Act, 17 March 1704, Edinburgh

Procedure, 19 December 1704, Edinburgh

Edinburgh the 17th March 17041

D1704/3/42

Act

Act Infavours off John Oswald etc and others

Anent The petition given in and presented To the Lords of Her Majesties privie Councill By John Oswald sone to Sir James Oswald of Fingletoun and Sir Alexander Gilmure of Craigmylner his uncle for his Intrest Shewing That where he the said John Oswald upon the Decease of his father The said Sir James was left wholy destitut and soe cast upon the cair and keeping of the said Sir Alexander his mothers brother Lykeas The petitioner being the only Child of that marriadge is also competently and weell provyded in the soume of Fourty Thousand merks Wherof Fourteen Thousand is still in the hands of his said Uncle as the petitioners mothers portion Which nevertheless in caice of his failzie is to goe inteirly to the petitioenrs fathers Children of his former marriage But tho the petitioner be thus provyded and that his brother Doctor Oswald be also his Tutor nominat Yet the provision for the petitioners aliment is still unsettled The Doctor Choyseing raither to be passive and non other Except his said Uncle appearing for the petitioner And seeing that all the petitioner cravs is to have a Compitent aliment authorized out of his owen Which he humbly conceaved He being now about seven years of age, may be the annualrent of the said Fourthteen Thousand merks due to the petitioner by his Uncle which will be about five hundered pound scots yearly untill he attain to the age of Ten years Compleat and from that time till his age of Fourthteen compleat ane Hundered pound scotts may be added making Six hundered pound yearly and that for bed, board cloathing and all ordinary necessaries And Therfore Creaving their Lordships To authorize the forsaid aliment to the petitioner for the years past viz from the seventh day of March 1701, and in tyme comeing there being noe Contradicter or any other haveing intrest by your Lordships authoritie allenerly craved for his said Tuttor and Freinds their Exoneration As the said petition bears Which petition being upon the Fifthteen of March instant read in presence of the saids Lords of privie Councill They appointed the samen to bee seen and answered nixt Councill day according to which delyverance Doctor George Oswald haveing seen the said petition he returned the same with the answers followeing Mentioning That where Sir Alexander in his petition represents That the said John Oswald was left destitute and had noe bodey to take cair off him but his Uncle and that haveing ane Estate of Fourty Thousand merks wherof Fourthteen was in Sir Alexanders owen hands it was but reasonable That ane aliment should be modefied of five hundered pounds scots yearly from the time the said John entred the said Sir Alexanders house untill his age of Ten years and of Sex Hundered pound Scotts yearly from Ten years Dureing his pupillarity To which it is answered for the said John Oswald and Doctor Oswald his brother and sole tuttor testamentar That the petition is of very Extraordinary nature for the reasons followeing viz 1mo albeit Alexander represents That the pupill was left without any cair the conterar is very nottour for as his father did settle a good portion on him soe in his Testament He Nominats the Doctor his Tuttor and after the fathers decease at Sir Alexander Gilmours Entreaty he gave him the custodie of the Child Secundo The petition is very irregular and illegall – it being the certain principles of Law That a pupill can intent noe action apply to noe Judicature yea doe noething seeing all the power boeth of his person and goods is altogither lodged in his Tuttor and whatsomever Doctor Oswald the Tutter might have done Either by proces or petition for obtaining the liquidation of ane aliment There was noe place for any other persone to make application for ane aliment But especially Sir Alexander had less reason then any man Considering he had a fond of the pupill of Fourthteen Thousand merks in his owen hands and that the Doctor had never Carved3 annualrents therof soe that it was time enough for Sir Alexander when the Tutors Expected the Soumes from him due to the pupill to have craved allowance and Compensatione for his aliment Tertio The Quantitie of Five And sex hundered pounds for the respective years mentioned in the petition Is not only great But irregular in craving the same to be modified to him for the Child under the years of Ten Cannot be thought to spend Five Hundered pound yearly in the Countrie in his Uncles house And when he is put to Schoolls The Tutter will place him with the beast Masters and make the most advantagious and Convenient argument’s for him possible for Sir Alexander most not think That albeit the Tutter Did Committ the pupill to his Cair for atime that therfor he should have the sole keeping of him till the end of his pupillarity For the Tuttor boeth in Conscience and Law is obleidged and will soe provide for his pupills aliment and Educatione as may be most for this Conveniencie and Circumstances And Therefore Creaving their Lordships To consider what is above represented with the hazerd that tutors ly under of haveing every step of their administratione quarrelled and iff their Lordships will take them the modificatione of any aliment To doe in such a manner as the Tutter may be fully Exonoured But allways to have the Tutoria potestas safe That the tutor may place the pupill in what place he thinks most for his Advantage As the saids answers also bears The Lords of Her Majesties privie Councill Haveing upon the day and date of thir presents Considered the above petition Giveing into them By John Oswald son to Sir James Oswald off Fingletoun and Sir Alexander Gilmure of Craigmilner his Uncle for his intrest Togither with answers therto By Doctor George Oswald of Prestoun And the samen being read in their presence The saids Lords Doe heirby modefie and Grant ane aliment offeiring to the annualrent of the soume off Fourthteen Thousand merks For the said John Oswald To be payed yearly be equall portiones Commencing and begining at the seventh day of March Jaj vic and one years and that for the said John Oswalds aliment and mentaining him at bed board, schoolls and other necessaries to be waived upon him untill his age of Ten years compleat And the saids Lords Modefies and Ordains The soume of ane Hundereth pound scots of additionall and further aliment To be payed for the intertainment education and other necessarries as said is To be waired out and bestowed upon the said John Oswald untill his age of Fourthteen years compleat And ordains the said Doctor Goerge Oswald Tuttor nominat to the said John To make payment off the saids respective aliments accordingly To the said Sir Alexander Gilmure dureing the said John Oswald his residence and aboad with him

Edinburgh the 17th March 17041

D1704/3/42

Act

Act Infavours off John Oswald etc and others

Anent The petition given in and presented To the Lords of Her Majesties privie Councill By John Oswald sone to Sir James Oswald of Fingletoun and Sir Alexander Gilmure of Craigmylner his uncle for his Intrest Shewing That where he the said John Oswald upon the Decease of his father The said Sir James was left wholy destitut and soe cast upon the cair and keeping of the said Sir Alexander his mothers brother Lykeas The petitioner being the only Child of that marriadge is also competently and weell provyded in the soume of Fourty Thousand merks Wherof Fourteen Thousand is still in the hands of his said Uncle as the petitioners mothers portion Which nevertheless in caice of his failzie is to goe inteirly to the petitioenrs fathers Children of his former marriage But tho the petitioner be thus provyded and that his brother Doctor Oswald be also his Tutor nominat Yet the provision for the petitioners aliment is still unsettled The Doctor Choyseing raither to be passive and non other Except his said Uncle appearing for the petitioner And seeing that all the petitioner cravs is to have a Compitent aliment authorized out of his owen Which he humbly conceaved He being now about seven years of age, may be the annualrent of the said Fourthteen Thousand merks due to the petitioner by his Uncle which will be about five hundered pound scots yearly untill he attain to the age of Ten years Compleat and from that time till his age of Fourthteen compleat ane Hundered pound scotts may be added making Six hundered pound yearly and that for bed, board cloathing and all ordinary necessaries And Therfore Creaving their Lordships To authorize the forsaid aliment to the petitioner for the years past viz from the seventh day of March 1701, and in tyme comeing there being noe Contradicter or any other haveing intrest by your Lordships authoritie allenerly craved for his said Tuttor and Freinds their Exoneration As the said petition bears Which petition being upon the Fifthteen of March instant read in presence of the saids Lords of privie Councill They appointed the samen to bee seen and answered nixt Councill day according to which delyverance Doctor George Oswald haveing seen the said petition he returned the same with the answers followeing Mentioning That where Sir Alexander in his petition represents That the said John Oswald was left destitute and had noe bodey to take cair off him but his Uncle and that haveing ane Estate of Fourty Thousand merks wherof Fourthteen was in Sir Alexanders owen hands it was but reasonable That ane aliment should be modefied of five hundered pounds scots yearly from the time the said John entred the said Sir Alexanders house untill his age of Ten years and of Sex Hundered pound Scotts yearly from Ten years Dureing his pupillarity To which it is answered for the said John Oswald and Doctor Oswald his brother and sole tuttor testamentar That the petition is of very Extraordinary nature for the reasons followeing viz 1mo albeit Alexander represents That the pupill was left without any cair the conterar is very nottour for as his father did settle a good portion on him soe in his Testament He Nominats the Doctor his Tuttor and after the fathers decease at Sir Alexander Gilmours Entreaty he gave him the custodie of the Child Secundo The petition is very irregular and illegall – it being the certain principles of Law That a pupill can intent noe action apply to noe Judicature yea doe noething seeing all the power boeth of his person and goods is altogither lodged in his Tuttor and whatsomever Doctor Oswald the Tutter might have done Either by proces or petition for obtaining the liquidation of ane aliment There was noe place for any other persone to make application for ane aliment But especially Sir Alexander had less reason then any man Considering he had a fond of the pupill of Fourthteen Thousand merks in his owen hands and that the Doctor had never Carved3 annualrents therof soe that it was time enough for Sir Alexander when the Tutors Expected the Soumes from him due to the pupill to have craved allowance and Compensatione for his aliment Tertio The Quantitie of Five And sex hundered pounds for the respective years mentioned in the petition Is not only great But irregular in craving the same to be modified to him for the Child under the years of Ten Cannot be thought to spend Five Hundered pound yearly in the Countrie in his Uncles house And when he is put to Schoolls The Tutter will place him with the beast Masters and make the most advantagious and Convenient argument’s for him possible for Sir Alexander most not think That albeit the Tutter Did Committ the pupill to his Cair for atime that therfor he should have the sole keeping of him till the end of his pupillarity For the Tuttor boeth in Conscience and Law is obleidged and will soe provide for his pupills aliment and Educatione as may be most for this Conveniencie and Circumstances And Therefore Creaving their Lordships To consider what is above represented with the hazerd that tutors ly under of haveing every step of their administratione quarrelled and iff their Lordships will take them the modificatione of any aliment To doe in such a manner as the Tutter may be fully Exonoured But allways to have the Tutoria potestas safe That the tutor may place the pupill in what place he thinks most for his Advantage As the saids answers also bears The Lords of Her Majesties privie Councill Haveing upon the day and date of thir presents Considered the above petition Giveing into them By John Oswald son to Sir James Oswald off Fingletoun and Sir Alexander Gilmure of Craigmilner his Uncle for his intrest Togither with answers therto By Doctor George Oswald of Prestoun And the samen being read in their presence The saids Lords Doe heirby modefie and Grant ane aliment offeiring to the annualrent of the soume off Fourthteen Thousand merks For the said John Oswald To be payed yearly be equall portiones Commencing and begining at the seventh day of March Jaj vic and one years and that for the said John Oswalds aliment and mentaining him at bed board, schoolls and other necessaries to be waived upon him untill his age of Ten years compleat And the saids Lords Modefies and Ordains The soume of ane Hundereth pound scots of additionall and further aliment To be payed for the intertainment education and other necessarries as said is To be waired out and bestowed upon the said John Oswald untill his age of Fourthteen years compleat And ordains the said Doctor Goerge Oswald Tuttor nominat to the said John To make payment off the saids respective aliments accordingly To the said Sir Alexander Gilmure dureing the said John Oswald his residence and aboad with him

1. NRS, PC2/28, 284r. No sederunt recorded, although begins with the note ‘ut in sederunt’

2. NRS, PC2/28, 284r.

3. Sic.

1. NRS, PC2/28, 284r. No sederunt recorded, although begins with the note ‘ut in sederunt’.

2. NRS, PC2/28, 284r.

3. Sic.