[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.