Edinburgh the Fifth day of January. J^aj vj^c nyntie thrie Post meridiem

D1693/1/7

D1693/1/7¹

Judicial Proceeding

Remitt The Countess Dowager of Lauderdale Against the Countes therof

Anent the Lybell raised and pursued before the Lords of their Majesties privy Councill be Elizabeth Countes Dowager of Lauderdale Makand Mentione That albeit by the uncontraverted law and practique of this and all other weell governed nationes, The violent and Illegall Disposessing of any person of their dwalling houses and other rights and possessiones, And the violent medling with and away carieing of furnitur houshold plenishing and other goods, dryveing away of their Catle and intromitting with their cornes, Hay, Sheep and others Be crymes of high natur and severly punishable nevertheless It is of veritie that the said pursuar being infeft by the deceast Charles Earle of Lauderdale in the house of Thirlstaine Castle, office houses, Parkes drawen teynds and others therto belonging, And haveing be vertue therof been in the peacable possesione of the same by dwalling with some of her Childrein and Servants in the said house; stocking and labouring of the parks, and draweing of the teynd shares Contained in the saids rights and Disposeing therupon peacably as her oun goods, And haveing her plenishing and furnitor setled and sett up in the said house of Thirlstaine Castle since the decease of her husband Untill the latter end of Aprill last at which tyme she haveing gone to the wells in England for recovering of her health and haveing left severall of her servants and her factor within the said house of Thirlestaine Castle to oversee and preserve her furnitur and plenishing that was therin, And to take care of her Catle and stock and oversee her Labouring and to Cutt doun her cornes and Hay and to Lead and draw the teynds therof, And of which the said pursuar hade been in possession as said is, True It is that Anna Countes of Lauderdale haveing in the pursuars absence in the moneths of May or June last by past come out to the said house of Thirlestaine under the pretence of Kyndnes and to divert and recreat her self for Some time in the Summar and haveing been kyndlie received by the puruars Servants as being her daughter in law, and served and waitted upon by them according to her qualitie, True It is that in the moneths of September or October last by past or one or other of the dayes of the said moneths when the pursuars Servants hade cutt doun her cornes for her oun use as they had done formerly the year preceiding, The said Anna Countes of Lauderdale Did violently and by a Convocatione of a number of men about fourtie persones or therby Stopt and debarr them from loading away the saids cornes, And did with her oun hands pull the Shaves out of the Cairts, and Caused these that ware Convocat with her doe the like, And did cause lead and Carie away the same for her oun use And did dispose therupon as she thought fitt And Likewayes Cary away the number of sixtie sheep or therby and Disposed upon the same, And did cause violently drive away the pursuars horsses Cowes and catles from off the ground of the land, And the saids Catle and horsses being for many dayes dryven up and doune therafter the Countrie, And the Hay and fodder which should have mantained them being violently taken away from the purusars servants in her absence, They were necessitate to sell the same at ane great and undervalue to prevent ther being sterved to death for want of food. Lykeas upon one or other of dayes of the said moneths of september or October, The said Anna Countes of Lauderdale did most violently and Illegally turne out the pursuars factor and her other servents out of the said house of Thirlstaine Castle and Caused shoot the gates against them; And when John Duncan the factor whom the pursuar hade appointed to Oversee the stock and labouring and to take care of the house and furnitur in her absence, Desyred libertie to come in to the said house of Thirlestaine to look after the same The said Anna Countes of Lauderdale Did come in persone to the gate accompanied with two or thrie servants with great Battons in their hands who did threaten to beat him if he Should offer to enter the same And therafter refused to allow Mr William Maitland the pursuars sone Libertie to enter the gates Lykeas the Said Anna Countes of Lauderdale Did by the same Illegall violence and oppression medle with all the pursuars houshold plenishing and furnitur for a considerable value and disposed upon a Considerable² part therof as she thought fitt, Wherby the said pursuar is reduced to geat straitts, she naither haveing house nor furniture for the accomodatione of hersel and famillie at the tyme By doeing quherof the said Anna Countes of Lauderdale Is guilty of ane open and manifast Ryot And Therfore she ought to be Decerned instantly to repone the pursuar to the possession of the said house of Thirlstaine Parks, and other therto belonging, And to restore back to her the haill furnitur and plenishing Cornes, Hay drawen teynds and sheep violently and Illegally Spulzied and intromitted with be her in alse good case and condition as they ware the tyme of the violent Spulzieing and away takeing the same or then to make payment to the pursuar of the value and pryce therof according as they are sett doune in the inventary And She Ought not only to be Decerned to cease and Desist from troubling the pursuar in the peacable possession therof for the futur, Bot likewayes to be Otherwayes censured as the Lords of privy Councill should think fitt to the example and teror of others to doe and Committ the like in tyme comeing As the said Lybell and executiones therof mor fully proports And Anent the charge given to the saids defenders to have Compeired before the saids Lords upon the twentie seventh day of December last To have answered to the poynts of the above Complaint and to have heard and seen such order and Course taken theranent as appertaines Under the paine of rebellion and putting of her to the horne Which Lybell being upon the twentie nynth day of the said moneth of December called in presence of the saids Lords, And the pursuar Compeiring be Sir David Thores and Master David Cuninghame her advocats, And the defender Compeiring be Sir James Ogilvie and Sir Robert Colt her advocats The Councill haveing Dispensed with the personall Compeirance of both pursuar and defender The Lords of their majesties privy Councill haveing Considered the above Lybell with two severall letters by the pursuar to the defender anent the defenders entering to the above house of Thirlstoune, And the pursuars advocats haveing given in a Declinator subscryved be the pursuar Wherby she Declynes the Earles of Lothian and Brodalbine from sisting or voteing in this Lybell In Respect they are maried to the defenders father sisters And haveing Considered the said declinator with the threteinth act of the thrid parliament of King Charles the second made anent Declinators, They Fand that the above Earles came not under the Compass of the desgrees mentioned in the said act of Parliament They being but uncles in law to the defender and the act of Parliament mentions only uncles, And not uncles in law, And Therfore Repelled the Declynator, And the defenders procurators Declared that they also Compeired for the Creditors of Lauderdale particularly The Lord Yester and his Childrein as owning the defenders possession And the saids Lords Did Recommend to a Committie of their oun numer to meet with and endeavor to setle and agree the parties and Report to the Councill on Tuseday therafter And the said Lybell being this day again called in presence of the saids Lords, And they haveing Considered a Petition given in to them be the above Countess dowager of Lauderdale pursuar Representing that the above referrence towards ane amicable setlement hath taken no effect, And Therfore Craveing the witnesses hath taken no effect, And Therfore Craveing the witnesses to be received upon the lybell And both parties Compeiring as formerly, And Sir Patrick Home haveing Compeired as advocat for the Creditors of Lauderdale who have reall rights and infeftments under the great seall of that estate, And for whom the Lords of Session have appointed a factor for uplifting the rents The said Sir Patrick Declared that he for the saids Creditors did concurr with the young Countes of Lauderdale that she might be continued in possession of the above castle of Thirlstaine And the saids Lords haveing againe heard both parties advocats Debate fully in their presence They heirby Remitt to the Lords of Sessione the point of right to be by them first Discussed And Recomends to the saids Lords to proceid in Discussing therof sumarly without abyding the Course of the Roll.