[1661/1/274]*[print] [email] [cite] [preceding] [following]
Anent the supplication presented to the estates of parliament by Sir Archibald Stirling of Garden, knight, against Sir James Melville of Halhill, knight, showing that the supplicant, having in the year of God 1648 been employed in his majesty's service as an officer under the command of William [Hamilton], then earl of Lanark, thereafter duke of Hamilton, he, conforming and in obedience to the laws and acts of parliament and to the command of his superior officer, having made his levy of a troop of horse within the locality appointed to him for that effect, thereafter the whole forces being disbanded, amongst the rest the supplicant's troop, the several soldiers under his command having retired peaceably to their own homes with their horses and arms, conforming to the capitulation made at Stirling, whereby assurance was given that none who were accessory to that service (providing they disbanded at the time thereby appointed) should be in any way challenged in their persons or estates for or in relation to their engagement therein, nevertheless the said Sir James Melville of Halhill, upon pretence of a pretended act of the committee of estates for the time, dated the very day after the subscribing of the capitulation, ordained the officers and soldiers, who had received any horses or money for horses for serving in the said Engagement, to restore the same to the owners thereof expressly contrary both to the act of parliament and articles of capitulation, having thereupon threatened the supplicant for redelivery or repayment of what he had received for advancing the said levy, he was, against all law and reason, necessitated to pay the particular sum after-mentioned to the persons underwritten, namely, to the said Sir James Melville the sum of 300 merks, conforming to his receipt dated 5 December 1648, which sum he was forced to pay at the time and in manner foresaid, most unjustly against the standing laws and articles of capitulation, which in justice ought to be refunded with the interest thereof since the repayment of the same by him and in time coming so long as the same shall not be paid to him, and therefore, craving that the said Sir James Melville might be decreed to repay to him the foresaid sum with the interest thereof bygone and in time coming, during the non-payment thereof, as at more length is contained in the said supplication. The said Sir Archibald Stirling, supplicant, compearing personally, who for proving the points of the said libel having produced and repeated the foresaid articles of capitulation and act of the said pretended committee of estates, produced also a missive letter written and subscribed by the said Sir James Melville directed to the supplicant, dated 16 April last, in answer to the citation given to him at the supplicant's instance, wherein he declared that he would not defend in this pursuit and thereby homologated the receipt of the money proclaiming poverty and begging pity, and referred the remaining points of the said libel not verified thereby to the said Sir James Melville, his oath of verity simply, who being lawfully summoned to this action, often called and not compearing, the rights, reasons and allegations of the said supplicant compearing, as said is, with the foresaid articles of capitulation and act of the said pretended committee of estates and missive letter foresaid, all of the dates, tenors and contents respectively above-written, with the holding of the said defender as confessed in manner after-mentioned, being all heard, seen and considered by the said estates of parliament and they therewith, being well and ripely advised, his majesty, with advice and consent of the said estates of parliament, decrees and ordains the said Sir James Melville, defender, to render, restore and make payment to the said Sir Archibald Stirling, supplicant, the foresaid sum of 300 merks principal, with the whole bygone annualrents thereof since the said Sir James Melville's receipt of the same, and also in time coming until his repayment thereof. Because the points of the said libel or petition, being found relevant by the commissioners of parliament appointed for bills, the same was admitted to the said supplicant's probation (after that the said defender was lawfully summoned by a messenger at arms, personally apprehended to have compeared and defended in the said matter) who for proving thereof, having produced and repeated the foresaid articles of capitulation and act of the committee of estates and missive letter foresaid, all of the dates, tenors and contents respectively above-written, referred the remaining points of the said libel not verified thereby to the said defender's oath of verity simply, and he being lawfully summoned, as said is, and often called and not compearing, he failed to compear to testify thereupon as was clearly understood to the said estates of parliament, in respect whereof and of the report of the said commissioners appointed for trade and bills given in the said matter, they held the said defender as confessed, and gave their decreet against him in manner above-written, and ordains letters etc.