Scottish Court of Session Decisions

In April 1900 Alan Plantagenet, Earl of Galloway, heir of entail in possession of the entailed estates of Galloway and others, including salmon fishings in the rivers Cree and Minnick, and in the Penkiln Burn and Burn of Trool, in Wigtown and Kirkcudbright, entered into a contract of lease with the Duke of Bedford and others, members of the Cree Salmon Angling Association. By this lease the Earl of Galloway, therein called the first party, in consideration of £350 per annum, leased to the members of the association, therein called the second parties, the whole of the salmon and trout-fishings, both net and rod, in the rivers Cree and Minnick, and in the burns of Trool and Penkiln, so far as forming part of the said entailed estate. The lease was to endure for a period of twenty-one years or fishing seasons, from 1900 to 1920 inclusive.

The provisions of the lease so far as material to the present report were as follows:—“And whereas, with the view of improving the fishings in said rivers and streams and increasing the stock of salmon and other fish therein, it has been arranged between him (the first party) and the said second parties hereto that he should let to them, for the period and on the terms after written, the fishings hereinafter described: And whereas, in furtherance of the objects above mentioned, the said first party has also negotiated leases from various other riparian proprietors on the said river Cree possessing rights of salmon and other fishing therein, and has arranged that the said leases should be granted to and in favour of the said second parties hereto, subject to the terms and conditions as to the manner in which the said rights of fishing therein are to be exercised which are contained in the said several leases: And whereas it is intended that the whole of the said fishings hereinbefore referred to should be possessed and worked together by the said second parties for the individual use and enjoyment of the members of the Cree Salmon Angling Association, of which association the said second parties are members, and that of their friends or guests, of and in the rod-fishings therein, and also in furtherance of the objects before mentioned, and that these presents should accordingly (subject to the special provisions, reservations, declarations, and conditions hereinafter written) be taken and read in conjunction with the said leases granted by the said other proprietors of fishings in the said river Cree, and negotiated by the said first party as aforesaid, as these are set forth in the schedule hereto annexed: Therefore the said first party has set, and in consideration of the yearly rent and other prestations after mentioned sets, and in tack and assedation lets, to the said” second parties … “All and whole the salmon and other fishings (both net and rod fishings) following, viz., in the first place, the salmon and trout-fishings in the river Cree, so far as belonging to the said first party, commencing at the south boundary of Barsalloch Farm, belonging to the said Earl, and extending upwards to the source of the said river in Loch Moan; but excepting and reserving always therefrom, during the first five years or fishing seasons of this lease, the portion of said river which has been let by the said first party to Mrs Elizabeth Ellen Stopford Blair or Heron Maxwell Blair of Penninghame, conform to minute of lease entered into between them, dated the 7th and 11th, both days of May, in the year 1895, and a copy of which lease is herewith delivered to the said” second parties; … “in the second place, the salmon and trout-fishings, so far as belonging to the said first party, in the river Minnick, from its confluence with the river Cree upwards to the march of the said stewartry of Kirkcudbright with the county of Ayr; in the third place, the salmon and trout-fishings in the stream or water known as the Burn of Trool, from its issuing from Loch Trool to its junction with the Minnick, together with the exclusive use and control of the dam and sluice at the foot of Loch Trool; in the fourth place, the salmon and trout-fishings in the stream or water known as the Penkiln Burn, forming a tributary of the said river Cree, so far as belonging to the said first party—all lying, the said several salmon and other fishings before described, in the said county of Wigtown and stewartry of Kirkcudbright; and in the fifth place, the right or privilege of fishing for sparlings in the said river Cree, in so far as belonging to the said first party, and that for the space of twenty-one years or fishing seasons, beginning with the present year or fishing season 1900 and ending with the year or fishing season 1920, both inclusive, as the duration of such fishing seasons is or may be fixed by Act of Parliament, or by any bye-laws made or to be made by any competent authority; with entry to the said several fishings hereby let (save and except as aforesaid, and to the extent hereinbefore excepted and reserved) as at the 11th day of February 1900 (notwithstanding the date hereof), being the commencement of the fishing season for that year, to be thenceforth peaceably occupied and possessed by the said second parties and their foresaids during the period above mentioned, but that subject always to the special reservations, declarations, and conditions following, which are hereby declared to be express burdens upon and affecting not only the lease and right of possession hereby granted, but also, of consent of the said second parties hereto (in so far as they are entitled to grant such consent, and quoad the tenants' rights and interests therein respectively), the several leases and rights of possession specified in the said schedule hereto, and which are to be held in conjunction herewith as aforesaid

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—that is to say ( First) with the view of improving the fishings in the said rivers Cree and Minnick and their tributaries, and increasing the stock of fish therein, it is hereby declared that the said salmon and trout-fishings hereby let are so let for rodfishing only, except to such extent as the said first party or his foresaids shall from time to time require the said second parties to fish the same or any parts thereof with net and coble, for the purpose of keeping up a right of net-fishing therein, but the said second parties shall be bound, if and when required by the said first party and his foresaids as aforesaid, to fish the said rivers (in so far as the first party's rights of fishing therein are hereby let), or any part or parts thereof, with net and coble, or in such other legal mode as he or they may specify, for such number of days (not exceeding six) in each year as shall be requisite in the opinion of the said first party or his foresaids to keep up the full rights of salmon-fishing vested in or belonging to the said entailed estates: provided always that at least one week's previous notice of such requisition shall be given in writing, by or on behalf of the first party to the second parties; ( Second) It is a condition of the lease hereby granted that the second parties shall similarly restrict the exercise of the rights of salmon-fishing acquired by them under the said leases specified in the schedule hereto to rod-fishing only, except to such extent as the proprietors of the several fishings, or the said leases themselves, may require the second parties to exercise the right of fishing by net-and-coble or other mode than rod-fishing for the purpose of keeping up or preserving the titles of the said several proprietors, but to that extent only; ( Third) the rights of fishing hereby granted to the said second parties shall as regards (1) the portion of the said river Cree lying above Minnigaff Kirkpool; (2) the river Minnick and Penkiln Burn; and (3) the said Burn of Trool and the dam and sluice at the foot of Loch Trool, cease and determine on the 31st day of July in each year or fishing season, and the said first party shall be entitled, either by himself or his foresaids, to enter into possession of, occupy and use the said fishings in the said portion of the said river Cree, the river Minnick and Penkiln Burn, and the Burn of Trool above mentioned, or to let the same to one or more tenants for the remainder of each fishing season, and that in the same manner and to the same effect as if this lease had not been granted; but that in each and every case for rod-fishing with artificial fly only or such other method as may be permitted by the rules of the said Association: Declaring that the right of the said first party or his foresaids, or of any tenants to whom any right of rodfishing may be let as aforesaid as from and after the said 31st day of July in each year, shall cease and determine at the end of the fishing season of each year during this lease; ( Fourth) The fishings hereby let, together with the fishings held under the other leases before referred to, shall (unless otherwise arranged between the said first party and the said second parties and their respective foresaids) be divided into not more than seven shares with relative alternative beats, the said beats being apportioned in rotation among the members of the said Cree Salmon Angling Association: Declaring that the said first party and his foresaids shall have right in any year or fishing season after the conclusion of the first three years or fishing seasons under this lease, to claim the uses and privileges attaching to one-seventh share of the whole fishing rights held under this and the said other leases with relative alternate beats, and such right is hereby reserved to him and them accordingly upon contributing one-seventh share or proportion of the rental of the said fishings, together with a corresponding share or proportion of the cost of management thereof (including therein watching taxes and public burdens), for the year or season in which such reserved right or privilege is exercised: Provided always that if the said first party or his foresaids shall desire to exercise such reserved right or privilege he or they shall give notice thereof to the said second parties not less than three months previous to the beginning of any fishing season in which he or they may desire to exercise the same of his or their intention so to do.… For which causes and on the other part the” second parties “bind and oblige themselves and their said respective heirs, executors, and representatives whomsoever, all conjunctly and severally, to pay to the said Earl of Galloway and his foresaids or to his or their factor for the time the sum of £350 sterling of yearly rent (subject to the deduction after mentioned) in respect of the said fishings hereby let, … but providing and declaring always that during the first five years or fishing seasons of this lease a deduction shall be allowed from the said rent hereby stipulated of the sum of £25 sterling per annum … in respect of the fishing in the said portion of the river Cree which has been let by the said first party to the said Mrs Elizabeth Ellen Stopford Blair or Heron Maxwell Blair of Penninghame as aforesaid.” …

Alan Plantaganet, Earl of Galloway, died on 7th February 1901, and was succeeded by the Right Honourable Randolph Henry, the present Earl of Galloway, as heir of entail in possession of the said estate of Galloway and others.

The present Earl of Galloway brought this action against the Duke of Bedford and others, the members of the Cree Salmon Angling Association, concluding for reduction of the leases above mentioned. After narrating his title and the provisions of the lease he made the following averment:—“(Cond, 4) The pursuer's predecessor did not apply to the Court for authority to grant the said lease, and did not give notice to the pursuer as next heir of entail, or to any of the subsequent heirs of entail. The pursuer's consent was not asked, nor was he in any way consulted as to the granting of the said lease. He would, if asked, have refused his consent to it

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being granted. The provisions and conditions of the said lease are unfair and prejudicial to the pursuer's rights and interests as heir of entail foresaid. The rent payable for the said fishings under the same is not a fair rent within the meaning of the Entail Acts. Prior to the granting of the said lease the late Earl received a rent of £200 for the net-fishings, and £75 for two small portions of the rod-fishings let respectively to the shooting tenant of Glentrool and to the proprietor of the estate of Penninghame, while he retained in his own hands the remainder of the rod-fishings, which were ample for the enjoyment of himself and his friends. The rod-fishings included in the lease are now partly sublet by the defenders, who are making, and will (if the said lease is not reduced), make a profit out of the said fishings. The effect of the said lease is to debar the pursuer from any use or enjoyment of the rod-fishings in question, to which he is entitled as heir of entail in possession of the said estates, except under conditions to which he does not feel bound or disposed to accede, and at a time of year when the said fishings are comparatively valueless. The defenders, or anyone having their permission, may under said lease fish within the private grounds and deer-park of Cumloden, where the pursuer usually resides, to the exclusion of himself and his friends residing with him at Cumloden.”

The pursuer pleaded—“(1) In respect that the heir of entail in possession of the said entailed lands and estates, including, inter alia, entailed fishings, had no power without the authority of the Court to bind the succeeding heirs of entail by the lease libelled, the said lease should be reduced as craved. (2) The terms of the said lease being unfair and prejudicial to the rights and interests of the pursuer as heir of entail foresaid, decree should be pronounced in terms of the conclusions of the summons. (3) The said lease being a ‘long lease,’ within the meaning of the said Entail Acts, and having been granted without statutory procedure and the approbation of the Court, ought to be reduced as craved. (4) The rent stipulated by the said lease not being a fair rent within the meaning of the Entail Acts, the pursuer is entitled to decree of reduction as craved.”

The defenders pleaded—“(1) The pursuer's averments being irrelevant, the defenders should be assoilzied from the conclusions thereof. (2) The lease in question having been validly granted by the late Earl of Galloway in the exercise of his powers as heir of entail, and in particular the power conferred upon him by the Act 6 and 7 Will. IV. c. 42, the defenders should be assoilzied. (3) The said lease having been granted for a full rent and for the benefit of the entailed estate, the defenders are entitled to absolvitor. (4) In any event restitutio in integrum being impossible or not being offered, the pursuer is not entitled to decree of reduction.”

After parties had been heard before the Lord Ordinary, the defenders on 3rd March lodged a minute whereby they stated “that in the event of the Lord Ordinary holding that the lease falls to be reduced quoad the trout-fishing, they were prepared to pay the full rent for the remainder of the subjects let, always reserving to the defenders their whole rights and claims against the pursuer and others as personal representatives of the late Earl of Galloway, the granter of the lease, in respect of eviction from part of the subjects let.”

On 8th March 1902 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—Finds that the lease in question, so far as it is a lease of salmon-fishing, is within the powers of the Rosebery Act, 6 and 7 William IV. cap. 42, and is not therefore open to challenge except on the ground that the rent was not a fair rent in the sense of that Act: Finds, on the other hand, that so far as the said lease includes rights of fishing other than salmon-fishing, the same was ultra vires of the late heir of entail, and is therefore invalid: Finds, however, that the defenders have offered by the said minute to renounce the said rights of fishing other than salmon-fishing, and to hold that part of the lease pro non scripto in a question with the heirs of entail: Finds that, in these circumstances, the pursuer is not entitled to reduce the lease in toto in respect merely of the inclusion in the lease of the said rights offered to be renounced by said minute: Finds, however, that the pursuer is entitled to a proof of his averments that the rent in the lease was not a fair rent in the sense of the Rosebery Act: Therefore, before further answer, allows the pursuer a proof of his said averments, and the defenders a conjunct probation.

Opinion.—“The pursuer here is the present Earl of Galloway, who has lately succeeded as heir of entail to the estates of the Earldom. The defenders are certain persons who obtained in 1900 from the late Earl a lease for twenty-one years of the whole salmon and other fishings both net and rod, in certain rivers and burns within the entailed estate. The object of the action is to reduce the lease as ultra vires of the late heir of entail, and as therefore not binding on the pursuer.

The grounds of reduction are (1) that the lease in question was not an act of ordinary administration, and was not authorised by the entail or by any of the Entail Statutes; (2) that the rent was not a fair rent, and that on that separate ground the lease was beyond the powers of the late Earl.

The defence is (1) that a lease of salmonfishing for twenty-one years is an act of ordinary administration, and that the right of trout-fishing may be supported as an accessory right; (2) that, in any view, this lease of salmon-fishing is within the powers of the 1st section of the Rosebery Act, 6 and 7 Will. IV., cap. 42; and (3) that the included right of trout-fishing is,—if beyond the powers of the Rosebery Act.—equally beyond the prohibitions of the entail.

I am not prepared to affirm that a tack of salmon-fishing for twenty-one years is an act of ordinary administration. That has

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not yet been decided, and I should at least doubt whether it is likely to be so. But having in view that salmon-fishing is a separate estate, capable of being separately entailed, and not a mere personal privilege incidental to the possession of land, I see no sufficient reason why the powers of the Rosebery Act should not apply. The words of the Act are,—‘It shall be lawful for the respective heirs of entail in possession to grant tacks of any parts of the lands, estates, or heritages contained in the entail for the fair rent of such lands or heritages at the period of letting, and for any period not exceeding twenty-one years.’ The words ‘estates and heritages’ are, I think, sufficiently wide to cover salmon-fishing, and there is nothing in the preamble or general scheme of the Act to import a contrary construction. The preamble of the Rosebery Act, it may be observed, is in marked contrast to that of the Montgomery Act (10 Geo. III. c. 51), which declares its object to be the removal of obstructions ‘to the cultivation of land.’

If, therefore, the tack in question had been confined to salmon-fishing, I should have simply, before further answer, allowed a proof to the pursuer on the question of fair rent. A difficulty, however, arises in respect of the inclusion in the tack of ‘fishings’ generally, by which it is not disputed is meant trout-fishings. The pursuer says that, in any view, that part of the tack is ultra vires and cannot stand, and that (the tack making no provision for separation) the Court cannot make a new contract for the parties.

Now, I am not able to doubt that a lease of trout-fishing is prima facie a contravention of a strict entail. The question is, of course, altogether apart from that decided with respect to leases of shootings in Pollock, Gilmour, & Company v. Harvey, June 5, 1828, 6 S. 913, and Birkbeck v. Ross, December 22, 1865, 4 Macph. 272. What was there decided was that the Act of 1449 did not apply to such leases so as to make them good against singular successors. But apart from the fetters of the entail, leases either of shooting or of trout-fishing would, I apprehend, as personal contracts, be quite good against succeeding heirs of entail, who are not of course singular successors. The point therefore is as to the application of the fetters of the entail. It is, however, hardly, I think, disputable that the constitution, or attempted constitution, of a burden of the kind supposed as against the entailed estate, or the succeeding heirs of entail, would be an alienation of part of the entailed estate, or, if not in strictness an alienation, would be at least an attempt to create a debt which, affecting succeeding heirs, might be made to affect the entailed estate. All this was, I think, long ago settled in the series of cases as to meliorations, which cases are conveniently summarised in Lord Deas' opinion in the case of Breadalbane v. Jamieson, 4 R. 667.

That leases, therefore, of trout-fishing or of shootings are prima facie contraventions of a strict entail is, I think, hardly disputable; and accordingly the only question is whether they come under the exception of acts of ordinary administration. Now, on that point all I need say is that leases of trout-fishing are certainly in no better position than leases of shootings, and as to these it has never, so far as I know, been suggested that a lease for twenty-one years could be supported as an act of ordinary administration. Such a lease would, as regards shootings, be unusual. As regards trout-fishings it would, I should think, be unheard of.

The defenders, however, argue that the scope of the Rosebery Act is coincident with the scope of the Act of 1685, and that if shootings (or, as here, trout-fishings) are ‘lands’ or ‘estates’ in the sense of the latter Act, there is no reason for saying that a tack of such subjects is not a tack of ‘lands’ or ‘heritages’ in the sense of the Rosebery Act. And no doubt it is possible to raise a verbal argument to that effect. In a sense a licence or permission to fish for trout for a term of years and for a pecuniary consideration may be called a tack. But it is certainly not a tack in the ordinary sense. As has been held with respect to shootings, it is truly a mere delegation of a personal privilege, not capable of being made real, and not binding (even when followed by possession) upon singular successors. Similarly it is not (even when the right is exclusive) a tack of land, or of, in the ordinary sense, a heritage—that is to say, a heritage ejusdem generis with land. It is no more so than a right of walking, or a right of bathing, or a right of golfing. When the Rosebery Act passed, it was not, in Scotland at least, a subject which was in practice intra commercium. Accordingly it is not surprising that it has never hitherto been attempted to apply the Rosebery Act to such a right. In point of fact it has always been assumed—I suppose as too clear for argument—that the Rosebery Act does not apply to a lease of shootings, or even to a piece of land to be used for sporting purposes. The case of Farquharson, 9 Macph. 66, referred to at the discussion, illustrates this very significantly. It is impossible, as it seems to me, to suggest that the Rosebery Act was in that case overlooked—overlooked by the judges and counsel and all who took part in that case.

It is further, however, suggested that if the Rosebery Act covers a lease of salmon-fishing, it may also cover a lease of trout-fishing when granted as an accessory of the salmon-fishing. But I am not able to assent to that proposition. Trout-fishing is not in any proper sense an accessory of salmon-fishing. It is an accessory of the ground from which it, the trout-fishing, is exercised. I could understand the argument that a lease for twenty-one years, say of a farm, was not excluded from the benefit of the Rosebery Act merely because the tenant obtained a joint or even an exclusive right of trout-fishing within the bounds of his farm. I could understand that argument though I should doubt its soundness. But I cannot, I own, understand how a grant of trout-fishing (exclusive

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or non-exclusive) can for the purposes of the present question be made better or worse by reason of its being tacked on to a right of salmon-fishing.

I am therefore of opinion that as regards the salmon-fishings the lease is good, but that as regards the trout-fishing it is bad.

It remains to consider whether the result must be a reduction of the lease in toto.

But for the minute No. 35 of process lodged by the defenders since the discussion, I should, I think, have been obliged so to hold. The Court could not make a new contract for the parties. In particular it could not apportion the stipulated rent between the salmon-fishing and the troutfishing. But it is a different question whether it is not open to the defenders (on the assumption of my judgment being what it is) to offer as they now do to hold as pro non scripto the whole rights of trout-fishing conferred on them under the lease. Having considered that matter, I have come to be of opinion that there is no reason on principle why they should not do so and thus solve the difficulty. What they offer does not, it appears to me, involve a reforming of the contract. It involves merely a qualified and partial reduction, by which, so far as I can see, no interest is prejudiced.”

The pursuer reclaimed, and argued—(1) The lease here as a whole was beyond the powers of an heir of entail. Prior to the Rosebery Act a lease was, strictly speaking, a contravention of the fetters of an entail, and the validity of any lease in a question with succeeding heirs depended upon whether it could be regarded as an act of ordinary administration— Montgomery v. Earl of Wemyss (Queensberry Leases Case), 1819, 1 Bligh 339. The provisions of the Rosebery Act only applied to leases of agricultural or mineral subjects or others ejusdem generis—to leases of corporeal subjects, not of incorporeal rights such as salmon-fishing. This is stated in Duff on Entail, p. 60, and shown by the fact that a special petition for power to grant a lease of shootings was found necessary in Farquharson v. Farquharson, November 3, 1870, 9 Macph. 66, 8 S.L.R. 61. That case was anxiously debated, and it was never suggested that the proposed lease was within the powers conferred by the Rosebery Act. A lease of salmon-fishings was only a personal contract, not a real right, and therefore not binding on a singular successor or succeeding heir of entail. It lacked one essential element of a lease—the right of hypothec. This right had been held to be essential in order to give a real right under a lease— Catterns v. Tennent, May 12, 1835, 1 S. & M'L. 694. Even if an ordinary lease of salmon-fishings might be held to fall under the powers conferred by the Rosebery Act, this was in all respects an extraordinary and exceptional contract. It was not really a lease for twenty-one years, but a series of leases, each of which determined on the 31st July of each year. In this view it could not be effectual against the succeeding heir, because the tenants' rights were not completed by possession. Without possession a lease was not binding except as a personal contract between the parties— Kerr v. Redhead, February 5, 1794, 3 Paton 309. (2) Even if the lease as a lease of salmon-fishings, of which immediate possession was given, might be binding on the succeeding heir, the lease quoad the right of trout-fishing was not binding. On this point the Lord Ordinary's judgment was not reclaimed against. The lease was ultra vires quoad the parts of the river let to Mrs Heron Maxwell Blair, of which the defenders were not to obtain possession until five years after the date of the lease. It was clear that an heir of entail had no right to bind his successor by contracts to come into force in the future; clear also that this part of the lease had not been clothed with possession, and therefore was not a real right— Kerr v. Redhead, cit. sup. If this lease was ultra vires in these respects it was reducible. It was not enough to offer to hold these portions of the lease pro non scripto; that was proposing to bind the present heir by a contract which the preceding heir had never made, and to which he himself was not a party. A similar proposal had been rejected in Hislop v. Duke of Buccleuch, July 2, 1821, 1 Shaw's App. 64; and Miller v. Carrick, March 29, 1867, 5 Macph. 715, 3 S.L.R. 350. Bain v. Lady Seafield, July 15, 1887, 14 R. 939, 24 S.L.R. 662, relied on by the other side, was a special case in which a party was attempting to reduce his own contract.

Argued for the respondents—The lease as a lease of salmon-fishings was binding on the succeeding heir of entail. Salmon fishing was a separate heritable subject, not like shootings or other fishings a personal privilege— Pollock, Gilmour, & Company v. Harvey, June 5, 1828, 6 S. 913; Leith v. Leith, June 10, 1862, 24 D. 1059, at p. 1065. The right of salmon-fishing therefore was included in the words “lands, estates, or heritages” in section 1 of the Rosebery Act (quoted in rubric); Ersk. ii. 6, 27. If, then, an ordinary lease of salmon fishings for commercial purposes would be within the powers of an heir of entail, the fact that the object of the lease here was rather sporting than commercial made no difference. It did not matter what the motives of the lessee were, all that the heir of entail was concerned with was that the rent should be fair. That was a question of proof. On a fair reading of the lease it was a lease for twenty-one years, not a series of leases. (2) Admitting that the trout-fishing was not within the expression “lands, estates, or heritages” in the Rosebery Act, it was also not within the term “lands and estates” in the Act 1685, c. 22, by which entails were established. If so, a lease of trout-fishings was not a contravention of the fetters of the entail. What right then had the pursuer to challenge it? A singular successor might not be bound by such a lease, but an heir of entail was not a singular successor; he represented his predecessor in everything not covered by the prohibitions of the entail— Earl of

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Fife's Trustees v. Wilson, December 14, 1859, 22 D. 191, at p. 197–8, per Lord Ardmillan, Ordinary. (3) Taking the case on the assumption that the lease was ultra vires so far as it let trout-fishings, the respondents were prepared to renounce any claim in this respect. To allow this was not to make a new contract; it was merely a renunciation on the part of the lessees of a portion of their rights under the contract. It could not make a lease invalid that the lessees did not choose to insist on all the rights which it conferred upon them. If a lease was granted for more than the period allowed by the Rosebery Act, it would be good for the period allowed by that Act— Mordaunt v. Innes, March 9, 1819, F.C., per Lord Glenlee ( affd. 1 Shaw's App. 169); Vans Agnew v. Macniven, June 23, 1813, F.C. The principle that a lease by an heir of entail which was partly ultra vires might be good so far as intra vires, had been recognised in Bain v. Lady Seafield, July 15, 1887, 14 R. 939, 24 S.L.R. 662, which was a direct authority in the present case. The same reasoning applied to the position of the salmon-fishings let to Mrs Blair. If that was ultra vires the respondents were entitled to renounce that part of the lease.

While the case was at avizandum the defenders and respondents tendered a minute, by which they renounced their right to the trout-fishing without any reservation of a right of relief, and also renounced their rights to the portion of the salmon-fishings let to Mrs Blair. The pursuer objected to this minute being received, and the Court refused to receive it.

At advising—