Att Edinburgh The Second day of February Jaj vic Nyntie Nyne years
D1699/2/2
D1699/2/2
Act
Act and Remitt Udney of Auchterellen Against Forbes of Wattertoune et e contra
Anent The Lybell or Letters of Complaint raised before the Lords of his majesties privy Councill at the instance of […] Udney of Auchterellen With Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwrittin Making Mention, That wher by the Lawes of this and all other weell governed nationes and by the Lawes and acts of parliament of this kingdome the violent and Sumar inverting of any of his majesties Lediges their possession without any order of Law, and breaking in peices Cruives and breaking of Damns and Stopting of a goeing milne as also the unlawfull Convocation of his majesties Leidges with Weapon invasive, and doeing of deeds under cloud and Sillence of night to the prejudice of any of his Majesties Lridges be all Crymes of ane high nature, and severly punishable by the Lawes and acts of parliament of this kingdome Nevertheless It is of verity that the said pursuer haveing ryd by progress to a Chartor under the great Seall in the year Jaj vic and thrie Infavors of Alexander Annan then of Auchterellen of the Lands of Auchterellen with the Salmond fishing on the watter of Ithan adjacent to the saids Lands and ane ample power and priviledge of Setting up and Errecting Cruives upon the most Commodious place of the said watter And by vertue of this Clause Containeing the fishings, The said pursuers authors and predecessors have ever been Since the date of the said Chartor in ane uninterupted and peaceable possession of fishing by Coble and nett and otherwayes upon the said watter of Ithain till within these few moneths interupted by the Laird of Wattertoune, and the said pursuer haveing Lately Conforme to the said Clause of the Chartor built and sett up a Cruive upon his oun damn dyke in alse regular and legall a maner as any Cruive ought to be Conforme to the acts of parliament made theranent yett Thomas Forbes of Wattertoune after the said Cruive was built and sett in ded upon the Tenth, Eleventh Twelth or ane or other of the dayes of the moneth of August Last by past Conveen John Gairn at the Milne of Wattertoune John Chrystie in Ellon, Alexander Martine in Tarmishie Thomas Temple in Ellon and others his accomplices to the number of Twentie or threttie men with polls forks Gavelochs quarrell mells, Staffs Long polls hammers and other weapons and instruments and Clandistinely under Silence and Cloud of night came to the Milne Damn wher the said Cruive was sett up, and in a violent and hostile maner brock the said Crive in peices and threw doune the said damn dyke so that the milne was suscless and stopt till the damn dyke was rebuilt By all Which It is manifast that the said Laird of Watterroune and his forsaids Accomplices abovenamed are guilty Airt and part of ane open and Manifast Ryot, and therfore they ought and Should not only be decerned to put in the said Crive, Bot also Decerned in the Soume of […] of Damnadges and otherwayes punished in their persones and good to the teror and example of others to Committ the Like in time comeing And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the grounds of the said Complaint and to have heard and seen such order and Course taken theranent as appertaines as in the said principall lybell and executiones therof more fully is Contained, And Alse Anent the Lybell of Reconventione raised before the saids Lords of privy Councill at the instance of the said Thomas Forbes of Wattertoune With Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwrittin That wher by the Lawes of this realme particularly the act Eliventh James first Parliament first the Wydnes of the hecks of Salmond Cruives is appointed to be thrie Inches And not only by the act James the fifth parliament fourth Caput Seventeinth are the holders of Cruives against the Law punished as Slayers of Reid fish id est the Tinsell of their lyfe for the thrid fault be the fifteinth act fourtein parliament James the second, and the act Seventie thrie parliament, Sixth James the fourth Bot Likewayes all Landed Gentlemen are by the act Sixtie Eight parliament Nynth of Queen Mary Ordained under Certaine paynes and penalties to put the acts anent the doun putting of inlawfull Cruives to due executione within their respective bounds, and by the Commissione Granted to Certaine Judges for destroying of un Lawfull Cruives non are exempted from the executione of the said Commission Bot Such as are infeft and also in possession of holding Cruives, providing the hecks be not the due widnes aforsaid Likeas the Contempt of the Authority of the Supream Judges of the Land by attempting upon Innovations anent matters of Judiciall Dependance before them, or the Cause be brought to a Closse Is a Cryme and fault of no Small Consequence as tending the partie so doer his takeing right to himself at his oun hand, Likeas the Missrepresenting of the Leidges to the Lords of privy Councill as guilty of violent Invassions and breaches of peace in the right time while ther is no ground for any such accusation is a Cryme and fault highly punishable, And True It is That Robert Udney of Auchterellen pretending a right to Salmond fishing on the watter of Ithan, whose pretensions and rights were drawn in question before the Lords of Councill and Session by way of Reduction and Improbation at the said pursuers instance upon his and his authors unquestionable infeftments from the one thousand and five hundred year of God forwards of fishing upon the said watter of Itham from the Macher foord to the Foord of Fyvie Which is farr above the bounds of the defender his said pretended fishing and within which bounds the said defender cannot alledge that ever he or his authors were in use of holding of Cruives, notwithstanding wherof and dureing the dependance of the said proces of reductione He the said defender did at his own hand adventure in August Last to build a Cruive in his milne damne dyke to the great distructione and detriment of the said pursuers Salmond fishing in so much that the hecks of the said usurped Cruive were not above two inshes wid at Least for within the widnes aforsaid appointed be act of parliament and the said pursuer upon his being Certiorat of such ane Usurpation in the said defenders pairt, Haveing according to the facultie allowed to Landed Gentlmen be the act of parliament aforsaid come with men and matterialls Suitable for demolishing of the said unlawfull Cruive Did in day Light and with Sun Shyne put down and demolish the same, Which the said defender has wrongeously represented to the Lord of his Majesties privy Councill, as if the said pursuer hade in the night time and with force of armed men invaded the defenders ancient possession of Cruive fishing and violently sett up his goeing milnes Brock his damns, and did other unjustifieable things, while as the said pursuer acted nothing bot by warrand of Law, and in his own defence against the said defender his made usurpations upon him pendente Lite, And of which Crymes of unwarrantable Innovateing of possessione pendente Liti, and of holding unlawfull Cruives of hecks within the widnes appointed by the act of parliament and of Misrepresenting the Said pursuer as said is, The said defenders being found guilty He ought to be punished in his person and purse to the teror of others and to pay to the said pursuer the Soume of […] in name of Damnadges by reasone of the expences and trouble the said defender his said vexatious and groundless Misrepresentation and groundless Misrepresentatione aforsaid has occasioned the said pursuer And Anent the Charge given to the Said Robert Udney defender To Have Compeared before the Saids Lords at ane Certaine day now bygone To have Answered to the points of the above Complaint, and to have heard and seen Such order and Course taken theranent as they should find Just as in the Said Letters of Reconvention at more Length is Contained, Which Lybell at the Instance of the above Udney of Auchterellen against the above Thomas Forbes of Wattertone being this day Called in presence of the Lords of his majesties privy Councill and the above lybell of reconvention The said Forbes of Withertoune against the said Udney of Auchterellen being Likewayes Called being Likewayes Called in presence of the Saids Lords, and both parties Compearing personally, and Mr David Dalrymple, Sir Androw Home and Mr James Fergusone Compearing as procurators for the said Udney of Auchterellen pursuer in the principall Cause and defender in the reconventione, And Mr David Forbes advocat Compearing as procurator for the said Forbes of Wattertoune defender in the principall Cause and pursuer in the reconventione, and the rest of the defenders in the principall Cause The principall Lybell and answers made therto, And also the lybell reconvention being read, And the saids Lords haveing Considered both Lybells with answers made to the principall Lybell, They hereby Remitt both Lybells to the Lords of Councill and Session to be Summarly proceeded in and discust before their Lordships both as to the point of right and possession and as to the damnadges above Lybelled on.
Att Edinburgh The Second day of February Jaj vic Nyntie Nyne years
D1699/2/2
Act
Act and Remitt Udney of Auchterellen Against Forbes of Wattertoune et e contra
Anent The Lybell or Letters of Complaint raised before the Lords of his majesties privy Councill at the instance of […] Udney of Auchterellen With Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwrittin Making Mention, That wher by the Lawes of this and all other weell governed nationes and by the Lawes and acts of parliament of this kingdome the violent and Sumar inverting of any of his majesties Lediges their possession without any order of Law, and breaking in peices Cruives and breaking of Damns and Stopting of a goeing milne as also the unlawfull Convocation of his majesties Leidges with Weapon invasive, and doeing of deeds under cloud and Sillence of night to the prejudice of any of his Majesties Lridges be all Crymes of ane high nature, and severly punishable by the Lawes and acts of parliament of this kingdome Nevertheless It is of verity that the said pursuer haveing ryd by progress to a Chartor under the great Seall in the year Jaj vic and thrie Infavors of Alexander Annan then of Auchterellen of the Lands of Auchterellen with the Salmond fishing on the watter of Ithan adjacent to the saids Lands and ane ample power and priviledge of Setting up and Errecting Cruives upon the most Commodious place of the said watter And by vertue of this Clause Containeing the fishings, The said pursuers authors and predecessors have ever been Since the date of the said Chartor in ane uninterupted and peaceable possession of fishing by Coble and nett and otherwayes upon the said watter of Ithain till within these few moneths interupted by the Laird of Wattertoune, and the said pursuer haveing Lately Conforme to the said Clause of the Chartor built and sett up a Cruive upon his oun damn dyke in alse regular and legall a maner as any Cruive ought to be Conforme to the acts of parliament made theranent yett Thomas Forbes of Wattertoune after the said Cruive was built and sett in ded upon the Tenth, Eleventh Twelth or ane or other of the dayes of the moneth of August Last by past Conveen John Gairn at the Milne of Wattertoune John Chrystie in Ellon, Alexander Martine in Tarmishie Thomas Temple in Ellon and others his accomplices to the number of Twentie or threttie men with polls forks Gavelochs quarrell mells, Staffs Long polls hammers and other weapons and instruments and Clandistinely under Silence and Cloud of night came to the Milne Damn wher the said Cruive was sett up, and in a violent and hostile maner brock the said Crive in peices and threw doune the said damn dyke so that the milne was suscless and stopt till the damn dyke was rebuilt By all Which It is manifast that the said Laird of Watterroune and his forsaids Accomplices abovenamed are guilty Airt and part of ane open and Manifast Ryot, and therfore they ought and Should not only be decerned to put in the said Crive, Bot also Decerned in the Soume of […] of Damnadges and otherwayes punished in their persones and good to the teror and example of others to Committ the Like in time comeing And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the grounds of the said Complaint and to have heard and seen such order and Course taken theranent as appertaines as in the said principall lybell and executiones therof more fully is Contained, And Alse Anent the Lybell of Reconventione raised before the saids Lords of privy Councill at the instance of the said Thomas Forbes of Wattertoune With Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwrittin That wher by the Lawes of this realme particularly the act Eliventh James first Parliament first the Wydnes of the hecks of Salmond Cruives is appointed to be thrie Inches And not only by the act James the fifth parliament fourth Caput Seventeinth are the holders of Cruives against the Law punished as Slayers of Reid fish id est the Tinsell of their lyfe for the thrid fault be the fifteinth act fourtein parliament James the second, and the act Seventie thrie parliament, Sixth James the fourth Bot Likewayes all Landed Gentlemen are by the act Sixtie Eight parliament Nynth of Queen Mary Ordained under Certaine paynes and penalties to put the acts anent the doun putting of inlawfull Cruives to due executione within their respective bounds, and by the Commissione Granted to Certaine Judges for destroying of un Lawfull Cruives non are exempted from the executione of the said Commission Bot Such as are infeft and also in possession of holding Cruives, providing the hecks be not the due widnes aforsaid Likeas the Contempt of the Authority of the Supream Judges of the Land by attempting upon Innovations anent matters of Judiciall Dependance before them, or the Cause be brought to a Closse Is a Cryme and fault of no Small Consequence as tending the partie so doer his takeing right to himself at his oun hand, Likeas the Missrepresenting of the Leidges to the Lords of privy Councill as guilty of violent Invassions and breaches of peace in the right time while ther is no ground for any such accusation is a Cryme and fault highly punishable, And True It is That Robert Udney of Auchterellen pretending a right to Salmond fishing on the watter of Ithan, whose pretensions and rights were drawn in question before the Lords of Councill and Session by way of Reduction and Improbation at the said pursuers instance upon his and his authors unquestionable infeftments from the one thousand and five hundred year of God forwards of fishing upon the said watter of Itham from the Macher foord to the Foord of Fyvie Which is farr above the bounds of the defender his said pretended fishing and within which bounds the said defender cannot alledge that ever he or his authors were in use of holding of Cruives, notwithstanding wherof and dureing the dependance of the said proces of reductione He the said defender did at his own hand adventure in August Last to build a Cruive in his milne damne dyke to the great distructione and detriment of the said pursuers Salmond fishing in so much that the hecks of the said usurped Cruive were not above two inshes wid at Least for within the widnes aforsaid appointed be act of parliament and the said pursuer upon his being Certiorat of such ane Usurpation in the said defenders pairt, Haveing according to the facultie allowed to Landed Gentlmen be the act of parliament aforsaid come with men and matterialls Suitable for demolishing of the said unlawfull Cruive Did in day Light and with Sun Shyne put down and demolish the same, Which the said defender has wrongeously represented to the Lord of his Majesties privy Councill, as if the said pursuer hade in the night time and with force of armed men invaded the defenders ancient possession of Cruive fishing and violently sett up his goeing milnes Brock his damns, and did other unjustifieable things, while as the said pursuer acted nothing bot by warrand of Law, and in his own defence against the said defender his made usurpations upon him pendente Lite, And of which Crymes of unwarrantable Innovateing of possessione pendente Liti, and of holding unlawfull Cruives of hecks within the widnes appointed by the act of parliament and of Misrepresenting the Said pursuer as said is, The said defenders being found guilty He ought to be punished in his person and purse to the teror of others and to pay to the said pursuer the Soume of […] in name of Damnadges by reasone of the expences and trouble the said defender his said vexatious and groundless Misrepresentation and groundless Misrepresentatione aforsaid has occasioned the said pursuer And Anent the Charge given to the Said Robert Udney defender To Have Compeared before the Saids Lords at ane Certaine day now bygone To have Answered to the points of the above Complaint, and to have heard and seen Such order and Course taken theranent as they should find Just as in the Said Letters of Reconvention at more Length is Contained, Which Lybell at the Instance of the above Udney of Auchterellen against the above Thomas Forbes of Wattertone being this day Called in presence of the Lords of his majesties privy Councill and the above lybell of reconvention The said Forbes of Withertoune against the said Udney of Auchterellen being Likewayes Called being Likewayes Called in presence of the Saids Lords, and both parties Compearing personally, and Mr David Dalrymple, Sir Androw Home and Mr James Fergusone Compearing as procurators for the said Udney of Auchterellen pursuer in the principall Cause and defender in the reconventione, And Mr David Forbes advocat Compearing as procurator for the said Forbes of Wattertoune defender in the principall Cause and pursuer in the reconventione, and the rest of the defenders in the principall Cause The principall Lybell and answers made therto, And also the lybell reconvention being read, And the saids Lords haveing Considered both Lybells with answers made to the principall Lybell, They hereby Remitt both Lybells to the Lords of Councill and Session to be Summarly proceeded in and discust before their Lordships both as to the point of right and possession and as to the damnadges above Lybelled on.
