of the minerals, the lease endured until the specified break in favour of the tenant.

This Special Case was presented by the Hon. Cornwallis Fleeming, of Biggar and Cumbernauld, on the one part, and Messrs Baird & Co., of Gartsherrie ironworks, on the other. The following were the circumstances out of which the case

arose:

"On 26th January 1859 conditions of lease were entered into between George Dunlop, as commissioner for John Fleeming, Esq., of Biggar and Cumbernauld, afterwards fourteenth Lord Elphinstone, and William Baird, James Baird, and George Baird, in trust for William Baird & Co., of the ironstone and iron ore of every description in certain portions of the Cumbernauld estate, known by the general name of Duntiblae. The lease, if ironstone was found, was to endure for thirty years from Whitsunday 1859, with breaks in favour of the tenants at the expiry of every five years, reckoning from the first term of Whitsunday after a proper winning of the ironstone should have been made, and they had fairly tried to work the ironstone. By the conditions of lease the tenants were, inter alia, bound, at their sole expense, to search, by boring or otherwise, for workable ironstone, in which they should expend not less than £300; and the result, whether workable ironstone was thereby proved, should be decided by the tenants at the end of two years from Whitsunday 1859, and royalties were to be paid on any ironstone that might have been found and worked during said trial period, but no fixed rent. If the trials turned out satisfactory, the tenants were bound immediately to proceed to win the ironstone in manner pointed out in the conditions of lease; and for the three years ending respectively Whitsunday 1862, Whitsunday 1863, and Whitsunday 1864, to pay a yearly fixed rent of £250, and thereafter a yearly fixed rent of £500, beginning the first payment at Martinmas 1861 for the half-year preceding; or, in the proprietor's option, the lordships therein mentioned. John fourteenth Lord Elphinstone died on 13th January 1861. Upon 26th March 1861 the rents, issues, and profits of the lands and estates of Wigtoun, Biggar, and Cumbernauld, situated in the counties of Lanark, Dumbarton, &c., falling due from and after the 13th day of January 1861, being the date of the death of John fourteenth Lord Elphinstone, were sequestrated by this Court, and William Moncreiff, Esq., accountant in Edinburgh, was appointed judicial factor thereon; and he immediately thereafter entered upon the duties of his office. On 8th May 1861 the tenants wrote to Mr Moncreiff, C.A., who had been appointed judicial factor on the estates of the late Lord Elphinstone, that they had bored the field very extensively, but without any satisfactory result; that they had found no workable ironstone, and that the bores had proved the position of the ironstone to be much deeper than expected and overlaid by whinstone of great thickness, so that it was greatly more expensive to prove and win; and that one very deep bore, then in progress, would not be got finished before Whitsunday 1861, the expiry of the trial period. And they stated that they were willing, provided the terms of the lease were a little altered, to complete this bore, and to explore the field still further; and with that view they proposed-(1) That the trial period should be extended for two years, the fixed rents remaining the same in respective amountsthat is, that there should be three years at £250

from entering upon the lease, but postponed as above proposed; and (2) That the lordship on calcined blackband ironstone should be reduced from two shillings to one shilling and sixpence. A report on the trials made by the tenants was, at the request of Mr Moncreiff, made by Mr John Geddes, mining engineer, Edinburgh, who recommended the terms proposed by the tenants to be accepted. Thereafter Mr Moncreiff applied to the Court for, and obtained special powers to enter into a lease, containing modifications on said conditions, in the terms of a draft lease, which had been prepared by him and approved of by Mr Geddes, and had also been revised and approved of on the part of the said trustees of William Baird & Co., and was produced with his application.

"A formal tack, in the terms of the draft so adjusted, was afterwards executed between Mr Moncrieff, as judicial factor, on the one part, and the Messrs Baird on the other, of all and whole the ironstone of every kind, and all ores of ironstone of every description, under and within all and whole the lands, portions of Cumbernauld estate, of which the property or dominium utile belonged to the said deceased Lord Elphinstone. The sequestration and judicial factory were recalled over certain portions of the Cumbernauld estate in March 1869, and Mr Cornwallis Fleeming has completed his title thereto, and is now in right and possession thereof, with right to the minerals in question, and to enforce the conditions and stipulations of the said lease. In the course of their possession during the four years allowed for trial, and under the lease, the tenants made eight bores into the mineral field. They afterwards sunk two deep pits, and from the former of these pits, in terms of a clause in the lease allowing this to be done, they extended their workings into the mineral field forming the subject of the lease, and wrought a portion of the iron ores in the lands of Duntiblae comprehended in the lease. These workings continued until the middle of April 1869. On the 16th of that month the tenants intimated to the landlord that he was at liberty to enter on possession of the whole subjects, and that they were prepared to execute a renunciation in any form he might wish. On the 14th May 1869 the tenants intimated that they had removed from possession of the mineral field. The tenants have expended large sums in the sinking of the bores, and in working the pits above mentioned. The ironstone which they have obtained in the lands comprehended in the lease has been of comparatively trifling amount. The ironstone has not yielded, and it does not appear that, if further wrought, it would yield sufficient to pay the expenses of working. Mr Fleeming and his administrator-at-law are satisfied that the borings and workings have sufficiently ascertained the character of the ironstone, and they do not desire any further borings or workings to be made.

"The tenants, without waiting to take advantage of the break in their favour at Whitsunday 1837, having refused to pay the fixed rent due by the lease at Martinmas 1869, or any subsequent rent, the following questions were laid before the Court:"Whether the tenants are bound to make payment

of the fixed rents falling due under said tack, as at Martinmas 1869 and subsequent terms?

or, "Whether the tenants were or are entitled to refuse payment of rent from and after the term of Whitsunday 1869?"

PATTISON and ASHER quoted Gowans v. Christie, 8th Feb. 1871, Scot. Law Rep. viii, 371.

SOLICITOR-GENERAL (CLARK) and WATSON, for the second parties, relied on Ersk. 2, 6, 41; Wilson, M. 10,125; Shaw, 7 Shaw, 404.

At advising

LORD JUSTICE-CLERK-The claim which is made by the Messrs Baird, the tenants under the lease founded on in this case, is that they shall be liberated from all future rents, and that in respect of the sterility of the subject let. It is maintained for the landlord that that doctrine of sterility does not apply to a mineral lease, but that, at all events, under the authority of the case of Gowans v. Christie, decided very recently in the First Division, the stipulations of this particular lease exclude any claim of that kind. We had the case very ably argued to us, and I must fairly own that I was greatly impressed with the argument on the part of the tenant. But I have come to a very clear opinion that the case of Gowans v. Christie must rule the present case, and consequently, that judgment must go for the landlord. On the general question as was expressed by the Judges in the case of Gowans v. Christie, I think there is great difficulty in principle in applying strictly the rules of an ordinary agricultural lease to a contract of this kind, because, excepting in an imperfect and inaccurate sense, a mineral lease is not a contract of location. In so far as relates to the minerals taken, it is truly more of the nature of a contract of sale, for the property passes, and as regards the minerals not taken, even the use of them is not transferred or enjoyed. The subject of the contract has no fruits, and any benefit which the tenant takes, if tenant he is to be called, is a benefit derived from the property, and not from the use of the minerals which he takes. In that view the doctrine of sterility is inapplicable, for sterility imports a failure to yield or produce expected fruits, that failure being caused by unanticipated causes. But a contract which does not relate to fruits, but to stock or to substance, can plainly not be affected, at least except by analogy, by a principle of that kind; and the true nature of a mineral lease seems to me rather to be a grant of a temporary privilege,-a privilege, during a period, of removing and appropriating so much of the substance of the minerals within a certain area as the grantee may be able or may choose to excavate, and that for a consideration or price calculated according either to the duration of the privilege or the amount appropriated. That seems to be a definition of the right transferred by what is called a mineral lease, and in this view the subject of the lease is not the minerals which are taken which are truly sold, nor the unworked mineral field, but the incorporeal privilege; and in that view, no doubt, it may be said that the fruit or profits of the privilege fails when the minerals are exhausted; but it is manifest that it is only the application of similar or analogous principles of equity to such a contract which can take place in the view that has been suggested. But then, even in that view, it is not sterility in the proper sense which is pleaded here; for the substance which was to be the source of the profit of the tenant remains exactly the same as it was when the lease was entered into. The case of Duff v. Fleming was quoted as being a case where the tenant got relief because the subject had perished. But the subject here is exactly what it was. It has not perished. Doubtless if

the mine had been flooded or had been swallowed up by an earthquake-res perit domino, and the subject of the contract is gone. But in this case it is not that the subject of the contract is gone, for nothing has been changed in that respect. It is that the expected profit has not been yielded. I think these views are material when we come to consider the nature of the contract which we have before us, in which the parties most carefully provide for every contingency that they thought it necessary to provide for. And this is even a stronger case than the case of Gowans in that respect. In the first place, it is a most elaborate and well considered document between persons very well able to look after their own interests, and very well understanding what it was. They first take four years of trial before the lease is entered into, under conditions, and then at the end of four years of trial they entered into the regular lease in 1863, and they provide that for the first five years there shall be only half rent paid, viz., £250, and then after that that the rent shall be raised to £500; but with this provision, that at every period of five years from 1863 the tenant shall be at liberty to stop the currency of this lease. Now, certainly it is very difficult to say, as the Solicitor-General argued with great ability, that with all these provisions, and with a lease which has lasted from 1859 till now, there never was anything to be the subject of a contract at all. I think it is impossible to hold this. The cases that were quoted were truly cases of that nature where there was no coal to work, and where the whole field had failed. But in this case, although there may never have been profitable working, there has at least been enough of substance in the contract itself to induce the tenants to go on for ten years. Now, the conclusion that I have arrived at is the same as that which the Lord Justice-General arrived at in the case of Gowans. I think that these breaks at the distance of five years which were given to the tenant, without assigning any reason, were intended to cover all the risk which he undertook. I cannot read the contract in any other sense, and I think there is a general principle that when parties reduce their obligations to writing in the careful manner which has been followed here, you are not to import common law principles, except in very clear and very specific cases. In this case the common law principle may be doubtful enough, but I am satisfied that whatever it was, it was excluded and provided against by the provision in regard to breaks. And therefore, on the whole matter, I think judgment must be for the landlord.

LORD COWAN This is a very interesting case in one aspect of it, but I take the same view of the principle on which the question must be decided that your Lordship has explained. I think it is pre-eminently a case of contract, and that it must be ruled by what we shall hold to have been the intention of the parties in reference to this matter. Now the remarkable thing in this case, which seems to me to make it a stronger case than that of Gowans, is this, that by the conditions of the lease, which it is impossible to leave out of view, looking at the case as one of contract, we have it expressly stipulated that trials shall be made by the tenants; and then it is said, "and the result whether workable ironstone be thereby proved shall be decided by the tenants at the end of two years." And that was extended to four

years, "from Whitsunday 1859." And after having made up their minds, on a trial of four years, as to whether there was workable ironstone or not, the lease was to be entered into; and, accordingly, at the close of that time this lease was expressly entered into; and we must hold that the tenants had found from their experience of working that there was workable ironstone which made it safe for them to enter into the contract. Then, when we come to the lease, there is no clause whatever providing against the possible nonworkability of the ironstone, and I am not surprised at that, considering the careful way in which the parties had arranged this pre-eminently risky contract before they entered into it. There is no such clause, but there is a clause providing for the safety of the tenants in the event of their finding it an unprofitable speculation or bargain into which they had entered, viz., the clause by which at the end of every five years they were to be entitled to abandon the lease. I think the parties, therefore, ex contractu, have fixed their own relative legal position, and that we must come to the determination which your Lordship has announced. We have nothing to do here with a question of sterility. But viewing the question simply as a question whether there was workable ironstone, that is the only case presented to us for judgment, and to that case it seems to me that the parties applied their minds when they entered into this contract. I do not say that absolute sterility from the very outset, even in a mineral lease, may not be a good defence, but we are not called to determine that in this case. At the same time, I may make this observation, with great deference to the Solicitor-General, acute and interesting as his argument was, that I cannot agree with him. His argument was that there was never any subject of contract, and consequently that there was never any contract; and we had Pothier quoted to tell us what we know in our own authorities as well, that there must be a subject in order that there may be a lease, and that one of the indispensable conditions of a contract is a subject. That is quite true, but how can we say that there was here no subject, when the parties covenanted in the way I have mentioned, the simple question being whether the ironstone was workable. There is ironstone there, and there may be future inventions and modes of working this mine which may make it a productive mine, or there may be such an enormous rise in the price of ironstone as to make it even in its present state not an unprofitable thing for the tenants to work. But I cannot entertain the view that there is here no subject.

LORD BENHOLME-My opinion is the same as that which has been expressed by your Lordship and by Lord Cowan. I cannot adopt the SolicitorGeneral's argument that there never was a subject here at all. If that had been the case we would have been in a totally different category. But it is in vain to say that there was no subject. There is ironstone to be found here, and that was ascertained. It is one thing to say that there is no subject, and it is a totally different thing to say that by the common law a certain amount of sterility or non-workability will enable a party to get rid of the contract. As to the amount of sterility which will entitle the party to relief at common law, I don't think we are bound to consider that. Even supposing that the common law did give relief whenever the subject would not

VOL. VIII.

pay expenses, still the question occurs here which was settled in the case of Gowans-where the parties have dealt with and apparently provided for the risks that are always involved in such a lease as this, can they invoke the common law in addition to those remedies which they have contracted for? Upon that question I think the case of Gowans is a binding authority; and even if the point was not settled by that precedent, I should be inclined to concur in the very able judgment of the head of the Court in that case.

LORD NEAVES-There is no doubt that the questions argued here have been of very considerable interest, and of some delicacy, but I have arrived at the same opinion as your Lordships. I rather understood the Solicitor-General's argument, as to sterility, to be-that there was no contract from whatever point the sterility or non-workability developed itself; but the whole of this matter about sterility is one which is attended with very considerable difficulty. The true category is, that the contract either cannot exist because there is no subject, or that the lease which is well entered into when there is a subject, is brought to an end rei interitu. The question of sterility even in agricultural leases is by no means free from difficulty. When a subject becomes flooded or sanded over, and is thereby made quite different from what it formerly was, a great deal might be said, but I have some doubts in my own mind whether in agricultural leases the repeal of the corn laws would have entitled a tenant to abandon his lease on that ground. I have also considerable doubt whether every year is to be taken by itself in a continuing lease. Supposing an Egyptian in the time of Joseph had had a fourteen years' lease of land, and had got his first seven years of plenty with his barns crowded, and the years of scarcity had followed, I think it would be very hard on the landlord that the tenant should get his full measure of the harvest during the first seven years, and then pay no rent at all for the next seven. But we are quite out of that consideration here, because this is not a case of fruits. It is a case of the gradual appropriation of the subject to which the contract relates. If it were proved that there was now no subject, and that there never had been any; if it were ascertained that not a particle of ironstone is left in the subject, or that it had become inundated by the sea, so as to be inaccessible,-I do not say what would happen then, because that would be rei interitus. But when it just comes to this, that the profit sinks a little below zero, and that for that reason the contract is to be thrown up, I think that is quite inappropriate to a subject of this kind. A fall in the price of ironstone might produce that derangement, which must be one of the risks that the parties run. Upon these grounds, I think we must come to this result, that the case of Gowans is undistinguishable from the present. The law there laid down seems to be this,-that after full opportunity to consider and calculate all the chances, unless some absolute destruction of the thing occurs, it is in vain to ask any remedy except that which has been provided for here by a five years' break. It is in vain for the party to attempt to get rid of the lease on the ground that the prices have fallen or that wages have risen, and that he must get rid of what he formerly worked with profit to himself because the expense of working is now a little greater than the profit.

Agents for Pursuer-T. & R. B. Ranken, W.S.
Agent for Defender-James Webster, S.S.C.

NO. XXIX.

(Before Lord Jerviswoode.) RANKING AND SALE OF ECCLES. Prescription-Interlocutor-Ranking and Sale. Held that an interlocutor, pronounced in 1825 in an action of ranking and sale, ordering a claim to be lodged, had not prescribed in 1871.

In this case, which has been depending in Court since 1818, a singular and important point of practice arose. In 1822 an interlocutor was pronounced by Lord Alloway, granting decree of certification contra non producta. In 1825 Captain Barton presented a reclaiming note to the First Division, setting forth that he was a creditor of the common debtor to the extent of £500, contained in a bill, and craving to be reponed against said decree of certification. Their Lordships of the First Division reponed the claimant, and remitted the case to the Lord Ordinary to receive his claim and grounds of debt. Thereafter an inventory of interest was duly lodged by the Clerk of the Inner House, but in consequence of some oversight it was not transmitted to the Clerk of the Outer House process. No farther proceedings took place in the process until 1864. The original claimant died, and in 1871 his brother lodged a minute, craving to be sisted as a party in room of his deceased brother, and to be allowed to lodge in process the inventory of interest, in terms of the Inner House interlocutor of 1825. The common agent in the Ranking, Mr Martin, W.S., objected to the claim being received, on the ground that more than forty years had elapsed since the interlocutor of the Inner House, and that it and the claim then made were both prescribed, and that the claim could not now be received into process without the authority of the Court. It was, on the other hand, maintained that the action must be held to have originally depended before the Court, and that the interlocutor of the Inner House being an interlocutor in the cause, prescription could not apply. The Lord Ordinary repelled the plea of prescription, and admitted the claim.

Agent for the Common Agent-Mr Martin, W.S. Agent for the Claimant-Mr Kennedy, W.S.

HOUSE OF LORDS.

Tuesday, February 28.

JOHN COPLAND V. HON. M. C. MAXWELL. (Ante, vol. vi, p. 122.)

Landlord and Tenant-Agricultural Lease-Trout Fishing. Held (affirming judgment of Second Division of Court of Session) that a right of trout fishing in a private stream is an incident of the proprietor's right, and that it is not communicated to the tenant under an agricultural lease, unless that is done expressly. This was an appeal from a decision of the Second Division of the Court of Session as to the right of farmers to fish for trout in streams passing through their farms. The respondent, Mr Maxwell, is proprietor of the estate of Terregles in Kirkcudbright

shire, and in 1863 he let a farm on that estate, called Mainshead or Prospect Hall, to the appellant for nineteen years. On the edge of the farm there is an artificial pond lying between the farm and other lands of the respondent. The pond had been made in 1849 to supply a tile-work, which had since been discontinued; and the respondent had stocked it with fish, chiefly trout, but there were also some parr and salmon. The pond is a mile from Mr Maxwell's residence. In the record the respondent set forth that he and his family had been in the habit of fishing in this pond, and that when he let the farm to the appellant for agricul tural purposes only, he did not intend to include the use of the fishing of the pond to the tenant. But recently the tenant had begun to fish in the pond, and asserted bis right to do so, and attempted to exclude the respondent and his friends from the fishing. On the other hand, the tenant, in his part of the record, stated that he had retired from business, and when he offered to take the said farm a plan of the lands then shown to him showed that the pond was part of the farm, that the lease contained certain exceptions and reservations, but did not reserve the pond or the fishings therein to the landlord; that he had, since he became tenant, constantly washed his sheep in the pond, and fished for the brown trout that frequented the pond; and the previous tenants had done so also. When he took the farm he had in view an agreeable residence, as well as an agricultural use of the lands; that the landlord cannot get to the pond without trespassing on the tenant's land; and therefore that the right of fishing belonged to the tenant. The proceedings commenced in the Sheriff Court with a petition of the respondent to interdict the tenant from fishing in the pond. The SheriffSubstitute granted interim interdict. The Sheriff, however, on appeal, altered this order, and granted a proof of the averments. Another petition having been presented, there was an advocation. Lord Barcaple, after proof, pronounced judgment in favour of the tenant, holding that, as the lease did not specially except the fishing, the tenant had at common law the right to fish for trout with the rod in the pond. On appeal, the Second Division, consisting of Lord Justice-Clerk Patton, Lords Cowan and Neaves, reversed the interlocutor, holding that where such a lease is silent the right of catching trout in the streams belongs to the landlord, and not to the tenant. The tenant now appealed against the judgment.

The Lord Advocate (YOUNG), for the appellant, said that the pond in question was only half-anacre in extent. The evidence showed that the tenant had fished in this pond since his lease was granted, and he did not even profess to prevent the landlord from fishing if he did so without getting over and injuring the fences. There was no direct authority in the law of Scotland on the subject. It is true the law of Scotland gave the game to the landlord where the lease is silent; but that arose out of an old Scotch Statute forbidding all persons to take game who had not a ploughgate of land. But there was no such exception as to fishing or catching birds, or digging for worms, or tak ing any other benefit out of the land. The Lord Ordinary said the common law was in favour of the tenant, while the Inner House said it was in fav our of the landlord. But nothing definite was known or decided one way or the other, and the most consistent doctrine was to assume that the tenant had the full use of the land for all lawful

purposes, except the landlord had specially reserved certain matters.

Mr MANISTY, Q.C. (with him Mr BRAND), also for the appellant, contended that it must be taken that the pond was part of the farm. It was only 300 yards from the house, and was used for the ducks and geese of the tenant, as well as for his cattle; and as catching trout was only one of the uses of the water, that right must have passed to the tenant along with the occupation of the land. The only exception in Scotland from a lease was that of game; but where wild animals were not included in the definition of game, such as rabbits and wild fowl, those belonged to the tenant. This showed that the general rule of law was that the tenant was presumed to have theso uses of the land and water embraced within his lease.

SIR R. PALMER, Q.C., and Mr J. F. ANDERSON, for the respondent, were not called upon.

At advising

LORD CHANCELLOR-My Lords, in this case the appellant complains of two interlocutors, one by the Sheriff-Substitute and the other by the Court of Session, interdicting the appellant from fishing in a certain pool or stream, whichever it may be called, which adjoins the property occupied by him under a lease or tack for agricultural purposes. The pond or pool is of this description-it is fed by small streams, those streams are said, in the evidence, to be occasionally absolutely dry in summer. It was originally a swampy place; there is some tradition, but there is no distinct evidence upon that subject, of its having been formerly a loch; but it was a species of swamp, and not of any great use to the person occupying the adjacent farm for agricultural purposes. It was let originally to Mr Herbertson, who is still alive, and who is a witness in the cause; and when it was so let to him originally it appears, as far as we can see, to have comprised the pond in question. That is a matter of some dispute: but at all events subsequent transactions make that dispute of very little importance.

In 1849, while it was thus occupied by Herbertson, the proprietor, the present respondent was minded to make use of this pool for the purpose of supplying certain tile-works which he had in another form, which marched on one side of the pond, as the farm now occupied by the appellant marched on the other side of the pond. He accordingly applied it to this use, and made certain arrangements for that purpose, putting down a certain hatch, or something of that sort, through which the pond was to be fed, and a certain dam was constructed. It afterwards occurred to him, before the year 1853, in the year 1852, that he would like to make use of this pool (which had been thus formed by means of the damming and the other operations which he had carried on in order to use it for the tile-work) as a receptacle for trout, and he accordingly put a grating at the issue of the pool, which pool would naturally otherwise issue into the unrestricted stream, finding its way thereby into the river Nith-he put a grating across that part of it which would prevent the fish passing down the stream, and he then took a number of fish, which he had collected for the purpose, and placed them in this pool. The fish, therefore, were so placed that in summer time they would have no exit whatever, inasmuch as there would be the grating to prevent their descending to the Nith, and the streams above which fed the

pool would be dry. At other times when the streams were not so dry they might have the means of finding their way upwards, but down the stream they could not pass. He further, somewhere about the end of the year 1852, in order to secure this as a place for fishing, placed stakes at the bottom of the pool in order to prevent any fishing by means

of a net.

In this state of things, a new tack was had of the farm, as an agricultural farm, by Mr Herbertson, the original tenant, and with him was associated his nephew Mr Richardson, who also gives evidence; and Herbertson's statement of the whole matter is this. He says, " When this operation took place for the tile-work I made no objection, and whether the pool was to be taken as included in my tack or not, I certainly did not in the slighest degree intimate any dissent from the pool being dealt with in the way described-namely, being converted into that which would be useful for the tile-work, and afterwards being converted into that which would be pleasurable to the landlord, as a place in which the landlord might fish." And he says distinctly that from that time-that is to say, from the time when the pool was so appropriated he did not consider that property as that which was subject to his tack, and further that he never had any desire from that time forth, nor, as he thought, had he any right, to interfere with the use to which he had allowed the pool to be appropriated—namely, to the use of a factory on the one hand, and to the use of a fish pond on the other.

Now, in that 'state of things, Herbertson and his nephew held the property for ten years, which I think was the length of the tack; and undoubtedly after he had permitted that to be done which was done, I apprehend that no law of any country would permit him to interfere with the uses to which he had allowed the pool to be appropriated. His impression was-I thought it was better occupied. Whether he meant in the strict technical sense of being occupied as a tenant occupies land I know not, but he said "I thought it was better occupied than when it was simply a morass, which was of no use to me, and therefore from that time I conceived that I had done with the pool."

The nephew does not give evidence of exactly the same character. He is called by the appellant, and the nephew, in his examination in chief, says "I fished in the pond several times." That "several times" turns out in cross-examination to have been three times in ten years. And on one single occasion only did any body else fish with him, a man of the name of Alexander, a joiner, who fished with him for about half-an-hour. That is the extent to which either the uncle or the nephew appear to have exercised any right or control over the pool in any shape or way except that both the uncle and the nephew seem to have made use of the pool for washing their carts, and I think for watering their cattle.

That being so, in 1862 the tile-work was given up altogether, and about the same time the place was re-stocked with fish, and was re-staked. So that the landlord clearly intimated his intention to exercise, and did exercise, those rights which he appears to have resumed over this property. When this was done the property was let to the present appellant, Mr Copland, in 1863. He was to take it (I think the expression is) "as presently possessed by the existing tenant." That is the phraseology