[1704/7/149]¹

Judicial Proceeding: protection to George Dundas

Process of George Dundas against his creditors called and, none compearing, a protection to the next session of parliament inclusive was granted to him as follows.

Protection in favour of George Dundas

Anent the summons and action intended and pursued before his grace her majesty's high commissioner and the estates of parliament, at the instance of George Dundas, merchant in Leith, against his creditors after-mentioned namely, James Forrest, merchant in Leith, Captain James Murray, merchant in Edinburgh, for himself and as tutor for James Edmonston, James Shearer, sergeant in [...] company in the regiment of guards, Marion Aitken, widow of Alexander Henderson, Robert Milne, mason, John Cleghorn, present treasurer of Edinburgh, Mr Robert Blackwood, merchant there, Sir Thomas Moncreiffe of that ilk, Captain John Brown, skipper in Leith, Adolphus Durham, merchant there, Robert Muir, merchant there, James Hay, writer in Edinburgh, Sir John Shaw of Greenock, Archibald Hamilton of Haggs, Sir Archibald Stevenson, doctor of medicine, Mistress Anna Edgar, indweller in Edinburgh, James Anderson, baker there, James Hamilton of Pencaitland, Captain John Wightman, merchant in Edinburgh, Mr John Spottiswood, advocate, Mr James Elphinstone of Logie, Mr Archibald Graham, late bishop of the Isles, Alexander Lindsay, merchant in Edinburgh, Janet MacGill, widow of John Iddington, writer in Edinburgh and tutrix for James Iddington, her son, Alexander Glen, writer in Edinburgh, Andrew Cockburn, cashier to the African Company, for himself and as representing the directors thereof, Mr George Pitcairn, commissary of Dunkeld and his mother, Mr James Ferguson, advocate, factor for [...] Falconer of Newton, John [Maitland], earl of Lauderdale, Sir John Lauder of Fountainhall, Sir James Murray of Philiphaugh, Sir Robert Dundas of Arniston, Sir William Hamilton of Whitelaw, Sir James Falconer of Phesdo, Sir Colin Campbell of Aberuchill, Sir Hugh Dalrymple of North Berwick, lord president of the session, Sir David Home of Crossrig, Sir John Maxwell of Pollok, Sir John Hamilton of Halcraig, Sir Archibald Hope of Rankeillour and Sir William Anstruther of that ilk, senators of the college of justice, Mr John Haliburton, advocate, William Boyd of Woodmill, Margaret Fowler, widow of [...] Brand, baker in the Canongate, Alexander Stewart of Torrance, Mr John Birnie of Broomhill, David Scott of Scotstarvit, Laurence Dunwooddie, merchant in Glasgow, James Crawford of Montquhanie, Christian Dundas, Lady Northbank, Walter Stewart of Pardovan, John Waugh, present dean of guild of Linlithgow, for himself and in name of the guildry there, and John [Paterson], late archbishop of Glasgow, the which summons makes mention that, where by the late act of parliament anent protections, it being ordained that no protection be thereafter granted without citation of the creditors upon fifteen days and inserting their names and designations in the protection. And by a former act of parliament in the year 1695 anent regulating citations before the parliament, it is ordained that summons and warrants for citations before the parliament shall in time of parliament be granted by a deliverance of parliament upon a bill to be given in by the party containing the matter of the cause or complaint, signed by himself or an advocate for him, and to be subscribed by one of the six clerks of parliament and presented to the lord chancellor or president of the parliament for the time, or any of the officers of state, that the same may be by them passed in course, and shall in the recesses and intervals of parliament be granted by deliverance of the lords of session upon a summary citation to abide neither continuation nor roll in the aforesaid upon a bill containing, presented and subscribed as above and no otherwise. Which summons or citations, being granted summons in her majesty's name, shall be thereon directed in manner mentioned in the said act, and the pursuer being resolved to prosecute a protection against the said creditors in the terms of the said act of parliament and to obtain the same for the reasons following. Firstly, because the most of the distresses that are against the pursuer are not for any debts due by himself but only as cautioner for [Patrick Grant of] Bonhard, and yet for his said whole creditors' better security and payment he is content to assign and make over to them the sum of 25,000 merks due by Bonhard to him, and Bonhard, having upon a disposition by him to his creditors of his whole estate, applied to her majesty's high commissioner and right honourable the estates of parliament for a protection to his person against his creditors, it is humbly conceived that the pursuer, who is cautioner for him, ought also to have a protection for the said debts. Secondly, considering that the said sum of 25,000 merks due by Bonhard to the pursuer is all that he has whereby to satisfy them, and the personal execution against him will no way contribute towards their speedier payment and his retiring and absconding, for fear thereof, will rather incapacitate him to use that industry and follow such employments as might happily redound to their mutual advantage in case he were at liberty to prosecute the same. And therefore, her majesty and the said estates of parliament ought and should grant a protection to the said pursuer's person in the terms of and in manner mentioned in the act of parliament above-specified, for the reasons and causes foresaid and others, he citing his whole creditors above-mentioned to hear the same granted or object thereagainst in manner and in the terms above and after mentioned, and anent the charge given by macers and messengers at arms to the said whole forenamed persons defenders to have compeared before his grace and the estates of parliament at a certain day long bygone, to have heard and seen decreet and sentence given and pronounced in the said matter, in manner above and underwritten, as in the said summons and executions thereof more fully is contained, after elapsing of the diet to which the defenders were cited to compear, the said summons was called in the presence of her majesty's high commissioner and the estates of parliament upon 10 January 1701, at which time the pursuer, compearing by Mr John Fairholm, advocate, his procurator and the said defenders by Mr James Graham and Mr William Black, advocates, their procurators, the foresaid summons was appointed to be given out to be seen by the defenders' procurators, and was accordingly given out upon the said 10 January and seen and returned by the defenders' procurators upon the 17th of the said month. Thereafter, the foresaid action, having lain over until 29 June 1703, there was intimation then made for the pursuer to the defenders' procurators that he was to insist therein, and that they should not pretend ignorance thereof, as an instrument under the hand of Patrick Murray, notary public, bears. Afterwards, there was a petition to her majesty's high commissioner and the estates of parliament given in for the pursuer, showing that he the said George, having had the misfortune not only of being a creditor of Bonhard's for the principal sum of 25,000 merks, being the whole stock he had acquired for his own and family's subsistence and provisions, but also was still more unfortunate in being cautioner for him in several considerable sums amounting to above £40,000 Scots. Bonhard being distressed by his creditors, the pursuer was necessitated to retire and abscond and his whole stock is now evicted by arrestments and adjudications and he is rendered incapable these three years bygone to use that industry and follow such employments as might in any way tend to procure a livelihood to himself and family. In order to procure his liberty, he did humbly submit himself to his grace his late majesty's commissioner and estates of parliament upon the act of parliament of 1698 anent protections, and did cite his creditors to compear before his grace and the honourable estates of parliament to hear and see protection granted to him for his person for such a time as should be thought convenient and that for the following reasons. Firstly, because the most of the distresses against him are not for any debt due by himself but only as cautioner for Bonhard, and yet for the pursuer's said creditors their better payment he is content to assign and make over to them his rights and adjudications for sums of money either properly due to himself or which he has obtained for his relief. And seeing Bonhard is at present at liberty, the estate being sequestrated in a factor's hand for the behoof of his creditors, it is humbly conceived that the pursuer who is cautioner for him ought also to have protection for his engagements. Secondly, many of the pursuer's creditors, knowing that the 25,000 merks due to him is all he has to satisfy them with, and that personal execution against him will no way contribute to their speedier payment, but that his retiring and absconding for fear thereof does rather incapacitate him from that industry and employment which might tend to their mutual advantage (in case the pursuer were at liberty to prosecute the same), did, therefore, consent that his grace and the honourable estates of parliament might grant the pursuer a protection for such a time as they should think fit, as the signed consent lying in process does testify. And in regard that the process being now ready to be advised and that intimation is made thereof by way of instrument to the defenders' advocates and that others of the pursuer's creditors have most unreasonably refused to give their consent, therefore, craving his grace and the honourable estates of parliament to compassionately consider the pursuer's case and to cause call his foresaid summons for protection, and to advise the same with the reasons above-mentioned in order to grant him a personal liberty for such time and space as his grace and their lordships should think fit, as the said petition bears. Which petition, being upon 23 September 1703 considered by his grace her majesty's then high commissioner, and the estates foresaid, they appointed all parties concerned to be ready to debate their concern in the above cause the first diet the parliament should be upon private business. And there being upon 24 August instant an intimation for the pursuer again made to the forenamed procurators of his said creditors, that he was to insist in his said action for a protection, as another instrument under the hand of the said Patrick Murray, notary public, fully bears, thereafter, the foresaid action and cause was upon the day and date hereof called in the presence of her majesty's high commissioner and the estates of parliament foresaid and they, having heard the said petition and that the said process at the pursuer's instance against his creditors being publicly called at the great door of the parliament house, in the usual manner, none compeared to object against the desire thereof and, being therewith well and ripely advised, they granted and hereby grant to the said George Dundas, pursuer, a protection for security of his person against all legal diligences for civil debts due by the pursuer to his creditors above-named called in this process, until the next session of parliament inclusive, declaring that this protection shall not defend against any diligence for warrandice of assignations and dispositions granted by the pursuer to any of his said creditors.