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 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, it was ordered and provided that the boats or vessels of those of the said freemen and 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 Bil[*10 lingsgate Market; and that no other boats or vessels should be allowed to take turn with them, or be employed in so working and carrying the oysters as aforesaid with the boats or vessels of the said freemen and members who had so given notice as aforesaid, until after the 31st of October, in 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 of July, in the year aforesaid, had due notice: That the said several times when the said notice or order in that plea first above mentioned, and the said order and regulation in that plea last mentioned, were respectively given and made as aforesaid, were times and periods of the year when the general annual courts of the said company were not, and ever since the passing of the said act of parliament in the fifth plea mentioned had not been, and could not lawfully be, held; and that, at such times and periods respectively, and during the intervals between the general courts of the said company, the foreman and jury of the said company for the time being had, and from time immemorial had always had, the management and regulation of the said fishery and of the affairs of the said company for and on behalf of the said company, and had used to give and make, and of right had given and made, from time to time, for and on behalf of the said company, such notices, orders, and regulations in respect thereof as had by them been deemed necessary or expedient in that behalf; and by virtue and in consequence thereof, and because the said notice and order in that plea first above mentioned were at the said several times when they were so respectively given and made as aforesaid deemed by the said foreman and jury of the said company for the

time being to be, and the same were then, necessary and *expe*11] dient for and in respect of the management and regulation of the said fishery and of the affairs of the said company, the same respectively were then so given and made as aforesaid; and by reason of the several premises aforesaid, and by virtue of the said last-mentioned order and 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 declaration mentioned,-the same being respectively after the said 19th of July, and before the 31st of October, in the year aforesaid,―refused to employ the plaintiff and his said 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.

Upon these several pleas, the plaintiff joined issue.

The cause came on to be tried before Jervis, C. J., and a special jury, at the sittings in London after Trinity Term, 1853, when a verdict was found for the plaintiff, damages 40s., subject to the opinion of the court on the following case:—

The company, as stated in the declaration, is in the nature of a prescriptive corporation, and was established, and exists, for the purpose of breeding, purchasing, and maturing, dredging for, and taking oysters within the limits of the declaration mentioned, and selling and disposing of such oysters.

The oyster season begins on or about the 4th of August, and ends in April or May; and, during that period, the members or freemen of the company, or the tenants of the manor of Faversham, as they are sometimes called, are employed, some of them as dredgermen, others, who have boats fit for the purpose, as carriers, to carry the oysters to Billingsgate, and others as salesmen stationed at Billingsgate to sell the oysters, for which *services certain payments are made from *12] the funds of the company. None of the freemen are compellable to work for the company; and many of them, therefore, seek to obtain more remunerative employment elsewhere, regardless of the company.

The orders, rules, and regulations for the government of the company are made in certain courts called water-courts, held in the manner stated in the declaration; and the orders, rules, and regulations which have been so made from time to time, were put in and proved at the trial, and were to be taken as part of the case.

The plaintiff, being a freeman of the company, had, during the seasons previous to 1852, that is to say, during the seasons between 1847 and 1852, on more than one occasion, been excluded for non-compliance with the orders of the company, and on account of the unfitness of his boat. In the intervals between the oyster seasons, those freemen

who have vessels have been accustomed to employ them in various ways, and in other trades, and in foreign voyages.

Before the commencement of the oyster season of 1852, the plaintiff with his vessel had been employed in carrying wool from Faversham to Dunkirk; and, having returned from his last voyage to Dunkirk on the 18th of August, he gave notice to the defendant on that day that he was ready to carry oysters to London.

The 19th of August was the day on which the plaintiff ought to have been employed in his regular turn in carrying oysters to London, according to his position on the list of the company; and his vessel was then fit and ready for such employment.

The company refused to employ the plaintiff, on the ground that he had not complied with the rules and orders hereinafter mentioned, and gave him notice, that, in consequence of such non-compliance, he would not be employed until after the 31st of October, 1852.

*The plaintiff continued, notwithstanding this refusal, to have [*13 his vessel in readiness, on seven separate occasions when his turn came, before the 31st of October; and, on each occasion, gave notice. to the defendant on the previous day of his readiness to be employed in carrying oysters to London, in the usual manner. During the whole time the plaintiff's boat was fit and ready for such employment. (a)

(a) The following is a copy of the evidence as set out from the judge's notes:-Examination in chief of William Hills, the plaintiff :-"Married man, and freeman. Took my freedom in 1837. I have a boat, the Mary Ann, a sailing-boat of 18 tons; proper to carry oysters to London. There are about 280 freemen. The oyster season begins the 4th of August, and ends in April or May. We get 31. a voyage. We find a man, and provisions. The profit is two guineas. At times I work to France. Last summer I carried wool between Faversham and Dunkirk. Returned in August: my turn came the 19th. I know the defendant: he is foreman of the jury. There are twelve jurymen. I gave notice on the 18th, to take on the 19th. The defendant said he should not put oysters in, because I ought to give notice of my turn. I was not to take in till October came round. My turn came the 24th of August. I applied the 23d; next, the 31st; then, the 7th, 16th, and 25th of September, and the 4th and 13th of October. At these times, I was ready with my boat to carry oysters to London. I heard there was a notice: I heard of it the 14th of July: it did not mention any particular time. I thought it time enough to give notice when I was ready to carry. My turn came the 24th of November. I applied to be allowed to carry. I was in the house in the evening. He (Hunt) told me the man above was to take; but he altered his mind, and sent word to the men below."

Cross-examination. "There had been a similar regulation the year before: the boats were to send in notice in July. My boat worked the year before. I sent in my name in July. Several were excluded the year before, because they did not send their names in. I was excluded in 1850 by the same rule. In 1849, I sent in my name. I bought my vessel in 1848. I had a boat before, the Providence,-and was excluded because she was unfit. In August, Mr. Watson employed my boat to carry wool. He began in April. I arrived home the 15th or 16th of August, and he had no more wool to go. I was not ready to take my turn when the season first began. I went to Hunt's house at 9 in the morning on the 18th. I saw him about 2 o'clock. I applied to take in oysters the next day. There were three besides me excluded:-Clark, Day, and Hill. Hill had full employment elsewhere: the others did not have full employment; the turns had passed over them and come to Clark, who stood before me. From the 12th to the 15th of August, I made 47. and 57. If there had been a load of wool, I should have taken it; but, not having a freight, I applied for the oysters. I said nothing to Mr. Watson about my turn for the oysters. On the 4th of August, I earned 12. 168. From June 9th to August the 12th, I had been six voyages, earning about the same. On the 21st of September, I sailed from Faversham with cargo to France: earned about the same. Came back the 24th of September, knowing I should not be allowed to take. We sailed again the 31st of October. Began to take VOL. XV.-5

*14]

*It was further proved in evidence, that the general regulation and management of the fishery, and of the affairs of the company, is vested in the foreman and jury; *and that the jury is *15] composed of twelve freemen; and that, at a meeting of the foreman and jury, held on the 12th of July, 1852, the following order was made:

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 *16] 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 fit and proper vessels to take the oysters to market, it is ordered that notice be posted at the usual place, to require those free

in, the 28th of October. Came back about the 2d of November. On the 19th of August, I went dredging. I could have done both. We lose our turn of drodging, when we go to London. Worth about 37. Clark was away on the 24th of November. Samuel Day had a small boat. William Harris stood above him. Day stood on the list for the 24th. On the 23d, I went to Hunt about 9 o'clock in the evening. I did not expect a turn that week, because there were boats before me. My boat was above bridge: I said I would endeavour to get the boat down the creek. I did not say I would take the turn after the 24th: I was not sure I could get my boat down. My boat was not down; and he put it into Chapman's boat. I applied twice again to Hunt,-the 18th of August, and the 23d of November. The 23d of August, I applied to Oakenfold. I put the dates down from time to time as I made the applications. As my turn came, I put it down on this paper."

Re-examination. "I took the paper from the almanack. Crossed each day, as it occurred. My earnings in the wool trade were uncertain: my turn was certain. The 24th of November, Hunt told me Day was to go, about 7 or 8: the tide was 10 o'clock. I perhaps ought to have got down."

Examination of John Hunt, the defendant. "I have been foreman of the fishery for more than thirteen years. The jury is twelve. I am well acquainted with the course of the company, and have been a member thirty years. They have always used their power by regulating the work, the carrying of oysters, and all matters relating to the company. They order the time when, the places where, and the quantity. They regulate the boats to go. There are many who go to work on other oyster-fisheries, and are excluded by court and jury. When they return, they must give notice of their return. They ascertain what boats are fit to go; and, if unfit, they exclude them. The Providence, the plaintiff's boat, was excluded because unfit. Boats are excluded year after year, from various causes. The practice of requiring notice from the freemen who had boats, and intended to carry, began in 1850. Before that, we ascertained by personal application who could carry, before the commencement of each season, and the freemen, after they had ceased to be employed elsewhere, gave notice, and came in after standing by one turn; so that, before 1850, when Hills applied on the 18th, he would have stood by from the 19th, and have come in the next turn, if he gave notice. It has always been ascertained, either by notice or personal application, what boats are at home and will work for the company. The duties were the same before 1840, as now. I do not remember instances of strangers being employed to carry oysters before 1840. After he has slipped by one turn, he is entitled to the next turn, without further application, if he has not gone elsewhere. That would have been the practice now, but for the order of the jury."

Examination of John Smith. "I am seventy-five years of age, and have been a dredgerman all my life. We used to take everything in rotation. We used to meet as occasion required, altering the starts, and so on. If the boat was not fit, they would not put them in. There were always plenty of boats: if there were not boats enough, they must hire others. We buy common oysters, and lay them there. The foreman of the jury makes the resolutions as to the boats to carry to Billingsgate, and has always done so. When a man comes in in the season, he must give a week's notice, or stand by a turn. That was so before the late order."

men that have vessels fitting and proper, to give notice to the foreman, or any one of the jury, of their intention of working for the company."

At a meeting of the foreman and jury, held on the 19th of July, 1852, the following order was made:

"It is ordered that three men go to Billingsgate, viz., W. Oakenfield, senior, first and permanent salesman, Thomas Ely, second, and to stay as circumstances and market allow, G. Jemmett, third, to continue till ordered home.

"The following are the names of those that have given notice, according to the notice of the 13th of July, (a) of their intention of carrying oysters for the company :-Jarman Dane, Mayflower; William Harris, Davington; Ch. Lightfoot, Cruiser; Thomas Chapman, Queen; Joseph Brenchley, Eclipse; G. Gemmett, Victoria; E. Dane, Fidelity; W. Clark, Liberty; T. Wilson, Endeavour.

"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."

On the 14th of July, the plaintiff had notice of the order of the 12th of July; but he considered it time enough to give such notice when he was ready to carry the oysters, and therefore gave no notice to the company until the 18th of August, as above mentioned; although he had been excluded from carrying, in the year 1850, *in consequence of his not having sent in his name, as required by the order then in force.

[*17

The defendant, acting on the order of the 19th of July, refused to employ the plaintiff and his vessel to carry oysters to London, as before stated.

It was further given in evidence, on behalf of the defendant, that the foreman and jury always had been accustomed to exercise the power of regulating the work,—the carrying of oysters,—and all matters relating to the company; that the foreman and jury order the time when, the places where, and the quantity of oysters to be carried: and that they regulate the boats, determining which are to go, and excluding such as they deem unfit; that there are many freemen who go to work for other oyster-fisheries, and are for that reason excluded; that the practice of requiring notice from the freemen who had boats, and intended to carry oysters to London, began in 1850; that, before that time, 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, so that, before 1850, when the plaintiff applied on the 18th, he would have stood by from the 19th, and have come in the

(a) Meaning a notice given in pursuance of the last clause in the order of the 12th of July.