FISH, OYSTERS. 3S 



is said in one case : "If oysters had previously existed in their 

 native state on this ground, the plaintiffs could not have de- 

 prived others of the right to take them by depositing others 

 in the same place. . . . The defendants could not impair the 

 plaintififs' title to the oysters by depositing a few others in the 

 same place, knowing that the plaintififs had at the time similar 

 property there and with an intent to mingle the two together 

 that neither could be identified, and thus enable them to ap- 

 propriate the property of others to their own use [citing 2 

 Kent Com. 365] ." "* And in a later case the same court say : 

 "It is indispensable to the existence of the right of property 

 in oysters thus planted, that the bed shall not interfere with 

 the exercise of the common right of fishing; for if the oysters 

 were mingled with and undistinguishable from others of nat- 

 ural growth in the public waters, the interest of the 

 person planting them would be subservient to the public 

 use." "« 



In a contract not to engage in the sale of "fish," oysters- 

 were held to fall within that denomination.^^® 



12. Cats — Blackstone says : "Among our elder ancestors^ 

 the ancient Britons, another species of reclaimed animals, viz.^ 

 cats, were looked upon as creatures of intrinsic value, and the 

 killing or stealing one was a grievous crime and subjected the 

 ofifender to a fine ; especially if it belonged to the king's house- 

 hold and was the custos horrei regii, for which there was a very 

 pecuHar forfeiture." ^^'^ 



But in the English common law, as has already been said,. 



'" Decker v. Fisher, 4 Barb. (N. Y.) 592. 



"' Lowndes v. Dickerson, 34 Barb. (N. Y.) 586, 589. 



"" Caswell V. Johnson, 58 Me. 164. 



"'2 Bl. Com. 394. The law was: "If anyone shall steal or kill a cat 

 being the guardian of the king's granary, let the cat be hung up by the tip 

 of its tail with its head touching the floor, and let grains of wheat be 

 poured upon it until the extremity of its tail be covered with the wheat. "^ 

 The amount of wheat required was the measure of the forfeiture. See 

 the opinion in Whittingham v. Ideson, 8 Upper Can. L. Jour. 14. 

 3 



