profit of the principal, but was collateral to and beyond it. He could not wrong the principal, but he might wrong the person with whom he dealt, by screwing him up beyond the real value of the goods, for the sake of his own profit, and therefore he had a separate interest to establish a particular contract." The C. J. admitted, however, that, if the principle upon which the two judges relied, viz. that there was not any difference in point of interest between a person who sold upon commission, and one who was to have a share of the profit, could be supported, the evidence ought to be received. CHAP. XXI. FISHERY. I. Of the Right of Fishery in the Sea, and in the Creeks and Arms thereof, and in fresh Rivers. II. Of the different Kinds of Fishery-Several FisheryFree Fishery-Common of Fishery. I. Of the Right of Fishery in the Sea, and in the Creeks and Arms thereof, and in fresh Rivers. THE right of fishing in the sea, and the creeks and arms thereof, is originally lodged in the crown, in like manner as the right of fishing in a private or inland river is originally lodged in the owner thereof. But although the king is the owner, and as a consequent of his property, hath the primary right of fishing in the sea, or creeks or arms thereof, yet all the king's subjects in England have regularly a liberty of fishing in the sea, and the creeks and arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks, or navigable rivers, where the king, or some particular subject, hath gained a propriety exclusive of that common li berty, either by the king's charter or grant, or by custom and usage, or prescription." It appears from this passage, that Lord Hale thought an exclusive right of fishery in an arm of the sea might belong to a subject. And of this opinion were the Court of B. R. in Carter and another v. Murcot and another, 4 Burr. 2162. where it was decided, that a plea which prescribed for a several fishery in an arm of the sea, was good; but it was there said, that, as the presumption in such a Ld. Hale, De Jure Maris, p. 1. c. 4. Hargrave's Tracts, vol. 1. p. 11. See also the case of the Royal Fishery of the Banne. Dav. R. 55. b See also 8 Ed. 4. 19. a. 4 T. R. 437. S. P. admitted by Kenyon, C. J. and Ashhurst, J. case was in favour of the king and public, it was incumbent on the plaintiff to prove his exclusive right, agreeably to the rule laid down by Lord Hale, in 1 Mod. 105. that if any one will appropriate a privilege to himself, the proof lies on his side. In Ward v. Creswell, Willes Rep. 265. and 16 Vin. Abr. 354. tit. Piscary (B.) S. C. the court held, that all the subjects of England, of common right, might fish in the sea, it being for the good of the commonwealth, and for the sustenance of the people of the realm, and that therefore a prescription for it as appurtenant to a particular township was void, and as absurd as a prescription would be for travelling the king's highway, or for the use of the air as appurtenant to a particular estate. To trespass for fishing in the plaintiff's fishery, defendant pleaded, that the place is an arm of the sea, in which every subject has a right to fish; the plaintiff in his replication claimed an exclusive right by prescription, traversing the general right. It was holden, that this was a bad and immaterial traverse, and might be passed over by the defendant, and that it was competent to him to traverse the prescriptive right of the plaintiff stated in the replication. In Bagott v. Orr, 2 Bos. & Pul. 472. the court seem to have been of opinion, that prima facie every subject has a right to take fish found on the sea shore between high and low water mark, but that such general right might be restrained by an exclusive right in an individual. Fresh rivers, of what kind soever, of common right belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquæ, and the owners of the other side the right of soil or ownership, and fishing unto the filum aquæ on their side. And if a man be owner of the land on both sides, in common presumption he is owner of the whole river, and hath the right of fishing according to the extent of his land in length. But special usage may alter that common presumption; for one may have the river, and others the soil adjacent: or one may have the river and soil thereof, and another the free or several fishery in that river. c Richardson v. the Mayor, &c. of Or- d Ld. Hale, De Jure Maris, p. 1. c. 1. ford, 2 H. Bl. 182. Hargrave's Tracts, vol. 1. p. 5. Davis's R. 57. a. b. II. Of the different Kinds of Fishery-Several FisheryFree Fishery-Common of Fishery. A several fishery is where a person has an exclusive right of fishery, either in his own soil or in the soil of another (1.) He who has a several fishery is not necessarily the owner of the soil; but as the exclusive right of fishing is an incident to the ownership of the soil, it will be presumed, until the contrary be shewn, that such right resides in the owner of the soil. Hence, to an action of trespass for an injury to a right of several fishery, it is a good plea that the soil and freehold belong to defendants (2). To this, however, the plaintiff may reply title to the several fishery, either by prescription or grant, thereby rebutting the presumption of the right of several fishery being still vested in the owner of the soil. If a person be seized of a river", and by deed grant a several fishery in the same, and makes livery of seisin secundum formam carta, the soil does not pass; and if the river become dry, the grantor may take the benefit of the soil, for a particular right only passed to the grantee. A prescriptive right to a several fishery in a navigable river may pass as appurtenant to a manor. A right of e Fitz. Abr. Barre, pl. 27. cites M. 20. H. 6. 4. f Hargrave's Note, Co. Litt. 122. a. n. (7). g 17 E. 4. 6. b. 18 Ed. 4. b. Per Paston, J. 18 H. 6. 30. a. Fitz. h 1 Inst. 4 b. But see Hargrave's note. (1) "In order to constitute a several fishery, it is requisite that the party claiming it should so far have the right of fishing independently of all others, as that no person should have a co-extensive right with him in the object claimed. But a partial independent right in another, or a limited liberty, does not derogate from the right of the general owner." Per Lord Mansfield, C. J. delivering the resolution of the court, Seymour and others v. Ld. Courtenay and others, 5 Burr. 2814. (2) See also 10 H. 7. 24. b. 28. b. a case very clearly reported; but it is said there, that the plea is not good, unles it conclude with praying, whether plaintiff shall have his action without shewing title. Per Brian, J. but in 20. H. 6. 4. a. Newton, C. J., C. B. was of opinion, that the plea might be concluded either way. fishery is divisible, and may be abandoned as to part, while another part is preserved. Hence, an exclusive right to dredge for oysters may subsist as appurtenant to a manor, although it be lawful for all the king's subjects to catch floating fish therein. Trespass for breaking and entering his close, and fishing in separati piscarid sud, and for taking pisces suos. After verdict, exception was taken to the declaration in arrest of judgment, because it is said pisces suos. But the court were of opinion, that being in separali piscarid, it might well be said pisces suos, because they could not be taken by any other person. In Fontleroy v. Aylmer, Ld. Raym. 239. where the declaration stated that defendant, in separali sud piscaria piscatus fuit, et pisces cepit, after verdict for plaintiff, an exception in arrest of judgment, directly the reverse of that in the foregoing case, was taken, viz. that the declaration had omitted the word suos; but the court thought the objection entitled to very little weight; because the plaintiff having alleged, that it was his fishery, the fish there should be intended prima facie to be his fish. Issue being joined upon a prescription for the sole and exclusive right of fishing over four places in a navigable river', proof of the right of fishing over three of the four places was holden not to support the right claimed; although it appeared that the trespasses complained of were committed in one of the three places over which the right was shewn to exist. Free Fishery. It is to be lamented, that the books do not afford materials for an accurate description of a free fishery. That this subject is involved in doubt and uncertainty, will appear from the following passages, extracted from the writings of Mr. Justice Blackstone and Mr. Hargrave. Mr. J. Blackstone, having defined common of fishery to be a liberty of fishing in another man's water, states a free fishery to be an exclusive right of fishing in a public river, and adds, "that is a royal franchise, and is considered as such in all countries where the feodal polity has prevailed; k Child v. Greenhill, Cro. Car. 553. 1 Rogers v. Allen, 1 Camp. N. P. C. Sir Wm. Jones, 440. S. C. 309. m 2 Bl. Com. 39, 40. Edn. 12. |