of the Fishery Board for Scotland. 



75 



the upper, and that they should be rounded to a semicircle, both at the 

 upper edge and the lower. 



Bye-law V. lays down that the bars of the in scales shall not be of 

 larger dimensions than the hecks, nor less than two inches apart. 



This is a matter not dealt with by the authorities. 



Bye-law VI. lays down the length of the inscales, and the nearness to 

 which they may approach each other. 



There seems to be no authority for this either ; but, in Grant v. Duke 

 of Gordon, it was found that the inscales behoved to be placed at the 

 extremities of the cruive box, and to afford an entry into the cruives 

 equal in width to the side of the cruive box next the sea. 



Bye-law VII. provides that no net or other contrivance shall be placed 

 over any cruive, nor any device employed to prevent or scare fish from 

 passing through. It, however, allows a cloth or blind to be placed over 

 the cruive while the fish are being taken out. 



The prohibition in this bye-law is quite in accordance with the spirit of 

 the statutes and the decisions in Carnegy v. Magistrates of Brechin (1704, 

 Morison 14,283), and Halkerton v. Scott. 



Bye-law No. VIII. provides that no cruive shall be so inclosed or 

 covered as to prevent duly authorised persons inspecting it. 



Bye-law IX. provides that no cruive shall be so altered as to create a 

 greater obstruction to the free passage of fish than at present exists. 



These bye-laws are all moderate, are quite in the spirit of the Acts, and 

 are on the lines of judicial decisions, with the possible exception of the 

 last. They do not interfere with the privileges of the owners of cruives, 

 beyond putting them to some slight inconvenience and additional expense, 

 and making them conform to what was practically the former law. But 

 the last bye-law goes further than this. It is true that in many of the 

 decisions parties were prevented from altering the construction of their 

 cruives and dykes, — as, for instance, in the case of Halkerton v. Scott, 

 in which Scott having reduced his cruives to three was made to restore 

 them to the original number of seven, — but this bye-law would prevent 

 a man who had his hecks four inches wide from narrowing them to 

 three. It may thus infringe the qualification imposed by the Act, but, 

 on the other hand, the owners may not have been acting within their 

 rights, and this bye-law may prevent parties getting benefit from the 

 other bye-laws, if these should be held to supersede and now to compose 

 the whole law on the construction of cruives, even though they do not 

 deal with all the points that are dealt with in the cases. 



On comparing the bye-laws with the statutes and the case law, it is found 

 that there are few points with which they do not deal, with the important 

 exception that they are entirely silent on the question of construction of 

 the cruive dykes. This possibly arises from no mention of the dykes in 

 the powers given to the Commissioners in the 1862 Act ; but as the con- 

 struction of the dykes is a matter on which the Secretary for Scotland 

 can alter the regulations in virtue of the 1868 Act, it may be of import- 

 ance to see how the law stands on this subject. 



In the case of the Heritors of Don v. Town of Aberdeen (1667), it was 

 pleaded that the cruives ought to be no higher than the water in its 

 ordinary course neither in time of flood nor of drought, and that the 

 dyke should not be built perpendicular, but sloping from the ground to 

 the top \ but the Court held that, as there was no particular law as to the 

 height of cruives, and these parties had suffered the others to enjoy the 

 cruives above 40 years, the same should be, uti possidebantur, no higher 

 than the old cruives. 



In the case of Barclay v. Scott in 1684, the defender's cruive dyke was 

 ordered to be an ell and a half above the water as it runs in an 



