[1705/6/68]*[print] [email] [cite] [preceding] [following]
Prayers said. Rolls called.
Minutes of the last sederunt read.
Petition for John [Lindsay], earl of Crawford against Sir William Menzies [of Gladstains], craving the same execution against Sir William's cautioners as against the said Sir William, read. Answers to the said petition also read, and the parliament, having considered the petition with the answers and the report of the commission for public accounts relating to the said petition, recommended to the lords of treasury to assign to the petitioner the said Sir William Menzies's tack and all execution that may be competent thereon, which recommendation is as follows.
Her majesty's high commissioner and the estates of parliament, having heard the petition of John, earl of Crawford, humbly showing to them that the petitioner having represented the hardships he lies under through his being engaged for the clothing money of the regiment lately under his command, the last session of parliament he obtained a deliverance ordaining Sir William Menzies of Gladstains, in the first end of the sums due by him, to pay the petitioner what he was engaged in for clothing as the petitioner should instruct before the lords of treasury or committee of parliament. Upon the petitioner's application and perusal of his instructions, the right honourable the lords of treasury were pleased to find thirteen months' clothing due to his regiment at disbanding and that the same extended to £2,896 16s 8d sterling. This decreet of parliament and report of the treasury, being upon the petitioner's application again reviewed by the committee of parliament, they adhered to the same, and the committee, having called for the contracts and other engagements upon the petitioner, and stated the same, they found that the sums of money in his respective engagements amounted to no less than the above-written sum of £2,896 16s 8d sterling and, therefore, the committee by their decreet on 11 June last discerned and ordained the said Sir William Menzies to pay the petitioner the foresaid sum, and ordained horning and all other executorials to be directed on the same. The petitioner does with all gratitude acknowledge the just proceedings of the right honourable the estates and committee of parliament and lords of treasury in this matter, but still he must beg leave to represent to his grace and this present parliament that what he has hitherto obtained has proven ineffectual. He does with all submission presume that it was the good meaning and design of the parliament that he should† have the same security for the money due by Sir William Menzies and the same execution that was originally competent for recovering it, whereas, to the petitioner's great loss, Sir William Menzies's cautioners are not discerned to pay, nor is the petitioner allowed to quarter until payment be made so that Sir William Menzies, by absconding, not only frustrates the petitioner's payment, but so far irritates those to whom the petitioner stands engaged that he at present suffers by their diligence hardships that he is ashamed to lay before this honourable judicatory and, therefore, craving his grace and the right honourable the estates of parliament to allow the petitioner the same security and execution for the said sum of £2,896 16s 8d sterling that was competent by the original tack and, thereupon, to discern the cautioners as well as Sir William Menzies to pay the same and, in case of delay, that the petitioner may be allowed quartering as well as other legal diligence, as the said petition bears. Which being upon the 22 August instant considered by her majesty's high commissioner and the said estates of parliament, they ordained Sir William Menzies and his cautioners to see and answer against the second sederunt of the then next week, with certification, and accordingly they, having heard the answers to the said petition given in for Alexander Menzies of Culterallers, mentioning that the said earl represents that he, having applied to the parliament in the former session thereof, showing the difficulty he was under for his engagements on the account of the clothing his regiment, the estates did ordain Sir William Menzies to pay to him out of the first of the sums due by him what his lordship was engaged in for clothing, accordingly as he should instruct the same before the lords of treasury or commission of parliament. As also, that upon perusal of his instructions, the said lords of treasury have found thirteen months' clothing due to his regiment which in money extends to £2,896 16s 8d sterling and, moreover, that the committee of parliament, having reviewed the decreet of parliament and report of the said lords of treasury, with the contracts etc. wherein his lordship was bound, that they found the sum due to his lordship did extend to the sum of £2,896 16s 8d sterling foresaid and, in prosecution thereof, ordered Sir William Menzies to pay the foresaid sum to his lordship. And that notwithstanding thereof, Sir William Menzies shuns all manner of payment and his cautioners are not discerned against and, therefore, craves that his grace and estates of parliament would find the cautioners in the same case as Sir William Menzies, the principal tacksman, and to discern them to pay the sum to his lordship and, in case of delay, that he may be allowed quartering as well against the cautioners as against Sir William, and all other diligence that was competent by the original tack.
This petition being, by his grace and the estates of parliament, ordained to be seen and answered by Sir William Menzies and his cautioners, it is answered for Culterallers, one of the cautioners bound in the tack, that by the laws of the kingdom there are fixed forms of procedure as well in relation to processes intended before the high court of parliament as before other judicatures, wherein the citation of parties and several other solemnities are requisite and Culterallers, not being so summoned, he does humbly contend that he is not obliged to answer in this state. Secondly, whatever may be pretended against Sir William Menzies who compeared last session of parliament and so subjected himself, though not cited, yet he is only one of the principal tacksmen and Alexander Wood, the other is dead, and neither he nor any representing him called or discussed, so that Culterallers, who is only one of two cautioners, and neither the said Alexander Wood nor the other cautioner called, he ought at least to have all the legal stays in proceedings allowed to him and which, being allowed, he will be able to offer such unquestionable grounds as will liberate him of any oblidgement in the tack and, therefore, the desire of the petition ought to be refused until he be legally cited and his defences heard and considered in common form as the said answers also bear.
And her majesty's high commissioner and the said estates of parliament, having this day fully considered the foresaid petition with the answers above-mentioned given in by Culterallers, they recommended and hereby recommend to the lords of treasury to assign to the petitioner the tack duty and tack itself against Sir William Menzies and others thereby bound for payment of his debt, with quartering and all other diligence competent to the treasury for making the same effectual.
[1705/6/69]*[print] [email] [cite] [preceding] [following]
Petition for Alexander Campbell of Finnab craving that he may not be prejudged of the £2,400 allowed him last session of parliament by any preference granted this session, and that he may have the same execution against Sir William and his cautioners as is craved in the former petition; and the same likewise remitted to the lords of treasury to assign to the petitioner Sir William Menzies [of Gladstains's] tack, with all action that may be competent thereon for the said £2,400, in manner at length following.
Her majesty's high commissioner and the estates of parliament, having heard the petition of Colonel Alexander Campbell of Finnab, humbly showing to them that last session of parliament Sir William Menzies was appointed to pay the petitioner £200 sterling out of the first and readiest of the £5,000 sterling which he was discerned in as a part of the tack duty due by him out of the inland excise for which, upon the petitioner's application to the committee of parliament, he obtained also their decreet discerning Sir William to pay to him the said sum, which has hitherto proven ineffectual, because such diligence by quartering etc. and otherwise was not then discerned to pass against his cautioners as against himself. And therefore, craving his grace and the honourable estates to grant the petitioner such a deliverance on his said petition for his payment in the first place as is ordained in favour of [John Lindsay], earl of Crawford for his payment of what is discerned to him out of the said fund against the said Sir William and his cautioners, and to ordain such diligence to the petitioner as is granted to him by the deliverance on his petition presented by him this day for payment of the foresaid sum due to him, as the said petition bears. And her majesty's high commissioner and the said estates of parliament, having this day fully considered the foresaid petition and being therewith well and ripely advised, they recommended and hereby recommend to the lords of treasury to assign to the petitioner the tack duty and tack itself against Sir William Menzies and others thereby bound for payment of his debt above-mentioned, with quartering and all other diligence competent to the treasury for making the same effectual.
[1705/6/70]*[print] [email] [cite] [preceding] [following]
Petition for [John Murray], duke of Atholl against the said Sir William Menzies [of Gladstains] read, craving to be relieved of several contracts for clothing to his late regiment wherein his grace stands engaged, and that the sums due by Sir William may be affected therewith, and the parliament, having considered the said petition, the desire thereof granted after Alexander Campbell of Finnab and [John Lindsay], lord Crawford their payments, as follows.
Her majesty's high commissioner and the estates of parliament, having heard the petition of John, duke of Atholl, humbly showing to them that he entered into several contracts of clothing with Sir William Menzies and his partners for clothes to his regiment, all which contracts Sir William still retains in his own hands because of a balance of £804 3s 6d sterling yet resting to them, and Sir William Menzies, being considerably indebted to the public, craving therefore, his grace and the honourable estates of parliament to order Sir William Menzies to give up and discharge the several contracts whereby the petitioner stands bound to him, and allow him to retain the £804 3s 6d sterling in his own hands, which will be in part payment to the petitioner of a much more considerable sum of arrears due to him for which arrears no doubt this honourable house will appoint suitable funds, as the said petition bears. Which her majesty's high commissioner and the estates of parliament, having considered on 22 August instant, they ordained Sir William Menzies to see and answer against the second sederunt of the then next week, with certification, and her majesty's said commissioner and the estates of parliament, having this day again fully considered the said petition and being therewith well and ripely advised, they ordained and hereby ordain the above Sir William Menzies to give up and discharge the foresaid contracts wherein the petitioner stands bound, and for that end allowed and hereby allow Sir William and his partners to retain the above-mentioned £804 3s 6d as the balance resting of the foresaid contracts in their own hands for payment of the foresaid sum due to them by the petitioner. Extract.
[1705/6/71]*[print] [email] [cite] [preceding] [following]
Petition for [William Kerr], marquis of Lothian read, craving relief from the parliament of the clothing money of his late independent troop and regiment of dragoons now commanded by him, and that Sir William Menzies [of Gladstains's] fund might be affected therewith, and the parliament, having considered the same, the desire of the petition granted in so far as the said fund shall not be exhausted by the former preferences, and recommended to the lords of treasury to assign the said act† and all execution that may be competent thereon for the ends contained in the said petition, as at length here follows.
Her majesty's high commissioner and the estates of parliament, having heard the petition of William, marquis of Lothian and the officers of the regiment of dragoons under his command, humbly showing that there is due to the petitioner as captain of an independent troop of horse from 1 November 1689 to 1 January 1691 the sum of £816 9s sterling, and as colonel of that regiment of dragoons, which was afterwards commanded by the Lord Forbes, from 1 February 1691 to 1 April 1697, the sum of £2,085 17s 2d sterling, and to him and the officers of the regiment of dragoons presently under his command from 15 March 1698, at which time they arrived in Scotland out of Flanders to 1 December 1700, the sum of £6,940 12s 9d sterling, and from 1 August 1704 to 1 September 1705 the sum of £2,600 12s 6d sterling, making in total the sum of £12,443 11s 5d sterling, of which a great part is clothing money and for which the petitioner stands personally bound. And therefore, craving his grace and the honourable estates of parliament to take into their serious consideration the case of the foresaid petitioner and officers in wanting so great a part of their pay for which they have so faithfully and honestly served, both at home and abroad, and in particular what hardships the marquis of Lothian suffers by standing personally bound and under diligence at law for most of the said clothing money which, without the protection and assistance of this honourable house, must inevitably tend to his great and irrecoverable loss and prejudice, and render him incapable to clothe his said regiment, and to order payment of the above balance, so long and so justly due, out of some effectual fund, and particularly out of what's due by Sir William Menzies of the tack duty of the inland excise, specially seeing it is out of what is due by him the petitioners should have been paid and ought now to be preferred thereto, as the said petition bears. And her majesty's said commissioner and the estates of parliament, having this day fully considered the said petition, after the preference to [Alexander Campbell of] Finnab, [John Lindsay], earl of Crawford and [John Murray], duke of Atholl, they recommended and hereby recommend to the lords of treasury to assign to the petitioner the tack duty and tack itself against Sir William Menzies, and others thereby bound, for payment of his debt with quartering and all other diligence competent to the treasury for making the same effectual, out of the surplus of the £5,000 sterling, after the said preferences. Extract.
[1705/6/72]*[print] [email] [cite] [preceding] [following]
Moved that the said preferences do not prejudge David Callander of the £600 allowed him the last session of parliament for his attendance upon the commission for public accounts, and the same agreed to.
Moved that Sir William Menzies [of Gladstains], his partners and the cautioners be discharged of their tack of excise and acquitted upon payment of the £60,000 wherein he was discerned last session of parliament at the terms of Martinmas [11 November] 1705 and Candlemas [2 February] 1706 by equal portions, under the penalty of £12,000 for each term's failure. And, after debate, it was put to the vote, absolve in the terms foresaid or not, and carried absolve, which is as follows.
[1705/6/73]*[print] [email] [cite] [preceding] [following]
Her majesty's high commissioner and the estates of parliament, having heard the petition or representation of Sir William Menzies of Gladstains, humbly showing to them that in August 1698 the petitioner, being unfortunately engaged in a tack of the inland excise to commence 1 March 1699, within a few days after the roup there was such an alteration of the season, through the excessive rains and winds, that several persons who had agreed to be partners with the petitioner did resile, which, being represented by him to the lords of treasury, they, to encourage him and the deceased Alexander Wood to sign the tack, did accept such caution as they offered. After the tack was signed the petitioner, both before its commencement and also during its first year, did, by reiterated applications, represented to the lords of treasury that much of the corns were not cut down, and the greatest part of what was cut was utterly insufficient, as was known to all the nation, of which the lords of treasury were so sensible that by the late king's allowance they granted them a considerable supersedere for a great part of the tack duty. Likewise, the petitioner and his partner did before March 1700 freely and ingenuously represent to the lords of treasury that, to continue them in the tack, would be a certain loss to the government, seeing the fund itself and the whole private stocks of them and their cautioners would not make up the tack duty, and therefore, craved that, seeing famine had happened, which by the quality of the tack did make it void, their lordships would liberate them thereof and dispose upon the tack at their pleasure. Whereupon, after remitting the affair to a committee and a most strict inquiry and examination made of the state of the country, the lords of treasury and exchequer, after having obtained the late king's warrant and upon mature deliberation, did supersede them £15,000 of their tack duty, they paying up the remaining £25,000, and further the second year appointed them to collect and uplift by virtue of their tack they finding surety (as they did) for their intromission that year. And so, with great care, pains and expense, they got the most part of the country subset in tacks and for the treasury's security did deliver these subtacks to Robert Rutherford, who got payment thereof accordingly. And yet, over and above all that the petitioner and his partners received these two years, they were necessitated to pay £2,000 sterling out of their own stocks more than the whole fund of the excise did afford. In January 1701 the estates of parliament were so fully satisfied that the fund of excise would not afford payment of the tack duty that they did order the rouping thereof anew and with much difficulty did get the same set at £30,000 sterling per year though there was then a great alteration of the seasons and the victual became much more plentiful than it had been in any of the† preceding years. In 1703 the parliament, having appointed inquiry to be made anent the public funds and causes of the deficiency thereof, those commissioned did in 1704 make report that there was £29,000 sterling deficient of the tack duty of the inland excise between March 1699 and March 1701, which obliged the petitioner (Alexander Wood his partner being then dead) to lay the case before her majesty's commissioner and the estates of parliament by petition. And, being conscious to himself that he had managed the affair with the greatest exactness and caution that was possible for bringing in the fund and, likewise, presuming that the qualifications of famine in the land these two years were so well known that they needed little proof, he did subject himself to a vote of parliament without demanding his procurators to be heard upon the relevancy of these qualifications, and by the vote the parliament did find the tack a standing tack for these two years. But in regard of the petitioners having given in an account of his intromissions with the fund of these two years, they did appoint a scrutiny to be made by a commission of parliament anent the verity of the accounts so given in to be reported this session of parliament, and in the meantime ordained the petitioner to pay £5,000 sterling, whereof the one half at Martinmas [11 November] and the other half at Candlemas [2 February] last bypast. With this vote and judgement, the petitioner being greatly surprised whilst in hurry and confusion of mind thereupon, though he then was and still is satisfied that the account of his intromissions which he had offered to the honourable house, and whereby it was evident that he had paid £2,000 sterling more than the fund had afforded, was and is exact, yet he would have done more by far than was in his power if his partners would have concurred, so that his grace and honourable estates may plainly perceive why it is that the foresaid judgement against the petitioner is not obtempered, his said partners and their representatives having refused to advance one farthing upon pretence that they were neither called nor discerned against, and that if they had been called they would have pleaded upon their legal grounds upon which they presume they would have obtained exoneration. This disappointment from the petitioner's partners does again oblige him in all humility to lay his case before the honourable house and humbly to represent, firstly, that the petitioner by himself and others in his name have frequently attended the commission of parliament appointed for making the foresaid scrutiny in order to clear any seeming difficulties that arose to them thereupon, and does presume that their report is ready and that thereby the ingenuity of the account presented by the petitioner to the estates will appear, notwithstanding of all the suggestions and aspersions put upon him thereon. Secondly, that it seems most reasonable that his partners and their representatives should be brought on an equal foot with him as to any payments beyond what the fund has afforded, and in order thereto that they should be discussed before this honourable house the petitioner, having caused cite them for that effect. Thirdly, that through his partners refusing to concur to make up their parts of the £5,000 sterling, and he not being able to do it by himself, he has been necessitated ever since Martinmas last to abandon his native country to the great prejudice if not utter ruin of himself and family. And therefore, craving his grace and their lordships to take his case into their serious consideration, and in order thereto to prefix a diet for receiving from the foresaid commission the report of the above-mentioned scrutiny, whereby it is hoped his faithful and diligent care in the management, indeed and his ingenuity as to his intromissions conforming to the account which he presented in parliament, will be vindicated and by which he is already £2,000 sterling in advance. And that if his grace and the honourable estates do think fit to appoint him to pay or lose any further than what he has already advanced, it will plainly appear to proceed from the calamitous circumstances the nation then groaned under, and could not possibly be raised out of the fund. Secondly, that his grace and their lordships will be pleased at one and the same time with advising the report to receive in and hear the petitioner's process against partners, that so whether the decision be for or against the petitioner they may be equal sharers therein. Thirdly, that in the interim his grace and their lordships may be pleased to allow a personal protection to the petitioner until the final decision that so he may attend thereupon, without the hazard of imprisonment, whereby it is hoped that he will thereby be enabled to subject those other partners as an additional security for obtempering any decreet of parliament to be pronounced after advising the foresaid scrutiny, as the said petition bears.
And her majesty's said commissioner and estates of parliament, having likewise heard that part of the report of the commission of parliament appointed for stating and examining the public accounts which relates to the said affair, bearing that it being remitted to them to consider whether or not the account given in by Sir William Menzies be a true account, they had made all the enquiry into this matter that possibly they could by taking the depositions of Sir William, his tacksmen and collectors, as to the extent of their tack duties and collections, as likewise, of the sums paid in by them to him. As also, they had examined them conforming to interrogators lying in the clerks' hands, particularly whether or not there were any double tacks, under-hand dealings, promises or gratifications made for concealments, and upon the whole matter they make the following observations. First, that Colin Alison, who was Sir William's subcollector and cashier for the town of Edinburgh and shire of Mid-Lothian, gives up in the account whereon he has declared upon oath an article of £28,000 Scots or thereby of dues in the said town and shire, which Sir William did not give up in his account given in last session of parliament, and the reason given by him, therefore, is that he looked upon the said list of dues as irrecoverable. But they found Sir William added by a docket to the said account the sum of £2,400 received by him before giving in thereof to the parliament, and that since that time he acknowledges himself to have received the sum of £1,900, and found that for the remainder of the said £28,000 Scots he has decreets against the brewers liable in payment thereof, which he produces for his exoneration. Secondly, that whereas he should have taken care to have set subtacks during the first year of his management, he on the contrary suffered the excise to be in collection, because it seems he could not bring it up to the extent of his tack duty with any advantage to himself. But it appeared plainly to the said commission that more could have been made thereof than the collections amounted to. Thirdly, that notwithstanding of the exact enquiry the commission made into this matter, yet they could not discover any double tacks, under-hand dealings, promises or gratifications for concealments. Fourthly, that the salaries given by him to his collectors and surveyors seemed to be a little exorbitant, amounting, in some shires, to near a fifth part of the whole collection. Fifthly, that he made subtacks during the second year of his management for lesser sums than he received the year before by collections, which the said commission of parliament judged to be ill management in respect that the second year of Sir William's tack was by far a year of greater plenty than the first. But as to all these the commission presumed to refer the parliament to a more full and particular account inserted in the minutes of their committee, dated 3 May last, to which is subjoined Sir William's answers, that this matter might appear more clear to the parliament when stated with all the advantages and disadvantages that the observations of the commission and Sir William's answers can suggest. The commission were obliged further to represent to the honourable house that, though by a vote their lordships declared Sir William Menzies's tack to be a standing tack and ordained him to pay in £5,000 sterling at Martinmas and Candlemas last by equal proportions, yet he has been so far from making any payments conforming to their order that he withdrew and went out of the kingdom near eight months ago. In the meantime though their lordships had not empowered the commission to do diligence against him yet, upon application made to the treasury, their lordships ordered his tack to be registered, together with horning and caption after the ordinary manner, as the said report also bears.
And also, her majesty's high commissioner and the said estates of parliament, having also heard the answers to the foresaid report made for Sir William Menzies, and particularly mentioned in his answers to a petition presented to them for the earl of Crawford against him and his cautioners, by which answers Sir William represented that he did, with all humility, take that occasion to vindicate his candour and ingenuity in the management of the foresaid excise the two years above-mentioned, and to clear that the account of his intromissions with the fund, as signed by him and given in to the parliament, was exact that so the insinuations made to the contrary may not be regarded, and in order thereto, his grace and the honourable estates, were entreated to take notice that the commission of parliament in the first paragraph of their report anent the said Sir William do say they had made all the enquiry into this matter that possibly they could by taking the depositions of Sir William, his tacksmen and collectors, as to the extent of their tack duty and collections, as likewise of the sums paid in by them to him. As also, they had examined them particularly whether or not there were any double tacks, under-hand dealings, promises or gratifications made for concealments, and the third observe in the report runs thus: that notwithstanding of the exact enquiry we made into this matter, yet we could not discover any double tack, under-hand dealings, promises or gratifications for concealments, from which it is plain that, since there is no under-hand dealing in the matter, the account given in by him is to be considered as true and exact.
Whereas from the first observation mentioned in the report in relation to the excise of Edinburgh it may appear to some as though the account given in by Sir William thereupon was not exact because, first, he makes no mention therein of £28,000 of dues given up by his subcollectors. Secondly, because he has received £2,400 more than is mentioned in his printed account and, likewise, that he has received £1,900 since last session of parliament, as also, that he has decreets against the brewers for the surplus, to this it was answered: firstly, Sir William in the printed account was not giving account of the whole surveys of the kingdom but only of his actual intromissions with any part of the fund, these surveys being still to be cleared by the particular books, all which he was ever ready to give upon oath; and the printed account was framed in the year 1703 in order to have been given at that time to the committee of parliament, but Sir William, having received about £200 sterling of the rests in and about Edinburgh after the printing of that list, and before presenting thereof to the parliament, he did most justly subjoin thereto the foresaid £200 sterling as received by him since then, and which is contained in the signed account of his intromissions presented to the parliament and still lying in the clerk's hands. Secondly, as a further evidence of Sir William's ingenuity in the matter since the judgement of parliament in the year 1704, he has received £1,946 Scots more of these dues, which he no sooner received than he owned the same to the committee of parliament, and is but a very small proportion of the £2,000 sterling already advanced, and in no way suitable to enable him to obtemper the other judgements of parliament. Thirdly, though the £28,000 of dues mentioned in Colin Alison's deposition, to which the report relates, appear considerable, yet it is not valuable if duly considered, for the same is stated according to surveys and decreets taken thereupon without regard to spilt brews, storted† or returned ale, the death or breaking of brewers. And it is not without difficulty that the foresaid £2,400 and £1,900 has been got out of these dues, and scarce any more can be expected that way.
The second observation in the report runs thus, that whereas he should have taken care to have set subtacks during the first year of his management he, on the contrary, suffered the excise to be in collection because he could not, it seems, bring it up to the extent of his tack duty with any advantage to himself. But it appears plainly to us that more could have been made thereof than the collections amounted to. Least Sir William's silence in this matter should be interpreted to import an acknowledgement of what is contained in that observe, that is that by setting the same in subtacks the first year he might have made more thereof than was done by collection, it is answered: firstly, by the third observe in the report already mentioned the commission owns that there is nothing of under-hand dealing discovered and why Sir William, without the least prospect of advantage to himself, should have endeavoured to disappoint the government of all that could be made of the fund is scarce conceivable, especially seeing, even at that time, it was well known to the whole kingdom that the fund could not make up much above the half of the tack duty, so that he behoved to be at the discretion of the government. Secondly, if there had been any error in that manner of management, it might as reasonably be imputed to the other tacksman against whom there is not yet any decreet of parliament. But thirdly, it is well known, and can be instantly instructed, that Sir William and Alexander Wood did cause print and publish advertisements through all the shires and at all the royal burghs of the kingdom inviting all to come in who inclined to take subtacks of the excise and that several months before the commencement of the tack, and though some persons, upon these advertisements, did come and treat with them for parcels thereof, yet none did offer to bring it the length of the collections, neither would they at all engage unless they had been secured in the tack at that rate for five years. So that the evidences which make it plain to the commission that more could have been made of it the first year than the collections amounted to are such as he neither knows nor can comprehend.
As to the fourth observe, bearing that in some places the salaries given by him to collectors and surveyors were exorbitant, it is answered that it is very well known his fault was not in being too liberal that way but in some shires, though the collections were small, yet the trouble of ingathering them was considerable by reason of the then circumstances of the country which obliged Sir William and partners to give the like allowance as formerly.
The fifth observe bears that in the second year, which was more plentiful than the first, Sir William granted subtacks for lesser sums than he had received the preceding year by collection. To this it is answered that the single instance hereof is only in the shire of Haddington, which was more auspicious the first year than any place of the kingdom, for albeit it had never at any time before paid above £1,000 per annum, yet that first year by collection it did afford £976, but in the second all that Sir William could make of it was £870, which he judged to be more reasonable than to depend upon the uncertainty of a collection.
In the close of the report it is represented that Sir William Menzies withdrew and did not make payment of the sum which he was appointed to pay, and whereupon diligence by appointment of the lords of treasury is gone out against him. To this it is answered that it was not contempt but absolute incapacity to obtemper that made him withdraw and which was occasioned through the representatives of his said partners refusing to concur or pay any part thereof, and whereby Sir William's credit was so impaired, that none would either lend to him or buy from him because of his circumstances with the parliament. From what it premised, it being evident that towards the reimbursing Sir William Menzies of the £2,000 sterling advanced by him before the year 1703 more than the fund had afforded, he has not at any time nor any in manner of way received any part thereof except the £200 sterling owned and acknowledged by him in the account signed and given in to the parliament in 1704, and £1,900 Scots which he has got payment of out of the desperate dues stated in Colin Alison's account since that time.
And therefore, by the foresaid answers, after answering the earl of Crawford's petition, he concluded hoping his grace and the honourable estates would bring the affair to a conclusion and determine at worst that upon payment of the several sums already allocated upon that fund he might be exonerated and have recourse against partners and their representatives for relief as appropriate, or at least that the exoneration might be full and the decision between him and partners might be remitted to be summarily decided by the lords of session with a parliamentary power, and in order thereto that the petition presented by Sir William and lying in the clerk's hands, with his process against partners, might be read and considered and receive interlocutor thereon, according to justice as the said answers also in themselves purport.
And her majesty's high commissioner and the estates of parliament foresaid, having this day fully considered the foresaid petition or representation with the above-mentioned report of the commission of parliament thereupon, and the answers above-written thereto, and being therewith well and ripely advised, they absolved and hereby absolve Sir William Menzies and partners upon payment of the £5,000 sterling by equal portions at Martinmas and Candlemas next, under the penalty of £1,000 sterling for each of the said terms failing, reserving to him his relief against partners and others liable in payment as appropriate. Extract.
[1705/6/74]*[print] [email] [cite] [preceding] [following]
Moved that Sir William and his cautioners assign what is unuplifted of the £28,000 of outstanding debts resting to him by brewers and others arising from the subject of the said excise and, after debate, it was put to the vote, assign or not, and carried in the negative, and it being then moved that, seeing they were not to assign, the brewers and others may be discharged, and being put to the vote discharge or not, it carried not.
Moved that Sir William Menzies's process against partners and their representatives may be remitted to the lords of session to be determined by them summarily without abiding the course of the roll, and the same agreed to, as follows.
[1705/6/75]*[print] [email] [cite] [preceding] [following]
Anent the summons and action raised and intended before the high court of parliament at the instance of Sir William Menzies of Gladstains against Archibald Dunbar of Thunderton, who was one of the partners in the tack of the excise after-mentioned, George Oswald, son and heir served and retoured to the deceased Sir James Oswald of Fingalton, his father, who was another of the said partners, at least behaving as heir to him and at least executor discerned and confirmed to him, at least vitious and universal intromitter, with his writs, evidence, goods and gear, at least lucrative successor to his father after making of the foresaid tack, at least who possessed the estate or effects whereof his father was in possession for the space of three years, and so liable conforming to the act of parliament, and otherwise representing him upon special passive titles to be insisted in, and also Jasper Wood, alias Johnston of Wariston, son and heir to the deceased Alexander Wood, brewer in Edinburgh, who was conjunct tacksman with the pursuer, and grandson and heir to the deceased Jasper Johnston of Wariston, who was cautioner for the said Alexander Wood, one of the tacksmen, and who became engaged at the desire and upon the account of the said Alexander Wood, as Alexander Menzies of Culterallers was upon the pursuer's account, and [...] Johnston, widow of the said Alexander Wood, and daughter to the said deceased Jasper Johnston, as executrix to her said father and husband, at least she and her said son as representing the said deceased Alexander Wood and Jasper Johnston upon the passive titles particularly and generally above-mentioned, and who or one or other of the said representatives received dispositions or other rights from the said defuncts of their lands, means and estate in their own, or their trustees' names for their behoof, and who also had of their means and estate sinistruously conveyed after the date of the foresaid tack. The said summons makes mention that where the pursuer being unfortunately engaged in a tack of the inland excise which did commence in the year 1699, the parliament, in the last session thereof, by a vote, did find the same a standing tack and appointed the pursuer to pay £5,000 sterling of the deficiency of the tack duty, albeit the pursuer did condescend and was ready to instruct that he had paid £2,000 sterling more than the fund had afforded and, likewise, did reserve to their own consideration what further they should think fit to enact, after a scrutiny to be made anent the quota of the pursuer's intromissions, and seeing several persons were engaged with him as partners in the said tack and so liable to relieve the pursuer proportionally and, that they were not convened nor discerned against in parliament, necessary it is that the said pursuer have decreet pronounced against them or the representatives of such as are deceased as particularly the representatives of the deceased Sir James Oswald and Alexander Wood and of Jasper Johnston, their cautioner. And that in order thereto, the pursuer is desirous to prosecute an action before the parliament that so they may be brought upon an equal footing with him as to the whole consequences of the said tack and, therefore, it was necessary for the said pursuer to have warrant for citing all his said partners and representatives of the deceased and their cautioners in manner underwritten, and anent the charge given to the before named defenders by two several macers of parliament in manner following, that is to the said Archibald Dunbar and George Oswald, personally apprehended, and to the said Jasper Wood, alias Johnston, and the said [...] Johnston, at their dwelling houses, to have compeared before the said high court of parliament or committee thereof to have been appointed for private affairs, at a certain day bygone, to have answered at the instance of the said pursuer and to have heard and seen them, for themselves and in the names set out above, discerned by decreet of parliament to relieve the pursuer proportionally in manner foresaid, as in the said summons and executions thereof is fully expressed. The said pursuer compearing through Mr John Menzies, advocate, his procurator, who for him produced, in the presence of the said high court of parliament, a tack by way of contract dated 7 September 1698 between the lords commissioners of his majesty's treasury, with advice and consent of the lords and other commissioners of exchequer for the time on the one part, and the said Sir William Menzies, then designed William Menzies, present bailie of Edinburgh and the said deceased Alexander Wood, thereby designed merchant there, on the other part, whereby the said lords commissioners of treasury, with advice foresaid, did set in tack to the said Sir William Menzies and Alexander Wood, their heirs or assignees, the excise of 3d Scots upon each pint of ale and beer brewed to be vended and sold in place of two merks formerly upon the boll of malt; and also, the excise of 3s Scots upon each pint of aquavitae or strong waters made of malt brewed and sold within this kingdom, to be paid by the retailers conforming to the acts of parliament and the other duties mentioned in the said tack, which was to continue and endure for five years after their entry thereto which is, by the said tack, declared to begin upon 1 March 1699 inclusive, reserving and declaring always, as it is thereby reserved and declared, for the which causes the said Sir William Menzies and Alexander Wood, as principals, and Alexander Menzies of Culterallers and Jasper Johnston of Wariston, now deceased, as cautioners for and with them, obliged themselves conjunctly and severally, their heirs, executors and successors, to have paid to the said lords commissioners of treasury and their successors in office, or to any other having power from them, the sum of £40,000 sterling by four quarterly payments each year, in manner more fully expressed in the said tack, with the sum of £1,500 sterling of liquidate penalty on each occasion in case of failure in non-thankful payment of each quarter's duty, and in addition to payment thereof, as the said tack of the date foresaid, containing therein† by the said tacksmen to relieve their cautioners above-named, with several other clauses inserted and registered in the books of exchequer upon 9 February 1699 more fully bears. And also, produced in the presence of the said high court of parliament a minute of agreement of 1 September 1698 between the said Sir William Menzies, the said deceased Sir James Oswald of Fingalton, the said Mr Archibald Dunbar of Thunderton and the said late Alexander Wood, on the one and other parts, whereby they bound and obliged them not only to bear a proportional burden of the tack duty of the said annexed excise of 3d upon the pint of ale and the excise of brandy and strong waters, conforming to the acts of parliament as the same was then set to the said Sir William Menzies, and of any disadvantage and loss that should happen, but likewise should either be bound and give sufficient security to the public for their respective proportions of the tack duty or otherwise in case any of the said partners should not be concerned in the security given to the public, then they should be bound and give security to the rest of the partners for their respective shares that they should be concerned in, as the said minute of agreement registered on 7 February 1699 in the books of exchequer also more fully bears. And the said Archibald Dunbar of Thunderton, George Oswald, Jasper Wood, alias Johnston, defenders, at the first calling of the said summons in the usual manner at the great gate of the parliament house, conforming to the act of parliament, compearing through Mr Francis Grant, advocate, their procurator and the said [...] Johnston, widow of the said Alexander Wood, compearing at the same time through Mr Alexander Ferguson of Isle, her procurator, the foresaid summons, executions thereof and writs produced for the pursuer were then ordained to be given out to the said Mr Francis Grant to see. And the same being accordingly given out by the said Mr John Menzies, the pursuer's procurator, they were seen and returned by the said Mr Francis Grant for Mistress Wood only, and the said summons and action, being this day again moved in the presence of her majesty's high commissioner and the estates of parliament, they remitted and do hereby remit the above-mentioned cause to be determined by the lords of session summarily without abiding the course of the roll. Extract.
[1705/6/76]*[print] [email] [cite] [preceding] [following]
Moved that the parliament take to consideration the report of the commission for public accounts in relation to [John Hamilton], lord Belhaven's tack of excise, and ordered that the same be under consideration at the next sederunt to be appointed for private business.
Moved that for expediting of business the lord chancellor appoint petitions to be read conforming to their order in the roll of private business, and the same agreed to.
[1705/6/77]*[print] [email] [cite] [preceding] [following]
Petition for Walter Lockhart of Kirkton moved, and a further stay of all execution against him for the sums contained in his petition granted.
Petition for [Frances Herbert], countess of Seaforth against [George MacKenzie], earl of Cromarty and Kenneth MacKenzie, again read and, after debate, the same remitted to the lords of session to be discussed by them summarily without abiding the course of the roll, which remit is as follows.
Her majesty's high commissioner and the estates of parliament, having heard the petition of Frances, countess dowager of Seaforth, humbly showing to them that her case being wholly extraordinary and such as requires a speedy remedy not to be obtained but by the justice and favour of the lord commissioner his grace and the estates of parliament, the petitioner must in all humility represent the same as follows.
She was married to the late [Kenneth MacKenzie], earl of Seaforth in the year [...], and by articles of marriage agreed, with the consent of all friends, there was to be settled upon her an annuity for her lifetime of £1,000 sterling yearly out of the estate of Seaforth. For performance of these articles and by the advice of the best lawyers in Scotland it was agreed that Isobel, countess dowager of Seaforth, mother to the said earl the petitioner's husband, and in whose person the right to the nine preferable apprisings of the estate of Seaforth was conveyed, should make the petitioner a settlement for the said £1,000 sterling jointure in the terms of the articles, and accordingly the said settlement was made wherein all these apprisings are mentioned with their conveyances in the person of the earl of Cromarty and other trustees, and from the said trustees to Mr Kenneth MacKenzie and from Mr Kenneth MacKenzie to the old countess, who thereupon conveys to the petitioner the foresaid annuity of £1,000 sterling of jointure and assigns her for that effect to the foresaid apprisings and infeftments thereon, and to the dispositions and procuratories granted by the apprisers and also by the said trustees. And upon the said dispositions and procuratories, the petitioner is infeft under the great seal, and her infeftment being thus expedited was sent to her friends in England as an undoubted and unquestionable security. But when it pleased God to remove the earl her husband by death in the year [1701], and when thereupon the petitioner expected to enter to the possession of her said jointure, she was refused and thereupon necessitated to send for her infeftments from England and to raise summons of poinding the ground and of mails and duties before the lords of session. And further, when she insisted in the said summons, [Roderick MacKenzie], lord Prestonhall compearing with an adjudication led against the old countess and the petitioner's foresaid husband as charged to enter heir, pretended her infeftment was one not having power, and that he had the only preferable right because the petitioner did not produce the foresaid apprisings and the conveyances thereof to the old countess the petitioner's author, whereupon her right and infeftment was founded, albeit it was manifest to all that these apprisings and conveyances being the great security of the fee of the estate could not be in the petitioner's hands who had only right to a liferent annuity, and for which she had all reason to repose an entire confidence in the old countess, her mother-in-law, and the other friends that they would preserve those apprisings and the conveyances thereof for the security of the fee, and also for her said liferent annuity. But the petitioner being thus disappointed and necessitated to take out diligences for recovering of the said apprisings and conveyances thereof, all that she obtained thereby was to get the Lord Cromarty's oath and deposition who testified fairly and honestly upon his foresaid trust and upon the conveyance, that he and the other trustees had made in favour of Kenneth MacKenzie; as also, to get Kenneth MacKenzie's oath and deposition how he was denuded in favour of the old countess, the pursuer's immediate author, but as for the old countess herself her oath and deposition availed the petitioner nothing since she disowned the having of these rights the petitioner wanted, whereupon she was necessitated to raise a new summons for making up the conveyances she wanted, either by obtaining the earl of Cromarty and the said Kenneth MacKenzie to renew their deeds that were wanting according to their foresaid depositions, otherwise to have the tenor thereof made up as the same was fully libelled in the summons raised for that effect. And in this summons the petitioner insisted with all diligence, but not being able to have the cause decided this last session she was left in an uncertainty that is but too obvious. She needs not tell his grace and their lordships what trouble and vast expense this affair has cost her, a stranger, now these [...] years bypast, and how that if it had not been first by the favour and equity of the lords of session and next by the justice and equity of the estates of parliament that she had got an aliment of £500 sterling yearly discerned to her during the dependence of her cause, she had been reduced to the greatest extremities. Also, even at present her necessities through bad payment are greater than she is willing to profess. But that which she must lay before his grace and their lordships, with all submission, is that they may observe by these circumstances that all her security depends upon the renewing of the foresaid deeds of conveyance by the Lord Cromarty and Kenneth MacKenzie, conforming to their oaths and declarations emitted thereupon, so that if they should come to die as all are mortal before the next winter session the petitioner must inevitably lose her jointure right forever, unless his grace and their lordships in whose power it only is do provide a remedy. And therefore, craving his grace and the honourable estates of parliament to take the matter to their consideration and since the petitioner has advanced her affair as much as possible before the lords of session, and that she is also hopeful that the Lord Cromarty is willing to renew his deed conforming to his oath and declaration emitted thereupon and that Kenneth MacKenzie will do the same, if authorised and ordained thereto by his grace and the honourable estates, to grant warrant to cite the said earl of Cromarty and Kenneth MacKenzie before his grace and the honourable estates for the effect foresaid, to prevent the irreparable hazard of their deaths, which his grace and the honourable estates of parliaments justice can only supply in the manner above-mentioned, according to justice, as the said petition bears.
Which being upon 8 August instant considered by her majesty's high commissioner and the said estates, they ordained the earl of Cromarty and the above-named Kenneth MacKenzie, and others concerned, to see and answer the same. And thereafter, on 22 August, they ordained the earl of Cromarty and the said Kenneth MacKenzie to see and answer against the second sederunt of the then next week, with certification, and this day her majesty's high commissioner and the said estates of parliament, having again considered the said petition and being therewith well and ripely advised, they remitted and do hereby remit to the lords of session to discuss the action above-mentioned summarily without abiding the course of the roll. Extract.
[1705/6/78]*[print] [email] [cite] [preceding] [following]
Ordered that the third sederunt next week be for private business.
Overture for an act in favour of a maiden hospital, read and a first reading marked thereon.
Petition for Patrick [Kinnaird], lord Kinnaird again read and the same delayed until the next sederunt for private business that the creditors may see and answer the said petition.
[1705/6/79]*[print] [email] [cite] [preceding] [following]
Moved that the process at Sir Walter Seaton's instance against Robert Malloch and others be now under consideration, and agreed that the same be considered the next sederunt for private business.
Then the lord chancellor, by order of her majesty's high commissioner, adjourned the parliament until tomorrow at 10 o'clock.