A summons of removing from fishings must be executed 40 days before Whitsunday, though the term of entry is the 30th of November.
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The season of fishing salmon commences at Andersmas, or the 30th of November yearly, which is therefore the usual term of entry to possessions of this kind.
Mr Gordon, proprietor of certain fishings in the river Dee, executed a summons of removing against Burnet his tenant more than 40 days preceding this term.
Pleaded in defence; The same inducia are requisite in a summons of removing on the act of sederunt 1756, as in a precept of warning upon the statute 1555. And as this statute specially comprehends fishings, the execution in this instance ought to have taken, place 40 days before the Whitsunday preceding the ish.
Answered; The objects of the enactment, 1555 were labourers of the ground, and the purpose of it, that these might have a reasonable time to provide themselves in other farms, which were then uniformly let at Whitsunday each year. Hence, although the statute comprehends not only lands and fishings, but also all possessions whatsoever, it has in practice been limited to rural tenements alone; and, in collieries, salt-pans, houses possessed by artificers, or within burgh, and in mansion-houses and fortalices in the country when not connected with a farm, all that is necessary; is an intimation given a reasonable time before the term at which these tenements are usually let; Stair, B. 2. Tit. 9. § 34; 18th December 1630, Ramsay contra Lord Conheath, No 64. p. 13826.; 19th November 1758, Lundin contra Hamilton, No 86. p. 13845, 11th March 1756, Duke of Queensberry contra Telfer No 85. p. 13843.; 15th December 1767, Wauchope of Niddery contra Hope, No 83. p. 13847.
The mention of fishings, therefore, among the subjects where warning is required, must have occurred per incuriam, or must be restricted to those which are let together With a rural tenement. Accordingly Lord Bankton, Book 2. Tit. 9. § 53. in express words excepts fishings from this act.
The Lord Ordinary sustained the defences; and the pursuer having reclaimed to the Court, the Lords refused the petition without answers.
Lord Ordinary, Justice Clerk.Act. George Fergusson.
Fol. Dic. v. 4. p. 223. Fac. Col. No 96. p. 150.
