Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SALMON-FISHING.

Duke of Queensberry
v.
Viscount of Stormont

Date: 4 August 1773

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[Faculty Collection, VI. 215; Dictionary, 14, 251.]

Alva. Nothing in the tenendas clause can enlarge the dispositive clause.

Monboddo. Even in charters from the Crown, were it not that the tenendas clause is not revised by the Barons, a grant of fishings in the tenendas clause would be good. It is always good in charters from a subject. If the Duke of Queensberry and his predecessors had continued in possession, there would have been more difficulty; but the direct contrary is the case. I think there is both a title and prescription.

Kaimes. A salmon-fishing is inter regalia, so that it passes by a particular symbol. There is no such thing here. If a man have a salmon-fishing from the Crown, may not that go as part and pertinent without any symbol? It occurred to me, that no exclusive grant was given, but only a permission to possess promiscuously. It is proved, however, that the possession was not promiscuous, but as large as a vassal could enjoy.

Justice-Clerk. The charter, 1649, not only grants the lands, but also the salmon-fishings, or what is equivalent to salmon-fishing. This conveys to my mind that the adjudger has taken the description from the title-deeds of his debtor, as mentioning a particular mode of fishing. There is some defect in the progress; but the charter 1687 is a voluntary charter: bearing a novodamus, it confirms all the charters of apprising. If the Duke's challenge had been recent, there might have been more difficulty; now there is a proof, on Lord Stormonth's part, of long possession, not for pleasure, but for profit: On the other side, a precarious possession, yielding no profit to the Duke of Queensberry. I do not find myself at liberty to play with the rights of parties, so as to take the subject from the Viscount and give it to the Duke of Queensberry.

Kennet. In order to acquire a right of prescription, there must be a title, and there must be possession. The defender has both. There is no doubt as to possession. The titles produced are not sufficient to give a right per se, but they are sufficient with possession. According to the present mode of revising charters in Exchequer, I would lay no weight upon the tenandas clause in a crown-charter, because that is filled up at the seal. The case is different as to a charter from a subject. There is no common right here; because the pursuer has had, properly speaking, no possession at all. The whole tenants of his estate fished tanquum quilibet without acknowledging him.

Auchinleck. The argument of the Duke of Queensberry proceeds upon a mistake in our feudal law: some decisions there are which seem to favour the error; a charter is but one deed, comprehending in it the dispositive clause, tenendas, and reddendo. Originally, the tenendas contained the most material circumstance of all, the substitution of heirs: so matters stood till the reign of James I. The Barons of Exchequer have got into the practice of neglecting to revise the tenendas clause. Their predecessors must have done otherwise, because the tenendas bore the right of the grantee. It would be strange to argue, from the carelessness of the Barons of Exchequer, that the doers for private people are equally careless.

On the 4th August 1773, “The Lords found that Lord Stormonth, by his titles, joined to possession, has right to the salmon-fishings; and therefore assoilyied.”

Act. G. Clerk, Ilay Campbell, R. M'Queen. Alt. A. Murray, H. Dundas, D. Græme.