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AP.]

MONTGOMERY v. O'HARA.—In re KERR, otherwise M'ILWRAITH, an Infant

mined exactly as it would have been had it remained in the hands of the vendor.

[NAISH, L.J.-The words of the 5th sub-section of that section are: "to enforce which no proceedings are taken by the landlord." Is not the natural meaning of this that the notice to quit need only have been issued?]

Yes, but that has no operation in determining the tenancy. The only consistent interpretation which can be given to the Act is that you may move to stay proceedings up to the time that possession is taken. The previous decisions of the Court of Appeal proceed on this view. The Act of Parliament was to give certain rights to present tenants. The 1st section enabled a present tenant to sell his holding. The 8th enabled a present tenant to go into Court and have a fair rent fixed.

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[NAISH, L.J.-Does it not use the words "during the continuance of such tenancy?"] Yes that is, "to the very end". as long as it continues." We now turn to the 13th section, the most difficult to deal with; its words are, "the tenant may sell his tenancy at any time before but not after the execution of such writ or decree in any ejectment other than for non-payment of rent." That is quite as strong as the language used by the 8th section. For the purpose of sale the tenant's tenancy is to be deemed a subsisting tenancy notwithstanding the proceedings already taken to compel him to quit his holding, and it makes the dividing point, "the taking of possession on the execution of a decree," as in the 20th section. Can he, for the purpose of protecting his rights, only adopt the course of selling his tenancy?

LORD ASHBOURNE, C.-The order of the Queen's Bench Division in this action has been produced with care and deliberation, and the structure of it has evidently been fully considered by the judges of that Court. It has been argued for the appellants that inasmuch as the notice to quit in this case was served on the 11th of March, 1887, and had expired on the 25th of the following month; and as a writ of summons in ejectment on the title had been served on the 15th of July, 1888, but the originating notice of the tenant to have a fair rent fixed not until ten days later, the status of the defendant as tenant was gone, and it was not competent for the Queen's Bench Division to make the order they did. There might have been some force in that contention some years ago, but I do not think it is now open to the plaintiffs here. Under sub-section 3 of section 13 of the Land Act of 1881, the Court has power, on such terms and conditions as they may think fit, to stay or to postpone the ejectment proceedings pending the fixing of a judicial rent. The Queen's Bench Division has plainly acted on that sub-section. Section 20 is to be read in connection with it, and it is clear that any tenancy to which the Act applies can only be deemed to be determined when the landlord resumes possession of the holding, so that it is competent for the tenant to exercise the power which the Act gives him, at any time after the service of the notice to quit and before possession is taken by the landlord, no matter whether the originating notice has been served before or after the notice to quit expired. FITZGIBBON, BARRY, and NAISH, L.JJ., concurred. Appeal dismissed.

Solicitor for the plaintiff: Randal A. Howe.
Solicitor for the defendant: Hubert J. Tully.

[AP.

Reported by R. E. OSBORNE, Barrister-at-Law.

In re KERR, otherwise M'ILWRAITH, an Infant. Jan. 23, 24, 1889.-Illegitimate child-Right to custody Contest between putative father and brother of deceased mother-Habeas corpus.

When an illegitimate child, after the death of the mother, has legally, that is, without force or stratagem, been brought into the custody of the father, a writ of habeas corpus will not be granted on the application of a brother of the mother, although the mother in her lifetime gave the child into the custody of the applicant, and the child had remained in the custody of the applicant for some time after the mother's death. In re Crowe, 17 Ir. L. T. Rep. 72, approved.

Appeal from a decision of the Queen's Bench Division, refusing an application on behalf of the mother of an illegitimate child, for a writ of habeas corpus directed to the father of the illegitimate child, commanding him to produce the body of George Kerr, otherwise M'Ilwraith, the illegitimate child, to abide the order of the Court in relation thereto.

The infant, George Kerr, was the illegitimate son of William M'Ilwraith and the late Mary Kerr. The infant was born in Belfast on the 7th of November, 1881, in the house of a Mrs. Martin. The infant continued to live in Mrs. Martin's house, supported by his father, William M‘Ilwraith, till December, 1886.

The mother, Mary Kerr, married in 1887, and died in November of the same year. After the marriage of Mary Kerr the infant lived with her. It was alleged that shortly before her death the mother requested her brother, Thomas Kerr, to take charge of the infant, and shortly before the death of Mary Kerr the infant went to reside with this Thomas Kerr.

In December, 1887, a Mrs. M'Gill was alleged to have found the infant in a ragged condition in the streets in Belfast, and the infant was taken by her to the house of Mrs. Martin already mentioned.

It was, also, alleged that this was done with the consent of William M'Ilwraith, the father, who stated that he was willing to bear the expense of maintaining the infant, if he was allowed to retain the custody of it.

Cuming, for the appellant-When the putative father wrongfully takes possession of the child, he will be ordered to give him up: Rex. v. Moseley, 5 East, 223. In Rex v. Hopkins, 7 East, 578, a writ of habeas corpus was issued to restore the child to the custody of its mother. The mother of an illegitimate child has a natural right to its custody, The Queen v. Naish, 10 Q. B. Div. 454, and in this case the mother of the child requested the appellant, Thomas Kerr, to take charge of it. The child was illegally, i.e., by fraud and stratagem, removed from the custody of the applicant, and the writ ought to issue: In re Crowe, 17 Ir. L. T. Rep. 72.

R. E. Meredith, for the respondent-As against strangers, the mother has the right to the custody: Ord v. Blackett, 9 Mod. 116. A child that has been removed from the custody of the putative father by a stranger after the death of the mother, even if the stranger has acted on an express wish of the mother, writ of habeas corpus will issue: In re Crowe, 17 Ir. L. T. Rep. 72. Sir George Jessel, in The Queen v. Naish, 10 Q. B. D. 456, says that "The Court is now governed by equitable rules, and in equity regard was always had to the mother, the putative father, and the

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AP.]

In re KERR, otherwise M'ILWRAITH, an Infant.

relations on the mother's side." The father has a better claim than the relations on the mother's side. The child did not come unlawfully into the custody of the father.

The following cases were cited, also:-R. v. Soper, 5 T. R. 278; Ex p. Knee, 1 B. & P. 148; Strangeways v. Robinson, 4 Taunt. 498; Pope v. Sale, 7 Bing. 777; Bownes v. Marsh, 10 Q. B. 787; Ward v. St. Paul, 2 Br. Ch. C. 582; In re Meades, minors, Ir. R. 5 Eq.

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LORD ASHBOURNE, C.-This is an appeal from a decision of the Queen's Bench Division on an application as to the custody of an illegitimate child, which practically sought to interfere with the father's custody of the child after the mother was dead. The Queen's Bench Division (one of the Judges dissenting) arrived at the conclusion not to interfere with the custody of the child, but to leave it in the custody approved of by the father. That decision is, in my opinion, correct. The facts of the case are tolerably clear, and I do not think there is much ground for a substantial controversy with respect to them. It appears that the child was born in the house of Mrs. Martin, and that he lived in that house for six out of the seven years of his life. Some months before the mother died she took the child to live with herself. The child was handed over to the custody of a brother of the mother, a young man eighteen years of age, and it is stated that the mother, shortly before her death, requested him to look after the child, and that he consented.

This young man, the uncle of the child, comes now before this Court to contest the claim of the father, and he says that the claim of the father should not be acceded to, and that the child should be taken from the custody of its father and handed to him, a young man of 18 years of age, who is the child's maternal uncle. There is some slight controversy as to the circumstances of the case. The child was given into the custody of Kerr, the applicant, at the request of the mother, and remained in his possession for some few weeks after the mother's death, in fact until the 27th December, 1887. This young unmarried man, being engaged as a bricklayer, was necessarily absent at his occupation a greater part of the day, and was accordingly compelled to entrust the child to the care of someone else. On the 27th of December the child was seen alone in the street without anything on his head and with bare feet, and under these circumstances was found by Mrs. Magill and taken to the house of Mrs. Martin, where he had been born and passed six out of the seven years of his life. There is some doubt as to whether the father gave consent to take the child before it was taken by Mrs. Magill, but there is no doubt at least that he now sanctions the child being retained in Mrs. Martin's house. There is some evidence of the wish of the person whom I must, in a certain sense, call the step-father of the child, that he concurs in the wish of the father. The position is thus, that the child being in this custody, not illegally and without a breach of the peace, is there any law, or any policy of the law, that can be suggested to coerce the Court to direct that the child should be handed over from the custody of the putative father to some one selected by the mother? The Queen's Bench Division were of opinion that the habeas corpus should not issue, and I think that they were rightly of that opinion, and that their decision should be affirmed.

There is not much scope for controversy about the law; there is a clear principle of common sense and of common law applicable. In cases of this kind the

[AP.

claim of the mother is to be considered, then the claim of the father, and then the claim of blood relations. The mother of this illegitimate child is dead, but the father is alive, and the father wishes the custody of the child to remain as it is, and we do not wish to interfere. The principle of relative selection that I have referred to was laid down by Sir George Jessel, the Master of the Rolls in England, and Lord Justice Bowen, in the case of The Queen v. Naish, 10 Q. B. Div. 454. The Master of the Rolls says, at p. 456: "The Court is now governed by equitable rules, and in equity regard was always had to the mother, the putative father, and the relations on the mother's side. Natural relationship was thus looked to with a view to the benefit of the child. There is'in such a case a sort of blood relationship, which, though not legal, gives the natural relations a right to the custody of the child." Then there is the case of In re Crowe, an infant, reported in 17 Ir. L. T. Rep. 72, which was decided about the year 1883. The facts of that case are very similar to the present. There was a contest between the father and the representative of the deceased mother. In that case the custody of the father had been interfered with by stratagem, but there is no evidence here to justify us in saying that there was stratagem in this case. However, I do not need to go into that question. In that case the putative father's custody was interfered with, and the Court arrived at the conclusion that his right had also been invaded. I concur with that decision; and for all these reasons I am of opinion that the conclusion arrived at by the majority of the judges of the Queen's Bench Division was right, and that their order ought to be affirmed.

FITZGIBBON, L.J.-I concur, and carefully reading the judgment of Mr. Justice O'Brien, I think the ground on which he proceeded was that in his opinion there was, in the circumstances attending the arrival of the child in its present custody, a reason for removing it, and apparently he thought he ought to punish the father for complicity in the removal of the child to Mrs. Martin's house. Indeed, Mr. Justice O'Brien goes so far as to say that the child was stolen, and this view may have misled his judgment as to the facts, and as to the legal inferences to be drawn from these facts. This is a case in which a natural father had custody of the child. It is a case in which if the child was in legal custody, he is in the custody of his nearest blood relation, and if the child were not illegitimate, he could have been taken by the father even from the mother, subject only to the mother's right during the period of nurture. The child is over the age of six and under seven, and he was picked up in the streets and without any concealment by the woman in whose house he was born, and in whose house he spent six out of the seven years of his life. The woman who picked up the child was charged with doing so, as an offence, and she at once said that what she had done was done with the father's consent, and that the father had adopted and consented to what she had done. I think that if the father had placed the child at nurse, and afterwards found the child out alone in the streets with bare head and bare feet, he might justly infer that the child was not being cared for as it ought to be, and would be at liberty to place it in better custody.

With all respect to Mr. Justice O'Brien, I cannot see that the circumstances of the removal to Mrs. Martin's house were such as to justify us not only in punishing the father, who according to Ord v. Blackett

AP.] In re KERR, otherwise M'ILWRAITH, an Infant.-HOPE AND OTHERS v. CALLAGHAN.

(9 Mod. 116) would have been appointed guardian, but also in placing the child in care of a natural uncle, who has no house of his own, and is a young man of 18 years of age, and who could take care of the child only by placing it under the care of the person from whose care the child made its escape in the way that I have already mentioned. I concur in the order.

BARRY, L.J.-I, also, concur in the decision of the majority of the Queen's Bench Division. I agree with Lord Justice FitzGibbon in thinking that this is not a case in which a child was removed from the custody of the applicant by fraud or force. It is rather a case in which the putative father gets possession of the child by accident, and in that state of facts an application is made by a comparative stranger to take the child from the custody of the father, who has thus accidentally become possessed of him. I think that the decision of the Queen's Bench was right, and that it is clearly for the benefit of the unfortunate child. That a young

tradesman, who, no doubt, is a most respectable young man, but that a young tradesman, eighteen years of age, with no house of his own, but who lives only in lodgings, is a proper custodian of a young child six or seven years old, cannot be argued.

Though the mother of an illegitimate child has possibly no right to appoint a guardian to the child, still I wish to guard myself from laying down any general rule that the father may take it from any guardian the mother may appoint.* If, for example, the mother of an illegitimate child has taken it and supported it for some time, and the father has acquiesced in the management, and if after the death of the mother the child remains with her relations for some time, and the father has acquiesced, under these circumstances I could not say that I would recognise the rights of the putative father to come in, and, against the interests of the child, to disturb what has been done. The facts in this case, however, form a different transaction; the young man who had the child had it only for about a month, and there is no evidence of acquiescence by the father in that management, and the child was found barefooted_scrambling about in a gutter in a back street in Belfast, and when so found, it was taken by the woman who found it to the place which she knew had been its home, and the father approves of what she did.

Taking this view of the facts of the case, I do not think that the custody of the child should be disturbed.

NAISH, L.J.-I confess that I entertained doubts as to what the decision of the Court in this case ought to be. If I thought that the child had found its way improperly from the custody of the applicant, Kerr, to that of the father, I would be of opinion that a writ of habeas corpus should go to replace the child in the cus

In a recent Scottish case (Brand, petitioner, 26 Sc. L. R. 199), the Court, although the mother of a pupil bastard has no power to appoint by will a guardian to him, gave effect to her wishes where she had by will made such an appointment, being satisfied that the nominee was in a position to attend to the child's welfare. There the mother of a bastard who had been placed by her under the care of charitable persons of the Protestant faith, having become a Roman Catholic, made a will appointing a person of the latter faith her executor and the tutor of the bastard, and expressing a desire that the latter should be brought up a Roman Catholic. The Court being satisfied with the scheme proposed by the executor for the custody and education of the bastard, gave him the custody thereof, notwithstanding the opposition of those in whose care the child had been placed by the mother.-[E. N. B., Ed.]

[Q. B.

tody of Kerr. Three members of this Court are of opinion that there was nothing wrong in the acts of Mrs. Magill and Mrs. Martin who removed it. I entertain doubts, but on the whole, under the peculiar circumstances of the case, and considering that the child has been supported by the father for so long-and has been residing with the applicant only for a month-I think we cannot interfere with the father's custody. I do not think there was impropriety in the manner in which the child was brought into the father's custody. If there was, I would be of opinion that the habeas corpus should go, but I do not think there was any impropriety to justify us interfering in this case.

Appeal dismissed.t

Solicitor for the appellant: M'Er lean. Solicitors for the respondent: Harper & Mills.

HIGH COURT OF JUSTICE.

QUEEN'S BENCH DIVISION. Reported by T. S. F. BATTERSBY, Barrister-at-Law. (Before HARRISON, JOHNSON, O'BRIEN, and MURPHY, JJ.)

HOPE AND OTHERS v. CALLAGHAN.

Dec. 18, 1888.-Trespass in pursuit of game-Summons by landlord against person other than occupier or authorised deputy-Pursuit of rabbits—Lands in occupation of tenant subject 'to statutory conditions-Land Law Act, 1881, 8. 5-Ground Game Act, 1880, s. 7-27 & 28 Vic., c. 67, s. 1-27 Geo. III., c. 35, s. 10.

Rabbits constitute game, for trespass in pursuit of which the landlord, in the case of a judicial tenancy subject to the statutory conditions, reserving the game to him, under the Land Law Act, 1881, as well as in the case of a tenancy created by deed with a similar reservation, is qualified, by 27 & 28 Vic., c. 67, as though he were in occupation, to prosecute a person other than the occupier, under 27 Geo. III., c. 35, s. 10, notwithstanding such rights in respect of game as, interfering with reservations of game, are conferred on occupiers by the Ground Game Act, 1880.

Case stated by the Justices of the Peace at Castleblayney, in the County of Monaghan, pursuant to 20 & 21 Vic., c. 42. A summons had come on for hearing before them at Petty Sessions. The complainants were landlords of the lands of Annahale and Drumcrew, which were in the occupation of a tenant, named Patrick Smyth, as tenant holding under a judicial order fixing a fair rent, made pursuant to the Land Law Act, 1881, and which named "rabbits" as reserved with other game to the landlords. The defendant, James Callaghan, had not any interest in the lands. The complaint was that defendant, not being duly authorised, did go upon the lands of the complainants, at Drumcrew, in the district, to hunt for or otherwise pursue and take game. The evidence given in support of it was-that the defendant and another man, John Loughran, were on the occasion in question trespassing on the lands without authority, the defendant being

† See papers, by the present writer, on the custody of children, 17 Ir. L. T. & S. J. 417, 431, 445, 459, 473, 483.[E. N. B., Ed.]

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provided with nets and what was believed to be a ferret; that pheasants and other game were to be found on the lands, but that defendant was believed to be then seeking to take rabbits only. The complaint was dismissed without prejudice, and the Justices being required so to do by the complainants, stated the case for the opinion of this Division as to whether they were right or wrong in their determination.

That

J. A. Rynd for the complainants.-The point in Bruce v. M'Allister (8 L. R. Ir. 195, 15 Ir. L. T. & S. J. 310) was that a landlord, in cases not coming within the 27 & 28 Vic., c. 67, might prosecute as an informer, not " complaining" of trespass to his own lands, but " 'informing of trespass on lands of another his own tenant, for instance. The statute 27 George III., c. 35, s. 10, gave a right to occupiers to prosecute for trespass in pursuit of game. Much inconvenience having been suffered by the inability of owners not in occupation to prosecute, the statute 27 & 28 Vic., c. 67, enacted that where the owner or landlord, when letting the lands, had by deed reserved the game to himself, he should be deemed to be still in occupation for the purpose of prosecuting. Thus, the inconvenience of having to prosecute in the tenant's name, or as an informer, was remedied by giving to the landlord (who by deed reserved the game to himself) the artificial status of "occupier." And so matters rested until the Ground Game Act of 1880. statute interfered with game reservations, giving to the occupier the right to kill ground game, notwithstanding any contrary reservation, and giving the right as incident to and inseparable from his occupation, and to be exercised concurrently with the right of any other person entitled thereto. But in so interfering with the landlord's power of reservation, the statute equitably and strictly guarded and preserved the artificial status of " occupier" conferred upon the landlord by the prior statute of the Queen. For by section 7 of the Ground Game Act it was provided that the person who, though not in occupation, had the sole right of killing game (save to the extent encroached upon by the Ground Game Act) should still, for the purpose of prosecuting, have the same authority or status as before; and the Ground Game Act specified hares and rabbits as being game and constituting the kind of game called in the statute "ground game." In that state of the law, the Land Law Act, 1881, s. 5, declaring that the word " 'game was used to include hares, rabbits," pheasants, &c., reserves as one of the incidents or statutory conditions of the statutory tenancy, hunting, shooting, or taking game, and if the landlord at the commencement of the statutory term so required, then the right of shooting and taking game should belong exclusively to the landlord, subject to the Ground Game Act, 1880; and the provisions of 27 & 28 Vic., c. 67, should extend as though such exclusive right were reserved by the landlord to himself by deed. Thus the artificial status of "occupier was preserved, and the word "game" declared to include "rabbits." The position of complainants was the same exactly as if they had let the lands by deed, thereby reserving to themselves the exclusive right of taking game and rabbits as such, and found a stranger on the lands in pursuit of the rabbits. Manifestly the Act of George, as modified and extended by the three successive Acts of the Queen, gave the complainants the right to prosecute; and it was the duty of the magistrates to

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T. L. O'Shaughnessy, for the defendant, as respondent. The case of Bruce v. M'Allister was not argued.

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There was no appearance for the respondent, and if that case has any application to the present it is doubtful whether authorities would not induce the Court to ignore Bruce v. M'Allister. Judge Neligan, in Adair v. Pomeroy, held, in the County Court, that rabbits were not game under the 27 & 28 Vic., c. 67, and reversed a decision of Magistrates inflicting a fine for trespass in pursuit of rabbits. Upon that decision the majority of the Bench in the present case grounded their judgment. The provision relied on by the appellants in the Land Law Act, 1881, was merely an enumeration of statutory conditions. Attached to a tenancy it may have given a personal right, but it did not create or declare any general law. The definition of game was merely for the purpose of the subsection giving the personal right. The Ground Game Act rendered it impossible that any landlord could have an exclusive right to rabbits. Without that exclusive right there could be no status to prosecute under the 27 & 28 Vic., c. 67. It is remarkable that the Ground Game Act, section 7, did not use the phraseology or modus adopted in the former Act, of treating a landlord who reserved game to himself by deed as equivalent to an occupier. Section 7 of the Ground Game Act states that only for the purpose of any Act authorising the institution of legal proceedings should the landlord have authority to institute such proceedings as if he were exclusive owner. Legal proceedings does not mean criminal proceedings such as the present prosecution.

Rynd, in reply-General law may be enacted incidentally in provisions, the main purpose of which is to regulate personal rights in particular cases. For instance, the extension of 27 & 28 Vic., c. 67, by section 5 of the Land Law Act, 1881, is general, although in relation to a particular purpose. And as to legal proceedings being something opposed to criminal proceedings, the opposite to "criminal" is "civil," and not legal. Legal comprises both civil and criminal.

HARRISON, J.-The Court are clearly of opinion that the magistrates were wrong in their determination. The effect of the statutes is that rabbits are game, and that the landlord, in the case of a present tenancy under a judicial order fixing a fair rent reserving the game to him-just like a landlord of a tenancy created by deed, with a similar reservation—is qualified under 27 & 28 Vic., c. 67, to prosecute under the 10th section of 27 George III., c. 35, as though he were in actual occupation of the lands, and entitled so to maintain trespass. The Ground Game Act makes no difference; for while it makes an encroachment on his power to reserve game exclusively, it provides that his power and right to prosecute should, nevertheless, remain the same.* The case must go back to the magistrates, with the intimation from this Court that they were wrong in their previous determination, and must proceed according to law.

JOHNSON, O'BRIEN, and MURPHY, JJ., concurred. Order accordingly. Solicitors for the appellants: Hugh Swanzy & Son. Solicitor for the respondent: W. J. Molloy.

See, further, as to the Ground Game Act, 24 Ir. L. T. & S. J. 7; 22 ib. 151; 20 ib. 94, 275; 19 ib. 51, 193; 18 ib. 205, 487.-[E.N.B. Ed.]

Ex.]

BOARD OF CONSERVATORS OF WATERFORD FISHERY DISTRICT V. CONNOLLY.

EXCHEQUER DIVISION.

Reported by T. S. F. BATTERSBY, Barrister-at-Law. (Before PALLES, C.B., Dowse, B., and ANDREWS, J.) THE BOARD OF CONSERVATORS OF THE WATERFORD FISHERY DISTRICT v. CONNOLLY.

[Ex.

think any lawyer would contend that a several fishery existed in half an inland river where opposite banks are held by different owners." See, too, judgment of Lefroy, C.J., in Beauman v. Kinsella (8 I. C. L. R 291).

[Dowse, B.-It is the rule in America* that a several fishery exists in each owner of opposite banks, even in

Nov. 8, 1889.-Fishery Acts-Illegal fishing—the cases of those enormous rivers the Mississippi and Several fishery-Riparian owner of one bank-Written permission.

A riparian owner (unless the "several fishery” in his waters has been vested in other persons, by grant or otherwise) is proprietor of a “several fishery" in the waters adjoining his land, usque ad medium filium aquæ.

The

Appeal by way of case stated from an order by the magistrates in Petty Sessions at Clonmel. summons was taken under 5 & 6 Vict. c. 106, ss. 65 & 66, and the facts appeared from the case stated as follows:-At a Petty Sessions held in and for the Petty Sessions District of Clonmel, on March 1, 1889, the defendant was charged for that at Ballinaraha, on Feb. 22, 1889, he not being owner of a several fishery, or licensed in writing by the owner as renter of a several fishery, did, in the inland and fresh water portion of the river Suir, make use of and fish with a snap net contrary to law. It was admitted that the defendant had the following written permission: "I do hereby give permission to John Connolly to fish with casts and nets for salmon in the river Suir from Mrs. Butler's bounds to Mr. Hayden's bounds in Lindville. Signed, Patrick Stokes, Feb. 20, 1889."

Both complainant and defendant agreed that the above permission covered the townland of Ballinaraha within which the fishing by the defendant took place on Feb. 22, and it was, also, admitted that the place in question is situate within the island and fresh water portion of the river Suir. It was, also, conceded that Mr. Stokes was entitled to give the above permission in his capacity of owner or renter of the lands of Ballinaraha, and it was contended on the part of the complainant that a permission from a riparian owner to fish to the centre thread of the stream only was not sufficient to authorise the use of a snap net within that limit, as such riparian owner could not be held to be the owner of a "several fishery" within the meaning of ss. 65 & 66 of 5 & 6 Vict. c. 106, under which the case was brought. And it was contended on the part of the defendant that Mr. Stokes was the owner or renter of a several fishery in the river Suir at Ballinaraha, from the bank at the Tipperary side to the centre thread of the stream, and that defendant having Mr. Stokes' permission was entitled to use a snap net; and the justices, being of opinion that Mr. Stokes possessed a several fishery in the river Suir at Ballinaraha, gave judgment for the defendant.

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F. Fleming, with him John Roche, Q.C., for the appellants. We contend that a "several fishery only exist when both banks of a river are in possession of one owner. The definition of a "several fishery" in 13 & 14 Vic. is ancillary to that in the 26 & 27 Vic. c. 114, s. 24.

[ANDREWS, J.-In the latter proprietary rights have dropped out.]

This point has been decided by Judge De Moleyns in a case of Jones v. Doyle, beard on June 13, 1887, at Thomastown. In that case he said, "What I hold and what has always been held is that a several fishery, to extend so far, must include the owners of both banks and of the intervening waters. I do not

Missouri, and it was also held to be the law in the Ulswater case in England].

The section refers to lateral extension, not to breadth. J. H. Campbell was not called on.

PALLES, C.B.-I should not in this case think it necessary to say anything but for the statement made on the authority of Judge De Moleyns that the practice has "always been the other way" from that in which we now decide the law. The question arises on the construction of the 5 & 6 Vict. c. 106, ss. 65 & 66. Section 56 enacts that "in the inland and fresh-water portions of rivers and lakes in Ireland no person save the owner of a several fishery within the limits thereof shall at any period of the year lay, draw, make use of, or fish with haul, draft, seine or other net for the taking of salmon and trout," unless in the cases mentioned, and by s. 66 it is provided that " no person shall lay, draw, make use of, or fish with any nets within the limits of any several fishery without a license in writing from the owner or renter of such fishery." Now, it is admitted that the defendant fished on but one side of the river and that he had a license in writing from the owner of the bank on that side. If that owner was owner of a several fishery therein the magistrates were right in their decision. In this case we are bound to assume that the owner of the land was owner usque ad medium filium aquæ. It is not an easement nor incorporeal hereditament, as we pointed out in the Duke of Devonshire v. Neill (2 L. R. I. 132). This gentleman is owner of the bank on the Tipperary side. He is entitled to fish in the half of the river facing his bank just as he is entitled to take game on the land portion of his property. There is no doubt in the world that he is entitled to a "several fishery" unless the definition of a "several fishery" be read in a non-natural sense. But the definition is perfectly right. It is in the 5 & 6 Vic. c. 106, s. 114, which enacts that a “several fishery " shall be construed to mean, "in all rivers, or parts of rivers, or lakes, where the tide does not ebb or flow, and which by law are not deemed public navigable rivers or lakes the proprietors in fee of the adjoining lands shall be considered to be possessed (or I should rather say 'seized') of a several fishery within the bounds and limits of the said lands, or so far as they are seized or possessed of the soil and bed of such rivers or lakes." Taking that definition in its natural sense it is perfectly clear. The judgment of Chief Justice Lefroy in Beauman v. Kinsella (8 I. C. L. R. 291) has been entirely misunderstood. On looking at that case it appears every word of it to be strictly and accurately correct. That was an action of trespass by the owner of one half of a river against the owner of the other half. The defendant claimed the fishing of half of the river Owen Gorman under a patent of Charles I. which granted in express words half of all fisheries therein, while the lands at the other side of the river were conveyed to the plaintiff's ancestor at various times. Now, those words, "half of all fisheries in the

* See 11 Ir. L. T. & S. J. 253, 268.—(E. N. B., Ed.]

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