
    Joseph Baker, Jr. vs. John Wentworth & al.
    
    The stat. of 1835, c. 194, for the preservation of fish in Penobscot Bay and River and their tributary waters, forbids all persons, under penalties, either to take fish, or to impede their passage “ in weirs,” from sundown on Saturday, until sunrise on Monday, although the fish may have entered into the weir before the commencement of that time.
    Debt by the plaintiff, as a fish warden of the town of Orringion, to recover of the defendants, owners of a fish weir in Penobscot River, for the penalties imposed by the stat. 1835, c. 194, for the preservation of fish in the Penobscot waters, for keeping the gate of the weir open at an unlawful time, and for taking fish at a time forbidden by the law. At the trial, before Weston C. J., it appeared, that on Saturday, May 21, 1836, after sundown, the defendants had opened the gate of their weir, but that they had put boards across the passage way, the entrance to the weir being closed previously, which prevented the free passage of fish. The jury found, that the defendants took from their weir on Saturday night, after sunset, fifty shad which had entered the weir before sunset, and that they took therefrom no fish which had entered after sunset. There was no way of securing the shad which had entered the weir before sundown, but by interposing the boards across the passage until the tide had so far ebbed that they might be taken.
    
      •The counsel for the defendants insisted, that they had a right to take after sunset the shad that had entered before, and that in so doing, or in^interposing the boards across the passage way as a means necessary for the exercise of this right, the entrance to the weir being closed, they incurred no penalties whatever. The Chief Justice instructed the jury, that if the testimony was believed, the penalties were incurred. If this instruction was erroneous, the verdict for the plaintiff was to be set aside.
    
      Rogers argued,
    that the objection made at the trial was well taken, and fatal to the action. The instruction was therefore wrong. He cited Coolidge y. Williams, ,4 Mass. R. 140 ; dreary v. Cooke, 14 Mass. R. 488; Melody v. Reab, 4 Mass. R. 471; Gfbtion v. Jenney, 15 Mass. R. 205; Whitney v. Whitney, 14 Mass. R. 88; Holbrook v. Holbrook, 1 Pick. 248.
    
      Poor, for the plaintiff,
    argued in support of the ruling at the trial, and insisted, that the construction put upon the statute by the defendants was a virtual repeal of it. He cited opinion of the Court, 7 Mass. R. 523; Melody v. Reab, 4 Mass. R. 411; 2 Cowen, 419; 2 Inst. 611.
   The opinion of the Court was drawn up by

Weston C. J.

The statute under consideration of 1835, c. 194, was made for the preservation of the kinds of fish, therein mentioned. And it is to receive a reasonable construction, in fur? therance of that public and beneficial object. The second section positively requires that the gate of the weir should be kept open, during the period, when the passage of the fish was not to be impeded. By the fourth section, the owners of weirs are at liberty to take fish between sunrise on Monday, and sunset on Saturday in each week.' Whatever could be secured within this period, are lawfully taken for their use. From sunset on Saturday to sunrise on Monday, the law forbids them under penalties, either to take fish or to impede their passage “ in weirs.” The terms of the statute are too plain and clear in oúr judgment, to justify the con? struction, for which the counsel for the defendants contends.

Judgment on the verdict,  