Act, 14 March 1695, Edinburgh

Warrant, 31 December 1695, Edinburgh

Edinburgh The 14th March 1695

D1695/3/161

Act

Act The Lady Newgrange

Anent the petitione given in to the Lords of his majesties privy Councill be Dame Anna Rait Spouse to Sir Francis Ogilvie of Newgrange Shewing That quher ther eldest sone haveing maried Hetherwicks daughter for effectuating the said mariadge the petitioner did run his familly in great debt and ther son did otherwise spend profusely and his father hade not the Confidence to Contradict him In respect the petitioners hade the expectatione That Hetherwick would setle his fortune upon him and his Cheldrein, And the petitioners husband having ingadged himself as Cautioner for his sone in all his debts, How sone Hetherwick did Declare that he was resolved to Disheirish his daughter, The said Creditors did use dilligence against the petitioners husband, and he was throwen in prisone, and yet even then her husbands estate not being exhausted they were allowed some small part of the estate for their subsistance till at last the Creditors haveing Ledd adpridicationes for the penalties the petitioners then to be in hard Circumstances But yet they did not offer to Complaine so long as the estate was possessed by their Just Creditors But now James Carnegie of Westerbraikie his Childrein doe possess twentie two Chalder of victuall which the petitioners husband did hold of him and that upon the account of his Lyfrent escheat which he did declair upon ane old retired horning at the Earle of Panmures instance against the petitioners husband for two thousand merks The which soume was long since payed to the Earle as their Lordships might perceive by the retired horning and Discharge therwith produced and now the petitioner, her husband, and Cheldrein being redacted to a sterving Conditione She is necessitate to make this applicatione to their Lordships wherin the petitioner must farder represent That the rest of his estate Which he holds of the king To Witt Newgrange and Lounam is sequestrat and a factor one Mr John Morgan constitute by the Lords of sessione So that no mean of releiff or subsistance can be therby obtained, And Farder that the petitioner brought with her ane oppulent Tocher of Twelue Thousand merks all really payed, And that by Contract of mariage she was provyded to Eightein Chalders of victuall in Junture and Lyfrent, And seing that the Conditione of her husbands Childrein and familly doe deserve the saids Lords Comisseratione upon alse pressing motives as can be in such a case and that the aliement Craved is not so much against the Creditors as against the rigour of a severe superior And Therfore Humbly Craveing the saids Lords In Consideration of the premises To modifie for the petitioner and her familly ane aliement of Ten Chalders of victuall or ane Thousand merks yearly to be payed to the petitioner out of the Lands of Easterbreakie by the representatives of their said superior who seized the same upon pretense of a lyfrent Escheat and over and above the said ten Chalders, of victuall will have still twelue Chalders of victuall which his said representatives possess for nothing as the said petitione bears The Which petitione being upon the Nynteinth of February last by past read in presence of the saids Lords of his majesties privy Councill They allowed the Creditors of Newgrange to see and answer the same, And the saids Creditors having faillied to give in answers The saids Lords upon the twentie sixth day of the said moneth off February Having Considered the said petition They modified and heirby Modifies the Soume of ane Thousand merks scots for aliement to the petitioner and her familly for the Cropt and year of God Jaj vjc nyntie four years and ten Chalders of victuall furth of the lands of Easterbreakie for the Cropt and year o God Jaj vjc nyntie five and yearly therafter and appoints the representatives of James Carnegie of Westerbreakie superior of the petitioners husband Lands, To make payment to the petitioner of the said Soume of ane thousand merks for the Cropt Jaj vjc nyntie four at the terme of Whitsunday nixt to come And Ordaines the Shireff principall of the shyre of Angus or his deputs to put the petitioner in the possessione of the saids lands of Easterbreakie at least as much of the Lands, which belonged to her husband as will Compleatly satisfie her of the said ten Chalders of victuall free and Clear from all publict burdeins ministers stipends and other incumberances whatsomever and that at the said terme of Whitsunday, And Ordaines the tenants and possessors of the Saids Lands of Easterbreakie or other Lands which the petitioner shall be entered to the possessione of to make payment to her of the said ten Chalders of victuall for the Cropt and year Jaj vjc nyntie five betwixt the terme of mertmiss and the feast of Christenmiss Jaj vjc nyntie five, and of the like aliement of Ten Chalders of victuall yearly betwixt the said terme of mertimiss and Christenmiss each year dureing the lifetime of the petitioner, And the said […] Ogilvie of Newgraige her husband And ordaines letters of horning to be direct heiron both against the representatives of the said Superior and against the tennants of the saids lands of Easterbreakie all to be particularly named in the horning and others needfull to be direct heiron in forme as effeirs and the horning to be on fiftein dayes. And ther being a petitione given in be the younger Cheldrein of the said James Carnegie of Braikie and the Laird of Phinhaven ther tutor by way of answer to the Ladies petitione Shewing That quher the Lady Newgrange haveing presented a sumar petition to the saids Lords Representing that she was in a desolat Conditione And that Breakies Childrein Did possess twentie two Chalders of victuall belonging to Newgrange be vertue of the right of his escheat And Therfore Craving that ten Chalders of victuall might be assigned to the2 her3 for ane aliement This petitione being appointed to be seen and answered by the Creditors of Newgrange and no answers being offered ther Lordships takeing all for granted that was represented have appointed one Thousand merks to be presently payed by the petitioners and ten Chalders of victuall yearly dureing new granges life It is now humbly Represented to the saids Lords primo that ther residence being at a distance they never hade the least intimatione or nottice of the Ladies applicatione till ther Lordships hade determined it, And the petitioners Doe humbly Conceave that no determinatione can in justice pass against any party without Citatione especially against parties whose residance is far distant and against pupills and orphans Their Lordships have some times dispensed with the formallity of Lybells especially against such as receid on the place, But the Least that Could be allowed hade bein ane authentick Copie of the Complaint delivered be the persuars to the partie concerned, Secundo It was unjustly and falsely represented that the subject intromitted with by the petitioners did amount to twentie two Chalders to the petitioners For evinceing to ther Lordships the Calumney of this alledgence all the favors the petitioners desyre is that the said twelue Chalders of victuall may first and preferrably belong to the petitioners and then ther petitioners shall not gruge that the Compleaners take what farder can be found But the plaine truth is ther are some reall debts preferrable to the Escheat which with the publict burdeins being deduced, Ther will not remaine Eight Chalders of victuall in the petitioners possessione wherby ther Lordships might perceive the ingenuity of the Complainer and how litle is to be taken upon her trust Secundo4 the petitioners farder begg Libertie to alledge that ther is no Latitude for modifieing of any aliement in this case, Because the petitioners possessione is be vertue of a decreet of the Lords, preferring ther deceast father to the Lands which they possess and quherof the rents are Liquidate in that Decreet Therfore the petitioners portione being be vertue of a legall right sustained and Declared by the ordinary Judge, Ther Lordships Cannot Justly burdein or restrict the petitioners right or possessione, For albeit the necessity of speedy Dispatch of procesces of aliement be such as can admitt of no delay, And Therfore ther Lordshipes have in some caises sustained such actiones, yet such aliements have only been sustained as are founded upon Law or some Claime in the persone of the Complainer as aliements of airs against Lyfrenters, Ward vassells against superiors and sometimes unprovyded Cheldrein against the representatives of their parents, But it was never heard that a debitor whose estate was exhausted by Legall dilligences, or burdeined with lyfrent escheats that he or his wife or familly hade right to Crave ane aliement of a Creditor or superior bruiking by the vassells escheat It hath been often reckoned a groundless simulatione to annull a gift that the rebell or his wife or any of his familly did continue to possess, But it wes never thought that any Judicator had latitud to burdein ane Escheat with ane aliement in favors of the rebell or his familly, and What ever may be alledged that the escheat is a penall and no favorable Casuality yet primo It is a Casuality which the Law hath favorable possessione in the petitioners For their father haveing Declared that escheat, They have no other fond of subsistance or provisione then the said possessione wherof if they were deprived they had a nothing at all Tertio what ever, the Creditors of Newgrange can alledge he cannot Justly Complaine Beacus without any regaird to the Escheat his Estat is much more then exhausted by reall and true debts and its falsely represented that these debts were Cautionries for Newgrange his sone, For the dilligences are all done upon his oun proper debts, and it were not agreeable to law, That the Casuality of Escheat should be taken from the superior and misrepresentatives and applyed to the rebell to the exclusione of his Creditors, The only hardship of the escheat, Is that the Creditors are excluded by it In which the petitioners improvyded and otherwayes destitute Cheldrein are very favorable, But neither law nor equitie can permitt that the escheat shall be keept up to the exclusione of the Creditors for sustaineing the rebell and his familly, To the prejudice also of the superiors legall right and Casuality, And Therfore Humbly Craveing the saids Lords to Consider the premises and especially that the wholl value of the escheat exceids not Eight Chalders of victuall yearly after Deductione of preferrable debts and burdeins and that this small Casuality is the only mean of the petitioners subsistance and aliement and that ther is neither Law nor example for burdening a superiors Casuality of Escheat Declared with any aliement in favors of the rebells his wife and familly And Therfore to Recall the former interloquitor, and if any deficulty remaine, That their Lordships would tear them upon the premises as the petitione bears The saids Lords haveing upon the seventh day of march instant heard the said petitione read in ther presence They Declared they would hear the petitioners and ther Lawiers, and likewayes the Lady NewGrange5 and her Lawiers in the forsaid matter And appointed then to be ready for that effect And the saids Lords haveing this day Called for the parties and their Lawiers Compeired Mr Mongo Carnegie advocat as procurator for the Lady Newgrange And sicklike Compeired Mr Hew Dalrymple and Mr William Aikman advocats as procurators for the said Childrein of James Carnegie of Braikie and ther tutor The advocats for both parties being fully heard, and the Councill haveing Considered the debate They Adhere to the for[mer] [inte]rloquitor pronunced in the said Lady NewGraing6 7 favors unles the rent of the said estate of Easterbreakie be within the soumes or Chalders of victuall Decerned for in the soume and if the rent be within the soumes of money or quantities of victuall Decerned for them the saids Lords Doe heirby Modifie the rent of the said haill estate for aliement to the persewer and her familly, and ordaines her to be put in possessione of the same and to be payed of the rents of the said haill estate in maner as is appoynted for the soumes of money and victuall Contained in the former interloquitor, And Ordaines executione to pass heiron as in the said former interloquitor.

Edinburgh The 14th March 1695

D1695/3/161

Act

Act The Lady Newgrange

Anent the petitione given in to the Lords of his majesties privy Councill be Dame Anna Rait Spouse to Sir Francis Ogilvie of Newgrange Shewing That quher ther eldest sone haveing maried Hetherwicks daughter for effectuating the said mariadge the petitioner did run his familly in great debt and ther son did otherwise spend profusely and his father hade not the Confidence to Contradict him In respect the petitioners hade the expectatione That Hetherwick would setle his fortune upon him and his Cheldrein, And the petitioners husband having ingadged himself as Cautioner for his sone in all his debts, How sone Hetherwick did Declare that he was resolved to Disheirish his daughter, The said Creditors did use dilligence against the petitioners husband, and he was throwen in prisone, and yet even then her husbands estate not being exhausted they were allowed some small part of the estate for their subsistance till at last the Creditors haveing Ledd adpridicationes for the penalties the petitioners then to be in hard Circumstances But yet they did not offer to Complaine so long as the estate was possessed by their Just Creditors But now James Carnegie of Westerbraikie his Childrein doe possess twentie two Chalder of victuall which the petitioners husband did hold of him and that upon the account of his Lyfrent escheat which he did declair upon ane old retired horning at the Earle of Panmures instance against the petitioners husband for two thousand merks The which soume was long since payed to the Earle as their Lordships might perceive by the retired horning and Discharge therwith produced and now the petitioner, her husband, and Cheldrein being redacted to a sterving Conditione She is necessitate to make this applicatione to their Lordships wherin the petitioner must farder represent That the rest of his estate Which he holds of the king To Witt Newgrange and Lounam is sequestrat and a factor one Mr John Morgan constitute by the Lords of sessione So that no mean of releiff or subsistance can be therby obtained, And Farder that the petitioner brought with her ane oppulent Tocher of Twelue Thousand merks all really payed, And that by Contract of mariage she was provyded to Eightein Chalders of victuall in Junture and Lyfrent, And seing that the Conditione of her husbands Childrein and familly doe deserve the saids Lords Comisseratione upon alse pressing motives as can be in such a case and that the aliement Craved is not so much against the Creditors as against the rigour of a severe superior And Therfore Humbly Craveing the saids Lords In Consideration of the premises To modifie for the petitioner and her familly ane aliement of Ten Chalders of victuall or ane Thousand merks yearly to be payed to the petitioner out of the Lands of Easterbreakie by the representatives of their said superior who seized the same upon pretense of a lyfrent Escheat and over and above the said ten Chalders, of victuall will have still twelue Chalders of victuall which his said representatives possess for nothing as the said petitione bears The Which petitione being upon the Nynteinth of February last by past read in presence of the saids Lords of his majesties privy Councill They allowed the Creditors of Newgrange to see and answer the same, And the saids Creditors having faillied to give in answers The saids Lords upon the twentie sixth day of the said moneth off February Having Considered the said petition They modified and heirby Modifies the Soume of ane Thousand merks scots for aliement to the petitioner and her familly for the Cropt and year of God Jaj vjc nyntie four years and ten Chalders of victuall furth of the lands of Easterbreakie for the Cropt and year o God Jaj vjc nyntie five and yearly therafter and appoints the representatives of James Carnegie of Westerbreakie superior of the petitioners husband Lands, To make payment to the petitioner of the said Soume of ane thousand merks for the Cropt Jaj vjc nyntie four at the terme of Whitsunday nixt to come And Ordaines the Shireff principall of the shyre of Angus or his deputs to put the petitioner in the possessione of the saids lands of Easterbreakie at least as much of the Lands, which belonged to her husband as will Compleatly satisfie her of the said ten Chalders of victuall free and Clear from all publict burdeins ministers stipends and other incumberances whatsomever and that at the said terme of Whitsunday, And Ordaines the tenants and possessors of the Saids Lands of Easterbreakie or other Lands which the petitioner shall be entered to the possessione of to make payment to her of the said ten Chalders of victuall for the Cropt and year Jaj vjc nyntie five betwixt the terme of mertmiss and the feast of Christenmiss Jaj vjc nyntie five, and of the like aliement of Ten Chalders of victuall yearly betwixt the said terme of mertimiss and Christenmiss each year dureing the lifetime of the petitioner, And the said […] Ogilvie of Newgraige her husband And ordaines letters of horning to be direct heiron both against the representatives of the said Superior and against the tennants of the saids lands of Easterbreakie all to be particularly named in the horning and others needfull to be direct heiron in forme as effeirs and the horning to be on fiftein dayes. And ther being a petitione given in be the younger Cheldrein of the said James Carnegie of Braikie and the Laird of Phinhaven ther tutor by way of answer to the Ladies petitione Shewing That quher the Lady Newgrange haveing presented a sumar petition to the saids Lords Representing that she was in a desolat Conditione And that Breakies Childrein Did possess twentie two Chalders of victuall belonging to Newgrange be vertue of the right of his escheat And Therfore Craving that ten Chalders of victuall might be assigned to the2 her3 for ane aliement This petitione being appointed to be seen and answered by the Creditors of Newgrange and no answers being offered ther Lordships takeing all for granted that was represented have appointed one Thousand merks to be presently payed by the petitioners and ten Chalders of victuall yearly dureing new granges life It is now humbly Represented to the saids Lords primo that ther residence being at a distance they never hade the least intimatione or nottice of the Ladies applicatione till ther Lordships hade determined it, And the petitioners Doe humbly Conceave that no determinatione can in justice pass against any party without Citatione especially against parties whose residance is far distant and against pupills and orphans Their Lordships have some times dispensed with the formallity of Lybells especially against such as receid on the place, But the Least that Could be allowed hade bein ane authentick Copie of the Complaint delivered be the persuars to the partie concerned, Secundo It was unjustly and falsely represented that the subject intromitted with by the petitioners did amount to twentie two Chalders to the petitioners For evinceing to ther Lordships the Calumney of this alledgence all the favors the petitioners desyre is that the said twelue Chalders of victuall may first and preferrably belong to the petitioners and then ther petitioners shall not gruge that the Compleaners take what farder can be found But the plaine truth is ther are some reall debts preferrable to the Escheat which with the publict burdeins being deduced, Ther will not remaine Eight Chalders of victuall in the petitioners possessione wherby ther Lordships might perceive the ingenuity of the Complainer and how litle is to be taken upon her trust Secundo4 the petitioners farder begg Libertie to alledge that ther is no Latitude for modifieing of any aliement in this case, Because the petitioners possessione is be vertue of a decreet of the Lords, preferring ther deceast father to the Lands which they possess and quherof the rents are Liquidate in that Decreet Therfore the petitioners portione being be vertue of a legall right sustained and Declared by the ordinary Judge, Ther Lordships Cannot Justly burdein or restrict the petitioners right or possessione, For albeit the necessity of speedy Dispatch of procesces of aliement be such as can admitt of no delay, And Therfore ther Lordshipes have in some caises sustained such actiones, yet such aliements have only been sustained as are founded upon Law or some Claime in the persone of the Complainer as aliements of airs against Lyfrenters, Ward vassells against superiors and sometimes unprovyded Cheldrein against the representatives of their parents, But it was never heard that a debitor whose estate was exhausted by Legall dilligences, or burdeined with lyfrent escheats that he or his wife or familly hade right to Crave ane aliement of a Creditor or superior bruiking by the vassells escheat It hath been often reckoned a groundless simulatione to annull a gift that the rebell or his wife or any of his familly did continue to possess, But it wes never thought that any Judicator had latitud to burdein ane Escheat with ane aliement in favors of the rebell or his familly, and What ever may be alledged that the escheat is a penall and no favorable Casuality yet primo It is a Casuality which the Law hath favorable possessione in the petitioners For their father haveing Declared that escheat, They have no other fond of subsistance or provisione then the said possessione wherof if they were deprived they had a nothing at all Tertio what ever, the Creditors of Newgrange can alledge he cannot Justly Complaine Beacus without any regaird to the Escheat his Estat is much more then exhausted by reall and true debts and its falsely represented that these debts were Cautionries for Newgrange his sone, For the dilligences are all done upon his oun proper debts, and it were not agreeable to law, That the Casuality of Escheat should be taken from the superior and misrepresentatives and applyed to the rebell to the exclusione of his Creditors, The only hardship of the escheat, Is that the Creditors are excluded by it In which the petitioners improvyded and otherwayes destitute Cheldrein are very favorable, But neither law nor equitie can permitt that the escheat shall be keept up to the exclusione of the Creditors for sustaineing the rebell and his familly, To the prejudice also of the superiors legall right and Casuality, And Therfore Humbly Craveing the saids Lords to Consider the premises and especially that the wholl value of the escheat exceids not Eight Chalders of victuall yearly after Deductione of preferrable debts and burdeins and that this small Casuality is the only mean of the petitioners subsistance and aliement and that ther is neither Law nor example for burdening a superiors Casuality of Escheat Declared with any aliement in favors of the rebells his wife and familly And Therfore to Recall the former interloquitor, and if any deficulty remaine, That their Lordships would tear them upon the premises as the petitione bears The saids Lords haveing upon the seventh day of march instant heard the said petitione read in ther presence They Declared they would hear the petitioners and ther Lawiers, and likewayes the Lady NewGrange5 and her Lawiers in the forsaid matter And appointed then to be ready for that effect And the saids Lords haveing this day Called for the parties and their Lawiers Compeired Mr Mongo Carnegie advocat as procurator for the Lady Newgrange And sicklike Compeired Mr Hew Dalrymple and Mr William Aikman advocats as procurators for the said Childrein of James Carnegie of Braikie and ther tutor The advocats for both parties being fully heard, and the Councill haveing Considered the debate They Adhere to the for[mer] [inte]rloquitor pronunced in the said Lady NewGraing6 7 favors unles the rent of the said estate of Easterbreakie be within the soumes or Chalders of victuall Decerned for in the soume and if the rent be within the soumes of money or quantities of victuall Decerned for them the saids Lords Doe heirby Modifie the rent of the said haill estate for aliement to the persewer and her familly, and ordaines her to be put in possessione of the same and to be payed of the rents of the said haill estate in maner as is appoynted for the soumes of money and victuall Contained in the former interloquitor, And Ordaines executione to pass heiron as in the said former interloquitor.

1. NRS, PC2/25, 203v-207r.

2. The word ‘petitioners’ scored out here.

3. Insertion.

4. Sic.

5. The letters ‘New’ are an insertion.

6. The letters ‘New’ are an insertion.

7. Illegible word, resulting from damage to page.

1. NRS, PC2/25, 203v-207r.

2. The word ‘petitioners’ scored out here.

3. Insertion.

4. Sic.

5. The letters ‘New’ are an insertion.

6. The letters ‘New’ are an insertion.

7. Illegible word, resulting from damage to page.