Act, 6 October 1697, Edinburgh

Att Edinburgh the fiftein day of Juny J^aj vi^c nyntie seven yeirs

D1697/6/9

D1697/6/9¹

Judicial Proceeding

Remit the Earle of Sowtherland and Knox

Anent the petitione given in to the Lords of his majesties privie Counsell be George Earle of Southerland Shewing That wher it is well knowen how much trouble and expenss the petitioner was at in redwceing ane pretended nominatione fownded on by Arbuthnot of Knox fall colloureing the said Knox his wnwarrantable intromissiones with the meanes and estate of the Viscount of Arbuthnot the petitioners Grandchild as if he had bein tutor testamenter Dwelie Left by the Last Viscownt And Likewayes what expensses it coast the petitioner in establishing rwles of administratione and manadgement with the said Knox wherby to Secure against all hazards by his intromission as tutor in Law wherupon Ther Lordships haveing appointed the said Knox to pay the petitioner Eight Hundereth merks yeirlie for defraying the expensses of the Viscount of Arbuthnot the petitioners grandchild and his governour and ther bed and board And ther Lordships haveing remitted the consideratione of what was debursed be the petitioner on the Viscounts other necessaries Such as cloaths pocket money Governour and Schoollmaister fies with the fees of chirurgions and phisitions and others attour bed and board expended by the petitioner to the Lords of Sessione to be Summarlie discust ther Lordships took all the petitioners saids articles of expensses into ther consideratione except as to the accompts of his Law depursements which throw the Litigiowsenes of the Said tutor amounted at that tyme to the Soume of Ane Thowsand and thrie pwnds Scotts In regaird the Same was not Speciallie mentioned in ther Lordships remit And albeit the Lords did decerne the twtor in payment of the debursements acclaimed by the petitionre on accompt of other incident charges attour the Viscounts bed and board afoirsaid amounting to about Four Hundereth and fiftie punds Scotts as ther Lordships Decreit therwith prodwced can testifie Nevertheles soe refractorie and Litigiows is the tutor that he refwises to pay as he hes Likewayes declyned the implementing the articles and termes of his administratione once Solemnlie agried unto betuixt him and the petitioner that the petitioner hes bein necessitat to his great expenses and trouble to renew perswites against him be for the Lords of Sessione wherin they prodwced ther decreits and acts in the petitioners favoures As the extract of the Same amounting to near fiftie Sheets of paper therwith Likewayes prodwced can testifie wherthrow the petitioner is not onlie putt to ane new accompt of expenses of Law and furder debursements for the lyke necessaries for his grandchild as are above exprest amounting conforme to particular accompt of the Same therwith given in to Six Hundereth and eightie punds Scotts which with the former accompt of Law expensses amounts in all to the Soume of Ane Thousand Six Hundereth and eightie thrie pund Scots that the twtor does contentiowselie and wrongouselie refwise to pay the petitioner Likeas the tutor his way of disappointing the effect of Legall Sentances als well as of his conventionall agriements with the petitioner by Suspending the Same upon frivolows grownds of purpose to creat the petitioner more expensses being now most manifest ther is nothing can Secure the petitioner against the Loss of expending als much upon perswites att Law against Knox for payment of what he necessarlie expend as a foirsaid upon the Viscount his grandchild as his necessaries will amownt to and more But that Knox be ordained for tymes to come to advance the petitioner Such ane Sowme termlie as ther Lordships thinks reasoneable that therby he may have wherwith to defray the expensses of the Viscounts other necessaries without the hazard of expending twice als much upon Law against the tutor befor he can be repayed therof Therfore and Seing the petitioner desyres not to be gainer in one Sixpence at his grandchilds hands But onlie that his tutor may not continwallie abuse him in the mater of refownding his debursements on his grandchild so profiteable necessaries And therfor Humblie craveing ther Lordships would be pleased not onlie to decerne the said tutor in payment of the petitioners said accompt and clame of Ane Thousand Six hundereth eightie thrie pund Scots afoirsaid But Likewayes to ordaine the tutor to advance betuixt and Lambmes next for the yeir ensweing the petitioner yeirlie Such ane Soume as ther Lordships Shall think reasoneable begining the first yeirs advance betuixt and Lambmes next for the yeir insweing And that to be yeirlie compted for be the petitioner in Such Sort as if any thing remained attour the yeirs contingent expensses the same may be reckoned upon in the first end of the tutors next yeirs advance As the said petitione bears which petitione being upon the eight of Jwne instant read in presence of the Saids Lords of privie Counsell they allowed the Laird of Knox to Sie and ansuer the Same And the other petitione be Alexander Arbuthnet of Knox be way of answer to the Earles petitione efter he had Sein the Same Shewing That wher The Earle of Southerland haveing given in a petitione to ther Lordships Representing the great trouble and expensses he hes bein putt to in reduceing the Late Viscount of Arbuthnets nominatione of tutors to his childrein and manadgers to his estate and expensses of establishing rwles of administratione to Knox as now tutor in Law And that ther Lordships had appointed ane aliment to the Earle for the now Viscownt and had remitted to the Lords of Sessione to consider the expensses debursed be the Earle for the Viscownt of necessaries Such as cloaths etc to be Sumarlie discust And Complaineing of the great expensses that Knox occasiones the Earle from tyme to tyme by chargeing him to implement his articles by his Litigiows defending of process and wnjust Suspending of the charges given on purpose to creat more expensses and trouble to the Earle And therfore craves that ther Lordships would ordaine the twtor to pay Ane thousand Six hundereth eightie thrie pund Scotts of expensses alreadie debursed be the Earle and would Likewayes ordaine Knox as tutor to advance to the Earle Such a Soume as ther Lordships Shall think reasoneable for the Viscounts contingent expensses The Viscount and his tutor hes mett with a great many petitioners and complaints of this nature and have bein brought to a great dale of wnnecessarie charges and expensses in makeing answers and defending process without any foundatione in Law or Justice and it is not ordinarie for ther Lordships to admit of Such addresses or to receave complaints against any persone far Less a minor and his tutor without citatione And all that the Viscount or Knox his tutors advocat can ansuer at this tyme is that the Viscount² nor his tutor are cited to ansuer to the complaint given in against them But that ther Lordships may be Somewhat informed of the mater of fact It is trwe that the Earle putt himself to a great dale of neidles expensses in redwceing the Late Viscounts nominatione which perhapps may be thought by the Viscownt when he duelie Considers his own affairs to tend verie Litle to his advantage Knox and Lies for Satisfieing the Earle and for removeing all differences did enter in ane agriement with him in his own termes But the methods taken by them theranent hes occasioned them a great dale of trouble and expensses and the Long act that the Earle mentions as prodwced with his bill if duely considered will evidence a great pairt of what is heir represented But it cannot be made appear that the tutor hes failled in any pairt wherin he was bownd be these articles The Earles main designe in this petitione is that ther Lordships would grant a modificatione over and above the Viscounts aliment for defraying expensses of his contingencies to be payed yeirlie be advance when he finds that the Lords of Sessione have found that in Law no Such modificatione can be granted what is now craved by The Earle As to the modificatione of a Soume for contingencies was formerlie craved in a former petition and remitted by ther Lordships to the Lords of Session and by them rejected for the most that any tutor can be lyable for is for what can be instructed to be profiteable expended for the pwpill And that efter expending therof It is impossible for the tutor to pay any thing for the pupill or to make any advances But out of the product of his estate Its knowen to the Earle that the victwall rent of the viscownts estate was sold in this towne and the first moyetie commences at this present terme And as the twtor hes hitherto pwnctwallie payed the Earle for the Viscounts aliment so owt of the first that shall be payed as this terme Shall be payed of what is presentlie dwe for the viscownt and his brothers and sisters aliment with what the Earle hes given out for the Viscounts other necessaries It is needles to trouble ther Lordships with a new representatione of the trouble the tutor and his freinds have bein brought to both befor ther Lordships the Sessione and parliament and back from the one to the other which certainlie must occasione the Viscount a great dale of expensses But ther Lordships Shall gett no furder trouble theranent And therfore Its humbly expected that ther Lordships will refwise the desyre of the Earles petitione and Leave him to the ordinarie course of Law which is the comoun rwle by which all tutors must regulat ther manadgement and the tutor will willinglie acqeiesce that any proces that may be comenced by The Earle be Summarlie discust that ther by wnnecessarie expensses may be prevened³ The Lords of his majesties privie Counsell haveing considered both the above petitiones They heirby remitt both the saids petitiones and Severall points therin contained to The Lords of Counsell and Sessione to be proceeded in discust and determined by ther Lordships Summarlie without necessitie of abideing the Course of the Roll