Appendix to the Plemorial. 133 



vessels have no right to fish or take fish within the three-mile 

 Hmit of the coasts of Nova Scotia. Their main contention, at the 

 hearing before ns. was that when the Gerring was seized, the Ush- 

 ing or taking fish had been completed in the open sea, and that 

 the mere bailing of fish after they had been caught, and lifting them 

 on the deck of the vessel, is not fishing and was no offence. 



They quote no authority in support of this proposition, except 

 Webster's definition of the word fishing: "An attempt to catch 

 fish, to be employed in taking fish by any means." I have before 

 me the latest edition of Webster, the "International" of 1896, 

 where the word "fishing" is perhaps more definitely defined : "The 

 act, practice, or art, of one who fishes." But neither this nor the 

 other definition decides the point at issue. Was the act of bailing 

 the fish out of the seine into the vessel an operation of fishing or 

 taking fish? That is the question which must be decided according 

 to the principles of law. And to do so, we are brought to examine 

 this other question : Is the fisih inclosed in the seine the property 

 and in the possession of the fishermen before it is actually trans- 

 ferred to the vessel? Chief Justice MacDonald. who tried this case 

 in the court below, answered this question in the negative. He 

 said: 



I must not omit to notice the contention of Mr. MacCoy, 

 that admitting the seine to have been thrown and the fish en- 

 closed in it outside of the three-mile limit, it is not an offence 

 against the Act to continue to bail the fish from the seine into 

 the vessel after permitting her to drift across the prohibited 

 boundary. I cannot accept his contention that the "fishing" 

 and the "catching of the fish" was complete when the seine 

 was successfully thrown. Further labour is required to save 

 the fish from the sea, and reduce the property to useful pos- 

 session, and until that be completed the act of fishing and 

 "catching" fish is not in my opinion completed, and in the 

 case before us the crew were in the act of bailing the fish 

 from the seine into the vessel when the seizure was made.^ 



After a careful research in the text books and digests, both 

 English and American, I have been able to find only one English 

 case in point, but it fully supports the views of the learned Chief 

 Justice. I refer to the case of Young v. Hichens,' decided in 1844 



15 Can. Ex. R. 173. 



21 D. & M. 592; 6 Q. B. 106. 



