Page:The English Reports v1 1900.pdf/295

proved by many witnesses, freeholders or inhabitants of Stokesley, (who, as such, swore against themselves) the prescription for all the inhabitants to grind at the antient mills, and that they had been removed at the request of the inhabitants, and for their ease and benefit, and that they still reaped the benefit of that removal And that Mr. Baron Price was of opinion appellant ought to be relieved, and defendants decreed to grind at the new mills; but the other two Barons held, that by the removal of the mills, the prescription was destroyed in law, and that they could not relieve it in equity; and for that reason dismissed the bill; and though appellant must thereby lose his suit of mills, also ordered him to pay respondents costs; and appellant complained he was aggrieved by the decree, and insisted it ought to be reversed, because the antient usage and prescription had been proved by a multitude of witnesses; and also that the antient mills were removed at the request and for the benefit of the inhabitants; and that therefore, although in strictness of law, the suit and service to the antient mills were destroyed, yet a Court of Equity ought not to permit them to take advantage thereof, but ought to decree them to perform the same suit and service to these mills as of right belonged to the antient mills: And that it was also proved in the cause, that ever since the removing the antient mills, the inhabitants had generally used to grind at the new mills, and that if any person set up any mills, the lord of the manor, when he discovered it, either broke such mills, or compelled the owners to pull them down, or forbear using them; and that foreign millers were frequently disturbed when they came to fetch corn out of the said town to grind: And appellant insisted that such general usage was a presumption and evidence, that there was an agreement by the inhabitants to continue their services to such new mills; and that the inhabitants ought to be decreed to perform such agree-[265]-ment: And that though the Court had not thought fit to relieve appellant, yet under these circumstances there appeared no reason to decree costs against him. (Con. Phipps.)

The respondents on the other hand showed, that they had in their answer denied the antient suit and new agreement, and that issue being joined upon all matters in variance, they were necessitated at a very heavy expence to examine witnesses to every matter in issue: And that the cause was heard at Serjeant's-inn after Trinity term, 1702, and that appellant then waved all matters, save the suit of mill, and his claim, that the tenants and inhabitants should bake every thing bakeable consumed within Stokesley at his bakehouse there; and that on a full hearing, and after great deliberation, the bill was dismissed as to the whole and this decree of dismission respondent insisted ought to be affirmed, because it appeared on appellant's own shewing that the suit to the former mill, if admitted due by prescription (which yet was not sufficiently proved) was by the demolishing of it, and new erection at a great distance, intirely destroyed; and because there was no proof of any time when the supposed agreement, touching demolishing the old, and erecting of the new mills was made; and that a Court of Equity ought not to execute and establish an agreement not produced nor ascertained: And that there appeared no reason to presume any such agreement ever made, inasmuch as at and about the time appellant aimed to assign the new erection of the present mills, and ever since the tenants and inhabitants had ground at pleasure at several adjacent mills, and erected and used private ones in the town; and that the carriers or loaders of the adjacent mills came twice or thrice a week, or oftener, in the day time, to fetch the grist from the tenants and inhabitants without opposition: And that the presumption was against such antient mill, because Stokesley was a large market town of great resort, and the appellant himself stated that there was but one old mill, and it could not be reasonably imagined that all the tenants and inhabitants were immemorially bound to do suit at that mill, which could not serve a fourth part of them: [266] And finally, that the consideration alleged for the supposed agreement wholly failed, since it was fully in proof that the town was still liable to inundation as before, and that the removal of the former mill was for the owner's private conveniency, as the former situation was more exposed to the impetuousness of the river than the new one, and required more timber and materials, and more frequent and expensive repairs. (Wm. Cowper. J. Chesshyre.)