CHAPTER THE FOURTEENTH. OF UNLAWFULLY TAKING OR ATTEMPTING TO TAKE FISH. Ir is admitted, that larceny at common law may be committed of Offence at fish when confined in a trunk or net; (a) but doubts have been common law. raised, whether it may be committed in like manner of fish in a pond. It should seem, however, upon principle, and according to the better opinions, that larceney may be committed of fish in a pond, if the pond be private enclosed property, and of such kind and dimensions that the fish within it may be considered as restrained of their natural liberty, and liable to be taken at any time, according to the pleasure of the owner. (b) But clearly larceny at common law cannot be committed of fish at their natural liberty in rivers or great waters. (c) Many statutes were passed at different times for the better Offences by preservation of fish, and for regulating the fisheries in various parts statutes. of the kingdom; but some of them became obsolete, and the others were repealed by the 7 & 8 Geo. 4. c. 27. situate in The 7&8 Geo. 4. c. 29. s. 34. enacts, "that if any person shall Taking fish in "unlawfully and wilfully take or destroy any fish in any water any water "which shall run through or be in any land adjoining or belonging land belong"to the dwelling-house of any person, being the owner of such ing to a dwellwater, or having a right of fishery therein, every such offender ing house, "shall be guilty of a misdemeanor, and, being convicted thereof, "shall be punished accordingly; and if any person shall unlaw- In any private "fully and wilfully take or destroy, or attempt to take or destroy, fishery elseany fish in any water, not being such as aforesaid, but which where. 66 "shall be private property, or in which there shall be any private "right of fishery, every such offender, being convicted thereof "before a justice of the peace, shall forfeit and pay, over and "above the value of the fish taken or destroyed, (if any), such sum " of money, not exceeding five pounds, as to the justice shall seem "meet: provided always, that nothing hereinbefore contained Provisions "shall extend to any person angling in the day-time; but if any respecting person shall by angling in the day-time unlawfully and wilfully (a) Ante, 151. 2 East. P. C. c. 16. s. 43. p. 610. (b) Staundf. 25 b. 3 Inst. 109. Lamb. 274. 1 Hawk. P. C. c. 33. s. 39. 2 East. P. C. c. 16. s. 43. p. 610, 611. But the indictment should describe the pond, so that it may ap- (c) 3 Inst. 109. 1 Hawk. P. C. anglers. The tackle of fishers may be seized. Angler, on seizure of his tackle, ex empt from penalty. Stealing oysters or oyster brood from oyster beds. Dredging for oysters within the limits of any oyster fishery. Proviso. Apprehension of offenders. Summary convictions. "take or destroy, or attempt to take or destroy, any fish in any "such water as first mentioned, he shall, on conviction before a "justice of the peace, forfeit and pay any sum not exceeding five "pounds; and if in any such water as last mentioned, he shall, "on the like conviction, forfeit and pay any sum, not exceeding "two pounds, as to the justice shall seem meet; and if the "boundary of any parish, township, or vill, shall happen to be in "or by the side of any such water as is hereinbefore mentioned, it "shall be sufficient to prove that the offence was committed "either in the parish, township, or vill, named in the indictment "or information, or in any parish, township, or vill adjoining "thereto." The 35th section of the same statute enacts, "that if any person "shall at any time be found fishing against the provisions of this 66 act, it shall be lawful for the owner of the ground, water, or 66 fishery, where such offender shall be so found, his servants, or 66 any person authorized by him, to demand from such offender 66 any rods, lines, hooks, nets, or other implements for taking or "destroying fish, which shall then be in his possession, and in 66 case such offender shall not immediately deliver up the same, to "seize and take the same from him for the use of such owner: provided always, that any person angling in the day-time against "the provisions of this act, from whom any implements used by "anglers shall be taken, or by whom the same shall be delivered up as aforesaid, shall by the taking or delivering thereof be ex"empted from the payment of any damages or penalty for such "angling." 66 The 36th section of the same statute enacts, " that if any person "shall steal any oysters or oyster brood from any oyster bed, "laying or fishery, being the property of any other person, and "sufficiently marked out or known as such, every such offender "shall be deemed guilty of larceny, and, being convicted thereof, "shall be punished accordingly; and if any person shall unlawfully and wilfully use any dredge, or any net, instrument, or engine "whatsoever, within the limits of any such oyster fishery, for the purpose of taking oysters or oyster brood, although none shall "be actually taken; or shall, with any net, instrument, or engine "drag upon the ground or soil of any such fishery, every such person shall be deemed guilty of a misdemeanor, and, being "convicted thereof, shall be punished by fine or imprisonment, 66 or both, as the court shall award; such fine not to exceed twenty "pounds, and such imprisonment not to exceed three calendar 66 months; and it shall be sufficient in any indictment or infor"mation to describe, either by name or otherwise, the bed, laying, "or fishery in which any of the said offences shall have been "committed, without stating the same to be in any particular "parish, township, or vill: provided always, that nothing herein "contained shall prevent any person from catching or fishing for any floating fish within the limits of any oyster fishery with any "net, instrument, or engine adapted for taking floating fish only. The 63d section contains a general provision for the apprehension of offenders punishable under the act, except only as to the offence of angling in the day-time and the 64th and following sections regulate the proceedings in respect of summary convic tions. the second degree and ac The 61st section as to cases of felony, makes principals in the Principals in second degree and accessories before the fact punishable in the same manner as principals in the first degree; and accessories cessories. after the fact (except receivers) are on conviction liable to be imprisoned for any term not exceeding two years; and abettors in misdemeanors are liable to be indicted and punished as principal offenders. By section 62, abettors in offences punishable on summary conviction are made punishable as principal offenders. VOL. II. CHAPTER THE FIFTEENTH. Stealing goods from a vessel in a port, ri ver, canal, &c. Plundering any part of the tackle or cargo of a shipwrecked vessel. Proviso. Place of trial. Persons in possession of shipwrecked goods not giving a satisfactory account. OF STEALING IN ANY VESSEL IN PORT, OR UPON ANY NAVIGABLE 66 RIVER, &C. OR IN ANY CREEK, &c. AND OF PLUNDERING SHIPWRECKED VESSELS. THE 7 & 8 Geo. 4. c. 29. s. 17. enacts, "that if any person shall "steal any goods or merchandize in any vessel, barge, or boat of " any description whatsoever, in any port of entry or discharge, or upon any navigable river or canal, or in any creek belonging "to or communicating with any such port, river, or canal, or "shall steal any goods or merchandize from any dock, wharf, or quay adjacent to any such port, river, canal, or creek, every "such offender, being convicted thereof, shall be liable to any of "the punishments which the court may award as hereinbefore last "mentioned," namely, "shall be liable at the discretion of the "court to be transported beyond the seas for life, or for any term "not less than seven years, or to be imprisoned for any term not "exceeding four years, and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall think fit) in ad"dition to such imprisonment." 66 66 The 18th section of the same statute enacts" that if any person "shall plunder or steal any part of any ship or vessel which shall "be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandize, or articles of any kind belonging to such "ship or vessel, every such offender, being convicted thereof, "shall suffer death as a felon : provided always, that when articles "of small value shall be stranded or cast on shore, and shall be "stolen without circumstances of cruelty, outrage, or violence, it "shall be lawful to prosecute and punish the offender as for simple larceny; and in either case the offender may be indicted and "tried either in the county in which the offence shall have been "committed, or in any county next adjoining." The 19th section enacts, "that if any goods, merchandize, or "articles of any kind, belonging to any ship, or vessel in distress, "or wrecked, stranded, or cast on shore as aforesaid, shall, by "virtue of a search-warrant, to be granted as hereinafter men"tioned, be found in the possession of any person, or on the pre"mises of any person with his knowledge, and such person, being "carried before a justice of the peace, shall not satisfy the justice "that he came lawfully by the same, then the same shall, by or "der of the justice, be forthwith delivered over to or for the use "of the rightful owner thereof; and the offender, on conviction "of such offence before the justice, shall forfeit and pay, over and "above the value of the goods, merchandize, or articles, such sum of money, not exceeding twenty pounds, as to the justice "shall seem meet." 66 66 offers shipfor sale, the goods may be seized, &c. wrecked goods The 20th section of the same statute enacts, "that if any person If any person "shall offer or expose for sale any goods, merchandize, or articles "whatsoever, which shall have been unlawfully taken, or reason"ably suspected so to have been, from any ship or vessel in distress, or wrecked, stranded, or cast on shore as aforesaid, in every such case any person to whom the same shall be offered "for sale, or any officer of the customs or excise, or peace officer, may lawfully seize the same, and shall with all convenient speed carry the same, or give notice of such seizure, to some justice " of the peace; and if the person who shall have offered or exposed "the same for sale, being duly summoned by such justice, shall "not appear and satisfy the justice that he came lawfully by such goods, merchandize, or articles, then the same shall, by order "of the justice, be forthwith delivered over to or for the use of "the rightful owner thereof, upon payment of a reasonable re"ward (to be ascertained by the justice) to the person who seized "the same; and the offender, on conviction of such offence by the "justice, shall forfeit and pay, over and above the value of "the goods, merchandize, or articles, such sum of money, "not exceeding twenty pounds, as to the justice shall seem "meet." The 63d section contains a general provision for the apprehen- Apprehension sion and discovery of offenders punishable under the act: and the of offenders. 64th and following sections regulate the proceedings in respect of Summary consummary convictions. victions. accessories. offences. By the 61st section, in cases of felony, principals in the second Principals and degree and accessories before the fact are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers) are on conviction liable to be imprisoned for any term not exceeding two years; and abettors in misde- Abettors in meanors are liable to be indicted and punished as principal of- misdemeanors fenders. By section 62, abettors in offences punishable on sum- and in minor mary conviction, are made punishable as principal offenders. It may be observed that in a case upon the repealed statute 24 Geo. 2. c. 45. the words " goods, wares, and merchandize" meaning of were considered as restrained to such goods, &c. as were usually goods, &c. lodged in vessels, or on wharfs or quays. (a) So that where the prisoner was indicted upon that statute for stealing a considerable sum of money out of a ship in port, the case was holden not to be within the statute, though great part of the money consisted of Portugal money not made current by proclamation, but commonly current. (b) (a) 2 East. P. C. c. 16. s. 85. p. 647. Ass. 1752. Fost. 79, in the note, (b) Grimes's case, Maidstone Lent As to the |