Irish Society v Crommelin

• Jurisdiction: Ireland
• Judgment Date: 14 January 1868
• Date: 14 January 1868
• Court: Common Pleas Division (Ireland)

Com. Pleas.

IRISH SOCIETY

and

CROMMELIN.

C. L. P. Act (Ir.), 1853, sec. 199.

Herbert v. Laughluyn 1 Cr. Ch. 492.

Waddy v. NewtonENR 8 Mod. 275-8.

Challoner v. ThomasENR Yelv. 143.

The King v. Old AlresfordENR 1 T. R. 358, 361.

Marshall v. Ulleswater Co.ENR 3 B & S. 732.

Embarrassing Plaint — Ejectment for the Soil and Bed of a River, with the several Fishery of, in, and within the said River.

IRISH SOCIETY v. CROMMELIN Embarrassing Plaint-Ejectment for the Soil and Bed of a River, with the several Fishery of, in, and within the said River. A Plaint in ejectment claiming " all that close of land covered with water, being the bed and soil of the River Bann, with the several fishery of, in, and within the said river from the high sea unto Lough Neagh," &c., set aside as embarrassing, and. the Plaintiff put to his election either of striking out all refeÂrence to the several fishery, or of amending, so as to show that the ejectment was brought to recover a several fishery disconnected from the property in the soil. Quare, does an ejectment lie for a several fishery ? EJECTMENT claiming " all that close of land. covered with water, being the bed and soil of the River Bann, with the several fishery of, in, and within the said river, from the high sea unto Lough Neagh," &e. Motion on behalf of the Defendant that the Plaint be set aside as embarrassing, or amended. Law, Q. C. (with him Bruce), in support of the motion. The Plaint is embarrassing. It leaves it uncertain whether the Plaintiffs claim the fishery as distinct from, or incident to, the soil, and the Defendant cannot take defence. A defence to an ejectÂment will be taken as a defence for all that is claimed in the eject-, ment, unless expressly limited to part (1) ; and if the Defendant took issue generally, the Plaintiffs might at the trial prove that they were entitled to the bed and soil of the river, and get a judgment against the Defendant that the Plaintiffs should recover the bed and soil, with the fishery (that is, all the premises claimed in the ejectment), though the Defendant was entitled to the several fishery as an incorporeal hereditament, for which alone he could not take defence, as an ejectment does not lie for such a hereditaÂment. The ejectment should be brought for the close of land covered with water. If they claimed a several fishery distinct (1) C. L. P. Act (Ir.), 1853, sec. 199, COMMON LAW SERIES 325 from the ownership of the soil, we could demur or...