
    The Inhabitants of Watertown versus Daniel Draper.
    A seine having one end of it attached to a boat which is made fast to a stake on one side of Charles river, and having at the other end a rope, which is passed round a stake on the other side of the river, and is held by men and drawn or slackened at pleasure, is a placed or set seine, within the meaning of St. 1818, c. 309, § 1.
    A declaration, alleging such seine to have been set <e in and across ” the river, is not a variance from the statute above mentioned, which prohibits setting a seine 66 in or across”; and evidence that it was only set in the river will support the declara tian.
    This was an action to recover the penalty of 50 dollars for each of seven violations of St. 1818, c. 109, § 1, which provides, that if any person shall “ place or set any seine or net, or set up, erect, or place any obstruction or incumbrance whatsoever (mill dams excepted) in or across Charles river, whereby the free passing of the fish' up and down said river shall be straitened, obstructed, or stopped,” he shall forfeit, &c.
    It was proved that the defendant’s seine was put into the river in the following manner. With a long rope at one end of it a half turn was taken round a stake on the Brighton shore, the fishermen holding on by the rope and letting it pass through their hands till it came to the end. The other end of the seine was attached to a jack staff, which lay across a boat and was prevented from slipping over the stern by the boards of the quarter deck rising above the sides of the boat. The painter was made fast to a stake on the Watertown side, and the bow of the boat was hauled close to that shore, which is very bold. The seine moved up and down the river as the current swayed it, or as the rope on the Brighton side was drawn or slackened round the stake. The fishing in this manner continued sometimes ten minutes, once about forty, and once about an hour.
    The defendant contended, that this was not placing or setting a seine, but drawing a seine ; and an experienced fisherman testified, that a set seine is one which is fixed for the time being, so that it cannot move at the ends where it is fastened ; but that where the end moves in the manner above described, the seine is considered among fishermen as a drawing seine.
    The defendant also contended, that this seine was not drawn in and across the river, as alleged in the declaration, because it extended only to the boat, and there was a space of from three to twelve feet between the end of the seine, where the leads fell upon the bottom, and the shore on the Watertown side, where the water was two or three feet deep.
    The jury were instructed, that the seine was not set, within the meaning of the statute, unless made fast for some time at each end, and that it was not extended across the river, as there was a space between one end, where it was fastened to the boat, and the shore ; and a verdict was found for the defendant.
    
      
      Oct. 11th, 1825.
    
      Oct. 17th, 1825.
    
      Dana and Thaxter, for the plaintiffs,
    to show the intention of the legislature in St. 1818, c. 109, referred to St. 1815, c. 56 ; St. 1814, c. 162 ; St. 1813, c. 183 ; St. 1797, c. 75 ; and St. 1806, c. 65.
    
      S. D. Parker, contra,
    for the same purpose, referred to Prov. St. 8 Ann. c, 3, cited in Commonwealth v. Ruggles, 10 Mass. R. 391. He observed that the declaration, which alleged that the seine was set “ in and across ” the river, did not pursue the statute, and was not supported by evidence that the seine was set only in the river.
   Per Curiam.

A new trial is granted, because the facts reported show, in the opinion of the Court, the offence described in the statute on which the action is brought. The offence is, the placing or setting of a seine in or across the river. The case shows that the seine was so set. It was fixed on the Watertown side by means of the boat, which was fastened to a stake, and on the Brighton side by the rope cast round a stake and held by men’s hands. The purpose was to keep it fixed, in aid of the defendant’s drawing seine which swept down the river from above. The length of time during which it remained fixed is immaterial, all placing or setting of seines in Charles river being unlawful. Nor is it material that it did not extend quite across the river, for it was placed in, if not across, and a total obstruction is not contemplated by the statute.

There is no variance between the statute and the declaration. An allegation that the seine was placed in and across, embraces both alternatives in the statute, and to prove either ss sufficient.

New trial granted.  