be entitled to hold the same as free fishers, on payment of such annual rents as are hereinafter mentioned: And whereas it hath been contracted and agreed by and between the said parties to these presents. that, for the several considerations hereinafter mentioned, a division shall be made in the rights of the said manor, royalty, fishery, hereditaments, and premises, and to that end that the said manor and all the lands, grounds, quit-rents, and manor rights belonging thereto (except as hereinafter is mentioned) shall be the property of the said Edward Foad, John Nutt, and Stephen Salisbury, their heirs and assigns, and that all the rights of the lord of the said manor in the said fishery, and the ground and soil thereof from the south and south-east sides of the sea-beach (which from time to time have been considered as the land boundaries of the said fishery), and in the customary payments usually made to the lord of the said manor for or on account of the anchorage of any ship or vessel, or for the landing of any goods or merchandise, or for the admission of freemen, or other payments for the regulation of the freemen or fishery, and all other payments whatsoever at the water-court of free dredgers there within the jurisdiction of the said manor, and other such like payments, and all forfeitures, articles, and things which of right belong to and are the property of the lord of the said manor by reason of any wrecks of the sea or such like rights and *forfeitures arising within the limits of the said sea-beach, shall be the property of the said Thomas Foord, his heirs and assigns."

*391]

"All that the said manor, and the said messuages, lands, quit-rents, rights, royalties, liberties, privileges, hereditaments, and all and sin gular other the said premises hereby or mentioned or intended to be hereby granted and released, with their and every of their appurte nances, save and except the said royalty of fishery or oyster-dredging, and the right of taking oysters and other fish within the said manor, and the ground and soil of the said fishery, and also the customary payments usually and of right made to the lord of the said manor for or on account of the anchorage of any ship or vessel or for the landing of merchandise within the said manor, or for the admission of freemen, or other payments for the regulation of the freemen and fishery there, and all other payments whatsoever at the water-court of free dredgers there, and all such like payments, and all manner of forfeitures, articles, and things which of right belong and are the property of the lord of the said manor by reason of any wrecks of the sea or other such like rights and forfeitures arising within the limits of the sea-beach aforesaid," were limited, as to one third to Edward Foad in fee, as to one other third to John Nutt in fee, and as to the remaining third to Stephen Salisbury in fee.

And "all the said royalty of fishery or oyster-dredging, and the right of taking oysters and other fish within the said manor, and all the ground and soil of the said fishery, extending as hereinafter is men. tioned, and also the customary payments usually and of right made to the lord of the said manor for or on account of the anchorage of any ship or vessel, or for the landing of any goods or merchandise within the said *manor, or for the admission of freemen, or other payments for *392] the regulation of the freemen and fishery there, and all other payments whatsoever at the water-court of free dredgers there, and all

such like payments, and all manner of forfeitures, articles, and things which of right belong unto and are the property of the lord of the said manor by reason of any wrecks of the sea or other such like rights and forfeitures arising within the limits of the sea-beach aforesaid, and all remedies for the recovery of the said premises respectively."-were limited to the said Thomas Foord, in fee.

The deed of release contains the following clauses:

"And, in order to ascertain the boundary of the said oyster-fishery, and how far the right of the said Thomas Foord, his heirs and assigns, therein shall extend, it is expressly agreed by and between the said Edward Foad, John Nutt, Stephen Salisbury, and Thomas Foord, for themselves severally and respectively, and for their several and respective heirs and assigns, that from henceforth the south and southeast sides of the sea-beach of Whitstable aforesaid, as the same is and hereafter shall be thrown up by the sea from time to time, shall be considered and taken as the boundary between the lands of them the said Edward Foad, John Nutt, and Stephen Salisbury, their heirs and assigns, and the lands of the said Thomas Foord, his heirs and assigns; and that such sea-beach and all the lands and grounds from thence into the sea so far as the said fishery extends, whether the same be more or less than the quantity of land now belonging to the said fishery, and all payments or dues for the anchorage of any ships or vessels or for the landing of any goods or merchandise there, and for the admission of freemen, and other payments for the regulation of the freemen and fishery, and all other payments whatsoever at the water-courts or courts of dredging there, and all wrecks of the sea and other [*393 manor rights and forfeitures there found, shall from henceforth be held and enjoyed by and be the property of the said Thomas Foord, his heirs and assigns, subject to the right of the said Company of dredgers in the said fishery:

"And, the better to effect the purpose of the now reciting indenture, the said Edward Foad, John Nutt, and Stephen Salisbury appointed the said Thomas Foord, his heirs and assigns, their attorney and attorneys, and did thereby give unto the said Thomas Foord, his heirs and assigns, power to appoint a steward or stewards and waterbailiff or water-bailiffs, or other usual officers of the said fishery, and to summon and hold all such water-courts or courts of dredging as should be necessary to be held for admitting freemen to participate in the rights of the said fishery with the present and future freemen thereof, and to impannel and swear any jury at such courts, and make all such by-laws and orders for better regulating the said Company of dredgers as should be thought expedient and for the advantage of the Company; and also to ask, demand, collect, and receive from all and every person and persons whomsoever all customary payments or dues for the anchorage of any ships or vessels, or for the landing of any goods or merchandise within the said manor, and for the admission of freemen, and other payments for the regulation of the freemen at the said courts, and all other dues, wrecks of the sea, and such like manor rights and forfeitures which should be there found, and to detain and keep the same for the use of the said Thomas Foord, his heirs and assigns, and upon receipt thereof to give acquittances, &c., and, in cases of refusal, to bring actions," &c.

By the said Act 33 G. 3, c. 42, the said free fishers *and

*394] dredgers of Whitstable were incorporated. They have ever

since carried on the fishery there to a great extent.

By indentures of lease and release bearing date respectively the 4th and 5th of June, 1793, and made between the said Thomas Foord of the one part, and the said Company of Free Fishers and Dredgers of Whitstable, in the said county of Kent, of the other part,-after reciting in the said indenture of release the herein before abstracted indentures of the 11th and 12th October, 1791, a mortgage by the said Edward Foad to George Rigden, and the reconveyance by the said George Rigden, and the said abstracted indentures of the 24th and 25th of October, 1792,-and reciting that the purchase so made by the said Thomas Foord of the said royalty, fishery, and hereditaments, was by him contracted for on the part of the Company of free fishers and dredgers aforesaid, and the sums of 8007. unto the said Edward Foad, and of 15301. unto the said James Smith, making 22301, which were the consideration-moneys in the said indenture of release of the 25th October, 1792, mentioned to have been paid by the said Thomas Foord for the purchase of the said premises, were the moneys of the said Company, and no part thereof of the said Thomas Foord, which he did thereby acknowledge, it was witnessed, that, in consideration of the premises, and of 10s., he the said Thomas Foord did grant, release, and confirm unto the said Company of free fishers and dredgers (in their actual possession, &c.), and to their successors and assigns, All that the royalty of fishery or oyster-dredging, and the right of taking oysters and other fish within the manor of Whitstable, in the said county of Kent, and the ground and soil of the said fishery, *395] extending as therein before was mentioned; and also the *customary payments usually and of right made to the lord of the said manor for or on account of the anchorage of any ship or vessel, or the landing of goods or merchandise within the said mancr, or for the admission of freemen, or other payments for the regulation of the freemen and fishery there, and all other payments whatsoever at the water-court of free dredgers there, and all such like payments, and all and all manner of forfeitures, articles, and things which of right belonged unto and were the property of the lord of the said manor by reason of the wrecks of the sea or other such like rights and forfeitures arising within the limits of the sea-beach aforesaid, and all and singular other the premises which in and by the said recited indentures of lease and release of the 24th and 25th of October, 1792, became vested in the said Thomas Foord, his heirs and assigns, or in any person or persons whomsoever in trust for him and them; and all the reversion, &c.; and all the estate, &c.; and all deeds, &c.,-To hold the same unto and to the use of the said Company of free fishers and dredgers, their successors and assigns, for ever."

The defendant was the owner of a vessel called the Amoret; and, on the 29th of September, 1860, the said vessel cast anchor at Whit stable on the land covered by the water of the sea, and below low-water mark; but the spot where the said vessel so anchored was and is within. that portion of the manor of Whitstable and fishery aforesaid which is claimed by the plaintiffs under the above deeds, and under the cir cumstances herein stated, as their soil and freehold.

The plaintiffs' oyster-beds extend from the shore for about two miles out to sea; and the said vessel was anchored about half a mile from the shore, upon part of the land claimed by the said Company, but not then used as oyster-beds.

[*396 The plaintiffs' claim was for 1s. for the anchoring on the soil which they allege to be theirs.

The plaintiffs gave evidence to prove, and the jury found, that, from 1775 continually down to the present time, they and those under whom they derived title had from time to time claimed as of right to take, and had taken, the sum of 1s. from vessels casting anchor within that portion of the manor on which the defendant's vessel had cast anchor, and that they claimed to take it as a customary payment for such use of the soil.

The defendant at the time in question resided and dwelt within the Cinque Ports at Whitstable,--Whitstable being part of the port of Faversham, which is a limb of Dover. The said vessel at the time she anchored as aforesaid was trading to Whitstable.

The charter of Edward the 4th, in reference to the exemption of the Cinque Ports was proved and put in evidence at trial by the defendant: See Jeake's Charters of the Cinque Ports.

On the part of the defendant, it was submitted that he was entitled to the verdict, on the following grounds,-first, that the soil of the sea where his vessel was anchored, being below low-water mark, was vested by law in the Crown, and could not be held by a subject,— secondly, that the Company had no right to claim any payment for such anchorage,-thirdly, that, if ever the right to demand a payment for anchorage was vested in the lord of the manor of Whitstable, that right was extinguished and destroyed when the manor was divided. into two parts (which for distinction were at the trial called respecttively the terrestrial and the marine manor),-fourthly, that, [*397 if the right was not so extinguished and destroyed, the owner of the terrestrial portion of the manor should have been joined as coplaintiff,-fifthly, that the defendant was under the Cinque Ports charter proved at the trial exempt from the said claim for anchorage. Under the direction of the learned Judge, the jury found for the plaintiffs, the several points of law above mentioned being reserved.

The second was an action brought by the plaintiff (the brother of the defendant in the former case) for the conversion by the defendants (the officers and servants of the plaintiffs in the former action) of an iron chain belonging to the plaintiff, which was seized by the defendants as a distress for the anchorage or groundage claimed by the Company under the circumstances detailed in the statement of the former

case.

The defendants pleaded,-first, not guilty,-secondly, that the goods were not the plaintiff's,-thirdly, that, long before and at the time of the conversion of the said goods in the declaration mentioned, the Company of Free Fishers and Dredgers of Whitstable, in the county of Kent, were, and still are, seised in their demesne as of fee of and in the ground and soil of a certain fishery in the said county of Kent, to wit, from the south and south-east sides of the sea-beach at Whitstable, in the said county, as the same is thrown up by the sea from time to time, and the sea-beach, and all the lands and grounds from thence

into the sea as far as the said fishery extends: and the said Whitstable Company, and all those whose estates they now have, and at the same time when, &c., had, of and in the said ground and soil of the said *398] *fishery, with the appurtenances, from time whereof the memory of man is not to the contrary, have had, received, and taken from every ship or vessel arriving and anchoring on the said ground and soil of the said Company, a certain reasonable toll or duty by way of anchorage for the said vessel, and for coming and anchoring on the said ground and soil of the said Company; and, when and as often as the said toll or duty hath been and remained unpaid after reasonable request and demand thereof made by the owners and proprietors of the said ground and soil for the time being, from time to time, from time whereof the memory of man runneth not to the contrary, have used and been accustomed as of right to seize and take a distress or pledge from and off the said vessel as and for and by way of security for and in order to obtain payment of the said toll or duty: that, before and at the time of the said conversion in the declaration mentioned, a certain vessel of the plaintiff had arrived and come into and upon the said ground and soil of the said Company, and was then anchored thereon, and was then liable to pay the said reasonable toll for such anchorage as aforesaid, to wit, the sum of 1s.: that the plaintiff, having had notice of the premises, and being requested to pay the amount of the said reasonable toll for anchorage of his said vessel, neglected and refused so to do; whereupon the defendant James Waters, then being the water-bailiff of the said Whitstable Company, and acting as such, and in the execution of the commands and by the authority of the said Company, and the said other defendants as the servants of and aiding and assisting the said defendant James Waters in his said duty, and in order to obtain payment of the said toll, and as and for a reasonable distress or pledge for the said toll, *seized *399] and took the said goods of the plaintiff in the declaration men

tioned, to wit, the said iron chain, the same being a reasonable distress in that behalf, and then being in and upon the said vessel of the plaintiff so then anchored on the said ground and soil of the said Company, and kept possession of the same for the purpose aforesaid until the said toll should be paid, and which never has been paid; and which was the said conversion and depriving the plaintiff of his said goods in the declaration mentioned. Issue thereon.

This cause came on to be tried immediately after the former, the evidence in which it was agreed should be read.

On the part of the plaintiff, it was contended that the Company were not entitled to the right claimed, and were not entitled to distrain, on the following grounds,-first, that the soil of the sea where the plaintiff's vessel was anchored, being below low-water mark, was vested by law in the Crown, and could not be held by a subject,secondly, that the Company had no right to claim any such payment for such anchorage,--thirdly, that if ever the right to demand a payment for anchorage was vested in the lord of the manor of Whitstable, that right was extinguished and destroyed when the manor was divided as aforesaid into two parts, the terrestrial and the marine,-fourthly, that, if the right was not so extinguished and destroyed, the owner of the terrestrial portion of the manor should have joined in author