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impart, until after being in his service for many years; Old Jonathan always requested to have the management of the hoop-nets left to himself, and would allow of no assistant, and his plan (the above) always proved successful.

Stub-Nets

are very useful in catching Carp or Trout, when they flee to the banks. They should be made of very strong twine, inch and quarter mesh, be nine feet long, with cork and lead line, upon which there should be plenty of each; a few widenings should be thrown into the middle, so that there may be a little appearance of a bag, the net is then to be firmly fastened, (so that it stands from lead to cork, three or four feet deep,) to two ash pitchfork handles, shod with iron spikes at one end. In surrounding a stub, one spike is to remain fixed in the ground, whilst the other is thrust underneath the stub, the fish thus annoyed, try to regain the deep water, and strike into the bosom of the net, which is then hoisted up, the fish taken out, and the net put down for other trials. If the stubs are very jagged, both spikes are to be stuck in the ground as close as possible to the harbour, and the parties grope with their hands, and those fish which escape their fingers, are caught in the stub-net.

Laws relating to Fish.

BY the statute 3. Ed. 1. 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 convict and fined. And misfeasors in fish ponds shall make amends, &c. c. 20.

By the Stat. 13 Ed. 1. c. 47. and 13 Rich. 2. 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 of 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 year for the second, and of a whole year for the third.

By the Stat. 17 Ric. 2. c. 9. Justices of Peace shall be conservators of the above statutes, and may appoint under-conservators, and at Sessions enquire 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 meash of two inches and a half, on pain of 20/. of which Justices of Peace may inquire if no presentment in the leet within a year.

By 22 & 23 Car. 2. c. 25. a person convict 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 & 5 Will. & 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 of fishery, or any authorized by them, may seize them from persons using the same without consent.

By Stat. 5 Geo. 3. c. 14. persons stealing fish from any river or pond, in a 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 goal-delivery.

For stealing fish in other inclosed ground, private property, forfeiture of 5%. to the owner, or commitment for six months by one Justice.

By the black act (9 Geo. 1. 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.

CONVICTION.

A conviction on this act (5 G. 2. 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. 4. G. z. z Burr. 679.

ADJUDGED CASES.

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. 3, 4 Burr. 2162.

It is said that those are trespassers in ponds, who endeavour to take fish therein, though none 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 facie in all the King's subjects, or in the owner of the soil. 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. Cre. Car. 228.

The owner of a several fishery hath a privileged property in fish therein, and trespass will lic 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 facie a right to fish therein. 1 Mod. 105.

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. 3. 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. Cresswell, Willis's Rep. 268.

Every subject, of common right, may fish with lawful nets in a navigable river as well as in Warren v. Matthews, 6 Mod. 73. The Crown has only a right to royal fish. Ibid.

the sea.

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 felony to steal fish out of a dam or pond*, or trunk (18 Ed. 4. 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 beir, 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.

John Hunsdon being indicted for a similar offence, in stealing gold fish out of a pond belonging to the above-mentioned Ann Talk; and the case being reserved for the opinion of the twelve Judges, by the unanimous opinion of the said Judges he was convicted, and sentenced to work a year in the ballast lighters. Vide ibid. 1781.

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

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The better opinion seems to be, that stealing fish from a pond is not felony. See to this point Foster's Crown Law, p. 366, Ouen 20, and 9 Geo. 1. c. 22. which makes it felony, under some special circumstances, to steal fish in a pond.

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