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could be of no other use to them; yet it was conceived to be most unreasonable, to extend this pretended right of the appellants so far, as to restrain the merchants from using their shipping to the best advantage, and oblige them to ballast their ships with unprofitable merchandize, when they could employ that room to profit and advantage, by using goods and merchandize as ballast. That it could make no legal or reasonable difference, whether such goods and merchandize were dung, or any other valuable commodity; and though the appellants had, by their bill, insisted upon a right of ballasting, and of selling ballast or materials, or merchandize used as ballast, yet it was apprehended no such right was established. That it could never be intended, that the appellants, by virtue of their said office, should restrain any persons from taking in their ships or vesesls within the prescribed limits, any loading of merchandize, under pretence that the same was, or might be used to bal-[392]-last such ship or vessel for if this were so, the taking in iron, lead, or timber, might be deemed ballast; but which the appellants did not venture to insist upon. That dung had been exported as merchandize for many years past, for the manuring of lands and gardens, and great profits had been thereby made; and the very dung sold by Ryall, was sold as merchandize, and as such entered and cleared by him at the custom-house, where he constantly received transfers or cockets, which are in the nature of certificates, for the same; and therefore, as he did not sell this dung for ballast, it was conceived he was not answerable for what use the same might be put to after it was shipped. That the decree was highly just and reasonable, in not ordering the respondent Ryall to pay the appellants their costs; because the bill charged him with taking a wharf, and keeping it in the nature of an office for ballasting ships and vessels, and that he did ballast several ships or vessels within the limits but the appellants totally failed in proving the same, although they examined witnesses for that purpose. Besides, the appellants, by their bill, insisted upon a right much larger than they had proved, viz. the sole right of ballasting all ships, and of selling ballast, or materials, or merchandize to be used as ballast; and among many other things, to the sole right of loading lime, soap-ashes, bricks, tiles, or any other things, merchandize, or commodities whatsoever taken from any wharf, creek, coast, bank, or shore, upon or adjoining to the river Thames, for lastage, ballastage, or ballasting or loading of ships, or used instead thereof; but had made no proof to support such a general right. And therefore it was hoped, that the decree would be affirmed, and the appeal dismissed with costs.

But, after hearing counsel on this appeal, it was ordered and adjudged, that the perpetual injunction decreed by the Lords Commissioners in this cause, should be extended to restrain the respondents from using any soil or dung, as well as dung mixed with soil, for ballasting any ship or vessel going out of the river Thames, between the bridge of the city of London, and the main sea eastward and it was further ordered and adjudged, that the respondent Ryall should come to an account with the appellants before Mr. Holford, one of the Masters of the Court of Chancery, for all monies received by him, or by any other person for his use, of the respondent Noble, for all the soil or dung sold by him, and put on board any ship or vessel within the limits aforesaid, for ballasting of any ships or vessels; for the better taking of which account the respondent. Ryall was to be examined upon interrogatories, as the said Master should direct, and produce all books and papers of account relating thereto, upon oath, before the Master; and what upon the said account should appear to have been so received, the respondent Ryall was to pay the same to the appellants and it was further ordered, that the Master should tax the appellants costs of the said suit and that the same, when so taxed, should be paid to them by the respondent Ryall. (Jour. vol. 23. p. 27.)