Warrant, 21 December 1699, Edinburgh

Att Edinburgh The Sixth day of March J^aj vi^c Nyntie Nyne years

D1699/3/5

D1699/3/5¹

Decreet

Decreet Sussana Weir and her husband Against Anna Johnstone and her husband

Anent the bill of Suspensione given in to the Lords of his Majesties privy Councill be Anna Johnstone relict of the deceast Walter Weer of Dalrymilnes and James Murray merchant in Edinburgh her husband for his intrest Shewing That wher the petitioners are Charged be vertue of Letters of horning raised at the instance of Sussana Weir daughter to the deceast Gavin Weir Who was brother to the said deceast Walter Weir and only appearand heir to him and George Weir one of the macers of privy Councill Curators to the said Sussana Weir To make payment to the said Chargers of the Soume of ane hundred merks Scots money as ane termes aliement due by the petitioners to the said Chargers from the terme of Martinmass J^aj vi^c Nyntie Seven to Whitsunday J^aj vi^c nyntie Eight Contained in ane decreit obtained at the instances of the said Sussana and George Weirs before the saids Lords against the petitioner and her husband for his intrest upon the twenty eight of November J^aj vi^c Nyntie thrie, and that within ane Certaine Short space nixt after the Charge under the payne of rebellion and puting the petitioner to the horn And who for alleadged disobedience intends to cause Denounce the petitioners most wrongeously and injustly Considering it is of verity That primo the said Sussana Weir is now Maried and Cloathed with a husband Viz Charles Mylne wryter to the Signet Who by the Lawes of this and all nations is oblidged to provyde his wife with all Necessars Especially With food and rayment So that the pretended act of Councill is now exauterat, For it could never be extended furder then ane aliement dureing the said Sussanns Minority or while unmaried And being maried the saids Lords act Cease Secundo albeit She were not Cited with a husband as she is yet she could have no aliement allowed her out of the relict of Walter Weirs lifrent which is only ane annuittie Because primo She is not Walter Weirs Daughter who was propriator and who for Onerous Causes provyded the petitioner in ane reasonable annuity Secundo Because the petitioner offer possitively to make appear to the saids Lords that the said Sussanna Weir is in possession or has right to uplift betwixt thrie and four hundred merks yearly as the rents of the houses and Lands in the Potterow which pertained to the said Walter Weir her uncle, and now Setled upon her by the assistance of her freinds and factor Tertio the petitioner Craves Compensatione of the Soume of Fourty pounds Scots in part of payment of ane greater due by the said Charles Milne to the petitioner Conforme to his bond therwith produced Quinto the mariadge was Clandastine and Irregular being Contrair to the acts of parliament and She maried against all her freinds wills and without their Consents For which the said George Weir will not own her more and offers to disclaime the Charge given in in his name, and Lastly at fardest the petitioner could only be Lyable for payment of ane termes aliement Viz from Mertinmas J^aj vi^c nyntie Seven to Whitsunday J^aj vi^c Nyntie Eight preceeding the mariadge Which the petitioner was willing to pay allowing the said Compensation and upon a sufficient discharge to free the petitioner of any farder payments in time comeing of the aliement Contained in the said act of Councill, By all which it was evident that the petitioner was wrongeously Charged and therby her escheat undangered And Therfore is Nevertheless for the more obedience She was content to find Caution acted in the Saids Lords books to the effect above mentioned Incase it should be found be the saids Lords that she was Lyable and ought so to doe at the discussing therof And Therfore Humbly Craveing the saids Lords would be pleased to Grant Letters for Sumonding the said Sussanna Weir Charles Milne and George Weir Chargers To Compear before the saids Lords Bringing with them the forsaid act and Letters of horning following theron executiones and indorsationes therof To have been seen and Considered be the saids Lords, And to have heard and seen the Samen Suspended as the said bill bears Which Bill being read in presence of the saids Lords of his majesties privy Councill Upon the Sixtein day of February Last They Ordained both parties to be ready against ane Certaine day now bygone to debate the saids reasones of the bill of Suspension and declared that they would dismiss the reasones upon the bill and in the mean time allowed the Charger to See and answer the Same and Stopt all executione at the instance of the Saids Chargers against the said Suspenders upon the decreet charged on till the answers be given in to the said bill of Suspension and the bill and answers advyssed and interloquitors pronunced by the Councill theron, Which bill of Suspension being given up to the Chargers to see and answer and they haveing seen the same returned the bill and gave in the answers therto following Viz, The Lords of his Majesties privy Councill haveing setled ane aliement upon the said Sussanna as appearand heir to the said Walter Weir of Dalrymilns her uncle to be payed by the said Anna Johnstoune relict of the said Walter who Lifrented the whole intrest and which aliement is only two hundred merks yearly The lifrentrix and her husband gives in a bill of Suspension to the saids Lords and without repeating the Samen, the Chargers returne the following answers, As to the first reasone bearing that the said Sussanna being now maried, her husband ought to aliement her It was answered Primo That the act of parliament is opponed bearing that Lifrentars and Conjunct fiars are ordained to provyde the appearand heir with ane reasonable Liveing and Sustaintation to the heir after the quantitie of the heritadge If ther be no blench or few Lands to Sustaine the heir upon, So that the act of parliament being act 25 parliament 3d James 4th makes no distinction whither the heir be maried or unmaried, and the Sustaintation of the heir Is a proper debt and burden upon the lifrentrix fixed and Constituted by ane express Law, and makes no exception except wher the act hes few or blench Lands to mantaine them It is true that a husband is oblidged to maintaine his wife, Bot this does not Liberat the lifrentar from the Obligation Imposed upon the Lifrentar by the forsaid act of parliament for therby the aliement is aproper debt due to the heir In Swae farr as it is Suitable to the estates and if what aliement the estate may be or be not Sufficient the husband most aliement her Sufficiently and seek in from the lifrentrix the Soume due by her, For if ane wife hade ane aliement Constituted to her by her first husband dureing her lifetime as a lifrent may be If that² woman should after wards be maried to a Second husband It would not make the Constitution of the first aliement void, albeit her husband were oblidged to provyde for her, Bot notwithstanding therof She and her second husband would have right to the provision of aliement constitut by a Second husband Even So in this case albeit the husband be oblidged to provyde for his wife, yet neither he nor She was obliedged therby to pass from any right Constitut in their person by Law or paction Secundo if the appearand heir hade been make as she is female Non would have pretended that the mariadge of the male heir would have freed the lifrentrix from ane aliement and Seing the act of parliament makes no distinctione whither the heir male or famale or whither maried or not It was hoped that the saids Lords would make no distinction as to the second pretence that she is not Walter Weirs daughter Who was husband to the lifrentrix It is answered that she is Walter Weirs brothers daughter and appearand heir, and the act of parliament is in Generall termes appoints the appearand heir to have ane aliement whither Child, remotter or relatione without distinctione To the thrid that the heir uplifts thrie or four hundred merks yearly It is answered the samen is false, To the fourth anent the Compensation, It is answered that the Samen is a penaltie of Fourtie pound wherby William Milne masson and the said Charles as Cautioner for him was obleidged to perfect ane peice of work to the said Murray as factor to Anna Megitt, relict of the deceast Baillie Johnstone of Poltoune at the Sight of Alexander Govenlocks masson and in Obedience therunto the said William and Charles Mylnes Togither with the said Alexander Govenlocks at whose sight the samen was appointed to be done, past to the dwalling house wher the said masson work was to be put up, and the petitioners could have no enterance therto, either be the present possessor nor would the said James Murray concurr with them to procure the samen, as ane instrument taken therupon, and Declaration under the said Alexander Govenlocks his hand therwith produced would testifie as to the fifth, That the mariadge was Irregular It is jus Tertii to the defender whither it is so or not, as to the sixth that he haveing maried her without her freinds Consent and that George Weir who was her Curator will not own her, and that he will disclaime the Charge given It is false for ther is not one of her freinds bot ownes both she and the said Charles and they desyre that Mr Murray would be pleased to Condescend upon any of her freinds that disownes her or the said Charles, and as to the Last the answer of the first is opponed bearing that the mariadge does not terminat the aliement In Respect wherof the desyre of the bill Ought to be refused as the answers bears Which bill and answers given in therto be the Chargers Being this day read in presence of the Lords of his majesties privy Councill And the saids Lords haveing Considered the Said bill and reasones therof with the answers made by the saids Chargers therto They Doe hereby Find the letters and Charges raised at the Chargers instance against the saids Suspenders Orderly proceeded for the above Soume of ane hundred merks as the aliement due from mertimass J^aj vi^c nyntie seven to Whitsunday J^aj vi^c nyntie Eight years And Ordaines the same to be put to executione ay and while the saids Suspenders make payment therof, And have suspended and hereby Suspends the said decreet charged on and all payment of the alliement therin Contained from and after the said terme of Whitsunday J^aj vi^c nyntie Eight years and Declares the Saids Suspenders quyt therof and free therfrae in all time comeing, And Ordaines the Chargers before extracting hereof to purge or Louse any areistments which are Laid on in the Suspenders hands upon the aliement for which the Letters are found orderly proceeded as Law requyres.