Some Reflections upon this Bargain,
It is humblie offered to the Consideratian of the Judicious Reader, whither this was not Concussion in Uberiore forma in this Bussiness?

FOr clearing whereof, we are to consider, 1mo. The qualities and Condition of Rossyth the granter of this Disposition. 2do. The qualities and Condition of Inchdairnie to whom the Disposition was granted formaliter. 3tio. The Qualifications and Condition of my L. Hercarse, Present, Advysing, Perswading, and bringing the Bar­gain to a Conclusion. As to the first, it is well known, Rossyth is amongst the most ancient Barrons in Fife, (if not the most an­cient) and of a most Honourable Descent, and also a Gentleman who understands his own business considerably well. 2do, The Bargain he had made with me was not rashaly contrived nor made use of upon a Surprisal, but after many Conferrences and Friendly meetings had for the purpose at several of which, his Advocate Mr. John Stewart was present. 3tio, After it was closed the expression abovementioned, which he used to my Son in Law, who had done him several singular Services, insinuats he judged none but a base and unworthy Rascal, would resell from a Bussiness so fullie ended and concluded: But lastly it is to be considered he was a Gentle­man in distress, and under many burdens of Debt to several Cre­ditors, and he had one great Action depending before the Lords of Session for a great Summ of Money, which would have much contributed for his relief, and concerning the delay whereof I have heard him often complain. As to the second it is well known Inch­dairnie was in no condition of himself to do him any Service; but only by my Lord Hercarse his Father in Law, and it is well known he was neither so Skilful in Rhetorick, nor Fluent in Oratorie, that thereby he could effectuate any great Matter: But as to the third, it is as well known that my Lord Herearse is a Person who has been bred in Sciences from his Youth, Skilled in the Law, and [Page 10]for his present Condition he was then a Lord of the Session, and reckoned among those of the first Magnitude, and a man of a most forward Inclination in Prolecuting or Bussness, whether for him­self or his Friend; as also, he was a Lord of the Court of Justiciary, which was a Court most terrible to many in that day, and by which Court Walter Stewart, Ressythes nee [...] K [...]nsman and appear and Heir, and several others in whom he had a special Interest were declared Fugi [...]ives. Which being Considered, it is offered to the Considerati­on of the Readers, whither this was n [...]t Concussion in the highest Degree? which by the Doctors of the Civil Law, is defined to be Crimen quo sub pretextu potestatis quam quis h [...]het terror injicitur pe­cun [...]ae vel rei alterius extorquendi causa, &c. And if it be not a Concus­sion of the worst nature, in so far as hereby a Gentleman of Ancient Extract, great Credit and Honour, has been perswaded contrair to his Faith and Ingadgement to Violat his Obligation. So deli­berately perfected and adhered to for some dayes therea ter. And in so far as it was likewise done contrair to the Laws of Gratitude in so far as concerned Mr. William Hoge, for whose Children the pur­chase especially was made, for whose cause he often decl [...]red he wold give me a Thousand Merks down of the Pryce; And in so far as it was done by a Lord of the Seossin, who should have been a Pat­tern and Patron of Justice, and that accompanyed with the Cir­cumstances abovementioned: And also whither herein there was not Money given by Rossyth, upon this power and terror injected? in so far as the Bargain was granted for a Thousaud Merks less then Mr Robert Pittilloch should have given for it, besides an other Thousand merks which Rossyth declared he gave down, out of his respect to Mr. William Hoge; To all which may be added, such was his Confidence of Effectuating his Purpose, Terrore suo; et plena po­testate quam tune habuit, that the Summonds was raised, and exe­cute, for the Annualrents in Rossyths name; before this Bargain was made, without his knowledge or consent as he declared to me himself several times but leaving this to the Judicious Reader; we proceed;

After this Bargain was ended, and the Summonds raised, and execute, in the name of Rossyth and Inchdairnie, My Lord sent for me the second time, and when I came to him, he asked me, if I would satisfie them now for the Heretable Right, and all the bygone [Page 11]Annualrents? To which I answered, looking upon this Motion as a Jear, I had once bought it alreadie, and his Son in Law had taken it over my head; I had no mind to buy it the second time, and when I looked for a reply, carrying Reasons to Justifie the deed; All he said was, he had reason to doe for his own securitie; which my weakeness could not comprehend, to be any better Justification, then if a Robber with an empty purse, when he had taken one from his Neighbour, had told him, he behooved to do it for his own securitie, in as much, as without Money he could not Travel: As likewise he told me, it would byd but one Bellum; which I looked upon as the highest of Threatnings, and therefore answered him with much Sobrietie, I could not help it; his Lordship knew the old Proverb, There was never a Lord of the Session lost a cause, and there never one of their Bairns wan one. Thus having parted from him, the Summonds being execute both for Mails and Deuties, and for Annualrents, die Summonds for Poinding the Ground was called upon the 6 day, which was the day of Com­peirance, contrair to the Pratick of the House; which is not to call till the day of Compe [...]rance be past: But as to the other for Mails and Duties, it was never yet publickly called, in the ordinar man­ner, nor any of the two sent out to be seen for six dayes, conform to the Laws of the Kingdom, Acts of Sederunt, and immemorial pra­ctise in such cases: But tam avide inhiarunt in legatum adventitium. which had hapened to Inchda [...]nie in an unexpected manner; that a new course was invented for a sudden Dispatch of the business: viz. Inch­darnie gave in a Bill of Suspension, in name of the whole Tennants, ennumerating them by their names; and amongst them one who was never a Tennant, viz. Robert Douglas Servant to Agnes Temple­man, and se [...]t [...]ng down their particular Duties, and acknow­ledging, they were resting the same for the Terms of Whitsunday & Mertimass preceeding; and that they were to pay the same to any having best Right, but they were distressed by two several Parties, &c. Which Bill being given up to see, these Answers were given to it verhatim.

Primo, If this Bill of Suspension be granted, Writers to the Signet needs never hereafter to put in another reason of Suspension, but sie volo sic jubeo; In so far as in the first place, this Bill is given in by Inchdarnie, not only without the consent of the saids Tennents, but [Page 12]after they have disowned and disclaimed the same, as prejudgeing them of all the Priviledges competent to them in an Ordinar Action which he has stated against them for the saids Mails and Duties: Which (as is humbly concevied) is a Forgerie; if not a Falset.

Secundo, This Bill Lybels the Tennents, as acknowledging they are resting their hail Mertimass Duties, and that they are willing to pay them to any of the saids Parties who shall be found to have best right thereto: Whereas they have truly payed them to the said Margaret Wardlaw and her Husband already, and received dischar­ges therefore, who has been their Masters these 20. years bygone: And that before any diligence used by the other Party, to put them in Malafide, which (as is humbly conceived) ought likewayes to be looked upon as a second Forgerie.

Tertio, In this Bill the Tennents Duties are Lybelled, as acknow­ledged by them farr beyond what they are, and by some of them who pays no Dutie but two Shearers in Harvest, for their small par­cel of Land, to be considerable sumes of Money; which (as is humbly conceived) is a third Forgerie.

And as to Margaret Wardlaw Conjunct-fiar of the saids Lands, and her Husband, if such a Bill should be past, Inchdarnie having devised this project, and prepared all his Instructions for Summar discussing; they are most unjustly surprised, and hereby defrauded of the or­dinar terms, competent to them in an ordinar Action: Which is the more odious in the person of Inchdarnie, Because this is the first time that ever they heard he pretended an Interest in these Lands.

2dly, If such a Bill should be past, it puts them in a condition never to uplift their Mails and Duties, albeit they should loose the Arrestment; upon a meer Alledgance and pretence of persons who never yet shewed any right thereto: Whereby if any of the Ten­nents prove lapsi bonis, they are lost for ever.

And if it should be discussed upon the Bill, which Inchdarnie bosts he will obtain, it is a preparative of most dangerous consequence; contrait to Law or Pratick, to discuss Heritable Rights, in prima in­stantia upon an Bill of Suspension: And if this should be sustained all ordinar Actions of greatest concernment, may be brought from the Bench to the Side Barr, meerly upon a pretence, that the pursuer has a Competitor: Whereupon the Defender is defrauded both of [Page 13]his ordinary Dyets for proving his Defences: and the benefice of the Roll, ordained for the Leidges, that they may not be surprised in their just Defences competent to them in their several Actions. P [...]t the Business was with the Son in Law of my Lord Hercarse, which he was to finish with one Bellum; and none of the Answers were re­spected, and therefore we put in a Bill to the hail; Lords of the Tennor following;

THe Lords haveing heard this Petition remit to the Ordinar, to whom the within Bill of Suspension was presented, to or­dain the same to be given up to the Petitioners; or to be subscrived by Inchdairnie or not as he shall find just. But my Lord President refused to subscrive it: Whereupon to morrow thereafter I waited upon his Lordship while he was upon the Bench; And after he had ended the Subscriveing all his Interloquitors, and Subscrive­ing the Deliverances upon other Bills, desired his Lordship would Subscrive this, shewing him the Ordinar would doe nothing on it, without his Subscription: To which he answered, he remembered nothing of it, whereunto I replyed I was never known to be a For­get, and the Clerk whose carriage in all the Bussiness was honest, and impartial rose up and owned it, whereupon he desired me to move it to Morrow; and they would do something in it: Which accordingly was done, and as I was informed, (for there was no­thing put in Write) it was Verbalie recommended to my Lord Drumcairn, to whom the Bill was presented. What the Reasons of my Lord Presidents refusal were the Eminence of his Station and the Greatness of his Parts, forbids me by Conjecture to Determine, albeit in that day I judged it as much his Dut [...]e, as it was mine to require it. However neither the one nor the other was grant [...]d, albeit the said Bill was likewise disclaimed by the Tennants pub­lickly, their Advocate Mr. William Hoge in their name disowning the same at the Barr; But all was in vain, the Bill is sustained: It was given in by my Lord Hercarse his Son in Law. But because neither the Answers given to the Bill of Suspension, nor the Rea­sons given in in the Tennants Bill were respected; wee shall add some few Reasons further, which we conceive could not but be known to the Lords themselves, viz. 1mo, A Suspension in its own natu [...]e is but a Dilatorie sentence, as the word signifies, the deli­verance [Page 15]upon the Bill imports, and the Sentence at Dicussing bears which is either, Finds the Letters orderly proceeded, or Sus­pends the Letters simpliciter; and therefore where there is no charge the Suspension is a Suspending Nothing, and Nothing cannot be put to further Execution, if it be alledged his Rights gave him a ground of a Decreet; and therefore there was a charge in the Root, tho' there was no formal charge: It is answered, his rights were not then produced and judged of, and de non entibus & non apparentibus idem datur judicium: 2do, If it shall be sustained that persons may give in a Bill of Suspension whither the Debitors will or not, then any malicious person at his pleasure may give in a Bill for Suspend­ing the Creditor, to provock him unnecessarly to distress the De­bitor: Whereupon much trouble and distress might follow. If it be answered they have not an interest; it is replyed as formerly, whatsoever his Interest was, at that time when his Bill was sustain­ed it was not seen and considered by the Lords: But because through the weakness of my Capacity, which could not swallow the De­clarations and Tests which other of profounder Judgments receiv­ed with full Satisfaction, I have been many years out of Practise, in which the Lords might have made many Acts of Sederunt, which makes such Fictiones furis lawful, and Practicable. We shall in­sist no more on thir: Adding only two more, which are founded upon pure Nature, and these Principles which GOD hath im­planted in all Mens hearts, The first is this Bill of Suspension cer­tainly ought not to have been sustained for the ground of a Decreet, against any but such as were Tennants in the Lands, to which Inchdairnie pretended right: 2do, Nor against them, for Sums or Duties which they were never resting But so it is that upon this Bill, & [...]nd­ing the Letters orderly proceeded thereon; Decreet was past at least against one who was never Tennent in these Lands, & against many of them for Sumes they were never due; Whereupon they were denunced, and upon Caption Incarcerat ten dayes in the To booth of Dunfermleng; The Lords having no other Instruction, either who were Tennen s, or what they were resting, but Inchdairnies word therefore: Whose carriage truly was somewhat Scandelons when he came amongst us, tho' his Authority was so great with the Lords: And if it shall be alledged to be the fault of the Writter who raised the Horning, It is answered, when a Bill was put in [Page 16]complaining of the Writter, and craving he might be punished therefore, The Lords answer was, Finds the Writer has done no wrong. And therefore wee leave it to the Reader to consider, where the wrong lay. Whereas they found out a remeed afterward for Liquidation and proveing the quantities, it shall have an answer in its own place. But as yet there was never any thing invented, for succour of him who was no Tennent, seeing the order for the Tennents to compear and depone, could never oblidge such as were no Tennents to compear and depone, nor can it in Reason be con­ceived, why the Decreet might not as well have passed against the whole Parioch, if Inchdairnie had lybelled them Tennants, the reason being one and the same as to one and to many.

But the Bill being sustained, tho the Lords were far advanced in their Roll of Suspensions; Yea so fat that it would not have tempted any ordinar Mans patience, to have waited till it had come in in the ordinar Course, yet the reasons of this behoved to be discussed on the Bill; (it was to abide but one Bellum) for which a Bill was put in by Inchdairnie to the Lords, which receiv­ed answer in these Termes.

January, 21 1688.

THe Lords discharges the Clerk to the Bills to expede the with­in mentioned Suspension, untill the Chargers be heard, be­fore my Lord Drumcairn, Ordinar; to whom they remit to dis­cuse the reasons of Suspension upon the Bill: By which delive­rance (passing the Solesisme therein contained, in discharging the Clerk to expede the Bill who never had power to expede a Bill till it was passed by the Lords, and by the latter part of it make­ing it impossible for either Lord or Clerk to expede it, in the no­tion of a Suspension; It being remitted to the Ordinar to discuss the reasons upon the Bill) Inchdairnie had these Advantages, 1mo, The choice of his own Lord, how much he followed my Lord Hercarse his Faith shall appear by what follows hereafter: 2do, Here­by he prejudged us of the benefit of the Roll, which by the Laws of the Kingdom, and Immemorial Pratick, is allowed to all the Leidges. 3 [...]o, Hereby we were prejudged of the ordinar dyets, Competent to Defenders in pursuts for Mails and Deuties, in so [Page 17]far as upon the 25 of Januarie, we were ordained to produce our Interests with Certification betwixt and the tenth of Februarie there­after: Which was the allowing us but 16 dayes, which in all pro­bability, if we had had the benefit of the Roll, and other Privi­ledges Competent to Defenders, in Actions for Mails and Dueties, would have been 16 Moneths; A great part of our righs being out of our hands, whereupon an incident diligence would have been granted us. But howsoever this being inacted, wee rested secure, till an Act should have been extracted, as has been the constant practise in all such cases, ever since the erection of the Colledge of Justice: Ane therefore we payed the Extracter to give us out a Scrol to see, before the same should be Subscrived. But the day being elapsed, the Ordinar called it upon the Bench, with­out any Act extracted; and because we did not instantly produce Decerned, preferring Inchdarnie to the Mails and Duties, whereupon we put in another Bill, of the Tenor following,

If the Lords had refused or rejected this Bill, as frivolous and im­pertinent; it is like the Petitioners submitting to their Lordships Judgements, would have acquiesced. But as the things therein de­sired, are in themselves pregnant, and most pertinent, so the Lords implicitly at least, have approven them to be such: by giving them some thing like an answer; but in effect answering none of the par­ticulars petitioned for in the Bill. For albeit it may be alleaged, that a farder Dyet was craved in this Bill; It is easily answered, that albeit by the granting the just desires of this Bill, it would have fol­lowed by Consequence, that a further Term would have been granted, yet this is no wayes the desire of the Bill; but 1mo, That Inchdairnie subscrive the Bill, and abide thereat, that a solid ground [Page 19]might be laid of an improbation against him for his Falset and For­gery. 2do, That the Circumduction of the Term might be declar­ed Null; That so that Decreet might be turned into a Lybell: and no Circumduction might pass till an Act were Extracted, and cal­led, conform to the Laws of the Kingdom. 3tio, That the Lords would declare, they would allow us the Priviledges due to other Defenders, in actions for Mails and Deuties: Or if the same should be Arbitrarly altered, in favours af Inchdairnie, because it has the name of a Suspension.

But all Petitions being in vain, we produced Margaret Wardlaw her seasin, bearing her to be infest in the Lands above specified: Which was all the Rights we had in the Town at that time con­cerning these Lands. And Inchdairnie produced his Rights, found­ed on, whereupon we were ordained to see in the Clerks hands: tho' the ordinar Custome according to Law, and practice, is to send out the pursuers process, to the Defenders Advocate: Which he is not bound to return till six dayes be Elapsed, and the De­fender is not tyed to produce his, till he propone thereupon, and if his Defence Founded upon his Interest be founded Relivant, a day is assigned to him, whereupon the Pursuer extracts an Act, and forces him to produce. But as to the Pursuers Production, we were only ordained to see in the Clerks hands, who refused to give it up without a receipt from our Advocate: Which being grented, before or a little after twenty four hours were elapsed; (a time scarce Competent to Inventar the many writes given in by the Pursuer) we were urged to deliver them back again: tho' ours is keept up to this day. Inchdairnie pretending it is his evident; And an Action of Removeing Depending against us; tho' this was the only evident we had whereupon to found a Defence; And albeit his Father in Law, and Procutor had declared; there should no such Action be pursued till it were given up, adding they were not so base, as to fight with a man when they had taken his Armes from him.

The production being thus satisfied, My Lord Drumcairn called it upon the Bench: Where my Lord Hercarse compeared with his Purple Gown, and debated the case as Inchdairnies Advocat, repeating all his writs, it seems relying on the old Proverb, Quum singula non pro­sunt, multa juvant. But so far as I remember there past no Decreet that [Page 20]day, but to morrow thereafter his Lordship calle it again, at the Side Bar; where my Lord Hercarse compeared again, in his former habit, and the dispute was renewed: in which dispute, our Advocates would propone nothing as to the Annualrents, aled­ged due by the Infestments following upon the Heritable Bonds: Because an Action for such Annualrents, and an Action for Mails Deuties, are toto caelo different, 2dly, Because there was nothing in Libello: There being nothing in the Bill of Suspension, which was the ground of the Process, but Mails and Deuties: But knowing there could be nothing in this process for a ground of Mails and Du­ties, which are the Emolument of the property, but the Apprising; This unanswerable Defence was proponed: Offers to prove the Ap­prising Reduced, in foro contradictorio, quo ad Margaret Wardlaw, the Conjunct-fiar, and tho they were bound to say no further; Yet ex super abundanti, because what he proponed upon a Back-bond of Re­version, seemed to savour much of Natural Equity: It was answer­ed, primo, This Back bond was granted by a Wife, stante Matrimonio, and under Reduction, 2do: Finding there was much weight laid up­on it, we offered under protestation that it should not be prejudicial to our Reduction, to Count and Reckon presently, without an Or­der of Redemption; Albeit in Law without an Order, we were not tyed to Answer. To the first it was replyed, the Reduction is with­out prejudice of Inchdarnies Authors real Right, which Inchdarnie produced to clear the same, which was true as to the matter, but most impertinent as an answer to the Defence produced: It was not contraverted but their real Rights were valid; but they could never be a ground for Mails and Duties in prima instantia; nor any other Right they produced but the Apprysing, which the Defence above­mentioned, did totally elied. But my Lord Drumcairn being strait­ned with the Defence, answered himself, that our Reduction was but as to personal Execution against Margaret Wardlaw. To which I replyed my self, my Lord, The peril of the cause upon that. And hear we desire the Judicious Reader to consider, whether the Or­dinar who gave such an Answer, had purused the process, or if im­plicita fide, he had followed my Lord Hercarse his Faith: seeing the very words of the Reduction are, Finds the first Reason of Reduction re­livant, and proven, to so far as concerns the personal Obligdment, and all that has followed, or may follow thereupon as Null; And therefore, Reduces, Retreats, [Page 21]Cassis, and Annuls the saids Bands, in so far as they personally obliege the said Margaret Wardlaw, with all Decreets of Apprisings, Charters, Seasings, Decreets of Removing following thereupon, Declaring the same to have been from the beginning, to be now and in all time coming Void, and of none Effect, quo ad eam, in so far as the samen are deduced against her, upon the fore­said personal Oblidgement. Likeas if his Lordships patience would have admitted us a Hearing, we could shewed him further, that she stood in no need of a Security for her person; in regard the same was already sufficiently secured, by a Suspension standing yet undis­cussed. To the second, there was nothing answered, But there was no Reduction produced; which was an Answer of no value, it being time competent enough to produce it, at any time before the Count and Reckoning was ended: Especially the same being offered, before useing an order of Redemption, or raising Declarator thereon. But my Lord without further answer, or heeding what was said, decerned, and so went hastily from the Side Barr, refusing us the Lords Answer upon a Maund; which in Law is competent to all Subjects in the Kingdom.

Hereupon to morrow thereafter, I put in a Bill to the Lords, of the Tennor following:

This Bill being read to the Lords, It is given up to my Lord Hercarse to see: Who (as is informed) went to the Kings Advocat, and consulced it, to make up a strong Accusation against the ingi­ver: Who was appointed to answer to the Bill on Tuesday thereaf­ter, upon which the same being called the said day, in the After­noon, the Lords gave their Deliverance in thir Terms:

Which Sentence in this was the more grievous, that it was pas­sed the Penult day of the Session, so that if he had been Appre­hended on the morrow thereafter, he must have lyen in Prison till the sitting down of the next Session, being the first of June, see­ing no one Lord nor three would have taken upon them to have inlarged him. But taking this Deliverance into my serious consi­deration, I found it 1st. Generally finding the Representations con­tained in the Bill Calumnious: And I humbly conceive, there are some of them, which my Lord Hercarse himself will not avert to be Calumnious: 2dly, I found there was no mention of the latter part of the deliverance, anent my imprisonment, mentioned in the Decreet, when the said Deliverance is repeated for fortifying there­of. Lastly. I find none of our Bills, first or last, insert in the De­creet, nor the Answers thereto, tho it be the constant custome in such cases, alwayes to insert Bills and Answers as a part of the pro­cess: Which Fortifies or Weakens, as they are Granted, or Refu­sed; And as to the Reason hereof, I leave it to the Judicious Rea­der, and will not take upon me to judge thereof, least it be recko­ned to me for a second Crime; But come to the Bill it self: The first Representation bears, the Conference which past betwixt my Lord Hercarse and the Petitioner, when he first sent for him; And that albeit the Petitioner hastened the Agreement, Inchdarnie with concourse of his Father in Law, after the same was done, caused him dispone it to him for a 1000. Merks less than I had agreed for; He having a great Action depending in the Session, against my Lord Annandale, and knowing the great Figure Hercarse made among the Lords. As to what touching the first part of it, anent our Confe­rence, it is believed Hercarse will not deny the Truth, of it himself, and there is no shaddow of a Calumnie in it. As to the 2d: part of it, That Inchdarnie caused him▪ Disnone with concourse of his Father in Law, &c. We hope my Lord will not deny he was present, at the making of the Bargain, which if he do, we offer to prove it: And if he was present, all the World will conclude he came not [Page 25]there as a Cipher. Yea, we are free to say, any Man who knows him and his Son in Law both, speaking his mind with any ingenui­ty, will conclude he was the chief Actor. That Rossyth had a great Action depending before the Lords, against my Lord Annandail, is nottour; and I have often heard it of himself. And that Hercarse made a great Figure among the Lords, is no less nottour. The Bill bears neither that my Lord promised to hasten his Action for the Bargain; nor to do him any good office whatsoever, but simplie relates the Truth as it was: And if my Lord himself makes any such Applications, he may blame the witness within himself, and not the Ingiver of the Bill: Tho he believes it had been neither ca­lumnie, nor reflecting upon my Lord, tho he had added, Rossyth having in his view the service such a Lord might do him, farr beyond the worth of 1000. Merks or two. The second Representation is, That in an unusual manner, he raised a Suspension in the Tennants names, which was by them and the other alledged Chargers disowned, which as we are informed, is not agreeable to Law. If it be usual we desire the Complainer to condescend but upon three cases (which is the least makes a perfect number) quadrating with this since the Erection of the Colledge of Justice, and we shall acknowledge it an Error, tho it would prove no calumnie; but a mistake of the Form of Process before the Lords▪ And if it be denyed, that it was disowned by the Tennants, it is offered to be proven scripto; and the Answers given in to Inchdarnies Bill sufficiently verifies, it was dis­owned by one of the Chargers, and their carriage all along in the whole business. As to the third, That the Tennants put in a Bill, craving the Bill of Suspension might be given up to them to be de­stroyed; or that Inchdarnie might be ordained to subscribe the same before Witnesses, and abide thereat. If it be denyed, their Bill is Extant to verifie it: And that it was not granted, is a Negative, and proves it selt, till the contrar be instructed. As to the Fourth Re­presentation, it is, that where in an Action for Mails and Dueties it is enacted that the Defender produce such a day, no Decreet can be pronounced, till an Act be Extracted, and called, yet without Extracting and calling an act, this Decreet was Pronounced: And as to the first part thereof, there is hardly a Pock bearer about the house, but will give Testimony to the Truth of it; and as to the second, it is beliered the ordinar will not deny he past a De­creet [Page 26]upon the Bench; when there was no act extracted: tho' after­ward he past it de-novo upon as was alledged better Grounds: To which many others likewise were witnesses. The fifth Reprsen­tation contains nothing, but an Abbreviat of the Disput', and that my Lord Hercarse compeared as Procurator for Inchdairnie: If it be denyed that Hercarse compeared as Procurator, we are ready to prove it by many witnesses: That we proponed the Defence mentioned in the Bill, and gave in the replyes specified therein to Hercarse his answers, we offer to prove it if denyed by Hercarse his own oath, he being now but a private person, and the Declaration of my Lord Drumcairn. The last Representation is, that tho' we offered to compt and reckon without an order of Redemption it was not granted; And that we never had a sight of the Decreet Her­carse proponed upon; For eleiding our Defence; That the Aprry­sing was reduced, which we offer to prove by the oath af Hercarse and the Declaration of my Lord Drumcairn, and that Hercarse was still Procurator, for shame will not be denyed: Yea only Procura­tor in this Debate. And that it was a Practick without a Paralel, we also represented, which we shall acknowledge for an Error, but no Calumnie, when the contrair is instructed: We have seen a Lord come to the Barr, when his own cause was debating, but behav­ing himself with such Modesty, that hardly would he meddle in the Dispute, or any thing, unless it had been to inform in the matter of Fact, but referred all to his Advocats: But for a Lord to come to the Bar, and debate as Procurator for another man, is indeed that which we never either heard or saw, and as to the Precatory part which desires the Lords to consider the concussions, the overhailings, &c. It is answered , 1st. Tho therein there were something, which be­ing insert in the Narrative might inferr Calumnie; Yet the scop of the Petitioning part, being meerly to desire the Lords to consider, if things be so and so, and to rectifie as they shall find cause: It would be very hard to declare upon a mistake here, the Petitio­ner to be guilty of Calumnie: There is never a Bill put in, which is a complaint, but craves something to be rectified, and conse­quently complains, at least Implicirly of Injustice; And if it be not in Terms sufficiently flattering, they must excuse me for this Error: I will not give Flattering Titles unto Man willingly, least my Maker take me away suddenly: Job 31. ver. 21. But 2dly, We believe we [Page 27]have sufficiently instructed injurie, which in the largest sense, is quicquid fit non jure, overhailing, by precipitating Judgment, Ille­galitie, and Informality, in carrying on the Action in a way una­greeable to the Laws of the Land: And that there was concussion is sufficiently made out, in shewing the way, how Inchdarnie came to the Bargain, to which we now add: My Lords ingaging the King's Advocat in the cause, unde abusus est patronatu Caesaris; Labouring to make it a publick concernment, and his influencing the Ordinar so much to follow his Faith: Upon pretence of his great skill in Law, whom the Ordinar conceived to be of as great Ingenuity as him­self. And if it be alledged that he could not injicere terrorem, in the Ordinar; who was of equal station with himself, and Cussing Ger­man to my Lady Errol, a great Courtier in that day, by reason of Communon with the Romish Church. It is answered, granting that he was not only of equal station with my Lord Hercarse, but also that his Mountain was presumed to stand strong in that day; because of his near Relation to my Lady Errol a Professed Papist, by whose Moyan likewayes many believed he was preferred to his place; but all fear upon Concussion, is not a slavish fear whereof we judge my Lord Drumcairn was least capable: but there might be a fear of being toped by Hercarse, when matters came to be Debate in the Inner-house, and a fear of losing his Friendship, with whom he was very Intimat. Neither is Concussion alwayes taken in so narrow a sense, as importing only a slavish fear: Cod: Tit: de Concussione le­ge 4. Jubemus atque hortamur ut si quis forte honoratorum de curionum pos­sessorum postremo etiam colonorum, aut cujuslibet ordinis a judice fuerit ali­qua ratione concussus, si quis scit vaenalem fuisse de jure Sententiam; si quis poe­nam vel pretio remissam vel vitio cupiditatis injestam, si quis postremo quacun­que de causa improbum jndicem potuerit improbare is vel administrante eo, vel post administrationem depositam in publicum, prodeat crimen deferat delatum approbet cum probaverit & victoriam reportaturus & Gloriam. To all which may be added, that while we speak be way of complaint of my Lord Hercarse; we spake against him not as a Lord of the Session, but as Inchdairnie his Procurator, if a Lord of the Session, should be found in a Plebeian habit, in some base imployment, and meet with some afront which would be esteemed such to a Lord; but not to one of a vulgar station, he could not complain that there were any injurie done, or a Lord were affronted: And therefore though [Page 28]there were something in this Bill which might be quarrelled if done against a Lord: (which we cannot find) Sure there is nothing in it which might not have been said, against a Procurator, and more also.

But possible it will be alledged, I am presumed to be guilty, be­cause there was no Compearance for me, In answer to which it is to be considered, the order was that I should compear on Tuesday, to answer to my Bill, (which whither it was publick or not I do not remember) which according to the Grammatical Construction, and the letter, seems to be in my favours; for explaining and clearing something in the Bill, and taken in this sense; I might compear or not, as I thought good: For any man may renounce jus suum, but I soon found it was in the scope of it, to answer to Hercarse his Accusations, founded upon my Bill, in which case I was not tyed to compear: till First, they had given me notice who was my Accuser, 2do. The double of my Inditement, especi­ally it being founded upon write, and a Complex business. 3tio, I ought to have been Cited by a Macer or Messengers at Arms, none whereof were done: And therefore I was not bound to compear; And yet I did compear, and was ready to answer all the Forenoon, but they delayed the calling of it till the Afternoon; at which time I judged it no wayes mv duty to compear, for these reasons, 1st. In the Afternoon the Officers of State are Absent, 2do. All the ex­traordinary Lords are absent who were unconcerned in the Business: 3tio. It was impossible for me to get my Advocat whom I had con­sulted, to attend in the Afternoon, in the close of the Session, he being a Gentleman of great Imployment; and it was uncertain whi­ther they would call at 2. or 3. a Clock ot at 6. or 7. at Night. So much for the Clamercus Bill, so called.

Within a few dayes after the rising of the Session, the Lords meeting for some concernment of their own, They recommended to the President to agree the Civil Interest, and for that effect delay­ed the Execution of the Sentence, for my Imprisonment for a Mo­neth, with power to my Lord President to prolong my Liberty if he should find cause therefore. Hereupon we made an Address to my Lord Hercarse, to draw an Absolute Submission to my Lord Pre­sident, to do in the matter as he should find just: To which Hercarse chearfully condescended, being then in a tender frame, partly through the rescent lose of his Place, and partly through the sick­ness [Page 29]and death of his Daughter, who if Fame be not a false witness, was a Gentlewoman qualified with singular Induments: Whereup­on we caused draw the Submission and subscrived it, I my self and my wife, who was going out of the Town, Hercase having declar­ed (because Inchdairnie was not in Town) he would take burden for him. But it being uncivility to trouble him, while he was in extre­mitate luctus, we forbear for a time, and when we came to desire he would subscrive, found he was returned to his old Temper, and he resiled, alledging a Communing would do the business, and when we told this to the President, we found him of the same mind, and albeit I well knew a Communing would be to no purpose, yet that it might appear I was averse from nothing which might effectu­at Peace, I attended a moneth after the Session rose; being in a ve­ry infirme and Valetudinarie condition, in which at length hav­ing obtained a meeting before the President, I found nothing in his Comuning but Calumnniating my Person, and justifying all he had done: But concluding that they might get these Lands with a Bles­sing, he would give what the President should appoint. But not be­ing satisfied with his rough discourse, and knowing he might as well reseill from the Presidents determination by word, as he did from the Submission: We parted without a Conclusion, only the Pre­sident said, he would order his Decreet to be extracted, which ac­cordingly was done.

This being done, Inchdairnie with John Law, Hercase his Servant, went alongst the Tennents, and with many Threatnings and bigg Menacing words perswaded them to take their Lands holden of him. But all in vain, their love to their old Masters was so deeply root­ed, that they would take of no other, till necessity forced them: Hereupon Inchdairnie in July thereafter charged them, to make pay­ment of their Mails and Dueties as he had lybelled them in his Bill of Suspension; upon 15 days: But his Charge being given upon the 6. of July, they were denounced upon the 11. which was upon 5. days, all Registrate at the Horn, and Caption taken out against them. Whereupon (as is informed) Inchdairnie was upon his way, to have taken all the Tennents, but his Father in Law knowing the gross­ness of this Act, sent over Mr. Law and stoped him▪ And to Palli­ate the Illegial Denunciation, and Caption, which was taken out, he and his Guide abovementioned, came to the Tennents, and Threat­ned [Page 30]them, if they brought not their Dutie to him, and that to his own house before the 15 days were expired, he should not leave them a Cock to crow Day: And (as is informed) his Father in Law took the Messenger to the President, who being a poor man took all the fault upon himself; giving an Excuse therefore, not worthy of the writing, and far less of an Answer. But one thing was forgot­ten by them both, the same Messenger was thereafter imployed to apprehend the Tennents, which no rational man being free of the guilt, would have done; he being so gross a Criminal, untill he had either been Purged, or Punished. But the Tennnents finding that the charge it self was judged Illegal, by several Writers to the Signet, it being but in effect a general preferrence, and a Declarator of Inch-Inchdairnies right, a Bill was put in to the Lords, complaining upon the writter, who had raised such a Horning, they being charged particularly, for the Sumes as Inchdairnie had lybeled them. To which the answer was, finds the Writter has done no wrong: Hereupon the Fifteen dayes being near expired, a Bill was put in in the Ten­nents names, for a Suspension, as the last remeed, whereof the reasons were. 1st. The generality of the Charge (for the Charger disowned the particular Charges given by the Messenger.) 2do. There was no Liquidation, tho some of their Dueties were partly Victu­al. 3tio, There was no probation of the quantities. 4to. There were several others not called, who had an Interest, viz. The Superior for the few Duties, and the Minister, and School-master for their Stipends: Which Bill was given up to see, and kept up till the last day of the Session, that in case there were any necessity for it, all remeed might be cut off. The reasons were unquestion­ably Relivant, and passing by the last, the 3 first were instantly proven being Negatives; all that ever saw it concluded, it could no be refused, but if it had been past, it would have cost Hercarse a second Bellum, and it was too strong to be refused. A new course is invented, for fortifying Inchdarnies Decreet, (whether by Her­carse his contrivance or not, we leave it to the Reader to judge.) The Lords ordained the Tennents to compear in time of Vaccan [...]e, viz. Betwixt and the 15 of August, before my Lord Castlehill, and depone anent the species and quantities who had no Tacks: and such as had tacks to produce, and restricked the Chargers diligence, to what u­pon Oath they should depone, and to what was contained in [Page 31]their Tacks who had any. Which Sentence is never drawn in an Act, Extracted and Read out of the Minut-Book, to put the Tennents in Mala fide; But Writen by the Clerk upon a Lords Direction, several dayes after the rising of the Session: Yea so close it was in the carrying of it on, that the Gentel­man who was Agent in the cause, having inquired of it at the Clerk, he told him he could not tell him what it was, nor could I my self by any inquiry, have certainty in the matter, till I came to my Lord Castlehill hearing it surmised, it was referred to him as it was indeed. Hereupon the Tennents did compear, and produced there Tacks and Deponed: Only two sent Testificats subscrived by the Minister, and four Elders, witnessing that in regard of their great Age they were not fit for Travel, the one being upwards of Fourscore years, and the other being near about this Age: Which was not sustained because it wanted Soul and Conscience, concerning which we shall only say this much, that albeit it be ordinar, in Test ficats under the hands of Physicians and Chirurgions, to re­quire they be upon Soul and Conscience: It was never required in a Testificat, concerning a Mans Age, for if so the Testifiers them­selves must be about a Hundred, which is rare in this Age: For he cannot give rationem scientiae till he be Fourteen; and secondly they must have been witnesses either to his Birth or Baptism 80 years agoe. But we leave thir ticklish questions to my Lord Hercarse to solve. The Tennents having some deponed, and some produred their Tacks Inchdairnie denunced them registrare and took out Caption de novo, and upon the 21 of August the same Messenger, at his instance apprehended the Tennents; being ten in number, whereof two were the old men abovementioned, and incarcerat them in the Tolbooth of Dunfermling: W ere they continu d Prisoners ten dayes, being the time of Harvest: till they were forced to pay him their Dueties; such as could get Money, and such as could not to give Bond, or find Caution, as also after they had agreed for their Duetie, he forced them to take a three years Tack of him, or else threatned them to return them again to Prison.

How the Lords will relish this diligence, before advsing of the Tennents oaths, and a Declaration judicial what was contained in their Tacks, time will declare hereafter: But we believe up n im­partial Examination, it will be found a clear Spulzie, and also a [Page 32]breach of Arrestment, there being two Arrestments layed on upon the Mails and Duties, which were not loosed by Inchdairnie, till the Tennents were brought Prisoners to the Town of Dunfermling. The Chancellour his Over-awing power being now gone with him­self, tho' not long since, Inchdairnie foread out his kindly Letter to him, before the Tennents in Tillo [...]ill, to terrifie them by his Authority.