[1703/5/70]¹

Legislation

Act for liberating and protecting Mr William Gordon of Balcomie, advocate

Anent the summons and action raised and pursued before her majesty's high commissioner and the estates of parliament at the instance of Mr William Gordon of Balcomie, advocate, against James Fairfoul, sometime of Kilduncan, now tenant in Newbigging, John Jollie, merchant in Edinburgh, Sir William Hope, late deputy governor of the castle of Edinburgh, Charles Menzies, writer to the signet, Sir Thomas Young of Rosebank, Thomas Learmonth, eldest lawful son to the deceased Mark Learmonth, advocate, Jean Hay, his mother, and John Hay of Alderstone, his tutors, Margaret MacGill, daughter to the late John MacGill, merchant in Edinburgh, and Alexander Swinton, bailie of Dysart, creditors to the said Mr William Gordon, mentioning that where the said Sir William Hope, late deputy governor of the castle of Edinburgh, having (as it is too well known), without ever being a creditor to the Lord Balcomie, the complainer's grandfather, or the complainer in a six pence or any disobligation given him, not only bought in from Mr James Balfour and Mr George Arnott, the complainer's trustees, the whole heritable rights that the complainer had pledged in their hands, by which, after the most barbarous and unheard of manner that ever was practised in a Christian country, the said Sir William Hope has ejected the complainer, his wife and family from their ancient inheritance, but finding that could be no sufficient security to him, he next bought in all the personal debts he could find out against the complainer, and albeit he had poinded the complainer's corns and other goods to the value of £5,000 Scots, although the total that ever was due to him did not amount to £2,000, thereafter incarcerated the complainer's person where he has remained these twenty four months past, of design to compel him to grant to Sir William Hope a voluntary disposition to his whole rights, that so being master thereof he might possess the entire estate for a very little thing and defraud all the others of his grandfather's lawful creditors. And albeit firstly, by Sir William's intromissions, with the whole effects of the complainer for these two years past, he is much more than satisfied and paid of all is due to him, either as come in place of the complainer's trustees or as assignee to any other of the complainer's creditors, as is evident by the process of account and reckoning concluded before the right honourable the earl of Lauderdale. Secondly, as to any other debts he can pretend right to the complainer did at Whitsunday [15 May] 1702 consign the sum of 42,300 merks, and did thereupon execute a declarator of redemption, upon which there was an act of account and reckoning extracted last session as the same bears. Thirdly, in the session of parliament of 1700 the complainer gave in a petition to the parliament for a warrant for a sale of the lands of Kilminnan,² mill thereof and teinds thereof, which the complainer was still willing that the price of the same should be applied for clearing of all his pretensions, if anything should be found due after the conclusion of the foresaid two processes,³ notwithstanding of all which he was still detained prisoner in the Canongate tolbooth and debarred from attending his affairs about the parliament house, to his great loss and hazard of his life, whereby he had already contracted very heavy and lethiferous diseases, as testimonials under skilful and experienced physicians' hands do bear. And the said complainer, having no other remedy under God now left but to apply to her majesty and her commissioner and estates of parliament for a liberation from the said tedious imprisonment, and for protection to his person for the future, as was granted in the like case to Sir David Cunningham of Robertland who, being incarcerated in the tolbooth of Ayr by his creditors, was, by order of the parliament of 1693, set at liberty, and upon citation of and granting a disposition to his creditors, until they were paid, protection was granted to him during life. Wherefore necessary it was for the complainer to have summons directed at his instance for citing the said Sir William Hope and his other creditors to hear and see the said protection granted and warrant for his liberation, upon a disposition of his estate in manner underwritten as was alleged, and anent the charge given to the said defenders in manner after-mentioned to have compeared before her majesty's said commissioner and the estates of parliament, at a certain day now bygone, to answer at the instance of the said pursuer in the action and cause libelled in the foresaid summons, and to have heard and seen protection granted by her majesty, with advice and consent of the estates of parliament, to the said Mr William Gordon, and him ordained to be set at liberty upon the above disposition of his estate, in the terms of the act of parliament anent protections, or else to have given in objections why the said protection should not pass, with certification if they failed protection would be granted in manner foresaid, as the said summons with the executions thereof in themselves more fully bears. The said Mr William Gordon, pursuer, compearing via Mr Francis Grant, advocate, his procurator, who produced in presence of her majesty's said commissioner and the said estates a disposition and assignation granted by the said Mr William Gordon on 7 June instant, whereby he made, constituted and ordained the said James Fairfoul, John Jollie, Charles Menzies, Sir William Hope, Sir Thomas Young, Thomas Learmonth, Jean and John Hay, Janet MacGill and Alexander Swinton his very lawful undoubted and irrevocable cessioners and assignees, in and to all debts, sums of money, goods and gear, outsight and insight plenishing, horse, nolt, sheep, corns, cattle, and other goods and gear whatsoever belonging to him in any manner of way, and specially not with the generality foresaid, in and to all right, title, interest he had or could pretend to a decreet and process of apprising led at the instance of the deceased Mr William Morton against the estate of Balcomie for the sum of 12,250 merks; and to a decreet and process of apprising led at the instance of the deceased Alexander Downie against the said estate for the sum of 2,000 merks of principal; and in and to an infeftment of annualrent equivalent to the principal sum of 1,600 merks due by the deceased Sir James Learmonth of Balcomie to Sir John Aytoun of that ilk; and in and to an infeftment of annualrent equivalent to the principal sum of 1,000 merks Scots money granted by the said Sir James Learmonth to Mr [...] Martin; and in and to an infeftment of annualrent equivalent to the principal sum of £1,000 Scots granted by the said Sir James Learmonth to [...] Gourlay of Kincraig; and in and to the sum of 500 merks contained in a bond granted by the said Sir James Learmonth to Alexander Black in Anstruther; and in and to the whole teinds, parsonage and vicarage, of the said lands of Balcomie and Kilminnan, and that in full payment and satisfaction to the forenamed persons and each one of them for their respective interests, until they are satisfied and paid of the sums of money, principal annualrents and expenses mentioned in the said disposition and assignation, as the same lying in the said process bears. And also produced a testimonial dated 2 March 1703, under the hand of Sir Patrick Maxwell and Alexander Hay, bearing that they did find the said Mr William Gordon to a great degree affected with scorbutic humours, the mass of the blood being spoiled, which did evidently appear after he had received some things proper for his cure, all which, in their judgement, has been occasioned by his long imprisonment, for it was their opinion that his disease, being grown to a great and dangerous degree, can hardly be cured without him going on to take such medicine from time to time as may put a stand to the growth of the distemper and truly proper for his cure, and have the liberty of the free air especially then in the springtime, without all which he must certainly be in great danger not only of health but of his life, being it is the nature of this disease still to grow more and more dangerous, as the said certificate also extant in process bears. And the said Sir William Hope, one of the said defenders compearing by Sir Walter Pringle, advocate, his procurator, and the remaining defenders above-named being lawfully summoned to this action, often called and not compearing, the foresaid summons and executions thereof and whole process with what was represented by either party in manner after-mentioned, being all at length heard, seen and considered by his grace her majesty's said commissioner and the foresaid estates of parliament, and they being therewith well and ripely advised, our sovereign lady the queen's majesty, with advice and consent of the estates of parliament, has ordained and hereby ordains the said Mr William Gordon, pursuer, to be set at liberty out of the tolbooth of the Canongate where he is prisoner, and for the future has granted and hereby grants to the said Mr William Gordon personal protection against all diligence for civil debts at the instance of his forenamed creditors called in this process, with this express quality that if ever hereafter the said Mr William Gordon, or any of his hounding out or with his approval, shall trouble, molest or disturb the said Sir William Hope or his tenants in their persons or in the peaceable possession of their houses and estate of Balcomie, otherwise than by order of law, he shall lose the benefit of the protection hereby granted in so far as concerns the said Sir William Hope. Because the said John Jollie, Sir William Hope, Charles Menzies, Sir Thomas Young, Thomas Learmonth and Jean Hay, being all lawfully summoned, personally apprehended by a messenger at arms, and the remaining other defenders being lawfully cited at their respective lodgings, dwelling houses and chambers to have compeared at a certain day now bygone, with continuation of days, before the said high commissioner and the said estates to have answered at the instance of the said pursuer in the foresaid action and cause libelled, with certification as said is, and none of the forenamed defenders compearing except the said Sir William Hope, the said Mr Francis Grant, at calling of the foresaid action and cause upon the day and date of this act, resumed his process for the pursuer and craved liberation and protection in respect of the reasons libelled and disposition by Mr William Gordon in favour of his creditors lying in process in manner foresaid. Whereupon the said Sir Walter Pringle, procurator foresaid for the said Sir William Hope, declared he was satisfied that Mr William Gordon should have his liberty and personal protection, but with this quality that if ever hereafter Mr William Gordon, or any of his hounding out or with his approval, shall trouble, molest or disturb the said Sir William Hope or his tenants in their persons or in the peaceable possession of their houses and estate of Balcomie, otherwise than by order of law, he shall lose the benefit of his protection. Which whole process, with what is above represented, being advised by his grace her majesty's high commissioner and the said estates of parliament, there was order for setting the said Mr William at liberty and a protection to him granted in manner and with the quality foresaid. Extracted.