Scottish Court of Session Decisions

In this action the Lord Advocate, on behalf of the Crown, asked for declarator that the whole salmon-fishings in the rivers Affaric and Cannich and their tributaries, and in the river Glass (in which these waters combined), sometimes called the Beauly, down to the falls of Kilmorack, belonged

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to the Crown. The action was directed against Lord Lovat, The Chisholm, Mr Oswald of Aigas, and Sir Dudley Coutts Marjoribanks, of whom Lord Lovat alone entered appearance as a defender. He maintained that he had right to the salmon-fishings in question either (1) by express grant by the Crown, or (2) in virtue of his titles followed by possession. He, however, made no serious claim to the fishing in the rivers Affaric and Cannich, and it was in regard to what was called the Glass that the true litigation arose.

The course of the river was, as described in the Lord Ordinary's note, as follows:—“It rises in the western part of Inverness-shire, and by the time it reaches Guisachan it is a considerable stream, called the” Diag, “or” Guisachan. “A little above Fasnakyle the Diag is joined by the” Affaric River,” and the united stream is thereafter known as the “Glass.” A few miles further down it receives the “Cannich,” or “Cannay,” and after a course of several miles it receives the “Farrar,” which, after flowing through Glenshathfarrar and past Struy, joins the main river near Erchless Castle. The river, still under the name of the “Glass,” or the “Beauly,” then passes Aigas, and by a temporary bifurcation forms the island known as “Eilan Aigas,” below which it receives “Breach—achy Burn,” and after a rough rocky course of about a mile it falls over a cliff at Kilmorack, and thence meanders through comparatively level ground to the estuary known as the Beauly Firth. The Castle of Lovat is near the river where it begins to widen out into the estuary. The town of Beauly is about a mile higher up. The Falls of Kilmorack are about four miles above Beauly by road, but following the course of the river they are nearly double that distance. From the Falls to Breachachy Burn the distance is about a mile; Aigas is about two miles higher up; Erchless about three or four miles farther up; and from Erchless to Fasnakyle the distance is about eight or ten miles. The whole distance from Beauly to Fasnakyle is thus about twenty miles by road, and from Kilmorack to Fasnakyle about sixteen miles. The falls of Kilmorack are so high that unless in heavy floods salmon cannot reach the upper waters, and as for about six centuries cruives extended across the whole river below the falls, with hecks so close that no salmon could pass unless in time of very high floods, the salmon-fishing above the falls was practically valueless until after the legislation of 1862, by which close cruives were abolished and a regular weekly close time was made imperative.”

During the course of the discussion before the Lord Ordinary, which followed upon a proof as to the extent and nature of the possession, a number of questions were raised in regard to the interpretation of ancient titles, the situation of certain places mentioned therein, &c., but the only point which it is necssary here to report is that upon which the case was ultimately decided, viz., the effect in the circumstances of the case of a barony title followed by possession, and what amount of possession was sufficient to constitute a right of salmon-fishing.

The various questions which arose and were discussed in the question of a direct grant were however shortly these:—

Lord Lovat produced a Crown title to his estates, dated 1774, uniting the whole into the barony of Lovat, one of the component parts being an earlier barony of Bewlie comprehending sundry lands, and containing an express grant of salmon-fishing super aquam de Forne, or Cairncross, usque ad mare lying within the barony of Bewlie. This barony of Bewlie had been granted in 1571 by charter from the priory of Bewlie to Fraser of Lovat. Under this Crown charter two questions arose—(1) as to the precise position of Cairncross, or as it was called in older titles “Carnecot,” the Crown holding that it was situated below Kilmorack, and Lord Lovat that it was at a point far enough up the river to include all the fishing in dispute; and (2) as to the extent of the “Water of Forne,” it being admitted on all hands that it applied to part of the river in question, the difference being as to whether it only applied to the part below the falls of Kilmorack, or to the whole river with its tributaries.

Titles were produced by the parties in support of their views, dating from the 12th century, the more important of which are examined in the opinion of the Lord Justice-Clerk ( infra). It is sufficient here to state that in 1571 Fraser of Lovat possessed continuously the lands bounding the streams of the Diag, the Glass, and the Beauly on the south side, from Guisachan to the sea. On the north side he possessed an equally continuous boundary on these rivers, with the exception of a small portion belonging to The Chisholm.

Previously to this, in 1539, Fraser of Lovat had obtained a Crown charter, erecting into a new barony of Lovat several baronies then belonging to him, including among others lands which were above the falls of Kilmorack with their salmon fishings. The charter of 1571 which was obtained from the priory of Bewlie, and which is referred to above, was repeated in the Crown charter of 1774.

The estates of the predecessor of the defender had been confiscated in 1746, prior to which time, although feus had been given off, no grant of salmon-fishing had been given along with them. They were restored in 1774 precisely as they had been forfeited, and erected into the barony of Lovat, under which title they had been subsequently held.

On behalf of the Crown it was maintained that Lord Lovat could point to no grant of salmon-fishings prior to 1571 above the falls of Kilmorack, and that therefore the Crown charter of 1774, which gave him nothing more than he had before the forfeiture, gave him no express grant; that though Lord Lovat had undoubtedly full and complete possession of the salmon-fishing below the falls for centuries, that possession was to be ascribed to the express grants which he there had, and not to the barony title, and that therefore such fishing was quite insufficient to create or imply a right of fishing above the falls; that therefore the only way in which Lord Lovat could establish a right above the falls was by proving that he had fished this portion of the river in an appropriate manner and for a prescriptive period, which the Crown maintained he had not.

Lord Lovat maintained that he had an express grant to the whole fishings of the river from Cairncross to the sea, which included all the fishings in dispute. If this were not so, he maintained that all his lands having been erected

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into a barony, the river, which was within the lands, and its salmon-fishings, were a unum quid, and that therefore he, having admittedly exclusively possessed the fishings of the lower part of the river, was entitled to the fishings of the whole.

Besides, he further maintained that he had in point of fact possessed the fishings of the upper part of the river above Kilmorack to an extent sufficient to give him the right of salmon-fishings when the possession was founded on a barony title.

The facts in regard to the possession of the fishings in the river in question were, briefly, as follows:—Below the falls Lord Lovat had from time immemorial had full and complete possession, exercising his right inter alia by means of cruives just below the falls of Kilmorack. These cruives stretched right across the whole river, and were narrower in their hecks or spars than was allowed by law until 1862—since then the hecks had been wider. From the position and closeness of these cruives they caught almost all the salmon that came up the river, hardly any fish getting past them; and the falls, which were very high and impassable to salmon except in a full flood, stopped mostly all the fish that escaped the cruives. Lord Lovat in fact reaped the whole crop of salmon of the river at this point. In regard to the possession above the falls, it was admitted that since 1862 Lord Lovat had regularly fished the river by net and coble once a year. The main question, therefore, was for the period prior to 1862. In regard to this period there was a certain amount of evidence—which, however, was not very satisfactory—speaking to occasional visits of Lord Lovat's people with net and coble to fish the upper waters, one or two witnesses stating that they went mostly every season. From 1845 the fishing had been in Lord Lovat's own hands; previous to that it had been let to various fishing tenants, and it was in regard to this latter period that the above evidence applied. During all the time that the fishing was in the possession of Lord Lovat himself, watchers were in the habit of being sent up to the upper stretches whenever the net-fishing on the lower part of the river was closed, and kept there until the spawning was over; they watched the whole river as far as salmon could go. During the open season Lord Lovat's gamekeepers had orders to prevent people fishing, which they did. The only person who was proved to have occasionally fished by rod and line was The Chisholm, which was explained by Lord Lovat in this way that his father, in whose time the fishing took place, did not believe that any right of fishing could be acquired by rod-fishing, and that therefore he was unwilling to hinder The Chisholm from fishing, he being a neighbour with whom he was on good terms, and whose land abutted upon the river.

There were also produced by Lord Lovat a number of leases of farms on the upper portion of the river extending from 1802 downwards, in which the tenants were taken bound not to take salmon themselves, and also to preserve the fishings and prevent others from taking salmon.

As already explained, prior to 1862 the fishing above the falls was comparatively worthless, almost all the fish being caught below, and besides, the river was not there, except in a few places, very well adapted for net and coble fishing. Since 1862 the upper part of the river had been fished regularly.

No evidence was brought by the Crown to the effect that the upper stretches of the river were watched by any one other than Lord Lovat, nor was there any evidence of any objection being made by the Crown or by any of the upper proprietors to his method of fishing prior to 1862.

The Lord Ordinary ( Curriehill) pronounced an interlocutor decerning against Lord Lovat in terms of the conclusions of the summons. His Lordship added a note, which so far as it related to the questions of the barony title and possession, was as follows—

“ Note.—But the question—and it is an important one—still remains, viz., whether the defender, either in virtue of his other titles alone, or of his titles and possession thereon, has the right to fish for salmon in the river above Kilmorack, and if so, how far that right extends? The defender's title is a barony title, but it contains no express grant of salmon-fishings, except in those parts of the river which have been already specified, all of which are below Kilmorack. It is now quite clearly settled that a barony title does not of itself constitute or confer a grant of salmon—fishings. Indeed, it has not much, if any, greater virtue than an ordinary Crown charter ‘ cum piscationibus,’ but it is a good title on which to prescribe a right of salmon-fishing by forty years' possession, although it does not contain any reference to fishings at all. Has, then, the defender in the present case had any such possession in virtue of his title? He maintains that he has had full possession, in respect—(1) That he has de facto from time immemorial regularly fished for salmon at all suitable times and at all practicable places, and by the proper means, from Guisachan to the sea; (2) That even should he fail to prove regular fishing on the whole river, such fishing was not required either to constitute or explain the grant, and that it is enough to prove (as the defender maintains he has done) that he and his predecessors have fished salmon from time immemorial in one or more parts of the barony, such exercise of fishing being (as he maintains) in law sufficient to establish and preserve a right over the whole river within the bounds of the barony; and (3) That in particular his fishing below the falls of Kilmorack has been of such a character as to establish and maintain his right over the whole river to its source, or at least to Guisachan. Now, before noticing these arguments in detail, it is necessary to recall the following facts:—(1) That until the Salmon Fisheries Act of 1862 came into operation the defender's cruives had for centuries prevented the passage of salmon into the upper waters above the falls of Kilmorack, except during close time or in unusually high floods, so that practically the fishing above the falls was unproductive; (2) That between the falls and Breackachy the river could not, owing to its rocky bed and rapid course, be fished at all, certainly not with net or coble; (3) That no fish could ascend any of the affluents of the main river to any material distance, because of falls above the respective points of junction. It is also necessary to explain the extent of the land bordering on the

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river, now belonging or which formerly belonged to the defender or his predecessors, because he maintains that, in so far as lands lying on the river and formerly belonging to his ancestors have been acquired by other parties, the right of salmon-fishing has not been transferred, and remains with him as a separatum tenementum in virtue of his original titles.

Prior to 1571 the owners of the lands on both sides of the river from the sea to the source were only three in number. Hugh Lord Fraser of Lovat was, under various titles, proprietor of the whole lands on the south or right bank of the river, and he was also proprietor of the lands on the north or left bank from the Glass burn down to the lands of Breackachy, and of the lands of Kirkton of Kilmorack opposite the falls. The Chisholm was proprietor of the lands of Breackachy, extending along the left bank of the river for a short distance above the Breackachy burn, and of all the lands on the same side of the river above the Glass burn. The priory of Beauly were owners of all the lands upon the left bank from Breackachy to the Beauly Firth, except the lands of Kirkton of Kilmorack, which belonged to Lord Lovat. It has been already mentioned that the Lovat estates were then held by Hugh Lord Fraser of Lovat under the barony charter of 1539, and that in that barony were included not only certain lands nominatim, but several other baronies which had been previously erected, and among others the baronies of Ard Abirtarf, and Stratharrick and Erchless, and an older barony of Lovat. In 1571 he became proprietor of the whole of the lands which had belonged to the priory, so that The Chisholm and he were then the sole riparian proprietors upon the river. The particular lands adjoining the river and held by him under the barony charter of Lovat, including therein the older baronies above specified, are the following:—[ Names the different lands on both sides of the river. But one thing is certain, viz., that there is no express or implied grant of salmon-fishings as attached to any lands above the falls.

In the course of the seventeenth century Lord Lovat feued out to The Chisholm the lands of Easter and Wester Erchless, Comerkil or Comerkirkton, Wester Comer, and Buntaits and Mauld, on the right bank, and the superiority of these lands afterwards fell to the Crown. In the eighteenth century Lord Lovat's estates were forfeited, and were for a considerable time in the hands of the Commissioners of Forfeited Estates, but they were for the most part restored to the defender's ancestor, General Simon Fraser, in whose favour a charter of novodamus passed under the Great Seal on 19th April 1774. In that charter there were included nominatim the whole of the lands above enumerated, and many others, although in point of fact Erchless, Comar, Comarkyle, Buntait, and Mauld had all long before been given to The Chisholm. The whole of the restored lands had been previously erected in 1703, in unam liberam baroniam et dominium de Lovat,' and in 1704 into a burgh of regality, and were now in 1774, along with ‘ terras de Kirktown de Kilmorack cum lie Craig et piscatione ejusdem vocat lie Ess de Kilmorack,’ of new erected into ‘the barony of Lovat and burgh of Bewly.’ Since that time the lands of Guisachan have been sold to Sir Dudley Coutts Majoribanks, and the lands of Aigas to Mr John Gordon Oswald, and the superiorities of these lands belong now to third parties, so that Lord Lovat is not proprietor of nearly so much land fronting the river as his ancestors were in 1571. He is proprietor of both banks up to the Breackachy burn, of the south bank from that burn to Easter Mains, and again ex adverso of the Easter and Wester Croichails, and he is proprietor of Struy on the left bank from the Glass burn down to opposite Mauld.

“Now, as I have already explained, the only express grants of salmon-fishings in any of Lord Lovat's titles is in connection with lands below the falls of Kilmorack, and the question is, whether these lands and the lands above the falls having been all united into one barony, a right of salmon-fishing over those parts of the barony in connection with which there are no express grants has been established by the possession which the defender has proved? Now, it is clearly proved and not disputed that in virtue of their titles Lord Lovat and his predecessors have for centuries had the full and exclusive possession of the whole salmon-fishings below the falls. But I think, as the fishing for salmon below the falls of Kilmorack was practised either in virtue of express grants of salmon-fishings or of piscationes,' in connection with particular lands on that part of the river, such practice is quite insufficient either to create or imply a right of salmon-fishing in the river above the falls. The question therefore as to the right of Lord Lovat to fish for salmon above the falls must depend solely upon the question of fact, viz., whether he has to any, and if so to what, extent fished for salmon above the falls in the appropriate manner and during the prescriptive period? The evidence shows very clearly that for the last fourteen or fifteen years Lord Lovat and his father have been in use to send their men with net and coble to fish for salmon from the Croichails down to near Breackachy one day in each year just at the close of the statutory period for net fishing, and that during these years the tenants of their shootings of Eilan-Aigas and Eskadale have had rod-fishing for salmon included in their leases, and have paid rent therefor, and have been in use to fish for salmon with the rod. These leases have not been produced, but the fact of the rod-fishing having been so let and exercised was not disputed by the Crown. But for a period of seventeen or eighteen years previous, that is, from 1845 to 1862, there is not only no proof of salmon-fishing of any kind having been carried on above the falls, but Lord Lovat and his factor Mr Peter admitted that no such fishing had taken place, owing, as they explained, to the existence of the close cruives below the falls, and to the height of the falls themselves, whereby salmon were prevented from ascending the river above the falls in sufficient numbers to make the fishing of the upper waters commercially profitable. Still it is the fact, and a most important one, that during that period salmon did ascend to the upper waters, and might have been caught there if the attempt had been made. The river from Breackachy burn, up at all events to Fasnakyle on The Chisholm's ground, abounds in pools well adapted for salmon-fishing. As, however, none was practised from 1845 to 1862, it is obvious that in order to establish by precription a right to fish for salmon in these upper

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waters the defender must prove forty years' continuous and uninterrupted practice of salmon-fishing for forty years before 1845.

In my opinion he has failed to establish any such possession. The salmon-fishings of the Beauly appear to have been let by the defender and his predecessors to a succession of tenants (professional salmon-fishers) from the middle of last century down to 1845, when the defender's father took them into his own hands. Several of these leases have been produced, but there is nothing in them to show the limits of the fishings so let, although it is obvious from their terms that the fishing was chiefly carried on in the part of the river below the Falls of Kilmorack. It is true that in one or two leases of lands bordering on the river, some of them in the early part of the present century, Lord Lovat and his father bound their agricultural tenants to prevent all persons from fishing for salmon, particularly in close time, ex adverso of their farms, and reserved right to themselves to have access to the river, and to draw their nets there if and when required. And if the defender had been able to show by satisfactory evidence that it was the regular practice of the tenants of the salmon-fishings or of the proprietors to fish the pools of the upper waters with net and coble regularly every year, even although only once a-year, I should perhaps have been inclined to hold that, considering the limited number of fish in these waters, there had been sufficient possession to establish a prescriptive right. All that the defender has proved, however, is that the persons who were tenants of the salmon-fisheries upwards of forty years ago occasionally drew their nets in the upper waters, sending through the night a boat and boat's crew up to some point which no one can now specify, and who, in the morning and forenoon of the following day, drew the pools here and there down to Eilan-Aigas.

“But the evidence shows that this was not a regular practice, but only an occasional act, and that nothing of the kind took place during the tenancy of Wilson (1831 to 1845), and there is only hearsay evidence that it took place during Berry's tenancy, and between 1824 and 1831, The regular annual practice therefore, for fishing these upper waters did not begin until 1862. The defender founded very strongly upon the fact that he had incontestibly proved that for more than forty years he and his predecessors had been in use regularly to watch the river from Fasnakyle to Breackachy burn by means of water bailiffs in their service. But I regard that circumstance as being in the present case neither conclusive nor important. The watchmen were employed only during “close time,” and for the protection of the breeding and spent fish. Now, whether Lord Lovat had right to fish above the falls or not, he was clearly before 1862 the person who was mainly interested in protecting the breeding fish, because by means of his cruives below the falls he virtually enjoyed the whole profitable fishing on the river. The Chisholm and other riparian proprietors, although they had no legal right to salmon-fishings, seem to have, in point of fact, fished a good deal with rod, and they therefore have no interest, but quite the reverse, to interfere with Lord Lovat protecting the river against illegal fishing in close time, and against poaching generally, even although for these purposes the watchers might occasionally enter upon their lands.

On the whole matter, therefore, on this branch of the case, I am of opinion that the defender Lord Lovat has failed to establish sufficient possession of salmon — fishing in the river above the Falls of Kilmorack to give him a prescriptive right to fish there in virtue of his barony title, and as the salmon-fishing which he has undoubtedly possessed from time immemorial below the falls has been in virtue of grants limited in their expression to the river ex adverso of lands situated below the falls, possession of the fishing in those parts of the river cannot be held as equivalent to possession of the salmon—fishing in the river ex adverso of other parts of the barony. In the case of the Lord Advocate v. Sir John Cathcart, 9 Macph. 744, where the barony was erected ‘ cum piscationibus,’ and consisted of detached portions of land, of which two were intersected or bounded by rivers and the third was bounded by the sea, it was held that immemorial possession of salmon-fishings in the river did not entitle the baron to fish for salmon in the sea, because he could not establish more than about thirty-five years' continuous possession of the sea fishing. In the present case the circumstances are no doubt different, as the defender's lands extend continuously along the river for sixteen or eighteen miles, except at that part about three or four miles in length where the lands of Erchless intervene. Still I think, that as no regular fishing has been proved to have taken place above the falls, and as the fishing below the falls has all been exercised in virtue of special grants expressed in the titles as pertaining to certain specified lands all situated below the falls, and is therefore not to be ascribed to the general grant of barony, I cannot see any good ground for holding possession below the falls as equivalent to possession above the falls. In saying this I do not mean to express or indicate any opinion to the effect that where a right to fish salmon depends upon a barony title followed by possession, it is necessary that the party pleading prescription should prove that he has regularly fished in the proper manner every pool and stream in the river in which a salmon might be expected to be caught. It would be enough, in my opinion, were it proved that he substantially fished over the whole of the river within his bounds in the appropriate manner, and regularly and continuously from year to year throughout the prescriptive period. I would be slow to hold that if he fished certain pools regularly and others occasionally, or not at all, he had failed to establish a right to fish in the whole. But when the proof shows that although proprietor of lands stretching for sixteen to eighteen miles along a river, the defender has systematically confined his fishing to the lower reaches of the river, only a few miles in extent, I think it must be held that he has neither in fact nor in law had any possession of the fishing in the upper water, especially in a case like the present, where the continuity of his property on the bank of the river is interrupted for a considerable distance by the lands of other owners. In short, the maxim ‘tantum prœcriptum quantum possessum’ applies to the present case, and the defender can claim no right of salmon-fishing above the falls

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because he has failed to prove that he has possessed any.

I need hardly say that the foregoing observations upon the proof apply not only to the salmon-fishings ex adverse of the defender's own lands, but also to the right of fishing which he claims ex adverse of the lands of the other defenders. The proof of possession fails equally with regard to all. Indeed, there is really no proof at all satisfactory to my mind of any possession whatever of salmon-fishings ex adverse of the lands of any of the other defenders.

It is therefore unnecessary to consider the question whether Lord Lovat, although he has ceased to be owner of the lands now belonging to these defenders, has retained the salmon-fishing thereof as a separatum, tenementum. I can well see that difficult questions might have arisen in a different state of the facts, but happily it is unnecessary to consider such questions, and thereby add to the length of this note, which is already too long.

The result of the whole matter is that in my opinion the Crown is entitled to decree of declarator, with expenses as concluded for.”

The defender Lord Lovat reclaimed and argued—(1) If Lord Lovat, having the barony title applicable to the whole lands on each side of the river, had had in a reasonable sense possession of the fishing of the river for a prescriptive period, he was now entitled to the right of salmon-fishing. (2) Lord Lovat having had the whole lands erected into a barony, that constituted by way of title the river and its fishings a unum quid, and he as baron was entitled to possess in such place or places as suited him, and the possession of any part of the fishings of the barony was equivalent to possession of the whole, it being a continuous stretch. On this point the case of the Lord Advocate v. Cathcart, May 19, 1871, 9 Macph. 744, was not an authority to the contrary, for there the stretch of water was not continuous, being river and sea three miles off. Possession was sufficient to give right to the whole fishings of a parcel of lands bound up into a barony, even with no express grant; and surely, therefore, the grant of fishings in the titles to certain of the lands would not take away this right; and this was the ground that the Lord Ordinary must have gone upon. In regard to the question of double title, it was submitted (1) that the express grants would not sustain the possession Lord Lovat had had; and (2) that the express grant was merged in the barony title, and even if not, Lord Lovat was entitled to attribute the possession to whatever title was most favourable to himself. Even if Lord Lovat had had no possession above the falls, he still had full possession of the fishing, for he exercised it to the best advantage to himself, no one interfering with him. But he had possessed above the falls in respect of occasional fishing by net and coble, by rod fishing both by himself and by his tenants, by preserving the fishing and allowing no one to exercise the right, and by the insertion in the leases of the farms bordering on the river of a reservation of the right and an obligation on the tenants to protect it. This amount of exercise might not be sufficient to create a right, but it was quite sufficient in Lord Lovat's circumstances to preserve it.

Authorities— Lord Advocate v. Cathcart, quoted supra; Lord Advocate v. M'Culloch, Oct. 20, 1874, 2 R. 27; Baird v. Fortune, April 25, 1861, 4 Macq. 127, 33 S. J. 437.

Argued for respondent—If there were preexisting grants of fishing with possession, followed by a barony title, the possession must be ascribed to the prior grant, unless the right was enlarged by the barony title. The Crown was entitled to ask, How did your possession begin? Lord Lovat no doubt had express grants to the fishing below the falls, but this was not sufficient to prescribe a right of fishing above the falls. A barony title in a question of salmon-fishing was no better than a grant cum piscationibus, at all events where there was a continuous stretch of water as here. Under it, therefore, in order to prescribe a right to the whole stretch of fishings, the whole must be possessed as in a case where the title was cum piscationibus. It was submitted that that was not the case here, for there was no proof of adequate possession above the falls. To prescribe a right of fishing, the possession must be of an open, systematical, continuous, exclusive, and public kind, and there was nothing of that sort here.

Authorities— M'Donald v. Lord Advocate, April 16, 1875, 2 R. H.L. 49; Lord Advocate v. M'Culloch, quoted supra; Milne's Trustees v. Lord Advocate, July 19, 1873 (decided Jan. 7 and 10, 1869), 11 Macph. 966; Lord Advocate v. Hunt, H.L., 1 L.R. S. A. 85; Chisholm v. Fraser, M. App., Salmon Fishing, No. 1; Duke of Richmond v. E. of Seafield, Feb. 16, 1870, 8 Macph. 530 (p. 541); Stair, ii. 1, 27.

At advising—