Mode of recovery. Said fine to be recovered, with costs of prosecution, one same. Ibid. And all masters are made liable to pay the fine aforesaid, for the offences of their servants; and all parents for the offences of their children, under age, and not Parents and masters being servants. answerable for the offences of their children and servants. Stat. 1805, c. 55. bited. Another statute has also provided, that, if any person shall offer for sale, set fire to, or throw any lighted cracker, squib, rocket, or serpent, within this common- Squibs, ete. prohi wealth, without the license of the selectmen of the several towns respectively, first obtained therefor, he shall forfeit, for every such offence, the sum of five dollars; one moiety to the use of the poor of the town, in which the offence shall be committed, and the other moiety to the use of the prosecutor; to be recovered by action of debt, or by information before any justice of the peace of Mode of recovery. the county in which the offence shall be committed, with the costs of suits. Penalty. To whose use. TITLE LXV. Stat. 1641. Thomas's ed. Laws. 3 Vol. p. 140. Appendix. FISHERY AND FOWLING. By statute it is enacted, that every inhabitant, who is an householder, shall have free fishing and fowling in any great ponds, bays, coves, and rivers, so far as the sea ebbs and flows, within the precincts of the town where they dwell, unless the freemen of the same town, or the general, court have otherwise appropriated them. Provided, that no town shall appropriate to any particular person, or persons, any great pond, containing more than ten acres of land; and that no person shall come upon another's propriety without their leave, otherwise than as hereafter expressed; the which clearly to determine: It is declared, that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have the propriety to the low-water-mark, where the sea doth not ebb above an hundred rods, and not more wherever it ebbs further. Provided, that such proprietor shall not, by this liberty, have power to stop or hinder the passage of boats, or other vessels, in, or through any sea, creeks, or coves, to other men's houses, or lands. And for great ponds, lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass, on foot, through any man's propriety for that end, so they trespass not upon any man's corn, or meadow. (1) (1) In the case of Coolidge v. Williams, 4 Mass. Rep. 144, the court remarked, that "towns adjoining or extending across a navigable river, may own the soil of the flats, and even of the channel, if a grant has been obtained from the government; but the property of the fish, and also of all tide-waters, is in the public. But it seems to be a part of the common law of the state, that the town may appropriate the fish, if not appropriated by the legislature; but for taking the fish, no man could lawfully go on the soil of another without his leave. This rule of our common law, probably, originated from a declaration of common liberties, made by the general court of the colony of Massachusetts Bay. If, therefore, no appropriation has been made of the fish, any citizen may take them, so that he does not trespass on the land of others. But any town, adjoining any river, may appropriate the fish taken within its limits; and, that the town, on the opposite side of the river, may have the same right, the limits must not include the tide. waters ebbing and flowing, but the shores on which the fish are drawn and placed, when they may be said to be taken according to the intent of this privilege. If the fish, when caught swimming in the public tidewaters, are to be considered as taken within the limits of any town, before they are hauled on shore, it will be difficult, in many cases, to define the interfering rights of towns, situate on opposite banks: And when the channel is not granted, fish swimming there, out of the limits of any town, would not be subject to appropriation. "The power of appropriation, only, not meeting the wishes of many towns, acts have been passed authorizing them, not only to fix the times and manner of taking the fish, but also the places, and the disposition of them when taken; and to sell the exclusive right of fishing; and guarding this authority with pecuniary penalties. And the place of fishing is always understood to be, that part of the shore used for employing seines and nets, or other engines, and for bringing the fish to land; and not any part of the tidewaters in which they were swimming." TITLE LXVI. Cun. Dict. cites Cun. Diet. cites Stat. 1784, c. 8, s. 1. Two justices, quorum FORCIBLE ENTRY AND DETAINER. Ат T common law, a man disseized of any lands, or tenements, if he could not prevail by fair means, might lawfully regain the possession by force, unless he were put to a necessity to bring his action, by having neglected to enter in due time. But this indulgence of the common law, in suffering persons to regain the lands they were unlawfully deprived of, having been found by experience to be very prejudicial to the public peace, by giving an opportunity to powerful men, under the pretence of feigned titles, forcibly to eject their weak neighbours, and also by force to retain their wrongful possessions, it was thought necessary by many severe laws to restrain all persons from the use of such violent methods of doing themselves justice. In England, the first of these laws was enacted in the reign of Edward the third, and the last in the reign of James the first. On this subject, there is a statute of this commonwealth, which enacts, that two justices of the peace, quorum unus, shall have authority to inquire by a jury, as well against those who make unlawful and forcible entry into lands or tenements, and with a strong hand detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully and by force hold the same. And if it be found, upon such inquiry, that an unlawful and forcible entry hath been made, and that the same lands or tenements are held and detained with force and a strong hand; or that the same after a lawful entry are held unlawfully, and with force and a strong hand; then that such justices shall cause the party complaining to have restitution thereof. 1. What will amount to a forcible entry, or a forcible detainer. 2. Proceedings by which to recover the possession against the wrongdoer. 3. The evidence. I. What will amount to a forcible entry, or a forcible detainer. A forcible entry must regularly be with a strong hand, with unusual weapons, or with menace of life or limb. If a man enters peaceably into a house, but turns the party out of possession by force; or, by threats, frights him out of possession, it is in law, a forcible entry. If a house be bolted, it is forcible to break it open; but it is not so to draw a latch and enter into the house; and if a man whose entry is lawful, shall entice the other out of the house, and enter, the door being open, or only latched, his entry is justifible. If one find a man out of his house, and forcibly withhold him from returning to it, and send persons to take peaceable possession thereof, in the party's absence, this, by some opinions, says Hawkins, is no forcible entry, inasmuch as he did no violence to the house, but only to the person of the other; but he himself is of a contrary opinion, for though the force be not actually done upon the land, nor in the very act of entry, yet since it is used with an immediate intent to make such entry, and the manner of doing it only prevents the opposition, it cannot be said to be without force. If several come in company, where their entry is not lawful, and all of them, saying one, enter in a peaceable manner, and that one only uses force, it is a forcible entry in them all; because they come in company to do an unlawful act and therefore, the act of the one is the act of them all, and he is presumed to be only the instrument of the rest. But otherwise it is, where one had a right of entry; for there they only come to do a lawful act, and therefore it is the force of him only who used it. 2 Bac. Abr. 558. Ibid. Ibid. Ibid. Ibid. 559. |