Act, 12 March 1705, Edinburgh

Edinburgh 27th February 1705

D1705/2/12

D1705/2/12¹

Act

Act in favours of the Lady Bredisholme younger

Anent the petition given in and presented to the Lords of her Majesties privie Councill, By Rose Muirhead Lady Braidisholme younger, Humbly Shewing, That where her Deceast Husband did apply to their Lordships, representing the hard Circumstances, his Fathers unkyndness had brought him under, and the Claims he had to his Fathers Estate, both because of the naturall duty to provyde for him and his Children, and because of his said Fathers promise, befor and since his marriage, and also in respect of a Disposition made of the estate of Breaddisholme, made to himselfe in fee, To all which was added, That his said Father made him lay out considerable Soumes upon a second Brother, and after all had called her said Husband and her to this Kingdome with hopes of a better Intertainment, Upon which grounds the said James Muirhead of Bredisholme elder being conveened, and all pains taken to procure justice at his hands, without the necessitie of a Sentence, but in vain, Their Lordships did in conclusion remitt such actions as her said Husband had againest his said Father to be discust Summarly befor the Lords of Session, And in the mean tyme Modified Fyftie pound sterling Which their Lordships Ordained the said James Muirhead elder to pay to her said Husband, for carrying on the processes, But in a few weeks after the sentence, her Husband overcome with Suffering Contracted a heavie Sickness, wherof he dyed in a few dayes, having beforhand assigned to her, generally all action competent to him, And after his Decease upon ane application in her name as having right in manner forsaid, Their Lordships did must justly transfer the right of the forsaid Summ to her by ane Act and Decreit, But to her great misfortune The said James Muirhead of Bredisholme persisting to harrass her, and her Children, Did give in a bill of Suspension befor the Lords of Session pretending double distresses, Viz: at her instance upon the one pairt, and at the instance of his son in Law, as having arreasted in his hands, upon pretence of some money laid out upon her Husbands funeralls, and of a debt due by her Husband to him, Wherupon he had intended action against her, upon the Second pairt, and at the instance of the apothecary for Drugs to her Husband upon deathbed and about the bodie after his Decease on the third pairt, which Suspension is expede, wherin she plainly perceives, that there was nothing else intended, but to fright and amuse her who is a Stranger, and to depryve her of the means to carry on her proces, for Subsisting her, and her Family, and therby to disapoynt the effect of their Lordships justice and Compassion, These unhappy Circumstances puts her once more, under the necessity to apply to their Lordships, that some thing might be modified for aliment and Subsistance to her, and her Children, in such a maner as might be Secure from Such Dillingence and devises, which She hopes will appear most reasonable when their Lordships Considers her pittifull Condition, her very cloaths being detained for her Husbands Chamber Rent, whilest upon the other hand, her Father in Law, who by all the duties in Law ought to provyded for his Son, and now for her, does not only refuse her Support, but has emendicat the forsaids arreistments, willfully to prevent her insisting, for recovering of her just right, for it is but too obvious, that these pretended Claimes againest her, ought rather to affect Broddisholme himself, Seeing She neither is nor can be ane representative of her Husband, and that the expensses of funeralls, are a duty in nature upon Bredisholme who had depryved his Son of all means of Livlyhood during his Lyftyme, Craving therfore it might please their Lordships to Decern the said James Muirhead of Breadisholme To make payment to her of such aliment, as their Lordships Shall determine, as the said petition bears, Which petition being upno the twentie Second of February J^aj vii^c and fyve years, Read in presence of the saids Lords, They appoynted and Ordained the Samen to be seen and answered next Councill day by Bredisholme elder peremptorie, Wherunto the said James Muirhead gave in the answers following, The Deceast James Muirhead and Rose Fincham his Spouse did apply to their Lordships for ane aliment upon the head that he was apparent Air, but that appearing to be without the least ground, Shaddow, or pretence in Law, that ane apparent air married portioned and settled out of his Fathers Family could recurr and force the Father to aliment him, they forced to found on this alleadgence, that they had Severall obligatory letters and rights againest Bredisholmes estate, upon which in the mean tyme they Craved ane aliment might be Decerned, as the alleadgance was false in fact, and Calumnious, So their Lordships after advyseing of bill and answers, hearing of pairties procurators, were Convinced that the matter was purely civill, And therfore remitted the same to be discust summarly before the Lords of Session, and in the mean tyme appoynted Fyftie pound Sterling to be payed to him, This Summ being payable at the first of January last, and he dyeing befor the terme of payment upon a petition the same was transformed and Ordained to be payed to his Relict against Candlemess also last, and which Summ being arreisted in Bredishholmes hands, he was necessitat to Suspend for his own Security upon double distress befor the lords of Session, and which Suspension was expeded after two reports in presence, Although their Lordships did remitt the proces of aliment to be discussed befor the Lords of Session Summarly, yet the deceast James Muirhead nor his relict never So much as raised a Summonds for that effect, knowing perfectly their pretence therto to be groundless, And Bredisholme to Shew that they had no right, did raise and execute Summonds of reduction first againest him, and then againest this petitioner, his Relict, and Representatives of all pretended letters, Contracts, or Rights they alleadged they had upon his estate with a speciall Declarator, wherin that the said Bredisholme was nowayes obliedged to aliment them or their Family, upon the relevant grounds therin lybelled, as the Symmonds execute, lybelled, called, and Depending heirwith produced testifies, The Said Rose Finchan (to forbear any of her expressions and carriage to Bredissholme) has presented another bill to their Lordships, which is wholly irregular Craving ane aliment to be Decerned to her, for Seeing their Lordships have alreadie remitted the proces at the instance of her Husband and her, to the Lords of Session, as being a matter purely civill, wherupon there is ane act extracted by them, She ought not to have given their Lordships this trouble, but to have proceeded in the termes of the act, and Remitt, for certainly when their Lordships found that their pretensions to ane aliment were purely Civill, and for that end remitted to the Session, Its certain that his Relicts pretences, which depend on his, must also be only Competent befor the Lords of Session, And therfore its humbly answered to the Lords of privie Councill for Bredisholme, Primo, That he is not in Toun, and therfore he could not be obliedged to answer to a Summar petition, for however favourable actions of aliment are, yet the Law of self Defence prevaills over all, and therfore he cannot be brought into judgment without a lawfull Citation upon a competent tyme, that he may be advertised to Compear, and inform his Lawiers upon proper defences and this pursuer having neglected the remedy appoynted her by their Lordships, She ought not to be anywayes encouradged in this irregular forme, Bredisholme adhearing to the former defence, that he was not lawfully Cited, makes the Second defence againest this irregular petition, that the case of her aliment, as depending upon the pretensions of her Husband, was already remitted upon a full hearing by their Lordships to the Lords of Session, as dipping upon production of Severall missive letters, and other rights, so that her applying again to their Lordships in this irregular Sort is plainly againest ane Interlocutor upon full hearing And the Act extracted by themselves, which cutts her off from pretence of any aliment or Subsistance, befor ane Court by the Lords of Session, to whom their Lordships did remitt the Samen, Tertio It is now his alibi pendens for Bredisholme, that the persuer did not insist befor the Session for any pretended aliment, Notwithstanding of the Act of parliament, which did endue her action with a Summar dispatch, but their Lordships did lykewise Recommend the Same to be Summarly discust by their Remitt, He for freeing himselfe of vexatious uncertain and expensive attendance (wherof hitherto he has had the sad experience) did with regaird to their Lordships remitt, and in the Termes therof raise and execute a lybelled Summonds and Declarator againest her, and the Representatives of her deceast Husband, befor the Lords of Session to hear it Declaired, that She had no right or pretence to ane aliment or Subsistance out of Bredisholmes estate, and it being therby Depending before the Lords, long prior to this application made to their Lordships, it is humbly offered as a Defence, that it must be there discussed, The answers then to the bill are Shortly these, primo That Bredisholme was not the Town, nor lawfully Cited, and therfore cannot be obliedged to answer to a petition wherof he knowes nothing Secundo this very cause was already remitted by their Lordships to the Lords of Session, And therfore it was most preposterous to apply to their Lordships in this maner when the cause was already remitted by them to the Judge Ordinary to whom only they most apply, Tertio, The matter being also made pendent by Bredisholme againest this very persuer upon the Same Claime, by a lybelled Summonds of Declarator, not only lybelled and execute but also tabled, and ane advocat Compearing to take out the proces, as the same dated the nynteenth day of January last testifies, It is humbly hoped and Contended, that the said irregular bill ought to be rejected, and she left to persue any pretensions she has to any aliment or subsistance (which are absolutely calumnious and irregular) befor the Lords of Session, where she shall have ane answer, if she ever intent any such proces, as the said answers bears, The Lords of her Majesties privie Councill having Considered the above petition given in to them, by Rose Muirhead Lady Bredisholme younger, and the samen with answers therto by James Muirhead of Bredisholme elder being read in their presence, The saids Lords Doe heirby Grant to the petitioner the soume of Fyftie pound Sterling for her aliment, and appoynts and Ordains the said James Muirhead of Bredisholme elder to make payment therof to the petitioner accordingly and upon payment appoynts and Ordains the petitioner to Renounce and Discharge all right and Interest that She has or can pretend to the Fyftie pound Sterling granted to her Husband, and the other Fyftie pound Sterling granted to herselfe, and which Fyfty pound Sterling of aliment forsaid, The said Rose Muirhead accepts in full of all aliment she can pretend to from the saids Lords at anie tyme hereafter, and alse the saids Lords Doe heirby Discharge the petitioner to apply to their Lordships for any furder aliment in tyme comeing, But leaves her to persue her other rights via ordinara allenerly befor the Judge competent as accords, and appoynts letters of horning under the Signet of Councill upon Fyfeteen dayes to be direct heirupon in forme as effeirs