Scottish Court of Session Decisions

Now, it is not disputed that the superior's right to a composition depends entirely on the old Statute 1469, chap. 36, and what he is entitled to require in name of composition is, in the words of that statute, “a year's rent as the land is set for the time.” I quite agree with Mr Kinnear that there is no subsequent statute which in any way extends the measure of the superior's right, but, on the other hand, it is perfectly obvious that the words of the statute must be subject to construction, and in practice its words have been construed in a somewhat extended sense. Before, however, we come to consider how far the statute, as it has been construed, will include the present case, I think it advisable to treat the question as if the statute were understood literally, and to put the case on the assumption that the lease which the defender formerly held were still in existence, and that he was not proprietor, but someone else who was seeking an entry with the superior. Now, in such a state of matters would the words “a-year's maill as the land is set for the time” include the rent paid for the shootings. I think they would. If, indeed, it were the law that a right of shootings was a mere personal right—as at one time the Court appeared inclined to hold—there would be a great deal to be said against the application of the words of the statute to a lease of shootings; but I think it has now been laid down in a series of decisions that this is not the nature of a right of shootings, but that what the tenant receives under such a lease is a right of occupation of land, just as in the case of an agricultural tenant. It is for a different purpose no doubt, but it is not the less a right of occupation. The sporting tenant goes on to the land for the purpose of shooting game, just as the agricultural tenant goes for the purpose of tilling the ground; and although the object is different, the one case just as much as the other is an occupation of land under a contract, and I know no other species of contract which will include the present except the contract of lease. I speak of the result of a series of judgments which need not be referred to. Now, if that is so, it is very difficult to say that a year's rent does not comprehend the maills which are payable for the land as set to the sporting tenant, just as much as the mails payable by the agricultural tenant. If, therefore, we had been dealing here with a case of let shootings, I should without difficulty have come to the conclusion that such a case is included in the very words of the statute.

But the case we are dealing with here is a case in which the shootings are not let. It is, however, also one in which the shootings have been let and are of an appreciable value; and the question is, whether the value of such unlet shootings can be brought within the words of the Statute 1469? Now, if the superior could not under that statute obtain anything for the value of lands which are unlet to any agricultural tenant, and are cultivated by the owner, I should have very great difficulty in saying that the shooting value should be included any more than the agricultural value. But it is just here that this ancient statute has been subject to construction; and the mode in which the value has been estimated is explained by Lord Curriehill in Blantyre v. Dunn, in which he thus paraphrases the result of the decisions—“According to the established construction of this enactment, the measure of the composition payable by such an entering vassal is the rent payable to him by his tenant in the lands at the time of the entry, if they be then set in lease to a tenant, or the sum for which they might then be let if they are in the possession of the vassal himself.” I do not think it can be disputed at this time of day that the statute has received this construction, and that what Lord Curriehill gives as the rule is the result of a series of decisions. Now, if that be so, and if the shootings, had they been let, would have been included in the words “a year's mail as the land is set for the time,” it appears to me that the shootings must equally be included when they are, as they are here, in the hands of the vassal. I therefore entirely concur in the judgment of the Lord Ordinary.

It has been said that the cases on the authority of which the Lord Ordinary proceeds did not occur under the Act of 1469, but under a very different statute. No doubt that is so. But do the words of the Act of 1469 differ in any essential particular from the words of the statute on which these cases were decided? Just let us see what are the words of the Aberdeen Act which were in question in those cases. What the wife of an heir of entail in provision is entitled to have is a liferent provision out of a certain proportion of the lands and estate, which is thus described as not to exceed “one-third part of the free yearly rent of the said lands and estates where the same shall be let, or of the free yearly value thereof where the same shall not be let.” Now, it seems to me that in meaning and extent these words exactly correspond to the words of the Statute 1469 as construed by Lord Curriehill in Blantyre v. Dunn, and consequently that the decisions on that provision of the Aberdeen Act are authorities in the present question.

Lord Mure and Lord Shand concurred.

Lord Deas was absent.