Page images
PDF
EPUB

felony to steal out of a Dam or pond*, or trunk (18 Edw. IV, Pl. 8.), yet the Owner dying and leaving them in the Pond, they are as profits of the Freehold, which the Executor shall not have, but the Heir, or he who hath the Water. Cro. Eliz. 372.

In July 1757, John Hanson being indicted at the Old Bailey for stealing twenty-five live fish, called Carp, value 10s. three Tench, value 3s. and three Perch, value 12d. the property of the Right Honourable Lord VERE BEAUCLERK, &c. pleaded guilty, and being ordered to be Branded, the same was immediately done.

And John Graham was indicted, for that he, before the felony was committed by Hanson, on the 14th of April, feloniously did incite, move, procure, and abet the said Hanson; to wit, on the 17th of April, the said Fish so stolen did receive and have, well knowing them to have been stolen; and of this Offence the said John Graham was brought in guilty, and sentenced to be transported for fourteen years.

William Hetherington and John Sorrel were indicted for stealing out of a pond in a garden adjoining to the dwelling house of Ann Talk, Widow, twenty gold fish, value 20s. and twenty silver fish, value 20s. the property of the said Ann Talk; and being convicted, were sent to work on the River Thames.-Vide Trials at the Old Bailey in December 1780.

An Indictment against John Hunsdon on the Statute 5 Geo. III. c. 14. charged him with unlawfully entering a Garden of A. T. adjoining, and belonging to her Dwelling House, in which was a certain Pond used for keeping Fish; and without A. T.'s consent, with a certain Net, stealing and taking out of the said Pond a certain quantity of live Gold and Silver Fish, of the goods and chattels of the said A. T. against the form of the Statute. On Evidence it appeared that the Pond out of which the Fish were taken adjoined to the House, and was about twenty yards in length, and ten yards in breadth; that Gold Fish and other Fish were kept in

The better Opinion seems to be, that stealing Fish from a Pond is not Felony. See to this point Forster's Crown Law, p. 366, Owen 20, and 9 Geo. I. c. 22. which makes it Felony under some special circumstances, to steal Fish in a Pond.

it, which were usually fished for with a hook and line. It was ob jected, that Fish in an open Pond were feræ naturæ, unreclaimed, and not the property of any particular person, as they were laid to be in the Indictment. In answer to which a distinction was taken on the part of the Crown, that this was not an Indictment for Fe lony, but only for a Misdemeanor on the Statute*, though the punishment directed was Transportation. In Easter Term 1781, all the Judges held the Indictment good, the Case being fully brought within the Statute 5 Geo. III. without the Allegation that the Fish were the Goods and Chattels of any person; and therefore that part of the Indictment was Surplusage. But if the Indictment had been at common law for felony, it was the opinion of some that it should have described what sort of a Pond it was, that it might appear on the face of the Indictment that taking Fish out of such a Pond was Felony.

Fishing in inclosed ponds, &c. with intent to steal, or buying stolen fish, is Felony, but within Clergy.

Fish taken in a pond, or in any inclosed rivers, are liable to pay Tythe. 1 Roll. Abr. 626. pl. 4, 6, 7. But no Tythe is due, except by Custom, of Fish taken in the Sea, or in any open River, although they are taken by a person who has a several Fishery, because such Fish are feræ naturæ. Noy. 108, Cro. Car. 332.

A Lease of a fishery of a pond, with the spear-sedge, flags, and rushes, in and about the same, is such a constructive Demise of the soil, that it is a sufficient Tenement, within the 13 & 14 Car. II. c. 12. to confer a Settlement. Bott's Poor Laws, v. 2. p. 102.

A conviction on the Statute 5 Geo. III. c. 14. for fishing without Consent of the Owner, "in a part of a certain Stream, which runneth between B. in the parish of A. in the county of W. and C. in the same parish and county," Quashed, because it did not appear that the intermediate course of the stream between the two termini, in which the Offence was alleged to be committed, was in the county of W. and within the Jurisdiction of the convicting Magistrate. King v. Edwards, 1 East's T. Rep. 278.

Roy versus THE DUKE OF BEAUFORT, June 5, 1741. The bill was brought to be relieved against a Judgment obtained

It is observable, however, that the Statute uses the word Steal.

at Law on a Bond in the penalty of 100l. and likewise excessive damages of forty pounds, and for a perpetual Injunction.

The plaintiff was jointly bound with his Son in a Bond in the penalty of 100%. that the Son should not commit any trespass in the Duke's royalty, by shooting, hunting, fishing, &c. unless with the licence of the Game-keeper, or in company with a qualified person.

The Son afterwards having catched two flounders with an angling rod, in the Duke's royalty, the Bond was put in suit against the plaintiff, and judgment for the Penalty.

Two of the Duke's servants, one of them brother-in-law to MARKS, the game-keeper, asked the Son of the plaintiff to go with them, and divert himself with fishing; they angled about two hours, in a Navigable river, and catched two Flounders.

The Verdict was found by the Jury merely upon the Evidence of these two Servants.

The plaintiff (his son being dead) has been obliged to pay the 100l. the 40%. costs of suit, though the value of the flounders was proved to be twopence only.

The Bond was given in 1729, while the plaintiff was under a prosecution, and in custody before a Justice of Peace, at the information of Marks, the game-keeper, for carrying a gun in the Duke's Manor, and for killing a Dog belonging to the Duke.

It was not pretended that the plaintiff's Son killed any game, but that he carried a Gun only.

Marks took him before a Justice of peace that lived fifteen miles from the place, when there were several neighbouring Justices within three miles.

When the plaintiff's Son was before the Justice of peace, they threatened him with being entirely ruined by the Duke, if he would not agree to give this Bond.

From the year 1729 till 1732, it does not appear that he ever was guilty of any Trespass; and even after the Flounders were catched, which was in 1732, no manner of notice was taken of it till 1734, when an information for a Riot having been tried at Winchester (in which these very Servants that decoyed the Son into this fishing were convicted, on the Evidence of the Plaintiff in this cause,) immediately after the Trial, the Suit was commenced upon the Bond.

LORD CHANCELLOR:

The first general question is, Whether the Bond was obtained by Oppression, and by the Imposition of the Duke of BEAUFORT'S

Servants?

Secondly, Supposing there is an Evidence of such Imposition, whether the Bond will be considered only as a Security that the Son should not poach for the future?

Thirdly, Whether an ill use has been made of this Bond?

As to the first head of relief, oppression and imposition, I am of opinion there is no Evidence of either which ought to induce the Court to relieve.

The plaintiff's Son appears to have been a person who made a practice of carrying a Gun, and likewise was warned several times by Marks, the game-keeper, not to come into the Duke's manor: afterwards Marks, being upon his lawful business, finds this young man, with a Gun in his hand, and might have justified seizing the Dog, and though he shot him, it does not make any great alteration, because if any body has suffered, the Duke has, who lost the benefit of the Dog, which should have been secured to his own use. The carrying a Gun and shooting the keeper's dog, in return for his own being killed, was a sufficient justification of Marks for taking the plaintiff's Son before a Justice of peace.

As to the point of taking him before a Justice of peace who lived at the distance of fifteen miles, it is not a thing to be commended; but, however, that does not prevent his having equal Jurisdiction as if he had lived in the Neighbourhood: it appears, besides, that the plaintiff's Son had more assistance at Winchester than he would have had in any other part of the Country; for he had the Recorder for his Counsel, and it is very probable the Game-keeper had an eye to having Counsel himself, or he would not have thought of carrying him so far.

No evidence has been attempted to be given of the Justice of peace misbehaving in the affair; on the contrary, he was so favourable as not to levy the penalty of five pounds, which the statute gives against a person carrying a Gun being unqualified; nor was there any notice taken of killing the Duke's Dog; and, however trifling it may be called, if such a thing had come before me

at nisi prius, on the insolent behaviour of the person at the time he shot the Dog, and other circumstances, I should have made no scruple of directing very considerable Damages.

As Counsel appear to have been present the whole time before the justice of peace, though it is not said they advised the Bond, yet I must presume they did, as nothing is shewn to the contrary.

Bonds taken for the preservation of the Game, and to prevent Poaching, are not only for the Benefit of Lords of manors, but even of the young persons who enter into them, as this sort of Idleness generally leads them to worse consequences.

As to Oppression, if there had been any illegal advantage taken whilst he was in Custody before the Justice of peace, he might have been relieved at Law, and there was no occasion for a suit in Equity.

Though there is no Act of parliament which directs taking Bonds in this particular case, yet there are Statutes which approve of it in similar cases; as for instance, the Acts that relate to the Customs expressly direct and command such Bonds to be taken to prevent and guard against offences for the future. The Act likewise against Deer-stealing commands such Bonds to be taken. Vide 5 G. I. c. 15. sect. 4. and though there is no Authority in the present case, yet it shews the doing of it is not malum in se.

The Counsel for the plaintiff have insisted it is an excessive Penalty, and to be sure it is a large one; but I do not know that Courts of Equity, where a Bond is entered into Voluntarily, have gone so far as to take into their Consideration the greatness or smallness of the Penalty. I shall be extremely cautious how I give an opinion that will set aside such Bonds, which, if rightly used, may be of great Service in the preservation of the Game, and an equal Benefit to the Obligors themselves, in taking them out of an idle course of Life, which Poaching naturally leads them into.

As to the head of Security; it is most absurd to think that Bonds of this kind were intended merely as a Security, and that nothing is to be recovered upon them.

I am of opinion, when these sort of Bonds are given by way of stated damages between the Parties, it is unreasonable to imagine

« PreviousContinue »