ti A Ath RUAN Ag a i ih , Hf Sr Mi Cornell Law School Library ornell ier Library Cc KD 2339.B16 1867 iin | 3 1924 022 315 182 law A TREATISE ON Che Law OF MINES AND MINERALS. BY WILLIAM BAINBRIDGE, F.G.S., OF THE INNER TEMPLE, ESQUIRE, BARRISTER AT LAW, ‘ Argenti rivus, et auri; Eris item, et plumbi; Tum penetrabat eos, posse hec, liquefacta vapore, Quam lubet in formam et faciem decurrere rerum.” LUCRETIUS, LIB. V. Third Edition. LONDON: BUTTERWORTHS, 7, FLEET STREET, Late Publishers to the Queen’s most excellent Majesty. HODGES, SMITH & CO., GRAFTON STREET, DUBLIN. 1867. CORNBLG Wen oi,F OCT 3 1808 LAW : +o LONDON: PRINTED BY C. ROWORTH AND SONS, BELL YARD, TEMPLE BAR. PREFACE Great Britain has been celebrated for the extent and variety of its mineral productions from remote antiquity. The first events which tradition has told with respect to our country were connected with mining pursuits. Nature has, indeed, given with sparing hand the gifts of the precious metals; but she has afforded with profuse beneficence mineral substances of far greater real value and utility, the enjoyment of which is inseparably associated with the comforts and civilization of mankind, and which have largely contributed to the national pre-eminence. The history of mining in this country would prove an entertaining and instructive study; and it would be found to present a faithful picture of the spirit and acquirements of the passing times. The progress of mining has always kept pace with the improvement of the arts, the accumulation of wealth, and the more adventurous energy of the nation. Money is not more the sinews of war than of a2 Iv PREFACE. mining; and individual wealth not only enables the adventurer to enter upon an enlarged field of costly speculation, but its existence creates the demand for those higher wants of mankind which stimulates his uncertain pursuits. It should excite grateful reflections in the mind of a practical miner, when he contrasts the gigantic efforts and results of modern times with those earlier and puny pursuits still visible in the local codes of Derbyshire and Cornwall. The continued and increasing ardour with which mining operations are carried on in this country, the magnitude of the capital embarked in them, and the general importance of the subject, have not failed to produce an abundant harvest of litiga- tion, the costs of which, indeed, have in some late instances almost rivalled the prolific subjects of dispute. It may justly excite surprise that, before the first publication of this Work, there should have been no attempt to examine and discuss the important and interesting questions which have arisen on the sub- ject of Mines, and to reduce them to the form of a regular treatise. The subject had, indeed, received so little attention, that there hardly existed any epitome of the law respecting it in the general and elaborate books of legal reference ; yet there was no country which more demanded this research. In other countries, the prerogative of the State had PREFACE. v asserted the general right to the Mines, and the ruling power was thus enabled to propound useful and comprehensive codes of law for their develop- ment and pursuit, not only with reference to the lands in which the minerals were found, but also to the rights exacted from neighbouring proprietors. In this country the right of the Crown was limited to mines of gold and silver. Several local customs had indeed established some extensive privileges in favour of miners, and appear to sanction some larger original royal rights. But in modern times the mines of the realm have belonged to private owners, whose powers, however absolute in other respects, have been strictly confined within their own domain. This right of proprietorship, subject to all the ab- struse and complicated laws of devolution and en- joyment incident to real property, and the great division of lands among numerous owners, have produced many corresponding impediments to the prosecution of mining, and have brought the miner into constant collision with the recognized rights of others. It is, therefore, not to be wondered that the searches of the author should have sometimes re- sembled, both in their character and result, the oc- cupations of which he designed to treat, and that, like the miner, he was compelled to traverse the labyrinths of darkness before emerging to the light of day. It might be expected that a subject, which has experienced in actual practice a rapid and com- paratively recent extension, should not stand settled vi PREFACE. by express decision with respect to many important topics. The strict conclusion of law, therefore, must often be arrived at, after a process not only of research but of reflection. The principle of deci- sion must, like the mineral, not only be extracted from obscurity, but it must be carefully separated from all extraneous dross, and be produced in a pure condition, before it can be properly applied to the purposes of its attainment. An author may often still complain, with the adventurer, that the substance does not repay the cost of production, and that he must be guided by the general prin- ciples of law, or the dim light of analogy. In such cases, the author has endeavoured to elicit the true law, as well from the stores of past experience as from a more improved jurisprudence; and he has not hesitated to discuss freely the dicta and decisions of Judges, many of which have been made in times when mining questions, as has been confessed by later Judges, were only imperfectly understood. It might be thought desirable to have presented the reader with a concise account of the laws relat- ing to foreign mines. These laws are so numerous and so various, so replete with minute details, and often so much subject to legislative changes, that any attempt to give definite information concerning them within any reasonable limits would be imper- fect, and would confer little benefit. Great facilities PREFACE, vil exist in almost all foreign states for the promotion of mining enterprise not only by their own citizens but by strangers. When a mining concession or grant is contemplated or has been procured in any particular state, it will not be difficult for the mine owners to acquire a sufficient practical knowledge of their rights and liabilities from the special mining code, or from the official regulations. Some alarm has lately been expressed concerning the probable exhaustion of the British coal fields. In considering the vast importance of these mines to the continuance of the national industry and prosperity, it is certainly surprising that no ade- quate means have been taken for ascertaining with due precision the probable extent of the strata of coal, with their relative merits and capabilities— nor for checking the waste in its consumption. The losses which are yearly suffered by owners of all kinds of mines by premature exhaustion, by fraud and negligence, and by misapplied adventure—aris- ing from the want of regular mining records, which are carefully kept in almost every other country— were described by the author in an article in the Edinburgh Review for 1850. A bill was also pre- pared by him, intituled, “ A Bill for establishing District Registers of all Mines and Mining Opera- tions in England and Wales,” which was read a first time in the House of Commons in August, 1844, and was printed. The indifference of the Vili PREFACE, Government and the mistaken hostility of many of the mine owners prevented any further progress; and the evils have increased by the mere lapse of time. As the public attention has now been awakened, it is hoped that some provision may be made for securing the proper enjoyment of resources which cannot be renewed like the harvests of the surface. NEWCASTLE-UPON-TYNE, July, 1867. CONTENTS. CHAPTER I. PAGE THE DEFINITION OF MINERALS, AND THE MANNER OF ACQUIRING THEM cece rece caer ere ceresrercaece CHAPTER II. THE RIGHT OF PROPERTY IN MINERALS. Sect. I. In Freehold Lands—Sea Shore—Highways.... 4 II. In Copyhold and Customary Lands .......... 14 III. In Common and Inclosed Lands.............. 28 IV. Custom and Prescription 2.2.0.0... 02sec ee eee 38 V. Manors and reputed Manors ,.......+--.005. 51 Aare CHAPTER Iil. ROYAL MINES 65 sic see od anin das ae ke whee ee 59 CHAPTER IV. THE RIGHT TO WORK MINES. Sect. I. When severed from the Inheritance..........-. 64 II. Persons with limited and qualified Iuterests .... 70 III. Ecclesiastical Persons .......c.ceccerveeeees 92 cea CHAPTER V. RIGHTS OF WAY AND WATER, AND OTHER MINING RIGHTS. Sect. I. General inherent Rights ...........eeeeeeee 101 II. Rights of Way 1... .. cece cece eee r eee eee 104 III. Rights of Water ........... sien a eieeeacta sets 119 IV. The Prescription Act .....cecseveeesccreaes 140 x CONTENTS. CHAPTER VI. THE TRANSFER OF MINES, PAGE Sect. I. The Statute of Frauds and the Authority of RANE acc cnn pantera aeeaa reese eee 150 IT. Transfer by Deed ....... ce eee eee eee eens 168 III. Transfer by Will—Duties of Executors ...----- 173 IV, Transfer by Operation of Law ......---++-++-> 186 V. Transfer of Shares in Mines ...---.e-es-ee 000) 195 VI. Mining Implements and Machinery .....-.--- 203 —~-~— CHAPTER VII. THE SALE OF MINES AND SHARES—SPECIFIC PERFORM- ANCE wanign ve weodavewsalerse eres, wenalsne sien ees 214 CHAPTER VIII. LEASES AND LICENCES. Sect. I. Mining Leases—General Description..........- 236 IT. Construction of Leases 2.0.2.6... eee eee eee 251 III. Specific Performance and Equitable Relief .... 287 IV. Licences to work Mines.......... 0. e eee e eee 300 V. Stamps and Registry... 0... ccc ce cece eens 315 CHAPTER IX. THE RIGHT TO GRANT LEASES. Sect. I. The General Right to grant Leases............ 322 II. Leases under Powers........0 . 2 ess eeee ee eee 333 III. By Ecclesiastical Persons and Others...... 356 IV. By Tenants in Tail and by Married Persons with respect to the Lands of the Wife ....... .... 369 V. General Observations CONTENTS. xi CHAPTER X. PARTNERSHIPS IN MINES. PAGE Sect. I. The General Nature of Mining Partnerships.— The Cost-Book System ...........eee eens 378 II. The Contract and Dissolution of Partnership .. 397 III. The Liabilities and Duties of Partners ........ 424 IV. The Partnership Property .........eeeeeees 446 V. The Remedies of Partners with respect to each Othet cede ia ses wea sinwins Maes Meee 462 Practical Remarks .......... 00 .eeeuaeer es 478 —>— CHAPTER XI. THE INJURIES RESULTING FROM MINING OPERATIONS, Sect. I. General Rules ........ ce ccc cee ee ceca enen 483 IT. Injuries to the Surface by undermining ........ 485 ITI. Inundations—Barriers .........0 00sec cence 507 IV. Other Injuries— Private and Public Nuisances .. 517 V. The Statutes of Limitation ............000008 526 VI. Liability of Owners and Agents, Masters and Servants, Contractors and Workmen........ 530 VII. Canal and Railway Companies .............. 534 CHAPTER XII. THE RATING OF MINES AND QUARRIES. Part I.—The Poor Rate. Sect. I. Coal Mines and Rights of Way ...........4.. 548 II. Mines in general .........2...ceeseeeseeeee 565 BLT QB TOS isda vies donc Suen corer a oo wwlear heads 582 TV... The Trish Actes: scscewacde suis os ee ina ease hes 585 Part II.—The County Rate—The Highway Rate—The Church Rates soon ovsnera was hea sg aaa an aes 587 xii CONTENTS. CHAPTER XIII. THE REMEDIES RELATING TO MINES AND MINERALS. PAGE Sect. I. Legal Remedies .............008 Reedati ssalausoseiae 590 II. Equitable Remedies ..........-022.eeeeeeees 598 IIT. Working out of Bounds .......-....5. ..00 610 IV. Criminal Offences ........-20-cecececeeeeees 619 V. Disputes with Workmen and Agents: ]. Contracts of Service ......... ccc eee eee 626 2. Specific Work iv oicacet en eka bag wan oye 631 BS: Truck Act: ssc cdseauie ae sceca oa disewene 635 4, Combinations ......00.-c. 00 esses eeace 637 5. Injuries to Workmen ..........000 0c eee es 639 6. SA GENtS:.cocaoe gue eases eda ew ate ONES 42 --<.— CHAPTER XIV. STATUTORY REGULATION AND INSPECTION OF MINES .. G44 CHAPTER XV. THE. COAL TRADE 3 ou ese nese ees aaikc ew dilvieaerda tees 652 CHAPTER XVI. LOCAL CUSTOMS. Beet. L., In Derbyshire vsviess sscds eceiguacaeseee cer 665 II. In Cornwall and Devonshire Il]. The Forest of Dean ................... sees 699 No. 1. CONTENTS. xiii APPENDIX. -—-— PART I. PRECEDENTS IN CONVEYANCING. PAGE Power in a Settlement to grant Mining Leases .. 705 2. Exception of Mines ina Deed of Conveyance.... 706 3. Short Exception of Mines without Disturbance of the Surface - ses cye ses a bom egieed weeeswere 707 4. Agreement for a Lease of Mines ...........60+ 707 5. Short Agreement by an Agent to authorize a Trial fora Short Period 2.2.0 ..6.. center tenet eee 709 6. Lease of Lead Mines [also for Copper and other Metallic Mines worked in Veins] ............ 710 7. Lease of Coal Mines under a Power [also for 11. 12. 13. 14. . Conveyance of a Share in Mines by a Partner 16. Tron-stone Mines and any Mines for working horizontal Strata]... 0... cee eee cee cee ene 720 . Licence to work a Limestone Quarry .......... 733 . Power in a Settlement to grant Right of Way .. 734 10. Lease of Ground for a Railway, by a Mortgagee and a Mortgagor .... cece cece ete e etree 730 Lease or Grant of a Way-Leave or Right of Way 738 Exception of Ways in a Farming Lease ........ TAL Lease of Works for the Smelting and Manufacture OF EPOM es seadag ta cies sede awd anew ever ewe 741 Deed of Partnership in Mines .............4.. 745 who is also one of the original Lessees and Trus- —~— xiv CONTENTS. APPENDIX — continued. PART II. LOCAL CUSTOMS. PAGE Customs of the High Peak, Derbyshire ........... «. 757 Other: Customs ce:te Kase ucew ela ce cee sews ars ea ae 769 PART III. Glossary of English Mining Terms .................. 2770 = CASES CITED. eS A. PAGE paGe | Att.-Gen. v. Chambers +. 619 Abbot v. Parsons -. 827 | — v. Cross... «» 832 Abraham v. Bubb 72, 79, 83 | -— v. Forbes .. «. 525 Ackroyd v. Smith oe « 116 | +— v. Fullerton... - 613 Acland v. Atwell me oe 94 | — v. Green o. 332 Acton v. Blundell «. 124,512 | —~ v. Griffith .. ~. 332 Adair v. Shaftoe ne «2 455 | — v. Hanmer .. - 12 Adam’s case ee se -. 694 | ———— »v. Hungerford « 832 Adams v. Lloyd «. 507 | — v. Lord Hotham ..44, 332 Adshead v. Needham .. . 618 | ————v. Lambe .. 2+ 695 Alcock v. Sloper . +. 174 | —— —— v. Magwood.. -. 332 Aldeneston case os ea 8F v. Mathias ..48, 693, 701 Alderson v. Clay ia -. 398 _- v. Moses .. 832, 842 Aldred’s case .- a - 120 | —~ v. Owen. «- » 332 Alexander v. Alexander +. 342 | ——-——v. Pargeter .. - 332 Allaway v. Wagstaffe .. 492, 702 v. Proprietors of the Allen v. Bennett +» 161, 162 Bradford Navgn. 522 vo. Hayward - 6383 | -—— v. Rees are «» Il Amiles v. Chambers . 674 v. Selton .. «. 186 Anderson v. Maltby .. ++ 461 | ———--— v. Shore oe +. 282 Andrews v Whittingham - 593 | —— v. Sitwell .. -- 290 Angerstein v. Martin .. «+ 183 v. The United King- Anglesea (Marquis) v. Lord dom Electric Tele- Hatherton .. ee + 41 graph Company.. 522 Aprice’s case .. “ os 72 v. Wall ee -» 671 Archer v. James ie +» 636 | —— v. Warren .. +» 332 Arden v. Sharpe as , 4) | = v. Wilson o« + 832 Arglasse v. Muschamp -. 285 | Atwood v. Ernest ee +» 462 Arkwright v. Cantrell «. 673 | Attwood v, Small «- 404, 477 —- vr. Gell .. 116, 131, 506 Arlett v. Ellis .. 103, 104, 219 Armitage v. Insole .. -- 648 B. Arnold v. Bidgood ss +. 870 v. Revoult .. .. 870 | Backhouse v. Crosby .. +. 161 Arnsby v. Woodward .. 255, 258 | Badger v. Ford Ae -- 104 Ashby v. White -- 128,528 | Bagnall v. London and N, West. Ashfield v. Ashfield .. +. 827 Rail.Co. o. «. 545 Ashmead v. Ranger .. -» 20 | Bagot v. Bagot .. ee 76, 78 Ashpitel v. Sercombe .. oe 445 v. Oughton +. 838 Ashworth v. Stanwix .- -» 640 | Bailey, Ex parte : - 630 Aston v. Aston.. ofa -» 80 v. Appleyard .. oe 145 Astry v. Ballard 38, 70, 83 v. Macaulay .. «+ 404 Atkins v. Davis eo 567; 575 v. Stevens 3 «+ 147 Atkinson, Ex parte .. +. 880 v. Watkins. « 219 Attersoll v. Stevens .. . 285 | Baird v. Williams oa «. 514 Att.-Gen. v. Backhouse -- 832 | Baker ». Charlton a . 440 ———v. Brooke .. ». 3832 | Ballard v, Dyson oe +. 118 XV1 PAGE Ballard v. Harrison .. «- 189 Balmain v. Shore ie .. 447 Bamford v. Turnley .. -- 622 Banister’s case. < -- 357 Bankhurst ». Houghton oe 621 Bannister v. Bannister +. 6384 Barber v. The Nottingham and Grantham Rail. Co. oe 542 Baring v. Dix .. a +. 420 Barker v. Barker és o» 175 Barnes v. Mawson .. 5, 41, 52, 168 v. Ward ee 624, 525 Barnett v. Lambert .. «. 404 Barnsley Canal Co. v. Twibell.. 543 Barraclough v. Johnson «. 116 Barrsv. Lea .. ae ve 286 Barry v. Nugent es »- 167 Bartlett v. Phillips .. «- 99 Barton v. Green ae «. 478 Bartonshill Coal Co. v. Reid 629, 640, 641 —————— v. Macguire 641 Barwell v. Winterstoke «+ 628 Basire v. Wharton oo +» 675 Basset v. Basset a « 81 Basset’s Case .. sc o» 847 Bastard v. Smith a 39, 687 Basten v. Butter er + 633 Bateson v. Green oe -. 29 Baugh v. Haynes 3, 38 Baxendale v. The Great West- ern Rail. Co. on ». 662 Bealey v. Shaw se 120, 121 Beardmore v. Treadwell «. 522 Beaufort (Duke) v. Bates .. 210 —v. Morris 516, 600 ———_. v Smith .. 45 Beaumont v. Boultbee.. o- 643 — v. Field er +» 601 Beck v. Kantorowiez .. eo. 222 Bedford’s (Earl) case .. .. 3870 Beed v. Blandford oe «+ 632 Beesley v. Clark oe o- 144 Beeston v. Weate o ++ 186 Bell v. Phyn .. ae 2+ 447 v. Wilson .. 1, 68, 72, 194 Bennett v. Jeffreys .. +. 46 v. Griffiths .. -- 618 Bennitt v. Whitehouse «+ 618 Bentley v. Bates .. 470, 473, 474 Beresford v. Bacon -» 668 Berkhampstead Free School, Ex parte... a +» 832 Berkley v. Shafto o. «. 497 Berney v. Sewell e- 465 Berry v. White.. a -. 343 Beswick v.Cunden .. +. 519 Bethune v. Kennedy .. «. 174 CASES CITED. PAGE Bevan v. Lewis isis e- 471 Beville’s case .. ee sa 53 Bewick v. Whitfield .. 72 Bibby v. Carter ae -. 503 Biddulph » Ather .. oe 39 Binney v. Ince Hall Coal Co. au Bird v. Aston .. os v. Boulter ei »- 163 —v.Crabb .. - «- 210 v. Higginson — «+ -. 805 Birmingham Canal Co. vw. Hawksford 28 o» 537 Lloyd 3 516, 00h, i Bishop v. Chureh ais v.Goodwin .. oe oe v. North sis «. 107 Blackett v. Bates as -- 299 —— v. Bradley .. 41, 495 Blagden v. Bradbear .. «- 161 Blain v. Agar.. w oe 445 Blair v. Bromley » 611, 616 Blake v. Midland Rail. Co. .. 642 Blakesly v. Wielden.. 228, 243, 617 Blandford ». Morrison. . .- 3858 Blewitt v. Tregonning .. 48, 693 Bligh v. Brent .. oe «» 197 Bliss v. Hall .. o° -. 520 Blore v. Sutton .. 7 163, 352 Blount v. Pearman... -. 319 Blythe v. Topham = «. = 528, 524 Boase v. Jackson ne -. 319 Bochin v. Wood -- 466 Bodmin United Mines, In re.. 202 Bolch v. Smith.. es «- 542 Bolland v. Ex parte .. ve 441 Bolton v. Lowther oe a. 28 Bonbonus, Ex parte .. os 426 Bond ». Gibson ae ee 441 —— v. Hopkins a ++ 612 Bonomi v. Backhouse 498, 499, 530 Booth v. Lord Warrington .. 612 v. Pollard. . ae e+ 294 Botting v. Martin ais e. 153 Boucher v. Lawson -- 165 Boulcott ». Winmill .. o- 28 Bourne v. Freeth ae «- 407 v. Taylor .. 15,18, 20, 591 Bowers v. Cator a ee 155 v. Lovekin Prt +» 636 Bowes v. E. L. Water Works .. 344 v. Lord Ravensworth .. 113 Bowler v. Wolley oe +. 281 Bowles’ case .. aie we AZ Bowness, Ex parte .. +. 426 Bowser v. Colby 254, 259 v. Maclean .. 23,114 Boyce v. Green.. +» 159, 197 CASES CITED. PAGE Boyfield v. Porter oe -- 90 Boyle v. Tamlyn .. +» 528 Bracebridge v. Buckley oe 254 — v. Heal o. 154 Brack v. Johnson as ee 2385 Bradburne v. Botfield .. «. 276 Bradley v. Stratchy .. «» 951 Bragg v. Cole .. ‘i «+ 633 Brain v. Harris 3 283 Braithwaite v. Schofield .. 399, 408 Branwell v. Denneck . -- 631 Bray v. Tracy .. oe «» 80 Brealey v. Collins .. oe 215 Brend v. Brend ee o. 44 Bridges v. Blanchard .. «+ 148 v. Potts se 247, 274 Bright v. Walker 141, 143 Bristow v. Secqueville.. o» 410 Broadbent, Ex parte .. 477 v. Imperial Gaslight Co. as «- 522 v.Ramsbotham~ .. 125 v. Wilkes .. 19, 26, 489 Brodie v. St. Paul we «+ 161 Brook v. Enderby oe 442 Brooksbank v. Smith .. +. 612 Broom v. Broom asa o 442 Brown’s Trust Act, Inre .. 356 v. Best .. e+ 120, 188 —— v. Byers .. es o. 429 —— v.Capel .. a +. 658 -—— v, Chadwick ay ao gl ——- v. Copley .. oe +. 5382 — vo. Duncan +» 655 —— v. Kidger . ». 430 -— v. Rawlins as 39, 43 v. Thorpe oe ee 227 —v.Vermuden .. e+ 675 v. Whiteaway -. -- 185 v. Windsor aa «. 499 Browne v. Moore oe -» 617 Browning v. Beston .. «. 254 Brunton v. Hall a -» 110 Bryan v. Whistler a ~- 3805 Brydon ». Stuart a «. 640 Buck v. Lodge .. ee wie 227 Buckley v. Barber... .. 447 v. Coles +» 104, 147 v. Howell oe o. 225 v. Kenyon ee o. 284 Budd, Ex parte oe oe 443 Bullv. Price .. me ee 631 Bunbury v. Hewson .. «. 89 Burdon v. Barkas ee e. 419 Buren v. Howard es «- 627 Burgess and Foster’s case .. 44 Burgess, Ex parte .. -. 384 v. Gray. ae «+ 582 BL. Burmester v. Norris .. Burrow, Ex parte es Bush v. Coles .» : —— v. Steinmen oe Burton v. Kirkby . v. Wookey . Butcher v. Butcher .. v. Stapeley .. Bute ( Lord) v. Grindall —— v. Stuart .. —— (Marquis) v. Thompson.. Butterfield v. Windle .. Buxton v. Hutchinson Cc. Caddick v. Skidmore .- Caldecott v. Caldecott .. Caledonian Rail. Co, ». Sport Campbell v. Fleming .. Xvil PAGE 433, 636 oe 474 oe 248 «- 5382 o>» 318 oe 445 ~- 155 »» 155 «+ Of9 «. 462 270 «. 655 «. 675 o. 412 +» 179 488, 503 v. Belhaven 503 ++ 218 v. Leach .. 334, 338, 342, 347, 351, 252 ——— 2. Wilson «- 141 Cardigan (Earl) v. Armitage .. 66, 171, 484 v.» Montague 341 348, 350 Carew v. Carew ee « 81 Carey v. Leadbitter .. «- 522 Carlyon v. Lovering 48, 124, 519 Carne v. Mitchell «. 289, 295 Carr v. Foster .. oe o. 144 Carrington v. Roots .. «- 158 Carter v. Claycole a «. 342 v. Whalley oe oe 442 Case v. Midland Rail.Co. .. 102 Catt v. Howard aie o- 441 Catts v. Ward «. ois - 636 Champian v. Atkinson +» 40 Chance v. Dod.. . oe 44 Chaplin v. Clarke oe oe 445 Chapman v. Beach 5 ee 421 Charlton v. Poulter .. «+ 471 Chasmore v. Richards... 125, 126 Cheap v.Cramond.. o. 441 Chervet v. Jones oe - 318 Chetham v. Williamson .. 169, 171, 801, 308 Chichester v. Lethbridge «» 520 Church v. The Inclosure Com- missioners .. .- -- 38 Churchman ». Harvey .« oe 841 Clarke v. Cogge oe -- 105 v. Dickson .. 244, 444 Inre .. oe - 328 v. Hart 460, 466 XVili PAGE Clarkson v. Woodhouse «2 29 Clavering v. Clavering -+ 603 ———— v. Reed ie +. 605 ————- v. Westley .. 296, 604 Clayton v. Burtenshaw -» 816 v. Corby 47, 143 v. Gregson - 282 Clegg v. Clegg .. sie «. 84 — »v. Dearden oa »» 509 —— v. Edmondson . 453 -— v. Fishwick aie a. 449 v. Rowlands oe .. 838 Clements v. Hall «» 454, 455 Clifton v. Walmesley .. +. 283 Clinan v. Cooke ae «» 155 Closmadene v. Carrel .. -. 818 Clowes v. Beck 91, 598 Cocker v. Cowper 158, 305 Codling v. Johnson .. -» 141 Coffey v. Bryan . ++ 462 Coker v. Guy .. . «+ 285 Coleman v. Upcot an »» 161 Coles v. Trecothic - 161,163 Collins v. Collins ee .. 174 v. Hopwood .. -- 658 Collis v. Emmett ae -- 165 Comberford’s case ve 808 Comyn v. Kyneto «+ 168, 593 Congleton (Mayor) v. Pattinson 139 Constable v. Nichclson 48, 91, 92 Cook v. Winford a o. 72 Cookson v. Cookson ae 447 Cooper v. Smith o. e+ 162 v. Marshall .. o. 28 Copeland v. Webb... «. 517 Copper Mining Co, The v. Beach a0 ° oe = 295 Corkman v. Mather oe 43 Cort v. Birkbeck oe «- 389 Costard’s case .. . +. 94 Cother v. Merrick . .. 371 Cotter v. Layer.. . +» 852 Cotton v. Lee .. ee +. 161 Coventry v. Coventry .. 344, 352 Cowling v. Higginson .. ++ 117 Cowper (Earl) v. Baker +» 598 Cox v. Bishop .. o «+ 297 Coxe v. Day .. es «. 348 Cranch v, Cranch a +» 181 Crawshay v. Collins ++ 422 v. Maule 386, 388, 422, 446, 464 Crease v. Barrett oe «- 694 v. Penprase .. -- 608 v. Sawle aa -. 573 Crocker v. Fothergill .. 591, 594 Croft v. The London and North- Western Rail. Co. .. ee B42 CASES CITED. PAGE Crosby v. Wadsworth . 152, 158 Crosstield v. Morrison .- ~. 285 Crowder v. Tinkler .. Cuddon »v. Morley sa ~- 83 Cullen v. Rich .. 4, 6, 593, oe —— v. Tuffnal.. ae #e Cundell » Dawson .. ee Curling v. Flight ‘ -. 186 Curtis v. Daniel .. 39, 46, 47, 49 Cutler v. Simons ai ve 227 Cutts ». Ward .. ue ». 636 D. Dakin v. Cope .. oe ++ 256 Dale v. Hamilton . 448 Daley v. Beckett o «. 76 Dalston v. Reeve oe «. 812 Dancroft v. Albrecht .. -. 197 Dand v. Kingscote .. 102, 106, 109 Daniel v. Gracie ite wy 252 Dann ». Spurrier oe oe 244 Darby v. Darby - +» 446 Darcy (Lord) v. Askwith .. 73, 103 Davies v. Hawkins o. 463 v. Baron Berwick - 627 Davis v. Jones.. -. 209 v. Shepherd 240, 292, 603 Davison v. Gill ie -- 14 Davvell v. Roper wis 1, 194 Dawson v. Rishworth .. «. 595 v. Hay. oe -- 404 Dean v. Thwaite .. «. 612, 614 Deane v. Rastron ax se 21S Dearden »v. Evans ete cae 25 De Berenger v. rae ++ 421 Deeks v. Stanhope .. 422, 473, 477 De la Rue »w. Fortescue «. 523 Deloraine v. Browne .. aa OIG Denison v. Holiday .. -- 173 Denn v. Johnson ea ve Se Dent v. Dent .. 717 Denys v. Shuckburgh . 184, 474, 612 De Pass, Ex parte .. oe 433 De Tastet ». Carroll .. - 441 Dicken v. Hamer oe an 82 Dickinson v. Grand Junction Canal Company 123 ———_ v. Valpy .. 399, 407, 428 Dimes v. Scott . 179, 183 Dixon v. Harrison ee aw SIG Dobeler v. Hutchinson «+ 161 Dodd v. Holme Pe «- 499 —— v. Acklom * «- 154 Doe v. Alderson i -- 691 aoe gy, Allen 2x oe » 258 -——- v. Archer .. é - 167 —— v. Ashburner a ++ 107 -. 620. CASES CITED. PAGE Doe v. Baker .. » 255 v. Bancks.. 256, 258, 359 —— ». Bettison 346, 350 —-v. Bliss .. oe 2. 256 ——-~ v. Brindley «. 258 —. v. Browne +. 167 —— v. Burlington (Earl) + 71 —— »v. Calloway oe «+ 44 —— »v. Calvert ea o. 844 —v. Clare .. ore ae G7 — v.Collinge .. 357, 359, 362 —— v.Creed .. a -. 846 —— v. Davidson oe -. 84 —-vw Day .. os «» 845 —— »v. Dixon .. es oe 244 — v.Elsam .. ae -. 255 — v. Ferrand ee oie ——v.Giles .. =i » 330 — v. Harrison we. 258 —~—- v. Harvey -- 844, 360 —— v. Hellard i -. 85 —~— v. Hellier oe ne 262 —- v. Hilder .. ats o«. 148 —-— v. Hobson ye xa BED —— v. Jenkins es +. 870 —— v. Jepson +. 249 —— »v. Lewis .. 348, 319 —— v. Lloyd .. es +. 346 ~-—— v. Lock 111, 335, 348 — v. Maisey.. a «» 3830 —— v. Martin -. 183 v. Davis aie o» 473 v. Field os eo. 471 v. Rundell F «+ 462 v. Salmon we -- 163 v. Shum ae oe 443 v. Stendall .. -- 509 v. Waters - 158, 3805 v. Whitehead .. -- 139 Teague v. Hubbard .. «- 463 Teall v. Anty .. oe «. 158 Tebbs v. Carpenter .. +. 174 Tempest v. Rawling .. -» 167 Tenant v.Goldwin .. as B12 Thicknesse v. Bromilow «» 429 Thomas v. Clark ve +» 201 —— v.Cook «+ 195,158 v. Jones +» 598, 600 v. Oakley oe -» 598 v. Perry e +» 675 v. Sorrell “se o. 805 Thompson ». Guyon .. 254 v. Universal Salvage Company .. oe 428 XXX PAGE Thompson v. Wesleyan News- paper Association . 425 v. Wilson .. +» 153 Thorncroft v. Crockett -. 88 Thornton v. Dixon .. o» 447 ——— v. Kimpster.. -» 161 Thorogood v. Robinson +» 595 Threadneedle v. Lynham —.. 360 Thriscutt v. Martin .. «. 592 Thrustout v. Coppin .. +. 870 Thyme v. Lord Glengall -» 156 Tickle v. Brown oe +. 144 Toll v. Lee o os +» 263 Toole v. Medlicott .. -» 155 Tottenham v. Byrne .. ea 39 Townley v. Gibson 17, 26, 34, 69 Townshend v. Devaynes oe 446 (Marquis) v. Stan- groom .. +» 290 Tracy v. Tracy .. se +. 80 Tredwen v. Bourne .. 378, 433 Trewynnard’s case. oe 694 Tristram v. Lady Baltinglass .. 337 Trower v. Chadwick .. 507,514 Trustees of Duke of Bridg- water v. Township of Bootle Cum Linaire.. ba «» 562 Tully v. Halsall a9 «+ 675 Turner v. Hardcastle .. «» 885 v, Harvey ee +. 215 Turner’s case .. aa «« B70 Tustian v. Roper xe ++ 360 Twigg v. Fifield os «. 233 Tylor v. Wilkinson .. +. 122 Tyrone (Earl) »v. Waterford (Marquis) .. a «+ 185 Tyrringham’s case... -- 84 Tyrwhitt ». Wynne .. o =68 Ves Vale of Neath and South Wales Brewery Joint Stock Co., Ex parte Lawes... . ++ 433 Van Sandau v. Moore.. ++ 477 Vane v. Lord Barnard.. 79, 80 Veal v. Nicholl oe oc OLY. Venning v. Leckie .. ++ 462 Vernon v. Vernon a ve B52 Vice v. Fleming . oe 441 v. Lady Anson .. 399, 401 — v. Thomas ». 690, 696 Vigers v. Pike .. oe +. 217 Vincent v. Newcombe .. «. 174 Viner v. Vaughan a +» 76 Vulliamy v. Noble .. +. 413 CASES CITED. Ww. PAGE Waddington v. Bristow «. 159 Wadman ». Caleraft w. 254 Wain v. Warlters ee .. 161 Wakefield v. Duke of Buc- cleugh ee 37, 494 Wakeman v. Walker wn +. 338 Waldo v. Waldo a nee ihe Walker v. Bartlett «. 201 v. Fletcher «. 617 v. Jefferys ++ ++ 295 Wallis v. Harrison 110, 305 Walsby v. Autrey ++ 688 Walter v. Selfe.. wea ga 521 v. South Eastern Rail. Co. as a oe -. 641 Walters v. The Northern Coal Mining Co. .. 289, 296, 605 Walworth v. Holt a oe 473 Wanstead Local Board of Health v. Hill . 522 Warburton ». The Great West- ern Rail. Co... ne -» 641 Ward v. Day .. oe o. 285 v. Duke of Buckingham 609 Warriner v. Giles we wo. 44 Warwick v. Bruce... .- 159 Watkins v. Caddel ». 385 — Ex parte os +» 203 Waters v. Taylor 412, 421 Watson v. Birch ae .. 220 —— v. Eales ee ve 437 v. Himsworth .. -. 832 v. Spratley +. 198 Waugh v. Carver e +. 898 Weaver v. Floyd o- -- 636 Webb v. Paternoster .. -. 157 Webber v. Smith oe +. 254 Weeks v. Sparke ats 39, 43 Weeton v. Woodcock .. -. 209 Weir v. Laing .. i +. 285 Welford v. Beazeley +» 162 Wells v, Parker oe «+ 384 Wells v. Stradling .. -- 155 v. Wells .. er «- 462 Wentworth v. Clay... aa 28 — v. Turner.. os 374 West v. Skip 446, 474 v. Trende.. a aa 591 Whale v. Booth ee ++ 174 Whalley v. Laing es «+ 136 ——-—v. Whalley .. +» 612 Wheal Emily Mining Co., Cox’s case .. - «+ 444 Whetstone v. Wentworth +. 870 White » Foljambe .. os 222 v. Lisle oe o- 47 —— v. Proctor nie +» 163 CASES CITED. PAGE White v. Warner : aw 204 Whitechurch ». Holworthy o 17 Whitehead », Parks .. oe 128 Whitehouse v: Fellowes +. 515 Whitfield v. Bewit 74, 598, 604 Whitlock’s case 841, 343, 371 Whitmore v, Empson .. «- 211 -——_—v. Mason .. -. 461 Whittle ». Frankland .. +» 630 Wightwick v. Lord .. -- 18l Wickham v. Hawker .. we All Wigglesworth v. Dallison .. 283 Wightman v. Townroe «- 175 Wild». Holt .. ee -- 610 —v. Milne .. ee «- 423 Wilde v. Minsterley .. e+ 499 Wilbeam ». Ashton .. -- 633 Wilkes v Broadbent .. sa 489 v. Hopkins... e+ 431 Wilkinson v. Proud .. 169, 593 Willet v. Boole.. ie -» 681 Williams v. Attenborough .. 233 ———— v. Bagnall .. ve 486 ——— v. Bingley .. «+ 471 —— —— v. Jones oe -. 562 v. Medlicott.. -. 86 v. Morland .. e+ 122 ——-——v. Mostyn .. -- 123 v. Rowlands.. +. 421 || -_~—— »v. Williams .. «+ 72 Williamson v. Taylor .. +. 650 Willis v. Dyson on -. 441 Willway’s Trusts, Re .. +. 356 Wilson v. Greenwood -- 416, 464 v. Grey.. se «- 178 v. Hart.. ey e+ 185 v. Holden ais -» 404 v v. . Hunt . + 163 . Macreth 494 v. Sewell o- 345 v. Willes oe 34, 76 Winchester (Bishop) v. Knight 20, 45, 92, 592, 604 v. Wolgar 592 Winne v. Bampton «+ 827 Winnington’s case... +. 262 Winter v. Brockwell 158, 306 v. Loveday .. 338, 3840, 344 v. Loveden .. -.» 66 . . * XXX PAGE Winter v. White ar +» 462 Wither v. Dean and Chapter of Winchester .. - ae Witherington v. Bankes +. 88 Witherley v. The Regent Canal Co. .. a +. 641 Wood v. Braddick ate «. 441 v. Copper Miners’ Com- pany es» 249, 277, 597 —— v. Fenwick a -- 630 —— v. Gaynon * -- 206 —v.Lake .. a% «+» 157 —— v. Leadbitter ie «» 805 —»v. Pee tookeree esi) 299 —— v. Manley 806 —— v. Morewood «. 610 — v. Sutcliffe ‘ -. 120 — v. Waud 2 ‘TI, 1238, 131 Woodcock v. Gibson .. «» 333 Woodhouse v. Meredith ». 220 Woolan v. Hearne... -» 290 Worcester’s (Dean and Chapter of) case oe 94, 838, 362 Wren v, Kirton .. - 220, 233 Wright v. Howard. -» 120 v. Smith : oe 845 v. Williams .. 124, 145, 519 Wyatt v. Harrison 496, 499 Wyld’s case .. a +» 593 v. Hopkins .. «. 407 v. Wheal Lovell Co. .. 423 Wynget v. Heathcote .. +. 474 Wynne v, Tyrwhitt .. «» 44 Wyrley and Essington Canal Co. v. Bradley oe eo. 535 Y. Yates v. Hambley... «+ 604 York Buildings Co. v. Macken- zie. es as 220 Young v. Astell oe os 898 Z. Zouch v, Parsons a «+ 327 THE LAW OF MINES AND MINERALS. CHAPTER LI. THE DEFINITION OF MINERALS, AND THE MANNER OF ACQUIRING THEM. —~— THE subject matters of the following pages are the mineral productions of the earth. A mineral has been defined to be a fossil, or what is dug out of the earth. The term may, however, in the most enlarged sense, be described as comprising all the sub- stances which now form, or which once formed, part of the solid body of the earth, both external and internal, and which are now destitute of, and incapable of, supporting animal or vegetable life. In this view, it will embrace as well the bare granite of the high mountain as the deepest hidden diamonds and metallic ores(a). In deeds and other documents the term may be explained in its larger or restricted sense, according to the intention, express or implied (8). (a) Earl of Rosse v. Wainman, 294; 24L. J., Chanc. 779; Bell v. 14 M. & W. 859; 2 Exch. 800; 15 Wilson, 2 Dr. & Sm. 395; 34 L. J., L- J., Exch. 67; Micklethwait v, Chanc. 572; 35 Ibid. 337. See also Winter, 6 Exch. Rep. 644; 20 L.J., | Brown v. Chadwick, 7 Ir. C. L. 101 ; Exch. 313. Listowel v. Gibbons, 9 Ibid. 228. () Davvell v, Roper, 3 Drew. ¥o B. B 2 THE DEFINITION OF MINERALS, AND [CHAP. I. These various productions are differently found: in small nests, bunches, or isolated deposits; in large irre- gular masses; in detached fragments; in alluvial and fluvial streams; in lodes or veins; and in a regular course of stratification. A mineral lode or vein is a flattened mass of metallic or earthy matter differing materially in its nature from the rocks or strata in which it occurs. Its breadth varies from a few inches to several feet, and it extends in length to a considerable distance, but often with great irregularity of course. It is usually perpendicular, or nearly so, in its position, and descends, in most cases, to an unknown depth.—Sometimes the sides are parallel, and sometimes they recede from each other, so as to form large accumu- lations, or, as they are called, bellies of mineral matter, and occasionally they approach each other so as almost, if not wholly, to cause the vein to disappear. Veins also traverse each other, and smaller ones ramify or spring out from the larger. Ore is a term applied to certain minerals in their natural condition. There are two common modes of working for minerals— quarrying and mining ; and this distinction will be after- wards shown to be of some importance. A quarry is an open excavation where the works are visible at the surface. The word is supposed to be de- rived from quadratarius, a stone-cutter or squarer(c). A mine is formed by the penetration of the surface, without exposure of the works to the light of day, by means of pits, shafts, levels or tunnels. This word is said to be de- rived from minare, signifying ducere to lead or draw, with reference to subterranean passages(d). This distinction does not, of course, depend upon the nature of the material, but simply upon the mode of working (e). Regard must (c) Encyclop. Metrop. Ad. 65; Rex v. Dunsford, 4N.& M. (d ) Ibid. 849; 1 Har. & Woll. 938. (e) Rex v. Sedgeley, 2 Barn. & CHAP. I. THE MANNER OF ACQUIRING THEM. 3 be had entirely to the mode in which the article is obtained, and not to chemical or geological character (f). It is inaccurate to say that a mine is unopened. The mine is not the substance, it is only the mode of getting the substance. A vein or a stratum may be unopened, but there can be no mine if there is no opening (9). This expression will, however, be used in its familiar sig- nification, and the word mine will often be taken as synony- mous with the mineral substances. Definite meanings have been given to certain mining terms by statutes re- lating to the Duchy of Cornwall, and to the mining customs of Derbyshire (A). All minerals which are unworked and unsevered are parts of the freehold, and, as such, constitute landed pro- perty or real estate. In this condition, they will be sub- ject to the general rules which govern the enjoyment of real property. When severed from the freehold, they become mere personal chattels. (f) Rex v. Brettell, 3 Barn. & Ad. Co. Litt. 54b. 424, See Chap. XI. (k) See Chap. XVI. (g) Astry v. Ballard, 2 Mod. 193; B2 CHAPTER II. THE RIGHT OF PROPERTY IN MINERALS. I. In Freehold Lands. Sea-shore. Highways. Il. In Copyhold and Customary Lands. III. In Common and Inclosed Lands. IV. Custom and Prescription. V. Manors and reputed Manors. —~— Section I. IN FREEHOLDS. Prima facie, the owner of freehold lands is entitled to all the minerals on and underneath the surface (a), with the exception of royal mines. Whatever is in a direct line between the surface of any land and the centre of the earth belongs to the owner of the surface (0). This is, however, only a presumption of law, and capable of being rebutted by the production of a title distinct from that to the surface; for the mines may form a distinct pos- session and different inheritances(c). It is a common occurrence, in mining districts, for the ownership of the soil to be vested in one person and that of the mines in another. There are frequently even distinct ownerships, though generally for limited periods only, in different de- scriptions of mineral, and in different deposits or strata of the same kind of mineral. Thus, one person may be entitled to the iron, and another to the limestone; one seam or stratum of coal, in the same lands, may belong to (a) Co. Litt. 4b; Curtis v. Daniel, (c) Cullen » Rich, Bull. N. P 10 East, 273; Barnes v. Mawson, 102; 2 Str. 1142; nom. Rich 2. 1 Maul. & Sel. 84. Johnson. (b) 2 Bl. Com. 18, SECT. 1. ] IN FREEHOLDS. 5 a third person, and another distinct seam to a fourth owner. In all freehold lands an adverse claim to the mineral must be distinctly established against the owner of the surface. This may be effected by the production of documents showing that the minerals have been con- veyed, excepted or reserved, so as to have become vested in the claimant. In the absence of documentary evidence, or in opposition to such evidence, a title to them may be made out by proof of acts of ownership and length of pos- session (d). Thus, in an action of trover for copper ore raised under the land of the plaintiff, it was held that his apparent right to the minerals might be defeated by proof of his non-enjoyment of them, and of their being worked and used by other persons (e). On the other hand, the owner of the surface may in like manner acquire an inde- feasible interest in the minerals under his property against those entitled to them. Such a possession must, under the recent Statute of Limitations, have endured for the space of twenty years, and in case of successive disabilities for forty years, from the time when a right of action accrued (f). But such a right, being a claim to land itself, and there- fore an incorporeal hereditament, cannot be acquired by prescription, which, contrary to the Roman law from which it is derived, can only confer an incorporeal privilege over the lands of others(g). Prescription, like custom, can only give the right to work mines. : In the absence of documentary evidence, reputation of ownership is not alone sufficient to repel the presumption of law, which favours the owner of the surface. It must, in that case, be accompanied with a uniform usage and (d) Barnes v. Mawson, supra, (g) Wilkinson v. Proud, 11M & (e) Rowe v. Grenfell, Ryan& M. W. 33; 12 L. J., N. S., Exch. 396, per Lord Tenterden; Hal- 227; Bract. lib. 2, c. 22. See infra, comb’s Rep. 1. Sect. 4, (f) See 3 & 4 Will. 4, c. 27. 6 RIGHT OF PROPERTY. [CHAP. II. exercise of the right, which must not rest on loose and vague evidence, but on clear and indisputable facts (A). These acts of ownership must be distinct from those over the surface, in order to give the freehold. In one case, the defendant claimed the soil and freehold of the land as lord of the manor, and proved different acts of enjoyment by sporting without interruption on the lands in question, and also by taking estrays, and forbidding the burning of gorse. It was held that these acts were not properly referable to a right of soil (2). It does not, however, follow that acts of ownership must be exercised in the identical lands, if these lands can be brought within the operation of a custom which prevails over an ascertained district. In a case just cited (2) the owner of the surface brought an action for coals which had been raised under his freehold estate, the title to which estate was deduced by a series of conveyances from the year 1655. The first of those deeds excepted a quit-rent, a nominal sum for tithes, and the services to the lord. The defendant claimed under the lords of the manor, who, as he contended, were entitled to all the coals within a certain district of the manor called the new land, which was described as land formerly taken in and inclosed from the commons of the manor, and was distinguished from another district in the manor called the old land, within which latter the defendant admitted that the freeholders, and not the lord, were entitled to the coals. It was proved that the land in question was within the district of the new land, being situate within an ascertained boundary, surrounded by other farms of the same description, and always so called by persons acquainted with the boun- daries; and that acts of ownership had been exercised by the lords of the manor and their lessees over the coals (h) Barnes v. Mawson, 1 Maul.& & Ald. 554. See Cullen ». Rich, Sel. 77. and Curtis v. Daniel, supra. (4) Tyrwhitt » Wynne, 2 Barn. (&) Barnes v. Mawson, supra. SECT. I.] IN FREEHOLDS, 7 lying within the new land ; and evidence was also received as to the reputation within the manor, that the right to the coals within all the new land belonged to the lord, but not to the coals under the old land. It was also proved that the lessees of the lord were in the habit of driving indiscriminately for coals in the new land, but that no coal had been got from the identical land in question be- fore the time when the present action arose. Lord Ellen- borough, after stating that the only evidence on the part of the plaintiff was the presumption of law arising from his being the freehold tenant of the land, observed, that the only material observation in the defendant’s case was, that there did not appear to be any documents to show how or when the right or reservation claimed by the lord commenced; but that such right as to the new land did exist, stood not only on evidence of one or two instances of its exercise, but that all the evidence proved that there had been a uniform exercise and enjoyment of it as far back as living memory would reach. There was not a scintilla of proof on the other side that it was ever inter- rupted. The evidence of reputation had been applied, as it always was applied in such cases, namely, as to the limits of the new land, and the general right of the lord over it. Indeed the general right of the lord over the new land had not been questioned ; it had only been con- tended that there was no proof of any exercise of it within the particular land in question; but it might be observed, that this was not a right, like some others, of a nature which made it likely to be exercised on the same spot at repeated intervals of time, but when once acted upon was more likely to be confined to the same spot until the subject matter was exhausted. If it had been before exer- cised on the lands in dispute, there could have been no question; but the evidence of the general indiscriminate exercise of it over the new land applied by showing that every part of the xew land laid within the general ambit of the lord’s right. The presumption in favour of the 8 RIGHT OF PROPERTY. [cHAP. II. plaintiff’s title was strong until encountered by evidence, but it had been encountered in the strongest manner. The lord’s right was evidenced by showing that the same right was exercised by him over lands similarly circumstanced. But the lands must be clearly comprised within the boundaries of the district. In the case. of Tyrwhitt v. Wynne (J), several leases of minerals in other parts of the manor had been proposed to be read in evidence. The evidence was rejected at the trial, and, on a motion for a new trial, Bayley, J., observed, that when once it has been established that the locus in quo is part of one entire district, honour or manor, it is competent to give in evidence acts done on other parts of that district, honour or manor, in order to show a right to the locus in quo. But that preliminary proof had not been given. By stat. 39 Geo. 3, c. 21, s. 12, no mines in lands of the church sold for redemption of the land tax can be alienated, and any exception of mines in the conveyance will be void. When the right to the minerals is vested, as a distinct possession, In a person not entitled to the surface, and there has been no ostensible possession or establishment of title to them by acts of ownership on the part of any other persons, the right of possession will still be held to continue in the original owner, and there will arise no pre- sumption of waiver or grant in favour of the owner of the surface. An objection was taken to a title upon the ground that, by a conveyance dated in 1704, the mines and veins of salt in the lands had been reserved to a former owner. No notice was taken of this reservation in a deed of 1761. Compensation was claimed; but it was insisted that the salt works having been levelled and discontinued, a strong presumption arose that the right had been released or abandoned. Sir William Grant, M. R., denied the exist- . (1) 2 Barn. & Ald. 554, SECT. I.] IN FREEHOLDS. 9 ence of any such presumption, and observed that no ad- verse possession was alleged, the owner of the soil had had the enjoyment to which he was entitled, and which was perfectly consistent with the right of the owner of the mines. If it could be shown that he had wrought any mines himself, or had interrupted the other parties claim- ing under the reservation in working them, that would lay a ground upon which the presumption could stand. But nothing was alleged, except the mere absence of any evidence of the exercise of this reserved right, for he did not see how the circumstance, that in the conveyance of 1761 no notice was taken of this reservation, could weigh against the persons who represented the former owner, if they should think proper to assert their right. There were many cases, where from non-user of a right the inference of abandonment might fairly be made; but that did not apply to such a case as this. It was not so gene- rally true that the owner of mines worked every mine which he had a right to work, and therefore the relin- quishment of the right cannot be presumed from the non- exercise of it. It was well known that mines remained unwrought for generations; that they were frequently purchased or reserved, not only without any view to im- mediate working, but for the express purpose of keeping them unwrought, until other mines should be exhausted, which might not be for a long period of time. It was impossible, therefore, to infer that the right was extin- guished, though there was no evidence of the exercise of it since the year 1704 (m). In like manner, the Statute of Limitations (3 & 4 Will. 4, c. 27) does not apply to the mere want of posses- sion of mines by the real owner, but to the adverse pos- session of another. Thus, in 1725, the owner of the (m) Seaman v. Vaudrey, 16 Ves. tenham », Byrne, 12 Iv. C, L, Rep. 390. See M‘Donnell v. M‘Kinty, 376. 10 Irish Rep., L. R. 525; Tot- 10 RIGHT OF PROPERTY. [CHAP, II. whole estate severed the minerals from the surface. The mines had not been worked for more than forty years, and no entry had been made by any person. It was held, without hesitation, by the Court of Exchequer, that the title of the grantees of the mines was not barred by ab- sence of possession (7). The owner of the freehold, including the mines, does not lose his right to the mines by the grant of an ordinary lease of the land during the term. But if they are not excepted, he will only retain the barren right of property in them, and the lessee will acquire the equally barren right of possession, except with respect to open mines and quarries (0). By the law of Scotland the mines, both opened and un- opened, are presumed to be excepted in all agricultural leases, with powers to work and to make roads, on pay- ment of surface damage, unless expressly negatived by stipulation ( p). The minerals found on and under the sea shore belong to the crown, or to the lord of the manor, in the absence of other established ownership. The sea shore may be claimed as part of a manor by the usual proof of acts of proprietorship, as the appropriation of wrecks and royal fish, It may also be held by prescription and in gross, but it is usually parcel of the manor. The sea shore has been defined to extend, not between the highest mark of the spring tides and low-water mark, but between the or- dinary high and low-water marks. The other space be- tween the ordinary high-water mark and the highest mark of the spring tides belongs to the owner of the adjoining tenement (q). (m) Smith v, Lloyd, 9 Exch.562; Bell’s Pr. 1226; Morison’s Dict, 23 L. J., N.S., Exch. 194. 15, 253 and 267. (0) See Chap. IV.,'and Keyse v. (q) Lowe v. Govett, 3 Barn. & Powell, 2 Ell. & B. 132. Ad. 863, (p) 2 Stair, 9,31; 2 Ersk. 6, 22; SECT. I. SEA SHORE. 11 The expression “ ordinary high-water mark” has been further defined in the recent cases of Attorney-General v. Chambers, and Attorney-General v. Rees (r), in which an information was filed against the defendants for working coal under the sea shore near Llanelly, in South Wales. It was held by Lord Cranworth, L. C., on the advice of Barons Alderson and Maule, that the average of the medium tides in each quarter of a lunar revolution during the whole year gives the limit, in the absence of usage, to the rights of the crown on the sea shore. The limit of the shore reached by these tides is more frequently reached by the tide than left uncovered by it. For about three. days it is exceeded, and for about three days it is left short in each week, and in one day it is reached. Thus, the tides come to that point, or beyond it, for most parts of the year. This average includes the ordinary equinoctial tides, but it excludes all extraordinary inundations. The same rule will apply for defining low-water mark, in cases where that process becomes necessary. The right of a lord of a manor or other claimant of the sea shore under the crown extends only to the low-water mark, where a greater power than that of Canute seems to stay further enterprise. Yet it is well known that mines have been worked under the bed of the ocean. In one instance a shaft was actually put down to work a copper mine in the midst of the waves. Occasional leases of coal under the bed of the sea are made by the crown, and it may sometimes be important to inquire into the right of pro- prietorship. The sovereign right of the British crown to the “four seas” is not defined with accuracy in area, and is open to much dispute. In those places where it sub- stantially exists, the crown has by common right the ownership of the sea and the soil under it; and it would thus be entitled to the mines under these parts of the (r) 2 Bq. Rep. 1195; 23 L. J, C. C. 662. 12 RIGHT OF PROPERTY. [cHaP. II. ocean (s). Yet even here prescription might establish a right in a private subject (¢). Land gradually and imperceptibly added to the adjoin- ing demesne lands of a manor, by alluvial matter cast up from the ebb and flow of the tides, belongs to the lord, and not to the crown; on the contrary, land suddenly left by the retirement of the sea, in the absence of custom, belongs to the crown (w). In a case relating to the foreshore of the estuary of the river Dee, it appeared that the crown, as lord of the manor of Englefield, in the county of Flint, was entitled to the land lying between high and low-water marks called “ White Sands,” as parcel of the manor, and to the coal underneath. By letters patent, in the 12th year of Charles I., the crown had made a grant of coal within the commons, waste grounds, or marshes of the manor, with full powers to work. It was de- clared, that the grant should be construed strictly against the crown, and most strictly and beneficially for the grantees. An information at the suit of the Attorney- General, claiming the right of the crown to the coal within the “ White Sands,” was dismissed with costs. It was held, that the coal had passed to the grantees under the word “ waste”; that the grant was not that of a pre- rogative right; and that adequate words had been used for dealing with the wastes of a manor; that, in the ab- sence of any exception to the contrary, it was the clear intention of the crown to grant the coal under the fore- shore, and that, if there had been any doubt as to the true construction of the grant, it ought to be interpreted in favour of the grantees, in conformity with the express provision to that effect (v). (s) 1 Inst. 26% a, note 205; Sel- 5 Bing. 163. den’s Mare Clausum. (v) The Attorney-Gen. v. Han- (¢) Hale de Jure Maris, 11. mer, 4 De Gex & J. 205; 27 L. J, (u) The King v. Lord Yarborough, Chance, 837. 8 Barn. & C.91; 4 Dow. & R.790; SECT. I. | SEA SHORE. 13 An act, 21 & 22 Vict. c. 109, has been passed for de- claring and defining the respective rights of the crown and the duchy of Cornwall to the mines and minerals in or under land lying below high-water mark, within and adjacent to the county of Cornwall. By this act, all mines and minerals lying under the sea shore between high and low-water marks within the county, and under estuaries, tidal-rivers, and other places (below high-water mark), even below low-water mark, being in and part of the county, are vested in the duke of Corn- wall, as part of the soil and territorial possessions of the duchy. But this enactment is not to extend to the mines and minerals in or under land below high-water mark which is part and parcel of any manor belonging to the crown. All mines and minerals lying below low-water mark under the open sea, adjacent to, but not being part of, the county, are vested in the crown, with power to take or use, or to pass through, over or under any lands for the time being of the duchy within the county, either in the occupation of tenants under leases or agreements made subsequently to the date of the act, or in the occupation of the duke of Cornwall for the time being, for all the usual mining purposes, on giving two months’ previous notice, and making compensation to the duke and to all persons interested. No works are to be made within fifty feet of any dwelling-house, or upon any garden or orchard, or so as to interfere with any mining works of the duke, his lessees or tenants: sufficient gates and fences are to be maintained. The compensation to the duke for all or any such facilities in or over any lands of the duchy lying be- tween high-water mark and low-water mark is to consist of a sum equal to one-fifteenth part of the net dues or monies to be received by the crown from the mines and minerals so worked ; and in or over any other lands, it is to be settled by arbitration, if not determined by agreement. This compensation is in addition to that claimed for actual damages, which are to be settled in the same way. The 14 RIGHT OF PROPERTY. [CHAP. II. crown is not to be liable for damages done by its lessees. Any differences arising as to the true line of high-water mark or of low-water mark are to be settled by arbitration. Lands added to the county or taken from it under 7 & 8 Vict. c. 61, are not included in the county as defined by the act. There is the usual saving clause for rights of other persons. As the freehold of the highway is in him that has the freehold of the soil, with free passage for all people (w), the minerals will also belong to the owner, subject to the public rights (x). In trust roads the soil does not vest in the trustees without special enactment (7). By the General Turnpike Act, 7 & 8 Geo. 4, c. 24, s. 18, all minerals are reserved for the owners of the land, with powers to work them, so that no damage be done to the road. In the act for widening highways, 5 & 6 Will. 4, c. 50, there is a reservation of minerals for the owners of the land, without power to break the surface. The right to minerals under railways, canals and water- works is discussed in a subsequent chapter (z). Section II. IN COPYHOLD AND CUSTOMARY LANDS. Ir is now clearly established that, in the absence of special custom, the right of property in minerals, in copy- hold and customary lands, is vested in the lord, and the right of possession is vested in the tenant, and, conse- quently, in such cases neither the lord nor the tenant can exercise any right to work them without mutual consent. It certainly appears to be a singular feature in the con- (w) 2 Inst. 705. Rex v. Mersey Navigation, 9 B. & (z) Goodtitle ». Alker, 1 Burr. C.95; Rex v. Thomas, Ibid. 114; 143; 1 Roll. Ab. 392. Harrison v. Parker, 6 East, 154, (y) Davison v, Gill, 1 East, 69; (x) Chap. XI, SECT. I1.] COPYHOLD AND CUSTOMARY LANDS. 15 dition of lands of pure copyhold tenure that, though the copyholder was formerly a mere tenant at will, as he is mostly still so described, and might have been ejected. without notice or recompense, and whose whole estate of the present day has been acquired, by a series of encroach- ments upon the right of the lord, the latter should now be unable to enter upon the lands, merely for the purpose of taking possession of his acknowledged property, without being liable to an action of trespass. But the copyholder has now acquired an estate of inheritance in his lands, which, though still betraying, in many instances, the ves- tiges of his former interest, is attended with an indefeasible right of possession, not only to the surface, but to all under- neath the surface. Livery grant, whether express or pre- sumed, is taken most strongly against the grantor; and, as the grantor has not expressly excepted the mines, he cannot be allowed to defeat or detract from his own grant by resuming any part of that possession which has wholly passed from him. Asa mere tenant at will, the possession of the tenant extended over the whole property. This pos- session has not been abridged by a subsequent enlarge- ment of his estate. The mines do not form a distinct possession, but are part of the unsevered inheritance of the whole property. For if the copyholder, contrary to the custom, worked the mines, he would, under the old law, have been liable, not to an action of trespass, but of waste (a). It is stated by a learned writer on copyholds (4), that this doctrine was established, with respect to mines, about a century ago, by the case of the Bishop of Winchester v. Knight (c). The law on this subject, however, has never been disputed, except on the authority of a dictum in the case of Rutland v. Greene. But it was not till the case of Bourne v. Taylor was brought before the Court of (a) Bourne.v, Taylor, 10 East, (2) Scriven on Copyholds, p. 509. 189, (c) See infra, 16 RIGHT OF PROPERTY. [cHaP. I. King’s Bench, that the subject received a complete inves- tigation. In the case of Rutland v. Greene (d), the precise ques- tion was not before the court, but the circumstances were these:—A mine was opened by a parson upon his glebe, and the patron moved for a prohibition to restrain.him under the equity of the statute 35 Edw. 1,s. 2. The pro- hibition was not granted, because, it was said, otherwise none of the mines under glebe lands throughout England would be opened. Siderfin adds, “the same law seems of a copyholder of inheritance. Quere bien.” It would appear from the query of Siderfin, and the account of Keble, that this point was discussed by the court, although Levinz says nothing about it in his report. Keble says, Twisden, C. J., conceived the lord may open a mine in a copyhold of inheritance. Foster, J., held it a trespass, and Keeling, J., conceived he could not do it. Thus, then, were the dicta of two judges against the dictum of one, in favour of the opinion that the lord’s rights were not thought necessarily to extend to the opening of a new mine in the land of the copyholder. In another case, the lord granted all coal mines within the manor for ninety-nine years to Dimery, who underlet to Player. Dimery’s term was afterwards surrendered to the lord, but Player’s interest was not extinguished; the ‘lord opened new pits upon the copyhold, and took away the coal, upon which Player brought trover against him. It was held by the court, that the action was maintainable, but that neither the lessee nor the lessor can enter upon the copyholder to dig the coals, for the copyholder shall have trespass for breaking his close, and digging his coals (e). Lord Chief Baron Gilbert, in his treatise on Tenures, says (f), “It seems to me that a copyholder of inheritance (d) 1 Keb. 557; 1 Sid. 152; 1 243, : Lev. 107. (f) Gilb. Ten. 327, (e) Player v, Roberts, W. Jones, SECT. 11.] COPYHOLD AND CUSTOMARY LANDS. 17 cannot, without a special custom, dig for mines, neither can the lord dig in the copyholder’s lands, for the great pre- judice he would do to the copyhold estate; and the copy- holder himself seems to have no interest in the inheritance of the lands.” In the case of the Bishop of Winchester v. Knight (9), a bill in equity was brought for an account of ore obtained from a copper mine in the land of the copyhold tenant of the bishop. It was contended that, as the tenants had used to cut down and sell timber, and also dug stone and sold it, they were entitled to the mines. But the Lord Chancellor Cowper said, that though the tenant might do one sort of waste, as to cut down and dispose of the timber, that might be by special grant, and was no evi- dence that the tenant had a power to commit any other kind of waste, viz., waste of a different species, as that of disposing of minerals. But that question being doubtful, and at law, he directed the bishop to bring an action of trover. This action was afterwards tried, and there never having been any mine of copper before discovered in the manor, the jury could not find that the customary tenant might, by custom, dig and open new copper mines. Upon the production of the postea, the Chancellor held, that neither the tenant without the license of the lord, nor the lord without the consent of the tenant, could dig in these copper mines, being new mines(f). It may be observed that this opinion, with respect to the right of the lord, was extrajudicial. The question in dispute was, to whom the ore already raised belonged. The tenant having failed to establish a custom in his favour to work the mines, the produce, undoubtedly, belonged to the lord, as property severed from the freehold, and without reference to the general question of his night to enter and work, (g) P. Wms. 406. Whitechurch v. Holworthy, 19 Ves. (hk) See also Townley v. Gibson, 214; 4 Maul. & Sel. 340. 2 T. R. 704, per Lord Kenyon; ‘'B. Cc 18 RIGHT OF PROPERTY. [CHAP. IL. At length occurred the case of Bourne ». Taylor (7), in which the whole doctrine was, for the first time, fairly dis- cussed, and the general principle of law was fully acknow- ledged. An injunction had been granted by Lord Erskine in 1806, with an understanding that the parties should decide the case at law (j). Accordingly, an action of trespass was brought for entering the lands of the plain- tiff, situate in the township of Backworth, in the county of Northumberland, and digging for minerals. The de- fendant pleaded the general issue, and that the alleged trespass was committed by servants of the Duke of Nor- thumberland, who was lord of the manor of Tynemouth, within which the lands were situate, and who claimed the minerals in the copyhold tenements in that manor. The case came before the Court of King’s Bench on demurrer ; and after a very able argument on behalf of the lord of the manor by Mr. (afterwards Baron) Hullock, Lord Ellenborough, C. J., delivered the judgment of the court, and, after a review of the cases, observed, that, valuable as was the supposed right, there was not a single instance shown in which any lord had ventured to act upon it. The injury to the tenant would naturally have produced resistance on his part—a suit would have been the con- sequence, and the result of such suit must have been known in Westminster Hall, and, as none such was known, it might fairly be presumed that a litigation of that kind had not taken place. The court was of opinion that, in the absence of custom, the lord had no such right. A motion was sometime afterwards made to dissolve the injunction. Lord Eldon referred to the case at law, which, he said, decided nothing as to the right put in issue be- fore him, [viz., whether the lord had, by custom, a generah authority to work the mines,] but which showed that the lord of the manor may be in the same situation with respect (@) 10 East, 189. (J) Grey ». The Duke of Northumberland, 13 Ves. 236. SECT. I1.] | COPYHOLD AND CUSTOMARY LANDS. 19 to mines as with respect to trees—that is, the property may be in him, but it did not follow that he could enter and take it without consent, and refused to dissolve the injunc- tion till the right was tried at law, unless means for pro- curing a speedy. trial could not be insured (2). The action was afterwards tried, and the lord of the manor was unable to establish a custom to enter and work the mines in these copyhold lands. This right of possession thus vested in the tenant being capable of defence against the acts of the lord, it will, of course, follow, that an action of trespass is also main- tainable against a stranger for working the mines of the lord. This was decided in a case where an action of trespass was brought by a copyhold tenant of the manor of Aber- carne, in the county of Monmouth. It was contended, that a copyhold tenant could not maintain an action for a trespass to the subsoil, he being in possession of the sur- face only, and the mines and trees being in the lord. But it was observed by Lord Tenterden, that the general rule being that he who has the surface has the subsoil, it seemed to him that the copyholder had possession of the subsoil, though he might have no property in it. The authorities which show that a lessee at will may take a release of the inheritance whereby his estate is enlarged, or a confirma- tion for his life upon which a remainder may be dependent, were in favour of that opinion. Mr. Justice Littledale said, if the possession of the mine were not in the copy- holder, it would be difficult to say to what extent any portion of the subsoil belonged to him. Although the property in the mine might be in the lord, he had not such a possessory right in it as to entitle him to maintain trespass against a wrong-doer. The copyhold tenant had such a possessory right, and might recover substantial damages for any actual injury done to the surface, and (k) 17 Ves. 281. e2 20 RIGHT OF PROPERTY. [CHAP. II. nominal damages for a trespass committed below the surface (2). It may be concluded from the above case that an action of trespass would be equally maintainable by the copy- holder against the lord, if the mines were worked without injury to the surface. The tenant would still be entitled to defend his right of possession (m). But if the minerals are once severed from the inheritance, whether by the copyhold tenant, or by any stranger, the lord will be entitled to recover them in an action of trover. They are then in the same condition as trees which have been blown down or felled. They are no longer part of the freehold, but personal chattels belonging to an owner whose right of possession has accrued (n). Such is the law with respect to minerals, in the absence of any special custom. But the authorities which have been cited also acknowledge, that either the copyhold tenant, or the lord, may, by special custom, have acquired an exclusive right to them ; that the former may have thus gained a right of property as well as a right of possession, and that the latter may have still retained his original power to enter and take possession of his property (0). In the great Cornwall case of Rowe v. Brenton, the owner of a conventionary tenement, which was held in fee from seven years to seven years, renewable for ever, claimed the copper in his lands, in opposition to the claims of the Duchy of Cornwall. This copyhold tenure pervades all the manors of the duchy. The question of right seems to (1) Lewis v. Branthwaite, 2 Barn. (0) Gilb. Ten. 327; Bishop of & Ad. 437. Winchesterv. Knight, supra; Bourne (m) See Mitchell v. Dors, 6 Ves. v. Taylor, 10 East, 196; Rowe v. 147. Brenton, supra; Parrott v. Palmer, {n) Player v, Roberts, W. Jones, 3 Myl. & K. 632. See also 13 Co. 243; Bishop of Winchesterv. Knight, 68; 1 Leon. 272; Ashmead v. Ran- 1 P. Wms. 406; Rowe »v. Brenton, 8 ger, 1 Raym. 551; 3 Salk. 638; re- Barn. & C. 737; Halcomb, p. 15; versed in D. P., Hanmer v. Chance, 8M. & R. 133. 84 L. J., Chane. 413. SECT. I1.] | COPYHOLD AND CUSTOMARY LANDS. 21 have been agitated previous to the year 1763(p). It was decided against the tenant in an action of trover, both at the trial at nisi prius, and at the trial at bar, in Westmin- ster Hall. On the latter occasion, Lord Tenterden ob- served to the jury that it happened, in many manors, that the lord of the soil was entitled to the minerals, but had no right to enter upon the lands of the copyhold tenants to search for and obtain those minerals without the con- sent of the tenants, and that all the evidence given by the plaintiff as to the interruption of workings might be ex- plained by the right of the tenant to prevent the owner of the minerals from digging for them without his consent, but that a distinct positive usage for the conventionary tenants to take the minerals would be valid (g). The tenant was not able, on either of these occasions, to prove such a usage. The right of property was, therefore, decided to be in the lord. As the action was only one of trover for copper actually raised and severed, there was, of course, no decision with respect to the right of the lord to enter and work the copper mines. But by the recent statutes (r) for enfranchising these conventionary tenements, the mi- nerals in them are reserved to the Duchy of Cornwall, with full powers to work them, on payment of com- pensation. The custom of tin-bounding is not to be affected (s). All copyholders, whether in fee, or for life, or for years, have a possessory interest in mines to the possession of which the lord is not entitied by custom. But it has been held, that a copyholder for life, without power to renew, or nominate a successor, is incapable of acquiring, by any special custom, a proprietory right over trees(¢). It is presumed a copyholder for years would be in the same (p) Halcomb, p. 58. 12 Vict. c. 83. (q) 8 Barn. & C.766; Concanen’s (s) See Chap. XVI. Rep. (4) Mardiner v. Elliott, 2 T. R, (r) 7 & 8 Vict. c. 105, and 11 & 746; Gilb. Ten. 237, 22 RIGHT OF PROPERTY. [CHAP. II. condition. A similar principle would probably be held to be applicable to mines, though the point has never been discussed. The law favours the claims of the copyholder, on account of the permanency of his interest. Cessante ratione cessat lex. Butsuch cases must not be confounded with those in which particular estates are only carved out of the copyhold fee (z). When the lord is entitled to work the mines of the manor, he or his grantee cannot make use of the works in the copyhold lands, for transporting the produce of other lands which are not within the manor, and which belong to independent owners. In a case of this kind, an injunc- tion had been applied for, and the defendant demurred for want of equity, alleging, that the bill had not stated that any injury or irreparable damage had been committed. The demurrer was allowed by Stuart, V. C., but was overruled, on appeal, by Campbell, L. C., who said, the defendant had no right to extend the use of the under- ground tramway to the coals raised in lands not within the manor, and that the amount of injury, if infinitesimally small, was immaterial in considering whether the de- murrer should be allowed or overruled. It had been argued, that the plaintiffs were confined to an action of trespass, or some other legal remedy. But the defendant was charged with making a profit by the surreptitious use of the way, and with having broken the soil of the copy- holder for the purpose of working the other mines, and of ventilating them by the breaking of barriers. All this was not a mere dry trespass for which a Court of Equity would supply no remedy. The averments in the bill might not show conclusively that the plaintiffs were en- titled to an injunction, or to an account, or to discovery. Upon answer and evidence, it might be shown that ac- quiescence, or minuteness of injury, or some undisclosed right of the defendant might cause the injunction to be (u) Denn d. Joddrell v. Suhnson, 10 East, 266. SECT. I1.] COPYHOLD AND CUSTOMARY LANDS. 23 refused, and the bill to be dismissed. But the demurrer, for want of equity, could not be maintained (v). In the above case, a distinction was drawn, in the judg- ment, between the possession of a copyhold owner, which reaches to the centre of the earth, and that of a freehold owner of the surface, where the minerals belong to another owner as a separate tenement. But this distinction does not appear to be generally correct. In either case, when particular portions only of the strata or the minerals—as beds of coal, for instance—belong to the mine proprietor, with powers to work, the owner of the surface will retain his right of possession to all below it, subject to such ex- ceptions, and he would be enabled to object to any use of the subjacent parts for working the minerals of any ad- joming owner ; ‘Quantum vertice in auras Etherias, tantum radice in Tartara tendit.” In like manner, when the whole of the mines and minerals, either in copyhold or in freehold lands, belong to the mine proprietor, with powers to work, the same right of posses- sion, as a general rule, remains with the owner of the sur- face (x). In the frechold case, the possession is only so far divested as may be necessary for the rightful purposes of the mine proprietor. Although he may hold the mines as a separate inheritance, he would not on that account alone be enabled to work the adjoining mines, without special powers for that purpose founded on grant, exception, or prescription. If any grant or prescription could be so construed as to manifest the intention that certain por- tions of the subsoil were to be held and enjoyed in the same manner as the different floors or stories of a house are sometimes held, the right of external working might be asserted. But in other cases, he would only have rights (v) Bowser v. Maclean, 2 De Gex, Man. & G. 139; 10 L. J, N.S, F. & J. 415; 30 L. J., Chan. 273. C. P, 246, . (x) See Greathead v. Morley, 3 24 RIGHT OF PROPERTY. [CHAP. II. relating to his own mines. Of course, such questions cannot arise in those copyhold cases where there is no right in the lord to work the mines. It remains to be seen under what circumstances nominal or substantial damages can be recovered. The right of working adjoining mines by underground communications is often very valuable, and the owner of the surface, who can maintain an action of trespass, may claim a right to participate in the profit, or to prevent the continuance of the trespass, although he may have suffered no injury on the surface. There does not appear to be any objection to the work- ing of excepted or manorial mines by means of adjoining mines, in cases where the right to work is not disputed. It has been decided, that either a custom or prescription which claims a manorial right to work mines under any messuages or buildings, without making any compensation for the damage occasioned to them, but only for the user of the surface, is unreasonable and invalid(y). In this case, an injunction had been applied for and refused, with a direction to bring an action at law (z). This action was brought in the Court of Queen’s Bench, and was heard on demurrer. In another case (a), which arose in the same manor, and was in fact against the same de- fendant, he justified his acts by a plea of sufficient com- pensation for surface injury. There was no question of buildings. On the trial at bar, in the Common Pleas, the compensation was found by the jury to be sufficient, and the Court directed a verdict for the plaintiff on another plea of the defendant, which claimed the right generally without mention of compensation, on the ground that a prescription for the lord to work and the landowner to (y) Hilton v. Lord Granville, 5 P. 283; 10 L. J., N. S., C. C. 398. Q. B. 701; 13 L. J., N.S., Q. B. (a) Paddock v. Forrester, 1 Dowl. 193. P. C., N. S. 527; 11 L. Ju, N.S, (z) Ibid., 4 Beav. 130; 1 Cr.& C.P. 107. SECT. II.| COPYHOLD AND CUSTOMARY LANDS. 25 receive compensation was indivisible. This subject is discussed in the subsequent chapter on injuries. In a case where rocks had been dislodged from cliffs situate in the land of other owners, and scattered over or imbedded in copyhold lands, in which the copyholder had no claim to the minerals, it was held, he could not sell or dispose of them unless they had been shown to have been detached by some accident or convulsion of nature, since the time of his admission to the tenement. For they had . become portions of the soil. But he might remove them for the benefit of his tenement (b), In a case of ejectment for forfeiture, the copyholder claimed the unlimited right to dig clay in his own tene- ment for making bricks for sale, without the license of the lord. It was decided by the Court of Exchequer, and, on appeal, by the Exchequer Chamber, that the custom was valid. It was contended that such a custom was inconsistent with the right of the lord, who had an interest in the soil, and might extend to take away the soil itself, to his prejudice, in case of escheat and forfeiture. But it was held, that there was no distinction between a custom to take all the timber, or all the minerals in copy- holds, and a custom to take the clay(c). This decision was affirmed in the House of Lords. It was observed by Lord Cranworth, that it was not easy to define what was called a reasonable custom, as between a lord and the copyholders—that the relation between them must have had its origin in remote times, by agreement, when he was the absolute owner of the soil, and they were his tenants at will—that any restrictions he imposed, or any rights they demanded, were within the competency of the lord to grant, or the tenants to stipulate for—and, if evidence could be given of what was then agreed on, and of its being acted upon since, it was difficult to see how it (b) Dearden v. Evans, 5 M. & W. — stone, 6 Hurl. & N. 123; 30 L. J., 11; 8L.J., N.S., Exch. 171. Exch, 3; 2 F. & F. 256. (e) Salisbury (Marquis) v. Glad- 26 RIGHT OF PROPERTY. [CHAP. II. could be declared void as unreasonable. A distinction was drawn between a case affecting only the lord anda particular tenant, and the cases which affected other copy- holders, as Broadbent v. Wilkes, Wilson v. Willes, and Hilton v. Lord Granville (d). 7 It does not appear to have occurred to the learned Judge (Wightman, J.), who delivered the judgment of the Appeal Court, that clay was a mineral, and that the case, on that ground, could not have been otherwise decided. When the minerals in copyhold lands belong to the lord of the manor, they do not form an inheritance dis- tinct from the freehold, but are part of the demesnes of the manor. But in the grant of wastes, or in the en- franchisement of copyhold lands, the mines and minerals will not be reserved by the common reservation of all seigniories, royalties and jurisdictions. These must be mentioned in express terms;—if not, the minerals will become the property of the owners of the surface, and part of the same inheritance, and all preceding contracts and leases will enure for their benefit (e). A copyholder, though not absolutely entitled to the trees upon his lands, may, by custom, be entitled to cut down and use them for repairs and the necessary purposes of his occupation(f). The same right may exist with respect to minerals; and a copyholder, though not entitled generally to any description of minerals, may, by custom, acquire a right to take and use any material, as limestone, maarl, clay, and gravel, for the same purposes(g). For if custom can give a copyhold tenant a general right to minerals, it may also give him a limited ownership over them. Indeed, it appears probable, that such a privilege (d) Ibid., 84. J., C.P. 222; 9 2 Brownl. 319; Godb. 173; Ash- H. L. Cas. 703. mead v. Ranger, 1 Lord Raym. 551; (e) Townley » Gibson, 2 T. R. 3 Salk. 638. 701. (g) Gilb. Ten. 327, (f) Heydon v. Smith, 13 Co. 68; SECT. I1.] COPYHOLD AND CUSTOMARY LANDS. 27 would exist of common right, and without reference to custom (A). The same Jaw applies to all lands in which the freehold is vested in the lord, in whatever manner the tenant’s interest may be passed, as, for instance, lands of the tenure of customary freehold. For an owner may have a free- hold estate, but still the freehold tenure may remain in the lord (2). In the recent acts for the enfranchisement of copyhold and customary lands, provision is made for the rights to mines(j). By the compulsory statute, it is declared that no enfranchisement shall affect the mineral rights of the lords of manors or any tenants without their express con- sent in writing. In the purchase of a freehold under these statutes it has been held, that the vendor is not obliged to produce the title of the lord of the manor, and that an agreement to purchase, entered into after the passing of the first Enfranchisement Act, and before that of the second act, must be considered as made with reference to the acts, and to be subject to reservations which had been made in favour of the lord under the second act (2). These acts have been amended by 21 & 22 Vict. c. 94. The copyhold commissioners are empowered to act in framing awards of enfranchisement in cases of disagree- ment between the lord and any tenant. After enfran- chisement, the owner has full power to disturb or remove the soil for making roads or drains, or for buildings, or for procuring water, without prejudice to the mining rights reserved by the last act. (h) See Heydon »v. Smith, supra. (j) 4 & 5 Vict. c. 35, ss. 39, 82, (4) Stephenson v. Hill, 3 Burr. 84; 15 & 16 Vict. c. 51, s. 48, and 1278; Doe d. Reay v. Huntington, 21 & 22 Vict. c. 94. 4 East, 271; Brown »v. Rawlins, 7 (k) Kerr v. Pawson, 25 Beav. 394; East, 409; Portland (Duke of) ». 27 L. J., Chane. 594, Hill, 35 L. J., Chane, 439. 28 RIGHT OF PROPERTY. [cuar. I. The feudal or universal tenure, in Scotland, corresponds with the English copyhold tenure. But the customs are uniform; and the estates of the superior and the vassal are distinct and separate. In the absence of express con- trary stipulation, the superior is entitled only to feu- duties and perpetual rents; but the vassal has a freehold estate, which extends a ceelo usque ad centrum, and which of course includes the mines, and full powers to work them. Secrion III. IN COMMON AND INCLOSED LANDS. By presumption of law, the lord of the manor is entitled to the exclusive property in the soil of all common and waste lands of the manor, and consequently to all mines and minerals therein, for the tenants have no other in- terest than to take the herbage by the mouths of their cattle (1). This interest of the lord, as in copyholds, is not con- ferred by custom. It is a right reserved to him out of his original grant, and is only proved by custom(m). This right, therefore, remains valid till it is impeached by evidence which may show a different ownership, either in the commoners or in strangers (7). It has been decided that a prescription by copyholders to have the sole right of pasture upon a common, in ex- clusion of the lord, may be established (0). For, though (2?) Bolton v. Lowther, 2 Dick. 677 ; Horsey v. Hagberton, Cro. Jac, 229; Cooper v. Marshall, 1 Burr. 265; Sadgrove vw. Kirby, 6 T. R. 486; S.C. in error, 1 Bos. & Pul. 17; Filewood v. Palmer, Mos, 169; 5 Vin. Ab. 7. (m) Folkard v. Hemmett, 5 T. R. 417,n.(a). See Wentworth ». Clay, Fin, Rep. 263; Boulcott » Winmill, 2 Camp. 261; Northwick v. Stanway, 3 Bos. & Pul. 346, (n) See Co. Litt. 261 a, note 205. (0) Hoskins ». Robins, 1 Mod. 74; 2 Saund. 324; 2 Keb. 842; 1 Lev. 123; 2 Pollexf. 18; 1 Ventr. 123, 163. See also Potter », North, SECT. III. | COMMON LANDS. 29 the interest of lord is such, that a custom for his entire exclusion from the profits of a common would be held un- reasonable, and could not be maintained, yet his right to any of the minerals or to the trees would show the requisite participation in the profits. For the same reason, the lord, by participating in the right of pasture, or in any other way, may, by custom, lose all claim to the minerals. This right of the lord to the subjacent soil, in the absence of custom or express grant, is of so strong a nature, that it may be exercised to the destruction of the herbage, and to the partial if not the absolute exclusion of the rights of the commoners (p). His authority, in this respect, is quite distinct from that derived from the Statute of Merton, and does not depend upon a sufficiency of herbage being left to the commoners (g). It would be difficult to define any limit to the exercise of such a right of the lord (r). His claim is paramount to the privileges of the manorial tenants. His interest in the soil is the remnant of an estate once absolute and free from control. Tn the case of Bateson v. Green, the lord claimed a right to dig clay in a common already insufficient to supply herbage for the commoners. It was held by the Court of King’s Bench, that the lord might have such a right, and that the evidence supported it. Lord Kenyon observed, that if the lord had only a right to dig clay for his own use, or had any other limited right, then his digging for sale would have been an excess. Mr. Justice Buller, who was an eminent mining lawyer, added, that the extent of the several rights of the lord and the commoners depended altogether on immemorial custom; that where there are 1 Vent. 883; 1 Saund. 347; 2 Keb. 513; 1 Lev. 268; North v. Coe, Vaugh. 251; 1 Lev. 253; 2 Bulst. 87, n.(6); Co. Litt. 122a; Kentick v. Pargiter, Cro. Jac. 208; Yelv. 129; Douglass v. Kendal, Ibid. 256 ; Pitt ». Chick, Hut. 45. (p) Bateson v. Green, 5 T.R. 411. See Clarkson v. Woodhouse, 5 T. R. 412, dey 2 Ty R. 392. (q) 20 Hen. 3, u. 4; and see 13 Edw. 1, st. 1, v. 46. (r) See Arlett v. Ellis, 7 Barn. & C. 366, 873; Rogers v. Taylor, 1 Hurl. & N. 828; 26 L. J., Exch. 208. 30 RIGHT OF PROPERTY. [cHapP. II. two distinct rights which encroach on each other, the question was, which was subservient to the other ?—that in general the lord’s was the superior right, because the pro- perty of the soil was in him; but that if the custom showed it was subservient to the commoners, then he could not use the common beyond that extent; but there the evi- dence showed that the lord had always dug the common, when, where and in what manner he pleased, though for a great number of years past there was not a sufficiency of common for the tenants. Some doubt was thrown upon the correctness of these opinions in the judgment in the late case of Hilton v. Lord Granville (s). But there is a clear distinction between copyhold lands, in which the tenant has the possession, and common lands, where the right of possession is wholly vested in the lord. The estate of the lord in commons is of superior origin and power to that of the commoners. In customary lands he claims the right of property in mines as part of his freehold inheritance, but he claims the right to work them by prescription, as they are in the possession of others. In common lands he has never lost possession of any part, and that possession, once absolute, is still sufficient to secure to him the full benefit of his first rights. For all presumed grants of common must be held to have been made subject to the existing and concurrent interests of the lord. He is restrained by statute from arbitrary acts of inclosure, which would defeat the acquired rights of the commoners; but he is not amenable for any acts which are necessary for the full enjoyment of his own rights, even if these acts should tend altogether to deprive the commoners of their pasturage. In a suit for specific performance, it was objected that the mines agreed to be purchased were situate under a common where others had a right of common, and con- sequently the purchaser would be subject to actions for (s) 5 Q.B.701; 13 L. J., N.S., Q. B. 200. See last section. SECT. III. ] COMMON LANDS. 31 sinking shafts to work the mines: Lord Eldon, after re- marking upon the improbability of any obstruction from the commoners, said, that in case of any action a farthing damages would be sufficient, and decreed a specific per- formance (t). In the above case, the mines were sold together with an estate, but it does not appear whether the vendor was the lord of the manor, or how he acquired a right to the mines. It is submitted, that if his right fell within the scope of the preceding observations, a commoner could have no pre- tence for claiming even a farthing damages. The right of the commoner to the surface is thus sub- servient, under such circumstances, to the right of the lord to take the minerals, but the exercise of that right must be bond fide, and unattended with malice. On one occasion, the Court of King’s Bench held, that if the lord exercised the right of taking stone wantonly, and so unnecessarily to interfere with the commoners’ right of pasture, he would be liable to an action, but not, if he acted honestly in getting stone as occasion required (z). A prescription, or an actual possessory title, which gives the right to the minerals of a common to the commoners, must, as-in other similar cases, be evidenced by distinct acts of ownership. Thus, an action of trover was brought for copper ore raised upon Towan, in the parish of St. Agnes, Cornwall, by the lessees of the lord of the manor, who was entitled to the toll of tin in all the lands, both customary and free- hold, and also in the wastrell or common called Towan Common. The defendant was a lessee of the owners of six tenements in Towan vill, who were exclusively entitled to the herbage, and five of which tenements were freehold and one customary freehold. It was proved, that these owners had received dues of copper in respect of sets (t) Anon. Chance. 7th Sept. 1803, (u) Place v. Jackson, 4 Dow. & MS. See Sugden, Vend.and Purch. R, 318, vol. 2, p. 184. 32 RIGHT OF PROPERTY. [ CHAP. II. granted by them for twenty or thirty years. It was in- sisted at the trial, that the lord of the manor was entitled to the copper under the waste, but Bayley, J., said, that though the general presumption of law was, that the soil of the waste was in the lord of the manor, yet it might be shown by evidence of acts of ownership to be in the tenants of the six tenements. A verdict was found for the defendant, and a new trial was afterwards refused on the ground of adverse possession (v). It has been said before that the lord cannot, by custom, be entirely excluded from the profits of acommon. In the case just cited, it appears that the lord had no right either to the herbage or to the copper mines, but his right to the toll of tin still existed. But it is presumed the lord may possibly lose his claim altogether to any part of thé surface or subsoil of a com- mon, by neglecting to assert his rights by acts of owner- ship, or by his title not being otherwise acknowledged. If, for instance, the minerals are worked by strangers, who, in the course of time, are enabled to establish a title to them by prescription, both against the lord and the commoners, it must be inferred that a grant of the minerals has passed from the lord to the owners, who, with respect to the participation in common rights, will thus stand in the situation of the lord. The lord himself may also be deprived of all profits of the common by his own express act, and for a valuable consideration (w). Whether his title to the minerals has been transferred by usage, or by express grant, it cannot, at any rate, be supposed that his being thus deprived of any part of the profits would in- validate the existing rights of the commoners. It appears, then, that the right to the minerals of a com- mon may be vested either in the lord by presumption of law, or in the commoners themselves by prescription (v) Curtis v. Daniel, 10 East, 273. (w) See Doe d. Lowes v. Davidson, 2 Maul. & Sel. 194. SECT. IIl,| IN COMMON AND INCLOSED LANDS. 33 founded on custom, or actual ownership of the soil, or in strangers, by express grant or sufficient acts of proprietor- ship. In the first case, the minerals are part of the demesnes of the manor, and the possession of them as well as the property in them being vested in the lord, the right may be exercised without much reference to the concurrent in- terests of the commoners. In the second case, the pos- session of the minerals will be equally vested in the com- moners, but the right cannot in general either exist or be exercised to the utter exclusion of the lord or his grantees from the profits of the common. In the third case, the mines will form a distinct possession and inheritance. But it must not be concluded, that in cases where the general right of the lord to the minerals is not disputed, the commoners are necessarily excluded from all claim to any part of them, or that the right of the commoners should in every case exclude a similar claim on the part of the lord. There be also divers others commons, says Lord Coke, as of estovers, of turbary, of piscary, of digging for coals, minerals and the like (2). It would appear, however, that when the right to the minerals remains in the lord, the tenants can then only claim a restricted right to take and use any of them. In one case (y), the rights of the tenants of a manor to dig for gravel and sand on the wastes was acknowledged, and it was held that the lord could not inclose, under the Statute of Merton, against such a right or any right of estovers. But this opinion was qualified in a subsequent case (z), which held that inclosures might be made against such rights, if a sufficiency of common was left for their (x) Co. Litt.122a; Stile v. Butts, but see 7 T. R. 745. Cro. Eliz. 434. (z) Shakespear v. Peppin, 6 T. R. (y) Duberley v, Page, 2T.R.391; 741. B. D 34 RIGHT OF PROPERTY [ouar. I. exercise. In an action between the same parties, the de- fendaut pleaded that he entered for the purpose of digging “ for the necessary repairs of the defendant.” The Court of King’s Bench held, that in pleading a right to enter a common to dig for and carry away sand and gravel for the repairs of a house, it was necessary to allege that the house was out of repair, that the party entered for the purpose of digging for and carrying away sand and gravel for the necessary repairs of the house, and that the materials were used for the purpose (a). A right of turbary is confined to such a quantity as is sufficient for the house to which the common is append- ant(b). The same rule seems to apply to the night of the tenants to take stones and other minerals for their houses, for the repair of their buildings, and the improve- ment of their lands. But in all cases such rights must be claimed and exercised for the purposes of actual improve- ment. In one case, a custom was set aside, because it was not defined to what sort of improvement the custom ex- tended. It was not stated to be in the way of agriculture or horticulture. The Court said, it might mean all sorts of fanciful improvements; there was nothing to restrain the tenants from taking the whole of the turbary of the common and destroying the pasture altogether. A custom of that description ought to have some limit, but there was there no limitation but caprice and fancy, and such a claim was inconsistent with the rights of all the other com- moners, as well as of the lord (c). When common lands are inclosed under an act of par- liament, and there is no provision as to the tenure, the allotments will be of freehold tenure, even if the ancient lands are of a different tenure(d). This, however, is (a) Peppin v. Shakespear, 6 T. R. (c) Wilson v. Willes, 7 East, 127. 748. (d) Doe d. Lowes v. Davidson. 2 (6) Tyrringham’s case, 4 Rep. 37. Maul. & Sel. 175; Townley v. Gib- SECT. I1I.] IN COMMON AND INCLOSED LANDS. 35 usually provided for by the act, and the right to the minerals is generally reserved to those who are supposed to be entitled to them. If the minerals are not expressly mentioned in the act, it would seem that the several owners of the allotments will be interested in them ac- cording to the nature of the tenure, for they will not be reserved under the ordinary clause saving all royalties (e). If the lands awarded are freehold, the right to the mines must, therefore, belong to the owner of the surface, as part of the freehold. If copyhold, the right would, seem to remain in the state in which the right to all mines in copyholds is adjusted in the absence of special custom, that is, the right of property will be in the lord, and the right of possession in the tenant, unless the right was previously acquired by the commoners by custom. If leasehold, the right will subsist in the manner pointed out in a succeeding chapter (f). The rights of all other persons but those whose interests are clearly intended to be barred by the act, including, of course, those who may have acquired an independent inte- rest in the mines of a common, will be reserved by the general saving clause (q). In Townley v. Gibson there was a subsisting lease of the mines from the lord at the time of procuring the act of inclosure. The mines had ceased to be worked. But it was held that the lessor’s interest in the lease passed to the owners of the allotments. In one act of inclosure, it was directed that the allot- ments to the commoners should be deemed to be within the township in which the lands of the commoners were situate. It was held, that the rights and liabilities of the owners of coal mines, either worked or unworked, under the allotments, were not altered by the act (A). son, 2 T. R. 701; Revell v. Jodrell, (f) Chap. IV. 2 T. R. 424; Doe d. Sweeting v. (g) See 41 Geo. 3, c. 109, s. 41. Hellard, 9 Barn. & C. 789. (h) Rex v. Pitt, 2 Nev. & M. (e) Townley v. Gibson, supra. 363. D2 36 RIGHT OF PROPERTY [cuar. 11. There has often been much difficulty in giving a proper construction to acts of inclosure, many of which have been informally drawn. In a case before cited (2), the reserva- tion for the lord was of “all mines and minerals.” A sub- sequent clause, enabling the lord to work, specified “the lead ore, lead, coals, ironstone and fossils.” It was held, that stone also was reserved, and that the reservation was not confined to metallic minerals. In another case, it was declared that the lord’s seignorial rights were not to be prejudiced, except the right to the soil, and that he might thereafter enjoy all mines and minerals, as if the act had not been passed. It was held, that the word soil meant surface, and that the lord retained his mineral rights (j). In another case(h), the act directed an allot- ment to be made for the getting of stone for highways and “for the use of the inhabitants” of the parish. It was held, that the right of the latter was limited to the repair of roads, and did not extend to the purpose of burning lime into manure. In another case, where the lord was previously entitled to the minerals of the common, the Inclosure Act neither recited his rights nor made any express reservation of them; but it was enacted, that an allotment should be given to him for his right in the soil, and also for the damage he would sustain by being obliged to make satis- faction to the proprietors of the lands in getting the minerals. It was also enacted, that if the lord should enter into the lands for taking the minerals, he should make satisfaction accordingly. It was held, that the lord did not take a mere right to work, but that the minerals were reserved to him by implication (J). The general act of inclosure, 41 Geo. 3, c. 109, s. 32, authorizes a sale of part of the common lands for defray- () Earl of Rosse vy, Wainman, 14 N. S., Exch. 805; 14 M. & W. Mee. & W. 859; 15 L. J., N.S, 233. Exch. 67; affirmed in error, 2 Exch, (1) Micklethwait v. Winter, 20 800. L. J., N. S., Exch. 818; 6 Exch. (7) Pretty v. Solly, 26 Beav. 606. Rep. 644, (x) Rylatt v. Marfleet, 14 L. J., SECT. l1.] IN COMMON AND INCLOSED LANDS. 37 ing expenses, and declares the lands so sold to be dis- charged from all common and other rights therein. But a special act, which reserves all the mines directed to be divided and inclosed to the lord, will control the operation of that clause, so as to preserve the lord’s right, even in the allotments sold; and the meaning of the word “ soil” will be confined to the surface, if a contrary construction would defeat the reservation (m). In the recent statute for facilitating the inclosure, ex- change, and division of common lands (n), it is directed that the mines belonging to the lord may be reserved to him-in the regulated pastures, and in the allotted lands may become the property of the owners. When the mines are held distinct and separate from the surface they are not to be affected by the act or the inclosure, and the rights of existing lessees are reserved. By a still later statute, 22 & 23 Vict. c. 43, it is enacted, that when the mines are excepted, the provisional order of the inclosure commissioners shall specify whether the right to enter and work the mines after inclosure is to be reserved, -and whether any compensation is to be given for damage to the surface. The owners of the minerals and of the lands to be inclosed may agree on the mode of compensation, and the agreement shall form part of the award. When the right to the mines is reserved by any provisional order, with the right to work them, the third section gives specific powers for that purpose. In case compensation is to be paid by the owners collectively, it may be assessed in a summary way by any two justices of the peace. The amount is to be paid by a rate accord- ing to the value of the allotments, and may be levied by distress. An inclosure cannot be promoted without the assent of persons interested to the extent of, at least, two-thirds of the whole interest in the lands. In one case, the mines (m) Wakefield v. The Duke of (n) 8& 9 Vict. v. 118, ss. 96— Buccleugh, 36 L. J., Chane. 179. 98. 38 RIGHT OF PROPERTY. [CHAP. II. and minerals had been reserved to the lord on payment of compensation. There was valuable brick earth in the lands which could be worked by him on the surface, but the surface would be so far destroyed. It was held, that he was entitled to be included in the account of assents and dissents in respect of the value of the brick earth, and to participate in the division of the lands, in addition to his one-fifteenth share as owner of the soil (7). The injuries occasioned to inclosed lands by mining operations are discussed in a subsequent chapter. Section IV. CUSTOM AND PRESCRIPTION. WHEN mines form a distinct inheritance, and are not attached to the ownership of the Jands in which they are situate, or form part of the demesnes of a manor, a title to them may be acquired and lost in the same manner as to a common estate of freehold. But it has been seen that an ownership in mines and minerals may also be acquired by custom or prescription, and by persons in whose favour the law presumes no right at all. It may, therefore, be proper to consider in this place the general qualities of a custom and of a prescription with reference to our present subject, and upon what evidence they must depend. Prescription differs from custom in being annexed to a particular person, and in not being properly a local usage. It may exist either as a personal right, exercised by a man and his ancestors, or as attached to the full ownership in fee of an estate, and limited to such owners(o). It is therefore capable of being released; a custom cannot be discharged. In many respects, a custom and a prescrip- tion have common properties, and they have often been too much confounded in legal discussions. The existence of a custom is, at all times, a question to (~) Church v.The InclosureCom- 311. J., C. P., 201. missioners, 11 C. B., N. S., 664; (o) 1 Inst. 113 b. SECT. IV. | CUSTOM AND PRESCRIPTION. 39 be determined by a jury, and not by the judges, unless the same question has already been submitted to a jury, deter- mined, and entered upon the records of the same court ( p). But after the custom is found, it is for the court to pro- nounce upon its validity(y). A court of equity will, at the request of the parties, refer it to the Master to inquire and report concerning an alleged custom (r). A verdict in an action in favour of, or against customary commoners, and others claiming under the same right, is admissible in evidence (s). But such a verdict is not con- clusive, and, however ancient, will not avail against a recent and uniform usage of many years (é). A decree in chancery is also admissible (wz). A custom may be disproved by depositions made in a suit instituted against a former lord, by witnesses for a per- son claiming to be admitted under an alleged custom; and it is not material that the same custom should have been in controversy in the former suit(v). In general, the customs of one manor are not admissible to control or explain the customs of another manor (x); but there are exceptions to this rule. Evidence has been admitted to show that a custom may affect a whole district of manors which have sprung from some common origin, or have been subject to a corresponding train of circum- stances, by which their mutual relation to each other may be established (y). But this practice cannot prevail in (p) 1 Black. Com. 76; Mortimer v. Petifer, Cro. Jac. 302; Jewell v. Horwood, 1 Roll. Rep. 263; Edwin v. Thomas, 2 Vern. 75. (q) Bastard v. Smith, 1 Mood. & Rob. 129. (r) Edwards v. Fidel, 3 Madd. 239. (s) Reed v. Jackson, 1 East, 357; The City of London ». Clerke, Carth. 181; Bull. N. P. 233. (4) Biddulph v. Ather, 2 Wils. 23; Curtis v. Daniel, 10 East, 277. (x) Brown v. Rawlins, 7 East, 429. (v) Freeman v. Phillips, 4 Maul. & Sel. 486. See Cort v. Birkbeck, Doug. 219; Nichols v. Parker, 14 East, 831; Weeks v. Sparke, 1 Maul. & Sel. 679. (v) Somerset v. France, 1 Stra. °154; Fortes, 41; Dean and Chapter of Ely v. Warren, 2 Atk. 189; Roe v. Parker, 5 T. R. 30. (y) 1 Lord Hale de Jure Maris, pars prima, v.6; 1 Hargrave’s Law Tracts, 34. See Ruding v. Newell, 2 Stra. 957; Stanley v. White, 14 East, 338, 341; White v. Lisle, 4 40 RIGUT OF PROPERTY. [cHaP. II. opposition to evidence deduced from direct acts which may have been asserted in any particular manner, from which a variety of right may be inferred, and where the custom is not uniform. In the case of Rowe v. Brenton (z), it was offered in evidence that toll of copper had been received from other manors than that in which the locus in quo was situate. It was objected, that evidence of custom in one manor cannot be admitted to prove a custom in another, unless both at the time of legal memory were in possession of the same person, and formed part of the same district, and that the tenure was not the same throughout the several manors referred to, some being of the tenure of ancient demesne, and the others of a different tenure. It was admitted in reply, that it was difficult to say what was the tenure of the conventionary tenants in the manors; but it was urged, that in each of the manors ever since the 7 Edw. 3, and perhaps long before, there had been conventionary tenants; that in each there was an assession court held once in seven years, at which the conventionary tenants came and renewed their holdings; that, in all the manors, they took for seven years; and that this similarity affecting all the manors was sufficient to show that they formed one dis- trict under the same lord, where he had in all probability reserved throughout similar rights to himself in the grants made to the tenants bearing the same description. The evidence was admitted. Lord Tenterden, C. J., after pointing out the similarity of tenure, said it was very pe- culiar, and not known in any other part of the country, but certainly belonged to all those called free convention- aries in the district; must they not then, in fairness, in order to ascertain what were the relative rights of the lord, and those tenants, in one part of this district, inquire what were their rights in another? It appeared to him, that plain reason and common sense required it, without Madd. 224; Champian v. Atkinson, & C. 758; 3 Man. & Ry. 144, 229. 3 Keb. 90; King v. Ellis, ] Maul. & (z) 8 Barn. & C. 758. Sel. 662; Rowe v. Brenton, 8 Barn. SECT. IV. | CUSTOM AND PRESCRIPTION. 41 resorting to decided cases, or nice and subtle distinctions, as to whether the matter in dispute be in the nature of tenure or custom. That was not, properly speaking, a question of tenure, nor a question of custom, such as the course of descent attached to the tenure, but a question as to what the lord parted with to those who were called conventionary tenants. The other judges concurred in this opinion. We have before seen the application of this rule with respect to certain freehold lands bearing a distinct desig- nation, and liable to a custom pervading an ascertained district within the manor (a). When commons have been inclosed under an act of parliament, a custom to work mines without leaving sup- port to the surface cannot be established against one owner by proving specific acts in the lands of another owner (0). The customs of one manor cannot prove those of another manor, as both being in the same parish and in the same leet, even when one manor is held of another manor by subinfeudation, unless it were shown that the subinfeudation occurred between the time of legal me- mory (Richard I.) and the Statute of Quia Emptores, or very shortly before that time(c). It was observed by Lord Abinger, C. B., that it was the custom of the crown, in very old times, to declare of which manor another manor should be held, but that gave no identity of custom ; that in late times crown manors had been granted to be held of the manor of East Greenwich; that in the border manors of the North of England, there was’ a particular kind of tenure called tenant right, that passed by lease and release, and had peculiar customs; that, it being ad- mitted, that in these manors all the tenants hold under the (a) Barnes v. Mawson, 1 Maul. (c) Marquis of Anglesea v. Lord & Sel. 77. See Sect. 1. Hatherton, 10 M. & W. 218; 12 L. (b) Blackett o. Bradley, 31 L. J., J., N.S., Exch. 57. Q. B. 65; 1 Best & S. 140. 42 RIGHT OF PROPERTY. [cHap. II. same right, if it happened that in one particular manor no example could be produced of what was the custom in a given case, it might be reasonable to show the general usage; and that another connexion which might admit of this kind of evidence occurred in the mining districts of Derbyshire and Cornwall, where particular customs pre- vailed. Alderson, B., said that the customs of manors were created by immemorial usage, and that there was no proof that the customs of the manor in question might not have originated after it parted from the other manor, if it ever belonged to that manor, and yet be beyond legal memory. Rolfe, B., considered that the cases cited in favour of the reception of the evidence were only ana- logous to proving that in certain places the tenure of Borough English or of gavelkind prevailed, and then in- quiring into the customs of those tenures in other manors. In the same case it was also held, that a deed made by certain copyholders in 1605, and which purported to as- certain and agree upon the customs, and in which the lord for a valuable consideration ratified the customs, so far as they related to specified tenements, and also a decree in chancery confirming the agreement, were admissible on the part of the lord to negative a custom on the part of the copyholders to take the minerals, which were not mentioned in those documents. In a case of customary freehold lands, a customary or inquisition of the customs of the manor was produced, which appeared to have been prepared about the reign of Edw. VI. The only paragraph relating to minerals was a power for the tenants to dig stone, coals and marle, as estovers, for their own use—which was construed to be confined to the waste lands, and not to apply to the an- cieht lands. There was also a decree in 1578, after the inquisition, which settled some disputes as to the right of working coal in the wastes, but was silent as to coal in the ancient lands. In support of the right of the tenant to work coal on these lands, it was shown, that coal had SECT. Iv. ] CUSTOM AND PRESCRIPTION. 43 been worked by tenants in some particular tenements, but not in those of the present claimant, for 110 years. There was proof of the surrender of the surface distinct from the mines, of license from the lords by way of lease, of a surrender of the lease, of a surrender of the mines, and of actual working under that surrender—also, of coal pits having been worked in certain other ancient inclo- sures. It was held, on the authority of the case last cited, that, though there might be good evidence of a grant from the lord in respect of particular tenements, no general custom could be established in contravention of the manorial inquisition, and that the customary tenant had not shown any right to work coal in his ancient lands (2). It was objected, in the above case, that it was incon- sistent that the tenants should have less right to estovers on their own inclosed land than on the wastes which be- longed to the lord. It was held, that such inconsistencies existed in most cases of estovers, and might originate in the unwillingness of the lord to have the land devoted to cultivation disturbed by open workings. Reputation alone is not sufficient to establish a cus- tom(e), much less to repel a presumption of law. A right to mines, therefore, founded on custom, must be evidenced by proper documents, or by undisputed and notorious acts of ownership. The latter kind of evidence is always the most satisfactory, and is capable of creating a title at com- plete variance with documentary evidence. The produc- tion of grants, leases, and licenses, unaccompanied with evidence of actual usage, will be entitled to little weight(f). But in the absence of any recent acts of proprietorship, (d) Portland (Duke of) v. Hill, 248; Corkman». Mather, 1 Barnard. 85 L. J., Chane. 439. 14, | (e) Weeks v. Sparke, 1 Maul. & (f) Rowe v. Brenton, Halc. Rep., Sel. 690; Morewood v. Wood, 14 per Parke, J.; Brown v. Rawlins, 7 East, 330; Doe d.Fosterandanother East, 409. v. Sisson, 12 East, 62; Bull. N. P. 44 RIGHT OF PROPERTY. [OHAP. II. such documents may often be valuable as containing evi- dence of former acts. Entries of presentment in the books of a manor are not evidence of acts of ownership on the part of the lord (g), nor, it is presumed, on the part of the tenants. The court rolls of a manor are considered as evidence for the benefit of both the lord and the tenants(h). But they are only evidence for those parties, and not for or against strangers (i). Court rolls are not, however, strictly records, and, therefore, the courts will admit an averment of any error in them (j). Copies of court rolls, under the hand of the steward, and examined copies, sworn to be true, are also admissible(k). Entries of the steward, above thirty years old, need not be verified by proof of handwriting, and of death (J). A copyholder, by indorse- ment of his name on the record, under 3 & 4 Will. 4, c. 42, ss. 26, 27, is a competent witness for proving a custom to work stone within the manor (m). In the case of Rowe v. Brenton (n), it was held, that, on account of the interest of the crown in the Duchy of Cornwall, all acts which affect the possessions or revenues. of the duchy are to be considered as public acts. It was allowed to give in evidence a caption of seisin to the use of the Duke of Cornwall by persons assigned to do the same by his letters patent, and also the counterpart enrol- ment of a lease by the Duke, without evidence of the loss (g) Irwinv.Simpson, 7 Bro. P.C. 317. (hk) Warriner v. Giles, 2 Stra. 955; Humble v. Hunt, 1 Holt, 601; Love v. Bentley, 11 Mod. 134; Parrott v. Palmer, 3 M. & K. 638. (i) Att.-Gen. v. Lord Hotham, 1 Turn, 217. (7) Snow v. Cutler, 1 Keb. 567; Brend v. Brend, Fin. Rep. 254; Burgess and Foster’s case, 1 Ley. 289; 4 Leo. 215; Hill». Wigzett, 2 Vern. 517; Doe d. Priestly v. Calloway, 6 Barn. & C. 484; 9 Dowl. & R. 518. (k) Snow »v. Cutler, supra; Lee v. Boothby, 1 Keb. 720; Chance ». Dod, 2 Barn. 406; Street v. Roper, 12 Vin. 214; Rowe v. Brenton, 3 Man. & R. 296. (2) Wynne v. Tyrwhitt, 4 Barn. & Ald. 376. (m) Hoyle ». Coupe, 9 M. & W. 450; 11 L.J., N.S., Exch. 258. (v}) § Barn. & C. 737, SECT. iv.] | CUSTOM AND PRESCRIPTION. 45 of the original. There was also admitted an extent of crown lands found in the proper office, purporting to have been taken by a steward of the King’s lands, following in its construction the directions of the stat. 4 Edw. 1, and which was presumed to have been taken under competent authority, although the document was not signed, and did not contain any statement of the authority by which it was taken, and no commission was found. There were also received the answers of tenants to interrogatories put to them at an assession court, 1 Eliz., without producing the interrogatories, which had been searched for but could not be found. But in the case of the Duke of Beaufort v. Smith (0), a book from the custody of the plaintiff, pur- porting to be a survey of the year 1650, after the manor had been granted to Oliver Cromwell, taken under a com- mission given by him, was rejected as being neither a public document nor evidence of reputation ( p). It has been held that a book in which copies were made of counterparts of leases granted by the Bishop of Durham, which was kept in the office of the Bishop’s auditor, was a public muniment, and may be received in evidence to sustain the claims of a lessee, the counterpart being lost, and the original not produced (9). In the case of the Bishop of Winchester v. Knight (r), Lord Chancellor Cowper is reported to have observed that a custom empowering the tenants to dispose of one sort of mineral, as coals, might be an evidence of their right to dispose of another sort of minerals, as lead out of mines. This evidence may certainly be conclusive in the absence of other evidence, and under such circumstances it might (0) 4 Exch. 450; 19 L.J.,N.S., per Wood, B. See Lord Pomfret v. Exch. 97. Smith, 6 Bro. P. C. 440; Outram v. (p) S.C. Smith». Duke of Beau- Morewood, 5 T. R. 121; 3 East, fort, 138 L, J., N.S., C. C. 838; 1 346. Phil. 209; 1 Hare, 507. (r) 1 P. Wms. 406. ‘(q) Humble v. Hunt, 1 Holt, 602, 46 RIGHT OF PROPERTY. [| CHAP. II. prove of great importance. But its effect upon the right to the other minerals might be entirely destroyed by proof of acts of ownership having been asserted over any of the latter kinds of minerals. There may, in fact, be two cus- toms, or indeed as many customs as there are kinds of minerals found in the lands. The voice of custom is capable, not only of determining the general right of pro- perty in minerals, but of establishing different ownerships in different substances. ‘This was decided in a case in which it was contended, that the undisputed right of the lord to the tin mines under all the lands of the manor was decisive to show that he was entitled to all other minerals. Lord Ellenborough, in delivering judgment, asked why there might not be two customs, one for the lord of the manor to have the tin, and another for the tenants to have the copper under their estates and the waste in question; and observed, that the usage which established the right of the lord to have the one, would also establish the right of the tenants to have the other (s). Where there are different customs, regulating the owner- ship of different kinds of minerals, it must, of course, be concluded that the general right to the other minerals, to which no distinct claim has been established, will remain vested in the person presumptively entitled to the whole. A single instance may, under some circumstances, prove the existence of a custom (¢). One undisturbed act, said Lord Ellenborough, in another case, does not make a custom, but it will be evidence of a custom (u). It must, however, be sufficiently clear that such a rule cannot be applicable to mines. There must be a notorious succession of acts committed with the knowledge of the general neighbourhood, and without interruption from the (s) Curtis v. Daniel, 10 East, 273. (u) Roe d. Bennett v. Jeffrey, 2 (¢) Doe d. Mason v, Mason, 8 Maul. & Sel. 92, Wils. 63, SECT. Iv.] CUSTOM AND PRESCRIPTION. 47 parties interested (x). A solitary act may be committed in private, or it may be disowned, and the party committing or authorizing it may think proper to desist from asserting his pretensions. When a custom is set forth generally, and it be proved that there are exceptions, the variance will be fatal (y). A custom, when derogatory from the common law, must be strictly construed (z). There has been much difference of opinion upon the admissibility of hearsay evidence in those cases of pre- scription, which affect only private rights. In the case of Morewood v. Wood (a), where the defendant claimed the right, as incident to his estate, to work stone in the waste of the lord, general evidence of reputation was produced at the trial. The Court of King’s Bench was afterwards equally divided on the question of reception. Three of the judges thought such evidence could be received as proof of a particular custom; but the modern decisions are against the reception of such evidence (8). A prescription must be exercised reasonably, and must also be certain. Thus, an indefinite claim to take clay from a close for making bricks at a brick kiln at all times and seasons has been held to be unreasonable and invalid (c). In another case, an action of trespass was brought for taking away sand from a close to which it had been drifted from the sea shore. There was a plea of custom, and also a plea of prescription. The former alleged a right in the inhabitants for the time being occupying lands in adjoining parishes to take the sand from the close for manuring their lands. It was held, that the claim as a custom was too (2) Curtis ». Daniel, supra; but & C. 663; White v. Lisle, 4 Madd. sce 38 & 4 Will. 4, c.71,s. 4 214. See Phillips on Evidence, vol. (y) Griffin v. Blandford, Cowp.62. 1, p. 242. (z) Bac. Abr. Customs, F. (c) Clayton». Corby, 5 Q. B. 415; (a) 14 East, 327. 14L, J., N.S., Q. B. 364. (b) Richards v. Basset, 10 Barn. 48 RIGIT OF PROPERTY. [CHAP. IL vague, and also that it was void for claiming a profit in the lands of another, which can only be made by pre- scription (d). The sand was considered to be part of the soil, and to be inseparable from it. It was also held, that the evidence for a custom is not evidence for a prescription, nor vice versd. ‘The evidence in support of the prescrip- tion was not sufficient to gain a verdict for the defendant, and the court refused to grant a new trial. It was ques- tioned whether private prescription and customary right could exist together with respect to the same matter (e). In mining cases, any permanent injury to the surface, however extensive, may be committed, if it be necessary for the proper enjoyment of the right that is claimed, and that right is proved by grant or usage to the requisite extent. For prescription presumes a grant, or an excep- tion of the nature of a grant, and whatever may be granted may be also claimed by prescription (f). In a case relating to the Forest of Dean, the free miners claimed the right to grant licenses for working stone quar- ries in the commons of the forest. The decision rested on other grounds(g). But it was held by Byles, J., in assisting Wood, V. C., that the claim could not exist by custom, as it was a profit d@ prendre, and not an case- ment (h). It was also held, that it could not exist by pre- scription; for a claim to carry away the soil of another without limit tended to the destruction of the herbage, and was unreasonable, and also uncertain (2). This case, like some others, must depend on the vague- ness and uncertainty of the claim. When a claim does not extend to the whole subject matter, but only to a partici- (d) See Code Nap. art. 686; Inst, (g) See Chap. XVI. lib. 2, t. 8, s. 2. (k) Gateward’s Case, 6 Rep. 59. (e) Blewett v. Tregonning, 8 Ad. (i) The Att.-Gen. v. Mathias, 27 & El. 554. L. J., Chance. 761. See Dyce » (f) Rogers v. Taylor, 1 Hurl. & Hay, 1 Macq. 305. See also Con- N. 706; 26 L. J., Exch. 205; Car. stable v. Nicholson, as to highway lyon v. Lovering, 26 L. J., Exch, repairs, infra. 251; 1 Hurl. & N. 784, SECT. Iv. ] CUSTOM AND PRESCRIPTION. 49 pation of profit, it must be sufficiently defined, and must be confined within reasonable limits. But such cases cannot apply to rights embracing the whole of certain minerals in lands, with full powers to work them. In such instances, it can only be necessary to show that any specific spoil of ground is inseparable from the proper enjoyment of the rights. Till recently, legal proof of a custom or prescription was demanded from the time of legal memory, that is, the coronation of Richard the First. The practice of the courts provided a remedy for this injurious rule, and it was held, that proof of undisturbed enjoyment, as far back as living witnesses could speak, raised a presumption of an enjoyment from the time fixed by law (A). An uncon- tradicted usage of twenty years has been held to prove the existence of an immemorial custom (1). In the case of Curtis v. Daniel (m), it was proved on the part of the defendants, that, for between twenty and thirty years, they had made sets of the copper mines, and that these mines had been worked to a considerable extent, and in a manner which was notorious to the whole neighbour- hood, to the plaintiff’s agents, and to the former proprietors of the plaintiff’s estate ; that dues to the amount of above 7001. had been paid to the tenants in respect of some lands, andas much more in respect of others; and that the value of the ore raised was ten times the amount of the dues; on this evidence a verdict was found for the defendants, and a new trial was refused. The court observed, there had been an adverse possession for above twenty years, and the case was properly left to the jury. But a right, claimed by custom or prescription, was subject to be disproved by showing, that it did not or could not exist at any given point of time since the commence- (ie) Teuckhart v. Cooper, 7 Car. (1) Rex ». Jolliffe, 2 Barn. & C. & P.119; Jenkins». Harvey,1Cr. 654; 3D. & R. 240. M. & R.877; 2Cr. M. & R. 393; (m) Supra, Sect. 3. 1 Gale, 23. B. E 50 RIGHT OF PROPERTY. [CHAP. II. ment of legal memory. Thus, it might have been shown, that at some earlier period the mines had been regularly and uniformly worked by other persons than those seeking to establish a customary right. This proof would have defeated the custom of later years. This mischief gave rise to the expedient of supposing the existence of a grant which had been lost, and which was pleaded to have been made by some person in possession of the legal right. Thus, even a grant was presumed against the crown after 100 years (7). But in all cases, it was still competent to prove that the supposed grant could not have been made in the manner stated in the plea. The law on this subject has been much altered by the Act for shortening the time of Prescription (0). It is enacted, that no claim which may be lawfully made at the common law, by custom, prescription or grant, to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of the crown, or parcel of the Duchies of Lancaster or Cornwall, or of any ecclesi- astical or lay person, or body corporate (except the matters afterwards specially provided for, and except tithes, rents and services), shall, when such right, profit or benefit shall have been actually taken and enjoyed by any person claim- ing right thereto without interruption for the full period of thirty years, be defeated or destroyed only by showing that such right, profit or benefit was first taken or enjoyed at any time prior to such period of thirty years, but never- theless such claim may be defeated in any other way by which the same was then liable to be defeated: and when such right, profit or benefit shall have been so taken and enjoyed for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. (x) Mayor of Kingston ». Horner, (0) 2 & 3 Will. 4, c 71. Cowp. 102. SECT. Iv.] | CUSTOM AND PRESCRIPTION. 51 Thus, a right to mines as a separate inheritance may be established after a less period than that required for a mere right to work them. This statute, which is of much importance in many other respects to mining owners, will be more fully discussed in another chapter. There are several districts in England in which peculiar customs prevail with respect to the right to mines and the mode of working them. These local customs exist chiefly in Cornwall, Devonshire and Derbyshire, and will be also noticed in an ensuing chapter. SECTION V. MANORS AND REPUTED MANORS. As the subject of manors is closely connected with the right to mines, a few words on that subject may be here introduced. In mountainous countries, the boundaries of manors are often open to much dispute. These bounds are sometimes defined in old grants by the natural descent of “‘ Heaven water.” The summit of a line of hills may be in some places a black morass, subject also to actual changes of level, where it may be doubtful, for a long space, which way the water may be said to flow, or if it can be said to flow at all. In such cases, where there may be mines, it is ad- visible to prevent litigation, by setting up boundary stones through the debateable land. But questions of more importance arise with respect to the division of manors and the lands alleged to be com- prised in them. It is well known that, previous to the Statute of Quia Emptores (p), the free tenants of a manor (p) 18 Edw. 1, Westm. 3. E2 52 RIGHT OF PROPERTY. [CHAP. II. could alienate their lands in fee, to be held of themselves as mesne lords, instead of the superior lord. This was of course the creation of new manors, subject to the general allegiance due to the chief lord, but with jurisdiction and seignorial rights over the inferior tenants. This practice was abolished by that statute as to ordinary manors, and by subsequent statutes with respect to manors held in capite from the crown (q). Under these provisions there could be no subinfeudations of crown manors, that is, no new manors, since the accession of King Edward the First, and none of other manors since the passing of the Statute of Quia Emptores. A manor, though admitted to be itself held of some superior manor or honour, has a proper legal existence, if it can be shown to have been so separated before the above periods. The royalties, which include the minerals, would, of course, belong to the new manor, and would thence- forth pass with it, unless special custom should have es- tablished contrary rights either in the copyhold or free- hold tenants, or in the chief lord. But when a manor or reputed manor cannot claim existence before the above periods, the rights of the chief lord must prevail, if the lands can be shown to form part of his present seignory. When manorial rights are properly preserved by the holding of courts, and by the continuance of other legal incidents, the tenure of lands and their present condition may be generally well determined. But when the mano- rial rights have fallen into disuse, the copyhold or cus- tomary lands may have become freehold, and these, together with the original freehold lands, may have ceased to belong to any manor at all, under the Statutes of Limi- tation. No lands can become allodial, but they may be held in free tenure directly from the crown. But even in this condition the right to the mines may be claimed by special custom (7). (q) 17 Edw. 2, st. 1, c. 6, and 34 (r) Barnes v. Mawson, 1 M.& 8. Edw. 3, c. 15. 84, SECT. V. | MANORS AND REPUTED MANORS. 53 On the other hand, no new copyhold tenure can now be created, except in some special and anomalous case, which need not here be noticed. For the soul of this tenure is custom, and a custom must have existed from the time of legal memory. Although there can be no new tenure, the demesnes of a manor, as in the case of commons, may still be alienated as new copyhold lands; for this operation does not imply the creation of any new custom. If the services of a manor are severed from its demesnes or merged in them, the manor is lost for ever; for service is the essence of a manor (s). It is often said, a manor is lost if there are not two free tenants to hold a court baron. It is not the loss of the court, but the consequent extinc- tion of the services, which destroys the manor. For a court baron is the necessary incident of a manor, and at- tracts the services (¢). On the other hand, the right to hold a court baron may exist, without the right of lord- ship over the manor; for such a right may exist by pre- scription in other persons. The existence of a manor may be proved by the original grant, by inquisitions, by court rolls, and other documen- tary evidence, and by positive acts of dominion. The mention of a manor in a deed only binds the parties to it and the claimants under them, but it is evidence of repu- tation. Reputation alone is admissible. But it will be left to the jury to decide generally on all the evidence. When the demesnes of a manor are absolutely severed from the services, and it is lost as a legal manor, it cannot be restored to its original condition. If it has been sub- ject merely to long disuse, the lapse of time will prevent its restoration. Neither the Statute of Limitations of 32 Hen. 8, c. 8, nor that of 21 James 1, c. 16, appear to ‘apply to homage, fealty and other manorial services (u), but they are reached by the recent statute of 2 & 3 Will. 4, (s) Sir Moyle Finch’s case, 6 Rep. (u) See 2 Inst. 95, 96; Beville’s 64; 2 Roll. Ab. 122. case, 4 Co. Rep. 8. (t) Watkins on Cop. 1, 14. 54 RIGHT OF PROPERTY. [cHaP. II. c. 27. Yet, although lost as a legal manor, it may exist as a reputed manor, or a manor held in gross. Thusa court baron may be held if two freeholders can be pro- cured ; and the lord may recover arrears of quit rent, and his general right to the soil against the acts of strangers ; subject to the provisions of the last Statute of Limitations. Even where there are no courts, the right to the royalties may be successfully asserted (x). (x) Soane v. Ireland, 10 East, 259. CHAPTER III. ROYAL MINES. a ACCORDING to the law of England, the only mines which are termed royal, and which are the exclusive property of the crown, are mines of silver and gold(a). This pro- perty is so peculiarly a branch of the royal prerogative, that it has been said, that though the king grant lands in which mines are, and all mines in them, yet royal mines will not pass by so general a description (0). This prerogative is stated to have originated in the king’s right of coinage, in order to supply him with mate- rials(c). It may be observed, however, that the right of coinage in the earlier periods of European society was not always exclusively exercised by the crown; that the same reason might apply to other metals, as copper and tin; and that in those rude times the prerogative was perhaps as likely to have its origin in the circumstance of those rare and beautiful metals having always been among the most cherished objects of ambition, and which were, therefore, appropriated to the use of the crown, like the diamonds of India, in order to sustain the splendour and dignity of its rank, as well as for its revenue (I). (a) 2 Inst. 577. (b) Plowd. 336. (c) 1 Black. Com, 294. (I) In Plowden’s Report it is stated, that this right was considered by the Solicitor-General of that day to exist in respect of the excellency of the thing, that the common law appropriated everything to the persons whom it best suits, as common and trivial things to the common people, and, be- cause gold and silver were most excellent things, the law had appointed them to the person who is most excellent, and that was the king. Plowden himself propounds an alchemical theory on the origin and transmutation of all metals, which was no doubt designed to throw light upon the subject, but which, it must be admitted, leaves the law of the case in the same condition as that of the metals. Plowd. 338, 339, * 56 [ CHAP. III. ROYAL MINES. It is not improbable that the royal right arose in Roman times, and was transmitted to successive sovereigns. The Romans usually allowed the customs of a conquered country to prevail with respect to mines. Thus, in Spain, they worked the silver mines, as the Carthaginians had done before them, and in Macedon, where the State had pre- viously monopolized the gold and silver mines, and left those of iron and copper open for private enterprise, the same rights were established (d). But it does not appear that either gold or silver were found in Britain in the time of Julius Cesar, who only mentions tin, copper and iron as being produced. It is expressly stated by Cicero that Britain afforded not even a scruple of gold or silver (e). This opinion was soon disproved; for the lead mines were extensively worked in the time of Augustus, both for the lead and the silver in it, and there was soon afterwards a great silver coinage in Britain. The subsequent assertion of Strabo and Tacitus, that Britain produced both silver and gold, was certainly true with respect to silver, and might be literally exact with respect to gold(f). The richest silver lead mines were probably in Wales, particu- larly in Cardiganshire. But the Cumberland “ silver mine” (g) was worked as a royal mine probably to the time of Elizabeth (A). Hitherto there has been no British gold mine, although the yearly produce of this metal has sometimes been of great value. Whatever reason or origin may be assigned for this right of the crown, and of whatever value that right may be, it has been long decided, not only that all mines of gold and silver within the realm, though in the lands of (d) See Merivale’s Hist. of Rome, vol. 3, p. 544, and the authorities there cited. (e) Epist. ad Att. iv. 16; Ep. ad Treb. 8. (f) Tac. Vit. Agric. (g) Northumberland Pipe Roll, A.D. 1226. Aldeneston (now Alston), afterwards specified in the royal grants, is mentioned in the Pipe Roll as the méne of Carlisle. (h) See 2 Inst. 1290. The miners had special privileges, and the jus- tices of assize went there in their circuit. See Hodgson’s Northum- berland, vol. 3, part 2, cc. 45, 54, CHAP, III. | ROYAL MINES. 57 subjects, belong exclusively to the crown by prerogative, but that this right is also accompanied with full liberty to dig and carry away the ores, and with all other such incidents thereto as are necessary to be used for getting them (2). This right of entry was disputed by Lord Hardwicke in a case where there was a grant from the crown of lands, with a reservation of all royal mines, but not of a right of entry. He was of opinion that there was by the terms of the grant no such power in the crown, and that by the royal prerogative of mines, the crown had even no such power; for it would be very prejudicial if the crown could enter into a subject’s lands or grant a license to work the mines; but that when they were once opened, it could restrain the owner of the soil from working them, and could either work them itself or grant a license for others to work them (7). This doctrine was, however, declared by Sir W. Grant, M. R. (2), to be liable to considerable doubt, as being in- consistent with the resolutions of the judges in the case just cited from Plowden. It may, therefore, be assumed, that the latter case, which was solemnly decided by all the twelve judges, has never been overruled; and Lord Hardwicke’s case was decided also upon other grounds— viz., upon there not being a sufficient probability of there being royal mines at all, to disturb the possession of a purchaser (/). This royal right seems also to have been accompanied with a right to take timber for the use of the mines. In a case relating to the silver mines of Aldeneston (Alston), the landowners did not deny this right, but alleged there was no right to sell the timber (m). It seems formerly to have been a matter of considerable (i) The Queen and the Earl of (%) Seaman v. Vaudrey, 16 Ves. Northumberland, Plowd. 310, 836. 393. See Dyer, 88 a. (2) See Chap. XII. (j) Lyddal v. Weston, 2 Atk. 20, -(m) 2 Inst. 578; 18 Edw. 1. 58 ROYAL MINES. [ CHAP, III. dispute, as to what constituted a royal mine. By some it was considered to be a principle of common law, that, if any gold or silver was found in metals of a baser nature, that was sufficient to bring the mine within the definition of a royal mine; while by others a mine was not to be deemed royal unless the quantity of gold or silver ex- ceeded in value that of the other metal with which it was mixed. The latter opinion was adopted by three of the judges, viz., Harper, Southcot, and Weston, in the case of the Queen and the Earl of Northumberland (7), although they agreed in thinking that, as the defendant, in this case, had confessed the production of some royal ore, he was concluded by his not having proceeded to show the relative difference of value, and that the mine must there- fore be presumed to be royal. But all the other nine judges were of opinion that the existence of any portion of silver or gold was sufficient to constitute a royal mine. Plowden himself contends, that if the royal metals should bear the expenses of extraction, the whole should belong to the crown, and if otherwise, to the owners of the base metals. This decision occurred in the time of Queen Elizabeth, when the prerogative of the crown was perhaps at its greatest height, and the opinion of the nine judges does not appear to have gained the acquiescence of more recent lawyers. In 1640, the opinion of fifteen leading counsel, amongst whom are the names of Glanvil, Herbert, Grimston, and Maynard, was taken upon the subject. These gentlemen were all of opinion, that, although the gold or silver contained in the base metal of a mine in the lands of a subject be of less value than the base metal, yet if the gold or silver countervail the charge of refining it, or be of more worth than the base metal spent in re- fining it, this is a mine royal, and as well the base metal as the gold and silver in it belong to the prerogative of the crown (0). It may be inferred, from this opinion, that if (x) Plowd. 336. (0) Heton’s Account of Mines, p. 21. CHAP. I11. | ROYAL MINES. 59 the gold or silver did not repay the charges of separation, those metals were not considered as belonging to the crown. But it would appear, that if the royal metals had been found in a pure state, and unmixed with the ores of any baser metal, or if the mixture had been merely me- chanical, and not chemical, and the precious metals could have been extracted without necessarily submitting the whole mass to the ordinary smelting processes used in the reduction of the inferior metals, the mine would have been considered a royal mine, without reference to the cost of either production or separation. Silver mines are fre- quently mentioned as existing in England, but it is very questionable whether gold or silver have ever been found in a pure state in England, though small pieces have sometimes been discovered in Scotland (p) and in Ireland. Several pounds of gold have lately been procured from the lead mines of Dolgelly, North Wales, where the vein is described as being interlaced with strings of gold. All the silver said to have been produced in England was most probably extracted from lead, as at present (¢). In the time of Queen Elizabeth, a society was esta- blished on the part of the crown for the management of royal mines, most probably in consequence of the decision reported by Plowden. Several rules were framed for its guidance, particularly in 1670. The opinion of the fifteen counsel before mentioned seems to have been generally adopted (r). But considerable difference of opinion still prevailed in many instances with respect to the actual fact of the royal metals bearing the charges of refinement. The royal refiners and assayers became either less skilful or dishonest. At length, the great case of Sir Carbery (p) Camd. Britt.915, 923; Boyle — ensis, 59; Heton’s Account of Mines, on Ores, 182; Martin’s Scotland, 2, 5. 339. (r) See Sir John Pettus’ Fodine (q) Pryce’s Mincralogia Cornubi- _Regales. 60 ROYAL MINES. [cHapP. III. Price occurred (s). This case produced repeated trials at bar, and at nisi prius, and occasioned very considerable excitement in almost all parts of the kingdom. Sir C. Price succeeded at last in effectually precluding the claims of the crown, but the spirit of mining adventure threatened to become extinct from the vexatious and uncertain state of the law. The right of entry in search of royal mines was oppressive in the extreme, for the clause of compen- sation inserted in the royal patents was usually disre- garded, and any mine, which might have been discovered at great expense, seemed liable to be claimed as a royal mine. Valuable mines were concealed, and there was universal distrust. Such a state of things called loudly for a legislative remedy (¢). This remedy was at last afforded. An act was passed, declaring that no mine of tin, copper, iron, or lead should thereafter be taken to be a royal mine, although gold or silver might be extracted out of the same (uw). This provision was considered insufficient, and another statute was soon afterwards passed (.r), intitled “ An Act to prevent Disputes and Controversies concerning Royal Mines,” in which it is recited, that many doubts and ques- tions had arisen upon the first statute, whereby great suits and troubles had arisen to many owners and proprietors of such mines. It was then enacted, that all owners or proprietors of any mines in England or Wales, wherein any ore was then, or thereafter should be discovered or wrought, and in which there was copper, tin, iron, or lead, should hold and enjoy the same mines and ore, notwithstanding that such mines or ore should be pretended or claimed to be royal mines. The third section, however, gives the crown, or any (s) See Sir Humphrey Mack- (t) Heton, 27. worth's Mine Adventure Expedient, (uw) 1 Will. & Mary, c. 30. p. 13. (x) 5 Will. & Mary, c. 6. CHAP. Ii. | ROYAL MINES. 61 persons claiming royal mines under it, the right to pur- chase the ore of any such mines (other than tin ore in the counties of Devon and Cornwall), upon payment, within thirty days after the ore is raised and laid upon the banks of the mines, and before its removal from thence, but after being washed and made merchantable, of the following sums, and at the following rates:—For ore in which is copper, 162. per ton; for ore in which is tin, forty shillings per ton; for ore in which is iron, forty shillings per ton; for ore in which is lead, 9/. per ton; and in default of payment it is declared to be lawful for the owners or pro- prietors to sell the ore for their own use. It is provided by the fourth section, that nothing in the act should alter or make void the charters granted to the tinners of Devon and Cornwall, or any of their liberties, privileges or franchises, or the laws, customs or constitu- tions of the stannaries of Devon and Cornwall (y). It should be observed, in the first place, that the right of the crown to all mines of gold and silver, in which the ores of those metals are found, in connexion with any other substances than copper, tin, iron or lead, remains unaffected by these statutes, and that the presence of any of the four metals just mentioned would seem to be suffi- cient to protect the ore against the claims of the crown. The right of pre-emption, reserved to the crown, and the persons claiming under it, is limited to copper, iron and lead, and to tin found in any other places than in the counties of Devon and Cornwall. It might be contended that this right should extend equally to those metals specified in the act which contain no silver or gold at all, as to those which do actually con- tain them. But this construction must be considered to be excluded by the preamble and purpose of the act. Ores unmixed with any portion of gold or silver were undoubtedly the property of the subject before, and as the (y) See Chap. XV. 62 ROYAL MINES. [CHAP. III. statute was not intended to apply to those, the right of pre-emption cannot be held to extend to any ores but those which the crown might have pretended to claim. This act seems to have given universal satisfaction to all mining adventurers, and the society for the royal mines appears to have been effectually broken up by its salutary operation. It is stated by Sir W. Blackstone, that the crown pays no more for the royal metal than the value of the base metal in which it is supposed to be(z). This might cer- tainly be quite true at the time when the statute was passed. But the value of all the metals mentioned in the act has since often and materially varied. At present the price of almost all iron ores is under the sum fixed for pre-emption—2/, per ton. But it is quite possible for very rich and peculiar ores, like the red hematite, to reach a price considerably above the rate of pre-emption. The price of copper ore is also usually under the sum fixed by the act—16/. per ton; but the value of some copper ores now found in this country is much above that sum. In general, the sum fixed for tin ore would be greatly inadequate. It follows, therefore, that if it could be proved that any of the ores just mentioned contained any portion of gold or silver, the crown would have the right of pre-emption at a price which might still seriously affect the interests of the producer. Silver is not usually found in this country in union with any other metal but lead, though it has been found in Huel Alfred, in Gwinear, Cornwall, in green carbonate of copper, and in Huel Ann, in Phillack, Cornwall, with arsenical pyrites. Gold has been found in Wales, and in the iron pyrites of Wicklow, in Ireland, and Crossgill, in Cumberland, but in very small proportions. On this ac- count little fear need probably be apprehended of the crown being enabled to exercise its right. (z) 1 Black. Com, 295. CHAP. 111.] ROYAL MINES. 63 A considerable quantity of silver is extracted from lead ores; and the rate of pre-emption has been raised by a later statute (a), by which after reciting that im conse- quence of the lapse of time and change of circumstances, the former rate had been inadequate to the increased ex- pense of raising lead, it is enacted, that the rate shall thenceforth be 251. per ton. Since the passing of this act, the price of unsmelted lead has never been beyond the sum of 151 per ton; and even during the war with France, when the value of lead, like that of other metals, was extraordinarily high, it never reached the sum of 231. per ton. About the year 1807, the price closely ap- proached to that sum, but it is now considerably reduced. Lead adventurers have, therefore, at present, nothing to apprehend from the right of pre-emption. But the rate of pre-emption over all the metals ought to have been permanently fixed by reference to the market price of the day. In arbitrary reigns, the crown has claimed the right to other mines, as to the Yorkshire alum mines. It was held by all the judges in the reign of James the First, including Coke, that the crown could grant licenses for working saltpetre for gunpowder, in any lands of the subject, for the defence of the realm (6). But it is now useless to discuss claims of this kind. In Scotland, gold and silver belong to the proprietors of the soil, subject to the render of one-tenth of the value of the ores to the crown, free from all charges (c). (a) 55 Geo. 3, v. 184. (c) Erskine’s Inst.; Bell’s Princ. (b) 12 Coke's Rep. 12. of S. Law. 64 TUE RIGHT TO WORK MINES. [CHAP. Iv. CHAPTER IV. THE RIGHT TO WORK MINES. I. When severed from the Inheritance. II. Persons with limited and qualified Interests. III. Ecclesiastical Persons. —~— Section I. WHEN MINES ARE SEVERED FROM THE INHERITANCE. Ir will have appeared from the preceding pages, that a person may have an undisputed right of property in mines, and may yet have no power to avail himself of that right ; and again, that a person may have a distinct right of pos- session in mines, as part of his tenement, without bemg entitled to exert any act of ownership over them. Such, we have seen, is the condition of the lord and tenant, in the absence of special custom, with respect to mines in copyhold and customary lands(a). There are other persons who, from the limited nature of their inte- rests, or the peculiar quality of their estates, are subject to similar incapacities, and are not permitted to despoil the inheritance by working mines. It is unnecessary to say that when mines form part of the whole unsevered inheritance, an owner in fee simple possesses, in all freehold lands, an unrestricted right to work the mines in his estate. It remains, however, to be seen, in what cases the owner of mines is entitled to work them without the concurrence of the owner of the surface, when the property in mines forms a distinct inheritance and possession. (a) See Chap. II. SECT. I.] SEVERED FROM THE INHERITANCE. 65 Mines in this condition are held either by express grant or exception, or by virtue of acts of ownership which have produced an adverse possession against the owners of the surface. In the latter case, the full right to work has been established by the acts themselves. But in all cases it is a general rule of law that when anything is granted, all the means of attaining it and all the fruits and effects of it are also granted. Thus, by the grant of ground, a way to it is also granted, if there be no accustomed way. By a grant of trees there is also passed a power to cut them down and to take them away(b). In like manner, a grant of mines also gives the right to work them (c), unless there is some positive restraint in the language of the grant itself. The severance of mines is usually effected by exceptions in deeds of assurance, which transfer the freehold in the surface and reserve the mines. An exception is distin- guished from a reservation by its being part of the thing granted and in existence at the time of the grant, while the latter is a right of new creation arising out of the sub- ject of grant (d). They are different in legal effect, but in their creation “ there is no magic in words,” and, if the meaning is clear, either of the above expressions will operate for the purpose designed (e). They are also con- strued exactly in the same way as actual grants. In either case, the law favours their construction by giving them all proper and necessary incidents (f). Mam verba debent intelligt cum effectu ut res magis valeat quam pereat. The right to work mines is so inseparable from the grant of them, that it has been expressly decided, not only that the right to enter and work mines is necessarily inci- (b) Shep. Touch. 89; 11Co. 52a, Jas v. Lock, 1 Ad. & El. 744, (c) Ibid.; Simpson v. Tellwright, (e) Co, Litt. 148 a; Dyer, 19 a, 2 Lutw. 1247. pl. 110. (d) Shep. Touch. 80; Fancy ». (f) Shep. Touch. 100; Bac. Ab., Scott, 2M. & R. 335; Doed.Doug- Grants (I), 4. B. : F 66 RIGHT TO WORK MINES. [CHAP. IV. dent to a grant of mines, without any express authority for that purpose; but that this power cannot be restrained by a special power given in the affirmative, which may authorize more acts than would be implied by law, but which will in no wise exclude the full operation of law (9). In that case, Sir Thomas Danby, a former owner of the demesne lands of a manor, had enfeoffed the Earl of Sus- sex of several closes, excepting and reserving unto himself and his heirs all the coals in the Jands and premises, to- gether with free liberty for Sir Thomas and his heirs at all times thereafter during the time that the said Sir Thomas and his heirs should continue owners and proprietors of the demesne lands of Farnley, to sink and dig pits, or other- wise to get coals in the said land and premises, and to sell and carry away the same with carts and carriages, or otherwise to dispose of the same coals at his and their will and pleasure, making reasonable satisfaction for damages. Afterwards the manor and demesne lands of Farnley were sold by the Danby family to the defendant. An action of trespass was brought by the plaintiff, who was then owner of the lands in question, against the defendent, for entering and working for coal. On de- murtrer, it was argued for the plaintiff, that the heirs of Sir Thomas Danby having ceased to be owners and pro- prietors of the demesne lands of Farnley, the defendant had no right to enter and dig pits. It was admitted, that if there had been a general exception of the coal to the feoffor and his heirs, the law would imply a right to get it co-extensive with the reservation; but it was contended that the express liberty to take the coal limited the dura- tion of the privilege by mutual consent and contract. Bayley, J., in delivering the judgment of the Court of King’s Bench, took an elaborate view of the subject, and (g) Earl of Cardigan », Armitage, 2 Barn. & C.197; 3D. & R. 414 SECT. 1] SEVERED FROM THE INHERITANCE. 67 said, that an exception was always taken most strongly against the feoffor or grantor, and that when anything is excepted, all things that depend upon it, and are necessary for obtaining it, are excepted also. The coals were part of the thing granted, and in esse at the time. The con- sequence, therefore, was, that the property in the coals was never out of Sir Thomas Danby the feoffor, and would have remained in him and his heirs as before, without words of inheritance in the exception, and a right, as in- cident, to get the coals, and to do all things necessary for the obtaining of them, would have been excepted also. The express liberty was introduced by the words “to- gether with,” as if the intention were to increase what had preceded, not to diminish; and he took it to be a general rule, that words tending to enlarge should not, unless the intention was very plain, be taken to restrain(h). It might be taken as clear, that an express liberty did not always control ‘what would otherwise exist, especially if the express liberty went beyond what would be implied. To give it a controlling power, the intention that it should have that effect, must be very plain (7). The special power had its necessary use, for it went beyond the inci- dental power which the law wouldimply. The incidental power would warrant nothing beyond what was strictly necessary for the convenient working of the coals; it would allow no use of the surface; no deposit upon it to a greater extent or for a longer duration than should be necessary; no attendance upon the land of unnecessary persons. The express power gave great latitude in these respects. It had therefore its necessary use, though it worked nothing in restraint of the incidental right which Sir T. D. and his heirs would otherwise have had (4). (k) Winter». Loveden, Ld.Raym. 168; and see 8 Ass. 10; Dy. 19. 267. (7) Sug. Law of Real Prop. 88. (i) Stukeley v. Butler, Hobart, F2 68 RIGHT TO WORK MINES. [CHAapP. Iv. This decision was afterwards affirmed in the House of Lords (I). Thus, a grant or exception uncontrolled by express words of restriction or limitation will give all the powers which are by law considered to be incident to such a grant for the full and necessary enjoyment of it. Any special power, as in the above case, will be limited in its duration and consequences by the particular expressions which confer it. The nature and extent of these implied powers, and of others arising from express stipulation, will be noticed in subsequent parts of the treatise. In the case of an exception in a deed of conveyance, a vendor had reserved “all mines and seams of coal, and other mines, metals or minerals.” The right to work was given in terms which appeared to apply almost exclusively to mining, as distinguished from open work. On the opening of a freestone quarry in the lands, it was held, that it was intended only to reserve what was usually got by mining in the district at the time of the execution of the deed, and therefore that freestone was not within the exception, and that, at any rate, it could only be worked by mining operations. It was held, on appeal, that the words could not be controlled by the custom of the country, and must be considered to include freestone as a mineral; but that the intention of the deed was to preclude the use of open work (2). In all well-prepared instruments, compensation is pro- vided in such cases for injuries to the surface. But in the (k) Bell v. Wilson, 2 Dr. & Sm. 395; 34 L. J., Chane. 572; 35 Ib. 337. (I) The report of the case of M‘Mahon v. Berton, 2 Allen’s Rep. 321, was sent to the author from New Brunswick. The Supreme Court there held that a right of entry must be expressly comprised in the exception in a crown grant to enable the crown lessees to work the mines. But the judgment is entirely wrong, and confounds a very simple point with cases of royal mines and copyholds, SECT. I.] SEVERED FROM THE INHERITANCE. 69 absence of express stipulation, it is presumed that proper compensation would still be recovered, unless any words in the instrument itself could be construed to withhold it. It is scarcely necessary to observe that the above re- marks can have no application to mines in copyhold lands which are not absolutely vested in the grantor. The lord may grant the property in mines, but he cannot grant what he may not himself possess—the right of entry to work them. It may sometimes happen, however, that the lord may have made a grant in fee of the minerals in copyhold lands not subject to any special custom, to third persons, and then enfranchises the lands, without except- ing the minerals. It might be contended that the mines, as in other freehold lands, formed a distinct inheritance, and that the grantees had then a right to the possession of their property. But it is presumed, the grantees would not be in the situation of parties claiming the full benefit of an unrestricted grant, inasmuch as at the time of their grant no right of entry could possibly be passed from the grantor, and no reservation had been made in the deed of enfranchisement, which might enure for the benefit of the grantor. The consequence would appear to be, that the mines would be severed from the demesnes of the manor, and would form a separate inheritance, as in freeholds generally, but that they would remain as inaccessible to the proprietor as before the act of enfranchisement. But if the grant of the minerals were made for a limited period, the owner of the lands would, in such cases, of course be entitled to them after the expiration of that period (2). When the mines are excepted in a deed of enfranchise- ment, full powers to enter and work should be given; for otherwise it might be doubted whether the lord or his grantee would be in any better condition with respect to the mines than before. The exception might only operate upon what he is already possessed of. Jlla pars quam (4) Townley v. Gibson, 2 T. R. 701. 70 RIGHT TO WORK MINES. [cHaP. Iv. retinet semper cum eo est et semper fuit(m). But it can confer nothing more, except what may be presumed to have been intended by the nature of the contract. The exception cannot itself form a reservation. The distinc- tion between the two is here material. The mines may be excepted, but the right to work them should, in such cases, be also reserved. The owner of the land grants nothing to which a legal presumption can attach. But the reservation of a right to work will operate, by way of contract, as the grant of a new incorporeal hereditament in favour of the lord. Section IT. PERSONS WITH LIMITED AND QUALIFIED INTERESTS. WE are now to discuss the rights of those possessed of more limited interests, and we may first consider the privi- leges of proprietors, when the mines form an unsevered portion of the general inheritance. - Most of the different estates which may subsist in a fee simple can only be created by some of the common assu- rances recognized by law. It is not unusual to insert, in instruments of this description, distinct powers or reserva- tions with respect to the working of mines. These powers, however, will be reserved for future consideration, and we shall at present confine our attention to the interests of those claiming either by act of law, or under instruments which contain no special clauses or directions with respect to mines. It may, in the first place, be generally premised, that it is an act of waste to work unopened mines or quarries (7), or to produce any change in the land that affects its enjoy- (m) Co. Litt.47.a; Brooke’s Abr. ning, 2 Roll. Abr. 816 ; Manwood’s title Reservacion, pl. 46. case, Moore, 101; Astry v. Ballard, (2) Co. Litt.53 b, 54b; Moyle v. 2 Mod. 193. Moyle, Owen, 66; Nowell ». Don- SECT. IL. | LIMITED AND QUALIFIED INTERESTS. 71 ment in the state in which it is received, as by making un- accustomed roads, or giving other rights prejudicial to the inheritance (0). Waste has been further defined to con- sist, first, in diminishing the value of the estate; or, se- condly, increasing the burthen upon it; or, thirdly, im- pairing the evidence of title ( p). A tenant in tail has, like a tenant in fee simple, an estate of inheritance in the lands limited to him, but his estate must descend in the particular line marked out for its devolution. Notwithstanding this limited mode of descent, an estate in tail has certain incidents annexed to it which cannot be restrained by any condition, and amongst others is the power of the tenant to commit waste. A tenant in tail, therefore, may fell timber, pull down houses, and open and work mines. But the waste or the act of severance from the inheritance must be com- mitted in his own lifetime, for the heir will be entitled to the remainder as part of the fee (9). The Court of Chancery will never restrain a tenant in tail from committing waste (r). In a case where waste was committed by the assignees of a tenant for life, who was a bankrupt, it was held, that the first tenant in tail was entitled to all the proceeds as the owner of the first estate of inheritance. If the acts had not been wrongful, the assignees would have been en- titled for the life of the bankrupt. There was another tenant for life, still living, and who had not taken any part in the waste(s). The same rule prevails in favour of a tenant for life, unimpeachable for waste, when the waste has been committed by a deceased tenant for life, who had no right to commit waste (t). When waste has been com- (0) Bac. Abr. Waste, 255. orchy v. Bosville, Cas. temp. Talb. (p) Doe d. Grubb v. Earl of Bur- 16. lington, 5 B. & Ad. 507. (s) Lushington v. Boldero, 15 (q) 11 Rep. 50 a; Plowd. 259; Beav.1; 21 L.J., N. S.C. C. 49. Hard. R. 96. _ (#) Waldo v. Waldo, 10 L. J., N. (r) Forrester’s Rep. 16; Glen- 8., C. C. 312. 72 RIGHT TO WORK MINES. [ouap. Iv. mitted by a trespasser the proceeds belong to the owner of the first estate of inheritance, with due regard to the ex- tent to which a tenant for life has been injured (w). A tenant in tail after possibility of issue extinct has only an estate for life in the lands. This estate has, how- ever, been derived from an estate in fee tail; on this ac- count, he possesses more than the ordinary powers of the tenant for life, and having once had the power of commit- ting waste, he is still dispunishable for waste, because he continues in the seisin by virtue of the livery upon the estate tail(v). But he cannot commit wanton or mali- cious waste, in which he will be restrained by the Court of Chancery in analogy to the rule to be presently noticed with respect to a tenant for life without impeachment of waste (x). His privileges extinct are also personal, and arise from the privity of estate. His grantee, therefore, will be a mere tenant for life (y). A tenant for life, without being authorized, cannot com- mit waste. But he will be entitled to take the minerals upon his lands for the purposes of husbandry and repairs, One of the incidents to his estate is his right to estovers (z). This word has been generally defined to mean an allow- ance of necessary wood; but there seems reason to con- tend that the original word estoffe, whence comes the English word stuff, might comprise all that was necessary for the cultivation and repairs of the estate generally. The statute of Westminster 2, c. 25, gives an assize of novel disseisin de estoverits bosci, which would seem to show that the word was not used in necessary connection with wood. At any rate, there can be no doubt that a tenant for life (uw) Bewick ». Whitfield, 3 P. Bowles’ case, 11 Rep. 83 a; Cookv. Wms. 267; Bell v. Wilson, 35 L. J... Winford, Abr. Eq. 221; Williams v. Chance. 341. Williams, 12 East, 209. (v) Co. Litt. 27 b; 2 Inst. 302; 1 (y) Co. Litt. 28a; Aprice’s case, Roll. Rep. 184. 3 Leon. 241. (zt) Abraham v. Bubb, 2 Freem. (z) Co. Litt. 41 b. 53; Anon. 2 Freem. 278; Lewis SECT. I1.] LIMITED AND QUALIFIED INTERESTS. 73 may, in all cases, dig for gravel, lime, clay, earth, stone or similar minerals for the repair of buildings and the manur- ing of the land(a). Thus, it is said, if a lessee of land with mines of coals, iron, and stones, digs as much as is necessary for him to use, without selling, it is no waste (0). But it is also stated by Coke, if the tenant cut down trees for repairs and selleth them, and after buyeth them again, and employs them about necessary repairs, yet it is waste by the sale (c). But an important distinction has been taken between mines open and unopened. Lord Coke says, “a man hath land in which there is a mine of coals, or of the like, and maketh a lease of the land (without mentioning any mines) for life or for years, the lessee for such mines as were open at the time of the lease made, may dig and take the profits thereof. But he cannot dig for any new mine that was not open at the time of the lease made, for that should be adjudged waste, and if there be open mines, and the owner make a lease of the land, with the mines therein, this shall extend to the open mines only, and not to any hidden mine; but if there be no open mine, and the lease is made of the land together with all mines therein, there the lessee may dig for mines and enjoy the benefit thereof, otherwise those words should be void(d).” It might cer- tainly seem to be the true construction of an instrument granting lands with all mines therein, and the mines were unopened, that the tenant for life or for years should be unimpeachable for waste, and be at liberty to work the mines by express stipulation; ué res magis valeat quam pereat ; but this doctrine, notwithstanding Saunders’ case, where it was first resolved, was denied both by Lord Mac- clesfield and Lord King in a similar case, in which it was (a) Co. Litt. 53 b,54b; Moylev. C. C. 159. Moyle, Owen, 67. (d) Co. Litt. 54 b.; Saunders’ (b) 2 Roll. Abr. 816. case, 5 Co. 12; Lord Darcy v. Ask- (c) Co. Litt.53 b. See Countess with, Hob. 296; Hutt. 19. See of Plymouth v. Lady Archer, 1 B. Code Nap. Civ. 598. 74 RIGHT TO WORK MINES. [CHAP. IV. urged, that the mines being expressly granted by the set- tlement with the lands, it was as strong a case as if the mines themselves were limited to the tenant for life. But it was decided, that a tenant for life subject to waste shall no more open a mine than cut down the timber trees which were equally granted by the deed, and that the meaning of inserting mines, trees and water was that all should pass, but as the timber and mines were part of the inherit- ance, no one should have power over them but such as had an estate of inheritance limited to him (e). The same reasoning might apply to mines that were opened, which are equally part of the inheritance, but the presumption in favour of this construction of the deed is certainly stronger; for the absence of more express stipu- lation would seem to show that the land was granted with all its current profits(f). In the other case, there was, properly speaking, no mine at all, but only veins or strata. Indeed there can be no doubt that, though a tenant for life subject to waste cannot in any case open mines, he may, in the absence of stipulation to the contrary, proceed to work the mines or quarries that are opened. In this instance, modus et conventio vincunt legem, and it is quite competent for a settlor to stipulate that a tenant for life or for years shall not even work the open mines and quarries (9). It has been decided, that a tenant for life, subject to waste, may open new workings to pursue old veins which were open when he came into possession of the estate. An injunction was moved for, but Lord King observed, that the question had been determined in the great cause of Hellier v. Twyford, in which he was of counsel, and which was tried at the assizes in Devonshire before Mr. Justice Powell, where it was proved by witnesses to (e) Whitfield v. Bewit, 2 P. Wms. (g) Ferrand v. Wilson, 4 Hare, 240. 3888; 15 L.J., N.S.,C.C.41. See (f) Rutland v. Greene, 1 Sid. Doe d. Hopkinson v. Ferrand, 20 152; 1 Lev. 107. L. J., N. S., C. P. 202. SECT. II. | LIMITED AND QUALIFIED INTERESTS. 75 be the course of the country, and a practice well known in those parts among the miners, that any person having a right to dig in mines may pursue the mine, and open new shafts or pits to follow the same vein; and that otherwise the working in the same mines would be impracticable, because the miners would be choked for want of air, if new holes were not continually opened to let the air into them ; that the same vein of coal frequently ran a great way, and the same mine of coals was very knowable, and easy to be discerned (A). In the same case, it was decided that, to enable a tenant for life to work mines, it is not necessary that they should have been open at the time of the settlement. It is suf- ficient if the mines are lawfully opened by any precedent tenant in tail, though subsequent to the settlement. The actual distinction between an old mine and a new mine has never been plainly determined; at least no case is reported. Such questions might be found to be difficult of solution. From the case just cited, it would seem that the pursuit of the same vein or stratum would be permitted to a person claiming to work old mines. There does not ap- pear to be any objection to such a test, if the works were continuous. It might be doubtful, however, how far a mine which had been discontinued could be considered to be still an old mine (2), or whether a new bed or vein can be worked by means of an old shaft (k). Much would, in all such cases, depend upon the particular facts (2). In a late case, an owner in fee had made some prepara- tions for making clay. There were old pits which had not been worked for twenty years, and it was stated that he had taken some clay from them. But they were not stated to be in a course of working at his death. A tenant for life, under his will, began to dig clay, but an injunction was (hk) Clavering v. Clavering, 2 P. (x) Ferrand v. Wilson, supra. Wms. 388; Sel. Ch. Ca. 79; Mose- (1) See Stoughton v. Leigh, 1] ley, 219. Taunt. 410; Bartlett v. Phillips, 4 (i) Ibid. De G. & J. 414, 76 RIGHT TO WORK MINES. [ CHAP. IV. granted, in order that the state of the pits might be more exactly ascertained(m). Cases of this kind will mostly de- pend on the distinction between suspension and abandon- ment (7). In a case, where a testator had granted a lease of all the seams of coal and ironstone in certain lands, and only two seams had been worked in his lifetime, it was held, that another seam could be worked by means of the same shaft as part of the old mine; and that the profits of the whole mine were payable to a tenant for life under the testator’s will (0). In another case, it was held, that a mine which had not been worked for twenty or thirty years, from the want of profit, might be worked again by a succeeding tenant for life ; but that if a mine has been abandoned by the owner of the inheritance many years previously, with a view to some permanent advantage to the property, a succeeding tenant for life could hardly treat that as an open mine. The opening of a fresh pit might, under some circum- stances, not amount to the opening of a new mine, but only to the more advantageous mode of working an old one, and might possibly be done without any injury to the inheritance, if the surface of the land where it was opened was of little value to the estate (p). A testatrix was possessed of a moiety of mines at Aroa, in Columbia, South America, and was mortgagee of the other moiety, with power of sale. She devised the mines, with an estate there, to trustees for sale, and the proceeds of the sale were to form part of her residuary personal estate, which she directed to be invested in lands to be settled to the uses declared of her residuary real estate. The tenant for life under the will had spent money in (m) 8 Viner v. Vaughan, 2 Beav. Daly v. Beckett, 24 Beav. 114. 466. (f) Bagot v. Bagot, Legge v. (n) See Chap. V. Legge, 32 Beav. 509; 34 Ib. 134; (0) Spencer v. Scurr, 31 Beav. 33 L.J., Ch. 116. 334; 31 L. J., Ch. 808. See also SECT. I1.] LIMITED AND QUALIFIED INTERESTS. v7 erecting permanent furnaces and works at the Ravenhead Copper Works, near Liverpool, which formed part of that estate. A proportionate increase of rent had been paid by the lessees. The Aroa mines had for some years been unproductive, and had been worked at a loss; but, as the laws of Columbia subjected mines not continually worked to forfeiture, the tenant for life had continued large pay- ments made by the testatrix for keeping the mines in work, and for preventing forfeiture. An offer of 50,0000. had lately been made for the mines. On a suit being instituted for the administration of the trusts, the tenant for life was allowed to ask for inquiry respecting the pay- ments made by him for the mines, but not as to the sums paid for the furnaces and works. A general reference was directed as to the Aroa mines, and the contract for their sale, with the view of ascertaining whether the money had been expended for the benefit of the inheritance, and could be allowed by the Court (q). In another case, a tenant for life, impeachable for waste, had cut timber to a large extent, and had worked coal mines, both old and new. A suit was instituted, after the death of the tenant for life, for making his estate liable for acts of waste. A compromise was suggested by the Court for the purpose of avoiding a long and expensive inquiry, increased by the difficulty of determining which were opened and which were unopened mines. The accounts furnished were to be admitted, and certain sums in respect of the timber and the new mines, with interest at 4/. per cent. per annum from the day of the death of the tenant for life, were to be charged against his estate, and invested as part of the settled estates. The compromise was not accepted, and a decree was made. An account was di- rected to be taken of the timber and minerals appropriated by the deceased tenant for life prior to the birth of the first tenant in tail, distinguishing old from new mines, (q) Dent ». Dent, 30 Beay. 363; 31 L. J., Ch. 436. 78 RIGHT TO WORK MINES. [ CHAP. IV. with an inquiry into the circumstances of the old mines having remained dormant, and whether the new pits were opened for facilitating the old workings or for fresh mines. Similar accounts were directed respecting the timber. Upon such account being taken, the sum payable in respect of improper appropriations was directed to be in- vested as part of the settled estates, and the interest since the death of the late tenant for life to be paid to the exist- ing tenant for life—and the sum payable in respect of such improper acts after the birth of the tenant in tail was directed to be paid to him absolutely, with interest from the times when it was received. All the monies properly received were directed to be invested as part of the settled estates, and the late tenant for life was to be considered to have been entitled to the interest for his life, and, since his death, the interest was to be charged against his estate. It was intimated, that the Court would take the accounts and prosecute the inquiries in the manner most liberal to the deceased tenant for life, particularly after the great lapse of time, which occasioned difficulties as to evidence. An inquiry was also directed as to what minerals were then’ in existence, and their condition, and whether it would be for the benefit of the inheritance, that any of them should continue to be worked—and also, an account of all profits and monies derived from the working of the mines since the death of the tenant for life, and by whom they had been received, with a declaration that all such proceeds, and all future proceeds, ought to be invested as part of the settled estates (r). An appeal was entered against this decree, and a com- promise was effected, with the approbation of the Lord Chancellor, on the terms of payment by the estate of the late tenant for life of the proceeds of the timber and minerals, including minerals won from dormant mines, (r) Bagot v. Bagot, Legge v. 383 L. J., Ch. 116. Legge, 32 Beav. 509; 34 Ibid. 134; SECT. II.] LIMITED AND QUALIFIED INTERESTS. 79 with interest from his death; so much of such proceeds as had arisen before the birth of the first tenant in tail to be invested and treated as part of the settled estate, and so much as had arisen subsequently to belong to him absolutely. In the above case, it was said in the Court below that no opinion was expressed as to whether a presumptive tenant in tail would be entitled to the corpus of the fund in the same way as an apparent tenant in tail. The law of Scotland makes no distinction between open and unopened mines in the case of a tenant for life with- out express powers to work (s). Such is the law with respect to the rights of a tenant for life subject to waste, and we are now to consider the rights of a tenant for life, who is made expressly dispunishable for waste, or who is without impeachment of waste. It has frequently been decided, that these words only ex- tend to permissive waste, and not to the destruction of the estate itself, and that they will not authorize any malicious or extravagant acts of ownership, as in cutting down orna- mental trees, or in wantonly pulling down houses (¢). It had been decided in an old case at law, that the words, without impeachment of waste, gave the tenant the absolute property in the thing wasted, and courts of equity were for some time prevented by this case from interfering, as it would have been to declare that a man should not be al- lowed to make use of the property which the law allowed him (uz). But it has also been held at law, that a tenant for life, under these circumstances, was only exempt from an (s) Swinton v. Roxburgh (Duke), Wms. 527; Aston v. Aston, 1 Ves, Fac. Coll. Eas. 7 Jan. 1816; Ersk.2, 264; Piers v. Piers, 1 Ves. 521; 9, 57. Rolt v. Lord Somerville, 2 Ab. Eq. (t) Packington v. Packington, 3 759; Strathmore v. Bowes, 2 Bro, Atk. 215; Abraham »v. Bubb, 2. Rep. 88. Freem. Rep. 53; Vane v. Lord Bar- (u) Lewis Bowles’ case, 11 Co. nard, 2 Vern. 738; 1 Salk. 161; 79. See 1 Ves. 265; Pyne v. Don, Bishop of London v. Web, 1 P. 1 Term Rep. 55. 80 RIGHT TO WORK MINES. [ CHAP. IV. action of waste, the penalty of the Statute of Gloucester, the recovery of treble value and the place wasted (x). It seems, however, never to have been disputed, either at law or in equity, that a tenant for life, without impeach- ment of waste, may open and dig mines at his own plea- sure (y). This right will, of course, be accompanied with all the necessary incidents; but if it could be shown that the tenant was exercising his privilege in a wanton or malicious manner, a court of equity, it is presumed, would interfere to control him, in analogy to the principle adopted in cases of the destruction of timber and houses. A long lease had been granted by a former Bishop of London, without impeachment of waste, and the lessee had agreed with some brickmakers, that they might dig and carry away the soil of twenty acres, six feet deep, provided they did not dig above two acres in the year, and levelled those acres before they dug up others. not the cre- ditors, were the company in whose name the bills were accepted. The case was taken to the House of Lords. The judges who were summoned were again equally divided. But it was unanimously decided by the House, that the creditors were not partners, and that the judg- ments below should be reversed. The main reasons were, that the creditors could not receive more than the amount of their debts, and that any surplus profits would belong to the former owners ( f ). It has frequently been decided of late years, notwith- standing some earlier decisions (g), that a person may, to a certain period and extent, perform many acts in contem- plation only of becoming a partner, and in order to assist in the formation of a company, without incurring neces- sarily the immediate liabilities of a partner. A joint-stock scheme requires the issuing of prospectuses and subscrip- tion lists, and the contribution of money to meet the cur- rent expenses of making known and recommending the proposed undertaking. The directors or ostensible man- agers, even of an incipient adventure, will be liable for the debts incurred on behalf of the proposed company (/). (f) Hickman »v, Cox, 18 Com. B. 638; 25 L. J., C. P. 277; Ib. (in error), 27 L. J., C. P. 129; Ib. (H. of L.), 30 L. J., C. P. 125. (g) Holmes v. Higgins, 1 Barn. & C. 74; Ellis v Schmeck, 5 Bing. 521; 3 Moo. & P. 220; Perring v. Hone, 4 Bing. 28; 12 Moore, 135; 2 Car. & P. 401. (hk) Doubleday v. Muskett, 4 Moore & P. 750; 7 Bing. 110; Glenester ». Hunter, 5 Car. & P. 62; per Tindal, C. J., Hancock v. Hodgson, 4 Bing. 269; 12 Moore, 504; Attwood » Small, 1 M. & R. 246; 7 Barn. & C. 390; 2Y.& J. 72; 3 Car. & P. 208; Maudsley v. Le Blanc, 2 Car. & P. 409; Kid- welly Canal Company v. Raby, 2 Price, 93; Barnett v. Lambert, 15 M. & W. 489; Higgins v. Hopkins, 3 Exch. 163; Bailey v. Macaulay, Dawson v. Hay, Wilson v. Holden, 19 L. J., N.S., Q. B. 78; 15 Q. B. 533. SECT. II. ] CONTRACT AND DISSOLUTION. 405 But the provisional subscribers, viz., those who counten- ance and forward the scheme, without undertaking any part of the actual management, are only considered as persons engaged or willing to become partners at some future day, when the company has been formed upon the proposed terms, and they will not thus become liable, be- cause the debts are not contracted by their authority, and because, under the terms usually propounded, they may elect rather to forfeit their shares than to join finally in prosecuting the adventure. Thus, in an action which was brought against a person for the payment of a bill of exchange, drawn and accepted by a mining company, it appeared that in the early part of the year 1825, certain persons associated for the purpose of forming a company to work mines in Devonshire and Cornwall. On the 7th of April in that year, a meeting was held, and several resolutions were passed with respect to the formation of a company, the amount of capital and shares, and appointment of directors and other officers. These resolutions were advertised, and a counting-house was taken in London, clerks were engaged, a contract was entered into for purchasing mines in Cornwall, an agent was employed to reside there, and some of the mines were actually worked. The defendant, on the 6th of April, applied to the secretary for thirty shares, and ten were ap- propriated to him. He paid an instalment of five pounds per share, and received in return some printed receipts, called scrip receipts. He afterwards took these scrip re- ceipts to the counting-house, where there was a meeting of the directors, and paid a second instalment of ten pounds per share, and signed a deed. In July, 1826, he attended a general meeting of the shareholders. The defendant offered evidence of what he said at this meeting to show that he went to it for the purpose of declining an interest in the company, and not for the purpose of taking any part in the direction of its affairs. But Mr. Justice Bur- rough rejected the evidence. The defendant also tendered 406 PARTNERSHIPS IN MINES. [CHAP. X. evidence to show fraud and false representations on the part of the original projectors, in order to induce persons to become members of the company. This evidence was also rejected by the Judge, on the ground that fraud in the concoction of the concern, though practised on the defendant, was no answer to the action by a stranger. The defendant was found to be a partner upon the direc- tion of the learned Judge. It was held by the Court of King’s Bench, that the defendant was not liable, upon other grounds, and a nonsuit was entered; but it was evi- dently the impression of the whole Court that there was not sufficient evidence of his being a partner. The latter point was fully discussed by Mr. Justice Parke, who said, that, though the defendant would have been bound by an indirect representation to the plaintiff, arising from his conduct, as much as if he had stated di- rectly and in express terms that he was a partner, and the plaintiff had acted upon that statement, there was, how- ever, no reason, in that case, to say that the defendant had ever held himself out, either directly or indirectly, to the plaintiff as a partner. He was not liable, therefore, on the ground of misrepresentation. It had been next said that he was bound because he was, in point of fact, a partner. It was to be observed, that amongst the circumstances relied on to show that, was the fact of the defendant’s at- tendance at some meeting of the shareholders; but as the learned Judge had shut out the evidence of what passed at the meeting at which the defendant attended, that at- tendance ought not to have been used against him, and, therefore, on that ground, there ought to be a new trial. But it was very difficult to say there was sufficient evidence to go to the jury that the defendant was actually a partner, because all the acts proved and relied upon at the trial were equally consistent with the supposition of an intention on his part to become a partner in a trade or business to be afterwards carried on, provided certain things were done, as with that of an existing partnership. There was SECT. IL. | CONTRACT AND DISSOLUTION. 407 a great difference between the two cases. If there was a contract to carry on any business by way of present part- nership, between a certain definite number of persons, and the terms of that contract were unconditional or complete, the partners gave to each other an implied authority to bind the rest to a certain extent. But if a person agreed to become a partner at a future time with others, provided other persons agreed to do the same, and advanced stipu- lated portions of capital, or provided any other previous conditions were performed, he gave no authority at all to any other individual, until all those conditions were per- formed. In those cases, in which a plaintiff has not been induced by the defendant’s representation to give credit to him, but seeks to fix him because he has really authorized the contract to be made, the plaintiff must show that authority, and an authority upon condition not performed is no authority at all (7). This view of the subject has been fully confirmed by an important case decided in the Court of Common Pleas, in which the law regulating these proceedings is fully pro- pounded (A). It thus appears that, before the actual formation of any company, a person will not necessarily become a partner by agreeing to take certain shares, paying the amount of deposits, attending preliminary meetings, and acquiescing generally in the provisional system of management. But if he interfere in the management of the concerns even before they have arrived at any state of maturity, he may become liable as a person to whom credit is given. If, again, the partnership can be considered as having once (i) Dickinson v. Valpy, 10 Barn. B. 925; Reynell v. Lewis, Wyld v. & C. 128; 5M. & R.126; see Ed- munds v. Bushell, 35 L. J., Q. B. 20; 1 Law Rep., Q. B. 97. (k) Fox v. Clifton, 6 Bing. 776; Moore & P. 712. See also Bourne v. Freeth, 8 Barn. & C. 632; 4M. & R. 512; Scott». Berkeley, 3 Com. Hopkins, 16 L. J., N. 8., Exch. 25; 15 M. & W. 517; Kisch v. Vene- zuela Central Railway Company, 34 L. J., Ch. 545; Ross v. The Estates Investment Company, Limited, 36 L. J., Ch. 54. 408 PARTNERSHIPS IN MINES. [CHAP. X. been actually formed, a person may so far identify himself with the interests of the concern in the estimation of the public, as to make himself responsible as a partner, by any of those acts which would, under ordinary circumstances, have had the same operation, and although there may be no evidence to show that he has acquired a real interest in the adventure. The public cannot then presume a mere contemplation of partnership. Thus, the admission of a person that he is a partner, even before he has signed the deed (/), the attendance at any meetings of the share- holders without taking any prominent part in the manage- ment (m), and any other voluntary act which can be fairly construed as placing him in a situation in which a person, who was aware of any of these acts before credit is given, might justly be presumed to give credit to the concern on his account, will be sufficient to contract the obligation of partnership, with respect to third persons, as a holding out to the world. All these and similar acts will not be mere facts for the jury, but their legal result will be considered by the Court (7). In a case before cited, the shares were subscribed for and allotted, but the calls were not paid up. The de-. fendant attended occasionally at the office and at meetings of the company. The report stated the calls to be paid, but he had the means of ascertaining that they were not paid. It was held, that there was sufficient evidence for the jury to find that he had authorized the directors to go on with the company without the payment of calls, and that he was liable as a partner (0). In another case, the deed of settlement provided that the holders of scrip shares should not be considered quali- (1) Harvey v. Kay, 9 Barn. & C. (n) Fox v. Clifton, 2 M. & Scott, 356. 146; 9 Bing. 115. (m) Maudsley v. Le Blanc, 2 Car. (0) Steigenberger v. Carr, 3 Scott, & P. 409; Braithwaite v, Schofield, N. R. 406; 10 L. J., N. S.,C. P. 9 Barn. & C. 401. 253. SECT. IL. | CONTRACT AND DISSOLUTION. 409 fied proprietors. The plaintiff had sold to the defendants, who were directors of a mining company, several shares in another concern, for a sum of money and certain scrip shares in the company. The scrip certificates were de- livered to him, and the defendants gave him a promissory note for the money, but not as directors. The plaintiff never paid any instalment nor signed the deed of settle- ment. The defendants, in an action on the note, pleaded that they made the note as directors, and that the plaintiff was a partner. But it was held, that the plaintiff had not determined to become a partner, and that there was only an inchoate right of partnership (p). When there is a material difference between a pro- spectus, on the faith of which a person has had an allot- ment of shares, and the articles of association, which have never been communicated to him, and he has received no dividends nor otherwise acted as a partner, the Court will strike out his name in the registered list of shareholders, and he will cease to be a contributory under the winding- up acts. In a case of this kind, the prospectus was founded on the expectations of profits from one particular mine in Russia, and the memorandum of association ex- tended to any Russian mines. This variance was held to be fatal (q). There cannot, in such cases, be any acquiescence on the part of a shareholder without a knowledge of the facts. Mere lapse of time, therefore, cannot amount to acquiescence (7). A company was formed for working mines in West- phalia. In an action against a proposed shareholder, general evidence was given that nothing had been done in this country towards final constitution. It was held, (p) Fox v. Frith, 10 M. & W, Overend, Gurney & Co. (Limited), 11 L. J., N. S., Exch. 336. re Oakes’ case, re Peek’s case, 36 (q) Re The Russian Vyksonasky L. J., Ch. 233. Iron Works Company, Ex parte (r) Ibid. Stewart, 85 L. J., Ch. 738. See 410 PARTNERSHIPS IN MINES. [clap. x. in the absence of contrary evidence, that the company was never finally constituted (s). In another case, where a cost-book mine had been aban- doned before all the shares mentioned in the prospectus had been subscribed for, or the deposits all paid, an allottee of shares was allowed to recover back his de- posits (). The payment of a commission to a person on all goods sold to his own workmen does not make him a partner (u). By a late statute, it is enacted, that no partnership shall be constituted by the advance of money, by way of loan, on which interest is to be paid at a rate varying with the profits, or by a share of the profits—nor in the remuneration of an agent or servant by a share of the profits—nor by the receipt of annuities or a portion of the profits in consideration of any sale of good will. But all claims founded on these transactions will be postponed, in bankruptcy, to other creditors (x). The subscribers to the memorandum of association of a limited company duly registered are legal directors till the first general meeting of the shareholders, and are com- petent, under the ordinary regulations of the act, to ap- point a manager of a mine with a salary, although the manager may have been one of the directors (y). A mine in Cornwall was purchased for 1,0001. in cash, and 15,0001. to be paid in cash or shares at the end of six months, if it should be deemed desirable to continue ope- rations, the payment or the surrender of the mine to the vendor being left to the option of the adventurers. There was then established a company on the cost-book system, (s) Bristow v. Secqueville,5 Exch. 15 L. J., N. S., C. P. 257. 275; 19 L. J., N.S., Exch. 289. (x) 28 & 29 Vict. c. 86. (t) Johnson v. Goslett, 18 Com. (y) Eales ». The Cumberland B. 728; 25 L. J., C. P. 274; (in Black Lead Mining Company, Li- error) 27 Ib. 122. mited, 6 Hurl. & N. 481; 30L. J., (u) Pott v. Eyton, 3 Com. B.32; Exch. 141. , SECT. IL. | CONTRACT AND DISSOLUTION. 411 and 15,000 shares were reserved for the vendor, 33,750 were allotted to three other persons, and the remainder distributed to others, of whom the defendant was one. It was also proposed and accepted, that the three persons should find the capital required for the mine for the next six months. At a subsequent meeting of shareholders it was resolved that three of the shareholders, of whom the defendant was one, should be a managing committee ( pro tem.), and should form rules; a purser was appointed (also pro tem.), and the offer with respect to finding the capital was accepted. The defendant was present at both meet- ings. During the six months the plaintiff supplied to the order of the purser the requisite machinery for extracting gold from quartz. The title of the company was “ The Cwmheisian Gold Mining Company.” An action was brought against the defendant as a partner. It was con- tended for him, that the only persons liable for goods for the six months were the persons who undertook to find the capital, and that the other partners were not liable till they had exercised the opinion, and had definitively taken the mines. But it was held, that the operations of the six months were not restricted to the benefit of the three persons who advanced the capital, and that the defendant was liable as one of the partners interested (z). By “The Companies Act, 1862,” it is declared that no company or partnership of more than twenty persons can be formed for general purposes of profit, unless it is registered under that act, or is formed under some other act of parliament, or letters patent, or is engaged in working mines within the jurisdiction of the Stannaries. This act forms the existing code for the incorporation, regulation, and winding-up of all. joint-stock companies, to be formed or wound up after 2nd November, 1862. It contains special provisions relating to the Stannaries Courts. The proper court for winding-up mining companies within (x) Peel v. Thomas, 24 L. J., N.S., C. P. 86. 412 PARTNERSHIPS IN MINES. [cHAaP. X. the Stannaries is the Court of the Vice-Warden, unless he certifies that in his opinion the company would be more advantageously wound up in the High Court of Chancery. The proceedings may be removed from the Courts of Chancery in England and Ireland into the Bankrupt Courts. The signature to a deed of settlement will have relation to the time of paying the deposits, and the person signing will be considered a partner from that period (a). Those who sign such a deed, and are desirous of withdrawing from the concern, must, therefore, conform to the stipula- tions contained in it, by which provision is usually made for that purpose. Two persons agreed to become partners in a colliery, which was to be demised on royalties or rents, and to divide these between them in some proportions. There was no written agreement. A bill was filed by one of the partners who produced a receipt in writing for part of an instalment, signed by the other, but which did not dis- close any terms of contract; which were entirely disputed. It was held, that the agreement was for the purchase of land, and was within the Statute of Frauds, that there had been no part performance, and that the contract could not be carried into effect (b). IJ. Having thus seen how a partnership in mines may be contracted, it may next be considered how the contract may be dissolved. Partnerships in mines, like common partnerships, al- though carried on for specific purposes, in connection with the enjoyment of certain interests in land, and with a limited and definite object, are subject to a dissolution by notice or mere verbal agreement, or by death, bankruptcy, sale of co-partnership effects under a separate execution (c), out- lawry or attainder of a co-partner, or the marriage of a (a) Lawler v. Kershaw, 1 Mood. & J. 52; 27 L. J., Ch. 153. & M. 93. (c) Waters v. Taylor, 2 Ves. & B. (b) Caddick », Skidmore, 2DeG. 299. SECT. II. ] CONTRACT AND DISSOLUTION. 413 feme sole. But almost all these events, as we shall see, may be provided for by express stipulation, or by. compact implied by custom. A contrary doctrine was maintained, in one case, by Sir John Leach, M. R. (d). But there is no ground for the distinction. Partnerships in mines were treated by Lord Eldon, in the great case of Crawshay v. Maule (e), as subject to the ordinary rules with respect to dissolution. It was observed by him in that case, that when there is nothing in the contract to fix the duration of a partner- ship, it may be determined at a moment’s notice by either party. By this notice, the partnership is dissolved to this extent, that the Court will compel the parties to act as partners, in a partnership existing only for the pur- pose of winding up the affairs. So, death terminates a partnership, and notice is no more than notice of the fact that death has terminated it(f). The doctrine, he con- tinued, that death or notice ends a partnership, had been called unreasonable. But if men will enter into a part- nership, as into a marriage, for better and worse, they must abide by it; if they enter into it without saying how long it shall endure, they are understood to take that course in the expectation that circumstances may arise in which a dissolution will be the only means of saving them from ruin; and considering what persons death might introduce into the partnership, unless it worked a dissolu- tion, there was strong reason for saying that such should be its effect. Is the surviving partner to receive into the partnership, at all hazards, the executor or administrator of the deceased, his next of kin, or possibly a creditor taking administration, or whoever claims by representa- tion or assignment from his representation(g)? If there (d) Feredayv. Wightwick, 1 Russ. 158. & M. 49. (f) See Vulliamy v. Noble, 3 Mer. (e) 1 Swanst. 521; 1J. Wils.181, 514. See also Jefferys v. Smith, 3 Russ. (g) 1 Swanst. 508. 414 PARTNERSHIPS IN MINES. [ CHAP. X. is a trading partnership, the common principles must be applied (A). An assignment of shares will thus produce a dissolution of partnership, in the absence of previous stipulation to the contrary. The maxim of the civil law, cum aliquis re- nunciaverit societati, solvitur societas, is applicable to all descriptions of partnership. The contract of partnership is ‘founded upon a delectus persone, and the special confidence which is necessarily supposed to result from a connection originating in the mutual selection of partners. In one min- ing case, indeed, Lord Eldon asked the question, “might it not be a partnership, with liberty to each partner to in- troduce any other person into the partnership?” In that case, the question in dispute was with respect to the ap- pointment of a receiver. It had been contended, that the defendant was more properly to be looked upon as the pur- chaser of an undivided interest in real property, which might be sold from time to time, as the owner pleased; and that if this could be done, a case of partnership could not be established, without the consent of the other par- ties. Lord Eldon’s question merely pointed out the pos- sible and ordinary existence of a partnership, subject to the same powers of alienation as the estates of tenants in common (2). It appears from a subsequent report of the same case, that the agreement, under which the partnership was car- ried on, contained a stipulation that the partners might be at liberty to assign their shares to a certain extent (h). No person, therefore, can introduce another person into the partnership without previous agreement to that effect with the other partners. This agreement may either be express, as in cases regulated by deeds of settlement, or it may be implied, as in the cost-book system, by notorious (hk) Thid. 5238. W. 301. (i) Jefferys v. Smith, I Jac. & (k) Jefferys v. Smith, 3 Russ, 158, SECT. II. | CONTRACT AND DISSOLUTION. 415 usage and consistent practice. The same rule may be held to apply to other parol mining partnerships, consisting of many shareholders, exercising the right of alienation fre- quently and without question in the same way. It can hardly be denied that this freedom of transfer, without dis- solution, and without express stipulation, may be con- sidered as an invasion of the fundamental rule of selection. For the more correct legal result, in such transactions, seems to be, that a dissolution is effected, and that a new partnership is immediately formed, on the old terms, on the admission of each new partner (/). This process must indeed necessarily ensue when the partners are not nume- rous, and when usage cannot properly be held to supply the want of express agreement. In the case of a mine, in Wales, conducted on the cost- book principle, it was specially provided that any share- holder might determine his liability on giving notice in writing to the purser of his desire to retire, and on de- positing with the purser the transfer of the shares, and signing a relinquishment of all claims on the company. A shareholder signed a notice of retirement and relin- quishment in a form received from the office of the com- pany, and sent it as a letter to the purser. A few days afterwards the purser sent a new form, extending the lia- bilities to the end of the current month. The shareholder refused to sign this form. The company was ordered to be wound up. The Master placed the name of the share- holder on the list of contributories. But it was ordered by the Lords Justices to be removed from the list (m). If shares are assigned under special stipulations for the purpose to an insolvent or improper person, the liability of the assigning partner will cease for the future (n), for there is not in our law, as in the civil law, any implied trust that a person will exercise such a power for the benefit of the (1) See ibid. L. J., N.S. C.C. 692. (m) Ex parte Fenn, Re Pennant (n) Jefferys v. Smith, 3 Russ. 158. and C. Cons. Lead M. Comp., 22 416 PARTNERSHIPS IN MINES. [cHaAP. x. remaining partners. It is usual, therefore, to reserve in partnership deeds which confer a power of alienation some right of control to the other partners. If the partners carrying on the concern refuse to ac- knowledge such a person, or any other person, as a partner, they cannot afterwards charge him with the liability of a partner, though the latter will, of course, become liable to the public (0). It was a maxim of the civil law, from which many of the principles of English law with respect to this subject have been derived, that the contract of partnership was so strictly founded upon a delectus persone, that a stipula- tion for admitting the heir of the deceased into the part- nership was declared void(p). Such a restraint upon the transactions of mankind has not been countenanced by our law. It is now very usual, in partnership contracts, to stipulate that the partnership shall still subsist, notwith- standing the occurrence of events which would otherwise determine it. In this manner, almost all the causes of dissolution may be effectually provided for, so as to control the ordinary operation of law. The term of partnership may be made to endure for a certain number of years, and the contract be thus rendered incapable of being determined at the mere will of the parties, or by death, or assignment of shares. But it would appear that no stipulation will pre- vail against the legal consequences of bankruptcy and felony(y). In general, the various intentions of the par- ties may be expressed by particular clauses and stipula- tions, which will be carried into full effect, if they are not opposed to the general policy of the law. Stipulations of this nature may sometimes be implied from the acts and situation of the parties, and from the nature of the interests which may be vested in the part- (0) Thid. 169. (q) Wilson v. Greenwood, 1 (p) Dig. lib. 17, t. 2, 1, 35, 52, 59, Swanst. 471. 65, 70. SECT. II.] CONTRACT AND DISSOLUTION. 417 ners. If these interests, for instance, have devolved to them in a manner which is incompatible with the notion, that the partnership is to be dissolved by the usual means, it will be held to continue during the existence of those interests, if the parties do not enter into an agreement for dissolution. Thus, in the case of Crawshay v. Maule, so often cited (r), the testator, Richard Crawshay, was pos- sessed of the mines and iron works under three leases for ninety-nine years each, at an annual rent. By his will, he gave to his son, William Crawshay, the plaintiff in the suit, 100,000/., and to Joseph Bayley 25,000/., to be transferred from his account on the ledger to Bayley’s, intended as a capital for him to become a partner with his executor, of one-fourth share in the trade of all those works, so long as the lease endured. He then gave to Benjamin Hall and his wife and their heirs all the residue of his estate, and appointed Hall the sole executor. But by a codicil, he gave to his son, the plaintiff, “three- eighths shares of his concerns at the iron works, so the partnership would stand at his demise, William Crawshay three-eighths, Benjamin Hall three-eighths, Joseph Bayley two-eighths.” These three persons afterwards carried on the works in co-partnership, but without any articles of agreement. The plaintiff purchased the shares of Bayley, and the concern was carried on by the other two, who pur- chased the rents reserved by the leases in the proportions of their respective interests in the trade; but the leases were still subsisting. Hall died, and in his will gave several directions to his trustees with respect to carrying on or discontinuing the works. The plaintiff filed his bill for a judicial declaration of dissolution by the death of Hall, and prayed an account and sale of the property, and a division of the proceeds. It was insisted by the defendants, that it appeared from the will and codicil of the testator to have been his intention that his legatees (r) 1 Swanst. 495. B. EE 418 PARTNERSHIPS IN MINES. [CHAP. X. should, for themselves and their representatives and fami- lies respectively, have an interest in the leasehold premises and iron works commensurate with the terms for which they were held, and, therefore, that no sale should be di- rected, but that the works should continue to be carried on in partnership. Lord Eldon held, that the intention of the testator in this respect was not apparent from the language of his will, but, he admitted, that if the testator and owner of the property had thought proper, by his will, to declare that his legatees should continue the partnership as long as the longest of the leases should endure, no person claiming under that will could enjoy the benefits conferred by it, without submitting to the inconveniences which it imposed (s). It had been contended, he observed, on another day, that the late Mr. Crawshay, having formed this business, must have had an intention to keep it to- gether, as one concern, though he distributed different interests in it among different members of his family: had he so said, without doubt those who took his bounty must have taken it on the terms which he imposed (¢). It had been also contended, in the above case, that the purchase of leases must be considered as evidence of a contract for the continuance of the concern. Lord Eldon said that, in the absence of express, there might be an implied, contract, as to the duration of a partnership, but he must contradict all authority if he said that wherever there was a partnership, the purchase of a leasehold inte- rest of longer or shorter duration is a circumstance from which it is to be inferred that the partnership should con- tinue as long as the lease. It would follow, that if the partners purchased a fee simple, there should be a partner- ship for ever. Unquestionably, partners may so purchase leasehold interests as to imply an agreement to continue the partnership as long as the leases endure; but it was equally certain that there was no general rule, that partners (s) 1 Swanst. 510. (t) Ibid. 520. SECT. II. | CONTRACT AND DISSOLUTION. 419 purchasing a leasehold interest must be understood to have entered into a contract of partnership commensurate with the duration of the leases. The purchase of a lease was no more than the purchase of an article of stock, which, when the partnership is dissolved, must be sold (x). What circumstances connected with the purchase of leasehold interests would be sufficient to imply a contract of partnership corresponding with their duration, it would be impossible to particularize. It has been suggested, that when a lease excludes assignees and sub-tenants, it might possibly be deemed evidence of such an intention (2). Several partners purchased an estate, and took a lease from the Bishop of Durham of an adjoining colliery for twenty-one years. They then signed a memorandum to the effect that they should be entitled to the estate and to the coal royalty in equal shares. A misunderstanding having arisen with one of the partners, the others passed a minute, offering him his capital, with interest, and re- solving that a dissolution of the partnership should be made with respect to the dissenting partner. On his still declining to pay his calls or sign a partnership deed, he was served with a notice of dissolution to the same effect. Negotiations took place respecting the payment of the capital and other compensation, and the terms of dissolu- tion. In this stage, an action was brought against all the partners, including the differing partner, on a bill of ex- change accepted in the name of the firm, to which the partner pleaded non-acceptance. It was held, on the trial, that the parties had agreed to be partners in the colliery for twenty-one years; that the notice of dissolution had no effect, and that the notice had been repudiated by the partner. But the Court of Exchequer held this to be a misdirection. Parke, B., said, the agreement had refer- ence to a loan and to other collieries, but the partners did (u) 1 Swanst. 508, 520, 526; see (2) 2 Bell, Com. 643. Burdon »v. Barkas, infra. EE2 420 PARTNERSHIPS IN MINES, [cHAP. X. not mean to bind themselves irrevocably for a certain term. By executing the lease, they became bound to the lessor, but not to each other, to work the collieries in a particular manner. They were partners for an indefinite period, and any one might determine the partnership. But there was evidence from which the jury might infer that all the parties came to a new agreement to carry on the concern as partners after the notice (y). When partnerships are entered into for a term, the parties are considered to become partners for the whole period, if they be living and are of the same legal capacity to continue contracts of this description. But there are, in such cases, circumstances which will authorize a Court of Equity to decree a dissolution before the regular expira- tion of the term. Impracticability of effecting the purposes of partnership has been held to be a just ground for such a decree. In one case, the partnership was entered into for spinning cotton by a new invention under letters-patent. The plaintiff alleged that the mode had been frequently tried, and was found to be impracticable. It was referred to the master, to ascertain the truth of the statement, with an intimation that if he reported in favour of the plaintiff’s case, a dissolution should be decreed, upon which the de- fendant consented to a dissolution (z). The same principle would be held to apply to mining speculations. In most cases, however, it would be im- possible to say that any particular mining scheme was impracticable. The total absence of metalliferous sub- stances in adventures of that nature is too frequent an occurrence, and may indicate nothing with respect to the eventual prospects of the trial. Nothing short of physical impossibilities would appear to form grounds for the relief in such cases. But it might be very different in searches (y) Laycock v. Bulmer, 13 L. J., (z) Baring v. Dix, 1 Cox, 212. N.S., Exch. 156. SECT. I. | CONTRACT AND DISSOLUTION. 421 for stratified substances, as coal and limestone. If any specific substances of this nature were not found, after competent trial, to exist at all in the lands, or to exist only in such a form as to render their acquisition of no value, or of a value greatly insufficient to answer the purposes of the company, a dissolution might be decreed (a). But the decision, in all such cases, would be guided by the inten- tions of the parties as expressed in their deed of settle- ment, or by their previous agreement; and, before a dis- solution is granted, it must clearly appear that those in- tentions are incapable of being carried into effect (4). Similar relief, by dissolution, may be obtained, in cases of partners becoming of unsound mind (c), or for gross breach of faith, or wilful acts of fraud, or even for reckless mismanagement and waste, or the exclusion of other part- ners from a share in the management, or for permanent and violent dissension (d). In a case of lunacy, the lunatic’s committee were al- lowed to bid for a mine. But he was not permitted to continue as a partner, on the demand of another partner for dissolution. It was also held, that a right of preemp- tion acquired by that partner, in pursuance of a notice given by another retiring partner before the lunacy, was binding on the lunatic and his committee (e). The consequences of a dissolution, when they are not regulated by express stipulation, are, that accounts be taken, that the partnership property should be sold, and the proceeds paid to the parties entitled, according to their (a) See Hanson v. Boothman,13 Jac. & W. 592; Chapman »v. Beach, East, 22. ibid. 594; Norway v. Rowe, 19 (b) See Waters v. Taylor, 2 Ves. Ves. 148; Waters v. Taylor, supra; & B. 299. Master v. Kirton, 3 Ves. 74; De (c) Ibid.; Sayer v. Bennet, 1 Cox, Berenger v. Hammel, 7 Jarm. Cony. 107; Mont. Part. App.; Leaf v 26. Coles, 1 De G., M. & G. 171. (e) Rowlands v. Evans, Williams (d) Marshall v. Colman, 2 Jac. & _v. Rowlands, 30 Beav. 302 ; 33 Beav. W. 200; Goodman v. Whitcomb, 1 202; 31 L. J., Ch. 265. 422 PARTNERSHIPS IN MINES. [CHaAP. X. several shares in the concern(f). In the case of mines, however, it would appear that there may be a reference to the master, to inquire whether it would be for the benefit of all parties concerned in the works that the property should be sold as going works, or that they should be car- ried on for the purpose merely of winding up the concern. As was observed by Lord Eldon, the state of the market varied so much, that a sale, which might be beneficial at one moment, and prejudicial at another, could not be or- dered without inquiry. Such a reference was accordingly ordered in the case referred to. It seems, also, by the same case, that the surviving or continuing partners would be justified in dealing with the property so as to wind up the concern ; but that in case of differences arising among them, the Court will appoint a manager(g). When a mining partnership is considered as actually dissolved, the Court will order a sale on motion, without waiting for a decree, a practice which would seem to apply to all part- nerships (/). Tn a bill for dissolution, all the parties, however nume- rous, must be parties (7). In a case where two partners had exhausted a coal mine, the accounts of the partnership had been settled, with some small exceptions, and one of the partners had agreed to take the materials at a sum which was fixed by valua- tion ; they were delivered to him, and the other partner brought an action against him for his half: it was con- tended, that there had been no final settlement of accounts, and no express promise to pay a moiety of the valuation. The jury was directed to find for the plaintiff, if they were of opinion that the partnership was dissolved, and that the defendant, on taking the materials, was to pay for half (f) Fereday v. Wightwick, 1 Ves. 226. Russ. & M. 45. (h) Ibid. 523. (g) Crawshay v. Maule, 1 Swanst. (4) Deeks v. Stanhope, 14 Sim. 528. See Crawshay v. Collins, 15 57; 13 L.J., N.S., C. C. 280. SECT. II. | CONTRACT AND DISSOLUTION. 423 of them. It was held, that the direction was substantially correct (7). On a dissolution of partnership between several colliery owners, holding mines under different leases, one of the owners prayed for a partition. But a sale of the entirety was ordered, although‘there were no debts (A). It has been decided, that the Joint Stock Companies ‘Winding-up Act, 1848, now repealed, did not apply for the mere settlement of disputes between partners. The plain- tiff, a shareholder, quarrelled with the other shareholders, for desiring to relinquish his share without payment of the expenses belonging to it, and they induced a creditor to sue him for the price of goods supplied to the mine. A verdict was got against him, and he served a notice under the act. Lord Cottenham, L. C., said, it was an error to use the act for settling controverted points between the shareholders and the company. There was no such object in the act. The object was on behalf of all creditors and shareholders, if a case appeared which would make it ex- pedient that the affairs should be wound up, to make arrangements for that purpose (J). The mode of winding up companies subject to the juris- diction of the Court of Stannaries will be noticed in another chapter. It is usual, in partnership deeds, to make particular sti- pulations with respect to the winding up of a concern after dissolution. The division of the stock, the collection of the debts, the mode of disposing of or valuing the con- cern, may all be provided for by previous arrangement. In many instances, it is advisable to prepare deeds of dis- solution in which the parties may give mutual releases. (j) Jackson v. Stopherd, 2 Cr. & (2) Wyld v. The Wheal Lovell M. 361. Company, 18 L. J.,N.S., C. C. 139; (k) Wild v. Milne, 26 Beav. 504. 1 Mac. & G.1; 1 Hall & T.125. 424 PARTNERSHIPS IN MINES. [ CHAP. X. Section ITI. ON THE LIABILITIES AND DUTIES OF PARTNERS. Havine thus explained the manner in which a mining partnership may be formed and dissolved, we may now proceed to consider the liabilities and duties which will devolve upon persons in consequence of the subsistence of that relation. It may be premised, that persons engaged in partnership for the prosecution of mining adventures will not become subject to all the consequences of a general partnership, ’ but only to those incidents which are considered properly to belong to cases of particular partnership. It was ob- served in the first edition of this work, that there were many questions affecting the liabilities and duties of per- sons engaged in particular partnerships, which had never received very accurate discussion—and that there had been few occasions to demand a very rigid judicial examination of the principles which should govern such engagements. Several recent cases have since occurred in which this subject has been considered. I. The law with respect to the liabilities induced by individual partners, in all cases of partnership, is founded upon one common principle ; and having once ascertained this principle, its application may, in general, be easily determined. This principle may be thus explained :— When persons agree to unite their labour, or their capital, in the prosecution of a common object, and as a trade, it becomes necessary for the effectual carrying on of the con- cern, that one partner should be allowed, without the express consent of his co-partners, to do many acts of business which may bind the whole firm. This authority springs from that mutual confidence which is presumed to be placed in each other, and is required for their mutual advantage. For it might otherwise happen that, from temporary absence or disagreement, and many other SECT. IlI.] LIABILITIES AND DUTIES OF PARTNERS. 425 causes, the business of the partnership might be alto- gether suspended, and eventually destroyed. Such rights are also equally necessary for the protection of the public, who cannot be expected, in every case, to transact their business with the whole collected body of partners, both visible and dormant; and who are, therefore, entitled to proper facilities in their general dealings with the firm. It is obvious, however, that there must be a limit to the extent of these authorities, and that the public cannot be entitled to presume a power for any partner to do any act which he may think proper for the welfare of the concern. This would be to convert the shield of preservation into an instrument of destruction. It is very usual, in partnership agreements, to introduce special provisions with respect to the extent to which part- ners may be permitted to produce a general liability. These stipulations will, of course, be binding upon all the members of the partnership (m). But if any of those terms are opposed to those general doctrines of the law which would have prevailed in the absence of special agreement, they will not operate to bind third persons, unless they have had notice of the existence of such arrangements (n). In all other cases, the limit of liability must, with respect both to the partners themselves and the public, be determined by the general usage of trade applicable to the particular branch of industry in which the society is engaged. An authority for one partner to bind another will, therefore, in all such cases, be presumed to exist, so far as by the general usage of persons engaged in similar pursuits, such an authority has been determined to be necessary for effectually conducting the business of the concern. In cases where usage may not have esta- blished any particular practice, or in which the custom (m) Ridley v. The Plymouth, Association, 8 Com. B. 849. Devon and Stonehouse Baking and (n) South Carolina Bank v. Case, Grinding Company, 2 Exch. 711; 8 Barn. & C. 427; 2 Man. & R. Thompson v. Wesleyan Newspaper 459. 426 PARTNERSHIPS IN MINES. [ CHAP. X. may be doubtful, it will still be necessary to recur to the original principle upon which all such customs are founded— viz., whether the act in question can be con- sidered to be necessary for the efficient management of the concern. It may frequently happen, however, that the usage in any particular pursuits may not be uniform throughout the different districts of the kingdom. With respect to mines, the usage is variable in many instances. For instance, some mining districts have adopted what, we shall pre- sently see, is the general rule of law upon the subject— that no partner can bind the firm by negotiating bills of exchange. On the contrary, in other places, and par- ticularly in the coal and lead districts of the North of England, such an authority has been sanctioned by long and continued custom. The question of usage, therefore, must also be considered with respect to the particular place in which the mining operations are carried on. Such a usage may also, it is presumed, be established by the distinct recognition of the partners, which may amount to an express stipulation, without reference to the usage of any district, provided the written terms of the society do not prevent its adoption (0). But in all such cases it should be seen that the particular mode of transacting the business is sufficiently sanctioned by the usage. A de- parture from the usual time or terms of credit, or an extraordinary exercise of any authority allowed only to a certain ascertained extent, may expose the creditor acting in disregard of the custom to the consequences which would have resulted, if the custom had not existed at all. It has been expressly decided, that partners in a mining adventure cannot bind each other, or authorize others to do so, by drawing or accepting bills of exchange, or by (o) Ex parte Bonbonus, 8 Ves. Camp. 478; Ex parte Nolte, 2G. & 540; Ex parte Bowness, 2 Maul & J. 295, Sel. 484; Duncan v. Lowndes, 3 SECT, I1ll.| LIABILITIES AND DUTIES OF PARTNERS. 427 giving promissory notes, in the absence of stipulation or usage. In the case alluded to, the plaintiff was the indorsee of a bill of exchange, or, as it was described in the declara- tion, a promisscry note. The defendant was a member of the Cornwall and Devonshire Mining Company, and the instrument had been drawn by the agent, and accepted by the secretary of the company, in pursuance of a resolu- tion of the directors. No deed of settlement or co-part- nership was produced. It was observed by Mr. Justice Bayley, that, upon this point, the only question which could be submitted to the jury was, whether companies instituted for similar purposes had constantly been in the habit of drawing and accepting bills; or whether it was absolutely necessary, for the purpose of carrying on the concern, that there should have been such a power. There was no evidence that such a power was usually vested in the directors of other companies, or that it was necessary for the purpose of carrying on such a concern. He thought such a power was not necessary for that purpose. The directors of such a company ought to take care to have ready money to answer all demands upon them. If they had not, he could not suppose that every person, who becomes a shareholder in such a company, understands that he is to be personally liable upon a bill of exchange, drawn or accepted by a director; for the effect of that would be to authorize the directors to pledge the credit and responsibility of the individual shareholders to any extent. If that was not the understanding of the share- holders, the directors could not have any implied authority to pledge the credit of the other members by drawing or accepting bills. The directors might bind themselves personally, and pledge their own responsibility, but not that of the other members. Mr. Justice Littledale said, that when the plaintiff took the bill, he had notice on the face of it that it was not an ordinary bill of exchange. It was then incumbent on him to inquire whether the 428 PARTNERSHIPS IN MINES. [CHAP. X. persons who drew and accepted this bill had authority, by such acts, to bind the defendant, the latter not appearing on the face of the bill to be a partner with those persons. In the case of an ordinary trading partnership, the law implied that one partner had authority to bind another by such means, because it was necessary for the purpose of carrying on a trading partnership; but it did not follow that it was necessary for the purpose of carrying on the business of a mining company. One of several persons jointly interested in a farm have no power to bind the others by drawing or accepting bills, because it is not necessary, for the purposes of carrying on the farming business, that bills should be drawn or accepted (p). Even if that were necessary for the purpose of carrying on a mining concern; though not for the purpose of managing a farm, it was incumbent on the plaintiff to have shown, either from the very nature of the company, that it was necessary, or, from the practice in other similar companies, that it was usual. Besides, this was in form a bill of exchange, drawn by the company upon them- selves. It was, therefore, in effect, a promissory note. He thought it would require more evidence to show that the directors of such a company had power to bind the other members by promissory notes, than by bills of exchange (q). It also sufficiently appears from the same case that, when an authority to draw or accept bills of exchange cannot be implied from the nature of the business, and is contrary to the presumption of law, it will be incumbent on the plain- tiff, in any action of the above description, in which the particular usage of trade, or an express authority, are relied upon, to prove the existence of that authority. As was observed by Mr. Justice Bayley, in order to establish (p) Greenslade v. Dower, 7 Barn. Macclesfield v. Baddeley, 7 M. & & C.635; 1 Man. & R. 640. W. 570; Thompson v. Universal (q) Dickinson v. Valpy, 10 Barn. Salvage Company, 1 Exch. 694. & C. 128; 5 M. & R. 126; Earl of SECT. I1I.] LIABILITIES AND DUTIES OF PARTNERS. 429 a lability, it ought to have been made out affirmatively, on the part of the plaintiff, that this was a company in which the directors were authorized to bind the other members by drawing and accepting bills (r). In another case, the partnership deed stipulated that the resident managing director of the mine should employ workmen, provide materials and machinery, and direct the workings according to the terms of the lease, subject to instructions from the other directors—that he should transmit monthly account of ores raised, sums expended, of debts and liabilities, and should not expend or engage the credit of the company for any sum beyond 50/. in any one month, without express authority in writing from the directors. It was held, that the manager could not bind the company by accepting bills of exchange (s). But a partner may be made liable, on bills of exchange, by his own conduct in any particular transaction. Thus, in a case where the defendant and three others had agreed by parol to form a mining company, and the mine was carried on accordingly, a bill drawn on the company was accepted by him as manager in his own name. It was held, that he was liable as a member of the company, although he professed to have authority which he did not possess (¢). In another case, it was stipulated in a deed of partner- ship of a colliery company, that if any of the partners should for any other purpose than the immediate use of the partnership draw or accept any bill of exchange in the name of the firm, the others might dissolve the partner- ship. There were also other special stipulations for in- crease of capital, and for meeting deficiencies by contribu- tions from the partners. The solicitor to the firm paid (r) See Thicknesse v. Bromilow, 17 L. J., N.S., C. P. 57. 2Cr. & J. 425. (t) Owen v. Van Uster, 20 L. J., (s) Brown v. Byers, 16 M. & W. N.S.,C. P. 61; Healey v. Story, 3 252; 16 L. J., N. S., Exch. 112. Exch. 3. See Heraud v. Leaf, 5 Com. B. 157; 430 PARTNERSHIPS IN MINES. [cHAP. x. some partnership debts at the request of the managing partners, and on their promise to give a bill in the name of the firm. The bill was afterwards given—and the other partners had full previous knowledge of the inten- tion to raise money. It was held, that the other partners were liable, either on the bill, or for money paid to their use (uz). A bill of exchange, directed to a mining agent, who was also a partner, was accepted by him in his own name, by procuration, on behalf of the company. He stated at the time of acceptance, that he would not be personally bound. He had no power from the company to accept bills. It was “held, that though he could not accept for others, he bound himself as principal (2). In another case, where the agent was not a partner, and had not signed by procuration, but only for the company, he was held to be personally liable (). In another mining case, the deed of association autho- rized the directors to create and issue new shares. They borrowed money to meet bills of exchange drawn on the company by their agent in America. In an action for this loan, it appeared that one of the shareholders had not signed the deed, nor had done any other act, except attending a special general meeting, at which resolutions were passed relating to the sale of the mines, in order to provide for the bills of exchange. This was held to be sufficient evidence for the jury to fix him with the liability, and that his attendance showed sufficient authority in the directors to enter into the contract on his behalf (z). A notice to admit a bill in evidence was given by de- fendant partners. The bill was described as accepted by an agent for them. It was held, that they could not (u) Brown v. Kidger, 3 Hurl. & 978; 25 L. J., Q. B. 119. N. 853; 28 L. J., Exch. 66. (z) Harrison». Heathorn, 6 Man. (z) Nicholls v. Diamond, 9 Exch. & G. 81; 12 L.J.,N.S.,C. P. 282; 154; 23 L. J., N.S., Exch. 1. The Sheffield Railway Company v. (y) Mare v, Charles, 5 E. & B. Woodcock, 7 M.& W. 574, SECT. III.] LIABILITIES AND DUTIES OF PARTNERS. 431 afterwards dispute the authority of the agent to bind them (a). But it is expressly decided, that without specific sanc- tion there is no power to borrow money, or overdraw bankers’ accounts, even for the most urgent occasions of the mine. A mining adventure has been often likened, as to lia- bility, to ships. But it has been held, that no sudden emergency will give any implied authority to an agent to raise money and pledge the credit of a company for its re- payment. Thus, in a case in Cornwall, where the mining wages were in arrear, and the workmen procured distress warrants on the materials of the mine, it was held, that the agent, in order to prevent execution of the warrants, had no right to borrow in the name of the company, and without their knowledge, a sum for payment of the wages, and that the company were not liable without ex- press authority. It was contended, that the agent was like the master of a ship, who had an implied authority to borrow money on the credit of the owners, if it be necessary for the prosecution of the voyage, and who may even pledge the vessel itself. But Parke, B., said that such a power was confined to the master of a ship, and to the acceptor of a bill of exchange, who accepts a bill, to save the honour of the drawer. The latter derived its existence from the law of merchants, and in the former case, the law, which generally provides for ordinary events, and not for cases of rare occurrence, considers how likely and frequent are accidents at sea, when it may be neces- sary, to get the vessel repaired, to pledge the credit of the owners, and therefore it invests the master with power to raise money, and by an instrument of hypothecation to pledge the ship, if necessary. If the cases were analogous, the agent would have power to mortgage the mine itself. The authority might have been given, but there was no (a) Wilkes v. Hopkins, 14 L. J., N. S., C. P. 225, 432 PARTNERSHIPS IN MINES. [CHAP. X. evidence of that, and there was no general authority to that effect (0d) It may be observed, that the authority of a mining agent is more like that of the agent or acting partner called the * ship’s husband ” (c), and that the mine owners resemble also the part-owners of a ship, which is held by them as tenants in common, and who can only dispose of their own shares (d). In another case, under the cost-book system, one of the largest. shareholders had taken the entire control of the affairs of the mine, and had opened an account with bankers, which was greatly overdrawn. He was not the managing agent. The bankers proceeded against the other partners. But it was held, there was no implied authority to pledge the credit of the company in that way. Lord Truro, C. J., said, that only certain in- dividuals had the management of mining companies, and, if one partner had the power, independently of management, to bind his co-partners, it would be incon- sistent with carrying on the mine. Any express authority was negatived, and there was no evidence of usage to that effect (e). This authority to borrow money may be enforced by the deed of settlement, but it will not be presumed from any general expressions of confidence. Thus, a deed contained a clause, that the affairs of the company should be under the sole control of the directors, and that three of them should for all purposes be competent to act. There were also powers to create new shares, and to alter the provi- sions of the deed by the vote of a special general meeting, called at the instance of the directors. Large sums were borrowed by the directors from a bank for the purposes of the mines. For several years these loans were entered in (b) Hawtayne v. Bourne,7 M.& Ad. 375. W. 595; 9 L. J., N. S. Exch. 224, (e) Ricketts v. Bennett, 4 Com. (c) Abbott on Shipping, p. 96. B. Rep. 686; 17 L. J., N. S., C. (4) Sims v. Brittain, 4 Barn. & P.17. SECT. III.] LIABILITIES AND DUTIES OF PARTNERS. 433 the books of the company, and appeared in the annual reports. It was held, that the general words and purport of the deed confined the concern to carrying on the mines by the large capital to be subscribed, and that the direc- tors, with full control over this capital, had no power to borrow more (f). But it is clear that the credit of a company may be pledged for wages and for articles supplied, at the instance of managers, for the purposes of the mine. Thus, a com- pany was formed in which the defendant took shares. Only two-thirds of the shares were taken. The defendant had never been at the mine, nor had attended any meet- ings; but he had signed, with other shareholders, two letters, requesting the directors to remove one of their body. The defendant was made liable in an action for goods ordered for the necessary occasions of the mine. Parke, B., said, the sole question was, whether there was evidence that the defendant gave authority to the di- rectors to pledge his credit to the plaintiff. If the case had stood merely on the fact of his being a shareholder, he should have thought it was not sufficient. But the letters showed he knew that directors were acting, and that he was taking a personal interest im the concern; and they were evidence of authority given to the directors to do what they did for his benefit. Whether he was deceived as to the amount of capital or not, there was proof he au- thorized the directors to do what is usually done, and if they dealt usually on credit, then he authorized them to do so. Either he knew it, or, not knowing it, chose to authorize the directors to proceed (¢). Neither can this right to incur debts for goods be re- strained, as against a creditor, by any private stipulation, (f) Burmester v. Norris, 21 L.J., C. 688; Maclae v. Sutherland, 23 N. S., Exch. 43. See The Vale of L. J., N. S., Q. B. 229; 3 E. & Neath and South Wales Brewery B.1. Joint-Stock Comp., Ex parte Lawes, (g) Tredwen v. Bourne, 6 M. & 1DeG., M.& G. 421; 21L.J3.,C. W.461; 9L.J., N. S., Exch. 290, B. FEF 434 PARTNERSHIPS IN MINES. [CHAP, X. unknown to him, between the partners. Thus, a partner had agreed with the directors of a cost-book company, that they should not deal on credit. The creditor had no knowledge of this. It was held, that the partner was not exempted from liability. The Court said, that any single partner is a general agent for another, as to all matters within the scope of the partnership dealings, and he has all authorities necessary for carrying on the partnership, and all such as are usually exercised in any business in which they are engaged. Any restriction by agreement is opezative only as between the partners themselves, but does not limit the authority, as to third persons who ac- quire rights by its exercise, unless they know of such re- striction (/). In a recent important case of a company (i), where the original capital was spent, new shares were created accord- ing to the deed of settlement. The wages of the miners fell into arrear for want of funds, debts were contracted, and proceedings commenced in the German Mining Courts against the mines by miners and creditors. The directors induced several shareholders to advance funds out of their own resources, which were duly applied. It was held, that in winding up the company, these advances should be allowed to be set off against the calls made on the share- holders as contributories. ‘Turner, L. J., said, that the acting manager of a mine, whether shareholder or not, had no power to borrow money for any necessary purpose, even for preserving the mine. But the cases had established a distinction between monies borrowed and debts contracted. The distinction was this: it was not according to the usual course of business to borrow money, and, therefore, the lender must look to the power of borrowing, and may recover over against the parties giving the authority. But (hk) Oatey v. Bourne, Hawkin v. (7) In re The German Mining Bourne, 8 M. & W. 703; 10 L. J., Company, 2 Eq. Rep. 983; 22 L.J., N. 8., Exch. 361. N.S., C. C. 926. SECT. III.] LIABILITIES AND DUTIES OF PARTNERS. 435 the shareholders are considered to have authorized the manager to incur expenses and debts for wages and goods. It would be unjust to make the shareholders liable for money borrowed without their authority, for they would be liable whether. the loans were expended on the mine or not. But there was no injustice in making them liable for wages and debts of which they derived the benefit. The general shareholders would have been liable to the miners and creditors. But there was another ground for the deci- sion. These companies were only partnerships, composed of a large number, but subject to the same rules as ordi- nary partnerships, except so far as the nature of the under- taking or the number of partners might modify those rules. In ordinary partnerships, the partners must bear the losses in proportion to their interests. No modifica- tion was necessary with respect to expenses and debts of that kind. All the partners were liable. The effect of the number of partners was only that the company must act by directors who were trustees. In case of breach of trust the loss must fall on them, but in other respects the general liability remains unaltered. The directors in this case had full power to continue the mines, and the ex- penses should fall on the shareholders generally. The engagements of a partnership of that kind cannot be mea- sured by the extent of the capital. The deed must be construed like other partnership deeds. New undertak- ings were not to be entered into after the full capital had been embarked. Was the concern to be stopped at the moment when the expenditure equalled the capital? That moment could not be ascertained (A). In the above case, it was also decided that interest should be allowed on the advances. It was held by Knight Bruce, L. J., that in all cases where a partner has pro- perly advanced money for the benefit of the partnership, even though without the sanction or knowledge of the (x) In re The German Mining Company, supra. FF2 436 PARTNERSHIPS IN MINES. (CHAP. X. other partners, interest was payable according to general mercantile usage. Turner, L. J., agreed to the allow- ance in this case, but he doubted in laying down any general rule on the subject. After the order had been made to wind up the affairs of the company, the Court had directed an action to be brought by the bank of the company for money borrowed. This action was brought in the Court of Exchequer (?), which was of opinion that the loan could not be treated as a charge against the company, but only as a personal lia- bility of the borrowing shareholders. The claim of the bank was then discharged, and the borrowing partners re- paid the money out of their own funds, and then claimed the amount as advances made for the company. The claim was allowed by the Master and Stuart, V. C., and also on appeal to the Lords Justices. It was proved, that the money borrowed had, like the other sums advanced, been applied to the necessary purposes of the mines. Turner, L. J., said, that although directors were agents, and could not bind these companies beyond the limits of their authority, they were also trustees, and were thus en- titled to be indemnified against expenses duly incurred by them in the execution of the trust. It made no difference whether the money was originally advanced, or was first borrowed and then repaid. This was consistent with the want of remedy of the lenders against the company. The right to indemnity was incident to the office of all trustees, and any provision to the contrary must be clearly ex- pressed. It was argued, that the directors should have conducted the business with proper reference to the capital. But the expenses of such a concern could not be foreseen, and the deed of settlement showed that the partners looked to the produce of the mines as a fund to meet the expenses. How were the expenses to be met if the pro- duce was insufficient? The directors were not bound to (7) Nom. Burmester v. Norris, cited supra. SECT. Ill.] LIABILITIES AND DUTIES OF PARTNERS. 437 call a meeting of the shareholders if they thought the advances would establish the company on a sound footing. They could not be charged for a mere error in judgment, especially when a discretion is reposed in them. Besides, the shareholders, who knew of the advances from the annual reports, might have called a meeting for dissolu- tion (m). In another case, a mining company had been estab- lished under the “ Joint-Stock Companies Act, 1844,” with certain borrowing powers, to be exercised by the au- thority of a general meeting. One of the directors had irregularly advanced money to meet necessary expenses. No previous sanction of the general shareholders had been procured—but the advances appeared in the reports and balance-sheets, which were approved at general meet- ings. The company was afterwards registered as a limited company, and was voluntarily wound up. It was held, that the director was entitled to rank as a creditor of the company, and to be paid next after the general cre- ditors (7). In another case, the banking account was kept in the name of five directors. Other directors who had inter- fered in the management were held to be liable (0). When a company has sanctioned the transfer of shares, and recognized the transferee, they cannot claim from him any calls which ought to have been paid by the former owner—even when the transferee is only a mort- gagee ( p). Shareholders cannot, by any agreement among them- selves, authorize a manager to recover calls from defaulters (m) In re The German Mining (0) Johnson v. Goslett, 18 Com. Company, 24 L. J.. N.S.,C.C. 41; B. 728; 3 Com. B. (N.S.) 569; 25 2 Eq. Rep. 983. L. J., C. P. 274; (in error) 27 Ib. (n) Lowndes v. The Garnett and 122. Moseley Gold Mining Company of (p) Watson v. Eales, 28 Beav. America, Limited, 2 Johns, & H. 294; 26 L.J., Ch. 361. 282; 38 L. J., Ch. 418, 438 PARTNERSHIPS IN MINES. [CHAP. X. in an action at law. There is no privity of contract, and no consideration (q). But when any liability between partners is sufficiently separated from the general partnership liability, an action at law may be maintained. Thus, three mining -partners had joined in a promissory note, which was discounted and applied for the purposes of the mine. One of them paid the whole amount—and he was allowed to recover against the other two partners (7). In cases of express stipulation it should also be seen, that the bill is drawn or accepted in the form, and by the persons mentioned in the deed of partnership. The agents of a company have no implied authority to do such acts, —and the authority may be confined to the directors, the secretary or some other specified persons. It should, in such cases, therefore, be distinctly shown, that the person exercising such an authority has had that authority duly conferred upon him. When an agent is properly authorized, he should exer- cise his power, not in his own name merely, but on the behalf of the partnership. In one case, a bill was drawn upon bankers who were directed to place the amount to the account of the Chilian and Peruvian Mining Associa- tion. The bill was signed by the agents with their own names only, and was countersigned by the secretary. It was held by Lord Tenterden, that, supposing the agents had authority to bind the defendant by their bills, they had not done so in this case, inasmuch as they had drawn the bill in their own names, and not as agents (s). A negotiable security should also be correctly signed under the style of the firm, or at least in such a manner as to show distinctly that the partner intended to bind the firm, and not himself personally only. Thus, in the case of (q) Hybart v. Parker, 4 Com. B. & N. 319; 27 L. J. Exch. 116. (N. S.) 209; 27 L J., C. P. 120, (s) Ducarry v. Gill, 1 Mood. & M. (r) Sedgwick v. Daniell, 2 Hurl. 450; 4 Car. & P. 120. SECT. III.] LIABILITIES AND DUTIES OF PARTNERS. 439 a promissory note signed for “ The Newcastle Coal Com- pany,” instead of “ The Newcastle and Sunderland Walls- end Company,” and made payable at a place where the company had no account, it was held, that the note did not bind the other partners (¢). It is clear from the preceding decisions, that the managing partner of a mine is presumed to possess, within the prescribed limits, full powers for binding the other partners. The same powers are vested in the manager or agent, in cases where he is not a partner ; for he is the delegated representative of all. Huis authority may be enlarged by stipulation, or by particular usage (x), recognized by the partners, but it cannot be limited by private contract among the partners, unless the creditor has knowledge of the restriction. It may also be stated, as a general rule, that, im mining partnerships composed of many persons, not strictly founded on the delectus per- sone, a non-managing partner will have no general im- plied power to bind the rest, even’ for the most necessary occasions of the mine; and that all the powers of that kind may be said to spring from the management (z). Even in partnerships existing under the delectus persone the authority may be confined to the management. In all these cases, the inquiry of the creditors should be di- rected to the fact of agency or management, which may be established either by direct appointment of the com- pany or by sufficient recognition of notorious acts. But there are mining concerns which are carried on by partners, few in number, subject to mutual selection, and therefore more closely connected by mutual confidence. In such cases, all or most of them may be actually engaged in the transactions of the mining affairs. There may be often no difference between firms of this kind and those engaged in any other distinct business as general (¢) Faith v. Richmond, 11 Ad.& & P. 489. Ell. 339. (w) Ricketts v, Bennett, supra. (u) Houghton v. Mathews, 3 Bos. 440. PARTNERSHIPS IN MINES. [ CHAP. X. partners; and those who are not working partners may not be the less liable to the general consequences of such a partnership. On the other hand, a partner, not usually engaged in the management, may have an implied authority to bind the firm. It might have been thought, even in these cases, that a distinction might have been observed between those partners who were actually engaged in the management of mines, and those who tacitly depended upon that manage- ment for the success of the undertaking; and that the ostensible and active managers only would be held capable of involving the credit of the whole firm. Relief might, of course, be obtained on the ground of fraud and collusion between a creditor and a non-managing partner. If the latter used the effects or credit of the firm for his own separate purposes as to secure a private debt, there would be sufficient ground for setting aside the transaction (y¥). If a mining firm of this kind has several sleeping partners, a creditor would be frequently liable to the imputation of fraud or of such gross negligence, as to amount to a fraud, in transacting the business of the firm with a non-manag- ing partner(z). Such transactions would, therefore, seem to require great caution, even when the partner is not acting in respect of a separate debt or liability. But, under proper circumstances, it is conceived, the general law must prevail. The public,are to be protected in their dealings with a partnership firm, and they cannot be ex- pected to inquire, on every particular occasion, whether the partner so assuming to deal with or charge the partner- ship property has obtained the acquiescence of his fellow adventurers, or what changes take place, from time to (y) Arden v. Sharpe, 2 Esp. 524; 4 Taunt. 684. Hope v. Cust, 1 East, 53; Shirreff v, (z) Baker v. Charlton, Peake’s Wilks, 1 East, 48; Greenv. Deakin, Rep. 80, 81; Sutton v. Gregory, 2 Stark. 847; Jonesv. Yates,9 Barn. Peake’s Add. Ca. 150. See South & C. 532; Ex parte Goulding, 2 Carolina Bank v. Case, 8 Barn. & C. Glyn & J. 118; Snaith ». Burridge, 427, SECT. I1I.| LIABILITIES AND DUTIES OF PARTNERS. 441 time, in the management of the mines, or in the conduct of the business. A creditor must be cautious, but he need not be curious. He must have ordinary prudence. Again, those who seek the advantages of partnership must abide by its inconveniences, and must endeavour to protect themselves by known stipulations. In this condition, and subject to the above remarks, any of the partners may purchase or sell goods(a), or pledge the partnership property (6); and, in general, the acknowledgment (c), promise (d) or undertaking (e) of any one will bind the rest; and a partner will also be liable to the consequences of an act of fraud upon other persons committed by his co-partner (f), even if the act of fraud amounted to a felony (g). But all such acts must be done with reference to busi- ness transacted by the firm, or to the contracts of the partnership (hk); and the act of one partner will not bind the firm, if the creditor received a previous express warn- ing from the other partners, that they would not consider themselves responsible; for the authority of a partner is only implied (7). With respect to the limits of responsibility as to time, a partner will not, except under peculiar circumstances, be liable for debts contracted by the firm before his connec- tion with it(&). On the other hand, in general partner- (a) Hyatt v. Hare, Comb. 383; Fox v. Hanbury, Cowp. 445. Woolcott, 2 Dowl. & R. 458; Rapp v. Latham, 2 Barn. & Ald. 795. (6) Rabav. Ryland, Gow. N. P.C. 182; Reid v. Hollinshead, 4 Barn. & C. 867. (ec) Cheap v. Cramond, 4 Barn. & Ald. 663. (a) Lacy.v. M‘Neil, 4 Dowl. & R.7; Pittam v. Foster, 1 Barn. & C. 248. (e) De Tastet v. Carrol, 1 Stark. 88. (f) Bond v.Gibson, 1 Camp. 185; Swan »v, Steele, 2 Esp. 523; Lacy v. (g) Stonev. Marsh, Ryan & Moo. 864; 6 Barn. & C. 551; 8 Dowl. & R.71; Ex parte Bolland, Mont. & Mac. 391. (h) 2 Barn. & Ald. 679; Wood v. Braddick, 1 Taunt. 104. (i) —— v. Layfield, 1 Salk. 292; Gallway v. Matthew, 10 East, 264; Willis ». Dyson, 1 Stark. Rep. 164; Vice v. Fleming, 1 You. & J. 227. (k) Shirreff v. Wilks, 1 East, 48 ; Catt v. Howard, 3 Stark. 5. 442 PARTNERSHIPS IN MINES. [cHaP. X. ships, a retiring partner will continue liable for debts sub- sequently contracted, unless he give notice of his ceasing to be a partner (J). Notice of dissolution inserted in the Gazette will be sufficient with respect to all parties who have not previously dealt with the firm (m). But express notice must be given to the original creditors of a firm (n); and it is usual to address circulars to all the correspondents of the firm. Questions of notice are facts to be submitted to a jury. In a mining case, an action was brought against a share- holder of a mine for the amount of a partnership debt. The defendant, it appeared, had told the creditor that he had disposed of his share to others, who would in future be the paymasters, and that he would no longer be re- sponsible. It was held, that the operation of the notice was a question for the jury (0). A mining partner may in many cases be considered to be a dormant partner. In such cases, he will be respon- sible for all the contracts during the time of his partner- ship, but not for contracts entered into after his retirement without notice, for third persons have never trusted upon his credit ( p). It has been held, that if, in contemplation of bankruptcy or insolvency, a partner retires from the firm, such an act will exempt him from future liability, if it be a bond fide transaction, and done without the fraudulent collusion of the other partners. This has been expressly decided with respect to mines, and it makes no difference if his share is disposed of to needy and irresponsible persons. In this case, the plaintiff and a person named Guppy and others were partners ina mine. Guppy, finding that (1) Parkin v. Carruthers, 3 Esp. (0) Vice v, Fleming, 1 You. & J. 248; Stables v. Eley,1 C.& P.614. 227. (m) Godfrey v. Turnbull, 1 Esp. (p) Brooke v. Enderby, 2 Brod. 371. & B. 71; 4 Moo. 501; Carter »v. (n) M‘Iver v. Humble, 16 East, Whalley, 1 Barn. & Ad.11; Heath 169. v. Sanson, 1 Nev. & M. 104. SECT. III. ] LIABILITIES AND DUTIES OF PARTNERS. 443 the concern was proving ruinous, agreed to assign his shares to a person who was admitted not to be in opulent circumstances. This person afterwards assigned half of the shares to another person who was admitted to be in indigent circumstances. Guppy gave notice to the plain- tiff that he had assigned his shares, and that, as to him, the partnership was at an end, and the style of the firm was changed, but not so as expressly to include the new partners. The plaintiff refused to recognize those persons as partners, and filed his bill for a dissolution, an account, and an arrangement of the rights of the parties. It was held by Lord Lyndhurst, then M. R., that Guppy had ceased to be a partner from the time of notice. He ob- served, it was said that the assignment was colourable, that is, that it was made for the sake of securing the assignor from future liability. If he made it with that view, he had a right so to protect himself from future liability. —It was alleged, that the assignee was not a responsible person.—Let it be so.—Guppy, for the pur- pose of securing himself, had a right to assign to a person not responsible. The only ground of objection would be, that, though there was an assignment in form, there was an understanding between the parties that the assignee should be a trustee for the assignor. There was no pre- tence for such a supposition in that case. He must hold, therefore, that, at all events, the assignment, coupled with the notice, freed Guppy from future liability (¢). In all such .cases, the shares must be sold bond fide. Any colourable transfer will not be sufficient (r). Any suspected trust will be minutely investigated. But it is not material that the vendor knows that a company is in difficulties (s), or that money has been actually paid for the transfer of the shares by the transferor, or that the (q) Jefferys v. Smith, 3 Russ. 158, (r) Ex parte Budd, 31 L. J., See also Parker y. Ramsbottom, 3 Ch. 4. Barn. & C. 257; 5 Dowl. & R. 138; (s) Ex parte De Pass, 4 De G. & ‘Taylor v. Shum, 1 Bos. & P. 21. J. 544; 28 L. J, Ch. 769. 444 PARTNERSHIPS IN MINES. [cHaP. X. transfer states falsely the payment of money by the trans- feree (t). A proprietor, under the cost-book system, had trans- ferred several of his shares to persons, who had taken no part in the affairs, and had paid no calls, for the purpose of raising the value of the shares in the market. It was held, that he was liable for the whole of the shares transferred, as well as for those retained (wz). When a company has been actually formed, and the shares have been taken, a shareholder cannot be freed from any liabilities of the company on account of any false representations made by directors on its formation (v). But he may maintain an action against the directors— and it is not necessary to show any direct personal repre- sentation (x). He cannot claim relief against other shareholders in respect of shares fraudulently issued by directors (y). Nor can he maintain an action against directors for money had and received for his use (z). II. It is unnecessary to say much upon the general duties of a partner. Honesty and upright dealings are especially required in all transactions between parties. The conduct of a partner shall correspond with the confidence reposed in him. It was a Roman maxim, In rebus minoribus socium fallere, turpissimum est(a). This maxim is so strictly adopted and enforced by our law, that no partner is allowed even to put himself in a situation which gives him a bias against the discharge of his duty. Thus, in a case where two persons had entered into partnership for dealing in calamine stone, or lapis calaminaris, one of them, a shopkeeper, was to (t) In re The Hafod Lead Mining (2) Clarke v. Dickson, 6 Com. B. Company, 35 L. J., Ch. 304. 453 ; 28 L. J., C. P. 225. (u) Wheal Emily Mining Com- (y) Ex parte Grisewood, 4 De G. pany, Cox’s case, 83 L. J., Ch. 145. & J. 544; 28 L.J., Ch. 769. (v) Henderson v. The Royal Bri- (z) Clarke v. Dickson, 27 L. J.,Q. tish Bank, 7 El. & B.356; 26L.J., 3B. 223; E. B. & E. 148, Q.B. 112; Overend, Gurney & Co., (a) Cicero pro Roscio, cap. 40. Limited, Re Oakes, 36 L. J.,Ch. 233. SECT. IlI.] LIABILITIES AND DUTIES OF PARTNERS. 445 take an active part in the concern, and to purchase the mineral from the miners, in whose neighbourhood he lived. Many of the miners were in the habit of dealing at his shop, receiving from him ready money for the stone, and paying for their shop goods afterwards, as they would have done to any other shopkeeper. But, in the year 1817 or 1818, owing, as he alleged, to the distress of the times, a new course of dealing took place; instead of paying the miners for the mineral with money, he paid them with shop goods, and in his account with his partner he charged him as for cash paid, to the amount of the price of the goods. Sir John Leach, V. C., decreed an account of the profit made by him in his barter of goods, and de- clared the other partner to be entitled to an equal division of that profit (5). In another case the defendants had issued a prospectus, with an account of the proposed capital and shares, the names of the directors and other officers, and announcing the prospect of immediate benefits from mines in actual working. A great many shares were applied for, but only a limited number was allotted, the defendants intend- ing, as was alleged in the bill, to keep the other shares, and make a profit for themselves, and if not, to reject them. The plaintiffs, having become holders of some of the issued shares, discovered that some of the persons named in the prospectus as directors had never acted, and had been entire strangers to the enterprise, and yet had assumed power to admit the other defendants as directors. The defendants had spent much money in the mines, though disposing only of part of the shares. There was no deed. The defendants refused to take the reserved shares. It was held, that they were liable for the money paid by the plaintiffs as having been got by fraud, and for a purpose not carried out (c). (b) Burton v. Wookey, Madd. & Sim. 289. See Aspitelv. Sercombe, Geld. 367. But see Glassington » 5 Exch. 147; Jarrett v. Kennedy, 6 Thwaites, 1 Sim. & Stu. 133. Com. B. 319; Chaplin ». Clarke, 4 (c) Blain v. Agar, 1 Sim. 37; 2 Exch. 403, 446 PARTNERSHIPS IN MINES. [ CHAP. X. SEecTion LV. THE PARTNERSHIP PROPERTY. ALL partners in mining adventures are, of course, entitled to the mines and their produce, and to the general partner- ship property, in the several proportions which have been respectively agreed upon. ‘These rights, however, are subject to the claims of any of the partners in respect of money advanced by them for the prosecution of the ad- venture, or on any other account which may justly render them the creditors of the concern (d). It is a general rule of law, that every creditor partner has a specific lien for his debt upon the partnership property (e). The shares of every trading partner constitute personal estate, and devolve, on the death of each partner, upon his personal representatives, in accordance with the well- known rule—jus accrescendi inter mercatores locum non habet. The same principles are equally applicable, if free- hold or copyhold estates are acquired by the partners out of the common funds, when the acquisition, as in the case of mines, is necessarily connected with the nature of their business, or the lands are used for the purposes of the society. In all such cases the executor or administrator will prevail, in equity, against the heir at law (f). Lands also acquired by a partner from his private resources may be declared partnership property, and will become personal property if there is an agreement that the estate shall be sold upon the dissolution (g). But if freehold estate is acquired by a partnership, even out of the funds of the (d) In re The German Mining Company, 24 L. J., N.S., C.C. 41; 2 Eq. Rep. 983. (e) West v. Skip, 1 Ves, 142; Ex parte Ruffin, 6 Ves. 119. (f) Darby v. Darby, 3 Drew. 495; 25 L.J., Ch. 371. (g) Townshend v. Devaynes, 1 Mont. Part. App. 96; 1 Rop. Husb. and Wife, 846, n.; Crawshay v. Maule, 1 Swanst. 521; Selkrig v. Davies, 2 Dowl. 280; Fereday v. Wightwick, 1 Russ. & M. 49; Phillips v. Phillips, 1 Myl. & K. 649 ; Broom v. Broom, 3 Myl. & K.- 443, SECT. Iv. | PARTNERSHIP PROPERTY. 447 firm, for other purposes than those of the firm, and as a simple investment (A), or if lands are declared to be liable to. partnership purposes for a definite period, commensu- rate, for instance, with the duration of the partnership term, and the purchase monies are not paid out of the funds of the firm, but from what is brought into the common stock (2), no conversion will, on a dissolution, take place, unless it is authorized by the express stipula- tion of the parties (k’. There is no survivorship with respect to partnership chattels, even at law (/). If real estate is purchased with the funds of the part- nership, and is conveyed to one of the partners under a “specific agreement that the estate shall be his own, subject to the payment of the purchase money to the firm, the lands will become the separate property of the partner acquiring them, and subject to the usual incidents (m). If lands or mines are acquired in the name of one part- ner only, he will be held to be a trustee for his co-partners according to their respective interests in the concern. Thus, John Burden and three other persons were part- ners, conducting the business of the Commercial Bank, at Newcastle, in the year 1790. In June, 1790, a lease of a colliery, called Hebburn, was granted to Burdon and three other persons, Peareth, Wade, and Wren, for thirty-one years as tenants in common, in equal fourth parts. Burdon died in 1792, and a bill was filed by two of his bank co- partners against his executors, praying that it might be declared that he took and held his one-fourth part of the colliery on account of himself and the bank partners, and for an assignment of the share accordingly. Several letters and accounts were produced as evidence to prove that he had considered himself as holding this share in (h) Bell v. Phyn, 7 Ves. 453; (k) Ripley v. Waterworth, 7 Ves. Randall v. Randall, 7 Sim. 271. 425; 2 Hov. Supp. 57. (i) Thornton v. Dixon, 3 Brown, (1) Buckley v. Barber, 6 Exch, 199; Balmain v. Shore, 9 Ves. 500; 164; 20 L. J., N.S., Exch. 114. Cookson v, Cookson, 8 Sim. 529, (m) Smith v. Smith, 5 Ves, 189, 448 PARTNERSHIPS IN MINES. [cHapP. x. trust for himself and the other bank partners. Lord Al- vanley, M. R., decided that such a partnership in the share had been fully proved; and that, as there was a sufficient declaration of trust in writing to satisfy the seventh section of the Statute of Frauds, Burdon must be declared as a trustee for himself and the other partners of the bank. The case was afterwards argued, on appeal, before Lord Rosslyn, who also held, that a partnership in the fourth share had been distinctly proved; and that, as purtners, the parties were entitled to the colliery without reference to the Statute of Frauds(z). He observed, there was merely an agreement to share profit and loss in the trade of a colliery, which did not at all affect the ownership of the land, which is often carried on for a great number of years without any estate in the land given to those who are to share the profits. It was, therefore, merely the case of an engagement, which might or might not be within the fourth section of the statute; and this particular case was not even within the fourth section, because it was to be executed immediately. But such agreements might be, and were daily, proved for and against the parties entering into them by any fair, competent and credible evidence— papers unsigned, not in the form required by the statute, were the best species of evidence ; parol declarations were admissible, and, if clear, consistent and intelligible, would prevail (0). It has also been held, that if the renewal of a lease has been obtained by any of the partners, with a view to pre- clude any other partners from sharing in the benefit of the renewal and in contemplation of a dissolution, the lease renewed under such circumstances of bad faith will be considered as having been obtained in trust for the existing partnership. In the case referred to, the plaintiff and defendant had (n) See Dale v. Hamilton, 5 Hare, (0) Forster v. Hale, 3 Ves, 696; 5 369; 16 L. J. N. S. C. C. 126, Ves. 308. See also Norway v. Rowe, 397. 19 Ves. 158. SECT. Iv. ] PARTNERSHIP PROPERTY. 449 been partners at will in the manufacture of glass, and in a freestone quarry. The defendant’s son was afterwards ad- mitted into the partnership, and he and his father obtained a renewal of the lease in their own names only, and with- out communicating the fact to the plaintiff, who, on the same day, received notice of their intention to dissolve the partnership. Sir William Grant, M. R., said, it was clear that one partner cannot treat privately, and behind the backs.of his co-partners, for a lease of the premises where the joint trade was carried on, for his own individual benefit; if he does so treat, and obtains a lease in his own name, it isas a trust for the partnership, and that a renewal must be held to have been so obtained (p). In another case, six persons carried on coal mines, as partners, from the year 1828, under a lease granted to all of them for twenty-one years. In 1836, one of the part- ners died, and his widow, the administratrix, became a partner, and so continued till the expiration of the lease in 1849. In 1845, two of the partners had obtained on their own account, and without notice to the other partners, a reversionary lease of the mines. In May, 1849, these two dissolved the partnership by written notice, and called for a sale of the common stock. On a bill being filed by the widow, it was held, that she had an interest in the renewed lease, and a receiver of her share was appointed (q). It was stated in the argument, in the above case, that there was no concealment from the lessor, and that he re- fused to treat with the defendants except for an exclusive grant to themselves. But when there has been no specific stipulation as to what constitutes partnership property, and there have been no acts from which any contrary intention might be pre- sumed, the partners will, on dissolution, preserve the pro- perty they have respectively brought into the joint concern, (p) Featherstonhaugh ». Fenwick, (q) Clegg v. Fishwick, 19 L. J., 17 Ves. 298. See Pitt v. Williams, N.S.,C.C. 49; 1 Mac. & G. 294. 2 Ad. & Ell. 419. B. GG 450 PARTNERSHIPS IN MINES. [ CHAP. x. and any renewal of a lease in the name of the original lessee will be for his own benefit. A lessee was entitled to two seams of coal, called the upper and lower seams, and took his colliery agent or viewer into partnership for the purpose of working the upper seam, as a distinct concern. There were no ar- ticles of partnership. About three years afterwards, the lease expired, and the lessee procured a renewal of the lease in his own name, as before. The partnership con- tinued, and both partners incurred a large expenditure, from the commencement of the partnership, in works for the upper seam, and also in sinking a pit for other coal, which was only just completed when the lessee filed a bill for dissolution, and claimed the exclusive benefit of the lease. The other partner stated, in his answer, that he incurred the expenditure on the faith that the partnership was to continue during the renewed term, as well as for the first term, unless dissolved by consent. But he could not prove any agreement to this effect ; and it was there- fore held, that the lease did not form part of the partner- ship property. The lessee was precluded, on appeal, from introducing a new article of partnership relating to a tentale rent to be paid to him (7). Tn taking the accounts in the above case, it was held, on the appeal, that the stock and plant were not to be taken at a valuation, as belonging to a current concern, but sold; as the plaintiff was not bound to carry it on. It was also declared, that the defendant was entitled to an allowance for the expenditure in sinking the new pit, which was for the benefit of the lessee-partner, and who was considered to have had sufficient knowledge of the expenditure and of its purpose. The mode of estimating that allowance was not decided, as the parties agreed to a decree in ac- cordance with the decision on the appeal, before the minutes were drawn up. (r) Burdon »v. Barkas, 3 Giff. 412; 31 L. J., Ch. 521. SECT. Iv. | PARTNERSHIP PROPERTY. 451 In these cases, as in many others, any undue or unrea- sonable delay will operate as a bar to equitable relief. Several partners had worked coal mines in freehold and copyhold lands under two leases. In 1818, an agreement was made between the surviving lessees under both leases, to become partners for the residue of the term granted by the freehold lease, viz., to November, 1831; with stipu- lations, that any new or renewed lease of any of the mines of the township, procured by any one or more of the part- ners, should enure for the benefit of all of them, and against the introduction of new partners, except by way of purchase. In 1825, the lessor procured a grant of a reversionary lease of the copyhold mines in the township for twenty-one years, and in 1829 he assigned it to some of the partners in exclusion of others, with a stipulation that, if he and the lessees should not agree for the renewal of the freehold lease, he would not allow those freehold mines to be worked until after the expiration of the lease of 1825. In 1837, he granted a lease of some other mines in the township to one of the partners under the agreement, and to another person, for twenty-one years. These mines were worked by the two lessees as a distinct colliery till the year 1841 under the name of the Bank- well colliery, when they ceased to be worked on account of the stipulation of the agreement of 1818 being en- forced by the other partners. They were not worked again till the partnership agreement was assumed to have expired; and their profits down to 1841 were brought into the partnership accounts. In 1846, nearly all the original partners had died. There had been various sales and other devolutions of shares, and the partnership was numerous. ‘The affairs of the partnership had been long managed by some of the partners, in exclusion of others. In 1846, when the lease of 1825 had expired, the five then managing partners determined to dissolve the partnership, and to exclude the others from any share in any new lease. This was known to one of the other partners, who GG2 452 PARTNERSHIPS IN MINES. [cHAP, X. was a plaintiff, in June, 1846, and who objected, but only proposed the addition of himself. The managing part- ners contended that, since the termination of the lease of 1810, the partnership had subsisted only at will; and they gave notice of dissolution for 30th of September, 1846. Meanwhile, the lessor of the freehold mines had acquired a renewed lease of the copyhold mines for twenty-one years; and the five managing partners had agreed with the same lessor for a new lease of both the freehold and the copy- hold mines, including the Bankwell colliery, for a further term of twenty-one years. They issued notices to the other partners of their intention to bid for the stock at the partnership sale, and the principal part of it was pur- chased by them. Accounts and releases were tendered to the other partners, who declined both. The new lease was soon afterwards executed, and the mines were worked by the five partners till the year 1855, when some of the excluded partners filed a bill in Chancery. The plaintiffs had always insisted on their rights, but had not taken any step for enforcing them till that time. It was held, that the new lease was taken in trust for all the partners, but that, having taken no active proceedings for so many years, the excluded partners were precluded from any equitable relief. No weight was given to the fact of the partnership having subsisted at will. Turner, L. J., said, it was more difficult for managing partners than for ordinary partners to secure the benefit of a new lease to the exclu- sion of co-partners, and the communicated intention to apply for a new lease would not have that effect. In con- sidering the delay and the acquiescence, the nature of the right and of the property was to be regarded. It was a constructive, not a direct trust, and the property was sub- ject to extraordinary contingencies, and could only be made productive by a large and uncertain outlay ; and the rules as to direct trusts and ordinary property did not apply. It had been shown, that the mines had not been explored to any such extent as to render their value cer- SECT. Iv. ] PARTNERSHIP PROPERTY. 453 tain, that faults had been met with, and the expense in- creased. Ifa ruinous expenditure had rendered the mines unproductive, the plaintiffs would have made no claim. Should they in justice be allowed to reap the benefit, when they could not have been made liable to the loss? It was true, the expenditure had been more than met by the profits, but these belonged to the lessees, unless the plain- tiffs were entitled to share in them; which was the question in dispute’(s). But when a partner is improperly kept in ignorance of events that are passing, delay will be no bar to relief. A lead mine, called Settlingstones, was worked by two partners, who were brothers, under a lease for twenty-one years, which expired in 1845. The mine was then worked by them as yearly tenants. One of the partners died in 1847, and the other only worked the mine so as to keep it going. No claim was made by the representative of the deceased partner. In 1850, the lessor gave notice to the surviving partner to quit, on the ground of insufficient work. Before the day of notice arrived, or soon after, he negotiated an agreement with the lessor for a new lease, on new terms; and he worked the mine on his own ac- count till the close of the year 1853, when he died. In 1851, a son and legatee of the first brother had filed a bill for the administration of his father’s estate, and praying that the mine might be worked under the direction of the Court. An answer was put in, from which it appeared that frequent applications had been made for an account and refused. All further proceedings were stayed by an order of Court. In 1854, the son sold his interest to the plaintiff, who immediately filed another bill to establish his claim to a share in the mine. It was held by Romilly, M. R., that the plaintiff was bound by the acquiescence of his vendor. But this decision was reversed on appeal. It (s) Clegg v. Edmondson, 22 Beav. 125; 8 De G. M. & G. 787; 26 L. J., Ch. 673. 454 PARTNERSHIPS IN MINES. [cHaP. X. was there held, that the conduct of the continuing partner precluded the notion of acquiescence, and that he was bound to disclose every fact which might enable the repre- sentative of the deceased partner to exercise a sound dis- cretion as to the course to be pursued, and that, having been kept in ignorance, the testator’s interest in the mine did not cease at his death (t). The projectors of a partnership will not be allowed to extort profit by assuming to be purchasers and vendors in the same breath. Thus, three persons agreed to purchase mines for 10,0002, for the purpose of establishing a joint- stock company for working them, and that the mines should be sold to the company for 25,000/., of which 10,0007. should be paid to the vendor, and the remainder divided amongst themselves and certain friends, whom they appointed directors and officers of the company. At a meeting of the staff so appointed before the formation of the company, it was resolved, that the company should purchase the mines for 25,0001, and a conveyance was made to the trustees accordingly. The whole sum was paid out of the funds of the company, and divided accord- ing to the agreement. But a suit having been brought, it was held, on demurrer, that the participators in the 15,0002. were liable to refund the whole sum (u). There is, on the other hand, hardly any more common occurrence in mining affairs than that of partners ceasing to contribute to the working costs, and remaining quite passive to the fortunes of the concern, as long as it re- mains unproductive or unpromising, and, as soon as the adventure begins to be successful, then urging their claims to share in the profit as partners. In a case decided by Lord Rosslyn (2), the plaintiff and defendant had been partners in a coal mine, under a lease, (t) Clements v. Hall, 24 Beav. 420; 4 Russ. 562. 8338; 2DeG.&J.173; 27 L.J., (z) Senhouse ». Christian, cited ” Ch. 349. 19 Ves. 157, 159. (u) Hichens vo. Congreve, 4 Sim. SECT. Iv. ] PARTNERSHIP PROPERTY. 455 with a right of renewal. The renewal was obtained, and the mine worked, by the defendant alone, and the bill was dismissed, on the ground that the plaintiff having waited till the concern appeared by the property embarked in it by the defendant to be profitable, keeping aloof while it was hazardous, had lost the equity he had by the renewal of his partner. Lord Eldon, in commenting upon this case, said it in- volved a doctrine with regard to mining concerns, upon which at least the Court would not refuse to act without great consideration. Speculations of that nature were very hazardous. There were persons who would stand by, see the expenditure incurred—if it turned out profitable, would set up their claim—if otherwise, would have nothing to do with it—and it deserved great consideration, whe- ther the Court would interpose, even by decree, much less on motion (y). There seems to be no doubt that the possession of the legal estate would make no difference in such cases, and that the Court would interfere against even the legal owners who had not participated in the expenditure, and would declare such owners trustees, as to the whole estate vested in them, for those adventurers who have carried on the mining operations (z). A similar doctrine has even been maintained at law. An estate was sold at a remote period with a reservation of coal mines; they were reserved, because no one would give anything for them. The application of machinery at length rendered them available, and the owner of the sur- face worked the coals after an enormous expense, and then the other party came forward. Upon the trial of the issue, which seems to have been directed by the Court of Chan- cery, it was strongly impressed on the jury by Mr. Justice Buller, that as the proprietor had stood by during the whole of the expenditure, a grant should be inferred (a). (y) 19 Ves. 159. (a) Adair v. Shaftoe, cited 19 Ves. (2) Forster v. Hale, supra. 156. 456 PARTNERSHIPS IN MINES. [ CHAP. x. Lord Eldon, however, though admitting the great know- ledge of Mr. J. Buller, with respect to mining concerns, held the direction to be wrong (b). The circumstances of this case are not fully detailed. But the direction of the learned Judge was probably considered bad on the general ground of there being an insufficient adverse possession against the owner of the mines(c). But the case is dif- ferent when a person is originally a trustee for himself and others claiming interests in the property. The legal estate vested in him may not be presumed to have passed from him. This would require a possession of the cestuis gue trust for twenty years, without any formal recognition of the title of the trustee. If such a possession has even subsisted for that period, it will be insufficient, if the acts of ownership can be properly referred to the acquisition of an equitable estate only, or did not necessarily demand an investigation of the title (d). It can only be contended that the conduct of the trustee has induced a sacrifice of his beneficial interest in the particular share to which he was originally and absolutely entitled. With that interest must also fall his right to hold the legal estate; and, under proper circumstances, it is conceived, that there can be no difficulty in holding the owner of the legal estate to be a trustee for those who have exclusively persevered in the enterprise. In a late case, it was provided in the deed of settlement of a mining company, that if the original capital was in- sufficient, the directors should call on the proprietors to meet and propose an increase of shares, or some other adequate means, and that if any instalments should not be paid within fourteen days, the shares should be forfeited. In 1826, the proprietors held such a meeting, and decided, that instead of making new shares, the instalments on the (b) Ibid. mer, 1 Lord Ken. 385. See also (c) Seaman v. Vaudrey, 16 Ves. Doe d. Milner v. Brightwen, 10 390. See Chap. IT. East, 583. (d) Doe d. Grosvenor v. Swym- SECT. Iv. | PARTNERSHIP PROPERTY. 457 old shares should be raised. A proprietor disputed the right to call for these instalments, and refused payment, offering to sell his shares at a certain price to the directors, who declined them. This negociation ended in July, 1827. In July, 1828, the directors ordered notice to be given to the proprietor that his shares were forfeited. A corre- spondence followed between the secretary and the solicitor of the proprietor respecting the sale of the shares, which ended in September, without effect. No further commu- nication occurred till November, 1837. The mines had been very unfortunate till the year 1836, when they im- proved, and soon became very productive. The affairs of the company had during its difficulties been very loosely managed, and a large arrear of instalment on the shares of a continuing partner had never been paid. In November, 1837, the excluded proprietor claimed his shares, and, on refusal, he filed a bill to recover them. But his bill was dismissed. The judgment was not founded on the conduct of the directors, but on the time of the institution of the suit. Knight Bruce, V. C., said, that the property was a mineral one, of a mercantile nature, subject to great fluc- tuation and many risks, requiring sudden outlays, produc- ing great profits in one year, and incurring great losses in the next. Of all properties, it most required the parties to be vigilant and active upon their rights. After a struggle with years of losses, a profit at last arises. Some parties had been found to contribute funds, but for nine years the plaintiff rendered no assistance, and claimed only when the concern was prosperous. This chasm was not in any way accounted for. There was no allegation of recent discovery, or of ignorance of what was going on (e). There is no custom, under the cost-book system, without express stipulation, to forfeit shares for nonpayment of (e) Prendergast v. Turton, 1 You. & Coll. C. C. 98; 11 L. J., N.S., C. C. 22. 458 PARTNERSHIPS IN MINES. [CHAP. X. calls. A lease of a mine in Cumberland had been procured by three partners, of whom the plaintiff was one, and it was agreed to work it on the cost-book system, as recognized in Cornwall. The calls of the plaintiff not having been paid, the other shareholders declared his shares to be for- feited, and he was removed from the management of the mine. A correspondence ensued, and, at last, after three years had elapsed, he filed a bill for a dissolution and an account, and for a receiver in the meantime. It was at- tempted to be shown by the evidence that the plaintiff had abandoned his shares, but without success. Evidence was then produced on both sides with respect to the custom of forfeiture, as the system existed in Cornwall and other places. It was clearly held at the Rolls, as well as in both Courts of appeal, that there could not be such a forfeiture without a special provision to that effect in the cost-book, or deed of settlement, signed by all the original partners. It was remarked by Turner, L. J., that the evidence for the defendants, which alleged the general custom, did not distinguish between custom acting by itself, and custom aided by agreements—and that the practice of the Stan- naries Court, in which the course was not to declare a for- feiture for unpaid calls, but to sell only as many shares as sufficed for the calls, and give the surplus to the defaulters, strongly confirmed that distinction. It was, however, held at the Rolls, that, as there was no specified term of partnership, there was a right to dissolve it at any time, and that the defendants had in effect declared the partnership to be dissolved by notice. The Master of the Rolls said, if the plaintiff had insisted on sharing in the concern till it was completely wound up, it would be difficult to deny his right to an account of subsequent profits. But he was not permitted to play fast and loose. The lapse of time would have been a sufficient bar to specific performance, and the case was much stronger in mining adventures. Accordingly, the partnership was de- SECT. IV. | PARTNERSHIP PROPERTY. 459 clared to be dissolved on the day of notice, and the rights of the plantiff were directed to be ascertained at that tome. It was also held, that the possession of the legal estate did not entitle him to any particular benefit. But this decision was reversed on appeal. Both the Judges of Appeal laid stress on the legal estate of the plaintiff. Turner, C. J., also said, the decree below seemed to have proceeded on the ground that, no time being limited for the duration of ~ the adventure, the defendants had full power to determine it, and that it was determined by the declaration of for- feiture. But the object of the declaration was to determine the adventure, not as to all, but as to the plaintiff alone, entitling the defendants to his share. Assuming, how- ever, that the declaration of forfeiture worked a dissolu- tion, it did not follow that the defendants were entitled to take the plaintiff’s share at its then value. In ordinary cases, dissolution was followed by winding up. No partner was entitled to take the share of another at its then esti- mated value, and, without going so far as to hold mining adventures as altogether trading partnerships, there was not so great a difference as to entitle the defendants so to take the shares. In the absence of special provision, the partners cannot take the law into their own hands, as against defaulters. Resort must be had to a Court of Justice. Possibly the course adopted in the Stannaries Court might prevail, but each case would depend on its own facts. He distinguished the case from that of Pren- dergast v. Turton. It was declared that the adventure was determined ; that an account be taken of expenditure and profits, and the sums contributed by all; that the plaintiff must allow to the defendants interest at 51. per cent. upon the excess of their expenditure beyond their proper proportion; that he must not dispute any bond fide ex- penditure of the defendants; that he must undertake to bear his share of the expenditure; that a receiver and manager be appointed, and the question of sale reserved 460 PARTNERSHIPS IN MINES. [CHAP. X. till the accounts were taken (f). This decree was affirmed by the House of Lords (g). It will be seen that, in the above case, there was an attempt to forfeit the shares summarily. That attempt having proved abortive, the partnership was put upon the terms of dissolution, and the accounts were necessarily taken to the period of actual separation. With respect to the interval for three years for presuming acquiescence, the correspondence and renewed claims of the plaintiff, as de- tailed in the evidence, precluded that presumption. Under such circumstances, it might be natural to give some im- portance to the legal estate. But when land is expressly acquired for the purpose of a trading partnership, the mere possession of that estate is deprived of much of its value; and there does not appear to be any sound distinction, in such cases of alleged or actual abandonment, between legal and equitable interests. In cases arising under regular deeds of settlement or of partnership, with proper clauses of forfeiture, there can be no doubt that if the provisions of the deed are in that respect well observed on the part of the continuing part- ners, a declaration of forfeiture would be conclusive (A). But, in other cases, much difficulty often arises. It has been seen, that a renewed lease procured from the lessor cannot alter the rights of partners as between themselves— not even, if the preceding lease is justly forfeited by mani- fest breach of condition—and by entry. Each case of alleged forfeiture of shares will depend on its own facts. So far as it may depend on acquiescence, it may be main- tained generally, that if the conduct of the defaulting partner has been such as fairly to lead to the presumption that he has abandoned the undertaking, and if the other (f) Hart v. Clarke, 24 L. J., (h) See Giles v. Hutt, 3 Exch. C. C. 1387; 6 De G. M. & G. 232, 18; 18 L. J., N.S., Exch. 538. See (g) Clarke v. Hart, 6 H.L. Cas. Re The North Hallenbeagle Tin 633; 19 Beav. 349; 27 L. J.. Ch. and Copper Mining Co., ex parte 615. Knight, 36 L. J., Ch. 317. SECT. IV. | PARTNERSHIP PROPERTY. 461 partners have been careful to act upon such presumption, and have refrained from all acknowledgment of him as a partner, the forfeiture may be as complete as under any stringent express condition. The lapse of time will be a necessary ingredient in such a case. But in the presence of actual events, it is probable, that the time requisite for such an operation might be much limited. On the other hand, it is possible to conceive so general an apathy in the partnership, as to require a larger interval to elapse before a partner can be said to have finally abandoned the concern. An abandonment of this kind is not strictly a forfei- ture. It arises from the refusal of a Court of Equity to recognize rights which appear to have been deliberately waived. When there is no express right to forfeit shares, the proper course for repudiating any defaulting partner is to file a bill for winding up the concern(i). A power for the continuing partners to bid at the sale will usually be given by the Court. If partners can be shown to have withdrawn from a concern under circumstances which would seem to exhibit an intention to defraud the creditors of the continuing partnership, they will still be lable; and the Court will either direct an account, or an issue at law, according to the nature of the case, for determining the facts (/). A mining partner cannot stipulate in a partnership deed to give his copartners the exclusive benefit of a mining lease, in the event of his bankruptcy, so as to defeat the claims of his assignees; notwithstanding that the same provision may be made in case of his voluntary with- drawal, and that his share in the other partnership assets may not be affected (A). It has been held, that the purchaser of a share in a (i) Clarke v. Hart, supra. (kt) Whitmore v, Mason, 2 Johns. (j) Anderson v. Maltby, 4 Bro, & H. 204; 31 L.J., Ch. 483. 423; 2 Ves. jun. 244. 462 PARTNERSHIPS IN MINES. [CHAP. X. mining adventure does not waive objections, to the title, by taking possession of the property, and acting as a partner, when the contract stipulated that a good title should be made by a specified day, and it appeared to have been the intention of the parties that the purchaser should immediately have the possession ({). The partnership documents are the joint property of all the partners. When they are delivered up for examina- tion by an agent, by direction of the shareholders, he can- not, as a partner, insist on their being returned without the consent of the others (m). In a suit for an account of dues, the Court will not order the documents to be produced, on notice, in the absence of the other partners (7). SECTION V. THE REMEDIES OF PARTNERS WITH RESPECT TO EACH OTHER. I. Iv is a general rule of law, that a partner cannot bring an action at law against his co-partner for work and labour performed, or money expended on account of the partnership (0), except in respect of a separate right, or contract, or for a sum found to be due upon the settlement of an account(p). A Court of Equity is the proper forum for all partnership accounts. Thus, an action was brought by a shareholder and ma- naging director of the Cornish Tin Smelting Company, (1) Stevens v. Guppy, 3 Russ. & C. 76. 171. (m) Atwood v. Ernest, 13 C. B. 881; 23 L. J., N.S., C. P. 225, (n) Lopes v. Deacon, 12 L. J., N. 8., C. C. 811. See Marquis of Bute v. Stuart, ibid. 140; Taylor v. Rundell, 11 Sim. 391; 13 L. J., N.S., C. C. 20. (0) Holmes v. Higgins, 1 Barn. (p) Smith v. Barrow, 2 T. R. 476; Venning v. Leckie, 13 East, 7; Coffey v. Brian, 10 Moore, 341; 3 Bing. 54; Sharp v. Warren, 6 Price, 132; Moravia v. Levi, 2 T. R. 483; Wells v. Wells, Ventr. 40; Henley v. Soper, 8 Barn. & C. 16; 2 Man. & R. 153; Winter v. White, 3 Moore, 674; 1 Brod. & B. 350. SECT. V. | REMEDIES OF PARTNERS. ; 463 as the indorser of two bills of exchange, against another shareholder, who was also an agent of the company for the sale of the tin, in the receipt of a regular commission, and an additional del credere commission. There was a count for money had and received. The defendant sold a quantity of tin to one Richard Conness, and drew the bills upon him which were accepted, and afterwards in- dorsed by the defendant to W. Mears, the actuary of the company, who indorsed them to the plaintiff. It was con- tended, that the bills were drawn by the defendant, not as member of the company, but in his individual character, to secure the payment of a sum for which he might be- come responsible. This argument seemed to be approved of by Lord Tenterden at the time. But, on afterwards delivering the judgment of the Court, he observed, that if the plaintiff could recover on those bills, it would be a re- covery by one joint contractor against another, and then the defendant would have a right to call upon the plaintiff for contribution. He had thought, during the argument, that the verdict taken on the count for the money had and received might be sustained. Upon further consideration, the Court thought that the defendant must be taken to have received the money, not in his individual capacity, but as a member of the trading company (q). But when goods are supplied by a company to an indi- vidual member, for his private use, an action will lie for goods sold and delivered against him (7). By a late act, 28 & 29 Vict. c. 99, an equitable juris- diction is given to the County Courts, in all suits for the dissolution or winding-up of any partnership, in which the whole property does not exceed 5001, There is a right of appeal to the Court of Chancery. II. If a partner can show such a case to the Court; as would authorize it to pronounce a decree of dissolution, he will, upon notice, be entitled to ask for the appointment of (q) Teague v. Hubbard, 8 Barn. (r) Davies v. Hawkins, 3 Maul. & C. 345; 1 Man. & R. 369, & Sel. 488. 464 PARTNERSHIPS IN MINES. [ CHAP. X. a receiver or manager (s), and one of the partners may be appointed, if his conduct has been free from imputation of misconduct or suspicion of insolvency (¢). It is the duty of all partners to combine in carrying on the concern in a practicable and effective manner. In mining adventures it may frequently happen that the part- ners so far disagree in their proposed mode of manage- ment as to impede the proper working of the mine. It is indispensable for the success of the undertaking that some regular system should be adhered to ; and if such a system cannot be amicably agreed upon, or if its proposed adoption or substitution become the source of contention and per- manent difference, or if the prosecution of the adventure is grossly mismanaged, there can be no doubt that the Court will immediately proceed to appoint a manager. It will make no difference if the partnership had been agreed to endure for a term of years (uw). In the case of Jefferys v. Smith, the defendant was an owner, and the sole manager of the concern. Different acts of misconduct were imputed to him. A bill was filed for a dissolution, and a motion was made for a manager to be appointed by the Court. An order for a receiver was accordingly made, and every owner was declared to be at liberty to propose himself as a manager. It was observed by Lord Eldon, that in his country, where there were fre- quently twenty owners of the same mine, if each was to have a set of miners going down the shaft to work his twentieth part, it would be impossible to continue working the mine. Must not a contract be implied that it was to be carried on in a practicavle and feasible way? If not, you destroy the subject altogether; it renders it impossible to carry it on (2). (s) Goodman v. Whitcombe, 1 (#) Wilson v. Greenwood, 1 Swanst. Jac. & W. 689; Crawshay v. Maule, 471; Crawshay v. Maule, supra. 1 Swanst. 495; Smith v. Jeyes, 4 (uw) Smith v. Jeyes, supra. Beav. 503; Holmes v. Bell, 2 Beav. (xz) 1 Jac. & W. 298. 298, SECT. v.] REMEDIES OF PARTNERS. 465 In the last case, the practice was carried so far as to order the appointment of a manager, simply with reference to the subject being a mine, and not only in respect of there being a trading partnership. But a motion for a receiver was refused, where there had only been want of co-operation, as distinct from interference (y). A motion for a receiver was also refused, in a case where the plaintiff claimed under some old leases which, he contended, were still in existence, and where he had not urged his claim till considerable expenditure was in- curred, and the mine became prosperous. The Court refused also to hear affidavits of title upon the motion, as in cases of waste; there was no misconduct alleged on the part of the defendant. Lord Eldon said, the de- fendant was a trustee for himself and all the adventurers who had not abandoned the concern, and had just as good a right to the possession as any of his fellow-adventurers. The only ground for a receiver was, that he was wasting the property, or excluding from the fair opportunity of interfering in the concern those who. were entitled with him to the benefit of the licence. There was no appear- ance of mismanagement (z). There were also mortgagees in the case, but the Court observed, that the mortgagees had nothing to do with the motion. They might enter as mortgagees; but the ap- pointment of a receiver could not prejudice that right; and the constant habit of the Court, upon such a motion, was not to look at mortgagees further than to take care that they were not prejudiced (a). It appears, however, the mortgagees afterwards took considerable shares in the mines, and then entered upon the mines and took possession, and continued to work them under the management of a person appointed by them. The remedies of a partner and a mortgagee were (y) Roberts v. Eberhardt, 2 Eq. (a) Ibid. 153. See Berney »v. Rep. 780; 23 L.J.,N.S.,C. C.201. Sewell, 1 Jac. & W. 647; Bochin »v. (z) Norway v. Rowe, 19 Ves. 144. | Wood, ibid. 419, B. HH 466 PARTNERSHIPS IN MINES.. ‘[CHaP. X. thus united in the same individuals, A bill was filed by the former managing partner against the mortgagee part- ners, alleging that the mines were worked in a very im- proper manner, and praying that an account might be taken, and that upon payment of what was due to the defendants in the present suit they might be ordered to deliver up possession, One of the defendants pleaded an agreement which had been entered into between the parties, by which it was, amongst other things, stipulated that the mortgagees should remain in full possession of the mining property, and that the services of the manager appointed by the defendants should also be continued upon certain terms, but that the plaintiff should have the control of the working part of the mine. The plea was allowed by the Vice-Chancellor, but, after much argu- ment, was overruled, upon the appeal, principally on the grounds that such a practice might keep from the know- ledge of the Court circumstances which might regulate its decision, that a bill cannot be dismissed by the mere agreement of the parties, and that the averments of the plea were not sufficient: and this decision was afterwards affirmed by the House of Lords(b). There was also another. agreement between the parties in 1819, which was not set forth in the plea. Answers were then put in by the defendants, and a motion made, on the part of the plaintiff, for a receiver. It was stated that the accounts were improperly kept, and the mines injured by mismanagement; that they would be much improved by judicious expenditure and working, and that he was altogether excluded from the superintend- ence of them. These statements of mismanagement were denied by the defendants, and the motion was ultimately refused. Lord Eldon said, the great difficulty he felt arose from not seeing upon what principle he was to in- terfere in the present stage of the proceedings to deprive (6) Rowe v. Wood, 1 Jac. & W.3'6. SECT. v. | REMEDIES OF PARTNERS. 467 the defendants of the possession of the mine, not only as mortgagees, but as partners, and when he must assume. that the agreements stated in the pleadings were binding until they had been set aside. If a man is mortgagee of a mine, and the mortgagor comes to complain of mis- management, the first thing that requires consideration is, what is a mortgagee of a mine to do, or what omission on his part may be called mismanagement? Suppose a per- son is mortgagee of a mine which is likely to be much improved by a large expenditure, if he were owner, he might speculate for himself as much as he pleased. But can a mortgagee be required to do that? Can he be re- quired to risk his own fortune in speculation, and to incur hazard in an adventure which is ultimately to redound to the benefit of the mortgagor? He apprehended that he cannot, and that at the utmost he is not bound to advance more than a prudent owner. So, taking it as the case of a partnership, with respect to mismanagement, he should like to hear to what expense a partner can be called on to go, if he happens to be a very large creditor of the part- nership trade. There must be clear mismanagement, therefore, of a particular and specified nature, if the case was to be put upon that. With respect to the circum- stance of the defendant being both mortgagee and partner, it was one which, if the facts were clear, deserved a good deal of consideration. As a mortgagee, he would have certain rights, and if he filled that character only, would be bound to account with the mortgagor in a particular and special manner; and it was no inconsiderable hard- ship on him, that he must account not only for what he has done, but for what, without his wilful default, he might have made. Asa partner, he would not be obliged so to account; and a question might arise hereafter, whether the account should be directed upon the principle of partnership only, or whether a decree could be framed, partly upon the principle of partnership, and partly, if he might so express himself, upon that of mortgageeship. If HH 2 468 PARTNERSHIPS IN MINES. [CHAP. X. a mortgagee chooses to become a partner, the manage- ment must be considered with reference to the benefit of the other partner, as well as to the rights of a mortgagor and mortgagee; and it would be difficult to make out that the mortgagee can wholly exclude his partner from interference in the partnership. This was not, however, precisely the kind of motion which ought, at least in the first instance, to have been made, particularly with refer- ence to the agreements (c). It might have been inferred from some portions of the above judgment, that the mortgagor-partner might have been suffered to take a partial possession of the mines, and to have assumed a part in the general management, without reference to the agreements which had been entered into. But on a subsequent day, the Chancellor, on delivering final judgment, observed, that the original connection between these parties was that of mortgagor and mort- gagee; and if a receiver or manager was to be appointed, in other words, if the possession was to be taken from the mortgagee, it must be on such grounds as the Court acts upon in such cases; and if it is not clearly shown, that the mortgagee is fully paid, and that almost by his own admission, the Court will not deprive him of the posses- sion (d). It was said that the mortgage-money must be understood to be paid. But although it might be very questionable whether some of the items in the account would be allowed when the cause came to a hearing, he could not say that nothing was due, and the Court must get to that extent before it could appoint a receiver. If they had been merely partners, and no rights had been created by the relation of debtor and creditor, the case would have been very simple; one partner cannot exclude another from the equal management of the concern; and (c) Rowe v, Wood, 2 Jac.& W. 13 Ves, 377, before Lord Erskine, 553. cited as decided by Lord Eldon, 1 (4) Quarrell v. Beckford, reported Jac. & W. 649. SECT. Vv. ] REMEDIES OF PARTNERS. 469 it is the duty of each to keep precise accounts, always ready for inspection, and, in short, to keep good faith towards each other. But whatever might have been their rights under the previous instruments, he was bound to look at the subsequent agreements, and consider them as valid, until they were got rid of by decree. If so, the rules as to partners could not regulate all their rights, because, under the last instrument, they had stipulated that whatever might be their original obligations, they would deal in the terms contained in those agreements. It had been said that the plaintiff quarrelled with those agreements, and was, therefore, not entitled to any benefit from them; but he thought the defendants were bound, without prejudice to the questions in the cause, to let him have the benefit of them, and, therefore, he had a right to have the control of the working part of the mine, until the equities were arranged. At present, he did not see his way to appoint a receiver; but he thought that the plain- tiff, subject to the equities which might be ultimately declared between the parties, had a clear right to insist that regular accounts should be kept of all receipts, pay- ments and transactions relative to the mine, and to have constant access for the purpose of inspecting the accounts; and also, that, subject to those equities, he had a clear right to control the working of the mines; and if he was impeded in the exercise of any of those rights, the appli- cation to the Court, after the other parties had been apprised of what the Court expected them to do, would be differently treated. The conclusions to be drawn from the above important case seem, therefore, to be, that partners standing in the previous relation of mortgagor and mortgagee, with respect to mines, may enter into an agreement which may be con- strued to control the legal consequences of that relation, and which may entitle the mortgagor-partner to contract and direct the working management of the mine; but that, in the absence of any such agreement, or if it cannot be 470 PARTNERSHIPS IN MINES. [ CHAP. X. supported as a binding contract, a partner will, in the capacity of mortgagee, be entitled to retain the full pos- session of the mine, and the entire management of the concern. In this situation he will not only be responsible, as a partner, for the proper conduct of the adventure, but he will assume the more serious situation of a mortgagee in possession. ‘When one partner only assigns his shares in mortgage, the mortgagee cannot, as in the last case, become entitled to the possession and control of the whole mine; for there are others who have interests in the concern, upon which the mortgagee has no claim. But he may demand and take possession of the shares mortgaged, and, unless re- strained by the particular stipulation of the partnership deed or agreement, he will thus become a partner in the concern. Ifthe assignment should produce a dissolution, he may be constituted the member of a new firm. In either case, he will be entitled to all the rights and pri- vileges which might have been claimed and exercised by the mortgagor. In case of mismanagement or miscon- duct by his co-partners, he may demand the appointment of a manager from the Court (e). A mortgagee of shares in a mining partnership is en- titled to the usual decree of foreclosure. As between the partners themselves, the shares will only be affected by such liabilities as are sanctioned by any specific agree- ment, existing and in force. In taking the accounts, the mortgagee is not entitled to ask for any account of profits paid or distributed before the filing of the bill, nor to contest any call made on partners, nor to question any previous management of the concern (f). In the case last cited, the partnership deed gave a right of pre-emption of shares to the other partners; and it was ordered that, in the event of absolute foreclosure, any of the other partners might redeem before a certain day. (e) Bentley v. Bates, 4 You. & C. (f) Redmayne v. Forster, 35 L. J., 182; 9L.J., N.S. Exch. Eq. 30. Ch. 847. SECT. V. | REMEDIES OF PARTNERS. 471 Of course, all securities on shares are liable to the rule in equity and in bankruptcy, that all the joint estate be- longs in the first instance to the joint creditors of the partnership. III. By the general law of partnership, a partner will, in many instances, be entitled to an injunction against his partner; as when the latter has become insolvent, and is receiving the partnership debts (g), or when his conduct is overbearing and oppressive (4), or when he applies partner- ship property to uses not warranted by the agreement (i), or when there is an execution against the partnership property for a separate debt (2), or when a bill of exchange has been improperly accepted, in order to prevent its nego- tiation (2). A Court of Equity will sometimes grant an injunction under circumstances which may not call for a dissolution (m). In the case of mines, an injunction will, of course, be obtainable, where the grievance is of a nature which may bring the complaining party within the ordinary rules of relief. But it would seem to be quite clear, that in no case would the Court proceed by injunction to restrain the actual operations of a mine. The consequences of such a step might be fatal to all parties, and the appointment of a manager would sufficiently remedy any cause of complaint which would arise to demand the interference by injunction. Even in cases where the title is disputed, the Court is re- luctant to continue an injunction which has been obtained, for preventing the opening of a mine, and it may be safely asserted, that if a mine has been actually worked for a length of time, and is in working condition, the Court (g) Williams v. Bingley, 2 Vern. (%) Taylor v, Field, 4 Ves. 396; 278. Bevan v. Lewis, 1 Sim. 376. (h) Charlton v. Poulter, 1 Ves. (1) Hood v. Aston, 1 Russ. 412. 429; 19 Ves. 148. (m) Charlton v. Poulter, 19 Ves. (é) Glassington v, Thwaites, 1 148, u.; Goodman v, Whitcomb, 1 Sim. & Stu. 124, Jac, & W. 592, 472 PARTNERSHIPS IN MINES. [CHAP. X. would not interfere by so summary a proceeding (n). In the case of Field v. Beaumont, it was observed by Lord Eldon, that to stop the working of a coal mine was a serlous injury (0). The same observation is true with respect to almost all mines. IV. The remedy of account between partners is usually decreed by the Court upon a dissolution. It is hardly yet settled whether, in general partnerships, a partner can obtain a decree for an account without praying for a dis- solution. Lord Eldon seems to have been of opinion that he cannot (p), and there have been contrary decisions on the subject (g). It is said, few occasions can arise in which it is desirable to apply for an account only, and not for a dissolution. In mining transactions, however, it may often be important to insist upon an account, without proceeding to a dissolution. In a case in the Exchequer, a bill was filed by the mort- gagee of certain shares in a colliery for an account, and for the appointment of a manager, without praying for a dissolution. It was urged in support of the bill, that the parties were to be considered as tenants in common of land, and that the case was governed by that of Jefferys v. Smith (r), where the Court interfered by appointing a manager without a dissolution being asked for. There can be no doubt that there was a trading partnership (s), for the mines were held under a lease for thirty-one years, for the express purpose of mining, and the deed of settlement evidently described the parties as comtemplating a com- mercial trade or business. It was objected, that on this ground, an account could not be directed, without pray- ing also for a dissolution. (n) Grey v. The Duke of North- umberland, 13 Ves. 236; 281. See Chap. II. (0) 1 Swanst. 206. (p) Forman v. Homfray, 2 Ves. & B. 829; Marshall v, Colman, 2 Jac. 17 Ves. But it was held by Lord & W. 266. (q) Knowles v. Haughton, 11 Ves, 168 ; Harrison v. Armitage, 4 Madd. 143 ; Loscombe v. Russell, 4 Sim. 8. (r) Supra. (s) See sect. 1. SECT. V. ] REMEDIES OF PARTNERS. 473 Abinger, C. B., that the rule only applied to strictly mercantile partnerships, and that the lessees were in the position of mercantile partners, not for all purposes, but only for the purposes of public convenience and justice. It would be hard to say, that partners should be obliged to put an end to all interests before they should be able to bring one another to account, and especially in the case of lessees of a colliery, disputing about their estate, that the party seeking a remedy should be compelled to sell his share (¢). It would appear, also, that if the parties had not been commercial traders, but only tenants in common, enjoying the profits of land, an account might have been obtained without praying for a dissolution, on the ground, that the managing owner is acting on behalf of himself and his co- tenant (uw). Thisis only pursuing the principle established in the case of Jefferys v. Smith (x). In a case, where it was alleged in the bill that the de- fendant was violating the partnership articles for the purpose of compelling a dissolution, it was held by Wigram, V. C., that the bill was not liable to a general demurrer for not praying a dissolution, and that the plaintiff might be entitled to accounts and other relief (y). But in another case, two solicitors, partners, had also carried on a coal mine, which they held in fee simple as tenants in common, as a joint concern. Disputes arose between them, and one of them continued to work the mine. The other refused to concur in working, and to contribute to the expenses. The managing partner filed a bill for an account and a receiver, but not for a dissolu- (t) Bentley v. Bates, 5 You. & C. 182; 9 L. J., N. 8., Exch. Eq. 30. (u) Ibid. (2) Supra. (y) Fairthorne v. Weston, 3 Hare, 387; 13 L. J., N.S., C. C. 263. See also Deeks v. Stanhope, 14 Sim. 57; 13 L. J., N. S., C. C. 453; Wall- worth v. Holt, 4 My. & C. 619; Taylor v. Davis, 4.L.J., N.S., C. C. 18; Richards ». Davies, 2 Russ. & M. 847; Miles v, Thomas, 9 Sim. 606; Richardson v. Hastings, 11 Beav. 17; 16 L.J., N.S., C. C. 322, 474 PARTNERSHIPS IN MINES. [CHAP. X. tion. Wood, V. C., said, that with the exception of Wynget v. Heathcote (z), cited from recollection of counsel, there did not appear to be any case in which the Court had appointed a receiver of mines, worked in partnership, without having before the Court a suit for dissolution. It was not now necessary to ask for dissolution in every case in which partnership relief is sought; but where a bill sought for an account, a dissolution must be prayed. Unless some special ground is raised, the general ac- counts cannot be taken without that prayer. In Bentley v. Bates(a), it was held, that the accounts of a mining concern might be taken without that prayer. But the difficulty would be enormous if the Court were called in, in all such disputes, to appoint its own manager. It might have to manage all the mines in the kingdom. ‘When a mining concern was held as land, as by two co- heirs, there was a partnership in the working only, and not in the land—and either of the owners might terminate the joint working. If one continued to work, he would: be Hable to render an account to the other, as in Denys v. Shuckburgh (6). If, on the other hand, there was a real partnership, any of the partners might determine it, and insist on a sale. In either case it would be proper to ask for a dissolution and winding-up of the concern, and for a receiver in case of disagreement. In the present bill, it was not clear in what way the plaintiff regarded the con- cern. The Court could not foresee whether it would, at the hearing dissolve the working partnership, or sell the whole fee simple (c). It was objected, in the above case of Bentley v. Bates, that the mortgagee of a trade could not be entitled to an account, as he only possessed a limited interest in the pro- perty, and his remedy was confined against the assignor (d). (z) Cited 4 You. & C. 187. (¢) Roberts v. Eberhardt, 2 Eq. (a) 4 You. & C. 182, supra. Rep. 780; 23 L, J., N. S., C. C. (b) 4 You.&C.42, supra; Chap. 201. IV. (4) Ex parte Burrow, 2 Rose, 255. SECT. V. | REMEDIES OF PARTNERS. 475 But it was held, that the mortgagee, even of a trade, might, under some circumstances, as in cases of the recognition or false accounts of the acting partners, be entitled to the remedy of account. With respect to its being a partner- ship in land, it was admitted that if the assignment had been absolute, the assignee might have filed his bill for an account against the co-lessee. It was justly observed, that the equity of redemption was an interest available only to the mortgagor, and those claiming under him, and that with respect to third persons, the title of a mortgagee as completely entitled him to equitable remedies, as if there were no equity of redemption at all, The mortgagee, therefore, of such an interest had exactly the same remedy against the co-tenants as the mortgagor. The accounts of a partnership will be taken by the master according to the directions of any agreement entered into by the parties; and in the absence of stipu- lation, the general rule is, that each partner is to be allowed against the other everything he has advanced or brought in as a partnership transaction, and to charge the other with what that other has not brought in, or has taken out more than he ought; and nothing is to be con- sidered his share but his proportion of the balance (e). The right of a partner to insist upon a dissolution, and the consequences of that step, have already been dis- cussed (f). In the case of a partnership already subsisting, the part- ners entered into a written agreement, which recited an apprehension that it would be competent for one partner to determine the partnership and bring the whole property to sale, and that the death of one partner would produce that effect, and which also recited a desire that their in- terests should be so far several, that the share of any partner should be transmissible to his representatives, and that the partnership interest should not be determined, (ce) West v. Skip, 1 Ves. 242. (f) Sect. 2. 476 PARTNERSHIPS IN MINES. [CHAP. X. and the entire property sold, without the consent of the majority in value, but each should be competent to sell his own share only; it was then agreed that each of them should hold to himself, transmissible to his own represen- tatives or assigns, an aliquot share of certain of the part- nership property, and that their joint holding should not be subject to the ordinary terms applying to partnership property, so as to entitle any one of them to a sale with- out the concurrence of such majority, or to dissolve the partnership, or so as to cause a total dissolution by the death of one. It was held, that this agreement did not intend that the representatives of a deceased partner should continue partners with the survivors, and contri- bute to the working of the colliery on their joint account, but only that no partner or his representatives should be entitled to a sale of more than his own share (). The agent of a mine had raised money to pay workmen by indorsing two promissory notes made in his favour by seven out of nine shareholders. The other two had refused to sign. At a subsequent meeting of the partners and creditors, it was decided to sell the mine, and the agent claimed as a creditor for the above money. — Part I. THE POOR RATE. Section I. COAL MINES AND RIGHTS OF WAY. I. By the statute of Elizabeth (a), competent sums of money for the relief of the poor were directed to be raised by taxation of every inhabitant, and of every occupier of lands, houses and coal mines in the parish. Coal mines are thus expressly made liable to the poor rate. It was observed on one occasion, that there was a very good ground for exempting other mines, as from the (a) 43 Eliz. c. 2, s.1. SECT. I.] COAL MINES AND RIGHTS OF WAY. 549 nature of working them they were liable to more hazard and expense than coal mines(d). It cannot be denied that coal adventurers may calculate with greater cer- tainty upon the actual existence of the mineral than those in search of the metallic ores. Coal is certainly found in a state of stratification, but it is an erroneous notion to suppose that, for this reason, it is always not only easily discovered, but easily produced. In remoter periods coal was produced near the surface, of adequate quality, in sufficient quantity, with great exactness, and at little expense. If the mine failed in its produce from causes proceeding from geological disturb- ances, or casual misfortune, the labours of the miner were only directed to another, and, perhaps, an untouched field. Such may still be the case in less exhausted districts. But in more recent times, and in those districts whose produce is the most valuable, the mineral must be sought for in deeper and more dangerous recesses, the labours of the miner become more extensive, more hazardous, and more costly, and the interruptions of nature, or those arising from the imperfection of human contrivance, are more difficult of provision. In the extensive coal districts of the North of England, an expenditure to the amount of 20,0002. or 30,000/. is very frequently required, previous to the actual working of the coal. The expense often far exceeds either of those sums, and a sum of even 200,0001. is, under some circumstances, scarcely sufficient to answer the demands of the adventure. A single accident may occasion a loss of 50,000/., and it may happen, after all, that the enterprise may become totally impracticable, or that the cost of production may exceed the revenue of the mine (c). The difference between a lease of mines and a licence to work mines has been often pointed out in the course of (6) Governor & Co. for Smelting 1 Black. Rep. 389. Lead v. Richardson, 3 Burr. 1341; (c) See 19 Ves. 159. 550 RATING OF MINES. [ CHAP. Xl. this work. A lease of mines or minerals confers upon the lessees an actual estate in lands, in respect of which they may bring an action of ejectment. There can be no doubt, therefore, that lessees of coal mines are liable as occupiers to the rates for the relief of the poor. On the other hand, a licence to work mines confers no actual estate in the mines themselves. The right of possession of the minerals only becomes vested in the grantee when they are severed from the freehold. This liberty to work does not neces- sarily exclude the similar rights of others. A licence, therefore, to work mines is a mere incorporeal heredita- ment, a right, a privilege. Property of this description is not, in itself, generally rateable; and it may thus be a question whether the lessor or the adventurers are liable to be rated. In one case of a licence to work mines, it was observed (d) by Lord Tenterden, that the adventurers had not the sole occupation of the mine. Lord Wynford also remarked, that all the adventurers took under the inden- ture was a licence to enter and dig for minerals; that then a division of the ore took place between them and the land- lord, and that this was the same as if, instead of working for wages, they worked on condition of being paid by a certain share of the produce. On another similar occasion, it was observed by Parke, J., that the grantor of a licence might himself be the ‘occupier by his agents (e). It must be observed, however, that these dicta were pro- nounced in cases of licences to work mines not liable to be rated, and in order to support the doctrine with respect to the liability of the lessor for the minerals reserved. This subject will be afterwards discussed. But it is quite dis- tinct from that under present consideration. In those cases the lessor was rated, not as the occupier of a mine, but as the occupier of land. It will be seen in the next (d) Rex v. St. Austell, 5 Barn. & (e) Rex v. Tremayne, 4 Barn. & Ald. 693. Ad. 162. SECT. 1.] | COAL MINES AND RIGHTS OF WAY. 551 section, that the grantor of a licence is not considered to be so far in the occupation of the mine as to be exempt in respect of his part of the produce. The present question is, whether the grantees of a licence to work coal can be properly considered the occupiers of a coal mine, with respect to its general produce. It has been seen in a former part of the treatise, that the grant of a licence to work mines confers an interest in lands, and that such an interest may become irrevocable and indefeasible by its being granted for a valuable con- sideration. It may also be incapable of being disturbed by the lessor or those claiming through him under a similar grant. The grantee of such an interest has, in such cases, an exclusive right to the possession of the mine against the lessor and all other persons, though he acquires no direct and actual interest in the mineral till it is severed from the. inheritance. He is, therefore, to all intents and purposes, the occupier of a mine. In a cognate case, the Trent and Mersey Navigation Company had entered into an agreement with several pro- prietors of limestone quarries, who agreed to deliver to them such a quantity of stone as the company should yearly direct, at a certain price ; and in case of neglect or refusal to do so, it was declared that it might be lawful for the company to enter and take away as much stone as they thought proper, paying for it after a reduced rate. The com- pany afterwards found it necessary, in consequence of the refusal of the proprietors, to enter and work the quarries, and they were rated for the property. The case was sent back by the Court of King’s Bench to the Quarter Sessions to ascertain whether there had been an exclusive possession by the company. Affidavits, however, were prepared, to the effect that no other person had ever worked stone there but the company. Lord Tenterden, in delivering the judgment of the Court, said, that the question had come before them under peculiar circumstances, and that no case on the subject had been discovered. The right of the 552 RATING OF MINES. [CHAP. XII. company was merely to get there what stone they might think fit; there was nothing in the contract to prevent the owner from giving to others also the privilege of getting stone in the quarry. The company, therefore, had not any sole and exclusive occupation, but a mere privilege, and, consequently, were not liable to be rated (f). There was no allusion in this decision to the distinction between a lease and a licence with respect to their con- ferring a right of possession or occupation. The grantees were not held to be liable on the ground that the licence was not shown to confer an exclusive right of occupation. If this can be shown, it is submitted, the adventurers will, in all such cases, be the proper parties to be rated. If such an occupation cannot be established, it would seem the lessor will be the person liable to be rated as the occu- pier; for it would otherwise happen that the mine could not be rated at all. We may now consider the mode of rating a coal mine. An act has been passed for regulating parochial assess- ments, and for establishing one uniform mode of rating throughout England and Wales(g). It was enacted, that no rate for the relief of the poor should be of any force, which should not be made upon an estimate of the net annual value of the property rated, that is to say, of the rent at which the same might reasonably be expected to let from year to year, free of all usual tenants’ rates and taxes, and tithe commutation rent-charge, if any, and de- ducting therefrom the probable average annual cost of the repairs, insurance, and other expenses, necessary to main- tain them in a state to command such rent. A particular form of making out rates is prescribed; the act is de- clared as not intended to prevent the usual composition for rates; and all lands and property liable to be rated may be entered upon and examined by the direction of the (f) Rex v. The Trent and Mer- C. 57. sey Navigation Company, 4 Barn. & (g) 6 & 7 Will. IV. c. 96. SECT. I.] COAL MINES AND RIGHTS OF WAY. 553 Poor Law Commissioners, in order to ascertain the proper valuation. This act has been amended by the Union Assessment Committee Act, 1862. It is declared (sect. 15), that the gross estimated rental shall be the rent at which the here- ditaments might reasonably be expected to let from year to year, free of all usual tenants’ rates and taxes, and tithe commutation rent-charge, if any; but that the provisions in the former act for defining the net annual value shall not be repealed or interfered with. It may be observed, in the first place, that the principle of rating enforced in this act has been always applicable to coal mines, so far as the letting is considered to be the true criterion of value. It has been distinctly decided that a coal mine must be rated at such a sum as it would let for, and not for the full annual value of the coals produced after deducting the costs of working, and that the sum must be calculated without reference to the money expended in rendering it productive (A). The actual rent paid to the landlord was never con- sidered to be a certain criterion of value (¢). In mines it is no criterion at all. The mine may be in its infancy, or in embryo, or it may be utterly exhausted of its trea- sures—crebris partubus exhausta (j). The adventure may be only in a state of conception, and destined to bring forth its fruits after the exhaustion of other fields, or after the labours of many long years, or it may be a “ losing concern.” The rent reserved by the lease may be payable during all this profitless period. Again, the receipt of a large fine, or the prospect of great expenditure, or unusual hazard, may have induced the lessor to accept a lower rent than is usual, or the rent may have become dispro- (h) Rex v. Attwood, 4 Barn. & C. (7) Petrarch, Dialog. St. Aug.— 277. The various reading “perturbation- (i) Rex v. Skingle, 7 T. R. 549; ibus’’ is not less applicable to the 1 Bott, 218; Rex v. Trustees of the present subject. Duke of Bridgewater, 9 Barn. & C.68. 554 RATING OF MINES. [ CHAP. XI. portionate from the ordinary course of affairs. All these circumstances show that the amount of rent is seldom, if ever, to be depended upon in calculating the amount of a rate. The tests fixed upon by decision, and confirmed by the recent statute, for determining the proper source of the rate, is to ascertain the annual value or rent which might be produced by letting the mine to other persons, with certain deductions, but without reference to the amount of money expended in bringing the mine into active operation. Previous to the late statute, it might have been a ques- tion in what manner the letting should be supposed to be conducted. Coal mines are generally held under leases. Was the lease to be considered as assigned, and the mine to go into the possession of the assignees of the term, or was the lease supposed to be surrendered or determined, and the owners to proceed upon a new arrangement? The first mode was adopted by the Quarter Sessions in the case of Rex v. Lord Granville (2), but it was justly doubted by Mr. Justice Parke, whether that was the correct principle on which such property should be rated. The latter mode was free from difficulty if the supposed new arrangement was to continue for the period producing the amount of annual value—viz. for one year. If not, there would arise the insuperable difficulty of ascertaining what duration of interest was to be granted to the supposed lessee, a cir- cumstance which would, of course, materially influence the amount of rent. Even before the late statute, therefore, it would seem that the valuation should be taken on the prin- ciple of annual lettings. Such a mode would not be always feasible in actual practice, because few occasions would justify the lessees in taking a coal mine for so short a period. But there is no difficulty in supposing such arrangements for the purposes of valuation: a “hypo- thetical tenancy” must be assumed (J). If this be correct, (x) 9 Barn. & C. 188. (1) See Reg. v. The West Middlesex Waterworks Company, infra. SECT. I.] | COAL MINES AND RIGHTS OF WAY. 555 the language of the statute is strictly consistent with pre- vious experience; and it is now quite clear that, for ascer- taining the amount of rate, all subsisting interests in the lease must be considered as at an end, and the landlord supposed to demise the mine in its actual and changing condition from year to year. In estimating the yearly value of a coal mine, the im- proved annual value of the property produced by the erection of works and buildings, or by the formation of general conveniences, is also to be included. It is not the mine only that must form an element of calculation, but also all the machinery, railways, staiths, buildings, and other property of a similar nature, the acquisition of which has been considered necessary for carrying on the mining operations, and which have rendered the mine itself of much greater value and importance. Every kind of property, in short, which can be considered to form part, not only of the coal mine, but of the colliery, must be properly taken into account. The whole property must be considered to be demised. But in case the mine is not liable to be rated at all for want of profits, it would seem, a distinction should be drawn between that which forms strictly part of the colliery property, and that which is only acquired for the general purposes of the adventure, and is not necessarily connected with it. Thus, the occupation of land may render the adventurers liable on that account only. But if the mine is rateable in itself, it will not be necessary to observe this distinction, for the land will be rated in estimating the profits of the mine. The rateability of mining machinery was decided by inference in the case of Rex v. Bilston (m); and it was expressly determined in another case which occurred soon afterwards. In that case, the lessee of a coal mine was rated in respect of several steam engines, and a railway, which were used for the efficient working of the mine. It (m) 5 Barn. & C, 851. 556 RATING OF MINES. [CHAP. XII. was held that he was properly rated. Mr. Justice Bayley observed, if the owner had occupied the mine he would have been liable to be rated according to the improved value of the property. If it be leased to a tenant who is to incur the same expenditure of erecting an engine, the owner will receive a less royalty; but as a greater quantity of coal will be raised, the tenant will be remunerated for his expenditure, and being the occupier, he was liable to be rated for the improved value (n). It will not be inquired whether the machinery be real or personal property, or liable to distress or seizure, or transmissible to heir or executor, or subject to any agree- ment between landlord and tenant (0). But the tenant will be entitled to a fair deduction for repairing and replacing the machinery and other pro- perty; for the annual value which is designed to be the basis of the rate is part only of the annual rent. The same principle applies to houses, or any other rateable property, although in unequal proportions. In one case, it was well observed by Mr. Justice Bayley, that some portion of the rent was to be set apart to form a fund for maintaining or reproducing the subject of occupation—a much less part, if any, of the annual rent of land is wanted for either of those purposes, and the whole, in some cases, or nearly the whole, in others, is annual profit or value; and that in the case of collieries also, a part of the annual rent must be appropriated to repair and replace the works and engines, and in that respect they were in the same situation as houses (p). In the above case, the rate was assessed upon two-thirds of the net yearly rent of several farms and lands, and upon one-half of the net rents of some houses and build- ings which seem to have been unconnected with the mine, (n) Rex». Lord Granville, 9 Barn. (p) Rex v. Tomlinson, 9 Barn. & & C. 188. C. 163. See also Rex v. Lord Gran- (o) Reg. v. Guest, 7 Ad. & E. ville, supra. 951. SECT. I.] COAL MINES AND RIGHTS OF WAY. 557 and also of the colliery. It was held, that the sessions were in general the proper judges of value, but if the proportions had been fixed by them by an erroneous rule, the Court of King’s Bench would interfere; but that in such a case the houses and collieries might be classed together, that the sessions were warranted in making a difference in the pro- portion of rating, and that it was impossible to say that the proportion fixed was not the right one. The annual value of a colliery, therefore, must mainly depend upon the produce of the mine, and the cost of pro- duction with the use of the machinery and other appur- tenances belonging to it. The clear annual proceeds arising from the sale of the coals must first be ascertained, after deducting all the current costs of working and ma- nagement, all usual tenants’ rates and taxes, the probable average cost of the repairs, insurance, and other expenses incident to the mine, the machinery, works, ways, staiths, buildings, and other property of the colliery. A deduc- tion should also be made for interest, in the form of tenants’ profits, for any capital invested in live and dead stock, or employed directly for necessary purposes. In districts where the mineral is subject to tithe, the tithe commutation rent-charge should be deducted. It may then be inquired what would be the amount of reasonable rent which a yearly tenant should pay for the whole colliery in order to secure to him a proper profit, and re- muneration for his risk and undertaking, and under the assumption that the mine will continue to be worked in a regular and workmanlike manner. This amount may often depend upon intricate calculation, and must be de- termined by persons of competent knowledge. The con- dition of the mine, its prospects, its liability to accidents and interruptions, the necessity of expenditure, and other special circumstances, may all form ingredients in the cal- culation. The amount of this rent will be the proper source of the rate. The following mode has been sanctioned by the Court 558 RATING OF MINES. [CHAP. XII. in the rating of gas companies, which may also be made applicable to collieries. The last account of the company was taken, to show the gross receipts and expenditure—the difference forming the net receipts for the year. From this amount were deducted: 1. A sum at the rate of twenty per cent. for tenants’ profits on the capital temporarily employed for the year; 2. A sum for tenants’ rates and taxes, the annual average cost of repairs, renewal and in- surance of the buildings, stations, and plant, as necessary to maintain them in a state to insure the receipts; 3. A sum for renewal of all the mains. The remaining sum was taken as that for which the works might reasonably be expected to let from year to year (q). Such is the mode of rating coal mines which yield such an annual profit, as might induce other persons to pay an actual rent for them. If no such rent could be obtained, the colliery will not be lable to be rated atall. It matters not how the profits are applied. They may be handed over, in part or in whole, to the landlord, or may remain with the adventurer. In one case, the lessees lost two and a half farthings on every ton of coals; the colliery was always a losing ad- venture, which they must have anticipated at the time of taking it; and the inducement to work it was to enable the lessees to obtain coal of their own from other lands. But it was observed by Lord Kenyon, that there had been a clear profit of the amount of the rent, 1,000/. a year, since the lease was granted ; that the landlord was certainly not liable; that the Court could not examine into the ob- jection—that the lessees had made an unprofitable bargain ; and, that it was sufficient to make them liable —that they were the occupiers of rateable property (r). In the above case there was a clear profit of the rent payable to the lessor. If there had not been a profit, (q) Reg. ». The Sheffield United C. 169. Gas Light Company, 32 L. J., M. (r) Rex v. Parrott, 5 T. R. 593. SECT. I.] COAL MINES AND RIGHTS OF WAY. 559 sufficient to have induced any other persons to pay rent for the mine, it has been seen, the colliery could not have been rated at all. It frequently happens, that rent is payable by persons similarly situated with respect to other mines intended to be worked, and that no part of the rent is ever realized by the adventurers. In such cases, the mine is of more value to the lessees than to any other persons ; and, it is clear, they would pay a higher rent than could be procured under any ordinary circumstances. But rent is not the criterion of value. For the amount of probable rent, under the statute, must be calculated without refer- ence to any exorbitant and fictitious value, which is given to property from the peculiar situation of the parties. It must be calculated from what might reasonably be ex- pected to be obtained from indifferent persons willing to carry on the mine (s). If the current expenditure, in general, of the mine ex- ceed the income arising from the production of the article, no rent could be obtained, except perhaps, under extraor- dinary circumstances, when the prospects and condition of the mine may be peculiarly favourable for future opera- tions. At any rate, the test will be, on all occasions, the amount for which the whole colliery would let, to indifferent persons, from year to year. It has been remarked before, that it is also a frequent usage to reserve a certain annual rent, in leases of coal mines, to be payable whether the mines be worked or nof, or whether any coals shall be obtained or not. When the coals are totally exhausted, and the mines cease to be worked, the subject of occupation no longer affords any annual value, and the subject matter of rating is gone (t). A similar principle will apply, when a mine, for which a rent is still payable, and which might be made productive, has partially or wholly ceased to be worked at the will of (s) See Rex v. The Birmingham (¢) Rex v. Bedworth, 8 East, 387; Gas Light Company, 1 B. & Cress. Rex v. Bishop of Rochester, 12 East, 506; 2 D. & R. 735. 358. 560 RATING OF MINES. [CHAP. XII. the lessees; for the owners of a mine are not compelled either to work it to a loss, or to make an imprudent or premature use of their property. Tt has been held, that when coals are taken from under two different parishes by the same pit or shaft, and there is, in fact, but one mine, worked by the same engines and machinery, and subject to the same general management, the adventurers are to be considered as the occupiers of mines in both parishes, and should be rated accord- ingly (). In such cases, therefore, the following mode of valuation would appear to be required. It should be first ascer- tained for what amount the coal in each of the different parishes or townships, which contain no shaft for raising it to the surface, would let for, with the use of the same machinery, and under the same general mode of manage- ment, as are enjoyed at the time of assessment. A similar amount should also be estimated, with respect to the coal raised in the parish in which the pit or shaft is situated, which will, of course, include the proper proportion of the improved annual value of the whole works and machinery which are used for the whole mine, and which are pre- sumed to be all situated in the same parish as the shaft. It should then be considered what would be a reasonable annual sum for any supposed lessee of the coal in each of the other parishes to pay for the liberty of availing himself of the common works, machinery and manage- ment for raising and vending his produce. This may easily be ascertained from the quantity of coal actually raised under the different districts. In each case, the amount of this annual sum should be deducted from the amount previously determined with respect to each dis- trict, and should be added to the like amount determined for the mine in which the pit, works and machinery are placed. The respective results will thus fix the amount (u) Rex v. Foleshill, 2 Ad. & Ell. 593. SECT. I.| | COAL MINES AND RIGHTS OF WAY. 561 payable to each parish; and due allowance will have been made for the situation and advantages of the works used for the whole mine (x). In some cases, the annual value of buildings and ma- chinery might require to be ascertained with reference to the rules adopted in the rating of water and gas com- panies, whose operations extend over various parishes (y). It may happen, however, that the coal raised in the adjoining parishes may belong to other proprietors, whose lessees may be required to pay an annual rent for the way- leave, or the liberty of bringing the coals through the lands of another proprietor. In such cases, the reason- able amount of such a rent should be estimated, and be deducted as an ordinary item of expense. If mines thus situated are worked by different lessees, and the way-leave rent is payable to any of the adventurers, the amount deducted should be added, in the manner described above. The reasons for this will appear below. But if the amount be not paid to the adventurers, of course, no addition can be made to the profits of the mine. In like manner, if the staiths, or any part of the works, way-leaves and waggon-ways, are situate in different parishes or townships, a similar course should be pursued, and the annual value should be properly apportioned. By the Act 17 Geo. 2, c. 37, when waste lands, which were formerly fens and marshes, are drained and improved, and the parish to which they belong cannot be ascertained, the occupier of any tenements, tithes and mines is to be rated to the parish that lies nearest; and, in case of dis- pute, the Court of Quarter Sessions, after notice to the (2) Ibid. 28 L.J., M.C. 185; Reg. v. The (y) Reg. v. The West Middlesex Sheffield United Gaslight Company, Waterworks Comp., E. & E. 716; — supra. B. oOo 562 RATING OF MINES. [CHAP. XII. parties interested, and to the parishes adjoining the lands, may cause them to be assessed as they shall think proper ; and their determination is to be final. The acts for the amendment of the poor laws in Eng- land and Wales contain several special provisions with respect to the boundaries of parishes (z). It was enacted in an enclosure act, that the several allotments should be deemed to be situate within the re- spective townships in which the ancient lands laid; but it was provided that the act should not affect the night of the owner of the coal mines under the moor. It was held, that the first clause only affected the allotments of the commoners, and not the coal mines, which were rateable in the parish in which they were actually situated (a). The soil of the shore of the sea and of navigable rivers, between high and low water-marks, belongs presumptively to the crown. It is, therefore, extra-parochial, and the mines under it will not be rateable, unless the presumption can be rebutted (6). The mines under the usual bed of the sea will also be exempt. II. We may here consider the rateability of way-leaves, under which term are included the liberties often granted in the underground workings of coal, and some other mines, to enable proprietors to bring their produce to the surface through the lands or mines of others, and which, in the coal districts of the North of England, are called outstrokes. It is a general rule, established by many cases, that no person can be rated as the occupier of a right, or any in- corporeal hereditament, because these subjects are inca- pable, in their nature, of occupation (c). This has been (z) 6 & 7 Will. IV. c. 7, ss. 24, Linacre, 36 L. J., Q. B. 41. 45; 7 Will. TV. & 1 Vict. c. 69, (c) Rex v. Nicholson, 12 East, ss. 2, 3. 330; Williams v. Jones, 12 East, (a) Rex v. Pitt, 5 B. & Ad. 565, 346; Rex v. Eyre, 12 East, 416; (b) Trustees of Duke of Bridge- Rex ». Bell, 3 Mau. & S, 221; Rex water v. Township of Bootle-cum- _ », Snowden, 4 Barn. & Ad. 713; SECT. I. | RIGHTS OF WAY. 563 expressly decided with respect to way-leaves, and the same principle is applicable to all property of a similar descrip- tion (d). But a distinction has frequently been made in such cases, when any actual interest in the land has passed to the lessees, which may give them a right to the exclusive occupation. A licence to work mines, it has been seen, may confer such an interest. The lessees will, in such cases, be rateable as occupiers under the statute. Thus, the Dean and Chapter of Durham granted cer- tain leases of lands for twenty-one years, reserving the right of granting waggon ways over the demised premises, on paying damages for the spoil of ground. They then demised certain waggon ways over the lands to the appel- lants who constructed the ways in a manner most conve- nient to themselves, and prevented all other persons but those authorized by them from using them. Gates were erected by the lessees which were locked, and only opened when the waggons were travelling. Lord Kenyon said, he agreed entirely with the opinion given in the case of Rex v. Jolliffe, last cited; but the present case was very distinguishable. The question was, whether the defendants were possessed of property rateable to the poor, and on that point there could be no doubt. It had been con- tended, that, because the Dean and Chapter could only grant a way-leave, therefore nothing more than a way- leave passed to the defendants; but, he said, they were not to inquire into the titles of the occupiers(I). Ifa Rex v. The Mersey and Irwell Na- 820; Rex v. Chelmer and Black- vigation Company, 9 Barn.& C.95; water Navigation, 2 Barn, & Ad. Rex v. Thomas, 9 Barn. & C. 114; 14, 18. Rex v. Undertakers of the Aire and (ad) Rex ». Jolliffe, 2 T. R. 90. Calder Navigation, 9 Barn. & C. (I) This is not strictly true in every case. The Court must look into the nature of a licence to see what interest is conferred by it, and who are considered the true occupiers. See supra, and also 9 B. & C. 118, per Parke, J. 002 564 RATING OF MINES. [CHAP. XII. disseisor obtained possession of land, he was rateable as the occupier of it. Without going through the different parts of the case which show an occupation of the ground by the defendants, it was sufficient to say, generally, that they clearly appeared to be the occupiers (e). A similar decision was established in the case of a barge- way which had been purchased, and used as a towing path. It was held, that this property was rateable according to the amount of the tolls(f). And the same principle has been uniformly applied, whenever there has been an ac- tual and exclusive occupation of any land in connection with an incorporeal right (). On the other hand, if a mere right of way is granted, without any specific or exclusive interest in the land, a mere incorporeal hereditament will be created, which will be incapable of occupation. As observed by a learned Judge, no person can be an occupier unless he has the ex- clusive right to enjoy some portion of the soil (A). But although the owners or lessees of a right of way or way-leave are not rateable, the lessors or owners of the land will undoubtedly be rateable as occupiers for the im- proved value which has accrued to the land from the grant and exercise of such privileges. Similar observations apply to outstrokes. These rights indeed can hardly ever be accompanied with the grant of an actual interest in the land, because the lands or mines, over which the rights are enjoyed, are generally demised to other persons. If, however, the same persons enjoy the right and the land, they will be liable to be rated as occu- piers in respect of the outstroke; for they will have an actual and exclusive interest in the land out of which the (e) Rex v. Bell, 7 T. R. 598. 5 Barn. & C. 466; Rex v. Rochdale (f) Rexv.The MayorofLondon, Waterworks Company, 1 M. & S. 4T. R. 21. 634; Rex v. Chelsea Waterworks (g) Rex». Milton, 3 Barn. & Ald. Company, 8 Barn. & Ad, 156. 112; Rex v. Macdonald, 12 East, (rh) 9 Barn. & C. 112, per Parke, . 324; Rexv. BrightonGasCompany, J. SECT. I. ] RIGHTS OF WAY. 565 incorporeal right proceeds. In other cases, the owner of the land will be liable to be rated. The principle to be adopted in rating rights of way, which run over different parishes, may easily be gathered from recent railway decisions. It is now established, after some hesitation, that the proper mode, in such cases, is to ascertain the actual rateable value of the land occupied by the railway in each parish by the ordinary rules of assess- ment. The rateable value of any part in any parish must be taken from the net earnings in that parish, ascertained by a comparison of the profits and outgoings arising in that parish, and not with reference to the whole railway as one concern, and by division among the parishes ac- cording to the distance traversed in each. But any ex- penses, wherever arising, which are necessary for main- taining the property in any parish at the rateable value, may be taken into account (¢). Section IT. MINES IN GENERAL. I. Ir has long been clearly settled, that all mines, ex- cept those of coal, are exempt from liability to the poor rate; for, coal mines being expressly mentioned in the Statute of Elizabeth, it was considered to be the intention of the legislature to exclude all other mines from its ope- ration, according to the well-known maxim of law, ea- pressio unius est exclusio alterius. Later judges would have held that coal mines were only specified by way of (i) Reg. v. The London, Brighton v. Kingswinford, 7 B. & C. 236; and South Coast Railway Company, Rex v. Milton, 4 B. & Ald. 112; &c., 15 Q. B. 314; 20 L.J., N.S., | Rex v. Barnes, 1 Ibid. 113; Rex v. M. C. 124; Reg. v. The Great West- Trent and Mersey Navigation Com. ern Railway Company, 15 Q. B. pany, 1 B. & C. 545. 380; 21 L.J., N.S.,M.C. 84; Rex 566 RATING OF MINES. [cHAP. XII. example, and not of exclusion(&). The supposed reasons for this exemption have been adverted to in the last section. Mines in general were thought to be of too precarious and fluctuating a nature to become liable to any imposition which might discourage enterprizes of such importance to the community. Mining speculations in search of the metallic ores are always attended with more risk of failure in actual discovery than those in search of coal. This kind of disappointment can seldom, if ever, occur in a coal adventure. The coal miner may, in general, ascer- tain not only the existence but the quality of his article, and may often calculate, though not always, with suffi- cient accuracy, the cost of producing the mineral as a vendible commodity. This difference in the character of the adventures may account for the distinction presumed to have been contemplated by the legislature of Elizabeth, though it has been shown that in some districts, and in more recent times, the coal adventurer might show equal grounds for exemption. It could, however, never have been contemplated by the Statute of Elizabeth to exempt mines carried on for the production of substances which are in general both easily found and easily worked, as clay, gravel and other minerals of a similar nature (J). Such, however, as we shall afterwards see, is the neces- sary consequence of the above construction of the statute. All mines, therefore, of whatever substances, except coal mines, are exempt from liability to the poor rate. But it will be shortly seen, that a remarkable distinction has been drawn, in certain cases, with respect to the dues payable to the lessor of such mines. In the first case on this subject, the adventurers were rated as the lessees of lead mines in Alston, Cumberland, and a distress had been made for the amount. On an action being brought, it was held without hesitation by (4) 1 M.& 8.617; 2.Q. B. 862. (1) See 2 Barn. & Ad. 73; Rex v. Carlyon, 3 T. R. 385. SECT. I. | MINES IN GENERAL. 567 the Court of King’s Bench, that the lessees were not rate- able (m). In another case, the lessees of several mines of iron ore and coal were rated in one assessment. It was held that iron mines not being rateable, and as the Court had no means of ascertaining the several proportions, so as to rectify the excess of the rate, they could do nothing else than quash the order of Sessions, which had confirmed the rate generally, and which was at all events wrong (n). In like manner, mines of any other mineral substances, except coal, will be equally exempt from liability. The construction of the statute having been established on the principle just mentioned, it was impossible for the Court to adopt any other rule of liability or exemption. It has, therefore, been consistently decided that mines of lime- stone (0), clay (p), and freestone (q) are exempt from lia- bility. The absence or amount of risk and uncertainty cannot be considered. The sole test of rateability in such cases will be, whether the article is worked by a mine. As was observed by Lord Tenterden, the Court must look to the mode in which the article is obtained, and not into chemical or geological character. If the commonest substances, therefore, are worked (7) by means of mines, there will be an exemption from all liability. It has, however, been long held that the lessor may in certain cases be rated in respect of his dues. As the cases which involve this doctrine are not quite free from obscurity, and are not unfrequently productive of doubt (m) Governor and Company for (p) Rex v. Brettell, 2 Barn. & Ad. Smelting Lead v. Richardson, 3 424. Burr. 1341; 1 W. Black. 389. See (q) Rex v. Dunsford, 1 Ad. & Ell. Atkins v. Davis, Cald. 318, 325. 568; 4 Nev, & M. 349; 1 Har. & (n) Rex v. Cunningham, 5 East, W. 93. 478. (r) 3 Barn. & Ad. 424, See next (0) Rex v. Sedgeley, 2 Barn. & Section. Ad. 65. 568 RATING OF MINES. [CHAP. XII. and litigation, it will be proper to take a concise review of the whole subject, as it stands settled by decision. The above doctrine was first established in the case of Rowls v. Gell(s). The plaintiff was lessee under the crown of all lead mines within Wirksworth, Derbyshire, with the lot or cope. All persons have a right, by custom, to search for and work mines in the district, on the payment of lot and cope, and on conforming to the local usages established with respect to the mode of working. The Jot is a thirteenth dish or measure of lead ore, dressed and made merchant- able, and cope is sixpence for every load, or nine dishes of lead ore. These duties were payable to the lessee of the crown, and he was rated for their amount, which, though very variable, in that year realised the sum of 5007. An action of trespass was brought by the lessee against an officer of the parish who attempted to recover the rate by distress. But it was held by the Court of King’s Bench, that the lessee was rateable, and that the action was not maintainable. Lord Mansfield, in delivering the judgment of the Court, admitted that lead mines were not within the statute of Elizabeth, but contended that he who received a stipulated benefit from the profit of them was not excusable; that the benefit was not a mere casual profit, but an annual revenue, if any, and very different from the casual profits of a manor, which were not annual, for there might be none for years. But if the mine produced profit to the miner, the lord’s share was certain, and an annual rent was paid for it constantly. The miner was obliged to pay certain proportions to the owner of the land. But as this obligatory payment was in respect to the land, the land- owner ought not to receive it clearer or neater than any other part of his estate, when he was at no trouble, expense or possible risk (I). (s) Cowp. 451; 1 Doug. 304; Rex v. Maddern, cited 3 T. R. 480. (1) As the cope in this case was the payment of a money rent, the lessee, according to the cases which profess to follow this decision, would, at any SECT. II. | MINES IN GENERAL. 569 The same point was decided in a similar case, in which the owners were rated for the fifteenth part of all the tin arising out of certain lands in St. Agnes, Cornwall, called the toll tin, and for one-twelfth part of the remainder, called the farm tin, or due. The order of Sessions, in favour of the rate, was confirmed (¢). ; These decisions were fully confirmed by a more recent case (wu), in which the doctrine was, for the first time, founded upon any intelligible principles. The defendants were rated in respect of the lot, toll and free shares of the calamine, or lapis calaminaris, to which they were entitled under a lease made to them by the owner of the land. The lessees paid a yearly rent of 210/. for the dues, and some other property held with them. The dues were described as payable in kind, and as consisting of one-fourth in the inclosed lands. It was held by the Court of King’s Bench, that the lessees of the dues were rateable. Lord Ellen- borough said, if rateable at all, the lessees must be rateable for property falling under the description of land. It might be doubted whether these lessees could have maintained trespass for the calamine. There appeared, however, to be a demise of a specific portion of the produce of land, or in other words, land itself, free from risk or uncertainty. Until the stone was raised, the lord might be considered as work- ing with the adventurers by the hands of the labourers, but, when raised, the lord’s share redounded to him. That constituted land, and might fairly be construed as such within the meaning of the statute, and was therefore under (¢) Rex v. St. Agnes, 3 T. R. 480. (wu) Rex v. The Baptist Mill Company, 1 Mau. & Sel. 612. rate, not be liable to be rated for it. But, as has been observed by Lord Ellenborough (5M. & S. 142), it was not necessary to mention this dis- tinction in the above case, as it was sufficient simply to decide that the action of trespass was not maintainable, without reference to the above assessment. Mr. Justice Bayley is stated to have said in one case (5 B. & Ald. 699) that it was decided in Rowls v. Gell, that the party was rateable for lot and cope. This is erroneous. 570 RATING OF MINES. [CHAP, XI. that description assessable in the hands of the occupier. My. Justice Le Blanc observed, that the construction of the statute had excluded all mines, except coal mines, and the reason given for the distinction was, that other mines were considered as matters of hazard at that time, and that the legislature did not mean to subject the occupier of such a species of property to taxation. It remained then to be seen what construction the decisions had put on the words * occupier of lands.” In determining this, the Court was not bound to follow the strict definition of land through all its consequences, and in every possible view in which it might be considered, and to decide whether trespass was maintainable. When a person receives, without risk, part of the produce extracted from the bowels of the earth, he is an occupier of land. Mr. Justice Bayley said, the soil belonged to the lord of the manor, and the persons working the mines were not tenants under him, but he had the actual occupation and possession of the land. The workers of the mines had, as a compensation for their labour and expenses, a certain part of the profits, and the owner of the soil had a share also, which was given to him, not in the character of landlord, but as his share of the immediate pernancy of the profits of the land. He considered him as having a qualified occupation, perhaps a more distinct one than the adventurers, who might be considered as servants to him, for they worked the land, to a certain extent, for his benefit, and were to pay him his share of the ori- ginal produce of the land. It was not doing any violence to the lease to consider the lessees under it as occupiers of land. In another case, the reservation was of one-eighth part of the tin and other ore to be raised within the limits of the set, the same having been first made merchantable and fit to be smelted and fairly divided. There was a covenant on the part of the adventurers to pay the same share in money at the election of the owner of the fee, at the market price; and it appeared that no part of the ore had ever been ren- SECT. 11. ] MINES IN GENERAL. 571 dered, but in lieu of it, one-eighth part of the money arising from the sale of all the ore. It was held by the Court of K. B. that the owner was rateable in respect of the dues, as the reservation was of part of the native mineral («). In another case, the render was of lead or other ore cleansed, dressed, washed, and made merchantable, and fit for the smelting mill. The mines were demised for a term of years, and not held under a licence as in the last case. It was held, that the lessor was liable to be rated for the dues as an occupier (y). It is now too late to dispute the soundness of the prin- ciple established by these decisions. But Lord Kenyon might well observe, in the case of Rex v. Parrott (z), that he would form his opinion upon the question when it arose again, even after he had approved of Lord Mansfield’s decision, in the case of Rex v. St. Agnes (a). It might well be urged, in the argument in Rex v. The Baptist Mill Company, that the cases should be reconsidered. As was observed by Lord Ellenborough (6), the Court had adopted a principle of refinement. It was said, the owners are rated, in such cases, not as the occupier of a mine, but of land. Let it be admitted that, before the mineral is severed from the inheritance, whether the lord may claim his share under a custom, or under the terms of an actual demise, he may be considered as the occupier of land, though incapable of recognition. But in that state it yields no profit to any one, and could not, under any cir- cumstances, because the subject of rateability. It only assumes a value, and confers a profit, when it ceases to be land, and passes, in the form of a strictly personal chattel, into the possession of the lord. In the Jatter condition, the mineral, as we shall afterwards see, might subject the owner to be rated as an inhabitant for his visible property. (z) Rex ». St. Austell, 5 Barn. & (z) 5 T. R. 593. Ald. 693. (2) 3 T. R. 480. (y) Reg. v. Todd, 12 Ad. & E, = (b) 5 Mau. & S. 141. 816; 10 L.J., N.S., M.C. 14. 572 RATING OF MINES. [CHAP, XII. But he is never rateable as the profitable occupier of land. Such is the strict operation of law. But the mind of Lord Mansfield, so fertile in evading the strict principles of law, conceived, that as the owner received his portion without risk or expense, he must be rated for the profits of land. The duty of fortifying the decision ‘by substantial reasons seems to have been left to succeeding Judges. The exist- ence of risk has been shown to afford no means of determin- ing the construction of the statute. The commonest minerals in nature are liable to be rated, if they are worked by mines. It had been decided, that such mines were not rateable under the statute, and it necessarily followed that all concerned in the adventure should partake of the ex- emption. The owner is described even by Lord Ellen- borough and Mr. Justice Bayley as working with the adventurers by the hands of the labourers. They are all in the occupation of a mine. The reasons assigned by Lord Mansfield are most unsatisfactory. The profits of a mine were considered by him as differing from the casual profits of a manor which might produce nothing for a considerable period, and which were therefore not rate- able. The case was that of a lead mine. It is unneces- sary to say that the profits of the lord from the prosecution of lead mines may be equally as variable as those of a manor. On the other hand, a landlord cannot be rated for his rent. It was said, indeed, that the delivery of the mineral was by way of exception and not of reservation, and that a rent cannot form part of the thing demised. The mineral demised is, in legal contemplation, very different from the proportion rendered. It is demised as land, but it is ren- dered as a chattel. The render of corn constitutes a strict legal rent subject to the remedy of distress(c). The corn, like the mineral, is rendered, after it has been severed from the freehold, and undergone the manual operations of the (c) Co. Litt. 142 a. SECT. It. | MINES IN GENERAL. 573 labourer. Personal service alone constitutes a valid legal rent(d). It will be seen presently, that, if the render had been of the mineral in a smelted state, or of a money pay- ment, the principle here contended for would have had full operation, and the landlord would not have been rated for his rent. This might well be termed by a learned Judge a subtle distinction (e). It might have been contended, and particularly in cases of licence, that the lord would still be liable even in a case of money payment; for it has been observed by Lord Kenyon, that the exemption of quit rents went upon the objection of double rating the same property in the hands of both the landlord and tenant (f ). Such an objection could not be urged in the present in- stance. It must be admitted, the whole distinction is exceedingly slight. Under all conditions, the adventurers pay a certain consideration for the right of mining to the lord, who, in return, permits the trial and partial ex- haustion of his estate. This consideration is, in point of fact, a rent. Since the above remarks were written, the rateability of toll tin, rendered in kind by custom, was lately brought before a Court of Error. It was urged, that the render under a custom could not constitute occupancy. But the Court, per Tindal, C. J., held, that the subject was con- cluded by the decisions, that the rules with respect to rating materially affect the value of estates, and it was in no cases more important to abide by previous decisions. But it was intimated, that, if the subject were new, it would be very questionable whether the occupier of mines of any kind was exempt (9). It would appear to make no difference in the rateability (d) Ibid.; Lanyon v. Carne, 2 (f) 1 East, 534, Saund. 165. (g) Crease v. Sawle, 2 Q. B. 862; (e) 4 Barn. & Ad. 169, per Taun- 111L.J.,N.S., M.C. 62. ton, J. 574 RATING OF MINES. [CHAP. XII. of the landlord, if the mine is worked under an exclusive licence, with a similar reservation. If he is liable in re- spect of his proportion when he is only considered to be in the possession of that part, @ fortiori he must be liable when he is in possession of the whole unsevered mineral (A). It might certainly be contended, that the grantees of a licence only acquire a liberty of working mines, and that the grantor still remains in the possession of the mine, and should be exempt as the occupier of unrateable property. This objection seems to have been entertained by Mr. J. Parke, in a similar case. But the expression was after- wards qualified by him, and such an exemption considered not to extend to dues(i). The grantor may, in legal con- templation, be the occupier of a mine, and may still be liable to be rated for the mineral reserved to him. His occupation is qualified only, and is distinct from the special occupation he is considered to retain in his particular por- tion. He is still the occupier of land yielding a certain revenue, though, as in the case of a demise, the land which is finally to be allotted to him as his share of the profits cannot be identified, any more than the land which is to produce the money rent(j). But the point is expressly settled by the case of Rex v. St. Austell. We may now notice the cases which are exempt from the application of the principle we are now discussing. It has been clearly decided that if a yearly rent, payable in money, be reserved upon a lease of mines, the lessor will not be rateable, because he cannot be considered to be the occupier of any part of the land. A lease was granted in 1805, by the trustees of Lord Crewe, of several mines of lead ore, and other minerals, with a reservation of the rent of 1007. There was also (k) Rex v. St. Austell, 5 Barn. & other grounds. See infra. Ald. 700. (7) See Rex v. Tremayne, supra, (i) Rex v. Tremayne, 4 Barn. & — arguendo. Ad. 162, This case was decided on SECT. 11. | MINES IN GENERAL. 575 reserved the usual proportion of lead ore which should be obtained ; but as no lead ore had been raised, no question arose upon that subject. A rate was assessed on the trus- tees. There was cited, in the argument, a resolution of the Judges of Assize in 1632, in answer to the question whether shops, salt pits and profits of a market were tax- able to the poor, to the effect that all things which were real and in yearly revenue must be taxed to the poor (h), and it was contended, that rents were only not taxable when the whole profit of the land was already taxed in the name of the tenant (/). But it was held, that the trustees were not rateable as not being occupiers of the property, and that, if they were rateable, every landlord might, by the same rule, be rated for his rent (m). In another case, several leases of mines of lead, and other minerals, had been granted to mining adventurers at yearly money rents, amounting to 2,600/. for one part of the term, and 2,400/. for the remainder. The trustees, under the will of one of the owners of the fee, were rated for an annual rent of 2,000/., paid by the lessees, in re- spect of their proportion of the property, namely, two- thirds, and also in respect of their being occupiers of the moors and wastes of the manor. The rate was confirmed by the Sessions, but it was held by the Court of King’s Bench, that the rent was clearly not the subject of rate, and that the rate was bad on the single ground, that it was a conjoint rate in respect of two things, one of which was not rateable (). If the amount of rent correspond with the quantity of mineral raised, there will still be no liability in respect of the rent. Several mines of manganese were worked by certain ad- (k) Dalt. Just. ch. 78, p. 235. 129. (2) Lord Bute v. Grindall, 2 H. (m) Rex v. Bishop of Rochester, Bl. 265; Eckersall v. Briggs, 4 T. 12 East, 353. R. 6; Atkins v. Davis, Cald. 315; (x) Rex v. Welbank, 4 Mau. & S. Holford v. Copeland, 3 Bos. & Pul. 222. 576 RATING OF MINES. [CHAP. XII. venturers, on payment of the sum of 1/. 15s. for every ton weight of the mineral raised during the term to the owner of the lands in which the mines were situate. The latter was rated for “manganese dues,” and the Court of Ses- sions confirmed the rate. But it was held in the Court above, that the rate could not be supported, on the ground that the lord was not the occupier of the soil, but only received a money rent (0). In another case, the appellant was the lessee under the Duchy of Cornwall of the toll tin, which is a render in kind. The mine was within the tin bounds, subject to the custom of the Stannaries, by which the right of working is vested in the owner of the bounds, subject to the cus- tomary toll. The appellant granted by deed a licence to work the mine, subject to a money payment. He had, in strictness, only power to grant the toll tin, but he assumed power over the mine. It was urged, that at any rate all his interest in the toll tin passed, in consideration of a rent, which had been always paid in money. On the other hand, it was contended that the licence was colour- able, and designed to avoid the rate. But it was held by the Court of Queen’s Bench, that it was not its province to infer fraud, when none was found by the Sessions, and that the appellant was not rateable ( p). We now come to another distinction, in a subject on which so much refinement has been displayed. It has been held, that when the reservation is not of part of the mineral in its natural state, but after it has undergone some species of manufacture, as, for instance, the process of smelting, the lessor will be exempt from liability in re- spect of this reservation in the same manner as if it had been a money rent. The reasons for this decision will appear from the judgment of Lord Ellenborough, cited below. It may be premised, however, that the reader (0) Rex v. Tremayne, 4 Barn. & per Le Blane, J. Ad. 162. See also Rex v. The Bap- (p) Reg. v. Crease, 11 Ad. & E. tist Mill Company, 1 Man.& 8.612, 677; 9 L.J., N.S., M. C, 38. SECT. 11. ] MINES IN GENERAL. 577 should be careful not to confound the process of washing and cleansing the ore with that of preparing it for the market in a manufactured condition available for the general purposes of trade. This distinction has been already pointed out. When the reservation is of ore dressed, washed and made merchantable, it is still a reser- vation of the mineral in its natural state; and the prelimi- nary process consists only in effectually separating it from the soil and other foreign substances, and does not in any manner change the inherent quality of the article. It is still, therefore, in this state, an identified portion of the land. This was the reservation in the cases of Rowls v. Gell, Rex v. St. Agnes, and Rex v. The Baptist Mill Company (¢), and the lord was, in these cases, held to be rateable. But, in the case of Rex v. The Earl of Pomfret (r), the reservation was to consist of one-fifth part of the best ore hearth /ead, and of all the slag, or slag hearth lead, that should be smelted from the ore to be raised in the mines ; and there was a covenant on the part of the lessees to deliver the fifth part as often as the quantity smelted should amount to four hundred pieces, or at the end of every four weeks, at the option of the lessors. The rate was imposed upon the latter, in respect of the duty lead. Lord Ellenborough, in delivering the judgment of the Court, observed, this was not a reservation of any part of the thing demised, nor of the mineral in its natural and primitive state, but of something of a quality, name and character entirely different, of a metal produced from that mineral by the laborious and expensive process of smelt- ing, in which the native mineral was mixed with another matter, viz., with coal or charcoal; and, by the effect of fire upon both, a metal is obtained, which is to be con- sidered, for this purpose, at least, as entirely different from either of the two, and rather as a manufacture of art and (q) See supra. (r) 5 Mau. & Sel. 139. B. PP 578 RATING OF MINES. [CHAP. XII. labour resulting from the use and application of these materials. The lease put the parties unequivocally in the character of landlords and tenants. It has been seen that in other cases the reservation was of ore fit to be smelted, and that it did not fall, therefore, within the operation of the preceding principle. The result, therefore, seems to be this—that all mines, except coal mines, are exempt from rateability, whether they are worked by lessees or the proprietor of the soil ; that when they are worked either under a lease, or under a licence, or in compliance with local custom, the landlord is rateable for his rent, if the render is of a proportion of the mineral in its natural condition, as an occupier of land ; and even if under the deed, or by subsequent agreement, he elects to take a money payment; but that he is, in no instance, liable to be rated as an occupier, if the reserva- tion is of part of the mineral in a smelted or manufactured state, or of a rent payable in money. II. Mines, in general, being thus exempt from rateability, it will follow that all the engines, railways, machinery, buildings and other property of a similar nature, necessary or proper for the effectual working of mines, and whether employed beneath the surface or upon the surface, are equally exempt; for they form, in point of fact, a property inseparable from the enjoyment of the mines themselves (s). It may be laid down as a general rule, that all the mining apparatus, which would have been liable to be rated if the mine were a coal mine, will be exempt in the case of other mines (¢). But there is a broad line of distinction to be drawn in defining the limits of rateability in other respects. When the ore or material has been washed and effectually sepa- rated from its native bed, and made merchantable, the (s) Rex v. Bilston, 5 Barn. & C. (t) See Sect. 1. 851. SECT, 11. | MINES IN GENERAL. 579 operation of mining is then complete. The mineral is ready for a process of manufacttre, and the property employed for all subsequent operations will be liable to be rated in the same manner as for any other description of property used in the arts. All smelting mills, therefore, furnaces and all the machinery, buildings and conveniences attached to them, will be rateable. This rate, however, must be assessed without reference either to the profits of the mine or of the business, but according to the fair annual value of the property, if it were to be let from year to year to indifferent persons for the purpose of carrying on the busi- ness, or assessed upon such a rent as the manufacturers would pay if the property was not their own. It is clearly established that no rate can be assessed upon the profits of trade (1). It frequently happens that a reservation of mineral is stipulated to be made free from all rates and deductions. It is hardly necessary to say that such agreements will only be available as between the parties themselves; and that the rate must be assessed upon the party legally liable to it. Of course, if a lessee under such circumstances refused to pay the rate, it would amount to a breach of covenant. III. Such is the law with respect to the rateability of persons in the occupation of mines, and of the lessor as an occupier of land. It may now be inquired in what cases the produce of a mine may be rated in respect of inhabitancy. By the statute of Elizabeth, the rate is also to be assessed. by taxation of every inhabitant, parson, vicar and others, as well as of every occupier. It has been generally considered, that the words “ in- habitant, parson, vicar and others,” include all those who possess property not coming within the several species of it (u) Rex v. The Birmingham Gas 2D. & R. 735. Light Company, 1 Barn. & C. 506; PP2 580 RATING OF MINES. [CHAP. XII. described in the following part of the same clause, viz., the clause with respect to occupation («). Thus, coal mines are rateable under the latter clause, and by its construction all other mines have been held to be entirely exempt. No question, therefore, of inhabitancy can arise with respect to these. We have seen, however, that a lessor or owner may receive a render of—first, a portion of the mineral in its natural state; secondly, a part of the mineral in its manu- factured state; or, thirdly, a money payment. Now, it has been shown that, by the first mode, he will be rateable under the latter part of the clause as an occupier of land, and that by the two latter modes, he is not rateable as an occupier. It has never been expressly determined that he would be rateable as an inhabitant for the second mode; but there does not appear to be any reason for supposing that he would not. Inhabitants are rateable in respect of their visible personal property in the parish. When the mineral is delivered to the lessor in a manufactured con- dition, it constitutes property of that description, and is rateable accordingly. It might be objected, indeed, that it is a rent, and that the rating of it would infringe upon the general principle that a landlord cannot be rated for his rent. But this principle, it has been seen, was incapable of protecting him in the question of occupancy. The rating of an ordinary rent would be a double taxation; in this instance, it would not. The mineral may be considered to be rateable without reference to its being a rent, but merely as visible property. When by the third mode the reservation is of a money rent, there will not be such a description of property as to render the lessor liable as an inhabitant. It has been asserted, in a book of very general re- ference ( y), that it was held, in the case of N ightingale v. (x) Burn’s Just. Chitty’s Ed. 4, D.& R. 424. 109; Rex v. The Inhabitants of (y) Burn’s Just. Poor, 133; North Curry, 4 Barn. & C. 953; 7 Chitty’s Ed. SECT. It. ] MINES IN GENERAL, 581 Marshall (z), to be a valid custom, to rate all persons in a parish according to their apparent ability, without regard to the visible property in their possession. This is quite erroneous. The point in that case was confined altogether to the right of voting at vestry meetings, under the 58 Geo. ITI. c. 69, s. 3; and it was expressly declared by Lord Tenterden, that he gave no opinion as to the validity of the rates. Much importance has occasionally been attached to the growth of custom in rating property; and the practice seems to have been expressly countenanced in one case by Lord Mansfield. But, it is submitted, the law upon this subject was much more correctly stated by Mr. Justice Aston on the same occasion, who observed, that, if upon the general question it should turn out to be the law that personal property is rateable, it must then be rated, though it was never rated before (a). It cannot, surely, in any case, be contended that custom can control an express act of parliament. But it must be observed, that every rateable inhabitant must be actually resident within the parish in which he is rated; and that a resident partner will not render a non- resident partner liable for his share (b). A residence will only be constituted where the person eats, drinks and sleeps, or where his family, or his servants, eat, drink and sleep (c). IV. The statute of Elizabeth applies to the whole king- dom of England and Wales. But it frequently happens, that, in providing for the particular exigencies of a district or town, a different system of rating is permitted by a special act of parliament. One rule of construction ap- plicable to these local acts is thus expressed by Lord (z) 2 Barn. & C. 313. (ec) Rex v. Nicholson, 12 East, (a) Rex v. The Overseers of An- 342, per Le Blanc, J.; Rex v. The dover, Cowp. 550. Inhabitants of North Curry, 4 Barn. (b) Rex v. Gosse, 7 Barn. & C. & C.958; 7D. & R. 424. 60; 9D. & R. 759. 582 RATING OF MINES. [ CHAP. XII. Tenterden :—‘ When we find a deviation from the lan- guage in the statute of Elizabeth, the presumption is, that the deviation was intended, and that a different system was thought better” (d). When mines or quarries are subject to tithes, either by a local act of parliament, or by local custom, the tithe, if payable in kind, will be rateable to the poor, even if it afterwards be commuted for a money payment, by the voluntary act of the parties, or under the Tithe Commu- tation Act(e). But an act of parliament may, of course, either direct the tithe to be free from all rates, or may impose them upon the tithe-payer. It may be doubted whether an ancient money composition for tithes is gene- rally rateable in such cases. Section III. QUARRIES. THE construction of the statute of Elizabeth does not exempt minerals, but only mines, from liability to the poor rate. It follows, therefore, that, if minerals are obtained in any other manner, the lessee or owner will be liable as an occupier of land. The rarest and most valuable metals and minerals may thus be rated in the same manner as the commonest mineral substances, as limestone ( /), slate (g) and clay (%) (1). (@) Rex ». Hull Dock Company, (f) Rex». Alberbury, 1 East, 534. 3 Barn. & C. 516. (g) Rex v. Woodland, 2 East, 16. (e) 6&7 Will. IV. c. 71, s. 69. (hk) Rex v. Brown, 8 East, 528, (I) In the lead districts of the North of England, and in other localities, it was formerly a common practice to attempt the discovery and working of metalliferous veins by accumulating a quantity of water at the surface, and then suddenly causing it to discharge itself. This operation, technically called *“ hushing”’ in the North, carries off the surface soil, and not only dis- SECT. III. | QUARRIES. 583 The difference between a mine and a quarry must, in general, be sufficiently obvious. But difficulties may some- times arise in proportioning the amount of rate, when the produce is obtained by both means. All such questions are for the consideration of the Court of Quarter Sessions ; and the Court of Queen’s Bench will always return a case to the Sessions, if it be not sufficiently expressed whether the place in question is a mine or a quarry; and, if the point is doubtful, it is not sufficient for the case to describe the works, and leave the conclusion to the Court above. The Sessions must find the fact—not furnish the evi- dence (2). In one case, a rate was assessed upon the Earl of Dudley, as the owner and occupier of limestone works. The strata were stated to crop out or terminate frequently at the sur- face, and to deepen in the opposite direction. Several workings had been effected by daylight or open work, and afterwards the continuing strata were worked at from forty to fifty yards below the surface, by pit shafts, steam- engines and other apparatus suitable for working coal, ironstone and other minerals. The produce was wholly drawn up the pit shafts, or sent off by an underground level. The working required experience, and was carried on by persons brought up to the occupation, called lime- stone miners. It was held by the Court of K. B., that the property was not rateable. Lord Tenterden remarked, that the description of the manner in which the stone was obtained corresponded with the usual mode of mining. The existence of metal was not necessary to constitute a ' mine. To deny the character of a mine to the works in (i) Rex v. Dunsford, 1 Ad. & Ell. 568; 4 Nev. & M. 349. covers the character of the veins, but often exposes a quantity of ore, which may be worked “from the day.” There can be no doubt that the produce acquired in this manner is rateable; but the mode is now seldom resorted to, and is usually prohibited in mining leases. 584 RATING OF MINES. [CHAP. XII. question, would be to depart from the ordinary and proper meaning of that word in the English language (). In another case, it was found, by the Sessions, that a perpendicular shaft had been sunk from the surface for the purpose of raising clay out of the strata; and that this was effected by a steam-engine, and other mining ap- paratus; that the excavations were like those which were made for working coal and metallic mines; and that the mode of raising the clay was the same as that used in a coal mine. It was held, that the property was not rateable (1). In the case of Rex v. Dunsford, the appellant was de- scribed as the occupier of a freestone quarry, but the case did not negative the idea of the place being a mine. The place was described as not open like a pit, but as ap- proached by a waggon-way, three hundred yards in length and communicating with an inclined plane at the mouth of the quarry, which was entered by a level. One of the excavations, pursuing the course of the layers of the stone, was ninety-seven yards under the ground. The works were carried on by candlelight only. Skill and judgment were required for the excavation, and for properly support- ing the roof. There were no air passages or tunnels. The case was sent back to the Sessions to ascertain the fact of the place being a mine or a quarry. The quantity of subterraneous works created the difficulty. The case was reheard at the Sessions, and the place was found to be a mine (m). It has been seen, that the word “ mine” should be inter- preted according to its ordinary meaning in the language. Other operations and facilities for raising the minerals are not to be confounded with the process of mining; steam- engines, air gates and other machinery do not constitute a mine. The fact of the existence of a mine must depend (k) Rex v. Sedgeley, 2 Barn. & 424, Ad. 65. (m) 1 Ad. & Ell. 574. (1) Rex v. Brettell, 3 Barn. & Ad. SECT. III. ] QUARRIES. 585 upon the nature of the place where the mineral is severed from the land. If the place of operation be fully, or even partially, exposed to the light of day, it must be considered a quarry. If, on the other hand, it is only approachable by means of a horizontal level, or any excavation of a similar character, and the works are necessarily carried on by subterraneous workings, for which the light of day is insufficient, the place must be considered, to all intents and purposes, a mine. It is essential to the description of a mine, that the works are carried on beneath the surface of the earth, and secluded from the light of day. The observations already made with respect to the mode of rating coal mines, and property held with them, will, in general, apply equally to quarries(z). It has been seen, that the grantee of a licence to work quarries, which does not operate to confer an exclusive interest, is not liable to be rated (0). The rateable value of a brick field, in any year, may be ascertained with reference to the royalty payable for the bricks, as well as the rent, but without respect to the exhaustion of the material, or to casualties of manufacture; but the true test is still, under the Pa- rochial Assessment Act, the probable rent for which the field might be let from year to year for its present purpose ( p). Section IV. THE IRISH ACT. By the Act for the Relief of the Poor in Ireland (y), “ all opened mines,” “ profits to be taken out of any land,” “rights of way and other rights or easements over land,” are declared to be rateable hereditaments. But it is (n) See sect. 1. (p) Reg. v. Westbrook, 10 Q. B. (o) Rex v. Trent and Mersey Na- 178; 16 L.J., N.S., M. C. 87. vigation Company, 4 Barn. & C. 57. (q) 1& 2 Vict. c. 56, s. 63. 586 RATING OF MINES. [cHAP. XII. provided, that no mines which have not been opened seven years before the passing of the act shall be rateable, until the term of seven years from the time of the opening thereof shall have expired; and no mines hereafter to be opened shall be rateable, until seven years after the same shall have been opened; and mines bond fide re-opened, after the same shall have been bond fide abandoned, shall be deemed an opening of mines, within the meaning of the act. By this enactment, therefore, all quarries and all mines, of whatever description, which have been opened for seven years, are equally rateable for the relief of the Irish poor. With respect to the re-opening of mines after they have been abandoned, it may be observed, that the bond fide abandonment of a mine by one company, and its imme- diate prosecution by another, can scarcely be held suffi- cient to constitute an opening within the meaning of the act, so as to require the lapse of a period of seven years, before it is lable to be rated. The clause must be con- strued with reference to the mine, and not to the persons. We have seen, that, in England or Wales, a way-leave, or right of way, is not a rateable hereditament in itself, but that it may be indirectly rated by assessing the land over which it is enjoyed for the improved value it has ac- quired. By the Irish Act, these rights may be directly rated in themselves. ‘When a mine or quarry is worked under a licence, the question raised with respect to English coal mines and quarries, in cases where there is no exclusive occupation, will be effectually precluded (r). The adventurers will be equally lable, whether claiming under a licence or an actual demise. The same principle of valuation is adopted in this act as in that for regulating parochial assessments in England and Wales. Every rate must be a poundage rate, made (r) See sect. 1. SECT. IV. | THE IRISH ACT. 587 upon an estimate of the net annual value, viz. of the rent at which, one year with another, the same might, in their actual state, be reasonably expected to be let from year to year; the probable annual average cost of the repairs, in- surance and other expenses, if any, necessary to maintain the hereditaments in their actual state; and all rates, taxes and public charges, if any, except tithes, being paid by the tenant (s). Similar powers, to enter and examine the property, are given to the commissioners, and other persons appointed by the guardians in order to revise and correct any existing survey or valuation. Part IT. I. The County Rate Il. The Highway Rate. III. The Church Rate. I. By the statute 55 Geo. ITI. c. 51, the same property which is rateable to the relief of the poor is liable to the county rate, and the Court of Quarter Sessions is em- powered to direct a fair and equal county rate to be made for all the purposes to which the county stock is or may be liable, and to assess every parish and township rateably and equally according to a certain pound rate of the full and fair annual value of the property. The churchwardens and overseers may be required to make returns of the annual value, without regard to the actual amount assessed on the property, except in places where the property is assessed to the full and fair estimated annual productive value(¢). But since the operation of the act for regulating parochial assessments, the basis and mode of valuation will be the same, both as to poor rates (s) 1 & 2 Vict. c, 56, s. 64, (t) Sect. 2. 588 RATING OF MINES. [ CHAP. XII. and county rates. The Court of Quarter Sessions may also require the production of the parochial assess- ments (w). The payment of the rate to the county treasurer is to be made by the overseers of the poor in the same manner as before ; and they are empowered to raise the amount by an equal rate or assessment upon all the rateable property, to be paid by the occupier(x). Special provision is made for places where there is no poor rate, or overseer or churchwarden (y), and for places where the poor rate is not solely and separately applied within their particular limits(z). By the explanatory act of 56 Geo. ITI. c. 49, extra-parochial places and other places which are not con- sidered to be rateable to the relief of the poor are to be rated to the county rate. II. The highway rates are now regulated by the statute of 5& 6 Will. IV. c. 50. The old statute duty, and the means for obtaining funds by way of composition, are now abolished ; and a rate is directed to be made, assessed and levied by the surveyor upon all property now liable to be rated to the relief of the poor. But it is expressly pro- vided that the rate shall also extend to such woods, mines and quarries of stone, or other hereditaments as have here- tofore been usually rated to the highways(a). It has been seen that all quarries are rateable to the relief of the poor, and, therefore, in the absence of other grounds of exemp- tion, they need not have been expressly mentioned. But with respect to those mines and other hereditaments which are not liable to be rated for the poor, it will only be re- quisite to show that they have been usually rated to the highway rate, to make them still liable under the recent statute. The surveyor may inspect the poor-rate books at (u) 1 & 2 Vict. c. 56, s. 9. (z) Sect. 18. (x) Sect. 12. (a) Sect. 27. (y) Sect. 8. PART I. | RATING OF MINES. 589 a reasonable time and place(d); and the rate must be made upon the occupier (c). It has been held, that the mines “usually rated to the highways” need not be the identical mines which have been rated, but that the clause includes all new mines of the same class and kind as those usually rated in the parish before the passing of the act (d). III. With respect to church rates, all mines and minerals appear to be rateable, under the description of land (e). (b) 1 & 2 Vict. c. 56, s. 28. Reg. v. Rose, 6 Q. B. 153; 13 L. J., (c) Sect. 29. N.S., M.C. 155. (d) Reg. v. Saunders, 3 Ell. & B. (e) See God. Append. 10, 11. 763; 24L.J., N.S., M.C. 57. See ( 590 ) CHAPTER XIII. THE REMEDIES RELATING TO MINES AND MINERALS. I. Legal Remedies. II. Equitable Remedies. III. Working out of Bounds. IV. Criminal Offences. V. Disputes with Workmen and Agents. —~ SEecTION I. LEGAL REMEDIES. THE subject of remedies connected with mining property has been already incidentally discussed in various parts of the treatise. Much, therefore, which might otherwise have been found under the present title, has been anticipated. It will be proper, however, to lay before the reader a general view of the subject, which may include the dis- cussion of those remedies which have not yet been par- ticularly mentioned. It has been seen that a property may be acquired in mines which will be quite independent of the property in the lands in which they are situate. In this condition, the minerals, of whatever character they may be, will of course still form parts of the Jand itself, and will constitute land in strictly legal acceptation. As such, mines become liable to the administration of all the usual remedies relat- ing to the law of real property, except in those cases which, in consequence of the peculiarity of this species of SECT. I. | LEGAL REMEDIES. 591 property, may necessarily demand some modification of those remedies (a). It may be proper again to remind the reader that the word mine is not here used in its strict sense, but as descriptive of the strata or minerals themselves. An action of trespass may be maintained in respect of any improper interference with the enjoyment of mines in all those cases in which that remedy is generally appli- cable. The same kind of action is usually resorted to for trying the validity of a title (0). At common law, an action of waste was maintainable to recover the place wasted, as well as damages for the injury done to the inheritance. This form of action, how- ever, was attended with many difficulties and peculiarities, and gradually fell into disuse. It is now expressly abo- lished (c). The modern remedies for punishing the com- mission of waste are an action on the case in the nature of waste, an action of covenant, and an action of assumpsit. The two latter actions are almost confined to cases between landlord and tenant. The action of assumpsit is resorted to when the tenancy is by agreement, not under seal, or in cases of an implied covenant. The action of covenant arises upon express and legal covenants. But an action on the case is most generally applicable in cases of waste, and is maintainable by the reversioner or remainder-man for life or years, against a stranger or tenant, even if the latter be a tenant at will or by sufferance(d). It may be brought against a tenant after the expiration of his term (e). An action of trespass is also maintainable in cases of waste (f). (a) Crocker v. Fothergill, 2 B. & (d) 2 Wins. Saund. 252, n. 7; Ald. 652. West v. Treude, Cro. Car. 187; Sir (b) Bourne v. Taylor, 10 East, W. Jones, 224. 189; Roberts v. Davey, 4 B. & Ad. (e) Kinlyside v. Thornton, W. Bl. 665; Lord Feversham v. Emerson, Rep. 1111. 24 L. J., N.S., Exch. 254. (f) West v. Treude, supra. (c) 3 & 4 Will. IV. c. 27, s. 36. 592 [CHAP. XIII. RELATING TO MINES AND MINERALS. The remedies with respect to waste committed by eccle- siastical persons have already been discussed (9). The lessor of a mine may maintain an action of trespass on the case against his lessee for an injury to his rever- sion, for an improper working of the mine, although the injury might have been redressed by an action for breach of covenant under the lease. When there is a contract under seal, the same contract, not under seal, cannot be the ground of an action. But when a lessee commits an act of waste, the lessor is not bound to take the higher remedy for breach of covenant (A). There may sometimes be an election between case and trespass. If workmen are forcibly ejected from a mine, it is trespass; but the refusal generally to allow a claimant to exercise his rights, which may exist in parts of the mines not previously worked, would furnish suffi- cient ground for an action on the case (7). In an action for damages suffered by an owner in his coal mine, in consequence of the working of another owner in his mine, which was separated from the former by another coal mine, it was held, that an action on the case was the proper remedy (A). The grant of an exclusive licence will support an action of trespass or of case (/). Under such a licence it is not necessary, in an action on the case, to show a seisin in fee, as that action is founded on possession only (m). (g) SeeChap.1V. SeealsoHer- 1113. See Raine v. Alderson, 6 ring v. Dean and Chapter of St. Paul, 8 Swanst. 510, per Sir Thomas Plumer; Bishop of Winchester », Wolgar, cited ibid. 493. (h) Kinlyside v. Thornton, 2 W. Bl. 1111; Muskett v. Hill, 5 Bing. N.C. 694; Marker v. Kenrick, 13 C. B. 188; 22 L. J.. N.S. C. P. 129. See M‘Donnell v. M‘Kinty, 10 Irish L. Rep. 514. (i) Muskett ». Hill, supra. (k) Haward v, Bankes, 2 Burr, Scott, 691; 4 Bing. N. C. 702; Scott ». Shepherd, 2 Bl. 392, and 1 Smith’s Leading Cases, 210, as to the distinction between trespass and case, (1) Bishop of Winchester v. Knight, 1 P. W. 407; Harker v. Birkbeck, 1 W. Bl. 482; 3 Burr. 1556; Roberts ». Davey, 4 B. & A. 665. (m) Thriscutt v. Martin, 3 Exch. 454; 18 L. J., N.S., Exch. 291, SECT. I. ] LEGAL REMEDIES. 593 An action of ejectment will also be maintainable for re- covering the possession of a mine. It might certainly be contended, when mines form a distinct inheritance, that the action of ejectment is possessory; that the object of contention must, at least, be such as to be capable of actual possession from the delivery of the sheriff; that all the excavated parts would be of an incorporeal nature, or, at any rate, would become part of the general freehold, through which a mere right of way would be permissible ; and that all the portions, which are severed, instantly lose the character of land, and become mere personal chattels. Such an action would certainly not seem to correspond, in such a case, with its exact definition. But in this, as in some other instances, the action of ejectment has been carried beyond its original limits. It has been expressly decided, that such an action for the recovery of mines may be supported (zn). It would seem, however, to be doubtful whether such an action could be brought to recover the possession of un- opened mines, the title to which is distinct from that to the surface, This subject has been already discussed in con- sidering the operation of a feoffment with livery of seisin. In a case of unopened mines, it was observed by Lord Hardwicke, that the question was not, whether actual entry was necessary, and he denied that without entry an action of ejectment could not be brought ; for the common rule, obliging the defendant to confess lease, entry and ouster, was, in law, sufficient to support that (0). It will be seen, in a subsequent chapter, that the action may be brought for tin bounds, when they are preserved by (n) Comyn v. Kyneto, Cro. Jac. 255. 150; Wyld’s case, Lawson v. Wil- (0) Sayer v. Pierce, 1 Ves. sen. liams, cited Cro. Jac. 150; Cullen v. 282. See Chap. VI., and Wilkinson Rich, Bull. N. P. 102; Harebottle v. Proud, 11 M. & W. 33; 12L. J., v. Placock, Cro. Jac. 21; Andrews N.S., Exch. 227, v. Whittingham, Carth. 277 ; 1 Salk. B. QQ 594 REMEDIES. [CILAP. XIII. the actual working of the mines, and not merely claimed by cutting turves. Although an ejectment will not lie for a bare incorpo- real hereditament, yet all the rights and easements of that kind enjoyed with land or mines may be recovered with the subject matter of which they are deemed to form part (p). On the trial of an ejectment, the mesne profits may now be recovered down to the time of verdict (q). It has been seen, that an ejectment cannot be brought by the lord of a manor for the mines situate in the lands of his copyhold tenant, in the absence of special custom ; for though the former is entitled to the right of property, the latter is entitled to the right of possession (r). It has been decided, that such an action will not properly lie in respect of a licence only to work mines. In the case of a licence, an action of this kind was brought for the re- covery of the mines. It was held by the Court of King’s Bench, that a proviso for re-entry was not less applicable to a licence to work mines, than to an actual demise of the minerals, because under such a licence works might be effected, and a corporeal possession had, which it might be competent for the grantor to reserve, but that such an in- strument did not confer a right sufficient to support the action of ejectment (s). When the minerals are severed, and become the subject of manipulation, they are mere personal chattels, like the trees which are severed from the freehold, and an action of trover will, therefore, be maintainable for their recovery in that condition. This form of action has been often adopted to try the right to mines (¢). A parol licence is sufficient (p) Crocker v. Fothergill, 2 B. & (s) Doe d. Hanley v. Wood, 2 Ald. 661, per Holroyd. Barn. & Ald. 739, 740. (q) 1 Geo. 4, c. 87,8. 2. (t) Wilson v. Mackreth, Burr. (r) Lewis v. Branthwaite, 2 Barn. 1825; Hoe». Taylor, Moore, 355 ; & Ad. 437, See Chap. II. Player v. Roberts, W. Jones, 243; SECT. I.] LEGAL REMEDIES, 595 for this action («), and it need not be exclusive, with respect to the minerals actually raised. The change of chalk into lime, it seems, may be suffi- cient to defeat the action (x). The ejectment of workmen, and the refusal to allow the removal of the property, do not amount to sufficient evi- dence of conversion, in the legal sense (y). An action of trover cannot be maintained for the re- covery of a certificate or voucher of a person being en- titled to certain shares in a mining association, if the plaintiff can show no legal title to the document (2). An action for use and occupation was held to be main- tainable, in respect of a shaft or down, which had been let by a written agreement not under seal, if the defendant could be considered as having taken possession of the shaft ; and he was also held liable, under those circumstances, to all the rent payable to the lessor till the determination of his tenancy, and whether he had continued to work the mine or not. But it was also said, that if he had merely caused. holes to be dug, and had them filled up immedi- ately, with a view to ascertain only what kind of a bargain he was about to make or had made, such acts would not amount to a taking of possession (a). A non-resident partner in a cost-book mine is not within the jurisdiction of the County Courts Act, as a person carrying on business there (0). Mines may also be taken possession of under the writ of elegit. A tenant in elegit, it has been seen, cannot open mines in lands of which he has taken possession. This re- striction, it is presumed, would not apply to mines forming Cullen (Lord) v. Rich, Bull. N. P. (y) Ibid. 102 ; 2 Str. 1142 ; Rowe v. Brenton, (z) Dawson v. Rishworth, 1 Barn. 8 Barn. & C.737 ; Rowev. Grenfell, & Ad. 574. R. & M. 396. (a) Jones v. Reynolds, 7 Carr. & (u) Northam v. Bowden, 24L.J.. P. 335; 4 Ad. & E. 805. Exch. 237; 11 Exch. Rep. 70. (6) Mitchell v. Hender, 23 L. J., (x) Thorogood v. Robinson, 14L. N.S., Q. B. 273. J. N.S. Q. B. 87. QQ2 596 REMEDIES. [CIAP. XII. a separate inheritance ; for such an exercise of power would not constitute waste. The point, however, is of little prac- tical importance, as it can rarely, if ever, happen, notwith- standing the recent extension of the remedy, that such a temporary tenant would feel justified in proceeding to open mines. The usual general agreement or covenant to refer all disputes to arbitration will not be allowed to oust the Jurisdiction of the superior Courts. Ina lease of a coal mine, the lessee covenanted to raise at least 4,000 tons of coal, and it was agreed that any ‘differences arising respecting any covenant should be settled by arbitration, with mutual covenants to obey the award, and not. to bring any action or suit without first submitting all matters to arbitration. It was held, that these provisions could not be pleaded to an action for not raising the stipulated quantity of coal (c). By the Common Law Procedure Act, 1854 (sect. 11), it is provided, that when any differences are agreed to be decided by arbitration under any deed or instrument in writing, and any action or suit shall be commenced, the Court or a Judge, on the application of the defendants, after appearance and before plea in answer, and on being satisfied that no sufficient reason exists for not referring the matter to arbitration, and that the defendants were and are still ready to concur in all acts necessary for that pur- pose, may order all proceedings to be stayed on such terms as to costs and otherwise as the Court or Judge may think fit, with power to discharge or vary any such order. A Judge may also, by consent, try questions of fact. He may also direct arbitrations in matters of account before trial, and also at the trial, when the issues of fact are left to his decision. (c) Horton v, Sayer, 4 Hurl.& N. 22 L. J., Exch. 157; Ib. 287 3 25 643; 29 L. J., Exch. 28. See Scott Ib. 308; 5 H. L. Cas. 811. v. Avery,8 Exch, Rep. 487; 1b. 497; SECT. 1. | LEGAL REMEDIES. 597 Equitable defences may now be made to actions at law, under the Common Law Procedure Act, 1854, and injunc- tions may be granted. In an action for breach of covenant of a lease, the de- fendant pleaded an agreement, under which the lease was to be surrendered on certain terms which had been fulfilled on his part, and that he was ready to surrender the lease. But the plea was overruled, on the ground that a Court of Equity would not enforce its remedy without compelling a surrender in writing, and that a Court of Common Law had no power for that purpose (d). A Court of Law will not allow an equitable defence when the effect would be to carry the judgment farther than a Court of Equity would have decreed (e), nor in cases where it does not appear that there is any ground for relief in a Court of Equity, nor where the relief would be substantially different ( f). By the same act, 17 & 18 Vict. c. 125, s. 79, in all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may claim a writ of injunction against the re- petition or continuance of such breach of contract, or other injury, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right, and he may also in the same action include a claim for damages or other redress. An injunction will not be granted under this act, unless a Court of Equity would have granted, not only an un- conditional, but a perpetual injunction (g); nor where a (d) The Mines Royal Society ». _v. Magnay, supra.. Magnay, 10 Exch. R, 489; 241. J., (f) Hunter v. Gibbons, and Dud- Exch. 7. ley v. Gibbons, 1 Hurl. & N. 459; (e) Wood» The Copper Miners 26 L, J., Exch. 1. Company, 17 Com. B. 561 ; 25 L. J., (g) Wood v. The Copper Miners C. P. 166; The Mines Royal Society Company, supra, 598 REMEDIES. [CILAP. XII. plaintiff has an adequate remedy by action (#); nor in doubtful cases, where there is no appeal from a Court of Law, and an injunction might be applied for in a Court of Equity (2). Section II. EQUITABLE REMEDIES, Courts of Equity have long ago adopted the practice of giving relief, in certain cases, by injunction, to restrain persons from working mines. This remedy was always obtainable in cases of waste. It was extended to trespasses in mining cases, for the purpose of preventing irreparable mischief (4). This right has been extended to restrain the taking of valuable stones, or nodules of clay used for making cement, and found on the sea beach(/); to restrain waste by a copyholder, at the instance of the lord (m); to prohibit an owner, who has a limited right to take stone from a quarry in the land of another owner, from abusing his privilege (x); and to prevent a tenant from removing mineral substances deposited in a pool (0). In the last case it was said by Lord Eldon, that through- out Lord Hardwicke’s time, and down to that of Lord Thurlow, the distinction between waste and trespass was (hk) Sutton v. The South Eastern Railway Co., 35 L. J., Exch. 38; 1 Law Rep., Exch. 82. (i) Ibid. (x) Gibson v. Smith, Barn. Ch. Rep. 497; Player v. Roberts, W. Jones, 243; Anon., Amb. 209; Grey v. Duke of Northumberland, 13 Ves. 236; 17 Ves. 281; Mitchell v. Dors, 6 Ves. 147; Whitfield ». Bewit, 2 P. W. 240; Flamang’s case, cited 7 Ves. 808; Norway v, Rowe, 19 Ves. 144; Field »v. Beaumont, 1 Swanst. 208; 8 Madd. 102; Clowes v. Beck, 20 L. J., C. C. 505; 18 Beav. 847. (1) Earl Cowper v. Baker, 17 Ves. 128. (m) Richards v, Noble, 3 Mer. 678. (n) Thomas »v. Oakley, 18 Ves. 184, (0) Thomas v. Jones, 1 Y. & C., Cc. C. 510. SECT. 1. | EQUITABLE REMEDIES. 599 acknowledged. The case in which Lord Thurlow first hesitated, was that of a person who, having a close demised to him, began to get coal there, but continued to work under the contiguous close, belonging to another person. It was held, the former, as waste, could be restrained, but, as to the close, not demised to him, it was a mere trespass ; and the Court did not interfere. But Lord Thurlow must have changed his opinion, on the ground that the defendant was taking the substance of the inheritance, and granted the injunction (p). An injunction to prevent waste will not be granted against a person in possession at the instance of an adverse claimant of the estate, unless the acts amount to flagrant, spoliation. If the claimant is a stranger, without any colour of right, he will be left entirely to his remedy at law, unless the destruction of the estate is threatened. On the other hand, the person in possession will be en- titled to an injunction against an adverse claimant when his acts are injurious to the inheritance—as by cutting down trees, and cutting out sods (q). This law will apply to mines, the injury to which is, in fact, more irreparable than in the case of timber. Trees may grow again; but nature will not restore the minerals. The tendency of the later authorities is to abolish, in cases of injunction, the old distinction between waste and trespass (7). By the Chancery Amendment Act, 1858, the Court has power, in all applications for injunction against any breach of covenant, contract or agreement, or against the com- mission or continuance of any wrongful act, or for the specific performance of any covenant, contract or agree- ment, to award damages to the party injured, either in addition to, or in substitution for, such specific performance. (p) See Haigh v. Jaggar, 2 Coll, Ch. 451. C. C. 281. (r) Ibid. (q) Lowndes v. Bettle, 33 L, J., 600 REMEDIES. [CHAP. XII. The damages may be assessed by the Court, with or with- out a jury, or by a jury in one of the superior Courts of Common Law. When a breach of covenant is threatened, and has been partly executed, the Court will award damages in respect of what has already been done (s). A bill for an injunction is generally sustained in connec- tion with an account. But in mining cases an account may be decreed when the injunction is refused (t). In a case where a bill was brought for an injunction to protect coal mines from injury by water flowing from another coal mine, the Court granted the motion, and re- strained the defendants from working their mines in any places which might injure or endanger the plaintiff’s mines until answer or further order. There was no direction for a trial at law. Evidence was afterwards entered into, and, on the hearing of the cause, the Court refused to make the injunction perpetual, until the plaintiff had established his right at law. The bill was retained for a year, with liberty to the plaintiff to bring an action, and the injunction was continued in the interval (u). In cases of a pressing nature an injunction may be ob- tained on motion only, and before the answer of the de- fendant is put in. A contrary decision of Lord Hard- wicke has been overruled (x). The bill must, in such cases, be actually filed, and be supported by proper affidavits of title, showing an actual or threatened in- terference. But a distinction has always been observed with respect to the hasty disturbance of mines in active operation. Mining operations may, in general, be prevented without much permanent injury even to the rightful owner, when (s) Hindley v. Emery, 85 L. J., 6 Hare, 340. See also Thomas v. Ch. 6; 1 Law Rep., Eq. 52. Jones, 1 Y. & C., C. C. 510. (¢) Parrott v. Palmer, 3 Myl. & (z) Lowther v. Stamper, 3 Atk. K. 632. 496. (u) Duke of Beaufort v. Morris, SECT. II. | EQUITABLE REMEDIES. 601 no expenditure has been incurred, and when no extensive preparations have been made. But the nature of mining requires that the works should be kept in a constant state of repair and activity, and an injunction for causing such operations to be at once suspended might produce a fatal injury, both with respect to the costs of re-commencing the suspended operations, and with respect to rival owner- ships, by which the most favourable opportunity for dis- posing of the produce might be lost. As a general rule, therefore, the Court will not interfere by injunction, on motion, and before the cause is fully heard, in cases where there has been either great expenditure or great delay (y). Delay alone, without much expenditure, will of itself suffi- ciently justify the Court in withholding the summary ap- plication of a remedy which is required to be sought for at once, and in the acquisition of which unusual facilities are afforded by the Court. The only ground for so strong a measure is, that a denial of it might be attended with irreparable mischief. If persons are not prompt in pro- claiming this mischief, the circumstance may be considered either to refute the extent of the injury, or their title to redress (z). In one case it was observed by Lord Eldon, that the grantees had actually worked the mines from 1808 till 1816, when the action of trespass was commenced—and that action was not brought to trial till 1817. If the de- fendants had filed a bill to stay the working of the mines, the Court must have refused an injunction to parties who had permitted these operations to proceed from 1808 till 1816, without interruption. To stop the working of a coal mine was a serious injury; and the expenditure incurred (y) Anon., Amb. 209; Grey v. 208; 3 Madd. 102; nom. Beaumont Duke of Northumberland, 13 Ves. . Field, 1 Barn. & Ald. 247; Pol- 236; 17 Ves. 282; Birmingham _ lard v. Clayton, 1 Kay & J. 462. Canal Company v. Lloyd, 18 Ves. (z) Parrott v. Palmer, 3 M. & K. 515; Field v. Beaumont, 1 Swanst, 632. 602 REMEDIES. [CMAP. XIIL. in the course of eight years would raise an equitable ground to prevent the hasty interference of the Court. The de- fendants would have been directed first to bring an action, and to return, when the result of the trial had enabled the Court better to deal with the application (a). In another case, the time of delay amounted to two years—and the injunction was refused (4). When a special injunction is granted, it is for the pur- pose of immediately protecting the rights of those interested in the property. But whether issued in the first instance or not, it will be incumbent on the plaintiff, upon the hearing of the cause, to show just grounds for the relief being granted or continued. The court may then proceed to the final decision of the question, or, as in cases of dis- puted title, may direct the plaintiff to establish his right in a court of law. If there be any unnecessary delay in the plaintiff in such a case, in trying an action at law, this delay will in itself form just grounds for dissolving an injunction. Thus, in the case of Grey v. The Duke of Northumberland, it was observed by Lord Eldon, after noticing that the action at law had miscarried by means of an error in pleading, in making the defendant a tenant in fee, instead of a tenant for life, that the merits of the question had not been tried from the fault of the plaintiff, which presented a strong case for dissolving the injunction; unless some means of procuring a speedy trial could be insured, he should dis- solve it (c). It must always require a strong case on the part of the plaintiff to demand the interference of the Court by in- junction im cases of trespass by the working of mines. The remedy cannot be administered on every occasion of injury. There must exist an urgent necessity for so strong (a) Field v, Beaumont, 1 Swanst. — v. Lloyd, 18 Ves. 515. 204. (ec) 17 Ves. 281. (b) Birmingham Canal Company SECT. II. | EQUITABLE REMEDIES. 603: a proceeding ; if otherwise, the parties will be left to their remedies at law (d). A motion was made before Lord Hardwicke, to restrain a lessee from working a coal pit irregularly and detrimen- tally to the lessor. The Chancellor refused the injunction, and observed, that the Court grants injunction to stay the working of a colliery with great reluctance, from the great inconvenienee it occasions, and that it never will do it, but where there is a breach of an express covenant, or an un- controverted mischief (e). In another case, it was observed by Lord Eldon, that the act of stopping a colliery about to be wrought might possibly, with reference to rival ownerships, be the means of making it absolutely unproductive twelve months after- wards, when it was to be wrought. The injunction was refused after the delay of two years (f). In another case, the same Judge observed, that incon- ceivable mischief might ensue from upholding the injunc- tion too long, as the value of the opportunity of working a coal mine, if lost, might never be recovered, especially if it was contiguous to other mines belonging to the same person ; and the interposition of the Court must be with a considerable pressure, that on the part of the plaintiff there should be no delay in going to trial (4). An injunction will not be granted when there is reason- able doubt concerning the direction or identity of faults or dykes which are referred to as boundaries (fh). It has been doubted, whether after a verdict at law in an action of trespass, in favour of the plaintiff in equity, the Court will afterwards grant an injunction against future trespasses, when the plaintiff refused to produce (d2) Elmhirst v. Spencer, 2 Mac.& —». Lloyd, 18 Ves. 515. G.45; M‘Curdy v. Noak, 17 L. J., (g) Grey v, Duke of Northumber- N.S., C.C. 165. Jand, 17 Ves. 281. (e) Clavering v. Clavering, 2 P. (hk) Davis v. Shepherd, 35 L. J., W. 388. Ch. 581. (f) Birmingham Canal Company 604 REMEDIES. [cHAP. XIII. at the trial documents which are necessary for a fair de- cision (7). Other instances of the remedy by injunction have been mentioned in the chapter relating to injuries. When mines are in danger of being ruined before the establishment of any rights relating to them, the Court will entertain a bill of quia timet, for quieting the owners in the enjoyment of their rights, and will establish them by decree (%). ITI. It has been seen, that mining is considered as a species of trade. A bill in equity, therefore, may be brought for an account of the profits (2). The remedy of account has been grounded generally on the expediency of preventing multiplicity of suits. The satisfaction of damages alone is not within the province of the Court; but it presumes, when waste is committed, that it will be repeated (m). The same rule, with respect to delay, applies to an ac- count. If a claimant looks on for a long period, and wit- nesses great expenditure by other claimants, without ob- jection, he will be entirely left to his remedy at law (n). An owner of a coal mine made a lease of it to a trustee, in trust for five other persons, in equal shares. The lessee entered and worked the mine, which some time afterwards became unprofitable, and was abandoned. The lessee was insolvent ; and the lessor brought a bill against him and (i) Field ». Beaumont, 1 Swanst. 210. (k) Lord Falmouth v. Innys, 630; 1 Ch. Ca. 34; Clavering v. Westley, 3 P. W. 402; Pulteney v. Warren, 6 Ves. 89 ; Norway v. Rowe, Moseley 87; Story, Eq. Jur. 860; Sayer v. Pierce, 1 Ves. 232. (1) Bishop of Winchester »v. Knight, 1 P. W. 406; Whitfield v. Bewit, 2 P. W. 240; Jesus Col- lege v. Bloome, 3 Atk. 262; Amb. 54; Parrott v. Palmer, 3 My. & K. 632; Story v. Lord Windsor, 2 Atk. 19 Ves. 144; Rowe v. Wood, 2 Juc. & W. 559. (m) 3 Atk. 262; Lee »v. Alston, 1 Bro. C. C. 194; Bishop v. Church, 2 Ves. 104; Yates v, Hambley, 2 Atk. 862; Smith v. Cooke, 3 Ibid. 381. () Parrott v. Palmer, supra. SECT. II. | EQUITABLE REMEDIES. 605 the five partners for the rent, and insisted that as the cestuis que trust were to have the profits while the lease continued to be a beneficial one, it was reasonable they should also bear the loss occasioned by it. The Master of the Rolls was of opinion, that, as an action at law lay against the lessee only, the landlord was debarred of any remedy against any other person; and that as the land- lord gave credit entirely to the lessee, and made choice of him as the person liable for the rent, the bill ought to be dismissed as against the partners. But this decision was reversed by Lord Talbot, on appeal; and it was decreed that an account should be taken of the amount of rent and sums due to the lessor, which was to be paid to him by the lessee; and in case of his default, that an account should be taken for the purpose of showing whether the lessee ‘had sufficient monies of the partners remaining in his hands to answer their shares of what should be found due to the plaintiff, and if the lessee had not sufficient, that the other defendants should pay the amount to the plaintiff, according to their respective shares (0). ‘When mines are in the possession of assignees, or one of many persons entitled to share in the profits, all the reasonable expenses incurred in the management of the concern will be allowed in taking the account (p). A bill for an account may be brought by the owners or lessees of mines against their agents; and if there are mutual accounts, the Court will restrain all proceedings at law, and direct the whole accounts to be taken in equity. In one case, the agent had received a regular salary pre- vious to his dismissal. He afterwards brought an action for his wages against his former employers. The latter filed a bill to stay proceedings, and for an account, alleging the receipt of various sums by the agent, which had not (0) Clavering v. Westley, Claver- Coal Mining Company, 25 L. J., Ch. ing v. Reed, 3 P. W. 402; Reg. 640. -Lib. A. 1735, fol. 526. See remarks (p) Scott v. Nesbitt, 14 Ves. 445, on this case, Walters v.The Northern per Lord Eldon. 606 REMEDIES. [CHAP. XIII. been accounted for. The defendant admitted the existence of mutual accounts. But it was contended for him, that the whole question depended upon the amount of compen- sation to be given to him for his services, and was a ques- tion for a jury. It was held, however, by the Court of Exchequer, that if it should become necessary to try the question before a jury, the Court could direct an issue. If the action proceeded, it would have ended in a reference. The master was as good a judge of the matters in issue as @ jury could be (¢). But a bill for an account will not be supported unless the plaintiff does some act to show his possession. A lease was made of a coal field, but no possession was taken of it by the lessee. The defendant, who was the owner or lessee of adjoining mines, was charged by the plaintiff with taking coals from the land included in his lease. There were also disputes arising from a confusion of boundaries. Lord Hardwicke said, it was difficult to go through with an action at law in case of an account of the profits of coal mines; and, therefore, the Court would go farther than in other cases. But the bill was the same as a bill for an account of rents and profits of an estate, which cannot be maintained merely on a legal title, unless there is infancy or something in the way, so that no recovery could be obtained without it. An ejectment would have determined the right ; and if the bill had been merely on account of the profits, it must have been dis- missed ; but being to ascertain the boundaries, the plaintiff might, if he recovered, want that relief; and then if leave were given to bring an ejectment abstracted from the direction of the Court, he must bring a new bill; and if it were dismissed entirely, he would be deprived of an in- junction if wanted. The bill was then directed to be re- tained for a year, with liberty for the plaintiff to bring an action of ejectment (r). (q) Crease v. Penprase, 1 Jurist, (r) Sayer v. Pierce, 1 Ves, sen, 840, Ex, Eq.; 2 You. & C. 527. 232. SECT. II. | EQUITABLE REMEDIES. 607 The mine, in the above case, formed a possession distinct from that of the surface. If it had not been distinct, the objection could not have been raised, unless it was also applied to the general inheritance. A bill for an account may be brought by the mortgagor of mines against a mortgagee in respect of the proceeds arising during the period of his possession. In such cases, the mortgagee must account, not only for what he has ac- tually received, but for what he might have received, but through his gross mismanagement or wilful neglect(s). But, as we have already seen, he will not be liable to ac- count for any supposed benefits which might have resulted from any speculations in improvement, or from a more ex- tensive scale of expenditure than is required from a pru- dent owner (t). When the expenditure is proper, but unprofitable, interest will be allowed (uz). The remedy of account between partners has been already considered (x). A partner will not be bound to account in so particular a manner as a mortgagee (y), for the acts of the former are identified with those of his co- partners, who must, in due time, take measures for con- trolling his imprudent operations, and must, as in other respects, endure the consequences incident to the contract of partnership. ‘When the relations of a mortgagee and a partner are united in the same person, it has been doubted by Lord Eldon, whether an account should be directed with respect to the former or the latter character. But the mortgagee partner was eventually declared to retain the possession of the mine in his character of mortgagee only. It is pre- sumed, if a person takes possession as mortgagee, he must also account as a mortgagee. If he acquire the advan- (s) Anon., 1 Vern. 35; 1 Eq. Ca. (C.121; 5 De G. M. & G. 728. Ab. 827; Hughes v. Williams, 12 (z) Chap. X. Sect. 5, Ves, 493. (y) Rowe v. Wood, 2 Jac. & Walk. (t) See Chap. IV. 556. (~) Norton v, Cooper, 25 L. J.,C. 608 REMEDIES. [ CHAP. XIII. tages resulting from the assumption of a higher character, it is only reasonable that he should bear the inconve- niences. In the above case, the mortgagor was declared to have a clear right to insist that regular accounts should be kept of all receipts, payments and transactions relating to the mine, and to have constant access for the purpose of inspecting the accounts(z). A bill was filed for an account of stone taken from a quarry, under an agreement that stipulated for the keeping of proper accounts. The bill alleged that accounts had been kept. The defendants, in their plea, denied the agreement, but did not deny the allegation as to accounts having been kept. Lord Eldon overruled the plea on this ground (a). In another case, the bill was retained for a year, to enable the plaintiff to try an action as to the quantity of coals contained in a stack by the custom of the country, the render being 1s. per stack (6). Joint tenants and tenants in common have, by statute, a remedy at law for an account against each other(c). The equitable relief is not affected ; but when there has been negligence in the discovery of a mistake, the account will be limited to six years, in accordance with the statute (d). The clauses contained in deeds for referring disputes to arbitration are not binding, so as to exclude the jurisdic- tion of a Court of Equity (e). In a case of alum works, there was a covenant by the lessee to leave stock of a certain amount upon the premises. There was a fair ground of suspicion, that he did not mean to perform this covenant. Lord Eldon decided, that, though there might be compensation in damages, there was a reference to that sort of enjoyment for which (z) Rowe v. Wood, 2 Jac. & Walk. (c) 4 Anne, c. 16, s. 27. 559. (d) Denys v. Shuckburgh, 4 You. (a) Jones v. Davis, 16 Ves. 262. & C. 42; see Chap. IV. (b) Geast y. Barber, 2 Bro. C. C. (e) Ear] of Mexborough v. Bower, 61, 7 Beav. 127. See last section, SECT. II. | EQUITABLE REMEDIES. 609 the landlord had stipulated after the expiration of the term, and he decreed, by way of quia timet, the perform- ance of the covenant. This decision was afterwards con- firmed in the House of Lords (f). We have seen before that a Court of Equity will also, in certain cases, appoint a receiver or manager (9). It has been decided, that the Irish Statute, 11 & 12 Geo. 2, c. 10, does not authorize the appointment of a re- ceiver over mines in the possession of the respondent; and that the Court will not order, upon a mortgage petition, the letting of any property which was not producing rent at the time when the receiver was appointed (A). A bill in equity may be brought for determining ques- tions of disputed boundaries in mining fields (7). A Court of Equity will assist foreign tribunals to un- ravel complicated matters relating to mines, and will, so far as the law allows and jurisdiction extends, carry into effect the judgments of foreign Courts duly brought to knowledge (j). The Court will make a declaration of lien on foreign mines in favour of a plaintiff who can substantiate such a claim, and will even appoint a receiver. The plaintiff must himself make the lien available by means of the foreign Courts. But where no privity exists between the parties, and the principal defendants are foreigners, such a declaration will not be made (z). An equitable jurisdiction is now conferred on the County Courts by 28 & 29 Vict. c. 99. Amongst other matters, (f) Ward v. Duke of Bucking- ing Company, 2 Hog. 30. ham, cited 10 Ves. 161. (i) Sayer vw. Pierce, 1 Ves. sen. (g) Chap. X. Sect. 5; Jefferys 232. v. Smith, 1 Jac. & W. 298; Norway (j) Norris v. Chambers, 30 L. J., v. Rowe, 19 Ves. 144; Rowe v. Ch. 285. Wood, 2 Jac. & W. 556. (k) Ibid. (hk) Frere v, The Hibernian Min- B. RR 610 REMEDIES. [CHAP. XIII. suits may be brought for an account, or administration of assets, for the execution of trusts, for foreclosure, redemp- tion, or for enforcing any charge or lien, for specific per- formance, or for delivering up or cancelling any agreement for the sale or purchase of any property, for the dissolu- tion or winding up of any partnership, and for injunctions and staying proceedings at law. But the whole subject- matter must not exceed 500/. in value. There is also a right of appeal to the Court of Chancery. The peculiar remedies relating to mines in Cornwall and Derbyshire will be noticed in another chapter. —— Section ITT. WORKING OUT OF BOUNDS. THERE is no more fertile cause of annoyance to mining owners than the working out of bounds. For it not only is a serious trespass, in itself, often involving much loss of property, but it may occasion irremediable disasters to mining works. The premature bursting of barriers may occasion the most: fatal effects, both to property and to life. For this evil a very inadequate remedy is provided. The remedy at law is an action of trespass. The measure of damages in such cases is the full value of the minerals as soon as they are severed from the freehold, If they have been brought to the day and disposed of, the amount may be estimated by deducting the cost of transit from the place of working from the value at the mouth of the pit or level. This does not preclude any other mode of fixing the amount, according to the above rule. But no deduction can be made for the cost of working, nor for the dues of the lessor (1). (1) Martin v. Porter,5 M. & W. Wild». Holt, 9 Mee. & W. 672; 11 851; Morgan v. Powell, 3 Q. B. L.J., N.S., Exch. 285. See Fisher 278; 11 L. J.. N. S., QB. 268; Pimbley, 11 East, 188, Wood v. Morewood, 3 Q. B, 440; SECT. I1I.] | WORKING OUT OF BOUNDS, 611 The action of trespass is limited by statute to six years from the time of the cause of action, without reference to the period of discovery (m). These acts are often first discovered after a great lapse of time. The only ground for excluding or extending the statute would be fraud and mistake. It has been distinctly held, at law, that fraud will not prevent the statute from run- ning (2). In an action at law for working coal wrongfully, the defendant had pleaded the Statute of Limitations. The plaintiff replied, that the wrong was fraudulently concealed from him until within six years before suit. But the re- plication was disallowed on the grounds, that fraud was no answer at law to a plea of the statute, that a Court of Equity would not restrain the defendant from setting up the defence, and that, if there was any right to equitable relief, it could only be demanded by a bill for an account, in which the amount allowed would differ from the amount recoverable in a Court of Law (0). It has also been held in equity, that the statute may be a good defence to a bill of discovery which is filed for aiding an action at law, when .the remedy is clearly at law (p), But it has also been well established by numerous deci- sions, that when a Court of Equity exercises its own direct jurisdiction, as in bills for account and injunction, and for discovery connected with these remedies, the Statutes of Limitation will not be suffered to be pleadedin bar. ‘This rule is not considered to be in disobedience to positive statutes. For a Court of Equity cannot be prevented from doing justice according to good conscience, when the equitable title to relief is not barred by lapse of time. In (m) 21 Jac. 1, c. 16, s. 3. C. 495, (n) The Imperial Gas Company (o) Hunter v. Gibbons, Dudley v. v. The London Gas Company, 10 Gibbons, 1 Hurl. & N. 459; 26 L. Exch. 39; 23 L. J., N. S., Exch, J., Exch. 1. 808; Blair v. Bromley, 5 Hare, (p) Smith v. Fox, 6 Hare, 386; 542; 2 Ph. 354; 16 L. J.,N.8.,C, 17 L.J., N.S, C. C. 170. RR2 612 [cHAP. XIII, REMEDIES. short, the cause of suit or action may be said to arise in a Court of Equity from the time when the right to appeal to its jurisdiction first arises. In cases of fraud or mis- take, therefore, it runs only from the discovery (q), or from the time when the discovery might, with due diligence, have been made (r). In a suit in equity, therefore, for an account of minerals wrongfully taken from the lands of others, either in waste or trespass, it may be considered clear, as a general rule, that, in cases of fraud, the statute cannot be pleaded in bar, if the fraud has been first discovered within the period of six years from the filing of the bill (s). But it is not always, in such cases, that fraud can be alleged, and rarely that it can be distinctly proved. The entire want of plans of the mines and the works, the im- perfect measurement of boundaries, and many false pre- tences of justification, may give a wide field for misconduct and trespass. If a lessee has worked out of bounds, into other lands of the same lessor, and has furnished an un- just account of sums due for rent, leaving a large quantity unaccounted for, a case of fraud may be well presumed. In cases where the wrongful working has been into the lands of other owners, some proof of fraud might also be gathered from the insufficient payment of rents to the acknowledged landlord. But such frauds -are often very difficult both of actual detection, and, after that, of positive proof. It becomes, therefore, important to in- quire whether the statute may be excluded on any other grounds. As a general rule, a Court of Equity will apply the same relief in cases of mistake as of fraud (2). (q) Whalley v. Whalley, 3 Bligh, 1, Booth ». Lord Warrington, 4 Bro. P. C. 163; Hovenden v. Lord Annesley, 2 Sch. & L. 634; Bond v. Hopkins, Ibid. 413, 431; South Sea Company v. Wymondsell, 3 P. W. 148; Deloraine v. Browne, 3 Bro. If the mineral C. C. 633. (r) Denys v. Shuckburgh, 4 You. & C, 42. (s) Hunter v. Gibbons, supra; Dean v, Thwaite, 21 Beav. 621. (t) Brooksbank v. Smith, 2 You. & C, 58. SECT. 1. | WORKING OUT OF BOUNDS. 618 has been ascertained to have been wrongfully taken, and without any intention of fraud, there must, at least, in such cases, have been misappropriation, misapprehension, or mistake, which has been defined to be, that result of ignorance of law or of fact, which has misled a person to commit that which he would not have done if he had not been in error(«). It is a well-known maxim, in equity as well as at law, that ignorance of the law excuses no one for breach of duty. It is equally clear, that a wrongful act, committed in innocent and mutual ignorance of facts, may be the subject of equitable relief. But this relief will much depend upon the degree of care and circumspection bestowed by either party. If the partiesare equallyinnocent, or equally guilty, a Court of Equity will refuse to interfere. Its maxim is—ia pari delicto melior est conditio possidentis et defendentis. This may be no defence at law, if the remedy is sought within the six years. In that case equity will follow the law and give relief. Beyond that period it also follows the law, but withholds relief according to its own rules. It is, therefore, important to ascertain if the party, either seeking or refusing relief, has been wanting in reasonable diligence. With respect to the trespasser it may be urged, that every occupier is bound, at his own peril, to know the limits of his property. A tenant is not only under -an obligation to know, but also to preserve bounds (v). There is no difficulty in acquiring this knowledge in mining works under the surface. As exact knowledge is much more necessary than on the visible surface, the want of it is the more culpable. Unless he has been wilfully misled by those who seek relief against him, he ought to suffer the consequences of his own imprudence. He ought also to verify all important statements for himself, from whatever source they come. In one case, where the Court limited the account of coal wrongfully taken to six (u) Jeremy, Eq. J. B. 3, p. 2, 358. (v) Attorney-General v. Fullerton, 2 Ves. & B, 263. 614 REMEDIES. [CHAP. XIII. years, and a certain amount of abstracted coal had been proved, it was thrown on the trespasser to show that the whole had not been taken within that time (w). On the other hand, the conduct of the party seeking relief will also be subject to scrutiny, if he seeks to annul the operation of the statute. For a Court of Equity administers relief, in such cases, in the spirit of an ancient proverb, and helps them that help themselves. Thus, if it can be shown, as in the case of a lessor, that the plaintiff had free access to the place of injury, and had neglected to protect himself by the employment of agents or other © usual means, his claims must be regarded with some dis- favour. The same feeling might arise in cases where his own conduct has been uncertain, or where he has disre- garded any reasonable grounds of suspicion (x). In many cases of this kind there might be circumstances which would preclude, or, at least, limit relief. The result would, therefore, be damnum absque injuria. It may be added, that a Court of Equity will not inter- fere in cases where a greater injustice or inconvenience would follow than that which is sought to be redressed. Thus, if the conduct of a defendant could be shown to be free from blame, and a long space of time had elapsed, during which he had expended the profits of the trespass more freely than he would probably have done if he had known they belonged rightfully to another, there might be just ground for refusing all interference. The measure of damages will also, in cases of relief, depend on the conduct of the parties. In cases of actual fraud, a Court of Equity would probably follow the cases decided at law, above cited, which give compensation without any deduction for the costs of working. In aggravated cases of mistake, the same rule might be applied. In other cases compensation will be confined to (w) Dean v. Thwaite, 21 Beay. J. 343. 621; see Powellv, Aiken, 4 Kay & (2) Ibid, SECT. III. | WORKING OUT OF BOUNDS. 615 the actual profits accruing, or which might have been fairly acquired, from the trespass. The market price of the mineral at the mouth of the mine will be taken, and all just allowances be made for the costs of working (y). In one case between lessees of adjoining mines, at nist prius, the defendants insisted that the common lessor had pointed out the place of trespass as abandoned by the plaintiffs. The jury were directed to deduct the costs of removing the mineral and of the royalty, and also to find whether the defendants had acted under a reasonable and bona fide belief that they had a right to take the mineral. Leave was then given to move for an increase of the damages by the amount of the royalty (z). Attempts have been made to treat trespasses of this kind as cases of felony under the statute noticed in the next section. But these proceedings have always failed from the difficulty of proving the intention to steal or animus furandi. There are generally sufficient means of escaping from this charge, even in cases where the guilt has been undoubtedly incurred. In one case, in 1848, where the Justices had committed the trespassers for trial, the Attorney-General directed a nolle prosequi to be entered. In a case, where a bill was filed for an account of coal against the representatives of the lessees of a mine, who had worked out of bounds, the defendants pleaded the statute in respect of the account, and averred that they had not taken on themselves the performance of the covenants in the lease. It was held, that the two pleas were inconsistent (a). In a case where the trespasser was dead, and the acts continued to be committed after his death, it was held, that his administrator was liable, in trespass, for the coal (y) Powell v. Aiken, 4 Kay & J. 1854, per Wightman, J. 343, See Chap. IV, Sect. 2. (a) Emmott v. Mitchell, 17 L. J., (%) Scaddick » Haines, MS. N.S.,C.C.179; 14 Sim. 432, 616 REMEDIES. [CHAP, XIII. taken after his death, and in assumpsit for money had and received for the coal previously taken (8). In cases of partnership, an innocent partner may become liable for a breach of trust; for the fraudulent representa- tions of one partner are held to be the acts of the firm (c). The same rule applies to trespasses of this kind, whether fraudulent or felonious (d). It will be seen, from the above statement, that the remedies for these trespasses, in whatever spirit they are committed, are very deficient. It is believed there are few mining districts in England where a kind of legalized robbery does not daily take place. But they are often undiscovered till the statute permits the delinquents to escape. It would be a proper provision that the legal remedy should begin only from the time of discovery, when that period is not postponed by the negligence of the parties who seek redress. In cases of concealed fraud, the recent Statute of Limitations, relating to the recovery of land, has enforced this rule on Courts of Equity (e). Another remedy might be found in giving a larger, readier, and less costly right of inspection to those who have good grounds for suspecting mischief. The powers given to the official inspectors of mines may be useful for promoting discovery (f). But a more complete remedy would be afforded by a proper system of registration of all mining operations, which is no less required for the present purpose, than as a measure of national importance (4). A Court of Equity, however, will grant an order for inspection on any reasonable grounds of suspicion. In one case an owner of coal mines showed good ground for supposing a trespass from neighbouring coal owners, and (b) Powell v. Rees, 7 Ad. & E. (d) See Chap. X. 426; 8L. J., N.S., Q. B. 47. (e) 3 & 4 Will. 4, c. 27, s. 26. (ce) Blairv. Bromley, 5 Hare, 542; (f) See Chap. XIV. 16L. J.. N. S., C. C. 495; 2 Ph. (g) See Preface. 354, SECT. III. ] WORKING OUT OF BOUNDS. 617 was unable to ascertain in his own lands whether any such acts had been committed. An order was granted for inspecting the neighbouring works, and another order was afterwards granted for the repair and ventilation of the mine (A). Any obstructions to a fair inspection will be ordered to be removed. In the case just cited, the defendant had filled up certain passages with the refuse, and they were ordered to be opened out. In another case, the defendants had erected framed dams and barriers, which caused that part of the mine, where the trespass was alleged to have been committed, to be filled with water. The erections might have been made, either bond fide for keeping out the water from their own mine, or for preventing any examination. It was ordered that the defendants should remove the framed dams and barriers as the viewers should direct, and that the viewers should cause them to be removed, unless they should be of opinion that the colliery of the defendants would be thereby destroyed (i). Powers of inspection may also be implied from the relative situation of the parties arising from contract (h). A bill was filed for an account of coal and ironstone alleged to have been wrongfully worked out of the plain- tiff’s colliery, and the plaintiff prayed for leave to inspect the workings of the defendant through his pits and works. The latter had formerly worked the plaintiff’s colliery under a lease, and he alleged that no plan or inspection would show that any more coal had been got than what was rightfully got during his tenancy. He denied any en- trance on his part into the plaintiff’s mine. The plaintiff relied on information and belief, and particularly on an affidavit made by a discharged workman of the defendant, | (h) Lonsdale (Earl) 'v. Curwen, 8 = Kynaston, Ibid. 153 ; 3 Swanst. 248; Bligh, 168, u. Browne v. Moore, 3 Bligh, 178, n. (i) Walker v. Fletcher, 3 Bligh, (k) Blakesley v. Wieldon, 1 Hare, 172,n. See East IndiaCompanyv. 176; 11 L.J., N.S., Ch. 164. 618 REMEDIES. [ CHAP. XIII. alleging conversations among the miners about the work- ings being under a barn on the plaintiff’sland. The agent of the defendant alleged, in his affidavit, that he had dialled the workings, and that they had not approached within twenty yards from the boundary, and that the mine being 190 yards in depth, the miners could not tell in what direction the gateways were being driven. But the Court granted an order for inspection, on the ground that such an order only requires a primé facie case, and that this case had not been sufficiently contradicted by the de- fendant. The plaintiff was allowed, on giving one clear day’s notice, to inspect the mine of the defendant, by him- self or his agents, so far as was necessary for the purpose, with liberty to use the defendant’s machinery, to measure and dial the mine, and make plans of the workings (1). An inspection may also be procured, after action brought, from a Court of Common Law, and similar directions will be given for removing obstructions. By the Common Law Procedure Act, 1854 (sect. 58), it is provided, that the Court or a Judge may order an inspection by the jury or the parties, or their witnesses, of any real or personal property, if such inspection be material to the question in dispute. The rules in force relating to views by a jury are made applicable for the inspection. In an application under this provision, it appeared, that the plaintiff had obtained leave from the defendants to examine their coal mines, and had found that a wall had been lately built on the boundary of the two mines. This wall had prevented him from looking beyond into his own mine, to see if any of his own coal had been wrongfully worked. The district inspector of mines, in pursuance of an order of a Judge, was allowed to examine the wall, and he reported that a sufficient inspection could be safely made by removing a portion of the wall. An order was (7) Bennitt ». Whitehouse, 28 Beay. 119; 29 L. J., Ch. 326; Adshead Needham, cited there. SECT. Iv. | CRIMINAL OFFENCES. 619 then made by a Judge at chambers for inspection, and, so far as was necessary, for making a driftway through the wall, as described in the inspector’s report—the plaintiff giving security to the extent of 500J. for indemnifying the defendants against any damage arising from the inspec- tion, as found by the Court. It was held by the Court, that the Judge had a right to direct the removal of ob- structions to inspection, and that the order was valid (m). Section IV. CRIMINAL OFFENCES. THE criminal offences relating to mines have been pro- vided for by several recent statutes. The offence of setting fire to coal mines was formerly punishable by death. But it is now enacted, that any one unlawfully and maliciously setting fire to any mine of coal, or cannel coal, shall be guilty of felony, and, being con- victed thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for life, or for not less than fifteen years, or to be imprisoned for any term not exceeding three years (n). If any person shall unlawfully and maliciously cause any water to be conveyed into any mine, or into any sub- terraneous passage communicating therewith, with intent thereby to destroy or damage such mine, or to hinder or delay the working thereof, or shall, with the like intent, unlawfully and maliciously pull down, fill up or obstruct any airway, waterway, drain, pit, level or shaft of or be- longing to any mine, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported for seven years, or to be imprisoned for any term not exceeding two (m) Bennett v. Griffiths, 30 L. J.. Gen, v, Chambers, 12 Beav. 159. Q. B. 98; see Ennor v. Barwell, 1 (n) 7 Will. 4 & 1 Vict. c. 89, 8. 9 DeG. F. & J. 529; The Attorney- repealing 7 & 8 Geo. 4, c. 30, s. 5. 620 REMEDIES. [CHAP. XIII. years, with or without hard labour, and with or without solitary confinement, such confinement not exceeding one month at any one time, nor three months in any one year (0); and, if a male, to be once, twice or thrice pub- licly or privately whipped in addition to the imprisonment. But it is provided, that this enactment shall not extend to any damage committed under ground by any owner of any adjoining mine in working the same, or by any person duly employed in such working ( p). If any person shall unlawfully and maliciously pull down or destroy, or damage with intent to destroy, or to render useless, any steam-engine or other engine (q), for sinking, draining or working any mine, or any staith, building or erection used in conducting the business of any mine, or any bridge, waggon-way or trunk, for conveying minerals from any mine, whether such engine, staith, building, erection, bridge, waggonway or trunk be com- pleted, or in an unfinished state, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to any of the punishments last mentioned (r). By an amending statute, 23 Vict. c. 29, it is enacted, that if any person shall unlawfully and maliciously pull down, or destroy or damage with intent to destroy, or to render useless, or shall stop, obstruct or hinder the work- ing of any steam-engine or other engine, or of any ap- pliance or apparatus in connexion therewith, for sinking, draining or working any mine, or for in anywise assisting in the working thereof, with intent thereby to destroy or damage such mine, or to hinder, obstruct or delay the working thereof, every such offender shall be guilty of felony, and be liable to any of the punishments for such offences named in 7 & 8 Geo. 4,¢.30,s.6. The jurisdic- tion of the admiralty is reserved. The above provisions are confined to cases in which the (o) 7 Will, 4 & 1 Vict. c. 90, (q) See R. »v. Whittingham, 9 8. 5. Carr. & P. 234, (p) 7 & 8 Geo. 4, c. 80, 5. 6. (r) Sect. 7, SECT. IV. | CRIMINAL OFFENCES. 621 minerals are worked by means of mines; and that they will be totally inapplicable to quarries and works carried. ‘on in the open day, if the mineral obtained be of the greatest value. The definition of a mine has already been noticed (s). If workmen stop up an airway, by order of their master, in part of his mine to which he has no right, it is not felony in the workmen, unless they knew, not only of the want of right, but also that it is a malicious act on the part of the master (¢). In a prosecution under 7 & 8 Geo. 4, c. 30, an owner had directed workmen to stop up an airway communi- cating with an adjoining mine. They believed he had a right to give the order, and acted bond fide ; and they were acquitted, though the owner knew he had no right to stop up the airway (w). It is also enacted, that if any person shall unlawfully and maliciously cut, break or destroy, or damage with intent to destroy, or to render useless, any machine or en- gine, whether fixed or moveable, prepared for, or employed in, any manufacture whatsoever (except several manufac- tures of silk and other goods, otherwise provided for), every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to the punishments de- scribed in the sixth section before mentioned (2). There is still, however, no specific remedy for offences to machinery and works used in raising minerals by any other means than mining ; for the machinery mentioned in the last section is such as is used “in any manufacture.” These words will, of course, extend to the machinery used in smelting, refining, and various other processes to which minerals are exposed, but not to that used in merely working the minerals by open excavations, and preparing them for the market, or for use in their natural state. (s) See Chap. XII. Sect. 3. 241. See Reg. v. Foster, 4 Cox, 25. (t) Reg. v. James, 8 C. & P. 131. (2) Sect. 4. (u) Reg. v. Norris, 9 Carr. & P. 622 REMEDIES. (CHAP. XIII. Malicious injuries, however, relating to machinery em- ployed for these purposes will be included, but often in- adequately, in the twenty-fourth section of the same act, relating to petty trespasses, by which it is provided, that, if any person shall wilfully or maliciously commit any damage, injury or spoil to or upon any real or personal property whatsoever, for which no remedy or punishment is thereinbefore provided, every such person, being con- victed thereof before a justice of the peace, shall forfeit such sum of money as shall appear to be a reasonable compensation for the injury, not exceeding the sum of five pounds, to be paid to the party aggrieved, except when such party has been examined in proof of the offence, and, in such case, and also in the case of property of a public nature, to be applied as a penalty under the general provisions of the act, to the county rate fund. In default of payment, the offender may be imprisoned and kept to hard labour for any term not exceeding two months. The section excepts from its operation any party trespassing under a reasonable supposition that he had a right to do the thing complained of, and any trespass, not wilful and malicious, in pursuit of game (y). The last section will not only apply to injuries to ma- chinery used in quarries or open works, but also to injuries to the minerals themselves, whether severed from the free- hold or not. The offender may be brought before one justice only. But the compensation or penalty cannot exceed five pounds. Injuries committed upon mining machinery, in cases of riot, have been provided for by the same statute. It is enacted, that if any persons, riotously and tumultuously assembled together to the disturbance of the public peace, shall unlawfully and with force demolish, pull down or destroy, or begin to demolish, pull down or destroy, any building or erection. used in carrying on any trade or (y) 7 & 8 Geo. 4, u, 80, s. 24 SECT. Iv. | CRIMINAL OFFENCES. 623 manufacture, or any branch thereof, or any machinery, whether fixed or moveable, prepared for or employed in any manufacture, or in any branch thereof, or any steam- engine or other engine for sinking, draining or working any mine, or any staith, building or erection used in con- ducting the business of any mine, or any bridge, waggon- way or trunk for conveying minerals from any mine, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon (z). This provision does not extend to quarries. The punishment of death is now abolished for these offences, and transportation for life, or for seven years, or imprisonment, with or without hard labour, for three years, are substituted (a). An aqueduct, or wooden trough, was used for convey- ing water from a distance to a pond, half a mile from the mine. The water was used for washing the ores of the mine, and the slag ore obtained from old refuse heaps. The aqueduct was held to be within the act, as an erec- tion used in conducting the business of the mine (6). This is a question for the jury, and not for the Court. A. scaffold, erected above the bottom of a shaft which was flooded with water, for the purpose of working a bed of coal above the level of the water, was held to be within the statute. But a cylinder or drum for taking up the rope of a mine, and moved by a steam-engine, is not so con- nected with the latter as to suffice for an indictment relating to it only (c). An action may be maintained against the hundred for a riotous destruction, in whole or in part, of property of the same kinds. ‘The persons injured must go before a justice of the peace within seven days from the commission of the offence (d ). (z) 7 & 8 Geo. 4, c. 80, s. 8. J., N.8., Q. B. 206, (a) 4& 5 Vict. c. 56, and 6 Vict, (ce) Reg. v. Whittingham, 9 C, & v. OL, P, 234, (b) Barwell v, Winterstoke, 19 L. (4d) 7 & 8 Geo, 4, c. 81. 624 REMEDIES. [CHAP. XIII. Negligence in blasting stone in a quarry, whereby large pieces of stone are projected, so as to endanger the safety of persons in houses, and in the adjoining highways, is a misdemeanor, indictable at common law (d). The offence of stealing minerals is now regulated by the statute 7 & 8 Geo. 4, c. 29. By the common law, larceny could only be constituted by taking things of a purely personal nature. Thus, the stealing of growing corn or apples was a trespass, not a larceny. The same principle was applied to minerals. If they were severed from the freehold by the thief, and immediately taken away by him, it was considered only a trespass; but if the removal by the thief took place at a different period than the time of severance by him, the offence of removal amounted to felony (e). This distinction is now destroyed by the above act, by which it is enacted, that, if any person shall steal, or sever with intent to steal, the ore of any metal, or any lapis calaminaris, manganese or mundick, or any wad, black cawke or black lead, or any coal or cannel coal, from any mine, bed or vein thereof respectively, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner’ as in the case of simple larceny (f ). This section is confined to the stealing of the metallic ores, and the other minerals particularly specified. The stealing of other minerals will, therefore, only constitute a larceny at common law, and will be subject to the rules just mentioned, as applicable in all cases before the passing of the statute. But the punishment is regulated by the statute (g), and has just been mentioned. The statute of 25 Geo. 2, c. 10, with respect to thefts and robberies from black lead mines, is repealed by 7 & 8 Geo. 4, c. 27. If any person employed in or about any mine, in the county of Cornwall, shall take, remove or conceal the ore (d) Regina v. Mutters, 10Cox,C. 1 Hale, 510. C 26; 84L.J., M.C. 22. (f) 7 & 8 Geo. 4, c 31, s. 87. (e) Lee v. Risdon, 7 Taunt. 191; (g) Sect. 3. 2 Marsh. 495; 1 Hawk. c. 33, s. 1; SECT. IV. ] CRIMINAL OFFENCES. 625 of any metal, or any lapis calaminaris, manganese, mun- dick or other mineral found or being in such mine, with intent to defraud the proprietors, or any workman or miner employed therein, such offender shall be guilty of felony, and shall be liable to be punished as for simple larceny. The act was confined to Cornwall. It is now extended to Devon by 18 Vict. c. 32, s. 28. An indictment, under this act, must sufficiently aver that the miner was in the mine at the time of removal. The usual words “then and there” may refer only to the venue (/). The Act of 56 Geo. 3, c. 73, for removing difficulties in the conviction of offenders stealing property from mines, arising from mining partnerships, is repealed by the 7 Geo. 4, c. 64 (i). But it is enacted by the same statute, that in any indictment or information for any felony or mis- demeanor, it shall be sufficient to name one owner, and to state the property to belong to the person so named and another or others; and this provision is to apply to all joint stock companies and trustees (A). The act for the regulation and inspection of coal mines, afterwards noticed, authorizes the adoption of special rules, for the breach of which the offender may be fined or im- prisoned. By a special rule under this act for regulating a coal mine in Shropshire, an agent, called a charter- master, was to be the responsible manager of the pit, and another person, called the banksman, was to take care that no more than eight persons were to descend the pit at one time. The banksman, who was the servant of the charter- master, broke this rule by allowing more than eight men to descend, and the chartermaster was close by, and was cognizant of the offence. The latter was held to have (h) Reg. v. Trevenner, 2 M. & R. (4) Sect. 32. 476. (k) Sect. 14. B. ss 626 REMEDIES. [ CHAP. XIII. been properly convicted of aiding and abetting the a man to violate the rule (2). Besides the statutory provisions, proceedings may still be taken at common law. A ground bailiff of a coal mine was indicted for man- slaughter in an explosion of gas which killed nineteen men. He was charged with the duty of ventilation and with negligence. Maule, J., directed the jury, that if it was the plain duty of the prisoner to direct the air-headings to be made, and he omitted ordinary precaution, he was guilty, whether other persons had been guilty of omission or not (m). In like manner, a banksman, whose duty it was to place a stage on the mouth of a shaft, to receive a loaded truck from a tramway, and who neglected to place the stage, whereby the truck fell down the shaft and killed a work- man, was held guilty of manslaughter (7). In another case, a person was found guilty, whose duty it was to attend to the steam engine by which the miners were drawn up the shaft, and who left it to the care of an incompetent person, who drew up the basket too far, whereby one of the miners in it was thrown down the shaft and killed (0). Section V. DISPUTES WITH WORKMEN AND AGENTS. I. Contracts of Service. II. Specific Work. IIL. Truck Act. 1V. Combinations. V. Injuries to Workmen. VI. Agents. I. SEVERAL statutes have been passed for the settlement of disputes between masters and servants,—for the proper (1) Howells v. Wynne, 82 L. J., (n) Reg. v. Hughes, 26 L. J., M.C. 241. M. C, 202; D. & B. 248. See Reg. (m) Reg. v. Haines, 2 Car. & K. v. Bennett, 28 L. J., M. C. 27. 368. (0) Reg. v. Lowe, 4 Cox, 449. SECT. V.] DISPUTES WITH WORKMEN AND AGENTS. 627 performance of contracts on the part of the workmen, and for the recovery and payment of their wages. These provisions are not always applicable to persons employed in mines. All complaints and disputes between masters and miners, colliers, keelmen, pitmen and other labourers employed for any certain time may be determined by one or more jus- tices of the peace of the county or place where the master inhabits, who may examine any such miner or other la- bourer upon oath, or any other witnesses, and make any orders for the payment of wages, not exceeding five pounds, within such period as the justice or justices shall think fit, and, in default of payment within twenty-one days, a warrant may be issued to levy the amount by dis- tress and sale of the goods of any master or employer ; and every such order is final and conclusive ( p). The act only applies to persons engaged in manual labour, and not to stewards, overlookers or agents (q). On the other hand, the justice or justices, upon com- plaint made upon oath by any master or employer against any such labourer, concerning any misdemeanor or ill be- haviour, in the service, may examine and determine such complaint, and punish the offender by commitment to the house of correction, to hard labour, for a period not ex- ceeding one month, or by abating some part of the wages, or by discharging such labourer from his employment. In like manner, upon a similar complaint, upon oath, a master or employer may be summoned to answer concern- ing any misusage, cruelty or other ill treatment towards any such labourer, and, upon proof thereof being made, and of the service of the summons, if the former shall not appear, such labourer may be discharged from his employ- ment, under the hands and seals of the justice or justices, gratis (r). An appeal may be made to the next General (p) 20 Geo. 2,u.19,s.1, amended L.J., M. C. 84, by 4 Geo. 4, c. 34, s. 5. (r) 20 Geo. 2, c. 19, s. 2. (q) Davies v. Baron Berwick, 30 ss2 628 REMEDIES. [ CHAP. XIII. Quarter Sessions in all cases, except from an order of com- mitment (s), which may award costs to the amount of forty shillings, to be levied by distress and sale (¢). But no writ of certiorari may be issued for removing the proceedings into the superior courts of law (u). All the above provisions are extended to the tinners and miners employed in the Stannaries of Devon and Corn- wall, but not so as to prevent any person from applying, as before, to the Stannary Courts (:). If any miner, collier, keelman, pitman, labourer or other person shall contract with any one for any certain period, and shall absent himself from his service before the com- pletion of the term, or be guilty of any other misdemeanor, any such justice of the county or place in which such la- bourer shall be found, upon complaint made upon oath (y) by the person contracted with, or his steward or agent, may issue his warrant for apprehending the miner or labourer, and may commit him to the house of correction for not more than three months, and not less than one month. An appeal is given to the next General Quarter Sessions, upon giving six days’ notice to the justice or justices of the intention, and of the ground of the appeal, and enter- ing into a recognizance within three days after the notice, before some justice of such county or place. The Court of Sessions, upon proof of the notice and recognizance, is to give proper and reasonable relief and costs to the parties appealing or appealed against. These provi- sions do not extend to the Stannaries of Devon and Cornwall (z). If any miner or other person shall contract to serve any persons for any time, or in any other manner, and shall not enter into or commence the service according to the con- tract (such contract being in writing, and signed by the (s) Rex ». Justices of Stafford- (x) 27 Geo. 2, c. 6, ss. 2, 3. shire, 12 East, 572. (y) See Finley v. Jowle, 12 East, (t) 20 Geo. 2, c. 19, s. 5. 248. (u) Sect. 6. (z) 6 Geo. 3, c. 25, ss. 4, 5, 6. SECT. V.] DISPUTES WITH WORKMEN AND AGENTS. 629 parties), or having entered shall absent himself before the term of his contract, whether the contract be in writing or not, or neglect to fulfil it, or be guilty of any other mis- conduct or misdemeanor, he may, upon complaint made upon oath by the person contracted with, or their agents, to any justice of the place where the offender may be em- ployed or found, or shall have contracted, be apprehended under a warrant from the justice, and may be committed to the house of correction for hard labour for not more than three months, and a proportionate part of his wages may be abated during the imprisonment, or the offender may be punished by abating the whole of his wages, and discharged from the service, under the hand and seal of the justice, gratis (a). When employers reside at a distance from the business, and are occasionally absent for long periods of time, either beyond the seas or at considerable distances, and in such cases entrust their business to the management of agents, the agents may be summoned instead of the masters, and in the same manner specified in the recited acts, and ordered to pay the wages due, but not exceeding 101. ; and in default of payment for twenty-one days the amount may be levied by distress and sale of the goods of the master (4). Before conviction for absence it must be shown that it was without lawful excuse (c). Written agreements are often entered into by miners for short specified periods. In the northern coal districts these are generally called pit bonds. Ina case of this kind, where the agreement stipulated, that when the pit should be “ off work,” the collier should continue the servant of the owners, subject to their orders, and should perform a full day’s work on every working day: it was held, that the owners were not bound either to keep the (a) 4 Geo. 4, c. 84 8.3. (c) Rider ». Wood, 29 L. J., M. (2) Sect. 4, C1. 28 630 REMEDIES. [CHAP. XIII. pit at work, or to employ the collier on all reasonable working days (d). An agreement in writing was made between a collier, and an owner on behalf of himself and partners, whereby the collier was to be paid fortnightly wages, to serve the partners exclusively, and not to leave the service without giving twenty-eight days’ notice, and not till after its expi- ration. The partners agreed that the collier should not be discharged without the like notice. It was held, on a conviction under 4 Geo. 4, c. 34, for absence without lawful excuse, that the contract was not void for want of mutuality, as the employers were bound by implication to pay reasonable wages and to find work (e). An infant may enter into a contract of this kind, if it is beneficial to himself. If not beneficial, he may avoid the contract at any time(f). The question of benefit seems to be one for the jury, so far as it depends on fact. But if a contract is manifestly not beneficial on the face of it, the Court will adjudge it accordingly. Thus, where a con- tract stipulated, that, in case the steam-engine should be stopped from accident or any other cause, the master might retain all the wages during that time, it was held, that such a clause was inequitable, and the conviction was quashed (9). It has been decided that all the above provisions extend only to cases where the relation of master and servant really subsists; and that if work is contracted to be done for a sum certain, or if the hours of work are entirely left (d) Williamson v. Taylor, 5 Q.B. (g) Reg. v. James Lord, 12Q. B. 175; 1D. & M. 398; 18 L.J.,N. 757;17L.J.,N.S.,M.C. 181. As S.,Q. B. 81. See Ex parte Bailey, to parish settlements gained under 23 L. J.. N.S., M. C. 161. pit bonds, see R.v. Byker, 2B.& C. (e) Whittle v. Frankland, 2 B.& 114; R. »v. St. Helens, Auckland, 4 8. 49; 31 L. J.. M. C. 81. See B.& Ad. 718; R. v.Cowpen, 5 Ad. Nowlan v. Ablett,2C. M.& R. 57. & 3833; R. v. Walbottle, 9 Q. B, (f) Wood v. Fenwick, 10 M. & 248; 15 L,J.,N.S., M.C. 153, W.195; 11 L.J.,N.8., M,C, 127, SECT. v. | DISPUTES WITH WORKMEN AND AGENTS. 631 to the discretion of the contracting party, this relation will not be considered to exist (h). But the contract need not be for any specified time (2). II. We may, therefore, proceed to inquire into the remedies in those cases in which the parties do not stand in the strict relation of master and servant. It is a usual practice in mining districts for the owners of mines to make contracts with their workmen in the fol- lowing manner :—A certain number of workmen contract to raise ore from the workings for a certain period, for three, six or twelve months. Each miner engages to la- bour for a certain number of hours in the week, for in- stance, eight hours a day, and to make his drift in a certain manner, according to a specified height and width. The workman are to be paid a certain sum for every measure of ore raised within the time (A). Part of the money due to the workmen is often paid from time to time on account, and a regular settlement takes place at the end of the period or year. Such cases as these, it appears, cannot be considered to be within the preceding pro- visions, because the distribution of time is left to the dis- cretion of the miners, who also often employ others in their stead. A legal partnership will be formed by persons entering into such contracts. It has been expressly decided that a partnership may subsist in cases where parties contribute nothing but personal labour (2). Such persons will, there- fore, become subject to the usual liabilities of partners. If the existence of a partnership can be proved, the act of one will, in general, bind the rest. Thus, the signature of the contract, the receipt of money, and the settlement (h) Hardy v. Ryle, 9 Barn. & C. M.C. 111. 608; Branwell v. Penneck, 7 Barn. (xk) See Bull v. Price, 7 Bing. 237; & C. 536; Lancaster v. Greaves,9 5 Moo. & P. 2, Barn. & C. 628. (1) Peacock v. Peacock, 16 Ves. (i) Willett v. Boole, 1 Cox, Mag. 49; Reid v. Hollinshead, 4 Barn. & Ca, 195; Taylor v, Porter, 31 L. J., C.878; 7 Dow. & R. 444, v 632 REMEDIES. [CHAP. XII. of accounts between the employers and the workmen, by any one of the parties, will be binding upon the whole. If these mining contracts are not to be performed within the space of one year, they must be in writing and signed by the parties intended to be bound. If they are to be performed within the year, they will be exempt from the operation of the Statute of Frauds (m). If they are reduced into writing, no stamp, it is con- ceived, will be required in cases of mines of uncertain value. The value of the contract will not be measurable; for the value of the mine itself may be temporarily, or at any rate beyond the period embraced by the agreement, destroyed by the events of a day. The workmen may possibly realize nothing. It may be otherwise in cases where the existence and production of the mineral can be depended upon with certainty, though this may be doubted. Agreements for the hire of any ordinary labourer are exempt from duty. If in cases like these, which may not be considered to be within the preceding provisions, the workmen should refuse to proceed in the proposed work, or should conduct the workings in an improper manner, or contrary to stipula- tion, the employers may bring an action for breach of contract. A contract cannot be rescinded by one party so as to receive back money already paid, unless the other party concur in treating the agreement as abandoned ab initio, or unless it were part of the original bargain that, in a certain event, this result should take place (7). As a general rule, a contract cannot be altogether rescinded by one of the parties, when both of them cannot be placed in the same position as before the contract was entered into(o). A master miner, therefore, cannot resist the payment of wages in respect of what has been already done by the workmen. It has been seen, that he may (m) 29 Car. 2, c. 8,8. 4. (c) Hunt v. Silk, 5 East, 449; (n) Payne v. Whale, 7 East, 274. Beed v. Blandford, 2 Y. & J. 278. SECT. V.] DISPUTES WITH WORKMEN AND AGENTS. 633 bring an action for breach of contract. This remedy would, however, in general, prove of no service against such persons. But he may refuse to pay the full amount of the demand; and if the workman should bring an ac- tion against the employer for the full amount due, the latter will be allowed to plead the insufficiency of the work, and the breach of condition. A sum may be paid into Court, and the damages of the plaintiff may be reduced to that amount; or if the circumstances should seem to warrant such a proceeding, the whole demand may be resisted, and the defendant may deny the right of the plaintiff to any compensation at all. It will make no difference in this respect, even if a specific sum has been agreed upon(p). Notice of the nature of the defence should, in such cases, be given to the plaintiff(q). If a workman should persist in working and keeping possession of a mine after the contract has been rescinded or completed, an action of trespass or ejectment may be brought against him. In a dispute with workmen who were employed in win- ning and stacking iron stone, an action at law was referred to a mining agent—objections having been made by the defendants to a legal arbitrator. The arbitrator called in an attorney to sit with him. The defendants objected, and withdrew from the reference. The arbitrator made an ex parte award, which was set aside (r). If there be no express contract to complete work before the payment of any remuneration, as in the case of ship- wrights, the workman may, after he has proceeded with a portion of the work, refuse to continue it unless he is paid for the work performed, and he may recover to that ex- (p) Duncan v. Blundell, 3 Stark. dage v. Cole, 1 Saund. 320. R. 6; Basten v. Butter, 7 East, 479 ; (q) Basten ». Butter, Germaine v. Germaine v. Burton, 3 Stark. R.32; Burton, supra. Havelock v. Geddes, 10 East, 564; (r) Proctor v. Williamson; 3 Com, Wilbeam v. Ashton, 1 Camp. 78; B.(N.S.) 386; 29 L. J., C. P. 157. Bragg v. Cole, 6 Moor. 114; Por- 63+ REMEDIES. [CHAP. XIII. tent (s). But it has been held, that, by the express and uniform custom of any particular trade, no payment can be compelled unless the work is completed (¢). Special provisions have been made with respect to work- men employed in coal and iron works. Any persons entering into any bargain or contract in writing, for raising or getting any coal, culm, iron stone or iron ore, and wilfully working the same in a different manner to their stipulations, and contrary to the will of the owner or his agents having the care thereof, or de- sisting or refusing to fulfil their engagements, and con- victed, either by confession or evidence, before one or more justices, shall forfeit a sum not exceeding forty shillings, with the costs of conviction, and in default of payment may be committed to gaol for not more than six months; and upon such conviction every such bargain or contract will become void (wz). * The owners and lessees of coal, iron stone and iron ore, when contracting to get the minerals raised by weight, are often under the necessity of advancing money to the miners upon the measure of the heaps worked, before they are weighed. Great frauds were practised by the miners, who obtained more money than they had earned and con- veyed iron stone from one heap to another, and it has, therefore, been enacted, that if any persons shall wall or stack any coal, iron stone or iron ore in any false or frau- dulent manner, with an intent to deceive their employers, or shall remove any iron stone or iron ore, with intent to defraud the persons who have raised it, may be convicted before one justice, and committed by him to the house of correction or gaol for not more than three months (x). The provisions contained in the above two paragraphs have no reference to any other minerals than coal and (s) Roberts v. Havelock, 3 Barn. Car. & P. 743, as to buity colliers. & Ad. 404. (u) 89 & 40 Geo. 3, c. 77, s. 3. (t) Gillett v. Mawman, ] Taunt. (a) Sect. 4. 137. See Bannister v. Bannister, 9 SECT. V.] DISPUTES WITH WORKMEN AND AGENTS. 635 iron, and the removal from any heap, by any persons, with intent to defraud the labourers only, is only punishable in cases of iron stone or iron ore (y). The offence of taking ores and other minerals from the heaps of the workmen, for the purpose of enabling the wrong-doers to gain more wages than are justly due to them, is now provided for by an act relating to the Stan- naries (z). III. It is enacted by a recent statute, commonly called the Truck Act, that all contracts for the hiring of any artificer in any of the trades following, viz., in the making, casting, converting or manufacturing of iron or steel, or any parts, branches or processes thereof, or in the working or getting of any mines of coal, iron stone, limestone, salt rock, or in the working or getting of stone, slate or clay, or in the making or preparing of salt, bricks, tiles or guarries, and in various other trades particularly men- tioned, or for the performance, by any artificer, of any labour in any of the said trades, the wages of such artificer shall be made payable in the current coin of the realm only ; and any contract making the wages payable, and all payments, in any other manner shall be void (a). Any contract, containing any provision with respect to the place where, or the manner in which, or the person or persons with whom, any part of the wages shall be laid out or expended, shall be void (8). The act contains various provisions with respect to the recovery of wages not paid in the current coin, but it is declared not to invalidate the payment of wages in bank notes or orders payable on demand within fifteen miles (c). Penalties may be recovered from employers entering into such illegal contracts (d). Certain exceptions are made with respect to deductions for mining materials and tools, fuel, medical attendance, (y) See R. v. Webb, 1 Moo. C, C. (b) Sect. 2. 431. (c) Sect. 8. (2) 2 & 3 Vict. v. 58, s. 10. (d) Sects. 9 to 12. (a) 1 & 2 Will. 4, c. 37,88. 1, 19,3. 636 REMEDIES. [CHAP, XUI. hay, corn or provender, rent; but such deductions are not to exceed the real value, and the agreements for them must be signed by the workmen (d). The materials sup- plied to a miner must be by way of sale, and not under a mere contract for hiring (e). A person employed in loading iron stone at a certain rate per ton, who was not bound to give his own labour, and who employed others chiefly, working himself occa~- sionally, was held not to be within the act (f). Two or more working colliers, who join together, and enter into agreements with their employers to get coal or iron stone from certain pits, at a certain rate per ton or per yard, are called butty colliers. They are bound to work themselves; but they also often employ other men to increase the quantity raised, for whose wages they are responsible. In a case of this kind, where no particular quantity was agreed to be worked in any specified time, and several additional men were employed, the butty col- liers were held to be artificers within the meaning of the act (g). But this decision has been overruled in a case in the Exchequer Chamber. A labourer had contracted to make bricks for a railway, at a certain rate per thousand, and was not bound to give his personal labour. He worked himself, and employed others. It was held, that the pay- ment could not strictly be termed wages, and that the original contractor was not within the act (A). The same rule has since been directly applied to the case of butty colliers, who were bound to give personal labour, and who were declared not to be artificers within the meaning of the act (2). The persons employed by colliers, as drawers, who may (d) 1 & 2 Will. 4, c. 37, s. 23. B. 584; 25 L. J., Q. B. 371. See (e) Cutts v. Ward, 36 L. J., Q. B. also Weaver v. Floyd, 21 L. J., Q. B. 161. 151 (also overruled). (f) Sharman »v. Sandars, 22 L. J., (h) Ingram v. Barnes, 7 El. & B. N.S. C. P. 86; 13 C. B. 166; 115, 132; 26 L. J., Q. B. 319. Archer v. James, 1 Cox, Mag. Ca. 2. (i) Sleeman v. Barrett, 2 Hurl. & (g) Bowers v. Lovekin, 6 El. & C. 934; 33 L. J. Exch. 153, SECT, V.] DISPUTES WITH WORKMEN AND AGENTS. 637 be discharged by the manager, but who receive their wages from the colliers, cannot claim wages from the owner, on his bankruptcy, under the bankrupt law (/). This act will, of course, only apply to those mines parti- cularly enumerated in it, but it would seem to apply to all quarries, and also to all descriptions of workmen, without reference to their being servants merely. If any person shall by violence to the person or pro- perty, or by threats or intimidation, or by molesting or in any way obstructing another, force or endeavour to force any workman employed in any manufacture, trade or busi- ness to depart from his work, or prevent or endeavour to prevent any workman, not being hired or employed, from hiring himself or accepting employment, or if any person shall, in a similar manner, do violence to, or threaten or obstruct another for inducing such person to belong to any club or association, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not be- longing to any particular club or association, or not having contributed, or having refused to contribute to any com- mon fund, or to pay any fine or penalty, or on account of his not having complied, or his refusing to comply with any rules, orders, resolutions or regulations made to obtain an advance, or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work, or to regulate the mode of carrying on any manufacture, trade or business ; or if any person shall in a similar manner force, or endeavour to force, any manufacturer or person carrying on any trade or business to make any alteration in his mode of regulating, manag- ing, conducting or carrying on the same, or to limit the number of the workmen or servants; every person so offending, being convicted thereof, shall be imprisoned, with or without hard labour, for any term not exceeding three calendar months (A). (J) 12 & 18 Vict. c. 106, s, 169, (t) 6 Geo, 4, . 129, s 8. See 638 REMEDIES. [ CHAP, XIII. The act does not extend to any meetings, either by masters or workmen, for the purpose of consulting upon and determining the rate of wages or prices, or the hours of employment, or to entering upon any verbal or written agreements for these purposes (J). All offenders may be compelled to give evidence, and will be indemnified from the consequences; and the re- quisite proceedings under the act are particularly pointed out. By another statute, any person convicted of any assault, committed in pursuance of any conspiracy to raise the rate of wages, may be sentenced by the Court to be im- prisoned, with or without hard labour, for any term not exceeding two years, and may (if it shall think fit) be fined, and required to find securities for keeping the peace (m). By 22 Vict. c. 34, no agreement between workmen or other persons for fixing the rate of wages, or for endea- vouring peaceably and in a reasonable manner, and without threat or intimidation, direct or indirect, to persuade others to cease or abstain from work, in order to obtain the rate of wages, or any altered hours of labour, shall be liable to prosecution or indictment for conspiracy. But the enactment shall not authorize any breach of contract, or any attempt to induce any workman to break his contract. By 24 & 25 Vict. c. 100, s. 41, any assault committed in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or respecting any trade, busi- ness, or manufacture, or any person concerned or em- ployed therein, is a misdemeanor, punishable by imprison- ment for not more than two years, with or without hard labour. Regina v. Rowlands, 17 Q. B. 671; Reg. v. Bykerdike, 5 H. & N. 30; 91L. J. M. C. 81; 2 Dear. C.C. 1 Moo. & R. 179. R. 364; Walsby v. Autrey, 30 Ibid. (1) 6 Geo. 4, c. 129, s. 4. 122; Ex parte Perham, 29 Ibid. 33; (m) 9 Geo. 4, c. 31, s. 25. SECT. V.] DISPUTES WITH WORKMEN AND AGENTS. 639 A combination on the part of employers, formed for counteracting unions on the part of workmen, is not illegal. But if the object is sought to be carried out by means opposed to public policy, any bond or agreement for such purposes will be invalid. Thus, a bond recited various evils arising from certain combinations of workmen, and their disastrous consequences as well to property as to the rights of the labourers themselves, and then contained several undertakings with respect to the amount of wages, the hours of work, and general discipline and manage- ment, in conformity to law, and to the resolutions of a majority of employers convened from time to time. It was held by the Court of Queen’s Bench, after a differ- ence of opinion, that the bond was illegal, as being in restraint of trade and of the free action of individuals (7). V. A workman employed in any dangerous occupation takes it with all ordinary risks. The master is bound to provide for the safety of his workmen, as far as can reasonably be expected, and he must not use any art to conceal dangers, but he is not obliged to take more care of his servant than would be proper for himself. If a work- man reasonably apprehends danger from any particular acts, he may decline to dothem. If he willingly or wilfully encounters dangers which are known to himself, or which are notorious, the master is not responsible (0). Thus, a coal owner will not be liable for accidents from explosions of gas found in the due course of working, or from eruptions of water, if ordinary precautions have been taken by him. But a master is bound to protect his workmen against un- necessary risks in works of danger (p). When an employer interferes personally, it is his duty to see that the tackle and apparatus are secure, and he will (n) Hilton v. Eckersley, 24 L. J., (p) Bartonshill Coal Company v. N. S.; Q. B, 353. Reid, infra; Ormond v. Holland, E. (0) Dynen v. Leech, 26 L. J.. B.& E, 102, Exch, 221. 640 REMEDIES. [ CHAP, XIII. be liable for want of due care(g). But he is not liable for injury, if he has deputed his authority to proper agents or servants, and has provided proper machinery (7). A partner, working with an ordinary workman, is still liable as a master, and all the partners are liable, if the negligence is within the scope of the common partner- ship (s), although the absent partners are ignorant of the negligence (¢). An owner, who has notice of insufficient fencing of dan- gerous machinery, from want of repair or otherwise, is liable for injury to a workman who has used ordinary cir- cumspection (w). The Inspection Acts do not preclude any right of action at common law for special damage (2). An employer is not liable for an injury caused to one workman by the negligence of another. Thus,—a work- man was engaged, at the bottom of a pit that was being sunk, in filling a tub with water. The employer had pro- vided proper apparatus, but the workman at the top neg- lected to use it—and the tub fell down again and injured the workman below. It was held, that he could not sue the employer for the injury (y). A case of this kind was brought from the Scotch Courts to the House of Lords. The owners of a coal pit, near Glasgow, had engaged the plaintiffs as ordinary miners. In being drawn up the shaft, the engineman neglected to stop the cage at the proper time, and they were dashed against machinery at the top, and killed. The owners (q) Roberts ». Smith, 2 Hurl. & N. 213; 26 L. J., Exch. 319; Bry- don v. Stuart, 2 Macq. 34. (r) Bartonshill Coal Company v. Reid, infra; see also Brown v. The Accrington Cotton Spinning Com- pany; 34 L. J., Exch. 208; 3 Hurl. & C. 511. (s) Ashworth v. Stanwix, 20 L.J., Q. B. 183. (t) Mellors v. Shaw, 30 Ibid. 333. (u) Holmes v. Clarke, 30 L. J., Exch. 135. (z) Couch v. Steel, 3 E. & B. 409. (y) Griffiths ». Gidlow, 3 Hurl. & N. 648; 27 L. J., Exch. 404. SECT. V.| DISPUTES WITH WORKMEN AND AGENTS. 641 were held to be liable in the Scotch Courts, but the de- cision was reversed in the Court of Appeal (z). The rule does not apply, when servants are engaged in different departments (a). The same freedom from liability will arise, when the workmen themselves have induced the accident. One of the special rules for the direction of the engine- men and banksmen of a colliery provided for the daily use of a test for the rope and tackling. The rule had been neglected for many weeks, with the knowledge of the coal- owner and the miners. The rope was at last injured by an accidental fire in the night—and, next day, several miners were killed. They had been warned by the banks- man to examine the rope at the time. It was held, that the negligence of the miners had materially contributed to the accident, and that an action against the owner could not be maintained (5). A coal miner was injured by the fall of a stone from the roof, which had lost its support by the removal of the coal below. The removal of the coal, and the support of the roof by artificial propping, should have proceeded simul- taneously. The miner had pointed out the stone as dan- gerous to an underlooker of the owners, who gave no personal superintendence. But the underlooker, who was also a working miner, took no step to secure safety, and the next day the injury occurred. It was held, in the absence of evidence, that the owners had not (x) Bartonshill Coal Company v. Reid, 3 Macq. 295. See also Far- well v. The Boston and Worcester Corporation (U.S.), 4 Metcalf, 49; Morgan v. The Vale of Neath Rail- way Company, 35 I. Jag Q. Bs 28; Paterson v. Wallace, 1 Macq. 748. (a) Bartonshill Coal Company ». Macguire, 8 Macq. 807; Walter v. The South-Eastern Railway Com- pany, 32 L. J., Exch. 209; Potter v. B. Faulkner, 1 Best & S. 800; 31 L. J., Q. B. 30; Warburton v. The Great Western Railway Company, 36 L. J., Exch. 9. (b) Senior v. Ward, 1 E. & E. 885; 28 L.J.,Q. B. 139. See Sey- mour v. Maddox, 16 Q. B. 326; 20 L. J.,Q. B. 327; Couch ». Steel, 3 Ell. & B. 402; 23 L. J.,Q. B. 121; Witherley v. The Regent’s Canal Company, 12 C. B., N.S. 2. TT 642 REMEDIES, [ CHAP. XIII. exercised due care in the selection of the underlooker, or that the mine was not in a proper condition before the miners were sent into it, that they were not answer- able for the injury caused by the negligence of the under- looker, who was a fellow-labourer (c). By 9 & 10 Vict. c. 93, whenever death ensues from any wrongful act, neglect or default, the person who would have been liable to an action, if the person injured had not died, is still made liable, although the death might have been caused by an actual felony. Every action must be brought by the executor or administrator of the deceased, and the damages must be divided among the wife, husband, parents and children in such shares as the jury shall direct. The action must be commenced within twelve calendar months from the death. There must have been a reason- able expectation of pecuniary advantage to the surviving relatives, if death had not occurred (d). VI. An agent may contract with his employer, as in cases of trustees, if he has afforded the principal the means of an independent judgment with respect to any transac- tion, as by the employment of other competent advisers. But he will not be allowed to take any advantage from his relation, and he cannot otherwise divest himself of that re- lation in any transactions. In one case of this kind, the agent was the lessee of his employer's coal mines, and committed several frauds, particularly in the purchase of other property, and in the working of the coal of other proprietors, by means of outstroke, for his own benefit, and without power for that purpose in the lease. A general account was decreed after a long lapse of time, on (c) Hall v. Johnson, 34 L, J., J., Q. B. 233; Paterson v. Wallace, Exch. 222; 3 Hurl. & C. 589. 1 Macq. 748 ; Duckworth v. Johnson, (d) Blake v. Midland Railway 29 L. J., Exch. 25; 4 Hurl. & N. Company, 18 Q. B. Rep. 93; 21 L. 658. - SECT. V.] DISPUTES WITH WORKMEN AND AGENTS. 643 the ground that a plaintiff, so placed, is not liable to the ordinary imputation of negligence in not establishing his claims sooner. But interest was only allowed from the time of filing the bill, chiefly on the ground of acquiescence (e). It was covenanted in a lease, that the lessor might em- ploy a fit person for weighing the coals, and that his wages should be paid by the lessees, but that if the person should not duly attend, and duly keep the accounts, the lessees might discharge him. An action was brought against the lessees on the covenant, who pleaded that the person was not a fit person, and gained a verdict. It was held, in the Court above, that the lessor was not entitled to judgment, notwithstanding verdict, as the appointment of a fit per- son was a condition precedent to the liability to pay his wages (f). (e) Beaumont v. Boultbee, 5 Ves. 795; 11 L. J., N. S., Exch. 314. 485; 7 Ves. 599; 11 Ves. 358. See Armitage v. Insole, 19 L. J., (f) Lawton v.Sutton,9 M.& W. N.S., Q. B. 202. ( 644 ) CHAPTER XIV. STATUTORY REGULATION AND INSPECTION OF MINES. SEVERAL statutes have been passed on these subjects, which may be briefly noticed. Acts have been passed to prohibit the employment of women and girls in mines and collieries, and to regulate the employment of boys. It is enacted by 5 & 6 Vict. c. 99, amended by 23 & 24 Vict. c. 151, that no females may be employed within any mine after the first day of March, 1843. No male under twelve years may be em- ployed, subject to exceptions, viz.:—a boy above ten years and under twelve years may be employed, if the mine owner shall obtain a certificate from a competent schoolmaster that the boy is able to read and write, or, that he has attended school for not less than three hours a day for two days in each week during every lunar month immediately preceding, exclusive of Sunday attendance. The certificates are to be filed by the owner, and produced to any inspector under the acts, or to any inspector of coal mines and ironstone mines. [very person giving a false certificate is made subject to penalties. Inspectors may be appointed. No person under ten years can be apprenticed, and no apprenticeship can be for more than eight years. Exception is made in favour of masons, joiners, engine-wrights, and other mechanics whose services may be required occasionally below. The acts do not affect mining works above ground. When a mine is entered by a vertical shaft or pit, or inclined plane, or when there is any internal communication of that kind, no owner shall allow the care of any steam or other engine, windlass or gin, however worked, or any part of the appa- CHAP. XIV.] STATUTORY REGULATION OF MINES. 645 ratus, to be committed to any other than a male of eighteen years or upwards. By the first act, it is also prohibited to pay the wages or sums for services due to any persons employed in or about any mines or collieries at any tavern or public-house or any place belonging thereto ; and all such payments are declared to be void (a). Agents may be punished for offences against the acts, when the owner is ignorant of the offence. The acts provide for the recovery of penalties and for imprisonment on nonpayment. An appeal is given to the Quarter Sessions, but convictions cannot be removed by certiorari. The inspection of mines is now regulated by 23 & 24 Vict. c. 151, which repeals 18 & 19 Vict. c. 108. The inspection extends to all coul mines and collieries, and mines of ironstone of the coal measures, and worked in connection with coal or with any disused or exhausted coal mines. The inspectors are appointed and removable by a secretary of state. No land agent, or manager, viewer, or agent, or mining engineer, or valuer of mines, or arbitrator in any dispute arising between mine owners, nor any person otherwise employed in any mine, shall act as an inspector. The following general rules are to be observed by all owners and agents :— 1. An adequate amount of ventilation shall be constantly pro- duced in all coal mines and collieries and ironstone mines, to dilute and render harmless noxious gases, to such an extent, that the working-places of the pits, levels, and workings of every such col- liery and mine, and the travelling roads to and from such working- places shall, under ordinary circumstances, be in a fit state for working and passing therein : (5) 2. All entrances to any place not in actual course of working and (a) 5 & 6 Vict. c. 99, ss. 10, 11. as to ventilation from Saturday to (b) See Knowles v. Dickinson, 2 Monday, under the repealed act. E. & E. 705; 29 L. J., M. C. 135, 646 STATUTORY REGULATION [ CHAP. XIV. extension, and suspected to contain dangerous gas of any kind, shall be properly fenced off so as to prevent access thereto: 3. Whenever safety lamps are required to be used, they shall be first examined and securely locked by a person or persons duly authorized for that purpose : 4. Every shaft or pit which is out of use, or used only as an air pit, shall be securely fenced: 5. Every working or pumping pit or shaft shall be properly fenced when operations shall have ceased or been suspended : 6. Every working and pumping pit or shaft, where the natural strata, under ordinary circumstances, are not safe, shall be securely cased or lined, or made otherwise secure : 7. Every working pit or shaft shall be provided with some proper means of communicating distinet and definite signals from the bottom of the shaft to the surface, and from the surface to the bottom of the shaft: 8. All underground self-acting and engine planes on which per- sons travel are to be provided with some proper means of signalling between the stopping places and the ends of the planes, and with sufficient places of refuge at the sides of such planes, at intervals of not more than twenty yards: 9. A sufficient cover overhead shall be used when lowering or raising persons in every working pit or shaft, where required by the inspectors : 10. No single-linked chain shall be used for lowering or raising persons in any working pit or shaft, except the short coupling chain ‘attached to the cage or load: 11. Flanges or horns of sufficient length or diameter shall be attached to the drum of every machine used for lowering or raising persons: 12. A proper indicator to show the position of the load in the pit or shaft, and also an adequate break, shall be attached to every machine, worked by steam or water power used for lowering or raising persons: 13. Every steam boiler shall be provided with a proper steam- gauge, water-gauge, and safety valve: 14. The fly wheel of every engine shall be securely fenced: 15. Sufficient bore holes shall be kept in advance, and, if necessary, on both sides, to prevent inundations in every working approaching a place likely to contain a dangerous accumulation of water. Besides these rules, every mine shall have such special rules for the guidance of the managers, and the persons employed, as are best calculated to prevent dangerous accidents. The special rules in use are confirmed. In other cases, the rules shall be framed by the owner, trans- CHAP. XIv.] AND INSPECTION. 647 mitted to the state office, and, if not there objected to within forty days, shall be established. Before transmis- sion, the special rules are to be hung up, painted or printed on a board, in the principal office, and at the place where the workmen are paid. They are also to be framed and transmitted within three months from commencement of act, or of working. If the secretary of state deems the rules insufficient, he may, within the forty days, pro- pose alterations or additions, and if the owner shall not object to them within twenty days, the rules shall be esta- blished with them. If he should so object, he may, within fourteen days, nominate five or more disinterested mining engineers or other competent persons of experience, of whom the secretary shall appoint one or more, to determine the difference, and to decide the special rules. If the owner shall not so nominate, one such arbitrator shall be appointed by the owner and another by the district in- spector—and the two arbitrators, before entering into the matters, shall appoint a third, as umpire in case of dif- ference. If they refuse or neglect to appoint an umpire for seven days, the chairman of Quarter Sessions, in England, and the sheriff, in Scotland, may appoint the umpire. The decision of the arbitrators and umpire, or any two of them, is final. Provision is made for the death, incapacity, or refusal or neglect to act, of any arbi- trator, and for the non-appointment of an arbitrator by the owner. After the special rules are established, the owner or the secretary of state, may propose amendments, subject to the same process of approval as the original rules. The general as well as the special rules shall be hung up on a board in the manner before mentioned. Any inspector may enter into the mines and works at all reasonable times, by day or night, but so as not to impede the working, and to examine the state of the mines, works, and machinery, and as to ventilation, the mode of lighting and using lights, and all matters relating 648 STATUTORY REGULATION _[CHAP. XIV. to the safety of the miners, and the observance of the act. The owners are required to furnish the means of entry and inspection. If the inspector find any mine, or the works, or machinery, or matter or practice, to be dan- gerous or defective, so as to threaten bodily injury, he must give notice in writing to that owner or agent of the particular grounds of his opinion, and report them to the secretary of state. Any difference shall be de- termined by arbitration, as above described—but with penalties on the owner, if the danger or defect be not forthwith removed or remedied, or if he fails to proceed with the nomination of arbitrators, or if he neglect to obey the award. The owner or agent must, on inspection, produce ac- curate plans of the workings of the mine; and in case of nonproduction of the plans, or the withholding of any part, or of the concealment of any parts of the workings from inspection, or of imperfection or inaccuracy of the plans, the inspector may require an accurate plan of the actual workings to be made within a reasonable time, at the costs of the owners, on a scale of not less than two chains to one inch, or on the actual working scale of the colliery, in which the workings shall be brought up to within six months of the time of inspection, and the owner or agent may be required to mark the progress of the workings up to that time. But the inspector is not authorized to make a copy of any plan so produced or made. In case of loss of life or any personal injury by explo- sion, or any other accident (c), the owner or agent must, within twenty-four hours, send notice of it, under his hand, to the secretary of state, in England, and to the lord advocate, in Scotland, and in all cases to the district inspector, specifying the probable cause of the accident. (c) See Underhill v. Longridge, 29 L. J., M. C. 65, as to omission of words in former act. CHAP. XIV. ] AND INSPECTION. 649 The notice may be sent in each case by post. Every coroner on any inquest shall, in the absence of the inspector or of any person attending on behalf of the secretary of state, adjourn the inquest, and, by letter, sent four days at least before any adjourned inquest, by post, addressed to the inspector, give notice to him of the place and time of holding it. The body may be identified and interred. If the accident has not occasioned more than one death, and notice of the inquest has been sent, by post, by the coroner to the inspector, not less than forty-eight hours previously, the inquest need not be adjourned, if a ma- jority of the jury think it unnecessary. The inspector may examine any witness at the inquest, subject to the order of the coroner. When any mine is abandoned, or its working discon- tinued, or recommenced after abandonment or discontinu- ance for two months or more, or when any working is commenced for opening a new mine, the owner must give notice thereof to the inspector, by post, within two months. In cases of abandonment or discontinuance, the owners must cause the workings to be securely fenced, for the prevention of accidents. The act is enforced by penalties. No owner of the mine in question, nor his father, son, brother, or agent, can act as a justice of the peace in any cases of dispute between persons employed and their employers. A copy of the special rules, certified under the hand of any inspector, shall be received as evidence. Every inspector, on or before the first of March in every year, shall make a separate and distinct report in writing, of his proceedings during the preceding year, and shall transmit it to a secretary of state, and a copy shall be laid before both Houses of Parliament. The wages of all persons employed in mines within the act shall be paid by the immediate employer in money, at an office appointed for that purpose in the special rules— and such office shall not be contiguous to any house where 650 STATUTORY REGULATION [CHAP. XIV. spirits, wine, beer, or other spirituous liquors are sold, under a penalty not exceeding 101. When the persons employed are paid by the weight, measure, or gauge of the coal, ironstone, or other mate- rial, they are empowered, at their own cost, to station one of the employed persons at the place for weighing, measuring, or gauging, to take an account thereof,—but without authority to impede the working of the mine, or to interfere with the weighing, measuring, or gauging. The act does not extend to Ireland. When there are several joint owners of a mine, pro- ceedings may be taken against one owner only(d). An act has been passed to amend the law relating to coal mines—25 & 26 Vict. c. 79. It is, in fact, an act for amending the Inspection Act, and it applies to the same mines only as are comprised in that act. All mine owners are forbidden, after lst of January, 1865, to employ any persons in the mines, unless there are in communication with every seam at work for the time being at least two shafts or outlets, separated by natural strata of not less than ten feet in breadth, by which shafts or outlets distinct means of ingress and egress may be available. But the two shafts or outlets need not belong to the same mine, if there be the same available means of ingress and egress. The enactment is not to apply to opening a new mine for searching or proving minerals, nor to any working for making a communication between two or more shafts, so long as not more than twenty persons are employed at any one time in the new mine or working. If an owner of any mine then existing and in work shall object in writing, addressed to any secretary of state, that by reason of the nature of the mine, or from its being nearly exhausted, or from any other special cause, he ought to be exempted from providing an additional shaft (4) Reg. v. Brown, 7 E. & B.757; 26 L.J., M. C. 183. CHAP. XIV. | AND INSPECTION. 651 or outlet, or that he cannot comply with the act within the time, a reference will be made to arbitration. If its result is in favour of the owner, he shall be relieved from such obligation, or have such an extension of time for mak- ing an additional shaft or outlet as may be awarded. If the result be against him, or if no award be made by reason of any default or neglect on his part, he will be bound to comply with the provisions of the act. Arbitrations are to be conducted according to the 13th section of the former act. No objection by the owner can be enter- tained, unless it be made within six calendar months after the passing of the act, in a claim of exemption, and within the same period preceding the Ist of January, 1865, in a claim for extension of time. An injunction may be granted by any of the superior courts of law or equity, on the application of the attorney- general, for prohibiting the working of any mine in con- travention of the act. No agreement made before the passing of the act shall be allowed to prevail against any owner during such acts as may be necessary for providing an additional shaft or outlet. ( 652 ) CHAPTER XV. THE COAL TRADE. Various legislative measures have been adopted upon this subject, and it may be proper to give some account of those now in operation. All keels, boats, waggons, wains, carts, and other car- riages, used for the conveying of coals in any of the ports, may be admeasured by commissioners appointed for the purpose; and if the marks made by them shall be re- moved or altered, every person privy to the doing of it is liable, on conviction before a justice, to a penalty of ten pounds (a). All the above articles are to be re-admeasured and marked, if the marks have been defaced by repairs or otherwise, under the penalty of the forfeiture thereof, and of the coals in them. And any person wilfully defacing the marks is liable to a penalty of not more than five pounds, nor less than forty shillings (d). By Statute 17 Geo. 2,¢. 35,8. 1, any three justices of the peace of the several counties in England and Wales and Berwick-upon-Tweed, are empowered to set the rates and prices of all coals brought by sea to all places, except into the river Thames, and sold by retail, allowing a com- petent profit to the retailer, beyond the price paid by him to the importer, and the ordinary charges. If any en- grosser or retailer of such coals shall refuse so to sell, the justices may empower persons to enter into any wharf or store place, and cause the coals to be sold at the rates fixed, (a) 80 Cha. 2, st. 1,u. 8; 6&7 Geo. 3, c. 27. W. 3, c. 10; 11 Geo. 2, u. 15; 15 (b) 31 Geo. 3, c. 36, ss. 1, 4. CHAP. XV.] THE COAL TRADE. 653 rendering the amount to the owner after deducting the necessary charges. If an action be brought against any such justice or person, the defendant may plead the general issue; and if the verdict be found for him, or in case of a nonsuit, he may recover damages and treble costs of suit. But no person interested in any wharf for the sale of coals, or trading in coals, not for his own pri- vate use, shall be concerned in setting the price (c). By Statute 52 Geo. 3, ¢. 9, s. 6, all ships in the coal trade must be measured, and the duties paid on the greatest quantity of coals, culm or cinders which it shall appear that any such ship is capable of containing. By Statute 5 & 6 Will. 4, c. 63, s. 9, it was enacted, that all coals, slack, culm and cannel of every description should be sold by weight, and not by measure, under a penalty upon the seller of forty shillings for every sale by measure. In 1836, an act was passed for repealing many provisions respecting the coal trade. Great anxiety had been, at various times, shown by the legislature in preventing any improper advance in the price of coals. With this view, it had been enacted by Statute 9 Anne, c. 28, that all agreements between persons engaged in the coal trade for restraining any persons from freely selling their coals should be illegal, and penalties of various amounts were imposed upon persons offending against this provision. In 1730, another act was passed, 4 Geo. 2, c. 30, de- claring it illegal for the owners or masters of any vessel engaged in the trade, to keep turn in the delivery of their coals in the river Thames, and also imposing penalties upon the offenders. In 1787, another act was passed, 28 Geo. 3, c. 53, by which, with the appearance of indem- nifying persons who might have incurred penalties under the former acts, it was enacted, that any number of persons united in covenants or partnerships, consisting of more (c) 17 Geo. 2, c. 35, ss. 1, 2. 654 THE COAL TRADE. [CHAP. XV. than five persons, for purchasing coals for sale, or for making regulations in carrying on the trade, should be deemed unlawful combinations to advance the price of coals, and persons concerned in them were made liable to be punished by indictment or information. It was con- sidered, however, that these provisions interfered with the free and open trade in coals, and prevented the employ- ment of large joint capital in the trade, and that they proved quite inadequate to meet the purposes contemplated by the legislature. They were, therefore, all repealed by the 6 & 7 Will. 4, c. 109. In 1831, an important act was passed for regulating the vend and delivery of coals in London and within twenty- five miles from the General Post Office (d). After re- pealing a great many former provisions, it is declared, that the Coal Exchange shall be vested in the mayor, com- monalty and citizens of the city of London for the pur- poses of the act, and shall be an open and public market for the sale of coals (e). The act then provides for the appointment of clerks and officers by the common council of London, and, if neces- sary, for the removal and enlargement of the market place (f). A duty of one penny per ton upon coals, culm and cinders in every ship coming westward of Gravesend, may be demanded from every master, for defraying the necessary expenses which may be incurred in the execu- tion of the act, which duty is to cease as often as provi- sion has been made for defraying the current expenses (4). The Court of Lord Mayor and Aldermen may make and alter bye-laws for the management of the market, and all things belonging to it, and fix penalties not exceeding 5L., for the breach of any such laws. These laws are to be approved of by the Lord Chancellor or one or more of the Judges of the Courts of Common Law, and they cannot (d) 1 & 2 Will. 4, c. 76, amended (e) Sects. 3, 4. by 1 & 2 Vict. c. 101, and 14 & 15 (f) Sects. 5 to 22. Vict. c. 146 (local). (g) Sects. 28, 24. CHAP. XV. | THE COAL TRADE. 655 be approved of unless seven days’ previous notice in the Gazette has been given of the intention to make, alter or repeal any such rules. All bye-laws are also to be printed and made public (A). All coal, cinders and culm are directed to be sold by weight, and not by measure (i). Any person knowingly selling one sort of coals for a sort which they are not, shall forfeit 101 per ton, but mot be- yond twenty-five tons (A). Various other provisions are then made with respect to the mode of sale and delivery of coals within the limits prescribed by the act, and the duties payable to the city of London (2). The right of the corporation of London, by prescription, under the charters of James I, as conservators of the river Thames, to measure or weigh any coals, was directed not to be exercised for seven years from the 3lst day of December, 1831. A duty of one shilling per ton was im- posed upon coals, cinders and culm brought into the port of London, in lieu of the former duties of fourpence and sixpence, payable under the Statute 5 & 6 Will. & Mary, ce. 10. But the rights of the corporation were to be re- vived after the period of seven years, or on the above duty ceasing to be paid. During the seven years and the payment of the duty, the corporation was not to receive the water baillage and groundage in respect of coals and coal vessels, or any sums for permits and for registering certificates, but subject to be claimed afterwards (m). Every fitter or seller of coals for the port of London is required to send, in a letter directed to the clerk of the coal market, and put into the General Post Office on the (h) 1 & 2 Will. 4, c. 76, ss. 32 to 34. Poole, 9 Barn. & C. 192; Brown». (i) Sects. 43, 44. Duncan, 10 Barn. & C. 98, in expla- (k) Sect. 45. See Butterfield v. nation of the old law. Windle, 4 East, 385. (m) Sects. 62, 68, (2) See the Act; and see Little v. 656 THE COAL TRADE. [cmap, XV. day of sailing, or to give to the master of the vessel, a cer- tificate signed by the fitter, containing the day of the month and year of loading, the names of the master and ship, the quantity of tons, the name of the collieries from which the coals are wrought, and the price paid by the master for every sort of coals shipped; and, in case of re- fusal or neglect, or giving a false certificate, the offender will be liable to a penalty of 1002 If the certificate is given to the master, it must be delivered by him at the office of the clerk of the coal market within twenty-four hours after the arrival of the vessel in the port of London, subject to the like penalty. If the fitter’s certificate be lost, or if the vessel should change her destination, and arrive without a certificate, the master is required within twenty-four hours after arrival to make a declaration to the like effect, and also accounting for the loss of the certificate, or the change of destination, under a like penalty (x). Monthly returns are to be made by the fitters or other sellers of the seaborne coal, verifying the certificates. Similar regulations are made as to coals sent to the London district by inland navigation. A collector of duties may be appointed. All railway companies bring- ing coals to the London district are to make weekly returns to the clerk of the coal market, and to pay the duties within seven days, with similar provisions for veri- fying the returns. Canal companies are to make monthly returns. Inspectors of coal traffic may be appointed. Boundary stones or marks may be erected on the line of every canal, railway or turnpike road, at the distance of twenty miles from the General Post Office, which are to define the limits of the district liable to duties. The clerk of the coal market may require the coals to be weighed, and there are provisions for defect or excess of weight. Drawbacks of twelve pence per ton are allowed for coals (n) As amended by 14 & 15 Vict. c. 146 (local). CHAP. Xv. ] THE COAL TRADE. 657 consumed by railway engines beyond the district, and for seaborne and other coals taken by ships or inland naviga- tion or railway beyond the district of twenty miles. All coal brought by railway or canal within the district, and carried out of it, without being unloaden or bulk broken, is exempted from duty. The corporation of London have a discretion in allowing a drawback of twelve pence per ton on all quantities of coke above twenty tons manu- factured within the limits, and carried out. Monthly re- turns of all claims for drawback are required. Any lighterman not delivering the whole of the coals is liable to a penalty of 100/. The other provisions are also en- forced by penalties. Coals are to include coke or cinders and culm (0). The above act was amended and continued for seven years by 1 & 2 Vict. c. 101 (local). New provisions are made with respect to the seller’s ticket to be sent with the coals delivered, the weighing machines sent with each cart, and the payment of wages. The corporation of London are empowered to make bye-laws for regulating vessels laden with coal, subject to the sanction of the Board of Trade. Both these acts were continued to the 5th July, 1862, and the duties were extended to coals brought to London by railways (p). By another act, 24 & 25 Vict. c. 42, the coal duties are continued to the 5th July, 1872. The London district is to consist of the Metropolitan Police District, and in- cludes the cities of London and Westminster. The boundary stones or marks are to be erected accordingly. The same drawbacks are to be allowed, with power to dis- pense with or vary any of the required forms. (0) As amended by 14 & 15 Vict. c. 146 (local). (p) 8 & 9 Vict. c. 101. B. UU 658 THE COAL TRADE. [CHAP. XV. The coals are directed to be weighed by weighing each sack “ with the coals therein, and afterwards to weigh, in like manner, each sack without any coals therein.” This provision is not satisfied by putting each sack of coals in one scale, against weights equal to the weight each sack should contain, and an empty sack in the other scale (9). The seller of coals cannot maintain an action for the price, if he has not complied with the provisions of the acts, as in the nondelivery of the ticket before unload- ing (r). When some of the sacks at one delivery under one con- tract are deficient, one aggregate penalty only is incurred, calculated at the rate of each sack, and not separate penalties. An action of debt is, therefore, maintainable, instead of a proceeding before justices, which is limited to 251.(s). The delivery of coals to a purchaser directly out of the seller’s coal brig at the purchaser’s wharf is not such a delivery as to be within the meaning of the words “any lighter, vessel, barge or other craft,” and therefore does not require a ticket to be given. The meaning of the word “vessel” is limited by the words “other craft” (t). Under this act, patent fuel, a composition of coal dust, tar and lime, containing 92 per cent. of coal, was held not to be liable to duty, as coal (u). The production of an entry of a contract, purporting to be signed by the buyer and factor, is not evidence of the sale in an action brought for the price of the coals, unless the buyer be proved aliunde to have signed the contract (x). (q) Meredith v. Holman, 16 M. & (€) Blanford v. Morrison, 15 Q. B. W. 798. 724; 19 L. J., N.S.,Q. B. 533. (r) Cundell v. Dawson, 4 Com. B. («) Mayor and Corporation of 376. London v. Parkinson, 10 C. B. 228; (s) Collins v. Hopwood, 15 M.& 4 New Mag. Ca. 153. W. 459; 16 L. J., N. S., Exch. 124, («) Brown v. Capel; M. & M. 374, See Reeve v. Poole, 4 B. & C. 155. CHAP. Xv. ] THE COAL TRADE. 659 In an action of debt, gui tam, for selling coals contrary to law, it was held, that the contract upon which the penalty arises must be truly stated, and any variance is fatal, and, therefore, that a contract stated to be with two persons, when it was with two and another, was a fatal variance, though the declaration stated the exact quantity which the two were to have (y). If an agent employed to sell coals make a bargain in his own name with a tradesman to furnish him with coals on credit, for which, in return, he is to receive goods, on credit, and both the coals and goods are delivered, the real seller of the coals may recover the price from the tradesman, if his name be in the ticket sent with the coals as seller, because the tradesman after that is bound to in- quire into the nature of the agent’s situation, and should not continue to treat him as a principal(z). If several persons in a club join to buy a quantity of coals, and afterwards subdivide their shares, and the coals are de- livered to each short of measure, each person cannot maintain an action for the penalty against the seller, for the contract of sale is joint (a). Coals sent from Newcastle to London are liable to a port duty according to the Newcastle chaldron (8). A local act directed to be paid to commissioners any rate or duty they should think fit to order, not exceeding the sum of three shillings, for every chaldron of coals brought into a town. It was held, that a duty was pay- able in respect of each quantity of coals amounting to a chaldron, although brought at different times and in several parcels, each containing a less quantity than a chaldron (c). (y) Parish v. Barwood, 5 Esp. 33. (b) Linskill v, Read, Peake’s Add. (%) Pratt ». Willey, 2 Car. & P. Ca. 68. 350. (c) Mills v. Funnell, 2 Barn. & C. (a) Everett ». Tindal, 5 Esp. 169. 899. uvU2 660 THE COAL TRADE. [cHAP. XV. An advertisement stated that certain coals were of a suitable quality for steam vessels, and were adapted for all closed furnace or stove fires, with other properties. The vendor of these coals gave to the purchasers a printed copy of this statement before the sale. The invoice de- scribed the coals as “steam coals.” The coals proved to be unfit for steam purposes, and the purchasers brought an action for a breach of the conditions contained in the printed statement. But they failed at the trial in proving the statement to be part of the contract. The Court afterwards amended the declaration by substituting, in- stead of the contract declared on, a statement that the coals were of fit quality for working steam-engines, and generating steam for steam-engines(d ). A railway company contracted by deed with another railway company for the transit of coals along the latter railway, for twenty-one years, in consideration of payments which varied according to the quantity of coals carried, and the amount of dividend of the latter company for the time being. It was held, that the payments were “ tolls,” within the meaning of railway acts, and, therefore, that the deed was valid (e). Disputes arise sometimes with respect to undue pre- ference given by railway and canal companies in the car- riage of coal and other merchandize. It is enacted by 17 & 18 Vict. c. 31, 5. 2, “that no railway or canal company shall make or give any undue or unreasonable preference or advantage to or in favour (d) The Pacific Steam Navigation Company v. The South Yorkshire Company v. Lewis, 16 M. & W.783; Railway Company, 9 Exch. 642; 23 16 L. J., N.S., Exch. 212. L. J., N. S., Exch. 186. (e) The Great Northern Railway CHAP. Xv. | THE COAL TRADE. 661 of any particular person or company, or any particular description of traffic in any respect whatsoever, nor shall any such company subject any particular person or com- pany, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” A writ of injunction will be issued by a Court of Com- mon Law for enforcing this enactment. In the judicial application of this section, consideration will be given to the fair interests of the railway itself, and to such ques- tions as, whether the company might not carry larger quantities, or for longer distances, at lower rates per ton per mile, than smaller quantities, or for shorter distances, so as to realize equal profits. But the Court will not sanction any preference which simply consists in giving an advantage to one competitor over another, and which is not founded on any such beneficial considera- tion (f ). A preference may be given in cases where the cost of carriage is less to the company in one case than in another; but when the object is of a speculative nature, and the pecuniary interests of the company are not shown to be affected, such a preference will not be allowed (g). The threat of a coal owner that, unless he is allowed to have his coals carried at a certain rate, he will construct a railway which will divert his coal altogether from that of the company, will not justify a preference (). In like manner the promise of a customer that he will use other lines of the company for traffic, which is distinct (f) Ransome v. The Eastern Coun- (g) Oxlade v. The North-Eastern ties Railway Company, 1 Com. B. Railway Company, supra. (N. S.) 487; 26 L. J., C. P. 91; (hk) Harris v. The Cockermouth Oxlade v. The North-Eastern Rail- and Workington Railway Company, way Company, 1 Com. B. (N. S.) 38 Com. B. (N. S.) 6938; 27 L. J., 454; 26 L. J., C. P. 129. C. P. 129. 662 THE COAL TRADE. [cHaP. Xv. from that in question, will not avail to secure a proper preference (2). A similar contract to have all the goods subject to the reduced rates carried by a railway, and not by water or other means, does not form a good consideration for pre- ference—unless it can be clearly shown that the reduction is made to prevent a competition with the railway, or that such an amount of traffic is secured by the arrangement as may compensate for the reduction (2). The adjustment of certain districts to become entitled to reduced rates, the effect of which is to give one dealer an advantage over another by reason of larger extent of custom, is not prohibited by the act. But when the effect is to diminish the natural advantages of the dealers at certain places by reason of proximity, and to abolish part of the cost of carriage to the same places in favour of other dealers, an undue preference will be given (/). A guarantee of large quantities, and full train loads, at regular periods, forms a good consideration for a pre- ference over those who cannot give such a guarantee—if the real object of the company is to secure a greater amount of profit by the diminished cost of carriage (m). The same rule has been applied to the equality clause contained in the Canal Companies Act, 8 & 9 Vict. c. 28 (n). When a reduced rate is established for the carriage of coals in certain quantities to certain districts, the company may carry the coals most conveniently for themselves, and (i) Baxendale v. The Great West. ties Railway Company, 4 Com. B. ern Railway Company, 5 Com. B. (N.S.) 809; 28 L.J.,C.P.69. See also 5 Com. B. 336 ; 28 L. J.C. P: 81. (k) Garton v. The Great Western Railway Company, 5 Com. B. (N.S.) 669; 28 L. J., C. P. 158. (2) Ransome v. The Eastern Coun- (N. S.) 135, 159; 27 L. J., C. Py 166. (m) Nicholson v. The Great West- ern Railway Company, 5 Com. B. (N.S.) 866; 28 L. J., C. P. 89. (n) Strick v. The Swansea Canal Company, 33 L. J., C. P. 240. CHAP. Xv. | THE COAL TRADE. 663 with due regard to their working expenses, without any imputation of preference of one district over another—if the tariff is not infringed (J). The measuring of coals in the counties of Northum- land and Durham is regulated by a royal commission, dated 30th August, 1830, addressed to the chief coal owners, viewers and custom officers of the district, in which are contained several specific directions as to the registry of keels, boats, waggons and carriages, their owners, their contents, and the place of their employment ; the measuring and marking of them, their alteration ac- cording to the principle of keeping a regular proportion to the legal chaldron of fifty-three hundred-weight, and the prevention of frauds; subject also to the further di- rections of the Board of Treasury or the Board of Customs. The powers of this commission are hardly ever exercised. Provisions with respect to duties are also contained in several acts relating to the ports of the kingdom. The coal whippers of the port of London were regu- lated by 14 & 15 Vict. c. 79. But the act expired in 1856, and has not been renewed. An act has been passed for repealing several acts of parliament imposing restrictions on the Irish coal trade, and for its regulation (m). Colliers and salters in Scotland were, till recent times, in a state of bondage or slavery (n). By an act, which (2) Ransome ». The Eastern Coun- (m) 2 Will. 4, «. 21. ties Railway Company, 8 Com. B. (n) Redgauntlet, 2nd vol. 314, (N.S.) 709; 29 L. J., C. P. 829, 664 THE COAL TRADE. [ CHAP. XV. recites the reproach of such a state of servitude in a free country, the workmen and their families are declared to be free (0). The law relating to the colliers in Scotland is further explained by another statute (p). An act has been passed for the better regulation of the watermen and lightermen of the river Thames (q). By the Newcastle-upon-Tyne Coal Turn Act, special provisions were made for procuring cargoes of coal for ships, in regular turn, in that port(r). The act expired in 1866, and its provisions are not intended to be renewed. (0) 15 Geo, 3, «. 28. (q) 7 & 8 Geo, 4, c. 75 (local). (p) 89 Geo. 3, c. 56. (r) 8 & 9 Vict. c. 73 (local). ( 665 ) CHAPTER XVI. LOCAL CUSTOMS. I. In Derbyshire. II. In Cornwall and Devonshire. III. The Forest of Dean. — Section I. CUSTOMS IN DERBYSHIRE. TuE lead mines of Derbyshire have been worked from the earliest period to which our national records extend. It would be difficult to trace with accuracy the origin and growth of those peculiar customs, which continue to this day to regulate the operations of the lead adventurer in many parts of this county (a). Almost all the old mining codes of Europe, whose provisions are opposed to the rights of the owner of the surface, must have origi- nated in the old Roman law, or in the royal prerogative, or in the successful assertion of high feudal privileges (0). In Spain, and in many parts of Germany, the royal right to mines is still preserved in pristine vigour. In such cases, the right exists as a fundamental law of the country (c). In our own country, the right of the crown to all mines of silver and gold betrays a similar origin. But the law of England has never sanctioned so general a (a) See Hardy’s Miners’ Guide, lips Grunds. des. D. Privatrechts, 1748; Mander’s Glossary, 1824, 225. (b) See Eichhorn, Deutsche Staats- (c) Commentaries of Gamboa, by und Rechtsges, $.297, notek; 1Phil- Heathfield. 666 LOCAL CUSTOMS. [CHAP. XVI. principle. The paramount right of the crown must cer- tainly have extended over all those districts in England which are still governed by peculiar mining laws. But this right, it is presumed, rests, not upon the general exercise of the prerogative, but upon the distinct claims of ownership over the lands now subject to custom. In Russia, which was beyond the pale of the manorial system, all the mines, even those of gold and silver, be- long to the landed proprietors. The crown claims the precious metals, in this right, in the crown lands. The ordinary exercise of manorial rights would be sufficient to include the right to mines. Evidence of this may still be seen in private manors in different parts of England. The Stannaries of Cornwall and Devonshire, the cus- tomary lead districts of Derbyshire and the Forest of Dean constituted parts of the royal domains; and all sub- sequent grants of the surface from the crown must be considered to have been made subject to its paramount right to the mines. It was, of course, competent for the crown to have disposed of any royal manor and its mines. If such a disposition took place before the establishment of the customs, the exclusive right to the mines might have passed as part of the grant. But after the mining customs had been fully admitted, all these dispositions by the crown must necessarily have been made subject to the exercise of those customs. ‘These considerations will account both for the exemption of lands in many adjoining manors from the operation of existing customs, and for the existence of those customs in lands no longer in the possession of the crown. However this may be, it is easy to suppose that these local customs were likely to have an origin not very remote from that of the superior claimants. In those distant times the efforts of the miner were feeble and unskilful. The harvest of the surface might be gathered at little cost, and with slender mechanical means. But the acquisition of the richer treasures below required an intelligence reserved SECT. I. | CUSTOMS IN DERBYSHIRE. 667 for more modern times, and it also demanded pecuniary resources which either failed or were diverted into channels more congenial to the spirit of the age. The art and mys- tery of mining depended, therefore, upon the individual exertions of operatives desirous of gaining the bare means of employment, and not upon those extensive enterprises which have been since demanded by a superior state of civilization. It became expedient, therefore, to afford every encouragement to the labours of the unassisted miner, who shares his profits with the owner; and to this source may safely be assigned all those customs under our present consideration. It is not to be wondered, under such circumstances, that these local codes should in their language and provisions sufficiently display the infancy of mining. The principal places in Derbyshire which are subject to peculiar customs, are the royal manors called the King’s Field, in the High Peak, comprising the liberties of Castle- ton, Bradwell, Great and Little Hucklow, Winster, Tad- dington, Monyash and Upper Haddon; and the King’s Field, in the wapentake of Wirksworth, in the Low Peak ; the private liberties of Ashford, Great and Little Long- stone, Monsall-dale, Wardlow, Hassop, Calver, Rowland, Hartington, Peak Forest, Stoney- Middleton, Eyam, Tides- well, Litton, Youlgreave and Crich. The customs in these various districts, as may be supposed, were variable. Those in the High and Low Peaks were formerly inquired into in pursuance of a writ issued and executed in the sixteenth year of Edward the First, and they were more accurately ascertained by inquisitions taken before the Mineral Courts, principally in the seventeenth century, the articles of which are, in general, contained in suffi- ciently intelligible language. The customs of some of the other manors have also been partially ascertained in a similar manner. But in some manors the customs are entirely oral and traditionary; and, although agreeing in their general spirit with those committed to writing, there 668 LOCAL CUSTOMS. [ CHAP. XVL. is some difficulty in ascertaining them correctly, and suffi- cient variation to cause doubt and perplexity. The manors of the High and Low Peak are not co- extensive with the hundreds of High and Low Peak, and in these hundreds there are several manors not subject to any peculiar customs (c). A much greater uniformity of the customs has now been procured by two recent Acts of Parliament. The first act, 14 & 15 Vict. c. 94, determines in one schedule the customs of that part of the hundred of High Peak, comprising the liberties of Castleton, Bradwell, Hucklow, Winster, Monyash, Taddington and Upper Haddon. The second act, 15 & 16 Vict. c. 163 (local), determines in like manner the customs within the soke and wapen- take of Wirksworth in the Low Peak, the private manors of Ashford, Stoney-Middleton and Eyam, Hartington, Litton, Peak Forest, Tideswell and Youlgreave in the High Peak, and of Crich in the Low Peak. Several manors are not affected by these acts, and are still sub- ject to the old customs. The legislative customs of the first act are given in the Appendix. Those of the other act are almost identical—and both are founded closely on the old customs. The customs of the High Peak Act have been further amended by several new articles pro- pounded and sanctioned under a special power in that act, and which are also inserted in the Appendix. There are also alterations in the practice of the courts. The other act does not contain any such new power of legisla- tion. It is declared by both acts, that the customs esta- blished by them are entirely to supersede all other customs relating to the same districts—and, as they now embrace almost the whole of the customary country, it may suffice to give a concise account of the customs thus amended. All the customs are confined to lead mines, but they are (c) See Beresford v. Bacon, Lutw. 418; Lynn Regis v. Taylor, 3 Lev. 160. SECT. I.] CUSTOMS IN DERBYSHIRE. 669 extended to all the liege people of the nation, who may enter and search for lead ore in all lands and places within the liberties. Churches, burial grounds, dwelling-houses, highways, orchards and gardens are excepted (d). The first discoverer of a vein is entitled to have assigned to him two meers of ground in it. A meer is a space of ground in a rake vein varying from twenty-seven yards to thirty-two yards in length, and in flat or pipe works, about fourteen square yards. The lord is then entitled to the next meer, which is usually resold to the miner at a valua- tion, and afterwards the finder, or, if he declines, any other person, is entitled to other meers as they are taken from the lord, and freed. But the lord is only entitled to one meer for the whole vein. Freeing consists in delivering the first dish of ore to the lord. This ceremony is equi- valent to a livery of seisin; for without it, there can be no title to the mine; and if thus freed and kept in lawful possession, the mine is declared to be an estate of inherit- ance, liable to dower, and capable of absolute disposi- tion (e). Every adverse claimant must assert his title by action within six months, when the mine is in work. The quarter cord is a space of ground extending along the sides of the vein, and set out for enabling the miner to place and wash the ore and heap the refuse. In the Low Peak, it was a quarter of a meer in breadth, and it has been often disputed from what point this quarter meer should be measured—from the middle of the vein, or from the nearest sides of the vein. The latter mode was ad- mitted to be correct in the case of Sir Henry Harpur, in a trial at Derby, on the 22nd of March, 1753. By the new acts, the barmaster and two of the grand jury are to lay out a sufficient space. No compensation is payable for the use of this space. Rights of way are also to be (d) See Gilbert ». Tomison, 4D. Pearce, Peake’s Add. Ca. 242, where & R. 222; supra, Chap. XI. this was denied with respect to the (e) See Doe d. Thompson v. Forest of Dean. 670 LOCAL CUSTOMS. [CHAP. XVI. provided for the miners, with the same exemption from compensation. But it is not only necessary to free a meer of ground: it is also requisite that the miner should keep it in lawful possession. In the manors not comprised in the new acts, daily acts of ownership will not alone suffice to effect this. He may retain lawful possession for a few days by simple crosses and holes made in the ground; but the acquisition of a more permanent title must be effected by the erection of stowses. These stowses consisted formerly of wooden apparatus, and were actually employed in drawing the ore raised from the mines. In the lapse of time the bar- masters suffered the erection of “ sham stowses,” consisting of several diminutive pieces of wood united together with wood, fixed in the ground, and suspended “in all men’s sight.” The custom required the mine to be regularly worked, but it was much infringed by ‘the use of these fictitious stowses. By the erection and maintenance of these trifling articles, the right to the meer must be pre- served, even if the working stowses be superseded by the erection of powerful engines. Ifthese stowses are destroyed or not kept in good repair, or not replaced by others, the meer of ground will be forfeited, unless they are removed by accident or some unusual and indirect means, in which case they are directed by the barmaster to be made good on pain of forfeiture. It was always necessary that the mine should continue to be fairly worked. If capable of being wrought, and it was unwrought for a few weeks together, the barmaster was required to “ nick the spindle” once a week for three weeks, and the mine, if unwrought within that period, became forfeited a few days after the last nick, and might be disposed of to others. The spindle is a small piece of wood belonging to the stowses, fixed in the ground to mark the boundary of the meer; and by nicking is meant notching. This ceremony, therefore, is equivalent to an entry after breach of condition, by which the lord or lessor is restored to his former estate; and it SECT. I. ] CUSTOMS IN DERBYSHIRE. 671 was often resorted to for effectually determining former claims. But this custom was, in general, much disre- garded. The recent statutes provide means of forfeiture and of assignment to others, in case of mines remaining unworked, without any such process. In the manors comprised in these acts all stowses, real or fictitious, have been abandoned. The duties payable in respect of lead ore raised in the manors of High and Low Peak belong to the crown in right of the Duchy of Lancaster; but they are usually farmed out to influential owners in the vicinity. The duties in the other customary manors belong, of course, to the lords of the manor or their grantees. It was formerly contended that the inferior kind of ores called smitham and forested ore were not liable to duty at all. They are expressly stated to be exempt from all duty but cope in the articles of the Low Peak, and partially so in other places; but it has been decided otherwise by two suc- cessive actions at law—the first in 1750, against the miners of the High Peak, and the other in 1773, against the miners of the Low Peak. The amount of duty is usually one-thirteenth part of the ore raised. The lord is also entitled to sixpence or four- pence for every load of ore carried off from the ground. This is called cope. The load is in nine dishes, and the contents of a dish vary from fourteen to sixteen pints. The celebrated brazen standard dish of Wirksworth, in the Low Peak, contains almost precisely fourteen pints. The High Peak Act specifies fifteen pints. Provisions are made for keeping a sufficient number of measures, and for preventing removal of ores before measurement, or before the mine is “ freed” (f). The payment of the duty is stated by some of the cus- toms to entitle the miners to timber from the king’s (f) See Att.-Gen. v. Wall, 4 Brown, P. C. 665, as to exemption of smytham, or dust ore. 672 LOCAL CUSTOMS. [CHAP. XVI. forests. But this practice has been discontinued, probably from the absence of timber or its distance from the mining operations. The Barmaster [ Berg-master | is a chief officer formerly appointed by the miners and merchants, but now by the lords or farmers of the duties, who has important functions to perform towards all those interested in the mines—some- times with the concurrence of two grand jurymen. He is required to ascertain and lay out the meers on every occa- sion—to mark our ways to the highway—and water for washing ore—to visit and examine the meers regularly for the purpose of discovering any causes of forfeiture—to measure out the ore actually raised—to secure the render of lot and cope duties—to enter into all mines—to arrange for the settlement of disputes in title—to execute the war- rants of the steward, and deliver possession of all mines— to sell the lord’s meers—to hold courts, summon juries and present offences—and generally to observe and enforce the customs of the manor. Any interest in a mine is transferred by entry in the barmaster’s book, and, in disputed titles, every document entered in his book is entitled to priority over later entries. All titles date from his gift, and not from any precedence in actual working. There are also special regulations for the use of ways and water, for the working of cross veins, and of two veins approaching each other, parted with a rither or rider. Actions of title or trespass, or of debt for mining articles, or for work or labour, may be brought in the small Barmote Court. Only one action is now allowed to be brought for one cause of plaint, except under orders for new trial by the steward. Any partner refusing to work or to contribute his proportion of expenses for twenty-one days, forfeits his share, which can be summarily recovered in the small Barmote Court. Views by the grand jury may be required. When any mine is freed from water by the operations of other miners, they may claim a portion SECT. I. ] CUSTOMS IN DERBYSHIRE. 673 of the ores afterwards raised from the mine so relieved, to be settled by the barmaster and grand jury. The titles of two or more contiguous mines belonging to the same per- sons may be consolidated with the consent of the bar- master and grand jury, and the mines worked as one mine. In disputed workings, on a majority of the grand jury find- ing sufficient ground for the dispute, the steward may require security for the value of all the disputed ore to be abstracted, or may direct the ore to be retained till further operations have led to a satisfactory opinion. Both statutes provide for the appointment of stewards and barmasters, and contain a complete reform of the practice and process of the Courts. The lord or lessee under the crown of the king’s field cannot hold the office of barmaster (9). The great Barmote Courts of the manors are generally held twice in every year, in April and October. The small Barmote Courts, in which all disputes and differences arising in the prosecution of mines are decided, are held as occasion may require. The jurisdiction is concurrent with that of the ordinary Courts, and is subject to writ of certiorari, before or after trial. At the discretion of the superior Courts, a grand jury, composed of twelve persons experienced in practical mining, and intended to act as occasion may require, are appointed at the great Barmote Courts. An act was formerly passed for regulating the proceed- ings in the Courts Baron of the hundred of High Peak and manor of Castleton (4), and extended by a later act (é), by which all persons residing within the jurisdiction are to be sued there, when the debt and damages are under 5/. It is competent for the Judge of any Court to find the re- sidence; and he is bound to nonsuit the plaintiff without (g) Arkwright v. Cantrell, 7 Ad. (hk) 38 Geo. 2, c. 31, & E. 565, (i) 45 Geo. 3, c. 61. B. x xX 674 LOCAL CUSTOMS. [CHAP. XVI. reference to the pleadings or the issue raised, unless the freehold or title to land be in question (A). The duties arising in mineral districts, subject to peculiar customs, and payable in kind, are liable to the poor rate. All money payments, as cope, are exempt (/). Tithe ore is also rateable to the poor. It has been decided that the customs of Derbyshire will not authorize the erection of fire engines for drawing water from the mines against the consent of the proprietor of the land. A proprietor brought an action for the erection of more than the customary hovels and sheds, and for the erection of fire engines. It was held, that a miner had no right to erect more than the customary sheds and hovels, and that the engines being unknown till within a recent period, could not be erected without the consent of the proprietor, and that the workmen were not justified by the custom in living upon the land(m). Such a decision could not now be supported with respect to the engines (7). The new customs extend expressly to all mining purposes. All other minerals, except lead, belong to the proprietors of the land, or, in waste lands, to the lord of the manor. When a mine is abandoned, all the produce left by the ad- venturers belongs to the same persons (0). In general, tithes are not payable in respect of minerals and things which are not of the increase, but of the sub- stance of the earth(p). But by particular custom any mineral substances may be subject to the payment of tithes (q). In Derbyshire tithes are thus payable for lead (k) Hildyard v. Webster, 1 Dowl. (0) Lee v. Shore, Derby Summer & L. 950; 1381. 3., C. P. 94 Assizes, 1822. (2) See Chap. XII. (p) 2 Inst.651; Amiles v. Cham- (m) Harpur v.Governor andCom- bers, 1 Mod. 85; 1 E. & Y. 480; pany for Smelting Lead, Derby As- —Stoutfil’s case, 2 Mod. 77; 1 E. & sizes, 22nd March, 1753, Y. 509; 6 Bac. Abr. 712. (n) See Chap. V. (q) 2 Inst. 664. SECT. I. | CUSTOMS IN DERBYSHIRE. 675 ore. The pretence for claiming tithe is said to have originated in the once prevalent notion that metallic ores are in a constant state of growth and increase in the veins. In the High Peak, a full tenth of lead ore is stated to be due, but one-nineteenth is usually received. In Wirks- worth and other places a fortieth only is paid, and in other places the tithe is commuted for a small modus or money payment. The tithe of mines may be either in the nature of a predial tithe, by the dish or drill, in its natural state, without any deduction for expenses, or as a personal tithe, with an allowance for labour and other incidental charges (r). In Derbyshire, it is generally payable in the former manner. A lime kiln and salt works may be liable to customary tithe (s). By the statute for the commutation of tithes, special pro- vision is required to be inserted in the parochial agreement, and specially approved of by the commissioners, for the commutation of any mineral tithes (¢). Such are the mineral customs of Derbyshire, many of which appear to have fallen into practical desuetude, and all of which would seem to require, for the interests of all parties, a careful revision. It may easily be supposed that the operation of the above customs must often have materially interfered with the improvements of the agriculturist, and with the enjoy- ment of the private proprietor. If the customs had been confined to a mountainous district, destined to remain in (r) Brown v. Vermuden, 1 Ch. Wood, 302; Buxton v. Hutchinson, Ca. 272, 282; 1 E.& ¥.509; Tully 2 Vern. 46. v. Halsall, 1 Wood, 74; Pindar v. (s) Thomas ». Perry, 1 Roll. Abr. Jackson, 1 Wood, 315; 1E.& Y. 642. 583; Basire v. Wharton, 1 Wood, (4) 6 & 7 Will. 4, c. 71, s. 276. 83; Lord Lonsdale v. Bathurst, 2 See also 2 & 8 Vict. c. 62, s. 9. xx 2 676 LOCAL CUSTOMS. [oHar. xv a perpetual state of nature, their operation would have effected little injury to the interests of those acquiring rights in the surface. But it was very different when they were to be exercised in the improved inclosure or the ancient meadow. The permission of fictitious stowses, accompanied with occasional and colourable operations, enabled the proprietors of the surface to protect them- selves in some degree from the attempts of the adventurer. By the custom no actual estate could be obtained without the delivery to the lord of a dish of ore obtained from the meer. But this preliminary was also dispensed with, or at any rate the barmaster was not in the habit of making very anxious inquiries about the source from which the lord’s dish was derived. Proprietors of lands, therefore, were thus permitted to acquire themselves the right to unoccu- pied mines in their lands without contracting the necessity for effectually working them. But this practice could not be relied on, after the analogous case of Rogers v. Brenton, in Cornwall (u). The new acts also deprive the landowners of these usual means of protection. In a country much worked, mining operations must often be conducted upon a large and extensive scale, and under no apprehensions of undue interruption. These customs were never adapted for such enlarged designs. Costly and uncertain projects may be prevented, defeated, or materially injured by the prior claims of small specu- lators, who may have acquired and maintained their rights by questionable means, and who are unwilling or unable either to carry on vigorous operations themselves, and yet thus prevent others from exploring the resources of the country, and pursuing the true course of their discoveries. The arrangements with respect to the commission of in- juries and payment of damages seem also to be unsatisfac- tory. Sucha state of things calls for a remedy. If it is not applied, the spirit of mining within particular districts (u) See next Section, SECT. Il.] IN CORNWALL AND DEVONSIIRE. 677 must either become extinct, or it will be mostly expended in trivial, isolated, and profitless operations. Such a sub- ject can only be effectually treated by the interference of the legislature. The late acts can hardly be considered to have effected any adequate amendment of this kind. Section IT. IN CORNWALL AND DEVONSHIRE. THE peculiar customs of the above counties apply ex- clusively to mines of ¢in, in the same manner as those of Derbyshire are only applicable to lead. The tin mines of Cornwall and Devon must be ranked amongst the most ancient mines in Europe. Their exist- ence and prosecution seem coeval with the first records of civilization. Like all mining customs, the origin of those of the Stan- naries is involved in great obscurity. It would seem, how- ever, that the tin of these counties has, in all earlier ages, been claimed as part of the royaldomain. It is quite clear from the terms of the charters of Edward the First, that it was then considered to belong exclusively to the Crown. By those charters, the King granted liberty to the tinners of Cornwall and Devon to dig tin everywhere in the lands, moors and wastes of the Crown, and of all other persons whomsoever in the two counties (2). It was contended, in a case cited below, that the custom should be regarded as the local law of a provincial realm, possibly prevailing before Cornwall or Devon were parts of England, rather than a common custom within a certain district. But the argument was held to fail both in his- torical certainty and in legal authority (y). Such a claim (z) See Laws of the Stannaries, (y) Rogers v. Brenton, infra. See p. 54; 12 Cooke, 11; Rowe v. Bren- case of Tannistry, Davis, 28; Vin. ton, 8 Man. & R.497, Appendix; Abr. Cust. H. fol. 10. Concanen, 205. 678 LOCAL CUSTOMS. [ CHAP. XVI. would amount to imperium in imperio. It may be thought probable that these mining rights are descended from a very remote antiquity, even from the times of Tyre and Sidon, surviving all changes of conquest, language and race, and recognized by successive conquerors as provin- cial laws. Such, indeed, was the actual practice of the Romans, who confirmed the rights of previous mineral owners, and claimed only the rights of the government that was overthrown (z). But all claims of this kind, whatever may be their origin, can only exist as customs incorporated into a new social system, and not as a ruin of the ancient fabric. The law of England allows no supremacy of this kind. It tolerates a lex loci as a rea- sonable usage, and it only admits the written Pandects of Justinian and the decretals of Gregory in the same humble garb of custom. The privileges thus conferred upon the tinners of the western counties were afterwards regulated by local par- liaments or convocations. We may first notice those of Cornwall. The Stannary Parliaments of Cornwall are summoned and presided over by the Lord Warden or Vice-Warden, who are officers of the Duchy. These assemblies consist of twenty-four representatives returned in equal numbers from each of the Stannaries of Foymore, Blackmore, Tywarnhaile, and that of Penwith and Kirrier, and who are generally some of the principal gentlemen of the county. Sixteen of these Stannators form a binding ma- jority (a). They are returned by the mayors of the four Stannary towns, and they select, during their sittings, as many assistants from those practically concerned in tin works as they think proper, who form a lower house of convocation (4). The customs of this county have been ascertained at various times by convocations thus held (s) Livy, 45, 29; Pliny, 33, 31; (a) Convoc. 11 Cha. 1, 1. Diod. 5, 38; Tacit. An. 11, 20; (b) Carew, by Tonkin, 60; Dode- Strabo, 13, 3. ridge’s Cornwall, 94, SECT. .] IN CORNWALL AND DEVONSHIRE. 679 successively in the 22nd James 1, the 11th Charles 1, the 12th Charles 1, the 2nd James 2, the 2nd Anne, and the 26th George 2. The right of working tin mines was originally conferred upon all free tinners upon the render of a certain propor- tion of the minerals raised to the owner or lord of the soil. This proportion is called the toll tin, and is usually one-fifteenth of the produce. By particular custom it amounts to one-tenth. But it could not be supposed that adventurers in search of tin mines should continue to exercise their rights over such valuable property in the same manner as the occu- piers of a common quarry, or as if they were only in- terested in the common minerals of a public waste. The attainment of all metallic ores, even in those remote time, required some expenditure and labour, and was liable to fluctuations of success and misfortune. It thus became necessary to prevent other adventurers from reaping the profits discovered by the skill and labour of the successful miner. From this source, therefore, may be traced the origin of tin bounds, by which, as in Derbyshire, and in the Forest of Dean, the adventurer acquired an exclusive and indefeasible title to the property proposed to be ex- plored, and was, in return, restricted in his operations within defined limits. The manner of acquiring tin bounds has been often de- fined by the local parliaments. Any tinner is allowed to bound any unappropriated waste lands, or any several or inclosed lands which have been formerly waste land, and subject to the custom, by delivery of toll tin to the lord of the soil. In all lands exempt from the custom, the tin must be considered to have been appropriated to the owners of the soil(c). The assessionable or conventionary manors of the Duchy of Cornwall are equally subject to the custom (d). In lands not subject to the custom of (c) Conv. 11 Cha. 1, 81; 26 Geo. (d) See 7 & 8 Vict. c. 105, ss. 32, 2, 8. 84, 680 LOCAL CUSTOMS. [cHaAP. XVI. bounding, the right to tin mines is regulated by the general law of the realm. All tin bounds generally consist of about an acre of land, and are required to have four corners, and to be defined by twenty-four turfs or stones, six to each corner. There may also be a side bound, generally of a triangular form (e). The shape of a bound is thus delineated (f ):— Every bounder is required, however, to proclaim at the next Stannary Court the date of his possession, the names of his partners, and of the person who cut the bound, and the limits. If this is not complied with, the boundary is void. The same proclamation must be made in the two following Courts, and posted up in the Court. Any per- son disputing the title of the bounder must forthwith pro- ceed to resist it by an action of trespass. Notice, in writing, of the cutting was originally required to be given to the owner of the soil, or his agents, within one year (4), and toll tin to be delivered within three years, or the bounds to be effectually worked (h). But it was afterwards required that all future bounds should be void unless three months’ notice in writing, previous to the cutting, be given to the owner of the soil, and that if the latter should think fit to cut the intended bounds to his own use, he may, within three months after notice, proceed to do so ; but in case of neglect, the bounder, upon proof of notice, (e) Conv. 2 Jac. 2, 2. 2 Jac. 2,1. (f) Ibid. (hk) 16 Geo, 2, 8. (g) 22 Jac. 1, 17; 11 Cha. 1, 15; SECT. I.] | IN CORNWALL AND DEVONSHIRE. 681 may, after three months, cut the bounds and establish his title in the usual way (i). This provision, of course, effec- tually prevented the acquisition of many new bounds (A). If the claim of the bounder is not successfully resisted, he then becomes, after the competent period, entitled to his writ of possession. The right of the bounder is then absolute, and it may be exercised without any other com- pensation to the landowner than the tolltin. The peculiar property thus acquired constitutes chattels real, and de- volves upon the personal representative of the owner for the time being, subject to the payment of debts and lega- cies, and to absolute or partial disposition by deed or will (2). But if the bounds be unworked for twelve months, any other tinner may, by notice to the owners, and declaration on oath, of the limits, owners, time and manner of. notice, within two months afterwards, be permitted to work the bounds, on payment of the usual farm, and upon giving a bond for the effectual and proper working of the bounds, on breach of which the owner may enter again (m), All bounds also require to be annually renewed (n). This ceremony is performed on specified saint days, and consists in cutting a turf from each corner, and placing it on the adjacent hillocks; it is also declared in whose names the bounds are renewed. But if the day of renew- ing is suffered to pass, the bounds may be afterwards effectually renewed, if no tinner has previously made a new title to them (0). It is also provided, that if a keeper of any bounds for another person or a partner shall suffer bounds to be unrenewed, without reasonable warning to the other owners, any new claim or cutting shall enure for the benefit of the old owners, not privy to any fraud, in (i) 26 Geo. 2, 4. (m) 11 Cha. 1, 81, amended, 26 (x) Pryce’s Min. Cornub. Chap. Geo. 2, 8. III. (n) Ibid. 2. (1) 2 Jac. 2,4. (0) 22 Jac. 1, 18. 682 LOCAL CUSTOMIS. [CHAP. XVI. exclusion of the offending partner, Any keeper or other person guilty of fraud in cutting ew. bounds, in such cases, or any keeper being unwilling to show the limits of the bounds to the owners, or defacing the bounds, is liable to a penalty of 507.