66

"follow to the defendant; as she must evidently lose in profit "whatever he might gain. In every such case it has been de"termined that the injury alone is the foundation of the action. "But when we look at this verdict, see how infinitely stronger it is. "It is true the plaintiff alledged, he loses the profits by this injury. In my judgment, if the jury had even found that fact, the injury alledged would not maintain the action, because the self same injury from another mode of fishing with the legal ex"ercise of a right, resulted to the proprietor of the fishery. But "the jury find, that by the obstructions divers large quantities "of fish were prevented, &c. but not a word finding that by these "obstructions his fishery has been injured, not any inference "arises that lord Donegal has not caught the self same number "of fish as before, or that he sustained any loss. And when we "look at this case, in my judgment, this want of finding shews a "want of jurisdiction in the Armagh jury. The plaintiff declares "for a fishing lying in several counties, Tyrone, &c. lastly in Armagh: What can give jurisdiction to the Armagh jury to "assess damages, unless they found the injury to have been done "to the fishery in Armagh especially? I have looked through the verdict, and there is not a word to shew, that any injury to the Armagh fishery has been done, although an injury there must "be alledged, because if not, the venue being there, it would be a mix-trial: therefore, in my judgment, here is, from defect of "finding an injury in the fishery of Armagh, a plain want of juris"diction in the Armagh jury to assess damages, because it is the "locality of the injury that can give jurisdiction to them, and "there is not any thing like allegation or insinuation that any "injury has been sustained. Supposed they found an injury

16

Londonderry, would not that be a mix-trial? Is it not equally "necessary that the jury, to give themselves jurisdiction, should "find a specific injury in the county of Armagh, where the party "has laid the injury for the very purpose of giving them jurisdic"tion? Therefore on the very face of the verdict there is no injury found, no injury shewn to sustain the action. I have turned "the case over and over again in my mind; I have looked through "all the cases that bear on the question, the injury as alledged, the “ verdict not finding any injury at all; and considering the locality "of the injury, and the jury omitting to find any injury in Ar"magh, it is a plain and palpable want of jurisdiction. They had no manner of jurisdiction to assess damages. The case of lord "Lonsdale does not apply to this: I have made enquiry from a "gentleman of long experience in Westminster-hall: he thought a new trial was awarded, but did not recollect it was more a "trial of force than of law. But see what the case was: the plain"tiff there declares against the defendant for having drawn a net "entirely across the river, fixed upon poles from one side to the "other, by which great quantities of fish were prevented from pass"ing, by which he lost the profits, &c.; and the jury found, &c. By 2d Henry 6th, c. 15. Eng. it is expressly prohibited "to any man to erect nets across rivers; and therefore this erect

66

66

66

66

66

ing of this net by lord Lonsdale was under this act of parliament " a clear nuisance presentable. I believe the law is clear, that any man who alleges a substantial injury arising from a common nuisance, will have a ground of action; therefore it is no authority in this case. Again, it is stated in the declaration "and found by the jury, that the plaintiff lost the profits: which is "not the case here.

66

66

66

"I have turned the case again and again in my nind; it is new certainly, and there is no decided authority. It must therefore go by principle; and I cannot satisfy my judgment that the injury alledged is sufficient to maintain the action. But when "the majority of the judges in the exchequer and the assessors "here now agree, I shall not upon this occasion set up my own opinion, because I suppose the case will go further. And "therefore I shall here direct the judgment of the inferior court "to be affirmed."

66

66

COPY OF MR. ROMILLY'S OPINION.

"It appears to me, that the decree of the court of exchequer "is erroneous: That decree orders, that works, all of which had "been erected a great number of years ago, and long before the "interest of tenant for the life (who was the only defendant in "the cause) commenced, should be prostrated; it is manifest that "this must materially affect the rights of those who are entitled “to the inheritance, and yet the persons entitled to the inheritance were not parties to the suit, and had no opportunity of being heard, even if there had been proper parties to the suit. "I think that the court ought not to have made the decree which "it has done, at least not without first giving the corporation an opportunity of trying their right at law; the objection however on the ground of the proper parties to warrant such a decree "not having been before the court, seems to me to be unan"swerable, and I should think on that ground alone the decree "would be reversed by the House of Lords; in the mean time "however and before the appeal can be heard, irreparable injury may be done to the corporation by the execution of the decree. "The only means that occur to me for preventing this, is an application to the court of exchequer; and for that purpose I "think the corporation ought immediately to file in that court "an original bill, in the nature of a bill of review, against lord "Donegal and lady Hamilton, stating the former proceedings, and "that the plaintiffs were not made parties to the suit and had no opportunity of being heard upon it, and that their interests

66

66

are essentially affected by the decree, and praying that the "decree may be reversed; and that in the mean time, and till the "cause can be heard, all proceedings under the decree may be suspended. And I think that as soon as the bill is filed and the "defendants have appeared to it, a motion should be made to stay the execution of the decree. A bill of the nature which

66

"I have mentioned I apprehend the only proceeding by which a person, whose rights are affected by a decree made in a suit to "which he was not a party, can be relieved. See Mitford's Plead"ings, 83.

66

"I am of opinion that the decree of the court of exchequer is binding only during the life of lady Hamilton, and that if the "decree was executed, the corporation would upon lady Hamil"ton's death have a right, notwithstanding the decree, to re-erect 66 traps, similar to those which are now existing. It is however I "think very important for them to prevent, if they can, the decree 66 being carried into execution.

"Lincoln's Inn, Nov. 6th, 1801."

“SAMUEL ROMILLY.

NARRATIVE

OF A

Journey to the North of Ireland,

IN THE YEAR 1802,

BY ROBERT SLADE, Esq.

SECRETARY TO THE IRISH SOCIETY.

ΤΟ

THE

HONORABLE SOCIETY OF THE GOVERNOR AND ASSISTANTS OF LONDON OF THE NEW PLANTATION IN ULSTER, WITHIN THE REALM OF IRELAND:

GENTLEMEN,

YOU have been pleased to signify a wish to receive the communication of any observations I may have made during my late journey into that part of the north of Ireland, in which the Society's lands, or those belonging to the twelve London companies, are situated. I consider myself highly honoured by such an intimation, and feel mortified that I visited the country without having provided myself with such documents relating to the Society as might have assisted me in the few cursory enquiries I was able to make. This happened from the circumstance of my visiting the country merely to gratify the curosity of myself and two sons, to whom I had promised a sight of that great and extraordinary feature of nature, the Giants' Causeway; and feeling a kind of relation with the country in consequence of the situation I have the honour to hold under your auspices, I omitted the precaution of procuring any letters of introduction. Thus circumstanced, the few enquiries I made were mostly confined to the following points; viz.

1. The general state and appearance of the country through which I travelled; particularly in regard to any plantations, either upon the Society's lands, or those belonging to the twelve chief companies.

2. The state of the fisheries, in regard to which the Society has had so many expensive law suits with lord Donegal, and of which a lease was granted a few years since to sir George Hill

and Mr. Beresford.

3. The actual state of the rector of Coleraine, whose death has happened, and whose living has been presented to by the Society since my return.

4. The situation of the lands near Londonderry, which are called "Quarterlands" in the report of the 11th December, 1789; and therein stated to be lett on determinable leases, at the sum of £990 0 6; and as being capable of considerable improvement when the said leases shall expire.

5. The state of the lands called "Grandsagh." which are also situated near Londonderry; and which in the year 1794, the Society, after advertising to let them by a lease for 41 or 61 years, were induced to leave in the hands of the occupying tenants, for the sake of trying the experiment of their capacity to improve them by laying out a sum of money, in which case leases were to be granted to them.

6. The state of the spire of the cathedral at Londonderry, towards the rebuilding of which the sum of £200 has been voted by the Society.

Finding, on my arrival at Londonderry, that the gentleman who acts as deputy to Mr. Beresford, the Society's general agent in collecting the Society's rents, resided many miles from the city, I deemed it improper for the Society's Secretary to be on the spot without making himself known, and therefore paid a visit to Mr. Hill, the mayor, though an entire stranger to him.

He being absent at Strabane, attending the assizes, I proceeded to the public coffee-room, where I was recognized by captain Lecky, a tenant of the Society, who had seen me in London on renewing some leases, and who introduced me to his brother, alderman Lecky, and afterwards accompanied me to Brook Hall, the residence of sir G. Hill, who is member for the city. These visits, and one I paid to Mr. Cunningham, brother of Mr. Cunningham, a respectable merchant in London with whom I was acquainted, proved the sources of an introduction to the members of the corporation in general, from many of whom I received those hospitalities for which the Irish are so justly celebrated; and I am persuaded that if I had remained at Londonderry for some weeks, instead of a few days, I should have felt no relaxation in their civilities.

Mr. Hill, the mayor, did me the honor to call upon me on his return from the assizes, and within a day or two afterwards, invited myself and my two sons, who were with me, to a dinner given by the corporation, at which I was informed that they had voted the freedom of the city to be presented to us, and that as a token of their respect for the London Society, in the person of their Secretary, they had resolved mine should be contained in a gold box. I should not presume, gentlemen, to say so much of myself, unless I felt it connected with the Society, as having led to a conclusion in my own mind, that the corporation of London derry, notwithstanding my assurances to the contrary, considered my journey as having some object of inquiry with the concur