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the case of a division between coheiresses. If Haldane's lady was really the eldest, there could be no question that she or her representatives were entitled to the principal messuages, nor could there have been the slightest difficulty in making good this right against Napier and his lady, Elizabeth Menteith. The proper form in such cases was to take out a brieve of division, directed to the Sheriff of the district, who impannelled a jury on the matter, and their decision was put in form " of ane rolment and decrete of the said inquest," upon which proceeded the Sheriff's precept to put the parties in possession. And this accordingly appears to have been the very course of procedure adopted in the case of the coheiresses of Orchardton, with which Mr Riddell illustrates his argument. What, then, was the meaning of the contract in this case, wherein John Haldane consents, grants, and admits, that particular mode of division which was to recognize him and his as eldest portioneris? If he were not eldest portioner, an abortive attempt to effect a contract recognizing him as such is conceivable; but upon the supposition that he was the eldest, why he urged his claim of primogeniture by way of this very unilateral-looking contract; and, moreover, why he was so unsuccessful that all he or his descendants ever could make of it was another unsuccessful attempt,—when, nearly a century afterwards, they try to raise this alleged contract from the dead,—is utterly unintelligible.
The strong inference against the primogeniture of Agnes Menteith afforded by the peculiarity of Haldane's pleas in his litigation with Dernely, we find to be strikingly confirmed by the relative position of the young ladies' names in the Great Chamberlain Roll. Let us look then for some other independent fact to support the inference extracted, in like manner, against Gleneagles, from the very process of transference produced in his favour. The strongest corroboration that could be demanded under the circumstances would be this,— 'produce positive evidence that Elizabeth Menteith did in point of fact possess the messuages which this alleged contract appears to claim for Gleneagles, and that her descendants continued to possess them even after the act of transference in 1562.'—Now it happens that this demand can be most amply satisfied, not only by the record of the Great Seal, but by a host of original parchments still preserved in the Merchiston charter-chest. From the many title-deeds of the Rusky estates in that family, it is proved beyond question that Elizabeth Menteith obtained, along with her share of her father's baronies in the Menteith, all the messuages, that her son enjoyed these by right of inheritance, and that they descended by inheritance, through the lineal male representatives of Elizabeth Menteith, down to the Inventor of Logarithms and his descendants, long after the date of the act of transference of the alleged contract. Nay more, to render this evidence complete, it can be proved from the contemporary titles of the Gleneagles share, that Agnes Menteith did not succeed to any messuages.
This important fact the author of the Tracts was himself the first to observe in the public records; and it is difficult to understand how he could, under these circumstances, for a moment entertain the idea that any " great consequences, in reference to the claim to the earldom of Lennox," could result from his new evidence. Indeed it is clear, upon an attentive perusal of his argument, that the learned gentleman has, after all, instituted a stronger pleading for Merchiston than for Gleneagles, and, with every anxiety in this publication to turn the scale in favour of the latter, from whom he hints that justice has been withheld, the grand result of his discovery, and summing up of the evidence, is " a kind of puzzle that is perplexing."*
Before proceeding to illustrate the valuable evidence for Merchiston derived from the charters of Rusky, I shall throw some further light upon the conduct of Gleneagles in reference to this succession, from which it will appear that, even supposing that the contract of 1485, mentioned in the process of transference 1562, ever existed, which, however, is not proved, there can be no stress whatever laid upon the circumstance that John Haldane claimed the rights of the eldest coheiress of Rusky.
If that gentleman actually maintained such a pretension, it would be nothing remarkable to find that he had done so in the face of the utmost notoriety that Merchiston's lady was the elder of the two sisters. He was at the very time learning a lesson of the kind from Dernely, and there is abundant evidence that Haldane was in like manner pursuing a violent course of usurpation against John Napier and Elizabeth Menteith, and that nothing is more likely than that he should have framed, and attempted to induce that branch of the succession to adopt, some arrangement prejudicial to their just rights.
1. Among the Merchiston papers I find the following document under the privy-seal and sign-manual of James III.
• Tracts, p. 109.
“James, be the grace of God, King of Scottis, till our Stewarte of Menteth and his deputis greting; Forsamekle as it is hevily menit and complenzeit til us be our lovettis, Johnne Naper of Merchamstoune ande Jonete lady Edmondestoune his sister, that quhar be vertew of our lettres direct to you of befor, ye enterit thaim and thar tennendis and gudis in a berne and byr perteining to thaim, oute of the quhilkis Johnne of Haldane of Glenegas and James Haldane his some, with thar complicis, had of befor, with force and violence, at thar awin handis castande furth the corne and oxin pertening to the said Johnne Napar and Jonete, and syne withheld and occupiit the saidis berne and byr; nevertheles the sadis Johnne of Haldane and James, and thar complices, now again has cummyn to the samyn, and masterfully has tain and occupiis thaim, and has of new castin furth thar gudis, corne and catall, but ony resoune, as is allegit, in great lichtlying, contempt, and dissobeying of our autorite, lettres, mandmentis, and charges. Our will is herfor, and we charge you straitly, and commandis you xit as of befor that ye incontinent, efter the sicht of thir our lettres, enter the said Johnne Napar and Jonete, thar tennandis and gudis, againe to the said berne and byre; and that ye keip, mainteine, supple, and defende thaim therin, unvexit and undistrublit be the sadis persounis, and al utheris thar complices perteining to thaim, under the pain of deprivatioune of you fra your Qffice, and al uther panys and chargis that efter may folow ; and that ye suffir thaim nocht to be distrublit unto the decision of the action of summondis betwix the sadis partiis befor us and the lordis of our consale, under the pain forsaid. Delivering our lettres, be you dewly execute and indorsit, again to the berar. Gevin
under our Signet at Edinburgh the first day of October and of our Regne the xxii zere. Per S. D. N. Regis.
This is evidence of very violent and illegal conduct, repeated against the King's authority, and in usurpation of the lawful possession of John Napier and his sister; and it occurs in the year 1482, just three years prior to the alleged contract in 1485 ex facie of which there appears so much assumption on the part of Sir John Haldane of Gleneagles.
2. But there is also among the Merchiston papers a long Latin protest, dated only a few months after the alleged contract, and in reference to the very subject of the division of the Rusky estates and the appropriation of the principal messuages, which places beyond question the fact of Haldane's inclination, and earnest endeavour to deal unjustly and illegally by the correlative rights of Merchiston.
This original instrument narrates, that upon the 4th of October 1485, Elizabeth Menteith personally, and John Napier, chaplain, as procurator for her husband John Napier of Merchamstoun, appeared at the Down in Menteith, and there in presence of William Edmonstone of Duntreath, sheriff of Menteith, and various other witnesses, specially called for the purpose, pro