
    [681] [*] YARD against CARMAN.
    Parol evidence to explain a will, inadmissible. Exclusive right to a fishery, questioned by Pehh'iitgtoh', J.
    This was an action of trespass. The subject of controversy was a right to a fishery, in the river Delaware, called the Duck Island lower fishery, in the township of Nottingham, in the county of Burlington. The declaration contained seven counts; but as the jury found a verdict on two counts only, the third and seventh, it will be unnecessary to give the contents of the others.
    The third count stated, that the defendant, on the 20th March, 1808, and on divers other days and times, between that day and the 14th of April following, with force and arms, &c., fished in the free fishery of the plaintiff, in the river Delaware, &c., and fish from his fishery aforesaid, to wit: 20,000 shad, of the value of $1,000, then, and at the several times aforesaid, there found, did take and carry away.
    The seventh count stated, that the defendant, on the 14th April 1808, at the township, &c. with force and [|] arms, &e., cut to pieces, damaged, and entirely spoiled a certain net line, of the goods and chattels of the plaintiff there found, of the value of $30. The said net line being then and there attached, and belonging to a certain fishing net, of the goods and chattels of the plaintiff, of the value of $200.
    To this declaration the defendant, pleaded, first, not guilty.
    
    Second, that the fishery in the several counts óf the declaration mentioned, was the several fishery of him the defendant, and Joseph Carman; and that he, in his own right, and by command, and under the authority [682] of the said Joseph Carman, fished in the fishery as in the several fishery of the defendant and the said Joseph Carman; and the fish in the said declaration mentioned as the fish of the fishery of them, the said defendant and Joseph Carman, thereout took and carried away, as it was lawful for him to do.
    The plaintiff, in his replication, set out a title in himself to one equal fourth part of the said fishery, which he derived by mesne conveyances, from one Caleb Carman, and avers that the said fishery was the free fishery of him the plaintiff in the said one equal undivided fourth part, and denies that the said fishery was the several fishery of the defendant and the said Joseph Carman.
    The defendant, after the usual protestations, rejoins, that the said fishery was the several fishery of the defendant and the said Joseph Carman; and not the fishery of the plaintiff, and issue was-taken thereof. ,
    The cause was tried at the Burlington Circuit, before Judge Eossell. On the trial, the will of Caleb Carman, dated in January, 1803, was given in evidence; by which it appeared, that he bequeathed to his son Benjamin, and his grandson Caleb Carman, in equal moieties, the fishery, occupied by, and leased to Thomas Thompson. It also appeared, that in the [*] same will, he gave to his son Joshua, (the defendant) and his grandson, Joseph Carman, “the other of my fisheries, which they the said Joshua and Joseph occupied last season, to be equally divided between them, share and share alike.” Caleb Carman died in July, 1807. The plaintiff, Yard, gave in evidence a lease from Benjamin Car-man, for his right in the fishery, dated in September, 1807. Although it appeared in evidence, that Thompson, before the date of the will, had fished under leases of old Caleb Car-man, in several places near the place in controversy, yet the witnesses fully proved, that in the season of 1802, that is, the season next before the will was made, that Thompson fished at the lower or bar fishery, which was the fishery in controversy, under a lease from Carman; and that Joshua and Joseph Carman also fished at the same fishery the same season, and that there was no other fishery near the place at the time. Thompson had one half, and Joshua and Joseph the other, fishing, turn and turn about; that after the death of Caleb Carman, Yard, under the lease of Benjamin, claimed one fourth of the fishery, and fished there, one season, taking the fourth haul, and commenced in the same way in the Spring of 1808, when the defendant disputed his right, and according to the phraseology of fishermen, under-run him, and actually cut the line of his net while he was making a haul. The testimony having raised doubts as to the meaning of the will, John Allen, [683] the man who wrote the will, was offered as a witness to prove the declarations of the testator at the time of making it. This testimony was objected to by the counsel for the defendant, but admitted by the judge, reserving the point. He swore that the testator, at the time the will was drawn, told him that he owned a fishery at Duck Island, and wished to divide it into four parts; and Joshua and Joseph had occupied a part of it, and got considerable money, and Benjamin had none, and he should give him the half of the half of the lower [*] fishery, occupied by Thomas Thompson; that the testator appeared to consider the right held by Thompson, as one fishery, and the part fished by Joshua and Joseph, as fisheries, and said that one half of the lower bar fishery was held by Thompson, under lease, and the other half by Joshua and Joseph, and called it his fishery at Duck Island, and mentioned no other, and said that he intended the fourth for Benjamin.
    The jury found the defendant guilty on the third and seventh counts; and assessed the damages at $650.
    On the coming in of the postea the defendant’s counsel obtained a rule nisi for a new trial, which was argued the last term.
    
      Ewing, for the defendant.
    The jury have not found all the issues. The title was put in issue, and the jury have given no answer to it. The plaintiff ought to have been nonsuited at the trial; the action was not supported by the evidence. The declaration was for fishing in the fishery of the plaintiff. The evidence, if it proved anything respecting the title, proved that the plaintiff and defendant were tenants in common. Esp. Bin. ffll; 5 Baa. Trespass K; 3 Baa. Joint Tenants,• L. 1, 2; Coke Lit. 199. The court admitted unlawful testimony. The declarations of the testator were inadmissible. Cases T. Talbot, 21fi; 2 Atk. 372; Powell on Levises, Iff 7. The damages are excessive; the whole evidence shows the damages were trifling.
    
      Woodruff, contra.
    There was no necessity for finding each particular issue; a general finding was sufficient. Barnes’ Notes, Iffl. A tenant in common, has a right to maintain an action against his co-tenant, in case he destroys the thing held in common. The plaintiff did not claim an exclusive right to fish, but a right to fish in common with the defendant. Parol evidence was let in to explain an ambiguity raised by the evidence of the defendant. The words proved, were the declarations of the testator at the time of making the will, and proper. Bob. on Fraud, 38 ; Pow. on Lev. 602 ; 8 Coke, 156; Styles Bep. 293; 2 Ves. 231, 216; 2 P. Wil.136, 7; 1 Atk. J¡A1. As to the [684] damages, the fishery was valuable; 40,000 shad been taken there in a season.
    
      Hunter, on the same side.
    If the issue is substantially found, so that the court can render judgment on it, it is sufficient. The issue was, whether the plaintiff has a free fishery or not ? It is found for him. The right of the plaintiff is founded on a free fishery; he denied that the fishery was held as a tenantry in common. The right of fishery is a distinct thing from the right of soil. Joshua and Joseph held as tenants in common with each other, but not as tenants in common Avith Benjamin and Caleb. The custom of the country establishes the practice he contends for. The parties had, by agreement, ascertained their separate rights to fish, haul and haul about. But a denial of right, is a complete ouster. The testimony of Allen was to explain an ambiguity; it is the same as where the devise was to my son John, Avhen the testator had two sons of that name; the evidence given by Allen was in conformity to the truth of the case, as appears by other evidence in the cause.
    
      It. Stockton, in reply.
    One of the issues remains undecided. The jury must find all the issues joined in the cause, or the verdict is imperfect. The finding of the jury must be certain and direct, not argumentative. The case in Barnes Avas the case of a verdict for the defendant, which makes the difference. There has been a mistrial. . If there was an agreement between the plaintiff and defendant, that they should have their hauls by turns, an action on the agreement is the proper remedy; but this is no severance of the common property or possession. The third count is for fishing in his, the plaintiff’s, free fishery, and taking and carrying awray his fish. On that [*] count no evidence has been given. If the jury render a verdict for the plaintiff on a count on AA'hich no evidence has been given, a new trial must be had.
    The testimony of Allen Avas inadmissible; no case can be found where the person who wrote the will, has been permitted to prove the intentions of the testator. Besides, it goes to contradict the will. The will gives away two fisheries, and the witness is brought to prove that the testator intended to give away one only. It is going farther than any adjudged • case has gone, and would be substituting the scrivener in place of the testator. If the third count is out of the case, as it ought to be, then there is $560 for cutting a rope. But even if the third count is to be considered, yet it would not justify the damages. It is not a subject of vindictive [685] damages; the transaction is growing out of a controversy about the title.
    At this term the following opinions were given:—
   Kirkpatrick, C. J.

I am of opinion that there ought to be a new trial, on the ground of inadmissibility of the testimony of Allen. It is going farther than the authorities will justify, and is against law and reason; and would lead to the most dangerous consequences if adopted as a rule.

Being satisfied on this point, it is unnecessary for me to say anything further.

Pennington, J.

As to the first objection to the verdict, it appears to me to stand thus: The defendant, in his pleas, puts his defense on two grounds. First, that he was not guilty of the trespass. Second, that the locus in quo was his several fishery; either of which was sufficient. The jury have given no answer to one of these points of defense, to wit, the second, unless by finding the defendant guilty of fishing in the free fishery of the plaintiff. This at most is only by way of argument and inference; that is, it being the free fishery of the plaintiff, it cannot, therefore, be the several fishery of the defendant. This is not sufficient. The finding should have been directly on [*] the issue. If I am right in this there has been a mistrial; and there must be a venire de novo. But lest this should not be thought satisfactory, I will examine this case farther; in doing which, I will consider the first objection out of the case. The jury-have found the defendant guilty on two counts, to wit, the 3d and 7th. The one for fishing in the free fishery of the plaintiff, and fish there found taking and carrying away; the other for cutting and spoiling a certain net line of the plaintiff, and having assessed entire damages. Both these counts must be supported, or the plaintiff has got damages for injuries he never suffered. In oi’der to apply the evidence to the third count, we must examine what is meant in legal contemplation by a free fishery. Sir William Blackstone says, that a free fishery is an exclusive right to fish in a public river; that it is a royal franchise derived by royal grant; and as these grants were prohibited by the great charter, the grant must be previous to that charter. 2 Cam. 39. 40, 419; Jacob’s L. D. Fishing. But Lord Coke, 1 Inst. 22, considers a free fishery the same as a common fishery; and Eyre, J., 2 Salic. 537 is made to say, that libera ex vi termini, did imply common, which Holt, C. J. and Holbin, J. denied. Mr. Hargrave in his note on the above pa.ssage in the institutes, has not solved the question. I am inclined to think that Justice Blackstone is right; but take it which way we will, it is against the plaintiff. If Mr. Justice Blackstone is correct, a free fishery [686] cannot exist in this country; the crown being restrained from making such grants long before the discovery of America. But even if this was not the case, yet no evidence was given of such grant, or even a prescription, which presupposes a grant. If Sir Edward Coke’s interpretation is to prevail, a free fishery is a common fishery; that is, common to all the citizens of the State; and if so, the plaintiff had no right to the fish before they were caught; and the jury having assessed damages for taking the fish, as well as for cutting the line, have done wrong.

[*] I am disposed, however, to take broader ground, lest I may be iinderstood as acquiescing in an authority assumed by certain persons, of appropriating to their exclusive use the privilege of taking fish in certain portions of this important river. There has not been proof made, which under any form of pleading, would vest in Yard a right to those fish before they were taken. The river Delaware below the falls, is a large public river, a branch of the sea, in every part of which the tide ebbs and flows; prima facie all the people of the State have liberty of, fishing in it. The presumptive ' right to fish in this river, being in the people of the State, it must be considered as remaining in them, until some person has gained an exclusive right, derogating from this common right, and shutting it out. That great lawyer and excellent man, Sir Matthew Hale, lays it down as a maxim, that the common people of England, have regularly a liberty to fish in the sea, and the creeks and arms thereof, as a public common of fishery, and that they may not, without injury to their rights, be restrained of it. He admits, however, 'that a subject may have gained a property exclusive of that common liberty. Harg. Law Tracts, 11. In this case, the plaintiff has given some evidence of an undivided title, in common with others, derived from Caleb Carman. But- he has not attempted to show a right in Caleb Carman, or that he ever had any. The presumption of law is against this exclusive claim, and therefore, the onus was on the plaintiff. 1 Mod. 105. No doubt but that both the plaintiff and defendant will admit the right of Caleb Carman, as they both pretend to derive title from him. But I am not satisfied that two litigant parties are to be indulged in admitting rights, incompatible with the rights of the people, and thereby endangering the rights of every member of the community. In all cases, I think it is the duty of the court to inquire proof of the existence of such exclusive right before it will suffer a recovery founded on it. [687] It is a title set up against the liberties and privileges of the peóple. The exercise of [*] this exclusive right-of fishing in the arms of the sea and great rivers, was thought by our English ancestors, a restraint on their natural rights, as odious and more injurious than the game laws. In every point of view that this case has presented itself to my mind, the verdict cannot be sustained.

The view I have taken of the case, precluded the necessity of giving an opinion as to the admission of the testimony of Allen. Eor, let that be as it may, I think that the verdict cannot be supported, and that a new trial ought to be had.

Rossell, J.

Was satisfied that a new trial be had.

Rule for a new trial made absolute.

Distinguished in Gough v. Bell, 3 Zab 444, 464. See Den v. Vancleve, 3 South. 589. Cited in Den, Johnson v. Morris, 3 Halst 213; Leigh v. Savidge Exs. 1 McC. 124.  