the eftate of no inconfiderable family was thus granted out, and the gentleman did not think himself at liberty to avail himfelf of it. He was prevailed upon not to do it; but if he had thought proper, he might have availed himfelf of it, and have kept the estate. This brings me to the confideration of the vote now in queftion. The fact feems to be admitted to a certain extent-I wish it had been more fully fo. This eftate of Mr Stewart is an eftate held under the ftricteft entail known by the law of Scotland. He was under the neceffity, in the first place, to violate the conditions of that entail, by making the fubinfeudation to a perfon in confidence. I hope he knew whom to truft.-How he is to get back that estate is more than I know. After he bad made that fubinfeudation, he conveys the fuperiority to Mr Elphinflone, and feveral other perfons. Thefe conveyances were alfo breaches of the entail, to which the heirs of entail were not bound to confent; and if an heir of entail, after he had come into fuch an agreement, fhould think fit to refile, there would be nothing to ftcp the declarator. You cannot alledge your own fraud to ftop a declarator at the inftance of another. Mr Elphinflone is fuppofed to have taken this eftate fubject to be called back in this manner by the heir of entail. It is gravely alledged upon the part of the appellant, and it is certainly true, no body can challenge the eftate but the heir of entail. If he was to challenge it, he could get back the eftate; but till that is done, the eftate does remain, in the eftimation of law, the estate of the voter. But the queftion is not, Whether it is, in the eftimation of the law, the eftate of the voter? But whether, according to the tenor of the tranfaction, a court of juftice can or cannot discover that this is a fpecies of eftate which Mr Elphinfione would not have taken upon his own account, or upon any account but that of the granter's requeft? If you were to lay it down as a rule in the cafe, that provided he had paid ten guineas for the eftate, or 201. or 301. for the conveyance of it, that should prove it a bona fide eftate, you would decide upon one of thefe objections, but not upon the other, and lay down a general rule, which I certainly do not. I am not laying down a rule of law. I am not laying down a rule of evidence. I am not laying down a rule of prefumption, nor, in fhort, any one rule by which the Court can be after wards bound. It must be upon the ge neral ftate of the tranfaction, that the Court can collect, that the estate, instead of being intended to be used or difpofed of by the grantee, was intended between them to be at the ufe and difpofition of the granter; and wherever a cafe affords circumftances fufficient fairly and roundly to raife that prefumption in an unanswerable degree, or to raise it in a degree which the party himself cannot answer, in fuch a cafe as that, the vote must be held to be void. Some cafes have been quoted as de cided by your Lordships, in which it is fuppofed to have been laid down as a rule, that the party himself could not be examined as to the bona fide manner in which he held the cftate. Cafes were adduced, which, prima facie, go fome way towards affording an inference, that fuch were the ideas in your Lordships minds at the time of that decifion. I beg, in the firft place, to remark, that you have laid down no fuch rule by any decifion; confequently, when thefe cafes come to be argued, if ever they fhould again, the queftion will not be, Whether it is abfolutely true that no man can be examined that has once taken the freeholders oath? Many of them do not chufe to do it; and I do not wonder: for though no dif grace nor bafenefs can be imputed to the making a vote of this fort, it cuts a little clofer when the voter comes to take the oath. I do not wonder a man of honour fhould fay, as was faid at the bar, that he took this estate as a real and true eftate for his own ufe and benefit only, and not another's. But I doubt, whether Mr Elphinstone would have sworn so in this cafe. I am fure he would not, if he had felt in his own mind any honorary obligation, even though not a legal one, to ufe or to difpofe of that eftate at the requifition of the granter. If your Lordfhips will caft your eye over the statute, you will find, that the whole fcope and object of the oath was, that the court of freeholders, who had not the means of a long examination, and cannot purfue the cafe in the manner a Court of juftice would, and are to purfue it by fuch fhort means as they have in their power, may have reference to the oath of party.-Are there words in this ftatute that can prevent the Court of Seffion from going farther into fuch a cafe as this? If there are any in it, it is more than I yet know of, or am inclined to agree to, unless I find that the cafes, taken all together, do abfolutely fix it upon Trial of Peter Wishart. apon me by the authority and reafons of them. It is every day's experience in every Court of Juftice in the world, and there is no reafon for the contrary, where a man is giving teftimony upon an eftate, or other intereft which has been drawn into queftion. I know of no intereft whatfoever which can prevent a man being again examined after taking an oath. A cafe occurs to my mind, upon a policy of infurance: A great number of underwriters may have actions brought against them upon the terms of the agreement. It would be ftrange if the broker, or other witnefs examined in the one caufe, could never be examined again: It would be extraordinary if he could fay, I have been fworn in a cause already, you cannot examine me again. In the Court of Chancery there is no fuch rule-a perfon's being fworn upon one caufe, will not prevent his being examined in another. It appears to me impoffible that fuch a maxim fhould have been fet up. I do not fee upon what ground it would have been neceffary to the decifion of thefe cafes, nor upon what ground it is poffible to declare, that a man must not be examined in what they call a judicial examination, because he has once before taken the freeholder's oath. I am inclined to believe, if they examine accurately those cafes, they will find that the objection was to the form of particular interrogatories, and not to be bottomed on that principle, that a man who has been examined once, can be examined no more. My Lords, this cafe comes before your Lordships under particular circumftances. A great many of fuch cafes were under the view of the Court of Seffion at the fame time. In fome of them, evidence was given; and they were argued in the Court of Seffion at large; but this was argued ore tenus, without evidence or facts ftated in writing. Without a diftinct view of the evidence that was given in the cafe, particularly where it is attended with fuch doubts and nicety as this, I should be extremely forry to be forced on into a decifion, where every article, and every circumftance of it, was not fo perfectly before the Court as it ought to be, in order to found the judgment which your Lordfhips ought to pronounce upon it. No cafe can come before this Houfe where the utmost anxiety fhould not be ufed to adhere clofely to the rules of law; and if there be a cafe diftinguishable from another in that particular, I should say 479 this is one, which, by the peculiar conftitution of the kingdom of Scotland, the Court below ought to judge of with the utmoft attention, as the right of a feat in Parliament may depend upon it, and upon account of the great and momentous concern which is involved in it. Therefore I will not propofe more to your Lordships, than to remit this back to the Court of Seffion, with a view they fhould proceed to the examination of all the points in it, that their decifion may be founded upon the evidence stated amply and decifively before them, and they fhould decide what steps ought to be taken in the matter. 6. At the annual meeting of the Royal College of Phyficians, for election of their office-bearers, the following Gentlemen were chofen into office for the enfuing year : Dr James Hay, Prefident. Sir Stewart Threipland, Vice- Prefident, Mr Robert Bofwell, writer to the fignet, Same day the Natural History Society elected the following gentlemen officers for the enfuing year: 10. Came on, before the High Court of Jufticiary at Edinburgh, the trial of Peter Wifhart, accufed of murdering his wife, by fetting fire to her 'cloathes on Sunday the 26th of Auguft laft. The evidence, being entirely circumftantial, was exceedingly intricate and myfterious. On the part of the prosecution, it was proved, that, on the night previous to her death, the deceased had expreffed the utmost terror at being left alone with her husband; that the feemed ftrongly impreffed with the idea, that fomething fatal would happen to her; that the begged one of the witnesses to procure two chairmen to fit up with her during the night; that about four o'clock in the morn morning fhe was heard crying, Murder, Murder, Guard, Guard. That he then left her house and ran to the guardhoufe, from which she was carried home by force by a party of the guard: That the defunct took hold of one of the foldiers by the coat, and afterwards took off his hat, infifting that he would ftay all night, for fhe was afraid, when he was gone, "that Peter would do with her as he pleased? That immediately before Wifhart and his wife were left alone, the pannel appeared much agitated; he had lighted a candle, altho' it was "good day light," and had put off his fhoes, which he threw with vio lence to the other fide of the room, and put on a pair of new shoes: that about half an hour after they were thus left, at the time when her death muft have happened, the neighbours, both below and above, diftinctly heard a noife, and the defunct calling out, “ Murder, Murder, Hell, Hell." Silence then prevailed; only fomething heavy was heard trailing along the floor. That upon one of the neighbours going in to the house, and inquiring what was become of Mrs Withart, her husband at first said, she had gone out; but afterwards, when the burnt body of the defunct was obferved lying on the floor, and covered with a blanket, he denied that it was the body of his wife: That, upon his then being asked, Poor man, what is the meaning of all this?" he anfwered, "I am a poor man, indeed." Upon this he left the houfe without any other perfon having feen him there; but at feven o'clock, he came up to a guard foldier at the head of the Old Affembly Clofe, and asked him if he had feen his wife, for that the had gone out of the house and was mad? He then disappeared, and in a few days was apprehended near Haddington. The evidence brought in exculpation, on the part of the prifoner, went to prove that his general character was that of an inoffenfive fimple man; that his behavis our as a husband was rather affectionate than otherwife; and that there was no quarrel, or caufe of quarrel between him and his wife, nor any circumftance in his previous conduct that gave the leaft indication of fo horrid a purpose as murder. That the woman was of a violent temper, and on that night was in the delirium of a fever That on the forenoon the had caufed a letter to be written to her fifter in Perth, begging The would immediately come over, as fhe thought herself in a dying way, and he was the properest person to take care of her. In this letter, the expreffed no apprehenfion with refpect to her husband, nor made any complaints against him. That the purpose for which she wanted the chairmen was, not to fit up with her, but to go meffages to a brewer and diftiller, to whom he owed money, and with whom, fhe faid, the wifhed to speak before her death: That both her words and actions, in the courfe of that evening, were wild and incoherent; that the cry of Murder, which was heard about two hours before her death, was occa fioned by one of the neighbours attemp ting to stop her in the paffage, or staircafe, when he was running to the guardhoufe. That the pannel had fat up with his wife on the Thursday and Friday nights, and been attentive in giving her medicines, water-gruel, &c.; that on the Saturday night he was afraid he would not be able to pay her fufficient attention, and therefore fent to Mrs Grant, one of her friends, begging that he would come and fit up with his wife all that night: That on Mrs W. calling for dofes of laudanum, or some other medicine, oftener than was prefcribed by the surgeon, the hufband, to deceive her, had given her fome of the medicine mixed with water; this fhe infifted was poifon, and then became averfe to take from him either medicine or water-gruel: that fometimes, in the courfe of the night, the kept a lighted candle within the bed: that at one time the prifoner, from fatigue and want of reft, had fallen afleep, and could not be awakened, but with the utmost difficulty; and, laftly, that at the very time the laft cry of Murder was heard, water was running plentifully down from the floor of Withart's houfe. The Jury returned a verdict, finding, by a very great plurality of voices, the libel Not proven. Whereupon the prifoner was affoilzied and difmilled from the bar. The following is the exquifite Song, writa ten by Mr Sheridan, introduced by Mr Bowden in the. Duenna. Mark'd you her eye of heavenly blue? MARRIAGES, BIRTHS, and DEATHS, from July to December 1787. MARRIAGES. March 27 Mr Wm. Fettes merchant in Edinburgh, to Mifs Maria M'Colme. June 26. at Leith, Ld. Ballenden, to Mrs Sarah Cuming, a widow lady, from Montego Bay, Jamaica. July 2. at Glafgow, Dr Cleghorn, to Mrs Johnfton. Aug. 8. at Edinburgh, Mr James Da vidfon writer to the fignet, to Mifs Bu. chanan, daughter of the late Neil Bucha nan, Esq; of Auchitoshan, 13. at Edinburgh, Mr Jofeph Norris, writer, to Mifs Catharine Campbell, youngest daughter of the late Dr Patrick Campbell, phyfician in Wigtoun. 12. at Peirceton, in Ayrshire, Robert Reid, Efq; of Adamton, to Mifs J. Campbell, daughter of the late James Campbell, Efq; of Trees-bank. 16. at London, Robert Trotter, of Bufh, Efq; to Mifs Anne Trotter, only daughter of John Trotter of Norton Efq; 18. at Orkney, James Blaw, Efq; to Mifs Trail, daughter of Patrick Trail, Efq; of Kirkwall. 20. at Dundee, David Lyon, Efq; of Jamaica, to Mifs Read, eldeft daughter of the late John Read, Efq; of Carney. 20. at Hamilton, Mr John Ronald, merchant in Glasgow, to Mrs Mary Tennant, relict of the late Rev. Mr John Ramfay, minifter in Hamilton. 26. at Aberdeen, Mr Charles Gordon, Advocate in Aberdeen, to Mifs Mary Harvey, daughter of the late Alexander Harvey, Efq; of the Island of Antigua. 27. at Glasgow, Mr James Lockhart, merchant, to Mifs Margaret Armstrong, daughter of the late Mr William Armftrong of Carn. Sept. 6. at Delvin, in Perthshire, Alexander Muir Mackenzie, Efq; to Mifs Murray, daughter of the late Sir Robert Murray of Hillhead, Bt. 8. at Edinburgh, Major Dickfon, of the Hon. Eaft India Company's fervice, to Mifs Lindefay, daughter of Henry Lindefay, Efq; 11. at Dundee, Capt. Wedderburn APPENDIX to VOL, VI. of Pearfic, to Mifs Anne Read, daughter of the late John Read, Efq; of Cairny. 17. at Glafgow. Mr John Anderfon of Kingsfield, to Mifs Mary Wilfon. 18. at Bogfide, near Irvine, Thomas Gillies, Efq; in the fervice of the East India Company, to Mifs Jane Crookfhanks of that place. 20. at Ednam-house, in Kelfo, Wil liam Dickfon, Efq; of Sydenham, a Cap tain of the royal navy, to Miss Charteris, grand-niece of the late James Dickson, Efq; of Ednam. 24. at Springkell, Michael StewartNicolfon, Efq; of Carnock, to Mifs Ka tharine Maxwell, youngest daughter of Sir William Maxwell of Springkell, Bt. 24. at Kilfyth, the Rev. Mr James Robertfon, minifter of Gargunnock, to Mifs Anne Walker. 24. Mr Andrew Euing merchant in Glasgow, to Mifs Sufannah Morrison, daughter of Mr Alexander Morrison mer chant in Greenock. 24. at Edinburgh, John Reeve, Efq; Lieutenant in the late 82d regiment, to Mrs Charlotte Felicity Conner, widow of Hew Spreul Crawford of Cowdenhill, Efq; Oct. 3. at Aberdeen, the Rev. Mr Gilbert Gerard, minister of the English church in Amfterdam, to Mifs Helen Duncan, daughter of John Duncan, Esq; late Provost of Aberdeen. 8. at the manfe of Cardross, Thomas Babbington, Efq; of Ruthly Temple, Leicestershire, to Mifs Jean Macauly, daughter of the Rev. Mr John Macauly. 9. Mr Alex, Allan merchant in E dinburgh, to Mifs Anne Losh of Carlisle. 12. William Miller of Craigentinny, Efq; to Mifs Rawfon, daughter of Hens ry Rawson of Newark on Trent. 15. Mr Archibald, Robertfon, merchant in Greenock, to Mifs Jenny Moody, daughter of Mr Hugh Moody, mercht. 16. at Edinburgh, John Mackenzie, Efq; younger of Applecrofs, to Mifs Jean Elphinfton, daughter of Alexander Elphinston, Efq; Advocate. 16. at Rennyhill, Mr Neil Macvicar, merchant in Edinburgh, to Mifs Ann Jean Johnftone, daughter of Andrew Johnftone, Efq; of Rennyhill. 18. at Edinburgh, James Drummond of Strageath, Efq; Advocate, to Miss B. 30 Drummond, Drummond, only daughter of the late Patrick Drummond of Comrie, Efq; 08.29. at Lochcarron, Mr Ken. Mackenzie jun. writer to the fignet, to Mifs Anne Mackenzie, daughter of Thomas Mackenzie, Efq; of Applecrofs. Nov. 13. at Pearfie, D. Anderson, Efq; late of India, to Mifs Elifabeth Read, daughter of the late John Read, Efq; of Cairney. 19. at St Margaret's Hill, Ayrshire, Mr Alexander Wilfon, bookfeller and ftationer in Glasgow, to Mifs Chriftina Lawrie, daughter of the Rev. Mr George Lawrie, minifter of Loudon. 23. at Hole, Mr Thomas M'Ilwham, mercht. in Glasgow,to,Mifs Betty Stewart, daughter of Mr James Stewart of Hole. 23. Mr Charles Bell, wine merchant in Leith, to Mifs E. Robertfon, daughter of Mr C. Robertfon, painter in Edin. 28. at Methel in Fife, John Craig, Efq; Architect from Glafgow, to Mifs Sarah Stark, daughter of MrMark Stark, at Methel. 29. at Barbeth, William Forbes of Callander, Efq; to Mifs Margaret M'Adam, eldeft daughter of John M'Adam of Craigengellan, Efq; Dec. 9. at Fettereffoe, James Abercrombie of Bellfield, Efq; to Mifs Ifabella Morifon, daughter of the deceased James Morifon of Elfick, Efq; 10. at Dunkeld, Alexander Stewart, Efq; of Bonfkied, to Mifs Jean Biffett, only daughter of Commiffioner Biffett of that place. 11. at Glasgow, Donald Maclean of Kingerloch, Efq; to Mifs Ann Maclean, daughter of the deceased Hugh Maclean of Ardgour, Efq; 16. at Leith, the Rev. Mr William Bennet of Duddingfton, to Mifs Archbald, daughter of Mr John Archbald, wine-merchant. 21. Mr John Gray, writer in Edinburgh, to Mifs Fyfe, daughter of Mr Barclay Fyfe, merchant in Leith. 22. Sam. Long, Efq; of Bloomsbury, to the R. H. Lady Jane Maitland, daughter of the Earl of Lauderdale. 27. John Hunter, Efq; his Majefty's Conful for Seville and St Lucar, to Mifs Margaret Congalton, eldest daughter of Dr Charles Congalton, phyfician in Edinburgh. BIRTH S. July 3. Lady Haddo, of a fon. 12. at Purves Hall, Lady Purves, of a daughter. 20. Mrs Cumming of Altyre, of a son. fon. Sept. 2. At Leith-hall, Mrs Leith of Leith-hall, of a daughter. 5. at Dryden, Mrs Lockhart of Lee, of a fon. 11. at Queensferry, Mrs Crawford, wife of David Crawford, Efq; of Carronbank, of a fon. 14. at Clifton-hall, Mrs Helen Gibfon-Wright, heiress of Clifton-hall and Kerfie, fpoufé to Alexander Charles Maitland, Efq; of a fon and heir. 14. Mrs Ferguffon of Pitcullo, of a daughter. 16. Lady Helen Hall, lady of Sir James Hall of Dunglas, Bt. of a fon. 08. 10. at Darn Hall, Lady Elibank, of a fon. 12. at Edinburgh, Lady Hunter-Blair of Dunfkey, of a daughter. 20. at Binns House, Lady Dalzell, of a daughter. 21. at Caftle Grant, Lady Grant of Grant, of a son. Nov. 1. at Haymount, Mrs Hay of Mountblairy, of a daughter. 5. at Caftlehill, Lady Janet Traill, of a daughter. 20. at Edinburgh, Mrs Swinton of Kimmergham, of a daughter. 25. The lady of Archbald Douglas of Adderfton, Efq; of a daughter, at his feat at Mitchells, Roxburghfhire. 30. Mrs Leflie of Bulquhaia of a fon at the house of Fetterneer. Deca |