132 The Frederick G erring, Jr. 



waters for such a purpose is a substantial use of them for a purpose 

 directly connected with the taking of fish, and not being permitted 

 by treaty or by any statute, Imperial or Canadian, is within the 

 terms of clause (b) of ch. 94, Revised Statutes of Canada. It is 

 immaterial, so far as the question of right is concerned, that the 

 vessel may have drifted within the limit, for, if appellant's conten- 

 tion is correct, it avails equally where the act is deliberate. The 

 remedy for cases of hardship lies in the pardoning power of the 

 Crown. 



Further, as to the meaning of the words "taking fish" and 

 "fishing," in the treaty and statutes: "to fish" is defined in Web- 

 ster's dictionary as "to be employed in taking fish as by angling or 

 drawing a net." It covers the attempt although the fish may not 

 be present in the waters, and a fortiori, it covers all that is in- 

 volved in the continuous act of acquiring complete and absolute 

 dominion over fish, subject to certain possession and control. It 

 may well be that the Gerring people had sufficient control and 

 dominion to have acquired a qualified property in the fish; Young 

 V. HicJiens;^ Pollock & Wright on Possession, 37 : 2 Kent's Com., 

 348; but an operation at sea of taking several hundred, or one 

 hundred barrels (as here) of loose and live fish from a bag net, 

 is attended with such obvious chances of some of them at least 

 regaining their natural liberty, that the act of fishing cannot be 

 said to be entirely at an end in a useful sense until the fish are 

 reduced into actual possession. The whole is a continuous act re- 

 quiring for its successful carrying out that the fish should with- 

 out delay be taken from the water, and the whole operation may 

 properly have applied to it the terms "fishing" and "taking fish." 



I have not arrived at this conclusion without hesitation and 

 doubt, enhanced by the knowledge that the learned Chief Justice 

 and Mr. Justice Gwynne are of a different opinion. 



The result, according to my view, is that the appeal should 

 be dismissed. 



GiROUARD, J. : — It is not claimed by the appellants that foreign 

 vessels have the right to fish within the territorial jurisdiction of 

 Canada. They admit that both by the principles of international 

 law and the articles of the Fishery Convention of 1818, American 



i'6 Q. B. 106. 



