grant of 1613; and amongst the rest the river Bann, from the sea to Loughneagh, and the rock or Salmon Leap, and the whole fishing and taking of fishes, as well salmon and eels as all other kind of fishes whatever within the said river and Salmon Leap, as well with nets of what kind soever, as otherwise howsoever, excepting only thereout the piscary belonging to the bishop of Derry, found by inquisition bearing date the 30th of August 1609. These letters were enrolled in the proper offices, both in England and Ireland; but it appears to me that the Society and their successors rather considered them as a confirmation of the former grant than as a new grant, and I think I am fortified in this opinion by the following circumstances: The then bishop of Derry having claimed several parts of the fishery, and having brought ejectments for the recovery of them in the year 1670, the Society took defence thereto and nonsuited the said bishop, founding their title solely upon the patent of 1613; the Society apprehending further trouble from the bishops of Derry, afterwards, on the 22d of April, 1684, filed a bill for perpetuating the testimony of their witnesses, in which bill they made title under the charter of 1613 as the original foundation, and charge the grant by Charles the Second to have been in confirmation of it.

By this bill they claimed all the fishery from the sea to the Lough; although,as I have already observed, it does not appear that they ever possessed more than from the sea to the rock or Salmon Leap inclusive.

Witnesses were examined in this cause, and a compromise was afterwards made between the Society and Dr. King, then bishop of Derry, whereby a yearly sum was agreed to be paid by the Society to the bishop and his successors, and the agreement was afterwards ratified by act of parliament.

Thus stands the title of the Society, brought down to the latest period that any grant appears to have been made to or to have been accepted of by them from the crown: and I shall now proceed to state the title under which the Marquis of Donegal claims the right of fishing in Loughneagh, and the part of the river Bann which lies between it and the rock; but it is right to premise, that in doing so some little inconsistency will appear, that part of the river that lies between the rock and the Lough having been granted both to the Society and the Donegal family at many different periods, several of them not very remote from each other.

On the 20th of November, 1621, a grant was made by patent to sir Arthur lord Chichester, ancestor of the marquis of Donegal, of Loughneagh, the soil and fishing thereof, the eel weirs and eel fishings about Toome, and in the river Bann, as far as the rock called the Salmon Leap.

On the 1st of July, 1640, Edward viscount Chichester, the descendant of Arthur, and Arthur the son of Edward, surren dered the premises comprised in the patent of the 20th of November, 1621, to King Charles the First, in pursuance of an or

der of composition made on the 19th of September 1639, between them and the commissioners for the remedy of defective titles; and it was then agreed that his lordship and son should have a sufficient estate granted to them of all the premises granted by a former order of composition, bearing date the 7th of December 1638, and a patent accordingly passed on the 22d of September 1640, granting to them all the estates, except the Lough and river so surrendered, which were specifically excluded and left out of the said last-mentioned grant.

On the 14th of August 1656, a lease was made of said surrendered premises, by Oliver Cromwell to sir Arthur John Clotworthy, knight, afterwards viscount Massareen, for ninetynine years, from the 13th of May 1656, at a small rent.

This lease comprised the Lough and Toome, with the fishings and soil thereof, the islands and the river Bann, as far as the Salmon Leap.

On the 15th of November 1660, King Charles the Second confirmed the lease to the Massareen family.

On the 3d of July 1661, the same king, by letters patent under the great seal of Ireland, granted and confirmed to Arthur Chichester, then earl Donegal, and his heirs, all the fishings in Loughneagh and the river Bann, from the Lough the rock or fall called the Salmon Leap, to hold the same as they had been granted by King James the First, on the 20th of November 1621; and also the rents reserved upon any lease or leases, the premises comprised therein to go to the said earl of Donegal and his heirs; and under this grant it is, that the Donegal family have since enjoyed, and still continue to enjoy, the premises comprised therein; and amongst the rest the lake and river, from the lake to the rock or Salmon Leap.

Having now gone entirely through the matter of title, I next come to that which has given cause to so long and expensive litigation; but before I enter upon it, I beg shortly to observe a little upon salmon- and eel-fisheries generally. The time for taking salmon as regulated by law, and that in which they are in best season and fittest for use, is immediately on their leaving the sea, and making their way into the fresh-water rivers, for the purpose, as is generally supposed, of depositing their spawn.

The spawn is generally lodged in shallow streams, or creeks in small rivers, in the harvest season; is lightly covered with gravel by the mother-fish, as they are called, and continue there until the months of March, April and May following, when it vivifies sooner or later according to the heat or coolness of the season, and to the quantity of covering that may have been upon it, and which is frequently increased or diminished by the winter floods. And almost as soon as they are able to swim, the young brood begin to make their way to the sea; where their growth is so wonderfully rapid, that although when they pass to the sea they may not weigh more than one or two ounces, they are found to return in July and August into the fresh water, grown to the enormous weight of from four to ten pounds; and

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it is equally remarkable of this species of fish, that it always endeavours to return into the same river it was spawned in, which facts of growth and propensity to return to their native rivers, are ascertained beyond doubt by a practice that I have frequently assisted in, of taking up the fry on its passage to the sea, in different rivers, remote from each other, weighing and marking them by the introduction of threads of silk into the fins, cutting the fins in different ways and the like, and entering down the respective weights and particular marks of each in a book made for the purpose, and afterwards catching and weighing them on their return, and no instance was ever found of the fry taken up and marked in one river being caught in another.

The eel tribe perform their functions in the very contrary way, and their history is not so perfectly well understood.

They spawn in the sea; and the fry, when not more than from an eighth to one fourth of an inch long, nor thicker than the hair of a horse's mane, make their way into the fresh waters in the summer months, and return to the sea full grown the following year, from whence it is conceived they never come back.

Salmon are uniformly taken in their passage from the sea to the fresh water, and eels on their passage from the fresh water to the sea and of course wherever there are two salmon-fisheries on the same river, that next the sea must have the benefit of precaption, and vice versa with respect to eel-fisheries.

To resume, or rather proceed, in the matter of controversy, it appears to me, from the best information I have been able to collect, that before the time of the grant to the Society in 1613, those who were entitled to the fishery of the rock, and of the river from the rock to the sea, caught all the salmon they could with nets in a particular part of the river, between the rock and the sea, called the Cranagh, which happened to be best adapted to net fishing; but as fish were then comparatively extremely plentiful (which, with the causes of its diminution, will be more fully explained hereafter), and as many fish escaped the industry of the net-fishers, men were employed to stand upon the rocks at the Salmon Leap, who were called loopers, and they used to catch some fish, especially when the river was not in a favourable state for the net fishing; still the number taken in this way was comparatively small, and it was at best precarious, as may well be conceived, when described to have been performed by watching the fish in the water until they attempted to ascend the rock, and while in the act of leaping, catching or receiving them in a small net fixed to the end of a pole; and so few were skilled and expert in this art, that the expense nearly equalled the gain, fish being then very cheap.

The river at the Salmon Leap is between three and four hundred feet wide; and the rock, which is about four hundred and fifty feet in length, extended in breadth entirely across the river, and rendered it so shallow and rapid, as to preclude all possibility of navigation while it continued in that state; wherefore the Society, shortly after the passing of the patent in 1613, as tradi

tion informs me, made a cut through the rock almost close to the shore on the west or Derry side of the river, for the purpose of conveying timber down the river to build their town of Coleraine; but it is certain that the passage was converted into a trap for the taking of fish, very many years ago, and has been uníformly employed in that way, if not before, at least since the year 1620; and it is material to observe, as bearing very much on the case in controversy between the parties, that it was, and is, constructed of wood, lime and stones, and built in a most per

manent manner.

From the time their rights first accrued, the Society, by their under-tenants, uniformly fished on the rock, and in the river from thence to the sea, with nets and loops in the ways already described, and also used the cut or trap from the time it was converted into an engine for the taking of fish, without molestation, hinderance, or even claim by the Donegal family, or those deriving under them; and in like manner, the Donegal family and their tenants fished without interruption in the lake, and in the river Bann, from the lake to the rock. But it is an important fact, that the sole profit of the Society's fishery consisted in the taking of salmon, and that of the Donegal family principally, if not entirely, in taking eel, as more fully mentioned hereafter; and that the Society's tenants uniformly defrayed all expenses attending the preservation of the salmon spawn and fry in the breeding rivers, as did the tenants of the Donegal family that which attended the preservation of the eel fry on their passage from the sea up the river: that being the only part of the eelfishery that required attention.

The Society from time to time were in the habit of making leases of their fishery; and amongst others, one was made to a gentleman of the name of Williams, who first thought of the practicability of erecting traps upon the rock, instead of incurring the excessive expense of cutting the rock in the manner hereinbefore described with respect to the old cut, as it is called; and he caused a second trap to be erected in this way on the surface in the year 1744; and finding it useful, he erected another in the year 1745.

In the year 1755, a third was added.

In 1756, a fourth.

And the last in 1759 or 1760, by the late sir Henry Hamilton, then tenant to the Society; and no objection whatever was made to the erecting of any of those works at the times they were going forward; nor for eleven years after the erection of the last of them, although the tenants of the Donegal family were eyewitnesses of their progress, being themselves daily employed in fishing in that part of the river that lies immediately above, and adjoining to the rock. And all those works were composed of materials similar to those of which the cut made in or before the year 1620 was constructed, and bear complete resemblance to it in form and mechanism.

At length, however, but not until the year 1771, it occurred

to Arthur, then earl of Donegal, to contest the right of employing the traps I have mentioned, and to make the experiment of an action at law, for the purpose of contesting that right; and he accordingly brought an action in the Court of Exchequer against sir Henry Hamilton, for erecting a certain work on the rock or Salmon Leap, and for the recovery of damages for the injury his fishery was alledged to have suffered in consequence thereof; and he laid his venue in the county of Armagh; but on application to the court, and a statement by affidavit that questions of title were likely to arise that would require the production of various patents, a trial at bar was granted.

In this action he did not complain of any of the cuts, or traps specially, but of the whole, as if they had been of a single compact work, and had formed one general obstruction to the passage of fish across the entire course of the stream; and he claimed to be seized in fee of the soil of a free passage over the rock; although the whole soil thereof, as already mentioned, had been granted and belonged to the Society, and possession had followed the grant from the year 1613 (or at least from 1662) uniformly down to the present time.

A trial of this action was had at the bar of the Court of Exchequer in the year 1771, and a very long special verdict was found, embracing an immense variety of matter, which was set down for argument in the Court of Exchequer.

In this stage of the business, when the cause was in the courtlist for argument on the special verdict, I entered upon my apprenticeship with the late Messrs. Kane and King, who were then, and had been for above half a century before the law-agents of the Society; and as I chanced to have been born within less than a mile of the river Bann, about half way between the Lough and the sea, and had a tolerably good notion of the nature of the fisheries, my attention was more particularly directed to the subject in dispute than it might otherwise have been ; and from thence until now the case has had my best consideration, especially for the last twenty years, during which time, or rather, as much of it as he lived, I was in partnership with Mr. King, who survived Mr. Kane, and since his death I have had the honour of being myself concerned for the Society in the defence of the cause, and such other general business as they have had in Ireland.

The special verdict having continued in the list for a considerable time, was found by those concerned for the plaintiff, to be so confused and informal, as to be utterly untenable; and being at last called on, immediately on opening the cause, the counsel for the plaintiff admitted its insufficiency, and the first of its many imperfections was decisive; namely, that it did not find that the plaintiff in the action was the heir at law of the original grantee, and the court was pleased to order a venire facias de novo to issue; but lord Donegal, or those concerned for him, did not think fit to issue the venire, nor was any other step ever taken by them afterwards, either to revive or proceed in that cause, or to commence a new one, during the remainder of the life of sir Henry Hamilton;