470 THE LAWS OP ANGLING. 



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 

 JEltz. : But here, the writ shall vary from that in the 

 case of a several-fishery [by possession of the soil], and 

 demand, ^ Wherefore the defendant, in the free-fishery 

 " of the plaintiff, at N. without the licence and coii- 

 " sent 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 

 fercK naturd, 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 wjth 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. Lilt. 122. a. 



As common of fishing, may be appendant to land ; so 

 also there may be a joint-tenancy, or a tenancy in com- 

 mon, of a fishery. 1 Inst. 186. b. 



Having thus shewn in what cases the angler, in 

 the pursuit of his recreation, may become a tres- 

 passer^ let us next consider how far he is, by taking 



* I find inDugd. Wariv. 1142, In margine, 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 Middietorj, fish, with 

 " a boat any where in his water at Aminton, with one net, called ayfe//- 

 " net, and a tramil ajnd fayna ; for. which liberty he gave him six marks 

 of silver." 



