Answers for Alexander Hamiltoun of Kinkel, to the petition given in be way of answer, for John Ayttoun of Kinaldy against him.

Answers for Alexander Hamiltoun of Kinkel, to the petition given in be way of answer, for John Ayttoun of Kinaldy against him.

Table of contents

Answers for Alexander Hamiltoun of Kinkel, To the Petition given in be way of Answer, for John Ayttoun of Kinaldy against him,

[Page]

Answers for Alexander Hamiltoun of Kinkel, To the Petition given in be way of Answer, for John Ayttoun of Kinaldy against him,

THE said Alexander Hamiltoun of Kinkel having given in two Petitions to his Grace, and the Honourable Estates of Parliament, the one whereof was General, and the other Special condescending upon the Right and person, in relation to which the clause in the General act anent prescriptions is craved to be extended. Kinnaldie gives in a Petition by way of answer, wherein he represents, that the Right of Woodset condescended upon in Kinkels second Information was Redeemed; But that not being hujus loci, all that I shall say, is, that it was no other wayes Redeemed than by elicting upon Death-bed, the Discharge and rennonciation condescended upon in my second Petition, and that for no Onerous cause, as shall be made appear in due time.

In the nixt place, he gives particular reasons why the desire of my Petitions should be refused; And 1 mo. Because there being a Reduction of the said Right depending before the Lords of Session, who are Judges competent. It is impracticable to anticipat their Decisions when the parties concerned are not called.

To which it is Answered, that the Authority of King and Parliament is Soveraign, and cannot be declined, nether is it impracticable or unusual for that Honourable Court to re [...]one person [...] losed in th [...] [...] oppresive [...] against the saids opp [...]sions, and ru [...]ing consequences thereof▪ and that either by General, or special Acts, and without any regard, whither the same by consequence, may be prejudicial to causes depending before the Lords of Sesion or not; And even without Citation, or hearing of parties, which was imposible by reasons of the vast number of Donators, and such others, and also was needless, in regard that by such a Restitution against the Injustice of Arbitrary Power, no particular persons Right was directly impugned; And it is clear by the General Act anent Fines and Forefaulturs, and several particular Acts in favours of Forefaulted persons, for repetition of the bygone Rents of their Lands; And the King and Parliament are the only competent Judges in many such cases, in respect the Lords of Session, and other inferior Judges being more strictly oblidged to the Letter of Law, are not capable to give persons oppressed a Just and full redress.

Although it is humbly conceived, that in this case, the Grounds of Comon Law would stop the course of prescription while Kinkel was non valens agere, if the mentioning of shorter prescriptions only in the foresaid clause of the General act did not make the case more doubtful, although it is very probable that there being the same reason of equity for discounting the foresaid years of oppression in long prescriptions, that the mentioning of shorter prescriptions was not intended by way of Restriction; But because there was greater ground to doubt as to them, or because these short Prescriptions were only under the Parliaments view, as a case wherein greater numbers of people might be concerned, and therefore Kinkel has good ground to apply to the Parliament for explaining, & extending the said Clause; and also Kenaldies complaint of this [Page] method as singular as groundless, especially seeing the same was actually done in a case betwixt the Earl of Airly and Sir John Damster, and that there is the same Reason in long and short prescriptions, as said is; As also, seeing Kinkel was obliedged to make a particular Condescendance, to the effect Kinaldy might give in his Answers, which he has accordingly done, and which supplies the want of a Citation.

To the second Reason it is answered; It is most groundless for Kinaldy to alleadge, That Kinkel delayed to insist in this Process, until he was sure of the Death of his Witnesses insert in the Renounciation. Seeing 1mo. The true Reasons of delay, were his bad Circumstances the time, and because Kinkels papers, when his house was Garisoned were robbed, and he could not have access to them, until a little before the intenting of the said Reduction, as also he is clear to depone that he never saw the said Renounciation, nor knew any manner of way who were the witnesses insert therein. 2do. Kinkel has proven his reason of Reduction, ex capite Lecti by witnesses yet living, & beyond all exception. 3tio. As Kinkel could not then foresee such a happy Change by which he might Exspect more impartial Justice. So no man can imagine, he would have suffered prescripion to run against him, If he had been in the least Measure valens agere; And where it is alledged there was nothing to hinder Kinkel from intenting this Reduction dureing the Lifetime of his brother in Law, Judge Kerr.

It is Answered, that as Kinkel was then stated with Kinaldy instigat the Arch-Bishop to persecute him, and took from the Bishop the gift of his Escheat about the time he was under an Process of excumunication, and Kinkel being ingadged to Kinaldy upon the account of Cautionrie, and under summar execution for several summs, and further his affairs being otherwise perplexed: It is a frivolus inference from Kinkels for bearing in such an unfavourable Junctur to ingadge in a tedious and expensive pursuit to conclude that he was conscious of the injustice of the Plea, Especially considering that he knew there were 20 Years of the Prescription then to run during which space, and at any time therein he might have pursued as certainly he would have done, If he had not been Debared by the Legal incapacity the violence of the time brought him under.

To Kinaldies 3d reason, it is Answered, he thereby clearly Insinuats which he exptesly confesses in other parts of his Petition, That he has no other defence to appone to Kinkels just claime: But that of prescription which being in it self a little not very favourable, is in this particular case wherein a great number of these years ran against Kinkel when he was non valens agere, as said is most odious and unjust, and therefore no regard ought to be had to the representation he makes of the great loss he will sustain by reponing of Kinkel, Seing on the other hand Kinkel has lyen under the pressure of the said loss ever since the granting of that renounciation, and if Kinaldy be involved in 60 Thousand Merks because he is forced to testore to Kinkel a part of his own which he has so long Possessed upon an invalid tittle neither Kinkel nor the judges are to blaime.

And as to his alledgance, That if there had been any Just grounds for Kinkels claming this Summs he would have objected it by way of compensation in several pursuits at Kinaldies Instance against him, and would certainly have mentioned it when he disponed his other lands to Kinaldy in satisfaction of these Debts; as also when Kenaldy obtained Decreets of General and speciall Declarator of Kenkels single and Lifere [...]t Escheat.

[Page]It is answered. That these pursuits were for liquid debts and could not be compenced by the summs contained in this Woodset, until Kinkel had first obtained a Reduction of the foresaid Renunciation, and after that he had intended a process of Compt and Reckoning, and thereby stated a Liquid summ due by Kinaldy upon the account of the Woodset; which being a long and expensive process: It is clear the same could not be soon discussed as to furnish Kinkel with a defence of Compensation against Kinaldies more summar pursuits, as also these very pursutes which Kinaldy did rigorously and unmercifully prosecute against Kinkel with the bad circumstances he was under the time by the Bishop of St. Andrews, his persecution did reduce Kinkel to so great Extremity: That he was hardly able to maintain his Family with Bread, and no wonder if at that time Kinkel thought it not fit to engadge in tedious and expensive processes, Especially considering that at that same time under a process of Excommunication at the Arch-Bishop Sharp's instance, at which time Kinkels Escheat was gifted to Kinaldy, who joined with the Bishop in persecuting Kinkel, in the redeeming whereof it was upwards of 3500 Merks, during which severities Kinkel was forced to remove from his own house to live at a great distance from the Bishop, and was shortly after denunced fugitive by the Lords of His Majesties Privy Council for not compearing when cited for Ecclesiastick Non-Conformity, and it is easie to judge if Kinkel under such circumstances had great Encouragement to enter into an expensive process against one so well stated as Kinaldy was at that time, for the stories Kinaldie tells of his own sufferings, I shall not trouble His Grace and this Honourable Court with the true account of the Matter of fact, which would be little to Kinaldies Credit, only it is clear he was not fined for refusing to be a Militia Captain; But on the contrar did accept and exercise that Imployment though indeed he was fined some time after for having cowardly deserted when there was Appearance of Action.

Kinaldies fourth Reason for refusing the desire of my Bill is, That during the time of Kinkels Confinement to Edinburgh, and when he was so much as under a Denounciation or intercomuning, he might have raised a Summonds & given a Citation, which would have stopped Prescription, and that in the year 1684 the time of Kinkels pretended intercommuning, he did advocat a Cause at Kinaldies instance against him, and did several other Acts.

It is answered, 1mo. I am not seeking Deduction of any years wherein I was only confined, but only during my intetcommuning and Inditement. 2do: It is denyed that in the year 1684. I was valens agere, it is true indeed that Kinaldy having at that time raised a Process against me & my Tenents, an Advocation was exped in their Name, which could not have been in my own, seeing being denounced and intercommuned, no Lawyers could at my instance have mannadged that, or any other Process, as also I had not personam standi in Judicio upon the accounts foresaid.

It is further represented for me, that Kinaldie is ungenerous, so frequently to mention my debts, seeing the other Estate belonging to my brother who granted that renounciation in favours of Kennaldy was transmitted to me with the Burden of the said debts.

And seeing by the grounds of the common Law, and upon the same reason that his Majesties Commissioner for the time, and the Honourable Estates of Parliament, reponed persons lesed against shorter prescriptions, they ought also to be reponed against long prescriptions; And seeing Kinkel is able to depone▪ [Page] that as soon as ever he was Master of the foresaid Woodset, which was carried away with the rest of his Writes when a Garison was put in his house, he sent it to his Writer, to the effect he might raise summonds of Reduction, which furder clears that the only reason of Kinkels forbearing this Process so long, was his not being in a cappacity to prosecute it.

May it therefore please his Grace the Lord High Commissioner, and the Right Honourable Estates of Parliament, not only to repone Kinkel against so many of the years of this Prescription, as run against him while he was not valens agere by reason of Denounciation intercommuning and a Process of Treason depending against him; But also to give some effectual relief to his swae distrest and ruined Familie, in compensation of his grievous and long sufferings.

Information about this book

Title statement

Answers for Alexander Hamiltoun of Kinkel, to the petition given in be way of answer, for John Ayttoun of Kinaldy against him.

Hamilton, Alexander, of Kinkel, fl. 1695.

Edition statement

1695

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI ; Oxford (UK) :

Date

2009-03 (EEBO-TCP Phase 1).

ID [DLPS]

B01410

ID [STC]

Wing A3463AA

ID [STC]

ESTC R172385

ID [EEBO-CITATION]

52211674

ID [OCLC]

ocm 52211674

ID [VID]

175406

Availability

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.

Series

Early English books online.

Notes

(EEBO-TCP ; phase 1, no. B01410)

Transcribed from: (Early English Books Online ; image set 175406)

Images scanned from microfilm: (Early English Books, 1641-1700 ; 2732:24)

Source

— Answers for Alexander Hamiltoun of Kinkel, to the petition given in be way of answer, for John Ayttoun of Kinaldy against him., Hamilton, Alexander, of Kinkel, fl. 1695..

Extent

4 p.

s.n.,. [Edinburgh :: 1695]. (Caption title.) (In response to: Aytoun, John. Unto His Grace, His Majesties High Commissioner, and the Right Honourable the Estates of Parliament the petition of John Aytoun of Kinnaldie.) (Imperfect: creased with some loss of text.) (Reproduction of the original in the National Library of Scotland.)

Creation

Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford.

Editorial practices

EEBO-TCP is a partnership between the Universities of Michigan and Oxford and the publisher ProQuest to create accurately transcribed and encoded texts based on the image sets published by ProQuest via their Early English Books Online (EEBO) database (http://eebo.chadwyck.com). The general aim of EEBO-TCP is to encode one copy (usually the first edition) of every monographic English-language title published between 1473 and 1700 available in EEBO.

EEBO-TCP aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the Text Encoding Initiative (http://www.tei-c.org).

The EEBO-TCP project was divided into two phases. The 25,363 texts created during Phase 1 of the project have been released into the public domain as of 1 January 2015. Anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source.

Users should be aware of the process of creating the TCP texts, and therefore of any assumptions that can be made about the data.

Text selection was based on the New Cambridge Bibliography of English Literature (NCBEL). If an author (or for an anonymous work, the title) appears in NCBEL, then their works are eligible for inclusion. Selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. In general, first editions of a works in English were prioritized, although there are a number of works in other languages, notably Latin and Welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so.

Image sets were sent to external keying companies for transcription and basic encoding. Quality assurance was then carried out by editorial teams in Oxford and Michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet QA standards were returned to the keyers to be redone. After proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. Any remaining illegibles were encoded as <gap>s. Understanding these processes should make clear that, while the overall quality of TCP data is very good, some errors will remain and some readable characters will be marked as illegible. Users should bear in mind that in all likelihood such instances will never have been looked at by a TCP editor.

The texts were encoded and linked to page images in accordance with level 4 of the TEI in Libraries guidelines.

Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements).

Keying and markup guidelines are available at the Text Creation Partnership web site.