102 .SALMON -FISHERY OF SCOTLAND. 



destructive engines. We think, that before the present able 

 ; and enlightened judge, who presides in the Court of Appeal, 

 they would have every chance of success, notwithstanding the 

 decision in the Kintore case. In one of the stages of the Tay 

 case, the eminent judge who then sat on the woolsack said, 

 that "he was not prepared to say, even if the case could not be 

 distinguished from the former one, it would not be carrying the 

 matter a great deal too far to say that, from what might be 

 stated on the statutes, a different view might not be taken in 

 this case."* 



We will even go further, and state our conviction, that if 

 rthe Kintore case itself were brought again into the Court of 

 ;Appeal, at the instance of an heritor who had not been a party 

 in the former case, a different judgment would be obtained. 

 The judgment of the Court of Session in that case, affirmed in 

 the Court of Appeal, was founded upon a construction of the 

 statutes not consistent with common sense, as has been already 

 fully shown viz. that " Waters where the tide flows and ebbs, 

 and where the fry of any fish of the sea, or of fresh water, or 

 the fry of all fishes, are destroyed," only meant rivers, or fresh 

 waters, where the fry of sea fishes, or of all fishes, are never, 

 and can never, be found ; and, further, that salt water means 

 fresh water and within flood-mark of the SEA only the lower 

 part of a river all of which is, on the very face of it, downright 

 absolute nonsense; and as nonsense CANNOT be law, nor law be 

 founded in nonsense, particularly when the statutes are excel- 

 lent sense in the natural construction of the words it follows 

 that the judgment cannot be held to be a valid one, nor in any 

 degree influence that in any other case which may be brought 

 forward, 



* March 26, 1805. 



