GAMMELL v. COMMIS Crown's right to grant the fishings to the defenders, as that grant was the protection to their acts. If they had possessed no grant at all they would have been here wrongdoers, and by intercepting the SIONERS OF entrance of the salmon into the river Don, they would have been committing an injury to the fishings there without any justification, for which an action might have been raised against them. But in Straiton's case the Crown grant was brought directly into question, and I agree with the consulted Judges that this case appears to be perfectly conclusive upon the point of the Crown's right to grant fishings in the sea. The case is very clearly explained in their opinion, and they expressly say that the only ground of Straiton of Kirkside's right was a grant of fishing from the Crown in mari, which there was open sea, there being no estuary. The case was confessedly a difficult one. In the altered course of the river it became necessary to adjust the respective rights of Fullerton of Kinnaber, who was entitled to the river fishery, and Straiton of Kirkside, who was entitled to the sea fishery; but if Straiton of Kirkside's grant of fishing in the sea could not be sustained it was an easy way of solving the whole difficulty, as Fullerton would have been entitled to his river fishing whatever was the state of the tide, and Straiton would have had no right at all which required to be provided for. It seems to me, therefore, to be clear that the right of the Crown is established to the full extent claimed in the conclusion of the summons of declarator. It only remains to be considered whether this right belongs to the Crown merely as an attribute of its sovereignty, and as a trustee for the public, or whether it is to be regarded as a patrimonium, and therefore as a part of its hereditary revenues. I do not think that your Lordships will entertain much doubt upon this point. Erskine says: "No right in lands which is by our feudal customs appropriated to the Sovereign, and therefore goes by the name of regale, is presumed to be conveyed by the charter unless it be expressed." He then explains the regalia, which he divides into majora et minora, and then proceeds: "But the regalia now to be explained are truly parts or pertinents of land, and as such would naturally go to the vassal by his charter, if they had not been by our feudal customs appropriated to the Sovereign, and so understood to be excepted from the grant " (1). He then enumerates these regalia, and amongst them includes salmon-fishings, which he says is also a "jus regale," and therefore is not carried by a charter without an express clause. Now, as the Crown may either retain this subject itself or grant it to individuals, it cannot possibly be regarded as amongst the regalia (1) Institutes, book 2, title 6, sect. 13. WOODS AND [463] GAMMELL V. which are held for the benefit of the public. All the passages from the writers already quoted as to the effect of grants of SIONERS OF Salmon-fishing, or of grants cum piscationibus, support the right of COMMIS WOODS AND FORESTS. [ *464 ] [ *465] property in the Crown. If the right were common to all, it could not be appropriated, and if the Crown held it for the public, the public could not be excluded by a grant to any of them. But the statute of 7 & 8 Vict. c. 95, recognizes the legality of an individual right in a salmon-fishing in the sea by prohibiting any *person not having a legal right or permission from the proprietors of the salmon-fishings to take, amongst other places, from any shore of the sea, or in or upon any part of the sea within one mile of lowwater mark in Scotland, any salmon under a penalty. No person could have become the proprietor of a salmon-fishing in Scotland except by grant from the Crown, and therefore the Legislature has expressly recognized the validity of these grants. But as the Crown may grant these fishings for the benefit of individuals, so it may retain them in its own hands, and it seems difficult to understand how they should become property when granted away, but possess a totally different character while belonging to the Crown. It is clear, therefore, that the salmon-fishings in Scotland are the property of the Crown, and that the Commissioners of Woods and Forests are the proper parties to pursue on behalf of her Majesty. Upon the whole case, the claim of the Crown appears to be satisfactorily established, and I advise your Lordships to affirm the interlocutors, and I submit, my Lords, without costs. LORD CRANWORTH: My Lords, my noble and learned friend has gone so fully into this case that, concurring as I do with him in the result, I do not think it necessary, and I do not think it would be proper for me to trouble your Lordships with any detailed observations upon the case. I confess that, both upon the recent argument and upon that which took place some years ago, I have entertained some considerable doubt, arising from the indefinite nature of the claim, and the great difficulty, if not impossibility, of defining to what extent the claim would go with respect to sea-fishings. But upon the whole, considering *particularly the almost unanimous opinion of the COURT below, and finding that the doubts which I have entertained are not participated in by others of your Lordships who have heard this case, I dare say those doubts are unfounded; and I think an observation that was made is not unentitled to considerable weight, namely, that if this doubt were well founded, an exactly similar doubt might be raised as to the prerogative right of the Crown, in England at least, to the bed v. COMMIS WOODS AND of the sea, because that is undefined; yet nobody doubts that GAMMELL such a right exists. Then taking into account what has been pointed out by my noble and learned friend, that what is here SIONERS OF claimed is the fishings around the coast, and that it is matter of notoriety that the fishings require for some purpose the use of the coast, at least according to modern science, either by stake-nets or by drawing the nets to the shore, or by drying the nets upon the shore, or in some other way, I think it is very likely that that may be a sufficient answer to that doubt. At all events, I concur with my noble and learned friend in thinking that these interlocutors. ought to be affirmed. LORD WENSLEYDALE : My Lords, my noble and learned friend communicated to me the opinion that he was about to give to the House, and I entirely concur in every part of it, and I think it unnecessary to add anything to it, except that, perhaps, besides the limits he has stated of the fishing being connected with the coast, it may be worth while to observe that it would be hardly possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of nations belongs to the coast of the country, that which is under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession. It is very true that Lord Coke says, that the right to jetson and flotson, which is part of the prerogative of the Crown, extends over all the narrow seas. But I apprehend it is not necessary to go so far as that, but that it is sufficient to say that, subject to the qualification which my noble and learned friend has explained, it may be perfectly true that the right is possessed within the three miles of sea over which the jurisdiction both in Scotland and in England extends. LORD KINGSDOWN: My Lords, I have also had an opportunity of seeing the opinion which has been delivered by the LORD CHANCELLOR before it was pronounced, and I entirely concur in it. [ *466 ] Interlocutors affirmed. ANNE FENTON v. ALEXANDER LIVINGSTONE. (3 Macq. 497-562; S. C. 5 Jur. N. S. 1183; 7 W. R. 671.) [See the note of this case, 115 R. R. 1062.] DOLPHIN v. ROBINS AND ANOTHER. (3 Macq. 563-584; S. C. 7 H. L. C. 390; 29 L. J. P. 11; [Reported 115 R. R. 210, from 7 H. L. C. 390.] 1859. June 9, 10, 15, 16, 17. July 15. 1859. Feb. 24, 25. July 26, 27. Aug. 4. 1859. June 27. 1860. Jan. 31. Feb. 1, 10. 1860. April 30. May 4, 7. June 7. 1860. Feb. 16. 1860. Feb. 20, 21, 23. 1860. April 23, 24. KYLE AND MISS COOK v. JEFFREYS. (3 Macq. 611–618.) Copyright-Primâ facie title under 5 & 6 Vict. c. 45. If the primâ facie title be rebutted, the right may be supported without the production of a formal assignment attested by two witnesses. Per Lord WENSLEYDALE: I think that the opinion of the six Judges in the case of Jeffries v. Boosey was correct, that since the statute of 54 Geo. III., c. 156, there is no occasion to have an assignment in writing of a copyright executed in the presence of two witnesses; p. 617. Per Lord WENSLEY DALE: I think that the receipt in writing for the price of the copyright would operate as an effectual assignment; p. 617. [See now Copyright Act, 1911, s. 5, which specifically provides that assignments must be in writing, but witnesses do not appear to be necessary. A reference to the new Act should be noted on Jefferys v. Boosey, 94 R. R. 389.] COMMERCIAL BANK OF SCOTLAND v. RHIND. (3 Macq. 643-658.) Banker and customer-Weight attaching to the pass-book: Held, by the House of Lords (reversing the decision below), that in an action by the customer against his banker for an alleged balance appearing by the pass-book, evidence prout de jure, showing error or mistake, is admissible ope exceptionis as a defence. Per the LORD CHANCELLOR: The entries in the pass-book are only primâ facie evidence against the banker. 66 [The case is cited in the text-books on banking for one or other of the two propositions above given from the head-note. As the law is now quite settled that entries in a pass-book are admissions only, and, as in the case of receipts for the payment of money, they do not debar the party sought to be bound by them from showing the real nature of the transactions which they are intended to record" (Gaden v. Newfoundland Savings Bank [1899] A. C. 281, 286), it is thought needless to reprint the case at large, which is versed to a great extent in questions and terms of Scots procedure.] LORD SALTOUN v. ADVOCATE - GENERAL FOR (3 Macq. 659-689; S. C. 6 Jur. N. S. 713; 8 W. R. 565.) WRYGHTE v. LINDSAY. (3 Macq. 772-782; S. C. 6 Jur. N. S. 435; 8 W. R. 368; 2 L. T. [Reported 119 R. R. 1032, from 6 Jur. N. S. 435.] PATRICK DAVIDSON v. GEORGE TULLOCH. [Reported 119 R. R. 1044, from 6 Jur. N. S. 543.] ORR ET AL. v. GLASGOW, AIRDRIE, AND MONKLANDS (3 Macq. 799-807; S. C. 6 Jur. N. S. 877; 8 W. R. 643; 2 L. T. N. S. 550.) [Reported 119 R. R. 1078, from 6 Jur. N. S. 877.] ་ CALEDONIAN RAILWAY COMPANY v. LOCKHART. (3 Macq. 808-826; S. C. 6 Jur. N. S. 1311; 8 W. R. 373; 3 L. T. N. S. 65.) [Reported 119 R. R. 1101, from 6 Jur. N. S. 1311.] CAIRNCROSS ET AL. v. LORIMER ET AL. (3 Macq. 827-832; S. C. 7 Jur. N. S. 149.) [Reported 123 R. R. 906, from 7 Jur. N. S. 149.] CALEDONIAN RAILWAY COMPANY v. COLT. (3 Macq. 833-851; S. C. 7 Jur. N. S. 475.) [Reported 123 R. R. 910, from 7 Jur. N. S. 475.] MAXWELL v. McCLURE. (3 Macq. 852-853; S. C. 6 Jur. N. S. 407; 8 W. R. 370; 2 L. T. N. S. 65.) [Reported 119 R. R. 1024, from 6 Jur. N. S. 407.] JOHN ROBERTSON AIKMAN v. GEORGE ROBERT- (3 Macq. 854-883; S. C. 7 Jur. N. S. 1017; 4 L. T. N. S. 374.) [Reported 123 R. R. 957, from 7 Jur. N. S. 1017.] BRITISH LINEN COMPANY v. INSURANCE COMPANY. CALEDONIAN (4 Macq. 107–116; S. C. 7 Jur. N. S. 587; 9 W. R. 581; 4 L. T. N. S. 162.) [Reported 123 R. R. 929, from 7 Jur. N. S. 587.] EWART ET AL. v. COCHRANE ET AL. (4 Macq. 117-125; S. C. 7 Jur. N. S. 925; 10 W. R. 3; 5 L. T. N. S. 1.) [Reported 123 R. R. 938, from 7 Jur. N. S. 925.] BAIRD v. FORTUNE. (4 Macq. 127-158; S. C. 7 Jur. N. S. 926; 10 W. R. 2; 5 L. T. N. S. 2.) [Reported 123 R. R. 942, from 7 Jur. N. S. 926.] ROBERTSON v. FLEMING ET AL. (4 Macq. 167-214.) Solicitor and client-Liability to third parties. Per the LORD CHANCELLOR: I never had any doubt of the unsoundness of the doctrine that A. employing B., a professional lawyer, to do any act for the benefit of C., A. having to pay B., and there being no intercourse of any sort between B. and C.,if through the gross negligence for ignorance of B. in transacting the business, C. loses the benefit intended for him by A., C. may maintain an action against B., and recover damages for the loss sustained. If this were law a disappointed legatee might sue the solicitor employed by a testator to make a will in favour of a stranger, whom the solicitor never saw or before heard of, R.R.- -VOL. CXLIX 21 1860. March 7, 8, 23. 1860. July 17. Aug. 9. 1860. June 19, 21. Aug. 3. 1860. March 6, 7. 1860. July 23, 26, 31. Aug. 3. 1861. March 12. 1861. March 18. 1861. March 22. 1861. March 14, 15. April 25. 1861. March 11, 12, 14. May 30. |