Advocate, &c., answered, that as the defence resolved altogether into a denial of the libel, it was sufficient for him to say, that according to the information he had received, such facts and circumstances would come out upon proof as would be sufficient to convince the Jury of the panels' guilt: That it was not meant that the circumstances libelled were sufficient without others to connect with them, the only intention of libelling upon these circumstances being to show the panels what written evidence was to be adduced against them: That he does not oppose the panels being allowed a proof of every fact and circumstance that may tend to their exculpation: That as to the delay complained of, the prosecutor can for himself say, that it is owing to no intention of his to oppress the panels; he had early information of the murder charged upon, and was very willing and desirous it might come to light. The panels were at last accused and committed for it, by the general voice of the country; and though at first the proof against them did not appear so pregnant, yet it was hoped, and was the general expectation of all in that part, that the murder would be brought to light. This was the reason of continuing the panels in confinement. And now that the prosecutor was ready to go on to trial, he hoped their Lordships would find the indictment relevant, and remit the panels to the knowledge of an assize, allowing them at the same time a proof of every circumstance that may appear necessary for their exculpation.

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.

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.

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.

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