THE DUKE OF NORTHUMBERLAND & Ors, Proprietors of Salmon Fishings in the River Tay, v ALEXANDER HARRIS and JOHN BELL (Court of Session)

The proprietors of salmon-fishings in the river Tay presented a petition and complaint, for breach of interdict, against Harris and Bell, the tacksmen of the fishings of St Fort and Scotscraig, which was dated on the 1 July 1831. On the 9th of that month the Court ‘granted warrant of service in common form,’ and ordained the respondents to give in written answers ‘by the first box-day of the ensuing vacation; and remitted to the Lord Ordinary to receive the same, and to proceed in terms of the act of Parliament.’

The first box-day in that vacation fell on the 1st of September. No day being fixed for service of the petition and complaint, the complainers neglected to do so till the 27th of August, some communing having been held in the meantime with the respondents on the subject; but on the 25th of August, two days previous to the regular service, the agents for the complainer intimated to the respondents a formal consent to prorogate the time for giving in answers till the second box-day, being the 29th day of September.

The respondents lodged their answers on the last-mentioned day, under protest, that by doing so they should not be held to have departed from the objection to the competency of the service.

The Lord Ordinary not having authority to decide such causes, took it to report on cases, in terms of the statute.

The complainers pleaded —That the respondents had suffered no prejudice by the delay of service, as it was competent to the complainers, who were the only parties interested, to prorogate the time for giving in answers.