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The defender reclaimed , craving the Court, either at once to sustain the defender's claim of a right to rod-fishing for salmon, or, before answer, remit to the Lord Ordinary to return to his former interlocutor, remitting the case to the Jury Roll for trial, as to the defender's possession of a fishing along the course of the river Shinn. Minutes of debate were ordered.
The next case is that of Smollet, and a more direct case upon this point cannot be figured.
A few years previous to this the same question had occurred, in an attempt by Leith of Freefield to regulate the cruive-fishings on the Don.
It is a just remark in the case for the Duke of Sutherland, that there is no notice in our writers on the law of Scotland, nor any evidence from charters, of a right of fishing salmon by rod or spear. It may not be useless to observe, that the symbols by which sasine of a salmon-fishing is given are net and coble, indicating clearly that that is the mode in which it is to be exercised. It would have been much easier to convey this right by delivering to the disponee a fishing-rod, or spear, or lister, if that mode had been recognised as the mode of using or acquiring this right.
Lord Ordinary, Mackenzie. Act. Rutherfurd, A. Anderson. Alt. Dean of Fac. (Hope,) Neaves. Wm. Mackenzie, W. S. and Sang & Adam, S. S. C. Agents. F. Clerk.
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