Act, 6 October 1697, Edinburgh

Att Edinburgh the Eightein day of November J^aj vi^c nyntie seven yeirs

D1697/11/5

D1697/11/5¹

Decreet

Decreit The Laird of Kinfauns and wythers Against The Laird of Phineven anent the Curatrie

Anent the two lybells or Letters of complaint raised and persewed before The Lords of his majesties privie Cownsell both at the instance of Alexander Blair alias Carnegie of Kinfauns Mr Patrick Carnegie of Lwar Thomas Blair of Bethyock […] Drwmond of Cullwhallze Georg Murray brother to the deceast Sir Thomas Murray of Glendoick and Michael Malcolme of Balbedie as nearest of kin to the said Alexander Blair alias Carnegie with concurse of Sir James Stewart his majesties advocat for his highnes interest in the mater unerurittin Mentioning That where by the Comon Law and Lawes of this realme persones wnderage passing the yeirs of ther tutorie are allowed and should be left to a frie choise of the Curators Lykeas by the act of parliament Qween Mary parliament Sixth caput threttie five It is statut that when any minor passes the yeirs of his tutorie and desyres curators that he come before his Judge ordinar and desyre of him a sumonds or edict to wairn the persons therein mentioned to hear and sie the curators desyred be the said minor to him to his age of twentie one yeirs wherby it is clearly imported that the said choise of curators Should proceed at the minors oun desyre and by his own frie electione Lykeas by the same Lawes it is ordained that no man count any disorder in any Lawfull court and that much Less a persone intrusted as tutor Should offer any violence to his minor or to the clerk of court or any manor of constraint or indirect practice in the frie choise of his curators and whosoever does in the contrairie of the premisses ought to be therfore severely pwnished Nevertheles it is of Veritie that Mr James Carnegie of Phinhaven having bein tutor to the said Alexander Blair of Kinfauns dureing his pupillarity and haveing the said Alexanders persone in his custodie did in the moneth of September or october Last at his own hand without any warrand from the minor take owt edicts in order to the choise of curators by the said minor and when the said day of electione being the seventh of october came he brought the minor to the Shirreff court of Forfar wher the election was to be made and the minor compearing being desyred to give in the nominatione of his curators and he produceing and delivering to the said Shirreff depute a nomination of his curators under his hand the shirreff depute delivered the same to Mr John Lyon clerk of court to have bein by him published to all pairties having interest and then to have bein recorded as use is but the said Mr James Carnegie not pleased with the said nominatione Snatched the same out of the hands of the shirif clerk pretending that it was not the right nominatione that the minor intended to give in and when Thomas Blair of Ballthaick ther pub and one of the minors near relatives protested against the said practice and requyred Finhaven to reproduce the said nominatione as being the minors frie choise Fenhaven refused so to doe and Judiciallie therafter the said Fenhaven haveing practised and concussed his minor by secrete whispering in face of court he caried him off by laying of hands on him out of the court to the house of one Alexander Jaffray towne thesaurer of Forffar and therafter to his own house where he still detains him And when the said Thomas Blair of Ballthaick did follow the said Fenhaven and again befor the house of the said Alexander Jaffrey requyred him to reprodwce the forsaid nominatione protesting that the said Finhaven Should be lyable for the ryot the said Fenhaven prodwced ane other nominatione which he had elicit and extorted from the minor which he could not deny upon oath before the said Shirreff depute And therfore the said Thomas Blair of Bellthaick insisted for the first nominatione given in by the minor himself in face of court as said is which being Still refwised by Finhaven Ballthaick protested that no other nominatione save that which was friely given in by the minor himself in court Should be receaved and for coast Skaith and damnadge as ane instrument taken on the premisses by the said Thomas Blair of Ballthaick in the hands of the said Mr John Lyon clerk and notar publict would testifie By all which it is evident that the said Mr James Carnegie of Fenhaven did both impede the forsaid Alexander Blair of² Kinfawns of his frie choise of curators by the forsaid violence and other practises wsed by him As also that William Gray of Inverichty Shirreff deput did manifestlie connive therat Likeas the said Finhaven haveing Counted the forsaid disorder in open court was not at all restained³ by the said Shirreff depute as he owght to have bene so that the said Finhaven and the said Sheriff depute are gwiltie airt and part of the forsaid constraint and violence practised And therfor the said Finhaven owght in the first place be decerned to prodwce the person of the said Alexander Blair of Kinfawns in full libertie befor the Lords of our privie Counsell and the said Finhaven and the forsaid Shirreff depute owght not only to be decerned in damnadges and expensses But also furder pwnished by the saids Lords for the said ryot and disorder in the persones and goods to the example and terror of others to Commit the Like in time comeing And the others of the saids Letters or lybell of complaint Makeing mentione That wher ther is a former lybell raised at the instance of the persones abovementioned befor the Lords of our privie Counsell against Mr James Carnegie of Phinhaven for his haveing raised at his own hand without any warrand from the said Alexander Blair edict in his name for chooseing curators to him and for haveing upon the day of election therby appointed being the seventh of October instant hindered the said Alexander to make a frie election of his curators and also for haveing committed a manifest ryot in Snatching the nominatione given in by the said Alexander to the Shirreff deput of Forffar Judge to the edict and by him delivered to the clerk out of the clerks hand in face of court and playing hands upon the minor and carieing him from the barr and from thence along with him to his own house wherby Alexanders choise of curators was that day impeded and the freinds called and conveened to the election affronted and disappointed and the said lybell and letters theron raised against the said Finhaven in maner forsaid and execut to the Second of november next at more lenth bears Lykeas the said lybell and Letters being raised in maner forsaid against both Finhaven and William Gray of Innereichty Shirreff deput of Forfar Judge to the forsaid edict ther was Likewayes a bill of advocatione given in to the Lords of Sessione for advocating the saids edicts and the serving therof to ther Lordships in respect of the forsaid misdemainer and violence Committed by Phinhaven and the said deputs conniveance and being airt and part therof upon which bill it pleased ther Lordships to grant a Sist till the fifth of november forsaid which sist was intimat to the forsaid shirreff deput and by him admited the sixtein of this instant yet notwithstanding of the premisses Phinhaven persisted in his resolutione to hear the said Alexander Blair to whom he had bein twtor and is lyable in vast Soumes by vertue of the forsaid tutorie Still in his devotion that he might obtain ane exoneratione at what rate he thought fit Doeth likewise continue the forsaid wnwarrantable illegall practises and he and the said Shirreff deput collard Phinhaven in court upon the forsaid seventh day as said is as also to reproduce the nominatione that he had violently taken from the clerk of court in maner abovementioned and in the next place Phinhaven compears and haveing acknowledged his fault he Likewise gives his oath as to the nominatione that he had taken out of the clerks hand and upon oath declairs that the paper reproduced by him the forsaid twelve day was the same that he had taken from the clerk upon the seventh day but a very gross and palpable abuse and eqwivocatione in als much that the paper reproduced was indeed a part of that paper taken from the clerk but only such a part of it as Phinhaven did find for his purpose and containing Such persons as he was ayther pleased with or knew would not accept but then cutting of the rest of the names he adds upon the back of the paper such a frame of a qworum as he thought best resolveing that not only he should be Sinie qwo non but sole curator in case non of the rest Should accept which was indeed the point he aimed at and to make this contriveance the more Licklie and consistent he adds to the instriptione bearing that it was the List of the persones to be Kinfauns curators (these words as they are here and on the other Syde) and that because the paper when it was intire did bear all the names and the qworum upon one syde but the taill being cutt of it was Supplyd upon the back in maner forsaid this paper thws cwtt tailled and falsified is visible to occular inspectione being then reproduced upon oath as said is The Shirreff deput admits and causes record the same without ever considering that the day of the edicts being past and no new edicts raised nor freinds called to hear the electione made it was by the act of parliament impossible that any dwe electione would proceed but Phinhaven and the Shirreff deput haveing contrived the whole mater with a designe to exclude freinds and to have the minor and his estate still in his power without any hazard of compt and reckning they add to the violence contained in the former lybell the abovewrittin practises the most illegall abwsive and absurd that ever were heard of Likeas Phinhaven being the only persone accepter is now the sole Curator as he was sole tutor and hath offered ane John Lyon of Whytewall for his cautioner a man not worth the tenth part of what Phinhaven is chargeable with And therfor the said Mr James Carnegie of Phinhaven and William Gray Shirreff deput being gwiltie airt and pairt of the said evill practises over and above the violence lybelled against them in the Letters formerlie raised they owght to make answers upon the whole and the said Shereff deput as also Mr John Lyon clerk of the court ought to compear and bring with them the haill edicts precepts executions minwts of court nominatione and acts of cautionrie made in the forsaid affair to the effect that our Lords of Councill haveing the whole proces Laid befor them and dwe probatione made of the other points by the said clerk and other witnesses the said Phinhaven and Shirreff deput may be decernd in damnadges and expensses but Likewayes furder pwnished as the Lords of Councill Shall think fitt to the example and terror of others to comit the Like in time comeing And furder the said Alexander Blair ought to be declaired frie to make his new election notwithstanding of the said Shamm electione befor our Lords of Councill conforme to our bill of advocatione given in for that effect And Anent the charges given to the defenders abovecomplained on in both the saids Lybells to have compeired befor the saids Lords of his majesties privie Counsell at ane certaine day now bygon to have answered to the grownds of the saids complaints and to have heard and Sein Such order and course taken theranent as the saids Lords Should think fitt with certificatione etc As in the saids two severall lybells or Letters of complaint and executiones therof bears which two lybells being upon the Eleventh day of november instant called in presence of the saids Lords of privie Councill and Thomas Blair of Belthaick one of the persewers compearing personallie for himself and in name of the haill persewers and Mr James Carnegie of Phinhaven and the Shirreff depute of Forffar and the Shirreff clerk defenders compeareing personallie And Sir James Stewart his majesties advocat Sir Patrick Home Mrs Hew and David Dallrimples Mr Andrew Home Mr Thomas Skein and Mr Mungo Carnegie Compearing as advocats for the haill persewers And Sir David Thores Mr David Cuningham Mr David Forbes Mr James Hamilton Mr William Aikman Mr William Calderwood and Mr Charles Gray compearing as advocats for the saids haill defenders The two Lybells principall and additionall and answers therto both by Phinhaven and the Shirreff depute Being both red and the lybell of reconventione Phinhaven against Belthaick being also cited both parties compearing as said is The reconvention being red and both parties Lawiers being fullie heard to debate in this mater The saids Lords of his majesties privie Counsell in the first place appoints Mr James Carnegie of Phinhaven to prodwce and sist the persone of the said Alexander Blair alias Carnegie of Kinfauns in presence of ther Lordships upon Thursday The eightein of november instant and ordaines the said Alexander Blair alias Carnegy of Kinfauns to appear and sist himself befor the saids Lords the day forsaid And ordains Letters to be direct at the Lord advocats instance both against Phinhaven and Kinfauns to the effect forsaid And in the mean tyme the Councill nominated and appointed a Comitie of ther own number to meet with and endeavor to Setle both parties in the mater lybelled and the wittnesses being present and haveing made faith at the barr The Councill recomended to the comitie (in caise they could not agrie the pairt etc) to examine the wittness and granted furder dilligence against the assents And the said Comitie haveing accordinglie mett they took and receaved the oaths and depositiones of diverse and Sundrie famows witnesses who being all Solemnly Sworne interrogat and examined deponed declaired as ther oaths and depositiones extant in process bears And the said process being this day Advised by the saids Lords of his majesties privie Cownsell And ther Lordships haveing considered the depositiones of The wittnesses The saids Lords of privie Cownsell Finds the Lybell Sufficiently proven And therfore finds that ther is noe frie and Laufull electione of Curators and declairs the electione of Curators void and nwll And the said Alexander Blair alias Carnegie of Kinfauns haveing appeared and being Sisted in presence of the Saids Lords They did Seqwestrat the said Alexander Blair alias Carnegie of Kinfauns into the hands Cwstodie and Keeping of Mr James Scowgall of Whitehall and of the Senators of the Colledge of Justice ther to remaine in familie with him dureing The Cowncills pleasure and appoints Mr Patrick Coupar his Governour and […] Currer his servant to remaine in the said familie with the said Laird of Kinfauns And therefter The Counsell in respect of Kinfauns his disobedience to ther Lordshipes Sentance and misdemaners at The Cowncell barr decerned and ordained the said Laird to be caried prisoner to the Castle of Edinburgh therin to remaine Dureing the Cowncills pleasure And allows his governour and Servant foirsaid to remaine in the Castle with him bwt not as prisoners and to goe and come at ther pleasure And the saids Lords haveing called in The Laird of Phinhaven They in respect of what is fownd proven against him And till furder consideratione therof Committs the said Laird of Phinhaven prisoner to the tollbwith of Edinburgh ther to remaine Dureing The Cownsills pleasure And the Laird of Phinhaven haveing acknowledged at the barr that he had maried Kinfauns upon his Dowghter Since he was at the Councill barr and that Mr James Crwk who is minister at Uthlaw did marie them upon Munday Last The Saids Lords recomended to his majesties advocat to raise and follow furth a perswte befor ther Lordships against the minister and both the saids Lairds with all expeditione And the Saids Laird of Kinfauns and Finhaven were committed prisoners accordinglie