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<DATE>2008-07-21</DATE>
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<NAME>Emma Leeson Huber</NAME>
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<ITEM>Corrected 0 illegibles of 7. Converted 8 illegibles To GAP DESC="illegible RESP="oxf".</ITEM>
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<BIBNO T="oclc">52211674</BIBNO>
<VID>175406</VID>
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<PB REF="1">
<HEAD>An&s;wers for <HI>Alexander Hamiltoun</HI> of <HI>Kinkel,</HI> To the Petition given in be way of An&s;wer, for John Ayttoun <HI>of</HI> Kinaldy <HI>again&s;t him,</HI></HEAD>
<P>THE &s;aid <HI>Alexander Hamiltoun</HI> of <HI>Kinkel</HI> having given in two Petitions to his Grace, and the Honourable E&s;tates of Parliament, the one whereof was General, and the other Special conde&s;cending upon the Right and per&s;on, in relation to which the clau&s;e in the General act anent pre&s;criptions is craved to be extended. <HI>Kinnal|die</HI> gives in a Petition by way of an&s;wer, wherein he repre&s;ents, that the Right of Wood&s;et conde&s;cended upon in <HI>Kinkels</HI> &s;econd Information was Re|deemed; But that not being <HI>hujus loci,</HI> all that I &s;hall &s;ay, is, that it was no other wayes Redeemed than by elicting upon Death-bed, the Di&s;charge and rennonciation conde&s;cended upon in my &s;econd Petition, and that for no Oner|ous cau&s;e, as &s;hall be made appear in due time.</P>
<P>In the nixt place, he gives particular rea&s;ons why the de&s;ire of my Petiti|ons &s;hould be refu&s;ed; And 1 <HI>mo.</HI> Becau&s;e there being a Reduction of the &s;aid Right depending before the Lords of Se&s;&s;ion, who are Judges competent. It is impracticable to anticipat their Deci&s;ions when the parties concerned are not called.</P>
<P>To which it is An&s;wered, that the Authority of King and Parliament is Soveraign, and cannot be declined, nether is it impracticable or unu&s;ual for that Honourable Court to re<GAP DESC="illegible" RESP="OXF" EXTENT="1 letter">one per&s;on<GAP DESC="illegible" RESP="OXF" EXTENT="1 letter"> lo&s;ed in th<GAP DESC="illegible" RESP="OXF" EXTENT="1 letter"> <GAP DESC="illegible" RESP="OXF" EXTENT="1 word"> oppre&s;ive <GAP DESC="illegible" RESP="OXF" EXTENT="1 word"> a|gain&s;t the &s;aids opp<GAP DESC="illegible" RESP="OXF" EXTENT="2 letters">&s;ions, and ru<GAP DESC="illegible" RESP="OXF" EXTENT="2 letters">ing con&s;equences thereof&punc; and that either by General, or &s;pecial Acts, and without any regard, whither the &s;ame by con&s;equence, may be prejudicial to cau&s;es depending before the Lords of Se|&s;ion or not; And even without Citation, or hearing of parties, which was impo&s;ible by rea&s;ons of the va&s;t number of Donators, and &s;uch others, and al&s;o was needle&s;s, in regard that by &s;uch a Re&s;titution again&s;t the Inju&s;tice of Arbitrary Power, no particular per&s;ons Right was directly impugned; And it is clear by the General Act anent Fines and Forefaulturs, and &s;everal par|ticular Acts in favours of Forefaulted per&s;ons, for repetition of the bygone Rents of their Lands; And the King and Parliament are the only competent Judges in many &s;uch ca&s;es, in re&s;pect the Lords of Se&s;&s;ion, and other inferior Judges being more &s;trictly oblidged to the Letter of Law, are not capable to give per&s;ons oppre&s;&s;ed a Ju&s;t and full redre&s;s.</P>
<P>Although it is humbly conceived, that in this ca&s;e, the Grounds of Comon Law would &s;top the cour&s;e of pre&s;cription while <HI>Kinkel</HI> was <HI>non valens agere,</HI> if the mentioning of &s;horter pre&s;criptions only in the fore&s;aid clau&s;e of the Ge|neral act did not make the ca&s;e more doubtful, although it is very probable that there being the &s;ame rea&s;on of equity for di&s;counting the fore&s;aid years of oppre&s;&s;ion in long pre&s;criptions, that the mentioning of &s;horter pre&s;criptions was not intended by way of Re&s;triction; But becau&s;e there was greater ground to doubt as to them, or becau&s;e the&s;e &s;hort Pre&s;criptions were only under the Parliaments view, as a ca&s;e wherein greater numbers of people might be con|cerned, and therefore <HI>Kinkel</HI> has good ground to apply to the Parliament for explaining, &amp; extending the &s;aid Clau&s;e; and al&s;o <HI>Kenaldies</HI> complaint of this
<PB N="2" REF="2">
method as &s;ingular as groundle&s;s, e&s;pecially &s;eeing the &s;ame was actually done in a ca&s;e betwixt the Earl of <HI>Airly</HI> and Sir <HI>John Dam&s;ter,</HI> and that there is the &s;ame Rea&s;on in long and &s;hort pre&s;criptions, as &s;aid is; As al&s;o, &s;eeing <HI>Kinkel</HI> was obliedged to make a particular Conde&s;cendance, to the effect <HI>Kinaldy</HI> might give in his An&s;wers, which he has accordingly done, and which &s;upplies the want of a Citation.</P>
<P>To the &s;econd Rea&s;on it is an&s;wered; It is mo&s;t groundle&s;s for <HI>Kinaldy</HI> to al|leadge, <HI>That Kinkel delayed to in&s;i&s;t in this Proce&s;s, until he was &s;ure of the Death of his Witne&s;&s;es in&s;ert in the Renounciation.</HI> Seeing 1<HI>mo.</HI> The true Rea&s;ons of delay, were his bad Circum&s;tances the time, and becau&s;e <HI>Kinkels</HI> papers, when his hou&s;e was Gari&s;oned were robbed, and he could not have acce&s;s to them, until a little before the intenting of the &s;aid Reduction, as al&s;o he is clear to depone that he never &s;aw the &s;aid Renounciation, nor knew any manner of way who were the witne&s;ses in&s;ert therein. 2<HI>do. Kinkel</HI> has proven his rea&s;on of Re|duction, <HI>ex capite Lecti</HI> by witne&s;ses yet living, &amp; beyond all exception. 3<HI>tio.</HI> As <HI>Kinkel</HI> could not then fore&s;ee &s;uch a happy Change by which he might Ex|&s;pect more impartial Ju&s;tice. So no man can imagine, he would have &s;uf|fered pre&s;cripion to run again&s;t him, If he had been in the lea&s;t Mea&s;ure <HI>va|lens agere;</HI> And where it is alledged there was nothing to hinder <HI>Kinkel</HI> from intenting this Reduction dureing the Lifetime of his brother in Law, Judge <HI>Kerr.</HI></P>
<P>It is An&s;wered, that as <HI>Kinkel</HI> was then &s;tated with <HI>Kinaldy</HI> in&s;tigat the Arch-Bi&s;hop to per&s;ecute him, and took from the Bi&s;hop the gift of his E&s;|cheat about the time he was under an Proce&s;s of excumunication, and <HI>Kinkel</HI> being ingadged to <HI>Kinaldy</HI> upon the account of Cautionrie, and under &s;um|mar execution for &s;everal &s;umms, and further his affairs being otherwi&s;e per|plexed: It is a frivolus inference from <HI>Kinkels</HI> for bearing in &s;uch an unfavou|rable Junctur to ingadge in a tedious and expen&s;ive pur&s;uit to conclude that he was con&s;cious of the inju&s;tice of the Plea, E&s;pecially con&s;idering that he knew there were 20 Years of the Pre&s;cription then to run during which &s;pace, and at any time therein he might have pur&s;ued as certainly he would have done, If he had not been Debared by the Legal incapacity the violence of the time brought him under.</P>
<P>To <HI>Kinaldies</HI> 3d rea&s;on, it is An&s;wered, he thereby clearly In&s;inuats which he expte&s;ly confe&s;&s;es in other parts of his Petition, That he has no other de|fence to appone to <HI>Kinkels</HI> ju&s;t claime: But that of pre&s;cription which being in it &s;elf a little not very favourable, is in this particular ca&s;e wherein a great number of the&s;e years ran again&s;t <HI>Kinkel</HI> when he was <HI>non valens agere,</HI> as &s;aid is mo&s;t odious and unju&s;t, and therefore no regard ought to be had to the re|pre&s;entation he makes of the great lo&s;s he will &s;u&s;tain by reponing of <HI>Kinkel,</HI> Seing on the other hand <HI>Kinkel</HI> has lyen under the pre&s;&s;ure of the &s;aid lo&s;s ever &s;ince the granting of that renounciation, and if <HI>Kinaldy</HI> be involved in 60 Thou&s;and Merks becau&s;e he is forced to te&s;tore to <HI>Kinkel</HI> a part of his own which he has &s;o long Po&s;&s;e&s;&s;ed upon an invalid tittle neither <HI>Kinkel</HI> nor the judges are to blaime.</P>
<P>And as to his alledgance, That if there had been any Ju&s;t grounds for <HI>Kinkels</HI> claming this Summs he would have objected it by way of compen|&s;ation in &s;everal pur&s;uits at <HI>Kinaldies</HI> In&s;tance again&s;t him, and would certain|ly have mentioned it when he di&s;poned his other lands to <HI>Kinaldy</HI> in &s;atisfact|ion of the&s;e Debts; as al&s;o when <HI>Kenaldy</HI> obtained Decreets of General and &s;peciall Declarator of <HI>Kenkels</HI> &s;ingle and Lifere<GAP DESC="illegible" RESP="OXF" EXTENT="1 letter">t E&s;cheat.</P>
<P><PB N="3" REF="2">It is an&s;wered. That the&s;e pur&s;uits were for liquid debts and could not be compenced by the &s;umms contained in this Wood&s;et, until <HI>Kinkel</HI> had fir&s;t ob|tained a Reduction of the fore&s;aid Renunciation, and after that he had intend|ed a proce&s;s of Compt and Reckoning, and thereby &s;tated a Liquid &s;umm due by <HI>Kinaldy</HI> upon the account of the Wood&s;et; which being a long and expen|&s;ive proce&s;s: It is clear the &s;ame could not be &s;oon di&s;cu&s;&s;ed as to furni&s;h <HI>Kin|kel</HI> with a defence of Compen&s;ation again&s;t <HI>Kinaldies</HI> more &s;ummar pur&s;uits, as al&s;o the&s;e very pur&s;utes which <HI>Kinaldy</HI> did rigorou&s;ly and unmercifully pro|&s;ecute again&s;t <HI>Kinkel</HI> with the bad circum&s;tances he was under the time by the Bi&s;hop of St. <HI>Andrews,</HI> his per&s;ecution did reduce <HI>Kinkel</HI> to &s;o great Extre|mity: That he was hardly able to maintain his Family with Bread, and no wonder if at that time <HI>Kinkel</HI> thought it not fit to engadge in tedious and expen&s;ive proce&s;&s;es, E&s;pecially con&s;idering that at that &s;ame time under a proce&s;s of Excommunication at the Arch-Bi&s;hop <HI>Sharp</HI>'s in&s;tance, at which time <HI>Kinkels</HI> E&s;cheat was gifted to <HI>Kinaldy,</HI> who joined with the Bi&s;hop in per&s;ecuting <HI>Kinkel,</HI> in the redeeming whereof it was upwards of 3500 Merks, during which &s;everities <HI>Kinkel</HI> was forced to remove from his own hou&s;e to live at a great di&s;tance from the Bi&s;hop, and was &s;hortly after denunced fugi|tive by the Lords of His Maje&s;ties Privy Council for not compearing when ci|ted for Eccle&s;ia&s;tick Non-Conformity, and it is ea&s;ie to judge if <HI>Kinkel</HI> under &s;uch circum&s;tances had great Encouragement to enter into an expen&s;ive pro|ce&s;s again&s;t one &s;o well &s;tated as <HI>Kinaldy</HI> was at that time, for the &s;tories <HI>Kinal|die</HI> tells of his own &s;ufferings, I &s;hall not trouble His Grace and this Honour|able Court with the true account of the Matter of fact, which would be little to <HI>Kinaldies</HI> Credit, only it is clear he was not fined for refu&s;ing to be a <HI>Mili|tia</HI> Captain; But on the contrar did accept and exerci&s;e that Imployment though indeed he was fined &s;ome time after for having cowardly de&s;erted when there was Appearance of Action.</P>
<P><HI>Kinaldies</HI> fourth Rea&s;on for refu&s;ing the de&s;ire of my Bill is, That during the time of <HI>Kinkels</HI> Confinement to <HI>Edinburgh,</HI> and when he was &s;o much as under a Denounciation or intercomuning, he might have rai&s;ed a Summonds &amp; given a Citation, which would have &s;topped Pre&s;cription, and that in the year 1684 the time of <HI>Kinkels</HI> pretended intercommuning, he did advocat a Cau&s;e at <HI>Kinaldies</HI> in&s;tance again&s;t him, and did &s;everal other Acts.</P>
<P>It is an&s;wered, 1<HI>mo.</HI> I am not &s;eeking Deduction of any years wherein I was only confined, but only during my intetcommuning and Inditement. 2<HI>do:</HI> It is denyed that in the year 1684. I was <HI>valens agere,</HI> it is true indeed that <HI>Kinaldy</HI> having at that time rai&s;ed a Proce&s;s again&s;t me &amp; my Tenents, an Advo|cation was exped in their Name, which could not have been in my own, &s;eeing being denounced and intercommuned, no Lawyers could at my in&s;tance have mannadged that, or any other Proce&s;s, as al&s;o I had not <HI>per&s;onam &s;tan|di in Judicio</HI> upon the accounts fore&s;aid.</P>
<P>It is further repre&s;ented for me, that <HI>Kinaldie</HI> is ungenerous, &s;o frequently to mention my debts, &s;eeing the other E&s;tate belonging to my brother who granted that renounciation in favours of <HI>Kennaldy</HI> was tran&s;mitted to me with the Burden of the &s;aid debts.</P>
<P>And &s;eeing by the grounds of the common Law, and upon the &s;ame rea&s;on that his Maje&s;ties Commi&s;&s;ioner for the time, and the Honourable E&s;tates of Parliament, reponed per&s;ons le&s;ed again&s;t &s;horter pre&s;criptions, they ought al&s;o to be reponed again&s;t long pre&s;criptions; And &s;eeing <HI>Kinkel</HI> is able to de|pone&punc;
<PB N="4" REF="3">
that as &s;oon as ever he was Ma&s;ter of the fore&s;aid Wood&s;et, which was carried away with the re&s;t of his Writes when a Gari&s;on was put in his hou&s;e, he &s;ent it to his Writer, to the effect he might rai&s;e &s;ummonds of Reduction, which furder clears that the only rea&s;on of <HI>Kinkels</HI> forbearing this Proce&s;s &s;o long, was his not being in a cappacity to pro&s;ecute it.</P>
<P REND="indent italic">May it therefore plea&s;e his Grace the Lord High Commi&s;&s;ioner, and the Right Honourable E&s;tates of Parliament, not only to repone <HI>Kinkel</HI> again&s;t &s;o many of the years of this Pre&s;cription, as run again&s;t him while he was not <HI>valens agere</HI> by rea&s;on of Denounciation intercommuning and a Proce&s;s of Trea&s;on depending again&s;t him; But al&s;o to give &s;ome effectual relief to his &s;wae di&s;tre&s;t and ruined Familie, in compen&s;ation of his grievous and long &s;ufferings.</P>
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