he Watt v. that in the execution of it there was a certain amount of precipitance and harsh- No. 158. ness which might well have been avoided. If the Sheriff-clerk, having obtained his warrant, had informed his brother practitioner that he held it, and requested July 19, 1873. him to save the necessity of having it executed by returning the process, Ligertwood would have acted a more judicious part, and probably would have prevented the and Another. scandal which occurred. That both sides should bear their own costs is probably a just result, and is certainly one in which I am prepared to acquiesce. But in the views which have been expressed as to the regularity of the procedure I cannot concur. I think it was quite regular; and holding that opinion, it is only fair to those concerned that I should explain the grounds of it. It must be kept in mind what the occasion and the object of the procedure were. The occasion was the abstraction of the process in open Court, pending the discussion of the case, and in spite of the orders of the Judge, by the procurator who presented the petition, and that for the purpose of obstructing the administration of justice by preventing the Judge from writing his judgment upon it. The object of the procedure on the part of the clerk was, in obedience to the direction of the Judge, to compel the immediate return of the process. I am of opinion that for this purpose the procedure was entirely appropriate. No doubt the Judge might at once have granted a warrant to apprehend Mr Watt for contempt. He might also, had he chosen, have granted a process-caption, or, what is the same thing, a warrant to imprison Mr Watt until the process was restored, without the intervention of the clerk. But he was also entitled to do what he did-to leave the responsibility of recovering the process in these circumstances on the clerk, and to grant his warrant on his application. The right of the clerk to apply at all times for a process-caption when a process is unduly withheld cannot be doubted. He is responsible to the Court for it, and cannot part with it excepting under their regulations. But the supposed irregularity is said to consist in the want of notice to Mr Watt, and this is founded on the practice which is followed when a process has been regularly borrowed, and the agent's receipt has been granted for it in the clerk's books. I think the analogy entirely inapplicable and misleading, and consider the evidence led on this subject wholly irrelevant. The practice in this Court of lending the process on a borrowing receipt rests on the Act of Sederunt of the 20th November 1711, sec. 8, by which the clerks were discharged to part with processes except on receipt. Under this regulation the borrower is legally in possession of the process, and the twenty-four hours' notice which practice has introduced before a caption can be granted is not only reasonable, but essential to the conduct of business. But the power of the Court to grant a caption for a process improperly detained by the clerk, and of the clerk to apply for it, does not depend on or originate in the borrowing receipt. This procedure was certainly in practice long before 1711. The power of the Court to grant a process-caption rests on the principle laid down by Lord Stair (iv. 47, 23), in a passage in which he explains the power of the Court to issue caption without a charge on "contempt or disorders in process," and the right of the clerk to apply for it rests on his obligation to have the process in his hands. The borrowing receipt, no doubt, judicially ascertains the fact of the process being in the borrower's hands, and there may be cases in which it would be necessary for the clerk to state the special circumstances in which he had been deprived of the process, and for the Court to inquire how the warrant was issued. But we have no such case here. Mr Watt had acquired the process illegally. The Court were cognisant of the circumstances, and had already decided that his possession of it was illegal from the first, and that it was his duty instantly to restore it. There was nothing for the clerk to explain to the Court, or for the Court to inquire into, and the application being one incidental to a cause which was in the course of adjudication, and its object being instant restoration of the process, notice would have been entirely inappropriate, and would simply have enabled the wrong-doer to succeed in obstructing the course of justice. LORD COWAN was absent. THIS interlocutor was pronounced on 27th October 1871:-"Find that, No. 158. July 19, 1873. No. 159. July 19, 1873.* 1ST DIVISION. B. on the occasion in question, upon a petition praying for interdict and interim interdict at the instance of Mrs Jane Mouat, presented to the Sheriff of Aberdeenshire by the pursuer as agent for the said petitioner, and upon a caveat presented for the respondent in that petition, the Sheriff-substitute, after hearing parties' procurators, pronounced his judgment that the prayer for interim interdict should be refused: Find that when the Sheriff was proceeding to have his judgment to that effect written out, the pursuer at his own hand took possession of the petition, then in manibus curiæ, and notwithstanding the intimation of the Sheriff-substitute that he desired the petition to remain with the clerk, in order that the interlocutor might be written upon it, carried off the petition, and prevented the interlocutor from being written thereon, and thereafter, as it appeared, destroyed the said petition in his own place of business: Find that the conduct of the pursuer in so acting was illegal and culpable, and amounted to a contempt of the Sheriff's jurisdiction and authority: Find that, in these circumstances, when the said petition had been so carried away, it was competent to the Sheriff, within whose cognisance and in whose presence the pursuer's proceedings took place, to have issued a summary order or warrant ordering the pursuer to restore the petition of which he so took possession, and failing his immediately restoring the same, for his immediate imprisonment till that order was implemented: But find that the conduct of the Sheriff-clerkdepute, in obtaining and carrying into execution a warrant in the form of an ordinary process-caption, without any notice or special warning to the pursuer that such was to be issued or executed, was an inappropriate and irrgular proceeding: Find, at the same time, that as no further action can be taken on the said processcaption or warrant, it is unnecessary to reduce or set aside the same: And further, find that as it was the pursuer's own illegal and culpable conduct and contempt of the Sheriff's authority which led to the necessity of a proceeding or warrant against him, and as he was in any view liable to be proceeded against in a summary manner, the pursuer is not entitled to damages as against either the principal Sheriff-clerk or against the Sheriff-clerk-depute for the error in point of form committed by the Sheriff-clerk-depute in the discharge of his official duty: Therefore, in the whole circumstances, dismiss the action, and decern, and to that extent adhere to the interlocutor of the Lord Ordinary: But find no expenses due to either party." W. OFFICER, S.S.C.—TODS, MURRAY, & JAMIESON, W.S.—Agents. ALEXANDER NICOL AND OTHERS (Dr Milne's Trustees), Pursuers.— THE LORD ADVOCATE (for Commissioners of Woods and Forests), Salmon-fishing-Barony Title-Prescriptive Possession.-Prescriptive possession of salmon-fishings in the sea will not confer a right of salmon-fishing on the proprietor of a barony bounded by the sea, when such possession cannot be ascribed to the barony title. Ante, vol. vi., p. 972, and vol. vii., p. 26. In this action, raised by Dr Milne's trustees against the Commissioners * Decided on January 10, 1869. of Woods and Forests, the pursuers concluded for declarator, that the pur- No. 159. suers had the sole and exclusive right to the salmon-fishings in the sea and sea-coast ex adverso of the pursuers' lands and barony of Muchalls July 19, 1873. in the county of Kincardine. Milne's Trus tees v. Lord The pursuers founded upon a crown charter of resignation dated in Advocate. 1806, containing a grant of the lands and barony "cum decimis rectoriis et vicariis earundem et piscationibus alborum piscium et cymbis piscariis lie fisherboats cum molendino de Muchalls," &c., and they averred prescriptive possession of the salmon-fishings on this title. The Lord Ordinary (Barcaple) found that the barony title founded on was a sufficient title to the salmon-fishings if followed by prescriptive possession of such fishings. The First Division, on July 1, 1868, adhered to this interlocutor, and subsequently the following issue was adjusted and sent to trial:-"It being admitted that the pursuers are proprietors of the lands and barony of Muchalls, excepting the parts and portions of the said lands and barony undermentioned, viz., . . . Whether for forty years prior to 16th April 1862, or for time immemorial, the pursuers and their predecessors and authors have, as proprietors of the said lands and barony of Muchalls, possessed the salmon-fishing in the sea and sea-coast opposite to the said lands and barony of Muchalls, belonging to the pursuers." At the trial it was proved that in 1824 Mr Silver of Netherley, then proprietor of the barony, had presented a petition to the Treasury, praying for a grant of salmon-fishings. It was not proved that there was any fishing of salmon other than going out with a feith-net, and that few salmon had ever been caught. It was then arranged between the parties, on the suggestion of the Court, that as the true question was whether the possession had by the pursuers and their predecessors was in law sufficient possession for forty years within the meaning of the issue a verdict should be taken for the pursuer, subject to the opinion of the Court on the said question, and with power to the Court to enter up a verdict for the defenders if they should be of opinion, on a consideration of the notes of evidence and of the documents put in evidence, that the possession proved to have been enjoyed by the pursuers and their predecessors during forty years preceding the 16th of April 1862, is not in law sufficient possession within the meaning of the issue. A verdict for the pursuers was accordingly found by the jury. When the case came before the First Division the Court held that for some portion of the prescriptive period the possession by the pursuers could not be ascribed to their barony title. In 1821 the proprietor of the barony had applied for a crown grant of salmon-fishings, which he would not have done if he had supposed that he had in his barony title a sufficient title to the fishings. Again, in 1824, and lastly, in 1859, the possession was not ascribed to the barony title, and therefore the possession had by the pursuers not being in law sufficient possession the verdict must be entered up for the defenders. TODS, MURRAY, & JAMIESON, W.S.-ANDREW MURRAY, W.S.-Agents. No. 160. July 19, 1873. THE LORD ADVOCATE (for the Commissioners of Woods and Forests), Pursuer.-Lord-Adv. Moncreiff-Sol.-Gen. Young-T. Ivory. SIR JAMES HALL, Baronet, Defender.-D.-F. Gordon-Macdonald. Salmon-fishing-Possession.-Held that the proprietor of a barony who had v. Hall. not an express grant of salmon-fishings had not instructed a right thereto by proving that the tenants of cottages on his estate had been in use to fish for salmon in the sea for their own behoof without paying rent therefor. v. Hall. No. 160. THIS action was raised in 1869 by the Lord Advocate, on behalf of the Commissioners of Woods and Forests, against Sir James Hall of Dunglass, July 19, 1873. Baronet, for declarator "that the salmon-fishings in the sea and other waters Lord Advocate ex adverso of the lands and estates in the counties of Haddington and Berwick, the property of the said Sir James Hall, or of any part thereof, belong 1ST DIVISION. to the Crown, and form part of the hereditary revenues of the Crown in Scotland, falling under the management, administration, and control of the said Commissioners of our Woods, Forests, and Land Revenues, and that the said James Hall has no right or title to fish for salmon, grilse, or salmon trout in the sea and other waters ex adverso of any part of his said lands and estates in the counties of Haddington and Berwick by means of stake-nets or bag-nets, or by net and coble, or in any other manner of way." B. The estates of the defender consisted of two baronies, the barony of Dunglass and the barony of Cockburnspath, but he had no express grant of salmon-fishings. The following issues were sent to trial:- -"It being admitted that the pursuer in the issue, Sir James Hall, is proprietor of the lands and barony of Dunglass, and it being also admitted that he is also proprietor of the barony of Cockburnspath: (1) Whether, for forty years prior to 3d March 1869, or for time immemorial, the pursuer and his predecessors and authors have, as proprietors of the said lands and barony of Dunglass, possessed the salmom-fishings in the sea and other waters opposite to the said lands and barony of Dunglass belonging to the pursuer? (2) Whether for forty years," &c. The issue in regard to the barony of Cockburnspath, was in the same terms. The nature of the evidence appears from the charge of the presiding Judge. LORD ARDMILLAN.-Gentlemen of the jury, the case before you is partly a case involving principles of law, and partly a case involving considerations of equity. The pursuer of the action is the Lord Advocate on behalf of the Crown, and on behalf of the public; the defender in the action is Sir James Hall, proprietor of the estates of Dunglass and Cockburnspath; and the question is, whether Sir James Hall is entitled, as under his title from the Crown, to the salmon-fishing ex adverso of his properties. In order to establish that, he must instruct possession. It is not in dispute before you that Sir James Hall does not hold a title from the Crown, conferring on him a property in the salmonfishings, but only a title conferring on him a general right of fishings in salt water and in fresh water, which is not construed in law as including a right to salmon-fishings. It is necessary for the proprietor who produces a title with right to fishings generally to instruct his possession for the purpose of explaining his right, and erecting it into a right to salmon-fishing. Therefore the pursuer in the issue is Sir James Hall, who undertakes to shew to you that he and his predecessors have, as proprietors of the baronies of Dunglass and Cockburnspath, possessed the salmon-fishings in the sea and other waters opposite these baronies for more than forty years. Now, it is quite true that a barony title is a very favourable title, and that it forms a very favourable foundation for a proof of possession in order to create or rear up into a title to salmon-fishing a general title to fishings in salt and fresh waters. But, notwithstanding that, the holder of the barony title must instruct his possession, as proprietor, of the salmonfishings. Now, it is very obvious to you, and I need not dwell upon it, that what shall be sufficient possession to instruct such a title must depend very much upon the nature of the subject and the circumstances of the case. In this case, the subject is confessedly of very little value; and in this case also the possession is of a somewhat unusual kind. It is important to bear in mind that from beginning to end no lease for any rent payable in money, or any rent whatever, has ever been granted by Sir James Hall or his predecessors. That is the first important Lord Advocate v. Hall. matter which cannot be omitted. The second is, that while there has never been No. 160. any such lease with a return of rent for possession, there never has been, if I remember right-and I have gone over the evidence very carefully-there never July 19, 1873. has been any money rent paid at all. Not only has there never been a lease for a money rent, but there never has been a money rent at all. But then, the pursuer of the issues maintains-first, that the whole possession of this fishing has been by tenants upon his estate; and I think that is clear. I think it is proved by every witness who spoke on the subject that, with the exception of two occasions, nobody has ever attempted to exercise the right, or to pursue the vocation of fishing for salmon or grilse in these waters except the persons who dwell as tenants upon the Dunglass estate. The two exceptions are-first, a night expedition from Burnmouth, of which we hear on one solitary occasion. Whether or not the Burnmouth fishermen caught any fish on that occasion is not proved, but it is proved that they did not come back, which I think shews that they did not find it was very encouraging or remunerative. But they did try it once, and no more. The other occasion was when Pike and Johnstone, who were both salmon-fishers, were sent from Northumberland by Mr Bell to make an attempt or inquiry with regard to settling a fishery at Dunglass. These two persons proceeded in this manner. They went to Sir John Hall as the proprietor, and they asked for his leave; that is important. They agreed to send Sir John the first fish they caught; they came and they sent Sir John the first and the last fish they caught, for they caught only one, and then they went back to the place where they came from, and there was an end of them. That was the only other occasion, and that was in 1846,-on which any person fished who was not a tenant of Sir John Hall's. Well that does not go very far, because it is not likely, if the fishing was so bad as it was represented to be, you would have anybody but the tenants on the estate to try it. The tenants on the estate are people living in cottages at £3 of rent, which was lowered to £2 because of their being so poor, and because of the kindness of the proprietor. They are just the kind of people who are likely to put their nets across the mouth of a burn, and to attempt to assist themselves by taking a fish in that way; but when you are told by the people themselves that they are in the practice of doing a thing of that kind, without a lease, and without direct authority as in the exercise of a right, that is hardly possession in the legal sense. The proprietor, in order to instruct his right, must have open possession and the assertion of a right. must either grant a lease as the proprietor of the right, or he must set up a fishery as occupant and user of the right himself. Or, to take the most favourable case that can be put for the pursuer of the issue, it is said that instead of a lease with a money rent he gives a lease, or something of the character of a lease, the return for which is that the fisherman shall give up the first fish he catches to the proprietor for nothing, and that that is equivalent to a rent for the value of the fishery at the moment, and that it is such a rent as to constitute an exercise of the right of salmon-fishing by the proprietor, the first fish being the remuneration. His Lordship then read the evidence of Robert Gordon and Mrs Rodger with regard to the first fish, and proceeded:-You will observe from this evidence that the practice was, not that one fish was brought by each fisher or each tenant, but that one fish only was brought out of the whole fishing. Now, if there was a lease-if the first fish was given by any man as tenant instead of rent, then every man who was a tenant there should have given his first fish. But one single fish for the whole is not in lieu of rent. It is absurd to speak of it in that way; and therefore you are obliged to take some other view. He Mr Gordon.-Your Lordship will allow me to say that you have omitted to refer to the evidence of Grieve (taken on commission) who speaks to that point. LORD ARDMILLAN read the evidence of Grieve as to the practice of giving the first fish, remarking that the jury would also take that into consideration, and * * Grieve deponed,- "In the years 1817 or 1818 I applied to Sir James Hall's factor, Mr Bell, for leave to fish for salmon and fish of the salmon kind opposite Sir |