case attorneygeneral and other appellant John wall and other respondent that  February on the hear of a information bring for the recovery of certain I duty  the court of chancery propose to the attorneygeneral a issue to try whether  the crown or its lessee be by custom entitle to those duty but the issue be  refuse the information be dismiss on a appeal the decree be reverse and proper  issue to try the custom be direct in the hundred of high peak in the county of  Derby there be a district call the king field or king fee in which all the  king subject have immemorially have a right to sink and search for i or vein  of lead over church churchyard house garden orchard and highway except and to  get the over out of such i for their own use and benefit pay to his majesty  and his successor his and their lessee and farmer certain duty call lot and  cope the lot be brown er p every thirteenth dish of over dress and make  merchantable the cope be four penny for every lot of over which load weigh  about pound and contain nine dish the dish be a wooden measure about twentyone  inch long six inch and a half broad and four inch deep in which all the over  when dress and separate from the dirt and base mineral which adhere to it when  it first come out of the I have immemorially be measure and the right and  interest both of the king his lessee and farmer and of the miner within all  part of this district have immemorially be govern by the same law usage and  custom king Edward I by a commission date the that of April in the that year  of his reign direct to the then sheriff of the county of Derby signify to he  that he have assign Reginald of the lie and William of Meynill to inquire by  the oath of good and lawful man of the county of the liberty which the king  miner then claim to have in those part and which they have hitherto use to  have and by what mean and how and from what time and by what warrant and  command the sheriff that at a certain day and place which the say Reginald  brown and William shall appoint he shall cause to come before they so many and  such good and lawful man of his bailiwick by which the truth of the premise  may be best know in obedience to this commission a inquisition be take at  Ashborne in the say county upon Saturday next after he holy Trinity in the  same year before the say Reginald and William by the oath of twelve person  therein name in which inquisition it be find among other thing as follow  videlicet et de minera gain in hujusmodi need in fee domini king dominus king  to have pro rule his tertian for the tenth time paten who to say Le loath haec  as far as this use are pro haec autem lord king to come upon mineratoribus  book entry et landing place ad mineram svan to bear et cariandam usque ad  regian way his majesty and his predecessor have immemorially appoint a officer  in the district of the king field in high peak call a barmaster and such  barmaster have from time to time appoint deputy barmasters in particular place  within his district who office it be to keep the king dish and attend the  measure the over to keep a account thereof for the king his lessee and farmer  and the proprietor of the i and their agent and to collect the aforesaid duty  the over come out of the I intermix with various substance or base mineral  call Kaulk Keval spar etcetera which produce no profit and be necessary to be  separate from the over in a course of dress before it can be make merchantable  and fit to be measure by the king dish the over be distinguish by various name  in the process of dress when it first come out of the I it be call fall or  boose the pure rich and clean part of it be dress by a instrument call a  chippinghammer which chip and separate the base mineral from it without the  use of water and make it sizeable for the dish and such over when so dress be  call bing or round over that part of the over which be thin and more intermix  with base mineral be necessary to be break small before those base mineral can  be separate from it which be do by a flat iron instrument call a bucker and in  order to separate the dirt and base mineral from it it be put into riddle and  sieve as necessary and usual instrument and by the work thereof in water the  dirt and base mineral be separate from the over and the over which remain when  so dress be call peaze over that part of the over which from the smallness of  its particle go through the sieve in dress the peaze over be afterward wash  again in other sieve and the dirt and base mineral separate from it and it be  then call smytham or offal and what remain in the sludge and dirt after the  smytham be take away consist of the minute particle of over which have be  pulverize in dress the other kind and by modern art and invention be capable  of be smell into lead by be put into a furnace with the sand and small  particle of dirt from which it can be separate and this be call belland brown  the duke of Devonshire and his ancestor have for about seventy year be entitle  to the lot and cope and all other profit arise from the lead i in this  district and to the office of barmaster within the same by virtue of several  lease from his majesty and his predecessor of which many year be yet to come  in the district of high peak there be several town will hamlet or place brown  er p call Winster Taddington Monyash Chelmorton flag Prescliff Upper Haddon  Castleton Bradwall great Hucklow little Hucklow and hope which be all govern  by the same mineral law usage and custom the appellant and his ancestor have  let to farm the mineral duty arise within the will or place call Castleton  Bradwall great Hucklow little Hucklow and hope lie on the north side of a  certain river call the Wye for all or much the great part of the time which  they have hold and enjoy the same under such lease and have during that time  keep in their own hand and by their agent receive the mineral duty arise  within Winster and the other town and place the thirteenth dish of all the  several species and kind of over have constant be collect and receive as the  duty of lot by the several person who have hold and enjoy the mineral duty in  the will or place let to farm by the appellant and his ancestor but the  appellant and his ancestor to encourage miner and mineral pursuit have  frequent remit part of the duty call the lot within the town and place call  Winster and the other town will and place where they have keep the mineral  duty in their own hand and have not strict take the thirteenth dish of the  over call smytham or offal the same be former of little estimation and gain  after the bing and peaze over have be make by a expensive dress but the deputy  barmasters have in many instance when they have think that indulgence abuse  take lot of the smytham or offal as well as of the other over in the liberty  of Winster and in the other will and liberty where the mineral duty have be  keep in hand in the respondent together with the duke of Devonshire the  appellant late father become possess of a lead I call Portaway I in the  liberty of Winster which they work and enjoy and get thereout upward of load  of pure and valuable lead over which be sell for pound and upward and ought to  have produce to the appellant and his late father pound S d as the value of a  thirteenth part thereof for their duty of lot but the respondent under colour  of the indulgence show by the appellant and his ancestor in remit the lot of  smytham or offal over and with intent to defeat the right of his majesty to  the thirteenth dish of over for the duty of lot do in the course of dress the  over get at the say I from the say year to November the time of fill the  information and bill after mention unnecessary wilful and design break and  beat down into what they have call smytham or brown offal over and belland  nine part in ten and upon a medium from the year to the year five part in six  of all the over get at the say I so that instead of the respondent pay one  thirteenth part thereof for the duty of lot they do not pay for the first six  year above one dish of over in and upon a medium during all the time aforesaid  not more than one that part of the whole and to complete their fraud they take  one George Tissington who have be appoint by the appellant late father deputy  barmaster of the liberty of Winster and who duty it be to have prevent such  attempt into their service and employ he as their agent to superintend the  management of other i belong to they and allow he considerable salary for such  his employment and introduce a new method at Portaway I for the work miner to  allow Tissington as deputy barmaster S for every twenty load of over measure  at the I and compel their workman to pay he that sum which be never require by  or pay to any former deputy barmaster the respondent also in order to bias the  common work miner who they make their instrument of the fraud agree with they  to get and dress the over at the I at a certain price per load and make it  part of such agreement that they shall not be pay any thing for get and dress  that part of the over which be to be take as the lot and by such mean the  respondent make it great to the advantage of the work miner to break down all  the over into what they call smytham or offal the common price which the  respondent pay for get and dress the over be about S per load on a medium and  the expense of break down bing or peaze over into smytham or offal not above  four penny or six penny per load and the over which be make into smytham or  offal at the I since the year have be sell at the same price as the bing and  peaze over pro brown er p duced from the I and in further fraud of the duty of  lot the respondent by their workman and servant at the I frequent break down  bing and peaze over after it have be dress and make merchantable into what  they call and measure as smytham or offal over and be great gainer thereby and  to protect their fraudulent design from be discover the respondent frequent  give direction to their workman to conceal the over when the duke be agent  come to inspect the I the late duke in the year find the indulgence by  remission of the duty of lot for smytham or offal over so gross abuse by these  practice at the I and that instead of receive one dish of over in thirteen for  his duty of lot he do not receive above one dish in one hundred and thirty  think it absolute necessary to maintain and support the undoubted right which  his majesty and his grace as lessee have to the thirteenth dish of all over  dress and make merchantable and to seek a satisfaction for the same and accord  in Michaelmas term a information and bill by his majesty then attorneygeneral  and the duke be exhibit in the court of chancery against the brown respondent  and the say George Tissington which be afterward several time amend insist  upon and claim a right to every thirteenth dish or measure of all lead over  get within the district call the king field in high peak as due Payable and of  right belong to his majesty his lessee or farmer by the miner ready dress  cleanse and make merchantable and that no part of the over be of right exempt  from payment of that duty and thereby among other thing charge the respondent  and the say George Tissington with many act of fraud and imposition in beat  down and dress the over and with introduce riddle as gauges or standard to  ascertain what the respondent call smytham or offal and vary and enlarge the  hole thereof and particular that the say George Tissington in one of his book  of account enter the follow memorandum in large character with his own hand  videlicet that in the year and Winster liberty produce eleven load of smytham  for one load of be that pay duty and that riddle be alter at Christmas to  sixteen hole in six inch and to remain as a standard the information and bill  therefore pray a account of all the over get and raise at the I since the year  and that the duke may be pay what shall appear due to he for the duty call the  lot and that the same may be pay for the future and that his majesty right to  the inheritance of the thirteenth dish or measure of all over get out of the I  and his grace interest therein during the term of his lease may be establish  the respondent put in several answer to this original and amend information  and bill and thereby allege that within the hundred of high peak there be many  manor liberty or district call the king field wherein all the king subject  have be use and accustom and for time immemorial have and ought to have a  right to seek and search for i or vein of lead over in all manner of ground of  who inheritance soever and to get the lead over out of such i for their own  use and benefit conform to the several custom of the respective liberty in  which such i lie and pay to his majesty and his predecessor or his or their  lessee such customary payment or duty as have be pay accord to the several  custom have and use in the different liberty within the king field and  particular throughout the liberty of Winster the thirteenth dish of all lead  over call bing or round over and peaze over for the lot that the dish use in  the liberty of Winster be a certain measure twentyone inch and one quarter  long four inch deep and six inch and one quarter wide which have be  immemorially use as a common and customary measure for measure over and pay  the duty of lot and that nine dish make a load of over they admit that his  majesty and his predecessor king of England have immemorially a right to  appoint and have appoint officer over the lead i in the king field call  barmasters and that the barmasters upon enter into such office do or brown  ought to take a oath to do justice between the king and the Lord of the field  and between miner and miner and that it be the duty of each barmaster either  by himself or some other person authorize by he to attend the measure of over  at every I within his district to see the over when fair dress and make  merchantable measure out by the king dish they brown er p also admit that the  different sort of over get within the liberty of Winster be know by the name  of bing or round over peaze over smytham and belland and say that the  thirteenth dish of bing or round over and peaze over be due and Payable for  the duty of lot but that no duty be Payable for smytham and belland that the  bing or round over be compose of the rich part of the over and be make  merchantable without the use of any other implement than the chip hammer and  that the peaze over smytham and belland be compose of the chip waste or refuse  of the bing or round over and out of such poor over as from its mixture with  earth and mineral be often time oblige to be cleanse with water to separate it  from the earth and rubbish and always of necessity beat into small piece and  wash the small part of it general twice over by the use of a sieve in a vessel  fill with water that be the only method know to the respondent for separate  the dirt and rubbish from the over last mention of which one part go through  the sieve and that which remain in it be put into a riddle through which all  that pass be add to that which go through the sieve and be call smytham and  the other part be too large to pass through the riddle be lie by and call  peaze over and be subject to the duty of lot that belIand be the small fort of  smytham and arise from such small part or particle as accidental or avoidable  in get the over in the I and in dress and cleanse it fall among the dirt and  rubbish and become so intermix therewith that it have be usual throw away as  useless and not capable of be cleanse or separate from the dirt to profit but  of late year by wash and cleanse after a new method have at the expense of  about half its value be render profitable to the miner they also state that  William Robert the appellant barmaster at Winster deliver riddle at different  i in the liberty particular one at burn drake I as a riddle of a customary  size and which be leave with William Goodwin overseer of that I who be also  overseer at Portaway which riddle be of the customary size and they have mark  it W g and have leave the same with their clerk in court the hole or mesh  whereof be of the ordinary common size immemorially use within the liberty of  Winster they insist that the say riddle have be immemorially use not only  throughout the liberty of Winster but throughout all the liberty parcel of the  king field south of the river Wye within the hundred of high peak as a  reasonable standard time out of mind agree upon and observe between the miner  and the crown and its lessee and that the hole or mesh of such riddle be of  size brown or dimension well know among miner and have be constant and  immemorially claim and insist upon by the miner within the liberty of Winster  as a matter of right to ascertain and determine what over shall be liable to  the duty of lot and have be use for no other purpose whatsoever that all miner  within the king field have immemorially take and pursue as they have a right  to do what method they judge most proper for get cleanse dress and make  merchantable the lead over get within any of the i within the king field and  that there be no law usage or custom to compel or direct the miner in what  manner or by what mean they shall cleanse dress or manage the same that it  have be customary time immemorial for the miner of Winster to riddle their  over without give notice to the barmaster or his deputy and that the same have  be always do and that it be not incumbent on the miner to give any such notice  because the over be public riddle and the barmaster or his deputy or the agent  of the king and his lessee may attend riddle the same if they think fit they  admit that the duty of lot from the year to the that of June have only amount  to one thirteenth of a nine or ten part of all the over get at the I and that  a thirteenth part of such nine or ten part have be pay for the duty of lot to  the relator or his barmaster from the year inclusive to the that of June and  they also admit that the duty of lot have only amount one year with another to  one thirteenth of one eight or nine of all over get at the I and also that to  the that of June each sort of over except belland have be sell by they at the  same price they likewise admit that the payment of the duty of lot may be  elude or avoid by design break the over into small piece than be necessary to  make the same merchantable and that it may be beat into such small piece as to  pass through riddle brown er p with hole of very small size and make capable  of be pulverize but that it be not for the miner advantage so to break it  because they will be loser thereby in September the vein in Portaway I become  so divide that the late duke as farmer of the mineral duty and by the mineral  law and custom become entitle to the vein for a certain extent and have a  right to enter upon and work the same but on the d of December follow it be  agree between he and the proprietor and partner of the I that the same shall  be set by the respondent overseer to their own workman for one cope or bargain  of seven week and that the duke shall be at liberty by his agent to inspect  the work of it and shall employ his own labourer and workman in dress and make  the over merchantable and that the riddle which the respondent have before use  and insist upon as a gage or standard for determine what over shall and what  shall not be liable to the duty of lot shall be use on that occasion but  without prejudice to either party brown accord on the same day the vein be set  on cope for seven week and the over be get and dress pursuant to the agreement  and it amount during that time after the thirteenth part for the duty of lot  be deduct to load and one dish of bing over load and three dish of peaze over  load and two dish of smytham and load and two dish of belland so that although  the over be separate accord to the riddle contend for by the respondent near  two three thereof be make into bing and peaze over and if the weather have not  be frosty and unfavourable for dress over a much large proportion may have be  make of those sort in July a supplemental information and bill be exhibit by  his majesty attorneygeneral and the late duke set forth the several matter  last mention to which the respondent afterward put in their answer and admit  these fact but insist that the I be rich and the over strong during the  experimental cope than it have be at any time before to prevent any  inconvenience arise from a stop be put to work the I while the dispute be  depend between the party it be agree on the that of July that the value of the  thirteenth dish of all over get at the I shall be pay into the bank every six  month in the name of the accomptantgeneral of the court of chancery to be  place to the credit of the cause and subject to further order and accord  several sum of money under different order of the court be pay into the bank  by the respondent without prejudice and afterward lie out in the purchase of  bank pound per cent annuity subject to further order which at length amount to  pound S d bank pound per cent annuity and pound S d cash pen these several  proceed the suit become abate by the death of the late duke and some other of  the party but be duly revive the cause be at issue and several witness be  examine on both side on the that and saint of January and on the d that that  that that that that and that of February the cause come on to be hear before  the Lord keeper Henley on one of which day his lordship be please to propose  to the appellant his majesty attorneygeneral on behalf of the crown a trial at  law on the follow issue whether the crown its lessee or farmer have time out  of mind take the thirteenth dish of all over raise and get at the I which the  say appellant on behalf of the crown refuse to accept it be apprehend that  such issue be whole immaterial as the appellant have throughout the proceed in  the cause admit that the miner have be frequent indulge with take or retain to  their own use the smytham or offal over and therefore on the say that of  February his lordship order that the information shall stand dismiss as  against George Tissington without cost and that the attorneygeneral decline to  try the right of the crown at law so much of the information as seek to  establish such claim shall stand dismiss without brown cost and it be refer to  the master to take a account of what be due to the appellant the duke of  Devonshire for all bing and peaze over which have be raise and cleanse since  the first work of the say Portaway I in the year and it be order that the  master shall inquire whether any rough over fit and proper accord to the usual  and fair course of work the I to be make into bing brown er p or peaze over  have be convert into smytham and if the master shall find any such over to  have be unfair work into smytham it be further order that he shall make a  allowance to the appellant the duke of Devonshire for one thirteenth part  thereof and the consideration of cost and of all further direction be reserve  until after the master shall have make his report the appellant apprehend this  decree to be prejudicial to the right and interest of the crown as well as the  duke its lessee bring the present appeal and on their behalf it be argue c  Pratt c York that his majesty royal predecessor be seize as lord and owner of  the soil of the district call the king field or king fee in the hundred of  high peak have of common right all the mineral within it and must be presume  to have grant the privilege of search for and get the mineral under certain  regulation and on payment of certain mineral duty that the commencement of  this privilege from its great antiquity be not capable of be actual prove but  the evidence arise from the inquisition in the reign of Edward I which find  that his they majesty be entitle to the thirteenth dish of the over gain at  the i ought to have be sufficient to establish and ascertain his majesty right  so far at least as to have put the respondent upon show a proper exemption of  what they call smytham or offal over from the payment of the duty of lot the  inquisition produce be a record of great authority and the best evidence which  the nature of the case after such a length of time will possible admit that  every custom which tend to abridge or restrain right flow from the dominion of  the soil or due at commonlaw ought to be certain free from fraud and to have  have a reasonable commencement but the custom set up by the respondent to  exempt smytham or offal over from the payment of the duty of lot and which by  this decree stand unimpeached want every one of these requisite and be  therefore void in law for it be not only uncertain as it do not precise define  and set forth what smytham or offal over be nor what certain quantity or  proportion of the over ought to be exempt from that duty but it be  unreasonable and productive of the gross fraud as it put it in the power of  the miner who interest it be to annihilate the duty itself and total subvert  the right to the thing out of which the exemption itself must be suppose to  have spring the respondent claim by their answer a customary method of dress  their over as they please by which they may with the great facility at the  expense of about one eight part of the value break down every part of it into  what brown they call smytham or offal over which be of equal value with the  bing and peaze over that instead of propose a issue to the attorneygeneral to  try whether the crown its lessee or farmer have take time out of mind the  thirteenth dish of all the over raise and get at the I the decree ought either  to have confirm the king right to the reservation claim which be part of the  ancient royal dominion over the soil and mineral within it ascertain and  establish by the inquisition or to have put a issue upon the respondent to try  the validity of the customary exemption allege and insist on by their answer  but it be object that it do not appear by the inquisition that the duty of lot  ought to be the thirteenth dish of over dress and make merchantable but of  rough over as it come out of the I to this it be answer that the true  construction of the inquisition must be the thirteenth dish of over dress and  make merchantable the word minera gain therein mention import the same beside  the dish immemorially use for measure the over as admit by the respondent  answer from the size and dimension of it be not adapt nor can be make use of  to measure rough over as it come out of the I the over in that state consist  of large piece frequent intermix with base mineral and not capable of be  contain in this dish which have only be use for measure over dress and make  merchantable and the respondent be so conscious of that usage and construction  that they do not by their answer insist upon any other it be also object that  smytham or offal over within this district have by custom for time immemorial  be exempt from the duty of lot and that smytham be well know and distinguish  from bing and peaze over by the use of a riddle with hole and mesh of a know  customary size but to this it be answer that the custom so allege if true in  fact be void in law for the reason before mention that in many part of the  district where the duke and his ancestor have let the brown er p mineral duty  to undertenant there be not the least colour or pretence for the custom but  the duty of lot be take indiscriminate for all sort of over as have be prove  and as the respondent themselves have admit by their answer that of common  right and by the inquisition his majesty and his predecessor be and have be  entitle to the same mineral duty in every part of the district and have always  grant they to their lessee in one lease and under one entire rend without any  distinction whatsoever that in those part of the district where the mineral  duty have be keep in hand and receive by the duke and his ancestor indulgence  have be show to the miner and that part of the over which from its poverty and  the difficulty and expense of separate it from the base mineral in the course  of dress obtain the name of smytham or offal have be frequent excuse from the  payment of the duty of lot in order to encourage mineral experiment that  riddle have be use as necessary brown instrument in the cleanse and dress of  over as well at time where duty have be pay for the whole as where a exemption  for smytham have be claim the respondent the better to cover their fraud in  the abuse of the indulgence have attempt to introduce riddle as gauge or  standard to determine what over shall be liable to the duty of lot and under  that subterfuge instead of confine the smytham over to what it former be and  what they themselves have call it in their answer offal have extend it to all  over which by dress as they please they can make small enough to pass through  such riddle and when they find the hole thereof too small for their purpose  they enlarge they at pleasure but never fix they at any certain size so that  it be total uncertain what that usual customary size be so much urge and so  strong insist on by the respondent answer No determinate dimension be prove or  even allege and the only riddle produce by the respondent in the cause as the  true standard be one obtain by contrivance from Robert the barmaster three  week after he be appoint to that office and after the present dispute be begin  and a short time before the commencement of the suit and this riddle so obtain  be the only one that have be show to the respondent witness as the true  unerring instrument to decide between the lord and the miner but after all if  the size of the riddle can be better ascertain than it be it can not from the  nature of the thing be a equal gage to distinguish smytham from bing or peaze  over because the miner can when he please and with the great ease break down  the large over into piece small enough to pass through any riddle whatsoever  and this fraud be prove to have be in fact commit for when the workman have  make more bing and peaze over than the respondent think well of though by a  regular and proper course of dress they cause the bing and peaze over to be  beat down into smytham that the respondent have be so successful in their  attempt of pulverizing smytham that they have make as appear by their answer  nine part in ten of the over get at the I into what they call smytham which be  so far from the nature of offal that it be sell at the same price as the bing  and peaze over and thereby elude the payment of the lot for those nine part  and consequent instead of pay one dish in thirteen will only pay one dish in  for such duty although as a far proof of the fraud it appear that the over get  at the I and dress and separate by the riddle during the time that the late  duke have the work thereof produce two three of bing and peaze over that the  decree have direct a account to be take without any rule prescribe in the  manner of take it the uncertain arbitrary meaning of the word smytham not be  define upon the result of the evidence by any declaration insert in the decree  nor any gage establish as a measure for ascertain those species of over out of  which the duty in question be to be pay but suppose there have be any ground  to have determine that smytham brown over ought to be free from the duty of  lot as not be dependent upon the will and pleasure of the miner and more easy  definable than it be and also that the riddle insist on by the respondent be  the certain gage or standard to distinguish it from the other over in the  course of dress yet as the respondent have be guilty of such gross fraud in  dress the over to avoid the duty of lot by intermix and confound one kind with  another and thereby render it impossible for the duke to prove before the  master who be direct by the decree to take the account what particular damage  he have sustain the decree ought to have direct a account to be take and the  thirteenth dish to have brown er p be pay by the respondent for all the over  get dress and make merchantable at the I on the other side it be insist I  Hewitt r Wilbraham that the claim set up by the information and bill of the  duty of lot for all over be admit not to be find on common right but on custom  only and the proper evidence of a customary right be usage and in the present  case the usage be full prove by the witness on both side not to extend to all  over but to the assortment of bing and peaze over only and not to smytham or  belland there be no foundation for such claim but if there have be evidence of  usage in support of the claim yet as there be the clear evidence that the  custom do not extend to all sort of over and as claim to right of inheritance  especial those that be find on custom depend on fact and be proper triable by  a jury and as court of equity never establish customary right when controvert  without a trial at law and as the attorneygeneral on behalf of the crown be  please to decline such trial the court of chancery have no power to make a  decree to establish the customary right insist on by the appellant or to  decree any account thereon as to the inquisition so much rely upon as evidence  of the right of the crown it by no mean prove such right for saint it appear  to have be take by two person name who seem to have be appoint by the crown by  some commission but no such commission appear nor do it appear that these two  person be officer of the I or of the crown except pro here vice nor do it  appear that any evidence be give thereon or that any defence or opposition be  make thereto so that the whole proceed seem questionable in respect of its  authority and be indisputable no more than a inquiry ex part d it be very  imperfect and defective not have find the custom of i nor the cope or  forfeiture which be very considerable nor prim gap or several other particular  of the custom which now appear to subsist and therefore the respondent may  with equal reason insist on be discharge from cope and other claim of the  crown not find as the crown may insist on lot of all over contrary to  establish and avow usage d the find in this inquisition do not correspond with  the claim of lot upon all over make merchantable as insist on by the appellant  brown nor can it deserve any credit if it have find that all over general be  lotable in regard the full ten part of bing and peaze over be first set out  for tithe and have never be lotable on the south side of the river Wye and  that the inquisition be not relative either to the high or low peak particular  which it be admit by the appellant be different and distinct district and  govern by different and distinct law and custom but to the peak in general but  if this inquisition be less liable to objection yet it will at most be matter  of evidence only and as all other ancient evidence in general liable to be  explain and encounter by other evidence of usage which in the present case  total contradict and subvert it the appellant contend by the information and  bill that if smytham be exempt from the duty of lot the miner may beat down  all the over to smytham and thereby total defeat the crown of the duty and  that therefore such exemption be inconsistent with and repugnant to the custom  and consequent can not exist but it appear from the plead and proof that  smytham be a assortment of over clear and certain know and distinguishable by  miner and that the size of the mesh of the riddle which have be use for  separate the same from peaze over within the liberty of Winster be equal  certain and know and that the respondent insist upon a exemption of such  smytham only as be fair make in the usual and ordinary course and manner of  make the over merchantable and it be worthy observation that though there be  and have be several hundred i within the liberty on the south side of the  river Wye and many thousand of man and woman employ therein in cleanse the  over and make the same merchantable yet there be no evidence in the cause that  any complaint have ever be make of any fraud commit in this business till the  present controversy begin that the fraud charge against the respondent in  unfair work the I in question and undue break the bing and peaze over into  smytham and belland in order to avoid the duty of lot imply what be contend  for by the respondent videlicet that smytham or offal and belland be in  general not liable to the duty of lot and be absolute inconsistent with the  general brown er p right set up by the appellant but as the particular  instance of the pretend fraud be not point out in the information and bill it  be impossible for the respondent to exculpate themselves so full as they hope  to do before the master upon the inquiry direct by the decree that the  adventure in i be of vast public utility by employ a multitude of useful hand  and tend great to advance the commerce of the kingdom but such adventure be  attend with a very great and certain expense yet very uncertain as to the  profit and upon a average be attend with loss consequent if the custom contend  for by the appellant shall be establish many miner will be deter from such  hazardous adventure that when the I in question be grant to the respondent  wall by the brown appellant barmaster to be enjoy accord to the mineral custom  within the liberty of Winster and when Mr wall grant out the several share to  his partner it be well know to they that for time immemorial the customary  duty of lot have be Payable for bing and peaze over only and not for smytham  or offal and belland the same be likewise well know to the lessee of the crown  when they obtain their lease it be therefore apprehend that the respondent  ought to enjoy the I accord as they become adventurer upon the faith and  credit of such usage and if they shall be make subject to this new claim of  the appellant there will be a end of all deal in i that there be and for time  immemorial have be many hundred different i in work on the south side of the  river Wye none of which ever pay or have be call upon to pay lot for smytham  or offal or belland and therefore the produce thereof must have be distribute  among the respective adventurer and apply and dispose of in such manner as  their several occasion require but if the appellant shall succeed in their  present claim such adventurer and their respective representative will be  liable to account for and pay this duty of lot for such smytham which will  expose some thousand of family to total ruin and destruction it be therefore  hope that the decree will be affirm and the appeal dismiss with exemplary cost  after hear counsel on this appeal for six several day it be order and adjudge  that so much of the decree as be complain of by the appeal shall be reverse  and it be further order that the party shall proceed to a trial at law at the  bar of the court of king bench by a special jury of the county of Middlesex at  such time as that court shall appoint on the follow issue videlicet saint what  part of the lead over get dress and make merchantable in Winster in the  district call the king field or the king fee within the hundred of high peak  in the county of Derby be and ought to be deem smytham or offal accord to  custom use for time immemorial within the say district d whether by custom use  for time immemorial within the say district call the king field or the king  fee that part of the lead over get dress and make merchantable in Winster  aforesaid which be and ought to be deem smytham or offal have be and of right  ought to be exempt from answer to the king his farmer or lessee the thirteenth  dish thereof for the duty of lot and that the respondent shall be plaintiff in  the say issue and the appellant his majesty attorneygeneral for the king and  the duke of Devonshire be defendant therein and that the say issue shall be  settle by a master of the court of chancery if the party differ about the same  and if upon such trial the jury shall find any right different from what shall  be particular describe in the plead the same shall be endorse on the record  and that all courtrolls courtbook brown survey book of account paper and write  in the custody or power of the appellant or respondent or any of they relate  to the matter in question shall be produce before the say master upon oath or  be ascertain upon the oath of such person and be inspect in such manner and at  such time or time before the say trial as the say court of chancery shall  direct and that any of the party shall be at liberty to take copy thereof or  of such part thereof as they shall think fit at their own expense and that  such of they as either side shall give notice of shall be produce at the say  trial and that the consideration of the cost of this suit and of all further  direction shall be reserve until after the say trial shall be have and it be  further order that the say court of chancery shall give all necessary and  proper direction for carry this judge brown er p mean into execution and that  any of the party shall be at liberty to apply to the say court as there shall  be occasion On search the register book Reg lib a p for the subsequent proceed  in this cause it appear that the issue be try on the that of April when the  jury find a verdict on both of they for the defendant and that on the that of  June follow the cause be hear on the equity reserve when the court order the  verdict to be establish and that the right of his majesty and of the duke of  Devonshire during the continuance of his lease to the thirteenth dish of all  the lead over get out of the say i as the duty of lot shall be also establish  and his grace wave any further account of that duty than such as have be keep  pursuant to the agreement of July under which the sum of pound S d three per  cent bank annuity have be purchase the accomptantgeneral be order to transfer  that sum to the duke and his cost at law be order to be tax and pay to he but  his grace generous remit his cost in equity though the court declare that he  be equal entitle to those cost jour vol p