Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the twentie third of Jwny J^aj vi^c nyntie Six yeirs

D1696/6/22

D1696/6/22¹

Judicial Procedure

Remit Lithgow against Wilkiesones

Anent the lybell or Letters of complaint raised and perswed befor the Lords of his majesties privie Counsell at the instance of John Lithgow portioner of Mellross with concurse of Sir James Stewart his majesties Advocat for his highnes interest in the mater underwritten Makeing mentione That wher by the Lawes of this and all other well governed realms all Lawles force violence bangastrie oppressione and intrwsione To the prejudice of other mens rights and possessiones are prohibite as crymes to be Severely pwnished Speciallie when the Same proceeds upon a frawdulent contriveance and to the contempt of a Sentance of a Laufull Court And likewayes of the authoritie of the Supreame Cowrt And tends not only to the wrong and affront of the persone concerned but to occasione and creat great Disturbance in the church and assembly for Divyne Service Nevertheles it is of veritie that the said complainer haveing first taken a tack from his brother William Lithgow of his whole Lands and interest in the paroch of Mellross with the mansione house and seat of the kirk per expressum to indure for thrie yeirs which expyred at Mertimes J^aj vi^c nyntie four yeirs (according to which he Did possess the said seat with the Lands and houses) did about September the foirsaid yeir purchase the heretable and irredeimable right of the same Lands and mansione house with ther haill pairts and pendicles as they had bein by him formerly possest which certainlie Did include the Seat of the kirk not only as naturallie annexed to the Lands and mansione house The Disponer haveing no other Land remaineing within the paroch But also because it was a cleare pendicle which the said Complainer formerlie possest by vertue of his tack And therfore ther was no need to express the Seat Distinctly Yet Alexander Willkiesone the writer imployed to write the Dispositione being Sone to Thomas Wilkiesone clerk to the regalitie Court of Mellross And haveing Land in the same paroch Designeing to catch advantadge by omitting to express the seat in the foirsaid Dispositione ² about the twentieth of September yeir of God foirsaid about two Dayes efter that the said Complainer was infeft upon it applyes to the said William Lithgow and tells him that the seat was omitted in the Disposition that he had made to the said complainer his brother And therupon elicites from him a seperat and express Dispositione to the seat by itself and sends it to his brother James resideing at Mellross who by the said Alexanders orders and in his name invades the possessione of the forsaid Seat belonging to the complainer and breakeing it up by force the tyme of Divyne Service by himself without any order of Law Wherupon the Complainer finding himself openly insured and affronted by this violent intrusione upon his possessione Sumonds the said James to ansuer befor the Shirreff court wher James compeareing was fownd gwiltie of a ryot and fyned for the Same And ordained to Desist from his forsaid intrusione And to Suffer the said complainer to possess peaceablie untill removed by order of Law But James Wilkiesone and Alexander his brother and constitwent not acqwiesceing in the foirsaid Sentance And haveing ther father clerk to the regalitie Court of Mellross Doe most wnwarrantably Comence a proces of declarator befor the baillie of regalitie as if aither he had bein Superior to the Shirreff his court or anywise competent to a declarator of right Both which are false in Law And John Halyburtowne of Mwirehouse Law Baillie Sustaineing process Did furder proceed to midnaill the Seat Exclwdeing both pairties from it by way of seqwestratione Dureing the Dependence of the process which was plainly wnwarrantable on the baillies pairt Seing it was not at all in his power to Disturb or interrupt the said Complainers possession recently awthorized by the Shirreffs Decreit as said is wnles that the complainers right had bein declaired void and nwll by the Lords of Sessione And the complainer therupon Decerned to remove But the said complainer finding himself thws opprest by the baillies wnwarrantable proceeding applyes to the Lords of Sessione and obtaines ane Advocatione which Advocatione was Duely presented in court by the Complainer himself and instruments requyred theron in the clerks hands Likeas it was publictly read and Mr Thomas Byres the baillie deput got a full coppie therof and marked with his hand upon the principall compared As the principall Advocatione prodwced will testifie But the persewers father the clerk pretending that the process was at Edinburgh Did not only then bwt ever Since refwse to give to the said complainer ane extract of the instruments that he had taken All which can be proven per membra curia above exeptione And the trweth is process did sist upon productione of the foirsaid advocatione for some weeks untill that the said John Halybwrtoune Baillie deput upon the twentie third or ane or other of the Dayes of the moneth of March J^aj vi^c nyntie five neglecting and Despiseing the awthoritie of the forsaid advocatione went himself accompanyed with the said Thomas Wilkiesone the clerk and James Wilkiesone his Sone and cawsed George Blaikie his officer Stryk off the complainers Lock from the Seat and putt ane other Lock upon it and so gave to the said James a Simwlat possessione wherupon also James took instruments in behalf of his brother Alexander And so they wnwarrantably and violently intruded into the complainers right and possessione by manifest oppressione and bangastrie reqwyreing the said complainer to desist from his possessione under the paine of Ane Hundereth punds Scotts All this was done not only against right But in high contempt of the Shirreffs foirsaid Decreit As also of the foirsaid advocatione Directed by the Deliverance of the Lords of Sessione And duely intimat as said is Likeas the said complainer being violently ejected in maner foirsaid The Said James and Alexander Wilkiesones have ever Since possest the Said Seat Debarring the complainer als much as in them by both from the Seat and kirk By all which it is manifest that the said Alexander Wilkiesone and James and Thomas Wilkiesones ther father As also the said John Halyburtowne the Baillie deput was gwiltie of a manifest ryot violence oppressione and intrustione or atleast airt and pairt therof for which they owght not only to be decerned In the Soume of Ane Thowsand merks for the said complainers Damnadges But also furder pwnished in ther persones and goods to the example and terror of others to comit the lyke in tyme comeing As Likewayes ordained to repossess the said Complainer in the said Seat and to desist from molesting him in his said possessione And to find Cawtione for that effect As the Saids Lords of privie Counsell Shall appoint Lykeas the saids Lords of privie Counsell by ther act of the Date the Eleventh of Febrwary instant Did continwe the above complaint or lybell in respect it was Long since the Same was first raised And ordained the Samen to be renwed And the defenders to be of new cited hereon as the said act bears And anent the charge given to the saids Defenders to have compeared personallie befor the Saids Lords of privie Cownsell at ane certaine Day now by past to have answered to the grownd of the above complaints And to have heard and Sein Such order and course taken theranent As the Saids Lords Should think fitt wnder the paine of rebellione As in the principall Letters of complaint raised in the said mater and executiones therof at more lenth is contained Which lybell being upon the Day and date hereof called in presence of The Saids Lords of his majesties privie Counsell And the persewer Compeareing personally with Sir Patrick Home and Mr David Cwningham his Advocats And the Said Alexander and James Wilkiesones and John Halyburtowne of Mwirehouse Law thrie of the defenders Compeareing also personallie with Mrs Hewgh and David Dallrimples ther Advocats The Saids Lords of his majesties privie Cownsell haveing heard the lybell read They heirby Remit the Subject mater of the lybell to be perswed and insisted in befor the Lords of Counsell and Session And that without necessitie of abideing the ordinary course of the roll