Bannatyne Club > Criminal trials in Scotland, from A.D. M.CCCC.LXXXVIII to A.D. M.DC.XXIV, embracing the entire reigns of James IV. and V., Mary Queen of Scots and James VI > Volume 3

44&9JAC. VI. CRIMINAL TRIALS. 133
— It is auruerit, tliat this Act of Parliament lies tane effect aganis Thomas Ken-
nydie of Drummorchie.
It is allegeit, that the afTumption of the firft pairt of the Dittay, aggreis iiocht
(with the) woirdis of the Act of Parliament, in thir woirdis, ' vnder power, trull,
credeit, and allureance ;' becaus the Laird of Auchindrane had na power over
the Tutour of Caffilis : And as to the woird of ' affiu'ance,' it is repoirtit in the
Summondis, that the feid was taikin awaj% and thairfoir, na alTiireance. — To the
quhilk it was anfuerit, be the Aduocat, that the allegeances aucht to he Repellit,
in relpect of the Dittay. For, it is fufficientlie knawin, that foure perfones may
half ' power' over ane ; and the pannell, haifing gevin aduerteifment and direc-
*ioun to fax to flay the Tutour, thair was mair nor fufficient power ; And as to
the reft of the allegeance, ' credeit, truft, and alTurance,' the Dittay ftandis rele-
vant, feing thair was na feid Handing, and thairfoir, beliovet to be llane under
truft.
It is allegit, that the Dittay can nocht be relevant, vnles the faniyn beir that
the pannell was actiiall committer of the cryme ; becaus the Act of Parliament
beiris, quhair the fact is committit and done be ane man, haifing power and au-
thoritie of the perlbne flane ; bot fa it is, that the pannell was nocht prefent at
the committing of the fact ; and fa the perlbne llane was nocht vnder his power.
— It is anftierit, that the Dittay ftandis relevant, in refpect that the Pannell was
au-t and pairt of the fact ; and thairfoir the allegeauce aucht to be repellit, in
refpect of the Dittay.
The Justice ffindis the Dittay relevant, and Ordanis the famyn to be put to
the knawledge of ane AfTyfe, except the pannell fay forder.
It is forder allegeit, that the naikit aflertioun of power, authoritie, and alTu-
rance, except the pannell had bene prelent at the committing of the fact, is nocht
relevant. Item, thair can na proces be led vpoue this Dittay, feing the famyn
is foundit vpoun ane writ quhilk is nocht producet. Anfueris, aucht to be re-
pellit, in refpect of the Dittay. — It is allegit, that the Dittay is nocht relevant to
infer Treafoun, becaus it is never fubfumeit in the Dittay, that the Laird of
CuUane was vnder the power of Auchindrane. Anfueris, vfjttpra, that the famyn
aucht to be repellit, in refpect of the Dittay. — It is allegit, that the wryting of
ane Letter be Auchindrane to Thomas Kennydie is nocht relevant to infer, that
the pannell was airt and pairt of Cullanes llauchter. Anfueris, aucht to be re-
pellit, in refpect of the Dittay. — It is allegeit, that thair is na thing qualifeit in
the Dittay, that the cryme was committit be the pannellis caufing, counfall, or
command ; becaus counl'ell can nocht infer airt or pairt. Anfueris, aucht to be
repellit, in refpect of the Dittay.
The Justice Repellis the haill former allegeances ; and ffindis proces.