A Report of the Trials and Subsequent Proceedings: In the Causes of Rowe V. Grenfell, Rowe V ...

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REPaRT

OF THE

TRIALS AND SUBSEQUENT PROCEEDINGS,

III THE CAUSES OF ,

ROWE V. GRENFELL,
^ ROWE V. BRENTON AND ANOTHER,

Al^D

DOE (DEM. CARTHEW) V, BRENTON,

EELihriVE TO THE CLAIMS MADE^ BY THE LESSEES OF THE DUKE OF

CORNWALL TO THE COPPER MINEB WITHIN THE DUTCHY

lands; and involving also the question of TITLE

TO THE IfANDS AND ESTATES OF THE TENANTS.

By JOHK^HMCQMB, Esq.

OF THE INNER TEtf^LE, BARRISTER AT LAW.

LONDON :
PRINTED FOR JOSEPH BUTTERWORTH AND SON,

LAW BOOKSELLERS, FLEET STREET;
AND SOLD ALSO AT

MR. CURSON^S, BOOKSELLER, EXETER,

AND &y THR BOOKSELLI^ IN PLYMOUTH, TRURO, AND THE PRINOIFAL

TOWI^B OF DEVON AND CORNWALL.

1826.

BY J. MOrn^ BOUYSKf ■ tTRUIT4

ADVERTISMENT.

The great importance of the questions at
issue between the Lessees of the Duke of
Cornwall on the one hand^ and the Proprie-
tors of lands and mines within the Dutchy
Estates on the other^ and the extensive in-
terest which the claims of the Lessees have
excited in the counties of Cornwall and
Devorij — have induced me to publish the
following Report, from notes which I had
taken for my private use at the Assizes, and,
subsequently, in the Court of Khig^s Bench.
On the recent argument for a New Trial
in the cause of Rowe v. Brenton^ I had the
opportunity of comparing this Report with
the notes of the learned Judge who tried
the cause, and am able to say, that it is^ in
all respects, substantially correct. The Re-
port of the Trial of that Cause at Nisi Prius
was printed befpre the arguments upon the

IV

application for a New Trial took place, in
the beginning of the present month ; had
that not been the case, I should have sup-
pressed the greater part of my notes upon
that Cause, as having been i^lly discussed
in the subsequent arguments, and therefore
become superfluous.

The Court of King's Bench has not yet
pronounced its Judgment, whether there
shiall^ or not, be a New Trial.

J. H.

5, Chancery LanCy 25<A Pth. 1826.

REPORT,

&c. &c.

DEVON SUMMER ASSIZES, 1824.

ROWE V. GRENFELL. .

(Tried before the Lord Chief Justice Abbott, and a Special Jury,

2X Exeter y I9th August ^ 1824.)

Mr. Carter stated this to be an action of Trover,
to recover the value of copper-ore. — -.Plea, the
general issue, — Not Guilty.

Mr 9 Serjeant Pell. — '' May it please your Lord-
ship. GcDtleuien of the Jury : — ^This cause is, in
point of property, perhaps one of the most im-
portant causes that ever was tried. The Plaintiff,
Mr. RowCy is a gentleman very extensively en-
gaged in mines in the county of Cornwall, and has
been a most successful miner.' The Defendant,
Mr. Grenfell, is also a gentleman of the same
county, a large purchaser of ores, being in part-
nership with a Mr. Williams; and, with other
individuals; has rendered himself liable to this
action.

" Upon what right or title Mr. Grenfell will
rest his defence I do not at present accurately
know, and therefore I shall not, in this stage of

B

2 BowE V. OBBNFBLL. — Speech ofPlaintift Counsel.

the cause, enter into questions of historical evi-
dence and documentary proof, that may possibly
not be made use of by the other side ; but if used,
I shall then hare to resort to similar proof.

" It is sufficient for me now to state to you the
general nature of the Plaintiff's case ; which is
briefly this :

'' In the county of Cornwall is a Manor y called
.the manor of Tewington, which some time since
belonged to his present Majesty, being then Duke
of Cornwall, and is situate part in the parish of St.
Austle, and part in the parish of Blazey. It is one
of seventeen manors which originally were granted
by Parliament to the Dukes of Cornwall. The
manor of Tewington was, however, sold in the year
1798, under the provisions of the Land-Too^ Re-
deration Act. The purchaser was a gentleman
well known in this part of the country, the late
Mr. Rashkigh. In 1814, part of this manor was
sold to the Plaintiff. Previously to Mr. Rash-
leigh's purchase, namely, in the year 1788, his
present Majesty, then Duke of Cornwall, had
granted a lease for thirty-one years, of all mines,
escq>t tin, which he held, to a Mr. Daniel, which
lease terminated in 1817. In 1810, Mr. Rash-
kigh purchased the remainder of that lease. In
1809, a reversionary lease for twenty-three years,
to commence after the expiration of the former
lease, was granted by the Dutchy to Messrs.
Williams and others. In a short time, Mr. Rash-
kigh acquired an interest in that lease also ; so
that, you will observe, he held these three sepa-

ROWS v^ Gun^f^hh.'^Speeeh of Plaintiff's Counsel. 3

rate interests, namely, the manor, the lease, and
the reversionary lease ; which latter will expire
in 1840.

" The Plaintiff, as I before mentioned, has
been a very successful adventurer in mining con-
cerns; never any one was found more successful;
and he thus became possessed of wealth to a
very-r-z?ery considerable amount. He worked,
among others, a mine called The Great Crinnis
Mine, where, from his great experience and know-
ledge of mines, he suspected that he should find
a vein of copper, though none had ever been found
there before; in which expectation he was not
disappointed, and made from that mine immense
sums of money. '

*' The estate which the PlaintiflF purchased in
the manor oiTewington is called Lemellan, of which
estate there are two divisions. In 1819, or 1820,
Plaintiff simk a shaft, and began a level on his
estate of Lemellan, for the purpose of opening
another mine there, which he called Wheal Rowe,
and in which he. expected to find another rich
vein of copper. In this expectation also the
Plaintiff was eminently successful ; but no sooner
was his discovery made, and he was about to reap
the reward of his labours and ingenuity, than a
neighbouring company of miners, called The East
Crinnis Adventurers, supposed they had a right
to obtrude themselves upon him, and to take part
of the ores from Wheal Rowe.

" With the East Crinms Company Mr. Rash-
leigh was connected: He is since dead, and, no

4 ROwE V. OBENFELL. — Evidenccfor the Plaintiff.

doubt, he thought himself entitled to act the part
he did by virtue of the rights which he possessed.

" This Company, however, took from the
Plaintiff a vast quantity of the 'ores raised from
the mine of Wheal Rowe— from 200, to 250,000/,
worth.

" The Plaintiff has, of course, advised with
other gentlemen besides myself as to the proper
mode of trying this question ; and it is considered
that Mr. Grenfelly as the purchaser of the ores, is
liable in this form of action. He defends undeif
the East Crinnis Company, being put forward by
them in order to try the right. I do not ktiow
whether the other side are disposed to take any
formal objections, or will come *fairly at once to
the question.

"In Tewington manor there are two classes of
tenants,— /ree tenants, and customary tenants, both
possessing freehold interests, but one greater than
the other. Lemellan is a customary tenement.

*' In the first instance, it will be sufficient for
me, on the part of the Plaintiff,- to prove the tres-
pass which has been committed. The other side
must have to travel through a most wide field of
defence Qf one description or the other, id which
I should only lose myself was I now to enter
upon it."

The following Witnesses were then called for the
Plaintiff: —
Mr. John Williams, junior, (examined by Mr.
Serjeant Wilde.) — '* The Defendant was a partner

ROWE t?. GUEYiVELU-^Evidenceforthe Plaintiff. 5

of mine in 1821 and 1822, and until the latter part
of J 823. I can give evidence, if being a partner I
am obliged to do so. We are indemnified. I
don't know who employs the attorney for defend-
ing this cause. I don't know that the East Crin^
nis Adventurers defend. Mr. Oakley, I believe,
is one of those Adventurers. Mr. John Gill, I
believe, is another. He is here. I have never
seen the list of Adventurers. Twelve months ago
he told me he was interested. I believe our soli-
citor settled that we were not to take the burthen.
We do not interfere — not as Fox, Williams, and
Company,— m defending this causa. Mr. Oakley
and Mr. Gill *are two of the persons who have
indemnified us."

Mr. Henry Brenton, junior, (examined by Mr.
Serjeant Wilde.) — ** I am clerk to the East Crinnis
Adventurers. I know Mr. Rowe's estate ofLemel-
Ian. Am not certain that we worked for copper
in 1821, or 1822. Have not particularly observed
when we first worked. I was on the estate in
1821. In 1822 I believe I saw it. Mr. Gill
and Mr. Oakley are two of the Adventurers.
There is one counting-house at the east end of
the mine.1 Some books are kept at the mines'
oflSce at Tavistock. Mr. Gill lives at Tavistock.
rkeep an account of copper raised. I receive
reports from the captains. Henry Brenton, my

father, is a captain of the mine. Also

Brenton." (Produces ore-book.) *' Sales of the
ores are entered, in the ore-book, or dues-book.
No mention here of the persons to whom the ores
are sold. The ores raised are entered. In October,

6 ROWE t?. «RENF£bL. — Evidence for the Plaintiff,

1822, ores were niised in Lemellan: several tons.
We do not keep an account at our counting-house
of the persons to whom the ores are sold. That
is kept at the mine*office at Tavistock. Ores are
always first laid at the mouth of the shaft.* Then
carried to the dressing-floors. There they lie
until wanted. Ores are generally sold once a
month. I can't tell at what shaft the ores sold
were raised. Several tributors work on the mine.
Peter Keem, Joseph Cock, George Whitter, John
Bray, Alek Bray, were tributors. I keep the
setting-book. That will shew from what part of
the mine the ores were raised."

(Cross-examined by Mr. Adam.) — *' I don't know
of my own knowledge what ores were raised at
Lemellan. I don't know whether there are two
tenements. I pass over it generally every day."

(Re-examined by Mr. Serjeant Wilde.) — " I saw
some dirty stuff raised in 1822, in October.
Don't know what it was. It might be killas, or
ores.

Mr. John WiUiams (recalled.)

[Prodtcces account of ores purchased. ]

Took C?wt8. Qn. t»erTon.

<< 20th December 1821. 1 parcel. 94 at £9 10 6
1 do. 65 4 2 at II

*' We made several other purchases."
Mr. Henry Brenton (recoiled.) — ** We sold ores
on 17th October, 1822. Also 19th December.
Some part was raised in Lemellan. About 180
tons were sold on 19th December, 177 tons so^ld
on 17th October, 1822. These were all that
were sold from Lemellan. We sold from othel*

BowE V. oaBNFELL.*^£t»(/^ctf /or the Platntif. 1

places : various quantities. There is a house
upon LemelUm. Plaintiff occupies it. I saw him
there in July, 182L The same tributors raised
the ores."

Mr. John Williams (recalled.) — " On 17th
October, 1822, we purchased three parcels, and
one-third of a parcel from the East Crinnis Ad-
venturers, at theticketting."

— ; Bishop. — " I am a tributor in the ser-
vice of the East Crinnis Adventurers. I dug out
ores from under Mr. Rowes land in 1821, and
made shafts in his land in 1823."

Mr. Henry Brenton (recalled.)

[Refers to his books.]

'* In summer of 1822 I do not find Bishop's
nanie. In March, 1822, I find it He raised
ores. Fifty tons were sold, 21st March, 1822,
He and his partners raised it. Ores sold 20th
June, 1822 : six tons sold, raised by Bishop."

Mr. Williams (recalled.) — ** On 20th June,
1822, I purchased 7^ tons, 6 cwt. of the East
Crinnis Company."

[ Wilde, being in difficulty, here called for the Bopd
of Indemnity, which was produced.]

" Since I have received this bond of indemnity,
we have given up the defence of this cause to the
attorneys who now defend it."

The execution of the bond was proved by the
attesting witness, and the bond put in and read.

It was dated — ^ , 1824, executed by

John Gill and Francis Oakley, and made in favour
of Messrs. Fox, Mr. Grenfell (the Defendant), Mr,

8 ROWE V. ORIB^HTELU—Evidencjefor the Plaintiff.

Williams, of Scorrier House, and others. — Penalty,
18,000/. — The bond recited, that, " Whereas at
public tickettings in Cornwall, large quantities of
ores from Crinnis mine, being all that were raised,
were offered for sale, and parts were purchased
by Messrs. Fox and Company for several sums,
amounting to 9000/. and upwards. That an action
was depending for recovering the value of the
said ores from the Defendant ; and that the de-
fence of such action was wholly committed to the
attomies of Messrs. Gill and Oakley. The con-
dition of the bond was to indemnify Messrs. Fox
and Company against the present, and all other
actions which might be commenced."

Mr. Kelly (^examined by Mr. Serjeant

Wilde.) — ** I have the cost-books of the ilast
Crinnis mine for 1821 and 1822. They contain
accounts of sales, but not of the buyers. Another
book does; and one of the books shews where
the ores were raised."

[It was here admitted by the Defendant's
counsel, that the Plaintiff had sufficiently
proved ores to have been dug from under
his estate called Lemellan, by the East
Crinnis Adventurers ; and that the same
ores were sold to Fox, Williams, and Com-
pany (including the Defendant), at public
tickettings, or sales.]
Mr. Francis Vivian (examined by Mr. Serjeant
Wilde. \ — '' I am mine-agent to the Plaintiff. Have
been so since 1811. I know Lemellan Moor well.
In 1814, Plaintiff went to live there. He lives

^' '^"^^paB^mmK^mt^afm^fra^nrm^^fa^fmmmm^m^m^K^Kmmimm^m

RowE D. GEENFEtL. — Evidence foT the Plaintiff. 9

there now. There were no mine- works in 1814
that I recollect. In 1820, Plaintiff commenced
his works.. Sunk a shaft in June 1820, in what
is called Mr. Rowers, or Lemellan Moor. After
that a level was made — a 14 fathom level. Two
other shafts were afterwards sunk. Up to the
beginning of September we had raised from 10
to 12 tons of copper-ore. Afterwards raised
more. It was taken away by the East Crinnis
Adventurers. Not interrupted afterwards till
June 1821, when we had sunk another shaft,
and then they took possession of the PlaintiflTs
mine.

•".I know .Afr. Brenton. Have seen Mr. Gill
among the East Crinnis Adventurers. They have
worked the mine ever since. I went frequently
on the mine. They used our levels, not the
shafts. I have been down in the mine. Great
quantities of ore have been taken out, up to the
present time."

(Cross-examined by Mr. Adam.) — " In October
or November 1821, I was down in the mine. I
don't know what may have been done in it since.
There was an old shaft on the mine before we
began in 1820. Some tin-adventureri^, called the
Forth Company y sunk it. Captain Hitchins worked
there for the East Crinnis Adventurers. There
were other shafts sunk."

Mr. Serjeant Pell. — " That is my case."
The Lord Chief Justice. — ** It is no case at all.
You have shewn ores raised, but not that you

10 BOWE V. GEENFELL. — Evidence foT the Plaintiff.

were entitled to them; you might as well cut
my trees, and therefore sell them."

Mr. Serjeant Wilde submitted that he had
proved the occupation both of the house and estate
of Lemellan by the Plaintiff. — But,

The Court doubting,

Mr. Francis Vivian (was recalled, and examined
by Mr. Serjeant Wilde.) — " Lemellan estate, oc-
cupied by Plaintiff, consisted of a farm of about
36 acres. Plaintiff fanned it — before he began
mining. Lemellan Moor was cultivated with the
farm. Part was in oats. A field of about 8 or
9 acres ; part of the 36 acres. Plaintiff farmed
it firom 1814, when he purchased, up to 1822 or
1823. He occupies it now, except the part
occupied by works of the East Crinnis Compaily .
I paid the farmer for the property of his which
Plaintiff purchased. I don't know what interest
or tenure Plaintiff purchased. Th^ land was all
well fenced in."

{Cross-examined by Mr. Adam) — ** It is well
known by the name of Nans-mellan — not so well
as Lemellan. There were fixtures in the house/'

Mr. Serjeant Pell — '* That, my Lord, is my

case*"

Mr. Adam. — ^^ I submit that it is not a sufficient
case to go to the Jury."

The Lord Chief Justice. — '* It stands now, that
the Plaintiff came into the estate in 1814, by
some means ; but by what interest or right, does
not appear. That he farmed till 1820, and then

RowE V. GRENFBLL. — Evidence for the Plaintiff, 11

began mining. That other persons come and
take away the ores as fast as he raises them.

*' Upon this evidence, the first presumption
certainly is, that tiie Plaintiff was seised in fee of
the Estate*. But that presumption is rebutted,
perhaps, by the fact that other persons come and
take away the ores. Why do you not prove your
title ? I think it very unsafe to rest your case here.
I don't at present say that I would nonsuit you.
But I very much doubt whether the jury would
give you a verdict. You see other people may
be entitled to the mines."

Mr, Serjeant Fell. — " At present, I am not in-
clined to carry my case further:"

On consideration, however, the following wit-
ness was called.

Thomas Oliver, Jun. — (Examined by Mr. Carter.)
— ** I am a carpenter. In 1814, and ever since,
I have been eniployed by Plaintiff, to plant oak
trees. I- have cut timber on Lemellan''

Mr. Serjeant Pell. — ** I will not trouble the
Court with further evidence. I have proved pos-
session and full occupation of the surface. In
ordinary cases, this is sufficient to prove a right
to the whole produce of the land. I therefore
submit, that the party intruding upon this pos-
session must be taken to be a wrong-doer, and
must prove a better right. There is nothing, I

* It appears to have escaped notice, tha^t the PlaintifTs Counsel
opened his case, stating, that Lemellan was a customary tene-
me)i< of the manor of Tewingtoriy and, if so, that the right of soil
and minerals, pritnd faciei was in the Lord.

12 ROWE V. GRBN FELL. — Speech ofDtfendant's Counsel.

apprehend, in the nature of this property, being
mineral, to vary this case. For reasons, which I
do not mention, it is not our wish to carry the case
further."

The Lord Chief Justice. — ** I tell you what is
ray diflSculty. You come into possession of a
tenement, which you occupy for certain purposes,
but not for purposes of mining. And we know,
that in conveyances minerals are often ex-
cepted, and particularly in the county of Corn-
wall. Now of this mineral you have never been
in the enjoyment. The moment you raised it,
others came and took it away. You would have
stood better in my opinion if you had brought your
action the^r^^ time you were interrupted. The
other parties were all the time in possession of the
Crinnis mine."

Mr. Serjeant Wilde. — ** It is true that minerals
are often reserved. But, generally speaking, if a
man is in possession of the surface, no presumption
would be raised to limit his estate. Up to the
time of working his mine. Plaintiff had done every
thing to clothe himself with the right."

[The Court y appearing to be strongly impress-
ed against the sufficiency of the Plaintiff's
case, now put it to the Defendant's counsel
to elect whether they would call evidence;
or go to the Jury upon the case, as it stood,
for their decision, whether the Plaintiff had
proved his title to the minerals ?]
And, after some consultation,
Mr. Adam said, — " My Lord, I will take the

HOivB V, GRENFBLL. — Charge to the Jury. 13

responsibility, aided by the opinions of my learned
friends, of going to the Jury upon this point alone.
" Gentlemen of the Jury :— The Plaintiff says,
you are to presume that he has the right, or pro-
perty, in these minerals, because he is in pos-
session of the surface ; but he has not attempted to
shew that he had even a conveyance of the land ;
— ^he won't produce it. The very land he pur-
chased had shafts sunk in it for mining, before
tjie time of his purchase. And other persons,
after that time, had taken both copper and tin
ores from an old shaft upon the land. Nothing is
more common than that the right to the surface
should be in one person, and the right to the
minerals in another. And this more particuliarly
in Cornwall. Here the presumption is totally
done away, by our always taking the minerals as
fast as the plaintiff raised them."

[Here Plaintiff's Counsel proposed terms of
compromise. But the Court thought it
not fair, after having driven Defendant's
Counsel to their election. And, Adam ob-
jecting, the Court would not hear it, but
told Pell he might elect, if he pleased, to
be nonsuited: which, however, he declined,
and Mr. Adam proceeded.]
" This action is brought against a person who
had nothing to do with taking away the minerals ;
but who, as a purchaser, paid his money for them
in open market. The Plaintiff should, and may,
try his action against the proper party."

TTie Lord Chief Justice. — **An action of trover
may be maintained in two respects; — 1st, If the

14 ROWE V. ORENFELL. — Chargcto the Jury, and Verdict.

Plaintiff was in pos^ss'wn of the article ; — and,
2dly, If he can shew a right and titk.

*^ Now as to the actual possession, there is
hardly any evidence of that. Then, as to the
title : the possession of land generally raises a
presumption that the party is seised in fee. But a
seisin in fee does not imperatively call upon you. to
presume a title to the minerals, because a seisin
in fee may be, and very often is, in one person ;
and the title to the minerals in another. Of this,
therefore, you are to judge by the evidence. I

Upon the evidence, I think a seisin in fee is not
aecessarily to be presumed, although the evidence *
ia strong.

'' Then the most important question arises as
to the minerals. As to these, you will observe,
that persons not appearing to be the former occu-
piers of the surface, but who are described to be
The Forth Company, had, before the plaintiff came
to the estate, sunk a shaft for tin. There was
also a pit, which some other persons had worked
before plaintiff came into possession. Other per-
sons, too, had worked the mines under Plaintiff's
land, and they took the metals from the Plaintiff
as soon as they were raised by him.

'* If the Plaintiff has made out a title to the
minerals to your satisfaction, then you will find
a verdict for him ; but otherwise, for the De-
fendant."

The Jury, after consulting together for a short
time, returned a

Verdict for the Defendant.

■^'^•^PB^^IW^^^PW^

DEVON SPRING ASSIZES, 1826.

EOWE V. BRENTON AND ANOTHER,

(Tried before Mr. Justice Park, and a Special Jury, at Exeter,

17 th and I9tk March, 1825.)

Mr. Rowe stated this to be an action of Trover,
to recover the value of copper-ore. The Damages
were laid at 5000/. Plea, the general issue, —
Not Guilty.

. Mr. Serjeant Pell. — '' The Defendants appear
upon this record as principals, with reference to
the transactions which are the subject of the pre-
sent inquiry, but, I have reason to believe, are
acting under the authority of others.

** The Plaintiff is a very considerable adventurer
in mines, in which he has had the good fortune to
have made extensive discoveries, and, indeed,
appears to have had a peculiar tact upon the
subject. In other mercantile speculations he has
not been so fortunate ; and his claim to-day is of
the utmost importance to him : he, seeks at your
hands the reward of his own discoveries.

'* In 1820, the Plaintiff was proprietor of an
estate, called Leniellan, in Cornwall, part of the
manor of Tewington: he was in possession for
several years, and ofccupied his estate in the usual
manner. * In 1820, he found a vein of copper-ore

16 BOWS V. BKEHTOK. Sfttck of PlokU^S CoMMMel.

upon his estate, the lode being not many feet
below the sor&ce. This discoTery excited the
wonder, and (I am sony to say) the cupidity of
the country. In &ct, the Plaintiff became pos-
sessed of a mine of incalculable value.

" After the copper raised from this mine was
brought to grass — ^that is to say, to the surface of
the land — ^the Defendants, acting under the autho-
rity of others, came into the Plaintiff's close, and
took away the ores.

" Here, then, I might rest my case. Upon
proof of these facts I should be entitled to your
verdict ; but I think it proper to state to you the
nature of the defence which I anticipate.

" It will be said, I believe, that the Plaintiff,
although the owner of this estate, has no right to
this part of his property ; just as if any of you
had found a vein of coal, for example, on your
estate, and should be told that you had no right
to it!

'* The county of Cornwall traces its history from
great antiquity ; and it may be that the Attorney-
General may be able to shew a title in some one
else to these mines. It would be hard enough,
to be sure ; but, if the law is so, I am not dis-
posed to quarrel with the law of my country.

'* By a charter of King Edward III. in favour
ht his son, Edward, Duke of Cornwall, better
known by the title of ' the Black Prince,' seventeen
manors in Cornwall were vested in the Duke.
It will be said that this manor is one of them,
and that the tenant has no right to the minerals.

iiW!^"W"" ■■■'■■ T ■■■

^^^1

Itows V. BRENTON. — Speech of Ptaintifs Counsek Vi

'* I am in utter ignorance of the documents, or
evidence, which will be produced on the other
side. When the Plaintiff sought access to the
duchy records, the door was locked, and all infor-
mation debarred from him. The Plaintiff, there-
fore, can only stand on his general right. Every
thing which fcan be done will be done on the
other side. And his majesty's attorney-general
comes forward to-day, armed with every autho-
rity, against me, who am very — very short of
assistance.

" I will shew Plaintiffs possession, and the
general nature of his estate, as in any ordinary
case. The mine in question is called Wheal Rowe
mine. The Plaintiff has at all times exercised the
highest species of ownership, has taken the soil,
opened quarries,, and cut timber ; and if these acts
are undisputed, then, I say, he is the perfect owner.

^^ The estate in which the mine is situate is
called Lemellan; it is what is termed a bounded
estate, which means, as referable to the whole of
Cornwall, an estate marked out upon the surface
by metes, or bounds, for purposes of mining.

** The county of Cornwall was first visited by.
foreign countries, in very ancient times, for pur-
poses of commerce, and particularly for tin, from
which mineral the very name of Briton is de-
rived — the word Briton signifying tin.

^' The stannary laws in Cornwall are of very
great antiquity, and they apply to tin. On wastes,
(which are the lands unenclosed,) any tinner might
take his bounds, by digging up a turf, or other

c

18 BOWE V. BHBNTON.T7-iSpe^(:A of Plaintiff's CounseL

bouXid, and claim to dig there ; and he might aisa
olaim, if he pleased, to dig in any ancient enclosed
lands whioh> had been previously bounded. . .

" In a book which I hold in my hand, entitled^
♦ The Laws of the Stannaries,' (p. 34), (referrmg
to the book), there is a presentment of a convocation,
or parliament of tinners, which shews, that / any
tinner may bound wastrel lands unbounded, and alsa
any ancierU enclosed lands which have beenbounded* J
. *5 The estate oi LemeUan is a bounded estate;
for many years it has been an enclosed estate;
Aa a bounded estate, it will be urged on : your
attention by the other side; but the utmost that
can be made of it is this, that their argument
applies to tin ; not to cxypper ! and we shall attempt
to shew, to-day, that he who has a right to take
tin, has not a right to take copper.

"I should like to see any document from the
dutchy-office, which, entitles them to take copper.

* " We present and affirm, that by comtnon prescribed Stan-
nary right, any tinner may bound any wastrel land within the
county of Cbrnwall that is unbounded, or void of lawful bounds ;
and al$o any seyeral and enclosed land that hath been anciently
bounded and assured for wastrel, by delivering of toll-tin tO' the
lord of the soil, before that the hedges were made upon it ; and
also such and so much of the prince's several and enclosed
customary land within the ancient dutchy assessionable manors
as hath been anciently bou tided with turfs, according to the
ancient custom ^nd. usage within the said several dutchy manora,.
^nd not otherwise, the tinner paying out of such land sp bounded
the usual toll' only as is generally paid within the Stannaries;
that is, the fifteenth dish, or part, saving in such places where £L
special custom hath limited another rate of toll."^-Zaw5 of tht
Stannaries y page^ 34*

ROWE V. BRENTON, — EvideHcefdr ttte Plaintiff. 19

They hafve access to eveiryi document, ev^n ftbca
the Tower of Lotidon, down tb the Idwest place
wHefte a sdrap^of parchment may be fouiid.'-

I ^*^ T^u* will all feel, that if success can a:ttebd
the Plaintiff; it ought to do so, that he. may rea|)
the teward of his-own diseoaieries; and I shall
i^ertainly ' s6^ shafie my:case, ias> in my judgment,
i^ mdst likely to conduce to his success. >

*^ It is Jilgh time that this ' question should
be «et at rest. There is not an- individual 4ii
Cornwall, — nay more, with reference to the prin-
dplfis 'at issue in thfecau^e, there is not an indi-
vidual in 'this kingdom, -^whois not ^ep/^ 'inte-
rested in the result of 'the prfesent itiquii^ !" , -
[The learned^ serjeant conc^ludedi with a higli

etaiogium upon • his - learned friend, the

Attorney-genefar.]

The folidwing witnessfss weris t/ien called fdr thi
Plaintiff:— ^^^ - i . . > c-

Francis Vivian ^ (esdmined by Mr. Serjednt
Wilde.) — ** I know Lemeltan ^stBXe. Plaintiff
has been in possession sitice 1814. I am em-
ployed by him. He has taken the crops-— cut
timber. I have- been employed by him to dig^^r
minerals. Part of the estate is- called Lemellm
Moor. It was there I commenced my mining
operations. Although called a moor, it 'is an
enclosed field-*- not different from any other
field of the fafm as respects the fences. Crops
Had previously grown upon it. First sunk a shaft,
called Rowe-s\iZ,it. Began in June 1820. We

•/

20 AbwjB V. BRENTON. 'Evidence /or the Plaintiff.

got upon a lode. A lode signifies a vein of or6:
Copper is always found in a lode, if found at alU
We sunk three shafts. There is a house on the
estate. We obtained copper from that lode in
July 1820. We have since obtained other cbppen
Shortly after July I went to LondoUy having left
the copper-ores then^ lying on the surface of the
land. When I returned, the first copper we had
raised had disappeared. In consequence of what I
had heard, I saw Defendant, Brenton. We have
since raised other copper, which has been re-
moved by other persons than the Defendantfe*
On 2Jst November 1820, I saw the Defendant^
Captain Brenton, on the estate, when the copper
which had been subsequently raised was remov-
ing. It was removed by the Defendant, with
carts. He gave instructions to the men who
were removing the copper. It ^ was removed
against my consent. I was there, in charge for
the Plaintiff. Some had been taken off the estate
before I came. " I had left about 10 tons on the
ground, in the morning of the same day. About
6 or 7 tons were removed before I arrived.
The rest was all removed in my presence. It
had been raised by me as the servant of Plaintiff,
and deposited in the place from whence the De-
fendants took it.

. ** The whole of Lemellan estate is enclosed*
There are two closes on Lemellan Moor. There
were remains of tin-works on the moor. There had
beeii a shaft upon it connected with the tin-works*
They had nothing at aE to do with our works.

R'OWE V, RRENTON.^— £vidkwce/br the Plaintiff 21:

*' I have lived all my life in Cornwall.''

(Cross-examined by the Attorney-GeneraL)—*^ I
have beard Plaintiff say he purchased the estate
of Mr. William Pearce. I don't know whether
Pearce occupied it. I knew. the estate in 1811*
The iron shaft was sunk in 1812 or 1813/ as far as
I recollect: I have heard, under the direction *df
Captain John Hitching^. I don't know : whose
captain he was, except from hearsay. The shaft
wai^sunk before Plaintiff came, and was an open
shaft then. Brenton had sunk other shafts on this,,
and the adjoining property. Brenton is captain
of the East Crinnis Company. There is a great
deal of copper got from that mine. The captain's
jurisdiction extends under-ground, and over the
surface. East Crinnis extends under part of
Lemellan Moor^ — I believe not under any other
part of the estate. East Crinnis is about a quarter
of a mile from Great Crinnis. Great Crinnis is
also a copper-mine. The East Crinnis people
took away, in September 1820, the copper that we
raised in the July preceding. They have con?-
stantly claimed a right to do so, and have taken
it away. Many actions, and several indictments,
have been brought.'' '

(Re-examined by Mr. Serjeant Wilde.) — " Shafts
have been dug against Plaintiflfs consent, and by
force. The East Crinnis Company did not begin
their works in Lemellan. No other part of the
East Crinnis mine is in Lemellan, except that
which has been done against Plaintiff's consent.

ThomMs Oliver, junior y (examined by Mr^ Carter*)

•♦■ — ^ ~,.'*J'

2Z. itpwE V. BB£NTON--T-JSt;*Vfewe/or the Plaintiff

— " I ani a cai^enter in.th? Plaintiffs emploiy ; —
have been; so ever ^aincfe I8i4. Worked for him
on LemeUan estate. I saw trees planted on th6
estate, under.my direction.— between 2 atod 3000*
Ilhiate altered gates on the estate, jaod pulled
down buildings, «taWes;.&c., by Plaintiffs dii3^c-
tio». Timber has been cut dowxi by Plaintjtffs
ord^s : a ) rgreat : joiumber j^ treeift. Wheixey^r . I
waiited a tree; J xsA it. Part of the tirober ]^a^
carried to .a mine called Wh^ai Regmty »tfee»
belonging, in pant, io S^iixtiff, It is about a mgyiQ
ftcan i!£meltan. \^No one: objected to, oj:* forbj^d^
my cutting iimher." , : : ..' . « . . : >

'^ ' ^( Cross-examirud by the AW)rney-Gemrg'L)^'^
V IThe timlier was xised m nspjairs a^d £^q^s«
Wa^dcut'^about tbe ead of ISJW-nSQon ?i%gKJW^
came ta tiie estate* ^ A peraoa 4i€\.iufi4 U^jfs^o^n
pidd: before daakiliff. Aah, oak, mA ^tfi 3YJ93
cut. Wbat w6 did not use .was* sold to tbje pr^^
prietors cS Wheal Regent. . Plaintiff i^ still qjiaking
alterations."^ They ha^ been ^goijftg on i$i]i[C;e:i$L4«
The house, is not very latge-i PiaintiiFJii^es 'm it
when be «jomes there/' ■": - \ . • .,

fJRe-eautmimd iy Mr. Serjeant Fell.)—'' Ash
was the largest-sized timber .1 ^nt. Th^ oakil
were not very large, perhaps 9 inches ^qua^e.
About 3 or 4 waggon-loads were ^lold . Part of
the timber grew in^the hedges. A rxxw of tne^eS
irtood H)n each side of the. lane — they iwere .^L
Part of the ash^trees^ grew oh the highest partiPf
the estate." ? r i

Mr^, )Serjeafft Pell. '-^'^ My Lord,, that is ihe

i;^i*« -i^ip nil na^^^^iw^^Bpi

EOWE til, BRENTON. — Speech of Defendant's Coumek 23

case on the part of the Plaintiff,, It is agreed^
that, if a verdict , shall be given for the Plaintiff^
the amount shall be JOO/.

• »

<Mr. Attorney 'Genfital then addressed the Jury
for the Defendant. ""

'* May it please your Lordship — Gentlemen of
the Jury — I cannot help regretting the course
that has been taken by my., learned friend,
because, now in answer to the ca^e which I
shall lay before you on the part of the Defend-
ant, and which in my judgment is a complete
answer to his primd facie case^ h© will have to
adduce sotne further case, and I consequently
inust afterwards address you again.
' *' AUqw me to say, that I have not availed my-r
self, for the purposes of this case, of any advantage
which! may poiisess from my public situation^
and I should act unworthily if I did. I ofJy
know the cause as it has been put into my hands,
with all the evidence prepared for me, as it will
l>6w be my duty to lay it before you.

"As contrasted with my learned friendi, I
labour under, great disadvantages. It is now 20
years since, that I remember to have seen him ia
nearly the same situation, and addressing juries
with the same energy and eloquence; whUst J
am almost a strange in this part of the coyntry,
wad little acquainted with Cornwall,

''•It is not tme that the Plaintiff discovered thi^i
mine. I shall shew under his own hand- writings
his congratulations to the discoverer; andlxis re-

24 «owB v.BRENTON. — Speech of Dtfoidaiit'i Couiuel.

quest to have a lease of the mine. Since then,
he has pushed the mine, I admit, in all directicniB,
but wiUiout any right or title.

" My leamfd friend uses the term " pr^ierttf;"
but this must be viewed with reference to the
local situation, in the county of Cornwall. It is
not the right to the surface, timber, or crops, that
is in issue; but the only issue is, whose ptoperiy is
the mine inquestion? And this point is thus brought
before you in the most unembarrassed form.

" It is incumbent on the Plaintiff to prove the
affirmative, namely, that the mine is his property:
even admitting, for argument, that a copper mine
belongs to the party who discovers it, still the
Plaintiff did not discover it. My learned friend
uses the word " property," because he knows the
weakness of his case. Remember always, that
we are trying a question of right iu the county of
Cornwail.

" The plaintiff is not the freeholder of this
estate. He has what was formerly called a base
interest ; a right to the surface, but the freehold
is in the Duke of Cornwall. Why are not the title-
deeds produced? because it is more convenient not
to present them to you ; they would have shewn
that the plaintiff has not the interest which he
wishes you to believe.

person named Withiel conveyed this estate

irce, and Pearce to the Plaintiff. H^thiel

d this very mine under a Set, or Lease : but

Df this by and bye.

s to the history of Cornwall ;

koWe 13. BRENTON* — Speech of Defendant*^ CnunseL 25

.*VAt one period the whole county belonged to
the Crown.

** William the Conqueror granted the county to
his brother Robert.

** Henry 3^ afterwards possessed it ; he granted
it to his brother Richard^ the king of the Romans ;
from him it descended to his son Edmund, who
died without heirs, and then it reverted to the
crown.

^* The Crown held it until the reign of Edward
2rf, who gave the earldom of Cornwall and the '
Crown Manors to his favourite, Pierre Gaveston.

** Gaveston was afterwards banished, but came
back ag^n, and being restored to favour, a second
grant was made to him. Eventually he was be-
headed, and the property again reverted to the

Crown.

" Early in the reign of Edward 3, that monarch

conveyed it to his brother JbA» of Eltham — he died
without heir$. Then there was a grant by the
crown to Edward, the Black Prince, by charter,
made with the assent of the legislature of the
country at that time, and always considered to
have the effect of an Act of Parliament.*

/* By this charter, the Prince of TJ^fe^y, as such,
always holds the dutchy of Cornwall. It is in-
alienable : does not descend to the heirs of the
prince ; but, when there is no Prince of Wales,
reverts to the Crown- There have been many
very important decisions on this charter.

" After the death of the Black Prince, the pro-

* It wai so decided, in " The Prince* f Casef" 8 Co* Rep; 28i

20 mawE 17. BBBNTOK.— j^pflccft ofB^tmiomes Cmauel.

pertj reverted to the Grown; tihere being no
Prince of Woks, it was granted to the son of
the Black Prince, and specifically included all
mines

'^ No i^oof has be^i offered by the other side,
that diey w^e d^ed access to tiie dntchy muni*'
ments. But they had no right to it ; they should
hare applied to the C(mrt of King's Bmch, who
would have ordered an inspection, if they bad a
ng^. But no application was made to any party
connected with this cause.

*' The property in question is part of the dutcfay
of CornwalL There is no dispute about that fact.
The didrict in wiiich it is, is called Nam-Mcllai
in aU the old records; Whether co-ext^isive, or
not, with Plaintiff^s estate, I am not certain.

*' There are 17 manors belonging to the duke of
Comwally called assessionabk manors, and in these
manors were three descriptions of tenants.

'* 1. Free tenants, who were freeholders, owners
of the soil; and the lord had no title, ekher to the
soil or minerals.*

* Qusre tbis? If they were free tenants of the manor (as con^-
traHdistuiguished from freehold estates, properly so called, situate
within the manor, but not held by c<>py of Court Roll), then their
estates must have been what are termed customary freeholds;
that is to say, estates of inheritance held by copy of Court Roll,
according to the custom of the manor, hut not at the will of the
lord. In customary freeholds, however, the right to the soil and
minerals (which are a part pf the soil) remains in the lordi>
Bishop of Winton v. Knighty 1 ?• Wms. 406 (cited Bourne v.
Taylor y 1 East, 189), unless there be a custom of the manor to
the contrary, hx usage from which a ^nnt of ^e minerals to the

I

•

fiQ.wzv. Bi^iiNTON. — Speechqf Defendant's Counsel. ^7

/' 4$d. Conventimary tenants, fhat is to say, tenants
by s^eement,. convention, or covenant. Ajad
these, 9^in, were, divided into yreewiew and ^erv/fc,
or natives,

, *' 3d. Natives of stock, pure and absolute bonds*
men. At present we have nothing to do wU]p[
eitbser tb^ ^r^t or thii:d class, but only with the
second, because Na^s-tnellm w^s a conventioiiary
tenement.

*\ The question is, what estate had these conyep*
tioQary tenants? They were leai^eholders, generally
fQX;^eveii years,, but ^onaetimes for more— -for four^
teen or twenty-one years. They paid rent, vary^
iijg in amount : were prevented from committing
iy$^te : w^reboupd tP stpojc the land, &c., and in
all respects were leaseholders, as at the presien|
day.* ^ .

tc^^t or other penKin? may be presumed ; as in Curtis y. Daniel^
7 Ea^ty 273. And this doctrine applies equally to <i/^ copyhold
estates, as the copyholder has no estate otfreekoldy which re-
mains in the lord. 2 Inst. 325. Lit. S. 81. Perhaps with respect
to customary freeholds, the interest which the tenant takes re-
quires further 4»)nsideiation in a court pf Co99moB Law ; for the
case of the Bishop of Wj^ton y. Knight was in Chancer]/, and the
question of the tenant's in^er.6$t decided upon an issue at ^m
PriuSy which does not appe^ to have been subsequently reviewed
xja a superior court at law f and there certainly are authorities ii)
^e books to shew that a ci^stomary freehold is not, properly
speaking, a copyhold c^ate, because not held at the wilt o/ the
lord, Co. Lit. 58, and that jthe tenant has aiii interest equivafent to
a freehold. 2 Bl. Com. 100.

♦ Bjit qufi^re, did they not hold by copy of Court J^oU ? If they
^d jao^t, an4 tl^^t fact be established by satisfactory proof, then
the estate;^ ^$^^.^91 ",?V^ ^^ copyhold, b^caus^ it is efseptia^ to the

28 ROWB v. BBENTON. — Spceck of Defendant s Commt.

*^ These manors were called Msessianabk manors
because persons were accustomed to be sent down
to the country to renew leases from time to time,
and to assess the rents. Of their proceedings we
have records down to the present time^ of which
I shall give some in evidence.

*' The assession rolls are as early as 7 Edward III.
There is a commission of John of Eltham, then the
owner of the property, addressed to four persons,
as commissioners, to assess the land. They were
sent down to the country for that purpose, and
jauthorized to let either to the same, or to other
tenants*

** The return to this commission shews the lands
to have been let for seven years, except as to the
third class of tenants.

** There is a roll, relating to Nans-mellaUy of
the same date."

[Roll read ; by which it appeared there was
a letting to Philip De Nans-mellan, at a
rent, and for a fine, an increase of rent,
fealty, &c., and similar lettings to John De
Nans-mellan, Jordan De Nam-mellan, and
Gregory De Nans-mellan.']
** This comprises all that tenement which is'

validity of a copyhold estate that it shall have been demised by
copy from time immemorial ; and there can have been no creation
of a copyhold tenure since the reign of King Edward I. (Com.
Abr. Title Copyhold (B) 2 Bl. Com. 91.)

And if the lord of the manor grant otherwise than by copy, a
common law interest, as for a term of years certain^ the nature of
the estate, as'a copyhold, is thereby for ever destroyed. French's
Case, 4 Co. 31, a. Cro. Car. 521. 1 Roll. Abr. 498*

' ?liowK v. BBENT^ON.— Speec/i of Defendants CounseL 29

now called Le-mellan; and clearly proves that

the whole was leasehold.

** The commission was manifestly adopted by

the tenants, and must be taken to shew the right

as it then existed."

[Rolls of the lettings of different tenements
in the several assessional manors were
also read, shewing, that the lord appointed
another tenant when a tenant was not in
a condition to renew ; that they were called
conv^ntionary tenants ; and that the condi-
tions of the convention, as regarded the
occupation of the several tenements, were
similar to that of Nans-mfllan.
Also a roll of 21 Edward III., shewing a

commission in the same terms as before,

ft

relating to the manor, of Tewington, and

shewing, that the best beast was reserved

in nature of a herioty upon some of the con-

ventionary estates.]

** In freehold property, on death of the tenant,

a relief is payable; in copyhold tenements a

heriot. Indeed^ every lawyer knows the nature

<)f an estate which pays a heriot*

*' In this roll," {referring to a roll dated
28 Edward III.) ** under title, Free-converi'^
tiqmriesy John de Nans-mellan takes a conven-
tionary estate in preference to -another tenant,
and appears, by the margin, to have been let in
by auction, and to have taken at a higher rent.
: "In another instance, there is a decrease of
rent; and the reason noted in the margin, VAe-

BO BOWS V. BniLvrqv. -^Speech oj DeJendant'»Cauh^.

eause tenants had quitted the vill, the rents being too
high:

** So in roll 45 Edward III., title Nans-mellan,
John Jaurdan, a freeman, is decreased in reht,
because too high.

" There is a long series of these rolls; at least,
so I shall at present take it, do:wn to 27 Henry
VIIL

** From these rolls it appears, that the lands
were let by the lord; the rents varied; there
were powers of distress and re-entry; heriots
payable ; the lands often left in the lord's hands ;
tenants bound to repair ; to stock sufficiently ;
not to commit waste ; to reside ; and forfeiture if
these acts were not done, and if they dug tin! •
. "In the reigns oi Edward VI., Philip and Mary,
and Elizabeth, there were no dukes of Cornwall ;
and then we find attempts were made to abridge
the dutchy rights.

"In King Charles' & time, the estates were
seized by Parliament. In the confusion, there
was no one to take care of the dutchy rights:
Alienations were made, and encroachments not
authorised by law, being contrary to the charter
before mentioned.

" In process of time, the tenants claimed in-
alienable estates. First, the words * heirs and
assigns ' were introduced ; then ' heirs and assighs
for ever ;' then to be granted by indenture, instead
of by copy of court-roll.

" In Charles II :s time, there was no Duke of
CornwalK

itow£a7.BUEj<(TON. — Speech of Drfenditnt^s CouHseL 31

"The Dake has officers of the dutchy, an
attorney^geaeral, and other officers.

" In Queen Elizabeth's time, she took possession
of, and alienated the dutchy estates to a con-
siderable extent.

»

*' The copyholders, by degrees, have encroached
in the like manner. They have now got to an
inalienable estate ; yet they have not now the
right of soil in them ; but the freehold still re-
mains in the lord.

" Of this nature are these cofivent ionaryi est^Xes,
If they were not freeholds at the time of the great
charter of Edward Ill.y they cannot be so now *;

* There is an ambiguity in- the use of #4he word freeholdj-m
this and other parts of the A'ttorney-Generars speech ; whether
it signifies a freehold estate properly so called, or a cnUomoery
freehold. If the former -be meant, the argument may be con-
ceded; but if the latter, it will perhaps be thought right to
consider further the ^ase of the Bishop of Winton v. Knighty
before the principle involved in that case and the present is fully
acquiesced in. Lord Coke (Cop. S. 32), declares, " That in
these copyholds of frank tenure the freehold resteth /itt /A«
tencmty and not in the lord." And there are many authoriiids in
the books, some confirming his opinion, and that these estate*
cannot be copyholds, because not held at the will of the lord r
and others directly contradictory, all which are collected, and
the subject fully discussed. (Scriven's Copyholds, chap. 15.)

The whole question at issue is, in whom is the right of soil?
It is said, that the estates of inheritance, which have been granted
to the tenants, are encroachments ; and that it was not compe-
tent to the lord to gremt such estates, because by the- charter of
1 1 Edward III, the dutchy estates are rendered inalienable.
And the argument assumes both that the Plaintiff's estate was
originally, and still is, of copyhold tenure, and that in all copy-
hold tenures the freehold and right of soil remain in the lord..

32 BOWE V. BRBNTOM . — Speech ofDefendatO's CmaueL

44

In the reign of James /., when Henry was
Prince of Wales, an investigation took place into

Admitttogy therefore^ the tenure of the Plaintiff's estate to be
as stated, it becomes immaterial to the present question to
consider what b the qtumium of his interest, unless he can
establish an estate of customary freehold; and such an estate
shall be held to vest the right of soil in the tenant, contrary
to the decision of the Court of Chancery in the Bishop of
Wmton V. Knight. With respect, however, to the alleged
encroachment; if the Plaintiff's land was originally demised
by copy of court-roll for a term of years, or was part of the
demesnes or wastes of the manor, smd the lord for the time being
afterwards thought fit to grant the same land, to be held by
copy of court-roily in fee or for other estate of inheritance, there
being a custom in the manor (as appears to be the case here)
authorising the lord to grant such estates, then, perhaps, it may
be successfully contended that such grants were valid, and not
encroachments^ or contrary to the charter oi Edward III. ; for
the charter of Edward III. only declares that the manors and
estates thereby granted to the Duke of Cornwall should remain
annexed to the dutchy for ever, and not be separable from it by
any subsequent grant of the Crown in favour of any other person.
The words of the charter are, *^ Qua quidem omnia castra,
burgh\ vilVj fnaneria^ Sfc, prtedicto ducatuiy pnesenti chartd
nostrd, pro nobis et hceredibus nostris, annectimus et waimusy
eidem imperpetuum remansur : ita quod ah eodem ducatu aliquo
modo nuUatenus separentur, nee alicui sen aliquibus aliiSy quam
dieti loci ducibus, per nos vel htsredes nostras donentur^ seu
qucmodolibet concedanturJ* Which clause, although it may,
and most probably would, be held to render invalid any enfran-
chisement and sale of the copyhold lands of the dutchy, yet
seems not to operate as a restriction to prevent the Duke of
Cornwall for the time being from granting out any of his copy-
hold lands for any estate warranted by the custom of the parti-
cular manor. And if this be the right construction of the
charter, then the same law will prevail in the manors of the
dutchy as in all other manors, that the lord for the time being.

aowE V. i^UEUTQU.-rjSpeech ofDrfendmt*s Counsel. 33

Queen EUzabeth's eocroachmeiits. (See 6 Coke's
Reparti.^' The Prince's Case: )--r The dutehy
estates are there declared to be inalienable. Tiiat
authority is decisive of this case.

" In the year , an act of parliament passed,

to enable the Duke of Cornwall to grant leases.

" The Sutton Poole Case, decided in the Court
of Exchequer, is another authority in point.

'* In Henry F.'s time, there was an application

though possessing only a life-interest in the manor, may grant
estates to be held by copy of couxt^roll in fee, or iot other estate
of inheritance, according to the cusjtom of the manor, although
to enure for a longer period than the determination of his parti-
cular estate. (1 Watk. Copyhold, 25.) And if grants in fee, or
for other estate df inheritance, have been made from time to time
to the Plaintiff and his predecessors, and enjoyed without inter-
jTupticHi, for fifty or sixty years past, that would be strong, if vat
conclusiye evidence to prove a custom within the manor to make
such grants. And it is conceived that the circumstance of
entries being made by the steward or officers of the dutehy upon
the court-rolls or assession-books, stating demises to have been
made from seven years to seven years, when, in fact, none such
were n^de, not only would not be admitted in evidence to coun-
tervail the custom, but would be a strong feature in the case to
invalidate the authority of the ancient rolls of the manor con-
taining similar entries. In Tavemer and CromwelVs CcLse,
3 Leon. 107, it was treated as recognised law, that a continuance
in f noit by copy fp«r fifty yeaxs, without interruption^ establishes
.^iQiisloiQ, and fixefi a copyhold interest; and, in many modem
eases, usage for a kiss period has been held sufficienit to viurxant
« jury in presumii^ a custom within a manor.

The encroachment by Q^een Elizabeth^ inquired of in The
Primes Case, was an absolute grant, by charter, of p^urt of the
4tttchy estates to str^ingers, thereby severing them from die
dutehy ; which,, it was held^ she had no power to do.

34 RowE v» BRRNTOH, --^'Speech of Defendant's ComiseL

to parliament respecting the dutchy lands ; the
Duchess of Kingston was then in possession of
several parts of them, but was obliged to relin*
quish them, the lands being declared to be in-
alienable.

" A copyholder is entitled to the surface, but
the lord to the soil, and all under it.

'^ By special custom, I admit, the copyholder
inay be entitled to mines, but then he must prove
the special custom, divesting the right out of the
lord, and vesting it in him.

** To this proof I challenge the other side. I
will prove the direct contrary.

" My learned friend is not guarded in the state-
ments which he makes of his case; for the dis-
covery of copper is of very recent date, and if
so, he cannot shew a custom ; * because a custom^
to be worth any thing, must be from time imme-
morial!

*' Neither can any grant be presumed, because
by law it could not be made, the lands being
inalienable.

*' Who then has enjoyed these mines? The
Duke of Cornwall. He is lord of the isoil, and
he has a right to the tin.

* But where an analogy arises from the nature of the subject-
matter, one custom may be evidence to prove another, as 'with
respect to the right of soil in fen-lands, or the profits ^f mines.
(Per Lord Hardwicke, 2 Atk. 189.) So that evidence of -a
custom to take one kind of mineral, or excavate stone, &c.,
would ht admissible to prove a right to take another kind of
mineral, all being equally par/ o/* the soil; and therefore copper
being of recent discovery, is immaterial to the question.

ROWE V. BRBNTON. — Speech of Defendafifs Counsel. 3$

"In the * Laws of the Stannaries,^ (referring to
the book, page 34,) you find the words, ' by de-
livering of toll-tin to the lord of the soil;' but my
learned friend did not read these words! they
did not suit his purpose.

** In free tenements, the freeholders take toll
of tin ; in conventionary tenements, the Duke of
Cornwall takes it, because he is the lord of the
soil.

" As to copper, I shall shew you that he is the
owner as well of this as of tin.

"In 33 Edward /., there is a grant from the
crown to tinners, to dig tin. This charter is con-
firmed by other charters in 14 Edward III.,
Richard II., and 6 Henry VI.

" By one of the Laws of the Stannaries, enacted
in the 11 Charles I., (referring to the book, page
34), * any tinner may bound unbounded lands, accord-
ing to the ancient usage, paying usual toll to the
lord of the soil;' and this, by an act of the parlia-
ment of tinners of Cornwall, 26 George II., is
confirmed to be the law of the country.

" In 27 Henry VIII., it appears by the asses-
sion-roUs, that in the manor of Helston, being also
an ^.ssejssionable manor, the tenant forfeited his
estate for digging tin in his conventionary tene-
ment, contrary to the custom of the manor.

*Mn 35 Henry yill., a, tenant was amerced
for digging tin in his conventionary tenement.
In 9 Elizabeth, there was a grant of tin in the
manor of Tewington. In 1614, James I. granted

36 ROWS t?. BRENTON. — Speech of Defendant's OmnseL

a lease of toll-tin, and of a tin*mine. In 3
Charles /., and 12 Charles 11.^ there were similar
grants of tin in adjoining mines.

" Tin, therefore, has been considered to be the
property of the Crown, down to and through all
this period.

*' In the year 1718, the Duke of Cornwall
granted a lease of the toll-tin and tin-mines.

'* In 1719, a ^similar lease.

** In 1730, a similar lease.

** And in 1761, a similar lease.

" The consideration paid for these leases regu-
larly increased, and proves, therefore, the in*
creased value of the property.

"In 1718, the consideration was 600/.; in
1761, 900/. ; and upon other leases granted in
1797 and 1810, the consideration paid was, in
1797, 4000/. ; and in 1810, 18,600/.

'* The estate of the Plaintiff was formerly held
by one Withkll, who conveyed to Pearce, and
Pearce to Plaintiff.

*' Withiell took a lease from the bounder, and
paid toll-tin. This is the same as if Plaintiff did
it, because he claims under Withiell.

" All this estate is rightly stated to-be bounded.
In 1702, all Nam-mellan was bounded, and under
that bounding is now worked. The tenant pays
rent to the bounder, and the bounder to the lord
of the soil. This is the ' case in the manor of
Tewingtoriy and district of Nans-mellan.

*' Copper was not discovered at an early period

EOWE^ V. BRENTON.— iS/)eecA of Defendant* s Counsel. 37

in Cornwall. The celebrated Sir Walter Raleigh
was made lord-warden of the Stannaries in the
reign of Queen Elizabeth; and he, bringing his
activity and intelligence to bear upon this country,
brought over workmen from the Continent, and
discovered Bome little copper.

" In 1697, a lease was granted by King William
and Queen Mary. There we begin our evidence
as to the leases of copper. It was a lease to
Vincent and Scobell, for 31 years ; rent, one-tenth
of the profits of the mines, to be paid to the crown,
and to account upon oath. We shall shew their
accounts.

*' In 1717, another lease was granted to the
widow of Scobell {Vincent being dead), on the
same terms.

** From 1706 to 1729, we have a return of the
profits j verified upon oath. At first, the returns
were of inconsiderable extent.

** In 1748, when the last lease expired. Sir
William Leman took a lease for 23 years and a
half, on different terms; viz. for a gross sum,
1063/., for the liberty of digging copper.

" In 1762, Sir William Leman being then
dead, a lease was granted to Messrs. Hussey, Daniel,
and others, as his executors, in consideration of
their surrender of the former lease. 600/. was
paid.

" There was a covenant in the former lease on
the part of the lessee, to make compensations to
the tenants.

*' A right of entry being contested by some of

38 ROWB V. BRENTON. — Speech of Defendant's Counsel,

the tenants,* it became necessary to alter the terms'
in this new lease ; therefore it was stipulated,
that the consideration-money should be returned to
the lessees, in case a suit then pending should be
determined adverse to their right of entry.

" In 1786, Mr. Daniel, as the surviving exe-
cutor, took a new lease, for which he paid 1450/,

" In 1810, a lease was granted to Messrs. Wil-
Hams and others, for which they paid 1200/. It
was to dig copper over part of the dutchy estate,
but including the manor of Tewington.

" A Mr. Pearce was the toller, or collector of
dues, for Sir William Leman. I shall call him, to
shew that he has collected tolls, and paid them
over to Sir William Leman.

** I shall further produce a sublease of the
copper in the manor of Tewington, under which
lease copper has been taken.

** My case, if proved, is one of impregnable
strength, and I think my learned friends will
never be able to answer it. I should like to see
their title-deed, but they won't produce it. I am
far more afraid of my learned friend's insinuating

* The case of Browne v, Taylor, (10 East, 189), and authori-
ties there cited, shew, that an action of trespass may be main-
tained, against the lord of a manor for entering upon copyhold
lands to bore for and work mines a:nd veins of coal, unless under
a special custom. And that in the absence of any particular
usage, neither the tenant without license from the lord, nor the
lord without consent of the tenant, can open and work new
mines. See also Grey y. the Duke of Northumberland, 13Ve8.
Junr. 236, arid 17 Ves. Junr. 281.

Row£ V. BRENTON. — Evidence for the Defendants. 39

manner with you, thaaofthe strength of his case!
AH that ingenuity, s^U that eloquence, all that
persevering attention can do, to establish the
Plaintiffs claim, and to destroy that of the De-
fendants^ I know will be done by my learned
friend. ^ I know no one more able to sway the
opinions of a Jury ; and you have had long expe-
rience of him ; for here has my learned friend
stooci, like a tough rock.of Cornish granite, pelted,
but immoveable, by all the storms that have as-
sailed him for, the last 20 years; and here, indeed,
seems likely to endure to the end of time ; though
I hope he will. ere long move off*.^

The following Witnesses were then called for the
Defondants ;• —

Mr. John 'Bay ley (examined by Mr. Selwyn.)
— " I am keeper of the records at the record-
office in the Tower. I produce the following
documents : —

"15 Henry ///.— Translation of a. charter,
the original being in Latin. — It is a grant to the
Earl of Poictou . and Cornwall, of the earldom,
stannary, and all mines, &c., for service of five
knight's piece.

' ** 26 Edward I. — Minister's accounts from the
Exchequer-office at Westminster. Original . in
Latin. Translation produced. They are accounts
of the receiver and steward. Manor of Tewingtan.

* An expression certainly intended to be understood as conveying
only a desire to see the learned serjeant advanced in^professional
rank;< and, perhaps, * moved, off'.ovii of, the way of his com-
panions. He has since retired from the bar.

40 ROWS V. BRENTON.— JSvtd^re/or the Defendants,

Rent, 13*. 7rf. 20*. for fine of tin by the year.
Sundry rents for pastures, mills, woods, &c.
3|rf. for toll of tin by the year. Sundry rents for
fisheries, honey, turbary, &c. Sundry fines, per-
quisites, and reliefs ; for defaults of tenants, tres-
passes, suits of court, and being released firom
office of reeve, &c.; for a conventionary tene-»
ment, from tenant of Nam-mellan, for holding his
lands as before ; and from sundry other tenants
for the same.

"28 Edward I. — Inqutsitio post mortem, taken after
the death of JEdmdnd Earl of Cornwall, produced
from the Tower, made before the escheator.
Presentment of jury. That the earl held in his
demesne as of fee at his death (among other
manors) the manor ofTewington, and appeals of
divers hundreds, &c., with the issues of mines of
tin, wrecks of the sea, &c. at the service of two
knight's piece. In the manor of Tewington, two
water-mills, pasture, wood, fishery. Toll of tin,
worth 6s. per annum. Free tenants, 43 conven-
tionary tenants^ who hold 15 acres and a fraction at
certain rents. 1 1 Villeins, holding 7 acres, &c.

" 1 Edward II. — Charter to PiefTe de Gaveston,
Earl of Cornwall: the king grants to him the whole
county of Cornwall, with all castles, liberties, &c.
&c. &c. Also the Stannary, and all mines of tin
and lead, which were of Edmund, late Earl of
Cornwall, to hold to P. de Gaveston and his heirs
for ever, as entirely as the aforesaid late earl held
the same.

'* 3 Edward 11. — ^Another grant to P. de Gaves-
ton, and Margaret his wife.

sowE V. BtBNToiNf.-^Evuiciice/or the Defendant's, 41

'* 6 Edward III. — Charter, whereby the king
creates his brother, John of EUham, Earl of Com-
wall. Grant of lands, &c.; and confirmation of a
former grant of (inter alia) the manor of Tewington^
with the appurtenances.

Mr. Berffomn Tucker, (examined by Mr. Sel-
wyn.) — '* I am clerk in the office of the Dutchy
of Cornwall. I produce the following assession
rolls.

'' 7 Edward III., purports to be an assession
roll of several manors in Cornwall. Contains a
commission, and return thereon ; the commission
being letters missive from John, Earl of Cornwall,
to divers persons."

Mr. Serjeant Pell. — " I object to this evidence.
This roll seems to set forth certain rights which
had run out, and the claim of the lord to let those
lands again. I submit that this roll would not
have been evidence, if read one year after it was
made, and therefore cannot be now. It is a mere
declaration by the lord's agents as to the lord's
rights, and cannot be evidence for those claiming
under him."

Mr. Serjeant Wilde. — " The original commis-
sion should be shewn, not this recital of it."

Mr. Justice Parke. — '' I think I am bound to
admit this in evidence."

[ITie rolls were then proceeded with.]

** The commission is addressed to four persons,
styled our dear bachelor, our dear valet, our
dear steward, and John de Hockley. The return
states an assessment by the commissioners of all

42 ROWE V. BRENTON. — EvidmcefoT the Defendants

the lands, except as to the third class of tenants,
because it did not appear to the commissioners to
be convenient. The manor of Tewingtan is in-
cluded in the roll. There are several tenements
of Nans-mellan under the head of free convention''
arieSy viz. Philip de Nans-mellan, to hold in con-
ventionary for seven years; 11*. rent, whereof
2s. 6d. new increase. Fine. Suit and service, and
he did fealty, &c. Also similar tenements to
John de Nans-^mellan, Jordan de Nans-mellan, and
Gregory de Nans-meUan. Also in the same manor
to Nicholas WysOy a tenant to hold in con ven-
tionary for seven years. Also in the manor of
Tybeste.

Mr. Serjeant Pell. — " I object to this, as ap-
plicable to a different manor."

Mr. Attorney General. — " It is admissible; the
tenures of the estates within the two manors were
similar." *

Mr. Justice Parke. — *' I think the evidence is
admissible."

* The general rule is, that a custom in one manor or district is
not admissible evidence to prove the existence of the same custom
in another manor. But several cases appear to have decided, that
if a peculiar tenure is common to two or more manors or districts,
and the custom in question is incident to the tenure, then the ex-
istence of the incident custom in one manor is evidence of its
existence in the other also. (2 Starkie on Evid. 449. 1 Phil,
on Evid. 162.) Therefore evidence to shew Xhat there were other
customary tenements in the several other dutchy manors, and
what was the usage with reference to working the mines under
those customary tenements, seems to have been rightly admitted
in this case.

ROWE V. BRENTON. — Evidence for the Defendants. 45

[The evidence accordingly proceeded, and similar
lettings of several tenements in other manors,
mentioned on the same roll, vsrere read ; it ap-
peared that some of -the tenants claimed to hold,
not in conventionary, but in fee.]

"11 Edwm^d III. — Charter of the king to his son
Edward the Black Prince, described as Edward
Earl of Chester, ourjirst-begotten son, created Duke
of Cornwall, and girt with the sword, &c. We
have caused all things pertaining to the said
dutchy to be inserted in this charter. The Shrie-
valty, to which the duke is to appoint, free of the
crown. The castle, borough, and honour of Laun-
ceston, with the park there. The castle and manor
of Trematon, 8gc. f Tewington, with appurtenances,
&c. &c. With all wrecks, &c., the Stannary^ and
coinage of Stannary. The profits of the courts of
Stannary and mines, except 1000 marks granted to
the Earl of Salisbury out of the coinage, until, &c.
To hold to the said duke and his heirs, Dukes of
Cornwall, for ever, annexed and united to the said
dutchy, for ever, to be inseparable, and to revert to us,
or future kings of England, in case there shall be no
Duke of Cornwall, and until such is born, S^c.

** 21 Edward III. — Assession roll. Free conven-

t From the words of this charter, as set forth in the Prince's
case (8 Co. Rep. 9), it appears as if tewington was not then a
manor. Five manors only are specified, which seemsto exclude
the idea of the other places therein mentioned (including Tewing-
ton) being manors. Observing this, and the non-production of
ancient minutes of any other courts having been held than the
courts of assessioriy — which possibly were rather audits than
manor'courts, — query, whether there is a manor of Tewington?

44 ROWS V. BRENTON. — Evidence for the Defondants.

tiomxieBin Tewington. Nans-meltan. Philip deNans^
mellan has taken what he before held ; fine 20^. ;
rent, 11^^ and done fealty, &c. : to John de Nam-
mellan, a similar letting.

** It appears, that one of the four tenements of
Nans-mellan which paid lis. rent, had been di-
vided into two tenements, paying a rent of 5*. 6d.
each. So that, in the whole, there were now five
tenements in Nans-mellan.

*' 38 Edward III. — Assession roll. A commis-
sion set out, and return of the increase and de-
crease of all fines and rents since the 30 Edward
III. An increase of the renewal fine to John de
Nans-melian, because others wished to take the same
land, and overbade each other to that sum. A de-
crease of fine in another tenement, because all the
tenants of this vill had left their tenures; this was
the tenement of Trenewith, in manor of Tewington.

" 45 Edward III. — Assession roll. Free conven-
tionaries. Nans-mellan. John de Nans-mellan
has taken the same tenement as before, for seven
years. Fine decreased by half a mark, because
increased by envy of some others at the last assession.

** 20 Henry 6. — Assession roll. Shews a power
of distress incident to a letting to one of the free
conventionary tenants;

** 9 Edward IV. — Assession roll.

[This roll, appearing to be imperfect, was not
admitted.]

** 20 Henry VII. — Assession roll. Manor of Tew-
ington, shews that tenants had not power to let
without license, and shews a heriot reserved.

fiowE v. BBENTON. — Evidence foT the Defendants* 46

*' 22 Henry VIT. — Assessum roll, contains four
entries as to Nans-mellan, each tenement contain*
ing 11 acres. (One entry read, shews heriot
reserved.)

" 20 Henry VHL — Assession roll. Power to
commissioners to let for twenty years, or less^
four tenements or messuages in Nans-mellan,
each containing 11 acres.

** 27 Henry VIII. — Assession roll. Commis-
sioners to let for seven years, or within that
term.

" In all the rolls, when perfect, all the dutchy
manors, including Tewington, are inserted.

'* Manor of Helston-in-Carrier. — Roslyn tene*
ment. Presentment by the homage, that John
Hayne, a free conventionary tenant, had dug tin,
(fodiavit stannum,) in the several lands belonging
to his tenure, and had permitted others to do so^
contrary to the custom of the manor, and had
therefore forfeited his tenure. But the tenant
was fined 44*., and ordered to fill up the shafts,
and not to dig, or permit others to dig there in
future, on pain of forfeiture, and a fine of 60/. to
the lord.

** And again, John Bodulgan, Esq., hath taken
out of the hand of the lord the king, by reason of
the forfeiture of Richard Thomas, by this, that he
cut down and sold three oaks, growing on his
tenure, contrary to the custom of the manor, as is
presented by the homage in this behalf.

*' Tewington manor. Free tenants. Described
as holding by socage, and doing suit of court from

46 ROWE V. BRENTON. — Evidence foT the Defendants.

tluoee weeks, to three weeks. Peter Edgecumbe,
Knt., holds 7 acres, bjf socage, with 14^. for a fine
pf tin, and suit of court.

** All free tenants are not stated to hold bjf socage
except that the words ut supra seem to refer to
the foregoing entries.

The word tenet is used in all the entries of the
free tenements. The word cq^iV, is applied to
the canventianary lettings.

" There are no other rolls or entries in the
dutchy office relating to this period of time."

[It appearing in answer to questions put by De-
fendant's counsel to the witness, who produced
the assession rolls, that after a certain period, the
rolls as to the seventeen manors became divided,
and that some of the rolls which had been read
referred to ten manors only, an objection was
taken to the evidence of the rolls on that account.
The clerk stated, that fourteen hundred weight of
papers had been brought from town. A selection
was made of such rolls as were thought to be
material ; and there would have been five or six
tons weight, if all the assession rolls had been
brought down. This selection was also objected
to. But]

The Court considered that all 'vvhich was neces-
sary and proper had been done. .

Mr. John Bayley (cross examined by Mr.
Carter.)

*' All the rolls are brought down which contain
Tewington manor; that was the object of the
selection.

ROWE v.^RE^fToii .—Evidence for the Defendants, 47

*^ There are no signatures, or any introductory
or concluding words, which shew that the re-
turn was a return of the commissioners. On the
rolls the commission is set out.

" Among the rolls not brought there are several
of later date. About the beginning of Charles IFs
reign the rolls end, and the assession books begin.
During the protectorate there was a parliamentary
survey. There are some papers called Articlei^
and Answers. 1 have heard so. I don't know.
There are certainly two rolls with articles and
answers of the same date annexed.

" 9 Edward IV:'—[P^Tt of the rolls of this date
were read by Mr. Carter's desire, in order to
ascertain the similarity or dissimilarity of entries
as to the free tenants.]

" 1794. 27 September. — ^Assession book. The
last of the manor. Relates to the manor of Tewing-
ton. Entry, court held at St. Austle, by virtue of a
commission under the privy seal of the Prince of
Wales, before commissioners and a j ury . "

Mr. Serjeant Pell. — '' I submit that the entries
in the books of the Duke of Cornwall are not
evidence against the Plaintiff.

Mr. Attorney General. — '* These are rolls of the
manor.* And it appears that Pearce is one of

''* The principle upon which the court rolls of manors are evi-
4ence, is, that being public documents, to which the tenants of the
tnanor are entitled to have access, they are presumed to be corr
erectly kept. But from the subsequent evidence relative to the
assession books, it rather appears as if they were private docu-
ments, kept in London, to which the tenants have not access;

48 ROWS V. BRBNTON. — Emdencefor the Defendants,

th^ conventiooary tenaiitB, from wIkxq Plaintiff
purchased. The rolls apply to Nans-melUm.

Mr, SeijeafU PelL — " I claim Nans-mellan, aa
against the Duke of Cornwall, and they must first
shew that I hold under the Duke. When they
prove me a tenant of the manor, then .1 admit that
the books are evidence against me/'

Mr. Justice Parke. — " I think the evidence is
admissible. The Plaintiff's land appears to have
been part of the dutchy lands ; and if Plaintiff
claims enfranchisement, th/en he must shew it, as
that is an affirmative."

[The comndsmn was then put in, being a separate
document from the book of assession ; and under
the authority of which the commissioners held
their court.]

" 1794. — Assession book. Entry, Tewingtan
manor* Under the bead of conventionary tene-
ments. Nans-mdlan. Tenants> John Pearce,
Edward Cart hew, ^ward Carthew and John Pearce
in shares, and Thomas Caerlyon, several tenements
to hold as aforesaid.

" 1752. — Assession book. Conventionary te-
nements let ' to hold as aforesaid.'

and it is not distinctly stated, that they are transcripts from the
ori^nal rolls, or minutes ; but it is rather to be inferred, perhaps,
that entries are made of contuiued lettings from seven years to
seven years, far the sake of umfoimity ia the books; when in feet
no smdi lettings take place. Q«iery, how is this ? The onpMi
rolls are stated to remain in the steward'^ hands, and seem sot t9
have been produced upon this trial ; nor was there any ooixqpariaiCMi
to ascertain the agreement or disagseement between the comt
n^ls and bodro of assession, relative to the same period.

ROWE V. BRENTON. — Evidence for the Defemlants. 49

" 1663 fo 1724.— Assessioh book. In 1663, con-
ventionary tenements let to hold from feast of St.
Michael for seven years. 8^. rent. Fine, 9^. ; and
to do suit at court from three weeks to three
weeks. To be reeve, &c. when elected. To pay
heriot on death. To sustain the houses, edifices,
&c. of his tenure, and so to leave the same.
There are subsequent entries, * to holdy ut swprh.^

*' Nans-mellan entries are, John Rom, in his own
proper right, for twenty-two parts in forty-two
parts divided. Jokh Bunny, on surrender of Philip
Bennett, on death of Jane B. his mother, and
John Bunny, in his own proper right, for twenty
parts of the aforesaid forty- two parts, took one
messuage and twelve acres* of land, English; half
an acre of land, Cornish, late of John Forth,
which John Rous, in his proper right, for twenty-
two parts, in forty- two parts divided, — Jane Ben-
nett, widow, and John Bunny, after the death of
Simon, his father, for twenty parts," &c. &c.

Mr. Bergamin Tucker (cross-examined by Mr.
Serjeant Wilde.) — *' I am clerk in the dutchy office.
Have no particular office there. I have access to
the books. Copies of the court rolls are sent up
from the country to the office. They contain ad-
missions of the tenants. They are now in Lon-
don. The assession books I consider to be the
original court rolls. The steward keeps the ori-
ginal papers from which the books are made up.
They are not on parchment: sometimes only
minutes or extracts. I have never seen any

£

fiO sowE V. BRENTON. — Ei}idencefor the Defendants^

admissions relative to Nans-mellan* I was Dot
desired to search for them, or to bring them here.
I have been in the dutchy office for four years.
I receive the papers from the steward annually.
I did last year : I believe all.

** These rolls are kept by the deputy auditor in
London, Mr. Abbott. I have seen the papers which
the steward sends.

" The court rolls are surrenders from one tenant
to another. I extract them every year. They are
to hold to tenant and his heirs for ever. There
is a conveyance^ when there is a change of
tenants."

(Re-examined by the Attorney GeneraL) —
" The documents which the steward sends up
are kept in the dutchy office. They are copies of
surrenders. We; put them by. They are sent to
us for safe custody. I think we have none before
1660, the period of the Restoration. We take a
note from them of the surrenders and alienations
of the lands. Sometimes mark them in the asses-
sion book in pencil, for the purpose of seeing that
an acknowledgment is paid, which is done at the
next assession. I have attended two assessions,
the last, and one other."

Mr. Abbott (examined by Mr. Selwyn.)

— " The assession book is made up in the country
by the deputy steward. The commissioners brihf;
it home, and deposit it in the office.

'^ The court rolls are, annually returned. I
don't know how often the courts are held. The

RowB V. BRENTON. — Roidencefor the Defendants, 61

rolls are returned at the audits. They are some-
times compared with the assession books, to see
what changes have happened from seven years to
seven years. Fines are due on surrenders. The
commissioners ascertain from the court rolls what
changes have taken place.

** The books are made up by the stewards in
the country, and brought to the commissioners at
the assession. They make the alterations, as you
see, in red ink, in the book."

(Cross-examined by Mr. Serjeant Pell.) —
** There is a new take by each tenant at the
assession. I can't say they all attend, but all
are called to take their estates. They are conven-
tionary tenants, from seven years to seven years."
[An entry read of a new take.}

** Tewington manor was sold in 1798. The last
roll is in 1794.

^^ Mr. Btcckton, Plaintiff's attorney, applied
at the dutchy offikse to inspect rolls, &c., and was,
of course, refused, Mr. Carthew also applied, and
was refused. PlaintijfF has been making many
applications for the last two years."

[ Witness was desired to refer to the assession books
of 1794:]

* * 1 794 . — Assession book. After Nans-mellan .
No. 20. Tenement taken to hold as aforesaid.

*' I don't know that I have brought all the docu-
ments which Plaintiff required, (k subpoena duces
tecum, was served on me and Mr. Tucker.) It
would have obliged me to bring all the office* I
brought all which I thought material. I have all

62 BO WE V. BRENTON.- Ei)idencefor the Defetidants*

the surrenders and admissions from 1660 to the
present time : they are in London. M?\ Tticker
(the witness) was also named in the subpoeiia«
He, more particularly, has reference to these do-
cuments. Tucker is a nephew of Mr. Tucker of
Trematon Castle y who (I believe) is a dutchy lesseq.
I don't know that he has an interest in this cause.*'

Edward Coode, Esq. (examined hyjlr. .)

— " I have been steward of the manor of Tewing-
ton from 1801 to 1823, when the lord died. The
manor of Tewington was sold, in 1798, for redemp-
tion of the land-tax. I know the tenement called
Nans-mellan ; it is the name in my books; the
same estate now occupied by Plaintiflf. I have
never attended the assession courts."

(Cross-examined by Mr. Carter.) — •" Mr. Car-
penter is an. officer of the dutchy, and steward of
some of the manors. Mr. Rashleigh was steward
of Tewington manor before he purchased it ; some
years before; from 1782 to 1790, I believe. The
widow of a conventionary tenant has a life estate
in the whole tenement. It goes to the eldest son or
eldest daughter by inheritance, or to second, third,
or other sons. There is a custom to demise for
an indefinite term of years, and without license."
{Examined by the Court.) — " Nans-mellan is the
same as the Plaintiff's estate."

Mr. Charles Coode (examined by Mr. .) —

*' I was steward to some of the assessionable
manors for 20 years. The presentments are
made up at the annual courts. Copies of them
are transmitted to the auditor. The originals

\

RQWE V. BRENTON. — Evidence for the Defendants. 53

remain in t^e hands of the steward. At the
expiration of seven years, the steward makes
out two assessional books, with such alterations
as have taken place in the teven years. At the
assession the tenants are called over ; and, where
no alteration has taken place, each tenant pays
6d. When an alteration has taken place, then, I
believe, 1^. is paid for each admission. It is paid
to the office, not to me. The manor courts meet
annually at Michaelmas. I keep the original
minutes of presentments, and send copies to the
dutchy office. I keep the originals afterwards,
as steward. The admissions are made out on
stamps, and given to the parties."

Mr. Justice Park. — " The customs of manors
maybe proved by the steward, without producing
surrenders, or other specific documents."

Mr. John Bayky produced the following docu-
ments ;—

** 33 Edward /. — Charter. For the tinners of
Cornwall. Working tinners to be free of pleas,
&c., except before the warden of the Stannaries.
Leave given to dig tin, and turves necessary for
burning tin in the wastes and moors, and to divert
water for the purpose of washing tin. The warden
to hold pleas between tinners.

" 6 Henry VI. — Charter reciting and confirming
former charters. It is merely a repetition and
confirmation.

** 12 James I. (1614,) — Grant of tin and tin-mines
to Peter Lawyer, by indenture. between the Prince
of Wales and the grantee."— Enrolment read.

54 noWtv.B R SN TON ir^EcideHce for the Defendants,

Mr. Serjeant Pell. — '^ I object to this being
received in evidence^ unless it is first prored that
the original deed was lost."

Mr, Attorney General. -r-^^ The case of Humble
y. Htmty ijolt's N. P. Gases, p. 601, is an aoiliio-
rity in point. This deed is of *uch antiquity thdt
we need not prove its loss. There are also severlal
cases in which enrolments of the deputltiofns of
gamekeepers by clerics of the peace have been ad-
mitted as evidence^ withcmt proving the loss of the
deputations,, beeause they are ancient documents."

Mr. Benjamin Tucker being recalled, proved that
search had been made in the dutchy offiee for the
counterpart of ihje lease in question, but tha^ it
could not be found.

Mr Justice Park. — *^ I shall admit this evi-
dence upon the authority of the case cited, and
because, at this distance of time, it must be pre-
sumed that the lease itself cannot be found ; and
I think the dutchy office was the proper place of
custody for the counterpart."

The foUoumg leases, S^c, relative to tin, were
then given in evidence :—
" 5 George I. 1718. 4th December. — Lease.
George Prince of Wales to Rebecca Vincent , widow
and executrix o{ Henry Vincent, in consideration
of 600/. paid as a fine, and of rents, covenants,
&c., agreed to be paid and performed. Demise of
one moiety of toll, and toll-tin within the manors of
Helston, Tewington, and a moiety of the manor of
Tewernale. Also moiety of toll-tin in several other

mowE V. BViEvrov. ^Evidence for the Defendants. 55

manors. Also moiety <^ tin, and tin mines found,
-and to be found, within the enclosed lands of said
manors. Power to lessee to enter lands and dig
for tin. And covenant by the lessee to dig and fill
up shafts, &c., according to the custom of tin
works in Cornwall, and to render an account an-
nually of all tin raised.

^' 1719. loth March. — Lease to Nicholas

m

Vincent (counterpart), in consideration of sur-
render of lease of moiety of tin and toll-tin, of
600/. paid as a fine, and 30/. as interest of the
jsame paid to Rebecca Vincent, and of arrears of
rent paid by lessee. Demise to Nicholas Vincent,
his executors, administrators, and assies, of ^//
toll-tin which shall arise, &c., within manor of
Tewington, and other manors. And alt tin mines
found, or to be found, within the enclosed lands of
said manors. To hold to Nicholas Vincent, for
fl9 years, if Rebecca Wilson, said Nicholas Vincent,
and Edward Bacon, or either of them, should so
long live. Rent, 36/. 14^.

" 1730. — A re-grant of the same property, in
consideration of the surrender of the former lease.

" 1738, %th May. — Enrolment of lease. The
Prince of Wales to James Donithorn and Isaac
Donithom, in consideration of surrender of former
leases, and of 300/. paid as a fine. Demise of all
toll and toll-tin. Sec, as before, in same manors,
for 99 years, determinable with lives.

'* 1761, 1 George HI. — Letters patent. Fine,
900/. Demise to Isaac Donithom of all toll, or

.•^

^

56 ROWE 17. BRENTON. — Ewkfieefor the Defendants.

farm of tin, or tin-toll, in the manors of Hektan,
Tewington, Sec, and all tin mines foaind, or to be
found, in enclosed lands*

" 1797, 14th August. — Lease. The Prince of
Wales to the Honourable Richard JValpole, William
Curtis, and Thomas Wood, trui^tees of the estates

of Donithorn, who \v^as administrator of his

father. Consideration, surrender of former lease,
and 4000/. as a ]&ne, and of rent reserved. Demise
of all toll, farm of tin, or tin-toll, arising in all dutchy
lands in Cornwall, and tin mines found, or to be
found, in enclosed lands. To hold for 99 years,
determinable with lives of James Donithorn, aged
54, Isaac Donithorn, aged 27, and William Curtis,

*

aged 15 years.

" 1810. Ibth August. — Lease. Prince of Wales

to Edward Smith, of Castle, in the county

of , in consideration of surrender of lease

of 1797, and 18,500/. paid as a fine; viz. 12,500/.
paid to Donitkorn's trustees, and 6000/. to the
Prince ; — of all farm of tin, or tin-^toll, in all the
dutchy lands in Cornwall.'.'

Mr. Attorney General. — " The foregoing leases
related only to the tin : the following have refer-
ence to copper : —

*M697. lO^A/w/j^.— Enrolment of lease. Wil-
Ham HI. to Henry Vincent and Francis Schobell,
of all those mines and minerals in the lordships,
manors, precincts, or territories within the dutchy,
opened, or to be opened, and full power and leave
to dig and open soil of all lands within the dutchy.

&awB V. BEENTON, — Evidenci^or the Defendants. 57

" {Except all royial mines, and mines of tin,
and all other minerals in the dutchy now granted
to any persons by the crown, and all tolls and
other dues by custom due to us or to our farmers.)

** To hold to the lessees, their executors, admi-
nistrators, and assigns, for 3 1 years, rendering
yearly one-tenth of the annual profits of the mines
and minerals, to be accounted for annually upon
oath.

^* Covtmnt by lessees not to enter on tenants'
lands without permission of the tenants.

*' 1717. 2d March. — Lease. George Prince of
Wales to Rebecca Vincent (executrix of Henry Vin-
cent). ^jA Francis Schobell, in consideration of sur-
render of former lease.

" Of all mines and iKxinerals in dutchy lands.

" (Except all royal mines, and tin mines, and all
existing leases). For 31 years. Rent, one-tenth,
to be verified upon oath." Enrolment read. Coun-
terpart could not be found.

Mr. Tttcker.-^ — "I produce the receiver's ac-
counts of monies paid . by the lessees under the
foregoing leases for several years.

" 1705. -r- Receiver's account. Entry. Henry
Vincent and others, farmers of mines and metals
within the dutchy.

''1718. — AflSdavit of Rebecca Vincent of clear
profits, over and above disbursements, amounting
to 300/. and upwards

"1718. — Receiver's account. Entry. Mines
and minerals. Rebecca Vincent and Francis Scho-
bel. — 62/. 9^. Id. money received."

68 ROVE V. njiEvrQn,r-^Emlen€efcr the D^ndanh.

[The further reading of these accounts wa£(

not proceeded with, the Defendant's coun*

sel appearing to acquiesce in the fact that

monies were so paid.]

* ' 1 742. 3d /i^.— Enrolment of lease. Frederick

Prince of Wales to William Lemon ^ of Truro, Esq.,

in consideration of 1063/. 7^. 2 J. paid.

'* Demise of all those mines and minerals what^
soever, found, or to be found, in any places what^
soever in all lands of the dutchy of C&mwall, in
the several counties of Cornwall and Devon. (Ea^^
cept all royal mines, and tin mines, and former
grants, and all tolls, &c.) To hold for 23f years^
from 3d March, 1748, at rent of 11/. 4^. per
annum. Covenant to make satisfaction to tenants
for enteritig into their lands before entering there-
on. And, in case suit diould be prosecuted against
lessee for the purpose of trying his right of entiy,
then that lessee should not settle with the tenant
without consent of the dutchy officers.

* ' 1 763 . 1 3th June. — Enrolment of lease to Hussey
and others. Recites lease of 3d July, 1742, and
that said William Leman was deceased. Sur*
tender of said lease by Hussey (as one of Lemari^
executors). Fine paid, 600/. ' Which saidjvne is
to remain in the hands of our receiver until the suit
now depending in our Court of Ejpchequer* , touching
our right to said mines and minerals y is determined ;'
and to be returned, or held, according to the

* It is believed no record or trace of the proceedings in this
suit has been discovered.

HQW £ .^« Bjft KJvrro n .•^Mi^mejor the Defmian^i 59-

4ecUiob df that 9uit* Demise of all mioes and
i^kieHrals wbatsoeyer m dutcby lands. (Except
as before;) For 31 years> from 4th December,
I7&2^ Govi^miDt by lessee not to compromise
with t^niEiats.

. '* 1788. 'idFcbrmrjf. — Counterpart lease. The
Prince of Wales to Thomas Daniel, as surviving
exec»tdt and trugrtee of William Leman.

" Surrender of former lease.

" Fine, 1,440/.
, " Demise to Thomas Darnel, his executors, ad-
ministrators, and ass%ns, of sdl mines and minerals,
i^hatsoever m the dutchy lands in Cornwall (ex-
cept as before), for 31 years, from 4 December,,
1786.'^

J£r. Twker (cross-examined by Mr. Serjeant
Wiide.)''^-''' I am not aware of any other enrol-
ments besides these books in the dutchy office ;
they are enrolled before the auditor."

The Com't then adjourned until to-morrow
morning. '

Saturday, Wh March, 1825.

The reading of the documentary evidence was
continued as follows : —

" 1810, 11 January. — Lease. The Prince of
Wales to John Williams, the younger, Michael WU-
Hams, and Edward Williams, all of Scorrier House,.
^xiA Edward Smith. Consideration, 1,200/. Fine,.
and rent, and covenants. Demise of all and all
manner of mines and minerals which shall be
had, raised, dug up, or found in any lands or

60 RowE V. BBBNTON. — Evident for the DefentUmis.

places whatsoever within the several lordships,
manors, precincts, or territories, being part of the
possessions of the dutchy of Comwally in the
county of Cornwall^ with liberty to break up soil
and ground, and to drive any adits and levels,
sink shafts, and make buildings for dressing ores,
making reasonable satisfaction to tenants and
occupiers ; and to turn and use any waters and
watercourses, and do all other things," &c.
\_No more of this lease was read.'] . *

*' 50 Edward III. — Charter granted to Richard,
the son of the Black Prince, after his father's
death, creating him Prince of Wales, Duke of
Corfmall, and Earl of Chester.

*' Grant to him of two-thirds of the dutchy
estates, mines, stannaries, and coinage of Corn-
wall and Devon, and profits of courts, &c. (one-
third bein^ reserved as the dower of the widow
of the Black Prince)."

[The assession rolls of the reigns of Elizabeth and
James I., down to the commencement of the
assession books, were produced and looked at, to
shew that they relate to the manor of Tewington,
and that they notice free and conventionary
tenants.

The rolls of 19 Elizabeth, 15 James /., and 2
Charles I. (which is the last roll), all admitted to
be in the same form.]

** 19 Elizabeth. — Assession roll. Entry: Manor
oiTrematon. Title, Conventionary Tenants. John,
Bawdon,hy gvBiit of the commissioners, on the.
forfeiture of Richard Treville, for certain causes

ROWE V. BRENTON. — Evidejuefof the Deftndants. 61

after specified, took one messuage and twenty-six
acres for seven years. Rent, 8^. Fine, 6/. Pay-
able in first six years,' and on the»seventh year he
shall be quit. To be reeoCy &c., when elected ;
to attend court, &c. Best beast as heriot, and
fealty.

** Condition of grant, according to the custom, is,
that the former taking of Treville was special, vii.
that he should repair, reside, &c., on. pain of for-
feiture, as appears by assession roll. , The for-
feiture alleged was an assignment by tenant.

" Increase of fine, 8/."

Mr. Richard Thomas (examined by the Attorn^
General.) — *' I am a surveyor: have made a sur-
vey and plan of Plaintiff's estate. There was a
mine called Sandy Cocks, a stream work* There is
another, called Tin-Jkld''
[Plans put m.]

John Organ (examined by Mr. .) — "I

am a tin-bounder. ' I know Nans-mellan. Have
renewed bounds of it, 36 years ago, including the
whole estate. Worked at a mine in Nans-mellan
60 years ago. Tin works. Mine networked since.
The duke's toller wasJbAwPo/&iw^Aorw. The bounds
were received by Squire Carlyon and Squire Tre-
mayne; one half to each. Bounds are psdd, part to
the prince, as the lord, half to. the lord, and half
to the bounder. John Polkinghorn was the. toller.
He received for the lord. His master was John
Donithorn. He took up the toll-tin all through the
country. The rest of the toll- tin was paid to
Carlyon and Tremayne, who were the bounders."

[Mr. Attorney General heve reminded the
Court, that Mr. Carlyon was one of the
conventionary tenants of Nans-tnellan.']
•** I afterwards worked for nine or ten years at
Nam-mellan^ I helped to divide the tin between
these people. I knew Mr. Withiel. He lived upon
the land, now Plaintiff's estate, at that time, be-
fore the mining works began, and afterwards for
a long time.

** I know Sandy Cocks and Tin-Jield. I worked
then in all the stream myseif : it was higher up
than Lemellan Moor, but in the same bounds and
set"

(Cross-examined by Mr. Serjemit Wilde.) —
** The part I bounded was occupied by With4et^
I did not bound any land in Nans-mellan but what
Withiel occupied. Lemellan is the part I then
bounded, and no other part."

(Re-examined by Mr. Attorney General.) — *' The
tin-bounds did not include the Moor."

(Again cross-examined, by Mr. Carter.) — '^ I
know Trenoath. I bounded part. I don't know
whether Mr. Lambe occupies it : it is in Tewington
manor. Part of the mine is called Wheal Fat
Works; it is within bounds, but not in Lemellan
bounds. Trenodtk bounds .run into it. Fat Works,
is all bounded. I bounded them for different
people."

(Again examined by the Attorney General.) —
** Trenodth is a mile and a half from Lemellan.''

Joseph Geach (examined by the Attorney General.)
— '* I am "a bounder. Know Lemellan bounds.

ROUTE t;. BRKKTON.^ — Evidence for the Defendants. 69

Have renewed them often, for the last 30 years.
Tin was got there. I knew Polkingkorn: he was
the prince's toller : he received dues. Bounders,
in general, do not work in bounds, but set it to
other people. When tin is raised, notice is given
to the bounder. Those who have claims then at-
tend, and it is divided according to the shares.
There are often divers shares belonging to divers
gentlemen. Toll is paid according to the bargain
made with the person who takes the set. The lord
gets a portion of the toll. A 14 th or 16th dish goes
to the lord. Ge;>ierally an eighth is divided be-
tween the bounder and the lord.

** Withiel lived at Lemellan : it was before my
time.

*' In 1821, by Mr. Rashleigh's authority, I
granted a set, to a Mr. Gilly of tin-bounds in
Lemellan.^'

[Mr. Rashkigk's authority to witness, dated
in 1821, to grant the set, was produced.]
'* Sets are generally granted by word of mouth.*
If the «et be large, then a witness is generally
called in."

[Mr. Rashtdgh's authority recited that he
was authorised by Mr. Tremayne and Mr.
Carlyon, as respected their interests.]
" Mr. Rashleigk was then the lord."

Mr. William Pearce (examined by Mr. .) —

" I know Lemellan. My father had a mortgage of
it about 40 years ago : it came to me afterwards-

* Qtusre, is this the fact ?

f ■» »

64 BOWE t?. BRENTON. — EvidemefoT the Defendants.

as his heir and executor. I conveyed it to Mr.
Tr(M>rf about 1812."

Mr. Coode, (examined by Mr. .) — *' I

produce court roll of 1814.

** Entry. — MoxxorofTetmngton. William Pearce,
heir of John Pearce, late customary tenant. Sur-
render of Nans-mellan. iParcel of customary lands
of said manor. Fine paid by Wood to Pearce. Ad-
mission of Benjamin Woody to hold to him and his
heirs for ever, according to the custom of the manor,
at the ancient rents, &c.

" There has been no subsequent conveyance by
Woody so that the legal estate is now vested in him/*

(Examined by the Court.) — ** I was appointed
steward in 1801. My rolls begin in 1803. I
have Mr. Charles Rashleigh's entries, beginning
1781 : he was then steward, during the minority
of the Prince of Wales, the now king: he was
steward to the crown. He bought the manor in
1798, under the land-tax redemption act."

Mr. William Pearce (examination continued.)
— *' I remember the Tin-pot Field mine for forty-
seven years. I remember Sandy Cocks mine.
The Tin-field mine was in Lemellan. Polkinghome
received the duke's part of the tolls for Nans-
mellan.

" Sandy Cocks was not all in the enclosed lands
of Nans-mellan. When it was first worked it was
out oi Lemellan. After it had been worked for some
years it extended into Lemellan Moor.

** Polkinghorn received toll of the Sandy Cocks
Adventurers. The hedge on Lemellan Moor was^

/

ROWE V. BRENTON. — 'Evideticefor the Defendants. 66

torn down by them. The hedge divided Lemel-
Ian Moor from Merthyn Moor and the Common
Moor. They worked through the hedge. My
father had the hedge built up again. He paid one
PolsoOy the occupier of Lemellan under him as his
tenant, for doing it, by the yard, and the Adven-
turers of Sandy Cocks repaid him. It was a stone
hedge. By the Adventurers, I mean the people
who worked the set.

*' I knew Withiel: he occupied Lemellan about
forty year« ago. I don't know how long he occur
pied, but for many years,

(Cross-examined by J/r. Serjeant Wilde). —
'* Sandy Cocks was a stream work for tin ; that is,
work on the surface, not shaft work, which we call
a mine. Withiel is dead."

Polsoo was called ; but the Plaintiff's

counsel admitted that his evidence should be
taken to be the same as of the last witness. - '

The following document was then put in and
read:

** 27th November, 1798. — Certificate of the Sur-
veyor-General, thsit he had contracted with Mr.
Rashleigh to sell to him the manor of Tewington,
part of the ancient lands of the dutchy, and all
rents, &c. : and also lands at St. Austle, &c. part of
said manor: with the exception of all mines, &c.,
leased in 1792 to Rashleigh, for 99 years, deter-
minable with lives." •

The conveyance to Mr. Rashleigh was then put
in, and partly read.

ZTT

66 HOWE V. BR EN TON. — Evidence for the Defondants.

*' Except and always reisenred to the Prince of
Wales, and his successors, &c., all mines and
minerals within and under the said manor,

r

lands, &c., with power of entry to the grantor, his
lessees, &c.

Hannah Withiel (examined by Mr. Selwyn). —
" I am the widow of William Withiel. He for-
merly ^ occupied Lemellan. I remember the mine
in the Tin-pit field. It was worked whilst my
husband occupied Lemellan. He had part of the
work of the mine for five or six year». I donN:
know Polkinghom. I have heard of hiui. My
husband was a cotiventionary tenant for fourteen
years. He paid his proportion of the dues — the
Prince's dues.

Mr. Francis Paynter (examined by Mr. Man-
ning). — Produced the following documents, which
were put in, and partly riead :

" October 29, 1768.^- Lease, HmseyzxiA othere
to — Ferrers J'

[Mr. Attorney -General. — ^^Mr. Hussey wa»
lessee of the copper ores, under the Duke of Corn-
wall. He was a trustee under Sir WilUam Ze-
Tnan's will. This is a sub-lease, under which cop*
per was worked, and the dues paid.}

" The lease contains a grant of free liberty to
dig for copper-ore, lead-ore, and all other minerals,,
except tin, on St. Austk Doum, &c., as far as the
dutchy lands extend.

*' March 1793. — Sir William Leman to John
Benallick. Grant of liberty to dig for cop^^er-ore.

Kowp v.. BViEjsiTOif. -^Evidence for t^e Defendants. 67

lead-ore, &|:., (as ia the forjpfter. lease) oa »Sf, ^t«//e
I)Qwny in Tewington ma^or,

''l>Ji<|ic, 1 793. -—^ The S8ime partis, similar
grant Oyer other lands^ but not in Tewingtm

manor."

Berryman (examined . by Mr\, Manning)

produced the following documents, which were
put in, and partly read: being received in evi-
dence u^^er a proteM by piaintiCs counsel,
that they were not admissible. The objection
wa9> that the deeds related to lands in other
manors. than Tewingtm*

" 1786 to ISIO.— Several leases during this
period, granted of copper and lead-oreis, by Sir
William Leman, to divers lessees of other lands
within the assessionable manors^

" 1 September, 1 7 86 ^-r- Lease to John James
of Wheal Batstm mine, ip, St. Agnes, manor of
, Tjfwamehaik, being one of the assessionable
manors.

*'\ Septmiber, 1788.— Lease, to William Robin-
son. Manor of Jfelstm-in-Carrier.

'^ 20 December^ 1794. — Lease, to Wilson and
Rogers. Mknov oi Relaton.''

I^. Frances Paynter (re-examined by Mr.,
Manning). — " I have searched among the papers
oiSir William Leman for the lease of which the in-
rolment was read yesterday, but was not able to
find it.

(Cross-examined by Mr. Serj. Wilde). — " I have
not observed that any of the leases put in relate to
the private freehold estate of &> William Leman.''

68 RowE V. BRENTON. — EvidenccfoT the Defendants.
Mr. Stephen Pearce (examined by Mr. — —

• ). — " I was acquainted with Sir William

Leman. I received his rents of copper mines^ as
toller, upwards of forty years. I received large
syms, many thousands, as dues of copper and
lead, of mines let to under-tenants « They were
the same as were leased to Sir William by the
Crown.

" My father received for Sir William large sumir
for copper dues, for many years. I have his
books here* In Jhvington manor he received
copper dues. I paid charges for Sir William.

" In forty years I received many thousand
pounds, frequently 2 or 3000/. a year, sometimei»
more.

(Cross-examined by Mr. Serjeant Wilde. y — *' I
can tell all the mines from which I received the
dues. In Tewington manor I received dues from
two copper mines, namely, Wheal Change and
Tewington mine.

" I am not certain that Wheal Change is in
Tewington manor : I have heard «o. I have re-
ceived dues^from Captain James Gilbert of Tewing-
ton mine. It is also called Gewan mine. . I have
not received dues from any other mine in Tewing-
ton manor*

" In July 1805 I received twice for the same
mine. Wheal Gewan, in all 21. 7s. Id.

" In November 1800 I received for Gewan,
21. 9s. Id.; in all 51. As. Id. including Wheal
Change.

" Gewan mine is near the down, in enclosed

EowR V. BBENTON. — Evidence for the Defendants. 69

' land ; it is not on the down. I believe Captain
Gilbert had the set : it was enclosed before I was
born.

"I don't know whether there are other copper
mines in the manor. There is a copper mine
called Pembroke mine, mTewington manor it has
not existed many years. I have known it for five
■or six years. I don't know whether it is in Tew-
ington manor or not,

[Here the lease oi March 1, 1793, granted by
Sir William Leman to John Benallick, was
again referred to : Ihe land was therein
described as * all that part of the common or
down called St. Austk Down J']

(Examined by th£ Cowri.)— *'Part oi St. Amtk
Down is enclosed, and the other part is open com-
mon. Gewan mine is in St. Amtk Down ; part in
the enclosed land, and part in the common.

(Re-examined by the Attorney -General.) — '^ I
have received dues from mines, both in enclosed
and unenclosed lands. I was never disturbed in
collecting them.

Mr. Thomas Stevens (examined by Mr. ).

— " Iworked Wheal Change mine formerly. About
forty-five years ago the lode was first cut ; it was
copper ore. I believe it is in Tewington, nearly in
the centre of the manor. The lord's dues were
paid to Sir William Leman. I afterwards took a
set oi Gewan mine. That mine and Wheal Change
were consolidated together, and worked by one
set of Adventurers. After the Adventurers ceased

70 BOWE V, BRENTON.r«£t}ft2eiice/or the DefendmUs.

working, I took a set of Gewan mine, by itself, of
Mr. Ftarce, the last witness. I paid the dues to
* him. Gewan is in Tewington manor ; it is about
half-way between Charlestown and &. Austle. I
always understood it to be in Temngton manor.
Gewan mine was in enclosed land before I had it.
There is a close called Great Gewan, but not any
mine ; it adjdns the mine. . My mine was called
Gewan Pool.

Mr. Samud Hichhis (examined by Mr. — ).

— '* I am employed by the Adventurers in East
Crinnis mine. I assisted in sinking a shaft in
western part of PlaintiflTs moor in 1814 ; it wa&
called Leme{lan moor ; it was not all enclosed ;
there were gaps in the hedges. After shaft was
sunk> we drove a level; worked it for about a
year. We got copper before Plaintiff came to live
there. Captain Brenton and Captain John Hitchen^
were our captains. I don't know whether dues
were paid to the toller for the copper ; it was not
dressed there. Plaintiff came to Brenton when we
were putting down the shaft ; no copper was found
then. 1 remember his coming after copper was
fouQd : he asked Brenton what success they had
met with ? it was by the iron shaft. Brenton said
things were very gloomy at present. Plaintiff said
he wished it was better, and that he should wish
to live neighbourly. We found copper in the same
shaft as the tin ; we were trying for copper, and
got about two or three tons. Plaintiff inquired if
we had got any copper ? I left, after having worked

ROWE V* BRENTON. — Evidence for the Defendantt. 71

about a year^ but returned subsequently, and
worked for five or six years : others worked in my
absence.

(Cross-examined by Mr. Serjeant Wilde). — " In
1814 I worked in Lemellan. I know nothing of the
bounds. The copper was not removed at that time.
I never removed any. I, returned to wodc, after
an absence of about six months, in 1815, 1 believe ;
then worked nearly two years ; afterwards left it
a second time : was then absent for some time ;
can't tell bow long. I returned again, but can't
say exactly when. Don't know how long I
worked when I returned ^ I believe about twelve
months.

'* Captains Hichens and Bripton were the cap-
tains when I worked the first and second times.
I can't say whether 1820 was the last time I left.
I have left about two years, I believe. After the
ores were removed, which PlaintiiF raised, I went
to work for the third time : the second time I went
Vas before the ores were removed. There was
copper sampled, from Lemellan to my knowledge.
I suspect more than a sample was taken away. I
never took any. I worked tribute-work. I re-
ceived tribute for copper-work in East Cririnis
mine ; but I can't'say whether raised in Lemellan
Moor : the iron shaft was in Lemellan Moor. We
were then working for copper, not for tin. The
shaft was altogether put down for copper, as I
believe : the agents of the mine told me so. What
we rose was considered too small a quantity to
dress: it was left there.

72 KowB V. BRENTON. — Evidence for the Defondants:.

(Re-examined by the Attorney - General.) — -
-* EmtCrinnis mine is neBrLemellan.''

(Again cross-examined by Mr. Serjeant Wilde.)
— ** The first time I worked I was never paid for
copper. We got tin at Forth mine^ near the sea,
under the same Adventurers, the same agents : we
got no copper there. We did not take the iron
shaft from Lemellan, and caVry it to where we
worked for tin. I believe it is on the spot now;
Merthyn lies south of East Crinnis. I know Sandy-^
Cocks stream; it ran between Merthyn and Ze-*
mellan; I have heard so ; it is now grown over. I
know the spot ; I know Pembroke mine ; I believe
it was put to work for copper. I was never on the
mme.

(Re-examined by the Attorney-General.) — -
** They get plenty of copper at East Crinnis. I
can't say whether we went under Lemellan Moor,
We worked in that direction, towards the iron
shaft.''

Mr. ^ Carlyon (examined by the Attorney-

General). — " I am the ovraQt of Pembroke mine ;
it is not dutchy land ; the place is called
Merthyn.''

Mr. Coleridge. — " My Lord, I appear as coun-
sel for Mr. Carlyon^ in order to protect him from
answering queistions affecting his estate, if any
such should be put,"

il/r. Attorney -General. — " I object to Mr. Cole-
ridge!^ interference : it is an unheard-of practice
that a witness shquld appear by counsel."

Mr. Coleridge. — " 1 am informed that Mr.

ROWE V, BKENTON. — EvideticefoT the Defendants, 73

Carlyon has twice before appeared by counsel, —
on one occasion by Mr, Serjeant Lens^ when Mr,
Justice Holroyd permitted it."

Mr. Justice Parke. — " I will not hear of it.
The witness must make his objection to me, when
any improper question is put. I never will allow
a witness to appear by counsel, unless upon some
higher authority than that of any single judge, as
it would lead to inextricable confusion."

Mr. Coleridge.— ^^ It was my intention merely
to explain Mr. Carlyon's situation to the Court,
and then leave him in your Lordship's hands.
Mr. Carlyon has been served with a subpoena duces
tecum to produce his title-deeds.'*

[Mr. Coleridge then went across to the wit-
ness, and, sitting near him, advised him as
to what questions he should object tp
answer.]

Mr. Carlyon (examination continued). —

*^ I suppose Merthyn is within the ambit of
Tewington manor. " (Addressing the Court.) — * * My
Lord, there have been two Chancery suits upon
this subject." > (Examination continued.) — "My
estate was conveyed to me in 1792 or 1793, by
Mr. Samuel Hicks. That estate was called Merthyn;
I don't know any other estate so called. Pembroke
mine has been at work about ten or twelve years ;
I can't say exactly how long. I have been in
litigation about that mine. I conceive it not to be
in the dutchy land."

[Witness here objected to a question, inquir-
ing, *^ Whether he had paid or bought up

74 ROWE V. BRBNTON. — Evidence Jbr the Defendants.

certain nominal rents of his est(Ue f' Vind the
Court disallowed the question, as affecting
his property. The Attorney-General then
asked, " Whether Witness's frosty was
conveyed to him by any other deed than sur-
render and admission ?" This question also
was objected to ; and the Court ruled that
it need not be answered.]

Mr. Trekase (examined by Mr. ).

— " I know Great St. George mine, in the manor
of Ty warn, one of the assessionable manors. My
father was agent for that mine, I recollect, from
1791 to 1817, when he died. The works were
for both tin and copper. Dues were paid to Sir
William Leman. I became agent to the mine in
1802. Dues were paid to Stephen Pearce for Sir
William^ until the dues were sold by Sir William
to the *Sf. George Adventurers, in the year 1810 or
1811, 1 believe. The mine is still working. Dues
are still paid to Mr. Carpenter. I think leases
were granted by Mr. Carpenter to Mr. Williams
and myself. Mr. Williams was purser of the
mine after those leases were granted. . Many
dues have since been paid.* The mine was sold
in June last. I don't know of my own knowledge
to whom dues were paid."

Mr. Charles Coode, jun. (examined by the
Attorney -General.) — '^ If a conventionary tenant
does not appear, when called to renew his estate
at three successive sessions, then it is offered to
any other tenant to take, and is granted out by
the lord to such other tenant, as for a nan cepit

RpwE V. BKENTON. — Plaititiff^s Evidence in reply, 76

by the original tenant ; that is the custom. I
have known it acted upon in one instance; in
only one."

(Cross-examined by Mr. Serjeant Pell.) — " I
have not the manor roll."

Mr. Serjeant Pell. — ** I object to this evi-
dence."

Mr. Attorney-General. — " I will strike it out as
to the particular instance^ and examine as to the
custom generally."

(Examination continued). — " Non cepit is en-
tered against the name of the tenant who makes
default^ and is continued for three sessions^ that
is to say, for twenty-one years : if no appearance
at the end of that time, then it is let to another
tenant.

*' This is the custom of several of the asses-
sional manors, of which I have been steward for
twenty years."

The following evidence was then given for the
Plaintiff, in reply : —

Mr. George Simmons (examined by Mr. Carter)
produced the following document : —

" Ath Nov., 1814.— Deed of Covenant.— It pur-
ports that Mr. Benjamin Wood 'w^.s a trustee for
the Plaintiff in the purchase oiLemellan estate."

Mr. Attorney-General. — ** I admit it."

Mr. Nicholas Lescourt (examined by Mr.
Carter). — " I know Lemellan estate well. . There
is a road runs north and south, at the side of the
estate. Mr. Cartheufs land, I believe, is on the

76 BOWE V. BRENTON. — Plaintiff's Evidence in reply,

other side. I have worked for five years there for
one ^ Willington. I knew the property twenty-
nine years ago. Many trees were then cut on
Carthew's property ; were sold in lots, perhaps
twelve or thirteen small lots,"

[The deed of 4th Nov., 1814, was here re-
ferred to, and partly read ; it recited
WithieVs agreement to sell to PlaintiflF a
conventionary tenement for 1,400/., of which
part paid to Pearce, and surrender agreed
to be made to Wood for the use of the
PlaintiflF* Plaintiflf was a party to the
deed.]
(Cross-examined by the Attorney-General.) —
** The trees were on the side of the road. They
were cut twenty-nine years ago, in the time of

one Willington. He was tenant of the

Mount estate, which is now Mr. Carthew's.''

(Re-examined by Mr. Carter.) — " Four trees
were cut in Long-Hill.''

Mr, Attorney 'General. — " I object to this evi-
dence. It is of the same nature as the Plaintijff s
evidence in chief, and therefore ought to have been
then given." .

Mr. Serjeant Pell. — " The evidence in chief
was confined to the Plaintiff s estate. This is a
diflferent estate and owner, as to which Defendant
has given evidence for the purpose of shewing
its tenure. My evidence, therefore, is strictly in
reply."

Mr. Jmtice Parke. — ** I am of opinion, that the
evidence is admissible, in order to shew that

V*

ROTVE V. BRENTON. — Plaintiff's' Emdence in reply. 77

tenants of conventionary tenements exercised acts
of ownership."

Mr. Edward Carthew (examined hy Mr. Carter)..
— " I am owner of other parts oi Nansmellan''

(Examined on the voir-dire by the Attorney-^
General.) — " I am concerned in litigation respect-
ing my estate. I am not engaged to pay any part
of these expenses. I never have paid any, former
experiSes. I have always refused."

(Examination continued by Mr. Carter.) —
" Trees on my estate were sold by my order, and
for my use. I received the money, twenty-nine
years ago. I have sdd none since. A ground

at the upper part of my tenement is called -^ .

Forth and Sandy Cocks were the names of the
stream- works. They were formerly carried on
by Tin Adventurers^ They passed through my
property. I received dues from the Adventurers,
4)ayable to me as owner of the tenement. I never
was an Adventurer."

(Cross-examined by the Attorney-General.) —
(Witness, referring to his memorandum book of
dues received,)

** On 20tlv Feb. 1788, of John Carthew £20 5

— 16th July, 1 789, — John Emmett (for tin dues) 19 9 9

There are sundry others.

" The Perth works were never mine. They
were at one end of the moor. Sandy Cocks work
was at the other end. It adjoins Lemelldn Moor.
Th£ stream- works injured my land. They worked
for several years ; ten years.

** I received in all about 100/. or 200/. for dues.

78 ROwE V. BBEi^TON. — Plaintiff'$ Evidence in rq^ly.

I can't sia.y whether 200/. I have no recollection
of the exact amount.

" The works were carried on about 1788,
before the saJe to Rashleigh. . I believe they were
not worked after sale to him.

" I don't know what proportion I received for
dues. Different persons paid when I was young.
I never collected the dues myself; never attended
the toller.

'M was owner of MemU : part is leasehold.
The stresun did not run through Mounts only
through Nansmellan. I hold property in which
Lord Mount-JEdgecumbe . is also interested* I was
not a tin-bounder, not that I know of* I don't
know that the estate was bounded. I never paid
for' bounds, nor had any thing to do with
bounders. I received dues, as bounder,. in Nans-
mellan.

(Re-examined by Mr. Carter). — ** AH my
estate is called Mount, and Nammellan is part."

Mr. Thomas Treinthick (examined by Mr. ).

— " I was employed to work for the Forth stream-
workers about 1782. I began in Mr. Rogers's
land and Mr. CarlyonSy towards the sea, and
worked up from the sea ; came on to Carthew's
land. I was the dresser. It was my duty to set
out the dishes or tolls. I kept Carthew's tin ,in
one chesty and the Prince's tin in another chest.
It was part of Merthyn. Merthyn is bounded.
Mr. Carthew's estate was not bounded. The
Prince's dues came from J/r. Hes's land, at the
south side of the moor, the bounded land. Car-

RbWBD. BRBNTON. — Defendant's Counsel in reply ^ 79

thew^s land was at the other side of the moor.
I set out 1-1 8th for: the Prince; none for the
bounder. Mr. Carthew took his toll in cash»
Cartkew got as much as the Prince, Polkinghome
was the Prince'^ toller.

(Cross-examined by the Attorney-General,) —
" No share was set out for Carthew. Nothing
taken in kind but the Princess tin. I am speak-
ing of about 17 or 18 years; ago. LemeUan was
not bounded then^ that I know of. J/oi/n^. be-
longs to Mr. Carthew; to no other person, that
I know of. Sandy Cocks works lay to the east,
and the Parth works to the west. Mount was
out at rent. William Willington lived on it.*'

This closed the evidence on both sides.

Mr. Attorney-General then addressed the Jury
upon the PlaintiiF's evidence, in reply, as follows :

" May it please your Lordship, Gentlemen of
the Jury. — The prediction with which I opened
this case has been verified ; and that regret which
I anticipated I now seriously feel at being
obliged to address you again.

" I congratulate you, however, that you are
now nearly arrived at the end of yovir journey,
though there are still three stages more to be
tmvelled. Mine, however, I promise you, will
be a very short one ; my learned friend's, I hope,
a very ^hort one ; his Lordship's, as maybe, long
or short. It has been, indeed, a dreary journey ;
almost as dreary as the moors of Cornwall.

80 ROWE ». BRENTON. — Defendant's Counsel in reply.

*' In my address to you yesterday, I was guilty
of some inaccuracy, in stating myself to be a
stranger in this county; an expression used by
me only as contrasted with the situation of my
learned friend, and which I should be sorry to
have misunderstood as implying any forgetfulness
on my part of the obligations due from me to those
who have, in four successive Parliaments, done
me the honour to return me as the representative
of one of your ancient boroughs. . This explana-
tion I have felt to be due to myself.

" The case which I have laid before you has
been strengthened by the Plaintiffs evidence in
reply ; and the weakness of his case in answer
confirms tlie strength of mine.

'! I have proved to you, most satisfactorily,
that down to the reign of Henry VIII. or Queen
Elizabeth'' —

[Mr. Serjeant Pell here interpoaied to confine
the Attorney -Generate observations to the
Plaintiffs evidence in reply.]

** The question for your consideration, in the
first instance, is, what was the tenure of the
Plaintiffs estate ?

'* If it was a base tenure, it was either leasehold
or copyhold ; and the lord would be entitled to the
mines, unless the other side can make out the
affirmative, that they are, by custom, entitled to
take the mines of copper.

" You must, I think, be satisfied,, from the
evidence, that this is not an estate oi freehold.
Copyholders frequently enjoy an estate of inherit-

BOW& V. B ftt^'^T6^.-^Difeiidafa^s Cotmse/ in repfy. JBl

anee, ftikl widows hare their fi^eebench ; but that is
not a freehofd estate, not though it descends front
ifather to son.

^^ It is an important rule, applicable not only to
tiiis case, but also to all the dutchy estates in
Cornwall, that they are inalienable. And if, in
Edward IIL*^ time, this estate Mras cdpyhdld, no act*
but that of the Legislature can have altered it.

" The forms of surrenders and admissions, in
these manors, are encroachments;* the estate's
pass by enrolment.

'* But I may admit, for argument, that it was
competed to the Plaintiff to prove a title to these
opes by Kmtmn. Still the u^ge must be proved
by him, not by me ; and he must sh&w that he
has taken the ores of this 'particular description.
The mines of tin were originally vested in the
king : I kave proved it ; l^ey acquiesce in it^

*' Th'e Plaintitf has resorted to a miserable frag-
ment of evidence to-day, as to Merthifh. Says it
is part of the dutchy lands, and that no dues were
paid. No proof has been given that this is in
NoMfnelkm, or that it ils not a freehold of Mr.
Carhfon. Mr. Carlym contends that he has a
freehold thene ; but that has been a matter of

'* If this be so, it seems further to shew that Teunngton is not
a maixor ; for surrenders and admissions are necessary forms of
cbnyeyanee of copyhdd estittes. Bdsfides, although the admis-
sions to estates of inheritance may be incroachments, and there-
fore voidable by future Dukes of Cornwall, yet I apprehepd they
would be good, by estofpel, against the present duke, and those
claiming under him, as he cannot dispute his own grant.

G

82 KOWE V. BBENTON. — Defendant's Countel in reply.

contest ; and no inference can be drawn from the
non-payment of dues there, of recent date, and
always the subject of contest. The question of
kctdity, as to Merthyn, is now contested ; and no
inference, therefore, can be drawn. from that

* " As to the only remaining estate, the Mount
estate, Mr, Cartkew says, that part of this estate is
in NansmeUan. I admit it ; but the whole is not ;
and so says Mr. Cartkew. He contends that he
has a freehold there, and admits that he is not a
bounder. The absolute owner of the soil stands
in the place of the duke, and takes the same dues.
Where the duke is lord, any person may come in
and bound ; and, whilst the bounds last, he get»
a toll, in conjunction with the lord.

" I entered into evidence as to the tin, in order
to shew the consistency of my case. The duke is
lord of the soil, and as such he takes the tin : but
the point for your attention is as to the copper.

" Now the Plaintiff has given you no evidence
as to the copper. That ore, at least in this
country, is comparatively of modem introduction.
It was not known before the time of Queen Eliza-
beth ; consequently, no custom respecting it can
be proved ; there has been no attempt to prove
a custom. The cross-examinations, indeed, were
pressed, and, I expected, as foundations upon
which to raise other evidence of a custom. I
heard my learned friend speak of one hundred and
tvxnty-mne witnesses! but they have dwindled
down to two or three. Had I known how destitute.

BO WE V. BR E N TO N . — Plaintiff's Counsel in reply, 83

how meagre, my friend's case was, I certainly
should not have produced all the evidence which
I have laid before you.

'* I could not, however, consider myself as
combating with a shadow, when contending with
Serjeant Pell —

Nil majus generaturipso ; *

Nee viget quicquam sizniiey aiit secundum ! .

(Then turning to Mr. Serjeant Wilde) —

Praximos illi tameu occupavit
Pallas honoTta l"^

Mr. Serjeant Pell (in reply). — " May it please
your Lordship — Gentlemen of the Jury : — I can-
ijot but congratulate my learned friend, the
Attorney -General, on the opportunity which has
beien afforded him of setting himself right with
his worthy constituents at Ashburton. Yesterday,
he was a stranger in this part of the country, and I
suppose thought he should be taken to have been
in earnest ; but twenty-four hours have since
elapsed, and we come now a little nearer to that
tremendous crisis, a dissolution of Pjsirliameht.
Not that I mean to impute any thing like a fear
of losing his seat to my learned friend."

Mr. Attorney-General.— ^*\nA.e%Ay I hope not."

Mr. Serjeant Pell. — *' No ; my friend is quite
secure, quite safe in t\ie borough oi Ashburton r

The Captain of the Sheriff^ s javelin-men (much
either in anger or liquor, and shaking his fist at

* Hor. Carm. lib. i*. ode 12.

84 KOWE V, BRENToK. — Pitfintiff^s Counnl in replif.

Mr. Serjeant Pell) — " Yes, he is; and I am a
host for him T' — (Great laughter.)

Mr. Serjeant Pell. — " At least, if I hjave my
Pallas, 1 am happy to see the Attorney-General
has his.

" But to the case. I say the ontis of proof in
this case lies upon my learned friend. It is so in
all cases where a person is proved to be in the
possession of an estate, and. so occupies it as to
render it to be presumed that he is entitled to
take the ores in question. That, I submit, is
proved in the present instance.

'' I shall have many objections to offer, in ordet
to shew that those deductions are not to be made
which the Attorney-General has made from his
evidepce.

** Look at the acts of ownership exercised
upon these estates. The owner can assign tlie
estate without the lord's leave. On his death,
his eldest son takes by heirship ; or his widow
the whole of the estate; or the eldest daughter
takes, exclusively of the other sisters, contrary to
the general law of the land.

'' Light grounds alone are not to take away
from such an occupier rights so important as those
which are now in question.

*'The Attorney-General has drawn your notice
to the copyhold tenures of this manor. He has
shewn you that a copyholder is a mere villein! —
a base tenant ! Gentlemen, there is nontf lower ^
except only a West Indian slave. And if the
Attorney-General is right, then: every copyholder

otowE V. BRENTON. — Plaiutiff^s Counscl in reply. 86

of these manors may now return to the base^
degenerate situation in which he formerly stood.

** The argument of the other side is, once a base
copyholder, always a base copyholder — that
encroachments are nothing — tiiat no acts of
ownership can alter his estate. This argument I
totally deny.

" The Attorney-General has said, that I would
produce no title-deeds ; but my client's title-
deeds are, or ought to be, in the office of the
dutchy court."

Mr. Attorney^General (interrupting) — ^* They
are in Mr. Coode's possession, and have been pro-
duced by us as far as there are any."

Mr. Serjeant Fell.- — " A modem conveyance
will shew but little as to rights or bbunds. If
the Plaintiff's estate be within the manor of
Tewington^ where should his title appear so well
as upon the Court-rolls ? But'the other side has
been producing Assession-books and rolls, which
they choose to term the rolls of th^ manor ! But
it is only necessary to turn to the evidence to see
that these are, in fact, only minutes, and that the
rolls are in the dutchy office.

" The material rolls have all been left behind ;
and the Plaintiff has been most unfairly dealt
with, because he has been shut out from the
dutchy office, which it has been urged is a public
office, and where he ought to have had access to
inspect his title.

** Mr. Abbott has not done himself credit by
his testimony. He admits that he has been
served with a subpcena. At first he was unintel-

86 KowE t?.\BRENTON.— -P/fltw^i^'* Counsel in reply*

ligible ; then he gave an answer which I did not
like ; then admits that he has brought some rolls^
but not those which we required, and selected by
an officer connected with interested parties. ' If
this is to be endured, then all are at the mercy
of the Duke of Cornwall. There is nothing
wrong, that I know, from the fountain ; but
some of the subordinate streams may not be so
pure.

■* Some important documents certainly are in
Londoriy but which ought to have been here.

*' The question of rights in other manors cannot
affect this.

" My friend said he should shew heriots taken.
I don't mean to speak with confidence, but I
believe, in copyhold manors, heriots apply both to
free copyholds and those which are not so. In
Blackstone's Commentaries (vol. ii. p. 97), is the
following passage : — * Heriots, which I think are
agreed to be a Danish ctMtom, are a render of the
best beast, or other good (as the custom mdp be) to
the lord, on the death of the tenant. These are inci-
dent to both species of copyhold.' Meaning, as the
preceding words in the text shew, copyholds of
inheritance, and for life also. The reservation of
a heriot does not, therefore, shew that the estate
is not of a freehold nature. That proposition I
submit.

"There is nothing to shew that the Plaintiff's
estate was part of the lands of the dutchy in
ancient times.

"It is very improbable that there should have
been any encroachments in Elizabeth-^ time ;

boWe v. brenton. — Plaintiffs Counsel in reply. 87

both herself and her ministers were too vigi-
lant.

** The law will presume every thing, even an
"Act of Parliament, in support of such rightd as
those of my client, 'enjoyed for so long a period of
time.

*' Mr. Coode's evidence shews, that these were
inheritable estates. The Defendant has attempted
to shew a custom to take from seven years to
seven years, and 6d. paid to the lord ; but there
is no proof that sixpences ever were paid.

** I can't discover what it is meant to be con-
tended is the right of the Duke of Cornwall. Does
he mean to claim all mines and minerals in every
tenement in the Assessional Manors? If so, it*
includes free tenants as well as free conventionary
tenants.

*' Unless acts are found accompanying grants,
the grants prove little or nothing. Now the first
instance of a sub-lease which included copper, I
believe, is in 1797. The first lease of copper was
in 1697. Mr. Vincent was the first lessee of
copper ; and all subsequent leases of that mineral,
I believe, will be found to be on surrender of
prior leases by Vincent. But there is no instance
of profit taken under them, I believe, until Sir
William Leman's time, in 1742. You remember
the blundering manner in which they attempted to
prove, late last evening, their receiver's accounts.
Yet this very point was so launched by my learned
friend, as was calculated to frighten me, if in a
cause of this nature I was likelyto be frightened.

88 ROWE If. BRENTON.-^-P^'n^t/jP^ Counsel in reply^

** Oae of tbe I^Mes^ I thinK to iSSfr WiUifim f^eman,
is most preposterous in one of its conditions^ that
which forbids the l^s^ee to cor^proqiise differences
with the tena^t8; such differences^ whether the
tenants will of no, are to be decided^ not in a
court of law or equity, but by the officers of the
dutchyl

*' The next leasp prpvides fof th^ ca?e of a
tenant bringing an aption against the lessee ; and
if the lessee sucqeeds, then he covenants, not Xq
compound, or make it np vith the tenant. Whsjt
is this but threateo^ing the tenant that th^ lessee
shall go on to the utmost e:¥tent of the \^yr ?

^^ This is always the p]iaracter pf encroach-
ments. Firsts a little encroachment ; then act^
of aggression ; then i^laims of rights, which the
Duke of Cornwall never, in earlier times, dreamt
of possessing.

" We come next to the lease in 17^3,. to Hussey,
executor of &r Wilfiam Jjeman; and there is this
most extraordinary clause in it : it shews a contest
in 1763 in the Court pf E:pQhequfir, and 600/. ifsrere
therefore to be held in the receiver's hands, until
the rights of the crown to lea^e the minerals; in
question should be determined.

** How then was this suit determined ? Had it
been in favour of the prpwn, this hall, large ^ it
is, would hardly have been large enough to havp
contained the voice of my learned friend, pro-
claiming to you that fact. No doubt, then, it w^ '
determined against the crown.

*' The 600/. IS not in th^ receiver's accounts ;

ROWE f. BR^NTON,: — Plttintiff's Cottnsel in r^ly. 89

it would hav@ cut a figure in these twopenny-
halfpen^iy accounts ! and what has become of it
ought to have been shewn.

** These are cardinal points in the cause ; and
I must take care that they are not lo^t sight of.

"The claus? in the lease Qf'~1763 was, no
doubt, a surprise to the qther §ide, pr it would
have been nfientioned in the outset.

** Th^ leasee, you will pbserve, were granted
when the right ^^ iQ conteAtion ; and there has
been no proof of any perceptipn of prpfits under

** I have now gone through, I believe, all the
doc^mentaxy evidence.

** In this cause there are tremendous interests
at 9take. Yet observe, I pray you, the prices
paid for '* all these mines in Cornwall !"

'* Geptleqaen, these proceedings are not insti-
ti^tj^d by the crown. No ; the prpwn is far tpo
liberal. But I must deal with its representatives,
J^r. Carpetfter, and Mr. Tucker, of Trematon Castle.
They are armed with all the authority of the
crown ; though I admit they have not its best
prerogative, mercy.

* ■ For toll'tin, the duke's unquestioned right, I
bCjg it may be marked, is to be paid the sum of
18,000/. ! whilst for capper, through the whole of
the dutchy, not only in the assessionable manors,
but throughout all the country, 1,20Q/. only is
paid ! And this we find in evidence. I only wish
that I was an officer of the dutchy, to take leases
yajiuable as tfa$se> if this right can be established^

90 ROWE V. BRENTON. — Plaintiff's Counsel in reply.

" The consideration plainly proves that the
officers of the dutchy did not imagine they had
such right; and the lessees paying so little,
shews that they did not expect to succeed in
establishing it.

'■ As to the manor of Tewington, my evidence
has been confined to it. There are three descrip-
tions of tenants in the manor ; and of the tenement
of Lemellan, 20 acres now belong to the Plaintiff,
and 22 acres to Mr. Carthew. Besides these,
there is the estate called Merthyn.

" In Temngton there is a copper mine called
Gewan, also the copper mine in question, called
Wlieal Ratve, and the copper mine called Pem-
broke. These are the three copper mines.

" Gewan being on the waste, the lord's own
land, there can be no doubt as to his title there.
The lease to Benallack is indorsed * Set for copper^
8gc. on St. Austle Down, part of the dutchy estate.'
In the earlier lease, in 1768, it is called * Gewan
Pool, in the open down;' there is no question,
therefore, as to this mine.

** Thfere was a conveyance of the land of
St. Austle Down to Plaintiff.

" The strongest part of the case is as to
Merthyn. I waited to see if they would touch
on Pembroke niine; it is situate upon Merthyn,
which is mentioned in the Assession-roU imme-
diately after Nansmellan, in the same manor, and
under the same tenure of free conventionary
tenants. Why then has not Mr. Carlyon been
called upon to give up the mine ? Why have they

ROWE V. BRENTON. — Plaintiff's Counsel in reply. 91

not shewn dues received? Mr. Carlyon comes
into court, fully anticipating he may one day
hive a similar contest, and he protects himself by
Counsel. ^ He is put into the box, and two or
three questions only are asked. He says he
believes part of Merthyn is in the dutchy land.
He says he knows where the copper is raised,
and he conceives it is in the dutchy land. He
conceives! Why, we have the proof absolute :
here it is on the roll. He says he bought the
land where the mine is from Hex ; and his admis-
sion, on Hex's surrender, was proved.

^^ Mr. Carthew has proved, as to his estate,
that he received dues of the tin, — not as an
Adventurer, not as a bounder, but as owner of the
land. This estate? is proved never to have been
bounded ; and the lessee of the dutchy has never
taken toll in respect of the lord's interest.

*' With respect to the iron shaft. As to the
bounded part of the estate of the Plaintiff in
Lemellan, no doubt can be raided to the duke's
right to tin. Hitchens has come to bolster up the
case for the lessees, attempting to prove that
they worked in the iron shaft for copper only;
whereas it is clear, from Fm^w's. evidence, that
they worked for tin, and that Plaintiff was, in
fact, the discoverer of the copper lode which has
since been worked to so great advantage. The
casual bit of copper found by the lessees was too
inconsiderable to be smelted, and their works
were subsequently abandoned.

" I don't recollect that any authority has been

92 ROWE V. BRENTON. — Plaintiffs Counsel in reply.

shewn, by which Mr<, Brenton was entitled to
come and take away the copper.

'^ I take my main stand on this, — ^that the
Plaintiff has exercised the acts of ownership
described, and Mr. Carthew has done the same
on his adjoining estate, all which are acts of
forfeiture if the estate be of copyhold tenure, and
therefore are evidence to shew a freehold inherit-
ance. Besides which, the defendant having never
taken dues of copper from mines adjoining and
held under the same alleged tenure, is a fact
strongly corroborative of the Plaintiff's interest^
and met only by long rolls of assession, by no
court rolls, by alleged rights not proved, and by
forbidding us to inspect our title.

'^ Inasmuch as different manors have different
customs, I conceive what is done in one msitior
is not evidence to prove customs in another
manor. Here it is proved that the customs are
different: one tenant to be bailiff, another a
•beadle ; one to forfeit for assigning without leave,
sad so on.

''As to the argument that a custom cannot
be proved because copper is of modem introduc-
tion, the same reasoning has frequently been
urged before ; in one instance, in a case of tithes,
where a modtis was set up for an article of
modern introduction, I think for hops; and in
another instance, where a guinea payment was
established as a modus, guineas being a modern
coin, and every thing was presumed in favour
of it.

j|oiY£ V, BRENTON.'-r-CAflrgc to th Jtiry. 93.

** So also with respect to the rights of voting
in boroughs.

" No evidence whatever has been offered that
the mines in the other manors were in conven-
tiohary tenements.

" The Plaintiff is contending against those who
have given only 1200/. for these immense rights !"

Mr. Justice Park then summed up the case to
the jury : —

'* The Plaintiff brings this action of trover for
copper ores taken off his premises, and the De-
fendant says that he is not guilty.

** The question is more a question of fact than
of law.

** The Plaintiff launched his case so as in ordi-
nary cases to have proved him a tenant in fee ;
and he rightly rests his case upon his alleged
legal title in fee ; for had the evidence of his wit-
nesses been unanswered, he would, in law, have
been clearly entitled to recover, because a title in
fee to the surface gives a right to all above it, to
the heaven ; and to all below it, to the bowels of
^the earth. If, indeed, mines of gold or silver
had been found on a man's estate, I am inclined
to think they would not belong to him; but,
however, it is not necessary to decide that. I
don't know whether it ever has been decided.*

* By statute 1 WiUiam and Mary^ ch. 30, all gold and silver
found in mines of this kingdom are directed to be disposed of at
the mint within the Tower of London, and at no other place :

96 ROWE V, BRBNT4^N. — Charge to the Jury.

think, do not mean mines of tin only, as controlled
by the word stannary.

*' I agree in the observation, that if thefe had
been no usage under grants, the grants have very
little weight,

" The hext documents produced are the minis-
ter's accounts, dated in 25 Edward /., and which
sheyr various returns by the steward of monies
paid by him, as received of tenants of mahors,
for tolls, fines, &c. &c.

'' Next we have the inquisitio post mortem,
28 Edward L, on the death of the Duke of Com-
wall, shewing that he was seised in fee of the
issues of mines of tin, and of several manors, &c.,
including the manor of Tewingtan : in this docu-
ment, too, * conventionary tenants' are i^poken of,
which, ex vi termini, Certainly means tenahts by
convention or agreement.

*' Following this, is the charter of 1 Edward 11. ,
granted certainly to a very unworthy pei;Son, as
we learn from history. It grants all mines of tin
and lead, and ii^ other parts speaks of miyies,
generally, to have and to hold as fully and amply
as the late Edmund, Earl of Cornwall.

" There is afterwards a re-grant to the same
person and his wife, of (amongst other things)
^ all mines of tin and lead.*

And a charter of & Edward III., shewing a
grant to John ofEltham, his brother, of {inter alia)
the manor of Tewingtan.

" We come then to the first of the Assessian
Rolls, in 7 Edward III.

'' The objections which have been made to the

ROVE V. BRENT0N. — Chwge to the Jury. 97

admissibility af this evidence, I think were valid ;
but if so, that may: be mooted hereafter.
' . " The object in using these rolls, has been to
shew th*tt the Dukes of Cornwall exercised certain
powers over the tenants of their manor of Tewing-
ton, and other manors. -^

*^ The commission I should not probably have
been disposed to have received if it had stood
alone; but it stands recited upon the roll. By
it, power is given to the commissioners to let to
the tenants, by convention, whether by inden-
ture^ or otherwise ; and for a term of years; or for
life, or otherwise. Then follows the return made
by the commissioners, which seems to shew
rather ' that ^the tenants were leaseholders than
any thing else .

" Next in order is the charter of 1 \ Edward III.,
creating his son,* the Black Prince, . Duke of Corn-
wall . This charter purports to be granted 'by
the advice of the Council, Sgc, assembled in Par-
liament, convened at Westminster:' it grants the
stannary, and coinage of stannary; but the word
* mines' does not appear in this charter to be in-
cluded, though the profits of the Courts of the
stannary and mines are included.

"We have then the assession rolls, 21 Edward
III.—SS .Edward III. — 45 Edward IIL, and 20
Henry VL [extracts from which his Lordship
rea4^] By these rolls, services are shewn to be
performed, which, it is said, are inconsistent with
the character oi free tenants: and so it appears
fo me ; as I have, never heard of such services
being due from free tenants.

H

98 RowE V. BBENTON. — Charge to the Jury.

" Undoubtedly the word ' hemt ' is generally
applied to copyhold estates : I never beard it
applied to freeholds. I don't know that reliance
is absobitely to be placed upon it — but it is a
circumstance to be taken into consideration."
[His Lordship then read extracts from the
rolls 20 Henry VII., 20 Henry VIIL,
and 27 Henry VIIL]
*' The forfeiture of the tenant's estate fqr dig-
ging tin, shewn by this last roll, is certainly
inconsistent with the idea of a freehold right
in the tenant; the forfeiture by cutting oaks
is also inconsistent; and you are to consider
whether these instances do not consist down
to the present time, and form a strong body
of evidence for the defendant to get over.

'' As to the objection, that more rolls have not
been brought, I thmk there has been great
negligence. The clerk haying been desired to
bring the rolls relating to a particular manor,
has no right to make a selection. I don't think
that we are to presume^ or that it is proved,
that there were other rolls which have not been
brought dDwn."

[His Lordship next read the extracts relied

upon, from the asseman books, dated in

1794, 1762, and 1663; and ilfr. Tucker'»

and Mr. Abbotts'^ evidesace respecting the

manner in which the books were made up,

&c.]

'' With regard to the entries, ' to bold ts the

tenants and their heirs for evier,' you are to deal

with this as you can; it certainly conveys an

ROHf jp V. ^BENTON. — Cl^arge to ttw Jury. 90

estate i^ fe/s ; ^4 respiept^ the same laodis which
forpaerly yvexe e^tpred, ' to hQUfVQun sewn years to
seveff^ years.' '*

[Py di^sife of thp Attorn^ •Gemral two
pres§ptm6Ats of the Jury were here read,
frp^ jthe asi^egsioA rolU» ia order to shew
that the wprd '* tmef'' WM used as apply-
ing tp /r^ t^n^mentSf and the word
^^ cgw*" f^ fs^pplyiog ta^anve^ifmary tene-
mpn^s^ wfeipk U ai^eared ^s Lordship had
9ot ijppp hip iiQtei^.]
^' The distinction suggested between the words
^ tefiff 9nd * pij^* ' }$ » very cfitioal one. I should
iu>t lifive ^tip^ it, If^ nat my atteRtion beoa
4r9;Y^ to it, — and it doeg npjt appear to me to be
material."

[T(}ff ^v|d^46e pf M^. Bdtmrd Coade was tlien
fea4 by hi? J4>rdghil>.]
'' lt}§ 9. strong fyfri i|t fwftur of the Plaintiff,
tl^at ^ cp^y/e^ntiqpaiy teHAPt SO far from having an
estate at the will of the lord, has something very
n|^^l| lij^g a pepngft^t hf^editary poasessipn —
his widow takes a life eptete^ and his heir by
inherififffce for fiper! I| 19 yery singular, and I

«

cflfli^pt ef pl^ig i*? The words, * atemding to the
cusffm qf th^ Vffl^Vi porhaps control the nciords
of j^berita^ce, ' heir^for^er''"

[Ifi/I Lordship 9^^ti read parte of the chairters

33 ifdwa/^d J. m4 6 ffwry VL, withoutf

comment.

On his being about to read, from the

grant, 12 James /., Mr. Serjeant Pell

100 rowjrWbrenton. — Charge to the Jury:

' objected, atid said, " that it ought to be
struck out from his Lordship's notes, be-
cause no part of it was read for the Plain-
' tiff," and it was struck out accordingly :
but note, the Defendant's counsel were at
the time otherwise engaged, and appeared
not to be aware what was done.
Extracts from the seven several leases, from
that of 4 December^ 1718, down to the lease
of 16 August, 1810, inclusive, in the order
they were produced in evidence, were
then read.}
" Up to' this time, you will observe, we have
no evidence as to the copper — '- all these docu-
ments having reference to tin only. We now
go to the copper.''

[Extracts from the leases of 10 July, 1697,
and 3 March, 1717, were then read.]
" As to the accounting upon oath, no accounts
on oath appeat to have been made. None are in
proof."

[Extracts from the lease of 3 July, 1742,
were next read.]
'* With respect to this covienant, I conceive,
that in ordinary cases of manors, the lords cannot
enter, without leave of the tenant, to dig for mines ;
as in a case which I remember in the Court of
King's Bench, where a nobleman dug for coals
under his tenant's estate^ and the tenant recovered
large damages.

** Here a large claim is inade of a right to enter
on the tenant's land."

^

ROWE V. BEENTON. — Charge to the Jury. 101

[Note of the lease 13 June, 1763, was next
read.] <

" The remark made by the Defendant's counsd
respecting the return of the consideration-money
expressed in this lease, and that no explanation
has been offered as to the result of the- suit Uien
pending ; in the Court of Exchequer, . is perhaps
answered by the Attorney-General's observation
that.Uie lease was surrendered, and followed by
a new lease to the same parties, at an increased
consideration."

The lease of 11 January, 1810, was next read,
without comment.

In observation upon the charter 50 Edward III.,
his Lordship remarked, .*' that he believed the word
' mine/ was not included in it,"- which was as-
sented, to by the counsel on both sides.*

The assession roll 19 Elizabeth, and afterwards
th^ evidence of Messrs. Thomas, Organ, Geach,
and Pearce, and the admission of Mr. Wood in
1814, were read by the learned Judge, without
comment.

, On reading the conveyance to Mr. Rashkigh,
and the exception.it contains of all mines and
minerals in the said manors, &c., his Lordship
remarked, " I cannot conceive how, in the face
of this document (Mr. .Rashkigh not having pur-
chased the mines, which are expressly reserved
to the Prince, and Rashleigh being the immediate
lord of the Plaintiff), the. Plaintiff can claim a
right to copper mines."

* But note, that it is ; vide page 60,

■ri

102 BOi'l^E t?; BBENTttN.— CAaii§r« to the Jnry.

The learned Judjfe then rfead hte notes of all
the rest of the evidence, with the foUdwing obser-

yati(His, tiamely 2-^

On the evide^ce of Mr. Hitchensi — '" I think
it seems pretty clear that Pmbroke wias a e<^per
mine, and iii Tewingten manor, being iti Merthyn:'

On Mr. Cariym's evidence, -— " He is most
probably interested in the Result of this cause ;
therefore his evidence must be received with that

limitation."

And on the testimony of Mr. Cdrthe^ — " He
Aiay also be condidfeired as in sdihe degree ihler-
ested in this event ; but I think no reei^on has
at)t)feared thkt ^ve should doubt his testimony/'

In the course of reading this evidence,
Mr. Serjeant Pell, addressing the Judge, said,
" With respect to your Lordship's observation^
that the Plaintiff eatiiiot claim rights which
Mr. Rmhleigh had not, — it is right I should
mention thdt the Plaintiff dofes not claim udder
Mr. Raskkigh. Your Lwdship will obswve, thkl
the surrender froift Withiel to Pearce wab in May
1774, aAd Mr. Rashieigh did bot Acquire his
Interest until 1798. In May 1814^ Pearce'i hfeir^
at*law^ and Withiel, surrehdered to Weod^ in
truiit for the Plaintiff. So tiiat we take the same
interest which Pearci hkd i^ore Mr. Raskkigh
purchased."

Mr;. Justice Park. — " ! cslnnot believe that
the Prinee could have reserved to hifhself (by the
reservation in the deed of conveyance to Rdsh^
leigh) what was before in other persons. I was

ROWS V. BEENTON.' — Charge to the Jury.

103

about to have left it more loosely in the PlaintifTs
favour — but now I shall read the indenture, or
declaration of trust."

[The deed was accordingly read.]

Mr. Serjeant Pell requested that a note might
be taken of his objection, which was done.

Mr. Justice Park (to the Jury). — " The points
for your attention are thesfe :— ^

*' The Plaintiff claims originally as an absolute
freeholder : and if he is such, generally speaking,
he would be entitled to the ores in question, and
to your verdict for the sum a^eed upon, £100. .

'* But the question now isi whether, — consi-
dering the county in which the estate is situate,
the rights vested in the Duke (f Cornwall^ and
the documents in question, — these rolls can be
superseded by the evidence g^ven on the part
of the plaintiff?

"If you are of opinion that he has made out
his title to this property to your satisfaction, you
will give him your verdict,^ — if otherwise, to the
Defendant.

"It ii» a question of gr^at importance to the
Plaintiff, on the one hand^ and to the Dukes of
Cornwall on the other.''
' The Jury withdrew^ — and afterwards returned a

Verdict for the Defendant.

4
I

€OURT OF KING'S BENCH. :

EASTER TERM, i825. .

I ■ 1 ■ I ,111.,

ROWE V. BRENTON AND .ANOTHER.

Mr. Serjeant Pell moved the Court for a rule
to shew cause why a new trial of this action
should not be had, on the following grounds: —
1. That evidence had been given on the part of
the Defendants which was not admissible in a
case of this description, and between these
parties ; 2. That the verdict was against the
weight of evidence ; and 3. That the Judge had
misdirected the Jury. ^ *

The learned counsel stated the general nature
of the case, and of the evidence on both sides,
observing, that the defence attempted to be set
up \^as, that the Plaintiff's estate was a conven-
tionary tenement of the manor of Tewington, held
from seven years to seven years, and - that under
suth holding the Plaintiff had no right to the
minerals in question.

With respect to the Assession rolls and Assession
books, he objected that they ought not to have
been admitted in evidence, because they were
not original documents, but made up in London,
on receipt of the rolls from the country, and
because they were improperly selected by parties
interested; that they were mere private docu-

ROWE t). BBENTON.— Morfo»/or ^r«& Tfiol. 106

ments of the manor, drawn up in the absence of
the tenant, not signed or sealed, or having any
other authority of that description ; and, wili
reference to their contents; he observed that
they were in direct contradiction to the Court
rolls of the manor, which conveyed an estate
in fee, although an estate from seven years to
seven years appeared upon the assession books:
that the rent of lU., reserved upon. the tene-
ment of NanS'tnellan, was unvarying from the
earliest roll do^n to the last entry in the books ;
and that there was no proof of any payment
of rent, in respect of this or any other . tene-
ment in any of the assessional manors, although ^
in one or two instances there had been a. varia-
tion of the ^we upon new letting; and that the
nature of the Plaintiff's estate appeared from
Mr. Coade' s evidence of the custom of the manor
with respect to the conventionary tenants. It
was also urged, that the rolls and books shewed
that the customs were different in the diffefent
manors, as in some it appeared that the tenants
could not demise without leave of the lord,
though in Tewingtan mznor there was proof that
they could ; and in other manors, cutting timber
was a forfeiture, though here there was proof
of its being cut; wherefore the evidence to
shew that the manor of Tewington was held
under the same circumstances as the other
manors, failed.

Mr. Justice Bayley. — " But there may be a
similarity of fewi^re over many manors, yet sub-

108 EOWE.v. BRENTON.'— ilforio»/<w New. Trial.

case respecting the cutting, otrushes, in Wilson's
Reports?"*

The Lord Chief Jmtice. — V Was there no spe-
cial pleading.?''

Mr, Sefjeant Pe//.-r-" None,, my Lord: it was
an action oi trover. . Upon. my pressing my. objec-
tion to the learned Judge, his Lordship, answered
me by urging that there was an exception of all
mines and minerals in the conveyance of Tewit^-
^0^ manor, sold by the, duke to Mr. Rashldgh ;
and that Mr. Rashkigh being the lord of the
manor at the time .when J/r. Wood was admitted
in trust for .Plaintiff, he, Mr. Rashleigh, had no
power . to admit Wood to mines and mineraJs,
because they were not his. . I answered,^ that, we
claimed under a title granted by. the ^ duke /?nor
to his cpnveyance to Mr. Rashleigh ; but Mr.
Justice Park .S9,id, he could no( suppose that. his
Majesty would have reserved to himself, in hi3
conveyance to Mr. Rashleigh, any mines and
minerals which were before in any other. per-
son/' ~

Mr. Justice Bayky. — *Mf the holding was .of
mines and minerals before the conveyance to
Rashkigh y then .the holding xxvA&c ihe.diomntis
pro tefnpore would equally include mines ..and
minerals, notwithstanding the reservation in that
conveyance/'

Mr. Serjeant Pell. — "These ..are my grounds
of application."

* Rackham v. Jessup, 3 Wils. 332.

ROWS V. BRENTON. — Motioufor New Trial. 109

Mr. Justice Bayley. — " Was the admission of
Pearce in the same words as Plaintiff's admis-
sion, viz. ' to him and his heirs, according to the
custom, without saying, a^ the will of the lard?* "

Mr. Serjeant Pell.'—'' It was."

Mr. Justice Littledale. — "Was there any men-
tion of services ? or was there evidence of any
conventionary tenant having, or exercising, a right
to dig stones or oUier substrata ? "

Mr: Serjeant Pell.—'' No such evidence was
given."

Rule to shew catise granted.

COURT OF KING'S BENCH.

ROWE V. BREVTON AN© ANOTHER.

(On the' argument for a new trial.)

Mr, Justice Jk^ej/i read the ^.vidfaee feom
Mr. Justice Park's notes; and his Lords^p's
certificate that he did not recollect having mis-
directed the Jury, in the manner stated; and
that he was satisfied with the verdict.

The grounds upon which the application for
a new trial was made were also read.

Argument for the Defendants.

Mr. Attorney-General. — " My Lords : — -The
first point which we have to consider is the ad-
missibility of the evidence ; but I will previously
say a few words as to the Plaintiff's right to
maintain this action. Your Lordships will ob-
serve that there is scarcely any evidence of his
title, to have called upon us to give proof of

ours."

Mr. Justice Bayley.-—*^ But I take the rule to
be, that if a man is a wrong-doer, although that
may give him a title to what he digs out of the
land, as against strangers, yet, as against the

Ro wB !?. B R E N TQ N . — Argument agaimt a New Trial. Ill

owner of the land^ he must shew his right to

dig."

Mr. Attorney-General. — " But here the De-
fendants were in the exeroise of a long*existing
right. This mine was under the Plaintiff ^s land :
he had before dug shafts in the land ; and it must
be remembered^ this transaction took place ip
the county of Cornwall : the Plaintiff has shewn
no title to the soil ; and upon the evidence, the
strict legal right may be said to be in Woc^d, th^
trustee for the PlaiAtiff,"

Mr. Justice Bayley. — ^* There is a oase in
Wilson'^ Reports^ about cutting rushes upop a

common."

M^* Attorney-General.— ^'' But if there be a
lord, and he takes away the produce so obtained,
can the wrong-doer enforce his claim against the
lord?"

Mr. Ju^ice Bay ley. r--^*^ The possession of the
land is sufficient against a wrong-doer."

Mr. AttorneyrGeneral.—*' But we say posses-
sion of the land is not possession of the mii^e :
we say we are not to be considered as mere
wrong-doera. The Plaintiff is the wrong-doer r
if your Lordships think we are the wrong-doers,
I admit the principle."

[The Court appeared to be against the Attor*
ney-GeneraVB argument.]

Mr. Attorney-General. — **We of course have

* Rackham v, Jiessup, 3 Wils. 332.

112 HOWE V. fiRENTON. — Argument against a New TfioL

not relied on this objection: we say a title to
these mines is proved to be in the Duke of Corn-
wall, and that the Defendants are his lessees.

** The tenements in this manor were originally
let for terms of years : they were mere leasehold
interests^ and any larger interests cannot subse*
quently be acquired, for this property is inalien-
able, except by act of parliament, as was settled
by the Prince's case and the Sutton-pool case. We
proved leases of fi« granted for a period of two
or three hundred years.

'* Copper ore is of recent discovery-^ about the
reign oi Queen Elizabeth; since which time we
also shew that leases of the copper have been
granted by the Duke of Cornwall, and that copper
was received under those leases : ^ indeed, the
sums of money paid, as considerations for the
leases shew that the dues were taken.

" The assessiou' rolls are objected to as inad-
missible on three grounds : — 1. because they are
not the court rolls of the manor; 2. because the
original commission was not produced ; and> 3.
because they were read with reference- to other
manors than Tewington. Now it appears that
commissioners were appointed from the year
1200 and upwards, down to the present time,
who have, gone down to Cornvmll, made a pro-
gress through the assessional manors, and let
the lands, &c. : and minutes of their proceedings
were made out and preserved among the dutchy
records. Originally they were assession rolls :

ftowk V. BRENTON. — Argument against a New Trial. 113

shortly after the Re^oration, books were substi*
tuted. The commissiojiers go into the county
every seven years: they have two books: one
they bring away, the othftr is left in the cpuntry.
The steward takes the admissions in the intervals
between the sessions, and alters the book accord-
ingly, which the commissioners find when they
next come down : and those tenants who retake
their estates pay a sixpence, aad if another takes
he pays one shilling.

'' These books are the original rolls of the
manor — there are no others ; and the. present-
ments at the Court are mere minutes from which
the rolls, or books, are made up.

^' Having stated this, I will beg to hand to
your Lordships one of these books^

[One of the assession books was handed to
the Court.]

. ^' I come now to the second ground of objection,
viz. the non-production of the original commis-
sion : for this, however, there is no foundation,
because the commission is recited in the rolls,
and appears to. have beien acted upon, which,
therefore, is sufficient evidence; it having been
proved that search had been made for the com-
mission, and that it could not be found. .

" With respect to the third objection, — that
so much of the rolls as related to other manors
was not evidence with reference to the manor of
Tewington, — we distinctly shewed, that all the
manors were held under the same lord : and that
the tenures of the sevet^l tenements were all the

114 ROWE V. BRKNTON.-— ilrgti«i€?i^ agaiutt a New TtiaL

same : the truth, however, was, that much more
of these rolls was read than we desired, because
Mr. Serjeant Pell insisted on our reading on."

Mr. Erskine. — " Really that was not the
case."

Mr. Justice Bayky. — " What need had you of
evidence as to what passed in any other manor
than TewingtonV

Mr. Attorney-General. — " My Lord, — I con-
ceive we had none. Looking then to the Plain-
tiff's title, your Lordships see that he shewed no
title to the soily which appears always to have
been in the Duke of Cornwall^ as lord of the
manor.

*' And, with respect to the admissibility of the
enrolmemts, as evidence of the leases described in
them, — ^we proved having searched for the coun-
terparts of these leases, and that they could not
be found : there were covenants in the leases,
making them void if not enrolled in six months ;
and the usage of the dutchy office, which is a
public office, was proved to be to enrol the
leases. The case of Humble v. Hunt, cited at
the trial, is a direct authority in point."

Mr. Justice Bayky. — "Have you looked in
Douglas'^ Rep. p. 66 ? You will find that the
dutchy officer's minutes would have been evi-
dence."

7th FEB. 1826.

Mr. Attorney-General. — " It only remains fcwr
me to observe upon the objection that the ver*-

HOWE V. BREHTON. — Argument against a N<ew Trial. 116

diet was against the weight of evidence. And
here I mast request your Lordships' attention to
the evidence which we gave of the leases, both
of tin and copper, and the receipt of the dues ; —
[Which evidence was reviewed at cpnsider-
able length.]
upon which I must say, it appears to me that
the whole weight of evidence was with the De-
fendants : there was certainly some little confu-
sion with respect to a mine called Pembroke
mine, but which mine, it is to be observed, is
in litigation. '

" The objection which was taken by Mr. Ser-
jeaTit Pell, on moving for this rule, — that the
Defendant's title or authority to take these ores
was not proved at the trial, — ought not to have
been made ; for certainly no such objection was
taken at the assizes : it was not mentioned to
us, but was taken as admitted on both sides."

Mr. Erskine. — ** It was objected to by Mr.
SerjeatA Pell, in his address to the Jury, and
was noticed by |the Judge in his summing up,
as not being necessary to be proved."

The Lord Chief Justice. — "I suppose in Mr.
Serjeant Pell's address in reply, when the other
side had no opportunity of si^upplying the proof!

Mr. Erskine.—'' Yes, my Lord.

ig tne proui i"

Mr. Selwyn. — "My Lords: — I am on the
same side with the Attamey-Generai.

" As to the first point, — several, of the ancient
documents confirm the court rolls, at least those

116 BOWE V. BU'Rvros ."^Argument ^gaimt a New Trial.

documents cannot be impeached ; for they come
from other custody than the dutchy office,
namely, the charters from the Toioer, and the
minister's or receiver's accounts from the Ea:-
theqner.

^* There are several authorities in the books
to shew that the great antiquity of the rolls ren-
dered them admissible; and I refer particularly
to Denn v. Spray (I Term Rep. 466), and Bullm
V. Michel (2 Prices Rep. 399 : 4 Dawe'^ Rep.
297).

" With respect to the second objection to these
court rolls,' — that the evidence which they fur-
nished as to other manors was not admisisible,^ —
I refer to The Duke of Somerset v. Frank {Fortes^
©tte's Reports, 41)."

Mr^ Justice Bayley.^r^** And another authority
to the same point will be found in 2 Atkyns's
Reports, 189.''

Mr. Seiwyn. — ** The evidence as to the cus-
toms in the other manors was used only to
explain the nature of the estates of the conven-
tionary tenants, which existed in all the manors;

** The next ground of objection to this verdict
is, that the enrolments of the leases were not
admissible in evidence : but the place from which
the enrolment-book comes gives it its authority.
There is besides a covenant in the leases that the
same shall be void if not enrolled within a given
time ; and the lessor covenants that the lease, or
the enrolment thereof, shall be valid.

'* With regard to the last objection, — that ♦he

BOWE V, BRENTON.-^ilrgtimeii/ agttinst a New Trial. 117

verdict was against th? weight of evidence, —
your Lordships will, consider the manner in
which the Plaiqtiff shaped his case^* He only
shewed acts of ownership upon the surface ; —
that he mowed the grass, reaped the corn, and
Wt timber. If the Defendants had not gone into
their title, then perhaps the Plaintiff might have
had some ground for calling upon the Jury to
presume the estate to be \n&/reehx>Id;.but aftejT
the Defendants had shewn their title, considering
that this was in Cornwail, he could not have
expected that any such presumption should be
Qiade*

** These customary tenements were opgiAally
mere leaseholds : I suppose the Plaintiflf will call '
upon your Lordships to presun^e that, contem-
poraneous with the assession rolls, there were
admissions to the tenant and his heirs — and that,
in fact, they have always been cusUma.ry free-
liold^rs. Upon this point, however, I am also
ready to meet them ; and will . shew that the
Plaintiff 19 RPt st pu^toQiary freeholder, but a
prmleged villein.

" In Littleton's, section 81 — [which pnis read]—:^
distinction is expressly taken between a'freehold
interest pf inheritance and a freehold tenure. A
party may have an estate of inheritance^ and yet
pot a freehold tenure.

" In Mr. Jtistice Blackstone's Treatise on CJopy-
hoid Tenures, p. 139, (the excellence of which
treatise has always been acknowledged,) the same
doctrine is established ; and the author refers evir
dently to these manors in ComwalL

118 Row£ v.BRENTON* — Argument against a New Trial.

•

**The cases of Gale and Noble (Carthetvs Re-
ports, 432) — Stephenson v. Hill (3 Bun\ Rep.
1273) — Burrell v. Dodd (3 Bos. and Pull. Rep.
378) — and Doe dem. Reay v. Huntington (4 East,
289) — all positively shew a distinction between
a freehold in point of interest, and a freehold in
point of tenure.

** It is important to observe that the Plaintiff
did not originally put his case as he now wishes
to shape it, — manifesting, therefore, that he then
relied upon a different title from that which he
now seeks to establish.** *

Mr. Justice Bay ley. — " You have not referred
to the case of The Bishop of Winchester v. Knight,
1 P. Willianis Rep. 406 — which is a very im-
portant authority in support of your side of the
question."

Mr. Robert Baily. — **The Duke of Cormwalt
is the lord of all the assessional manors : — which
circumstance is to be remembered with reference
to the question of the admissibility in evidence of
the Court rolls of the other manors, as applicable
to the manor of Temngton.

** Of the enrolments of the leases, it is said that
the enrolment is the act of the lord ; but it must
have been the act of the tenant also."

Mr. Justice Bay l^. — "The covenant is, that
the tenant should enrol ; therefore he must be
taken to have brought the lease for enrolment."

Mr. Baily. — " It is also said, that these rolls
should have been signed, or the original com-
missions produced. But these are evidences of

J

BOWE V. BRENTON. — Argument against a New Trial. 119

proceedings in the manor courts ; and your
Lordships will not now inquire into the jurisdic-
tion of the commissioners, or require evidence
of their authority. The rolls, from their an-
tiquity, prove themselves : and search has been
made for the commissions, but they are not to be
found.

*' I think your Lordships will be of opinion that
there has not been any misdirection of the learned
Judge who tried this cause : and if substantial
justice has been done, you will not now set aside
this verdict, even though the Jury were mis-
directed, as is said by the other side.

** The case of Doe dem. Cook v. Danvers (7 East,
299), is another authority in point. Here the
Plaintiff claims a ctistomary freehold, but if so,
what right had he to these minerals when severed
from the soil ?

*' See also. Sir William Jones % Reports, 243. —
A customary freeholder cannot pass his estate,
but by surrender and admission. The Plain-
tiff had no title to these ores, and therefore, on his
own shewing, is not entitled to have had the
verdict found for him."

Mr. TiLcker, on the same side, referred to the
evidence with respect to the taking of the copper
dues from the several copper mines within the
manor^ as sufficiently proving the lord's title to
all mines of copper which might be discovered in
the manor, whether in the wastes or in the old
enclosures.

120 ROWB t). BUZi^ron.'^^Argumentfar a New Trial.

Argument for the Plaintiff.

Mr. Erskine. — "I Have to request your Lord-
ships' indulgence on the present occasion, when,
in consequence of Mr. Serjeant PelFs retirement
from the bar since the trial of this cause, and the
inability of Mr. Serjeant Wilde to attend here to-
day, I find myself called upon to lead a cause of
this great importance, in which I have hitherto
acted but a subordinate part,

*' The question at issue is, whether these con-
ventionary tenants, who have taken estates of in-
heritance from the lord, and have bought and sold
their estates as such^ are entitled to retain them^
or are only to hold for seven years ? for to this
extent the argument on the other side goes : they
say that the estates are inalienable ; and there-
fore, if originally leaseholders, th^ tenants cannot
now have a greater legal interest.

*' With respect to the observation, that the
Plaintiff is not entitled to a favourable considera-
tioni I answer, that he was fighting this battle in
the dark, being denied access to the records of
of the dutchy, and to all evidence of his own
title : it was therefore all that he could do to shew
^primd facie case, so as to throw the necessity on
the other side of adducing their title.

*' The Defendant, besides, has no claim to the
indulgence or favour of this Court, as having
chosen to take the law into his own hands, and
having come with force, and a strong party of his

\

HowB «. buEnjo^^-^ Argument for aNew Trial: 121

people, to take away these oces^ when he ought to
have brought an action for recoyering them.

** The question, however, upon which this
cause must turn, is that which has been opened
by> J/f. Seiwyn, viz. what estate does a customary
freeholder tak^V

. '' By our admmum, we take an estate of inherit-
ance to be held 'accarding to the cmtom of the
manor,' but mot * at the will of the lord J This,
therefore, is a cust^miary freehold, — and it has
never yet been decided whether the customary
freeholder takes the right of soil.

** In the case of Burrell v. Dodd, the decision
waa upon a different point. And so in Doe dem.
Danvers v. Cook, which decided only that a cus-
tomary freehold might pass by will under the
description of a copyhaid estate: which we do
not deny.

" With respect to Mr. Justice Blaekstom's Trea*
tise on Copyholds, entitled as it is to all the
eneomiuni that has been be3towed upon it, it is
yet to be remembered for what purpose it was
written ; which was, merely to shew that custom-
ary freeholders w^re not pure freeholders, and,
as wch, entitled to vote at elections; for members
of ps^rliament^

*' The author cites passages from Bracton (ch.
58, % S)--Fle(a-rr^Britton (ch. 6, § 165)— Lord
Cak^ on Copyholds (32, p. 58) ;

[All which were read by Mr. Erskine.]
ftnd he observes, that the word freehold, in c^m-
moa parlance, sometimes signifies the duration

122 HOWE V. BRENTON. — Arguffientfor a New TriaL

of interest, and sometimes the nature of the
tenure. . * Where ' (he adds) * I use the words
frank'tenurey I am to be understood only as speak-
ing as to the duration of the estate/

" What, then, is the distinction between the
common copyholder and the customary freeholder ?
The common copyholder held at the will of the lord;
if he committed waste, or did other acts injurious
to the reversion, he forfeited his estate. And the
reason, according to Lord Coke, is, because he
determined the will of the lord. But when an
estate of inheritance was granted, that, not being
an estate determinable at the will of the lord, was
not subjected to forfeiture by the commission of
waste; but the tenant took an estate in all
respects similar, and entitled to the same privi-
leges, as in other estates of inheritance, subject
only to the customs of the manor. And it lies
upon the other side, therefore, to shew a custom
within the manor, by which they may limit, or
abridge, the larger interest which has been
granted unconditionally by the lord.

" This proposition is supported by the case of
Gale V. Noble, already referred to, — > which was
a trial at bar ; and to which Lord Ellenborough has
referred in the case of Brown v. Rawlins (7 East,
428).

'* It was in consequence of the duration of their
interests that copyholders of inheritance did not
forfeit their estates. And in other estates, not
being of copyhold tenure, before the statutes of
Markbridge and Gloucester, tenants for life were

ROWE V. BRENTON.— ^ilrgttj«eii^/or a New Trial. 123

not impeachable for waste ; neither were tenants
far years; because the lessor might have re-
strained them, if he had so intended, by the
letting. And with respect to leasehold estates
held for terms of years renewable, — as it is said
the estates of the cbnventionary tenants in the
assessionable manors were, — possibly these te-
nants, at the time those statutes passed, although
nominally lessees, yet might have already ac-
quired a substantial estate of inheritance, and if
so, they are not within the statutes, but are unim*
peachable for waste, as at common law/^

Mr. Jtistice Bayley. — *' The reason why a
tenant for life, without impeachment of waste;
may. cut down timber is, that he has a property
m it,

Mr. Erskine. — *' True, my Lord. And this
brings it to the simple question, whether a cus-
tomary freeholder can be impeached for waste
without a custom in the manor vesting a right to
the minerals in the lord ? If he cannot, then it
is necessary to consider the question of the ad-
missibility of the assession rolls, which I have
hitherto put out of the question.

'* As to this evidence, it is to be observed, that
the rolls contain no charge of any agent against
himself; neither is there any perception of profits,
or other extrinsic evidence in support of the
entries in the books.

" Court rolls, in former cases, have only been
used to prove customs y but not to prove facts ;
and to prove customs, reputation would be suf-

124 BOWB V. BEENTON. — Argument for a New Trial.

ficient, though it wQuld not in proof of facts ; and
there is no case to shew that such documents
have ever been admitted to prove any thing but
matters of reputation.

** In the cases cited by the other side, none
of the grounds on which the Qourt rolls were
there admitted apply here: and in many casesji
such evidence has been admitted because there
was no interest in the party making it vy^hich
would be affected by it : whereas^ in this case, the
evidence is altogether in support of the interests
of those who produce it.

** It is necessary to look at the principle on
which Court rolls are admitted in evidenipe ; it is
because they are public documents, to which all
the tenants of the manor have access, and which*
therefoire, cannot be supposed to. be falsified : but
here all the documents are kept in liondon, and
all access to them by the tenants is denied. The
entries, also, in the assession roUs and bool^^s, are
directly at variance with the admissions ; which
have, in fact, been granted by the i^teward of the
manor from 1660 down to the present time ; and
therefore the question is^ v^hich i^ to be relied
upon?

** Upon the question of the admissibility of (hese
rolls to shew what was done^ or was the custom
in other manors, I would observe, that in the
cases cited, the evidence as. to the customs of the
manors was admitted because there was no evi-
dence of the tenure, or peculiarity incidept to it,
in the particular manor ; whereas here we hayie

ROWE V. BRENTON. — Argument for a New Trial. 126

evidence of the tenui^, and that by positive com-
pact with the lord.

*' And with respect to the argument on the
other side, that these estates ^ere inalienable, —
even admitting that to be so, still, I apprehend
the grant to the Plaintiff, though it might possibly
be avoided by the next Duke of CorfHjball, yet
cannot be impeached by the grantor, and those
who claim under him,

" As to the verdict being againet the weight of
evidence, I should contend, that there was evi-
dence of a grant to us which would confer a right
to thede mines/'

Mr. Justice Bayley.-^** There are estates very
coiUmofa in Ireland something like this;. leases
for years — renewable for even

'* Is there any thing to shew that the tenants
here take estates so large as those of customary
freeholders, or as the tenant-right estates in the
north of England ?"

Mr. Erskine.' — *' I apprehend there was. —
Your Lordships will find, as to the taking the
dues of <m, that in all ancient bounds, although
in freeholds, the Duke of Cornwall was entitled to
the dues ; but in modem bounds, even in copy-
holds of inheritance, the owner of the tenement
takes them, as was proved in Mr. Carthew's case,
whose tenement is part of the same conventioriary
estate as the Plaintiff's : this evidence all had
reference to tin.

^ ** As to the enrolment of the leases being evi-
dence, I would observe, there was no patent
officer appointed for the specific purpose of en-

126 itoWE t>. BRENTON. — Argununjt foT a New Trial.

rolment; and the evidence only shewed that
search had been made for the counterpart, but
none for the lease itself.

" With respect to the'dues of copper, there was
no proof of any having been taken under any con-
ventionary tenement. There was no attempt to
prove Gewan to be a conventionary tenement.
We expressly proved it to be on the down, or
waste. Aiid as to the copper which was taken in
the iron-shaft on Plaintiff's land, the proof was
very slight ; and the copper taken by the parties
who had the tin bounds ; the Plaintiff's estate be-
ing originally bounded for tin. There was, how-
ever, evidence to shew that Wheal Pembroke cop-
per mine was in a conventionary tenement, called
Merthyn; but there the dues were received by
the owner of the tenement, and not by the Duke
of Cornwall or his lessees.

** The ores in question, after being raised by
the Plaintiff on his own land, were taken away
by the Defendant; but the Plaintiff having re-
duced them into possession, the Defendant ought
to have shewn his title, derived from the lessees
of the (dutchy. No such proof, however, was
given; and the objection was taken by Serjeant
Pell, in his address to the Jury in reply ; and
commented upon by the Judge, who held that
such proof was not necessary.

** Another misdirection, also, of the learned
Judge occurred, with respect to the reservation in
the conveyance to Mr. Rashleigh, hjs Lordship^
observing, that Mr. Rashleigk could not have
granted the mines by the grant to and admission

-mmtf^v^r'

ROWEv. BRENTON. — Argument for a J^ew Trial. 127

of Mr. Wood, the PlaintifTs trustee ; because^
being excepted out of the conveyance to him, he
had them not to grant ; whereas, your Lordships
will see that we claimed under a grant prior to
the conveyance to Mr. Rashleigh, by which^ as
we say, the minerals were conveyed by the lord
to the tenant, and were afterwards surrendered
by him into the hands of Mr. Rashleigh, who
regranted them to Wood.

*' Upon all these grounds, therefore, I submit
the Plaintiff is entitled to a new trial." *

Mr. Carter supported the same arguments
which had been urged by Mr. Erskine, and par-
ticularly pressed the inadmissibility of the asses-
sion rolls in evidence, as not being public docu-
ments, — not entitled ^^assensu omnium tenentium,'—
not charging stewards with receipts of money, —
not being returns upon the oaths of any homage
or jury, — not signed by any tenants, steward, or
auditor ; and the commissions being mere letters
from a high personage to his stewards, whose
returns do not shew any of those circumstances
yrhich the law recognises as sufficient to make
them evidence.

He contended, also, that although the estates
might not be severed from the dutchy, yet this
was not a severance or alienation, but a grant,
warranted by the custom of the manor.

* I cannot conclude this report of Mr. Erakine's speech
without expressing my ctmyiction, that I have not been able
to do justice to one of the ablest and best-delivered arguments
I have ever heard in the Court of King's Bench.

128 RowE t?. BRENTON. — Argument f Of « New Trial.

And he further noticed, that the sites of Gewan
and Wheal Change wer^ both included in the
conveyance to Rashleigh, but the minerals re-
served to the. duke ; wherefore the copper taken
there was^ without dispute, the property of the
dutchy.

8th FEBRUARY.

Mr. Serjeant Wilde. — " Having been unavoid-
ably absent during the former part of this argu-
ment, I will endeavour not to go over the same
points, but shall request your Lordships' atten-
tion principally to the questions of the admissi-
bility of the court rol}s> and their e£Seet; and
in arguing this, it seems material to consider the
relation of the parties, on which, perhaps, the ob-
jections to the admissibility are founded*

'^ The omission of the words * to hold at the
will of the lord,' in the admission granted, io
Mr. Wood, is a material test by which to try
the nature of the tenant's interest. There hajire
indeed been cases deciding that tenants may
hold at the will of the lord without these words,
but with such cases we have nothing to do ;
neither is it necessary to cite authorities to shew
that the omission of these words gives a custom-
ary freehold, where the estate is granted to hold
to the tetlant and his heirs according to Ae
custom of the manor : the case of Crouther v.
Oldfield (Salk. Rep. 365), and 1 Wm. Saund. 348,
establish that.

''Now, assuming the Plaintiff's estate to be
a customary freehold, then consider what is

ROWE V. BJiEHTot^.T- Argument for a New Trial. 129

the intfsrest of a customary freeholder : and
here it is material to notice the origin of these
estates.

*' In customary freeholds the owners were ori-
ginally /ree tenants^ but afterwards ousted by the
hand of power, and re-admitted to base interests.
From Br acton, down ,to Blackstane's treatise, it is
universally so treated."

Mr. Justice Bay ley. — *' But you don't mean to
say they were tenants in free socage ? I always
understood them to be tenants holding by base

services."

Mr. Justice Littledale. •— " What do you meaii
by the hand of power 'i Do you mean the change
introduced by the Norman Conquest ?"

Mr. Serjeant Wilde. — " Certainly. After the
Norman Conquest the tenants held by base-
services. The copyholder, holding at the will
of the lord, became a mere tenant at will, having
of course a very limited right; and what he
claims beyond that which is peculiar to every
tenant at will, he must claim as allowed by the
will of the lord, evidenced by Ihe custom, of. the
manor. And in such case, his proof being to vary>
an interest which the law has defined, and to es-
tablish an exception to a general rule, he cannot
(for example) make use of his right to commit
one species of waste by custom, in-order, to es-
tablish some further exception.

*' But a customary, freeholder has all the inci-
dents of the estate to ; which he is admitted,
limited by the. custom of the .manor. ; He is

K

130 KOWE V. BRSNTON. — Argument for a New Trial.

admitted to an estate of inheritance^ and where
custom is silent, he takes all the incidents to
such tenure. What those incidents are, I have
no means of proving, but by shewing what are
the usual incidents of estates of inheritance. But
the onus of proof is now reversed ; and if the lord
seeks to narrow this estate, and explain away
the effect of his own admission, he must give
evidence to shew the modification by the cus-
toms of the particular manor : and unless he
can do this, the tenant of an estate of inherit-
ance is, priind facie, entitled to the whole estate
in the land."

Mr. Justice Bayky. — " I think you pass over
those cases which say, that though the tenant
has a freehold in point of interest^ yet, in respect
of the tenure^ the freehold and right of soil are
in the lord ; particularly the Bishop of Winton y.
Knight (1 P. Wms. RepO-"

Mr, Serjeant Wilde. — ** The case of Gale and
Noble, in Carthew's Reports, is contradictoty to
that, and never was over-ruled; and the Bishop
of Winton v. Knight is not satisfactory, as being
(Hily an issue tried Bi Nisi Prius.'' '

Mr. Justice Bayley. — " But recognised as law
by the Court of Chancery."

The Lord Chief Justice. — "In Gale and Noble
there was no discussion as to the nature of the
rights or interest of a customary freeholder, but
it seems to have been taken for granted through-
. out that case, that if he was not A copyholder
the lord had no right to enter for a forfeiture ;

BOWE V. BRENTON. — Argument fin' a New Trial. 131

and it being decided that he was no copyholder,
the lord could not enter."

Mr. Serjeant Wilde. — *'That exactly squares
with my position : and now I come to the point —
how is it sought to cut down this tenant's inter«^
ests ? The answer is — by the court rolls ! But
it is one of the many remarkable features of this
case, that we could not get one of the court rolls,
although we served all the officers with subpoenas
for the purpose. A selection was made by the
officer of what documents he thought material;
but Mr. Abbott proves that there are rolls, which
he has left in the office, from 1660 down to the
present time ; and it appears that there are re-
gular admissions from that time to hold to the
tenant and his heirs, which, I say, is of itself
evidence of a custom from time of legal memory.

'' This is a contest by a tenant of the manor
with his lord ; and your Lordships will perceive
that the assession books are not in conformity
with the actual surrenders and admissions. None
of these v^rere produced : Mr. Abbott's evidence
shews that he chose to leave them all in town.
[The evidence was here referred to.]

^^ As against the lord, I submit that his own
grant is good, clear of all question of inalien-
ability, and although it may possibly be void as
against his successor. ,

" The latter rolls, I think, are clearly inad-
missible : they cannot be used for their antiquity,
and are contradicted by the facts which have
actually taken place.

132 ROWE V. BRENTON. — Argument for a New Trial.

"The old rolls are signed by no one, and
only recite commissions to which there are no
returns."

- The Lord Chief Justice. — ^' I think they purport
to be enrolments of commissions, and what was
done under them."

Mr. Serjeant Wilde. — " In the case oi Marriage
V. Lawrence (3 Barn, and Aid. Rep. 142), certain
public books were produced by the corporation
of Maiden as evidence of their rights, but it i^ras
held they were only private entries. The prin-
ciple, I {hink, applies to the present case, for there
is nothing of a public nature in these entries:
they are mere private matters between the lord
and his tenants ; and the party making them had
a direct interest in so doing, in order to abridge
the rights of his tenants. I cannot imagine a
stronger interest; and observe— the rolls are now
used, for this very purpose. ' They are, besides,
not the best evidence ; and the absence of court
rolls ought to have been proved before they were
admitted.

*' But what do these rolls prove ? If they
prove any thing, then this is only the first of a
long series of causes ; for every tenant under the
dutchy will now be told, — as they learnt from the
Attorney-General at Exeter, — that they are only
tenants from seven years to seven years> and
they hold at the mercy of the crown! * This is
the effect of the argument on the other side,
though' it is thought right to put forward their
claim with as modest an appearance as possible

ROWE 1?. BRENTON;— riirgtiwenf /or a New Trial. 133

in the outset, lest they should startle both the
Court and every other person by the boldness
and magnitude of their claim. It is not the
minerals only, but the very estates themselves
which they are claiming : and claimed by whom ?
not indeed by the crown— -but by its lessees :
and if the claim can be supported, then a private
individual, who bought this manor at a moderate
price, will become possessed of all these valuable
estates; and the lessees, who purchased the dues
of copper at a very trifling sum -^ a few hundred
pounds — ^will have acquired a property worth fifty
or a hundred times the value of the dues of tin,
which were bought for 18,000/. !

*' How, my Lords, are these tenants admitted
to their estates? These books, according to the
evidence, purport to be made out firom the sur-
renders and admissions; but what right, then,
have the dutchy officers to alter the whole terms
and effect of the actual admissions? '< At least,
these books ought to state the truth ! "

Mr. Justice Bay ley. — "Let me see the asses*
sion book of 1794."

Mr. Justice Littledak. — "I wish to see one
of the early books."

[The books were handed up.]

Mr. Serjeant Wilde. — " It is impossible to
disguise the difficulty of explaining, consist*
ently with the Plaintiff's title, the words pur-
porting that the repairs shall be perfected by
the tenant, which are in his admission. But
we challenge the other side to prove any one

134 ROWE V. BBBNTpN. — Argument foKT a New TriaL

instance of such repairs ever having been done
by any cowventionary tenant* . ^

** How happened it that Mr. Carthew took the
dues of the unbounded part of his tenement^
whilst the duke took the dues of the. bounded
part? This is strong proof against the present
' claim. Mr. Caerlyon, also, has taken the copper
dues as to Pembroke mine, which is in his tene-
ment."

ITie Lord Chief Justice. --^'^ Did it appear that
Carth€w\ tenement was a customary tenement ?"

Mr. Serjeant Wilde. — '* Yes : it is part of Nans-
.meitan, the same tenement as Plaintiff's."

The Lord Chief Justice. — " Was no proof given
of any rents received under these tenures ? "

Mr. Seijeant Wilde. — " None."

Mr. Justice Bayley. — ** Is it not so Mr. Sel^
tinfn, that you grant out estates pf one description,
namely, to a man and his heirs, and yet you en-
ter in your book a taking of another description,
namely, from .seven years to seven years, at a
rent, of which rent you shew no receipts?"

Mr. Selwyn. — *' It is so, my Lord."

Mr. Serjeant 'Wilde. — "There is another ma-
terial objection to this verdict. Your Lordships
will not be surprised that we, under all our dif-
ficulties, were not disposed to admit any thing
which was not proved, and particularly not the
authority under which the Defendants acted ;
for we wished especially to see the lessees'
title and their authority, and yet none such
was proved. It is attempted now to be said.

• noyrE v.BiBtB'Hrov r^ Argument for a New J^riaL 135

that it was waived by us at the trial, but which
certainly was not ike fact : for Mr. Serjeant PeU
noticed* the objection at the time, and was an-
swered by the learned Judge, who told the Jury
that no such proof ^as necessary, because the
Plaintiff had not prqved his title, which we sub-
mit was a misdirection."

The Lord Chief Justice. — " Was there any evi-
dence as to the limits of the East Crinnis mine?"

Mr. Serjeant Wilde,-^'^ None : the East Crinnis
mine adjoins Nans-mellan; it had not been
worked under Nans-mellan ; this was the first
opening of the mine in that tenement.

" The only question left to the Jury was
founded on the assumption, not only that the
court rolls were admissible as evidence, but that
they were proof aftd could not be counter-vailed
by the actual admissions of modern date. And
the verdict has found that the tenants have no
estates of inheritance, but only for seven years;
for that is the effect of it.

'* Another misdirection of the learned Judge
respected the reservation in the conveyance to
Rashleigh. I pressed my objection 4:hat we, who
claimed by a title anterior to that conveyance,,
could not be prejudiced by the exception con-
tained in it. But I was unfortunate in my argu-
ment, for the Judge answered me by saying, that
the crown having reserved the minerals out of the
grant to Mr. Rashkigh, he could not suppose
that his Majesty would have reserved to himself

136 ROWE 17. BRENTON.— ilirgumcn/ybr a New Trial,

what wasr already vested in other persons.: and
he should therefore now leave it stronger to the
Jury than he was before about to have done.

" Under all these circumstances, and particu-
larly from our unprepared state, justice requires
that : we should have a new * trial ; and if any
doubt arises, that it will be construed favour-,
ably for us." '

The Lord Chief Justice. — " The Court will con-
sider.of this case : it has been very well argued
on both sides.".

Cur. adv. vult. ,•

COURT OF KING'S BENCH.

MICHAELMAS TERM, 1825.

DOE, DEM. CARTHEW, AND OTHERS^ V. BRENTON.

This was an action of ejectment, brought by
Mr. Carthew, as owner of part of Lemellan estate
(held by the same tenure as the residue of that
estate possessed by Mr. Rowe), against the De-
fendant, to recover possession of about ten acres
of land, which the Defendant had taken posses-
sion of, and occupied, for the purpose of working
mines under it, — claiming a right to do so, as
captain of the East Crinnis Company, and by au-
thority derived from the lessees of the dutchy.

The Plaintiff claimed by his ejectment certain
mines y lands, dmd buildings. The Defendant entered
into the usual consent-rule to defend for the mines
and buildings, " together with a right of entry on the
lands to tuork the mines.'' Upon which the De-
fendant signed Jtulgment for the landi^, by default,
and su^d out a writ of possession. . The execution
of this writ the Defendant resisted, and applied
to the Lord Chiqf Jmtice in the vacation, who
made an order to restrain the execution of the
writ until the fourth day of the present Term,
And the Attorney-General afterwards obtained a
rule to shew cause why the judgment and writ of

138 DOE, DEM. CARTHEW, AND OTHERS, V. BRENTON.

possession should not be qualified by the terms
of the consent-rule; being, in effect, that the
Defendant should keep possession of the land so
far as was necessary for the purpose of working
the mines.

Mr. Erskine and Mr. Cafttr^ now shewed
cause, on behalf of Mr. Carthew^ against making
this rule absolute ; contending that the Defendant
had no right to take forcible possession of the land,
and occupy it for the purposes of mining within
it ; and that, if he had such right, he ought to be
put to his action at law to enforce it : that Mr.
Carthew considered himself to be entitled to the
mines : but if not, he stood in the same situation
as all other copyholders ; and even the lord of the
manor, if entitled to the mines, could not enter
upon the land, in order to dig them, without first
* making an agreement with the owner, or tenant
of the land, for his compensation, as had been
expressly decided. (See the Bishop of Winton v-
Knight, and other authorities, cited in Howe v.
Brenton.)

[The connsel for the Defendant were stopped
by the Court.]

The Lord Chief Justice. — " I do not regard the
form of the consent-rule; and am very clearly
of opinion that you have no right, in this way, to
obtain possession of the land. Mr. Carthew hSiB
not resorted to the proper remedy — he should not
have brought ejectment , but trespass.

*' The position is rightly laid down, that the

DOE, DEM. CARTHEW^ AlfD OTHERS^ 17. BRENTON. 139

owner of mines entering upon the land of another,
for the purpose of working the mines under it,
must first make an agreement with the owner,
or tenant of the land. But that does ncpt affect
the present question, which is only as to the pro-
per form of action for the injury alleged to have
been sustained."

Mr. Jmtice Holroyd. — "I am clearly of the
same opinion. The Defendant does not claim
the land, but only a right of entry and user of it,
for the purposes: of mining : and if he has been
guilty of excess and improper tiser of the land, you
have your remedy by an action of trespass, but
you cannot recover the right of user by ejectment.''

Rule made absolute.

THE END.

IConT^on : ^nteT^ at x%t temple Anting Office,

BY J. MOYSS, BOUVBBIS STBBBT.

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