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THE LORDS Justice Clerk and Commissioners of Justiciary, having considered the indictment pursued at the instance of William Grant of Prestongrange, Esq., His Majesties Advocate for his Majesties interest, against Duncan Terig alias Clerk, and Alexander Bain Macdonald, both now prisoners in the Tolbooth of Edinburgh, panels, with the foresaid debate thereupon: They find the said indictment relevant to infer the pains of law; but allow the panels to prove all facts and circumstances that may tend to elide the indictment, or exculpate them, or either of them, from the guilt of the crime therein libelled: And remit the panels, with the indictment as found relevant, to the knowledge of an assize.

(Signed) CH. ARESKINE, I.P.D.

The Lords continue the diet at the instance of his Majesties Advocate, against the said two panels, till to-morrow at seven o’clock in the morning, and witnesses and assizers then to attend, each under the pain of law, and the panels to be carried back to prison.

CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo Burgi de Edinburgh undecimo 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, et Dominum Jacobum Ferguson de Killkerran, Commissionarios Justiciarios dict. S. D. N. Regis.

Curia legittime affirmata,

INTRAN.

DUNCAN TERIG alias CLERK, and ALEXANDER BAIN MACDONALD, both prisoners in the Tolbooth of Edinburgh, panels indicted and accused as in the former Sederunt.

The Lords proceeded to make choice of the following persons to pass upon the assize of the said Duncan Terig alias Clerk, and Alexander Bain Macdonald; to wit,–

Archibald Wallace, merchant in Edinburgh.
William Tod, senior, merchant there.
Andrew Bonnar, merchant there.
Robert Forrester, merchant there.
Walter Hogg, merchant there.
Alexander Crawford, baker in Edinburgh.
John Heriot, candlemaker there.
John Sword, merchant there.
William Ormiston, bookbinder there.
William Braidwood, candlemaker.
William Sands, bookseller in Edinburgh.
John Dalgleish, watchmaker there.
George Gray, merchant there.
John Welsh, goldsmith there.
James Gilliland, goldsmith there.

The above assize all lawfully sworn, and no objection to the contrary–

The panels and their procurators admitted the two judicial declarations libelled on, were emitted by them, before the two Judges therein named; and the said panels both now judicially adhere to the same, with this variation for Alexander Bain Macdonald, that it was a mistake in his said declaration, where it is said, that he went home to the house in Allanquoich, where he staid that night, and did not see Duncan Clerk any more that day after they parted on the hill, the true fact being, that he did not go home to the house in Allanquoich where he resided, till the night thereafter, and in the evening of that night went to the house of Duncan Clerk’s father, where he found Duncan Clerk, and staid all night, and that the reason of his former mistake was, that he by himself went again to the hills upon the twenty-ninth in quest of the deer which he had wounded the preceding day, and returned to his own house the evening of the said twenty-ninth; and this admission is signed by the said Duncan Clerk, and by Mr Alexander Lockhart, procurator for the other panel, who declares he cannot write.

(Signed) DUNCAN CLERK.
ALEX. LOCKHART.

Thereafter, His Majesty’s Advocate for proof adduced the following witnesses; viz.–

JEAN GHENT, relict of Arthur Davies, serjeant in the regiment commanded by Lieutenant-General Guise, aged about thirty-three years, who being solemnly sworn, purged of malice and partial council, and interrogate: Depones, That she was married for the space of ten months to Serjeant Davies the day he was missing, and that in summer seventeen hundred and forty-nine, her husband, with eight private men under his command, marched from Aberdeen to Dubrach in Braemar, in the shire of Aberdeen, which was assigned to him as his station; and that there was another party of the same regiment whose head-quarters was at Aberdeen, stationed at the Spittle of Glenlee, within eight miles of Dubrach, under the command of a corporal: That the two parties did meet twice a-week in patrol, about half way between the foresaid two places: That her husband was a keen sportsman, and used to go out a-shooting or fishing generally every day; and when he went along with the party on patrol, sent the men home and followed his sport; and on other occasions went out a-shooting by himself alone: That her husband was a sober man, a good manager, and had saved money to the value of about fifteen guineas and a half, which he had in gold, and kept in a green silk purse, which he inclosed within a leather purse along with any silver he had: That besides this gold, he generally wore a silver watch in his pocket, and two gold rings upon one of his fingers, one of which was of pale yellow gold, and had a little lump of gold raised upon it in the form of a seal, with a gold stamp on the inside of the ring, and a weaved line like a worm round the upper side of the plate: That the other was a plain gold ring, which the deponent had got from David Holland, her first husband, with the letters D. H. on the inside, and had this posie on it, “When this you see remember me:” That the said David Holland was paymaster-serjeant in General Guise’s regiment: And further depones, That the said Serjeant Davies commonly wore a pair of large silver buckles in his shoes, marked also with the same letters D. H. in the inside, which likewise had belonged to her said former husband, as also wore silver knee-buckles, and had two dozen silver buttons upon a double-breasted vest, made of stript lutstring: That he frequently had about him a folding penknife, that had a brown tortoise-shell handle, and a plate upon the end of it, on which was cut a naked boy, or some such device, with which he often sealed his letters: That one day when he was dressing some hooks while the deponent was by, she observed that he was cutting his hat with his penknife, and she went towards him, and asked him what he meant by cutting his hat? To which he answered, that he was cutting his name upon it: To which the deponent replied, she could not see what he could mean by putting his name upon a thing of no value, and pulled it out of his hand in a jocular way, but he followed her, and took the hat from her, and she observed that the A. was then cut out in the hat; and after he got it, she saw him cut out the letter D., which he did in a hurry, and which the deponent believed was occasioned by the toying that was between them concerning this matter, for when she observed it, she said to him you have made a pretty sort of work of it, by having misplaced the letters: To which he answered, that it was her fault, having caused him do it in a hurry. And the hat now upon the table, and which is lying in the clerk’s hands, and referred to in the indictment, being shown to her, Depones, That to the best of her judgment and belief, that is the hat above mentioned: Depones, That she never has seen neither the said Serjeant, the gold purse, or silver purse, above mentioned, nor the buckles for his shoes and knees, watch, or penknife, since he marched from his quarters with the party at the time at which he is supposed to have been murdered: Depones, That on Thursday, being the day immediately preceding Michaelmas, being the twenty-eighth of September, one thousand seven hundred and forty-nine, her husband went out very early in the morning from Dubrach, and that four men of the party under his command soon after followed him, in order to meet the patrol from Glenshye, and in the afternoon before four o’clock, the four men returned to Dubrach, and acquainted the deponent that they had seen and heard him fire a shot, as they believed, at Tarmatans, but that he did not join compan
y with them: That at the place appointed they met with a corporal and a party from Glenshee, and then retired home: Depones, That her husband never returned; that she has never met with any body that saw him after the party returned from the foresaid place, excepting the corporal that that day commanded the party from Glenshee, who told her that, after the forementioned party from Dubrach had gone away from the foresaid appointed place, Serjeant Davies came up to him all alone, upon which the corporal told him, he thought it was very unreasonable in him to venture upon the hill by himself, as for his part he was not without fear even when he had his party of four men along with him; to which Serjeant Davies answered, that when he had his arms and ammunition about him, he did not fear any body he could meet: Depones, That her husband, Serjeant Davies, made no secret of his having the gold above mentioned, but upon the many different occasions he had to pay and receive money, he used to take out his purse and show the gold; and that even when he was playing with children, he would frequently take out his purse and rattle it for their diversion, from which it was generally known by all the neighbourhood that the serjeant was worth money, and carried it about him: Depones, That from the second day after the serjeant and party went from Dubrach as aforesaid, when the deponent found he did not return, she did believe, and does believe at this day, that he was murdered; for that he and she lived together in as great amity and love as any couple could do that ever were married, and that he never was in use to stay away a night from her, and that it was not possible he could be under any temptation to desert, as he was much esteemed and beloved by all his officers, and had good reason to believe he would have been promoted to the rank of serjeant-major upon the first vacancy: Depones, That when her husband went away from Dubrach on the morning of the twenty-eighth of September aforesaid, he was dressed in a blue surtout coat, with a stripped silk vest, and teiken breeches and brown stockings: That he had in his purse fifteen guineas and a half in gold, a crown piece and three shillings in silver, his silver watch in his pocket, with a silver seal at it, his silver buckles in his shoes, and his silver buttons on his waistcoat, and the above mentioned rings on his fingers; and being asked how she came to know all these things were on him or about him when he went away as aforesaid? Depones, That she was privy and knew every thing that related to his money; and the night before the said twenty-eighth of September, the serjeant from Braemar had come to Dubrach, and in the deponent’s presence had given some money which was gold to Serjeant Davies, who gave him silver that he had by him for it, to pay the party; and upon occasion of this, she saw the quantity of gold above mentioned, which was in her husband’s possession, and that she saw the vest with the buttons and rings on his fingers, and also the watch, before he went away, he having in her presence put on the teiken drawers above mentioned, desired from her somewhat to keep the watch dry, upon which she gave him a piece of cloth, the said drawers being a little damp, in which he wrapt it, and put it into his pocket: Depones, That he had dark mouse-coloured hair, tied up with a black silk ribband behind, and wore a hat with a silver lace and silver button, marked with the letters D. A. on the outside of the crown of the hat: And the deponent verily believes, that the hat now shown to her, and above referred to, is the hat he took out with him: Depones, That he wore that day a pair of brogues which he had bespoke to be made so as they could fit buckles, and not to be tied with latches, conform to the common use of that country: That these brogues the deponent saw when they were first brought home from Glenshee: Depones, That a gun now exhibited and shown to the deponent, is the gun which her husband, Serjeant Davies, received in a present from Lieutenant Brydon, of the same regiment with him, and the gun which he always used when he went a-shooting, and which he carried out with him in the morning of the twenty-eighth of September, one thousand seven hundred and forty-nine aforesaid: That the stock of the gun is altered about the butt, and a plate that was on the butt-end is taken away, and the wood pared, but that she knows the barrel by a cross rent that is in it a little above the middle, and which her husband told her had been occasioned by his firing a shot when the gun was overloaded and the ball had stuck at that part of the barrel when he was loading her: Depones, That from the time her husband was quartered at Dubrach in the month of June to the foresaid twenty-eighth of September one thousand seven hundred and forty-nine, he was never absent a night from his command at Dubrach except one, that he went to the doctor of the regiment to take his advice about a strain, and he returned next morning: Depones, That upon the Monday after the Serjeant was believed to be murdered, the country was raised to make search for the body, but it was not found; and that she spoke to one of the prisoners, Clerk, whom she took to be a particular friend, to try if he could find the body, but it was not found: That afterwards the deponent went to the garrison in Braemar, and from that to the regiment: And being interrogate for the panels, whether her husband had received any information before the party marched out upon the day above mentioned that there were people in arms in that country where he was stationed? Depones, That her husband was stationed there, as she believes, because it was said that severals of the Highlanders had not delivered up their arms since the Rebellion, and wore the highland garb; but that she knows nothing of any particular information he had about that time, except that about the beginning of harvest, on a Sunday afternoon, a woman, who said she had been in the hill, came in where the Serjeant and the deponent were sitting at dinner, and said, that she had seen two men in highland clothes, and armed, lying at the mouth of a cave, who seemed to be herding two cows which she saw, and upon her coming near them, consulted among themselves whether they should not bind her lest she should return and advertise Serjeant Davies and his party; but however, she had got away, and had come immediately to give notice to the Serjeant and his party, whereupon he and a party of six men went up in quest of them, but found nobody, neither did the deponent hear any more of that matter afterwards, Causa scientiae patet: And this is truth, as she shall answer to God; and declares she cannot write.