Appendix to the Memorial. 113 



attaching it with the fish so secured in it to the vessel. All this was 

 done outside of the three-mile limit, and while inside of it the 

 persons in charge of the vessel proceeded to bail the fish out of 

 the seine into the hold of the vessel. While engaged in this opera- 

 tion she was seized. There was a question raised as to whether 

 the place where she was seized was in point of fact inside of the 

 three-mile limit, but assuming it to have been, there was no doubt 

 that llie vessel had drifted to that position while the persons in 

 charge of her were engaged in bailing the fish out of the seine 

 into the hold, and unless the being engaged in that operation con- 

 stitutes "fishing or taking fish within the three marine miles of 

 the coast of Nova Scotia" there is not a particle of evidence that 

 the vessel had been, or was then, "fishing for fish" in Canadian 

 waters within the three marine miles of the coast, or that she was 

 then preparing to fish in such waters. To construe the act of 

 bailing fish out of a seine in which they liad been caught and 

 secured outside of the three mile limit, into the hold of a vessel, 

 which after the fish had been so caught, and while the parties 

 employed on her were so securing the fish by transferring from 

 the seine to the hold of the vessel, had drifted by force of cur- 

 rents inside of the three-mile limit, as a violation of the treaty 

 rights of the citizens of the United States, or of the Acts of 

 Parliament passed in relation thereto, would be altogether too 

 hypercritical a construction to put upon the treaty securing such 

 rights and the said Acts of Parliament, and can not, in my opinion, 

 have the sanction of this court, and is. not warranted by any of 

 the cases referred to on the argument. 



The case of Young v. Hichins^ has no bearing upon the 

 present case. The plaintiff there complained in trespass for that 

 the defendant had seized and disturbed a fishing seine and net of 

 the plaintiff thrown into the sea for fish, wherein, as alleged in 

 the declaration, the plaintiff had taken and enclosed, and then held 

 enclosed in his own possession, a large number of fish, and tlie 

 defendant threw another fishing seine and net within and upon 

 plaintiff's seine, and prevented plaintiff from taking the fish so 

 taken and enclosed out of his seine, as he otherwise could have 

 done. It appeared in evidence that the plaintiff had only thrown 



16 Q. B. 606. 



