he shall on conviction by the justice forfeit and pay, over and Fences, Gates, above the value of the article or articles so found, any sum not Stiles, Wood, &c. exceeding £. 2.

MALICIOUS INJURIES ACT.

7 & 8 Geo. 4, c. 30.

7 & 8 G. 4, c. 29.

7 & 8 G. 4, c. 30

Sect. XXIII. And be it enacted, That if any person shall Destroying, &c. unlawfully and maliciously cut, break, throw down, or in any- any fence, wall, wise destroy any fence of any description whatsoever, or any stile, or gate. wall, stile or gate, or any part thereof respectively, every such offender, being convicted before a justice of the peace, shall for the first offence forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding £. 5, as to the justice shall seem meet; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term, not exceeding twelve calendar months, as the convicting justice shall think fit; and if such subsequent conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped, after the expiration of four days from the time of such conviction.

Note.-Stealing fences, &c. incurs a penalty of £. 5. under this Act, over and above the mischief done, or value of the thing stolen, and a second offence is punishable with imprisonment not exceeding twelve calendar months, with whipping, if the conviction take place before two justices.

The like penalties are prescribed against such as destroy a wall, stile, fence or gate.

Persons having wood found in their possession of two shillings value, by virtue of a search warrant, are to pay £. 2. over and above the value of the wood, unless they satisfy the magistrate of their having come lawfully by the same.

Fish & Fishers.

7 & 8 G.4, c.29. Taking fish in any water situate in land belonging to a dwelling-house;

in any private fishery elsewhere.

FISH AND FISHERS.

The 22 & 23 Car. 2, c. 25, except s. 1 to 3; 4 Wm. & Mary, c. 23, s. 7; 9 Geo. 1, c. 22; 5 Geo. 3, c. 14, repealed by 7 & 8 Geo. 4, c. 27.

LARCENY ACT.

7 & 8 Geo. 4, c. 29.

Sect. XXXIV. And be it enacted, That if any person shall unlawfully and wilfully take or destroy any fish in any water which shall run through or be in any land adjoining or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be punished accordingly; and if any person shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as aforesaid, but which 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 £. 5, as Provision re- to the justice shall seem meet: Provided always, that nothing specting anglers. hereinbefore contained shall extend to any person angling in the day time; but if any person shall by angling in the day time unlawfully and wilfully 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 £.5; and if in any such water as last mentioned, he shall, on the like conviction, forfeit and pay any sum not exceeding £. 2, 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.

Sect. XXXV. And be it enacted, That if any person shall Fish & Fishers. at any time be found fishing against the provisions of this Act, it shall be lawful for the owner of the ground, water or 7 & 8 G. 4, c.29. fishery where such offender shall be so found, his servants or The tackle of any person authorized by him, to demand from such offender fishers may be seized. any rods, lines, hooks, nets or other implements for taking or destroying fish, which shall then be in his possession, and in 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 Angler, on against the provisions of this Act, from whom any implements seizure of his used by anglers shall be taken, or by whom the same shall be tackle, exempt delivered up as aforesaid, shall by the taking or delivering from penalty. thereof be exempted from the payment of any damages or penalty for such angling.

Note.-Fish kept in a trunk, net or other inclosed place, remain still as at common law, the subjects of larceny. But the capital felony of taking fish out of a pond or river, the parties being armed and disguised, is abolished. And the punishment of seven years transportation for taking fish from a garden, park, paddock, &c. is changed for the ordinary penalties of a misdemeanor.

The clear wording of the new enactment will probably avoid some difficulties which formerly arose; as, for example, with respect to the particular place where the fish were bred and preserved, &c. See Russ. & Ryan, C. C. Rer v. Caradice, 205; and East. P. C. 611. Hunsdon's case.

The measures of punishment seem to be as follow:

For taking fish, by day or night, or attempting to take from water adjoining or belonging to a dwelling-house, the penalties of a misdemeanor.

For taking, or attempting to take it, by day or night, from other private water, £. 5. penalty,

For taking the fish by day, or attempting to do so by angling in water adjoining to a dwelling-house, as first mentioned, £.5. penalty.

For angling in like manner in other private water, £.2. penalty.

Fish & Fishers.

Indictment for taking Fish.

to wit.

7&8 G. 4, c. 29. Hertfordshire, The jurors for our lord the King upon their Joath present, that A. late of the parish of in the county of labourer, on, &c. with force and arms, at, &c.* in the county of certain fish, to wit, ten carp, of the value of five shillings, ten trouts, of the value of five shillings, and ten perch, of the value of five shillings, in certain water running through a certain paddock [or, close] adjoining to the dwelling-house of the said B. then and there being, the said B. being then and there the owner of the said water, did unlawfully and wilfully take and carry away, against the form of the statute in that case made and provided, and against the peace of our said lord the King, his crown and dignity.

Second count: And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. on the day and year aforesaid, with force and arms, at aforesaid, in the

county aforesaid, ten other carp, of the value of five shillings, ten other trouts, of the value of five shillings, and ten other perch, of the value of five shillings, in certain water running through a certain other paddock [or, close] belonging to the dwelling-house of the said B. then and there being, the said B. being then and there the owner of the said last-mentioned water, did unlawfully and wilfully take, against the form, &c. [conclude as before.]

Third count: For destroying the fish.

Fourth count: Stating the fish to have been taken in water adjoining to a dwelling-house of a person having a right of fishery, if such be the case.

Evidence.

In this case the proprietor must show that the water from whence his fish were taken, corresponds with that stated in the indictment; namely, as attached or adjoining to the dwellinghouse. He must prove his ownership of the dwelling-house, and also of the water, or he must establish a right of fishery in the water. Then the taking or destroying of the fish must be proved to have been done by the defendant.

E

FISHPONDS.

Fishponds.

The 3 Edw. 1, c. 2 & 20; 31 Hen. 8, c. 2; 37 Hen. 8, c. 6; 5 Eliz. c. 21; 9 Geo.1, c. 22, repealed by 7 & 8 Geo. 4, c. 27.

MALICIOUS INJURIES ACT.

7 & 8 Geo. 4, c. 30.

7&8 G, 4, c. 30.

Sect. XV. And be it enacted, That if any person shall un- Breaking down lawfully and maliciously break down or otherwise destroy the the dam of a dam of any fish-pond, or of any water which shall be private fishery, &c. or mill-dam. property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or shall unlawfully and maliciously put any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish therein, or shall unlawfully and maliciously break down or otherwise destroy the dam of any mill-pond, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment.

Note.-Another capital felony is here commuted for transportation.

The words "with intent to take or destroy," seem to avoid the difficulty in Ross's case, East, P. C. 1067, where the judges held, that as the prisoner's object was to steal the fish, he could not be convicted upon an indictment charging him with breaking down the mound of a fishpond, whereby the fish were lost and destroyed.

Indictment for breaking down the Dam of a Fishpond, &c. Wiltshire, The jurors for our lord the King, upon their oath to wit. present, that A. late of the parish of

in the