PROPERTY IN FISH—CURIOUS LAWSUIT 233 
Now is the accepted hour for “ the fisherman to throw out 
a little beyond his finger tips a hook concealed in bait,” and 
(to prevent alarm) smuggle the fish out gently, one by one, bya 
very slight jerk. His mate receives the fish on pieces of cloth, 
so that no floundering about or other noise may scare their 
comrades. On no account must “ the betrayer of the others ’’ 
be captured, lest instantly the shoal take to flight and be no 
more seen. 
But “ there is a story that a fisherman, having quarrelled 
with his mate, threw out a hook to one of the leading fishes, 
which he easily spotted and with malicious intent captured. 
The fish was, however, recognised in the market by his mate, 
against whom he had conceived this malice: accordingly an 
action for damages (damni formulam editam) was brought, 
which the defendant, as Mucianus adds, was condemned to 
pay.” 
Now, as shown above, (1) a fish is “ res nullius,” (2) a fish 
becomes the property of him who first “ reduces it into posses- 
sion,” (3) the sea, with some exceptions which do not apply 
here, is not capable of individual ownership. 
If “the betrayer of his kind” was till malicious capture 
admittedly and of set purpose left free in the sea, how could it 
have been reduced into possession, how could any title in it 
have been acquired, and, lastly—granted some kind of posses- 
sion—by what actio or legal formula could such possession have 
been enforced ? 
These points were to me a stumbling-block, till Professor 
Courtney Kenny of Cambridge kindly came to my aid. As 
the extension here of Mansuefactio is apparently unique, and 
would possibly have been repudiated by jurists after Mucian’s 
time, we seem to be faced by a novel point, which on account 
of its intricacy and interest will appeal to people learned in 
the Roman Law. 
The Professor’s letter runs: ‘“ Ownership in the Anthias 
must have been created by that form of Occupatio of a res 
nullius, which consists, not by the physical detention by angling, 
or by a piscina, but in mere mansuefactio. This form is 
familiar for birds (Dig., 41. 2. 3. 15: and for English Law, 
