Daniel Atwood versus Andrew Caswell, 19 Pick. 493

Wilde J. delivered the opinion of the Court. The defendant moves in arrest of judgment as to the second and third counts, on the ground that it is not alleged in either of them, that the defendant committed the acts complained of with the "ntention or for the purpose of taking the fish mentioned in the declaration, without or beyond the distance of one hundred rods from the dam near King’s bridge, so called.

In each count it is alleged, that the defendant did set and make obstructions to the passage of the fish within one hundred rods of the dam, whereby the fish were driven more than one hundred rods below the dam, and that the defendant did, on the day mentioned in the declaration, fish, with the intention to catch and destroy the fish so driven back by means of such obstructions. But there is no direct averment that the defendant made the obstructions for that purpose, and unless they were so made, there has been no violation of the statute.

The intent with which the obstructions were made, is the essence of the offence, and must be directly alleged, and not by way of argument or inference. As to the first count, it is objected, that the repairing of the wear by the defendant was not the setting of a wear, within the true meaning of the statute. It was proved, that the defendant repaired the wear by placing bricks, bushes and stakes thereon; which we think is clearly against the true meaning of the words of the statute. Judgment for the plaintiff on the first count.