brown case the trinity house appellant MALTIS rial and other respondent that  February Mews dig go where the defendant will not admit a general right but  put the plaintiff to the trouble and expense of prove it he shall pay the cost  of the suit viner vol p can Eq can ab can the appellant be seize in fee of the  ancient office of lastage and ballastage for ship in the river Thames and of  the sole right of ballast of ship in the say river between London bridge and  the main sea eastward which use and require ballastage to sail with or to be  put or take into they respective and of sell all ballast material or  merchandise to be use as ballast for they and the lastage and ballast or load  of sand gravel soil stone earth chalk rubbish clay flint lime soapashes brick  tile or any other thing merchandise or commodity whatsoever take from any  wharf creek coast bank or shore upon or adjoin to the river Thames for lastage  ballastage and ballast or load as aforesaid and of the gravel sand and soil of  the say river as sole belong to they together with the several ancient fee  perquisite and profit to the say office of lastage and ballastage belong and  appertain this office be grant to the appellant inter alian for the better  support relief and maintenance of poor maim and decay seaman their wife widow  and orphan and other charitable use as well as to enable the appellant to  cleanse and take care of the channel and navigation of the river Thames within  the limit aforesaid and accord the appellant be constant at very great charge  in cleanse and take care of the say river have not less than sixty ballast  light and one hundred and twenty man constant at work upon the shelfs and  sandbank of the river and they also maintain ninetythree almshouse and the  poor people therein and likewise relieve two thousand three hundred  outpensioner consist of decay seaman their wife widow and orphan to who they  pay pound at least monthly and the great part of it out of the produce of this  ballastoffice in Michaelmas term the appellant exhibit their bill in the court  of chancery against the respondent and other charge that the respondent rial  be owner of a wharf on the river Thames between London bridge and the main sea  and by virtue of several contract with scavenger and raker have great quantity  of dung and soil bring to his wharf with which he have for three year last  pass furnish several of the other defendant and other master of ship in the  say river with ballast for their ship and that the say respondent have ballast  a great number of ship ride within the say limit with such dung and soil and  sell the same as ballast And the appellant by their say bill insist that all  ballast and sell of ballast for brown ballast of ship within the limit  aforesaid and of loam sand chalk stone rubbish soil or any other material or  merchandise to be use as ballast be against the appellant right and a  prejudice to their say ballastoffice and that dung be proper ballast as well  as loam sand and other material they therefore pray that the respondent rial  may account with they for such dung and soil or other material put on board  such ship and use as ballast and that he may be enjoin for the future from  sell or dispose of such dung and soil or other material for ballast brown er p  the respondent rial by his answer to this bill state that his father be for  many year possess of a dung wharf at a place call pickle herring stair in the  parish of saint olaf Southwark near the river Thames and between London bridge  and the main sea eastward that such wharf be then hold by the respondent and  have be use as a dung wharf for upward of forty year that he have contract  with scavenger and raker in and about London for dung and soil to be bring to  the say wharf which he sell to several of the defendant and other person as  manure for their land and garden but not for ballast of ship though he think  himself not concern how they use the same when on board that he clear such  dung or soil which he so sell at the customhouse as merchandise that the sell  of manure for land to master of ship within the limit aforesaid and especial  to collier who return empty have be a ancient usage time out of mind and  therefore he put the appellant upon the proof of their exclusive right on the  saint of June this cause be hear before sir Joseph Jekyll and sir Jeffere  Gilbert two of the then lord commissioner for the custody of the great seal  when their lordship be please to decree a perpetual injunction to restrain the  respondent rial and the other defendant from use any soil or dung mix with  soil for ballast any ship or vessel go out of the river Thames between London  bridge and the main sea eastward and decree the respondent rial to account for  all the money receive by he or by any other person for his use of the  respondent noble for all the soil or dung mix with soil by he sell and put on  board any ship or vessel contrary to the appellant grant in take which account  the respondent rial be to have a allowance for the value of the soil or dung  mix with soil sell by he to the respondent noble and by they put on board any  ship or vessel or use by they for ballast of any ship or vessel within the  limit aforesaid and also of the charge of carry such soil or dung mix with  soil on board such ship or vessel and the respondent rial be decree to pay to  the appellant what upon such account shall appear to be the clear profit of  such soil or dung mix with soil over and above such value and charge as  aforesaid but their lordship do not think fit to give cost of suit on either  side from this decree the appellant appeal insist p York c Wearg that the  respondent ought to have be enjoin from use any dung brown though not mix with  soil for ballast ship within the limit aforesaid because dung alone may as  well be use for ballast as soil or dung mix with soil and the ballast with  dung alone will be attend with the same ill consequence with regard to the  appellant and will be equal prejudicial to their exclusive right of ballast  ship within the limit of their charter and which right have be establish by a  decree of the court of exchequer on the that of may and by decree of the court  of chancery in the year that by the decree in question the respondent rial be  to account only for the money receive by he of the respondent noble for all  the soil or dung mix with soil sell or put on board any ship or vessel within  the limit aforesaid for ballast whereas it be conceive that rial ought to  account with the appellant for all the dung sell by he and put on board and  ship within those limit for ballast although such dung be not mix with soil  and that the rather because it will be impossible for the appellant to  distinguish between dung mix and not mix with soil that the respondent rial  ought also to account with the appellant not only for all money receive of the  respondent noble but likewise for what he receive from any other person or  person as well for all the dung as for the soil and dung mix with soil sell or  put on board any ship or vessel within the limit aforesaid for ballast and the  rather in regard rial by his answer admit that he have sell above tun of soil  or dung to other person beside what he have sell to the respondent noble last  that no cost of suit be decree to the appellant but which it be conceive they  be entitle to inasmuch as the respondent rial have make this suit necessary by  not admit the general right of the appellant which they have therefore be at  great expense in prove and with respect to which they have eventual prevail to  all this it be answer I will n fazakerley on the part of the respondent rial  that dung be in the nature of merchandise and how reasonable soever it may be  think to lie merchant under the obligation of take their ballast from the  appellant where they make use of unprofitable material for ballast which brown  er p can be of no other use to they yet it be conceive to be most unreasonable  to extend this pretend right of the appellant so far as to restrain the  merchant from use their ship to the best advantage and oblige they to ballast  their ship with unprofitable merchandise when they can employ that room to  profit and advantage by use good and merchandise as ballast that it can make  no legal or reasonable difference whether such good and merchandise be dung or  any other valuable commodity and though the appellant have by their bill  insist upon a right of ballast and of sell ballast or material or merchandise  use as ballast yet it be apprehend no such right be establish that it can  never be intend that the appellant by virtue of their say office shall  restrain any person from take in their ship or vessel within the prescribe  limit any load of merchandise under pretence that the same be or may be use to  brown ballast such ship or vessel for if this be so the take in iron lead or  timber may be deem ballast but which the appellant do not venture to insist  upon that dung have be export as merchandise for many year pass for the manure  of land and garden and great profit have be thereby make and the very dung  sell by rial be sell as merchandise and as such enter and clear by he at the  customhouse where he constant receive transfer or cocket which be in the  nature of certificate for the same and therefore as he do not sell this dung  for ballast it be conceive he be not answerable for what use the same may be  put to after it be ship that the decree be high just and reasonable in not  order the respondent rial to pay the appellant their cost because the bill  charge he with take a wharf and keep it in the nature of a office for ballast  ship and vessel and that he do ballast several ship or vessel within the limit  but the appellant total fail in prove the same although they examine witness  for that purpose beside the appellant by their bill insist upon a right much  large than they have prove videlicet the sole right of ballast all ship and of  sell ballast or material or merchandise to be use as ballast and among many  other thing to the sole right of load lime soapashes brick tile or any other  thing merchandise or commodity whatsoever take from any wharf creek coast bank  or shore upon or adjoin to the river Thames for lastage ballastage or ballast  or load of ship or use instead thereof but have make no proof to support such  a general right and therefore it be hope that the decree will be affirm and  the appeal dismiss with cost but after hear counsel on this appeal it be order  and adjudge that the perpetual injunction decree by the lord commissioner in  this cause shall be extend to restrain the respondent from use any soil or  dung as well as dung mix with soil for ballast any ship or vessel go out of  the river Thames between the bridge of the city of London and the main sea  eastward and it be further order and adjudge that the respondent rial shall  come to a account with the appellant before Mr Holford one of the master of  the court of chancery for all money receive by he or by any other person for  his use of the respondent noble for all the soil or dung sell by he and put on  board any ship or vessel within the limit aforesaid for ballast of any ship or  vessel for the better take of which account the respondent rial be to be  examine upon interrogatory as the say master shall direct and produce all book  and paper of account relate thereto upon oath before the master and what upon  the say account shall appear to have be so receive the respondent rial be to  pay the same to the appellant and it be further order that the master shall  tax the appellant cost of the say suit and that the same when so tax shall be  pay to they by the respondent rial jour vol p brown er p