THat where your Lordships have been pleased to find the Deforcement and Ri­ot Lybelled at the Instance of Pitliver and Tulloch proven; and have decern­ed me, as I am informed, in a very great Sum. I do with all respect to your Lordships, beseech the following Reasons may be considered, for clearing that I cannot be lyable on either of these Accompts.

And First, as to the Deforcement, I do with submission contend there was none: For there can be no Deforcement, where there is no Messenger: And Robert Dallas alledged to have been Deforced, was no Messenger. And I did produce an Attestation from the Lyon, for clearing that he was deprived; and his deprivation Intimat but a few Weeks before his pretended Deforcement.

I know it was urged, 1 mo. That he was Habite and Repute Messenger. 2 do. That he was deprived only upon a Formality by the Lyon, and for no ground of Malversation. But to these my Answers are plain. And to the First, it is Answered, that the depri­vation, being within a few Weeks before the pretended Act of Deforcement, and the De­privation happening to have been Intimat and published at the Mercat Cross of Inver­ness, where the Deforcement is alledged to have fallen out, there was not time nor pretence of Habit and Repute, which is inferred from length of time, and frequency of Acts. 2 do. Tho Habite and Repute may serve the turn in Civil actione; yet it is not sufficient to infer a Crime, or to be regarded, where the Que­stion is to be about Punishment, where things are to be Real and not Suspposed. 3 tio. I did at the Bar give a new Libel to the Pursuers: And I do positively offer to prove, That Dallas his Deprivation was publickly known; which excludes all pretence of Habite and Re­pute.

And lastly, the pretence, That he was deprived upon a light occasion. I answer. whatever was the occasion of his Deprivation, he was deprived, & was no Messenger: And the Lyon Court who gave him his Office and Authority, has solemnly taken it away: And if he had believed himself lesed, he ought to have applyed to the Lords of Session: But the truth is, he as Messenger having found Caution for his Office, and to perform cer­tain other Dueties conform to the Act of Parliament, under Condition to be depriv­ed if he should Faill, And having failled he was most justly deprived and his deprivation was fairly intimate by the Lyon Court: And therefore he was no Messenger; and conse­quently there could be no Deforcement. And the Pursuers are to blame, who used such a Messenger after the legal form of Intimation.

Nor is this all, though in my humble Opinion, this is very much. But further. it is evident, That the Execution of Deforcement in the essential parts of it, is not pro­ven. And I must Beg leave to say, That however in Civil Cases the Execution of a Messenger is probative; yet in Cases inferring punishment, it is but considered as a naked assertion; unless it be astructed by the Depositions of the Witnesses unsuspect: Nor is it sufficient to be Subscribed by the Messenger in such Cases; because even his Oath would be refused, in respect of the Personal Injury in the Lybel done to himself. And so it is, this Instrument is not only not astructed; but it is destroyed by the Testimonies. First, because the Testimonies differing from what they have Subscrived under their hand, and each from another, do render both the Execution and themselves suspect: And your Lordships have found it in a Case perfectly paralel to this within this few days, betwixt the Earl of Tullibardine and Balnagoun. 2 do. It was to have been proven the Blazon was displayed; that I was Wanded or Apprehended; and that it had been Intimat by whose Authority, and at whose Instance: Seeing it was so insert in the Execution, and that some of these, especially the Displaying the Blazon, as the differenc­ing Badge of a Messenger from any other Leidge, and so an indispensible solemnity; as McKenȝie in his Criminals pag. 259. And Stair. in his Institut. pag. 725. Num. 14. and 738. N. 7. expresly hold it as a principal. And Stair. ut supra pag. 730 hold it as a principal that an Exauctorat Messenger may be dispised, if he cannot prove that he had Blazon displayed yet of this the Witnesses prove nothing. Nay on the contrary, they De­pone, they did not see the Blazon, They Depone they did not see me touched with the Wand an [Page 2] of Peace; & none of them did so much as hear Pitlivers Name mentioned. I desire to know if they can produce the Testimony of any Lawyer, asserting, that a man without any spe­cial Mark or distinction by Blazon, or even a Messenger with his Blazon Displayed, without so much as a Warrand, or the Parties Name Intimat verbally, is a Legal Execution of a Caption: And without a legal Execution of a Caption. there can be no deforcement 3 ^tio. Though the Instrument bears other Witnesses to have been present, beyond all manner of exception; yet the Pursuers has only adduced Bayn, designed Tullochs Ser­vants, and a very Boy, who did not so much as sign the Execution, untill the Messenger was Dead. And I offer to prove, That other of the Witnesses being required to sign the Execution, refused it; because it was not true. So that it remains, Here is a Deforcement upon which I am fined in a very great Sum, whereupon my Escheat may fall without either Messengers or Execution. And it was no marvell though the Witnesses should Vary a little from themselves and the Execution; because I offer to prove. That the Exe­cution was filled up here in Edinhurgh, even after the Messenger was Dead: And I shall use no other Witnesses then these already cited, or the Pusuers themselves and their Agents: And I do contend, That an Execution so redargued, and sent up blank is not to be considered as an Execution at all.

I omit to tell your Lordships, I had no Accession to the Acts of Violence and Deforce­ment, and the Pursuers had only the Confidence to urge the Crime to have been com­mitted chiefly by my Servants.

As to the Riot, I detest and abhore it: It is neither suitable to the Character I have the Honour to bear, nor to my Breeding nor Temper. It is proven indeed, That Mr. William Baily, and other of the Defenders, were guilty of the Riot: But that I had any Accession to it, I desire the Pursuers frankly to say, what part of the Probation clears it. They did libel indeed, That Tulloch was carried to my House, to my Closs, through a Town in Day-light, ignominiously; and there Beat. But they have not one single Testimony to prove it; though the Carrying Tulloch thorow the Town in Day-light, might certainly have been proven, if it had been True. Nay, I positively offer to prove, That the Castle of Chanery, was not the ordinary place of my Residence; and that I was alibi all that Day.

The Pursuers had not the Confidence to alledge, I was guilty directly. They did in­deed pretend to have the Matter cleared by their own Oath; which is New, in Matters Criminal. They did likeways alledge, That I should be liable as an Highland Chief. But I humbly presume, your Lordships did not proceed upon that Ground. These con­sequential Hitts, do infinitly more concern the Nation, than me: It were above measure hard, that I, or Persons in the like Circumstances, should be exposed for the Riots of their Servants to pay such great Sums, with Imprisonment, and other great Damnages; espe­cially when these Servants were never required, till they were out of my power, they having gone out of the Kingdom long before, and had no residence on my ground. This is not my Case alone, but is the Case of all Noblemen and Gentlemen in the Highland Countries; nay, and I may say, in the Nation: For there is a general Clause in the Act of Parliament founded on. But I am perswaded your Lordships could not extend that Matter, tho the Pursuers were forced, through the straitness of their Cause, to urge it.

I am as fully perswaded, That the Odious Misrepresentations against me, had no influ­ence in the Decision: And therefore I shall not trouble your Lordships with a long Vindication of my self, as to my General Management and Conduct: I am perfectly satisfied your Lordships will proceed only on Probation, and the State of the Case, as is laid before you.

May it therefore please your Lordships to consider these Principles of Law, and to find there is no De­forcement proven: And that I had no Accession to the Riot committed: And therefore to Assoilȝie me, and Liberate me from my Imprisonment.

And your Petitioner shall ever Pray.