« ПредишнаНапред »
ery in a water, which prescription always supposes a grant precedent, the owner of the soil, as much as a stranger, is liable to an action if he fishes there : 2 Roll. 258. the case of Foriston and Cratchrode in the Common Pleas. Mich. 29 and 30 Eliz. But here the writ shall vary from that in the case of a several fishery, and demand “ wherefore the defendant, in the free fishery of the plaintiff, at N., without the licence and consent of the plaintiff, was fishing," &c. expressing the nature and number of the fish taken : but because the soil does not pass by such a grant, and the fish are fere natura, he shall not call them his fish, as in the former instance. See the case of Child and Greenhill, above cited.
The doctrine deducible from these principles is, that that which united with the soil would be a several fishery, when severed by grant, though the grant be of a several, or sole, and not of a free fishery in terminis, becomes a free fishery.
There is yet another case that I shall mention, which will give the intelligent reader a clear notion of this matter. A man grants to one, or more, a liberty of fishing :' here nothing but a naked right to fish passes, and the remedy against a trespasser is not severed from the soil ; the owner whereof, and not the grantee, may maintain an action, and may also fish himself. Co. Litt. 122. a.
As common of fishing may be appendant to land, so also there may be a joint-tenancy, or a tenancy in common of a fishery. 1 Inst. 186. b.
Having thus shewn in what cases the angler, in the
(1) I find in Dugd. Warm. 1142, in murgine, an account of the following grant, which for its singularity deserves notice.
31 Hen. III. “ Thomas de Clinton, of Aminton, levied a fine to Phil. Marmion, that he and his heirs, his wife, and their heirs, might, when they came to Tamworth, or to their castle at Middleton, fish with a boat any where in his water at Aminton, with one net, called a fleu-net, and a tramil and sayna : for which liberty he gave him six marks of silver.”
pursuit of his recreation, may become a trespasser, let us next consider how far he is, by taking fish, in danger of committing Larceny; for that the taking fish out of a pond without the consent of the owner,
falls within my Lord Coke's definition of that crime, no one can doubt that reads it. His words are, “ Larceny is the felonious, and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another; neither from the person nor by night in the house of the owner," 3d Inst. 107. and a little after, 109, he expressly says, “ Larceny may be committed of fishes in a pond.”
Now, though to make the taking any personal thing felonious, reason and the law require that the party should do it animo furandi, see Bracton, Lib. 3. fol. 150. Fleta, Lib. I. Cap. 36. which we will suppose no angler to be possessed with : yet whether by the word pond we are to understand ponds at large, is perhaps of some consequence for him to know.
It is a rule in law that personal goods, and things severed from the freehold, shall go to the executors, and not to the heir. Wentworth's Office of an Executor, Chap. 5. and so shall fish in a trunk, or the like, ibid. but Lord Coke, in his Commentary on Littleton, fol. 8, tells us, that fish in a pond shall go with the inheritance, because, says he, “they were at their liberty, and could not be gotten without industry, as by nets or engines.”
From hence we may conclude, that fish in ponds cannot be said to be mere personal goods; and then it follows as a consequence, that of such fish larceny cannot be committed: and we may further conclude that the word ponds, in the above passage, must mean only stew-ponds, cisterns, or other such small receptacles, of fish.
Many wholesome laws have, from time to time, been enacted, to prevent the destruction of fish: but they are so numerous, that I must refer the reader to the Statutes
at large, or to the Abridgment published by a late worthy and learned friend of mine, John Cay, Esq. deceased.
also see a Discourse on the laws concerning Angling, and for preservation of fish, at the end of the Angler's Sure Guide, written, as it seems, by the Author of that book, with the learning and accuracy of an able lawyer.
No. I. [Referred to from the end of Part I.] A Synopsis of AQUATIC Insects covering themselves with cases.
, being affixed (Round, with little threads ;
Flat, and mere compressbody either... Water insects
ed,without little threads. that cover
Or moveable, portable and migratory, called “phrygathemselves
nea," vulgo," a cad-case,” which is furnished with
little threads, as well on the back as the sides, by have a case
means whereof they adhere firmly to their cases, exeither....
cepting only their head and feet; with three small protuberances projecting beyond the feet, which they can erect or put forth at pleasure, to hinder their cases from pressing down on their heads as
they creep, and troubling them. -Straws ag
Parallel, The greater being two inches glutina- constitut. long. ted: and ing two Thelesser and most common, those ei- species; called straw-worms. ther.... Or transverse and shorter, with sometimes
small stones and shells intermixed. -round,with little worms within,called cod-bait
With somewhat larger stones adstraws
hering to the sides of the case, adhering Or flat
but never to the fore or back but small
part of it: whence it necessarily stones or
appears flat and compressed. fine sand;
Or with no stones adhering to the which
sides; but with a case extending are either
on each side into a narrow mareither
gin or border, like wings; and the case is more flat and com
pressed than the former. Or crooked, or rather resembling a horn: for the cases of these are crooked, and one extremity is larger, the other less. Of these I have known four different species, viz. the
black, large and small; and ash-colour, large and small. All these produce flies with large wings, like those of butterflies. The nymphæ of these (which are to spring from those small worms, and which like torsoises carry their houses about with them, within which they turn into nymphæ, from which nymphæ afterwards spring little flies,) Dr. Swammerdam refers to his fourth order of transmutations, whereas, in my opinion, they belong to the third, because they change their skin twice.
Another translation of this Synopsis, too copious to be here inserted, together with many curious particulars concerning Aquatic Insects, is to be found in the Natural History of Northamptonshire, by the Rev. John Morton, chap. 7.
And their cases are either
(Referred to from Part II. page 317, n.] FEBRUARY. PEACOCK HACKLE. Peacock's herl alone, or interchanged with ostrich herl; warping, red silk; red cock's hackle over all. It may be varied by a black cock's hackle and silver twist. Taken chiefly from nine to eleven in the morning, and from one to three in the afternoon.
This, and the several other hackles which we have here and hereafter described, being most tempting baits, should always be first tried when the angler comes to a strange
and not changed till he has found out, and is certain, what particular fly is upon the water.
MARCH. GREEN PEACOCK HACKLE. Greenish herl of a peacock; warping, green silk; a black hackle over all. Taken from eight to eleven in the morning.
AsiI-COLOURED Dun, Dub with the roots of a foxcub's tail; warp with pale yellow silk; wing, of the pale part of a starling's feather. Taken from eight to eleven, and from one to three.
This fly, which is also called the Violet Dun, and Blue Dun, is to be found on almost every river; some particulars of it have been mentioned in the note, Part II, p. 318; but here follow some observations on it, which deserve to be attended to. It varies much in its colour, according to the season of the year: in March and September it is called, and that very properly, the Violet Dun, for it has often that hue; and therefore in the passage above referred to we have directed the mixing blue-violet crewel with the fox-cub down. In April it assumes a pale-ash colour; and in May is of a beautiful lemoncolour, both body and wings. In June and July it is blueblack; and from July it insensibly varies, till it becomes of its primitive colour, violet dun, which it never fails to do by September.
APRIL. PEARL-COLOUR, or Heron Dun. Dub with the yellowish or ash-coloured herl of a heron; warp with ash-coloured silk. Wing, from the short feather of a heron, or from a coot's wing of an ash-colour. Morning and afternoon.