[1705/6/77]*[print] [email] [cite] [preceding] [following]
Petition for Walter Lockhart of Kirkton moved, and a further stay of all execution against him for the sums contained in his petition granted.
Petition for [Frances Herbert], countess of Seaforth against [George MacKenzie], earl of Cromarty and Kenneth MacKenzie, again read and, after debate, the same remitted to the lords of session to be discussed by them summarily without abiding the course of the roll, which remit is as follows.
Her majesty's high commissioner and the estates of parliament, having heard the petition of Frances, countess dowager of Seaforth, humbly showing to them that her case being wholly extraordinary and such as requires a speedy remedy not to be obtained but by the justice and favour of the lord commissioner his grace and the estates of parliament, the petitioner must in all humility represent the same as follows.
She was married to the late [Kenneth MacKenzie], earl of Seaforth in the year [...], and by articles of marriage agreed, with the consent of all friends, there was to be settled upon her an annuity for her lifetime of £1,000 sterling yearly out of the estate of Seaforth. For performance of these articles and by the advice of the best lawyers in Scotland it was agreed that Isobel, countess dowager of Seaforth, mother to the said earl the petitioner's husband, and in whose person the right to the nine preferable apprisings of the estate of Seaforth was conveyed, should make the petitioner a settlement for the said £1,000 sterling jointure in the terms of the articles, and accordingly the said settlement was made wherein all these apprisings are mentioned with their conveyances in the person of the earl of Cromarty and other trustees, and from the said trustees to Mr Kenneth MacKenzie and from Mr Kenneth MacKenzie to the old countess, who thereupon conveys to the petitioner the foresaid annuity of £1,000 sterling of jointure and assigns her for that effect to the foresaid apprisings and infeftments thereon, and to the dispositions and procuratories granted by the apprisers and also by the said trustees. And upon the said dispositions and procuratories, the petitioner is infeft under the great seal, and her infeftment being thus expedited was sent to her friends in England as an undoubted and unquestionable security. But when it pleased God to remove the earl her husband by death in the year [1701], and when thereupon the petitioner expected to enter to the possession of her said jointure, she was refused and thereupon necessitated to send for her infeftments from England and to raise summons of poinding the ground and of mails and duties before the lords of session. And further, when she insisted in the said summons, [Roderick MacKenzie], lord Prestonhall compearing with an adjudication led against the old countess and the petitioner's foresaid husband as charged to enter heir, pretended her infeftment was one not having power, and that he had the only preferable right because the petitioner did not produce the foresaid apprisings and the conveyances thereof to the old countess the petitioner's author, whereupon her right and infeftment was founded, albeit it was manifest to all that these apprisings and conveyances being the great security of the fee of the estate could not be in the petitioner's hands who had only right to a liferent annuity, and for which she had all reason to repose an entire confidence in the old countess, her mother-in-law, and the other friends that they would preserve those apprisings and the conveyances thereof for the security of the fee, and also for her said liferent annuity. But the petitioner being thus disappointed and necessitated to take out diligences for recovering of the said apprisings and conveyances thereof, all that she obtained thereby was to get the Lord Cromarty's oath and deposition who testified fairly and honestly upon his foresaid trust and upon the conveyance, that he and the other trustees had made in favour of Kenneth MacKenzie; as also, to get Kenneth MacKenzie's oath and deposition how he was denuded in favour of the old countess, the pursuer's immediate author, but as for the old countess herself her oath and deposition availed the petitioner nothing since she disowned the having of these rights the petitioner wanted, whereupon she was necessitated to raise a new summons for making up the conveyances she wanted, either by obtaining the earl of Cromarty and the said Kenneth MacKenzie to renew their deeds that were wanting according to their foresaid depositions, otherwise to have the tenor thereof made up as the same was fully libelled in the summons raised for that effect. And in this summons the petitioner insisted with all diligence, but not being able to have the cause decided this last session she was left in an uncertainty that is but too obvious. She needs not tell his grace and their lordships what trouble and vast expense this affair has cost her, a stranger, now these [...] years bypast, and how that if it had not been first by the favour and equity of the lords of session and next by the justice and equity of the estates of parliament that she had got an aliment of £500 sterling yearly discerned to her during the dependence of her cause, she had been reduced to the greatest extremities. Also, even at present her necessities through bad payment are greater than she is willing to profess. But that which she must lay before his grace and their lordships, with all submission, is that they may observe by these circumstances that all her security depends upon the renewing of the foresaid deeds of conveyance by the Lord Cromarty and Kenneth MacKenzie, conforming to their oaths and declarations emitted thereupon, so that if they should come to die as all are mortal before the next winter session the petitioner must inevitably lose her jointure right forever, unless his grace and their lordships in whose power it only is do provide a remedy. And therefore, craving his grace and the honourable estates of parliament to take the matter to their consideration and since the petitioner has advanced her affair as much as possible before the lords of session, and that she is also hopeful that the Lord Cromarty is willing to renew his deed conforming to his oath and declaration emitted thereupon and that Kenneth MacKenzie will do the same, if authorised and ordained thereto by his grace and the honourable estates, to grant warrant to cite the said earl of Cromarty and Kenneth MacKenzie before his grace and the honourable estates for the effect foresaid, to prevent the irreparable hazard of their deaths, which his grace and the honourable estates of parliaments justice can only supply in the manner above-mentioned, according to justice, as the said petition bears.
Which being upon 8 August instant considered by her majesty's high commissioner and the said estates, they ordained the earl of Cromarty and the above-named Kenneth MacKenzie, and others concerned, to see and answer the same. And thereafter, on 22 August, they ordained the earl of Cromarty and the said Kenneth MacKenzie to see and answer against the second sederunt of the then next week, with certification, and this day her majesty's high commissioner and the said estates of parliament, having again considered the said petition and being therewith well and ripely advised, they remitted and do hereby remit to the lords of session to discuss the action above-mentioned summarily without abiding the course of the roll. Extract.