IT is manifeſt by what is Repreſented by the Collonel, that the ſaids Captains have no ground to crave any Money (under the cover of being the Remains of the Retention) either from the Lieutenant-Collonel or Agent, and that both of them ought to be Aſſoilȝied from the Complaint by all the Rules that can be called Law or right Reaſon.

The Collonel as ſuch has Right to the Superplus of the Retention, for defraying the contingencies of his Regiment: Eſpecially being in Gariſon at a Poſt where he was in ſome manner both a Civil and Military Governour, and ſuſtained the Charge of both with very notour prudence and Loyalty.

The Collonel Exerciſed his Right by Ordering this Money to be payed without any other Rule or Reſtraint than his own Diſcretion. But his Generoſity and Indulgence in giving a part of it at ſuch Occaſions as he thought fit to his Officers, would now be distorted by the Complainers; So as to Retaliat his Goodneſs with his Loſs, and the Damnage of the Lieutenant-Collonel, whoſe faithful Services and Expenſes for the common Intereſt, the Collonel did fairly Re-pay or Advance.

Such a Precedent would reach Numbers of other Perſons under pretence that they had got Shares of the Retention: By which their would be a Foundation laid for the Captains and their Succeſſors againſt als many Receivers, and their Repreſentatives, as would make up a new Regiment.

But as the Collonel had not only the Sole Right, but likewiſe the Sole Adminiſtration of the Retention Money, as appears by his being the only Perſon who drew Orders on, and gave Diſcharges to the Agent thereanent, (the Captains even when they got benevolences never having given one ſingle Receipt) ſo the ſaid Collonel Imployed the Lieutenent Collonel on the publick Buſineſs, gave him his Instructions, Examined his reports and Expenſes, approved his management, allowed his Bills, ordered his re-imburſement, and finally gave Diſcharges to the Agent thereupon. Whence it is not poſſible even in Imagination to make ſuch a view of the matter as either the Lieutenant-Collonel or Agent can be reahed.

Yet the Complainers have been pleaſed to give in a ſpecial Claim to the Right Honourable The Committie of Council, (to whom the Affair was remitted) alledging that the Excreſcence of the Retention Money was not Divided as it ought, and was in uſe to be done there being a great part thereof given to Lieutenant-Collonel Forbes, whereof theſe ar • the Particulars, viz. 1, In the account of Retention from April 1694, to April 1695 (recovered from the Agent) there is ſtated per Bills advanced to the Lieutenant Collonel 410 lib. 13. ſs. 3. d. Sterling. 2. From April 1695, to April 1696, 227. lib. 10. ſſ. 5. ds. Sterling: After which the Words as per Receipt are preſently razed. 3. From April 1696, to April 1697, 115. lib. Sterling given to him. 4. From April 1697, to April 1698, by Bills to London 720. lib. Sterling. 5. By two of the Books produced, the Agent Charges himſelf with the Lieutenant Collonels monthly Pay. And then ſays, Item, 30. libs to, &c. Which argues a fraudulent concealment, from whence they intend to conclude that the Lieutenant Collonel ought to be Decerned to repeat, or the Agent to make over again a ſecond Payment: But at the ſame time theſe Gentlemen forget the Lieutenant Collonels riding Poſt Four Thouſand Miles in the Regiments ſervice and advantages to the value of more as Five Thouſand Pounds ſterling obtained to the Regiment by his Means! Howevere.

It is Anſwered, that the Lieutenant Collonel, and Agent ought to be Aſſoilȝied by all the Land marks of Law and Form, which our Predeceſſors have ſet for enſureing the Safety of the Leidges. In ſo far as

1. All that can poſſibly be Claimed by the Captains, is comprehended either under their ordinary Pay, or their pretence to a Share in the Retention.

Their pay is fully Diſcharged both by themſelves and the Collonel: And the Collonel has ever ſince the firſt Eſtabliſhment Solly by himſelf given ample Diſcharges of the Retention to the Agent: Which proceeded upon allowance of the Articles Deburſed to the Lieutenant Collonel, and conſequently includes likeways a Diſcharge to the Lieutenant Collonel, beſides his ſeparat Inſtructions which he has thereof.

Theſe Diſcharges are a Braſen Wall againſt which all Attacks are vain, and are an Hercules Pillar beyond which none can go, till the Lords of Seſſion do Reduce them. For by our Law a valid Writ, not labouring of an Intrinſical nullity muſt ſtill while it ſtands take its effect, (eſpecially when there is no Ryot or Breach of the Peace can be pretended anent it) ay and while it be anulled by their Lordſhips, before whom Dyets not being perremptor, His Majeſties Subjects will get time and means of Probation for Defence and Support of their Rights.

It is not doubted, but if the Complainers had Informed their Lawyers of the Tenor of theſe Diſcharges, whereby the Affair reſolves purely into the Diſcharging of privat civil Rights, they would never have preſumed to divert the Lords of His Majeſties moſt Honourable privy Council, from the greater and publick matters of the Nation, either with Complaint or Compt and Reckoning. For however Officers in time of War, or while they ſtand undisbanded, may have extraordinary Remeids that they may not be drawn away from their Poſts; yet theſe Gentlemen having returned to their privat Stations, there is no Law for exempting them from Common Rules; eſpecially conſidering what they might have known the Councils mind by their Lordſhips not allowing the Addreſſes on the like accompt of the then Lord Lindſay, and Collonel Buchans Officers to be ſo much as in the leaſt inſiſted upon.

2. Suppoſe (which is a great poſtulatins) that the Collonels Right to grant theſe Diſcharges were now to be canvaſſed: His Right to the Remains of the Retention at the leaſt after the Incidents of the Regiment are Diſcharged, is fully Eſtabliſhed by the nature of the thing, by His Majeſties Deciſions, by the Councils Authority, by the Common uſage and cuſtom not only here but every where elſe; and finally by the inextricable abſurdities that would follow in a contrary event. Neither are their any Specialities that can diſtinguiſh the preſent caſe.

The other Officers received all the Pay appointed to them by the Eſtabliſhment through the hands of the Collonel, who drew Orders and Precepts for the ſame on the Agent: So that whatſoever is not expreſly appointed to the Captains by the Eſtabliſhment, (as the Retention is not) Remains with the Collonel, and he may retain it, and they have no Title to ſeek it.

The Common uſage, even in this ſame Regiment, that all Orders for the Agents paying of Money are given by the Collonel, that Accompts are made to him, that Diſcharges are taken from him; That the Captains Diſcharges even of their ordinary Pay are preſented to him qua instructions: And that the Captains do not ſo much as grant either Diſcharge or Receipt for Retention; yea, the Gratuities they got of it were payed in Caſh without Receipt: Laſtly, that the Collonel Diſpenſed the Remains of Retention, without any Barr to his Inclinations, as to time, manner, or Perſons: are more than ſufficient Evidences that what ever he beſtowed of the ſaid Money after the Services of the Regiment, was •• t of pure Benevolence.

If it were otherways, Collonels and thoſe of the Leidges who deal with them would of • ll men be the moſt Miſerable. For preſently Captains and their Heirs would not only •• peat the whole Retentions any time within 40. years from the Collonels and their Poſte • ty: But likewiſe, any Conjunct or confident Perſon that got Money from them upon Pre • epts on their Agents muſt lay down, unleſs they have keeped the Inſtructions of the onerous • auſe for what they Received.

Sir John Hills Captains themſelves have ipſo facto acknowledged, and Homologate his • y accepting unequal Shares from him, and by granting Bonds, which a Man would ne • er do for his own: as appears by the Inſtances ſet down in the Condeſcendance of inſtru • tions ſubjoyned to the Collonels Petition: As it is certain that while the Regiment ſtood, • he Complainers never dreamed of Challenging their want of former years Shares, which is a •• ſt Defence againſt them when • it is Diſbanded.

Without further reaſoning on this Matter, it is known to the Lords of His Majeſties • oſt Honourable privy Council, how His Sacred Majeſtie has always thus Determined, and • ow their Lordſhips did Reject the Petitions of the then Lord Lindſay, and Buchans Officers before-mentioned.

But the Complainers knowing that they want things muſt invent Names and call their Caſe a ſpeciality. Yet it is moſt certain that no Vail can cover it from Juſtice.

It is indeed pretended, that tho in the common caſe the Collonel may have the Retention, yet their honeſt Collonel has abandoned his Right by his uſe and Cuſtom of Communicating with them, which is Inſtructed ſcripto by two ſeveral Writs, viz. One in 1694, whereby he ſays in regard my Officers have been at great Expenſes in Recruits after ſo many Draughts, and other conſiderable Charges in this Dear and unwholeſom place you are hereby Ordered, (viz. the Agent) to pay our the Sum of 1400 lib. ſterling which is in your Hands of Retention, according to an Agreement made concerning the ſame, (At which time two of theſe Gentlemen were not Captains, and had they been, it is preſumable, their Proportions of the ſaid Dividend had been but ſmall conſidering the onerous Cauſe of the ſaid Gratuity, and the Complainers their deſerts, which are enumerat in Collonel Hills Letters, to my Lord High Chancellor, and my Lord Teviot, but both good Nature, and Manners makes the Lieutenant-Collonel forbear Particulars.) And Which Order of Agreement, Major Forbes will give you &c. and on the Back thereof Major Forbes ſays, you are to pay the within written Sum, 200 lib. to the Collonel, 100 lib. to each Captain, except Stuart and Hunter, whoſe Shares are to be burdened with 20 libs. to Caplain Cathcart, and 20 libs. to Richardſon, &c. The other in 1695, ſays I deſire you to allow Lieutenant Collonel Hamiltoun, 50 lib. ſterling over and above the 100 lib. allowed to him at the laſt Diviſion of the 1400 lib. ſterling among the Officers. &c.

But before making particular Anſwers, the Complainers would be pleaſed to mind, that the Collonel in the firſt part of the foreſaid order 1694, ſays, That complaints were made to him, how ſeveral perſons who had no right to draw upon, or meddle with the Retention Money, do draw upon that Fond upon which he was cenſured as guilty of neglect in that which was peculiar to his post: therefore he requires the Agent that he anſwer no Bills, Orders, or make payments of Money upon that Fond, but ſuch as come to you from my ſelf under my own hand: with this aſſurance, that no other Bills or payments ſhould be allowed in Accompt. After which follows the preciſe words above ſet down anent the 1400 lib.

Hence it is Anſwered.

1. That the alledgance is not inſtructed, but further, the quite contrary is plainly proven. For the Collonel vouches his Right, and that non without his ſpecial order ſhall draw on, or get any Money out of the Retention. They accept of this Paper with this quality, and can never approbat and reprobate the ſame Write. It bears that even the 1400 lib. was diſtribute upon a ſpecifick Accompt, viz. Their Expences about that time in Recruits, The Precept 1695, in favours of Hamilton, calls what he got an allowance: and the diviſion of the 1400 lib. likewiſe an allowance to the Officers; Which plainly implyes that it was only a temporary and precarius grant, quoad theſe particular Sums: eſpecially conſidering that it adds this ſhall be your warrand, without further receipt.

2. It is a method of arguing that is indeed new (which is the only ſpeciality in the caſe) he that deals a part of his excreſent rents in almes muſt give the whole: And a weekly 〈◊〉 day muſt be continued for ever: A given Horſe (againſt the old Scots Proverb) muſt 〈◊〉 looked in the teeth. Gratifications which were always eſteemed to be strictly interpr ••• muſt henceforth be Stretched beyond the ſubject gifted, yea beyond all bounds. Lib ••• lity muſt be frighted, by making it of all that a man hath, if he let out any indication • his generous mind. There muſt be no moreſuch a thing as the Lawyers call res merae faculi •• but all now muſt run to nece • ſity and bonds: 3. Theſe papers do ſufficiently Interpret th •• ſelves without any ſuch comments as deſtroyes the Text. For the agreement mentioned the order 1694. is called an order of agreement, and expreſly referred to be told by M • Forbes, and Major Forbes on the back of the ſame Write tells and ſigns as is above rep •• ſented,

There is another piece of new Logick introduced by the Complainers, viz. The Ag •• accompt of the Retention 1693, is docketed thus, 'I Captain James Stuart being orde • by the Collonel to reviſe the above-written Diſcharge, do certifie that I have examined Accompt and credentials, &c. As alſo the Collonel in a docket of the Accompt from 1 • to 1698, ſays the above written Accompt being viewed by my Officers, and peruſed me are found to be juſt and are allowed by me. Ergo the Retention money belongs to 〈◊〉 Officers,

It is Anſwered, the conſequence is denyed. And otherwiſe a compter might put up Money in his Pocket, becauſe he is imployed by the maſter of the Money to reviſe the compt. In a word the Collonel is a good man, a lover not only of a correſpondence twixt Friends, but likewiſe of his own eaſe: and therefore it is no marvel, that he took Officers aſſiſtance in that, as well as his other undoubtedly peculiar buſineſs. But it's a • monſtration, that theſe very things do prove the right to have been owned in the Coll • in ſo far as, 1. The Officers had orders from him, and he that does by another doe • himſelf. 2. The Write bears that they only viewed, but he alone allowed.

3. Suppoſe (which is ſtill more and more) that the Diſcharges were to be aſſaulted, the Collonels right not found to be good: yet neither Lieutenant Colllonel nor Agent be lyable, becauſe quoad the Agent he has made bona fide payment by his Conſtituents o • and as to the Lieutenant Collonel ſuum recepit, he has got but what was due to him by conſtituent, viz. The Collonel, and he neither did nor was obliged to enquire, out what part of his Debitors Eſtate (whither his own pay or other effects) this Caſh did proc ••

For clearing whereof, it may be conſidered, that the common intereſt of mankind 〈◊〉 made this a principal in all Nations, mobilia non habent ſequelam. fluxile Moveables, ( 〈◊〉 eſpecially Money) paſſes without any burden of the laſt Poſſeſſor, his perſonal oblidgments, commerce neceſſary betwixt man and man requires, that there be not Flood-gates ope • to Pleys for repetition of Money pretended to be wrongfully diſpoſed. This Money 〈◊〉 not ſtamped with the word (Retention) upon it, and whatever way the Collonel and ge • t might have cleared among themſelves, in placing Deburſments to one Accompt, rath than another: yet the Lieutenant Collonel is no ways concerned out of what Fond his Expences were furniſhed, and it had been Impertinence in him to have asked the Collonel 〈◊〉 Queſtion.

As this principal is founded in nature and neceſſity, ſo the other that qui ſuum recipit is 〈◊〉 obliged to refound, Is no leſs plain in Law: as has been lately cleared by the Lords of S •• on in a famous Deciſion, upon a remit of Parliament, betwixt Hope of Kerſs and Mu •• of Spot. But ſo it is that the Lieutenant Collonel was imployed by the Collonel, and 〈◊〉 proven of him by repeated approbations under his hand herewith produced, which cli •• him in all the undertakings which he went about with ſo much fatigue, and even ſuperp •• Expences out of his own Pocket for the publick good: and conſequently he who ſet 〈◊〉 on work was bound to pay his Wages, and ſuch an honeſt maſter did never fail to 〈◊〉 them.

Its no ways to the purpoſe, that the Lieutenant Collonel might have done ſome of 〈◊〉 own buſineſs in the intervals, but always without prejudice of theirs. For no Senſe or Reaſon can improbat any ſuch induſtery for a mans ſelf, when no other is indamaged by it: a • his imployer and Collonel has been ſo far from thinking otherwiſe, that he has fully app •• ven the Lieutenant Collonels faithful diſcharging of his Truſt.

4. As to the particular condeſcendence, the Lieutenant Collonel and Agent are no wa • concerned to make any Anſwer thereto; becauſe they moſt humbly conceive that th • three ſeparat grounds before repreſented, are more than ſufficient to exoner them without entring to detail.

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