| Description | Letter starts by discussing difficulty travelling because of excessive frost making the roads slippery.
Letter relates to legal case between Herdman and another party, and letter discusses the involvement of John Young, Sherriff of Kincardineshire, in the case. Garioch argues that Herdman has been oppressed by Young advising those who brought the action against Herdman, as well as hearing the case as judge. Moves on to discuss legal process with Duthie and Mr Young’s involvement in this case. This process appears to relat to a property, possibly called Dollarly, disponed by George McKenzie to Duthie. Discussion centres around the town of Stonehaven’s erection as a burgh of barony.
Written by Alexander Garioch at “Margie”, 2 December 1744.
The “Notes from Mergy” document is in the same hand and addressed to Will. It relates to the “miss carriage of your action” which appears to relate to the matter discussed in the December letter, John Young’s involvement in a case brought against William Herdman by Mr Bartlet.
D[ea]r Will,
Haveing been three four days in t’other/ syde of the hills I only with difficulty gott home last night/as the rods were extreadndly[?] slipperie by the excessive frosts./ I observe with pleasure that your wif seemes to be in a/ better way, and that you & young folks are recovereing of/the cold.
I GOT Mr Burness accompt with Mr Thomsons discharge/ on it. I observe by Mr Thomsons that he is reasoneably apprysed/ of the gross ommissions in the printed memoriall for you agt/ Young. The Memoriall in my apprehension from beginning to end/ seems to be laid in so difficdent a yielding way as if the pursers melyned the defender or criminall should escape. Nor doe I think/ it the proper way to sett matters att right by suggestions from. The barr in tyme of advyseing mutuall memorialls. I hope ye/ have not been deficient neither in mony or informat[ion] to / discharge your parte and if yo[u]r doers will not Nottice facts[?]/ & circumstances as they exist in truth & explicitly laid before them Oberg[?] over again in w__ening they are to blaim. Meanty[?] its my opinion ye ought press your doer To sett ommissions &/ oversights in a clear light by ane additionall memorial & / not trust all to verbeall suggestions from the barr. The judges / use to argue & determine themselves in repery[?] on the import of/ what is laid before them in print mutually by the parties and/ from a paper I used nin the process by Mr Maitland Ite/ seemes to be the only person cautioner[?] on whom the trouble of ane additionae/al memoriall or reclaimeing bill should be laid.
As a prmll[?] ane essentiall point is that Young has appmallv/er in his officer & oppressed you personally, In so farr as while / he was a jjudge & active in that capacity He did solicite & Adyse the action lybelled to be brought against you before himself Yea/ Not only so but he actually ouned or ___[?] the lybell & Directed every step in the Cause. As he was guilty of this the pe_all ane [Page 2] oppressive practice with respect to youreselve as purs[ue]r. To/so he may not only be considered as a criminal in this single act only your lybell In formalite Condesecends on all the off the like nature execute upon the sundrie other lybelled for inferreing against him that he is noe ane oppressor in ane single act but universeall against all whom the oberlabe[?] and the intention of the process is not with a view to a patrymoniall redress to each person aggrieved yet the particular as to yorselfe being proved and all ? sound[?] of his other generall practices condescended, the same I hope cannot miss to support the conclusion lybelled against him in terms of the special act of parliament[?] & statute sett further in the lybell the more especially that the process is att your owne the lo[rd] advocats instance. And I admire that in all the steps process[?] Your doors have never so much ag notticed that the action[?] has the advecay[?] concurrened[?] adhibit and would be glad to know why the same is omitted or concealed in the debate.
As to the process with Duthie[?] somce Mr Young is cited on a diligence he ought[?] depone & exhibite all the writs[?] he has concerning[?] George McKenzie and also depone if he ever had any others[?] or fraufully concealed abstracted or putt them away or knows or suspects where such writs are or may be found. Ife he does not appear in termes of the first diligence a second diligence ought[?] have been taken out a7 mr Youn putt to it for his pretence that they shewed me Mckenzies charter is most false. He never gave or shewed me one scrapp of writes concerning Mckenzie nor did I ever see the least scrapp by any other hand, and I wonder why your does delayes takening out a second diligence in common course as ye & he may be certain Mr Young will use what stuff[?] & / aint is in his power. Mean tyme as Dollary[?] stands in feft in Mckenzies/whole hoyrs[?] years &s within the toune Stonehyve lyeing & bounded / as in Mckenzies originall rights, as Dollaries to infeft is long prior [page 3] to that of Duthies which proceeds from Mckenzies the same author, I/cannot conceive why any demur should arryse in preferring/the prior infestment, more especiallie that Dollary is infeft in all/ the parlar hoyrs[?] as they pwer possess by specifull tenents, and I think if absurd in Duthie to pretend that his house disponed by Mckenzie was a separate thenemente & discontig[?] from McKay’s other horyrs[?] disponed to Dallerdy. The Toune of Stonehyve by errecion / is a burgh of Barronie all unite & holders of the same superior/ the barron or superior may has parcel out the propertie to different/proprietors to be holden of himself But that does not dissolve/the union and errection of the Burgh. Such a superior might not/withstanding dispone his right or superiority of the whole burgh/ in generall to a particular person, & when ane infestane followes/ on that generall disposition of the whole burgh, will any person/ pretend that this general Infestment on the whole burgh of /barony does not comprehend each particular yeard and pertenance[?]/ within the burgh the noe specally denominate/ or could ane after disposition from the same author to some/ particular tenements (perhaps) some what disionlighning to the rest of / the burgh within its union & erection derogate from the / first generall right, will undo. Just so may any heretor in/genearll dispone his whole propertie within that unit burgh and afer dispositon to a particular house of the genereall/ propertie before disponed cannele[?] compeal with or overturn/ the first right. Bugh seperatlie if Duthie say that the house/ disponed by McKenzie to him is a separate & disionliging tenement/ from his other houyrs conveyed to Dollery He might say it in termes/ of time(?) a separate tenement in construction of law is such/ as hold of a different superior & requires a separate infestment/ This is a defence which being proponed by Dallie lyes on him to/ prove it, which being impossible, ergo etc.
I’m much convinced if you doers carefully attend to the infer/mation given, and state the matter to the judges in fact & law as/it ought, you cannot miss of success, meantime believe I am
Yors &c
Al: Garioch
Margie ii dec[mbe]er 1744
Dear Will,
I’m hearely concerned for the Miss carriage of your action and that first and last your case has been so much heglected by your doers notwithstanding they were liberally [?] and had the most full a& plain information that was possible to be given part[icul]arly the stongest instances were used to obleidge them lay the point anent Bartlet in the most plain & open way before the judges as this was the essentiall the only matteriall article of your complaint directly committed against yourselfe as it is founded on a spec[ia]ll statute and that ye subsume[?] in termes of it , I cannot see how the subscription could be avoided nor has much ___ doers hitherto made the least although to defend or a___ that article Item your debtors cann excuse or account for their concealing or sucuthereing[?] so essentiall the only matteriall point is to the matter of great speculation, and of Mouklevie[?] & Mr Stuart[?] are strangers in the cause and are noe [?} with the Memorialls and adyces given Mr Thomson thereanent I’m much afraid they miscarrie in stating the poynt as it ought, and so baffle the last effort mean by me reclaiming they need notice[?].
That by statue 104 pars 7m JA 5th It is enacted that a judge qua She[ri]ff depute or substitute who does not act in the capacity or a judge only But as a solicitor partiall councellor & assiste in processr before himself shall loss & lyne all honor fame & dignity.
That to purs[u]e Herdman in termes of @ statute subsumes that John Young att the tyme while he was Clerk Trust[?] & adviser the Toun of Stonehyve, while he had the trust of the tounes for & evidents & a sellary appointed him by the toune. He did procure from the York Building Company a commission of Bailvary Treasurers[?] or & Clerkship to himself & Wm Barlet as Clerk & Treasurer or directly contrart to & in subversion of the touns right & Funda-/mental constitution. That i_ prosecution of this commission so procured. Ite the said John Young att the tyme while he as sheriff dupte or substitute did adyse & Direct a process att Mr Bartlets instance to be brought before himself against Mr Herdman [page 5] the purs[uers] for impressing the touns whole ____ into Bartlets hands a confident of Mr Youngs & a person quyle disqualified for such a Trust by the Touns fundamental rights. That My Young while / sheriff & judge in the action Not only directed & advised the raising & / commencing of the same But He Young framed & di__ed the / very lybell at Bartlet’s instance & directed how it was to be / ________ in before himself. That these circumstances & Facts / ebing true & offered to be proven by the pursuers Herdman / who is the person against whom the abuse was committed .The same / per se must subject Mr Young the defender of the statutory _____? Of the said act & commission of his lybell. The more especially / That this practice of Mr Youngs with regard to Mr Herdman is not the only single instance of Mr Young’s arbitrarily & illegall procedure while in the character of a sShe[ri]ff & judge But that he used also the method against others in the ____ instances lybelled.
I should hope that if your case was justly state to / the judges as the facts above, and illustration in conformity to/ the ability of ane able lawier ye cannot faill of success/ espe[ci]ally that the lords in the case of She[ri]ff of Aberdeen/ have condemned them upon much more slender grounds.
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