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We may be excused for here introducing a Song
written by Mr. PRATT.
Mankind are all Fish, and I'll lay you a Bet
prove that they all will come into the Net.
True Lovers are Oysters, both silent and dull;
The Poets are Spawn, but are scarce worth a drag,
A Beauty's a Flying Fish, always pursued.
Laws relating to fish.
By the Statute 3 Ed. I. c. 1. none without License shall fish in another's Vivary, (a place where fish are kept, 2 Inst. 162,) on pain of imprisonment, ransom, and double damages to the party, if he will sue; if not, the KING shall have the suit as against the Peace; and persons indicted shall be attached and distrained to appear within a month; then a second distringas to appear in six weeks; and, on default, shall be convicted and fined. And misfeasors in fish-ponds shall make amends, &c. c. 20.
By the Stat. 13 Ed. I. c. 47. and 13 Rich. II. 19. none shall take Salmon between 8th September and 11th November; nor young Salmon with engines at Mill-pools, between the middle of April and 24th June; nor with nets or engines destroy the fry of fish, on pain of having the Nets burned for the first offence, of imprisonment for a quarter of a year for the second, and of a whole year for the third.
By the Stat. 17 Rich. II. c. 9. Justices of Peace shall be conservators of the above statutes, and may appoint under conservators, and at Sessions inquire of defaulters, &c.
By the Stat. 1 Eliz. 17. none shall take the young fry or spawn of fish; nor kill Pike under ten, Salmon under sixteen, Trout under eight, or Barbel under twelve inches; nor fish, unless for smelts, loaches, minnows, gudgeons, or eels, but with an angle, or a net of a mesh of two inches and a half, on pain of 201. of which Justices of Peace may inquire if no presentment in the Leet within a year.
By 22 and 23 Car. II. c. 25. a person convicted by confession of one witness, within a month after the offence, before any Justice of Peace, of taking fish in a river, pond, &c. or assisting thereto, without consent of the Lord, or the Owner, shall pay to the party not exceeding treble damage, and to the poor not exceeding ten shillings, what the Justice thinks meet, to be levied by distress and sale, &c. and in default to be committed, not exceeding a month, unless he give Bond, with surety, not above ten pounds, not to offend more.
By the Stat. 4 and 5 Will. and Mar. 23. none shall keep any
Net, &c. for taking fish, other than the Owner or Occupier of a river or fishery: and the owner or occupier of a river or fishery, or any authorised by them, may seize them from persons using the same without Consent.
By Stat. 5 Geo. III. c. 14. persons stealing fish from any river or pond, in park or paddock, fenced in and inclosed; or from a garden, orchard, or yard adjoining or belonging to a dwelling house, or aiding or receiving, to be transported for seven years, on conviction at Gaol-delivery.
For stealing fish in other inclosed ground, private property, forfeiture 51. to the Owner, or commitment for six months by one Justice.
By the Black act (9 Geo. I. c. 22.) it is made felony, under some special circumstances, to steal in a fish-pond. If any person shall unlawfully and maliciously break down the Head or Mound of any fish-pond, whereby the fish shall be lost or destroyed, or shall rescue any person in custody for such Offence, or procure any other to join him therein, he shall be guilty of felony, without benefit of clergy.
A conviction on this act (5 Geo. II. c. 14.) must shew that the fishing, &c. was without Consent of the Owner; and it must appear upon Oath who was the Owner. 4 Burr. 2279.
If a man is convicted of taking fish, without saying of another person, or in another person's pond, or without the consent of the owner, (or stealing Qu.) it is bad. Rex v. Mallison, M. 32 G. II. 2 Burr, 679.
In Rivers not navigable Land-owners have the right of fishing on each side, commonly to the middle of the Stream; in navigable rivers it is prima facie in the KING, and is public; but a private person may have an exclusive right by Grant or prescription Carter v. Murcot, H. 8 Geo. III. 4 Burr. 2162.
It is said those are Trespassers in ponds who endeavour to take fish therein, though none are actually taken. 2 Inst. 200.
It has been held that where the Lord of the Manor hath the Soil on both sides of the River, it is good evidence that he hath the right
of fishing, and it puts the proof upon him who claims a free fishery; but where a River ebbs and flows, and is an arm of the Sea, there it is common to all; and he who claims a privilege to himself must prove it: for if trespass is brought for fishing there, the Defendant may justify that the place where is an arm of the Sea, in which all the KING'S subjects hath, and ought to have, free Fishery.
In the Severn the Soil belongs to the Owners of the Land on each side; and the soil of the River Thames is in the KING, but the fishing is common to all. 1 Mod. 105.
He who is Owner of the Soil of a private River, hath a separate or several Fishery, and he that hath free fishery hath a property in the Fish, and may bring a possessory action for them; but communis piscaria is like all other common. 2 Salk. 637.
There needs no privilege to make a fish-pond, as there doth in the case of a warren, 6 Mod. 183.
In taking fish in a trunk or net, Larceny may be committed of them. 1 Hale, 511. But of fish in a River or Pond Larceny cannot be committed. Ibid.
A person claiming a free fishery, a several fishery, or a common of fishery, must shew the Foundation of his Claim; for the right is prima facia in all the KING'S subjects, or in the Owner of the Soil. 1 Mod. 106.
The Owner of a several fishery may lawfully detain Nets, or other Engines, doing damage; but if he cut or destroy them, an Action of Trespass will lie. Cro. Car. 228.
The Owner of a several fishery hath a privileged property in fish therein, and Trespass will lie for taking them. Ibid. 553.
An action of Trespass was brought for cutting the plaintiff's Oars and Nets. The defendant justifies, for that he was seized of a several piscary, and the plaintiff, with others, endeavoured with their Oars to row upon his water, and with the Nets to catch his fish; and for the safeguard of his fishing he took and cut the Nets and Oars, &c. This was adjudged to be no good Justification, because he may have taken the Nets and Oars, and detained them as damage feasant, and so have stopped their further fishing. Cro. Car. 228.
An action does not lie for fishing in a river where the Tide ebbs and flows; for the property of the Soil of all such rivers is in the
KING, and all persons have prima facia a right to fish therein. 1 Mod. 105.
LAWS RELATING TO FISH.
A person who fishes in the fishery of another, for the avowed purpose of giving rise to an Action to try the Right, is not liable to a penalty under 5 Geo. III. c. 14. 2 Dougl. 517.
Fisheries are of three sorts; namely, several, free, common. To constitute a several fishery, it is requisite that the party claiming it should so far have the right of fishing, independent of all others, as that no person should have a co-extensive right with him in the subject claimed, (for where any other person has such co-extensive right, then it is only a free fishery:) but a partial, independent right in another person, or a limited liberty, does not derogate from the right of the general Owner. 4 Burr. 2817, 8.
But the Court did not determine the question, "Whether a person can claim a several fishery without being owner of the soil." Ibid.
The Water-bailiff has no right to seize the Nets or Fish in a person's own fishery, as prohibited by 1 Eliz. c. 17, without previous Presentment or Conviction. 3 Burr. 1770.
The. Violation of this public law (of 1 Eliz. c. 17.) is not within the idea of a nuisance; the method prescribed by it must be pursued. Ibid.
There may be a prescriptive right in the subject to a several Fishery in an arm of the Sea. Mayor, &c. of Orford v. Richardson, 4 T. R. 439.
The right of fishing in the Sea is a right common to all the KING'S subjects. Ward v. Creswell, Willis's Rep. 268.
Every subject, of common right, may fish with lawful Nets in a Navigable river, as well as in the Sea. Warren v. Matthews, 6 Mod. 73. The Crown has only a right to Royal-Fish. Ibid. An Indictment lies for fishing in the private Pond of another. 6 Mod. 183.
Parlet v. Gray.-Trespass.-The case was, that a Man having fishes in his pond, made his Executors and died. The defendant being his Executor, takes the fishes, and the plaintiff as heir brings trespass; and upon this matter disclosed it was demurred in Law. Adjudged without argument for the plaintiff; for although it be