A. D. at These are to command you the said constable, in her Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the said common gaol, the body of C. D. charged this day before me the said justice, on the oath of A. B. of and others, for that he the said C. D., on the day of the parish of in the said county, unlawfully and wilfully did take [or destroy] a number of fish, to wit, ten pike, in a stream of water running through [or, being inland (adjoining or belonging to the dwelling-house of one A. B., situate in the parish aforesaid and county aforesaid, the said A. B. being also then and there the encer of the said water [or, having a right of fishery in the said water], against the form of the statute in such case made and provided. And you, the said keeper, are hereby required to receive the said C. D. into your custody in the same common gaol, and him there safely to keep until he shall be thence delivered by due course of law. Herein fail you not. Given under my hand and seal the in the day of, in the year of our Lord, 1. Offences relating to private fisheries. water, in land house. belonging to a for the like offence. The jurors for our lady the Queen upon their oath present, that C. D., late (2). Indictment to wit of the parish of in the county of -, labourer, on the day of year of the reign of our lady the now Queen Victoria, at the parish aforesaid, in the county aforesaid, in certain water, to wit, a stream [or "pond"] of water there situate, then and there [running through and] being in certain land, to wit, a garden [or pleasure ground, &c., according to the fact], adjoining [or belonging] to the dwelling-house of one A. B. there, the said A. B. then and there having a right of fishery in the said water [or, if not a running stream, "owner of the said water"] divers, to wit, twenty fish called eels, of the value of five shillings ; twenty fish called pike, of the value of five shillings; then and there being found in the said stream of water [or pond], unlawfully and wilfully, and not by angling in the day time, did take [or destroy] against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. [Add other counts, if there be any doubt, or any fact necessary to be stated in the indictment.] ? Be it remembered, that, on &c., gt &c., C. D. of &c. is convicted before to wit. me, J. P., one of her Majesty's justices of the peace in and for the said county, for that the said C. D., on, &c., at the parish &c., in a certain pond [or stream] of water there situate, the private property of A. B. [or, wherein 4. B. then and there had a private right of fishery] the said water not then being water running through or being in any land adjoining or belonging to any dwelling-house of the said A. B., ten fish, called trout, [according to the fact] of the value of ten shillings, then and there being found, then and there in the said water unlawfully and wilfully did take [or destroy, or attempt to take, or attempt to destroy,] otherwise than by angling; against the form of the statute in that case made and provided: 1, the said J. P., do therefore adjudge the said C. D., for his said offence, to forfeit and pay the sum of [five] pounds [over and above the value of the said fish so taken as aforesaid, and the further sum of [ten shillings], being the value of the said fi-h], and also to pay the sum of - shillings for costs; and, in default of immediate payment of the said sums, to be imprisoned in the - [and there kept to hard labour] for the space of - [see ante, 51] calendar months, unless the same sums shall be sooner paid; and I direct that the said sum of five pounds shall be paid to J. S., [see s. 66, ante, p. 53, n.] of - aforesaid, in which the said offence was committed, to be by him applied according to the direction of the statute in that case made and provided; and that the said sum of ten shillings shall be paid [to the said A. B., or, if he have been examined in proof of the offence, then thus: also to the said J. S., the said A. B. having been examined in proof of the offence aforesaid; and I order that the said sum of shillings for costs shall be paid is (the complainant]. Given under my hand and seal, the day and year first above mentioned. * J. P. * If time be given for payment of the penalty, &c., the form should be the same as the above to the asterisk]-for costs; and I order that the said sums shall (a) The 71st section of the act pre- and warrant, see "Conviction," Vol. I. scribes the formal parts of this conviction. For the usual forms of summons "Warrant," Vol. VI. (3). Convictions on 7 & 8 Geo. 4, taking fish in water, &c. not being in land longing to a dweladjoining or beling house of owner (a). c. 29, s. 34, for 1. Offences relating to private fisheries. (4). Conviction on 7 & 8 Geo. 4, c. 29, 8. 34, for angling to dwelling-house of owner (a). be paid by the said C. D., on or before the day of -next; and I direct that the said sum of five pounds shall be paid to J. S., of, &c., as in the above form, to the end. Be it remembered, that, on &c., at &c., C. D. of &c., is convicted before to wit.me, J. P., one of her Majesty's justices of the peace in and for the said county; in water belonging for that the said C. D., on &c., about the hour of eleven in the forenoon of the same day, at the parish of in the county aforesaid, in a certain stream [or pond] of water there situate, then and there running through [or being in] certain land, to wit, a [garden] adjoining [or belonging] to the dwelling-house of one A. B. there, the said A. B. then and there having a right of fishery in the said water [or, if not a running stream, being owner of the said water], ten fish, called trout, [as the case is,] of the said A. B., of the value of ten shillings, then and there being found, then and there in the said water, by angling, unlawfully and wilfully did take [or destroy, or attempt to take, or attempt to destroy;] against the form of the statute in that case made and provided: I, the said J. P., do therefore adjudge the said C. D. for his said offence, to forfeit and pay the sum of [five] pounds, and also to pay the sum of- shillings for costs; and, in default of immediate payment, to be imprisoned in the —, [and there kept to hard labour] for the space of [see ante, 51] calendar months, unless the said sums shall be sooner paid; and I direct that the said sum of five pounds shall be paid to J. S. [see s. 66, ante, p. 53, n. (a)] of - aforesaid, in which the said offence was committed, to be by him applied according to the directions of the statute in that case made and provided; and I order that the said sum of shillings for costs shall be paid to - [the complainant]. Given under my hand and seal the day and year first above mentioned. (5). Conviction on elsewhere. J. P. *If time be given for payment of the penalty, &c., the form should be the same as the above, to the asterisk]-for costs; and I order that the said sums shall be paid by the said C. D. on or before the · day of · next; and I direct that the said sum of five pounds shall be paid to J. S., of, &c. as in the above form, to the end. Be it remembered, that, on &c., at &c., C. D. of &c., is convicted before like act for angling to wit. me, J. P., one of her Majesty's justices of the peace for the said county, for that he, the said C. D., on &c., about the hour of eleven in the forenoon of the same day, at the parish of - —, in the county aforesaid, in a certain pond [or stream] of water there situate, the private property of A. B., [or wherein A. B. then had a private right of fishery] the said water not then being water running through or being in any land adjoining or belonging to the dwelling-house of the said A. B., or any person being the owner of such water, or having a right of fishery therein, ten fish, called trout [according to the fact], of the value of ten shillings, then and there being found, then and there, in the said water, by angling, unlawfully and wilfully did take [destroy, or attempt to take or destroy], against the form of the statute in that case made and provided. I, the said J. P., do therefore adjudge the said C. D. for his said offence, to forfeit and pay the sum of two pounds, &c., as in the preceding form, to the end. Breaking down or destroying fishponds, &c.; 3. DESTROYING, AND PUTTING NOXIOUS MATERIALS INTO PONDS, &c. By stat. 7 & 8 Geo. IV. c. 30, s. 15, “If any person shall unlawfully and maliciously break down or otherwise destroy the dam of any fishpond, or of any water which shall be private 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 or putting noxious 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, 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 materials into same; or destroying millponds; a misdemeanor. or shall (a) The 71st section of the act prescribes the formal parts of the above conviction. court, to be transported beyond the seas for the term of seven years, or By the 27th sect. solitary confinement may be added to the punishment of imprisonment. By the 7 Will. IV. & 1 Vict. c. 90, s. 5, such confinement must not exceed one month at any one time, nor three months in any one year. The provision in the above act as to putting noxious materials into fish-ponds, &c., and breaking down the dams of mill-ponds, is not to be found in prior acts. The stat. of 7 & 8 Geo. IV. c. 30, in some respects differs importantly from the prior act 9 Geo. I. c. 22; this offence, under the stat. 9 Geo. I. e. 22, must have been proved to have been committed from malice to the owner of the water; and therefore, where it appeared, that the defendant had broken down the mound of a fish-pond, in order to steal the fish, the judges held that it was not an offence within the statute. (Rex v. Ross, 2 East's P. C. 1067; Russ. & R. 10, S. C.) But this is not required by the 7 & 8 Geo. IV.; under this act the offence must be proved to have been done maliciously; but whether from malice to the owner, or otherwise, is immaterial and it is sufficient if it be done with intent to take or destroy the fish, or so as thereby to cause the loss or destruction of them. day of [Commencement as ante, p. 54, form (No. 1)] on the A. D. at the parish of in the said county, the dam of a certain fish-pond, [of any fish-pond, or of any water which shall be private property, or in which there shall be a private right of fishery,] of one A. B., there situate, unlawfully or maliciously did break down [or destroy] with intent thereby then and there to take and destroy the fish in the said pond [or, and did thereby then and there cause the loss and destruction of divers of the fish in the said pond]; against the form of the statute in that case made and provided. And you, the said keeper, &c. [Conclude as ante, p. 55, form (No. 1).] 1. Offences relating to private fisheries. Seven years' transportation, or imprisonment. (1). Commitment for breaking the dam of a fish-pond. A. D. (2). The like for into it. Commencement as ante, p. 54, form (No. 1)] on the day of at the parish of - in the said county, unlawfully and maliciously, did put putting lime &c. a large quantity of lime [lime or other noxious material] into a certain fishpond any fish-pond, or any water which shall be private property, or in which there shall be a private right of fishery,] of one A. B., there situate, with intent thereby to destroy the fish in the said pond; against the form of the statute in that case made and provided. And you, the said keeper, &c. [Conclude as ante, p. 55, form (No. 1).] -- (to wit). The jurors for our lady the Queen upon their oath present, that C. D., late of the parish in the county of —, labourer, on the day of in the year of the reign of our lady the now Queen Victoria, with force and arms, at the parish aforesaid, in the county aforesaid, the dam of a certain fish-pond of one 4. B. there situate, then and there unlawfully and maliciously did break down [or destroy] with intent thereby then and there to take [or destroy] the fish in the said pond then and there being, [or and did thereby then and there cause the loss and destruction of divers of the fish in the said pond then and there being], against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. [If there be any doubt as to the water being a fish-pond, insert a count according to the fact, showing it to be "water (a) The stat. 7 & 8 Geo. IV. c. 27, repeals the prior acts relative to this offence, viz. the stat. 5 Eliz. c. 21, the 9 Geo. I. c. 22, and the stat. 4 Geo. IV. (3). Indictment for breaking the dam of a fish-pond. 2. Laws for the preservation of the brood of salmon, &c. (4). Indictment for under same section other offences of the act. the private property of A. B.," or, "water in which A. B. had a private right of fishery."} The above precedent may be framed to meet any other of the offences mentioned in the 15th section of the 7 & 8 Geo. IV. c. 30, stating, that the defendant did put a large quantity, to wit, one bushel of lime, &c., ["lime, or other noxious material,"] into a certain fish-pond, ["any fish-pond, or any water," &c.,] (as above), of A. B. there situate, with intent thereby then and there to destroy the fish in the said pond then and there being, [or did break down and destroy the dam of a certain mill-pond of the said E. F., there situate, &c.] Statutes for the protection &c. of the brood of fish in general. 17 Rich. 2, c. 9. 1 Eliz. c. 17. II. Laws for the Preservation of the Brood of Salmon, and other Fish in Rivers. Concerning the preservation of salmon in particular rivers, see the statutes referred to, ante, p. 49. The stat. 13 Rich. II. st. 1, c. 19, enacts, that no person shall put in the waters of Thamise, Humber, Ouze, Trent, nor any waters, in any time of the year, any nets called stalkers, nor other nets or engines whatsoever, by which the fry or breed of salmons, lampreys, or any other fish, may in anywise be taken or destroyed; on the like pain. The waters of Lone, Wyre, Mersee, Rybbyl, and all other waters in Lancashire, shall be put in defence as to taking of salmon from Michaelmas to Candlemas, and in no other time of the year. And conservators shall be appointed in like manner. By the 17 Rich. II. c. 9, the justices of the peace (and the mayor of London on the Thames and Medway) shall survey the offences in both the acts above mentioned; and shall survey and search all the wears in such rivers, that they shall not be very strait for the destruction of such fry and brood, but of reasonable wideness after the old assize used or accustomed; and they shall appoint under-conservators, who shall be sworn to make like survey, search, and punishment. And they shall inquire in sessions, as well by their office as at the information of the under-conservators, of all defaults aforesaid, and shall cause them which shall be thereof indicted to come before them; and if they be thereof convict, they shall have imprisonment, and make fine at the discretion of the justices; and if the same be at the information of an under-conservator, he shall have half the fine. The stats. 13 Rich. II. st. 1, c. 19, and 17 Rich. II. 2, c. 9, are still in force; and the spawn of oysters, called oyster-spat, is within their provisions. (Maldon (Mayor, &c.) v. Woolvet, 12 Ad. & E. 13; 4 P. & D. 26, S. C.) Therefore, dredging for oyster-spat in a common navigable river is illegal. (Id.) Where the declaration was in trespass quare clausum fregit; plea, that the locus in quo was part of a common navigable river in which the public had a right to fish, and that defendant entered to fish for oyster-spat: replication, that oyster-spat was the spawn or young brood of oysters, unfit for the food of man; rejoinder, that the public had a right of fishing for oyster-spat in a public river:-The rejoinder was held, ill, on demurrer. (1d.) Quære, if the defendant had pleaded that he took the oyster-spat for the purpose of bringing it to perfection? By the 1 Eliz. c. 17, s. 1, 2, 3, 4, 5, no person, of what estate, degree, and condition soever he be, shall take and kill any young brood, spawn, or fry of fish; nor shall take and kill any salmon or trouts, not being in season, being kepper or shedder; nor any pike or pikerel not being in length ten inches fish or more; nor any salmon not being in length sixteen inches fish; nor any trout not being in length eight inches fish; nor any barbel not being in length twelve inches: and no person shall fish, or take fish by any device, but only with net or trammel, whereof the mesh shall be two inches and a half broad (angling excepted, and except smelts, loches, minnies, bullheads, gudgeons, and eels); on pain of forfeiting 208. (a) for every offence, and also the fish, nets, and engines. In Bulbrooke v. Goodhere, 3 Burr. 1768, it was held, that the water bailiff of the river Thames has no right to take the nets of a person fishing in his own fishery, for the act does not give a power to seize otherwise than by the methods prescribed by the act. Sects. 6, 7. And the conservators of rivers may inquire hereof by a jury; and in such case they shall have the fines. Sects. 8, 9, 10. The leet also may inquire hereof; and then the forfeiture shall go to the lord of the leet. And if the steward do not charge the jury therewith, he shall forfeit 40s.; half to the King, and half to him that shall sue. And if the jury conceal the offence, he may impanel another jury to inquire of such concealment; and if it be found, the former jury shall forfeit every one 20s. to the lord of the leet. Sects. 11, 12. If the offence be not presented in the leet within a year, then it may be heard and determined at the sessions or assizes. (Saving the right of the conservators). 2. Laws for the preservation ofthebrood of salmon, &c. By the 33 Geo. II. c. 27, s. 13, 15, 16, 17, 18, 19, no person shall take 33 Geo. 2, c. 27. or knowingly have in his possession, either in the water or on shore, or sell or expose to sale, any spawn, fry, or brood of fish, or any unsizeable fish, or fish out of season, or any smelt not five inches long; and any person may seize the same, together with the baskets and package, and charge a constable or other peace officer with the offender and with the goods, who shall carry them before a justice; and on conviction before such justice, the same shall be forfeited and delivered to the prosecutor; and the offender shall besides forfeit 20s., to be levied by distress by warrant of such justice, and distributed, half to the prosecutor, and half to the poor of the parish where the offence was committed (and any inhabitant of such parish, nevertheless, may be a witness); for want of sufficient distress, to be committed to the house of correction to be kept to hard labour for any time not exceeding three months, unless the forfeiture be sooner paid: Provided, that the justice may mitigate the said penalty, so as not to remit above one-half. Persons aggrieved may appeal to the next sessions. And the form of the conviction may be thus: day of, in the "Be it remembered, that, on this year of the reign of ——, A. O. is convicted before me —, one of her Majesty's justices of the peace for the of —, and I do adjudge him to pay and forfeit the sum of —. Given under my hand and seal the day and year above said." -. And by the 2 Hen. VI. c. 15, no person shall fasten any nets over rivers, to stand continually day and night, on pain of 100s. to the King. The 58 Geo. III. c. 43, intituled," An Act for preventing the Destruction of the Breed of Salmon, and Fish of Salmon Kind, in the Rivers of England," contains general regulations extending to all rivers throughout England, for the preservation of salmon. By sect. 1, after reciting, that "provision has been made, in various arts of Parliament, for preventing the destruction of salmon, and other fish of the salmon kind, in the several rivers in England named therein, and in estuaries and arms of the sea near the mouths of the said rivers; and it would be of great public advantage if such protection should be afforded generally in all rivers throughout England," it is enacted, "That from and after the passing of this act, it shall be lawful for the justices of the peace, assembled at any general or quarter sessions of the peace, from time to time to appoint conservators or overseers for the preservation of the salmon, and fish of the salmon kind, and the brood, spawn, and fry thereof, and preventing the destruction thereof, and enforcing (4) In some editions of the statutes it is 207., in others 208.; in the record it is not distinguishable whether it be VOL. III. pounds or shillings. The latter seems E 6* For preserving the Justices at sessions vators of rivers. |