
    Commonwealth versus Abijah Ruggles.
    The provincial act of 8 Anne, c. 3, for preventing obstructions to the passage ot fish in rivers, is still in force.
    But the setting of a seine or net in a river is not within the act; which implies something permanently erected and remaining for some time, and which may be a subject of removal by the sheriff.
    The special remedy given by the act is cumulative, and does not take away an indictment as for a nuisance.
    The defendant was indicted, for that “ on the 10th day of May, 1811, and on divers other days, &c., with force and- arms, at Brighton, &c., in and across the channel of Charles River, he did set, make, and erect, a certain disturbance and encumbrance, commonly called a seine, or net, thereby stopping, obstructing, and straitening, the natural and usual course of the fish in said river, in their seasons, up and down the same, without the allowance and approbation of the Court of General Sessions in said county, or any other legal authority first had and obtained by said Ruggles, against the peace, &c., and the form of the statute in such case made and provided.
    
      The indictment was found at the Circuit Court of Common Pleas, holden in this county December, 1811. The defendant, being convicted in that court, appealed to this Court, and here moved in arrest of judgment, on the ground that the indictment describes no offence against any statute in force in the commonwealth, nor any indictable offence whatever.
    
      The Solicitor-General stated that the indictment was founded on the provincial act of 8 Anne, c. 3,  which prohibits the setting, erecting, or making, of any wears, hedges, fish-garths, stakes, kiddles, or other disturbance or encumbrance, on or across any river, to the stopping, &c., as in the indictment, without the.approbation of the Sessions, &c., who are authorized to license the same. And [ * 392 ] all such wears, &c., * are declared to be a common nuisance, and shall be demolished and pulled down, not to be again repaired or amended, .on complaint to the Sessions, or any two justices of the peace quorum unus; and, on conviction, a writ is to be granted to the sheriff or constable, to remove the same; provided the act shall not extend to mill-dams, &c. And the Solicitor-General contended that, under the words “ other disturbance or encumbrance,” seines were included.
    
      Ward and Fay, for the defendant.
    The statute cited refers wholly to permanent encumbrances, and has never been understood to intend nets or seines which are transient instruments, and to which the provisions of the act can in no sense apply. But whether the offence described in the indictment be within the purview of the act or not, the act itself has become obsolete and void by nonuser. There is no instance of its being enforced for more than seventy years. It is not therefore among the laws “ usually practised on in the courts of law,” at the formation of our state constitution, and so not continued in force by that instrument. Further, if the act relied on were now in force, and the use of a seine prohibited by it, yet where a statute creates a new offence, and appoints a particular process for its prevention or punishment, it will not maintain an indictment. 
    
    
      The Solicitor-General, in reply.
    This is a remedial act, and the Court will incline to give it effect, if it can be done. Although seines are not mentioned, yet, if they are within the mischief, they are within the remedy. A seine may obstruct the passage of the fish equally with a dam across the river. The constitutional provision for continuing laws in force relates wholly to the common law, and to Fkglish statutes which had been adopted in practice here. Our colonial acts continued in operation by their own au thority. But, if otherwise, this act has been sufficiently practised upon to bring it within the provision.
    The statute plainly contemplates a conviction of the offender before the Sessions, and a consequent removal of the nuisance. Such conviction must regularly be by a jury upon trial of an indictment.
    
      
      
        2 Mass. Stat. App. 992
    
    
      
       3 Bae. Abr.) Indictmentt E
    
   * Sewall, J.,

delivered the opinion of the Court. [ * 393 ]

The charge against the defendant in this indictment is of facts which do not, at common law, import a crime or punishable offence. But an ancient provincial statute prohibits the setting, erecting, or making, on or across any river any wears or other disturbances or encumbrance, &c., unless by a license, to be obtained as in the statute is directed; and enacts and declares that all wears, &c., or other encumbrance, which shall be set up or made on or across any river, to the straitening or obstructing of the fish, &c., without the license specified, shall be a common nuisance, to be demolished and pulled down, not to be again repaired or amended; and authorizes as well the Court of General Sessions as two justices, to remove the nuisance after proper proceedings.

The defendant having been convicted, the only doubt in our minds is, whether the obstruction described is of a nature to be within the provisions of this act. To obstruct the fish in their natural course by a seine or net, set, made, and erected, in and across a river, seems to be possibly descriptive of every act of fishing with those implements. And there are no words in the indictment which distinguish this case as the permanent erection of a seine or net, to be found when the sheriff repairs to the river to remove the nuisance, which seems to be the only remedy provided by the statute.

As to the jurisdiction, we have no doubt of that, supposing the case to be within the prohibition of the statute; for, it being declared by that to be a common nuisance, the statute attaches to it all the remedies which the common law provides in that case. The special remedy by the statute is cumulative.

Nor is this statute to be regarded as repealed or obsolete; but the offence is not sufficiently described in the indictment until some words are added to it, so as to be within the provisions of the statute, which evidently applies to some thing permanently erected and remaining for some time, which may be a subject of removal —• not a net or seine, thrown in and withdrawn at pleasure,

Judgment arrested. 
      
      
         [Vide Inhabitants of Wate-town vs. Draper, 4 Mass Rep. 165. — Ed ]
     