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<DATE>2013-11-12</DATE>
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<NAME>Judith Siefring</NAME>
<RESP>MURP</RESP>
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<ITEM>Proofed and reviewed as part of batch Z130510.pdcc.</ITEM>
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<IDG S="marc" R="OX" ID="B01461">
<STC T="W">A4315B</STC>
<STC T="C">R172625</STC>
<BIBNO T="oclc">51617776</BIBNO>
<VID>175128</VID>
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<DIV1 TYPE="text">
<PB REF="1">
<HEAD>Unto his Grace, His Maje&s;ties High Commi&s;&s;ioner, and the Right Honourable the E&s;tates of Parliament The Petition of <HI>JOHN AYTO&V;N</HI> of <HI>KINNALDIE.</HI></HEAD>
<OPENER>Humbly &s;heweth,</OPENER>
<P>THAT where in the year 16<GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter">5, Your Petitioners Father <HI>David Aytoun</HI> of <HI>Kennaldie,</HI> having granted a woodlet to the Decea&s;t <HI>Robert Hamiltoun</HI> of <HI>Kinkell,</HI> of his Lands of <HI>N<GAP DESC="illegible" RESP="pdcc" EXTENT="2 letters">ther Kennaldie,</HI> with the pertinents for 11500 Merks, and in the year 1644; The Wood&s;et being Redeemed, the Decea&s;t <HI>John Hamiltoun</HI> of <HI>Kinkell,</HI> who was Heir &s;erved, and retoured to the Decea&s;t <HI>Robert Hamiltoun</HI> of <HI>Kinkell,</HI> his Father did Di&s;p<GAP DESC="illegible" RESP="pdcc" EXTENT="2 letters">e the &s;aid Woodlet Lands&punc; and all Right he had thereto, in fa|vour<GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter"> of the &s;aid <GAP DESC="illegible" RESP="pdcc" EXTENT="1 span"> <GAP DESC="illegible" RESP="pdcc" EXTENT="2 letters">+ing Infe&s;t thereupon, has continued <GAP DESC="illegible" RESP="pdcc" EXTENT="1 span"> of by him&s;elf, and your Petition|er: Who is Heir &s;erved and Retoured <GAP DESC="illegible" RESP="pdcc" EXTENT="1 span"> the &s;aid year 1644, which is now 50 years, and upwards, without the lea&s;t interruption what&s;omever. And <HI>Alexander Hamiltoun</HI> of <HI>Kinkell,</HI> who is Heir &s;erved and retoured to the &s;aid <HI>John Hamiltoun</HI> his Brother, who was Heir &s;erved and retoured to the &s;aid <HI>Robert Hamiltoun</HI> their Father, did intent a Reduction thereof before the Lords of Council and Se&s;&s;ion, which a &s;een and returned. But becau&s;e he found that the &s;aid Di&s;po&s;ition is Pre&s;crived, <GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter">o that he cannot quarrel the &s;amen. He has given in a Petition to Your Grace, and the Honourable E&s;tates of Parliament in mo&s;t general Terms; wherein as he does not mention your Petitioners name nor intere&s;t, &s;o neither does he conde&s;cend again&s;t whom the de&s;ign of the Petition is; But mo&s;t cunningly and &s;ubtily after repre&s;enting &s;ome lo&s;&s;es he had &s;u&s;tained in the Late Government for Eccle&s;ia&s;tical Non-Conformi|ty, by impri&s;onment, confinements, intercommunion, and other hard&s;hips, he con|cludes the Petition thus, That in regard he was expo&s;ed to the runing of Pre&s;cription during the time of his troubles, is may be declared by your Grace and Honourable E&s;tates of Parliament, that fourteen years may be deduced from the years of Pre&s;crip|tion (&s;eeing as he pretends) during that time he was <HI>non volens agere.</HI> By which Con|clu&s;ion of the &s;aid Petition, it is evident that the &s;amen is contrived not &s;o much for <HI>Kinkels</HI> reparations of his &s;ufferings in the la&s;t Government, as for expo&s;ing your Petitio|ner to new &s;ufferings under this; Tho he may compare with him even in the la&s;t Govern|ment, being fyned in 2000 Merks, which he payed for his Ab&s;ence from <HI>Bothwel-Bridge:</HI> And being put to great Expences by a Proce&s;s before the Council, in declining to be a <HI>Militia-captain,</HI> immediatly before this <HI>happy Revolution;</HI> And if &s;uch a General Act as this &s;hould pa&s;s in his favours, without citeing this your Petitioner again&s;t whom the main de&s;ign, Scope &amp; Aim of <HI>Kinkels</HI> Petition runs; then your Petitioners Defence of undoubt|ed pre&s;cription, is altogether fru&s;trat and elieded, and the Matter being of great im|port to your Petitioner, and of a dangerous preparative to others, who may be equal|ly concerned in the like ca&s;es, and might be totally ruined by &s;uch a generall Act. Therefore your Petitioner humbly beggs pardon to repre&s;ent to Your Grace, and Ho|nourable E&s;tates of Parliament, the Grounds and Rea&s;ons following; why the &s;aid Pe|tition and de&s;ire thereof cannot be granted. And, <HI><GAP DESC="illegible" RESP="pdcc" EXTENT="1 word"></HI> There being a Reduction of the &s;aid Right, depending before the Lords of Se&s;&s;ion, they are &s;ufficient and competent Judges to decide in matters of pre&s;cription, and to determine whether any years of <HI>Kinkels</HI> intercommuning &s;hould be allowed; But it is a thing alto|gether impracticable, by &s;uch general Acts to anticipate the Lords of Se&s;&s;ion their De|ci&s;ions, in Proce&s;&s;es depending before them, e&s;pecially when the Parties con|cerned are not called. 2<HI>do:</HI> The rea&s;on is evident, why <HI>Kinkel</HI> all this time did not in&s;i&s;t in his fore&s;aid Reduction becau&s;e the In&s;trumentary witne&s;&s;es in the Di&s;|po&s;ition were then living, who were pre&s;ent when the &s;ame was Sub&s;crived, and knew that the di&s;poner was in perfect health and vigour of Body; And now they having dyed within the&s;e few years; And likewayes &s;everall other extrin&s;ick witne&s;&s;es who were daily conver&s;ing with him, therefore he takes this oportunity, knowing the difficulty
<PB REF="2"> of finding a Probation <HI>in re tam antiqua,</HI> and if this had not been <HI>Kinkels</HI> de&s;ign, what hindered him all the time that judge <HI>Ker</HI> his brother in Law was in Power, and one of he Judges of the Nation, and an eminent Lawyer, he did not then rai&s;e a reduction, when the matter was recent, and he could not pretend he was <HI>non volens agere.</HI> 3<HI>tio.</HI> If this Di&s;po&s;ition were reduced, it would involve your Petitioner in upwards of 60000 Merks, and although he had &s;everal pur&s;uits again&s;t him, both for relief of Cautionries, and other Debts, again&s;t which, he defended mo&s;t litigou&s;ly, and wherein there were four &s;everal Su&s;pentions di&s;cu&s;&s;ed, and &s;everal grounds of Compen&s;ation founded upon; Yet never a word of this Debt, which certainly he would have done, if there had been any ju&s;t ground therefore, both con&s;idering the greatne&s;s of the Summ, and <HI>Kinkells</HI> bad circum&s;tances, his E&s;tate being totaly ruined by Debt the&s;e many years by gone: Like as after your Petitioner had prevailed by obtaining Decreets of the Lords; He di&s;|poned &s;everal others of his lands in my favors, in &s;atisfaction of the &s;umms di&s;cerned; As al&s;o <GAP DESC="illegible" RESP="pdcc" EXTENT="1 span"> &s;ingle and liferent E&s;cheat, for his further &s;ecurity of the <HI>new conque&s;t,</HI> did obtain Decreets of General &amp; &s;pecial declarator again&s;t him after mo&s;t litigious debates, &amp; during all the time of the dependence of the&s;e proce&s;|&s;es, there was never &s;o much as mention made of this Reduction. 4<HI>to.</HI> If the point of pre&s;cription were to be di&s;cu&s;t before the Lords of Se&s;&s;ion, before whom the Reduc|tion is depending. It is conceived, that there could be no pretence why Pre&s;cription &s;hould not run, during the time <HI>Kinkel</HI> was confined to the Town and Suburbs of <HI>Edin|burgh,</HI> where he had Liberty to pa&s;s and repa&s;s for many Years, So that he being re&s;i|dent in <HI>Edinburgh,</HI> and never being &s;o much as denounced for not appearing, cannot be pre&s;umed that he was in the Terms of an Intercommuning, but might certainly have rai&s;ed a Sumonds, and given a Citation, which would undoubtedly have &s;tooped Pre&s;cription. And in the year 1684, your Petitioner having pur&s;ued <HI>Kinkel</HI> and his Tenants before the Stewart of the Stewartry of St. <HI>Andrews,</HI> he did then Advocat the cau&s;e, &amp; did many other Acts in the years of his pretended Intercommuning, So that in &s;ome Ca&s;es, it &s;eems he was <HI>Valens agere,</HI> but in this Ca&s;e he de&s;igned not to be, but by his own dilict, has undoubtedly de&s;igned to take advantage of your Petitioner. And it is impo&s;&s;ible, That in Law or Ju&s;tice, there can be Deduction of years, that he was under the &s;aid Impri&s;onment, Confinement, or willful and de&s;igned lurking up and down the Countrie, occa&s;ioned chiefly by Captions, for Civil Debts, not yet pay|ed, nor removed; And under which Captions <HI>Kinkel</HI> yet lyes, during which time no|thing could hinder him to have rai&s;ed a Proce&s;s of Reduction again&s;t your Petitioner. By all which it is evident, That he has had a de&s;ign again&s;t your Petitioner, to bring him to unnece&s;&s;ary Trouble, Charges and Expence&s;s</P>
<P><HI>In Re&s;pect of all which, It is Humbly craved, That my Lord Commi&s;&s;ioner his Grace, and Honourable E&s;tates of Parlia|ment, would be plea&s;ed altogether to Reject the &s;aid Peti|tion, at lea&s;t the la&s;t part thereof, relating to Pre&s;crip|tion, wherein your Petitioner is &s;o much concerned, and the &s;amen relating to a Proce&s;s depending before the Lords of Se&s;&s;ion; Or otherwayes to allow me to be heard before any &s;uch general Act pa&s;s in Favours of</HI> Kinkel, <HI>In Ca&s;e your Grace, and Honourable E&s;tates of Parliament &s;hould think fit, to take the &s;amen to your Con&s;iderations.</HI></P>
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