Decreet, 24 June 1701, Edinburgh

Procedure, 30 December 1701, Edinburgh

Att Edinburgh The tuenty fourt day of June 1701

D1701/6/141

Decreet

Decreit The Laird of Innes Against the Laird of Coxtoun and Thomas Calder

Anent the tuo severall Lybells raised and persewed before the Lords of His Majesties privie Councill The one therof att the Instance of Henrie Innes younger of that ilk John Innes William Marschall David Dumbar James Hay William Roy John and James Marschalls David Clerk Colline Geddes Alexander Ritchie Alexander Winchester John Anderson of Machmilne Alexander Gatt Robert Geddes William Geddes William Stronach John Shand Aleaxner Mill Alexander Duncand William Geddes elder and younger and William Geddes youngest Alexander Tham James Shand Alexander Marschall David Robertson James Robertson Thomas Wilson Thomas Gray Andrew James and John Simpsons John Cowie George and William Geddeses Gilbert Geddes Andrew Mitchell elder and younger James Mitchell William Angus John Reid John Stewart Walter Stronach Angus Dumbar Walter Maver Alexander and James Smiths James Laing Alexander Maver John Hay and David Hossack All Fishers of the water of Innespey and Inhabitants of the Burgh of Garmouth with Cocurse of Sir James Stewart His Majesties Advocat for his highnes intrest in the matter underwrytten Makeing Mention That where by the Laues of this and all weell governed Realmes the brakeing of the peace by unlaufullie convocating of the Leidges and the violent Invadeing of the subjects in their Laufull rights and possessions and the masterfull inverting of the saids possessions without any order of Law Especially after Lauburroues by the Lords of privie Councills authoritie Have bein duely execute with a particular regaird to the preventing any such abuses are Crimes of ane high nature and severely punishable particularly2 by that act fyft parliament first King James the first It is statute That no man travell with more men then he can sustain under the pains therin specified And by the hundreth and threty first act parliament Eight King James the sixt It is statute that non of whatsoever quallitie estate of Function presume to Convocat conveen or assemble themselves togither except in the ordinary Judgments under the pains therinspecified Which acts are ratified and Cleared by the first act parliament first session first King Charles the second Lykeas by the hundreth and seventeinth act parliament seventh King James the sixt and seventy seventh act parliament six King James the sixt The pains of Lauburroues are to be divyded betwixt His Majestie and the pairtie And by the tuo hundreth and seventy third act parliament fyfteinth James the sixt The person Charged by Letters of Lauburroues is Lyable to the pains of Contravention albeit he hes not found Caution and if he hes found Caution he and his Cautioner are Lyable therin As also by severall acts of parliament the Disturbance of Communities Especially of Burghs in the enjoyment of their privledges is severely punishable Nevertheless it is of verity That the said Laird of Innes persewar and his predicessors have by their Chartors confirmed in parliament stood infeft in the Burgh of Barronie of Garmoth which lyes contiguous to the water and Fishings of Innerspay with express pouer and privliedge to the Inhabitants of the forsaid burgh of being the Fishers packers and curers of the salmond taken wpon the said River of Innerspay By vertue wherof They haveing been in constant possession above these hundreth years The forsaids Inhabitants did not only gain their Lyveliehood by a dayly allowance of so many salmond to themselves for their service But Lykewayes this did capacitat them to take Fews from the said Laird of Inneses predicessors with Reddondos of Salmond amounting to […] Barrells of Salmond per annum of yearly rent wherof they have bein in use custom and possession past all memorie Nothwithstanding wherof Sir Alexander Innes of Coxtoun Thomas Calder Merchant in Elgine Tacksman or otherwayes pretending right to some pairt of the water of Innerspey haveing projected to ruine the forsaids Inhabitants and the said rent arryseing from their Laubour and priviledge Did of Late in order therunto Threaten to alter or Invert the said persewars Right and Immemoriall possession and that in emulationein vicini by Masterfull superinduceing of straingers for being Fishers packers and Curers of the salmond taken on the said River and by removeing the Cruft houses over to the other syde therof Upon which surmise The said Laird of Innes haveing applyed to the saids Lords of privie Councill Did obtain Letters of Lauborroues expressly warranding to Charge the said Sir Alexander Innes and Thomas Calder to find Caution That the saids persewars should be harmeless and skaithless in the possession of their forsaid Right and priviledge and that they should find Caution for that effect under the penalties of three thousand Merks the said Thomas Calder according wherunto the same was execute wpon the thretteinth day of Apryll last bypast Notwithstanding wherof true it is and of verity that upon the first day of May then instant now last (which was the time of stricking or beginning to Fish in this season) The said Laird of Innes for himself and in name and behalf of the other persewars Did by way of Instrument at the water syde of the said Fishing Require the forsaid Thomas Calder for himself and as actor for the said Sir Alexander Innes To accept of the tuo bands of men (being eight men a band) whose right and priviledge it was to serve that Coble of the Fishing And that the forsaid Thomas Calder should nowayes molest them in Fishing the said water conforme to use and want But as the said Thomas Calder positively refused so he Immediatly ordered a bodie of men of the Lordships of Enzie and of the names and Designationes follouing under the Command of […] Gordon alias Leggie Gordon fewar in Dallachie viz: Andrew Gray, Alexander Annand, William Gordon, James Geddes, Andrew Innes, John Hay, James Packman, Thomas M’lean, Alexander Reid, Robert Taylor, John Anderson, John Reid, James Milne, Peter Taylor, John Cowie, and John Burges all tennents possessors and Inhabitants on the Lands and Lordship of Enzie To lift the said Coble from the Green of Garmouth and put the same in the River in order to Fish with some of the straingers abovenamed and the said Laird of Innes persewar haveing past to the Cruft house comonly the red Cruft house on the forsaid watersyde with eight of the said sixtein men whose time it was to serve the Fishing for that tyde and they being aboard the Coble boat and in possession of the netts and Ropes in order to doe their dutie which they offered by instrument in mainer forsaid The said Thomas Calder for himself and as haveing Commission from the said Sir Alexander Innes Did Command the forsaid unlaufull convocation of men to enter the said Coble violently upon the possessors therof and to Drag them out of the same from their netts and Ropes which accordingly was done by the persons abovenamed albeith they solemnly Declared they were not engadged with the said Thomas Calder nor had they undertaken to Fish the said water nor were they acquainted with any such Imployment As the saids Instruments taken therupon of the date forsaid more fully bears Wherthrow the haill forenamed persons are guiltie not only of ane unlaufull convocation of the Leidges and a most manifast breach of the peaceh through their masterfull invasion upon and intrusion into The said Laird of Innes persewar his undoubted right and priviledgs and Immemoriall possession at their oune hands without the least order of Law or Justice But Likewayes They and each of them have incurred a plain Contravention of the saids Letters of Lauburroues To the great prejudice of3 the said Laird of Innes and the other persewars Inhabitants of the said Toun of Garmouth their Livelihood and the said persewar the Laird of Innes his rent arryseing therfrom And therefore the haill forsaids Crimes or airt and pairt therof They ought and should not only be Decerned and ordained to Repone the said Laird of Innes persewar and the other Inhabitants forsaids to thre possession as in former years But Likewayes to desist and cease in time comeing from all such usurpation on the saids persewars thair Rights and priviledges and unwarrantable incroachment or their possession and use wont of Fishing packing and cureing the salmond taken wpon the said water of Innerspey But Likewayes that the said Sir Alexander Innes and Thomas Calder are each of them and William King of Newmilnes late provost of Elgine and James Stewart Baille there aught to be Decerned to make payment to the said persewars and each of them Conjunctllie and severally of the soumes of […] as the pains contained in the saids Letters of Lauburroues incurred by them through the Contravention and molestation above specified being the one half therof to the sais persewars And the other half therof to be payed to His majesties Cash keeper and Thesaurie And sicklyke the saids persons defenders and each of them Conjucntlie and severally aught to be Decerned in payment to the saids persewars of the soume of Tuo hundreth pound starling in name of Damnages and expenses and otherwayes punished in their persons and goods to the terror of others to Committ or doe the like in time Comeing And Anent the Charge given to the forenamed persones Defenders To have Compeared personally Before the said Lords of His Majesteis privie Councill att ane Certain day bygone To have Answer to the forsaid Complaint and to have heared and seen such order and course taken theranent as appertaines With Certification as in the said principall Letters and executions quherof at mair length is contained And the other Lybell being of Reconvention Raised and persewed before the saids Lords att the Instance of the saids Thomas Calder Tacksman of the Countes of Dumferlings Fishing on the Water of Innerspey Sir Alexander Innes of Caxtoun and Sir James Calder of Muirtoun his Cautioners and Jean Countes of Dumferling for her intrest With Concurse of Sir James Stewart His Majesties Advocat for his highnes intrest in the matter underwrytten Makeing Mention That where by the Laues of this and all weell governed nationes The unlaufll convocating the Leidges in armes And the violent and masterfull invading the subjects in the peaceable possession of their Laufull rights and possessions and the Masterfull inverting therof by Imposeing unwarrantable servitudes wpon any of the subjects by open Force and violence contrary to and inconsistant with the exercise of their free rights and possessions Especially after Lauburroues before the Lords of privie Councill have bein raised and duely execute against the aftermentioned Committers of the forsaids unlaufull practises and oppressions And for secureing the publict peace and preventing any such illegall Courses are Crimes of a high nature and severely punishable And particularly by the severall Laus and acts of parliament all men are prohibited to assemble or Convocat his majesties Leidges in hostile manner And specially by the fyft act parliament first King James the first It is statute that no man travell with more men then he can sustain under the pains therincontained and by the hundreth and thretty first act parliament eight King James the sixt It is statute and ordained that no person of whatsoever quallitie or Function presume to Convocat Conveen or assemble themselves togither exept in the ordinary Judgements under the pains therin expressed Which acts are Ratified and Cleared by the fourt act parliament first session first King Charles the second Lykeas by the hundreth and seventeinth act, seventeenth parliament King James the sixt and seventy seventth act parliament sixt King James the sixt The pains of Lauburroues are to be divyded betwixt his Majestie and the partie And by the tuo hundreth and sevety third act parliament Fyfteenth King James the sixth The person Charged by Letters of Lauburroues is lyable in the pains of Contravention with his Cautioner found by him In obedience to the said Charges As Also The violent and Masterfull hindering and obstructing any of the Leidges in the free exercise of their right and peaceable possession of their Fishings in the proper time and season therof are all crimes of ane high nature and aught to be severely punished Nevertheless The half of the Fishings of the Water of Innerspey haveing belonged to the late Earle of Dumferling and by him being provided to the said Countes of Dumfermling in Liferent she her authors and Tacksmen were in the quiet and peaceable possession thereof by Imploying such servants and fishers from time to time to serve them in the makeing use of the Coble netts and other Ingines for Fishing and in Building of Corfhouses for laying up and keeping there netts in when the season of Fishing was over and Lykewayes the said Countes of Dumfermling her authors and Tacksmen were in constant use to hyre and conduce any persons whom they thought fittest and agree with them wpon Innerspey And were in possession of a constant Course right and Libertie of altering and Chaingeing the forsaids servants and their wages from year to year or season to season as they thought most conduce to their profite and advantage Untill of Late that Hary Innes younger of that ilk Finding the forsaid fishing wpon Innerspey as weell as the other estate belonging to the Late Earle of Dumfermling to be mightily involved and Incumbered by the Competitions of Diverse Donators and many Creditros and that therby the due right and intrest therof was altogither neglected and not lookt after with that cure and concerned as formerly it was projected and contryved the Imposeing diverse heavie servitude wpon the forsaid Fishing which would in the end utterly destroy the same Such as That the tennents and Inhabitants of his toun of Garmouth lyeing upon the side of the said watter of Innerspey had the only right of Fishing theron and therfore that the saids persewars aught and should Imploy them and non else for serveing them in the forsaid Fishing And that the said Hary Innes and he only had the right to the share of the Fish which should fall to the forsaids Fishers for their said service And that his forsaids Inhabitants of Garmouth had the sole and only right to be Coopers Curers and packers of the Fish taken wpon the said River And for the better caryeing on the forsaid wicked oppression The said Harrie Innes prevailled with his Father to make a Resignation of the saids Lands of Garmouth with the forsaids servitudes specially mentioned therin as in Collour and pretext for his violent and Masterfull Imposeing the same by open deeds of violence In so farr as in the year Jaj vjc nynty eight and Jaj vjc Nynty nyn The said Harie Innes as the first stepp of Invasion wpon the forsaid Fishing He Compelled such of his men as were Imployed by William Gordon then Tacksman of the said Fishing To Deliver the Barrells of Salmond to the asid Harie Innes which were conditioned to have bein payed to the said Tacksman And where any of the said Fishers refused to sell the samond to him which they receaved for their hire He broke open their doors and caried them away And farder upon the […] day of Apryll Jaj vijc years or wpon ane or other of the days of the said moneth The said Hary Innes and his accomplices aftermentioned Fewars tennents or servants to him By open Force and Bangastrie seized upon and caried away the Cobles and netts belonging to the saids persewars and violently and Masterfully turned out their servants out of their saids Cobles and haveing Convocat and assembled a band of his oune men caused them to Fish the water wherof the persewars were tacksmen without aither their presence or allouance And albeit when the forsaid Fishing was sett in tack to the perewars at a publict Roup by authority of the Lords of Councill and session And that it was expressly provided as a condition of the said Roup That whoever offered therat behoved to Find Caution to preserve and defend the saids water and right of Fishing from the forsaid Innovations and servitudes and that the said Harie Innes being present and offering at the said Roup did therby acquiesie to the forsaid condition yet so far hath he bein from haveing the least regaird aither to the persewars right or authoritie of the Lords of session Interposed therto That upon the first day of May then instant now last or wpon ane or other of the dayes of the said moneth when the said Thomas Calder went to the water with sixtein men which is the ordinar number the forsaid fishing needs In order to lay on their netts and begin the Fishing in most peaceable mainer being all in their Fishing Cloaths without any armes offensive or defensive whatsoever even so much as a staff The said Hary Innes Bodin in Feir of weir accompanied with John Innes William Marishall David Dunbar, James Hay, William Roy, John and James Marishsalls, Davic Clerk, Collin Geddie, Alexander Ritchie Alexander Winster, John Anderson of Mathiemilne Alexander Galt, Robert Geddie, William Geddes, William Stronach, John Shand, Alexander Milne Alexander Duncan, William Geddes elder and younger and William Geddes youngest John Allan George Chalmbers, Francis Marishall James and Andrew Inneses Andrew Angus Alexander Chapman John Brolus elder and younger James Brolus youngest Alexander Thain James Shand Alexander Marshall David Robertson James Robertson Thomas Wilson Thomas Gray Andrew James and John Simpsons John Couie George and William Geddes Gilbert Geddie Andrew Marshalls elder and younger James Mitchell William Angus John Reid John Stewart Walter Stronach Angus Dumbar James Sutor James Anderson William Dumbart Walter Mavir Alexander and James Smuths James Laing Alexander Mavour John Hay David Hossack Alexander Hossack Alexander Gordon and John Brands all Inhabitants of the Burgh of Garmouth and Fewars tennents or servants to the said Hary Innes of that ilk to the number of sixtie persons and upwards and attended by a great Rable of women and other persons from the toun of Garmouth with their Lapss full of stones, Did order and Command a partie of his said armed men to attack and seize upon the Boat and netts belonging to the saids persewars and throw the Fisherman out therof Which was instantly done by the said Hary Inneses men their Leaping into the boat and throwing the persewars servants out therof and seizeing the netts they Fished with, And fished the water at their pleasure without any violence or oppression from the persewars who only took instruments therwpon and protested against the said Hary Innes both for Invadeing their possession and for a contravention of Lauburrous as the instrument taken therwpon and reated as pairt of the Lybell Bears The said Rable of women in the mean time for assistance and support to the said Hary Innes Throwing stones at the persewars Fishers and abuseing and Beating them in a most Barbarous manner Wherby the persewars right to the fishing begin interrupted in the violent manner abovementioned is licklie to become alogither useles and Improfitable to them And albeit for secureing the saids persewars in the peaceable possession of their said right and Fishing Did raise Lauburroues before the saids Lords of privie Councill and duly execute the samen against the said Henry Innes Chargeing him to find Caution to keep the said Thomas Calder one of the persewars harmeles and skaithles in the peaceable possession of his Tacks and possessions and that the said Hary hath found Caution for that effect under the penaltie of thrie thousand Merks Nevertheless he hath openly and manifastly contraveeneed the forsaid Lauburroues and hath incurred the forsaid pain of three thousand Merks The one half to be payed to the said Thomas Calder one of the persewars And the other half to His Majesties Receaver By the said Hary Innes his convocatting the Leidges and committing the open deeds of oppression Bangastrie and violence abovementioned against the saids persewars And therfore the haill forsaids persons or aither of them Conjunctlie and severally being found guiltie of the forsaids Crimes are airt and pairt therof They aught to not only to be punished in their persons and goods But Decerned and ordained to desist and cease from troubleing and molesting of the saids persewars in the peaceable possession of their fishing wpon the said Water of Innerspey and in hyreing and conduceing whatever persons they think fitt to serve them in the forsaid fishing In all time comeing wpon what termes and conditions they can best agree with them for and Likewayes The said Henry Innes and Duncan Forbes of Cullodin his Cautioner in the said suspension of Lauburroues aught to be Decerned to make payment of the soume of three thousand Merks scot mony as the pains contained in the saids Letters of Laubwrroues abovementioned The one half to the said Thomas Calder persewar and the other half therof To his Majesties use And sicklyke the saids defenders and each of them conjunctly and severally in the soume of two hundreth pound starling to be payed to the persewars to the terror others to committ the lyke in time comeing And Anent the Charge given to the saids defenders in the Reconvention who are persewars in the principall lybell To have Compeared before the saids Lords at ane certain day bygone To have ansuered to the forsaid complaint and to have heared and seen such order and course taken theranent as Appertained With Certification As in the said Letters of Reconvention and executions therof at mear lenth is contained The said principall Lybell being wpon the nynteinth day of June instant Called in presence of the saids Lords of His majesties privie Councill And the said Hary Innes and John Innes tuo of the persewars Compearing personally for themsleves and in name and behalf of the rest of the persewars And the saids Thomas Calder and Alexander Gordon tuo of the saids Defenders Compearing personally and the rest of the haill defenders being all Laufully cited oft times called and not Compearing And Sir Andrew Home Sir David Dalrymple Mr Francis Grant Mr John Murray Mr James Greme and Mr John Falconar Compearing as Advocats for the haill persewars And Mr David Cunninghame Mr James Hamilton and Sir Walter Pringle Compearing as Advocats for the haill Defenders The Lybell and ansuers therto being read And both parties procurators fully heared And the Lybell of Reconvention att the instance of Thomas Calder Merchant in Elgine Sir Alexander Innes of Coxtoun one of his Cautioners and Jean Countes of Dumferline for her intrest Against the said Henrie Innes John Innes Andrew Mitchell elder and other defenders being also Called In presence of the saids Lords of his Majesties privie Councill And the saids tuo persewars being. both personally present But the said Countes of Dumferline being absent albeit oft times called and not Compearing And Mr David Cunninghame Sir Walter Pringle and Mr James Hamilton Compearing as Advocats for the haill persewars And Sir Alexander Home Sir David Dalrymple Mr Francis Grant Mr John Murray Mr James Greme and Mr John Falconar Compearing as Advocats for the haill defenders The Lybells and ansuers made therto for the defenders With a petition for the said Innes of Coxtoun and these who are defenders in the Lybel wherunto they are called with him And another petition for the said Laird of Innes and the rest of the defenders In the lybell wherunto they are called with him being read and both parties procurators fully heared att the Councill barr And the saids Lords haveing considered both Lybells with the ansuers respective made therto They Admited the Lybells to the respective parties their probation as to the poynt of possession only And Remitted the poynt of right in debate betwixt both parties to be discust by the Lords of Councill and session And Recomended to the saids Lords of session to discuss the said poynt remitted to their Lordships summarly without abyding the courses of the Roll And the witnesses for both parties haveing Compeared or being absent as marked in the Rolls they made faith at the Councill bar And the saids Lords of his Majesties privie councill Nominated and Appoynted a Committie of their oune number to examin the witnesses in the poynt forsaid Remitted to the said Committie Reserveing all objections against the witnesses to be proponed and discust before the said Committie And Appoynted a time for the Committie to meet And The saids Lords of privie Councill Admitted the Compearance of Thomas Calder Merchant in Elgine and Alexander Gordon alias Leggie Gordon of Over Dallachie as sufficient for the haill defenders in the proces wherin these persons are Called And sicklyke Admitted the Compearance of Henry Innes younger of that ilk and John Innes as sufficient for the haill defenders Called in the proces wherin the said Laird of Innes and John Innes are called The saids Thomas Calder and Alexander Gordon first enating themselves in the books of privie Councill That the rest of the defenders called in the process wherin they defender caled as said is shall obtemper and fulfill the sentence of Councill that shall be given and pronounced against them And the said Henry Innes and John Innes also Enacting themselves in the forsaids books that the rest of the defenders called in the proces wherin they Called as defenders shall obtemper and fulfill the decreit of Councill which shall be given and pronounced against them And the said Committee haveing mett according as is appoynted They took and receaved the oaths and depositions of Diverse and sundrie Famous witneses for aither partie for proveing the poynt of possession admitted to their respective probations As the oaths and depositions of the saids witnesses for aither partie duely subscryved by them extant in proces bears And the said Thomas Calder Tacksman of Dumferlines Fishing and Defender in Innes his proces and persewar in the Reconvention acknouledged before the said Committie under his oune hand that he Fished the Coble sett in tack to the Laird of Coxtoun and him by the Enzie men and others and did not allow the Garmouth men to fish therin this season And therafter the said Sir Alexander Innes of Coxtoun and the said Thomas Calder Tacksman of Dumferlines Fishing gave in a petition to the Lords of His majesties privie Councill Shewing That in the mutuall lubells both principall and Reconvention pursued before the saids Lords by the Laird of Innes and the petitioners hinc inde against others att Calling therof The saids lords were pleased to remitt to a Committie of their number to examine witnesses wpon aither syde The Laird of Innes for proveing his possession of the alleadged servitude of Imposeing his men only for fishing the said water Exclusive of all others and the petitioners to prove Interruptions and that it was always Customarie and optionall to the Earles of Dunfermling and their Tacksmen of the said fishing to Imploy aither the Garmouth men belonging to Innes or any others for fishing the said water as they found most convenient for the service and there being many witnesses examined wpon the Laird of Inneses syde (all of them being his oune tennents haveing come up wpon the first citation given them) and non at all examined for the petitioners save only thrie and there being a great many more witneses cited for the petitioners who can make the saids Interuptions and constant customes perfectly clear and evident (being Long inhabitants in the Bounds) who are certainly wpon the Road comeing up and the petitioners are running the ordinary course of Dilligence against them by Caption Wherby the eight day of July alloued for bringig them up And therfore Humbly Craveing the saids Lords to stopp the advyseing of the depositions of Innes his witneses till the said eight day of July be past that in the mean tie the petitioners witnesses may be lykewayes examined and the saids Lords may have the haill matter fully before them and give their Decision accordingly therin As the said petition bears Which petition haveing bein Read in presence of the saids Lords of His Majesties privie Councill this day And the saids Lords haveing at the same time advyesed and considerred the depositinos of the witnesses adduced by aither partie in the above proces They Find that the Laird of Innes and his predicessors have bein in possession of Fishing with his Garmouthmen in the Fishing of the water of Innerpsay and that he hath bein disposest therf Therfore Have Reponed and heirby Repones the said Laird of Innes to his possession of his Fishing with the Garmouthmen in the water and Fishing of Innerspay: what belonged to the Earle of Dumfermling as the sole and only Fishers of the said water and Fishings of Inverspey with the said Garmouthmen And have Refused and heirby Reduses the desyre of the said petition given in by the Laird of Coxtoun And ordains Letters of Horning on fyftein dayes and others needfull to be direct heiron in forme as effeirs

Att Edinburgh The tuenty fourt day of June 1701

D1701/6/141

Decreet

Decreit The Laird of Innes Against the Laird of Coxtoun and Thomas Calder

Anent the tuo severall Lybells raised and persewed before the Lords of His Majesties privie Councill The one therof att the Instance of Henrie Innes younger of that ilk John Innes William Marschall David Dumbar James Hay William Roy John and James Marschalls David Clerk Colline Geddes Alexander Ritchie Alexander Winchester John Anderson of Machmilne Alexander Gatt Robert Geddes William Geddes William Stronach John Shand Aleaxner Mill Alexander Duncand William Geddes elder and younger and William Geddes youngest Alexander Tham James Shand Alexander Marschall David Robertson James Robertson Thomas Wilson Thomas Gray Andrew James and John Simpsons John Cowie George and William Geddeses Gilbert Geddes Andrew Mitchell elder and younger James Mitchell William Angus John Reid John Stewart Walter Stronach Angus Dumbar Walter Maver Alexander and James Smiths James Laing Alexander Maver John Hay and David Hossack All Fishers of the water of Innespey and Inhabitants of the Burgh of Garmouth with Cocurse of Sir James Stewart His Majesties Advocat for his highnes intrest in the matter underwrytten Makeing Mention That where by the Laues of this and all weell governed Realmes the brakeing of the peace by unlaufullie convocating of the Leidges and the violent Invadeing of the subjects in their Laufull rights and possessions and the masterfull inverting of the saids possessions without any order of Law Especially after Lauburroues by the Lords of privie Councills authoritie Have bein duely execute with a particular regaird to the preventing any such abuses are Crimes of ane high nature and severely punishable particularly2 by that act fyft parliament first King James the first It is statute That no man travell with more men then he can sustain under the pains therin specified And by the hundreth and threty first act parliament Eight King James the sixt It is statute that non of whatsoever quallitie estate of Function presume to Convocat conveen or assemble themselves togither except in the ordinary Judgments under the pains therinspecified Which acts are ratified and Cleared by the first act parliament first session first King Charles the second Lykeas by the hundreth and seventeinth act parliament seventh King James the sixt and seventy seventh act parliament six King James the sixt The pains of Lauburroues are to be divyded betwixt His Majestie and the pairtie And by the tuo hundreth and seventy third act parliament fyfteinth James the sixt The person Charged by Letters of Lauburroues is Lyable to the pains of Contravention albeit he hes not found Caution and if he hes found Caution he and his Cautioner are Lyable therin As also by severall acts of parliament the Disturbance of Communities Especially of Burghs in the enjoyment of their privledges is severely punishable Nevertheless it is of verity That the said Laird of Innes persewar and his predicessors have by their Chartors confirmed in parliament stood infeft in the Burgh of Barronie of Garmoth which lyes contiguous to the water and Fishings of Innerspay with express pouer and privliedge to the Inhabitants of the forsaid burgh of being the Fishers packers and curers of the salmond taken wpon the said River of Innerspay By vertue wherof They haveing been in constant possession above these hundreth years The forsaids Inhabitants did not only gain their Lyveliehood by a dayly allowance of so many salmond to themselves for their service But Lykewayes this did capacitat them to take Fews from the said Laird of Inneses predicessors with Reddondos of Salmond amounting to […] Barrells of Salmond per annum of yearly rent wherof they have bein in use custom and possession past all memorie Nothwithstanding wherof Sir Alexander Innes of Coxtoun Thomas Calder Merchant in Elgine Tacksman or otherwayes pretending right to some pairt of the water of Innerspey haveing projected to ruine the forsaids Inhabitants and the said rent arryseing from their Laubour and priviledge Did of Late in order therunto Threaten to alter or Invert the said persewars Right and Immemoriall possession and that in emulationein vicini by Masterfull superinduceing of straingers for being Fishers packers and Curers of the salmond taken on the said River and by removeing the Cruft houses over to the other syde therof Upon which surmise The said Laird of Innes haveing applyed to the saids Lords of privie Councill Did obtain Letters of Lauborroues expressly warranding to Charge the said Sir Alexander Innes and Thomas Calder to find Caution That the saids persewars should be harmeless and skaithless in the possession of their forsaid Right and priviledge and that they should find Caution for that effect under the penalties of three thousand Merks the said Thomas Calder according wherunto the same was execute wpon the thretteinth day of Apryll last bypast Notwithstanding wherof true it is and of verity that upon the first day of May then instant now last (which was the time of stricking or beginning to Fish in this season) The said Laird of Innes for himself and in name and behalf of the other persewars Did by way of Instrument at the water syde of the said Fishing Require the forsaid Thomas Calder for himself and as actor for the said Sir Alexander Innes To accept of the tuo bands of men (being eight men a band) whose right and priviledge it was to serve that Coble of the Fishing And that the forsaid Thomas Calder should nowayes molest them in Fishing the said water conforme to use and want But as the said Thomas Calder positively refused so he Immediatly ordered a bodie of men of the Lordships of Enzie and of the names and Designationes follouing under the Command of […] Gordon alias Leggie Gordon fewar in Dallachie viz: Andrew Gray, Alexander Annand, William Gordon, James Geddes, Andrew Innes, John Hay, James Packman, Thomas M’lean, Alexander Reid, Robert Taylor, John Anderson, John Reid, James Milne, Peter Taylor, John Cowie, and John Burges all tennents possessors and Inhabitants on the Lands and Lordship of Enzie To lift the said Coble from the Green of Garmouth and put the same in the River in order to Fish with some of the straingers abovenamed and the said Laird of Innes persewar haveing past to the Cruft house comonly the red Cruft house on the forsaid watersyde with eight of the said sixtein men whose time it was to serve the Fishing for that tyde and they being aboard the Coble boat and in possession of the netts and Ropes in order to doe their dutie which they offered by instrument in mainer forsaid The said Thomas Calder for himself and as haveing Commission from the said Sir Alexander Innes Did Command the forsaid unlaufull convocation of men to enter the said Coble violently upon the possessors therof and to Drag them out of the same from their netts and Ropes which accordingly was done by the persons abovenamed albeith they solemnly Declared they were not engadged with the said Thomas Calder nor had they undertaken to Fish the said water nor were they acquainted with any such Imployment As the saids Instruments taken therupon of the date forsaid more fully bears Wherthrow the haill forenamed persons are guiltie not only of ane unlaufull convocation of the Leidges and a most manifast breach of the peaceh through their masterfull invasion upon and intrusion into The said Laird of Innes persewar his undoubted right and priviledgs and Immemoriall possession at their oune hands without the least order of Law or Justice But Likewayes They and each of them have incurred a plain Contravention of the saids Letters of Lauburroues To the great prejudice of3 the said Laird of Innes and the other persewars Inhabitants of the said Toun of Garmouth their Livelihood and the said persewar the Laird of Innes his rent arryseing therfrom And therefore the haill forsaids Crimes or airt and pairt therof They ought and should not only be Decerned and ordained to Repone the said Laird of Innes persewar and the other Inhabitants forsaids to thre possession as in former years But Likewayes to desist and cease in time comeing from all such usurpation on the saids persewars thair Rights and priviledges and unwarrantable incroachment or their possession and use wont of Fishing packing and cureing the salmond taken wpon the said water of Innerspey But Likewayes that the said Sir Alexander Innes and Thomas Calder are each of them and William King of Newmilnes late provost of Elgine and James Stewart Baille there aught to be Decerned to make payment to the said persewars and each of them Conjunctllie and severally of the soumes of […] as the pains contained in the saids Letters of Lauburroues incurred by them through the Contravention and molestation above specified being the one half therof to the sais persewars And the other half therof to be payed to His majesties Cash keeper and Thesaurie And sicklyke the saids persons defenders and each of them Conjucntlie and severally aught to be Decerned in payment to the saids persewars of the soume of Tuo hundreth pound starling in name of Damnages and expenses and otherwayes punished in their persons and goods to the terror of others to Committ or doe the like in time Comeing And Anent the Charge given to the forenamed persones Defenders To have Compeared personally Before the said Lords of His Majesteis privie Councill att ane Certain day bygone To have Answer to the forsaid Complaint and to have heared and seen such order and course taken theranent as appertaines With Certification as in the said principall Letters and executions quherof at mair length is contained And the other Lybell being of Reconvention Raised and persewed before the saids Lords att the Instance of the saids Thomas Calder Tacksman of the Countes of Dumferlings Fishing on the Water of Innerspey Sir Alexander Innes of Caxtoun and Sir James Calder of Muirtoun his Cautioners and Jean Countes of Dumferling for her intrest With Concurse of Sir James Stewart His Majesties Advocat for his highnes intrest in the matter underwrytten Makeing Mention That where by the Laues of this and all weell governed nationes The unlaufll convocating the Leidges in armes And the violent and masterfull invading the subjects in the peaceable possession of their Laufull rights and possessions and the Masterfull inverting therof by Imposeing unwarrantable servitudes wpon any of the subjects by open Force and violence contrary to and inconsistant with the exercise of their free rights and possessions Especially after Lauburroues before the Lords of privie Councill have bein raised and duely execute against the aftermentioned Committers of the forsaids unlaufull practises and oppressions And for secureing the publict peace and preventing any such illegall Courses are Crimes of a high nature and severely punishable And particularly by the severall Laus and acts of parliament all men are prohibited to assemble or Convocat his majesties Leidges in hostile manner And specially by the fyft act parliament first King James the first It is statute that no man travell with more men then he can sustain under the pains therincontained and by the hundreth and thretty first act parliament eight King James the sixt It is statute and ordained that no person of whatsoever quallitie or Function presume to Convocat Conveen or assemble themselves togither exept in the ordinary Judgements under the pains therin expressed Which acts are Ratified and Cleared by the fourt act parliament first session first King Charles the second Lykeas by the hundreth and seventeinth act, seventeenth parliament King James the sixt and seventy seventth act parliament sixt King James the sixt The pains of Lauburroues are to be divyded betwixt his Majestie and the partie And by the tuo hundreth and sevety third act parliament Fyfteenth King James the sixth The person Charged by Letters of Lauburroues is lyable in the pains of Contravention with his Cautioner found by him In obedience to the said Charges As Also The violent and Masterfull hindering and obstructing any of the Leidges in the free exercise of their right and peaceable possession of their Fishings in the proper time and season therof are all crimes of ane high nature and aught to be severely punished Nevertheless The half of the Fishings of the Water of Innerspey haveing belonged to the late Earle of Dumferling and by him being provided to the said Countes of Dumfermling in Liferent she her authors and Tacksmen were in the quiet and peaceable possession thereof by Imploying such servants and fishers from time to time to serve them in the makeing use of the Coble netts and other Ingines for Fishing and in Building of Corfhouses for laying up and keeping there netts in when the season of Fishing was over and Lykewayes the said Countes of Dumfermling her authors and Tacksmen were in constant use to hyre and conduce any persons whom they thought fittest and agree with them wpon Innerspey And were in possession of a constant Course right and Libertie of altering and Chaingeing the forsaids servants and their wages from year to year or season to season as they thought most conduce to their profite and advantage Untill of Late that Hary Innes younger of that ilk Finding the forsaid fishing wpon Innerspey as weell as the other estate belonging to the Late Earle of Dumfermling to be mightily involved and Incumbered by the Competitions of Diverse Donators and many Creditros and that therby the due right and intrest therof was altogither neglected and not lookt after with that cure and concerned as formerly it was projected and contryved the Imposeing diverse heavie servitude wpon the forsaid Fishing which would in the end utterly destroy the same Such as That the tennents and Inhabitants of his toun of Garmouth lyeing upon the side of the said watter of Innerspey had the only right of Fishing theron and therfore that the saids persewars aught and should Imploy them and non else for serveing them in the forsaid Fishing And that the said Hary Innes and he only had the right to the share of the Fish which should fall to the forsaids Fishers for their said service And that his forsaids Inhabitants of Garmouth had the sole and only right to be Coopers Curers and packers of the Fish taken wpon the said River And for the better caryeing on the forsaid wicked oppression The said Harrie Innes prevailled with his Father to make a Resignation of the saids Lands of Garmouth with the forsaids servitudes specially mentioned therin as in Collour and pretext for his violent and Masterfull Imposeing the same by open deeds of violence In so farr as in the year Jaj vjc nynty eight and Jaj vjc Nynty nyn The said Harie Innes as the first stepp of Invasion wpon the forsaid Fishing He Compelled such of his men as were Imployed by William Gordon then Tacksman of the said Fishing To Deliver the Barrells of Salmond to the asid Harie Innes which were conditioned to have bein payed to the said Tacksman And where any of the said Fishers refused to sell the samond to him which they receaved for their hire He broke open their doors and caried them away And farder upon the […] day of Apryll Jaj vijc years or wpon ane or other of the days of the said moneth The said Hary Innes and his accomplices aftermentioned Fewars tennents or servants to him By open Force and Bangastrie seized upon and caried away the Cobles and netts belonging to the saids persewars and violently and Masterfully turned out their servants out of their saids Cobles and haveing Convocat and assembled a band of his oune men caused them to Fish the water wherof the persewars were tacksmen without aither their presence or allouance And albeit when the forsaid Fishing was sett in tack to the perewars at a publict Roup by authority of the Lords of Councill and session And that it was expressly provided as a condition of the said Roup That whoever offered therat behoved to Find Caution to preserve and defend the saids water and right of Fishing from the forsaid Innovations and servitudes and that the said Harie Innes being present and offering at the said Roup did therby acquiesie to the forsaid condition yet so far hath he bein from haveing the least regaird aither to the persewars right or authoritie of the Lords of session Interposed therto That upon the first day of May then instant now last or wpon ane or other of the dayes of the said moneth when the said Thomas Calder went to the water with sixtein men which is the ordinar number the forsaid fishing needs In order to lay on their netts and begin the Fishing in most peaceable mainer being all in their Fishing Cloaths without any armes offensive or defensive whatsoever even so much as a staff The said Hary Innes Bodin in Feir of weir accompanied with John Innes William Marishall David Dunbar, James Hay, William Roy, John and James Marishsalls, Davic Clerk, Collin Geddie, Alexander Ritchie Alexander Winster, John Anderson of Mathiemilne Alexander Galt, Robert Geddie, William Geddes, William Stronach, John Shand, Alexander Milne Alexander Duncan, William Geddes elder and younger and William Geddes youngest John Allan George Chalmbers, Francis Marishall James and Andrew Inneses Andrew Angus Alexander Chapman John Brolus elder and younger James Brolus youngest Alexander Thain James Shand Alexander Marshall David Robertson James Robertson Thomas Wilson Thomas Gray Andrew James and John Simpsons John Couie George and William Geddes Gilbert Geddie Andrew Marshalls elder and younger James Mitchell William Angus John Reid John Stewart Walter Stronach Angus Dumbar James Sutor James Anderson William Dumbart Walter Mavir Alexander and James Smuths James Laing Alexander Mavour John Hay David Hossack Alexander Hossack Alexander Gordon and John Brands all Inhabitants of the Burgh of Garmouth and Fewars tennents or servants to the said Hary Innes of that ilk to the number of sixtie persons and upwards and attended by a great Rable of women and other persons from the toun of Garmouth with their Lapss full of stones, Did order and Command a partie of his said armed men to attack and seize upon the Boat and netts belonging to the saids persewars and throw the Fisherman out therof Which was instantly done by the said Hary Inneses men their Leaping into the boat and throwing the persewars servants out therof and seizeing the netts they Fished with, And fished the water at their pleasure without any violence or oppression from the persewars who only took instruments therwpon and protested against the said Hary Innes both for Invadeing their possession and for a contravention of Lauburrous as the instrument taken therwpon and reated as pairt of the Lybell Bears The said Rable of women in the mean time for assistance and support to the said Hary Innes Throwing stones at the persewars Fishers and abuseing and Beating them in a most Barbarous manner Wherby the persewars right to the fishing begin interrupted in the violent manner abovementioned is licklie to become alogither useles and Improfitable to them And albeit for secureing the saids persewars in the peaceable possession of their said right and Fishing Did raise Lauburroues before the saids Lords of privie Councill and duly execute the samen against the said Henry Innes Chargeing him to find Caution to keep the said Thomas Calder one of the persewars harmeles and skaithles in the peaceable possession of his Tacks and possessions and that the said Hary hath found Caution for that effect under the penaltie of thrie thousand Merks Nevertheless he hath openly and manifastly contraveeneed the forsaid Lauburroues and hath incurred the forsaid pain of three thousand Merks The one half to be payed to the said Thomas Calder one of the persewars And the other half to His Majesties Receaver By the said Hary Innes his convocatting the Leidges and committing the open deeds of oppression Bangastrie and violence abovementioned against the saids persewars And therfore the haill forsaids persons or aither of them Conjunctlie and severally being found guiltie of the forsaids Crimes are airt and pairt therof They aught to not only to be punished in their persons and goods But Decerned and ordained to desist and cease from troubleing and molesting of the saids persewars in the peaceable possession of their fishing wpon the said Water of Innerspey and in hyreing and conduceing whatever persons they think fitt to serve them in the forsaid fishing In all time comeing wpon what termes and conditions they can best agree with them for and Likewayes The said Henry Innes and Duncan Forbes of Cullodin his Cautioner in the said suspension of Lauburroues aught to be Decerned to make payment of the soume of three thousand Merks scot mony as the pains contained in the saids Letters of Laubwrroues abovementioned The one half to the said Thomas Calder persewar and the other half therof To his Majesties use And sicklyke the saids defenders and each of them conjunctly and severally in the soume of two hundreth pound starling to be payed to the persewars to the terror others to committ the lyke in time comeing And Anent the Charge given to the saids defenders in the Reconvention who are persewars in the principall lybell To have Compeared before the saids Lords at ane certain day bygone To have ansuered to the forsaid complaint and to have heared and seen such order and course taken theranent as Appertained With Certification As in the said Letters of Reconvention and executions therof at mear lenth is contained The said principall Lybell being wpon the nynteinth day of June instant Called in presence of the saids Lords of His majesties privie Councill And the said Hary Innes and John Innes tuo of the persewars Compearing personally for themsleves and in name and behalf of the rest of the persewars And the saids Thomas Calder and Alexander Gordon tuo of the saids Defenders Compearing personally and the rest of the haill defenders being all Laufully cited oft times called and not Compearing And Sir Andrew Home Sir David Dalrymple Mr Francis Grant Mr John Murray Mr James Greme and Mr John Falconar Compearing as Advocats for the haill persewars And Mr David Cunninghame Mr James Hamilton and Sir Walter Pringle Compearing as Advocats for the haill Defenders The Lybell and ansuers therto being read And both parties procurators fully heared And the Lybell of Reconvention att the instance of Thomas Calder Merchant in Elgine Sir Alexander Innes of Coxtoun one of his Cautioners and Jean Countes of Dumferline for her intrest Against the said Henrie Innes John Innes Andrew Mitchell elder and other defenders being also Called In presence of the saids Lords of his Majesties privie Councill And the saids tuo persewars being. both personally present But the said Countes of Dumferline being absent albeit oft times called and not Compearing And Mr David Cunninghame Sir Walter Pringle and Mr James Hamilton Compearing as Advocats for the haill persewars And Sir Alexander Home Sir David Dalrymple Mr Francis Grant Mr John Murray Mr James Greme and Mr John Falconar Compearing as Advocats for the haill defenders The Lybells and ansuers made therto for the defenders With a petition for the said Innes of Coxtoun and these who are defenders in the Lybel wherunto they are called with him And another petition for the said Laird of Innes and the rest of the defenders In the lybell wherunto they are called with him being read and both parties procurators fully heared att the Councill barr And the saids Lords haveing considered both Lybells with the ansuers respective made therto They Admited the Lybells to the respective parties their probation as to the poynt of possession only And Remitted the poynt of right in debate betwixt both parties to be discust by the Lords of Councill and session And Recomended to the saids Lords of session to discuss the said poynt remitted to their Lordships summarly without abyding the courses of the Roll And the witnesses for both parties haveing Compeared or being absent as marked in the Rolls they made faith at the Councill bar And the saids Lords of his Majesties privie councill Nominated and Appoynted a Committie of their oune number to examin the witnesses in the poynt forsaid Remitted to the said Committie Reserveing all objections against the witnesses to be proponed and discust before the said Committie And Appoynted a time for the Committie to meet And The saids Lords of privie Councill Admitted the Compearance of Thomas Calder Merchant in Elgine and Alexander Gordon alias Leggie Gordon of Over Dallachie as sufficient for the haill defenders in the proces wherin these persons are Called And sicklyke Admitted the Compearance of Henry Innes younger of that ilk and John Innes as sufficient for the haill defenders Called in the proces wherin the said Laird of Innes and John Innes are called The saids Thomas Calder and Alexander Gordon first enating themselves in the books of privie Councill That the rest of the defenders called in the process wherin they defender caled as said is shall obtemper and fulfill the sentence of Councill that shall be given and pronounced against them And the said Henry Innes and John Innes also Enacting themselves in the forsaids books that the rest of the defenders called in the proces wherin they Called as defenders shall obtemper and fulfill the decreit of Councill which shall be given and pronounced against them And the said Committee haveing mett according as is appoynted They took and receaved the oaths and depositions of Diverse and sundrie Famous witneses for aither partie for proveing the poynt of possession admitted to their respective probations As the oaths and depositions of the saids witnesses for aither partie duely subscryved by them extant in proces bears And the said Thomas Calder Tacksman of Dumferlines Fishing and Defender in Innes his proces and persewar in the Reconvention acknouledged before the said Committie under his oune hand that he Fished the Coble sett in tack to the Laird of Coxtoun and him by the Enzie men and others and did not allow the Garmouth men to fish therin this season And therafter the said Sir Alexander Innes of Coxtoun and the said Thomas Calder Tacksman of Dumferlines Fishing gave in a petition to the Lords of His majesties privie Councill Shewing That in the mutuall lubells both principall and Reconvention pursued before the saids Lords by the Laird of Innes and the petitioners hinc inde against others att Calling therof The saids lords were pleased to remitt to a Committie of their number to examine witnesses wpon aither syde The Laird of Innes for proveing his possession of the alleadged servitude of Imposeing his men only for fishing the said water Exclusive of all others and the petitioners to prove Interruptions and that it was always Customarie and optionall to the Earles of Dunfermling and their Tacksmen of the said fishing to Imploy aither the Garmouth men belonging to Innes or any others for fishing the said water as they found most convenient for the service and there being many witnesses examined wpon the Laird of Inneses syde (all of them being his oune tennents haveing come up wpon the first citation given them) and non at all examined for the petitioners save only thrie and there being a great many more witneses cited for the petitioners who can make the saids Interuptions and constant customes perfectly clear and evident (being Long inhabitants in the Bounds) who are certainly wpon the Road comeing up and the petitioners are running the ordinary course of Dilligence against them by Caption Wherby the eight day of July alloued for bringig them up And therfore Humbly Craveing the saids Lords to stopp the advyseing of the depositions of Innes his witneses till the said eight day of July be past that in the mean tie the petitioners witnesses may be lykewayes examined and the saids Lords may have the haill matter fully before them and give their Decision accordingly therin As the said petition bears Which petition haveing bein Read in presence of the saids Lords of His Majesties privie Councill this day And the saids Lords haveing at the same time advyesed and considerred the depositinos of the witnesses adduced by aither partie in the above proces They Find that the Laird of Innes and his predicessors have bein in possession of Fishing with his Garmouthmen in the Fishing of the water of Innerpsay and that he hath bein disposest therf Therfore Have Reponed and heirby Repones the said Laird of Innes to his possession of his Fishing with the Garmouthmen in the water and Fishing of Innerspay: what belonged to the Earle of Dumfermling as the sole and only Fishers of the said water and Fishings of Inverspey with the said Garmouthmen And have Refused and heirby Reduses the desyre of the said petition given in by the Laird of Coxtoun And ordains Letters of Horning on fyftein dayes and others needfull to be direct heiron in forme as effeirs

1. NRS, PC2/28, 90v-98v.

2. Insertion.

3. The words ‘the great prejudice’ are an insertion.

1. NRS, PC2/28, 90v-98v.

2. Insertion.

3. The words ‘the great prejudice’ are an insertion.