Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the threttein day of Aprile J^aj vi^c nyntie Six yeirs

D1696/4/24

D1696/4/24¹

Decreet

Decreit Fletchers against Aberlady

Anent the petitione given in to The Lords of his majesties privie Cownsell Be Andrew Fletcher of Aberlady and Alexander Cuming of Coulter his Tutor Shewing That wher ther being a petitione given in to the saids Lords by Beatrix and Mary Fletchers Laufull doughters to the deceast Sir Andrew Fletchers of Aberlady Representing that ther father haveing died without makeing testament or appointing any provisione for them And that he died Leaveing exerce and moveables behind him Extending to about nyntein thousand punds which propper he belonged to them as executors decerned to ther father And yet that the executor was intrometted with by the tutors of Archbald Fletcher ther brother wncle to the petitioner and applyed to his wse for which they had raised a process befor the Lords of Sessione but in respect they were destitut of any Subsistance and that the proces could not so Sumarly be discust they therfore craved that the Saids Lords would modifie to ilk ane of them two hundereth merks yeirly and ordaine the petitioner his factor tutor and tenents to pay the Same at the termes therin mentioned The Desyre wherof the Saids Lords granted and ordained the petitioners and Mr William Black as factor and the tennents and possessors of Aberlady to pay to ilk ane of them the Soume of Ane Hundereth punds Scotts for aliment from Lambes Last to Whittsonday next And ane Hundereth merks to each of them at the said terme of whittsonday and Soe furth at Mertimes and whittsonday therefter by advance Dureing the dependance of the foirsaid proces Wpon which Decreit and ordinance of the Saids Lords they designe to distress the petitioners his tutor factor and tenents And therfore he humbly takes Leave to Lay befor the saids Lords the following considerationes primo the saids Beatrix and Mary Fletchers haveing in ther immoritie obtained a decreit of aliement against the deceast Archbald Fletchers of Aberlady ther brother they made applicatione to The Lords of Sessione that they would continwe the foirsaid aliment and ordaine the petitioner and his tutors to pay in the termes of ther foirsaid decreit But ther being reductione raised and the reasones debate and reported to The Lords they found that a nephew was not bound to aliment his awnts who are majors albeit he brwike ane estate as air to his Grandfather who was father to these awnts and had omitted to provide them and refwsed to modifie any aliment and assoillied the petitioner therfrom in all tyme comeing As the extract of the decreit absolvitor therwith produced doeth testifie So that this point being alreadie determined in Jure Its hoped the saids Lords will not think that any twtor is safe to pay and aliment efter his pupill is assoillied therfrom But in the next place the saids Beatrix and Mary Fletchers (That ther may be some regwrd² of pretence for what they desyre) have raised a process against the petitioner and have only craved ane aliment Dureing the Dependance As to which First the petitioner and his tutor cannot regularly be conveened in that process because by what is represented in the bill the said Beatrix and Mary Fletchers acknouledge that they are executors to ther father And that the intromissione was by the deceast Archbald Fletchers tutors and curators so that in caise the intrometters are only conveenable And albeit they insinwat in ther bill that the executrie was applyed to ther brothers behove to whom the petitioner is Air that is absolutely denyed And tho it were trwe the tutors nor curators have never yet compted And if ther be any executrie they are the only persones lyable But The trweth is ther is no executrie the Same being farr exhausted by debts as is knowen to Saltoune who was tutor and Blackbarrony who was curator to the petitioners father and wncle And the trwe designe of raiseing this process is only to perpetuat ane aliment upon the petitioner contrair to Law without the Least designe of prosecuteing it Secundo The Saids Lords are never in wse to modifie aliments in absence without calling the pairtie from whom the aliment is craved But in this caise altho the petitioner be minor he nor his tutor were not cited or ever knew therof till the interloquitor was Subscribed Tertio It is not ordinary for the saids Lords to modifie aliments Dureing the dependance of process, that being ordinarly done by the Lords befor whom the process depends But if ever Done by the saids Lords or The Lords of Sessione the persones to whom the aliment is granted are ordained to find cautione to refownd in caise ther be not als much found Dwe at the event of the process as will compense what is advanced And if the Saids Lords notwithstanding of what is above represented will ordaine the petitioner to pay the foirsaid aliment he is content to doe it upon Blackbarrony and Saltowne or aither of them ther becoming cawtione to refownd in maner foirsaid And reasoneably this cannot be refwsed by them for besyde that the one is wncle and the other Coussine to the saids Beatrix and Mary Fletchers and gave in the petitione for them they are the only persones who intrometted with the executrie, for which they have never yet compted and best know the conditione therof And ther finding cautione will exoner the petitioners tutor but if they refwse it will be ane evidence that nothing will be found dwe by that proces And if noething be Dwe it is most wnreasoneable that the petitioners Should be lyable especiallie when he is assoillzed in Jure by a decreit in maner foirsaid And therfore humbly craveing the saids Lords to consider the premisses and Stopp extracting of the foirsaid decreit or if the Same be extracted to sist executione till aither the saids Beatrix and Mary Fletchers find cautione in maner abovementioned or the petitioners and his tutor be alloued a heareing in ther own presence As the said petitione bears Since printing of this petitione the said Mr William Black as factor hes gotten a charge of horning to pay two hundered pund Scotts to the said Beatrix and Mary Fletchers for ther aliment Since Lambes Last which is more as half a yeir befor comenceing of ther pretendit process And for that half yeirs aliment Aberlady is assoillzed by the Decreit of the Lords which is dated in January Last So that albeit the Saids Lords Should ordaine ane aliment to be payed to them in tyme comeing upon ther finding cautione in maner foirsaid yet as to termes preceeding the comenceing of the process it is res hacteuus Judicata Besyde Mr William Black hes no pairt of the rents in his hands and he haveing only out of freindshipe accepted ane factorie from the tutor Dureing his absence abroad It is hard that he Should be decerned or charged with horning to pay when he hes so Litle concerne in the mater In respect of all which Its hoped the saids Lords will aither allow a heareing in ther own presence or appoint a comittie to consider the petitioners defensses in Law which was never denyed to any farr less to a minor The Saids Lords of his majesties privie Counsell haveing considered the above petitione given in to them be the saids Andrew Fletcher of Aberlady and Alexander Cuming of Coulter Against Beatrix and Mary Fletchers and the advocats for both pairties being called Compeared William Black as Advocat for the saids petitioners who are the Suspenders And sicklyke Compeared Mr John Frank as Advocat for the charger And the saids Advocats being fullie heard The Lords of his Majesties privie Counsell Doe heirby adhere to the Decreit charged upon pronunced by their Lordships And finds the Letters raised upon the said Decreit orderly proceeded And ordaines the Same to take effect And to be pwtt to furder executione Conforme to the tennor of the said Decreit charged upon And repells the reasones contained in the Bill