
    
      Inhabitants of the County of Penobscot vs. John Treat & al. Same vs. James Saunders Jr. & al.
    
    In an action to recover the penalty for obstructing the passage of salmon, &c. in Penobscot Bay and River, contrary to the provisions of stat. 1835, c. 194, § 5, the declaration is bad, if it do not allege, that the fish warden gave notice of u what is required to make such passage or sluice way sufficient and convenient,” and of il the time in which the same shall be done.”
    These were actions brought by the County of Penobscot to recover the penalty for obstructing the free passage of salmon, shad and alewives in the Penobscot Bay and River, and the streams emptying into the same, contrary to the provisions of the statute of 1835, c. 194. The defendants demurred to the declaration in each case, and the plaintiffs joined in demurrer. The defects for which the declaration was held bad will be seen in the opinion of the Court.
    The arguments were in writing.
    
      W. Abbott, for the defendants,
    argued in support of the demurrer, and cited 1 Chiity’s PI. 404 ; 1 Saund. 135, note 3 ; Bige-low v. Johnston, 13 Johns. R. 428; Com. Big. Tit. PI. C. 22, 76; ib. Action upon st. A. 3; 25 Com. L. Rep. 318 ; Bartlett v. Crazier, 17 Johns. R. 456; Wheeler v. Willard, 14 Pick. 489.
    
      Brinley argued for the plaintiffs,
    and cited 14 Petersdorff, 510, 514; Commonwealth v. Buggies, 10 Mass. R. 391 ; 3 Harrison’s Dig. 2052, citing 3 Dow, 13, and Cowper, 391; 2 Y. & Jerv. 
      196; Oliver’s Precedents, 449, in note ; Terry v. Foster, I Mass. R. 145; Church v. Crocker, 3 Mass. R. 81; Holland v. Make-piece, 8 Mass. R. 423; Somerset v. IJighton, 12 Mass. R. 385 ; Holbrook v. Holbrook, 1 Pick. 258; Stoughton v. Baker, 4 Mass. It. 522; Commonwealth v. Chapin, 5 Pick. 198; Commonwealth v. Buggies, 10 Mass. It. 391; Cotirill v. Myrick, 3 Fairf. 222; 2 496; 1 Chitty’s PI. 386; 1 Black. Com. 856; Douglass, 97; Bac. Ab. Stat. L; Willes, 210; 2 Wils. 376; 4 B. Sy Aid. 242; 1 T. R. 145; 1 Stark. R. 92; 1 Ld. Raym. 382 ; 6 T. R. 776 ; Stephens on PI. 174; Gould on PI. 461.
   By the Court.

The declaration is bad, because it does not state that the fish warden gave notice of what is required to make such passage or sluice way sufficient and convenient,” and of the time in which the same shall be done,” as required by the act of 1835, c. 194, § 5, entitled “ an act for the preservation of the salmon, shad and alewive fisheries in Penobscot Bay and River, and their tributary waters.” As was decided in County of Hancock v. Eastern River L. & S. Co. ante, p. 303.  