milton, by lord Donegal, requiring her forthwith to abate and remove four of the cuts; to wit, those called Williams's, Alexander's, Murphy's and Moffet's Cuts, on or before the first day of July then next; and that in case of refusal, further proceedings at law or in equity would be taken for removing them, and for obtaining full redress and satisfaction.

On receiving this notice, a copy thereof, with a statement of the case, as it then stood, was laid before sir John Stewart, afterwards Attorney-General, Mr. Plunkett, now Solicitor-General of Ireland, both retained as counsel for the Society, Mr. serjeant Duquery, and others most eminent of the counsel formerly employed, for their advice and opinion; and they desired that no answer should be given to the notice, and gave an opinion that as the law then stood, there was quite sufficient to defend and protect the Society and their tenants against any new attack that might be made.

On the 12th of September 1795, lord Donegal filed a bill in the equity side of the Court of Exchequer against lady Hamilton only, in which he stated the titles of the parties, pretty much in the same way they are hereinmentioned, the judgment at law and the notice to remove the cuts, and he prayed that four of the cuts only might be demolished.

On the 29th day of February 1796, lady Hamilton put in an answer to the said bill, and I risk nothing in saying, that a fairer or fuller answer never was given in to a court of justice.

In this answer, amongst other things, she says, that no fish were obstructed from coming into the plaintiff's fishery, but those that were taken by her in engines known to and recognized by the law of the land, one of which had stood since the year 1620, and that all the rest, constructed of similar materials, were made before the year 1760;

That plaintiff made considerably more by his fishing now then he had before the erection of the four cuts complained of;

That she did no more than she had a right to do, in taking in the cheapest manner the greatest quantity she could in her own fishery, that the traps were not prohibited by law, and that the fish were taken by legal means;

That plaintiff's fishery was of great value, and the most valuable part consisted in the taking of eels in their passage towards the sea; that her's was a salmon-fishery, and the salmon taken in their pasage from the sea;

That plaintiff, by late improvements in weirs and other engines, had stopped more eels from coming down the river than were accustomed to come, and thereby rendered his profit more considerable, and her's less;

That she had done the like, and that by additional dilligence and increased expense, as many salmon could be taken with nets and other engines as were taken by the traps; that each party had taken the natural advantage of their respective situations with respect to the species of fish that must pass through their fisheries; that she expended considerable sums merely for the protection of the salmon; and that plaintiff did the like in protect

ing the eel, each taking care of that from which their profit was principally derived; and that at all times plaintiff's fishery was principally considered an eel- and her's a salmon-fishery ;

That the decrease of salmon in plaintiff's fishery was in a great measure owing to the increase of the machinery for carrying on the linen-manufacture;

"That the decision in 1792 was in part influenced by a finding, that by the continuing the traps the current was so increased as to prevent as many fish as formerly used to pass; and that the declaration not being pointed to any such mode of obstruction, she was not prepared, nor could she be called upon, or expected, to produce evidence relative thereto, which she otherwise would have been easily able to have done;

That plaintiff himself varied his case in his different declarations; that it could not be said, that the only judgment plaintiff had, was founded upon such clear grounds as to close for ever all questions between the parties; that by his declaration in 1771, he only complained of one cut, erected in 1762, which probably was the last erected cut, and thereby acquiesced in the other three; and that it did not, and could not appear, if one cut was removed, whether the jury would have considered the rapidity of the stream to have been so increased by the remaining three, as to warrant them in finding, even upon the ex parte evidence already mentioned, that fish were stopped;

That plaintiff was not warranted to come into a court of equity to procure an order to prostrate the four cuts for catching fish, having remedy, if any, at common law ;

That so far from the cuts being an illegal mode of fishing, the twelve judges had said they were not; and if her right to maintain them should ever again be questioned, she was advised that she could show that the law was clearly with her;

That in other parts of the river, the rapidity of the stream had ever been much greater than where the traps were erected; that they opposed little or no obstruction; the parts which crossed the river being constructed of thin and slender rails of wood; whereas on the verdict they appeared as solid obstructions, and were so erroneously supposed to be by the jury; that no fish were obstructed but what were taken, and the only loss to plaintiff arose from her diligence; and that he, by the very same means he complained of, greatly increased his own fishery; that the first cut, built of the same materials with those complained of, was used as a mode of fishing before any of the grants the plaintiff claimed under, so that at the time of the grants, fishing by traps was a known and practised mode of fishing; and that on the rock there were free passages, amounting in all to one hundred and thirty feet;

That by the common law she had a right to fish with traps constructed as the four complained of were, and that the statutelaw acted as a confirmation of that right, requiring only a passage of twenty-one feet, even in navigable rivers, where traps

so constructed were erected; and that by the express grant, under which the London Society derived title, she, as their lessee, was entitled to fish upon the rock, and from thence to the sea, by all means in her power, and of course by means of such traps as were used before and at the time of the grant.

She disclaimed all intention of harassing plaintiff by a variety of suits, or of availing herself of the circumstance charged in the bill of the fishery claimed by plaintiff lying in five different counties; and she offered to leave plaintiff at full liberty to conduct himself in ascertaining his rights as if the whole fishery lay in a single county, her sincere desire being to have the question brought to a solemn and deliberate decision, and that she was ready to have the matters in controversy settled by the trial of an issue to be directed by the court; and she relied on the justice of the court, that in a case, new and complicated, her rights might not be concluded by a single verdict in a species of action, where, as the declaration was framed, the judgment of the court could not ascertain the limits of right between the parties with a satisfactory precision; and the more especially, as the plaintiff had put on record, by his last declaration, a case differing materially from the one he attempted by his declaration in the year 1771. In this equity cause issue was joined, commissions issued, and a great variety of witnesses were examined by both parties in different parts of the kingdom; and I had the satisfaction of fully proving in the clearest manner, by numerous and respectable witnesses, every particular of the honest case that had been put on record by her ladyship's

answer.

Amongst a great variety of other matter, I proved, and in many instances corroborated, by the cross-examination of the plaintiff's own witnesses, that the plaintiff's fishery was always considered by the whole country as being an eel- and the defendant's a salmon-fishery, and that the plaintiff's was by much the more valuable and productive; that he had no less than twenty-eight weirs for the taking of eels on different parts of the river between the lake and the rock, in one of which only, and not the best, but with respect to which I was best able to pro cure proof, the enormous quantity of eighty thousand eels were caught in one single night, and which were worth 5l. a thousand; that besides covering the river completely in three different places from side to side with these eel traps, the plaintiff himself, during the very tendency of his first action of 1771, which complained of the illegality of the works on the rock, but which afterwards fell to the ground, as before mentioned, erected a work entirely across the river at Movanagher, a few miles above the Salmon Leap, constructed of the very same materials of these complained of, for the taking of salmon, as will appear by reference to maps of these works now in the Society's pos session in London, and worth their turning to; that more fish could be taken by the tenants of the Society with nets than by

the traps, but at greater expence; that none were ever obstructed except those taken; on the contrary, that they had a free passage up the river;

That fish passed with ease at Ballyshannon and other places (from whence I brought witnesses), where the ascent was twice as great as at Coleraine, and that the true cause of plaintiff's taking fewer fish than formerly, was the rapid increase of the linen-manufacture in the breeding rivers, and the recent improvement in the agriculture of the country (the former, to wit), the linen-manufacture having multiplied to such a degree, that there were forty mills for every one there had been forty years ago, every one of which produced an obstruction to the passage of the mother-fish up the breeding rivers, and the certain destruction of the fry, which were dashed to pieces on the millwheels and other mechanism, on their endeavouring to get to the sea, and by the steeping of flax in the small rivers, which rendered these waters so noxious as to kill the fry directly; and the latter, agriculture having so opened the drains in the mountain and swampy countries, that after every heavy rain the floods came down in such torrents, and carried with them so much gravel and earth, as to smother the fry, or cover them so deeply that they never could extricate themselves.

I also proved that there were not near the number of fish taken that used to be taken before the erection of the cuts and of the bleaching-mills, and that the plaintiff then took as many in proportion to the number that came into the river as he used to do before the cuts were erected, it having been very common formerly to take forty hundredweight of salmon in one draught of one net, in that part of the river called the Cranagh; but that then it would be a rarity to take one hundredweight at a draught; hat all the cuts are similar in their construction to that which was made in 1620; and that they were all left entirely open from the 12th of August in every year, for the purpose of letting the breeding-fish pass freely up the river, &c. &c. &c.: in fine, there never was a cause that the counsel for the defendant looked upon with more certainty of success, if proofs could be applied to, and in support of the defence set up by the answer; and I am proud to say, there never was a case more completely proved in every point that counsel thought in the slightest degree necessary, as indeed appeared by certificate under their hands, when they advised the appeal hereafter mentioned.

When the examination of witnesses closed on both sides, publication of the depositions of the witnesses, as it is called, passed, and the cause was set down to be heard on pleadings and proofs; and it may well be supposed from the encouragement given me by the counsel, and the fullness and extent of our proofs, that I had formed pretty sanguine hopes of the result; but to our mutual astonishment, when the cause came on to be heard, the court at once decided that they would not go into any case, or hear any evidence, however strong, that might tend to contradict or militate against the verdict at common law, and at once

refused to grant a new trial; although we offered, by counsel at the bar, to take an issue or issues to try whether a single fish was ever obstructed, save those taken, or any other issue or issues the court thought fit to be framed or directed by themselves, and that too at the peril of full costs in case of a verdict against us, and not to seek any costs if the verdict should be found for us; and on the 22d of November 1798, the court decreed "That “an injunction should issue, directed to the sheriffs of Derry, "requiring them to prostrate, demolish, and remove four of the "cuts; and that the defendant, lady Hamilton, should be re"strained from rebuilding them, or any of them; and that the "defendant should pay the plaintiff the costs expended by bim "in the prosecution of the cause; and that the plaintiff might "make up and enroll a decree accordingly against the defendant, "with costs."

Knowing as I did the consequences that would follow to the Society if this decree should be carried into effect, and as it had struck my own judgment so powerfully many years ago, that the Society, as the inheritors and owners of the soil, should not either in law or conscience be bound by decisions to which they were not parties, as to induce me to leave the idea in writing sealed up amongst the papers in the cause, lest any accident should befal me before it was fit to bring it into action: the same thought never having occurred to any one else concerned for the Society, I resolved to prevent or retard the operation of the decree by every possible means; and the inducements for doing so were strengthened by the decree being merely personal against lady Hamilton, then in so bad health, that there was a reasonable prospect of the lease granted to sir Henry, and which depended on her life, soon falling in; and the moment it did so, the entire effect and operation of the decree would fall to the ground, and become perfectly inoperative, being personal against her ladyship, as already mentioned; and the cuts, if not destroyed, would give us the advantage of their being ancient erections, the most modern having been erected. forty-five years ago: whereas, if pulled down in Lady Hamilton's lifetime, the Society might find difficulty in rebuilding them, from the opposition to be expected from lord Donegal's tenants; and even if not opposed, they would still be but recent erections, instead of ancient ones; and I accordingly turned my ideas into a case for counsel, and laid it before the most eminent of the gentlemen then retained in the cause; and they were unanimously of opinion, that the decree of the Court of Exchequer was erroneous and ought to be reversed: that it was a fit subject of appeal, and that they were perfectly willing and ready to sign a petition of appeal for the purpose, and had little doubt that the decree would be reversed in toto: but that in all events it would be, so far as related to granting a new issue, to try whether fish were obstructed in their passage in any way, save by taking, while in the Society's own fishery. The result of which issue, may easily be gathered from what has already been said and proved on that subject; and with