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money or negotiable instrument advanced on the security thereof; and in case of the bankruptcy of the factor or agent, the owner of the goods so pledged and redeemed shall be held to have discharged pro tanto his debt to the estate of such bankrupt.” See Taylor v. Kymer, 3 B. & Ad. 320, where the transfer of India warrants under the circumstances was not holden to be a sale or disposition within the meaning of the foregoing statute. The remaining sections of this statute relate to the prosecution of agents fraudulently pledging the goods of their principal.

Evidence. It is a general rule of evidence, that where a witness has a direct interest in the event of a cause, his testimony cannot be received (9). But, from necessity, an exception has been introduced in the case of factors and brokers, because from the nature of the transactions in which they are engaged, the contracts they make for other persons cannot be proved without them. Hence it has been holden P, that a factor is a good witness to prove the contract of sale, inan action by the principal, for the price of the goods sold. And, in a later case, it was determined, that there was not any difference, in point of interest, between a person who sells upon commission, and one who is to have a share of

p Dixon v. Cooper, 3 Wils. 40.

q Benjamin v. Porteus, 2 H. Bl. 590.

per Heath and Rooke Js.

(9) By stat. 3 & 4 W. 4. c. 42. s. 26, in order to render the rejection of witnesses, on the ground of interest, less frequent, it is enacted, “that if any witness shall be objected to as incompetent, on the ground that the verdict or judgment would be admissible in evidence for or against him, such witness shall nevertheless be examined; but, in that case, a verdict or judgment in that action in favour of the party on whose behalf he shall have been examined, shall not be admissible in evidence for him, or any one claiming under him, nor shall a verdict or judgment against the party, on whose behalf he shall have been examined, be admissible in evidence against him or any one claiming under him.” And by s. 27, "the name of every witness objected to as incompetent on the ground that such verdict or judgment would be admissible in evidence for or against him, shall, at the trial, be indorsed on the record or document on which the trial shall be had, together with the name of the party on whose behalf he was examined, by some officer of the court, at the request of either party, and shall be afterwards entered on the record of the judgment; and such indorsement or entry shall be sufficient evidence that such witness was examined, in any subsequent proceeding in which the verdict or judgment shall be offered in evidence.”

the profit; and, consequently, that a person who was employed to sell goods, and was to receive for his trouble whatever money he could procure for them beyond a stated sum, was a competent witness to prove the contract between the seller and buyer. So a broker, who has effected a policy and has a lien on it for his premiums, is a competent' witness, (notwithstanding his lien,) to prove all matters connected with the policy

r Hunter v. Leathley, 10 B. and C. 858.

CHAP. XXI.

FISHERY.

I. Of the Right of Fishery in the Sea and in the Crecks and

Arms thereof, and in fresh Rivers. II. Of the different kinds of Fishery-Several Fishery

Free Fishery-Common of Fishery.

I. Of the Right of Fishery in the Sea, and in the Creeks and

Arms thereof, and in fresh Rivers.

“The right of fishing in the sea”, and the creeks and arms thereof, is originally lodged in the crown, in like manner as the right of fishing in a private or inland river is originally lodged in the owner thereof. But although the king is the owner, and as a consequence of his property, hath the primary right of fishing in the sea, or creeks or arms thereof, yet all the king's subjects in England have regularly a liberty of fishing in the sea, and the creeks and arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks, or navigable rivers, where the king, or some particular subject, hath gained a propriety exclusive of that common liberty, either by the king's charter or grant, or by custom and usage, or prescription.” It appears from this passage, that Lord Hale thought an exclusive right of fishery in an arm of the sea might belong to a subjectb. And of this opinion were the Court of B. R. in Carter and another v. Murcot and another, 4 Burr. 2162. where it was decided, that a plea which prescribed for a several fishery in an arm of the sea, was good; but it was there said, that, as the presumption in such case was in favour of the king and public, it was incumbent on the plaintiff to provehis exclusive right, agreeably to the rule laid down by Lord Hale, in 1 Mod. 105, that if any one will appropriate a privilege to himself, the proof lies on his side. In Ward v. Creswell, Willes Rep. 265. and 16 Vin. Abr. 354. tit. Piscary (B.) S. C. the court held, that all the subjects of England, of common right, might fish in the sea, it being for the good of the commonwealth, and for the sustenance of the people of the realm, and that therefore a prescription for it, as appurtenant to a particular township, was void, and as absurd as a prescription would be for travelling the king's highway, or for the use of the air as appurtenant to a particular estate. To trespass for fishing in the plaintiff's fishery, defendant pleaded, that the place is an arm of the sea, in which every subject has a right to fish; the plaintiff in his replication claimed an exelusive right by prescription, traversing the general right. It was holden, that this was a bad and immaterial traverse, and might be passed over by the defendant, and that it was competent to him to traverse the prescriptive right of the plaintiff stated in the replication. In Bagott v. Orr, 2 Bos. & Pul. 472. the court seem to have been of opinion, that prima facie every subject has a right to take fish found on the sea shore between high and low water mark, but that such general right might be restrained by an exclusive right in an individual.

a Ld. Hale, De Jure Maris, p. 1. c. 4. b See also 8. Ed 4. 19. a. 4 T. R. 439.

Hargrave's Tracts, vol. 1. p. 11. See S, P. admitted by Kenyon, C. J. and also the case of the Royal Fishery of Ashhurst, J. the Banne. Dav. R. 35.

Fresh rivers, of what kind soever, of common right belong to the owners of the soil adjacentd; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquæ, and the owners of the other side the right of soil or ownership, and fishing unto the filum aquæ on their side. And if a man be owner of land on both sides, in common presumption he is owner of the whole river, and hath the right of fishing according to the extent of his land in length. But special usage may alter that common presumption; for one may have the river, and others the soil adjacent; or one may have the river and soil thereof, and another the free or several fishery in that river.

c Richardson v. the Mayor, &c of Ore d Ld. Hale, De Jure Maris, p. 1, c. I. ford, 2 H. Bl. 182.

Hargrave's Tracts, vol. 1. p. 5. Daris's R. 57. a. b.

II. Of the different kinds of Fishery-Several Fishery

Free FisheryCommon of Fishery.

A several fishery is where a person has an exclusive right of fishery, either in his own soil or in the soil of anothere (1). He who has a several fishery is not necessarily the owner of the soilf; but as the exclusive right of fishing is an incident to the ownership of the soil, it will be presumed s, until the contrary be shewn, that such right resides in the owner of the soil. Hence, to an action of trespass for an injury to a right of several fishery, it is a good plea that the soil and freehold belong to defendanth (2). To this, however, the plaintiff may reply title to the several fishery, either by prescription or grant, thereby rebutting the presumption of the right of several fishery being still vested in the owner of the soil. Where a subject was owner of a several fishery in a navigable river, where the tide flows and reflows, which fishery had been granted to him before magna charta, by the description of separalis piscaria ; it was holdenį, that it was an incorporeal and not a territorial hereditament, and that a term for years in it, could not be created without deed.

If a person be seized of a riverk, and by deed grant a several fishery in the same, and makes livery of seisin secundum

e Fitz. Abr. Barre, pl. 27. cites M. 20. h 17 E. 4.6. b. 18 Ed. 4. b. Per PasH. 6. 4.

ton, J. 18 H. 6. 30. a. Fitz. Abr. f Hargrave's Note, Co, Litt. 122. a. n. Barre, pl. 20. S. C. (7).

i D. of Somerset v. Fogwell, 5 B. & C. g See 5 B. & C. 886.

875. k i Inst. 4 b. But see Hargrave's note.

(1) “ In order to constitute a several fishery, it is requisite that the party claiming it should so far have the right of fishing independently of all others, as that no person should have a co-extensive right with him in the object claimed. But a partial independent right in another, or a limited liberty, does not derogate from the right of the general owner." Per Lord Mansfield, C. J. delivering the resolution of the court, Seymour and others v. Ld. Courtenay and others, 5 Burr. 2814.

(2) See also 10 H. 7. 24. b. 28. b. a case very clearly reported; but it is said there, that the plea is not good, unless it conclude with praying, whether plaintiff shall have his action without shewing title. Per Brian, J. but in 20. H. 6. 4. a. Newton, C. J., C. B. was of opinion, that the plea might be concluded either way.

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