COURT OF QUEEN'S BENCH, IRELAND.

STEWART V. CUBITT.

This case came before the Court on an appeal from the decision of the justices assembled at the Ballycastle Petty Sessions, County of Antrim, on the 31st of January, l867, by whom the appellant, Robert Stewart, was fined for using a fixed net or engine for catching salmon in the tida1 water of the sea at Ballycastle. The case had been fully argued before the Court, and judgment was now pronounced. The net was a draft net, one end being fastened round a rock near the shore, and the other to a buoy anchored out about eighty or ninety yards. The buoy was then taken on board a boat which was fastened to the moorings; and the net thus fixed, i.e., one end to the rock, and the other end to the buoy in the boat, was kept stationary for one hour and a half. The sea end of the net was then loosed from the buoy, and hauled on shore by means of a rope which extended from it to the shore. The magistrates decided that the net was a "fixed net" within the statutes, and used contrary to the statutes, i.e., not having been legally erected in 1862. They also rejected evidence offered by the appellant to prove that the place in which said net was fished was within the limits of a several fishery, and the questions put to the Court were, whether the magistrates were correct in point of law; 1st, in excluding the said evidence; and 2nd, in holding the said net to be used as a "fixed net" within the statutes.

Mr. Justice George said - This case has been stated for the opinion of the Court at the instance of the appellant, Robert Stewart, under the 20 & 21 of Vic., cap. 43, by the justices of Petty Sessions at Ballycastle, assembled on the 31st of January, 1867. The appellant was charged at the suit of the respondent. Mr. Cubitt, with a breach of the fishery laws, under the 4th sec. of 26 & 27 Vic., cap. 114 (1863), for using a fixed net or engine for catching salmon in the tidal waters of the sea, at Ballycastle, in the County of Antrim. It was proved at the trial below that the appellant, by his servant, on the 25th of June, 1866, fished and caught salmon with a net, which is now conceded by all was a fixed net within the meaning of the statute. But it was also proved that this mode of fishing, by a similar net, was the same as was in use at the same place before the year 1834, at which time Hector began to fish with bag nets. It was, however, contended that the net was not used in the open sea in 1862. Bag nets were proved to have been introduced in the year l834, and used in the same place till they were condemned by the Fishery Commissioners in 1864 ; further, that they were used in 1862; but before that time, in 1834, the mode of catching salmon in Ballycastle was the same as that now complained of. The appellant proved a licence, as tenant, to fish from Mr. Alexander Boyd, and he tendered evidence, which the magistrates did not receive, that the place where he fished was within the limits of the several fishery of which Mr. Alexander Boyd was possessed, and of whom the appellant was the licensee. It was contended on the part of the appellant, - first, that the net was not fixed ; secondly, that as licensee of the owner of a several fishery, he was not liable to a penalty for fishing within its limits. The justices decided, as is now admitted to be right, and fairly, that the net was fixed; and secondly, that the evidence of the place in question being within the limits of the several fishery was immaterial and inadmissible, and gave judgment against the appellant, inflicting a penalty of £5 upon him, The opinion of the Court is now required as to whether the justices were right in point of law - first, in rejecting the evidence, and secondly, in holding that the net was fixed within the meaning of the statute; and, if not, what should be done. The second point, as to the net, is one that is now conceded by the appellant - that the net was a fixed net and therefore, the only question for the consideration of the Court is whether the defence that the net was used within the limits of a several fishery was good, and whether that evidence was immateria1 and inadmissible. This appeal depends upon the construction given to the Act 5 & 6 Vic., cap. 106, an Act to regulate the Irish fisheries. and the Act 26 & 27 Vic., cap. 114, passed on the 28th of July, in the year 1863, to amend the laws relating to the fisheries in Ireland. By the 5 & 6 Vie., cap. 106, and section 18, it is enacted that whereas doubts existed with respect to the right to raise stake weirs and erect bag nets, and other fixed engines for the purpose of catching salmon in the tidal waters on the coast of Ireland; and, as it was necessary to define and declare such right, it is therefore, declared that it shall be lawful for anyone possessed of or entitled to a several fishery in the estuaries or on the coast of Ireland, to fix or erect, or authorize or empower any licensee or assignee to fix within the limits and point of such several fishery any stake or bag net for the taking of salmon. The 19th sec. is not involved in the present case ; that applies to harbours and the sea coast, Just as in the case we have heard of Sandes to erect a fixed net where no several fishery existed. Bag nets are specified in the 18th sec., and are included in sec. 19; but that Act of Parliament does not expressly define the fixed net or bag not, so as to include them in the definition of fixed nets. But by the next Act passed - the 13th & 14th Vic., cap. 88 - passed in the year 1850, all former interpretation clauses are repealed; and it expressly provides that the words "fixed net or engine" shall extend to and include all stake and bag nets, or other engines or devices used for like purpose, of whatever construction or material they may be made, and whether they are fixed to the soil, or whether held by the hand, or made stationary in any way. Thus stood the law up to 1863, and up to that time it is quite plain that fixed nets, including bag nets, might clearly be erected within the limits of said fishery previous to that time, and up to that year. Then on the 28th of July, 1863, the late Act was passed - the 26 & 27 Vic., cap. 114. That Act has two objects, - first. to prohibit as far as possible all bag nets; and secondly, to prevent the increase of fixed nets. By sec. 3 of that Act it is expressly provided that, after the passing of the Act, no bag net should be placed, or allowed to be continued, in any river, or the estuary of any river, as defined by the Commissioners, or within a distance of less than three statute miles of the mouth of the river, and that any bag net found so erected should be destroyed, the net forfeited, and penalties imposed on the parties erecting them. Now, it is perfectly manifest that that 3rd clause is distinct and clear - that at the passing of the Act of l863 no bag net was to be allowed upon any pretext whatever to be erected within the limits of the estuary, and within three miles of the mouth of the river; and accordingly, referring to the case that has been lately brought to the notice of the Court, there the decision was right so far as it was affected by the construction of the 3rd section of the Act. In that case there had been originally a legal net used. It became, just as here, a bag net when Hector introduced them in 1834. But the case differs most widely in this point, that in the course taken by the Commissioners in that case it was proved the parties continued to use a bag net. Here the party has not continued to use a bag net. He has restored his mode of fishing to the old mode, which, according to the case, was in use in 1834, till the introduction of bag nets in that year, and he has gone back to what was then the legitimate mode of fishing. Sandes' case, therefore, does not directly rule this, because, as I said, it differs inasmuch as there the parties continued to use the net; here they do not. Therefore I do not think that it rules this case, except to a very small inference upon the whole case - that as a big net it was illegal, without expressing any opinion that it would be legal if it was a fixed net. Two of the objects of that Act were to prohibit bag nets and prevent the increase of fixed nets, and accordingly, by section 3, it is provided that bag nets, which are described, will be destroyed, and by section 4 it is enacted that no fixed net that was not legally erected for catching salmon or trout before the passing of the Act of 1862, shall be placed in any inland or tidal waters, and that any nets so erected in contravention of this Act were to be destroyed, and the parties were made liable to penalties of £5, if not more. Then upon 5 & 6' Vic.. Cap. 106. secs, 18 and 19, and the 13 & 14 Vic., cap. 88, secs. 3 and 4, depend the legality of the net in question, and the power of the justices to impose penalties. It is alleged here that the mode of fishing by the species of net used by the appellant on the 25th of June, 1866 and for using which net he was fined by the magistrates, is the same as that which was in use at the same place before 1834 ; that bag nets were introduced by Hector in 1834, and that the same mode of fishing was continued from that time to the period of 1842, when the 5 & 6 of Vic. was passed; and also to the period of 1862, referred to in the late Act, and up to 1864, when bag nets were condemned by the Commissioners. It is, therefore, plain that although the net used by the appellant was not used or erected as a fixed net in the open season of l862, yet that the same mode and right of fishing in the same place was exercised up to 1834 by nets the same as that used in 1866 and from 1834 to 1864 the same right of fishing in the same place was exercised by bag nets that is fixed nets, for all bag nets are fixed nets, although all fixed nets are not bag nets The effect of the 26 & 27 Vic., cap. 114, is to prohibit totally the mode of fishing by bag net; but the 4th Section does not prohibit fixed nets, provided they were used in 1862. And although the identical stakes and ropes used in l866 were not erected in 1862, probably the same fishing in the same place was carried on in 1862 by a bag net, that being then an illegal fixed net, had to be discontinued, but there is nothing in the Act to prevent fishing by legal fixed nets, provided they were in existence in 1862. I am, therefore, of opinion that the mode of fishing by net used by the appellant on the 25th of June, 1866 was legal in a several fishery, and had been enjoyed in 1862, and that, therefore, the evidence tendered by the appellant, to show that the locus in quo was the several fishery of Mr. Alexander Boyd, was material, and ought to have been received by the justices. The Act ot 1863 is a highly penal statute, and is calculated to work if it has not already brought, injustice to individuals and destruction to long established and chartered rights. It ought to receive, in my mind, a liberal construction. It does not abolish the right of fishing. It only prohibits a certain mode, and gives the right to be continued under another form - the ordinary fixed net - provided some fixed net of any kind was used in the same fishery and the same place in 1862.

Mr. Justice Fitzgerald said - I am pleased the Court is able to come to the conclusion that the evidence rejected by the justices ought to have been received, although I do not agree with the result or the reasons arrived at by my brother George. After the elaborate judgment delivered I will not waste time by stating my reasons for dissenting but shall confine myself merely to stating that I do not concur in the judgment of the Court. At the same time, I think it is right that the appellant should know he may erect any kind of weir, or net, or any other kind of structure he may think lit. The statute does not prohibit him.

Mr Justice O'Brien. - In this case I confess I was not free from doubt during a considerable portion of the argument, but I am now of the same opinion as my brother George stated - namely, that the conviction of the justices should be quashed. In the case before the Court of Queen's Bench the point raised was the same as the ground raised here - that it had not been fished as a stake net in 1862, and was then and is now a bag net, and was fished in contravention of the 3rd section. In that case the Court made an order so far only as declaring it to be bad as a bag net, and made no order upon the subject that if it were altered into another description of net it might be legal. I cannot but consider that decision is in the direction contended for here by the appellant; and upon looking at the 4th section, and judging by the clear words of the legislature of the construction that ought to be put upon the Act, I can conceive nothing more unjust in principle, or anything amounting to what is called spoliation by the Act, if the result should deprive this gentleman of the right of the weir altogether. The weir was used for the purpose of a bag net in 1862, and legally used too; but it being found desirable to abolish bag nets altogether and to prevent the erection of them in future, the Act of l863 was passed, and then the bag net was removed and converted into another description of net that is strictly legal within the meaning of the Act of Parliament. But is it to be said that because the net was illegal as one kind of net and legal as another the man is to be deprived of the use of it altogether? Or is it to be said that because being illegal as one kind of net he had not the power, by an alteration in compliance with the Act, of making it legal as another kind? The Act never contemplated such a state of things; and I would be glad on any ground I could to come to a conclusion that would prevent such a result as that being reached. I think the decision of the Court of Queen's Bench, therefore, inclines in this way, and I proceed to act upon that decision. Upon looking at the section itself, I think the words, "No fixed net should be used" are only concerned in referring to the place and locality where the net was. I do not think that it means that the net was illegal in itself, and I cannot bring my mind to the conclusion that the 4th section contends to that; therefore, I think that the evidence tendered by the appellant was admissible and material, and we accordingly reverse the decision of the magistrates below.