The Sun.
London, England, 1828-11-27 00:00:00

VICE CHANCELLOR'S COURT, Nov. 26.

JUDGMENT.--ROWLY.Y V. ECCLES
The VICE-CHANCELLOR, on entering Court, pro-
ceeded to give judgment in this cense. . It was a
case in which the plaintiff had filed a bill, praying
that he might be relieved from a bill of exchange for
26,0001., which he had given to Mr. itichard Gur-
ney. What appeared on evidence was this, that in
1816 the plaintiff was heir-apparent to Sir William
Rowley, a Baronet residing in the county of Suffolk,
and poSsesSed of a large estate, of the value, it was
said, of 10,0001. a year. There was no direct 'evi-
dence that the plaintiff was in embarrassed circum-
stances. At the same time there was no evidence
that a valuable consideration had been given far the
bill; and the fact, therefore, of his having given a
bill of exchange for so large a sum as 26,000/. -was a
circumstance 'from which, in the ordinary transac-
tions of life; it Would be inferred that the plaintiff
was in difficulties. This hill was given in August,
1816 ; and in September, 1817, Mr. Rowley made
an affidavit, that for all bills and securities given by
him to Richard Gurney, he had received valuable
consideration, and that such bills and securities were
not either directly or indirectly connected with play.
This fact had been strongly relied upon; but it was
an occurrence so strange from the ordinary transac-
tions 'of life, that- it only proved to him that Mr.
Rowley. was altogether under the influence of the
party in whose favour that affidavit was made. It
did not distinctly appear in evidence what was the
real nature of the .transaction out of which these
securities arose, because Mr. Gurney, who was
capable of stating on" oath what the real nature
of them was, merely stated when he was examined,
that he employed Bishop to negotiate the bill,
and then proceeded to state circumstances which
occurred while attempts were made to negociate
it. Of the
.real state. of the transactions out of
which the bill 'arose, Mr. Gurney, .who could
have given the desired explanation, was silent.
It did not, however, appear to him to be very mate-
rial what the nature of those transactions was. The
bill of exchange in question clearly fell under that
species of security against which the Court would
relieve the party by whom it had been given. Lord
Talbot, in the case of " Poole and Evans," and sub-
sequently Lord Hardwicke, in the case of " Chester-
field and another," had entered largely into what
they called the policy of the law. in cases of this
description. Lord l'albot—and his Lordship had
been followed by Lord Hardwicke—observed, that
great injury having resulted to old families by the
sale of reversionary interests, it had become the policy
of the nation to put a stop to such mischievous
practices, by setting aside all such bargains, with
young heirs. His Lordship observed, that theßo-;.
man legislators had adopted the same policy for put-
ting a stop to prodigality, and that in this they had
been followed- by all wise legislators in -every civi-
lized country. Now, although the bill ..)f exchange
in the present case was- not, strictly speaking, the
sale of reversionary interest, yet it was much of the
same nature. It' was an expected gift, from Mr.
Rowley, payable after seven .years, and for which
.no consideration had been given. The affidavit of
Mr. Howley was, as he had before observed, in his
wind, a proof that Mr. Rowley had been wholly
antler tbo ;anew of Mr, Richard Gurney. No
person could have seen* this hill without suspecting
that there was something unusual in it, and it ap,
peered that there had been five endorsements on'
the bill.. It was endorsed by Gurney, by two.persons
named Bishop,a person named Mann, and by Becker.
ft w. 40 stated by Eccles that he had largedealings with
Becker, i)y: !Acta this -bill was brought to him in
December, 1817, gpcies yery properly paused be-
fore he had any thingsto do with if; gp4 st this time,
in conformity. with the recommendation of .his pro,
fessional adviser, -Mr. Sweet, refused •to take the
;Ail,. He could not help observing, that in this case
Mr. Sweet iipmred to be- the only person whose
conduct had been 'bi:l;4l4)le and prudent. Eccles
stated, that in the month of 018, he had-
taken this bill from Becker as .a collateral' security
foci e. large debt due to him from Becker.. It ap-
pearett mezefore, that no specific value had been put
upon the bill ; that 4: had been taken merely as a
collateral security, and subject ;-.R, all, risk. It was
said that the bill came into the hanii4 of F,cc}}tes in a
laiy,mercantile way. If so, how then did it happen
that thp indorsement of Becker had been erased from
the bill? itth; .p eared to him to be.an absolute
demonstration that the b).,1,1. did. not come into the
bands of Eccles in a fair and" inerca;;i;;'..e way., Be-.
gl/44es this, Eccles had been told enough retpe,ctirtr;
the IA excite suspicion, and Eccles having taken
it under ,suck cirev4stAnces, must suffer all the con-
sequences of his imprt:adang,e, In his opinion there
}vas sufficient evidence to show t'iat ixji
.bi!l was one
wiria4 ,the policy of the law would not alln,vf:gpfrs
to keep. tf must be given up to the plaintiff, and
so far he granted the ,rayer of the bill against Eccles
with costs. As to the other 34,cties, as they did not
appear, lie must make against thdni •4e common
decree nisi.
Mr. TEED and Mr..,gI.TGE attempted to address
tbe Court. The piton
.of their observations ap-
peared to he, that the plaintiff lityjng, ,by hisirfflnll-
- conduct, been the cause of the suit, the Court
ought, if it ordered the big to be Oven pp, to visit
the plaintiff with the costs.
The -VICE-CHANCELLOR. observed, that such oh.
seryttijpris, after the judgment of the Court had been
given, wee, ;.Jtc.tge,:ther irregular, and that he. could
not listen to - them. • ii 1:;s zt,rdgment Was not satis-
factory, it might be submitted to ariztlw tribunal.
VATSON AND OTHF.RS, RXECUTOM OF SIMS, -

aITF. OF WELLINGTON AND °TILERS.

This was an app,l,i,rion for the payment
_of
44,201/. Os. 7d. into Court in itkfo pause, being part
of the share of the late Marquis of 'it
-lasting, p): the
Deccan prize-money, and which the Duke of W.ei-
lington and Mr. Arbuthnot, as the trustees of the
ride-money, admitted to be in the hands of the East
ndia Campay, subject to their order,' and' the
trustees were ar,l in regard thereto.as
the Court should direct. Tho.P4o;. '?!-(3-91.ed the
44,20 U. OS. 7d. to be Paid in.

COURT OF.KING'S BENCH, Nov. 26.

Lam TrciTIRDEN sat at Nisi 'Prins for' about an
hour thif4 morning, an44isi2.,?sei of undefended causes.
. ,

At 11 o'clock the names of the jury zwg,..pgyecl.
over in the case of the

TRIAL AT RAH.

R"" 41REIITON.-110F. V. 131tENTON.--T►IE

BRENTON. •
The ATTORNEY-GENET!AL (6'll ,0,-,1?.a7(1-said:he
understood that his Learned Ft ietitt.Nr.'l3rotikharu
expe4e2. that he (the Attorney..Cie:feral) 'should:
reply to ihe plainti4"s case before hePlr..Brough:!nt).
again addressed the jary. ti.i.;,c4se had been con=
ducted :as cases ordinarily ivere.,..lie:sliOu,ld:hayi,hi4
po -objection to wave his
toiriejf2:o;o,2 r'il appearing on'trb'eliartioe'the''crOwn
in atrial; at,bar, lte
,nndoubtalY.
the case had been conducted+ tintisind,
'

manner, he insisted on his privilege of having the
last reply.
Sir J. SCARLETT observed, that in all Crown
prosecutions in •the Court of Exchequer, the Attot.::
ney-General was beard last in reply.
Lord TENTElia*—But in those cases the King
is a pally on the record.
Sir J. SCARLETT—The interest of the Crown Is
the same in cases where the Attorney-General ap-
pears to defend the interests of the public; and in
those cases he has the right of ultimate reply.
The ATTORNEY-GENERAL observed, that the
trial at bar in the present case had been granted .on
his statement that the interests of the Crown were
involved in the proceedings, and that he was in.
strncted to defend the case on the part of the Crown;
so that the King was the real .defendant in this case,
though not a party on the record; and therefore he
(the Attorney-General) insisted on his privilege of
reply after the plaintiff's counsel had been,heard.
Lord TENTERDEN (after conferring for a few
minutes with the other Judges) said, there being no
instance pointed out to us in which the Attorney-
General has been allowed the lastfeply in a case
like the present, we think the safer Csitirse will be to
let this case proceed in the ordinary.'way.
The ATTORNEY-GENERAL then proceeded to re-
ply to the plaintiff's case. The plaintiff's proposi-
tion was, that he, being the possessor of the surface •
of the soil where the minerals in question had been
dug up, had a right to say to the lessees under the
Crown, " What you have dug beneatieN surface
belongs to me." This, he believed, w the plain
tiff's proposition ; though his case had been ma-
naged in such a manner, and his evidence kept hack
like" deferred stock," as it was called in the city,
that until yesterday it was very difficult to kntiw or
Conjecture what hiS case really was. The Propo-
sition on the part of the Crown' however, was; that
the minerals in question having been dug up under a
superficies of land called a conventionary tenement,
the plaintiff, as the tenant, had no right to any thing

found beneath the surface. It was 'unnecessary for
him (the Attorney-General) to enter into a definition
of the words " conventionary tenement ;" it was suf-
ficient for him to Say, that the estate of which the
plaintiff was possessed was less than a freehold,- and
being so, the tenant could claim nothing that was
not incident to ,the tenement, qua tenement, but
must make out his right, if he had, any, by some ex-
ternal and extrinsic title, lie (the Attorney-Gene-

nil) had adduced evideNce;to'show that the same
identical tenement, called " Nantz Le Mellon," of
which the plaintiff was now. in possession, consti-
tuted the locus in quo in which the minerals in ques-
tion were taken—that that same tenement, by the
same name and description, and the incidents,
character, and qualities belonging to it, as recorded in
the assession rolls, caption of seizin, and other an-
cient documents, was, in the-year 1774, surrendered
to a person of the name of Simmonds, who after-
wards surrendered it to. Mr. Joshua Rowe, and who
had acknowledged on the court-roll that he, took it
nt that time with all the incidents and qualities
which belonged to it 500 years before. This was
the case which he (the Attorney-General) had made
.out on the part of the Crown. His Learned Friend
had, indeed, treated the assession-rolls as documents
of little or no authority, as mere albums in which
the stewards wrote nonsense, like ladies who in
those books recorded the passing events of the day.
(Laughter.) He saw, by the countenances of their
Lordships, that they thought he was not treating
ladies' albums with due respect, but—
Lord TENTERDEN—You coupled the ladies and
nonsense, Mr. Attorney.
The ATTORNEY-GENERAL begged parcloia of the
ladies, and he would remind such of them as did
him the honour of attending the discussions in this
case, that it frequently happened to lawyers in that

Court, as it did to -meni6ers of Parliament else-

where, that they bad occasion to apologise for un-
guarded expressions which were used unintentionally
in the heat of debate. (Great laughter.) He
would now advert to the principal documentary evi-
dence which he had adduced on the part of the de-
fendant; and he would first of all mention the Par-
liamentary Survey : in which document it was stated
" that there ought to be kept in the manors in ques-
tion al) assession-court every seven years, to which
the tenants'were bound• to repair, there to enter
their claims, take their tenements, and renew their
holdings; not that their old holdings were to deter-
mine at the expiration orseven years, but because

divers advantages did and might accrue to the lord
by the renewals." This was the language as
recorded in the Parliamentary Survey; and Sim-
nionds under whom Mr. Joshua Rowe claimed,
took the tenement in question subject to all Jill?)
incidents as recorded in this ancient document.—
He took it "to hold to him and his heirs from
seven years to seven years, according to the cus-
JRn of the manor." The tenants undoubtedly
had an indafg4sillle right to renew; but their
right to renew from seven year:, to seven years
did not give them freehold estates. They. took
nothing more than a' copyhold or a leasehold estate,
with a perpetual right of renewal; and this was evi-,
flared by the fact that rents, heriots., and fines
were payable , Rad also that the tenants were to
perform certain services, and 4o fealty to the lord,
and also to find pledges (sureties) for reparations and
payment of their rent. These were the incidents
which belonged to this species of estate several cen-
twiez, agp, and they had existed from the earliest
times to, the pre;enr rnment, The particular species.
of land which was called duchy or prince's land was
well known in Cornwall, and was as easily distin-
guished•from that which was called free land as a
field of oats was distinguished from a field of barley
sn Hei:tfordOire or any other county, or asa male was
di,tinguishable from a female. He (the Attorney-
General) had shown that the Duke of Cfnwall had
a right to take •R toll of tin ; and with respect to
copper, he had proved by the leases granted from a
very earli periridohat that mineral had been taken
and enjoyed by personi;4l;§ritirt from those who oc-
cupied the surface of the land. hwo fapt
known in. Cornwall, that copper minerals, as well as
rthoSe of tin, had been always claimed by the Crown.
he eire4nitqnpe.became notorious so long ago as
1662, %Olen proceedings werp instituted in the
Court of Exchequer; and yet from Olt pieriod, fo
thp rime when Mr: Joshua Rowe set up his ciuim,
no person had 7:eptired to come forward and litigate
the question,-wNci had ppw been so long under
floiscuicsinp, at the •3n4ance 9f:thts same iffp. Jpshua
Rowe. Th notoriety of the claipi of the
Duke of Cornwall to the minerals in iine§nnn
not only prOduced no' litigant •to contest the que;-;
tion, but the tenants and owners of the land had,
for a long series of years, confirmed the right of the
'crown, • kfty p,41-mitting its lessees to work the mines
to.a considerable eibor, ,-014 tg pi:t, into their own
pockets' the' valuable products. 'ThA they tvo„lil
not have done had they not been fully satisfied that
the-Croun had the power of granting the leases.
.f(e:had he.9.rd lawyers talk of strong and violent pm-.
stimptions.'LOrd Colig himself had alluded tethem ;
but that the Crown, who was entitieti to all other
minerals, had no right to the minerals of copper, 'gasnot only the most strong and violent, but the most
tempestuous presumption
which he, or he believed;
la;„.7,cr, hall ever heard of. The learned
gentleman concliirled ig'seriii-tg, r):1 proof
-both of title and usage, was onthe'parlthe
Crown, and expressed his opinion, ihat•M this uni-
lateral state of the evidence, the jury could not. do
otherwise thanteturn a verdict for the Crown.

741,1329tmniut then proceeded to address the
Jnry. The questtoli tP fiilpwq eves, 74 !19q
aright to the minerals contained m the estatp
question ?" His Learned Friend had attempted to
show that the tenants had not the tight, because
thq did not hold that kind of interest to Which the
law. annexed 04.; nt;oyment of property under
ground... It would be.' his (Mr..4roughaTX3) duty,
,on the . other hand, to eticleavabr to satisfy; the
Jury that, from the evidence in the atiSe.,, there
Were clear and unequivocal indications of the tenants
•i.,o;sessing that kind of interest in the soil,ivliicli his
Tearned,Frieint would deny them. -The-:Learned
Gentleman' then proceeded to comment On

dence at considerable length, but in so close and
technical a manner, that it would be useless to at-
tempt to touch upon more than a few striking points.
The circumstance of rents- of assize being' paid by
the conventional tenants and entered in the accounts
Of the steward of the Duke of Cornwall, he' consi•
dered to be material for the plaintiff's case, inasmuch
as such a proceeding was wholly inconsistent with a
leasehold tenure. Another important fact was, the fix-
edness,of the rents paid by these tenants. If they
had been leasehold tenants, as was alleged, could it be
supposed that the -Crown would have allowed them
to continue paying for four or five centuries the
same rent which they paid in the reign of Edward
111., although the value of land had increased more
than fortyfold ? Yet this was the case; for the
whole rents of the conventional tenants, at the pre-
sent day, did not amount to more than 26/., which
was the utmost sum they composed in the reign of
Edward 111. Therefore, both legally on the account
of the nature of the rent of assize, and in
point of fact on account of the rent having
continued fixed, he was entitled to maintain that
the holdings never could have been of a leasehold
tenure. He next adverted to the assession-
courts, which he considered, both in their consti-
tution and practice, as the means by which the
'Crown, or the individual possessing the duchy for
the time being, proposed to contravene or usurp the
right of the indiViduals possessing property in the
duchy. It was important to consider at what
period those. courts were. established. It was at a
period when violent attempts might be expected to
be made- upon the rights and property of individuals,
by those who were in possession of power. The
establishment of the assession courts was coincident
with the events which disfigured and disgraced the
last year of the reign of tdward 11., and the first
years of the reign of Edward 111. Who was the
person who had an interest 'in the duchy revenues
at that time ? It was Isabella, who had invaded
the country at the head of foreign troops, had pro-
moted rebellion, • had become connected- with one
who had murdered her husband in a manner too
shocking to be even alluded to, who had committed
all that was infamous, outrageous, and violent, ex-
cept the last act of indecorum, marrying with her
husband's murderer. It was under her authority,
and fur her benefit—When all law bad ceased to
exist---when the country from east to west, and from
north to south, was one universal scene of anarchy
and disorder—when Mortimer was ruling the king-
dom in the infancy of Edward 111., that the first
assession court was held for the purpose of extend-
ing the Queen's rights, and laying the foundation
for the claims subsequently advanced. With re-
spect, however, to the rolls of the assession courts,
he thought that, the object for which they were pro-
duced had not been' attained. It was clear that the

tenants did not take their titles in those courts, and
that the title by which they held was the copy of a
roll of another court—namely, the manor court,
presented to them by the steward in the as.
sessional court. What right had the lord
to say, that the proceedings in the assession courts
made their tenure leasehold, when the roll of the
manor declared that they held to them and their
heirs for ever ? Considerable importance had been
attached to the Parliamentary survey; but he
would not have the jury altogether to believe that all
it contained was gospel. It had been supposed to be
very accurate, yet when compared with the facts as
they now existed, that accuracy had been found
wanting. The Learned Counsel proceeded to con-
tend, at very considerable length, that if the tenants
in the manor of Tewington had a right to a renewal
of their holdings fiom seven years to seven years in
perpetuity, their holding was in its interest a fee.
His Learned Friends had, argued that their holding
could not be freehold, because it was held by copy;
but Lord Coke had shown that freehold could be so
held. - Here the Learned Counsel quoted the diction
of Lord Coke, with his reasons for it. His Learned
Friend had also said, that it could not be a freehold
because it passed by surrender, and not by livery or
feofment ; but there was a case reported in Coke—
he meant the case of" Hughes and Harris"7—which
proved the contrary. His Learned Friend also
said, that it could not be freehold because it
was held t.y . payment of rent ; • but there
were many manors in which the freeholders held their

tenements by payment of a quit rent. Then his
Learned Friend relied much on the tenants of the
manor of Tewington paying a heriot to the lord on
the death of the tenant; but it was notorious to
every lawyer that heriot was not inconsistent with
freehold. He. then called the attention of the jury
to the, proof given by the defendants of the usage
of the tenants under their rights, according to the
documentary evidence. Now that evidence was
liable to two observations. The first observation
was, that a vast part of it came from the Duke's
agents, who, if they had not themselves a direct in-
terest, had a fellow-feeling with the Duke,- who
had a direct interest in restricting the rights of the ;
an tenants • dit was rather a hard thing that he was
, •
to be called upon to take the doeuments drawn up
by the stewards of the Duke's manors as evidence
to support the extension of the lord's rights. The
second observation was, that a great deal of his
Learned Friend's evidence; went . to proVe that
thewhich hedidfCornwall not mean
h 44 yT
melanto deny--namely,
gr
y-Inagmoely, that
and
tensive rights, which were by no means in
conflict with the rights of the Duke's tenants.—
The Learned Counsel proceeded to shoW,• from a
review of ' the evidence which he had produCed on
behalf of the plaintiff, that there never had been any
uninterrupted possession of the Minerals in the Duke
of Cornwall in the assessional manors, and called the
particular attention of thejury.to the resistance which
Miss Smith had made to such 'a claim,. when at-
tempted to be enforced on her property.. It ap-
peared that when a shaft was driven into her tene-
meat, she let off a quantity of water into the adit and
drowned the tools of all the workmen. in conplq-
sion he insisted that
.everrif there had'bepu two.. or

. .
three acts of. enjoyment by_ the Dtifce of Cornwall,
inepasistpot mit!) the right of the tenants of the
seventeen assessionary manors of the duchy, and 'of
their 200,000 or 300,000 inhabitants; nay, if there
had even been 30 or 40 acts of such a nature, not
within the last six or eight years, but within the five
centuries which had elapsed sieve the period of legal
memory, a jury ought not, without the most clear
and satisfactory and decisive evidence, to.give a vex-
diet for the defendants, which would reduce all pro-
lerty within thp assessionary matters to be rperp
easehold property, held at the wilt of Op Pitke of
Co rnwitil, • • •
The L 01213 CHIEF JUSTICE then proceeded to sum
up the case to the Jury. If it had appeared to him
that the question which they were empanelled to de-
cide involved any point of doubt or difficulty, so 11§
to eefinireiton hick any INngihen ct dßtrii) of the evil
deuce, or any tedious explanation of the law, he
should have thomght it right to request .them to at-
tend in Court 'again to-morrow, in order that they
might bring to the consideration of it 'recruited

ilrength and yisuu.r. But the question was now re-
duced'oa such aemy coin ass that the legal effect
of the evidence might be stated to witfuipt
entering into it at any great'length. The (petition
in this ea-se is, whether the Duke of Cornwall, or the

.
Feyngr of 6,1 F,q .1!. the manor of .Tewington, is Ei.:
taw. to the minerals; and bOs.aptitt. the question
,narrowed itself, for it merely applied to the minerals
when brought to the surf.iee, and the Jury had no
question before them as to the right to dig on the

surface to search for minerals below it. • It .rpigiq
tliff! 1,-•004 mi,o4
in .10F44. and yet 01;4 lie fatittl, not sqms the
land to sink a shaft ivithout making terms with his

tenant. Indeed, he knew that there were in the
north of England feveral mines held under copyhold
tenure, in %yllich the lord had a right to the minerals,
Put had no right to enter on the land to search fOr
them. Thus; as the lord ponid not colt the surface
to take
.the minerals, Tint the tenant take the
minerals after 11044 `cut 019 sulfa e, the thinerals
must remain untaken until 'some compromise were
'finale' het-Weep the 190 and the tenant. The Ties-
tion ip 'the ''pirlfa case, as he had before
,stated