FISH, OYSTERS. 29 



cured ; but how in a pond is a question of doubt, which seems 

 to admit of different answers, as the circumstances of par- 

 ticular cases differ' [citing 2 Bish. Crim. L., § 685 ; i Hale 

 P. C. 511; Foster's Crown Law, 366]. An English statute, 

 5 Geo. Ill, Ch. 14, made it indictable to steal fish from a 

 river in any enclosed park. In a case under this statute 

 'where the defendant had taken fish in a river that ran through 

 an enclosed park, but it appeared that no means had been 

 taken to keep the fish within that pail of the river that ran 

 through the park, but that they could pass down or up the 

 river beyond the limits of the park at their pleasure — the 

 judges held that this was not a case within the statute :' Rex 

 V. Corrodice, 2 Russell 1 199. This is sufficient for , our 

 case." 1"* 



Where the plaintiff, while engaged in fishing, cast a seine 

 around a shoal of mackerel, leaving a small opening which 

 the seine did not quite fill up and through which, in the opin- 

 ion of experts, the fish could not escape, and the defendant 

 pushed his boat through the opening and took fish, it was 

 held that the plaintiff's possession was not so complete as to 

 enable him to maintain trespass. -'"^ And where fish have 

 been caught and placed in a cove within the ebb and flow of 

 the tide, being confined therein by a wire fence extending 

 across its mouth, there is no such right of property in them 

 as will support an action of trespass against one who caught 

 them and appropriated them to his own use.^"* 



With regard to fish in a pond, a learned writer says : 

 "It has been doubted whether at common law larceny can be 

 committed of fish in a pond. It is admitted that it may be, 

 if they be confined in a trunk or net ; because they are then 



'" State V. Krider, 78 N. C. 481. 



"" Young V. Hichens, i Dav. & Meriv. 592, 6 Q. B. 606. 



"" Sellers V. Sellers, ^^ Md. 148. And, in general, if after fish have been 

 taken, they are restored to their native element so that they can be re- 

 gained only in a similar manner to that by which they were originally 

 taken, the right of the property is lost: Ibid. 



