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In a process, at the instance of an heritor, possessed of a salmon fishing in a river, against an inferior heritor, for regulating his cruive and cruive-dyke, particularly that he should observe the Saturday's slap, that the hecks of his cruives should be three inches wide, &c. the Lord Ordinary, after finding the defender bound to observe the statutory regulations, with respect to cruives, declared, that the defender shall be obliged to observe these regulations, under the penalty of L. 50 Sterling.
In a reclaiming petition it was urged for the defender, That, as the law has imposed no penalty for contravening these regulations, the Court can impose none; and that the pursuer must be satisfied to sue for damages upon contravention. It was answered, That, though damage must follow the contravention, it is beyond the reach of art to ascertain the extent of the damage; and therefore, there is no other method to enforce such regulations but the annexing a penalty. This, indeed, is ordinarily done by the legislature. But if this remedy be neglected, it ought to be supplied by the Sovereign Court of Equity, in order to make the law effectual; for we cannot suppose a legislature would intend such an absurdity, as to enact a regulation, and yet leave people at liberty to transgress it at pleasure.
“The Lords unanimously adhered.”
Fol. Dic. v. 3. p. 342. Sel. Dec. No. 207. p. 274.
*** This judgment was reversed upon appeal, but by consent of parties.
