Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1687.
Fothringhame of Poury v. Graham of Clavers, Northesk, and Panmuire
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June 10.—Fothringhame of Poury gives in a bill against General Graham of Clavers, alleging he had violently stopped his possession of some assize fish due to him by the infeftments in Brughty Castle when Lord Gray had it, viz. nine fish out of every boat, for their liberty of anchoring on the rocks there in storms, and to gather bait; which one infeft in wair may hinder any to do on his sands. See Skeen, de Verb. Significat. voce Wair.
The Lords ordained Poury to condescend on the deeds of violence. But he was not able, farther than that Clavers had discharged his own tenants to pay it; which he might do: but, as chief magistrate and constable of Dundee, he allowed the fishers in the market to refuse him payment.
The Lords discharged Clavers to stop him in his possession, seeing turbatus et spoliatus est ante omnia restituendus; but found Poury could not bring in the point of right to be discussed summarily on a bill, unless Clavers consented, who was just going for London. And, seeing some of the fishers had suspended, and others had advocated, they ordained the cause to be brought in in common form, on the discussing of these, or by a declarator. Vide 21st July 1687.
Vol. I. Page 455.
July 21.—Fothringham of Poury's case against Northesk, Panmuire, and Clavers, mentioned 10th June 1687, was reported by Edmonston; and the Lords find his charter cum piscibus gives him a sufficient right and title to prescribe the assize-duty of nine fishes out of every boat that passes by Brughty-castle, once belonging to the Lord Gray, for their anchoring on the rock, and gathering bait on his sands, if so be he had possessed 40 years by virtue of that title: though it was alleged,—1mo, The clause, cum piscibus, was no more than cum piscationibus, a mere liberty to fish. But if it had meant a duty out of other folks' boats, it would have been so conceived. 2do, This cannot introduce a servitude upon my lands and tenants, not being exacted on the land, but at sea; and so the master's knowledge et patientia, to induce prescription, cannot be here presumed.
As for Clavers, he was 17 years of these 40 a minor, and so they must prove 40 years before that; likeas there were other interruptions.
