Fishing from the earliest times - Blog

PROPERTY IN FISH—CURIOUS LAWSUIT 233Now is the accepted hour for " the hsherman to throw outa httle beyond his finger tips a hook concealed in bait," and(to prevent alarm) smuggle the fish out gently, one by one, by avery slight jerk.His mate receives the fish on pieces of cloth,so that no floundering about or other noise may scare theircomrades. On no account must " the betrayer of the others "be captured, lest instantly the shoal take to flight and be nomore seen.But " there is a story that a fisherman, having quarrelledwith his mate, threw out a hook to one of the leading fishes,which he easily spotted and with malicious intent captured.The fish was, however, recognised in the market by his mate,accordingly anagainst whom he had conceived this malice :action for damages {danmi formulam editam) was brought,which the defendant, as Mucianus adds, was condemned topay."Now, as shown above, (i) a fish is " res nullius," (2) a fishbecomes the property of him who first " reduces it into possession,"(3) the sea, with some exceptions which do not applyhere, is not capable of individual ownership.If " the betrayer of his kind " was till mahcious captureadmittedly and of set purpose left free in the sea, how could ithave been reduced into possession, how could any title in ithave been acquired, and, lastly— granted some kind of possession—by what actio or legal formula could such possession havebeen enforced ?These points were to me a stumbling-block, till ProfessorCourtney Kenny of Cambridge kindly came to my aid. Asthe extension here of Mansuefadio is apparently unique, andwould possibly have been repudiated by jurists after Mucian'stime, we seem to be faced by a novel point, which on accountof its intricacy and interest will appeal to people learned inthe Roman Law.The Professor's letter runs : " Ownership in the Anthiasmust have been created by that form of Occupatio of a resnullius, which consists, not by the physical detention by angling,or by a piscina, but in mere mansuefactio. This form isfamiliar for birds [Dig., 41. 2. 3. 15 and for Enghsh Law,: