exercise the control, regulation, and administration of the Garvel Graving Dock as part of their statutory undertaking, and in particular the use of said graving dock by vessels resorting thereto as regards time and order of admission, and that the grant to any private firm or individual of the exclusive use of said graving dock is inconsistent and incompatible with the statutory rights and duties of the trustees on the one hand and the public, and in particular the pursuers, on the other hand, the pursuers are entitled to decree in terms of the declaratory conclusion of the summons. 2. The lease between the Trustees of the Port and Harbours of Greenock and the defenders second called libelled in the summons being, upon a sound construction of the said Greenock Port and Harbours Consolidation Act 1913, ultra vires of the trustees, the pursuers are entitled to decree of reduction in terms of the recissory conclusion of the summons." The pleas in law for the defenders were, in substance, that the lease was intra vires. Lord Hunter, as Lord Ordinary, dismissed the action, and his decision was upheld in the Inner House (First Division). From that decision this appeal was brought to your Lordships' House, and it has been twice argued. The first argument, which extended over two days-the 6th and 8th of December last

was devoted to an exhaustive examination of the Greenock Port and Harbours Consolidation Act, especially of section 109. It was urged for the appellants that the provisions of that Act did not authorise any lease by the trustees of the graving dock, while the respondents argued that the lease was intra vires. At the conclusion of the argument your Lordships took time for consideration.

While the case was under consideration Lord Atkinson called the attention of your Lordships to the existence of section 23 of the Harbour, Docks, and Piers Clauses Act 1847, which is incorporated in the Greenock Act. This section is as follows: "XXIII. The undertakers may lease or grant the use or occupation of any warehouses, buildings, wharfs, yards, cranes, machines, or other conveniences provided by them for the purposes of this or the special Act, at such rents and upon such terms and conditions as shall be agreed upon between the undertakers and the persons taking the same, provided that no such lease be granted for a longer term than three years." This section was not printed in the appendix, and attention had not been called to it by either side during the argument. Your Lordships directed that the parties should be invited to address to the House any argument that they thought proper as to the effect of this section, and both sides attended on the 23rd February for the purpose, the argument on this second hearing being confined to the question of the application and effect of this clause 23. appears to me to be clear beyond all question

It

fining Co.

Harbour

May 2, 1921.

that this section 23 applies to this case and that HOUSE its effect is decisive. The graving dock falls oF LORDS. within its terms, but no lease for a longer time The Glebe than three years could be granted. The clause Sugar Reputs the right to make a lease of the graving Ltd V. dock beyond question, but it also establishes Greenock that this particular lease, which is for ten years, Trs. with the provision for possible extension, is invalid. It is invalid altogether; it cannot be remodelled so as to stand good for three years. It therefore appears that the whole of the argument which was addressed to your Lordships on the 6th and 8th December last was otiose and could not have taken place if your Lordships had been aware of the existence of this section 23. I had prepared after the first argument a judgment stating the conclusion at which I had arrived as to the effect of the Greenock Act. I do not propose to read this judgment as the discovery of section 23 has rendered the question purely academic.

It appears to me that the proper course is to remit to the Court of Session with instructions to find that it is unnecessary to deal with the first conclusion of the summons, and on the second conclusion to direct reduction of the lease as contravening the provisions of section 23 of the Harbours, Docks, and Piers Clauses Act 1847.

There should, in my opinion, be no costs either in this House or in the Court of Session.

Lord Dunedin.-I concur in the opinion of my noble and learned friend the Lord Chancellor. The summons as framed asked for a declarator in general terms. I should myself have preferred to deal with that conclusion in order either to give effect to it or grant absolvitor from it. But I do not dissent from what I gather is the opinion of your Lordships that in the circumstances, the lease being bad in respect of the section in the Harbours, Docks, and Piers (Clauses) Act, it is unnecessary to dispose of that conclusion.

Now, as the summons is framed, the second reductive conclusion looks as if it were merely ancillary to the first or declaratory conclusion. The pursuers either did or did not know of the section of the Piers and Harbours Act incorporated in the special Act which prohibits leases of more than three years' duration. If they did know of it, they ought to have inserted after the first conclusion the usual words "and whether it be so declared or not," and then proceeded with the reductive conclusion; and they ought to have quoted the section in their condescendence, and framed a separate plea in law referring to it. If they did not, they are really winning this case on a plea discovered for them in this House. This disentitles them to costs.

I am therefore of opinion that the interlocutors, so far as appealed against, should be reversed, and that the case should be remitted to the

Viscount Finlay.-I am authorised to say that my noble and learned friend Lord Shaw concurs in the judgment I have delivered.

Counsel for Pursuers and Appellants, Sandeman, K.C., Gentles; Agents, Patten & Prentice, Greenock; Hugh Patten, W.S., Edinburgh; Ward, Bowie & Co., London.-Counsel for Defenders and Respondents, Sir John Simon, K.C., Macmillan, K.C., Mackay, K.C.; Agents, Neill, Clark & Murray, Greenock; Wm. B. Rainnie, S.S.C., Edinburgh; Beveridge & Co., Westminster.

FIRST DIVISION.

(The Lord President, Lords Mackenzie and Skerrington.)

25th February 1921.

4. Aitken's Trustees v. Aitken's Trustees.

Symington, Son & Co. Ltd., contractors, Glasgow, brought an action against the Larne Shipbuilding Co. Ltd., Glasgow, and four other defenders conjunctly and severally for payment of £14,000, the amount of a bill of exchange accepted by the shipbuilding company and granted by the four other defenders.

Appearance was entered for two of the four individual defenders, and thereafter the pursuers enrolled the case for the purpose of obtaining decree in absence against the remaining defenders who had failed to enter appearance.

The Court of Session Act 1868 (31 & 32 Vict. cap. 100) enacts :

Section 23. When any cause is enrolled as an undefended cause before the Lord Ordinary, the

Special Case.

Hugh James Rupert Miles and Olive Joyce Reynolds, both in pupilarity, were the eighth parties in a special case brought by the trustees of the late James Aitken of Bentonhill, Helensburgh, and others.

On 15th February, in Single Bills, counsel for the eighth parties applied in the First Division for the appointment of a curator ad litem to these parties.

Counsel referred to the cases of Macdonald's Tr. v. Medhurst, 1915 S.C. 879, and Ward v. Walker, 1920 S.C. 80.

The Court appointed a curator ad litem.

Counsel for the Eighth Parties, Hunter; Agents, Campbell & Smith, S.S.C.

A. N. S.

counsel or agent, grant decree in absence in common form in terms of the conclusions of the summons. . . . .

On 13th April 1921 the Lord Ordinary (Ashmore) in the Vacation Court refused in hoc statu to grant the motion, and continued the cause.

Lord Ashmore.-In this case the pursuers are suing a limited company and four individuals as defenders, concluding against them conjunctly and severally for payment of the sum of £14,000 contained in a bill of exchange drawn by the pursuers upon and accepted by the defenders the limited company, and guaranteed by the individual defenders conform to a letter of guarantee.

Appearance has been entered by two out of the four individual defenders, and the case has been enrolled for decree in absence against the defenders who have not entered appearance.

Under the statute (section 23 of the Court of Session Act of 1868) in the circumstances stated it is provided that the Lord Ordinary "shall" grant decree in absence in common form in terms of the conclusions of the summons. In this case, however, in which two out of the four defenders sued jointly and severally are defend

ing, the granting of decree against the other two at this stage might prove inequitable, and result in prejudice to one or more of the defenders. In that state of the facts, I do not think that I am bound at present to treat this as an undefended cause in the sense of section 23. Having regard to the nature and conclusions of the summons and the rights of the parties inter se, I am of opinion that the enrolment is premature and that in hoc statu I ought not to grant decree in absence.

Property-Real burden-Right of shooting on lands of another-Lands conveyed to A. along with "exclusive right of shooting" over certain other lands remaining in property of disponer-Disponer granting disposition of said other lands in favour of himself, his heirs and successors, declaring said right of shooting a real burden in favour of A., and binding himself and his foresaids to insert in any subsequent disposition of said lands a reservation of said right of shooting in favour of A.-The burdened lands subsequently conveyed to B. with said right of shooting declared to be a real burden on them now proprietor of said lands, from shooting over them Held that shootings cannot be conveyed as a separate tenement either by grant or as a real burden, and that

in favour of A.-A. claiming right to exclude B., who was

a right of shooting could not be made a real burden on

lauds with the effect of excluding the proprietor of the lands from shooting over them.

Mrs Mary Lucretia Phillippia Josephine Farrell or Angelo or Beckett, heritable proprietrix of the estate of Culachy, Inverness-shire, pursuer, brought an action against John Alexander Bisset, heritable proprietor of the farm and lands of Borlum, Inverness-shire, defender, for declarator (1) that the pursuer was entitled to the exclusive right of shooting game (save in so far as was provided by the Ground Game Act 1880) over the whole lands and estate of Borlum belonging to the defender, (2) that the exclusive right to shoot game over the said lands (except in so far as that right was qualified by the Ground Game Act 1880) might be lawfully exercised by the pursuer and others in her right and that she and her foresaids were entitled to free ish and entry to the said lands so far as necessary to exercise and preserve the said right of shooting, and (3) that the defender was by his heritable titles excluded from the right to shoot game over his said lands of Borlum except in so far as authorised as an occupier under the Ground Game Act 1880. The action also concluded for interdict against the defender molesting or interfering with the pursuer in the

exercise and preservation of her said right of OUTER shooting on and over the defender's said lands HOUSE. of Borlum.

Beckett v. Bisset.

The circumstances in which the action was brought are set forth in the following narrative March 31, which is taken from the opinion of the Lord Ordinary:

"On 15th May 1894 Lord Lovat disponed the estate of Culachy to Martin Kenneth Angelo, the husband of the pursuer, and his heirs and assignees. Mr Angelo died on 26th May 1912, and the pursuer as his assignee is now proprietrix of the estate. Along with the estate of Culachy Lord Lovat disponed to Mr Angelo, his heirs and assignees, the exclusive right of shooting' over certain other lands then belonging to him, among which were included the farm and lands of Borlum now belonging to the defender. In the disposition to Mr Angelo this right of shooting was declared to be a real burden affecting the lands over which it extended in so far as belonging to Lord Lovat, and Lord Lovat bound himself to grant and record a disposition of these lands in favour of himself, his heirs and successors, declaring the said rights in so far as they affected lands belonging to himself to be real burdens thereon. He further bound himself and his foresaids, should he or they at any time dispose of these lands, to insert in the dispositions and conveyances to be granted by him or them a reservation of the rights of shooting in favour of Mr Angelo and his heirs and successors, otherwise the said dispositions and conveyances to be null and void.

Lovat on the same date as the conveyance of "In implement of the above obligation Lord Culachy to Mr Angelo executed a conveyance in favour of himself of the lands over which the rights of shooting extended, including therein the lands of Borlum. In this conveyance the exclusive right of shooting in favour of Mr Angelo, his heirs and assignees, was declared to be a real lien and burden upon the lands which was appointed to be inserted or validly referred to in all future deeds of transmission. Thereafter, in May and June 1897, Lord Lovat disponed the farm and lands of Borlum to the Monks of the Abbey of St Benedict. The disposition contains a reference to the real burden constituted as above over the lands and to the shooting rights conferred on Mr Angelo. In July and August 1919 the Monks of the Abbey of St Benedict disponed the farm and lands of Borlum to the defender with and under the reservations, conditions, provisions, real liens, burdens and others so far as applicable thereto referred to' in the two dispositions by Lord Lovat in favour of himself and in favour of the Monks of the Abbey of St Benedict. The defender on acquiring possession immediately challenged the pursuer's right to shoot over the lands and proceeded to exercise the privilege himself."

1921.

"2. The pursuer, her servants, and others, in her right being entitled to have free ish and entry to the said lands of Borlum, in order to exercise and preserve her rights in a fair and sportsmanlike manner, declarator should be pronounced in terms of the second conclusion of the summons.

"3. The defender being validly deprived of all right to shoot game on and over the lands of Borlum belonging to him (excepting any statutory right to shoot ground game competent to him as occupier), and that by a real and inherent condition of his heritable title, declarator should be pronounced in terms of the third conclusion of the summons.

"4. Separatim, the said exclusive right having been validly constituted a real burden over the defender's said lands in favour of the pursuer, she is entitled to decree, in terms of the conclusions of the summons.

"5. The defender having challenged the pursuer's said rights and asserted opposing and hostile claims over his said lands of Borlum, interdict should be granted against the defender, as concluded for."

The defender pleaded, inter alia:

"2. The rights and titles founded on by the pursuer not being valid or sufficient, as in a question with the defender, to constitute in her favour a right of shooting over the lands of Borlum, the defender is entitled to be assoilzied from the conclusions of the summons.

"3. The right of shooting claimed by the pursuer not having been made a valid real burden over the defender's lands, the claim made in this action is without foundation and ought to be repelled.

"4. The defender being entitled to exercise the privilege of shooting over his own lands, decree of absolvitor ought to be pronounced."

The following authorities were founded on in the argument: Patrick v. Napier, 1867, 5 M. 683; Tailors of Aberdeen v. Coutts, 1840, 3 Ross' L.C. 269; Aboyne v. Innes, F.C. 22nd June 1813; Huntly v. Nicol, 1896, 23 R. 610; Breadalbane v. Livingstone, 1790, M. 4999; Leith v. Leith, 1862, 24 D. 1059; Stewart v. Bulloch, 1881, 8 R. 381; Lord Glasgow's Trs. v. Clark, 1889, 16 R. 545; Earl of Galloway v. Duke of Bedford, 1902, 4 F.

851.

Avizandum, 18th February 1921.

On 31st March 1921 the Lord Ordinary (Blackburn) assoilzied the defender from the conclusions of the summons.

Lord Blackburn [after the narrative quoted supra].-In the present action the pursuer asks declarator that she has an exclusive right of shooting over the lands of Borlum (save in so far as provided by the Ground Game Act 1880), which she can exercise by her servants and others in her right. In respect of this right she claims free ish and entry to the lands so far as necessary to exercise and preserve the right of shooting, and further that the defender is excluded from exercising any right of shooting over his own lands and should be interdicted from doing so.

She supports these claims on two distinct grounds, the one being that her exclusive right of shooting is effectively constituted as a real burden over the defender's lands, and the other that the defender having acquired the lands under a disposition which recognises her right to the shootings is in any event personally bound to acknowledge her right and to give effect to it.

To succeed in this action the pursuer requires, in my opinion, to establish that the right claimed is such as can properly be the subject of a real burden. If she succeeds in that I have no doubt that the real burden is properly constituted and transmitted against the defender. But if she fails it is because the grant in her favour is a mere personal obligation which, while it was undoubtedly binding on the granter and might have been made binding on his immediate disponees by personal contract between him and them, would not transmit to a singular successor in the lands. Accordingly, the defender even if he knew of the existence of the grant was also entitled to know that it did not run with the lands and would not be binding on him personally.

The attempt to deprive an owner of lands of such a purely personal privilege as the right of shooting by creating the right a real burden on the lands in favour of another is, I think, entirely novel. At all events I am not aware of any reported case dealing either with shooting or trout fishing in which such an attempt had been made. But the dicta of the learned judges who decided the well-known case of Patrick v. Napier (5 M. 683) were much founded upon at the debate as indicating that in their opinion it might be possible in this way to confer an exclusive right to trout fishings over the lands of another and thus to separate the right from the ownership of the lands. The facts of the case were that the proprietor of the Barony of Kilmun granted a feu of a small portion of the lands to Mr Napier together with the liberty and privilege of fishing in the river Echaig which was within the Barony but far removed from the feu. Thereafter Mr Napier acquired the superiority of his own feu with the privilege of fishing again expressed in the same terms. At a later date Mr Patrick acquired the Barony under a title which excepted Mr Napier's feu