10 Mass. 391 | Mass. | 1813
delivered the opinion of the Court. [ * 393 ]
The charge against the defendant in this indictment is of facts which do not, at common law, import a crime or punishable offence. But an ancient provincial statute prohibits the setting, erecting, or making, on or across any river any wears or other disturbances or encumbrance, &c., unless by a license, to be obtained as in the statute is directed; and enacts and declares that all wears, &c., or other encumbrance, which shall be set up or made on or across any river, to the straitening or obstructing of the fish, &c., without the license specified, shall be a common nuisance, to be demolished and pulled down, not to be again repaired or amended; and authorizes as well the Court of General Sessions as two justices, to remove the nuisance after proper proceedings.
The defendant having been convicted, the only doubt in our minds is, whether the obstruction described is of a nature to be within the provisions of this act. To obstruct the fish in their natural course by a seine or net, set, made, and erected, in and across a river, seems to be possibly descriptive of every act of fishing with those implements. And there are no words in the indictment which distinguish this case as the permanent erection of a seine or net, to be found when the sheriff repairs to the river to remove the nuisance, which seems to be the only remedy provided by the statute.
As to the jurisdiction, we have no doubt of that, supposing the case to be within the prohibition of the statute; for, it being declared by that to be a common nuisance, the statute attaches to it all the remedies which the common law provides in that case. The special remedy by the statute is cumulative.
Nor is this statute to be regarded as repealed or obsolete; but the offence is not sufficiently described in the indictment until some words are added to it, so as to be within the provisions of the statute, which evidently applies to some thing permanently erected and remaining for some time, which may be a subject of removal —• not a net or seine, thrown in and withdrawn at pleasure,
Judgment arrested.
[Vide Inhabitants of Wate-town vs. Draper, 4 Mass Rep. 165. — Ed ]