[1704/7/110]¹

Legislation

Act in favour of [Francis Herbert], countess dowager of Seaforth

Anent the petition given in and presented to his grace her majesty's high commissioner and the right honourable the estates of parliament by Frances, countess dowager of Seaforth, showing that when in the year 1684 the petitioner was married in England to the late [Kenneth MacKenzie], earl of Seaforth, she brought with her for portion £6,000 sterling really and truly paid and, by an article of their marriage contract, her lord and she were to be entertained for three years in her father [William Herbert], marquis of Powis's house, where indeed they were entertained for five years both freely and honourably, and on the other part the earl of Seaforth and his friends did agree in articles that the petitioner should have a jointure of £1,000 sterling by way of annuity payable in London, Paris or Brussels, for implementation whereof there was a disposition of a jointure annuity drawn up in Scotland, by the advice of the best lawyers, to be granted to the petitioner by the countess of Seaforth, elder, in whose person the nine preferable apprisings of the estate, all mentioned in the said disposition, were settled and upon this disposition duly subscribed the petitioner was infeft under the great seal. But a few years thereafter her lord, coming to die, leaving a son and a daughter of their marriage, when she thought to have entered into the possession of her jointure she found there was none to answer, or so much as to regard her for more than the space of two years after her lord's decease, in which time all the petitioner received out of the estate for herself and children was just £15 sterling. And further, when being thus constrained she raised actions of poinding the ground and for mails and duties before the lords of session, she had two interests as they call them thrown in, one by my lord justice clerk and another by Mr Robert Blackwood, merchant, who both alleged that the petitioner could be answered in nothing because her right did flow from a person that had no right, so that proceeding a not having (as they speak) they affirmed it to be null, and repeated their reduction prepared to fortify the allegation. The surprise of this demur was so much the greater that both the petitioner and all her friends and the best lawyers that advised her settlement never doubted but that her disposition and infeftment flowing from the old countess, who was known to have the only preferable right and to be in the entire possession of the estate, was unquestionably good and that her titles and rights were likewise as secure in her hands as the petitioner could wish, seeing that her interest as fiar (besides her near relation) far preferable to the petitioner's of a liferent annualrenter did wholly depend upon them, but so it was that the petitioner was sadly disappointed and necessitated to take a day to produce her authors' rights for to sustain her own. But the more she advanced in her pursuit, still the greater difficulty, for when she had taken out a diligence against the supposed havers and had procured both the countess herself and all others whom the petitioner could suspect to be examined upon oath, she could discover nothing save that probably the apprisings and the infeftments upon them were still extant and that the conveyances thereof to the trustees of the estate might also be found. Nor were their dispositions denuding them in favour of one Kenneth MacKenzie all wanting, but the principal and most necessary mid-couple, namely Kenneth MacKenzie's deed denuding him in favour of the countess the petitioner's author, was denied by all and could not be found by the outmost diligence the petitioner could use, whereupon the petitioner was forced to apply to the lords of session for the interim of an aliment until she might some way extricate herself out of such great and unexpected difficulties. But though it pleased their lordships to ordain her an aliment of £500 for one year, and then an aliment of another £500 for a second year, yet the petitioner may freely own it to his grace and their lordships that the first year, which is all she has received of this aliment, was in a manner wholly exhausted by diligences that she was forced to use before she could recover it. This being her present strait she is forced, being a poor desolate stranger so sadly afflicted and disappointed, to apply to his grace and their lordships for remedy, and thereupon the pursuer has raised an action before the parliament against the said Kenneth MacKenzie and others, hoping that this honourable court will do her the justice to cause the said Kenneth MacKenzie renew his foresaid deed which is abstracted or miscarried and upon which all the petitioner's right and security depends. As also, that the parliament will help her to recover these rights wanting which are so sadly withheld to the frustrating all her expectation. The petitioner shall not complain to his grace and their lordships that, notwithstanding of her great straits, yet by all she can learn the countess, who is her author and from whom she derives right, is still the possessor of the estate and nor shall she offer to obviate some other things that have been very unfavourably alleged against her, specially in order to her son. But this she freely declares to his grace and their lordships, that if she knew but how to subsist him as a gentleman only in this country she would use her outmost endeavours to bring him back, being firmly persuaded there can be nothing more advantageous, both for his interest and the petitioner's. But seeing his grace and their lordships perceive to what difficulty the petitioner is reduced, how she is postponed as to her right and straitened as to any appointment of aliment and, after all she has done, forced to enter into a new process before this honourable court if possibly that may afford her any relief, the petitioner most humbly implores his grace's and their lordships' commiseration and that at least in the meantime she may have an honourable aliment discerned and settled in her favour in such manner as this honourable court shall appoint, and the same to endure until the petitioner may recover her just right and attain to the possession of her jointure, and this the petitioner hoped that the parliament would find both to be just, equitable and favourable and withal such a necessary expedient as she cannot subsist without and has often been granted in the like cases. And, therefore, humbly craving his grace and their lordships to take the petitioner's sad condition into their serious consideration and to ordain her such an aliment as they should find just and in such a manner as may be effectual, specially seeing all parties concerned are sufficiently acquainted with this affair and appointments of this nature are both in use to be and must be summary in regard of the so pressing and visible necessity for it, as the said petition bears. Which petition and desire thereof, being read in the presence of his grace her majesty's high commissioner and the said estates of parliament, they, by their deliverance thereon 3 August instant, allowed the earl of Seaforth's creditors to see and answer the same. And the said petition, being this day again read in the presence of his grace her majesty's high commissioner and the right honourable the said estates of parliament, and there being no answers thereto and they being therewith well and ripely advised, they ordained and hereby ordain £500 sterling to be paid yearly to the petitioner Frances, countess dowager of Seaforth during the dependence of the foresaid process before the lords of session, and ordain letters of horning and other executorials needful to be direct hereupon for that effect against the factors, chamberlains, intromitters with and possessors of the estate of Seaforth. Extract.