distress may enure as a satisfaction, or may constitute an injury: if the former, then the Defendant ought to have pleaded those circumstances, which would make it operate as a satisfaction; for it is incomplete as satisfaction by the mere act of seizure." And so it is incomplete here. Bayley J. says, "it was the duty of the Defendant to set out the whole of his case;" and so it was here: he might have stated the whole of his case in the plea: the words "neglected and omitted," are not sufficient; if the distress had operated as a satisfaction, it ought to have been so stated. I should have entertained no doubt on the subject, even if no case had been before decided. PARK J. I see nothing in the Plaintiff's argument to induce the Court to think that the two former decisions are wrong. Much stress has been laid on the supposed inconvenience to tenants, but the inconvenience is all the other way, and if the landlord must proceed to sell, the Plaintiff should have shewn that he was satisfied; for there are many cases supposable, in which the distress may be no satisfaction to the landlord, as where he withdraws it, relying on the tenant's word. I do not agree that shall and may in a statute are always imperative; they must be deemed imperative or not, according to the subject matter. The statute of William and Mary is a remedial law, and it was never meant, that the landlord must necessarily sell, because he has the power to do so. It certainly is not allowable for a landlord to split his rent, and purposely take two distresses, but Lord Mansfield says, it is convenient he should come a second time, if the first distress is not sufficient, otherwise he might be tempted to secure himself by taking an exorbitant distress in the first instance. I think, therefore, that the present plea is not sufficient. BUR 1821. HUDD V. RAVENOR. 1821. HUDD ข. BURROUGH J. We must over-rule the two preceding decisions, if we say that this plea is sufficient. But it contains no averment on which issue can be RAVENOR. taken, though it might easily have done so as if it had said, that the Defendant wrongfully destroyed the distress. It rests therefore, on the same ground as the former cases, which in my judgment were well decided, and the present plea is bad for want of shewing that the rent was satisfied. RICHARDSON J. I think the plea insufficient. For any thing that appears, the former distress may have been relinquished in kindness to the tenant, and I do not think any issue could have been taken on the words neglected and omitted. I am not satisfied that the statute of W. & M. is imperative as to a sale, though it is not necessary to pronounce an opinion on that point; but supposing it is so, that statute never meant to preclude parties from ending the proceeding by an agreement. The principle of the former cases is the same as the present, and there must be Judgment for the Cognizor. 1821. GRAY and Another v. BOND and Another. May 28. Where the lessees of a fishery had THIS was an action on the case, for disturbing the Plaintiffs in the enjoyment of their right of drawing nets to land, on the banks of the river Derwent, wherein publickly they had a fishery. The Defendants pleaded the general landed their issue, and at the trial before Bayley J., at the York shore at A. Spring assizes, 1820, a verdict was found for the Plaintiffs, subject to the opinion of the Court, upon the following case. nets on the for more than 20 years, and had, at various times, dressed and improved the landing person, but no evidence being offered to shew that he, or those who under him owned the The river Derwent is a public navigable river in the county of York, the tide whereof flows to a point place (both higher up the river than the place mentioned in the the fishery and declaration called the Crabtree Fellings. This river This river the landing place having forms the boundary of the manor of Elvington, which originally beextends to the line of the stream, and the lord of longed to one that manor, from time immemorial, hath been seised of a fishery in the river on the Elvington side of the river, to the line of the stream thereof, and extending throughout the length of the manor which he claims, as appurtenant to the manor. Before, and at the time of the execution of the lease and release hereinafter mentioned, Richard Sterne was seised in his demesne as of fee of the manor of Elvington, and of the lands conveyed by the deed, as well as other lands within the manor, and adjacent to the river Derwent, and being so scised, by indenture of lease and release, to presume a dated the 3d and 4th October, 1774, he conveyed to grant of the Ralph and John Dodsworth (among other things) the right of landing to the lesclose of land upon which the felling called the Crabtree sees of the felling is situated. The Plaintiffs are possessed for a fishery, by term of years of the legal estate of and in the manor and fishery; and, at the time of the grievance com- shore at A. shore at A., knew of the landing nets by the lessees of the fishery): Held, that it was properly left to the jury some former owner of the VOL. II. 3 A plained 1821. GRAY ข. BOND. plained of in the declaration, were in possession of the fishery. It was proved at the trial, that the owners of the fishery and their lessees, had, for above twenty years last past, and in the recollection of one witness, at the distance of 64 years ago, for the more convenient use and enjoyment of their said fishery, drawn and pulled their nets to and upon the bank of the river, at certain different parts thereof, on the Elvington side of the river, for the purpose of taking the fish out of the nets, and that they had occasionally dressed the landing places, by sloping the foreshore, and levelling the ground with a spade. These landing places are called pulls or fellings, and are thirteen in number, within the manor of Elvington. The other fellings are situate upon different closes, which, before the time of the said conveyance, were and still are the property of the lord of the manor of Elvington; but the felling in question, called the Crabtree felling, is situate upon one of the closes which were conveyed to Ralph and John Dodsworth, by the before-mentioned deeds of lease and release, under whom Mr. Preston, the present proprietor of the closes, now claims and is seised of the same. There was no evidence either way, whether Ralph or John Dodsworth, or any person under whom Mr. Preston claims, or Mr. Preston himself had any knowledge of or was privy to the said use of the Crabtree felling. The Defendants, as the servants of Mr. Preston, and by his direction, before the commencement of this action, placed stakes in and upon the Crabtree felling, so as thereby to prevent the Plaintiffs from pulling their nets to land, and using the said felling so conveniently as before. It was objected by the Defendants at the trial, that, as the land upon which this felling was situated, had been conveyed by the owner of the fishery to the Dodsworths in 1774, without any reservation or any exception of of the right of landing nets upon the said felling, such right was entirely gone. The learned Judge left it to the jury to presume, from the evidence of enjoyment, a grant of the right to land nets upon the Crabtree felling, to the owners of the said fishery, by some former owner of the close whereupon it was situated, since the year 1774; and the jury thereupon found a verdict for the Plaintiffs, damages ls. The question for the opinion of the Court was, whether the direction of the learned Judge was right. If the learned Judge ought to have directed the jury to presume such grant, then the said verdict was to stand; but if not, then a nonsuit was to be entered. The case was argued on a former day in this term. Bosanquet Serjt., for the Plaintiffs, contended, that it was properly left to the jury to presume, from the evidence of enjoyment, a grant of the right to land nets upon the locus in quo, and cited Campbell v. Wilson (a), Yard v. Ford (b), Keymer v. Summers. (c) Hullock Serjt., for the Defendants. The cases cited for the Plaintiffs do not apply., Mere lapse of time will not of itself raise against the owner the presumption of a grant. In Campbell v. Wilson there was a notorious user for twenty years exercised adversely. And so, in all the cases collected by Serjeant Williams in Yard v. Ford, particularly Darwin v. Upton, the grounds for such a presumption were infinitely greater than in the present case. One of the general grounds of a presumption, is the existence of a state of things which may reasonably be accounted for, by supposing 1821. GRAY V. BOND. |