IT is manifest by what is Represented by the Collonel, that the saids Captains have no ground to crave any Money (under the cover of being the Remains of the Re­tention) either from the Lieutenant-Collonel or Agent, and that both of them ought to be Assoilȝied from the Complaint by all the Rules that can be called Law or right Reason.

The Collonel as such has Right to the Superplus of the Retention, for defraying the con­tingencies of his Regiment: Especially being in Garison at a Post where he was in some manner both a Civil and Military Governour, and sustained the Charge of both with very no­tour prudence and Loyalty.

The Collonel Exercised his Right by Ordering this Money to be payed without any o­ther Rule or Restraint than his own Discretion. But his Generosity and Indulgence in giving a part of it at such Occasions as he thought fit to his Officers, would now be distorted by the Complainers; So as to Retaliat his Goodness with his Loss, and the Damnage of the Lieutenant-Collonel, whose faithful Services and Expenses for the common Interest, the Collonel did fairly Re-pay or Advance.

Such a Precedent would reach Numbers of other Persons under pretence that they had got Shares of the Retention: By which their would be a Foundation laid for the Captains and their Successors against als many Receivers, and their Representatives, as would make up a new Regiment.

But as the Collonel had not only the Sole Right, but likewise the Sole Administration of the Retention Money, as appears by his being the only Person who drew Orders on, and gave Discharges to the Agent thereanent, (the Captains even when they got benevo­lences never having given one single Receipt) so the said Collonel Imployed the Lieute­nent Collonel on the publick Business, gave him his Instructions, Examined his reports and Expenses, approved his management, allowed his Bills, ordered his re-imbursement, and final­ly gave Discharges to the Agent thereupon. Whence it is not possible even in Imaginati­on to make such a view of the matter as either the Lieutenant-Collonel or Agent can be reah­ed.

Yet the Complainers have been pleased to give in a special Claim to the Right Honourable The Committie of Council, (to whom the Affair was remitted) alledging that the Ex­crescence [Page 2]of the Retention Money was not Divided as it ought, and was in use to be done there being a great part thereof given to Lieutenant-Collonel Forbes, whereof these ar [...] the Particulars, viz.

• 1, In the account of Retention from April 1694, to April 1695 (recovered from the Agent) there is stated per Bills advanced to the Lieutenant Collo­nel 410 lib. 13. ss. 3. d. Sterling.
• 2. From April 1695, to April 1696, 227. lib. 10. ss. 5. ds. Sterling: After which the Words as per Receipt are presently razed.
• 3. From April 1696, to April 1697, 115. lib. Sterling given to him.
• 4. From April 1697, to April 1698, by Bills to London 720. lib. Sterling.
• 5. By two of the Books produced, the Agent Charges himself with the Lieutenant Collonels monthly Pay. And then says, Item, 30. libs to, &c.

Which argues a fraudulent concealment, from whence they intend to conclude that the Lieutenant Collonel ought to be Decerned to repeat, or the Agent to make over again a second Payment: But at the same time these Gentlemen for­get the Lieutenant Collonels riding Post Four Thousand Miles in the Regiments service and advantages to the value of more as Five Thousand Pounds sterling obtained to the Regiment by his Means! Howevere.

It is Answered, that the Lieutenant Collonel, and Agent ought to be Assoil­ȝied by all the Land marks of Law and Form, which our Predecessors have set for ensure­ing the Safety of the Leidges. In so far as

1. All that can possibly be Claimed by the Captains, is comprehended either under their ordinary Pay, or their pretence to a Share in the Retention.

Their pay is fully Discharged both by themselves and the Collonel: And the Collon­el has ever since the first Establishment Solly by himself given ample Discharges of the Reten­tion to the Agent: Which proceeded upon allowance of the Articles Debursed to the Lieutenant Collonel, and consequently includes likeways a Discharge to the Lieutenant Collonel, besides his separat Instructions which he has thereof.

These Discharges are a Brasen Wall against which all Attacks are vain, and are an Her­cules Pillar beyond which none can go, till the Lords of Session do Reduce them. For by our Law a valid Writ, not labouring of an Intrinsical nullity must still while it stands take its effect, (especially when there is no Ryot or Breach of the Peace can be pretend­ed anent it) ay and while it be anulled by their Lordships, before whom Dyets not be­ing perremptor, His Majesties Subjects will get time and means of Probation for Defence and Support of their Rights.

It is not doubted, but if the Complainers had Informed their Lawyers of the Tenor of these Discharges, whereby the Affair resolves purely into the Discharging of privat civil Rights, they would never have presumed to divert the Lords of His Majesties most Ho­nourable privy Council, from the greater and publick matters of the Nation, either with Complaint or Compt and Reckoning. For however Officers in time of War, or while they stand undisbanded, may have extraordinary Remeids that they may not be drawn away from their Posts; yet these Gentlemen having returned to their privat Stations, there is no Law for exempting them from Common Rules; especially considering what they might have known the Councils mind by their Lordships not allowing the Addresses on the like accompt of the then Lord Lindsay, and Collonel Buchans Officers to be so much as in the least insisted upon.

2. Suppose (which is a great postulatins) that the Collonels Right to grant these Discharges were now to be canvassed: His Right to the Remains of the Retention at the least after the Incidents of the Regiment are Discharged, is fully Established by the nature of the thing, by His Majesties Decisions, by the Councils Authority, by the Common usage and custom not only here but every where else; and finally by the inextricable absur­dities that would follow in a contrary event. Neither are their any Specialities that can distinguish the present case.

The other Officers received all the Pay appointed to them by the Establishment through the hands of the Collonel, who drew Orders and Precepts for the same on the Agent: So that whatsoever is not expresly appointed to the Captains by the Establishment, (as the Retention is not) Remains with the Collonel, and he may retain it, and they have no Title to seek it.

The Common usage, even in this same Regiment, that all Orders for the Agents pay­ing of Money are given by the Collonel, that Accompts are made to him, that Discharges are taken from him; That the Captains Discharges even of their ordinary Pay are pre­sented to him qua instructions: And that the Captains do not so much as grant either Dis­charge or Receipt for Retention; yea, the Gratuities they got of it were payed in Cash with­out Receipt: Lastly, that the Collonel Dispensed the Remains of Retention, without any Barr to his Inclinations, as to time, manner, or Persons: are more than sufficient Eviden­ces [Page 3]that what ever he bestowed of the said Money after the Services of the Regiment, was [...]t of pure Benevolence.

If it were otherways, Collonels and those of the Leidges who deal with them would of [...]ll men be the most Miserable. For presently Captains and their Heirs would not only [...]peat the whole Retentions any time within 40. years from the Collonels and their Poste­ [...]ty: But likewise, any Conjunct or confident Person that got Money from them upon Pre­ [...]epts on their Agents must lay down, unless they have keeped the Instructions of the onerous [...]ause for what they Received.

Sir John Hills Captains themselves have ipso facto acknowledged, and Homologate his [...]y accepting unequal Shares from him, and by granting Bonds, which a Man would ne­ [...]er do for his own: as appears by the Instances set down in the Condescendance of instru­ [...]tions subjoyned to the Collonels Petition: As it is certain that while the Regiment stood, [...]he Complainers never dreamed of Challenging their want of former years Shares, which is a [...]st Defence against them when [...]it is Disbanded.

Without further reasoning on this Matter, it is known to the Lords of His Majesties [...]ost Honourable privy Council, how His Sacred Majestie has always thus Determined, and [...]ow their Lordships did Reject the Petitions of the then Lord Lindsay, and Buchans Offi­cers before-mentioned.

But the Complainers knowing that they want things must invent Names and call their Case a speciality. Yet it is most certain that no Vail can cover it from Justice.

It is indeed pretended, that tho in the common case the Collonel may have the Retenti­on, yet their honest Collonel has abandoned his Right by his use and Custom of Commu­nicating with them, which is Instructed scripto by two several Writs, viz. One in 1694, whereby he says in regard my Officers have been at great Expenses in Recruits af­ter so many Draughts, and other considerable Charges in this Dear and unwholesom place you are hereby Ordered, ( viz. the Agent) to pay our the Sum of 1400 lib. sterling which is in your Hands of Retention, according to an Agreement made concer­ning the same, (At which time two of these Gentlemen were not Captains, and had they been, it is presumable, their Proportions of the said Dividend had been but small con­sidering the onerous Cause of the said Gratuity, and the Complainers their deserts, which are enumerat in Collonel Hills Letters, to my Lord High Chancellor, and my Lord Teviot, but both good Nature, and Manners makes the Lieutenant-Collonel forbear Particulars.) And Which Order of Agreement, Major Forbes will give you &c. and on the Back thereof Major Forbes says, you are to pay the within written Sum, 200 lib. to the Collonel, 100 lib. to each Captain, except Stuart and Hunter, whose Shares are to be burdened with 20 libs. to Caplain Cathcart, and 20 libs. to Richardson, &c. The other in 1695, says I desire you to allow Lieutenant Collonel Hamiltoun, 50 lib. sterling over and above the 100 lib. allowed to him at the last Division of the 1400 lib. sterling a­mong the Officers. &c.

But before making particular Answers, the Complainers would be pleased to mind, that the Collonel in the first part of the foresaid order 1694, says, That complaints were made to him, how several persons who had no right to draw upon, or meddle with the Retention Money, do draw upon that Fond upon which he was censured as guilty of ne­glect in that which was peculiar to his post: therefore he requires the Agent that he an­swer no Bills, Orders, or make payments of Money upon that Fond, but such as come to you from my self under my own hand: with this assurance, that no other Bills or payments should be allowed in Accompt. After which follows the precise words above set down anent the 1400 lib.

Hence it is Answered.

1. That the alledgance is not instructed, but further, the quite contrary is plainly pro­ven. For the Collonel vouches his Right, and that non without his special order shall draw on, or get any Money out of the Retention. They accept of this Paper with this quality, and can never approbat and reprobate the same Write. It bears that even the 1400 lib. was distribute upon a specifick Accompt, viz. Their Expences about that time in Recruits, The Precept 1695, in favours of Hamilton, calls what he got an allowance: and the divi­sion of the 1400 lib. likewise an allowance to the Officers; Which plainly implyes that it was only a temporary and precarius grant, quoad these particular Sums: especially considering that it adds this shall be your warrand, without further receipt.

2. It is a method of arguing that is indeed new (which is the only speciality in the case) [Page 4]he that deals a part of his excresent rents in almes must give the whole: And a weekly [...] day must be continued for ever: A given Horse (against the old Scots Proverb) must [...] looked in the teeth. Gratifications which were always esteemed to be strictly interpr [...] must henceforth be Stretched beyond the subject gifted, yea beyond all bounds. Lib [...] ­lity must be frighted, by making it of all that a man hath, if he let out any indication [...] his generous mind. There must be no moresuch a thing as the Lawyers call res merae faculi [...] but all now must run to nece [...]sity and bonds: 3. These papers do sufficiently Interpret th [...] selves without any such comments as destroyes the Text. For the agreement mentioned the order 1694. is called an order of agreement, and expresly referred to be told by M [...] Forbes, and Major Forbes on the back of the same Write tells and signs as is above rep [...] ­sented,

There is another piece of new Logick introduced by the Complainers, viz. The Ag [...] accompt of the Retention 1693, is docketed thus, ‘'I Captain James Stuart being orde [...] by the Collonel to revise the above-written Discharge, do certifie that I have examined Accompt and credentials, &c. As also the Collonel in a docket of the Accompt from 1 [...] to 1698, says the above written Accompt being viewed by my Officers, and perused me are found to be just and are allowed by me. Ergo the Retention money belongs to [...] Officers,’

It is Answered, the consequence is denyed. And otherwise a compter might put up Money in his Pocket, because he is imployed by the master of the Money to revise the compt. In a word the Collonel is a good man, a lover not only of a correspondence twixt Friends, but likewise of his own ease: and therefore it is no marvel, that he took Officers assistance in that, as well as his other undoubtedly peculiar business. But it's a [...] monstration, that these very things do prove the right to have been owned in the Coll [...] in so far as,

• 1. The Officers had orders from him, and he that does by another doe [...] himself.
• 2. The Write bears that they only viewed, but he alone allowed.

3. Suppose (which is still more and more) that the Discharges were to be assaulted, the Collonels right not found to be good: yet neither Lieutenant Colllonel nor Agent be lyable, because quoad the Agent he has made bona fide payment by his Constituents o [...] and as to the Lieutenant Collonel suum recepit, he has got but what was due to him by constituent, viz. The Collonel, and he neither did nor was obliged to enquire, out what part of his Debitors Estate (whither his own pay or other effects) this Cash did proc [...]

For clearing whereof, it may be considered, that the common interest of mankind [...] made this a principal in all Nations, mobilia non habent sequelam. fluxile Moveables, ( [...] especially Money) passes without any burden of the last Possessor, his personal oblidgments, commerce necessary betwixt man and man requires, that there be not Flood-gates ope [...] to Pleys for repetition of Money pretended to be wrongfully disposed. This Money [...] not stamped with the word (Retention) upon it, and whatever way the Collonel and ge [...]t might have cleared among themselves, in placing Debursments to one Accompt, rath than another: yet the Lieutenant Collonel is no ways concerned out of what Fond his Ex­pences were furnished, and it had been Impertinence in him to have asked the Collonel [...] Question.

As this principal is founded in nature and necessity, so the other that qui suum recipit is [...] obliged to refound, Is no less plain in Law: as has been lately cleared by the Lords of S [...] on in a famous Decision, upon a remit of Parliament, betwixt Hope of Kerss and Mu [...] of Spot. But so it is that the Lieutenant Collonel was imployed by the Collonel, and [...] proven of him by repeated approbations under his hand herewith produced, which cli [...] him in all the undertakings which he went about with so much fatigue, and even superp [...] Expences out of his own Pocket for the publick good: and consequently he who set [...] on work was bound to pay his Wages, and such an honest master did never fail to [...] them.

Its no ways to the purpose, that the Lieutenant Collonel might have done some of [...] own business in the intervals, but always without prejudice of theirs. For no Sense or Rea­son can improbat any such industery for a mans self, when no other is indamaged by it: a [...] his imployer and Collonel has been so far from thinking otherwise, that he has fully app [...] ­ven the Lieutenant Collonels faithful discharging of his Trust.

4. As to the particular condescendence, the Lieutenant Collonel and Agent are no wa [...] concerned to make any Answer thereto; because they most humbly conceive that th [...] three separat grounds before represented, are more than sufficient to exoner them without entring to detail.

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