solemnly sworn, purged of malice and partial council, by the sworn
interpreter aforesaid, and by him interrogate, Depones, That he was
loading his horse with corn, to be carried into the barnyeard at the
miln of Inverey, upon that day that Serjeant Davies was amissing: That
between the midday and sunset he heard three gunshots, but cannot tell
from what particular place the sound came: That the three shots were
pretty near one another, and all within less than a quarter of an hour.
Depones, That the Hill of Christie, libelled, is about a mile's
distance to the entrance thereof from the place where he then was, and
that it will be at least three miles from there to the place where the
bones were found. Depones, That he was told that Isobel Ego, a
preceding witness, found a hat in the Hill of Christie, which she
brought home and delivered to her master: That he heard her master hid
it at the Burnside, under a stone: That some time thereafter some of
the bairns of Inverey found the said hat, and brought it to his the
deponent's father's house, where he saw it; and the hat libelled being
shown to him, depones, he having inspected it, That it is the same hat
which was so brought to his father's house, and pointed out the letters
D. A. thereon at deponing, and that he himself delivered the said hat
to James Small, factor on the estate of Strowan. _Causa scientiae
patet._ And this is the truth, as he shall answer to God.
(Signed) DONALD DOWNIE.
ALEX^R FRASER.
JOHN COOK, barrackmaster at Braemar Castle, aged thirty years and
upwards, _solutus_, solemnly sworn, purged of malice and partial
council, examined and interrogate, Depones, That the hat libelled now
shown to him, was delivered by Donald Downie, the preceding witness, to
James Small, before designed, at the house of one Charles, in
Castletown of Braemar, and was delivered to the said deponent by Mr
Small, to be kept by him till it should be called for; and that he
brought it along with him to town, and he knows it to be the same by
the letters D. A. which he often observed thereon, and now at deponing:
Depones, That after Serjeant Davies was amissing, a report sprung up,
that one Levingston, a soldier, having a prejudice at him, had murdered
him; but, upon enquiry, it being found, who had had leave of absence,
returned to the garrison the afternoon of that day on which the
Serjeant was amissing; the report thereon ceased, and about ten days
thereafter it was reported that the Serjeant had been murdered by two
young men about Inverey. And about a year and a half after the Serjeant
had been amissing, he heard Duncan Clerk the panel named as one of
them, but never heard any thing of Alexander Macdonald, the other
panel, till he was committed prisoner to the Castle of Braemar in
September last. _Causa scientiae patet._ And this is the truth, as he
shall answer to God.
(Signed) JOHN COOK.
HEW DALRYMPLE.
Compeared JOHN GRANT, in Altalaat, aged forty years and upwards,
married, solemnly sworn, purged of malice and partial council, examined
and interrogate: Depones, That both the panels lodged in his house upon
the night of the twenty-seventh of September, one thousand seven
hundred and forty-nine: That next morning they breakfasted, after the
sun rising, with him; and as he was going to a Michaelmas fair, when he
came out of his house, he looked and saw the two panels at his door,
each having a gun in his hand, and they told him that they intended to
go a deer hunting, but did not mention to what place: That the deponent
accordingly went to the fair, and returned in about four days home, and
then heard that a soldier who had been upon some of the hills was
amissing, and in a very short time heard it was Serjeant Davies: That
at first it was rumoured that some of the Serjeant's own men had killed
him; and afterwards that he had been killed by some outlaws; and after
that it was clattered that the panels had killed him: Depones, That the
night the panels lodged with him as above, one of them talked of going
the next morning in quest of horses for leading in corn, without
mentioning from where. _Causa scientiae patet._ And this is the truth,
as he shall answer to God. This deposition signed by Duncan Campbell,
sworn interpreter.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
JOHN GRANT, son to the said John Grant in Altalaat, aged twenty years,
solemnly sworn, purged of malice and partial council, by the sworn
interpreter aforesaid, and by him interrogate: Depones, That he knows
the panels, and that they lodged with his father the night of the
twenty-seventh of September, one thousand seven hundred and forty-nine:
That next morning the panels, each of them having a gun, and Duncan
Clerk a grey plaid about him, went up the water to the hill of Gleneye,
which is about a mile and a half distant from the hill of Christie:
That the road they took was not the direct road to the hill last named;
and before they went they said they were going a deer hunting and for
horses to lead in their corns: That three or four days after this, they
heard that Serjeant Davies was amissing, and that he was killed in the
hill of Christie; but the last part of this he did not hear till some
time, a year or two thereafter. _Causa scientiae patet._ And this is
truth, as he shall answer to God.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
ELSPETH MACARA, in Inverey, late servant to Duncan Clerk, one of the
panels, aged thirty-two years; solemnly sworn, purged of malice and
partial council, as aforesaid, and interrogate, Depones, That she was
fellow-servant, about three years ago, with Alexander Macgillies, a
preceding witness, in Duncan Clerk, the panel's house: That she once
saw in the said Alexander's hands a yellow ring, but knows not if it
was gold, with a knob upon it of the same metal; which ring she
frequently observed on the finger of the wife of the said Duncan Clerk.
And further depones, That the said knob was bigger above and smaller
below, and shaped something like a heart. _Causa scientiae patet._ And
this is truth, as she shall answer to God. This deposition signed by
the above interpreter.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
JOHN GROWAR, in Inverey, aged fifty years and upwards, a widower; who
being solemnly sworn, purged of partial council, and interrogate,
Depones, That upon the 28th of September, 1749, the deponent having
gone to a glen called Glenconie, to bring home his horses to lead in
the corns, he met with Serjeant Davies, of whom he had some
acquaintance before; and he had at that time a good deal of
conversation with him, particularly with relation to a tartan coat
which the Serjeant had observed the deponent to drop, and after
strictly enjoining him not to use it again, dismissed him, instead of
making him prisoner: That the deponent went home with his horses, and
saw no more of the Serjeant, who was alone; and that their meeting was
about an hour after sunrising, to the best of the deponent's knowledge:
That some time thereafter, about four years ago, he was told by
Alexander Macpherson _alias_ M'Gillies, a former witness, that the
Serjeant's ghost had appeared to him, M'Gillies, and had desired him to
bury his, the Serjeant's, bones, and to bring Donald Farquharson, also
a former witness, along with him; but M'Gillies at that time did not
mention the place where the bones were to be found, but afterwards told
the deponent that the Serjeant's bones were found in the place to which
the ghost had directed him; and one day the said M'Gillies and the
deponent being in the hill together, he, M'Gillies, pointed to him the
place where they were found, which was not far from the place in which
he had formerly met Serjeant Davies, upon the 28th of September
aforesaid; and that two years ago, in labouring time, the said
M'Gillies told him that the said ghost came to M'Gillies's master's
house, and the door flung open, and took M'Gillies out of the house,
and told him that the panels had been his murderers. Depones, That
about two years ago he had a conversation with M'Gillies, who told him,
that one day coming from the hill with Duncan Clerk, the panel, then
his master, and another time when in bed, he had a conversation with
the said Duncan concerning Serjeant Davies's murder, and all the answer
Duncan made was, What can you say of an unfortunate man? Depones, That
about ten or eleven years ago, Duncan Clerk, the panel, was said to
have stolen some sheep from one Alexander Farquharson, in Inverey, and
there was a Sheriff-court held upon that matter at the Mill of
Achindryne, in which nothing was found against the said Duncan, but
John Ewes alias M'Donald was fined, and the deponent became cautioner
for him, that he should never speak about it again. _Causa scientiae
patet._ And this is the truth, as he shall answer to God.
(Signed) JOHN GREWER.
HEW DALRYMPLE.
ANGUS CAMERON, in Easter Finart, Rannach, aged thirty years and
upwards, solemnly sworn, purged of malice and partial council, by
Duncan Campbell, sworn interpreter, and by him interrogate, Depones,
That he was in Braemaar four years past at Michaelmas last; that is, in
the year 1749: That about an hour and a half before sun-set on the 28th
of September, he being on the hill of Galcharn, on the side thereof,
saw a man in a blue coat, with a gun in his hand, with a hat which had
a white edging about it, he knows not whether it was silver or not; and
saw other two men, one of whom was the panel Duncan Clerk, who he had
seen upon former occasions, and another man of a lower stature than the
said Duncan Clerk, coming up the hill towards the first mentioned man,
who was distant from him, the deponent, about a gunshot, upon, or near
the top of a hill opposite to him, the deponent, the name of which he
does not know, he being a stranger in that country; that there was
another man along with him, the deponent, named Duncan Cameron, and
that they were waiting there for other travellers, and his said
companion is dead about three years ago: Depones, That he saw Duncan
Clerk, the panel, and his companion, whom he did not, nor does not
know, meet with the man clad in blue, as aforesaid; and after they had
stood for some time together, he saw Duncan Clerk, the panel, strike at
the man in blue, as he thought, with his naked hand only, upon the
breast; but, upon the stroke, he heard the man struck cry out, and clap
his hand upon the place struck, turn about, and go off: That the panel
Duncan Clerk and the other man stood still for a little, and then
followed after the man in blue, and saw him, the said Duncan and the
other man, each of whom had a gun, fire at the man in blue: That the
two shots were very near one another; and immediately upon them, the
man in blue fell: That Duncan Clerk, the panel, had upon him a grey
plaid, with some red in it, whom he saw that same day, and his
companion along with him, (but spoke to none of them,) about mid-day,
and that they passed him as he was lying upon the same hill; and that
both times that same day, that he had occasion to see the said Duncan
Clerk and his companion, he was lying in a little hollow upon the side
of the said hill of Galcharn, in such a manner, as he thinks, neither
the said Duncan Clerk, or his companion did see him: And depones, That
there was no long heather in the said hollow where he was lying:
Depones, That after the man in blue fell, in manner above mentioned,
the panel Duncan Clerk, and his companion, went up to him; and as it
was the deponent's opinion the man was dead, he saw them stoop down,
and handle his body; and while they were so employed, he, the deponent,
and his companion, got up, and made off: Depones, That he did not
mention any thing of the premises to any body for nine months or a
twelve month, and then he spoke of it to one Donald Cameron, and to
Duncan Cameron, a different man from him above mentioned, who advised
him to say nothing of it, as it might get ill-will to himself, and
bring trouble on the country; some people that he told it to said, that
people would not believe him, but rather think he was telling lies:
That it was six months after what he saw, and has deponed upon, that he
heard that Serjeant Davies was amissing. And being interrogate for the
panels, depones, That he came to the said hill of Galcharn, and lay
down in the hollow about two hours after sun-rising; and depones, That
he and his companion were, the night before the twenty-eighth of
September aforesaid, in Glenbruar Braes, which is about ten miles
distant from the hill of Galcharn; and that he left these braes about
the end of said night; and that the travellers that he expected to pass
that day were Donald Cameron, who was afterwards hanged, together with
some of the said Donald's companions from Lochaber. _Causa scientiae
patet._ And this is the truth, as he shall answer to God. This
deposition signed by the sworn interpreter aforesaid.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
DUNCAN CAMERON, in Dunan, aged twenty-eight years, unmarried, solemnly
sworn, purged of malice and partial council, examined and interrogate,
Depones, That in the summer after he had heard that one Serjeant Davies
was amissing, Angus Cameron, a preceding witness, told the deponent
that he saw Duncan Clerk, and another person unknown, shoot a man in
Braemaar, whom the said Angus, by his dress, believed to be a serjeant
or officer; upon which the deponent said he did not want to hear any
more on that subject. _Causa scientiae patet._ And this is the truth, as
he shall answer to God.
(Signed) DUNCAN CAMERON.
GILB. ELLIOT.
DONALD DOW CAMERON, in Milntown of Ashintilly, Strathardle, aged
forty-four years, married; who being solemnly sworn, and purged of
partial council, by Duncan Campbell, sworn interpreter aforesaid, and
by him interrogate, Depones, That in the summer after he heard that a
serjeant in Braemaar was amissing, whose name he thinks was Davidson,
or something like that, Angus Cameron, a preceding witness, told the
deponent that he had seen Duncan Clerk the panel, and another man along
with him, shoot a man, like a gentleman or an officer, upon a hill in
Braemaar: That upon this the deponent told the said Angus Cameron that
he did not want to hear more any such stories, nor to have such a
report raised of the country; and the deponent at the same time advised
Angus to keep the thing secret, and to speak no more on the subject.
_Causa scientiae patet._ And this is the truth, as he shall answer to
God. This deposition signed by the sworn interpreter aforesaid.
(Signed) DUNCAN CAMPBELL.
GILB. ELLIOT.
LAUCHLAN M'INTOSH, in Inverey, aged near thirty years, unmarried,
solemnly sworn, purged of malice and partial council, examined and
interrogate by the sworn interpreter aforesaid, Depones, That the
panel, Duncan Clerk's father, his house is within less than a quarter
of a mile of the deponent's house: That upon the afternoon of that day
in which Serjeant Davies was amissing, as he thinks, or at least the
afternoon of the day following, he cannot be altogether positive which,
he saw Duncan Clerk, panel, come from the hill to his father's house,
with a gun in his hand, and a sort of grey plaid about him: That he
does not remember that he saw him about his father's house before that
time in the afternoon of that day. _Causa scientiae patet._ And this is
the truth, as he shall answer to God.
(Signed) LAUCHLAN M'INTOSH.
GILB. ELLIOT.
JEAN DAVIDSON, spouse to Gregor Keir, in Inverey, aged thirty years,
married; who being solemnly sworn, and purged of malice and partial
council, by the sworn interpreter aforesaid, Depones, That she lived in
the same town with Duncan Clerk, the panel's father, who is now dead:
That the evening of the day upon which Serjeant Davies was first
amissing, she saw Duncan Clerk, the panel, return from the hill to his
father's house about sun-setting, having a plaid upon him, with a good
deal of red in it, but whether he had a gun in his hand the deponent
did not observe: That Duncan Clerk's father was that day working among
his corns; and the deponent did not see the said Duncan about the town
till the evening, as above deponed upon. And further depones, being
interrogate for the panel, That when she first saw Duncan Clerk, she
was among the corns with his father a little below the town, and that
Duncan was about a gun-shot from her, coming towards his father's house
from the hill, and that he came near to the place where she was with
his father. _Causa scientiae patet._ And this is the truth, as she shall
answer to God. And this deposition is signed by the foresaid sworn
interpreter.
(Signed) DUNCAN CAMPBELL.
ALEX^R FRASER.
LAUCHLAN M'INTOSH, servant to William Grant of Burnside, aged
twenty-one years, solemnly sworn, purged of malice and partial council,
examined and interrogate, Depones, That he was a servant to Michael
Farquharson in Dubrach, in whose house Serjeant Davies quartered: That
he saw the Serjeant have a little pen-knife, upon the end of the haft
of which there was a seal for sealing of letters, and he heard the
Serjeant say that was the use he made of the said seal: That he saw
Serjeant Davies leave his master's house about sun-rising that day upon
which he was amissing; that he never saw him since: That about two
years thereafter, being on the hill with Alexander Macdonald the panel,
and the said Alexander Macdonald had in his hand a pen-knife, which the
deponent saw, very like the pen-knife which Serjeant Davies had above
mentioned: That the deponent, upon seeing that pen-knife, told
Macdonald that the pen-knife he then had was very like Serjeant
Davies's pen-knife, and Macdonald made answer that there were many
siclikes: And further depones, That he saw the Serjeant have a green
silk purse, in which he saw the Serjeant put in and take out several
pieces of gold: The deponent does not remember what the handle of the
Serjeant's knife was made of, nor does he remember what was engraven on
the end of the handle of the pen-knife which the Serjeant had, nor the
end of the handle of the pen-knife which Macdonald had, but that both
seals were white. _Causa scientiae patet._ And this is the truth, as he
shall answer to God. And depones he cannot write.
(Signed) ALEX^R FRASER.
JOHN BROWN in Drumcraggan, aged sixty years, or thereby, solemnly
sworn, purged of malice and partial council by the sworn interpreter
aforesaid, and by him interrogate, Depones, That he was ground-officer
for the lands of Inverey, and was so at the time when Serjeant Davies's
body was amissing: That he was ordered by the Chamberlain of Inverey,
to call out the country people in search for Serjeant Davies's body,
which accordingly he did search for with the country people for two
days, without finding it: That the last of the two days, as the
deponent and the country people were returning home, and had given over
the search, the panel, Duncan Clerk, challenged the deponent for
troubling the country people with such an errand, and upon this the
deponent and the said Duncan Clerk had some scolding words. _Causa
scientiae patet._ And this is the truth, as he shall answer to God. And
depones he cannot write. And this disposition is signed by the foresaid
sworn interpreter.
(Signed) DUNCAN CAMPBELL.
ALEX^R FRASER.
_Follows the Witnesses adduced by the Panels in exculpation._
Captain JOHN FORBES of New, aged forty-five years, married, who being
solemnly sworn, purged of malice and partial council, examined and
interrogate, Depones, That James Small having suggested to the deponent
that it might be proper that Duncan Clerk the panel's wife, should be
examined upon what rings she had in her possession, and that some other
witnesses in relation thereto, might be precognosced, presented a
petition to the deponent, as the next Justice of Peace to where she
lived, craving, to the purpose above mentioned: That the deponent went
for that end to Braemaar; and she being summoned to appear at the
Castletown of Braemaar, appeared before the deponent, and declared, in
substance, as follows: That since she was married, a small brass ring,
which she then presented to the deponent, and a gold ring which she got
from her mother, and wore sometimes, were the only rings that she had
since her marriage; and that before her marriage she got a copper ring
from one Allan M'Donald, brother to James Macdonald, in Allanquoich,
with a round knot of the same metal raised upon it, which, the summer
before she was married, she gave to Alexander M'Intosh alias Rioch,
then a glen-herd, and now servant to Thomas Gordon in Fetherletter, in
Strathaven, and that she was married to the said Duncan Clerk, panel,
in harvest 1751. _Causa scientiae patet._ And this is the truth, as he
shall answer to God.
(Signed) JOHN FORBES.
HEW DALRYMPLE.
DUNCAN KEIR, in Glenmuick, aged twenty and upwards, unmarried, solemnly
sworn, purged and interrogate, Depones, That the day that the Braemaar
men were going to the Michaelmas fair in Strathaven, which was the day
before the said fair held, he saw Duncan Clerk, the panel, at Gleney,
where the deponent then lived, before he and the other shearers there
had got their dinner, and that they dined sometimes later and sometimes
more early, and cannot tell at what time they dined that day, but the
sun was a good while high when he saw him: That he had on a plaid,
which he thinks was grey: That Gleney is a mile farther up the water
than Inverey towards the hill; and the next day, after he saw the said
Duncan Clerk as above, he heard that Serjeant Davies was amissing.
_Causa scientiae patet._ And this is the truth, as he shall answer to
God. And depones he cannot write.
(Signed) HEW DALRYMPLE.
ELIZABETH MACDONALD, in Tulloch of Invercauld, aged twenty-eight years,
unmarried, solemnly sworn, purged and interrogate by the sworn
interpreter aforesaid, Depones, That the day before she heard Serjeant
Davies was amissing, she saw Duncan Clerk, the panel, at the shearers
of Gleney, but did not observe from whence he came: That she does not
remember that he had either a gun or a plaid, but thinks that he had a
short blue coat upon him, and that Gleney is a mile farther up the
water towards the hill than Inverey: That when she saw the said panel
it was before dinner, which they took early that day, being betwixt
twelve and one; and that Duncan Keir, the preceding witness, was one of
the said shearers; and that Gleney is about a mile from Glenconie.
_Causa scientiae patet._ And this is the truth, as she shall answer to
God. This deposition signed by the said sworn interpreter.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
The Lords Commissioners of Justiciary fine and amerciate Ronald
Macdonald, brother to James Macdonald in Allanquoich, and Alexander
Macintosh _alias_ Reoch, now servant to Thomas Gordon of Fetterletter,
in Strathaven, and each of them, in the sum of one hundred merks Scots
money, for their not appearing this day and place, to bear leal and
soothfast witnessing, in so far as they knew, or should be asked at
them, anent the said panels, Duncan Terig _alias_ Clerk, and
Alexander Bain Macdonald, their guiltiness of the crime of murder
mentioned in the said indictment, raised at the instance of his
Majesty's advocate against them thereanent, as they, who were lawfully
cited for that effect, thrice called, and not compearing.
(Signed) GILB. ELLIOT, I.P.D.
The Lords ordain the assize forthwith to inclose in the Exchequer-Room,
and to return their verdict against six o'clock in the afternoon
to-morrow, in this place; and ordain the haill fifteen then to be
present, and the panels to be carried back to prison.
_CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo
Burgi de Edinburgh, Duodecimo 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, Commissionarios Justiciarios dict. S. D. N. Regis._
_Curia legittime affirmata._
INTRAN.
DUNCAN TERIG _alias_ CLERK, and ALEXANDER BAIN MACDONALD,--Panels.
Indicted and accused as in the former Sederunt.
The persons who past upon the assize of the said panels, returned
their verdict, in presence of the saids Lords, whereof the tenor
follows:
AT EDINBURGH, the twelfth day of June, one thousand seven hundred
and fifty-four years.