134 The Frederick G erring, Jr. 



by the Court of Queen's Bench. The facts are thus summarized 

 in the report of the case : 



On the day in question a very large shoal of mackerel 

 came into the bay of St. Ives. The plaintiff's boat, the Wes- 

 ley, put out, and shot her seine, not conducting herself at that 

 time, as the defendant alleged, according to the regulations 

 of the fishery. The seine, nearly 140 fathoms long, was 

 drawn in a semicircle completely round the shoal with the 

 exception of a space of seven fathoms, according to the plain- 

 tiff's witnesses, ten fathoms according to the defendant's, 

 which was not filled up by it. In this opening, according to 

 the plaintiff's witnesses, the fishermen in the plaintiff's boat 

 were splashing with their oars and disturbing the water in 

 such a manner that, as they affirmed, the mackerel within 

 would have been effectually prevented from escaping. At 

 this conjuncture, before the plaintiff could draw his net closer, 

 the Ellen, the defendant's boat, row^d in through the opening 

 thus made, shot her seine, enclosed the fisih, and captured the 

 whole of them. 



It was held that the first person could not maintain trespass 

 for taking his fish, his possession not having been complete. Lord 

 Denman, C. J., said: 



It certainly results from the evidence in this case, that the 

 fish were reduced to a condition in which it was in the highest 

 degree probable that the plaintiff would become possessed of 

 them. But it is equally certain that he had not become pos- 

 sessed. Whether the necessary possession be rightly described 

 by the word "custodia" or "occupatio," I think it is not at- 

 tained until the plaintiff has brought the animals into his actual 

 power. It may be indeed that the defendant has committed a 

 tortious act in preventing the plaintiff from completing his 

 possession. 



Patterson, J, : 



I do not see how we can say this action is maintainable, 

 unless by holding that a person on the point of taking pos- 

 session of a thing is actually in possession of it. 



It is said that this decision does not apply to the present case, 

 as the seine was pursed up, but it cannot be pretended that a seine 



