Royal, my humble opinion is, that it will be more for her majesty's service, to direct a grant to be made ad corroborandum titulum of the petitioner, than to give any countenance to the grant, which brigadier Handisyd has made of the eleven negroes to the provost marshal, and secretary, Mr. Rigby.

April 2, 1708.

JAMES MOUNTAGUE. (19.) On the escheat of ambergris, in Jamaica, by the same lawyer.

To the right honorable the lords commissioners of trade and plantations.

May it please your lordships.

In compliance to your lordships' desires, signified to me by Mr. Popple's letter of the 12th of this instant, November, I have perused the extract of brigadier Handisyd's letter, sent me inclosed in Mr. Popple's letter, relating to some ambergris seized in Jamaica, and the prosecution thereupon, and am humbly of opinion, that the governor and queen's council there have done all that by law can be done, for recovery of this ambergris for the queen; for a jury have it in their power, whether they will give a general verdict, or a special verdict, and the most that the queen's counsel can do, is to desire them not to take upon them. the determination of matters, which, in point of law, are disputable, but find the facts specially,

and submit the points of law to the judgment of the court, and this I understand was done by the queen's attorney-general, and Mr. Brodrick, but the jury refused to give a special verdict, and found generally for the defendant against the queen. This refractoriness in the jury is oftentimes seen in our courts here, in England; and when it does happen, the queen's counsel are forced to submit, unless they can hope to get a more favourable jury returned, and then indeed they move for a new trial; but in this grand court of Jamaica, I understand it usually goes against the crown, where there is the least shadow for so doing; and therefore I much question whether granting a new trial will be of any avail; in all likelihood, it will only run the queen into greater charges and expences, for which reasons I cannot advise any thing further to be done, than what has been already directed and attempted.

Nov. 23, 1709.

JAMES MOUNTAGUE.

(20.) On the escheat of lands, and negroes, in Jamaica, by the attorney-general Northey.

To the right honorable the lords commissioners of trade and plantations.

May it please your lordships.

In obedience to your lordships' commands, signified to me by Mr. Popple, I have considered of the inclosed account of escheats, which your lordships received from the lord Archibald Hamilton,

with his observations thereon, and I do most humbly certify your lordships, that, by an act passed 21st November, 1703, intitled an act for raising a revenue to her majesty, &c., it is provided, that as well her majesty's quit-rents, fines, forfeitures, and escheats, arising within the island of Jamaica, as the impost and revenue thereby granted, shall be applied and appropriated to the support of the government of that island, and the contingent charges thereof, and to no other use, intent, or purpose, whatsoever; but not to lessen her ma jesty's power of pardoning and remitting such fines and forfeitures, (and 12501. thereof paid,) and is appropriated to the fortifications,

As to the new instruction of the 19th of February, 1708-9, to the governor restraining him from selling escheats, till an account thereof shall be transmitted to Britain, and directions received from thence, I cannot say any thing concerning that complaint, which occasioned it, or how that complaint was supported, having no account of it, except what appears in the order, by which it appears to have arisen from persons, whose titles had been questioned on such writs of escheats, and avoided: their complaints being, as stated in that order, that their titles to their lands and negroes had been so questioned, notwithstanding they had held and enjoyed the same many years, which, if without title, as by the determinations on those

writs, it appears to have been, it was not a disturbance or oppression, but a just prosecution for the rights of the crown. Another grievance was, that when the title of the crown had been established, the escheated estates had been granted to the prosecutors and informers, which I think also not an objection, for they, that had discovered the title of the crown, had reason to have a preference in purchasing the same, which could not, by the act mentioned in the statute, be for less than they were valued at by the jury finding the escheat; and, in regard, the profits of those escheats are, by that act, (approved by her majesty,) appropriated for supporting the government of that island, which, by the representation, is stated not to be sufficient for that purpose. I do not see any objection against altering that instruction, and permitting the governor to sell, from time to time, as he is allowed to do by that act, which hath been confirmed, he being satisfied that the value found is a reasonable value, and remitting accounts thereof, from time to time, to her majesty.

August 6, 1713.

EDW. NORTHEY. (21.) On the queen's right of quit-rents, in New York, by the same lawyer.

To the first quære, I am of opinion, the second patent, confirming the grant, and reserving a quit-rent, is to be taken, the quit-rent by the first grant; and, therefore, that must be accounted

for from the first grant, the land being charged with it.

To the second quære, I am of opinion, this will be the same as the other, and will ascertain the quitrent, but not discharge the arrears; and the words, in lieu of all other quit-rents, &c. import no more, than that the lands are to be holden under that rent, and under no other rent, service, &c. ; and therefore no other duties, &c. but that quit-rent, and the arrears thereof, can be demanded for those lands.

To the third quære, I am of opinion, the writ of cessavit is only where a tenure is created by the grant in fee-farm, which could not be by the grants before king James the Second came to the crown, he being a subject; but where there is a tenure, as by the crown, (the crown not being within the statute of quia emptores terrarum,) the writ of cessavit lies. However, the statutes of Westminster 2, and Gloucester, which gave the writs of cessavit, not having been put in practice on the settling that colony, nor enacted there since, I am of opinion, those laws are not the laws of that colony. July 30, 1713. EDW. NORTHEY. (22.) Mr. Fune's opinion on the king's right to treasure-trove, in the Bahamas.

To the right hon. the lords commissioners for trade and plantations.

My lords.

In obedience to your lordships' commands, sig.