Scottish Court of Session Decisions

The Entail Powers Act (Rosebery Act) 1836 (6 and 7 Will. IV, cap. 42), section 1, enacts—“… It shall be lawful for the respective heirs of entail in possession to grant tacks of any parts of the lands, estates, or heritages therein contained, for the fair rent of such lands or heritages at the period of letting … and … for any period not exceeding twenty-one years:

Provided always, that nothing herein contained shall authorise any heir of entail in possession of any entailed lands, estates, or heritages, to take any grassum or valuable consideration other than the tack duty or rent for granting any tack.”

The testamentary trustees of the fourth Lord Abinger of Inverlochy Castle, Inverness-shire, first parties, and Captain Donald Walker Cameron of Lochiel, second party, brought a Special Case with regard to a minute of agreement between Donald Cameron of Lochiel, the then heir of entail in possession of Lochiel, and the second parties' predecessor therein, and the third Lord Abinger, then heir of entail in possession of Inverlochy, dated 18th May and 8th November 1864.

The minute of agreement was—“The first party agrees to let and hereby lets to the second party and his heirs and assignees, and that for the space of nineteen years from and after the commencement of the salmon fishing season in the year 1864, the sole right of fishing and taking salmon and other fish on these portions of the river Lochy, and also in the salt water of Lochiel and Lochlinnhe, belonging to the first party, for which causes, and on the other part, the second party agrees to pay to the first party, and that at the term of Whitsunday yearly, beginning the first term's payment at Whitsunday 1864 for season 1864, the sum of £80 sterling of yearly rent, and the next term's payment at Whitsunday 1865, and so forth yearly during the currency of this lease, and also agrees to let, as he hereby lets, to the first party, and the heirs succeeding to him in the entailed lands and estate of Lochiel, and that for the foresaid period of nineteen years, the sole right of fishing and taking salmon or other fish in Loch Arkaig and all streams flowing into it, also in the river Arkaig to its junction with Loch Lochy, belonging to the second party, it being expressly understood that the said first party and his foresaids shall use no cruives or fixed engines on any of the waters thereby let to him on any account, nor shall he or they use any nets except for his or their own amusement, and he or they shall be bound not to sell any fish taken or killed in the said waters: But declaring that notwithstanding the limitation of the duration of this lease to the term of nineteen years from and after the commencement of the salmon fishing season in the year 1864, it is the understanding of the parties, and is hereby agreed, that it shall be in the power of either of them during their joint lives, but not after the death of either of them, to renew the lease from year to year, so that the same shall have nineteen years to run from and after the commencement of the salmon fishing season current at or immediately preceding the death of the predeceasor of the said parties, and it is hereby provided and declared that the lease hereby constituted shall be held to have been renewed from year to year accordingly aye and until a minute shall be endorsed upon this lease and signed by both the parties hereto to the effect that the power of renewal hereby conferred shall no longer be exercised, and that the lease is to terminate at the end of nineteen years from and after the commencement of the salmon fishing season then current at or immediately preceding the date of said minute. It is further agreed between the parties that should the second party or any authorised person acting for him place any cruive or permanent obstruction at or above the Falls of Muccomer for the purpose of stopping the fish from ascending into the Arkaig after the first of. June in any year, and should such obstruction not be removed, the first party shall then have right to resile from this lease on the expiry of one year from the end of the fishing season during which said cruive or permanent obstruction shall have been placed as aforesaid, provided always that the said party shall give one year's notice in writing to the other party of his intention to do so; And lastly, both parties bind and oblige themselves to enter into a formal and valid lease in terms of this agreement, and to renew the same from time to time upon the requisition of either party.”

The case stated—“Possession of the subjects let duly followed on said agreement, and continued unchallenged until the death of the late Lochiel as after mentioned. At the date of said minute of agreement both Lochiel and Lord Abinger were heirs of entail in possession of their

respective estates (3) In the year

1892 the third Lord Abinger died and was succeeded by his son the fourth Lord Abinger, who thereafter disentailed his Scottish estates. The fourth Lord Abinger died on 11th December 1903, leaving a trust-disposition and settlement dated 27th November 1899, and relative codicil dated 30th November 1899. His trustees are the present holders of the Scottish estates, and are the first parties to this case. (4) The late Lochiel died on 30th November 1905, and was succeeded as heir of entail by his son Captain Donald Walter Cameron, now of Lochiel, who is also residuary legatee under his father's trust settlement, dated 9th November, and recorded in the Books of Council and Session 12th December 1905. The said Donald Walter Cameron of Lochiel is the second party hereto.”

The questions of law were—“(1) Does the said minute of agreement constitute a good and valid lease of the subjects in question binding upon the second party as heir of entail? In the event of the previous question being answered in the negative—(2) Is the second party as residuary legatee of his father liable to the first parties under any implied warrandice in respect of the said minute of agreement.”

Argued for the second party—It was very doubtful whether the minute of agreement was a lease at all, but even if that difficulty were got over it did not bind the second party. (1) The minute of agreement was not a valid exercise of the powers conferred on heirs of entail by the Rosebery Act. It was therefore not binding on the second party as heir of entail— Gillespies. Riddell, 1908 S.C. 628, 45 S.L.R. 514 and (in House of Lords), November 10, 1908, 46 S.L.R. 29. It exceeded these powers in respect of duration, subject-matter, and consideration. No doubt the Rosebery Act gave power to an heir of entail to let salmon fishings for twenty-one years. But here, if the lease had not come to an end in 1883 after nineteen years, and was since that date merely from year to year, it was a lease for life and nineteen years. Again this was a lease not only of salmon fishing, which were a “heritage,” but also of trout fishing which was not. A lease of trout fishing was merely the grant of a personal privilege, and could not bind an heir of entail— Earl of Galloway v. Duke of Bedford, June 10, 1902, 4 F. 851 (Lord Kinnear at 865), 39 S.L.R. 692. Lastly, the lease was not granted for a “fair rent.” Rent consisted of money, fruits of the ground, or services—Ersk. Inst. ii, 6, 20. A right of fishing was not money, fruits of the ground, or services, nor could it be turned into money, for it implied a delectus personœ and could not be sub-let— Earl of Fife v. Wilson, November 29, 1864, 3 Macph. 323. It could not be maintained that because there was a money payment to the second party, that was sufficient to bind him, for there could not be a mutual contract where one of the parties was not bound, and Lord Abinger got no money payment, and his heir of entail could not therefore be bound. (2) The second party was not liable as his father's personal representative. There was no warrandice. Both parties knew that as they were heirs of entail the minute of agreement might not be binding. It was absurd to suggest that each warranted the other that if the lease was held to be bad they would pay damages. When a lease was granted by an heir of entail a warrandice clause was construed as binding only the grantor and his succeeding heirs— Duke of Bedford v. Earl of Galloway, July 8, 1904, 6 F. 971, 41 S.L.R. 804. This case was a fortiori, as there was no warrandice clause.

Argued for first parties—(1) The lease was good. It was a lease of salmon fishing. That was plain, as the 19 years began at the commencement of the salmon fishing season. The case of Earl of Galloway v. Duke of Bedford, June 10, 1902, 4 F. 851, 39 S.L.R. 692, was different, for there the trout fishing was a most important factor. This was therefore not a sporting lease, but was the lease of a heritage within the meaning of the Rosebery Act. Further, the lease was not for too long a period. The parties entered into a lease for 19 years at Whitsunday 1864. A year later they renounced that lease and entered into another for 19 years. And so on year by year to the death of Lord Abinger in 1892. Such a course of conduct was within the powers of heirs of entail—Queensberrv Leases, 1819, 1 Bligh. 339 (L. C. Eldon at 404). The lease therefore was for 19 years from the Whitsunday preceding Lord Abinger's death. In Lord Galloway's case ( sup. cit.) there was a series of leases; for 3 months in each year the lessor could

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resume possession. The statutory requirement of a “fair rent” had been complied with. What the Act struck at was the taking of a grassum. The ordinary case of unfair rent was where the heir in possession was taking something more than his successor would get. Here salmon fishings were exchanged for salmon fishings. These might be sublet, and were thus capable of yielding a money rent. (2) If the lease was invalid, the second party as general representative was liable in warrandice. If the view maintained by the second party on this point were correct, an heir of entail was never responsible for the title he gave. In all except a few points an heir of entail had the powers of a fee-simple proprietor, and he was not in an exceptional position as regards warrandice. There was no rule of law that warrandice was limited to the heirs of entail— Riddell's Executors, June 19, 1909, 46 S.L.R. 815. In Lord Galloway's case, 6 F. 971 (Lord Kyllachy at 978), 41 S.L.R. 804, there was a clause of warrandice which expressly limited liability to the lessor's successors in the entailed estate. If no warrandice was stated in a lease the warrandice that was implied was absolute warrandice—Prof. Bell's Lectures, vol. i, p. 215; Middleton v. Megget, November 27, 1828, 7 S. 76.