Act, 29 December 1692, Edinburgh

Edinburgh the Eleventh day of August J^aj vj^c Nyntie two years Post Meridiem

D1692/8/35

D1692/8/35¹

Decreet

Decreet The Earl of Kintoir Master of Forbes and others Against The heritors of the Cruves and Fishings of Neitherdon

Anent the Lybell pursued before the Lords of their Majesties privy Councill at the instance of John Earle of Kintoir William Master of Forbes Sir John Forbes of Cragivar, Patrick Lesley of Balquhyne, William Forbes of Munimusk John Skeen of Dyce, James Moir of Stoniewood, George Patton of Grandarne and Alexander Pattron of Kinaldie heritors of the Salmond fishing upon the watter of Done above the Cruives and Sir William Lockhart their Majesties Soliciter for their highnes intrest Makeing mention That quher albeit by the lawes and acts of Parliament of this kingdome and particularly by the sixtein the act of Alexander the second, The Eleventh act of King James the Sixth first his first parliament, the Seventie thrid act tenth parliament King James the thrid, The fiftein act 2d Parliament King James the fourth, The Sixteinth act parliament fourth King James the fifth, The sixtie Eight act nynth parliament Queen Mary, The Eightie nynth act sixth parliament King James the sixth, The thrid act Parliament seventh James the sixth, And by the threttie third act of Parliament first Charles second dated the Fourth day of Jully J^aj vj^c Sixtie one Ratifieing and Approveing the forsaids haill acts And appointing the same to be put to due execution It is statute and ordained that no Cruives nor Zaires in Fresh watters shall be sett upon sands or shales farr within the river wher they ware not before Bot that all such cruives and Zairs shall be put doune and taken away And that no Cruives shall be suffered to stand in forbidden tyme, And that all who has Cruives shall keep the lawes anent Saturdayes stops and that six foot in the midstream shall be keeped allwayes open, And that ther shall be thrie Inshes of Differance betwixt each heck under the paines and penalties contained in the forsaids acts, And Especially by the said […] It is apppoynted that the Contraveeners of the saids act shall not only pay the soume of Twentie punds scots toties quoties And that the penalties the one half therof shall be uplifted for their Majesties use and the other half therof for the use and behoove of the parties damnified and who should first Challange and insist against the Contraveeners of the saids acts, And quhich penalties are appointed to be uplifted without any defaulcation Bot also it is appoynted that the executione therof shall be without prejudice of the partie interessed To insist against the transgressors of the saids acts And ilk ane of them for the prejudice and Loss sustained therby and finding suficient Cautione and surety for the due ² Observance of the saids acts in all tyme comeing, Lykeas by ane Decreet of Declarator at the pursuars instance and their predecessors instances against the persones underwritten and their predecessors and authors before the Lords of session upon the thretein of February J^aj vj^c sixtie six The saids Lords Did Find and Declare as to the Saturdayes stope that all and everie Cruive should be open from Saturday at six at night till munday at sunriseing so that dureing that tyme fishes may goe up and doune the watter without being Catched or taken And that the wydnes betwixt each heck should be thrie inshes And that the Dyke quherupon the persones underwritten their Cruives are Cituate should be only one foot and one half of height above the superfice of the watter as the samen runeth in ordinary Course when ther is no Spait in the watter betwixt the fiftein of Aprill and the first of May and that dureing the Saturdays stope ther shall be ane shute of ane ell of wydnes keept up to the tope of each Cruive in all and evrie one of the Cruives And that the inscales shall be Laid by and made open in all and everie one of them dureing the tyme forsaid And that the Dyke shall be at the tope only half ane ell of Breadth And that dureing the tyme of the Saturdayes stope, The puded heritors of the neither cruives and fishing shall not fish with any Ingines or any maner of way within their oun bounds and liberties, And that the haill and every one of the saids particulars Should be observed by the saids pretended Cruive masters their tacksmen and Servants under the penaltie of ane Thousand punds Scots money to be payed toties quoties any faillie that shall be Comitted in the observance of the saids particulars, And that the said penaltie Shall be Imployed In the first place for satisfieing of the parties greived and the remander should be Imployed as the saids Lords of Councill should think fitt Lykeas the heritors of the uper watter haveing raised ane action and Lybell of Controventione before the saids Lords of Secret Councill against the Neither heritors of Don upon the Lawes and grounds abovespecified Did obtaine the said nather watter heritors to be amercied and fyned for transgressing therof As the Decreet of Councill given therupon the tenth of Aprill J^aj vj^c Eightie four years at leanth bears, Lykeas by act of Privy Councill Did expressly prohibit and Discharge packing and cureing of Salmond, The Lords of privy Councill, Did expressly prohibit ad Discharge all heritors and tacksmen to give to their Servants any fishes for their fies as also Discharges all persones quhatsomever from buying any Salmond fishes fresh or salt from the servants of the heritors, as also Discharged all persones both heritors and tacksmen from salting or Cureing any Salmond, Bot what was the products of their respective fishings and that under the paine of thift Notwithstanding quherof Mr Alexander Davidsone of Newtoune, James Gordon of Seatton, Henry Panton of Boghall, John Burnet skiper in Aberdeen Mary Cochran relict of John Moir of Barnes George Johnstone of Overtoune Mr John Johnstone merchant in Aberdein his sone, Mr James Gordon persone of Neitherbanchrie, William Black advocat in Aberdeen Mr Alexander Alexander of Old Cruives, Mr Thomas Forbes of Robslaw, William Gordon merchant in Edinburgh Master Androw Masie regent in the Collodge of Edinburgh Issobell Meinzies relict of Mr Arthur Gordon […] Gordon her sone Patrick Irving of Beltie, Alexander Stewart of Culpney […] Barclay of Urie, Jannet Shand relict of Thomas Burnet merchant Mr John Gordon younger of Seatton and their servants wattermen and others whom they retaine And ilk ane of them in manifast contempt of the said Lawes and acts of Parliament and Decreets above mentioned Have ever since the said tenth of Aprill J^aj vj^c Eightie four years and yearly and continually since syne keeped and mantained cruives upon the Said watter of Done, And have keeped up a dyke quherupon the said Cruives are built under St Machers church near the mouth of the said river and very near to Salt watter and farr within the said watter and upon sands and sheills, and wher the saids Cruives ware not formerly built and therby they have destroyed the smoults and fry of Salmond contrare to the saids Lawes and acts of Parliament, And notwithstanding that the pursuars have yearly and ilk year most frequently Desyred the fornamed persones under forme of instrument To Observe obey and obtempor the saids Lawes and Acts of Parliament and Decreet abovementioned in relation to the observance of the said saturdayes stope distance of the hecks keeping of the cruive dykes and fishing with forbidden and unlawfull ingynes without their bounds dureing the tyme of the said Saturdayes stope. yett they and everie one of them in amnifast Dispute and contempt of authoritie And to the pursuars great Loss hurt and prejudice have wilfully and masterfully keept on the cruives both hecks and inscales at the least the most part of them ilk Saturday at night from six acloak till munday at sunryseing and have and doe Constantly fish with netts and other ingynes, And Doe stent netts dureing the tyme of the saturdays Stope, And Doe Constantly stent netts on all occasiones from the one syde of the watter to the other beneath the saids Cruives Lykeas they have not observed the Distance of the hecks bot have constantly and yet does keep in hecks which are hardly two inches distant Lykeas they keep the said Damen of ane extraordinary hight and breath upon the Tope contrair to the said Declarater, In so farr as the same is and have allwayes been two ells broad at the Tope, And thrie foots high above the superfice of the watter as it runs its ordinary course betwixt the fiftein of Aprill and the first of May Lykeas the fornamed persones and ilk one of them doe put cross barrs athort the cruives, and wands them up with small wands Broome and Whinnes under the watter, so that the Smallest troot cannot goe thorow them, Lykeas the saids persones heritors of the saids Cruives and neither fishings have of purpose to defraud the pursuars built yearly a strong dyke or dame quher their Cruives are sett, That even in a great and Considerable speatt no fisch could swime over it and with all have not placed the said Cruives in the deep places of the watter wher fishes may swime Bot upon Bot upon³ shoals wher they cannot, And when ther was any speat in the watter So that fishes could come to the Cruives, Then they placed double Harrie watter netts and such Like inventiones before the rung of the Cruives, As Likwayes staves and Clipshafts betwixt the Scales, So that fish could swime throw them to goe up the watter to the manifast defraud and totall prejudice of the pursuares, And Furder upon all Occasiones to keep the fish from entering the Cruives, The said Cruive and Neitherwatter heritors and their Servants have stopt the current of the watter beneath the Cruives with great stones almost as high as the supperfice of the watter And how oft the same have been taken out by the pursuars They have alse oft put them in againe as they ware And Farder they have in the deep places of watter upon the back or Neither part of the Cruive dyke or damm built and made Lebbies or inclossers which receive the fish as they swime up the watter and detaine them untill the saids neither heritors and their servants take them up with clips and spears, And moreover quheras the rungs of the cruives ware formerly in leanth and height about ane ell and a half they have been and are ever since the said Decreet of Councill made no longer nor higher then about thrie quarters of ane ell, The present hight, of the cruives, which the said Cruive and Neither watter heritors doe off purpose, That now when the Bottom and neither most parts of the Cruives are made almost equall with the superfice of the watter, the same may not appear to be so albeit that when ther is no Spet ther will be litle more nor two inches of Deepens upon the bottom of the Cruives, So that no maner of Fish can sweem theron, And Further albeit that all fishing should be forborn dureing the tyme of the Saturdayes stope And that the tyme and maner of the said stope should be duely observed, yet the said tyme of drawing and makeing open the stopes in the cruives hath not been observed nor the stope made of the widness appointed by the forsaids Decreets, And with all the saids Naither heritors and their servants have fished dureing the tyme of the said stopes and even upon the Lords Day both by Netts, Lebbies, Fithes and other wayes and So insolent have they been in this practise that they have severall tymes Beatten the pursuars servants when they did in a legall way admonish them to desist therfrae And Further Wheras in all mylne damms ther should be ane open mid stream ye the said James Gordon of Seatton hath a very high and strong mylne damm without any Sluce or opening at all, And on that dyke or damm, which is no Cruivedyke keeps Constantly severall Lebbies or Inclossures at the back therof In which many fishes are taken, And albeit it be in the power of the said James Gordon who lives upon the bring of the River and who has the Sole Command of the servants they being all his oun tennents to hinder the Irregularities forsaids, not only at his oun damm dyke Bot one all other places of the river, yet he is so farr from Preventing the same that he is rather the author therof In so farr as he contrare to the rest of the heritors inclinationes does mantaine and leep the servants when for their Irregularities they are Discharged ther service as particularly one […] Wilsone when discharging The said James Gordon did nevertheless protect Mantaine and keep him in the service and payed his wages notwithstanding that he was Discharged the Service ⁴ by reasone of the frequent Complaints made be the pursuars against his Illegall fishing as also when the Servants doe Imbazle and steall their masters fishes And when upon Complaints the same is found in thir Custody the said James Gordone does oun the Same as his albeit the act of Privy Councill Declares It Thift in any man to salt or cure any Salmond except he be heritor or tacksman and Discharges any heritor or tacksman to salt or cure any more then the product of his oun intrest under the paine of Thift, Lykeas his oun millers And Domestick Servants Doe oft tymes on Sunday and other Occasiones fish with flees, spears, and other unlawfull ingynes to the pursuars great damnage Lyke as the said Mr John Gordon has notwithstanding of the act of the saids Lords salted and Cured Considerable quantities of Salmond more then the product of his oun intrest and has ouned the Salmond, So illegally salted and cured, And notwithstanding they have been seized by the shirreff, yet has packed and avowedly made use of the same wherthrow the servants are the more encouradged to their forsaid Illegall practise And the designe of the saids Lords their act intirely frustrated, and the Illegall packing and salting of Salmond So farr encouradged that they run the hazard of Looseing that esteem which formerly they hade abroad, To the great damnadge not only of the pursuars bot also of the whole nation who have any concerne in the Salmond fishing And lastly to evidence the evill and malicious designes of the saids neither heritors for cureing on the saids acts of injustice and oppressione They keep and mantaine for that end a pack of Debauched and infameous persones to Serve in the said fishing a great part therof have been Declared fugitives for thift and other crymes and will not answer at any Court by all which deeds and practises The said Mr Alexander Davidson and remanent persones above complained upon have not only Contraveened the forsaids Lawes and acts of Parliament and Decreets above mentioned, And incurred the paines and penalties therin contained ilk ane of them yearly and monethly since the tenth day of Aprill J^aj vj^c Eightie four years Bot also have damnified and prejudged them in the Soume of Two Thousand punds yearly and ilk year for the space and tyme abovementioned And Therfore Ought and should not only be Decerned to make payment of the penalties abovementioned as also of the Loss and damnage sustained by the pursuars in maner forsaid Extending in the haill to the soume of […] And to find Cautione to obtemper fulfill and obey the forsaids Lawes and acts of Parliament and Decreet of Declarator abovementioned Bot Lykewayes they ought to be examplarly punished in their persones and goods to the terror of others to comitt and doe the lyke in tyme comeing And Anent The charge given to the haill fornamed persones defenders To have Compeired before the saids Lords should think fitt as in the forsaid Lybell and executiones therof more fully is Contained Which Lybell being called upon the fourth day of August instant And the said Earle of Kintoir and Master of Forbes two of the pursuars Compeiring Personally for themselves, And the rest of the pursuars who ware absent with Sir James Ogilvie, Mr Hew Dalrymple, Mr David Dalrymple James Stewart Senior Mr James Scougall and Mr Robert Forbes ther advocats And the said Mr Alexander Davidsone, The above James Gordon of Seatton and William Gordon merchant in Edinburgh thrie of the saids defenders Compeiring also personally with Sir Robert Colt, Sir David Thores, and William Gordon advocats for the heritors of the Fishing of the said Neither Watter, and Mr William Monypennie and William Black a defender advocats for the heritors of the cruives on the said Neither Watter, And the haill remanent defendars being all lawfullie cited oftentymes called and not Compeiring The said Lybell with the answers given in therto be the heritors of the fishing on the said Neither Watter And Lykewayes the answers given in for the heritors of the Cruives upon the Same, Being all read and Considered and the advocats fully heard, The Lords of their Majesties privy Councill Doe grant certificatione against the haill absent defenders, And ordained letters of Denunciatione to be direct to messengers at armes Commanding them to pass to the marcat cross of […] and their in their majesties names and authoritie to duely Lawfullie and orderly Denunce the saids haill absent defenders their Majesties rebells and put them to their highnes horne, And ordaine all their movaball goods and geir to be Escheat and inbrought to their Majesties use for their contemption and Disobedience And Imediatly therafter to use the haill remanent order appointed by act of Parliament, And the saids Lords Ordained the witnesses to be examined and nominated and appointed a Commitie of their oun number for examineing the saids witnesses Reserving all objections which might be made against these witnesses to be proponed and discussed by the said Committie, With power to the said Committie to receive any legall defences quhich might be proponed befor them for excuseing the absence of any of the defenders And the haill witnesses cited did Compeir and made faith at the barr, And being examined by the said Committie They Deponed in maner mentioned in their respective depositiones as the samen Lying in proces bears And the Committie conforme to the power given to them be the Councill Sustained the excuses made for Robert Gordon sone to Mr Arthur Gordon and Issobell Mainzies his mother and the said Mary Cochran thrie of the defendars And Repones them against the Certificatione And the saids Lords of Privy Councill Having this day Considered the forsaid Lybell with the writtes produced for either partie and petitiones and informationes given in for them Togither with the depositiones of the witnesses adduced for the pursuar for proveing the points and articles of the Lybell They have Assoylzied and heirby Assoylzies Issobell Meinzies relict of umquhill Mr Arthur Gordon advocat and Robert Gordon her Sone and William Gordon merchant in Edinburgh thrie of the defenders from the points and articles of the Lybell In Respect neither they nor their authors are subscryvers of the Contract betwixt the heritors of the Neither Watter and the heritors of the Cruives, And the saids Lords Finds the points following suficiently proven viz the bigging of Labbies and takeing fish therin the casting in of Stones, before the Cruives wherby the Fishes are hindred to sweem up the watter, The building of Cruive-dykes higher then the degree appointed by Decret of the Lords of Session And the fishing with a Stented nett from bank to Bank, And Therfore The Saids Lords Have Fyned and heirby Fynes the defenders (except the thrie abovespecified) In the Soume of Five Thousand merks scots to be payed the one half therof be the heritors of the fishings on the Neither Watter, And the other half be the heritors of the cruives each of them in Solidum for their oun respective halfes, And appoints on third part of the said fyne to be payed in maner forsaid To Sir Patrick Murray of Saltcoatts Collector of their Majesties Croun rents for their highnes use, And the other two third parts therof to be payed to the pursuars for their damnage expences and charges, And Ordaines the Lobbies allready built to be Immediatly cast doun and taken away and Discharges the Rebuilding or makeing use of Lobbies in tyme comeing, And Lykewayes Discharges the makeing use of a Stented nett from Bank to Bank The tyme of the Saturdayes stope in all tyme comeing And Ordaines letters of horning upon fiftein dayes and others needfull to be direct heiron in forme as effeirs.