BRUCKLESBANK versus smith esquire Tuesday that Nov navigation be not to be  impede by cast forth of the ballast out of ship this be a special verdict from  Northumberland assize upon a action of trespass for break and enter the  plaintiff ship in the river tine at Newcastle upon tine and take and carry  away a anchor to which the defendant plead not guilty the special verdict find  that the defendant be a justice of the peace of and for the town and county of  Newcastle upon tine and that the plaintiff be master of a ship call the  LeedsMerchant float c in the river tine be a navigable river that three tun of  ballast and more be unload out of the say ship into a machine or vessel call a  hopper in the say river with intent that it shall be carry therein into the  high and open sea and that it be accord carry out of the say river into the  high and open sea and be there cast out of the say hopper where the water be  more than fourteen fathom deep at a distance from any port haven channel or  navigable river it find that Thomas field before the time of the suppose  trespass videlicet on such a day c come before the defendant be a justice of  peace c and lie information of the fact of put the ballast into the hopper  with a intent that it shall be drop out of the say hopper into the water and  not be cast c upon the landwhere the tide and water never flow or run contrary  to the statute it find that the plaintiff be summon to appear and that he do  appear before the say justice and that proof be then and there make by his  confession that it be so put on board the hopper in the say river with intent  that it shall be therein carry out of the say river into the high and open sea  and cast therein at the depth of fourteen fathom and upward at a distance from  any a the word of the Act cite above be not so whether the sense may not be  such be another thing b strange will vide also vern c as to executor see barn  barn barn as to assignee of bankrupt it be say that the affidavit of the  assignee be not to be admit unless it appear that the bankrupt have refuse to  make a affidavit barn and see burr ace v post Craufurd v Whittal hill b r S p  ace burrow er p haven c ut above where the tide or water never flow or run it  be find that the defendant thereupon convict the plaintiff and adjudge he to  be a offender against the statute of g c then it find the burrow conviction  before the justice in haec word and that the then defendant the now plaintiff  be adjudge to forfeit S for the say offence it find that the justice of peace  the now defendant issue his warrant under his hand and seal to levy the same  by distress c and that William Bruce a sergeant at mace to who the warrant be  direct by virtue of the say warrant take the say anchor c this case be first  argue on Friday the that of June last by Mr win for the plaintiff and Mr  sergeant pool for the defendant Mr win rehearse the statute of g c and say  that the fact find to have be prove be no offence within this Act and  consequent the defendant be a trespasser in levy the penalty nothing be find  to have be prove but a mere intention this be a penal law and must be construe  strict h c ult give the penalty for cast rubbish into haven road channel c  then g c describe the offence to be cast throw out or unladen any ballast  rubbish c but only upon the land where the tide or water never flow or run and  the preamble describe the mischief to be cast throw out and unladen their  ballast either on the shore or on the side and below the usual and full  seamark and do other annoyance to the detriment and obstruction of navigation  in the Thames this method of dispose of the ballast be never treat as a  offence and that be under the care and inspection of the trinityhouse the  mischief which the legislature have in view be throw the ballast c either on  the shore or on the side of river and below the full seamark but this be in  the open and high sea above fourteen fathom deep at a distance from any port  haven channel or river he rely upon the intention and spirit of this law  rather than upon the letter of it which intention of the Act he say will plain  appear from the proviso at the end of it V sect penult and that it be intend  sole to prevent prejudice to the navigation in haven burrow port road channel  or river and for no other purpose but nothing be state here of any sort of  prejudice actual do to the navigation or even of any such intention to  prejudice the navigation of the haven port road channel or river the ballast  be carry out of the river into the high and open sea and there cast out at  above fourteen fathom depth and at a distance from any port haven channel or  river and the intention only be lie accord and the confession be of nothing  more than such a intention but there be neither proof nor confession of any  fact whatsoever nor be any actual injury do Mr sergeant pool contra for the  defendantIt be impossible for we in the nature of the thing to prove that the  ballast be actual drop in the river for this be do private from the bottom of  the hopper it be necessary therefore for we to charge the intent as the  offence and this intent the defendant have confess and the offence as we have  charge it be within the Act videlicet put the ballast into the hopper with  intent c this be a positive law that no person shall cast throw out or  discharge out of pound any ballast c but only upon the land where the tide or  water never flow or run to which positive law the fact charge be direct  contrary the present Act of g be make to enforce and make more easy the  prosecute offence against the former statute of h upon which it be difficult  to prosecute the offender in some case and here be proper exception upon  proper occasion in all other respect it be a general law it be say indeed on  the part of the plaintiff that here be no actual prejudice do to the  navigation but what the plaintiff have do may by some mean or other prejudice  the navigation of the river it be in their power to drop the ballast out of  the hopper in the channel of the river without any possibility of be discover  and this statute be in negative word videlicet but only upon the land   light  affirm that there be a diversity between a Act of parliament in the negative  and one in the affirmative and show such diversity burrow er p therefore he  pray judgement for the defendant burrow Mr win in replyThis Act ought to be  construe strict as it be a restraint of a commonlaw right which a man have to  lie his ballast where he please provide he be not guilty of a nuisance in so  do and this be no offence against the spirit and intention of this law nothing  be charge but a intent which intent be not even if it have be execute a  substantial offence against this law Lord Mansfield this be a general question  which go far than this particular case Mr just foster ask if the corporation  of Newcastle be not conservator of the river tine it be answer that they be Mr  just FosterCorporations ought to be protect in their just and ancient right  the court do not upon this first argument give any opinion but it be order to  stand for a further argument beyond concilium and now Mr Clayton argue on  behalf of the plaintiff as before that this fact find be not a offence within  the Act Mr Norton be go to answer he on the part of the defendant but Lord  Mansfield stop he from enter into it at all it be a very plain case and clear  against the express prohibition of the Act which provide that it shall not be  throw but upon the land whereas this man say that he have find a better way  than that which the Act have express prescribe but here be such a open to  fraud in this way that he have think a better one that it will be dangerous to  trust to this method though it be not prohibit however it be enough that it be  contrary to the direct and express provision of the Act indeed if it be put  upon the hopper in order mere to carry it upon the land that will only be the  proper mean of do it and therefore will not be a offence against the Act but  this be with intent to lie it in the water burrow and there can be no security  as to the place where the hopper may drop it it be mighty easy from the  construction of the hopper to drop it private and it be also the interest of  the person who carry it in the hopper to drop it as soon as he can that he may  come the soon again to fetch more the shift it out of one ship into another  without intention to drop it any where will not be a case within the Act for  that will not be a cast or throw out at all within the meaning of the Act the  other three judge agree in term with Lord Mansfield and all of they speak  explicit to the same effect per cur unanimous judgement for the defendant