of the Fishery Board for Scotland. 



405 



season, and that the white fish captured by the same nets is very trifling both 

 in extent and value. The defenders, on the other hand, give and lead 

 evidence to the effect that the white fish is plentiful, is captured in compara- 

 tively large quantities, and that the salmon and fish of the salmon kind 

 captured are comparatively few in number. I accept the evidence for the 

 pursuers as the more correct view of the matter. The evidence adduced by 

 them is that of persons, chiefly police constables, who speak from personal 

 knowledge and observation, fortified by notes made at the time of their 

 observations, and at the time reported to their superiors. They have no 

 interest, so far as I can discover (and none was suggested by the defenders), 

 to mis-state or exaggerate the result of their examination of the nets in 

 question. That there may have been a mistake made either in their observa- 

 tion or in the writing out of their reports is, oi course, possible. But I take 

 their statement as to the number of salmon and fish of the salmon kind 

 caught in these nets to be substantially correct. The defenders and their 

 witnesses (fishers like themselves) are interested, and have an obvious 

 motive for minimising the number of salmon caught, for on that (in one view 

 of the case) depends whether they are to be allowed to continue the use of 

 the nets. Further, they all speak from memory, having kept no note which 

 can now be produced of the salmon, or fish of the salmon kind, captured by 

 their nets. They also, in my opinion, undoubtedly exaggerate the quantity and 

 value of the white fish taken by their nets, their motive for that being again 

 obvious. The evidence given as to the capture of white fish by the defender 

 Ferguson struck me as being very unsatisfactory, and any value to be put on 

 his evidence is seriously damaged when that evidence is compared with his 

 returns to the Fishery Board. I am prepared to accept it as proved that the 

 Blackshaw Bank is fairly good feeding ground for flounders and other white 

 fish, and that such fish, especially flounders, are to be found there. But I am 

 satisfied that if nothing was captured on that bank except the white fish to be 

 found there the whole nets would soon be discontinued, indeed would have been 

 discontinued some time ago. I think also that the purpose for which the nets 

 are erected and used is to catch salmon, and not white fish. Mr Young says : — 

 ' They (the nets) can and do take flounders, but that does not suggest itself to 

 ' me as the reason of their existence. I think it is the ostensible reason of 

 ' their existence ; but the real reason is to take salmon. That is a thing of 

 ' which I am convinced from my examination of them. If I were putting 

 ' down salmon stake-nets on Blackshaw Bank, and close to the channel of the 

 ' Nith, I should place them precisely in the same position as that occupied by 

 ' the paidle-nets.' This view is corroborated by the fishermen themselves. 

 It appears that the site for the nets of the respective fishermen is obtained by 

 their drawing lots for the choice. And it is clear that the choice is influenced 

 by the fitness of the locality for the capture of salmon, and not white fish. 

 Thus the witness Fleming (at one time a fisherman, and now a police con- 

 stable), says : — ' In choosing the sites of our nets, my neighbours and I drew 

 ' lots for the best places. We were anxious to get a nice clean bank and a 

 ' gutter from the foreshore, so that there would be something to gather the fish 

 ' into the net. Our anxiety was not affected by the white fish we could get.' 

 A statement so frank and explicit as that could hardly be expected from any 

 of the present fishermen. But it is practically admitted by the defender Fer- 

 guson and by James Curran. Nor is it a matter for surprise that this should 

 be so, because the white fish captured on Blackshaw Bank would never repay 

 the fisherman for his expense and labour. He could not make a livelihood 

 out of the white fish. I am of opinion, therefore — (1) that the nets in question 

 are placed on the River Nith and estuary thereof, and not in the waters of the 

 Solway ; (2) that being stake-nets they are illegal in the position in which 

 they are placed ; (3) that the nets are erected ani used for the capture of 



