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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duchess of Sutherland v Gilchrist [1837] CS 16_237b (15 December 1837) URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0237b.html Cite as: [1837] CS 16_237b |
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Page: 237↓
Subject_Salmon Fishing.—
A tenant of salmon fishings having been ordered by the Lord Ordinary to keep an account of the number and weight of the salmon fished by him during the dependence of a process thereanent to which he was a party—the Court refused to ordain him to lodge a copy of the account in process, while the cause was still pending, without a specific allegation of such account being improperly kept.
In a process regarding a right of salmon fishing in the Frith of Dornoch, the Lord Ordinary, on the motion of the suspenders, in February 1837, being the commencement of the fishing season, ordered the respondent Murray, tenant of the fishings in question, to keep an account of the number and weight of the salmon fished by him during the dependence. of the process. In the beginning of December of the same year, the suspenders stated in a minute that they “had reason to believe that no accurate account had been kept by the respondents, or either of them, of the fish caught in their stake-nets during the last fishing season, and therefore craved the Lord Ordinary to appoint them to lodge in process a copy of such account as they have kept, that the suspenders may have an opportunity of testing its accuracy, while the persons who were employed about the fishery are to be found.”
To this it was answered, that the allegation contained in the minute
was unwarranted, and that no precedent could be cited for the inspection craved, while strong reasons existed why the account referred to should not be made patent to any one who might choose to look into the process. The Lord Ordinary reported the matter, along with the subjoined note. *
Anderson, for the suspenders, stated at the bar that their only anxiety was to know that the account was fairly kept, a report to the contrary having reached them; and referred to the case of the Magistrates of Dingwall, in which the Court had, under similar circumstances, remitted to the Depute-Advocate on circuit to examine the account.
Anderson.—We are refused all access to the accounts.
A. M'Neill, for the respondents, stated that the tenant was ready to aver upon oath at the bar that the account was properly kept; and farther, that he had himself seen it, and could speak to its being so.
The Court refused the application.
Solicitors: W. Mackenzie, W.S.— Inglis and Donald, W. S.—Agents.
_________________ Footnote _________________
* “As the order to keep an account may be current for years to come, the Lord Ordinary is inclined to think, that the pursuer is entitled to have reasonable satisfaction that it is actually kept in a correct and regular manner; at the same time, it might be hard, for the reasons stated in the answers, to compel the defenders to make an unreserved disclosure of the actual produce of their fishings, on a mere general allegation that there is reason to suspect that the account has not been kept regularly. What he was inclined to do was, to appoint some respectable person to inspect the account, and to inquire as to the way in which it has been kept, and to report whether it appears to have been made up diligently and fairly. Something of this kind, he understands, was done in a similar case of consent. But as the parties could refer to no proper precedent, though the cases in which such accounts have been ordered to be kept are now very numerous, he thought it better to report the point at once to the Court for their advice and instructions.”
