of the Fishery Board for Scotland. 



73 



tenure, or as a means of conveyancing, but that the peculiar Scots law 

 of salmon fishings has not been thereby made applicable to those parts 

 of Orkney only which have been feudalised. 



If in Scotland it required feudal custom to render that regale, and to 

 appropriate it to the sovereign, which is naturally a part and pertinent 

 of land, and as such would naturally go to the vassal by his charter 

 (Erskine, II. 6, 13 and 15), where there is no such feudal custom such 

 natural part and pertinent must, I think, remain a part and pertinent, 

 as apparently it does in other countries than Scotland. 



I do not ignore the fact that in some grants the Crown has expressly 

 included fishings. But I cannot in this, which was doubtless the act of 

 the Scottish conveyancer, find proof that the feudal customs of Orkney 

 had raised these fishings into a separate tenement and jus regale, or that 

 had these words not occurred in the charters the Crown could have 

 prevented, by process of law, its vassals taking salmon, within the bounds 

 of their lands. 



It is, I think, sufficient proof that no such custom has arisen, even in 

 those parts of Orkney where title has been feudalised, that no instance 

 has been given by the Crown, where during the four centuries and a 

 half that Orkney has been under its sway the Crown has vindicated its 

 alleged right. The Crown does not allege that it has fished or let fishings, 

 or has interfered to prevent those not deriving right from it from fish- 

 ing. It is in vain, therefore, I think, to contend that the feudal custom 

 of Scotland has become that of Orkney. 



In fact one, and probably the most potent, reason for the growth of 

 the custom in Scotland, viz., the value of the fishings, has not existed 

 in Orkney. The fishings have been of little or no value hitherto, and 

 the present is the first known assertion of the alleged right on the part 

 of the Crown. 



I have abstained from referring to the defender's titles, though they 

 illustrate the situation, as to do so is unnecessary for my judgment. 



I shall sustain the second and fourth pleas for the defender and 

 assoilzie him from the conclusions of the Summons, with expenses. — 8th 

 April 1907. 



FROM " THE SCOTS LAW TIMES " — REPORTS Vol. 15. 

 Parts 52 and 53. 



B. 



HIGH COURT OF JUSTICIARY. 

 (Full Bench.) 



(The Lord Justice-General, The Lord Justice- Clerk, Lords M l Laren, 

 Kinnear, Stormonth- Darling, Low, and Ardwall.) 



Middleton v. Tough. 



Stated case. 



This was an appeal against a judgment of the Sheriff-Substitute at 

 Tain (Hay Mac Watt) refusing to convict the respondent on a complaint 

 which charged 



"That Mrs Margaret Anderson Tough, widow, residing in Portma- 

 homack, in the County of Ross and Cromarty, occupier of the Geanies 

 Salmon Fishery in the parish of Tarbat and the said county of Ross and 



