"As the commencement of the season for the selling of oysters is drawing near, in order to provide salesmen, it is ordered that the foreman put out a notice for persons, freemen of the company, who are desirous of going to London as salesmen, to give in their names to him or any one of the jury, on or before the 19th instant; and that the jury proceed to the electing of such on or as soon after that time as convenient. And, in order that the company may be provided with fitting and proper vessels to take the oysters to market, it is ordered that notice be posted at the usual place, to require those freemen that have boats fitting and proper, to give notice to the foreman or any one of the jury of their intention of working for the company."

There was no evidence of the giving of such notice by the foreman under the above order; but the plaintiff had notice of it on the 14th of July.

On the 19th, a further order was made by the foreman and jury, as follows:-"It is ordered that three men (naming them) go to Billingsgate, as salesmen. The following are the names of those that have given notice, according to the notice of the 13th of July, of their intention of carrying oysters for the company (naming the men and their boats): and it is ordered that the above-named boats do carry the oysters to Billingsgate Market, and that no boats be allowed to take a turn with them until after the 31st of October."

The plaintiff not having given notice of his intention to carry until the 18th of August, the defendant,-acting under the order of the 19th of July,-refused to employ him and his boat until after the 31st of October.

Before the year 1850, the practice had been, that the foreman and jury ascertained, either by notice or by personal application, before the commencement of each season, who could carry, and then the freemen, after they had ceased to be employed elsewhere, gave notice, and came in after standing by one turn. The plaintiff himself had, however, been excluded in the year 1851, by reason of his omission to give notice of his readiness.

In an action against the foreman for excluding the plaintiff and his boat from turns of carrying, under the above circumstances:

Held, that the order of the 31st of July, 1790, was properly alleged in the declaration as giving the freemen having boats an absolute right to work in turn, and that the incapacity of the man or his boat, not being in the nature of a qualification or limitation of the right, need not be noticed.

The defendant justified under the orders of the 12th and 19th of July, 1852, stating, that, by the former, those freemen who intended to work for the company were thereby required to give notice of such their intention on or before the 19th of July; that the plaintiff omitted to give such notice; that, by the order of the 19th, notice was given that such only of the freemen as had given notice should be employed in carrying oysters for the company, and that those who had not given notice should be excluded until after the 31st of October; and that, by reason of the last-mentioned order or regulation, the defendant, as foreman, refused to employ the plaintiff, as he lawfully might, &c.: Held, that the plea was not sustained by the production and proof of the order above set forth; and that the plea could not be made good by striking out the order of the 12th of July.

Quare, whether the foreman and jury had power to make the order of the 19th of July, 1852, and whether, if they had, it was a reasonable one,-the notice of the 12th giving no-intimation of the time at which the freemen were required to give notice of their intention to carry, nor informing them of the consequences of their omission to do so?

The court will not allow a special case to be amended, by raising a point which the parties have not raised for their consideration.

THIS was an action brought by the plaintiff,—one of the free fishermen or dredgermen of the manor and *hundred of Faversham, in *2] the county of Kent,—against the Company or Fraternity of Free Fishermen and Dredgermen of Faversham,-who were sued in the name of their foreman, the nominal defendant, by virtue of the statute *3 Vict. c. lix., s. 7, the local act for the regulation of the company, intituled "An act for granting certain powers to the Faversham Oyster Fishery Company,"-to recover damages for not employing the plaintiff and his vessel in carrying oysters to Billingsgate Market, London, in his regular turn, from the 19th of August to the

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31st of October, 1852, whereby the plaintiff lost several voyages, and the gains which he would have made thereby.

The declaration stated, that, long before and at the time of the committing of the grievances thereinafter mentioned, and before the passing of the said statute, the said company was, and from time whereof, &c., had been, a company in the nature of a prescriptive corporation, called or known by the name of "The Company or Fraternity of Free Fishermen and Dredgermen of the Manor and Hundred of Faversham, in the county of Kent," and had carried on a certain oyster-fishery in the manor and hundred of Faversham, in the said county of Kent, and the arms of the sea adjoining thereunto: That, from time whereof, &c., the freemen or members of the said company had of right bred, laid, dredged for, caught, had, and taken, and still of right ought to breed, lay, dredge for, catch, have, and take oysters and oyster-brood in the waters and creeks within the said fishery, exclusive of all other persons, the said company paying, in consideration thereof, a yearly sum of 238. 4d. to the lord of the said manor and hundred of Faversham for the time being: That certain courts, called "water-courts," had from time whereof, &c., been held before the steward of the said manor and hundred, at which courts the members, or the majority of the members, of the said company or fraternity then present had, during all the time aforesaid, made orders and regulations for the government and management of the said company: That, by the orders and regulations of the said company, duly made as aforesaid, for the purpose of regulating the *rotation in which the freemen or members of the said company [*4 should lay, dredge for, catch, have, and take oysters and oysterbrood in the waters aforesaid, it was provided that all the freemen or members of the said company should come in according to their situation on the company's lists; that the next freeman or member on the said several lists to those who had the last turn, should be employed in all business of the company, so that every freeman or member might have his turn regularly in rotation; and also that all such freemen or members that should have boats, should work for the said company in regular turns, unless he or his boat should be incapable of doing the business, that is to say, each man, being so capable, should succeed him who worked last, as he should stand in the company's list: That, before and at the time of the committing by the said company of the griev ances thereinafter complained of, to wit, on the 19th of August, 1852, the plaintiff was, and from thence continually hitherto had been, one of the admitted freemen or members of the said company, and the name of the plaintiff then stood next on the list of the said company, and it was then his turn to be employed with his said boat according to the said rule or regulation aforesaid; and the plaintiff, by reason thereof, and then having a boat, and the plaintiff and his boat being then next in regular turn in the said list of the said company, and being then

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capable of doing the work of the said company, ought of right to have been employed in his regular turn among the freemen or members of the said company, in doing the work of the said company with his said boat as aforesaid, and to have continued in such employment during the usual and regular duration thereof, to wit, for the space of six months: Yet the said company, well knowing the said premises, but intending to deprive the plaintiff of the exercise of his said right to such work and employment *with his said boat, in his said regular turn as aforesaid, and contriving and intending to prefer other members of the said company before the plaintiff, to wit, on the day and year last aforesaid, and on divers other days and times afterwards, and while the plaintiff was such freeman and member as aforesaid, refused to employ the plaintiff and his said boat in his regular turn in doing the said work of the said company in manner aforesaid: By means whereof, the plaintiff had lost and been deprived of all the wages, profits, and advantages which he might and would have derived from being so employed with his said boat as aforesaid by the said company as aforesaid, and which the said company had from that time wholly refused to pay or allow to the plaintiff; and the plaintiff and his said boat had been and were, by means of the premises, wholly unemployed: And the plaintiff claimed 1002.

The defendant pleaded-first, not guilty.

Secondly, that, by the orders and regulations of the said company existing and in force at the several times of the committing of the said supposed grievances in the declaration mentioned, it was not so provided as in the declaration in that behalf alleged.

Thirdly, that the plaintiff did not at any of the said times of the committing of the said supposed grievances, stand next on the list of the said company, nor was it then his turn to be employed with his said boat, as in the declaration in that behalf alleged.

Fourthly, that the plaintiff and his boat were not, at any of the said times of the committing of the said supposed grievances, ready for or capable of doing the work of the said company, as in the declaration in that behalf alleged.

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Fifthly, that, after the passing of a certain act of parliament, &c. (13 Vict. c. lix), for granting certain powers to the Faversham Oyster Fishery Company, and before any of the times of the committing of the said supposed *grievances, and before the period or season of the year wherein oysters or oyster-brood can lawfully be dredged for, caught, or taken, to wit, on the 12th of July, 1852,-the same. being a fit and convenient time for that purpose, the foreman and jury of the said company for the time being, having then the management and regulation of the said fishery, and of the affairs of the said company, as in the said act of parliament in that behalf mentioned, in order that the said company might be provided with fit and proper

vessels to take the oysters of the said company to market at such period or season of the year as aforesaid, and that the trade and business of the said company might then be properly and adequately conducted and carried on, caused a certain notice and order to be duly given and made to the freemen and members of the said company,-the said notice and order being proper and reasonable in that behalf, and being a notice or order of such and the like nature as the foreman and jury of the said company for the time being had before the passing of the said act of parliament been authorized and empowered from time to time to give and make in the management and regulation of the said fishery and of the affairs of the said company,-and thereby directed and required that those freemen or members of the said company who had vessels fitting and proper for the purposes aforesaid, and intended to work for the said company at the period or season of the year for dredging for, catching, and taking oysters as aforesaid, should, on or before the 19th day of July, in the year aforesaid, give notice to the foreman, or to any one of the jury of the said company, of their intention of working for the said company as aforesaid; of which said notice and order the plaintiff, immediately after it was so given and made as aforesaid, and before the said 19th day of July, in the year aforesaid, had due notice: That, although, afterwards, and in pursuance of the said *notice [*7 and order so given and made as aforesaid, before and on the said 19th day of July, in the year aforesaid, divers of the said freemen and members of the said company, having vessels fitting and proper for the purpose, gave notice to the foreman and jury of the said company of their intention of working for the said company as aforesaid; yet that the plaintiff wholly neglected and omitted so to do, and did not at any time before or on the said 19th day of July, in the year aforesaid, give any such notice either to the foreman or to any one of the jury of the said company; and that afterwards, and before the period or season of the year for dredging for, catching, and taking oysters as aforesaid, and before any of the said times of the committing of the said supposed grievances, to wit, on the 19th of July, in the year aforesaid, by a certain other order and regulation then made for and on behalf of the said company by the foreman and jury of the said company for the time being, the same being a proper and reasonable order and regulation in that behalf, and being an order and regulation of such and the like nature as the foreman and jury of the said company for the time being had before the passing of the said act of parliament been authorized and empowered from time to time to make in the management and regulation of the said fishery, and of the affairs of the said company,— it was ordered and provided that the boats or vessels of those of the said freemen or members of the said company who had so given notice of their intention of working for the said company as aforesaid, should be employed to work for the said company, and to carry the oysters of

the said company to market, to wit, to Billingsgate Market, and that no other boats or vessels should be allowed to take turn with them, or be employed in working and carrying the oysters as aforesaid with the said boats or vessels of the said freemen or members who had so given notice as aforesaid, until *after the said 31st day of October, in *81 the year aforesaid,—of which said last-mentioned order and regulation the plaintiff, immediately after the making thereof, and before any of the said times of the committing of the said supposed grievances, to wit, on the said 19th day of July, in the year aforesaid, had due notice; and, by reason of the said several premises aforesaid, and by virtue of the said last-mentioned regulation, the defendant, according to his duty in that behalf, as such foreman of the said company as aforesaid, afterwards, and at the said several times in the said declaration mentioned, the same being respectively after the said 19th day of July, and before the said 31st day of October, in the year aforesaid,-refused to employ the plaintiff and his boat, as in the declaration in that behalf mentioned, as he lawfully might for the cause aforesaid, he, the plaintiff, and his said boat, not being then entitled, by reason of the said several premises aforesaid, to be so employed as aforesaid.

Sixthly, that, before any of the said times of the committing of the said supposed grievances, and before the period or season of the year wherein oysters and oyster-brood can lawfully be dredged for, caught, or taken, to wit, on the 12th of July, 1852, the same being a fit and convenient time for that purpose, the foreman and jury of the said company for the time being, for and on behalf of the said company, in order that the said company might be provided with fit and proper vessels to take the oysters of the said company to market at such period or season of the year as aforesaid, and that the trade and business of the said company might then be properly and adequately carried on, caused a certain notice and order to be duly given and made to the freemen and members of the said company,-the said notice and order being proper and reasonable in that behalf, and thereby directed and required that those freemen or *members of the said company *9] who had vessels fitting and proper for the purpose aforesaid, and intended to work for the said company at the period or season of the year for dredging for, catching, and taking oysters as aforesaid, should, on or before the 19th of July, in the year aforesaid, give notice to the foreman, or to any one of the jury of the said company, of their intention of working for the said company as aforesaid,—of which said notice and order the plaintiff, immediately after it was so given and made as aforesaid, and before the said 19th of July in the year aforesaid, had due notice: That, although, in pursuance of the said notice and order so given and made as aforesaid, afterwards, and before and on the said 19th of July, in the year aforesaid, divers of the freemen and members of the said company, having vessels fitting and proper for the purpose,