Decreet, 18 January 1705, Edinburgh

Act, 12 March 1705, Edinburgh

Edinburgh 18th January 1705

D1705/1/101

Decreet

Decreit in favours of the Viscount of Arbuthnet, appoynting the custody of his Brother and Sisters to belong to him

Anent the petition given in and presented to the Lords of her Majesties privie Councill, by Jean Countess of Southerland, Humbly Shewing, That where the Deceast Viscountess of Arbuthnet, her Daugher in prosecution of her maternall care and affection She had to her Children, did upon her deathbed, most Seriously Recommend to her Dearest Lord the Earle of Southerland, and her, her parents to take upon them the Custody and education of her Children, and to See them brought up in the fear of God, and educat according to their quality, In prosecution of which last will and desyre of her said Daughter by aggreement betwixt her deceast Lord on the ane pairt and Alexander Arbuthnet of Knox late Tutor to the present Viscount of Arbuthnet as principall and Sir Thomas Burnet of Leyes as Cautioner on the other pairt, It was aggreed that they Should have the custody of the Viscount and his Brother and Sisters in order to their breeding and education, Notwithstanding wherof they were necessitate to be at the expenses to apply to their Lordships for their Custody, And upon the fourth of February Jaj vic nyntie Six years, Their Lordships by there act ordained the Tutor to delyver up the Viscount to her said deceast Husband, And Ordained the Custody of the other Children to belong to and continue with them, with whom they then were, and Decerned the Viscount and his Tutor to pay to her deceast Lord Two Thousand Fyve Hundereth Merks yearly for the saids younger Children, their aliment at two termes in the year per advance, The Viscount her Grandson immediatly after expyreing of the years of his pupillarity, was induced by some of his Fathers relations to leave his Grandfather, and her, who had been so kynd to him, And Instrumentall in the preservation of his fortune, and estate, But his younger Brother and Sisters continue yet with her, who at least Master John Arbuthnet being about twelve or thirteen, and Lady Ann about fyfeteen or Sixteen years of age, and at all Schoolls needfull the aliment formerly allowed them being but Fyve Hundered merks per peice, was not able to defray the charge and expences of their education, and intertainment at bed boord and Cloaths etc And wheras their former act allowed only the Custody to her dearest Lord, and least now after there Grandfathers death their Brother the Viscount and his Relations on the Fathersyde (contrary to the Saids Children their inclinations) Should indeavour to deprive her of the Custody of Master John, and Lady Mary, and Margaret Arbuthnets the three younger Children who are within the years of pupillarity, and of the oversight of their education and breeding formerly allowed by2 their Lordships said act, and which was left her as Legacy by her said deceast Daughter their Mother, and now was intended to be taken from her, and they Sent to Arbuthnet where it can not be expected they would have that education and instruction they would have in this place, And therfore Craveing their Lordships to consider her said Grandchildrens Circumstances and condition, and that her only design, was to See them virtously brought up in the fear of the Lord, in prosecution of her Daughters earnest and positive desyre, Therfore to Ordaine the Custody of the Saids three younger Children Viz Master John, Ladyes Mary and Margaret Arbuthnets to belong to and continue with her, who was only their Surviveing parent, and to Decern and Ordain the Viscount their Brother to make payment to her of One thousand six hundered merks yearly for the aliment, and intertainment of the Saids Master John Lady Ann, in bed board cloaths etc and of one thousand Merks for the other two younger Children being Fyve hundered merks per peice, Conforme to the former act, as the said petition bears, Which petition being being upon the twentie Second day of Apryle Jaj vic and three years, Read in presence of the Saids Lords They Ordained Master John, Ladyes Mary and Margaret Arbuthnets Children to the deceast Viscountess of Arbuthnet to continue and remain in the petitioners Custodie till further orders, Therafter the said petition being again moved in presence of the saids Lords, and they haveing upon the twentieth of September Jaj vic and three years Considered the Samen, Together with ane act of Councill in favours of the Earle of Southerland anent the Custody and aliment of the deceast Viscountess of Arbuthnets Children, and the same being read in their presence His Grace and the saids Lords Doe heirby Ordaine the custody of Master John, Ladyes Mary and Margaret Arbuthnetts Children to the deceast Viscountess of Arbuthnet To belong to and continue with the petitioner, untill the first Councill day of November nixt to come, And then appoynts both pairties to be heard theranent, and in the mean tyme Decerns and Ordaines the Viscount of Arbuthnet their Brothers to make payment of halfe ane years aliment to the petitioner for the said Children upon her receipt, which is heirby Declaired to be sufficient, and betwixt and the Councill day forsaid to See and answer the said petition, Accordingly The Said Viscount of Arbuthnett having Seen the Said petition, he gave in a petition by way of answer therto Humbly Shewing That the Countess of Southerland, his Grandmother, in her petition, acknowledges that the Custody of his younger Brother and Sisters, was committed only to the late Earle of Southerland, and each of them had Fyve Hundereth Merks of yearly aliment from their petitioner, and one of them was past pupillarity, as the rest would Shortly be in capacity to choise Curators, Notwithstanding wherof her Ladyship was pleased to Crave not only the custody and education of their persons, But lykewayes Six hundered merks more yearly (being in all eighth hundered merks to each) for master John and Lady Ann, etc. In answer wherunto, the honour and respect which he did, bear to My Lady his Grandmother, did restrict him from propalling any more then some few of the grounds for which the desyre of the petition ought to be refused, and that informative, it not being competent to trouble his Grace and Lordships with determinations of that kynd, especiallie without a proces, For in the first place, as to the Custody my Lady hath no right therunto, Seeing the late Earle her Husband (who had the same by condescendance with Knox the Tutor) being to his regrate, deceased, the custody by Law, recurrs to the Tutor who concurrs with their petitioner, and his Brother and Sisters will be educat, as their quality and condition requyres Besydes which it was knowen by the practise both of the Councill and Session, that when Minors are about the tyme that they might come Shortly to choise Curators, they are frequently even taken from their Mothers Relations, that they might not be influenced either as to that, or in matching, Which ought to hold the rather in the present case, Because his Brother John being the nixt presumptive representative of the Family, he had a Speciall Interest, with advyce of his Friends to See to and observe his education which could not be so commodiously done by a Widdow Ladie and his Sisters depending upon him for their provisions (if he did intend to quarrell them upon the head of deathbed) Its reasonable that he and his Friends Should have Satisfaction in the maner of their breeding, which necessitats their petition to tell thus much, namely that neither his Brother, nor his Sisters (except his Brother within these three moneths) have ever been put to any publick Schools; the advantage wherof was obvious, nor were they keeped in My Ladyes Family (where they indeed would See so good order and example) but his Sisters Sometymes in the Cowgate, other tymes in Leith, and now at the Castlehill (yet still in no publick School) and his Brother at Prestonpanns etc In the nixt place, as to the additionall aliment, My Lady not having the Custody, its not due to her Ladyship, and the Children did not seek it, But further, ther are many other grounds for refuseing this demand, Such as primo, The yearly aliment to the Children at the first would never had been modified so high, (Fyve Hundereth merks a peice to Children Some in Infancy) especially considering that his Uncles and Aunts, the Viscounts his Grandfathers Children had only Three hundered merks a peice when the estate wanted some burdens which it hath none, were it not that it was then represented making their aliments the more liberall, that the excrescent Superplus, (which would be considerable in so many years) might be a fund to warrand their bonds of provision, But as in My Ladys petition, it was noticeable there was no offerr of Such ane application, so in a Lyfrentrix there was not Security for it, Secundo the precedents of his Uncles and Aunts makes it appear, that there needs no addition to his Brother and Sisters maintenance Especially Considering that Some of them are in Such Circumstances (wherewith it was needless to trouble his Grace and Lordships) that Suppose it were necessary, they could Spare a considerable allowance to be expended on the rest Tertio, It would not be thought reasonable that in the names of his Brothers and Sisters Such heavy burdens Should be imposed upon him, considering his present Circumstances, and his Grandmothers precise exactions, or that their provisions Should be thus Squandred without necessity, for tho he did resolve not to stand upon niceties of Law, in implementing his Fathers will, however legally quarrellable: yet its plain that their petitioner cannot be inclyned to extend himselfe so farr, as otherwayes, he designed, if by anticipation, The fund be wasted out of his hands, to no requisite purpose, And therfore Craveing it might please his Grace and Lordships, not only to take of their former deliverance on the Countesses bill, Ordaining Master John, Ladies Mary and Margaret Arbuthnets, to remain with her Ladyship till further orders, But lykwise to refuse the remanent desyre of the said bill, either as to the Custody, or additionall aliment, Especially Considering, that both the education and maintenance of his Brother and Sisters, will be cared for in the legall Channell effectually for their true Interest, as the said petition and answers also bears, Which petition and answers being upon the eighth day of December Jaj vic and three years Read in presence of the Saids Lords, they appoynted both pairties and their Lawiers to be ready to debate upon the matter represented in the bill and answers nixt Councill day According wherunto the Said Cause being called upon the eleventh day of January One thousand seven hundered and four years, and both pairties Lawiers being heard upon the matter represented in the said bill and answers, and removed, The Saids Lords nominated and appoynted a Committy of their own number to indeavour to Settle and aggree parties Recommended to them to meet at a certain tyme by past and Declaired three a quorum and to report, and the said committy having made no report in the said matter, The Saids Lords did upon the eighteenth day of January Jaj vic and four years Recomend to her Majesties advocat to prepare and bring in to the Councill, nixt Councill day a report in the Said proces Therafter upon the twentie fyfth day of January Jaj viic and four, Sir James Steuart her Majesties Advocat haveing made a verball report in the affair betwixt the Countess of Southerland, and the Viscount of Arbuthnet, and haveing produced ane bond granted by the Said Countess to master John Arbuthnet Second lawfull son to the deceast Robert Viscount of Arbuthnet for the soume of Fyve thousand merks Scots money payable at the first terme of Mertimess or Whitsonday after his attaining to the age of Twentie one years, Provydeing that the said Master John Arbuthnet Shall continue and remaine with the Countess, and under her Charge and oversight, untill he attaine to the age of Fyfteen years compleat, The Lords of her Majesties privie Councill appoynts the Samen to be delyvered in to the Clerks of Councill to lye in their hands, that the Viscount of Arbuthnet may free the Samen till nixt Councill day, Thereafter the Said Cause being called upon the eighth day of February last bypast, The Saids Lords Declaired they would advyse the said proces nixt Councill day, and upon the fyfteenth day of February also last bypast, the said proces being moved again in presence of the saids Lords, their Lordships delayed the advyseing therof till nixt Councill day, Therafter there being a petition given in and presented to the Lords of her Majesties privie Councill by the Countess Dowager of Southerland, and Lady Anne Arbuthnett Sister to the present Viscount of Arbuthnett and also Master John Arbuthnett, with Lady Mary and Margaret Arbuthnetts his two youngest Sisters, Humbly Shewing, That where by aggreement betwixt the deceast Earle of Southerland her Husband, and Alexander Arbuthnett of Knox late Tutor in Law to the present Viscount of Arbuthnett, the custody, oversight and education of the Children of Arbuthnett was to belong to the said Earle, which aggreement was ratified by the Lords of the privie Councill, and their aliments determined accordingly and Since the Earle of Southerlands decease She the said Countess applyed to their Lordships for the continuance of the three youngest Children, to witt Master John, and the Ladyes Mary, and Margaret Arbuthnetts with her, Master John being yet within the years of pupillarity, altho the other two be a little past theirs yet all of them, are very desyrous to Stay with her, and She humbly Craves that their Lordships would be pleased to appoynt her to have the Custody of Master John, and to augment his aliment three hundered merks more yearly which being at present but Four Hundered merks yearly and One hundered merks for his Governours fee which She had done for the last year, and halfe by runn at Whitsonday, which exhausts his aliment of Fyve hundered merks, So that there remains not one farthing in her hand to pay for his cloaths school fees, books, and all other necessaryes for his person, yet She had advanced upwards of Three hundered merks yearly, which She could instruct by the accompts She had payed for these necessaries to him which She ought to be reimbursed of by the present Viscount his Factors and Doers, Since She had offerred out of favour and kyndness to her Said Grandson, Master John Arbuthnet, that if their Lordships would continue him, in her Custody till he be Fyfteen years old compleit, and Ordain his Brother to pay for him eighth hundered merks yearly So long as he continues under her care, and in case of her death to continue the payment of it to him untill he be twentie one years compleit, Upon which She termes She was willing to give him a bond of Fyve Thousand merks payable to him at his Majority, It was therfore highly reasonable that his aliment Should be be3 augmented as Said is, that She be not burthened therewith, She could not undertake to give him Such a Soume and pay for his cloathing and other necessaries besydes, and as to the two youngest Sisters, She was willing to entertain them for the Fyve Hundered merks allowed to each of them yearly, So that they remaine under her care and Custody for three years to come, tho She be at a considerable charge more then their aliment will allow, For one of is fourteen years old, and the other is twelve, and desyres earnestly to Stay under her Care and education, And as to her the Said Lady Anne She hes and does heirby Declare that she will stay with and be under the care and oversight of the said Countess her Grandmother, But her aliment of Fyve Hundereth merks was not able to defray the expences of her bed and board, and furnish her with cloaths and other necessaries Suiteable to her age and quality, And if her Grandmothers kyndness to her had not exceeded, that of her other relations She could not have Subsisted hitherto upon so small ane allowance, and She hopes their Lordships will think it, but just and reasonable that the Viscount of Arbuthnett Should give his Brothers and Sisters the aliments, which She humbly Craves and not that the said Countess Should be burthened with any of their aliments, Since their Brother by the Law of nature, and practise of the Nation ought to maintaine them, and to pay for their education, cloaths and all necessaryes untill they be twentie one years compleat, and that he Settle portions upon them, And therfor Craving it might please his Grace and Lordships to consider the premisses with regaird to the condition of the Orphans, and not only to continue the Custody of the Said Master John, Arbuthnett, and his two youngest Sisters with her there Grandmother, who was there only Surviveing parent, but also to Ordaine the Viscount of Arbuthnet and his Factors and Chamberlands to pay to her eighth Hundered merks yearly, for Master Johns aliment And the like Soume to the Said Lady Anna, and Fyve Hundered merks yearly for each of the Two youngest Sisters at two termes of the year per advance, The additionall aliment to Commense from Mertimess last One thousand Seven hundered and three years, And to reimburse her the Soumes of money She had laid out on the accompt of Master John for all kynds of necessaryes to his person, Since Mertimess One thousand Seven hundered and two years, as the said petition bears, Which petition being upon the thirty day of August last bypast Read in presence of the saids Lords They appoynted the samen to be seen and answered nixt Councill day by the Viscount of Arbuthnet, and in the mean tyme continued the Custody of the Children with the said Lady as formerly, and upon the thirtie november last bypast the said petition being again moved in presence of the saids Lords, their Lordships allowed the samen to be seen and answered by the Viscount of Arbuthnet tuesday then nixt peremptorie and appoynted a Committie to endeavour to settle and aggree pairties in the mean tyme, and the Committie having made no report, there was ane other petition given in and presented to the Lords of her Majesties privie Councill by the Viscount of Arbuthnett Shewing That where Knox his Tutor having given the custody of himselfe his Brother and four Sisters his pupills to the Earle of Southerland their Grandfather, his Lordship made application to the right Honorable the Lords of Councill, That aliments Should be modified to them during their abode with him, And it being represented, that his Brother and Sisters were provyded on deathbed, and that therfore the aliments Should be the more liberall, especially seeing the excresence was to be applyed for his Brother and Sisters behooffe, the Councill was then pleased to modifie Fyve hundered merks yearly payable per advance for each of his Brother and Sisters extending to Two thousand Fyve Hundered merks yearlie upon their account, and besydes, eighth Hundered merks yearly for himselfe for bed and board allenerly, not including other incidents, for which his Tutor ordinarly payed upwards of One thousand merks yearly, and this was done notwithstanding they were mostly all Infants in Cradles, the eldest of them not exceeding eighth years of age, and albeit some of his Friends, for easeing him of Such a burden upon him weak fortune, offerred at the Barr to aliment his Brother and Sisters gratis, But in respect his Brother and Sisters were in effect unprovyded, and it was not doubted but that my Lord Southerland their Grandfather would have laid asyde so much yearly for their behooffe, The right honorable the then Lords of Councill were pleased to modifie the aliments at the rate and in maner abovementioned, and to convince their Lordships, that this was not only intended, but lykewise might have been made effectuall, He could instantly instruct by receipts under the late Earle and Countess of Southerlands, that they have received upwards of Twentie three thousand, Three hundereth and eightie two pound, Sixteen Shilling Scots money for Simple of aliment of himselfe Brothers and Sisters so that it was evident to their Lordships how heavy a burden hitherto that hath been upon his fortune, Notwithstanding wherof, and without mentioning any excresence for the behooffe of his Brother, and Sisters, which he most justly expected for their petitioners relieffe, who must alwayes some way or othre look to their provision, yet all he meets with now upon the death of My Lord Southerland his Grandfather, when in all reason he acclaimes the custody of his Brother and Sisters, was, that My Lady his Grandmother, gives in a petition to their Lordships, Craving not only the custody, but likewise additionall Aliments for two of them, his Sister Anne and Brother John of Three Hundered merks yearly being eighth hundered merks for each, Wherupon their Lordships upon their delyverance continued the Custodie to My Lady, and in the mean tyme allowed him to See and answer, And accordingly He did give in a Counter petition by way of answer, Craving the Custody of his Brother and Sisters, whom he alwayes was, and still is willing to educat and aliment conforme to his fortune and estate That question betwixt his Grandmother and their petitioner hath now had a long dependance, and brought him to vast Charges, having called him up heir four or fyve severall tymes from his own house, and now when he was desirous of nothing more then to live privatly at home, doing what he could to retrieve his fortune, that so he might be in the better capacity not only to aliment but lykewise provyde for his Brother and Sisters, He might justly have expected, that my Lady his Grandmother would have incouradged him in Such frugall measures, But Seeing My Lady Still insists againest him, and that former Committies named by their Lordships their Sentiments in the affair had taken no effect He was necessitat once more to mean himselfe to their Lordships, begging the honorable Councill at last to putt ane end to that affair, and Seriously consider primo How grievous it hath been to him to pay up bygone aliments, ammounting to no less then Twentie three thousand, Three Hundered and eighty two pound Sixteen Shilling Scots, and how rigid his Grandmother hath been in her exactions, haveing charged him once with horning, and arreisted his Trunk maill when he was going home (the first dilligence ever done againest him) which hath necessitat him to negotiat bills with the Bank at ane high interest for her payment, And tho now he most justly expected to have heard of some considerable excresence for the behooffe of his Brother and Sisters, which might have tended to his further ease, yet instead of that, all he hears is that My Lady was Superexpended, and addittionall aliments Craved Secundo he humbly conceives that by no Law can he be obliedged to be termely advanceing and Sending up Such considerable Soumes in name of Simple aliment to his Brother and Sisters, and he must ingenously acknowledge his Circumstances are Such, that he was not in condition to doe it, Seeing the Soumes to be termly advanced exceed the Silver rent of his whole estate, and he humbly conceives, all that in Law reason or justice could be demanded of him, was that he Should aliment his Brother and Sisters, himselfe, which he was alwayes willing to doe, and if necessary the minor himselfe, Should find Caution for that effect, and he must even beggl eave of his Grandmother to say; that tho he be neither married, nor Major himselfe yet the method he proposed for their education was as reasonable, yea more, there that which had hitherto been taken, For the Lords of Councill would be pleased to be informed, that none of his Sisters were putt to a publick School, nor yet his Brother till of late, My Lady had Sent him out to Prestonpanns, and the method My Lady had hitherto taken, was, that two of his Sisters live at the Castlehill in a Chamber there, with a Simple waiting Maid, Seldom or never going abroad, and indeed they are but naturally weak and infirm, and he beggs of their Lordships to consider, whether or not they more reasonably stay with him at Arbuthnet, where they Should have a Governess to attend them, more knowing then they ever yet had, as for his Sister Ann, who was now of age, and marriageable, She sometymes Stayes at Prestonpanns with their Aunt, and Seldom till of late with My Lady, and he appealls to their Lordships, whither or not it be more creditable for her to Stay with him, in his own Family, where She Should Stay as Mistres of all or at other tymes to visit his other relations, who are all very willing kyndly to receive and entertaine her, and whither or not by this means She may have a more favourable opportunity of a comfortable Match amongest her Friends, where She was born, then in a remote Corner, as for his Brother John, he was the nixt representative of his Family, and consequently he was obliedged to look the more narrowly to his education, and humbly proposes the Sending of him to Aberdein, with a Governour, and when he was at the Colledge, he proposed the haveing of him about him, during the Vacation, By which their Lordships might be fully convinced, that he demands nothing but what was truly reasonable, and absolutely necessary, considering the present Circumstances of his fortune which he endeavoured by all means he could to advance, and what was truly in itselfe advantageous for his Brother and Sisters themselves, for as to his fortune the advantage was most palpable, because having meall, malt etc of his own, he could Send in what was necessary to Aberdein, and So Should be much eased of the dayly advance of ready money, which truly frequently he could not have but upon Credite, And as for his Brother and Sisters themselves, the advantage was not less, for at that rate they always being near to, or about him, affection betwixt them Should be the more deeply rooted, and his Circumstances being bettered, he Should therby be the more enabled Sufficiently to provyde for them, who otherwise are unprovyded, at least their provision being granted on deathbed are reduceable, tho he never yet attempted it, Tertio His Uncles and Aunts during their whole Minority, had but four Hundered merks per peice for aliment, untill their provisions fell due and his estate at that tyme was in farr better Circumstances, for their provisions being only debts conditionall, in case of their attaining to Such, and Such ages, unto which de facto, they had all now attained So that his estate was burthened with ane hundered thousand merks upon that accompt, wherof not one sixpence was then due, and yet they rested well Satisfied with the aliments allowed them, and never to this day acclaimed any additions upon that accompt, tho these Aliments were not modified by their Father, but by paction accepted of as sufficient, and yet it was very well knowen that all4 of them were very Sufficiently educat at Aberdein, and keeped together at Schools and Colledges there to more considerable improvements in learning and otherwise, then any of his Brother or Sisters had as yet Come to, nor had the right Honorable the Lords of Councill exceed this Quota at first, but upon the prospect of ane yearly excrescence and out-lay, which was not now to be heard of, He Should not trouble their Lordships to inform, what various applications had been made to parliament, Councill, and Session, and what expences he had been putt to upon that head, only he begged leave to represent that much to their Lordships, that it was represented in parliament, that his Brother and Sisters were unprovyded, and therfore it was then Craved of the Estates of parliament, that they out of their transcendent power would modifie provisions to them, which petition was rejected, And now it Seem’s My Lady, his Grandmother would Supply that by petition alse extravigant of additionall aliment, bringing on upon his Family a burthen as heavie, viz ane Annuity of Two thousand Six hundereth merks yearly ane burthen of itselfe sufficient to Sink his weak fortune, and which upon ane other application of that nature might be augmented in behalfe of his other Two Sisters to the utter extirpation of him and his Family, for all which his Brother and Sisters are to have nothing but Simple Aliment, and that after maner, and in the method abovementioned, Upon the whole matter, he demands nothing of their Lordships, but what was absolutelie necessary for the preservation of his Family, for the absolute interest and advantage of his Brother and Sisters themselves, whom he was willing to aliment and educat to the reasonable Satisfaction of all the World, which was all that in Law, or reason could be demanded and which he with the more earnestness intreated, that he might be the further capacitated to provyde for them, And therfore Craveing it might please their Lordships to consider the premisses, and Seeing Committees hitherto had taken no effect, and what was now represented was in itselfe so reasonable, and did so nearly concern the wellfare of their petitioners Family as well as the interest and advantage of his Brother and Sisters, that their Lordships might allow him the custody of his Brother and Sisters, or otherwise if any difficulty remained, for preventing any further trouble and expensses to their petitioner, by necessary attendance to appoynt a precise day to hear both pairties by their procurators, that so the matter might come to ane finall Decision and determination, as the said petition lykewayes bears, Which petition being upon the nynth day of January instant read in presence of the saids Lords and they having Considered the Samen, they appoynted both pairties and their Lawiers to be ready to debate Teusday nixt peremptorie, And in the mean tyme recommended to the Earle of Southerland, Lord Advocat, and Lord Phesdo to endeavour to aggree pairties and the saids Lords having mett they reported Verbally, that they could not aggree pairties, Wherupon the Saids Lords did upon the Sixteenth day of January instant Declaire that they would call the cause the Countess of Southerland againest the Viscount of Arbuthnet Thursday then nixt, and appoynted both pairties and their Lawiers to be ready to debate the said day peremptorie, Therafter upon the day and date of thir presents the said proces at the instance of Jean Countess of Southerland againest Robert Viscount of Arbuthnett Being called, and the Countess Compearing at the Barr by Sir David Cunninghame and Mr David Forbes her advocats and the said Viscount Compearing also personally at the Barr, with Sir David Dalrymple, Master Alexander Maitland, and Mr William Black his advocats, and both pairties Lawiers being heard at the Batt, and removed The Lords of her Majesties privie Councill haveing Considered the debate, and petitions and ansuers hinc Inde Interloquitors therupon, and haill Steps of the forsaid proces They have appoynted and Allowed and heirby Appoynts and Allowes the said Viscount the Custody and keeping of Master John, Ladies Mary and Margaret Arbuthnots his Brother and Sisters, upon his giving bond, and finding Sufficient Caution acted in the books of privie Councill for alimenting of the saids Master John, and Ladies Mary and Margaret Arbuthnetts in bed, board, and abulziements of their bodies Sutable to their quality, and educating and training them up at Schools and Colledges as their said Quality might requyre, And appoynts and Ordaines the said Countess instantly to Cede and quyt the Custodie of the Saids Children to the Said Viscount, And have Appoynted and Ordained the Clerks of Councill to delyver up to the said Countess the bond granted by her to the said Master John Arbuthnot for the soume of Fyve thousand merks now lyeing in their hands, and alse Appoynts and Ordaines the said Viscount to pay up to the said Countess the bygone aliments allowed to her for Lady Anna Arbuthnot and the fornamed persons, as also to make payment to the said Countess of the current quarters aliment for the said Master John, Ladies Anna, Margaret and Mary Arbuthnets from Mertimes last to Candlemess nixt to Come.

Edinburgh 18th January 1705

D1705/1/101

Decreet

Decreit in favours of the Viscount of Arbuthnet, appoynting the custody of his Brother and Sisters to belong to him

Anent the petition given in and presented to the Lords of her Majesties privie Councill, by Jean Countess of Southerland, Humbly Shewing, That where the Deceast Viscountess of Arbuthnet, her Daugher in prosecution of her maternall care and affection She had to her Children, did upon her deathbed, most Seriously Recommend to her Dearest Lord the Earle of Southerland, and her, her parents to take upon them the Custody and education of her Children, and to See them brought up in the fear of God, and educat according to their quality, In prosecution of which last will and desyre of her said Daughter by aggreement betwixt her deceast Lord on the ane pairt and Alexander Arbuthnet of Knox late Tutor to the present Viscount of Arbuthnet as principall and Sir Thomas Burnet of Leyes as Cautioner on the other pairt, It was aggreed that they Should have the custody of the Viscount and his Brother and Sisters in order to their breeding and education, Notwithstanding wherof they were necessitate to be at the expenses to apply to their Lordships for their Custody, And upon the fourth of February Jaj vic nyntie Six years, Their Lordships by there act ordained the Tutor to delyver up the Viscount to her said deceast Husband, And Ordained the Custody of the other Children to belong to and continue with them, with whom they then were, and Decerned the Viscount and his Tutor to pay to her deceast Lord Two Thousand Fyve Hundereth Merks yearly for the saids younger Children, their aliment at two termes in the year per advance, The Viscount her Grandson immediatly after expyreing of the years of his pupillarity, was induced by some of his Fathers relations to leave his Grandfather, and her, who had been so kynd to him, And Instrumentall in the preservation of his fortune, and estate, But his younger Brother and Sisters continue yet with her, who at least Master John Arbuthnet being about twelve or thirteen, and Lady Ann about fyfeteen or Sixteen years of age, and at all Schoolls needfull the aliment formerly allowed them being but Fyve Hundered merks per peice, was not able to defray the charge and expences of their education, and intertainment at bed boord and Cloaths etc And wheras their former act allowed only the Custody to her dearest Lord, and least now after there Grandfathers death their Brother the Viscount and his Relations on the Fathersyde (contrary to the Saids Children their inclinations) Should indeavour to deprive her of the Custody of Master John, and Lady Mary, and Margaret Arbuthnets the three younger Children who are within the years of pupillarity, and of the oversight of their education and breeding formerly allowed by2 their Lordships said act, and which was left her as Legacy by her said deceast Daughter their Mother, and now was intended to be taken from her, and they Sent to Arbuthnet where it can not be expected they would have that education and instruction they would have in this place, And therfore Craveing their Lordships to consider her said Grandchildrens Circumstances and condition, and that her only design, was to See them virtously brought up in the fear of the Lord, in prosecution of her Daughters earnest and positive desyre, Therfore to Ordaine the Custody of the Saids three younger Children Viz Master John, Ladyes Mary and Margaret Arbuthnets to belong to and continue with her, who was only their Surviveing parent, and to Decern and Ordain the Viscount their Brother to make payment to her of One thousand six hundered merks yearly for the aliment, and intertainment of the Saids Master John Lady Ann, in bed board cloaths etc and of one thousand Merks for the other two younger Children being Fyve hundered merks per peice, Conforme to the former act, as the said petition bears, Which petition being being upon the twentie Second day of Apryle Jaj vic and three years, Read in presence of the Saids Lords They Ordained Master John, Ladyes Mary and Margaret Arbuthnets Children to the deceast Viscountess of Arbuthnet to continue and remain in the petitioners Custodie till further orders, Therafter the said petition being again moved in presence of the saids Lords, and they haveing upon the twentieth of September Jaj vic and three years Considered the Samen, Together with ane act of Councill in favours of the Earle of Southerland anent the Custody and aliment of the deceast Viscountess of Arbuthnets Children, and the same being read in their presence His Grace and the saids Lords Doe heirby Ordaine the custody of Master John, Ladyes Mary and Margaret Arbuthnetts Children to the deceast Viscountess of Arbuthnet To belong to and continue with the petitioner, untill the first Councill day of November nixt to come, And then appoynts both pairties to be heard theranent, and in the mean tyme Decerns and Ordaines the Viscount of Arbuthnet their Brothers to make payment of halfe ane years aliment to the petitioner for the said Children upon her receipt, which is heirby Declaired to be sufficient, and betwixt and the Councill day forsaid to See and answer the said petition, Accordingly The Said Viscount of Arbuthnett having Seen the Said petition, he gave in a petition by way of answer therto Humbly Shewing That the Countess of Southerland, his Grandmother, in her petition, acknowledges that the Custody of his younger Brother and Sisters, was committed only to the late Earle of Southerland, and each of them had Fyve Hundereth Merks of yearly aliment from their petitioner, and one of them was past pupillarity, as the rest would Shortly be in capacity to choise Curators, Notwithstanding wherof her Ladyship was pleased to Crave not only the custody and education of their persons, But lykewayes Six hundered merks more yearly (being in all eighth hundered merks to each) for master John and Lady Ann, etc. In answer wherunto, the honour and respect which he did, bear to My Lady his Grandmother, did restrict him from propalling any more then some few of the grounds for which the desyre of the petition ought to be refused, and that informative, it not being competent to trouble his Grace and Lordships with determinations of that kynd, especiallie without a proces, For in the first place, as to the Custody my Lady hath no right therunto, Seeing the late Earle her Husband (who had the same by condescendance with Knox the Tutor) being to his regrate, deceased, the custody by Law, recurrs to the Tutor who concurrs with their petitioner, and his Brother and Sisters will be educat, as their quality and condition requyres Besydes which it was knowen by the practise both of the Councill and Session, that when Minors are about the tyme that they might come Shortly to choise Curators, they are frequently even taken from their Mothers Relations, that they might not be influenced either as to that, or in matching, Which ought to hold the rather in the present case, Because his Brother John being the nixt presumptive representative of the Family, he had a Speciall Interest, with advyce of his Friends to See to and observe his education which could not be so commodiously done by a Widdow Ladie and his Sisters depending upon him for their provisions (if he did intend to quarrell them upon the head of deathbed) Its reasonable that he and his Friends Should have Satisfaction in the maner of their breeding, which necessitats their petition to tell thus much, namely that neither his Brother, nor his Sisters (except his Brother within these three moneths) have ever been put to any publick Schools; the advantage wherof was obvious, nor were they keeped in My Ladyes Family (where they indeed would See so good order and example) but his Sisters Sometymes in the Cowgate, other tymes in Leith, and now at the Castlehill (yet still in no publick School) and his Brother at Prestonpanns etc In the nixt place, as to the additionall aliment, My Lady not having the Custody, its not due to her Ladyship, and the Children did not seek it, But further, ther are many other grounds for refuseing this demand, Such as primo, The yearly aliment to the Children at the first would never had been modified so high, (Fyve Hundereth merks a peice to Children Some in Infancy) especially considering that his Uncles and Aunts, the Viscounts his Grandfathers Children had only Three hundered merks a peice when the estate wanted some burdens which it hath none, were it not that it was then represented making their aliments the more liberall, that the excrescent Superplus, (which would be considerable in so many years) might be a fund to warrand their bonds of provision, But as in My Ladys petition, it was noticeable there was no offerr of Such ane application, so in a Lyfrentrix there was not Security for it, Secundo the precedents of his Uncles and Aunts makes it appear, that there needs no addition to his Brother and Sisters maintenance Especially Considering that Some of them are in Such Circumstances (wherewith it was needless to trouble his Grace and Lordships) that Suppose it were necessary, they could Spare a considerable allowance to be expended on the rest Tertio, It would not be thought reasonable that in the names of his Brothers and Sisters Such heavy burdens Should be imposed upon him, considering his present Circumstances, and his Grandmothers precise exactions, or that their provisions Should be thus Squandred without necessity, for tho he did resolve not to stand upon niceties of Law, in implementing his Fathers will, however legally quarrellable: yet its plain that their petitioner cannot be inclyned to extend himselfe so farr, as otherwayes, he designed, if by anticipation, The fund be wasted out of his hands, to no requisite purpose, And therfore Craveing it might please his Grace and Lordships, not only to take of their former deliverance on the Countesses bill, Ordaining Master John, Ladies Mary and Margaret Arbuthnets, to remain with her Ladyship till further orders, But lykwise to refuse the remanent desyre of the said bill, either as to the Custody, or additionall aliment, Especially Considering, that both the education and maintenance of his Brother and Sisters, will be cared for in the legall Channell effectually for their true Interest, as the said petition and answers also bears, Which petition and answers being upon the eighth day of December Jaj vic and three years Read in presence of the Saids Lords, they appoynted both pairties and their Lawiers to be ready to debate upon the matter represented in the bill and answers nixt Councill day According wherunto the Said Cause being called upon the eleventh day of January One thousand seven hundered and four years, and both pairties Lawiers being heard upon the matter represented in the said bill and answers, and removed, The Saids Lords nominated and appoynted a Committy of their own number to indeavour to Settle and aggree parties Recommended to them to meet at a certain tyme by past and Declaired three a quorum and to report, and the said committy having made no report in the said matter, The Saids Lords did upon the eighteenth day of January Jaj vic and four years Recomend to her Majesties advocat to prepare and bring in to the Councill, nixt Councill day a report in the Said proces Therafter upon the twentie fyfth day of January Jaj viic and four, Sir James Steuart her Majesties Advocat haveing made a verball report in the affair betwixt the Countess of Southerland, and the Viscount of Arbuthnet, and haveing produced ane bond granted by the Said Countess to master John Arbuthnet Second lawfull son to the deceast Robert Viscount of Arbuthnet for the soume of Fyve thousand merks Scots money payable at the first terme of Mertimess or Whitsonday after his attaining to the age of Twentie one years, Provydeing that the said Master John Arbuthnet Shall continue and remaine with the Countess, and under her Charge and oversight, untill he attaine to the age of Fyfteen years compleat, The Lords of her Majesties privie Councill appoynts the Samen to be delyvered in to the Clerks of Councill to lye in their hands, that the Viscount of Arbuthnet may free the Samen till nixt Councill day, Thereafter the Said Cause being called upon the eighth day of February last bypast, The Saids Lords Declaired they would advyse the said proces nixt Councill day, and upon the fyfteenth day of February also last bypast, the said proces being moved again in presence of the saids Lords, their Lordships delayed the advyseing therof till nixt Councill day, Therafter there being a petition given in and presented to the Lords of her Majesties privie Councill by the Countess Dowager of Southerland, and Lady Anne Arbuthnett Sister to the present Viscount of Arbuthnett and also Master John Arbuthnett, with Lady Mary and Margaret Arbuthnetts his two youngest Sisters, Humbly Shewing, That where by aggreement betwixt the deceast Earle of Southerland her Husband, and Alexander Arbuthnett of Knox late Tutor in Law to the present Viscount of Arbuthnett, the custody, oversight and education of the Children of Arbuthnett was to belong to the said Earle, which aggreement was ratified by the Lords of the privie Councill, and their aliments determined accordingly and Since the Earle of Southerlands decease She the said Countess applyed to their Lordships for the continuance of the three youngest Children, to witt Master John, and the Ladyes Mary, and Margaret Arbuthnetts with her, Master John being yet within the years of pupillarity, altho the other two be a little past theirs yet all of them, are very desyrous to Stay with her, and She humbly Craves that their Lordships would be pleased to appoynt her to have the Custody of Master John, and to augment his aliment three hundered merks more yearly which being at present but Four Hundered merks yearly and One hundered merks for his Governours fee which She had done for the last year, and halfe by runn at Whitsonday, which exhausts his aliment of Fyve hundered merks, So that there remains not one farthing in her hand to pay for his cloaths school fees, books, and all other necessaryes for his person, yet She had advanced upwards of Three hundered merks yearly, which She could instruct by the accompts She had payed for these necessaries to him which She ought to be reimbursed of by the present Viscount his Factors and Doers, Since She had offerred out of favour and kyndness to her Said Grandson, Master John Arbuthnet, that if their Lordships would continue him, in her Custody till he be Fyfteen years old compleit, and Ordain his Brother to pay for him eighth hundered merks yearly So long as he continues under her care, and in case of her death to continue the payment of it to him untill he be twentie one years compleit, Upon which She termes She was willing to give him a bond of Fyve Thousand merks payable to him at his Majority, It was therfore highly reasonable that his aliment Should be be3 augmented as Said is, that She be not burthened therewith, She could not undertake to give him Such a Soume and pay for his cloathing and other necessaries besydes, and as to the two youngest Sisters, She was willing to entertain them for the Fyve Hundered merks allowed to each of them yearly, So that they remaine under her care and Custody for three years to come, tho She be at a considerable charge more then their aliment will allow, For one of is fourteen years old, and the other is twelve, and desyres earnestly to Stay under her Care and education, And as to her the Said Lady Anne She hes and does heirby Declare that she will stay with and be under the care and oversight of the said Countess her Grandmother, But her aliment of Fyve Hundereth merks was not able to defray the expences of her bed and board, and furnish her with cloaths and other necessaries Suiteable to her age and quality, And if her Grandmothers kyndness to her had not exceeded, that of her other relations She could not have Subsisted hitherto upon so small ane allowance, and She hopes their Lordships will think it, but just and reasonable that the Viscount of Arbuthnett Should give his Brothers and Sisters the aliments, which She humbly Craves and not that the said Countess Should be burthened with any of their aliments, Since their Brother by the Law of nature, and practise of the Nation ought to maintaine them, and to pay for their education, cloaths and all necessaryes untill they be twentie one years compleat, and that he Settle portions upon them, And therfor Craving it might please his Grace and Lordships to consider the premisses with regaird to the condition of the Orphans, and not only to continue the Custody of the Said Master John, Arbuthnett, and his two youngest Sisters with her there Grandmother, who was there only Surviveing parent, but also to Ordaine the Viscount of Arbuthnet and his Factors and Chamberlands to pay to her eighth Hundered merks yearly, for Master Johns aliment And the like Soume to the Said Lady Anna, and Fyve Hundered merks yearly for each of the Two youngest Sisters at two termes of the year per advance, The additionall aliment to Commense from Mertimess last One thousand Seven hundered and three years, And to reimburse her the Soumes of money She had laid out on the accompt of Master John for all kynds of necessaryes to his person, Since Mertimess One thousand Seven hundered and two years, as the said petition bears, Which petition being upon the thirty day of August last bypast Read in presence of the saids Lords They appoynted the samen to be seen and answered nixt Councill day by the Viscount of Arbuthnet, and in the mean tyme continued the Custody of the Children with the said Lady as formerly, and upon the thirtie november last bypast the said petition being again moved in presence of the saids Lords, their Lordships allowed the samen to be seen and answered by the Viscount of Arbuthnet tuesday then nixt peremptorie and appoynted a Committie to endeavour to settle and aggree pairties in the mean tyme, and the Committie having made no report, there was ane other petition given in and presented to the Lords of her Majesties privie Councill by the Viscount of Arbuthnett Shewing That where Knox his Tutor having given the custody of himselfe his Brother and four Sisters his pupills to the Earle of Southerland their Grandfather, his Lordship made application to the right Honorable the Lords of Councill, That aliments Should be modified to them during their abode with him, And it being represented, that his Brother and Sisters were provyded on deathbed, and that therfore the aliments Should be the more liberall, especially seeing the excresence was to be applyed for his Brother and Sisters behooffe, the Councill was then pleased to modifie Fyve hundered merks yearly payable per advance for each of his Brother and Sisters extending to Two thousand Fyve Hundered merks yearlie upon their account, and besydes, eighth Hundered merks yearly for himselfe for bed and board allenerly, not including other incidents, for which his Tutor ordinarly payed upwards of One thousand merks yearly, and this was done notwithstanding they were mostly all Infants in Cradles, the eldest of them not exceeding eighth years of age, and albeit some of his Friends, for easeing him of Such a burden upon him weak fortune, offerred at the Barr to aliment his Brother and Sisters gratis, But in respect his Brother and Sisters were in effect unprovyded, and it was not doubted but that my Lord Southerland their Grandfather would have laid asyde so much yearly for their behooffe, The right honorable the then Lords of Councill were pleased to modifie the aliments at the rate and in maner abovementioned, and to convince their Lordships, that this was not only intended, but lykewise might have been made effectuall, He could instantly instruct by receipts under the late Earle and Countess of Southerlands, that they have received upwards of Twentie three thousand, Three hundereth and eightie two pound, Sixteen Shilling Scots money for Simple of aliment of himselfe Brothers and Sisters so that it was evident to their Lordships how heavy a burden hitherto that hath been upon his fortune, Notwithstanding wherof, and without mentioning any excresence for the behooffe of his Brother, and Sisters, which he most justly expected for their petitioners relieffe, who must alwayes some way or othre look to their provision, yet all he meets with now upon the death of My Lord Southerland his Grandfather, when in all reason he acclaimes the custody of his Brother and Sisters, was, that My Lady his Grandmother, gives in a petition to their Lordships, Craving not only the custody, but likewise additionall Aliments for two of them, his Sister Anne and Brother John of Three Hundered merks yearly being eighth hundered merks for each, Wherupon their Lordships upon their delyverance continued the Custodie to My Lady, and in the mean tyme allowed him to See and answer, And accordingly He did give in a Counter petition by way of answer, Craving the Custody of his Brother and Sisters, whom he alwayes was, and still is willing to educat and aliment conforme to his fortune and estate That question betwixt his Grandmother and their petitioner hath now had a long dependance, and brought him to vast Charges, having called him up heir four or fyve severall tymes from his own house, and now when he was desirous of nothing more then to live privatly at home, doing what he could to retrieve his fortune, that so he might be in the better capacity not only to aliment but lykewise provyde for his Brother and Sisters, He might justly have expected, that my Lady his Grandmother would have incouradged him in Such frugall measures, But Seeing My Lady Still insists againest him, and that former Committies named by their Lordships their Sentiments in the affair had taken no effect He was necessitat once more to mean himselfe to their Lordships, begging the honorable Councill at last to putt ane end to that affair, and Seriously consider primo How grievous it hath been to him to pay up bygone aliments, ammounting to no less then Twentie three thousand, Three Hundered and eighty two pound Sixteen Shilling Scots, and how rigid his Grandmother hath been in her exactions, haveing charged him once with horning, and arreisted his Trunk maill when he was going home (the first dilligence ever done againest him) which hath necessitat him to negotiat bills with the Bank at ane high interest for her payment, And tho now he most justly expected to have heard of some considerable excresence for the behooffe of his Brother and Sisters, which might have tended to his further ease, yet instead of that, all he hears is that My Lady was Superexpended, and addittionall aliments Craved Secundo he humbly conceives that by no Law can he be obliedged to be termely advanceing and Sending up Such considerable Soumes in name of Simple aliment to his Brother and Sisters, and he must ingenously acknowledge his Circumstances are Such, that he was not in condition to doe it, Seeing the Soumes to be termly advanced exceed the Silver rent of his whole estate, and he humbly conceives, all that in Law reason or justice could be demanded of him, was that he Should aliment his Brother and Sisters, himselfe, which he was alwayes willing to doe, and if necessary the minor himselfe, Should find Caution for that effect, and he must even beggl eave of his Grandmother to say; that tho he be neither married, nor Major himselfe yet the method he proposed for their education was as reasonable, yea more, there that which had hitherto been taken, For the Lords of Councill would be pleased to be informed, that none of his Sisters were putt to a publick School, nor yet his Brother till of late, My Lady had Sent him out to Prestonpanns, and the method My Lady had hitherto taken, was, that two of his Sisters live at the Castlehill in a Chamber there, with a Simple waiting Maid, Seldom or never going abroad, and indeed they are but naturally weak and infirm, and he beggs of their Lordships to consider, whether or not they more reasonably stay with him at Arbuthnet, where they Should have a Governess to attend them, more knowing then they ever yet had, as for his Sister Ann, who was now of age, and marriageable, She sometymes Stayes at Prestonpanns with their Aunt, and Seldom till of late with My Lady, and he appealls to their Lordships, whither or not it be more creditable for her to Stay with him, in his own Family, where She Should Stay as Mistres of all or at other tymes to visit his other relations, who are all very willing kyndly to receive and entertaine her, and whither or not by this means She may have a more favourable opportunity of a comfortable Match amongest her Friends, where She was born, then in a remote Corner, as for his Brother John, he was the nixt representative of his Family, and consequently he was obliedged to look the more narrowly to his education, and humbly proposes the Sending of him to Aberdein, with a Governour, and when he was at the Colledge, he proposed the haveing of him about him, during the Vacation, By which their Lordships might be fully convinced, that he demands nothing but what was truly reasonable, and absolutely necessary, considering the present Circumstances of his fortune which he endeavoured by all means he could to advance, and what was truly in itselfe advantageous for his Brother and Sisters themselves, for as to his fortune the advantage was most palpable, because having meall, malt etc of his own, he could Send in what was necessary to Aberdein, and So Should be much eased of the dayly advance of ready money, which truly frequently he could not have but upon Credite, And as for his Brother and Sisters themselves, the advantage was not less, for at that rate they always being near to, or about him, affection betwixt them Should be the more deeply rooted, and his Circumstances being bettered, he Should therby be the more enabled Sufficiently to provyde for them, who otherwise are unprovyded, at least their provision being granted on deathbed are reduceable, tho he never yet attempted it, Tertio His Uncles and Aunts during their whole Minority, had but four Hundered merks per peice for aliment, untill their provisions fell due and his estate at that tyme was in farr better Circumstances, for their provisions being only debts conditionall, in case of their attaining to Such, and Such ages, unto which de facto, they had all now attained So that his estate was burthened with ane hundered thousand merks upon that accompt, wherof not one sixpence was then due, and yet they rested well Satisfied with the aliments allowed them, and never to this day acclaimed any additions upon that accompt, tho these Aliments were not modified by their Father, but by paction accepted of as sufficient, and yet it was very well knowen that all4 of them were very Sufficiently educat at Aberdein, and keeped together at Schools and Colledges there to more considerable improvements in learning and otherwise, then any of his Brother or Sisters had as yet Come to, nor had the right Honorable the Lords of Councill exceed this Quota at first, but upon the prospect of ane yearly excrescence and out-lay, which was not now to be heard of, He Should not trouble their Lordships to inform, what various applications had been made to parliament, Councill, and Session, and what expences he had been putt to upon that head, only he begged leave to represent that much to their Lordships, that it was represented in parliament, that his Brother and Sisters were unprovyded, and therfore it was then Craved of the Estates of parliament, that they out of their transcendent power would modifie provisions to them, which petition was rejected, And now it Seem’s My Lady, his Grandmother would Supply that by petition alse extravigant of additionall aliment, bringing on upon his Family a burthen as heavie, viz ane Annuity of Two thousand Six hundereth merks yearly ane burthen of itselfe sufficient to Sink his weak fortune, and which upon ane other application of that nature might be augmented in behalfe of his other Two Sisters to the utter extirpation of him and his Family, for all which his Brother and Sisters are to have nothing but Simple Aliment, and that after maner, and in the method abovementioned, Upon the whole matter, he demands nothing of their Lordships, but what was absolutelie necessary for the preservation of his Family, for the absolute interest and advantage of his Brother and Sisters themselves, whom he was willing to aliment and educat to the reasonable Satisfaction of all the World, which was all that in Law, or reason could be demanded and which he with the more earnestness intreated, that he might be the further capacitated to provyde for them, And therfore Craveing it might please their Lordships to consider the premisses, and Seeing Committees hitherto had taken no effect, and what was now represented was in itselfe so reasonable, and did so nearly concern the wellfare of their petitioners Family as well as the interest and advantage of his Brother and Sisters, that their Lordships might allow him the custody of his Brother and Sisters, or otherwise if any difficulty remained, for preventing any further trouble and expensses to their petitioner, by necessary attendance to appoynt a precise day to hear both pairties by their procurators, that so the matter might come to ane finall Decision and determination, as the said petition lykewayes bears, Which petition being upon the nynth day of January instant read in presence of the saids Lords and they having Considered the Samen, they appoynted both pairties and their Lawiers to be ready to debate Teusday nixt peremptorie, And in the mean tyme recommended to the Earle of Southerland, Lord Advocat, and Lord Phesdo to endeavour to aggree pairties and the saids Lords having mett they reported Verbally, that they could not aggree pairties, Wherupon the Saids Lords did upon the Sixteenth day of January instant Declaire that they would call the cause the Countess of Southerland againest the Viscount of Arbuthnet Thursday then nixt, and appoynted both pairties and their Lawiers to be ready to debate the said day peremptorie, Therafter upon the day and date of thir presents the said proces at the instance of Jean Countess of Southerland againest Robert Viscount of Arbuthnett Being called, and the Countess Compearing at the Barr by Sir David Cunninghame and Mr David Forbes her advocats and the said Viscount Compearing also personally at the Barr, with Sir David Dalrymple, Master Alexander Maitland, and Mr William Black his advocats, and both pairties Lawiers being heard at the Batt, and removed The Lords of her Majesties privie Councill haveing Considered the debate, and petitions and ansuers hinc Inde Interloquitors therupon, and haill Steps of the forsaid proces They have appoynted and Allowed and heirby Appoynts and Allowes the said Viscount the Custody and keeping of Master John, Ladies Mary and Margaret Arbuthnots his Brother and Sisters, upon his giving bond, and finding Sufficient Caution acted in the books of privie Councill for alimenting of the saids Master John, and Ladies Mary and Margaret Arbuthnetts in bed, board, and abulziements of their bodies Sutable to their quality, and educating and training them up at Schools and Colledges as their said Quality might requyre, And appoynts and Ordaines the said Countess instantly to Cede and quyt the Custodie of the Saids Children to the Said Viscount, And have Appoynted and Ordained the Clerks of Councill to delyver up to the said Countess the bond granted by her to the said Master John Arbuthnot for the soume of Fyve thousand merks now lyeing in their hands, and alse Appoynts and Ordaines the said Viscount to pay up to the said Countess the bygone aliments allowed to her for Lady Anna Arbuthnot and the fornamed persons, as also to make payment to the said Countess of the current quarters aliment for the said Master John, Ladies Anna, Margaret and Mary Arbuthnets from Mertimes last to Candlemess nixt to Come.

1. NRS, PC2/28, 348v-355v.

2. The word ‘by’ is an insertion.

3. Sic.

4. The word ‘all’ is an insertion.

1. NRS, PC2/28, 348v-355v.

2. The word ‘by’ is an insertion.

3. Sic.

4. The word ‘all’ is an insertion.