#### Benjamin Melvin Junior *versus*Phineas Whiting

A *free*fishery is not an exclusive fishery.

Evidence of what was sworn to by a deceased witness in a former action between the same parties on the same general subject, is not admissible, unless the point in issue is the same.

Case for the destruction of the plaintiff’s *several*fishery in the Merrimack river. The defendant pleaded the general issue, and soil and freehold in himself. Trial before *Morton*J.

The plaintiff claimed the fishery by prescription. To support his title he offered in evidence the record of a judgment in a former action between the same parties, respecting the fishery at the same place, in which Melvin was defendant, and Whiting was plaintiff; which was admitted without objection.

That was an action of trespass, in which it was alleged that Melvin entered the close of Whiting, covered with water, and there took fish. Melvin pleaded that he was seised in fee of land on the bank of the Merrimack river, and that he had by prescription a *free*fishery in the fishery mentioned in Whiting’s declaration, in which fishery he (Melvin) and all those whose estate he had, fished, and still of right ought to fish, at his and their free will and pleasure. Issue was taken on these allegations ; and the jury found that Melvin, and all those whose estate, &c. from time whereof, &c. have been used and accustomed to fish in the fishery at their free will and pleasure, and that Melvin still of right ought to fish in the fishery.

The plaintiff' also introduced evidence tending to show that he, and those whose estate he had, had possessed the fishery for more than sixty years and beyond the memory of man. To rebut this the defendant offered parol evidence of the testimony given on the trial of the former action, by two witnesses who had since deceased. This was objected to by the plaintiff, but was admitted.

The plaintiff contended that the record of the former judgment was conclusive evidence of his title to the fishery as set forth in his declaration. The defendant, on the other hand, contended that it proved conclusively that the plaintiff had no such exclusive right in the fishery as he had described, and as was necessary to support this action.

*84*Oct. 14th.*

The jury were instructed that the record was not conclusive either for the plaintiff or the defendant; that although it established in the plaintiff a right to take fish in the fishery in question, yet it did not support his claim to the exclusive right to the fishery, nor show such a property in him as was necessary to the support of this action ; but that this must depend upon the other evidence in the case.

A verdict was found for the defendant. The plaintiff excepted to the above instructions ; if they were wrong, or if the parol evidence of the testimony of the deceased witnesses was inadmissible, a new trial was to be granted; otherwise judgment was to be rendered upon the verdict.

*T.*Fuller, for the plaintiff,

on the point that the parol evidence of the testimony of the deceased witnesses ought to have been rejected, referred to 1 Phil. Ev. (2d ed.) 199, cites *Rex*v. Jollijfe, 4 T. R. 290.

He contended that a *free*fishery is an *exclusive*fishery, and that therefore the former judgment was conclusive in favor of the plaintiff. 2 Bl. Com. 39.

*Stearns*and *Hoar,*contra,

cited as to the admissibility of the evidence, *Doncaster*v. *Day,*3 Taunt. 262; *Jackson*v. *Bailey,*2 Johns. R. 17; *Strutt*v. *Bovingdon,*5 Esp. R. 56 ; *Coker*v. *Farewell,*2 P. Wms. 563; *Pike*v. *Crouch,*1 Ld. Raym. 730. On the other point they cited Co. Litt. 122 *a,*and Hargr. note, 181 ; *Seymour*v. *Courtenay,*5 Burr. 2814.

The opinion of the Court was afterwards delivered as drawn up by

Parker C. J.

We are of opinion that the record is not conclusive, because the verdict in the former case does not establish the right of the plaintiff as set up in this. The issue presented by the plea in the former action being found for the defendant, the present plaintiff, it is supposed that thereby an exclusive right to the fishery was established in him. But we do not consider the title set up in that plea to be that of a several or exclusive fishery. The extent of the claim in that plea is that of a free fishery, and the verdict may be considered as establishing the plea, although it falls short of it in terms.

It is true Sir *William Blackstone,*in his Commentaries, gives the quality of exclusiveness to a free fishery, making it differ *85from a several fishery only in this, that in the latter the owner must have property in the soil under the water, whereas "n the former he may have title to the fishery without owning the land. This opinion seems to be founded on the case of *Smith*v. *Kemp, 2*Salk, 637, in which two judges held that *libera piscaría*meant an exclusive right, and one, that it meant only common of piscary, according to Lord *Colee,*1 Inst. 122. The doctrine of *Coke*seems to be fully recognised by counsel and the court in the case of *Seymour*v. *Ld. Courtenay,*5 Burr. 2814. And *Hargrave,*in his comments on the several opinions on this disputed point, concludes in favor of Lord *Cokers*definition of a free fishery.

We adopt this opinion, thinking it the most reasonable, and certainly more conformable to the popular-sense of the term *free fishery*in this country, which probably has been derived from *early*legislation on this subject. Colony Laws, 1641, 1647. (Anc. Chart. 149.) 1

It is plain therefore, under this construction of the term *free fishery,*that the record of the former action is not *conclusive*evidence, if evidence at all, of the right set up in this action, which is that of a several or exclusive fishery.2

We are of opinion however, that for the other cause stated, there must be a new trial. The action, though between the same parties and on the same general subject, is not the same action. The point in issue is not the same. There it was on a free or common fishery ; here, on a-several fishery. Testimony of what witnesses said under oath on another trial may be received, but under great restrictions, for it is very dangerous testimony. In England the witness is held to swear to the very words of the deceased witness, which in most cases is impossible ; and so the rule is nearly useless.3 In the case before us the evidence received went to the testimony given on the stand four or five years before. Not only the very words cannot be remembered, but it may be expected that *86even the tenor and effect will he mistaken. The evidence not coming within the rule technically, we think it ought to have been rejected.4

*New ‘rial granted.*

1

 See 3 Kent. (3d ed.) 410.

2

 See *Standish*v. Parker, *2*Pick. (2nded.) 22, 23, notes.

3

 See *United States*v. Wood, 3 Wash, C. C. R. 440; *Wilbur*v. *Selden,*6 Cowen, 362; *Ballenger*v. *Burnes,*3 Devereux, 460; *Bowie*v. *O'Neal,*5 Har. & Johns. 266; *Caton*v. Lennox, 5 Randolph, 31; *Cornell v. Green,*10 Serg Rawle, 14; *Wolf*v. *Wyeth,*31 Serg. & Rawle, 149.

4

 Evidence before arbitrators is not admissible at a subsequent trial before a jury. *Jessup*v. *Cook,*1 Halsted, 434. See *Jackson*v. *Winchester,*4 Dallas, 206.