THAT where in the year 16 [...]5, Your Petitioners Father David Aytoun of Kennaldie, having granted a woodlet to the Deceast Robert Hamiltoun of Kinkell, of his Lands of N [...]ther Kennaldie, with the pertinents for 11500 Merks, and in the year 1644; The Woodset being Redeemed, the Deceast John Hamiltoun of Kinkell, who was Heir served, and retoured to the Deceast Robert Hamiltoun of Kinkell, his Father did Disp [...]e the said Woodlet Lands▪ and all Right he had thereto, in fa­vour [...] of the said [...] [...] ing Infest thereupon, has continued [...] of by himself, and your Petition­er: Who is Heir served and Retoured [...] the said year 1644, which is now 50 years, and upwards, without the least interruption whatsomever. And Alexander Hamiltoun of Kinkell, who is Heir served and retoured to the said John Hamiltoun his Brother, who was Heir served and retoured to the said Robert Hamiltoun their Father, did intent a Reduction thereof before the Lords of Council and Session, which a seen and returned. But because he found that the said Disposition is Prescrived, [...]o that he cannot quarrel the samen. He has given in a Petition to Your Grace, and the Honourable Estates of Parliament in most general Terms; wherein as he does not mention your Petitioners name nor interest, so neither does he condescend against whom the design of the Petition is; But most cunningly and subtily after representing some losses he had sustained in the Late Government for Ecclesiastical Non-Conformi­ty, by imprisonment, confinements, intercommunion, and other hardships, he con­cludes the Petition thus, That in regard he was exposed to the runing of Prescription during the time of his troubles, is may be declared by your Grace and Honourable Estates of Parliament, that fourteen years may be deduced from the years of Prescrip­tion (seeing as he pretends) during that time he was non volens agere. By which Con­clusion of the said Petition, it is evident that the samen is contrived not so much for Kinkels reparations of his sufferings in the last Government, as for exposing your Petitio­ner to new sufferings under this; Tho he may compare with him even in the last Govern­ment, being fyned in 2000 Merks, which he payed for his Absence from Bothwel-Bridge: And being put to great Expences by a Process before the Council, in declining to be a Militia-captain, immediatly before this happy Revolution; And if such a General Act as this should pass in his favours, without citeing this your Petitioner against whom the main design, Scope & Aim of Kinkels Petition runs; then your Petitioners Defence of undoubt­ed prescription, is altogether frustrat and elieded, and the Matter being of great im­port to your Petitioner, and of a dangerous preparative to others, who may be equal­ly concerned in the like cases, and might be totally ruined by such a generall Act. Therefore your Petitioner humbly beggs pardon to represent to Your Grace, and Ho­nourable Estates of Parliament, the Grounds and Reasons following; why the said Pe­tition and desire thereof cannot be granted. And, [...] There being a Reduction of the said Right, depending before the Lords of Session, they are sufficient and competent Judges to decide in matters of prescription, and to determine whether any years of Kinkels intercommuning should be allowed; But it is a thing alto­gether impracticable, by such general Acts to anticipate the Lords of Session their De­cisions, in Processes depending before them, especially when the Parties con­cerned are not called. 2do: The reason is evident, why Kinkel all this time did not insist in his foresaid Reduction because the Instrumentary witnesses in the Dis­position were then living, who were present when the same was Subscrived, and knew that the disponer was in perfect health and vigour of Body; And now they having dyed within these few years; And likewayes severall other extrinsick witnesses who were daily conversing with him, therefore he takes this oportunity, knowing the difficulty [Page] of finding a Probation in re tam antiqua, and if this had not been Kinkels design, what hindered him all the time that judge Ker his brother in Law was in Power, and one of he Judges of the Nation, and an eminent Lawyer, he did not then raise a reduction, when the matter was recent, and he could not pretend he was non volens agere. 3tio. If this Disposition were reduced, it would involve your Petitioner in upwards of 60000 Merks, and although he had several pursuits against him, both for relief of Cautionries, and other Debts, against which, he defended most litigously, and wherein there were four several Suspentions discussed, and several grounds of Compensation founded upon; Yet never a word of this Debt, which certainly he would have done, if there had been any just ground therefore, both considering the greatness of the Summ, and Kinkells bad circumstances, his Estate being totaly ruined by Debt these many years by gone: Like as after your Petitioner had prevailed by obtaining Decreets of the Lords; He dis­poned several others of his lands in my favors, in satisfaction of the summs discerned; As also [...] single and liferent Escheat, for his further security of the new conquest, did obtain Decreets of General & special declarator against him after most litigious debates, & during all the time of the dependence of these proces­ses, there was never so much as mention made of this Reduction. 4to. If the point of prescription were to be discust before the Lords of Session, before whom the Reduc­tion is depending. It is conceived, that there could be no pretence why Prescription should not run, during the time Kinkel was confined to the Town and Suburbs of Edin­burgh, where he had Liberty to pass and repass for many Years, So that he being resi­dent in Edinburgh, and never being so much as denounced for not appearing, cannot be presumed that he was in the Terms of an Intercommuning, but might certainly have raised a Sumonds, and given a Citation, which would undoubtedly have stooped Prescription. And in the year 1684, your Petitioner having pursued Kinkel and his Tenants before the Stewart of the Stewartry of St. Andrews, he did then Advocat the cause, & did many other Acts in the years of his pretended Intercommuning, So that in some Cases, it seems he was Valens agere, but in this Case he designed not to be, but by his own dilict, has undoubtedly designed to take advantage of your Petitioner. And it is impossible, That in Law or Justice, there can be Deduction of years, that he was under the said Imprisonment, Confinement, or willful and designed lurking up and down the Countrie, occasioned chiefly by Captions, for Civil Debts, not yet pay­ed, nor removed; And under which Captions Kinkel yet lyes, during which time no­thing could hinder him to have raised a Process of Reduction against your Petitioner. By all which it is evident, That he has had a design against your Petitioner, to bring him to unnecessary Trouble, Charges and Expencess

In Respect of all which, It is Humbly craved, That my Lord Commissioner his Grace, and Honourable Estates of Parlia­ment, would be pleased altogether to Reject the said Peti­tion, at least the last part thereof, relating to Prescrip­tion, wherein your Petitioner is so much concerned, and the samen relating to a Process depending before the Lords of Session; Or otherwayes to allow me to be heard before any such general Act pass in Favours of Kinkel, In Case your Grace, and Honourable Estates of Parliament should think fit, to take the samen to your Considerations.