[1705/6/101]*[print] [email] [cite] [preceding] [following]
Anent the summonds raised and granted conform to the act of parliament by deliverance of the lords of council and session and pursued before the parliament at the instance of Sir Walter Seton, advocat, against his creditors and their factor afternamed, viz. Robert Malloch, merchant in Edinburgh, Alexander Broun, merchant there, Margaret Blyth, daughter lawful to the deceased Mr Henry Blyth, doctor of medecine, Mr Andrew Handiside, writer in Edinburgh, her factor for his interest, Margaret Kilpatrick, relict of the deceased William Dick, writer there, and Mr James Kilpatrick, late schoolmaster in Ireland, makeing mention that where the pursuer being in his younger years induced to sign some bonds, either with or for his father, albeit it be notour that the pursuer never had any portion from him, the said pursuer thereby and by other ingagements of his own through the severity of his creditors, is reduced to difficulties and cannot have personal freedom to prosecute his affairs, unless a protection be granted to the pursuer by the parliament. And seeing, in order thereto, it is necessar that the said pursuer's creditors or their factors be cited before the parliament in manner prescribed by the second act, fifth session of King William's parliament, he had, therefor, craved the lords of council and session would grant warrand to the pursuer to have letters directed for citeing his creditors afternamed before the then ensuing court of parliament to the effect aftermentioned, which the said lords, by their deliverance of the date the twenty seventh day of June last, granted warrand for to the effect after expressed, and anent the charge given in manner underwritten, by vertue of the said summonds to the forenamed defenders, to have compeared before the said high court of parliament at an certain day now bygone, with continuation of dayes, to have answered at the instance of the said pursuer, that is to say to have heard and seen an protection granted by the parliament in favors of the said pursuer in order to his haveing personal freedom to prosecute his affairs, as in the said summonds and executions thereof more fully is contained. The said pursuer compearing by Mr Francis Grant, advocat, his procurator, and the said haill defenders, being absent at first calling of the said summonds in manner aftermentioned, but thereafter at calling thereof this day, the said Robert Malloch, Alexander Broun, Margaret Blyth and Mr Andrew Handiside, her factor, compearing by Mr David Forbes, advocat, their procurator, the foresaid summonds and executions thereof, with the alleadgeances of both parties compearing, as said is, and the absence of the said Mr James and Margaret Kilpatricks, two of the defenders, being all at length heard, seen and considered by her majesties' high commissioner and the estates of parliament, and they being therewith well and ripely advised, her majesty, with advice and consent of the said estates, granted and hereby grants personal protection to the pursuer for any civil cause or debt whatsoever ay and while the parliament recall the same, because the forenamed defenders, being all lawfully cited conform to the said summonds by an messenger at arms in manner underwritten, viz. the said Robert Malloch, Alexander Broun, Margaret Kilpatrick and Mr Andrew Handiside, factor foresaid, all personally apprehended in Edinburgh and the said Margaret Blyth and Mr James Kilpatrick as being presently furth of this kingdom, by open proclamation at the mercat cross of Edinburgh, and peir and shoar of Leith, to have compeared at a certain day now bygone, with continuation of dayes, before the high court of parliament to have answered at the instance of the said pursuer, and to have heard and seen protection granted by the parliament in his favors in order to his haveing personal freedom to prosecute his affairs, or else to have shown an reasonable cause in the contrare, with certification to them if they failyied, her majesty and her commissioner and estates of parliament would grant the pursuer a protection in the terms of the act of parliament. After elapseing of the said day of compearance, the foresaid summonds was, in the terms of the act of parliament, after opening the house and before sitting down of the parliament, called at the patent gate of the parliament house, but there being no compearance made then for the defenders, the said summonds and cause was this day again called in the usual manner, in presence of her majesties' high commissioner and the estates of parliament. where the said Mr Francis Grant compeared for the pursuer and the said Mr David Forbes compearing for the said Robert Malloch, Alexander Broun, Margaret Blyth and Mr Andrew Handiside, her factor, did for them crave to see the process, to which it was answered by the said Mr Francis Grant that the defenders cannot now claim to see the process in hoc statu when the process is come in to be advised, and he ought to have compeared at first calling and then craved to see the process and, therefore, the dilator ought to be repelled. Whereupon, her majesties' high commissioner and the estates of parliament repelled the alleadgeance and refused to allow them to see the process. Thereafter, the said Mr David Forbes alleadged that the defenders for whom he compears are creditors to the pursuer, and that he has made fraudulent conveyances in prejudice of his creditors and, therefore, ought not to have a protection. Whereunto the said Mr Francis Grant answered and denyed that the said pursuer had made any disposition in prejudice of his creditors, and that it is still intire to quarrell any disposition that is made by the pursuer in favors of his creditors as accords. With which debate abovewritten and with the absence of the said Margaret and Mr James Kilpatrick, two of the defenders, tho lawfully cited and oft times called to have compeared and defended in the said matter, as said is, her majesties' commissioner and the said estates, being ripely advised, they granted personal protection to the pursuer for any civil cause or debt whatsoever in manner foresaid, ay and while the parliament recall the same. Extract.