The Procurator-Fiscal of the Town of Stirling, v. John Gillies and Others
Date: 20 November 1793 Case No. No. 31.
The act 1581, c. 111. is not now in force.
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By the act 1581, c. 111. which proceeds upon the narrative, that the former statutes relating to offences against the salmon fishing had not been carried into execution, the persons therein mentioned are appointed his “Hienes justices,” for the purpose of “taking up dittay,” and trying by jury offenders against these acts.
The statute then enumerates various rivers. With regard to some of them, this jurisdiction is given to private individuals; and with regard to others, to persons in public office, such as sheriffs and stewarts, or the magistrates of royal boroughs. In particular, it is given to the stewart of Monteith, and his deputies, for the heads of the rivers of Teith and Forth, and to the sheriff of Stirling, and the provost and dailies of Stirling, “for the remanent of the waters of Forth, Teith, Gudie, Carron, Allane, and Dovano, and their graines;” and to the sheriff of Linlithgow and his deputies, and the provost and bailies of that burgh, “for the waters of Avon and south side of Forth, within the bounds of that sheriffdom.”
In 1789, the procurator-fiscal of the town of Stirling presented a petition and complaint to the magistrates, against John Gillies and others, fishermen at the villages of Kincardine and Longannet, situated in the county of Perth, and on the side of the Forth, on account of certain trespasses against the acts relating to salmon fishing, alleged to have been committed by them on the coast adjoining to the places of their residence. The defenders declined the jurisdiction of the magistrates of Stirling, who overruled their plea. Of this judgment they complained by bill of advocation, which having been passed, besides disputing how far the jurisdiction of the magistrates of Stirling ever extended to the places of their residence, they
Pleaded: The act 1581, which appears to have been very disagreeable to the great families possessed of heritable jurisdictions, (1594, c. 224.; 1597, c. 265.) has been long in disuetude. Few instances have been pointed out, where processes have been carried on before the magistrates of Stirling for such trespasses. The earliest of them is in 1748, and they are of no weight in point of precedent, because the mode of trial by jury, as directed by the act, was not then followed. Indeed, the statute in question, as being a commission of Justiciary, was virtually abrogated by the act 1592, c. 128. annulling all such commissions; and also by the acts 1600, c. 11. and 1606, c. 5. by which offences against the salmon fishing are declared punishable as theft, and consequently fell to be tried before the ordinary judges: And, at all events, the act was taken away by 20 Geo. II. c. 43. abolishing heritable jurisdictions.
Answered: The act in question has been confirmed by subsequent statutes, 1696, c. 33.; 1705, c. 2.: the jurisdiction conveyed by it has often been exercised by the magistrates of Stirling, and was not abolished by 20 Geo. II. as it reserves entire the privileges of royal boroughs.
The Lord Ordinary reported the cause on informations.
Observed on the bench: All extraordinary jurisdictions, such as those created by the act in question, are now at an end. The enactments of the statute are altogether unnecessary in the present state of the country. Indeed, as the powers conveyed by it are in general bestowed upon individuals, without mentioning their heirs, it must have been intended merely as a temporary regulation. It is in respect similar to the branch of the act 1685, c. 20. appointing masters of the game.
The Lords unanimously assoilzied the defenders.
Lord Reporter, Dreghorn.Act. Moir.Alt. Dean of Faculty.Clerk, Gordon.
Fol. Dic. v. 4. p. 261. Fac. Coll. No. 73. p. 159.
