CHAPTER VIII FISHERY ACTS THE statutes known as the 5 & 6 Vict. c. 106; 7 & 8 Vict. c. 108; 8 & 9 Vict. c. 108; 9 & 10 Vict. c. 114; 11 & 12 Vict. c. 92; 13 & 14 Vict. c. 88; 32 & 33 Vict. c. 92; 39 & 40 Vict. c. 75; 51 & 52 Vict. c. 30; 54 & 55 Vict. c. 20; 62 & 63 Vict. c. 50; 1 Edw. VII. c. 28 constitute generally the Fishery Code of Ireland. In addition to these the Larceny Act (24 & 25 Vict. c. 96), ss. 24, 25, 31, and the Malicious Injuries Act (24 & 25 Vict. c. 97), s. 32, also apply in certain cases. Procedure. The procedure contained in the Petty Sessions Act (Ireland) is to be followed generally. Upon the complaint, verbal or otherwise.-[Sect. 94 (5 & 6 Vict. c. 106)]. -A summons should in every case be issued. Two magistrates may determine complaints out of Petty Sessions when the offender is unable to give bail for his appearance at Petty Sessions (Petty Sessions Act, sect. 8, sub-sect. 2). Service of summons.-(Sect. 94.)—The service of summons here prescribed is sufficient (Conner and Farran, Fisheries Acts). It differs in some respects from that required by Petty Sessions Act, sect. 12 (3). Costs of conviction.-(Sect. 94.)-See Hosford v. Devine, [infra (1898), 2 I. R. 29.] An exact sum must be specified for costs, and this sum should be fixed and ascertained by the magistrate himself. Sect. 94. And it shall be and may be lawful to and for such justice or justices to order the offender so convicted to be detained in safe custody," &c. This provision is not contained in the Petty Sessions Act, but there appears to be nothing in that Act inconsistent with it (Conner and Farran). The Small Penalties Act (36 & 37 Vict. c. 82, s. 4) makes the exercise of this power unnecessary where the penalty does not exceed £5, as the offender may forthwith be taken into custody. Boundaries (13 & 14 Vict. c. 88, s. 47).—Where any offence is committed in or upon any lakes, rivers, or streams, forming the boundaries between Petty Sessions districts, such offences shall be prosecuted before any justice or justices in either of such districts, and in no other. Witnesses. An information or complaint before justices under the Fishery Acts is a criminal proceeding, and the defendant is not competent or compellable to give evidence. Fines and penalties.—(1) Sect. 19 (32 & 33 Vict. c. 92) provides that one-third of every sum of money levied as a fine, penalty, or forfeiture under the Fishery Acts is to be paid to the person who shall be the means of bringing the offender to justice, and the remainder is to be paid to the Board of Conservators of the district for the purpose of the Fishery Acts. This section now governs the application of every penalty under the Fishery Acts (Conner and Farran). Informer. The common informer having no interest apparently can prosecute in every case in which portion of the penalty is allotted to the informer [Gibson v. Fermanagh JJ. (1897), 2 I. R. 605]. (2) In the cases of sums levied by forfeiture and sale of illegal engines (s. 103, 5 & 6 Vict. c. 106), when no offender is personally brought to justice, the money is applied in the same way as in the case of other penalties. (3) The advisable course in fishery appeals where the person convicted has entered into a recognisance, is, for the Court of Appeal, instead of availing of the provisions of the Small Penalties Acts, to issue a distress warrant for all sums ordered to be paid, including penalty and costs, above and below; when if the offender has no goods on which the amount can be levied, the justices at Petty Sessions, when the original order was made, can estreat the recognisance to such amount as may be necessary (Conner and Farran, p. 102). Appeals. Sect. 51 of 13 & 14 Vict. c. 88 (concerning "fixed net," "wire," or "engine") proceeds: "Such appeal. . . shall be to the next going Judges of Assize at the Assizes to be held for the county," &c. Sect. 16 of 32 & 33 Vict. c. 92 (relating to fixed engines for the capture of salmon). .. proceeds: "Provided always that where the Court of Queen's Bench shall on appeal from the decision of the said commissioners," &c. It seems obvious that there are two different tribunals. In Hosford v. McAuliffe (29 I. L. T. R. 31, Co. Ct.), it was held that the appeal lay to Quarter Sessions, and this is doubtless the correct view. Title. The question of the ouster of justices' jurisdiction by a boná fide claim of title has been already treated. It has been pointed out there that a claim of right, however genuinely made, which cannot exist in law, does not oust the jurisdiction of justices. Such claims have arisen under the sections of the Larceny Act, 1861, above referred to, as well as under prosecutions under the Fishery Laws. Some instances may be noted where such claims could not avail. (1) A general public right of fishing cannot exist or be created in a river or lake where the tide does not ebb or flow (Hudson v. McRae, 4 B. & S. 585). Proof of uninterrupted custom for sixty years and upwards to fish by angling from a public footpath running along the river bank of a non-navigable and non-tidal river, the Wandle at Mitcham, in Surrey, did not support a claim on the part of the defendant, as one of the public, to fish in the river, nor oust the jurisdiction, as such a right could not possibly be acquired (Hudson v. McRae, supra). (2) The public have no right to fish in a river made navigable by Act of Parliament but not tidal (the Itchen in Southampton), although they have fished in it as of right for many years without interruption (Hargreaves v. Diddams, L. R. 10 Q.B. 582). (3) In Murphy v. Ryan (Ir. R. 2 C. L. 143), it was decided that the public cannot acquire by immemorial usage any right to fish in a navigable river, above the flow of the tide, and that the fishery belonged to the riparian owners, who could if they pleased, prohibit the public from any longer going there. In R. v. Burrow (34 J. P. 53), Cockburn, C.J., was not prepared to assent to this decision without further argument, and the conviction, which was for fishing in the Ullswater Lake, was quashed. In the subsequent case of Mussett v. Birch (35 L. T. 486), the Queen's Bench Division followed Murphy v. Ryan, and held that the case of Hargreaves v. Diddams, supra (in which R. v. Burrow and Murphy v. Ryan were both referred to), put an end to any doubt on the matter. Finally, in the case of Reece v. Miller (8 Q.B.D. 626), the point argued was whether the river Wye was tidal at the spot in question, but the Court, being of opinion that the river was not tidal there, affirmed the conviction for unlawful fishing, and held there was no claim of title set up sufficient to oust the justices' jurisdiction. 1. Appeal-recognisances.-If, on the appeal of several complainants, one only enters into the usual recognisances under 5 & 6 Vict. c. 106, s. 100, the appeal may go on as the appeal of such complainant (Crossfield v. Rogers and Gibson, 31 I. L. T. & S. J. 464). Co. Kerry JJ. 2. Adjournment. Where a complaint is part heard before several R. (Sheehy)". justices, and adjourned, and on the adjourned hearing one of the said justices alone attended and determined the case. It was held that it being a case where a single magistrate had statutory power to adjudicate in the first instance, the fact of the adjournment did not render it necessary for the case to be commenced de novo, or to be adjourned for the attendance of the other magistrates who had part heard the case. (The complaint was for a trespass upon a several fishery.) [R. (Sheehy) v. Justices of Co. Kerry, 30 I. L. T. R. 167.] The following matters have been decided : Jurisdiction of justices.-Sect. 103 of the Fisheries (Ireland) Act, 1842, provides that in case an officer authorised to do so shall seize any nets illegally used, it shall be lawful for him "to retain the same in his custody until the next sitting of the Petty Sessions Court or any adjournment thereof in the district where the same shall be seized, and at such Petty Sessions Court it shall be lawful for the justices to order the forfeiture of such nets." R. (Mackey) v. Sect. 106 of the same Act provides that "where any of the offences mentioned" in the Act shall be committed in or upon any lake or river forming the boundary between any two counties or sessional districts, "such offence may be prosecuted in either of such counties or districts, and may be alleged and stated to have been committed therein." On the night of January 3rd a water-bailiff of the Board of Conservators of the Limerick District seized certain nets that were being illegally fished in his eel weirs in the Shannon, and applied on January 18th to the justices sitting at Petty Sessions at Castle Connell for an order, and obtained an order for their forfeiture. The river Shannon at this point forms the boundary between the counties Clare and Limerick, and between the Petty Sessions Districts of Doonas (Clare) and Castle Connell (Limerick). A Court of Petty Sessions sat at Castle Connell on the 4th, and at Dornas on the 15th January. M. having applied to quash the order, it was held that the proceeding to procure a forfeiture was a "prosecution of an offence within sect. 106, that the words. "next sitting of the Petty Sessions Court" meant the next sitting at which it was reasonably practical to make the application, and that the justices sitting at Castle Connell on the 18th January had jurisdiction to make the order in question. It was also held that it was unnecessary for the justices to set out on the face of their order, that the Court was the Petty Sessions Court next sitting, or an adjournment thereof [R. (Mackey) v. Justices of Co. Limerick (1898), 2 I. R. 135]. Justices-Conviction.—Where the defendants were prosecuted for trespass to a several fishery under sect. 41 of 11 & 12 Vict. c. 92, and the justices apparently convicted under sect. 66 of 5 & 6 Vict. c. 106, and ordered the forfeiture of the nets that had been used, it was held that the conviction was bad on its face and should be quashed [R. (O'Sullivan and Hewson) v. Justices of Kerry, 35 I. L. T. R. 155]. Justices-Costs.-The general provisions of the Petty Sessions Act (Ireland), enabling justices to give costs not exceeding twenty shillings, does not repeal or limit the wider special powers conferred by 5 & 6 Vict. c. 106, s. 94; and 13 & 14 Vict. c. 88, s. 54, on justices at Petty Sessions of awarding to the successful party, in cases of complaint under the Fishery (Ireland) Acts, the costs, charges, and expenses of, and incident to, such complaints and the proceedings therein [Hosford (appellant)-Devine (respondent) (1898), 2 I. R. 28]. "Fixed engine."-The certificate of the Fishery Conservators, given pursuant to 26 & 27 Vict. c. 114, s. 6, affords no defence to a prosecution for erecting or using a fixed engine for fishing, contrary to 32 & 33 Vict. c. 92, s. 16, unless the fixed engine so erected or used is in "situation, size, and description" in conformity with the certificate [Hosford (appellant)-McAuliffe (respondent) (1903), 2 I. R. 1]. The liability of a master for the acts of his servant has arisen in many fishery cases, amongst others in the following: Fishery laws. (1) The appellant had been convicted at Petty Sessions by the R.M. (sitting alone), and fined £76, with £1 costs, for fishing in January for eels without a licence.. It being proved upon appeal that the defendant (appellant) had noticed his servants by letter against fishing in January for eels, it was held that after such notice he was not liable to be sued for their tort (Limerick Fishery Conservators v. Mackey, 30 I. L. T. R. 454). (2) The respondent, owner of an eel-weir in the upper Shannon, Hosford v. was prosecuted before justices under the Fishery (Ireland) Act, 1848, Mackey. sect. 22, for fishing same on 11th January, 1896, without first being duly licensed. He had in October, 1895, taken out the usual yearly licence for the weir, and contended that under this licence he was entitled to fish the weir until the end of the following fishing season, viz. the 31st of January following-the open season for eel-fishing in the upper Shannon, extending from the 1st July to the 31st January. The weir had been fished on the date in question by the respondent's servants, but the respondent proved to the satisfaction of the justices (who dismissed the case), that he was himself absent at the time, and had, before leaving, given express directions to his servants not to fish the weir after the 1st of January. On a case stated, it was held that the respondent was not liable for the illegal acts of his servants done contrary to his orders, and that the justices were correct in dismissing the complaint [Hosford (appellant)—Mackey (respondent) (1897), 2 I. R. 292]. Larceny Act, 1861 (24 & 25 Vict. c. 96).-The following are the sections of this Act which apply to offences against the Fishery Acts. Sect. 24.-"Whosoever shall unlawfully and wilfully take or destroy any fish in any water which shall run through, or be in any land adjoining to, or belonging to, the dwelling-house of any person being the owner of such water, or having a right of fishery therein, shall be guilty of a misdemeanour, and whosoever shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as herein before mentioned, but which shall be private property, or in which there shall be any private right of fishery, shall on conviction thereof before a justice of the peace forfeit and pay over and above the value of the fish taken and destroyed (if any), such sum of money not exceeding five pounds as to the justice shall seem meet provided that nothing herein before contained shall extend to any person on angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset; but whosoever shall, by angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, unlawfully and wilfully take or destroy, or attempt to take or destroy, any in any such water as first mentioned, 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 in this section before 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." (1) Fish includes crayfish (Cargill v. Thwaite, 23 W. R. 581). fish |