THAT whereas the Bishop of Galloway having Three Daughters, and the El­dest and Second having had sufficient portions from their Father, by their Contracts of Marriage; But his Youngest Daughter Alison (who deserved best, having stayed longest with him, and waited on him in his old Age) getting no Portion, had therefore the only proper interest to be his Execu­trix, And Mr: Duncan in his Wifes name obtained her decerned Executrix by the Commissars of Edinburgh gave up Inventars, found Caution to make the Executrie goods, furthcomeing to all parties haveing Interest, and expedes the Confirmation up­on, an Edict; To which the other two Sisters and their Husbands, and the Relict were personally cited; And whereupon Mr: Duncans Wife is sele Executrix Dative. qua nearest of Kind, discerned and conformed: The most of the effects of which Executrie lying in Galloway, And extending to a considerable summ (besides the ann half Cropt 1688, the Bishop surviving Martinmass 1687,) Mr. Duncan pursues the Debitors, and by Process made a considerable progress in executing of this Testament, and ob­tained Decreets and Acts against a great many of them; And he being oblieged to do diligence, and discussed the Inventar, And that a considerable summ was in the hands of the Viscount of Stair; And als that the Bishop in his own life time had commenced an Action against him for 1257 pounds Seots money, or thereby yearly, as Feu and Teind duties payable to him for several years; Wherein Mr. Hugh Dalrymple Advocat, then Factor to, or Assigney constitute be the Viscount, was ordained to depone anent the possession and Quantity of the Rent, That a fifth part of the free rent might be decerned as the Teind, And their Chartors was ordained to be produced, that the Feu dutie might be instructed by the Redendo; There was a Summonds of Transfer­ring of the said Action raised at the Executrix instance and execute & after some com­muning, in order to a Transaction which took no effect: And particularly with Mr. Hugh who was so far from questioning Mr. Duncans Right to the Executrie, That he offer­ed him 6000 merks, or thereby for what was due be the Lord Staire to the Bishop before his deceass; But he would have it to be a part of the Transaction, That Mr. Duncan should accept of some bonds granted be Mr. Patrick Smith for certain summs payed to him, which Mr. Duncan refusing, in respect he did not think Mr. Patrick Smith Responsal, and that it would be so much lossed money to him, and that what was offered, was not, lookt, be Mr. Duncan, as the half of what was truely due, the communing broke up, at which time the said Mr. Hugh Dalrymple said to Mr. Duncan Robertson, these or the like words, Come, come, If you do not this, we will find a way to lay you aside. And thereafter the Viscount of Stairs had raised a suspension of multiply ponding against the Executers and nearest of Kinn, and others; The other two sisters, and their husbands (by advice of some of these Interessed) Raises, and insists in a Reduction of the Testament and Confirmation: And for us to denude in their favours of the [Page 2]right of the office of Exrecutrie, and to deliver to them all goods in our hands that was extant, and to Compt and Reckon for our Intromissions; And albeit the Re­duction was first raised in both the two eldest Daughters names, Yet the Summonds was thereafter cutted, and the second sisters name left out, in consideration, that she was in the same Case with Alison the youngest daughter, as to a provision by a Bond made by the Father, and found amongst his Papers, which the Eldest daughter made use of to exclude us from any share of the Executrie, the Eledest sister having first agreed with the second sister, for all her pretentions: So that the Action, at last was carried on in name of the Eldest sister; And after some debate upon the Reasons of Reducti­on in February 1692, Their was an Interloquitor Reduceing the Confirmation, and yet ordaining us to assign the same, & finding that the uplifting of the sūms, in the said Bond of provision was no alteration of the Defuncts will, in the Destinantion of the summs: Albeit done conform to an faculty therein, which the Defunct Exerced; And besides I the said Alison had many other good reasons to refuse the provision; And likewise my Father was so little carefull of my acceptance, as that he uplifted the summ in his own time, But thereafter upon a Petition given in be us. And Answers thereto be the said Eldest sister, The Lords declared they would hear the parties Debate the points in jure, represented in our Petition in their own presence, which were in short these. 1mo. By the Laws of this Realm, and the Lords constant and daily practique, This interest of Children and as nearest of Kinn is never taken away where there is neither an nomination of an Executor or any Generall or particular Disp [...]sition of the subject matter falling under Executrie, Unless the Children had renounce & discharg­ed not only the Bairns part or person natural, which is the Legitime: But all that they succeed to by their Fathers Deceass. 2do. What the import of this pretended Bond is as to its Narrative and Inductive Cause; And whether the uplifting of the summ therein do evacuat, make void or annull the same, as do the payment and uplifting of summs contained in Bonds. Securities make such Writes of no force nor effect. 3tio. Whether Mr. Duncan was oblieged in hoc statu processus, to debate anent the division of the Executrie, since there is a second Sister, who is neither compearing, nor called: It being the Geueral Interest, and good of all Parties concerned, that the Inven [...]ar be first discussed, and the Testament and Execute, seeing Mr. Duncan has found Caution, beyond Exception; And albeit we relyed upon the Faith of the Lords deliverance, And expected a Hearing upon these three points, yet upon the very last day of the Summer Session 1692, without hearing us upon the foresaid three points. there is minurs and Interloquitor made up Reduceing the Confirmation, and ordaining us to denude of the Executrie upon which there was a decreet of Reduction Extracted, and which last minuts and Interloquitor was must unwarrantable made up, in sua far as, first, The minuts were drawn, and Interloquitor made up out of the Parliament House by Mr. Patrick Smith and hit Procurators as Mr. John M [...]kinize the Clerk cannot Re­fuse: and is known to others Members of Court. 2do. It was the Last day and the last hour of the Summer Session 1692 Presented to the Clerk be the partie, or some other in their name by calling of him from the Inner house, to the side Bar, and urging him to Carry in, and present it to the President to get it signed, and when the Clerk scrupled they with enforceing arguements laid home to the Clerk, how he was no further con­cerned then to carry these minuts with the subjoined Interloquitor, so framed and prepared be them, and present the same to the President, which accordingly was sig­ned. 3tio. The said Mr. Duncan Robertson knowing nothing of that Interloquitor, nor yet his Procurators for many dayes in the vaccancie, and challang­ing the Clerk as being out of his duty, he answered, there was nothing extracted, and that he would not suffer to give any extract thereof without express order from the Lord President, who having some dayes thereafter ordered the Decreet, be vertue of that Interloquitor to be given out, we and our Procurators addressed to the Lord Presi­dent having the Clerk alongst with these made up Minutes and Interloquitor: Put in place of redressing as, my Lord President caused the Clerk transcrive the same [...]med Interloquitor, with the pretended Minutes at his own sight, in his own Chamber, and so privatly signed the said Interloquitor in time of vaccancie, as the Clerk cannot de­ny, [Page 3]and appears by the process, and the Clerk accordingly did give out an extract of the said Decreet, reducing and overturning the Testament, whereupon there follow­ed a transaction betwixt my Lord President, and Mr. Patrick Smith and his Spouse, whereby my Lord President as he acknowledged himself, is dischar [...]ed not only of these years preceeding the Bishops Death, but also of the Ann: Cropt 1688 from which it was not in Bishops power to seclude his Daughter Alison extending in all as the Bishop claimed 8799 lib: which with the Ann: makes now in hail 9427 lib: or thereby; And we have given in a Bill of Suspention upon the foresaid ground, the Clerk of the Bills, James Nicolson, refused to write any sist upon the same, in respect as be affirmed he was discharged to present any such Bill of Suspension, albeit in that sus­pention we offered Consignation, upon which we were necessitate to apply to the Lord Aberuchil then ordinar upon the Bills, that he might cause the Clerk write upon the said Bill, who having called the said James Niccolson, order­ed him to write upon the same, and not prevailing, The said Lord Aberuchil was necessitat to write the several fi [...]ts of Execution himself upon the Bill, and in the mean time ordained the Charger to see and answer the same, and because the said James Nicolson would not take in the papers offered to be consigned by the said Bill of Suspension, the Lord Aberuchil ordered us to bring the Bonds and other Writes concerning the Executrie to him, together with an Assignation subscrived by us, in or­der to be consigned in obedience to the Decreet, (I the said Mr. Duncan being under Caption) And his Lordship ordered the Papers together with the Assignation to be put in the hands of James Nismith Under Clerk, in the said Mr. John M'kenzies Chamber, and marked the Assignation with his own hand, and according to my Lord Aberu­chils Order, the Bonds with the other papers and Assignation, were delivered to the said James Nesmith as consigned papers in his hands, there to ly untill the Bill of Sus­pension sh [...]uld be discust before the Lords; And albeit the saids Bands, other Writes and Assignation to the Executrie were only consigned papers, and that the said Mr. Patrick and Archibald Smith Writer, his Son, having borrowed up the same from the Clerk upon trust, yet they immediatly within very few dayes thereafter, Registrat the Assignation in Mr. James Dalrymple Clerk hss Chamber, and that same day it was re­gistrat, Hugh Ross the Lord Presidents Servant took out an Extract thereof, besides several other Extracts that were taken out, as appears by a Declaration under the Clerks servant the Extracters hand, to be given to sever I other persons with whom the saidt Mr Patrick Smith and his Son had transacted, as having Right to the Executrie be vertue of the said Assignation, albeit both Bands, the other Writes and Assignation were only consigned as said is; And upon those Grounds we having raised Reduction of the said Mr. Patrick his Spouse their decreets. We the last Session obtained the same to be reduced most justly, and we were declared to have the only Right to the Exe­cutrie, By which Decreets the Lords likewayes fand, that the said Assignation, Bands and other Writes being only but consigned papers, they were unwarrantably taken up be the said Mr. Patrick and Archibald Smiths, and were as unwarrantably Registrat, and Extracts were ordained to be given back, and the principal Assignation again transmitted, and put in Mr. John M kenzies hands, and the Lords granted warrand to apprehend the said Mr. Patrick Smith till the same was done; And also he was ordained to [...]nd Caution for our dammages in eventu, But be having withdrawn and absconded himself, he could not be gotten that the Caption might be put in Execution against him, and albeit that order of the Lords was publictly intimat to all the Clerks, it hav­ing followed upon a Long Inner house debate: Yet notwithstanding and since that time, and of late, and before the principal Assignation was got transmitted, there was a new Extract of the said Assignation given out, which was a manifest contempt of the Lords of Sessions Authoritie, and by this means they have not only endeavoured to defraud us of the summ due be the Lord President, which as a foresaid amounts to 9427 pound, But also have uplifred and imbazled almost the whole Executrie, which was due be, and in the hands of the other Debitors, amounting to very considerable sums, so that albeit we are now declared by the decreet of Reduction to have Right to [Page 4]the said Executrie, yet by the Methods that has been taken, it seems these Decreets will be of little Effect to us; And seeing the Lord President asserts he has a Discharge, and that he made payment after the foresaid Decreet, so unwartantably made up, as said is; And that the Lords of Session, upon that account cannot meddle with the Re­ducing such a Discharge, so that its only propet for the Parliament to give Remedy in such a case.

It is therefore humbly craved, That your Grace, and Honourable Estates of Par­liament may be pleased to take the Premisses to your Consideration, and to grant Warrand to eite the Viscount of Stair, Lord President, the said Mr. Patrick Smith, and his Wife, and such other persons as we shall condescend upon, to exhibit and produce the foresaid Discharge, alleadged to have been granted be the said Mr. Patrick Smith and his Wife, to the said Viscount of Stair, Lord President, upon such a competent time as the Parliament shall think fit to hear and see the foresaid above Discharge reduced, and our Dammages repar­ed, And that the Kings Advocat who was formerly imployed in the Case a­bove written, may be ordained to plead and Consult in this Cause; Especial­ly seeing that probablie we cannot get payment from the said Mr. Patrick Smith and his Wife, The Gift of his Escheat being alreadie Gifted, and both be and his Wife being fled, and that they have imb [...]zled and conveyed away the Effects of the Executrie; And your Petitioner shall ever pray &c.