Fish taken in a pond, or in any inclosed river, are liable to pay tythe. 1 Roll. Abr. 636. 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 the 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. 2. c. 12. to confer a settlement. Bott's poor Laws. v. 2. p. 102.

A conviction on the Stat. 5 Geo. 3. 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 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 be. fore 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 two 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 im position 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. 1. 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 they could only be intended as a bare security that the obligor should not offend for the future; was this the case, in what respect is a gentleman in a better condition, who has such a bond, than he was before, if, after he has obtained judgment at law, a court of equity will give him no other satisfaction than the bare value of the price of the game that is killed.

These two heads of relief may therefore be laid out of the case.

The third is the most material consideration, and that is the ill use which has been made of the bond.

No evidence has been offered to shew that ever the plaintiff's son has been guilty of shooting, fishing, hunting, &c. from the time of the giving the bond in 1729, till May 1732; after this fact of catching the two flounders, which must be admitted to be a breach, it rests for two years, and no action was brought upon the bond; then it appears that the plaintiff here was a witness in an information for a riot tried at Winchester assizes in Trinity Term 1734, where the Duke's two servants were convicted, and chiefly on the plaintiff's evidence.

It is a very material circumstance that the plaintiff's son had a licence, or at least an encouragement to fish, by being in company with two of the Duke's servants, one of which was brotherin-law to Marks the game-keeper.

It appears by the evidence that Marks, who was the game-keeper, who had the authority of the Duke, who has been a witness to the transaction of the bond, gave a licence, or at least an encouragement to this fishing, which, as it was with an angling rod only, could not be called poaching, nor was it ever so esteemed.

Besides, in such a tract of time as two years, it is impossible to suppose Marks, the game. keeper, could be ignorant of this fishing, especially as his own brother-in-law was in company.

According to the condition of this bond, the plaintiff could not be relieved at law, because his son could not fish without express leave from the game-keeper, or in presence of a qualified person, so that if the Duke of Beaufort himself had given leave, there must at law have been a verdict, because it is not within the express terms of the condition of the bond.

Now when a man has made this moderate use of his liberty of fishing, and manifestly appears to have had leave, it would be hard not to relieve against the judgment, and penalty recovered upon this bond at law.

Lord HARDWICKE decreed the plaintiff should be relieved against the verdict, and that the Duke should refund the 10c/, recovered on the bond, and the 40/. damages.

BIRDS.

THE Author of Nature, attentive in all its dispensations to the happiness of man, has furnished to him, in the feathered creation, a source of diversified and delightful enjoyment; the loveliness of their plumage captivates his eye, the sweetness of their harmony enchants his ear; without their "woodnotes wild," the morning walk would be cheerless, and the rural landscape would lose half its charms. In a former part of this Work, the finny tribe engaged the attention of the Reader, we I shall now endeavour to extend his acquaintance with the tuneful race. Objects with which we are familiar, raise no emotions within us of surprise or admiration. Nothing is more common to our sight, than the flight of Birds, yet to the reflective mind it affords matter of rational amazement. A Bird when on the wing is elevated high above the earth; notwithstanding the tendency of all bodies to the centre, it glides through the boundless regions of air with ease and vigour, varies its course to every direction with the utmost facility, and at last descends almost from the clouds on a particular spot, with the greatest exactness, and without the slightest danger; and all this without any external impulse, but by its own appropriate make and movement, which are most curiously calculated for the element for which it is destined.

Every class of animals has its peculiar and appropriate designation; the Quadruped, muscular and vigorous, treads the earth in common with man, and is either subdued to docility, or left to range the woods in the wildness of their native strength; the Bird, feeble and timid, wings its flight in air, and eludes the force it cannot resist.