[1703/5/166]*[print] [email] [cite] [preceding] [following]
Prayers said. The rolls called.
The petition by Sir Alexander Dalmahoy of that ilk for a relief of his father's cautionary for Henry Leggat, late collector of the cess in the shire of Mid-Lothian, who at the desire of the commissioners of supply in the shire for the time had furnished certain quantities of corn, straw and hay to the forces in 1691, read again and, it being moved and agreed to that no singular successor in lands within the shire since the said time could be liable to any such relief, the vote was asked grant the desire of the petition with that quality or not, and carried in the affirmative, and accordingly the same was granted in manner following.
[1703/5/167]*[print] [email] [cite] [preceding] [following]
Her majesty's high commissioner and the estates of parliament, having heard the petition of Sir Alexander Dalmahoy of that ilk humbly showing to them that the commissioners of supply of the shire of Edinburgh, having appointed Henry Leggat, their collector, to furnish the forces with hay, corn and straw at the rates appointed by the act of the lords of his majesty's privy council, and engaged that he should be no loser by buying at the current price, though the same should exceed the rates appointed by the privy council, by virtue whereof he began to furnish at Candlemas [2 February] 1691, and the current price at the time, having been far above the price appointed by the privy council, he did represent the same in April and thereafter to the commissioners of supply, who desired him to continue to furnish the forces as formerly and renewed their engagement that he should be no loser thereby, upon the faith whereof he continued to furnish accordingly. By this and other losses sustained through the public Henry Leggat turned bankrupt and Sir John Dalmahoy, the petitioner's father, his cautioner, was distressed for cess and other arrears due by him and upon ultimate diligence was necessitated to pay £10,000 Scots; and the petitioner's father, having applied to the commissioners of supply foresaid for reimbursing Henry Leggat of the damages he had sustained by furnishing the forces in manner foresaid, and they having appointed a committee to consider his accounts and to report, after full consideration thereof and probation taken anent the difference of the current rates and those appointed by the privy council, upon report they found that the said Harry Leggat was no less loser during his service as commissar than the £1,700 Scots, but scrupled to lay on the same upon the shire unless the authority of parliament is interposed thereto, as was instructed by the sederunt, probation, report and acts of the said commissioners of supply produced. And seeing that the foresaid sum is but a small part of the loss the petitioner's father and he has sustained and a true and real debt upon the shire, and the only small fund of the petitioner's relief and in no way proportional to what his father paid, as said is, he therefore, humbly begged that his grace and the honourable estates of parliament would be pleased to take the circumstances and the great loss the petitioner's father and he have sustained to their consideration and to authorise the commissioners of supply to lay on the foresaid sum of £1,700 Scots upon the respective heritors, conforming to the valuation, and to allow the petitioner such diligence for bringing in thereof as is granted for supply and other public burdens, as the said petition bears. For instructing whereof, the said Sir Alexander Dalmahoy, the petitioner, produced in the presence of her majesty's said commissioner and the estates of parliament the minutes of sederunt of the said commissioners of supply, the probation taken before their committee and their report, with the acts above-mentioned relating to the matter above-represented, as the same bears. Which petition, with the said instructions thereof produced, her majesty's high commissioner and the said estates of parliament, having this day considered, they authorised and do hereby authorise the commissioners of supply of the shire of Edinburgh to lay on the above sum of £1,700 upon the respective heritors of the shire, conforming to their valuation, and have allowed and hereby allow such diligence for bringing in thereof as is granted for supply and other public burdens, declaring always, likewise it is by these words declared, that this act shall not extend to those heritors of the shire who are singular successors in their lands since the year 1691. Extract.
[1703/5/168]*[print] [email] [cite] [preceding] [following]
Petition by Sir George Home of Kello and partners, relating to the stay of execution granted by deliverance upon a petition in favour of [John Lindsay], earl of Crawford, read, and the vote asked, adhere to the said deliverance, yes or no, carried adhere, as is fully contained in the earl's act dated and recorded the 6th instant.
The petition by the heritors of the shires of Inverness and Ross, with the answers for Duncan Forbes of Culloden, read, relating to an act of parliament obtained by the said Duncan in 1690 taxing the yearly excise of aquavitae brewed in his lands of Ferintosh to 400 merks yearly; and, after debate, the vote being stated, rescind the act in so far as concerns the excise or not, carried in the negative, but the effect of the act was restricted with consent to the growth of the said lands only in manner at length following:
[1703/5/169]*[print] [email] [cite] [preceding] [following]
Her majesty's high commissioner and the estates of parliament, having heard the petition of John [MacKenzie], master of Tarbat, Roderick MacKenzie of Applecross and Hugh Munro of Teaninich, for themselves and the other heritors of Inverness and Ross shires, humbly showing to them that where Duncan Forbes of Culloden, upon a petition to the parliament in 1690 representing that his lands of Ferintosh had been about that time laid waste, did procure an act of parliament farming to him the excise of the said lands for the sum of 400 merks yearly, and reducing the valuation thereof from £2,000 to £1,200 Scots, and a great part of this abatement laid upon the shire of Inverness and added to the quota of their cess, the petitioners did not there quarrel the said representation, albeit it was sufficiently known that no part of these lands was laid waste for a year, and the greatest abatement given to the tenants did not exceed a half year's rent. But certainly it cannot but be noticed that, though the loss had been far greater, it is long since abundantly repaid, and it can never be thought that the parliament intended the foresaid grant to be perpetual, it being so manifestly prejudicial both to all the country about and more especially to her majesty's interest, in as much as first under the colour of the said 400 merks yearly, Culloden, upon a very reasonable computation, may have brewed within these lands 2,000 bolls of malt for aquavitae yearly, which, at two merks per boll, as others do pay, amounts to 4,000 merks yearly, whereas at Culloden's rate of 400 merks he does not really pay three pence per boll, so that, in a manner, he brews excise free and thereby undersells and ruins his neighbours as effectually as if he had a monopoly, which all laws condemn. And further her majesty is obviously prejudiced in 3,600 merks yearly, besides that Culloden may augment his brewing and make the said prejudice both to queen and country far greater. And as to the valuation of the said lands at £2,000 Scots, it is really as easy as any valuation of lands in either of these shires though it was restricted to £1,200 without any probation, which ought the rather to be redressed because the act of parliament of 1670 for revaluation of the shire of Nairn does plainly afford the proper remedy by the commissioners of the shire. Besides that, the shire of Inverness ought not to be burdened with the foresaid abatement. Therefore, craving his grace and their lordships, in consideration of the circumstances, to declare the foresaid act in Culloden's favour expired and extinct as to the foresaid tack of his excise, and to ordain the foresaid undervaluation to be rectified, and the just proportions of the shires to be adjusted by such commissioners as his grace and their lordships should think fit for that effect, as the said petition bears.
Upon reading whereof, on 24 June last, his grace and the estates, having ordained the above Duncan Forbes to answer it the second day wherein the parliament should sit the then next week, the said Duncan, conforming to the foresaid interlocutor, gave in the following answers. Mentioning that his lands of Ferintosh, being laid waste in October 1689 by a body of seven or eight hundred men sent there by Buchan and Cannon, and he and his tenants being prejudiced thereby in upwards of £36,000 Scots, as was made apparent to the parliament by whose order full probation thereupon was taken, the estates did by their act in July 1690 ease him of an exorbitant valuation, which he had long complained of, upon condition he should pay cess from that date; and also for encouragement to his tenants to come back and brew and pay excise from that Lammas [1 August] forward, the king and parliament did grant a perpetual tack of their excise for the payment of 400 merks yearly, at which rate they had tacks formerly between 1670 and 1680, year of God, as was proven in the presence of a committee of parliament before the act passed, though it is confessed that immediately before the revolution they were more rigorously exacted upon this justice done to Culloden in his valuation. And this small ease to his tenants in their excise is all the reparation he or they have of their £36,000 loss for their affection to the government, yet it is complained upon by the master of Tarbat, on behalf of the shires of Inverness and Ross, alleging first that Culloden's valuation wrongs the shire of Inverness etc. Secondly, that his tack of excise wrongs the queen's revenue in 3,600 merks per annum. Thirdly, that his tack of excise wrongs his neighbours in so far as he can undersell them and monopolize the brewing trade etc. Fourthly, that all his loss was not above half a year's rent etc. Fifthly, although it were as much as he called it, yet he is paid because he had the benefit of 4,000 merks of excise yearly for twelve years bypast and, therefore, concludes that since his losses are repaired, his said tack of excise should be declared expired and extinct: to the first, anent the shire of Inverness its being wronged by Culloden's valuation, it is answered that it is the law of terce to the master of Tarbat and the shire of Ross, or any man in it who has no estate in the shire of Inverness, to inquire in that. If the commissioners of Inverness or Nairn shires say nothing upon the head, it is out of the road of any else whatsoever to quarrel it. Secondly, [Ludovic Grant], laird of Grant in 1690 did represent the shire of Inverness in parliament, and gave consent and approbation to Culloden's valuation in the terms of his act, and was witness to the unanimous satisfaction of all the commissioners of that shire in accepting of that small burden proposed by the act. But thirdly, if what is said were not sufficient, Culloden can say that none of the shire of Inverness bears a farthing of that burden but himself upon his other lands in the shire, referring the verity of what is said to the laird of Grant's own testimony. As to the second objection, that Culloden's tack of excise wrongs the queen's revenue 3,600 merks per annum etc., it is answered first that this is founded upon a false ground as if Culloden's tenants brewed 2,000 bolls yearly (which is very far from the truth) and reckoning all these bolls at two merks the boll, which is the rigour of the act of parliament, whereas it is known that, except it be in Edinburgh and some of the principal burghs, there is no such thing exacted as the rigour of the law. Indeed, in many country places the excise will not reach half merk upon the boll or else there would be no brewing. But letting this allegation pass, it is answered secondly, that the whole excise of the kingdom is and has been farmed above what it used to be, ever since the granting of Culloden's act, and that without diminution of one six pence on account of his said act, so that it is impossible the queen can be wronged in her revenue, unless the tacksmen and their cautioners break, which would also be nothing to the purpose in hand, and therefore this objection utterly falls. But as to the third anent Culloden's underselling etc. and monopolizing the trade from his neighbours by means of the vast benefit of this tack, it is answered that Culloden's tenants never undersold their neighbours (except in the cases after-mentioned) nor can they undersell them upon account of excise. But it is both possible and probable that in the two or three dear years, when he took but eight pounds for his boll and all the rest about him took the highest prices, such an occasion might occasion his tenants to undersell, but never upon account of excise which has been as cheap with them at other times as now notwithstanding of all the noise is made of it. And secondly, as to monopolizing it is no great symptom of a monopoly that at this hour his year's rent should lie upon hand without any to buy. But to answer this part of the objection distinctly, let the supposition be as the complaint would make it and that the lands of Ferintosh were entirely exempted from excise as well as Newmills or Fort William, or that they were liable in a great excise and that the king forgave it, either of which the king or queen can certainly do, nor is it the business of any living to quarrel it unless it can be said that the king or queen and estates have also given them a power to carry it from other places and brew and vend that too, as well as their own, excise free to the prejudice of their neighbours, which is the thing insinuated and most groundlessly, because Culloden denies that ever he took, or that his act of parliament gave him or his any such latitude but, on the contrary, understands the meaning of the act to be only for the excise of what grows upon his own lands (and less the parliament could not mean) to which he is and was always satisfied to be restricted, with certification that whatever grain shall be carried from any place into his lands (except it be to eat or sow) shall be liable to excise in addition to the tack duty, which secures to the world's end against all monopolies, or ever-increasing the trade by him or his to anybody's prejudice. And as to the fourth objection, that Culloden's loss in giving allowance to his tenants was not above half a year's rent, it is ill alleged, but esto he had allowed them nothing does that say that they lost nothing, and if they were losers to so great a value whatever ease there is in the excise they have it (as in reason they ought) and not Culloden, for there is none alive can say that ever he had a single half penny by it, which also answers the fifth objection, namely that though Culloden had as much loss as he alleges, yet he has had 4,000 merks per annum of benefit by the excise tack for thirteen years, which may pay all these losses and, therefore, his losses being paid his act of parliament ought to expire. It is answered the allegation is but a jest, because, as is already said, Culloden never had nor can have a half penny by that excise, the principal good of it being that it keeps his tenants free from the trouble and exactions of subtacksmen by whom they were formerly oppressed. And since this bit of ease to the poor people is all that he or they have to repair the £36,000 Scots of damages sustained for his affection and theirs to the government, it was hoped his grace and the estates of parliament would not deprive them of it, but would rather lay aside this invidious complaint and ratify what has been given to Culloden and his tenants upon so good grounds, as the said answers also bear.
And the petition above-written, being again upon the day and date of this act read together with the above-written answers thereto, in the presence of her majesty's high commissioner and the said estates of parliament, and they having fully considered the same, they have refused and hereby refuse to rescind the foresaid act of parliament, but have restricted and hereby restrict the privilege thereby granted to the growth of Culloden's own lands of Ferintosh only so as all other grains to be imported to the said lands to be brewed shall be liable to survey and excise as in any other lands in that country. Extract.
[1703/5/170]*[print] [email] [cite] [preceding] [following]
Petition by Sir William Douglas anent his arrears and some reparation for the loss of his estate in France, read and the petitioner thereupon recommended to the lords commissioners of the treasury for his arrears, and to the queen's majesty for the said reparation in manner fully after-mentioned.
Her majesty's high commissioner and the estates of parliament, having heard the petition of Sir William Douglas humbly showing to them that the petitioner, having had his regiment disbanded at the late peace, and great sums of both subsistence and arrears owing him at that time, he was necessitated to contract debts upon the credit of the public which he has since partly paid out of his own, and is likely to be distressed for the remainder. He humbly begged leave to represent that during the late war he was forfeited of his whole estate in France, and never had any consideration in lieu thereof, and that in June 1702 he was to have been paid of near the half of the said estate which he sold when last in France, but the declaration of this present war has frustrated him of it, which, having been represented to the queen her majesty, has been graciously pleased to show a good intention to do for him. Therefore, humbly craving his grace and the honourable estates to consider the petitioner's singular case in laying down a way that his arrears of £2,590 sterling (as it appears by the stated accounts of the lords of her majesty's treasury) may be paid him, and that he may, in consideration of the loss of his estate and as a just premium due to his long faithful services, have such a recommendation from his grace and the honourable estates to her majesty that something may be done to keep him and his family from starving, having nothing left him but their equity and justice to depend upon, as the said petition bears. Which her majesty's high commissioner and the said estates, having this day fully considered, they have recommended and do, by these words, recommend the petitioner to the lords commissioners of her majesty's treasury for the payment of his above arrears. As also, they have recommended and hereby recommend him to her majesty's grace and favour for some reparation for the loss of his estate.
[1703/5/171]*[print] [email] [cite] [preceding] [following]
The draft of the act for a manufactory of china, porcelain and earthenware in favour of William Montgomery and George Lind, read for the second time, put to the vote and approved.
[1703/5/172]*[print] [email] [cite] [preceding] [following]
The action at the instance of [John Kerr], laird of Morriston against Sir James Cockburn [of that ilk], to declare the trust of certain bonds in the defender's person for the behoof of the pursuer's father, called, and the advocates for either party heard, the cause was remitted in unaltered to be discussed summarily before the lords of session, as it particularly follows in the remit.
Anent the petition given in and presented in the month of July 1690 to his majesty's then commissioner and the right honourable the estates of parliament by John Kerr of Morriston, humbly showing that where Sir James Cockburn of that ilk was debtor to the deceased Mr Mark Kerr of Morriston in more than the sum of 40,000 merks principal and that for above twenty years, for which he paid interest all that time, and at length the debt was brought to 7,000 or 8,000 merks, for which he also paid annualrent until within twelve months before the giving in of the said petition, and never did move any question thereupon until Candlemas [2 February] then last, that his condition became encumbered and he plainly failed, as was known to all. At which time, when the petitioner came to crave him or to get security from him for the said sum of 7,000 or 8,000 merks he, instead of granting of it, pretended that there was due to him (as assignee) by the said deceased Morriston as debtor, the sum of 14,000 merks or thereby of principal with fifteen or sixteen years' annualrent, which he pretended that the petitioner, as heir to his father should pay to him, which demand was a great surprise, not only to the petitioner, but to all that ever heard or knew of the dealings that had been between the said deceased Mr Mark Kerr and the said Sir James, who justly thought that there could not be but a great mystery in it and that in effect the said Sir James had either taken assignations to the said bonds in place of discharges, the same having been truly paid by Morriston's money, or had filled up assignations taken blank in the name to Morriston's behoof now with his own name, there having been certainly a most exuberant trust and great intimacy between them. And seeing that a fraud and circumvention of this nature is hardly discoverable by ordinary methods but does indeed deserve a parliamentary cognition and, therefore, humbly craving his grace and their lordships in consideration of the circumstances to assume this affair to their own cognition and to refer the trial thereof to the commission for fines and forfeitures, with power to them to cite parties and witnesses and to examine and judge upon the whole matter, and to report to the next session of that parliament for the better discovery of so presumable a fraud, as the said petition bears.
Which, being upon 19 July 1690 considered by their majesties' high commissioner and the said estates, they remitted the trial thereof to the commission appointed for fines and forfeitures, with power to them to cite parties and witnesses and to examine and judge upon the whole matter, and to report the same to the next session of that or any ensuing parliament. To which commission of parliament the said John Kerr of Morriston gave in a petition showing that where there being a great intimacy and trust between the deceased Mr Mark Kerr of Morriston, the petitioner's father, and Sir James Cockburn of that ilk, particularly as to the contracting and discharging of debts, by the issue whereof Sir James was debtor to the petitioner's father in no less than the sum of 33,000 merks, for which Sir James had not only paid annualrent for many years then bygone, but by payments from time to time, partly to the petitioner's father, partly to his eldest brother and partly to himself, diminished the principal sum to a small remains of 8,000 or 9,000 merks, in all which space Sir James never made the least mention of any debt due by the petitioner, his father or brother to him until of late that Sir James his condition came to be encumbered, and that the petitioner thereupon applied to him either for payment or better security of the sums he owes him. At which time and not before that he was pleased to say that the petitioner was debtor to him by bonds granted by his father and assigned to him for about 14,000 merks principal and sixteen years' annualrent, which being a great surprise and certainly a great abuse, the petitioner for preventing the transferring of the bonds or arrestments of his creditors thought fit to raise declarator for discovering the abuse and defeating so evil a contrivance. But the affair appearing to be more dark and mysterious, by reason of the foresaid exuberant trust than can well be discovered by the ordinary courts and methods of law, the petitioner applied to their majesties and estates of parliament as in a matter deserving a parliamentary cognition and obtained it to be referred to the aforesaid commission for to try and report.
Whereupon he then represented to the said commission his complaint and reasons thereof in manner following. And the thing that the petitioner complained of was that there having been several bonds, as one of 5,000 merks principal to Alexander Bothwell, younger of Glencross, another of 3,000 merks to Walter Riddell, another of 2,000 merks to Mr James Aikenhead, another of 3,000 merks to [the laird of] Linplum, with one or two more in all, which bonds the petitioner's father and Mr Alexander Spottiswood are bound, either as co-principals or as principal and cautioner, and which bonds Sir James has been either obliged to pay for the petitioner's father or has actually paid them with his father's money. Yet, having taken blank assignations first to several of them for the petitioner's father's use and kept those assignations by him undelivered, he had then at length filled up his name or the name of some others to his behoof in those assignations and then owned them as bonds due to himself by virtue of the said assignations, and that most wrongfully for the reasons following. First, because to give a true account of the said affair appears to be the truest method for discovery of the abuse that certainly lies at the bottom, but so it is that the true scheme of it appears to be thus, namely that the petitioner's father was engaged with and for the deceased Alexander Spottiswood to one Stevenson for the sum of 27,000 merks which afterwards fell to and was divided amongst four of his daughters, and for the petitioner's father's relief he got a disposition and infeftment from Spottiswood of his lands of Crumstane. And, in the meantime, the daughters' and their husbands' craving the monies, the petitioner's father was necessitated to pay them and for to raise monies he and Spottiswood did again give the foresaid bonds, which were then in controversy between Sir James and the petitioner, and as the petitioner's father did therewith pay the Stevensons, so he took blank assignations to three of their parts, and the half of the fourth part. Thereafter Sir James designed the purchasing of the lands of Crumstane and the petitioner's father, having an infeftment upon it for 33,000 merks besides the foresaid infeftment for his relief, Sir James became debtor to the petitioner's father for the 33,000 merks, and took the petitioner's father's right upon the lands. As also, his father made over to the said Sir James his infeftment of relief for the 27,000 merks and then filled up Sir James his name in the blank assignations, that he had taken of these parts of it that he had paid to the Stevensons. Whereupon Sir James granted the petitioner's father a backbond which was produced to the commission wherein he declares that he was to make no use of these assignations against the petitioner's father, but only to affect the lands of Crumstane, and further obliges him to relieve the petitioner's father of that half of the fourth part of the Stevensons money that was then unpaid. But, that Sir James might not have the petitioner's father's infeftment of relief with those blank assignations for nothing, Sir James was to pay and retire the petitioner's father's bond above-mentioned which he had granted for to raise money for to pay the Stevensons in manner above declared, but whether Sir James became obliged in writ to do this, or that it was an exuberant trust left upon Sir James without any formal engagement, is the point still in the dark. Only that thus it truly was appears by two letters written and subscribed by the petitioner's father's own hand two months before his death to [Alexander Swinton], lord Mersington about this affair, wherein he plainly shows what bonds Sir James was to pay and that he had got the aforesaid assignations for the doing of it. Which letters, being the letters of a person long since deceased when the matter was recent and no controversy raised about it, neither then nor for years thereafter, are indeed to be received as probative documents. But secondly, to evince that these bonds were to be paid by Sir James and that he was only entrusted to retire them in manner foresaid, does further appear by this argument that for some of the bonds, namely Glencross's bond of 5,000 merks, he takes a discharge when for others of the same nature he takes blank assignations, which plainly infers the same trust as to the whole, for as it cannot be imagined how Sir James came to pay a bond of 5,000 merks due by the petitioner's father and Spottiswood to Glencross, and only take a discharge of it, unless he had been a mere trustee for the petitioner's father in manner above-represented. So it is as evident that the other bonds to which he has assignations, being in the same case, these blank assignations were taken in trust in the same manner with the foresaid discharge. Thirdly, that Sir James had recovered these bonds and assignations merely in trust, as said is, appeared by this obvious argument of Sir James's taciturnity, namely is it to be imagined that Sir James would be constantly paying to the petitioner and his deceased brother and father for the space of sixteen years and more, sometimes the annualrents, sometimes parts of the said principal sum of 33,000 merks, until then that he had brought it down to 8,000 or 9,000, and in all that time never offer either to secure these bonds that now he pretends right to, or so much as to crave the ordinary interest thereof. But the truth is Sir James knew and still knows that he was but a trustee for the petitioner's father and it is more than probable that if his late straits had not put him to new expedients, he had never disowned this trust. And fourthly, to make out this trust yet more evidently it was offered to be proven by writers and witnesses concerned in these transactions, and men above excepted, that this affair was carried and managed in manner above-related, and that Sir James as to these bonds was only the petitioner's father's trustee and before all things Sir James's oath of calumny was required. And seeing that by the aforesaid narrative and reasons it may be easily perceived that there is a mystery and circumvention in the said matter that deserves the parliament's reference, and also their determination after the said commission should have fully tried and examined the case in all its circumstances, and that it were a grievous hardship if the petitioner's estate should come to be burdened with upwards of 28,000 merks of a latent debt never before heard of, and whereof not one farthing is due, therefore, humbly craving the aforesaid commission appointed for fines and forfeitures to grant warrant to macers or messengers for summoning the said Sir James Cockburn and also Henry [Sinclair], lord Sinclair, Mark and Elizabeth Kerr, brother and sister to the petitioner, Mr Alexander Swinton of Mersington, one of the senators of the college of justice, Sir William Paterson of Granton and Mr James Dallas of St Martin, younger, his trustees and arresters, to compear before the said commission at a certain short day, and failing thereof the next lawful day of their meeting thereafter, to answer in the business peremptorily in respect they are to get full copies and to bring with them the foresaid bonds and assignations, and to hear and see the circumstances verified and proven, and being so verified and proven to hear and see it found and declared by decreet of their majesties and estates of parliament upon the trial and report of the aforesaid commission to be made in this matter, that the said bonds were truly retired by the said Sir James Cockburn as trustee for the petitioner's father and to his behoof, and that Sir James has nothing to pretend against the petitioner's or his father's estate by virtue of the said bonds or assignations that he has thereto and for which he was long since satisfied by the petitioner's father in manner above-narrated, and that, therefore, the said bonds and assignations are void and null and of no force or effect, and to cite witnesses and for cost, harm and damage, as the said petition fully bears.
Which being, upon the last day of July 1690 read before the said commission appointed for fines and forfeitures, and they having considered the same, the aforesaid commission did grant warrant to macers or messengers to cite the above-designed Sir James Cockburn and his above-designed trustees and arresters to appear before the said commission, on a citation of fifteen days, to answer to the said petition and also to cite witnesses, with certification etc., reserving to Sir James Cockburn at the diet of appearance to be heard anent the competency of the cause before the said commission, as an act of the foresaid commission of the date above-mentioned, extant in process bears. Conforming whereunto, and by virtue whereof, George Gardiner, messenger, did upon 4 August 1690 lawfully cite the said Sir James Cockburn personally apprehended and Donald Cameron, messenger, did on the 8th, 9th and 11th days of August 1690 lawfully cite the forenamed Mark Kerr, Sir Alexander Swinton, Mr James Dallas and Elizabeth Kerr, all also personally apprehended, and the said Henry, lord Sinclair and Sir William Paterson by leaving duplicates and copies at their dwelling houses, to compear before the said commission in manner, to the effect and for the causes mentioned in the said act and executions thereof. Thereafter, upon 29 September 1690 the foresaid claim and act being called before the said commission of parliament, the said pursuer then compeared by Sir James Stewart [of Goodtrees] (now her majesty's advocate), his procurator, who for him produced, in the presence of the said commission, the two missive letters above-mentioned, written and subscribed by the said Mr Mark Kerr of Morriston, and directed to Mr Alexander Swinton of Mersington, one dated 11 January 1675, and the other dated 22 January, together with a bond of relief and discharge or backbond as is above-mentioned, granted by Sir James Cockburn to the said deceased Mr Mark Kerr of Morriston of the date 2 April 1673, whereby he obliged him that he should use no execution, personal nor real, against the said Mr Mark and his heirs and executors upon the three bonds which are therein narrated: to wit a bond granted by the said Mr Alexander Spottiswood and him the said Mr Mark to Margaret Stevenson, daughter to the late James Stevenson, merchant burgess of Edinburgh, for the principal sum of 7,551 merks Scots money, dated 29 January 1666; and upon another bond of the same date, granted by the said Mr Alexander Spottiswood and Mr Mark, to Gilbert Fyfe, merchant burgess of Edinburgh, and Susanna Stevenson, his spouse, for the principal sum of 9,528 merks money foresaid, and upon another bond of the foresaid date, granted by them to Mr James Ross, writer in Edinburgh, for the principal sum of 5,750 merks, to which three bonds the said Sir James were assigned, in manner mentioned in the said bond of relief or backbond, whereby he also exonerated the said Mr Mark of the whole execution and effect of the said bonds, so far as they might operate against him and his foresaids, reserving the entire effect thereof and sums therein contained against the said Mr Alexander Spottiswood, by which bond of relief or backbond the said Sir James is likewise obliged that if the said Mr Mark should be distressed at the instance of the said Mr James Ross upon another bond therein deduced granted to him upon the said 29 January 1666 by the said Mr Alexander Spottiswood and him the said Mr Mark, for the said principal sum of 5,750 merks, or at the instance of any of the said Sir James's cedents for any of the annualrents of the principal sums above-mentioned, to which he was assigned, preceding his assignations thereto, in that case to warrant, free, relieve and disburden the said Mr Mark and his foresaids from all payment of the same, and of all cost, harm and damage they should incur through this, providing that upon distress he should make timeous intimation thereof to the said Sir James; and also produced the foresaid act of the commission or libel and executions thereof above-written and craved that his libel might be read, which was done accordingly.
And the said Sir James Cockburn, compearing by Sir Patrick Home and Mr James Leslie, advocates and his procurators, they for him presented a petition which was read craving that Morriston might be ordained to deliver back to Sir James several assignations which he and Andrew Hogg, his agent, borrowed from Sir James, and which papers have relation to the present process, and that diligence might be granted to Sir James for citing such of his creditors to whom he has given right to the assignations to Morriston's bonds now quarrelled, without the inspection of which Sir James's lawyers can give no advice in the matter, and that the commission would be pleased to grant a protection to Sir James to the end he might safely come and attend the diets of this process especially seeing the complainer craves Sir James's oath of calumny in his libel. Whereunto it was answered by the said Sir James (then James) Stewart, advocate and procurator foresaid for the laird of Morriston, that the papers in Morriston's receipt belonging to Sir James had no contingency with the libel and opposed the same as to the particular writs therein enumerated, and the creditors to whom Sir James has given right were cited and full copies of the libel given, and they were content that protection should be given to Sir James to testify, to which it was replied by the said Sir Patrick Home and Mr James Leslie that some of the papers contained in the said receipt are truly those now quarrelled and the libel besides the particular writs has a clause, and others, the inspection whereof is absolutely necessary before answers can be made, and albeit the creditors were cited, yet the diets of the process being so uncertain did not think themselves concerned to answer unless they had been again certified. Which libel and debate above-written, being on the said 29 September 1690 considered by the foresaid commission of parliament, they then appointed Sir James Cockburn to give his oath of calumny upon the libel and to the effect he might appear before them, recommended him to the privy council to get personal protection. Afterwards, on 1 October 1690, the foresaid claim being again called, the said Sir James Stewart insisted that the depositions of bailie Fyfe, Linplum and others to be condescended on might be taken before answer on the points of the libel, as also, that Sir James Cockburn might be appointed to exhibit the bonds and assignations. To which it was answered by the said Mr James Leslie that upon the complainer's consent the defender was appointed to give his oath of calumny upon the libel and recommended to the council to get a protection for that effect and, therefore, there can be no examination of other persons until he first testify, as also until opinion be given anent the relevancy. And the said Mr James Leslie declared that he was not informed and that until the defender came to town he could not answer, and craved that he might be marked absent. Whereunto it was then replied by the said Sir James Stewart that he passed from the oath of calumny from the time and place. Upon which debate the said commission, by their other interlocutor dated 1 October, assigned 3 November then next to the above-mentioned persons to testify upon the libel, and granted diligence to the said complainer against them for that effect. Thereafter, on 28 November 1690, the said claim being again called, the above-named Sir James Stewart resumed the same, and the two missive letters above-mentioned by the deceased Morriston, which were read to discover the contrivance and repeated the foresaid other adminicles in process. Whereunto, it was answered by the said Mr James Leslie, that the backbond produced does meet the case of the assignations questioned and, as to the missive letters produced being by Morriston, the party cannot prove, and as to the discharge granted to Glencross, it was by the advice of Mersington that a discharge instead of an assignation was given to Glencross, being the same in law being paid by a tutor for his pupil. And the reason of the taciturnity was because Cockburn had never seen the backbond whereby he was better informed of his right, and Cockburn did intend process before the lords of session upon the assignations quarrelled. To which it was replied by the said Sir James Stewart, that the contrivance is so deep that it is not to be discovered by the ordinary methods of law and, therefore, presumptions must be founded on and witnesses examined, and though the missive letters would not be probative if Morriston who wrote them were the pursuer, yet he, being dead shortly after the writing of them and long before Cockburn did insist upon these pretences, the letters ought now to be respected. Whereunto it was duplied by the said Sir Patrick Home that the nature of the action being civil, a declarator of trust, the commission of parliament does not proceed in a legislative but in a judicative capacity, and so must follow the methods of law which, it is acknowledged are not sufficient to evince a trust. And as to the taking of a discharge, it does neither extinguish that debt as to Morriston but that Cockburn, as he who initiates the business, might have action against Morriston, far less to infer a presumption as to other sums, and the taking of a backbond produced does show that if there had been a trust in this case he would have also cleared it by a backbond, and the missive letters are not written to Cockburn and, if there had been such a trust, Morriston, by advice of Mersington, would never have rested satisfied so long a time without obtaining a declaration or complaining, or insisting to get the same, and Cockburn, being a person of great affairs and credit, his not seeking these sums or annualrents thereof is no qualification of trust, unless the same were proven in writing or by oath.
Which debate above-written, being considered by the said commission of parliament, they, by their interlocutor thereon dated 28 November 1690 before answering, ordained the depositions of the witnesses to be taken upon the libel and claim by Sir Robert Sinclair, commissary [James] Smollett and Mr Robert Clelland, three of their number or any two of them, and ordained Sir James Cockburn to exhibit the bonds and assignations mentioned in the claim, as also, to exhibit upon oath his account books for clearing of the said matter. Conforming to which interlocutor the persons after-named, being cited as witnesses in the foresaid action and cause by virtue of letters of diligence granted by the foresaid interlocutor of the date 1 October 1690, and there being letters of second diligence granted thereupon against them on 17 November 1690, they accordingly did compear on the respective days after-specified before the committee foresaid appointed by the said last interlocutor of the date 18 November 1690, for taking their oaths and depositions and there testified in the said matter as is after-mentioned.
On 4 December 1690 Alexander Bothwell of Glencross, compearing as a witness before the said Sir Robert Sinclair and commissary [James] Smollett, it was objected against him that he was of suspect reputation, there being a process of improbation of a discharge depending against him at the instance of [James Deans of] Woodhouslee. Whereto it being answered that it ought to be rejected, because no decreet produced and any such process denied to be depending, thereupon the objection was rejected. And the said Alexander Bothwell, married, aged fifty four years, being purged of partial counsel, sworn, examined and interrogated, testified that the money that was borrowed by Morriston from him was paid to bailie Gilbert Fyfe and that the bailie received the money on the account of his wife Stevenson's tocher, as the witness was informed the time of the borrowing of the money, and that the witness did, thereafter, assign his bond to [the laird of] Mortonhall, who was a cautioner for Morriston to him, and that he knows of no concern Sir James Cockburn had in that matter at the time of the borrowing of the money. But the witness heard thereafter and Mortonhall told him that Sir James Cockburn was to retire from him that bond as being a part of the price of the lands of Crumstane, and to relieve Morriston thereof, and that that was the truth as he should answer to God, the cause of knowledge is clear.
Thereafter compeared 6 December 1690, before the said commissary Smollett and Mr Robert Clelland, two of the foresaid committee, Gilbert Fyfe, merchant and late bailie of Edinburgh, aged past forty-five years, free and being purged of partial counsel, sworn and examined on interrogators given by Morriston as follows. First, if the deceased Morriston did make payment to him of the part he had of Stevenson's money and what he knew of that payment. Secondly, at whose desire and to whom he gave the two assignations to his part of Stevenson's money and if they were not given blank in the name, and if they were not delivered blank to Morriston or some one or other for him. Thirdly, what he knew of the payments were made to Robert Scott and Mr James Ross for their two wives who were also Stevenson's daughters. Fourthly, whether he received 5,000 merks from Glencross, and by whose order and on whose account, and if it was not on Morriston's and what part of it. He testified that he received from the deceased Morriston and Mr Alexander Spottiswood of Crumstane the sum of 5,334 merks as being the half of his proportion of Stevenson's money, and that he received also the second instalment from the said persons already testified. As to the second interrogator, that he remembers he gave an assignation blank in the name to the deceased Morriston for 5,000 merks of Stevenson's money, that he gave another assignation of a second instalment, also blank, either to Morriston or Mr Alexander Spottiswood, but does not remember to which of them. As to the third, testified ignorant. As to the fourth interrogator, testified that Glencross was present when he received the first 5,000 merks and that he heard in the company that the said sum was borrowed from Glencross, and that Morriston and Spottiswood gave bond for the money, and that he heard them say that the money was got from Glencross and that Mortonhall, brother-in-law to Glencross, was also present, the cause of knowledge being clear, and that this was the truth as he should answer to God.
And on the said day compeared before the said commissary Smollett and Mr Robert Clelland, William Hay, merchant in Edinburgh, aged about thirty nine years, married, who being solemnly sworn, purged of partial counsel, interrogated and examined on the interrogators given in by Morriston for that end as follows. Firstly, if he knew anything of the account kept by Sir James Cockburn of the price and payment of Crumstane, and to whom and how Sir James paid it, and if Sir James kept any written accounts in books or apart touching the same. Secondly, if he knew who paid the Stevensons' money and if Sir James Cockburn paid for the assignations the Stevensons gave and are now in Sir James's name, and if these assignations were not first blank in the name, and if they were not given to him by Morriston, and if Sir James paid for them. Thirdly, what he knew of the payment of Glencross's bond and of Walter Riddell's, Corsar's, the periwig-maker, and Linplum's etc., when they gave the blank assignations that Sir James now produces, and how it came that Sir James paid that money and on what account, and if he kept any account of those payments, and if Sir James did not get the foresaid discharge and assignations from the foresaid persons for Morriston's behoof, and if he knew wherefore Sir James meddled with these bonds since he was bound in none of them. Fourthly, if Sir James kept any account books in form about the time that he bought Crumstane and if these books did not contain a particular account of cash and if he knew where they were and what became of them. He testified as to the first interrogator, ignorant. As to the second, also ignorant. As to the third, also ignorant. As to the fourth, testified he could not be positive about what time Crumstane was bought by Sir James Cockburn, but that the witness began to keep Sir James's cash books the beginning of June 1673, which books did contain a particular account of the cash that was received in by the witness on the account of Sir James and paid out by his order, and to whom, which books he left in the custody of Sir James when he removed from his service which was in the year 1681 and, for what he knew, these books still continued in the custody of the said Sir James, the cause of knowledge is clear, and that this was the truth, as he should answer to God, as the depositions of the said witnesses extant in process bear.
Thereafter, the said commission by their interlocutor dated 16 February 1691, in regard that Sir James Cockburn, being often called to produce the bonds, assignations and account books and he failed therein, therefore, they granted certification and circumduced the term against the said Sir James Cockburn, and declared they would advise the cause on the adminicles adduced on Wednesday then next, and ordained both parties to give in their evidence and, afterwards, on 2 March 1691 they, by another interlocutor, remitted to Sir William Hamilton and Mr James Smollett above-named, two of their number, to consider the libel, depositions and other adminicles adduced for the pursuer, to prepare a report in the matter above-written, and to report the same to the commission for Monday then next.
And the said commission, after that on 9 March 1691, upon advising the cause, prepared and gave their report in this whole matter, bearing that they, having considered the foresaid complaint pursued by John Kerr of Morriston against Sir James Cockburn of that ilk, and heard both parties' procurators upon the presumptions and qualifications of trust therein libelled, and having likewise considered the depositions of witnesses taken by them for clearing the trust and two missive letters written by the deceased Morriston to my Lord Mersington with Sir James's taciturnity for sixteen years in not craving compensation of the debts due by him to Morriston all that time upon the bonds and assignations quarrelled, and considering Sir James's contumacy in not producing the bonds and assignations called for with his account books for clearing of the trust, conforming to the ordinance of the said commission, whereupon the term was circumduced against him, it was their opinion that the bonds and assignations called for were retired by the said Sir James as trustee for Morriston and to Morriston's behoof, and that Sir James can neither affect Morriston's estate with the said bonds and assignations, nor crave compensation thereupon of the debts due by him to Morriston, but that the said bonds and assignations called for ought to be declared void and null as being retired by Sir James for Morriston's behoof, as the said report fully contains.
After which, there being a petition given in and presented in May 1693 for Andrew Kerr, now of Morriston, and his tutors for their interest, to their majesties' then high commissioner and the right honourable the estates of parliament, humbly showing to them that where his deceased father intended a process of reduction and declarator before the honourable court of parliament against Sir James Cockburn of that ilk for making void certain bonds and assignations, which the said Sir James paid with the petitioner's grandfather's money, and took blank assignations now filled up in his own name. Which complaint and process was referred to the commission for fines and forfeitures and by them brought to a report, and seeing that the said matter was then ready to be reported, and that it was of a great import to the petitioner, the sums now craved being run up to a great debt and burden whereof, without the assistance of the said honourable court of parliament, the petitioner cannot hope to be relieved, therefore, humbly craving his grace and the then estates of parliament to call for and advise the said report and decide and determine in the said cause and for the petitioner's damages and expenses, according to justice, as the said petition bears.
With which petition, there being then produced for the said Andrew Kerr, the petitioner, an account allegedly written by the said Sir James Cockburn of money due by Crumstane to Morriston, consisting of the articles following. For bygone annualrent of 33,200 merks resting to Whitsunday [May] 1673, one per cent, being deduced to £4,112, for Mr James Ross as first payment; £3,833 6s 8d, to annualrent thereof to Whitsunday 1673 since Candlemas [2 February] 1667, £1,420 16s, to Gilbert Fyfe Candlemas 1670 as the remainder of one of his instalments; 764 merks, £509 6s 8d by interest thereof to Whitsunday 1673; £96 16s, February 1672 by principal sum to Robert Scott; the sum of 1,151 merks, £767, by interest since Candlemas 1672, £42 6s 8d, also paid [to] John Walker, extending in total to £10,849 4s, this beside the money paid by Cockburn to Linplum and Robert Scott, and of some other sums whereof Crumstane was to relieve Morriston and Cockburn consisting of these articles, namely by bond to Glencross, £3,333 6s 8d; by bond to Walter Riddell, £2,000; by [...], periwig-maker, £1,000; by bond to [...], commissary, £1,333 6s 8d; by a payment of Mr James Ross, £3,833 6s 8d, extending in total to £11,501 4s. At the end of which account there is written a memento that Morriston should be also discharged of the whole bonds and annualrents preceding the date of the assignations granted by Mr James Ross, Gilbert Fyfe and Robert Scott.
Their majesties' said commissioner, and the then estates of parliament, having on 4 May 1693 heard and considered the said petition, they ordained Sir James Cockburn and his advocates to see and answer the said petition and to be in readiness on Friday then eight days hence, being the 12th of the said month of May, with certification if they failed that they would proceed at the said diet.
Likewise, there being at the same time a petition given in and presented to the said commissioner and the foresaid estates of parliament by Sir James Cockburn of that ilk, humbly showing to them that where the petitioner, having acquired assignations to several bonds due by the late laird of Morriston and Crumstane for adequate, onerous causes and, having transferred rights thereof to several of his creditors, the last deceased Morriston did quarrel the assignations alleging that the petitioner was only trustee for his father, and that the sums ought to have been paid by the petitioner himself, against which process the petitioner proposed several most relevant exceptions in law. But the honourable committee for fines and forfeitures were pleased to receive depositions of witnesses for proving the trust and also to ordain the petitioner to produce the bonds and assignations together with his account books and, for not doing of which, the term was circumduced against the petitioner as to which the petitioner did humbly represent. First, that no report of the committee can be brought in to parliament until the bonds, assignations and the petitioner's account books are considered and his defences in law heard, for it was no contumacy in the petitioner not to produce the same before the bonds, not being in the petitioner's custody but in creditors' hands, and the petitioner, being under a great many captions and other diligence, so that he had not safe access to attend the committee and, having petitioned the committee for a protection, their lordships were pleased to refuse the same because the parliament was not then sitting, and seeing the petitioner had unanswerable grounds in law and clear documents to elide Morriston's pursuit and that the pursuer being dead and a long time intervening he, therefore, humbly craved his grace and the most noble lords and other honourable members of parliament not to receive the report of the committee, but to remit the consideration of the process to a further examination and to grant a protection to the petitioner that he may in safety attend the honourable committee before whom he should produce bonds, assignations, account books and other documents which would sufficiently elide the process at Morriston's instance, as the said petition bears.
The said high commissioner and the estates of parliament for the time having, on 4 May 1693, heard and considered the said petition they, by their interlocutor of that date, discharged all messengers and other officers to use any personal execution by caption, acts of warding or otherwise against the petitioner until 12 May then instant inclusive, that he might in safety attend and produce the above-mentioned bonds, assignations and others above-written he intends to make use of for eliding Morriston's process against him and that in the clerks' hands, that Morriston's advocates might have inspection thereof, which interlocutors upon the two last mentioned petitions were duly intimated at the dwelling house of the said Sir James Cockburn by David Denholm, writer in Edinburgh, agent and procurator for the said Andrew Kerr of Morriston and his tutors, who there also caused show and read the foresaid account of the tenor above-mentioned produced for Morriston and left a copy thereof with the said Sir James's daughter, as an instrument taken thereupon, under the hand of Mungo Buchanan, notary public, dated 27 May 1693, fully bears.
Thereafter, on 30 May 1693, the said high commissioner and the said estates of parliament, in respect that the foresaid case between the laird of Morriston and Sir James Cockburn was not then taken to their consideration did, by their other interlocutor of that date, continue the foresaid personal protection granted to Sir James on 4 May to 15 June then next inclusive. And there being no further procedure in the said matter made until November 1700 there was then a petition given in to his majesty's high commissioner and the right honourable estates of parliament for the time for the said Sir James Cockburn of that ilk and his creditors, humbly showing that the petitioner, having been cited to compear before the first session of that present parliament at the instance of the deceased John Kerr of Morriston to hear certain bonds granted by the deceased Mark Kerr, his father, and to which the petitioner, for onerous causes, had acquired right, reduced and extinguished; the said John Kerr did obtain the matter to be remitted to the committee of fines and forfeitures and taking then advantage of the petitioner's circumstances, who was under the apprehension of many personal diligences at the instance of the laird of Langton's creditors, to whom he also stood bound and could not for this reason compear to defend himself, did insist before the said committee with the outmost application. But as soon as the petitioner was in safety to compear and make his defence by the production of his writs, the matter was appointed to be heard in full parliament, and since the second session of that said parliament the heirs of the said John Kerr had not thought fit to insist, wherefore, seeing there are just and considerable debts due to the petitioner by virtue of these bonds upon which no other judicatory in the kingdom could sustain process because of the dependence before the parliament, and that the pursuers had never insisted in this process during the many sessions of parliament that had been since it was first intended, that the committee to whom it was remitted was then long ago extinct and that it was reasonable a pursuit in law should sometime have an end; and lastly, that the case is purely civil and proper to be decided by the judge ordinary in the first instance, the remedy of appeal to the parliament being still competent to either party as they should find themselves harmed that, therefore, it would please his grace and the said right honourable estates of parliament to remit the trial and decision of the foresaid process depending before the parliament to the lords of council and session.
Which petition the said high commissioner and estates having on 20 November 1700 considered, they ordained the heirs of the said deceased John Kerr of Morriston and their tutors and curators to see and answer the same the then next diet of parliament. Conforming to which interlocutor, there were answers by way of petition then presented for the said Andrew Kerr of Morriston and his tutors, humbly showing to the said high commissioner and the said estates of parliament that the deceased Mr Mark Kerr of Morriston, the petitioner's grandfather, having the two first and preferable rights on the lands of Crumstane, namely a wadset for 33,200 merks and an infeftment of relief for 28,579 merks, wherein Morriston was bound cautioner for Mr Alexander Spottiswood of Crumstane, Sir James Cockburn having an earnest desire for these lands as lying contiguous to with his barony of Duns, he buys in Morriston's two rights in 1673 and, for the principal sum in the wadset, he and Langton grant a heritable bond to Morriston, and for the bygone annualrents resting of the wadset and for such sums as Morriston himself had actually out of his own cash paid in part of the sums contained in the infeftment of relief, Sir James Cockburn at the same time grants bond to Morriston. But as to the sums Morriston had borrowed to clear and pay off the debts in the heritable bond of relief, and to make his infeftment of relief effectual, Morriston had that entire confidence in Sir James Cockburn that he, by an exuberant trust, fills in Sir James Cockburn's name in the assignations he had taken from the creditors in the infeftment of relief, and leaves it on Sir James Cockburn to pay the money he had borrowed to satisfy the creditors in the said infeftment of relief and retire him the bonds which Sir James undertook to do, and accordingly paid a part of the bonds and took discharges. But as to the rest, he most unjustly, after Morriston's death, took assignation. Mr Mark Kerr, dying soon after his bargaining with Sir James Cockburn, he had still that confidence in Sir James that he makes him one of the tutors to his children sine quo non, and all the while he was tutor and curator to Morriston's children he never once pretended that there were any such debts due by Morriston to him, notwithstanding that Cockburn himself was continually paying annualrents to Morriston's children and their factor for very considerable sums all the time. And no rational man would think that Sir James Cockburn would have paid annualrents for sums when he had debts due to him that would have secured them. Likewise, during all the time Sir James Cockburn's credit was entire there was never any word of these pretended debts, but so soon as he was broken, his straits prevailed with him to make over the said debts and assignations to some of his creditors against Morriston which, being a great surprise to Morriston and all his friends, and Sir James having endeavoured to deprive them of the benefit of his oath by making over his right of the said debts to his creditors, and Morriston having only an unsubscribed account under Sir James's hand with the foresaid other arguments to make out the trust, Morriston was necessitated to apply to the parliament of 1690 for an extraordinary remedy in such an extraordinary and surprising case. Whereupon, it pleased the parliament to refer the matter to the committee of fines and forfeitures who, after hearing of both parties in their presence and examining several witnesses, brought the matter to a clear report which was also laid before the honourable court of parliament. Also, when Morriston afterwards gave in a petition to have the same advised Sir James, by way of counter petition, gave in long answers thereto so that the matter was fully prepared for the parliaments advising and deciding therein. But Morriston coming to die and leaving his son the petitioner, an infant under age, the matter had lain over the tutors, judging rightly that it was plainly brought to such a state that their pupil could have no detriment by the delay. But Sir James, thinking to turn this to his own advantage, did then petition his grace and their lordships that this matter might be remitted to the lords of session as an extraordinary declarator of trust and pretending also that the foresaid committee was extinct and all matters remitted thereto by a late act of parliament remitted to the lords of session. To which it was answered, that his grace and lordships might perceive that this was no ordinary declarator of trust, but rather such a singular and extraordinary case as did very well deserve a parliamentary remedy. But secondly, the matter being brought to a subscribed report and laid before the said honourable court, it was no longer a case depending before the said committee, but is most evidently a case lying ready prepared for the parliament's determination, so that to crave it to be remitted to the lords of session as a depending matter before that committee when it plainly lay as a prepared report before the parliament itself was wholly groundless and without any precedent. But because Sir James alleged that he suffered by the delay and that a pursuit of that kind should sometimes have an end, Morriston did fully close with him and, therefore, humbly crave his grace and their lordships to call for the said report and to proceed to decide and determine in the said matter, which was so fully prepared for his grace's and their lordships' final judgement, it being evident that Sir James only shifted the advising of the said report and craved a remit to the lords of session that he might avoid the trial already taken and opinion given by the committee, and involve the petitioner in new process and difficulties against all form and reason.
And the said petition and answers being on 23 December 1700 considered by the said high commissioner and the said estates for the time they, by their interlocutor of that date, declared they would hear the case between the said laird of Morriston and Sir James Cockburn, Sir William Paterson and the other creditors of the said Sir James, and appoint a diet for that effect when they should come to consider private affairs. After which time, until June last, the said affair having lain over, there was a petition to her majesty's high commissioner and the estates of parliament then given in by the said Andrew Kerr of Morriston, with consent of his curators, humbly showing that where it is not unknown to many of the members of the honourable court of parliament how long the petitioner has depended before them for discussing of a declarator of trust at his instance against Sir James Cockburn of that ilk, and what advance has been made therein, so that in effect it lies only at the advising of a report of the committee of parliament who fully heard and prepared the matter. And yet now, after more then twelve years' time, the petitioner has not been able to bring it to any decision, which being premised for obtaining his grace's and their lordships' serious consideration to bring this matter to a final conclusion, the short and plain account then of the matter is that the deceased Mr Mark Kerr of Morriston, the petitioner's grandfather, having the two first and preferable rights on the lands of Crumstane, namely a wadset for 33,200 merks and an infeftment of relief for 28,579 merks wherein his said grandfather was bound cautioner for Mr Alexander Spottiswood of Crumstane and Sir James Cockburn, having a mind for these lands as lying contiguous to with his barony of Duns, Sir James bought the petitioner's grandfather's two rights in April 1673, and for the principal sum in the first wadset he and Langton granted a heritable bond (which is not now in question) and for the bygone annualrents resting of the said wadset, and such sums as the petitioner's grandfather had actually paid out of his own cash, in part of the sums contained in his infeftment of relief Sir James Cockburn, at the same time, granted his bond. But as to the sums the petitioner's grandfather had borrowed to clear and pay off the rest of the debts contained in the heritable bond and infeftment of relief, so as the same might be made effectual to Sir James (to whom the petitioner's grandfather had made his right over) he had that entire confidence in Sir James that, by an exuberant trust, he filled up Sir James's name in the blank assignations he had taken from the creditors in his infeftment of relief, and left it on Sir James to pay the money that he had borrowed to satisfy these creditors and to retire him his bonds, which Sir James undertook to do and accordingly paid a part of the bonds and took discharges. But as to the rest, he after the petitioner's grandfather's decease did very unjustly take assignations and, the petitioner's grandfather dying very shortly after the bargain, he according to the entire confidence he then had in Sir James, made him one of the tutors sine quibus non to the children and, all the while Sir James was tutor and curator to the children he never once pretended that there was any such debts due to him by the petitioner's grandfather, notwithstanding that Sir James himself was continually paying annualrents for considerable sums that he was due to him, which annualrents no rational man can think that Sir James could have paid when he had debts as now he pretends due to himself that would have secured them. And further, during all the time Sir James's credit was entire (which was for fifteen years thereafter) there was never a word of these pretended debts. But Sir James, coming to fail in his credit, his straits moved him to make over the foresaid debts and assignations to some of his creditors, which was a great surprise to the petitioner's father and friends and, so much the more, that Sir James, by making over these debts to his creditors, had endeavoured to deprive the petitioner's father of the benefit of his oath.
But the case being very extraordinary and there being only an unsubscribed account under Sir James's hand, with such arguments as might arise from the case of his trust, the petitioner's father was necessitated to apply to the parliament of 1690 who, considering the extraordinary merit of the cause, were pleased to refer the matter to the committee for fines and forfeitures and, before this committee, parties were often and fully heard and several witnesses examined, and the whole affair brought to a clear report in the terms following: 'Edinburgh, 9 March 1691, the commission for fines and forfeitures, having considered the complaint pursued by John Kerr of Morriston against Sir James Cockburn of that ilk, and heard both parties' procurators upon the presumptions and qualifications of trust therein libelled and having, likewise, considered the depositions of witnesses taken by them for clearing the trust, and the two missive letters written by the deceased Morriston to my Lord Mersington, with Sir James's taciturnity for sixteen years in not craving compensation of the debts due by him to Morriston all that time upon the bonds and assignations quarrelled, and considering Sir James his contumacy in not producing the bonds and assignations called for with his account books for clearing of the trust, conforming to the ordinance of the said commission whereupon the term is circumduced against him, it is their opinion that the bonds and assignations called for were retired by the said Sir James as trustee for Morriston and to Morriston's behoof, and that Sir James can neither affect Morriston's estate with the said bonds and assignations, nor crave compensation thereupon off the debts due by him to Morriston, but that the said bonds and assignations called for ought to be declared void and null as being retired by Sir James for Morriston's behoof. Signed thus [William Lindsay, earl of] Crawford, president'.
Likewise, this report was laid before the parliament by a petition from the petitioner's father to which Sir James gave in long answers so that the matter was ready for the parliament's advising and final decision. But the petitioner's father coming to die and leaving him an infant under age, the matter was laid aside by his tutors as judging rightly that he could have no detriment by the delay. But Sir James laying hold on this seeming advantage did move by a bill for a further hearing, but without any success. By all which, his grace and their lordships may plainly perceive how this whole affair is prepared and fully ripe for the parliament's decision and that the only point that remains is to advise the foresaid report, and seeing upon an intimation to both parties their evidence for his grace and their lordships may easily be given in, which will bring the whole cause before his grace and their lordships, so that there needs neither further debate nor evidence, nor probation to be taken therein, and that all that is needful is to advise the said report with the informations, therefore, humbly craving his grace and their lordships to appoint a day for taking in and advising the said report with the informations that shall be offered hereafter, and to cause intimate the same that both parties may be in readiness, and a matter of this importance, so long depending, may be brought to a final issue according to justice as the said petition bears. Which petition, being on 9 June last read in the presence of and considered by her majesty's high commissioner and the estates of parliament they, by their interlocutor of that date, granted warrant to macers to cite the said Sir James Cockburn by giving a full copy of the said petition and report above-mentioned therein related, that he might be ready to answer the first sederunt of parliament on the then next week. By virtue of which interlocutor and warrant therein contained the said Sir James Cockburn was so cited or summoned, being personally apprehended by Charles Maitland, one of the ordinary macers, before the session and parliament, upon the 10th of the said month of June, as is fully mentioned in execution of the foresaid warrant extant in process. And thereafter, on a petition to her majesty's high commissioner and the estates of parliament given in by the said Andrew Kerr of Morriston and his curators, humbly showing that in the action at the petitioner's instance against Sir James Cockburn of that ilk, which had so long depended before his grace and honourable estates of parliament, his grace and their lordships had now declared that they will hear both parties' procurators thereupon and advise the report made by the committee therein the first sederunt of parliament of the then next week, and seeing the petitioner's lawyers, namely Sir James Stewart, her majesty's advocate, Sir Gilbert Elliott of Headshaw and Sir David Cunningham, advocates, are all members of parliament, and cannot plead for the petitioner in this action without his grace's and their lordships' special allowance and liberty, therefore, humbly craving his grace and their lordships to appoint and allow the said Sir James Stewart, her majesty's advocate, Sir Gilbert Elliott and Sir David Cunningham, advocates, to plead for the petitioner in the foresaid action according to justice. The said high commissioner and the estates, by an interlocutor dated 11 June last bypast, appointed and allowed her majesty's advocate, Sir Gilbert Elliott and Sir David Cunningham to plead for the petitioner in the above-written action, and after that, on 17 June, her majesty's high commissioner and the estates of parliament, by another interlocutor, appointed the petitioner's case to be considered the first sitting of parliament for private affairs. Afterwards, upon another petition to her majesty's high commissioner and the said estates for the said Andrew Kerr, with consent of his curators, humbly showing that his grace and their lordships (upon a former petition given in by him in June last) were pleased to declare that they would allow the report made by the commission for fines and forfeitures (in the process at the petitioner's instance against Sir James Cockburn) to be brought in and advised the first of all private business and, seeing his process has long depended and is ready to be advised, therefore, craving his grace and the honourable estates to appoint a day for advising the said report and appoint intimation to be made thereof to both parties, as the said petition bears. The said commissioner and estates foresaid, by their interlocutor dated 30 August last, appointed the above report to be first read the first sederunt of the week then next, at which time private business was ordered to be proceeded in. And on the said sederunt, which was 6 September instant, the parliament having resolved that the next day thereafter they should meet should be entirely bestowed in discussing private cases, the said action and cause was accordingly, upon the day and date of these words, called in the usual form by a macer at the gate of the parliament house, and the said pursuer compearing by the said Sir James Stewart, her majesty's advocate, and Sir Gilbert Elliott (by virtue of the allowance above-written granted to them) and by Sir Walter Pringle, advocates and his procurators, who having for him formerly produced in presence of her majesty's high commissioner and the said estates, the foresaid account of money due by Crumstane to Morriston extending, as said is, to £10,849 4s, and of the other sums above-mentioned whereof Crumstane was obliged to relieve Morriston and Cockburn extending, as above, to £11,501 4s, together with a mandate granted by Andrew Kerr of Morriston, with consent of his curators thereto subscribing, to George Swinton, writer in Edinburgh, giving him power and commission to deliver to Sir Archibald Cockburn of Langton and Sir James Cockburn of that ilk the bonds which are set down above the said mandate, amongst which is a bond by the said Sir James Cockburn for £10,850, together also with another account between the said Sir James Cockburn and Morriston bearing that there was resting at Martinmas [11 November] 1687, by the said Sir James to Morriston, the sum of £3,320 10s 6d, which two accounts above-written are both unsubscribed. They the said procurators, for the pursuer at calling of this action upon this day, in manner foresaid, resumed the process that by remit of parliament it was brought before the commission for fines and forfeitures and that, after calling several times and hearing the cause and that the defender had declined upon oath to exhibit his account books for clearing the trust, and several witnesses examined thereupon, the commission signed a report to the parliament giving opinion that the assignations to the bonds were taken by Cockburn the defender to the use and behoof of Morriston, and could not be made use of against the pursuer, either for making up the debts due to him or to affect his estate and craved that the report, probation and grounds whereupon it is founded might be advised. And the said defender, then compearing by Mr Thomas Kennedy, advocate and his procurator, it was represented by him for the said defender that the warrant to cite him before the commission of parliament in 1690 was in absence, the defender not being allowed to see or answer it that by virtue of legal diligence against him, at the instance of the creditors of Langton and his own, he could not appear at that time before the commission of parliament, and that any appearance made in his behalf was for a protection that he might appear and defend his right and his procurators craving delay that they might be instruct to plead, and so the report has proceeded in absence of the defender and on supposition of contumacy, that he would not when he could not appear, and that he would not produce bonds and assignations when he had them not, they being given up by him to Sir William Paterson and his other creditors and, therefore, the matter is yet entire to him to propose his defences, as if no report had been made, which he now does; that the matter being civil and which did depend before the session, it cannot be brought in the first instance before her majesty's high commissioner and the honourable estates of parliament as contrary to the acts of parliament, act forty fourth, parliament second, King James I and twenty fifth act, parliament sixth, James III, and sixty second act, parliament eight, James III, ordering all civil actions to be decided in the first instance by the judge ordinary. Which debate above-written, her majesty's high commissioner and the estates of parliament foresaid, having this day heard and considered, they have remitted and do hereby remit the case in the state it is to the lords of session to be discussed by them summarily without abiding the course of the roll. Extract.
[1703/5/173]*[print] [email] [cite] [preceding] [following]
The action at the instance of [Charles Home], earl of Home against Sir Patrick Home, for insisting upon his protestation for remedy at law against the earl, called, and the advocates for either party ordained to be ready and insist in their several actions at the next diet of parliament for private business. After which, the vote was asked, whether the parliament should at their next meeting proceed upon public or private business, and carried they should proceed upon public business.
The lord chancellor, by order of her majesty's high commissioner, adjourned the parliament until Thursday next at 10 o'clock.