proveing the tenor may be remitted to the lords of session to be by them cognosced and finally determined with a parliamentary power, read, and remitted to the lords of session to determine in the said process summarly without abideing the course of the roll, which remit is as follows.
Anent the summonds and action for proveing the tenor raised and intented before the high court of parliament at the instance of Sir James Steuart of Gutters, her majesties' advocat, against Robert Johnstoun, son and heir to the deceased James Johnstoun, writer to the signet, and Anna Hamilton, his mother and relict of the said James, William Ker, son and heir to the deceased William Ker, factor to the estate of Kincavill, and Kathrine Hamilton, his mother, makeing mention that where in the year jM vjC and eighty one the pursuer, being chosen arbiter betwixt the deceased James Johnstoun, writer to the signet, and the rest of the creditors of Kincavill, the deceased William Ker, factor for the estate, sent to Edinburgh two thousand merks to be delivered by the said Sir James Steuart to the said James Johnstoun upon his recept and discharge, which the said Sir James Steuart really delivered and got James Johnstoun's discharge, and marked it upon the back to be delivered to the said William Ker, but the pursuer's troubles superveening and he, being chased away the said year, his papers were also secured† and the discharge some way miscarried, whereupon, at his return in the year jM vjC and eighty eight, the said deceased William Ker, his son and relict, pursued the said Sir James Steuart for the said discharge, or to repay them the two thousand merks. And tho he proved by his servant Thomas Spence that he had delivered it, and that even the parties themselves are under the conviction that he did deliver it, yet James Johnstoun, being then dead and his son then a minor, the pursuer could not get the discharge made up but was necessitat to succumb to a decreet unless he could recover or make up the discharge betwixt and a certain day, and seeing that he lost the said discharge by his being necessitat to retire in the year jM vjC and eighty one, against which and all damnages sustained thereby he is by the act of parliament jM vjC and ninety years to be reponed, and that he has now found out the documents underwritten, viz. First, besides the said Thomas Spens his oath and deposition who was the pursuers servant for the time, that depones distinctly of the delivery of the money to the said deceased James Johnstoun, and of his granting of the discharge, and of the pursuers haveing the discharge amongst his papers, and how it miscarried and that the said deceased James Johnstoun did, while he lived, acknowledge the receiveing of the money, the pursuer produces the deceased William Ker's letter sent to him with the money upon the fifth of May jM vjC and eighty one, with a note made then upon the back of it written with the pursuer's hand, but with such old and decayed ink as any man may be convinced it was then written and runs in thir terms: this two thousand merks was delivered to James Johnstoun who gave therefore his discharge to Mr Ker. Secondly, the pursuer likewayes produces an inventory of writs left in the press at the pursuer's house at Bristo, which was made by James Steuart, his nephew, immediatly after the pursuer fled, and is a known hand write and of old ink and verifies it self by occular inspection, which bears fifth bunch charter and seasine, Lord Lindsay to Ninian Mackmoran, discharge James Johnstoun to William Ker of two thousand merks etc., which discharge is the very discharge lost and was then left by the pursuer, as said is. Thirdly, it is not imaginable that the deceased James Johnstoun, who lived for years after the jM vjC and eighty one the date of the discharge, would have been silent and not complained for want of the said two thousand merks, nor in effect hath the want of the said two thousand merks been complained of now these twenty four years, only the said William Ker's son and relict fearing they may be troubled for want of the discharge have been instant with the pursuer to have it made up in manner by him represented. And fourthly, the pursuer may own so much of probity and credit as to offer his oath that as he received the said two thousand merks in two sealed bags to be delivered to the said James Johnstoun, he accordingly delivered the same and got James's discharge, tho now lost, but which is craved to be made up according to the tenor following, and these are the pursuer's documents for makeing up the said discharge which he hoped would satisfie her majesty and the estates of parliament for makeing up the tenor of the said discharge, wherefore necessar it was for the pursuer to have summonds for that effect in manner underwritten and anent the charge given by vertue of the said summonds to the said Robert Johnstoun and Anna Hamilton, at their dwelling houses, by one of the macers of session, and to the said William Ker and Kathrine Hamilton and William Bell, toun clerk of Linlithgow, now her husband for his interest, personally apprehended by an messenger at arms, to have compeared before her majesties' high commissioner and the honourable estates of parliament at a certain day now long bygone with continuation of dayes to have answered at the instance of the said pursuer in the said matter, that is to say the said defenders to have heard and seen the foresaid discharge now lost and amitted, made up and proven by decreet of parliament to be of the tenor following, viz.
I, James Johnstoun, writer to his majesties' signet, do hereby grant me to have received by the hand of James Stuart, advocat, from William Ker, factor appointed by the lords for the lands of Kincavil belonging to Whitehead of Park, upon which I am a preferable creditor, the sum of two thousand merks Scots money of the rents thereof and, therefore, discharges the said William Ker, as factor foresaid, of the said sum of two thousand merks of the rents of the said lands preceeding the year jM vjC and eighty one, oblidgeing me, my heirs and executors to warrand the samen at all hands and against all deadly, and consents thir presents be registrat in the books of councill and session for conservation and, if need bees, to have the strength of a decreet, that letters may pass hereon as effeirs and thereto constitutes [...] my procurators, in witness whereof (written by John Clerk, my servant) I have subscribed thir presents with my hand, at Edinburgh, the [...] day of [...] jM vjC and eighty-one years, before these witnesses, the said John Clerk and [...]† Ja[mes] Johnstoun, John Clerk, witness [...]. And the samen being so made up to hear and see the samen decerned and declared by decreet foresaid to be a sufficient and valid discharge and of as great force, strength and effect in judgement and outwith the same and in all cases and causes in time comeing as if the principal discharge it self were extant and not amitted and lost in manner foresaid, conform to the laws and dayly practique of this realme used and wont in the like cases in all points, or else to have alleadged an reasonable cause in the contrare why the samen should not be done, with certification to the said defenders if they failyied to compear her majesties' said commissioner and the estates of parliament would proceed in the said matter and decern, make up and declare in manner foresaid, as in the said summonds and executions thereof is fully expressed. The said Sir James Steuart, pursuer, compearing personally who, for instructing the said summonds, produced in presence of her majesties' high commissioner and the said high court of parliament the abovementioned principal deposition or oath of Thomas Spens, writer in Edinburgh, taken before the Lord Aberruchill on the twentyeth of December, jM vjC and ninety nine, in the action pursued before the lords of council and session at the instance of the said William Ker and his mother against the said Sir James Steuart, with the foresaid missive letter directed from William Ker to the said pursuer of the date abovewritten and the note, in the words above expressed, written thereon, together also with the foresaid inventory mentioned in the said summonds and founded on, as is above specified, for makeing up the said discharge. And the said haill defenders, who were summoned in manner foresaid to this action, compearing by Sir Walter Pringle, advocate, their procurator, at first calling of the said summonds in the usual manner at the great gate of the parliament house, after elapsing of the day to which they were cited by vertue thereof, and there being a petition to her majesties' high commissioner and the said estates of parliament thereafter given in and presented by the said Sir James Steuart, pursuer, humbly shewing unto them that where he has an action for proveing the tenor of a discharge of two thousand merks granted by the deceased James Johnston, writer to the signet, to the deceased William Ker, factor for the estate of Kincavil, which hath now depended before the high and honourable court of parliament these two sessions, the pursuer should not trouble his grace and their lordships with his reason of intenting this process before the parliament viz. that the loss of this discharge happened through the pursuer's being necessitated to fly in the year jM vjC and eighty one whereby his papers were exposed to search upon search and to great confusion, against which trouble and the cause of it being reponed by the parliament jM vjC and ninety, with an assureance of full reparation of losses, he thought it most proper first to table his action before the parliament. But first and last haveing no purpose to decline the lords of session and being, likewayes, in this session of parliament as he was in the last, hindred by a heavy fit of the gout to prosecute this action in parliament, which prosecution would only be for the obtaining of the remit desired by the said petition and for no other purpose, he being fully satisfied that the lords of session are the most proper judges in all such matters and, therefore, craveing his grace and their lordships to remit the said action to the said lords of session to be by them cognosced and finally determined with a parliamentary power, it being necessary for the pursuer to preserve the dependence, as the said petition bears. Her majesties' high commissioner and the said estates of parliament, haveing this day fully considered the said petition and being therewith well and ripely advised, they remitted and hereby remit the petitioner's case to the lords of session to be by them cognosced and determined summarly without abideing the course of the roll.
[1704/7/126]*[print] [email] [cite] [preceding] [following]
Petition [of] Collonell Scipio Hill craveing payment of arrears due to him, read and his case remitted to the commission to be determined by them with that favor and dispatch which his pains and charge in comeing twice to Scotland on that affair, and his necessary residence in England, does justly require, which remit is as follows.
Her majesties' high commissioner and the estates of parliament, haveing heard the petition of Lieutenant Collonell Scipio Hill, humbly shewing unto them that there is due to him eleven months clearings and a half, viz. from the first of January, jM vjC and ninety seven to the fifeteenth of December, jM vjC and ninety seven as lieutenant collonell and captain of Sir William Douglasse's regiment of foot, being one hundreth and fifeteen pounds, fifeteen shillings sterling as appeared by a copy of a declaration produced, with the said petition, under the hand of Captain Charles Douglass, son to the said Sir William, then agent to the said regiment there, is also due to the said lieutenant collonell three hundreth and fifty one pounds, nineteen shillings and three pence sterling, being his half pay as lieutenant collonell and captain of dragoons from the fifeteenth of December, jM vjC and ninety seven to the first of July, jM vijC and one, as appeared by a copy of his late majesties' letter and an account drawn out of the thesaury books produced also with the said petition. And whereas the petitioner has come twice from London, his place of abode, to Scotland on purpose to have got payment of the above sums which put him to vast expences, yet hitherto he hath not got any part of it, and, therefore, craveing his grace and the honourable estates of parliament to grant warrand upon Sir William Meinzies for payment of the above sums, being in all four hundred [and] sixty seven pounds, fourteen shillings and three pence sterling, as the said petition bears. And her majesties' commissioner and the said estates of parliament, haveing considered the said petition and being therewith well and ripely advised, they recommended and hereby recommend the petitioner's case to the commission for publick accounts, to be determined by them with that favor and dispatch which his pains and charge in comeing twice to Scotland on the affair and his necessary residence in England does justly require.
[1704/7/127]*[print] [email] [cite] [preceding] [following]
Petition [of] Sir William Meinzies craveing to be exonered of his tack and tack duty upon payment of the five thousand pounds sterling, decerned by the parliament to be payed at Martinmass and Candlemass next, read and the marquess of Lothian and the officers of the army allowed to see and answer the same the first sederunt after to morrow and, in the mean time, remit to the commission the scrutiny of his account.
Proposal [of] Doctor Chamberlane and James [...] Armourer† anent a land credit, remitted to the commission and to report.
[1704/7/128]*[print] [email] [cite] [preceding] [following]
Petition [of] Lord Bargany craveing a decreet of the commission of parliament anent the pole, with the answers thereto by the tacksmen of the pole, read and remitted to the lords of session to determine the cause summarly, with a parliamentary power and, in the mean time, sisted execution as follows.
Anent the petition given in and presented to his grace her majesties' high commissioner and the right honourable the estates of parliament by William, lord Bargany, shewing that where there was an alleadged decreet pronunced against the petitioner as cautioner for David Crauford of Drumsuie to make payment of two hundred and ten pounds, seventeen shillings and six pence sterling as the said David's proportion of four thousand, six hundreth [and] thirty nine pounds, four shillings [and] eight pence and two third parts of a penny sterling, upon which decreet the petitioner is threatned to be apprehended by vertue of a warrand specially granted against him, he is under a necessity to mean himself to the high court of parliament for redress because this pretended decreet was pronunced by a commission granted in the ninth session of King William's parliament to members of the said parliament, and which did expire with it, and the said commissioners haveing a parliamentary power, there can be no application made to any other court for redress. He does, therefore, with all dutiful respect to the members of the commission, humbly contend that he cannot be lyable for the reasons following. Primo, by the foresaid sixteenth act, parliament jM vijC and one the said commissioners were impowered to proceed and determine, with a parliamentary power, the differences betwixt the old and new tacksmen in relation to the pole jM vjC and ninety three, and to decide the question in relation to the vintuples wherein the old tacksmen may be found lyable for their concealments, and to apply what sums should be found resting towards the clearing of the arrears of the officers according to their claims. But the decreet alleadged obtained against the petitioner narrates mutual processes before the said commission as if they had been impowered to determine anent the pole jM vjC and ninety three betwixt the tacksmen of the said pole and their cautioners on the one part, and the officers of the army for whose payment the pole was imposed on the other part, whereby it is evident that there were greater powers ascribed to the commission than were contained in the act of parliament, for by the act and commission of parliament they were only impowered to act as judges betwixt the old and new tacksmen of the pole. As for what concerned the officers, the commissioners were only to apply what should be found resting in the same manner as if they had the power of the thesaury as to that particular effect and, therefore, the decreet proceeding upon processes at the instance of the officers and not at all as to the dependencies betwixt the old and new tacksmen of the pole is null. And in the next place, the foresaid alleadged decreet ascribes to the commissioners a power to determine betwixt the partners and cautioners, whereas there is not a word of cautioners in the act of parliament, and so it is that the petitioner is decerned as cautioner and consequently the decreet in that respect is null. And it is to be specially noticed that this commission is extraordinary and is of strict interpretation being praeter communes juris regulas. But that wherein materially the petitioner is lesed and expects redress, is that Drumsuy for whom he only interceeded as cautioner was not bound in the tack nor for the tack duty, but was bound to relieve the principal tacksmen of a twenty two part of their hazard, and the petitioner became cautioner as in an oblidgement to privat parties. Now if the principal tacksmen had pursued Drumsuy or the petitioner for the relief of the sentence pronunced by the commission against them, they would have defended themselves unanswerably that they are only decerned for the balance of the money collected in their own hands, for which Drumsuy could not be lyable because, before the pole fell due or the collection made, Drumsuy was bankrupt and fled and never intrometted with a shilling. The petitioner shall not trouble the parliament further to represent that this decreet has neither lybell nor because which even in decreets of parliament uses to be observed, for its conceived that, altho the petitioner mentions certain informalities to remove the force of the said decreet as to himself, yet the special circumstances of the petitioner's case does merit a remedy, for the other partners decerned by the commission were the administring and collecting partners and have or ought to have the very money in their hands for which the decreet proceeds and, therefore, they ought to make the same furthcomeing and Drumsuy and the petitioner ought to be free. And, therefor, craveing his grace and the honourable estates of parliament, in consideration of the specialities of the petitioner's case, viz. that before ever the collection of the pole began Drumsuy became bankrupt and fled and never intrometted with a farthing, and that the decreet of the commission is expressly founded upon the collection, to suspend the foresaid decreet as to Drumsuy and the petitioner simpliciter, as the said petition bears. Whilk petition and desire thereof, being read in presence of her majesties' high commissioner and the said estates of parliament and haveing heard and considered the same they, by their deliverance thereon the nineteenth of August instant, ordained Sir John Cochran to see and answer the same against the then next diet of parliament, but declared the same did not sist execution. Accordingly the said Sir John Cochran and the other tacksmen of the pole jM vjC and ninety three, and their partners and officers of the army, haveing seen the foresaid petition, returned it with the answers following to the samen petition given in by the said William, lord Bargany, whereby he craved that the decreet of the commission granted in the ninth session of King William's parliament haveing power to decide and determine all contraversies of the said pole both in relation to the partners themselves, and as to the preferences betwixt the countrey and the army may be suspended simpliciter against him, he being decerned as cautioner for Drumsuy for two hundred and ten pounds sterling money, as the hazard and damnage which did arise from the said tack of the pole. His lordship insists upon several pretended nullities in the said decreet and more especially he alleadges that the decerniture against him and Drumsuy is for the balance of the money collected in their own hands for which Drumsuy could not be lyable, haveing become bankrupt before the pole either fell due or the collection made, which, with all humble submission to the members of this honourable court of parliament, they conceived to be most irrelevant and never precedented that a petition of this nature should take from them and the officers of the army their just right already established by vertue of a decreet of the foresaid commission, it not being unknown to his grace and the honourable members that there is a prescribed rule in law for redress if any party be lesed, viz. An appeal for remeed of law to the parliament, so that, if parties were allowed summarly by petitions to quarrell sentences of parliament, there should be a confusion in all parliamentary processes. But secundo, his alleadgeance is most falacious in so far as that Drumsuy was many years habit and repute most sufficient after the pole jM vjC and ninety three became indue, being concerned in the publick cess and excise of the shire of Air in the year jM vjC and ninety five, for whom the Lord Bargany was cautioner, and Drumsuy is no further decerned than any other of the copartners who did not collect more than he, so that this being already res judicata as well among the partners as betwixt his lordship and the officers by a commission haveing a parliamentary power, it was, therefore, humbly expected the said tacksmen, their partners and the officers of the army, being so well founded in law and reason, that his grace and the honourable members of parliament would never allow such a precedent, as the said answers also bear. Which petition and desire thereof, with the answers made thereto, being this day again read in presence of her majesties' high commissioner and the said estates of parliament, and they haveing heard and considered the same and being therewith well and ripely advised, they remitted and hereby remit to the lords of council and session to determine the said cause summarly with a parliamentary power and in the mean time sisted and hereby sists execution. Extract.
[1704/7/129]*[print] [email] [cite] [preceding] [following]
The account of the pole money the year jM vjC and ninety five read, whereof, and of the observations thereon made by the said commission of parliament, the tenors follow.
This pole was granted by the parliament jM vjC and ninety five for provideing ships of war and maintaining seamen for defence of the coasts with a complete number of land forces. After this pole had been in collection for a year the lords of the thesaury set the same in tack to John Campbell of Knockrioch, principal tacksman, and to Hugh Cunninghame and others, his partners, for the sum of two hundred and seventy six thousand pounds Scots.
| Charge of the pole jM vjC and ninety five | £ | s | d |
| Per tack duty of the pole, two hundred and seventy six thousand pounds | £276,000 | - | - |
| Ballance due to the tacksmen and partners, sixteen thousand, three hundred and eighty pounds | 16,380 | - | - |
| [Total] | £292,380 | - | - |
| Discharge of the pole jM vjC and ninety five | |||
| 1o. By cash given in to the admiralty, two hundred and thirty seven thousand one hundreth and twenty pounds | £237,120 | - | - |
| 2o. By seven per cent allowed Sir James Oswald for collecting one hundred and seventy five thousand and two hundred pounds | 12,264 | - | - |
| 3o. By the imbazlements of collectors, sixteen thousand five hundred and ninety six pounds | 16,596 | - | - |
| 4o. By the quadruples of the pole of the army, seventeen thousand, seven hundred and sixty pounds | 17,760 | - | - |
| 5o. By the pole of the episcopal clergy, six thousand pounds | 6,000 | - | - |
| 6o. By allowance to collectors, two thousand four hundred pounds | 2,400 | - | - |
| 7o. By loss of money cryed down, two hundred and fourty pounds | 240 | - | - |
| [Total] | £292,380 | - | - |
[1704/7/130]*[print] [email] [cite] [preceding] [following]
Observations on the pole jM vjC and ninety five
1o. That the third article, viz. the imbazlements of collectors, is not instructed and, supposeing it were, yet the commission are of opinion the tacksman and his partners were bound to the publick for the whole tack duty tho the whole collections had been imbazeled.
2o. That the quadruples of the army should not be allowed since their pay was in the hands of the commissaries and since the thesaury must be considered as the common debitor.
3o. That there should be no allowance for the pole of the episcopal clergie unless their number were instructed, considering that none but the episcopal ministers in Edinburgh were excepted, all other ministers being lyable in their pole as gentlemen.
4o. The two thousand, four hundred pounds mentioned in the sixth article of the discharge was not instructed except allennarly the sum of three hundred pounds.
5o. That this pole haveing been for a long time under collection has occasioned a considerable loss in the same.
6o. That whereas the tacksmen pretend to a balance of sixteen thousand, three hundred and eighty pounds, as is mentioned in the charge, they will be indebted to the publick in twenty six thousand, three hundred and seventy six pounds untill the foresaid observations be cleared, which would appear more clearly by the minuts of the commission the eleventh of February jM vijC and four and by the minuts of their committee the seventeenth of December jM vijC and three and these of the eleventh of January jM vijC and four.
Upon reading whereof, the first observation sustained, the tacksmen instructing the verity of the imbazlement before the commission. As to the second observation, after hearing the tacksmens' lawyers and debate thereon, it was put to the vote, allow the quadruples of the army as an article of the discharge, yea or not, and carried in the affirmative, and remitted to the commission to state the extent thereof. The third observation, remitted to be instructed before the commission otherwayes not to be allowed. The fourth observation read and the allowance mentioned therein was refused.
[1704/7/131]*[print] [email] [cite] [preceding] [following]
Account of the pole-money jM vjC and ninety eight read, whereof, and of the observations thereon made by the commission of parliament, the tenor follows.
Two poles were granted by the parliament jM vjC and ninety eight for clearing the arrears due to the land and sea officers, as likewayes to the seamen belonging to the ships of warr, with preference to those to whom any cloathing money was due before jM vjC and ninety one.
The said two poles were set in tack by the lords of thesaury and exchequer to William Cochran of Ferguslie and his cautioners for a tack duty of two hundred and fourty one thousand and two hundred pounds.
| Charge of the pole jM vjC and ninety eight | £ | s | d |
| Per the tack duty, two hundred and fourty one thousand and two hundred pounds | £241,200 | - | - |
| Discharge | |||
| 1o. Per payments made upon precepts from the thesaury, one hundred and ninety three thousand, five hundred and twenty two pounds, sixteen shilling | £193,522 | 16 | - |
| 2o. Per payments made to the seamen in part of their arrears, nine thousand and six hundred pounds | 9,600 | - | - |
| 3o. Balance due by Ferguslie, thirty eight thousand and seventy seven, four shilling | 38,077 | 4 | - |
| [Total] | £241,200 | - | - |
[1704/7/132]*[print] [email] [cite] [preceding] [following]
Observations on the account of the pole jM vjC and ninety eight
1o. That the first article was fully instructed and applyed to the ends and uses for which the said poles were granted, but no preference given upon account of the cloathing money.
2o. That tho Ferguslie does discharge himself of the sum of nine thousand and six hundred pounds payed to seamen, yet, by examineing his accounts, the commission finds not above seven thousand, two hundred pounds had been payed to them, which he, being questioned upon, acknowledged that because he had oblidged himself to pay up the remainder, he had inserted that article in his discharge.
3o. That several complaints were made upon Ferguslie by the seamen as haveing oblidged many of them to grant recepts for the whole of their arrears, whereas they received but the half.
4o. That the balance of Ferguslie's account, viz. thirty eight thousand and seventy seven pounds, four shillings is still resting by him, but in order to his exoneration there was a memorial given in by him now in the hands of the clerk of the commission wherein he represents his grievances and the reasons of his deficiency.
[1704/7/133]*[print] [email] [cite] [preceding] [following]
Upon reading of which account and observations, ordered that the commission take tryal of undue transactions made by the tacksmen, collectors or any persons concerned in the publick funds with the country or officers of the army, and report next session of parliament.
The second observation not allowed unless he instruct payment before the commission, [and] the third observation remitted to the commission to inquire thereanent.
[1704/7/134]*[print] [email] [cite] [preceding] [following]
Petition [of] Collonell George Mackgill, representing that William Cochran of Ferguslie, tacksman of the pole jM vjC and ninety eight, had extorted from him a defalcation of eight hundred and twelve pounds sterling, as the twenty fifth and eight parts of a sum contained in a precept drawn by the lords of thesaury for payment of cloathing money and arrears, read, with other complaints of defalcations extorted from the seamen and others of money due to them by the publick, and several abuses committed by him and his subcollectors in collecting and giveing out the said pole.
[1704/7/135]*[print] [email] [cite] [preceding] [following]
Ordered that the said William Cochran be carried to prison untill he find baill under the penalty of twelve thousand pounds Scots to compear to answer the complaints given or to be given in against him, and the further consideration of this affair continued till the next diet of parliament.
The lord chancellour, by order of the lord high commissioner, adjourned the parliament till to morrow at ten a clock.