but if the arbitrators so to be appointed shall differ in opinion 55 G. 3. c. 94. thereon, the said justice shall require them to name one other skilful person, not interested in the matter in dispute, which person so nominated shall examine the matters in dispute, and upon such examination shail certify upon oath, to be made before the said justice, his opinion thereon, and the said matter shall then be finally determined accordingly." § 42. All penalties and forfeitures to be sued for, levied, and Penalties. mitigated, as others by the law of customs and excise; one moiety to be to the king, the other to the informer. IV. Of the oyster-fisheries. By the 31 G. 3. c. 51. if any person shall with any net, traul, dredge, or other instrument 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 any net, instrument, or engine whatsoever within the limits of any such fishery, for the purpose of catching oysters or oyster brood, although one be actually taken; or shall drag upon the ground of any such fishery with any net or other engine; every such person (other than the owners, lessees, or occupiers of such fishery, or persons lawfully entitled to catch oysters therein,) shall be deemed guilty of a misdemeanor, and shall and may be indicted for the same at the assizes or quarter sessions for the county or division; and the justices in sessions shall hear and determine all such offences: And every such offender being convicted by verdict, or on his own confession, shall be punished by fine and imprisonment, or either of them, as the court shall think proper; such fine not to exceed 201. nor be less than 40s.; and such imprisonment not to be for more than three months, nor less than one month. 31 G. 3. c. 51. Unlawfully fish ing in any oyster fishery. § 3. Any justice, upon complaint on oath within 30 days of such Offenders may offence having been committed, may by warrant cause such offender be apprehended. to be brought before himself or any other justice acting for the county or division, who may commit him to the common gaol or other usual place of confinement for prisoners until the next assizes or quarter sessions, whichever shall first happen, unless he enter into recognizance with two sureties in 201. each to appear either at the said first assizes or general quarter sessions, which shall first happen, and there to answer to any indictment which may be preferred against him by virtue of this act. § 4. If any such person (except as aforesaid) shall be found as Offenders refus aforesaid, &c. within the limits of any oyster fishery, and shall re- ing to tell their fuse to discover his real name and true place of abode or residence names. to the owner, lessee, or occupier of such fishery, or his apprentice or servant, he may seize, secure, and detain such person so found actually taking or catching, or dredging, or using as aforesaid, or with any net as aforesaid dragging as aforesaid, and refusing as aforesaid, and carry him before a justice, who on oath being made of the offence shall proceed against him in the same manner as if he had been apprehended and brought before him by virtue of a warrant. § 5. Provided, that no justice by this act shall commit any per- Recognizances to son, or require security from him for his appearance as aforesaid, prosecute. 31 G. 3. c. 51. unless one sufficient householder being an owner, lessee, or occupier, or otherwise lawfully entitled to catch oysters in such fishery, (whose oath that he is such owner, &c. shall be sufficient evidence thereof), shall enter into recognizance before the said justice in 201. for his appearance at such next assizes or quarter sessions, and there to prefer and prosecute with effect a bill of indictment against such offender. Offenders may be bailed. Not to extend to floating fish. Nor to affect any former act. R. v. Walford, Sum. Ass. 1803. 48 G. 3. c. 144. Persons stealing oysters or oyster brood from oyster beds, &c. shall be deemed guilty of felony. Act not to affect persons claiming a right to take away such oysters, &c. Parish need not be stated in § 6. And if, after any such person shall have been committed, two sufficient sureties shall before the justice by whom committed enter into recognizance in 201. each for the appearance of such person so committed at such next assizes or quarter sessions, which shall first happen, and to answer to any indictment which may be preferred against him under this act; such justice may by warrant order such person to be discharged from his commitment and delivered out of custody. § 2. Provided, that nothing herein shall extend to hinder any person from catching or fishing for any floating fish in the waters or creeks within the limits of any oyster fishery. § 7.8. Provided always, that this act shall not affect any act now in force respecting any particular oyster fishery; or preclude any prosecution at the common law for any offence herein described: but no person shall be liable to have an action brought against him for any offence for which he shall have been punished by this act. Where, however, a defendant was charged with feloniously stealing half a peck of oysters from a certain oyster bed or laying, belonging to the prosecutor, where they were placed for the purpose of being fattened, Hotham, B. who tried the case, appears to have ruled, after having consulted some of the other judges, that this stat. 31 G. 3. c. 51. having made the offence a misdemeanor only, had negatived the idea of a felony. By 48 G. 3. c. 144. § 1. reciting that whereas the provisions of the 31 G. 3. c. 51. have been found inadequate to the protection of the oyster fisheries of this kingdom; and 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; it is enacted, 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 fishery, being the property of any person or body politic or corporate, and sufficiently marked out as such, shall be deemed guilty of felony, and be transported for (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 (not exceeding) three years, as the court before whom any such person shall be convicted may adjudge. But by § 2. nothing in this act contained shall make liable any person to the penalties of this act who shall take or carry away any oyster or oyster brood from any oyster bed, oyster laying, or oyster fishery, wherein such person shall have or claim to have a right to take and carry away such oysters, or oyster brood. And by § 3. reciting that whereas doubts may arise in what indictments, and parish or county any oyster beds, layings, or fisheries are situated, where the county and on that account difficulties may occur in bringing offenders to 48 G. 3. c. 144. cannot be ascertained, the offence may be justice; it is further enacted, that it shall be sufficient in any indictment under this act, or under the said recited act to describe, either by name or otherwise, the bed, laying, or fishery in which the offence shall have been committed, without stating the same to stated to be in be in any particular parish; and where the offence is committed on the county the border of any county, so as to make it difficult to ascertain the where offence county, such offence may be stated to have been committed in the committed. county in which the indictment shall be preferred, being either the county in which the offence was committed or the adjoining county. And by § 4. it shall be lawful for justices for towns corporate, Justices for or other places not being counties of themselves, and having spetowns, &c. may act as justices cial or exclusive jurisdictions, to act in all cases arising within their for counties. respective jurisdictions in like manner as any justice of the peace for any county, riding, or division may act for such county, riding, or division, in the execution of the said recited act, or of any law for protecting the oyster fisheries, and broods of oysters. And by 5., this act shall not repeal any of the provisions of the said 31 G. 3. c. 51. except so far as the same respect the stealing and taking of oysters from any oyster bed, laying or fishery. V. Rules concerning fishing in or near the sea. Provisions of 31 G. 3. c. 51. not to be repealed by this act. 9 G. 2. c. 33. By 9 G. 2. c. 33. § 4. no person shall take, kill, or destroy any lobsters on the coast of Scotland from June 1 to Sept. 1, on pain of Lobsters. 51.; to be recovered by any person who shall inform and sue for the same, on a summary complaint, before two justices of the shire on the coast where the offence shall be committed. wear. By 3 J. c. 12. § 2. every person who shall set up any new 3 J. c. 12. wear along the sea shore, or in any haven, harbour, or creek, or Erecting a new within five miles of the mouth of any haven or creek, shall, on conviction before one justice or mayor, forfeit for every offence 107., half to the king, and half to him that shall sue, to be levied by the constables or churchwardens by distress. § 2. Every person who shall willingly take, destroy, or spoil any Spawn of sea spawn, fry, or brood of any sea-fish, in any wear or other engine or fish. device whatsoever, shall forfeit for every offence 107. in like manner. This provision appears to be confined to floating, and does not comprehend shell fish. Bridger q. t. v. Richardson, 2 M. & S. § 568. Action, q. t. to recover a penalty of 10. under this statute for willingly, with a certain engine called a dredge, taking in Chichester harbour three gallons of oyster fry and spat, the same being sea-fish, and then of a size unfit for food; 2d. count for a similar penalty, for willingly, with a certain other engine called a drag, taking 100 bushels of spawn, and 100 bushels of brood of sea-fish, to wit, of oysters, the same being sea-fish. At the trial, at Sussex Lent assizes 1814, it was proved that the defendant, who was a Col chester fisherman, took the brood in question for the purpose of carrying them to Colchester, to be laid down there on private lands for further growth and maturity, and to make them marketable. The counsel for the defendant objected, 1st, that the taking must be with intent to destroy, the contrary of which was proved; 2dly, that the act of parliament applied only to floating fish; upon which a verdict was taken for the plaintiff for one penalty of 10. on the Bridger, q. t. v. Richardson, 2 M. & S. 568. 3 J. c. 12. Size of nets at sea. I G. 1. st. 2. c. 18. Size of sea fish. 33 G. 2. c. 27. 42 G. 3. c. 22. Ships proceeding to the whale fishery. suit. Accordingly a rule was obtained for that purpose, and the court of K. B., after long and elaborate arguments by counsel on each side, held the case not to fall within the comprehension of the statute, for the taking could not be penal when the object was to preserve and not to destroy. § 2. And every person who shall fish in any haven, harbour, or creek, or within five miles of the mouth of any haven, harbour, or creek of the sea, with any draw net, or drag net under three inches mesh, viz. 1 inch from knot to knot (except for the taking of smoulds in Norfolk only,) or with any nets with canvas, or other engine or device, whereby the spawn, fry, or brood of sea fish may be destroyed, shall in like manner forfeit such net, and also 10s. for every offence, half to the poor, and half to him that shall sue. §3. But this act shall not extend to any net of lesser mesh only for taking herrings, pilchards, sprats, or lavidnian. By 1 G. 1. st. 2. c. 18. and by a subsequent statute, if any person shall use at sea on the English coast any traul net, drag net, or set net for catching any fish (except herrings, pilchards, sprats, or lavidnian) which hath the mesh less than 34 inches from knot to knot; or which hath a false or double bottom, cod, or pouch; or shall put any net upon or behind another, in order to catch or destroy the small fish which would have passed through any single net of 34 inches mesh, he shall on conviction (after summons) before one justice where the offender resides or shall be found, on oath of two witnesses, in one month after the offence, forfeit the same, and also 201, half to the informer, and half to the poor; to be levied by distress; for want of sufficient distress, to be committed to gaol for twelve months; and the nets by warrant of such justice to be burned. Persons aggrieved may appeal to the next sessions. By the same act of 1 G. 1. st. 2. if any person shall bring to shore, or expose to sale, or shall exchange for any other goods, matter, or thing, any fish less than the following sizes from the eyes to the extent of the tail, viz. bret or turbot 16 inches, brill or pearl 14, codlin 12, whiting 6, bass and mullet 12, sole 8, place or dab 8, flounder 7; he shall forfeit the fish to the poor, and also 20s. half to the informer, and half to the poor; to be levied in the like manner; for default of payment or of sufficient distress, to be sent to the next house of correction, or other common gaol or prison of the county, city, town, or place to be severely whipped and kept to hard labour six days, and not longer than 14. Persons aggrieved may appeal to the next sessions. The prosecution must be within one month. But by the 33 G. 2. c. 27. § 11. bret or turbot, brill or pearl, although under the said dimensions, may be exposed to sale, so as the same be not sold by retail for above 6d. a pound. And if any greater price shall be demanded or taken, or such fish shall not be weighed and measured, if required, the same shall be forfeited, and the offender shall also forfeit 20s., to be recovered, mitigated, and applied as the penalties in the said act mentioned under the last head relating to the spawn of fish, and fish under size, and out of season; and the money paid shall be returned to the party who paid the same. By 42 G. 3. c. 22. § 4. after reciting that, whereas by 26 G. 3. c. 41. § 1. it is enacted, that before any vessel proceed on the Whale Fishery, oath shall be made by the owner and the master or chief officer of the vessel before the principal officers of the customs of the port from which such vessel intends to proceed, that it is 42 G. 2. c. 22. really and truly their firm purpose and determined resolution that such vessel shall, as soon as license shall be granted, forthwith proceed on a voyage to the Greenland Seas, or Davis's Straits, or the seas adjacent, and there in the approaching season use the utmost endeavours of themselves and ship's company to take whales or other creatures living in the sea, and on no other design or view of profit in such voyage, and to import the whale fins, oil, and blubber thereof into Great Britain; in case of absence from illness or other unavoidable circumstances, such officers may accept an affidavit thereof sworn by such owner or owners before any justice, in which affidavit shall be declared every matter and thing which by the said recited act such owner is required to declare. VI. Importing fish. By 18 C. 2. c. 2. if any ling, herring, cod, or pilchard, salmon, eels, or congers, taken by foreigners, shall be imported or exposed to sale; any person may seize the same, half for himself, and half for the poor. And by the 1 G. 1. st. 2. c. 18. and 9 G. 2. c. 33. no fish taken by or received of any foreigner, except protestants inhabiting in England, shall be imported (except eels, stock fish, anchovies, sturgeon, botarge, or cavear, lobster, and turbot,) on pain of 1001. and the master of the vessel 501.; half to the poor, and half to the informer who shall sue in 12 months in any of the courts at Westminster. For fishing, so far as the salt duties are concerned therein, may be consulted that part of the title Ercile, which treateth of the duties upon salt. The fish markets in London and Westminster are regulated by the statutes of 22 G. 2. c. 49., 29 G. 2. c. 39., 33 G. 2. c. 27., 2 G. 3, c. 15., and 42 G. 3. c. 19., which are not of sufficient general interest to be here inserted. 18 C. 2. c. 2. May be seized. 1 G. 1. st. 2. G. 2. c. 33. Penalty 100. A. Information for stealing fish from a pond in an inclosed park, &c. on 5 G. 3. c. 14. § 1. day of County of BE it remembered, that on the within six calendar months now last pust, to wit, on &c. at the parish of — in the county of Stafford aforesaid, unlawfully did enter into a certain park (or paddock) then and there fenced in and inclosd called G. park of and belonging to him the said A. I. (or into a certain "garden,' "orchard," or "yard" " adjoining" or " belonging" to a certain dwelling-house) of and belonging to him the said A. I. esquire, (as the fact may be) in which said park there then was a certain pond of water, and then and there, to wit, on the said day of &c. at, &c. did steal, take, kill, destroy, and carry away |