Archibald Horne and Colin Mackenzie, - Appellants; the Honourable Mrs. Maria Hay Mackenzie and Captain Hugh Munro, - Respondents
| Jurisdiction | Scotland |
| Judgment Date | 26 August 1839 |
| Date | 26 August 1839 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 834
FROM THE COURT OF SESSION.
Mews' Dig. vii. 111. Distinguished on point as to meaning of "river" and "sea" in Reece v. Miller, 1882, 8 Q.B.D. 631.
APPEAL from the court of session. ARCHIBALD HORNE and COLIN MACKENZIE,-Appellants; the Honourable Mrs. MARIA HAY MACKENZIE and Captain HUGH MUNRO,-Respondents [March 14, 15; Aug. 26, 1839]. [Mews' Dig. vii. 111. Distinguished on point as to meaning of " river " and " sea " in Reece v. Miller, 1882, 8 Q.B.D. 631.] A... a surveyor, made a survey or report, which he furnished to his employers: being afterwards called as a witness, he produced a printed copy of this report, on the margin of which he had, two days before, to assist him in giving his explanations as a witness, made a few jottings. The report had been made up from his original notes, of which it was in substance, though not in words, a transcript. Held, that he might look at this printed copy of the report, to refresh his memory. Upon an issue whether certain defendants had wrongfully fished for salmon by means of stake-nets, placed in situations prohibited by statute, where the question was what was to be considered " river," and what " sea," a direction that " the thing to be looked to is the fact of the absence or the prevalence of the fresh water, though strongly impregnated with salt," is erroneous. 834 HORNE V. MACKENZIE [1839] VI CLARK & FINNELLY. The mouth of a river comprehends the whole space between the lowest ebb and the highest flood mark. The points argued in this case arose out of an action of suspension and interdict instituted by the present Kespondemts, as pursuers, against the Appel-[629]-lants, as defenders, for the purpose of putting an end to the use of stake-nets and other illegal engines in fishing salmon within the firth of Cromarty. The general question between the parties was reduced to the form of an issue, which was repeated, mutatis mutandis, in regard to each of the several defenders, and amounted to this, Whether the defenders wrongfully fished for salmon in the firth of Cromarty, by means of stake-nets, yairs, or other engines, placed in situations prohibited by the statutes.* A jury trial took place, which occupied three days, and a verdict was returned in favour of the pursuers, against all the defenders. A bill of exceptions was tendered by the defenders, as well as a motion made for a new trial. There are two exceptions taken. The first relates to a decision of the presiding Judge, by which his Lordship allowed a scientific witness for the pursuers to have before him and to refer to, in giving his evidence, a printed report made out by himself. The-second relates to the direction of the Judge, in point of law, on the whole case, in his charge to the jury. {630] The first exception arose upon the examination of the pursuers' first witness, George Buchanan, civil engineer. Mr. Buchanan had scarcely commenced giving his evidence, when the examination was interrupted by the following procedure, as set forth in the bill of exceptions : " At this stage of the examination of the said George Buchanan, the counsel learned in the law for the said defenders did object to the witness having before him a printed paper, while giving his testimony. And the witness being examined as to the said printed paper, deponed, that it was a copy of a report which he had made to the pursuers, on their employment, and on the margin of which he had, two days ago, made a few jottings. The witness stated that he had his original note-book with him, and that these jottings are not in it, though their materials are. He could, with a little time, repeat the calculations of which these jottings consist, but he happened to make them, with a vie'w to his own explanations as a witness, on the margin of the printed copy. His report is dated 1st November 1836. It is made from his original notes, but it is not a literal transcript of them; but in substance it is the same. Whereupon the said counsel for the defenders did object to the said witness being allowed, while giving his testimony, to have before him, and refer to1 the said printed paper and notes written thereon, which were not made at the time of making the survey or observations with reference to the firth of Cromarty. But the said Lord Cockburn, after looking at the said printed paper and notes, repelled the objection. Whereupon the said counsel for the said defenders did then and there except to the foresaid judgment of the said Lord Cockburn, and insisted that the said George [631] Buchanan ought not, in giving his testimony, to be allowed to have the said paper and jottings thereon before him, or to refer thereto, and that such testimony so given could not be received as legal and competent evidence." The second exception related to the charge given to the jury by the presiding Judge. * Several statutes were passed in 1424, 1427, 1429, 1469, 1477, 1488, and 1563, to prevent the use of " yairs and cruffis " in " fresh waters, where the sea flows and ebbs." The statute of 1488 ordained, that they should be destroyed " in salt waters, where the sea ebbs and flows." The Act of 1563 re-enacted the Act of 1488, with this addition, " that all cruves and yairs that are set of late upon sands and shoals far within the water, be done away." But this Act contained a proviso', declaring that it should not extend " to- the cruves and yairs being upon the waters of the Solway." In the case of Dalgleish v. The Duke of Athott (5 Dow, 282), Lord Eldon distinc'tlv declared his opinion (p. 291), that " stake-nets fell within the meaning of the word ' yairs,' used in the statutes; and he thought likewise, that there were other words in these statutes which would comprehend them as nets within the prohibitions enacted." 835 VI CLARK & FINNELLY. HORNE V. MACKENZIE [1839] The direction excepted to was in the following terms: " Now, assuming the machines to have been used, the point is, whether they were so wrongfully? There are many circumstances which might have made the use of them wrongful; but the only ground on which they can be held to have been so under these issues is, that they were placed in illegal situations. Hence the full question put to you is, whether salmon were wrongfully fished by means of these engines, ' placed in situations prohibited by law.' " It...
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