114 The Frederick Gerring, Jr. 



his net partially round the fish in question, leaving a space of 

 about seven fathoms open which the plaintiff was about to close 

 up when the disturbance complained of took place. Until this 

 open space should be closed the fish round which the net was only 

 partially drawn were at large in the sea, and so could not be held 

 to have been taken and enclosed and then held enclosed in the 

 plaintiff's possession, as averred in the declaration. As to the 

 fish, therefore, it was held that the plaintiff had them not in his 

 possession, and could not therefore maintain trespass as regarded 

 them, but for the trespass to the seine he recovered twenty shil- 

 lings. 



Now in that case it was not held that if the fish had been 

 secured in the seine the action of trespass would not have lain ; 

 much less can that case be an authority for holding that the fish 

 taken in the seine set by the Gerring, which with the fish secured 

 in it was hauled up and pursed, as it is called, and attached to 

 the vessel, were not so in possession of the owners of the Gerring 

 as to give them an action of trespass against any one who should 

 bring a vessel alongside of the seine and either put the fish therein 

 into such vessel, or cut the seine and let the fish fall into the sea. 

 But the question with which we have to deal is whether or not 

 the officers of the Dominion Government had any right to seize 

 the Gerring, with or without the fish so secured in the net so 

 hauled up and pursed and attached to the vessel as aforesaid. And 

 this they had no right to do unless the fact of a vessel which had 

 been engaged in fishing in the open sea, and in tlie seine laid by 

 which in the open sea fish had been caught, which fish while the 

 vessel was still in the open sea were secured by the net being 

 hauled up, the ends tied so as to secure the fish, and so pursed as it 

 is called, had been attached to the vessel, which afterwards by 

 force of the winds or currents was driven or drifted into Canadian 

 waters within the three-mile limits, can by the terms of the laws 

 of the Dominion of Canada be held to have subjected the vessel 

 to seizure as a vessel then engaged in fishing for fish in Canadian 

 waters, and in my opinion the laws of the Dominion are open to 

 no such construction. 



Sedgewick, J. : There can be no question as to whether the 

 vessel, at the moment she was seized by the S. S. Aberdeen was 

 within three marine miles of the coast of Nova Scotia. The 



