Star.
London, England, 1828-11-27 00:00:00

LAW IN fELISGENCE.

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VICE-CHANCELLOR'S COURT, Nov. 26.
WATSON AND OTHENS, IXECDTDDI 01 MIMS. 4041N0T
"1063,114 Mitt OW wIMLINOTOW AND OTHIRS. '
This was an application for the payment of the sum
of 44.2011. Os. 7J—into Court in this Calls!, being part
of the Aare of the late Marquis of Hastings t► the
Deccan prize money, and which the Duke of Welling-
ton and Mr. Arbuthnot, as the trustees of the prize-
money, admitted ts be in the hands of the East India
Company, subject to their order, and the trustees were
*Ming to act in regard thereto as the Court should
direct. In. tl.e year 1810, the Marquis and Marchioness
of Hastings, together with the late Mr. Ridge (their
surety), lexecuted a bond to Mr. Sims to secure 4,9.0 L
for money lent to the Martinis ; the bond was never
paid. Orr the6th of February, 1826. after the Marqtris
had, by his Majesty's warrant, become entitled to a
share of the prise-money, the Marquis gave Mr. Allen
(the solicitor for the executors of Mr. Sims) an order,
written and signed by himself, for the payment of the
bond and interest out of his share of the Deccan pi izo-
money ; but when the Money become payable, it sr
pealed that the Marquis. of Hastings had previously
granted mortgages on his own share, therefore it be
came nrcessary to institute a suit to investigate the
claim. The Court ordered the 44,2011. Os. 7d. to b•e,l
paid in.
COURT OF ICING'S BENCH, Wasernarres, Nov. 26.
Lord TINTLIADIIN sat t Nisi Prius for about an hour
tslis morning, and disposed of undefended cau,el.
At eleven o'clock the names of the Jury were called
over in the case of

ROWE V. BRENTON
The ATTORNEY Cimino'. then rose, and said he un•
•der.tood that his Learned Friend Mr. Brougham ex-
pected that he (he Attorney General) should reply '
to.the plait:tiff, case heime he (Mr. Brougham) again
addressed the Jury. If this case had been conducted as,
cases ordinarly were, he should have had no objection'
to wave his privilege, which, as Awn ney-General ap-
pearing on the part of the Crown in a trial at bar, he
undoubtedly possessed; but as the cue had been et n-
ducted in a very unnsual manner, he Lsitted on
.his
privilege of baring the last reply.
Mr. BROUGHAM was not aware that• the plaintiff':
case had been conducted in an unusual manner, or that
the Att.irney-General possesied say such privilege as
that which he now claimed.
Lord Tewraarria—ls there any. precedent on the'
subject ?
The ATTonnaz-Gettenal. was aware- of 'lone; but
he appreben.ted the general r ule to bet in alt Calls !lime
proceedings were carried on by the ClOllll, the King
being a party on the record, or in Wills at bar, where
the Crown was interested in the proceedings, that the
Attorney-General had the right of ultimate teply, whe-
ther he called witnesses for the defendant or not.
Lord Tanteanin—The King cannot bea defendant
in a civilaction ; but be has a tight to appear and claim
a t sal at the bar in all cases alt re the interests r f the
Crown ate concerned.
Sir J. SCARLITT Observed, that in all Crown pose-
cutions in the Court i.f Exchequer, the Attorney-General
was heard last in reply.
Lord TENTERDEN—Ba in those cases the King is a
party on the record.
Sir J. Scattirri.—.The interest of tl e .0 own is the
same in cases where the Attorney General appears to
defend the interests of the public ; and in those cases
be has the right of ultimate reply. . .
The ATTORNEY GENERAL obs% tvel, that the trial at
bar in the psese. t case had been granted on his state,
mem that the interests of the Crown oft re involved in
the pioceediogs, and that he was instructed to detour'
the case on the part of the Crown; so that the King
was the real dsf 'Wan in' this case. ihou,ll not a pasts
on the record; and Cher fore he (the Artorrey•General)'
insisted on his privilege of telly , after the plaintiff's
Counsel had been heard.
Lord TztrranDEN wished that the Au %rney•General
had meotioned thapo nt last night, i 0 order t .et the
Judges might have had air p itunity of consioesing it.
Mr. BROUGHAM assured the Court th-t he fn .d been
taken quite by surprise.
Lord TESTEADEN tier conferring for a few minutes
with the other Judge_) said, these being no instanse
pointe I out to us i.n. which the Attorney. General has
been allowed the last reply in a case like the present, we
think the safer course will be to let this case proceed in
the ordinary way.
Tie ATTORNEY GENERAL then proceeded to reply to
,he plaintiff's care. lie had thought it right to prefer
his claim t-t be heard alter his Learned Friend had ad-
dressed them (the Jury) though there never r ass case
in wt.ich it was less material for him to insist or. his pri•
vilege than the present. He would cow call their at-
rei min to the real Eo nt in litigation in this case, a. d
to the facts pro. ed on one tide and on the other ; ai d
he would •do so with as much brevity and pet spicuity
as be could, having to trayel through a mass of evi.
dence which had been extended f om the time of Edw. I.
to that of George 111. The plaintiff's rroposition was,
that he, being the
.possessor cf the surface of, the soil
where the minerals in question had been dug up, hada
right to.say to the lessees tinder the Crtorn" What
yitu have dug beneath this surface belongs to me.'
►This, he believed. was 0e , plaintiff's propolition;
though his case had been managed in such a man.
Der, and his evidence kept back like "r deferred
stock," as it was called in the city,
.that until es-
terday it was vet y difficult to know nr conj, ctuie
what his case really was. The proposition on the
part of the Crown, however, was, that the minerals
in qurstion having been dog op under a suited( ies of
land called a conventionary tenement, the plaintiff, as
the tenant. bad no right to any thing found beneath the
surface. It was unnecessary for him (the Attorney
General) to enter into a definition of the word " con•
ventionary tenement;' it was sufficient 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 tene-
ment, qua tenement, but must make out his right,
:it he had any, by some external and extrinsic title.
Me (the. Attorney General). had adduced evidence to
show th.t the same identical tenement, called " Nan z
Le Mellon," of which the plaintiff eras now in Ise s,es.
don, constituting the locus it, quo in which the mine-
rah in question 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 assessionrolls,.caption of seizin, and other ancient
documeots,was, in the year 1774, surrendered to a
`person of the name of Simmonds, who afterwards sus•
rendered it to Mi. Joshua Rowe, and who had acknow-
ledged on the couri4oll that he took it at that time with
all the incidents and qualities which belonged to it 500
years before. That was the case which he (the Attor-
ney General) had made out tin the part of the Clown.
His Learned Friend bad, indeed, treated the assession
foils as documents of little or no authority, as mere
albums in a hich-sthe stewards 'wrote nonsense, like
Ladies who, in those books, recorded the passing events

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of the day—(Laughter). He saw by the countenindee
of their Lordships that they Omagh' be was not treating
ladieS' albums with Jr% respect, but—
. Lord TaNTRRDIEN-.400E00p1e41 the Ladies and nons
sense, Mr. Attorney.
The ATTORNEY GINSitAt. begged pardon of the
Ladies, and he would remind such i f them as did hies
lire honour of attending the discus..Ns in this Mit
that it frequently happened to lawyers iirthat Court as
it did to Members of Parliament elsewhere, that they
had cccasioa to apologise for unguarded expressions
'which were wed unintentionally in the heat of debits
—(G.eacs laught r). He hoped that the Lord Chief
Justice who had called him to order for his reflection
an the ',idles would now be of opinion that he had
made some atonemenkfor his unintentioned irregularity.
He would now advert to the principal documentary
evidence which he had adduced nn the put of the d*
fendant; and he would first of all mention the Parka.
nientary Survey; in which document it was sta eJ,
" th it there ought to be kept it. the manors in tiue,tion
an Assession Court every seven years, to which the
tenants were bound to repti•, there to enter their claims.
fake their tenements, and renew their holdings;
nit that their old holdings sere to determine at the ex-
pit a. ion of, seven yt an, 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 Simmonds, under shorn Mr. Joshua. Rune
claimed, took the tenement in question subject to all the
incidents as recorded in this ancient document. He took
it, " to hold to him and his heirs from seven years to
semen years. according to the custom of the manor."—..
The tenants undoubtedly had an indefeasible sight to
tenew ; but their eight to senew from seven yeass to
-even years did not give them leasehold estates. They
took. nothing mote than a copybold or a leasehold
est. te, sit!) a perpetual right e f renewal; and this was
'•eilfdenced by the fact that ruin, heriots, and fines were
payable, and also that the tenants were to perform
ce tan services, and do fealty to the lord, and also
to find pledges (suretiet) fur reparatie ns and pay-
ment of their rent. These were the incidents which
belonged to this species of esttre several centuries ago,
and they had
.existed floor. theearliest times to t':e pie-
sitit'anoment. The p'atticular species of land which
was called duchy or ,prince's land was well known in
Cornwall, and was as easily distinguished from that
which was called free'land as a field of nets was tbs..
tinguishable (torn a field of barley, in Herrfoidshire or
any other county, or as ' Male was distinguishable
from female; and it this case had been conducted
as cases usually were, the defendant would never have
been required to go back to such ancient documents
as they had been obliged to produce, in older to
pewee the particular descriptittn of land as belonging
to the duchy. The plaintiff, if he had wished to
conduct the case as it ought to have been conducted,
is ould have admitted the existence of the Assession
Court, and the peculiar nature of the to in duchy
lands, and come at once to the questiot., whether the
light to take minerals did or deaf ii t belong to the
tenants holding duchy land ? He (the Attorney Genets])
had shown that the D..ke • f Cornwall had a right to
take-toll
.if tin; and with respect to copper, he had
puled by the lease. which had been grante 1 tenni a
viery.early period, that that mineral htd been taken and
enjiyed.by persons di.tinct from those who occupied
ihe.autfiee • f the land. It was a fact well known in
.Cor-nwill, th st copper minerals. as well as dime r f tin,
had been always claimed by:, the Crown. The cif- '
einiatance became n-torious so long age as the year
f662.' when pi oceedings wese iestituted in the Conn of
•ExCh•que'r ; and yet from that pet sod to the time when
"Alf .Joshua Rowe set up his claim, no eersou had vec-
tored to come forward and li ;gate the question, which
NO Dow been so long under discussion, at the instsnce
of this same.nli. Itstime ltone. The public notoriety
t.f t es e aim 1 f the Dike of Corneal! to the minerals
'in *testi n had not only produced nit litigant to cootest
she question, but the tenants and minas of the land
hsd, for a long series of years, coofirened the right of
the Crown, by permitting its lessees to work the mines
to a considerable exteht, and to put into their ewe
pockets the valuable products. This they would not
!lave "done had they not been fully satisfied that the
Clown had the power of granting the leases. He (the
Attorney General) did not deny the tight of any indi-
vidual to dispute a question like this with the Crown;
rut under ciecumstatices like the Nascent, the person sho
Jid so was not, lie though., de ening i f much commi-
seration. The proceedings in the Coon of Etchaquer
had been followed up by a reef Leek of leases of the
corperin nerals granted by the Crown, ard the:lessees
had uninter iterated eojoy ment undo, them fir a long lilies
of year.; but supposing there had been no evidence 4 '
such leases, could it be peesumed that the Crown,heing
•entitled to the mines of ten, iron. lead, and mat ganese,
the tenants had a right to copper ? Could it be sup-
posed that though the tenant had not the power • f
taking so much tin es would make him a tea knelt or
a pepper castor, that he was nevertheless entitled to
copper,' and that the Chown,, hough entitled to tin,
iron, lead, and other minerals, had no right to take cop-
per ? '• He had heard lawyers talk of string and violet:t
presump4ons. Lord C site himself had alluded tsi them ;
but that the Crown, who was entitled to all other mi-
neral!, had no right to the mineral of copper, was not
only•the most strong and.violeat, but the most tempes-
tuous piesamption which he, or he believed any other
lawyer,- -hid ever heard of. The Learned Geuelesnan
concluded by averting, that all the pro f both of title
and usage was on tie pan i f the Center, and etpeeswd
his. (spinier, that in this unilateral state of the evidence
the' Jury could-not do otherwise than morn a, verdict
for the Crows., •
Mr. BacieMiam then proceeded to address the Jury.
He commenced by congratulating them on the circum-
stance that they had at last reached, or were near
reaching, the termination of a trial which had occupied
so mtlikof their time, which was unrivalled in dulness,
and exceeded in length only by its extreme iinvortance
to the parties, and by the magnitude of the interests
which it involved. He was aware that lie laboured un-
der some disadvantage in addressing them after his
Learned Feiend had for so many days had undisputed
possession of the field. • His Learned Friend had.prost
dated masses--mountains of documents, into which he
had •sunk his shaft, and with the assistance of the
able mining Captains by who m he was surrounded,
had brought up considerable quanativetiesaspfsayedlnatatnerd,
which it was 'now tietime to have
weighed, in order that the dross might be separated
from the yure metal ; in the prosecutioa e f which
task,. he (Mr. Brougham) proffered his humble aid.
The 'luau n to be decided was, " who had a right to
the minerals contained in the estate in question ?" • His
Learned Friend had attempted toshowihat the tenants
had notthe right, because they did not hold that kind
of interest to which the law annexed the enjoyment of
property under ground. It would be his (,Mr. I3.'s)
duty, on the other hand, ti entfeavour to satisfy the
Jury that, from the evidence in the cause, there were
clear and unequivocal indications of thetenants possess-
ing that kind of interest in the sail which his Learned

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