Tag Archives: January

Act, 25 January 1705, Edinburgh

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Edinburgh 25th January 1705

D1705/1/181

Act

Act in favours of the Countess of Southesque for the Custody of the Earle

Anent the petition given in and presnted to the Lords of her Majesties privie Councill By Mary Countess of Southesque, Shewing, That My Lord named manie honourable and worthy persons and her to be Tutors to James Earle of Southesque his son to Continue Curators to him, conforme to the late act of parliament, She being Mother and Tutor have the Custody of his person, and have been so happie in the care of him, and his education; that she doe say that he was equall to anie in his age, and could Subject him to tryall, Her son and She live well and happie together to their mutuall Comfort, and to the Satisfaction of a great pairt if not of the greatest pairt of the Tutors whom she had still studied to oblidge and from whom she will expect a suitable returne, But being upon the nynteenth day of January instant requyred by the Earle of Home in name of the Tutors as his Lordship said to delyver the Earle of Southesk her son to him She was not only Surprized by the Suddentie but lykeways astonished as to what might be the occasion of the said requistition, wherfore Surpryzed as she was, She desyred his Lordships demand in wrytting and offered ane returne to morrow, the same way, But upon this his Lordship took Instruments upon his requisition, which put me in fear of other designs againest her son, wherfore she humbly represent to their Lordships that seeing nothing of neglect as to care or education, or alteration of her condition can be laid to her charge, and that such requisition insinuat a difference betwixt the Tutors and her, and that therby she and her son, are afraid of other designs and sudden surpryzers of him going to or comeing from his Schools and exercises Craving therfore it might please their Lordships that Seeing She is Mother and Tutor, and therby had the undoubted right to the Custodie of her Son, and that the other Tutors concurr with her, and that his Curators are already named by his Father, To give her and him their Lordships protection, and to authorize her to keep him till his pupillarity expyre and he have the disposall of himselfe, and so to remove her fears and jealousies which otherwayes are unavoidable, as the said petition bears, Which petition being upon the twenty third day of January Jaj viic and fyve years, read in presence of the saids Lords, They appoynted and Ordained the petitioner to have the Custody and keeping of James Earle of Southesk her son, and have Discharged and heirby Discharges any person whatsomever to meddle with or disquiet the petitioner in the peaceable possession of the said Custody and keeping of the said Earle of Southesk as they will be answerable on their highest perill, untill the said petition and answers if any be given in be advysed by the saids Lords, and allowes the rest of the Earles Tutors to See and answer the petition again Thursday nixt peremptorie, Accordingly there was a representation by way of answer given in by the Earle of Home and Northeske the Lord St Clair, My Lord Rankeillor, and Mr James Martine Tutors to the Earle of Southesque, Shewing The Deceast Charles Earle of Southesk by his nomination of Tutory did nominat and appoynt the persons above, with the Earle of Lauderdale, and Countess of Southesque, and some others, to be Tutors and Curators to his Son the present Earle and appoynted any two of them to be a Quorum, the said Mr James Martine being alwayes one, whom he likewise Ordains to be Manager of his said Son, and all his affairs and actor therin, as the said nomination doth expressly bear, The person above having accepted they proceeded with all imaginable respect toward the Countess, and did aggree frankly that she Should have the keeping and education of her Son to the age of Twelve, which was indeed a Concert, that after that age he Should be at the disposall of his Tutors in order to a free and liberall education, And this was done by act of Sederunt of the Tutors, to which both the Earle of Lauderdale and Countess are Subscrybeing, and farder the Tutors ventured upon giving to the Countess Fyve thousand merks a year, for the Earles maintenance tho he was then only seven years of age, by way of advance, which was above what would have been modified by any judge And besydes gave her, the Tack and possession of the maynes of Kinnaird, with her Lords haill Stocking theronboll, and that at rate far below the value for both and wherof my Lady Still retain’s the possession, as also She was allowed to reside in the house of Kinnaird to which She had no right, and was also allowed the use of the whole furniture and moveables of the house Such was the respect the Tutors bear to My Lady, and refused her nothing that might anywayes tend to her Satisfaction, besydes her ease and conveniency. The Tutors Shall not take notice, that they have not mett with a Suitable return, for they have all a deference and respect to her Ladyship, But insofarras they were intrusted by the defunct, and their office and duty calls them to, they could not but concern themselves in the education of the Earle, and therfore in pursuance of the abovementioned Sederunt, to which the Countess is Consenter They resolved that the Earles person Should be delivered up to them, that they might take care of his having the benefite of a liberall education at Schools and Colledges and that now Considering his age, he ought not to be keeped under her Government, or the Government of Women, and to this the generallity of the Tutors aggreed and sett down their act of Sederunt to that purpose, which was Solemnly Subscryved by them all, and also by the Earle of Lauderdale, and made intimation therof to the Countess, and civilly requyred her, and besydes their former unanimous resolution, they were the more engadged to this that the Countess contrary to the Tutors inclination and orders brought over her son heire, and maintains him under that ane and authority that he hes not been allowed these Two Winters to See any of his Tutors, These with many other considerations hes moved his Tutors after requyreing the Countess by Instrument, to raise and execute a Summonds of exhibition, and delivery of the Earles person to them befor the Lords of Session that the Earles might be bred and educat according to his Rank and quality, and have a free and liberall education suitable to his age, and the Law, and daylie practique in such cases, and to which the Countess had plainly already Consented by Subscrybeing the act of sederunt; wherin the Tutors did allow the Custody of her son to the age of Twelve, and that from thence forth, he was to be delivered up to his Tutors to be educat at schools and universities as they Should think fitt, And therfore humbly entreated that the Countess her petition might be remitted to the Judge Ordinar befor whom ther is already a depending proces for exhibition and delivery of the Earles person, and in the mean tyme, if their Lordships please for their Satisfaction, and their exoneration, the Tutors are Satisfied to meet befor any of their number. they should appoynt to justifie all the poynts of this representation; The Lords of her Majesties privie Councill having upon the day and date of thir presents Considered the above petition given in to them by Mary Countess of Southesque, with ane representation by way of answer, therto by the Earles of Home, and Northesk, The Lord Sinclair, the Lord Rankeillor, and Mr James Martine Tutors to the Earle of Northesque, The Lord Sinclair, the Lord Rankeillor and Mr James Martine Tutors to the Earle of Southesque, and the samen with the former deliverance upon the Countess petition, Being read in their presence, The saids Lords have appoynted and Ordained and heirby appoynts and Ordains the petitioner to have the Custody and keeping of James Earle of Southesque her Son during the years of his pupillarity, and ay and while he attaine to Fourteen years compleat.

Edinburgh 25th January 1705

D1705/1/181

Act

Act in favours of the Countess of Southesque for the Custody of the Earle

Anent the petition given in and presnted to the Lords of her Majesties privie Councill By Mary Countess of Southesque, Shewing, That My Lord named manie honourable and worthy persons and her to be Tutors to James Earle of Southesque his son to Continue Curators to him, conforme to the late act of parliament, She being Mother and Tutor have the Custody of his person, and have been so happie in the care of him, and his education; that she doe say that he was equall to anie in his age, and could Subject him to tryall, Her son and She live well and happie together to their mutuall Comfort, and to the Satisfaction of a great pairt if not of the greatest pairt of the Tutors whom she had still studied to oblidge and from whom she will expect a suitable returne, But being upon the nynteenth day of January instant requyred by the Earle of Home in name of the Tutors as his Lordship said to delyver the Earle of Southesk her son to him She was not only Surprized by the Suddentie but lykeways astonished as to what might be the occasion of the said requistition, wherfore Surpryzed as she was, She desyred his Lordships demand in wrytting and offered ane returne to morrow, the same way, But upon this his Lordship took Instruments upon his requisition, which put me in fear of other designs againest her son, wherfore she humbly represent to their Lordships that seeing nothing of neglect as to care or education, or alteration of her condition can be laid to her charge, and that such requisition insinuat a difference betwixt the Tutors and her, and that therby she and her son, are afraid of other designs and sudden surpryzers of him going to or comeing from his Schools and exercises Craving therfore it might please their Lordships that Seeing She is Mother and Tutor, and therby had the undoubted right to the Custodie of her Son, and that the other Tutors concurr with her, and that his Curators are already named by his Father, To give her and him their Lordships protection, and to authorize her to keep him till his pupillarity expyre and he have the disposall of himselfe, and so to remove her fears and jealousies which otherwayes are unavoidable, as the said petition bears, Which petition being upon the twenty third day of January Jaj viic and fyve years, read in presence of the saids Lords, They appoynted and Ordained the petitioner to have the Custody and keeping of James Earle of Southesk her son, and have Discharged and heirby Discharges any person whatsomever to meddle with or disquiet the petitioner in the peaceable possession of the said Custody and keeping of the said Earle of Southesk as they will be answerable on their highest perill, untill the said petition and answers if any be given in be advysed by the saids Lords, and allowes the rest of the Earles Tutors to See and answer the petition again Thursday nixt peremptorie, Accordingly there was a representation by way of answer given in by the Earle of Home and Northeske the Lord St Clair, My Lord Rankeillor, and Mr James Martine Tutors to the Earle of Southesque, Shewing The Deceast Charles Earle of Southesk by his nomination of Tutory did nominat and appoynt the persons above, with the Earle of Lauderdale, and Countess of Southesque, and some others, to be Tutors and Curators to his Son the present Earle and appoynted any two of them to be a Quorum, the said Mr James Martine being alwayes one, whom he likewise Ordains to be Manager of his said Son, and all his affairs and actor therin, as the said nomination doth expressly bear, The person above having accepted they proceeded with all imaginable respect toward the Countess, and did aggree frankly that she Should have the keeping and education of her Son to the age of Twelve, which was indeed a Concert, that after that age he Should be at the disposall of his Tutors in order to a free and liberall education, And this was done by act of Sederunt of the Tutors, to which both the Earle of Lauderdale and Countess are Subscrybeing, and farder the Tutors ventured upon giving to the Countess Fyve thousand merks a year, for the Earles maintenance tho he was then only seven years of age, by way of advance, which was above what would have been modified by any judge And besydes gave her, the Tack and possession of the maynes of Kinnaird, with her Lords haill Stocking theronboll, and that at rate far below the value for both and wherof my Lady Still retain’s the possession, as also She was allowed to reside in the house of Kinnaird to which She had no right, and was also allowed the use of the whole furniture and moveables of the house Such was the respect the Tutors bear to My Lady, and refused her nothing that might anywayes tend to her Satisfaction, besydes her ease and conveniency. The Tutors Shall not take notice, that they have not mett with a Suitable return, for they have all a deference and respect to her Ladyship, But insofarras they were intrusted by the defunct, and their office and duty calls them to, they could not but concern themselves in the education of the Earle, and therfore in pursuance of the abovementioned Sederunt, to which the Countess is Consenter They resolved that the Earles person Should be delivered up to them, that they might take care of his having the benefite of a liberall education at Schools and Colledges and that now Considering his age, he ought not to be keeped under her Government, or the Government of Women, and to this the generallity of the Tutors aggreed and sett down their act of Sederunt to that purpose, which was Solemnly Subscryved by them all, and also by the Earle of Lauderdale, and made intimation therof to the Countess, and civilly requyred her, and besydes their former unanimous resolution, they were the more engadged to this that the Countess contrary to the Tutors inclination and orders brought over her son heire, and maintains him under that ane and authority that he hes not been allowed these Two Winters to See any of his Tutors, These with many other considerations hes moved his Tutors after requyreing the Countess by Instrument, to raise and execute a Summonds of exhibition, and delivery of the Earles person to them befor the Lords of Session that the Earles might be bred and educat according to his Rank and quality, and have a free and liberall education suitable to his age, and the Law, and daylie practique in such cases, and to which the Countess had plainly already Consented by Subscrybeing the act of sederunt; wherin the Tutors did allow the Custody of her son to the age of Twelve, and that from thence forth, he was to be delivered up to his Tutors to be educat at schools and universities as they Should think fitt, And therfore humbly entreated that the Countess her petition might be remitted to the Judge Ordinar befor whom ther is already a depending proces for exhibition and delivery of the Earles person, and in the mean tyme, if their Lordships please for their Satisfaction, and their exoneration, the Tutors are Satisfied to meet befor any of their number. they should appoynt to justifie all the poynts of this representation; The Lords of her Majesties privie Councill having upon the day and date of thir presents Considered the above petition given in to them by Mary Countess of Southesque, with ane representation by way of answer, therto by the Earles of Home, and Northesk, The Lord Sinclair, the Lord Rankeillor, and Mr James Martine Tutors to the Earle of Northesque, The Lord Sinclair, the Lord Rankeillor and Mr James Martine Tutors to the Earle of Southesque, and the samen with the former deliverance upon the Countess petition, Being read in their presence, The saids Lords have appoynted and Ordained and heirby appoynts and Ordains the petitioner to have the Custody and keeping of James Earle of Southesque her Son during the years of his pupillarity, and ay and while he attaine to Fourteen years compleat.

1. NRS, PC2/28, 361r-362v.

1. NRS, PC2/28, 361r-362v.

Sederunt, 25 January 1705, Edinburgh

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Edinburgh 25th January 17051 2

D1705/1/173

Sederunt

Lord Chancellor; Marquis of Annandale P:C:; Earl of Rothes P:S:; Earl of Crafurd; Earl of Sutherland; Earl of Buchan; Earl of Haddingtoun; Earl of Lauderdale; Earl of Loudoun; Earl of Findlater; Earl of Leven; Earl of Dunmore; Earl of Ruglen; Lord Belhaven; Lord Advocat; Lord Thesaurer Deput; Lord Justice Clerk; Lord Halcraig; Lord Anstruther; Lord Phesdo; Mr Fra: Montgomery; Laird of Ormistoun younger; Lord Provost of Edinburgh

Edinburgh 25th January 17051 2

D1705/1/173

Sederunt

Lord Chancellor; Marquis of Annandale P:C:; Earl of Rothes P:S:; Earl of Crafurd; Earl of Sutherland; Earl of Buchan; Earl of Haddingtoun; Earl of Lauderdale; Earl of Loudoun; Earl of Findlater; Earl of Leven; Earl of Dunmore; Earl of Ruglen; Lord Belhaven; Lord Advocat; Lord Thesaurer Deput; Lord Justice Clerk; Lord Halcraig; Lord Anstruther; Lord Phesdo; Mr Fra: Montgomery; Laird of Ormistoun younger; Lord Provost of Edinburgh

1. NRS, PC2/28, 360v.

2. This heading is given twice, but nothing is written under the first appearance.

3. NRS, PC2/28, 361r.

1. NRS, PC2/28, 360v.

2. This heading is given twice, but nothing is written under the first appearance.

3. NRS, PC2/28, 361r.

Decreet, 23 January 1705, Edinburgh

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Edinburgh 23d January 1705

D1705/1/161

Decreet

Decreit David McCulloch etc against Bayne of Tulloch

Anent the petition given in and presented to the Lords of her Majesties privie Councill By David MacCullochs Shewing That it is knowen to some of their Lordships number, and evident by the Councill minuts, That their petitioners were obliedged in December last, and the dead of Winter, to the extream hazard of their lives and detriment of their offices and affairs to Come to this place to bear witnes in the proces intented befor their Lordships, at the instance of John Bayne younger of Tulloch, and Sir John Dempster of Pitliver againest the Earle of Seaforth and other Defenders therin named And the Defenders not Compearing then, and consequently no ground to examine them, Their Lordships most justly Ordained the persuers to pay to them what is ordinarly allowed to Witnesses in Such cases, for the twenty two dayes they Spent in comeing and Staying heire, and returning home, But one way and other they so minched their Lordships allowance, that each of them gott but eleven pounds Sixteen Shilling Scots, albeit they could declaire upon oath that besyde horsehyre back and fore and their expense in this place, Fyftie pound Scots did not defray each of their charges, and now, albeit that none of the Defenders (except the Earle of Seaforth) are come to Toun, And that it was nottour to the persuers that they could not be apprehended, and that consequently there was no necessity to obliedge them to leave their offices and affairs at home, and expose themselves to any expense of tyme, travell, or money in comeing a Second tyme to this place, yet by vertue of a charge of horning given the Sherriffe principall of the Shyre of Ross (within which they reside) and his Deput, they were apprehendit by the said Deput, and obliedged either to go to prison, or find Caution under a considerable penalty of money, and to be carried prisoners from Shyre to Shyre To Compear befor their Lordships and bear Witness in the said proces the first Teusday of July, as the Declarations granted by the Sherriffe Depute to them therupon, and the Sherriffs report in the Clerks hands would testifie, where through they have been obleist to repair to this place Second tyme to no purpose, And therby (To the great detriment of their Trusts in their offices as Magistrat, Theasaurer and Collector of the said Burgh, and of their privat affairs) To expose themselves to great expense of tyme, travell and money in comeing and returning Two Hundered and Sixty myles, Besydes three Ferries and severall rivers and waters, and staying heire, and seeing ane instance of the like hard treatment can hardly be given, and that the persuers may at this rate expose them to frequent journeyes, and the greatest hardships, and that this is of dangerous consequences and preparative to the whole Liedges. Therfore Craving the Saids Lords to take the premisses to their Serious consideration, and to dismiss their petitioners, and ordaine them to be no farther troubled or molested in that matter And to modifie large expences to each of them both to make up their losses in the former, and the great charges of this their last journey, and their aboad heire both tymes, And appoynt the same to be payed to them without any defaliations, Else what their Lordships in justice will appoynt, will (as formerly) be made a Shamm and elusory as the said petition bears, Which petition being upon the twentie eighth day of December Jaj vic nynty nyne, read in presence of the saids Lords, They allowed the saids Laird of Tulloch and Pitlyver or their Lawiers and agents to See and answer the same, Therafter the said petition with answers therto being upon the nynth day of January One thousand seven hundereth years, again Considered by the saids Lords They nominated and appoynted the Lord Rankeillor and the Laird of Stevensone to be a Committie to Consider the said petition, And Recommends to them to modifie the expences to be payed to the saids witnesses, and to Consider by whom the samen should be paid, and Recommended to the said Committie to meet any tyme the morrow, and to report with their first conveniency And accordingly the said Committie having conforme to the Remitt made to them for that effect mett upon the eleventh day of January Jaj vic years, They made their report as followes, Patrick Lamb one of the petitioners Compeared befor the Committie, and Declaired he did not insist for his expences, But the Committie finds the Three other Witnesses petitioners did come up with the said Patrick Lamb, and that all of them were Six weeks from their comeing up to their returne having come voluntarly by the Sheriffs order, and the Committie finds there was a petition given in by the Witnesses upon the twentie Sixth day of July Jaj vic and nyntie eighth befor Tulloch gott his Decreit, and the bill is ordained to be Seen and answered, and upon the twenty second day of november therafter Tulloch obtains his Decreit for Fyve Hundereth pound Sterling of Fyne and Damnadges, but there was notice taken of these witnesses above Tulloch contends that having gotten his Decreit, he cannot be now Subject Summarly by bill to answer this petition for expenses, and the Earle of Seaforth Should be Subject and not he, Since the modification of his Damnadges was without respect to their Witnesses, Secundo Tulloch is Content to assigne the witnesses to as much of the fyne already imposed be the Decreit againest the Earle of Seaforth, as the said report bears, Therafter there being ane other petition given to the Saids Lords by the said David MacCulloch late Baillie, Donald Davidson, Thesaurer and Keneth Mackenzie Burgess of the Burgh of Fortross, Shewing That in the ryot persued by John Bain younger of Tulloch, and the Deceast Sir John Dempster of Pitliver, befor their Lordships in the years Jaj vic and nynty Seven and nynty eighth, againest the last deceast Earle of Seaforth, and other Defenders, Their petitioners (and the deceast Patrick Lamb then Collector of the Supply and excise of the said Burgh) were Cited as witnesses, and in obedience to the Citations were obliedged in December Jaj vic nynty Seven years, (in the dead of winter, and to the extream hazard of their lives and detriment of their offices and affairs) To Come to this place, and the Defenders not Compearing then, and there being consequently no occasion to examine them, Their Lordships most justly Ordained the persuers to pay to them what was ordinarly allowed to witnesses in Such cases, For the Twentie two dayes they spent in comeing to and staying in this place and returning home, But the persuers obliedged them to accept of eleven pound Sixtein Shilling Scots, or want altogether, albeit they could Declaire upon oath that besyde horse hyre fore and back, and their expense in this place, Fyftie pound Scots did not defray each of their charges, Fyve or six moneths therafter upon a charge given to the Sherriff principall and Deput of Ross (within whose Jurisdiction they reside) they being obliedged to give bond, under a considerable penaltie to Come a Second tyme to this place, and bear witnes in the said matter, or be convoyed from Shyre to Shyre, they and the said Deceast Patrick Lamb did accordingly come, and in their journey South and North, rode Two Hundered and Sixty miles, besydes passing and repassing three Ferries and severall Rivers, and none of the Defenders Compearing but the Earle of Seaforth, they were detained heire, and Spent in all Six weeks tyme To the great Detriment of their Trust and offces, as Magistrat, Theasaurer, and Collector of the said Burgh and of their privat affairs, They were at length examined, and Dismissed by their Lordships and dureing their stay heire The Said Bain of Tulloch haveing given him the said David MacCulloch Fourtie three pound eight Shilling Scots to help the defraying of his own and neighbours charges, Did take his Bond therfore untill the issue of ther proces, and their Lordships upon advyseing of the lybell and probation having Decerned the said Earle of Seaforth, To pay Fyve Hundereth pound sterling to Tulloch Bayne for the ryott, and all charges of the proces, which was thereafter Secured to Tulloch, but he refuseing to pay to the petitioners what was allowed ordinarly to witnesses, they applyed be petition to their Lordships Representing the above matter of fact, and Craving their Lordships would modifie expenses to them, for their very expensive long, and troublesome journeys first and last, Which being remitted to a Committie, and Tulloch alleadging he had not gott payment of the Fyve hundereth pound Sterling, and it being answered that he had gott Security therfore, The Committie by their report written and Subscrybed on the end of their petition, Found there were expenses for Six weeks due to them, and that Tulloch Should assigne to them So much of the Security he gott for the fyve hundereth pound sterling as would pay the saids expences as appears by the said petition and report heirwith produced, They living at a considerable distance, and justly fearing that their expences in Seeking the Saids expences would exceed what they could gett, have never moved in the said matter Since that tyme, untill now that albeit Tulloch had gott payment of, or transacted the Fyve Hundereth pound, and actually transacted with, and payed the said Patrick Lamb, as appears by the report, yet he not only refuses to pay them the expences, but also most unjustly assigned the forsaid bond granted by him the said David MacCulloch for the forsaid Fourtie three pound eight Shilling Scots, which he gave him to defray a pairt of his own and Neighbours expences, and took his Bond untill the issue of the proces as said is, to his Brother german, who had charged him with horning for payment, Therfore Craveing it might please their Lordships to take the premisses, with their former petition and report theron to consideration, and conforme therto Ordaine the said Bayne of Tulloch To make payment to them, of the forsaids expences for six weeks, and what further their Lordships should find just, for the great expensses and trouble they were exposed to both in the winter journey they made, and in seeking of the saids expences now and formerly by petitions and otherwayes, as the said petition bears Which petition being upon the eighteenth day of January instant read in presence of the saids Lords They appoynted and ordained the Samen to be intimate to John Bain younger of Tulloch, or to his advocats Factors and Agents by ane Nottar and Witnesses as effeirs, that the samen may be seen and answered nixt Councill day, Which petition being upon the day and date of their presents read in presence of the saids Lords with ane Instrument of Intimation to Baine of Tulloch advocats and agents, The saids Lords Doe heirby appoynt and Ordaine John Bain younger of Tulloch to content and pay to the petitioners each of them, the soume of Sixteen Shilling Scots money being horsemen for each day for the space of six weeks from their comeing up to their return, Extending in haill to each of the saids persons to the Soume of Threttie three pounds twelve Shilling, and appoynts and Ordaines the said Bain of Tulloch to make payment therof accordingly And appoynts letters of horning under the Signet of Councill upon six dayes to be direct heirupon.

Edinburgh 23d January 1705

D1705/1/161

Decreet

Decreit David McCulloch etc against Bayne of Tulloch

Anent the petition given in and presented to the Lords of her Majesties privie Councill By David MacCullochs Shewing That it is knowen to some of their Lordships number, and evident by the Councill minuts, That their petitioners were obliedged in December last, and the dead of Winter, to the extream hazard of their lives and detriment of their offices and affairs to Come to this place to bear witnes in the proces intented befor their Lordships, at the instance of John Bayne younger of Tulloch, and Sir John Dempster of Pitliver againest the Earle of Seaforth and other Defenders therin named And the Defenders not Compearing then, and consequently no ground to examine them, Their Lordships most justly Ordained the persuers to pay to them what is ordinarly allowed to Witnesses in Such cases, for the twenty two dayes they Spent in comeing and Staying heire, and returning home, But one way and other they so minched their Lordships allowance, that each of them gott but eleven pounds Sixteen Shilling Scots, albeit they could declaire upon oath that besyde horsehyre back and fore and their expense in this place, Fyftie pound Scots did not defray each of their charges, and now, albeit that none of the Defenders (except the Earle of Seaforth) are come to Toun, And that it was nottour to the persuers that they could not be apprehended, and that consequently there was no necessity to obliedge them to leave their offices and affairs at home, and expose themselves to any expense of tyme, travell, or money in comeing a Second tyme to this place, yet by vertue of a charge of horning given the Sherriffe principall of the Shyre of Ross (within which they reside) and his Deput, they were apprehendit by the said Deput, and obliedged either to go to prison, or find Caution under a considerable penalty of money, and to be carried prisoners from Shyre to Shyre To Compear befor their Lordships and bear Witness in the said proces the first Teusday of July, as the Declarations granted by the Sherriffe Depute to them therupon, and the Sherriffs report in the Clerks hands would testifie, where through they have been obleist to repair to this place Second tyme to no purpose, And therby (To the great detriment of their Trusts in their offices as Magistrat, Theasaurer and Collector of the said Burgh, and of their privat affairs) To expose themselves to great expense of tyme, travell and money in comeing and returning Two Hundered and Sixty myles, Besydes three Ferries and severall rivers and waters, and staying heire, and seeing ane instance of the like hard treatment can hardly be given, and that the persuers may at this rate expose them to frequent journeyes, and the greatest hardships, and that this is of dangerous consequences and preparative to the whole Liedges. Therfore Craving the Saids Lords to take the premisses to their Serious consideration, and to dismiss their petitioners, and ordaine them to be no farther troubled or molested in that matter And to modifie large expences to each of them both to make up their losses in the former, and the great charges of this their last journey, and their aboad heire both tymes, And appoynt the same to be payed to them without any defaliations, Else what their Lordships in justice will appoynt, will (as formerly) be made a Shamm and elusory as the said petition bears, Which petition being upon the twentie eighth day of December Jaj vic nynty nyne, read in presence of the saids Lords, They allowed the saids Laird of Tulloch and Pitlyver or their Lawiers and agents to See and answer the same, Therafter the said petition with answers therto being upon the nynth day of January One thousand seven hundereth years, again Considered by the saids Lords They nominated and appoynted the Lord Rankeillor and the Laird of Stevensone to be a Committie to Consider the said petition, And Recommends to them to modifie the expences to be payed to the saids witnesses, and to Consider by whom the samen should be paid, and Recommended to the said Committie to meet any tyme the morrow, and to report with their first conveniency And accordingly the said Committie having conforme to the Remitt made to them for that effect mett upon the eleventh day of January Jaj vic years, They made their report as followes, Patrick Lamb one of the petitioners Compeared befor the Committie, and Declaired he did not insist for his expences, But the Committie finds the Three other Witnesses petitioners did come up with the said Patrick Lamb, and that all of them were Six weeks from their comeing up to their returne having come voluntarly by the Sheriffs order, and the Committie finds there was a petition given in by the Witnesses upon the twentie Sixth day of July Jaj vic and nyntie eighth befor Tulloch gott his Decreit, and the bill is ordained to be Seen and answered, and upon the twenty second day of november therafter Tulloch obtains his Decreit for Fyve Hundereth pound Sterling of Fyne and Damnadges, but there was notice taken of these witnesses above Tulloch contends that having gotten his Decreit, he cannot be now Subject Summarly by bill to answer this petition for expenses, and the Earle of Seaforth Should be Subject and not he, Since the modification of his Damnadges was without respect to their Witnesses, Secundo Tulloch is Content to assigne the witnesses to as much of the fyne already imposed be the Decreit againest the Earle of Seaforth, as the said report bears, Therafter there being ane other petition given to the Saids Lords by the said David MacCulloch late Baillie, Donald Davidson, Thesaurer and Keneth Mackenzie Burgess of the Burgh of Fortross, Shewing That in the ryot persued by John Bain younger of Tulloch, and the Deceast Sir John Dempster of Pitliver, befor their Lordships in the years Jaj vic and nynty Seven and nynty eighth, againest the last deceast Earle of Seaforth, and other Defenders, Their petitioners (and the deceast Patrick Lamb then Collector of the Supply and excise of the said Burgh) were Cited as witnesses, and in obedience to the Citations were obliedged in December Jaj vic nynty Seven years, (in the dead of winter, and to the extream hazard of their lives and detriment of their offices and affairs) To Come to this place, and the Defenders not Compearing then, and there being consequently no occasion to examine them, Their Lordships most justly Ordained the persuers to pay to them what was ordinarly allowed to witnesses in Such cases, For the Twentie two dayes they spent in comeing to and staying in this place and returning home, But the persuers obliedged them to accept of eleven pound Sixtein Shilling Scots, or want altogether, albeit they could Declaire upon oath that besyde horse hyre fore and back, and their expense in this place, Fyftie pound Scots did not defray each of their charges, Fyve or six moneths therafter upon a charge given to the Sherriff principall and Deput of Ross (within whose Jurisdiction they reside) they being obliedged to give bond, under a considerable penaltie to Come a Second tyme to this place, and bear witnes in the said matter, or be convoyed from Shyre to Shyre, they and the said Deceast Patrick Lamb did accordingly come, and in their journey South and North, rode Two Hundered and Sixty miles, besydes passing and repassing three Ferries and severall Rivers, and none of the Defenders Compearing but the Earle of Seaforth, they were detained heire, and Spent in all Six weeks tyme To the great Detriment of their Trust and offces, as Magistrat, Theasaurer, and Collector of the said Burgh and of their privat affairs, They were at length examined, and Dismissed by their Lordships and dureing their stay heire The Said Bain of Tulloch haveing given him the said David MacCulloch Fourtie three pound eight Shilling Scots to help the defraying of his own and neighbours charges, Did take his Bond therfore untill the issue of ther proces, and their Lordships upon advyseing of the lybell and probation having Decerned the said Earle of Seaforth, To pay Fyve Hundereth pound sterling to Tulloch Bayne for the ryott, and all charges of the proces, which was thereafter Secured to Tulloch, but he refuseing to pay to the petitioners what was allowed ordinarly to witnesses, they applyed be petition to their Lordships Representing the above matter of fact, and Craving their Lordships would modifie expenses to them, for their very expensive long, and troublesome journeys first and last, Which being remitted to a Committie, and Tulloch alleadging he had not gott payment of the Fyve hundereth pound Sterling, and it being answered that he had gott Security therfore, The Committie by their report written and Subscrybed on the end of their petition, Found there were expenses for Six weeks due to them, and that Tulloch Should assigne to them So much of the Security he gott for the fyve hundereth pound sterling as would pay the saids expences as appears by the said petition and report heirwith produced, They living at a considerable distance, and justly fearing that their expences in Seeking the Saids expences would exceed what they could gett, have never moved in the said matter Since that tyme, untill now that albeit Tulloch had gott payment of, or transacted the Fyve Hundereth pound, and actually transacted with, and payed the said Patrick Lamb, as appears by the report, yet he not only refuses to pay them the expences, but also most unjustly assigned the forsaid bond granted by him the said David MacCulloch for the forsaid Fourtie three pound eight Shilling Scots, which he gave him to defray a pairt of his own and Neighbours expences, and took his Bond untill the issue of the proces as said is, to his Brother german, who had charged him with horning for payment, Therfore Craveing it might please their Lordships to take the premisses, with their former petition and report theron to consideration, and conforme therto Ordaine the said Bayne of Tulloch To make payment to them, of the forsaids expences for six weeks, and what further their Lordships should find just, for the great expensses and trouble they were exposed to both in the winter journey they made, and in seeking of the saids expences now and formerly by petitions and otherwayes, as the said petition bears Which petition being upon the eighteenth day of January instant read in presence of the saids Lords They appoynted and ordained the Samen to be intimate to John Bain younger of Tulloch, or to his advocats Factors and Agents by ane Nottar and Witnesses as effeirs, that the samen may be seen and answered nixt Councill day, Which petition being upon the day and date of their presents read in presence of the saids Lords with ane Instrument of Intimation to Baine of Tulloch advocats and agents, The saids Lords Doe heirby appoynt and Ordaine John Bain younger of Tulloch to content and pay to the petitioners each of them, the soume of Sixteen Shilling Scots money being horsemen for each day for the space of six weeks from their comeing up to their return, Extending in haill to each of the saids persons to the Soume of Threttie three pounds twelve Shilling, and appoynts and Ordaines the said Bain of Tulloch to make payment therof accordingly And appoynts letters of horning under the Signet of Councill upon six dayes to be direct heirupon.

1. NRS, PC2/28, 358r-360v.

1. NRS, PC2/28, 358r-360v.

Act, 23 January 1705, Edinburgh

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Edinburgh 23d January 1705

D1705/1/151

Act

Act appoynting a Birthbrieff to be extendd in favours of Master Alexander Marfield

Anent the petition given in and presented to the Lords of her Majesties privie Councill, By Master Alexander Marfield principall Secretary of State to his Highness the Duke of Zell, Shewing That where Alexander Marfield alias Mcphaill the petitioners Father having been a Souldier in Germany did marry a Lady of a noble Family called Attandelslohens in the Country of Zell, and the petitioner being to obtain a Birthbrieff as to the Descent of his said Father under the great Seall of Scotland, which is easily to be found He being Descended of the noble Family of Southerland by his mother, the petitioners Grandmother, and of the noble Family of Mckayes Lord Rae on the Fathers syde, as is verified by good and authentick Documents and attestations of persons of the best Rank, Therfore Craveing The Saids Lords to give order and warrant to the Director of her Majesties Chancellary and his Deputs to Record the Geanologie of the Petitioners Father, and to the Lord Chancelor and his Deputs to append the Great Seall therto, And to the Lyon King at Armes, Heraulds and Herauld painters etc To Blazon and paint the severall Coats of Armes off the Families mentioned in the Brieff to the end, the Nobilitie of the petitioners descent by his Father and Grandmother may appear in Forreigne Countries where (by the providence of God) he is placed Conforme to the saids Lords their usuall Custome in the lyke cases, as the said petition bears, The Lords of her Majesties privie Councill haveing Considered the above petition given in to them by Master Alexander Marfield principall Secretary of State to his Highness the Duke of Zell, and the samen with ane Certificat of the petitioners Genologie, and Descent under the hands of the Earles of Southerland, and Lauderdale, Ludovick Grant of that Ilk, and David Southerland of Kinald, dated in the moneth of January instant being Read in their presence, The Saids Lords Doe heirby give order and warrand to the Director of her Majesties Chancellary and his Deputs to extend and expede a Birth Brieffe in the petitioners favours Conforme to the forsaid Certificat, And to the Keeper of the great Seall and his Deputs to append the Samen therto

Edinburgh 23d January 1705

D1705/1/151

Act

Act appoynting a Birthbrieff to be extendd in favours of Master Alexander Marfield

Anent the petition given in and presented to the Lords of her Majesties privie Councill, By Master Alexander Marfield principall Secretary of State to his Highness the Duke of Zell, Shewing That where Alexander Marfield alias Mcphaill the petitioners Father having been a Souldier in Germany did marry a Lady of a noble Family called Attandelslohens in the Country of Zell, and the petitioner being to obtain a Birthbrieff as to the Descent of his said Father under the great Seall of Scotland, which is easily to be found He being Descended of the noble Family of Southerland by his mother, the petitioners Grandmother, and of the noble Family of Mckayes Lord Rae on the Fathers syde, as is verified by good and authentick Documents and attestations of persons of the best Rank, Therfore Craveing The Saids Lords to give order and warrant to the Director of her Majesties Chancellary and his Deputs to Record the Geanologie of the Petitioners Father, and to the Lord Chancelor and his Deputs to append the Great Seall therto, And to the Lyon King at Armes, Heraulds and Herauld painters etc To Blazon and paint the severall Coats of Armes off the Families mentioned in the Brieff to the end, the Nobilitie of the petitioners descent by his Father and Grandmother may appear in Forreigne Countries where (by the providence of God) he is placed Conforme to the saids Lords their usuall Custome in the lyke cases, as the said petition bears, The Lords of her Majesties privie Councill haveing Considered the above petition given in to them by Master Alexander Marfield principall Secretary of State to his Highness the Duke of Zell, and the samen with ane Certificat of the petitioners Genologie, and Descent under the hands of the Earles of Southerland, and Lauderdale, Ludovick Grant of that Ilk, and David Southerland of Kinald, dated in the moneth of January instant being Read in their presence, The Saids Lords Doe heirby give order and warrand to the Director of her Majesties Chancellary and his Deputs to extend and expede a Birth Brieffe in the petitioners favours Conforme to the forsaid Certificat, And to the Keeper of the great Seall and his Deputs to append the Samen therto

1. NRS, PC2/28, 357v-358r.

1. NRS, PC2/28, 357v-358r.

Warrant, 23 January 1705, Edinburgh

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Edinburgh 23d January 1705

D1705/1/141

Warrant

Warrand for extracting Anna Chiesleyes act of the former date

The Lords of her Majesties privie Councill Doe heirby appoynt and Ordaine the act odaining Anna Cheisley to be sett at libertie furth of the Correction house, and to depairt furth of the Kingdome, and not to return therto under the paine of being transported to her Majesties plantation to goe out and be extracted 2 of the former date.

Edinburgh 23d January 1705

D1705/1/141

Warrant

Warrand for extracting Anna Chiesleyes act of the former date

The Lords of her Majesties privie Councill Doe heirby appoynt and Ordaine the act odaining Anna Cheisley to be sett at libertie furth of the Correction house, and to depairt furth of the Kingdome, and not to return therto under the paine of being transported to her Majesties plantation to goe out and be extracted 2 of the former date.

1. NRS, PC2/28, 357v.

2. One illegible word scored out here.

1. NRS, PC2/28, 357v.

2. One illegible word scored out here.

Sederunt, 23 January 1705, Edinburgh

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Edinburgh 23d January 17051

D1705/1/132

Sederunt

Lord Chancelor; Marquis of Annandale P:C:; Earl of Rothes P:S:; Marquis of Lothian; Earl of Crafuird; Earl of Sutherland; Earl of Buchan; Lord Halcraig; Lord Anstruther; Earl of Lauderdale; Earl of Loudoun; Earl of Findlater; Earl of Leven; Earl of Forfar; Earl of Ruglen; Earl of Roseberry; Lord Phesdo; Livetenent General Ramsay; Earl of Hoptoun; Lord Belhaven; Lord President of Session; Lord Advocat; Lord Thesaurer Deput; Lord Justice Clerk; Lord Arnistoun; Mr Fra: Montgomery; Laird of Ormistoun younger

Edinburgh 23d January 17051

D1705/1/132

Sederunt

Lord Chancelor; Marquis of Annandale P:C:; Earl of Rothes P:S:; Marquis of Lothian; Earl of Crafuird; Earl of Sutherland; Earl of Buchan; Lord Halcraig; Lord Anstruther; Earl of Lauderdale; Earl of Loudoun; Earl of Findlater; Earl of Leven; Earl of Forfar; Earl of Ruglen; Earl of Roseberry; Lord Phesdo; Livetenent General Ramsay; Earl of Hoptoun; Lord Belhaven; Lord President of Session; Lord Advocat; Lord Thesaurer Deput; Lord Justice Clerk; Lord Arnistoun; Mr Fra: Montgomery; Laird of Ormistoun younger

1. NRS, PC2/28, 357v.

2. NRS, PC2/28, 357v.

1. NRS, PC2/28, 357v.

2. NRS, PC2/28, 357v.

Judicial Proceeding: protestation, 18 January 1705, Edinburgh

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Edinburgh 18th January 1705

D1705/1/121

Judicial Proceeding: protestation

Protestation Edmonstoun of Dunreath against Hamiltoun of Orbistoun

The which day in presence of the Lords of her Majesties privie Councill, Compeared Sir David Cunninghame Advocat as procurator for Archbald Edmonstoun of Duntreath executor Decerned and confirmed to wmquhill Archibald Edmonstoun of Duntreath his Father, and John Cunninghame writer to the Signet his Factor for his interest Chargers, And produced ane Coppie of letters of Suspension of the date the […] day of […] Jaj vic […] years purchast and raised at the instance of William Hamilton of Orbistoun, wherby the said wmquhill Archibald Edmonstoun of Duntreath the Chargers Father was Summond to have Compeared befor the saids Lords Bringing and produceing with him befor the saids Lords ane pretended Act obtained at his instance againest the said William Hamilton of Orbistoun befor the Saids Lords of the date the thretteinth day of May Jaj vic and eightie Six years, Giveing order and Warrant to the Said Laird of Orbistoun to deliver back to the Said wmquhill Archbald Edmondstoun of Duntreath the number and quantitie of eightie three bolls of oatmeall, or fyve pound Scots for ilk boll therof which was the current pryce allowed for the same at the time Together with the letters and charges raised theron, executory and indorsations therof to be seen and Considered by the Saids Lords of privie Councill, and to have heard and seen the Samen haill effect and execution therof Simpliciter Suspended upon the said Suspender in all tymecomeing for the reasons and causes contained in the said principall letters of Suspension, as the said Coppie therof of the date forsaid more fully bears, And Shew That the day of Compearance contained in the said Coppie was now of a long tyme bygone, And that the Said Suspender nor no other in his name Compeared to have produced the principall letters of Suspension, and to have insisted in the discussing therof, he being Satisfied for his said Client (who was euer confirmed to his deceast Father in the pryce of the said quantitie of Victuall) to have Satisfied the desyre Craved therby, and to have defended therintill untill the finall end and decision therof as effeirs, And therfore protested that his said Client might not be holden to answer to the saids principall letters of Suspension untill he were Summoned oft new again, and this expences payed, and also protested that the letters and Chargers already raised used and execute at the said wmquhill Archibald Edmonstoun of Duntreath his instance, and to which the said Archibald Edmonstoun of Duntreath has right as executer confirmed as said is, upon the forsaid Decreit against the said Suspender might take effect, and be putt to farther execution, conforme to the tenor therof in all poynts Befor admitting of which protestation The Saids Lords by their Interloquitor the Second of January instant Granted warrand to the Said Archibald Edmonstoun of Duntreath, and his said Factor to Intimat to the said William Hamiltoun of Orbistoun, To produce the Suspension at his instance againest the said wmquhill Archibald Edmonstoun in the Clerks of Councills hands betwixt and the Sixteenth day of January instant, And appoynted the samen to be intimat by ane Nottar and witnesses Conforme wherunto the Said Archibald Edmonstoun of Duntreath caused Intimat to the Said William Hamilton of Orbistoun personally to produce the said Suspension in maner forsaid, as in ane Instrument of intimation taken therupon of the date the fyfth day of January instant, under the hand of George Tayleor Nottar publict at more length is Contained, Thereafter upon the day and date of thir presents, The Saids Lords of her Majesties privie Councill having Considered that by their former Ordinance, they had appoynted Intimation to be made to the said Suspender that he might produce his Suspension, and be readie to debate theron, and that accordingly the samen being intimat and pairties called at the Barr, And the said Archibald Edmondstoun Compearing with his advocats and the Suspender faillieing to Compear and produce the Suspension through oft tymes called, and Intimation made to him personally for that effect The saids Lords of her Majesties privie Councell admitts and Grants protestation against the same and ordaines the letters, and charges raised or to be raised at the instance of the said Archibald Edmonstoun and John Cunninghame his Factor to be putt to farder execution against the Suspender ay and while the samen beis satisfied, and alse the saids Lords Decernes the said Suspender to make payment to the said Charger of the soume of Fyftein pound Scots of expensses Sustained by him in obtaining and extracting this present protestation, and Ordaines letters of horning under the Signet of Councill to be direct heirupon.

Edinburgh 18th January 1705

D1705/1/121

Judicial Proceeding: protestation

Protestation Edmonstoun of Dunreath against Hamiltoun of Orbistoun

The which day in presence of the Lords of her Majesties privie Councill, Compeared Sir David Cunninghame Advocat as procurator for Archbald Edmonstoun of Duntreath executor Decerned and confirmed to wmquhill Archibald Edmonstoun of Duntreath his Father, and John Cunninghame writer to the Signet his Factor for his interest Chargers, And produced ane Coppie of letters of Suspension of the date the […] day of […] Jaj vic […] years purchast and raised at the instance of William Hamilton of Orbistoun, wherby the said wmquhill Archibald Edmonstoun of Duntreath the Chargers Father was Summond to have Compeared befor the saids Lords Bringing and produceing with him befor the saids Lords ane pretended Act obtained at his instance againest the said William Hamilton of Orbistoun befor the Saids Lords of the date the thretteinth day of May Jaj vic and eightie Six years, Giveing order and Warrant to the Said Laird of Orbistoun to deliver back to the Said wmquhill Archbald Edmondstoun of Duntreath the number and quantitie of eightie three bolls of oatmeall, or fyve pound Scots for ilk boll therof which was the current pryce allowed for the same at the time Together with the letters and charges raised theron, executory and indorsations therof to be seen and Considered by the Saids Lords of privie Councill, and to have heard and seen the Samen haill effect and execution therof Simpliciter Suspended upon the said Suspender in all tymecomeing for the reasons and causes contained in the said principall letters of Suspension, as the said Coppie therof of the date forsaid more fully bears, And Shew That the day of Compearance contained in the said Coppie was now of a long tyme bygone, And that the Said Suspender nor no other in his name Compeared to have produced the principall letters of Suspension, and to have insisted in the discussing therof, he being Satisfied for his said Client (who was euer confirmed to his deceast Father in the pryce of the said quantitie of Victuall) to have Satisfied the desyre Craved therby, and to have defended therintill untill the finall end and decision therof as effeirs, And therfore protested that his said Client might not be holden to answer to the saids principall letters of Suspension untill he were Summoned oft new again, and this expences payed, and also protested that the letters and Chargers already raised used and execute at the said wmquhill Archibald Edmonstoun of Duntreath his instance, and to which the said Archibald Edmonstoun of Duntreath has right as executer confirmed as said is, upon the forsaid Decreit against the said Suspender might take effect, and be putt to farther execution, conforme to the tenor therof in all poynts Befor admitting of which protestation The Saids Lords by their Interloquitor the Second of January instant Granted warrand to the Said Archibald Edmonstoun of Duntreath, and his said Factor to Intimat to the said William Hamiltoun of Orbistoun, To produce the Suspension at his instance againest the said wmquhill Archibald Edmonstoun in the Clerks of Councills hands betwixt and the Sixteenth day of January instant, And appoynted the samen to be intimat by ane Nottar and witnesses Conforme wherunto the Said Archibald Edmonstoun of Duntreath caused Intimat to the Said William Hamilton of Orbistoun personally to produce the said Suspension in maner forsaid, as in ane Instrument of intimation taken therupon of the date the fyfth day of January instant, under the hand of George Tayleor Nottar publict at more length is Contained, Thereafter upon the day and date of thir presents, The Saids Lords of her Majesties privie Councill having Considered that by their former Ordinance, they had appoynted Intimation to be made to the said Suspender that he might produce his Suspension, and be readie to debate theron, and that accordingly the samen being intimat and pairties called at the Barr, And the said Archibald Edmondstoun Compearing with his advocats and the Suspender faillieing to Compear and produce the Suspension through oft tymes called, and Intimation made to him personally for that effect The saids Lords of her Majesties privie Councell admitts and Grants protestation against the same and ordaines the letters, and charges raised or to be raised at the instance of the said Archibald Edmonstoun and John Cunninghame his Factor to be putt to farder execution against the Suspender ay and while the samen beis satisfied, and alse the saids Lords Decernes the said Suspender to make payment to the said Charger of the soume of Fyftein pound Scots of expensses Sustained by him in obtaining and extracting this present protestation, and Ordaines letters of horning under the Signet of Councill to be direct heirupon.

1. NRS, PC2/28, 356v-357v.

1. NRS, PC2/28, 356v-357v.

Commission by the Council, 18 January 1705, Edinburgh

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Edinburgh 18th January 1705

D1705/1/111

Commission by the Council

Comission In favours of Mr Dougall Stewart To be Stewart of the Stewartrie of Monteith

The Lords of her Majesties privie Councill Considering That the office of Stewart principall of the Stewartie of Monteith was Vacant and none exerceing the same in respect of Charles Earle of Murray etc principall Stewart of the said Stewartry (and so ought to appoynt ane Stewart therin) his being unqualified, and not haveing Sworne and Subscryved the oath of alleadgance to her Majesty, nor having Signed the assurance Conforme to the Acts of parliament and proclamations of Councill made theranent, Therfore To have made 2 Constitute, and Ordained, Lykeas The saids Lords of her Majesties privie Councill by these presents Makes Constitutes and Ordaines Master Dougall Stewart Advocat, to be Stewart principall of the said Stewartrie of Monteith, Giveing and Granting unto him (dureing the Councills pleasure, only, or ay and while the said Earle of Murray or his Successors be quallified in the termes of the saids Acts of Parliament, and proclamations of Councill) The office of Stewart principall of the said Stewartry of Monteith, with all and sundrie powers, jurisdictions priviledges, preheminencies, Fies, duties, casualities, profites, liberties and Immunities whatsoever therto belonging as the Samen were possest and enjoyed by any proceiding Stewart principall of the forsaid Stewartrie with power to the said Mr Dougall Stewart Dureing the space forsaid to use and exerce the said office of Stewart principall within the said Stewartrie, By Sitting and holding Coutrs, Judgeing, Decydeing and Determineing in all actions causes alse well civill as Criminall, Bloods, and ryotts, and upon lyfe and limb, and all other actions and affairs pertaining to the said office of Stewart principall of the said Stewartrie alse freely and fully in all respects and conditions as any other Stewart of the Said Stewartrie was in use, and had right to doe of befor, And to make creat and Substitute Deputs and Substituts under him in the aforsaid office (for whom he is to be answerable) With Clerks, officers, Serjants Dempsters, and other members of Court, and the samen as oft as need beis to alter and change, and to Intromett with uplift and uptake all Fees, Casualities Commodities Duties, and profites belonging to the said office dureing the space abovementioned, With all the bloodwitts, Escheats, and Amerciaments of the Said Court of Stewartrie, And generally with power to the said Mr Dougall Stewart as Stewart principall of the said Stewartrie of Monteith to doe use and exerce all and sundrie other things concerning pertaineing and belonging to the said office of Stewart principall of the Said Stewartrie dureing the space forsaid as fully and freely in all respects, as any other Stewart of the Said Stewartrie has done used or exerced The Said Master Dougall Stewart befor he enter to exerce the said office of Stewart principall of the Said Stew Stewartrie of Monteith first Swearing the oath of alleadgance, and Signing the same with the assurance to her Majestie, Conforme to the acts of parliament and proclamations of Councill made theranent, Given at Edinburgh the eighteenth day of January Jaj vic and fyve years.

Edinburgh 18th January 1705

D1705/1/111

Commission by the Council

Comission In favours of Mr Dougall Stewart To be Stewart of the Stewartrie of Monteith

The Lords of her Majesties privie Councill Considering That the office of Stewart principall of the Stewartie of Monteith was Vacant and none exerceing the same in respect of Charles Earle of Murray etc principall Stewart of the said Stewartry (and so ought to appoynt ane Stewart therin) his being unqualified, and not haveing Sworne and Subscryved the oath of alleadgance to her Majesty, nor having Signed the assurance Conforme to the Acts of parliament and proclamations of Councill made theranent, Therfore To have made 2 Constitute, and Ordained, Lykeas The saids Lords of her Majesties privie Councill by these presents Makes Constitutes and Ordaines Master Dougall Stewart Advocat, to be Stewart principall of the said Stewartrie of Monteith, Giveing and Granting unto him (dureing the Councills pleasure, only, or ay and while the said Earle of Murray or his Successors be quallified in the termes of the saids Acts of Parliament, and proclamations of Councill) The office of Stewart principall of the said Stewartry of Monteith, with all and sundrie powers, jurisdictions priviledges, preheminencies, Fies, duties, casualities, profites, liberties and Immunities whatsoever therto belonging as the Samen were possest and enjoyed by any proceiding Stewart principall of the forsaid Stewartrie with power to the said Mr Dougall Stewart Dureing the space forsaid to use and exerce the said office of Stewart principall within the said Stewartrie, By Sitting and holding Coutrs, Judgeing, Decydeing and Determineing in all actions causes alse well civill as Criminall, Bloods, and ryotts, and upon lyfe and limb, and all other actions and affairs pertaining to the said office of Stewart principall of the said Stewartrie alse freely and fully in all respects and conditions as any other Stewart of the Said Stewartrie was in use, and had right to doe of befor, And to make creat and Substitute Deputs and Substituts under him in the aforsaid office (for whom he is to be answerable) With Clerks, officers, Serjants Dempsters, and other members of Court, and the samen as oft as need beis to alter and change, and to Intromett with uplift and uptake all Fees, Casualities Commodities Duties, and profites belonging to the said office dureing the space abovementioned, With all the bloodwitts, Escheats, and Amerciaments of the Said Court of Stewartrie, And generally with power to the said Mr Dougall Stewart as Stewart principall of the said Stewartrie of Monteith to doe use and exerce all and sundrie other things concerning pertaineing and belonging to the said office of Stewart principall of the Said Stewartrie dureing the space forsaid as fully and freely in all respects, as any other Stewart of the Said Stewartrie has done used or exerced The Said Master Dougall Stewart befor he enter to exerce the said office of Stewart principall of the Said Stew Stewartrie of Monteith first Swearing the oath of alleadgance, and Signing the same with the assurance to her Majestie, Conforme to the acts of parliament and proclamations of Councill made theranent, Given at Edinburgh the eighteenth day of January Jaj vic and fyve years.

1. NRS, PC2/28, 355v-356v.

2. The word ‘and’ scored out here.

1. NRS, PC2/28, 355v-356v.

2. The word ‘and’ scored out here.

Decreet, 18 January 1705, Edinburgh

Posted on by

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.

Sederunt, 18 January 1705, Edinburgh

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Edinburgh 18th January 17051

D1705/1/92

Sederunt

Lord Chancelor; Marquis of Annandale P:C:; Earl of Southerland; Earl of Loudoun; Earl of Leven; Earl of Forfar; Earl of Ruglen; Lord Yester; Lord Belhaven; Lord President of Session; Lord Thesaurer Deput; Lord Arnistoun; Lord Halcraig; Lord Anstruther; Lord Phesdo; Mr Fra: Montgomry; Lord Provost of Edinburgh

Edinburgh 18th January 17051

D1705/1/92

Sederunt

Lord Chancelor; Marquis of Annandale P:C:; Earl of Southerland; Earl of Loudoun; Earl of Leven; Earl of Forfar; Earl of Ruglen; Lord Yester; Lord Belhaven; Lord President of Session; Lord Thesaurer Deput; Lord Arnistoun; Lord Halcraig; Lord Anstruther; Lord Phesdo; Mr Fra: Montgomry; Lord Provost of Edinburgh

1. NRS, PC2/28, 348v.

2. NRS, PC2/28, 348v.

1. NRS, PC2/28, 348v.

2. NRS, PC2/28, 348v.