Lauchlan M'Intosh, in Inverey, aged near thirty years, unmarried, solemnly sworn, purged of malice and partial council, examined and interrogate by the sworn interpreter aforesaid, Depones, That the panel, Duncan Clerk's father, his house is within less than a quarter of a mile of the deponent's house: That upon the afternoon of that day in which Serjeant Davies was amissing, as he thinks, or at least the afternoon of the day following, he cannot be altogether positive which, he saw Duncan Clerk, panel, come from the hill to his father's house, with a gun in his hand, and a sort of grey plaid about him: That he does not remember that he saw him about his father's house before that time in the afternoon of that day.Causa scientiæ patet.And this is the truth, as he shall answer to God.
Jean Davidson, spouse to Gregor Keir, in Inverey, aged thirty years, married; who being solemnly sworn, and purged of malice and partial council, by the sworn interpreter aforesaid, Depones, That she lived in the same town with Duncan Clerk, the panel's father, who is now dead: That the evening of the day upon which Serjeant Davies was first amissing, she saw Duncan Clerk, the panel, return from the hill to his father's house about sun-setting, having a plaid upon him, with a good deal of red in it, but whether he had a gun in his hand the deponent did not observe: That Duncan Clerk's father was that day working among his corns; and the deponent did not see the said Duncan about the town till the evening, as above deponed upon. And further depones, being interrogate for the panel, That when she first saw Duncan Clerk, she was among the corns with his father a little below the town, and that Duncan was about a gun-shot from her, coming towards his father's house from the hill, and that he came near to the place where she was with his father.Causa scientiæ patet.And this is the truth, as she shall answer to God. And this deposition is signed by the foresaid sworn interpreter.
Lauchlan M'Intosh, servant to William Grant of Burnside, aged twenty-one years, solemnly sworn, purged of malice and partial council, examined and interrogate, Depones, That he was a servant to Michael Farquharson in Dubrach, in whose house Serjeant Davies quartered: That he saw the Serjeant have a little pen-knife, upon the end of the haft of which there was a seal for sealing of letters, and he heard the Serjeant say that was the use he made of the said seal: That he saw Serjeant Davies leave his master's house about sun-rising that day upon which he was amissing; that he never saw him since: That about two years thereafter, being on the hill with Alexander Macdonald the panel, and the said Alexander Macdonald had in his hand a pen-knife, which the deponent saw, very like the pen-knife which Serjeant Davies had above mentioned: That the deponent, upon seeing that pen-knife, told Macdonald that the pen-knife he then had was very like Serjeant Davies's pen-knife, and Macdonald made answer that there were many siclikes: And further depones, That he saw the Serjeant have a green silk purse, in which he saw the Serjeant put in and take out several pieces of gold: The deponent does not remember what the handle of the Serjeant's knife was made of, nor does he remember what was engraven on the end of the handle of the pen-knife which the Serjeant had, nor the end of the handle of the pen-knife which Macdonald had, but that both seals were white.Causa scientiæ patet.And this is the truth, as he shall answer to God. And depones he cannot write.
John Brownin Drumcraggan, aged sixty years, or thereby, solemnly sworn, purged of malice and partial council by the sworn interpreter aforesaid, and by him interrogate, Depones, That he was ground-officer for the lands of Inverey, and was so at the time when Serjeant Davies's body was amissing: That he was ordered by the Chamberlain of Inverey, to call out the country people in search for Serjeant Davies's body, which accordingly he did search for with the country people for two days, without finding it: That the last of the two days, as the deponent and the country people were returning home, and had given over the search, the panel, Duncan Clerk, challenged the deponent for troubling the country people with such an errand, and upon this the deponent and the said Duncan Clerk had some scolding words.Causa scientiæ patet.And this is the truth, as he shall answer to God. And depones he cannot write. And this disposition is signed by the foresaid sworn interpreter.
Follows the Witnesses adduced by the Panels in exculpation.
CaptainJohn Forbesof New, aged forty-five years, married, who being solemnly sworn, purged of malice and partial council, examined and interrogate, Depones, That James Small having suggested to the deponent that it might be proper that Duncan Clerk the panel's wife, should be examined upon what rings she had in her possession, and that some other witnesses in relation thereto, might be precognosced, presented a petition to the deponent, as the next Justice of Peace to where she lived, craving, to the purpose above mentioned: That the deponent went for that end to Braemaar; and she being summoned to appear at the Castletown of Braemaar, appeared before the deponent, and declared, in substance, as follows: That since she was married, a small brass ring, which she then presented to the deponent, and a gold ring which she got from her mother, and wore sometimes, were the only rings that she had since her marriage; and that before her marriage she got a copper ring from one Allan M'Donald, brother to James Macdonald, in Allanquoich, with a round knot of the same metal raised upon it, which, the summer before she was married, she gave to Alexander M'Intosh alias Rioch, then a glen-herd, and now servant to Thomas Gordon in Fetherletter, in Strathaven, and that she was married to the said Duncan Clerk, panel, in harvest 1751.Causa scientiæ patet.And this is the truth, as he shall answer to God.
Duncan Keir, in Glenmuick, aged twenty and upwards, unmarried, solemnly sworn, purged and interrogate, Depones, That the day that the Braemaar men were going to the Michaelmas fair in Strathaven, which was the day before the said fair held, he saw Duncan Clerk, the panel, at Gleney, where the deponent then lived, before he and the other shearers there had got their dinner, and that they dined sometimes later and sometimes more early, and cannot tell at what time they dined that day, but the sun was a good while high when he saw him: That he had on a plaid, which he thinks was grey: That Gleney is a mile farther up the water than Inverey towards the hill; and the next day, after he saw the said Duncan Clerk as above, he heard that Serjeant Davies was amissing.Causa scientiæ patet.And this is the truth, as he shall answer to God. And depones he cannot write.
Elizabeth Macdonald, in Tulloch of Invercauld, aged twenty-eight years, unmarried, solemnly sworn, purged and interrogate by the sworn interpreter aforesaid, Depones, That the day before she heard Serjeant Davies was amissing, she saw Duncan Clerk, the panel, at the shearers of Gleney, but did not observe from whence he came: That she does not remember that he had either a gun or a plaid, but thinks that he had a short blue coat upon him, and that Gleney is a mile farther up the water towards the hill than Inverey: That when she saw the said panel it was before dinner, which they took early that day, being betwixt twelve and one; and that Duncan Keir, the preceding witness, was one of the said shearers; and that Gleney is about a mile from Glenconie.Causa scientiæ patet.And this is the truth, as she shall answer to God. This deposition signed by the said sworn interpreter.
The Lords Commissioners of Justiciary fine and amerciate Ronald Macdonald, brother to James Macdonald in Allanquoich, and Alexander MacintoshaliasReoch, now servant to Thomas Gordon of Fetterletter, in Strathaven, and each of them, in the sum of one hundred merks Scots money, for their not appearing this day and place, to bear leal and soothfast witnessing, in so far as they knew, or should be asked at them, anent the said panels, Duncan TerigaliasClerk, and Alexander Bain Macdonald, their guiltiness of the crime of murder mentioned in the said indictment, raised at the instance of his Majesty's advocate against them thereanent, as they, who were lawfully cited for that effect, thrice called, and not compearing.
The Lords ordain the assize forthwith to inclose in the Exchequer-Room, and to return their verdict against six o'clock in the afternoon to-morrow, in this place; and ordain the haill fifteen then to be present, and the panels to be carried back to prison.
CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo Burgi de Edinburgh, Duodecimo die Mensis Junij, 1754, per honorabiles viros Carolum Areskine de Alva, Justiciarium Clericum, Dominum Gilbertum Elliot de Minto, Magistros Alexandrum Fraser de Strichen, Patricium Grant de Elchies, et Hugonem Dalrymple de Drummore, Commissionarios Justiciarios dict. S. D. N. Regis.Curia legittime affirmata.Intran.Duncan TerigaliasClerk, andAlexander Bain Macdonald,—Panels.Indicted and accused as in the former Sederunt.The persons who past upon the assize of the said panels, returned their verdict, in presence of the saids Lords, whereof the tenor follows:At Edinburgh, the twelfth day of June, one thousand seven hundred and fifty-four years.
CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo Burgi de Edinburgh, Duodecimo die Mensis Junij, 1754, per honorabiles viros Carolum Areskine de Alva, Justiciarium Clericum, Dominum Gilbertum Elliot de Minto, Magistros Alexandrum Fraser de Strichen, Patricium Grant de Elchies, et Hugonem Dalrymple de Drummore, Commissionarios Justiciarios dict. S. D. N. Regis.
Curia legittime affirmata.
Intran.
Duncan TerigaliasClerk, andAlexander Bain Macdonald,—Panels.
Indicted and accused as in the former Sederunt.
The persons who past upon the assize of the said panels, returned their verdict, in presence of the saids Lords, whereof the tenor follows:
At Edinburgh, the twelfth day of June, one thousand seven hundred and fifty-four years.
The above assizehaving inclosed, and having made choice of Robert Forrester to be their chancellor, and William Sands to be their clerk; and having considered the criminal indictment pursued at the instance of William Grant of Prestongrange, Esq., his Majestie's Advocate, for his Majestie's interest, against Duncan Terig alias Clerk, and Alexander Bain Macdonald, both now prisoners in the tolbooth of Edinburgh, panels, with the Lords Justice-Clerk and Commissioners of Justiciary, their interlocutor thereupon; together with the depositions of the witnesses adduced for proving thereof; and the depositions of the witnesses adduced for the exculpation of the panels, they all, in one voice, find the above-named panels not guilty of the crimes libelled. In witness whereof, their said chancellor and clerk, in their names, have subscribed thir presents, place and date foresaid.
The Lords Justice-Clerk and Commissioners of Justiciary, in respect of the foresaid verdict of assize returned against the said Duncan TerigaliasClerk, and Alexander Bain Macdonald, panels,assoilziethem simpliciter, and dismiss them from the bar.