might be revived; which petition having been referred to the Attorney-General for his opinion, whether it might be proper for Her Majesty to grant the prayer thereof, the Attorney-General, on the 23d of March, 1705-6, reported his opinion, that, by the plaintiff's death, the writ of error was abated, and could not be revived.

Upon Mr. Allen's suing for writs of ejectment in his own name, he was cast with costs, whereupon he appealed to Her Majesty in Council; but died before the appeal was determined, having first, by deed of sale dated the 28th of August, 1706, conveyed one-half of his lands to Sir Charles Hobby, of Boston, in New England.

Upon the death of Mr. Allen, the half of New Hampshire which remained unsold, devolved to two infant sons, but it does not appear that any application was ever made since that time by them, or any one in their behalf, or by any claiming under them, to be put in possession; and in the year 1716, Colonel Shute was appointed Governor of New England, with a power, in his commission, of granting lands in New Hampshire; in consequence whereof, several townships were laid out, nor does it appear that any claim of property was set up until the year 1746, when John Tufton, who had taken upon him the name of John Mason, and who is one of the surviving grand-sons of Robert Mason, pretending that the fine and recovery, sued out in Westminster Hall by John and Robert Mason, in 1691, previous to the conveyance by them to Samuel Allen, was illegal, as it ought to have been done in the Courts there, himself sued out a common recovery in the Courts of New Hampshire, in consequence whereof the sheriff put him

in possession, and he sells his right by deeds to sundry persons in the Province, who have taken upon them to grant lands, and lay out townships.

Question.-Whether the uniform silence and discontinuance of all sort of claim to the waste and unimproved lands, within the Province of New Hampshire, for more than forty years successively, during the greater part of which time the Crown has occasionally made several grants of the unimproved lands of the said Province, without exception or complaint from any person or family, does not prescriptively vest the waste lands of the Province in the Crown? And how far can any private claim to these lands, so long deserted, be now revived against such an exercise of power over them in the Crown? If these waste lands are not in the Crown, to whom do they belong? And what will be the regular and best method of bringing this matter to a final legal determination?

It is impossible to give an answer to this quære without knowing many circmstances not appearing upon the state of this case.

First, It is asked to whom these lands belong? They were originally granted to Mason; they were afterwards conveyed to Allen. Whether that conveyance be good, depends upon the will of John Mason, not particularly stated; upon the fine and recovery said to have been levied and suffered, not particularly stated; upon the usage or laws in New Hampshire, in relation to barring estates tail, not stated at all; upon the infancy or other disability of the issue in tail; his acquiescence; the acts of limitation in New Hampshire, none of which matters are before us.

Second, It is asked, whether they belong to the

Crown?

We suppose, upon this ground, that neither the Masons nor Allens, for forty years past, have done anything till 1746. This depends upon a variety of circumstances the nature and causes of the acquiescence; the acts done by the Crown in the meantime; the kind of possession taken in 1746; and what has been done since. We can only say, that where persons, under grants from the Crown, have quietly possessed and improved, so great regard is always had to persons who have settled lands in America, that it is hardly possible for a stale title to be so circumstanced as to prevail against them; and here, the length of time during which they have been permitted to improve, is extremely material.

Upon the whole, we cannot advise anything so proper, as that the parties, if any suits are commenced in New Hampshire, should take care to have the evidence so laid before the Court, as to be transmitted over to England, in case of an appeal to the King in Council.

August 7, 1752.

D. RYDER.

W. MURRAY.

(10.) Mr. West's opinion, how far the King has a right to grant ceded lands.

Case. By the treaty of Utrecht, the King of France gave up the French part of Newfoundland to Great Britain; but the French inhabitants were allowed to remain there and enjoy their estates and settlements, provided they qualified themselves to be subjects of Great Britain; and those who would not do it, had leave to go elsewhere, and take with them their moveable effects.

But by Her late Majesty's letter, in consideration of the King of France's releasing a number of Protestant slaves out of his gallies, she did permit the French inhabitants at Placentia, in Newfoundland, who were not willing to become her subjects, to sell and dispose of their houses and lands there.

Quare. Whether the Queen, by her said letter, could dispose of lands granted to the Crown by treaty?

I am of opinion that the Queen could not, by her letter, dispose of lands granted to the Crown by treaty; but if she entered into any regular agreement with the Crown of France for that purpose, she was, by the law of nations, engaged to do everything in her power to enable the French to have the benefit of it; which might be done by her confirming the title to such of her subjects as should pay the French a consideration, in money or otherwise, for their lands or houses, &c.

March 10, 1719-20.

RICH. WEST.

(11.) The opinion of the Attorney and Solicitor, Yorke and Talbot, whether the King's right to the lands of Pemaquid remain in the Crown.

To the Right Hon., the Lords Commissioners, for Trade and Plantations.

May it please your Lordships;

In obedience to your Lordships' commands, signified to us by Mr. Popple, referring to us the state of a case hereunto annexed, concerning the right to a tract of land lying between the rivers Kennebeck and St. Croix, and directing us to hear both parties, and report our opinion, in point of law, thereupon, to your Lordships; and also, in obedience to your Lordship's commands, sig

nified to us by Mr. Popple, referring to us the several annexed petitions of Sir Bibye Lake, Baronet, and others, and of Samuel Waldo, merchant, on behalf of Elisha Cook, Esq., and others, and directing us to report our opinion upon the same to your Lordships; we have considered the said state of a case and petitions, and find that the said state of a case sets forth, that, by the Massachusetts Charter, it is ordained, that the territories and colonies commonly called and known by the name of the Colony of Massachusetts Bay, and the Colony of New Plymouth, the Province of Maine, the territory called Acadia or Nova Scotia, and all that tract of land lying between the said territories of Nova Scotia and the said Province of Maine, be erected, united and incorporated into one real Province, by the name of the Province of the Massachusetts Bay, in New England.

And that their Majesties do, thereby, grant unto the inhabitants of the said Province or Territory of the Massachusetts Bay, and their successors, all that part of New England, in America, lying within the boundaries in the said Charter particularly mentioned; and also, the lands and hereditaments lying and being in the country or territory commonly called Acadia or Nova Scotia; and all those lands and hereditaments lying and extending between the said country or territory of Nova Scotia and the river of Sagadahock or Kennebeck, or any part thereof; and all lands, grounds, places, soils, woods and wood grounds, havens, ports, rivers, waters, and other hereditaments and premises whatsoever, lying within the said boundaries and limits aforesaid, and every part and parcel thereof; and also, all islands and islets lying within ten leagues directly opposite the main land, within the said bounds, and all mines and mine