FISHERY 727 FISHERY divided by Holt, C. J. (Smith v. Kemp, 2 Salk. 637; 4 Mod. 187; Carth. 285; Holt, 322; So Skin. 342), into 1. Separalis Piscaria, where he who has the Fishery is owner of the soil; 2. Libera Piscaria, which is where a mere Right of Fishing is granted; and 3. Communis Piscaria. "But the term 'Several Fishery' is sometimes applied to a right of fishing in public waters, which may be exerciseable by many people, and the term Free Fishery' is sometimes applied to a Several Fishery, either in private or in public waters, and sometimes to a right of fishing in common with others (V. 6 Bac. Abr. tit. Pischary, and Bloomfield v. Johnston, Ir. Rep. 8 C. L. 68, 107, 108, where Fitzgerald, B., after observing that, according to Blackstone (2 Com. 39), the name 'Free Fishery' is properly applicable only to a Several Fishery in public waters, said that, 'Free Fishery when used, as all admit it may be used, in the sense of a right of fishing not exclusive, is, if in alieno solo, not distinguishable from Common of Fishery'). "In Malcomson v. O'Dea (10 H. L. Ca. 593), where the question related to a fishery granted by the Crown before Magna Charta, Willes, J. (delivering the unanimous opinion of the judges), said: 'Some discussion took place during the argument as to the proper name of such a fishery, whether it ought not to have been called in the pleadings (following Blackstone) a 'Free' instead of a 'Several' fishery. This is more of the confusion which the ambiguous use of the word 'free' has occasioned, from a period so early as that of the Y. B. 7 H. 7, fol. 13, down to the case of Holford v. Bailey (18 L. J. Q. B. 109; 13 Q. B. 426), where it was clearly shown that the only substantial distinction is between an exclusive right of fishery, usually called 'several,' sometimes 'free (used as in 'free warren'), and a right in common with others, usually called 'common of fishery,' sometimes 'free' (used as in 'free port'). The fishery in this case is sufficiently described as a 'Several' Fishery, which means an exclusive right to fish in a given place, either with or without the property in the soil.' "A Several Fishery is presumed to comprehend the soil, till the contrary appears" (Hargrave's n, Co. Litt. 122 b: Vh, Marshall v. Ulleswater Nav. Co, 32 L. J. Q. B. 139; 3 B. & S. 732): Vf, R. v. Old Alresford, inf: Stat. Def., inf: SEVERAL FISHERY. Common of Fishery, sometimes also called 'Free Fishery,' is the right of fishing in another man's water in common with the owner of the soil, and perhaps also with other persons who may be entitled to the same right (Wms. on Rights of Common, 259). As this right is a profit à prendre (V. Fitzgerald v. Firbank, inf), it cannot be claimed by the inhabitants of a parish (Bland v. Lipscombe, 24 L. J. Q. B. 155 n; 4 E. & B. 713 n: Se, Goodman v. Saltash, 52 L. J. Q. B. 193; 7 App. Ca. FISHERY 728 FISHERY 633), or of a parish and manor (Allgood v. Gibson, 34 L. T. 883; 25 W. R. 60). "A Common Fishery (called by Hale, de Jur. Mar., cited 8 App. Ca. 177, A Public Common of Piscary'), which must be carefully distinguished from a Common of Fishery, is a Fishery which is free to all the public (Benett v. Costar, 8 Taunt. 183). It is submitted that a Common Fishery, being a profit à prendre, can only exist in a tidal river or the sea (Pearce v. Scotcher, 9 Q. B. D. 162, and the cases there cited)." (Elph. 576-579, who). Va, Dart, 426, 427. A "Fishery in GROSS," is applicable either to a Several Fishery or to a Common of Fishery if it belong to a person or class of persons independently, in contradistinction to appendancy (Woolrych on Waters, 2 ed., 127). In a parish settlement case it has been held that a lease of a Fishery, with the sedge flags and rushes therein, passed the soil (R. v. Old Alresford, 1 T. R. 358). But as to whether the grant of a "Fishery," simpliciter, will pass the soil, V. Co. Litt. 4 b: Dart, 427, 428: and as to what passes by "Fishery," V. per Littledale, J., Scratton v. Brown, 4 B. & C. 503. But neither such a grant, nor the grant of a Free Fishery," will exclude the grantor from the right to fish (Bloomfield v. Johnston, Ir. Rep. 8 C. L. 68); but a RESERVATION of THE right of fishing, means the exclusive right (Paget v. Milles, 3 Doug. 43), so, of course, where such an exclusive right is expressly granted (Fitzgerald v. Firbank, inf). Vf, A. "It was laid down in Smith v. Kemp (sup) and is repeated in 5 Com. Dig. p. 362, tit. Piscary, If a grant be de libera piscaria, the grantee shall have the property of the fish there, and shall maintain Trespass for fishing there.' If a person chooses to pay anything for the sport of catching fish and returning them to the water, of course, he can do so; but that is not what is understood by lawyers, or men of sense, as a Right of Fishing" (per Lindley, L. J., Fitzgerald v. Firbank, 1897, 2 Ch. 96; 66 L. J. Ch. 529; 76 L. T. 584). In construing a conveyance from the Landed Estates Court (Ir) purporting to convey "the Right of the Fishery" in certain waters, the Court will look at the rights of the parties at the time of the execution of the grant; and if the Owner, whose estate is being sold by the Court, had no Right of Fishery at the date of the grant nothing will pass by it (Gore v. M'Dermott, Ir. Rep. 1 C. L. 348). "The Fishing in the Weirs of Garrynoe"; held, capable of passing a Fishery not, necessarily, confined to the portion of the river abutting upon the lands of Garrynoe (Powell v. Heffernan, 8 L. R. Ir. 130). As to implied grant of Fishery; V. Devonshire v. Pattinson, 57 L. J. Q. B. 189; 20 Q. B. D. 263; 58 L. T. 392; 52 J. P. 276. Quà Fisheries (Ir) Act, 1850, 13 & 14 V. c. 88, "Fisheries,' shall FISHERY 729 FISHING mean and include, all fisheries whether Several or Public; and the words 'Several Fisheries,' shall mean and include, all fisheries lawfully pos sessed and enjoyed, as such (under any title whatsoever, being a good and valid title at law) exclusively of the public by any person or persons, whether in navigable waters or in waters not navigable, and whether the soil covered by such waters be vested in such person or persons or in any other person or persons" (s. 1); Vf, as to "Several Fishery," 5 & 6 V. c. 106, s. 114. "The Fisheries (Ir) Acts, 1842 to 1895"; V. Sch 2, Short Titles Act, 1896. Quà Salmon Fisheries (Scot) Act, 1862, 25 & 26 V. c. 97," Fisheries' and Fishery,' shall mean, Salmon Fisheries, and a Salmon Fishery, in any river or estuary, or in the sea" (s. 2). V. SALMON. By the law of Scotland, Salmon Fishings are inter regalia and primâ facie, Crown property; and by a Grant of "Fishings," without more, Salmon fishing will not pass, but if such a Grant is followed by 40 years' possession of Salmon fishing it will establish a right of Salmon Fishing, even against the Crown: being inter regalia such a right will not pass under the mere word " Pertinents" (Lord Advocate v. Sinclair, L. R. 1 Sc. & D. App. 174). "Fishery" as used in s. 20, Salmon Fishery Act, 1861, 24 & 25 V. c. 109, includes a contrivance, e.g. a Fishing Mill-Dam, which, with little trouble and expense, can be put into a state to be capable of catching fish (Hodgson v. Little, 14 C. B. N. S. 111, 121; 16 Ib. 198; 33 L. J. M. C. 229; 11 W. R. 782; 8 L. T. 358). "Fishery," quà Thames Conservancy Act, 1894, "includes Oyster and Shell fishery" (s. 3). V. SEA COAST: Paterson on the Fishery Laws: 5 Encyc. 359–365. FISHGARTH. — Is "a Dam or Weare in a River for taking fish, especially in the Rivers of Ouse and Humber" (Cowel). V. GARTH. FISHING. V. HUNTING: NET. Quà Part 4, Mer Shipping Act, 1894, "Fishing BOAT,' means, a VESSEL, of whatever size and in whatever way propelled, which is for the time being employed in SEA FISHING or in the Sea Fishing Service; but (save as otherwise expressly provided) that expression shall not include a Vessel used for catching fish otherwise than for PROFIT" (s. 370): Vh 5 Encyc. 365-369. V. SEA FISHING. Quà Sea Fisheries Act, 1883, 46 & 47 V. c. 22, "Fishing IMPLEMENT,' means, any net, line, float, barrel, buoy, or other instrument, engine, or implement, used or intended to be used, for the purpose of Sea-fishing" (s. 28). "Fishing Interests"; Stat. Def., 51 & 52 V. c. 54, s. 14. Scot. 58 & 59 V. c. 42, s. 28. A Dam built solely for milling purposes, and without any contrivances for catching fish, is not a "Fishing Mill Dam," within s. 4, 24 & 25 V. FISHING 730 FIT TO BE c. 109 (Garnett v. Backhouse, L. R. 3 Q. B. 30; 37 L. J. Q. B. 1; 8 B. & S. 490). Other Stat. Def., 26 & 27 V. c. 114, s. 44. Fishing VESSEL; V. FISHERMAN. "Fishing WEIR," as interpreted in Salmon Fishery Acts, 1861, 1865; V. Rolle v. Whyte, 37 L. J. Q. B. 105; L. R. 3 Q. B. 286; 8 B. & S. 116: Leconfield v. Lonsdale, 39 L. J. C. P. 305; L. R. 5 C. P. 657. For more recent Stat. Def., V. 36 & 37 V. C. 71, s. 4. FIT.- "As may seem fit"; V. OPINION. "A 'Fit' Person to execute an Office, is he, — 'qui melius et sciat et possit, officium illud intendere.' This word idoneus,' says Ld Coke, is oftentimes in law attributed to those who have any office or function; and he is said in law to be idoneus, apt and fit to execute his office, who has three things, Honesty, Knowledge, and Ability: Honesty to execute it truly, without malice, affection, or partiality; Knowledge to know what he ought duly to do; and Ability, as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it'" (Dwar. 685). But "Fit" or "Fit and Proper" has also the meaning just stated with the added condition that the person to be appointed is legally eligible, e.g. a" fit and proper" person to be appointed Churchwarden, s. 16, 1 & 2 W. 4, c. 38, must be resident in the parish (R. v. Harding, 6 Times Rep. 53; 34 S. J. 64: R. v. Cree, 67 L. T. 556; 57 J. P. 72: as to such residency, V. Stephenson v. Langston, 1 Hagg. Con. 379). So if legally eligible the "fit person" to be appointed a Workhouse Chaplain, s. 48, 1 & 2 V. c. 56, connotes "his fitness in point of years, activity, zeal, and discretion, as well as physical capability" (per Crampton, J., R. v. Poor Law Commrs, 3 Ir. Com. Law Rep. 159). V. OFFI CIATE. V. ELIGIBLE: IF THEY SHALL THINK FIT: THINK FIT. FIT FOR. A house is "fit for Habitation," within an agreement for a lease, although (being a new house) there may be slight settlements and though there may be minor matters of defective papering or such like (Faulkner v. Llewellin, 11 W. R. 1055). Vh, KEEP. Roll Tobacco, or Cut Tobacco "fit for Sale"; Stat. Def., 50 & 51 V. c. 15, s. 4. - FIT TO BE. An Action charging a serious Libel is "fit to be prosecuted in the High Court," and ought not to be remitted under s. 66, Co. Co. Act, 1888 (Farrer v. Lowe, 5 Times Rep. 234). An Action "fit to be tried" in the High Court, means, one more fit to be tried there than in an Inferior Court (Banks v. Hollingsworth, 1893, 1 Q. B. 442; 62 L. J. Q. B. 239; 68 L. T. 477; 41 W. R. 225; 57 J. P. 436); and where fraud and falsehood are alleged, the action is one emi FIT TO BE 731 FIXED ENGINE nently "fit" to be so tried (Simpson v. Shaw, 56 L. J. Q. B. 92; 56 L. T. 24; 3 Times Rep. 120: Vh, Cherry v. Endean, 55 L. J. Q. B. 292; 54 L. T. 763; 34 W. R. 458). FITS. Semble, that Fainting Fits are not "Epileptic, or other Fits," within a Declaration leading to a Life Policy (Shilling v. Accidental Insrce, 1 F. & F. 116). V. CAUSED BY. *FITTED. —V. FINISH. FITTING." More fitting," ss. 31 and 35, Ry C. C. Act, 1845; V. Morris v. Tottenham Ry, 1892, 2 Ch. 47; 61 L. J. Ch. 215; 66 L. T. 585; 40 W. R. 310. FITTINGS."Fittings for Gas," s. 14, Gasworks Clauses Act, 1847, includes all the apparatus for the supply or consumption of gas, including gas stoves used for heating (Gaslight & Coke Co v. Hardy, 56 L. J. Q. B. 168; 17 Q. B. D. 619; 55 L. T. 585; 35 W. R. 50; 51 J. P. 6; 2 Times Rep. 851: Same v. Smith, 3 Times Rep. 15). Water Supply "Fittings "; Stat. Def., Metropolis Water Act, 1871, 34 & 35 V. c. 113, s. 3. "Fixtures and Fitting up"; V. FIXTURES. Vesey FITZGERALD'S ACT. The Consolidated Fund Act, 1816, 56 G. 3, c. 98. FIVE MILE ACT.-35 Eliz. c. 2. FIX. - To fix an amount does not, necessarily, mean that one definite sum is to be ascertained once for all, therefore, the Loc Gov Board, in "fixing" the amount which, under s. 32, 4 & 5 W. 4, c. 76, is to be received or paid by a Parish affected by an alteration of a Poor Law Union, may order that the amount may be ascertained from time to time according to the varying sum of the assessment of the property in the Union altered and the Parish taken away respectively (R. v. Willesden, 82 L. T. 385). FIXED AND FASTENED.-As applied to a Conveyance of Machines; V. Metrop Counties Assrce v. Brown, 28 L. J. Ch. 581; 26 Bea. 454. Vf, FIXTURES: PERSONAL CHATTELS. "Affixed"; V. WINDOW. FIXED ENGINE. Stop Nets are "Fixed Engines" within the Salmon Fishery Acts (Gore v. Commrs for English Fisheries, 40 L. J. Q. B. 252; L. R. 6 Q. B. 561). By ss. 4 and 11, Salmon Fishery Act, 1861, 24 & 25 V. c. 109, "Fixed Engines are to include "Stake Nets, |