Archibald Horne, Judicial Factor, on Cromarty, and Colin McKenzie of Newhall, Appellants. - Sir F. Pollock-Pemberton; The Honourable Mrs. Maria Hay Mackenzie of Cromarty and Captain Hugh Munro, her Tacksman, Respondents. - Attorney General (Campbell)-Buchanan
| Jurisdiction | England & Wales |
| Judgment Date | 26 August 1839 |
| Date | 26 August 1839 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 365
APPEAL FROM THE COURT OF SESSION, SCOTLAND.
Mews' Dig. vii. 111; S.C. 6 Cl. and F. 628. Distinguished in Reece v. Miller, 1882, 8 Q.B.D. 631.
Salmon Fishing - Statutes 1424, c. 11, etc. - Stake. Nets - Evidence.
HORNE V. MACKENZIE [1839] MACLEAN & ROBINSON, 977 [977] APPEAL FROM THE COURT OF SESSION, SCOTLAND. ARCHIBALD HORNE, Judicial Factor, on Cromarty, and COLIN M'KENZIE of Newhall, Appellants.*-Sir F. Pollock-Pemberton ; The Honourable Mrs. MARIA HAY MACKENZIE of Cromarty and Captain HUGH MUNRO, her Tacksman, Respondents.-Attorney General (Campbell)-Buchanan [26th August 1839]. [Mews' Dig. vii. Ill; S.C. 6 Cl. and F. 628. Distinguished in Ree.ce. v. Miller, 1882, 8 Q.B.D. 631.] Salmon Fishing-Statutes 1424, c. 11, etc.-Stake. Nets-Evidence.-At the trial of an issue as to whether certain stake nets and other engines were placed in situations prohibited by the statutes regulating the salmon fisheries, the judge in the course of his direction to the jury, after defining estuaries as spaces between the strictly proper river and the strictly proper sea, the waters of which were partly salt and partly fresh, proceeded thus :-" The mere name is of little importance. The thing to be looked to is the fact of the absence or of the prevalence of the fresh water, though strongly impregnated by salt. Now, where this fresh water prevails, though in the estuary, these structures are illegal." The Court of Session disallowed a bill of exceptions to the [978] direction. The House of Lords reversed this judgment, and remitted the cause with directions to allow the bill of exceptions, and grant a new trial. Question raised,-Whether it was matter for exception that a witness had been allowed during his examination to use, for the purpose of reference, a printed copy of a report, with certain jottings and calculations recently made thereon, relative to the subject of his testimony, which report he had prepared on the employment of the party adducing him as a witness:-observed, per L. C.- It is clear that for some purpose at least the witness was at liberty to refer to the paper he produced, and that a bill of exceptions could not have been supported on that ground. By a statute of Robert I., A.D. 1318, c. 12, it is enacted thus:-" Item ordinatum est et assensum, quod omnes illi qui habent croas, vel piscarias, vel stagna aut molen-dina in aquis ubi ascendit mare et se retrahit, et ubi salmunculi vel smolti seu fria alterius generis piscium maris vel aquae dulcis descendunt et ascendunt, tales croae et machinae infrapositae sint ad minus de mensura duorum pollicum in longitudiiie et trium pollicum in latitudine, ita quod nulla, fria piscium impediatur ascendendo vel descendendo, secundum quod libere possint ascendere et descendere ubique." Another statute, in the reign of James I., 1424, c. 12, enacts,-" Item, It is ordanyt that all crufis and yairs, set in f resche waters quhair the sea fillis and ebbs, the quhilk destroys the fry of all fisches, be destroyt and put away for three yeirs to cum." Another statute, in the reign of James III., 1469, c. 87, enacts,-" Item, for the multiplication of fish, [979] salmond, grilsis, and trowtes, quhilk are destroyed by cowpes, narrow messes, nettes, prynes, set in rivers that hes course to the sea, within the flude mark of the sea, it is advised in this instant parliament, that all sic cowpes and prynes be destroyed and put away for three ziers." Another statute, in the reign of James IV., 1488, c. 13, enacts,-" It is statute and ordained, that all cruffis and fisch-dammys that ar within salt watyrs quhar the sey ebbs and flows, be utterly destroyed and put down, alswell thai belongis to our soveregn lord, as utheris throw all the realme. And as anent the cruiffis in fresche waters, that they be of sic largnes and sic days keepit as is containit in the actis and statutis maid thereupon of befor." Another statute, in the reign of Queen Mary, 1563, c. 3, ratifies the preceding statute, with the following addition:-"That is to say, that all cruives and yairs that ar set of late upon saunds and schauldes far within the water where they were not of before, that they be incontinent, tane doun, and be put away, and the remanent " *Rep. 161)., B., and M., 1286. 365 MACLEAN & ROBINSON, 980 HOENE V. MACKENZIE [1839] cruives that ar set and put upon the water sandis to stand still quhil the first day of October next to cum, and incontinent after the said first day to be destroyed and put away for ever." In 1828 the respondent, as proprietrix of salmon fishings in the river Conon, and her tacksman, Captain Hugh Munro of Teaninich, applied to the Court of Session, by bill of suspension and interdict, against several proprietors of fishings situated to the eastward of her fishings, on the ground, that they were fishing [980] illegally within the locality described by the statutes above recited. In support of this application it was averred, that the whole expanse of water between a point at or near the town of Dingwall and the two great headlands called the Sutors, which abut upon the ocean and form the entrance to what is known as the Frith of Cromarty, was subject to the prohibitions in the said statutes. The application was opposed by Mr. Archibald Home, accountant in Edinburgh, judicial factor on the estate of Cromarty, situated near the Sutors; and also by M'Leod of Cadboll, Mackenzie of Newhall, and others whose fishings are situated between the Cromarty fishings and those of the respondent. By these parties it was contended, that all the water below the line of lowest ebb tide beyond which the sea never recedes, whatever shape or form the contiguous coast might assume, was excluded from the operation of the prohibitions aforesaid. The bill of suspension was passed; and a record having been made up, issues were adjusted for all the parties in a corresponding form, but it was agreed that the issue as to the Cromarty fishings should be held as the issue for all the others, mutatis mutandis, and that their interests respectively should be determined by the result of that issue. The following accordingly was the issue sent to trial, viz. " Whether the defender, Mr. Home, or his predecessors in office, has or have wrongfully fished for salmon in the Frith of Cromarty, opposite to the lands and estate of Cromarty and others, during the years 1824, 1825, 1826, 1827, and 1828, or any part [981] thereof, by means of stake nets, bag nets, yairs, or other engines, placed in situations prohibited by statute? " The affirmative of the issue was with the respondents, the pursuers of the action. In the course of the trial a witness for the respondents, who had been employed to make a survey of the subjects in dispute, proposed to refer to a printed paper purporting to be a report of his survey, and containing also certain manuscript jottings on the margin. This was objected to by the appellants, but the objection was overruled, and the examination proceeded. After a variety of evidence adduced by both parties, the judge directed the jury in point of law, and a verdict was returned for the respondents. The above ruling of the judge in respect to the evidence, and certain parts of his direction to the jury in point of law, were then made the subject of a bill of exceptions. The first ground of exception was thus set forth in the bill:-" 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 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, [982] with a view 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 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 to 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 Frith 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 Buchanan ought not, in giving his testimony, to be allowed to have the 366 HORNE V. MACKENZIE [1839] MACLEAN & ROBINSON, 983 said paper and jottings thereon before him, or to refer thereto, and that such test! mony so given could not be received as legal and competent evidence." The direction of the judge in point of law was thus set forth in the bill of exceptions : -" 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.' " [983] " It may naturally occur to you as odd, that a question so much...
To continue reading
Request your trial