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72 Appendices to Thirteenth Annual Report 



could be passed regulating cruives ; and, as the legislature can hardly be 

 conceived as giving a power and taking it away again in the same section, 

 it may be argued that the qualification only applies to other matters as to 

 which regulations were also allowed to be made. Such an argument 

 might possibly be considered as not going farther than the construction 

 of the Married Women's Property (Scotland) Act, 1881, adopted in the 

 case of Poe v. Paterson (10 Rettie, H.L. 73), where a provision in the 

 middle of the Act, that the Act was only to apply in the case of marriages 

 contracted' after the date of the Act, was held not to prevent the 

 subsequent sections of the statute applying to all marriages. Mr Stewart 

 in his treatise on fishing adopts this construction of the Act, holding that 

 the qualification does not qualify the regulations in regard to cruives, but 

 must be held only to qualify the regulations on other matters. Such a 

 construction, however, can only be justified if the qualification of the power 

 to issue regulations can only be read as destroying and nullifying the 

 regulations. If it is possible to allow both to have effect, then such a 

 reading must be adopted, and it would rather appear that what the 

 legislature contemplated was that the regulations might codify the existing 

 law, and generally regulate the construction and use of cruives, without 

 seriously interfering with the rights of the proprietors. Following upon 

 the power given by the Act, the Commissioners issued certain bye-laws in 

 regard to the construction and use of cruives, and it is to be regretted that 

 the effect of these regulations has never been judicially decided. A guide 

 to the proper interpretation of the statute can, however, be obtained from 

 the case of Kennedy v. Murray (1869, 7 Macph. 1001). The Commis- 

 sioners, in virtue of powers given under the same section cf the 1862 Act 

 issued regulations in regard to mill dam dykes, &c, inter alia, orderin, 

 the erection of hecks on mill lades ; and the main question in the case was, 

 whether or not the Commissioners had power to order the proprietor of 

 the mill to erect hecks at his own cost. The case was deemed of sufficient 

 importance to be submitted to seven judges, and a number of queries 

 were put to them. The two which mainly affect this subject were, 

 whether the mill proprietor had to erect the hecks at his own cost, 

 and, * assuming that additional trouble and some cost will be imposed by 

 ' the additional hecks, whether the case of the advocator, who has had 

 1 immemorial possession of the mills, is within the provision that such 

 ' regulations shall not interfere with any rights held at the time of the 

 1 passing of the Act under royal grant or charter, or possessed for time 

 1 immemorial.' 



By a majority of four to three, the Court held that the hecks had to be 

 erected at the owner's cost. The majority were Lords Deas, Benholme, 

 Neaves, and Kinloch, and the minority, the Justice Clerk (Patton), Lord 

 Cowan, and the Lord President (Inglis). On the last question, the Lord 

 President and Lord Benholme gave no opinion, but the other judges 

 answered it in the negative, though the only one who gave any grounds 

 for his answer was the Lord Justice Clerk. He said that: — ' Mere additional 

 ' inconvenience would not be a ground upon which the operation of the 

 1 Act should not hold, because there is no case in which there would not 

 1 be more or less inconvenience in the case of mills which existed for a 

 ' considerable time; and, if we were to hold otherwise, the operation of 

 ' the statute would be so hindered and tramelled as to be confined to a 

 1 limited class of cases, which I do not think would be giving fair effect 

 ' to the Act.' In the judgment it was stated that the case of the advocator 

 was not within the provision that such regulations should not interfere 

 with any right held at the passing of the Act under royal grant or charter, 

 or possessed for time immemorial. 



It will thus be seen that the case of Kennedy v. Murray tends to con- 



