1806, BOURN versus and from time immemorial have been parcel and a copyhold tenement of the said manor, demised and demisable by copy of the court-rolls thereof, by the lord RAWLINS. of the said manor for the time being, &c. at the will of the lord of the said manor, according to the custom of the said manor; and the said duke, being so seized of the said manor, whereof, &c. was by reason thereof en titled to all mines and veins of coal under the said close, &c. parcel, &c. wherefore the said defendant as the steward of the said duke, entered and by his command dug for coals, &c. The defendant replied, taking issue upon the plea of not guilty, and as to the first plea in bar, being the second plea above-mentioned, replied, that Sir Matthew White Ridley, Bart. before and at the time when, &c. was and still is seised of the said close, in which, &c. with the appurtenances, parcel of a customary tenement from time whereof, &c. holden by copy of court-roll of the manor of Tynemouth, otherwise Tynemouthshire, with the appurtenances in his demesne as of fee, according to the custom of the said manor; that the said Sir M. W. Ridley, demised for a year to the plaintiff, who entered and was possessed, &c.; that the defendant, de injuria sua propria, committed the said residue of the trespasses; and traversed, that the said close in which, &c. now is, and at the said several times when, &c. was the close, soil, and freehold of the said duke, in manner and form, &c. and as to the second plea in bar, being the third plea, the defendant replied as before, that Sir M. IV. Ridley, was seised in his demesne as of fee of the close as a customary tenement, and demised to the plaintiff, and concluded with a traverse that "as well the said close, in which, &c. as the said other lands in Backworth aforesaid, in that behalf mentioned, were and are, and from time immemorial have been, parcel and a copyhold tenement of the said manor, demised and demisable the copy of the court-rolls thereof, by the lord of the said manor, for the time being, or by his steward of the court of the said manor, for the time being, to any person or persons willing to take the same in fee simple, or otherwise, at the will of the lord of the same manor, according to the custom of the same manor, in manner and form, &c. and in the replication issue was taken on the first plea in bar, that the locus in quo, was the close, soil, and freehold of the duke; and also, upon the traverse in the second, that the locus in quo, and the other land was copyhold, parcel of his manor, and held at the will of the lord. The cause was tried at the last assizes for the county of Northumberland before CHAMBRE, J. The real question in the cause was between the Duke of Northumberland, and Mr. Grey, of Backworth, for whom Sir M. W. Ridley was a trustee under his marriagesettlement, and the question was, whether the duke was entitled to the coal mines under the estate, which he would be, as being lord of the manor, if it were copyhold; or whether the customary tenant was entitled, which he would be,if it were not copyhold held at the will of the lord. And, at the trial, it was proved, on the part of the duke, that his ancestor's title commenced by grant, by letters patent of the 16th of March, 9 Car. I. A.D. 1663, whereby the king granted unto W. Scriven and Philip Eden, Esqrs. and their heirs inter alia the manor of Tynemouth, otherwise Tynemouthshire, by the description of all that our lordship called Tynemouthshire, in our county of Northumberland, with all and singular its rights, members, and appurtenances, &c. and all our lordships,manors, towns, &c., inter alia, of Backworth, lately parcel of the lands and possessions of the monastery of Tynemouth in the said county; that is to say, inter alia all those ten tenements of husbandry, with . the appurtenances, in Backworth, now or lately in the several tenures of A. B. &c. or some of them, at the 1806. BOURN versus RAWLINS 1806. BOURN will of the lord, by the particulars thereof mentioned to be of the annual rate or value of 101. &c. excepting the mines of coals and veins of coal within the RAWLINS. lands, grounds, and fields of Murton Bellimore and versus Bellinulmore, otherwise Killenworthmore, and all advowsons to hold to them in fee, as of the manor of East Greenwich, in the county of Kent, in free and common socage. That, by bargain and sale dated August 2d, 1633, the same premises were conveyed to Henry Taylor and Thomas Cartwright, in fee, to hold as aforesaid; and by bargain and sale, March 16th, 1640, they the said H. T. and T.C. conveyed to Algernon, Earl of Northumberland, and his heirs, stating that they were only trustees for him; and from him the present duke claimed. That by the minister's ac counts which were produced from the augmentation office, taken from the 30th to the 31st Hen. VIII. A.D. 1540, they were stated as follows Tynemouth," account of Backworth, Thomas Dynevand, collector of the rents, of rent of certain lands in Backworth, at the will of the lord. The court-rolls of the manor were produced, the oldest of which were in 1662, containing admissions of several tenants, viz. Weedon, Calla, Gosswick, and Dynnands, to hold at the will of the lord. One of the admissions was as fol lows, 1663. Oliverius Ogle, tenens customarius hujus manerii, qui de domino tenuit unum custumarium tenementum in Backworth, infra menerium de Tynemouth &c. in, &c. sursum reddidit, in manus domini, per manus, J. C. et B. P. 2 Cust. tenent, secundum consuetudinem ejusdem manerii ad opus et usum predicti Radulpho Hæredibus et assignatis suis, unde ad curiam prædictus Radulphusvenit et petit se admitti tenemento; et concessit ei habend. et tenend sibi et heredibus suis ad voluntatem dominé, &c. subject to certain services: The rolls were also produced from 1464 to the present time, and amongst other the following; 18th April, 1677, in Latin, the homage present, that “ Ralph Grey a customary tenant of this manor, died seized of six several customary tenements at Backworth, and thereupon, in the same court, Ralph Grey prays to be admitted tenant thereof. To which said Ralph Grey, the lord by his steward hath granted seisin thereof, to bave, and to hold the seven separate tenements aforesaid, to him and his heirs according to the custom of husbandry." Other admissions of the like nature were read of the 16th of April, 1679, 1684, and 1687, of the ancestors of Mr. Grey, to hold at the will of the lord, according to the custom of the manor ; and on the 17 th of April, 1777, Matthew Bell by the desire of R. Grey: surrendered to Sir M.W. Ridley and another, their heirs and assigns, according to the custom of the manor; and they are admitted at the will of the lord." And on the 25th of April, 1771, Mr. Grey was on the homage, when a person of the name of Bell who was a trustee, with his direction, surrendered, into the hands of the lord, a customary tenement, to hold at the will of the lord, according to the custom of husbandry of the manor, This was the documentary evidence from the courtrolls. It was then proved by one of the witnesses, the steward, that no copyhold tenant ever bored for coals. in the manor of Tynemouth, in his own right, and he must have known if such a thing had been done. A person who had been agent for 30 years said he knew no instance of a copyholder in Tynemouth having bored for coals. Mr.Grey himself had tried to dig for coals. some 13 or 14 years ago; but it was in his own freehold; that this property was in the nature of copyhold not freehold, and that he believed there were coals in Backworth, Another witness then produced a lease dated 1713, whereby the Duke and Duchess of Somer-set demised to John Atkinson all coal pits, coal mines, 3 G NO. XXXIII. N. $. 1806. BOURN versus RAWLINS, 1806. BOURN versus RAWLINS! open and not open,lying under certain lands within the township and territories of Whitley (which is another of the townships in the manor of Tynemouth), at a rent of 1001. whether wrought or not; and other leases were produced of different dates, of coal mines in the townships of Preston, and a lease 24th of September, 1775, from the Duke of Northumberland to H. Hudson of Whitley, in consideration of the surrender of the former lease, of limestone quarries within and under the copyhold tenement of the said Hudson called Whitley park, with an exception of a way leave to the duke, to his other mines, at a rent of 2501. which rent had been received. On the part of the plaintiff was produced a decree of the court of Exchequer in Easter term, 89th of Eliz. April 14th, stating that the complainants by their bill alleged that they and their ancestors, time out of mind, had been seised of several tenements within Chirton, Preston, Whitley, Monkseaton, Murton, Earsdon and Backworth, in Tynemouthshire, in the county of Northumberland, and held the same some time of the prior of Tynemouth, and since the dissolution thereof, of her majesty by copy of court-roll according to the custom, of the manor of Tynemouth paying their rents, doing their services upon the borders, and for the defence of Tynemouth castle from invasion, at their own charges. It then stated, that they paid one half their rents in corn by the Winchester bushel, until one Peter Delaval and other farmers of her majesty compelled them to pay by the Newcastle bushel. Delaval in his answer, alleged, that the queen was seised of the manor of Tynemouth, in fee, and of certain tenements in Prestan, &c. and Backworth, as parcel of that manor, which were holden by certain rents by copy of courtroll, according to the custom, paying their duties and services, and granted the same to the late earl of Northumberland; and that he, as servant to the Earl, and by his commandment, demanded the rent, accord |