generally. But if wow crespass. Nivelonge owner land Nivelo ike land. on to the of W seart a deer on it's land and drives it on, C's & where Bills it, ihe gives it to W. law Sce se on wild animals. It is not a quico hands on Dbut control. actually guiling Sew on this eaking wild animals 18 am. Dre 019 case of wild bees. 2 " 2 264 Slate Ref 568 له of a hyene escapes & is corralled in a Yard t is still 34 Slild Ry 114 Cal 55 Slale 116 Cal 175 Fish in Truckee way. The animal muist get back is its native haunts. Thus a monkey gets lost it no well in ossz owner. 116 Cal 51 holds what and the off. This feeds wish slaves formurlly. spring belongs to mover of clans. Swans the only exception. THE CASE OF SWANS. 7 Co. 15 b, 17 a (1592). — And in the same case it is said that the truth of the matter was that the Lord Strange had certain swans which were cocks, and Sir John Charleton certain swans which were hens, and they had eignets between them; and for these cignets the owners did join in one action, for in such case by the general custom of the realm, which is the common law in such case, the cignets do belong to both the owners in common equally, sc. to the owner of the cock and the owner of the hen; and the cignets shall be divided betwixt them. And the law thereof is founded on a reason in nature; for the cock swan is an emblem or representation of an affectionate and true husband to his wife above all other fowls; for the cock swan holdeth himself to one female only, and for this cause nature hath conferred on him a gift beyond all others; that is, to die so joyfully, that he sings sweetly when he dies; upon which the poet saith, Dulcia defecta modulatur carmina lingua, And therefore this case of the swan doth differ from the case of kine, السرية سمنه لسفهد siy way. TRESPASS.-The first count charged that defendant, with force, &c., set by seized and disturbed a fishing sean and net of plaintiff, thrown into the scared! sea for fish, wherein plaintiff had taken and inclosed, and then heldinclosed in his own possession, a large number of fish, to wit, &c., and that defendant threw another fishing sean and net within and upon plaintiff's sean and net, and for a long time, to wit, &c., prevented plaintiff from taking the fish, so taken and inclosed, out of his sean no action! trisfas Deres for and net, as he could otherwise have done; and drove, &c., the fish ;- flif did whereby part of them died, part were injured, and part escaped; and the sean and net was injured. Second count, that defendant with force, &c. seized, took, and converted fish of plaintiff. Pleas 1. Not guilty. Issue thereon. 2. To the first count, as to preventing plaintiff from taking the fish alleged to be inclosed in his possession, and driving, &c., the said fish: that the fish were not plaintiff's fish. and he was not possessed of them, in manner, &c. Conclusion to the country. Issue thereon. not have Loss. 3. To the second count, that the fish were not the plaintiff's fish, in manner, &c. conclusion to the country. Issue thereon. 4 and 5. As to other parts of the declaration, raising defences under statutes 16 Geo. III. c. 36, and 4 & 5 Vict. c. lvii. (local and personal, public), relating to the St. Ives (Cornwall) pilchard fishery. Issues of fact were tendered and joined on those pleas. On the trial, before Atcherley, Serjt., at the Cornwall Spring Assizes, 1843, it appeared that the plaintiff had drawn his net partially round the fish in question, leaving a space of about seven fathoms open, which he was about to close with a stop net; that two boats, belonging to the plaintiff, were stationed at the opening, and splashing the water about, for the purpose of terrifying the fish from passing through the opening; and that at this time the defendant rowed his boat up to the opening, and the disturbance, and taking of the fish, complained of, took place. The learned Serjeant left to the jury the question of fact whether the fish were at that time in the plaintiff's possession, and also other questions of fact on the other issues. Verdict for plaintiff on all the issues, with damages separately assessed; namely, £568 for the value of the fish, and £1 for the damage done to the net. Leave was given to move as after mentioned. In Easter term, 1843, Crowder obtained a rule nisi for entering a verdict for defendant on all the issues, or on the 2nd, 3rd, 4th, and 5th, or for reducing the damages to 20s. and entering a verdict for defendant on the 2nd and 3rd issues; or for a new trial; or for arresting the judgment. In Hilary vacation (Feb. 10th), 1844, Cockburn and Montague Smith showed cause. Crowder, contra. LORD DENMAN, C. J. It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant; but it is quite certain that he had not possession. Whatever interpretation may be put upon such terms as "custody" and "possession," the question will be whether any custody or possession has been obtained. here. I think it is impossible to say that it had, until the party had actual power over the fish. It may be that the defendant acted unjustifiably in preventing the plaintiff from obtaining such power; but that would only show a wrongful act, for which he might be liable in a proper form of action. PATTESON, J. I do not see how we could support the affirmative of these issues upon the present evidence, unless we were prepared to hold that all but reducing into possession is the same as reducing into possession. Whether the plaintiff has any cause of action at all is not clear; possibly there may be a remedy under the statutes. WIGHTMAN, J. I am of the same opinion. If the property in the fish was vested in the plaintiff by his partially inclosing them, but leaving an opening in the nets, he would be entitled to maintain trover for fish which escaped through that very opening. (COLERIDGE, J., was absent.) Rule absolute for reducing the damages to 20s., and entering the verdict for defendant on the second and third issues. is done to lial pass. velion To case lies. damay to if any KIN for consequential action will the. Bushit & Newkirk The animal must be reduced, ло to poss. owner & once so it is this Weill it returns o Deill, ito natural haven's, not merely breaking loose as from a circus. Juelo & the nature of the unimal must determine what are its same time, who is, cut the deer's throut, Cheskin AM: al liberty, by wounding or oerwise may in a stale said wer to be gain in as agh wounded, ran six miles? of nature. |