Definitions (r). Fisheries. Herring fisheries, see 30 & 31 Vict. c. 52, reciting the former Sea and oyster fisheries, see 31 & 32 Vict. c. 45, amended by Oysters, stealing, see 24 & 25 Vict. c. 96, s. 26, "LARCENY," post. Taking fish, see Id. ss. 24 and 25. Destroying fish or ponds, see 24 & 25 Vict. c. 97, s. 32, “MA- Fisheries (Salmon). 24 & 25 VICT. c. 109, 28 & 29 VICT. c. 121, and 36 & 37 VICT. 24 & 25 VICT. c. 109. 1-3. [Preliminary: "The Salmon Fishery Act, 1861."] 4. In this Act. . . . "Salmon" shall include all migratory fish of the genus salmon, whether known by the names mentioned... or any other local name: "Young of salmon" shall include all (r) Definitions.-" River" includes such portions of any stream or lake, with its tributaries, and such portion of any estuary, sea, or sea coast, as may from time to time be declared to belong to such river: "Salmon river means any river above defined frequented by salmon or young of salmon (28 & 29 Vict. c. 121, ss. 2, 3): "Annual close season " and "weekly close season mean the close seasons for all kinds of salmon fishing, except by rod and line, respectively applicable to the fishing districts (see 24 & 25 Vict. c. 109, ss. 17, 21, supra): "Close season for rods means the time during which at any particular place it is unlawful under these Acts to fish for salmon with a single rod and line (see Id. s. 17): "Fishing weir" means any erection, structure, or obstruction fixed to the soil, temporarily or permanently across, or partly across, a river or branch of a river, and used exclusively for catching or facilitating the catching of fish: "Grating" includes any device approved by the Secretary of State for preventing the passage of fish through any channel: " Inspectors" shall mean those appointed under 24 & 25 Vict. c. 109: "Occupier i includes any person in actual possession of the fisheries or premises, whether owner or not: "Otter lath or jack" includes any small boat or vessel, board, or stick, for running out baits, across any lake or river: "Owner" means any person receiving the rents, or who would receive them if the property were let: "Rod and line" means a single rod and line: "Strokehall or snatch means any instrument or device for foul hooking any fish (36 & 37 Vict. c. 71, s. 4): "Fixed engine" includes also any net or other instrument for taking fish, fixed to the soil, or made stationary in any other way, not being a fishing weir or fishing mill dam (28 & 29 Vict. c. 121, s. 39), and includes in addition any net placed or suspended in any inland or tidal waters unattended by the owner or any person authorized by him to use the same for catching salmon, and all engines, young of the salmon species, whether known by. any other 24 & 25 Vict. name....: "Tidal waters" shall include the sea, and all rivers, and other water, as far as the tide flows and reflows: "Inland waters" shall mean all waters that are not tidal waters : "Dam" shall mean all weirs and other fixed obstructions used for the purposes of damming up water: ["Fishing weir" repealed (8):] "Fishing mill-dam" (s) shall mean a dam used or intended to be used partly for the purpose of catching or facilitating the catching of fish, and partly for the purpose of supplying water for milling or other purposes: "Fixed engines" (s) shall include stake nets, bag nets, putts, putchers, and all fixed implements or engines for catching or for facilitating the catching of fish. c. 109. 5. Every person who causes or knowingly permits to flow, or Poisoning fish. puts or knowingly permits to be put, into any waters containing salmon, or into any tributaries thereof, any liquid or solid matter to such an extent as to cause the waters to poison or kill fish [Penalty not exc. £5;-2nd conviction, not exc. £10, and not exc. £2 further for each day of continuance ;-3rd or any subsequent conviction, not exc. £20 a day;-except in the exercise of a bonâ fide right (t).] 6,7. [Where the defendant under the previous section alleges Legal right. a right before the justices, and that he has used the best practicable means to render the matter harmless, and that it would devices, machines, or contrivances, whether floating or otherwise, for placing or suspending such nets or maintaining them in working order or making them stationary (36 & 37 Vict. c. 71, s. 4; see also cases in note (b), infra). "Fishing mill dam," -a dam built for milling purposes, without any contrivance to catch fish, is not within 24 & 25 Vict. c. 109, although the owner had availed himself of the greater facilities given by it to catch fish, thereby rendering himself liable under s. 12 (Garnett v. Backhouse, 37 L. J. Q. B. 1; L. R. 3 Q. B. 30; 17 L. T. N. S. 170; 16 W. R. 164). (8) See note (r), ante, p. 254. (t) Procedure.-Within 6 months; 2 justices (36 & 37 Vict. c. 71, s. 62). Penalties, costs, and expences under these Acts and byelaws enforced summarily under 11 & 12 Vict. c. 43 (Introd. p. 31), i.e. by distress-—except when Small Penalties Act applies-in default imprisonment not exc. 3 months: Penalties payable to county treasurer (Introd. p. 38); but on a prosecution by a board of conservators or their authorized officer, the penalties, &c., shall be paid to them for the purposes of the Acts (Id.). Second Offence, not less than half, and 3rd offences not less than the full penalty is to be awarded (28 & 29 Vict. c. 121, s. 57). But it is not imperative to inflict more than 50s. for a 2nd offence, or more than £5 for a 3rd offence (36 & 37 Vict. c. 71, s. 18). Offences on rivers dividing jurisdictions may be tried in either (24 & 25 Vict. c. 109, s. 36), and on the sea coast or at sea shall be deemed committed in the county abutting on the coast (Id. s. 37). A certificate of any conviction is to be sent within 1 month to the board of conservators and shall be receivable in evidence (36 & 37 Vict. c. 71, s. 11). Appeal, to sessions held not less than 15 days nor more than 4 months after the decision, on appellant giving notice, with the grounds of appeal, to the other party in writing and entering into a recognizance with two sureties within 3 days after decision (28 & 29 Vict. c. 121, s. 66). Search warrant, see note (c), post, p. 260. Arrest, see 36 & 37 Vict. c. 71, s. 38, post, p. 264. c. 109. 24 & 25 Vict. cost him £100 to permanently prevent such poisoning, he may enter into a recognizance to appeal, and the justices' proceedings shall be stayed, and the complainant may bring an action against such defendant in the superior courts.-7. Verdict to be final, and costs before the justices to be included in the costs of action.] Lights, spears, &c. Roe as bait (a). Nets. Fixed engines (b). 8. No person shall (1.) Use any (u) light for the purpose of catching salmon : (2.) Use any spear, gaff, strokehall (x), snatch, or other like instrument for catching (u) salmon : (3.) Have in his possession a light or any of the foregoing instruments under such circumstances as to satisfy the Court before whom he is tried that he intended at the time to catch (u) salmon by means thereof[Penalty not exc. £5 (y), and instruments forfeited (z):—this is not to apply to gaffs used with a rod and line.] 9. No person shall. use any fish roe for the purpose of fishing-buy, sell, or expose for sale, or have in his possession, any salmon roe— [Penalty not exc. £2 (z), and roe forfeited:-this is not to apply to roe held for scientific use (by consent of conservators, 28 & 29 Vict. c. 121, s. 60), or for which a satisfactory account is given (x).] 10. No person shall take or attempt to take salmon with any net having a mesh of less dimensions than 2 inches in extension from knot to knot (the measurement to be made on each side of the square) or 8 inches measured round each mesh when wet— [Penalty not exc. £5 (z), and nets and tackle forfeited. Using two nets to diminish the mesh, or any other evasion, is an offence within this section.] 11. No fixed engine of any description shall be placed (u) This section is to be read as if "otter lath or jack, wire or snare were inserted after "any," and "or killing" after "catching" in c. 2, and "or kill" after "to catch" in c. 3 (36 & 37 Vict. c. 71, s. 18). (x) Definitions.-See note (r), ante, p. 254. (y) Third conviction under this section, imprisonment not exc. 6 months, with or without hard labour (28 & 29 Vict. c. 121, s. 56), nor less than 1 month (36 & 37 Vict. c. 71, s. 18). (z) Procedure.-See note (t), ante, p. 255. (a) These sections are extended to trout (28 & 29 Vict. c. 121, s. 64), and see note (i) post, p. 257. (b) Fixed engines.-A net stretched across the river by corks and held at the bottom by a stone, which gave way when the salmon touched the net, was held not to be within this section (Thomas v. Jones, 34 L. J. M. C. 45; 13 W. R. 154; 11 L. T. N. S. 450; but see 28 & 29 Vict. c. 121, s. 39, infra, and Rawstorne v. Backhouse, 37 L. J. C. P. 26; L. R. 3 C. P. 67; 17 L. T. N. S. 441; 16 W. R. 249). This section absolutely forbids fishing, except with a rod or line, within that distance, notwithstanding any previous usage (Moulton v. Wilby, 2 H. & C. 25; 32 L. J. M. C. 164; 9 Jur. N. S. 472; 8 L. T. N. S. 284; 11 W. R. 670; see also 28 & 29 Vict. c. 121, ss. 39-41, infra); but if a person use a net which is not of itself used peculiarly for catching salmon, and which is not fixed for the purpose of catching salmon, he is not liable to the penalty imposed by this section (Watts v. Lucas, 40 L. J. M. C. 73; L. R. or used for catching (c) salmon in any inland or tidal 24 & 25 Viet. waters [Penalty on the owner not exc. £10 each day (d): the engines may be seized or destroyed and shall be forfeited (e); a net temporarily fixed to the soil is within this section, but this shall not affect any ancient right (ƒ) nor apply to fishing weirs or fishing mill dams.] 12. No dam except such fishing dams (g) as are lawfully in use weirs and fishing mill Dams. by grant or charter or immemorial usage, shall be used for the purpose of catching or facilitating the catching of salmon [Penalty not exc. £5, and not exc. £1 further for each salmon caught (d); -all traps, nets, and salmon caught forfeited. Fishing weirs and dams to have free gaps.] No person shall catch or attempt to catch, except by rod and line, any salmon in the head race or tail race of any mill, or within 50 yards below any dam, unless such mill or dam has attached thereto a fish pass of such form and dimensions as may be approved by the Home Office, and such fish pass has constantly running through it such a flow of water as will enable salmon to pass up and down it— [Penalty not exc. £2, and not exc. £1 further for each salmon caught (d); nets and salmon forfeited.] c. 109. 13. [The company or persons having control over artificial Artificial streams. channels shall put up and maintain a grating across such channel, to prevent the descent of salmon, in the manner di rected by the inspectors Penalty not exc. £5 a day for neglecting, and not exc. £1 a day for not maintaining such grating (d).] 14. No person shall . . . . wilfully take (i) any unclean or un- Unclean fish (★). 6 Q. B. 226; 24 L. T. N. S. 128; 19 W. R. 470). Nets made stationary by a mechanical contrivance are fixed engines (Gore v. The Special Commissioners, 40 L. J. Q. B. 252). A net secured at one end to a pole temporarily fixed to the soil on the margin of the channels of a tidal river is a fixed engine (Olding v. Wild, 14 L. T. N. S. 402). (c) The words "or for the purpose of facilitating the catching of salmon, or detaining or obstructing the free passage of" are to be inserted here (36 & 37 Vict. c. 71, s. 18). (d) Procedure.-See note (t), ante, p. 255. (e) Seizure. The right to seize and destroy under this section extends to all persons and is not confined to the conservatory only (Williams v. Blackwall, 32 L. J. Ex. 174; 2 H. & C. 33; 9 Jur. N. S. 579; 11 W. R. 621; 8 L. T. N. S. 252). (f) Ancient right.-Proof that defendant and his family had used stake nets on the sea coast for 40 years was held not to be evidence of a legal ancient right (Bevins v. Bird, 12 L. T. N. S. 306; see also Holbord v. George, 37 L. J. Q. B. 185; 18 L. T. N. S. 817; L. R. 3 Q. B. 639; 16 W. R. 1204). (g) Definitions.-See note (r), ante, p. 254. (h) Exporting unclean salmon.-No unclean or unseasonable salmon, or salmon caught in close time (s. 17, infra) shall be exported or entered for exportation; the proof that salmon entered between 3rd September and 30th April was properly caught shall lie on the defendant (26 Vict. c. 10, s. 3, amended by 33 & 34 Vict. c. 33, s. 3). (i) The words "kill or injure or attempt to take" are to be inserted here, S c. 109. 24 & 25 Vict. seasonable salmon;-buy, sell, or expose for sale, or have in his possession, any unclean or unseasonable salmon, or any part thereof Young of salmon. Disturbing [Penalty not exc. £5 (k) for each offence and £1 for each fish (36 & 37 Vict. c. 71, s. 18), and fish forfeited (); not to apply to persons taking such fish accidentally and forthwith returning the same to the water, or to persons having such fish (by consent of commissioners, 28 & 29 Vict. c. 121, s. 60,) for scientific purposes.] 15. No person shall wilfully (m) take or destroy the young of salmon ;-buy, sell, or expose for sale, or have in his possession, the young of salmon ;-place any device for the purpose of obstructing the passage of the young of salmon ;-wilfully injure the young of salmon ;-wilfully disturb any spawning bed, or any bank or shallow on which the spawn of salmon may be [Penalty not exc. £5 (k), all young of salmon, rods, nets, and devices used forfeited-not to apply to young of salmon held (by consent of conservators, 28 & 29 Vict. c. 121, s. 60) for scientific purposes, or to the right of the owner to take materials from a stream.] 16. If any person wilfully disturbs or attempts to catch salmon spawning. salmon when spawning, or when or near their spawning beds— [Penalty not exc. £5 (k)-not to apply to catching salmon (by consent of conservators, 28 & 29 Vict. c. 121, s. 60) for scientific purposes.] Close time (0). Removal of time. 17. No person shall fish for, catch, or attempt to catch, or kill 1st November following, both inclusive- 18, 19. [Repealed, 36 & 37 Vict. c. 71, s. 65.] 20. The proprietor or occupier of every fishery (q) for salmon engines in close shall, within 36 hours after the commencement of the close season, cause to he removed and carried away from the waters within his fishery the inscales, hecks, tops, and rails of all cruives, boxes, or cribs, and all planks and temporary fixtures and the word "salmon" here is to include trout and char (36 & 37 Vict. c. 71, s. 18). (k) Procedure.-See note (t), ante, p. 255. (1) Third conviction under this section, Imprisonment not exc. 6 months, with or without hard labour (28 & 29 Viet. c. 121, s. 56); nor less than 1 month (36 & 37 Vict. c. 71, s. 18). (m) Catching young of salmon, in ignorance of what they are, is no offence (Hopton v. Thirlwall, 9 L. T. Q. B. 327). (0) See also 36 & 37 Vict. c. 71, ss. 16, 19, 20, infra. No trout shall be killed in a salmon river between 1st November and 1st February. Penalty (k) not exc. £2, and to forfeit trout (28 & 29 Vict. c. 121, s. 64). (p) Definitions.-See note (r), ante, p. 254. (4) A fishing mill dam is a fishery within this section (Hodgson v. Little, 9 Cox, C. C. 327; 33 L. J. M. C. 229; 16 C. B. N. S. 198; 11 L. T. N. S. 136; 10 Jur. N. S. 953). |