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Unto his grace James, duke of Queensberry, her maties high commissioner, and the right honorable the estates of parliament,
The petition of Lady Mary Bruce and William Cochran, younger, of Ochiltrie, her husband for his interest.
Humbly sheweth,
That the petitioners being informed that Sir Alexander Bruce of Broomhall designes to lay claime to the title and dignitie of earle of Kincardine as nearest aire male to the last earle of Kincardine, and accordingly to be admitted and received to his rank and place in parliament, and conceiving our right to the said title and dignitie to be better founded in law and exclusive of Sir Alexander's pretensions, humbly represent to your grace and lords that the last deceast Alexander, earle of Kincardine disponed and resigned his title and dignitie of e[arl] of Kincardine etc. in favours of the said Lady Mary Bruce, his eldest sister, and her aires of taillie therin specifit, which resignation was delivered by Sir John Cochran to the said Sir Alexander Bruce upon his receipt and obliedgment to redeliver the same when required, it being designed that the resignation should be made with his consent, and so all ground of competition being removed, her matie might conferr the said title and dignitie upon the said Lady Mary Bruce, conforme to her brother's said resignation in her favours. And albeit Sir Alexander's having the disposition and procuratories of resignation forsaid in his hands gave occasion to delay the compleatting of the said right by her maties grant upon the said resignation in favours of the said Lady Mary Bruce, yet the forsaid disposition and resignation made by the said Alexander, e[arl] of Kincardine, who was the last possesor of the said title and dignitie, is sufficient to exclude the right of any other of his aires male or of lyne albeit the same should not fully establish the right of the title and dignitie in the person of the said Lady Mary Bruce untill the same were conferred on her by her matie upon the forsaid resignation, as was decided by the lords of session Jully 11th 1633 Oliphant contra Oliphant, in which case the Lord Oliphant, having disponed his lands with the title and dignitie of the lordship of Oliphant to Patrick Oliphant and his aires male, containing ane procuratorie of resignation, ane reduction of the said right was intented by the said Lord Oliphant's daughter and her husband as being a paction anent a title of honour, which is not in commercio, not being allowed by the prince, and so null; and that the title should be decerned to pertaine to the pursuer as nearest aire of lyne to him, the lords found that because by the contract forsaid the persuer's father had disponed the title to the defender in which ther was a procuratorie of resignation, albeit the king had not conferred the honour according therto, that the father who was the last possessor, having disponed the said title and dignitie, was sufficient to denude him and his aires ay and while the prince should declaire his pleasure, whence it plainly follows that the forsaid disposition and resignation made by the said last deceast earle of the said title and dignity in favours of Lady Mary, his sister, does exclude any right that can be acclaimed by Sir Alexander as his aire male, albeit the same should not compleatly establish the right in her person untill her matie conferr the same upon the said resignation; and Sir Alexander's receipt and obliedgment forsaid bears not simply a procuratorie of resignation, but a resignation made by the said deceast earle in favours of the said Lady Mary, his sister. And upon his said obliedgment, Sir Alexander was required under forme of instrument to exhibite the said resignation (as the samen herewith produced bears), and as a resignation actually made would be a further step for compleatting the right as importing the soveraign's consent and acceptance of the resignation in favours of the person therin designed, so, albeit ther had been but a simple disposition and procuratorie of resignation qherupon no resignation had followed, the same would be sufficient to exclude all the disponer's aires and make the title to be at the soveraign's disposall, as was determined by the lords in the forsaid case. And the procuratorie of resignation, tho after the granter's deceass, will still be effectuall by vertue of the late act of parliament to the person in whose favours it is granted, when her matie shall be pleased to accept of the resignation and conferr the title accordingly.
Moreover, in the year 1663 ther was ane signature by King Charles the 2nd for a letter patent to be made in favours of Alexander, then earle of Kincardine, nameing, designing and ordaining the said Alexander, earle of Kincardine, his aires male and of taillie designed or to be designed by them earles of Forth, Viscount Bruce etc., and that in place of the title of earle of Kincardine lord Bruce of Torrie. And the said Alexander, last earle of Kincardine, sone to the forenamed Alexander, e[arl] of Kincardine to whom the said signature was granted, did, by the forsaid disposition and resignation, taillie his title and dignitie to the said Lady Mary, his eldest sister, and the aires of her body, whilks faillieing, to her other sisters and ther aires successive. And the soveraigne, having by the forsaid deed designed the forsaid title and dignitie to be to the aires of taillie that should be designed by the said e[arl] of Kincardine or his aires male, and therby ane innovation made of the former title conferred upon the earles of Kincardine, the petitioner's right to the said title and dignitie should be found preferable and exclusive of any right competent to Sir Alexander as aire male to the said earle, and upon which grounds and others we have raised ane declarator before the lords of session.
And seeing the admitting of Sir Alexander to the rank and place of e[arl] of Kincardine in the parliament would be very prejudiciall to our right forsaid whilst we were not heard upon our said right and interest so founded in law and reason and instantly verified by the writes founded on as is above deduced,
May it therfore please your grace and lords, upon consideration of the premisses, to stop the admitting or receiving of Sir Alexander unto the title, rank and dignity of the e[arl] of Kincardine untill your petitioners be heard upon our rights.
And your petitioners shall ever pray, etc.
A. McLeod
†Edinburgh, 3rd Octobris 1706
Her maties high commissioner and the estates of parliament, having heard this petition read in their presence, they continue the consideration therof untill the parties concern'd be heard befor them on the grounds therin represented the next sitting of parliament.
Seafield, cancellar[ius], I.P.D. p[arliamenti]
[A1706/10/14]*[print] [email] [cite] [preceding] [following]
Unto his grace James, duke of Queensberry, her majesties high commissioner, and the right honourable the estates of parliament, the representation of Lady Mary Bruce and William Cochran of Ochiltrie, her husband for his interest, against Sir Alexander Bruce of Broomhall.
By a patent under the great seal in anno 1647, Edward Bruce of Carnock is created earl of Kincardine, and tho it be pretended that the dignity was thereby provided to the heirs male, yet it is certain that in June 1663 this dignity was resigned in the hands of King Charles the second, who thereupon by a new gift created Alexander, then earl of Kincardine, the resigner, his heirs male and of tailzie designed and to be designed by them earls of Forth, viscount of Bruce, etc. lord Torrie etc. and that in place of the title of earl of Kincardine etc., but the troubles of this noble family stopt the expeding of this gift.
The deceast Alexander, earl of Kincardine, having no male-issue of his own body, had, by two several dispositions on very good grounds, resigned his title in favours of Lady Mary Bruce, his eldest sister, but before these came to be compleated by the soveraign, Sir Alexander Bruce of Broomhal offers to assume the title and dignity of earl of Kincardine, as pretended heir male, and thereby having right in the terms of the original patent to sit and vote in this present parliament.
Lady Mary Bruce and her husband have already given her majesties commissioner and the right honourable the estates of parliament a short view of their case in a late petition, and being by a deliverance of parliament ordained to be furder heared, it is now humbly contended that the said Lady Mary Bruce, her right to the title and dignity of Kincardine, is not only better founded in law, both feudal and municipal, but intirely exclusive of Sir Alexander Bruce's pretensions, in as far as the deceast Alexander, earl of Kincardine, her brother, had disponed and resigned his title and dignity of earl of Kincardine in her favours, which of it self was sufficient to denude the disponer, but much the rather that Sir Alexander does by his receipt acknowledge that he had got up and received into his hands a resignation made by the earl of Kincardine of his title of honour in favours of his sister Lady Mary, which resignation he obliges himself to redeliver on demand, whereby it is evident that as resignation was made, and that Sir Alexander had borrowed up the same, so his keeping up of this warrand, which is not yet delivered, was the plain and only stop of my Lady Marie's not having compleated her right. And it is a rule in law and justice, which will always have its due weight with this high and honourable judicatorie, that nemo debet lucrari ex propria culpa, and that Sir Alexander did industriously and contrair to the faith of his receipt keep up this resignation is evident from an instrument produced, bearing date at Cannongate, the 3d of October instant, when being required to deliver and perform in the terms of this abovementioned obligement, he acknowledged the having of and offered to deliver up two procuratories of resignation made by the late earl of Kincardine in favours of Lady Mary, his sister, but refused the having or delivering up of any resignation.
But tho Sir Alexander's receipt and the abovementioned instrument do fully clear the cause why the ladie's title of dignity could not be furder compleated, yet she urges for excluding Sir Alexander's pretensions these two plain grounds of law:
1. Whatever was the conception of the original patent of this dignity, yet all lawyers agree in this: that the present possessor of a dignity, with the concurrance of the soveraign, can alter the destination, conveyance and descent of the title of honour; and this is Lady Marie's case, for she now produces the signature abovementioned, proceeding upon the resignation of Alexander, then earl of Kincardine, and brother german to Edward, the first earl, whereby the title and dignity is provided to the earl's heirs of tailzie, designed or to be designed, which signature, tho never further compleated, did most effectually alter the former descent and intail of this dignity on the heirs male of the family. And this deserves to be the further regarded, that procuratories of resigning honours were not even before the late act of parliament considered to dye with the granters, and the descent of honour was still as different from that of heretage as their constitutions. And for clearing of this point, it were easie to condescend on many considerable families of this nation whose dignities and honours have been transmitted and are now enjoyed and possest by virtue of procuratories of resignation after the granter's death.
2. Whatever may be said for Lady Mary from Sir Alexander's keeping up the resignation in her favours, yet she now pleads, in behalf of her self and family, that in als far as her brother had disponed to her his title, honour and dignity of earl, he was eo momento thereby effectually denuded, for titles of honour, as they are not anailziable or in commercio, so, on the other hand, they are certainly extinguishable by the present possessors, and parties who enjoy them may quite their own interest. And tho Lady Mary could not claim this honour until her brother's disposition were approven by the soveraign, so it's as certain the same remains with her majesty; and Sir Alexander's pretensions are for ever excluded, the party to whom he pretends to be heir-male having been fully divested.
His grace her majesties high commissioner and the honourable estates of parliament are intreated to consider that what is now pled for Lady Mary Bruce has a full and plain self evidence, for, as the former signature in favours of the heirs of tailzie secures her right, so Sir Alexander Bruce's pretensions are intirely cut off by the late earl's disposition in the ladie's favours.
The decision of the lords of session on the 11th of July 1633, Oliphant contra Oliphant, is precisely Lady Mary Bruce's present case, where a party having right to a dignity, and disponing the same, was found capable to quite his own interest, and so to extinguish the same, that it remained with the soveraign; and tho in the intercourse of justice decisions may sometimes have varied, yet the honourable estates of parliament are intreated to consider that this is no common case:
For, 1. This is a decision of a supream judicatory de dignitate and titulo honoris. 2. As this is quaestio honoris, so the fountain of honour is sitting present in the judicatory, as not only Durie but all our privat historians have remarked. 3. Tho the action be called by Durie a reduction, yet it's very remarkable that it was truely quaestio possessionis, and both parties were in acquirenda, for, tho the question was anent the title and dignity of the lordship of Oliphant, yet none of the parties in the decision had assumed the title, but the heir-male is designed Patrick Oliphant, and the female by her husband Sir James Dowglas, so that the decision was of a plain point of law, by a soveraign-court, the fountain of honour, present in person.
Nor did this solemn decision terminat in clearing the point of right, but was further confirmed by the royal approbation, for immediatly upon the decision King Charles interposed and gave a new patent to the Lord Oliphant.
As procuratories of resignation of honours and dignities did not die with the granter, even before the late act of parliament, and what is now pled for Lady Mary Bruce was formerly and anciently our law, so much more of late, since the wisdom of this nation hath thought fit to perpetuat the import and effect of procuratories of resignation, which indeed seems sufficiently to take off all that can be objected for Sir Alexander Bruce.
And it's of no moment to pretend that a dignified person after resignation (specially if not accepted by the soveraign) continues to possess the dignity himself, and consequently his appearand heir may do the same, as Sir Alexander Bruce pretends, for this is a plain tho common mistake; and whatever may have occur'd in the contrair de facto, yet it's otherways in law, but more especially in this case, where the question is not with the dignified person but with his heir, and where a third party compears with a right in her hand to the contrair.
Nor is it to the purpose to plead that the late earl of Kincardine after this resignation might have voted in parliament himself, for, 1, after a title of honour is disponed and resigned, neither the resigner nor the party in whose favours the dignity is conveyed can claim the honour or priviledges belonging thereto, but the same remains with the soveraign, who may indeed confer the same on any of them he pleases; and because Sir Alexander Bruce is pleas'd to lay weight on this trifling objection, the honourable estates of parliament are intreated to consider that this answer is in the precise terms of the solemn decision. And 2, Lady Marie's case is yet stronger, for if the late earl of Kincardine, her brother, had after the resignation in her favours pretended to the priviledge of voting in parliament, he had this to support him: that his resignations was in favours of himself in the first place and reserved his liferent-right, and consequently he might have continued his priviledge of voting in parliament by the very tenor of that resignation, which intirely excluded his heirs-male, which indeed is alone sufficient to answer Sir Alexander's claim.
As what is pled for Lady Mary Bruce is agreeable to our ancient customs and practice in relation to titles of honour, so it is further confirmed from the very principles of the feudal law, where honours and dignities came to be very early considered, and their descent distinctly determined; and where-ever any feudal right or dignity was by the investiture provided to heirs male, all the feudal lawyers have agreed that that was never extended beyond the heir male of the vassal's own body, which Sir Alexander Bruce does not pretend to.
And therefore on the whole matter her majesties high commissioner and the honourable estates of parliament are humbly and earnestly intreated to consider that as what is now pled for Lady Mary Bruce is just and agreeable to all ancient and modern law, so her case in all respects is highly favourable, her claim being the express will of the defunct, and her right of resignation having been kept up by Sir Alexander and being yet in his hands, whereby the soveraign's determining in whose favours she would confer this title of honour was certainly stoped; and her majesty, by this resignation, had certainly that interest in the decision, that Lady Mary Bruce humbly begs her gracious majesty may be informed anent her claim before the posession be determined.†
[A1706/10/15]*[print] [email] [cite] [preceding] [following]
Ladie Mary Bruce against Sir Alexander Bruce of Broomhall
Mr Alexander MacLeod for Lady Mary resum'd the grounds of her petition, and added that as the creation of such dignities wes a fewdal right in the person of acquirers and therfor regularlie not to be derived to any other than the descendents of the first vassall, which Sir Alexander in the present case cannot pretend to be, so the dignitie of the earldom of Kincarden, having been resign'd by Lady Marie's father in favours of himself and his airs of tailzie, contain'd in the signature under the king's hand granted therof, which tho never fully exped throw the seals, yet did effectuallie inovat and alter the first gift in favours of the aire male. Secundo, the resignation of the last earl in Lady Mary's favours, tho it cannot give her that dignitie untill her matie shall think fit to conferre the same upon her, yet it wes sufficient to denude the resigner and his other airs of all pretence to that dignity, as wes most solemly decided on the 11 July 1633 in his maties K[ing] Charles I, his presence, who was then the fountain of honour in the case of the Lord Oliphant's resignation in favours of his heire male. And tertio, it's plain that dignities as they are not in commercio, so they require no service to transmit them, and therfor require the less solemnitie for denuding the dignified person, so that there can be no more requisit in this case than the disposition and resignation founded upon by Lady Marie and wherupon the ladie and her husband have intented a processe of declaration of her right, which is now depending befor the lords of counsell and session.
Sir Walter Pringle for Sir Alexander Bruce alleadged that the signature in favours of the heirs of taillzie did not alter bot rather confirm the destination and right of the heirs male, seeing the first heirs therin are the heirs male, bot, secundo, as to that signature, it wes a derelinquish'd paper and the titles pretended to be therby conferr'd wer actuallie bestow'd, particularlie the title of Forth bestow'd on the earl of Melford†. Tertio, the resignation design'd therafter by the petitioner's brother having never been made or exped, it could not denude that earl in prejudice of his heir male, which is indeed the point in question, and it's notour that earl did actually sit and vote in parliament after that procuratorie in favours of his sister. Quarto, the act of parliament continueing the validity of procuratories and precepts after the granter's death cannot concern dignities, that act bearing expressly to be for obviating the circle and expenses of the legal remedie, viz: adjudication, which was not imaginable in the case of dignities, which could not nor can be adjudged. And as to the decision alleadged on, it is rather a trysting than a legal decision, seeing both parties had new patents given them and cannot therfor be considered as a legal precedent for deciding after cases of the like nature.
MacLeod replyed there are severall peers whose rights to their dignities are founded on resignations made after the resigner's deceasse, which could not subsist in law unless the procuratories denuded the granters. And as for the decision, it is a plain legal determination of the right of the parties, and observed and transmitted from that time to us as the fairest precedent in any such case, and therfor of very just weight in all such cases that can occurre afterward.
Sir Francis Grant for Sir Alexander duplyed that as the declaration concerning this dignitie depends befor the lords of session, so there are sufficient grounds to anulle the pretended procuratorie, wherof he now insisted on this: that it wes a non habente potestatem, the granter being in so far as concerns that dignitie interdicted in favours of the soveraign that he could not denude himself without the soveraign's consent. Secundo, the soveraign, the other peers, the partie and the parliament haveing such interest in the convoyance of such a dignitie, unless it had been compleeted habili modo by the partie and the soveraign, it is impossible it can take any effect whatever, much less so denude the heire male as to turn him out of the possession of such a dignitie without a formal process for taking away his right. And, tertio, as to the decision adduced, the case does not quadrat, for by a contract with the father of the pursuer of that processe, the defender alleadged the honour was conveyed and the lords found the pursuer could not quarrell the father's deed, she being lyable to warand it as representing him on the passive titles, which otherwise they had never done, bot undoubtedlie had found the subject extra commercium, and reduced. And therfor this case, being of the highest import, oght not to be regulat by that decision, especiallie when it is alreadie depending befor the judge competent, and will undoubtedlie be determin'd there by the known and fixed principles of law.
Her maties high comissioner and the estates of parliament, haveing advised the debate, they admitte Sir Alexander Bruce to his seat and vote in parliament as earl of Kincarden, reserving Lady Mary's right and declaratour as accords.
Seafield, cancellar[ius], I.P.D. p[arliamenti]
[A1706/10/16]*[print] [email] [cite] [preceding] [following]
Unto his grace James, duke of Queensberry, her maties high commissioner, and the right honourable the estates of parliament, the petition of Ladie Marie Bruce and William Cochran, younger, of Ochiltrie.
Humbly sheweth,
That whereas the petitioners haveing applyed to your grace and the honourable estates in the moneth of October last upon our rights and grounds therein mentioned, whereupon we had raised ane declaratour befor the lords of session befor Sir Alexander Bruce of Broomhall should be admitted to the rank and dignity of the earle of Kincardine, the rights we mainly founded on were two procuratories of resignation of the title and dignity of the earle of Kincardine, granted by the last deceast Alexander, earle of Kincardine, in favors of himself and the heirs of his body, whilks failzeing, his nearest heirs whatsomever, and the other in favors of himself and after his decease to the said Lady Marie Bruce, his eldest sister german, and the heirs male or female procreat or to be procreat of her body successive, without division, whilks failzeing, to her sisters and their heirs in manner therein mentioned; which procuratories of resignation having been delivered by Sir John Cochran of Ochiltrie to the said Sir Alexander Bruce, upon his recept for redelivery thereof, upon demand, when the cause came to be heard and the recept forsaid produced by the petitioners and production craved of the saids procuratories, the same were accordingly produced by Sir Alexander and given in to the clerks and the petitioners. When the debate was ended, having taken up these procuratories as their own evidents from the clerk upon their recept to redeliver the same upon demand, and the clerk upon the urgent desire of the other party craving that these procuratories may be given back by the petitioners, we humbly conceive that these procuratories, being our evidents, we have just right and interest to retain the same, albeit we gave the said recept thereof for the clerk's exoneration, and it would create ane unnecessary trouble to the petitioners to be putt to the necessity of useing exhibition for our own proper evidents in case the same should be given up or fall into the hands of any persons not having right thereto. And seeing your grace and the honourable estates of parliament having advised the said debate in the said cause upon the [...]†day of October last did admitt Sir Alexander Bruce to his seat and vote in parliament, reserving the petitioners right and declaratour as accords, wee are yet the more concerned to preserve these evidents as being absolutly necessary in that proces, and we beg leave in our own defence to say that if these papers were returned to our competitor they might be by him cancelled or embazled, whereof we could hope for no redress, for the circumstances of his fortune are sufficiently known besides the benefite he has and does enjoy of a personal protection without being limited to any particular time.
May it therfore please your grace and the honourable estates of parliament, upon consideration of the premisses, to allow the petitioners to retain the saids procuratories of resignation, being our own evidents, and to appoint our recept thereof to be given up to us, and ordain our said declaratour to be discust befor the lords of session summarly without abideing the course of the roll.
William Cochran
†Edinburgh, 4 February 1707
Her maties high commissioner and the estates of parliament, having heard this petition, ordain the writs mentioned therein to be put in the clerk's hands, and that the earl of Kincarden and his procurators see and answer the petition against the first day on which the parliament shall think fit to proceed upon privat cases.
Seafield, cancellar[ius], I.P.D. p[arliamenti]
Edinburgh, 3 February† 1707
Her maties high commissioner and the estates, having considered this petition with the answers, remit the petitioners cause to be summarlie discussed before the lords of session, and ordain the writts in the clerk's hands to remain therin, reserving all defences against delivery to be determined by the lords as accords.
Seafield, cancellar[ius], I.P.D. p[arliamenti]
[A1706/10/17]*[print] [email] [cite] [preceding] [following]
The said lady and her husband, pretending right to the dignity and title of honour of Kincardin, they did raise declarator before the session thereanent, and did at the same time petition the parliament that the earl should not be admitted to his rank and dignity there till such time as the said declarator were brought to a close; and they being heard upon that petition, the desire thereof was refused, reserving their declarator before the session as accords.
But the earl, for clearing his defences, having produced two pretended procuratories of resignation of the said title and dignity which had been put in the earl's hands, upon certain considerations needless to be here taken notice of, the lady's son, after the matter before the parliament was over, did induce the clerk's servant to lend him up the earl's production foresaid upon receipt.
And now the lady and her husband do petition, first, that they may be allowed to retain in their hands the foresaid two procuratories, pretending that the earl having borrowed them from Sir John Cochran and granted a receipt and obligement for re-delivery thereof, therefore that by this receipt they will be found to belong to them. And in the next place, they take occasion to desire that the parliament will do them the favour to appoint their declarator foresaid before the session, to be there summarly discust.
As to the first of which desires, the earl is not straitned here to take notice how they pretend to impose upon the parliament by desiring to have two procuratories delivered up to them, whereas the earl's receipt is only for one.
It is sufficient to answer, primo, that the matter before the parliament being over, each party ought to have up their own respective productions, and their own petition does acknowledge these procuratories to be the earl's own production, and the clerk's possession was still the earl's possession, and Ochiltree, having given a receipt to the clerk obliging him to re-deliver them, does ipso facto own all this.
2. This receipt and obligement granted by Ochiltree to the clerk cannot be annulled or made ineffectual (as he desires), nor yet the earl summarly dispossest of his production without calling him in due course of law.
3. As the earl cannot be obliged to answer here summarly to an exhibition and delivery, so also it is noways proper to trouble the parliament with it.
For the earl's exceptions and defences against the exhibition do many of them consist in fact, which will require more time and terms for probation that it is possible the parliament can well spare, such as that the granter was not compos mentis, nor were the procuratories ever delivered evidents otherways than at most upon trust.
4. By several acts of parliament all civil actions are appointed to be first pursued before the judge ordinary and not before the parliament, act 27, parliament 5, James 3rd, and there is no special merit in this matter which should require overturning old acts of parliament or making of new ones.
And it is plain that the lady's desire summarly to dispossess the earl of his writs without process or citation, and to annul her son's receipt thereof, do in a word directly import they may be favoured with overturning the established acts of parliament about the order of administration of justice in the session.
As to the 2nd desire, it is answered, 1, that the same is as much beyond rule and precedent as the former, nor was it ever heard of that the parliament did recommend ordinary actions depending before the session to be there summarly discuss'd, except in most special cases where the process was first intented before the parliament, which is not pretended in this declarator, but, on the contrair, the samen is by a vote of parliament found to be depending before the session, and there reserved. And in so far as the reservation of parliament bears according to law, it is most irregular to desire that, contrair to law and practice, the parliament should now innovat that vote by appointing the samen to be discuss'd otherways than in due course of law.
2. As their petition does not so much as give the least insinuation of reason or specious pretence why this declarator should be summarly discussed, more than any other ordinary action, so also on the contrair this process is so far from being meritorious that it is plainly of its own nature both frivolous and odious for very obvious reasons.
As to the insinuation touching the earl's circumstances and his protection, it is somewhat unkindly (to say no worse of it) in the petitioners to mention this who know (as all the world does) that the earl hath lost a very plentiful estate by his friendship to their father and his family. And as to the protection, the insinuation is groundless, for the protection secures only against debts and not against exhibition of papers.
As to the suggestion that the earl may cancel or imbazle these papers, they have been now for many years in the earl's possession and are still in full integrity.
And here the earl begs leave to represent that though his tenderness to these his pretending competitors did restrain him from taking these advantages which lay open to him, upon a very unluckie production made of a vitiate paper in the beginning of this session of parliament, yet he hopes that these who take the assurance to produce such papers of their own will be looked upon as very unfit hands for the custody of other men's papers.
In respect whereof, both the desires of the petition ought to be refused.
Kincardin
[A1706/10/18]*[print] [email] [cite] [preceding] [following]
Anent the petition given in and presented unto his grace James, duke of Queensberry, her majesties high commissioner, and the right honorable the estates of parliament at the instance of Lady Mary Bruce, alias Cochran, and William Cochran, younger, of Ochiltree, her husband for his intrest, against Sir Alexander Bruce of Broomhall, now earle of Kincardine, shewing that etc. and therfore humbly craving etc., as the forsaid petition and desyre therof at lenth proports, with which petition ther was produced in presence of his grace her majesties high comissioner and the said estates of parliament ane recept granted by the said Sir Alexander Bruce of Broomhall, dated 27 April 1704, wherby he grants and acknowledges that he had got up and received into his hands from Sir John Cochran ane resignation made by the earle of Kincardine of his title of honour in favors of his sister, the petitioner, qhich resignation he obleidged him to redelyver upon demand to the said Sir John Cochran or to William Cochran of Ochiltrie, his eldest son, in manner mentioned in the said recept and obleisment, with ane instrument under the subscriptione of William Dalrymple, notar publict, dated 3 October 1706 years, bearing William Cochran, eldest laufull son to Mr William Cochran of Ochiltrie, younger, as procurator for and in name and behalf of his said father and Lady Mary Cochran, his mother, to have past to the personall presence of the said Sir Alexander Bruce within his lodgeing in Cannogate, and to have requyred from the said Sir Alexander the forsaid resignation made by the earle of Kincairdine of his title of honour in favors of his said sister in the terms of his recept forsaid, at lenth ingrost in the said instruction, as the said instruction and protest taken therupon of the date forsaid bears. And in lyke manner produced ane signature superscribed by his late majesty, King Charles the 2nd, dated the 3 June 1663, nameing, designing and appoynting Alexander, then earle of Kincardine, his airs male and of taillie, named or to be named by him, earles of Forth, viscount Bruce, lord [...] and Torry, and that in place of the title of earle of Kincardine and lord Bruce of Torry; with power to him and his forsaids to take place and precedency and to enjoy all dignities, priviledges, prerogatives and immunities according to the date and tenor of ane former patent granted by his late matie, King Charles the first to the deceist Edward, earle of Kincardine, of date the 20 December 1647, which signature is docqueted by the earle of Lauderdale, then secretary of state, as the samen signature more fully proports. Whilk petition abovewritten and wryts forsaid therwith produced, being upon the 3rd October 1706 years read in presence of and considered by his grace her maties high commissioner and the estates of parliament, they continowed the consideration of the said petition untill the parties concerned be heard befor them on the grounds therin represented the then nixt sederunt of parliament. Accordingly the parties and ther procurators aftermentioned being upon the 10 day of the said month of October 1706 years called and heard in parliament, at qhich tyme the said Lady Mary Bruce, alias Cochran, and William Cochran, her husband for his interest, compearing by Mr Alexander McLeod, advocat, their procurator, who for them resumed the grounds of the petition abovewritten and added etc. (Here take in the first paragraph of the minutes, then say) And the said Sir Alexander Bruce of Broomhall, now earl of Kincardine, compearing by Sir Walter Pringle and Sir Francis Grant, advocates, his procurators, who for him lykewyse produced in presence of her maties high comissioner and estates of parliament the wryts after mentioned, viz: ane diploma or patent of honour under the great seall creating the now deceast Edward Bruce of Carnock and his heirs male earles of Kincardin, lords Bruce and Torrie etc., dated at Carisbrook, 26 December 1647, with ane act of privy councill under the subscriptione of Sir Archibald Prymrose, then clerk of councill, taken upon production of the said diploma or patent of honour in favors of the said Edward Bruce, dated the 7 July 1648. Item, the foresaid procuratory of resignation under the subscriptione of Alexander, late earle of Kincardine, dated at Culros, 12 September 1702, containing a power to resigne the title of honour and dignity of earle of Kincardine, lord Bruce and Torrie etc., with all liberties and priviledges, immunities and precedencies dew and competent to the said deceist Edward, earle of Kincardine by the forsaid patent and to the said Alexander, late earl of Kincardine as nearest air male to him, with all right, title and interest jure a sanguinis or otherways competent or that might be competent to him, his predecessors or successors of and concerning the same title of honour and dignity in the hands of her present matie Queen Ann, in favors and for a new grant and patent therof to be made and granted by her matie to the said Alexander, late earle of Kincardine, granter of the forsaid procuratory, and the airs male to be laufully procreat of his body, which failzeing, to the eldest daughter and heir female to be procreat of his body successive without division, and the heirs male of her body, which failzeing, to the said Alexander, late earle of Kincardine, his nearest airs qhatsomever, in manner more fully mentioned in the said procuratory. Item, another procuratory of resignatione under the subscriptione of the said Alexander, late e[arl] of Kincardine, touching the pen led by the notar after exprest, dated 15 June 1703, containing lykewayes a power of resigning the forsaid title, honour and dignity of earle of Kincardine, lord Bruce and Torie in her presnet maties hands in favors and for a new gift and patent of the same, to be granted in due forme to him and after his deceise (under the provisions mentioned in the said procuratorie) to the said Lady Mary Bruce, his eldest sister german, and the heirs male and female procreat or to be procreat of her body successive without division, which failzeing, to the other persons specifit in the said procuratory, which is subscribit by the said Alexander, late e[arl] of Kincardine, touching the pen led by William Hamilton and David Craigie, notars publict, who doe also subscryve the samen with the said earle, as the saids tuo procuratories of resignation of the dates respective abovewrittten in themselves more fully proport. After production of qhich wryts, the said Sir Walter Pringle and Sir Francis Grant, advocats, as procurators for the said Sir Alexander Bruce of Broomhall, alledged that the signature in favors of the heirs of taillie etc. (Here to insert the rest of the minutes to the interloqutor, then say) The qhilk debate abovewritten and wryts produced by either parties procurators in manor forsaid, being upon the said 10 October 1706 years read, heard, sein and considered by her maties high comissioner and the estates of parliament, and they being therwith well and ripely advysed, they by ther interloqutor therupon the said day admitted the said Sir Alexander Bruce of Broomhall to his seat and vote in parliament as earle of Kincardine, reserving Lady Marie's right and declarator as accords. Therafter the said Lady Mary Bruce and William Cochran, younger, of Ochiltrie, her husband, gave in and presented to his grace her maties high comissioner and the estates of parliament ane other petitione showing that whereas the petitioners etc. and therfore humbly craving etc., as the said petition and desyre therof at lenth bearis, whilk petitione forsaid, being upon the 4 February 1707 years read in presence of and considered by his grace her maties high comissioner and the estates of parliament, they, by ther delyverance therupon the said day, ordained the wryts mentioned in the said petition to be put in the clerk's hands, and that the earle of Kincardine and his procurators see and ansuer the petition against the first day on qhich the parliament shall think fit to proceed upon private causes. Accordingly the procurators of the said earle of Kincardine, having sein the said petitione, they returned the ansuers therto following, viz: the said Lady Mary Cochran and her husband pretending right to the dignity etc. (Here take in the answers etc. to the close). Whilk petition and answers thereto abovewritten, being upon the day and date of thir presents read, heard, sein and considered by his grace her maties high comissioner and the estates of parliament, and they therwith being well and ripely advysed, his grace her maties high comissioner and the saids estates of paliament have remitted and hereby remit the petitioners cause to be summarly discussed befor the lords of session, and ordained and hereby ordain the wryts in the clerk's hands to remain therin, reserving all defenses against delyvery to be determined by the saids lords of session as accords. Ext.
†March 10 1707
The haill writs produced in this matter are given back to Mr John McKenzie, clerk, with the remit of parliament, because they are ordered by the interloqutor to remain in his hands.