OPPRESSION UNDER THE COLOR OF LAW, OR, MY LORD HERCARSE HIS NEW PRATICKS  
As a Way-marke for Peaceable SUBJECTS to be ware of Pleying with a hot Spirited Lord of the Session, so far as is Possible when arbitrary Government is in the Dominion.  PROVERBS 20. verse 21. 
An Inheritance may be gotten hastily at the beginning, but the end thereof shall not be Blessed.  
Published by Mr. ROBERT PITTILLOH, Advocate.  
LONDON, Printed in the Year MDCLXXXIX.   

OPPRESSION under colour of LAW, OR, My Lord HERCARSE his New Practics; Published by Mr. Robert Pittilloch Advocate.  
As a way to make for Peaceable Subjects to beware of pleying with a hot Spirited Lord of the Session, so far as possible, when Arbitrary Government is in the Dominion.  Proverbs 20. verse 21. 
An inheritance may be gotten hastily at the beginning, but the end shall not be blessed.  
WHiles in my Solitary thoughts, I began to consider the Nature of Justice, (which consists in individno) reckoned by the Learned among the principal Cardinal Virtues, and of Judgement, which is the Lords, and of the long tract of Judicial sentences passed against me, in an Affair depending against me, at the instance of Alexander Ayton of Inchdarnie, or rather at the instance of Sir Roger Hodge, personated by Inchdarnie his Son in Law, and how the weakness of my Judgement could not comply with the said Procedure as just and justifiable either in the Root or Branch: I conceived it most agreeable to my Duty, to expose the same to the view of the World, that persons judicious and impartial may either convince me to a full Submission, if I be wrong, or the Authors of my suffering to change their course; Seeing in the multitude of Counselours there is Stability: And as that Noble young Man, Elihu said, Wisdom is not always with the Ancient, nor understanding with the Men of days, but there is a spirit in Man, and the inspiration of the Almighty giveth knowledge. However, seeing he that doth Truth comes to the Light, that his deeds may be made manifest, they are wrought in GOD. I hope none has reason to be offended with the open and plain laying forth of the Truth in this matter.  
And therefore to come to the purpose, The case is thus, in Ann● 1648 Lieutenant General Ruthven then Heritor of the lands of Killernie, and Andrew Wardlaw appearand Heir to the said's Lands, and Reverser upon the payment of 17500 Marks Scots borrowed from Archibald Stuart. Brother German to the than Laird of Rosesyth 6000 Marks, and from Alexander his Brother 4000 Marks, for which the said Lieutenant General, Andrew Wardlaw the Appearand Heir, and Margare● Wardlaw his Sister, than Spouse to the said Lieutenant General, gave to each of them an heritable Bond, obliging themselves conjunctly and severally ●o make payment to them of the said Sums, and all current Annual Rents; And for their better security, obliged themselves with one Consent and Assent, to Infeft each of them, in an Annual Rent corresponding to their respective sums, to be uplifted forth of the said's Lands. Hereupon by virtue of the precepts contained in them, the said two Brethren obtained themselves infeft severally in the saids Lands, the 26 of May thereafter; And received from Leiutenant General Ruthven, one years Annual rent of the said sums, from the date of the Bond, till Whitsunday 1649. Margaret Wardlaw her Husband dying shortly thereafter, Andrew Wardlaw the Reverser entered in possession of the whole Estate, by the tolerance of the two Brother's Creditors; the Law being patent to them to have exacted their Annual Rents, in regard Margaret Wardlaw the Conjunct Fire was unwilling to stop them; and Andrew Wardlaw her Brother had no pretence to impede them. But the said two Brothers complying with Andrew Wardlaw, and intending to bend all their forces against Margaret the Conjunct Fire, charged William Ruthven lawful Son and appearand Heir to Lieutenant General Ruthven to enter Heir to his Father, and she obtained Decreet against him: They charged Margaret Wardlaw then a Widow, to make payment to them of the principal Sums, bygone Annual Rents, and Penalty; And likewise, they charged Andrew Wardlaw, but never insisted against him, to the outmost Diligence, though he never suspended them, and was in possession of the whole Estate But Margaret Wardlaw was forced both for her Son William Ruthven, and for herself to suspend their Charge; And so far was she from impeding them to uplift the Annual Rents, that this is one of the principal Reasons in her Suspension, That the Chargers were abundantly secured in their Annual Rents, by their Infeftments; and that they or some others in their names were in possession. Which she had Reason to presume upon the Tolerance abovementioned. And the Reasons in her Sons is, He being a Child, the Lands were patent, for appryzing, and he had no other means wherewith to satisfy them.  
The Sums being thus rendered movable by the Charge given to Andrew and Margaret Wardlaws, personally obliged to make payment; and the Decreet obtained against William Ruthven her Son: Archibald stuart in May 1654., assigned his sum to Alexander his Brother, Principal and Annual Rent and Penalty, with the whole Heads and Chooses contained in his Bond, and Instrument of Seizing following thereupon; Whereupon in June 1654., the said Alexander apprised the said's Lands, for Principal, Annual Rents, and Sherriff-Fie; and obtained himself Infest upon his Apprising under the great Seal; but never insisted either for their Annual Rents, or for Nails and Duties, so long as their Comorad Andrew Wardlaw was in possession: Knowing that the Ground was liable to them for their Annuals, and they being Young Men having no Charge but themselves, living with their Mother, who entertained them on her Charity. Hereupon Margaret Wardlaw seeing that a daily burden was running on upon her Conjunct-fie Lands; and that she had got nothing, but was forced to live upon her Credit: Warned her Brother to remove, and at length after much Opposition obtained a Decreet of Removing against him, but never made use thereof till the year 1656, after that he and Mr. Robert Pitt. Iloch her present▪ Husband had several Friendly communings upon the Affair, And afterwards a full Submission drawn betwixt them: Mr. John Drummond of Leno●h Arbitrator for him, and one George Knox then a public Collector, Arbitrator for her, and Mr. Robert Pittilloch her present Husband. But upon sight of her Claim, he and his Arbitrator broke up the Submission reinf●cta, whereupon at length she was forced to put her Decreet in Execut, or otherwise to live perquire, and the Annual Rents to run on likeways.  
This being done, Alexander Stewart founding upon his apprising with Concourse of her Brother, pursued her and her present Husband with all Rigour for Nails and Duties: Whereupon offer was made to him of a Locality for his Annualtents during all the time of her Possession, and in time coming; Which he refused to accept, unless we would satisfy him for all bygones, which (as they then told him) they judged most unreasonable; in regard she had gotten nothing herself for the time bygone: And she being but a Liferentrix, might die before ever she received as much as would satisfy their bygone Annualrents. And it is referred to the consideration of all Judicious Readers whither this was not a Rational offer, seeing they had lain out of their Annualrents, not only through their own fault, (the Laws being patent) But also they themselves had concured with her Brother, to keep her of Possession, producing their rights to furnish him with Defences, and reason of Suspension against her. And as to the truth of it, it is tesitified by their own Decreet, obtained for proving the Tenor of a Disposition granted by James baily to Lieutenent General Ruthven; Wherein this is made use of, as one of their Reasons for proving that Tenor, That Mr. Robert Pittiloch offered them a Locality for their Annualrents. But this being refused she was forced to raise a Summons of Reduction against them of their Apptising and whole grounds thereof, Whereupon in December 1658, she obtained a Reduction, Reducing, Retreating and Anulling the Bands whereupon the Apprising is founded, in so far as they personally oblige the said Margaret Wardlaw with all Decreets of apprisings, Charters, Seasings, Decreets of removing following thereupon; But sustaining them, Quoad the real Right; in regard of her consent, to the Precept and Procuratrie for Infeftment. This being done, Alexander the Appryser never controverted in his time, but the apprising was reduced quo ad eam, and pursued for a poinding of the Ground, only for his Annualrents: In Opposition to which. Margaret Wardlaw the Defender and her present Husband, considering they might in Conscience and Equity, use all Legal Defences for stopping this Procedor, in respect of the offer of payment during her Possession, and that they themselves were the cause of there not being paid, First offered to improve their Executions which accordingly they did: Whereupon their Action was for a considerable time delayed, Thereafter the Process was lost, whereupon it delayed another while: After this Archibald died, and after him Alexander, thereafter Mr. William Bailie pretended an luterest, which if it had been sustained, would have destroyed the Interest both of Pursuers and Defenders, which was taken away by proving the Tenor of a Disposition, granted by his Father to Lieutenent General Ruthven, afterthis Alexander being dead, his Son James Stewart succeeded to him, and he not being satisfied with Annualrents, with concourse of his Mother Katrine Drummond his Tutrix pursued for Nails and Duties: To which the Decreet of Reduction abovementioned was always opponed, and as oft sustained: Yea when her Personal obligation was alleged to be sortified upon this ground, Ob non repugnantiam. It was repelled as a quibble: The Lords finding it was not the duty of a wife to repugn her Husband's deeds. But after all this and a long tract of time; James Stewart and his Tutrix both died, whereupon the Heritable right founded upon the apprising fell in to William Stewart (now of Rossyth) Cusing German to James, and the bygone Annualrents to Jean Stewars, Lady Inchdarnie his Father's Sister, who assigned them to Alexander Aiton of Inchdarnie her son, and Son in Law to Sir Roger Hodge then Lord Hercarse, one of the Lords of Session. But before this right fell into them, at least before it was declared, (the same being interrupeed by a long contest betwixt them and Alexander Naiper,) Mr. Robert Pitilloh and his Wife entered in terms of Agreement with William Stewart of Rossyth, who had right to the expired apprising, and to all Annualrents that were due since the death of James Stewart his Cusing Germane: Laying out to him the favourableness of their condition, in that Margaret Wardlaw was both Conjunctfiar of the said's Lands by her first Husband, and Apparent Heir to them by her Father, who was Proprietar of them, which the said Laird of Rossyth relished very well: And several times promised he should never agree with any till we had the first offer. But we fearing that the Annualrents would be declared to belong to Inchdarine Son in Law to a Lord of the Session; who might do great things for him, (as it after fell out) were loath to give too much upon consideration of this Danger: Whereupon we continued still willing to the Bargain, but conferring upon the price for a long time, without any final Agreement; till the right of the Annualrents came in Inchdarnies' person: And then my Lord Hercarse, sent for Mr. Robert Pittilloch, entertaining him with fair Language enough, but withal with many pumping Questions anent the Lands of Killernie and the condition thereof: Which I confess I answered with more Ingenuity than Prudence, conceiving at that time all he spoke to me had flowed from the like Principles; and among other things he mentioned to me agreement with him for the bygone Annualrents: To which I answered I could not agree as the case then stood for two Reasons. 1st. It would be an Homologating of Rossyths Right. 2dly, My wife being but an Liferentrix If I should agree for the Annualrents without the Heritable Right; My Wife might die long before I were satisfied of what I should Deburse: But I was in terms with Rossyth, for the Heritable Right, and I she and I should agree for that, I would endeavour likeways to agree for such Annualrents as were justly due; And in order thereto with all diligence met with Rossyth, and finally agreed with him, to give him 12000 Marks for his whole Interest, concerning which write was to be drawn with the first convenience; It being then late at night. After which a Gentleman of Credit and honesty, told me that to morrow thereafter, he overheard a Servant belonging to Hercarse saying to a friend of Rossyths, that their 10000 Marks was better than my 12000 Marks, endeavouring hereby to take the Bargain out of my hand. But conceaving it to be below any honest Man, and far more below a Lord of the Session, to take such base and indirect methods, after I had told him I was in terms with Rossyth therefore: And after that the business was fully ended, with which he declared himself noways unsatisfied, as also my Son in Law Mr. William Hodge having ingenuously told him the same thing, adding, he hoped his Lordship would not play in our Game: Whereupon he gave him assurance he would not, but that he would cause his Son in Law quite as much as Rossyth had done and more, I slighted the Gentleman's Information and friendly Admonition altogether; However I went down to Rossyth and paid him a visit, in whom I found no change, only I observed Innermey and his Lady to abide close by him while I was in his company, after which my Son in Law who was his Intimat, and had done him several special Services, went to him and desired that what was agreed upon might be drawn in Write; to whom his answer was. Do ye thing me so base and unworthy a Rascal as that I will alter what I have done. Whereupon we rested, not making great haste; But quickly thereafter we were alarmed with surprising News, that My Lord Hercarse, Inchdarnie, Innermey, and some others, had meet with Rossyth in Widow Thomsons house, near his Lodging, and he had granted a Disposition to Inchdarine of his hail Right for the Heritage and all Annualrents whatsoever he had right to; which we find since verified by the Disposition granted to him, with consent of Innermey, Scotstown his Brother in Law, and his Lady, of the date the to of December, 1687. Whereupon he was Infeft the 29 of the said Month thereafter.  

Some Reflections upon this Bargain,  
It is humbly 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, Persuading, and bringing the Bargain to a Conclusion. As to the first, it is well known, Rossyth is amongst the most ancient Barons 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 fully 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 Sum 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 Rhetoric, nor Fluent in Oratory, 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 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 Fugitives. 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, etc. 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 persuaded contrair to his Faith and Ingadgement to violate his Obligation. So deliberately perfected and adhered to for some days thereafter. And in so far as it was likewise done contrair to the Laws of Gratitude in so far as concerned Mr. William Hodge, for whose Children the purchase especially was made, for whose cause he often declared he would give me a Thousand Marks down of the Price; 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 accompanied 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 Marks less than Mr Robert Pittilloch should have given for it, besides an other Thousand marks which Rossyth declared he gave down, out of his respect to Mr. William Hodge; To all which may be added, such was his Confidence of Effectuating his Purpose, Terrore suo; et plena potestate quam tune habuit, that the Summons 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 Summons 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 satisfy them now for the Heretable Right, and all the bygone Annualrents? To which I answered, looking upon this Motion as a Jeer, I had once bought it already, 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 Justify the deed; All he said was, he had reason to do for his own security; 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 behoved to do it for his own security, in as much, as without Money he could not Travel: As likewise he told me, it would bid but one Bellum; which I looked upon as the highest of Threaten, and therefore answered him with much Sobriety, 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 won one. Thus having parted from him, the Summons being execute both for Nails and Duties, and for Annualrents, die Summons 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 passed: But as to the other for Nails and Duties, it was never yet publicly called, in the ordinar manner, nor any of the two sent out to be seen for six days, 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 happened 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 Tenants, ennumerating them by their names; and amongst them one who was never a Tenant, 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 preceding; and that they were to pay the same to any having best Right, but they were distressed by two several Parties, etc. 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 said's Tenants, but after they have disowned and disclaimed the same, as prejudgeing them of all the Privileges competent to them in an Ordinar Action which he has stated against them for the said's Nails and Duties: Which (as is humbly concevied) is a Forgery; if not a Falset.  
Secundo, This Bill Lybels' the Tenants, as acknowledging they are resting their hail Mertimass Duties, and that they are willing to pay them to any of the said's Parties who shall be found to have best right thereto: Whereas they have truly paid 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 likeways to be looked upon as a second Forgery.  
Tertio, In this Bill the Tenants' Duties are libeled, as acknowledged by them far beyond what they are, and by some of them who pays no Duty but two Shearers in Harvest, for their small parcel of Land, to be considerable sums of Money; which (as is humbly conceived) is a third Forgery.  
And as to Margaret Wardlaw Conjunct-fiar of the said's Lands, and her Husband, if such a Bill should be passed, 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 passed, it puts them in a condition never to uplift their Nails and Duties, albeit they should lose the Arrestment; upon a mere Alledgance and pretence of persons who never yet shown any right thereto: Whereby if any of the Tenants prove lapsi bonis, they are lost for ever.  
And if it should be discussed upon the Bill, which Inchdarnie boasts 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, merely upon a pretence, that the pursuer has a Competitor: Whereupon the Defender is defrauded both of his ordinary Diets for proving his Defences: and the benefice of the Roll, ordained for the lieges, 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 Tenor following;  
MY Lords of Counsel and Session, unto your Lordships, humbly Means and Shaws, we your Servitors Laurence Mudie, Adam Peacock, John Henderson, and the Remnant Tenants of Killernie and Bandrum, That where there is a Bill of Suspension given in to your Lordships, (we know not by whom) upon an alleged Double poinding, wherein we are alleged to acknowledge we pay great Duties, far beyond what ever we were in use to make payment of, and that we are resting our Mertimass Duty for the year last past 1687. And that we allege we are charged and pursued by Margaret Wardlaw and Mr. Robert Pittilloh her Husband, for the said's Nails and Duties, albeit not resting by us▪ Whereupon Alexander Aston of Inchdarnie intends to found a Process against us, and the said Mr. Robert Pittilloh and his Spouse our Masters. It is humbly represented to your Lordships, that if the said Bill shall be sustained as the foundation of a Process as said is, albeit disclaimed and disowned by us under our hands, yet i● will make faith against us in time coming, whereby in the first place we shall be found liable in far greater Nails and Duties then ever were due by us, and the Mertimass Duty last passed already paid by us, to the ruin of us and ou● poor Families. Secondly, We shall be found guilty of accusing of our said's Masters of the height of Covetousness, in requiring our Duty twice for one Term, which is a crime superscribed by the highest of all Judges, with the Name and Title of Idolatry, whereof we never knew them guilty.  
Wherefore we humbly pray, that for preventing the utter ruin of our poor Fortunes, and our disgrace in being pursued for slandering our Masters with so horrid a Crime, your Lordships would cause deliver up to us that Bill of Suspension, as our own proper Evident to be canceled and destroyed. Or if Inchdarnie shall be so far indulged that it shall be sustained to him as a Foundation of a Process, binding against us, and our Masters above specified, as said is, he may be ordained to subscrive i same before two witnesses, and Judicially to abide thereat; that we may have the benefit of improving thereof with concourse of his Majesty's Advocate, as false and forged as accords of the Law.  
This Bill being read to the hail Lords, the Deliverance on the back thereof, was written by the Clerk in these terms,  
Edinburgh Feb: 14: 1688.  
THe Lords having 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 Precedent 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, showing him the Ordinar would do nothing on it, without his Subscription: To which he answered, he remembered nothing of it, whereunto I replied 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 Precedents 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 Dutte, as it was mine to require it. However neither the one nor the other was granted, albeit the said Bill was likewise disclaimed by the Tenants publicly, their Advocate Mr. William Hodge in their name disowning the same at the Bar; 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 Tenant's Bill were respected; we 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 nature is but a Dilatory sentence, as the word signifies, the deliverance 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 alleged 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 Debtors will or not, than any malicious person at his pleasure may give in a Bill for Suspending the Creditor, to provock him unnecessarly to distress the Debtor: Whereupon much trouble and distress might follow. If it be answered they have not an interest; it is replied 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 Judgements received with full Satisfaction, I have been many years out of Practice, 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 their: Adding only two more, which are founded upon pure Nature, and these Principles which GOD hath implanted in all men's 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 Tenants 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 passed at least against one who was never Tennent in these Lands, & against many of them for Sums they were never due; Whereupon they were denunced, and upon Caption Incarcerat ten days 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 alleged to be the fault of the writer who raised the Horning, It is answered, when a Bill was put in complaining of the writer, and craving he might be punished therefore, The Lord's answer was, Finds the Writer has done no wrong. And therefore we 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 secure of him who was no Tennent, seeing the order for the Tenants to compear and depone, could never oblige such as were no Tenants 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 libeled them Tenants, the reason being one and the same as to one and to many.  
But the Bill being sustained, though the Lords were far advanced in their Roll of Suspensions; Yea so fat that it would not have tempted any ordinar Man's 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 Terms.   

January, 21 1688.  
THe Lords discharges the Clerk to the Bills to expede the within mentioned Suspension, until 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 making 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 lieges. 3●o, Hereby we were prejudged of the ordinar diets, Competent to Defenders in pursuts for Nails and Duties, in so far as upon the 25 of Januarie, we were ordained to produce our Interests with Certification betwixt and the tenth of February thereafter: Which was the allowing us but 16 days, which in all probability, if we had had the benefit of the Roll, and other Privileges Competent to Defenders, in Actions for Nails and Duties, would have been 16 Months; A great part of our righs being out of our hands, whereupon an incident diligence would have been granted us. But howsoever this being enacted, we rested secure, till an Act should have been extracted, as has been the constant practice in all such cases, ever since the erection of the College of Justice: Ane therefore we paid 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 Discerned, preferring Inchdarnie to the Nails and Duties, whereupon we put in another Bill, of the Tenor following,  
MY Lords of Council and Session, Unto your Lordships, Humbly Means and shaws, we your Servitors Margaret Wardlaw Conjunct Fire of the Lands of Killernie, and Mr. Robert Pittilloch her Husband, That whereas Alexander Altoun of Inchdarnie having raised a summons for Nails and Duties against our Tenants, after the day of Compearance was past, and Tenants and we were both ready to Answer, he changed the nature of his Action unto a Suspension of double poinding (as is humbly conceived) contrare to Law and Equity, hereby prejudging us of the privileges allowed to all the Liege's, in such cases by Acts of Parliament, Acts of Sederunt, and immemorial Pratick: Notwithstanding hereof, we in an entire deference to your Lordship's pleasure, submitted thereto, providing your Lordships would ordain him to subscrive and abide by the said Bill stuffed with calumnious untruths, prejudicial both to us and our Tenants, and therefore disowned and disclaimed by them. And that your Lordships would grant us and our Tenants the same privileges, which in Law are allowed to all his Majesty's Subjects in pursuits for Nails and Duties, this being no other but the same Action in omnibus mutato nomine. Albeit as to the first, your Lordships referred the causing him subscrive and abide by the Bill to the Ordinar to whom it was first presented, there is nothing done therein, and as to the other, when after your Lordships had enacted us to produce our interests hinc inde, the tenth of February, in regard whereof, upon good and Legal Grounds, we rested secure till an Act should have been extracted, calling for a scroll thereof often in the Clerk's Chamber, with a purpose to give ready obedience, in place thereof by an unusual surprisal, without an Act, we were ordained instantly to produce, which we could not do. And because we did it not, a Decreet was presently put up against us, in regard whereof, we humbly conceive it ought to be Declared by your Lordships, whether any Process ought to be sustained upon this Bill, before the Pursuer subscrive the same, and abide thereat. And 2dly, Whether your Lordships will sustain this for a practic, that where there is an Act passed, there can be either a Decreet of Preference or Circumduction of the Term, before Extracting and Calling the Act? And if your Lordships find it can subsist with Law and Form, we shall instantly produce.  
Wherefore, may it please your Lordships, to take the premises to your serious consideration, and to give us your positive Determination thereanent, and to Declare whether we and our Tenants shall have the privileges of other Defenders, pursued for Nails and Duties, or if the same shall be Arbitrarlie altered in favours of Inchdarnie, because this Action hath gotten the name of a Suspension; And in the mean time to ordain the Decreet abovementioned to be expunged.  
The Deliverance and Answer whereunto, was in these Terms.  
Edinburgh, February l8th. 1688.  
The Lords having heard this Bill, remits to the Ordinar, who passed the Bill of Suspension to allow the Petitioners a farther Term to produce their Interest or not, as he shall find just.  
If the Lords had refused or rejected this Bill, as frivolous and impertinent; it is like the Petitioners submitting to their Lordship's 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 alleged, that a farther Diet 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 ways the desire of the Bill; but 1mo, That Inchdairnie subscrive the Bill, and abide thereat, that a solid ground 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 Libel: 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 Privileges due to other Defenders, in actions for Nails and Duties: Or if the same should be Arbitrarly altered, in favours of Inchdairnie, because it has the name of a Suspension.  
But all Petitions being in vain, we produced Margaret Wardlaw her season, 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 Custom 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 days be Elapsed, and the Defender is not tied 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 kept 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 not 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 Arms 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' Advocate, 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 day, but to morrow thereafter his Lordship call 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, alleged due by the Infestments following upon the Heritable Bonds: Because an Action for such Annualrents, and an Action for Nails Duties, 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 Nails and Duties: But knowing there could be nothing in this process for a ground of Nails 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 though 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 tied to Answer. To the first it was replied, 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 controverted but their real Rights were valid; but they could never be a ground for Nails and Duties in prima instantia; nor any other Right they produced but the apprising, which the Defence , did totally elied. But my Lord Drumcairn being straitened with the Defence, answered himself, that our Reduction was but as to personal Execution against Margaret Wardlaw. To which I replied myself, 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, Cassis, and Annuls the saids Bands, in so far as they personally oblige 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 Lordship's patience would have admitted us a Hearing, we could showed 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, discerned, 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 Tenor following:  
MY Lords of Council and Session, unto your Lordships humbly Means and Shows; We your Servitors Margaret Wardlaw, Conjunct Fire of the Lands of Killernie and Bandrum, and Mr. Robert Pittilloch Advocate, her Hushand for his Interest. That whereas on Friday the 24, of this Instant, My Lord Drumcairn at the Side Barr past a Decreet in favours of Inchdarnie, preferring him to the Duties of the said's Lands: For the Demonstrating the Iniquity of this Sentence, Your Petitioners conceives it their duty, to Represent to your Lordships the whole tract of this Affair, which is as follows, viz. Inchdarnie having fain in by an unexpected Accident to some Nails and Duties alleged, resting to Alexander and Archbald Stewarts, Uncles to the Laird of Rossyth, and my Lord Hercarse having sent for the said Mr. Robert, under pretence of Agreement therefore, and received from him these Rational Answers: That he could not make any Agreement for any Nails and Duties, till he had agreed with Rossyth, in whose person the Heritable Right stood, because it would not only be an Homologating of Rossyths Right, but the paying out of Nails and Duties for a Liferentrix. For the return whereof he had no assurance, by reason of the uncertainty of her Life, and that he was in terms with Rossyth, for the Heritable right in order to Agreement, for what Nails and Duties should be found due. In place of expecting the close of this Agreement which your Petitioners hastened, they being in terms before to this purpose, rationally to have satitfied his Lordship. Inchdarnie with concourse of my Lord Hercarse, his Father in Law, after your Petitioners had verbally agreed with Rossyth, for the said heretable Right, and it was concluded it should be drawn in write with all possible conveniency, caused him dispone his Right to his said Son in I am for a 1000 Marks Scots less than your Petitioner had agreed, for he having a great Action depending in the Session against my Lord Annandale; and knowing the great Figure Hercarse made amongst the Lords. 2ly. Having obtained this Right, his Son in Law raised summons against your Petitioners and their Tenants for Nails and Duties in which Action, we were most ready and willing to have answered him according to the Laws and practic of the Kingdom, but instead thereof, in an unusual manner, after the day of Compearance was past, he raised a Suspension of double poinding in the Tenant's names, which (at we are informed by able Lawyers, was never sustained but in favours of Suspenders really distressed by Chargers to be discussed upon a Bill, when they could not find caution: Farr less at the instance of the Pursuers, when the alleged Suspenders disclaimed and disowned the same, under their hands. As also, your Petitioners alleged Chargers on the other part, Disowned the same. 3dly. When the said's Tenants did put in a Bill, Craving, That in regard they had disowned the same, and that it was filled with calumnious untruths, it might be either given up to them, as their own proper Evident, to be canceled; or at least Inchdarnie might be ordained to subscrive the same before witnesses, and formaliter abide thereat, whereby they are prejudged of their Improbation, the remedy of Law in such cases. 4ly. That in all Actions for Nails and Duties (of which nature this is mutato solummodo nomine) no Decreet can in Law be pronounced where a term is assigned for producing an Interest for disobedience, till an Act be Extracted and after Extracting, Called, and the Term Circumduced for not Production; Yet in this Action before an Act was Extracted, a Decreet was pronounced, while your Petitioners upon Legal grounds rested secure, and had given money to the Extracter for a sight of a scroll of the Act, when it was called by their Adversary, my Lord Drumcairn, past a Decreet of Preference in favours of Inchdarnie. 5thly. His Lordship upon an Address made to him since we produced Margaret. Wardlaws Infefiment, having called this Action again, we proponed an unanswerable Defence, why Inchdarnie could not be preferred, viz. That the apprising which was the ground of all, the Process was reduced quo ad Margaret Wardlaw, My Lord Hercarse Procurator for Inchdarnie answered, that our Reduction did not prove our Alledgance, and that be would produce the same himself, and added that there was an Backhand of Reversion granted to Andrew Wardlaw, whose Right stood in Inchdarnies' person, which made it appear that Margaret Wardlaw is paid, for all that she could crave out of this Estate: To which it was replied, that the Defence being unquestionably Relevant, the probation ought to admitted to the Proponer, at least if he produced the Decreet of Reduction, which was made use of for proving our Defence, we ought to see and be heard to object against it. And as to the Band of Reversion, it was answered it was granted by her tante Matrimonio merely for Love and Favour, and under Reduction long after she stood publicly infest. Lastly, My Lord Drumcairn having called this Action again after he had taken n the Dispute above mentioned to a visandum, My Lord Hercarse still compearing as Procurator for his Son in Law (a Practic without a parallel) without giving us a sight of the Decreet they produced to object against it or admitting us Account or Reckoning in reference to the Reversion, which we offered under protestation it should not be prejudicial to our▪ Reduction, still discerned according to the desire of My Lord Hercarse, Inchdarnies' Procurator, preferring him to the Nails and Duties.  
Wherefore we humbly pray that your Lordships for shunning the guilt of an unjust Sentence, and for vindicating your own Honours before the World, would seriously consider the Concussions, the overhailing, the Injuries, the Illegalities, and Informalities of the said Process, and particulars deduced therein, tending to the ruin of your Petitioners, without any free hearing or the benefit which by the Laws of the Kingdom is allowed to all his Majesty's Subjects, and discharge the Extracting of any such Decreet, till your Petitioners be heard fully and freely to debate their Interests as others his Majesty's Subjects uses to be heard in such cases.  
This Bill being read to the Lords, It is given up to my Lord Hercarse to see: Who (as is informed) went to the King's Advocate, 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 their Terms:  
The Lords finds the Representations contained in the said Bill Calumnious, and therefore refuses the desire of the said Supplication, and ordains Macers and Messengers at Arms, to apprehend the said Mr. Robert, and incarcerat his Person till further Order.  
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 lain 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 enlarged 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, though it be the constant custom in such cases, always 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, lest it be reckoned to me for a second Crime; But come to the Bill itself: The first Representation bears, the Conference which passed 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 Marks 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 shadow of a Calumny in it. As to the 2d: part of it, That Inchdarnie caused him▪ Disnone with concourse of his Father in Law, etc. 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 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 simply 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 calumny, nor reflecting upon my Lord, though he had added, Rossyth having in his view the service such a Lord might do him, far beyond the worth of 1000 Marks or two. The second Representation is, That in an unusual manner, he raised a Suspension in the Tenant's names, which was by them and the other alleged 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 College of Justice, and we shall acknowledge it an Error, though it would prove no calumny; but a mistake of the Form of Process before the Lords▪ And if it be denied, that it was disowned by the Tenants, 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 Tenants 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 denied, their Bill is Extant to verify it: And that it was not granted, is a Negative, and proves it self, till the contrar be instructed. As to the Fourth Representation, it is, that where in an Action for Nails and Duties 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 passed a Decreet upon the Bench; when there was no act extracted: tho' afterward he passed it denovo upon as was alleged 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 denied 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 replies specified therein to Hercarse his answers, we offer to prove it if denied 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 count 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 of Hercarse and the Declaration of my Lord Drumcairn, and that Hercarse was still Procurator, for shame will not be denied: Yea only Procurator in this Debate. And that it was a Practic without a Parallel, we also represented, which we shall acknowledge for an Error, but no Calumny, when the contrair is instructed: We have seen a Lord come to the Bar, 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 overhailing, etc. It is answered, 1st. Tho therein there were something, which being insert in the Narrative might infer Calumny; Yet the scop of the Petitioning part, being merely to desire the Lords to consider, if things be so and so, and to rectify as they shall find cause: It would be very hard to declare upon a mistake here, the Petitioner to be guilty of Calumny: 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, lest my Maker take me away suddenly: Job 31. ver. 21. But 2dly, We believe we have sufficiently instructed injury, which in the largest sense, is quicquid fit non jure, overhailing, by precipitating Judgement, illegality, 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 showing the way, how Inchdarnie came to the Bargain, to which we now add: My Lords engaging the King's Advocate in the cause, unde abusus est patronatu Caesaris; Labouring to make it a public 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 alleged 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 likeways 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 always 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 spoke 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 employment, and meet with some affront which would be esteemed such to a Lord; but not to one of a vulgar station, he could not complain that there were any injury done, or a Lord were affronted: And therefore though 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 alleged, 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 public 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 tied to compear: till First, they had given me notice who was my Accuser, 2do. The double of my Indictment, 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 ways 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 Advocate whom I had consulted, to attend in the Afternoon, in the close of the Session, he being a Gentleman of great Employment; 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 days after the rising of the Session, the Lords meeting for some concernment of their own, They recommended to the Precedent to agree the Civil Interest, and for that effect delayed the Execution of the Sentence, for my Imprisonment for a Month, with power to my Lord Precedent 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 Precedent, to do in the matter as he should find just: To which Hercarse cheerfully condescended, being then in a tender frame, partly through the rescent lose of his Place, and partly through the sickness 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 myself 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, alleging a Communing would do the business, and when we told this to the Precedent, 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 effectuate Peace, I attended a month after the Session risen; being in a very infirm and valetudinary condition, in which at length having obtained a meeting before the Precedent, 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 Precedent should appoint. But not being satisfied with his rough discourse, and knowing he might as well reseill from the Precedents determination by word, as he did from the Submission: We parted without a Conclusion, only the Precedent 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 Tenants, and with many Threaten and big Menacing words persuaded 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 Nails and Duties as he had libeled 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 Tenants, but his Father in Law knowing the grossness of this Act, sent over Mr. Law and stopped him▪ And to Palliate the Illegial Denunciation, and Caption, which was taken out, he and his Guide abovementioned, came to the Tenants, and Threatened them, if they brought not their Duty 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 Precedent, 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 employed to apprehend the Tenants, which no rational man being free of the guilt, would have done; he being so gross a Criminal, until he had either been Purged, or Punished. But the Tennnents finding that the charge itself 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 writer, who had raised such a Horning, they being charged particularly, for the Sums as Inchdairnie had lybeled them. To which the answer was, finds the writer has done no wrong: Hereupon the Fifteen days being near expired, a Bill was put in in the Tenants 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, though some of their Duties 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 Schoolmaster 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 not 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 Tenants 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 their Tacks who had any. Which Sentence is never drawn in an Act, Extracted and Read out of the Minut-Book, to put the Tenants in Mala fide; But Written by the Clerk upon a Lord's Direction, several days after the rising of the Session: Yea so close it was in the carrying of it on, that the Gentleman 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 myself 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 Tenants 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 Surgeons, to require they be upon Soul and Conscience: It was never required in a Testificat, concerning a Man's 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 ago. But we leave their ticklish questions to my Lord Hercarse to solve. The Tenants 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 Tenants; 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 days, being the time of Harvest: till they were forced to pay him their Duties; such as could get Money, and such as could not to give Bond, or find Caution, as also after they had agreed for their Duty, he forced them to take a three years Tack of him, or else threatened them to return them again to Prison.  
How the Lords will relish this diligence, before adusing of the Tenants 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 breach of Arrestment, there being two Arrestments laid on upon the Nails and Duties, which were not loosed by Inchdairnie, till the Tenants were brought Prisoners to the Town of Dunfermling. The Chancellor his Over-awing power being now gone with himself, tho' not long since, Inchdairnie foread out his kindly Letter to him, before the Tenants in Tillo●●ill, to terrify them by his Authority.  
FINIS.