INFORMATION For Lieutenant Colonel Forbes, and John Forbes Writer in Edinburgh Agent for the late Regiment of Sir John Hill at Fort-William, Against Captain Allan Cathcart, Captain Menzies and Captain Hamiltoun.  
IT is manifest by what is Represented by the Colonel, that the said's Captains have no ground to crave any Money (under the cover of being the Remains of the Retention) either from the lieutenant-colonel or Agent, and that both of them ought to be Assoilyied from the Complaint by all the Rules that can be called Law or right Reason.  
The Colonel as such has Right to the Superplus of the Retention, for defraying the contingencies of his Regiment: Especially being in Garrison at a Post where he was in some manner both a Civil and Military Governor, and sustained the Charge of both with very notour prudence and Loyalty.  
The Colonel Exercised his Right by Ordering this Money to be paid 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-colonel, whose faithful Services and Expenses for the common Interest, the Colonel 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 Colonel 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 Colonel Employed the Lieutenent Colonel on the public Business, gave him his Instructions, Examined his reports and Expenses, approved his management, allowed his Bills, ordered his reimbursement, 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-colonel 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) alleging 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-colonel 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 Colonel 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 Colonels monthly Pay. And then says, Item, 30. libs to, etc.   Which argues a fraudulent concealment, from whence they intent to conclude that the Lieutenant Colonel ought to be Discerned to repeat, or the Agent to make over again a second Payment: But at the same time these Gentlemen forget the Lieutenant Colonels 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 Colonel, and Agent ought to be Assoilyied by all the Land marks of Law and Form, which our Predecessors have set for ensureing the Safety of the lieges. 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 Colonel: And the Colonel 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 Colonel, and consequently includes likeways a Discharge to the Lieutenant Colonel, besides his separate Instructions which he has thereof.  
These Discharges are a Brazen 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 Riot or Breach of the Peace can be pretended anent it) ay and while it be annulled by their Lordships, before whom Diets not being perremptor, His Majesty's 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 private civil Rights, they would never have presumed to divert the Lords of His Majesty's most Honourable privy Council, from the greater and public 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 private 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 account of the then Lord Lindsay, and Colonel Buchans Officers to be so much as in the least insisted upon.  
2. Suppose (which is a great postulatins) that the Colonels 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 Majesty's 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 Specialties that can distinguish the present case.  
The other Officers received all the Pay appointed to them by the Establishment through the hands of the Colonel, who drew Orders and Precepts for the same on the Agent: So that whatsoever is not expressly appointed to the Captains by the Establishment, (as the Retention is not) Remains with the Colonel, 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 Colonel, that Accounts 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 paid in Cash without Receipt: Lastly, that the Colonel Dispensed the Remains of Retention, without any Bar 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, Colonels and those of the lieges who deal with them would of ●ll men be the most Miserable. For presently Captains and their Heirs would not only repeat the whole Retentions any time within 40. years from the Colonels and their Poste●ty: But likewise, any Conjunct or confident Person that got Money from them upon Precepts 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 instructions subjoined to the Colonels Petition: As it is certain that while the Regiment stood, ●he Complainers never dreamt 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 Majesty's ●ost Honourable privy Council, how His Sacred Majesty has always thus Determined, and ●ow their Lordships did Reject the Petitions of the then Lord Lindsay, and Buchans' Officers .  
But the Complainers knowing that they want things must invent Names and call their Case a speciality. Yet it is most certain that no Veil can cover it from Justice.  
It is indeed pretended, that though in the common case the Colonel may have the Retention, yet their honest Colonel 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 unwholesome 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 Colonel Hills Letters, to my Lord High Chancellor, and my Lord Teviot, but both good Nature, and Manners makes the lieutenant-colonel forbear Particulars.) And Which Order of Agreement, Major Forbes will give you etc. and on the Back thereof Major Forbes says, you are to pay the within written Sum, 200 lib. to the Colonel, 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, etc. The other in 1695, says I desire you to allow Lieutenant Colonel 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. etc.  
But before making particular Answers, the Complainers would be pleased to mind, that the Colonel 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 myself under my own hand: with this assurance, that no other Bills or payments should be allowed in Account. 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 Colonel vouches his Right, and that none 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 Writ. It bears that even the 1400 lib. was distribute upon a specific Account, viz. Their Expenses 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 implies that it was only a temporary and precarius grant, quoad these particular Sums: especially considering that it adds this shall be your warrant, 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 alms 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. Liberality 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 necessity and bonds: 3. These papers do sufficiently Interpret th●● selves without any such comments as destroys the Text. For the agreement mentioned the order 1694. is called an order of agreement, and expressly referred to be told by M● Forbes, and Major Forbes on the back of the same Writ tells and signs as is above represented,  
There is another piece of new Logic introduced by the Complainers, viz. The Ag●● account of the Retention 1693, is docketed thus, ' I Captain James Stuart being order by the Colonel to revise the above-written Discharge, do certify that I have examined Account and credentials, etc. As also the Colonel in a docket of the Account from 1● to 1698, says the above written Account 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 denied. And otherwise a compter might put up Money in his Pocket, because he is employed by the master of the Money to revise the count. In a word the Colonel 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 Writ 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 Colonels right not found to be good: yet neither Lieutenant Colllonel nor Agent be liable, because quoad the Agent he has made bona fide payment by his Constituents o● and as to the Lieutenant Colonel suum recepit, he has got but what was due to him by constituent, viz. The Colonel, and he neither did nor was obliged to inquire, out what part of his Debtors 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 Movables, (〈◊〉 especially Money) passes without any burden of the last Possessor, his personal oblidgments, commerce necessary betwixt man and man requires, that there be not Floodgates 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 Colonel and ge●t might have cleared among themselves, in placing Debursments to one Account, rath than another: yet the Lieutenant Colonel is no ways concerned out of what Fond his Expenses were furnished, and it had been Impertinence in him to have asked the Colonel 〈◊〉 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 Colonel was employed by the Colonel, and 〈◊〉 proven of him by repeated approbations under his hand herewith produced, which cli●● him in all the undertake which he went about with so much fatigue, and even superp●● Expenses out of his own Pocket for the public good: and consequently he who set 〈◊〉 on work was bound to pay his Wages, and such an honest master did never fail to 〈◊〉 them.  
It's no ways to the purpose, that the Lieutenant Colonel 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 industry for a man's self, when no other is endamaged by it: a● his imployer and Colonel has been so far from thinking otherwise, that he has fully approven the Lieutenant Colonels faithful discharging of his Trust.  
4. As to the particular condescendence, the Lieutenant Colonel and Agent are no wa● concerned to make any Answer thereto; because they most humbly conceive that th● three separate grounds before represented, are more than sufficient to exoner them without entering to detail.