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“ net, angle, leap, piche, or other engine for the taking of fish, “ other than the makers and sellers thereof for their better con“ veniency in the sale of the same, and other than the owner and • occupier of any river or fishery for the time being ;—and the “ owner of any river or fishery, or his appointee, may seize, 6 detain, and keep to his own use, all such nets, or other engines « which he shall find used or laid, or in the custody of any per“son whatsoever, fishing in any river or fishery whatsoever, “ without the consent of the owner or occupier :—and any per“son being authorized by warrant under the hand and seal of a “ justice for the county or place, may search in the day-time the “ houses of persons prohibited to keep the same, who shall be “ suspected of having the same, and the same and every or any “ of them to seize, detain and keep to his or their own use, or “ otherwise to cut in pieces or destroy, as things by this act pro“hibited to be kept by persons of their degree.—But this shall “not extend to fishermen, &c. authorized to fish in navigable “ rivers or waters with lawful nets, &c.”
+ Sect. 3. By 22 and 23 Car. 2. c. 25. s. 7. it is also enacted, « That whoever shall use any casting net, or other net whatso“ ever, or any angle, hair noose, trail or spear, or shall lay any “ wears, pots, nets, fish-hooks, or other engines, or shall take “ any fish by any means or device whatsoever, in any river, stew, " pond, mote, or other several waters or rivers, or shall be aiding “ or assisting thereunto, without the consent of the owner, on “ conviction by confession, or the oath of one credible witness, “ within a month, before one justice, shall render compensation, “ not exceeding treble damages, and over and above, pay down “ immediately any sum not exceeding ten shillings, to the use of “the poor, and on default by distress, shall be imprisoned, not “exceeding one month, in the house of correction, unless the " offender shall enter into a bond to the party injured, with one « surety not exceeding ten pounds, never to offend in like man“ ner.—Justices may seize the nets, &c. but the party may appeal “ to the quarter-sessions, which shall be final, unless title to any “ land, royalty, or fishery, is concerned therein.”
+ Sect. 4. By 9 Geo. 1. c. 22. “ Whoever being armed with “swords, fire-arms, or other offensive weapons, and having his “ or their faces blacked, or being otherwise disguised, shall un“ lawfully steal or take any fish out of any river or pond, or shall “forcibly rescue any person in lawful custody for the same, or “ shall by gift or promise of money or other reward, procure any “ of the king's subjects to join him or them in any such unlaw“ful act, shall suffer death without clergy.” (1)
+ Seet. 5. By 5 Geo. 3. c. 14. it is RECITED, “ That the several laws in being for the preservation of the fish in rivers, ponds, pools, moats, stews, and other waters, are by experience found to be ineffectual to deter divers loose, idle, and disorderly persons from stealing, taking away, or destroying, the fish therein
(1) This is one of the offences to which clergy is restored by 4 Geo. 4. and seven years transpor.
tation, or three years imprisonment and hard labour, in the discretion of the court, substituted.
Persons con bred and preserved ;” and therefore ENACTED, “ That in case victed of steal. “ any person or persons shall enter into any park or paddock ing or destroy- « fenced in and inclosed, or into any garden, orchard, or yard, ing fish, &c. are to be trans-“ adjoining or belonging to any dwelling-house, in or through ported for “ which park or paddock, garden, orchard or yard, any river or seven years.
“ stream of water shall run or be, or wherein shall be any river, “ stream, pond, pool, moat, stew, or other water, and by any “ ways, means, or device whatsoever, shall steal, take, kill, or “ destroy, any fish bred, kept, or preserved, in any such river or “ stream, pond, pool, moat, stew, or other water aforesaid, with“ out the consent of the owner or owners thereof; or shall be “ aiding or assisting in the stealing, taking, killing, or destroying “ any such fish as aforesaid ; or shall receive or buy any such “ fish, knowing the same to be so stolen or taken as aforesaid ; “ and being thereof indicted within six calendar months next after “ such offence or offences shall have been committed, before any “ judge or justices of gaol-delivery for the county wherein such “ park or paddock, garden, orchard, or yard, shall be, and shall “ on such indictment be, by verdict, or his or their own con“ fession or confessions, convicted of any such offence or offences “ as aforesaid ; the person or persons so convicted shall be trans“ported for seven years."
+ Sect. 6. By 5 Geo. 3. c. 14. s. 2. it is recited, “ That for Any offender the more easy and speedy apprehending and convicting of such convicting his
person or persons as shall be guilty of any of the offences beforeaccomplices intitled to
mentioned,” and further enacted, “ That in case any person or pardon,
“ persons shall at any time commit or be guilty of any such
offence or offences as are herein-before mentioned, and shall “ surrender himself to any one of his majesty's justices of the peace “ in and for the county where such offence or offences shall have “ been committed; or being apprehended and taken, or in cus“ tody for such offence or offences, or on any other account, and “ shall voluntarily make a full confession thereof, and a true dis“covery, upon oath, of the person or persons who was or were “ his accomplice or accomplices in any of the said offences, so “as such accomplice or accomplices may be apprehended and “ taken, and shall, on the trial of such accomplice or accom“ plices, give such evidence of such offence or offences, as shall “ be sufficient to convict such accomplice or accomplices there“ of; such person making such confession and discovery, and
giving such evidence as aforesaid, shall, by virtue of this act, “ be pardoned, acquitted, and discharged of and from the offence
" or offences so by him confessed as aforesaid.” Persons con- + Sect. 7. By 5 Geo. 3. c. 14. s. 3. it is further enacted, or destroying,
king “ That in case any person or persons shall take, kill, or destroy, &c.
“ or attempt to take, kill, or destroy, any fish, in any river or
or at “ stream, pond, pool, or other water (not being in any park or “ paddock, or in any garden, orchard, or yard, adjoining or be“ longing to any dwelling-house, but shall be in any other in“ closed ground which shall be private property), every such per
“son, being lawfully convicted thereof by the oath of one or forfeit to the “ more credible witness or witnesses, shall forfeit and pay, for
" every such offence, the sum of five pounds, to the owner or fishery, 5.
“ owners of the fishery of such river or stream of water, or of “ such pond, pool, moat, or other water: And it shall and may “ be lawful to and for any one or more of his majesty's justices “ of the peace of the county, division, riding, or place, where “such last-mentioned offence or offences shall be committed, “ upon complaint made to him or them upon oath, against any
person or persons, for any such last-mentioned offence or of“ fences, to issue his or their warrant or warrants to bring the “person or persons so complained of before him or them; and “ if the person or persons so complained of shall be convicted of “ any of the said offences last-mentioned, before such justice or “ justices, or any other of his inajesty's justices of the same “ county, division, riding, or place aforesaid, by the oath or oaths “ of one or more credible witness or witnesses, which oath such “ justice or justices are hereby authorized to administer, or by “his or their own confession; then, and in such case, the party “ so convicted shall, immediately after such conviction, pay the “ said penalty of five pounds, hereby before imposed for the of“ fence or offences aforesaid, to such justice or justices before “ whom he shall be so convicted, for the use of such person or “persons as the same is hereby appointed to be forfeited and “paid unto; and, in default thereof, shall be committed by such “ justice or justices to the house of correction, for any time not “exceeding six months, unless the money forfeited shall be “ sooner paid."
# Sect. 3. By 5 Geo. 3. c. 14. s. 4. it is provided, “ That it “ shall and may be lawful to and for such owner or owners of “ the fishery of such river or stream of water, or of such pond, “ pool, or other water, wherein any such offence or offences last"mentioned shall be committed as aforesaid, to sue and prose“ cute for, and recover the said sum of five pounds, by action of “ debt, bill, plaint, or information, in any of his majesty's courts “ of record at Westminster; and in such action or suit, no “essoign, wager of law, or more than one imparlance, shall be " allowed; provided that such action or suit be brought, or “ commenced, within six calendar months next after such offence " or offences shall have been committed.”.
+ Sect. 9. By 5 Geo. 3. c. 14. s. 5. it is also provided, “That “ nothing in this act shall extend, or be construed to extend, to “ subject or make liable any person or persons to the penalties “ of this act, who shall fish, take, or kill, and carry away, any “ fish, in any river or stream of water, pond, pool, or other “ water, wherein such person or persons shall have a just right “ or claim to take, kill, or carry away, any such fish.”
An indictment against John H. on this statute, 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, &c.; on evidence, it appeared, that the pond adjoined the house, and was about twenty yards VOL. 1.
in length and ten in breadth: it was objected, that fish in an open pond were fera natura, 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 a felony, 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 st. of 5 Geo. 3. 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. It is observed by Mr. East, that the statute uses the word “ steal,” which seems to imply that the legislature meant to make the offence a larceny-if so, the indictment would not have been good without laying the fish to be the property of some person. (See E. P. C. 612.)
4 Sect. 10. It hath been determined that a person who fishes in a fishery belonging to another, but to which he has a claim, for the purpose of giving occasion to an action in order to try the right, is not liable to a penalty under the statute above recited.
54% Dougl. 517,
Oysters. By statute 31 Geo. 3. c. 51. it is enacted, “ That if any per“ son or persons shall, at any time from and after 1st of August, “ 1791, with or by means of any net, traul, dredge, or other in“ strument or engine whatsoever, take or catch any oysters or “ oyster brood, within the limits of any oyster fishery of this “ kingdom, or shall dredge for oysters or oyster brood, or use “ any oyster dredge, or other net, instrument, or engine whatso“ ever, within the limits of any such fishery, for the purpose of “ taking or catching oysters or oyster brood, although no oysters “ or oyster brood shall be actually taken; or shall with any net, “ instrument, or engine, drag upon the ground or soil of any “ such fishery; all and every such person and persons (other than “ and except such persons as shall be the owners, lessees, or oc“ cupiers of such fishery, or shall be otherwise lawfully enti“ tled to take or catch oysters therein) shall be deemed and “ taken to be guilty of an offence and misdemeanor, and shall “ and may be prosecuted for the same by indictment at the as“ sizes, or general quarter-sessions of the peace, to be holden in “ and for the county, riding, or division in which such fishery “ shall lie; and the justices in sessions are hereby authorized “ and required to hear and determine all and every such offence “ and offences; and such person or persons being lawfully con“ victed by verdict, or by his or their own confession, shall and “ may be punished for any of the said offences by fine and im“ prisonment, or either of them, as the court before whom such “ person or persons shall be so convicted shall think proper, “ such fine not to exceed twenty pounds, or be less than
“ forty shillings, and such imprisonment not to be for more than “ three months, or less than one month.”
By 48 Geo. 3. c. 144. intituled, An act for the more effectual protection of oyster fisheries and the brood of oysters, in England; reciting, “that the provisions of the statute 31 Geo. 3. c. 51. have been found inadequate to the protection of the oyster fisheries of this kingdom; and that doubts have arisen, since the passing of the said act, whether the taking oysters or oyster brood from any oyster bed or laying, or from any oyster fishery, can, under any circumstances, be deemed felony, and punishable as such; and that it is therefore expedient and necessary that more effectual provision should be made for the protection of the oyster fisheries, and for removing such doubts as aforesaid;” and then declares and enacts, “ that every person who shall at any time, " after the 1st of August, 1808, knowingly and wilfully steal, take, "and carry away any oysters or oyster brood, from any oyster bed, “or oyster laying, or oyster fishing, being the property of any per“son or persons, or body or bodies politic or corporate, and suf“ficiently marked out as such, shall be deemed guilty of felony, "and shall and may be transported for any term not exceeding "seven years, or be imprisoned and kept to hard labour in any “common gaol or house of correction, or penitentiary house, or “ imprisoned only, for any term not exceeding three years, as the "court, before whom any such person shall be convicted, may “adjudge."
By the last of these statutes the actual taking of oysters is a felony, and by the 31 Geo. S. the attempt to take them, though none be actually taken, is a misdemeanor.
In order also to obviate the difficulty of laying a venue, when it is uncertain in what parish the oyster-lay is situated, and when it is on the borders of a county, it is enacted, by s. 3. “ that it shall “ be sufficient in any individual under this or the former act, 31 “ Geo. S. to describe, either by name or otherwise, the bed, laying “ or fishery in which the offence shall have been committed, with“out stating the same to be in any particular parish;” and when it is on the border of a county it may be stated to be in the county where the indictment is found, it being either in that county, or the adjoining county. Things of no intrinsic Value at Common Law, Choses in Action, &c.
Larceny at common law could not be committed of goods which had not some worth in themselves, and did not derive their value from relationship to some other; thus, bonds, bills, notés, and securities for money, per se were of no value, and not the subjects of larcény. To remedy this inconvenience,
+ Sect. 1. By 2 Geo. 2. c. 25. 8. 3. it is enacted, " That if any to steal orders, a person or persons shall steal or take by robbery any exchequer tallies, &c.
or felony “ orders or tallies, or other orders, intitling any other person or “persons to any annuity or share in any parliamentary fund, or “ any exchequer bills, bank notes, South-Sea bonds, East India " bonds, dividend warrants of the bank, South-Sea company, " East India company, or any other company, society, or corpo