74 SALMON-FISHEKY OF SCOTLAND. 



or what lawyers term a res judicata, and though not one single 

 new argument was advanced, the Court reversed their former 

 unanimous decision, and found Houston, in his turn, entitled 

 to expenses ! 



When we saw this decision, in which it was found that the 

 interception of the fish passing on to the upper fishings gave 

 the upper heritors no title to complain, unless they could show 

 a right, on their own part, to the very spot where the fish were 

 intercepted, we were led to suppose that salmon had been con- 

 sidered as fixed to the ground, like oysters, so that, to entitle a 

 man to raise an action, he must have a right to the ground to 

 which they are fixed ; or, when the matter was declared to be 

 jus tertii to the upper heritors, that it was believed the salmon 

 fell into the rivers and upper fisheries direct from the clouds, 

 as the wise Olaus Magnus tells us the rats, or lemmings, do in 

 Lapland, and consequently that the interception of the fish in 

 the estuary could do the upper heritors no harm ; but then this 

 would be at variance with the part of the interlocutor which 

 declares that the title of the upper heritors would be good if 

 they could show that the salmon were intercepted by an illegal 

 engine, which was an admission that they were really on their 

 way to the rivers, and did not fall into them like the Lapland 

 rats of the wise Olaus Magnus. The upshot of the doctrine is, 

 that an illegal mode of fishing gives a title to pursue, but that 

 the illegal act of fishing without a right does not. Can any- 

 body understand this legal distinction between an illegal MODE 

 and an illegal ACT of fishing, as constituting a title to pursue ? 

 To us it appears very like nonsense. It is one of those niceties, 

 so very nice, as to defy common sense to comprehend it ; but 

 what shall we say of the justice of the country, when a distinc- 

 tion, which carries absurdity on the face of it, is laid hold of to 

 shelter injustice ? To defeat a title, and thus prevent a com- 

 petition of rights which could not stand a moment's hearing ? 

 It must be clear to common sense that, if a man has a title to 

 pursue for the interception of the fish by an illegal engine, 

 his title must be equally good to pursue for their interception 

 by a poacher a person without a right. It is no wonder if men 

 of plain sense exclaim, Such are the mysteries of the law ! what 



