respect to that part of the case which related to the Society's never having been made a party to any suit whatever, either in law or equity, from the beginning, and that it appeared unjust and unlawful to do any act which would so materially affect the inheritance, behind the backs of the inheritors, and without calling upon them in a legal manner to defend themselves, they were clearly, distinctly, and unanimously of opinion, that a bill should be immediately filed in the Court of Chancery, in the name of the Society, stating, that their property was about to be injured by a decision hastily obtained in a cause to which they, as the inheritors, were not even parties, and praying an injunction to restrain lord Donegal from demolishing the works, &c. &c.; and were pleased to add, that the proofs in the exchequer cause had been so carefully collected, and were so full and satisfactory, that they presumed they could easily be made again in the So ciety's cause, if lord Donegal's agent should object to consenting to have these already made read upon the hearing.

Under the sanction of these opinions, I prepared a petition of appeal to the House of Lords of Ireland, in the name of lady Hamilton, praying a reversal of the decree of the Court of Exchequer, or such other order as their lordships might think fit to make, which was afterwards perused and signed by the counsel in the cause, and lodged with the clerk of the parliament, when the cause abated by the death of the plaintiff, lord Donegal; and as delay was with us a most desirable thing, on account of the declining state of health of lady Hamilton, the advantage to result from her death having been already stated, I of course rested and lay by until the cause was revived by his son, the present Marquis.

On the 25th day of November 1799, the present Marquis filed a bill of revivor, praying that all the proceedings had in the life time of his father, should be revived and stand in the same plight and condition they were at the death of his father, and that he might have the full benefit of the former decree, and that it might be carried into execution. As in this interval the decision was very much talked of and frequently quoted as an authority in other cases somewhat similar, and as often denied to be any authority, as not having been yet ultimately decided, I deemed it prudent again to consult not only the gentlemen formerly resorted to, but to take in others of those that had been employed in the cause, to be advised whether any defence could be made against reviving; and they in consultation thought that a bill of revivor was almost matter of course after a decree pronounced, and that no defence could consistently be made in that particular stage of the business; but that after the further decree on the bill of revivor, the directions formerly given should be followed; and that both causes, to wit, the appeal cause, and that directed to be commenced in Chancery, would most probably receive favourable determinations, as they saw no reason for changing the opinions formerly given by them respecting them.

The revived cause was afterwards set down for hearing as of

course, and on the 17th day of July 1800 it was heard, and the former decree ordered to be carried into effect.

Immediately on the pronouncing of this decree, I prepared and lodged a new petition of appeal to the Lords in the new cause of the present Marquis against lady Hamilton, and also prepared and filed a bill in the name of the Society, stating such parts of the matter aforesaid as were thought material; and in addition, thatif the decree in the Court of Exchequer, in which they though the owners of the inheritance were not parties, should be carried into effect in the way it then stood, that others of their cuts and traps never even complained of must be demolished, for that those complained of and those not complained of, were erected on the same party walls, a thing I always prepared to bring forward when occasion required, and praying an injunction to restrain lord Donegal from abating the works until some opportunity should be given to the Society of defending their rights. It turned out a most fortunate circumstance, that I filed this bill and raised the injunction upon it, for want of an answer, as on account of some defect in the Union Act, or for want of some explanation respecting it, the appeals sent from Ireland were not sufficient, and new petitions addressed to the United Parliament were ordered to be prepared; and before that could be completed, the cuts would most inevitably have been pulled down under the Exchequer decree; but I afterwards prepared a new pe tition of appeal to the United Parliament, and it of course operated as a further injunction against the demolition of the works.

Pending this appeal (which as we were in possession and full enjoyment), and for the other reasons already assigned, respecting lady Hamilton's state of health, I did not press to an early hearing; lord Donegal put in what was called a demurrer to the bill, filed in the name of the Society in Chancery, the event of which, if he had succeeded in it, would have been a total end to the suit and all its objects, and after a hearing ofmany days (and the case was argued by nearly twenty lawyers), I had the mortification to see the demurrer allowed by the Master of the Rolls, on the following grounds; that if he should overrule the demurrer, retain the cause, and grant an injunction, it would operate as a contradiction or suspension of the decree of the Court of Exchequer; and that he thought it wrong to set up the orders of one court against those of another court of equal jurisdiction. Discouraging and unexpected as this determination was, I resolved to follow the matter up, from the thorough conviction I felt, that what was then allowed on all hands to be the real merits, had never been fairly discussed in any stage of the business; and accordingly I preferred a petition to the Lord Chancellor, praying that the cause might be reheard by himself, which was granted; and in less than half an hour's hearing, I had the unspeakable satisfaction of obtaining his lordship's decision in our favour, with costs, and that, too, to the thorough conviction, as it should appear, of Lord Donegal's own counsel. The Chancellor having offered to indulge

them in as much time to prepare for a reply as they pleased to ask, for if they thought they could offer any new argument, or could find any authorities of cases where demurrers were ever allowed under such circumstances; which they declined availing themselves of, and admitted that they had already on the cause being set down for re-hearing made every research in their power without effect. It was on the 12th day of November, 1801, that this demurrer was overruled by his lordship; and the injunction I had before obtained until Lord Donegal should answer the allegations in the bill was continued; and from thence until the present time, he never has attempted to give in any answer, nor is there any great probability of his speedily doing so, as when he does he must admit the matter aforesaid, and the necessity he was under of making such admissions if he had answered, was his inducement to put in the demurrer, and thereby preclude all further enquiry into the merits: neither has he paid one shilling of the costs awarded by the Lord Chancellor against him.

Shortly after this demurrer was overruled, the other occurrence which I had looked to as material took place, in the death of Lady Hamilton, on whose demise the lease granted by the Society to Sir Henry Hamilton determined, and thereby the decree of the court of exchequer became totally inoperative, as much as if it never had existed: and as the costs awarded by the decree were like the decree itself, completely personal as against Lady Hamilton, I had the additional satisfaction of saving all these costs by the appeal which suspended the operation of the decree until her death: and when that event took place, the whole fell to the ground, so that at this day I have the comfort, and I hope I may add the credit, of having so wound up the matter, that things stand now as between the Society and Lord Donegal exactly as if there never had been any litigation whatever; with this additional advantage to the Society, that if any new attempt should ever be made by the Donegal family hereafter, the antiquity of the cuts can with every propriety be urged, the latest of them having now stood above forty-five years.

And as the law has been so settled as not to bear new argument, as to the right of taking all the fish that come into the Society's fishery, if thereby no obstruction be given to the passage of those not taken, and as the fact is so universally known, and of course so perfectly capable of proof, that no fish are obstructed by the works except those that are taken, I may fairly say, that nothing but the extreme of stupidity, or the grossest neglect in those that may have the honor of conducting the affairs of the Society hereafter, can subject them to a defeat in any action that may hereafter be brought against them, if any such should ever be brought which under all the circumstances I deem highly improbable.

I regret that this Report has run to such a length, but I thought it better to trespass a little on the patience of the Society than to omit any thing at all material, my object being to give such a view of the subject, as should serve not only to convey

the information the Society seems to wish for at present, but also as a key by which all documents from the beginning of the title down to this present time can easily be discovered, and resorted to as occasion may hereafter require. And if I have been so fortu nate as to accomplish these ends, I shall not regret the labour it has cost me.

It had nearly escaped my recollection, that pending the appeal to the Lords, I consulted Mr. Romilly, a gentleman well known in your city, and that he gave a very satisfactory opinion on the subject, a copy of which you will find subjoined; but it was not necessary to act upon it, our purposes having been so completely answered by the decision of the Lord Chancellor.

I am, Sir, your most obedient humble servant,

DAVID BABINGTON.

Rutland Square, Dublin, Dec. 11th, 1804. To ROBERT SLADE, Esq.

Secretary to the Hon. Irish Society, London.

COPY OF NOTE TAKEN OF THE REASONS ASSIGNED BY LORD CLARE, ON PRONOUNCING JUDGMENT IN THE COURT OF EXCHEQUER CHAMBER, ON THE 31st DAY OF JANUARY, 1794.

"THIS is an action of trespass for a consequential injury sus"tained by the plaintiff in a salmon fishery, from erecting certain "mounds and weirs upon a rock found to be the soil and freehold "of the defendant; and the single question here in my mind is, "whether such an injury to the plaintiff's fishery in the county of "Armagh has been alledged by the plaintiff and found by the jury "as will avail the plaintiff upon general principles to maintain this "action, or give jurisdiction to the jury of Armagh to assess damages for the injury complained of. To come to this question it "is necessary in the first instance to consider what the ground of "this action is, and to distinguish the cases wherein an action vi "et armis generally will lie, from the cases where an action of "trespass on the case is a proper remedy; and I take it that the "clear legal distinction is, that where the immediate act itself oc"casions a prejudice or injury to the plaintiff's house,land or other "property, there trespass vi et armis generally is the proper re"medy, but where the act itself is not the injury, but a consequence " resulting from it is prejudicial, there an action of trespass gene"rally will not lie, but trespass on the case: and in my judgment "upon every question made upon actions of trespass on the case, "the first point to be kept clear and determinate is, the single dif"ference between actions of trespass generally, and actions for a "consequential injury. In the first instance, the ground of the action "is, that the act complained of constitutes the injury; in trespass "on the case the act itself never is complained of, the legality or

"illegality of it never comes in question, the single point will be, whether the injury alledged by the plaintiff, and found by the ***jury, followed from any act by the defendant. The distinction is "founded in plain and common reason, but it is stated very accu"rately in Reynolds v. Clarke, 2 Lord Raym. 1399; Howard v. "Banks, 2 Burr.1113; Harker v. Berkbeck, 3 Burr. 1556. In illustrating the principle in Reynolds v.Clarke, a variety of cases on the subject are stated. If A in his ground stops the current of a "watercourse to the benefit of which B is entitled, and thereby hinders the water from coming to B's ground, trespass will not lie "but case will; because stopping of the water is no wrong to B "but the consequence of it is: so, where a man in Davis's close dug "two trenches, whereby he diverted the water from the plaintiff's "river, per quod, &c. and after a verdict for plaintiff it was objected, "that the plaintiff ought to have brought an action of trespass, and "that this action on the case was not a proper action. Holt held "that trespass would not lie, because it did not appear that Davis's "close, where the trenches were dug, was the plaintiff's land, and "that the digging the trenches was not a trespass to the plaintiff, "but the damage he sustained was, by diverting the water, which "was the consequence of digging the trenches; and therefore it "was properly an action on the case. In every action therefore on "the case for consequential damage (save in actions founded upon a particular injury done to an individual from a common "nuisance), the legality of the act by itself abstracted, must be "admitted by the plaintiff, because if the act itself be an injury, "trespass generally is the remedy; and the subsequent ground of "injury for which case lies, must be an injury sustained in his "person or property: the injury, and that only, is the ground and foundation of the action; an imaginary injury which may "arise from the act of another will not support the action, but a solid and substantial injury alledged and found to the person "and property of the plaintiff, can alone enable him to maintain this action.

"The next question is, what species of injury it is which the "law allows to be sufficient to maintain an action on the case "for consequential damages resulting from an act not in itself

injurious or unlawful: this point is as explicitly determined as 66 any in the law. First, it is clear and admitted on all hands, "that a damnum absque injuria will not maintain this action. "This is best explained by recurring to the case 11th Henry 4th chap. 47, the Grammar School, &c.

"In my judgment, therefore, and this case and every other on "the subject has made this impression on my mind, that a mere "alteration in the mode of enjoying any property, the exercise "of which is in itself not illegal, will not maintain this action; "so, if I have a mill, and another erects one, I cannot maintain "an action for that, but it is otherwise if by the erection of the "mill the water is prevented from coming to me. Bro. Abr. "Action on the case, p. 42. If a man be prevented from exer, ***cising a right to the same extent as before, that will not sup