[1704/7/114]*[print] [email] [cite] [preceding] [following]
Prayers said. Rolls called and the absent members marked.
Minutes of the last sederunt read.
Ordered that the consideration of the papers relating to the plot come in immediately after the accounts and nothing to intervene.
The act anent the wool again read and put to the vote, approve of this act or not, and carried approve.
Act continuing the commission for auditing the accounts of the public funds, read the second time and, after several amendments made thereon, it was put to the vote, approve this act or not, and carried approve.
[1704/7/115]*[print] [email] [cite] [preceding] [following]
The lord chancellor, by order of parliament, gave thanks to the earls [James Stewart, earl of] Galloway, [David Carnegie, earl of] Northesk, [Colin Lindsay, earl of] Balcarres, [Charles Murray, earl of] Dunmore and [John Dalrymple, earl of] Stair, Robert Dundas of Arniston, Sir John Lauder of Fountainhall, John Haldane of Gleneagles, William Seton of Pitmedden, younger, James Ogilvie of Boyne, younger, Colin Campbell [of Woodside], Mr John Clerk [of Penicuik], Mr Dougald Stewart [of Blairhall], Sir David Cunningham [of Milncraig] and Mr Robert Fraser, members of the said commission, for the exact diligence in their report, and allowed a gratification to four of their number, being a committee appointed by the rest, to whom there was given a sum to be distributed by them to their clerk and the other servants.
[1704/7/116]*[print] [email] [cite] [preceding] [following]
Petition of Archibald Houston, writer to the signet, craving a gratification for his two years' service as clerk to the late commission of parliament, read and he allowed to retain of the money in his own hands £100 sterling for his said service as follows.
[1704/7/117]*[print] [email] [cite] [preceding] [following]
Her majesty's high commissioner and the estates of parliament, having heard the petition of Archibald Houston, writer to the signet, humbly showing to them that the petitioner, having had the honour to serve as clerk to the late commission of parliament anent the poll 1693 for the space of two years and upwards, during which time the petitioner served in the said office with all possible care and never exacted anything from the officers for his said service. And seeing, by orders of the last commission for auditing the public funds, any of the money that was brought in to the petitioner's hands is ordered to be transmitted entirely to the hands of their clerk, and that the commission to whom the petitioner served as clerk and who saw and knew his pains and diligence thought fit to refer the gratification they should think proper for him until the dividend should be made, and seeing it is just that he should have a consideration and reward for his two years' service and labour in the said affair, having received nothing at all from the officers, as said is, and now being to deliver up what of the fund of the poll-money is in his hands, therefore, humbly craving his grace and the honourable estates of parliament to allow and appoint to the petitioner such a suitable gratification and reward for his two years' service and pains, as said is, as his grace and honourable estates should think fit, and to allow the petitioner to retain the same in his own hands, as the said petition bears. And his majesty's high commissioner and the said estates of parliament, having fully considered the said petition, and being therewith well and ripely advised, they allowed and hereby allow to the petitioner, for his above two years' service and pains, £600 Scots yearly, extending in all to £1,200 money foresaid, and allowed and hereby allow the petitioner to retain the said sum of £1,200 in his own hand.
[1704/7/118]*[print] [email] [cite] [preceding] [following]
Ordered that those who have claims to the respective funds and have not given in petitions be equally considered by the commission with those that have given in petitions.
Agreed that all who are liable to diligence for clothing their regiments and companies be specially taken into consideration by the commission according to the appropriations by acts of parliament.
[1704/7/119]*[print] [email] [cite] [preceding] [following]
Petition of Lieutenant Colonel Campbell craving payment of arrears, read and remitted to the commission to consider the specialities therein mentioned.
Petition of William Montgomery, servant to [James Ogilvy], earl of Seafield, lord high chancellor, craving payment of arrears due to his father, read and ordered that £100 sterling be paid him out of the first and readiest of the poll of 1693, in manner following.
[1704/7/120]*[print] [email] [cite] [preceding] [following]
Anent the petition given in and presented to his grace her majesty's high commissioner and the right honourable the estates of parliament by William Montgomery, servant to [James Ogilvy], earl of Seafield, lord high chancellor, showing that where Hugh Montgomery of Boreland, the petitioner's father, having served as corporal to the late [Alexander Montgomery], earl of Eglinton's troop, and thereafter as quarter master, there was due to him of arrears preceding 1 February 1691 the sum of £100 sterling money and the petitioner, having paid considerable sums for his said father when he was reduced to great straits and difficulties, even to the hazard of imprisonment and want of necessary subsistence for himself and family, and that the said Hugh Montgomery did faithfully serve his late majesty in the said offices wherein he spent his own means, whereby he was reduced to the foresaid straits and difficulties, therefore, craving his grace and the honourable estates to allow the petitioner the arrears due to his said father whereunto he has right from him, for the causes foresaid, to be paid out of the poll-money of 1693, which is lying in the hands of the clerk to the commission of parliament, which is the fund appointed for the foresaid arrears, as the said petition bears. Which petition and desire thereof, being this day read in the presence of his grace her majesty's high commissioner and the said estates of parliament and they, having heard and considered the same and being therewith well and ripely advised, they ordained and hereby ordain £100 sterling to be paid him out of the first and readiest of the poll-money of 1693. Extract.
[1704/7/121]*[print] [email] [cite] [preceding] [following]
Petition of the Lord Forbes craving payment of arrears, read and remitted to the commission to consider the specialities therein mentioned, and Lieutenant Colonel James Bruce of Kennet and Lieutenant Colonel Reid their cases likewise remitted to the commission.
Petition of Major James Cunningham of Aiket craving payment of arrears, read and remitted to the commission.
Petition of Elizabeth Maxwell, spouse to Captain Robert Drummond, and Jean Drummond, his sister, as having right from Captain Thomas Drummond, also her brother, craving payment of arrears due to them, read and remitted to the commission, and the case of Lieutenant John Murray in [John Murray], earl of Tullibardine's late regiment likewise remitted to the commission.
Petition of Lieutenant Alexander Stirling craving payment of arrears, read and remitted to the commission.
Petition of Lieutenant Colonel William Hay of Park craving payment of arrears, read and remitted to the commission for the public accounts to consider the petitioner's case, with that favour which his present condition, and the losing of one of his brothers in Darien and another before Namur, justly deserved.
Petition of Captain Thomas Hay craving a protection read, and a warrant granted to cite his creditors on twenty-four hours' warning.
[1704/7/122]*[print] [email] [cite] [preceding] [following]
Petition of Sir Alexander Bruce of Broomhall and partners craving repayment of disbursements for the army out of some proper funds read, and remitted to the commission for public accounts, this remit neither suspending execution against him and partners, nor at his cautioners' and partners' instance against him for their relief.
Petition of Sir George Hamilton craving payment of bygone salaries due to him, read and remitted to the commission to consider his case and determine therein as they shall find just, in manner following.
Her majesty's high commissioner and the estates of parliament having heard the petition of Sir George Hamilton of Tulliallan, humbly showing to them that where his majesty King William, of ever glorious memory, by his letters patent of the date at Kensington, 5 January 1691, and thereafter expedited under his majesty's great seal of this kingdom, did nominate and appoint the petitioner receiver general of the funds of supply and inland excise and paymaster general of the army, which offices by the said letters patent the petitioner was to bruik and enjoy until the same were recalled by his majesty, with all the profits and emoluments known to appertain to the said office, and for the petitioner's pains and trouble in the discharge thereof, £600 sterling of yearly salary was appointed to him by the said letters patent, as the same produced with the said petition bear. The petitioner did enter upon the said office and continued therein several years and discharged the same to the satisfaction of the lords of treasury and all others concerned, as is well known to several of their lordships, and he received two years and three months' salary and there is yet due to him upwards of five years preceding the king's death, his commission not having been recalled during that time. And, therefore, craving his grace and honourable estates of parliament to consider the circumstances and ordain the petitioner to be paid of the bygone salaries due to him in the way and manner and out of such funds as his grace and their lordships should think most proper, as the said petition bears. And her majesty's high commissioner and the said estates, having considered the said petition this day, they remitted and hereby remit to the commissioners for the public accounts to consider the petitioner's case and determine therein as they shall find just.
Petition of Cornet John Murray craving payment of arrears, read and remitted to the commission.
Petition of James Maxwell, John Drummond and James Dunlop, late general receivers, craving payment of the balance of an account due to them, read and remitted to the commission to consider the petitioners' case and determine therein.
Petition of Isobel Kerr, lady Manderston, craving payment of arrears due to her deceased husband, read and remitted to the commission.
Petition of [Elizabeth Talmash], duchess of Argyll craving payment of arrears due to the late [Archibald Campbell], duke of Argyll, read and remitted to the commission.
Petition of Captain James Stevenson craving payment of arrears due to him, read and remitted to the commission.
Petition of Sir William Hope of Balcomie craving payment of arrears due to him, read and remitted to the commission.
[1704/7/123]*[print] [email] [cite] [preceding] [following]
Ordered that all the officers that went to Caledonia have preference out of the respective funds in which they are concerned.
[1704/7/124]*[print] [email] [cite] [preceding] [following]
Petition of James Bain craving payment of a sum due to him, read, the parliament declared they would take this petition and the petitioner's case to their consideration when they can conveniently and, in the meantime, recommend to the lords of treasury to pay the petitioner yearly for his aliment £100 sterling to be paid quarterly until his case be taken into consideration, which recommendation etc. is as follows.
Her majesty's high commissioner and the estates of parliament, having heard the petition of James Bain, her majesty's master wright, humbly showing to them that King Charles II, having considered the ruinous condition of his palace of Holyroodhouse and of the castles of Edinburgh, Stirling and the Bass and that, for the safety of the kingdom, these castles ought to be repaired and a palace built for the better reception of his majesty and his successors whenever they should visit their ancient kingdom, and also for the accommodating of their high commissioners and chancellor and other officers of state to parliaments for doing the necessary affairs of the kingdom at any time, the petitioner being employed as master wright to the foresaid works, when the funds appointed for defraying the expenses thereof were exhausted and there was no money in the public treasury for perfecting the same, the petitioner, having a stock of timber of his own in the mouth of Leith at the time to the value of £50,000 Scots as can yet be instructed, he not only furnished the greatest part thereof to the said work, but also for paying the workmen he raised £33,000 out of the hands of the earls of Tweeddale, Panmure and Strathmore and other persons who were his debtors and, when all this came short of finishing the work, he engaged his credit and borrowed to the value of £27,500 money foresaid, from several persons, for perfecting the said palace and castles. These four last sessions of parliament the petitioner applied himself to his majesty's high commissioner and right honourable estates of parliament, and in the first session he obtained an act recommending him to his majesty for taking some course for his payment and to the lords of treasury for subsistence; and in the second session, there being a committee appointed for considering the petitioner's accounts and instructions thereof, they reported that they had seen his accounts and instructions by which the public was resting to the petitioner the sum of £81,769 Scots. After this report was made, his majesty's commissioner and estates of parliament were considering to determine a fund for the petitioner's effectual payment, but the parliament rising sooner than was expected, there was nothing done for him but only an act passed in his favour again recommending him to his majesty for payment and the lords of treasury for subsistence. In the third session of parliament the petitioner's case was again recommended to a committee for finding out a fund for his payment, but through the multiplicity of affairs and shortness of time nothing was done, but again the petitioner was recommended to his majesty for payment and to the lords of treasury for subsistence, and if payment were not made the committee assured the petitioner that a fund should be determined for his effectual payment at the next session of parliament. But in the last session of parliament, though the petitioner applied by way of petition, yet nothing was done for him. The petitioner humbly represents that he is utterly ruined unless his grace and honourable estates prevent it, for his creditors have been these twenty years in possession of all that he has and that for these very debts which he contracted for the public, besides he is obliged to pay these twenty-four years bypast interest of £27,500 principal which he borrowed for carrying on the said work and the annualrent in the said time extends to £39,050 from Whitsunday [May] 1678 to Whitsunday [15 May] 1702, being twenty-four years' principal and interest, extends to £66,550 that the petitioner is indebted and which he contracted for the public, besides the expenses of adjudication and other legal diligence which he must also pay. And when the petitioner is paid the sum of £81,769 owed by the public to him, and that he has paid the neat sums borrowed and interest thereof there will be nothing remaining to him for all his great stock above-written but only £15,219, and which completes his misery, having given out his own stock of £50,000 and raised the sum of £33,000 for furnishing the said works and paying the workmen, he is thereby incapacitated from selling timber as he was wont and also from following his employment as wright and has been under this inability of doing anything for himself these eighteen years bygone. The honourable estates have thought it worth their consideration, and becoming the honour of the kingdom, to determine and appoint funds for paying what was resting to the soldiers and the petitioner humbly conceives that the building of his majesty's palace and repairing the castles and forts are no less necessary for the honour and safety of the kingdom, and seeing the petitioner, out of a generous disposition, love to his country and confidence to the public, did expend his own fortune and contract debts for accomplishing and perfecting the said works, its hoped his grace and honourable estates will prevent the petitioner's ruin. The public may yet stand in need of the assistance of private persons, but if they suffer the petitioner to perish, his ruin will discourage others and none hereafter will adventure to give money to the public except when they see effectual funds for their reimbursements, which may too often be of pernicious consequence to the nation. Therefore, craving his grace and the right honourable estates of parliament to take the petitioner's case to their serious consideration, and in regard of the public, the credit of the nation and justice to the petitioner to give an act finding the said £81,769 Scots due to the petitioner, and appoint a fund out of which he may be paid the same with interest thereof since [John Murray], earl of Tullibardine's session of parliament, at which time it was found due and yearly and proportionally during the non-payment that the honour of the kingdom may be preserved, the petitioner's ruin prevented and all persons may be encouraged to carry on public works, and advance money to the completing of them when they shall hear and see what justice the right honourable court of parliament has done to the petitioner, as the said petition bears. And her majesty's said commissioner and the estates of parliament foresaid, having this day considered the said petition, they declared and hereby declare they will take the said petition and the petitioner's case to their consideration when they can conveniently and, in the meantime, they recommended and hereby recommend to the lords of her majesty's treasury to pay to the petitioner yearly for his aliment by quarterly payments the sum of £1,200 Scots money until his case be taken to consideration.
[1704/7/125]*[print] [email] [cite] [preceding] [following]
Petition of Sir James Stewart [of Goodtrees], her majesty's advocate, craving a process of proving the tenor may be remitted to the lords of session to be by them examined and finally determined with a parliamentary power, read, and remitted to the lords of session to determine in the said process summarily without abiding the course of the roll, which remit is as follows.
Anent the summons and action for proving the tenor raised and intended before the high court of parliament at the instance of Sir James Stewart of Goodtrees, her majesty's advocate, against Robert Johnston, son and heir to the deceased James Johnston, writer to the signet, and Anna Hamilton, his mother and widow of the said James, William Kerr, son and heir to the deceased William Kerr, factor to the estate of Kincavil, and Katherine Hamilton, his mother, making mention that where in the year 1681 the pursuer, being chosen arbiter between the deceased James Johnston, writer to the signet, and the rest of the creditors of Kincavil, the deceased William Kerr, factor for the estate, sent to Edinburgh 2,000 merks to be delivered by the said Sir James Stewart to the said James Johnston upon his receipt and discharge, which the said Sir James Stewart really delivered and got James Johnston's discharge, and marked it upon the back to be delivered to the said William Kerr, but the pursuer's troubles supervening and he, being chased away the said year, his papers were also secured† and the discharge some way miscarried, whereupon, at his return in the year 1688, the said deceased William Kerr, his son and widow, pursued the said Sir James Stewart for the said discharge, or to repay them the 2,000 merks. And though he proved by his servant Thomas Spence that he had delivered it, and that even the parties themselves are under the conviction that he did deliver it, yet James Johnston, being then dead and his son then a minor, the pursuer could not get the discharge made up but was necessitated to succumb to a decreet unless he could recover or make up the discharge between then and a certain day, and seeing that he lost the said discharge by his being forced to retire in the year 1681, against which and all damages sustained thereby he is by the act of parliament of 1690 to be restored, and that he has now found out the documents underwritten as follows. First, besides the said Thomas Spence his oath and deposition who was the pursuer's servant for the time, that testifies distinctly of the delivery of the money to the said deceased James Johnston, and of his granting of the discharge, and of the pursuer's having the discharge amongst his papers, and how it miscarried and that the said deceased James Johnston did, while he lived, acknowledge the receiving of the money, the pursuer produces the deceased William Kerr's letter sent to him with the money upon 5 May 1681, with a note made then upon the back of it written with the pursuer's hand, but with such old and decayed ink as any man may be convinced it was then written and runs in these terms: this 2,000 merks was delivered to James Johnston who gave thereon his discharge to Mr Kerr. Secondly, the pursuer likewise produces an inventory of writs left in the press at the pursuer's house at Bristo, which was made by James Stewart, his nephew, immediately after the pursuer fled, and is a known handwriting and of old ink and verifies itself by ocular inspection, which bears fifth bunch, charter and sasine, Lord Lindsay to Ninian MacMoran, discharge James Johnston to William Kerr of 2,000 merks etc., which discharge is the very discharge lost and was then left by the pursuer, as said is. Thirdly, it is not imaginable that the deceased James Johnston, who lived for years after 1681, the date of the discharge, would have been silent and not complained for want of the said 2,000 merks, nor in effect has the want of the said 2,000 merks been complained of now these twenty-four years, only the said William Kerr's son and widow fearing they may be troubled for want of the discharge have been instant with the pursuer to have it made up in manner by him represented. And fourthly, the pursuer may own so much of probity and credit as to offer his oath that as he received the said 2,000 merks in two sealed bags to be delivered to the said James Johnston, he accordingly delivered the same and got James's discharge, though now lost, but which is craved to be made up according to the tenor following, and these are the pursuer's documents for making up the said discharge which he hoped would satisfy her majesty and the estates of parliament for making up the tenor of the said discharge, wherefore necessary it was for the pursuer to have summons for that effect in manner underwritten and anent the charge given by virtue of the said summons to the said Robert Johnston and Anna Hamilton, at their dwelling houses, by one of the macers of session, and to the said William Kerr and Katherine Hamilton and William Bell, town clerk of Linlithgow, now her husband for his interest, personally apprehended by a messenger at arms, to have compeared before her majesty's high commissioner and the honourable estates of parliament at a certain day now long bygone with continuation of days to have answered at the instance of the said pursuer in the said matter, that is to say the said defenders to have heard and seen the foresaid discharge now lost and amitted, made up and proven by decreet of parliament to be of the tenor following.
I, James Johnston, writer to his majesty's signet, do hereby grant me to have received by the hand of James Stewart, advocate, from William Kerr, factor appointed by the lords for the lands of Kincavil belonging to Whitehead of Park, upon which I am a preferable creditor, the sum of 2,000 merks Scots money of the rents thereof and, therefore, discharges the said William Kerr, as factor foresaid, of the said sum of 2,000 merks of the rents of the said lands preceding the year 1681, obliging me, my heirs and executors to warrant the same at all hands and against all persons, and consents these words to be registered in the books of council and session for conservation and, if need be, to have the strength of a decreet, that letters may pass hereon as appropriate and thereto constitutes [...] my procurators, in witness whereof (written by John Clerk, my servant) I have subscribed these words with my hand, at Edinburgh, the [...] day of [...] 1681, before these witnesses, the said John Clerk and [...]† James Johnston, John Clerk, witness [...]. And the same being so made up to hear and see the same discerned and declared by decreet foresaid to be a sufficient and valid discharge and of as great force, strength and effect in judgement and outwith the same and in all cases and causes in time coming as if the principal discharge itself were extant and not amitted and lost in manner foresaid, conforming to the laws and daily practice of this realm used and wont in the like cases in all points, or else to have alleged a reasonable cause in the contrary why the same should not be done, with certification to the said defenders if they failed to compear her majesty's said commissioner and the estates of parliament would proceed in the said matter and discern, make up and declare in manner foresaid, as in the said summons and executions thereof is fully expressed. The said Sir James Stewart, pursuer, compearing personally who, for instructing the said summons, produced in the presence of her majesty's high commissioner and the said high court of parliament the above-mentioned principal deposition or oath of Thomas Spence, writer in Edinburgh, taken before [Sir Colin Campbell], lord Aberuchill on 20 December 1699, in the action pursued before the lords of council and session at the instance of the said William Kerr and his mother against the said Sir James Stewart, with the foresaid missive letter directed from William Kerr to the said pursuer of the date above-written and the note, in the words above-expressed, written thereon, together also with the foresaid inventory mentioned in the said summons and founded on, as is above specified, for making up the said discharge. And the said whole defenders, who were summoned in manner foresaid to this action, compearing by Sir Walter Pringle, advocate, their procurator, at first calling of the said summons in the usual manner at the great gate of the parliament house, after elapsing of the day to which they were cited by virtue thereof, and there being a petition to her majesty's high commissioner and the said estates of parliament thereafter given in and presented by the said Sir James Stewart, pursuer, humbly showing to them that where he has an action for proving the tenor of a discharge of 2,000 merks granted by the deceased James Johnston, writer to the signet, to the deceased William Kerr, factor for the estate of Kincavil, which has now depended before the high and honourable court of parliament these two sessions, the pursuer should not trouble his grace and their lordships with his reason of intending this process before the parliament, namely that the loss of this discharge happened through the pursuer's being necessitated to fly in the year 1681 whereby his papers were exposed to search upon search and to great confusion, against which trouble and the cause of it being restored by the parliament in 1690, with an assurance of full reparation of losses, he thought it most proper first to table his action before the parliament. But first and last having no purpose to decline the lords of session and being, likewise, in this session of parliament as he was in the last, hindered by a heavy fit of the gout to prosecute this action in parliament, which prosecution would only be for the obtaining of the remit desired by the said petition and for no other purpose, he being fully satisfied that the lords of session are the most proper judges in all such matters and, therefore, craving his grace and their lordships to remit the said action to the said lords of session to be by them examined and finally determined with a parliamentary power, it being necessary for the pursuer to preserve the dependence, as the said petition bears. Her majesty's high commissioner and the said estates of parliament, having this day fully considered the said petition and being therewith well and ripely advised, they remitted and hereby remit the petitioner's case to the lords of session to be by them examined and determined summarily without abiding the course of the roll.
[1704/7/126]*[print] [email] [cite] [preceding] [following]
Petition of Colonel Scipio Hill craving payment of arrears due to him, read and his case remitted to the commission to be determined by them with that favour and dispatch which his pains and charge in coming twice to Scotland on that affair, and his necessary residence in England, does justly require, which remit is as follows.
Her majesty's high commissioner and the estates of parliament, having heard the petition of Lieutenant Colonel Scipio Hill, humbly showing to them that there is due to him eleven months' clearings and a half, namely from 1 January 1697 to 15 December 1697 as lieutenant colonel and captain of Sir William Douglas's regiment of foot, being £115 15s sterling as appeared by a copy of a declaration produced, with the said petition, under the hand of Captain Charles Douglas, son to the said Sir William, then agent to the said regiment there, is also due to the said lieutenant colonel £351 19s 3d sterling, being his half pay as lieutenant colonel and captain of dragoons from 15 December 1697 to 1 July 1701, as appeared by a copy of his late majesty's letter and an account drawn out of the treasury books produced also with the said petition. And whereas the petitioner has come twice from London, his place of abode, to Scotland on purpose to have got payment of the above sums which put him to vast expenses, yet hitherto he has not got any part of it, and, therefore, craving his grace and the honourable estates of parliament to grant warrant upon Sir William Menzies [of Gladstains] for payment of the above sums, being in all £467 14s 3d sterling, as the said petition bears. And her majesty's commissioner and the said estates of parliament, having considered the said petition and being therewith well and ripely advised, they recommended and hereby recommend the petitioner's case to the commission for public accounts, to be determined by them with that favour and dispatch which his pains and charge in coming twice to Scotland on the affair and his necessary residence in England does justly require.
[1704/7/127]*[print] [email] [cite] [preceding] [following]
Petition of Sir William Menzies [of Gladstains] craving to be exonerated of his tack and tack duty upon payment of the £5,000 sterling, discerned by the parliament to be paid at Martinmas [11 November] and Candlemas [2 February] next, read and [William Kerr], marquis of Lothian and the officers of the army allowed to see and answer the same the first sederunt after tomorrow and, in the meantime, remit to the commission the scrutiny of his account.
Proposal of Doctor Chamberlain and James [...] Armourer† anent a land credit, remitted to the commission and to report.
[1704/7/128]*[print] [email] [cite] [preceding] [following]
Petition of [William Hamilton], lord Bargany craving a decreet of the commission of parliament anent the poll, with the answers thereto by the tacksmen of the poll, read and remitted to the lords of session to determine the cause summarily, with a parliamentary power and, in the meantime, suspend execution as follows.
Anent the petition given in and presented to his grace her majesty's high commissioner and the right honourable the estates of parliament by William [Hamilton], lord Bargany, showing that where there was an alleged decreet pronounced against the petitioner as cautioner for David Crawford of Drumsuy to make payment of £210 17s 6d sterling as the said David's proportion of £4,639 4s 8d and two third parts of a penny sterling, upon which decreet the petitioner is threatened to be apprehended by virtue of a warrant specially granted against him, he is under a necessity to submit himself to the high court of parliament for redress because this pretended decreet was pronounced by a commission granted in the ninth session of King William's parliament to members of the said parliament, and which did expire with it, and the said commissioners having a parliamentary power, there can be no application made to any other court for redress. He does, therefore, with all dutiful respect to the members of the commission, humbly contend that he cannot be liable for the reasons following. Firstly, by the foresaid sixteenth act, parliament 1701 the said commissioners were empowered to proceed and determine, with a parliamentary power, the differences between the old and new tacksmen in relation to the poll of 1693, and to decide the question in relation to the vintuples† wherein the old tacksmen may be found liable for their concealments, and to apply what sums should be found resting towards the clearing of the arrears of the officers according to their claims. But the decreet alleged obtained against the petitioner narrates mutual processes before the said commission as if they had been empowered to determine anent the poll of 1693 between the tacksmen of the said poll and their cautioners on the one part, and the officers of the army for whose payment the poll was imposed on the other part, whereby it is evident that there were greater powers ascribed to the commission than were contained in the act of parliament, for by the act and commission of parliament they were only empowered to act as judges between the old and new tacksmen of the poll. As for what concerned the officers, the commissioners were only to apply what should be found resting in the same manner as if they had the power of the treasury as to that particular effect and, therefore, the decreet proceeding upon processes at the instance of the officers and not at all as to the dependencies between the old and new tacksmen of the poll is null. And in the next place, the foresaid alleged decreet ascribes to the commissioners a power to determine between the partners and cautioners, whereas there is not a word of cautioners in the act of parliament, and so it is that the petitioner is discerned as cautioner and consequently the decreet in that respect is null. And it is to be especially noticed that this commission is extraordinary and is of strict interpretation being contrary to the usual rules of law. But that wherein materially the petitioner is harmed and expects redress, is that Drumsuy for whom he only interceded as cautioner was not bound in the tack nor for the tack duty, but was bound to relieve the principal tacksmen of a twenty-second part of their hazard, and the petitioner became cautioner as in an oblidgement to private parties. Now if the principal tacksmen had pursued Drumsuy or the petitioner for the relief of the sentence pronounced by the commission against them, they would have defended themselves unanswerably that they are only discerned for the balance of the money collected in their own hands, for which Drumsuy could not be liable because, before the poll fell due or the collection made, Drumsuy was bankrupt and fled and never intromitted with a shilling. The petitioner shall not trouble the parliament further to represent that this decreet has neither libel nor because which even in decreets of parliament uses to be observed, for its conceived that, although the petitioner mentions certain informalities to remove the force of the said decreet as to himself, yet the special circumstances of the petitioner's case does merit a remedy, for the other partners discerned by the commission were the administering and collecting partners and have or ought to have the very money in their hands for which the decreet proceeds and, therefore, they ought to make the same forthcoming and Drumsuy and the petitioner ought to be free. And, therefore, craving his grace and the honourable estates of parliament, in consideration of the specialities of the petitioner's case namely, that before ever the collection of the poll began Drumsuy became bankrupt and fled and never intromitted with a farthing, and that the decreet of the commission is expressly founded upon the collection, to suspend the foresaid decreet as to Drumsuy and the petitioner unconditionally, as the said petition bears. Which petition and desire thereof, being read in the presence of her majesty's high commissioner and the said estates of parliament and having heard and considered the same they, by their deliverance thereon 19 August instant, ordained Sir John Cochrane to see and answer the same against the then next diet of parliament, but declared the same did not suspend execution. Accordingly the said Sir John Cochrane and the other tacksmen of the poll of 1693, and their partners and officers of the army, having seen the foresaid petition, returned it with the answers following to the same petition given in by the said William, lord Bargany, whereby he craved that the decreet of the commission granted in the ninth session of King William's parliament having power to decide and determine all controversies of the said poll both in relation to the partners themselves, and as to the preferences between the country and the army may be suspended unconditionally against him, he being discerned as cautioner for Drumsuy for £210 sterling money, as the hazard and damage which did arise from the said tack of the poll. His lordship insists upon several pretended nullities in the said decreet and more especially he alleges that the decerniture against him and Drumsuy is for the balance of the money collected in their own hands for which Drumsuy could not be liable, having become bankrupt before the poll either fell due or the collection made, which, with all humble submission to the members of this honourable court of parliament, they conceived to be most irrelevant and never precedented that a petition of this nature should take from them and the officers of the army their just right already established by virtue of a decreet of the foresaid commission, it not being unknown to his grace and the honourable members that there is a prescribed rule in law for redress if any party be harmed namely, an appeal for remedy of law to the parliament, so that, if parties were allowed summarily by petitions to quarrel sentences of parliament, there should be a confusion in all parliamentary processes. But secondly, his allegation is most fallacious in so far as that Drumsuy was many years habit and repute most sufficient after the poll of 1693 became indue, being concerned in the public cess and excise of the shire of Ayr in the year 1695, for whom the Lord Bargany was cautioner, and Drumsuy is no further discerned than any other of the co-partners who did not collect more than he, so that this being already a thing given in judgment as well among the partners as between his lordship and the officers by a commission having a parliamentary power, it was, therefore, humbly expected the said tacksmen, their partners and the officers of the army, being so well founded in law and reason, that his grace and the honourable members of parliament would never allow such a precedent, as the said answers also bear. Which petition and desire thereof, with the answers made thereto, being this day again read in the presence of her majesty's high commissioner and the said estates of parliament, and they having heard and considered the same and being therewith well and ripely advised, they remitted and hereby remit to the lords of council and session to determine the said cause summarily with a parliamentary power and in the meantime suspended and hereby suspends execution. Extract.
[1704/7/129]*[print] [email] [cite] [preceding] [following]
The account of the poll-money the year 1695 read, whereof, and of the observations thereon made by the said commission of parliament, the tenors follow.
This poll was granted by the parliament of 1695 for providing ships of war and maintaining seamen for defence of the coasts with a complete number of land forces. After this poll had been in collection for a year the lords of the treasury set the same in tack to John Campbell of Knockrioch, principal tacksman, and to Hugh Cunningham and others, his partners, for the sum of £276,000 Scots.
| Charge of the poll of 1695 | £ | s | d |
| Per tack duty of the poll, £276,000 | £276,000 | - | - |
| Balance due to the tacksmen and partners, £16,380 | 16,380 | - | - |
| Total | £292,380 | - | - |
| Discharge of the poll of 1695 | |||
| 1. By cash given in to the admiralty, £237,120 | £237,120 | - | - |
| 2. By seven per cent allowed to Sir James Oswald for collecting £175,200 | 12,264 | - | - |
| 3. By the embezzlements of collectors, £16,596 | 16,596 | - | - |
| 4. By the quadruples of the poll of the army, £17,760 | 17,760 | - | - |
| 5. By the poll of the episcopal clergy, £6,000 | 6,000 | - | - |
| 6. By allowance to collectors, £2,400 | 2,400 | - | - |
| 7. By loss of money cried down, £240 | 240 | - | - |
| Total | £292,380 | - | - |
[1704/7/130]*[print] [email] [cite] [preceding] [following]
Observations on the poll of 1695
1. That the third article, namely the embezzlements of collectors, is not instructed and, supposing it were, yet the commission are of opinion the tacksman and his partners were bound to the public for the whole tack duty though the whole collections had been embezzled.
2. That the quadruples of the army should not be allowed since their pay was in the hands of the commissaries and since the treasury must be considered as the common debtor.
3. That there should be no allowance for the poll of the episcopal clergy unless their number were instructed, considering that none but the episcopal ministers in Edinburgh were excepted, all other ministers being liable in their poll as gentlemen.
4. The £2,400 mentioned in the sixth article of the discharge was not instructed except only the sum of £300.
5. That this poll having been for a long time under collection has occasioned a considerable loss in the same.
6. That whereas the tacksmen pretend to a balance of £16,380, as is mentioned in the charge, they will be indebted to the public in £26,376 until the foresaid observations be cleared, which would appear more clearly by the minutes of the commission of 11 February 1704 and by the minutes of their committee of 17 December 1703 and those of 11 January 1704.
Upon reading whereof, the first observation sustained, the tacksmen instructing the verity of the embezzlement before the commission. As to the second observation, after hearing the tacksmens' lawyers and debate thereon, it was put to the vote, allow the quadruples of the army as an article of the discharge, yes or no, and carried in the affirmative, and remitted to the commission to state the extent thereof. The third observation, remitted to be instructed before the commission otherwise not to be allowed. The fourth observation read and the allowance mentioned therein was refused.
[1704/7/131]*[print] [email] [cite] [preceding] [following]
Account of the poll-money of 1698 read, whereof, and of the observations thereon made by the commission of parliament, the tenor follows.
Two polls were granted by the parliament of 1698 for clearing the arrears due to the land and sea officers, as likewise to the seamen belonging to the ships of war, with preference to those to whom any clothing money was due before 1691.
The said two polls were set in tack by the lords of treasury and exchequer to William Cochrane of Ferguslie and his cautioners for a tack duty of £241,200.
| Charge of the poll of 1698 | £ | s | d |
| Per the tack duty, £241,200 | £241,200 | - | - |
| Discharge | |||
| 1. Per payments made upon precepts from the treasury, £193,522 16s | £193,522 | 16 | - |
| 2. Per payments made to the seamen in part payment of their arrears, £9,600 | 9,600 | - | - |
| 3. Balance due by Ferguslie, £38,077 4s | 38,077 | 4 | - |
| Total | £241,200 | - | - |
[1704/7/132]*[print] [email] [cite] [preceding] [following]
Observations on the account of the poll of 1698
1. That the first article was fully instructed and applied to the ends and uses for which the said polls were granted, but no preference given upon account of the clothing money.
2. That though Ferguslie does discharge himself of the sum of £9,600 paid to seamen, yet, by examining his accounts, the commission finds not above £7,200 had been paid to them, which he, being questioned upon, acknowledged that because he had obliged himself to pay up the remainder, he had inserted that article in his discharge.
3. That several complaints were made upon Ferguslie by the seamen as having obliged many of them to grant receipts for the whole of their arrears, whereas they received but the half.
4. That the balance of Ferguslie's account, namely £38,077 4s is still resting by him, but in order to his exoneration there was a memorial given in by him now in the hands of the clerk of the commission wherein he represents his grievances and the reasons of his deficiency.
[1704/7/133]*[print] [email] [cite] [preceding] [following]
Upon reading of which account and observations, ordered that the commission take trial of undue transactions made by the tacksmen, collectors or any persons concerned in the public funds with the country or officers of the army, and report next session of parliament.
The second observation not allowed unless he instruct payment before the commission, and the third observation remitted to the commission to inquire thereupon.
[1704/7/134]*[print] [email] [cite] [preceding] [following]
Petition of Colonel George MacGill, representing that William Cochrane of Ferguslie, tacksman of the poll of 1698, had extorted from him a defalcation of £812 sterling, as the twenty-fifth and eighth parts of a sum contained in a precept drawn by the lords of treasury for payment of clothing money and arrears, read, with other complaints of defalcations extorted from the seamen and others of money due to them by the public, and several abuses committed by him and his sub-collectors in collecting and giving out the said poll.
[1704/7/135]*[print] [email] [cite] [preceding] [following]
Ordered that the said William Cochrane be carried to prison until he find bail under the penalty of £12,000 Scots to compear to answer the complaints given or to be given in against him, and the further consideration of this affair continued until the next diet of parliament.
The lord chancellor, by order of the lord high commissioner, adjourned the parliament until tomorrow at 10 o'clock.