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Anne, by the grace of God queen of Great Britain, France and Ireland, defender of the faith, to our lovits [...], macers or messengers at arms, our sherriffs in that part conjunctly and severally, specially constitute greeting. Forasmuch as it is humbly meant and showen to us by our lovit Sir Thomas Dalziell of Binns, barronet, that where the lords of counsell and session by diverse and sundry interloqutors pronounced in the process pursued at the instance of Barbara Cuninghame, lady Caldwell, elder, and Barbara Muire, lady Caldwell, younger, and John Fairly, alias Muire of Caldwell, her husband for his interest, against him, and particularly mentioned in the act of litis contestation extracted, have found him lyable passive as representing Generall Thomas Dalziell, his grandfather, for his fathers intromission with the rents of the estate of Caldwell as factor or assigney by his said grandfather, and by which interloqutor it is found that Generall Dalziell's entring into the full possession of the rents of the said estate was relevant to inferr the presumption that he continued in the same and uplifted the rents of the said estate, notwithstanding of his defence of bona fide intromission founded upon the generall's rights ratified by the parliament, and other defences proponed in the process, and he conceiving himself wronged by the saids interloqutors did, according to the priviledge given him by the Claim of Right, protest to us and the estates of parliament for remeid of law, as ane instrument taken upon the said protestation on the therty first day of July jM vijC and six years, in the hands of Andrew Marjoribanks, nottar publick, showen to us does testifie; and seing the said complainer is desirous to prosecute his said protestation before us and the estates of parliament, our will is herefore and we charge you that incontinent this our letters seen, ye pass and in our name and authority laufullie summond, warn and charge the saids Barbara Cuninghame, lady Caldwell, elder, and Barbara Muir, lady Caldwell, younger, and John Fairlie, alias Muire of Caldwell, her husband for his interest, and [...], clerk to the said process, personallie or at their dwelling places, on fourtie eight hours warning if they be within the toun of Edinburgh, and fifteen dayes warning if else where within this kingdome, to compear before our high commissioner and the estates of parliament at Edinburgh, or where it shall happen them to be for the time, the [...] day of [...] next to come in the hour of cause, with continuation of days, to answer at the instance of the said complainer: that is to say bringing with them, exhibiting and producing before our said commissioner and the estates of parliament the foresaid process, haill grounds and warrands therof, interloqutors and deliverances pronounced therin by the saids lords of counsell and session, and to hear and see the points complained of redressed and justice administrate therin; and, if need beis, to hear and see all laufull and necessar probation led and deduced in the said matter, and to give their oaths of verity upon such points as shall not be otherwise proven, or else show ane reasonable cause in the contrare, with certificatione to them if they faillzie, our said commissioner and estates of parliament will determine therin according to justice, and for the coast, skeath and damnadges the complainer may any wayes sustain therethrow. Attour that ye laufullie summond, warn and charge [...] to compear before our said high commissioner and estates of parliament or committy therof, and as our said high commissioner and estates of parliament shall see cause to bear leall and suthfast witnessing in the said matter, in sua far as they know or shall be speard at them, under all highest pain and charge that after may follow therupon. The which to do we committ to you and ilk ane of you conjointlie and severallie our full power by this our letters, delivering them be you duely execute and indorsate again to the bearer. Given under our signet at Edinburgh, the eight day of November and of our reign the fifth year 1706.
Ex deliberatione dominorum parliamenti, 9th November 1706, John MacKenzie
†Edinburgh, 3 December 1706
The defenders called by vertue of this summonds and executions by a masser at the patent door of the parliament house, after opening thereof and before the sitting of the parliament, Mr John Spotswood, compearing for the pursuer, and Sir John Fergusson for the defenders, who craved to see.