28 
Appendices to Tenth Annual Report 
Seven judges were on the bench, and their decision was unanimous and 
must be held as finally fixing the law on the subject. The case was 
that of Irving and others v. Phyn, and the decision of the Court w r as to 
the effect that the provisions of the statute and of the bye-law 
(Schedule D), regulating the observance of the weekly close time by 
stake and bag-nets, are absolute and specific, and do not admit of con- 
struction ; so that no other 36 hours than those between six o'clock on 
Saturday night and six o'clock on Monday morning will satisfy the 
requirements of the statute and relative bye-law. This case reverses 
the decision in Osborne v. Anderson, in which it was held that, under 
certain circumstances, a tidal close time was allowable. Lord Adam, 
who delivered the leading judgment, said :— ' The contravention in 
' question took place in this respect, that these nets were not put out of 
• fishing order earlier than eight o'clock on the Saturday night, the con- 
' tention on the part of the respondent being that, upon a sound con- 
' struction of this clause, they were bound to have been put out of fishing 
' order at six o'clock. The answer to that was that the state of the tide 
' at six p.m. was such that the nets could not be put out of fishing order. 
' He thought the words of the statute were as clear as words could be 
' when it was enacted that the weekly close time should continue from 
' the hour of six o'clock on Saturday night to six o'clock on Monday 
' morning. He did not think the requirements of the section could be 
' met by adopting any other hours than those stated, and, indeed, that 
'the language of the section was not" capable of construction. The 
' operation of that might be, as apparently it was in some cases, to 
' operate so as that it should continue longer, but still the Act was quite 
' clear in saying that the close time should continue during that time. 
' He did not think the Court was entitled to consider whether or no 
' difficulties might arise. In his opinion, the Act was not open to 
' construction, and, notwithstanding the case of Osborne, which had 
' been quoted, and which he thought was wrongly decided, the sound 
' construction of the Act of 1862 was that the close time should run from 
' six p.m. of Saturday to 6 a.m. of Monday.' 
Artificial On the 19th of November last, by direction of the Fishery Board, I 
Obstruction me t Mr MacGregor, Superintendent of the Spey District Board, at 
Truim ^ YeY Kingussie, with the view of inspecting an alleged illegal artificial obstruc- 
tion in the bed of the Truim, an important spawning tributary of the Spey. 
The Truim rises in the Grampians, near the Perthshire border, at a 
height of 2100 feet above the level of the sea, and then runs 15 J miles 
north-northeast, till, after a descent of 1280 feet, it falls into the Spey 
at Invernahaven, 6 miles southwest of Kingussie. 
After leaving Kingussie, we drove to Truim Bridge, and then walked 
up the right bank of the Truim till we reached the obstruction complained 
of by the Spey District Board. This is situated about half-way between 
the falls of the Truim and the junction of the Truim and the Spey. It 
consists of a pretty solidly built artificial dam, nearly 6 feet high, on the 
down-stream face, beginning on the Belleville, or right bank of the Truim, 
and extending 43 feet across the stream towards the Glen truim or left 
bank. This dam has the effect of deepening the pool above, and creating 
a pool and a lie for salmon below it, from which they may easily be taken 
out by fair means or foul. At the Glentruim end of the dam there are 
natural rocks in the channel ; and between these rocks and the left bank 
of the river there is a narrow and comparatively shallow stream, about 12 
