E. contra, December 201 1733.

It would appear that the relations between the earl and the town were not always of an amicable nature, as shewn by a Process bearing the above title—the subjects of litigation being the jurisdiction of the earl over Kirkintilloch, and whether or not the burgh was thirled to the mill of Duntiblae. As the names and residences of the witnesses are interesting, and the evidence is curious, as revealing circumstances of the past, we give extracts—the document being much too long to be quoted in full.

The Earl’s Witnesses.

James M'Nair, late bailie in Kirkintulloch, aged 84, depones: That for forty years and upwards, the bailies of the Burgh of Kirkintulloch, have been in use to attend and answer the Earl of Wigton's three head courts at Cumbernauld each year, of the four years he was bailie; and that at the deponent’s going to the said courts, his neighbour bailie went always along with the deponent to the said bead courts. He knew the Earl of Wigton by his bailies, abstract from the two present bailies of the burgh, has always been in use to hold courts at Kirkintulloch, at which the bailies of the said burgh were present; but that my lord’s bailie did sit as sole judge, and that the earl’s bailie was in use to hear complaints made by the bailies, burgesses and other inhabitants of Kirkintulloch, and to determine in them : Depones, that in all matters criminal, the bailies of the burgh did not meddle with the criminals, especially in blood wit, but referred to the Earl of Wigton's bailie for the time, to be judged and punished by him : Depones, he has seen the bailies of Kirkintulloch and several other burgesses attend and wait upon the Earl of Wigton’s bailie at riding the fairs of Kirkintulloch and Cumbernauld: Depones, he knew the Earl of Wigton’s bailie to have been in use to give regulations, with consent of the two bailies of the burgh, anent their streets mending and repairing, and their markets and customs; and that he knew the earl’s bailie and officer fine and punish the committers of crimes within the said burgh in the terms of the penal laws : Depones, that he knew the said earl’s bailie turn out David Findlay of Bogside, then present bailie of the burgh, for some misdemeanour or other then alledg’d against him, and was never afterwards repon’d.

James Currie, clerk in Cumbernauld, aged 64, depones: That he knew the two bailies of Kirkintulloch from year to year since Candle* mas 1680, been in use to attend and answer the Earl of Wigton's three head courts in the year, holden at Cumbernauld, and that he knew the earl’s bailie fine the said bailies for their said abscence, to which he was clerk : Depones, he knew the said Earl of Wigton’s bailie to have been in use to hold courts at Kirkintulloch, and that the bailies, burgesses, and inhabitants of the said burgh, were in use to answer at these courts, sometimes as pursuers, and sometimes as defenders, as occasion offered: Depones, that when any of the inhabitants of Kirkintulloch were guilty of blooding others by tuilzieing or the like, the deponent has heard the said bailies declare they had nothing to do with it, but say, ** Let the Earl of Wigton and his bailie do therewith as they please ” : Depones, that he has seen and been present when the earl’s bailie was riding fairs at Kirkintulloch, Cumbernauld, and Denny. Since the same was favoured with a fair, the said bailies and burgesses attend and wait upon the said earl his bailie, and that the deponent, at riding of the said several fairs as clerk to his lordship’s bailie, did call over a list of the names of the said bailies and burgesses of Kirkintulloch, and such of them as were absent were fined by the said earl’s bailie: Depones, that he knew the Earl of Wigton’s bailie make acts and statutes of courts, for preserving the sclate-roofs, doors and windows of the kirk of Kirkintulloch, churchyard, and dykes, and stones therein. As also for markets and customs, weights and measures, to all which the deponent was clerk, and got the same signed by the earl’s bailie, and further, that the said earl’s bailie has been in use to keep courts at Kirkintulloch, and fine and poind such of the inhabitants as were guilty of fishing, fowling, hunting, raising muirburn in forbidden times, and for transgressing other public acts: Depones, he knew the foresaid earl’s bailie to have been in constant use to appoint, admit, and receive birlaymen, for keeping good neighbourhood, and for preserving policy in and about the said town of Kirkintulloch ; That he knew that Bailie Finlay was turned out of his office by the Earl of Wigton’s bailie, and never after reponed, but knows of no other except Bailie Dollar’s case, and remembers the earl’s bailie in the year 1684 did take from the bailies of the burgh the keys of the tolbooth, which the earl’s bailie keept till application and treaty was made for its redelivery ; That of late years he knew the said earl’s bailie turn out Robert Dollar from being bailie of the said burgh, and declare him incapable, by a sentence signed by the said earl’s bailie, and wrote by the said deponent as clerk.

Thomas Baird, baron officer in the Lenzies, aged 57, depones: That he has seen the earl’s bailies keep courts in Kirkintulloch upon such as disturbed the peace of the said town, and fined them for their delinquencies. He has seen the earl’s bailies keep courts at Cumbernauld upon the penal statutes against the easter barony of Lenzie, and sic-like at Kirkintulloch, against such of the inhabitants thereof as were guilty of the said penal laws, and that he has known the earl's bailies appoint birlaymen for keeping good neighbourhood and preserving policy in Kirkintulloch ; that the earl’s bailie did turn out Bailie Finlay 'for some alledged transgression, and that he saw the said Bailie Finlay confined prisoner at Cumbernauld for some days for said alledged crime.

Thomas Duncan, portioner of Kirkintulloch, aged 59, depones : That he knew the Earl of Wigton’s bailies keep courts at Duntiblae mill against delinquents for abstracted multures, both against the bailies and inhabitants and burgesses of Kirkintulloch, as well as others as were within the sucken of the said mill, and that for abstractions. But knows not, whither the said inhabitants and burgesses were conveened before the said courts for abstraction of corns, or other grains that grew in the town or burrowlands of Kirkintulloch, commonly called the muirmaillings or burrowlands; or whether they grew in the mains lands: Depones, that he knew the two bailies of Kirkintulloch, with ten inhabitants of the said town, attend and wait upon the earl’s bailies at the riding of fairs at Kirkintulloch and Cumbernauld, of which ten the said bailies were two, and warned the other eight to wait upon them, by their officer, and all which eight were either burgesses or stallingers of Kirkintulloch. That the bailies of the said burgh always named the visitor of the meal-market, and were the only judges thereof. That some of the inhabitants were ordered by authority of the said earl’s bailie to take down some parts of the houses built by them upon the High Street, in so far as it encroached upon the street, as the birlaymen reported to the bailie that they were further out than their neighbourhood, but only as to one particular instance of one of the town called Patrick Burnside, who had so done.

The Town of Kirkintulloch’s Proof.

James Mure, portioner, of Kirkintulloch, depones: That within these thirty years he has known the bailies of Kirkintulloch determine in causes of blood and battery several times, also in matters of controversy about marches between heritor and heritor, and neighbour and neighbour, also in civil matters : Depones further, that he knew that the magistrates had about thirty years ago a visitor upon the mealmarket, the Earl of Wigton placed one in that office, after which both officiated until the parties thought proper to refer the controversy to two lawyers, who gave it for the town, since which time the town’s visitor has continued in the office, the earl’s visitor being laid aside, and since that time the magistrates have been judges of the mealmarket. That he knew one instance of the magistrates' determination in blood-wits against one William Lindsay an inhabitant of said town, and the deponent when he was a magistrate of the said town determined in a blood-wit.

Hugh Wilson% late bailie of Kirkintulloch, aged 60, deponed : That he has been bailie sundry times in twenty-four years, that while he was magistrate he has several times decided in the matters of blood-wit; that at two of these trials James Curry, then clerk of the town was clerk of the process, and that in one of these last trials the other bailie of the town, John Boog sat and determined with him, and the other by himself. That the magistrates have been in use to appoint and choose birlaymen for regulating the marches within the town, and for preserving the policy thereof, that the magistrates ordered their officer to intimate and make publication to the inhabitants prohibiting them from all irregularities and immoralities. Depones, that the town of Kirkintulloch have a part of the church thereof allotted to them, conform to their valuation, and that the magistrates divide and subdivide the same amongst the inhabitants; and that they are in use to name a visitor for their mealmarket.

Robert Dollar, feuar, and late bailie of Kirkintulloch, aged 69, deponed : That while he was a magistrate of the town which was about thirty-six years, and in that office he, the deponent judged in complaints about marches in the town, and any debates with meal-men, and also determined in civil matters between stranger and burgess. That the deponent has judged in blood-wits, but not often, and that he has also judged and punished thieves, and also in batteries.

David Findlay, elder of Bogside, portioner, and late bailie of Kirkintulloch, aged 70, depones: That he has known the magistrates of Kirkintulloch to be judges in any causes came before them, not only in civil causes for debts, but also for riots, blood-wits, and breach of peace, and not only the inhabitants amongst themselves, but also betwixt the inhabitants and strangers, and this he has known to have been the practice for forty years without interruption. And depones that the earl’s bailie did also judge in any cases where there was a complaint made to him, and saw no interfering betwixt the town’s bailie and the earl’s bailie, by reason whoever gave the first citation, and so prevented the other, was habit and repute to be the proper judge. And the earl’s bailie did hold his courts in any place he thought fit, and sometimes in the Tolbooth, but seldom, but the town’s bailies for the most part judged in the Tolbooth.

The Earl’s Proof anent the Multure and Thirlage.

Tames APNair, aged 84, depones: That the town of Kirkintulloch was, and is always repute a part of the Barony of Wester-lenzie, and the mill of Duntiblae to be the mill of the said barony. The lands pertaining to the inhabitants of Kirkintulloch about the town are and were always, habit and repute a part of the thirle and sucken of the mill of Duntiblae. That he has heard, that the miller of Duntiblae mill follow the inhabitants of Kirkintulloch to the Loch mill and receive his multure there for their said malt. That be judges the multure paid to the miller of Duntiblae mill for each boll of malt, one lippy, or one-fourth part of a peck of multure for each boll.

James Curry, clerk in Cumbernauld, aged 46, depones: That the five pound land of Banheath, said to belong to Sir James Hamilton, is holden and repute to be within the Barony of Easter and Wester-lenzies, and locally within the parish of Wester-lenzie, in which five pound land there is a mill for grinding victual called Wood-mill. But the said mill of Wood-mill was never held or repute to be the mill of the Barony of Wester-lenzie. Depones, that the lands pertaining to the inhabitants of Kirkintulloch about that town, or burrow acres, as they are called, were always habit and repute a part of the thirle and sucken of the mill of Duntiblae. The haill inhabitants of the said town have been in use to bring their malt, and grindable corns of whatever kind, whether growing upon their own lands or mported into the barony, to the said mill of Duntiblae, and did pay in town-multure to the miller for working and grinding thereof. Depones, he knew when any of the inhabitants of Kirkintulloch did abstract their malt and corns, and carry the same to other mills, or sell it out of the barony, the miller always pursued such persons before the Earl of Wigton’s bailie at Kirkintulloch, and other places of the barony, and decerned them for such abstractions, conform to several processes intended thereanent, to which the deponent was clerk.

Robert Fleming, indweller in Kirkintulloch, aged 66, depones: That the multure used to be paid to the miller of Duntiblae and servants for working and grinding each boll, to be one lippie or fourth part of a peck, mill measure; and as to the oats, depones that the eighteenth part of any quantity of shealing pays of multure to the said miller the said eighteenth part; and that each boll of bear grinded at said mill, pays of multure half a peck: and that each boll of pease pays of multure one fourth part of a peck. And being interrogate by the town of Kirkintulloch’s doers some questions proposed by them, depones—That he himself was pursued by the said miller for abstracted multures for corns that grew upon the mains lands and was obliged to pay the multures of the same.

Andrew Small, in Gartclash, aged 60, depones: That the town 01 Kirkintulloch is ofttimes called to be in the Wester-Lenzie; and that the Mill of Duntiblae is commonly called my lord's mill in the Wester-Lenzie. Depones, that he being in possession of one horse-gang of land in Gartclash, belonging to the town, and within the bounds thereof, the deponent always believes the said lands of Gartclash were a part of the thirle and sucken of the mill of Duntiblae; and that the deponent being in possession of the said lands for three and thirty years, did the whole said space bring his haill grindable victual to Duntiblae Mill, to be grinded thereat.

Malcolm Fleming,, in Gartclash, aged 76, depones: That the inhabitants of Kirkintulloch were in use to come to the miller of Duntiblae with their grindable victual, and it was commonly reported that they were a part of the thirle and sucken of the said mill.

Thomas Duncan, portioner, of Kirkintulloch, aged 59, depones : . . . . That the multure in use to be paid to the miller of Duntiblae for working and grinding each boll of malt, was one fourth part of a peck, mill measure, and for every boll of corn that grows upon the Burrow rood and Muirlands pay for multure the eighteenth part, and each boll of corn that grows upon the Mains lands the seventeenth part for multure, and the like quantity of multure for each boll of bear.

John Douglas, in Brokentower in the parish of ... aged 55, depones: That it is thirty-six years since the deponent was a servant at the mill of Duntiblae, and served for five years, and uplifted the multure, and the multure of the Burrow-acres and Muirland was the eighteenth peck, and the Mains the seventeenth peck, which Mains belongs to the earl. And depones: That over and above the said multure they paid to the miller for services, a fourth part of meal for the boll of sheeting, in name of bannock.

William Fleming, weaver in Duntiblae, aged 50, depones : That he knows the inhabitants of Kirkintulloch pay of multure for the Burrow-roods and Muirlands, the eighteenth peck of the sheeling, and the possessors of the Mains the seventeenth peck of sheeling, and that all of them pay one fourth part of a peck of meal for each boll of sheeling, as the bannock to the miller and servants, and that all of them pay one fourth part of a peck of malt, for the multure of each boll; and that those without the barony, who come to grind malt, and carry it again out of the sucken, pay the same quantity.