that it should be paid for in promissory notes, payable four months after the delivery of the goods. A few days after the sale, the vendee gave the factor, in part payment, two promissory notes. Soon afterwards the factor committed an act of bankruptcy, and the defendants were chosen assignees under the commission. The bankrupt delivered up the two notes to the assignees, and they received the money due upon them. They likewise confirmed the sale, and settled the account with the vendee, and received the balance. An action for money had and received having been brought by the plaintiffs against the assignees, for the recovery of the money received on the notes, and the money received on the settlement of the account, it was holden, that the plaintiffs were entitled to recover both sums; Willes C. J. (who delivered the opinion of the court) observing, as to the first, that the notes, having been in the hands of the bankrupt at the time of his bankruptcy, were capable of being distinguished from the rest of the bankrupt's estate, and therefore could not be applied to the bankrupt's debts; consequently the plaintiffs were entitled to recover the value of those notes which had been received by the defendants; in like manner as if the goods had remained in specie, unsold in the bankrupt's hands at the time of the bankruptcy, the plaintiffs might have recovered them in an action of trover. As to the second sum, the general rule was, that if a person received money, which ought to be paid to another, an action would lie as for money had and received; that the assignees having received the money which belonged to the plaintiffs, they ought to have paid it to the plaintiffs, and not having done so, this action would lie against them for so much money had and received to the use of the plaintiff's.

Thirdly, A factor has not a lien in respect of debts which have accrued previously to the time at which his character of factor commenced.

A., a factor, sold the goods of B., in his own name", to C.; C., without paying for these goods, sent another parcel of goods to A. to sell for him, not having employed A. as a factor before. C. became bankrupt, and his assignees claimed the goods sent by C. to A., which still remained unsold, tendering the charges upon those goods. A. refused to deliver them, claiming a lien upon them for the price of the former goods sold by him to C., the balance between A. and B., being in favour of A. An action of trover having been brought by the assignees, against A., for the value of the

a Houghton v. Matthews, per Heath, Rooke, and Chambre Js, Alvanley C. J. dissentiente. 3 Bos, & Pul. 485.

goods sent by C., it was holden, that they were entitled to

recover.

Liability of Principal. The maxim, that the principal is civilly responsible for the acts of his agent, universally prevails both in courts of law and equity*.

Upon this principle it was holden, by Holt C. J., that a merchant was answerable for the deceit of his factor, who had sold some silk to the plaintiff, as silk of a superior quality, knowing it to be silk of an inferior quality' (8).

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. But, from necessity, an excep tion has been introduced in the case of factors and brokers, because, from the nature of the transaction in which they are engaged, the contracts they make for other persons cannot be proved without them. Hence, it has been holden, that a factor is a good witness to prove the contract of sale, in an action by the principal, for the price of the goods sold. And, in a late 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 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 (9).

x 4 T. R. 66. per Kenyon C. J.
y Hern v. Nichols, Salk. 289. Per Holt
C. J. at Nisi Prius.

z Dixon v. Cooper, 3 Wils. 40.
a Benjamin v. Porteus, 2 H. Bl. 590,
per Heath and Rooke Js.

(8) But see 9 H. 6. 53. b. cited in Bro. Abr. Actions sur le case, pl. 8. where it was said by the court, if my servant sell false stuff, an action on the case does not lie against me, unless he sold it through my covin or by my command.

(9) Eyre C. J. differed from the two judges, conceiving that "this was not simply a contract that the witness made for another, but for another and himself. His profit was not to arise from the profit of the principal, but was collateral to and beyond it. He could not wrong the principal, but he might wrong the person with whom he dealt, by screwing him up beyond the real value of the goods, for the sake of his own profit, and therefore he had a separate interest to establish a particular contract." The C. J. admitted, however, that, if the principle upon which the two judges relied, viz. there was not any difference in point of interest between a person who sold upon commission, and one who was to have a share of the profit, could be supported, the evidence ought to be received.

CHAP. XXI.

FISHERY.

I. Of the Right of Fishing in the Sea, and in the Creeks and Arms thereof, and in fresh Rivers. II. Of the different Kinds of Fishery-Several Fishery -Free Fishery-Common of Fishery.

1. Of the Right of Fishing 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 ori ginally lodged in the owner thereof. But although the king is the owner, and as a consequent 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 subject. 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

a Ld. Hale, De jure maris, p. 1. c. 4. Hargrave's Tracts, vol. 1. p. 11. See also the case of the Royal Fishery of the Banne, Dav. R. 55.

b See also 8 Ed. 4. 19. a. 4 T. R. 437. S. P. admitted by Kenyon C. J. aud Ashhurst J.

and the public, it was incumbent on the plaintiff to prove his 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 exclusive right by prescription, traversing the general right. It was holden, that the defendant ought to take issue on the traverse, and ought not to traverse the prescriptive right claimed by the plaintiff; for the first traverse was a material one, and would put in issue the_true question in dispute between the parties.

In Bagott v. Orr, 2 Bos. & Pul. 472. the court seem to have been of opinion, that primâ 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.

Fresh rivers, of what kind soever, of common right belong to the owners of the soil adjacent; 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 the 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.

c The Mayor, &c. of Orford v. Ri- d Ld. Hale, De Jure Maris, p. 1. c. 1. chardson, 4 T. R. 437. Hargrave's Tracts, vol. 1. p. 5. Da. vis's R. 57. a. b.

II. Of the different Kinds of Fishery-Several Fishery -Free Fishery-Common 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 another (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, 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 defendants (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.

If a person be seized of a river, and by deed grant a several fishery in the same, and makes livery of seisin secundum formam carte, the soil does not pass; and if the river become dry, the grantor may take the benefit of the soil, for a particular right only passed to the grantee.

A prescriptive right to a several fishery in a navigable river may pass as appurtenant to a manor. A right of

e Fitz. Abr. Barre, pl. 27. cites M. 20 H. 6. 4.

f Hargrave's Note, Co. Lit. 122. a. n. (7).

g 17 E. 4. 6. b. 18 E. 4. b. Per Paston

J. 19 H. 6. 30. a. Fitz. Abr. Barre, pl. 20. S. C.

h1 Inst. 4. b.

i Rogers v. Allen, 1 Camp. N. P. C.

309.

(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.