PROPERTY IN FISH— CURIOUS LAWSUIT 233 



Now is the accepted hour for " the fisherman to throw out 

 a Httle beyond his linger tips a hook concealed in bait," and 

 (to prevent alarm) smuggle the hsh out gently, one by one, by a 

 very shght jerk. His mate receives the fish on pieces of cloth, 

 so that no floundering about or other noise may scare their 

 comrades. On no account must " the betrayer of the others " 

 be captured, lest instantly the shoal take to flight and be no 

 more seen. 



But " there is a story that a fisherman, having quarrelled 

 with his mate, threw out a hook to one of the leading fishes, 

 which he easily spotted and with malicious intent captured. 

 The fish was, however, recognised in the market by his mate, 

 against whom he had conceived this mahce : accordingly an 

 action for damages {damni formulam editam) was brought, 

 which the defendant, as Mucianus adds, was condemned to 

 pay." 



Now, as shown above, (i) a fish is " res nullius," (2) a fish 

 becomes the property of him who first " reduces it into posses- 

 sion," (3) the sea, with some exceptions which do not apply 

 here, is not capable of individual ownership. 



If " the betrayer of his kind " was till malicious capture 

 admittedly and of set purpose left free in the sea, how could it 

 have been reduced into possession, how could any title in it 

 have been acquired, and, lastly — granted some kind of posses- 

 sion — by what actio or legal formula could such possession have 

 been enforced ? 



These points were to me a stumbling-block, till Professor 

 Courtney Kenny of Cambridge kindly came to my aid. As 

 the extension here of Mansuefactio is apparently unique, and 

 would possibly have been repudiated by jurists after Mucian's 

 time, we seem to be faced by a novel point, which on account 

 of its intricacy and interest will appeal to people learned in 

 the Roman Law. 



The Professor's letter runs : " Ownership in the Anthias 

 must have been created by that form of Occupatio of a res 

 nullius, which consists, not by the physical detention by angling, 

 or by a piscina, but in mere mansuefactio. This form is 

 familiar for birds {Dig., 41. 2. 3. 15 : and for English Law, 



