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I^ulms  €a^t^. 


AKRANGtEr>,    AJflNOTATED,  AND  EDITED 


BY 


ROBERT    9AMPBELL,  M.A., 

OF  UVOOUX'B    TSIV,    BiWXtRlSTKn-AT-1JLW,   ADYOCATB   OF    THB    SCOTCH    BAB, 
AXI>  rJLTB    S-Bl^EX»W'    OF  TBXNITT  HALL,   CAMBBIDOB. 


ASSISTEI>    BY    OTHER  MEMBERS  OF  THE  BAR. 

wits:  amjerican  notes 

BY 

IRVING  BROWNE, 

VOBMBStL.T    XX>ITOB  OF  THB  AMERICAN  REPOBT8  AlTD 
THK  AISABT  LAW  JOUBNAL. 


Vol.  XVII. 

MANOBIAL  BIGHT— MISTAKE 


LONDON: 

STEVENS    AND    SONS,  LIMITED. 

BOSTON,  U.8.A.:  THE  BOSTON  BOOK  CO. 

1^  WviMita  ant  iSooiuBUra. 

1899. 


I%s  ui6  mcuie  in  this  work  of  the  Law  Reports  pubUihed  2y 
the  Council  of  Law  Reporting  i$  hy  the  permiesion  of  the 
Council  kindly  given  for  this  purpose. 


I 


326977 


Copyright,  1898, 
Bt  Stevens  and  Sons,  Limited. 


Br 


^Oi 


'^ 


Srt,  Plated,  ahd  Pbihtbd 
y^iutov  Axn>  Sok,  Cam  bridge,  U.  S.  A., 

AT  THE  UmYBBSITT  PbB8S. 


TABLE     OP   CONTENTS. 
VOLUME  xvn. 


FAOB 

MANORIAL  BRIGHT 1-10 

Weeiem  v.   Badley    (^Copyhold.  ^  Customary  HenoL --^  Right  of 
Lard  to  taJbe  Heriot  outside  Manor) 1 

MAKEIAG^ 10-176 

Batrymple  i?.  I>alryxiiple  >   (Marriage,  —  Law  of  Scotland.  —  }       ^q 
Beg.  V.  MiUia  >      Common  Law,  — Lex  Loci  actus)  S 

MASTER   AliTD    SEKVAIfTT 177-368 

SeCTIOK  I. CONTIULCT    FOB   SkRVICK. 

No.  1.   Brao^rdle  r-  Heald  (Statute  of  Frauds.  —  Contract  for 

service^  —  Not  to  be  performed  within  a  year)      ,    .     .     177 
No.  2.    Winstoue  v.  Linn  y  (Independent  stiptdations. — \ 

No.  Z.  Kearney  w.  Whitehaven  >•     Apprenticeship,  —  Con-    y     186 
CJoUiery  Co.  J     tract  for  service  in  mine)    ) 

SsonoNlI.  —  Liability  op  Master  fob  In  juries  to  Sebyant. 

(Volenti  non  ft  injuria,'^ 
No.  4.  Baddeley  v.  Earl  Granville)  —  Breach  of  statutory} 
No.  5.   Yarmouth  r.  France  )     duty, — Employer^      l 

Liability  Act)  ' 

Sbction  m.  —  Rights  aftbb  Detebmination  of  Sbbvicb. 
No.  6.    Carrol  r.Biid  >  (^«^   <^r>d   ServarU.- Char^ 

No.  7.   GMdener  „.  Sl.de  ;     «*«•.- Pn^fe^^    Co«««»^f     246 

cation)  ^ 

SXCTION  IV.  —  RsaPONDSAT  SUPSIUOM* 

No.  8.   Mitchell  v.   CrsMwellery  (Liability  of  Master  for  act  \ 
No.  9.   Limpus  v.  London  Gen-  >     of  servant.  —  Course   ofi     252 
eral  Omnibos  Co.       )      employment)  S 

Skction  V.  —  Relation  as  beoabds  Thibd  Pabtibs. 

Lnmleyr.  Gye  \U^^M^€  by  third  party.  ^' 
Bowen  v.  HaU  I  ^^a«2/^^  if  directed  to  induce 
Allen  V  Flood     I     ^^^*    ^/  contract. --Oiherunse       ^^ 

lawful) 
Manvell  v.  Thomson  >  (Action  for  seduction.  ^Loss  i 
Eager  v.  Grimwood  J      of  service)  \     ^^^ 


No. 

10. 

No. 

11. 

No. 

12. 

No. 

18 

No. 

14 

lY  TABLE  OF  CONTENTS* 

FAGB 

MEBGEB 864-392 

No.  1.  Kendall  v.  Hamilton  (Merger  of  remedy  an  contract  m 

judgment :  See  1  R.  C.  175) 864 

No.  2.   Boaler  o.  Mayor  (Simple  contract  and  specialty)     .     .     .    366 
No.  3.  Jones  o.  Davies  (Merger  of  estates,  — Estates  muti  he  held 

in  same  right) 375 

No.  4.   Forbes  o.  MofEatt        7  (Merger  of  charges  depends  on  } 
Moffatt  V.  Hammond  S     intention)  S 

MINES  AND  MINERALS 898-884 

See,  particularly  as  to  questions  relating  to  water,  No.  5  of 
«*  Action  "  (Fletcher  y.  Rylands)  and  notes,  1  R.  C.  285 
et  seq.  See  idso  Nos.  9  &  19  of  *<  Limitation  of  Actions  ** 
16  R.  C.  215  et  seg.j  and  328  et  seq. 

Section  I.  ~  Mineral  Property. 

No.  1.  Case  of  Mines 

Reg.  0.  Earl  of  Northum- 
berland 
No.  2.   Humphries  v.  Brogden 
No.  3.   Bell  ».  Wilson  >  (GVan/  of  minerals.  —  Mines  distin^} 
No.  4.    Hezt  V.  Gill     >      guishedjrom  quarries)  > 

No.  5.   Bowser  v,  Maclean  >  (Mineral  rights.  —  Manor,  }     ^go 

No.  6.   Eardley  v.  Earl  Granville  >     —  Copyholds)  S 

No.  7.   Townley   ».    Gibson  (Inelosure  Act. — Reservation  of 

Seigniories.  —  No  reservation  of  Mines) 476 


(Mines.^  Gold  and  Sil^'i 
wer.—  Base  Metals.  — Y     898 
Support  of  surface) 


SU.'k 


(Exception  of  mines  and" 
minerals.  —  Railways 
clauses.  —  ConsoHda- 
tion  Act,  1845) 


485 


No.  8.  Lord  Provost  &  Magistrates^  i 
of  Glasgow  V.  Farie 

No.  9.  Midland  Ry.  Co.  v.  Robin- 
son 

No.  10.   Bishop  of  Winchester  V.  WCu«/omary    and  copyhold  \ 

Knight  >■  tenements.  —  Lords*  rights.  >     538 

No.  11.   Bourne  v.  Taylor  )  —  Minerals.  ) 

No.  12.  Groodtitle  d.  Chester  v.  Alker  &  Elmes)  Mines  under  pub- 
lic highway.  —  Primfl  facie  in  owner  of  the  land)    .     .     549 

No.  13.    Attorney-General   v.   Chambers    (Foreshore.  —  Crown 

rights.  —  Line  of  medium  high  tides) 555 

Section  II.  —  Possession  and  Powers. 

No.  14.  Marquis  of  Salisbury  v.  Gladstone  (Copyhold.  —  Custom 

to  dig  for  clay,  frc.) 579 

(Mines.  —  Title  by  reservation.^ 
No.  15.  Seaman  v.  Yawdrey  ?  —  No  presumption  by  mere 
No.  16.   Thew  ».  Wingate      >      non-wer.  —  But  there  is  by 

adverse  possession) 
No.  17.  Durham  &  Sunderland  Ry.  Co.  v.  Walker  {Reserved 
powers  in  grant  reserving  mines.  —  Limited  Construc- 
tion)     599 


■    585 


TA.BX-.K     OF    CONTENTS.  V 

inSES  A15B   MIiirEIR.AJL,s    (camtinued). 

Section ni.—  PowBsico    o»-    Raii.way  akd  Canal  Companies,     pagb 
lilo.18.   Honid.a.y     v.     :M:&yor,    &c.,    of  Borough  of  Wakefield 

yMxn^s^ Txll^   by  reservation. — Non-user  no  pre- 

sumptu^n    ryf  last  grant) 621 

Section  IV.  —  Rioh.ts    oib*    Sxj^port. 

No.  19.   BowbothflLTKi    ^y^^^^^.  (Mines  severed  from  surface.^ 

No.  20.  Love  V.Bell  )     -Primft   facie   right  of>     647 


support) 
{Land  purchased   under  \ 
No.  21.   Caledonisuo.  Railway  Co.  v,\    powers  of  Acts  relating  I 

Sprot 
No.  22.    Great     ^W^estem     Railway 
Ck>.  t7.  Bexinett 


685 


723 


732 


to  railways,  —  No  right 
of  support  from  under" 
lying  minerals  not  puT" 

chased) 
Section  V.  —  LiIiaxxki>  Oiktxkrs. 

No.  23.    Saunders's   Case  {Lease  of  land  (urithout  men-' 

Saunders  v.  MarwoodC     ^   ^/  mines) ^includes 

No.  24.   Clegg  f>.  Rowland        )      *^P^'    ***'    "^^    unopened 

mines) 
No.  25.  mias  v.  Snowden  Slate  ^  (Tenant  for  life" 

Quarries  Co.  I   impeachable  for 

No.  26.    In  re  Kemeys-Tynte  j   waste.  —  Powers 

Kemeya-Tynte  ».  Kemeys-Tynte  J  as  to  mines) 

Section  VI. — Kar.KS  ov  Construction,  &c. 

No.  27.    Davis   »-    Shepherd  (Agreement  for  lease  of  mines,  — 

QuantUy. —  ''Thereabouts") 765 

No.  28.  liowis    v.    Fothergill   (Lease  of  mines,  —  Working  by 

instroke.  —  Primft  facie  lawful) 766 

No.  29.   Doe  d.  Hanley  v.  Wood],,,^.  ^ ,        j..  .  ,.     . 

No.  30.   Duke  of  Sutherland..    m-^f^'-L^c^^^  775 

Heathcote  j     ^''^'<^  fi'<^  ffrant)  i 

No.  31.    Wake    v.    Hall    (Mining    customs,  —  High    Peak,  — 

Fixtures) 797 

SxcTioN  VII.  —  Special  Rules  as  to  Remedies. 

No.  32.    Haywood  v.  Cope  (Minerals.  —  Agreement  for  Lease,  — 

Specific  performance.  —  Unprofitableness  no  excuse)    ,     816 
No.  33.   Wheatley  v.  Westminster  Brymbo  Coal  Co.  (Mining 
lease.  — Court  will  not   compel   working  by   specific 

directions) g27 

No.  34.    Jefferys  v.  Smith  (Mines,  —  Tenants  in  common  —  quasi- 

partnership,  —  Receiver  and  manager) 866 

No.  35.    Martin  v,  Porterl  (Mines,  —  Trespass  by  working  into\ 

No.  5^0.    Jegon  ».  Vivian  V    adjoining  property.  —  Measure  of}     840 

No.  37.   Job  V,  Potion     j     damage.)  J 

MISTAKE 885 

See  Payment  by  Mistake,  and  Rectification,  post. 


TABUE    OB^    ElilGI^SH  CASES. 

VOIi.  XYII. 


NoTB The  RuiOKO  Cabxb  are  shown  by  diBtinctiTe  type. 


Actonv.  Blondell 416 

Adair©.  Sbafto  ..'.*.''     598 
iajmst.Angell     I      I      I      ^      i!     389 

Albui  V.  BTovaxsall 610 

ABm  V,  Gomme      .      .      .'.'..    612 
AUoiv.Flooa     ...       J       285,352 

AmoTo.YeaToii .      • 210 

Andenon ».  Pienett 389 

Afidie&s  «.  Andreas     .....    125 
A&g\ev.Cl[dcago,  &c.  B,y.  Co..     .    299 

Anoii. 163 

190,191 

560 

AnseUv.BakeT 369 

ijitm  V.  Do\A)s 816 

kc\c«ltJ.™»    ....  580,582,611 
Ashmeadt.  "Ranger     .      .      .       538,541 

Asbton ».  Stock 874 

Aspden  «.  Scddon  .     520,  659,  669,  681 
Astley  V,  Milles     ....      388,  389 

Atkinr.  Acton 210 

Alt-Gen.  v.  Bnrridge      .     .      560,  564 

V.  Cbamberlaine    .     .     .     565 

Att43en.  0.  Chambers     .     555,  565 
Att.-Gen.  v.  Ewelme  Hospital  .    .      10 

».  Hanmer 578 

©.  M&ttbias 580 

•  V,  Parmeter     .     .      560,  564 

».  Siddon 273 

V.  Tomline  •    .     .      447,  578 

V,  Welsh  Granite  Co.  450, 474 

Att.-Gen.   of  British  Columbia  v. 

Att.-Gen.  of  Canada    ....    420 
Att.-Gen.  for  Isle  of  Man  v,  Myl- 

cieesh 447,  585 

to  Prince  of  Wales  v.  St. 

Anbyn 565 

Anstin'v.  Bennet 3 

Ayray  v.  Bellingham 542 

Backhouse  v.  Bonomi      ....    711 
Baddeley  v.  XSarl  GranTille      .    212 


Badger  r.  Ford 580,611 

Bagot's  Settlement  In  re  Bagot  v. 

Kittoe 754 

Baffot  0.  Bagot 744 

Bafley  v,  Stephens 789 

Bald^s  Trustees  v.  Earl  of  Mar.  .  692 
Ballacorkish  Silver  Mining  Co.  v. 

Harrison  .  .  .  463,467,474,548 
Banbury  Peerage  Case    ....     145 

Bamfather  ».  Jordan 376 

Bartonshill  Coal  Co.  v.  Reid    .    .    237 

Bate  r.  Hill 362 

Bateson  v.  Green    .    .    .  413,  580,  583 

Bayley,  JEr/^flrr/tf 209 

Bay  ley  v.  Manchester,  Sheffield  ft 

Linconshire  By.  Co 278 

Bays  17.  Bird 735 

Beamish  v.  Beamish  ....  30, 161 
Beauchamp  (Earl)  v.  Winn  .  .  437 
Beaufort  (Duke  oQ  v.  Patrick  .    .    463 

Beer  v.  Ward 109, 156 

Beestou  v.  Collyer  ....      182, 183 

Bell  V.  Bankes 370 

r.  Love 450 

BeU  9.  'V^ilson  422,  434,  n.,  435, 441, 
443,  505,  518,  530 
Benfieldside  Local  Board  v.  Consett 

Iron  Co 554,  681 

Bennett  v.  Deacon 248 

V.    Great   Western    Ry. 

Co 489,500 

Benton  v,  Pratt 299 

Berry  r.  Holden 660 

Betts  17.  De  Vitre 272 

Bewick  t;.  Whitfield 428 

Bickett  17.  Morris 554 

Bidder  v.  North  Staffordshire  Ry. 

Co 620 

Bird  V,  Higginson 610 

©.Randall 353 

Birmingham  Canal  Co.  t;.  Lloyd  .  833 
Bixby  t;.  Dunlap 299 


VIU 


TABLE  OF  ENGLISH  GASES. 


Black  V.  Christcharch  Finance  Co.    274 
Blackett  v.  Bradley     .     .    .    436, 659 

Blackham  9.  Pugh 249 

Blake  17.  Shaw 227 

Blamires  r.  Lancashire  &  Yorkshire 

Ry.  Co 216 

Blessley  v.  Sloman 608 

Blandell  v.  Catterall  .     .  559,  561,  563 

Boaler  v.  BCayor 367 

Bonomi  v.  Backhouse     .  653,  656,  723 
Boston  Deep  Sea  Co.  v.  Anseil  ^09,  210 

Booltbee  v,  Stnbbs 370 

Bovme  v.  Taylor  .     .     .      535,  580 

Bowen  o.  HaU        285,  295,  300,  321, 

324,  330,  337,  344,  351,  353,  354, 

355,  356 
Bowser  v.  Maolean      453,  462,  466, 

469,  474 
BoydeU  v.  Dnimmond      178,  179, 180, 

181,  182 
Bmoegirdle  v.  Heald ....  177 
Bradford  Corporation  v.  Pickles  .  334 
Bristol  Poor  (GoTemors)  v.  Wait  608 
Britain  v.  Rossiter  .  .  .  181, 182 
Broadbent  v.  Wilks  547,  580,  581,  583 
Bromage  o.  Prosser  .  .  296,  312,  335 
Brown  v.  Chadwick  .    .   425,  426,  435 

V,  Dibbs 873 

Browne  v.  McClinloch    ....    735 

Bnicker  v.  Fromont 264 

Brunton  r.  Hall 612 

Buocleuch  (Duke  oO  v.  Wakefield   436, 
437,  444,  483,  659,  662,  665,  667, 

668,  679 
Buchanan  v.  Andrew  .  .521,  680, 684 
Buckinghamshire  (Earl  of)  v,  Uo- 

bart 389 

Bullen  V.  Denning 609 

BuUey  w.  Bullejr     ....      436,735 

Buntmg  V.  Lepingwell    .     20,  75, 102, 

136, 145, 148 

Bunting's  Case       20,  75,  87, 102,  136, 

145, 148 

Burgess  r.  Wheate 823 

Burnett  v.  Lynch 613,  n. 

Bums  V.  Poulson 283 

Buxton  V,  Lister 825 

Cager.  Dod 680 

Caledonian  Ry.  Co.  v.  Dixon    .    .    527 

V.  Lockhart  632, 645 

Caledonian  Ry.  Co.  r.  Bprot  686, 451, 

654, 710, 711,  712,  714,  715,  717,  723 

Campbell  v,  Cochrane      ....      61 

r.  Leach 729 

».  Wardlaw 747 

Capel  ».  Girdler 389 

Capital  &  Counties  Buik  v.  Henty    296 

Cardigan  (Earl  oQ  v.  Armitage  426,  452, 

470,  609,  788 


Carpenter  V.  Wall 362 

Carr  o.  Benson      ....      789,  792 

©.Clarke 361 

Carrington  v.  Tkylor  295, 390, 321,  345 
Carrol  9.  Bird      ....      245,251 

Carter  o.  Drysdale 238 

Casamaior  v.  Strode 653 

CatteraU  v.  Catterall 164 

Caudrey's  Case 84 

Cawthome  v,  Cordrey    .     .      182, 185 

Chadwick  v.  Trower 415 

Chamber  Colliery  Co.  v.  Rochdale 

Canal  Co 554 

Chamberiain  v.  Hazlewood  .    .    .    360 

Charles  r.  Taylor 237 

Chasemore  v,  Richards  .  .  474,  548 
Chetham  v.  Williamson  .  782,  789,  792, 

793 

Cheyney's  Case 378 

Child  V.Affleck 249 

Church  V,  Indosure  Comm'rs  .    .    507 

Clapham  o.  Shillito 819 

Clare  Hall  (Master,  &c)  v.  Harding  463 
Clarke  V.  Holmes  .  .  214,219,240 
Clarkson  o.  Musgrave  ....  238 
Clavenng  v.  Clavenng  .   538,  735,  744 

Clayton  v.  Corby 580 

Clegg  V,  Rowland      .    .      725,  735 

Clifford  V.  Brandon 295 

Cloncurry's  Case  (Lord)  ...  163 
Cochrane  0.  Edmonston  ....      36 

Coleman  v.  Riches 273 

Collins  V.  Jesson 20 

Compton  (Lord)  v.  Oxenden  367,  386 
Connolly  v.  Woobrick  ....  164 
Consett  Waterworks  Co.  v.  Ritson  450, 

684 

Constable's  Case 559 

Cook  V.  North  Metropolitan  Tram- 
ways Co 219,237 

Cooper  V.  Crabtree 474 

Coppinger  v,  Gublins 735 

Costard  w.  Windet 120 

Cottrell  V,  Hughes 389 

Courthope  v.  Mapplesden  .  .  .  437 
Cowley  (Lord)  ».  Wellesley  .  .  744,  748 
Cowling  V.  Higginson  .  455,  612,  613 
Cowper  (Earl)  v.  Baker  ....    437 

V.  Earl  Cowper  ....    823 

Cowper-Essex  i^.  Acton  Local  Board  625 

Coxhead  v,  Richards 248 

Croft  V.  Alison  ....  261,  264,  276 

V,  London  ft  Northwestern  Ry. 

Co 625 

Crosby  v.  Wadsworth     ....    693 

Crowther  r.  Oldfield 534 

Cuckson  r.  Stones 210 

Cuff  V.  Brown 189 

Cuming  o.  Hill 209 


ta3i.:r  of  englibh  casks. 


Gviis*.  Danid 
Ciitterv.PoweU 


.     580\IHmfoTdo.  Tiattles 255 

aiOlDunlop  w.  Bjobcrteon 691 

I  Durham  &  Bnnderland  Ry.  Ck>. 

gr.D'Agnilar  .     lJl)JerTMSLy    !     '.     !     !     !    i 

IOU08, 109^32^4,  iw7iet:i7l'\ 

n,u^„  . 173,  1751  Badonv.Jeffcock 

SJfSJr??* ^^^*  67a\Ba8er  v.  Qrimwood       358,  362,  363 

nSln!^'*v'     •      •    728,  729,  748\Baiai*yr.Bariaranvme    458,474, 

Wr.Lmgscote      609,  611.  618,  620, 1  East  India  Co.  w.  Lewis  .    ...     374 
r.      «  621 1  Eastern  Counties  Ry.  Co.  r.  Broom    273, 

Dttnt.S|mmer 45.^  274 

iWtr  Roper  425,  426,  435,  505,  618' Ecclesiastical  Comm'ni  v.   North 


599 

273 


679 


BiTeDpoito.DaTenport  •      .      .      .437 
Dwcy «.  London  &  Southweston  Ky. 

CQ"    •••......     224 

—  r.  Shannon 182,183 

DaTiesD.  Recs  . 374 

V.  Williams        .      1      I      .      .     361 

]kT&,  Ex  parte 209 

DiTla  0.  Bhepliiora. 755 

Daviav.Tteharne  .     450,  520,  659,  660, 
682,  684,  685 

Dkh^v.  Roper 425 

Dm  0.  Thomas 124 

DeewTJ.  Guest 465,457 

DeYnncesov.  Bamum  ....    209 
MRdth^a  Case    73,  100, 101, 113, 144, 

165 
Demaoav.RoRlday    .      .      .       653,789 

Ikxudv.  3ohnson 580 

TJft^^D.Exffiiber 209 

"Dktaiit.RaniCT 746 

DilcbamP.Rond 360 

Dixon  o.Caledoiuaii  By.  Ck».    519,  528, 

639  n 

C.White     ....       659,683 

Doddo.  Holme .414 

».  Norria 362 


Eastern  Ry.  Co. 


V.  Woodhouae 


874 
753 


758 

758 

...    653 

...    593 

...    611 

469,  607,  619 

389 


Doc  V.  Amey     .     . 

—  p.BeU  .    .    . 

—  ».  Burt .    . 

—  D.  Gowcr    .    . 

—  V.  Home    .    . 

—  p.  Lock  .    .    . 

—  V.  Price  .    .    . 

—  V.  Walker 378 

Doe  ».  Wood  775, 768,  789,  792,  793, 

795,  796,  797 

Doe  V.  Woodroffe 379 

Donnellan  o.  Read      .    .    .      184,185 

Drake  V.  Mitchell 365 

Drewell  ».  Towler 612 

Drinkwater  v.  Coomhe  ....  388 
Dudley  Corporation,  Inre  .  .  .  555 
Dudley  Canal  Co.  v.  Grazebrook  .  713, 

715, 717 
Dngdale  v.  Robertson  437, 659, 676, 678 


Ecroyd  v.  Coulthard 484 

Edevain  17.  Cohen 364 

Blias  V.  Snowdon  Blate  Quar- 
ries Co 732,746 

Elliott  f.  North  Eastern  Ry.  Co. 

710,  711,  714,  715,  721,  723 

V.  North  Staffordshire  Ry. 

Co 620 

Elwes  V.  Brigg  Gas  Co 448 

©.Mawe.    .     803,804,806,810 

Ely  V.  Warren .    580 

Errington  v.  Metropolitan  Dbtrict 

Ry.Co 530,722 

Evans  V.  Walton 362 


Fanow  v.  Vansittart  466,  458,  610,  613 

Fawcett  v.  Lowther 580 

Fay  V,  Prentice 360 

Felton  V.  England 241 

Fenton  v,  Emblers .    .    .  178,  179, 180 

Ferrand  v.  Wilson 751 

Ferrers  v.  Fennor 378 

Fewings,  Ex  parte,  In  re  Snevd  .  365 
Fielding's  Case  ....  104, 152,  155 
Fishboume  v.  Hamilton  ....  450 
Fitzmanrice  (Lord)  Case  of.    .     20,  31 

Flamany's  Case 759 

Fletcher  v.  Great  Western  Ry.  Co. 

708,  713,  714,  715 

w.  KreU 210 

Folkard  v.  Hemmett  .  .  .  540,  542 
Forbes  v.  Moffatt    .     .     .    380,  391 


Fores  V,  Wilson 361 

Foster  ».  Spencer 725 

Fountain  v.  Boodle 248 

Foxcroft's  Case  72, 100, 101, 113, 144, 

145,  165 


Gale  V.  Noble 534,  547 

Okurdener  v.  Blade  .    .    .    .246,  251 

Garland  v.  Jekyll 3,  9 


\ 


TABLE   OF  ENGLISH  CASES. 


Garrett  v.  Taylor  .    .    .    295,  322,  34!6 
Gerard  &  London  &  North  West- 
em  Ry.  Co.,  In  the  matter  of  .  722 

Gibbs  w.  Tike 805 

Gibson  17.  Doeg 735 

17.  Smith 437 

Gill  17.  Dickinson 659 

Glascock's  Case 580 

Glasgow    (Lord    Provost)    t;. 

Farle.     .    485,  448,  449,  516,  517, 

519,  521,  522,  526, 527,  629, 

530,  531,  532,  723 

Oleudenmns^Eaf  parte     ....  370 

Gloucester  Banking  Co.  v.  Rudry 

Merthyr  Coal  Colliery  Co.    .    .  840 

Godfrey  v.  Littel 575 

Godleyt7.  Frith 610 

Goldsmid  i7.  Bromer 163 

Gronty  &  Manchester  &c.  Ry.,  In 

re 643 

Goodright  v.  Wells 379 

Goodson  V.  Richardson  .  462,  464,  735 

Gk>odtitle  v,  Alker 549 

GoodtiUet;.  Bailey 653 

Gowan  v,  Christie 825 

Gratland  v.  Freeman 275 

Qreat    Western    Ry.    Co.    v, 

Bennett  .    .    706,  494,  513,  520, 

523,  527,  530,  531 
Great  Western  Ry.  Co.  v,  Cefn 

Cribbwr  Brick  Co 721 

Green  t7.  Button 299 

V,  Green 154 

17.  London  General  Omnibus 

Co 335 

V.  Sparrow 831 

Greenwell  v.  Law  Beechbum  Coal 

Co 685 

Greenwood  t7.  Seymour  262, 263, 273, 284 

Gregory  t;.  Brunswick     ....  295 

V.  Piper 272,  274 

Grey  v.  Duke  of  Northumberland 

455,  539 

Grierson  v.  Grierson 40 

Griffiths  V.  London  St.  Katharine 

Docks  Co 234 

Grinnell  17.  WeUs 361 

Gunter  v.  Astor 299,  353 

Guppy  17.  Jennings 209 

GwilUan  i7.  Twist 274 

Gwillim  f.  Holland 387 

Gylbert  17.  Fletcher 209 

Haigh  17.  Jaggar 437, 759 

Hall  17.  Byron 585 

17.  Johnson 237 

Hamilton  (Dnke  oH  v.  Dunlop  787,  789, 

791 

V.    Graham  .  462, 

463,  466,  467,  470,  473,  474,  621 


Hammersmith  Ry.  Co.  v.  Brand    .    628 

Handley  v.  Moffatt 250 

Hanson  t7.  Gardiner 455 

Haiford  t7.  Morris 124, 154 

Harker  v.  Birkbeck 789 

Harmer  v.  Cornelius 210 

Harris  v.  Mantle 190 

V.  Ryding  415, 420, 425, 436,  443, 

452,  659,  672,  677,  679,  684,  692, 

705,  711 

Hart  V.  Aldridge 299 

17.  Crouley. 255 

Hartpole  v.  Kent 379 

Hau^ton  v.  Haughton  ....    155 

HawKC  17.  Corrie 151 

Hayden  t7.  Gould  77,  103, 104,  126,  147 
Haywood  t7.  Cope  •    .    .    .  817, 765 

Hedges  v.  Tagg 361 

Hedley  t7.  Fenwick 436 

Herbert's  Case  (Lord  &  Lady)     .      96 
Heron,  Sir  Edward,  Case  of    .  558,  559 

Heulins  v.  Shippam 610 

Hezt  17.  OMU    429,  447,  448,  449,  450, 

451,  487,  488,  489,  491, 

493,  499,  669,  682 

Hevdon  t7.  Smith 541,  542 

Hide  V.  Thomborough    ....    414 

Higgins  V.  Samels 825 

Hilton  t7.  Lord  Granville    .     416,  421, 
436,  444,  580,  581,  653, 

659,  692 

17.  Woods  .    873,  876,  877,  878, 

879 

Hoare  v.  Niblett 364 

Hodgson  t7.  Field 452,541 

Holcombe  v.  Hewson     ....    190 

Holder  v.  Dickeson 148 

HolUday   v.  Mayor,    &o.,   of 

Wakefield 622 

HoUoway  t;.  Berkeley    ....        9 

Holmes  i7.  Bell 374 

17.  North  Eastern  Ry.  Co.    275 

Hughes  t7.  Percival 274 

Hull  &  Selby  Ry.  Co.,  In  re     559,  565, 

572,  574 

HuirsCase 724 

Hnmphrles  t7.  Brogden    .    407,  420, 

421,  436,  653,  672, 

679,  692,  705,  711 

Huzzey  v.  Field 269 

Inglis  (7.  Robertson 38 

Irwin  17.  Dearman 361 

Jackson  v.  Stacy 612,  613 

Jefferys  v.  Fairs 826 

Jefferys  v.  Smith 835 

Jeffreys  v.  Williams 692 


o«. 


TASLB 


ftgon  V.  Vivian    V»,  744, 77  4.  glyT 

/enings  v.  Florence 3o2 

Jennings  v.  Brougttou     •    •     Sl9,  Ro^ 
Jeney(Eariof)».HeattiT]moii    .    Zt^ 


^^^CH^lSH 


CASKS. 


21 


'OZMS 


V.  I>avle« 


874 


'one,«:-H;;^,^-  :  :  •.  •.  •  v.? 


758 


480 
352 


^^^- Boycott.  .  :  :  :  ■ 

"^^^  ^'  WMtehaven  Coiu: 

T^eeU^.;Hi.W^^^  :  295;  297,  iS 

299,  318,  819,  320,  321,  324 

W..Henxy    ^^^^^^^  ^^^«  346,  3g 

^r  ^^jJ^aU  Bock  Co.  .    .     .     238 

KendiOl  V.  Hamaton  ....    364 
W  CEarl  oO  v.  Walters  ...     538 

Keppelr.  Bailey 553 

Keyse  p.  Powell        455,  456,  462,  466, 

Kinder  v.  Jonea 437 

A^mgr.  Hoare 369,370 

-—  p.  London    Imppoved     Cab 
^ 274 


V.  Luff 


165 


Kingston  v.  Preston  .     !     .*    !    .*  190 

Kinsman  v,  Jackson  ...  335 

Knight  V.  Crockford  .     ...'.'  183 

Knowlman  v.  Bluett  ...  1 82 

Kyle  ©.Jeffries     .....'.'  263 

Lamb  V,  Evans     ...  oki 

— t'-paik :  :  III 

Langan  v.  Great  Western  Ry.  Co.  275 
Lanvon  ».  Came  ....  4  6  7 

Lautourr.Teesdale  .     .     80,'l08;  156 
Lawrence  ».  Great  Northern  Rv. 
Co. -      g^ 

Lawton  v.  Lawton  ...  *  804 
Lax  ».  Corporation  of  Darlington  226 
L«jroyd.,.5Brook.     .     .     .    ^208,209 

- —  V.  otevenson  .    .     .  700 

Leach  v.  Campbell     .     .     .     !  75? 

Lewis  tt  Jones .370 

— —  V,  Branlhwaite  .  455/456.  462, 
T,«-H.      »  .^  *63,  466,  468 

«wls  ».  PotharglU    ....    766 


I^wis  V.  Smellie  .     .     .  'a^^ 

i^wis  Bowles' Case  .    .     .     '    '  (7^ 

I^iford'sCase    .....;  fl? 
*-teipiis  V.  London  General  Om 

I.iiigwoodt..Gyde..     .     .     !  ^^^' Jgl 
Xiiquidation  Estates  Purchase  Co' 

V.  Willoughbj *     309 

liistowel  (Countess)  v.  Gibbingo    .    425, 

Littledale  17.  Lord  Lonsdale.     .     .     409 
Livingstone  ».  Rawyards  Coal  Co.    874 

TWoii  T  876,877.878,882 

Llewellyn  v.  Jersey   ....  753 

^^^''Ti.''*^'^^^^''  •  •  •  -874,879 
Loheld's  Case ^qq 

London  &  North  Western  Ry.  Co! 

r.  Evans 555 

— — V,  Lancashire  &  Yorkshire 

Ry.  Co 437 

London  Tramwavs  Co.  v.  London 

County  Council igi 

Lonsdale  (Earl)  w.  Littledale  .  .  409 
Lord  Advocate  r.  Hamilton      .     .     565 

Love  t;.  Bell 657,450 

Low  Moor  Co. ».  Stanley  Coal  Co.    599, 

T      ^      o      X.  765.795 

Lowd  V.  Govett    .     .     .    560,  562,  564 

Lucas  V.  Dixon J83 

; V.  Nockells 608 

Lumley  v.  Oye  .    285,  295,  299,  300. 
314,  316,  321,  323,  324,  326, 
330,  332,  334,  337,  344, 
T   ^j  11      ^  353,  354,  355,  356 

Lyddall  ».  Weston .  638,  541,  586,  588 
Lyons  v,  Martin  .  .  .  262,  263,  264 
Lyons  (Mayor  oQ  v.  East  India  Co.     164 


M'Adam  v.  Walker    . 
M'Donnell  v.  M'Kinty 


35,  39,  97,  157. 

161 

.  594,  595,  696, 

mr    ji        I,      ,,  597,  598 

Macdonnell  17.  Marston  .  .  .  .  2II 
Mc  Gregor  v.  Mc  Gregor    .     .  182,  183 

Mc  Innes  v.  More 42 

M'Lauchlan  v.  Dobson  .  .  !  40  41 
Maclean  v,  Christall  ....  163, 164 
M'Mauus  V,  Crickett.  .  255,  272,  274, 
nr     .  .  276,  282 

Magdalen  College  Oxou  w.  Att.- 

Gen 593 

Mansfield  v.  Crawford  ....  735 
ACanvell  r.  Thomson  .  .  357,  362 
Maritime  Bank  of  Canada  v.  l^eN? 

Brunswick  Receiver  GteneT^l     .    ^^0 
Marlborough  (Duchess")    -».  Giay     .    *i5*i 
Martin  v.  Porter    a^bOL,  ^b^,  ^b^,  ^7^, 
874,  STB.  W.^77,^7^ 


xu 


TABLE   OF  ENGLISH  CASES. 


Maunder  v.  Venn 361 

Mavor  v,  Pviie 182, 185 

MeUor  v.  Walker 607 

Menzies  v.  Earl  of  Breadalbaue    .   493, 

499 
Mexborougli  (Earl  oQ  v.  Bower    .   455, 

458 
Micklethwaite  v.  Winter  .  .  426,  437 
Midgley  v,  Bichardson  ....  436 
Midland  Ry.  Co.  v.  Gheckley    .  434,  n., 

437,  449 
V,  Hannchwood  .   605, 

518 
Midland  Ry.  Co.  v,  RobiziBon .  516, 

723 

Millett  V.  Davey 744 

MitcheU  v.  CrassweUer  .    252,  281, 

282,  283 

».  Dors  ....      437,455 

Mines,  Case  of    ...    .     393,  588 
Mo£Fatt  V.  Hammond  ....  380 

Mogg  V.  Mogg 437 

Mogul  Steamship  Co.  v,  M'Gregor    294, 
295,  312,  348,  349 

Moore  v.  Bawson 653 

Morgan  v.  PoweU      873,  875,  876,  877, 

879 
Morley  r.  Gaisford.  .  .  .  272,274 
Morris  v.  Rhydydefed  Colliery  Co.     728 

Mostyn  v,  Lancaster 752 

Moult  V.  Halliday 251 

Mountjoy's  Case  (Lord)  782,  788,  789, 
792,  793,  796,  797 

Moyle  r.  Jenkins 238 

r.  Mayle 735 

Munday  v,  Thames  Ironworks,  &c. 

Co 238 

Mundy  v,  Duke  of  Rutland      .     .     684 
Murray  v.  Johnston 690 


Neill  ».  Duke  of  Devonshire     .    .  788 

Netherseal  Colliery  Co.  v.  Bourne  197, 

198,  200,  202,  203,  205 

Newby  v,  Harrison 789 

Newcastle's  Estates  (Duke  oQ,  In  re  754 

Niblett  V.  Smith 190 

Nichol  w.  Martyn 251,352 

Norraanton  Gas  Co.  v.  Pope     .     .  555 

Norris  v.  Birch 251 

North  Eastern  Ry.  Co.  v.  Elliot    .  721 

North  Western  Ry.  Co.  v.  Ackroyd  714 

Northam  v.  Hurley 653 

Norton  v,  Jason 359 

Norway  v.  Rowe 598 

Owen  V.  Owen 389 

V.  Thomas 819 


Paddock  v.  Forrester 680 

Paine'sCase 148 

Parker  v.  Gage 3,  7 

Partridge  f.  Ball 612 

V.  Scott 414 

Pasley  t;.  Freeman 294 

Paterson  o.  Wallace 219 

Pattison  v.  Jones 248 

Payne's  Case 72 

Peachey  v.  Rowland 272 

Pearce  v,  Foster 210 

Pearse  v.  Baron 728 

Peter  v.  Compton 183 

Peyton  p.  Mayor,  &c.,  of  London .    413 

PbilUps  ».  CMt 208 

Pitt  0.  Donovan 323 

—  V,  Pitt 888 

Plant  r.  Scott 873 

Player  v.  Roberts  .    .     .  638,  641,  545 

Pollard  V.  Clayton 825 

Popple  V,  Sylvester 365 

Portiand  (Duke  oQ  w.  HiU  .  .  547,  585 
Portynton  v.  Steinbergh ....     137 

Potter  V.  Faulkener 274 

Poulson  V,  Wellington  ....  787 
Pountney  v.  Clayton  ....  520,  722 

Powell  V.  Aiken 455,458 

V.  Nickerman 474 

Price  V.Gibson 388 

V.  Meulton 369,  372 

— -  V.  Woodhouse 3 . 

Pride,  Re,  Shackell  w.  Colnett  .  .  388 
Priestley  r.  Fowler  .  .  .  .237,241 
Proud  V.  Bates  .  .  462,  466,  468,  471 
Pugh  V.  Golden  Valley  By.  Co.  .  506 
Purcell  w.  Nash 735 


Quartz  Hill  Co.  v.  Eyre 


305 


R.  V.  Bathwick  (Inhabitants)   •    •    156 

—  V.  Brampton  (Inhabitants)  .  80,  108, 

—  ».  Brettel 428,435 

—  v.  Carroll 160 

—  ».  Daniel  Ancruey 112 

—  V.  Dixon .    273 

—  v.  Druitt 292 

—  V.  Dunsford  ....  425,  435,  521 

—  r.  Fielding 78 

—  V.  Fuller 307 

-.  v.  Halliday Ill 

—  V.  Holbrook 273 

—  V.  Kinnersley 307 

—  V.  Leeds  &  Selby  Ry.  Co.    .  646,  691 

—  V.  Lord 209 

—  ©.  M'LaughUn Ill 

—  r.MarshaU 110,111 


TABLE  OF  ENGLISH  GASES. 


nil 


ILv.ldUtt 


>,  110,  160, 161,  164, 

les,  166, 171, 172, 174 

628 

111 


—  tj.^edft\ey  CX^oli^itents  oQ  428,435 

—  «.o\eph.ens 272 

—  «.  ^letting 307 

—  i>.loboTi 272 

—  T».  "Vbudele-ur        209 

—  v.^aakbrooV. 653 

—  u.lVeAfoTd 210 

-tj.^\lboii Ill 

—  t.'^^combe  Ry.  C3o 506 

-v.X«tVK>Toiigli  (LK>id)  559,  565,  572, 

575 
^amaay  «.  Blair      ...  472,  474,  621 

iLa^moiid  «.  Mmton 208 

Rayson  v.  Souib  Liondoa  Tiamways 

Co 273 

Reed  ».  Passer 80,107 

Rice  o.  Manky 299 

Richards  o.  Jenkins    .     .    .      420, 679 
Rigby  V.  Great  Western  Ry.  Co.   .    853 

Ritchie  V.  Wallace 38 

Roads  0.  Overseers  of  Trumpington  487, 

794 

Robb  V.  Green 251 

Roberts  V.  Eberhardt 839 

V.  Haines  .     436,  448, 659, 7 1 1 

Robertson  9.  Strang 691 

Robinson  v,  Hindmaa     ....    190 

V.Milne 448 

Rochdale  Canal  Co.  v.  King     .    .    464 

Rockey  r.  Huggins 580 

Roe  V.  Baldwere 379 

».  Vernon 547 

Rogers  v.  Brenton 419 

r.  Taylor    ....      451,653 

Rooke'sCase 823 

Rosse  (Earl  of)  v.  Wainman     426,  437, 

468 

Rosse'sCase 379 

RowlMtham  v.  "Wllaon    .    647,  437, 
443,  659,  675,  677,  683,  685,  787 

Rowe  V.  Brenton 580 

Rowlands  v,  Evans 839 

Roabon  Brick  Co.  v.  Great  Western 

Ry.  Co 532,  723 

Ruding  V,  Smith 153 

Rutland  v.  Greene 544 

Rutland  (Countess)  v.  Gie  .      542,  580 

Ryddall  v,  Weston 419 

Rylands  V.  Fletcher    .     .    .      628,659 

Sabbatarian  Case 104 

Saliabury  (BCarqniB  of)  v.  Glad- 

•tona 579,547,584 

Salop  (Countess^  v.  Crompton  .  .  735 
Samuel  v,  Edinourgh  ft  Glasgow 

Ry.  Co 690 


PA«B 

Batinden'B  Case  .  .  723^  537,  735 
Saunderson  v.  Jackson    ....    183 

Saver  v.  Pierce 839 

Schneider  v.  NorrxB 183 

Scott  V.  Dixon 191 

».  Fenhoullet 379 

Scratton  v.  Brown  .  559,  565, 572,  573 
Scrimshire  v.  Scrimshire  133,  141,  147 
Seaman  v.  Vawdrey    .     .     585,  788 

Selbyr.  Alstou 379 

Selman  v,  Courtney 553 

Selsey  (Lord)  v.  Lord  Lake  .  .  388 
Senhouse  v.  Christian  .  .  598,  620 
Seymour  V.Greenwood  262, 268, 273, 284 

Sbiafto  V.  Johnson 674 

Sharpe  v.  Gibbs  .  .  .  369,  371,  373 
Shelbume  (Lord)  v.  Biddulph  .  .  379 
Shepherd  t^.  Wakeman  ....  299 
Shrewsbury  (Countess)  v.  Earl  of 

Shrewsbunr 388 

Sidney  v.  Miller 389 

Sleath  V.  Wilson 254 

Smart  0.  Magistrates  of  Dundee  565,572, 

573 
Smart  o.  Morton  436, 443,654,  659, 677, 

692, 711 

Smith  v.  Baker 238 

17.  Collyer 437 

V.  Darby 679 

V.  Earl  of  Stair      ....     560 

V.  Great  Western  Ry.  Co.   .   519, 

625,  626,  637 

V.  Kenrick 416 

V.  Lloyd  594,  595,  596,  597,  598, 

788 

V.Maxwell.     .    .     .      108,156 

Smythe  v.  Smythe 837 

Souch  V.  Strawbridge  .  .  181,  182 
Spain  V.  Amott     ....      190,  210 

Speight  V.  Oliviera 361 

Spencer  v.  Scurr 744 

Spencer's  Case 653 

StafiFord  (Marquis  oQ  9,  Coyney    .    612 

Stanlev  V.  Riky 795 

Stansell  v.  Jollard 415 

Steadman  v.  Powell 157 

Stephens  v.  Brydges 378 

Stephenson  v.  Hm 580 

Stevenson  v.  Newnham  ....  335 
Stockdale  v.  Hansard  ....  91 
Stone  V.  Hyde  ..*....  238 
Story  r.  Loid  Windsor  ....  839 
Stoughton  V.  Leigh  .  .  746,  747,  749 
Stourbridge  Canal  Co.  v.  Earl  of 

Dudley 715 

Stubbing  i?.  Heintz 275 

Summers  v.  Solomon 275 

Sussex  Peerage  Case 163 

Bntherland  (Duke  of)  V  Heath- 
cote 785 


XIV 


TABLE   OF  ENGLISH  CASES. 


Swinfen  v,  Swinfen 388 

Sydserff  O.Reg 307 

Sykes  o.  Dixon 352 

Taff  Vale  Ry.  Co.  r.  Giles    ...    273 

Tanistxy  Case 580 

Tarleton  v.  M'Gawley  294, 299, 322, 346 

Tavemer  v.  Little 255 

Taylor  v.  Kello 37,  41 

V.  Mostyn  ....      752,  876 

V.  Rowaa 250 

V,  Shafto     .    .    .  673,  674,  683 

Temperton  v.  Russell  313, 316,  318, 321, 
325,  327,  330,  331, 336, 351 

Terry  u.  Hutchinson 361 

Thames  Conservators  v.  Smeed     .    578 

Thew^  V.  Wingate 588 

Thomas  v.  Kemish     .    .    .      386,  387 

V.  Oakley  .    .    .  437,  455,  458 

. V,  Quartermaine  .  214, 215,  216, 

218, 219, 220,  223, 224^  225, 227,  228, 

230,232,235,236,238 

Thomasson  &  Grierson,  Case  of    .      31 

Thome  v,  Cann 389 

Tippet  ».  May 190 

Todd  V.  Dunlop     ....      565,  573 

Torrence  v.  Gibbins 360 

Toulmin  v.  Steere  ....      388,  389 

Tourret  i;.  Cripps 183 

Tregonwell  v.  Sydenham  ...  389 
Trevivan  v.  Lawrence  ....  656 
Townley  v.  Oibaon      .    .      477,  545 

Trotter  t».  Maclean 873 

Trower  v.  Chadwick 415 

Tucker  v.  Linger 447 

Turberville  V.  Stamp 269 

Turner  v.  Mason 210 

Tyson  o.  Smith 580 

United   Merthyr   Collieries    Co., 
Ltre  .    .    .  873,  874,  877,  878,  879 

Vanhaesdanke,  Case  of  .    .      658,  559 

Verrey  i;.  Watkins 362 

Vice  V,  Thomas 759 

Vigeyena  v,  Alvarez 126 

Viner  v,  Vaughan 736 

Vivian  v.  Champion 612 

Vyvyan  v,  Vyvyan 736 

Wake  ».  HaU    ....      797,  815 

Wakefield  v,  Duke  of  fiuccleuch  450,483 
Walker  v.  Cronin      .    .   298,  355,  356 

V.  Great  Western  Ry.  Co.    275 

Wansford's  Lessee  v.  Stephens  668,  659 
Ward  v.  Countess  of  Derby     .     .     815 

Warwick  v,  Bruce 209 

V.  Queen's  College     .     .585 

Weaver  v.  Sessions 190 

Webb  V.  East 251 


Webb  V.  Hewitt 372 

V.  Russell 379 

Wedgewood  w.  BaQey  ....  672 
We^Prosser  v,  Evans  .  .  .  .  365 
Weld  V.  Chamberlaine  .  .  103,148 
Weatem  v.  Bailey  ....  1 
Westwick  v.  Theodor  ....  208 
Wheatley     v,     Weatminster 

Brjrmbo  Coal  Co 827 

Whincup  V.  Hughes 209 

Whistler's  Case 10 

Whitchurch  v.  Whitchurch ...     379 

White  ».  Cuyler 374 

V.Damon 823 

Whitehead  w.  Tuckett  ....  275 
Whitehouse    v.    Wolverhampton 

Ry.  Co.      .   625,629,633,636,637 

Whitley  V.  Loftus 209 

Whitfield  V.  Bewilt  .  .  .  729,  735 
Whitwham  v,  Westminster  Brymbo 

Coal  Co 875 

Wickham  v.  Eufield 146 

V,  Hawker      .  469,  607, 610, 

619,  663,  789,  791 
Wigmore's  Case  20,  79,  105,  134, 135 
Wiifsell  V,  Wigsell 388 


Wild  V.  Chamberlayne 

V.  Holt    .    .    . 

Wilde  V,  Minsterley  . 
Wilkes  v.  Broadbent  . 
V.  Collin    .    . 


Wilkinson  v,  Haygarth 
Williams  v.  BaynaU    . 

V.  Rice   .    t 

Willoughby  v,  Willoughby 
Wilson  V.  Mackreth 
V.  Merry    . 


.       76 
876,  879 
.     410 


.  547 
.  387 
.  867 
.  678 
.  190 
.  889 
593,  798 
214,  237,  242 


w.  Willes   .    580.681,582,584 

Wimbledon  &  Putney  Commons 

Conservators  e.  Dixon  .  .  .  621 
Winch    17.    Conservators    of    the 

Thames 226 

Winoheater    (Biahop    of)     v. 

Knight        533,  539,  544,  647,  580, 

681,  583 

Winsmore  v.  Greenbank    299,  307,  333 

Winatone  v.  Idnn    .   .    •     186,  211 

Wiscot'sCase 379 

Wolfe  V.  Birch 735 

Wood  V,  Leadbitter 653 

V.  Morewood     .      859,  873,  874, 

876,  877,  878,  879 
Woodland  ».  Mantel  .....  3 
Woodley  v.  Metropolitan  District 

By.  Co.  .  219,  231,  232,  234,  236 
Woodward  v.  Walton     .    .    .    •    360 

Woolf  V.  Beard 255 

Woolston  V.  Scott 154 

Wrayv.  Eoss 652,654 

Wright  w.  Elwood 110 


TA:BliK     0:B'     ENGLISH  CASES. 


XV 


KJ.V/J.     .     •  ...  QT^i 

W^kfit.Rog^rt    •*...'.      *       305 


^armonth  v.  Franoe 

Yelverton  v,  Longworth 
Younger,  Case  of  .    .    « 


Zouche  (Lord)  v.  Dalbiao 
V.  Moore 


•    217 

.    162 
29,33 


10 
593 


TABLE  OF  AMERICAN  CASES. 
VOL.  XVIL 


pAaB 

Adam  v,  Briggs 840 

V.  Brig^  Iron  Co.     .     .     .    421 

Albro  t;.  Jaquith 244 

Almony  v.  Hicks 878 

Anderson  r.  Bennett 242 

Andrus  v.  Vreelaud 391 

Angle  V.  Chicago,  &c.  Ry.  Co.  353,  356 

Arnold  v.  State 176 

Atchison,  &c.  R.  Co.  e.  English    .     184 

V.  Mciee     .    240 

Atkins  V.  Field 245 

Austin  V,  Gibson 374 

».  Huntsville    .     .     .     .879,883 

Aycrigg  v.  N.  Y.,  &c.  R.  Co.   .    .    281 


Babcock  v.  Stewart 840 

Bacon  v.  Mich.  Cent.  R.  Co.    .     .  252 

Badger  v.  Badger 169 

Baker  v.  Wheeler 876 

Baldwin  o.  Porter 876,  879 

Balor  V.  Delaware,  &c.  R.  Co.      .  239 
Baltimore  Base  Ball  Qub  v.  Pickett  211 

Barabasz  v.  Karat 281 

Barnum  v.  Bamum 171 

Bart  V.  Byrne 212 

Bartley  v'  Richtmyer      ....  362 
Barton  Coal  Co.  ».  Cox      .    .  879,  882 

Bashaw  ».  State 172, 176 

Beatty  v.  Gregory 797 

Beazley  v.  Sims 366 

Belair  o.  C  &  M.  V.  R.  Co.     .    .  240 

Bell  V.  Woodward 392 

Benton  v.  Pratt 354 

Berry  v,  Doremus 184 

Be?erling  w.  Beverling    ....  171 

Beverson,  Estate  of 175 

Billings  p.  Taylor 759 

BUen  Avon  C.  Co.  v,  McCuIloh  .  882 

Blanchard  v.  Usley 362 

Blanding  v.  Sargent 184 

Bogg  V.  Merced 421 

Bonestecl  v.  Todd 365 

Boone  v.  Stover 796 


Boston  Glass  Manuf.  v.  Binney     .  353 

Boswell  V,  Bamhart 242 

Bowler  v,  O'Connell 281 

Boyd  V.  Bird 363 

Bourlier  v.  Macauley 353 

Bowen  v.  Hall  ...    .  353,  354,  356 

Boynsen  v.  Thorn 354 

Brennan  v.  Fairhaven  &  Westville  R. 

Co 276 

Broadwell  v,  Getman 184 

Brothers  v.  Cartter 242 

Browkaw  v.  New  Jersey  R.  ft  Trans. 

Co 280 

Brown  v.  Birdsall 366 

V,  Johnson 365 

Browufield  r.  Hughs 239 

Bryant  v.  Rich 277 

Burgan  v,  Lyell 840 

Burns  v.  Ponlson 283 

Burr  V.  Spencer 732 

Burton  v.  Perry 391 

Busch  V,  Fisher 883 

Bush  V.  Sullivan 797 

Butterfield  v,  Ashley      ....  353 

Buzzell  V.  Manuf.  Co 239 


Caden  v.  Farwell 211 

Calvo  r.  Charlotte,  &c.  R.  Co.      .  242 

Caldwell  ».  Fulton 475 

Campbell  v.  Carter 392 

V,  Cooper 353 

Canadian  Bank  v,  Northwood  .     .  374 

Cardigan  v.  Armitage     ....  452 

Carlin  v.  Chappel 421 

Carroll  v.  Bird 251 

Carrow  v.  Headley 391 

Carter  v,  Howe  Machine  Co.  .     .  280 

V,  Louisville,  &c.  Ry.  Co.  278,  282 

Can^hey  v.  Smith 353 

Caujolle  ».  Ferrie 171 

Cayzer  p.  Taylor 241 

Central  Ry.  Co.  v.  Brewer  .     .     .  2fi0 
w.  Peacock.    .    .  278 


TABLE    0:F    AMERICAN  CASES. 
VOL  XYIL 


/ 


Adam».Briggs -.840 

—  p.Briggs  Iron  Ck>.        .      .     .     421 

Albro ».  Jaquith 244 

Almony  v.  Hicks 878 

Andereoii  v.  Beunett   ..'.*..     242 

Andras  v.  Yreeland 391 

Angle  «.C\i\cago,  &c.  B.y.  Ck>.   353,  366 

Arnold «.  Slate 176 

Mdlson,  &c.  "EL  Co.  t>.  'E^netMsh     .    184 

«.  McKee      .    240 

Mk\nsD.F\c\d 245 

\\isl\a ».  GibaoiL 374 

D.EvmtsTiWe     .      .      .      .879,883 

Aycnggr.  "N.  X.,  &o.  B..  Co.    .     .    281 


^Bj^msocVlv.  Stewart 840 

'BacoTi «.  ^ic\i.  Cent.  R.  Co.    .     .    252 

Badger «.  "Badger 169 

Bakei ».  VTiie^eT 876 

Baldwin  r.  Porter 876,879 

Balor  V.  Delaware,  &c.  R.  Co.      .    239 
Baltimore  Base  Ball  Club  v.  Pickett  211 

Barabasz  v.  Karat 281 

Bamum  v.  Bamum 171 

Bart  0.  Byrne 212 

Bartle?  v.  Richtmyer       ....     362 
Barton  Coal  Co.  v.  Cox       .     .  879,  882 

Bashaw  ».  State 172,176 

Beatty  v.  Gregory 797 

Beazley  v.  Sims .366 

Belair  v.  C  &  M.  V.  R.  Co.     .    .    240 

Bell  V.  Woodward 392 

Benton  v.  Pratt 354 

Berry  »-  Doremus 184 

Beverling  v.  Beverling    ....     171 

Bererson,  Estate  of 175 

Billings  V.  Taylor 759 

Blaen  Avon  C  Co.  v.  McCulloh  .    882 

Blanchard  v.  Ilsley 362 

Bknding  v.  Sargent 184 

Bogg  V.  Merced 421 

Bonesteel  v.  Todd 365 

Boone  v.  Stover 796 


pAoa 

Boston  Glass  Manuf.  v.  Binney     .  353 

Boswell  V.  Bamhart 242 

Bowler  v.  O'Conncll 281 

Boyd  V.  Bird 363 

Bourlier  v.  Macauley 353 

Bowen  w.  Hall  ...    .  353,  354,  356 

Boynsen  v.  Thorn  ......  354 

Brennan  v.  Pairhaven  &  Westville  R. 

Co 276 

Broad  well  v.  Getman 184 

Brothers  v.  Cartter 242 

Browkaw  v.  New  Jersey  R.  &  Trans. 

Co. 280 

Brown  v.  Birdsall 366 

V,  Johnson 365 

Browufield  ».  Hughs 239 

Bryant  v.  Rich 277 

Burgan  v.  Lyell    ....••  840 

Barns  v.  Poulson 283 

Burr  V.  Spencer 732 

Burton  v.  Perry 391 

Busch  V,  Fisher     ......  883 

Bush  r.  Sullivan 797 

Butterfield  v,  Ashley      ....  353 

Buzzell  V.  Manuf.  Co 239 


Caden  v.  Farwell 211 

Calvo  r.  Charlotte,  &c.  R.  Co.      .  242 

Caldwell  v,  Fulton 475 

Campbell  v.  Carter 392 

».  Cooper 353 

Canadian  Bank  v.  Northwood  .     .  374 

Cardigan  v,  Armitage     ....  452 

Carlin  v.  Chappel 421 

Carroll  v.  Bird 251 

Carrow  v.  Headley 391 

Carter  v,  Howe  Machine  Co.   .     .  280 

V.  Louisville,  &c.  Ry.  Co.  278,  282 

Caughey  v.  Smith 353 

CaujoUe  t».  Ferrie 171 

Cayzer  v,  Taylor 241 

Central  Ry.  Co.  v.  Brewer  .     .     .  2«^0 
1;.  Peacock  ...  278 


XVIU 


TABLE  OF  AMEBICAK  CASES. 


PASB 

Chamberlain  v,  Collinson     .     .    .  879 

V.  Milwaukee  .    .     .  245 

Chambers  v,  Baldwin     .     .     .     .  333 

Cbampney  v,  Coope 391 

Charters  B.  M.  Co.  v.  Mellon     .  475 

Chatfield  v.  Wilson 353 

Cheenej  v.  Ocean  S.  S.  Co.     .     .  239 

Cheney  v.  Arnold 1 74 

Chicago,  &c.  Ry.  Co.  v.  Dickinson  277 

V.  Flexman  .  278 

Chicago,  &c.  R.  Co.  v.  McMahon  279 

V.  Moranda  .  242 

V.  Ross      242,  245 

V,  Swanson  .  242 

Chicago  &  Alton  R.  Co.  v.  Murphy  241 

Chicago,  &c.  Co.  v.  Van  Dam       .  239 

Chipley  v.  Atkinson 356 

V.  Atkinson    ....  363,  355 

Claggett  V.  Salmon 374 

Clancy  ».  Clancy 171 

Clark  V.  Field 174 

».  Holmes 240 

Clement  ».  Du£fy 883 

Clift  i;.  White 380,  391 

Clinton  Bank  v.  Hart     ....  365 

Coates  V.  Cheever 754 

Coleman  v.  Chad  wick     ....  421 

V.  N.  Y.  &  N.  H.  R.  Co.  278 

Collins  V,  Lemasters 366 

V.  Voorhees 171 

Colorado,  &c.  R.  Co.  v.  Ogden     .  239 

Com.  i;.  Jackson 176 

V.  Littlejohn 176 

V,  Munson    .          ....  169 

V.  Stump 168, 172 

Compton  i;.  Martin 184 

».  Oxenden     ....  391 

Connors  v.  Connors 174 

Coombs  t7.  New  Bedford  Cordage  Co.  240 

Corcoran  v.  Holbrook     ....  244 
Cosgrove  ».  Ogden     .    .  278,  279,  283 

Cottrill  V,  Chicago,  &c.  R.  Co.      .  240 

Counsell  v.  Hall 240 

Cowan  V,  Radford  Iron  Co.      .     .  796 

Curran  v.  Galen 356 

Currie  v.  Hodgins 374 

Curtis  V.  Sage 184 

V.  Ward      .....  879 

Cusliiug  V.  Longfellow   ....  882 

Creed  v.  Pennsylvania  Railroad  Co.  276 
Crescent  Horseshoe  &  I.  Co.  r. 

Eynon 211 

Croaker  v.  Chicago,  &c.  Ry.  Co.   .  277 

Croft  V.  Alison 276 

Crouch  V.  Puryear 754 

Crutchfield  ».  R.  &  R.  I.  Co.    .     .  240 

Dale  V.  Harris 252 

Daniel  u.  R.  R  Co 278 


PAOB 

Dantv.  Head 184 

Darrkan  v,  N.  Y.,  ftc.  R.  Co. .     .  242 

Davidson  v.  Abbott 362 

Dayis  v.  Anable 374 

V.  Detroit  &  M.  R.  Co.       .  240 

Dean  v.  St.  Paul  Union  Depot .    .  282 

Denison  v.  Denison 170 

Dennett  r.  Chick 366 

Dennis  o.  Clark 362 

Devol  V,  Halstead 366 

Dickson  v.  Frisbee 185 

V.  Omaha,  &c.  R.  Co.     .240 

Dieringer ».  Meyer 211 

Dietz  V.  Mission  Transfer  Co.  .     .  475 

Dist  of  Columbia  v.  McEUigott    .  239 

Dixon  v.  Rankin 245 

Dobbin  v.  Richmond,  &c  R.  Co.  .  244 

Doe  v.  Wood 796 

Dolby  V,  Kinnear 211 

Dougherty  v,  Creary 840 

r.  Jack 391 

DriscoU  17.  Scanlon 281 

Duff  V.  Snider 185 

Duffie  V,  Malthewson      ....  281 

Dumaresby  v.  Fishly       .     .      169,  172 

Dumas  r.  State 176 

Dunbar  v.  Williams 211 

Dunbarton  v.  Franklin   .    168,  171, 176 
Duncan  v.  Duncan     ....  172, 175 

Durfee  v.  O'Brian 184 

Dutton  V.  Ives 392 

Dwight  V,  Elmira,  &c.  R.  Co.       .  883 

Dyer  ».  Brannock 172 

Dyke  v.  National  Transit  Co.  .     .  882 

Earley  v.  Craddock 211 

Eason  v.  Railway  Company      .     .  276 

East  J.  I.  Co.  V,  Wright      ...  796 

Eastern  T.  B.  v.  Bebee  ....  365 

Edeecomb  v.  Buckland  ....  211 
Eichengreen  r.  Louisville,  &c.  R. 

Co 280 

EUicott  tf.  Turner 184 

Elliott ».  Porter 365 

Emery ».  Smith 184 

Ensley  v.  Nashville 877 

Entner  v,  Benneweis       ....  362 

Erdman  v,  Illinois  Steel  Co.     .     .  239 

Eureka  Co.  v.  Bass 240 

Evans  v.  Davidson 277 

Evansville,  &c.  R.  Co.  v,  McKee  .  282 


Farley  V.  Farley 172 

Farwell  v.  Boston 241 

V.  Boston  &  W.  R.  Co.     .     243 

Feltham  ».  England  .  .  .  240,  241 
FerraU  v.  Bradford  .  .  .  365,  366 
Fick  V,  Chicago,  &c.  Rv.  Co.   .     .     281 


TABLK    O^    AMEWOiLN    CASUS. 


XIX 


a^Sf.;.!...*^;  inSfctJ!^  :  :  :  ;  :  lit 

Ayr.  Sable       •      •      .  .      379  iHallett  v.  Collins  .     .....    172 

Wcr^.  Baltimore  &P^  2Sa\  Ham  v.  Sawyer 879 

Flier,  Bwton  &  ^  B.  Co.       .      .      2441  Haukins  v.  S.  Y.,  &o.  R.  Co.  .     .     243 
Rowrt  Penn  R.  Co.    ...       .      276  \  Hanson  v.  European  &  N.  A.  Ry. 

Jojdti.  Calvert    ....,,      -^rjA     Co.      .    .     . 277 

Flynn  v,  Kansas,  &c.  K.  Co.      .      .      239  \  Harlow  u.  Lake  Superior  Iron  Co. 
footcr.MernU     .      .      .    877,879.883  732,754 

Forbes  p.  Grawiy 475 1  Harper  w.  Ind.  &  St.  Louis  R.  Co.    244 

—  p.Moffatt S911  Harris  V.Dunn 365 

fonlp.Fitchburg  R.  Co.  .  .  .  239 ' 
PorsTth ».  Wells  .  .  .  877,879,882 
Fowler©.  Fay 39I 

251 


R: 


Powlesp.  Bowen  _      .      .       ,       . 
Fr«ikliii  Ck>al  Co.  v.  McMillan 

FtMeTP.  iVeemaa 278 

Irecmaa      Paul  ...:..  390 

Fresln.  Cutter 252 

Fryerclfryer I75 

FunnMi  V,  Van  Sire 362 

Gtibrielson  v.  Waydell      .       .      .  273,  280 

Gallo.GaU 176 

GalYcston,  &c.  R.  Co.  u.  I>oiiaboe  278 

Gaxdnei «.  Astor          391 

r.S\adc 251 

(kcreUeu «.  Dunckel        .      ...  279 

Gaitevder.  Outley 796 

GaTvejw.Dury 276 

Garidnst.  Davis 883 

Galea  i>.  Boom  Co 883 

GatAftx  B.  Mkvnson 796 

^\»OTi «.  Cte\iore 391, 392 

Gilliam ».  Southern,  &c.  R.  Co.    .  278 

GiUiBgbam  v,  0\no  R-  Go.    ...  280 

Gloainger  0.  fraukUn  Coal  Co.     .  796 

Goddard  v.  Graud  Trunk  Ry.  Co.  277 

Golden  ».  liewbrand 279 

Goller».¥ett 879,882 

GonfloUs  D.  Gearhart 211 

Goodloe  V.  Memphis,  &c.  R.  Co.   .  280 

Gould  V.  G.  W.D.  C.  Co.   ...  451 

Graham  v.  Beunett 172 

r.  Pierce 840 

17.  St  Charles  S.  R.  Co.    .  356 

Green  V.  State    .......  176 

Greeue  v.  Minneapolis  &  St.  Louis 

R.  Co .238 

Greenleaf  v.  Cent.  R.  Co.     .     .     .  240 

Greenwood  v.  Greenwood    ...  363 

Griffiths  V.  Wolfram 245 

Grimm's  Estate 171,176 

Gmbb  V.  Bavard 797 

Gulf,  &c.  Ry.  Co.  V.  Brantford     .  240 

• V,  Donnelly   239,  240 

V.  Drew  ...  238 


452 
rentice 362 


Haack  v. 
Hagey  V. 


Fearing 


277 
374 


Harrison  v. 

HartweU  v.  Camman 421 

Harwood  v.  Benton 354 

Haskins  v.  Royster 356 

Hatch  V.  Kimball 392 

v»  Lane 2ol 

Haugh  V.  Blythe's  Exctrs.  ...  184 
Hawley  V.  N.  Y.,  &c.  R.  Co.    .    .    239 

Hayes  V.  People 167.176 

Heard  v,  James 876,  882 

Heblethwaite  v.  Hepworth  ...  174 
Henderson  t;.  Dale  Coal  Co.     .     .     280 

V.  Staniford  ....     366 

Herdic  ».  Young 882 

Hewitt  V,  Prime 363 

Hextr.  GiU 451 

Hiler  v.  People 172,176 

Hill  V.  Taylor 840 

Hilton  V.  Eari  of  Granville  ...    421 

Hinds  V.  Overacker 245 

Hoar  V.  Maine  Central  Railroad  Co.    276 

Hobbs  «.  Harlan 211 

Hodgson  17.  Field 452 

Hoffman  v.  New  York,  &c.  R.  Co.  277 
Holbrook  v.  Armstrong  ....  184 
Holden  v.  Fitchburg  R.  Co.     .     .     244 

Holmes  w.  Holmes 174 

Homer  0,  Watson 421 

Homketh  v.  Barr  ....  362, 363 
Hough  «7.  Railway  Co.  .  .  239,240 
Houston  17.  Texas  Central  R.  Co.  .  276 
Humphries  v.  Brogden    ....     420 

Hunt  V.  Hunt 392 

Hutchins  v,  Kimmell .  .  171.  172,  174 
Hynes  ».  McDermott      ....    169 


Indianapolis  &  St.  L.  Ry.  Co.  v. 

Watson 239 

Ingersol  v.  Mc Willie 174 

Illinois,  &c.  R.  &  C  Co.  v.  Ogle   .  882 
Illinois  Steel  Co.  v.  Mann    .     .     .  240 
International,  &c.  Ry.  Co.  v,  Ander- 
son       279 

Irwin  17.  Davidson 754 

Isaacs  V.  Third  Ave.  R.  Co.     .     .  278 

Isle  Royal  M.  Co.  v.  Hertin     .     .  883 


XX 


TABLE   OF  AM£BICAN   CASES. 


PA«B 

Jackson  v.  Winne 174 

James  v.  Johnson 391 

u.  Morey 391,392 

Jameson  v.  Hayward 391 

Jansen  v.  Grimshaw 365 

Jewell  V,  Jewell 174 

Job  V.  Patten 883 

Johnson  v.  Walker 211 

V.  Watson 184 

Jones  V.  Hardesty 184 

V.  Johnson 374 

w.  Sarchett 374 

».  Wagner 420,  421 

Judge  V.  Braswell 840 

Kaiser  v.  McLean 281 

Kansas  City,  &c.  R.  Co.  v.  Kelly .  282 

Keep  V.  Walsh 283 

Keith  «.  Wheeler 391 

Kellogg  V.  Ames 391 

V.  Clark 184 

Kennedy  v.  Shea 362 

Kenworthy  v.  Sawyer      ....  374 

Keyes  v.  Keyes 172 

Kidd  ».  Pill  &  M.  Co 211 

Kimball  v.  Cushman 282 

King  V.  N.  Y.  Central,  &c.  R.  Co.  278 

Kinney  v.  Laughenour    ....  362 

Kirk  V.  Atlanta,  &c.  R.  Co.      .     .  242 

Knight  V.  Ind.  Coal  Co 475 

Knowles  v.  Lawton 392 

Koch's  Appeal 835 

Kroy  r.  Chicago,  &c.  R.  Co.     .     .  239 

Lacy  V.  Getman 211 

Ladd  V,  New  Bedford  R.  Co.  .    .  239 

Lake  Shore,  &c.  R.  Co.  t;.  Brown  282 

Land  &  G.  Co.  v.  Commission  Co.  355 
Laning  v.  N.  Y.  Cent.  R.  Co.     241,  244 

Laucsv.  Bandon 365 

Lavery  v.  Cooke 262 

Lawlor  v.  Androscoggin  ....  241 
Lawyer  v.  Pritchie     .     .     .       356, 363 

Lehigh  Valley  Coal  Co.  v.  Jones  .  244 

Lenfers  v,  Henke 754 

Libhart  v.  Wood 211 

LilHb ridge  v.  Lackawanna  C  Co.  475 
Limpus  r.  Gen.  Omnibus  Co.  276,  279 
Little  Miami  R.  Co.  v.  Stevens    242,  278 

Little  Rock,  &c.  R.  Co.  v.  Barry  .  242 
Little  Rock  Traction  &  Elec.  Co.  v. 

Wakes 280 

Livingston  v.  Moingona  Coal  Co.  421 
Lockwood  V.  Barnes  .    •     .      184,  185 

V.  Sturdeyant      ...  390 

Londonderry  v,  Chester  ....  171 

Longfellow  v.  Quimby     .     .     .     .  878 

Louis ».  Schultz 279 


Louisyille,  &c.  R.  Co.  v.  Collins    •  244 

; V.  Stutts      .  240 

Lucke  V,  Clothing,  &c.  Assembly  .  356 

Lumley  ».  Gye 353,  354 

Lynch   v.  Metropolitan   Elevated 

Ry.  Co 277 

Lynn's  Appeal 732 

Lyon  V,  McUyaine 391 

McCadden  v.  Slauson      ....  366 

McClain  v.  Sullivan 391 

McClellan  ».  Sanford 184 

McClury ».  Dearbome    ....  279 

McCreery  v,  Davis 172 

McDonald  v.  Pranchere  ....  282 

McKinley  v.  Chicago,  &c.  Ry.  Co.  277 
McLaughUn's  Estate  .    .    .      171,174 

McLean  Coal  Co.  v.  Long   .     .    .  879 

McLean  County  Coal  Co.  v.  Lennon  882 

McMann  ».  Consolidated  T.  Co.  .  279 
McManus  r.  Crickett  .  .  276,  281,  282 
Madden's  Adm'r  v,  Chesapeake,  &c. 

Ry.  Co 242 

Mali  w.  Lord 280 

Mallory  v.  Hitchcock  ....  391 
Malone  v,  Hathaway  .     .     .      242,  245 

Manville  v.  Parks 840 

Marble  Co.  ».  Ripley 835 

Marcy  r.  Marcy 184 

Marion  v.  Chicago,  &c.  R.  Co.  278 

Marsh  v.  Cbickeriug 240 

Martin  v,  Payne 363 

Marvin  v,  Brewster  Iron  Co.  421,  451 
Mason  v.  Eldred      ....     365,  366 

Massott  v.  Moses 796 

Maye  t;.  Sappan 879 

Mayer  r.  Thompson  H.  B.  Co.       .  281 

Meade  ».  Chicago,  &c.  R.  Co.  .     .  282 

Meador  v.  Lake  Shore,  &c.  Ry.  C.  239 

Me^ginson  v.  Megginson      .     .     .  176 

Meister  t;.  Moore 172 

Merriam  v.  Barker 366 

Michigan,  &c.  Co.  v.  Deer  Lake  Co.  883 

Milford  V.  Worcester 172 

Mills  V,  Comstock 391 

V.  United  States     ....  176 

Missouri  P.  Co.  v.  Abend     ...  238 

Pac.  Ry.  Co  v.  Richmond  252 

Mitchell  V.  Crasswelles    .     .      282,  283 

r.  Robinson 244 

Moale  17.  Hollins    ....      365,  366 

Montague  v.  Garrett 185 

Moody  V.  Whitney 879 

Moon's  Adm'r  v.  Richmond,  &c.  Co.  242 

Moore  v.  Luce 391 

V.  Smaw 421 

Morrill  r.  Palmer 170 

Morris  v.  Brown 281 

Morse  v.  Huntington 374 


TABLE  OF  AMERICAN  CASES. 


XXI 


^01^  D.  Andrews 354 

MoneatJ   SU  -Pi,^,  &c.  Ry  Ck).    .  281 

^ouuWaCase       .       .      ....  797 

^\id\w «.  DobscUeixtz      .              .  374 

^vAWd.  PYiila,,  &c.  S.  Co.     .     .  244 
UwXV\^Mi  V.    l^ew    York,  &c.  Ry. 

^ 277,278,280 

U\vWe\i\i\  V.  Bates 282 

'i!L\]iTC\i «.  TViontas  'Wilson's  Sons  & 

Co 239 

U^ttaj  t).  So.  Car.  R.  Co.  .    .    .  241 


lsas^v\ae,  &c.  "R.  Co.  v.  Stames  .  277 

"Nee\t).liccl 754 

liew  Orleans,  &c  R.  Co.  ».  Harri- 
son   276, 279 

l^ew  Orleans  &   Northeastern  E. 

Co.  V.  Jopes 278 

Nickleson  v.  Striker 363 

Nieto  V.  Clark 278,  280 

Noflesville,  &c  Co.  v,  Qaose    .    .  277 
Noicev.  Brown      ....      355,363 

Nolan  p.  Lovelock 840 

North  &  Scott  0.  Miidge  &  Co.     .  365 

Northrap  v.  Knowles 176 

Offerman  v,  Starr 796 

O^bom  V.  Francis 362 

Ohio  &  R.  M.  Co.  V.  Early  ...  211 

Olcott  17.  Little 366 

Omaha,  &c.  R.  Co.  v.  Tabor    .    .  883 

Osbnm  v.  Moi^n      .....  245 

Owens  V,  Emery 732 

Palmeri  v,  Manhatten  Ry.  Co.    278,  280 

Park  17.  Barron 169, 172 

Parker  v.  Hannibal,  &c.  R.  Co.     .  243 

Parton  v.  Henry 172 

Passenger  R.  Co.  v.  Yonng  .     .    .  277 

Patterson  v,  Gaines 168 

V.  Pittsburgh,  &c.  R.  Co.  238 

Patton  17.  Philadelphia     ....  172 

Payne  v.  Western  &  A.  R.  Co. .    .  354 

Pearson  t7.  Hovey 172 

17.  Howey 167 

Peck  17.  Peck 171 

Penn  Co.  v.  Sears 239 

Penn.  R.  Co.  v.  Roney    ....  240 

People  V.  Harrison 365 

V.  Humphrey 176 

Percival  i7.  Nevill 211 

Perkins  17.  Clay 184 

-  17.  Pendleton 355 

Peters  p.  Lord 353 

Peterson  v.  Whitebreast  Mining  Co.  242 

Pbelon  9.  Stiles 283 

PhiL,  &c.  R.  Co.  V.  Derby   ...  279 


PAoa 

Pierce  v.  Benjamin 879 

17.  Estate  of  Paine    ...    184 

Pike  t7.  Pike 374 

Pittsburg,  &c.  Ry.  Co.  t7.  Shields  .    283 

Pledges  17.  Garrison 184 

Pool  17.  Morris 379 

Potier  V.  Barclay 172 

Port  17.  Port      ....  171, 172, 174 

Powell  17.  Deveny 279 

17.  Newell .211 

Powers  17.  Ware 211 

17.  l^Uey 882 

Pratt  17.  Bank  at  Bennington    .    .    379 

Priestley  17,  Fowler 241 

Pullman  Palace  Car  Co.  i7.  Lawrence    282 


Quinn  o.  Power 


277,  281,  283 


Railroad  Co.  t7.  Baugh     ....  242 

17.  Jopes 278 

17.  Kirk 283 

17.  Latham  ....  281 

17.  Randall  ....  283 

Ry.  Co.  17.  Hutchins  ....  878, 883 

Rake ».  Pope 184 

Rand  17.  Nutter 366 

Randall  v.  Baltimore  &  0.  R  Co.  241 

17.  Turner 184 

Raycroft  t7.  Tayntor 353 

Reading,  &c.  Co.  Appeal    .     .     .  171 

Redding  i7.  So.  Car.  R.  Co.      .     .  282 

Reed  17.  Reed 732 

Reinheimer  ».  Carter 184 

Rice  17.  Manley 355 

Richberger  i7.  "Am.  Ex.  Co.  .    .    .  281 
Ritchie  v.  Waller  ....      282,  283 

Robertson  i7.  Jones 879 

17.  State 175 

17.  Terre  Haute    ...  241 

Rockville  Nat.  Bank  v.  Holt    .    .  374 

Roddy  17.  Missouri  Pacific  Ry.  Co.  239 

Rogers  r.  Taylor 451 

Rose  17.  Clark 165 

Ross  17.  Scott 877 

RosweirsCase 176 

Rothenberger  i7.  North  W.  Co.     .  239 

Rounds  17.  Delaware,  &c.  R.  Co.  275, 

277,  278 

17.  Dehiware,  &c.  R.  Co.   .  282 

Roux  17.  Blodgett 239 

Rucker  t7.  Robinson 374 

Rudgeair  v.  Reading 281 


St.  Louis,  &c.  R.  Co.  17.  Irwin  .    .  239 

St.  Louis,  &c.  Ry.  Co.  v.  Weaver  .  242 
Santa  Clara  M.  Ass.  t7.  Quicksilver 

M.  Co 840 


yyn 


TABLE  OF  AMERICAN  GASES. 


Sajers  v.  Hoskinson 754 

Schmidt  v,  Mitchell 362 

Scioto  F.  B.  Co.  V.  Pond     ...  796 

Scott  V,  Colmesnil 365 

Searle  v.  Parke 278 

Seymour  v.  Greenwood    ....  283 

Shaver  v.  Ingham 212 

Shaw  V,  Waflace 754 

Shea  V.  Sixth  Ave.  R.  Co.    ...  277 

Sheehy  v.  Adasene 185 

V.  Mandeville 366 

Sherley  v.  Billings 277 

Shoemaker  v.  Acker 212 

Silsbarj  v.  McCoon    .    .    .      882, 883 

Simon  v.  State 172 

Simpson  t;.  Grayson 362 

Singer  ».  McCormick 211 

Sioux  City,  &c.  R.  Co.  v.  Rnlayson  240 

Skillman  v.  Lachman 840 

Skinner  v.  Pinney 883 

Slater  v.  Jewett 241 

Smalley  v.  Greene 184 

Smith  V.  Black 365,  366 

V.  Gonder «  882 

V,  Louisville  ft  N.  R*  Co.    .  281 

V.  Spitz 281 

Sneed  v,  Ewing 176 

i;.  Wiester 366 

Snow  17.  Fitchburg  R.  R.  Co.   .    .  283 

Snyder  v.  Bumham 840 

South  Royalton  Bank  v,  Suffolk 

Bank 353 

Squire  v.  State 176 

Stanton  v.  Thompson 391 

Staples  V.  Schmidt     ....  278,  280 

Starr  r.EUis 391 

V.  Peck 175 

State  r.  Bittrick 172, 174 

».  Bray 167 

V.  Britton 176 

».  Hodgskins 171 

V.  Hughs 176 

V.  Libby 176 

17.  McDonald 176 

17.  Parker 174 

17.  Patterson 172 

17.  Walker 171 

17.  Worthingham     .    .     .  171, 174 

V.  Wylde 176 

Steiuhauser  t7.  Spraul      ....  245 

Stephenson  v.  Duncan     ....  239 

17.  So.  Pac.  R.  Co.      .  282 

Stevenson  v,  Belknap      .    .    .     .  363 
Stewart  v,  Brooklyn  Crosstown  R. 

Co 277,280,282 

Stockbridge  Iron  Co.  v.  Cove  Iron 

Works. 878,883 

Stone  17.  HiU 283 

Stranahan  Bros.  Gartering  Co.  9. 

Coit 282 


Stratton  v.  Lyons 421 

Street  Railway  Co.  v.  Bolton    .     •  276 

Suggett's  Adm'r  v,  Cason's  Adm'r.  184 

Sutcliffe  V.  Atlantic  MiUs     .    .     .  185 

Sutton  V,  Huffman 363 

Suydam  17.  Barbar 365 

Swift  V.  Baruum 882 


Taylor  t7.  Georgia  M.  Co.     .    .     .     242 
17.  State 167 


Terre  Haute,  &c.  R.  Co.  t7.  Jackson  278 

Teter  v,  Teler 176 

Texas,  ftc,  R.  Co.  v.  Scoville  .     .  282 

Thompson  v.  Herman     ....  240 

Thorpe  v  Missouri  P.  Ry.  Co.     .  240 

Tibbetts  v.  Shapleigh      ....  366 

Tiemey  v,  Minneapolis    ....  242 

Tilden  t7.  Johnson 883 

Tiley  t7.  Moyers 774 

Treasurers  v.  Bates 366 


Ulrich  V.  Howes    .    . 
Union  Bank  t7.  Hodges 
United  States  t7.  Ames    . 

V.  Gratiot . 

17.  Lyman 


211 
366 
365 
774 
374 


Vanderbilt  v.  Richmond  Tump.  Co.     280 

Vauhom  r.  Freeman 363 

Van  Tuyl  r.  Van  Tuyl  .  .  168, 175 
Van  Winckle  t?.  Satterfield  ...  211 
Voorhees  t7.  Voorhees     ....     172 


Walker  i7.  Baxter 391 

».  Hannibal  &  St.  J.  R. 

R.  Co 281-283 

V.  Johnson 283 

Walton  17.  N.  Y.  Cent.  R.  Co.  .  .  281 
V.  N.  Y.  C.  Sleeping  Car 

Co 283 

Wann  v.  Bandow 365 

Ward  17.  Carson  River  Wood  Co.  .  878 

Warner  v.  Commonwealth    .    .     .  176 

Waters  v.  Stevenson    .    .  878,  879,  882 

Watson  17.  Dundee,  &c.  Co.      .     .  391 

V.  Owens 366 

Waugh  V.  Sliunk 211 

Wellman  v.  Miner 283 

Wetherbee  t7.  Green 883 

Weymouth  v.  Chicago  &  N.  Ry. 

Co 876,882 

17.  Northwestern  R.  Co.  878 

Whipple  17.  Parker 185 

White  V.  Murtland 362 

17.  Norfolk,  &c.  R.  Co.  .     .  281 

17.  Yawkey 883 


TA3I^K  OF  AMERICAN  CASES. 


YTin 


Wcrr.  Wendell  . 
%niore  v.  Jaj  .  . 
Me;  p.  Holmes  .  . 
film  9.  Churchill 

V.  Gibsoa     ,     * 

V,  Jonea  . 

V.  SUte  .     .     ' 

r P.Williams 

nilmsp.  Jess 

Wibont;.  Buell 

Wiltott.,.  mSScs^x  R. 
niflchester  w.  Craig 
Winkler  v.  Fisher? 


C5o 


.      366\Witbeck  V.  Waine 374 

-      242\Wolkev.  Fleming 184 

.      366\Wolvertouw.  State 176 

•      240  \  Woodman  r.  Joiner 276 

*21,  475  I  Woodenwai©  Co.  v.  United  States 
-      276 1  875,877 

.      176 \Wright  17.  Skinner.     .     .    .      882,883 

•      17l\WyaUo.  Bro^m 211 

•  .      365 \ 

•  •      242 1  ^[andesw.  Wright 421 

o««*      •     276  yohoD.McGovern 366 

876,  880,  883 

•  .      .     281 

•  -      .     211 1  Zinc  Co.  V.  Franklinite    ....  475 


RULING    OASES. 


MANORIAL  RIGHT.  .     , 

WESTERN  V.  BAILEY. 
(0.  A.  1896.) 

RULE. 

Where,  by  the  custom  of  a  manor,  the  lord  is  entitled, 
upon  the  death  of  a  copyhold  tenant,  to  his  best  beast  as  a 
heriot,  the  property  in  the  beast  (when  ascertained)  is  con- 
sidered as  having  vested  in  the  lord  upon  the  death  of  the 
tenant,  and  the  lord  is  entitled  to  seize  it  wherever  it  is 
found,  whether  within  the  ambit  of  the  manor  or  not. 

Weftem  y.  Bailey. 

66  L.  J.  Q.  B.  48-53  (a.  c.  1897, 1  Q.  B.  86;  75  L.  T.  470;  46  W.  R.  115). 

Copyhold.  —  Customary  Heriot --^  Bight  of  Lord  to  take  Heriot  outside  [48] 

Manor, 

Where,  apon  the  death  of  the  tenant  of  a  copyhold  tenement,  a  customary 
heriot  of  the  hest  beast  of  the  tenant  is  dae  to  the  lord  of  the  manor,  the  prop- 
erty in  the  beast  vests  in  the  lord  upon  the  death  of  the  tenant,  and  the  lord 
has  a  right  to  seize  it  wherever  it  be  foand,  whether  in  or  out  of  the  manor,  and 
■a  right  of  action  against  any  person  misappropriating  it. 

Appeal  on  the  part  of  the  defendants  from  the  judgment  of 
Wills,  J. ,  for  the  plaintiff,  at  the  trial  of  the  action  before  him 
without  a  jury  (65  L.  J.  Q.  B.  641 ;  [1896]  2  Q.  B.  234). 

The  plaintiff,  as  lord  of  the  manor  of  Mundon  Hall,  in  the 
county  of  Essex,  claimed  from  the  defendants,  as  executors  of  one 
Greorge  Christy,  a  deceased  copyhold  tenant  of  the  manor,  damages 
for  eloigning  two  heriots  of  the  best  beasts  of  the  tenant,  which 
accrued  due  to  the  plaintiff,  as  lord  of  the  manor,  on  the  tenant's 
<leatb. 

VOL.  XVII.  —  1 


MANORIAL  KI6HT. 


WMtem  y.  Bailey,  06  L.  J.  0.  B.  48,  40. 


By  an  admission  dated  July  2, 1879,  George  Christy  was  admitted 
tenant  of  certain  copyhold  hereditaments  of  the  plaintiff's  manor, 
including  two  parcels,  called.re^eutively  Scotts  and  Langmead, 

which  the  plaintiff:al\egfed  were  heriotable  tenements, 
[*49]         *  George   Ch'ri^y*  died   seised   of   these   tenements   on 
December  .i;'j;-,i894. 

The  plaintiff  •alleged  that  the  tenements  were  held  at  the  will  of 
the  lord  <?f  tlie  manor  by  the  tenure  of  paying  and  rendering  to  the 
lord 'a- i^lio't  in  respect  of  each  tenement  when  the  same  should 
happen,*  and  in  the  alternative  that  from  time  whereof  the  memory 
'•jof '  man  runneth  not  to  the  contrary  there  had  been  within  the 
*  manor  a  custom  that  the  lord  should  take  and  have  upon  the  death 
of  every  copyhold  tenant  dying  seised  of  a  customary  heriotable 
tenement  the  best  beast  of  the  tenant  for  a  heriot 

The  defendants  denied  that  the  tenements  were  heriotable,  and 
also  alleged,  as  the  fact  was,  that  George  Christy  had  not  at  the 
time  of  his  death  and  never  had  any  beasts  whatever  within 
the  manor.  George  Christy  died  possessed  of  beasts  without  the 
manor,  which  the  defendants  sold  without  any  notice  of  the  plain- 
tiff's claim.     The  best  beast  was  sold  for  £63. 

At  the  trial  of  the  action  Wills,  J. ,  held  that  Scotts  was  not 
a  heriotable  tenement,  but  that  Langmead  was  held  by  heriot 
service,  and  gave  judgment  for  the  plaintiff  for  £63. 

The  defendants  appealed. 

Elton,  Q.  C. ,  and  J.  C.  Earle,  for  the  appellants.  —  The  Judge 
was  wrong  in  holding  that  this  copyhold  tenement  was  held  by 
heriot  service,  since  heriot  service  is  only  applicable  to  freeholds, 
and  is  not  applicable  to  copyholds,  inasmuch  as  it  depends  upon  a 
special  reservation  in  a  grant  Scriven  (5th  ed.),  p.  257;  Black- 
stone's  Commentaries,  Book  II.  ch.  28;  Stephen's  Commenta- 
ries, Book  11.  Part  I.  ch.  22.  If  there  had  been  a  grant  and  a 
reservation  the  land  would  have  ceased  thereby  to  be  copyhold. 
Bracton  and  Fleta,  in  the  passages  cited  by  Wills,  J.,  in  his 
judgment,  — Bracton,  Book  II.  c.  36,  s.  9,  and  Fleta,  Book  III.  c. 
18,  —  are  not  speaking  of  heriot  service,  but  of  heriot  custom,  as 
appears  from  the  observation  of  Bracton :  "  Magis  fit  de  gratia 
quam  de  jure. "  It  may  be  that  there  is  a  custom  in  this  manor 
to  take  a  heriot,  that  being  for  the  plaintiff  to  prove,  but  there 
can  be  no  heriot  service.  See  Gilbert  on  Distress,  pp.  8  and  9. 
If,  therefore,  there  h^^  ^®®^  *  beast  on  the  tenant's  land,  or  a 


B.  a  VOL.  XVII.]  MANORIAL  RIGHT. 


Weftem  y.  Bailey,  06  L.  J.  0-  B.  40,  60. 


beast  which,  having  been  on  the  tenant's  land,  had  been  driven 
oflf  it  to  avoid  seizure,  the  lord  might  have  seized  it  by  heriot 
custom.  WoodlaTid  v.  Mantel  [1551],  Plowden,  94,  and  Viner's 
Abridgment,  vol.  xiv.  p.  298,  Heriot  (E).  But  a  custom  is  a 
custom  of  the  manor  only  and  local,  and  can  only  be  exercised 
within  the  manor,  except  where  the  heriot  has  been  driven  out  of 
it  to  avoid  seizure.  All  copyholds  were  in  their  origin  mere 
licenses  to  cultivate  land,  and  if  a  heriot  is  payable  in  respect  of  a 
copyhold  it  is  payable  by  custom  only. 

[Lord  EsHER,  M.  R  —  How  is  the  fact  that  the  heriot  custom 
does  not  apply  to  all  the  tenements  of  the  manor  tu  be  explained  ?] 

By  the  fact  that  in  many  cases  the  heriot  has  been  compounded 
for,  the  tenement  remaining  copyhold  in  other  respects.  The 
result  of  the  examination  of  the  case^  by  Wills,  J. ,  was  that  there 
is  no  case  in  which  the  seizure  of  a  heriot  has  been  justified  on 
the  ground  of  its  being  due  as  heriot  service  from  a  copyholder, 
although  there  are  many  cases  in  which  the  justification  has  been 
that  the  heriot  was  due  as  a  service  to  be  rendered  by  a  free  tenant 
of  the  manor,  and  many  in  which  it  has  been  alleged  to  be  due 
from  a  copyholder  by  the  custom  of  the  manor.  A  custom  of  a 
manor  to  seize  for  a  heriot  a  beast  which  had  never  been  within 
the  manor  would  be  imreasonable  and  bad. 

Bosanquet,  Q.  C. ,  and  Lyttelton,  for  the  respondent.  —  It  is 
immaterial  whether  the  heriot  is  due  by  heriot  service  or  heriot 
custom,  since  there  is  ample  authority  that,  even  if  it  be  due  by 
heriot  custom,  it  can  be  seized  outside  the  manor.  In  Parker  v. 
Gage  [1688],  1  Shower  K  B.  81,  Holt,  337,  it  was  held  in  terms 
by  Holt,  Ch.  J. ,  that  "  either  heriot  service  or  heriot  custom  is 
seizable  off  the  manor,  because  it  lies  en  prender,  *  See  also 
Atistin  v.  Bennet  [1692],  1  Salk.  355,  and  Garland  v.  Jekyll 
[1824],  2  Bing.  273,  2  J.  L.  (0.  S.)  C.  P.  227  (27  R  R  630). 
There  is,  on  the  contrary,  no  authority  for  the  appellants' 
*  suggestion  that,  if  there  is  a  custom,  the  heriot  is  seizable  [*  50] 
within  the  manor  only.  In  Scriven  on  Copyholds,  p.  255, 
it  is  stated  that  heriot  custom  may  be  seized  by  the  bailiff  or  other 
of&cer  of  the  manor  for  the  lord's  use  wherever  it  may  happen  to  be 
found,  whether  in  or  out  of  the  manor,  and  if  it  be  eloigned,  the 
lord  may  have  trover  or  detinue  for  it;  and  this  is  in  accordance 
with  the  cases  cited  and  with  Price  v.  Woodhouse  [1847],  1  Ex. 
559.     In  Watkins  on  Copyholds,  also,   vol.  2,  p.   163  (4th  ed. 


MANORIAL  RIGHT. 


Weftem  y.  Bailey,  06  L.  J.  a.  B.  60. 


1825),  it  is  said  that  it  appears  now  settled  that  the  lord  may 
seize  for  heriot  service  as  well  as  for  heriot  custom,  though  con- 
trary to  the  distinction  in  the  ancient  books ;  and,  as  the  property 
in  the  best  beast  or  good  becomes  vested  in  the  lord  on  the  death 
or  alienation  of  the  tenant,  he  may  seize  it  wherever  it  may  be 
found,  as  well  without  his  seigniory  as  within ;  and  that,  whether 
the  heriot  be  due  by  custom  or  as  a  service.  So  also  in  the  note 
in  Williams'  Saunders  to  Lanyon  v.  Carrie  [1667],  2  Wms.  Saund. 
168  b,  it  is  said  that  with  respect  to  a  heriot  due  by  the  custom  of 
a  manor,  as  the  property  of  it  vests  immediately  in  the  lord  on  the 
death  of  the  tenant,  the  lord  may  seize  it  in  any  place. 

Elton,  Q.  C. ,  in  reply. 

Lord  EsHER,  M.E.  — This  action  is  brought  in  a  somewhat 
unusual  form,  but  in  effect  the  plaintiff's  case  is  that  the  defend- 
ants, the  executors  of  George  Christy,  a  copyhold  tenant  of  the 
plaintiff's  manor,  have,  by  selling  two  of  the  tenant's  beasts,  pre- 
vented the  plaintiff,  as  lord  of  the  manor,  from  seizing  them  as 
heriots,  and  that  that  gives  the  plaintiff  a  right  of  action  against 
them  for  the  value  of  the  beasts.  Mr.  Justice  Wills,  at  the  trial 
of  the  action  before  him  without  a  jury,  held  that,  with  regard  to 
one  only  of  the  two  tenements  as  to  which  the  claim  was  made, 
the  lord  of  the  manor  was  entitled  to  seize  the  tenant's  best  beast 
for  a  heriot.  The  defendants  have  appealed  against  that  decision, 
and  allege  that  he  was  not  The  real  question  is  whether,  upon  the 
death  of  the  tenant  of  this  particular  copyhold  tenement  within 
the  manor,  the  lord  of  the  manor  had  the  right  to  seize  a  beast  of 
the  tenant  which  at  that  time  was  not  within  the  manor  at  all, 
but  was  outside  it.  It  seems  to  me  that  Mr.  Justice  Wills  has 
based  his  judgment  upon  the  ground  that,  although  it  was  not 
proved  that  by  the  custom  of  the  manor  the  lord  had  a  right  to 
seize  a  beast  upon  the  death  of  the  tenant  of  this  particular  tene- 
ment, yet  there  was  proof  from  which  he  could  infer  that  there 
was  originally  an  agreement  between  the  lord  of  the  manor  and 
the  copyholder  of  the  tenement  that  the  copyholder  and  his  suc- 
cessors should  be  liable  to  heriot,  and,  consequently,  that  the 
tenement  was  held,  not  by  a  customary  heriot,  but  by  heriot  ser- 
vice, in  which  case  the  lord  was  entitled  to  seize  his  beast  wher- 
ever it  might  be,  whether  within  or  without  the  manor. 

The  appellants  have  argued  that  the  tenement,  being  a  copy- 
hold tenement,  cannot  be  held  by  heriot  service,  but  that  if  it  can 


R.  a  VOL.  XVII.]  MANORIAL  BIGHT. 


Weftem  y.  Baitoy,  66  L.  J.  0.  B.  60,  01. 


be  proved  that  a  heriot  was  due  by  the  custom  of  the  manor,  such 
heriot  must  be  a  customary  heriot,  and,  being  a  customary  heriot, 
only  applies  to  beasts  within  the  manor  at  the  time  of  the  death 
of  the  tenant,  and  not  to  those  without,  and  therefore  this  beast 
could  not  have  been  seized.  To  that  argument  the  answer  of  the 
respondent's  counsel  is  that,  although  they  could  argue  that  the 
tenement  is  held  by  heriot  service,  and  that  the  heriot  is  not  a 
customary  heriot,  yet  accepting  the  appellants'  position  that  it  is 
a  customary  heriot,  they  dispute  the  conclusion  to  which  the 
appellants  leap  without  authority,  and,  indeed,  against  authority, 
that,  the  heriot  being  customary,  the  property  in  the  beast  did  not 
pass  to  the  lord  at  the  time  of  the  death  of  the  tenant,  because  at 
that  time  the  beast  was  not  on  the  manor.  Assuming,  they  say, 
the  heriot  to  be  a  customary  heriot,  the  property  in  the  beast 
passed  to  the  lord  on  the  death  of  the  tenant  just  as  it  would  pass 
on  heriot  service  if  it  stood  alone  without  there  being  any  manor, 
and  the  lord  had  the  right  to  seize  a  beast  which  was  off  the 
manor  at  the  time  of  the  death  of  the  tenant  If  that  be  so,  even 
though  Mr.  Justice  Wills  was  wrong  in  his  reasoning  upon  the 
question  which  he  decided,  his  conclusion  would  be  right  ' 
I  think  that  it  is  right  I  have  *  great  diflBculty  in  seeing  [*51] 
how  the  heriot  claimed  —  inasmuch  as  it  is  claimed  in 
respect  of  a  copyhold  tenement  —  can  be  proved  at  all  if  it  be  not 
proved  by  the  custom  of  the  manor.  My  present  opinion  is  that  it 
cannot  be  proved  except  by  the  custom  of  the  manor.  If  there  is 
evidence  that  the  heriot  has  been  payable  for  such  a  length  of  time 
that  it  is  right  to  assume  it  was  always  payable  from  time  im- 
memorial —  if  the  payment  went  on  so  long  as  to  become  a  custom, 
then  the  heriot  is  a  customary  heriot,  and  is  proved  by  the 
custom  of  the  manor,  and  there  is  no  necessity  to  go  outside  the 
custom.  Here  Mr.  Justice  Wills  held  that  as  to  this  tenement  a 
heriot  has  been  paid  so  long  that  it  is  right  to  assume  it  has  been 
paid  from  time  immemorial,  and  it  seems  to  me  that  the  proper 
inference  is  that  it  is  a  part  of  the  custom  of  this  manor  and  that 
it  is  a  customary  heriot  I  do  not,  therefore,  for  myself,  agree 
with  him  in  saying  that  it  is  not  a  customary  heriot,  but  that  the 
tenement  is  held  by  heriot  service ;  and  I  think  that  the  proper 
inference  is  that  it  is  a  customary  heriot  of  this  manor. 

Then  comes  the  question  whether,  the  heriot  being  a  customary 
heriot,  the  beast  could  be  seized  outside  the  manor.     I  think  there 


MAKOBIAL  BIGHT. 


Weftem  y.  BaUey,  66  L.  J.  a*  B.  01. 


i_ 


is  authority  to  show  that,  whether  the  heriot  is  a  customary  heriot 
or  due  by  heriot  service,  upon  the  happening  of  that  which  gives 
a  right  of  succession  to  the  tenement,  the  property  in  the  best 
beast  of  the  tenant,  as  soon  as  that  is  ascertained,  passes  at  once 
to  the  lord  of  the  manor.  It  is  not  necessary  that  he  should 
actually  seize  it  If  he  fixes  upon  it  by  description,  or  declares 
his  choice  in  any  clear  way  that  would  identify  the  beast,  then 
from  the  moment  of  the  inheritance  falling  the  beast  becomes  his 
beast,  although  he  does  not  seize  it ;  and  by  the  common  law  if  a 
beast  be  the  property  of  one  person  and  is,  against  his  will,  in  the 
possession  of  some  other  person,  to  whom  he  has  given  no  license, 
and  with  whom  he  has  no  relation,  the  owner  has  a  right  to  take 
it  wherever  it  is,  and  if  the  other  person  misappropriates  it  the 
owner  has  a  right  of  action  against  that  person. 

The  only  remaining  question  is  whether,  assuming  the  heriot  to 
be  a  customary  heriot,  the  property  in  the  beast  passes  so  that  the 
lord  can  seize  it  wherever  it  is.  It  is  a  question  of  authority,  as 
it  seems  to  me.  We  have  the  proposition  laid  down  in  distinct 
terms  in  Parker  v.  Gage^  both  in  Holt's  Reports  and  in  Shower's 
King's  Bench  Reports.  We  have  the  same  proposition  in  Watkins 
on  Copyholds  (vol.  ii.,  p.  163,  4th  ed.  1825),  and  we  have  it 
again  equally  clearly  laid  down  in  the  note  to  Lanyon  v.  Came  in 
Williams'  Saunders.  It  is  impossible  to  decide  the  question  con- 
trary to  these  authorities,  when  there  is  no  authority  for  the  con- 
trary proposition.  I  think,  therefore,  that  Mr.  Justice  Wills  was 
in  the  result  right  in  deciding  that  the  lord  of  the  manor  had 
the  right  to  seize  the  beast,  although  it  was  not  within  the  manor, 
and  that  the  appeal  must  be  dismissed. 

Lopes,  K  J.  —  I  think  that  the  question  which  we  have  to 
decide  is,  whether  the  lord  of  the  manor  was  justified  in  seizing 
this  beast  for  a  heriot  outside  his  manor.  It  seems  to  me  that 
there  are  two  kinds  of  heriots,  —  customary  heriots  and  heriots  due 
by  heriot  service.  Heriot  service  I  understand  to  be  founded  on 
a  reservation  in  a  lease  or  a  grant,  and  customary  heriots  upon  the 
custom  of  a  particular  manor.  During  the  course  of  the  case,  and 
in  the  judgment  of  Mr.  Justice  Wills,  the  question  has  arisen 
whether  or  not  heriot  service  can  attach  to  copyhold  tenure.  For 
the  purpose  of  fcljj^  /»ase  I  think  it  is  unnecessary  to  decide  it,  but, 
speaking  for  my^i^  I  am  unable  to  see  why  it  should  not  attach. 
If  the  receipt  of        ft  ^^  payment  is  proved  for  a  large  number  of 


1 


R.  C.  VOL.  XVn.]  MANORIAL  RIGHT. 


WMtern  y.  Bailey,  66  L.  J.  a.  B.  01,  02. 


years,  why  should  it  not  be  presumed  that  the  lord  of  the  manor, 
when  he  granted  out  the  lands  of  the  manor  to  different  persons, 
came  to  an  arrangement  with  some  of  the  villeins  that  a  certain 
specified  payment  should  be  made  ?  In  course  of  time  it  may  be 
that  this  payment  became  crystallised  into  a  custom,  but  I  cannot 
see  why  a  presumption  of  the  kind  should  not  be  made,  and  why 
the  legal  origin  of  it  may  not  be  attributed  to  heriot  service,  as 
Mr.  Justice  Wills  thought  But  it  is  unnecessary  for  the  purpose 
of  the  case  to  decide  the  question. 

•  It  is  now  admitted  by  the  appellants  that  the  heriot  is  [*  52] 
a  customary  heriot ;  and  the  question  is  whether,  in  the 
case  of  heriot  custom,  the  lord  can  seize  it  outside  the  manor.  To 
my  mind  there  is  abundant  authority  that  he  can.  Many  authori- 
ties have  been  cited.  I  will  not  attempt  to  deal  with  them  all, 
but  I  will  refer  to  Comyn's  Digest,  title  **  Copyhold,"  K.  25,  as 
to  heriot  custom,  and  how  it  shall  be  recovered  by  seizure.  It  is 
there  said  that  "  by  the  death  of  the  tenant  the  property  of  an 
heriot  custom  is  vested  in  the  lord  immediately,  and  therefore  the 
lord  may  seize  an  heriot  custom,  but  not  distrain  for  it,  and  he 
may  seize  in  any  place,  but  he  cannot  seize  the  beast  of  another.  * 
Then  in  Williams'  Saunders  Eeports,  in  the  note  to  Lanyon  v. 
Cariie,  I  find  it  said,  with  respect  to  a  heriot  due  by  the  custom 
of  a  manor,  that  "  as  the  property  of  it  vests  immediately  in  the 
lord  on  the  death  of  the  tenant,  or  on  an  alienation  by  him,  the 
lord  may  seize  it  in  any  place,  though  he  cannot  distrain  for  it " 
There  is  also  the  case  of  Parker  v.  Oage,  in  Holt's  Reports  and  in 
Shower's  Reports,  to  the  same  effect  There  is  therefore  abun- 
dance of  authority  upon  the  point,  and  I  think  therefore  that  the 
Court  is  justified  in  coming  to  the  conclusion  that  the  lord  was  in 
this  case  justified  in  seizing  a  beast  outside  the  manor  as  and  for 
heriot  custom. 

I  have  carefully  looked  at  the  different  pleas  that  have  been 
pleaded  in  cases  in  which  the  lord  has  had  to  justify  the  seizure  of 
a  heriot  custom,  and  I  do  not  find  in  any  one  of  those  pleas  any 
statement  that  the  seizure  took  place  within  the  manor.  I  come 
therefore  to  the  conclusion  that  the  decision  of  Mr.  Justice  Wills, 
although  it  may  be  that  he  did  not  arrive  at  it  by  the  same  reason- 
ing, is  correct,  and  ought  to  be  affirmed,  and  that  the  appeal  must 
be  dismissed. 

RiGBY,  L.  J.  —  The  real  question  we  have  to  decide  in  this  case 


MANOKIAL  KIGUT. 


Weftem  v.  Bailey  66  L.  J.  a.  B.  62,  68. 


is  whether  the  lord  of  the  manor  became  entitled  to  a  heriot  in 
respect  of  a  copyhold  hereditament  held  of  his  manor  upon  the 
death  of  a  tenant.  The  tenant  was  at  that  time  possessed  of  a 
beast  which,  as  I  understand,  had  never  been  upon  the  manor, 
and,  at  any  rate,  was  not  on  it  at  the  time  of  his  death.  At  the 
commencement  of  the  argument  a  very  difficult  question  was  raised 
by  the  appellants'  counsel  as  to  whether  heriot  service  could 
attach  upon  a  copyhold  in  a  manor.  If  I  had  to  decide  that  ques- 
tion I  should  not  be  prepared  to  say  that  it  was  possible.  Heriot 
service,  in  my  judgment,  is  due  to  a  reservation  in  a  grant,  and  I 
cannot  see  how  it  is  possible  to  get  back  to  such  an  origin  of  a 
heriot  in  the  case  of  a  copyhold.  It  is  the  custom  of  the  manor 
which  decides  all  the  rights  of  a  copyhold  tenant  of  the  manor. 
Apart  from  the  custom  of  the  manor,  he  is  a  tenant  at  will  and 
has  no  rights  at  all.  The  custom  must  be  proved  by  evidence  that 
it  has  existed  from  time  immemorial  —  from  time  which  is  outside 
legal  memory  —  and  there  must  be  nothing  to  the  contrary.  That 
being  so,  the  legal  conclusion  is  that  it  is  a  custom.  Now,  I  can- 
not see  how  it  is  possible  to  get  behind  the  time  of  legal  memory 
to  find  a  grant  or  a  reservation.  When  you  get  back  to  the  time 
of  legal  memory  you  find  that  a  custom  has  always  existed,  if  the 
case  be  so,  and  because  it  is  a  custom,  and  for  no  other  reason,  it 
regulates  the  rights  of  the  tenants  of  the  manor.  I  do  not  think 
that  we  can  go  behind  the  time  of  legal  memory  end  suggest  a 
grant,  because,  in  the  first  place,  I  do  not  think  that  there  is  any 
instance  of  such  a  presumption  arising  in  law ;  and,  secondly,  I  do 
not  think  that  it  is  consistent  with  the  relation  of  lord  and  copy- 
hold tenant,  whose  tenancy  is  still  a  tenancy  at  will  except  so  far 
as  it  has  been  made  better  by  custom. 

But  then  comes  a  further  question.  At  first  I  thought  that  one 
of  the  parties  denied  the  existence  of  a  heriot  custom ;  but  it  seems 
to  be  admitted  on  both  sides  that  there  is  a  custom  which  entitles 
the  lord  to  a  heriot  in  respect  of  one  tenement,  and  it  seems  further 
that  no  objection  can  be  taken  to  the  custom  on  the  ground  that  it 
does  not  extend  to  all  the  tenements  of  the  manor,  because  there  is 
also  a  custom  of  the  manor  to  accept  a  composition  for  the  pay- 
ment of  a  heriot,  which  then  upon  the  payment  of  a  composition 
ceases  to  be  payable.  It  being  then  an  admitted  fact  that 
[*  53]  a  legal  customary  heriot  is  payable  in  respect  of  this  *  tene- 
ment, it  is  suggested  by  the  appellants  that  because  the  cus- 


R.  C.  VOL.  XVII.]  MANOBIAL   RIGHT. 


Weftem  y.  Baitoj,  66  L.  J.  0.  B.  08.  —  Hotel. 


torn  is  a  castom  of  a  particular  manor,  it  must,  as  regards  all  its 
incidental  effects,  be  confined  within  the  ambit  of  the  manor ;  and 
—  for  this  is  the  important  point — that  the  lord  could  not  go  out- 
side the  manor  to  seize  his  beast  It  is  possible  that  there  might 
be  such  a  custom,  but  we  have  a  clear  and  binding  series  of  authori- 
ties in  law  that  as  a  general  rule  a  customary  heriot  vests  the 
property  in  the  beast  in  the  lord  upon  the  death  of  the  tenant  Of 
course,  if  the  tenant  has  more  beasts  than  the  lord  is  entitled  to 
seize,  the  lord  must  choose  the  beast  he  wishes  to  have ;  but  if  the 
lord  is  entitled  to  one  beast  only,  and  there  be  no  beast  but  one, 
no  act  of  the  lord  is  needed.  The  property  in  that  beast  vests  in 
the  lord  by  the  custom  upon  the  death  of  the  tenant  In  this  case 
it  is  not  disputed  that  the  beast,  the  value  of  which  is  claimed, 
was  the  best  beast  of  the  tenant,  and  in  accordance  with  the  gen- 
eral rule  that  would  vest  in  him  at  once.  A  custom  must  no 
doubt  be  limited  in  some  way  by  the  manor  itself.  You  cannot 
have  the  custom  of  a  manor  extending  to  hereditaments  outside 
the  manor,  but  there  is  nothing  illegal  —  in  fact,  it  seems  to  be  a 
general  rule  —  in  a  custom  which  vests  the  best  beast  of  a  tenant 
wherever  it  be  found,  provided  that  it  belongs  to  the  tenant,  in 
the  lord  of  the  manor. 

I  do  not  think  that  we  need  trouble  about  the  form  of  the 
action.  The  case  is  perfectly  simple.  If  the  beast  in  question 
was  seizable  outside  the  manor,  the  plaintiff  was  entitled  to  it,  or 
to  the  value  of  it  The  verdict,  therefore,  for  the  plaintiff  must 
be  supported,  although,  so  far  as  I  am  concerned,  upon  totally 
different  grounds  from  those  on  which  Mr.  Justice  Wills  based 
his  decision.  Appeal  dismissed, 

ENGLISH  NOTES. 

The  above  case  exemplifies  the  survival  in  England  of  perhaps  the 
oddest  of  manorial  customs.  Although  the  custom  more  frequently 
applies  to  copyhold  tenements,  a  heriot  may  be  due  by  custom  upon  the 
death  of  a  free  tenant  holding  an  estate  in  fee  simple.  Damerell  v. 
Protheroe  (1847),  10  Q.  B.  20,  16  L.  J.  Q.  B.  170,  11  Jur.  331. 

Where  a  copyhold  tenement,  held  by  heriot  custom,  becomes  the 
property  of  several  holders  as  tenants  in  common,  the  lord  is  entitled 
to  a  heriot  from  each  of  them;  but  if  the  several  portions  are  reunited 
in  one  person,  one  heriot  only  is  payable.  Garland  v.  Jekyll  (1824), 
2  Bing.  273,  2  L.  J.  (O.  S.)  C.  P.  227,  27  R.  R.  630;  Holloway  v. 
Berkeley  (1826),  6  B.  &  C.  2,  30  R.  R.  228. 


10  MARRIAGE. 


Ho.  1.  —  Dalrymple  y.  IHdrymple.  —  Bvle. 


The  right  to  take  a  heriot  on  the  death  of  a  tenant  does  not  hecome 
harred  hy  reason  of  neglect  to  seize  a  heriot  when  one  hecanie  due  on 
the  death  of  a  former  tenant.  Zouclie  (Lord)  v.  Dalbiac  (1875),  L.  E. 
10  Ex.  172,  44  L.  J.  Ex.  109,  33  L.  T.  221,  23  W.  E.  564. 

The  rights  belonging  to  a  manor  are  considered  as  one  with  it  and 
pass  by  a  grant  of  the  manor,  without  any  particular  words,  and  even 
without  express  mention  of  appurtenances.  Such  are  the  rights  to 
mines  and  minerals  in  the  lord's  waste.  Attorney- General  v.  Ewelme 
Hospital  (1853),  17  Beav.  366,  22  L.  J.  Ch.  846  An  advowson  or 
right  of  a  similar  nature,  appendant  to  a  manor,  will  pass  in  like  man- 
ner at  common  law,  by  the  grant  of  the  manor.  lb, ;  and  Wkistler^s 
Case,  10  Co.  Rep.  63  a.  But  by  the  statute  De  Prerogativd  Regis,  17 
Edw.  II.,  c.  15,  an  advowson  will  not  pass  by  the  King's  grant  of  a 
manor,  unless  expressly  mentioned. 


MARRIAGE. 


No.  1.  — DALRYMPLE  v,  DALRYMPLK 
(1811.) 

No.  2.  — REG.  V.  MILLIS. 
(H.  L.  1844.) 

RULE. 

According  to  the  canon  law  as  existing  before  the 
Council  of  Trent,  —  which  is  the  general  basis  of  the  law 
of  marriage  in  Christian  countries,  so  far  as  not  affected 
by  statute  or  custom  having  the  force  of  law  in  the  par- 
ticular country,  —  marriage  is  effected  by  the  consent  de 
prcBsenU  of  a  man  and  woman  to  their  exclusive  and  per- 
manent union  as  man  and  wife. 

In  England  it  has  been  decided  by  the  House  of  Lords  — 
on  an  equal  division  of  opinion  on  the  question  put  in  the 
negative  in  favour  of  a  prisoner  indicted  for  bigamy  — 
that  the  preseriQa  of  a  priest  (before  the  Reformation)  or 
(after  the  ^efop  ^tion)  of  a  person  in  holy  orders  was 
necessary  in  o^^         io  a  valid  marriage. 

V 


B.  a  VOL.  XVII.]  MARRUGE.  11 

Ho.  1.  —  Dalrymple  y.  IHdrymple,  8  BMgg.  Cooft.  64,  50. 

Dalrymple  y.  Dalrymple. 

2  Hagg.  Const.  54-137. 

Marriage.  —  Law  of  Scotland.  —  Lex  loci  actdts. 

Marriage  by  contract  without  religious  celebration,  according  to  the  law  [54] 
of  Scotland,  held  to  be  valid.     Distinction,  as  to  the  state  of  one  of  the 
parties  being  an  English  officer  on  service  in  that  country,  not  sustained. 

This  was  a  case  of  restitution  of  conjugal  rights,  brought  by  the 
wife  against  the  husband,  in  which  the  chief  point  in  discussion 
was,  the  validity  of  a  Scotch  marriage,  per  verba  de  prmsenti,  and 
without  religious  celebration :  one  of  the  parties  being  an  English 
gentleman,  not  otherwise  resident  in  Scotland  than  as  quartered 
with  his  regiment  in  that  country. 

Judgment. 

Sir  William  Scott.  —  The  facts  of  this  case,  which  I  shall 
enter  upon  without  preface,  are  these :  Mr.  John  William  Henry 
Dalrymple  is  the  son  of  a  Scotch  noble  family ;  I  find  no  direct 
evidence  which  fixes  his  birth  in  England,  but  he  is  proved  to 
have  been  brought  up  from  very  early  years  in  this  country.  At 
the  age  of  nineteen,  being  a  cornet  in  his  majesty's  dragoon  guards, 
he  went  with  his  regiment  to  Scotland  in  the  latter  end  of  March, 
or  beginning  of  April,  1804,  and  was  quartered  in  and  near  Edin- 
burgh during  his  residence  in  that  country.  Shortly  after  his 
arrival,  he  became  acquainted  with  Miss  Johanna  Gordon,  the 
daughter  of  a  gentleman  in  a  respectable  condition  of  life.  What 
her  age  was  does  not  directly  appear,  she  being  described  as  of  the 
age  of  twenty-one  years  and  upwards ;  she  was,  however,  young 
enough  to  excite  a  passion  in  his  breast,  and  it  appears  that  she 
made  him  a  return  of  her  affections :  he  visited  frequently 
at  her  father's  house  in  *  Edinburgh,  and  at  his  seat  in  the  [*  55] 
country,  at  a  place  called  Braid.  A  paper  without  date, 
marked  No.  1,  is  produced  by  her ;  it  contains  a  mutual  promise 
of  marriage,  and  is  superscribed,  "  a  sacreed  promise. "  A  second 
paper,  No.  2,  produced  by  her,  dated  May  28,  1804,  contains  a 
mutual  declaration  and  acknowledgment  of  a  marriage.  A  third 
paper,  No.  10,  produced  by  her,  dated  July  11,  1804,  contains  a 
renewed  declaration  of  marriage  made  by  him,  and  accompanied 
by  a  promise  of  acknowledging  her,  the  moment  he  has  it  in  his 
power;  and  an  engagement  on  her  part,  that  nothing  but  the 


12  MARBIAGE. 


Ho.  1.  —  Dalrymple  ▼.  Dalrymplo,  Z  Hagg.  Gonit  06,  M. 

greatest  necessity  shall  compel  her  to  publish  this  marriage. 
These  two  latter  papers  were  inclosed  in  an  envelope,  inscribed 
"  Sacreed  Promises  and  Engagements,  *  and  all  the  three  papers 
are  admitted,  or  proved  in  the  cause,  to  be  of  the  handwriting  of 
the  parties  whose  writing  they  purport  to  be. 

It  appears  that  Mr  Dalrymple  had  strong  reasons  for  supposing 
that  his  father  and  family  would  disapprove  of  this  connection, 
and  to  a  degree  that  might  seriously  affect  his  fortunes;  he, 
therefore,  in  his  letters  to  Miss  Gordon,  repeatedly  enjoined  this 
obligation  of  the  strictest  secrecy ;  and  she  observed  it,  even  to  the 
extent  of  making  no  communication  of  their  mutual  engagements 
to  her  father's  family ;  though  the  attachment,  and  the  intercourse 
founded  upon  it,  did  not  pass  unobserved  by  one  of  her  sisters, 
and  also  by  the  servants,  who  suspected  that  there  were  secret 
ties,  and  that  they  were  either  already,  or  soon  would  be  married. 
He  wrote  many  letters  to  her,  which  are  exhibited  in  the  cause, 
expressive  of  the  warmest  and  most  devoted  passion,  and  of  unal- 
terable fidelity  to  his  engagements,  in  almost  all  of  them 
[*  56]  applying  the  *  terms  of  husband  and  wife  to  himself  and 
her.  It  appears  that  they  were  in  the  habit  of  having 
clandestine  nocturnal  interviews,  both  at  Edinburgh  and  Braid,  to 
which  frequent  allusions  are  made  in  these  letters.  One  of  the 
most  remarkable  of  these  nocturnal  interviews,  passed  on  the  6th 
of  July  at  Edinburgh,  where  she  was  left  alone  with  two  or  three 
servants,  having  declined  to  accompany  her  father  and  family 
(much  to  her  father's  dissatisfaction)  to  his  country-house  at 
Braid.  There  is  proof  enough  to  establish  the  fact,  in  my  opinion, 
that  he  remained  with  her  the  whole  of  that  night  He  continued 
to  write  letters  of  a  passionate  and  even  conjugal  import,  and  to 
pay  nocturnal  and  clandestine  visits  during  the  whole  of  his  stay 
in  Scotland ;  but  there  was  no  cohabitation  of  a  more  visible  kind, 
nor  any  habit  and  repute,  as  far  as  appears  but  what  existed  in 
the  surmises  of  the  servants  and  of  the  sister.  His  stay  in  that 
country  was  shortened  by  his  father,  who  came  down,  alarmed,  as 
it  should  seem,  by  the  report  of  what  was  going  on,  and  removed 
him  to  England  on  or  about  the  21st  of  July. 

The  correspondence  appears  to  have  slackened,  though  the 
language  continued  equally  ardent,  if  I  judge  only  from  the  num- 
ber exhibited  of  the  letters  written  after  his  return ;  though  it  is 
possible,  and  inde^fj    ^^^y  probable,    there   may  be  many    more 


R.  C.  VOL.  XVII.]  MAEKIAGE.  13 

Vo.  1.  —  IHOrymple  y.  IHOrymple,  8  H!hv-  Cknwt.  56-58. 

which  are  not  exhibited.  No  letters  of  Miss  Gordon's,  addressed 
to  him,  axe  produced ;  he  has  not  produced  them,  and  she  has  not 
called  for  their  production.  In  England  he  continued  till  1805, 
when  he  sailed  for  Malta,  His  last  letter,  written  to  her  on  the 
eve  of  his  departure,  reinforces  his  injunctions  of  secrecy,  and 
conjures  her  to  withhold  all  credit  from  reports  that  might 
reach  her  *  of  any  transfer  of  his  aflfections  to  another ;  it  [*  57] 
likewise  points  out  a  channel  for  their  future  correspond- 
ence, through  the  instrumentality  of  Sir  Eupert  George,  the 
First  Commissioner  of  the  Board  of  Transports.  He  continued 
abroad  till  May,  1808,  with  the  exception  of  a  month  or  two  in 
the  autumn  of  1806,  when  he  returned  for  a  purpose  unconnected 
with  this  history,  unknown  to  his  father,  and,  as  it  appears,  to 
this  lady.  It  is  upon  this  occasion  that  the  alteration  of  his 
affection  first  discloses  itself  in  conversations  with  a  Mr.  Hawkins, 
a  friend  of  his  family,  to  whom  he  gives  some  account  of  the 
connection  which  he  had  formed  with  Miss  Gordon  in  Scotland, 
complains  of  the  consequences  of  it,  in  being  tormented  with 
letters  from  her,  which  he  was  resolved  never  to  read  in  future ; 
and  having  reason  to  fear  she  would  write  others  to  his  father,  he 
requested  Mr.  Hawkins  to  use  all  means  of  intercepting  any 
letters  which  she  might  write  either  to  the  one  or  the  other. 

Mr.  Hawkins  executed  this  commission  by  intercepting  many 
letters  so  addressed,  though,  in  consequence  of  her  extreme  impor^ 
tunity,  he  forwarded  two  or  three,  as  he  believes,  of  those  addressed 
to  Mr.  Dalrymple ;  and  he  at  length  wrote  to  her  himself,  about 
the  end  of  1806,  or  beginning  of  1807,  and  strongly  urged  her  to 
desist  from  troubling  General  Dalrymple  with  letters.  This  led 
to  a  correspondence  between  her  and  Mr.  Hawkins;  and  it  was 
not  till  the  death  of  Mr.  Dalrymple's  father  (which  happened  in 
the  spring  of  the  year  1807)  that  she  then  asserted  her  marriage 
rights,  and  furnished  him  with  copies  of  these  important  papers, 
which  she  denominates,  according  to  the  style  of  the  law  of  Scot- 
land, her  "  Marriage  Lines.  *  She  took  no  steps  to  enforce 
*  her  rights  by  any  process  of  law.  Upon  the  unlooked-for  [•  58] 
return  of  Mr.  Dalrymple,  in  the  latter  end  of  May,  1808, 
he  immediately  visited  Mr.  Hawkins,  who  communicated  what 
had  passed  by  letter  between  himself  and  Miss  Gordon ;  and  suffered 
him,  though  not  without  reluctance,  to  possess  himself  of  two  of 
her  letters,  which  Mr.  Darlymple  has  exhibited.     Mr.  Hawkins 


14  MABRIAGE. 

Ho.  1.  —  Dalzymple  ▼.  Dalzymple,  2  Hagg.  Conit.  68,  69. 

however  dismissed  him  with  the  most  anxious  advice  to  adhere  to 
the  connection  he  had  formed ;  and  by  no  means  to  attempt  to 
involve  any  other  female  in  the  misery  that  must  attend  any  new 
matrimonial  connection.  Within  a  very  few  days  afterwards, 
Mr.  Dalrymple  marries  Miss  Laura  Manners,  in  the  most  formal 
and  regular  manner.  Miss  Gordon,  who  had  before  heard  some 
reports  of  no  very  definite  nature,  instantly,  upon  hearing  au- 
thentic news  of  this  event,  takes  measures  for  enforcing  her  rights ; 
and  being  informed  that  he  is  amenable  only  to  this  jurisdiction, 
she  immediately  applies  for  its  aid,  to  enforce  the  performance  of 
what  she  considers  as  a  marriage  contract. 

The  cause  has  proceeded  regularly  on  both  sides,  and  has  been 
instructed  with  a  large  mass  of  evidence,  much  of  it  replete  with 
legal  erudition,  for  which  the  Court  has  to  acknowledge  great 
obligations  to  the  gentlemen  who  have  been  examined  in  Scot- 
land. It  has  also  been  argued  with  great  industry  and  ability  by 
the   counsel  on  both  sides,  and  now  stands  for  final  judgment 

Being  entertained  in  an  English  Court,  it  must  be  adjudi- 
[*  59]  cated  according  to  the  principles  of  English  law  *  applicable 

to  such  a  case.  But  the  only  principle  applicable  to  such  a 
case  by  the  law  of  England  is,  that  the  validity  of  Miss  Gordon's 
marriage  rights  must  be  tried  by  reference  to  the  law  of  the 
country  where,  if  they  exist  at  all,  they  had  their  origin.  Hav- 
ing furnished  this  principle,  the  law  of  England  withdraws 
altogether,  and  leaves  the  legal  question  to  the  exclusive  judgment 
of  the  law  of  Scotland. 

I  am  not  aware  that  the  case  so  brought  here  is  exposed  to  any 
serious  disadvantage,  beyond  that  which  it  must  unavoidably 
sustain  in  the  inferior  qualifications  of  the  person  who  has  to 
decide  upon  it,  to  the  talents  of  the  eminent  men,  to  whose  judg- 
ment it  would  have  been  submitted,  in  its  more  natural  forum. 
The  law-learning  of  Scotland  has  been  copiously  transmitted ;  the 
facts  of  the  case  are  examinable  on  principles  common  to  the  law 
of  both  countries,  and  indeed  to  all  systems  of  law.  It  is  described 
as  an  advantage  lost,  that  Miss  Manners,  the  lady  of  the  second 
marriage,  is  not  here  made  a  party  to  the  suit ;  she  might  have 
been  so  in  point  of  form,  if  she  had  chosen  to  intervene ;  in  sub- 
stance she  is ;  for  her  marriage  is  distinctly  pleaded  and  proved, 
and  is  as  much  therefore  under  the  eye,  and  under  the  attention, 
and  under  the  PTot^nf-ioXX  of  the  Court,  as  if  she  were  formally  a 


B.  C.  VOL.  XVII.]  MARRUGB.  15 

Ho.  1. — Dalzymple  y.  Dalrymple,  2  Hagg.  Conit.  69-61. 

party  to  the  question  respecting  the  validity  of  this  marriage, 
which  is  in  effect  to  decide  upon  the  validity  of  her  own.  For  I 
take  it  to  be  a  position  beyond  the  reach  of  all  argument  and  con- 
tradiction, that  if  the  Scotch  marriage  be  legally  good,  the  second 
or  English  marriage  must  be  legally  bad.  Another  advantage 
intimated  to  be  lost  is  this,  that  the  native  forum 
*  would  have  compelled  the  production  of  her  letters  to  him,  [*  60] 
for  the  purpose  of  seeing  whether  anything  in  them  favoured 
his  interpretation  of  the  transaction.  Surely,  according  to  any 
mode  of  proceeding,  there  can  be  no  need  of  a  compulsory  process 
to  extract  them  from  the  person  in  whose  possession  they  must 
be,  if  they  exist  at  all.  If  they  contain  such  matter  as  would 
favour  such  an  interpretation,  he  must  be  eager  to  produce  them, 
for  they  would  constitute  his  defence;  not  being  produced,  the 
necessary  conclusion  is,  either  that  they  do  not  exist,  or  that  they 
contain  nothing  which  he  could  use  with  any  advantage  for  such 
a  purpose.  The  considerations  that  apply  to  the  indiscretions  of 
youth,  to  the  habits  of  a  military  profession,  and  to  the  ignorance 
of  the  law  of  Scotland,  arising  from  a  foreign  birth  and  education, 
are  common  to  both,  and,  I  might  say,  to  all  systems  of  law.  They 
are  circumstances  which  are  not  to  be  left  entirely  out  of  the  con- 
sideration of  the  Court,  in  weighing  the  evidence  for  the  estab- 
lishment of  the  facts,  but  have  no  powerful  effect  upon  the  legal 
nature  of  the  transaction  when  established. 

The  law  which,  in  both  countries,  allows  the  minor  to  marry, 
attributes  to  him,  in  a  way  which  cannot  be  legally  averred 
against,  upon  the  mere  ground  of  youth  and  inexperience,  a  com- 
petent discretion  to  dispose  of  himself  in  marriage ;  he  is  arrived 
at  years  of  discretion,  quoad  hoc,  whatever  he  may  be  with  respect 
to  other  transactions  of  life,  and  he  cannot  be  heard  to  plead  the 
indiscretion  of  minority.  Still  less  can  the  habits  of  a  particular 
profession  exonerate  a  man  from  the  general  obligations  of  law. 
And  with  respect  to  any  ignorance  arising  from  foreign 
birth  and  education,  *  it  is  an  indispensable  rule  of  law,  as  [*  61] 
exercised  in  all  civilized  countries,  that  a  man  who  con- 
tracts in  a  country,  engages  for  a  competent  knowledge  of  the  law 
of  contracts  in  that  coimtry.  If  he  rashly  presumes  to  contract 
without  such  knowledge,  he  must  take  the  inconveniences  result- 
ing from  such  ignorance  upon  himself,  and  not  attempt  to  throw 
them  upon  the  other  party,  who  has  engaged  under  a  proper  knowl- 


16  MABRIAGE. 

Ho.  1.  —  Dalrymple  y.  Dalxymple,  2  Hagg.  Conit.  61,  68. 

edge,  and  sense  of  the  obligation,  which  the  law  would  impose 
upon  him  by  virtue  of  that  engagement  According  to  the  judg- 
ment of  all  the  learned  gentlemen  who  have  been  examined,  the 
law  of  Scotland  binds  Mr.  Dalrymple,  though  a  minor,  a  soldier, 
and  a  foreigner,  as  effectively  as  it  would  do  if  he  had  been  an 
adult,  living  in  a  civil  capacity,  and  with  an  established  domicil 
in  that  country. 

The  marriage,  which  is  pleaded  to  be  constituted,  by  virtue  of 
some  or  all  of  the  facts,  of  which  I  have  just  given  the  outline, 
and  to  which  I  shall  have  occasion  more  particularly  to  advert  in 
the  course  of  my  judgment,  has  been  in  the  argument  described  as 
a  clandestine  and  irregular  marriage.  It  is  certainly  a  private 
transaction  between  the  individuals,  but  it  does  not  of  course  fol- 
low that  it  is  to  be  considered  as  a  clandestine  transaction,  in  any 
ignominious  meaning  of  the  word ;  for  it  may  be  that  the  law  of 
the  country  in  which  the  transaction  took  place  may  contemplate 
private  marriages,  with  as  much  countenance  and  favour  as  it 
does  the  most  public.  It  depends  likewise  entirely  upon  the 
law  of  the  country,  whether  it  is  justly  to  be  styled  an  irregular 
marriage.  In  some  countries  one  only  form  of  contracting  mar- 
riage is  acknowledged,  as  in  our  own,  with  the  exception 
[♦62]  *of  particular  indulgences  to  persons  of  certain  religious 
persuasions;  saving  those  exceptions,  all  marriages  not 
celebrated  according  to  the  prescribed  form  are  mere  nullities; 
there  is  and  can  be  no  such  thing  in  this  country  as  an  irregular 
marriage.  In  some  other  countries,  all  modes  of  exchanging  con- 
sent being  equally  legal,  all  marriages  are  on  that  account  equally 
regular.  In  other  countries,  a  form  is  recommended  and  sanctioned, 
but  with  a  toleration  and  acknowledgment  of  other  more  private 
modes  of  efifecting  the  same  purpose,  though  under  some  dis- 
countenance of  the  law,  on  account  of  the  non-conformity  to  the 
order  that  is  established.  What  is  the  law  of  Scotland  upon  this 
point  ? 

Marriage,  being  a  contract,  is  of  course  consensual  (as  is  much 
insisted  on,  I  observe,  by  some  of  the  learned  advocates),  for  it  is 
of  the  essence  of  all  contracts,  to  be  constituted  by  the  consent  of 
parties.  Consensus  non  concubitus  facit  matrimonium,  the  maxim 
of  the  Eoman  civil  law,  is,  in  truth,  the  maxim  of  all  law  upon 
the  subject ;  for  the  concubitus  may  take  place,  for  the  mere  grati- 
fication of  present  appetite,  without  a  view  to  anything  further; 


R.  G.  VOL.  XVIL]  MABRIAGE.  17 

Ho.  1.  —  Dalxympl^^TT  DalzymplA,  2  Hagg.  Goaft  6S,  64. 

bat  a  marriage  must  be  sometbing  *  more :  it  must  be  an  [*  63] 
agreement  of  tbe  parties  looking  to  tbe  eonsortium  vitcc;  an 
agreement  indeed  of  parties  capable  of  the  eoncubittut,  for  though 
the  coneubUiis  itself  will  not  constitute  marriage,  yet  it  is  so  far 
one  of  the  essential  duties,  for  which  the  parties  stipulate,  that 
the  incapacity  of  either  party  to  satisfy  that  duty  nullifies  the 
contract  Marriage,  in  its  origin,  is  a  contract  of  natural  law; 
it  may  exist  between  two  individuals  of  different  sexes,  although 
no  third  person  existed  in  the  world,  as  happened  in  the  case  of 
the  common  ancestors  of  mankind.  It  is  the  parent,  not  the  child, 
of  civil  society,  "  Principium  urbis  et  quasi  seminarium  reipub- 
licse.  •  Cic.  de  Off.  1,  17.  In  civil  society  it  becomes  a  civil 
contract,  regulated  and  prescribed  by  law,  and  endowed  with  civil 
consequences.  In  most  civilised  countries  acting  under  a  sense  of 
the  force  of  sacred  obligations,  it  has  had  the  sanctions  of  religion 
superadded.  It  then  becomes  a  religious,  as  well  as  a  natural  and 
civil  contract ;  for  it  is  a  great  mistake  to  suppose  that,  because 
it  is  the  one,  therefore  it  may  not  likewise  be  the  other.  Heaven 
itself  is  made  a  party  to  the  contract,  and  the  consent  of  the  indi- 
viduals, pledged  to  each  otiier,  is  ratified  and  consecrated  by  a 
vow  to  God.  It  was  natural  enough  that  such  a  contract  should, 
under  the  religious  system  which  prevailed  in  Europe,  fall  under 
ecclesiastical  notice  and  cognisance,  with  respect  both  to  its 
theological  and  its  legal  constitution;  though  it  is  not 
*  unworthy  of  remark  that,  amidst  the  manifold  ritual  [*64] 
provisions  made  by  the  Divine  Lawgiver  of  the  Jews  for 
various  offiees  and  transactions  of  life,  there  is  no  ceremony  pre- 
scribed for  the  celebration  of  marriaga  In  the  Christian  church 
marriage  was  elevated  in  a  later  age  to  the  dignity  of  a  sacrament, 
in  consequence  of  its  divine  institution,  and  of  some  expressions 
of  high  and  mysterious  import  respecting  it  contained  in  the 
sacred  writings.  The  law  of  the  Church,  the  canon  law  (a  system 
which,  in  spite  of  its  absurd  pretensions  to  a  higher  origin,  is  in 
many  of  its  provisions  deeply  enough  founded  in  the  wisdom  of 
man),  although,  in  conformity  to  the  prevailing  theological 
opinion,  it  reverenced  marriage  as  a  sacrament,  still  so  far  re- 
spected its  natural  and  civil  origin,  as  to  consider,  that  where  the 
natural  and  civil  contract  was  formed,  it  had  the  full  essence  of 
matrimony  without  the  intervention  of  the  priest.  It  had  even  in 
that  state  the  character  of  a  sacrament ;  for  it  is  a  misapprehen- 

VOL.  XVII.  —  2 


18  MABBIA6E. 


Ho.  1.  —  Dalxympto  ▼.  DalxymplA,  ft  Hagg.  Oonit  6i-M 

sion  to  suppose  that  this  intervention  was  required  as  matter  of 
necessity,  even  for  that  purpose,  before  the  Council  of  Trent  It 
appears  from  the  histories  of  that  council,  as  well  as  from  many 
other  authorities,  that  this  was  the  state  of  the  earlier  law,  till 

that  council  passed  its  decree  for  the  reformation  of  mar- 
[*65]  riage.     The  consent  of  two  parties  *  expressed  in  words  of 

present  mutual  acceptance,  constituted  an  actual  and  legal 
marriage,  technically  known  by  the  name  of  Sponsalia  per  verba 
de  prcesenti  improperly  enough,  because  aponaalia,  in  the  original 
and  classical  meaning  of  the  word,  are  preliminary  ceremonials  of 
marriage,  and  therefore  Brower  justly  observes,  Jv^  pontificium 
nimis  laxo  signijicatu,  imo  eti/mologid  invitd  ipsas  nuptias  spansalia 
appellavit.  The  expression,  however,  was  constantly  used  in 
succeeding  times  to  signify  clandestine  marriages,  that  is,  mar- 
riages unattended  by  the  prescribed  ecclesiastical  solemnities,  in 
opposition,  first,  to  regular  marriages;  secondly,  to  mere  engage- 
ments for  a  future  marriage,  which  were  termed  sponsalia  per 
verba  defuturo,  a  distinction  of  sponsalia  not  at  all  known  to  the 
Eoman  civil  law.  Different  rules,  relative  to  their  respective 
effects  in  point  of  legal  consequence,  applied  to  these  three  cases, 
—  of  regular  marriages,  of  irregular  marriages,  and  of  mere  promises 
or  engagements.  In  the  regular  marriage  everything  was  pre- 
sumed to  be  complete  and  consummated  both  in  substance  and  in 
ceremony.  In  the  irregular  marriage  everything  was  presumed  to 
be  complete  and  consummated  in  substance  but  not  in  ceremony ; 
and  the  ceremony  was  enjoined  to  be  undergone  as  matter  of  order. 
In  the  promise,  or  sponsalia  de  futuro,  nothing  was  presumed  to 
be  complete  or  consummate  either  in  substance   or  ceremony. 

Mutual  consent  would  release  the  parties  from  their  en- 
[*  66]   gagement ;  and  *  one  party,  without  the  consent  of  the  other, 

might  contract  a  valid  marriage,  regularly  or  irregularly, 
with  another  person ;  but  if  the  parties  who  had  exchanged  the 
promise  had  carnal  intercourse  with  each  other,  the  effect  of  that 
carnal  intercourse  was  to  interpose  a  presumption  of  present  con- 
sent at  the  time  of  the  intercourse,  to  convert  the  engagement  into 
an  irregular  marriage,  and  to  produce  all  the  consequences  attribu- 
table to  that  species  of  matrimonial  connection.  I  spare  myself 
the  trouble  of  citing  from  the  text-books  of  the  canon  law  the 
passages  that  support  these  assertions.  Several  of  them  have  been 
cited  in  the  course  of  this  discussion,  and  they  all  lie  open  to 


B.  C.  VOL.  XVII.]  MARRIAGE.  19 

Ho.  1.  —  Dalxympto  t.  Dalxymple,  2  Hagg.  Oooft  66-68^ 

obvious  reference  in  Brower  and  Swinbum,  and  other  books  that 
profess  to  treat  upon  these  subjects.  The  reason  of  these  rules  is 
manifest  enough.  In  proceedings  under  the  canon  law,  though  it 
is  usual  to  plead  consummation,  it  is  not  necessary  to  prove  it, 
because  it  is  always  to  be  presumed  in  parties  not  shown  to  be  dis- 
abled by  original  infirmity  of  body.  In  the  case  of  a  marriage 
per  verba  de  prcesenti,  the  parties  there  also  deliberately  accepted 
the  relation  of  husband  and  wife,  and  consummation  was  presumed 
as  naturally  following  the  acceptance  of  that  relation,  unless  con- 
troverted in  like  manner.  But  a  promise  per  verba  de  fiUuro 
looked  to  a '  f  nturo  time ;  the  marriage  which  it  contemplated 
might  perhaps  never  take  place.  It  was  defeasible  in 
various  ways ;  *  and,  theroforo,  consummation  was  not  to  be  [*  67] 
presumed;  it  must  either  have  been  proved  or  admitted. 
Till  that  was  done,  the  relation  of  husband  and  wife  was  not  con- 
tracted ;  it  must  be  a  promise  cum  copula  that  implied  a  present 
acceptance,  and  created  a  valid  contract  founded  upon  it 

Such  was  the  state  of  the  canon  law,  the  known  basis  of  the 
matrimonial  law  of  Europe.  At  the  Beformation,  this  country 
disclaimed,  amongst  other  opinions  of  the  Bomish  Church,  the 
doctrine  of  a  sacrament  in  marriage,  though  still  retaining  the 
idea  of  its  being  of  divine  institution  in  its  general  origin ;  and 
on  that  account,  as  well  as  of  the  religious  forms  that  were  pre- 
scribed for  its  rogular  celebration,  an  holy  estate,  holy  matri- 
mony, but  it  likewise  retained  those  rules  of  the  canon  law 
which  had  their  foundation  not  in  the  sacrament,  or  in  any 
religious  view  of  the  subject,  but  in  the  natural  and  civil  contract 
of  marriage.  The  Ecclesiastical  Courts,  therefore,  which  had  the 
cognisance  of  matrimonial  causes,  enforced  these  rules,  and 
amongst  others,  that  rule  which  held  an  irrogular  marriage,  con- 
stituted per  verba  de  prceeenti,  not  followed  by  any  consummation 
shown,  valid  to  the  full  extent  of  voiding  a  subsequent  regular 
marriage  contracted  with  another  person.  A  statute  passed  in  the 
leign  of  Henry  VIIL  (32  Hen.  VIII. ,  cap.  38,  s.  2)  proves  the 
fact  by  reciting,  that  "  Many  persons  after  long  continuance  in 
matrimony,  without  any  allegation  of  either  of  the  parties,  or  any 
other  at  their  marriage,  why  the  same  matrimony  should 
not  be  good,  just,  and  *  lawful,  and  after  the  same  matri-  [*  68] 
mony  solemnised,  and  consummate  by  carnal  knowledge, 
have  by  an  unjust  law  of  the  Bishop  of  Bome,  upon  pretence  of  a 


20  MARRIAGE. 


Ho.  1.  — Dalxympto  y.  Oalzymple,  2  Hagg.  Ckmit  69,  89. 

former  contract  made,  and  not  consummate  by  carnal  copulation, 
been  divorced  and  separate,  *  and  then  enacts,  "  that  marriages 
solemnised  in  the  face  of  the  Church,  and  consummate  with  bodily 
knowledge,  shall  be  deemed  good,  notwithstanding  any  pre-con- 
tract of  matrimony,  not  consummate  with  bodily  knowledge, 
which  either  or  both  the  parties  shall  have  made."  But  this 
statute  was  afterwards  repealed,  as  having  produced  horrible  mis- 
chiefs, which  are  enumerated  in  very  declamatory  language  in  the 
preamble  of  the  statute  2  Edw.  VL  ;  and  Swinburn,  speaking  the 
prevailing  opinion  of  his  time,  applauds  the  repeal  as  worthily 
and  in  good  reason  enacted.  The  same  doctrine  is  recognised  by 
the  temporal  Courts  as  the  existing  rule  of  the  matrimonial  law  of 
this  country,  in  Bunting's  Case,  4  Coke,  29.  **  John  Bunting, 
father  of  the  plaintiflf,  and  Agnes  Adenshall,  contracted  marriage 
per  verba  de  prcesenti,  and  afterwards,  on  the  10th  of  December, 
1555,  the  said  Agnes  took  to  husband  Thomas  Twede ;  and  after- 
wards, on  the  9th  of  July,  Bunting  libelled  against  her  in  the 
Court  of  Audience,  et  decret  ftdt  qiu)d  prcedict  Agnes  subiret 
matrimonium  cum  prsefato  Bunting,  et  insuper  pronunciatum  fuit 
dictum  matrimonium  fore  nullum. "  Though  the  common  law  cer- 
tainly had  scruples  in  applying  the  civil  rights  of  dower, 
[*  69]  *  and  community  of  goods,  and  legitimacy  in  the  cases  of 
these  looser  species  of  marriage.  In  the  later  case  of 
Collins  and  Jesson,  3  Anne,  it  was  said  by  Holt,  Chief  Justice, 
and  agreed  to  by  the  whole  Bench,  that  **  if  a  contract  be  per  verba 
de  prcesenti,  it  amounts  to  an  actual  marriage,  which  the  very 
parties  themselves  cannot  dissolve  by  release  or  other  mutual 
agreement,  for  it  is  as  much  a  marriage  in  the  sight  of  God,  as  if 
it  had  been  in  facie  ecclesice. "  "  But  a  contract  per  verba  de  future, 
which  do  not  intimate  an  actual  marriage,  but  refer  to  a  future 
act,  is  releasable. "  2  Salk.  437 ;  Mod.  155.  In  Wigmore*s  Case, 
2  Salk.  438,  the  same  Judge  said,  **  A  contract  per  verba  de  prcesenti 
is  a  marriage ;  so  is  a  contract  de  futuro ;  if  the  contract  be  exe- 
cuted, and  he  take  her,  't  is  a  marriage,  and  they  cannot  punish  for 
fornication.*  In  the  Ecclesiastical  Court  the  stream  ran  uni- 
formly in  that  course.  One  of  the  most  remarkable  is  that  fur- 
nished by  the  diligence  of  Dr.  Swabey,  on  account  of  its  striking 
resemblance  to  the  present  case  —  I  mean  the  case  of  Lord  Fitz- 
maurice,  son  of  the  Earl  of  Kerry,  coram  Deleg.  in  1732.  There 
were  in  that  case,  as  in  the  present,  three  engagements  in  writing. 


B.  c.  VOL.  xyil]  marriage.  21 

Vo.  1. — Salxymple  y.  Dalxymple,  8  Hagg.  Const.  e9-71. 

The  first  was  dated  June  23,  1724,  and  contained  these  words, 
"  We  swear  we  will  marry  one  another.  *  The  second,  dated  July 
11,  1724,  was  to  this  effect:  "  I  take  you  for  my  wife,  and  swear 
never  to  marry  any  other  woman."  This  last  contract  was  re- 
peated in  December,  of  the  same  year.  It  was  argued  there,  as 
here,  that  the  iteration  of  the  declaration  proved  that  the  parties 
did  not  depend  upon  their  first  declaration,  and  was  in 
effect  a  disclaimer  of  it  But  the  Ctourt,  composed  of  a  *  full  [*  70] 
commission,  paid  no  regard  to  the  objection,  and  found  for 
the  marriage,  and  an  application  for  a  commission  of  review, 
founded  upon  new  matter  alleged,  was  refused  by  the  Chancellor. 
Things  continued  upon  this  footing  till  the  Marriage  Act,  26  Geo. 
IL,  a  33,  described  by  Mr.  Justice  Blagkstone,  Book  I.  chap.  15, 
s.  3,  ''an  innovation  on  our  laws  and  constitution,"  swept  away 
the  whole  subject  of  irregular  marriages,  together  with  all  the 
learning  belonging  to  it,  by  establishing  the  necessity  of  resorting 
to  a  public  and  regular  form,  without  which  the  relation  of  hus- 
band and  wife  could  not  be  contracted. 

It  is  not  for  me  to  attempt  to  trace  the  descent  of  the  matri- 
monial law  of  Scotland  since  the  time  of  the  Reformation.  The 
thing  is  in  itself  highly  probable,  and  we  have  the  authority  of 
Craig  (lib.  2,  dieg.  18,  s.  17)  for  asserting  that  the  canon  law  is 
its  basis  there,  as  it  is  everywhere  else  in  Europe,  "*  totam  banc 
questionem  pendere  a  jure  pontificio, "  though  it  is  likely  enough 
that  in  Craig's  time,  who  wrote  not  long  after  the  Beformation, 
the  consistorial  law  might  be  very  unsettled,  as  Mr.  Cay  in  his 
deposition  describes  it  to  have  been.  It  is,  however,  admitted  by 
that  learned  gentleman,  that  it  settled  upon  its  former  founda- 
tions, for  he  expressly  says,  that  the  canon  law  in  these  matters 
is  a  part  of  the  law  of  the  land ;  that  the  Courts  and  lawyers  rever- 
ence the  decretals  and  other  books  of  the  more  ancient  canon  law; 
and  I  observe  that  in  the  depositions  of  most  of  the  learned  wit- 
nesses, and  indeed  in  all  the  factums  that  I  have  seen  upon  these 
subjects,  they  are  referred  to  as  authorities.  Several  regula- 
tions, *  both  ecclesiastical  and  civil,  canons  and  statutes,  [*  71] 
have  prescribed  modes  of  celebrating  marriage.  Mr.  Cath- 
cart,  in  particular,  refers  to  them  in  his  deposition.  Some  of 
these  appear  to  have  been  made  in  times  of  great  ferment,  during 
the  conflict  between  the  Episcopal  and  Presbyterian  parties,  and 
are  therefore,  I  presume,  of  transitory  and  questionable  authority. 


22  MARBIA6E. 


Ho.  1.  —  Dalrymple  t.  Dalrymple,  2  Hagg.  Cooit  71,  72. 

Mr.  Cathcart  infers  that  the  whole  of  the  Scotch  statutes  hold 
solemnisation  by  a  clergyman,  or,  as  he  expresses  it,  some  one 
assuming  the  functions  of  a  clergyman,  as  necessary.  It  rather 
appears  difficult  to  understand  this  consistently  with  the  fact,  that 
other  marriages  have  always  been  held  legal  and  valid  What 
the  form  of  solemnisation  by  a  clergyman  is,  I  have  not  been 
accurately  informed;  prescribed  ritual  forms  are  not,  I  believe, 
admitted  by  the  Church  of  Scotland  for  any  office  whatever. 
Whether  the  clergyman  merely  receives  the  declaration  as  a  wit- 
ness, or  pronounces  the  parties,  by  virtue  of  his  spiritual  authority, 
to  be  man  and  wife,  as  in  our  form,  does  not  distinctly  appear.  I 
observe  that  Mr.  Gillies  says  in  his  deposition,  "  That  to  make 
marriage  valid,  it  is  not  necessary  that  it  should  be  celebrated  in 
facie  ecclesice,  but  rebtos  integris  it  can  only  be  constituted  by  a 
consent  adhibited  in  the  presence  of  a  clergyman,  or  in  some  mode 
equivalent  to  an  actual  celebration.  *  So  Lord  Braxfield  in  a  loose 
note,  which  is  introduced,  is  made  to  say,  "  Private  consent  is  not 
the  consent  the  law  looks  to ;  it  must  be  before  a  priest,  or  some- 
thing equivalent "     Now  what  are  these  equivalents  ?  and  how  to 

be  provided?  Are  they  to  be  carved  out  by  the  private 
[*  72]  fancy  and  judgment  of  the  individuals  ?     If  so,   *  though 

equivalent,  they  can  hardly  be  deemed  the  regular  forms, 
and  yet  appear  to  stand  on  a  footing  of  equal  authority.  I  observe, 
likewise,  that  a  marriage  before  a  magistrate  is  alluded  to  in  some 
passages,  as  nearly  equal  to  that  before  a  minister,  though  certainly 
not  a  marriage  in  facie  ecclesixe,  in  any  proper  sense  of  that 
expression. 

Sir  Ilay  Campbell  states,  in  an  opinion  of  his  given  to  the 
English  Chancery  (Lib.  Eeg.  A.  1780,  f.  552),  in  a  case  furnished 
to   me  by  Dr.   Stoddart,  **  That  marriages,  irregularly  performed 
without    the    intervention   of  a  clergyman,    are  censurable,  and 
formerly  the  parties  were  liable  to  be  fined  or  rebuked  in  the  face 
of  the  church,  but  this  for  a  long  time  has  not  been  practised. " 
The  regulations,  therefore,  whatever  they  m^y  ^®>  ^^  ^^*  penally 
enforced ;  and  it  does  not  appear  that  tbeY  ^^  enforced  by  any 
sense  of  reputation  or  of  obligation  imti^ge*  ^^  general  practice. 
The  advocates  who  describe  the  modes      !  tP^^^^^®  ^^  ^^  ^^^^^ 
«  regular  "  and  "  irregular, "  seem,  as  far  ^^     o^^  '^''^^^^^'  ^  attribute 
no  very  distinctive  preference  to  the  oyT  ^    <^^  ^^^  ^^^^^'  ^^  ^^^ 
rate,  the  distinction  between  them  is  xi^^    0  ^  ^ngVy  marked  in 


R.  C.  VOL.  XVII.]  MABRIAGE.  23 

Ho.  1.  —  Dalxympto  t.  Dalxympl*,  2  Hagg.  Oooft  72-74. 

the  existing  usage  of  that  country.  Many  of  the  marriages  which 
take  place  between  persons  in  higher  classes  of  society  are  con* 
tracted  in  such  irregular  forms,  if  so  to  be  denominated.  They 
appear  to  create  no  scandal ;  to  give  no  offence.  The  parties  are 
not  reprobated  by  public  opinion,  nor  is  legal  censure  actually 
applied  But  taking  it,  that  the  distinction  between  the  regular 
and  irregular  marriages  was  much  stronger  than  I  am  en- 
abled, by  the  present  *  evidence,  to  suppose,  the  question  [*  73] 
still  remains  to  be  examined,  how  far  actual  consummation 
is  required,  by  the  law  of  Scotland,  in  marriages  which  are  so  to 
be  deemed  irregular. 

The  libel  is  drawn  in  a  form  not  calculated  to  extract,  simply 
and  directly,  a  distinct  statement  of  what  the  law  of  Scotland 
may  be  upon  this  point;  for  it  collects  together  all  the  points  of 
which  the  party  conceives  she  can  avail  herself,  consummation 
included,  as  matters  of  fact  and  matters  of  law,  and  then  alleges, 
that,  by  the  law  of  Scotland,  this  aggregate  constitutes  a  marriage ; 
without  providing  for  a  possible  case  in  which  she  might  establish 
some  of  these  matters  and  fail  in  establishing  others,  e.  g,,  if  she 
failed  in  proof  of  a  copula,  but  succeeded  in  establishing  a  solemn 
compact  If  the  law  had  been  more  distinctly  understood  here  at 
the  commencement  of  this  suit,  the  libel  would  probably  have 
been  drawn  with  more  accommodation  to  the  possible  state  of  facts 
that  might  ultimately  call  for  the  proper  specific  rule  of  law. 
The  advocates  of  Scotland  have,  to  a  great  degree,  supplied  the 
want  of  that  distinctness  in  the  libel,  by  bringing  forward  the 
distinctions  in  their  answers,  and  applying  what  they  conceive  to 
be  the  law,  applicable  to  the  possible  case,  that  may  result  from 
the  evidence ;  most  of  them  have  stated  what  they  conceive  to  be 
the  law,  first,  in  the  case  of  a  promise  de  futuro ;  secondly,  of  a 
promise  cum  copula  ;  thirdly,  of  a  solemn  declaration  or  acknowl- 
edgment of  marriage ;  and,  fourthly,  of  such  a  declaration  accom- 
panied by  a  copula.  It  may  be  convenient  to  consider,  first, 
whether  the  present  case  is  a  case  of  promise,  or  of  present 
declaration  and  acknowledgment  *  It  will  be  convenient  [♦  74] 
to  do  so  in  two  respects :  The  first  convenience  attending  it 
is,  that  the  fact  itself  is  determinable  enough  upon  the  face  of 
written  existing  instruments.  It  is  not  to  be  gathered  from  the 
loose  recollections  of  loose  verbal  declarations,  not  guarded  either 
in  the  expressions  of  those  who  made  them,  or  in  the  memory  of 


24  MARRIAGE. 


Ho.  1.  —  Dalrympto  t.  DalxympU,  2  Hagg.  Caut.  74,  76. 

those  who  attest  them.  The  second  convenience  resulting  from 
this  is,  that  a  laige  portion  of  the  inquiry  into  the  other  points  of 
the  case  may,  in  a  great  degree,  be  rendered  superfluous;  for  if 
these  papers  contain  mere  promises,  then  have  I  to  consider  only 
the  law  of  promises,  as  referable  to  cases  accompanied  or  unaccom- 
panied by  a  copula^  leaving  out  entirely  the  law  that  respects 
acknowledgment  and  declaration.  On  the  other  hand,  if  they  are 
to  be  considered  as  acknowledgments,  then  the  law  of  promises 
may  be  dismissed,  except  perhaps  sometimes  to  be  introduced 
incidentally  for  purposes  of  occasional  illustration. 

Whether  they  are  to  be  considered  as  promises  or  declarations 
must  be  determined  upon  the  contents  of  the  instruments  them- 
selves, on  such  a  view  as  the  plain  meaning  of  the  words  imports, 
and  upon  the  information  of  their  technical  meaning  as  commu- 
nicated by  the  Scotch  lawyers ;  for  it  is  possible  that  they  may  be 
subject  to  a  technical  construction  different  from  their  obvious 
meaning.  This  is  the  case  in  the  marriage  settlements  of  Scot- 
land. The  words  of  the  stipulatio  apanaalitia  are  present  declara- 
tory words;  the  parties  mutually  accept  each  other,  but  the 
engagements  they  enter  into  are  always  technically  considered  to 
be  mere  promises  de  futuro.  Those  who  are  conversant  in 
[*  75]  *  the  books  of  the  canon  law  will  recollect  the  extremely 
nice  distinctions  which  that  law  and  its  commentators  have 
made  between  expressions  of  a  very  similar  import  in  their  obvious 
meaning,  as  constituting  contracts  de  prcesenti,  or  only  promises  de 
futuro. 

The  first  paper  is  without  date,  and  is  merely  a  promise.  Mr. 
Dalrymple  promises  to  marry  Miss  Gordon  as  soon  as  it  is  in  his 
power,  and  she  promises  the  same ;  it  is  subscribed  by  both  their 
names ;  is  indorsed  **  A  sacreed  promise, "  and  is  left  in  her  pos- 
session. It  is  pleaded  to  be  the  first  that  was  executed  by  them, 
and  it  is  highly  reasonable  to  presume  that  it  was  so,  for  no 
person,  I  think,  would  be  content  to  accept  such  a  paper  as  this, 
after  having  received  the  papers  which  follow,  marked  2  and  10. 
The  paper  marked  No.  2  is  dated  on  the  28th  of  May,  1804,  and 
contains  these  words,  "  I  hereby  declare  Johanna  Gordon  is  my 
lawful  wife;  and  I  hereby  acknowledge  John  William  Henry 
Dalrymple  as  my  lawful  husband."  I  see  no  great  difference 
between  the  expression  "  declare  "  and* "  acknowledge ;  "  the  words 
properly  enough  belong  to  the  parties  by  whom  they  are  respec- 


S.  C.  VOL.  XVII.]  HARBIAGE.  25 

Ho.  1.  —  Dalxympto  y.  DalzympU,  2  Hagg.  Oomt  76-77. 

tively  used,  and  are  perhaps  not  improperly  adapted  to  the  deco- 
rums of  such  a  transaction  between  the  sexes.  No.  10  is  a 
reiterated  declaration  on  the  part  of  Mr.  Dalrymple,  accompanied 
with  a  promise  **  that  he  will  acknowledge  Miss  Gordon  as  his 
lawful  wife  the  moment  he  has  it  in  his  power.  *  She  makes  no 
repeated  declaration,  but  promises  that  "  nothing  but  the  greatest 

necessity  (necessity  which situation  alone  can 

justify)  shall  ever  ♦force  her  to  declare  this  marriage."  [*76] 
It  is  signed  by  him,  and  by  her,  describing  herself  J.  Grordon, 
now  J.  Dalrymple,  and  it  is  dated  July  11,  1804  Both  the 
papers  aie  inclosed  in  an  envelope,  on  which  is  inscribed  **  Sacreed 
promises  and  engagements.  *  There  are  promises  and  engagements 
that  would  satisfy  these  terms,  independent  of  the  words  which 
contain  the  declaration  of  the  marriage.  At  the  same  time  it  is 
to  be  observed  that  the  words  "  promises  and  engagements  "  are 
not  improperly  applied  to  the  marriage  vow  itself,  which  is  pro- 
spective in  its  duties,  which  engages  for  the  performance  of  future 
offices  between  the  parties  till  death  shall  part  them,  and  to  which, 
in  the  words  of  our  lituigy,  it  plights  their  troth,  or  in  more 
modem  language,  pledges  their  good  faith  for  that  future  per- 
formance. I  feel  some  hesitation  in  acceding  to  the  remark  that 
the  paper  marked  No.  2  is  at  all  weakened  or  thrown  loose  by  the 
mere  engagement  of  secrecy,  which  seems  to  be  the  principal,  if 
not  the  sole,  object  of  the  latter  paper,  though  Mr.  Dalrymple  has 
thrown  in  a  renewed  declaration  of  his  marriage ;  that  reiterated 
declaration,  though  accompanied  with  a  promise  of  secrecy,  can- 
not, upon  any  view  of  the  case,  be  considered  as  a  disclaimer  of 
the  former.  An  engagement  of  secrecy  is  perfectly  consistent 
With  the  most  valid,  and  even  with  the  most  regular  marriages. 
It  frequently  exists  even  in  them  from  prudential  reasons ;  from 
the  same  motives  it  almost  always  does  in  private  or  clandestine 
marriages.  It  is  only  an  evidence  against  the  existence  of 
a  marriage,  when  no  such  prudential  reasons  can  be  ♦  assigned  [*  77] 
for  it,  and  where  everything  arising  from  the  very  nature 
of  marriage  calls  for  its  publication. 

Such  is  the  nature  of  these  exhibits :  first,  a  promise ;  secondly, 
that  promise  merged  in  the  direct  acknowledgment  of  the  accom- 
plished fact;  thirdly,  a  renewed  admission  of  the  fact  on  his  side, 
with  a  mutual  engagement  for  secrecy  till  the  proper  time  for  dis- 
closure should  arrive. 


26  MARRIAGE. 


K0..I.  —  Dalxymple  ▼.  Dalrymple,  2  Hagg.  Cout.  77,  78. 

In  these  papers,  as  set  up  by  Miss  Gordon,  resides  the  constitu- 
tion, as  some  of  the  gentlemen  who  have  been  examined  call  it, 
or  as  others  of  them  term  it,  the  evidences  of  the  marriage ;  for 
it  is  matter  of  dispute  between  these  learned  persons,  whether  such 
papers,  when  free  from  all  possible  impeachment,  are  constituents, 
or  merely  evidences  of  marriage.  It  appears  to  be  a  distinction 
not  very  material  in  its  effects ;  because  if  it  is  to  be  considered 
that  such  papers,  so  qualified,  are  only  to  be  treated  as  evidences, 
yet  if  free  from  all  possible  impeachments,  on  the  grounds  on 
which  the  law  allows  them,  as  evidences  to  be  impeached,  they 
make  full  faith  of  the  marriage,  they  sustain  it  as  eflfectually  as 
if,  according  to  other  ideas,  they  directly  constituted  it;  they 
have  then  become  prcesumptiones  juris  et  dejure,  which  establish 
the  same  conclusion,  although  in  another  way. 

But  these  papers  must  be  taken  in  conjunction  with  the  letters 
which  may  control  or  confirm  them.  What  is  the  effect  of  the 
letters?  In  almost  all  of  them  Mr.  Dalrymple  addresses  Miss 
Gordon  as  his  wife,  and  describes  himself  as  her  husband.  In  the 
first  letter  he  insists  upon  it,  that  she  shall  draw  upon  him  for 
any  money  she  may  stand  in  need  of,  "  for  it  is  her  right, " 
[*  78]  and  *  "  in  accepting  of  it  she  will  prove  her  acknowledgment 
of  it "  Her  sister  he  calls  his  sister.  This  letter  appears 
by  the  post-mark  to  have  been  written  before  No.  2,  and  therefore 
has  been  said  to  be  entirely  premature,  and  to  give  an  interpreta- 
tion to  subsequent  expressions  of  the  like  kind.  But  non  constat 
that  it  might  not  be  written  long  after  the  undated  promise  by 
which  the  parties  entered  into  a  solemn  engagement  to  marry. 
Verbal  declarations,  similar  in  their  imports  to  the  contents  of 
No.  2,  might  have  passed,  for  it  can  hardly  be  conceived  that  such 
a  paper  could  have  passed,  without  many  preliminary  verbal 
declarations  to  the  same  effect  People  do  not  write  in  that 
manner  till  after  they  have  talked  together  in  the  same  style. 
The  post-mark  on  the  letter  No.  4  is  May  the  30th,  and  this 
letter  refers  to  what  passed  on  the  night  after  the  paper  No.  2 
bears  date ;  in  it  he  says,  "  You  are  my  wife ;  to  retract  is  impos- 
sible and  ever  shall  be ;  I  have  proved  my  legal  right  to  protect 
you,  which  I  have  most  fully  established :  nothing  in  this  world 
shall  break  those  ties. "  The  letter  No.  5  has  these  expressions : 
"  Bemember  you  are  mine  that  God  Almighty  may  preserve  my 
wife  is  the   prayer  of  her  husband. "     No.  6.   "  It  grieves  me  to 


B.  C.  VOL.  XVn.]  MARBIAGE.  27 

Ho.  1.  —  Dalzympto  t.  DalzympU,  2  Hagg.  Goaft  7S-80. 

suffer  you  five  minutes  from  your  husband;  nothing  can  change 
my  sentiments,  independent  even  of  those  sacred  ties  which  unite 
u&  Nothing  ever  can  or  should  (if  't  were  possible)  annul  them. 
Put  that  confidence  in  me  which  your  duty  requires.  That 
God  may  ever  preserve  my  wife,  and  inspire  her  with  the  purest 

love  for  her  husband,  is  the  first  wish  of  her  adoring . ' 

No.  8.  "  I  have  *  received  letters  from  town  which  say  that  [*  79] 
Lord  Stair  has  heard  of  our  marriaga  *  No.  12.  *  What- 
ever money  you  may  want  draw  on  me  for  without  scruple. "  No. 
13,  dated  May  29,  1805.  "  Situated  as  you  are,  nothing  could 
strengthen  the  ties  which  unite  us,  therefore  wish  it  not  to  be 
mentioned  that  you  are  my  wife  till  it  can  be  done  without  injury 
to  ourselves.  I  insist  upon  a  paper  acknowledging  yourself  as  my 
wife. •  Na  14,  dated  June  10,  1805.  "Forward  to  me  the 
paper  I  requested  in  my  last,  and  acknowledge  yourself  my  wife 
—  that  as  we  are  not  immortal  I  may  leave  you,  in  trust  of  a 
friend,  the  small  remains  of  what  was  once  a  tolerable  fortune; 
you  can't  refuse  on  any  legal  grounds ;  do,  my  dearest  wife,  for- 
ward it "  In  No.  15,  dated  June  28,  1805,  he  says :  "  I  would  not 
give  up  the  title  of  your  sister's  brother  for  any  consideration. 
Don't  deny  yourself  what  you  require,  as  I  should  not  wish  my 
wife  to  appear  in  anything  not  consistent  with  her  rank ;  I  will 
arrange  before  my  departure  money-matters,  so  as  to  give  you 
every  opportunity  of  gratifying  your  taste,  or  any  other  fancy. " 
In  the  letter  marked  14  he  asks  her  permission  to  go  abroad  on 
account  of  the  distress  of  his  affairs.  "  Will  you  allow  me  to 
endeavour  by  a  short  absence  to  rectify  these  things  ?  In  asking 
your  consent,  I  humbly  conjure  you,  dearest  love,  to  pardon  me. 
I  solemnly  assure  you  I  will  not  be  absent  from  you  very  long.  * 
In  another  part  of  this  letter  he  points  out  the  period  of  four 
months  as  the  probable  duration  of  his  absenca 

Now  it  is  impossible  to  say  that  the  exhibits  Nos.  2 
and  10  are  at  all  weakened  by  the  strong  *  conjugal  expres-  [*  80] 
sions  contained  in  these  letters.  Taken  together,  they,  in 
their  plain  and  obvious  meaning,  import  a  recognition  of  an  exist- 
ing marriage.  What  is  their  technical  meaning  ?  That  informa- 
tion we  must  obtain  from  the  learned  persons  who  have  been 
examined.  Mr.  Erskine,  Mr.  Hamilton,  Mr.  Cragie,  Mr.  Hume, 
and  Mr.  Bamsay  are  all  clearly  of  opinion  that  they  are  "  present 
declarations.  *     Mr.  Cay  is  equally  clear  that  they  "  are  contracts 


28  MARRUGE. 


Ho.  1.  — Dalxympto  t.  DalxymplA,  2  Hagg.  Conit.  80,  81. 

de  prcesenti.*  Sir  Hay  Campbell  describes  them  as  "very 
explicit  mutual  declarations  of  marriage  between  the  parties.' 
Mr.  Clerk  says  that  No.  2  is  evidence  of  a  very  high  nature  to 
prove  that  "  a  marriage  had  been  contracted  by  the  parties ;  it  is  a 
full  and  explicit  declaration  of  a  contract  de  prcMenti.  *  *  No. 
10/  he  says,  "imports  little  more  than  No.  2;  it  is  important 
evidence  to  the  same  effect "  Mr.  Cathcart  and  Mr.  Gillies,  who 
hold  a  copula  in  all  cases  necessary,  do  not  distinctly  say  under 
which  class  of  cases  the  present  falls. 

Upon  this  view  I  think  myself  entitled  to  lay  aside,  at  least 
for  the  present,  the  rules  of  law  that  apply  to  promises.  The 
main  inquiry  will  thus  be  limited  to  two  questions :  whether,  by 
the  law  of  Scotland,  a  present  declaration  constitutes  or  evidences 
a  marriage  without  a  copvia;  and,  secondly,  whether,  if  it  does 
not,  the  present  evidence  supplies  sufficient  proof  that  such  a 
requisite  has  been  complied  with. 

The  determination  of  the  first  question  must  be  taken  from  the 
authorities  of  that  country,  deciding  for  myself  and  for  the  parties 
intrusted  to  my  care,  as  well  as  I  can,  upon  their  preponderance 
where  they  disagree,  and  feeling  that  hesitation  of  judg- 
[*  81]  ment  *  which  ought  to  accompany  any  opinion  of  mine  upon 
points,  which  divide  the  opinions  of  persons  so  much 
better  instructed,  in  all  the  learning  which  applies  to  them. 

The  authorities  to  which  I  shall  have  occasion  to^refer  are  of 
three  classes :  first,  the  opinions  of  learned  professors  given  in  the 
present  or  similar  cases ;  secondly,  the  opinions  of  eminent  writers 
as  delivered  in  books  of  great  legal  credit  and  weight ;  and,  thirdly, 
the  certified  adjudication  of  the  tribunals  of  Scotland  upon  these 
subjects.  I  need  not  say  that  the  last  class  stands  highest  in 
point  of  authority ;  where  private  opinions,  whether  in  books  or 
writing,  incline  on  one  side,  and  public  decisions  on  the  other,  it 
will  be  the  undoubted  duty  of  the  Court,  which  has  to  weigh 
them,   stare  decisis. 

Before  I  enter  upon  this  examination  I  will  premise  an  observa- 
tion, from  which  I  deduce  a  rule  that  ought,  in  some  degree,  to 
conduct  my  judgment;  the  observation  I  mean  is  this,  that  the 
canon  law,  as  I  before  have  described  it  to  be,  is  the  basis  of  the 
marriage  law  of  Scotland,  as  it  is  of  the  marriage  law  of  all 
Europe.  And  whether  that  law  remains  entire,  or  has  been 
varied,  I  take  it  to  be  it  safe  conclusion,  that,  in  all  instances 


B.  C.  VOL.  XVn.]  MARRIAGE.  29 

Ho.  1.  —  SalzymplA  t.  Salzympk,  S  Hagg.  Conit  81-M. 

where  it  is  not  proved  that  the  law  of  Scotland  has  resiled  from 
it,  the  fair  presumption  is,  that  it  continues  the  same.  Show  the 
variation,  and  the  Court  must  follow  it;  but  if  none  is  shown, 
then  must  the  Court  lean  upon  the  doctrine  of  the  ancient  general 
law;  for  I  do  not  find  that  Scotland  set  out  upon  any  original 
plan  of  deserting  the  ancient  matrimonial  law  of  Europe,  and  of 
forming  an  entire  new  code  upon  principles  hitherto  un- 
known *  in  the  Christian  world.  It  becomes  of  importance,  [*  82] 
therefore,  to  consider  what  is  the  ancient  general  law  upon 
this  subject,  and  on  this  point  it  is  not  necessary  for  me  to 
restate,  that  by  the  ancient  general  law  of  Europe,  a  contract  per 
verba  de  prcesenti,  or  a  promise  per  verba  de  futuro  cum  eoptUd, 
constituted  a  valid  marriage  without  the  intervention  of  a  priest, 
till  the  time  of  the  Coimcil  of  Trent,  the  decrees  of  which  Council 
were  never  received  as  of  authority  in  Scotland. 

It  appears  from  the  case  of  Younger,  cited  by  Sir  Thomas  Craig 
(Lib.  2,  dieg.  18,  s.  19),  that,  in  his  time,  the  practice  upon  a  con- 
tract de  prcBsenti  was  the  same  in  Scotland  as  it  continued  to  be 
in  England  till  the  period  of  the  Marriage  Act,  viz. ,  to  compel  the 
reluctant  party  to  a  public  celebration  as  matter  of  order.  This 
was  soon  discontinued  in  Scotland,  on  account  of  the  apparent 
incongruity  of  compelling  a  man  to  marry  against  his  will,  but 
with  a  solemn  profession  of  love  and  affection  to  the  party  who 
compelled  him.  But  though  they  discarded  the  process  of  com- 
pulsion for  some  such  reason  as  this,  which  is  stated  by  Mr. 
Hume,  they  might  still  consistently  retain  the  principle,  that  a 
present  consent  constituted  a  valid  marriage.  Whether  it  was 
retained,  is  the  question  I  have  to  examine,  assuming  first  (as  I 
have  done)  that  if  the  contrary  is  not  shown,  it  must  so  be 
presumed. 

The  evidence  of  opinions  on  this  point,  taken  in  this  and  similar 
cases,  and  under  similar  authority,  stands  thus:  Mr.  Erskine, 
Mr.  Cragie,  Mr.  Hamilton,  Mr.  Hume,  and  Mr.  Bamsay, 
who  *have  been  examined  upon  the  question  at  present  [*83] 
before  the  Court,  are  all  clear  and  decided  in  their  opinions, 
that  a  declaration  per  verba  de  prcesenti  without  a  copula  does,  by 
the  law  of  Scotland,  constitute  a  valid  marriage.  I  will  not  enter 
into  an  examination  of  their  authorities  where  they  agree, 
Oportet  discentem  credere,  though,  where  authorities  differ,  it  is  a 
rule  which  cannot  be  universally  applied.     Still  less  shall  I  pre- 


30  MARRIAGE. 


Vo.  1. — SalzymplA  t.  BalzymplA,  S  Hagg.  Conft  83,  84. 

simxe  to  discuss  their  reasonings,  except  in  a  few  instances,  where, 
however  desirous  to  follow,  I  find  a  real  inability  to  accompany 
them  to  their  conclusions.  To  the  authorities  above  stated  I 
must  add  the  opinions  of  the  learned  persons  examined  upon  the 
case  of  Beamish  and  Beamish,  a  case  which  came  before  this  Court 
upon  a  similar  question  of  a  Scotch  marriage  of  an  Englishman 
with  a  Scotch  woman  in  the  year  1788,  and  in  which  the  Court  of 
Arches,  to  which  it  was  appealed,  upon  the  informations  of  law 
obtained  from  the  learned  advocates  of  Scotland,  pronounced  for 
the  validity  of  the  marriage.  Mr.  John  Millar,  Professor  of  Law 
at  Glasgow,  there  said,  "  That,  by  the  law  of  Scotland,  the  cere- 
mony of  being  married  by  a  clergyman  was  not  necessary  to  con- 
stitute a  valid  marriage.  The  deliberate  consent  of  parties, 
entering  into  an  agreement  to  take  one  anothes  for  husband  and 
wife,  was  sufficient  to  constitute  a  legal  marriage,  as  valid  in 
every  respect  as  that  which  is  celebrated  in  the  presence  of  a 
clergyman.  Consent  must  be  expressed  or  understood  to  be  given 
per  verba  deproesenti;  for  consent  defuturo,  that  is,  a  promise  of 

marriage,  does  not  constitute  actual  marriage.  By  the 
[*84]  Scotch  law,  the  deliberate  *  consent  of  parties  constitutes 

marriage. "  Mr.  John  Orr,  in  his  deposition,  said,  "  By 
the  laws  of  Scotland,  a  solemn  acknowledgment  of  a  marriage 
having  happened  between  the  parties,  whether  verbally  or  in 
writing,  is  sufficient  to  constitute  a  marriage,  whether  expressed 
in  verbis  de  prcesenti,  or  in  an  acknowledgment  that  the  marriage 
took  place  at  a  former  period.  A  promise  followed  by  a  copula 
would  constitute  a  valid  marriage ;  and  a  written  instrument  con- 
taining not  a  consent  de  prcesenti,  but  only  stating  that  the 
parties  were  married  at  a  certain  time,  or  even  a  solemn  verbal 
acknowledgment  to  this  effect,  although  no  actual  marriage  had 
taken  place,  is  sufficient  to  constitute  a  marriage  by  the  law  of 
Scotland. "  Mr.  Hume  said,  **  Marriage  is  constituted  by  consent 
of  parties  to  take  or  stand  to  each  other  in  the  relation  of  husband 
and  wife.  The  mode  or  form  of  consent  is  not  material,  but  it 
must  be  de  prassenti. "  Mr.  Erskine  and  Mr.  Eobertson  agreed  in 
saying,  "  That  a  deliberate  acknowledgment  of  the  parties  that  they 
were  married,  though  not  containing  a  contract  jper  verba  de  prcesenti, 
is  sufficient  evidence  of  a  marriage,  without  the  necessity  of  prov- 
ing the  actual  celebration."  Mr.  Clerk,  Mr.  Gillis,  and  Mr. 
Cathcart,  who  are  examined  in  the  present  case  on  the  part  of  Mr. 


B.  C.  VOL.  xvil]  marriagb,  31 

ITo.  1.  — Dftbyapto  t.  IMiju]^,  S  Hagg.  Cooit.  S4-M. 

Dalxymple,  are  equally  clear  in  their  opinions  on  the  other  side  of 
the  question.  Mr.  Gay  inclines  to  think  a  eoptUa  necessary, 
"  although  well  aware  that  a  different  opinion  prevails  among  law- 
yers on  this  point. " 

Sir  Day  Campbell's  opinion  upon  this  important  point, 
which  the  Court  was  particularly  eager  to  *  learn,  is,  through  [*  85] 
some  inaccuracy  of  the  examiner,  transmitted  in  such  a 
manner  as  to  leave  it  rather  a  matter  of  question  which  of  the 
two  opinions  he  favours ;  for  in  the  former  part  of  the  deposition 
he  is  made  to  say,  that "  by  the  general  principles  of  the  law  of 
Scotland,  marriage  is  perfected  by  the  mutual  consent  of  parties 
accepting  each  other  as  husband  and  wife.  *  In  words  so  express, 
and  unqualified,  pointing  to  nothing  beyond  the  mutual  acceptance 
of  the  parties,  as  perfecting  a  marriage  without  reference  to  any 
future  act  as  necessary  to  be  done,  I  thought  I  had  received  a  judg- 
ment of  high  authority  in  favour  of  the  ancient  rule,  that  consent 
without  dL  concuUtus  constitutes  a  marriage ;  but  in  a  latter  part  of 
the  deposition  he  lays  it  down  that  this  acknowledgment  per 
verba  de  proeserUi  must  be  attended  with  personal  intercourse,  prior 
or  subsequent ;  if  so,  it  throws  a  doubt  upon  the  precise  meaning 
of  the  former  position,  which  had  declared  a  marriage  perfected  by 
mere  mutual  acceptance.  "  Without  such  intercourse, "  Sir  Hay 
Campbell  says,  '^  they  would  resolve  into  mere  stipulatio  sponsalitia, 
where  the  words  are  de  prcesenti,  but  the  effect  future.*  And 
here  I  have  to  lament  the  difficulty  I  find  in  following  so  highly 
respectable  a  guide  to  the  conclusion,  on  account  of  a  distinction 
that  strongly  impresses  itself  upon  my  apprehension.  In  the 
Hipvlatio  sponsalitia  the  words  de  profsenti  are  qualified  by  the 
future  words  that  follow,  and  which  imply  something  more  is  to 
be  done,  —  a  public  marriage  to  take  place ;  but  in  the  case  supposed 
of  a  clear  present  declaration,  no  such  qualifying  expressions  occur 
—  nothing  pointing  to  future  acts  as  the  fulfilment  of  a 
*  present  engagement  I  find  the  greater  difficulty  in  ascer-  [*  86] 
taining  the  decided  judgment  of  this  very  eminent  person, 
from  considering  an  opinion  of  his  given  into  the  English  Court  of 
Chancery  (Lib.  Eeg.  A.  1780,  F.  552),  upon  a  requisition  from 
that  Court,  and  on  which  that  Court  acted  in  the  case  of  the  Scotch 
marriage.  In  that  case,  the  case  of  the  marriage  of  Thomas 
Thomasson  and  Catharine  Grierson,  the  opinion,  dated  August  18, 
1781,  and  remaining  on  record  in  Chancery,  states  a  present  con- 


32  MABSUGE. 

Vo.  1.  —  Dalrymi^  t.  Dalrymple,  2  Hagg.  Oonit.  86,  87. 

tract  to  be  sufficient  to  validate  a  marriage,  without  any  mention 
of  a  copula,  antecedent  or  subsequent;  the  known  accuracy  of  his 
judgment  would  never  have  allowed  him  to  omit  this,  if  it  had 
been  considered  by  him  at  that  time  a  necessary  ingredient  in  the 
validity.  I  might,  perhaps,  without  much  impropriety,  be  per- 
mitted to  add  another  legal  opinion  of  equal  authority,  —  the 
opinion  of  a  person,  whose  death  is  justly  lamented  as  one  of  the 
greatest  misfortunes  that  have  recently  visited  that  country.  I 
need  not  mention  the  name  of  the  Lord  President  Blaib,  upon 
whose  deliberate  advice  and  judgment  this  present  suit  has  been 
asserted  in  argument,  and  without  contradiction,  to  have  been 
brought  into  this  Court 

Upon  this  state  of  opinions,  what  is  the  duty  of  the  Court? 
How  am  I  to  decide  between  conflicting  authorities?  For  to 
decide  I  am  bound.  Far  removed  from  me  be  the  presumption  of 
weighing  their  comparative  credit ;  it  is  not  for  me  to  construct  a 
scale  of  personal  weight  amongst  living  authorities,  with 
[*  87]  most  of  whom  I  *  am  acquainted  no  otherwise  than  by  the 
degree  of  eminence  which  situation,  and  office,  and  public 
practice,  and  reputation,  may  have  conferred  upon  them.  In 
such  a  case  I  am  under  the  necessity  of  quitting  the  proper  legal 
rule  of  estimating  pondere,  non  numero  ;  I  am  compelled  to  attend 
a  little  to  the  numerical  majority  (though  I  admit  this  to  be  a 
sort  of  rusticum  judicium),  and  finding  that  much  the  greater 
number  of  learned  persons  recognise  a  rule  consonant  to  that 
which,  in  ancient  times,  governed  the  subject  universally,  I  think 
I  am  not  qualified  to  say,  that  as  far  as  the  weight  of  opinion 
goes,  it  is  proved  that  the  law  of  Scotland  has  innovated  upon  the 
ancient  general  rule  of  the  marriage  law  of  Europe.  It  appears 
to  me,  that  the  common  mode  of  expression  used  in  Scotland, 
which  is  constantly  recurring,  is  no  insignificant  proof  of  the 
contrary  doctrina  It  is  always  expressed.  Promise  cum  copuld  ; 
the  copula  is  in  the  ordinary  phrase,  a  constant  adjunct  to  the 
promise,  never  to  the  contract  de  proesenti,  strongly  marking 
the  known  distinction  between  the  two  cases,  that  the  latter  by 
itself  worked  its  own  effect,  and  that  the  other  would  be  of  no 
avail,  unless  accompanied  with  its  constant  and  express  associate. 

I  come  now  to  the  text  authorities  of  the  Scotch  writers.  The 
first  to  whom  I  shall  refer  is  Craig  (Jus  Feudale,  lib.  2,  dieg.  18, 
ss.  17,  19;.     It  (Iq  a  0ot  appear  to  me  that  he  is  of  great  authority 


B.  C.  VOL.  XVII.]  MABRIA6E.  33 

Vo.  1.  — Salzymi^  t.  Salzymple,  2  Hagg.  Cooft  S7-80. 

either  one  way  or  the  other :  he  admits  generally  that  the  question 
of  marriage  is  not  hujtis  instituti  propria,  sed  judicis  eccU- 
siagtid,  and  the  case  *  of  Younger,  which  he  cites  from  the  [*  88] 
Court  of  the  Commissaries,  is  a  case  not  of  a  declaration 
de  prcesenti,  but  of  a  promise  cum  eopuld  ;  unless,  therefore,  it  is 
previously  established,  that  a  promise  cum  eopuld  converts  itself 
in  all  respects,  and  in  all  its  bearings,  into  a  contract  de  prcesenti 
without  a  copula  (which  certainly  it  does  in  the  canon  law,  and 
is  so  recognised  in  the  majority  of  the  opinions  upon  the  law  of 
Scotland),  it  is  no  direct  authority;  and  the  conclusion  is  still 
more  weakened,  by  observing,  that,  in  that  case,  a  judicial  sen- 
tence of  the  Commissaries  had  been  actually  obtained,  and  that 
the  point  determined  by  the  common  law  was  a  mere  question  of 
succession  upon  legitimation,  which  may  depend  upon  many  con- 
siderations extrinsic  to  the  original  validity  of  the  marriage. 

A  more  pertinent  authority,  and  of  higher  consideration,  is  Lord 
Stair,  an  ancestor,  I  presume,  of  one  of  the  present  parties  —  a 
person  whose  learned  labours  have  at  all  times  engaged  the  rever- 
ence of  Scotch  jurisprudence.  He  treats  of  this  very  question, 
stating  it  as  a  question,  and  determines  it  thus  (Stair's  Institut 
lib.  1,  tit  4,  §  6) :  "  It  is  not  every  consent  to  the  married  state 
that  makes  matrimony,  but  consent  de  prcesenti,  not  a  promise  de 
futuro  matrimonio.  *  The  marriage  consists  not  in  ^  the  promise 
but  in  the  present  consent,  whereby  they  accept  each  other  as 
husband  and  wife,  whether  by  words  expressly,  or  tacitly  by 
marital  cohabitation,  or  acknowledgment,  or  by  natural  commix- 
tion  where  there  hath  been  a  promise  preceding,  for  therein 
is  presumed  a  conjugal  consent  de  prcesenti,  but  *  the  consent  [*  89] 
must  specially  relate  to  that  conjunction  of  bodies  as  being 
then  in  the  consenter's  capacity,  otherwise  it  is  void. "  I  shall 
decline  entering  into  the  distinctions  and  refinements  which  have 
attempted  to  convert  the  obviously  plain  meaning  of  this  passage 
into  one  of  very  different  import  It  does  appear  to  me  to  estab- 
lish the  opinion  of  this  very  learned  person  to  be,  that  without  a 
commixtion  of  bodies  immediately  following  (though  in  all  cases 
to  be  looked  to  as  possible,  and  at  some  time  or  other  to  take 
place),  a  present  valid  marriage  is  constituted  by  a  contract  de 
prcesenti. 

Sir  George  Mackinsie  (Institut  book  1,  tit  6,  §  3),  Lord  Advo- 
cate under  King  Charles  and  James  II. ,  whose  authority  carries 

VOL.  XVII.  — 3 


34  MARRIAGE. 

ITo.  1., —  IMiympU  t.  IMiympIe,  S  Hagg.  Oooft  81^81. 

with  it  a  fair  proportion  of  weight,  says,  *  Consent  de  prcesenti 
is  that  in  which  marriage  doth  consist  Consent  de  futuro  is  a 
promise;  this  is  not  marriage,  for  either  party  may  Besile  rebus 
integris;"  manifestly  intimating  that  this  could  not  be  done 
under  the  consent  de  prcesenti. 

Another  authority  of  more  modem  date,  but  entitled  to  the 
greatest  respect,  is  Mr.  Erskine,  a  writer  of  institutional  law; 
by  him  it  is  expressly  laid  down  (B.  1,  tit  6,  §  5)  that  *  marriage 
consists  in  the  present  consent,  whether  that  be  by  words 
expressly,  or  tacitly,  by  marital  cohabitation,  or  by  acknowledg- 
ment Marriage  may  without  doubt  be  perfected  by  the  consent  of 
parties  declared  by  writing,  provided  the  writing  be  so  conceived 

as  to  import  a  present  consent '  Nothing  upon  the  direct 
[♦  90]   meaning  of  these  words  can  be  more  *  clear,  than  that  he 

held  bodily  conjunction  not  necessary  in  a  present  contract 
The  very  note  of  the  anonymous  editor,  to  whom,  as  an  anony- 
mous editor,  no  authority  can  be  allowed,  whatever  may  be  the 
weight  that  really  belongs  to  it,  admits  this ;  for  he  says,  "  From 
the  later  decisions  of  the  Court,  there  is  reason  to  doubt,  if  it  can 
now  be  held  as  law,  that  the  private  declarations  of  parties,. even 
in  writing,  are  per  se  equivalent  to  actual  celebration  of  mar- 
riage ;  *  admitting,  by  that  mode  of  expression,  that  such  was  the 
doctrine  of  the  text  and  of  the  times  when  it  was  composed.  Mr. 
Clerk  says,  "  he  considers  the  doctrine  to  be  incorrect, "  thereby 
likewise  admitting  it  to  be  the  doctrine  contained  in  these  words. 

I  am  not  enabled  to  say  how  far  Mr.  Hutcheson's  book  can  be 
considered  as  a  work  of  authority.  It,  however,  carries  with  it 
most  respectable  credentials,  if  it  be  true,  what  has  been  asserted 
in  the  argument,  that  it  has  been  sanctioned  by  the  approbation  of 
several  of  the  Judges  of  Scotland,  and  particularly  of  Sir  Hay 
Campbell,  who  refers  to  it  in  his  deposition  as  a  book  of  credit, 
and  under  whose  patronage  it  is  published,  and  to  whose  perusal 
it  is  said  to  have  been  submitted  previously  to  its  publication. 
His  statement  of  the  law  of  Scotland  is  full  and  explicit  in  favour 
of  the  doctrine,  that  private  mutual  declarations  require  no  bodily 
consummation  to  constitute  a  marriage.  He  says  that  the  ancient 
principle  to  this  effect  has  been  happily  retained  in  the  law  of 
Scotland,  speaking  with  similar  feelings  of  attachment  to  it, 
which  are  observable  in  our  Swinbum,  when  he  talks  of  the 
[*91]  Eepealing  Statute  o£  Edward  VL  as  being  worthily  *and 


R.  a  VOL.  XVII.]  MAREUGE.  35 

ITo.  1. — Salzymi^  t.  Salzymplo,  S  Hagg.  Chmft  91,  02. 

for  good  reasons  enacted,  though  a  regard  to  domestic  security 
has  induced  us  to  extinguish  it  entirely  in  this  part  of  the  island 
by  the  legislative  provisions  of  later  times.  Mr.  Hutcheson 
mentions  it  as  a  fact,  that  in  the  case  of  M*Adam,  against 
Walker,  none  of  the  Judges,  who  dissented  from  the  judgment, 
disputed  that  doctrine  of  the  law.  His  testimony  to  such  a  fact 
is  equivalent  to  that  of  any  person  of  unimpeached  credit  —  even 
to  that  of  Lord  Stair  or  Mr.  Erskine;  he  has  asserted  it  in  the 
face  of  his  profession  and  the  public,  and  at  the  hazard  of  being 
contradicted,  if  he  has  stated  it  untruly,  by  the  united  voice  of 
the  whole  bench  and  bar  of  his  country. 

In  support  of  the  opposite  opinion,  no  ancient  writer  of  author- 
ity has  been  cited.  The  only  writer  named  is  of  very  modem 
date.  Lord  Kaimes,  a  man  of  an  ingenious  and  inquisitive  turn  of 
mind,  and  of  elegant  attainments,  but  whose  disposition,  as  he 
admits,  did  not  lead  him  to  err  on  the  side  of  excessive  deference 
to  authority  and  establishment  The  very  title  of  his  book  is 
suificient  to  excite  caution ;  *"  Elucidations  respecting  the  law  of 
Scotland  **  may  seem  to  imply  rather  proposed  improvements  than 
expositions  of  the  existing  law.  He  says,  in  his  preface,  that 
"  he  brings  into  the  work  the  sceptical  spirit,  wishing  and  hoping 
to  excite  it  in  others,  and  confesses  that  he  had  perhaps  indulged 
it  too  much. '  But  supposing  that  it  is  liable  to  no  objection  of 
this  kind,  the  whole  of  his  chapter  on  these  subjects,  so  far  as  this 
question  is  concerned,  relates  entirely  to  the  effect  of  a  promise  de 
futuro  cum  copuld,  which  has  no  application  to  the  present  case, 
unless  it  is  assumed,  that  this  amounts  to  the  same  thing 
identically  in  *  law,  to  all  intents  and  purposes,  as  a  con-  [*  92] 
tract  de  prcesenti.  I  must  add  that  his  extreme  inaccuracy, 
in  what  he  ventures  to  state  with  respect  both  to  the  ancient  canon 
law  and  to  the  modem  English  law,  tends  not  a  little  to  shake 
the  credit  of  his  representations  of  all  law  whatever.  In  this 
chapter  (p.  32)  he  asserts  that  by  the  present  law  of  England,  a 
mutual  promise  of  marriage  de  futuro  is  a  good  foimdation  to  com- 
pel a  refractory  party  to  complete  the  marriage,  by  process  in  the 
Spiritual  Court  I  mean  no  disrespect  to  the  memory  of  that 
ingenious  person  when  I  say,  that  it  is  an  extraordinary  fact  that 
it  should  have  been  a  secret  to  any  man  of  legal  education  in  any 
part  of  this  island,  that  the  law  of  England  has  been  directly  the 
reverse  for  more  than  half  a  century. 


36  MAftBIAGE. 


Vo.  1. — Dalrymple  t.  Salzymple,  2  Hagg.  Chmft  9S-M. 

No  other  reference  to  any  known  writer  of  eminence  is  pro- 
duced ;  it  is  easy,  therefore,  to  strike  the  balance  upon  this  class 
of  authorities ;  they  are  all  in  one  scale,  a  very  ponderous  mass  on 
one  side,  and  totally  unresisted  on  the  other. 

I  come,  thirdly,  to  the  last  and  highest  class  of  authorities,  that 
of  cases  decided  in  the  Scotch  tribunals.  — Many  of  these  have 
been  alluded  to  in  the  learned  expositions  which  have  been 
quoted,  but  such  of  them  (and  they  are  not  few  in  number)  as 
apply  to  the  cases  of  promises  de  future  cum  copuld  I  dismiss  for 
the  present,  observing  only,  that  if  a  promise  of  this  kind  be 
equivalent  to  a  contract  de  prcesenti  nudis  Jinibua,  the  result  oi 
those  cases  appears  to  me  strongly  to  incline  to  the  conclusion 

deduced  from  the  two  former  classes  of  authority. 
[*  93]       *With  regard  to  decided  cases,  I  must  observe  generally, 
that  very  few  are  to  be  found,  in   any  administration     of 
law  in  any  country,  upon  acknowledged  and  settled  rules.     Six^^li 
rules  are  not  controverted  by  litigation,  they  are   therefore   »i^ot 
evidenced  by  direct  decision :  tliey  are  found  in  the  maxims  e^-^xid 
rules  of  books  of  text-law.     It  would  be  difficult,  for  instance,         to 
find  an  English  case  in  which  it  was  directly  decided,  that  lii^he 
heir  takes   the  real,  and   the  executor  the  personal   estate;     ^^et 
though  nothing  can  be  more  certain,  it  is  only  incidentally^       ^tnd 
obiter,  that  such  a  matter  can  force  itself  upon  any  recorded  oT::;-^^^^- 
vation  of  a  Court;  equally  difficult  would  it  be  to  find  a  liti^;',^^^^^^ 
case  in  the  canon  law,  establishing  the  doctrine,  that  a  con  ^"^^-^ract 
per  verba  de  prcesenti  is  a  present  marriage,  though  none  is   "^^^^ore 
deeply  radicated  in  that  law. 

The  case  of  CocJirane  v.  Udmonston,  before  the  Court  of  S^^  —.^i^^ 
in  the  year  1804,  was  a  case  of  contract  de  prcesenti,  and  of       -Crj-vis  I 
shall  take  the  account  given   by  Mr.  Clerk.     The  Court 
held,  "  that  a  written  acknowledgment  de  prceserUi  was  suf 
to  constitute  a  marriage.     The  interlocutor  of  the  Lord  Ord^,.^^ 
which  the  Court  adhered  to,  rests  upon  the  consent  of  par^^^.      ^' 
constitute  a  marriage  de  prcpsenti  without  referring  to  the  c^^^r:^         /     » 
Mr.  Clerk  says,  *  he  cannot  suppose  the  Court  overlooked  t^^J^^^^'^ 
material   circumstance  of   the  copula,"*  which   did  exist      ^^  ^ 

case,  and  which  he  says  '  would  have  been  sufficient  witt:^^ 


promise  to  bind  the  man  to  marriage. "  — I  find  great  diffic.^;^^ 

acceding  to  this  observation,  particularly  when  it  ^  a 

[*  94]   that  the  Court  adhered  to  the  interlocutor,  *  ^^i^v        ^^  stated 


B.  C.  VOL.  XVII.]  MARKIAGE.  37 

ITo.  1.  —  Dftbyapto  t.  Dtbyapk,  S  Hagg.  Const.  94,  95. 

the  directly  contrary  doctrine,  and  even  if  it  had  not  so  done,  it 
appears  to  me  to  be  an  inaccuracy  too  striking  to  attribute  to  that 
Court,  that  they  should  have  declared  consent  deprcesenti  sufficient, 
without  express  mention  of  the  copula,  if  they  had  thought  it  a 
necessary  ingredient  in  the  validity  of  the  marriage.  What  Mr. 
Clerk  says  of  his  disposition  to  advise  an  appeal,  in  particular 
cases,  is  not  necessary  to  be  noticed  in  the  present  consideration, 
which  regards  only  actual  decisions,  and  not  private  opinions, 
however  respectabla  He  admits  expressly,  that  on  the  evidence 
of  the  report,  he  thinks  it  at  least  highly  probable,  that  some 
such  doctrine  as  that  held  by  Mr.  Erskine,  was  laid  down  in  that 
case  by  the  Judges. 

The  next  case  which  I  shall  mention  is  that  of  Taylor  and 
Kelloy  which  occurred  in  1786.  This  was  an  action  of  declarator 
of  marriage  instituted  by  Patrick  Taylor  against  Agnes  Kello,  and 
was  grounded  on  a  written  acknowledgment  in  the  following 
words :  "  I  hereby  declare  you,  Patrick  Taylor,  in  Birkenshaw,  my 
just  and  lawful  husband,  and  remain  your  affectionate  wife,  Agnes 
Kello.  *  Kello  delivered  this  written  declaration  to  Taylor,  and 
received  from  him  another  mtUatis  mutandis  in  the  same  terms, 
which  she  afterwards  destroyed.  There  was  no  sufficient  evidence 
to  support  the  conctibitus,  but  the  Beport  states,  that  the  Court,  in 
its  decision,  held  this  to  be  out  of  the  question.  The  Commis- 
saries *  foimd  the  mutual  obligations  relevant  to  infer  marriage 
between  the  parties,  and  found  them  married  persons  accordingly. " 
This  sentence  was  affirmed  by  the  Court  of  Session,  though 
that  Court  was  *  much  divided  upon  the  occasion,  some  of  [*  95] 
the  Judges  considering  the  declaration  as  merely  intended 
to  signify  a  willingness  to  enter  into  a  regular  marriage ;  but  a 
majority  of  the  Court  thought,  in  conformity  to  the  judgment  of 
the  Commissaries,  that  the  marriage  was  sufficiently  established. 
This  sentence  was  reversed  by  the  House  of  Lords,  but  upon  the 
express  grounds  that  neither  of  the  parties  understood  the  papers 
respectively  signed  by  them  to  contain  a  final  agreement  to  con- 
sider themselves  as  married  persons;  on  the  contrary  it  was 
agreed  that  the  writing  was  to  be  delivered  up  whenever  it  was 
demanded :  the  whole  subsequent  conduct  of  the  parties  proving 
this  sort  of  agreement. 

It  appears  then  that  this  was  not  considered  by  the  House  of 
Lords  an  irrevocable  contract,  such  as  that  of  marriage  is  in  its 


38  MARRIAGE. 

Vo.  1.  —  IMijnple  v.  Dalrym]^,  2  Hagg.  Cooit.  96,  90. 

own  nature,  from  which  the  parties  cannot  resile  even  by  joint 
coiisent,  much  less  on  the  demand  of  one  party  only.  This  case, 
I  think,  goes  strongly  to  afl&rm  the  doctrine,  that  an  irrevocable 
contract  de  prcesenti  does  of  itself  constitute  a  legally  valid  mar- 
riage. Mr.  Gathcart  admits,  in  his  deposition,  that  this  sentence 
of  the  Commissaries,  confirmed  by  the  Court  of  Session,  would 
have  been  a  decision  in  favour  of  the  doctrine,  that  a  contract  de 
prcBsenti  constitutes  a  marriage,  if  it  had  not  been  reversed  by 
the  House  of  Lords.  But  as  it  was  clearly  reversed  upon  other 
grounds,  the  authority  of  the  two  Courts  stands  entire  in  favour  of 
the  doctrine.  Mr.  Gillies  thinks  the  reversal  hostile  to  the  doc- 
trine, but  he  has  not  favoured  the  Court  with  the  grounds  on 
which  he  entertains  this  opinion.  Mr.  Clerk  contents  himself 
with  saying,  that  the  doctrine  is  not  recognised;  most 
[*96]  *  assuredly  it  is  not  disclaimed;  on  the  contrary,  the 
presumption  is,  that  if  the  contract  had  been  considered 
irrevocable,  the  House  of  Lords  would  have  attributed  to  it  a  very 
different  effect 

In  the  case  of  Inglis  against  Bobertson,  which  was  decided  in 
the  same  year,  the  Commissaries  sustained  a  marriage  upon  a  con- 
tract de  prcesenti,  and  this  sentence  was  afSrmed  by  the  Court  of 
Session  upon  appeal,  and  afterwards  by  the  House  of  Lords.  The 
accounts  vary  with  respect  to  the  proof  of  coTicubitus  in  this  case, 
which  renders  it  doubtful  whether  the  decision  was  grounded  on 
the  acknowledgment  only,  or  referred  likewise  to  the  copula.  If 
it  had  no  such  reference,  then  it  is  a  case  directly  in  point ;  but 
if  it  had,  it  certainly  cannot  be  insisted  upon  as  authority  upon 
the  present  question. 

The  case  of  Ritchie  and  Wallace,  which  was  before  the  Court  of 
Session  in  1792,  is  not  reported  in  any  of  the  books,  but  is  quoted 
by  Mr.  Hamilton,  who  was  of  counsel  in  the  cause.  It  was  the  case 
of  a  written  declaration  of  an  existing  marriage,  but  accompanied 
with  a  promise  that  it  should  be  celebrated  in  the  church  at  some 
future  and  convenient  time.  This  very  circumstance  of  a  provi- 
sion for  a  future  public  celebration  might  of  itself  have  raised  the 
question,  in  the  minds  of  some  Judges,  whether  these  acknowledg- 
ments could  be  considered  as  relating  to  a  matrimonial  contract 
already  formed  and  perfected  in  the  contemplation  of  the  parties 
themselves ;  and  this  is  sufficient  to  account  for  the  diversity  of 
the  opinion  of  the  Judges  upon  the  case,  without  resorting  to  any 


B.  C.  VOL.  XVn.]  MARRIAGE.  39 

Vo.  1. — Salzymile  t.  Dalrymple,  8  Hagg.  Comt.  M-98. 

supposed  difference  of  opinion  on  the  general  principle  of 
law  now  controverted.  The  woman  was  *  pregnant  by  the  [*97] 
man  when  she  received  this  written  declaration  from  him, 
but,  as  I  understand  the  case,  nothing  rested  in  judgment  upon 
this  fact;  for  Mr.  Hamilton  says,  the  woman  founded  on  the 
written  acknowledgment  as  a  declaration  de  prcesenti  constitut- 
ing a  marriage,  which  conclusion  of  law  was  controverted  by  the 
man ;  but  the  Court,  by  a  majority  of  six  Judges  to  three,  found 
the  acknowledgment  libelled,  relevant  to  infer  the  marriage. 

The  case  of  M'Adam  against  Walker  (13th  of  November,  1806), 
which  underwent  very  full  discussion,  is  by  all  parties  admitted 
to  be  a  direct  decision  upon  the  point,  though  it  was  certainly 
attended  with  some  difference  of  opinion  amongst  the  Judges  by 
whom  it  was  decided.  In  that  case  Elizabeth  Walker  had  co- 
habited with  Mr.  M'Adam,  and  borne  him  two  daughters.  In  the 
presence  of  several  of  his  servants,  whom  he  had  called  into  the 
room  for  the  purpose  of  witnessing  the  transaction,  he  desired 
Elizabeth  Walker  to  stand  up  and  give  him  her  hand ;  and  she 
having  done  so,  he  said,  "  This  is  my  lawful  wife,  and  these  my 
lawful  children. "  On  the  same  day,  without  having  been  alone 
with  Walker  during  the  interval,  he  put  a  period  to  his  existence. 
The  Court  held  the  children  to  be  legitimate.  It  appears  clearly 
that,  in  this  case,  there  had  been  a  copula  antecedent,  though 
none  could  have  taken  place  subsequent  to  the  declaration.  It 
could  not  therefore  have  been  upon  the  ground  of  want  of  copula 
that  Sir  Hay  Campbell,  who  holds  a  prior  copula  as  good  as  a 
subsequent  one,  joined  the  minority  in  resisting  that  judgment 
It  is  stated  by  Mr.  Hutcheson,  as  a  matter  of  fact,  that 
*  none  of  the  Judges  disputed  *  the  law, "  but  there  were  [♦  98] 
other  grounds  of  dissent  arising  out  of  the  circumstances  of 
the  case,  unconnected  with  the  legal  question.  "  The  Judges 
entertained  doubts  of  the  sanity  of  Mr.  M'Adam  at  the  time  of  the 
marriage ;  they  considered  also,  that  when  he  made  the  declaration 
he  had  formed  the  resolution  of  suicide,  and  therefore  did  not 
mean  to  live  with  the  woman  as  his  wife. "  It  is  said  that  this 
decision  of  the  Court  of  Session  is  appealed  from,  and  therefore 
cannot  be  held  conclusive  upon  the  point  At  any  rate  it  expresses 
the  judgment  of  that  Court  upon  the  principle,  and  the  appeal, 
whatever  the  ground  of  it  may  be,  does  not  shake  the  respect 
which  I  owe  to  that  authority  whilst  it  exists  unshaken. 


40  MARRIAGE. 

Ho.  1.  — Dakymple  t.  Dalrymple,  2  Hagg.  Comt.  98,  99. 

I  might  here  call  in  aid  the  Qumerous  cases  where  promise  cwm 
copuld  has  been  admitted  to  constitute  a  marriage,  if  the  rule  of 
the  canon  law,  transfused  into  the  law  of  Scotland,  be  sound, 
that  copula  converts  a  promise  defuturo  into  a  contract  de  prceserUi, 
If  it  does  not,  if  copula  is  required  in  a  contract  de  prassenti^ 
what  intelligible  difference  is  there  between  the  two  —  between  a 
promise  de  futuro  and  a  contract  de  prcesenti  I  —  None  whatever. 
They  stand  exactly  upon  the  same  footing.  — A  proposition,  I 
will  venture  to  say,  never  heard  of  in  the  world,  except  where 
positive  regulation  has  so  placed  them,  till  these  recent  contro- 
versies respecting  the  state  of  the  marriage  law  of  Scotland. 

I  might  also  advert  to  the  marriages  at  Gretna  Green,  where 
the  blacksmith  supplies  the  place  of  the  priest  or  the  magistrate. 
The  validity  of  these  marriages  has  been  affirmed  in  England 
[*  99]  upon  the  *  certificates  of  Scotch  law,  without  reference  to 
any  act  of  consummation,  for  such  I  think  was  clearly  the 
exposition  of  the  law  as  contained  in  the  opinion  of  Sir  Hay 
Campbell,  upon  which  the  English  Court  of  Chancery  founded  its 
decision  in  the  case  of  Grierson  and  Orierson, 

What  are  the  cases  which  have  been  produced  in  contradiction 
to  this  doctrine  ?  —  As  far  as  I  can  judge,  none,  —  except  cases 
similar  to  those  which  have  been  already  stated,  where  the  Superior 
Court  have  overruled  the  decisions  of  the  Court  below,  and  pro- 
nounced against  the  marriage,  upon  grounds  which  leave  the 
principle  perfectly  untouched.  —  The  case  of  McLauchlan  contra 
Dobson,  in  December,  1796,  was  a  case  of  contract  per  verba  de 
prcesenti  where  there  was  no  copula,  in  which  the  Commissaries 
declared  for  the  validity  of  the  marriage,  and  the  interlocutor 
was  altered  by  the  Court  of  Session.  But  upon  what  grounds  was 
that  sentence  reversed  ?  Mr.  Hutcheson  states,  that  "  the  Court 
did  not  think  there  was  sufficient  evidence  of  a  real  de  prcesenti 
matrimonial  consent. "  Mr.  Hume  says,  "  the  conduct  of  the  parties 
had  been  variable  and  contradictory ; "  and  Sir  Hay  Campbell  says, 
"  there  were  circumstances  tending  to  show  that  the  parties  did  not 
truly  mean  to  live  together. "  The  dicta  of  Lord  Justice  Clerk 
McQueen  have  been  quoted  and  much  relied  upon;  but  I  must 
observe,  that  they  come  before  the  Court  in  a  way  that  does  not 
entitle  them  to  much  judicial  weight;  they  are  stated  by  Mr. 
Clerk  to  be  found  in  notes  of  the  handwriting  of  Mr.  Henry 
Erskine,  who  is  not  himself  examined  for  the  purpose  of  authenti- 


B.  C.  VOL.  XVll.]  MARRIAGE.  41 

ITo.  1. — Salzymple  v.  SalzympU,  2  Hagg.  Ckmit  9^101. 

eating  them,  although  interrogatories  are  addressed  to  other 
*  persons  with  respect  to  other  legal  authorities,  for  which  [*  100] 
they  are  much  less  answerable.  They  are  taken  very 
briefly,  without  any  context,  nor  is  it  stated  in  what  manner, 
whether  in  the  form  of  discussion  or  decision,  they  fell  from  that 
learned  Judge.  He  is,  however,  made  to  say,  "  The  case  of 
McLa%ichlan  against  Dob$on  is  new,  but  the  law  is  old  and  settled. 
Two  facts  admitted  hinc  inde^  no  celebration,  no  conctibitics,  nor 
promise  of  marriage  followed  by  copvla ;  contract  as  to  land  not 
binding  till  regularly  executed,  unless  where  res  nan  sunt  integrcc  * 
This  proposition  that,  "*  contract  as  to  land  not  binding  till  regu- 
larly executed, "  proves  little,  because  it  may  refer  to  rules  that 
are  confined  to  agreements  respecting  that  species  of  property,  and 
even  with  regard  to  that  species  of  property  the  contract  may  be 
sufficiently  executed  by  the  signing  of  articles  or  deeds,  though 
there  is  no  entry  upon  the  land.  *^  A  promise  without  copula 
locus  pcenitentice  —  even  verbal  consent  de  prcesenti  admits  posni- 
tentia,  *  —  that  is  the  matter  to  be  proved.  **  Form  of  contracts 
contains  express  obligation  to  celebrate ;  till  that  done  either  party 
may  resila  "  —  The  reason  is  that  these  same  forms  contain  words 
which  qualify  the  present  engagement  by  giving  them  a  mere 
promissory  effect  "  Private  consent  is  not  the  consensus  the  law 
looks  to.  It  must  be  before  a  priest  or  something  equivalent; 
they  must  take  the  oath  of  God  to  each  other ; "  this  may  be  done 
in  private  to  each  other,  as  it  actually  was  done  in  the  case  of 
Zord  Fitzmaurice :  '  a  present  consent  not  followed  by  anything 
may  be  mutually  given  up,  but  if  so,  it  cannot  be  a  mar- 
riage. '  To  be  sure  if  the  propositions  contained  ♦  in  these  [*  101] 
dicta  are  correct,  if  it  be  true  that  a  contract  de  prcBsenti 
may  be  mutually  given  up,  then  certainly  it  cannot  constitute  a 
marriage ;  but  that  is  the  very  question  which  is  now  to  be  deter- 
mined upon  the  comparative  weight  of  authorities;  I  admit  the 
authority  of  Lord  Braxfield,  deliberately  and  directly  applied  to 
any  proposition  to  which  his  mind  was  addressed,  to  be  entitled 
to  the  highest  respect ;  but  I  have  already  adverted  to  the  loose 
manner  in  which  these  dicta  are  attributable  to  him,  and  it  is 
certainly  a  pretty  strong  circumstance  against  giving  full  effect  to 
these  dicta  so  introduced,  without  context  and  without  authen- 
tication, that  Lord  Braxfield,  as  Lord  Ordinary,  refused  the  Bill 
of  Advocation  in  the  case  of  Taylor  and  Kello  complaining  of  the 


42  MARRIAGE. 


Vo.  1.  —  Dabymi^  v.  IHdxyniple,  2  Hagg.  Ckmst.  101, 102. 

sentence  of  the  Consistorial  Court,  which  found  "  mutual  obliga- 
tions relevant  to  infer  a  marriage. " 

The  other  case  that  has  been  mentioned,  is  that  of  Mclnnes 
against  More,  which  came  before  the  House  of  Lords  upon  appeal 
in  the  year  1782.  The  facts  therein  were,  that  the  man,  at  the 
woman's  desire,  had  signed  the  acknowledgment  not  for  the  pur- 
pose of  making  a  marriage,  but  merely  as  a  colour  to  serve  another 
and  different  purpose  mutually  concerted  between  them,  namely, 
that  of  preventing  the  disgrace  arising  from  the  pregnancy  of  the 
woman.  The  Commissaries  and  the  Court  of  Session  had  found 
the  facts  relevant  to  infer  a  marriage,  but  the  House  of  Lords, 
considering  the  transaction  as  a  mere  blind  upon  the  world,  and 
that  no  alteration  of  the  status  personarum  was  ever  intended  by 
the  parties  themselves,    reversed  the  sentence,  and  pronoimced 

against  the  marriage. 
[*  102]       *  I  am  not  aware  of  any  other  decided  cases  which  have 

been  produced  against  the  proposition,  that  a  contract  de 
prcesenti  (be  it  in  the  way  of  declaration  or  acknowledgment) 
constitutes,  or,  if  you  will,  evidences  a  marriage.  It  strikes  me, 
upon  viewing  these  cases,  that  such  of  them  as  are  decided  in  the 
affirmative,  have  been  adjudged  directly  upon  this  principle,  and 
that  where  they  have  been  otherwise  determined,  it  turns  out  that 
they  have  rested  upon  specialties,  upon  circumstances  which  take 
them  out  of  the  common  principle,  and  produce  a  determination 
that  they  do  not  come  within  it.  If  they  do  not  go  directly  to 
the  extent  of  affirming  the  principle,  they  at  least  imply  a  recog- 
nition of  it,  a  sort  of  tacit  assent  and  submission  to  its  authority, 
an  acknowledgment  of  its  being  so  deeply  intrenched  in  the  law, 
as  not  to  be  assailable  in  any  general  and  direct  mode  of  attack. 
The  exceptions  prove  the  rule  to  a  certain  degree.  It  was  proved 
in  all  those  cases  where  there  was  a  judgment  apparently  contra- 
dictory, that  in  truth  they  were  not  real  matrimonial  contracts  de 
prcesenti.  The  effect  was  not  attributed  to  them,  because  they 
were  not  considered  as  such  contracts.  I  cannot  but  think,  that 
when  case  upon  case  came  before  the  House  of  Lords,  in  which 
that  principle  was  constantly  brought  before  their  eyes,  they 
would  have  reprobated  it  as  vicious  if  they  had  deemed  it  so, 
instead  of  resorting  to  circumstances  to  prove  that  the  principle 
could  not  be  applied  to  them.  I  may,  without  impropriety,  add, 
that  the  Lord  Chancellors  of  England  have  always,  as  I  am 


B.  C.  VOL  XVII.]  MARRIAGE.  43 

Vo.  1.  —  Daliymi^  t.  Dtbyaple,  S  Hagg.  Ckmst.  100-104^ 

credibly  informed,  in  stating  their  understanding  of  Scotch  law 
upon  such  subjects  to  the  House  of  Lords,  particularly 
Lord  *Thurlow,  been  anxious  to  hold  out  that  law  to  be  [♦103] 
strictly  conformable  to  the  canonical  principles,  and  have 
scrupulously  guarded  the '  expressions  of  the  public  judgments 
of  the  House,  against  the  possible  imputation  of  admitting  any 
contrary  doctrine. 

Upon  the  whole  view  of  the  evidence  applying  to  this  point, 
looking  first  to  the  rule  of  the  general  matrimonial  law  of  Europe ; 
to  the  principle  which  I  venture  to  assume,  that  such  continues 
to  be  the  rule  of  Scotch  matrimonial  law,  where  it  is  not  shown 
that  that  law  hae  actually  resiled  from  it;  to  the  opinions  of 
eminent  professors  of  that  law ;  to  the  authority  of  text  writers ; 
and  to  the  still  higher  authority  of  decided  cases  (even  without 
calling  in  aid  all  those  cases  which  apply  a  similar  rule  to  a 
promise  cum  copuld),  —  I  think  that  being  compelled  to  pronounce  a 
judgment  upon  this  point,  I  am  bound  to  say,  that  I  entertain  as 
confident  an  opinion  as  it  becomes  me  to  do,  that  the  rule  of  the 
law  of  Scotland  remains  unshaken ;  that  the  contract  de  prcesenti 
does  not  require  consummation  in  order  to  become  "  very  matri- 
mony ; "  that  it  does,  ipso  facto  et  ipso  jure,  constitute  the  relation 
of  man  and  wife.     There  are  learned  and  ingenious  persons  in  that 
country,  who  appear  to  think  this  rule  too  lax,  and  to  wish  to 
bring  it  somewhat  nearer  to  the  rule  which  England  has  adopted ; 
but  on  the  best  judgment  which  I  can  form  upon  the  subject,  it  is 
an  attempt  against  the  general  stream  of  the  law,  which  seems  to 
run  in  a  direction  totally  diflferent,  and  is  not  to  be  diverted  from 
its  course  by  efforts  so  applied.     If  it  be  fit  that  the  law  of  Scot- 
land should  receive  an  alteration,  of  which  that  country 
itself  is  the  *  best  judge,  it  is  fit  that  it  should  receive  [*  104] 
that  alteration  in  a  different  mode  than  that  of  mere 
interpretation. 

When  I  speak  of  a  contract,  I  mean  of  course  one  that  is 
attended  with  such  qualifications  as  the  law  of  Scotland  requires 
for  such  a  contract,  and  which  in  truth  appear  to  me  to  be  very 
little  more  than  what  all  law  requires  for  all  contracts  of  every 
description,  and  without  which  an  apparent  contract  upon  any 
subject  is,  in  truth,  no  contract  at  all ;  for  having  been  led,  by 
the  manner  in  which  these  qualifications  are  sometimes  described, 
to  suppose  at  first,  that  they  were  of  a  peculiar  and  characteristic 


44  MARRIAGE. 


Vo.  1. — Dalrymplo  ▼.  Baliympls,  S  Hftgg.  Oonit.  104, 105. 

nature,    I  really  cannot,    upon  consideration,  discover  in  them 
anything  more  than  the  ordinary  qualifications  requisite  in  all 
contracts.     It   is  said  that  the   marriage  contract  must  not  be 
extorted  by  force  or  fraud.     Is  it  not  the  general  law  of  contracts, 
that  they  are  vitiated  by  proof  of  either  ?    In  the  present  case, 
menace  and  terror  are  pleaded  in  Mr.  Dairy mple's  allegation  as  to 
the  execution  of  the  first  contract  No.  2,  for  as  to  the  promise  No. 
I,  he  admits  that  it  was  given  merely  at  the  entreaties  and  insti- 
gation of  the  lady  (an  admission  not  very  consistent  with   the 
suggestion  of  the  terror  afterwards  applied),  but  he  asserts  that  he 
executed  this  contract,  **  being  absent  from  his  regiment,  without 
leave,  alone  with  her,  and  unknown  to  her  father,  and  urged  by 
her  threats  of  calling  him  in.  *  —  What  was  to  be  the  effect  of 
calling  in  the  father,  which  produced  so  powerful  an  impression 
of  terror  in  his  mind,  he  does  not  explain;  still  less  does   he 
attempt  to  prove  the  fact,  for  he  has  not  read  the  only  evidence 

that  could  apply  to  it,  the  sworn  answers  of  the  lady  to 
[*  105]  *  this  statement  of  a  transaction  passing  secretly  between 

themselves,  and  in  which  answers  it  is  positively  denied. 
This  averment  of  menace  and  terror  is  perfectly  inconsistent  with 
everything  that  follows ;  with  the  reiterated  declaration  contained 
in  No.  10,  and  with  the  letters  which  he  continued  to  write  in  the 
same  style  for  a  year  afterwards.  Could  the  paper  No.  10  have 
been  executed  by  a  man  smarting  under  the  atrocious  injury  of 
having  been  compelled  by  menaces  to  execute  one  of  the  like 
import  ?  Could  these  letters,  breathing  sentiments  of  unalterable 
fondness,  have  been  addressed  to  the  person  by  whom  he  had  been 
so  treated  ?  Nothing  can  be  apparently  more  unfounded  than  this 
suggestion  of  menace  and  terror.  It  is  said  that  it  must  be  a 
deliberate  contract.  It  is,  I  presume,  implied  in  all  contracts, 
that  the  parties  have  taken  that  time  for  consideration  which  they 
thought  necessary,  be  that  time  more  or  less,  for  nowhere  is  there 
assigned  a  particular  tempus  deliberandi  for  the  marriage  contract, 
any  more  than  for  any  other  contract 

It  is  said  that  it  must  be  serious :  so  surely  must  be  all  con- 
tracts ;  they  must  not  be  the  sports  of  an  idle  hour,  mere  matters 
of  pleasantry  and  badinage,   never  intended   by   the  parties  to 
have  any  serious  effect  whatever;  at  the  same  time  it  is  to  b^ 
presumed,    that  serious   expressions,   applied   to  contracts  of  so 
serious  a  nature  as  the  disposal  of  a  man  or  woman  for  life,  har^ 


B.  C.  VOL.  XVII.]  MARRIAGE.  45 

Vo.  1.  —  Dalrymple  ▼.  DAlrymplo,  S  Hftgg.  Comit.  106-107. 

a  serious  import     It  is  not  to  be  presumed  a  priori,  that  a  man 
is  sporting  with  such  dangerous  playthings  as  marriage  engage- 
ments.    Again  it  is  said  that  the  animtis  eontrahentium  must 
be  regarded :  Is  that  peculiar  to  the  marriage  contract  ?    It 
is  in  the  intention  of  the  *  parties  that  the  substance  of  [*  106] 
every  species  of  contract  subsists,  and  what  is  beyond  or 
adverse  to  their  intent  does  not  belong  to  the  contract     But  then 
that  intention  is  to  be  collected  (primarily  at  least)  from  the 
words  in  which  it  is  expressed;  and  in  some  systems  of  law,  as 
in  our  own,  it  is  pretty  exclusively  so  to  be  collected.     You  are 
not  to  travel  out  of  the  intention  expressed  by  the  words,  to  sub- 
stitute an  intention  totally  different  and  possibly  inconsistent 
with  the  words.     By  the  matrimonial  law  of  Scotland  a  latitude 
is  allowed,  which  to  us  (if  we  had  any  right  to  exercise  a  judg- 
ment on  the  institutions  of  other  countries  with  which  they  are 
well  satisfied)  might  appear  somewhat  hazardous,  of  substituting 
another  serious  intention  than  that  which  the  words  express,  to  be 
proved  by  evidence  extrinsic,  and  totally,  as  we  phrase  it,  dehors 
the  instrument     This  latitude  is  indulged  in  Scotland  to  a  very 
great  d^ree  indeed,    according  to  Mr.    Erskine.     In  all  other 
countries  a  solemn   marriage   in  facie  Ecclesice  facit  fdem ;  the 
parties  are   concluded  to  mean  seriously,    and  deliberately,  and 
intentionally,  what  they  have  avowed  in  the  presence  of  Grod  and 
man,  under  all  the  sanctions  of  religion  and  of  law;  —  not  so  in 
Scotland,  where  all  this  may  pass,  as  Mr.  Erskine  relates,  and  yet 
the  parties  are  at  liberty  to  show,  that  by  virtue  of  a  private 
understanding  between  themselves,  all  this  is  mere  imposition 
and  mockery,  without  being  entitled  to  any  effect  whatever. 

But  be  the  law  so,  still  it  lies  upon  the  party,  who  impeaches 
the  intention  expressed  by  the  words,  to  answer  two  demands 
which  the  law,  I  conceive,  must  be  presumed  to  make  upon  him ; 
first,  he  must  assign  and  prove  some  other  intention ;  and 
•secondly,  he  must  also  prove  that  the  intention  so  alleged  [*  107] 
by  him,  was  fully  understood  by  the  other  party  to  the 
contract,  at  the  time  it  was  entered  into ;  for  surely  it  cannot  be 
represented  as  the  law  of  any  civilised  country,  that  in  such  a 
transaction  a  man  shall  use  serious  words,  expressive  of  serious 
intentions,  and  shall  yet  be  afterwards  at  liberty  to  aver  a  private 
intention,  reserved  in  his  own  breast,  to  avoid  a  contract  which 
was  differently  understood  by  the  party  with  whom  he  contracted. 


46  IfABRIAGE. 


Vo.  1.  —  Dalzymplo  ▼.  DAlrymplo,  S  Hftgg.  Comit.  107, 108. 

I  preaume,  therefore,  that  what  is  said  by  Mr.  Cragie  can  have 
no  such  meaning,  '*  that  if  there  is  reason  to  conclude,  from  the 
expressions  used,  that  both  or  either  of  the  parties  did  not  under- 
stand that  they  were  truly  man  and  wife,  it  would  enter  into  the 
question  whether  married  or  not, "  because  this  would  open  a  door 
to  frauds,  which  the  justice,  and  humanity,  and  policy  of  all  law 
must  be  anxious  to  keep  shut     In  the  present  case  no  other 
animus  is  set  up  and  endeavoured  to  be  substituted,  but  the 
animiis  of  avoiding  danger,  on  which  I  have  already  observed. 
The  assignment  of  that  intent  does  almost  necessarily  exclude  any 
other,  and  indeed  no  other  is  assigned ;  and  as  to  any  plea  that  it^ 
was  differently  understood  by  Miss  Gordon,  the  other  party  in  this 
cause,  no  such  is  offered,  much  less  is  any  proof  to  that  effect 
produced,  unless  it  can  be  extracted  from  the  letters. 

Do  they  qualify  the  express  contracts,  and  show  a  differexit 
intention,  or  understanding?    It  has  been  argued. that  they  co^^i. 
tain  some  expressions  which  point  to  apprehensions,  entertains ^4 
by  Miss  Gordon,  that  Mr.  Dalrymple  would  resile  from  t«rhe 
[*  108]  obligations  of  the  contract,  and  others  that  are  *  intenc^^^^ 
to  calm  those  apprehensions  by  promises  of  eternal  fi^     ^t 
ity,  both  which  it  is  said  are  inconsistent  with  the  supposiV     Iq^. 
that  they  had  knowingly  constituted  themselves  husbanck  a 

wife,  and  created  obligations  de  prcesenti,  from  which  neith^^^-^    * 
them  could  resile. 

In  the  first  place,  is   there  this  real  inconsistence?    Dc^     .-i 

records  of  this  Court  furnish  no  such  instance  as  that  of  the  ^^. 

^''"^^^fc.e  ser* 
tion  of  a  wife  by  her  husband?    And  is  such  an  occurr^:^^^ 

entirely  out  of  all  reasonable  apprehension   in  a  case   li)^^  ^ 

present?    Here   is  a  young  gentleman,  a  soldier,  likely-  , 

removed  into  a  country  in  which  very  different  ideas  of  m.  ^^^     . 

prevail,  amongst  friends  who  would  discountenance  this  o^ 

tion,  and  amongst  numerous  objects  which  might  divert  hi  ^^^^    ^ 

tions,  and  induce  him  to  repent  of  the  step  he  had  tak^ 


season  of  very  early  youth,  and  in  a  fit  of  transient  fondna*^^^"^^  ^^  * 
a  wife  left  in  that  country  exposed  to  the  chances  of  a  c  ^^>^^ '  That 
his  affections,  — to  the  effect  of  a  long  separation,  — to  t^^^-^^^^8®  ^^ 


probation  of  his  friends,  —  to  the  impressions  likely  to  ^^^^  disap- 
by  other  objects  upon  a  young  and  unsettled  mind,  shouV^  ^  inaae 
pate  some  degree  of  danger  is  surely  not  unnatural  ^  «^*^^^" 
natural  is  it,  that  he  should  endeavour  to  tpy«^,     ^^  ^   equally 

^^laove  thert^  by  these 


B.  a  vou  xvn.]  marriage.  47 

Vo.  1. — Dalxympto  ▼.  Baliymple,  S  Hftgg.  Ckmit  106-110. 

renewed  professions  of    constancy.     But  supposing    that    Miss 
Gordon  really  did  entertain  doubts  with  respect  to  the  validity  of 
her  marriage,  what  could  be  the  effect  of  such  doubts?    Surely 
not  to  annul  the  marriage,  if  it  were  otherwise  unimpeached.     We 
are,  at  this  moment,  inquiring  with  all   the  assistance  of  the 
learned  professors  of  law  in  that  country,  amongst  whom 
there  is  great  discordance  of  *  opinion,  what  is  the  effect  of  [*  109] 
such  contracts.     That  private  persons,   compelled  to  the 
necessity  of  a  secret  marriage,  might  entertain  doubts  whether 
they  had  satisfied  the  demands  of  a  law  which  has  been  rendered 
80  doubtful,  will  not  affect  the  real  sufficiency  of  the  measiures 
they  had  taken.     Mr.  Dalrymple  might  himself  entertain  honest 
doubts  upon  this  point ;  but  if  he  felt  no  doubt  of  his  own  mean- 
ing, if  it  was  his  intention  to  bind  himself  so  far  as  by  law  he 
could,  that  is  enough  to  sustain  the  contract;  for  it  is  not  his 
uninformed  opinion  of  law,  but  his  real  intention  that  is  to  be 
regarded.     A  public  marriage  was  impracticable ;  he  does  all  that 
he  can  to  effect  a  marriage,  which  was  clandestine,  not  only  at  the 
time,  but  which  was  intended  so  to  continue.     The  language  is 
clear-  and   unambiguous  in  the  expression  of  intent.     No  other 
intention   is  assigned:  and   it  is  not  such  expressions  as  these, 
arising  naturally  out  of  the  feelings  which  must  accompany  such 
a  transaction,  that  can  at  all  affect  its  validity. 

The  same  observations  apply  to  the  expressions  contained  in 
the  later  letters  written  to  Mr.  Hawkins.  In  one  of  them  she 
says,  *  My  idea  is,  that  he  is  not  aware  how  binding  his  engage- 
ments are  with  me, "  and  possibly  he  might  not  Still  if  he  meant 
at  the  time  to  contract  so  far  by  law  as  he  could,  no  doubts  which 
accompanied  the  transaction,  and  still  less  any  which  followed  it, 
can  at  all  alter  its  real  nature  and  effect  Miss  Gordon  had  like- 
wise her  later  hours  of  doubt,  and  even  of  despondency ;  "  you 
will  never  see  me  Mrs.  Dalrymple,"  she  says,  in  the  spring  of 
1807,  to  her  sister ;  and  when  it  is  considered  what  diffi- 
culties she  had  to  *  encounter,  at  what  an  immense  [*  110] 
distance  she  then  stood  from  the  legal  establishment  of 
her  claims,  having  lost  her  hold  upon  his  affections,  it  cannot  be 
matter  of  great  surprise  if,  in  the  view  of  a  prospect  so  remote  and 
cloudy,  some  expression  of  dismay  and  even  of  despair  should 
occasionally  betray  the  discomposure  of  her  mind.  As  to  what 
she  observes  upon  the  alternative  suggested  by  some  friend,  of  a 


48  MARRUGE. 


Vo.  1.  — Dalrymplo  ▼.  DAlrympla,  S  Hftgg.  Comit.  110,  111. 

large  sum  of  money  in  lieu  of  her  rights  (a  proposition  which  she 
indignantly  rejects),  it  seems  to  point  rather  to  a  corrupt  purchase 
of  her  silence,  than  to  any  idea  existing  in  her  mind  of  a  claim  of 
damages,  by  way  of  a  legal  solamen,  for  the  breach  of  a  mere 
promissory  contract 

The  declarations,  therefore,  not  being  impeached  by  any  of 
those  disqualifications  by  which,  in  the  law  of  Scotland,  a  con- 
tradictor is  permitted  to  redargue  and  overcome  the  presumption 
arising  from  the  production  of  such  instruments,  they  become,  in 
this  stage  of  the  matter,  prcesumptiones  juris  et  dejure  that  found 
an  instant  conclusion  of  marriage,  if  I  am  right  in  the  position 
that  carnal  copulation  is  not  absolutely  required  to  its  completion. 
The  fact  that  these  papers  were  left  in  her  single  possession  is 
insignificant,  for  it  has  well  been  observed  by  Dr.  Bumaby,  that 
it  is  not  mutuality  of  possession,  but  mutuality  of  intention,  that 
is  requisite.  It  is  much  more  natural  that  they  should  be  left  in 
the  possession  of  the  lady,  she  being  the  party  whose  safety  is  the 
more  special  object  of  protection,  but  there  is  no  proof  here,  that 
Mr.  Dalrymple  himself  is  not  possessed  of  a  similar  document. 
He  anxiously  requested  to  have  one,  and  the  non-production 
[*  111]  of  it  by  him  *  furnishes  no  conclusive  proof  that  he  did  not 
obtain  his  request.  If  he  did  not,  it  may  have  been  an 
act  of  imprudence  that  he  confided  the  proofs  of  his  marriage 
entirely  to  the  honour  of  the  lady ;  but  if  he  did,  it  is  perfectly 
clear  that  she  has  not  betrayed  the  trust. 

But  I  will  now  suppose  that  this  principal  position  is  wrong ; 
that  it  is  either  extracted  from  erroneous  authorities,  or  errone- 
ously extracted  from  authorities  that  are  correct.  I  will  proceed 
then  to  inquire  what  proof  there  is  of  carnal  copulation  having 
taken  place  between  the  parties;  and,  upon  this  point,  I  shall 
content  myself  with  such  evidence  as  the  general  law  requires 
for  establishing  such  a  fact ;  for  I  find  no  reference  to  any  author- 
ity to  prove  that  the  law  of  Scotland  is  more  rigid  in  its  demand, 
where  the  fact  is  to  be  established  in  support  of  a  marriage,  than 
for  any  other  purpose.  It  may  have  happened  that  the  fact  of 
carnal  copulation  has  been  established  by  a  pregnancy,  or  some 
other  evidence  of  as  satisfactory  a  kind,  in  the  few  cases  which 
have  been  transmitted  to  us,  but  I  find  no  such  exclusive  rule  as 
that  which  has  been  ingeniously  contended  for  by  Dr.  Edwards ; 
and  I  take  it  as  an  incontrovertible  position,  that  the  circum- 


B.  a  VOL.  xvil]  marriage.  49 

ITo.  1.  —  Saliymple  ▼.  Dalrymple,  2  Eagg.  Ckmit.  111-118. 

stances,  which  would  be  sufficient  to  prove  intercourse  in  any 
other  case,  would  be  equally  sufficient  in  this  case.  I  do  not 
charge  myself  in  so  doing,  with  going  farther  than  the  Scotch 
Courts  would  do,  and  would  be  bound  to  do,  attending  to  the 
established  rules  of  evidence. 

In  the  first  place  I  think  it  is  most  strongly  to  be  inferred  from 
the  paper,  No.  2,  that  some  intercourse  of  a  conjugal  nature 
passed  between  these  •parties.      Miss   Gordon    therein  [*112] 
says,  "  I  hereby  promise  that  nothing  but  the  greatest 

necessity  (necessity  which situation  alone  can  justify)  shall 

ever  force  me  to  declare  this  marriage. "  Now  what  other  pos- 
sible explanation  can  be  given  of  this  passage,  or  how  can  it  be 
otherwise  understood  than  as  referring  to  the  consequences  which 
might  follow  from  such  an  intercourse?  I  confess  that  I  find 
myself  at  a  loss  to  know  how  the  blank  can  be  otherwise  filled 
np  than  by  a  supposition  of  consequences  which  would  speak  for 
themselves,  and  compel  a  disclosure. 

I  observe  that  Mr.  Dalrymple  denies,  in  his  allegation,  that 
any  intercourse  took  place  after  the  date  of  the  written  declara- 
tions, which  leaves  it  still  open  to  the  possibility  of  intercourse 
before  that  time,  though  he  certainly  was  not  called  upon  to 
negative  a  preceding  intercourse,  in  consequence  of  any  assertion 
in  the  libel  which  he  was  bound  to  combat.  It  will,  I  think,  be 
proper  to  consider  the  state  of  mind  and  conduct  of  the  parties 
relatively  to  each  other  at  this  time.  Preliminary  verbal  declara- 
tions of  mutual  attachment  must  at  least  have  passed  (as  I  have 
already  observed)  before  the  promise  contained  in  No.  1  was 
written,  at  whatever  time  that  paper  was  written.  In  the  first 
letter,  which  bears  the  post-mark  of  the  27th  of  May,  whether 
relying  on  this  paper  if  it  then  existed,  or  on  declarations  which 
had  verbally  passed  between  them,  he  thinks  himself  entitled  to 
address  her  as  his  wife  in  the  most  endearing  terms.  On  the  fol- 
lowing day,  the  28th,  the  instrument  which  has  been  produced 
is  signed,  by  which  they  mutually  acknowledge  each  other  as 
husband  and  wife.  Letters  continue  to  pass  between  them 
*  daily,  and  sometimes  more  than  once  in  a  day,  expressive  [*  113] 
of  the  most  ardent  and  eager  affection  on  his  part,  which 
can  leave  no  room  for  the  slightest  doubt  that  he  was,  at  that 
time,  most  devotedly  attached  to  her  person,  and  desirous  of  the 
pleasures  connected  with  the  enjoyment  of  it,  in  some  way  or 

VOL.  XVII.  —  4 


50  MARRIAGE. 


Vo.  1.  —  Dalrympld  ▼.  Balrymple,  2  Hftgg.  Conit  113,  114. 

other  I  for  to  what  other  motive  can  be  ascribed  such  a  series  and 
style  of  letters  from  a  young  man,  writing  voluntarily,  without 
any  appearance  of  idle  pleasantry,  and  with  every  character  of  a 
sincere  pursuit,  whether  honourable  or  otherwise.  What  was  the 
state  of  mind  and  conduct  of  the  lady  during  this  period  of  time  ? 
It  is  not  to  be  presumed,  from  the  contents  of  his  letters,  that 
she  was  either  indiflferent  or  repulsive. 

The  imputation  indeed,  which  has  been  thrown  upon  her,  is  of 
a  very  different  kind ;  that  she  was  an  acute  and  active  female, 
who  with  a  knowledge  of  the  law  of  the  country,  which  Mr. 
Dalrymple  did  not  possess,  was  endeavouring  qudcunqibe  vid, 
datd,  to  engage  him  in  a  marriage.  To  this  marriage  she  has 
inflexibly  adhered,  and  now  stands  upon  it  before  this  Court;  so 
that  whatever  might  be  the  real  state  of  her  affections  towards 
this  gentleman  (which  can  be  known  only  by  herself),  this  at 
least  must  be  granted,  that  she  was  most  sincerely  desirous  of  this 
marriage  connection,  which  marriage  connection,  both  of  them 
perfectly  well  knew,  could  not  be  publicly  and  regularly  obtained. 
—  Taking  then  into  consideration  these  dispositions  of  the  parties, 
his  desire  to  obtain  the  enjoyment  of  her  person  on  the  one  hand, 
and  her  solicitude  to  obtain  a  marriage  on  the  other,  which  after 
the  delivery  of  such  instruments  she  knew  might  at  all 
[*  114]  *  events  be  effectually  and  honourably  obtained  by  the 
mere  surrender  of  her  person,  what  is  the  probable  conse- 
quence ?  In  this  part  of  the  island  the  same  circumstances  would 
not  induce  the  probability  of  a  private  surrender,  because  a  public 
ceremony  being  here  indispensably  required,  no  young  woman, 
acting  with  a  regard  to  virtue,  and  character,  and  common  pru- 
dence, would  surrender  her  person  in  a  way  which  would  not 
only  not  constitute  a  marriage,  but  would,  in  all  probability, 
defeat  all  expectation  of  such  an  event 

In  Scotland  the  case  is  very  different,  because,  in  that  country, 
if  there  are  circumstances  which  require  the  marriage  to  be  kept 
secret,  the  woman,  after  such  private  declarations  past,  carries 
her  virgin  honours  to  the  private  nuptial  bed,  with  as  much  purity 
of  mind  and  of  person,  with  as  little  violation  of  delicacy,  and 
with  as  little  loss  of  reputation,  as  if  the  matter  was  graced  with 
all  the  sanctities  of  religion.  It  is  in  vain  to  talk  of  criminality, 
and  of  grossness,  and  of  gross  ideas.  In  such  a  case  there  are  no 
other  ideas  excited  than  such  as  belong  to  matrimonial  intercourse. 


R.  C.  VOL.  XVII.]  MARRIAGE.  51 

Vo.  1.  —  Saliymple  ▼.  Dalrymple,  2  Hagg.  Const  114-116. 

It  is  the  "  bed  undefiled  "  according  to  the  notions  of  that  country ; 
it  is  the  actual  ceremony  as  vrell  as  the  substance  of  the  mar- 
riage ;  it  is  the  conversion  of  the  lover  into  the  husband :  transit  in 
matrimonium,  if  it  was  not  matrimonium  before.  A  most  forcible 
presumption  therefore  arises  that  parties  so  situated  would,  for  the 
purpose  of  a  secret  marriage,  resort  to  such  a  mode  of  effecting  it, 
if  opportunities  offered ;  it  must  almost,  I  think,  be  presumed, 
that  Mr.  Dalrymple*  was  in  that  state  of  incapacity  to 
enter  into  such  a  contract,  which  *  Lord  Stair  alludes  to,  if  [*  115] 
he  took  no  advantage  of  such  opportunities ;  for  nothing 
hut  the  want  of  opportunity  can  repel  such  a  presumption. 

Now  how  does  the  evidence  stand  with  respect  to  the  opportu- 
nity of  effecting  such  a  purpose  ?  The  connection  lasted  during  the 
whole  of  Mr.  Dalrymple's  stay  in  Scotland,  and  was  carried  on, 
not  only  by  letters  couched  in  the  most  passionate  terms,  but  as 
admitted  (and  indeed  it  could  not  be  denied),  by  nocturnal  private 
visits,  frequently  repeated,  both  at  Edinburgh,  and  at  Braid,  the 
country-seat  of  Mr.  Gordon,  in  the  neighbourhood  of  that  city. 
Upon  this  part  of  the  case  six  witnesses  have  been  examined,  who 
lived  as  servants  in  the  family  of  Mr.  Gordon.  Grizell  Lyall, 
whose  principal  business  it  was  to  attend  on  Miss  Charlotte  Gor- 
don, one  of  the  sisters,  but  who  occasionally  waited  on  Miss 
Gordon,  says,  **  that  Captain  Dalrymple  used  to  visit  in  Mr. 
Gordon's  family  in  the  spring  of  1804;  that  before  the  family  left 
Edinburgh  she  admitted  Captain  Dalrymple  into  the  house  by  the 
front  door,  by  the  special  order  of  Miss  Gordon,  in  the  evenings ; 
that  Miss  Gordon's  directions  to  her  were,  that  when  she  rung  her 
bell  once,  to  come  up  to  her  in  her  bed -room,  or  the  dressing- 
room  off  it,  when  she  got  orders  to  open  the  street  door  to  let  in 
Captain  Dalrymple;  or  when  she  (Miss  Gordon)  rung  her  bell 
twice,  that  she  should  thereupon,  without  coming  up  to  her,  open 
the  street  door  for  the  same  purpose;  that  agreeably  to  these 
directions  she  frequently  let  Captain  Dalrymple  into  the  house 
ahout  nine,  ten,  or  eleven  o'clock  at  night,  without  his  ever  ring- 
ing the  bell,  or  using  the  knocker;  that  the  first  time 
he  came  *in  this  way,  she  showed  him  up  stairs  to  the  [*  116] 
dressing-room  off  the  young  ladies'  bed-room,  where  Miss 
Gordon  then  was,  but  that  afterwards,  upon  her  opening  the  door, 
he  went  straight  up  stairs,  without  speaking,  or  being  shown  up; 
but  how  long  he  continued  up  stairs,  she  does  not  know,  as  she 


52  MARRIAGE. 


Vo.  1.  —  Dalrymple  ▼.  Dalrymple,  2  Hftgg.  Ooott  110,  117. 

never  saw  him  go  out  of  the  house ;  that  the  dressing-room  above 
alluded  to  was  on  the  floor  above  the  drawing-room,  and  adjoining 
to  the  bed-room,  where  the  three  young  ladies  slept ;  and  next  to 
the  ladies'  bed-chamber  was  another  room,  in  which  there  was  a 
bedstead,  with  a  bed  and  blankets,  but  no  curtains  or  sheets  to 
the  bed,  and  it  was  considered  as  a  lumber  room,  the  key  of 
which  was  kept  by  Miss  Gordon.  "  —  She  says  that  she  recollects, 
and  it  is  a  fact  in  which  she  is  confirmed  by  another  witness, 
Kobertson,  "  that  the  family  removed  from  Edinburgh  to  Braid 
that  year,  1804,  on  the  evening  before  a  King's  Fast "  (the  King's 
Fast  Day  for  that  year  was  on  the  7th  of  June),  "  and  on  a  Wed- 
nesday as  she  thinks,  as  the  Fast  Days  are  generally  held  on  a 
Thursday ;  that  at  this  time  Miss  Charlotte  was  at  North  Berwick, 
on  a  visit  to  Lady  Dairy mple ;  that  Mr.  Gordon  and  Miss  Mary 
went  to  Braid  in  the  evening,  but  Miss  Gordon  remained  in  town, 
as  she  Lyall  also  did,  and  Mr.  Eobertson,  the  butler,  and  one  or 
two  more  of  the  servants. " 

It  appears  from  the  testimony  of  other  witnesses,  that  Mr. 
Gordon,  her  father,  appeared  much  dissatisfied  that  this  lady  did 
not  accompany  himself  and  her  sister  to  Braid,  but  chose  to 
stay   in   town   upon  that  occasion.       There  are  passages  in  Mr. 

Dalrymple's  letters  which  point  to  the  necessity  of  her 
[*117]  *  continuance    in    town,    as   affording    more    convenient 

opportunities  for  their  meeting.  Lyall  states,  *  that  she 
recollects  admitting  Captain  Dalrymple  that  evening,  as  she 
thinks,  sometime  between  ten  and  twelve  o'clock,  and  he  went  up 
stairs  to  Miss  Gordon  without  speaking ;  that  on  the  next  morn- 
ing she  went  up  as  usual  to  Miss  Gordon's  bed-room  about  nine 
o'clock,  and  informed  her  of  the  hour;  and  having  immediately 
gone  down  stairs.  Miss  Gordon  rung  her  bell  some  time  after,  and 
on  the  deponent  going  up  to  her,  she  met  her,  either  at  the  bed- 
room door  or  at  the  top  of  the  stairs,  and  desired  her  to  look  if  the 
street  door  was  locked  or  unlocked;  and  the  deponent  having 
examined,  informed  her  that  it  was  unlocked,  and  immediately 
after  went  into  the  dressing-room ;  and,  after  being  a  very  short 
time  in  it,  she  heard  the  street  door  shut  with  more  than  ordinary 
force,  which  having  attracted  her  notice,  she  opened  the  window 
of  the  dressing-room  which  is  to  the  street,  and  on  looking  out, 
she  observed  Captain  Dalrymple  walking  eastwards  from  Mr. 
Gordon's  house;    that   from  this    she    suspected    that    Captain 


B.  C.  VOL  XVII.]  MARRIAGE.  53 

Mo.  1.  —  Dalxymplo  ▼.  DalrymplA,  2  Eagg.  Ckmit.  117-119. 

Dairy mple  v^as  the  person  who  had  gone  out  of  the  house  just 
befoie ;  that  nobody  could  have  come  in  by  the  said  door  without 
being  admitted  by  some  person  within,  as  the  door  did  not  open 
from  without,  and  she  heard  of  no  person  having  been  let  into  the 
house  on  this  occasion ;  that  having  gone  down  stairs  after  this, 
Mr.  Bobertson,  the  butler,  observed  to  her,  that  there  had  been 
company  up  stairs  last  night;  but  she  did  not  mention  to  him 
any  thing  of    her    having    let    in   Captain    Dalrymple 
*the  night  before,  or  of  her  suspicions  of  his  having  just  [*  118] 
before  gone  out  of  the  house,  at  least  she  is  not  certain, 
but  she  recollects  that  he  desired  her  to  remember  the  particular 
day  on  which  this  happened. "  —  Now  from  this  account  given  by 
Lyal],  the  counsel  have  attempted  to  raise  a  doubt,  whether  it 
was  Mr.  Dalrymple  who  went  out,  for  it  is  said  that  he  would 
have  cautiously  avoided  making  a  noise  for  fear  of  exciting  atten- 
tion.    But  the   account    Lyall    gives   is  exactly  confirmed    by 
Bobertson,  who  deposes,  "  that  on  the  7th  of  June,  which  was  the 
King's  Fast,  as  he  was  employed  about  ten  o'clock  in  the  morn- 
ing in  laying  up  some  china  in  his  pantry,  which  is  immediately 
off  the  lobby,  he  observed  Captain  Dalrymple  come  down  stairs, 
and  passing  through  the  lobby  to  the  front  door,  unlock  it,  and  go 
out  and  shut  the  door  after  him. "     Some  observations  have  been 
made  with  respect  to  Bobertson 's  conduct,  and  he  has  been  called 
a  forward  witness,  because  he  made  a  memorandum  of  this  cir- 
cumstance at  the  time  it  occurred ;  but  I  think  his  conduct  by  no 
means  unnatural.     Here  was  a  circumstance  of  mysterious  inter- 
course that  attracted  the  attention  of  several  of  the  servants,  and 
it  is  not  at  all  surprising  that  this  man,  who  held  a  superior 
situation  amongst  them  in  Mr.  Gordon's  family,  and  who  appears 
to  be  an  intelligent,  well  educated,  and  observing  person,  as  many 
of  the  lower  order  of  persons  in  that  country  are,  should  think  it 
right,  in  the  zeal  he  felt  for  the  honour  of  his  master's  family,  to 
make  a  record  of  such  an  occurrence.     In  so  doing,  I  do  not  think 
that  he  has  done  anything  more  than  is  consistent  with 
the  character  of  a  very  *  honest  and  understanding  servant,  [*  119] 
who  might  foresee  that  such  a  record  might,  one  day  or 
other,  have  its  use.     The  witness  Lyall  goes   on  to  say,  "  that 
Miss  Gordon  and  herself  went  to  Braid  that  day  (being  the  King's 
Fast)  before  dinner,  and  that  on  that  evening  or  a  night  or  two 
after  she  was  desired  by  Miss  Gordon  to  open  the  window  of  the 


54  MARRIAGE. 


Vo.  1.  —  Dalrymple  v.  Dalrymplo,  2  Hftgg.  Contt  119, 120. 

breakfasting  parlour  to  let  Captain  Dalrymple  in,  and  she  did  so 
accordingly,  and  found  Captain  Dalrymple  at  the  outside  of  the 
window  when  she  came  to  open  it,  and  this  she  thinks  might  be 
between  ten  and  twelve  o'clock,  and  she  showed  him  up  stairs, 
when  they  were  met  by  Miss  Gordon  at  the  door  of  her  bed- 
chamber, when  they  two  went  into  said  chamber,  and  she  returned 
down  stairs ;  that  she  does  not  know  how  long  Captain  Dalrymple 
remained  there  with  Miss  Gordon,  or  when  he  went  away ; "  she 
states  that  "  Miss  Charlotte  returned  from  her  visit  at  North 
Berwick  a  few  days  after  Miss  Gordon  and  the  deponent  went  to 
Braid ;  that  at  Braid  Miss  Gordon  and  Miss  Charlotte  slept  in  one 
room,  and  Miss  Mary  in  another;  that  within  Miss  Gordon  and 
Miss  Charlotte's  bed-chamber  there  was  a  dressing-room,  the  key 
of  which  Miss  Gordon  kept ;  and  she  recollects  one  day  getting 
the  key  of  it  from  Miss  Gordon  to  bring  her  a  muflf  and  tippet  out 
of  it,  and  upon  going  in  she  was  surprised  to  find  in  it  a  feather- 
bed lying  upon  the  floor,  without  either  blankets  or  sheets  upon 
it,  so  far  as  she  recollects :  that  it  struck  her  the  more,  as  she  had 
frequently  been  in  that  room  before  without  seeing  any  bed  in  it ; 

and  as  Miss  Gordon  kept  the  key,  she  imagined  she  must 
[*  120]  *  have  put  it  there  herself ;  that  she  found  this  bed  had 

been  taken  from  the  bed-chamber  in  which  Miss  Mary 
slept,  it  being  a  double  bedded  room ;  that  when  she  observed  the 
said  bed  in  the  dressing-room,  it  was  during  the  time  that  Captain 
Dalrymple  was  paying  his  evening  visits  at  Braid ;  that  upon  none 
of  the  occasions  that  she  let  Captain  Dalrymple  into  Braid  House 
did  she  see  him  leave  it,  nor  did  she  know  when  he  departed.  * 
Three  other  witnesses,  Eobertson  and  the  two  gardeners,  have 
been  examined  upon  this  part  of  the  case,  and  they  all  prove  that 
Mr.  Dalrymple  was  seen  going  into  the  house  in  the  night,  or 
coming  out  of  it  in  the  morning. 

It  is  proved  likewise  that  Porteous,  one  of  the  servants,  was 
alarmed  very  much,  that  the  window  of  the  room  where  he  kept 
his  plate  was  found  open  in  the  morning,  and  that  it  must  have 
been  opened  by  somebody  on  the  inside.  It  is  proved  that  nothing 
was  missing,  not  an  article  of  plate  was  touched,  and  that  Mr. 
Dalrymple  was  seen  by  the  two  gardeners  very  early  in  the  morn- 
ing, coming  away  from  the  house,  and  in  the  vicinity  of  the 
house,  going  towards  Edinbuigh ;  and  as  to  what  was  suggested, 
that  he  might  have  been  in  the  out-houses  all  night,  I  think  it 


B.  C.  VOL.  XVII.]  MARRIAGE.  55 

Vo.  1.  —  Dalrjmpto  ▼.  Baliymple,  3  Eagg.  Conit.  190-12S. 

is  not  a  very  natural   presumption,  that  a  gentleman  who  was 
privately  and   habitually  admitted  into  the   house  at  such  late 
hours  as  eleven  or  twelve  o'clock  at  night  would  have  been  ejected 
afterwards  for  the  purpose  of  having  so  uncomfortable  a  situation 
for  repose,  as  the  gentlemen  suppose,  in  some  of  the  stables  or 
hovels  belonging  to  the  house.  —  There  is  another  witness  of  the 
name  of  Brown,    Mr.  Dalrymple's   own  servant,  whose 
evidence  is  strongly  corroborative  *  of  the  nature  of  those  [*  121] 
visits.     This  man  is  produced  as  a  witness  by  Mr.  Dal- 
rymple  himself,  and  he  states  that  he  was  in  the  habit  of  privately 
conveying  notes  from  his  master  to  Miss  Gordon,  which  were  to 
be  concealed   from  her  father.  — He  says  to  the   second   inter- 
rogatory, "  that  he  otten  accompanied  his  master  to  Mr.  Gordon's 
house  at  Edinburgh,  but  he  cannot  set  forth  the  days  upon  which 
it  was  he  so  attended  him  there,  except  that  it  was  between  the 
10th  of  May,  and  the  18th  of  July,  1804,"  subsequently  therefore 
to  the  execution  of  the  last  paper.     This  witness  further  states, 
^^  that  on  the  night  of  the  18th  of  July,  which  was  the  last  time 
Mr.  Dalrymple  was  in  or  near  Edinburgh  in  the  said  year  1804, 
he,  by  the  orders  of  his  master,  waited  with  the  curricle  at  the 
house  of  Charles  Gordon,  Esq.,  till  about  twelve  o'clock,  when 
Mr.   Dalrymple  came  out  of  the  said  house,  and  got  into  the 
curricle,  and  rode  away  therein  about  a  mile  on  the  road  towards 
Edinburgh,  and  then  desired  him  to  stop,  and  having  told  him  to 
go  and  put  up  his  horses  in  Edinburgh,  and  to  meet  him  again  on 
the  same  spot  at  six  o'clock  the  next  morning  with  the  curricle,  Mr. 
Dalrymple  then  got  out,  and  walked  back  towards  the  said  Mr. 
Gordon's  house,  and  on  the  next  morning  at  six  o'clock  he  met 
his  master  at  the  appointed  spot,  and  brought  him  in  his   said 
curricle  to  Haddington,  from  whence  he  went  in  a  chaise  to  the 
house  of  a  Mr.  Nisbet  in  the  neighbourhood  of  that  town,  where 
Mr.  Dalrymple 's  father  was  then  staying;  that  he  does  believe 
that  Mr.  Dalrymple  did,  on  the  night  of  the  said  18th  of 
July,  go  back  to,  *  and  remain  in  the  said  Mr.   Gordon's  [*  122] 
country-house  : "  and  I  think  it  is  impossible  for  anybody 
who  has  seen  this  man's  evidence  and  the  evidence  of  the  other 
witnesses,  not  to  suppose  that  he  did  go  there,  and  did  take  his 
repose  for  the  night  in  that  house.     Now  it  is  said,  and  truly 
said,  in  this  case,  that  the  witness  Lyall,  upon  her  cross  examina- 
tion, says,  "  she  does  not  think  that  they  could  have  been  in  bed 


56  MABBIA6E. 


Vo.  1.  — Dalrympto  ▼.  DalTjrmple,  2  Hftgg.  ConBt  182, 123. 

together,  so  far  as  she  could  judge ; "  what  means  she  took  to  form 
her  judgment  does  not  appear;  the  view  taken  by  her  might  be 
very  cursory :  she  is  an  unmarried  woman,  and  might  be  mistaken 
with  respect  to  appearances,  or  the  appearances  might  be  calcu- 
lated for  the  purposes  of  deception,  in  a  connection  which  was 
intended  to  be,  to  a  great  degree,  secret  and  clandestine.  But 
the  question  is  not  what  inference  Lyall  draws,  but  what  inference 
the  Court  ought  to  draw  from  the  fact  proved  by  her  evidence, 
that  Mr.  Dalrymple  passed  the  whole  of  the  night  in  Miss 
Gordon's  room  under  all  the  circumstances  described,  with  pas- 
sions, motives,  and  opportunities  all  concurring  between  persons 
connected  by  ties  of  so  sacred  a  nature. 

Lady  Johnstone,  one  of  her  sisters,  has  been  relied  upon  as  a 
strong  witness  to  negative  any  sexual  intercourse ;  and  I  confess  it 
does  appear  to  me  rather  an  extraordinary  thing,  that  that  lady's 
observations  and  surmises  should  have  stopped  short  where  they 
did,  considering  the  circumstances  which  might  naturally  have 
led  her  to  observe  more  and  to  suspect  more :  she  certainly  was 
kept  in  the  dark,  or  at  least  in  a  twilight  state.     It  rather  appears 

from  the  letters,  that  there  were  some  quarrels  and  disa- 
[*123]  greements   between  *Mr.  Dalrymple  and  the  gentleman 

who  afterwards  married  this  lady,  and  who  was  then  pay- 
ing his  addresses  to  her;  how  far  that  might  occasion  conceal- 
ment from  her  I  cannot  say.  The  father,  for  reasons  of  propriety 
and  delicacy  respecting  himself  and  family,  was  to  be  kept  in 
ignorance,  and  therefore  it  might  be  proper  that  only  half  a  reve- 
lation should  be  made  to  the  sister.  She  certainly  states  that 
upon  her  return  to  Braid,  in  the  middle  of  June,  she  slept  with 
her  sister,  and  never  missed  her  from  her  bed,  and  never  heard 
any  noise  in  the  sister's  dressing-room  which  led  her  to  suppose 
that  Mr.  Dalrymple  was  there.  I  am  far  from  saying  that  this 
evidence  of  Lady  Johnstone's  is  without  weight  In  truth,  it  is 
the  strongest  adverse  evidence  that  is  produced  on  this  point 
But  she  admits,  "  that  from  what  she  had  herself  observed,  she 
had  no  doubt  but  that  Mr.  Dalrymple  had  made  his  addresses  to 
her  sister  in  the  way  of  marriage ;  that  when  the  deponent  used  to 
ask  her  said  sister  about  it,  she  used  to  laugh  it  oflf. "  From 
which  it  appears  that  Miss  Gordon  did  not  communicate  freely 
with  her  upon  the  subject  She  says,  "  that  never  till  after  the 
proceedings  in  this  cause  had  commenced  had  she  heard  that  they 


R.  a  YOL  XVU.]  MARRUGE.  57 

Ho.  1.  —  DtlrTinplo  ▼.  Dalrymple,  S  Eagg.  Conit  128-12A. 

had  exchanged  written  acknowledgments  of  their  being  lawful 
husband  and  wife,  and  had  consummated  their  marriage ;  but,  on 
the  contrary,  always,  till  very  lately,  conceived  that  they  had 
merely  entered  into  a  written  promise  with  each  other,  so  as  to 
have  a  tie  upon  each  other,  that  neither  of  them  should  marry 
another  person  without  the  consent  of  the  other  of  them.  *     That 
is  the  interpretation  this  lady  gives  to  the  paper  No.  10, 
*  though  that  paper  purports  a  great  deal  more,  and  she  [*124] 
says, "  that  although  she  did  suspect  that  Mr.  Dalrymple 
had  at  some  time  or  times  been  in  her  sister's  dressing-room,  yet 
she  never  did  imagine  that  they  had  consummated  a  marriage 
between  them. "     But  since  it  is  clearly  proved  by  the  other  wit- 
nesses that  Mr.  Dalrymple  was  in  the  habit  of  going  privately  to 
Miss  Gordon's  bed-room  at  night,  and  going  out  clandestinely  in 
Ae  morning,  I  cannot  think  that  the  ignorance  of  this  witness 
respecting  a  circumstance  with  regard  to  which  she  was  to  be 
l^ept  in  ignorance,  can  at  all  invalidate  the  facts  spoken  to  by  the 
other  witnesses,  or  the  conclusion  that  ought  to  be  deduced  from 
them. 

With  respect  to  the  letters  written  at  such  a  time  as  this,  I  am 
not  disposed  to  scan  with  severe  criticism  the  love-letters  of  a 
very  young  gentleman,  but  they  certainly  abound  with  expressions 
which,  connected  with  all  the  circumstances  I  have  adverted  to, 
cannot  be  interpreted  otherwise  than  as  referring  to  such  an  inter- 
course.    I  exclude  all  grossness,  because,  considered  as  a  conjugal 
intercourse,  it  carries  with  it  no  mixture  of  grossness  but  what 
may  be  pardonable  in  a  very  young  man,  alluding  to  the  raptures 
of  his  honey-moon,  when  addressing  the  partner  of  his  stolen 
pleasures.     I  will  state  some  passages,  however,  which  appear  to 
point  at  circumstances  of  this  nature :  —  "  My  dearest  sweet  wife 
—  You  are,  I  dare  say,  happy  at  Queen's  Ferry,  while  your  poor 
husband  is  in  this  most  horrible  place,  tired  to  death,  thinking 
only  on  what  he  felt  last  night,  for  the  height  of  human  happiness 
was  his. "     It  is  said  that  this  has  reference  only  to  the 
happiness  which  he  enjoyed  in  her  *  society,  for  an  expres-  [*  125] 
sion  immediately  follows,  in  which  he  extols  the  happi- 
ness of  being  in  the  society  of  the  person  beloved ;  and  it  may  be 
80,  but  it  must  mean  society  in  a  qualified  sense  of  the  word, 
private  and  clandestine  society ;  society  which  commenced  at  the 
hour  of  midnight,  and  which  he  did  not  quit  till  an  early  hour 


58  MARRIAGE. 


Vo.  1.  —  Dalrymple  ▼.  Dalrjmple,  2  Hagg.  Conit.  185,  126. 

(and  then  secretly)  in  the  morning.  That  society  is  meant  only 
in  the  tamest  sense  of  the  word,  is  an  interpretation  which  I  think 
cannot  very  well  be  given  to  such  expressions  as  these,  used  upon 
such  an  occasion.  In  the  letter  marked  No.  6,  he  says,  "  Put  ofif 
the  journey  to  Braid,  if  possible,  till  next  week,  as  the  town  suits 
so  much  better  for  all  parties.  I  must  consult  L.  on  that  point 
to-morrow,  as  I  well  know  how  a-propos  plans  come  into  her 
pretty  head;  there  appears  to  me  only  one  difficulty,  which  is 
where  to  meet,  as  there  is  only  one  room,  but  we  must  obviate 
that  if  possible. "  In  the  next  letter.  No.  7,  he  says,  "  But  I  will 
be  with  you  at  eleven  to-morrow  night ;  meet  me  as  usual.  —  P.  S. 
Arrange  everything  with  L.  about  the  other  room.  " 

There  are  several  other  expressions  contained  in  these  letters 
which  manifestly  point  to  the  fact  of  sexual  intercourse  passing 
between  them.  These  I  am  unwilling  to  dwell  upon  with  any 
particular  detail  of  observation,  because  they  have  been  already 
stated  in  the  arguments  of  counsel,  and  are  of  a  nature  that  does 
not  incline  me  to  repeat  them  without  absolute  necessity ;  I  refer 
to  the  letters  themselves,  particularly  to  No.  4  and  No.  6.  But  it 
is  said,  there  are  passages  in  these  letters  which  show  that  no 
such  intercourse  could  have  passed  between  them ;  one  in 
[*126]  particular  in  No.  4  is  much  *  dwelt  upon,  in  which  he 
says,  "  Have  you  forgiven  me  for  what  I  attempted  last 
night  ?  believe  me,  the  thought  of  your  cutting  me  has  made  me 
very  unhappy. "  From  which  it  is  inferred  that  he  had  made  an 
attempt  to  consummate  his  marriage,  and  had  been  repulsed.  Now 
this  expression  is  certainly  very  capable  of  other  interpretations : 
It  might  allude  to  an  attempt  made  by  him  to  repeat  his  pleasures 
improperly,  or  at  a  time  when  personal  or  other  circumstances 
might  have  rendered  it  unseasonable.  In  the  very  same  letter  he 
exacts  it  as  a  right  He  says,  "  You  will  pardon  it ;  although  it 
was  my  right,  yet  I  make  a  determination  not  too  often  to  exert 
it ;  what  a  night  shall  I  pass  without  any  of  those  heavenly  com- 
forts I  so  sweetly  experienced  yesterday !  ' 

In  a  correspondence  of  this  kind,  passing  between  parties  of 
this  description,  and  alluding  to  very  private  transactions,  some 
degree  of  obscurity  must  be  expected.  Here  is  a  young  man 
heated  with  passion,  wiiting  every  day,  and  frequently  twice  in  a 
day,  making  allusions  to  what  passed  in  secrecy  between  himself 
and  the  lady  of  his  affections ;  surely  it  cannot  be  matter  of  aston- 


R  C.  VOL.  XVn.]  MARRIAGE.  59 

Ho.  1.  —  Dftlrympls  y.  Salrymple,  8  Hag^.  Congt.  186-128. 

ishment,  that  many  passages  are  to  be  found  diflScult  of  exact 

interpretation,  and  which  it  is  impossible  for  any  but  the  parties 

themselves  fully  to  explain.     What  attempt  was  made  does  not 

appear ;  this  I  think  does  most  distinctly  appear,  that  he  did  at 

this  time  insist  upon  his  rights,  and  upon  enjoying  those  privi- 

l^es  which  he  considered  to  be  legally  his  own.     Wherever  these 

obscure  and  ill-understood  expressions  occur,  they  must  be  received 

with  such  explanations  as  will  render  them  consistent  with 

the  main  body  *  and  substance  of  the  whole  case.     Another  [*  127] 

passage  in  the  letter  No.   5,  which  is  dated  on  the  30th 

of  May,  has  been  relied  upon  as  showing  that  Mr.  Dalrymple  did 

not  consider  himself  married  at  that  time.     In  that  letter  he  says, 

"  I  am  truly  wretched,  I  know  not  what  I  write,  how  can  you  use 

me  so  ?  but  (on  Sunday,  on  my  soul  (Tom. ))  you  shall,  you  must 

become  my  wife,  it  is  my  right, "  and  therefore  it  is  argued  that 

she  had  not  yet  become  his  wife.     The  only  interpretation  I  can 

assign  to  this  passage,  which  appears  to  have  been  written  when 

he  was  in  a  state  of  great  agitation,  is,  that  on  Sunday  she  was  to 

submit  to  what  he  had  described  as  the  rights  of  a  husband.     It 

is  not  to  be  understood  that  a  public  marriage  was  to  be  executed 

between  them  on  that  day,  because  it  is  clear,  from  the  whole 

course  and  nature  of  the  transaction,  that  no  such  ceremony  was 

ever  intended :  It  appears  from  all  the  facts  of  the  case,  that  it 

vas  to  be  a  private   marriage,  that  it  was  so  to  continue,  and 

therefore  no  celebration  could  have  been  intended  to  take  place  on 

that  approaching  Sunday. 

In  a  case  so  important  to  the  parties,  and  relating  to  trans- 
actions of  a  nature  so  secret,  I  have  ventured  to  exercise  a  right 
not  possessed  by  the  advocates,  of  looking  into  the  sworn  answers 
of  the  parties  upon  this  point :  and  I  find  Miss  Gordon   swears 
positively  that  intercourse  frequently  passed  between  them  subse- 
quently to  the  written  declaration  or  acknowledgment  of  marriage. 
Mr.  Dalrymple  swears  as  confidently  that  it  did  not  so  take 
place,  but  he  admits  that  it  did  on  some  one  *  night  of  the  [*  128] 
month  of  May,  prior  to  the  signature  of  the  paper  marked 
No.  1 ;  the  date  of  which,  however,  he  does  not  assign,  any  more 
than  he  does  that  of  the  night  in  which  this  intercourse  did  take 
place.     Now  consider  the  effects  of  this  admission.     It  certainly 
does  often  happen  that  men  are  sated  by  enjoyment;  that  they 
relinquish  with  indifference,   upon  possession,    pleasures  which 


60  MARRIAGE. 


Ho.  1. — Dalrjmple  y.  Dalrymple,  8  Eagg.  Oonft  188, 188. 

they  have  eagerly  pursued.  But  it  is  a  thing  quite  incredible 
that  a  man,  so  sated  and  cloyed,  should  afterwards  bind  himself 
by  voluntary  engagements  to  the  very  same  party  who  had  worn 
out  his  attachment  Not  less  inconsistent  is  this  supposition  with 
the  other  actual  evidence  in  the  case,  for  all  these  letters,  breath- 
ing all  these  ardours,  are  of  a  subsequent  date,  and  prove  that  these 
sentiments  climg  to  his  heart  as  closely  and  as  warmly  as  ever 
during  the  whole  continuance  of  his  residence  in  Scotland.  I 
ask  if  it  is  to  be  understood,  that  with  such  feelings  he  would 
relinquish  the  pleasures  which  he  had  been  admitted  to  enjoy, 
and  which  he  appears  to  value  so  highly,  or  that  she  would  deny 
him  those  pleasures  for  the  consolidation  of  her  marriage,  which 
she  had  allowed  him,  according  to  his  own  account,  gratuitously 
and  without  any  such  inducement 

On  this  part  of  the  case  I  feel  firm.  It  is  not  a  point  of  foreign 
law  on  which  it  becomes  me  to  be  diffident ;  it  is  a  matter  of  fact 
examinable  upon  common  principles ;  and  I  think  I  should  act  in 
opposition  to  all  moral  probabilities,  to  all  natural  operations  of 
human  passions  and  actions,  and  to  all  the  fair  result  of  the  evi- 
dence, if  I  did  not  hold  that  consummation  was  fully  proved.  If 
this  is  proved,  then  is  there,  according  to  the  common 
[*  129]  *  consent  of  all  legal  speculation  on  the  subject,  an  end 
of  all  doubt  in  the  case,  unless  something  has  since 
occurred  to  deprive  the  party  of  the  benefit  of  a  judicial  declara- 
tion of  her  marriage. 

What  has  happened  that  can  have  such  an  effect?  Certainly 
the  mere  fact  of  a  second  marriage,  however  regular,  can  have  no 
such  eflfect  The  first  marriage,  if  it  be  a  marriage  upheld  by  the 
law  of  the  country,  can  have  no  competitor  in  any  second  mar- 
riage, which  can  by  legal  possibility  take  place ;  for  there  can  be 
no  second  marriage  of  living  parties  in  any  country  which  disal- 
lows ploygamy.  There  may  be  a  ceremony,  but  there  can  be  no 
second  marriage  —  it  is  a  mere  nullity. 

It  is  said  that,  by  the  law  of  Scotland,  if  the  wife  of  the  first 
private  marriage  chooses  to  lie  by,  and  to  suffer  another  woman  to 
be  trepanned  into  a  marriage  with  her  husband,  she  may  be 
barred  personali  exceptione  from  asserting  her  own  marriage.  Cer- 
tainly no  such  principle  ever  found  its  way  into  the  law  of  Eng- 
land ;  no  connivance  would  affect  the  validity  of  her  own  marriage ; 
even  an  active  concurrence,  on  her  part,  in  seducing  an  innocent 


B.  C.  VOL.  XVII.]  MARRIAGE.  61 

Mo.  1.  — Dtlzymple  y.  Dalrymple,  2  Hag^.  Oonit.  199-181. 

woman  into  a  fraudulent  marriage  with  her  own  husband,  though 
it  might  possibly  subject  her  to  punishment  for  a  criminal  con- 
spiiacy,  would  have  no  such  effect  But  it  is  proper,  that  I 
should  attend  to  the  rule  of  the  law  of  Scotland  upon  this  subject 
There  is  no  proof,  I  think,  upon  the  exhibition  of  Scotch  law, 
which  has  been  furnished  to  the  Court,  that  such  a  principle  was 
ever  admitted  authoritatively;  for  though  in  the  gross  case  of 
Campbell  v.  Cochrarie,  in  the  year  1747,  the  Court  of 
Session  did  hold  this  doctrine,  yet  it  *was  afterwards  [*130] 
Tetracted  and  abandoned,  on  the  part  of  the  second  wife, 
before  the  House  of  Lords,  which,  most  assuredly,  it  would  not 
have  been,  if  any  hope  had  been  entertained  of  upholding  it  as  the 
genuine  law  of  Scotland,  because  the  second  wife  could  never  have 
been  advised  to  consent  to  the  admission  of  evidence,  which  very 
nearly  overthrew  the  rights  of  her  own  marriage.  Under  the 
correct  application  of  the  principles  of  that  law,  I  conceive  the 
doctrine  of  a  medium  impedimentum  to  be  no  other  than  this,  that 
on  the  factum  of  a  marriage,  questioned  upon  the  ground  of  the 
want  of  a  serious  purpose  and  mutual  understanding  between  the 
parties,  or  indeed  on  any  other  ground,  it  is  a  most  important 
circumstance,  in  opposition  to  the  real  existence  of  such  serious 
purpose  and  understanding,  or  of  the  existence  of  a  marriage,  that 
the  wife  did  not  assert  her  rights,  when  called  upon  so  to  do, 
but  suffered  them  to  be  transferred  to  another  woman,  without  any 
reclamation  on  her  part  This  doctrine  of  the  effect  of  a  mid- 
impediment  in  such  a  case  is  consonant  to  reason  and  justice,  and 
to  the  fair  representations  of  Scotch  law  given  by  the  learned 
advocates,  particularly  by  Mr.  Cay,  in  his  answer  to  the  third 
additional  interrogatory,  and  Mr.  Hamilton,  in  his  answer  to  the 
first  further  additional  interrogatory;  but  surely  no  conduct  on 
the  part  of  the  wife,  however  criminal  in  this  respect,  can  have 
the  effect  of  shaking  ab  initio  an  undoubted  marriage. 

Suppose,  however,  the  law  to  be  otherwise,  how  is  it  applicable 
to  the  conduct  of  the  party  in  the  present  case  ?  Here  is  a  mar- 
riage, which  at  the  earnest  request  of  this  gentleman,  and  on 
account  of  his  most  important  interests  (in  which  interests 
*  her  own  were  as  seriously  involved)  was  not  only  to  be  [*  131] 
secret  at  the  time  of  contracting,  but  was  to  remain  a  pro- 
found secret  till  he  should  think  proper  to  make  a  disclosure ;  it 
is  a  marriage  in  which  she  has  stood  firm  in  every  way  consistent 


62  MARRIAGE. 


Mo.  1.  — Dalrjmple  y.  Salrymple,  2  BAgg,  Const.  181, 188. 

with  that  obligation  of  secrecy,  not  only  during  the  whole  of  his 
stay  in  Scotland,  but  ever  since,  even  up  to  the  present  moment. 
She  corresponded  with  him  as  her  husband  till  he  left  England, 
not  disclosing  her  marriage  even  to  her  own  family  on  account  of 
his  injunctions  of  secrecy.  Just  before  he  quitted  this  country, 
he  renewed  in  his  letters  those  injunctions,  but  pointed  out  to  her 
a  mode  of  communicating  with  him  by  letter,  through  the  assist- 
ance of  Sir  Eupert  George,  the  first  Commissioner  of  the  Transport 
Board.  In  the  same  letter,  written  on  the  eve  of  his  departure 
for  the  Continent,  he  cautions  her  against  giving  any  belief  **  to  a 
variety  of  reports  which  might  be  circulated  about  him  during  his 
absence,  for  if  she  did,  they  would  make  her  eternally  miserable. 
I  shall  not  explain, "  he  says,  "  to  what  I  am  alluding,  but  I  know 
things  have  been  said,  and  the  moment  I  am  gone  will  be  re- 
peated, which  have  no  foundation  whatever,  and  are  only  meant 
for  the  ruin  of  us  both:  once  more,  therefore,  I  entreat  you,  if 
you  value  your  peace  or  happiness,  believe  no  report  about  me 
whatever. " 

No  doubt,  I  think,  can  be  entertained,  that  the  reports  to 
which  he,  in  this  mysterious  language,  adverts,  must  respect  some 
matrimonial  connections,  which  had  become  the  subjects  of  public 
gossip,  and  might  reach  her  ear.     Nothing,  however,  less  than 

certain  knowledge  was  to  satisfy  her,  according  to  his 
[*132]  own  injunction,  and  nothing  *  could,  I  think,  be  more 

calculated  to  lull  all  suspicion  asleep  on  her  part  It 
appears,  however,  that  it  had  not  that  complete  effect,  for  Mr. 
Hawkins  says,  that  upon  the  return  of  Mr.  Dalrymple,  in  the 
month  of  August,  1806,  when  he  came  to  England  privately, 
without  the  knowledge  of  his  father,  or  of  this  lady,  he  then,  for 
the  first  time,  "  communicated  to  him  many  circumstances  re- 
specting a  connection,  he  stated  he  had  had,  with  a  Miss  Johanna 
Gordon  at  Edinburgh,  and  expressed  his  fears  that  she  would  be 
writing  and  troubling  his  father  upon  that  subject,  as  well  as 
tormenting  him,  the  said  John  William  Henry  Dalrymple,  with 
letters,  to  avoid  which,  he  begged  him  not  to  forward  any  of  her 
letters  to  him  who  was  then  about  to  go  to  the  Continent,  and  in 
order  to  enable  him  to  know  her  handwriting,  and  to  distinguish 
her  letters  from  any  others,  he  then  cut  off  the  superscription 
from  one  of  her  letters  to  him,  which  he  then  gave  to  the  deponent 
for  that  purpose,  and  at  the  same   time   swore,  that  if  he  did 


U.  a  YOL.  XVn.]  MARRIAGE.  63 

Mo.  1.  —  Dalrymple  y.  Dalrymple,  2  Hag^.  Gomt  139>ia4. 

forward  any  of  her  letters,  he  never  would  read  them ;  and  he  also 
desired  and  entreated  him  to  prevent  any  of  Miss  Gordon^s  letters 
from  falling  into  the  hands  of  General  Dalrymple,  and  that  he 
went  off  again  to  the  Continent  in  the  month  of  September. " 
Mr.  Hawkins  further  says,  "  that  he  did  find  means  to  prevent 
several  of  Miss  Gordon's  letters  addressed  to  General  Dalrymple 
from  being  received  by  him,  but  having  found  considerable  risk 
and  difficulty  therein,  and  in  order  to  put  a  stop  to  her  writing 
any  more  letters  to  General  Dalrymple,  he  the  deponent 
did  himself  write  and  address  a  letter  to  *  her  at  Edin-  [♦  133] 
bujgh,  wherein  he  stated  that  the  letters  which  she  had 
sent  to  General  Dalrymple  had  fallen  into  his  hands  to  peruse  or 
to  answer,  as  the  General  was  himself  precluded  from  taking  any 
notice  of  letters  from  the  precarious  state  he  was  in,  or  to  that 
effect,  and  urged  the  propriety  of  her  desisting  from  sending  any 
more  letters  to  General  Dalrymple ;  and  the  deponent  having,  in 
his  said  letter,  mentioned  that  he  was  in  the  confidence  of,  and  in 
correspondence  with  Mr.  Dalrymple,  she  soon  afterwards  com- 
menced a  correspondence  with  him  respecting  Mr.  Dalrymple,  and 
also  sent  many  letters,  addressed  to  Mr.  Dalrymple,  to  him,  in 
order  to  get  them  forwarded ;  but  the  deponent  having  been  par- 
ticularly desired  by  Mr.  Dalrymple  not  to  forward  any  such  letters 
to  him,  did  not  send  all,  but  thinks  he  did  send  one  or  two,  in 
consequence  of  her  continued  importunities ;  **  he  says,  "  that  it 
was  some  time  in  the  latter  end  of  the  year  1806,  or  the  beginning 
of  the  year  1807,  that  the  correspondence  between  Miss  Gordon 
and  himself  first  commenced ;  and  that  after  the  death  of  General 
Dalrymple,  which  he  believes  happened  in  or  about  the  spring  of 
the  year  1807,  she,  in  her  correspondence  with  him,  expressly 
asserted  and  declared  to  him  her  marriage  with  Mr.  Dalrymple. " 

It  appears  then  that  Miss  Gordon  knew  nothing  of  Mr.  Hawkins, 
except  from  the  account  he  had  given  of  himself,  that  he  was  the 
confidential  agent  of  Mr.  Dalrymple,  and  therefore  she  might 
naturally  have  felt  some  hesitation  about  laying  the  whole 
of  her  case  before  ♦  him,  especially  as  General  Dalrymple  [*  134] 
was  alive,  till  whose  death  the  marriage  was  to  remain  a 
profound  secret;  but  upon  that  event  taking  place,  which  hap- 
pened at  no  great  distance  of  time,  Miss  Gordon  instantly  asserted 
to  Mr.  Hawkins  her  marriage  with  Mr.  Dalrymple,  and  he,  wish- 
ing to  be  furnished  with  the  particulars,  wrote  to  her  for  the  pur- 


64  MABBIAQE. 


Mo.  1.  —  Dalrjmplo  y.  Dalzymple,  9  Kagg.  Oomt  184, 1S0. 

pose  of  obtaining  them,  which  she  thereupon  communicated,  and 
at  the  same  time  sent  him  a  copy  of  the  original  papers,  which,  in 
the  language  of  the  law  of  Scotland,  she  called  her  marriage  lines. 
—  She  mentioned  likewise  some  bills  which  had  been  left  unpaid 
by  her  asserted  husband,  upon  which  he  wrote  to  Mr.  Dalrymple, 
and  he  says,  *  that  he  has  no  doubt  Mr.  Dalrymple  received  the 
letters,  because  he  replied  thereto  from  Berlin  or  Vienna,  and 
caused  the  bills  to  be  regularly  discharged. "  He  says,  "  that  in 
the  latter  end  of  May,  in  the  year  1808,  Mr.  Dalrymple  returned 
again  to  England.  *  —  I  ought  to  have  mentioned  that  it  appears 
clearly,  that  Miss  Gordon  had  been  sending  letters  to  Mr.  Haw- 
kins, expressive  of  her  uneasiness  on  account  of  the  reports  which 
had  prevailed  of  a  marriage  about  to  be  entered  into  by  Mr. 
Dalrymple.  She  says,  in  a  letter  to  Mr.  Hawkins,  "  I  shall  have 
no  hesitation  in  putting  my  papers  into  the  hands  of  a  man  of 
business,  and  establishing  my  rights,  as  it  is  a  very  unpleasant 
thing  to  hear  different  reports  every  day ;  the  last  one  is,  that  Mr. 
Dalrymple  had  ordered  a  new  carriage  on  his  marriage  with  a 
nobleman's  daughter." 

This  description  cannot  apply  to  the  marriage  which 
[*  135]  has  since  taken  place  with  Miss  Manners,  but  *  is  merely 
some  vague  report  which  it  seems  had  got  into  common 
discourse  and  circulation.  On  the  9th  of  May,  she  writes  to 
know  whether  any  accounts  had  been  received  from  Mr.  Dalrymple, 
and  says,  **  Any  real  friend  of  Mr.  Dalrymple 's  ought  to  caution 
him  against  forming  any  new  engagement;  *  and  she  protests  most 
strongly  against  his  entering  into  a  matrimonial  connection  with 
another  woman.  —  In  the  end  of  that  very  month  of  May,  Mr. 
Dalrymple  came  home,  having  been  at  diflferent  places  on  the  con- 
tinent; he  went  down  to  Mr.  Hawkins'  house  at  Findon,  where 
having  met  him,  they  conversed  together  upon  Mr.  Dalrymple 's 
affairs,  and  particularly  upon  his  marriage  with  Miss  Gordon ;  and 
on  that  occasion,  Mr.  Hawkins  baving  at  this  time  no  doubt  left 
upon  his  mind  of  the  marriage,  and  fearing,  from  the  manner  and 
conduct  of  Mr.  Dalrymple,  that  he  had  it  in  contemplation  to 
marry  Miss  Manners,  the  sister  of  the  Duchess  of  St  Albans,  he 
cautioned  him  in  the  most  anxious  manner  against  taking  such  a 
step,  and  in  the  strongest  language  which  he  was  able  to  express, 
described  the  mischiefs  which  would  result  from  such  a  measure, 
both  to  himself  and  the  lady,  and  the  difficulties  in  which  their 


K.  a  VOL  XVII.]  MARBIAGK  65 

No.  1.  — Dalrymple  y.  Salrymple,  8  Hagg.  Oonit  186-187. 

respective  families  might  be  involved,  owing  to  Mr.  Dairy mple's 
pievious  marriage. 

Mr.  Hawkins  thought,  at  the  time,  that  those  admonitions  had 
had  the  good  effect  of  deterring  him  from  the  intention  of  marry- 
ing Miss  Manners,  though  he  mentions  a  circumstance  which 
bears  a  very  different  complexion,  viz. ,  that  Mr.  Dalrymple  took 
from  him,  almost  by  force,  some  of  Miss  Gordon's  letters, 
and  particularly  those  annexed  to  the  allegation.  *  He  [*  136] 
says, "  that  Mr.  Dalrymple  took  them  under  pretence  of 
showing  them  to  Lord  Stair,  and  seemed  by  his  manner  and 
expressions  to  consider  that  he  had  thereby  possessed  himself  of 
the  means  of  showing  that  Johanna  Dalrymple  was  not  his  wife. " 
It  was  about  the  end  of  the  month  of  May  that  Mr.  Hawkins  and 
Mr.  Dalrymple  held  this  conversation  at  Findon,  and  upon  the 
2nd  of  the  following  month  Mr.  Dalrymple  was  married  to  Miss 
Manners,  before  it  was  possible  that  Miss  Gordon  could  know  the 
fact  of  his  arrival  in  England.  Upon  her  knowledge  of  the  mar- 
riage, she  immediately  proceeds  to  call  in  the  aid  of  the  law.  I 
profess  I  do  not  see  what  a  woman  could  with  propriety  have  done 
more  to  establish  her  marriage  rights ;  Mr.  Dalrymple  was  all  the 
time  abroad,  and  the  place  of  his  residence  perfectly  unknown  to 
her;  no  process  could  operate  upon  him  from  the  Courts,  either  of 
Scotland  or  England,  nor  was  he  amenable  in  any  manner  what- 
ever to  the  laws  of  either  country. 

She  did  all  she  could  do  under  the  obligations  of  secrecy,  which 
he  had  imposed  upon  her  by  entering  her  private  protest  against 
his  forming  any  new  connection ;  she  appears  to  me  to  have  satis- 
fied the  whole  demands  of  that  duty,  which  such  circumstances 
imposed  upon  her ;  and  I  must  say,  that  if  an  innocent  lady  has 
been  betrayed  into  a  marriage,  which  conveys  to  her  neither  the 
character  nor  rights  of  a  wife,  I  cannot,  upon  any  evidence  which 
has  been  produced,  think  that  the  conduct  of  Miss  Gordon  is 
chargeable,  either  legally  or  morally,  with  having  contributed  to 
80  disastrous  an  event 

•Little  now  remains  for  me  but  to  pronounce  the  formal  [*  137] 
sentence  of  the  Court,  and  it  is  impossible  to  conceal  from 
my  own  observation  the  distress  which  that  sentence  may  eventually 
inflict  upon  one,  or  perhaps  more  individuals ;  but  the  Court  must 
discharge  its  public  duty,  however  painful  to  the  feelings  of 
others,  and  possibly  to  its  own ;  and  I  think  I  discharge  that  duty 

VOL-  XVII.  —  5 


66  MARRIAGE. 


Ho.  8.  'Seg.  y.  IQllis,  10  CI.  &  Fin.  684. 


in  pronouncing,  that  Miss  Gordon  is  the  legal  wife  of  John 
William  Henry  Dalrymple,  Esq. ,  and  that  he,  in  obedience  to  the 
law,  is  bound  to  receive  her  home  in  that  character,  and  to  treat 
her  with  conjugal  affection,  and  to  certify  to  this  Court  that  he 
has  so  done,  by  the  first  session  of  the  next  term. 

From  this  decree  an  appeal  was  alleged  and  prosecuted  to  the 
Court  of  Arches.  In  the  course  of  those  proceedings  an  interven- 
tion was  given  for  Laura  Dalrymple  —  described  as  wife  of  John 
William  Henry  Dalrymple,  Esq. ,  the  appellant  in  the  cause.  On 
the  3rd  session  of  Mich.  Term,  viz.,  18th  of  November,  1811, 
an  allegation  was  asserted  on  her  behalf,  and  the  Judge  assigned 
to  hear,  on  the  admission  thereof,  on  the  by-day.  On  that  day, 
viz.,  4th  of  December,  her  Proctor  prayed  the  assignation  to  be 
continued,  which  was  opposed;  and  the  Judge  concluded  the 
cause,  and  assigned  the  same  for  sentence  on  the  next  court  day. 
On  the  first  Sess.  Hil.  Ter.,  viz.,  January,  1812,  her  Proctor 
alleged  the  cause  to  have  been  appealed;  and  the  appeal  was 
accordingly  prosecuted  to  the  High  Court  of  Delegates,  where  the 
grievance  complained  of  was,  "  that  the  Judge  of  the  Court  of 
Arches  had  rejected  the  prayer  of  the  said  Laura  Dalrymple,  for 
time  to  be  allowed  for  the  admission  of  an  allegation  on  her 
behalf. "  Time  was  allowed  by  the  Court  of  Delegates.  And  the 
cause  being  there  retained,  her  allegation  was  given  in,  and 
opposed,  and  ultimately  rejected.  The  cause  was  afterwards 
heard  upon  the  merits;  and  on  the  19th  of  January,  1814,  the 
sentence  of  the  Consistory  Court  was  afl&rmed. 

Beg.  V.  Millis. 

10  Cl.  &  Fin.  534-907  (8.  c.  8  Jur.  717). 

[534]  Common  Law.  —  Marriage. 

A.  (in  the  kingdom  of  Ireland),  accompanied  by  B.,  went  to  the  house  of 
C,  a  regularly  placed  minister  of  the  Presbyterians  of  the  parish  where  such 
minister  resided,  and  then  entered  into  a  present  contract  of  marriage  with  the 
said  B. ;  the  said  minister  performing  a  religious  ceremony  between  them, 
according  to  the  rights  of  the  Presbyterian  Church.  A.  and  B.  lived  together 
for  some  time  as  man  and  wife ;  A.  afterwards  married  another  person,  in  a 
parish  church  in  England.  Qu.  Whether  the  first  contract  was  suflSciently  a 
marriage  to  support  an  indictment  against  A.  for  bigamy  f 

The  Lord  Chancellor,  Lord  Cottenham,  and  Lord  Abinger  held  that 
it  was  not;  Lord  Brougham,  Lord  Denman,  and  Lord  Campbell  held  that  it 


B.  C  VOL  XVII.]  MABRIAGE.  67 

Ho.  8.  —  Seg.  y.  IfUlii,  10  Gl.  &  Fin.  684,  686. 

was.   The  Lords  being  thas  divided,  the  rule ' '  semper  pnesumitur  pro  negante  " 
applied,  and  jadgment  was  given  for  the  defendant  in  error. 

At  the  Spring  Assizes  of  1842  for  the  county  of  Antrim,  holden 
at  Carrickfergiis,  on,  &c.,  the  defendant  in  error,  Millis,  viras 
indicted  for  bigamy,  under  the  statute  of  10  Geo.  IV.,  c.  34.  The 
defendant  in  error  was  arraigned  upon  this  indictment,  and 
pleaded  not  guilty,  and  thereupon  issue  was  joined.  The  jury 
found  the  following  special  verdict:  — 

*  That  about  thirteen  years  ago,  to  wit,  in  the  month  of  January, 
1829,  George  Millis,  accompanied  by  Hester  Graham  (spinster), 
and  three  other  persons,  went  to  the  house  of  the  Eev.  John 
Johnstone,  of  Banbridge,  in  the  county  of  Down,  the  said  Eev. 
John  Johnstone  then  and  there  being  the  placed  and  regular 
minister  *  of  the  congregation  of  Protestant  dissenters  com-  [*  535] 
monly  called  Presbyterians,  at  TuUylish,  near  to  Ban- 
bridge  aforesaid ;  and  that  the  said  prisoner  and  the  said  Hester 
Graham  then  and  there  entered  into  a  contract  of  present  marriage, 
in  presence  of  the  said  Be  v.  John  Johnstone  and  the  said  other 
persons,  and  the  said  Eev.  John  Johnstone  then  and  there  per- 
formed a  religious  ceremony  of  marriage  between  the  said  prisoner 
and  Hester  Graham,  according  to  the  usual  form  of  the  Presby- 
terian Church  in  Ireland;  and  that  after  the  said  contract  and 
ceremony,  the  prisoner  and  the  said  Hester  for  two  years  cohabited 
and  lived  together  as  man  and  wife,  the  said  Hester  being  after 
the  period  of  said  ceremony  known  by  the  name  of  Millis.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  further  say  that  the 
said  George  Millis  was,  at  the  time  of  the  said  contract  and  cere- 
mony, a  member  of  the  Established  Church  of  England  and 
Ireland,  and  that  the  said  Hester  was  not  a  Eoman  Catholic,  but 
the  jurors  aforesaid  do  not  find  whether  she,  the  said  Hester,  was 
a  member  of  the  said  Established  Church  or  a  Protestant  dissenter. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  further  find, 
that  afterwards,  upon  the  24th  day  of  December,  1836,  and  while 
the  aforesaid  Hester  was  still  living,  the  said  George  Millis  was 
married  to  one  Jane  Kennedy,  then  spinster,  in  the  parish  of 
Stoke,  in  the  county  of  Devon,  in  England,  according  to  the  forms 
of  the  said  Established  Church,  by  the  then  ofl&ciating  minister 
of  the  said  parish,  he  being  then  and  there  a  priest  in  holy 
orders ;  but  whether, "  &c. 


68  MABRIAGE. 


Ho.  8.  — Seg.  y.  Millii,  10  CL  &  Fin.  636-668. 


The  indictment  and  special  verdict  were  afterwards  removed  by 
certiorari  into  the  Court  of  Queen's  Bench  in  Ireland,  and  the 
case  was  argued  there  in  Easter  Term,  1842. 
[*  536]  *  The  Judges  of  the  said  Court  afterwards  delivered 
their  judgments  seriatim  on  the  said  case :  Mr.  Justice 
Perrin  was  in  favour  of  the  validity  of  the  first  marriage,  even  as 
a  marriage  per  verba  de  prcesenti,  and  ctmsequently  of  the  convic- 
tion ;  Mr.  Justice  Crampton  thought  it  a  valid  marriage,  but  only 
so  as  being  celebrated  by  a  Presbyterian  clergyman ;  Mr.  Justice 
Burton  thought  the  marriage  invalid  in  every  way,  and  with 
that  opinion  Lord  Chief  Justice  Pennefather  entirely  concurred. 

Afterwards,  and  for  the  purpose  of  obtaining  the  judgment  of 
this  House,  Mr.  Justice  Perrin  in  form  withdrew  his  judgment; 
and  thereupon  the  said  Court  adjudged  that  the  said  George 
Millis,  the  now  defendant  in  error,  was  not  guilty  of  the  felony 
in  the  indictment  charged  against  him,  and  he  was  thereupon 
acquitted. 

This  writ  of  error  was  then  brought. 

The  Attomey-Gteneral  and  Solicitor-Gteneral  addressed  the  House 
for  the  plaintiff  in  error ;  Mr.   Pemberton  and  Mr.  Kindersley  for 

the  defendant  in  error. 
[*  653]       *  Questions  were  then  put  to  the  Judges,  who  required 
time  to  consider  them. 

Lord  Chief  Justice  Tindal:  My  Lords,  the  first  question 
which  your  Lordships  have  proposed  to  Her  Majesty's  Judges  is 
the  following :  "  A.  and  B.  entered  into  a  present  contract  of 
marriage  per  verba  de  prcesenti  in  Ireland,  in  the  house  and  in  the 
presence  of  a  placed  and  regular  minister  of  the  congregation  of 
the  Protestant  dissenters  called  Presbyterians ;  A.  was  a  member 
of  the  Established  Church  of  England  and  Ireland ;  B.  was  not  a 
Soman  Catholic,  but  was  either  a  member  of  the  Established 
Church  or  a  Protestant  dissenter;  a  religious  ceremony  of  mar- 
riage was  performed  on  the  occasion  by  the  said  minister  between 
the  parties,  according  to  the  usual  form  of  the  Presbyterian  Church 
in  Ireland;  A.  and  B. ,  after  the  said  contract  and  ceremony, 
cohabited  and  lived  together  for  two  years  as  man  and  wife ;  A 
afterwards,  and  while  B.  was  living,  married  C.  in  England: 
Did  A.,  by  the  marriage  in  England,  commit  the  crime  of 
bigamy  ? " 

To  explain  the  grounds  of  our  answer  to  this  question,  it  is 


B.  C.  VOL.  XVn.]  MARRIAGE.  69 

Mo.  2.  —Beg.  y.  Millii,  10  Gl.  &  Fin.  668-656. 

convenient  to  consider,  in  the  first  instance,  separately,  the  gen- 
eral and  abstract  question,  what  were  the  nature  and  obligatory 
force  of  a  contract  of  marriage  per  verba  de  prcesenti,  by  the 
English  common  law,  previous  to  the  passing  of  the  Marriage 
Act  (1753),  26  Greo.  II.  (c.  33)  ?  and  then  to  consider  the  same 
question  with  reference  to  the  particular  conditions  and  circum- 
stances with  which  it  has  been  submitted  for  our  opinion. 

The  abstract  question  was  involved  in  much  obscurity,   [  654] 
even  at  the  time   of   the   debates  upon   the  bill   which 
became  law  in   1753,  and  has  become  involved  in  still   deeper 
obscurity  since  the  Act  has  made  the  question  nearly  obsolete. 

In  this  state  of  the  question,  it  is  only  after  considerable  fluctu- 
ation and  doubt  in  the  minds  of  some  of  my  brethren  that 
they  have  acceded  to  the  opinion  *  which  was  formed  by  [*  655] 
the  majority  of  the  Judges  upon  hearing  the  argument  at 
your  Lordships'  bar,  and  that  I  am  now  authorised  to  offer  to  your 
Lordships  as  our  unanimous  opinion,  that  by  the  law  of  England, 
as  it  existed  at  the  time  of  the  passing  of  the  Marriage  Act,  a 
contract  of  marriage  per  verba  de  prcesenti  was  a  contract  indis- 
soluble between  the  parties  themselves,  affording  to  either  of  the 
contracting  parties,  by  application  to  the  Spiritual  Court,  the 
power  of  compelling  the  solemnisation  of  an  actual  marriage ;  but 
that  such  contract  never  constituted  a  full  and  complete  marriage 
in  itself,  unless  made  in  the  presence  and  with  the  intervention 
of  a  minister  in  holy  orders. 

It  appears  that  at  various  periods  of  our  history  there  have  been 
decisions  as  to  the  nature  and  description  of  the  religious  solem- 
nities necessary  for  the  completion  of  a  perfect  marriage,  which 
cannot  be  reconciled  together ;  but  there  is  found  no  authority  to 
contravene  the  general  position,  that  at  all  times,  by  the  common 
law  of  England,  it  was  essential  to  the  constitution  of  a  full  and 
complete  marriage,  that  there  must  be  some  religious  solemnity ; 
that  both  modes  of  obligation  should  exist  together,  the  civil  and 
the  religious ;  that,  besides  the  civil  contract,  that  is,  the  contract 
per  verba  de  prcesenti,  which  has  always  remained  the  same,  there 
has  at  all  times  been  also  a  religious  ceremony,  which  has  not 
always  remained  the  same,  but  has  varied  from  time  to  time, 
according  to  the  variation  of  the  laws  of  the  church  :  with  respect 
to  which  ceremony  it  is  to  be  observed,  that  whatever  at  any 
time  has  been  held  by  the  law  of  the  church  to  be  a  suflScient 


70  MARRIAGE. 


Ho.  8.  —Beg.  y.  Sillii,  10  Gl.  &  Fin.  651^-657. 


religious  ceremony  of  marriage,  the  same  has  at  all 
[*  656]  *  times   satisfied  the   common   law   of  England   in  that 

respect.  If,  for  example,  in  early  times,  as  appears  to 
have  been  the  case,  from  the  Saxon  laws  cited  in  the  course  of 
the  argument,  the  presence  of  a  mass-priest  was  required  by  the 
church ;  and  if,  at  another  time,  the  celebration  in  a  church,  and 
with  previous  publication  of  banns,  has  been  declared  necessary 
by  the  ecclesiastical  law;  and,  lastly,  if,  since  the  time  of  the 
Reformation,  the  church  held  a  deacon  competent  to  ofl&ciate  at  a 
regular  marriage  ceremony,  —  with  each  of  these  modes  of  solemni- 
sation the  Courts  of  common  law  have  given  themselves  no  con- 
cern, but  have  altogether  acquiesced  therein,  leaving  such  matters 
to  the  8(Ae  jurisdiction  of  the  Spiritual  Court.  So  that,  where 
the  church  has  held,  as  it  often  has  done,  down  to  the  time  of 
passing  the  Marriage  Act,  that  a  marriage  celebrated  by  a  minister 
in  holy  orders,  but  not  in  a  church,  or  by  such  minister  in  a 
church,  but  without  publication  of  banns  and  without  license,  to 
be  irregular,  and  to  render  the  parties  liable  to  ecclesiastical 
censures,  but  sufficient  nevertheless  to  constitute  the  religious  part 
of  the  obligation,  and  that  the  marriage  was  valid  notwithstand- 
ing such  irregularity,  the  law  of  the  land  has  followed  the 
Spiritual  Court  in  that  respect,  and  held  such  marriage  to  be 
valid.  But  it  will  not  be  found  (which  is  the  main  consideration 
to  be  attended  to),  in  any  period  of  our  history,  either  that  the 
Church  of  England  has  held  the  religious  celebration  sufficient  to 
constitute  a  valid  marriage,  unless  it  was  performed  in  the  presence 
of  an  ordained  minister,  or  that  the  common  law  has  held  a  mar- 
riage complete  without  such  celebration. 

My  Lords,  in  endeavouring  to  show  the  grounds  upon 
[*  657]  which  we  hold  that  such  is  the  common  law  *  of  this 

realm,  I  shall  first  consider  the  decisions  which  have 
taken  place  in  our  Courts  of  common  law.  I  shall  next  advert  to 
certain  statutes  passed  by  the  Legislature  at  various  periods,  tend- 
ing to  throw  light  upon  the  obscure  subject  now  under  discussion, 
and  which  appear  to  confirm  the  opinion  we  have  formed :  and, 
lastly,  shall  call  attention  to  the  doctrine  of  the  King's  eccle- 
siastical law,  as  established  and  administered  in  this  country ;  by 
which  alone,  and  not  by  the  general  canon  law  of  Europe,  still 
less  by  the  civil,  are  the  marriages  of  the  Queen's  subjects 
regulated  and  governed. 


fi.  C.  VOL.  XVU.]  MAERLA.GE.  71 

Ho.  S.— Beg.  y.  Mmii,  10  a  &  Fin.  667-669. 

With  respect  to  the  decisions  of  the  Courts  of  law  and  the  other 
common-law  authorities,  if  no  case  can  be  referred  to  directly  and 
distinctly  laying  it  down  as  law,  in  so  many  words,  that  a  con- 
tract ficr  verba  de  prcesenti  alone,  and  without  the  intervention  of  a 
minister  in  orders,  is  not  sufficient  to  create  a  valid  and  complete 
marriage,  yet  such  conclusion  is  necessary  from  many  of  the 
decided  cases,  and  is  inconsistent  with  none;  nor  in  fact  could 
the  difficulty  to  be  determined  in  any  of  the  cases  ever  have 
existed,  except  upon  the  supposition  that  some  religious  ceremony 
vas  necessary  to  the  contract:  thus  leading  to  the  conclusion 
above  laid  down,  that  by  the  law  of  England  the  contract  per 
verba  de  prcesenti  alone  did  not  constitute  a  full  and  complete 
marriage. 

*  The  earliest  case  referred  to  in  the  argument  is  the  [*  658] 
note  from  Lord  Hale's  manuscripts,  to  be  found  in  Coke, 
Littleton,  33  a,  n.  10.     That  case  is,  that  A.  contracts  per  verba 
de  prcesenti  with  B.  and  has  issue  by  her,  and  afterwards  marries  | 

C.  in  facie  ecclesice;  B.  recovers  A.  for  her  husband  by  sentence  of  I 

the  Ordinary ;  and  for  not  performing  the  sentence  he  is  excom-  ' 

municated,  and  afterwards  enfeoffs  D.    and   then  marries  B.   in  j 

facie  ecclesice,  and  dies.     B.  brings  dower  against  D. ,  and  recovers,  i 

because  the  feoffment  was  per  fraudem  mediate  between  the  sen- 
tence and   the  solemn  marriage,  "  sed  reversatur  coram  Bege  et  ! 
Concilio  quia  praedictus  A.  non  f  uit  seisitus,  during  the  espousals 
between  him  and  B.     Nota^  neither  the  contract  nor  the  sentence 
was  a  marriage.  '  | 

The  Curia  Begis  et  Concilii,  before  which  the  reversal  took 
place,  appears,  according  to  the  researches  of  antiquarians,  to  have 
been,  in  the  time  of  Edward  1. ,  a  tribunal  of  appeal  in  cases  of 
difficulty,  and  to  have  consisted  at  that  time  of  the  Chancellor, 
the  Treasurer  and  Barons  of  the  Exchequer,  the  Judges  of  either 
Bench,  and  other  functionaries;  which  Court  of  the  Concilium 
R^is  was  perfectly  distinct  from  the  Commune  Concilium  Eegni, 
the  probable  original  of  the  English  Parliament. 

Lord  Hale  speaks  largely  of  this  Court  in  his  Treatise  on  the 
Jurisdiction  of  the  House  of  Lords;  and  various  references  to 
and  extracts  from  its  proceedings  are  to  be  found  in  the  learned 
Introduction  to  the  **  Rotuli  Litterarum  Clausarum, "  lately  pub- 
lished by  the  Record  Commissioners.  The  judgment,  there- 
fore, of  such  a  Court  of  error  is  of  the  highest  *  weight.   [*  659] 


72  MAKBIAGS. 


Ho.  2.  —Beg.  y.  Xillis,  10  a  &  Fin.  669,  600. 


Lord  Hale's  observation  on  the  case  is,  *  that  the  sentence  was 
not  a  marriage;"  in  making  which  observation  he  is  probably 
alluding  to  a  question  which,  about  the  time  he  was  making  his 
collection  of  notes,  was  a  matter  of  contest  in  Westminster  Hall ; 
viz. ,  whether  the  man  and  woman  were  not  complete  husband  and 
wife  by  the  sentence  of  the  Spiritual  Court,  without  any  other 
solemnity :  as  it  appears  in  Payne's  Case,  1  Siderf.  13,  that  Mr. 
Attomey-Gteneral  Noy  had  afl&rmed  such  to  be  the  law,  whilst 
TwiSDEN,  Justice,  denied  it,  saying  that  the  marriage  must  be 
solemnised  before  they  were  complete  husband  and  wife. 

The  result,  however,  of  the  case  above  referred  to  is,  that  in  the 
judgment  of  the  Court  of  Error  there  was  no  complete  marriage 
until  after  the  actual  solemnisation  of  the  marriage  under  the 
sentence  of  the  Court;  and,  upon  the  ground  that  the  husband 
enfeoffed  D.  before  such  solemnisation,  there  was  no  seisin  in  him 
during  the  marriage,  and  therefore  no  dower.  But  the  object  at 
present  is,  to  learn  from  the  case  whether,  in  the  opinion  of  the 
Court,  the  contract  per  verba  de  prcesenti  did  alone  constitute  a 
marriage ;  and,  both  from  the  judgment  of  the  Court  below  and  of 
the  Court  of  Error,  the  conclusion  appears  inevitable,  that  each 
Court  thought  such  contract  alone  did  not  constitute  marriage: 
for  the  case  sets  out  with  stating  that  "  A.  contracts  with  B.  per 
verba  de  pra^senti ;  "  and  if  this  contract  had  alone  constituted 
marriage,  then  was  there  seisin  in  the  husband  during  the  mar- 
riage and  before  the  feoffment  to  D. ,  and  the  reason  given  by  each 
of  the  Courts  for  their  respective  judgments  would  have 
[*660]  *  failed.  Observe,  also,  the  difference  of  language  em- 
ployed in  the  statement  of  the  facts  of  the  case :  the  con- 
tract per  verba  de  prcesenti;  the  subsequent  statement  that  A. 
married  B.  ;  the  contract ;  and  the  subsequent  reason  by  the  Court 
of  Error,  that  there  was  no  seisin  during  the  espousals.  Can  the 
expressions  of  contract  on  the  one  hand,  and  of  marriage  and 
espousals  on  the  other,  possibly  be  considered  as  synonymous, 
and  referring  to  the  same  obligation  ?  And  this  agrees  expressly 
with  Hale's  inference  from  the  case,  "  that  the  contract  is  not  a 
marriage. " 

FoxcrofVs  Case,  1  Eolle's  Abridg.  359,  which  appears  to  have 
been  in  the  same  year,  is  next  in  order :  "  R  being  infirm,  and  in 
his  bed,  was  married  to  A.  by  the  Bishop  of  London,  privately, 
in  no  church  or  chapel,  nor  with  the  celebration  of  any  mass,  the 


B.  C.  VOL.  XVII.]  MARRIAGB.  73 

Ho.  8.  —Beg.  y.  MiUia,  10  Cfl.  &  Fm.  660,  661. 

said  A.  being  then  pregnant  by  the  said  R  ;  and  afterwards, 
within  twelve  weeks  after  the  marriage,  the  said  A.  is  delivered  of  a 
son,  and  adjudged  a  bastard,  and  so  the  land  escheated  to  the  lord, 
by  the  death  of  R  without  heir.  "  Now  it  is  to  be  observed  that 
this  case  must  have  been  decided  upon  the  usual  plea  of  bastardy 
in  a  real  action ;  the  writ  must  have  been  sent  in  the  usual  form 
by  the  Court  of  law  to  the  Ordinary ;  the  certificate  also  returned 
by  him  in  the  usual  form.  Bracton,  in  book  5,  c.  19,  gives 
various  instances  of  the  proceedings  in  cases  of  bastardy,  with  the 
greatest  possible  minuteness ;  and  amongst  others,  that  in  sect  11 
probably  would  be  the  form  applicable  to  this  particular  case; 
viz. ,  "  an  pater  suus  desponsavit  matrem  suam ;  '  and  it  could  not 
have  been  until  after  the  certificate  of  the  Ordinary,  afl&rming 
or  denying  the  marriage,  that  the  judgment  of  the 
*  Court  could  be  given.  Let  it  be  conceded  that  the  [•  661] 
Ordinary  certified  in  this  instance  the  marriage  to  be  void, 
which,  according  to  the  ecclesiastical  law,  as  then  in  force  in 
England,  he  ought  to  have  found  good,  but  irregular  only,  and 
exposing  the  parties  to  ecclesiastical  censures ;  and  let  it  be  further 
conceded  that  the  Court  of  common  law  acted  upon  such  finding, 
and  gave  judgment  against  the  demandant,  as  indeed  it  could  not 
do  otherwise;  still  the  weight  of  this  authority  on  the  question 
before  us  remains  the  same.  Was  a  contract  per  verba  de  prcesenti, 
without  anything  more,  held  at  that  time  to  be  a  complete  mar- 
riage ?  is  the  question.  If  it  was,  the  Ordinary  must  have  returned 
that  R  had  married  A. ;  for  no  doubt  has  been  or  can  be  raised, 
that  when  the  Bishop  of  London  married  the  two  parties,  as  stated 
in  the  case,  he  married  them  per  verba  de  prcesenti.  If,  therefore, 
the  contract  per  verba  de  prcesenti  had  by  the  law  of  England  then 
made  a  marriage,  the  parties  were  actually  married ;  but  if  the 
Ordinary  finds  the  marriage  bad,  even  where  the  ceremony  was 
performed  by  a  bishop,  because  celebrated  at  an  improper  place, 
the  inference  appears  irresistible  that  some  religious  ceremony 
was  necessary,  and  that  words  of  present  contract  alone  did  not  at 
that  time,  by  the  law  of  England,  constitute  a  marriage. 

Bel  Heith's  Case,  34  Edward  I.,  is  precisely  the  same  in  its 
leading  facts,  and  in  the  conclusion  at  which  the  Court  of  common 
law  arrives,  that  a  contract  per  verba  de  prcesenti^  even  before  the 
parish  priest,  was  not  sufficient ;  but  the  concluding  words  of  the 
record  are  too  strong  to  be  passed  over  in  silence :  "  Quaesitum  fuit 


74  MARKIAGE. 


Ho.  2.  —  Eeg.  ▼.  MUlii,  10  GL  &.  Fin.  661-663. 


si  aliqua  sponsalia  in  facie  ecclesiae  inter  eos  celebrata 
[*662]  fuerunt    postquam    prsedictus    *  Johannes    convaluit    de 

praedicta  infirmitate.  Dicunt  quod  non.  £t  quia  con* 
victum  est  per  assisam  istam  quod  prsedictus  Johannes  Del  Heith 
nunquam  desponsavit  prsedictam  Katherinam  in  facie  ecclesiae  per 
quod  sequitur  quod  praedictus  W.  filius  Johannis  nihil  juris 
clamare  potest  in  prsedictis  tenementis  sed  in  misericordia  pro 
falso  clamore. ' 

The  conclusion  to  be  drawn  from  the  comparison  of  two  cases 
to  be  found  in  1st  EoUe's  Abridgment,  p.  360,  leads  to  the 
same  inference,  that  the  contract  per  verba  de  prcesenti  was  not  a 
complete  marriage  in  the  time  of  Henry  VI.  The  first  is  at  F. 
placitum  1 :  "A  man  who  hath  a  wife  takes  another  wife,  and 
hath  issue  by  her ;  this  issue  is  bastard  by  both  laws  (that  is,  the 
common  law  and  the  ecclesiastical  law),  for  the  second  marriage 
is  void. "  On  the  same  page  he  lays  it  down,  in  G.  placitum  1, 
a  divorce  causCi  prcecontractus  bastardises  the  issue :  the  same 
case,  in  the  Year  Book,  18th  Hen.  VI.,  p.  34,  being  cited  for 
both  positions.  But  if  the  contract  alone  makes  the  marriage,  if 
it  is  itself  ipsum  matrimonium,  where  is  the  necessity  for  a 
divorce  in  the  second  case  to  bastardise  the  issue,  which  it  is 
admitted  is  not  necessary  in  the  former  case?  They  cannot  be 
reconciled  together,  except  upon  the  supposition  that  "  having  a 
wife  "  and  "  taking  a  wife, "  that  is  "  actual  marriage, "  was  at  that 
time  held  to  be  one  thing,  and  "  a  contract  of  marriage  **  another, 
falling  short  of  the  marriage  itself.  The  authority  of  Perkins, 
sect  306  (whose  statements,  from  his  citation  of  the  Year  Books, 
may  be  placed  conveniently  amongst  the  decisions  of  the  Courts 
of  law),  is  to  the  same  effect:  "If  a  man  seised  of  land  in  fee 
make  a  contract  of  matrimony  with  I.  S. ,  and  he  die  before  the 

marriage  is  solemnised  between  them,  she  shall  not  have 
[*663]  *  dower,  for  she  never  was  his  wife."     Perkins,  indeed, 

goes  on  to  say,  in  the  same  section,  *  And  it  hath  been 
holden  in  the  time  of  King  Henry  III. ,  that  if  a  woman  had  been 
married  in  a  chamber,  that  she  should  not  have  dower  by  the 
common  law ;  but  the  law  is  contrary  at  this  day. "  But,  what- 
ever is  his  opinion  of  the  alteration  of  the  law  as  to  the  case  of 
the  private  marriage  (by  which  he  probably  meant  the  ecclesias- 
tical law  as  to  the  solemnities  requisite,  which  in  fact  had  been 
altered),  still  it  has  no  relation  to  his  first  position,  which  is  full. 


B.  C  VOL.  XVII.]  MARRIAGE.  75 

Ho.  8.~Beg.  ▼.  Xmii,  10  a  &.  Fin.  668,  664. 

complete,  and  express  to  the  very  point  now  under  consideration. 
His  observation  amounts  to  no  more  than  this,  that  in  Henry 
III.  's  time  a  marriage  was  held  void  which  in  his  day  (the  reign 
of  Queen  Elizabeth)  would  be  held  irregular  only ;  and,  further, 
the  observation  is  strong,  that  Perkins  must  have  meant  a  differ- 
ent thing  by  the  two  phrases,  "  contract  of  matrimony "  and 
"  marrying  in  the  chamber ;  **  and  what  other  difference  can  be 
suggested,  except  that  the  one  was  a  contract  by  words  only,  the 
other  a  contract  accompanied  by  a  religious  ceremony  ? 

Again,  the  doctrine   laid   down  by  Perkins,  title  Feoffments, 
placitum  194  (for  which  he  cites  the  Year  Book  38  Edw.  III. , 
pi.  12),  shows  the  diversity  at  that  time  between  a  contract  and  a 
marriage :  "  If  a  contract  of  marriage  be  between  a  man  and  a 
woman,  yet  one  of  them  may  enfeoff  the  other,  for  yet  they  are 
not  one  person  in  law;  inasmuch  as  if  the  woman  dieth  before 
the  marriage  solemnised  betwixt  them,  the  man  unto  whom  she 
was  contracted  shall  not  have  the  goods  of  the  wife  as  her  hus- 
band, but  the  wife  thereof  may  make  a  will  without  the  agree- 
ment of  him  unto  whom  she  was  contracted,"  &c.  ;  and 
at  the  close  of  the  next  placitum  he  says,  **  But  *  after  the  [*  664] 
marriage  celebrated  between  a  man  and  a  woman  the  man 
cannot  enfeoff  his  wife,  for  then  they  are  as  one  person  in  law. " 
Bracton,  in  book  2,  c.  9,  entitled  "  Si  vir  uxori  donationem  facere 
possit  constante  matrimonio, "  may  be  thought  to  leave  the  matter 
in  some  doubt  whether  such  gifts  would  be  good  even  after  the 
contract,  as  he  says,  "  Matrimonium  autem  accipi  possit  sive  sit 
publico  contractum  vel  fides  data  quod  separari  non  possunt;  et 
re  vera  donationes  inter  virum  et  uxorem  constante  matrimonio 
valere  non  debent. "     Now,  even  if  it  is  considered  that  by  the 
"  fides  data  "  Bracton  understood  a  contract  per  verba  de  prcesenti, 
without  any  solemnity,  it  is  enough  to  say  he  could  not  be  writ- 
ing as  a  common  lawyer  (in  fact  he  was  a  civilian)  when  he  is 
found  to  differ  from  the  authority  of  the  Year  Books. 

The  case  of  Bunting  v.  Lejnngwell,  Moore,  27  &  28  Eliz,,  is  of 
great  weight,  and  of  immediate  bearing  upon  the  point  in  ques- 
tion. Taking  the  facts  from  the  two  reporters,  Moore,  169 ;  4 
Co.  Bep.  29  a,  it  appears  that  Bunting  and  Agnes  Addisall  con- 
tracted matrimony  between  them  per  verba  deprcesenti  tempore^  and 
afterwards  Agnes  took  to  husband  Thomas  Twede,  and  cohabited 
with  him ;    and  afterwards  Bunting  sued  Agnes  in  the  Court  of 


76  MARRIAGE. 


Vo.  8.  —Beg.  ▼.  XiUii,  10  CL  &.  Fin.  66^-^66. 


Audience,  and  proved  the  contract,  and  the  sentence  was  pro- 
nounced, "  Quod  praedicta  Agnes  subiret  matrimonium  cum  prse- 
fato  Bunting,  et  insuper  pronuntiatum  decretum  et  declaratum 
fuit  dictum  matrimonium  fore  nullum,*  &c.,  which  marriage 
between  Bunting  and  Agnes  took  place  according  to  the  sentence, 
and  they  had  issue  one  Charles   Bunting;  and  whether  Charles 

Bunting  was  son  and  heir,  was  the  question  for  the  jury 
[*  665]  in  an  *  action  of  trespass  brought  by  him ;  and  the  Court 

held  him  legitimate,  and  no  bastard.  The  argument  be- 
fore the  Court  turned  principally  on  the  invalidity  of  the  sentence 
of  the  Spiritual  Court,  by  reason  of  Twede,  the  husband  de  facto, 
not  being  made  a  party  to  the  proceedings  by  which  his  marriage 
was  declared  null;  the  Court,  however,  holding  itself  bound  to 
give  credit  to  the  Spiritual  Court  that  the  proceedings  were  regu- 
lar. But  the  bearing  of  the  case  upon  the  point  now  under  discus- 
sion is,  whether  it  establishes  a  distinction  between  the  contract 
to  marry  and  "  ipsum  matrimonium, '  and  such  seems  the  neces- 
sary inference.  This  was  a  trial  before  the  Judges  of  the  common 
law,  who  called  for  the  assistance  of  civil  lawyers  to  argue  the 
case  before  them,  but  who  must  be  supposed  to  know  themselves 
what  was  the  common  law ;  and  if  the  contract  per  verba  de 
prcesenti  between  Bunting  and  Agnes  had  been  what  the  common 
law  had  then  recognised  as  an  actual  marriage,  the  second  mar- 
riage would  have  been  held  void  without  any  controversy;  no 
doubt  would  have  existed,  and  no  civilian  would  have  been 
consulted,  any  more  than  if  it  had  been  a  marriage  celebrated  in 
facie  eccksice.  It  is  also  not  unworthy  of  remark,  that  the  sen- 
tence of  the  Spiritual  Court,  "  Quod  prsedicta  Agnes  subiret  matri- 
monium cum  praefato  Bunting,"  proves  that  not  even  by  the 
ecclesiastical  law,  as  administered  in  England,  was  such  contract 
held  to  constitute  a  complete  marriage  without  the  intervention  of 
the  religious  ceremony. 

The  case  of    Wild  v.    Chamberlayne,  2  Shower,  p.   300,   is  so 
far  of  importance,  as  it  affords  direct  proof  that  in  the  opinion 

of  Chief  Justice  Pemberton,  on  the  trial  of  an  issue 
[*  666]  *  "  marriage  or  no  marriage, "  words  of  contract  de  pra^enti 

tempore,  repeated  after  a  person  in  orders,  was  a  good 
marriage ;  for  it  was  only  by  importunity  of  counsel  a  case  was 
to  be  made  thereof.  If  such  a  contract,  alone  and  unaccompanied 
by  a  religious  ceremony,  had  been  a  marriage,  surely  the  case 


B.  C.  VOL.  XVII.]  MARRIAGE.  77 

Ho.  8.  —Beg.  ▼.  Millis,  10  GL  &/  Fin.  686,  687. 

would  have  been  decided  on  a  shorter  ground,  and  the  objections, 
that  the  parson  was  an  ejected  minister,  and  that  the  ring  was 
not  used  at  the  ceremony,  according  to  the  ritual  of  the  Church  of 
Eugland,  would  never  have  been  urged. 

In  the  case  of  Hay  don  v.  Gould,  1  Salk.  119,  Haydon  and  his 
wife  were  Sabbatarians,  and  married  by  one  of  their  ministers  in  a 
Sabbatarian  congregation,  using  the  form  of  the  common-prayer, 
except  the  ring ;  but  the  minister  was  a  mere  layman,  and  not  in 
orders;  and  after  administration  granted  to  Haydon,  and  subse- 
quently repealed,  the  Court  of  Delegates  affirmed  the  sentence  of 
repeal.  The  reason  given  is,  "  That  Haydon,  demanding  a  right 
due  to  him  as  husband  by  the  ecclesiastical  law,  must  prove  him- 
self a  husband  according  to  that  law,  to  entitle  himself  in  this 
case. "  In  this  case,  the  book  adds,  it  is  urged  that  this  marriage 
was  not  a  mere  nullity,  because  by  the  law  of  nature  it  was  suffi- 
cient; and  though  the  positive  law  ordains  it  shall  be  by  a  priest, 
yet  that  makes  such  a  marriage  as  this  irregular  only,  but  not 
void ;  but  the  Court  ruled  ut  supra  ;  the  reporter  adding,  that  the 
constant  form  of  pleading  marriage  is,  *  per  presbyterum  sacris 
ordinibus  constitutum. "  Perhaps  the  more  correct  expression 
might  have  been,  **  per  ministrum  sacris  ordinibus  constitutum ;  ' 
for,  undoubtedly,  after  the  Eeformation,  a  marriage  might 
*  be  as  well  solemnised  by  a  deacon  as  a  priest  But  [*  667] 
what  is  the  whole  result  of  the  case  but  this,  that  by  the 
English  ecclesiastical  law  a  contract  of  marriage  'per  verba  de 
prcesenti  was  not  alone  sufficient  (for  such  contract  there  was  in 
fact) ;  but  that  by  the  same  law,  to  make  the  marriage  complete, 
there  must  be  the  presence  and  intervention  of  the  priest  ?  And 
when  it  is  asked,  as  it  was  at  your  Lordships'  bar,  what  had  the 
priest  to  do,  or  what  had  he  to  say  ?  the  answer  must  be,  that  he 
married  them,  and  in  doing  so  he  used  such  form  of  words  as  were 
customary  at  the  time  of  his  performing  the  ceremony.  The 
form  of  words  of  present  contract  found  in  the  ritual  of  the 
Church  of  England  as  established  by  the  authority  of  Parliament 
in  the  2  &  3  Edw.  VI. ,  c.  1,  was  not  then  for  the  first  time  made, 
but  in  part  altered  and  in  part  retained  from  tha  former  rituals 
which  had  been  handed  down  from  the  greatest  antiquity;  just 
as  it  was  declared  by  the  Council  of  Trent  (Session  24,  c.  1),  when 
it  prescribes  certain  words  to  be  used  by  the  parish  priest  when 
performing  the  office   of  matrimony ;  viz. ,  "  Ego  vos  in   matri- 


78  MARBIAGE. 


Vo.  2.  — Beg.  ▼.  XilUs,  10  a  &/  Fin.  6e7-MI. 


monium  conjungo,  in  nomine  Patris  et  Filii  et  Spiritus  SanctL  * 
The  decree  also  adds,  "  Vel  aliis  utatur  verbis,  juxta  receptum 
uniuscujusque  provinciae  ritum. ' 

The  only  remaining  decision  of  a  Court  of  common  law,  to 
which  it  may  be  necessary  to  refer,  is  the  case  of  The  Queen  v. 
Fielding,  upon  an  indictment  for  bigamy,  14  State  Trials,  1327. 
The  evidence  given  of  the  first  marriage  was,  that  the  parties  made 
a  contract  per  verba  de  prctsenti  in  English,  in  the  presence  of  and 
following  the  words  of  a  priest  in  orders,  though  he  was  a  priest 

in  the  orders  of  the  Church  of  Eome;  and  Mr,  Justice 
[*  668]  *  Powell,  in  summing   up   the   case  to  the  jury,  more 

than  once  adverts  to  the  fact  that  the  marriage  was  by  a 
priest.  "  If  you  believe  Mrs.  Villars,  *  he  says,  "  there  was  a 
marriage  by  a  priest."  There  is  no  retison  to  infer  from  this 
direction  to  the  jury,  that  if  the  first  marriage  in  this  case  had 
been  merely  a  contract  per  verba  de  prcesenti,  in  the  persence  of  a 
layman,  the  offence  of  bigamy  must  have  been  committed ;  but  the 
inference  to  be  drawn  from  the  summing  up  of  the  Judge  is 
directly  the  reverse. 

My  Lords,  this  being  the  state  of  the  decided  cases  from  the 
earliest  time  to  the  time  of  Queen  Anne,  the  principal  direct 
authority  adduced  on  the  part  of  the  Crown  is  the  dictum  of  Lord 
Holt,  in  Jesson  v.  Collins,  2  Salk  437,  **  that  a  contract  per  verba 
de  prcesenti  was  a  marriage,  and  this  is  not  releasable ; "  and  the 
decisions  which  have  subsequently  taken  place.  That  case  came 
before  the  Court  upon  a  motion  for  a  prohibition,  upon  a  sugges- 
tion that  the  contract  was  in  fact  per  verba  de  futuro,  for  which 
the  party  had  remedy  at  common  law,  and  the  case  was  disposed 
of  by  the  Court,  and  the  prohibition  refused,  upon  the  ground 
that  the  Spiritual  Courts  have  jurisdiction  of  all  matrimonial 
causes  whatsoever,  and  that  there  was  no  reason  to  prohibit  them, 
because  this  may  be  a  future  contract  for  breach  of  which  an 
action  at  law  will  lie.  This  appears  distinctly  from  the  reports 
of  the  same  case  in  6  Modern,  155;  and  Holt's  Eeports,  457. 
This  being  the  state  of  the  case,  Holt,  Ch.  J. ,  in  speaking  to  it 
before  the  Court,  used  the  expression  above  referred  to.  It  is 
obvious,  in  the  first  place,  it  was  unnecessary  to  the  case  before 

the  Court ;  for,  whether  present  words  or  future  words,  the 
[*  669]  prohibition  *  must  equally  be  refused.     The  observation, 

therefore,  is  not  entitled  to  the  same  weight  and  author- 


R.  a  TOL.  xvil]  marriage.  79 

Ho.  8.  — Beg.  ▼.  Xmis,  10  Gl.  &  Fin.  669,  670. 

ity  as  if  it  had  been  the  very  point  of  the  case  before  the  Court 

If  by  the  terms  "  ipsum  matrimonium,'*  Lord  Holt  intended  to 

lay  down  the  position  that  it  was  so  held  by  the  common  law  of 

the  land,  notwithstanding  the  unbounded  respect  which  all  who 

bave  succeeded  him  have  ever  felt  and  still  feel  for  his  learning 

aad  ability,  we  ccmnot  accede  to  his  opinion.     If,  however,  the 

observation  was  intended  with  reference  to  the  civil  law  or  the 

caixon  law  of  Europe,  then  it  is  perfectly  correct ;  and  that  such 

^^  the  intention  of  Lord  Holt  we  think  abundantly  clear  from 

^i^fTnore's  Case,  which  follows  the  former  in  the  same  page  of 

Salkeld,  and  which  was  decided  three  years  later  than  the  first 

^  that  case  the  husband  was  an  Anabaptist,  and  had  a  license 

irom  the  bishop  to  marry,  but  married  this  woman  according  to 

the  forms  of  his  own  religion ;  et  per  Holt,  Ch.  J. ,  *  By  the  canon 

law,  a  contract  per  verba  deprcesenti  is  a  marriage. " 

In  Holt's  Eeports  the  expression  is  precisely  the  same,  **  by 
the  canon  law;"  and  Lord  Chief  Justice  Holt  is  there  made 
further  to  say,  "  In  the  case  of  a  dissenter  married  to  a  woman  by 
a  minister  of  the  congregation  who  was  not  in  orders,  it  is  said 
that  this  marriage  was  not  a  nullity,  because  by  the  law  of  nature 
the  contract  is  binding  and  sufficient ;  for  though  the  positive  law 
of  man  ordains  that  marriages  shall  be  made  by  a  priest,  that  law 
only  makes  this  marriage  irregular,  and  not  expressly  void ;  but 
marriages  ought  to  be  solemnised  according  to   the  rites  of  the 
Church  of  England  to  entitle  the  privileges  attending  legal  mar- 
riage, as  dower,  thirds, "  &c.     It  cannot  be  supposed  that 
Lord  Holt  would   limit  the  observation  *to  the   canon  [*670] 
law,  as  undoubtedly  he  did  in  Wigmore^s  Case,  if  it  had 
been  maintainable  in  the  larger  and  unqualified  extent  supposed 
to  have  been  stated  by  him  in  the  case  of  Jesson  v.  Collins;  and 
if  the  latter  statement  agrees  with  all  the  authorities,  and  the 
former  is  not,  as  we  conceive,  supported  by  or  consistent  with 
them,  we  are  bound  to  infer,  either  that  there  is  some  error  in  the 
reporter,  or  that  he  really  meant  the  proposition  to  be  limited  to 
its  more  restrained  sense. 

This  dictum  of  Lord  Chief  Justice  Holt  is  of  the  more  impor- 
tance because  it  appears  to  have  been  the  origin  of  all  the  subse- 
quent opinions  expressed  by  different  Judges  to  the  same  effect 
When  Sir  Willum  Scott  lays  it  down  as  the  law  recognised  by 
the  temporal  Courts  of  this  kingdom,  he  cites  this  dictum  of  Lord 


80  MARRIAGE. 


Ho.  8.  —Beg.  y.  ICnii,  10  CL  &  Fin.  870,  071. 


Chief  Justice  Holt,  which  he  observes  (as  he  is  justified  in  doing 
by  the  report  in  6  Modern)  was  agreed  to  by  the  whole  Bench. 
When  GiBBS,  Ch.  J.,  makes  the  same  observation,  he  expressly 
relies  on  the  authority  of  Sir  Wiluam  Scott.  Lautour  v.  Teesdale, 
8  Taunt  830  (17  R  R  518).  When  Lord  Kenton  makes  a  similar 
observation,  probably  on  the  same  authority,  observe  how  care- 
fully he  guards  himself :  "  I  think, "  he  says,  "  though  I  do  not 
speak  meaning  to  be  bound,  that  even  an  agreement  between  the 
parties  per  verba  de  prcesenti  is  ipttum  matrimonium. "  Reed  v. 
Passer  and  Others,  1  Peake,  303  (3  R  R  696).  When  Lord 
Ellenborough  lays  down  the  same  doctrine  in  Rex  v.  The  Inhabi- 
tants of  Brampton,  10  East,  282  (10  R  R  299),  he  is  giving 
judgment  in  a  case  of  a  marriage  per  verba  de  prcesenti  celebrated 
by  a  priest  (though  whether  Boman  Catholic  or  Protestant,   he 

says,  does  not  appear);  and  when  he  refers  to  the 
[*  671]  *  authority  of  Holt,  Ch.  J. ,  it  is  clear  he  considered  Lord 

Holt  to  have  been  speaking  of  a  marriage  through  the 
intervention  of  a  priest  It  is  therefore  of  very  great  importance 
to  estimate  justly  the  weight  of  Lord  Holt's  observation,  when 
contrasted  with  the  large  field  of  authorities  which  has  been 
opened;  upon  which  authorities  I  have  been  longer  occupied, 
because  the  question  whereon  we  are  called  to  answer  depends 
upon  the  common  law  of  England,  of  which  the  ecclesiastical  law 
forms  a  part 

It  will  be  improper,  however,  to  close  the  discussion  of  this 
part  of  the  case  without  adverting  to  an  argument  urged  at  your 
Lordships'  bar,  upon  which  some  reliance  appears  to  have  been 
placed ;  namely,  the  state  of  the  marriages  of  Quakers  (all  doubt 
as  to  which  marriages  is  now  set  at  rest  by  the  statute  passed  in 
1835)  and  of  Jews. 

The  argument  in  substance  was  this :  that  as  the  persons  profess- 
ing the  opinions  of  those  respective  persuasions  celebrated  their 
marriages  according  to  their  own  peculiar  rites,  which  necessarily 
excluded  the  intervention  of  a  person  in  holy  orders,  according  to 
the  sense  which  those  words  are  asserted  to  convey;  and  as  their 
marriages  have  been  held  legal  with  respect  (as  it  is  argued)  to  all 
the  consequences  attending  marriage,  such  as  legitimacy,  admin- 
istration, and  other  civil  rights ;  so  the  validity  of  such  marriages 
can  only  be  grounded  upon  the  assumption  that  a  contract  of  mar- 
riage per  verba  de  prcesenti  did  by  law  constitute  a  marriage  itself. 


R.C.YOL.  XVIL]  marriage.  81 

Vo.  8.  —  Beg.  y.  xmis,  10  d.  6o  Fin.  671-673. 

Since  the  passing  of  the  Marriage  Act  it  has  generally  been 
supposed  that  the  exception  contained  therein  as  to  the  marriages 
of  Quakers  and  Jews  amounted  to  a  tacit  acknowledgment  by  the 
Legislature  that  a  marriage,  solemnised  with  the  religious 
♦ceremonies  which  they  were  respectively  known  to  adopt,  [*  672] 
ought  to  be  considered  sufficient ;  but  before  the  passing 
of  that  Act,  when  the  question  was  left  perfectly  open,  we  find  no 
case  in  which  it  has  been  held  that  a  marriage  between  Quakers 
vas  a  legal  marriage  on  the  ground  that  it  was  a  marriage  by  a 
contract  ;^r  verba  de  prcesenti;  but,  on  the  contrary,  the  inference 
is  strong,  that  they  were  never  considered  legal.  The  Legisla- 
twe,  in  the  statute  6  &  7  Will.  IIL,  c.  6,  s.  63,  enacts,  that  all 
Qiiakers  and  Jews,  and  any  other  persons  who  should  cohabit  and 
live  together  as  man  and  wife,  should  pay  the  duty  thereby 
iDaposed  on  marriages,  and  that  upon  every  pretended  marriage 
Daade  by  them  they  should  give  five  days'  notice ;  with  an  express 
provision  in  the  64th  section,  that  nothing  in  the  Act  contained 
should  be  construed  *  to  make  good  or  effectual  in  law  any  such 
marriage  or  pretended  marriage,  but  that  they  should  be  of  the 
same  force  and  virtue,  and  no  other,  as  if  the  Act  had  not  been 
made, "  And  the  case  before  Lord  Hale,  to  which  so  much  weight 
was  attributed,  as  conveying  his  opinion  that  the  marriage  was 
good,  appears  rather  to  show  his  opinion  to  have  been  the  reverse. 
He  declared  "  that  he  was  not  willing,  on  his  own  opinion,  to 
make  their  children  bastards ;  and  gave  directions  to  the  jury  to 
find  it  special : "  a  declaration  which  plainly  intimates  that  the 
inclination  of  his  own  mind  was  that  the  marriage  was  not  good 
We  cannot,  therefore,  think  that  the  case  of  the  Quakers,  although 
certainly  one  which  it  is  difficult  altogether  to  dispose  of,  amounts 
to  such  a  difficulty  as  to  induce  us  to  alter  the  opinion  founded  on 
the  authority  of  the  decided  cases. 

And  as  to  the  case  of  the  Jews,  it  is  well  known  that 
in  early  times  they  stood  in  a  very  peculiar  and  *  excepted  [*  673] 
condition.  For  many  centuries  they  were  treated,  not  as 
natural-bom  subjects,  but  as  foreigners,  and  scarcely  recognised  as 
participating  in  the  civil  rights  of  other  subjects  of  the  Crown. 
The  ceremony  of  marriage  by  their  own  peculiar  forms  might 
therefore  be  regarded  as  constituting  a  legal  marriage,  without 
affording  any  argument  as  to  the  nature  of  a  contract  of  marriage 
per  vtrla  de  prcesenti  between  other  subjects.     But  even  in  the 

VOL.  XVII.  —  6 


82  MABBIA6E. 


Vo.  8.  —Beg.  ▼.  Xmis,  10  GL  &  Tin.  678-679. 


case  of  a  Jewish  marriage  it  was  more  than  a  mere  contract;  it 
was  a  religious  ceremony  of  marriage ;  and  the  case  of  Zindo  v. 
Belisario  (1  Hagg.  Cons.  Kep.  216)  is  so  far  from  being  an  author- 
ity that  a  mere  contract  was  a  good  marriage,  that  the  marriage 
was  held  void  precisely  because  part  of  the  religious  ceremony 
held  necessary  by  the  Jewish  law  was  found  to  have  been  omitted. 

I  proceed  now  to  refer  to  certain  statutes  passed  by  the  Legisla- 
ture at  differQnt  times ;  from  various  enactments  and  expressions 
in  which  statutes  the  inference  appears  to  follow,  that  a  mere 
contract  per  verba  de  prcssenti  could  not  at  those  several  times 
have  been  generally  held  to  constitute  complete  marriage. 

[The  statutes  referred  to  are  32  Hen.  VIIL,  c.  38;  2  &  3  Edw. 
VL,  c.  23;  12  Chas.  IL,  a  33;  7  &  8  Will.  III.,  c.  35;  10  Anne, 
c.  19,  s.  179.  The  Act  of  1753  (Lord  Hardwicke's  Act)  was 
also  referred  to  as  drawing  that  the  contract  per  verba  de  prcesenti 
was  not  considered  by  the  Legislature  to  have  constituted  ipsum 

matrimonium,  ] 
[678]  I  proceed,  in  the  last  place,  to  endeavour  to  show  that 
the  law  by  which  the  Spiritual  Courts  of  this  kingdom 
have  from  the  earliest  time  been  governed  and  regulated  is  not  the 
general  canon  law  of  Europe,  imported  as  a  body  of  law  into  this 
kingdom,  and  governing  those  Courts  propria  vigore,  but,  instead 
thereof,  an  ecclesiastical  law,  of  which  the  general  canon  law  is 
no  doubt  the  basis,  but  which  has  been  modified  and  altered  from 
time  to  time  by  the  ecclesisatical  constitutions  of  our  archbishops 
and  bishops,  and  by  the  Legislature  of  the  realm,  and  which  has 
been  known  from  early  times  by  the  distinguishing  title  of  the 
King's  Ecclesiastical  Law.  And  if  it  shall  appear,  upon  reference 
to  this  law,  that  there  is  no  incontrovertible  authority  to  be  found 
therein,  that  marriage  was  held  to  be  complete  before  actual 
celebration  by  a  priest,  the  absence  of  such  direct  authority  in  the 
afl&rmative  is  sufficient  to  justify  us  in  drawing  the  conclusion 
already  formed,  that  the  contract  alone  is  not  by  the  law  of 
England  the  actual  marriage.  The  result,  however,  of  a  some- 
what hasty  consideration  of  the  authorities  upon  this 
[*  679]  *  question  (for  the  due  research  into  which  we  were  anxious 
to  have  obtained  a  longer  time)  appears  to  us  to  be,  that 
no  such  rule  obtained  in  the  Spiritual  Courts  in  this  kingdom. 

It  would  scarcely  have  been  necessary  to  have  entered  upon  this 
part  of  the  discussion,  had  it  not  been  for  the  observations  made 


B.  C.  VOL  XVn.]  MARBIAGK  83 

Vo.  8.  —Bag.  ▼.  XiUU,  10  a  &.  Fin.  679,  680. 

hy  Sir  William  Scott,  in  the  case  of  Dalrymple  v.  DalrympU 
(p.  11,  ante).     That  very  learned  Judge,  after  laying  down  in  his 
deservedly  celebrated  judgment  in  that  case,  that  marriage  is  a 
<5ontract  of  natural  law  and  of  civil  law  also,  proceeds  to  observe, 
that  when  the  natural  and  civil  contract  was  formed,  the  law  of 
the    church,  the  canon  law,  considered  it  had  the  full  essence  of 
Patrimony  without  the  intervention  of  the  priest;  "  which  canon 
^^  is  then  stated  by  that  eminent  Judge  to  be  "  the  known  basis 
^*  the  matrimonial  law  of  Europe.  "     The  observation  upon  which 
J^  ^uch  reliance  has  been  placed  by  the  counsel  for  the  Crown 
^^^  follows,    "  that  the   same   doctrine    is  recognised    by   the 
^"^poral  Courts  as  the  existing  rule  of  the  matrimonial  law  of 
^    '^^  country,"  although  certainly  the  observation  is  in  some  degree 
L^v^^ified  by  the  expression,  "  that  the  common  law  had  scruples 
applying  the  civil  rights  of  dower  and  community  of  goods, 
V^^  legitimacy,  in  the  cases  of  these  looser  species  of  marriage. " 
In  the  opinion  we  have  given,  that  we  do  not  conceive  it  to  be 
part  of  the  law  of  the  Temporal  Courts  that  "  when  the  natural 
and  civil  contract  was  formed,  it  had  the  full  essence  of  matri- 
mony without  the  intervention  of  the  priest, "  it  is  only  proper  to 
state,  in  the  first  place,  that  the  entertaining,  as  we  do,  a  different 
view  of  this  subject  from  that  eminent  Judge,  does  not  in 
•    any  *  maimer  whatever  break   in  upon   the  authority  of  [*  680] 
the  decision  in  the  case  of  Dalrymple  v.  Dalrymple, 

The  doctrine  of  the  Temporal  Courts  in  England  had  no  bearing 
at  all  upon  a  question  which  was  to  be  decided  solely  by  the  law 
of  Scotland;  which  country,  it  is  well  known,  differs  materially 
from  ours  in  many  of  its  legal  institutions,  and  in  none  more 
pointedly  than  those  which  relate  to  marriage  and  legitimacy. 
The  opinion  of  that  eminent  person,  so  far  as  regards  England, 
was  uncalled  for  and  extrajudicial;  and  upon  that  ground  the 
question  before  us  must  be  considered  as  unfettered  by  the  weight 
of  such  great  authority,  and  open  to  the  most  free  discussion. 

But  that  the  canon  law  of  Europe  does  not,  and  never  did,  as 
a  body  of  laws,  form  part  of  the  law  of  England,  has  been  long 
settled  and  established  law.  Lord  Hale  defines  the  extent  to 
which  it  is  limited  very  accurately.  "  The  rule, "  he  says,  "  by 
which  they  proceed  is  the  canon  law,  but  not  in  its  full  latitude, 
and  ouly  so  far  as  it  stands  uncorrected  either  by  contrary  Acts  of 
Parliament  or  the  common  law  and  custom  of  England ;  for  there 


84  HABRIA6E. 


Vo.  8.— Bag.  ▼.  ICillis,  10  a  &  Fin.  680-682. 


are  divers  canons  made  in  ancient  times,  and  decretals  of  the 
popes,  that  never  were  admitted  here  in  England. '  Hale's  Hist 
of  Comm.  Law,  c  2. 

Indeed  the  authorities  are  so  numerous,  and  at  the  same  time 

so  express,  that  it  is  not  by  the  Eoman  canon  law  that 
[*  681]  our  Judges  in  the  Spiritual  Courts  *  decide  questions  within 

their  jurisdiction,  but  by  the  King's  ecclesiastical  law, 
that  it  is  sufficient  to  refer  to  two  as  an  example  of  the  rest.  In 
Caudrey's  Case,  5  Co,  Eep.  1,  which  is  entitled  "  Of  the  King's 
Ecclesiastical  Law,"  in  reporting  the  third  resolution  of  the 
Judges,  Lord  Coke  says,  "  As  in  temporal  causes  the  King,  by 
the  mouth  of  the  Judges  in  his  Courts  of  justice,  doth  judge  and 
determine  the  same  by  the  temporal  laws  of  England,  so  in  cases 
ecclesiastical  and  spiritual,  as,  namely  "  (amongst  others  enumer- 
ated), "  rights  of  matrimony,  the  same  are  to  be  determined  and 
decided  by  ecclesiastical  Judges  according  to  the  King's  ecclesi- 
astical law  of  this  realm ; '  and  a  little  further  he  adds,  "  So, 
albeit  the  Kings  of  England  derived  their  ecclesiastical  laws  from 
others,  yet  so  many  as  were  proved,  approved,  and  allowed  here, 
by  and  with  a  general  consent,  are  aptly  and  rightly  called  'The 
King's  Ecclesiastical  Laws  of  England. '  "  In  the  next  place,  Sir 
John  Davies,  in  "  Ze  Case  de  Commeiidams, '  shows  how  the  canon 
law  was  first  introduced  into  England,  and  fixes  the  time  of  such 
introduction  about  the  year  1290,  and  lays  it  down  thus :  "  Those 
canons  which  were  received,  allowed,  and  used  in  England,  were 
made  by  such  allowance  and  usage  part  of  the  King's  ecclesiasti- 
cal laws  of  England ;  whereby  the  interpretation,  dispensation,  or 
execution  of  those  canons,  having  become  laws  of  England,  belong 
solely  to  the  King  of  England  and  his  magistrates  within  his 
dominions : "  and  he  adds,  "  Yet  all  the  ecclesiastical  laws  of 
England  were  not  derived  and  adopted  from  the  Court  of  Eome ; 

for  long  before  the  canon  law  was  authorised  and  pub- 
[*  682]  lished  "  (which  *  was  after  the  Norman  Conquest,  as  before 

shown),  "  the  ancient  Kings  of  England,  viz. ,  Edgar, 
Athelstan,  Alfred,  Edward  the  Confessor,  and  others,  did,  with 
the  advice  of  their  clergy  within  the  realm,  make  divers  ordi- 
nances for  the  government  of  the  Church  of  England;  and  after 
the  Conquest  divers  provincial  synods  were  held,  and  many  consti- 
tutions were  made  in  both  the  kingdoms  of  England  and  Ireland  ; 
all  which  are  part  of  our  ecclesiastical  laws  of  this  day. " 


B.  C.  VOL.  xvil]  makriage.  85 

Ho.  8.  —Beg.  ▼.  XiUis,  10  Q.  &.  Fin.  682,  688. 

We  therefore  can  see  no  possible  ground  of  objection  to  the 
inquiry,  whether  before  the  introduction  of  the  canon  law  any 
law  existed  upon  the  subject  of  marriage  differing  from  that  of  the 
canon  law,  and  not  afterwards  superseded  thereby ;  and  when  we 
find,  in  the  collection  of  ancient  laws  and  institutes  of  England 
published  by  the  Commissioners  of  Public  Eecords,  amongst  the 
laws  of  Edmund,  one  which  directs  that  at  the  nuptials  there 
shall  be  a  mass-priest  by  law,  who  shall,  "  with  God's  blessing, 
bind  the  union  to  all  prosperity, "  we  can  see  no  more  ground  to 
doubt  the  existence  of  this  law  (which  does  not  now  make  its 
appearance  for  the  first  time,  but  was  published  by  Wilkin  (see 
Wilkins'  Concilia,  367)  in  the  last  century)  than  any  other  docu- 
ment of  antiquity  which  has  been  received  as  genuine  without 
hesitation. 

The  council  held  at  Winchester  in  the  time  of  Archbishop 
Lanfranc,  in  the  year  1076  (Johnst  Ecc.  Law,  A.  D.  1076,  s.  5), 
contains  a  direct  and  express  authority  with  a  nullifying  clause, 
that  a  marriage  without  the  benediction  of  the  priest  should  not 
be  a  legitimate  marriage,  and  that  other  marriages  should  be 
deemed  fornication.  Numerous  councils  follow,  in  which 
are  decrees  to  prevent  and  *  punish  clandestine  marriages,  [*  683] 
but  in  no  one  of  which  is  there  any  repeal,  express  or 
implied,  of  the  rule  laid  down  by  the  first ;  viz. ,  that  the  presence 
of  the  priest  is  necessary  to  constitute  a  legitimate  marriage ;  but 
the  time  of  the  marriage  by  the  priest,  the  place  where  it  is  to  be 
celebrated,  and  other  regulations,  are  prescribed,  in  order  to  meet 
the  evil  which  was  then  existing.  That  the  marriage,  though 
called  clandestine,  was  still  a  marriage  celebrated  by  a  priest,  and 
80  assumed  to  be,  is  placed  beyond  all  doubt  by  the  11th  Con- 
stitution of  Archbishop  Stratford,  established  by  the  Council  of 
London  (Johnst  Ecc.  Law,  A.  D.  1343,  s.  11 ;  2  Wilkins'  Con- 
cilia, 706) :  "  De  celebrantibus  matrimonia  clandestina  in  ecclesiis 
oratoriis  vel  capellis. "  That  Constitution  recites  in  effect,  that 
people  left  their  own  places  of  residence,  where  the  impediments 
to  their  marriage  were  notorious  and  their  parish  priests  not  dis- 
posed to  solemnise  their  marriage,  and  betook  themselves  to 
populous  places  where  they  were  unknown,  in  order  that  "  ali- 
quoties  in  ecclesiis  aliquando  in  capellis  seu  oratoriis  matrimonia 
inter  ipsos  de  facto  solemnizari  procurent "  What  is  this  but  a 
plain  assumption  that  the  marriage  so  celebrated,  was  celebrated 


86  MARRIAGE. 


No.  8.  —  Beg.  y.  Mfflis,  10  CI.  &  Fin.  688-686. 


by  a  priest  ?  for  surely  none  others  but  persons  in  holy  orders 
could  celebrate  them  in  churches,  chapels,  or  oratories. 

The  authority  of  John  De  Burgo,  a  dignitary  of  the  Church  of 
England,  was  much  relied  on,  as  a  direct  proof  that  a  contract  per 
verba  de  prcesenti  was  sufficient  to  constitute  complete  matrimony, 
without  the  presence  or  intervention  of  a  priest  The  materials 
of  his  work,  bearing  the  quaint  title  of  "Pupilla  Oculi,"  were 

compiled  in  1385,  and  the  work  itself  printed  at  Paris; 
[*  684]  but  afterwards,  in  the  year  1400,  *  an  edition  was  printed 

in  London,  "  Omnibus  presbyteris  precipue  Anglicanis 
summe  necessaria. "  The  work  contains,  amongst  other  things,  a 
treatise  on  the  Administration  of  the  Seven  Sacraments;  and 
under  the  head  "  De  sacramento  matrimoniali  "  occurs  the  passage 
relied  on  by  the  Crown.  The  author  lays  it  down,  "  Of  the  min- 
ister of  this  sacrament  it  is  to  be  observed,  that  no  other  minister 
is  to  be  required  distinct  from  the  parties  contracting ;  for  they 
themselves  for  the  most  part  minister  this  sacrament  to  them- 
selves, either  the  one  to  the  other,  or  each  to  themselves. "  And 
a  little  further  he  adds,  "  Scotus  says,  that  to  the  conferring  of 
this  sacrament  there  is  not  required  the  ministry  of  a  priest,  and 
that  the  sacerdotal  benediction  which  the  priest  is  wont  to  make 
or  utter  upon  married  people,  or  other  prayers  uttered  by  him,  are 
not  the  form  of  the  sacrament  nor  of  its  essence,  but  something 
sacramental  pertaining  to  the  adorning  of  the  sacrament  "  From 
this  passage  it  is  clear  that,  whether  absolutely  necessary  or  not, 
it  was  at  least  usual  and  customary  at  that  time  to  make  the  con- 
tract before  the  priest.  It  appears  further,  from  the  first  words 
of  the  following  chapter,  "  De  matrimonio  clandestine,"  that  such 
course  was  ordered  by  the  church :  "  Inhibitum  est  contrahere 
nuptias  occulte,  sed  publice,  coram  sacerdote,  sunt  nuptiae  in 
Domino  contrahendse. "  If,  therefore,  in  the  passage  above  cited, 
the  author  intends  to  express  thus  much  only,  and  no  more,  viz. , 
that  by  the  contract  per  verba  de  prcesenti,  made  privately  between 
themselves,  that  mysterious  sacrament  of  which  he  is  speaking  has 
been  taken  by  them  which  makes  the  contract  indissoluble  and 
capable   of  being  enforced  by  either  against  the  other  in  facie 

ecclesice,  such  doctrine  is  admitted  to  be  consistent  with 
[*  685]  the  *  ecclesiastical  law  received  in  England ;  but  if  it  is 

supposed  to  mean  more,  if  it  is  held  up  as  an  authority 
that  the  marriage  is  complete  for  all  civil  purposes  of  legitimacy. 


B.  a  VOL.  xvil]  marriage.  87 

Ho.  8.  —  Bag.  ▼.  Mlllifl,  10  Gl.  &.  Fin.  686,  686. 

dower,  and   other  civil  rights,    then,    before  we  accede   to  the 
proposition,  it  is  the  safer  course  to  discover,  if  possible,  whether 
the    doctrine  of   the   text  writer  is  or  is  not  consistent  with  the 
recognised  laws  and  constitutions  of  the  Church  of  England  then 
in  force,  and  with  the  course  and  practice  of  Ecclesiastical  Courts 
of  England  at  that  time;  and  in  case  of  a  discrepancy  between 
Aem,  to  reject  the  authority  of  the  text  writer,  and  to  adhere  to 
that   of  the  recognised  law  and   the  practice  of  the  Courts;  for 
^here  is  no  surer  evidence  of  the  law  in  any  particular  case  than 
I'he  course  and  practice  of  the  Courts  in  which  such  law  is  admin- 
jf^^red.      We  should    treat   the  best  of   our  text  writers,    Sir 
illiam  Blackstone,  for  example,  precisely  in  the  same  way. 
^ow,  at  the  time  of  the  publication  of  John  de  Burgo,  and  of 
\3dl^  other  work,  entitled  "  Manipulus  Curatorum, "  cited  for  the 
same  purpose,  there  stood,  unrepealed  by  any  subsequent  constitu- 
tion of  the  church,  both  the  constitution  of  Lanfranc,  before  stated, 
and  the  subsequent  constitutions  of  the  church  against  clandestine 
marriages :  the  former  directly  declaring  the  presence  of  the  priest 
at  the  marriage  to  be  necessary  to  give  it  validity ;  the  latter 
implying  such  necessity.     I  ask  whether  the   Courts  of  Eccle- 
siastical Law  of  England  would  take  the  law,  if  the  very  point 
in  controversy  was  brought  before  them,  from  the  text  writers  of 
the  day,  or  from  the  constitutions  of  the  church?    I  doubt  not, 
however  learned  or  in  whatever  estimation  the  text  writers  might 
be,  it  would  be  from  the  law  of  the  church ;  and  as  to  the 
course  *  and  practice  of  the  Courts  of  Ecclesiastical  Law  [*  686] 
in  respect  to*  a  matrimonial  suit  to  enforce  marriage  upon 
a  contract  per  verba  de  prcesenti,  the  prayer  upon   the  libel   has 
been  not  to  pronounce  that  the  parties  are  already  actually  and 
completely  married,  but  that  it  may  be  pronounced  "  for  the  valid- 
ity, full  force,  and  strength  of  the  said  contract  of  marriage,  to 
all  effects  and  intents  in  law  whatsoever ;  and  that  the  defendant 
may  be  compelled  to  solemnise  the  said  marriage  in  the  face  of 
the  church  "   (Clerk's  Instructor,  326) :  just  as  in  Bunting's  Case, 
before  cited,  the  decree  was  not  that  Agnes  was  married,  but  that 
Agnes  *  matrimonium  subiret. " 

And  when  reference  is  made  to  Oughton  (vol.  i.  283),  the 
same  appears  more  distinctly  to  be  the  form  of  proceedings ;  and 
it  would  be  most  singular,  if  the  contract  per  verba  de  prcesenti 
was  considered   by  the  Court  as  an  actual  complete  marriage. 


88  MARBIAGE. 


Ho.  8.  — Beg.  ▼.  XiUis,  10  a  &  Fin.  686,  687. 


that  a  provision  should  be  made  for  the  Court  to  inhibit  the 
party,  **  pendente  lite,  from  contracting  matrimony,  or  procuring 
matrimony  to  be  solemnised. "  If  the  Court  held  the  first  mar- 
riage to  be  entii-ely  complete,  surely  the  statute  of  James,  which 
had  then  been  passed  more  than  a  century,  and  which  made  the 
second  solemnisation  a  felony,  would  have  been  a  surer  protection 
than  the  inhibition  of  the  Court  But  the  necessary  inference  is, 
that  the  Court  could  not  have  so  held  the  effect  of  the  contract ; 
and  it  follows,  therefore,  that  the  authority  of  the  passages  above 
cited  cannot  be  safely  relied  on,  against  the  Constitutions  of  the 
church  and  the  practice  of  the  Spiritual  Court. 

We  now  pass  to  the  consideration  of  the  particular  cir- 
[*  687]  cumstances  involved  in  the  first  question  proposed  *  by 
your  Lordships,  which  supposes  this  marriage  to  have 
taken  place  in  the  house  and  in  the  presence  of  a  placed  and 
regular  minister  of  the  congregation  of  Protestant  dissenters  called 
Presbyteriana 

As  we  have  already  stated  our  opinion,  that  to  make  the  mar- 
riage a  complete  marriage,  it  must  be  solemnised  in  the  presence 
of  a  minister  in  holy  orders,  it  is  only  necessary  to  look  back  to 
the  time  when  that  law  first  obtained  in  England  to  enable  us  to 
answer  that  question  without  difiiculty. 

At  the  early  period  when  such  law  arose,  and  down  to  a  com- 
paratively recent  period,  the  expression  priest,  curate,  minister, 
deacon,  and  person  in  holy  orders,  which  are  the  words  met  with 
in  the  different  constitutions  and  councils  and  authorities  bearing 
on  the  subject,  could  point  to  those  persons  only  who  had  received 
episcopal  ordination ;  there  were  no  others  known  at  all ;  all  but 
they  were  laymen :  and  unless  some  Act  of  the  Legislature  has 
interposed  its  authority,  and  given  the  Protestant  dissenting 
minister  in  Ireland  the  same  power  for  this  purpose  as  the  persons 
in  holy  orders  did  before  possess,  we  think  the  entering  into  the 
contract  in  his  presence  cannot,  in  the  legal  sense  of  the  word,  be 
held  to  be  entering  into  it  in  the  presence  of  a  person  **  in  holy 
orders."  Now  no  statute  has  been  brought  forward,  except  the 
21st  &  22nd  Geo.  III. ,  c.  25  (Irish) ;  but  the  operation  of  that 
statute  is  limited  to  matrimonial  contracts  or  marriages  between 
Protestant  dissenters,  and  solemnised  by  Protestant  dissenting 
ministers  or  teachers;  and  as  your  Lordships'  question  goes  on  to 
state   that  one   of  the  contracting  parties  in  this  case  is  not  a 


B.  C.  VOL.  XVn.]  MARBIAGB.  89 

No.  8.— Beg.  Y.  M31UII,  10  CL  &  Fin.  687-688. 

Protestant  dissenter,  but  a  member  of  the  Established  Church  of 
England  and  Ireland,  it  follows  that  the  case  does  not  fall 
within  that  statute,  and  *  that  it  must  be  decided  as  if  [*  688] 
that  statute  had  never  been  passed. 

The  two  subsequent  conditions  or  circumstances  contained  in 
yoiur  Lordships'  question  can  obviously  make  no  difference.  The 
form  of  the  religious  ceremony  cannot,  upon  any  principle  or  upon 
any  authority,  compensate  for  the  want  of  the  presence  of  the 
proper  minister,  assuming  such  presence  to  be  necessary ;  nor  can 
the  circumstance  of  subsequent  cohabitation  carry  the  validity  of 
the  marriage  higher  than  the  original  force  of  its  obligation. 

The  main  and  principal  point,  however,  of  your  Lordships' 
first  question  still  remains  to  be  answered;  viz.,  whether,  after 
such  a  c-ontract  entered  into  between  A.  and  B. ,  whether  A. ,  by 
marrying  C.  in  England  whilst  B.  is  still  living,  commits  the 
crime  of  bigamy  ? 

And  after  the  full  discussion  of  the  general  question,  and  our 
opinion  already  declared,  that  the  first  contract  does  not  amount 
to  a  marriage  by  the  common  law,  it  is  hardly  necessary  to  say 
that  we  hold  the  offence  of  bigamy  has  not  been  committed 
Indeed,  independently  altogether  of  the  answer  we  have  given  to 
that  abstract  question,  and  admitting,  for  the  sake  of  argument, 
that  the  law  had  held  a  contract  per  verba  de  prcesenti  to  be  a 
marriage,  yet,  looking  to  the  statute  upon  which  this  indictment 
is  framed,  we  should  have  thought,  upon  the  just  interpretation 
of  the  words  of  that  statute,  the  offence  of  bigamy  could  not  be 
made  out  by  evidence  of  such  a  marriage  as  this.  The  words  are, 
*If  any  person,  being  married,  shall  marry  any  other  person 
during  the  life  of  the  first  husband  or  wife;*  words  which  are 
almost  the  very  same  as  those  in  the  original  statute  of  James  I. 
Now  the  words  **  being  married, "  in  the  first  clause, 
*  and  the  words  "  marry  any  other  person, "  in  the  second,  [*  689] 
must  of  necessity  point  at  and  denote  marriage  of  the 
same  kind  and .  obligation.  If,  therefore,  a  marriage  per  verba 
de  prcesenti,  without  any  ceremony,  is  good  for  the  first  marriage, 
it  is  good  also  for  the  second;  but  it  never  could  be  supposed 
that  the  Legislature  intended  to  visit  with  capital  punishment 
(for  the  offence  would  be  capital  if  the  plea  of  clergy  could  be 
counter-pleaded)  the  man  who  had  in  each  instance  entered  into 
a  contract  per  verba  de  prcesenti,  and  nothing  more.     Waiving, 


90  MARRIAGE. 


Ho.  2.  —Beg.  y.  milii,  10  a  &  Fin.  689-746. 


however,  that  consideration,  it  is  enough  to  state  to  your  Lord- 
ships, as  the  answer  to  the  first  question,  that  in  our  opinion  A. 
did  not,  under  the  circumstances  therein  stated,  commit  the  crime 
of  bigamy. 

My  Lords,  we  have  so  fully  and  pointedly  answered  the  second 
question  proposed  by  your  Lordships,  in  stating  the  grounds  of 
our  first  answer,  that  it  is  unnecessary  to  trouble  you  with  any 
further  observation  thereon  except  that  as  the  statute  of  58  Geo. 
III.,  c.  81,  has  enacted  that  no  suit  shall  be  had  to  compel  the 
celebration  of  such  a  contract  in  any  Ecclesiastical  Court  in  Ire- 
land, we  think  this  question  also  should  be  answered  in  the 
negative. 

In  conclusion,  I  would  only  observe,  that,  although  I  am 
authorised  to  state  that  our  opinion  on  the  questions  proposed  to 
us  is  unanimous,  yet  I  ought  to  add  that  my  learned  brethren  are 
not  to  be  held  responsible  for  the  reasoning  upon  which  I  have 
endeavoured  to  establish  the  validity  of  that  opinion. 

Lord  Brougham,  in  rising  to  move  that  the  opinions  of  the 
learned    Judges    be    printed,    proceeded     (more    suo)    to    make 

observations :  — 
[*  694]  *  The  Lord  Chancellor.  —  Will  my  noble  and  learned 
friend  allow  me  to  suggest,  whether  the  prudent  course 
would  not  be,  that  we  should  for  the  present  abstain  from  making 
any  observation  upon  the  case,  and  consider  what  course  we 
should  take?  [After  some  further  observations  by  the  learned 
Lord  (Brougham),  the  Lord  Chancellor  moved  that  the  further 
consideration  of  the  case  should  be  adjourned,  and  this  was  dona 

On  the  final  consideration  the  Lords  present.  Lord  Brougham, 
Lord  Abinger,  Lord  Campbell,  Lord  Denman,  the  Lord  Chan- 
cellor (Lord  Lyndhurst),  and  Lord  Cottenham,  gave  their 
reasoned  opinion  seriatim.  The  opinions  of  Lord  Brougham, 
Lord  Campbell,  and  Lord  Denman  were  in  favour  of  the  Crown 
(the  plaintiff  in  error).  Those  of  Lord  Abinger,  the  Lord 
Chancellor,  and  Lord  Cottenham  were  in  favour  of  the  defendant 
in  error.  To  print  the  whole  of  these  opinions,  would  render  the 
report  too  long  for  the  present  work.  In  order  to  present  the 
principal  arguments  on  either  side,  it  will  suffice  to  set  forth 
the  opinions  of  Lord  Campbell  and  the  Lord  Chancellor.] 
[746]  Lord  Campbell.  —  After  the  most  anxious  considera- 
tion of  the  opinion  delivered  by  the   learned  Judges   in 


B.  C.  VOL.  XVII.]  MARRIAGE-  91 

No.  8.  —Beg.  Y.  Mfflif,  10  GL  &  Fin.  746-748. 

this  case,  I  am  unable  to  concur  in  it,  and  I  cannot  advise  your 
Lordships  to  act  upon  it  I  need  not  express  my  high  respect  for 
the  individuals  now  administering  justice  in  the  Courts  of  com- 
mon law  in  Westminster  Hall,  or  the  reverence  with  which  I 
must  regard  whatever  is  laid  down  by  Lord  Chief  Justice 
•  TiXDAL ;  a  Judge  who,  for  learning  and  ability,  is  not  [*  747] 
inferior  to  the  most  distinguished  of  his  predecessors. 

I  certainly  much  regret  that,  upon  a  subject  of  such  infinite 
importance  and   such   great   diflSculty,    the  time   had   not  been 
allowed  to  the  Judges  which  they  themselves   stated   they  con- 
sidered necessary  for  duly  examining  and  weighing  the  conflicting 
authorities  and  arguments  brought   forward  at  your  Lordships' 
l>ar.      "When  you  avail  yourselves  of  your  privilege  of  consulting 
the  Judges  on  any  question  of  law  which  you  have  to  consider, 
you  generally  have  the  advantage  of  knowing  the  reasons  by  which 
they  are  swayed ;  for  they  either  deliver  their  opinions  seriatim, 
^ch  expressing  his  own  reasons ;  or  the  Judge  highest  in  rank, 
^ao  delivers  their  unanimous  opinion,  expresses  reasons  in  which 
ftiey  have  all  concurred.     On  this  occasion  the  reasons  are  the 
^^ons  of  the  Chief  Justice  alone,  and  we  are  left  entirely  in 
the  dark  as  to  the   process  by  which  the  others  arrived  at  the 
conclusion   that  the  first  marriage  entered  into  by  the  prisoner 
with  Hester  Graham,    before  a  Presbyterian  minister,  —  which 
both  parties  intended  and  believed  to  be  a  present  valid  marriage, 
and  under  which  they  cohabited  together  for  years  as  man  and 
wife,  without  any  doubt  as  to  its  validity,  —  was  null  and  void. 
In  the  Courts  below,  upon  questions  of  great  magnitude,  it  has 
not  been  unusual  for  the  different  Judges  of  the  Court  to  give 
their  opinions  with  their  reasons  separately,  even   when  they 
agree  in  the  judgment;  of  which  we  have  a  memorable  instance 
in  the  case  of  Stockdale  v.  Hansard,  9  Ad.   &  E.   1 ;  and  I  think 
your  Lordships  will  not  have  the  full  benefit  of  consulting  the 
Judges  unless  they  deliver  their  opinions  separately,  or 
are  imderstood   *  to  concur  in  the  reasons   assigned  by  [*  748] 
the  Judge  who  delivers  their  unanimous  opinion.     It  is 
possible  that  for  the  same  opinion  contradictory  reasons  might  be 
given,  and  that  the  weight  to  be  ascribed  to   it  may  be   much 
lessened  by  those  who  join  in  it  combating  and  overthrowing  the 
arguments  of  each  other.     In  the  present  case  we  have  particularly 
to  lament  that  we  are  informed  of  the  reasoning  only  of  one  Judge, 


92  MARRIAGE. 


No.  2.  —  Beg.  Y.  Ifillif,  10  a  &  Tin.  748,  749. 


as  he  states  that  "  it  was  only  after  considerable  fluctuation  and 
doubt  in  the  minds  of  some  of  his  brethren  that  they  had  acceded 
to  the  opinion  which  was  formed  by  the  majority."  I  should 
have  been  much  gratified  and  edified  by  being  informed  of  the 
course  of  this  fluctuation ;  what  the  doubts  were  which  weighed 
in  the  minds  of  those  learned  persons,  and  by  what  train  of 
reasoning  those  doubts  were  dispelled. 

Now  it  is  most  essential  that  your  Lordships  should  bear  in 
mind  the  facts  found  by  the  special  verdict  If  Geoige  Millis 
had  merely  entered  into  a  contract  per  verba  de  prcesenti  to  marry 
Hester  Graham,  the  parties  not  considering  the  engagement  a 
present  marriage,  and  intending  that  before  they  lived  together  as 
man  and  wife  it  should  be  solemnised  by  a  subsequent  ceremony, 
I  should  have  agreed  with  the  Judges  that  the  man  would  not 
have  committed  bigamy  by  afterwards  marrying  another  woman. 
Betrothment  is  not  matrimony.  Were  a  priest  in  orders  acci- 
dentally present  at  such  a  betrothment,  and  the  parties,  instead  of 
intimating  before  him  that  they  intended  to  be  then  married, 
expressed  their  intention  that  it  was  only  an  absolute  engagement 
that  they  should  afterwards  become  man  and  wife ;  by  whatsoever 
form  of  words  that  engagement  might  be  expressed,  this  would 

not  have  been  ipsum  matrimonium.      But  the  jurors,  by 
[*  749]  the  special  verdict,  say,  "  that  in  January,  1829,  *  George 

Millis,  accompanied  by  Hester  Graham,  spinster,  and 
three  other  persons,  went  to  the  house  of  the  Eev.  John  John- 
stone, of  Banbridge,  in  the  county  of  Down,  the  said  Eev.  John 
Johnstone  then  and  there  being  the  placed  and  regular  minister 
of  the  congregation  of  Protestant  dissenters  commonly  called 
Presbyterians ;  and  that  the  said  G.  Millis  and  H.  Graham  then 
and  there  entered  into  a  contract  of  present  marriage,  in  the 
presence  of  the  said  Eev.  John  Johnstone  and  the  said  other 
persons,  and  the  said  Eev.  John  Johnstone  then  and  there  per- 
formed a  religious  ceremony  of  marriage  between  the  said  G. 
Millis  and  H.  Graham,  according  to  the  usual  form  of  the  Presby- 
terian Church  in  Ireland;  and  that  after  the  said  contract  and 
ceremony  the  prisoner  and  the  said  Hester  for  two  years  cohabited 
and  lived  together  as  man  and  wife,  the  said  Hester  being  after 
the  said  ceremony  known  by  the  name  of  Millis. "  Now  this  was 
not  a  mere  betrothment ;  this  was  not  a  mere  executory  contract 
per  verba  de  prcesenti  for  a  marriage  thereafter  to  be  solemnised ; 


B.  C.  VOL  XVU.]  MARRIAGE.  93 

No.  8.  —  Beg.  y.  MUlii,  10  CI.  &  Fin.  749,  760. 

this  was,  as  it  was  meant  to  be,  ipsum  matrimonium.     Here  we 

have  not  only  pactum,  not  merely  spansalia,  but  nupticB  per  verba 

deprassenti.     I  rely  upon  the  distinction  between  a  contract  per 

wrta  de  proBsenti  for  a  marriage  to  be  afterwards  solemnised,  and 

nuptial  per  verba  de  prcesenti  without  any  contemplation  of  a  future 

ceremony  as  necessary  to  complete  the  relation  of  man  and  wife ; 

a  distinction  (I  speak  it  with  the  most  profound  respect)  which  I 

think  the  learned  Judges  have  not  suflSciently  kept  in  view.     The 

Qse  of  the  expression  "  contract  of   marriage  "  is  equivocal,  and 

^^7  mean  the  actual  formation  of  the  relation  of  husband   and 

^ife;   but  it  may  mean   only  an  irrevocable  engagement  to  be 

afterwards  carried  into  effect,  the  parties  not  meaning  then 

to  become  husband  and    *  wife,    and  their    engagement  [•  750] 

therefore,  though  words  in  the  present  tense  are  used,  not 

^tnounting  to  nuptice. 

This  distinction  may  be  illustrated  by  the  decisions  respecting 
leases.    The  general  rule  is,  that  a  contract  to  let  land  per  verba 
^  prossenti  is  ipsa  locatio ;  the  term  is  instantly  created,  and  the 
interest  vests  in  the  lessee  without  the  execution  of  a  formal 
instrument  of  demise ;  but  if  it  appears  to  have  been  the  inten- 
tion of  the  parties  that,  till  a  formal  instrument  of  demise  was 
executed,  the  relation  of  landlord  and  tenant  for  the  stipulated 
term  should  not  be  constituted  between  them,  the  instrument 
containing  words  of  contract  per  verba  de  prcesenti  is  considered 
only  an  executory  agreement,  the  specific  performance  of  which 
may  be  enforced  in  a  Court  of  equity,  and  a  subsequent  lease  to 
another  would  be  good  at  law  till  set  aside  on  the  ground  of  the 
precontract ;  but  where  the  contract  to  let  per  verba  de  prcesenti  is 
intended  by  the  parties  to  operate  immediately,  it  is  ipsa  locatio, 
however  informal  it  may  be,  and  a  subsequent  lease  to  another  is 
merely  void.     In  the  present  case  it  is  clear  that  the  parties  con- 
templated no  further  ceremony  completely  to  constitute  the  con- 
jugal relation  between  them,  and  that  they  at  the  time  of  the 
ceremony  intended  to  become,  and  believed  that  they  had  become, 
husband  and  wife. 

The  only  objection  that  can  be  taken  to  the  validity  of  this 
marriage  is,  that  there  was  not  present  at  it  a  priest  or  deacon 
episcopally  ordained,  or  a  person  believed  by  the  parties  to  be  a 
priest  or  deacon  episcopally  ordained;  and  the  question  arises, 
whether  by  the  common  law  of  England,  which  is  allowed  to  be 


94  MARBIAGE. 


No.  2.  —Beg.  Y.  mUiB,  10  a  &  Fin.  760-708. 


the  common  law  of  Ireland^  there  could  not  be  a  valid  mar- 
[*  751]  riage  without  the  presence  of  a  priest  or  deacon  *  so  or- 
dained, or  believed  by  the  parties  to  be  so  ordained.  The 
condition  contended  for  as  indispensable  to  the  validity  of  mar- 
riage, is  the  presence  of  a  person  believed  by  the  parties  to  be  in 
priest's  or  deacon's  orders.  It  is  not  considered  essential  that  be 
should  pronounce  a  benediction,  or  join  in  any  religious  cere- 
mony; and  though  he  never  was  episcopally  ordained  either  as 
priest  or  deacon,  his  presence  is  sufficient,  if  the  parties  believe 
that  he  is  in  priest's  or  deacon's  orders :  while  a  marriage  cele- 
brated by  a  clergyman  who  is  actually  in  Presbyterian  orders, 
and  who  is  believed  by  the  parties  to  be  entitled  by  the  law  of 
God  and  the  law  of  the  land  to  marry  them  effectually,  is  a  nul- 
lity. Such  is  the  common  law  contended  for  by  the  counsel  for 
the  prisoner;  but  surely  the  onus  lies  on  those  who  maintain  that 
such  is  the  common  law,  to  make  out  their  proposition  by  decided 
cases  and  text  writers  of  authority. 

I  must  be  allowed  to  point  out  to  your  Lordships  the  extreme 
improbability  of  the  common  law  of  England  requiring  the 
presence  of  a  priest  to  the  validity  of  marriage.  I  think  it  is 
quite  clear  that  by  the  general  law  prevailing  in  the  western 
church  prior  to  the  Council  of  Trent,  —  although  a  marriage,  to 
be  regular,  ought  to  have  been  in  facie  ecclesice,  —  for  a  marriage 
to  be  valid,  so  that  the  parties  would  not  be  considered  as  living 
together  in  fornication,  and  their  issue  would  be  legitimate,  the 
presence  of  a  priest  was  quite  unnecessary.  Marriage,  as  a  sacra- 
ment, was  considered  a  matter  of  ecclesiastical  jurisdiction ;  the 
validity  of  marriage  was  decided  in  the  Ecclesiastial  Courts ;  from 
those  Courts  there  was  an  appeal  to  Eome  as  a  common  forum. 
The  proceedings  in  the  divorce  suit  between  Henry  VIII.  and 
Catharine  of  Arragon  afford  the  most  recent  and  the  most 
[•  752]  striking  *  instance  of  the  law  of  marriage  in  England  being 
considered  as  governed  by  the  law  of  marriage  prevailing 
in  other  Christian  countries. 

Now,  that  by  the  general  marriage  law  of  Europe,  before  the 
Eeformation  and  before  the  Council  of  Trent,  there  might  be  a 
valid  marriage  without  the  presence  of  a  priest,  is  clearly  demon- 
strated by  the  canonists  cited  at  the  bar.  I  will  confine  myself  to 
two  authorities  as  quite  sufficient  for  this  purpose.  In  the  work 
of  John  de  Burgh  (a  canonist  of  the  highest  reputation),  entitled 


B.  a  VOL  xyil]  mabbiage.  95 

No.  8.  —Beg.  Y.  Xillis,  10  a  &  Tin.  768,  768. 

"  Papula  Oculi, "  there  is  a  chapter  "  De  sacramento  matrimonii,  * 
in  which  we  find  this  doctrine  expressly  laid  down :  "  De  ministro 
hnjns  sacTamenti  notandum  est  quod  non  requiritur  alius  minister 
distinctus  ab  ipsis  contrahentibus ;  ipsimet  enim  ut  plurimum 
sibi  ipsis  ministrant  hoc  sacramentum,  vel  mutuo  vel  uterque 
sibL  Patet  etiam  quod  ad  coUationem  hujus  sacramenti  non 
requiritur  ministerium  sacerdotis,  et  quod  ilia  benedictio  sacra- 
mentalis,  quanquam  solet  presbyter  facere  sive  perferre  super 
coDJuges,  sive  alise  orationes  ab  ipso  probatse,  non  sunt  forma 
sacramenti,  nee  de  ejus  essentia,  sed  quoddam  sacramentale  ad 
omatum  pertinens  sacramenti. "  He  afterwards  goes  on  to  state 
that  marriage  ought  to  be  solemnised  openly  before  a  priest,  but 
intimates  that  a  clandestine  marriage,  where  no  priest  is  present, 
is  binding  and  valid  in  law.  Fernando  Walter,  now  a  professor 
in  the  University  of  Bonn,  in  his  **  Treatise  on  the  Canon  Law, " 
a  work  highly  esteemed  on  the  continent  of  Europe,  speaking  of 
the  decree  of  the  Council  of  Trent  on  this  subject,  says :  "  The 
provision  is  new  that  both  parties- must  declare  their  intention 
before  their  proper  parochial  minister  and  at  least  two  witnesses : 
this  form  is  declared  so  essential  that  without  it  the  mar- 
riage is  •altogether  void;  but  yet  the  object  is  only  to  [*753] 
secure  a  trustworthy  witness  in  order  to  the  precise  ascer- 
tainment of  the  marriage,  wherefore  the  persons  mentioned  need 
not  have  been  expressly  invited  to  be  present  Nay,  even  the 
opposition  of  the  parochial  minister  does  not  prevent  the  validity 
of  the  marriage,  if  he  has  merely  heard  the  declaration.  He 
goes  on  to  explain  the  difference  between  a  regular  marriage 
before  a  priest  and  a  clandestine  marriage  without  a  priest,  but 
considering  them  equally  effectual ;  he  says,  "  Marriage  is  a  con- 
tract which  ought,  according  to  the  ancient  usage,  to  be  confirmed 
by  the  priestly  benediction ;  and  properly  this  ought  to  be  given 
by  the  proper  parochial  minister,  or  some  one  authorised  by  him 
according  to  the  rules  of  the  church.  Other  ceremonies  are  also 
to  be  observed.  None  of  all  this,  however,  is  essential  to  the 
validity  of  the  marriage. "  The  decree  of  the  Council  of  Trent 
respecting  the  solemnisation  of  marriage,  requires  the  presence  of 
the  parish  priest  or  some  other  priest  specially  appointed  by  him 
or  the  bishop ;  but,  even  under  this  decree,  the  priest  is  present 
merely  as  a  witness ;  it  is  not  necessary  that  he  should  perform 
any  religious  service,  or  in  any  way  join  in  the  solemnity.     This 


96  MARRIAGE. 


No.  2.  —Beg.  y.  IfiUif,  10  a  &  Fin.  768-7M. 


view  of  the  subject  is  illustrated  by  the  case  of  Lord  and  Lady 
Herbert,  3  Phill.  58,  2  Hagg.  Cons.  Eep.  263.  They  were  mar- 
ried in  Sicily,  where  the  decree  of  the  Council  of  Trent  is  received. 
They  got  the  parish  priest  to  attend  at  the  house  of  the  lady,  and 
two  of  her  servants  were  called  up.  In  the  presence  of  these 
witnesses  she  said,  "  I  take  you  for  my  husband ; "  and  he  said,  "  I 
take  you  for  my  wife. "  Nothing  more  passed,  and  this  was  held 
to  be  a  valid  marriage  in  Sicily,  and  therefore  all  the 
[•  754]  world  *  over.  It  thus  appears  quite  certain  that,  accord- 
ing to  the  doctrine  of  the  Eoman  Catholic  Church,  no 
religious  ceremony  was  or  is  necessary  to  the  constitution  of  a 
valid  marriage.  Although  marriage  is  considered  a  sacrament, 
this  sacrament,  like  baptism,  might  be  administered,  under  cer- 
tain circumstances,  without  the  intervention  of  a  priest;  the 
parties  being  liable  to  be  censured  for  the  irregularity  of  dispens- 
ing with  the  conjugal  benediction  and  neglecting  to  make  the 
proper  offering  to  the  church.  There  is  not  a  trace  in  any  eccle- 
siastical writer  of  the  law  of  marriage  in  England  being  different 
from  the  law  of  marriage  in  other  Christian  countries.  I  earnestly 
entreat  your  Lordships  to  bear  in  mind  that  I  by  no  means  say 
every  contract  of  marriage  using  words  de  prcesenti  was  ipsum 
matrimonium ;  on  the  contrary,  in  England,  and  I  believe  in  the 
rest  of  Europe,  an  absolute  engagement  to  become  man  and  wife 
at  a  future  time  did  not  amount  to  present  marriage ;  but  if  the 
parties  had  wished  and  intended  to  enter  into  present  marriage 
without  the  presence  of  a  priest,  they  might  have  done  so,  subject 
to  church  censures  for  irregularly  contracting  the  relation  of  man 
and  wife,  —  not  for  living  together  in  sin ;  —  and  I  will  use  the 
freedom  to  make  an  observation  upon  what  has  fallen  from  my 
noble  and  learned  friend  who  last  addressed  your  Lordships,  who 
would  infer  that  the  parties  who  have  contracted  per  verba  de 
prcesenti  were  not  man  and  wife  till  the  marriage  was  celebrated, 
because  Lord  Holt  says  that  the  parties  might  be  liable  to  censure 
if  they  lived  together  before  the  celebration  of  marriage.  Now,  I 
believe  it  is  not  disputed  that  in  Scotland  there  may  be  a  valid 
marriage  per  verba  de  prcesenti  without  the  intervention  of  a 
priest ;  and  I  can  state  of  my  own  knowledge,  —  being 
[*755]  the  son  ♦of  a  minister  of  the  Church  of  Scotland,  and 
having  myself  been  present  at  such  proceedings,  —  that 
the  parties  who  have  been  living  together  as  man  and  wife  after 


I 


K.  a  VOL.  xvil]  mabkugk  97 

Ho.  8.*- Beg.  y.  Millis,  10  GL  &  Fin.  755,  756. 

an  irr^ular  marriage  are  considered  as  liable  to  church  censure, 
and  are  not  admitted  to  the  communion  of  the  church  imtil  they 
have  been  censured,  and  have  expressed  their  regret  for  not  hav- 
ing complied  with  the  rules  of  the  church ;  but  that  the  marriage 
is  ipsum  matrimoniurn  has  never  been  doubted. 

The  Lord  Chancellor.  —  Suppose  there  is  a  contract  per  verba 
de  prcBsenti,  and  nothing  further,  —  no  cohabitation ;  would  the 
church  under  such  circumstances  interfere  by  its  censures  ? 

lord  Campbell.  —  That  case  has  not  come  within  my  observa- 
tion. The  cases  to  which  I  refer,  and  which  are  not  at  all  unfre- 
quent^  are  those  of  a  runaway  or  what  is  called  a  half-mark 
marriage,  where  the  parties  contract  per  verba  de  prcesenti,  and 
where  they  live  together  as  man  and  wife,  and  are  unquestionably 
man  and  wife,  and  where  the  children  would  be  legitimate  if 
the  parents  died  without  any  further  ceremony ;  that  was  decided 
by  your  Lordships'  House  in  the  case  of  Mac  Adam  v.  Walker, 
1  Dow,  148  (14  R  R  36),  where  the  man  shot  himself  the  instant 
he  declared  that  the  woman  he  had  married  was  his  wife.  In 
those  cases  still  the  church  considers  the  marriage  as  irregular,  and 
summons  the  parties  before  the  kirk  session,  and  rebukes  them 
for  not   having   observed  the  rules   of  the  church.  .  .  . 

But  to  show  that  there  was  a  peculiar  law  in  England  [756] 
on  this  subject,  even  in  the  time  of  the  Anglo-Saxons, 
there  is  cited  to  us  a  supposed  law  of  King  Edmund,  directing 
"  that  at  the  nuptials  there  shall  be  a  mass-priest,  who  shall,  with 
God's  blessing,  bind  their  union  to  all  prosperity."  Setting 
aside  the  grave  doubts  which  have  been  entertained  of  the  genuine- 
ness of  this  document,  does  it  show,  that  while  a  mass-priest  is 
directed  to  be  present  at  nuptials,  nuptials  without  the  presence 
of  a  mass-priest  would  be  void,  and  that  this  ever  after  was  the 
law  of  England  ?  Then  is  a  marriage  void  that  is  celebrated  by  a 
deacon?  for  he  is  not  a  mass- priest,  and  his  presence  would  as 
little  satisfy  the  law  as  that  of  the  verger  or  the  sexton. 

There  were  then  cited  to  us  numerous  decrees  of  provincial 
councils  on  the  subject  of  marriage,  the  great  object  of  which  was 
to  discourage  clandestine  marriages,  and  to  require  that  all  mar- 
riages should  be  celebrated  in  the  face  of  the  church ;  but  there 
is  no  reason  to  suppose  that  the  prelates  who  presided  at  these 
councils^  many  of  whom  were  foreigners,  intended  to  introduce 
any  law  touching  the  essentials  of  marriage  different  from  what 
vol.  XVII.  —  7 


98  MARRIAGE. 


No.  2.  —Beg.  y.  Xillii,  10  a  &.  Fin.  766-76S. 


prevailed  in  the  rest  of  Christendom ;  they  were  only  in  the  nature 
of  bye-laws,  to  be  observed  in  a  particular  diocese  or  province,  to 
prevent  as  much  as  possible  all  clandestine  marriages,  either  with 
or  without  the  intervention  of  a  priest  I  believe  there  is  only 
one  of  these  constitutions,  that  of  Archbishop  Lanfranc 
[*  757]  in  the  year  1076,  *  which  professes  to  nullify  a  clandestine 
marriage  by  declaring  that  a  marriage  without  the  bene- 
diction of  the  priest  should  not  be  a  legitimate  marriage,  and  that 
other  marriages  should  be  deemed  fornication.  But  this  denun- 
ciation goes  further  than  the  law  is  supposed  ever  to  have  gone ; 
for  the  blessing  of  the  priest  was  not  essential  to  the  validity 
of  the  marriage  if  he  was  present,  and  the  denunciation  may 
rather  be  taken  to  be  in  terrorem  than  as  making  or  declaring  the 
law. 

The  different  decrees  against  clandestine  marriages  seem  to  me 
to  have  no  cogency  to  show  that  there  was  in  England  any  pecu- 
liarity respecting  the  law  of  marriage  as  held  by  the  Ecclesiastical 
Courts.  These  decrees,  if  they  were  supposed  to  apply  to  the 
validity  of  the  marriage,  are  contrary  to  the  plainest  propositions 
of  canonists,  both  foreign  and  native,  and  to  the  universal  prac- 
tice of  Christendom.  The  existence  of  such  a  peculiarity  seems 
wholly  inconsistent  with  the  procedure  by  which  that  law  was 
administered.  The  Church  of  Rome,  in  every  country  under  its 
jurisdiction,  was  most  anxious  that  marriages  should  be  publicly 
celebrated  in  the  presence  of  a  priest;  first,  for  the  laudable 
object  of  preventing  imprudent  unions  by  which  the  peace  of 
families  might  be  disturbed;  and,  secondly,  for  the  excusable 
object  of  collecting  fees  from  the  faithful.  It  was  proved  before 
your  Lordships'  Committee  on  the  Law  of  Marriage  in  Ireland, 
that  a  principal  part  of  the  emoluments  of  the  Eoman  Catholic 
clergy  in  Ireland  now  arises  from  fees  on  marriages,  and  that  for 
this  reason  they  are  celebrated  at  the  times,  in  the  places,  and 
under  the  circumstances  when  it  may  be  expected  that  the  contri- 
butions will  be  most  bountiful.  But  till  the  Council  of 
[*758]  Trent,  when  marriages  were  absolutely  required  to  *be 
before  the  parish  priest,  or  some  other  person  duly  author- 
ised by  the  bishop  or  the  parish  priest  to  officiate,  —  and  all  other 
marriages  were  declared  to  be  null,  —  the  doctrine  of  the  Church 
of  Rome  certainly  was  that  there  might  be  a  valid  marriage  with- 
out the  intervention  of  a  priest ;  and  if  that  was  so,  it  was  hardly 


B.  a  YOL.  xvil]  marriage.  99 

No.  8.  — Beg.  y.  MiUis,  10  a  &  Fin.  758,  769. 

possible  that  any  different  law  should  prevail  in  any  State  subject 
to  her  jurisdiction. 

In  England  the  common-law  Judges  professed,  with  respect  to 
marriage,  to  be  governed  by  the  Ecclesiastical  Courts;  those  Courts 
alone  took  direct  cogniscmce  of  the  validity  of  marriage;  and 
when  the  question  arose  incidentally  before  the  common-law 
Judges,  they  referred  themselves  to  the  bishop  as  the  ecclesiasti- 
cal Judge,  and  were  governed  by  the  certificate  which  he  returned 
Upon  some  occasions  the  validity  of  marriage  arose  as  a  question 
before  the  common-law  Judges  when  they  could  not  consult  the 
bishopt  On  such  occasions  they  would  have  regard  to  the  eccle- 
siastical law,  and  decide  accordingly ;  but  the  bishop  would  not  on 
any  occasion  disregard  the  general  ecclesiastical  law,  and  be  guided 
by  any  different  rules  laid  down  by  the  Courts  of  common  law. 

Let  us  now  see  whether  there  are  any  common-law  decisions  to 
the  efTect  that  there  cannot  be  a  valid  marriage  without  the 
presence  of  a  priest  I  must  again  remind  your  Lordships  that 
this  is  the  question,  and  not  whether  a  mere  executory  contract  to 
marry  constitutes  marriage.  There  has  been  cited  to  us  from  Lord 
Hale's  Manuscripts  the  note  of  a  case  (Co.  Litt  33  a,  n.  10)  sup- 
posed to  have  been  decided  in  the  reign  of  Edward  I. ,  the  state- 
ment of  which  is  so  scanty  and  obscure  that  I  think  no 
weight  can  safely  be  given  to  it  as  an  exposition  •  of  the  [*  759] 
law  in  that  reign.  We  are  not  told  how  A.  contracted 
with  B.,  or  that  any  ceremony  or  form  intended  as  spousals  passed 
between  them.  It  is  said  that  A.  married  C. ,  from  which  it  may 
be  inferred  that  he  did  not  intend  that  his  contract  with  B.  should 
operate  as  a  present  marriage,  and  that  his  contract  with  her, 
although  per  verba  deprcesenti,  was  only  meant  to  be  executory. 
However,  in  the  Court  in  which  the  action  was  originally  brought, 
it  was  held  that  B.  was  dowable  of  the  lands  in  question,  which 
could  only  be  on  the  ground  that  A.  and  B.  were  husband  and 
wife  from  the  time  of  the  contract,  for  the  marriage  could  not 
possibly  date  from  the  sentence  of  the  Ordinary.  The  judgment 
was  reversed  "  coram  Rege  et  ConcUio, "  This  is  suggested  at  the 
bar  to  have  been  on  a  writ  of  error  in  Parliament.  There  can  be 
no  doubt  that  one  of  the  King's  Councils  at  that  time  consisted 
of  the  Chancellor,  the  Treasurer,  the  Barons  of  the  Exchequer,  the 
Judges  of  either  bench,  with  the  King's  Serjeant  and  the  King's 
Attorney-General,  and  that  they  assisted  in  deciding  cases  brought 


100  MABRIAGE. 


Ho.  2.  —Beg.  Y.  Millis,  10  a  &  Tin.  769,  7e0. 


before  Parliament ;  but  I  am  not  aware  that  a  writ  of  error  in 
Parliament  was  ever  said  to  be  coram  Rege  et  ConcUio.  On  the 
contrary,  my  Lords,  this  was  the  style  of  the  Star  Chamber,  and 
I  conceive  that  the  case  must  be  considered  as  an  instance  of  the 
irregular  interference  by  the  King  and  his  Privy  Council  with  the 
ordinary  administration  of  justice ;  the  reversal  of  the  judgment 
may  have  been  out  of  favour  to  D. ,  to  whom  the  feoffment  was 
made  by  A.  after  he  was  excommunicated.  Lord  Hale  adds, 
**  Neither  the  contract  nor  the  sentence  was  a  marriage. "  The 
sentence  could  not  be  a  marriage,  no  more  could  the  contract,  if 
it  was  intended  not  as  nuptice,   but  only  as  an  engagement  to 

marry. 
[♦  760]       *  Then  come  the  two  cases  of  Foxcroft  and  Del  Jleith, 

and  I  must  express  my  astonishment  that  any  reliance 
should  be  placed  upon  them  in  support  of  the  proposition  that 
marriage  without  a  priest  is  void.  If  they  prove  anything,  they 
prove  that  marriage  by  a  priest  is  void  unless  celebrated  in  facie 
ecclesice.  Foxcroft  was  married  in  a  private  chamber  by  the 
Bishop  of  London,  and  the  only  objection  taken  to  the  validity  of 
the  marriage  was,  that  it  did  not  take  place  in  a  church  or  chapel 
and  that  it  was  without  the  celebration  of  mass.  Del  JSeith's 
case  is  precisely  the  same  in  its  leading  facts;  there  was  not  a 
mere  contract  per  verba  de  prcesenti,  but  nuptice  were  actually 
celebrated.  Del  Heith  was  solemnly  married  to  the  woman  by 
his  parish  priest;  and  because  the  marriage  was  in  a  private 
chamber,  and  not  in  facie  ecclesioey  the  son  born  after  the  marriage 
was  adjudged  a  bastard.  Can  these  cases  have  been  decided  ac- 
cording to  the  law  of  England  as  it  stood  in  the  reign  of  Edward 
I.  ?  Was  a  marriage  solemnised  by  a  priest  in  orders  or  by  a 
bishop  in  a  private  chamber  absolutely  void?  If  so,  when  was 
the  law  introduced  by  which  it  was  made  void  ?  It  is  not  pre- 
tended that  in  the  time  of  the  Anglo-Saxons  more  was  required 
than  a  benediction  by  a  mass-priest,  which  might  as  well  be  given 
in  a  private  chamber  as  in  a  church  or  chapel.  If  in  the  reign  of 
Edward  I.  all  marriages  were  void  except  such  as  were  celebrated 
in  the  face  of  the  church,  when  and  by  what  authority  did  private 
marriages  by  a  priest  in  orders  become  valid  ?  Could  an  ecclesi- 
astical canon,  sanctioned  by  the  Pope,  without  the  consent  of  the 
King  and  Parliament,  effect  the  change?  If  it  could,  where  is 
any  such  canon  to  be  found? 


B.  C.  VOL  XVII.]  MABRIAGB.  101 

No.  8.—  Beg.  y.  Killis,  10  a  &  Fin.  780-762. 

I  had  always  thought  that  these  two.cadQs  had  been  allowed  to 
have  been  decided  contrary  to  law,  and  I  Jaave  no  doubt 
that  they  were  so.  They  may  now  be  *  cited  qxnte  as  much  [*  761] 
to  show  that  a  marriage  is  void  by  the  cancm  law  if 
privately  solemnised  by  a  bishop,  as  that  an  actual  m^arriage  is 
void  without  the  presence  of  a  priest  They  prove  a  great  deal 
too  much,  or  they  prove  nothing  at  all.  But  I  cannot  dismiss 
them  without  this  observation,  which  they  fully  illustrate,  that 
you  cannot  safely  take  the  law  upon  such  a  subject  from  two  or 
three  cases,  supposed  to  have  been  decided  in  very  remote  times, 
which  may  be  misreported,  and  which  may  be  the  result  of  haste, 
violence,  or  corruption.  I  should  cite  FoxcrofVs  (1  Eoll.  Abr. 
359)  and  Del  Heith's  (Rogers  Eccl.  Law,  584)  cases  to  show 
that  the  law  upon  such  a  question  may  best  be  learned  from  text 
writers  of  authority,  calmly  and  deliberately  and  impartially 
speaking  the  general  opinion  of  the  legal  profession  at  the  time 
when  they  were  published.  In  no  writer,  lay  or  ecclesiastical, 
is  it  said  that  a  marriage  privately  solemnised  by  a  priest  is  void, 
or  that  a  marriage  is  void,  there  being  no  priest  present.  It  is 
laid  down  that  a  second  marriage  by  a  man  already  married  is 
void,  while  a  marriage  after  a  contract  per  verba  de  prcesenti 
is  only  voidable.  This  shows  that  the  mere  executory  contract, 
although  indissoluble,  is  not  marriage;  but  does  not  show  that 
there  might  not  have  been  a  complete  marriage  without  a  priest, 
had  the  parties  so  wished  and  intended. 

The  authority  of  Perkins  has  been  greatly  relied  upon  at  the 
bar,  as  showing  that  unless  there  be  a  marriage  by  a  priest,  the 
woman  shall  not  have  dower.  Now,  without  considering  whether 
this  may  mean  dower  ad  ostium  ecclesice,  I  would  first  question 
whether  the  right  to  dower  would  be  a  certain  test  of  marriage. 
For  the  church,  the  test  is  whether  the  parties  are  considered  as 
living  together  in  lawful  wedlock ;  and  for  the  lay  tribu- 
nals, whether  the  issue  *  be  legitimate.  But  I  think  it  is  [*  762] 
quite  clear  that  the  woman  who,  according  to  Perkins, 
shall  not  have  dower,  is  a  woman  who  had  entered  into  an  execu- 
tory contract  of  marriage  to  be  afterwards  solemnised;  for  he 
says  (sect.  306),"  If  a  man  seised  of  land  in  fee  make  a  contract  of 
matrimony  with  J.  S. ,  and  he  dies  before  the  marriage  is  solem- 
nised between  them,  she  shall  not  have  dower,  for  she  never  was 
his  wife."     Does  he  not,  in  the  most  explicit  manner,  intimate 


102  MARRIAGE. 


No.  2.  —  Beg.  y.  MiUii,  10  CI.  &  Fin.  762,  763. 


that,  according  to  the  intention  of  the  parties,  the  contract  of 
matrimony  betweeji  'th^m  was  to  be  afterwards  solemnised ;  that 
they  never  intended- Jthe  contract  to  operate  as  marriage  and  that, 
till  the  solepwiiSation,  they  were  not  to  live  together  as  man  and 
wife  ?  T^^Rrever  Perkins  uses  the  expression  *'  contract  of  mar- 
riage, "  )i^,  places  it  in  opposition  to  actual  marriage ;  as  in  title 
**  Fet^ffments,"  where  he  says,  **  If  a  contract  of  marriage  be 
/l^etyv^en  a  man  and  a  woman,  yet  one  of  them  may  enfeoff  the 
-bther,  for  yet  they  are  not  one  person  in  law,  inasmuch  as  if  the 
woman  dieth  before  the  marriage  solemnised  betwixt  them, 
the  man  unto  whom  she  was  contracted  shall  not  have  the  goods 
of  the  wife  as  her  husband. "  He  is  here  plainly  speaking  of  an 
engagement  to  marry.  Bracton,  on  the  contrary,  when  he  is  con- 
sidering the  subject  of  gifts  between  husband  and  wife,  supposes 
the  parties  to  be  married  whether  they  marry  with  or  without  the 
forms  of  the  church,  their  intention  being  to  enter  into  the  mar- 
ried state :  "  Matrimonium  autem  accipi  possit,  sive  sit  publico 
contractum  vel  fides  data  quod  separari  non  possunt,  et  re  vera 
donationes  inter  virum  et  uxorem  constante  matrimonio  valere  non 
debent. "  With  the  plighting  of  troth,  which  he  supposes  to  take 
place  without  any  public  ceremony,  the  parties  come  to- 
[*  763]  gether  as  man  and  wife,  so  that  they  *  cannot  be  separated 
This  is  totally  different  from  the  contract  of  Perkins  to  be 
afterwards  solemnised,  and  is  attended  with  totally  different 
consequences. 

The  next  case  much  relied  upon  at  the  bar  was  Bunting  v. 
Lepingwell,  4  Co.  Rep.  29,  Moore,  169;  and  supposing  that  Bunt- 
ing and  Agnes  Addishall  had  gone  through  the  form  of  a  present 
marriage  without  the  presence  of  a  priest,  or  had  said  or  done  any- 
thing which  they  intended  to  operate  as  present  marriage,  the 
case  would  have  been  very  important ;  for  on  that  supposition,  if 
I  am  right  in  supposing  that  by  the  common  law  the  presence  of  a 
priest  was  not  necessary  to  the  validity  of  marriage,  no  doubt 
could  have  arisen  as  to  the  legitimacy  of  Charles  Bunting,  the 
second  marriage  being  absolutely  void,  and  there  being  no  occa- 
sion for  any  sentence  of  the  Ecclesiastical  Court  to  set  it  aside,  or 
"  quod  prcedicta  Agnes  subiret  matrimonium  cumpra^fato  Bunting,  * 
But  in  referring  to  the  special  verdict  it  is  quite  clear  that  Bunt- 
ing and  Agnes,  although  they  used  verba  de  prcesenti,  did  not 
thereby  mean  to  become  man  and  wife,  but  merely  entered  into 


K.  C.  VOL  XVn.]  MARRIAGE-  103 

No.  2.  —Beg.  y.  MilMs,  10  CI.  &  Fin.  763-766. 

an  absolute  engagement  to  solemnise  a  marriage  between  them  at 

a  future  time;  it  was   only  an  executory  contract;  and  when 

Agnes  had  taken  Twede  to  husband,  Bunting  libelled  her  on  the 

contract    Bunting  and  she  under  this  engagement  never  had  lived 

^ether,  or  intended   to  live  together,  as  man  and  wife;  their 

engagement,  therefore,  was   only  in  the  nature  of  a  precontract, 

which  might  then  be  enforced  in  the  Ecclesiastical  Court,  and 

^hich  rendered  a  subsequent  marriage  with  another  voidable, 

but  which  did  not  in  itself  amount  to  a  marriage.     But 

^iere  is  the  case  in  *  which  it  has  been  held  that  if  par-  [*  764] 

ties  intend  to  enter  into  the  state  of  matrimony,  and  use 

a  ceremony  per  verba  de  prcesenti,  and  live  together  as  man  and 

^fe,  and  believe  that  they  are  lawfully  united  in  holy  wedlock, 

this  w-as  a  mere  executory  contract ;  that  a  subsequent  marriage 

by  one  of  them  during  the  life  of  the  other  would  not  be  void ; 

a^fi  that  such  a  subsequent  marriage   must  be  set  aside  on  the 

ground  of  precontract?    I  quite  agree  that  the  contract  actually 

eutered  into  between  Bunting  and  Agnes  neither  constituted,  nor 

^us  ever  intended  to  constitute,  a  complete  marriage,  without  the 

intervention  of  a  religious  ceremony. 

*^e  case  of   Weld  v.  Ghamherlaine,  2  Show.  300,  is  relied  upon 
"y  both  sides ;  Chief  Justice  Pemberton  having  there  held  that  a 
^i^arriage   by  an  ejected  minister,  without  a  ring,    and  without 
toWowing  the  ritual  of  the  Church  of  England,  was  valid.     But  I 
^^not  help  thinking  that  the  opinion  of  the  Chief  Justice  was 
chiefly  influenced  by  the  consideration  that  this  was  not  a  mere 
tJontract  to  marry  hereafter;  that  both   parties  intended  at  the 
moment  to  enter  into  the  married  state;  that  nuptice  had  been 
celebmted  between  them ;  and  that  he  would  have  given  the  same 
effect  to  the  ceremony,  if,  instead  of  an  ejected  minister  who  had 
been  episcopally  ordained,  but  was  not  then  recognised  by  the 
church,  the  clerygman  present  had  been  ordained  by  the  imposi- 
tion of  hands  of  several  ejected  ministers,  or,  in  other  words,  a 
Presbyterian  minister. 
The  only  other  case  much  relied  upon  by  the  counsel  for  the 
I  prisoner  was  Haydon  v.   Gcndd,  1  Salk.  119.     Here  there  was  an 

m  adual  marriage,  and  the  man  and  the  woman  intended  to  becoxtxe 

M  husband  and  wife,  and  believed  that  they  were  so,  and 

I  lived  together  as   such  for  *  seven  years,  till  she  died.    [*  ^  ^  * 

*  They  were  of  a  sect  called  Sabbatarians,  and  were  married  ^^  > 

L 


104  MARRIAGE. 


Ko.  2.  —Beg.  y.  Mfllii,  10  CI.  &  Fin.  766,  766. 


by  one  of  their  ministers  in  a  Sabbatarian  congregation,  and  used 
the  form  of  the  Common  Prayer,  except  the  ring.  Had  there  been 
a  decision  of  a  Court  of  law  that  this  was  no  marriage,  and  that 
the  issue  were  illegitimate,  it  would  have  been  expressly  in  point; 
but  the  case  was  only  in  the  Ecclesiastical  Court,  and  the  only 
question  there  was,  whether  the  husband  was  entitled  to  euimin- 
istration.  It  was  held  in  the  Prerogative  Court,  and  confirmed  by 
the  delegates,  that  the  husband  could  not  demand  administration 
from  the  Ecclesiastical  Court,  as  he  had  not  been  married  accord- 
ing to  the  forms  of  the  church,  "  though  perhaps  it  should  be  so 
that  the  wife,  who  is  the  weaker  sex,  or  the  issue  of  this  mar- 
riage, who  are  in  no  fault,  might  entitle  themselves  by  such  mar- 
riage to  a  temporal  right "  The  delegates,  therefore,  who  allowed 
the  husband  to  be  punished  for  his  nonconformity  to  the  church, 
instead  of  deciding  the  marriage  to  be  void,  appear  to  have  inti- 
mated an  opinion  that  under  it  the  wife  would  have  been  entitled 
to  dower,  and  the  children  would  have  been  legitimate.  The 
reporter,  it  is  true,  adds,  the  constant  form  of  pleading  marriage 
is,  "  per  presh/terum  sacris  ordinihus  constitutum, "  But  if  this 
were  the  only  form,  it  would  exclude  marriages  by  a  deacon, 
which  are  now  admitted  to  be  valid.  Had  there  been  a  reference 
to  the  Court  which  decided  Haydon  v.  Gould,  pending  a  real 
action  involving  the  question  of  the  legitimacy  of  the  eldest  son, 
there  is  reason  to  suppose  the  certificate  would  have  been  that  he 
was  bom  in  justice  nuptiis ;  and  I  make  no  doubt  that  in  such  a 
case  such  an  answer  would  have  been  returned  by  the  bishop  in 
early  times,  when  it  was  the  universal  opinion  of  the 
[*  766]  *  Western  church  that  to  administer  the  sacrament  and  to 
constitute  the  bond  of  marriage,  the  presence  of  a  priest 
was  unnecessary.  With  respect  to  the  refusal  of  administration 
to  the  husband,  I  am  by  no  means  clear  that  the  same  decision 
would  not  have  taken  place  under  a  clandestine  marriage  by  a 
Roman  Catholic  priest. 

Beau  Fielding's  case  is  exceedingly  entertaining  to  read,  but 
throws  no  light  upon  the  present  controversy,  as  no  question  arose 
as  to  the  validity  of  the  first  marriage,  and  his  guilt  depended 
upon  the  credit  of  the  witnesses  who  swore  to  the  second. 

The  Sabbatarian  case  was  decided  in  the  ninth  year  of  Queen 
Anne,  and  I  will  venture  to  say,  that  from  that  time  downwards 
till  the  present  controversy  arose,  about  180  years,  the  opinion  of 


IL  C.  VOL  XVn.]  MARRIAGE,  105 

Ko.  2.  — Beg.  y.  XOlii,  10  CI.  &  Fin.  766,  767. 

al]  the  greatest  Judges  who  have  presided  in  Westminster  Hall 
and  in  Doctors'  Commons  has  been,  that  by  the  common  law  the 
presence  of  a  priest  in  orders  was  not  indispensably  necessary  to 
the  celebration  of  a  valid  marriage. 

In  Jesson  v.  Collins,  2  Salk.  437,  we  have  the  dictum  of  that 
distinguished  Judge,  Lord  Holt,  "  that  a  contract  per  verba  de 
proesenti  was  a  marriage."  He,  no  doubt,  meant  where  it  was 
intended  to  operate  as  a  present  marriage,  and  he  expressly 
excluded  the  presence  of  a  priest.  It  seems  to  me  plain  that  by 
a  maniage,  he  must  be  understood  to  intend  a  marriage  by  the 
common  law  of  the  land.  It  has  been  supposed  that  this  could 
not  be  his  meaning,  because  in  Wigmore's  Case  (2  Salk.  438)  he 
s^ys,  *  By  the  canon  law,  a  contract  per  verba  de  prcesenti  is  a 
marriage. "  Both  propositions  are  true,  and  both  are  con- 
sistent. The  common  law  adopted  *that  maxim  of  the  [*767] 
c^oix  law  with  respect  to  the  validity  of  marriages.  This 
^ill  l>e  found  to  be  the  opinion  and  the  language  of  Sir  W.  Scott, 
tbe  Judge  of  the  highest  authority  on  this  subject  who  has  ever 
piftsided  in  an  English  Court  of  justice.  Holt  appears  to  have 
^^^  in  Wigmore's  Case,  as  was  said  by  the  delegates  in  Haydon 
V.  Graxdd,  that  to  entitle  the  parties  to  all  the  privileges  attending 
^^\  marriage,  marriages  ought  to  be  solemnised  according  to 
^^  rttes  of  the  Church  of  England;  but  he  gives  no  countenance 
to  the  notion  that  the  marriage  by  the  minister  of  the  congregation 
^^o  ig  uQ^  in  orders  is  a  nullity,  and  that  the  children  would  be 
Dastards.  We  have  the  authority  of  Mr.  Justice  Gould,  Mr. 
Jiistice  Powis,  and  that  distinguished  Judge,  Mr.  Justice  John 
^^^^^U.,  to  the  same  effect  as  that  of  Lord  Holt  ;  for  according  to 
"^^  ^i^port  of  Jesson  v.  Collins,  under  the  name  of  Collins  v.  Jessot, 
8  Mod.  155,  the  Chief  Justice  saying,  "  If  a  contract  be  per  verba 
^  Prcesenti,  it  amounts  to  an  actual  marriage,  which  the  very 
Pities  themselves  cannot  dissolve  by  release  or  other  mutual 
^Sf^ement,  for  it  is  as  much  a  marriage  in  the  sight  of  God  as  if  it 
^^4  been  in  facie  ecclesice;  "  the  reporter  observes  that  to  this  the 
^bo\e  Court  agreed,  **  quoe  omnia  tota  Cur,  concess, " 

I  do  not  find  the  subject  again  discussed  till  the  publication  of 
Blackstone's  Commentaries,  where,  if  anywhere,  we  may  look 
to  find  the  principles  of  our  jurisprudence.  If  he  has  fallen  into 
some  minute  mistakes  in  matters  of  detail,  I  believe  upon  a  great 
question  like  this,  as  to  the  constitution  of  marriage,  there  is  no 


106  MARRIAGE. 


Ko.  2.  — Beg.  y.  lOUii,  10  CL  &  Flii.  767-709. 


authority  to  be  more  relied  upon.  He  began,  before  the 
[*768]  Marriage  Act,  to  read   the   lectures  *at  Oxford,   which 

became  the  Commentaries,  but  did  not  publish  them  till 
after,  and  his  attention  must  have  been  particularly  directed  to 
the  law  of  marriage.  Does  he  say  that  at  common  law  marriage 
could  not  be  contracted  in  England  without  the  intervention  of  a 
priest  ?  His  words  are,  *  Our  law  considers  marriage  in  no  other 
light  than  as  a  civil  contract;  the  holiness  of  the  matrimonial 
state  is  left  entirely  to  the  ecclesiastical  law. "  1  Blacks.  Comm. 
437.  He  lays  it  down  in  the  most  express  terms,  that,  before 
the  Marriage  Act,  in  England  a  marriage  per  verba  de  prcesenti^ 
without  the  intervention  of  a  priest,  was  ipsum  matrimonium. 
He  says  that  for  many  purposes  it  was  marriage;  it  must  have 
been  marriage  to  make  the  children  legitimate,  for  that  is  the  test 
by  which  a  valid  marriage  is  to  be  determined ;  and  if  it  makes 
the  children  legitimate,  there  can  be  no  doubt  it  would  be  valid 
so  as  to  make  the  person  who  has  entered  into  it  liable  for  the 
penalties  of  bigamy  if  he  enters  into  a  second  marriage.  He 
mentions  Lord  Hardwicke's  Act  (26  Geo.  III.,  c.  33);  he  then 
says,  "  Much  may  be  and  much  has  been  said  both  for  and  against 
this  innovation  upon  our  ancient  laws  and  constitution."  He 
adds,  "  Any  contract  made  per  verba  de  prcesenti,  or  in  words  of 
the  present  tense,  and,  in  case  of  cohabitation,  per  verba  de  future 
also,  between  persons  able  to  contract,  was  before  the  late  Act 
deemed  a  valid  marriage  to  many  purposes. "  This  passage  is  to 
be  found  in  the  twenty -five  editions  of  his  work,  which  have  now 
for  a  period  approaching  to  a  century  taught  the  law  of  England 
to  this   country  and  to   all   civilised  nations  who  have  had  any 

curiosity  to  inquire  into  our  polity. 
[*  769]       •  At  last  came   the   case  of   Dalrymple  v.   Dalrymple 

(p.  11,  ante),  which  was  for  many  years  understood  to 
have  finally  settled  the  law  by  judicial  decision.  I  believe  it  is 
universally  allowed  that  Lord  Stowell  was  the  greatest  master  of 
the  civil  and  canon  law  that  ever  presided  in  our  Courts,  and  that 
this  is  the  most  masterly  judgment  he  ever  delivered.  I  have 
read  it  over  and  over  again,  and  always  with  fresh  delight  For 
lucid  arrangement,  for  depth  of  learning,  for  accuracy  of  reasoning, 
and  for  felicity  of  diction,  it  is  almost  unrivalled.  Although  it 
seems  to  flow  from  him  so  easily  and  so  naturally,  it  is  evidently 
the  result   of  great  labour  and  research.     Luckily  he  had  full 


B.  C.  VOL.  xvil]  maeriage,  107 

Ho.  2.  —  Beg.  y.  Mfllig,  10  Gl.  &  Fin.  769,  770. 

leisuie  to  mature  his  thoughts  upon  the  subject,  and  satisfactorily 
to    explain   to   us  the  authorities  and  arguments  on  which  his 
opinion  was  founded.     Your  Lordships  are   aware  that  the  case 
turned  upon  the  validity  of  a  marriage  in  Scotland,  per  verba  de 
prcesenti,  without  the  intervention  of  a  clergyman,  and  it  became 
essential  to   consider  what  was   the  general  law  respecting  the 
maxiner  in  which  marriage  was  contracted.     Your  Lordships  will 
find   Le  clearly  lays  it  down  that  there  was  the  same  law  on  the 
subject  all  over  Europe,  and  that,  till  the  Council  of  Trent,  by 
this  law  there  was  no  necessity  for  the  intervention  of  a  priest  to 
constitute  a  valid   marriage.     Among  other  things  to  the  same 
effect,  he  says :  "  The  law  of  the  church,  although  in  conformity 
to  the  prevailing  theological  opinion  it  reverenced  marriage  as  a 
sacrament,  still  so  far  respected  its  natural  and  civil  origin  as  to 
consider  that  where  the  natural  and  civil  contract  was  formed,  it 
'^^  the  full  essence  of  matrimony  without  the  interven- 
tion cf  the  priest;  it  had  even  in  *that  state  the  character  [*770] 
^^   ^    sacrament,  for  it  is  a   misapprehension  to  suppose 
that  this  intervention  was  required  as  matter  of  necessity  even  for 
.    ^     purpose  before  the  Council  of  Trent.     It  appears  from  the 
^istoxies  of  that  Council,  as  well  as  from  many  other  authorities, 
l^at    this  was  the  state  of  the  earlier  law  till  that  Council  passed 
^®  decrees  for  the  reformation  of  marriage.     Such  was  the  state 
^'     tilie  canon  law,  the  known  basis  of  the  matrimonial  law  of 
^^^^'^ope.     The  canon  law,  as  I  have  before  described  it  to  be,  is 
we  l>asis  of  the  marriage  law  of  Scotland,  as  it  is  of  the  marriage 
f^   of  all  Europe.     It  becomes  of  importance,  therefore,  to  con- 
sictexr  what  is  the  ancient  general  law  upon  this  subject ;  and  on 
tai^     point  it  is  not  necessary  for  me  to  restate  that  by  the  ancient 
g^Xi^x-al  law  of   Europe,  a   contract  per  verba  de  prcesenti,  or  a 
P^oxxiise  per  verba  de  futuro   cum   copula,    constituted   a   valid 
^^xrriage,  without  the  intervention  of  a  priest,  till  the  time  of 
^^^     Council  of  Trent." 

-^^Td  Kenyon  had  before  laid  down  the  same  doctrine,  though 

^^  ^  less  peremptory  manner :  "  I  think, "  he  says,  **  though  I  do 

^^t  speak  meaning  to  be  bound,  that  even  an  agreement  between 

^^e  parties  per  verba  de  prcesenti  is  ipsum  matrimonium. "    Reed  v. 

Pa'««er,  1  Peake,  303  (3  R  R.  696).     But  ever  since  Dalrymple  v. 

^^Irymple,  every  Judge  who   has  touched  upon  the  subject  has 

unhesitatingly  adhered   to  the  law  as  there  laid  down  by  Lord 


108  MARRIAGE. 


Ko.  2.  —Beg.  y.  mUif,  10  a  &  Fin.  770-778. 


Stowell.  In  Lautour  v.  Teesdale,  8  Taunt  830  (17  R  R  518), 
Lord  Chief  Justice  Gibbs  says :  "  The  judgment  of  Sir  W.  Scott 
in  Dalrymple  v.  Dalrymple  has  cleared  the  present  case  of  all 
the  diflSculty  which  might  at  a  former  time  have  belonged  to 
it  From  the  reasonings  there  made  use  of,  and  from  the 
[*  771]  authorities  cited  by  *  that  learned  person,  it  appears  that 
the  canon  law  is  the  general  law  throughout  Europe  as  to 
marriages,  except  where  that  has  been  altered  by  the  municipal 
law  of  any  particular  place.  From  that  case,  and  from  those 
authorities,  it  also  appears  that  before  the  Marriage  Act,  mar- 
riages in  this  country  were  always  governed  by  the  canon  law, 
which  the  defendants,  therefore,  must  be  taken  to  have  carried 
with  them  to  Madras.  It  appears  also  that  a  contract  of  marriage 
per  verba  de  proesenti  is  considered  to  be  an  actual  marriage, 
though  doubts  have  been  entertained  whether  it  be  so  unless 
followed  by  cohabitation." 

In  Bex  V.  The  Inhabitants  of  Brampton,  10  East,  282  (10  R  R 
299),  which  turned  upon  the  validity  of  a  marriage  contracted  in 
a  part  of  St  Domingo  occupied  by  the  English  army.  Lord 
Ellenborough  says :  "  I  may  suppose,  in  the  absence  of  any  evi- 
dence to  the  contrary,  that  the  law  of  England,  ecclesiastical  and 
civil,  was  recognised  by  subjects  of  England  in  a  place  occupied  by 
the  King's  troops,  who  would  implicitly  carry  that  law  with  them. 
It  is  then  to  be  seen  whether  this  would  have  been  a  good  mar- 
riage here  before  the  Marriage  Act  Now  certainly  a  contract  of 
marriage  per  verba  de  prmsenti  would  have  bound  the  parties  before 
that  Act " 

In  Smith  v.  Maxioell,  1  Ryan  &  M.  80,  tried  before  Lord 
Wynford,  Chief  Justice  of  the  Common  Pleas,  where  a  question 
was  made  respecting  the  validity  of  a  marriage  in  Ireland  which 
had  been  celebrated  by  a  dissenting  minister  in  a  private  house, 
he  observed :  "  I  am  aware  of  no  Irish  law  which  takes  marriages 
performed  in  that  country  out  of  the  rules  which  prevailed  in  this 
before  the  passing  of  that  Act,  and  which,  as  it  is  said 
[*  772]  *  in  the  case  of  Dalrymple  v.  Dalrymple,  are  common  to 
the  greater  part  of  Europe.  That  case  has  placed  it 
beyond  a  doubt  that  a  marriage  so  celebrated  as  this  has  been, 
would  have  been  held  valid  in  this  country  before  the  existence 
of  that  statute. "  That  was  a  marriage  celebrated  in  Ireland  by  a 
Presbyterian  minister. 


R,  C.  VOL.  XVII.]  MARRIAGE.  109 

Ko.  2.  —  Beg.  y.  Millis,  10  a  &  Fin.  772,  778. 

The  Lord  Chancellor.  —  Between  what  parties  ? 
Irord  Campbell.  — That  would    be    quite    immaterial.     Lord 
Wynfokd  says,  "  This  marriage  would  have  been  valid  in  England 
befare  the  Marriage  Act "     And  in  England  there  is  no  statute 
^hich  makes  any  distinction  as  to  the  religious  persuasion  of  the 
parties  married  by  a  dissenting  minister. 
The  Lord  Chancellor.  —  So  far  it  is  a  dictum. 
Lord    Campbell.  — But  as  far  as  respects  this  marriage   in 
Ireland  it  is  expressly  in  point.     He  says,  "  There   can  be  no 
doubt     that  a  marriage   so  celebrated  (that  is  by  a  Presbyterian 
Diiiiister  in  a  private  house)  would  have  been  valid  in  England 
^f  oro     the  existence  of   the   Marriage  Act "     In  Beer  v.    Ward 
y-^  CI.   &  Fin.  611  n.),  another  case  on  the  validity  of  a  marriage 
^^     -England  before   the  Marriage  Act,  Lord  Tenterden  laid   it 
flow-n    distinctly,  that  if  the  parties  in  the  presence  of  witnesses 
lormctliy   acknowledged   themselves  to  be   man   and  wife,   that 
^fox-^    the  Marriage  Act  constituted  a  marriage  valid  in  law,  and 
"-^^^ti     -tlie  issue  would  be  legitimate.     He  said :  "  As  I  understand 
^^   Ict^v  before  the  Marriage  Act,  a  marriage  might  be  even  cele- 
*^^-^<i  without  a  clergyman,  upon  a  declaration  by  the  parties,  in 
^Ocis   of  the  contract,  that  they  were  man  and  wife,  accompanied 
^    ^c>liabitation  as  man  and  wife.     A  contract  verbally 
^^^     before  witnesses,  and  a  *  declaration  of  that  in  the  [*  773] 
^      ^^Xice  of  witnesses,  would,  at  that  time  of  our  history, 

^^^   xnade  a  good  and  valid  marriage  in  England,  as  it  does  now 
^'^   Sootland.- 

•^l^e  Lord  Chancellor.  —  That  is  not  in  print. 
,    ^^-"^x-d  Campbell.  —  It  is  not  in  print,  but  it  is  taken  from  the 
,^-*^t;liand  writer's  notes,  authenticated  by  Mr.   Serjeant  Clarke, 
^^   'Vras  counsel  in  the  cause. 
.      -^lie  Lord  Chancellor.  —  I  certainly  heard  him  express  himself 

'^l^x^t  efifect 

^^   '^--•ord  Campbell. —  Here  then  we  have  a  most  positive  declara- 

^*     ^^  ty  Lord  Tenterden,  a  most  cautious  Judge  and  most  atten- 

*        ^  to  the  rights  of  the  church,  that  before  the  Marriage  Act  the 

^^^  of  England  and  the  law  of  Scotland  upon  this  subject  were 

^     same;  and  that   in   England,    if  parties  came  together  and 

^^^lared  that  they  were  man  and  wife,  and  lived  together  as  man 

^^d  wife,  they  were  married  to  all  intents  and  purposes. 

The  doctrine  of  Lord  Stowell  in  Dalrymple  v.  Dalrymple  has 


110  MABBIA6E. 


Ho.  2.  — Beg.  y.  MillU,  10  OL  &  Fin.  778-770. 


been  recognised  by  all  his  successors,  and  I  have  reason  to  believe 
is  at  this  day  approved  of  both  by  the  Judges  and  the  Bar  in 
Doctors'  Commons.  In  Wright  v.  Elwood,  1  Curt.  670,  Sir  Herbert 
Jenner,  the  present  Dean  of  the  Arches,  a  most  learned  civilian, 
and  most  cautious  as  well  as  laborious  Judge,  says,  ^  Before  26 
Geo.  XL,  c  33,  marriages  without  publication  of  banns  or  any 
religious  ceremony,  contracts  per  verba  de  prcesenti,  might  be  good 
and  valid,  though  irregular;  the  parties  and  the  minister  might 
be   liable   to  punishment,  but  the  vinculum  viatrimonii  was  not 

affected.  * 
[♦  774]  Now  I  come  to  criminal  cases.  In  criminal  as  *  well 
as  in  civil  proceedings,  the  validity  of  a  marriage  by  the 
common  law,  celebrated  without  the  intervention  of  a  priest  in 
episcopal  orders,  has  been  repeatedly  recognised  by  judicial 
decision.  Lathroppe  Murray  was  convicted  of  bigamy  at  the  Old 
Bailey,  in  the  year  1815.  The  case  turned  on  the  legality  of  the 
first  marriage,  which  was  celebrated  in  Ireland  by  a  Presbyterian 
minister.  The  prisoner  was  a  member  of  the  Established  Church, 
the  woman  to  whom  he  was  married  a  dissenter ;  the  facts  were 
the  same  as  here.  The  Eecorder  of  London,  after  consulting  the 
Judges,  held  the  first  marriage  to  be  valid.  The  prisoner  peti- 
tioned the  House  of  Commons  to  interfere  in  his  favour,  on  the 
ground  that  the  first  marriage  was  invalid.  On  that  occasion  Sir 
Samuel  Shepherd,  then  Solicitor-General,  a  most  learned  and  accu- 
rate lawyer,  and  then,  I  may  say,  speaking  judicially,  observed : 
"  That  in  his  opinion  and  that  of  the  Attorney-General,  after  hav- 
ing examined  every  Act  of  Parliament  in  Ireland  respecting  the 
validity  of  the  marriage  ceremony,  the  first  marriage  was  a  legal 
one.  That  certain  very  eminent  civilians  in  Ireland  had  been 
consulted  several  years  before  respecting  that  marriage,  all  of 
whom  declare  it  was  a  legal  marriage,  and  that  he  had  no  doubt 
as  to  the  legality  of  the  conviction. "  This  is  the  identical  case 
of  Reg,  V.  Millis. 

In  Ireland  there  have  been  many  convictions  for  bigamy,  the 
marriage  having  been  by  a  dissenting  minister,  and  both  parties 
not  dissenters.  I  will  mention  a  few,  of  which  I  have  MS. 
authentic  reports.  In  the  case  of  Rex  v.  H,  Marshall,  tried  at 
Enniskillen  Spring  Assizes,  1828,  before  Baron  M'Cleland,  the 
first  marriage  was  by  a  Presbyterian  clergyman,  the  prisoner 
[*  775]  being  a  member  of  the  Established  Church ;  the  *  prisoner 


B.  C.  YOL  XVIL]  MAERIAGK  111 

Ko.  2.  —  Beg.  y.  XiUii,  10  a  &  Fin.  775,  770. 

• 

was  convicted     In  Eex  v.    WUson,    tried  at   Armagh  Summer 

Assizes,  1828,   before  Mr.  Justice   Torrens,  the   first  marriage 

Was  unquestioned ;  the  second  was  celebrated  by  a  Presbyterian 

cleigyman,  the  prisoner  being  a  member  of  the  Established  Church, 

^d  the  woman  a  Presbyterian ;  the  prisoner  was  convicted.     In 

-%.  V.  Salliday,  tried  at  Donegal  Spring  Assizes,  1838,  before 

Mr.  Baron  Pennefather  ;  the  prisoner  being  indicted  for  bigamy, 

»  Presbyterian  minister  was  produced  on  the  part  of  the  Crown  to 

prove  the  celebration   of   the  first  marriage  by  himself.      The 

prisoner  was  a  member  of  the  Established  Church,  the  woman  a 

^^byterian.     The  counsel  on  behalf  of  the  prisoner  contended 

^^t  such  a  marriage  was  invalid ;  but  Mr.  Baron  Pennefather 

^^  he  considered  such  a  marriage  in  Ireland  to  be  perfectly  good, 

*°^   directed  the  jury  accordingly.      The  prisoner  was  acquitted ; 

"^   tlie  reason  was  that  the  witnesses  to  one  marriage  did  not 

^^^^iently  identify  him.     In  Eeg,    v.  Bobin^on,  tried  at  Cavan 

P^iHg  Assizes,  before  Mr.  Baron  Foster,  the  prisoner  was  in- 

^^teci  for  bigamy :  it  was  proved  for  the  Crown  that  the  prisoner 

^^     both   wives  were   Protestants;  that   the  first  marriage  was 

^.  ^^^nised  by  a  seceding  clergyman ;  that  the  prisoner  cohabited 

.    ^    his  first  wife,  who  was  then  living;  that  the  second  mar- 

*8e  -vvas  solemnised  by  a  person  who  had  been  duly  ordained  by 

^     %ynod  of   Ulster,  and  had  a  congregation,  but  was  removed 

^    it,  and  ceased  to  be  a  member  of  the  Presbyterian  Church 

^^x^  this  marriage.     The  counsel  for  the  prisoner  submitted  that 

"^^re  was  not  legal  evidence  of  the  second  marriage,  the  person 

^^   performed  the  ceremony  not  being  qualified,  inasmuch  as  he 

^^   withdrawn  from  the  Presbyterian   congregation  and 

rUcKi,  and  should  therefore  be  *  considered  as  a  layman.   [*  776] 

^^    counsel  for  the  Crown   contended,  that  even  if  the 

^^xiaony  were  performed  by  a  layman,  that  it  would  be  valid, 

^^d    cited  The  King  v.   Marshall.     Mr.   Baron  Foster,  after  con- 

f^^ng  with  Baron  Pennefather,  held  that  the  marriage  in  ques- 

^^U    was  good.     The    prisoner  was    found  guilty.     In  Bex  v. 

^  ^aughlin,  tried  at  Antrim  Spring  Assizes,  1831,  before   Mr 

^^tice  Moore,  for  bigamy ;  the  prisoner,  being  a  member  of  the 

^^blished  Church,  was  married  to  a  Presbyterian  woman  by  a 

*^^\)y terian  minister ;  afterwards,  during  her  life,  he  was  again 

^'^^^nied  by  a  Presbyterian  minister  to  another  Presbyterian  woman. 

^^  Was  argued  for  the  prisoner  that  the  marriages  were  illegal,  as 


112  MABRIA6E. 


Ko.  2.  —  Beg.  y.  ICimi,  10  CL  &  Fin.  776,  777. 


having  been  celebrated  by  Presbyterian  ministers,  though  one  of 
the  parties  belonged  to  the  Established  Church.  Judge  MooBE 
declared  both  marriages  legal,  and  added  that  the  point  had  been 
so  often  ruled  by  the  Judges  on  the  circuits,  that  he  had  scarcely 
expected  to  hear  it  raised.  The  prisoner  was  convicted,  and  trans- 
ported for  seven  years.  In  The  Qioem  v.  Daniel  Ancruey,  tried 
at  Down  Summer  Assizes,  1841,  before  Mr.  Justice  Crampton, 
on  an  indictment  for  bigamy;  Mary  O'Hara  proved  that  she  saw 
the  prisoner  married,  about  three  years  before,  to  Margaret  Berry, 
by  Mr.  Murray,  the  Eoman  Catholic  priest  of  Newry,  in  the 
Boman  Catholic  chapel  of  that  town,  and  that  said  Margaret  is 
still  alive.  John  Conroy  swore  that  he  knew  prisoner  and  said 
Margaret  to  live  together  as  man  and  wife;  that  in  May  last, 
prisoner  said  he  had  got  a  divorce  from  her;  and  that  witness 
then  accompanied  him  in  the  evening,  and  saw  him  married  to 
Margaret  Courtney,  by  the  Eev.   Mr.  Weir,  Presbyterian  minister 

in  Newry.  Margaret  Courtney  stated  that  she  was  and  is 
[•  777]  a  *  Presbyterian ;  she  left  prisoner  at  the  end  of  a  week, 

on  discovering  his  first  marriage.  The  prisoner  was  con- 
victed, and  sentenced  to  twelve  months'  imprisonment  with  hard 
labour ;  which  punishment  he  underwent. 

These  are  the  criminal  cases  to  which  I  beg  to  draw  your  atten- 
tion ;  and  I  ask,  are  we  now  to  be  told  that  all  these  convictions 
were  illegal,  and  that  if,  upon  a  second  conviction,  there  had  been 
a  counter  plea  to  the  prayer  of  clergy,  the  Judges  who  gave  effect 
to  it  would  have  been  guilty  of  murder?  I  refrain  from  citing 
the  passages  from  Chief  Baron  Comyn's  and  other  abridgments  of 
the  common  law,  to  show  the  constant  opinion  of  the  profession 
in  this  country ;  but  I  cannot  refrain  from  asking  your  Lordships 
to  consider  how  the  subject  has  been  viewed  by  our  brethren  in 
the  United  States  of  America.  They  carried  the  common  law 
of  England  along  with  them,  and  jurisprudence  is  the  department 
of  human  knowledge  to  which,  as  pointed  out  by  Burke,  they 
have  chiefly  devoted  themselves,  and  in  which  they  have  chiefly 
excelled.  Their  two  greatest  legal  luminaries  are  Chancellor 
Kent  and  Professor  Story.  In  Kent's  Commentaries  I  find 
this  passage :  "  No  peculiar  ceremonies  are  requisite  by  the  com- 
mon law  "  (he  is  speaking  of  the  common  law  of  England)  "  to 
the  valid  celebration  of  marriage;  the  consent  of  the  parties  is 
all  that  is  required.     If  the  contract  be  made  per  verba  deprcesenti, 


^  C.  VOL.  XVn.]  MARRIAGE.  113 

Ho.  2.  —Beg.  y.  Millig,  10  a  &  Fin.  777-779. 

or  if  made  per  verba  de  futuro  and  be  followed  by  consummation, 
it  amounts   to  a  valid  marriage,  and  it  is  equally  binding  as  if 
madein/acie  ecclesice.     This  is  the  doctrine  of  the  common  law, 
«nd  also  of  the  canon  law  which  governed  marriages  in  England 
prior  to  the  Marriage  Act ;  and  the  canon  law  is  also  the  general 
law  throughout  Europe  as  to  marriages,  except  where  it 
ias  been  *  altered. "     He  then  goes  on  to  point  out  par-  [*  778] 
ticuJar  States,  such  as  Maine  and  Massachusetts,  in  which 
particular  regulations  as  to  the  form  of  contracting  marriage  are 
introduced  by  statute,  but  intimates  that  in  the  absence  of  posi- 
tive statute,  the  common  law  of  England,  as  he  has  expounded  it, 
governs  the  marriage  contract. 
Itt  Story's  treatise  "  On  the  Conflict  of  Laws,"  he  says  (c.  5), 
The     common   law  of   England,  like   the  late  law  existing   in 
Americs,  considers   marriage  in  no  other  light  than  as  a  civil 
contraot;. "     He  goes  on  to  explain,  that  wherever  particular  forms 
are  not    required  by  positive  statute,  a  complete  marriage  is  con- 
stituted by  the  consent  of  the  parties.     There  can  be  no  doubt  that 
this    \ri^w  of  the  common  law  of  England  has  been  constantly 
acted     TJipon   in  every  State  of  the  American  Union;  but  we  are 
Do^   told  that  all  parties  who  have  thus   contracted  the   matri- 
moniaX    tie  have  been  living  together  in  a  state  of  concubinage. 

^^^^f^^  my  Lords,  am  I  not  justified  in  saying  that  the  law  upon 
tms  sixtiject  has  long  been  considered  settled  by  judicial  decision  ? 
it  18  p<:>ssible  that  some  new  discovery  may  have  been  made,  and 
''  ^ll  the  eminent  men  whose  opinions  I  have  cited  may  have 
^   ixi  error.     But  how  is  this  proved?     If  an  express  decision 
agaiust    the  validity  of  such  a  marriage  had  been   dug  out  from 
flome  ol3scure  repository,  I  should  have  paid  little  attention  to  it 
^aiuati  such  a  current  of  authority,  and  I  should  have  treated  it 
*8 1  do  the  opinion  of  Mr.  Justice  Bayley,  cited  at  the  bar,  that 
a  ^^J^iage  in  Ireland  between  dissenters  by  a  dissenting  minister 
vas  Void,  because  it  was  celebrated,  not  in  a  church,  but  in  a 
P^vat^  house.     But  from  the  earliest  times,  with  the  excep- 
tion of  *  FoxcrofVs  and  Del  HeiWs  cases,  hitherto  allowed  [*  779] 
uot,  to  be  law,  there  is  no  decision  discovered  to  show  that 
aiaarriBge  contracted  by  the  parties  with  the  intention  of  instantly 
entering  into  the  state  of  wedlock  is  void,  or  is  not  attended  with 
tne  incident  of  marriage  of  rendering  the  issue  legitimate. 
The  counsel  for  the  prisoner  relied  very  much  upon  the  general 

VOL.  XVII.  —  8 


114  MABRIAGB. 


Ho.  2.  —Beg.  y.  Millia,  10  OL  &  Fin.  779,  780. 


scope  of  the  statutes  respecting  marriage,  as  showing  that  there  can 
be  no  valid  marriage  without  the  intervention  of  a  priest;  and 
there  is  great  reason  to  think  that  this  notion  was  entertained  by 
those  who  framed  the  Irish  statutes  making  it  highly  penal  for 
Boman  Catholic  priests  to  marry  any  except  Boman  Catholics,  and 
to  annul  marriages  celebrated  by  Boman  Catholic  priests  unless 
both  parties  were  Boman  Catholics:  although  it  cannot  be  said 
that  upon  a  contrary  supposition  such  statutes  would  be  nugatory ; 
for,  whatever  the  law  of  the  laud  may  be,  there  are  few  who 
would  enter  into  the  conjugal  state  without  the  nuptial  benediction 
from  a  priest;  and  the  nullifying  enactment  would  avoid  the 
marriage  unlawfully  celebrated  by  a  Catholic  priest,  even  if  at 
common  law  the  parties  might  have  contracted  a  valid  marriage 
without  any  priest,  Catholic  or  Protestant. 

The  statutes  respecting  precontracts  per  verba  de  prcesenti  do 
not  seem  to  me  by  any  means  to  show  that  there  may  not  be 
ipsum  matrimonium  without  the  intervention  of  a  priest;  for  I 
have  already  attempted  to  explain  that  there  may  be  a  contract  per 
verba  de  prcesenti  which  is  not  ipsum  matrimonium,  if  the  parties 
consider  it  executory,  and  do  not  mean  to  live  together  as  man 
and  wife  till  their  marriage  shall  be  subsequently  solemnised  in 
the  face  of  the  church.  Contracts  per  verba  de  prmsenti, 
[♦780]  subsequente  copuld,  *are  exempted  from  the  operation  of 
the  Acts,  because  cohabitation  is  supposed  to  be  proof 
that  they  meant  to  contract  present  marriage,  and  persons  who 
have  so  contracted  are  treated  as  married.  But  there  is  another 
class  of  statutes,  entirely  overlooked  by  the  Judges,  and  which  in 
my  mind  afford  a  strong  argument  against  the  necessity  of  the 
presence  of  a  priest  apostolically  ordained  to  the  constitution  of  a 
valid  marriage ;  I  allude  to  the  statutes  for  removing  doubts  as  to 
the  validity  of  marriages  where  no  such  priest  was  present.  These 
are  declaratory  Acts. 

By  the  Irish  Act,  2l8t  &  22nd  Geo.  Ill,  c.  25,  marriages  cele- 
brated by  dissenting  ministers  in  Ireland,  between  members  of 
their  own  congregations,  are  declared  to  be  valid.  These  mar- 
riages weie  obviously,  before  the  passing  of  the  Act,  in  the  same 
situation  exactly  as  the  marriage  the  validity  of  which*  we  are 
now  considering.  At  common  law  the  validity  of  a  marriage 
could  in  no  degree  depend  upon  the  religious  profession  of  the 
parties.     By  the  Act  of  the  Imperial  Parliament,  58th  Geo.  III. , 


B.  C.  VOL.  XVII.]  MARRIAGE.  115 

Ho.  8.  ~Beg.  y.  KUlii,  10  Gl.  &  Fm.  780,  781. 

c.  8^4,  marriages  solemnised  by  Presbyterian  ministers  in  the  East 
Xndies  are  declared  to  be  valid;  the  law  of  marriage  being  the 
saxme  in  the  East  Indies  as  in  Ireland.  Further,  by  the  Imperial 
Act,  4th  Geo.  IV.,  c.  91,  marriages  in  a  foreign  country  cele- 
bj-3.t;ed  by  any  chaplain,  or  by  any  officer  or  other  person  appointed 
by  "the  commander-in-chief,  are  declared  to  be  valid.  The  com- 
nikoxx  law  of  England  with  respect  to  marriage  prevails  within  the 
lines  of  the  English  army  abroad,  and  here  you  have  a  parlia- 
mentaiy  declaration  that  according  to  the  common  law  of  England, 
a  naarriage  by  a  layman  was  valid.  I  have  always  understood 
tbati  although  a  statute  in  form  enactive  is  not  neces- 
sari  ly  to  be  taken  as  introductory  of  a  new  law,  a  *  declara-  [*  781] 
torjr  law  is  a  positive  announcement  by  the  Legislature 
tbat  the  law  declared  existed  before  the  passing  of  the  statute,  and 
sb3,U  have  a  retrospective  operation,  and  shall  guide  the  decision 
0^  either  cases  similarly  circumstanced  as  the  case  the  law  of 
wTnicsli  is  declared.  These  declaratory  statutes  were  cited  at  the 
bar-,  but  they  are  not  noticed  by  the  Lord  Chief  Justice  Tindal  ; 
a^cl  it  would  have  been  satisfactory  to  have  known  how  they  were 
vieA?v'ed  by  the  Judges  who,  "  after  considerable  fluctuation  and 
doxii^t,  acceded  to  the  opinion  of  the  majority. " 

T'laere  is  another  Act  of  Parliament  on  this  subject,  which  I 
^^^Ocil)ly  think  is  entitled  to  some  consideration.  By  32nd  Geo. 
^Q^-  ,.  c  21  (Irish),  Protestant  dissenting  ministers  may  publish 
^^^^^xxs  between  a  Protestant  dissenter  and  a  Eoman  Catholic,  and 
^^^x-y  them,  but  are  prohibited  from  celebrating  marriage  between 
*  Iceman  Catholic  and  a  member  of  the  Established  Protestant 
^^^^xtjh;  affording  an  inference  that  a  marriage  by  a  dissenting 
°^^^=».i8ter,  like  a  marriage  by  a  Roman  Catholic  priest,  would  be 
^^licj  where  not  forbidden  by  the  Legislature. 

-^^^uch  reliance  has  been  placed  on  the  statement  that  actions 

^^   treach  of  promise  of  marriage  have  been  maintained  in  Ireland 

^*^^xe  there  had  been  a  copula  after  the  promise;  and  actions  for 

^^^'^ction  after  a  promise  to  marry,  the  daughter  being  called  as 

^  "^^^itness ;  which  it  is  said  would  be,  upon  the  doctrine  contended 

^*^^    ly  the  Crown,  instances  of  a  wife  being  permitted  to  sue  her 

^^u^band,  and  to  give  evidence  against  him  in  a  Court  of  justice. 

^^ti,  in  countries  where    the   canon  law    certainly  prevails,   it 

^^^8  not  follow  that  in  every  case  marriage  is  necessarily  con- 

V^vtuted  by  a  copula  following  a  promise  to  marry.     To  constitute 


116  MARRIAGE. 


Ko.  2.  —Beg.  y.  ICiIlii,  10  CL  &  Fin.  788,  788. 


[*782]  such  a  marriage  there  *must  first  be  mutual  promises 
solemnly  and  sincerely  entered  into,  and  then  there  must 
be  a  copula  while  these  promises  remain  unreleased  and  in  force. 
Now  the  mere  words  indicating  an  intention  to  marry,  used  in 
the  course  of  soliciting  chastity,  not  understood  to  be  serious, 
however  culpable  they  may  be,  cannot  be  construed  into  a  binding 
contract  to  marry ;  and  regard  must  be  had  to  the  circumstances 
under  which  the  copula  takes  place;  for  if  the  woman  in  sur- 
rendering her  person  is  conscious  that  she  is  committing  an  act  of 
fornication  instead  of  consummating  her  marriage,  the  copula 
cannot  be  connected  with  any  previous  promise  that  has  been 
made,  and  marriage  is  not  thereby  constituted.  In  examining  all 
contracts  you  must  look  to  the  intention  of  the  contracting  parties, 
and  there  can  be  no  binding  contract  without  the  parties  intend- 
ing to  enter  into  it.  In  the  cases  referred  to,  it  would  probably 
be  found  that,  according  to  the  intention  of  the  parties,  the  copula 
was  not  in  performance  of  the  promise;  and  that,  if  the  female 
gave  any  credit  to  the  promise,  she  did  not  think  of  then  being 
made  a  wife,  and  still  treated  the  promise  as  executory,  to  be 
performed  at  a  future  time  by  a  marriage  ceremoDy.  It  may  well 
be  admitted  that  in  Ireland  marriage  was  not  usually  constituted 
by  such  means,  for  it  was  not  in  the  contemplation  of  the  parties 
so  to  constitute  it ;  but  this  will  by  no  means  show  that  marriage 
was  not  constituted  by  a  ceremony  which  the  parties  intended  and 
believed  to  constitute  marriage,  and  after  which  they  lived 
together  as  man  and  wife. 

Then  it  is  said  that  the  Statute  of  Merton  shows  that  the  canon 
law  respecting  matrimony  was  never  admitted  into  England. 
The  Statute  of  Merton  does  not  relate  to  the  subject  we 
[*  783]  are  discussing ;  it  settles  *  only  who  are  to  be  legitimate, 
and  determines  that  none  shall  be  legitimate  who  are  not 
bom  after  the  marriage  of  their  parents ;  but  it  leaves  the  question 
of  marriage  untouched,  and  there  is  no  inconsistency  in  supposing 
that  marriage  may  be  contracted  according  to  the  rules  of  the 
canon  law,  although  the  marriage  of  the  parents  after  the  birth  of 
children  may  not  render  them  legitimate.  As  a  reductio  ad 
ahsurdum,  this  case  is  put :  "  A.  made  a  contract  of  marriage  per 
verba  de  prcesevti  with  B. ,  and  then  in  the  lifetime  of  B.  man'ies 
C.  in  facie  ecclesice,  and  has  children  at  the  same  time  both  by  C. 
and  B.  ;  B.  dies.     Are  the  issues  of  both  legitimate  ?  "     I  have  no 


K  C.  YOL.  XVU.]  MARRIAGE.  117 

Ho.  2.  —Beg.  y.  mUis,  10  CL  &  Fin.  788,  784. 

di^fficulty  in  answering  this  question.  If  A.  and  B.  by  their  con- 
trsu^t,  meant  to  enter  into  instant  marriage,  and  to  live  together  as 
man.  and  wife  without  waiting  for  any  other  ceremony,  the  issue 
of  JB.  are  legitimate,  and  the  issue  of  C.  are  bastards.  On  the 
ot^Iik^T  hand,  if  A.  and  B.,  though  using  words  d^  prcesenti,  did 
not;  :inean  to  become  complete  man  and  wife  till  a  subsequent  cere- 
nxoxi J  should  be  performed,  and  they  afterwards  came  together 
w-itlxout  thereby  meaning  to  consummate  a  marriage,  a  possible 
tlio-ugh  not  a  probable  supposition,  their  engagement  resting 
i^ex^ely  in  contract,  and  B.  dying  before  a  marriage  was  solem- 
iiis^d,  the  issue  of  C.  would  be  legitimate :  but  no  case  is  to  be 
foixxid  in  the  books  in  which  issue  of  parties  who  have  contracted 
p^'^  verba  de  prcesenti  have  been  held  illegitimate;  indeed,  in 
^ixiost  all  those  cases,  I  believe  it  will  be  found  that  the  parties 
^e^r^i  came  together,  and  never  meant  to  come  together  as  man 
*^^  wife,  so  that  issue  never  appeared.  It  is  easy  to  conceive 
I'^^^ti  parties  might  contract  per  verba  de  prcesenti,  without  meaning 
^^sti^mtly  to  become  man  and  wife.     Such  an  engagement 

"^^M  irrevocable ;  but  there  might  well  be  an  irrevocable  [*  784] 
^"^S^Lgement,  although  it  was  at  the  same  time  only  execu- 
'^^"-y^*     The  distinction  I  have  taken  solves  with  equal  facility  the 
^^^^   put,  "  suppose  two  sons  bom  at  the  same  time,  one  from  each 
"*o  tiler,  which  is  the  eldest  son  and  heir  ? " 

^^'iit  these  diflSculties  are  trifling  compared  to  the  difficulties  to 

*^     Encountered  on  the  supposition   that,  by   the   common   law, 

^^^**^iage  could  not  be  possibly  constituted  without  the  interven- 

^^^^^    of  a  priest  episcopally  ordained.     What  if  the  person  who 

^^^^iates  as  a  priest,  and  is  believed  by  the  parties  to  be  so,  is  no 

P^^^^t,  and  has  never  received  orders  of  any  kind  ?    This  question 

^^s    suggested  during  the  argument,  but  is  not  met  by  the  Judges. 

.   ^-      Pemberton  admitted  at  the  bar,  as  according  to  the  authori- 

1^^^    le  was  bound  to  do,  that  the  marriage  would  be  valid.     Lord 

"^^^AiVELL  repeatedly  expressed  his  opinion   to  this  effect;  and  it 

^"^^s  out  that  in   the  instance  of  a  pseudo  parson,   who   about 

"^^^nty  years  ago  officiated  as  curate  of  St  Martin 's-in-the-Fields, 

^^   during  that  time  married  many  couples,  upon  the  discovery 

^^  l^is  being  an  impostor,  which  became  a  matter  of  great  notoriety, 

^^    Act  of  Parliament  passed  to  give  validity  to  the  marriages 

"^Mch  he  had  solemnised ;  which  could  only  have  arisen  from  the 

government  of  the  day  being  convinced,  after  the  best  advice,  that 

IB  themselves  they  were  valid. 


118  MABRIAGE. 


Ho.  2.  —Beg.  y.  KiUii,  10  a  &r  Fin.  784-786. 


Indeed,  that  parties  who  have  vowed  eternal  fidelity  at  the 
altar,  and^  having  gone  through  all  the  forms  which  the  Church 
and  the  State  prescribe,  have  received  the  nuptial  benediction  from 
one  whom  they  have  every  reason  to  believe  was  commissioned  to 

pronounce  it  by  a  successor  of  the  holy  Apostles,  should 
[*  785]  run  the  risk  of  finding  that  some  years  after,  *  from  the 

rector  of  the  parish  being  imposed  upon  by  a  layman  pre- 
tending to  be  a  priest  duly  ordained,  they  are  living  in  a  state  of 
concubinage  and  that  their  children  are  bastards,  —  is  a  supposi- 
tion so  monstrous  that  no  one  has  ventured  to  lay  down  for  law 
a  doctrine  which  would  lead  to  such  consequences.  But  what 
becomes  of  the  doctrine  of  the  necessity  of  a  priest  in  apostolical 
orders,  to  the  validity  of  marriage  ?  The  proposition  must  now  be 
changed,  that  there  must  be  present  one  believed  by  the  parties  to 
be  a  priest  in  apostolical  orders ;  and  a  marriage  by  a  layman  may 
be  good.  There  is  a  good  marriage  by  a  layman  from  the  mistake, 
of  the  parties,  who  thought  that  he  was  a  priest  with  power  to 
marry  them.  Does  it  not  seem  strange  that  at  the  same  time  a 
marriage  should  be  void  celebrated  by  a  clergyman  who  is  actually 
in  Presbyterian  orders,  having  been  solemnly  ordained  by  the 
imposition  of  hands  according  to  the  rites  of  his  church,  and  who 
is  believed  by  the  parties  to  have  sufficient  authority  by  the  law 
of  God  and  man  to  join  them  in  wedlock  ? 

Here  I  must  observe  how  little  weight  is  to  be  given  to  what 
was  gravely  relied  upon  at  the  bar,  the  prevailing  belief  among 
mankind  of  the  necessity  of  the  presence  of  a  priest  at  a  valid  mar- 
riage, as  evinced  by  novelists  and  dramatists :  for  it  will  be  found 
that  these  expounders  of  the  law  always  make  a  marriage  by  a 
sham  parson  void,  contrary  to  the  opinion  of  Lord  Stowell  and 
the  canonists ;  and  they  give  validity  to  marriages  in  masquerade, 
where  the  parties  were  entirely  mistaken  as  to  the  persons  with 
whom  they  are  united;  marriages  which  would  hardly  be  sup- 
ported in  the  Ecclesiastical  Court,  in  a  suit  of  jactitation,  or  for 

restitution  of  conjugal  rights. 
[*  786]       There  is  another  case,  not  met  by  the  learned  *  Judges, 

which  essentially  breaks  in  upon  the  rule  they  have  laid 
down.  It  has  been  repeatedly  held,  and  there  can  be  no  doubt 
that  such  is  the  law,  that  in  circumstances  where  it  is  utterly 
impossible  to  procure  the  presence  of  a  priest,  there  may  be  a  valid 
marriage  by  the  consent  of  the  parties.     Lord  Stowell  has  re- 


^  C  VOL.  XVII.]  MARRIAGE.  1 19 

Ko.  2.  —  Beg.  ▼.  MiUis,  10  a  &  Fin.  786,  787. 

ferred  to  the  marriage  between  the  first  parents  of  mankind ;  and 
looking  to  a  more  modern  case,  which  would  be  determined  by 
thQ  common  law  of  England,  I  presume  the  learned  Judges  would 
not  doubt  that,  in  the  recent  settlement  of  Pitcairn's  Island,  the 
descendants  of  the  mutineers  of  the  "  Bounty  "  might  lawfully  have 
contracted  marriage  before  they  had  been  visited  by  a  clergyman 
in  episcopal   orders.     The   necessity  for  the  presence  of  such  a 
cleigyman  must  be  qualified  with  the  condition  that  his  attend- 
ance may  by  possibility  be  procured.     Again,  the  rule  that  mar- 
"^ge    is  void  unless  celebrated  'per  presbyterum  sacris  ordinibus 
^titutum,  is  broken  in  upon  by  the  admission  that  a  marriage 
w  valid  if  celebrated  by  a  deacon,  who  is  no  more  a  presbyter  than 
the  parish  clerk.     A   deacon   is   in   orders,  but  not  in  priest's 
orders  ;  and  if  the  test  of  marriage  be  the  question  usually  put  by 
toe   temporal   Courts   to  the   bishop,  on   the   plea  of  ne  ungues 
^^^coujpl^  in  loyal  matrimonie,  where  the  marriage  was  celebrated 
^y  a  deacon,  the  answer  must  have  been  in  the  negative ;  so  that 
ne  Widow  would  have  lost  her  dower;  and  upon  a  writ  of  right 
tk   ^^^  ^^^  ^  ^®^''  there  must  have  been  judgment  against  him  on 

®  gi'ound  that  he  was  a  bastard. 
,  "*^he  Judges  seem  to  intimate  that  a  marriage  by  a  deacon  before 
^  -Reformation  would  have  been  bad,  but  that  since  the  Refor- 
fK^   .^^  it  is  valid.    I  should  like  to  know  by  what  au- 
^^rity  the  change  has  been  *  brought  about ;  Lord  Hard-  [*  787] 
^ke's  Act  is  silent  upon  the  subject,  and  Parliament 
^    in  no  shape  interfered.     Has  the  Church  authority  to  make 
^*^    a  change,  with  or  without  the  consent  of  the  Crown;  and 
^8ut  it  now  be  ordained  by  the  convocation  that  marriage  may 
^^  be  celebrated  by  a  deacon,  or  that  it  may  be  celebrated  by  a 
^^iali   clerk  or  a  church  warden?     May   the  law   of  England, 
^^pftcting  a  contract  on  which  such  important  civil  rights  depend, 
^  altered  without  the  authority  of  Parliament?    But  if  such  a 
power  does  be^Dng  to  the  Church,  where  is  the  canon  by  which  it 
was  exercised  ?    All  the  canons  passed  since  the  time  of  Henry 
VIIL  are  extant,  as  much  as  the  Acts  of  Parliament,  and  no  one 
is  to  be  found  alluding  to  such  a  subject     In  the  Book  of  Com- 
mon Prayer  it  is  said  that  a  deacon  may  baptise  in  the  absence  of 
the  priest;  it  is  silent  as  to  his  authority  to  marry,  which  seems 
always  to  have  been  considered  one  of  his  ordinary  functions. 
But  I  will  now  show  that  at  common  law  there  might  have  been 


120  MARRIAGE. 


Ko.  2.  —  Seg.  ▼.  KiUis,  10  a  &  Fin.  787-789. 


a  valid  marriage  by  one  not  even  in  deacon's  orders,  and  where 
no  one  was  deceived,  where  there  was  no  mistake  by  the  partiea 
Till  the  13th  &  14th  Car.  II.,  c.  4,  s.  14,  there  was  no  necessity 
for  the  clerk  presented  by  the  patron  to  a  living  being  in  orders 
of  any  sort,  and  he  had  a  certain  time  after  his  admission  to  be 
ordained.  There  is  an  important  case  upon  this  point,  not  hith- 
erto cited.  Costard  v.  JVindet,  Cro.  Eliz.  775.  One  who  was  a 
mere  doctor  of  the  civil  law,  and  never  any  spiritual  person,  was 
admitted  to  a  benefice.  Not  having  taken  orders,  he  was  after- 
wards deprived  by  a  sentence  declaratory  quia  mere  laiciis. 
[*  788]  A  question  arose  whether  a  lease  *  granted  by  him  after  his 
admission  was  valid.  Gawdy,  J.,  was  at  first  of  opinion 
that  the  lease  was  void,  because  upon  the  matter  he  was  never  in- 
cumbent; but  Popham  and  Fenner  contra,  "  for  it  would  be  mis- 
chievous if  all  the  acts  by  such  averments  should  be  drawn  in 
question.  And  every  one  agreed  that  all  spiritual  acts,  as  mar- 
riages, &c. ,  by  such  an  one,  during  the  time  that  he  is  parson,  are 
good ; "  and  so,  with  the  assent  of  Gawdy,  they  resolved  to 
adjudge  it 

I  must  likewise  observe  that  there  might  have  been  great  difl&- 
culty  in  determining  what  kind  of  priest  is  a  good  priest  to  cele- 
brate a  marriage ;  the  test  being,  not  whether  he  be  a  clergyman 
of  the  Established  Church,  but  whether  he  has  been  ordained  by  a 
bishop.  Is  a  priest  of  the  Greek  Church  sufficient?  or  of  the 
Christian  Church  of  Abyssinia?  or  of  the  Lutheran  Church,  which 
maintains  episcopacy  in  Denmark  and  Sweden,  while  in  other 
countries  it  is  governed  by  a  consistory  of  ecclesiastics,  by  whom 
orders  are  conferred  ?  Upon  a  question  of  the  validity  of  a  mar- 
riage by  a  priest  of  a  foreign  church,  by  whom  and  on  what  prin- 
ciple, between  the  time  of  the  Reformation  and  the  passing  of 
Lord  Hardwicke's  Act,  would  the  sufficiency  of  his  orders  have 
been  tried?  Before  the  Reformation  there  would  have  been  no 
difficulty,  for  the  only  orders  recognised  would  have  been  those  of 
the  Church  of  Rome;  but  that  test  cannot  now  be  applied,  as  a 
priest  ordained  by  an  English  Protestant  bishop  would  not  be 
competent,  for  there  is  no  reciprocity  between  the  Church  of 
Rome  and  the  Church  of  England  on  this  subject;  as  English 
episcopalian  orders  are  not  recognised  by  the  Church  of  Rome,  and 
a  clergyman  of  the  Church  of  England  conforming  to  the 
[*  789]  Church  of  Rome  must  be  reordained  by  a  Roman  *  Catho- 


B.  C.  VOL.  XVII.J  MARRIAGE.  121 

Ko.  2.  ~Beg.  ▼.  XilliB,  10  CI.  &  Fin.  789,  790. 

lie  bishop.      Although  now   no  orders  are  recognised  by   the 
Church  of  England  except  those  conferred  by  a  bishop,  there 
seems  for  some  time  after  the  Keformation  to  have  been  consider- 
able laxity  upon  this  subject     It  would  appear  that  clergymen 
ordained  by  foreign   churches  which  had  laid  aside  episcopacy, 
were  admitted  into  English  benefices  without  being  reordained. 
Dr.  Whittingham,  who  had  been  ordained  by  the  Swiss  clergy, 
and  never  by  a  bishop,  was  appointed  Dean  of  Durham,  and  held 
the   office  many  years,  till  he   died.     Archbishop  Grindall,  in 
^5S2,  issued  a  license  to  Mr.  John  Morrison,  stating  that  as  he 
^ad    been  ordained  to  sacred  orders  and  the  holy  ministry  five 
7^Ts  before,  in  the  kingdom  of  Scotland,  by  the  imposition  of 
^ands,  according  to  the  laudable  forms  and  rites  of  the  Bef ormed 
^^urch  of  Scotland,  *  We,  therefore,  as  much  as  in  us  lies  and  as 
J  ^ight  we  may,  approving  and  ratifying  the  form  of  your  ordina- 
tion as  aforesaid,  grant  unto  you  a  license  and  faculty  that  in  such 
owers  by  you  taken,  you  may  have  power,  throughout  the  whole 
province  of  Canterbury,  to  celebrate  divine  offices,  to  minister  the 
sacraments, "  &c.     Would  a  marriage  celebrated  by  Dr.  Whitting- 
nam  or  by  Mr.  Morrison,  in  the  reign  of  Elizabeth,  have  been  held 
void  ? 

^^    is  remarkable  that  in  the  Act  of  Uniformity  (section  15) 
tneTe    is  a  provision  "  that  the  Penalties  in  this  Act  shall  not 
exteii^   to  the   Foreigners   or  Aliens   of  the  Foreign  Keformed 
.  ^*^hes,  allowed  or  to  be  allowed  by  the  King's  Majesty,  his 
«ii^    or  successors,  in  England."     Suppose  that  Charles  II.  had 
ftllM\?^j^   as   he   might  have  done,    clergymen  of  the  church  of 
Qi^Ti^va  to  officiate  in  England,  would  marriages  by  them  have 
Y^efl  void  because  they  had  not  been  episcopally  ordained  ? 
Such  clergymen  could  *  not  have  been  recognised  as  priests  [*  790] 
when  the  common  law  took  its  origin ;  nor  any  clergy  not 
allowed  by  the  Pope. 

The  question  again  arises,  by  what  authority  a  new  class  of 
persons,  viz.,  Protestant  clergymen,  disclaimed  by  the  Pope,  are 
permitted  to  celebrate  a  valid  marriage,  who  could  not  have  done 
80  at  the  common  law,  and  there  having  been  no  statute  to  alter 
the  law  upon  the  subject  ?  Is  not  the  solution  of  the  difficulty 
this,  that  at  the  common  law  the  interposition  of  a  priest  was  not 
necessary  to  the  validity  of  the  marriage  for  civil  purposes, 
although  the  church,  treating  marriage  as  a  sacrament,  from  time 


122  MAliBIAGE. 


Ko.  2.  —  Seg.  Y.  Xillis,  10  CI.  &  Fin.  790,  791. 


to  time  varied  the  forms  which  it  declared  necessary  to  constitute 
a  regular  marriage  such  as  the  church  would  entirely  approve  ? 

I  now  come  to  a  difl&culty  met,  I  confess,  boldly  by  the  Judges ; 
the  consideration  of  the  marriages  of  Quakers,  which  we  are  now 
told  are  all  invalid,  because  not  contracted  before  a  priest  episco- 
pally  ordained.  I  admit  that  this  consequence  follows  inevitably 
from  the  doctrine  contended  for,  and  that  the  validity  of  these 
marriages  is  a  complete  test  of  that  doctrine.  They  are  left  by 
Lord  Hardwicke's  Act  as  they  were  at  common  law;  and  they 
cannot  be  good  at  common  law,  if  the  presence  of  a  priest  episco- 
pally  ordained  was  necessary  to  the  validity  of  marriage.  I  must 
observe,  with  great  deference  to  my  noble  and  learned  friend,  Lord 
Abinger,  who  had  left  the  House,  that  it  never  has  been  thought 
till  to-day  that  that  Act  gave  any  validity  to  Quakers*  marriages, 
which  Quakers'  marriages  had  not  at  common  law;  for  it  merely 
excepts  those  marriages  from  the  operation  of  the  Act,  and  leaves 
them  as  it  found   them.     I  will  by  and  by  cite  the   clause;  it 

treats  them  exactly  like  marriages  in  Scotland. 
[*  791]  *  The  Lord  Chancellor.  —  What  I  understood  the  noble 
and  learned  Lord  to  state  was  to  adopt  in  substance  the 
statement  of  the  Chief  Justice,  who  says,  "  Since  the  passing  of 
the  Marriage  Act  it  has  generally  been  supposed  that  the  ex- 
ception contained  therein  as  to  the  marriages  of  Quakers  and 
Jews,  amounted  to  a  tacit  acknowledgment  by  the  Legislature, 
that  a  marriage  solemnised  with  the  religious  ceremonies  which 
they  were  respectively  known  to  adopt,  ought  to  be  considered 
sufl&cient ;  but  before  the  passing  of  that  Act,  when  the  question 
was  left  perfectly  open,  we  find  no  case  in  which  it  has  been  held 
that  a  marriage  between  Quakers  was  a  legal  marriage  on  the 
ground  that  it  was  a  marriage  by  a  contract  'per  verba  de  prcesentiy 
but,  on  the  contrary,  the  inference  is  strong  that  they  were  never 
considered  legal. " 

Lord  Campbell.  —  That  is  exactly  as  I  view  it;  that  it  is  a 
tacit  acknowledgment  that  the  marriages  were  valid. 

The  Lord  Chancellor.  —  I  do  not  think  that  my  noble  and 
leaned  friend  meant  to  say  more  than  merely  to  adopt  that  state- 
ment. If  he  were  present  I  should  leave  him  to  speak  for  himself, 
but  that  is  the  way  I  understood  it 

Lord  Campbell.  —  He  seemed  to  draw  a  line  of  distinction 
between  Quaker  marriages  before  Lord  Hardwicke's  Marriage 
Act,  and  since. 


^  C.  VOL  xvil]  mabriagb.  123 

Ho.  2.  — Beg.  T.  Millii,  10  OL  &  Fin.  791-708. 

-iord  Brougham. —  So  I  understood  it 

J[x>rd  Campbell.  —  But  is  not  the  18th  section  of  26th  Geo.  IL, 
c  33,   a  legislative  declaration  that  such  maniages,  if  contracted 
so  tlistt  the  parties  intended  they  should  constitute  the  relation  of 
husband  and  wife,  were  valid  before  the  Act  passed,  and 
should  *  continue  valid  ?    The  words  are,  **  That  nothing  [*  792] 
in  til  is  Act  contained  shall  extend  to  that  part  of  Great 
Bdtaiu  called  Scotland,  nor  to  any  marriages  amongst  the  people 
callecl  Quakers,  or  amongst  the  persons  professing  the  Jewish  re- 
ligion, where  both  the  parties  to  any  such  marriage  shall  be  of 
the  people  called  Quakers,  or  persons  professing  the  Jewish  re- 
ligion,  respectively,  nor  to  any  marriage  solemnised  beyond  the 
seas.  *     Marriages  were  valid  in  Scotland   before  the  passing  of 
the  Act  without  the  intervention  of  a  priest  in  orders,  and  so  they 
were  to  continue. 

The  sect  of  Quakers  had  existed  in  England  for  one  hundred 
and  fifty  years  before  the   Marriage  Act  passed.     They  did  not 
recognise  any  order  of  priesthood,  and  they  had  contracted  mar- 
xiagG  by  a  ceremony  which  took  place  only  among  members  of 
tb^Vt  own  persuasion.     They  would  have  considered  it  sinful  to 
\ifc  mfurried  in  a  church,  or  to  have  been  united  by  a  clergyman. 
'They  would  have  submitted  to  any  penalty  or  punishment,  rather 
than  submit   to  the   ceremony   of    marriage  prescribed    by   the 
Church  of  England.     They  could  not  be  brought  under  the  opera- 
tion of  the  new  Act     What  was  the  intention  of  the  Legislature 
respecting  their  past  and  future  condition?     Was  it  meant  that 
they  should  be  considered  as  then  all  living  in  concubinage,  their 
children  being  all  illegitimate ;  and  that  they  should  be  incapable 
of  entering  into  lawful  wedlock  in  all  time  to  come  ?    If  there 
had  been  then  any  grave  doubt  as  to  the  validity  of  their  marriages 
entered  into  according  to  their  own  forms,  would  there  not  have 
been  an  enactment  giving  validity  to  such  marriages  ?    As  to  the 
taking  of  oaths  in  Courts  of  justice,  a  matter  of  much  less  conse- 
quence, relief  had  long  before  been  afforded  to  them.     The  statute 
6  &  7  Wm.   III.,  c.  6,  when  properly  examined,  I  think 
*  furnishes  strong  evidence  to  show  that  these  were  legal  [*  793] 
marriages.     The  Act  is  "  for  granting  to  his  Majesty  cer- 
tain rates   and    duties    upon    marriages,    births,    and    burials." 
Quakers  marrying  are   expressly  subjected  to  the  duty.     In  one 
place  the  marriage  between  them  is  called  a  pretended  marriage ; 


124  MARRIAGE. 


Ko.  2.  —  Beg.  ▼.  KiUis,  10  a  &  Fin.  798,  794. 


but  by  this  uncivil  expression  was  it  intended  to  declare  that  the 
marriage  was  void,  and  to  levy  a  tax  upon  concubinage  ?  On  the 
contrary,  it  is  declared  that  "  any  such  marriage  or  pretended 
marriage  shall  be  of  the  same  force  and  nature  as  if  the  Act  had 
not  been  made. '  The  tax  is  imposed  on  any  other  persons  who 
should  cohabit  and  live  together  as  man  and  wife;  —  affording 
a  strong  evidence  that  marriage  was  then  constituted  by  cohabi- 
tation and  living  together  as  man  and  wife. 

In  1661,  a  marriage  between  Quakers  according  to  their  own 
ceremonies,  was  held  valid  at  Nisi  Frius  in  an  action  of  ejectment, 
and  the  ruling  appears  to  have  been  acquiesced  in  (1  Hagg.  Cons. 
Kep.  App.  9.).  The  casual  doubt  imputed  to  Lord  Hale,  when 
he  directed  a  case  to  be  made  as  to  the  validity  of  a  Quaker 
marriage,  can  be  entitled  to  no  weight 

Since  the  Marriage  Act,  in  1753,  down  to  the  present  day, 
Quakers,  many  of  them  men  not  only  of  great  wealth  but  highly 
educated,  not  only  distinguished  for  literature  and  science,  but 
eminent  lawyers,  and  ladies,  not  only  of  the  strictest  virtue  and 
the  most  refined  delicacy,  but  of  the  most  brilliant  talents  and 
accomplishments,  have  contracted  marriage  according  to  the  forms 
of  their  religion,  without  the  most  distant  suspicion  that  in  doing 
so  they  were  violating  the  law  of  God  or  of  man.  I  confess  I 
should  like  to  know  whether  all  the  Judges  who  have  concurred 
in  the  opinion  that  a  marriage  is  void  by  the  common 
[*  794]  *  law  if  not  celebrated  in  the  presence  of  a  priest  in  epis- 
copal orders,  are  of  opinion  that  all  Quakers,  male  and 
female,  cohabiting  as  man  and  wife,  are  living  in  a  state  of  con- 
cubinage, and  that  all  the  children  of  all  Quakers  are  illegiti- 
mate? 

Till  this  controversy  began  by  a  note  of  the  editor  of  a  new 
edition  of  an  obscure  law  book,  I  believe  that  the  validity  of  the 
marriage  of  Quakers  had  not  been  questioned.  Quakers  have 
maintained  actions  for  criminal  conversation,  where  direct  proof 
of  a  valid  marriage  is  to  be  given.  Dean  v.  Thomas,  1  Moo. 
&  M.  361;  Harford  v.  Morris,  1  Hagg.  Cons.  Eep.  App.  9. 
Widowers  and  widows,  being  Quakers,  and  the  children  of 
Quakers,  have  received  administration  in  the  Ecclesiastical 
Courts,  and  in  cases  of  intestacy  have  succeeded  to  personal 
property  according  to  the  Statute  of  Distributions.  In  tracing 
a  title  to  real  property,  no  objection  has  ever  been  made  on  the 


B.  a  VOL  XVII.]  MARBIAGE.  125 

Ho.  2.  —  Beg.  Y.  Killii,  10  CI.  &  Fin.  794^  796. 

ground  that  it  had  been  in  a  Quaker  family^  and  no  doubt  has 
existed  that  the  eldest  son  of  a  Quaker  marriage  would  take 
by  descent  lands  of  which  his  father  died  seised  in  fee  simple. 
I  cannot  help  thinking  that  such  a  general  understanding  and 
sach  along  course  of  acting  greatly  outweigh  any  nice  scruples 
that  may  now  be  raised  upon  the  subject 

Most  of  these   observations   apply,  if   possible,    with  greater 
strength  respecting  the  marriages  of  Jews.     It  was  utterly  impos- 
sible that  Jews  ever  could  have  been  married  by  the  intervention 
of  a   Christian  priest.     In  every  country   where   they  have  in- 
habited, they  have  been  allowed  to  marry  according  to  their  own 
rites  and  ceremonies,  and  marriages  so  contracted  have  been 
held  valid.    Jews  were  banished  from  this  *  country  from    [*  795] 
the  time  of  Edward  I  till  the  time  of  Oliver  Cromwell ; 
but   then  they  were  permitted  to  settle,  and  they  did  settle,  in 
England  in    considerable    numbers.     They  have    married    here 
according  to  their  own  rites  and  ceremonies,  and  their  marriages 
80  Contracted  have  undoubtedly  been  considered  valid.     Did  the 
^iage  Act  mean  again  to  banish  them  from   England,  or  to 
^^^^tit  them  from  entering  into  the  married  state?    It  is   said 
^iei7  were  considered  as  foreigners.     There  can  be  no  doubt  that 
when  born  in  England,  they  are  in  all  respects  British  subjects. 
But  suppose  they  were  aliens :  aliens  can  only  contract  marriage 
in  England  according  to  the  law  of  England ;  and  if  by  that  law 
the  presence  of  a  priest  episcopally  ordained  were  necessary  to  the 
due  constitution  of  marriage,  without  the  presence  of  such  a  priest 
marriage  could  not  be  lawfully  constituted  between  any  aliens  in 
England.     Therefore,  the  moment  it  is  allowed  that  in  England  a 
marriage  contracted  by  Jews  according  to  their  own  rites  and  cere- 
monies is  valid,  the  doctrine  is  gone  that  by  the  common  law  the 
presence  of  a  priest  episcopally  ordained  was  necessary  to  the  due 
constitution  of  marriage.     Although   the  Lord   CfflEF    Justice 
intimates  his  opinion  that  Quaker  marriages  are  void,  he  does  not 
say  the  same  of  the  marriages  of  Jews ;  and  I  think  it  is  impos- 
sible that  he  should,  after  the  express  decisions  on  the  subject. 

There  is  the  case  of  Andreas  v.  Andreas  in  the  Consistory 
Court  in  1737,  before  Dr.  Henchman.  That  was  a  suit  by  a  wife 
against  her  husband,  for  the  restitution  of  conjugal  rights.  The 
parties  were  both  Jews,  and  the  libel  alleged  that  they  were 
married  according  to  the  forms  of  the  Jewish  nation.     Objection 


126  MABRIAGB. 


Vo.  8.  —Bag.  T.  Mfllii,  10  a  &  Fin.  70fr-797. 


was  made  that  as   they  had    not  been   married    by  a 
[*  796]  *  priest  in  orders,  the  marriage  was  void,  and  the  Court 

could  take  no  notice  of  it  The  Court  was  of  opinion, 
however,  that  as  the  parties  had  contracted  such  a  marriage  as 
would  bind  them  according  to  the  Jewish  forms,  the  woman  was 
entitled  to  a  remedy,  and  tliat  the  proceeding  would  well  lie,  and 
admitted  the  libel.  Again,  in  the  case  of  Vtgevena  v.  Alvarez^ 
1  Hagg.  Cons.  Rep.  App.  7,  in  the  Prerogative  Court  in  1794, 
before  Sir  William  Wynne,  the  libel  pleaded  a  marriage  between 
Jews,  according  to  the  rites  and  ceremonies  of  the  Jewish  religion. 
It  was  objected  that  the  libel  was  bad  upon  the  face  of  it,  and 
ought  to  be  rejected ;  for  that  persons  coming  before  the  Ecclesias- 
tical Court  to  claim  any  right  by  marriage,  must  show  the  mar- 
riage to  have  been  according  to  the  rites  and  ceremonies  of  the 
Church  Christian:  for  which  Haydon  v.  Ootdd  was  cited.  Sir 
W.  Wynne  said,  that  if  a  Jew  were  called  upon  to  prove  his  mar- 
riage, the  mode  of  proof  must  have  been  conformable  to  the  Jewish 
rites ;  particularly  since  the  Marriage  Act  which  lays  down  the 
law  of  this  country  as  to  marriages,  with  an  exception  for  Jews 
and  Quakers.  That  is  a  solemn  adjudication  upon  the  validity  of 
such  marriages.  Here  the  allegation  being  that  the  parties  were 
married  according  to  the  rites  of  the  Jewish  Church,  the  Court 
thought  that  the  libel  ought  to  be  admitted ;  as  if  the  allegation 
was  proved,  a  valid  marriage  was  constituted.  In  Lindo  v. 
Belisario,  1  Hagg.  Cons.  Eep.  216,  and  App.  7,  which  first  came 
before  Sir  W.  Scott  in  the  Consistory  Court  of  London,  and  then 
before  Sir  W.  Wynne  in  the  Court  of  Arches,  a  Jewish  marriage 
was   set  aside  because  the  ceremonies  prescribed  by  the  Jewish 

law  had  not  been  duly  observed,  although  words  amount- 
[•  797]  ing  to  a  contract  per  verba  deprcesenti  *  had  passed  between 

the  parties;  but  if  those  ceremonies  had  been  duly 
observed,  the  marriage  would  unquestionably  have  been  held  valid, 
although  no  Christian  priest  was  present  at  it  Lindo  v.  Belisario 
was  cited  to  show  that  even  among  the  Jews,  mere  verba  jde 
prcRsenti  will  not  make  marriage  without  the  religious  ceremony. 
This  only  illustrates  what  I  have  tried  to  explain,  that  the  con- 
tract per  verba  de  pra^senti  only  constitutes  marriage  when  the 
parties  intend  that  it  should  do  so  without  any  subsequent  cere- 
mony ;  but  that  when  a  subsequent  ceremony  is  necessary  to  the 
completion  of  the  marriage,  the  verba  dc  prcesenti  only  operate  as 
an  executory  contract 


K.  c.  VOL.  xvil]  marriage.  127 

Vo.  8.  —  Beg.  ▼.  Millii,  10  CI.  6u  Fin.  797,  798. 

I  ought  to  observe  that  the  language  of  the  Legislature  in  6  &  7 
Win.   rV.,  c.   85,  s.   2,  regulating  the  marriage  of  Quakers  and 
Jews  in  future,  is,  in  my  opinion,  very  strong  to  show  that  their 
past  marriages  were  valid :  **  That  the  Society  of  Friends,  com- 
monly called  Quakers,  and  also  persons  professing   the   Jewish 
^ligion,  may  continue  to  contract  and  solemnise  marriages,  accord- 
ing   to  the  usages  of  the  said  society  and  of  the  said  persons 
respectively,  and  every  such  marriage  is  hereby  declared  and  con- 
fi^ttiecl  good  in  law, "  &c. ,  *  provided  that  notice  to  the  registrar 
shall    have  been  given,"  &c.     A  new  condition  is  imposed,  and 
that    teing    observed,    the    parties    continuing   to  contract    and 
soletm^ise  marriage   as  before,  every   such  marriage  is  declared 
^^^  Confirmed  good  in  law.     It  comes  to  this,  then,  that  marriages 
^    T^^Ws  and  Quakers,  excepted  from  Lord  Hardwicke*s  Act,  are 
^^  Bt  common  law,  and  prove  that  at  common  law  there  might 
^   Xnarriage  without  the  intervention  of  a  priest  in  episcopal 
Sleets. 

In  some  parts  of  the  Lord  Chief  Justice's  opinion  he 
intimates  that  the  condition  required  for  the  validity  *  of  [*  798] 
a  marriage  is  only  that  there  should  be  a  religious  cere- 
mony performed  on  the  occasion.     However  becoming  and  desir- 
able it  may  be  that  a  relation  of  such  deep  importance  should  be 
contracted  in  the  manner  the  most  solemn  and  impressive,  and 
that  the  blessing  of  Heaven  should  be  invoked  on  those  entering 
into  it,  I  cannot  find  that  any  religious  ceremony  has  been  con- 
sidered necessary  to  its  validity.     But  supposing  the  sound  doc- 
trine  to  be  that  some  religious   ceremony  upon   the  occasion  is 
indispensable,    I    think    it  would    deserve    great    consideration 
whether  the  religious  ceremony  which  the  parties   consider  the 
most  sacred  should  not  be  deemed  sufficient     Before  the  Kefor- 
mation,  when  there  was  a  religious  ceremony,  it  was  celebrated  by 
a  priest  recognised  as  in  orders  by  the  Church  of  Eome,     Since 
the  Reformation,  among  members  of  the  Church  of  England,  it 
has  been  celebrated  by  a  priest  whom  the  Church  of  Rome  would 
consider  a  mere  layman.     Among  Protestant  dissenters  in  England 
down  to  the  Marriage  Act,  and  in  Ireland  down  to  the  present  time, 
the  religious  ceremony  has  been  celebrated  by  a  priest,  not  epis- 
copally  ordained,  but  ordained  by  the  imposition  of  the  hands  of 
those  who  had  been  themselves  so  ordained,  and  whom  they  con- 
aider  duly  commissioned  to  preach  the  gospel  of   Jesus   Christ, 


128  MABItlAGE. 


Vo.  2.  —Beg.  T.  Millii,  10  a  &  Fin.  796-800. 


and  to  administer  the  sacraments  of  His  holy  religion ;  although 
by  the  Church  of  England  he  is  considered  only  as  a  layman. 
The  question  is,  whether  this  priest  might  not  as  effectually  per- 
fonn  the  religious  ceremony  required  by  the  common  law,  as  the 
priest  who  would  have  been  regarded  as  a  layman  by  the  church 
which  was  dominant  when  the  common  law  took  its  origin,  and 

for  many  centuries  after. 
[*  799]  For  these  reasons,  my  Lords,  I  have  arrived  at  *  the  clear 
conclusion  that  the  marriage  between  the  prisoner  and 
Hester  Graham  was  a  valid  marriage.  Had  I  regarded  the  ques- 
tion as  originally  more  doubtful,  I  should  have  thought  it  right  to 
adhere  to  decisions  by  which  the  law  has  been  considered  settled 
for  half  a  century.  On  questions  of  property  it  has  often  been 
said  that  it  is  the  duty  of  a  Judge  to  support  decisions  which 
have  been  some  time  acquiesced  in,  and  which  have  been  acted 
upon,  even  if  he  would  not  have  concurred  in  them  when  they 
were  pronounced ;  lest  titles  should  be  shaken.  Does  not  this  rule 
apply  with  infinitely  greater  force  to  questions  of  status,  and  most 
of  all  to  questions  respecting  marriage,  on  which  the  happiness  of 
individuals  and  the  welfare  of  society  so  essentially  depend? 
Consider  the  consequences  of  now  holding  that  by  the  common 
law  a  valid  marriage  cannot  be  contracted  without  the  presence  of 
a  priest  episcopally  ordained.  I  do  not  suppose  that  as  yet  it  is 
intended  to  impeach  marriages  in  Scotland  on  this  ground,  but 
hundreds  of  thousands  of  marriages  which  have  taken  place  in 
Ireland  since  the  time  of  James  I.,  and  the  validity  of  which  had 
never  been  doubted,  are  now  asserted  to  have  been  null.  In  Eng- 
land, the  marriages  of  all  Quakers  and  Jews,  and  of  all  persons 
who  before  the  Marriage  Act  may  have  been  married  by  Presbyte- 
rian or  other  dissenting  ministers,  are  also  asserted  to  have  been 
null.  And  do  not  let  it  be  supposed  that  the  evil  is  confined  to 
the  members  of  those  sects,  with  whom  there  might  be  less  sym- 
pathy; but  the  members  of  the  Established  Church  may  be 
deprived  of  most  valuable  rights  of  property  by  the  invalidity  of 
such  marriages. 

When  we  consider  our  extensive  colonies  in  every  quarter 
[*  800]  of  the  globe,  where  the  common  law  of  *  England  respect- 
ing marriage  prevails,  the  confusion  and  dismay  will  be 
still  greater.     Vast  numbers  of  marriages  have  been   celebrated 
in  the  East  Indies  and  elsewhere  by  Presbyterian  and  missionary 


B.  C.  VOL.  XVII.]  MARKIAGE.  129 

Vo.  S.  — Beg.  T.  Millis,  10  a  &  Fin.  800-80S. 

ministers  of  various  persuasions,  under  circumstances  in  which  no 
validating  statute  would  apply  to  them ;  and  where  the  attendance 
of  a  minister  of  religion  could  not  be  procured,  many  marriages 
have  taken  place  without  any  scruple  of  the  parties,  or  their 
parents  or  relatives,  before  consuls,  military  ofl&cers,  magistrates, 
and  captains  of  ships.  As  to  the  past,  we  may  resort  to  the 
clumsy  expedient  of  ex  post  facto  legislation,  and  enact  that  all 
those  marriages  shall  be  as  valid  and  effectual  ais  if  they  had  been 
celebrated  by  a  priest  in  episcopal  orders ;  but  what  are  you  to  do 
for  the  future  ?  The  common  law  in  its  wisdom  accommodates 
itself  with  respect  to  marriage  to  the  varying  circumstances  in 
which  the  parties  may  be  placed.  By  statute  you  must  have  rigid 
rules,  to  be  strictly  complied  witL  Such  rules  have  been  wisely 
framed  by  the  last  Marriage  Act  for  England,  which  proceeds  on 
the  principle  that  marriage  is  a  civil  contract  to  be  accompanied 
by  a  religious  ceremony,  unless  the  parties  are  so  absurd  and  per- 
verted in  their  understandings  that  they  object  to  a  religious 
ceremony ;  in  which  case  (which  I  rejoice  to  think  has  been  very 
rare)  the  religious  ceremony  has  been  dispensed  with.  But  the 
framing  of  a  similar  Act  for  Ireland,  which  shall  give  satisfaction 
to  the  Established  Church,  to  the  Eoman  Catholic  priesthood  and 
population,  and  to  the  Presbyterians  and  other  Protestant  dis- 
senters, with  the  necessary  machinery  for  notice,  license,  and 
registration,  I  am  afraid  will  be  found  a  task  very  diffi- 
cult for  any  government  to  accomplish.  Then  what  *  pro-  [*  801] 
spective  provisions  are  to  be  made  for  marriages  between 
British  subjects  in  the  colonies,  in  Pagan  countries,  and  on  the 
wide  ocean  ?  May  you  not  be  driven  to  enact  that  the  ancient 
canon  law,  which  Lord  Stowell,  as  it  is  now  said,  erroneously 
supposed  to  have  been  the  common  law  of  England,  shall  be  taken 
to  be  the  law  of  England  wherever  it  has  not  been  altered  by 
positive  statutes ;  and  thus  reduce  things  to  the  quiet  and  satis- 
factory state  in  which  they  were  before  this  controversy  arose  ? 

But  a  wiser  and  more  salutary  course  will  be  for  your  Lord- 
ships judicially  to  decide  that,  according  to  the  opinion  of  Lord 
Stowell,  the  marriage  is  valid,  and  all  legislation  on  the  subject 
may  be  unnecessary. 

•Supposing  the  first  marriage  to  be  valid,   that  the  [•803] 
prisoner  was  *  married  "  within  the  meaning  of  10  Geo. 
rv.,  a  34,  and  so  guilty  of  bigamy  by  marrying  again,  I  cannot 

VOL.  XVII.  —  9 


130  MABRIAGE. 

Ko.  2.  ^Beg.  V.  llillii,  10  CL  &  Iln.  808>8a2. 

doubt  for  one  moment ;  and  my  opinion  would  have  been  the  same 
if  the  second  marriage  had  been  exactly  in  the  same  form  as  the 
first,  instead  of  being  in  a  church  according  to  the  rites  and  cere- 
monies of  the  Church  of  England.  How  can  this  be  considered  a 
mere  executory  contract  not  intended  to  operate  as  marriage  till 
publicly  solemnised,  when  the  parties  were  actually  married  by  a 
minister  of  religion,  who  they  believed  had  power  to  marry  them, 
and  after  receiving  the  nuptial  benediction  from  him,  lived 
together  as  husband  and  wife? 

I  must  therefore  very  humbly  advise  your  Lordships  to  reverse 
the  judgment  of  the  Court  of  Queen's  Bench  in  Ireland,  and  to 

give  judgment  for  the  Crown. 
[831]  The  Lord  Chancellor.  — This,  my  Lords,  is  a  ques- 
tion of  so  much  importance,  embracing  such  a  variety  of 
considerations,  and  affecting  such  deep  and  extensive  interests, 
that  I  have  thought  it  right,  agreeably  to  the  course  pursued  by 
my  noble  and  learned  friends,  to  state  my  opinion  upon  it  in 
writing;  and  with  your  permission  I  will  read  it  to  your 
Lordships. 

The  first  and  material  point  for  consideration  in  this  case  is, 
as  to  the  effect  by  the  law  of  England,  previous  to  the  Marriage 
Act,  of  a  contract  or  engagement  of  matrimony  per  verba  de 
prcBsenti ;  by  which  I  understand  a  contract  of  present  marriage, 
for  that  is  the  sense  in  which  these  words  are  used  in  all 
[*832]  the  *text  writers  and  reports  of  decisions  upon  the  sub- 
ject ■  Spousals  de  prcesenti, "  Swinburne  says,  "  are  a 
mutual  promise  or  contract  of  present  matrimony;  as  when  the 
man  doth  say  to  the  woman,  '  I  do  take  thee  to  my  wife ; '  and 
she  then  answereth,  *  I  do  take  thee  to  my  husband. '  ' 

Such  a  contract  entered  into  between  a  man  and  a  woman  was 
indissoluble ;  the  parties  could  not  by  mutual  consent  release  each 
other  from  the  obligation.  Either  party  might,  by  a  suit  in  the 
Spiritual  Court,  compel  the  other  to  solemnise  the  marriage  in 
facie  ecclesice.  It  was  so  much  a  marriage,  that  if  they  cohabited 
together  before  solemnisation,  they  could  not  be  proceeded  against 
for  fornication,  but  merely  for  a  contempt  If  either  of  them 
cohabited  with  another  person,  the  parties  might  be  proceeded 
against  for  adultery.  The  contract  was  considered  to  be  of  the 
essence  of  matrimony,  and  was  therefore,  and  by  reason  of  its 
indissoluble  nature,  styled  in  the  ecclesiastical  law  verum  matri- 


U.  C.  VOL.  XVn.]  MAKBIAGE.  131 

Vo.  3.— Beg.  T.  MiUis,  10  Gl.  &  Fin.  888,  883. 

moniumy  and  sometimes  ipsum  matrimonium.  Another  and  most 
important  efifect  of  such  a  contract  was,  that  if  either  of  the  parties 
afterwards  married  with  another  person,  solemnising  the  same  in 
facie  ecdesicB,  such  marriage  might  be  set  aside,  even  after  cohabi- 
tation and  the  birth  of  children,  and  the  parties  compelled  to 
solemnise  the  first  marriage  in  facie  ecclesice.  Such  were  the 
effects  of  a  contract  of  marriage  per  verba  de  pra^enti. 

A  contract  of  marriage  per  verba  de  futuro,  that  is,  a  contract 
for  future  marriage,  might  be  released,  and  the  Court  would  not 
compel,  in  opposition  to  the  will  of  either  of  the  parties,  solemni- 
sation in  facie  ecclesice,  though  in  this  case  the  party  refusing  to 
perform  the  contract  might  be  punished  propter  Icesionem  Jidei. 
But  in  the  case  of  a  contract  of  this  nature,  if  it  were 
•followed  by  cohabitation,  it  was  then  put  upon  the  same  [*833] 
footing  as  a  contract  per  verba  de  prcesenti,  and  was  fol- 
lowed by  the  same  consequences. 

At  present,  however,  I  am  directing  your  Lordships'  attention 
to  a  contract  of  marriage  per  verba  de  prcesenti,  and  its  legal  con- 
sequences and  effects.  They  are  such  as  I  have  already  stated, 
and  the  authorities  upon  the  subject  will  upon  examination  be 
found  to  be  imiform  and  consistent. 

I  shall,  in  support  of  this  statement,  refer  in  the  first  instance 
to  Swinburne,  in  his  treatise  of  Spousals.  The  writer  lived  in 
the  reign  of  Queen  Elizabeth,  and  was  for  several  years  a  Judge  of 
the  Prerogative  Court  at  York.  This  treatise  is  a  work  of  great 
learning,  though  tinctured  with  the  quaintness  so  common  with 
the  writers  of  that  period-  Lord  Stowell  makes  constant  refer- 
ence to  his  authority.  Swinburne  says,  "  That  woman  and  that 
man  which  have  contracted  spousals  de  prcesenti  cannot  by  any 
agreement  dissolve  those  spousals,  but  are  reputed  for  very  hus- 
band and  wife,  in  respect  of  the  substance  and  indissoluble  knot  of 
matrimony;  and  therefore,  if  either  of  them  should  in  fact  proceed 
to  solemnise  matrimony  with  any  other  person,  consummating  the 
same  by  carnal  copulation  and  the  procreation  of  children,  this 
matrimony  is  to  be  dissolved  as  unlawful,  the  parties  marrying 
to  be  punished  as  adulterers,  and  their  issue  in  danger  of  bastardy. 
The  reason  is,  because  here  is  no  promise  of  any  future  act,  but  a 
present  and  perfect  consent,  the  which  alone  maketh  matrimony, 
without  either  public  solemnisation  or  carnal  copulation;  for 
neither  is  the  one  nor  the  other  the  essence  of  matrimony   but 


132  MARRIAGE. 


Ko.  3.  —  Beg.  ▼.  XmU,  10  GL.  &/  Fin.  833-835. 


consent  only.     The  ecclesiastical  laws  do  usually  give  to  women 

betrothed  only  or  affianced  the  name  and  title  of  wife  * 

[*  834]  because  in   truth  the  man  and  woman,    *  thus  perfectly 

assured  by  words  of  present  time,  are  husband  and  wife 

before  God  and  his  churcL  " 

In  another  passage  he  expresses  himself  thus :  "  Spousals  de 
prcBsenti,  though  not  consummate,  be  in  truth  and  substance  very 
matrimony,  and  therefore  perpetually  indissoluble,  except  for  adul- 
tery. "  Again  he  says,  "  The  parties  having  contracted  spousals 
de  prcesenti,  albeit  the  one  party  should  afterwards  many  another 
person  in  the  face  of  the  church,  and  consummate  the  same  by 
carnal  copulation,  notwithstanding,  the  first  contract  is  good,  and 
shall  prevail  against  the  second  marriage. " 

In  a  subsequent  passage  he  points  out  the  mode  of  proceeding, 
"  by  the  laws  ecclesiastical  of  this  realm,  where  a  party  having 
contracted  spousals  deprcesenti,  should  afterwards  refuse  to  undergo 
the  holy  bond  of  matrimony. " 

In  the  case  of  Dalrymple  v.  Dalrymple,  so  often  referred  to, 
and  never  without  just  praise.  Lord  Stowell,  the  most  learned 
ecclesiastical  lawyer  of  his  age,  expresses  himself  in  accordance 
witli  the  opinions  of  Swinburne,  whose  work  he  cites,  and  whose 
authority  he  sanctions :  "  The  consent  of  two  parties,  expressed  in 
words  of  present  mutual  acceptance,  constituted  an  actual  and 
legal  marriage,  technically  known  by  the  name  of  sponsalia  per 
verba  de  prcesenti ;  improperly  enough,  because  sponsalia,  in  the 
original  and  classical  meaning  of  the  word,  are  preliminary  cere- 
monials of  marriage.  The  expression,  however,  was  constantly 
used,  in  succeeding  times,  to  signify  clandestine  marriages,  that 
is,  marriages  unattended  by  the  prescribed  ecclesiastical  solemni- 
ties, in  opposition,  first,  to  regular  marriages;  secondly, 
[*  835]  to  mere  *  engagements  for  a  future  marriage,  which  were 
termed  spovsalia  per  verba  de  futuro;  a  distinction  of 
sponsalia  not  at  all  known  to  the  Eoman  civil  law.  Dififerent 
rules,  relative  to  their  respective  efi'ects  in  point  of  legal  conse- 
quence, applied  to  these  three  cases  of  regular  marriages,  of  irreg- 
ular marriages,  and  of  mere  promises  or  engagements.  In  the 
regular  marriage  everything  was  presumed  to  be  complete  and 
consummated,  both  in  substance  and  in  ceremony ;  in  the  irregu- 
lar marriage  everything  was  presumed  to  be  complete  in  substance, 
but  not  in  ceremony,  and  the  ceremony  was  enjoined  to  be  under- 


R.  a  YOL  XVIL]  MABRU6B.  133 

Vo.  S.  — Beg.  T.  Xmu,  10  a  &;  Fin.  835,  886. 

gone  as  matter  of  order ;  in  the  promise,  or  sponsalia  de  future, 
nothing  was  presumed  to  be  complete  or  consummate  either  in 
substance  or  ceremony.  Mutual  consent  would  relieve  the  parties 
from  their  engagement,  and  one  party,  without  the  consent  of  the 
other,  might  contract  a  valid  marriage,  regular  or  irregular,  with 
another  person. "  In  a  subsequent  peissage  he  states  that  "  this 
country  disclaimed,  amt)ngst  other  opinions  of  the  Bomish  Church, 
the  doctrine  of  a  sacrament  in  marriage,  though  still  retaining  the 
idea  of  its  being  of  divine  institution  in  its  general  origin,  and  as 
well  on  that  account  as  of  the  religious  forms  that  were  prescribed 
for  its  regular  celebration,  and  holy  estate,  holy  matrimony ;  but 
it  likewise  retained  those  rules  of  the  canon  law  which  had  their 
foundation,  not  in  the  sacrament  or  in  any  religious  view  of  the 
subject,  but  in  the  natural  and  civil  contract  of  marriage.  The 
Ecclesiastical  Courts,  therefore,  which  had  the  cognisance  of 
matrimonial  causes,  enforced  these  rules ;  and,  among  others,  that 
rule  which  held  an  irregular  marriage  constituted  per  verba  de 
prceseTiti,  not  followed  by  any  consummation  shown,  valid  to  the 
full  extent  of  voiding  a  subsequent  regular  marriage  con- 
tracted •with  another  person.  The  same  doctrine, **  he  [•836] 
adds,  "  is  recognised  by  the  temporal  Courts  as  the  exist- 
ing rule  of  the  matrimonial  law  of  this  country ; '  and  he  cites 
Bunting's  case  in  support  of  this  position. 

In  these  passages  Lord  Stowell  is  speaking  of  the  ecclesiastical 
law  of  England.  No  man  knew  better  than  he  did  what  that  law 
was,  and  upon  what  it  was  founded-  When  he  mentions  the 
canon  law  he  must  obviously  mean  that  portion  of  the  canon  law  I 

received  here,  and  which  forms  so  considerable  a  part  of  the 
ecclesiastical  law  of  this  country.  It  is  impossible  to  suppose 
that  he  should  for  a  moment  have  lost  sight  of  this  distinction. 

The  same  doctrine  was  stated  by  Sir  Edward  Simpson  in  his 
judgment  in  Serimshire  v.  Scnmshire,  2  Hagg.  Cons.  Rep.  395, 
pronounced  in  the  year  1752,  shortly  before  the  passing  of  the 
Marriage  Act.  His  words  are  these :  "  The  canon  law  received 
here  calls  an  absolute  contract  ipsum  matrimonium,  and  will 
enforce  solemnisation  according  to  English  rites. "  ^ 

Another  authority  to  the  same  effect  is  that  of  Doctor  Ayliflfe, 
the  learned  author  of  the  "  Parergon. "  He  states  that  "  the 
ancient  canon  law  received  in  this  realm  is  the  law  of  the  king- 
dom in  ecclesiastical  cases,  if  it  be  not  repugnant  to  the  royal 


134  MARRIAGE. 


Ko.  2.  —Beg.  ▼.  Killis,  10  Gl.  &  Fin.  836-B38. 


prerogative,  or  to  the  customs,  laws,  and  statutes  of  the  realm. " 
There  is  in  his  work  a  chapter  "  on  Marriage  or  Matrimony, 
otherwise  called  Wedlock. "  He  there  speaks  of  "  spousals  de 
prcesenti,  commonly  called  marriage.  "  "  The  principal  thing, "  he 
says,  "  required  to  a  legal  marriage  is  the  consent  of  the  parties 

contracting,  which  is  sufficient  alone  to  establish  such  a 
[*  837]  marriage.    The  Council  of  Trent, "  he  adds,  "  declares  *  all 

clandestine  marriages  to  be  null  and  void ;  but  this  is  not 
law  in  England,  our  law  only  punishing  such  marriages  with  the 
censure  of  the  church. " 

In  strict  conformity  with  these  opinions  is  the  language  of 
Lord  Holt  in  the  case  of  Jesson  v.  Collins,  2  Salk.  437,  6  Mod. 
155,  which  has  given  occasion  to  so  much  observation.  A  suit 
had  been  instituted  in  the  Ecclesiastical  Court  to  dissolve  a  mar- 
riage by  reason  of  a  precontract  per  verba  de  prcesenti,  A  prohibi- 
tion was  moved  for,  upon  a  suggestion  that  the  contract  was  per 
verba  de  futuro,  for  the  breach  of  which  damages  might  be 
recovered  at  common  law.  But  Holt,  Ch.  J. ,  observed  in  answer, 
that  "  though  it  was  per  verba  de  futuro,  it  was  a  matrimonial 
matter,  and  the  Spiritual  Court  had  jurisdiction.  "  In  the  course 
of  his  judgment  he  stated,  as  it  was  very  natural  for  him  to  do, 
the  distinction  between  such  a  contract  and  a  contract  per  verba 
de  prcesenti,  "  The  latter, "  he  said,  "  was  a  marriage ;  viz. ,  I 
marry  you :  You  and  I  are  man  and  wife ;  and  this  is  not  releas- 
able.  Per  verba  de  futuro,  I  will  marry  you;  I  promise  to  marry 
you ;  &c.  ;  which  do  not  intimate  an  actual  marriage,  but  refer  it 
to  a  future  act ;  and  this  is  releasable ;  and  as  it  is  releasable,  the 
party  may  admit  the  breach,  and  demand  satisfaction. "  It  can- 
not, I  think,  be  justly  said  that  he  went  out  of  his  way  in  making 
these  observations.  A  distinction  had  been  taken  between  a  con- 
tract ^er  verba  de  prcesenti  and  a  contract  per  verba  de  futuro,  and 
the  ground  taken  for  moving  for  the  prohibition  was,  that  the 
proper  remedy  in  the  latter  case  was  by  an  action  for  damages. 

In  the  subsequent  case,  viz.,  Wigmore's  Case,  2  Salk. 
[*  838]    438,  *  the  wife  sued  in  the  Spiritual  Court  for  alimony. 

The  husband  was  an  Anabaptist,  and  had  a  license  to 
marry,  but  married  the  woman  according  to  the  forms  of  their 
own  religion.  "  Et  per  Holt,  Ch.  J.  :  By  the  canon  law,  a  contract 
per  verba  de  pra^senti  is  a  marriage ;  as,  I  take  you  to  be  my  wife ; 
so  it  is  of  a  contract  per  verba  de  futuro,  viz.,  I  will  take,  &c. 


B.  C.  VOL  XVII.]  MARRIAGE.  135 

Ho.  2.  -  Beg.  ▼.  XiUiB,  10  CL  &  Fin.  888,  839. 

If  the  contract  be  executed,  and  he  does  take  her,  it  is  a  marriage, 
and  they,"  that  is,  the  Spiritual  Court,  "cannot  punish  for 
fornication. ' 

We  have  the  high  authority,  therefore,  of  this  learned  and 
eminent  Judge,  in  accordance  with  the  ecclesiastical  authorities 
to  which  I  have  referred ;  and  it  is  added  that  the  other  Judges 
of  the  Court  concurred  in  the  opinion  expressed  by  the  Chief 
Justice.  It  has  been  supposed  that  Lord  Holt  was  speaking  of 
marriage  contracts,  not  with  reference  to  the  ecclesiastical  law  of 
this  country,  but  to  the  general  canon  law,  because  in  Wigmore's 
case  he  used  the  expression,  *  by  the  canon  law.  *  Undoubtedly 
he  did  so,  but  by  that  expression  he  could  only  have  meant  the 
canon  law  received  here,  and  forming  part  of  the  ecclesiastical 
law  of  this  kingdom.  It  is  quite  obvious  that  his  observations 
would  have  been  perfectly  irrelevant  (a  circumstance  very  unusual 
with  this  distinguished  Judge)  if  the  expressions  were  used  in 
any  other  sense.  I  cannot,  therefore,  accede  to  this  explanation. 
And  why  are  we  to  put  a  forced  construction  upon  his  words, 
when  they  merely  express  an  opinion  relating  to  the  ecclesiastical 
law,  in  accordance  with  the  most  eminent  authorities  in  this 
branch  of  jurisprudence,  upon  a  subject  peculiarly  belonging  to 
their  jurisdiction? 

The  only  remaining  authority  to  which  I  think  it  necessary 
at  present  to  refer,  is  that  of  Mr.  Justice  *  Blackstone,  who  [*  839] 
states,  in  the  first  book  of  his  Commentaries  (p.  439),  that 
*  any  contract  made  per  verba  de  prcesenti,  or  in  words  of  the 
present  time,  between  persons  able  to  contract,  was,  before  the  late 
Act,  deemed  a  valid  marriage  to  many  purposes,  and  the  parties 
might  be  compelled  in  the  Spiritual  Courts  to  celebrate  it  in  facie 
teclesice,  *  It  is  obvious  that  the  learned  commentator  considered 
this  statement  of  the  law  of  marriage  as  free  from  all  doubt,  for 
he  did  not  think  it  necessary  to  cite  any  authority  in  support  of 
the  position.  These  Commentaries  passed  through  several  edi- 
tions in  the  lifetime  of  the  learned  author,  but  no  change  was 
made  in  the  passage  to  which  I  have  referred.  I  think  your 
Lordships  will  be  of  opinion  that  these  references,  which  might, 
if  necessary,  be  greatly  extended,  sufficiently  establish  what  I 
have  stated  as  to  the  nature  and  effect  of  a  contract  of  marriage 
'ptr  verba  de  prcesenti,  and  in  opposition  to  which,  I  conceive,  no 
authority  has  been  or  can  be  adduced. 


136  MAERIAGE. 

Ho.  2.  —Beg.  ▼.  lOllif,  10  a  &  Fin.  S89,  840. 

There  is  one  branch  of  this  subject  which  I  have  already  men- 
tioned, but  to  which  I  must  more  particularly  advert,  because  it 
connects  itself  closely,  as  I  shall  hereafter  have  occasion  to  show, 
with  the  main  question  before  your  Lordships ;  namely,  the  judg- 
ment that  has  been  pronounced  in  this  case  by  the  Court  of  Queen's 
Bench  in  Ireland.  I  have  stated  that  a  contract  per  verba  de 
pi'cesenti  may  be  enforced  against  either  of  the  parties  to  it, 
although  such  party  may  have  subsequently  been  married  in  facie 
ecclesioe  to  another  person,  and  even  after  consummation  and  the 
birth  of  children.  This  is  abundantly  clear  from  the  statute  32 
Hen.  VIII. ,  c.  38,  which  recites,  that  "  Whereas  heretofore  divers 
and  many  persons,  after  long  continuance  together  in  matrimony, 
without  any  allegation  of  either  of  the  parties  or  any 
[*  840]  other,  that  their  *  marriage,  why  the  same  should  not  be 
good,  just,  and  lawful,  and  after  the  same  matrimony 
solemnised  and  consummated,  and  sometimes  with  fruit  of  chil- 
dren, have  nevertheless,  by  an  unjust  law  of  the  Bishop  of  Eome, 
upon  pretence  of  a  former  contract  made  and  not  consummated, 
been  divorced  and  separated,  contrary  to  God's  law;  and  so  the 
true  matrimony,  both  solemnised  in  the  face  of  the  church  and 
consummated,  and  confirmed  also  with  fruit  of  children,  clearly 
frustrated  and  dissolved."  The  statute,  therefore,  proceeds  to 
enact.  "  That  such  marriage,  being  contract,  and  solemnised  in 
the  face  of  the  church,  and  consummated  with  bodily  knowledge 
or  fruit  of  children,  shall  be  deemed,  judged,  and  taken  to  be 
lawful,  good,  just,  and  indissoluble,  notwithstanding  any  precon- 
tract or  precontracts  of  matrimony  not  consummate  with  bodily 
knowledge,  which  either  of  the  parties  so  married,  or  both,  shall 
have  made  with  any  other  person  or  persons  before  the  time  of 
contracting  such  marriage." 

This  law  was  pointed  against  the  injustice  of  dissolving  by 
reason  of  precontract  a  marriage  solemnised  in  facie  ecclesice,  and 
after  consummation  between  the  parties;  but  it  left  the  law, 
where  there  had  been  no  consummation,  as  it  stood  before.  Great 
dissatisfaction  appears  to  have  been  occasioned  by  this  change, 
and  very  early  in  the  reign  of  Edward  Vl.  the  statute  was  re- 
pealed, and  the  law  restored  to  its  former  state. 

Bunting's  case.  Bunting  v.  Lepingwell,  4  Co.  Eep.  29,  Moore, 
169,  which  has  been  referred  to  on  both  sides  in  the  argument, 
is  an  instance  of  the  application  of  the  general  rule.     This  was 


^'C.  VOL.  XVII.]  MAKRIAGE.  137 

Ko.  2. —  Bag.  ▼.  Idlii^  10  a  &  Fin.  840-848. 

an  action  of  trespass,  and  upon  a  special  verdict  it  was  found  that 
John  Bunting   had    contracted    marriage   per    verba   de 
*proesenti  with    Agnes    Adingsel,    and   that    afterwards  [*841] 
Agnes  was  married   to  one   Twede,  and   cohabited  with 
him.      Bunting  sued  Agnes  in  the  Court  of  Audience,  and  proved 
Wie  cojitract,  and  sentence  was  pronounced  that  she  should  marry 
Glinting,  which  she  did.     They  had  issue  Charles  Bunting,  and 
afterwards  the  father  died.     The  jury  found,  that  if  Charles  was 
^e   san    and  heir  of  Bunting,  the  defendant  was  guilty  of  the 
t^spass-      The   main   questions   were  these:    It   was  contended 
ttat    tliore  should  have  been  a  sentence  of  divorce,  and  that  the 
husband  ought  to  have  been  a  party  to  the  suit;  but  the  Court 
decided    that  the  sentence  against  the  wife  only,  being  but  declara- 
tory, ^wsts  good,  and  should  bind  the  husband  de  facto;  and  that 
as  to  tlik^  other  point,  the  Court  must  give  faith  and  credit  to  the 
proceeding  and  sentence  of  the  Ecclesiastical  Court,  to  which  the 
cognisa.xxce   of  the   subject  of  marriage  belongs.     In   this   case, 
theti,   "tlxe  effect  of  a  precontract  per  verba  de  prcesenti  upon  a  sub- 
sequent xegular  marriage  in  fade  ecclesice,  which  this  is  stated  to 
have  l>oen,  was  admitted  and  sanctioned  by  the  Court  of  common 
law,  fo^  j|.  ^^g  resolved  that  the  plaintiff  was  legitimate,  and  no 

.     place  little  reliance  upon  the  terms  of  the  decree  of  the 

^^^^^>ial  Court,  as  recited  in  the  special  verdict ;  for,  as  they  do 

^^irrespond  with  the  usual  form  in  similar  cases,  it  is  probable 

.         tlie  substance  only  is  stated,  and  that,  too,  in  the  language 

^^^  pleader. 

Pj.        l^Bve  been  furnished,  by  the  kindness  and  industry  of  Mr. 

.%     -P^*  with  a  case  of  a  similar  nature,  extracted  from  the  rolls  of 

Plrovince  of  York,  in  which  the  sentence  is  set  forth  in  the 

^^^1  and  regular  form.     The  suit,  which  is  of  ancient  date  (in 

^    fourteenth   century),    is   thus    entitled:    Cecilia    de 

^^ynton  YeiSMS  *  John  de  Steiribergh  smd  Alicia  Cristyn-  [*842] 

^^•^6,  "  quam  idem  Johannes  de  facto  duxit  in  uxorem. " 

^^e  libel  charged  that  the  said  John  and  Alicia  contracted  a 

marriage  de  facto,  and  solemnised  the  same  in  the  face  of   the 

church.     Then  follows   this   allegation,  that  the  said  marriage 

doea  not  and  cannot  subsist  de  jure,  by  reason  of  a  precontract, 

eum  copula,  between  the   said   John  and  Cecilia.     It   therefore 

prays  the  marriage  de  facto  between  John  and  Alicia  may  be  pro- 


138  MARBIAGE. 


Ko.  2.~Bag.  ▼.  ICiUU,  10  a  &  Fin.  842,  843. 


nounced  to  have  been  and  to  be  {fuisse  et  esse)  null  and  void,  and 
that  the  said  John  may  be  adjudged  the  lawful  husband  of  the 
said  Cecilia,  and  be  compelled  to  solemnise  matrimony  with  her 
in  fade  ecclesice,  &c.  The  evidence  is  set  forth,  and  is  followed 
by  the  sentence,  which  dissolves  the  marriage  de  facto  with 
Alicia,  and  pronounces  it  fuisse  et  esse  invalidum,  and  adjudges 
the  said  John  "  in  virum  legitimum  CecUice,  *  It  then  proceeds 
thus :  "  Et  ad  solemnizandum  matrimonium  cum  eadem  in  facie 
ecclesise,  ut  est  moris,  cononice  compellendum  et  coercendum  fore 
decernimus. "  The  previous  contract  washer  verba  defuturo,  but 
it  was  followed  by  cohabitation,  and  was  therefore  in  its  legal 
effect  and  consequences  the  same  as  a  contract  per  verba  de 
prcesenti.     The  sentence  was  appealed  from,  and  aflSrmed. 

From  this  case  it  appears  that  the  regular  course  of  proceeding 
was  to  make  the  husband  of  the  second  marriage  a  party  to  the 
suit,  to  pronounce  a  dissolution  of  that  marriage,  to  adjudge  the 
husband  to  be  the  lawful  husband  of  the  party  to  the  first  con- 
tract, and  to  decree  solemnisation  in  the  face  of  die  church.  It 
further  appears  from  the  terms  of  the  sentence,  that  the  dissolved 
marriage  was  pronounced  to  have  been  and  to  be  {fuisse  et  esse) 
void,  agreeably  to  the  rule  of  the  Ecclesiastical  Court, 
[*  843]  that  when  a  marriage  *  voidable  by  reason  of  precontract  is 
annulled,  it  is  annulled  ab  initio. 

Lord  Coke,  1  Inst  33  a,  in  speaking  of  these  marriages  de 
facto  voidable  by  reason  of  precontract,  expresses  himself  thus: 
"  So  it  is,  if  a  marriage  de  facto  be  voidable  by  divorce  in  respect 
of  consanguinity,  affinity,  precontract,  or  such  like,  whereby  the 
marriage  might  have  been  dissolved,  and  the  parties  freed  a 
vinculo  matrimonii;  yet,  if  the  husband  die  before  any  divorce, 
then,  for  that  it  cannot  now  be  avoided,  this  wife  de  facto  shall 
be  endowed,  for  this  is  legitimum  TnaiHmonium  quoad  dotem  ;  and 
so  in  a  writ  of  dower,  the  bishop  ought  to  certify  that  they  were 
legitimo  matrimonio  copulati,  according  to  the  words  of  the  writ ; 
and  herewith  agreeth  10  Edw.  Ill,  35.  But  if  they  were  divorced 
a  vinculo  matrimonii  in  the  life  of  the  husband,  she  loseth  her 
dower."     He  cites  Bracton  to  the  same  eflfect 

Your  Lordships  will  therefore  observe,  that  when  a  contract 
per  verba  de  prcesenti  between  two  parties  was  followed  by  a  mar- 
riage solemnised  in  the  face  of  the  church  between  one  of  the 
parties  and  another  person,  the  latter  marriage  was  not  by  reason 


R.  C.  VOL.  XVII.]  MARRIAGE.  139 

Fo.  2.  —Beg.  ▼.  Xmii,  10  a  &/  Fin.  848-846. 

of  the  precontract  absolutely  void,  bnt  merely  voidable ;  and,  as 
a  consequence  of  this,  that  if  such  marriage  were  not  annulled  by 
sentence  of  the  Ecclesiastical  Court  in  the  lifetime  of  the  parties, 
it  could  not  afterwards  be  affected ;  —  the  widow  would  have  her 
dower,  and  the  children  be  legitimate. 

Such,  then,  were  the  principal  incidents  of  this  species  of 
contract ;  the  engagement  was  indissoluble,  the  parties  could  not, 
even  by  mutual  consent,  release  it;  either  party  might  compel 
solemnisation  in  facie  ecclesice ;  the  parties  cohabiting 
together  could  not  be  *  punished  for  fornication,  though  [*844] 
liable  to  ecclesiastical  censure;  either  party  cohabiting 
with  another  person  might  be  punished  for  adultery ;  and  lastly, 
such  a  contract  was  sufificieut  to  avoid,  by  means  of  a  suit,  a  sub- 
sequent marriage  entered  into  by  either  of  the  parties,  and 
solemnised  in  facie  ecclesice. 

It  must  always  be  remembered  that  the  Spiritual  Courts  were 
the  sole  judges  of  the  lawfulness  of  marriage,  where  that  question 
was  directly  in  issue.  If  the  question,  whether  a*  marriage  be 
lawful  or  not,  was  raised  upon  a  distinct  issue  in  the  Courts  of 
common  law,  the  rule  was  that  it  should  be  tried,  not  by  a  jury, 
but  referred  for  decision  to  the  spiritual  tribunal,  and  the  certifi- 
cate of  the  bishop  was  conclusive. 

The  opinions  to  which  I  have  referred,  as  to  the  nature  and 
effect  of  these  contracts,  are  not,  as  your  Lordships  will  have 
observed,  merely  those  of  learned  individuals  and  Judges  of  the 
ecclesiastical  tribunals ;  I  have  also  shown  that  these  opinions  are 
confirmed  by  common-law  authorities  of  the  most  respected  and 
highest  character :  that  a  contract  therefore  per  verba  de  prcesenti 
was,  at  the  period  to  which  we  are  referring,  considered  to  be  a 
marriage ;  that  it  was,  in  respect  of  its  "  constituting  the  substance 
and  forming  the  indissoluble  knot  of  matrimony  "  (to  use  the 
expression  of  Swinburne),  regarded  as  verum  matrimonium,  and 
was  followed  by  such  incidents  as  I  have  mentioned,  —  is,  I 
apprehend,  clear  beyond  all  controversy. 

But  then  the  same  authorities  inform  us  that  such  marriages 
were  irregular,  that  they  were  a  looser  sort  of  marriages ;  that  they 
were  not,  as  Swinburne  says,  perfect  marriages,  though  equally 
binding;  that,  according  to  Blackstone,  they  were  marriages  for 
many,  and  consequently  not  for  all,  purposes ;  and  that, 
in  *  order  to  constitute   a  regular  marriage  —  a  perfect  [*845] 


140  MARBIAGE. 


Ho.  2.  —Bag.  ▼.  ICiUii,  10  a  &  Fin.  846,  840. 


marriage  —  a  marriage  with  all  the  consequences  belonging  to  a 
marriage  in  its  complete  and  perfect  state,  solemnisation  was 
necessary ;  and  your  Lordships  will  find  that  the  same  ecclesias- 
tical authorities  admit  in  the  fullest  manner  this  to  be  the  law,  in 
conformity  with  the  opinions  of  the  temporal  lawyers  and  the 
decisions  of  the  civil   tribunals. 

Swinburne,  Of  Espousals,  a  17,  in  the  work  to  which  I  have 
before  referred,  thus  expresses  himself  upon  this  subject: 
•*  SpousaU  de  prcBsenti,  though  not  consummate,  be  in  truth  and 
substance  very  matrimony.  Although  by  the  common  laws  of 
this  realm  (like  as  it  is  in  France  and  other  places),  spousals,  not 
only  de  futuro,  but  also  de  prcesenti,  be  destitute  of  many  legal 
effects  wherewith  marriage  solemnised  doth  abound,  whether  we 
respect  legitimation  of  issue,  alteration  of  property  in  her  goods, 
or  right  of  dower  in  the  husband's  lands. "  And  in  another  place 
he  says,  "  Yet  do  not  these  spousals,  that  is,  per  verba  de  prcesenti, 
produce  all  the  same  effects  here  in  England  which  matrimony 
solemnised  in  the  face  of  the  church  doth ;  whether  we  respect  the 
legitimation  of  their  children,  or  the  property  which  the  husband 
hath  in  the  wife's  goods,  or  the  dower  which  she  is  to  have  in  his 
lands ;  of  which  effects  we  shall  have  better  opportunity  to  deliver 
our  mind  hereafter. "  Again,  **  Other  effects  there  be  of  spousals, 
whereof  some  respect  the  issue  or  children  begotten  before  celebra- 
tion of  the  marriage  betwixt  those  which  have  contracted  spousals, 
and  some  have  relation  to  their  lands  and  goods.  Concerning 
their  issue,  true  it  is  that  by  the  canon  law  the  same  is  lawful ; 

but  by  the  laws  of  this  realm  their  issue  is  not  lawful, 
[*846]  though  the  father  and   the  *  mother  should  afterwards 

celebrate  marriage  in  the  face  of  the  church.  Likewise 
concerning  lands,  by  the  canon  law  the  foresaid  issue  may  inherit 
the  same ;  but  it  is  otherwise  by  the  laws  of  this  realm,  for  as  the 
issue  is  not  legitimated  by  subsequent  marriage,  no  more  can  he 
inherit  his  father's  land;  and  as  he  cannot  inherit,  no  more  is 
she  to  have  any  dower  of  the  same  lands,  for  whereas  by  the  laws 
of  this  realm  a  married  wife  is  to  have  the  third  part  of  her  hus- 
band's lands  holden  in  fee  simple  or  fee  tail,  either  general  or 
special,  for  her  dower  after  her  husband's  death,  during  her  life, 
so  that  she  be  above  the  age  of  nine  years  at  her  husband's  death, 
yet  a  woman  having  contracted  matrimony,  if  the  man  to  whom 
she  was  betrothed  die  before  the  celebration  of  the  marriage,  she 


\ 


v 


^  C.  VOL.  XVII.]  MARRIAGE.  141 

Ho.  8.~Beg.  ▼.  MiUii,  10  a  &  Flo.  846,  847. 

Gannot  have  any  dower  of  his  lands,  because  as  yet  she  is  not  his 

/swfiil  wife,  at  least  to  that  efifect     Concerning  goods,  the  like 

msiy  be  said  of  them  as  hath  already  been  spoken  of  lands,  that  is 

to  sctj,  that  although  by  the  civil  and  canon  laws,  where  the  man 

c^ot^lx  gain  any  of  the  woman's  goods,  or  the  woman  gain  any  of 

tlk^      :»ian'8  goods,  by  reason  of  marriage,  spousals  de  prcesenti  or 

<ie     ^^^iduro,  consummate  with  carnal  knowledge,  have  the  same 

efir^<:iti  as  hath   matrimony  solemnised,  yet  by  the  laws  of  this 

re^l  xaa  it  is  otherwise ;  so  that  neither  spousals  de  prcesentiy  neither 

8po"«Ji-sal8  de  futuro  consummate,  do  make  her  goods  his,  or  his 

gooKfLs  hers ;  and  hence  it  is  that  a  woman  contracted  in  matri- 

"^^^^■=^^,  dying  before  the  celebration  of  the  marriage,  may  make  her 

^^^"^^ment,  and  dispose  of  all  her  goods   at  her  own  pleasure, 

^5^  i  cii  h  after  solemnisation  of  the  marriage  she  cannot  do  without 

1^^^       license  and  consent     And  on  the  other  side,  the  man  dying 

fciate  before  celebration  of  the  marriage,  the  woman 

'lorn  he  was  betrothed  *  surviving  cannot  obtain  the  [*847] 

inistration  of  his  goods  as  his  widow,  which  other- 

^"'^^^fc^  the  marriage  being  solemnised,  she   might  do.     And  the 

^^^     I  read  to  be  observed  in  divers  other  countries,  as  in  France 

^^     Saxony,  where  neither  he  nor  she  gain  any  part  of  the  other's 

^  ^^*^3.s  by  being  affianced,  unless  the  marriage  be  solemnised,  if 

^       consummated  also." 

,  -'-— ^iDrd  Stowell,  in  like  manner,  in  the  Dalrymple  case,  states, 

^^^  reference  to  these   contracts,    that  **  the  common  law  had 

^'"^^^;5)les  in  applying  the  civil  rights  of  dower  and  community  of 

^.  ^^^3.8  and  legitimacy,  in  the  cases  of  these  looser  species  of  mar- 

^^5^;"  obviously   meaning,    though   in  more  general   terms,  to 

^t^'Xriess  the  same  opinion  as  Swinburne,    whom,   among  other 

^^^X  critics,  he  cites  for  this  position. 

.      -'^lie  same  view  of  the  law  was  taken  by  Sir  Edward  Simpson 

tie  case  of  Scrimshire  v.  Scrimshire,  which  occurred  shortly 

^^^^:x«  the  Marriage  Act;  his  words  are  these:  "I  apprehend, 

^^^^©s  persons  in  England  are  married  according  to  the  rites  of  the 

.  ^^^^^:rch  of  England,  they  are  not  entitled  to  the  privileges  attend- 

^^S   l^al  marriages,  as  dower,  thirds,  &c.     And  when  Mr.  Justice 

^^  A.CKSTONB  says  "  such  marriages  are  valid  for  many  purposes, " 

^^^  therefore  not  for  "  all  purposes, "  it  is  evident  his  view  of  the 

6>xb]eQt  was  in  accordance  with   that  of  the  ecclesiastical  law 

^Mthorities  to  whom  T  have  referred. 


142  MARRIAGE. 


Ho.  2.  —  Beg.  y.  XiUiB,  10  CI.  &  Fiii.  847-849. 


The  same  opinion  is  expressed  by  Lord  Holt  in  the  case  before 
referred  to.  He  thus  expresses  himself :  "  In  the  case  of  a  dis- 
senter married  to  a  woman  by  the  minister  of  a  congregation,  not 
in  orders,  it  is  said  that  this  marriage  is  not  a  nullity,  because  by 
the  law  of  nature  the  contract  is  binding  and  sufficient ;  for  though 
the  positive  law  of  man  ordains  that  marriages  shall  be 
[*848]  made  by  a  priest,  that  law  only  makes  *this  marriage 
irregular,  and  not  expressly  void ;  but  marriages  ought  to 
be  solemnised  according  to  the  rites  of  the  Church  of  England  to 
entitle  to  the  privileges  attending  legal  marriages,  as  dower, 
thirds,"  &c. 

In  a  learned  work,  written  in  a  popular  form,  on  the  subject  of 
marriage,  published  in  the  year  1632,  entitled  "  The  Woman's 
Lawyer, '  and  which  has  been  ascribed  to  Mr.  Justice  Doddridge, 
is  the  following  passage :  "  If  Titus  and  Sempronia  by  words  de 
prcBsenti  in  a  lawful  consent  contract  marriage,  they  are  man  and 
wife  before  God;  but  public  celebration  according  to  law  is  it 
which  maketh  man  and  wife  in  plain  view  of  law.  One  nail 
keepeth  out  another,  and  a  firm  betrothing  forbiddeth  any  new 
contract;  yet  they  which  dare  play  man  and  wife  only  in  the 
view  of  heaven  and  closet  of  conscience,  let  them  be  advised  how 
they  shall  take  the  advantages  or  emoluments  of  marriage  in  con- 
science or  in  heaven ;  for,  on  earth  if  the  priest  see  no  celebrated 
marriage,  the  Judge  saith  no  legitimate  issue,  nor  the  law  any 
reasonable  or  constituted  dower.**  This  agrees  with  the  other 
authorities.  I  refer  to  it  principally  on  account  of  its  data  It 
shows  what  was  the  generally  received  opinion  upon  the  subject 
at  that  period. 

The  next  point  for  consideration,  therefore,  will  be,  how  far 
these  opinions  are  supported  by  the  decisions  of  the  Courts  of  com- 
mon law.  First,  then,  as  to  dower,  and  the  case  cited  with 
respect  to  it  from  Lord  Hale's  Manuscripts.  An  account  of  these 
manuscripts  is  given  by  Mr.  Hargrave,  in  the  preface  to  his  edi- 
tion of  "  Coke  upon  Littleton. "  There  is  no  doubt  they  were 
copied  from  originals  in  the  handwriting  of  Lord  Hale.  The  case 
is  this:  A.  contracts,  per  verba  de  prcesenti,  with  B. 
[*  849]  and  has  issue  by  her,  *  and  afterwards  marries  C.  in  facie 
ecdesice ;  B.  recovers  A.  for  her  husband  by  sentence  of 
the  Ordinary ;  and  for  not  performing  the  sentence  he  is  excom- 
municated, and  afterwards  enfeoffs  D.,  and  then  marries  B.   in 


^  C.  VOL.  XVU.]  MAREUGB.  143 

■> — 

Ho.  8.~Beg.  ▼.  XiUiB,  10  a  &  Fin.  849,  MO. 

/arie  ecclesuB,  and  dies ;  she  brings  dower  against  D. ,  and  recovers, 
because  the  feoffment  was  per  fraudem  mediate  between  the  sen- 
tence  and   the   solemn   marriage,    sed  reversatur  coram  liege  et 
CoTicHio  quia  prcedicttis  A.  non  /uit  seisittcs  during  the  espousals 
between  him  and  B. 

There  is,  I  think,  no  sufficient  foundation  for  the  suggestion 
that  t:liis  was  not  a  decision  by  one  of  the  regular  tribimals  of  the 
counfciy.  It  was  obviously  not  considered  by  Lord  Hale  as  liable 
^  tills  objection.  But  as  the  suggestion  has  been  made,  it  is 
fiojp^j[  to  observe,  that  upon  the  point  we  are  now  considering, 
^is.  ,  Avhether  a  contractor  verba  de  prcesenti,  without  solemni- 
sation, would  entitle  the  widow  to  dower,  the  Court  below  and  the 
Coiir-ti  of  Appeal  entertained  the  same  opinion.  The  Court  below 
<l6<5ici^d  the  case  on  the  special  ground  of  fraud,  because  the 
aliexi^i,tion  by  the  husband  had  been  made  per  fraudem  mediate 
Mt^^^^n  the  sentence  and  the  solemnisation,  for  the  purpose  of 
dete^.ting  the  claim  of  the  wife.  It  is  plain  that  they  would  not 
hav^o  taken  this  as  the  ground  of  decision  if  they  had  considered 
that;  the  husband's  seisin  after  the  contract,  and  before  the  solem- 
iiis^.ti  on,  would  have  entitled  the  wife  to  dower.  Both  the  Court 
belo^W-  and  the  Court  of  Appeal  agreed  therefore  in  this,  that  the 
seisxxx  of  the  husband  after  the  contract,  and  before  solemnisation, 
^0^1  d  not  support  a  claim  to  dower. 

*^^X"iins,  whose  authority  has  always  stood  deservedly  high  in 

OUT     CUourts,  states,  in  his  valuable  **  Treatise  on  the  Laws 

^;"^*^gland,*  and  in  conformity  with  the  *  above  decision,   [*  850] 

^^      if  a  man  seised  of  land  in  fee  make  a  precontract 

^.  ^*^^trimony  with  J.   S.  and  die  before  the  marriage  is  solem- 

Aed^    ghe  shall   not  have  dower,  for  she   never  was  his  wife. 

*^^s  been  supposed   that  this  might  have  been  the  case  of  a 

^^^'tra.ct  per  verba  de  future ;  but  it  is,  I  think,  manifestly  im- 

^^^il>le  to  put  such  a  construction  upon  the  passage.     It  would 

,  ^^     been  altogether   idle   to  have  made  such  a  statement  as  to 

^^    law,  for  it  never  was  and  never  could  have  been  supposed 

^^  a  mere  contract  per  verba  de  futuro  could  give  any  right  to 

^^r.     And  what  reason  is  there  for  making  so  strained  a  sup- 

^^ition,  where  the  law,  as  thus  stated,  conforms  with  the  decision 

^^  t^e  case  mentioned  by  Hale,  and  with  other  authorities  ? 

Perkins  further  goes  on  to  say,  that  it  was  holden  in  the  time 
^*  King  Henry  III.,  that  if  a  wife  was  married  in  a  chamber  she 


144  MABBIAGE. 


Ko.  2.  — Beg.  ▼.  XilliB,  10  Gl.  &  Fin.  MO,  861. 


should  not  have  dower  by  the  common  law ;  but  he  adds,  the  law 
is  contrary  at  this  day.  So  that  at  that  period  (the  reign  of 
Henry  III.)  it  appears  that  nothing  short  of  a  solemnisation  in 
facie  ecclesuB  would  entitle  a  woman  to  dower.  Fitzherbert's 
Natura  Brevium,  150,  is  to  the  same  effect :  *  A  woman  married 
in  a  chamber  shall  not  have  dower  at  common  law  •  16th  Hen. 
III.  Qticere,''  he  says,  "  if  marriage  made  in  chapels  not  conse- 
crated, &c.  ?  for  many  are  by  license  of  the  bishop  married  in 
chapels,  and  it  seemeth  reasonable  that  in  such  cases  she  shall 
have  dower. " 

I  pass  from  the  question  of  dower  to  that  of  legitimacy.  One 
of  the  earliest  cases  upon  the  subject  is  that  of  Del  Heith  (HarL 
MSS.  2117,  Rogers*  Ecc.  Law.  584),  so  frequently  mentioned, 
which  was  decided  in  the  24  Edw.  I.  It  was  as  follows : 
[♦  851]  John  Del  Heith,  brother  of  Peter  Del  Heith,  held  *  lands 
in  Bishopsthorpe  near  Norwich,  and  kept  a  woman,  named 
Katharine,  in  concubinage,  by  whom  he  had  two  children,  Ed- 
mund and  Beatrice.  Being  taken  ill,  he  was  advised  by  the 
Vicar  of  Plumstead,  for  the  good  of  his  soul,  to  marry  her.  As 
he  was  unable  to  go  to  church,  the  ceremony  was  performed  in 
his  own  house  by  the  Vicar,  when  the  said  John  Del  Heith  pro- 
nounced the  usual  words,  and  placed  a  ring  upon  her  finger ;  but 
no  mass  was  celebrated.  From  that  time  the  parties  lived  together 
as  man  and  wife,  and  had  another  son  called  William.  On  the 
death  of  John  Del  Heith,  his  brother  Peter  entered  upon  his  lands 
as  his  next  heir;  but  a  writ  of  ejectment  was  brought  by  the  said 
William  as  son  and  heir  of  the  deceased.  It  was  asked  on  the 
trial  whether  any  espousals  were  celebrated  between  his  parents  in 
the  face  of  the  church,  after  his  father  recovered  from  his  illness  ? 
And  because  it  was  not  proved  that  John  Del  Heith  was  ever 
married  to  Katharine  in  the  face  of  the  church,  the  jury  found 
that  the  plaintiff  had  no  right  to  the  lands ;  thus  proving  that  he 
was  illegitimate. 

FoxcrofVs  Case,  1  Roll.  Abr.  359,  which  occurred  in  the 
same  reign,  viz. ,  in  the  10th  Edw.  I. ,  is  to  the  same  effect  The 
marriage  not  having  been  solemnised  in  facie  ecclesice,  the  issue 
was  held  to  be  illegitimate.  These  cases  it  is  said  ought  to  be 
disregarded,  as  being  manifestly  contrary  to  law;  solemnisation 
in  fade  ecclesice  never,  as  it  is  assumed,  having  been  necessary  to 
the  validity  and  full  effect  of  a  marriage. 


R.  a  VOL.  xvil]  marriage,  145 

Ho.  2.  —  Beg.  ▼.  Xmii,  10  a  &/  Fin.  861-86S. 

Why  this  is  to  be  assumed,   in  opposition  to  these  express 
decisions,  it  is  not  very  easy  to  understand.     FoxcrofVs 
case  is  taken  from  Eolle's  Abridgment,  a  *work  always  [*852] 
held  in  great  estimation,  and  he  refers  to  the  Year  Book 
as  his  authority. 

The  case  is  cited  without  any  doubt  or  question  in  the  Digest 
of  Chief  Baron  Comyn,  and  in  other  similar  compilations  \  and  it 
was  quoted  as  an  authority,  though  for  a  different  purpose,  by 
Lord  Eldon  and  Lord  Ellenborough,  in  the  case  of  the  Banbury 
Peerage.  Upon  what  principle,  then,  is  it  to  be  assumed  that  in 
the  reign  of  Edward  L ,  marriage  in  fade  ecclesioe  was  not  con- 
sidered necessary  upon  a  question  of  legitimacy,  in  opposition  to 
these  decisions,  and  especially  when  we  find  it  stated  by  Perkins 
that  in  the  reign  of  Henry  VII.  it  was  essential  in  the  case  of 
dower ;  and  which  is  also  stated  by  Fitzherbert,  in  his  **  Natura 
Brevium  *  ?  When  the  Spiritual  Court  decreed  a  marriage,  it 
always  decreed  it  to  be  solemnised  in  facie  ecclesice,  and  every 
other   marriage  was  irregular  and  clandestine. 

Up«)n  this  question  of  legitimacy  it  is  material  to  observe,  that 
Goldingham,  one  of  the  civilians  called  in  for  the  assistance  of 
the  Court  in  Bunting's  case,  stated,  that  if  issue  be  born  after  the 
contract  of  marriage  (he  is  speaking  of  a  contract  per  verba  de 
prcesenti),  and  before  the  solemnisation,  such  issue  is  legitimate ; 
but  he  adds,  that  is  when  espousals  afterwards  take  place,  for  if 
espousals  do  not  succeed,  the  issue,  he  says,  bom  after  the  con- 
tract, will  be  illegitimate ;  and  this  was  not  controverted  by  the 
civilian  who  argued  on  the  other  sida  When  he  says  that  the 
issue  would  be  legitimate  if  espousals  afterwards  take  place,  he 
is  evidently  referring  to  the  doctrine  of  relation,  which  was  always 
rejected  by  our  law. 

Another  authority  to  the  same  effect  is  Godolphin,  who  states 
in  his  "  Eepertorium  Canonicum,  *  that  "  by  the  common 
law  he  or  she  that  is  bom  before   marriage  *  celebrated  [*853] 
between  the  father  and  mother,  is  called  a  bastard. " 

When  the  question  of  legitimacy  depended  on  the  lawfulness  of 
the  marriage,  it  was  tried  on  the  issue  of  ne  ungues  accouple  in 
loyal  matrimony ;  the  same  as  in  dower.  But  it  is,  I  think,  clear 
that  a  contract  per  verba  de  prcesenti,  without  solemnisation, 
would  not  entitle  the  wife  to  dower.  It  follows,  therefore,  that 
upon  the  issue  of  ne  ungues  accouple,  &c. ,  the  bishop  must,  in  a 

VOL.  XVII  —  10 


146  MABRIAGE. 


Ko.  2.  —Beg.  ▼.  MilliB,  10  CI.  &/  Fin.  863,  854. 


case  of  dower,  have  certified  against  the  marriage,  or  the  rule  of 
law  in  the  case  of  dower  must  have  been  defeated.  But  the 
issue  being  the  same  upon  the  question  of  legitimacy,  there  must 
have  been  the  same  certificate ;  and  as  the  certificate  is  conclusive, 
there  must  consequently  have  been  the  same  result 

In  the  case  of  Wickham^.  UnfeUd,  Cro.  Car.  351,  which  has 
been  cited,  the  bishop,  instead  of  the  usual  form  of  certificate, 
returned  that  the  parties  were  coupled  in  vera  matrimonio  sed 
clandestino.  The  Judges,  upon  exception  to  the  certificate, 
determined  it  to  be  sufl&cient  They  considered  verum  to  be 
equivalent  to  legitimum ;  for  they  were  all  one,'  it  was  said,  in 
intendment,  and  that  the  return  was  not  affected  by  the  addition 
of  clandestine.  The  finding  that  the  marriage  was  clandestine 
was  not  inconsistent  with  its  being  legitimum,  for  though  performed 
by  a  priest  it  might  still  have  been  clandestine. 

If  it  is  supposed  that  a  contract  per  verba  de  prcesenti  would 
confer  the  right  to  dower,  and  that  the  issue  would  be  legitimate, 
this  consequence  might  ensue :  Suppose  after  such  a  contract  the 
man  were  to  marry  another  woman  in  facte  ecclesice,  and 
[*854]  have  issue  and  *die,  the  second  wife  would  clearly  be 
entitled  to  dower.  Could  the  first  be  also  entitled  ?  There 
could  not  be  two  contemporaneous  marriages  with  the  same  mam, 
entitling  two  women  to  dower  and  out  of  the  same  estate.  Again, 
the  issue  of  the  second  marriage  would  be  clearly  legitimate.  If 
the  man  had  sexual  intercourse  with  the  first  woman  after  the 
second  marriage,  and  had  issue  by  her,  could  such  issue  be  legiti- 
mate ?  There  could  not  be  two  legitimate  children  of  the  same 
father,  bom  of  two  contemporaneous  marriages. 

There  is  another  distinction  between  a  contract  per  verba  di 
prcesenti  and  a  regular  marriage,  which  relates  to  their  effect 
upon  the  property  of  the  respective  parties :  "  If  a  contract  of 
marriage  be  between  a  man  and  a  woman,  yet  one  of  them  may 
enfeoff  the  other,  for  yet  they  are  not  one  person  in  law,  inasmuch 
as  if  the  woman  dieth  before  the  marriage  solemnised  between 
them,  the  man  unto  whom  she  was  contracted  shall  not  have  the 
goods  of  the  wife  as  her  husband,  but  the  wife  may  make  a  will 
thereof  without  the  agreement  of  him  unto  whom  she  was  con- 
tracted ;  but  after  the  marriage  celebrated  between  them  the  man 
cannot  enfeoff  his  wife,  for  then  they  are  one  person  in  law.* 
It  is  evident  that  Perkins  in  this  passage  is  speaking  of  a  contract 


E  C.  VOL  XVn.]  MARRIAGE,  147 

Ho.  2.  —Beg.  ▼.  Millie,  10  CI.  &/  Fin.  854-856. 

of  marriage  per  verba  de  prcesenti ;  and  this,  therefore,  is  another 
instance  of  the  different  legal  effect  of  such  a  contract  and  a  regular 
marriage. 

Lord  Hale,  at  the  conclusion  of  the  case  reported  by  him,  adds 
these  words :  "  Nota,  Neither  the  contract  nor  the  sentence  was  a 
marriage.*  By  which  he  may  perhaps  have  meant,  not  such  a 
complete  marriage  as  to  give  a  right  to  dower.  The  observation  of 
Perkins,  that  she  never  was  his  wife,  made  in  the  cases 
to  which  I  have  referred,  ought  perhaps  to  be  *  taken  with  [*  855] 
the  same  qualification.  Lord  Coke,  speaking  of  the  effect, 
after  the  death  of  the  husband,  of  what  he  calls  an  inchoate  mar- 
riage, says  it  shall  be  counted  a  lawful  marriage  qiboad  dotem. 

Another  and  a  very  important  circumstance  in  which  these 
irregular  marriages  differed  from  a  marriage  solemnised  according 
to  the  rites  of  the  church,  is,  that  neither  party  could  maintain  a 
suit  against  the  other  for  the  restitution  of  conjugal  rights.  The 
law  is  so  laid  down  by  Sir  Edward  Simpson,  in  the  case  of 
Scrimshire  v.   Scrimshire,   and  cannot,  I  think,  be  doubted. 

So  also  as  to  the  right  to  administer  to  the  effects  of  a  deceased 
wife,  a  contract  per  verba  de  prcesenti  has  been  considered  insuflS- 
cient  That  was  the  case  of  Haydon  v,  Gould,  1  Salk.  119. 
There  was  a  contract  per  verba  de  prcesenti,  and  the  parties  after- 
wards cohabited  as  man  and  wife  for  several  years ;  but  it  appear- 
ing that  the  person  who  performed  the  ceremony  was  not  in  orders, 
but  a  mere  layman,  which  was  known  by  the  parties,  the  letters 
of  administration  were  recalled  by  the  Court;  and  upon  appeal 
the  sentence  was  aflBrmed  by  the  delegates.  This  decision  does 
not  appear  to  have  been  ever  questioned.  It  is  cited  with  appro- 
bation by  Sir  William  Wynne,  and  referred  to  without  any 
doubt  as  to  its  soundness  by  Sir  John  Nicholl. 

It  was  argued  in  that  case  that  the  marriage  was  not  a  mere 
nullity;  that  it  was  irregular  only,  but  not  void;  that  it  was 
sufficient  by  the  law  of  nature,  though  the  positive  law  ordained 
that  it  should  be  by  a  priest  But  it  was  said  in  answer,  that  the 
man  demanding  a  right  due  to  him  by  the  ecclesiastical 
law,  must  prove  himself  *a  husband  according  to  that  [*856] 
law.  The  decision  in  this  case  is  another  instance  in 
accordance  with  those  which  I  have  already  mentioned  of  the 
civil  effects  of  a  regular  marriage  being  withheld  from  a  contract 
per  verba  de  proeeenti  not  duly  solemnised  according  to  the  rules 
of  the  ecclesiastical  law. 


148  MARRIAGE. 


Ko.  8.  — Beg.  ▼.  Millii,  10  GL  &  Tin.  856,  867. 


A  further  and  perhaps  the  most  essential  circumstance  in  which 
a  contract  'per  verba  de  prcesenti  diflfered  from  a  regular  and  perfect 
marriage,  is  that  to  which  I  have  already  adverted ;  viz. ,  that  if  a 
man,  after  having  entered  into  a  regular  marriage,  married  a 
second  time,  his  first  wife  living,  the  second  marriage  was  abso- 
lutely void,  and  the  issue  of  course  illegitimate.  But  where  the 
first  engagement  was  merely  a  contract  per  verba  de  prcesenti,  the 
second  marriage  was  only  voidable;  and  if  not  set  aside  during 
the  lifetime  of  the  parties  it  could  not  afterwards  be  questioned, 
and  the  issue  would  be  legitimate.  This  is  abundantly  clear  from 
the  passage  which  I  have  already  cited  from  Coke  Littleton,  as 
well  as  from  other  authorities. 

The  subsequent  decisions  of  the  Courts  of  common  law,  until 
we  come  down  to  comparatively  modem  times,  are  not  at  variance 
but  in  conformity  with  the  previous  authorities. 

In  Welde  v.  Chamberlaine,  2  Show.  300,  which  was  an  issue 
marriage  or  no  marriage,  a  contract  per  verba  de  prcesenti  was 
proved ;  but  the  doubt  suggested  was,  that  as  there  was  no  ring 
the  ceremony  was  invalid,  as  not  conforming  to  the  Book  of 
Common  Prayer.  Pemberton,  Ch.  J.,  inclined  to  think  that  a 
contract  per  verba  de  prcesenti,  repeated  after  the  parson 
[*  857]  in  holy  orders,  was  sufficient ;  but  he  reserved  *  the  point 
for  the  consideration  of  the  Court  It  is  obvious,  there- 
fore, that  a  mere  contract  per  verba  de  prcesenti  was  considered  in 
that  case  to  be  insufficient 

So,  in  Holder  v.  Dickeson,  1  Freent  95,  Vaughan,  Ch.  J., 
was  of  opinion  that  a  priest  was  necessary  for  the  marriage.  The 
other  Judges  did  not  diflfer  from  the  Chief  Justice  in  this  respect, 
though  they  considered  it  unnecessary  to  aver  qiu>d  obtulit  se  in  the 
presence  of  a  parson,  which  was  the  objection  made  to  the 
declaration. 

In  Paine's  Case,  1  Sid.  13,  it  was  said,  that  in  a  suit  for  dis- 
solving a  marriage  on  the  ground  of  precontract,  the  parties  con- 
tracting became  husband  and  wife  by  the  effect  of  the  sentence, 
without  further  solemnity;  and  Noy's  authority  was  cited  for  this 
position.  But  Twisden,  Ch.  J.,  denied  this,  and  said  the  mar- 
riage must  be  solemnised  before  they  could  be  completely  baron 
and  feme.  This  opinion  expressed  by  the  Chief  Justice  corre- 
sponds with  what  was  stated  in  BuntiTig's  case,  and  the  other 
more  ancient  authorities  upon  the  subject 


B.  C.  YOL.  XVn.]  MAKRIAGB.  149 

Ho.  8.  —Bag.  ▼.  imif,  10  GL  &  Tin.  867,  868. 

It  is  obvious  that  none  of  these  cases  impeaches  the  doctrine 
stated  both  by  the  ecclesiastical  and  temporal  lawyers,  as  to  the 
imperfect  efifect,  with  regard  to  its  civil  consequences,  of  a  con- 
tract of  marriage  per  verba  de  prassenti,  not  accompanied  or  fol- 
lowed by  due  solemnisation.  It  i^  not  immaterial  to  observe  that 
the  cases  occurred  before  the  Marriage  Act,  when  the  subject 
was  much  more  familiar  to  both  classes  of  lawyers,  ecclesiastical 
as  well  as  temporal,  than  it  has  been  since  the  change  introduced 
by  that  statute. 

I  have  come,  therefore,  to  this  conclusion,  that  although 
a  marriage  contracted  per  verba  de  prcesenti  *  was  indis-  [*  858] 
soluble,  —  though  it  could  not  be  released  even  by  the 
mutual  consent  of  the  parties,  —  though  either  of  them  might 
enforce  it,  and  compel  solemnisation,  —  though  it  had  the  efifect 
of  rendering  a  subsequent  marriage  solemnised  in  facie  ecclesice, 
even  after  cohabitation  and  the  birth  of  children,  voidable,  — 
though  it  was  considered  to  be  of  the  essence  and  substance 
of  matrimony,  and  was  therefore,  and  on  account  of  its  indis- 
soluble character,  styled  in  the  ecclesiastical  law  verum  matri' 
monium,  —  yet  by  the  law  of  England,  according  to  the  concurrent 
opinion  of  both  the  ecclesiastical  and  temporal  lawyers,  this 
irregular  and  looser  sort  of  marriage  did  not  confer  those  rights  of 
property,  or  the  more  important  right  of  legitimacy,  consequent 
on  a  marriage  duly  solemnised  according  to  the  rites  of  the  church. 
Whatever  name,  therefore,  is  given  to  the  connexion,  this  is,  T 
conceive,  a  correct  description  of  the  situation  of  the  parties  who, 
previously  to  the  Marriage  Act,  had  entered  into  a  contract  of  mar- 
riage per  verba  de  prcesenti,  not  followed  by  solemnisation. 

Various  questions  and  considerations  connected  with  this  sub- 
ject have  presented  themselves  in  the  course  of  these  discussions, 
and  to  which  I  shall  shortly  advert  First,  as  to  the  religious 
ceremony :  — 

It  appears  from  the  authorities  to  which  I  have  referred,  that 
It  was  formerly  considered  essential  to  the  full  effect  of  a  marriage 
that  it  should  be  solemnised  in  the  church.  The  ceremony  is 
^ell  known ;  it  had  been  in  use  for  many  hundred  years,  and 
corresponded  in  substance  with  the  present  form.  This  appears 
from  several  ancient  manuals,  particularly  those  of  Salisbury  and 
York,  which  are  still  in  existence.  The  rule  as  to  the  necessity 
of  a  public  celebration  was  afterwards  relaxed,  and  it  is  clear 


150  MABRIAGE. 


No.  2.  — Seg.  V.  Millis,  10  a  &  FiiL  869,  860. 


[*  859]  that  in  *  the  temporal  Courts  the  same  consequences 
attended  these  marriages  as  if  they  had  been  celebrated 
in  fade  ecclesicB.  I  of  course  except  the  case  of  dower  ad  ostium 
ecclesice,  which  depended  upon  a  particular  rule.  Such  marriages, 
however,  though  performed  by  a  person  in  holy  orders,  and  accord- 
ing to  the  rules  of  the  church,  were  considered  to  be  clandestine, 
and  subjected  the  parties  to  the  censures  of  the  church.  Two 
instances  are  mentioned,  in  which,  according  to  popular  tradi- 
tion, such  censure  was  pronounced;  viz.,  upon  the  marriage  of 
Sir  Edward  Coke  with  Lady  Hatton,  and  the  marriage  of  the 
Lord  Chancellor  Ellesmere.  In  the  former  case  the  censure  is 
said  to  have  been  slight,  the  parties  having  erred  from  ignorance 
of  the  law ;  but  in  no  case  of  this  sort,  where  the  marriage  cere- 
mony was  performed  by  a  person  in  holy  orders,  although  the 
parties  might  be  liable  to  ecclesiastical  censure,  were  they  ever 
compelled  to  repeat  the  ceremony  in  the  face  of  the  churcL  It  is 
obvious,  therefore,  that  such  marriages,  though  clandestine,  were 
considered  by  the  Ecclesiastical  Courts  to  be  complete  and  lawful 
marriages,  as  they  indisputably  were  by  the  Courts  of  common 
law.  Still,  however,  the  Spiritual  Court,  when  it  decreed  the 
performance  of  marriage,  always  decreed  that  it  should  be 
solemnise'd  in  the  face  of  the  church. 

A  question  has  been  raised  as  to  the  celebration  of  the  marriage 
ceremony  by  a  deacon ;  and  it  has  been  asked,  if  it  was  formerly 
required  that  the  ceremony  should  be  performed  by  a  person  in 
priest's  orders,  by  what  authority  this  change  was  introduced.  It 
appears,  by  reference  to  the  ancient  rituals,  that  formerly  the 
sacrament  was  administered  before  the  nuptial  benediction  was 
pronounced,  and  that,  as  this  could  only  be  administered 
[*  860]  by  a  priest,  his  presence  *  was  necessary.  Marriage  itself 
was  also,  by  the  mere  nature  and  force  of  the  contract, 
considered  to  be  a  sacrament;  and  the  solemnisation,  there- 
fore, by  a  priest,  might  on  this  ground  have  been  thought  neces- 
sary; but  when,  at  the  Reformation,  it  ceased  to  be  considered 
as  a  sacrament,  and  when  it  was  no  longer  required  that  the  sacra- 
ment should  be  administered  at  the  time  of  the  marriage,  there 
was  no  reason  why  the  ceremony  should  not  be  performed  by  a 
person  in  holy  orders  as  a  deacon. 

It  is  further  to  be  observed,  that  in  the  Act  of  Uniformity,  13th 
&  14th  Charles  II.,  it  is  expressly  enacted   that  certain  of  the 


^  C,  VOL.  XVII.]  MABRIAGS.  151 

No.  2.  —^^.  ▼.  Xillis,  10  GL  &  Fin.  860,  861. 

offices  contained  in  the  Book  of  Common  Prayer  shall  be  performed 
only  by  a  priest ;  thereby  constructively  admitting  that  the  other 
offices,  of  which  matrimony  is  one,  may  be  performed  by  a 
deacon. 

It  is  said  that  a  marriage  may  be  valid  though  not  performed 
by  a  person  in  holy  orders,  as  in  the  case  stated  by  Lord  Stowell, 
in  Hawhe  v.    Corri,  2  Hagg.  Cons.   Eep.   280 :  "  It  seems, "  he 
«ays,  "  to  be  a  generally  accredited  opinion,  that  if  a  marriage  is 
iad  by  the  ministration  of  a  person  in  the  church  who  is  osten- 
sibly in  holy  orders,  and  is  not  known  or  suspected  by  the  parties 
to  be   otherwise,  such  marriage  shall  be  supported.     Parties  who 
come   to  be  married  are  not  expected  to  ask  for  the  sight  of  the 
mini.ster's  letters  of  orders,  and  if  they  saw  them  could  not  be 
expected  to  inquire  into  their  authenticity. "     I  do  not  very  well 
understand  the  inference  intended  to  be  drawn  from  this  case.     It 
amounts  to  nothing  more  than  this,  that  where  the  law  requires 
the    rainistration  of  a  person  in  holy  orders,  if  a   man 
assumes  that  character  imder  such   circumstances   as  *  to  [*  861] 
impose   upon   those  who  require  his   ministration,   and 
they,   acting  fairly  and  ionSi  jide,  are  deceived  in  this  particular, 
the  Court  which  has  to  decide  on  the  validity  of  the  transaction, 
will    not  suffer  them  to  be  the  victims  of  imposition  and  fraud, 
but   'Will  decree   in  favour  of  the  marriage.     This  exception  can 
only  apply  in  cases  where,  by  the  general  rule  of  law,  the  service 
of  a  person  in  holy  orders  is  necessary ;  and  cannot,  therefore,  be 
properly  used  to  impeach  that  rule. 

Another  question  that  has  been  raised,  and  which  bears  imme- 
diately upon  the  judgment  of  the  Court  below,  is  this :  Assuming 
that  a  marriage  can  be  solemnised  only  by  a  person  in  holy  orders, 
^nether  a  Presbyterian  minister,  regularly  ordained  according  to 
tue  rules  of  the  Presbyterian  Church,  is  competent  to  perform  the 
cetemony  between  members  of  the  Established  Church,  so  as  to 
give  full  validity  and  effect  to  the  marriage  ? 

Holy  orders,  according  to  the  law  of  England,  are  orders  con- 
ferred by  episcopal  ordination.  This  was  the  law  of  the  Catholic 
Church  in  this  country,  and  the  same  law  continued  after  the 
Beformation  as  the  law  of  the  Episcopal  Reformed  Church,  dis- 
tinguished by  the  appellation  of  the  Church  of  England.  The 
mode  of  conferring  these  orders  is  prescribed  in  the  Act  of  Uni- 
formity, 2  &  3  Edw.   VL,  and  13  &  14  Chas.  11.     Similar  laws 


152  MABRIAGE. 

Ho.  8.  —  Seg.  ▼.  Killii,  10  OL  &  Fm.  861-868. 

were  passed  at  about  the  same  periods  in  Ireland,  for  the  regula- 
tion of  the  church  of  that  country,  which  was  founded  on  the 
same  principles  and  governed  by  the  same  rules  as  the  Church  of 
England.  A  marriage  celebrated  by  a  Eoman  Catholic  priest,  as 
in  Fielding's  Case  and  other  instances,  has  been  considered  valid. 

A  priest  of  the  Romish  Church  is  a  priest  by  episcopal 
[*862]  ordination,  *and  his  orders  are  accounted  holy  orders  by 

our  church.  If  he  conforms  to  the  Protestant  faith,  and 
is  presented  to  a  benefice,  no  new  ordination  is  necessary;  nor 
would  it,  indeed,  be  proper. 

The  two  churches  of  England  and  Ireland,  the  same  in  doctrine, 
in  ceremony,  and  in  discipline,  have  been  united,  and  the  same 
law  which  applied  to  each  church  in  its  separate  state  has  become 
the  law  of  the  united  church.  It  is  said  that  we  admit  the  valid- 
ity of  the  ordination  of  the  ministers  of  the  Church  of  Scotland, 
and  that  by  the  Act  of  Union  their  title,  as  legally  ordained 
ministers,  is  valid  in  every  part  of  the  empire.  As  respects  their 
reverend  character  that  certainly  is  so,  but  this  conveys  no  author- 
ity out  of  Scotland.  Holy  orders  in  England  still  mean  the  same 
thing  as  before  the  union  with  Scotland,  viz. ,  orders  conferred  by 
episcopal  ordination ;  and  what  is  required  to  be  done  by  a  min- 
ister in  holy  orders,  cannot  therefore  be  done  by  an  ordained 
minister  of  the  Scotch  church.  The  question  is  not  affected  by 
the  Toleration  Acts.  These  Acts  remove  penalties  and  disabilities ; 
they  confer  no  title..  The  claim  made  by  the  Presbyterians  in 
Ireland  cannot  be  supported  upon  any  principle  that  would  not 
apply  equally  to  every  denomination  of  dissenters.  I  respect  the 
character  of  the  Presbyterian  ministers  of  Ireland,  their  learning 
and  piety;  but  this  is  a  question  of  mere  legal  interpretation, 
which  must  be  determined  without  reference  to  the  character  or 
conduct  of  the  parties. 

The  view  I  have  taken  of  the  effect  of  a  marriage  contract  per 
verba  de  prcesenti  will  afiford  an  immediate  and  satisfactory  answer 

to  the  inference  attempted  to  be  drawn  from  different 
[*  863]  statutes  passed  *  with  reference  to  this  subject     I  allude, 

in  the  first  place,  to  the  statute  12  Chas.  IT.,  c.  33,  for 
confirmation  of  marriages  during  the  Commonwealth.  It  is  said 
that  if  a  contract  per  verba  de  pra^senti  be  an  actual  marriage,  what 
necessity  was  there  for  this  Act  ?  for  the  marriages  entered  into 
under  the  ordinance  were  of  this  nature.     Undoubtedly  that  is 


fi.  a  VOL.  XVII.]  MABBIAQE.  153 

Ho.  2.  'Seg.  ▼.  Killis,  10  a  &  Fin.  868,  864. 

80  ;  but  if  such  contracts  were  not  followed  by  all  the  consequences 

of   marriages  regularly  solemnised,  the  Act  was  obviously  neces- 

^^i*y>  Ai^d  it  accordingly  puts  these  marriages  on  the  same  footing 

as    inarriages  solemnised  according  to  the  rites  of  the  Church  of 

En^lond.     Equally  plain  is  the  explanation  of  the  clause  in  the 

8(at;ij.t:e,  by  which  the  validity  of  these  marriages  is  left  to  the 

decision  of  the  Temporal  Courts.     The  reason  is  obvious:  When 

tii&y    "Were  rendered  valid  and  binding  by  the  Act,  the  question  in 

eac^lx      instance  would  not  be  a  question  of  ecclesiastical  law,  but 

mex^el  J  whether  the  particular  case  ccune  within  the  provisions  of 

the    stiiAtute. 

riixe  same  observation  will  apply  to  the  reasoning  founded  on 

ib^    <iifferent  Acts  relating  to  marriages  celebrated  by  Presbyterian 

inii=^isters   in  Ireland  and   in   India.     But  then  it  must  also  be 

adrrxitted  that  these  Acts  would  have  been  unnecessary,  if  a  con- 

tiftot  jjer  verba  de  prcesenti  had  been  attended  with  the  same  civil 

riglxts   as  to  property,    &c.,    as  a  regular  marriage  solemnised 

acc^or^iing  to  the  rules  of  the  church.     I  place  very  little  stress 

upon  the  argument  that  has  been  founded  upon  the  form  of  certain 

oi  tlie'  statutes  relating  to  this  subject,  some  of  them  being  enact- 

itig  aud  others  declaratory.     They  appear  in  a  great  degree,  if  I 

^^y    so  express   myself,  to  neutralise  each  other;  and  many  of 

Item  are  wholly  inconsistent  with   the  notion  that  the 

^^ialature  considered  a  contract  per  *  verba  de  prcesenti  [*  864] 

to  have  the  full  effect  of  a  regular  solemnised  marriage. 

I  must  not  pass  over  the  observations  that  have  been  made  upon 
the  marriages  of  Jews  and  Quakers.  It  is  said  they  can  only  be 
supported  on  the  ground  of  their  being  contracts  per  verba  de 
frmenti,  or  de  futuro  followed  by  cohabitation. 

No  such  argument  can,  I  think,  be  justly  raised  from  the 
decisions  respecting  marriages  amongst  the  Jews.  They  are 
treated  in  those  decisions  as  a  distinct  people,  governed,  as  to  this 
subject,  by  their  own  religious  observances  and  institutions, 
among  which  marriage  is  included.  Speaking  upon  this  subject. 
Lord  Stowell,  in  the  case  of  Buding  v.  Smith,  2  Hagg.  Cons. 
Eep.  371,  observes  that  "  the  matrimonial  law  of  England  for  the 
Jews  is  their  own  matrimonial  law ;  and  an  English  Court  Chris- 
tian, examining  the  validity  of  an  English  Jew  marriage,  would 
examine  it  by  that  law,  and  that  law  only,  as  has  been  done  in 
the  cases  that  were  determined  in  this  Court  on  those  very  prin- 


154  MAHRIAGE. 


Ho.  2.~Seg.  ▼.  lOlliB,  10  GL  &  Fin.  864,  865. 


ciples. "     Such  are  the  admitted  grounds  of  decision  in  the  case  of 
Jewish  marriages. 

The  question  as  to  the  marriage  of  Quakers  is  of  more  diflScult 
solution.  In  the  case  so  frequently  referred  to,  before  Lord 
Hale,  that  learned  Judge  is  reported  to  have  said,  that  he  would 
not  on  his  own  opinion  make  their  children  bastards;  and  he 
directed  the  jury  to  find  a  special  verdict.  It  would  seem,  there- 
fore, that  the  inclination  of  his  opinion  was  against  the  validity 
of  the  marriage.  If  he  had  considered  a  contract  *per  verba  de 
prcesenti  to  have  been  suflBcient,  there  would  have  been  no  difiB- 
culty  in  the  case,  and  he  would  at  once  have  decided  accord- 
ingly. Burnet  states,  that  Hale  considered  "  all  mar- 
[*  865]  riages,  *  made  according  to  the  several  persuasions  of  men, 
ought  to  have  their  effects  in  law."  It  is  not  improb- 
able, therefore,  that  this  was  the  ground  on  which  he  refused  to 
decide  the  question.  Lord  Keeper  North,  no  mean  lawyer,  though 
full  of  religious  and  party  prejudices,  considered  the  point  too 
clear  for  doubt ;  and  observing  upon  the  course  pursued  by  Hale 
in  this  case,  made  it  the  ground  of  a  bitter  and  not  very  decent 
attack  upon  that  distinguished  Judge. 

In  a  case  mentioned  by  Mr.  Justice  Willes  in  Harford  v. 
Morris^  1  Hagg.  C.  Rep.  App.  9,  and  in  Woolston  v.  Scott,  Bull. 
N.  P.  28,  before  Mr.  Justice  Denison,  the  former  of  which  was 
the  case  of  a  marriage  between  Quakers,  and  the  latter  an  Ana- 
baptist marriage,  it  was  held  that  an  action  of  criminal  conversa- 
tion might  be  sustained.  Mr.  Justice  Buller,  in  commenting,  in 
his  "  Law  of  Nisi  Prius, "  on  the  latter  decision,  does  not  suggest 
as  the  ground  of  the  judgment  that  the  marriage  was  valid  as  be- 
ing a  contract  per  verba  de  presenti,  but  observes  that  it  had  been 
doubted  whether  the  ceremony  must  not  be  performed  according 
to  the  rites  of  the  church ;  but  as  this,  he  says,  is  an  action 
against  a  wrongdoer,  and  not  a  claim  of  right,  it  seems  sufficient 
to  prove  the  marriage  according  to  any  form  of  religion,  as  in  the 
case  of  Quakers,  Anabaptists,  Jews,  &c.  He  rests  this  class  of 
cases,  therefore,  upon  the  distinction  made  in  the  Courts  of  law 
between  a  claim  of  right  and  proceedings  against  a  wrongdoer. 

In  Green  v.  Green,  1  Hagg.  C.  Eep.  App.  9,  which  was  also 
the  case  of  a  Quaker  marriage,  it  was  considered  that  a  marriage 
according  to  the  forms  used  among  that  sect  was  not  sufficient  to 
support  a  suit  for  the  restitution  of  conjugal  rights. 


H.  c.  VOL-  xvil]  marriage.  155 

Ho.  8.  — Seg.  ▼.  Xmii,  10  a  &  Fin.  866,  867. 

•A  question  as  to  the  effect  of  those  marriages  arose  [*866] 
in  the  case  of  Haughton  v.  Haughton,  1  Moll.  611,  before 
Lord  Manners,    when   Chancellor  of  Ireland.     He   decided  in 
fevour  of  their  validity,  but  not  on  the  ground  of  a  contract  per 
verba  de  proesenti,  but  because  he  considered  that  they  were  in- 
cludei.  in  the  Irish  statute  21  &  22  Geo.  III.,  for  the  relief  of  dis- 
inters.    Quakers  are  excepted   from  the  Marriage  Act,  but  no 
ottk&i  dissenters;  and  being  put  in  this  respect  on  the  same  foot- 
ing" ^with  the  Jews,  it  is  not  an  unfair  inference  that  the  Legisla- 
^iix"e     intended  to  place  them  on  the  same  footing  with  respect  to 
t\k^±:xr  marriages,  and  thus  constructively  to  legalise  them.     This 
pro-%rision  in  the  Act  was  considered  by  Sir  William  Wynne,  in 
SyZ'^^^ra  v.  Alvarez,  ad  a  strong  recognition  of   the  validity  of 
tb^^^  marriages.     In  none  of  the  cases  is  it  rested  on  the  ground 
of        fclie    form    constituting   a    contract   per  verba    de   prassenti. 
Alt^l>.ough  these   marriages,    therefore,    may  afford   materials  for 
pt>I>X3.1ar  reasoning,  they  do  not,  I  think,  lead  to  any  certain  con- 
d^^sicn,  or  give  a  greater  effect  to  a  contract  per  verba  de  prcesenti 
t\va.xk    is  ascribed  to  it  by  the  authoritiea  to  which  I  have  before 
tef  ^x-red. 

T  abstain  from  referring  in  detail  to  the  convictions  for  bigamy 
itt  Ireland,  in  the  cases  of  marriages  not  authorised  by  the  Legis- 
lature, because  this  is  the  very  subject  of  the  present  appeal ;  but 
1  iTeely   admit  that  the   opinions  of  the  learned  Judges,  under 
'vhose  direction  these  convictions   occurred,  are   entitled  to  the 
greatest  consideration  and  respect. 

Several  modern  cases  have  been  referred  to,  in  which  the  question 
as  to  the  effect  of  a  contract  per  verba  de  prcesenti  has  been  more 
or  less  considered.     I  will  refer  to  them  in  their  order. 

•The  first  is  that  of  The  King  v.  The  Inhabitants  of    [*867] 

Brampton,  10  East,  282  (10  R.  R   299),  in  the  time  of 

Lord  Ellenborough.     In  that  case  the  marriage  was  publicly 

celebrated  by  a  person  ofQciating  as  a  priest,  in  a  chapel  in  the 

town  of  Cape  St  Nicola  Mole,  in  St.   Domingo.     What  Lord 

Ellenborough  said  upon  this  occasion  does  not  admit  of  dispute. 

His  words  were   these :  **  A  contract  of   marriage  per  verba  de 

prcesenti  would  have  bound  the  parties  before  the  Marriage  Act ; 

and  this  appears  to  have  been  per  verba  de  prcesenti,  and  to  have 

been  celebrated  by  a  priest;'  and,  after  alluding   to   Fielding's 

Case,  14  St  Tr.   1327,  he  adds,  "  There  is  this  further  circum- 


156  MiLRKIAGE. 


Ho.  8.— Bag.  ▼.  IfUUi,  10  OL  &  Tin.  867,  86S. 


stance,  that  the  ceremony  was  performed  in  a  public  chapel, 
instead  of  in  private  lodgings,  as  it  was  in  Mr.  Fielding's  Cast,"* 
All  this  is  perfectly  consistent  with  the  view  I  have  taken  of  this 
subject  In  the  case  of  Lautour  v.  Teesdahy  8  Taunt.  830,  2 
Marsh.  233  (17  R  R.  518),  the  marriage  ceremony  was  per- 
formed by  a  Roman  Catholic  priest  in  the  Black  Town,  at  Madras. 
This  case  was  the  same  in  principle  as  the  former,  except  that  the 
ceremony  here  was  performed,  not  in  a  chapel,  but  in  a  private 
room,  as  in  Fielding's  Case,  Chief  Justice  Gibbs,  a  very  acute 
lawyer,  stated  on  that  occasion,  but  unnecessarily,  —  for  the  cere- 
mony was  performed  by  a  priest,  —  the  broad  principle,  that  a 
contract  per  verba  de  proesenti  was  before  the  Marriage  Act  con- 
sidered as  an  actual  marriage ;  but  he  adds)  that  doubts  have  been 
entertained  whether  it  was  so  unless  followed  by  cohabitation. 
There  is  no  foundation  for  the  doubts  that  were  suggested  by  the 
Chief  Justice,  and  in  stating  the  general  position  he  did  not 
accompany  it  with  any  of  the  explanations  and  qualifica- 
[*  868]  tions  with  *  which  it  had  been  stated  by  Lord  Stowell  and 
other  eminent  civilians. 

In  Beer  v.  Ward,  which  was  an  issue  out  of  Chancery,  the 
same  position  was  stated  by  Lord  Tentekden,  an  extremely  cau- 
tious and  very  learned  Judge,  in  his  direction  to  the  jury.  But 
Lord  Eldon,  when  the  case  afterwards  came  before  him,  and 
whose  attention  had  been  frequently  directed  to  questions  of  this 
nature,  appears  from  the  shorthand  writer's  notes  of  the  case, 
which  I  have  carefully  read,  to  have  cautiously  abstained  from 
adopting  this  position,  and,  after  suggesting  some  other  points  for 
consideration,  directed  a  new  trial  to  be  had  at  the  bar  of  the 
Court  of  King's  Bench. 

It  may  be  proper  to  observe,  with  reference  to  this  last 
decision,  that  in  the  case  of  ITie  King  v.  The  Inhabitants  of 
Bathwick,  2  Bar.  &  Ad.  639,  the  Court  of  King's  Bench  seem  to 
have  considered  it  necessary  that  the  marriage  should  have  been 
celebrated  by  a  clergyman,  for  in  any  other  view  of  that  case  the 
points  in  controversy  must  have  been  wholly  immaterial.  Lord 
Tenterden  was  at  that  time  Chief  Justice  of  the  King's  Bench, 
and  after  consideration  delivered  the  judgment  of  the  Court 

In  the  case  of  Smith  v.  Maxwell,  1  Ry.  &  Moo.  N.  P.  80, 
before  Lord  Wynford,  the  only  question  was.  whether  in  Ireland 
a  marriage  in  a  private  house  was  valid.     The  marriage  ceremony 


R.  a  VOL.  XVII.]  MARRIAGE.  157 

Ho.  8.— Bag.  ▼.  llilliB,  10  a  &  Fin.  868-«70. 

was  performed  by  the  curate  of  the  parish,  and  the  learned  Judge 
decided  that  such  a  marriage  was  legal,  and  that  it  need  not  be 
celebrated  in  the  church.     To  the  same  effect  was  the  judgment 
o£  Sir  John  Nicholl,  in  Steadman  v.  Powell^  1  Addams,  8. 

In  *  Ireland,  he  says,  marriage  may  be  had  without  any  [*  869] 

calibration  in  facie  ecclesice  or  in  the  presence  of  witnesses. 

^^^    celebration  in  facie  ecclesice,  he  obviously  meant  in  a  church 

iti         contradistinction   to  a  private  house,  where  the  marriage  in 

?"«^^stion  in  that  case  was  performed.     Lyndwoode's  explanations 

^^    fciie  terms  in  facie  ecclesioe  is  this,  "  in  conspectu  eeclesias,  populi 

^f^'^^^^^L^^et  congregati  in  ecclesid, "     The  main  point  in  controversy  in 

*^^^        case   of  Steadman  v.    Powell  was  whether  the  priest  who 

P^^  -Toraied  the  ceremony  was  a  Eoman  Catholic. 

"^E^lie  opinion  of  Lord  Eldon,  in  the  case  of  iTAdam  v.  Walker^ 
1  -I^^^ow,  148  (14  E.  R  36),  was  pronounced  in  a  Scotch  case,  and 
^'-^"^^iously  had  reference  to  the  law  of  that  country. 

^^  I  may  refer  to  the  opinion  of  the  several  eminent  lawyers, 

^^"^1:^  of  the  Ecclesiastical  and  Civil  Courts,  who  were  consulted 

^E^^^>^»a  the  subject  of  marriages  in  India  performed  by  ministers  of 

^"-^     Oiurch  of  Scotland,  it  will  be  found  that  they  all  concurred 

^    stating  that  those  marriages  were  not  to  all  purposes  legal  mar- 

^^"^^^s,  but  that  they  were  binding  upon  the  parties,    so   that  a 

^^^^cquent  marriage  by  either  during  the  life  of  the  other,  with 

*    'tti.ird  person,  would   be  invalid.     To  this  opinion   I  entirely 

-t  fully  admit  the  learning,  ability,  and  experience  of  the 
s^^^xal  distinguished  Judges  to  whom  I  have  thus  referred :  but 
^-■^^^i^  the  explanations  which  I  have  given,  I  do  not  see  suflBcient 
S^^^'^^.nd  in  these  opinions  to  lead  me  to  change  my  view  of  this 
®^*^Ject,  agreeing  as  it  does  with  what  has  been  laid  down  by  the 
^^^^^ti  eminent  civilians,  and  with  the  corresponding  decisions  of 
^"^^   0)urte  of  common  law  from  the  earliest  period  of  our  history. 

I      have  been  led,  in   consequence   of   the   range  that 

^  *^^s  been  taken  in  these  discussions,  and  the  great  and  [*  870] 

ii^iportant  interests  which  they  involve,  to  enter  into  the 

consideration  of  this   subject  more  extensively  than  is  perhaps 

B^cessary  for  the  decision  of  the  question  immediately  before  your 

^^dships.     The  immediate  point   for  decision  is,  whether  the 

Sftlendant  Greorge  Millis  is,  under  the  circumstances  stated  in  the 

Blfecial  verdict,  guilty  of  the  crime  of  bigamy.     The  marriage  in 


158  MARRIAGE. 


Ho.  8.  —Reg.  ▼.  Millii,  10  01.  &  lin.  870,  871. 


Ireland,  which  is  the  first  marriage,  is  not  rendered  valid  by 
statute,  one  of  the  parties  being  a  member  of  the  Established 
Church.  If,  therefore,  it  was  not  celebrated  by  a  person  in  holy 
orders,  according  to  the  metming  of  those  terms  in  the  law  of 
England,  it  can,  I  think,  operate  only  as  a  contract  per  verba  de 
prcesenti;  and  the  question  will  be,  whether  such  a  contract  is 
sufl&cient  to  support  the  indictment  And  upon  this  point,  I 
confess  I  should  feel  great  diflSculty  in  dissenting  from  the  opinion 
of  the  Queen's  Judges,  as  expressed  by  the  learned  Chief  Justice. 
"  If,"  he  says  (ante,  p.  89),  "  a  marriage  per  verba  de  prmsenti 
without  any  ceremony  is  good  for  the  first  marriage,  it  is  good 
also  for  the  second ;  but, "  he  adds,  "  it  never  could  be  supposed 
that  the  Legislature  intended  to  visit  with  capital  punishment 
(for  the  offence  would  be  capital  if  the  plea  of  clergy  could  be 
counter-pleaded)  the  man  who  had  in  each  instance  entered  into  a 
contract  ^er  verba  de  pra^seriti,  and  nothing  more. " 

But  independently  of  this  consideration,  it  is  material  upon 
this  part  of  the  subject  to  advert  again  to  the  efifect  of  such  a  con- 
tract. Let  me  suppose  a  contract  of  marriage  per  verba  de  prmsenti, 
and  a  subsequent  marriage  duly  solemnised  by  the  same  man  with 
another  woman.  The  woman  dies,  —  the  marriage  be- 
[*871]  comes  binding,  and  the  issue  legitimate.  How  can  *a 
prosecution  for  bigamy  be  sustained  for  entering  into  a 
marriage  which  the  law  recognises,  and  will  not  suffer  to  be 
annulled?  But  if  an  indictment  could  not  under  such  circum- 
stances be  maintained,  neither  could  it,  I  conceive,  during  the  life 
of  the  woman;  for  the  guilt  or  innocence  of  the  husband  could 
never  be  made  to  depend  upon  the  accident  of  her  life  or  death. 

I  may  further  observe  to  your  Lordships,  that  it  seems  never  to 
have  occurred  to  any  one,  in  suits  to  annul  a  marriage  by  reason 
of  precontract,  to  suggest  that  the  party  had  been  guilty  of 
bigamy.  There  is  no  trace  of  any  such  intimation ;  and  yet  in 
every  one  of  these  cases,  if  a  contract  per  verba  de  prcesenti  were 
suflBcient  for  this  purpose,  that  offence  must  have  been  com- 
mitted. 

But  there  is  another  diflBculty  in  the  way  of  the  prosecution  in 
this  case,  arising  out  of  the  change  introduced  into  the  law  of 
Ireland  by  the  statute  58  Geo.  III.,  c.  81.  It  is  thereby  enacted, 
"  That  in  no  case  whatsoever  shall  any  suit  or  proceeding  be  had 
in  any  Ecclesiastical  Court  in  Ireland,  in  order  to  compel  a  cele- 


B.  C.  VOL-  XVn.]  MAERIAGK  159 

Ho.  8.  —^^^  ▼.  Killii,  10  CL  &  Fin.  871-878. 

Oration  of  any  marriage  in  facie  ecclesicBy  by  reason  of  any  con- 
tract of  matrimony  whatever,  whether  ^er  verba  de  prcesenti  oi  per 
verbob  de  futuro,  which  shall   be  entered  into  after  the  end  and 
expiration  of  ten  days  next  after  the  passing  of  this  Act "     This 
cl^iuse  is  copied  from  the  13th  section  of  the  English  Marriage 
Act^       The  effect  of  this  statute  has  been  to  change  entirely  the 
cliajra.cter  of  a  contract  per  verba  de  prcesenti,  at   least  as  to  its 
temf>cral  effect      It  is  no   longer  indissoluble;    solemnisation 
caiuncDt  be  enforced ;  it  has  no  longer  the  effect  of  avoiding 
a  sxifesequent  marriage  solemnised  in  facie  *  ecclesioe,  but  [*  872] 
suoln.    marriage  is  from  the  time  of  its  celebration  valid  and 
binding,  and  accompanied  with  all   the  civil  consequen.es  of  a 
reguilfiir  and  perfect  marriage.     How  then  can   such  a  marriage, 
wh^icsln  the  law  sanctions,  and  the  obligations  of  which  it  enforces, 
constiitute  the  crime  of  bigamy  ?    In  this  offence  it  is  the  second 
ma^rxriage  that  is  the  criminal   act;    such   marriage   is  a   mere 
n^Hitiy ;  it  is  simply  void,  and  so  completely  void  that  the  woman 
in*-y   te  examined  as  a  witness  against  the  person  with  whom  she 
has    gene  through  the  ceremony  of  marriage.     But  in  the  case  of 
a  ^ontjact  per  verba  de  prwsenti,  followed  by  a  subsequent  marriage 
witilx    another  person  duly  solemnised,  the  second  marriage  is,  on 
th®  Contrary,  by  the  law  of  Ireland,  legal  and  binding. 

-*-^  cannot,  I  think,  be  contended,  at  least  with  any  effect,  that 
as  tlx^  j^Q^  jjj  ^^  terms  only  prevents  a  proceeding  to  enforce  the 
I**^oi-niance  of  the  marriage  contract,  a  suit  may  still  be  insti- 
^<i  for  annulling  a  subsequent  marriage  solemnised  in  fade 
^^^^^Z4B.  It  is  not,  I  think,  very  reasonable  to  suppose  that  such 
couicl  have  been  the  intention  of  the  Legislature.  For  what  pur- 
pose  could  such  a  proceeding  be  had,  unless  with  a  view  of 
enfox^eing  the  performance  of  the  first  contract,  which  the  statute 
declares  shall  no  longer  be  done  ? 

^ir  William  Blackstone  appears  to  have  entertained  the  same 
^P^f^ion  upon  the  construction   of  the  English   Marriage    Act, 
^^^clx  contains  precisely   the   same  provision;    and    from   that 
V'lttie  to  the  present,  a  period  of  nearly  a  century,  no  such  suit  has 
^^^^  been  instituted,  or,  as  far  as  I  can  learn,  ever  contemplated. 
1  am  of  opinion,  therefore,  after  much  anxious  consideration, 
lot  the  reasons  and  upon  the  grounds  which  I  have  thus 
BUted  to  your  Lordships,  but  at  the  *  same  time  with  all  [*  873] 
due  deference  and  respect  for  those  who  differ  from  me  on 


160  MABRUGK 

Hoi.  1,  8. — Dalzympld  ▼.  JkhjmjiU ;  Bag.  t.  IGDii. — Hatet. 

this  subject,  that  the  indictment  against  the  defendant,  Geoige 
Millis,  cannot  be  sustained. 


[907]  It  was  ordered  and  adjudged  by  the  Lords,  that  the 
judgment  given  in  the  said  Court  of  Queen's  Bench  be, 
and  the  same  is  hereby  affirmed.  And  that  the  record  be  re- 
mittted,  to  the  end  such  proceedings  may  be  had  thereupon  as  if 
no  such  writ  of  error  had  been  brought  into  this  House. '  —  Lords' 
Journals,  29  March,  1844 

The  entry  on  the  Minutes  of  Proceedings  of  the  29th  March  is 
more  full  than  the  entry  on  the  Journals,  and  is  in  the  following 
form :  "  Beg.  v.  Millis  (Writ  of  Error).  The  order  of  the  day 
being  read  for  the  further  consideration  of  this  case,  the  House 
proceeded  to  take  the  same  into  consideration.  And  it  being 
moved  to  reverse  the  judgment  complained  of,  the  same  was 
objected  to,  and  the  question  was  put  whether  the  judgment  com- 
plained of  shall  be  reversed  ?  The  Lords  Cottenham  and  Campbell 
were  appointed  to  tell  the  number  of  votes;  and,  upon  report 
thereof  to  the  House,  it  appeared  that  the  votes  were  equal ;  that 
is,  two  for  reversing  and  two  for  affirming.  Whereupon,  accord- 
ing to  the  ancient  rule  in  the  law  Semper  prcesumitur  pro  negante, 
it  was  determined  in  the  negative.  Therefore  the  judgment  of 
the  Court  below  was  affirmed,  and  the  record  remitted. " 

In  the  case  of  The  Queen  v.  Carroll,  the  Order  of  the  House 
states  that,  "  regard  being  had  to  the  judgment, "  in  The  Queen  v. 
MUlis,  the  judgment  of  the  Court  of  Queen's  Bench  was  affirmed. 

ENGLISH  NOTES. 

The  question  as  to  what  —  apart  from  express  statute  and  local  usage 
—  constitutes  a  marriage  in  the  sense  of  the  word  recognised  in  Chris- 
tian countries,  is  still  sometimes  of  great  practical  importance.  The 
two  cases  above  given  contain  all  the  learning  on  this  question  contrib- 
uted by  the  highest  authorities  from  the  English  point  of  view;  and 
as  they  constitute  the  ground-work  of  the  arguments  in  all  the  more 
recent  cases  on  the  subject,  it  has  been  thought  useful  to  set  them  out 
fully.  Many  of  the  more  recent  cases  relating  to  this  and  analogous 
questions  have  been  already  set  forth  or  dealt  with  in  previous 
volumes.  See  Kos.  7  and  8  of  "  Conflict  of  Laws,"  and  notes,  6  R.  C. 
783-832;  Nos.  9  and  10  of  ''  Conflict  of  Laws,"  and  notes,  5  R.  C. 
833-847;  and  Ko.  1  of  ''Husband  and  Wife,"  and  notes,  12  R.  C. 
729-738. 


H.  C.  VOL.  XVn.]  MAERIAGE.  161 

Hot.  1,  8.  —  Dalrymple  v.  Dalrymple ;  Seg.  v.  XUIib.  —  Hotet. 

With  regard  to  Reg.  v.  Millis,  it  is  to  be  borne  in  mind  that  the 
^tual  decision,  in  effect  giving  the  benefit  to  the  defendant  on  a  crim- 
inal charge  of  an  equal  division  of  opinion  among  the  Lords  advising 
tie  House,  is  of  little  importance  except  in  a  Court  bound  by  it.x  The 
drguznents  upon  either  side  must,  however,  be  taken  account  of  by  the 
Courts    in  any  country  where  English  law  may  be  presumed  to  have 
been  carried,  and  where  the  Courts  are  not  bound  by  the  decision. 

Tlie    decision  has  been  regarded  by  the  House  of  Lords  as  binding 
on  themselves  (as  well  as  on  inferior  Courts).     It  was  so  expressly 
ruled    in  the  case  of  Beamish  v.  Beamish  (1861),  9  H.  L.  Cas.  274, 
8  Jar.    (^,  S.)  770,  5  L.  T.  97,  where  the  question  arose  as  to  the  legiti 
inac3r  of  a  child  born  of  a  marriage  celebrated  in  Ireland  (before  the 
Act  o£    1844  below  mentioned),  between  a  person  who   himself  was  a 
clergynaan  in  holy  orders  and  a  young  lady,  without  the  presence  of  any 
othex'  person  in  holy  orders ;  and  the  House  of  Lords  on  the  authority 
of  J^^(/^  V.  Millis  pronounced  against  the  legitimacy.     Lord  Campbell, 
tfho  Was  then  Lord  Chancellor,  took  the  occasion  of  reinforcing  some 
oi  his  arguments  against  the  principle  of  the  decision  in  Reg,  v.  MUlisy 
and  Lord  Wensleydale,  while  agreeing  that  the  decision  in  Reg,  v. 
JfilZis  \|ras  irrevocably  binding  on  the  House,  took  occasion  to  express 
the  difficulty  he  had  experienced  in  yielding  to  the  opinion  of  the 
^ority  of  his  colleagues  which  had  been  delivered  by  the  Lord  Chief 
Justice  (Tindal)  in  that  case.     The  rule  that  the  House  is  bound  by 
its  own  judgments  on  a  point  of  law  as  thus  exemplified  is  again  ex- 
pressly laid  down  and  followed  in  London  Tramways  Co,  v.  London 
County  Council  (H.  L.),  1898  A.  C.  375,  67  L.  J.  Q.  B.  559. 

The  decision  in  Reg,  v.  Millis  led  to  the  passing  of  the  Irish  Act  of 
1844  (7  &  8  Vict.,  c.  81),  which  placed  the  marriage  of  Presbyterians 
and  other  bodies  in  Ireland  not  recognising  a  priesthood  on  a  statutory 
basis.  This  Act,  which  imposed  on  some  of  the  dissenting  bodies  re- 
strictions which  were  deemed  grievances,  was  amended  by  26  Vict., 
c  27;  and  both  these  Acts,  along  with  the  Act  33  &  34  Vict.,  c.  110, 
ss.  32-42,  and  34  &  35  Vict.,  c.  49,  constitute  the  statutory  basis  of  the 
existing  law  of  marriage  in  Ireland. 

The  statutory  law  relating  to  England  is  now  substantially  com- 
prised in  the  Acts  of  1823,  4  Geo.  IV.,  c.  76  (which  repealed  Lord 
Hardwicke's  Act  of  1753) ;  1836,  6  &  7  Will.  IV.,  c.  85  ;  and  1856,  19 
&  20  Vict.,  c.  119,  8.  11.  Other  Acts  relating  to  special  points  will  be 
found  enumerated  in  the  second  schedule  to  the  Short  Titles  Act,  1896, 
under  the  collective  title,  ''The  Marriage  Acts,  1811  to  1886." 

In  Scotland,  since  the  case  of  Dalrymple  v.  Dalrgmple,  and  the 
«a«e  of  McAdam  v.  Walker  (H.  L.  1813),  1  Dow.  148,  14  B.  B.  36, 
decided  by  the  House  of  Lords  on  appeal  from  the  Scotch  Court  in  an 

VOL.  XVII. —11 


162  MABRIAGE. 


Km.  1,  2.  —  IHdrymple  v.  Dalxymple;  Beg.  ▼.  HiUis. — Notes. 

action  for  declaration  of  marriage,  it  has  not  been  doubted  that  consent 
de  proesenti  constitutes  a  valid  marriage,  without  the  necessity  of  any 
minister  of  religion  or  ceremony.  The  consent  must  of  course  be  delib- 
erate and  serious,  and  must  be  proved  by  the  presence  of  witnesses  or 
by  the  writing  or  oath  in  litem  of  the  person  charged  with  it.  In 
order  to  presume  the  consent  by  copula  following  upon  a  promise  of 
marriage,  the  promise  must  likewise  be  proved  by  the  admission  in 
writing  or  oath  of  the  party  charged.  The  consent,  or  promise,  as  the 
case  may  be,  must  be  exchanged  or  made  in  Scotland;  but  the  writing 
by  which  it  is  proved  may  be  made  anywhere.  Yelvert(m  v.  Longworth 
(H.  L.  1864),  4  Macq.  745,  per  Lord  Wensleydale,  p.  861. 

Such  marriages  as  above  mentioned  are,  in  Scotland,  accounted 
clandestine  or  irregular  unless  celebrated  (1)  after  due  proclamation  of 
banns  or  (as  an  alternative  introduced  by  Statute  41  &  42  Vict.,  c.  43) 
on  production  of  the  registrar's  certificate;  and  (2)  \>y  a  minister  of 
religion.  The  latter  condition,  which  at  one  time  was  confined  to  min- 
isters of  the  Established  Church  of  Scotland,  was  extended  to  ministers 
of  all  denominations  by  4  &  6  Will.  IV.,  c.  28.  There  are  various 
enactments,  imposing  penalties  upon  persons  contracting  or  assisting 
at  irregular -marriages;  but  it  does  not  appear  that  anybody  is  con- 
cerned to  enforce  them. 

As  to  the  essentials  of  a  Scotch  marriage,  there  has  never  been  any- 
statutory  alteration,  except  by  Lord  Brougham's  Act  (1856),  19  &  20 
Vict.,  c.  96,  which  enacted  that  an  irregular  marriage  contracted  ia 
Scotland  should  not  be  valid  unless  one  of  the  parties  had,  at  the  date 
thereof,  his  or  her  usual  place  of  residence  in  Scotland  for  21  days  next 
preceding  the  marriage. 

The  effects  of  a  marriage  on  board  a  British  man-of-war  on  the 
high  seas,  and  at  the  British  Embassy,  have  already  been  adverted  to, 
12  R.  C.  737.  On  this  subject  Sir  Howard  Elphinstone,  in  an  article 
entitled  "Notes  on  the  English  Law  of  Marriage,"  Law  Quarterly 
Review,  vol.  5,  p.  52,  says:  "It  should  perhaps  be  observed  that  a 
marriage  at  the  British  Embassy  at  Paris  is  not  recognised  as  valid  by 
the  law  of  France  if  one  of  the  parties  is  not  a  British  subject.  And 
the  Royal  Commissioners  on  the  Law  of  Marriage  are  of  opinion 
(p.  xxxviii)  that  a  marriage  celebrated  in  the  house  or  chapel  of  a 
foreign  ambassador  accredited  to  Her  Majesty,  between  a  British  subject 
and  a  subject  of  a  foreign  power  represented  by  the  ambassador,  not  ful- 
filling the  requisites  of  British  law,  could  not  be  recognised  as  legally 
binding  upon  the  British  subject  for  civil  purposes  in  this  country." 

The  following  observations  of  the  learned  writer,  in  the  same  article, 
as  to  consular  marriages  and  other  marriages  in  various  situations,  are 
deserving  of  attention:    "By  the  efEecf    (he  says)    *'of  12  &   13 


B.  a  VOL.  xvn.]  makeiagb.  163 

Kot.  1,  2.  —  Dalzymple  t.  Balzymple ;  Seg.  ▼.  mUii.  — Ifotes. 

Vict.,  c.  68,  as  amended  by  31  &  32  Vict.,  c.  61,  marriages  between 
persons  one  of  whom  at  least  is  a  British  subject,  celebrated  after 
certain  notices  by  or  in  the  presence  of  a  consul-general  or  consul  duly 
authorised  in  that  behalf  by  the  Secretary  of  State,  and  any  person 
acting  or  legally  authorised  to  act  in  the  place  of  such  consul,  or,  if 
there  be  no  resident  British  consul,  any  vice-consul  or  vice-consular 
agent  duly  authorised  in  that  behalf  by  the  Secretary  of  State,  are  valid. 
It  should  perhaps  be  observed  that  with  the  possible  exception  of  cases 
where  the  law  of  the  country  in  which  the  consulate  is  situated  affords 
no  means  by  which  the  parties  can  go  through  the  form  of  marriage, 
marriages  of  this  nature  would  probably  be  considered  void  in  all  places 
outside  the  British  dominions,  unless  perhaps  both  of  the  parties  were 
British  subjects.  See  the  Appendix  to  the  Breport  of  the  Boyal  Com- 
mission on  the  Laws  of  Marriage,  pp.  191-193." 

''I  can  find  no  authority  on  the  subject  of  marriages  on  board  ship 
(not  being  a  man-of-war).  The  Merchant  Shipping  Act,  17  &  18 
Vict.,  c.  104,  contemplates  marriages  taking  place  on  board  British 
merchant  ships,  as  it  makes  provision  for  their  being  entered  on  the 
official  Log-book  (s.  282),  and  for  their  being  contained  in  the  return 
directed  to  be  made  in  certain  cases  to  the  Board  of  Trade  (s.  273).'' 

''It  is,  I  think,  clear  that  a  marriage  on  a  British  man-of-war,  or  on  a 
British  merchant  ship,  celebrated  on  the  high  seas  in  the  presence  of  a 
priest,  is  valid  ;  possibly  in  some  cases  such  a  marriage  contracted  per 
verba  de  prcesenti  without  the  intervention  of  a  priest  may  be  valid 
according  to  the  doctrine  of  Maclean  v.  Cristall."     (See  post.) 

In  the  article  already  mentioned.  Sir  Howard  Elphinstone  further 
considers  the  question,  —  How  may  persons  contract  a  Christian  mar- 
riage, where  it  is  impossible  for  them  to  satisfy  the  forms  prescribed 
for  Christian  marriage  by  the  law  of  the  place  where  the  marriage  takes 
place,  or  where  they  are  in  a  heathen  country  where  no  forms  are  pre- 
scribed for  a  Christian  marriage  ?  The  general  answer  to  this  question 
is  that  in  such  a  case  the  marriage  is  good  if  it  is  good  according  to 
the  canon  law.  Thus  it  has  been  held  that  a  marriage  between  Pro- 
testants performed  by  a  clergyman  of  the  Church  of  England,  in  the 
Pontifical  States  (where  no  provision  existed  by  law  for  such  mar- 
riages), wa»  valid.  Anon,  (said  to  be  Lord  Cloncum/s  Case),  Cruise  on 
Dignities,  276,  §  85.  "Probably"  (Sir  H.  Elphinstone  observes)  *'a 
marriage  per  verba  de  prcesenti  between  Protestants  in  the  pontifical 
states  would  have  been  valid.  See  the  Minutes  of  Evidence  in  the 
Sussex  Peerage  Case.  On  the  same  principle  marriages  between  Jews 
celebrated  according  to  Jewish  rites  in  England  have  been  supported. 
Goldsmid  v.  Bromer,  1  Hagg.  C.  R.  324  ;  Linda  v.  Belisario,  1  Hagg. 

C.  E.  216;  HAguUar  v.  J^AgnUar,  1  Hagg.  E.  B.  773." 


164  MARRIAGE, 


Not.  1,  8.  — Dalxymplo  v.  Balxymplo ;  Beg.  v.  lliUii.  —  Notes. 

It  is  impossible  to  discuss  fully  the  questions  of  this  kind  which 
may  arise  in  the  British  Colonies  and  dependencies;  but  it  seems 
clear  that  in  the  circumstances  of  some  of  those  colonies  and  depend- 
encies there  is  room  for  the  application  of  the  canon  law  upon  the  prin- 
ciple above  mentioned. 

It  is  to  be  borne  in  mind  that,  in  those  places,  the  Courts  are  not, 
nor  is  the  Judicial  Committee  of  the  Privy  Council  to  whom  these 
decisions  may  be  appealed,  hound  by  the  decision  of  the  House  of 
Lords  in  Reg.  v.  Millis  ;  but  the  Courts  will  of  course,  if  possible,  avoid 
a  direct  conflict  with  that  decision.  The  cases  of  Maclean  v.  Cristall 
(1849  coram  Sir  E.  Perry),  Perry  Oriental  Cases,  p.  75;  and  ConoUy 
V,  Woolrich  (1867),  11  Lower  Canada  Jurist,  197,  are  notable  in- 
stances. In  both  these  cases  the  judges,  while  freely  criticising  the 
decision  in  Reg,  v.  MlllUf  found  reasons  why  it  should  not  apply, 
from  the  circumstances  of  the  community  in  question,  under  which  it 
could  not  be  presumed  that  the  English  settlers  in  taking  the  English 
common  law  with  them  should  have  taken  with  them  the  rule  (if  it  ex- 
isted), that  marriage  must  be  celebrated  by  a  priest  or  person  in  holy 
orders.  The  former  of  these  cases  was  that  of  a  marriage  in  British 
India  before  the  statute  which  regulated  marriages  in  India;  and  the 
latter  case  was  that  of  a  marriage  contracted  by  a  Canadian  in  the 
Hudson  Bay  Territory  with  a  squaw,  and  treated  as  a  valid  marriage 
by  habit  and  repute  for  many  years. 

That  English  settlers  in  a  new  country  carry  with  them  only  so 
much  of  English  law  as  is  applicable  to  their  situation  is  the  proposition 
of  Blackstone  cited  by  Lord  Brougham  in  delivering  the  judgment  of 
the  Privy  Council  in  Mayor  of  Lyons  v.  EaM  India  Co,  (1836),  1 
Moore  Ind.  App.  175.  This  principle  was  applied  by  Dr.  Lushington  in 
CaUeraU  v.  Catterall  (1847),  1  Eob.  E.  C.  580,  to  the  condition  of  the 
early  settlers  in  New  South  Wales,  and  by  Sir  E.  Perry  in  Maclean  v. 
Cristall^  supra,  to  the  condition  of  the  English  community  in  India 
in  the  time  of  the  Company.  The  judgment  of  Sir  E.  Perry  appears 
to  have  treated  the  question  in  India  irrespective  of  the  question 
whether  the  services  of  an  English  chaplain  were  or  were  not  practically 
available.  The  point  was  that,  having  regard  to  the  circumstances  of 
the  community  in  its  origin,  they  could  not  have  brought  with  them 
any  such  rule.  The  decision  in  Maclean  v.  Cristall  was,  in  effect,  con- 
firmed by  the  proceedings  in  the  House  of  Lords,  in  a  bill  for  divorce 
subsequently  brought  into  that  House.  See  note,  Perry's  Or.  Cas.  p. 
91.  So  that,  according  to  the  view  of  the  House  itself,  the  decision 
in  Reg,  v.  Millis  is  not  binding  or  applicable  in  regard  to  marriages 
contracted  elsewhere  than  in  England  or  Ireland. 


B,  0.  TOL.  XVn.]  MABRIAGE.  165 

Hm.  1,  2.  —  Balxymple  v.  Dalrymple ;  Beg.  v.  MiUii.  —  Notei. 


AMERICAN  NOTES. 

These  celebrated  cases  are  cited  by  all  the  leading  American  text-writers 
on  mairiage.  Mr.  Schouler  says  :  ''  The  opinion  of  Lord  Stowell  in  the  case 
of  DcUrymple  y.  Dalrymple,  to  which  we  have  alluded,  is  an  admirable  exposi- 
tion of  the  law  of  informal  marriages.  It  is  a  masterpiece  of  judicial  elo- 
quence and  careful  research."  Mr.  Reeve  speaks  of  it  as  "the  celebrated 
opinion  which  for  learning  and  elegance  of  diction  has  seldom  been  equalled, 
and  which  is  a  complete  treatise  on  the  subject  of  the  common  law  relating 
to  marriage."  (Dom.  ReL  251.)  Mr.  Bishop  pays  great  and  not  at  all  flat- 
tering attention  to  the  Millis  case.  He  sums  up  the  matter  as  follows :  "  The 
doctrine  that  the  intervention  of  a  person  in  holy  orders  is  essential  to  mar- 
riage has  found  small  support  in  this  country.  It  has  been  held  to  be  un- 
necessary at  the  common  law,  by  the  Courts  of  New  York,  New  Jersey, 
Pennsylvania  (undecided  whether  or  not  altered  by  statute),  Kentucky  (but 
the  law  was  afterwards  changed  by  statute),  Vermont  substantially,  Ohio, 
Tennessee,  Alabama,  New  Hampshire,  and  Maryland  possibly.  South  Carolina, 
California,  Michigan,  Missouri,  Mississippi,  Minnesota,  Illinois,  Rhode  Island, 
Georgia,  Indiana,  and  Kansas.  The  same  is  held  in  Louisiana,  whose  com- 
mon law  is  derived  from  Spain,  in  which  country  the  Council  of  Trent  was 
received,  yet  it  did  not  become  binding  in  the  Colony.  The  Supreme  Court 
of  the  XJoited  States  was  once  equally  divided"  on  this  question,  but  afterward 
it  accepted  the  common  doctrine  of  the  State  Courts  just  explained.  Kent, 
R^ve,  and  Greenleaf,  in  their  text-books,  consider  clerical  intervention  to  be 
unnecessary  at  the  common  law,  and  this  may  well  be  deemed  the  Ameri- 
can doctrine.  It  is,  as  otherwise  expressed,  that  the  marriage  by  mere  con- 
sent is  good  throughout  the  United  States,  except  in  some  States  where  local 
statutes  have  provided  otherwise.  Nor  has  the  author  been  able  to  find 
in  our  American  books  any  opinion  or  adjudged  case  in  harmony  with  TTie 
Queen  v.  Millis  ;  holding  that  **  only  in  the  presence  of  a  person  of  holy  orders 
can  a  valid  marriage  be  contracted."  On  the  lighter  side  of  the  scale  Mr, 
Bishop  puts  only  Massachusetts  positively,  and  Maine  as  uncertain. 

In  Rose  v.  Clark,  8  Paige  (N.  Y.  Chan.),  579,  Chancellor  Walworth  said  : 
**  By  the  ancient  common  law  of  England,  it  seems  that  a  marriage  was  in- 
valid nnless  it  was  celebrated  in  facie  ecclesice.  Such  was  the  decision  in  the 
case  of  Del  Heith,  decided  in  the  beginning  of  the  fourteenth  century  (Easter 
Term,  34  Edw.  1.),  the  report  of  which  case  Sir  Harris  Nicholas  has  extracted 
^rom  the  Harleian  Manuscript,  No.  2,  117,  fol.  339.  See  Nicholas,  Adult. 
Bast.  31,  567.  And  the  decision  in  Foxcrqft's  Case,  twenty-four  years  pre- 
vious to  that  time  (Easter  Term,  10  Edw.  I.,  1  Rolle,  Abr.  359),  undoubtedly 
^as  placed  upon  the  same  ground ;  and  not  upon  any  question  of  doubt  as  to 
the  supposed  husband's  being  the  real  father  of  the  child,  as  Lord  Chief  Jus- 
tice Ellenborough  and  Lord  Chancellor  Eldon  appear  to  have  understood 
the  decision  in  that  case.  See  King  v.  Luff,  8  East,  299 ;  Le  Marchant's  pre- 
face to  the  Gardner  Peerage  Case,  5  P. ;  Nicholas,  Adult.  Bast.  660.  The  law 
on  this  subject,  however,  was  unquestionably  changed  (p.  580)  at  the  Refor. 
mation,  if  not  before.    For  it  is  now  a  settled  rule  of  the  common  law,  which 


166  MARBIAGE. 

Hot.  1,8.  —  Balrymple  v.  Dalxymple ;  Beg.  v.  Millis.  —  HotM. 

was  brought  into  this  State  by  its  first  English  settlers,  and  which  was  prob- 
ably the  same  among  the  ancient  Protestant  Dutch  inhabitants,  that  any 
mutual  agreement  between  the  parties  to  be  husband  and  wife  in  prcBsenH, 
especially  where  it  is  followed  by  cohabitation,  constitutes  a  valid  and  bind- 
ing marriage,  if  there  is  no  legal  disability  on  the  part  of  either  to  contract 
matrimony.    2  Kent  Com.  87." 

In  an  article  in  4  Green  Bag,  308,  the  present  writer  observed  on  this  sub- 
ject: "The  most  extensive  and  learned  treatment  of  this  topic  by  a  text- 
writer  is  to  be  found  in  Reeve  on  Domestic  Relations  (4th  ed.  p.  253).  He 
says :  *  There  can  be  no  doubt  that  the  express  words  of  the  statute  of  Geo. 
II.  have  reudei*ed  those  marriages  not  celebrated  as  that  statute  directs,  void. 
But  I  apprehend  that  by  the  provisions  of  the  common  law,  marriage,  although 
celebrated  by  a  person  not  qualified  by  law,  or  in  a  manner  forbidden  by  law, 
are  valid.  The  conduct  of  the  parties  concerned  has  rendered  them  obnox* 
ious  to  the  penalties  of  the  law ;  but  such  singular  conduct  is  not  a  ground 
for  impeaching  the  validity  of  the  marriage.  Until  the  civil  wars  during  the 
reign  of  Car.  1.,  nothing  can  be  found  on  this  subject.  For  until  that  period 
it  had  not  been  supposed  that  any  person  but  one  in  holy  orders  could  cele- 
brate a  marriage.  .  .  .  During  the  commonwealth  the  power  of  celebrating 
marriages  was  given  to  justices  of  the  peace.  And  they  were  the  only  officers 
whom  the  law  recognizes  as  possessing  power  to  marry.  Yet  during  the 
existence  of  this  law  it  was  determined  that  a  marriage  celebrated  by  one  not 
in  holy  orders,  though  not  a  justice  of  the  peace,  was  valid.  After  the  Res- 
toration, the  power  of  celebrating  marriages  was  committed  exclusively  to 
the  clergy  of  the  Church  of  England.  And  yet  we  find  the  Court  of  the 
King's  Bench  issuing  a  prohibition  to  the  spiritual  Court,  because  the  validity 
of  a  marriage  had  in  the  face  of  a  separate  congregation  was  questioned  in 
said  Court.  So,  too,  we  find  that  a  marriage  celebrated  by  a  preacher  in  a 
separate  congregation,  who  was  a  layman,  was  recognized  as  valid;  .  .  .  we 
find  also  that  a  marriage  by  a  popish  priest  was  held  valid ;  and  that  in  the 
strongest  possible  case  the  case  was  that  a  man  had  been  married  by  a  popish 
priest,  who  by  law  had  no  authority  so  marry.  This  person,  so  married,  dur- 
ing the  life  of  his  wife  married  again.  The  matter  was  brought  before  the 
ecclesiastical  Court,  and  the  second  marriage  was  annulled  upon  the  principle 
that  the  first  marriage  was  valid.  After  the  marriage  was  annulled,  he  was 
informed  against  before  a  common -law  Court  of  criminal  jurisdiction,  for  big- 
amy and  convicted.  This  seems  to  me  irrefragable  proof  that  the  common 
law  did  not  consider  marriage  celebrated  irregularly  as  void.'  So  Bishop 
says  (1  Mar.  &  Div.  §  277  a)  :  *  There  were  in  former  times  numerous  canons 
and  the  like,  making  it  an  offence  against  the  church  to  marry  without  the 
presence  of  the  priest ;  but  these  were  never  construed  to  render  the  marriage 
in  violation  of  them  void.'  But  still  the  question  recurs,  were  they  not 
voidable  in  proceedings  to  avoid  them? 

*'  In  this  country  generally  the  mock  marriage  would  bind  both  parties, 
for  here  generally  the  intervention  of  a  clergyman  is  not  necessary.  The 
doctrine  of  Queen  v.  Millis  never  obtained  here.  Bishop  says  of  Queen  v. 
Millis  (1  Mar.  &  Div.  §  281) :  *  Repudiated,  except  as  bare  authority,  at  home ; 


R.  a  VOL.  XVII.]  MARRIAGE.  167 

Hm.  1,  2.  — Balrynqpla  v.  DalxymplB;  B«g.  v.  Xillif.  —  Votet. 

decided  in  haste  by  Judges  who  had  no  knowledge  of  the  very  peculiar  branch 
of  jurisprudence  to  which  it  belonged ;  determined  in  the  way  it  was,  instead 
of  the  reverse,  by  an  accident,  —  it  never  was  entitled  to  any  particular  respect 
abroad,  and  it  has  received  none.' 

*^  It  was  well  settled  in  this  country,  that  if  the  minister  were  such  defactOy 
and  the  parties  acted  in  good  faith,  the  marriage  would  be  vaUd,  although  he 
was  not  a  minister  de  jure,  and  Bishop  thinks,  even  if  he  were  an  usurper. 
A  few  cases  illustrate  this. 

"In  Pearson  v.  Howey,  6  Halsted  (N.  J.  L.),  12,  it  was  held  that  a  justice  of 
the  peace  might  celebrate  a  marriage  out  of  his  county.  This  is  put  on  the 
ground  that  no  ceremony  at  all  is  necessary,  but  the  Courts  say :  *  But  suppose 
thb  act  had  gone  to  the  whole  extent  of  declaring  that  no  other  person  or 
persons  should  solemnize  marriage  except  those  mentioned  in  it,  such  other 
persons  would  commit  an  offence  gainst  the  act  by  solemnizing  marriages, 
ior  which  they  might  be  punished,  but  still  the  marriage  contract  between  the 
parties  themselves  would  remain  valid.  During  the  Commonwealth  of  Eng- 
land, Parliament  passed  a  law  requiring  all  marriages  to  be  solemnized  by  jus- 
tices of  the  peace ;  yet  a  marriage  solemnized  before  a  clergyman  was  holdeu 
^y  all  their  Courts  to  be  valid,  although  the  clergyman  was  punishable.  .  •  . 
Our  act  empowers  an  ordained  minister  of  the  gospel  to  solemnize  marriages  ; 
but  suppose  a  minister  of  the  gospel  to  do  it  before  he  is  ordained,  can  any 
person  believe  that  the  marri^e  itself  would  be  invalid?'  &c. 

**In  Taylor  v.  State,  52  Mississippi,  84,  it  was  held  that  the  marriage  was 
&ot  invalid  because  the  minister  had  not  been  regularly  ordained. 

"In  State  v.  Bray,  13  Iredell  Law  (Nor.  Car.),  289,  it  was  held  that  *  it  waa 
not  necessary  to  the  validity  of  the  marriage  that  the  minister  should  have 
been  a  minister  in  charge  of  a  church,  or  the  rector  of  a  parish,  or  pastor  of  a 
particular  flock.  But  it  is  necessary  that  he  should  have  appeared  to  be  a 
minister  capable  of  entering  upon  the  duties  of  such  a  charge,  according  to 
the  ecclesiastical  economy  of  his  church,  with  the  faculty  of  celebrating  the 
rites  of  matrimony.'  This  was  under  a  statute  requiring  the  celebrant  to 
have  'the  cure  of  souls.' 

**  In  Hayes  v.  People,  25  New  York,  390,  it  was  held  that  on  a  prosecution 
for  bigamy  the  defendant  is  not  absolved  by  the  fact  that  the  second  marris^ 
^aa  celebrated  by  one  falsely  personating  a  clergyman.  But  this  was  put  on 
the  ground  that  the  intervention  of  a  clergyman  or  magistrate  is  not  neces- 
sary under  the  law  of  New  York.  The  following  expressions  of  Allen,  J., 
however,  have  some  bearing  on  the  question  under  examination  here  :  *  Most 
^rtainly  the  prisoner  should  not  be  permitted  to  evade  punishment  by  showing 
that  he  deceived  his  victim,  not  only  as  to  his  capacity  to  contract,  but  also 
^  to  the  character  of  the  individual  called  in  to  attest  the  contract ;  that  he 
"iduoed  the  female  to  believe  that  their  union  had  the  sanction  of  the  Church 
»8  Well  as  the  binding  force  of  an  enduring  civil  contract' 

"Still  although  the  defendant  may  be  punishable  for  his  deceit,  the  ques- 
tton  recurs  whether  the  marriage  itself  would  have  been  valid  at  common 
Iftw;  whether,  although  estopped  on  the  criminal  side,  he  is  also  estopped  on 
the  civil  side. 


168  MABBIAGE. 


Hot.  1.  8. — Dalxymplo  v.  Dalrymplo;  Beg.  v.  Millii.  —  HotM. 

''  It  would  sdein  however  that  there  is  a  practical  opening  to  justice  in  the 
matter  out  of  presumptions.  It  is  very  well  settled  that  such  an  irregular 
marriage  is  presumptively  valid ;  the  celebrant  is  deemed  prima  facie  duly 
authorized.  (^Patterson  v.  Gainesy  6  Howard,  550.)  The  deceived  wife  may 
tnerefore  safely  rest  upon  the  presumption,  for  no  Court  will  allow  the  hus- 
band to  rebut  the  presumption  by  bare  proof  of  his  fraud.  Thus  one  techni- 
cality is  offset  by  another  to  attain  justice,  and  that  is  the  best  use  to  which 
technicalities  can  ever  be  put." 

Some  Courts  and  textrwriters  have  doubted  the  policy  of  common-law  mar- 
riage, while  acknowledging  its  validity.  Thus  in  Dunbarton  v.  Franklin,  19 
New  Hampshire,  264,  the  Court  observed :  **  It  is  singular  that  the  most  im- 
portant of  all  human  contracts,  on  which  the  rights  and  duties  of  the  com- 
munity depend,  requires  less  formality  for  its  validity  than  a  conveyance  of 
an  acre  of  land,  a  policy  of  insurance,  or  the  agreement  which  the  Statute  of 
Frauds  requires  should  be  in  writing."  (But  insurance  may  be  effected  with- 
out a  policy.)  In  Van  Tuyl  v.  Van  Tuyl,  57  Barbour  (N.  Y.  Sup.  Ct.),  235, 
the  Court  said :  **  I  wish  it  was  in  my  power  to  aid  the  plaintiff's  counsel  in 
their  efforts  to  take  away  from  our  law  respecting  the  marriage  contract  the 
reproach  imputed  to  it."  Surrogate  Bradford  (Jaques  v.  Public  Admr.,  1 
Bradford  [N.  Y.  Surrogate],  508)  declared  it  might  well  be  the  subject  of 
anxiety  that  a  contract  of  such  infinite  importance  to  social  order  and  the 
rights  of  property  had  been  left,  in  regard  to  the  evidence  of  its  existence,  in 
so  loose  and  uncertain  a  condition.  Mr.  Bullock,  a  late  commentator,  says : 
'*  In  human  society  as  it  now  is,  and  particularly  in  crowded  communities,  it 
is  both  immoral  and  impossible  to  mate  as  the  birds  mate.*'  And  no  argu- 
ment is  farther  from  the  truth  than  that  which  assumes  that  common-law 
marriage  serves  to  prevent  the  illegitimacy  of  children  or  the  dishonor  or  un- 
happiness  of  women.  The  law  reports  of  the  State  of  New  York  do  not  pre- 
sent one  case  of  common-law  marriage  which  does  not  cast  its  reflection  of 
shame  upon  some  woman."  '*  For  the  sake  of  public  manners  and  morals, 
and  to  avoid  scandal,  it  is  better  that  such  contracts  should  be  attested  by 
some  officers  of  religion  or  by  a  civil  magistrate,  but  if  parties  will  not  respect 
the  wholesome  usages  of  society  in  this  regai-d,  they  should  at  least  save  their 
issue  from  the  reproach  of  bastardy  by  making  a  contract  of  marriage  that 
shall  be  susceptible  of  proof."  Com.  v.  Stump,  53  Penn.  State,  136.  In 
spite  of  such  unfavorable  opinions  the  doctrine  has  not  relaxed  its  hold  in 
this  country.  Recent  congresses  of  State  Commissions  for  Promotion  of 
Uniformity  of  Legislation  have  recommended  a  stricter  mode  of  celebration 
of  marriages,  but  without  avaU.  In  a  revision  of  the  New  York  Statutes  in 
1896,  the  Domestic  Relations  Act  still  recognizes  the  validity  of  common-law 
marriage,  although  provision  is  made  for  ceremonial  marriage  and  registry. 

Very  little  argument  is  to  be  found  in  our  books  in  support  of  the  policy 
of  common-law  marriages,  but  when  the  present  writer  was  a  quarter  of  a 
century  younger,  he  wrote  in  favor  of  the  policy  of  common-law  marriage  aa 
follows  (9  Albany  Law  Journal,  402) :  "  We  may  now  briefly  give  a  few 
imperative  reasons  why  formalities  or  ceremonies  should  not  be  essential  to 
the  formality  of  a  marriage.     First,  many  marriages  intended  to  be  lawful 


B.  C,  YOL.  XVII.]  MARRIAGE.  169 

Hot.  1,2.  —  Dalxymple  v.  Dalxymple ;  Beg.  v.  KilliB.  —  Votei. 

would  prove  mere  illicit  connections  from  want  of  compliance  with  the  requi- 
site ceremonies.     If  publication  of  the  intention  at  three  public  meetings 
were  requisite,  and  publication  at  only  two  were  shown,  or  it  should  turn  out 
that  one  of  the  occasions  did  not  satisfy  the  definition  of  a  public  meeting, 
or  if  the  priest  were  not  ordained,  or  the  justice  were  acting  out  of  his  juris- 
diction, or  any  one  of  a  hundred  other  things  were  true,  the  marriage  is  void, 
and  the  children  are  bastards.     We  submit,  if  there  is  to  be  any  mistake,  it 
is  better  that  illicit  connections  should  be  construed  to  be  marriages,  than 
that  honest  and  innocent  associations,  intended  as  marriages,  should  be  con- 
strued to  be  mere  concubinage.    Second,  such  formalities  may  easily  be  evaded. 
In  Connecticut,  for  instance,  where  publication  at  a  certain  number  of  public 
meetings  is  required,  the  writer  has  frequently  heard  an  auctioneer  at  an  auc- 
tion announce  such  an  intention.     Third,  such* formalities  are  frequently  very 
difficult  of  proof  after  a  lapse  of  a  few  years.     Fourth,  such  formalities  are 
very  easily  forged  or  pretended.    Many  an  innocent  woman  has  been  made 
the  victim  of  a  mock  marriage.     The  fact  has  proved  the  basis  of  many  a 
romance.    We  lack  space  to  speak  further  of  this  matter  at  present,  except  to 
say  that  we  hope  our  Legislature  will  never  enact,  that  to  constitute  a  valid 
contract  of  marriage,  there  must  be  the  sanction  of  a  priest,  or  the  warrant 
of  a  ms^trate,  or  a  permission  from  tfee  State,  or  the  consent  of  parents,  or 
a  previous  announcement  to  the  public  in  any  way  of  the  intention  to  enter 
into  such  a  contract." 

^  Parky.  Barron,  20  Georgia,  702 ;  65  Am.  Dec.  641,  the  Court  said  :  «  For 

obvious  reasons  connected  with  the  welfare  of  society,  the  law  is  more  tender 

oi  Duptial  contracts  than  ordinary  contracts  which  relate  merely  to  property 

*°"  the  ordinary  dealings  among  men."    But  the  Court  did  not  set  forth  the 

l^^^ous  reasons."    In  Dumaresby  v.  Fishly,  3  A.  K.  Marshall  (Kentucky), 

/  the  Court  said  of  the  necessity  of  following  formality:    "A  doctrine 

^^*^  would  thus  tend  to  vitiate  a  great  proportion  of  the  marriages  of  the 

'''"y  would  result  in  incalculable  evils,  and  cannot  be  admitted  to  be 

^t.liough  "  in  most  if  not  all  of  the  United  States  there  are  statutes  regu- 
Utoxv^  the  celebration  of  marriage,  and  inflicting,  penalties  on  all  who  disobey 
^e  regulations,  yet  it  is  generally  considered  that  in  the  absence  of  any 
positive  statute  declaring  that  all  marriages  not  celebrated  in  the  prescribed 
manner  shall  be  absolutely  void,  or  that  none  but  certain  magistrates  or 
ministers  shall  celebrate  a  marriage,  any  marriage  regularly  made  according 
to  the  common  law,  without  observing  the  statutory  regulations,  would  still 
be  a  valid  marriage : "  Greenleaf  Evidence,  531 ;  Hynes  v.  McDermott,  82  N".  Y. 
41;  37  Am.  Rep.  538;  Badger  v.  Badger,  88  N.  Y.  446;  42  Am.  Rep.  263. 
Contra :  Com.  v.  Munson,  127  Mass.  459 ;  34  Am.  Rep.  411.  See  also  16  Albany 
Law  Jour.  217. 

The  different  views  of  New  York  and  Massachusetts  as  to  the  essentials  of 
a  contract  of  marriage  are  illustrated  in  two  cases  in  which  the  facts  strain 
the  different  theories  to  their  utmost.  In  a  New  York  case,  in  the  Court  of 
Appeals  (Hynes  v.  McDermott,  82  N.  Y.  41),  the  administration  and  succession 
of  the  estate  of  a  New  York  merchant  of  some  wealth  was  disputed  on  the 


170  MABRIAGE. 


Vm.  1,  8.  —  Balrymple  v.  Dalrymple ;  Beg.  v.  lUUifi.  —  VotM. 

strength  of  an  oral  contract  of  marriage  entered  into  before  witnesses  by  the 
deceased,  first  in  London,  next  in  a  ship  crossing  the  channel,  and  third  in 
Paris.  Neither  by  French  law  nor  by  English  does  such  a  contract  constitute 
marriage.  Whether  it  does  on  board  a  vessel  on  the  high  seas  is  a  delicate 
question  into  whose  solution  many  elements  would  enter.  One  of  the  most 
important  would  be  the  nationality  of  the  vessel,  and  this  was  not  in  evi- 
dence before  the  Court,  nor  does  it  appear  that  the  marriage  law  in  France 
was  proved,  —  a  singular,  not  to  say  unaccountable,  oversight.  The  Court 
therefore  declining  to  take  cognizance  of  a  foreign  law  unless  it  was  proved 
as  an  issue  of  fact,  rendered  its  decision  on  the  presumption  that  the  marriage 
contract  on  board  the  vessel  and  in  France  was  made  under  law  like  that  of 
New  York,  and  declared  the  marriage  valid  and  the  issue  legitimate.  In  the 
Massachusetts  case  (Commonwealth  v.  Munsony  127  Mass.  459 ;  34  Am.  Rep. 
411),  the  defendant,  at  a  public  religious  meeting  called  by  him,  at  a  chapel 
in  Worcester,  Mass.,  at  which  about  fifty  were  present,  but  at  which  no 
magistrate  nor  clergyman  was  present,  gave  out  a  text,  talked  a  while  about 
<' repentance,''  read  Matthew  xx.  1-5;  then  a  woman  came  forward  and  read 
from  the  sixth  to  the  tenth  verse  of  the  same  chapter ;  they  then  joined  hands, 
and  the  defendant  said:  "In  the  presence  of  God  and  of  these  witnesses, 
I  now  take  this  woman  whom  I  hold  by  the  right  hand  to  be  my  lawful 
wedded  wife,  to  love,  to  cherish,  till  the  coming  of  our  Lord  Jesus  ChiTst, 
or  till  death  do  us  part ; "  the  woman  then  said :  **  And  I  now  take  this  man 
to  be  my  lawfully  wedded  husband,  to  love,  reverence,  and  obey  him  until  the 
Lord  himself  shall  descend  from  Heaven  with  a  shout  and  the  voice  of  the 
archangel  and  with  the  trump  of  God,  or  till  death  shall  us  sever; "  and  the 
parties  then  bowed,  and  the  defendant  offered  prayer ;  neither  party  was  a 
Friend  nor  Quaker,  and  the  ceremony  was  not  conformable  to  the  usage  of 
any  religious  sect ;  the  rite  was  performed  in  good  faith,  and  followed  by 
cohabitation.  Held,  no  marriage.  The  learned  Chief  Justice,  Gray,  at  the 
close  of  an  elaborate  opinion,  said:  **  Whether  it  is  wise  and  expedient  so  to 
change  the  law  of  Massachusetts  as  to  allow  an  act  which  so  deeply  affects 
the  relations  and  the  rights  of  the  contracting  parties  and  their  offspring  to 
become  binding  in  law  by  the  mere  private  contract  of  the  parties,  without 
going  before  any  one,  as  a  magistrate  or  minister,  is  a  matter  for  legislation, 
and  not  for  judicial  consideration."  The  statutes  of  the  two  States  do  not 
essentially  differ.  Both  provide  for  ceremonial  marriage,  but  neither  enacts 
that  the  absence  of  such  ceremony  shall  render  the  marriage  void.  In  1887  the 
Legislature  of  New  York  added  a  proviso  that  marriage  should  not  be  deemed 
invalid  because  not  celebrated  according  to  the  statute.  Judge  Holmes,  in  a 
note  to  Kent's  Commentaries,  says :  "  The  regulations  amount  therefore 
only  to  legislative  recommendation  and  advice.  They  are  not  latoSf  because 
they  do  not  require  obedience  !  "     (Evidently  ironical.) 

In  Vermont  the  same  doctrine  is  held  as  in  Massachusetts  under  a  similar 
statute.  Morrill  v.  Palmer^  68  Vermont,  1 ;  33  Lawyers'  Rep.  Annotated,  411. 
(The  case  further  holds  that  a  woman  deceived  into  a  marriage  with  a  man 
already  married  has  a  cause  of  action  for  the  deceit.) 

In  Denison  v.  DentsoUf  35  Maryland,  370,  is  an  extremely  learned  discus- 


E.  C.  VOL.  XVII.]  MARKIAGE.  171 

Hot.  1,  2.  —  Dalxyxnple  y.  Dalxymple ;  Beg.  v.  Millis.  —  HotM. 

sion  of  the  subject,  citing  Reg.  v.  Millisy  coming  to  the  same  conclusion  as 

the  Vermont  and  Massachusetts  Courts,  under  a  similar  statute,  and  ob* 

serving :  *^  To  constitute  lawful  marriage  here  there  must  be  superadded  to 

the  civil  contract  some  religious  ceremony."     "These  loose  and  irregular 

contracts,  as  a  general  thing,  derive  no  support  from  morals  or  religion,  but 

are  most  generally  founded  in  a  wanton  and  licentious  cohabitation.    Hence 

the  law  of  the  State  has  given  them  no  sanction.'*    Probably  this  is  a  survival 

of  the  notions  of  the  Roman  church  introduced  by  the  Catholic  founders  of 

that  colony  and  State. 

State  V.  Walker,  36  Kans.  297 ;  s.  c.  59  Am.  Rep.  556,  is  an  interesting 
case,  where  the  Court  refused  to  sanction  a  **  free-love  "  marriage.  So  in 
Ptck  V.  I>eckj  155  Mass.  479,  where  the  agreement  was  for  marriage  "  so  long 
as  matual  affection  shall  exist." 

To  the  same  effect  is  Beverlin  v.  Beverliriy  29  West  Virginia,  732  (citing  the 
MiUif  case);  State  v.  HodgskinSy  19  Maine,  155;  In  re  McLaxigUin's  Estate^ 
4  Washington,  570 ;  16  Lawyers'  Rep.  Annotated,  699  (license  required  by 
the  statute).  In  Dunbarton  v.  Franklin,  19  New  Hampshire,  257,  it  was  held 
that  cohabitation,  acknowledgment,  and  reputation  do  not  in  themselves  con- 
stitute a  marriage,  but  are  evidence  from  which  a  jury  may  find  a  marriage. 

In  Clancy  v.  Clancy,  66  Michigan,  202,  it  was  held  that  an  agreement  "  to 
live  together  henceforth  and  forever  as  man  and  wife  "  is  not  a  contract  of 
marriage.  One  judge  dissented,  holding  that  "  man  "  is  there  equivalent  to 
husband,  saying :  "  I  find  the  common  acceptation  of  the  term  *  man  and  wife ' 
xa  every-day  life,  and  even  in  our  best  literature,  to  be  the  same  as  *  husband 
ana  wife.'  And  its  use  is  by  all  odds  the  most  common.  Webster  gives  as 
one  of  }jjg  definitions  of  *  man,'  *  a  married  man,  a  husband,*  quoting  a  line 
^^^  Addison,  *  Every  wife  ought  to  answer  for  her  man.' "  It  is  singular 
**  Hone  of  the  judges  recalled  the  marriage  ceremony,  as  set  down  in  the 
j^^  of  Common  Prayer,  in  which  the  priest  pronounces  the  pair  "  man  and 

'IT   •   ^  ^®^^  ^^  ^  hands  that  no  marriage  can  be  presumed  from  intercourse 

. -^  ^^  Or  irregular  in  its  commencement.     Williams  v.  Williams,  46  Wisconsin, 

*   82  Am.  Rep.  722 ;  Collins  v.  Voorhees,  47  New  Jersey  Equity,  555 ;  14 

^^^^is'  Rep.  Annotated,  364;  Appeal  of  Reading,  ^c.  Co,,  113  Penn.  State, 

'^\   57  Am.  Rep.  448;  31  Albany  Law  Journal,  106,  127,  citing  Bamum  v. 

Y^0fnum,  42  Maryland,  251 ;  Port  v.  Port,  70  Illinois,  484 ;  Slate  v.  Worthing- 

yftOy  23  Minnesota,  528 ;   Floyd  v.  Calvert,  53  Mississippi,  37 ;  so  in  a  case 

^here  there  was  cohabitation,  but  the  marriage  ceremony  was  to  have  been 

performed  at  a  future  date,  and  was  prevented  by  the  man's  death,  it  was  held 

no  marriage :   Grimm's  Estate,  131  Penn.  State,  199.     But  the  presumption 

of  the  continuance  of  that  character  may  be  rebutted.     CaujoUe  v.  Ferrii, 

23  New  York,  91;  6  Lawyers'  Rep.  Annotated,  717. 

Common-law  marriages  were  sanctioned  in  the  following  cases,  many  of 
which  were  under  statutes  like  that  of  New  York :  Londonderry  v.  Chester, 
2  New  Hampshire,  268 ;  9  Am.  Dec.  61  (pronounced  obiter  in  Dunbarton  v. 
Franklin,  19  New  Hampshire,  256) ;  Hutehins  v.  Kimmell,  31  Michigan,  126 ; 
18  Am.  Rep.  164  (where  the  Court  said:  "  This  has  become  the  settled  doc- 


172  MABRIAGE. 


Not.  1,  8.  —  Balrymplo  v.  Dalxymple ;  Beg.  v.  Millis.  —  Hotet . 

trine  of  the  American  Courts,  the  few  cases  of  dissent  or  apparent  dissent 
being  borne  down  by  a  great  weight  of  authority  in  favor  of  the  rule  as  we 
have  stated");  Pearson  v.  Hotoey,  6  Halsted  (New  Jersey),  12;  Common- 
wealth V.  Stump,  53  Penn.  State,  182 ;  91  Am.  Dec.  198  ;  Duncan  v.  Duncan, 
10  Ohio  State,  181;  State  v.  Patterson,  2  Iredell  Law  (Nor.  Car.),  346;  38 
Am.  Dec.  699;  Keyes  v.  Keyes,  22  New  Hampshire,  563;  Park  v.  Barron,  20 
Georgia,  702  ;  65  Am.  Dec.  641 ;  Bashaw  v.  State,  1  Yerger  (Tennessee),  177; 
Potter  V.  Barclay,  15  Alabama,  439 ;  Dumareshy  v.  FisMy,  3  A.  K.  Marshall 
(Kentucky),  368;  Graham  v.  Bennett,  2  California,  503;  Patton  v.  Philadelphia, 
1  Louisiana  Annual,  98;  Hallett  v.  CoUins,  10  Howard  (U.  S.  Sup.  Ct.)  174; 
Dyer  v.  Brannock,  66  Missouri,  391 ;  27  Am.  Rep.  359  (disapproving  Reg.  v. 
Millis);  Carttoright  v.  McGown,  121  Dlinois,  388;  2  Am.  St.  Eep.  105;  Farley 
V.  Farley,  94  Alabama,  501 ;  33  Am.  St.  Rep.  141  (even  holding  compliance 
with  the  requirement  for  a  license  dispensed  with  by  consent  and  cohabita- 
tion); Voorhees  v.  Voorhees,  46  New  Jersey  Equity,  411 ;  19  Am.  St.  Rep.  404; 
Simon  v.  StaU,  31  Texas  Criminal,  186;  37  Am.  St.  Rep.  802;  Port  v.  Port, 
70  Illinois,  484  (citing  the  Millis  case) ;  Hiler  v.  People,  156  Illinois,  511 ;  47 
Am.  St.  Rep.  221 ;  McCreery  v.  Davis,  44  South  Carolina,  195 ;  51  Am.  St. 
Rep.  794;  State  v.  Bittick,  103  Missouri,  183 ;  11  Lawyers'  Rep.  Annotated, 
587.  In  Hallett  v.  Collins,  supra,  the  Court,  citing  Reg.  v.  Millis,  said : 
<'  Whether  such  a  marriage  was  sufficient  by  the  common  law  in  England, 
previous  to  the  Marriage  Act,  has  been  disputed  of  late  years  in  that  country, 
though  never  doubted  here."  The  Court  also  cite  the  Dcdrymple  case,  ob- 
serving: *<  where  all  the  learning  on  this  subject  is  collected."  Kent  cites 
the  Millis  case,  saying:  "the  question  was  most  elaborately  and  learnedly 
discussed,''  but  is  of  opinion  that  common-law  marriage  is  generally  valid 
here,  and  so  even  if  the  statute  recognizes  ceremonial  marriage.  Schouler 
(Husband  and  Wife,  sects.  34,  35),  cites  the  Millis  case,  but  says :  "  Marriage 
being  a  matter  of  common  right,  it  is  lately  held  by  the  highest  tribunal  for 
harmonizing  the  rule  of  States  (^Meister  v.  Moore,  96  United  States,  76)  that 
unless  the  local  statute  which  prescribes  regulations  for  the  formal  marriage 
ceremony  positively  directs  that  marriages  not  complying  with  its  proinsions 
shall  be  deemed  void,  the  informal  marriage  by  words  of  present  promise 
must  be  pronounced  valid,  notwithstanding  statutory  directions  have  been 
disregarded,"  and  that  Court  approved  the  decision  m  Hutchins  v.  Kimmell,  31 
Michigan,  126.  The  Court  pronounce  these  statutory  provisions  merely 
directory,  and  also  call  attention  to  a  decision  of  the  Massachusetts  Court,  in 
Parton  v.  Henry,  1  Gray,  119,  where  a  girl  thirteen  years  old  married  without 
parental  consent,  the  statute  prohibiting  the  celebration  of  marriages  of 
females  under  eighteen  without  such  consent,  and  yet  the  marriage  was  held 
valid ;  and  early  in  Massachusetts  the  doctrine  that  the  statutory  provisions  in 
question  were  merely  directory  was  held  (Milford  v.  Worcester,  7  Mass.  48). 

In  Dumareshy  v.  Fisldy,  supra,  one  judge  dissented  in  a  learned  opinion, 
observing  :  "  These  ecclesiastical  Courts  had  matrimonial  suits  in  the  form  of 
libels,  with  process  similar  to  our  chancery  Courts,  in  which  they  decided  that 
verba  de  pra^enti  and  verba  de  futnro  constituted  a  valid  marriage,  and  decreed 
the  specific  execution  of  such  contracts,  and  compelled  the  solemnization  of 


R.  C.  VOL.  xvil]  markiagb.  173 

Not.  1,  8.  —  Balrymple  v.  Balxymple ;  Beg.  v.  Millig.  —  Notes. 

the  marrk^e  in  facie  eccleske,  where  words  of  either  kind  were  used.  The 
power  of  this  Court  was  strong  indeed.  Disobedience  to  its  determination 
resulted  in  the  writ  de  excommunicato  capiendo,  by  which  the  offender  was 
immediately  imprisoned  until  he  submitted  to  the  church.  See  Confectio 
£ccl.  Courts ;  Boyd's  Jud.  Proceedings ;  3  Black.  101.  It  is  then  no  wonder, 
under  such  a  government  as  that,  that  rules  and  principles  from  the  canon 
should  incorporate  themselves  into  the  common  law:  that  thoughtless  ex- 
pressions, such  as  *  I  marry  you,'  or  *  take  you  to  be  my  wife,'  spoken  in  a 
moment  of  unguarded  feeling,  should  be  deemed  irrevocable,  and  seized  upon 
by  the  craving  and  voracious  disposition  of  a  corrupt  hierarchy  as  consti- 
tuting a  valid  marriage,  or  rather,  what  they  would  reduce  by  their  sentence 
and  jurisdiction  to  a  valid  marriage.  Hence  Blackstone,  vol.  i.  439,  after 
laying  down  the  rule  that  such  expressions  were  formerly  *  deemed  a  valid 
marriage  to  many  purposes,'  adds,  *  and  the  parties  might  be  compelled  in 
the  spiritual  Courts  to  celebrate  it  in  /<icie  ecclesias.^  And  it  is  said,  in 
Salk.  437,  438,  that  such  is  the  rule  of  the  canon  law.  This  case  in  Salk.  by 
mistake  has  been  quoted  as  declaring  it  a  rule  of  the  common  law,  by  subse- 
quent authorities.  Assuming  then  the  fact  that  such  a  rule  was  incorporated 
into  the  common  from  the  canon  law,  it  was  one  of  the  effects  produced  by 
corrupt  religious  establishments  of  the  same  character  with  the  principle  that 
a  marriage  by  the  priest  could  never  be  dissolved  by  human  authority.  When 
we  adopted  the  common  law  of  England,  it  was  only  so  far  as  suited  our  local 
situation,  and  was  compatible  with  the  genius  and  spirit  of  our  government. 
I  would  then  select  from  it  the  most  sound  and  liberal  principles,  and  cast 
away  not  only  all  the  maxims  of  ecclesiastical  establishments,  but  doubt,  and 
also  reject,  such  parts  as  were  tainted  by  canonical  mixtures.  In  a  word,  I 
would  say  that  the  common  law  on  this  point  was  corrupted  by  too  long 
subjection  to  spiritual  usurpation,  and  that  we  did  not  adopt  it  into  our  code, 
and  that  it  is  not  in  this  respect  obligatory  on  the  Court.  I  would  take  this 
case  as  one  primte  impressionia  in  this  country,  and  subject  it  to  the  rules  of 
all  other  contracts." 

In  Hulett  Y.  Carey,  66  Minnesota,  327 ;  34  Lawyers'  Rep.  Annotated,  384, 
the  general  doctrine  is  laid  down,  as  to  the  effect  of  the  agreement  for  mar- 
riage, and  it  is  farther  held  that  cohabitation  under  the  agreement  is  not 
essential.  The  Court  say  on  this  point :  "  The  maxim  of  the  civil  law  was 
Consenstu,  nan  concvbUus,  faciX  matrimonium.  The  whole  law  on  the  subject 
is  that  to  render  competent  parties  husband  and  wife,  they  must  and  need 
only  agree  in  the  present  tense  to  be  such,  no  time  being  contemplated  to 
elapse  before  the  assumption  of  the  status.  If  cohabitation  follows,  it  adds 
nothing  in  law,  although  it  may  be  evidence  of  marriage.  It  is  mutual,  pres- 
ent consent,  lawfully  expressed,  which  makes  the  marriage,  1  Bishop  on 
Marriage,  Divorce,  &  Separation,  §§  239,  313,  315,  317.  See  also  the  leading 
case  of  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  Rep.  54,  which  is  the  foun- 
dation of  much  of  the  law  on  the  subject.  An  agreement  to  keep  the  marriage 
secret  does  not  invalidate  it,  although  the  fact  of  secrecy  might  be  evidence 
that  no  marriage  ever  took  place.  Dalrymple  v.  Dalrymple,  supra.  The  only 
two  cases  which  we  have  found  in  which  anything  to  the  contrary  was  actually 


174  MARRIAGE. 

Hm.  1,8.  —  Dalrymplo  t.  Dalrymple ;  Beg.  t.  ICUii. — Votes. 

decided  are  Reg.  v.  Millis,  10  Clark  &  F.  534,  and  Jetoell  v.  JeweU,  42  U.  S., 
1  Howard,  219,  the  Court  in  each  case  being  equally  divided.  But  these  caaea 
have  never  been  recognized  as  the  law,  either  in  England  or  in  this  country. 
Counsel  for  appellants  contend  however  that  the  law  is  otherwise  in  this  State, 
citing  State  v.  Worthingham,  23  Minnesota,  528,  in  which  this  Court  used  the 
following  language:  Consent,  freely  given,  is  the  essence  of  the  contract. 
A  mutual  agreement  therefore  between  competent  parties,  per  verba  de  prcesentiy 
to  take  each  other  for  husband  and  wife,  deliberately  made,  and  acted  upon 
by  living  together  professedly  in  that  relation,  is  held  by  the  great  weight  of 
American  authority  sufficient  to  constitute  a  valid  marriage  with  all  its  legal 
incidents ;  citing  Hutchiru  v.  KimmeU,  31  Michigan,  126 ;  18  Am.  Rep.  164. 
Similar  expressions  have  been  sometimes  used  by  other  Courts,  but  upon  ex- 
amination it  will  be  found  that  in  none  of  them  was  it  ever  decided,  that 
although  the  parties  mutually  agree  j)er  verba  de  prcesenii  to  take  each  other 
for  husband  and  wife,  it  was  necessary,  in  orderto  constitute  a  valid  marriage, 
that  this  agreement  should  have  been  subsequently  acted  upon  by  their  living 
together  professedly  as  husband  and  wife.  In  some  cases  where  such  expres- 
sions were  used  the  Court  was  merely  stating  a  proved  or  admitted  fact  in  that 
particular  case,  while  in  others  the  contract  of  marriage  was  sought  to  be 
proved  by  habit  and  repute,  and  the  Courts  merely  meant  that  the  act  of  par- 
ties in  holding  themselves  out  as  husband  and  wife  is  evidence  of  a  marriage." 
Kent  says :  "  The  only  doubt  entertained  by  the  common  law  was  whether 
cohabitation  was  also  necessary  to  give  validity  to  the  contract."  (Com.  p.  87.) 
«  The  copula  is  no  part  of  the  marriage,"  says  Schouler  (Husband  &  Wife, 
s.  81),  citing  Jackson  v.  Winne,  7  WardeU  (N.  Y.),  47;  22  Am.  Dec.  563; 
Dumaresly  v.  FisUy,  3  A.  K.  Marshall  (Kentucky),  372;  Port  v.  Port,  70 
Illinois,  484.  In  Dumaresly  v.  Fishly,  supra,  the  Court  said  that  the  con- 
tention that  consummation  is  necessary  to  a  marriage  by  present  agreement 
**i8  absolutely  untenable." 

But  where  a  marriage  ceremony  was  performed,  under  a  mistake  of  one 
party  as  to  its  legal  effect,  and  it  was  not  and  was  not  intended  to  be  followed 
by  cohabitation,  without  a  future  public  ceremony,  it  was  held  no  marriage  : 
Clark  V.  Field,  13  Vermont,  460. 

It  has  even  been  held  that  license  is  not  essential,  although  required  by 
statute,  in  the  absence  of  a  provision  declaring  void  a  marriage  without  license. 
Holmes  v.  Holmes,  6  Louisiana,  463 ;  26  Am.  Dec.  482 ;  State  v.  Bittick,  103 
Missouri,  183  ;  11  Lawyers'  Rep.  Annotated,  687;  State  v.  Parker,  106  North 
Carolina,  711;  Haggin  v.  Hnggin,  35  Nebraska,  375;  Connors  v.  Connors 
(Wyoming),  40  Pacific  Reporter,  966;  IngersoU  v.  Mc Willie,  9  Texas  Civil 
Appeals,  543 ;  87  Texas,  647.  Contra :  Re  McLaughlin's  Estate,  4  Washing- 
ton, 570 ;  16  Lawyers'  Rep.  Annotated,  699. 

Bishop,  Kent,  and  Schouler  lay  down  the  rule  that  in  the  absence  of  statu- 
tory regulation,  consent  per  verba  de  prassenti  with  or  without  consummation, 
or  per  verba  defuturo  with  consummation,  constitutes  a  valid  marriage.  But 
it  has  been  directly  held  in  several  States  that  mere  verba  defuturo,  although 
followed  by  consummation,  do  not  constitute  a  valid  marriage.  "  There  is  no 
judicial  authority  with  us  in  favor  of  inferring  a  marriage  from  an  executory 


B.  a  VOL.  XVII.]  MARMAGE.  175 

Hm.  1,  2.  — Dahymple  t.  Dalrymple;  Beg.  t.  Milli*.— Hotofc 


agreement  followed  by  intercourse,  except  the  dictum  in  Starr  v.  Peck  (1  Hill, 
274)  " :  Cheney  v.  Arnold^  15  New  York,  345,  referring  to  Sir  William  Scott's 
"masterly  judgment"  in  the  Dalrymple  case;  see  also  Peck  v.  Peck,  12  Rhode 
Island,  485;  34  Am.  Rep.  702  (citing  the  MUlis  case);  Hebblethwaite  v.  Hep- 
worth,  98  Illinois,  126,  Duncan  v.  Duncan,  10  Ohio  State,  181  (citing  the  MUUs 
case),  and  observing :  "  Finding  ourselves,  then,  compelled  by  no  preponder- 
ating force  of  authority  to  the  adoption  of  a  doctrine  so  loose  as  that  which 
would  be  necessary  to  sustain  the  marriage  claimed  to  exist  in  this  case,  we 
are  unwilling  to  do  so.  It  seems  to  us  that  grave  considerations  of  public 
policy  forbid  it ;  that  it  would  be  alien  to  the  customs  and  ideas  of  our  people, 
and  would  shock  their  sense  of  propriety  and  decency.  That  it  would  tend  to 
weaken  the  public  estimate  of  the  sanctity  of  the  marriage  relation ;  to  obscure 
the  certainty  of  the  rights  of  inheritance ;  would  be  opening  a  door  to  false 
pretences  of  marriage,  and  to  the  imposition  upon  estates  of  supposititious 
heirs ;  and  would  place  honest  God-ordained  matrimony  and  mere  meretricious 
cohabitations  too  nearly  on  a  level  with  each  other."  The  like  was  held  in 
Fryer  v.  Fryer,  Richardson  Equity  Cases  (So.  Car.),  85,  where  the  parties 
looked  forward  to  a  future  celebration,  not  regarding  the  copula  as  consum- 
mation. There  the  Court  said  :  "  Does  the  copula,  ipso  facto,  perfect  the  pre- 
vious agreement  so  as  to  constitute  marriage  ?  This  in  my  opinion  depends 
entirely  upon  the  intention  and  apprehension  of  the  parties.  If  an  agreement 
be  made,  by  words  injuturo,  that  the  parties  will  marry,  and  that  the  act  of 
their  coming  together  shall  per  se  signify  that  they  have  thereby  concluded 
their  contract,  there  the  copula  is  a  performance  of  the  contract,  and  by  per- 
fecting reduces  it  from  an  executory  into  an  executed  agreement.  So  where 
there  was  no  express  stipulation  that  the  copula  should  perfect  the  previous 
executory  agreement,  yet  if  it  be  evident  that  the  parties  understood  and  in- 
tended that  act  to  perfect  it,  I  suppose  it  must  have  that  effect.  But  it  is  of 
the  essence  of  every  contract  that  the  parties  shall  have  a  present  contracting 
intention,  at  the  time  of  perfecting  their  contract ;  they  must  understand  that 
they  are  making  a  contract,  otherwise  no  contract  is  made.'*  **  The  proposi- 
tion contended  for,  that  copula  following  promises  to  marry  is  marriage,  with- 
out regard  to  the  present  intention  of  the  parties,  seems  to  me  unfounded  in 
principle.  If  it  were  true,  there  could  be  no  such  thing  as  an  action  for  seduc- 
tion." Where  parties  **  stipulate  that  the  marriage  shall,  instead  of  preceding 
or  accompanying  the  act,  follow  it,  it  would  never  do  to  pronounce  that  copula 
anything  else  than  unlawful. **  So  where  there  was  cohabitation  on  the  agree- 
ment as  soon  as  a  license  could  be  obtained  {Robertson  v.  State,  42  Alabama, 
509);  or  when  a  ceremony  could  be  performed  (Estate  of  Beverson,  47  Cali- 
fornia, 621 ;  Van  Tuyl  v.  Van  Tuyl,  57  Barbour  [N.  Y.  Sup.  Ct.]),  235;  it  was 
held  not  to  constitute  a  marriage.  In  short,  I  do  not  find  any  American 
decision,  directly  in  point,  to  uphold  the  doctrine  of  English  cases  and  the 
opinions  of  Bishop,  Kent,  and  Schouler  in  respect  to  the  validity  of  marriage 
per  verba  defuturo  accompanied  by  consummation.  None  are  cited  in  the  Am. 
&  Eng.  Enc.  of  Law,  nor  in  Mr.  Freeman's  learned  note,  69  Am.  Dec.  615, 
although  he  says  the  doctrine  is  *'  well  settled  by  the  great  weight  of  American 
authority." 


176  MARRUGE. 


Hot.  1,  8.  —  Balxymple  v.  Balrymple ;  Beg.  v.  ICUii.  —  VotM. 

In  prosecutions  for  bigamy,  the  question  whether  proof  of  a  ceremonial 
first  marriage  is  essential  is  differently  held.  The  weight  of  authority  is  that 
proof  of  a  common-law  marriage  is  sufficient.  Com.  v.  Jackson^  11  Bush  (Ken- 
tucky), 679 ;  21  Am.  Rep.  225;  WUHams  v.  Stale,  54  Alabama,  131 ;  25  Am. 
Rep.  665;  Hcdbrook  v.  State,  34  Arkansas,  511 ;  36  Am.  Rep.  17 ;  Slate  v.  Hughes, 
35  Kansas,  626 ;  57  Am.  Rep.  195 ;  Dumas  v.  State,  14  Tex.  Cr.  App.  464 ;  46 
Am.  Rep.  241 ;  Mills  v.  United  States,  304  ;  State  v.  FTyWc,— North  Carolina, 
—  ;  State  v.  Libby,  44  Maine,  469 ;  State  v.  Britton,  4  McCord  (So.  Car.),  256 ; 
Warner  v.  Commonwealth,  2  Virginia  Cases,  95;  State  v.  McDonald,  25  Missouri, 
176  ;  Wolverton  v.  State,  16  Ohio,  173 ;  Squire  v.  State,  46  Indiana,  459 ;  Arnold 
V.  State,  53  Georgia,  574;  Hayes  v.  People,  25  New  York,  390 ;  82  Am.  Dec. 
864.  Contra:  Com.  v.  Littlejohn,  15  Massachusetts,  163;  RosweWs  Case, 
6  Connecticut,  446;  People  v.  Humphrey,  7  Johnson  (N.  Y.),  314;  Green  v. 
State,  21  Florida,  403;  58  Am.  Rep.  670;  Hiler  v.  People,  156  Illinois,  511; 
47  Am.  St.  Rep.  221 ;  Bashaw  v.  State,  1  Yerger  (Tennessee),  177;  Sneed  v. 
Ewing,  6  J.  J.  Marshall  (Kentucky),  460 ;  22  Am.  Dec.  41. 

Where  a  marriage  is  celebrated  formally,  every  presumption  is  in  favor  of 
its  validity  and  of  the  authority  of  the  person  celebrating  to  act  as  priest  or 
magistrate,  Megginson  v.  Megginson,  21  Oregon,  387;  14  Lawyers'  Rep. 
Annotated,  540,  and  notes.  Evidence  of  reputation  is  not  admissible  to  im- 
peach a  formal  and  ceremonial  marriage.  Northrup  v.  Knowles,  52  Connecticut, 
522 ;  52  Am.  Rep.  613,  and  evidence  of  marital  cohabitation  may  not  be  over- 
come  by  contrary  declarations  of  one  of  the  parties.  Teter  v.  Teter,  101  Indi- 
ana, 129 ;  51  Am.  Rep.  742. 

Mere  cohabitation  or  reputation  does  not  constitute  marriage,  but  is  evi- 
dence from  which  a  marriage  may  be  found  by  a  jury :  Orimm^s  Estate^  131 
Penn.  State,  199 ;  6  Lawyers'  Rep.  Annotated,  717 ;  Dunharton  v.  Franklin, 
19  New  Hampshire,  257 ;  GaU  y.  GaU,  114  New  York,  109. 


B.  C.  VOL.  XVn.]        SECT.  I.  —  CONTRACT  FOR  SERVICE.  177 

Vo.  1.  —  BrM^gixdle  T.  Haald,  1  Bam.  &  Aid.  722.  — Bnle. 


MASTER  AND  SERVANT. 

Section     L  Contract  for  Service. 

Section  II.  Liability  of  Master  for  Injuries  to  Servant. 

Section  III.  Rights  after  Determination  of  Service. 

Section  IV.  Respondeat  Superior. 

Section   V.  Relation  as  regpirds  Third  Parties. 


Section  I.  —  Cordrad  for  Service. 

No.  1.  — BEACEGIEDLE  v.  HEALD. 
(K.  B.  1818.) 

RULE. 

A  CONTRACT  for  a  year's  service,  entered  into  at  a  date 
^iiterior  to  that  fixed  for  the  commencement  of  the  service, 
is  a  contract  not  to  be  performed  within  a  year,  and  no 
action  can  be  brought  for  the  breach  thereof  unless  the 
<^on tract,  or  some  memorandum  or  note  thereof  in  writing, 
^  signed  by  the  defendant  or  by  his  agent. 

Braceg^irdle  v.  HeaJd. 

1  Bam.  &  Aid.  722-727  (19  R.  R.  442). 

C'onirac*  for  Service.  —  Statute  of  Frauds^ — Not  to  he  performed  vnthin  a 

Tear. 

A  contract  for  a  year's  service^  to  commence  at  a  snbseqnent  day,  [722] 
Wog  a  contract  not  to  be  performed  within  the  year,  is  within  the  fourth 
s^on  of  the  Statute  of  Frauds,  and  must  be  in  writing ;  and  therefore  no  action 
can  be  maintained  for  the  breach  of  a  verbal  contract  made  on  the  27th  May 
ioT  a  year's  service  to  commence  on  the  SOth  of  June  following. 

The  declaration  stated,  that  in  consideration  that  the  plaintiff,  at 
lequest  of  the  defendant,  on  the  27th  May,  had  made  an  agree- 
ment to  enter  into  defendant's  service  as  groom  and  gardener,  and 
to  come  into  his  service  on  the  30fch  June  then  next,  to  serve 
VOL.  xvn.  — 12 


178  MASTER  AND   SERVANT. 

Ho.  1.  — Braoegiidlo  t.  Heald,  1  Bun.  &  Aid.  728-784. 

defendant  for  twelve  months  upon  the  terms  therein  mentioned, 

defendant  promised  to  receive  and  take  plaintiff,  and  to 
[*  723]  retain  and  employ  him  in  such  service  for  *  the  time  and 

upon  the  terms  aforesaid.  Breach,  that  although  plain- 
tiff was  willing  to  enter  into  the  service  on  the  30th  June,  and 
requested  the  defendant  to  receive  him,  yet  that  the  defendant  re- 
fused to  receive  plaintiff  into  his  service.  To  plaintiff's  damage  of 
£20.  Plea,  non-assumpsit.  At  the  trial  at  the  last  assizes  for 
the  county  of  Chester,  a  verbal  contract  similar  to  that  stated  in 
the  declaration  was  proved  to  have  been  made  on  the  27th  day 
of  May  between  the  parties,  by  which  the  defendant  agreed  to 
take  the  plaintiff  into  his  service  for  a  year  to  commence  on  the 
30th  June  following.  It  was  further  proved  that  the  plaintiff  on 
that  day  tendered  himself  as  servant  to  the  defendant,  but  that  the 
latter  had  refused  to  receive  him.  It  was  objected,  that  as  the 
plaintiff  was  not  to  enter  into  the  service  until  the  30th  June, 
and  as  the  service  was  to  continue  for  one  year  from  that  day,  the 
contract  could  not  be  performed  within  a  year  from  the  time 
when  it  was  made  (27th  May),  and  that  therefore  by  the  4th 
section  of  the  Statute  of  Frauds,  the  contract  not  being  in  writing, 
no  action  could  be  maintained  upon  it.  The  case  of  Boyddl  v. 
Drummond,  11  East,  142  (10  E.  R.  450),  was  relied  on,  and  the 
learned  Judges  upon  that  authority  thought  the  case  within  the 
statute,  and  nonsuited  the  plaintiff.  A  rule  nisi  for  setting  aside 
this  nonsuit  having  been  obtained  in  Easter  term. 

Cross  and  D.  F.  Jones  now  showed  cause.  —  This  action  is  founded 
upon  a  contract  made  on  the  27th  May  for  a  service  to  commence 

from  the  30th  June,  and  to  continue  for  twelve  months  then 
[*724]  next  following.     The  *  contract,  therefore,  would  not  be 

completed  until  the  30th  day  of  June  in  the  following  year, 
which  is  more  than  one  year  from  the  making  of  it,  and  therefore 
this  case  falls  expressly  within  the  words  of  the  Statute  of  Frauds. 
It  is  said  indeed  that  there  may  be  a  partial  performance  of  this 
contract  within  the  year  by  the  entering  into  the  service ;  but  the 
case  of  Boydell  v.  Drummond.  11  East,  142  (10  R  R  450),  is  an 
express  authority  to  show  that  a  complete  performance  within  the 
year  is  what  is  requisite,  and  that  such  a  case  as  the  present  is  within 
the  fourth  section  of  the  Act.  And  this  case  is  clearly  distinguish- 
able from  that  of  Fenton  v.  Emblers,  3  Burr.  1278  ;  1  Blackst.  353  ; 
for  there  the  contract  might,  on  a  particular  event  happening,  have 


B.  C.  VOL.  XVIL]        sect.  I.  —  CONTRACT  FOR  SERVICE.  179 

Ho.  1.  —  Braoegirdle  y.  Heald,  1  Bam.  &  Aid.  784,  785. 

been  concluded  within  a  year.  But  here,  from  the  very  terms 
of  the  contract,  it  appears  that  it  must  last  for  more  than  twelve 
months. 

J.  Williams  and  G.  R  Cross,  contra.  —  It  is  strange  that,  though 
there  must  have  been  a  great  number  of  cases  of  this  sort  occur- 
ring since  29  Car.  II.  was  passed,  this  objection  should  never 
have  been  made  before.  And  that  is  a  strong  argument  against 
its  validity.  If  indeed  the  contract  had  been  to  enter  into  the  ser- 
vice after  more  than  a  year  from  the  making  of  it,  it  would  clearly 
have  been  within  the  words  and  meaning  of  the  4th  section  of  the 
Act  But  here  the  commencement  of  the  service  is  within  a  month, 
and  the  refusal,  which  is  the  gist  of  the  present  action,  takes  place 
then.  It  is  clearly  not  necessary  in  all  cases  where  some  one  term 
specified  in  a  contract  happens  to  exceed  a  year,  that  the 
whole  contract  should  be  in  writing.  For  if  a  man  *  bargains  [  *725] 
for  goods  to  be  delivered  within  the  year,  and  that  the 
payment  shall  not  be  made  till  after  more  than  a  year  from  the 
bargain  has  elapsed,  it  is  not  necessary  in  such  a  case  that  the 
contract  should  be  in  writing.  For,  as  Lord  Ellenborough  says, 
in  Boydell  v.  Drummond,  "  in  that  case  the  delivery  of  the  goods, 
which  is  supposed  to  be  made  within  the  year,  would  be  a  complete 
execution  of  the  contract  on  the  one  part,  and  the  question  of  con- 
sideration only  would  be  reserved  to  a  future  period."  So  here,  the 
party  tenders  himself  to  serve,  which  is  all  he  can  do ;  and  this 
being  so,  it  must  be  considered  as  a  complete  performance  by  him 
of  his  contract  so  as  to  enable  him  to  maintain  this  action.  If  con- 
tracts of  this  sort  are  void  for  not  being  in  writing,  it  is  strange 
that  such  a  point  should  never  have  been  made  in  the  great  variety 
of  sessions  cases  which  depend  on  contracts  of  hiring  and  service. 
Besides,  the  policy  of  the  statute  does  not  apply  to  such  a  case ;  for 
the  object  of  the  Legislature  was  to  repress  perjury,  and  the  danger 
to  be  guarded  against  was  the  setting  up  of  supposititious  contracts 
by  the  imperfect  recollection  of  witnesses,  or  by  perjured  testimony, 
after  the  lapse  of  a  year ;  that  is  the  period  when  the  protection  of 
the  statute  is  to  commence.  It  never  was  intended  to  extend  to  a 
case  where  a  breach  must  be  committed  within  the  year.  This 
seems  to  have  been  the  general  understanding  of  the  statute,  and  the 
usage  of  mankind  has  been  consistent  with  it.  But  even  on  the 
authority  of  Fenton  v.  JEmllers,  this  rule  may  be  supported.  For 
there  it  is  expressly  laid  down  that  a  general  contract,  uncertain 


180  MASTER  AND  SERVANT. 


Ho.  1.  — Braoegirdle  y.  Heald,  1  Bun.  &  Aid.  785-727. 

in  its  duration,  or  one  which  becomes  so  by  the  insertion  of  some 

term  which  may  put  an  end  to  it  at  any  time,  is  not 
[*  726]  *  within  the  statute.    Now  here  there  is  necessarily  implied 

one  which  is  uncertain.  For  the  continuance  of  the  service 
by  the  plainti£F  depends  on  the  continuance  of  his  life.  And  that 
term  "if  he  shall  so  long  live"  must  be  considered  therefore  as 
inserted  in  the  contract.  If  it  had  been  so  expressed,  it  would 
clearly  have  been  within  Fenton  v.  Emblers;  but  that  which  is 
necessarily  implied,  needs  not  to  be  expressed.  This  case,  there- 
fore, at  all  events  falls  within  that  authority,  and  this  rule  must 
be  absolute. 

Lord  Ellenborough,  Ch.  J.  —  This  case  falls  expressly  within 
the  authority  of  Boydell  v.  Drummond ;  and  if  we  were  to  hold  that 
a  case  which  extended  one  minute  beyond  the  time  pointed  out  by 
the  statute  did  not  fall  within  its  prohibition,  I  do  not  see  where 
we  should  stop ;  for,  in  point  of  reason,  an  excess  of  twenty  years  will 
equally  not  be  within  the  Act  Such  difficulties  rather  turn  upon 
the  policy  than  upon  the  construction  of  the  statute.  If  a  party 
does  not  reduce  his  contract  into  writing,  he  runs  the  risk  of  its 
not  being  valid  in  law ;  for  the  Legislature  has  declared  in  clear  and 
intelligible  terms  that  every  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof  shall  be  in 
writing.  That  brings  it  to  the  question,  what  is  the  meaning  of 
the  word  performed  ?  will  an  inchoate  performance  or  a  part  ex- 
ecution satisfy  the  terms  of  the  statute  ?  I  am  of  opinion  that  it 
will  not,  and  that  there  must  be  a  full,  effective,  and  complete  per- 
formance.   That  not  being  so  here,  this  case  falls  within  the  fourth 

section  of  the  statute,  and  the  nonsuit  was  therefore  right. 
[*  727]       *  Bayley,  J.  —  I  cannot  distinguish  this  case  from  that  of 

Boydell  v.  Drummond,  which  I  think  was  rightly  decided. 
The  word  performance,  as  used  in  this  statute,  must  mean  a  com- 
plete and  not  a  partial  performance,  and  if  so,  this  case  falls  within 
the  fourth  section  of  the  Statute  of  Frauds.  Our  decision  will  not 
raise  those  points  in  settlement  law  which  have  been  suggested. 
For  the  statute  does  not  say  that  such  agreement  will  be  void  as  a 
hiring,  but  only  that  no  action  shall  be  maintained  upon  it ;  such 
a  hiring,  therefore,  although  not  in  writing,  will  be  quite  sufficient 
for  the  purpose  of  acquiring  a  settlement 

Abbott,  J.  —  I  am  of  the  same  opinion.  This  falls  within  the  case 
of  Boydell  v.  Drummond,  which,  I  think,  was  decided  according  to 


B.  C.  VOL.  XVIL]        sect.  I.  —  CONTRACT  FOR  SERVICE.  181 

Ho.  1.  — Bnoegixdle  y.  Heald,  1  Bun.  6u  Aid.  787.  — Votai. 

the  sound  construction  of  the  Statute  of  Frauds.  The  case  put  in 
argument,  of  an  agreement  for  goods  to  be  delivered  by  one  party  in 
six  months,  and  to  be  paid  for  in  eighteen  months,  being  after  more 
than  a  year  has  elapsed,  is  distinguishable  on  this  ground,  that 
there,  all  that  is  on  one  side  to  be  performed,  viz.  the  delivery  of 
the  goods,  is  to  be  done  within  a  year ;  whereas  here,  the  service, 
which  is  the  thing  to  be  performed  by  the  plaintiff,  cannot  possibly 
be  completed  within  that  period. 

HoLROYD,  J.  —  I  think  Boy  dell  v.  Drummond  properly  decided, 
and  that  this  case  falls  within  the  rule  there  laid  down. 

Bute  discharged, 

ENGLISH  NOTES. 

The  material  words  of  the  Statute  of  Frauds  (29  Car.  II.,  c.  3),  s.  4, 
are :  "  No  Act  shall  be  brought  whereby  to  charge  .  .  .  any  person 
•  .  •  upon  any  agreement  that  is  not  to  be  performed  within  the  space 
of  one  year  from  the  making  thereof,  unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memorandum  or  note  thereof, 
shall  be  in  writing  and  signed  by  the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him  lawfully  authorised."  In  Britain 
V.  BossUer  (C.  A.  1879),  11  Q.  B.  D.  123,  48  L.  J.  Ex.  362,  40  L.  T. 
240,  the  Court  of  Appeal  re-affirmed  the  ruling  that  the  statutory  pro- 
vision does  not  make  the  contract  void,  but  merely  renders  it  unen- 
forceable ;  and  in  accordance  with  a  well-known  principle,  held  further 
that  while  an  express  contract  unenforceable  by  reason  of  the  statute 
was  in  existence,  a  fresh  contract  could  not  be  implied  from  acts  done 
in  pursuance  of  it. 

Of  the  numerous  decisions  upon  the  enactment  set  out  at  the  com- 
mencement of  this  note,  the  following  cases  have  been  chosen  as  modern 
authorities  bearing  upon  the  interpretation  of  the  statute.  One  of  the 
best  expositions  of  the  statute  is  that  given  by  Tindal,  Ch.  J.,  in 
Souch  V.  Strawhridge  (1846),  2  C.  B.  808,  15  L.  J.  C.  P.  168.  *'It 
(the  statute)  speaks  of  any  agreement  that  is  not  to  be  performed  within 
the  space  of  one  year  from  the  making  thereof,  pointing  to  contracts 
the  complete  performance  of  which  is  of  necessity  extended  beyond  the 
space  of  a  year.  That  appears  clearly  from  the  case  of  Boy  dell  v.  Drum- 
moTidy  the  rule  to  be  extracted  from  which  is  that  where  the  agreement 
distinctly  shows,  upon  the  face  of  it,  that  the  parties  contemplated  its 
performance  to  extend  over  a  greater  space  of  time  than  one  year,  the 
case  is  within  the  statute;  but  that  where  the  contract  is  such  that  the 
whole  may  be  performed  within  a  year,  and  there  is  no  stipulation  to 
the  contrary,  the  statute  does  not  apply."     This  reading  of  the  statute 


182  MASTER  AND   SERVANT. 

Ho.  1. — Braoefi^irdle  y.  Heald.  —  Votai. 

was  approved  in  McGregor  v.  McGregor  (C.  A.  1888),  21  Q.  B.  D. 
424,  57  L.  J.  Q.  B.  691,  37  W.  R.  45.  In  that  case  the  question  arose 
on  a  verbal  undertaking  by  the  wife  to  maintain  herself  and  her  chil- 
dren, the  husband  agreeing  to  allow  the  wife  a  weekly  sum  for 
maintenance. 

The  better  opinion  would  seem  to  be  that  an  objection  founded  upon 
the  statute  is  not  competent  where  the  contract  is  executed.  Mavor  v. 
Pyne  (1825),  3  Bing.  285,  28  R.  R.  625;  Souch  v.  Strawhridge,  supra  ; 
Knowlman  v.  BlueU  (Ex.  Ch.  1874),  L.  R.  9  Ex.  307,  48  L.  J.  Ex. 
151,  22  W.  R.  758.  But  where  a  contract  is  in  part  executed,  the 
statute  may  still  afEord  a  good  defence  as  to  so  much  of  the  contract  as 
remains  executory.  Boy  dell  v.  Drumvwnd  (1809),  11  East,  142,  10  R. 
R.  460. 

In  Beeston  v.  Collyer  (1827),  4  Bing.  309,  29  R.  R.  676,  the  plaintifE 
commenced  his  service  in  March,  and  served  the  defendant  for  many- 
years  as  his  clerk.  In  1811  the  plaintiff's  salary  was  paid  quarterly, 
but  from  1820  to  1826  it  was  paid  monthly.  In  December,  1826,  the 
defendant  dismissed  the  plaintiff  without  assigning  any  reason.  In  an 
action  for  wrongful  dismissal  the  Court  held  that  there  was  an  implied 
yearly  hiring,  and  that  the  contract  need  not  be  in  writing. 

An  opinion  is  expressed  by  Willes  and  Btles,  JJ.,  in  Cawthome 
V.  Cordrey  (1863),  13  C.  B.  (N.  S.)  406,  32  L.  J.  C.  P.  152,  to  the  fol- 
lowing effect :  If  a  contract  is  made  on  a  day,  for  a  service  for  a  year, 
to  commence  on  the  following  day,  then  inasmuch  as  the  law  takes  no 
notice  of  fractions  of  a  day,  the  day  on  which  the  contract  was  made 
might  be  rejected,  and  the  contract  would  not  require  to  be  evidenced 
by  writing.  The  point  was  adverted  to  in  Britain  v.  RossUer  (C.  A. 
1879),  11  Q.  B.  D.  123,  48  L.  J.  Ex.  362,  40  L.  T.  240,  but  left  open. 
At  most  the  opinion  is  merely  a  dictum;  for  the  facts  in  Cawthome  v. 
Cordrey  were  that  there  was  a  discussion  on  a  Sunday  relating  to  a 
service  to  commence  on  a  Monday.  On  the  Monday  the  plaintiff,  with 
the  knowledge  and  consent  of  the  defendant,  commenced  the  service,  and 
was  paid  a  sum  on  account  of  wages.  The  jury  were  directed  that  they 
might  infer  a  new  implied  contract  on  the  Monday  for  a  year's  service 
from  that  day,  and  this  was  held  a  proper  direction.  As  regards  the 
implication  of  a  new  contract  the  decision  is  contrary  to  Britain  v. 
Rossiter,  and  the  decision  can  only  be  supported  on  the  ground  that 
what  took  place  on  the  Sunday  was  mere  negotiation  culminating  in  an 
actual  contract  on  the  Monday. 

Davey  v.  Shannon  (1879),  4  Ex.  D.  81,  48  L.  J.  Ex.  459,  arose  upon 
a  demurrer  to  the  statement  of  defence.  The  material  facts  were  that 
in  1868  the  defendant  entered  into  the  plaintiff's  employment  as  a  fore« 
man  tailor  for  three  years,  on  the  terms  (inter  alia)  that  if  the  defend- 


E.  a  VOL.  XVII.]        SECT.  I.  —  CONTRACT  FOB  SERVICE.  183 

No.  1.  —  Braoegirdle  y.  Heald.  —  Hotel. 

ant  should  leave  the  plaintifE,  he  should  not  engage  in  the  service  of 
any  one  carrying  on.  or  himself  carry  on,  the  husiness  of  a  tailor  within 
a  certain  area.  The  defendant  continued  in  the  plaintiff's  employment 
on  the  like  terms  (except  as  to  the  period  of  employment)  until  1877. 
The  hreach  alleged  was  that  in  1877  the  defendant  left  the  plaintiff, 
and  carried  on  husiness  as  a  tailor  within  the  prohibited  area.  Judg- 
ment was  given  for  the  defendant,  on  the  ground  that  the  Statute  of 
Frauds  afforded  an  answer  to  the  claim  which  was  founded  on  a  verbal 
contract,  in  that  the  agreement  not  to  set  up  or  engage  in  the  particular 
trade  was  to  continue  for  the  joint  lives  of  the  defendant  and  the  plain- 
tiff, and  was  therefore  primd  facie  not  to  be  performed  within  a  year. 

This  judgment  was  questioned  by  the  Court  of  Appeal  in  McGregor 
V.  McGregor  (C.  A.  1888),  21  Q.  B.  D.  424,  67  L.  J.  Q.  B.  591,  37  W. 
B.  45,  where  the  action  was  for  arrears  of  maintenance  under  a  verbal 
agreement  for  separation  between  husband  and  wife  for  consideration 
executed  on  the  part  of  the  wife  by  withdrawing  a  summons  for  assault. 
The  observation  of  Lord  Justice  Bowen  upon  Davey  v.  Shannon  may 
betaken  as  an  accurate  statement  of  the  law.  ''It  was  laid  down" 
(be  says), "  in  Peter  v.  Compton  (Skinner,  353, 1  Sm.  L.  C.)  as  the  head- 
note  states,  that  '  an  agreement  that  is  not  to  be  performed  within  the 
space  of  one  year  from  the  making  thereof '  means  in  the  Statute  of 
Frauds  an  agreement  wbich  appears  from  its  terms  to  be  incapable  of 
performance  within  the  year.  In  so  far  as  Davey  v.  Shannon  departs 
from  this  principle  it  seems  to  me  to  run  counter  to  the  current  of 
authority  on  the  subject."  It  is  possible,  however,  that  the  actual 
decision  in  Davey  v.  Shannon  may  still  be  supported.  For  Beeston  v. 
CoUyeTj  supra,  would  give  some  colour  to  the  contention  that  the  agree- 
ment as  renewed  by  implication  after  the  3  years  was  to  continue  for  a 
year;  and  any  stipulation  regarding  the  defendant's  employment  at  the 
expiration  of  his  service  with  the  plaintiff  would  carry  the  matter  over 
the  statutory  period. 

A  printed  heading  may  constitute  a  sufficient  signature  within  the 
4th  sect,  of  the  Statute  of  Frauds:  Tourret  v.  Cripps  (1879),  48  L.  J. 
ch.  567,  27  W.  R.  706.  The  law  was  the  same  regarding  the  17th 
sect,  now  replaced  by  sections  4  and  60  of  the  Sale  of  Goods  Act,  1893 
(56  &  57  Vict.,  c.  71),  Saunderson  v.  Jackson  (1800),  2  Bos.  &  P.  238, 
5  R.  R.  580;  Schneider  v.  Norris  (1814),  2  M.  &  S.  286, 15  R.  R.  250. 
The  signature  need  not  be  at  the  end  of  the  document:  Knight  v. 
Crockford  (1794),  1  Esp.  190,  5  R.  R.  729. 

The  document  must  be  in  existence  at  the  time  when  action  is 
brought:  Lucas  v.  Dixon  (C.  A.  1889),  22  Q.  B.  D.  357,  58  L.  J.  Q.  B. 
161,  37  W.  R.  370.  This  is  a  decision  on  the  17th  section,  but  follows 
and  confirms  earlier  decisions  on  the  4th  section. 


184  MASTER  AND  SERVANT. 


No.  1.  —  Bnoegirdle  y.  Heald.  —  VotM. 


AMERICAN  NOTES. 

This  case  is  cited  in  Parsons  and  Lawson  on  Contracts,  Browne  on  Domes- 
tic Relations,  Wood  on  Master  and  Servant,  and  Keed  and  Browne  on  Statute 
of  Frauds,  to  the  doctrine  that  if  the  contract  may  be  performed  within  a 
year  on  one  side,  although  not  on  the  other,  it  is  not  within  the  statute. 
See  (many  citing  Donnellan  v.  Read,  3  B.  &  Ad.  899;  arUej  vol.  6,  298) 
Blanding  v.  Sargent,  33  New  Hampshire,.  239;  66  Am.  Dec.  720;  Smalley  v. 
Greene,  62  Iowa,  241 ;  35  Am.  Rep.  267 ;  McClellan  v.  Sandford,  26  Wiscon- 
sin,  595;  Wolke  v.  Fleming,  103  Indiana,  110;  Jonei  v.  Hardesty,  10  Gill  & 
Johnson  (Maryland),  404 ;  Berry  v.  Doremus,  30  New  Jersey  Law,  399 ;  Camp- 
ion V.  Martin,  5  Richardson  Law  (So.  Car.),  14;  HoUbrook  v.  Armstrong,  10 
Maine,  31;  DarU  v.  Head,  90  Kentucky,  255;  29  Am.  St.  Rep.  369;  Lock- 
wood  V.  Barnes,  3  Hill  (N.  Y.),  128  (citing  the  principal  case);  Holbrook  v. 
Armstrong,  10  Maine,  31  (citing  the  principal  case) ;  Reinheimer  v.  Carter,  31 
Ohio  State,  579.  Reed  says :  "  The  *  one-side '  rule  of  Donnellan  v.  Bead  has 
met  with  much  opposition  in  America.**  In  Durfee  v.  O'Brien,  16  Rhode 
Island,  213,  the  Court  say :  "  In  this  country,  however,  there  has  been  con- 
siderable conflict  of  opinion.  In  Alabama,  Geoi^a,  Maine,  South  Carolina, 
Maryland,  Illinois,  Ohio,  Indiana,  Arkansas,  Missouri,  and  Wisconsin,  the 
English  rule  has  been  followed.  See  Rake  v.  Pope,  7  Alabama,  161 ;  Johnson 
V.  Watson,  1  Georgia,  348 ;  Compton  v.  Martin,  5  Richardson  (So.  Car.),  14 ; 
ElUcoit  y. Turner,  4  Maryland,  476 ;  Curtis  v.  Sage,  35  Illinois,  22  ;  Randall  v. 
Turner,  17  Ohio  St.  262 ;  Haugh  v.  Blythc*8  Executors,  20  Indiana,  24;  Pledger 
V.  Garrison,  42  Arkansas,  246;  SuggetCs  Adm'r  v.  Cason's  Adm*r,  26  Missouri, 
221;  McClellan  v.  Sanford,  26  Wisconsin,  595. 

"  In  New  Hampshire  the  decisions  are  conflicting ;  the  earliest  and  latest 
sustaining  the  English  rule.  See  Blanding  v.  Sargent,  33  New  Hampshire,  239 ; 
Emery  v.  Smith,  46  New  Hampshire,  151 ;  Perkins  v.  Clay,  54  New  Hampshire, 
518. 

"The  contrary  doctrine  has  been  held  in  Vermont,  Massachusetts,  and 
New  York.  See  Pierce  v.  Estate  of  Paine,  28  Vermont,  34;  Marcy  v.  Marcy, 
9  Allen,  8;  Lockwood  v.  Barnes,  3  Hill  (New  York),  128;  Broadwell  v.  Get- 
man,  2  Denio,  87 ;  Kellogg  v.  Clark,  23  Hun,  393." 

In  Dant  v.  Head,  supra,  the  Court  said :  "  It  now  seems  to  us  the  statute 
was  intended  and  does  properly  apply  only  to  an  agreement  that  is  not  to  be 
performed  by  either  party  within  a  year,  but  not  to  one  which  is  to  be  or 
has  been  performed  by  one  or  either  of  them  within  such  period,  and  that 
construction  has  been  adopted  elsewhere.  Atchison,  etc.  R,  Co,  v.  English, 
38  Kansas,  110;  McClellan  v.  Sanford,  26  Wisconsin,  595;  Curtis  v.  Sage,  35 
Illinois,  22;  Berry  v.  Doremus,  30  New  Jersey  Law,  403;  Haugh  v.  Blythe,  20 
Indiana,  24 ;  SmaUey  v.  Greene,  52  Iowa,  241 ;  35  Am.  Rep.  267  ;  Blanding  v. 
Sargent,  33  New  Hampshire,  239 ;  66  Am.  Dec.  720.  For  if  the  practical 
effect  and  operation  of  the  statute  is,  as  has  been  uniformly  held  by  this 
Court,  in  every  case  where  one  party  has  performed  an  agreement  within  a 
year,  to  hold  the  other  party  liable  on  such  agreement,  although  he  is  not  to 
perform  within  a  year,  such  should  be  construed  and  held  to  be  the  meaning 


B-  C.  TOL.  XVII.]        SECT.  I.  —  CONTRACT  FOR  SERVICE.  185 

Ho.  1.  —  Braoegirdle  ▼.  Heald.  — Hotel. 

and  import  of  the  language  used.  In  fact,  the  statute  properly  applies  to 
agreements  that  are  wholly  executory;  and  one  which  has  been  performed  by 
one  of  the  parties  within  a  year  is,  to  that  extent,  executed,  and  cannot,  with 
propriety,  be  called  an  agreement  to  be  performed  within  a  year." 

Some  Courts  hold  that  although  that  which  one  of  the  parties  is  to  do  is  all 
to  be  done  within  the  year,  still  if  the  other  party's  promise  is  not  to  be 
performed  within  the  year,  the  contract  is  within  the  statute.  Whipple  v. 
Parker,  29  Michigan,  375;  Montague  v.  Garrett,  3  Bush  (Kentucky),  297; 
Broadwell  v.  Getman,  2  Denio  (New  York),  87. 

An  oral  contract  for  service  for  a  year,  to  begin  as  soon  as  the  employee 
conld,  and  actually  beginning  a  week  after  the  agreement,  is  within  the 
statute-  Sutcliffe  v.  Atlantic  Mills,  13  Rhode  Island,  480;  43  Am.  Rep.  39. 
But  not  so  where  the  contract  was  for  a  year  from  the  next  day.  Dickson  v. 
Frisbee,  52  Alabama,  165 ;  23  Am.  Rep.  565  (citing  Cawthome  v.  Cowdrey,  13 
C.  B.  [N.  S.]  406). 

In  Marcy  y.  Marcy,  9  Allen  (Mass.)  8,  it  was  held,  on  a  learned  review  of 
the  English  cases,  that  no  action  lies  on  an  oral  promise  to  pay,  at  a  time 
more  than  one  year  from  the  making  of  the  promise,  for  land  conveyed  to 
the  promisor. 

In  Duff  V.  Snider,  54  Mississippi,  245,  it  is  said  the  authorities  are  con- 
flicting, but  the  right  to  recover  in  assumpsit  is  clear. 

In  Broadwell  v.  Geiman,  2  Denio  (New  York),  87,  the  holding  was  that  a 
parol  agreement  not  wholly  to  be  performed  within  a  year  is  void,  but 
Beardslet,  J.,  remarked  obiter  (citing  the  principal  case  and  Donnellan  v. 
Beed) :  ^*  But  I  would  not  be  understood  as  yielding  my  assent  to  the  principle 
stated.  It  seems  to  me  in  plain  violation  of  the  statute.  Every  verbal  con- 
tract which  is  not  to  be  performed  within  a  year  from  the  making  thereof  is 
declared  to  be  void.  Although  the  terms  of  the  agreement  may  require  full 
performance  on  one  side  within  a  year,  I  do  not  see  how  this  can  exclude  it 
from  the  statute,  the  other  side  being  incapable  of  execution  until  after  the 
year  has  elapsed.  The  agreement  is  entire,  and  if  it  cannot  be  executed  fully, 
on  both  sides,  within  the  year,  I  think  it  is  void.  What  difference  does  it 
make  that  one  party  can,  while  the  other  cannot,  complete  the  contract  within 
a  year?  Such  an  agreement  is  not,  in  terms,  excepted  from  the  statute,  and 
the  reason  for  the  enactment  applies  to  it  with  full  force.  But  it  is  unneces- 
sary to  pursue  this  subject ;  and  I  dismiss  it  with  the  remark  that  although 
where  one  party  has  fully  performed  on  his  part  within  the  year,  the  agree- 
ment may  notwithstanding  be  void,  still  he  is  not  remediless,  for  he  may 
maintain  a  general  indebitatus  assumpsit  against  the  party  who  refuses  to 
proceed  further  under  the  contract,  and  thus  recover  a  compensation  for 
what  has  been  advanced  and  received  upon  it.  (Lockwood  v.  Barnes,  Hoi" 
brook  V.  Armstrong,  supra;  see  also  Smith's  Leading  Cases,  as  referred  to 
above ;  Maror  v.  Pyne,  2  Car.  &  Payne,  91,  and  3  Bing.  285.)" 

In  Sheehy  v.  Adarene,  41  Vermont,  541 ;  98  Am.  Dec.  623,  it  is  said,  citing 
the  principal  case :  **  In  all  the  cases  where  the  agreement  has  been  held  to 
be  within  the  statute,  the  action  was  for  the  breach  of  that  side  of  the  con- 
tract that  was  not  to  be  performed  within  the  year."    See  Pierce  v.  Paine*s 


186  MASTER  AND  SERVANT. 

Ho.  8.  —  Winitono  y.  Linn,  1  Bam.  &  Creif.  460.  —  Bnle. 

Estat€y2S  Vermont,  34.  Reed  says  (Statute  of  Frauds,  sect.  194):  "It  is 
believed  that  almost  every  case  cited  as  being  within  the  year  clause  of  the 
statute  is  implicitly  inconsistent  with  the  singular  view  taken  in  the  case  of 
Sheehy  v.  Adarene"  supra.  "  The  point  is  novel  and  can  scarcely  be  said  to 
be  supported  by  authority,  because  while  in  a  number  of  cases  the  statute  has 
been  held  a  good  defence  on  behalf  of  the  party  whose  performance  requires 
more  than  a  year,  there  are  some  examples  of  a  recovery  on  the  *  one  side '  rule 
being  allowed  against  such  a  person."    See  notes,  arUei  vol.  6,  305. 


No.  2.  — WINSTONE  v.  LINN. 
(K.  B.  1823.) 

No.  3.  — KEAENEY  t?.  WHITEHAVEN  COLLIEEY 
COMPANY. 

(0.  A.  1893.) 

RULE. 

The   stipulations  in  a  contract   for  service,  or  in  an 
apprenticeship  deed,  are  independent. 

Winstone  v.  Linn. 

1  Bam.  &  Cress.  460-471  (25  R.  R.  455). 

Contract  for  Service.  —  Independent  Stipulations. 

[460]  Declaration  npon  an  indenture  of  apprenticeship  for  breach  of  a 
covenant  whereby  the  defendant,  in  consideration  of  a  premium  of  £90, 
covenanted  to  instruct  the  apprentice  in  his  trade,  and  provide  him  with  diet, 
etc.  Breach,  that  the  defendant  did  not,  after  making  the  indenture,  instruct 
the  apprentice,  but  on  the  contrary  refused  so  to  do;  and  after  the  making 
of  the  indenture,  to  wit,  on  the  13th  of  July,  refused  then  or  at  any  other 
time  to  instruct  him,  and  that  the  defendant  did  not,  after  the  making  of  the 
indenture,  provide  the  apprentice  with  diet,  etc.,  but  on  the  contrary  thereof,  on 
the  13th  of  July  compelled  him  to  quit  his  service  before  the  expiration  of  the 
term.  Plea,  as  to  the  not  instructing  and  not  providing  with  diet  and  lodging 
before  the  10th  of  July,  that  he  did  instruct  and  provide  him  with  diet  and 
lodging  till  that  time.  Upon  this  plea  issue  was  taken  and  joined.  And  as  to  the 
not  instructing  and  not  providing  with  diet  and  lodging  upon  and  after  the  10th 
of  July,  that  the  defendant  was  ready  and  willing  to  instruct  and  provide  the 
apprentice  with  diet  and  lodging  during  the  whole  term,  but  that  the  apprentice 
would  not,  after  making  the  indenture,  serve  the  defendant,  but  frequently,  and 
particularly  on  the  10th  of  July,  refused  so  to  do,  and  that  on  the  10th  day  of 


R.  C.  VOL.  XVII.]        SECT.  I.  — CONTRACT  FOR  SERVICE.  187 

No.  8.  —  Wiiutone  y.  Idim,  1  Bun.  &  Creii.  460,  461. 

Jnly  the  apprentice  refased  to  do  particular  acts  therein  mentioned,  which  he 
was  bound  to  do  as  such  apprentice ;  and  on  the  contrary  thereof,  against  the 
positive  orders  of  the  defendant,  absented  and  wholly  withdrew  himself  from 
his  service,  declaring  that  he  never  intended  to  return  again  to  his  service, 
whereby  defendant  was  prevented  from  instructing  and  providing  him  with 
diet  and  lodging  aocordlng  to  the  indenture.  Keplication,  that  after  the  appren- 
tice had  been  guUty  of  the  supposed  breaches  of  duty  as  mentioned  in  the  plea, 
to  wit,  on  the  ISth  of  July,  he,  the  apprentice,  returned  to  the  defendant,  and 
offered  to  serve  him  as  such  apprentice  during  the  residue  of  the  term,  and 
requested  him  to  receive  him,  and  provide  him  with  diet  and  lodging,  but  the 
defendant  refused  so  to  do.  Demurrer,  assigning  for  cause  that  plaintiffs  had  by 
their  declaration  complained  of  a  continued  breach  of  covenant  in  not  instruct- 
ing, etc.,  the  apprentice  from  the  time  of  making  the  indenture  till  the  com- 
mencement of  the  suit ;  and  although  the  second  plea  answered  to  the  whole 
time  in  the  declaration  after  the  10th  of  July,  yet  that  the  plaintiffs  had  omitted 
to  reply  to  such  parts  of  defendant's  second  plea  as  related  to  not  instructing, 
etc.,  the  apprentice  on  the  10th  of  July,  and  between  that  time  and  the  ISth  of 
July :  Heldj  that  the  plaintiffs'  claim  was  not  entire,  but  divisible,  and  covered 
every  part  of  the  time  during  which  the  master  refused  to  instruct  the  appren- 
tice, and,  consequently,  that  there  was  no  discontinuance  :  Held,  also,  that  the 
replication  was  not  a  departure  from  the  declaration,  the  gravamen  of  the  com- 
plaint being  that  the  defendant  had  compelled  the  apprentice  to  quit  his  service, 
and  the  replication  showing  the  manner  in  which  he  had  so  done  it :  Hdd,  also, 
that  the  covenants  in  an  indenture  of  apprenticeship  are  independent  covenants, 
and  consequently  that  acts  of  misconduct  on  the  part  of  the  apprentice  stated  in 
the  plea  were  not  an  answer  to  an  action  brought  for  breach  of  the  covenant  by 
the  master  to  instruct  and  maintain  the  apprentice  during  the  term  agreed  upon 
by  the  indenture. 

Covenant  upon  an  indenture  of  apprenticeship,  bearing  date  the 
11th  April,  1820,  whereby  the  defendant,  in  consideration  of  a 
premium  of  £90,  covenanted  with  the  plaintiffs  that  he,  defendant, 
would,  during  four  years,  instruct  Winstonethe  younger  in 
the  *  trade  and  business  of  a  tobacconist,  and  also  provide  [*  461] 
him  with  suflBcient  diet  and  lodging  in  the  dwelling-house 
of  the  defendant.  The  declaration  averred,  that  the  son  entered 
into  the  defendant's  service,  and  then  assigned  a  breach  as  follows  : 
that  the  defendant  did  not,  after  the  making  of  the  indenture, 
instruct  the  apprentice  in  the  trade  of  a  tobacconist :  but,  on  the 
contrary  thereof,  had  hitherto  altogether  refused  so  to  do.  And 
after  the  making  of  the  said  indenture,  to  wit,  on  the  13th  day  of 
July,  wholly  refused  then  or  at  any  other  time  to  instruct  the  said 
Thomas  Winstone  the  younger  in  the  said  trade,  contrary  to  the 
covenant    And  that  the  defendant  did  not,  nor  would,  after  the 


188  MASTEB  AND  SERVANT. 

No.  8. — Wiiutone  y.  Luin,  1  Bun.  &  Cnm.  461,  46& 

making  of  the  said  indenture,  provide  the  said  T.  Winstone  the 
younger  with  suitable  diet  and  lodging,  although  he,  the  said  T. 
Winstone  the  younger,  at  all  times  after  the  making  of  the  said 
indenture  was  willing  to  take  his  meals  with  the  defendant ;  but 
on  the  contrary  thereof,  he  the  defendant,  afterwards,  to  wit,  on 
the  13th  day  of  July,  in  the  year  aforesaid,  compelled  the  T. 
Winstone  the  younger  to  quit  his  service  before  the  expiration  of 
the  time  agreed  upon  for  the  said  T.  W.  remaining  therein,  and 
refused  to  maintain  and  keep  him,  contrary,  &c.  Plea  first,  as  to  so 
much  of  the  breaches  of  covenant  as  related  to  the  not  instructing 
the  said  T.  Winstone  the  younger,  and  not  providing  him  with  diet 
and  lodging  before  the  10th  day  of  July ;  that  he  did  instruct  him 
till  that  time,  and  did  provide  him  with  suitable  and  sufficient 
diet  and  lodging,  according  to  the  tenor  of  the  covenant.  Upon 
this,  issue  was   taken  and  joined.     And  as  to  so  much  of  the 

breaches  of  covenant  as  related  to  the  not  instructing  the 
[♦462]  said  T.  Winstone  the  younger,  and  not  providing  *him 

with  diet  and  lodging  upon  and  after  the  10th  day  of 
July  aforesaid ;  that  he,  the  defendant,  was  ready  and  willing  to 
instruct  the  said  T.  Winstone  the  younger  in  the  said  busi- 
ness, and  provide  him  with  diet  and  lodging  during  the  whole 
of  the  four  years ;  but  that  the  said  T.  W.  the  younger  did  not, 
nor  would  after  the  making  of  the  said  indenture  serve  the  defend- 
ant as  an  apprentice  in  his  said  trade ;  but  afterwards,  on  the 
12th  April  in  the  year  aforesaid,  and  on  divers  other  days  and 
times  between  that  day  and  the  said  10th  day  of  July,  wholly 
refused  so  to  do  ;  and  on  several  of  those  days  and  times  aforesaid 
refused  to  obey  him  in  his  said  business,  and  to  render  him,  defend- 
ant, a  proper  account  of  his  moneys  from  time  to  time  entrusted  to 
the  said  T.  W.  the  younger,  as  such  apprentice.  And  that  when, 
on  the  10th  of  July,  he  ordered  the  said  T.  W.  the  younger  to  add  up 
the  day-book  used  in  his  said  business,  which  it  was  the  duty  of  the 
said  T.  W.  the  younger,  as  such  apprentice,  to  have  done,  he,  the  said 
T.  W.  the  younger,  refused  so  to  do ;  and  on  the  contrary  thereof,  then 
and  there,  against  the  positive  orders  of  the  defendant,  absented  and 
wholly  withdrew  himself  from  the  service  of  the  defendant  in  his 
said  business ;  he,  T,  W.  the  younger,  then  and  there  declaring  to 
the  defendant  that  he  never  intended  to  return  again  to  such 
service,  whereby  the  defendant  was  prevented  from  instructing  the 
said  T.  W.  the  younger,  and  from  providing  him  with  diet  and  lodg- 


B-  C.  VOL.  XVII.]        SECT.  I.  —  CONTRACT  FOR  SERVICE.  189 

No.  8.  —  Wi2iitoiM  Y.  Unn,  1  Bam.  &.  Creif .  46SM64. 

ing,  according  to  the  said  indenture,  as  he,  the  defendant,  would 
otherwise  have  done.  Eeplication,  that  after  the  said  T.  W.  the 
younger  had  been  guilty  of  the  said  supposed  misconduct  and 
breaches  of  duty  as  such  apprentice  as  in  the  said  second 
plea  mentioned,  and  during  the  term  in  the  *  indenture  [*463] 
mentioned,  and  before  the  exhibiting  of  the  plaintiffs  bill, 
to  wit,  on  the  13th  day  of  July,  he,  the  said  T.  W.  the  younger, 
returned  to  the  defendant,  and  tendered  and  offered  himself  to  the 
defendant,  to  serve  and  obey  him  as  such  apprentice,  and  was  then 
and  there  ready  and  willing,  and  offered  to  the  defendant  then  and 
during  the  residue  of  the  said  term,  well  and  truly  to  perform  all 
things  in  the  said  indenture  contained  on  his  part  to  be  performed ; 
and  then  and  there  requested  the  defendant  to  receive  him,  the 
said  T.  W.  the  younger,  as  such  apprentice,  and  to  continue  to 
instruct  him  in  the  said  trade  of  a  tobacconist,  and  provide  him  with 
sufficient  diet  and  lodging  in  pursuance  of  the  indenture ;  but  that 
the  defendant  then  and  there  wholly  refused  to  teach  or  instruct 
the  said  T.  W.  the  younger  in  the  said  trade,  and  wholly  refused 
so  to  do,  or  any  longer  to  provide  him  with  suitable  and  sufficient 
diet  and  lodging  according  to  the  indenture. 

Special  demurrer,  assigning  for  causes,  that  although  the  plain- 
tiff in  the  declaration  complained  of  a  continued  breach  of  covenant, 
in  not  instructing  the  apprentice  from  the  time  of  making  the 
indenture  to  the  commencement  of  the  suit,  as  well  as  of  a  par- 
ticular refusal  to  instruct  him,  alleged  to  have  been  made  on  the 
13th  July  in  the  year  aforesaid;  and  that  the  defendant  would 
not,  after  the  making  of  the  said  indenture,  provide  the  said  T.  W. 
the  younger  with  suitable  diet  and  lodging;  and,  although  the 
second  plea  of.  the  defendant  answers  to  the  whole  of  the  time  in 
the  declaration,  on  and  after  the  10th  day  of  July  in  the  year 
aforesaid,  yet  the  plaintiffs  have  wholly  omitted  to  reply  to  such 
part  of  the  defendant's  second  plea,  as  relates  to  not  instructing 
the  said  T.  W.  the  younger,  and  not  providing  him  with 
diet  and  lodging  *  on  the  said  10th  day  of  July,  or  between  [*  464] 
that  time  and  the  13th  day  of  July,  and  have  thereby 
wholly  discontinued  their  action  as  to  the  latter  period  of  time. 

K  Lawes,  for  the  demurrer,  contended,  first,  that  the  master  of  an 
apprentice  was  not  bound  to  take  him  back  into  his  service  under 
the  circumstances  disclosed  in  the  special  pleas  ;  and  admitted  by 
the  replication.     Cuff  v.  Broivn,  5  Price,  297  (19  E.  R.  621).    So 


190  MASTEB  AND  SERVANT. 


Ho.  8.  — Winitone  y.  linn,  1  Bun.  6t,  Creii.  464^  466. 


an  apprentice  is  not  bound  to  return,  if  required  so  to  do,  after 
license  from  his  master  to  leave  his  service.  Anon.  6  Mod,  70. 
The  contract  is  entire,  and  imports  mutual  conditions  to  be  per- 
formed at  the  same  time ;  and  the  plaintiffs,  having  in  every  respect 
violated  the  contract,  cannot  sue  the  defendant  upon  it.  Kingston 
V.  Preston,  2  Doug.  691.  The  defendant's  performance  is  also 
prevented  by  the  act  of  one  of  the  plaintiffs.  1  Roll.  Abr.  455« 
This  is  like  the  case  of  a  brewer  who,  having  repeatedly  furnished 
bad  beer,  cannot  complain  of  a  refusal  to  deal  with  him.  Hoi- 
combe  v.  ffewson,  3  Camp.  391  (11  R  R  746).  The  case  of 
Weaver  v.  Sessions,  6  Taunt.  154,  is  very  different  from  the  present ; 
the  contract  there  not  being  entire,  and  there  having  been  a  liberty 
to  buy  of  others ;  besides,  the  plea  in  that  case  did  not  connect  the 
malt  purchased  with  the  orders  given.  The  statutes  respecting 
apprentices  do  not  affect  the  case;  and  there  is  no  distinction 
between  contracts  of  apprenticeship  under  seal,  and  those  between 
master  and  servant  by  parol  In  several  nisi  prius  cases  between 
master  and  servant,  misconduct  on  the  part   of  the  latter,  and 

refusal  to  obey  his  master's  commands,  have  been  held 
[*  465]  sufficient  to  justify  dismissal  and  non-payment  of  *  wages. 

Robinson  v.  Hindman,  3  Esp.  235;  Spain  v.  Arrwtt,  2 
Star.  256 ;  Williams  v.  Bice,  Middlesex  sittings  after  Easter  term, 
3  G.  IV.,  before  Abbott,  C.  J.  Secondly,  he  contended  that  there 
was  a  discontinuance,  as  pointed  out  in  the  causes  of  demurrer  to 
the  replication ;  and  if  so,  the  plaintiff  could  not  have  judgment 
whether  the  defendant's  pleas  be  good  or  bad.  Tippet  v.  May, 
1  Bos.  &  P.  411.  The  plaintiff  having  taken  issue  on  the  defend- 
ant's pleas  as  to  his  performance  of  the  covenant  from  the  execu- 
tion of  the  indenture  to  the  13th  of  July,  the  whole  of  the  first 
breach  could  not  be  considered  as  confined  to  a  refusal  to  teach, 
etc.  on  that  day.  This  case,  therefore,  differs  from  Harris  v. 
Mantle,  3  T.  R  307.  Thirdly,  there  is  a  departure,  inasmuch 
as  the  declaration  states  that  the  apprentice  continued  in  the  defend- 
ant's service  to  the  13th  of  July,  and  that  the  latter  forced  him 
to  quit  his  service  on  that  day ;  but  the  replication  admits  the 
contrary,  and  only  relies  on  a  refusal  to  take  him  back  on  his  return 
to  the  defendant  on  the  13th  of  July.  A  departure  in  pleading  is 
matter  of  substance  and  ground  of  general  demurrer.  Niblett  v. 
Smith,  4  T.  E.  504,  and  other  cases  cited  in  2  Saund.  84  b.  Lastly, 
the  replication  is  bad,  as  concluding  with  a  general  prayer  of 


B.  C.  VOL.  XVn.J        SECT.  L  —  CONTRACT  FOR  SERVICE.  191 

No.  8.  —  WuiBtoxiA  Y.  linn,  1  Bam.  &  Creif.  465-467. 

damages.  The  plaintiflf  should  have  new  assigned.  Anon.  6  Mod. 
70;  Scott  V.  Dixon,  2  Wils.  4;  1  Saund.  299  a.  This  is  also 
ground  for  general  demurrer. 

Bayley,  J.  —  There  is  not  any  pretence  for  saying  that 
there  is  a  departure  in  this  case.  It  would  have  *  been  a  [*  466] 
departure  if  the  plaintififs  had  put  their  case  in  the  repli- 
cation upon  a  different  ground  from  that  contained  in  their  declara- 
tion; but  I  am  of  opinion  that  they  have  not  done  so.  The 
declaration  charges  generally,  that  the  master,  from  the  time  of 
making  the  indenture,  did  not  instruct  and  maintain  the  apprentice, 
and  that  he  compelled  him  to  leave  his  service  on  the  13th  of  July, 
The  gravamen  of  the  complaint  is,  that  the  master  compelled  the 
apprentice  to  leave  the  service.  The  replication  then  shows  the 
mode  by  which  the  master  compelled  him  to  quit  his  service,  viz. 
by  refusing  to  receive  him  again  after  his  misconduct.  That  is 
not  taking  a  new  ground,  but  supports  and  fortifies  the  declaration; 
it  cannot,  therefore,  be  a  departure.  Co.  Lit.  304  a ;  2  Saund.  84  a. 
I  am  also  of  opinion  that  there  is  no  discontinuance  in  this  case. 
It  is  said  that  the  plaintiffs  in  their  declaration  claim  an  entire 
thing,  and  afterwards  in  their  replication  narrow  their  claim, 
instead  of  answering  the  whole  of  the  defendant's  second  plea; 
and,  therefore,  that  there  is  a  discontinuance  of  the  action  as  to  that 
part  of  the  claim  which  they  have  so  abandoned.  The  charge  in  the 
declaration  is,  that  after  making  the  indenture,  the  defendant 
would  not  instruct  the  apprentice  ;  and  that  on  the  13th  of  July  he 
wholly  refused  then,  or  at  any  other  time,  to  instruct  him;  and 
that  he  would  not  provide  him  meals,  etc.  It  is  not  one  entire 
claim,  but  divisible,  and  covers  every  part  of  the  time  during  which 
the  master  refused  to  instruct  the  apprentice.  The  defendant's 
second  plea  affects  to  answer  the  claim  of  the  plaintiffs,  as  to  all 
the  time  after  the  10th  of  July,  now  that  is  fully  answered 
by  showing  that  the  *  apprentice  made  a  subsequent  ten-  [*  467] 
der  of  his  services,  whereupon  the  master  ought  to  have 
taken  him  back.  The  fallacy  of  the  argument  consists  in  consider- 
ing this  as  one  entire  claim  for  one  entire  period  of  time,  instead 
of  a  divisible  claim.  I  am  also  of  opinion  that  the  plaintiffs  are 
entitled  to  the  judgment  of  the  Court  upon  the  more  important 
question  in  the  case.  That  question  is,  whether  the  master  is  at 
liberty  to  insist  that  the  indenture  is  no  longer  binding  upon  him, 
because  the  apprentice  has  unwarrantably  refused  to   obey  the 


192  MASTEB  AND  SEBVANT. 

No.  8.  — Winitone  y.  Linn,  1  Bun.  &  Oreai.  467,  466. 

commands  of  his  master.  By  the  indenture,  the  master  covenants 
that  he  will  for  four  years  instruct  and  maintain  the  apprentice. 
Upon  this  record  we  are  not  at  liberty  to  assume  that  there  are 
any  other  covenants  in  the  indenture  than  those  set  out.  Such 
indentures  generally  contain  reciprocal  covenants  by  each  party. 
Those  covenants  are  not  dependent,  but  are  mutual  and  independ- 
ent, entitling  each  party  to  his  remedy  for  a  breach  of  them.  The 
master,  therefore,  is  liable  to  an  action  for  a  breach  of  the  cove- 
nant, to  instruct  and  maintain  the  apprentice  during  the  term 
agreed  upon.  If  the  second  plea  be  good  in  this  case,  there  is  a 
sufficient  answer  to  this  action.  In  that  plea  he  relies  upon  a 
disobedience  of  orders,  and  upon  the  circumstance  that  the 
apprentice  withdrew  himself  from  his  service,  and  declared  his 
intention  never  to  return.  And  if  he  had  continued  to  absent 
himself  to  the  end  of  the  term,  there  can  be  no  doubt  that  that 
would  have  been  an  answer  to  the  action ;  but  it  appears  by  the 
replication  that  the  apprentice  did  return,  and  offered  to  serve  the 
master  during  the  remainder  of  the  term,  and  that  the  latter 

refused  to  receive  him.  I  have  entertained  some  doubt 
[*  468]  whether  the  replication  ought  not  to  *  have  averred  this 

offer  to  have  been  made  within  a  reasonable  time ;  but  I 
am  now  satisfied  that  it  lay  upon  the  defendant  to  have  rejoined, 
that  an  unreasonable  time  had  elapsed  before  the  o£fer  was  made. 
That  being  so,  the  question  arises  upon  these  pleadings,  whether 
disobedience  of  orders,  or  other  acts  of  misconduct  by  the  appren- 
tice, will  entitle  the  master  to  put  an  end  to  the  contract  of  appren- 
ticeship. I  am  of  opinion  that  it  does  not  If  the  parties  had 
intended  that  the  master  should  have  such  a  power,  they  might 
have  provided  for  it  by  the  express  terms  of  the  deed.  Not  having 
done  so,  we  must  conclude  that  it  was  not  intended  that  he  should 
have  any  such  power.  In  the  case  of  parish  apprentices,  the 
Legislature  by  20  G.  II.,  c.  17,  expressly  provided,  that  the  inden- 
tures may  be  discharged  upon  complaint  made  by  the  master  to 
two  justices,  touching  the  misconduct  of  the  apprentice  in  his 
service.  The  Legislature  must  have  thought,  therefore,  that  with- 
out such  an  express  provision,  the  master  of  an  apprentice  would 
not,  at  common  law,  have  the  power  of  putting  an  end  to  the  con- 
tract in  case  of  the  misconduct  of  the  apprentice.  The  cases 
which  have  been  referred  to  in  argument,  arising  out  of  the 
relation  of  master  and  servant,  do  not  apply  to  the  present.     In 


R.  C.  VOL.  XVIL]        sect.  I.  —  CONTRACT  FOR  SERVICE.  193 

No.  8.  — Wimtone  y.  Linn,  1  Bam.  &  GreM.  46^-470. 

the  case  of  apprentices  a  premium  is  usually  given,  in  consideration 
of  which  the  master  expressly  contracts  to  instruct  and  maintain 
the  apprentice  during  a  given  term.  The  premium  is  a  considera- 
tion for  the  instruction  and  maintenance  during  the  entire  term. 
Where  the  ordinary  relation  of  master  and  servant  subsists,  it  is  a 
condition  implied  from  the  very  nature  of  the  contract, 
that  the  master  should  only  maintain  the  *  servant  so  [*469] 
long  as  he  continues  to  do  his  duty  as  servant ;  and  the 
contract  is  to  endure  for  a  reasonable  time  if  no  specific  time  be 
fixed,  and  is  determinable  by  a  reasonable  notice.  For  these 
reasons  I  am  of  opinion  that  the  plaintiff  is  entitled  to  the  judg- 
ment of  the  Court 

HoLROYD,  J. —  I  think  that  the  formal  objections  to  the  replica- 
tion, on  the  ground  of  departure  and  discontinuance,  have  been 
already  fully  answered.  With  respect  to  the  general  question,  I 
am  also  of  opinion  that  the  plaintiff  is  entitled  to  judgment.  The 
cases  which  have  been  referred  to  in  argument,  and  which  have 
arisen  out  of  the  relation  of  master  and  servant,  do  not  bear  upon 
the  present  question.  Under  that  contract,  the  master,  in  consid- 
eration of  the  servant  performing  his  service,  undertakes  to  main- 
tain him  and  pay  him  wages.  The  moment  the  latter  ceases  to  do 
his  duty  properly  as  a  servant,  the  consideration  for  the  mainten- 
ance and  wages  fails.  The  relation  that  subsists  between  a  master 
and  an  apprentice  is  very  different :  under  that  contract  all  the  acts 
are  not  to  be  done  by  the  apprentice,  but  the  master  agrees  to  give 
him  instruction ;  and  the  great  object  of  the  contract  is,  that  a 
young  person  entering  into  life  should  receive  instruction  and  pro- 
tection from  the  master.  The  latter  has  a  greater  control  over 
his  apprentice  than  over  a  mere  servant,  for  he  may  even  correct 
his  apprentice.  The  master,  too,  usually  receives  a  premium,  which 
is  paid  him  as  a  consideration  for  instructing  the  apprentice  dur- 
ing the  term  agreed  upon.  If  the  argument  urged  on  the  part  of 
the  defendant  were  to  prevail,  the  effect  would  be  to  deprive  the 
apprentice  of  that  protection  which  it  was  the  object  of 
the  indenture  *  to  give  him,  and  to  leave  him  at  liberty  to  [*  470] 
go  where  he  pleased.  The  statute  relative  to  parish  appren- 
tices tends  strongly  to  show,  that  at  common  law  the  master  had 
no  power  to  put  an  end  to  the  contract  of  apprenticeship.  It  is 
true  that  this  is  not  an  indenture  within  the  statute,  and  it  must 
therefore  be  construed  as  if  the  statute  had  never  passed ;  but  the 

VOL.  XVII.  — 13 


194  MASTER  AND   SERVANT. 

Ho.  8.  —  Kearney  y.  Whitehaven  Ckdliery  Co.,  1888,  1  Q.  B.  700. 

statute  nevertheless  shows  that  the  understanding  of  the  Legis- 
lature at  that  time  was,  that  under  indentures  in  the  common 
form  the  master  had  no  right  to  put  an  end  to  the  contract  in  con- 
sequence of  the  misconduct  of  the  apprentice. 

Best,  J. —  I  entirely  concur  in  the  opinions  pronounced  by  my 
learned  Brothers.  The  argument  is,  that  if  the  apprentice  be 
guilty  of  a  single  act  of  misconduct,  or  be  absent  from  the  service 
of  the  master  for  two  days,  he  is  to  lose  the  benefit  of  the  instruction 
to  which  he  was  entitled  by  the  indenture,  and  for  which  the  pre- 
mium of  £90  was  paid  ;  and  it  has  been  said  that  the  act  of  going 
away,  accompanied  with  the  declaration  that  he  would  not  return, 
deprived  him  of  the  protection  of  his  master.  But  it  would  be 
most  unjust  if  a  single  act  of  misconduct  were  to  deprive  a  young 
person  of  the  protection  and  instruction  which  he  was  to  receive  in 
virtue  of  the  indentures,  and  for  the  continuance  of  which  for  a 
given  time  a  valuable  consideration  has  been  paid.  The  master 
has  at  common  law  a  complete  remedy,  if  the  apprentice  miscon- 
ducts himself,  by  an  action  for  a  breach  of  the  covenants.    The 

provisions  contained  in  the  statute  relative  to  parish  ap- 
[*471]  prentices  show  that  at  common  law  the  master  could  *not 

determine  the  contract,  if  the  apprentice  misconducted  him- 
self. I  am,  therefore,  of  opinion  that  the  plaintiffs  are  entitled  to 
recover.  Judgment  for  the  plaintiffs. 

Kearney  v.  Whitehaven  Colliery  Company. 

1893, 1  Q.  B.  700-715  (s.  c.  62  L.  J.  M.  C.  129;  68  L.  T.  690;  41  W.  K.  594). 

[  700]  Mine.  —  Wages.  —  Payment  by  Weight  of  Mineral  —  Illegal  Stiptdation, 
Effect  ofy  where  Good  Consideration  for  Contract  —  Coed  Mines  Begu- 
latum  Act,  1887  (50  dt  51  Vict,  c.  58),  s.  12. 

By  sect.  12  of  the  Coal  Mines  Regulation  Act,  1887,  where  the  amount  of 
wages  paid  to  any  of  the  persons  employed  in  a  mine  depends  on  the  amount  of 
mineral  gotten  by  them,  those  persons  shall  be  paid  according  to  the  actual 
weight  gotten  hy  them  of  the  mineral  contracted  to  be  gotten,  —  provided  that 
nothing  in  this  section  shall  preclude  the  owner  of  the  mine  from  agreeing  with 
the  persons  employed  that  deductions  shall  he  made  in  respect  of  stones  or  sub> 
stances  other  than  the  mineral  contracted  to  be  gotten,  such  deductions  being 
determined  in  such  special  mode  as  may  be  agreed  upon  between  the  owner 
and  the  persons  employed. 

The  appellant  was  employed  by  the  respondents  at  their  colliery  upon  the 
terms  that  he  should  be  paid  wages  according  to  the  weight  of  coal  gotten  by  him ; 
that  he  should  not  leave  his  employment  without  giving  fourteen  days'  notice } 


B.  C.  VOL.  XVII.]        SECT.  I. —  CONTRACT  FOR   SERVICE.  196 

Ho.  8.  —  Kearofiy  y.  Whitehaven  GoUiery  Co.,  1898,  1  Q.  B.  700,  701. 

and  that  dedactions  should  be  made  in  respect  of  dirt  sent  up  to  the  surface  with 
the  coal ;  and  the  following  special  mode  of  determining  those  deductions  was 
agreed  upon  between  the  respondents  and  the  persons  employed  by  them: 
About  one  tub  in  twenty  sent  up  to  the  surface  was  selected  at  random  for 
testing.  The  dirt  in  that  tub  was  separated  from  the  coal  and  weighed,  and  if 
the  tub  contained  more  than  a  certain  weight  of  dirt,  the  man  who  sent  it  up 
was  not  paid  anything  in  respect  of  the  coal  therein.  The  men  sending  up  the 
other  nineteen  tubs  were  paid  on  the  total  weight  of  the  contents  of  each  tub 
as  though  it  contained  coal  only. 

Held,  that  the  proviso  in  sect.  12  was  controlled  by  the  first  part  of  that  sec- 
tion, and  did  not  authorise  any  agreement  by  which  a  person  employed  was  not 
to  be  paid  on  the  weight  of  the  coal  in  a  particular  tub ;  that  the  agreement 
with  respect  to  the  special  mode  of  making  deductions  for  dirt  was  there- 
fore illegal,  *but  that  the  illegality  in  that  respect  did  not  vitiate  the  [*701] 
whole  contract  of  employment  so  as  to  justify  the  appellant  in  leaving 
without  giving  fourteen  days'  notice. 

Appeal  from  a  judgment  of  the  Queen's  Bench  Division  upon  a 
case  stated  by  justices  of  the  peace  for  the  county  of  Cumberland, 
under  the  Summary  Jurisdiction  Act,  1879. 

The 'respondents,  a  colliery  company,  took  out  a  summons  under 
the  Employers  and  Workmen  Act,  1875  (38  &  39  Vict.,  c.  90), 
against  the  appellant,  a  collier  in  they*  employment,  claiming  78.  &d. 
damages  for  breach  of  contract  by  the  defendant  in  neglecting  to 
proceed  to  or  perform  his  duties  as  a  collier  in  William  Pit,  on 
March  3  and  4,  1892.  The  material  facts  appearing  in  the  case 
originally  stated  by  the  justices,  and  in  a  supplemental  case  stated 
by  them  on  hearing  further  evidence,  after  the  original  case  had 
been  remitted  to  them  by  the  Court  of  Appeal  for  that  purpose, 
were  as  follows  :  — 

Prior  to  March  3, 1892,  the  appellant  entered  into  a  contract  of 
service  with  the  respondents,  and  signed  a  document  of  which  the 
material  parts  were  as  follows : "  I,  the  undersigned,  in  consideration 
of  being  employed  at  this  colUery,  do  hereby  agree  to  give  to,  and 
to  receive  from,  the  Whitehaven  Colliery  Company  fourteen  days' 
notice  to  terminate  such  employment ;  and,  in  the  event  of  my 
leaving  without  giving  such  notice,  to  render  myself  liable  to  be 
proceeded  against  according  to  law.  And  I  also  further  agree  that 
breach  of  rules  on  my  part  shall  render  me  liable  to  instant  dis- 
missaL  .  .  .  And  I  also  further  agree  to  the  company  making  the 
undermentioned  deduction  from  my  wages,  namely  .  .  .  moneys 
advanced  by  the  company  on  my  behalf  for  any  of  the  following 


196  MASTER  AND   SERVANT. 

Ho.  3.  —  Kearney  y.  Whitehayen  Ckdliary  Ck>.,  1893, 1  Q.  B.  701,  708. 

purposes,  namely,  contributions  to  friendly  society  or  club,  or  for 
the  education  of  my  children,  house-rent,  and  fines  for  dirt." 

The  wages  paid  to  the  persons  employed  in  the  mine  were  paid 
according  to  the  weight  of  coal  gotten  by  them ;  the  dirt  referred 
to  the  contract  was  dirt — not  being  coal,  nor  of  the  nature  or 
substance  of  coal  —  sent  up  from  the  mine  with  coal.  For  a  long 
time  prior  to  December  2,  1891,  a  system  of  fines  and  forfeit- 
ures had  been  in  force  at  the  pit  in  respect  of  dirt  sent  up  with 
the  coal.  The  practice  was  that  about  one  tub  in  twenty 
[*  702]  *  was  tested  for  dirt  by  testers  employed  by  the  mine-owners, 
the  check-weigher  employed  by  the  men  having  the  oppor- 
tunity of  checking  the  testing  if  he  desired  to  do  so.  The  dirt  was 
separated  from  the  coal  by  riddling,  and  weighed.  On  December  2, 
1891,  a  revised  scale  of  fines  and  forfeitures  in  respect  of  dirt 
was  arranged  between  the  employers  and  the  men  employed  in  the 
pit.  By  that  arrangement  there  was  no  fine  or  forfeiture  if,  after 
the  coal  was  riddled,  the  amount  of  dirt  in  the  tub  (which  would 
contain  about  15  cwt.)  did  not  exceed  25  lbs.  If  the  amount  of 
dirt  after  riddling  exceeded  25  lbs.,  but  did  not  exceed  35  lbs.,  one- 
half  of  the  tub  was  to  be  forfeited,  the  collier  who  sent  the  tub  up 
receiving  payment  only  in  respect  of  half  the  weight  of  the  total 
contents  of  the  tub.  If  the  amount  of  dirt  after  riddling  exceeded 
351bs.,  then  the  whole  tub  was  forfeited,  the  collier  who  sent  it  up 
receiving  no  payment  in  respect  of  it.  The  tubs  were  selected  for 
testing  at  random,  and  the  name  of  the  collier  who  sent  up  the 
tub  was  not  ascertained  until  the  tub  had  been  emptied,  when  his 
tally  would  be  found  at  the  bottom  of  it. 

On  March  3  and  4,  1892,  the  appellant  did  not  proceed  to  his 
work  at  the  pit.  He  had  not  previously  given  the  fourteen  days' 
notice  of  his  intention  to  leave  the  respondents*  employment 
required  by  the  contract.  At  the  hearing  before  the  justices  the 
appellant's  solicitor  contended  that  the  system  of  making  deduc- 
tions in  respect  of  fines  for  dirt  was  illegal,  and  that  the  appel- 
lant therefore  was  not  bound  by  the  contract  of  employment,  and 
was  justified  in  refusing  to  work  under  it.  The  justices  held  the 
appellant  liable  in  damages ;  and  being  satisfied  upon  the  evidence 
given  for  the  respondents  that  by  reason  of  the  appellant's  not 
proceeding  to  work  on  the  days  named  they  had  suffered  the 
damage  claimed,  ordered  him  to  pay  to  them  the  sum  of  seven  shil- 
lings and  sixpence. 


R.  C.  VOL.  XVII.]        SECT.  I.  —CONTRACT  FOR  SERVICE.  197 

Ko.  8.  —  Xeainey  v.  Whitehaven  Ckdliery  Ck>.,  1898,  1  Q.  B.  702,  708. 

The  questions  for  the  opinion  of  the  Court  were :  (1)  whether 
the  justices  were  right  in  holding  that  the  appellant  was  not  justi- 
fied in  leaving  his  work  without  notice ;  and  (2)  in  the  event  of 
the  appellant  not  being  justified  in  leaving  his  work  without 
notice,  were  the  justices  right  in  holding  that  the  appellant  was 
liable  in  damages  to  the  respondents  ?  If  the  Court  should  be 
of  opinion  that  the  justices  were  wrong  in  either  of 
*  those  points,  then  the  order  to  be  quashed  and  judgment  [*  703] 
entered  for  the  appellant.  If  the  Court  should  be  of  opinion 
that  the  justices  were  right,  then  the  order  to  stand. 

The  Divisional  Court  (Grantham  and  Charles,  JJ.)  gave 
judgment  for  the  respondents.  Grantham,  J.,  was  of  opinion  that 
the  special  mode  of  determining  the  deductions  to  be  made  in 
respect  of  fines  for  dirt,  which  had  been  agreed  upon  between  the 
respondents  and  their  workmen,  was  not  in  contravention  of  the 
Coal  Mines  Regulation  Act,  1887  (50  &  51  Vict.,  c.  58),  s.  12,^  and 
that,  under  the  proviso  in  that  section,  the  mine-owner  and  the 
persons  employed  by  him  were  entitled  to  agree  upon  a  deduction 
from  the  latters'  wages  in  respect  of  stones  and  substances  other 
than  minerals  sent  up  with  the  coal,  even  although  the  special 
mode  of  determining  the  deduction  involved  that  the  person 
employed  was  not  paid  anything  in  respect  of  the  weight  of 
the  coal  in  the  particular  tub  selected  for  testing.  The  learned 
Judge  was  also  of  opinion  that  the  decision  of  the  House  of  Lords 
in  Netherseal  Colliery  Co,  v.  Bourne,  20  Q.  B.  D.  606,  14  App.  Cas. 

1  Sect.  12:    "Where  the  amoant  of  or  his  drawer,  or  by  the  person  immedi- 

wages  paid  to  any  of  the  persons  employed  ately  employed  by  him ;  such  deductions 

in  a  mine  depends  on  the  amoant  of  mineral  being  determined  in  such  special  mode  as 

gotten  by  them,  those  persons  shall  be  paid  may  be  agreed  upon  between  the  owner, 

according  to  tlie  actual  weight  gotten  by  agent,  or  manager  of  the  mine  on  the  one 

them  of  the  mineral  contracted  to  be  got-  hand,  and  the  persons  employed  in  the  mine 

ten,  and  the  mineral  gotten  by  them  shall  on  the  other,  or  by  some  person  appointed 

be  truly  weighed  at  a  place  as  near  to  the  in  that  behalf  by  the  owner,  agent,  or 

pit  month  as  is  reasonably  practicable.  manager,  or    (if   any  check-weigher   is 

"  Provided  that  nothing  in  this  section  stationed  for  this  purpose  as  hereinafter 

shall  preclude  the  owner,  agent,  or  manager  mentioned)    by    such    person    and   such 

of  the  mine  from  agreeing  with  the  persons  check-weigher,  or,  in  case  of  difference, 

employed  in  the  mine  that  deductions  shall  by  a  third  person  to  be  mutually  agreed  on 

be  made  in  respect  of  stones  or  substances  by  the  owner,  agent,  or  manager  of  the 

other  than  the  mineral  contracted  to  be  mine  on  the  one  hand,  and  the  persons 

gotten,  which  shall  be  sent  out  of  the  mine  employed  in  the  mine  on  the  other,  or 

with  the  mineral  contracted  to  be  gotten,  in  default  of  agreement  appointed  by  a 

or  in  respect  of  any  tubs,  baskets,  or  hutches  chairman  of  a  Court  of  Quarter  Sessions 

being  improperly  fiUed  in  those  cases  where  within  the  jurisdiction  of  which  any  shaft 

they  are  filled  by  the  getter  of  the  mineral  of  the  mine  is  situate." 


198  MASTER  AND   SERVANT. 


Ho.  3.  —  Kearney  y.  Whitehaven  CdlieTy  Ck>.,  1898,  1  Q.  B.  703>705. 

228  (in  which  the  question  turned  upon  a  deduction  in 
[*  704]  respect  of  coal,  and  *  not  in  respect  of  stones  or  substances 
other  than  the  mineral  contracted  to  be  gotten),  was  not 
contrary  to  his  view  of  the  construction  of  the  section. 

Charles,  J.,  was  of  opinion  that  the  system  of  fines  and  forfeit- 
ures adopted  at  the  respondent's  colliery  was  in  contravention  of 
the  provisions  of  sect.  12  ;  because,  by  the  first  part  of  the  section, 
the  person  employed  ,was  to  be  paid  according  to  the  actual  weight 
gotten  by  him  of  the  rnineral  contracted  to  be  gotten ;  and  the 
decision  in  Netherseal  Colliery  Co,  v.  Bourne  indicated  that  the 
only  deductions  allowable  were  deductions  in  respect  of  stones  and 
substances  other  than  the  mineral  contracted  to  be  gotten.  The 
learned  Judge  thought  it  was  impossible  to  hold  that  a  system 
by  which,  in  certain  events,  the  person  employed  was  no  longer 
to  be  paid  according  to  the  actual  weight  gotten  by  him  of  the 
mineral  contracted  to  be  gotten,  was  justified  by  the  proviso  in 
sect.  12. 

Both  the  learned  Judges,  however,  held  that,  whether  or  not  that 
part  of  the  contract  of  employment  was  illegal,  the  illegality  did 
not  render  the  whole  contract  void  so  as  to  disentitle  the  respond- 
ents to  rely  upon  the  stipulation  that  the  appellant  should  not 
leave  the  employment  without  giving  fourteen  days'  notice. 
The  appellant  below  appealed  from  this  decision. 
Willis,  Q.  C,  and  Atherley  Jones,  for  the  appellant. — The  special 
mode  of  determining  the  deductions  for  fines,  which  has  been 
agreed  upon  between  the  colliery  company  and  those  whom  they 
employ,  is  in  contravention  of  sect.  12  of  the  Mines  Regulation 
Act,  1887,  and,  therefore,  illegal.  The  eflfect  of  sect.  12  is  to  pro- 
hibit any  contract  by  which  the  person  employed  is  not  to  be  paid 
according  to  the  actual  weight  gotten  by  him  of  the  mineral  con- 
tracted to  be  gotten.  He  must  be  paid  by  weight,  and  without  any 
deductions  from  the  weight  of  the  mineral  which  he  sends  up. 
The  proviso  does  not  override  the  first  part  of  the  section.  It 
only  provides  for  the  mode  in  which  deductions  from  the  weight 
sent  up  to  the  pit's  mouth  (including  both  the  mineral  con- 
tracted to  be  gotten  and  other  substances)  should  be 
[*  705]  *  made ;  but  the  special  mode  can  only  be  by  deduction 
from  weight,  not  from  payment.  That  is  the  construction 
put  by  the  House  of  Lords  in  Netherseal  Colliery  Co,  v.  Bourne^ 
upon  sect.  17  of  the  Coal  Mines  Regulation  Act,  1872   (35  &  36 


R.  C.  VOL.  XVII.]        SECT.  I.  —  CONTRACT  FOR  SERVICE.  199 

Ho.  8.  —  Keezney  v.  Whitehayen  GdUiery  Co.,  1898, 1  Q.  B.  706,  706. 

Vict.,  c.  76),  which  is  substantially  the  same  in  terms  as  sect. 
12  of  the  Act  of  1887.  In  the  present  case,  by  the  agreed  special 
mode  of  determining  the  deductions  to  be  made  in  respect  of 
fines  for  dirt,  the  miner,  in  the  event  of  the  tub  selected  for  test- 
ing containing  more  than  a  certain  proportion  of  dirt,  is  not  to  be 
paid  anything  on  the  actual  weight  of  the  coal  in  that  tub.  The 
deduction  is,  therefore,  illegal. 

Next,  if  that  be  so,  it  is  submitted  that  the  whole  contract  of 
employment  is  vitiated,  because  the  services  rendered  by  the  person 
employed  are  paid  for  in  a  mode  prohibited  by  the  statute,  which 
requires  that  the  contract  shall  be  of  a  particular  character.  If 
the  term  of  the  contract  with  respect  to  those  deductions  be  illegal, 
it  affects,  or  cuts  through,  the  consideration,  namely,  payment, 
passing  from  the  mine-owner  to  the  person  employed ;  and  if  the 
consideration  be  tainted  with  illegality,  the  whole  contract  is  bad. 
The  mine-owners,  therefore,  are  not  entitled  to  rely  on  the  term  in 
the  contract  with  respect  to  notice,  and  the  appellant  was  entitled 
to  leave  his  employment  without  giving  the  fourteen  days'  notice 
stipulated  by  the  contract. 

Finlay,  Q.  C,  and  Mattinson,  for  the  respondents.  —  The  special 
agreement  made  here  is  not  illegal.  It  is  only  a  mode  of  ascer- 
taining the  average  amount  of  dirt  sent  up  in  the  tubs.  Assuming 
that  sect.  12  of  the  Coal  Mines  Regulation  Act,  1887,  means  that  in 
any  event  the  person  employed  shall  be  paid  for  the  weight  of  the 
coal  actually  gotten  by  him,  still  in  fact  he  is  so  paid  under  the 
special  agreement,  because,  although  the  man  whose  tub  is  tested 
out  of  the  twenty  tubs  sent  up  receives  no  payment  at  all  on  the 
weight  of  the  coal  in  that  tub  if  it  contains  more  than  35  lbs.  of  dirt, 
he  is  paid  on  the  weight,  both  of  coal  and  dirt,  in  so  many  of  the 
other  nineteen  tubs  as  he  has  sent  up.  As  the  result  works  out, 
he  is  paid,  or  more  than  paid,  for  the  weight  of  coal  actually  gotten 
by  him.  The  contention  made  for  the  appellant  would 
necessitate  the  expensive  *  and  troublesome  process  of  [*  706] 
weighing  for  dirt  every  tub  that  came  to  the  pit's  mouth 
—  a  process  which  it  would  be  practically  impossible  for  the  mine- 
owner  to  carry  out.  It  is  submitted,  further,  that  the  proviso  to 
sect.  12  intended  to  allow  any  special  bargain  with  respect  to  de- 
ductions to  be  made  between  the  mine-owner  and  the  persons 
employed.  It  provides  that  deductions  may  be  made  for  tubs 
improperly  filled,  showing  that  some  deduction  from  the  coal  sent 


200  MASTER  AND   SEBVANT. 


Ho.  8.  —  Kearney  v.  Whitehaven  Ckdliery  Co.,  1888,  1  Q.  B.  706,  707. 

up  was  contemplated.  The  decision  in  Netherseal  Colliery  Co.  v. 
Bourne  was  in  respect  of  a  deduction  from  the  weight  of  coal  in  the 
basket.  The  House  of  Lords  had  not  to  consider  deductions  in  re- 
spect of  substances  other  than  the  mineral  contracted  to  be  gotten  ; 
it  was,  therefore,  only  necessary  for  them  to  construe  the  first  part 
of  the  section.  Next,  if  the  special  agreement  with  respect  to  de- 
ductions be  illegal,  it  does  not  vitiate  in  toto  the  contract  of  employ- 
ment. The  test  is,  if  the  acts  to  be  done  by  the  person  employed  as 
consideration  for  the  wages  paid  him  are  illegal  in  whole  or  in  part, 
then  the  whole  contract  is  illegal.  If,  on  the  other  hand,  the  con- 
sideration moving  from  the  master  —  i.  e.,  the  employment  of  the 
person  employed  and  payment  of  wages  —  is  illegal  in  whole  or  in 
part,  then  the  whole  contract  is  illegal.  But  this  stipulation  as  to 
deductions  in  respect  of  fines  for  dirt  is  no  part  of  the  consideration 
for  the  service.  It  is  a  stipulation  in  favour  of  the  master.  It  is 
one  of  the  promises  in  the  contract  which  is  bad  in  itself,  though 
the  consideration  upon  which  it  is  founded  is  good ;  but  it  does 
not  touch  the  other  promises  in  the  contract  which  are  good  in 
themselves  and  supported  by  the  good  consideration.  The  mine- 
owners,  therefore,  were  entitled  to  rely  on  the  appellant's  promise 
not  to  leave  his  employment  without  giving  fourteen  days*  notice. 
Atherley  Jones  replied. 

Lord  EsHER,  M.  R.  —  I  am  of  opinion  that  this  appeal  should  be 
dismissed.  I  think  that  the  judgment  of  Charles,  J.,  was  right, 
and  I  cannot  agree  with  the  judgment  of  Grantham,  J.,  with 
respect  to  the  legality  of  the  deductions.  I  think  that  the  de- 
duction in  respect  of  fines  for  dirt  was  an  illegal  deduction, 
[*707]  but  *that  the  illegality  of  that  particular  stipulation, 
there  being  no  illegality  in  the  consideration  for  the  con- 
tract, does  not  aflfect  the  validity  of  the  promise  made  by  the  miner 
not  to  leave  his  employment  without  giving  fourteen  days'  notice. 
The  point  as  to  the  illegality  of  the  stipulation  that  the  mine- 
owners  may  make  deductions  in  respect  of  fines  for  dirt  depends 
upon  the  construction  of  sect.  12  of  the  Coal  Mines  Eegulation  Act, 
1887.  I  think  that  that  section  has  really  been  construed  by  the 
House  of  Lords  in  Netherseal  Colliery  Co.  v.  Bourne,  20  Q.  B.  D. 
606,  14  App.  Cas.  228.  That  decision  was  founded  upon  particular 
propositions  with  regard  to  the  Act  of  Parliament,  and  we  cannot, 
on  the  suggestion  that  it  was  not  necessary  in  that  case  to  deter- 
mine the  point  now  before  us,  disregard   the  interpretation   the 


K.  C.  VOL.  XVII.]        SECT.  I.  —  CONTRACT  FOR  SERVICE.  201 

Ko.  8.  —  Xdaxney  v.  Whitehaven  Colliery  Co.,  1893, 1  Q.  B.  707,  708. 

House  of  Lords  gave  to  that  Act.  I  take  the  judgment  of  the 
House  of  Lords  to  be  founded  upon  certain  propositions  enunciated 
and  laid  down  in  terms  by  several  —  if  not  all  —  of  the  noble 
Lords.  Those  propositions  are  most  clearly  stated  by  Lord 
Halsbury.  They  are,  in  effect,  that  you  must  take  the  whole  of 
the  section  which  was  then  under  consideration,  and  consider  the 
first  part  of  it  with  the  proviso  in  order  to  determine  what  is  the 
true  construction  of  the  first  part.  If  you  put  one  construction 
upon  that  proviso  you  give  hardly  any  effect  to  it ;  if  you  put  the 
other  construction  you  make  the  first  part  and  the  proviso  work 
harmoniously  together.  Lord  Halsbury  says  that  the  phraseology 
of  the  first  part  of  the  section  is  general,  but  that  it  may  be  con- 
strued into  a  concrete  form  by  having  regard  to  the  practical  usage 
of  miners  when  the  Act  was  passed.  He  applies  that  well-known 
rule  of  interpretation.  He  says  that  the  words  "  where  the  amount 
of  wages  paid  to  any  of  the  persons  employed  .  .  .  depends  on  the 
amount  of  mineral  gotten  by  them,"  might  mean,  "where  the 
amount  of  wages  paid  depends  upon  the  amount  of  actual  mineral 
gotten  by  them ; "  but  looking  at  the  practical  usage  of  miners  and 
the  ordinary  course  of  business  in  mining,  the  words  may  have 
another  meaning.  The  well-known  usage  and  course  of  business 
is  that  the  miner  gets  an  ascertained  quantity  of  stuff,  which  is 
put  into  a  tub  and  sent  up  to  the  surface.  When  the  tub  comes  to 
the  mouth  of  the  pit  its  contents  are,  according  to  the 
practical  *  usage  of  miners  and  the  ordinary  course  of  [*  708] 
business  in  mining,  taken  to  be  the  amount  of  mineral 
gotten  by  the  miner,  though  in  the  strict  interpretation  the  tub 
contains  the  amount  of  mineral  gotten  by  the  miner  and  something 
else.  If  the  first  part  of  the  section  stood  alone,  we  might  be 
obliged  to  consider  whether  we  could  so  deal  with  it;  but  the 
proviso  makes  it  clear  that  we  ought  to  apply  the  rule  of  con- 
struction I  have  stated,  and  then  the  *'  amount  of  mineral  gotten 
by  them "  means  the  amount  of  mineral  which  a  man,  in  the 
ordinary  course  of  the  business  of  mining,  puts  into  the  tub  and 
something  else.  It  means  everything  that  is  in  the  tub,  whether 
or  not  there  is  matter  in  it  which  is  not  mineral.  If  that  be  so, 
the  mine-owner  would  be  paying  on  the  weight  of  mineral  which 
had  not  been  gotten  unless  the  statute  provided  some  means  of 
aiding  him.  We  know  that  it  would  be  practically  impossible  for 
him  to  have  every  tub  weighed  for  dirt.     The  Act,  however,  by 


202  MASTER  AND   SERVANT. 


Ko.  8.  —  Kearney  v.  Whitehaven  Colliery  Co.,  1898,  1  Q.  B.  708,  709. 

the  proviso  arranges  a  method  of  aiding  him,  and  says  that  de- 
duction shall  be  made  in  respect  of  stones  or  substances  other 
than  the  mineral  contracted  to  be  gotten.  Now,  what  are  you  to 
deduct  from  ?  From  what  is  in  the  tub  —  not  from  the  actual  min- 
eral in  the  tub,  but  from  all  that  is  in  the  tub.  But  the  deductions 
must  be  made  in  a  certain  way.  The  proviso  says  that  an  agree- 
ment may  be  made,  with  respect  to  deductions,  between  the  mine- 
owner  and  the  persons  he  employs ;  but  he  and  they  must  at  the 
same  time  agree  that  the  deductions  shall  be  made  in  the  particular 
manner  specified  in  the  Act.  The  things  in  respect  of  which  the 
deductions  are  to  be  made  are  stones  and  substances  other  than  the 
mineral  contracted  to  be  gotten,  and  the  deduction  must  be  from 
the  weight  in  the  tub,  not  from  the  men's  wages.  It  is  true  that 
the  amount  of  the  wages  depends  upon  the  weight  of  the  mineral 
contracted  to  be  gotten ;  but  I  think  that  the  wording  of  the  first 
part  of  the  section  and  of  the  proviso  bring  one  to  the  conclusion 
that  the  deduction  must  be  from  weight,  and  must  be  a  deduction 
in  respect  to  things  other  than  the  actual  minerals.  As  to  the 
other  matter  of  deduction,  namely,  in  respect  of  tubs  improperly 
filled,  I  think  the  meaning  is  that  you  are  to  take  the  weight  of 
the  tub  and  to  deduct  that  which  has  got  into  it  by  im- 
[*  709]  proper  filling.  The  provision  is  *  pointed  at  the  case  re- 
ferred to  by  Lord  Macnaghten  in  the  Netherseal  case,  14 
App.  Cas.  228,  at  p.  246,  where  an  undue  proportion  of  slack  or 
dust  has  been  sent  up  in  the  tub.  In  that  case  a  deduction  maybe 
made  in  respect  of  improper  filling,  although  the  slack  or  dust  is 
coal.  The  deduction  from  the  weight  would  be  made  by  taking 
out  the  slack  or  dust  improperly  put  into  the  tub.  The  judgments 
in  the  House  of  Lords  establish  that  the  deduction  can  only  be 
by  weight ;  that  it  must  be  a  deduction  from  the  weight  of  the  tub ; 
that  you  can  only  make  the  deduction  in  respect  to  substances 
other  than  coal,  and  that  you  can  only  make  it  in  the  mode  speci- 
fied by  the  Act.  Lord  Halsbury  says  (at  p.  234) :  "  The  object 
and  intention  of  the  17th  section,  upon  which  this  question  turns, 
is  obviously,  in  cases  where  the  wages  depend  upon  the  weight  of 
the  mineral  won,  to  create  a  statutable  duty  to  weigh,  and  to  pay 
according  to  the  weight  so  ascertained.  It  is  obvious  further  that 
the  draftsman  or  some  person  familiar  with  mining  feared  whether 
in  creating  that  duty  and  imposing  the  obligation  to  pay  according 
to  the  weight  so  ascertained  —  knowing  that  such  weight  would 


K.  C.  VOL.  XVIL]        sect.  I.  —  CONTRACT  FOR  SERVICE.  203 

Vo  8.  —  XeaziMy  v.  WMtehaveiL  CdUiary  Co.,  1898,  1  Q.  B.  709,  710. 

have  to  be  ascertained  according  to  the  practical  usage  of  miners  — 
feared,  I  say,  that  if  the  earlier  part  of  the  section  remained  un- 
qualified the  mine-owner  would  be  obliged  to  pay  by  weight,  when 
so  ascertained,  whatever  might  be  contained  in  the  tubs,  baskets, 
or  hutches,  and  accordingly  the  latter  part  of  the  section  was  intro- 
duced to  save  the  right  of  contracting  that  stone  or  materials  other 
than  the  mineral  contracted  to  be  gotten  should  be  deducted  from 
the  weight ;  but  this  reserved  right  of  contract  was  only  capable  of 
being  put  in  force  by  the  mode  pointed  out  in  the  section."  Lord 
Halsbury  therefore  thought  that  if  the  first  part  of  the  section  stood 
alone  the  mine-owner  would  have  to  pay  on  all  that  came  up  in 
the  tub,  basket,  or  hutch,  but  that  the  proviso  was  made  to  meet 
that  state  of  things,  and  enable  deductions  to  be  made  in  respect 
of  materials  other  than  coal.  Lord  Bramwbll  says :  "  The  eflfect 
of  the  enactment  then  is  that  the  men  must  be  paid  by  weight, 
that  that  weight  is  to  be  the  weight  of  all  they  send  up,  but  that 
from  it  may  be  deducted  the  weight  of  certain  matters 
provided  that  weight  is  ascertained  in  a  certain  way."  *  The  [*  710] 
"  certain  matters  "  are  the  matters  mentioned  in  the  proviso, 
namely,  stones  or  materials  other  than  the  mineral  contracted  to 
begotten.  The  same  thing  is  said  in  eflfect  by  Lord  Hersohell  and 
the  other  members  of  the  House  of  Lords  present.  Lord  Maonagh- 
TEN  says:  "  One  thing  is  clear,  that  no  deduction  is  permissible  ex- 
cept what  the  Act  specifies  and  allows." 

The  judgment  of  Grantham,  J.,  in  the  Court  below,  seems  to 
proceed  on  the  assumption  that  the  deductions  contemplated  by 
the  proviso  can  be  properly  made  from  wages.  Having  regard 
to  the  judgments  in  Netherseal  Colliery  Co.  v.  Bourne,  20  Q.  B.  D. 
606,  14  App.  Cas.  228,  I  am  of  opinion  that  his  view  is  wrong, 
and  that  Charles,  J.,  was  right  in  saying  that  the  person  employed 
in  the  mine  is  to  be  paid  by  the  weight  of  the  mineral  gotten ; 
that  the* deduction  must  be  from  weight;  that  it  must  be  a  deduc- 
tion from  the  total  weight  of  the  contents  of  the  tub,  and  that  it 
can  only  be  made  in  the  special  mode  authorised  by  the  section. 
When  you  deduct  from  weight  what  you  are  allowed  to  deduct  by 
the  Act,  the  person  employed  is  only  to  be  paid  upon  the  weight 
of  coal  in  the  tub  in  respect  of  which  the  deduction  has  been  made. 
In  the  absence  of  an  agreement  as  to  deductions  between  the  mine- 
owner  and  the  persons  employed  by  him,  he  must  pay  upon  the 
whole  tab.    If  he  and  they  do  agree,  the  deductions  must  be  made 


204  MASTER  AND  SERVANT. 

Ko.  8.  —  Xeamoy  y.  WMtehayen  Colliery  Co.,  1898,  1  Q.  B.  710,  711. 

in  the  way  pointed  out  by  the  proviso.  In  the  present  case  they 
have  gone  further  than  that.  In  a  particular  event,  after  deduct- 
ing the  extraneous  matter  in  the  tub,  though  an  amount  of  coal 
is  left  in  the  tub,  the  man  who  sends  up  the  tub  is  not  to  be  paid 
wages  at  all  in  respect  of  the  coal  so  brought  up.  I  am  of  opinion 
that  such  a  contract  is  illegal  and  in  contravention  of  the  terms 
of  the  Act  of  Parliament.  Whether  the  men  are  wise  in  having 
brought  this  matter  forward,  I  cannot  say.  The  arrangement  has 
been  acted  upon  for  years  with  their  assent,  and  the  consequences 
of  raising  the  point  may  be  what  they  do  not  expect. 

Then  comes  the  question.  Does  the  illegality,  in  this  respect,  of 
part  of  the  contract  make  the  whole  contract  illegal  ?  Does  it 
make  illegal  the  stipulation  by  the  person  employed  that  he  shall 

not  leave  his  employment  without  giving  fourteen  days' 
[*711]  *  notice?    I  take  it  that  the  rule  is  properly  enunciated 

and  stated  in  Maxwell  on  Statutes,  2nd  ed.,  p.  491.  If 
the  consideration,  or  any  part  of  it,  is  illegal,  then  every  promise 
contained  in  the  agreement  becomes  illegal  also,  because  in  such 
a  case  every  part  of  the  consideration  is  consideration  for  the 
promise.  But  suppose  there  is  nothing  illegal  in  the  considera- 
tion, then  upon  that  valid  consideration  may  be  several  promises 
or  liabilities.  If  any  one  of  those  be  in  itself  illegal,  then  it 
cannot  stand,  not  because  the  consideration  becomes  illegal,  but 
because  the  promise  itself  is  illegal.  It  is  a  bad  promise  which 
cannot  be  supported  by  the  consideration.  But  the  other  prom- 
ises which  are  good  and  legal  in  themselves  remain,  and  can  be 
supported  by  the  good  consideration.  That  rule  of  law  has  long 
been  acted  upon,  and  it  was  applied  by  the  House  of  Lords  in  the 
Netherseal  case.  Now  the  contract  here  is  a  contract  of  employ- 
ment. The  consideration  on  the  one  side  is,  "  If  you  will  enter 
into  my  employment  I  will  make  you  one,  two,  or  more  several 
promises."  The  consideration  on  the  other  side  is,  "  If  you  will 
take  me  into  your  employment,  I  will  make  you  one,  two,  or  more 
several  promises."  Therefore  on  both  sides  there  is  consideration 
which  stands  without  any  blemish  whatsoever.  On  the  one  side 
there  is  the  consideration,  "  I  will  take  you  into  my  employment;" 
on  the  other,  "  I  will  enter  into  your  employment."  There  is  a 
stipulation  in  the  contract  which  is  illegal  in  itself,  and  cannot 
therefore  be  supported  by  the  good  consideration ;  but  there  are 
other  promises  not  illegal  in  themselves  which  can  be  supported 


R.  C.  VOL.  XVII.]        SECT.  I.  —  CONTRACT  FOR  SERVICE.  205 

Vo.  8.  —  XeaziMy  v.  Whitehayen  CollieTy  Co.,  1888, 1  Q.  B.  711,  712. 

by  the  consideration  which  is  perfectly  good.  The  promise  by  the 
person  employed  to  give  fourteen  days'  notice  before  leaving  the 
employment  is  one  which  can  be  supported  by  the  consideration, 
and  one  on  which,  in  my  opinion,  the  mine-owners  are  entitled  to 
rely.  The  stipulation  with  respect  to  deductions  is  illegal  in 
itself,  and  cannot  stand,  but  the  stipulation  as  to  notice  is  legal 
and  supported  by  a  good  consideration. 

I  am  of  opinion,  therefore,  that  the  decision  of  the  magistrates 
was  right,  and  that  the  judgment  of  the  Court  below  should  be 
affirmed,  and  this  appeal  dismissed. 

*  Lopes,  L  J.  — I  am  of  the  same  opinion.  I  think  that  [*  712] 
the  judgment  of  Charles,  J.,  was  right  I  think  that  the 
deductions  made  by  the  mine-owners  in  respect  of  fines  for  dirt 
are  deductions  not  authorised  by  the  Act,  and  illegal ;  but  that  the 
contract  of  employment  is  only  illegal  in  part,  so  that  the  provision 
in  it  that  the  person  employed  shall  give  fourteen  days'  notice 
before  leaving  the  employment  is  valid.  The  question  turns  on 
the  construction  of  sect  12  of  the  Coal  Mines  Begulation  Act, 
1887.  It  may  be  truly  said  that  the  language  of  that  section  is 
not  wholly  clear  and  unambiguous.  In  the  first  part  of  the  section 
[the  Lord  Justice  read  it]  it  is,  in  my  opinion,  obvious  from  the 
expressions  used,  —  namely,  "  weight "  and  "  truly  weigh,'*  —  that 
every  word  in  the  section  is  meant  to  refer  to  payment  according 
to  weight  I  think  that  the  words  "shall  be  paid  according  to 
the  actual  weight  gotten  by  them  of  the  mineral  contracted  to  be 
gotten,"  are  intended  to  refer  to  the  whole  of  the  stuflf  in  the  tub 
when  it  comes  to  the  pit's  mouth.  That  construction  makes  the 
provisions  of  the  section  intelligible,  and  it  is  the  construction 
adopted  by  the  House  of  Lords  in  Netherseal  Colliery  Go.  v. 
Bourne.  When  we  come  to  the  deductions  dealt  with  by  the 
proviso,  I  am  clearly  of  opinion  that  the  words,  "  nothing  in  this 
section  shall  preclude  the  owner  ...  of  the  mine  from  agreeing 
with  the  persons  employed  in  the  mine  that  deductions  shall  be 
made  in  respect  of  stones  or  substances  other  than  the  mineral 
contracted  to  be  gotten,"  refer  to  deductions  in  respect  of  weight. 
In  my  view  the  intention  of  the  Legislature  was  that  the  men 
should,  in  any  event,  be  paid  according  to  weight  for  the  mineral 
actually  gotten  by  them.  The  mine-owner  is  entitled  to  make 
certain  deductions  in  weight,  in  respect  of  stones  and  substances 
other  than  minerals,  from  the  quantity  brought  up  in  the  tub  to 


206  MASTEE  AND   SERVANT. 

Ko.  3.  — Xeaxney  y.  WMtehaven  Colliery  Co.,  1893,  1  Q.  B.  712,  713. 

the  pit's  mouth ;  but  it  is  essential  that  the  men  should  be  paid 
according  to  the  weight  of  the  actual  coal  gotten  by  them  and 
contained  in  the  tubs.  In  the  present  case  an  agreement  has  been 
made  between  the  masters  and  the  men,  that  if  a  tub  of  15  cwt. 
contained  over  25  lbs.  of  dirt,  the  men  were  to  be  paid  on  one- 
half  only  of  the  weight  of  the  tub ;  and  if  it  contained 
[*  713]  over  35  lbs.  of  dirt,  they  were  to  be  paid  nothing  at  *  all 
in  respect  of  the  coal  in  the  tub.  Such  an  arrangement 
appears  to  me  to  be  in  contravention  of  the  proviso  to  sect.  12, 
and  therefore  unlawful  It  has  been  argued  that  the  result  of 
that  unlawful  provision  is  to  vitiate  the  whole  contract  of  employ- 
ment. The  law  is  clear  that  where  the  consideration  for  a  promise 
or  promises  contained  in  the  contract  is  unlawful,  the  whole  agree- 
ment is  void.  The  reason  is  that  it  is  impossible  to  discriminate 
between  the  weight  to  be  given  to  different  parts  of  the  considera- 
tion, and  therefore  you  cannot  sever  the  legal  from  the  illegal 
part.  But  where  there  is  no  illegality  in  the  consideration,  and 
some  of  the  provisions  are  legal  and  others  illegal,  the  illegality  of 
those  which  are  bad  does  not  communicate  itself  to,  or  contami- 
nate, those  which  are  good,  unless  they  are  inseparable  from  and 
dependent  upon  one  another.  Here  the  consideration  moving 
from  the  master  to  the  men  is  the  employment  and  the  payment 
of  wages.  The  consideration  moving  from  the  men  to  the  master 
is  the  services  rendered  by  them.  Both  are  good  and  lawful  con- 
siderations. Then  we  come  to  the  stipulation  with  respect  to 
deductions.  I  am  of  opinion  that  that  stipulation  is  altogether 
separable  from  and  independent  of  the  consideration.  It  follows 
that  Charles,  J.,  was  right  in  holding  that  the  promise  to  give 
fourteen  days'  notice  was  separable  from  the  promise  as  to  deduc- 
tions, and  that  the  one  promise  should  be  given  effect  to,  and 
the  other  not.  I  think,  therefore,  that  this  appeal  should  be 
dismissed. 

A.  li.  Smith,  L.  J.  —  I  am  of  the  same  opinion.  The  proceedings 
taken  by  the  respondents  against  the  appellant  were  founded 
upon  a  breach  by  the  appellant  of  his  contract  by  leaving  the 
employment  without  giving  fourteen  days*  notice.  The  proceed- 
ings were  taken  under  the  Employers  and  Workmen  Act,  1875, 
and  the  defence  raised  was  that  by  virtue  of  sect.  12  of  the  Coal 
Mines  Eegulation  Act,  1887,  the  stipulation  in  the  contract  with, 
respect  to  deductions  was  illegal,  and  that  the  whole  contract 


B.  C.  VOL.  XVn.]      SECT.  L  —  CONTKACT  FOR  SERVICE.  207 

Vo.  a.  —  Kearofiy  y.  Whitabay«n  CkdUery  Co.,  1893, 1  Q.  B.  713,  714. 

was  thereby  rendered  illegal,  so  that  the  appellant  was  entitled 
to  disregard  the  provision  about  giving  notice.  It  is  admitted 
that  what  has  been  done  was  agreed  to  by  the  men,  and  has 
been  going  on  for  years,  and  probably  may  have  been 
*  beneficial  to  them.  What  has  been  done  is  this :  They  [*  714] 
do  not  weigh  for  dirt  every  tub  which  comes  to  the  top, 
but  they  give  the  men  the  benefit  of  nineteen  out  of  twenty  tubs. 
They  test  about  one  tub  in  twenty,  no  matter  by  what  man  it  is 
sent  up.  If  it  contains  no  more  than  25  lbs.  of  dirt,  then  no 
drawback  is  made.  If  it  contains  more  than  25  lbs.  and  not  more 
than  35  lbs.,  then  a  drawback  of  one-half  the  weight  of  the  coal 
in  the  tub  is  made  ;  and  if  it  contains  more  than  35  lbs.,  then  no 
payment  at  all  is  made  for  the  coal  in  the  tub.  Now,  in  my 
judgment,  the  House  of  Lords  has  practically  put  this  construction 
on  the  section :  A  pitman,  when  paid  by  weight,  must  be  paid 
according  to  the  weight  of  the  coal  he  actually  wins,  but  by  the 
proviso  the  master  may  agree  with  him  to  make  deductions  from 
the  total  weight  of  what  is  sent  up  in  the  tub  in  respect  of  stones 
and  substances  other  than  mineral.  If  all  that  had  been  done 
here  was  to  agree  upon  some  mode  of  finding  out  what  was  the 
average  amount  of  dirt  in  a  given  number  of  the  tubs  sent  up, 
without  weighing  every  one  of  them,  I  do  not  think  any  difficulty 
would  arise  under  the  section ;  but  what  was  done  was  this : 
when  a  certain  proportion  of  dirt  was  found  in  the  tub  selected  for 
testing,  the  actual  coal  in  that  tub  was  not  paid  for  at  all.  In 
face  of  that,  can  it  be  said  that  the  provisions  of  sect.  12  have  not 
been  disregarded?  I  am  of  opinion  that  they  have.  Then  the 
question  is,  Does  that  illegal  part  of  the  agreement  vitiate  the 
whole  ?  Charles,  J.,  has  held  that  it  does  not ;  and  I  think  his 
reasons  for  coming  to  that  conclusion  are  well  founded.  The  rule 
is,  that  if  the  consideration  is  tainted  with  illegality,  either  in 
whole  or  in  part,  all  the  promises  depending  upon  that  considera- 
tion must  fail ;  but  if  the  consideration  be  not  tainted  with  ille- 
gality, either  wholly  or  in  part,  then  if  one  of  the  several  promises 
depending  upon  it  be  illegal  in  itself  and  the  others  legal,  the 
legal  promises  stand,  and  may  be  enforced  against  the  person  who 
has  made  them.  In  the  contract  before  us  the  master  agrees  to 
employ  the  man,  who,  in  consideration  that  the  master  will  take 
him  into  his  employment  and  pay  him  wages,  promises  to  serve 
the  master,  and  not  to  leave  the  employment  without  fourteen 


208  MASTER  AKD   SERVANT. 

Vof.  8,  8.  —  Winitone  y.  Unn ;  Keezn^y  v.  WMtehaven  Colliery  Co.  —  Votes. 

days'  notice.  Both  considerations  from  the  man  to  the 
[*  715]  *  master  and  from  the  master  to  the  man  are  good.     Then 

there  is  one  promise  —  that  with  respect  to  the  deductions 
—  which  is  illegal  and  cannot  be  enforced.  But  the  promise 
which  the  master  is  here  seeking  to  enforce  against  the  servant  is 
not  illegal  It  is  founded  upon  a  good  consideration ;  and  I  am, 
therefore,  of  opinion  that  the  defence  set  up  by  the  appellant  fails. 
This  appead  should  be  dismissed.  Appeal  dismissed. 

ENGLISH  NOTES. 

The  application  of  the  rule,  like  every  rule  of  construction,  may  be 
varied  by  the  terms  of  the  contract.  Thus  in  Westwick  v.  Theodor 
(1875),  L.  R.  10  Q.  B.  224,  44  L.  J.  Q.  B.  110,  there  was  a  proviso  in 
an  apprenticeship  deed  that  the  apprentice  would  obey  all  commands 
and  give  his  services  entirely  to  the  business  during  office  hours.  The 
justification  was  that,  ''after  the  contract  and  before  breach,  [the 
apprentice]  misconducted  himself  in  the  service  by  wilfully  disobeying 
the  reasonable  and  lawful  orders  of  the  defendant,  by  him  given  to 
[the  apprentice],  in  the  service,  and  by  habitually  neglecting  his  orders 
in  the  service,  and  failing  to  perform  the  same,  and  by  absenting  him- 
self from  the  defendant's  service  and  refusing  to  give  his  services 
during  office  hours  without  just  cause,  and  by  acting  and  behaving 
with  insubordination  to  the  defendant  so  being  his  master."  This  was 
held,  upon  demurrer,  a  good  cause  of  dismissal. 

So  too  where  the  act  of  the  apprentice  is  the  cause  of  the  breach  of 
stipulation  complained  of,  the  action  will  fail.  Raymond  v.  Minton 
(1866),  L.  R.  1  Ex.  244,  35  L.  J.  Ex.  163,  14  L.  T.  367,  14  W.  R.  675. 
There,  to  an  action  for  not  teaching  the  apprentice,  the  defendant 
pleaded  that  "at  the  time  of  the  alleged  breach  the  apprentice  would 
not  be  taught,  and  by  his  own  wilful  acts  hindered  and  prevented  the 
defendant  from  teaching  him,"  &c.  This  was  held  a  good  plea  on 
demurrer. 

Habitual  dishonesty  will  entitle  the  master  to  discharge  the  appren- 
tice. LearoydY.  Brook  (1891),  1  Q.  B.  431,  60  L.  J.  Q.  B.  373,  64  L. 
T.  458,  39  W.  R.  480.  There  the  apprentice  to  a  pawnbroker  was  in 
the  habit  of  purloining  small  sums  from  the  till.  It  appeared  that  from 
£300  to  £400  worth  of  jewellery,  together  with  other  articles  of  value, 
were  pledged  daily  at  the  shop  where  the  apprentice  was  employed.  It 
would  seem,  however,  that  mere  petty  pilfering,  such  as  helping  him- 
self to  the  contents  of  a  sugar  basin,  would  not  entitle  the  master  to 
put  an  end  to  the  relationship.  Fhillips  v.  Clift  (1859),  4  H.  &  K. 
168,  28  L.  J.  Ex.  153. 


R.  C.  VOL.  XVn.]        SECT.  L  —  CONTRACT  FOE  SERVICE.  209 

Hof.  2,  8. — Winftane  v.  Idnn;  Kearney  v.  Whitehayen  Gdllieiy  Go.  — Hotei. 

The  right  of  the  persons  aggrieved  by  the  refusal  of  the  master  to 
perform  his  part  of  the  agreement  is  in  damages  only,  and  there  is  no 
right  to  a  return  of  the  premium.  This  was  first  settled,  overruling 
the  earlier  decisions  to  the  contrary,  in  Bex  v.  Vandeleur  (1716),  1  Str. 
69;  see  also  1  Wms.  Saund.  525,  note  (3),  ed.  1871.  To  the  cases  cited 
in  Wms.  Saund.  may  be  added  Whincup  v.  Hughes  (1871),  L.  R.  6  C. 
P.  78,  40  L.  J.  C.  P.  104,  24  L.  T.  74,  and  Learoyd  v.  Brooke  supra. 
The  master  may,  however,  bind  himself  to  return  the  premium,  or  a 
part  of  it.  Derby  v.  Humber  (1867),  L.  R.  2  C.  P.  247,  15  L.  T.  538. 
The  Court  has,  in  the  case  of  articled  clerks  to  solicitors,  ordered  a  re* 
turn  of  a  part  of  the  premium;  but  this  is  only  in  exercise  of  its  juris* 
diction  over  them  as  officers  of  the  Court.  Bx  parte  Bayley  (1829), 
9  Bam.  &  Cress.  691,  33  R.  R.  290. 

The  right  of  the  master  to  enforce  the  stipulations  in  his  favour  de- 
pends in  the  first  instance  on  the  validity  of  the  apprenticeship  deed. 
If  the  apprentice  be  an  infant,  it  is  necessary  that  the  contract  should 
not  be  prejudicial  to  him.  The  question  was  adverted  to  in  the  notes 
to  Warwick  v.  Bruce,  No.  4  of  "  Contract,"  6  R.  C.  43.  The  leading 
authority  respecting  infcint  apprentices  is  Bey.  v.  Lord  (1848),  cited 
6  R.  C,  at  p.  48  (12  Q.  B.  757,  17  L.  J.  M.  C.  181).  An  infant  bound 
apprentice  is,  upon  attaining  majority,  entitled  to  be  discharged  from 
the  indenture.  Ex  paHe  Davis  (1794),  5  T.  R  715,  2  R.  R.  690.  If 
the  apprentice  on  coming  of  age  avoids  the  indenture,  an  adult  party  will 
be  liable  upon  a  covenant  for  his  service  beyond  that  time  :  Whitley  v. 
Loftus  (1713),  8  Mod.  190;  Ex  parte  Davis,  supra^  Cuming  v.  Hill 
(1819),  3  Barn.  &  Aid.  59,  22  R.  R.  305;  unless  the  whole  deed  of 
apprenticeship  is  made  void  by  statute:  Quppy  v.  Jennings  (1793), 
1  Anstr.  2m,  3  R.  R.  585. 

An  infant  apprentice,  however,  is  not  liable  in  an  action  of  covenant. 
Gylbert  v.  Fletcher  (1628),  Cro.  Car.  179.  Where  there  is  no  remedy 
on  the  covenant  at  law,  there  is  no  equitable  remedy  by  injunction. 
De  Francesco  v.  Bamum  (1889),  43  Ch.  D.  165,  59  L.  J.  Ch.  151,  62 
L.T.40. 

In  the  case  of  a  servant,  not  being  an  apprentice,  it  is  only  rarely 
that  the  rule  would  apply,  and  then  generally  under  complicated  cir- 
cumstances, as  was  the  case  in  the  second  principal  case.  In  the  case 
of  master  and  servant,  there  is  seldom  a  stipulation  respecting  matters 
other  than  the  length  of  service  and  the  remuneration  to  be  paid.  The 
master  is  entitled  to  avail  himself  of  any  cause  for  dismissal  in  justify- 
ing his  conduct  in  an  action  for  wrongful  dismissal ;  even  although  he 
was  unaware  of  the  cause  giving  him  his  right  to  dismiss  at  the  time 
when  he  put  an  end  to  the  service.  Boston  Deep  Sea  Co,  v.  Ansell 
(C.  A.  1888),  39  Ch.  D.  339,  59  L.  T.  345.     This  is  really  established 

VOL.  XVII.  —  14 


210  MASTER  AND   SERVANT. 

Hof.  2,  8. — WinstODfi  v.  lixin;  Keaznay  ▼.  Whitehayen  GoUiary  Go.  — HotM. 

by  many  old  cases,  but  the  point  is  frequently  obscured  in  the  reports 
of  the  earlier  cases  by  the  discussion  whether  a  virtute  cujus  was  trav- 
ersable.    As  to  this  see  1  Wms.  Saund.  16,  490,  ed.  1871. 

The  following  causes  have  been  held  to  justify  a  dismissal :  —  The 
receipt  of  a  secret  commission :  Boston  Deep  Sea  Co.  v.  Ansell,  supra. 
Gambling  by  a  clerk  on  the  Stock  Exchange:  Pearce  v.  Foster  (C.  A. 
1886),  17  Q.  B.  D.  636,  65  L.  J.  Q.  B.  306,  64  L.  T.  664.  Generally 
a  claim  incompatible  with  the  continuance  of  the  relationship,  as  a 
claim  by  a  clerk  to  be  considered  a  partner:  Amor  y.  Fearon  (1839) 
9  Ad.  &  El.  648,  1  P.  &  D.  398,  8  L.  J.  Q.  B.  95.  Disobedience  of  an 
express  order,  however  harshly  the  master  may  have  acted :  Spain  v. 
Amott  (1817),  2  Stark.  256,  19  R.  R.  715;  Turner  v.  Mason  (1845), 
14  M.  &  W.  112,  14  L.  J.  Ex.  311.  Immorality  justifies  dismissal: 
Bex  V.  Welford  (1778),  Cald.  57;  Atkin  v.  Acton  (1830),  4  Car.  &  P. 
208;  but  mere  concealment  of  previous  immoral  conduct  does  not  jus- 
tify a  breach  of  the  engagement :  Fletcher  v.  Krell  (1872),  42  L.  J. 
Q.  B.  55,  28  L.  T.  105.  Incompetence  justifies  dismissal:  Harmer  y. 
Cornelius  (1858),  5  C.  B.  (N.  S.)  236,  28  L.  J.  C.  P.  85,  4  Jur. 
(N.  S.)  1110. 

Temporary  illness  will  not  justify  dismissal.  Cuckson  v.  Stones 
(1859),  1  Ell.  &  Ell.  248,  28  L.  J.  Q.  B.  25,  7  W.  R.  134. 

^^It  is  clear  and  established  beyond  all  doubt  by  authorities  which 
we  should  not  be  justified  in  overruling,  even  if  we  desired  to  do  so, 
that  the  servant  who  is  dismissed  for  wrongful  behaviour  cannot  re- 
cover his  current  salary,  that  is  to  say,  he  cannot  recover  salary  which 
is  not  due  and  payable  at  the  time  of  his  dismissal,  but  which  is  only 
to  accrue  due  and  become  payable  at  some  later  date,  and  on  the  condi- 
tion that  he  had  fulfilled  his  duty  as  a  faithful  servant  down  to  that 
later  date.  The  authorities  put  the  question  beyond  dispute,  and  prin- 
ciple also  leads  us  to  the  same  conclusion.  The  servant  cannot  sue  in 
such  a  case  on  the  original  contract  with  the  master,  because  the  con- 
tract which  his  master  has  made  is  that  he  shall  pay  the  salary  only  at 
the  end  of  the  current  period  which  has  not  yet  expired,  and  the  servant 
by  his  wrongful  conduct  has  prevented  himself  from  suing  for  that  salary 
by  non-performance  of  the  condition  precedent  under  the  contract.  He 
cannot  recover,  therefore,  on  the  special  contract,  nor  can  he  recover  on 
a  quantum  meruity  because  he  cannot  take  advantage  of  his  own  wrong- 
ful act  to  insist  that  the  contract  is  rescinded.  As  regards  himself  the 
contract  is  still  open,  although  he  has  chosen  to  break  it."  Per  Bowen, 
L.  J.,  in  Boston  Deep  Sea  Co.  v.  Ansell  (C.  A.  1888),  39  Ch.  D.  339, 
364,  69  L.  T.  345.  The  leading  case  is  Cutter  v.  Powell  (1795),  6  R. 
C.  627  (6  T.  R.  320,  3  R.  R.  185,  2  Smith  Lead.  Cas.  1,  10th  ed.). 

Where  a  servant  has  been  wrongfully  dismissed,  and  it  appears  that 


B.  C.  VOL.  XVll.]        SECT.  I.  —  CONTRACT  FOR   SERVICE.  211 

Hos.  S^  8.  — Wixutone  ▼.  Lfam ;  Xeaniey  v.  Whitehayen  Colliery  Co.  —  Hotes. 

he  could  have  at  once  obtained  a  fresh  employment,  which  a  reasonable 
man  would  have  accepted,  he  will  only  be  entitled  to  nominal  damages. 
MacDonnell  v.  Marston  (1884),  1  Cab.  &  Ell.  281. 

AMERICAN  NOTES. 

Winstone  v.  Linn  is  cited  in  Wood  on  Master  and  Servant 

The  master  takes  the  apprentice  for  better  or  for  worse,  and  so  is  bound  to 
furnish  proper  medical  attendance:  Easley  v.  Craddock,  4  Randolph  (Vir- 
ginia), 423 ;  and  is  liable  for  his  wages  while  he  is  sick :  Cadeti  y.  Fartoellf  98 
Mass.  137. 

In  Powers  y.  Ware,  2  Pickering  (Mass.),  452,  it  was  held  that  the  stealing 
by  an  apprentice  of  his  master's  property  was  no  ground  of  dismissal,  although 
it  might  justify  a  Court  in  cancelling  the  indentures  (citing  Winstone  v.  Linn), 

But  a  master  is  not  bound  to  furnish  a  mere  servant  with  medicines  or 
medical  attendance  (2  Kent  Com.  261),  except  in  case  of  sudden  and  extreme 
emergency.  Ohio  Sf  M.  R.  Co.  v.  Early,  141  Indiana,  73;  28  Lawyers*  Rep. 
Annotated,  546. 

In  Percival  v.  Nevill,  1  Nott  &  McCord  (So.  Car.),  452,  it  was  held  that  a 
master  is  not  liable  for  medical  attendance  on  an  apprentice  unless  by 
special  agreement  or  employment,  and  where  it  was  rendered  under  his  own 
roof. 

In  Dunbar  v.  WUliamSy  10  Johnson  (N.  Y.),  249,  it  was  thought  that  the 
master  of  a  slave  would  be  liable  for  necessary  medical  attendance  on  a 
slave  where  there  was  no  opportunity  for  previous  consultation  with  the 
master. 

A  servant  may  be  discharged  for  pregnancy:  Hobbs  v.  Harlan,  10  Lea 
(Tennessee),  268;  robbery:  Libhart  v.  Wood,  1  Watts  &  Sergeant  (Penn.), 
265 ;  habitual  drunkenness :  Gonsolis  v.  Gearhart,  31  Missouri,  585 ;  Ulrich  v. 
Eower,  156  Penn.  State,  414 ;  fraudulent  conduct  toward  master :  Singer  v. 
McCormick,  4  Watts  &  Sergeant,  265 ;  engaging  in  the  same  business  on  his 
own  account  during  the  term  of  service :  Dieringer  v.  Meyer,  42  Wisconsin, 
311 ;  24  Am.  Rep.  415 ;  sending  a  challenge  to  fight  a  duel :  Dolby  v.  Kinnear, 
1  Kerr  (New  Brunswick),  480 ;  selling  pills  to  produce  abortion :  Kidd  v. 
Pill  j"  Af.  Co.,  91  Iowa,  261 ;  for  lack  of  ordinary  skill  as  a  ball-player :  Baltir 
more  Baseball  Cluby.  Pickett,  78  Maryland,  375;  44  Am.  St.  Rep.  304;  22 
Lawyera'  Rep.  Annotated,  690 ;  see  Crescent  Horseshoe  Sf  /.  Co.  v.  Eynon  (Vir- 
ginia), 27  S.  E.  Rep.  935;  for  long  sickness :  Lacy  v.  Getman,  119  New  York, 
109;  Johnson  v.  WaUcer,  155  Massachusetts,  253  (seven  weeks);  Waugh  v. 
Shunk,  20  Penn.  State,  133 ;  Powell  v.  Newell,  59  Minnesota,  406 ;  for  intro- 
ducing gambling  into  a  hotel  of  which  the  servant  is  manager,  and  absenting 
himself  every  evening  from  eight  to  eleven  o'clock :  Wyatty.  Brown  (Tennessee), 
42  S.  W.  Rep.  478. 

But  not  for  refusing  to  work  on  Sunday:  Van  Winkle  v.  Satterjield,  58 
Arkansas,  617;  23  Lawyers*  Rep.  Annotated,  853;  nor  for  getting  married, 
unless  it  interferes  with  her  performance  of  her  duties :  Edgecomb  v.  Buck- 
land,  146  New  York,  332 ;  nor  for  absence  a  single  day  in  a  term  of  a  year : 


212  MASTER  AND   SERVANT. 


Ko.  4.  — Baddeley  v.  Earl  QraaTiUe,  19  Q.  B.  D.  428.  —  Bole. 

Shaver  y.  Ingham^  58  Michigan,  649 ;  55  Am.  Bep.  712 ;  nor  for  absence  nine 
and  a  half  days  in  such  a  term :  Bast  y.  Byrne^  51  Wisconsin,  531 ;  37  Am. 
Rep.  841 ;  nor  for  occasional  absence  from  Saturday  till  Monday,  where  ser- 
vant had  agreed  to  deyote  his  whole  time :  Shoemaker  v.  Acker ,  116  Calif omia, 


Section  II.  —  IddbUitt/  of  Master  for  Injuries  to  Servant. 

No.  4  — BADDELEY  v.  EAEL  GEANVILLE. 
(Q.  B.  D.  1887.) 

No.  5.  — YAEMOUTH  v.  FRANCK 

(Q.  B.  D.  1887.) 

RULE. 

The  maxim  volenti  nonfU  injuria  is  not  applicable  in  cases 
where  the  injury  arises  from  the  breach  of  a  statutory  duty. 

Mere  knowledge  on  the  part  of  the  servant  that  the  plant 
employed  was  defective  and  dangerous  will  not  necessarily 
be  construed  as  amounting  to  a  voluntary  undertaking  of  a 
particular  risk. 

Baddeley  v.  Earl  Oranville. 

19  Q.  B.  D.  423-428  (s.  c.  56  L.  J.  Q.  B.  501 ;  57  L.  T.  268 ;  36  W.  R.  63). 

[428]  MasUr  and  Servant  — Breach  of  Statutory  Duty.  —  Volenti  non  fit  Ir^wria. 

The  plaintiff's  husband  had  been  employed  in  the  defendant's  coal  mine. 
One  of  the  rales  established  in  the  mine,  under  sect.  52  of  the  Coal  Mines  Regu- 
lation Act,  1872,  required  a  banksman  to  be  constantly  present  while  the  men 
were  going  up  or  down  the  shaft ;  but  it  was  the  regular  practice  of  the  mine, 
as  the  plaintiff's  husband  well  knew,  not  to  have  a  banksman  in  attendance 
during  the  night.  The  plaintiff's  husband  was  killed  in  coming  out  of  the 
mine  at  night  by  an  accident  arising  through  the  absence  of  a  banksman.  In  an 
action  under  the  Employers'  Liability  Act,  1880, — 

Held,  that  the  defence  arising  from  the  maxim  volenti  non  fii  injuria  was  not 
applicable  in  cases  where  the  injury  arose  from  the  breach  of  a  statutory  duty 
on  the  part  of  the  employer,  and  that  the  plaintiff  was  entitled  to  recover. 

Appeal  from  the  Hanley  County  Court  of  Staffordshire. 
The  action  was  under  the  Employers'  Liability  Act,  1880  (43  & 
44  Vict,  c.  42),  8.  1,  sub-s.  2,  and  was  brought  to  recover  damages 


R.  C.  VOL.  XVIL]      sect.  IL — LIABILITY  FOR  INJURIES  TO  SERVANT.     213 
Ko.  4.  — BaddAley  V.  Barl  GranTiUe,  19  Q.  B.  D.  428,  424. 

for  the  death  of  the  plaintiffs  husband,  which  happened  under  the 
following  circumstances :  — 

The  defendant  was  a  colliery  owner,  and  special  rules  for  the 
management  of  his  collieries  were  established  under  sect.  52  of  the 
Coal  Mines  Eegulation  Act,  1872  (35  &  36  Vict.,  c.  76),  which 
provides  that  "  there  shall  be  established  in  every  mine  to  which 
this  Act  applies  such  rules  (referred  to  in  this  Act  as  special 
rules)  for  the  conduct  and  guidance  of  the  persons  in  the  manage- 
ment of  such  mine,  or  employed  in  or  about  the  same,  as,  under  the 
particular  state  and  circumstances  of  such  mine,  may  appear  best 
calculated  to  prevent  dangerous  accidents,  and  to  provide  for  the 
safety  and  proper  discipline  of  the  persons  employed  in 
*  or  about  the  mine,  and  such  special  rules,  when  estab-  [*  424] 
lished,  shall  be  .  .  .  observed  in  and  about  every  such 
mine,  in  the  same  manner  as  if  they  were  enacted  in  this  Act." 
One  of  the  special  rules  required  a  banksman  to  be  constantly 
present  at  the  pit's  month  when  the  men  were  going  up  or  down 
the  shaft.  It  was,  however,  the  regular  practice  of  the  mine  that 
no  banksman  should  be  in  attendance  during  the  night,  and  of 
this  practice  the  deceased,  who  worked  in  the  colliery,  was  fully 
aware.  While  the  deceased  was  coming  out  of  the  shaft  at  night, 
no  banksman  being  present,  an  accident  happened  owing  to  a 
signal  to  lower  the  cage  being  improperly  given  to  the  engineman 
by  a  boy  of  fourteen  years  of  age,  who  took  upon  himself  to  inter- 
fere and  to  give  the  signal ;  from  the  effects  of  this  accident  the 
deceased  died  on  the  following  day. 

The  County  Court  Judge,  being  of  opinion  that  the  negligence  of 
the  certified  manager  of  the  mine  in  systematically  allowing  the 
rule  to  be  broken  was  the  proximate  cause  of  the  accident,  gave 
a  verdict  and  judgment  for  the  plaintiff  for  £120.  The  defendant 
appealed. 

Upon  the  argument  of  the  appeal  three  points  were  taken  on 
behalf  of  the  defendant :  1st,  That  the  County  Court  Judge  misread 
the  rule  in  assuming  that  it  imposed  upon  the  defendant  an  abso- 
lute obligation  to  have  a  banksman  at  the  surface  at  all  times 
during  the  progress  of  the  cage  up  or  down  the  shaft;  2nd,  that 
the  negligence  of  the  manager  in  allowing  the  banksman  to  be 
absent  during  the  night  was  not  the  proximate  cause  of  the  acci- 
dent, which  was  due  to  the  improper  interference  of  the  boy ;  and, 
3rd,  that,  as  the  deceased  performed  his  duties  with  a  full  knowl- 


214  MASTER  AND   SERVANT. 


Ho.  4.  — BaddAley  V.  Earl  QraaTille,  19  Q.  B.  D.  424,  426. 

edge  of  the  practice  of  the  mine,  he  voluntarily  incurred  the  risk, 
and  the  maxim  volenti  non  Jit  injuria  was  therefore  an  answer  to 
the  action.  All  the  points  were  decided  in  the  plaintififs  favour, 
but  the  case  is  only  reported  on  the  last  point. 

Aspland,  Q.  C.  (G.  E.  Tyrrell  with  him),  for  the  defendant.  — 
The  plaintiff  was  fully  aware  of  the  practice  of  the  mine,  and 
voluntarily  undertook  the  risk ;  the  maxim  volenti  non  Jit  injuria 
therefore  affords  a  good  defence  to  the  action.  The  dis- 
[•  425]  tinction  *  between  the  breach  of  a  statutory  duty  and  of 
a  duty  at  common  law  cannot  be  maintained,  as  was 
pointed  out  by  the  Master  of  the  Rolls  in  Thomas  v.  Quarter- 
maine,  18  Q.  B.  D.  685,  which  is  not  distinguishable  from  the 
present  case.  It  is  true  that  in  Clarke  v.  Holmes,  7  H.  &  K  937, 
31  L.  J.  Ex.  356,  there  was  a  breach  by  the  defendant  of  a  statu- 
tory duty  to  fence  machinery,  but  the  decision  proceeded  upon  the 
ground  that  the  workman  had  called  the  masters  attention  to  the 
defect,  that  a  remedy  had  been  promised,  and  that  the  servant 
had  gone  on  working  under  such  promise,  and  upon  the  further 
ground  that,  apart  from  any  question  of  statutory  obligation,  there 
was  a  duty  at  common  law  upon  the  master  to  fence,  and  that  a 
breach  of  that  duty  was  negligence  for  which  he  was  responsible. 
Wilson  V.  Merry,  L.  R  1  Sc.  App.  326,  is  a  direct  authority  in  the 
defendant's  favour. 

C.  A.  Eussell,  for  the  plaintifif.  —  The  distinction  between  a 
common-law  duty  and  one  imposed  by  statute  is  well  established, 
and  is  recognised  both  by  Bowen,  L.  J.,  and  Fry,  L.  J.,  in  Thomas 
V.  Quartermaine.  It  is  possible  that  the  deceased  might  not  have 
been  able  to  bring  an  action  for  wages  lost  by  him  if  he  had  not 
gone  down  the  pit  owing  to  the  banksman's  absence ;  but  it  is 
unnecessary  to  show  that  he  had  such  a  right  of  independent 
action  for  the  breach  of  duty  before  he  can  acquire  a  right  to  sue 
in  respect  of  the  negligence. 

Aspland,  Q.  C.  in  reply. 

Wills,  J.  —  The  question  raised  in  this  case  is  one  of  some 
diflBculty.  The  recent  decision  of  Thomas  v.  Quartermaine  has 
established  the  doctrine  that,  in  cases  where  primd  facie  an  action 
lies  under  the  Employers'  Liability  Act,  an  answer  is  supplied  if 
the  servant  voluntarily  took  on  himself  the  risks  which  proved 
fatal.  That  decision  is  one  of  which  we  have  not  heard  the  last; 
it  has  opened  up  a  new  field  of  inquiry  and  a  new  domain  of  Kti- 


R  C.  VOL.  XVII.]     SECT.  H.— LIABILITY  FOB  INJURIES  TO  SERVANT.     215 
Ko.  4.  — Baddeley  ▼.  Earl  GnuxTille,  19  Q.  B.  D.  426,  426. 

gation  in  this  class  of  cases.     Like  all  cases  where  general  words 

of  wide  application  are  used,  it  has  given  rise,  and  will  continue 

to  give    rise,    to  much   discussion.      It    must  not  be  supposed 

that  in  saying  this  'I  have   the  slightest  intention   of 

*  speaking  disparagingly  of  that  decision,  or  that  I  express  [*  426] 

anything  but  my  sense  that  a  class'  of  questions  difficult 

of  determination  will  arise  from  it. 

I  do  not  attempt  to  frame  any  general  rule ;  the  circumstances 
of  each  case  vary  immensely,  and  my  remarks  are  confined  to 
those  of  this  particular  case.  Nor  do  I  in  any  way  discuss  the 
general  meaning  oi,  or  the  limitations  which  should  be  imposed 
upon,  the  maxim  of  volenti  non  fit  injuria ;  I  only  say  that  its 
application  will  require  to  be  watched  with  great  care.  Assuming 
it  to  be  generally  applicable  in  the  widest  sense,  it  is  sufficient  to 
say  that  in  Tfiomas  v.  Quartermaine,  18  Q.  B.  D.  685,  both  the 
Lords  Justices  thought  that  the  maxim  would  not  apply  at  all 
where  the  injury  arose  from  a  direct  breach  by  the  defendant  of 
a  statutory  obligation.  I  agree  with  the  suggestion  of  Mr.  Eussell 
that  the  remarks  of  Bowen,  L.  J.,  on  this  point  were  not  made  in 
any  casual  manner.  It  is  true  indeed  that  the  Master  of  the 
Rolls  expressed  a  different  opinion,  and  that  the  observations  were 
unnecessary  for  the  decision  of  that  particular  case ;  but  we  have 
the  deliberately  expressed  opinion  of  two  of  the  Judges  of  the 
Court  of  Appeal,  to  which,  though  not  strictly  binding  upon  us,  I 
should  be  in  any  case  disposed  to  pay  the  greatest  respect,  and 
with  which  I  in  fact  agree.  There  is,  besides,  much  to  be  said  on 
public  grounds  in  favour  of  it.  An  obligation  imposed  by  statute 
ought  to  be  capable  of  enforcement  with  respect  to  all  future 
dealings  between  parties  aflfected  by  it  As  to  the  result  of  past 
breaches  of  the  obligation  people  may  come  to  what  agreements 
they  like ;  but  as  to  future  breaches  of  it,  there  ought  to  be  no 
encouragement  given  to  the  making  of  an  agreement  between  A. 
and  B.  that  B.  shall  be  at  liberty  to  break  the  law  which  has 
been  passed  for  the  protection  of  A.  Such  an  agreement  might 
be  illegal,  though  I  do  not  hold  as  a  matter  of  law  that  it  would 
be  so.  But  it  seems  to  me  that  if  the  supposed  agreement  be- 
tween the  deceased  and  the  defendant,  in  consequence  of  which 
the  principle  of  volenti  non  fit  injuria  is  sought  to  be  applied, 
comes  to  this,  that  the  master  employs  the  servant  on  the  terms 
that  the  latter  shall  waive  the  breach  by  the  master  of  an  obliga- 


216  MASTER  AND  SERVANT. 


Ko.  4.  —  Baddeley  ▼.  Barl  OraaviUe,  19  Q.  B.  D.  426-428. 

tion  imposed  on  him  by  statute,  and  shall  connive  at  his 
[*427]  disregard  *of  the  statutory  obligation  imposed  on  him  for 

the  benefit  of  others,  as  well  as  of  himself,  such  an  agree- 
ment would  be  in  violation  of  public  policy  and  ought  not  to  be 
listened  to.  On  that  ground  there  is  much  to  be  said  in  favour  of 
the  opinion  expressed  in  the  Court  of  Appeal,  that  where  there  has 
been  a  breach  by  a  defendant  of  a  statutory  obligation  the  maxim 
volenti  nonfit  injuria  has  no  application. 

Mr.  Eussell  took  a  narrower  and  finer  point,  and  argued  that 
before  applying  the  maxim  volenti  nan  fit  injuria  to  an  action  of 
this  kind  it  must  be  shown  not  merely  that  the  servant  knew  that 
the  cage  would  travel  up  and  down  without  the  attendance  of  a 
banksman,  but  also  that  he  knew  that  the  necessity  for  the  pres- 
ence of  a  banksman  was  provided  for  by  the  colliery  rules,  as 
otherwise  the  servant  would  not  be  "  volens "  that  he  should  be 
deprived  of  the  protection  to  which  he  has  a  right  conferred  by 
statute.  It  is  not  shown  in  the  present  case  that  the  rules  were 
brought  to  the  notice  of  the  deceased,  and  an  essential  link  in  the 
evidence  appears  to  me  to  be  wanting.  I  do  not,  however,  decide 
the  case  on  this  ground,  nor  do  I  wish  it  to  be  supposed  that  I 
mistrust  what  I  have  before  said  as  to  the  applicability  of  the 
legal  maxim. 

Grantham,  J.  —  I  am  of  the  same  opinion.  It  is  argued  here 
that  the  plaintiif  cannot  recover  because  of  the  decision  in  Thomas 
V.  Quartermaine,  18  Q.  B.  D.  685,  but  we  are  precluded  from 
taking  that  view  by  the  peculiar  character  of  that  case.  It  is 
admitted  that  but  for  that  decision  the  present  defendant  would 
be  liable ;  but  then  both  the  Lords  Justices  in  Thomas  v.  Quarter- 
maine  say  that  their  decision  is  not  to  apply  to  a  case  like  the 
present.  How  then  can  the  defendant  rely  on  the  decision  in  that 
case  when  the  learned  Judges  in  the  Court  of  Appeal  say  that  it 
is  not  to  apply  to  cases  where  there  is  a  statutory  obligation  im- 
posed on  the  defendant  ?  The  application  of  that  decision  seems 
to  me  to  be  intentionally  limited  by  the  Court  to  the  case  before 
it.  If  that  is  so,  the  Lords  Justices  agree  with  the  Master  of  the 
EoLLS  that  the  defendant  would  be  liable  in  such  a  case  as  the 

present.  I  think  that  Blamires  v.  Lancashire  and  York- 
[*428]  shire  Ry.  Co.^lu  R  8  Ex.  283,  is  *very  much  in  point. 

It  was  there  held  that  a  breach  by  the  defendants  of  a 
statutory  obligation  to  have  a  communication  between  the  guard 


B.  C.  VOL.  XVn.]     SECT.  H. — LIABILITY  FOR  INJURIES  TO  SERVANT.     217 
Ho.  5.  —  Taimonth  ▼.  Ftanoe,  19  Q.  B.  D.  947. 

of  a  train  and  the  passengers  was  evidence  against  them  in  an 
action  of  negligence,  although  the  non-compliance  with  the  statu- 
tory obligation  was  not  the  proximate  cause  of  the  accident.  I 
am  clearly  of  opinion,  therefore,  that  where  there  has  been  a  dis- 
tinct breach  of  a  statutory  obligation  (the  obligation  in  the  present 
case  being  to  have  a  banksman  continually  watching  during  the 
progress  of  the  men  up  and  down  the  shaft)  the  case  of  Thomas 
V.  Quartermaine,  is  no  authority;  and  the  verdict  and  judgment 
for  the  plaintiif  in  the  County  Court  must  be  upheld. 

Appeal  dismissed, 

Yarmouth  v.  France. 

19  Q.  B.  D.  647-668  (8.  c.  57  L.  J.  Q.  B.  7;  36  W.  R.  281). 

Negligence. —  Employers'  LicMity  Act,  1880  (43  dt  44  Vict.,  c  42.—  [647] 
Volenti  nan  fit  If\juria.  —  '^  Workmen.'' —  '' Plant;'  '*  Defect*  in 
Condition  of. 

In  an  action  to  recover  compensation  under  the  Employers'  Liability  Act, 
1880,  it  appeared  that  the  plaintiff  was  in  the  employment  of  the  defendant, 
who  was  a  wharfinger,  and  for  the  purposes  of  his  business  the  owner  of  carts 
and  horses.  It  was  the  duty  of  the  plaintiff  to  drive  the  carts  and  to  load  and 
unload  the  goods  which  were  carried  in  them.  Among  the  horses  was  one  of  a 
vicious  nature,  and  unfit  to  be  driven  even  by  a  careful  driver.  The  plaintiff 
objected  to  drive  this  horse,  and  told  the  foreman  of  the  stable  that  it  was  unfit 
to  be  driven,  to  which  the  foreman  replied  that  the  plaintiff  must  go  on  driving 
it,  and  that  if  any  accident  happened  his  employer  would  be  responsible.  The 
plaintiff  continued  to  drive  the  horse,  and  while  sitting  on  his  proper  place  in 
the  cart  was  kicked  by  the  animal,  and  his  leg  was  broken. 

Held,  by  Lord  Ebher,  M.  R.,  Lindley,  L.  J.,  and  Lopes,  L.  J.,  sitting  as 
a  Divisional  Court,  that  the  plaintiff  was  a  **  workman  "  wiihin  the  definition  in 
sect  8  of  the  Act. 

Heldj  by  the  majority  of  the  Court,  Lord  Esher,  M.  R.,  and  Lindley,  L.  J. 
(Lopes,  L.  J.,  expressing  no  opinion),  that  the  horse  which  injured  the  plaintiff 
was  "  plant "  used  in  the  business  of  the  defendant,  and  that  the  vice  in  the 
horse  was  a  ^'  defect ''  in  the  condition  of  such  plant,  within  the  meaning  of 
sect.  1  of  the  Act. 

Held,  by  the  majority  of  the  Court,  Lord  Esher,  M.  R.,  and  Lindley,  L.  J. 
(Lopes,  L.  J.,  dissenting),  that  upon  the  facts  a  jury  might  find  the  defendant 
to  be  liable,  for  there  was  evidence  of  negligence  on  the  part  of  his  foreman, 
and  the  circumstances  did  not  conclusively  show  that  the  risk  was  voluntarily 
incurred  by  the  plaintiff. 

By  Lopes,  L.  J.,  dissenting,  that  there  was  no  evidence  for  the  jury  of  the 
defendant's  liability,  inasmuch  as  the  facts  showed  that  the  plaintiff,  with  full 
knowledge  of  the  risk  to  which  he  was  exposed,  had  elected  to  continue  in  the 
defendant's  employment. 


218  MASTER  AND  SERVANT. 


Ko.  5.  — Taimouth  v.  France,  19  Q.  B.  D.  647,  648. 


Action  under  the  Employers'  Liability  Act,  1880  (43  &  44  Vict., 
c.  42),  tried  in  the  City  of  London  Court,  without  a  jury.  The 
facts  were  as  follows  :  The  plaintiff  was  in  the  employ  of  the  de- 
fendant, a  wharfinger  and  warehouseman  in  London.  He  had  the 
care  of  a  horse  and  trolley,  part  of  his  duty  being  to  load  the  trol- 
ley and  to  unload  and  deliver  goods  to  the  consignees,  and  to  return 
with  the  trolley  to  his  employer's  premises,  and  there  stable  the 
horse.  He  had  been  so  engaged  for  about  four  years.  In 
[*  648]  August,  1886,  the  defendant  bought  a  new  horse,  *  which 
was  placed  under  the  plaintiff's  control  by  the  defendant's 
stable-foreman,  Tomlin.  The  plaintiff  found  that  the  animal  was 
vicious,  —  a  kicker  and  a  jibber,  —  and  altogether  dangerous  and 
unfit  to  be  driven ;  and  he  repeatedly  complained  of  it  to  Tomlin, 
who  had  the  general  management  and  control  of  the  defendant's 
horses,  telling  him  that  he  objected  to  drive  so  unsafe  an  animal. 
Upon  these  occasions  Tomlin's  answer  was,  "  Go  on ;  you  must  keep 
driving ;  "  adding,  "  if  you  meet  with  an  accident,  we  shall  have  to 
stand  responsible  for  that."  The  plaintiff  went  on  driving  the 
liorse  until  the  12th  of  November,  when,  whilst  sitting  on  the  fore 
part  of  the  trolley  (the  only  place  provided  for  the  driver's  seat), 
with  his  legs  hanging  down,  the  horse,  without  (as  the  plaintiff 
swore)  any  provocation,  kicked  out  and  broke  one  of  his  legs. 
There  was  no  evidence  that  the  plaintiff  had  ever  complained  to 
the  defendant  himself,  or  that  the  complaints  he  made  to  Tomlin 
had  ever  been  made  known  to  the  defendant. 

It  was  objected  on  the  part  of  the  defendant  that  the  evidence 
disclosed  no  cause  of  action  under  the  Employers'  Liability  Act ; 
that  the  plaintiff  was  not  a  "  workman, "  nor  was  the  horse 
"plant,"  within  the  Act ;  that  the  plaintiff  had  been  guilty  of  con- 
tributory negligence ;  and  that,  having  continued  to  drive  the  horse 
after  he  became  aware  of  its  vicious  character,  he  must  be  taken 
to  have  assented  to  incur  the  risk  of  accident  therefrom  (citing 
Thomas  v.  Quartermaine,  18  Q.  B.  D.  685). 

The  Judge  held  that  the  plaintiff  was  a  "workman,"  and  that 
the  horse  was  "  plant "  within  the  Act ;  but  he  further  held,  upon 
the  authority  of  Thomas  v.  Quartermaine,  that  as  the  plaintiff  con- 
tinued to  drive  the  horse  after  he  had  become  aware  of  its  vicious 
nature,  he  must  be  assumed  to  have  assented  to  take  upon  him- 
self the  risk  attending  it;  and  he  accordingly  gave  judgment  for 
the  defendant. 


B.  C.  VOL.  XVII.]     SECT.  H. — ^LIABILITY  FOR  INJURIES  TO  SERVANT.     219 
Ko.  5.  —  Taimonth  v.  Franoe,  19  Q.  B.  S.  048,  848. 

The  plaintiff  appealed,  and  the  argument  took  place  before  Lord 
EsHER,  M.  E.,  LiNDLBY,  L.  J.,  and  Lopes,  L.  J.,  sitting  as  a  Divi- 
sional Court. 

1877.  July  26.  W.  E.  Hume  Williams,  for  the  plaintiff.  —  First, 
the  plaintiff  was  a  "  workman, "  —  a  person  engaged  in 
manual  *  labour,  —  within  the  definition  given  in  sect.  10  [*  649] 
of  the  Employers  and  Workmen  Act,  1875,  38  &  39 
Vict.,  c.  90 ;  secondly,  the  horse  which  caused  the  injury  was 
"plant"  within  sect.  1,  sub-sect  1,  of  the  Employers'  Liability 
Act,  1880  ;  and,  thirdly,  that  the  plaintiff,  having  called  the  atten- 
tion of  the  defendant's  foreman  (under  whose  orders  he  worked)  to 
the  fact  that  the  horse  was  dangerous  and  unfit  to  be  driven,  had 
brought  himself  within  sub-sect.  3  of  sect.  2,  and  was  not  disen- 
titled to  recover  by  reason  of  his  having  under  the  circumstances 
continued  in  his  employment  rather  than  risk  dismissal  for  dis- 
obedience of  orders.  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685,  is 
distinguishable.  There  the  plaintiff,  knowing  the  dangerous  con- 
dition of  the  premises,  and  making  no  complaint,  might  fairly  be 
assumed  to  have  assented  to  incur  the  risk  incident  to  his  employ- 
ment. [He  cited  Paterson  v.  Wallace,  1  Macq.  748,  and  Clarice  v. 
Holmes,  7  H.  &  K  937,  31  L.  J.  Ex.  356.] 

Wood  Hill,  for  the  defendant  —  Cook  v.  North  Metropolitan 
Tramways  Co,,  18  Q.  B.  D.  683,  shows  that  a  "  driver  "  is  not  a  work- 
man within  the  Employers  and  Workmen  Act,  1875,  and  conse- 
quently not  entitled  to  the  benefit  of  the  Employers'  Liability  Act, 
1880 ;  secondly,  the  term  "  plant "  in  sect.  1,  sub-sect  1,  of  the  last- 
mentioned  Act  is  confined  to  fixtures  and  other  inanimate  chattels 
used  in  a  trade  or  business.  But,  even  assuming  that  a  horse 
could  be  considered  to  be  "  plant "  the  case  is  governed  by  Thomas 
V.  Qiiartermaine,  The  plaintiff,  if  he  objected  to  the  risk  involved 
in  driving  the  horse,  might  have  relinquished  his  employment 
His  reluctant  assent  to  obey  the  orders  of  the  foreman  did  not 
make  him  the  less  a  free  agent. 

[He  cited  Woodley  v.  Metropolitan  District  Ry.  Co,,  2  Ex.  D.  384, 
per  CocKBURN,  Ch.  J.]  Cur.  adv,  vult 

1887.  Aug.  11.  Lord  Esher,  M.  E.  —  In  this  case,  the  plaintiff 
was  in  the  employment  of  the  defendant,  who  was  a  wharfinger, 
and  for  the  purposes  of  his  business  the  owner  of  carts  or  trolleys 
and  horses.    Amongst  these  was  a  horse  which  was  of  an  ex- 


220  MASTER  AND  SERVANT. 


No.  5.  —  Tarmoath  v.  France,  19  Q.  B.  D.  660,  651. 


[*  650]  traordinarily  *  vicious  nature  and  wholly  unfit,  so  far 
as  is  stated  to  us,  to  be  driven  even  by  the  most  care- 
ful driver.  The  plaintiff  objected  to  drive  him,  and  told  the  fore- 
man of  the  stable  that  the  horse  was  unsafe  to  drive ;  whereupon 
the  foreman  said :  "  You  have  to  drive  him ;  and  if  any  accident 
happens,  we  (meaning  the  employer)  will  be  responsible. "  The 
pldntifif  continued  to  drive  the  horse,  and  whilst  so  doing,  sitting 
on  a  part  of  the  trolley  where  it  is  said  to  be  usual  and  not 
improper  for  the  driver  to  sit,  the  horse  kicked  out  and  broke  the 
plaintiffs  leg.  The  plaintiff  thereupon  sues  the  owner  of  the 
horse,  his  employer.  The  Judge  of  the  City  of  London  Court  did 
that  which  I  believe  many  County  Court  Judges  have  done  since  the 
decision  of  the  Court  of  Appeal  in  Thomas  v.  Quartermaiyie,  18  Q. 
B.  D.  685.  The  moment  it  was  proved  before  him  that  the  plain- 
tiff knew  the  horse  to  be  vicious,  but  continued  to  drive  him,  the 
Judge  said  it  was  useless  to  inquire  further,  for  that  alone  disen- 
titled him  to  recover,  upon  an  application  of  what  is  called  the 
maxim  of  volenti  Twn  fit  injuria.  The  Judge  acted  upon  the 
notion  that  that  was  the  effect  of  the  decision  of  the  majority  of 
the  Court  of  Appeal  in  Thomas  v.  Quartermaine  and  as  I  am  given 
to  understand,  many  County  Court  Judges  have  from  the  time  that 
case  was  reported  supposed  that  to  be  the  effect  of  it.  We  are  called 
upon  now  to  say  whether  that  is  the  true  effect  of  the  decision. 
My  own  position  in  the  matter  is  extremely  delicate,  because  I  dis- 
sented from  the  decision  of  the  rest  of  the  Court.  I  thought,  and 
after  mature  consideration  I  have  still  the  strongest  conviction, 
that,  if  that  is  really  the  effect  of  it,  the  decision  in  that  case  was 
absolutely  wrong ;  but  I  hope  I  have  loyalty  enough  to  say,  that,  if 
I  thought  that  the  decision  of  the  majority  of  the  Judges  there  did 
mean  what  the  County  Court  Judges  have  supposed  it  to  mean,  I 
should  at  once  bow  to  it.  The  question  we  have  now  to  consider 
is,  whether  that  was  the  real  meaning  of  the  majority,  —  whether 
the  judgment  was  not  to  a  less  rigid  effect  than  that,  and  whether 
it  does  not  leave  open  certain  questions  which  must  still  be  tried. 
The  first  question  here  is,  whether  this  case  is  within  the  Em- 
ployers' Liability  Act  at  all.  If  it  be  not,  then,  according 
[*  651]  to  *  the  old  law,  if  that  Act  had  not  existed  I  have  no 
doubt  this  plaintiff  could  not  have  recovered.  He  would 
have  been  a  servant  in  the  employment  of  the  master,  a  part  of 
whose  machinery  for  carrying  on  his  business   was  defective, — 


R.  C.  VOL.  XVII.]      SECT.  II. — LIABILITY  FOR  INJURIES  TO  SERVANT.     221 
Ko.  5.  — Tarmoatik  v.  Franoe,  19  Q.  B.  D.  661,  652. 

in  such  a  state  that  it  would  be  a  culpable  want  of  care  for  the 
safety  of  his  servants  on  the  part  of  the  employer  to  permit  a  neces- 
sary part  of  the  machinery  for  carrying  on  his  business  to  remain. 
But  that  was  no  concern  of  the  jury.  At  all  events  it  was  a 
thing  which  was  patent,  so  that  any  person  in  the  employ  could 
know  and  see  it.  The  horse  here  in  question  was  not  accidentally 
or  suddenly  vicious,  but  inherently  vicious,  and  known  to  be  so. 
Under  the  old  law  it  would  have  been  said :  "  You  "  (the  servant) 
"  have  entered  into  or  continued  in  this  employment  where  this 
thing  of  which  you  complain  is  open  and  palpable,  and  therefore  it 
is  an  implied  condition  of  your  contract  of  service  that  you  take 
upon  yourself  the  risk  of  accidents  therefrom,  and  consequently 
you  have  no  remedy  against  your  employer."  As  between  master 
and  servant,  that  was  the  way  the  immunity  from  liability  was 
always  stated.  The  maxim  volenti  nonjit  injuria  was  not  wanted 
as  between  master  and  servant  It  was  only  wanted,  if  at  all, 
where  no  such  relation  as  that  of  master  and  servant  existed. 
That  being  so,  then  comes  the  question,  What  is  to  be  the  effect 
of  the  Employers'  Liability  Act  ?  Does  that  Act  apply  to  the 
present  case? 

Now,  the  first  question  must  be,  whether  the  plaintiff  was  a 
"workman"  within  the  definition  given  in  the  Employers  and 
Workmen  Act,  1875.  I  cannot  entertain  a  doubt  upon  that.  He 
is  a  man  who  drives  a  horse  and  trolley  for  a  wharfinger.  We 
must  take  into  account  what  his  ordinary  duty  was.  He  has  to 
load  and  unload  the  trolley.  That  is  manual  labour.  His  duty 
may  be  compared  to  that  of  a  lighterman  who  conducts  a  barge  or 
lighter  up  and  down  the  river.  The  driving  the  horse  and  trolley 
and  the  navigating  of  the  lighter  form  the  easiest  part  of  the  work : 
his  real  labour,  that  which  tests  his  muscles  and  his  sinews,  is,  the 
loading  and  unloading  of  the  trolley  or  the  lighter. 

Then  comes  the  question  which  is  somewhat  more  difficult,  — 
Can  a  horse  be  considered  "plant"  within  sect.  1,  sub-sect.  1,  of  the 
Employers'  Liability  Act  ?  It  is  suggested  that  nothing 
that  is  *  animate  can  be  plant ;  that  is,  that  living  crea-  [•  652] 
tures  can  in  no  sense  be  considered  plant  Why  not  ?  In 
many  businesses  horses  and  carts,  wagons,  or  drays  seem  to  me  to 
form  the  most  material  part  of  the  plant :  they  are  the  materials 
or  instruments  which  the  employer  must  use  for  the  purpose  of 
carrying  on  his  business,  and  without  which  he  could  not  carry  it 


222  MASTER  AND  SERVANT. 


Ko.  5.  — Tamumth  v.  Fnmee,  19  Q.  B.  D.  652,  658. 


on  at  all.  The  principal  part  of  the  business  of  a  wharfinger  is 
conveying  goods  from  the  wharf  to  the  houses  or  shops  or  ware- 
houses of  the  consignees ;  and  for  this  purpose  he  must  use  horses 
and  carts  or  wagons.  They  are  all  necessary  for  the  carrying  on  of 
the  business.  It  cannot  for  a  moment  be  contended  that  the  carts 
and  wagons  are  not  "  plant."  Can  it  be  said  that  the  horses,  with- 
out which  the  carts  and  wagons  would  be  useless,  are  not?  If, 
then,  this  horse  was  part  of  the  plant,  it  had  a  defect,  that  is,  it 
had  the  constant  habit,  whether  in  a  stable  or  harnessed  to  a  trol- 
ley, of  kicking  whatever  was  near  it,  whether  a  human  being  or  a 
brick  wall.  In  short,  it  was  a  vicious  beast  that  could  not  be  man- 
aged or  controlled  by  the  most  careful  driver.  The  plant,  there- 
fore, was  defective.  There  was  no  evidence  that  the  master  (the 
defendant)  knew  of  the  defect.  But  the  foreman,  who  had  the 
management  of  the  stable  and  under  whose  directions  the  horse 
was  used,  knew  it ;  and,  after  having  repeatedly  been  told  that  it 
was  unsafe,  he  said  what  practically  amounted  to  this:  "I  care 
not  whether  the  horse  is  vicious  or  not ;  you  have  got  to  drive 
him ;  and  it  matters  nothing  to  you,  for,  if  you  meet  with  an  acci- 
dent, the  master  will  be  responsible."  The  foreman  probably  had 
no  power  to  bind  his  master  to  that ;  but  it  is  at  all  events  conclu- 
sive to  show  that  he  realised  the  fact  that  the  plant  was  defective : 
and  nothing  was  done  to  remedy  the  effect.  Was  this  negligence 
on  the  part  of  the  foreman  for  which  the  master  was  responsible  ? 
If  the  master  had  any  duty  at  all  to  take  care  of  his  workmen, 
then  allowing  this  imperfect  plant  to  continue  to  be  used  was 
surely  a  breach  of  that  duty.  But  it  is  said  he  may  have  had  that 
duty,  and  may  have  neglected  it  as  to  those  of  his  workmen  who 
did  not  know  of  or  were  not  afifected  by  the  particular  defect,  but 
not  as  to  the  plaintiff,  who,  knowing  of  the  defect,  still  continued 

to  drive  the  horse,  and  therefore  comes  within  the  maxim 
[*  653]    referred  to.     I  confess  that  has  always  *  seemed  to  me  to 

be  not  a  bad  way  of  illustrating  the  result ;  but  it  is,  to 
my  mind,  a  horrible  way  of  stating  the  duty,  to  say  that  a  master 
owes  no  duty  to  a  servant  who  knows  that  there  is  a  defect  in 
machinery,  and,  having  pointed  it  out  to  one  in  authority,  goes  on 
using  it  It  seems  cruel  and  unnatural,  and  in  my  view  utterly 
abominable.  It  may  be  that  the  breach  of  this  duty  gives  no  right 
of  action,  —  that  it  is  what  is  called  a  duty  of  imperfect  obligation. 
Although  the  employer  does  not  himself  know  of  the  defect,  if  he 


B.  a  VOL.  XVII.]     SECT.  n. — LIABIUTY  FOR  INJURIES  TO  SERVANT.     223 
Ho.  6.  —  Tannonth  v.  France,  19  Q.  B.  D.  653,  654. 

has  put  a  person  in  his  place  to  do  what  he  ought  himself  to  do, 
he  is  responsible  for  the  negligence  of  that  person. 

Before  the  Employers'  Liability  Act,  there  was  this  condition  in 
the  contract  of  hiring,  that,  if  there  was  a  defect  in  the  premises 
or  machinery  which  was  open  and  palpable,  whether  the  servant 
actually  knew  it  or  not,  he  accepted  the  employment  subject  to  the 
risk.  That  is  the  doctrine  which  is  embodied  in  the  maxim  volenti 
nonjit  injuria.  I  need  hardly  repeat  that  I  detest  the  attempt  to 
fetter  the  law  by  maxims.  They  are  almost  invariably  misleading : 
they  are  for  the  most  part  so  large  and  general  in  their  language 
that  they  always  include  something  which  really  is  not  intended 
to  be  included  in  them.  I  do  not  doubt  that  if  we  put  this  maxim 
into  plain  English,  part  of  it  is  true ;  that  is  to  say,  that  if  a  thing 
is  put  before  a  workman  and  he  is  told,  "  Now,  I  do  not  ask  you  to 
do  this  unless  you  like ;  but  I  will  give  you  more  wages  if  you  do. 
Tou  see  what  it  is.  There  is  a  rotten  ladder :  it  is  ten  to  one  that 
it  will  break  under  you ;  but,  if  you  choose  to  run  that  risk,  I  will 
give  you  higher  wages."  If  the  workman,  seeing  the  risk,  elects 
to  incur  it,  no  one  could  doubt  that  he  would  be  precluded  from  re- 
covering damages  against  his  employer  for  any  injury  he  might  sus- 
tain from  the  breaking  of  the  ladder.  The  same  result  would  follow 
if  the  injured  person  was  not  a  workman  for  hire.  But  does  the 
maxim  volenti  nan  Jit  injuria  go  this  length,  that  the  mere  fact 
of  the  workman  knowing  that  a  thing  is  dangerous,  and  yet  using 
it,  is  conclusive  to  show  that  he  voluntarily  incurs  the  risk  ?  The 
answer  to  that  depends  (so  far  as  this  Court  is  concerned)  upon 
whether  or  not  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685, 
has  so  decided.  I  *  never  entertained  a  doubt  that  the  [*  654] 
Employers'  Liability  Act  does  not  prevent  the  proper  appli- 
cation of  the  maxim  volenti  non  Jit  injuria ;  and  I  can  only  say, 
as  an  excuse  for  the  part  I  took  in  Thomas  v.  Quartermaine,  that 
that  doctrine  had  never  been  mentioned  on  the  argument  of  that 
case,  but  was  for  the  first  time  suggested  in  the  judgment  of  my 
Brother  Bowen.  For  myself,  I  cannot  help  thinking  that,  whether 
or  not  a  workman  has  voluntarily  agreed  to  incur  the  risk  of  de- 
fective machinery,  is  a  question  of  fact ;  and  that,  in  my  opinion, 
would  have  made  the  decision  in  Thomas  v.  Quartermaine  wrong; 
for  the  majority  of  the  Judges  there  took  upon  themselves  to  decide 
the  question  of  fact ;  whereas,  in  my  opinion,  they  had  no  right  to 
decide  it :  the  utmost  they  properly  could  do  was  to  send  it  back 


224  MASTER  AND   SERVANT. 

Ho.  5.  —  Tamurath  y.  Franoe,  19  Q.  B.  S.  664,  665.    . 

to  the  County  Court.  They  held  in  that  case  that  the  facts  were 
conclusive  to  show  that  the  plaintiff  did  voluntarily  —  in  the  sense 
in  which  they  understood  the  word  —  accept  the  risk.  This  re- 
vives the  old  diflSculty  as  to  contributory  negligence  in  cases  of 
railway  accidents.  Davey  v.  London  and  South  Western  By.  Co., 
11  Q.  B.  D.  213,  12  Q.  B.  D.  70.  I  have  always  protested  that  it 
is  not  for  the  Judge  to  say  whether  or  not  a  plaintiff  (or  the  de- 
ceased, in  the  case  of  death)  has  been  guilty  of  contributory  negli- 
gence :  he  (the  Judge)  has  no  right  to  hold  that  the  evidence  of  it 
is  conclusive :  it  should  be  left  for  the  decision  of  the  jury. 

Now  comes  the  other  question,  whether  the  Employers'  Liability 
Act  has  done  away  with  the  old  doctrine  that  a  workman  impliedly 
contracts  or  consents  to  incur  a  risk  which  is  a  visible  and  palpable 
one,  and  one  which,  therefore,  he  is  to  be  taken  to  know  of,  or,  if 
you  please,  which  he  does  know  of ;  or  whether  it  applies  only  to 
the  risks  incident  to  common  employment.  For  a  time  I  was 
under  the  impression  that  the  judgment  in  Thomas  v.  Quarter- 
maine  was  that  the  Act  only  absolved  the  employer  from  liability 
for  any  injury  resulting  from  the  negligence  of  a  fellow-workman. 
But,  upon  looking  at  the  matter  more  carefully,  I  do  not  think 
they  meant  to  say  that.  It  was  not  necessary  for  them  to  say  it, 
because  they  held  that  inasmuch  as  the  case  was  conclusively 
within  the  maxim  volenti  non  Jit  injuria,  no  other  question  arose 

in  the  case. 
[*  655]       *  Now,  let  us  go  back  to  the  statute.    We  must  look 

once  more  at  sect.  1,  sub-sect  1,  —  where,  after  the  com- 
mencement of  this  Act,  personal  injury  is  caused  to  a  workman 
"by  reason  of  any  defect  in  the  condition  of  the  ways,  works, 
machinery,  or  plant  connected  with  or  used  in  the  business  of  the 
employer,"  the  workman  shall  have  the  same  right  of  compensa- 
tion and  remedies  against  the  employer  as  if  the  workman  had  not 
been  a  workman  of  nor  in  the  service  of  the  employer  nor  engaged 
in  his  work."  Here,  I  say,  there  was  such  defect  and  consequent 
personal  injury.  Bead  with  this  sub-sects.  1  and  3  of  sect  2. 
Sub-sect.  1  provides  that  the  workman  shall  not  be  entitled 
under  this  Act  to  any  right  of  compensation  or  remedy  against  the 
employer  under  sub-sect  1  of  sect.  1,  "  unless  the  defect  therein 
mentioned  arose  from  or  had  not  been  remedied  owing  to  the 
negligence  of  the  employer,  or  of  some  person  in  the  service 
of  the  employer  and  intrusted  by  him  with  the  duty  of  see- 


R.  C.  VOL.  XVII.]     SECT.  II.— LIABILITY  FOR  INJURIES  TO  SERVANT.     225 
Ho.  5.  ^  Tarmoiitli  y.  Fraaoe,  19  Q.  B.  D.  655,  656. 

ing  that  the  ways,  works,  machinery,  or  plant  were  in  proper 
condition  ; "  and  sub-sect.  3,  that  "  In  any  case  where  the  workman 
knew  of  the  defect  or  negligence  [see  sub-sects.  2  and  3  of  sect.  1] 
which  caused  his  injury,  and  failed  within  a  reasonable  time  to  give 
or  cause  to  be  given  information  thereof  to  the  employer  or  some 
person  superior  to  himself  in  the  service  of  the  employer,  unless  he 
was  aware  that  the  employer  already  knew  of  the  said  defect  or 
negligence,"  the  workman  shall  in  like  manner  be  disentitled  to 
any  right  of  compensation  or  remedy.  Here  the  defect  arose  from 
the  negligence  of  a  person  in  the  service  of  the  employer  and 
intrusted  by  him  with  the  duty  of  seeing  that  the  plant  was  in 
proper  condition,  and  who  had  notice  of  the  defect,  and  failed  to 
take  steps  to  avert  injury.  To  my  mind  it  is  clear  that  this  was 
negligence  with  regard  to  the  safety  of  his  workman  for  which  the 
employer  is  responsible.  But  then,  it  is  said,  there  may  be  that 
which  prevents  the  workman  from  recovering  compensation  for  an 
injury  sustained  by  him  in  consequence  of  that  negligence.  The 
implied  contract  which  I  have  adverted  to  under  the  old  law  did 
prevent  it.  Where  there  is  no  duty,  it  is  said,  there  can  be  no 
negligence ;  or  in  other  words,  there  may  be  negligence  which  is 
not  actionable  negligence.  It  is  very  difficult  to  give  a 
*  sensible  construction  to  sub-sect.  3  of  sect  2.  The  work-  [*  656] 
man  who  discovers  the  defect  is  to  give  notice  of  it  or  he 
cannot  recover.  From  that  I  infer  that  if  he  does  give  notice,  and 
the  defect  is  not  remedied,  he  may  recover.  When  is  he  to  give 
notice  ?  And  what  if  the  defect  is  not  immediately  remedied  ?  Is 
the  workman  at  once  to  refuse  to  incur  the  risk  and  quit  the 
employ  ?  That  is  a  dilemma  to  which  it  never  could  have  been 
intended  to  reduce  the  workman.  I  cannot  help  thinking  that  it 
is  clearly  enacted  in  the  3rd  sub-sect,  of  sect  2,  that,  if  the  workman 
gives  notice  of  the  defect,  and  the  employer  fails  to  remedy  it;  the 
workman's  claim  for  compensation  is  valid,  unless  he  is  brought 
clearly  within  the  maxim  volenti  non  Jit  injuria.  Does  the 
judgment  of  Bowen,  L  J.,  in  Thomas  v.  Quartermaine,  —  for  that 
is  the  judgment  which  is  adopted  by  Fry,  L.  J.,  —  mean  to  say 
that  the  mere  knowledge  of  the  workman  and  his  continuing  in  the 
employ  is  fatal  to  him  ?  If  I  thought  the  judgment  in  Thomas  v. 
Quartermaine  really  did  mean  that,  whatever  my  own  private 
opinion  might  be,  I  should  unhesitatingly  bow  to  it  I  have  been 
trying  to  construe  that  judgment  fairly.  At  p.  697  of  the  report 
VOL.  xvn.  — 15 


226  MASTER  AND   SERVANT. 

Ho.  5.  —  Yarmoath  v.  France,  19  Q.  B.  D.  666,  667. 

the  learned  Judge,  after  referring  to  Winch  v.  Conservators  of  the 
Thames,  L.  E.  9  C.  P.  378,  and  Lax  v.  Corporation  of  Darlington, 
5  Ex.  D.  78,  says:  "The  defendant  in  such  circumstances  does 
not  discharge  his  legal  obligation  by  merely  affecting  the  plaintiff 
with  knowledge  of  a  danger  which  but  for  a  breach  of  duty  on  his 
own  part  would  not  exist  at  all.  But  where  the  danger  is  one 
incident  to  a  perfectly  lawful  use  of  his  own  premises,  neither 
contrary  to  statute  nor  common  law,  where  the  danger  is  visible 
and  the  risk  appreciated,  and  where  the  injured  person,  knowing  and 
appreciating  both  risk  and  danger,  voluntarily  encounters  them, 
there  is,  in  the  absence  of  further  acts  of  omission  or  commission, 
no  evidence  of  negligence  on  the  part  of  the  occupier  at  all.  Knowl- 
ecjge  is  not  a  conclusive  defence  in  itself.  But,  when  it  is  a  knowl- 
edge under  circumstances  that  leave  no  inference  open  but  one, 
viz.,  that  the  risk  has  been  voluntarily  encountered,  the  defence 
seems  to  me  complete."  I  must  confess  I  do  not  like 
[*  657]  *  that  way  of  putting  it.  I  think  there  is  a  duty,  though 
I  agree  that  there  is  no  actionable  breach  of  that  duty  if 
the  person  injured,  knowing  and  appreciating  the  danger,  volun- 
tarily elects  to  encounter  it.  In  the  preceding  page  the  learned 
Judge  says  :  "  It  is  no, doubt  true  that  the  knowledge  on  the  part  of 
the  injured  person  which  will  prevent  him  from  alleging  negli- 
gence against  the  occupier,  must  be  a  knowledge  under  such  cir- 
cumstances as  lead  necessarily  to  the  conclusion  that  the  whole 
risk  was  voluntarily  incurred.  The  maxim,  be  it  observed,  is  not 
'scienti  nonfit  injuria*  but  'volenti.'  There  may  be  a  perception 
of  the  existence  of  the  danger  without  appreciation  of  the  risk ;  as 
where  the  workman  is  of  imperfect  intelligence."  So  that  a  dull 
man  may  recover  damages  where  a  man  of  intelligence  may  not  I 
Both  know  of  the  danger,  but  one  is  imperfectly  informed  as  to  its 
nature  and  extent ! 

Taking  the  whole  of  that  judgment  together,  it  seems  to  me  to 
amount  to  this,  that  mere  knowledge  of  the  danger  will  not  do : 
there  must  be  an  assent  on  the  part  of  the  workman  to  accept  the 
risk,  with  a  full  appreciation  of  its  extent,  to  bring  the  workman 
within  the  maxim  volenti  nonfit  injuria.  If  so,  that  is  a  question 
of  fact.  Here,  the  Judge  of  the  Court  below  has  come  to  the  con- 
clusion that  the  moment  it  appeared  that  the  plaintiff  knew  and 
appreciated  the  danger,  and  did  not  at  once  quit  the  defendant's 
employ,  he  came  within  the  maxim,  and  was  therefore,  upon  the 


R.  C.  VOL.  XVII.]     SECT.  II. — ^LIABILITY  FOR  INJURIES  TO  SERVANT.     227 
Ho.  5.  —  Yarmouth  y.  Traaoe,  19  Q.  B,  D.  657,  658. 

authority  of  Thomas  v.  Quartermaine,  disentitled  to  recover.  He 
did  Dot  bring  his  mind  to  bear  upon  the  motives  which  induced  the 
plaintiff  to  act  as  he  did,  —  whether  he  relied  upon  the  foreman's 
statement  that  the  employer  would  be  responsible  in  case  of  an 
accident,  or  whether  he  was  influenced  by  the  fear  of  being  thrown 
out  of  employ  if  he  disobeyed  the  foreman's  orders.  All  that  was 
for  a  jury ;  and  the  Judge  ought  to  have  applied  his  mind  to  it.  I 
see  nothing  in  the  decison  in  Thomas  v.  Qtiartermaine  to  prevent 
the  plaintiff  from  recovering  in  this  case,  unless  the  circumstances 
were  such  as  to  warrant  a  jury  in  coming  to  the  conclusion  that  the 
plaintiff  freely  and  voluntarily,  with  full  knowledge  of  the  nature 
and  extent  of  the  risk  he  ran,  impliedly  agreed  to  incur  it. 

*  For  these  reasons,  I  think  this  case  ought  to  go  down  [*  658] 
for  a  new  trial. 

LiNDLEY,  L.  J.  —  The  first  question  is  whether  the  plaintiff  is  a 
"workman  "  within  the  meaning  of  the  Employers*  Liability  Act. 
In  my  opinion  he  is.  His  dtty  was,  not  only  to  drive,  but  also  to 
load  and  unload  the  goods  which  had  to  be  transported  on  the 
trolley  which  it  was  his  business  to  drive.  This  loading  and 
unloading  requires  bodily  labour  and  exertion,  and  brings  the 
plaintiff  within  the  statutory  definition  of  a  workman.  (38  &  39 
Vict.,  c.  90,  s.  10.) 

The  next  question  is  whether  the  horse  which  injured  the 
plaintiff  is  "  plant "  within  the  meaning  of  sect.  1,  sub-sect.  1,  of  the 
Act.  There  is  no  definition  of  "plant"  in  the  Act;  but,  in  its 
ordinary  sense,  it  includes  whatever  apparatus  is  used  by  a  business 
man  for  carrying  on  his  business,  —  not  his  stock-in-trade  which 
he  buys  or  makes  for  sale;  but  all  goods  and  chattels,  fixed  or 
movable,  live  or  dead,  which  he  keeps  for  permanent  employ- 
ment in  his  business.  See  Blake  v.  Shaw,  Johns.  732.  The 
word  "  defect,"  and  the  words  "  way  and  machinery,"  which 
occur  in  the  section,  throw  some  doubt  on  whether  "plant" 
can  include  horses ;  but  I  do  not  think  the  doubt  suflScient 
to  require  the  Court  to  hold  that  "plant"  cannot  include  horses, 
or  to  hold  that  "plant"  must  be  confined  to  inanimate  chat- 
tels. The  defendant  in  this  case  has  a  number  of  horses  for  use  in 
his  business  :  they  were  part  of  his  plant,  not  only  in  the  ordinary 
sense  of  the  word,  but  also,  in  my  opinion,  in  the  sense  in  which 
the  word  "  plant "  is  used  in  sect  1,  sub-sect.  1,  of  the  Employers' 
Liability  Act. 


228  MASTER  AND   SERVANT. 

Ho.  5.  —  Yannoath  y.  Fraaoe,  19  Q.  B.  D.  658,  669. 

The  next  question  is  whether  vice  in  a  horse  can  be  a  defect  in 
the  condition  of  plant.  Here,  again,  I  think  it  can.  I  take  defect 
to  include  anything  which  renders  the  plant,  &c.,  unfit  for  the  use 
for  which  it  is  intended,  when  used  in  a  reasonable  way  and  with 
reasonable  care;  and  if  a  horse  intended  for  drawing  trolleys  is 
from  any  cause  unfit  for  such  work,  and  a  person  is  driving  him 
with  reasonable  care,  and  is  injured  by  reason  of  the  unfitness  of 
the  horse  for  his  work,  such  person  may  be  properly  said  to  be 
injured  by  reason  of  a  defect  in  plant. 

Having  cleared  the  ground  thus  far,  it  is  necessary  to 
[*  659]  consider  *  whether  the  defect  "  arose  from  or  had  not  been 
discovered  or  remedied  owing  to  the  negligence  of  the  de- 
fendant or  of  some  person  in  his  service  and  intrusted  by  him  with 
the  duty  of  seeing  that  the  plant  was  in  proper  condition."  See  sect. 
2,  sub-sect.  1.  The  defect,  i.  e.,  the  unfitness  of  the  horse,  did  not 
arise  from  the  negligence  of  the  defendant,  nor,  in  truth,  of  any 
one  ;  nor  is  there  any  evidence  that  the  defendant  himself  knew  of 
such  defect.  But  his  stable-foreman  did  know  of  it,  and  he  never- 
theless took  no  steps  to  prevent  the  horse  from  being  used  for  a 
purpose  for  which  he  knew  it  was  unfit ;  for  he  told  the  plaintiff  to 
go  on  driving  it,  and  said,  if  anything  happened,  "  we,"  t.  e.,  his 
master,  "  must  take  the  consequence."  This,  I  think,  is  evidence 
of  negligence  on  the  part  of  the  stable-foreman  for  which  the 
defendant  can  properly  be  held  accountable,  unless  his  liability  is 
excluded  upon  the  ground  that  the  plaintiff  not  only  knew  of  the 
defect  but  also  took  the  risk  upon  himself. 

This  is  the  point  which  presents  the  greatest  diflSculty  in  the 
case,  and  which  requires  careful  consideration. 

It  must  be  taken  as  settled  by  Thomas  v.  Quartermaine,  18  Q. 
B.  D.  658,  at  p.  692,  (1)  that  the  words  at  the  end  of  sect  1  do 
no  more  than  "  remove  such  fetters  on  a  workman's  right  to  sue 
as  had  been  previously  held  to  arise  out  of  the  relation  of  master 
and  workman ; "  (2)  that  sect.  2,  sub-sect.  3,  does  not  extend  the 
master's  liability  beyond  that  imposed  by  sect  1,  and  sect  2, 
sub-sect  1 ;  (3)  that,  in  each  of  the  cases  specified  in  sect  1,  the 
maxim  volenti  non  fit  injuria  is  applicable,  and  that  if  a  work- 
man, knowing  and  appreciating  the  danger  and  the  risk,  elects 
volimtarily  to  encounter  them,  he  can  no  more  maintain  an 
action  founded  upon  the  statute  than  he  can  in  cases  to  which 
the  statute  has  no  application.      Those  principles  are  in  my 


R.  C.  VOL.  XVII.]      SECT.  U. — LIABILITY  FOR  INJURIES  TO  SERVANT.     229 
ITo.  5.  —  Tarmonth  y.  Pnncei  19  Q.  B.  D.  659,  660. 

opinion  perfectly  sound ;  but  the  proper  application  of  them  is  by 
no  means  always  easy.  The  question  whether  in  any  particular 
case  a  plaintiff  was  volens  or  nolens  is  a  question  of  fact,  and  not 
of  law.  BowEN,  L.  J. ,  was  careful  to  point  out  that  the  mere  fact 
that  the  plaintiff  knew  of  the  danger  and  yet  incurred  it  is  not 
conclusiva  He  says  (at  p.  696) :  "  The  maxim,  be  it  observed, 
is  not  scien-ti  non  Jit  injuria,  but  volenti  non  fit  injuria. "  He 
further  points  out  (at  p.  693)  that  there  may  be  cases 
*in  which  a  non-workman  who  knew  of  a  danger  and  [*660] 
incurred  it  might  nevertheless  maintain  an  action  against 
the  person  exposing  him  to  it  The  question  in  each  case  must 
be,  not  simply  whether  the  plaintiff  knew  of  the  risk,  but  whether 
the  circumstances  are  such  as  necessarily  to  lead  to  the  conclusion 
that  the  whole  risk  was  voluntarily  incurred  by  the  plaintiff 
(see  p.  696). 

The  learned  Judge  who  tried  the  present  case  thought  he  was 
bound  by  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685,  to  decide  it 
in  favour  of  the  defendant.  In  this  respect  I  differ  from  him. 
The  principles  laid  down  in  that  case  are  no  doubt  to  be  accepted 
and  followed ;  and,  if  I  may  say  so,  I  entirely  concur  in  them : 
but  it  is  not  in  my  opinion  correct  to  regard  that  case  as  deciding 
this.  The  facts  there  and  the  facts  here  are  materially  different. 
In  Thovias  v.  Quartermaine  the  facts  were  all  one  way:  there 
was  evidence  that  the  plaintiff  was  volens,  and  not  merely  sdens  ; 
he  was  not  even  directed  to  do  what  led  to  his  injury ;  he  did  it 
voluntarily,  of  his  own  accord;  there  was  no  evidence  that  the 
plaintiff  was  nolens  ;  the  plant  was  not  defective  or  dangerous  to 
persons  engaged  in  the  ordinary  course  of  their  employment ;  the 
plaintiff  had  never  complained  of  it;  the  injury  was  the  result  of 
a  pure  accident :  and  the  case  might  well  have  been  decided  on 
that  ground  alone.  In  the  present  case,  the  horse  was  vicious; 
the  plaintiff  was  constantly  complaining  of  it  to  the  defendant's 
foreman ;  the  foreman  told  the  plaintiff  to  go  on  driving  it,  and 
the  plaintiff  did  so  rather  than  run  the  risk  of  dismissal :  nor  is 
it  possible  to  regard  this  case  as  one  of  accident.  Under  these 
circumstances,  the  question  is  whether  the  plaintiff,  with  knowl- 
edge and  appreciation  of  both  the  risk  and  the  danger,  voluntarily 
took  the  risk  upon  himself.  The  plaintiff  was  not  engaged  to 
drive  vicious  horses;  and  the  conversation  with  the  foreman, 
though  not  evidence  against  the  defendant  of  any  promise  by  him 


230  MASTER  AND  SERVANT. 


Ho.  5.  —  Yarmouth  y.  Traaee,  19  Q.  B.  D.  660»  661. 


to  take  the  risk,  is  in  my  opinion  admissible  to  explain  the  con- 
duct of  the  plaintiff,  and  to  rebut  the  inference  that  he  voluntarily 
took  the  risk  upon  himself. 

To  hold  that  this  case  is  concluded  by  Thomas  v.  Quartermaine 
is,  I  think,  to  carry  that  case  further  than  is  warranted  by  the 
principle  on  which  it  was  decided :  it  is  to  do  the  very 
[*  661]  *  thing  BowEN,  L.  J. ,  so  carefully  pointed  out  the  danger 
of  doing,  viz. ,  to  treat  sciens  as  equivalent  to  volens.  The 
Act  cannot,  .1  think,  be  properly  construed  in  such  a  way  as  to 
protect  masters  who  knowingly  provide  defective  plant  for  their 
workmen,  and  who  seek  to  throw  the  risk  of  using  it  on  them  by 
putting  them  in  the  unpleasant  position  of  having  to  leave  their 
situations  or  submit  to  use  what  is  known  to  be  unfit  for  use. 
Thomas  v.  Quartermaine  is  no  authority  for  any  such  construc- 
tion of  the  statute. 

If  in  any  case  it  can  be  shown  as  a  fact  that  a  workman  agreed 
to  incur  a  particular  danger,  or  voluntarily  exposed  himself  to  it, 
and  was  thereby  injured,  he  cannot  hold  his  master  liable.  But, 
in  the  cases  mentioned  in  the  Act,  a  workman  who  never  in  fact 
engaged  to  incur  a  particular  danger,  but  who  finds  himself 
exposed  to  it  and  complains  of  it,  cannot  in  my  opinion  be  held 
as  a  matter  of  law  to  have  impliedly  agreed  to  incur  that  danger, 
or  to  have  voluntarily  incurred  it  because  he  does  not  refuse  to 
face  it ;  nor  can  it  in  my  opinion  be  held  that  there  is  no  case  to 
submit  to  a  jury  on  the  question  whether  he  has  agreed  to  incur  it 
or  has  voluntarily  incurred  it  or  not,  simply  because,  though  he 
protested,  he  went  on  as  before.  The  facts  of  each  particular  case 
must  be  ascertained  and  considered.  If  nothing  more  is  proved 
than  that  the  workman  saw  danger,  reported  it,  but,  on  being 
told  to  go  on,  went  on  as  before  in  order  to  avoid  dismissal,  a  jury 
may  in  my  opinion  properly  find  that  he  had  not  agreed  to  take 
the  risk  and  had  not  acted  voluntarily  in  the  sense  of  having 
taken  the  risk  upon  himself.  Fear  of  dismissal,  rather  than  vol- 
untary action,  might  properly  be  inferred.  A  fortiori  might  the 
jury  properly  come  to  such  a  conclusion  if  it  was  proved  that  the 
workman  was  told  by  his  superintendent  not  to  mind,  and  that  if 
any  accident  happened  the  employer  must  make  it  good.  Such  an 
additional  circumstance  would  go  far  to  negative  the  inference  that 
the  complaining  workman  took  the  risk  upon  himself. 

I  cannot  construe  the  Act  as  shutting  out  such  considerations 


B.  C.  VOL.  XVn.]      SECT.  n. — PLIABILITY  FOR  INJURIES  TO  SERVANT.     231 
Ho.  5.  —  Yannoath  y.  France,  19  Q.  B.  D.  661,  668. 


as  these;  and,   as   the  learned  Judge  did  not  think  himself  at 
liberty  to  entertain  them,  and  decided  in  favour  of  the 
defendant  *upon   what  I   consider  a  misconception    of  [*662] 
Thomas  v.  Quartermaine  I  think  there  ought  to  be  a  new 
trial. 

LoPES,  L.  J.  —  This  is  an  important  and  difl&cult  case ;  and  I 
regret  that  I  am  unable  to  agree  with  the  decision  of  the  rest  of 
the  Court. 

The  action  was  brought  under  the  Employers'  Liability  Act, 
1880 ;  but  the  Judge  in  the  Court  below  has  not  decided  the  case 
on  any  question  arising  under  that  Act,  apart  from  the  law  as  it 
existed  before  the  passing  of  that  Act;  but  has  given  judgment 
for  the  defendant  on  the  ground  that  the  plaintiff  knew  all  the 
facts,  was  well  acquainted  with  the  character  of  the  horse,  and 
voluntarily  encountered  the  risk,  and  that  therefore  there  was  no 
evidence  of  negligence  arising  from  any  breach  of  duty  which  the 
defendant  owed  the  plaintiff  entitling  the  plaintiff  to  recover. 

It  is  to  be  observed  that  sect.  1,  sub-sect  1,  and  sect.  2,  sub- 
sect  1,  of  the  Act,  — which  must  be  read  together,  — effect  no 
change  in  the  law  as  regards  the  liability  of  the  employer,  except 
in  certain  specified  cases  by  identifying  a  "  person  in  the  service 
of  the  employer  and  intrusted  by  him  with  the  duty  of  seeing  that 
the  ways,  works,  machinery,  or  plant  are  in  proper  condition,* 
with  the  employer,  and  taking  him  out  of  the  category  of  fellow- 
servants,  and  rendering  the  employer  responsible  for  his  negli- 
gence. 

There  is  nothing  here  to  affect  the  doctrine  of  volenti  non  Jit 
injuria,  if  it  applies ;  nor  is  that  doctrine  touched  by  anything  in 
sect  1,  sub-sect  3 :  but  of  that  presently.  The  doctrine  of 
volenti  non  Jit  injuria  is  exhaustively  dealt  with  in  the  cases  of 
Woodley  v.  Metropolitan  Railway  Co. ,  2  Ex.  D.  384,  and  Thomas 
V.  Quartermaine,  18  Q.  B.  D.  685.  Both  these  cases  were  in  the 
Court  of  Appeal ;  and  the  judgments  of  the  majority  of  the  Court 
are  not  only  binding  on  us  sitting  as  a  Divisional  Court,  but  are 
binding  on  the  Court  of  Appeal  itself.  The  question,  therefore, 
is,  whether  tlie  present  case  is  governed  by  these  cases  or  either  of 
them. 

To  determine  this  it  is  essential  to  state  shortly  the  facts  of  the 
present  case:  The  plaintiff  was  the  driver  of  a  trolley,  and  at 
the  time  of  the  accident  had  been  about  four  years  in  the  employ 


232  MASTER  AND   SERVANT. 

Ho.  5.  —  YarmontiL  y.  France,  19  Q.  B.  D.  662,  668. 

of  the  defendant,  who  was  a  wharfinger.  The  accident 
[*  663]  happened  in  •  November,  1886.  In  the  previous  August  a 
horse  had  been  purchased  by  the  defendant  which  was  by 
Tomlin,  the  defendant's  stable-foreman,  assigned  to  the  plaintiff 
to  drive  in  his  trolley.  The  plaintiflf's  duty  was  to  clean,  take 
care  of,  and  drive  the  horse  in  his  trolley,  and  to  go  with  his 
trolley  where  ordered  by  Tomlin,  who  had  superintendence  of  the 
horses,  and  to  load  and  unload  as  instructed.  From  the  first,  the 
horse  was  vicious  and  troublesome,  —  so  vicious  and  troublesome 
that  it  was  said  to  have  broken  down  a  brick  wall,  and  generally 
to  be  a  kicker  and  a  jibber.  The  plaintiff  had  constantly  com- 
plained of  this  horse  to  Tomlin,  and  had  been  told  by  him  to  go 
on  driving  the  horse,  and  that  his  employer  would  be  responsible 
for  anything  the  horse  did.  The  plaintiff,  though  daily,  as  he 
said,  complaining,  continued  in  the  defendant's  service,  driving 
the  horse.  On  the  12th  of  November,  the  plaintiff  was  driving 
the  horse,  sitting  on  the  trolley  with  his  legs  hanging  down 
behind  the  horse.  There  was  no  other  place  on  the  trolley  pro- 
vided for  him  where  he  could  sit  to  drive.  The  horse  kicked 
violently,  broke  the  plaintiff's  leg,  and  injured  him  severely.  In 
these  circumstances,  he  brings  his  action  against  the  defendant 
The  case  came  on  to  be  tried  in  the  City  of  London  Court  without 
a  jury;  and  the  Judge,  considering  it  undistinguishable  from 
Thomas  v.  Quartermaine,  and  that  the  doctrine  of  volenti  non  fit 
injuria  applied,  stopped  the  case,  and  gave  judgment  for  the 
defendant 

Is  this  a  case  where  the  employer  is  absolved  from  liability 
because  the  plaintiff  voluntarily  exposed  himself  to  the  risk, 
within  the  principle  contained  in  the  cases  to  which  I  have 
referred  ? 

In  Woodley  v.  Metropolitan  District  Bailway  Co,  the  plaintiff 
was  a  workman  not  in  the  employment  of  the  defendants,  but  in 
that  of  a  contractor  employed  by  them.  He  had  to  work  in  a 
dark  tunnel,  rendered  dangerous  by  trains  constantly  passing. 
After  he  had  been  working  for  a  fortnight,  he  was  injured  by  a 
passing  train.  The  jury  found  that  the  defendants  were  negligent, 
and  gave  a  verdict  for  the  plaintiff  for  £300.  A  rule  to  set  aside 
this  verdict  was  discharged ;  and,  on  appeal,  it  was  held  by  the 
majority  of  the  Court  of  Appeal  that  the  plaintiff,  having  con- 
tinued   in    his    employment    with    full   knowledge,    could    not 


R.  C.  VOL.  XVn.]     SECT.  U. — ^LIABILITY  FOR  INJURIES  TO  SERVANT.     233 
Ho.  5.  — Tamumth  y.  France,  19  Q.  B.  D.  664,  666. 

•make  the  defendants  liable  for  an  injury  to  which  he  [*664] 
voluntarily  exposed  himself. 

The  only  distinctions  that  I  can  find  between  that  case  and  the 
present  are  the  following:  Woodley  was  hired  to  do  dangerous 
work,  and  knew  its  dangerous  character  and  attendant  risks. 
Yarmouth  was  hired  to  do  work  not  dangerous,  viz.,  amongst 
other  work,  to  drive  horses,  which  most  frequently  are  manage- 
able. The  horse  which  did  the  mischief  was  intrusted  to  his  care 
after  he  entered  on  the  employment,  and  it  was  then  first  he 
learned  its  propensities;  but  long  after  he  had  been  made  aware  of 
its  vicious  nature  he  continued  to  drive  it.  There  was  no  evi- 
dence that  Woodley  ever  made  any  complaint  to  his  employer. 
Yarmouth,  on  the  contrary,  complained,  but  continued  in  the 
employment.  Having  regard  to  the  judgments  of  the  majority  of 
the  Court,  I  do  not  think  that  what  I  have  suggested  furnishes 
any  substantial  ground  for  distinction.  Cockburn,  Ch.  J. ,  says : 
"  With  a  full  knowledge  of  the  danger,  he  (Woodley)  continued 
in  the  employment,  and  had  been  working  in  the  tunnel  for  a 
fortnight  when  the  accident  happened.  If  he  becomes  aware  of 
the  danger  which  has  been  concealed  from  him,  and  which  he  had 
not  the  means  of  becoming  acquainted  with  before  he  entered  on 
the  employment,  or  of  the  want  of  the  necessary  means  to  prevent 
mischief,  his  proper  course  is  to  quit  the  employment  If  he 
continues  in  it,  he  is  in  the  same  position  as  though  he  had 
accepted  it  with  a  full  knowledge  of  its  danger  in  the  first 
instance,  and  must  be  taken  to  waive  his  right  to  call  upon  the 
employer  to  do  what  is  necessary  for  his  protection,  or,  in  the 
alternative,  to  quit  the  service.  If  he  continues  to  take  the 
benefit  of  the  employment,  he  must  take  it  subject  to  its  disad- 
vantages. If  a  man  chooses  to  accept  the  employment,  or  to 
continue  in  it,  with  a  knowledge  of  the  danger,  he  must  abide  the 
consequences,  so  far  as  any  claim  to  compensation  against  the 
employer  is  concerned.  Morally  speaking,  those  who  employ 
men  on  dangerous  work,  without  doing  all  in  their  power  to 
obviate  the  danger,  are  highly  reprehensible,  as  I  certainly  think 
the  company  were  in  the  present  instance.  The  workman  who 
depends  on  his  employment  for  the  bread  of  himself  and  his 
family  is  thus  tempted  to  incur  risks  to  which  as  a  matter 
of  •  humanity  he  ought  not  to  be  exposed.  But,  looking  at  [*  665] 
the  matter  in  a  legal  point  of  view,  if  a  man,  for  the  sake 


234  MASTER  AND   SERVANT. 


Ho.  5.  —  Yannouth  v.  Pnnoe,  19  Q.  B.  D.  665,  666. 


of  the  employment,  takes  it  or  continues  in  it  with  a  knowledge 
of  its  risks,  he  must  trust  to  himself  to  keep  clear  of  injury.* 
This  judgment,  in  which  the  majority  of  the  Court  concurred, 
covers  the  present  case,  and,  suhject  to  the  provisions  of  the 
Employers'  Liability  Act,  disposes  of  the  only  distinction  which 
I  am  able  to  suggest. 

The  point  that  Yarmouth  was  not  engaged  to  drive  a  dangerous 
horse  is  met  by  the  fact  that  he  continued  in  the  service  after  he 
knew  the  horse  was  dangerous ;  and  his  constant  complaints  may 
be  regarded  as  evidence  of  his  thorough  appreciation  of  the  risk  he 
was  incurring  and  of  his  willingness  to  incur  that  risk  rather  than 
relinquish  his  employment.  After  complaining  he  remains  in  the 
service  for  a  long  time,  knowing  the  risk  and  knowing  that  no 
steps  had  been  taken  to  prevent  its  continuance.  This  is  more 
consistent  with  his  acquiescence  in  a  disregard  of  his  complaints, 
and  with  a  willingness  to  incur  the  risk,  than  with  the  contrary 
view. 

In  Griffiths  v.  London  and  St.  Katharine  Docks  Co.  ,12  Q.  B.  D. 
493 ;  on  appeal,  13  Q.  B.  D.  259,  it  was  held  that,  in  an  action 
brought  by  a  servant  against  his  master  for  personal  injury  result- 
ing from  the  unsafe  state  of  the  premises  upon  which  the  servant 
was  employed,  the  statement  of  claim  must  allege  not  only  that 
the  master  knew,  but  that  the  servant  was  ignorant,  of  the  danger. 
The  present  Master  of  the  Rolls  (13  Q.  B.  D.,  at  p.  260)  said: 
**  If  the  danger  is  one  which  was  known  to  the  master  and  not  to 
the  servant,  the  knowledge  of  the  master  and  the  want  of  knowl- 
edge of  the  servant  make  together  a  cause  of  action ;  and,  as  it  is 
necessary  that  these  two  things  should  exist  in  order  to  form  a 
primd  facie  cause  of  action,  it  is  necessary  that  they  should  be 
shown  to  exist  in  the  statement  of  claim.  "  And  Bowen,  L.  J. ,  in 
the  same  case  says  (at  p.  261) :  "  Both  these  allegations  are 
material,  because  without  them  there  is  no  cause  of  action. "  It 
is  therefore  abundantly  clear  that,  as  the  danger  was  known  to 
the  servant  (the  plaintifif)>  he  could  not  recover  before  the 
Employers'  Liability  Act. 

It  is  said,  however,  that  Woodley  v.  Metropolitan  Dis- 
[*  666]  trict  Railway  *  Go, ,   Griffiths  v.   London  and  St.  Katha- 
rine Docks  Co.,  and  other  cases,  do  not  govern  the  case 
before  the  Court      It  is  said  that  the  law  has  been  altered  in 
cases  to  which  the  Employers'   Liability  Act  applies;  and  I 


B.  a  VOL.  XVII.]    SECT.  II. — LIABILITY  FOR  INJURIES  TO  SERVANT.     235 
Ho.  5.  — Taxnumth  ▼.  Pranoe,  19  Q.  B.  D.  686,  667. 

assume,  for  the  purposes  of  this  case,  that  the  Employers'  Liabil- 
ity Act  applies  to  the  case  of  this  plaintiff.  It  is  suggested  that 
there  is  something  in  the  Employers'  Liability  Act  which  quali- 
fies the  defence  of  volenti  non  fit  injuria,  —  a  defence  which 
would  have  been  available  for  the  master  before  the  Act  It  is 
said  that  a  workman  who  can  bring  himself  within  one  of  the  five 
clauses  of  sect.  1  of  the  Act  is  not  to  be  treated  as  volens,  although 
he  thoroughly  appreciated  the  risk  he  was  incurring,  complained 
of  it,  and  for  a  long  time  continued  in  the  service,  preferring  the 
risk  to  quitting  the  service;  and  this,  although  he  would  have 
been  treated  as  volens  before  the  Act. 

I  cannot  accede  to  this  view.  It  is  opposed  to  the  case  of 
Thomas  v.  Quartermaine,  The  third  sub-section  of  sect  2  is 
relied  upon.  Bowen,  L.  J.,  in  Thomas  v.  Quartermaine,  deals 
with  that  clause.  He  says  (at  p.  693) :  **  The  object  of  that 
clause  is  to  limit  the  employer's  liability,  not  to  enlarge  it" 
I  read  it  thus :  Although,  under  sect  1,  the  workman,  with  cer- 
tain exceptions,  is  to  be  placed  in  a  position  as  advantageous 
as,  but  not  better  than,  the  rest  of  the  world  who  use  the  mas- 
ter's premises  in  his  business,  the  workman  is  not  to  have  this 
advantage  if,  knowing  of  any  defect  or  negligence,  he  does  not 
inform  the  employer,  as  provided  in  that  section.  The  object 
of  this  is  to  give  the  employer  the  opportunity  of  remedying 
the  mischief.  In  fact,  the  workman  is  not  to  have  the  advan- 
tages of  the  Act  unless  he  performs  the  condition  precedent  of 
making  the  master  aware  of  his  cause  of  complaint  This  leaves 
the  employer's  defence  of  volenti  non  fit  injuria  untouched  by  the 
Act,  if  he  can  prove  it.  It  is  said  that  such  a  construction  would 
make  the  Act  nearly  a  dead  letter.  But  this  is  not  the  case.  In 
all  cases  where  the  workman  is  ignorant  of  the  defect  or  negli- 
gence, and  is  injured  by  a  fellow  workman's  negligence, 
"  common  employment "  *  is  no  longer  a  defence  for  the  [*  667] 
master  in  the  cases  specified  in  sect  1,  as  it  would  have 
been  before  the  passing  of  the  Act  It  is  said  that  the  object  of 
the  Act  was  to  exclude  in  the  specified  cases  the  two  legal 
inferences  which  were  before  the  Act  to  be  drawn  against  a  work- 
man from  the  mere  fact  of  his  employment;  viz.,  first,  the  infer- 
ence that  he  accepted  the  risk  of  his  fellow  servants'  negligence; 
and,  secondly,  the  inference  that  he  accepted  the  risks  which 
were  involved  in  the  execution  of  his  employer's  orders,  if  he  in 


236  MASTER  AND  SEBVANT. 

Ho.  5.  — Yarmonth  v.  Franoe,  19  Q.  B.  D.  667,  668. 

fact  ran  them,  rather  than  refuse  to  do  so,  and  thereby  incur  the 
risk  of  dismissal.  I  agree  that  it  was  the  object  of  the  Act  to 
exclude  the  first  inference,  and  in  the  specified  cases  to  destroy 
the  defence  of  "  common  employment "  But  what  authority 
there  is  for  the  contention  that  it  was  intended  to  extinguish  the 
second  inference  I  fail  to  be  able  to  discover. 

The  true  construction  of  the  third  sub-section  of  sect  2,  in  my 
opinion,  is,  that  whereas  before  the  Act  knowledge  would  have 
disentitled  the  workman  to  recover,  now  knowledge  in  the  speci- 
fied cases  is  no  longer  to  create  a  disability,  provided  the  workman 
gives  information;  but  if,  after  giving  information,  he  continues 
in  the  employment,  knowing  the  danger  he  is  incurring,  the  same 
inference  arises  as  heretofore,  viz.,  the  inference  that  he  volun- 
tarily runs  the  risk,  and  any  evidence  of  negligence  arising  from 
any  breach  of  duty  on  the  part  of  the  employer  is  by  the  work- 
man's conduct  displaced. 

I  agree  with  the  decision  of  the  majority  of  the  Court  in  Thomas 
V.  Quartermaine,  and  with  the  construction  they  place  on  the 
Employers'  Liability  Act  That  Act  only  removes  such  obstacles 
to  a  workman's  right  to  sue  as  had  been  held  to  arise  from  the 
relation  of  master  and  servant.  It  leaves  the  doctrine  of  volenti 
non  Jit  injuria  untouched.  Now,  as  before  the  Act,  to  use  the 
words  of  BowEN,  L.  J.  (18  Q.  B.  D.,  at  p.  699),  "  one  man  cannot 
sue  another  in  respect  of  a  danger  or  risk  not  unlawful  in  itself 
that  was  visible,  apparent,  and  voluntarily  encountered  by  the 
injured  person. "  The  present  case  seems  a  stronger  case  of  volun- 
tary exposure  to  danger  than  that  of  Thomas  v.  Quartermaine,  In 
the  latter  case  there  is  little  if  any  evidence  that  Thomas  knew  of 
or  appreciated  the  danger ;  but,  in  the  present  case,  the  evidence 
is  strong  to  show  that  Yarmouth  thoroughly  understood 
[*  668]  •  the  danger  to  which  he  was  exposing  himself.  With  a 
knowledge  of  the  danger,  though  complaining,  he  con- 
tinues in  the  service,  indicating  thereby  a  willingness  to  incur  the 
risk  rather  than  give  up  his  employment 

In  my  opinion,  the  case  of  Thomas  v.  Quartermaine  decides 
that  every  defence  (except  in  specified  cases  the  defence  of  "  com- 
mon employment")  is  still  open  to  the  employer;  thus  leaving 
the  law,  except  in  the  case  of  "  common  employment "  in  the 
specified  instances  as  it  was  laid  down  in  Woodley  v.  Metropoli- 
tan District  By.  Co,     It  was  for  the  plaintiff  here  to  make  out 


R.  C.  I^OL.  XVII.]     SECT.  11. — LIABILITY  FOR  INJURIES  TO  SERVANT.     237 
Hot.  4,  5.  —  Badddey  ▼.  Earl  Granville ;  Tamumth  y.  Pranoe.  —  Hotea. 

that  the  defendant  w^s  negligent  towards  the  plaintiff  in  conduct- 
ing himself  as  admittedly  he  did.  I  can  see  no  evidence  of  any 
n^ligence  arising  from  any  breach  of  duty  which  the  defendant 
owed  the  plaintiff. 

The  plaintiff  deposed  that,  when  he  complained,  Tomlin  told 
him  to  go  on  driving  the  horse,  and  that  his  employer  would  be 
responsible.  There  is  no  evidence  that  Tomlin  was  authorised  by 
the  defendant  to  make  this  statement  The  Judge  below  disre- 
garded this  evidence,  and  I  think  rightly :  it  was  not  admissible 
as  evidence  against  the  master  (the  defendant).  I  am  unable  to 
see  any  substantial  difference  between  the  present  case  and  the 
cases  to  which  I  have  referred ;  and  I  think  the  Judge  was  right 
in  giving  judgment  for  the  defendant 

I  am  also  of  opinion  that  the  Judge  was  right  in  holding  that 
the  plaintiff  was  a  person  to  whom  the  Employers  and  Workmen 
Act,  1875,  applied,  and  therefore  in  that  respect  entitled  to  sue 
under  the  Employers'  Liability  Act,  1880.  The  case  of  Cook  v. 
North  Metropolitan  Tramways  Co, ,  18  Q.  B.  D.  683,  is  an  author- 
ity for  this. 

Holding  as  I  do,  it  is  unnecessary  to  decide  whether  a  horse 
is  **  plant "  within  sect  1,  sub -sect  1 ;  for,  assuming  it  in  the 
plaintiff's  favour,  in  my  opinion  he  cannot  recover.  I  wish  to  be 
understood  as  not  expressing  any  opinion  on  this. 

The  appeal  will  therefore  be  allowed.  Appeal  allowed. 

ENGLISH  NOTES. 

One  elaboration  of  the  maxim  volenti  non  fit  injuria  culminated  in 
England  in  the  doctrine  of  a  common  employment.  This  doctrine 
appears  to  have  sprung  into  existence  in  1838  with  the  decision  in 
Priestley  v.  Fowler  (1837),  3  M.  &  W.  1,  7  L.  J.  Ex.  42;  and  it  has 
since  been  developed  in  England,  and  by  the  House  of  Lords  in  appeals 
from  Scotland  in  the  following  cases :  —  Bartonshill  Coal  Co.  v.  Reid 
(H.  L.  1858),  3  Macq.  316,  1  Paterson  Sc.  App.  785;  Hall  v.  Johnson 
^x.  Ch.  1865),  3  H.  &  C.  589,  34  L.  J.  Ex.  222,  11  Jur.  (N.  S.) 
180;  Wilson  v.  Merry  (1868),  L.  E.  1  H.  L.  Sc.  326,  6  Macph. 
H.  L.  84,  2  Paterson  Sc.  App.  1597 ;  Charles  v.  Taylor  (C.  A.  1878), 
3  C.  P.  D.  492,  38  L.  T.  773,  27  W.  E.  32.  The  rule,  however,  will 
probably  soon  be  abolished.  It  has  already  met  with  general  condem- 
nation in  the  House  of  Commons,  and  when  the  avowedly  tentative 
measure,  the  Workmen's  Compensation  Act,  1897  (60  &  61  Vict.,  c. 
37),  has  been  extended  to  include  all  classes  of  workmen,  this  refine- 
ment will  cease  to  exist,  or  have  little  practical  importance. 


238  MASTER  JlSD  SEBYANT. 

Hot.  4,  5.  —  Baddeley  y.  Earl  Grasville ;  Yumonth  y.  Traaoe.  —  Votes. 

That  knowledge  by  the  servant  of  the  risk  of  danger  is  not  a  conclu- 
sive limit  of  the  master's  liability  is  supported  by  Smith  v.  Baker 
(H.  L.),  1891,  A.  C.  325,  60  L.  J.  Q.  B.  683,  65  L.  T.  467.  In  that 
case  the  contrast  between  knowledge  and  consent  is  illustrated  by  such 
examples  as  the  danger  undertaken  by  a  sailor  in  mounting  the  rig- 
ging, or  by  a  workman  in  a  calling  necessarily  injurious  to  health, 
and  the  cases  where  a  workman  does  not  press  a  complaint  for  fear  of 
dismissal. 

It  is  to  be  observed  that  although  the  doctrine  of  a  common  employ- 
ment has  been  modified  by  the  Employers'  Liability  Act,  1880  (43  & 
44  Vict.,  c.  42),  that  statute  has  not  varied  the  effect  of  the  maxim 
volenti  non  fit  injuria  so  far  as  it  involves  the  undertaking  by  the  ser- 
vant of  the  ordinary  risks  inherent  in  his  particular  employment. 
Thomas  v.  Quartei^aine  (C.  A.  1887),  18  Q.  B.  D.  685,  56  L.  J.  Q. 
B.  340,  57  L.  T.  537,  35  W.  E.  555.  The  actual  decision  in  Thomas 
V.  Quartermaine  has  been  adversely  criticised  in  Smith  v.  Baker 
(supra),  but  the  particular  view  adverted  to  in  this  paragraph  does  not 
seem  to  be  disapproved. 

Under  the  Employers'  Liability  Act,  1880,  a  notice  of  the  injury  was 
a  condition  precedent  to  the  right  of  action  under  the  statute.  Keen  v. 
Millwall  Dock  Co.  (C.  A.  1882),  8  Q.  B.  D.  482,  51  L.  J.  Q.  B.  277, 
30  W.  R.  503.  And  the  notice  had  to  be  in  writing.  Moyle  v.  Jenkins 
(1881),  8  Q.  B.  D.  116,  51  L.  J.  Q.  B.  112,  46  L.  T.  472,  30  W.  R. 
324;  CaHer  v.  Drysdale  (1883),  12  Q.  B.  D.  91,  32  W.  R.  171. 
The  cause  of  the  injury  might  be  stated  in  general  terms:  Stone  v. 
Hyde  (1882),  9  Q.  B.  D.  76,  51  L.  J.  Q.  B,  452,  46  L.  T.  421,  30  W. 
R.  816  ;  Clarkson  v.  Musgrave  (1882),  9  Q.  B.  D.  386,  51  L.  J.  Q.  B. 
525,  31  W.  R.  47.  The  omission  of  the  date  when  the  injury  happened 
does  not  necessarily  render  the  notice  invalid,  unless  the  defendant  has 
been  prejudiced  thereby,  or  the  omission  was  with  a  view  to  mislead. 
Carter  v.  Drysdale,  supra. 

Where  a  defective  notice  had  been  given,  the  High  Court  refused  a 
certioraH  to  remove  proceedings  from  the  County  Court,  on  the  ground 
that  the  object  of  the  Legislature  in  passing  the  Employers*  Liability 
Act,  1880,  was  to  provide  less  costly  and  more  speedy  remedies.  MuU' 
day  V.  Thames  Ironworks  &  Shipping  Co.  (1882),  10  Q.  B.  D.  59,  52 
L.  J.  Q.  B.  119,  49  L.  T.  351. 

AMERICAN  NOTES. 
The  general  doctrine  of  complaint  and  promise  or  expectation  of  repair  is 
found  in  Patterson  v.  Pittsburgh,  5"c.  R.  Co.,  76  Penn.  State,  389;  18  Am. 
Rep.  412;  Greene  v.  Minneapolis  ^  St.  Louis  Ry,  Co.,  31  Minnesota,  248;  47 
Am.  Rep.  785 ;  GulfH,  §-  5.  A.  Ry,  Co,  v.  Drevo,  59  Texas,  10;  46  Am.  Rep. 
261;  Missouri  F.  Co,  v.  Abend,  107  Illinois,  44;  47  Am.  Rep.  425;  Flynn  v. 


B.  C.  VOL.  XVn.]     SECT.  II. — PLIABILITY  FOR  INJURIES  TO  SERVANT.     239 

Hof.  4,  5. — Baddeley  v.  Earl  Graayille ;  Tarmonth  v.  France.  —  Fotes. 

Kansas,  i^c.  R.  Co.,  78  Missouri,  195 ;  47  Am.  Rep.  99 ;  Ford  v.  Fitchburg  R. 
Co.,  110  Massachusetts,  240 ;  14  Am.  Rep.  598 ;  Kroy  v.  Chicago,  Sfc.  R,  Co., 
38  Iowa,  357 ;  Colorado,  Sfc,  R.  Co.  v.  Ogden,  3  Colorado,  499 ;  Buzzell  v.  Manuf, 
Co.,  48  Maine,  113;  Hawley  v.  N.  Y.,  ^c.  R.  Co.,  82  New  York,  370.  These 
authorities  declare  that  such  promise  or  expectation  does  not  absolutely  absolve 
the  servant  from  the  charge  of  contributory  negligence  in  continuing  in  the 
work,  but  simply  makes  it  a  question  of  fact  for  a  jury.  As  was  said  in  Dis- 
trict of  Columbia  v.  McElligott,  117  United  States,  633,  the  District  "  certainly 
would  not  be  liable  if  the  danger  which  the  plaintiff  apprehended  from  the 
beginning  was  so  imminent  or  manifest  as  to  prevent  a  reasonably  prudent 
man  from  risking  it  upon  a  promise  or  assurance  by  the  proper  authority  that 
the  cause  from  which  the  peril  arose  would  be  removed."  See  Beach  on  Con- 
tributory Negligence,  sect.  140 ;  Thompson  on  Negligence,  p.  1009 ;  Wood  on 
Master  and  Servant,  sects.  336, 352, 359 ;  Indianapolis  §•  St.  L.  Ry.  Co.  v.  Watson, 
114  Indiana,  20 ;  6  Am.  St.  Rep.  578 ;  Gulf,  ^c.  Ry.  Co.  v.  Donnelly,  70  Texas, 
371;  8  Am.  St.  Rep.  608;  Stephenson  v.  Duncan,  73  Wisconsin,  404;  9  Am. 
St.  Rep.  806;  Brovmfield  v.  Hughes,  128  Penn.  State,  194;  15  Am.  St.  Rep. 
667;  Roddy  v.  Missouri  Pacific  Ry.  Co.,  104  Missouri,  234 ;  24  Am.  St.  Rep. 
333;  Meador  v.  Lake  Shore,  fi-c.  Ry.  Co.,  138  Indiana,  290;  46  Am.  St. 
Rep.  384 ;  Cheeney  v.  Ocean  S.  S.  Co.,  92  Georgia,  726;  44  Am.  St.  Rep.  113; 
Roux  V.  Blodgett  Sf  D,  L.  Co.,  85  Michigan,  519 ;  13  Lawyers*  Rep.  Anno- 
tated, 728.  A  very  noticeable  recent  decision  is  in  Murch  v.  Thomas  Wilson*s 
Sons  tf  Co.,  168  Massachusetts,  408,  where  a  pilot  was  provided  with  a  stat^ 
room,  but  was  told  that  he  might  warm  himself  and  rest  in  a  small  deck-house 
in  which  there  was  a  stove  not  connected  with  the  outer  air  by  any  pipe,  and 
burning  a  patent  fuel,  and  he  was  told  to  leave  the  door  open  and  there  would 
be  no  danger  from  the  fumes,  and  he  went  to  sleep  there  with  the  door  partly 
open,  and  it  was  afterwards  closed  by  a  fellow-servant,  and  the  pilot  was  in- 
jured  by  asphyxiation ;  the  defendant  was  held  not  liable,  as  the  risk  was 
assumed ;  and  in  Erdman  v.  Illinois  Steel  Co.,  95  Wisconsin,  6 ;  60  Am.  St.  Rep. 
66,  it  is  held  that  the  rule  of  complaint  andt  promise  does  not  apply  where  the 
risk  is  so  obvious,  immediate,  and  constant  that  serious  bodily  injury  is  likely 
to  occur  from  a  continuance  of  the  work.  Citing  Ford  v.  Fitchburg  R.  Co., 
110  Massachusetts,  240 ;  14  Am.  Rep.  598;  Hough  v.  Railway  Co.,  100  United 
States,  214 ;  Chicago,  Sfc.  Co.  v.  Van  Dam,  149  Illinois,  337 ;  Rothenberger  v.. 
North  W.,  iBfc.  Co.,  57  Minnesota,  461 ;  Indianapolis,  ^c.  R.  Co.  v.  Watson,  114 
Indiana,  20 ;  5  Am.  St.  Rep.  578. 

The  American  rule  on  the  subject  of  the  servant's  knowledge  of  danger  has 
been  thus  stated  by  the  present  writer  (Domestic  Relations,  p.  131)  :  "  If  the 
danger  is  as  well  known  or  as  manifest  to  the  servant  as  to  the  master,  the 
servant  enters  or  continues  in  the  employment  at  his  own  risk.  Baylor  v. 
Delaioare,  j-c.  R.  Co.,  11  Vroom  (New  Jersey),  23;  29  Am.  Rep.  208  and 
note,  210;  Ladd  v.  New  Bedford  R.  Co.,  119  Massachusetts,  412 ;  20  Am.  Rep. 
331.  But  see  St.  Louvt,  ^c.  R.  Co.  v.  Irwin,  37  Kansas,  701 ;  1  Am.  St.  Rep. 
266;  Penn.  Co.  v.  Sears,  136  Indiana,  460. 

"  The  cases  of  unfenced  machinery,  low  railway  bridges,  and  coupling  cars 
are  examples. 

*.'  If  the  servant  continues  in  the  employment  after  learning  of  the  iucom- 


240  MASTER  AND   SERVANT. 

Fob.  4,  6.  —  Baddeley  v.  Earl  Oranville ;  Tannoath  v.  France.  —  Hotei. 

petency  of  his  co-servant,  he  does  so  at  his  own  risk.  Davis  v.  Detroit  jr  M.  R, 
Co.,  20  Michigan,  105 ;  4  Am.  Rep.  364. 

**  So  if  he  continues  in  the  employment  after  learning  of  its  danger  or  of 
the  defectiveness  of  any  of  the  machinery  or  appliances.  Greenleaf  v.  Cent. 
R.  Co,,  29  Iowa,  14 ;  4  Am.  Rep.  181. 

<<  Subject  to  the  master's  duty  to  exercise  reasonable  care  in  the  selection 
and  retention  of  co-servants,  the  master  is  not  liable  to  the  servant  for  any 
injury  occasioned  to  him  by  the  negligence  or  want  of  skill  of  a  co-servant. 
Farwell  v.  B.  §•  W.  R.  Co,,  4  Metcalf  (Mass.),  49;  FeUham  v.  England,  L.  R. 

2  Q.  B.  33. 

<^  A  general  exception  to  the  last  two  rules  is  where  the  servant  notifies  the 
master  of  the  incompetency  or  the  defectiveness,  and  the  master  promises  to 
discharge  the  incompetent  servant  or  repair  the  defective  machinery  or  appli- 
ances, or  the  servant  has  a  reasonable  expectation  that  he  will  do  so,  if  the 
servant  continues  in  the  employment  it  is  a  question  of  fact  whether  he  was 
negligent  in  so  doing.  Davis  v.  Detroit  Sf  M,  R,  Co,,  20  Michigan,  105 ;  4  Am. 
Rep.   364 ;    Coombs  v.  New  Bedford  Cordage  Co,,   102  Massachusetts,   572 ; 

3  Am.  Rep.  506 ;  Clark  v.  Holmes,  7  Hurl.  &  N.  937  ;  Hough  v.  Ry,  Co,,  100 
United  States,  213.  But  he  must  not  continue  longer  than  a  reasonable  time 
after  the  unfulfilled  promise.  Eureka  Co.  v.  Bass,  81  Alabama^  200 ;  60  Am. 
Rep.  152 ;  Gulf,  Sfc,  Ry.  Co,  v.  BraiUford,  79  Texas,  619 ;  23  Am.  St.  Rep. 
877  and  cases  in  note,  387.  In  Illinois  Steel  Co,  v.  Mann,  170  Illinois,  200,  it 
was  held,  three  Judges  dissenting,  that  such  a  reasonable  time  means  only  such 
a  time  as  is  sufficient  to  enable  the  master  to  remove  the  defect  or  make  the 
repairs."    See  Erdtnan  v.  Illinois  Steel  Co,,  95  Wisconsin,  6. 

If  the  time  for  performance  of  the  master's  promise  to  correct  the  defect 
has  expired,  the  servant  remains  at  his  own  risk.  Counsell  v.  Hall,  145  Mas- 
sachusetts, 468  ;  Gulf  ^c.  R,  Co,  v.  Donnelly,  70  Texas,  371;  District  of  Column 
biav.  McElligott,  117  United  States,  621;  Atchison,  ^c.  R,  Co,  v.  McKee,  37 
Kansas,  592 ;  Sioux  City,  Sfc.  R,  Co,  v.  Finlayson,  16  Nebraska,  578 ;  Thorpe 
V.  Missouri  P,  Ry,  Co.,  89  Missouri,  650 ;  Marsh  v.  Chickering,  101  New  York, 
396;  Crutchfield  v.  R.  j-  /.  R.  Co,  78  North  Carolina,  300 :  Belair  v.  C,  ^  N. 
W,  R,  Co,,  43  Iowa,  662  ;  Louisville,  ^c.  R.  Co.  v.  Stutts,  105  Alabama,  368 ; 
53  Am.  St.  Rep.  127. 

A  seaman  on  a  voyage  is  bound  to  obey  the  orders  of  the  master  at  all 
hazards,  and  consequently  in  so  doing  is  not  chargeable  with  contributory 
negligence  where  he  exposes  himself  to  a  manifest  risk  and  danger  and  receives 
injury  in  consequence  of  the  defective  condition  of  the  ship's  appliances. 
Thompson  v.  Herman,  47  Wisconsin,  602;  32  Am.  Rep.  784.  So  of  a  locomo- 
tive engineer  who  remains  at  his  post  in  danger  when  he  might  have  left  it 
and  escaped.  Penn,  R,  Co,  v.  Roney,  89  Indiana,  456 ;  46  Am.  Rep.  173 ;  Cottrill 
V.  Chicago,  Sfc.  R.  Co.,  47  Wisconsin,  634  ;  32  Am.  Rep.  796 ;  Dicksonv,  Omaha, 
ire.  R.  Co.,  124  Missouri,  140;  25  Lawyers'  Rep.  Annotated,  321.  But  this 
doctrine  is  not  applicable  to  a  master  and  the  cook  of  a  steam-tug.  Williams  v. 
Churchill,  137  Massachusetts,  243 ;  50  Am.  Rep.  304. 

Mr.  Wood  says  (Master  and  Servant,  sect.  397)  :  "  Where  the  statute  imposes 
a  duty  upon  the  master,  a  neglect  to  comply  therewith  is  negligence  per  se^ 
and  for  injuries  resulting  therefrom  he  is  liable,  unless  the  servant  can  be 


R.  C.  VOL.  XVn.]     SECT.  II. — LIABILITY  FOR  INJURIES  TO  SERVANT.     241 

Vof.  4,  6.  —  Bsddeley  v.  Earl  GrauTille ;  Tarmontli  v.  Fnnoe.  —  Fotei. 

fairly  treated  as  having  assumed  the  risk."  Cayzer  v.  Taylor,  10  Gray  (Mass.)^ 
274  (omission  of  safety  plug  upon  steam-engine).  <<  But  a  servant  is  not  ex- 
cused from  the  charge  of  contributory  negligence  in  working  in  the  face  of  a 
manifest  and  avoidable  risk  or  danger  simply  because  the  fault  of  the  master 
grows  out  of  the  omission  of  a  statutory  duty.  The  ultimate  question  is  as  to 
the  servant's  knowledge  of  the  risk  and  his  continuance  in  the  service  without 
protest." 

The  general  American  rule,  founded  on  Priestly  v.  Fowler,  3  M.  &  W.  1, 
and  Feltham  v.  England,  L.  R.  2  Q.  B.  33,  is  that  subject  to  the  master's  duty 
to  use  reasonable  care  in  selecting  and  retaining  his  servants,  each  servant 
takes  upon  himself  the  risk  of  injury  arising  wholly  from  the  carelessness  or 
incompetence  or  wantonness  of  his  fellow-servants.  The  leading  case  on  this 
subject  is  Farwell  v.  Boston,  Sfc,  R,  Co.,  4  Metcalf  (Mass.),  49  ;  38  Am.  Deo. 
339  (Shaw,  Ch.  J.);  although  the  same  doctrine  had  been  a  little  earlier  an- 
nounced in  South  Carolina,  in  the  case  of  Murray  v.  So.  Car.  R.  Co.,  1  Mo* 
Mullan,  385;  36  Am.  Dec.  268.  This  doctrine  was  adopted  in  Randall  v. 
Baltimore  (f  O.  R.  Co.,  109  United  States,  484.  But  although  this  is  the 
general  doctrine,  it  has  not  always  been  unanimously  accepted  where  it  pre- 
vails, and  there  are  grave  and  increasing  objections  to  it  in  many  quarters. 

A  practical  relaxation  of  this  rule  has  been  made  in  more  recent  days  by 
construction  of  the  phrase  '*  fellow-servants."  Most  Courts  still  hold  to  the 
definition  given  in  the  leading  case  of  Laning  v.  N.  Y.  Cent.  R.  Co.,  49  New 
York,  521 ;  10  Am.  Rep.  417 :  **  A  master  is  not  liable  to  those  in  his  employ 
for  injuries  resulting  from  the  negligence,  carelessness,  or  misconduct  of  a 
fellow-servant  engaged  in  the  same  general  business.  Nor  is  the  liability  of 
the  master  enlarged  where  the  servant  who  has  sustained  an  injury  is  of  a 
grade  of  the  service  inferior  to  that  of  the  servant  or  agent  whose  negligence, 
carelessness,  or  misconduct  has  caused  the  injury,  if  the  services  of  each,  in 
his  particular  labor,  are  directed  to  the  same  general  end.  And  though  the 
inferior  in  grade  is  subject  to  the  direction  or  control  of  the  superior  whose 
act  or  omission  has  caused  the  injury,  the  rule  is  the  same.  Nor  is  it  neces- 
sary to  exempt  the  master  from  liability,  that  the  sufferer  and  the  one  who 
causes  the  injury  should  be  at  the  time  engaged  in  the  same  particular  work. 
If  they  are  in  the  employment  of  the  same  master,  engaged  in  the  same  com- 
mon work,  and  performing  duties  and  services  for  the  same  general  purposes, 
the  master  is  not  liable." 

The  same  principle  is  found  in  Chicago  jr  AUon  R.  Co.  v.  Murphy,  53  Illi- 
nois, 336;  5  Am.  Rep.  48  ;  Lawlrrr  v.  Androscoggin  R.  Co.,  62  Maine,  463 ;  16 
Am.  Rep.  492.  The  test  is  commonly  held  to  be  subjection  to  the  same  gen- 
eral control,  coupled  with  an  engagement  in  the  same  common  pursuit.  If 
there  is  a  natural  connection  between  the  different  classes  of  service,  such  as 
necessarily  brings  the  servants  into  contact  with  each  other  in  the  prosecution 
of  their  work,  they  are  co-servants,  however  dissimilar  their  occupations  may 
be.  Thus  a  railway  brakeman  and  a  train  despatcher,  a  railway  fireman  and 
a  telegraph  operator  and  •  the  conductor,  and  a  fireman  and  a  locomotive 
engineer,  have  been  held  co-servants.  Robertson  v.  Terre  Haute,  fl-c.  R.  Co.,  78 
Indiana,  77;  41  Am.  Rep.  552;  Slater  v.  JemU,  85  New  York,  61 ;  39  Am. 

VOL.  XVII.  — 16 


242  MASTER   AND   SERVANT. 

]lo0.  4,  5.  —  Baddeley  v.  Earl  Graavilla ;  Tarmoath  v.  Fnnoe.  —  Hotel. 

Rep.  627  ;  Tierney  v.  Minneapolis,  Sfc,  R.  Co,,  33  Minnesota,  311 ;  53  Am.  Rep. 
35;  Darriganv,  N.  Y.,  Sfc.  R.  Co.y  52  Connecticut,  285;  52  Am.  Rep.  590; 
Chicago,  ffc.  R,  Co.  v.  RosSy  112  United  States,  377  ;  Railroad  Co.  v.  Baugh, 
149  United  States,  368.  And  that  the  master  is  not  liable  even  if  the  negli- 
gence is  that  of  a  foreman  or  superintendent,  is  held  in  Malone  y.  Hathaxoayy 
64  New  York,  5;  21  Am.  Rep.  573  ;  Brothers  v.  CartteVy  52  Missouri,  373;  14 
Am.  Rep.  424  ;  Peterson  v.  Whiiebreast  Mining  Co,,  50  Iowa,  673 ;  32  Am.  Rep. 
143,  and  many  other  cases,  following  Wigmore  v.  Jay,  5  Ex.  354  ;  Wilwn  v. 
Merry,  L.  R.  1  Sc.  App.  326. 

In  a  considerable  number  of  jurisdictions  it  is  held  that  the  rule  is  inappli- 
cable where  the  one  servant's  duties  are  entirely  distinct  and  dissimilar  from 
and  independent  of  the  other,  and  especially  where  the  one  is  subject  to  the  con- 
trol of  the  other,  whose  carelessness  effects  the  injury.  Hankins  v.  N.  Y.,  ^c. 
R.  Co.y  142  New  York,  416  (train  despatcher  and  brakeman)  ;  Little  Rock,  Sfc. 
R.  Co,  V.  Barry,  58  Arkansas,  198 ;  25  Lawyers'  Rep.  Annotated,  386  (with 
an  elaborate  note)  ;  Taylor  v.  Georgia  M,  Co.y  99  Georgia,  512 ;  59  Am.  St. 
Rep.  239  (engineer  and  brakeman) ;  Chicago,  Sfc.  R,  Co.  v.  Moranda,  93  Illi- 
nois, 302  ;  34  Am.  Rep.  168  (track  repairer  and  fireman)  ;  Moon's  AdmW  v. 
Richmond,  Sfc.  Co.,  78  Virginia,  745 ;  49  Am.  Rep.  401 ;  Chicago,  Sfc.  Ry.  Co, 
V.  Stoanson,  16  Nebraska,  254  ;  49  Am.  Rep.  718  ;  Caluo  v.  Charlotte,  fl-c.  R, 
Co.y  23  South  Carolina,  526;  55  Am.  Rep.  28;  Kirk  v.  Atlanta,  Src.  R.  Co., 
94  North  Carolina,  625 ;  55  Am.  Rep.  621 ;  Madden^ s  AdnCr  v.  Chesapeake,  Sfc. 
Ry.  Co.,  28  West  Virginia,  610;  57  Am.  Rep.  695  ;  Little  Miami  R,  Co.  v. 
Stpvens,  20  Ohio,  415 ;  St,  Louis,  Sfc.  Ry.  Co,  v.  Weaver,  35  Kansas,  412;  57 
Am.  Rep.  176.  So  a  *'  chain-gang  boss  "  is  not  a  fellow-servant  of  a  chain- 
gang  prisoner,  and  the  employer  of  the  "  boss  "  is  responsible  for  wrongful 
and  negligent  acts  of  the  latter  by  which  a  prisoner  is  deprived  of  his  life. 
Boswell  V.  Bamhart,  96  Georgia,  521.  So  a  conductor  of  a  railway  train  is  not 
a  fellow-servant  with  the  train  hands.  Chicago,  Sfc.  R.  Co.  v.  Ross,  112  United 
States,  377.  In  this  case  Mr.  Justice  Field  observed,  after  a  review  of  the 
leading  English  cases  :  ^'  But  notwithstanding  the  number  and  weight  of  such 
decisions,  there  are  in  this  country  many  adjudications  of  Courts  of  great 
learning,  restricting  the  exemption  to  cases  where  the  fellow-servants  are 
engaged  in  the  same  department,  and  act  under  the  same  immediate  direc- 
tion ;  and  holding  that  within  the  reason  and  principles  of  the  doctrine,  only 
such  servants  can  be  considered  as  engaged  in  the  same  common  employment." 
**  There  is  in  our  judgment  a  clear  distinction  to  be  made,  in  their  relation  to 
the  common  principid,  between  servants  of  a  corporation  exercising  no  super- 
vision over  others  engaged  with  them  in  the  same  employment,  and  agents  of 
the  corporation  clothed  with  the  control  and  management  of  a  distinct  de- 
partment, in  which  their  duty  is  entirely  that  of  direction  and  superintend- 
ence." But  to  mark  how  far  from  unanimity  and  how  unsettled  the  judicial 
mind  in  this  country  is  upon  this  subject,  it  should  be  noted  that  in  this  very 
authoritative  case  four  Justices  dissented. 

In  the  rather  recent  case  of  Anderson  v.  Bennett,  16  Oregon,  515  ;  8  Am« 
St.  Rep.  311,  the  Court  said,  after  citing  the  Farwell  case  :  **  The  latter  has 
been  usually  regarded  as  the  leading  case  in  which  the  doctrine  of  fellow- 


B.  C.  VOL.  XYH.]      SECT.  H. — LIABILITY  FOB  INJTJBIES  TO  SERVANT.     243 

Hot.  4,  5.  —  Baddeloy  v.  Earl  Qranville ;  Tarmonth  v.  France.  —  Fotei. 

servants  was  first  clearly  enunciated,  and  its  principles  ingrafted  into  our  law. 
The  rule  as  there  stated  by  the  eminent  Judge  who  delivered  the  opinion  is  to 
the  effect  that  aU  servants  of  the  same  master  whose  labors  tend  to  the  accom- 
plishment of  the  same  general  purpose,  and  engaged  in  a  common  employ- 
ment, are  fellow-servants,  irrespective  of  their  grade  or  rank.  The  rule  thus 
declared  was  generally  accepted  by  the  Courts  of  the  country  as  a  correct  ex- 
position of  the  law,  and  it  has  been  approved  and  adopted  by  the  highest  Court 
in  £ngland.  Within  the  principle  of  that  rule,  all  servants,  no  matter  what 
position  they  occupied  toward  each  other,  or  how  different  and  separated  the 
departments  of  duty  in  which  they  were  employed,  whether  operating  a  mine 
or  factory  or  railway,  were  deemed  to  be  fellow-servants." 

'*  But  in  the  progress  of  society  since  the  decision  in  Farwell  v.  Boston  (f  W. 
R,  Co.,  stqn-a,  such  has  been  the  increase  in  the  number  and  magnitude  of 
the  business  operations  of  the  country,  the  great  army  of  servants  required 
to  be  employed  to  perform  their  work,  and  the  necessity  of  placing  over  them, 
and  in  charge  of  these  vast  operations,  other  servants  to  direct  and  control 
their  labor,  that  there  has  been  wrought  in  the  judicial  mind  the  conviction 
that  the  general  application  of  that  rule  in  such  cases  had  often  worked  mani- 
fest injustice  and  hardship.  So  that  the  latter  current  of  judicial  decision, 
and  it  may  be  added  of  legislative  action,  indicates  a  marked  departure  from 
that  rule,  and  a  disposition  to  so  limit  and  restrict  it  as  shall  make  the  master 
answerable  for  his  just  share  of  responsibility  to  his  servant  for  injuries  sus- 
tained in  his  employment.  And  although  it  may  be  said  that  the  weight  of 
adjudged  cases  is,  that  the  relative  grade  or  rank  of  the  servant  does  not 
alter  the  relation  of  fellow-servants,  yet  this  principle  has  not  alwajrs  com- 
manded universal  recognition,  but  it  has  been  criticised  and  denied  and  a 
contrary  view  asserted  by  the  Courts  of  several  of  the  States,  and  at  least 
materially  limited  if  not  recognized  and  adopted  by  the  Supreme  Court  of 
the  United  States." 

A  very  excellent  review  of  the  leading  cases  may  be  found  in  Parker  v. 
Hannibal,  Sfc.  R.  Co.,  109  Missouri,  362;  18  Lawyers'  Rep.  Annotated,  802, 
where  opinions  were  written  by  five  Judges,  and  three  Judges  dissented  from 
the  conclusion  of  the  majority.  One  of  the  Judges  observed :  «  The  liability 
being  admitted  in  case  a  third  person  is  injured,  but  denied  in  case  a  ser- 
vant is  injured  by  another  servant,  the  denial  in  the  later  case  must  stand 
on  some  peculiar  relation  between  master  and  servant.  This  peculiar  rela- 
tion cannot  be  simply  the  fact  that  the  servants  are  in  a  position  where  one 
may  be  injured  by  the  negligence  of  another,  for  third  persons  often  occupy 
the  same  position,  as  where  they  become  passengers.  The  real  and  only  point 
of  distinction,  it  seems  to  us,  arises  out  of  the  fact  that  the  servants  are  so 
associated  and  related  in  the  performance  of  their  work  that  they  can  observe 
and  influence  each  other's  conduct,  and  report  any  delinquency  to  a  correct- 
ing power.  To  say  a  clerk  engaged  in  an  oflfice  making  out  pay  rolls  for  a 
railroad  company  is  a  fellow-servant,  within  the  rule  of  exemption,  with  those 
engaged  in  operating  trains,  is  out  of  all  reason.  Guided  by  the  real  reason 
of  the  rule,  it  seems  to  us  it  should  be  applied,  and  applied  only,  in  those 
cases  where  the  servant  injured  and  the  one  inflicting  the  injuries  are  so  as- 


244  MASTER  AND   SEBVANT. 


Hm.  4,  6.  —  Baddeley  v.  Earl  Graavilla ;  Tamumth  v.  Franoe.  —  Votes. 

sociated  and  related  in  their  work  that  they  can  observQ  and  have  an  influ- 
ence over  each  other's  conduct,  and  can  report  delinquencies  to  a  common 
correcting  power  or  head.  In  short,  they  should  be  fellow-servants  in  fact, 
and  not  simply  in  dialectic  theory.  If  in  separate  and  distinct  departments, 
80  that  the  circumstances  just  stated  do  not  and  cannot  exist,  then  they  are 
not  fellow-servants  within  any  just  or  fair  meaning  of  the  rule.  This  con- 
clusion, though  not  in  strict  accord  with  the  majority  of  the  adjudged  cases, 
is,  it  is  believed,  within  the  true  and  only  reason  for  the  rule,  and  has  the  sup- 
port of  many  cases,  some  of  which  go  much  further  than  has  been  indicated." 

To  the  aforesaid  general  rule  on  this  point  there  are  two  well-recognized 
exceptions  arising  out  of  delegation  of  the  master's  authority.  Ftr«r,  where 
the  delegation  is  necessary,  as  in  the  case  of  corporations,  which  can  act  only 
by  agents  of  different  grades.  There  the  corporation  is  liable  for  negligence  or 
want  of  proper  care  in  respect  to  such  acts  and  duties  as  it  is  required  to  dis- 
charge and  perform  as  master  or  principal,  without  regard  to  the  rank  or  title 
of  the  agent  intrusted  with  the  performance.  As  to  such  acts  the  agent 
occupies  the  place  of  the  corporation,  and  the  latter  is  deemed  present,  and 
consequently  liable  for  the  manner  of  performance.  Laning  v.  New  York 
Cent,  R.  Co.,  49  New  York,  529  ;  10  Am.  Rep.  417 ;  Chicago,  ft-c.  R,  Co.  v. 
RoBSy  112  United  States,  377 ;  Flike  v.  Boston  $•  A.  R.  Co.,  63  New  York, 
549  ;  13  Am.  Rep.  545  (train  despatcher  sending  out  train  with  insufficient 
number  of  brakemen) ;  Dobbin  v.  Richmond,  (fc.  R.  Co.,  81  North  Carolina, 
446;  31  Am.  Rep.  512  (engineer  and  conductor  of  a  gravel  train,  with  author- 
ity to  employ  and  discharge  hands) ;  Harper  v.  Ind.  fl"  St.  Louis  R.  Co.,  47 
Missouri,  567 ;  4  Am.  Rep.  353 ;  Mullan  v.  Phila.,  ^c.  S.  Co.,  78  Penn.  State, 
25 ;  21  Am.  Rep.  2 ;  Louisville,  grc.  R.  Co.  v.  Collins,  2  Duvall  (Kentucky), 
114.  Second,  where  the  delegation  is  voluntary  and  includes  the  power  of 
employing  and  discharging  servants,  and  thus  the  agent  becomes  alter  ego. 
Corcoran  v.  Holbrook,  59  New  York,  517 ;  17  Am.  Rep.  369  ;  Mitchell  y.  Rob- 
inson, 80  Indiana,  281 ;  41  Am.  Rep.  812.  But  contra,  Holden  v.  FUchburg  R, 
Co.,  129  Massachusetts,  268  ;  37  Am.  Rep.  343 ;  Lehigh  VaUey  Coal  Co.  v. 
Jones,  86  Penn.  State,  434. 

The  foregoing  rules  and  exceptions  have  been  generally  followed  down  to 
the  present  time,  with  a  marked  tendency  to  construction  in  favor  of  the  ser- 
vant. A  considerable  number  of  States  have  enacted  statutes  enlarging  the 
liability  of  the  master,  and  the  Courts  are  inclined,  in  the  absence  of  statute, 
to  relax  the  rigor  of  the  doctrine  of  the  old  English  and  American  cases  first 
above  mentioned.  Further  elaboration  would  take  us  too  far  afield  from  the 
doctrine  of  the  principal  Rule  in  question,  but  the  student  can  find  the  sub- 
ject very  intelligently  and  elaborately  treated  in  the  recent  text-books.  Bus- 
well  on  Law  of  Personal  Injury,  and  Bailey  on  Personal  Injuries  relating  to 
Master  and  Servant.  The  enormous  mass  of  adjudication  on  this  particular 
point  may  be  appreciated  from  the  fact  that  the  latter  author  employs  some 
two  hundred  and  fifty  pages  in  a  condensation  and  classification  by  States  of 
the  principal  decisions. 

At  an  early  day  the  curious  vagary  was  entertained  in  Massachusetts 
{Albro  V.  JaquvUe,  4  Gray,  99)  that  a  servant  was  not  liable  for  his  careless- 


B.  C.  VOL.  XVn.]      SECT.  in.  —  DETERMINATION  OP  SERVICE.  245 

Ho.  6.  — CaiTol  V.  Bird,  3  Esp.  801.  —  BiOe. 

ness  toward  a  fellow-servant,  but  was  never  held  elsewhere,  and  has  been  oor« 
rected.  Osborne  v.  Morgan,  130  Massachusetts,  102 ;  39  Am.  Rep.  437 ;  Hinds  v. 
Overacker,  66  Indiana,  547 ;  32  Am.  Rep.  114 ;  Steinhauser  v.  Spraul,  127  Mis- 
souri, 541 ;  27  Lawyers'  Rep.  Annotated,  441 ;  Atkins  v.  Field,  89  Maine, 
281 ;  Griffiths  v.  Wolfram,  22  Minnesota,  185. 

The  exemption  of  the  master  from  liability  for  injury  to  one  servant  by 
the  act  of  another  was  whoUy  denied  in  Wisconsin  at  an  early  day,  in  Cham- 
berlain V.  Milwaukee,  (fc.  R.  Co,,  11  Wisconsin,  238,  on  sentimental  grounds, 
citing  the  Scotch  case  of  Dixon  v.  Rankin,  as  commending  itself  <<  to  every 
right-thinking  mind  and  every  right-feeling  heart;"  but  this  was  overruled  a 
little  later.  This  seems  to  be  the  sole  decision  holding  the  master  liable  at 
all  hazards,  but  it  is  noteworthy  that  in  New  York  Chief  Judge  Church  and 
Rapallo,  J.y  were  in  opposition  to  the  universally  prevalent  doctrine.  (They 
dissented  in  Malone  v.  Hathaway,  supra*) 


Section  III.  —  JRyikts  after  Determination  of  Service. 

No.  6.— CAEEOL  v.  BIKD. 
(N.  p.  1800.) 

No.  7.— GAEDENEE  v.  SLADE. 
(Q.  B.  1849.) 

RULE. 

An  action  will  not  lie  against  a  master  for  not  giving  a 
servant  a  character. 

The  answer  of  a  master  to  inquiries  concerning  the 
character  of  his  former  servant  is  a  privileged  communi- 
cation. 

A  statement  volunteered  by  a  former  master  correcting 
statements  in  a  character  previously  given  is  also  a  privi- 
leged communication. 

Carrol  v.  Bird. 

8  Esp.  201,  202  (6  R.  R.  824). 

Master  and  Servant  —  Character. 

An  action  will  not  lie  at  the  suit  of  the  servant  against  his  master  for  [201] 
not  giving  him  a  character. 

This  was  an  action  on  the  case. 

The  declaration  stated,  that  the  plaintiff's  wife  having  been 


246  MASTER  AND   SERVANT. 

Ho.  7.  —  OardAiier  v.  Slade  and  Wife,  18  L.  J.  Q.  B.  384,  885. 

retained  by  the  defendant  as  a  servant,  was  dismissed  from  the 
said  service ;  that  after  she  was  so  dismissed,  she  had  applied  to 
a  person  of  the  name  of  Stewart,  for  the  purpose  of  being  retained 
and  hired  as  a  servant ;  that  Mrs.  Stewart  was  ready  and  willing 
to  have  hired  and  taken  her  into  her  service,  if  the  defendant 
would  have  given  her  a  character,  and  such  character  was 
[•  202]  *  satisfactory ;  that  it  was  the  duty  of  the  defendant,  by 
law,  to  have  given  her  such  character  as  she  deserved,  and 
then  assigned  a  breach;  that  the  defendant,  not  regarding  such 
her  duty,  wholly  refused  to  give  her  any  character  whatever,  by 
reason  of  which  the  said  Mrs.  Stewart  refused  to  hire  her  into  her 
said  service. 

Plea  of  not  guilty. 

Upon  the  pleadings  being  opened.  Lord  Kenyon  asked  the 
plaintiff's  counsel  if  they  had  any  prececjent  for  this  action,  or 
had  ever  known  of  such  an  action  being  maintained. 

Gibbs  said  he  had  no  case. 

Upon  which  his  Lordship  added:  There  was  no  case;  nor 
could  the  action  be  supported  by  law.  By  some  old  statutes, 
regulations  were  established  respecting  the  characters  of  labourers ; 
but  that  in  the  case  of  domestic  and  menial  servants,  there  was 
no  law  to  compel  the  master  to  give  the  servant  a  character;  it 
might  be  a  duty  which  his  feelings  might  prompt  him  to  perform, 
but  there  was  no  law  to  enforce  the  doing  of  it 

Gibbs  and  Woodfal  for  the  plaintiff. 

Grarrow  for  the  defendant 

Oar^ener  v.  Slade  and  Wife. 

18  L.  J.  Q.  B.  334-387  (s.  c.  13  Q.  B.  796 ;  13  Jur.  826). 

[884]  Master  and  Servant  —  Character,  —  Privileged  Communication, 

The  plaintiff,  a  domestic  servant,  was  engaged  by  A.,  on  a  character  given 
by  the  defendant;  a  short  time  afterwards  the  defendant,  having  reason  to 
believe  that  the  character  was  undeserved,  wrote  to  A.  a  letter  containing  an 
allusion  to  the  plaintiff  and  to  her  having  been  deceived.     A.  accordingly  called 

on  the  defendant,  and  made  more  inquiries  about  the  plaintiff's  chai^ 
[*8S6]  acter,  in  answer  to  which  the  defendant  imputed  dishonesty  *to  the 

plaintiff.  Held,  that  the  whole  of  the  communications  were  privileged, 
and  that  no  action  could  be  maintained ;  and  that  the  defendant  was  bound,  on 
discovering  that  the  character  was  undeserved,  to  state  that  fact  to  A. ;  and  that 
he  stood  in  the  same  position  as  if  the  statement  had  been  made  by  him  in 
answer  to  questions  asked  by  A.  in  the  first  instance. 


B.  C.  VOL.  XVII.]        SECT.  III.  —  DETERMINATION  OF  SERVICE.  247 

Ho.  7.  —  OaidenAT  v.  Slade  and  Wife,  18  L.  J.  Q.  B.  385. 

Case  for  slander.     Plea,  not  guilty. 

At  the  trial,  before  Wightman,  J.,  at  the  sittings  at  West- 
minster after  Trinity  Term,  1848,  it  appeared  that  the  plaintiff, 
in  1847,  went  into  the  service  of  the  defendants  as  cook,  and 
continued  there  till  August  following,  when  she  left  them  and 
went  into  the  service  of  a  Mr.  Malcolmson  with  a  character  given 
by  the  defendant,  Mr.  Slade,  his  wife  being  then  ill.  Subse- 
quently, on  the  19th  of  October,  Mrs.  Slade,  in  writing  to  Mrs. 
Malcolmson  to  inquire  the  character  of  another  servant  named 
Pearce,  in  the  service  of  the  latter  lady,  used  these  words :  **  I 
wish  to  know  whether  your  servant  is  economical  and  manages 
well  and  obeys  her  orders  in  not  allowing  the  other  servants  to 
eat  out  of  meal  time  nor  help  themselves.  I  mention  this  par- 
ticularly, having  discovered  that  I  have  been  much  imposed  on 
in  this  way  a  short  time  ago.  *  In  consequence  of  this  letter, 
Mrs.  Malcolmson  called  on  Mrs.  Slade,  and  during  conversation 
asked  her  whether  the  passage  in  her  letter  referred  to  the  plain- 
tiff, to  which  Mrs.  Slade  answered  that  it  did.  Mrs.  Malcolmson 
then  said,  "  Then  you  do  not  consider  her  honest  ? "  to  which 
Mrs,  Slade  replied,  "  Honest,  certainly  not ;  indeed  I  should  call 
it  very  dishonest "  These  were  the  words  complained  of.  On 
the  20th  of  November  Mrs.  Slade  wrote  to  Mrs.  Malcolmson  as 
follows :  — 

**  Dear  Madam,  —  You  will  see  by  the  enclosed  that  my  hus- 
band is  threatened  with  legal  proceedings  against  him  by  Gardener 
in  consequence  of  what  I  said  to  you  in  answer  to  your  questions. 
The  observations  which  I  made  to  you  upon  the  conduct  of 
Gardener  while  in  my  service  were  strictly  in  answer  to  questions 
put  by  yourself  and  in  strict  confidence ;  and  I  cannot  think,  and 
I  do  not  suppose  you  will  yourself  consider,  you  were  justified  in 
repeating  them  to  Gardener.  I  cannot  for  one  moment  imagine 
that  you  called  on  me  for  the  purpose  of  entrapping  me  into 
expressions  against  Gardener,  or  for  any  other  purpose  save  that 
of  conscientiously  informing  yourself  of  her  conduct  while  in  my 
family.  I,  therefore,  confidently  anticipate  that  you  will  not 
allow  yourself  to  be  put  in  the  painful  position  of  witness  against 
my  husband.  You  will  remember  that  I  imputed  no  dishonesty 
to  Gardener,  for  of  that  I  had  no  actual  knowledge.  I  stated 
that  the  weekly  bills  were   much  higher  than  usual,  which  I 


248  MASTER  AND  SERVANT. 


Fo.  7.  — Gaidaner  ▼.  SUda  and  Wife,  18  L.  J.  Q.  B.  885,  886. 

attributed  to  her  want  of  management  by  allowing  the  servants 
to  eat  either  what  or  when  they  pleased." 

Upon  these  facts  it  was  contended  that  this  was  a  privileged 
communication,  and  that  the  plaintiff  must  be  nonsuited.  The 
learned  Judge  reserved  leave  to  move  to  enter  a  nonsuit  on  that 
ground,  and  left  the  case  to  the  jury  to  say  whether  Mrs.  Slade 
believed  what  she  told  Mrs.  Malcolmson  to  be  true,  or  whether 
she  spoke  it  with  the  intention  of  injuring  the  plaintiff.  If  the 
words  were  spoken  maliciously  they  were  not  protected;  but  if 
spoken  only  with  the  bond,  fide  intention  of  letting  Mrs.  Malcolm- 
son  know  facts  which  she  ought  to  know,  that  the  defendants 
were  not  liable.  The  jury  gave  a  verdict  for  the  plaintiff,  with 
40s.  damages. 

A  rule  nisi  to  enter  a  nonsuit  or  for  a  new  trial,  on  the  ground 
of  misdirection,  and  also  to  arrest  the  judgment,  having  been 
granted,  — 

Petersdorff  showed  cause.  ^  —  It  is  conceded  that  if  Mrs.  Slade 
had  given  this  answer  when  the  questions  as  to  the  plaintiff's 
character  were  first  asked  by  Mrs.  Malcolmson,  that  it  would 
have  been  privileged;  but  the  slanderous  statement  was  made 
after  a  lapse  of  two  months,  and  therefore  Mrs.  Slade  acted  as  a 
mere  volunteer  in  making  it,  and  the  words  are  not  privileged. 
But  it  is  doubtful  whether  any  mere  words  can  be  so  strictly  of  a 
privileged  nature  that  a  Judge  is  justified  in  withdrawing  them 
wholly  from  a  jury. 

[Coleridge,  J.  — It  is  for  the  jury  to  find  the  circumstances 

under  which  any  communication,  whether  verbal  or  other- 

[*  336]  wise,  is  *  made,  and  then  it  is  for  the  Judge  to  say  upon 

the  facts  found,  whether  it  is  privileged  or  not.     But  the 

real  point  here  is,  that  it  is  all  part  of  one  transaction.  ] 

The  defendants  must  make  out  that  there  is  no  evidence  what- 
ever to  be  laid  before  the  jury;  but  Mrs.  Slade 's  letter  admits 
that  she  never  knew  of  any  dishonesty  in  the  plaintiff,  that  there- 
fore was  properly  left  to  the  jury  as  evidence  from  which  they 
might  infer  malice.  Pattison  v.  JoneSy  8  B.  &  C.  578,  7  L.  J. 
K  B.  26  (32  R  R  490) ;  Fountain  v.  Boodle,  3  Q.  B.  5 ;  Coxhead 
V.  Richards,  2  C.  B.  569,  15  L  J.  C.  R  278 ;  Bennett  v.  Deacon, 

1  January  27,  before  Lord  Denman,  Ch.  J,,  Pattbson,  J.,  Colebidoe,  J.,  and 

WlOHTMAV,  J. 


R.  C.  VOL.  XVII.]        SECT.  m. DKTERMINATION  OF  SERVICE.  249 

Ho.  7.  — Ottdnar  ▼.  SUdo  and  Wife,  18  L.  J.  Q.  B.  886. 

2  0.  B.  628,  15  L.  J.  0.  P.  289,  Blaekham  v.  Pugh,  2  C.  R  611, 
15  L.  J.  C.R  290. 

Fetersdorff  (June  14)  was  heard  against  the  rule  to  arrest  the 
judgment,  but  the  Court  gave  no  decision  on  that  ground. 

Crowder  (Taprell  was  with  him),  in  support  of  the  rule,  cited 
Child  V.  Affleck,  9  B.  &  C.  403,  7  L  J.  K.  B.  272  (33  R  R  216), 
and  was  then  stopped  by  the  Court 

Lord  Denman,  Ch.  J.  —  The  only  doubtful  part  of  the  case  is, 
that  the  conversation  complained  of  begins  with  Mrs.  Slade  her- 
self. The  letter  was  probably  the  initiation  of  the  matter,  but 
there  is  a  question  asked  by  Mrs.  Malcolmson,  and  answered  by 
Mra  Slade,  as  I  think  she  was  at  liberty  to  do.  It  is  admitted 
that  this  answer  would  have  been  privileged  if  given  in  the  first 
instance,  and  the  privilege  attaching  to  answers  given  to  questions 
of  this  sort  must  continue  as  long  as  anything  remains  unknown 
on  the  part  of  the  person  requiring  the  knowledge,  and  which  she 
could  not  find  out  before.  If  a  servant  gets  a  good  place  on  a 
character  given  by  you,  but  which  you  afterwards  discover  to  be 
undeserved,  you  are  bound,  in  my  opinion,  to  say  you  have  been 
deceived  in  what  you  previously  asserted.  I  think,  therefore, 
that  Mrs.  Slade  was  bound  to  answer  the  questions  put  to  her  on 
the  second  occasion,  and  that  the  whole  of  the  transaction  was 
privileged.  There  was,  therefore,  no  evidence,  either  from  the 
words  of  the  letter,  or  from  those  used  at  the  interview,  to 
negative  this  being  a  privileged  communication,  and  therefore 
a  nonsuit  should  be  entered. 

Coleridge,  J.  —  I  will  only  add  that  there  is  no  evidence  of 
malice  here,  except  what  might  be  inferred  from  the  words  them- 
selves. If  all  that  was  said  and  done  was  perfectly  consistent 
with  the  duty  of  the  party  making  the  communication,  it  cannot 
be  imputed  that  it  was  said  or  done  maliciously;  and  I  agree 
with  my  Lord  that  it  was  within  the  duty  of  Mrs.  Slade  to  make 
this  statement.  If  I  have  given  a  servant  a  good  character,  and  I 
afterwards  find  that  I  have  been  deceived,  and  that  the  servant  is 
dishonest,  I  am  bound  to  make  the  same  communication  then  as 
I  should  have  made  before  if  the  facts  had  been  known  to  me.  If 
I  answer  a  question  asked  of  me  incorrectly  from  ignorance,  it  is 
my  duty  as  an  honest  man  to  set  it  right  directly  I  have  the  means 
of  doing  so.  Here  Mr.  Slade  was  ignorant  of  what  was  the  truth 
when  he  gave  the  plaintiff  her  character;  and  when  Mrs.   Slade 


250  MASTER  AND   SERVANT. 

No0.  6,  7.  —  Carrol  v.  Bird ;  Ouxdmuat  v.  Blade. — Votea. 

found  out  that  the  character  given  was,  as  she  believed,  unde- 
served, it  may  be  conceded  that  she  threw  out  the  words  used  for 
the  purpose  of  being  asked  the  very  question  which  she  was 
asked;  and  in  giving  her  answer  she  stands  just  in  the  same 
position  as  she  would  have  done  had  she  used  the  same  words  on 
the  first  occasion. 

WiGHTMAN,  J.  —  I  quite  agree.  It  is  a  mistake  to  treat  the 
protection  which  ought  to  be  given  to  communications  of  this 
kind,  as  being  peculiarly  the  privilege  of  the  person  giving  the 
character,  for  there  are  two  other  classes  of  persons  quite  as  much 
interested :  parties  who  receive  servants  on  the  faith  of  characters, 
and  servants  themselves,  for  whose  benefit  it  clearly  is  that 
characters  should  be  given  with  impunity  —  otherwise  it  would 
be  very  difficult  for  them  to  get  any  character  given  to  them.  I 
quite  agree  that  if  a  master  were  capriciously  to  volunteer  a  false 
statement  from  motives  of  malice  towards  the  servant,  no  privi- 
lege would  exist,  because  of  the  express  malice.  I  find,  however, 
no  evidence  of  Mrs.  Slade  being  actuated  by  any  motives  of 
malice.  She  was  bound,  if  asked  by  Mrs.  Malcolmson,  in  the 
first  instance,  to  answer  the  question  put  to  her.     But  Mr.  Slade 

was  first  seen,  and  gave  the  character,  and  after  the  servant 
[*337]  *had   left,    Mrs.    Slade  discovered    circumstances    from 

which  she  infers  that  the  servant  was  not  entitled  to  the 
good  character  she  had  received.  She  was  not  able  to  prove  this 
in  Court,  undoubtedly,  but  still  she  was  bound  to  tell  her  belief 
on  the  subject  She  accordingly  writes  a  letter,  and  Mrs.  Malcolm- 
son  comes  in  consequence,  and  makes  a  further  inquiry  as  to  the 
servant's  character.  It  is  just  the  same  as  if  all  this  had  occurred 
in  the  first  instance ;  and  if  it  had  been  so,  there  could  have  been 
no  question  at  all.  I  think,  therefore,  that  this  is  a  privileged 
communication,  and  that  there  is  nothing  to  take  it  out  of  the 
rule  applicable  to  such  communications.  liule  absolute. 

ENGLISH  NOTES. 

The  first  principal  case  has  been  recognised  as  correctly  stating  the 
law  in  Handley  v.  Moffatt  (1872),  7  Ir.  R.  C.  L.  104. 

The  right  of  a  servant  who  has  obtained  a  situation  on  the  faith  of  a 
written  character,  to  claim  that  document  at  the  termination  of  the  ser- 
vice, was  the  subject  of  extra-judicial  observation  by  Lord  Abinger, 
C.  B.,  in  Taylor  v.  Rowan  (1836),  1  Car.  &  P.  70,  and  of  Hawkins  and 


B.  C.  VOL.  XVII.]        SECT.  IIL  —  DETERMINATION  OF  SERVICE.  251 

Vm.  6,  7.  —  CaxTol  V.  Bird ;  Gardener  v.  Slade.  —Notes. 

Channbll,'  JJ.,  in  Moult  v.  ffalliday,  1898,  1  Q.  B.  125,  67  L.  J. 
Q.  B.  451,  77  L.  T.  794,  46  W.  E.  318.  Lord  Abingeb  expressed 
the  opinion  that  the  master  might  write  upon  it  that  the  person  was 
afterwards  in  his  service  and  dismissed  for  mishehaviour.  In  the  latter 
case  the  opinion  is  expressed  that  the  master  is  justified  in  retaining  a 
written  character,  at  all  events  where  he  believes  that  the  character  is 
not  deserved.  Metropolitan  cabmen  have  a  right  to  have  their  licenses 
endorsed  by  their  late  employers,  the  dates  of  entering  and  leaving 
service,  as  required  by  the  statute,  and  the  employer  is  liable  in  dam- 
ages if  he  enters  anything  not  authorised  by  the  statute,  which  may 
prejudice  the  cabman.  Norris  v.  Birch,  1895,  1  Q.  B.  639,  64  L.  J. 
M.  C.  91,  72  L.  T.  491,  43  W.  E.  271. 

If  an  action  is  brought  against  the  master  for  defamatory  statements 
contained  in  a  letter  written  in  answer  to  inquiries  respecting  the 
character  of  a  servant,  the  defendant  must  produce  the  draft  or  copy 
of  the  letter.  Though  privileged  in  the  sense  that  the  statements  if 
hand  fide  made  are  not  actionable,  the  communications  are  not  privi- 
leged in  a  question  of  production  of  documents  in  the  action.  Wehb  v. 
JSast  (C.  A.  1880),  5  Ex.  D.  108,  49  L.  J.  Ex.  250,  41  L.  T.  715,  28 
W.  E.  336. 

In  Nichol  v.  Martyn  (1799),  2  Esp.  732,  5  E.  E.  770,  Lord  Kenton, 
Ch.  J.,  ruled  at  Nisi  Prius  that  a  servant,  while  in  his  master's  service, 
might  solicit  the  custom  of  persons  in  the  habit  of  dealing  with  his 
master  in  a  competing  business  which  the  servant  intended  to  set  up 
for  himself  after  the  determination  of  his  period  of  service.  This  ruling 
has  been  much  criticised,  and  is  perhaps  overruled,  by  a  series  of  de- 
cisions of  the  Court  of  Appeal.  It  is  clear,  at  all  events,  that  a  servant 
employed  in  a  business  is  not  entitled  to  copy  lists  of  customers  or  col- 
lect other  materials  which  come  into  his  possession  in  the  course  of  that 
employment,  for  the  purpose  of  setting  up  a  rival  business  on  the  de- 
termination of  the  service.  See  Lamb  v.  Evans  (C.  A.),  1893, 1  Ch. 
218, 62  L.  J.  Ch.  404, 68  L.  T.  131, 41 W.  E.  405 ;  Rohh  v.  Grem  (C.  A.), 
1895,  2  Q.  B.  315,  64  L.  J.  Q.  B.  593,  73  L.  T.  15,  44  W,  E.  25 ; 
L&wis  V.  Smellie  (C.  A.  1895),  73  L.  T.  226. 

AMERICAN  NOTES. 

Carrol  V.  Bird  is  cited  in  Browne  on  Domestic  Relations,  p.  128,  and 
Gardener  v.  Slade  in  Wood  on  Master  and  Servant,  sect.  164,  Townshend  on 
Slander  and  Libel,  pp.  424,  428.  In  Fowles  v.  Bowen,  30  New  York,  20,  it 
was  held  that  if  an  employer  has  given  a  former  clerk  a  general  letter  of 
recommendation,  but  is  subsequently  led  to  believe  him  dishonest,  a  com* 
munication  to  that  effect  to  the  present  employer  is  privileged,  the  Court 
observing :  '<  There  can  be  no  doubt  of  his  right  and  duty  to  make  such  a 


252  MASTEB  AND  SERVANT. 

No.  8.  —  XitoheU  v.  Crawwdler,  22  L.  J.  C.  P.  100,  101. —Bole. 

commTinication  if  it  was  true/'  &c.  The  like  was  held  in  Dale  v.  Harris,  109 
Massachusetts,  193,  of  a  charge  of  theft  made  to  police  officers.  See  Hatch  v. 
Lane,  105  Massachusetts,  394.  Where  a  railroad  company  '^  black-lists  "  a 
discharged  employee,  stating  that  he  has  been  guilty  of  theft,  it  is  liable  in 
damages  if  the  charge  was  unfounded.  Obiter,  Bacon  v.  Mich,  Cent.  R,  Co,^ 
55  Michigan,  224 ;  54  Am.  Rep.  372.  But  contra,  Missouri  Pac,  Ry,  Co.  v. 
Richmond,  73  Texas,  568 ;  15  Am.  St.  Rep.  794,  holding  that  the  communica- 
tion is  privileged  in  the  absence  of  proof  of  malice.  The  Rule  is  sustained 
by  Fresh  v.  Cutter,  73  Maryland,  87;  10  Lawyers'  Rep.  Annotated,  07,  a 
very  good  review  of  English  and  American  authorities. 


Section  IV.  —  Respondeat  Superior. 

No.  8.  — MITCHELL  v.  CRASSWELLER 
(c.  p.  1853.) 

No.  9.  — LIMPUS  V.  LONDON  GENERAL  OMNIBUS  CO. 

(ex.  ch.  1862.) 

RULE. 

The  liability  of  a  master  for  the  acts  or  defaults  of  his 
servant  is  confined  to  cases  in  which  the  matter  com- 
plained of  flows  from  something  incident  to  the  employ- 
ment for  which  the  servant  is  hired,  or  where  the  servant 
is  acting  in  furtherance  of  his  master's  interest. 

Mitchell  V.  Crassweller. 

22  L.  J.  C.  P.  100-104  (8.  c.  13  C.  B.  237). 

[100]  Master  and  Servant.  — Negligent  Driving,  — Course  of  Employment. 

It  was  the  duty  of  the  defendants'  carman,  after  having  delivered  his  mas- 
ters' goods  for  the  day,  to  return  to  their  house,  get  the  key  of  the  stable,  and 
put  up  their  horse  and  cart  in  a  mews  in  an  adjoining  street.  On  his  return  one 
evening  he  got  the  key,  but  instead  of  going  to  the  mews,  and  without  the  de- 
fendants' leave,  he  drove  a  fellow-servant  in  an  opposite  direction,  and  on  his  way 
back  injured  the  plaintiff  by  his  negligent  driving.  Hdd,  that  the  defendants 
were  not  liable. 

[101]        The  declaTatiou  stated  that  on  the  8th   of  September, 

1852,  the  defendants  were  possessed  of  a  certain  cart  and 

horse,  which  was  being  driven  by  and  under  the  care  and  direction 


R.  C.  VOL.  XVII.]       SECT.  IV.  —  RESPONDEAT  SUPERIOE.  253 

Ho.  8.  — XitohdU  ▼.  GnMweller,  22  L.  J.  C.  P.  101. 

of  the  defendants'  servant,  and  that  whilst  the  plaintiiBf  Dorothy 
was  crossing  a  street  in  London  called  Grafton  Street,  the  defend- 
ants, by  their  servant,  so  negligently  and  improperly  drove  and 
directed  the  said  cart  and  horse  along  the  said  street,  that  the 
said  cart  and  horse  ran  against  and  struck  the  said  plaintiff 
Dorothy  with  great  violence  and  threw  her  down,  and  the  wheel 
of  the  said  cart  passed  over  her,  by  reason  whereof  the  said  last- 
mentioned  plaintiff  was  very  much  hurt  and  injured,  and  was 
<^onfined  to  her  bed  several  weeks,  and  during  that  time  underwent 
and  still  continues  to  undergo  a  great  deal  of  pain  and  suffering ; 
and  the  plaintiff  in  right  of  the  said  plaintiff  Dorothy  claims 
JEIOO. 

The  second  count  was  similar,  excepting  that  it  concluded  with 
a  statement  of  special  damage  to  the  plaintiff  Richard  Mitchell. 

Pleas:  first,  not  guilty;  secondly,  not  possessed  of  the  horse 
and  cart  A  third  plea  was  added  at  Nisi  Prius  by  leave  of  the 
Judge:  that  at  the  time  when  the  injury  was  sustained  by  the 
said  Dorothy  the  said  horse  and  cart  were  not  being  used  in 
the  employ  of  the  defendants,  but  were  improperly  used  by  the 
persons  driving  themselves,  for  other  and  different  purposes. 

The  cause  was  tried,  before  Jervis,  Ch.  J. ,  at  the  sittings  for 
London,  after  last  Michaelmas  Term,  when  it  appeared  that  the 
defendants,  who  were  ironmongers  in  Welbeck  Street,  kept  a  cart 
for  the  purposes  of  their  business,  and  that  it  was  the  duty  of 
their  carman  after  delivering  their  goods  during  the  day  to  return 
at  night  to  Welbeck  Street,  and  get  the  keys  of  the  stable  from 
the  defendants'  house,  and  put  up  the  horse  and  cart  in  a  mews 
five  hundred  yards  distant  Upon  the  evening  in  question,  after 
getting  the  key,  he  was  requested,  by  the  defendants'  foreman,  to 
drive  him  part  of  his  way  home,  upon  which  he  went  to  ask  his 
masters'  leave,  and  not  being  able  to  find  them,  said,  "  that  he 
would  chance  it ;  "  and  accordingly  he  drove  their  foreman  as  far 
as  Euston  Square ;  and  as  he  was  coming  back  he  drove  over  the 
plaintiff  Dorothy,  and  caused  the  injury  complained  of  in  the 
declaration.  It  was  objected,  at  the  trial,  that  the  defendants 
could  not,  under  the  first  or  second  plea,  show  that  the  carman 
was  not  acting  at  the  time  of  the  accident  as  their  servant  The 
Lord  Chief  Justice  being  of  that  opinion  permitted  the  third  plea 
to  be  added,  under  the  222nd  section  of  the  Common  Law  Pro- 
cedure Act,  15  &  16  Vict,   c.  76. 


254  MASTER  AND  SEBVANT. 


Ho.  8.  —  MitdhaU  v.  CraMwdler,  88  L.  J.  0.  P.  101, 108. 

The  jury,  in  answer  to  questions  put  by  his  Lordship,  found 
that  the  accident  happened  through  the  carman's  negligent  driv- 
ing, and  they  assessed  the  damages  for  the  plaintiffs  at  £40.  The 
verdict  was,  by  the  direction  of  the  Lord  Chief  Justice,  entered 
for  the  defendants,  and  leave  was  reserved  to  the  plaintiffs  to 
move  to  enter  it  for  them  for  £40,  on  two  groimds :  first,  that  the 
defence  raised  by  the  third  plea  was  not  admissible  under  the 
original  pleadings,  and  that  the  Judge  had  no  power  to  allow 
the  additional  plea;  secondly,  that  the  defendants  were  liable 
for  the  negligence  of  their  servant 

Shee,  Serjt. ,  having  obtained  a  rule  nisi  accordingly, 

Byles,  Serjt ,  now  showed  causa  —  The  defendants  are  not  liable. 
The  rule  to  be  deduced  from  the  cases  upon  this  subject  is,  that 
where  the  servant  is  engaged  upon  his  master's  business,  but  per- 
forms it  negligently,  the  master  is  responsible ;  but  where  he  is 
not  engaged  in  the  master's  business  his  master  is  not  responsible. 
It  is  conceded  that  a  mere  act  of  disobedience  committed  by  the 
servant  while  executing  his  master's  orders  will  not  relieve  the 
latter  from  liability;  as,  for  instance,  if  the  servant  takes  one 
route,  when  he  was  directed  to  take  another,  or  drives  fast,  when 
he  was  ordered  to  drive  slow,  or  the  like.  The  distinction  is  very 
clearly  laid  down  by  Parke,  B.,  in  Joel  v.  Morrison,  6  Car.  & 
P.  501 :  "  If  the  servant  was  going  out  of  his  way,  against  his 
master's  implied  commands,  when  driving  in  his  master's  busi- 
ness, he  will  make  his  master  liable ;  but  if  he  was  going  on  a 
frolic  of  his  own,  without  being  at  all  on  his  master's  business, 
the  master  wil  not  be  liable.  *  That  case  was  recognised 
[*102]  in  *Sleath  v.  Wilson,  9  Car.  &  P.  607,  and  in  Lamhv. 
Palk,  9  Car.  &  P.  629.  In  the  present  case  the  servant 
had  business  to  do  for  his  master,  but  he  was  not  doing  it  Sup- 
pose he  had  been  employed  to  drive  into  the  city,  and  instead  of 
doing  so  he  had  driven  to  York,  and  remained  there  a  week,  and 
then  returned  to  execute  his  masters'  orders,  it  cannot  be  said 
that  the  defendants  would  have  been  liable  for  an  injury  caused 
by  his  negligent  driving  on  his  way  back. 

Shee,  Serjt,  and  Garth,  in  support  of  the  rule.  — The  principle 
upon  which  the  defendants'  argument  proceeds  is  not  denied;  the 
only  question  is,  how  it  is  to  be  applied  to  the  present  case.  Joel 
v.  Morrison  is  in  the  plaintiffs'  favour,  and  the  facts  of  Sleath 
V.    Wilson  were  precisely  similar  to  the  present.     The  servant 


B.  a  VOL.  xvn.]      sect.  iv.  —  respondeat  superior.  255 

Ho.  8.  — MitoheU  v.  CraMweUer,  22  L.  J.  C.  P.  102. 

there,  instead  of  driving  to  Castle  Street  as  he  was  ordered,  drove 
in  a  different  direction,  to  deliver  a  parcel  of  his  own,  and  as  he 
returned  the  accident  happened.  Erskine,  J. ,  there  says :  "  It  is 
quite  clear  that  if  a  servant,  without  his  master's  knowledge, 
takes  his  master's  carriage  out  of  the  coach-house,  and  with  it 
commits  an  injury,  the  master  is  not  answerable;  and  on  this 
ground,  that  the  master  has  not  intrusted  the  servant  with  the 
carriage.  But  whenever  the  master  has  intrusted  the  servant  with 
the  control  of  the  carriage,  it  is  no  answer  that  the  servant  acted 
improperly  in  the  management  of  it  And  in  this  case  I  am  of 
opinion  that  the  servant  was  acting  in  the  course  of  his  employ- 
ment, and  till  he  had  deposited  the  carriage  in  the  Eed  Lion 
Stables  in  Castle  Street,  in  Leicester  Square,  the  defendant  was 
liable  for  an  injury  which  might  be  committed  through  his  negli- 
gence.'  So  here,  the  defendants,  having  intrusted  the  carman 
with  their  cart,  are  liable  for  his  negligence  until  he  had  com- 
pleted his  duty  by  depositing  the  cart  in  the  mews. 

[Maule,  J.  —  The  question  raised  by  this  declaration  is  not  a 
question  of  trust,  but  whether  the  defendants,  by  their  servant, 
negligently  drove.  The  servant  started  from  Welbeck  Street,  not 
for  the  purpose  of  going  to  the  stable,  but  of  going  to  another  and 
a  different  place,  not  on  his  masters'  business,  but  on  his  own.] 

The  mere  going  out  of  his  way  does  not  constitute  a  breach  of 
orders  so  as  to  exonerate  the  defendants.  Extreme  cases  may  be 
put  either  way.  Suppose,  instead  of  going  to  York,  as  has  been 
suggested,  the  carman  had  only  gone  a  few  yards  out  of  his  road, 
can  it  be  said  that  the  defendants  would  not  have  been  liable  for 
his  negligent  driving  those  few  yards  ?  The  true  principle  appli- 
cable to  these  cases  is,  that  the  master  is  responsible  to  the  public 
for  employing  a  negligent  servant.  M^Manus  v.  Crickett,  1  East, 
106  (5  R  B.  518).  As  to  the  other  question,  a  special  plea  was 
necessary.  There  is  a  distinct  allegation,  by  way  of  inducement, 
in  the  declaration,  that  the  defendants'  horse  and  cart  was  being 
"  driven  by  and  under  the  care  of  the  defendants'  servant  This 
is  not  put  in  issue  by  not  guilty,  and  not  being  specially  traversed, 
is  admitted.  Tavemer  v.  Little,  5  Bing.  N.  C.  678,  9  L.  J. 
(KS.)  C.  P.  59;  Dunford  v.  Trattles,  12  M.  &  W.  529,  13  L.  J. 
(N.S.)  Ex.  124;  Wool/  v.  Beard,  8  Car.  &  P.  373;  and  Hart  v. 
Crowley,  12  Ad.  &  K  378.  It  is  compulsory  on  the  Judge  to 
exercise  the  power,  whatever  it  may  be,  conferred  by  the  222nd 


256  MASTER  AND  SERVAKT. 

Ho.  8.  ^Mitohdl  v.  CraMwdler,  88  L.  J.  C.  P.  108,  108. 

section  of  the  Common  Law  Procedure  Act.  If  he  must  allow 
pleas  to  be  added  at  the  discretion  of  the  party  applying,  an  order 
to  plead  several  matters  will  never  be  requisite. 

[Jervis,  Ch.  J.  —  The  Judge  will  exercise  the  power,  and  impose 
such  terms  as  he  thinks  just] 

It  is  submitted  that  the  "  defects  and  errors  "  mentioned  in  that 
section  must  be  confined  to  causes  of  action  and  defences  on  the 
record. 

[Williams,  J.  — The  inducement  does  not  state  that  the  cart 
was  under  the  direction  of  the  defendants'  servant  at  the  time  of 
the  accident  The  defendants  may  well  admit,  what  the  general 
issue  does  not  deny,  that  the  driver  was  their  servant  as  stated  in 
that  allegation ;  but  not  admit  that  he  was  their  servant  whilst 
the  plaintiff  was  crossing  the  street,  as  is  subsequently  averred.  ] 

Eeading  the  whole  declaration  together,  the  driving  mentioned 
in  the  inducement  and  in  the  statement  of  the  grievance  must  be 

taken  to  be  contemporaneous. 
[*  103]  *  Jervis,  Ch.  J.  —  I  am  of  opinion  that  this  rule  should 
be  discharged.  It  is  not  necessary  to  give  any  opinion  on 
the  question  whether  I  was  right  in  allowing  the  third  plea  to  be 
added,  or  to  decide  what  is  meant  by  "  defects  and  errors'  in 
section  222  of  the  Common  Law  Procedure  Act  Before  giving 
an  opinion,  I  should  wish  for  further  consideration,  and  also  to 
see  a  case  which  I  understand  has  been  decided  in  the  Court  of 
Queen's  Bench  upon  the  point  My  first  impression  is,  that  the 
power  conferred  upon  the  Judge  by  that  section  is  not  merely  to 
remedy  formal  errors  in  pleadings  upon  the  record,  but  to  allow 
such  amendments  to  be  made  as  will  ultimately  bring  the  real 
matter  at  issue  between  the  parties  before  the  jury.  It  is,  how- 
ever, unnecessary  to  go  into  that,  because  I  think  that  the  defence 
was  admissible  on  the  record  as  it  originally  stood.  The  first 
allegation  of  the  declaration  is,  "that  the  defendants  were  pos- 
sessed of  a  certain  cart  and  horse,  which  was  being  driven  by  the 
defendants'  servant,*  without  saying  when  or  under  what  circum- 
stances, so  that  any  innocent  driving  would  satisfy  that  allega- 
tion. It  is,  therefore,  immaterial  and  could  not  be  traversed. 
The  time  is  fixed,  though  loosely,  by  a  subsequent  allegation, 
which  charges  the  grievance,  that  "  while  the  plaintiif  Dorothy 
was  crossing  the  street,  the  defendants,  by  their  servant,  negli- 
gently drove. '     That  is  put  in  issue  by  not  guilty,  and  the  ques- 


B.  C.  VOL.  XVII.]        SECT.  IV.  —  RESPONDEAT  SUPERIOR.  257 

Ho.  8.  —  mtdwU  V.  GraasweUer,  32  L.  J.  C.  P.  108. 

tion  is  raised  whether  at  that  time  the  defendants  did,  by  their 
servant,  negligently  drive.  This  brings  me  to  the  substantial 
question  at  issue,  whether  the  defendants  are  liable.  Each  case 
must  depend  upon  its  own  particular  circumstances,  and  no 
doubt  there  may  be  cases  in  which  the  master  is  liable  if  the 
servant  drives  extra  viam,  but  I  do  not  think  this  is  one  of  them. 
It  cannot  be  denied  that,  although  the  servant  was  on  his  masters' 
service  up  to  the  time  that  he  arrived  first  in  Welbeck  Street,  he 
started  from  thence  on  a  new  journey,  and  not  with  the  intention 
of  performing  his  masters'  business,  but,  as  it  were,  upon  a  frolic 
of  his  own;  in  which  case,  as  said  by  Parke,  B.,  in  Joel  v. 
Morrison,  his  masters  would  not  be  liable.  If  he  had  started  to 
go  to  the  stables,  and  had  merely  deviated  from  the  direct  road  to 
them,  possibly,  the  defendants  would  have  been  liable  for  his 
negligent  driving  during  the  deviation.  But  I  think  that  to 
make  them  liable,  he  must  have  originally  started  upon,  and  have 
been  at  the  time  of  the  committing  the  grievance  in  the  course  of 
following,  his  masters'  employment  Here  the  driver  did  not 
start  upon  his  masters'  business,  and  was  in  no  way  in  the  course 
of  following  it,  but  the  contrary.  I  think,  therefore,  that  the 
defendants  are  not  liable. 

Mauls,  J.  —  I  am  of  the  same  opinion.  As  to  the  last  point 
aigued,  it  is  clear  that  the  first  allegation,  that  the  defendants 
were  possessed  of  a  cart  which  was  being  driven  by  their  servant, 
without  saying  when,  is  perfectly  immaterial,  and  therefore  not 
traversable,  and  that  the  question  put  in  issue  by  not  guilty  is, 
whether  the  defendants  at  the  time  of  the  accident  were,  by  their 
servant,  driving.  This  is  not  a  case  in  which  the  servant  went  a 
roundabout  way  to  perform  his  masters'  business;  it  cannot  be 
said  that  his  journey  to  Euston  Square  was  a  mere  dStour  from 
Welbeck  Street  to  the  stable,  any  more  than  a  man  ordered  to  go 
from  Dover  to  Calais  would  be  said  to  make  a  ditour  if  he  were 
first  to  go  from  Dover  to  Australia  and  then  return  to  Dover  and 
go  to  Calais.  The  servant  here  did  something  contrary  to,  and 
inconsistent  with,  his  masters'  business;  the  journey  to  Euston 
Square  had  no  connexion  with  it  whatever,  and  the  servant  only, 
not  his  masters,  is  liable.  The  cases  are  consistent,  and  reconcil- 
able with  this  decision ;  and  they  only  show  that  the  master  is 
liable,  if  the  servant  be  guilty  of  negligence  whilst  on  his  master's 
business.     Here  the  servant  was  not  on  his  masters'  business. 

VOL.  XVII.  — 17 


258  MASTER  AND   SERVANT. 


Ha  9.  —  Umpni  v.  London  General  Omniboe  Co.,  82  L.  J.  Ex.  M,  86. 

Cresswell,  J.  —  I  am  entirely  of  the  same  opinion,  for  the 
reasons  given  by  my  Lord  and  my  Brother  Maule.  Evidence  to 
show  that  the  driver  was  not,  at  the  time  of  the  committing  the 
grievance,  the  defendants'  servant,  was  clearly  admissible  under 
the  general  issue.  I  do  not  say  that  the  Lord  Chief  Justice  was 
wrong  in  allowing  the  third  plea  to  be  added ;  but  J  should  wish 
for  further  time  to  consider  the  matter  before  deciding  what 
construction  is  to  be  put  upon  the  222nd  section.  With  reference 
to  the  main  point,  the  servant  was  not,  at  the  time  of  the 
[*  104]  accident,  *at  all  in  the  course  of  discharging  any  employ- 
ment of  his  masters.  No  doubt  if  a  servant  does  what 
his  master  employs  him  to  do  in  a  negligent,  improper,  or  round- 
about way,  his  master  is  liable.  But  here  the  servant  was  acting, 
and  knew  that  he  was  acting,  contrary  to  his  trust  and  to  his 
masters'  employment,  for  he  goes  to  ask  his  masters'  leave,  and 
not  being  able  to  find  them,  he  says  that  "  he  will  chance  it. " 

Williams,  J.  —  I  am  of  the  same  opinion ;  and  I  should  have 
been  very  sorry  if  any  authority  had  been  found  which  compelled 
us  to  hold  that  the  servant,  on  this  occasion,  was  about  his 
masters'  employment  As  to  the  other  point,  if  the  allegation 
that  the  defendants  were  possessed  of  a  cart,  which  was  being 
driven  by  their  servant,  had  pointed  to  the  particular  time  of  the 
committing  the  grievance,  it  would  have  been  traversable,  and 
being  matter  of  inducement  would  not  have  been  put  in  issue  by 
not  guilty.  But  as  it  stands,  it  is  a  perfectly  immaterial  allega- 
tion, and  not  traversable.  Hule  discharged, 

Limpus  V.  London  General  Omnibus  Company. 

82  L.  J.  Ex.  34-42  (s.  c.  1  HurL  &  Colt.  526 ;  9  Jur.  (N.  S.)  333). 

[84]  Master  cmd  Servant  —  Act  done  in  Course  of  Employment, —  lAahUity  of 
Master  for  Servant's  Act, 

A  servant  employed  by  the  defendants  to  drive  their  omnibus  drew  his  omni- 
bus across  the  road,  in  front  of  a  rival  omnibus  of  the  plaintiff,  to  obstruct  the 
passage  of  the  latter,  and  in  so  doing  ran  against  and  injured  the  plaintiff's 
omnibus.      The  defendants'  servant  had  express  directions  from  his  masters 

not  to  obstruct  other  omnibuses,  or  to  annoy  their  drivers  or  conductors. 
[•  86]  ♦The  defendants'  servant  said  that  he  did  it  on  purpose,  and  to  serve 

the  plaintiff's  driver  as  the  latter  had  served  him.  On  the  trial  of  the 
action  for  the  injury,  the  Judge  directed  the  Jury  that  if  the  defendants'  driver, 
being  irritated,  acted  carelessly,  recklessly,  wantonly,  or  improperly,  but  in  the 
course  of  his  employment,  and  in  doing  that  which  he  believed  to  be  for  the 


B.  0.  VOL.  XVn.]      SECT.  IV.  — RESPONDEAT  SUPERIOR.  259 

Ho.  9.  —  UmpQS  V.  London  General  Omnilrae  Go.,  82  L.  J.  Ex.  86. 

interests  of  the  defendants,  then  the  defendants  were  responsible  for  the  act  of 
their  servant ;  that  the  instructions  given  by  the  defendants  to  the  driver,  not  to 
obstruct  other  omuibuseS;  if  he  did  not  pursue  them,  were  immaterial  as  to  the 
question  of  the  masters'  liability,  but  that  if  the  true  character  of  the  driver's  act 
was  that  it  was  an  act  of  his  own,  and  in  order  to  effect  a  purpose  of  his  own, 
then  the  defendants  were  not  responsible.  Heldy  by  the  Court  (dissentierUe 
WiQHTMAN,  J.),  that  the  direction  was  proper. 

This  was  a  bill  of  exceptions  to  the  ruling  of  Martin,  B. 

The  declaration  stated  that  the  plaintiff  and  defendants  were 
each  possessed  of  an  omnibus,  which  was  being  driven  by  their 
respective  servants  along  a  public  highway,  and  charged  that  "  the 
defendants,  by  their  servant,  so  carelessly,  negligently,  and  im- 
properly drove,  governed,  and  directed  their  said  omnibus  and 
horses,  that  by  and  through  the  mere  carelessness,  negligence,  and 
improper  conduct  of  the  defendants,  by  their  said  servant,  the 
omnibus  of  the  defendants  ran  against  the  horses  and  omnibus  of 
the  plaintiff,  and  overturned  it. " 

Plea,  not  guilty. 

At  the  trial,  the  driver  of  the  plaintiff's  omnibus  stated,  in 
evidence,  that  as  he  was  driving  from  Sloane  Street  to  Kensington 
he  stopped  to  take  up  two  passengers;  that  then  the  defendants' 
omnibus  passed  his;  that  after  passing,  the  defendants'  driver 
eased  his  pace ;  that  the  witness  went  on  at  his  regular  pace  and 
overtook  the  defendants'  omnibus;  that  there  was  room  on  the 
road  then  for  five  or  six  omnibuses  abreast ;  that  when  the  wit- 
ness got  up  to  the  defendants'  omnibus  the  latter  was  rather  on 
the  off*  side  of  the  road,  but  that  there  was  plenty  of  room  to  pass ; 
that  as  the  witness  was  going  to  pass,  the  defendants'  driver  pulled 
across  the  road,  and  one  of  his  hind  wheels  touched  the  shoulder 
of  one  of  witness's  horses ;  that  the  defendants'  driver  threw  the 
witness's  off  horse  on  to  the  bank;  that  the  wheels  also  went  up 
the  bank,  and  the  plaintiff's  omnibus  was  upset.  On  cross- 
examination,  he  stated  that  the  defendants'  driver  pulled  his 
horses  towards  the  witness's  horses  to  prevent  his  passing. 

Other  witnesses  stated  that  the  defendants'  driver  pulled  across 
the  road  for  the  purpose  of  preventing  the  plaintiff's  omnibus 
passing  on  the  off  side ;  and  that  it  was  a  reckless  piece  of  driving 
on  the  part  of  the  defendants'  driver. 

Some  evidence  was  also  given  as  to  something  that  had  taken 
place  between  the  two  drivers  on  a  preceding  day. 


260  MASTER  AND  SERVAITT. 

Ho.  9.  —  UmpQS  ▼.  London  General  Omnibai  Go.,  88  L.  J.  Ex.  86,  86. 

The  defendants'  driver,  Whitechurch,  swore  that  he  passed 
plaintifif's  omnibus  as  he  took  up  the  two  passengers ;  that  after- 
wards the  plaintiff's  driver  put  his  horses  into  a  gallop  to  pass 
defendants'  again;  that  as  soon  as  he  got  up,  he,  the  defendants' 
driver,  pulled  across  to  keep  the  plaintiff's  omnibus  from  passing 
him,  to  serve  him  as  he,  the  plaintiff's  driver,  had  served  the 
witness ;  and  that  he,  the  witness,  pulled  across  him  on  purpose. 
He  stated  further,  that  he  was  presented  with  the  following  regu- 
lations by  the  company,  and  that  every  driver  was  directed  to 
act  in  accordance  therewith :  *  During  the  journey  he  must  drive 
his  horses  at  a  steady  pace,  endeavouring  as  nearly  as  possible  to 
work  in  conformity  with  the  time  list,  and  not  on  any  account  to 
race  with  or  obstruct  other  omnibuses,  or  hinder  or  annoy  the 
driver  or  conductor  thereof  in  his  business,  whether  that  omnibus 
be  one  belonging  to  the  company  or  otherwise. " 

Another  witness  for  the  defendant  said  that  the  defendants' 
driver  maliciously  and  spitefully  drove  his  horses  suddenly  to  the 
footpath. 

Martin,  B.,  directed  the  jury  "that  where  the  relation  of 
master  and  servant  existed,  the  master  was  responsible  for  the 
reckless  and  improper  conduct  of  the  servant  in  the  course  of 
the  service,  and  that  if  the  jury  believed  that  the  real  truth  of 
the  matter  was,  that  the  defendants'  driver,  Whitechurch,  being 
dissatisfied  and  irritated  with  the  plaintiff's  driver,  whether 
justly  or  unjustly,  by  reason  of  what  had  occurred,  and  in 
[*  36]  that  state  of  mind  acted  carelessly,  *  recklessly,  wantonly, 
and  improperly,  but  in  the  course  of  his  service  and  em- 
ployment, and  in  doing  that  which  he  believed  to  be  for  the 
interest  of  the  defendants,  then  the  defendants  were  responsible 
for  the  act  of  their  servant ;  that  if  the  act  of  Whitechurch,  the 
defendants'  driver,  in  driving,  as  he  did,  across  the  road  to 
obstruct  the  plaintiff's  omnibus,  although  a  reckless  driving  on 
his  part,  was,  nevertheless,  an  act  done  by  him  in  the  course  of 
his  service,  and  to  do  that  which  he  thought  best  to  suit  the 
interests  of  his  employers,  and  so  to  interfere  with  the  trade  and 
business  of  the  plaintiff's  omnibus,  the  defendants  were  respon- 
sible ;  that  the  liability  of  the  master  depended  upon  the  acts  and 
conduct  of  the  servant  in  the  course  of  the  service  and  employment, 
and  that  the  instructions  given  to  the  said  Thomas  Whitechurch, 
and  read  in  evidence  to  the  jury,  were  immaterial  if  the  said 


B.  a  VOL.  XVIL]       sect,  IV.  —  BESPONDEAT  SUPERIOR.  261 

Ho.  9.  —  Umpni  ▼.  London  General  Omnflms  Go.,  88  L.  J.  Ex.  86. 

Thomaa  Whitechurch  did  not  pursue  them,  and  that  what  had 
occurred  between  the  drivers  of  the  plaintiff's  and  defendants' 
omnibuses  on  the  day  previous  to  the  occurrence  complained  of 
was  immaterial  and  irrelevant  But  that  if  the  true  character  of 
the  act  of  the  defendants'  servant  was  that  it  was  an  act  of  his 
own,  and  in  order  to  effect  a  purpose  of  his  own,  the  defendants 
were  not  responsible. " 

The  defendants'  counsel  excepted  to  the  direction,  and  said  that 
the  learned  Baron  misdirected  the  said  jury  in  telling  and  direct- 
ing them  as  aforesaid,  and,  further,  that  the  learned  Baron  ought 
to  have  told  the  jury  that  if  they  believed  that  the  defendants' 
driver  wilfully  drew  across  the  road  as  aforesaid,  even  for  the 
purpose  of  merely  obstructing  the  plaintiff's  omnibus,  the  defend- 
ants were  not  responsible;  and  that  he  ought  to  have  told  and 
directed  the  jury  that  for  an  act  wilfully  done  by  the  servant  of 
the  defendants,  against  the  orders  of  his  employers  contained  in 
the  said  paper  or  card,  even  though  at  the  time  of  doing  it  he  was 
in  the  course  of  driving  for  his  employers,  the  defendants  were 
not  responsible;  that  the  learned  Baron  ought  to  have  told  the 
jury  that  there  was  no  evidence  to  justify  them  in  finding  that  the 
driver  of  the  defendants'  omnibus,  in  doing  the  act  complained  of, 
was  acting  in  the  course  of  his  employment ;  and  that  he  ought  to 
have  told  them  that  there  was  no  evidence  to  warrant  them  in 
finding  for  the  plaintiff,  and  ought  to  have  directed  them  to  find 
their  verdict  for  the  defendants.  The  jury  found  for  the  plaintiff, 
£35  damages. 

Mellish,  for  the  plaintiffs  in  error,  the  defendants  below  (June 
23,  1862).  —  This  direction  is  wrong.  It  is  put  as  an  essential 
part  of  the  direction,  whether  the  defendant's  servant  was  doing 
what  he  thought  was  for  the  benefit  of  his  master.  The  question 
should  have  been,  whether  he  was  doing  what  he  thought  best  to 
carry  out  the  orders  of  his  master.  The  true  rule  is  laid  down  in 
Croft  V.  Alison,  4  B.  &  Aid.  590  (23  R  R  407) :  "  If  a  servant 
driving  a  carriage,  in  order  to  effect  some  purpose  of  his  own, 
wantonly  strike  the  horses  of  another  person  and  produce  the 
accident,  the  master  will  not  be  liable.  But  if,  in  order  to  per- 
form his  master's  orders,  he  strike,  but  injudiciously  and  in  order 
to  extricate  himself  from  a  difficulty,  that  will  be  negligent  and 
careless  conduct,  for  which  the  master  will  be  liable,  being  an  act 
done  in  pursuance  of  the  servant's  employment.     Oreenivood  v. 


262  MASTER  AND   SERVANT. 


Ho.  9.  —  limpafl  ▼.  Londoii  Gensral  OnmilniB  Co.,  82  L.  J.  Ex.  86,  87. 

Seymour,  7  Hurl.  &  N.  355,  30  L.  J.  Ex.  327,  is  to  the  same 
effect.  Here  it  is  clear  that  the  defendants'  driver  wilfully  and 
purposely  obstructed  the  plaintiff's  omnibus.  That  was  not  an 
act  within  the  scope  of  his  employment,  and  was  decidedly  con- 
trary to  the  orders  given  to  him  by  his  masters.  The  masters, 
therefore,  are  not  liable.  Every  purpose  of  the  driver  is  a  pur- 
pose of  his  own,  except  that  which  his  master  has  ordered  him 
to  carry  out. 

[Crompton,  J.  —  Is  it  not  carrying  out  the  masters'  purpose  to 
get  before  the  other  omnibus,  and  get  the  run  of  the  road  ?] 

The  driver's  business  was  to  drive  to  Hammersmith. 

[Blackburn,  J.  —  The  object  of  the  defendants  was  not  simply 
that  the  driver  should  drive  to  Hammersmith,  but  that  he  should 
pick  up  traffic  on  the  way.  Was  not  that  which  the  driver  did  a 
step  for  the  purpose  of  picking  up  passengers  ?] 

The   driver  drove   across  the  plaintiff's  onmibus  not  for  the 
purpose  of  picking  up  passengers,  but  for  the  purpose  of 
[*  37]  obstructing  the  other,  and,  as  he  says,  to  serve  the  *  plain- 
tiff's driver  as  the  plaintiff's  driver  had  served  him  before. 

[Williams,  J.  — There  is  a  great  distinction  between  the  scope 
of  a  servant's  employment  and  the  particular  orders  given  him  by 
the  master.  You  must  admit  that  if  the  master  gave  his  servant 
directions  not  to  get  drunk  and  drive,  and  he  did  get  drunk  and 
drove,  his  master  would  be  liable.] 

The  particular  orders  point  out  what  was  the  scope  of  the 
servant's  employment 

[WiGHTMAN,  J.  — Would  the  master  have  been  liable  if  the 
servant  had  thought  it  best  for  his  master's  interest  to  run  against 
and  overturn  the  other  omnibus,  and  had  done  so  intentionally  ?] 

Lyons  v.  Martin,  8  Ad.  &  E.  512,  7  L.  J.  (K  S.)  Q.  B.  214, 
shows  that  he  would  not,  and  that  a  master  will  not  be  liable  for 
an  act  of  the  servant  merely  because  he  does  it  believing  it  to  be 
for  his  master's  benefit  In  that  case  Patteson,  J. ,  says,  "  A 
master  is  liable  where  his  servant  causes  injury  by  doing  a  lawful 
act  negligently,  but  not  when  he  wilfully  does  an  illegal  one. " 
Here  the  defendant's  driver  wilfully  did  an  illegal  act  To 
render  the  master  liable  for  such  an  act,  a  special  authority  from 
the  master  must  be  proved,  which  cannot  be  done  in  this  case.  It 
was  not  here  put  to  the  jury  whether  the  defendant's  driver  did 
the  act  in  "  pursuance  "  of  his  employment 


R.  C.  VOL.  XVII.]       SECT.  IV.  —  RESPONDEAT  SUPERIOR.  263 

Ho.  9.  —  IJmpiit  ▼.  London  General  Omnibns  Go.,  82  L.  J.  Ex.  87. 

Lush,  for  the  defendant  in  error,  the  plaintiff  below.  —  The 
direction  was  perfectly  right  The  test  in  these  cases  is,  whether 
the  servant  in  doing  what  he  did  lost  sight  of  his  character  as 
servant  and  the  duty  he  had  to  perform,  and  did  the  act  not  for 
the  master's  interest,  but  for  his  own  purposes.  If  the  defend- 
ant's driver  had  driven  wilfully  against  the  other  omnibus,  the 
jury  could  not  have  found  that  he  did  it  in  the  course  of  his 
employment  for  the  benefit,  or  supposed  benefit,  of  his  master. 
The  object  of  the  defendants  was  to  get  as  much  traflBc  as  they 
could  upon  the  road.  The  omnibus  which  is  first  gets  the  pas- 
sengers. The  evidence  shows  that  the  pulling  across  the  road  was 
not  for  the  purpose  of  striking  or  injuring  the  plaintiff's  omnibus, 
but  to  prevent  it  passing,  and  that  the  defendants'  omnibus  might 
keep  the  lead  of  the  road.  The  fair  meaning  of  the  direction  is, 
that  the  master  would  not  be  liable  for  an  act  done  by  the  servant 
for  his  own  purposes,  but  that  he  would  be  responsible  for  an  act 
done  in  pursuance  of  his  employment  for  the  interest  of  his  master 
in  the  course  of  that  employment  This  is  correct  in  law.  A 
master  who  intrusts  a  servant  to  drive,  gives  him,  in  law,  a  cer- 
tain discretion  as  to  pace  and  manner  of  driving,  and  though  he 
adds  a  direct  injunction  to  his  servant,  for  instance,  not  to  drive 
faster  than  six  miles  an  hour,  he  will  nevertheless  be  responsible, 
if  the  servant,  by  driving  faster,  negligently  inflict  an  injury ;  for 
though  the  servant  disobeys  the  special  orders  of  his  master,  he  is 
acting  in  the  scope  and  course  of  his  employment  According  to 
the  contention  of  the  defendants,  a  master  is  never  to  be  held 
liable  for  a  wilful  illegal  act  of  his  servant  unless  a  particular 
authority  be  proved.  Lycms  v.  Martin,  which  is  relied  on  in  sup- 
port of  that  proposition,  merely  decided  that  trespass  would  not 
lie  against  the  master.  The  case  turned  on  the  form  of  action. 
It  did  not  decide  that  an  action  on  the  case  could  not  be  main- 
tained. In  Greenwood  v.  Seymour  the  master  was  held  liable  for 
the  wilful  illegal  act  of  his  servant  He  referred  to  Kyle  v. 
Jeffries,  3  Macq.   611,  as  to  the  form  of  the  exceptions. 

Mellish  replied.  Cur.  adv.  mUt 

Their  Lordships  (Jime  25)  delivered  their  judgments  as  fol- 
lows :  — 

WiGHTMAN,  J.  — It  appears  by  the  evidence  in  this  case  that  the 
defendants  were  the  proprietors  of  an  omnibus  plying  between 


264  MASTER  AND  SERVANT. 


Ho.  9.  — Limpus  ▼.  London  General  Onmilrae  Go.,  82  L.  J.  Ex.  87,  88. 

Piccadilly  and  Kensington,  which  at  the  time  in  question  was 
driven  by  a  coachman  in  their  service ;  that  whilst  upon  the  road 
in  the  course  of  his  employment  to  drive  the  defendants'  omnibus 
from  Piccadilly  to  Kensington,  he  wilfully  and  on  purpose,  and 
contrary  to  the  express  orders  of  the  defendants,  endeavoured  to 
hinder  and  obstruct  the  passage  along  the  road  of  another  omnibus 

belonging  to  the  plaintiff;  and  that  for  that  purpose  he, 
[*  38]  who  was  ahead  of  the  plaintiff's  omnibus  *  eighty  or  ninety 

yards,  slackened  his  pace  until  the  plaintiff's  omnibus 
came  up  and  was  about  to  pass,  and  that  then  he  purposely  pulled 
across  the  road  in  order  to  prevent  and  obstruct  his  progress,  and 
that  in  so  doing  he  ran  against  one  of  the  plaintiff's  horses  with 
his  (the  defendants')  omnibus,  thereby  causing  considerable 
damage.  The  reasons  assigned  by  the  defendants'  coachman  for 
this  wrongful  proceeding  was,  that  he  pulled  across  the  plain- 
tiff's coachman  to  keep  him  from  passing,  in  order  to  serve  him 
(the  plaintiff's  coachman)  as  he  had  served  him  (the  defendants* 
coachman).  It  seems  to  me  clear  upon  the  evidence,  that  this 
was  only  a  wilful  and  unjustifiable  act  on  the  part  of  the  defend- 
ants' coachman,  and  not  in  the  lawful  prosecution  of  his  master's 
business.  A  master  is  undoubtedly  responsible  for  any  damage 
occasioned  by  the  negligence  or  carelessness  of  his  servant  whilst 
employed  upon  his  master's  business.  In  the  present  case  it  was 
no  part  of  the  defendants'  driver's  employment  to  obstruct  or 
hinder  the  passing  of  other  omnibuses  or  carriages ;  on  the  con- 
trary, he  was  directed  not  to  do  so.  The  case  appears  to  me  to 
fall  within  the  principle  of  the  decision  in  the  case  of  Crofi  v. 
AlisoTiy  cited  on  the  argument  In  that  case  the  Court  said  that 
the  distinction  was  this,  that  "  if  a  servant  driving  a  carriage,  in 
order  to  effect  some  purpose  of  his  own,  wantonly  strike  the 
horses  of  another  person,  and  produce  the  accident,  the  master 
will  not  be  liable.  But  if,  in  order  to  perform  his  master's 
orders,  he  strike,  but  injudiciously,  and  in  order  to  extricate  him- 
self from  a  diflSculty,  that  will  be  negligent  and  careless  conduct, 
for  which  the  master  will  be  liable,  being  an  act  done  in  pursu- 
ance of  the  servant's  employment."  In  the  case  of  Li/ons  v. 
Martin,  Patteson,  J.,  in  his  judgment  says:  "  Brucker  v. 
Fromont,  6  T.  R  658  (3  R  R  303),  and  other  cases  where  the 
master  has  been  held  liable  for  the  consequences  of  a  lawful  act 
negligently  done  by  his  servant,  do  not  apply.     Here  the  act  was 


B.  a  VOL.  XVII.]        SECT.  IV.  — RESPONDEAT  SUPERIOR.  265 

Ho.  9.  —  Ilmpiis  V.  Londoa  Oaunl  Omnilroi  Co.,  82  L.  J.  Ex.  88,  89. 

utterly  unlawful.  A  master  is  liable  where  a  servant  causes 
injury  by  doing  a  lawful  act  negligently,  but  not  where  he  wil- 
fully does  an  illegal  one. "  There  are  other  cases,  some  of  which 
were  cited  upon  the  argument,  to  the  same  effect  In  the  present 
case  the  defendants'  coachman  wilfully  did  an  illegal  act  contrary 
to  his  master's  orders,  and  quite  beyond  the  scope  of  his  employ- 
ment In  this  view  of  the  case  it  appears  to  me  that  if  the 
evidence  of  the  defendants'  coachman  was  believed  as  well  as  that 
of  the  other  witnesses  in  the  case,  the  verdict  ought  to  have  been 
for  the  defendants.  The  question,  however,  before  us  is,  whether 
the  direction  of  the  learned  Judge  to  the  jury,  as  it  appears  upon 
the  bill  of  exceptions,  was  right  in  point  of  law  upon  the  case  as 
it  appears  in  evidence.  I  entertain  the  very  highest  and  most 
sincere  respect  for  the  opinion  of  my  Brother  Martin,  but  it  does 
appear  to  me  that  the  mode  in  which  the  questions  were  put  to  the 
jury  was  such  as  might  mislead  them,  and  induce  them  to  find 
that  verdict,  which  I  cfumot  but  think  was  wrong.  He  appears  to 
have  told  them  "  that  if  the  act  of  the  defendants'  driver  in  driv- 
ing, as  he  did,  across  the  road  to  obstruct  the  plaintiff's  omnibus, 
although  a  reckless  driving  on  his  part,  was,  nevertheless,  an  act 
done  by  him  in  the  course  of  his  service,  and  to  do  that  which  he 
thought  best  to  suit  the  interests  of  his  employers,  and  so  to 
interfere  with  the  trade  and  business  of  the  plaintiff's  omnibus, 
the  defendants  were  responsible;  and  that  the  liability  of  the 
master  depended  upon  the  acts  and  conduct  of  the  servant  in  the 
course  of  the  service  and  employment,  and  that  the  instructions 
given  to  the  coachman  [not  to  obstruct  another  omnibus  or  hinder 
or  annoy  the  driver  in  his  business]  were  immaterial. "  It  cer- 
tainly appears  to  me  that  the  wilfully  and  wrongfully  attempting 
to  obstruct  the  progress  of  another  omnibus  contrary  to  the  express 
directions  of  the  defendants,  though  done  by  their  coachman  whilst 
employed  in  their  service,  cannot  be  considered  an  act  done  by 
him  in  the  course  of  his  service.  It  was  quite  beside  the  course 
of  the  service  in  which  he  was  employed ;  and  I  cannot  consider 
that  the  express  prohibition  to  the  coachman  to  do  what  he  did 
was  immaterial  in  considering  what  was  the  course  of  his  service 
in  that  respect  This  was  not  a  case  of  reckless  or  careless  driv- 
ing, but  a  wilfully  and  wrongfully  attempting  to  obstruct 
the  passage  of  another  omnibus,  *  and  in  so  doing  running  [*  39] 
against  one  of  the   horses.     This  cannot,  I   think,  under 


266  MASTER  AND  SERVANT. 


Ho.  9.  —  limpus  ▼.  London  General  Omnilrae  Go.,  82  L.  J.  Ex.  89. 

the  circumstances,  be  considered  as  an  act  done  in  the  course  of 
his  service,  even  though  the  coachman  might  think  it  for  his 
master's  interest  by  such  wrongful  means  to  obstruct  the  business 
of  another  omnibus.  The  defendants'  coachman  was  not  employed 
to  obstruct  or  hinder  the  plaintiff's  omnibus,  nor  was  it  in  the 
course  of  his  service,  in  the  proper  sense,  to  do  so.  Upon  the 
evidence  it  was  certainly  his  own  wrongful  and  wilful  act,  for 
which  I  think,  according  to  the  distinction  taken  in  the  cases  to 
which  I  have  referred,  the  defendants  are  not  responsible.  The 
jury,  upon  the  direction  to  which  I  have  referred,  might  well 
have  thought  that  if  the  act  was  done  during  the  time  that  the 
defendants'  coachman's  employment  was  to  drive  their  omnibus, 
and  he  thought  it  for  their  benefit  to  obstruct  the  other  omnibus, 
the  defendants  would  be  liable.  This,  I  think,  was  wrong,  for 
the  reasons  I  have  given ;  and  I  am  of  opinion  that  there  should 
be  a  venire  de  twvo. 

Williams,  J.  —  I  am  of  opinion  that  the  judgment  should  be 
affirmed.  If  a  master  employs  a  servant  to  drive  and  manage  a 
carriage,  the  master  is,  in  my  opinion,  answerable  for  any  mis- 
conduct of  the  servant  in  driving  or  managing  it,  which  can  fairly 
be  considered  to  have  resulted  from  the  performance  of  the  func- 
tions intrusted  to  him,  and  especially  if  he  was  acting  for  his 
master's  benefit,  and  not  for  any  purpose  of  furthering  his  own 
interest,  or  for  any  motive  of  his  own  caprice  or  inclination.  I 
think  the  summing  up  of  my  Brother  Martin  was  substantially 
in  accordance  with  this  doctrine,  and  therefore  that  there  is  no 
foundation  for  the  appeal. 

Crompton,  J.  —  I  must  say  that  my  mind  has  fluctuated  very 
much  during  the  course  of  the  discussion.  I  at  first  rather  felt 
inclined  to  take  the  view  my  Brother  Wightman  has  expressed  at 
length;  but  my  present  impression  is  in  favour  of  that  of  my 
Brother  Williams,  that  this  may  be  taken  to  be  an  act  done  in  the 
course  of  the  management  and  driving  of  this  omnibus.  I  do  not 
quite  follow  my  Brother  Wightman's  statement  in  one  respect  —  a 
statement  for  which  he  has  the  authority  of  Patteson,  J.,  as  to 
its  being  necessarily  a  lawful  act  done  by  the  servant  to  render  the 
master  responsible,  because  I  think  the  later  cases  tend  to  show 
that  it  need  not  be  a  lawful  act;  but  still  my  doubt  has  been 
whether  my  Brother  Wightman's  view  is  not  right  as  to  whether 
this  was   an   act  done  within  the  scope  of  the  authority  of  the 


B.  C.  VOL.  XVII.]      SECT.  IV.  —  RESPONDEAT   SUPERIOR.  267 

Ho.  9.  — Limpni  ▼.  Londaa  Qenenl  OmnilniB  Go.,  82  L.  J.  Ex.  39,  40. 


coachman;  in  other  words,  whether  it  was  in  the  course  of  the 
management  or  driving  of  the  omnibus.  Now  the  coachman  says 
that  he  was  driving  this  omnibus  for  a  proper  object,  but  that  he 
was  driving  it  in  an  improper  way;  and  I  think,  on  the  evidence, 
it  may  be  fairly  taken,  that  without  intending  to  touch  the  plain- 
tiff's horses  or  to  drive  against  them,  he  did  drive  so  near,  for 
the  purpose  of  crossing  them,  that  that  caused  the  accident.  It  is 
not  necessary  to  go  so  far  as  to  say  what  would  have  been  the  case 
if  the  defendants'  coachman  had  used  his  omnibus  entirely  to 
block  up  and  had  blocked  up  the  passage,  though  I  am  not  sure 
that  that  act  would  not  have  been  within  the  management.  It 
may  be  that  if  this  had  been  a  question  of  a  rule  for  a  new  trial, 
I  should  have  been  very  much  inclined  to  agree  with  my  Brother 
WiGHTMAN.  The  matter  might  have  been  presented  in  a  way 
which  might  have  brought  the  exact  question  more  clearly  before 
us,  as  it  is  possible  that  some  expressions  may  have  led  the  jury 
to  a  wrong  conclusion.  But  I  do  not  think  that  that  is  the 
question.  The  question  is,  whether  there  is  any  exception  taken, 
to  show  that  the  ruling  was  wrong  in  point  of  law.  Throughout 
his  summing  up  the  learned  Judge  put  it  to  the  jury  to  decide 
whether  the  act  was  done  in  the  course  of  the  service,  and  for  the 
master's  purpose.  And  that  is  really  the  criterion,  as  I  think  my 
Brother  Williams  has  rightly  taken  it,  whether  it  was  done  by 
the  servant  in  the  course  of  his  service  and  for  the  master's  pur- 
poses, and  not  for  his  own  particular  purposes.  I  cannot  say  there 
is  anything  distinctly  and  necessarily  wrong  in  the  ruling  of  my 
Brother  Martin  which  is  excepted  to.  Therefore,  though  with 
considerable  doubt,  I  think  that  we  ought  not  to  overturn  or 
reverse  the  judgment  of  the  Court  below,  founded  upon  his 
ruling. 

WiLLES,  J.  —  I  am  of  opinion  that  the  judgment  ought  to  be 
affirmed.  It  appears  to  me  that  the  direction  given  by 
*  my  Brother  Martin  at  the  trial  was  a  direction  which  is  [*  40] 
in  accordance  with  principle,  and  which  is  sanctioned  by 
authority.  It  is  perfectly  well  known  that  there  is  no  remedy 
whatever  against  a  driver  of  an  omnibus,  and  therefore  it  is  neces- 
sary that  for  what  the  driver  of  an  omnibus  does  in  the  course  of 
his  master's  service,  the  master  should  answer.  There  should  be 
some  person  who  is  capable  of  paying  damages,  and  who  may  be 
sued  by  people  who  are  injured  by  improper  driving.     It  appears 


268  MASTER  AND   SEBVANT. 


Ho.  9.  —  Umpni  ▼.  LoncUm  General  Omnilrae  Co.,  82  L.  J.  Ex.  40. 

clearly  to  me  that  this  was  (and  it  was  treated  by  my  Brother 
Martin  as)  a  case  of  improper  driving,  and  not  a  case  in  which 
the  servant  did  anything  altogether  inconsistent  with  the  discharge 
of  his  duty  to  his  master  and  out  of  the  course  of  his  employment 
—  a  fact  upon  which  it  appears  to  me  that  the  case  turns.  This 
omnibus  of  the  defendants  was  driven  in  before  the  omnibus  of 
the  plaintiff.  Now  of  course  one  may  say  that  it  is  no  part  of  the 
duty  of  a  servant  to  obstruct  another  omnibus,  and  that  in  this 
case  the  servant  had  distinct  orders  not  to  obstruct  the  other 
omnibus.  I  beg  to  say,  in  my  opinion  those  instructions  were 
perfectly  immaterial.  If  they  were  disregarded,  the  law  casts 
upon  the  masters  the  liability  for  the  acts  of  his  servants  in  the 
course  of  his  employment,  and  the  law  is  not  so  futile  as  to  allow 
the  master,  by  giving  secret  instructions  to  a  servant,  to  set  aside 
his  liability.  I  hold  it  to  be  perfectly  immaterial  that  the 
masters  directed  the  servant  not  to  do  the  act  which  he  did.  As 
well  might  it  be- said  that  if  a  master  employing  a  servant  told 
him  that  he  should  never  break  the  law,  he  might  thus  absolve 
himself  from  all  liability  for  any  act  of  the  servant,  though  in 
the  course  of  the  employment  But  there  is  another  construction 
that  may  be  put  upon  the  act  of  an  omnibus-driver  in  cutting  in 
before  another  omnibus,  and  it  is  this,  that  he  intended  to  get 
before  it  That  clearly  was  an  act  in  the  course  of  the  employ- 
ment He  was  employed  not  only  to  drive  the  omnibus,  which 
alone  would  be  suflBcient  to  uphold  this  summing  up,  but  also  to 
get  as  much  money  for  his  master  as  he  could,  and  to  do  it  in 
rivalry  with  other  omnibuses  driving  along  the  road.  It  is  not 
shown  that  the  act  of  driving  before  the  other  omnibus  was  incon- 
sistent with  the  employment,  when  it  is  capable  of  being  explained 
by  the  desire  to  get  before  the  other  omnibuses  in  the  course  of 
the  traflBc.  I  do  not  speak  without  authority  when  I  treat  that  as 
the  proper  test,  because  I  take  the  ordinary  case  of  the  master  of 
a  vessel,  who,  it  must  be  assumed,  is  not  instructed  to  do  that 
which  is  unlawful,  and  who  receives  distinct  instructions  not  to 
sell  the  cargo  under  any  circumstances  whatever ;  if  the  master  in 
the  course  of  his  employment  does  necessarily  sell  a  portion  of  the 
cargo  under  circumstances  not  altogether  inconsistent  with  the 
master's  employment,  the  shipowner  is  liable  in  damages  to 
the  person  whose  goods  have  been  so  sold.  It  appears  to  me, 
therefore,  that  the  summing  up  is  in  accordance  with  the  prin- 


K.  C.  VOL.  XVII.]        SECT.  IV.  —  RESPONDEAT  SUPERIOR.  269 

Ho.  9.  —  LimpYUi  v.  London  General  OmnibYU  Co.,  32  L.  J.  Sz.  40,  41. 

ciple  that  the  master  should  be  liable  for  the  acts  done  by  the  ser- 
vant in  the  course  of  his  employment  And  it  is  also  consistent 
with  authority.  I  need  do  no  more  than  refer  to  the  authority  of 
Lord  Holt,  in  Turberville  v.  Stamp,  1  Ld.  Raym.  264,  and  the 
authority  of  Lord  Wensleydale  in  Huzzey  v.  Field,  2  Cr. ,  M.  & 
R  432,  4  L  J.  (N.  S.)  Ex.  239.  It  is  part  of  the  history  of  the 
law,  that  the  judgment  delivered  by  Lord  Abinger,  and  appar- 
ently his,  was  a  judgment  prepared  by  Lord  Wensleydale  :  and 
there,  in  Cr. ,  M.  &  R. ,  p.  440,  that  learned  person  lays  down  that 
the  proper  question  for  the  jury  to  determine  is,  whether  what 
was  done  was  in  the  course  of  the  employment,  and  for  the  benefit 
of  the  master.  These  are  the  terms  in  which  the  learned  Judge 
laid  down  the  law  in  the  present  case ;  and  it  appears  to  me,  in  so 
laying  down  the  law,  he  was  strictly  accurate,  as  I  feel  bound  to 
say,  because  it  is  the  interest  of  every  person  who  has  to  deal 
with  servants,  and  is  liable  to  be  injured  by  them,  that  he  should 
not  be  left  without  remedy  by  the  law  being  loosely  administered. 
I  do  not  entertain  a  doubt  but  that  the  direction  was  perfectly 
correct 

Byles,  J.  — I  also  am  of  opinion  that  my  Brother  Martin's 
direction  in  this  case  was  correct.  He  uses  the  words  "  in  the 
course  of  his  employment,"  which,  as  my  Brother  Willes  has 
pointed  out,  are  expressions  directly  justified  by  the  deci- 
sions. His  direction,  as  I  understand  it,  amounts  to  *  this,  [*  41] 
that  if  a  servant  acts  in  the  prosecution  of  his  master's  busi- 
ness with  the  intention  of  benefiting  the  master,  and  not  to  benefit 
or  gratify  himself,  then  the  master  is  responsible,  although  it  were 
in  one  sense  a  wilful  act  on  the  part  of  the  servant  Now,  it  is 
said  that  this  was  contrary  to  the  master's  instructions.  That 
might  be  said  in  ninety-nine  cases  out  of  one  hundred,  where 
actions  are  brought  against  the  master  to  recover  damages  for  the 
reckless  driving  of  a  servant.  It  is  said  that  it  was  an  illegal 
act  So  in  almost  every  case  of  an  action  against  a  master  for  the 
negligent  driving  of  a  servant,  an  illegal  act  is  imputed  to  the 
servant  And  that  this  direction  is  right  seems  to  me  to  be 
proved  from  another  consideration.  If  we  were  to  hold  that  this 
direction  was  wrong,  a  change,  of  course,  at  Nisi  Prius  would 
follow,  and  the  consequence  would  be  that  in  almost  every  case  a 
driver  would  come  forward  and  exaggerate  his  own  negligence 
or  misconduct,  he  not  being  worth  one  farthing,  and  say,  "  I  did 


270  MASTER  AND   SEKVANT. 


Ho.  9.  —  Limpni  v.  London  General  Omnilras  Co.,  32  L.  J.  Ez.  41. 

it  wilfully  and  unnecessarily,"  and  so  the  master  would  be 
absolved.  Looking  at  what  is  a  reasonable  direction  in  the  com- 
mon understanding  of  the  law,  as  well  as  what  has  been  held 
before,  I  think  this  direction  was  perfectly  correct. 

Blackburn,  J.  —  I  am  also  of  opinion  that  the  direction  excepted 
to  is  a  sufi&cient  direction  to  have  given  to  the  jury  a  proper  guide 
in  the  particular  case,  which  is  all  that  a  learned  Judge  in  direct- 
ing a  jury  is  called  upon  to  do.  It  is  agreed  upon  by  all  (I  do 
not  think  there  is  any  difference  of  opinion  upon  that)  that  a 
master  is  responsible  for  the  improper  act  of  his  servant,  even  if 
it  be  wilful,  reckless,  or  improper,  provided  the  act  is  the  act  of 
the  servant  in  the  scope  of  his  employment,  and  in  executing  the 
matter  for  which  he  was  engaged  at  the  time.  In  the  present^ 
case,  the  learned  Baron,  in  directing  the  jury,  tells  them  that, 
and  tells  them  that  perfectly  accurately ;  but  that  alone  would  not 
have  guided  the  jury,  or  assisted  them  in  determining  the  case. 
It  was,  therefore,  right  that  he  should  go  on  to  give  the  jury  a 
sufi&cient  guide  for  the  purpose  of  enabling  them  to  understand 
what  were  the  principles  which  they  were  to  apply,  in  order  to  see 
whether  the  act  was  done  in  the  course  of  the  employment  of  the 
servant  on  this  particular  occasion.  It  is  upon  that  part  of  the 
summing  up  that  Mr.  Mellish,  in  arguing  here  against  the  direc- 
tion, has  principally  pointed  his  argument,  saying,  it  gave  the  jury 
a  wrong  guide  in  the  particular  case.  Now,  we  must  look  to 
what  the  particular  employment  was,  in  order  to  see  what  was  the 
meaning  that  was  said  to  be  understood  by  the  jury  in  reference 
to  the  particular  act  in  the  particular  case  before  •them.  The 
defendants'  servant  was  employed  as  the  driver  of  an  omnibus, 
and  as  such  the  scope  of  his  employment  was,  not  merely  to  carry 
the  omnibus  from  one  terminus  to  the  other,  but  to  guide  it  and 
to  stop  it,  and  to  use  it  in  every  way  that  would  be  right  and 
proper,  exercising  his  discretion  for  the  picking  up  of  trafl&c,  and 
forwarding  his  master's  interests  in  the  trade.  During  the  course 
of  such  a  drive  the  driver  of  the  omnibus  cut  in  before  another 
omnibus  under  circumstances  from  which  the  jury  might  have 
thought  that  he  did  it,  not  at  all  to  further  his  master's  interests, 
but  for  the  purpose  of  wreaking  a  private  spite  against  the  driver 
of  a  rival  omnibus,  so  doing  an  act  quite  unconnected  with  his 
service  and  employment.  The  learned  Judge,  having  to  tell  the 
jury  what  was  the  test  by  which  they  would  know  whether  it  was 


R.  0.  VOL.  XVII.]      SECT.  IV.  — RESPONDEAT  SUPERIOR.  271 

Vo.  9.  —  lompos  y.  Londoa  General  QmxdbYUi  Co.,  32  L.  J.  Ex.  41,  42. 

in  the  service  or  not,  used  language  that  has  been  criticised  in 
the  course  of  the  argument,  in  which  he  tells  them,  and  perfectly 
rightly,  that  if  it  was  done  in  the  scope  of  the  servant's  employ- 
ment in  the  course  of  the  service,  the  defendant  would  be  respon- 
sible ;  and  he  says,  **  That  if  the  jury  believed  that  the  real  truth 
of  the  matter  was  that  the  defendant's  driver,  being  dissatisfied 
and  irritated  with  the  plaintiff's  driver,  whether  justly  or  unjustly, 
by  reason  of  what  had  occurred,  and  in  that  state  of  mind  acted 
carelessly,  recklessly,  wantonly,  and  improperly,  but  in  the  course 
of  his  service  and  employment,  and  doing  that  which  he  believed 
to  be  for  the  interest  of  the  defendants,  then  the  defendants  were 
responsible  for  the  act  of  their  servant "  Now  it  is  perfectly 
correct,  what  Mr.  Mellish  said,  that  it  is  not  by  any  means 
universally  true,  that  every  act  supposed  to  be  done  for  the 
interest  of  the  master  is  done  in  the  course  of  his  employment. 
A  footman  might  think,  and  rightly,  that  it  was  for  the 
interest  of  *his  master  that  he  should  get  on  the  box  and  [*42] 
drive  the  coach ;  but  no  one  would  say  that  to  do  so  was  in 
the  scope  of  the  footman's  employment,  and  that  the  master  was 
responsible  for  the  wilful  act  of  the  footman  in  taking  charge  of 
the  horses.  But  when  you  take  it  in  relation  to  such  a  case  as 
this,  where  the  driver  driving  an  omnibus  cuts  in  before  a  rival 
omnibus,  I  think  the  test  thus  given  by  the  learned  Judge  to  the 
jury  was  a  perfectly  sufficient  guide  to  enable  them  tp  see  whether 
the  particular  act  was  done  in  the  course  of  the  employment  He 
then  goes  on  to  say,  if  that  were  so,  it  was  utterly  immaterial 
if  the  driver  did  it  contrary  to  instructions  given  by  the  master. 
I  believe  we  are  all  perfectly  agreed  that  as  to  that  point  the 
direction  was  quite  unimpeachable.  He  then  proceeds  at  the 
end  of  his  direction  to  some  questions  that  might  have  occurred 
to  the  jury,  and  to  point  out  that  if  they  were  of  opinion  that  the 
true  character  of  the  act  of  the  defendants'  servant  was,  that  it 
was  an  act  of  his  own,  that  he  did  this  act  not  in  consequence  of 
his  desire  to  further  the  interests  of  his  employers,  but  that  he 
did  it  entirely  of  his  own  act,  and  as  master  of  his  own  acts,  then 
the  defendants,  his  masters,  were  not  responsible.  That  meets 
the  case  I  have  already  alluded  to ;  if  the  jury  came  to  the  con- 
clusion that  he  did  it,  not  to  further  his  masters'  interests,  not  in 
the  course  of  his  employment  as  an  omnibus  driver,  but  from 
private  spite,  with  an  object  to  injure  his  enemy,  who  may  be 


272  MASTER  AND   SERVANT. 

Hos.  8,  9.  —  Mitchell  y.  Grawweller ;  LimpYui  y.  London  General  Omnibae  Go.  —  Hotel. 

supposed  to  be  the  driver  of  the  rival  omnibus,  that  would  be  out 
of  the  course  of  his  employment.  This  seems  to  me  to  cure  all 
possible  objections,  and  to  meet  the  suggestion,  that  the  jury  may 
possibly  have  been  misled  by  the  previous  part  of  the  summing 
up.  Under  the  circumstances,  I  am  of  opinion  that  the  direction 
was  sufficiently  accurate  to  guide  the  jury,  and,  consequently, 
that  there  should  be  no  venire  de  novo. 

Judgment  affirmed. 

ENGLISH  NOTES. 

It  was  at  one  time  a  matter  of  importance  to  consider  whether  the 
master  should  be  sued  in  trespass  or  case  for  a  tort  committed  by  his 
servant.  Morley  v.  Gaisford  (1795),  2  H.  Bl.  441,  3  R.  R.  432;  Mo 
Manus  v.  Crickett  (1800),  1  East,  106,  6  R.  R.  618;  Gregory/  v.  Fiper 
(1829),  9  B.  &  C.  591,  33  R.  R.  268. 

The  rule  must  be  read  subject  to  the  limitation  in  Gregory/  v.  Piper, 
supra,  that  if  the  servant  is  acting  in  obedience  to  the  express  orders 
of  his  master,  the  latter  mast  be  held  to  have  contemplated  the  neces- 
sary or  obvious  consequences  of  obeying  the  order.  An  analogous  de- 
cision was  come  to  in  Betts  v.  De  Vitre  (1868),  L.  R.  3  Ch.  429,  37  L. 
J.  Ch.  325.  There,  in  defence  to  an  action  for  infringing  a  patent,  it 
was  contended  that  the  infringement,  if  any,  was  contrary  to  the 
express  orders  of  the  directors  of  a  company;  and  that  the  directors 
were  not  personally  liable.  This  contention  was  overruled*  Lord 
Chelmsford,  L.  C,  in  his  judgment  observed:  '*  Those  who  have  the 
control  of  the  jsvorking-men  are  responsible  for  the  acts  of  their  sub- 
ordinates, and  it  is  not  sufficient  for  them  to  order  that  the  work  shall 
be  so  done  that  no  injury  shall  be  occasioned  to  any  third  person  .  .  . 
the  defendants  were  bound  to  take  care  that  their  orders  were  obeyed; 
and  if  there  was  a  violation  of  them,  whether  openly  or  secretly,  they 
are  liable  for  the  consequences.' ' 

It  may  be  stated  as  a  general  proposition  that  the  master  is  not  re- 
sponsible criminally  for  the  act  of  his  servant.  Criminal  responsibility 
depends  as  a  rule  on  the  presence  of  a  mens  rea.  See  Iteg,  v.  Tolson  (C. 
C.  R.  1889),  8  R.  C.  16,  23  Q.  B.  D.  168,  58  L.  J.  M.  C.  97.  This 
may  be  implied  from  the  circumstances.  The  rule  respecting  the  crim- 
inal responsibility  of  the  master  seems  to  rest  on  this,  that  if  his  order 
may  be  executed  in  an  innocent  and  proper  manner,  he  is  not  liable: 
but  if  it  may  only  be  executed  in  such  a  way  as  to  involve  a  criminal 
act,  he  is  liable.  Peachey  v.  Rowland  (1853),  13  C.  B.  182,  22  L.  J. 
C.  P.  81;  Reg.  v.  Stephens  (1866),  L.  R.  1  Q.  B.  702,  35  L.  J.  M.  C. 
251,  14  L.  T.  693,  14  W.  R.  859.  The  criminal  responsibility  of  a 
master  for  libel  is  now  assimilated  to  the  general  law.     Reg,  v.  Eol- 


B.  C.  VOL.  XVIL]      sect.  IV.  —  RESPONDEAT  SUPERIOR.  273 

Vol.  8, 9.  —  Mitohell  v.  CrassweUer ;  Umpos  v.  London  General  Omnilras  Co.  —  Hotai. 

brook  (1878),  4  Q.  B.  D.  42,  48  L.  J.  Q.  B.  113,  39  L.  T.  636,  27  W, 
E.  313.  The  case  of  Rex  v.  Dixon  (1814),  3  M.  &  S.  11,  4  Camp.  12, 
15  E.  E.  381 ;  when  attentively  perused,  will  be  found  not  to  conflict 
with  this  view.  That  was  an  indictment  at  common  law  for  selling 
bread  mixed  with  alum.  There  the  person  who  was  responsible  for 
the  making  and  the  selling  of  the  bread  was  the  defendant's  foreman. 
It  is  clear  from  the  report  of  the  proceedings  at  the  trial  that  the  ques- 
tion was  left  to  the  jury  in  such  a  form  that  one  issue  presented  to 
them  was  whether  the  defendant  knew  that  alum  was  being  used  in  pre- 
paring the  bread.  The  judgment,  in  effect,  was,  that  if  the  defendant 
knew  that  the  alum  was  being  used,  then  a  duty  was  cast  upon  him  to 
see  that  the  alum  was  not  introduced  in  such  large  quantities  as  to  be 
injurious  to  health.  The  case  was  followed,  as  in  point,  in  an  infor- 
mation for  penalties  for  breach  of  the  revenue  laws.  Attorney- General 
V.  Siddon  (1830),  1  Cr.  &  J.  220,  1  Tyrwh.  41,  35  E.  E.  701.  There 
a  revenue  officer  had  found  some  tobacco  concealed  in  a  cellar.  The 
servant  thereupon  stated  that  he  had  a  permit,  but  that  it  was  locked 
up  in  a  desk  of  which  he  had  not  the  key.  The  servant  then  procured 
a  permit,  which  did  not  tally  with  the  facts  or  the  dates.  The  master 
was  held  liable  for  a  penalty  attached  to  the  offence  of  unduly  using  a 
permit.  In  the  course  of  the  judgments,  the  Judges  of  the  Court  of 
Exchequer  stated  that  the  proceedings  were  not  criminal,  but  penal. 
In  Coleman  v.  Riches  (1855),  16  C.  B.  104,  24  L.  J.  C.  P.  125,  — 
where  a  wharfinger  was  charged  on  a  receipt  fraudulently  given  by  his 
agent  for  goods  which  had  not  been  received, — these  two  last-men- 
tioned cases  were  distinguished,  and  considered  to  have  been  decided 
on  the  ground  that  the  servant  might  on  the  evidence  be  presumed  to 
have  acted  within  the  authority  given  by  the  master. 

The  master  is  liable  civilly  for  the  tortious  act  of  a  servant  in  the 
course  of  his  employment,  although  the  act  amounts  to  a  criminal 
offence,  and  the  servant  has  been  punished  for  the  crime.  Dyer  v. 
Munday  (C.  A.)  1895,  1  Q.  B.  742,  64  L.  J.  Q.  B.  448,  72  L.  T.  448, 
43  W.  E.  440. 

The  master  has  been  held  liable  for  the  acts  of  a  servant  in  cases  of 
assault  and  false  imprisonment:  Eastern  Counties  Railway  Co.  v. 
Broom  (Ex.  Ch.  1851),  6  Ex.  314,  20  L.  J.  Ex.  196,  15  Jur.  297 ;  and 
malicious  prosecution:  Rayson  v.  South  London  Tramways  Co.  (C. 
A.),  1893,  2  Q.  B.  304,  62  L.  J.  Q.  B.  593,  69  L.  T.  491,  42  W.  E. 
21 ;  also  for  the  use  of  excessive  violence  by  the  servant :  Greenwood  v. 
Seyrhour  (Ex.  Ch.  1861),  7  Hurl.  &  N.  359,  30  L.  J.  Ex.  327;  Bayley  v. 
Manchester,  Sheffield,  &  Lincolnshire  Railway  Co.  (Ex.  Ch.  1873),  L. 
E.  8  C.  P.  148,  42  L.  J.  C.  P.  78,  28  L.  T.  366.  The  master  has  been 
held  liable  in  an  action  of  trover.     Taff  Vale  Railway  Co.  v.  Giles  (Ex. 

VOL.  XVII.  — 18 


274  MASTER  AND  SERVANT. 


Vm.  8,  9.  —  Mitchell  y.  CnuwweUer ;  Limpns  v.  London  General  Onmilras  Co.  —  Kotet. 

Ch.  1853),  2  Ell.  &  Bl.  822,  23  L.  J.  Q.  B.  43.  The  servant  of  a  cor- 
poration need  not  be  appointed  by  deed  in  order  to  render  the  corpora- 
tion liable.  Eastern  Counties  Railtoay  Co,  v.  Broom^  supra.  The 
cases  regarding  the  liability  of  masters  for  the  negligence  of  servants 
are  extremely  numerous.  The  cases  of  Morley  v.  Gaisford^  McManv^ 
V.  Crickett,  Gregory  v.  Piper,  cited  at  the  commencement  of  this  note, 
and  the  second  principal  case  sufficiently  illustrate  the  law  on  this  sub- 
ject. The  registered  owner  of  a  hackney  carriage  in  the  metropolis  is 
liable  for  the  negligence  of  the  driver  to  whom  he  has  intrusted  the 
cab,  whether  the  relation  between  the  parties  is  strictly  that  of  master 
and  servant,  or  bailor  and  bailee.  King  v.  London  Improved  Cab  Co. 
(C.  A.  1889),  23  Q.  B.  D.  281,  58  L.  J.  Q.  B.  456,  61  L.  T.  34,  37 
W.  R.  737;  Keen  v.  Henry  (C.  A.)  1894,  1  Q.  B.  292,  63  L.  J.  Q.  B. 
211,  69  L.  T.  671,  42  W.  R.  214. 

The  owner  of  land  who  authorises  operations  upon  it  which  require 
precautions  to  avoid  danger  to  a  neighbouring  owner,  is  bound  to  use 
such  precautions,  and  is  not  exonerated  by  having  employed  a  con- 
tractor to  do  the  work.  Hughes  v.  Fercival  (H.  L.  1883),  8  App.  Cas.  443, 
52  L.  J.  Q.  B.  719,  49  L.  T.  189,  31 W.  R.  725;  Black  v.  Chrut^hurck 
Finance  Co.  (P.  C),  1894,  A.  C.  48,  63  L.  J.  P.  C.  32,  70  L.  T.  77. 

The  liability  of  a  person  for  the  acts  of  another,  who  has  given  his 
services  either  to  assist  the  servants  or  to  act  as  a  substitute,  have  given 
rise  to  many  questions.  A  very  recent  case  is  Givilliam  v.  Twist  (C. 
A.),  1895,  2  Q.  B.  84,  64  L.  J.  Q.  B.  474,  72  L.  T.  579,  43  W.  R.  566. 
There  the  police  refused  to  permit  a  driver  in  the  defendants'  employ 
to  drive  an  omnibus  belonging  to  the  defendants,  on  the  ground  that  he 
♦was  not  sober.  A  bystander  then  volunteered  to  drive  the  omnibus 
back  to  the  yard,  and  his  offer  was  accepted  by  the  driver  and  con- 
ductor, but  no  effort  was  made  to  communicate  with  the  proprietors. 
The  negligence  and  want  of  skill  on  the  part  of  the  volunteer  caused  in- 
juries to  the  plaintiff;  but  the  masters  were  held  not  liable,  as  there  was 
no  evidence  upon  which  it  could  be  held  that  any  necessity  to  delegate 
the  duty  of  driving  to  a  bystander  had  arisen.  In  the  course  of  his 
judgment  Lord  Esher,  M.  R.,  j^^as  disposed  to  limit  the  principle  of 
agency  of  necessity  to  those  of  the  master  of  a  ship,  of  the  acceptor  of 
a  bill  of  exchange  for  the  honour  of  the  drawer,  and  of  salvoifs.  As 
to  whether  a  person  volunteering  assistance  can  hold  the  master  respon- 
sible for  the  negligence  of  his  own  servants,  the  question  may  depend 
upon  whether  that  person  can  or  cannot  be  considered  as  being,  pro  hdo 
vice,  in  the  service  of  the  master.  If  he  is  in  the  position  of  a  servant| 
then  his  right  to  compensation  by  common  law  is  gone,  as  there  would 
be  a  common  employment ;  if  the  facts  point  to  a  contrary  conclusion, 
the  stranger  may  recover.    Potter  v.  Faulkener  (Ex.  Ch.  1861),  1  B.  & 


R.  C.  VOL.  XVII.]      SECT.  IV,  —  RESPONDEAT  SUPERIOR.  275 

Vot.  8, 9.  —  Kitehell  y.  Craaiweller ;  LimpYUi  v.  London  General  Onmibas  Co.  —  Votes. 

S.  800,  31  L.  J.  Q.  B.  30,  5  L.  T.  455,  10  W.  R.  93;  Holmes  v.  NoHh 
Eastern  Railway  Co.  (Ex.  Ch.  1871),  L.  R.  6  Ex.  123,  40  L.  J.  Ex. 
121,  24  L.  T.  69;  Wright  v,  London  and  North  Western  Railway  Co. 
(C.  A.  1876),  1  Q.  B.  D.  252,  45  L.  J.  Q.  B.  570,  33  L.  T.  830. 

Servants  have  no  general  authority  to  pledge  the  master's  credit. 
Stubbing  v.  Heintz  (1791),  1  Peake,  66,  3  R.  R.  651.  Where,  however, 
the  master  has  paid  for  goods  which  have  been  supplied  to  the  servant 
on  credit,  he  will  be  liable ;  as  an  authority  to  pledge  his  credit  with 
the  particular  tradesman  may  be  inferred.  Summers  v.  Solomon  (1857), 
7  Ell.  &  Bl.  879,  26  L.  J.  Q.  B.  301.  Where  a  person  dealing  with  a 
servant  is  entitled  to  assume  that  he  may  treat  the  servant  as  the  mas- 
ter's agent,  the  knowledge  of  the  withdrawal  of  the  authority  from  the 
servant  must  be  brought  home  to  that  person.  Summers  v.  Solomon, 
supra  ;  Gratland  v.  Freeman  (1800),  3  Esp.  85.  The  subject  of  the 
liability  of  a  master  rests  upon  the  principles  discussed  in  Whitehead 
v.  TuckeU  (1812),  2  R.  C.  357  (s.  c.  15  East,  400,  13  R.  R.  509),  and 
in  the  notes.  A  railway  company  has  been  held  liable  for  medical  ser- 
vices rendered  to  injured  passengers  at  the  request  of  a  general  man- 
ager. Walker  v.  Great  Western  Railway  Co.  (1867),  L.  R.  2  Ex. 
228,  36  L.  J.  Ex.  123,  15  W.  R.  769.  A  sub-inspector  of  railway 
police  has  been  held  entitled  to  pledge  the  credit  of  a  railway  company 
for  board,  lodging,  necessaries,  and  goods  supplied  to  injured  persons. 
Langan  v.  Great  Western  Railway  Co.  (Ex.  Ch.  1873),  30  L.  T.  173. 

AMERICAN  NOTES. 

These  cases  have  been  much  cited  in  this  country,  and  the  doctrine  in 
question  has  been  very  greatly  considered.  The  strict  reading  of  the  Rule 
has  been  considerably  departed  from  by  our  Courts,  and  a  large  degree  of 
relaxation  has  been  indulged.  "  The  course  of  the  employment "  has  proved 
an  elastic  phrase,  and  so  far  from  meaning  strictly  that  which  promotes  the 
objects  of  the  employment,  it  has  been  construed  to  mean  anything  done 
while  the  employment  is  subsisting  and  in  the  general  course  of  action  therein, 
although  it  may  be  unnecessary,  subversive,  wanton,  and  wilful,  or  even  con- 
trary to  express  orders,  so  long  as  it  is  not  done  clearly  and  exclusively  out- 
side and  independent  of  the  business  and  solely  to  gratify  the  servant's  malice. 
The  American  doctrine  is  well  expressed  in  Rounds  v.  Delaware,  ifc.  R.  Co,, 
64  New  York,  129 ;  21  Am.  Rep.  597 :  "  The  master  who  puts  a  servant  in  a 
place  of  trust  or  responsibility,  or  commits  to  him  the  management  of  his 
business  or  care  of  his  property,  is  justly  held  responsible,  when  the  servant, 
through  lack  of  judgment  or  discretion,  or  from  infirmity  of  temper,  or  un- 
der the  influence  of  passion  aroused  by  the  circumstances  and  the  occasion, 
goes  beyond  the  strict  line  of  his  duty  and  authority  and  inflicts  an  unjus- 
tifiable injury  upon  another."  The  mass  of  American  adjudication  on  this 
subject  is  immense,  but  in  1890  the  present  writer  essayed  to  state  the  sub- 


276  MASTER  AND  SERVANT. 

Ko8.  8,  9.  —  Mitohell  v.  Crasswaller ;  UmpYUi  v.  London  General  Qmnilmi  Co.  — Hotes. 

stance  of  them,  and  in  Browne  on  Domestic  Relations  (p.  139)  said :  ^*  As  to 
Negligent  Acts.  — Although  the  master  would  be  liable  for  an  injury  through 
the  negligence  of  the  driver  of  his  street  car  to  a  passenger  riding  without 
paying  fare,  by  invitation  of  the  driver  (Wilton  v,  Middlesex  R.  Co.,  107 
Massachusetts,  108;  9  Am.  Rep.  11;  Brennan  v.  Fairhaven  j*  WestvUle  R. 
Co,.,  46  Connecticut,  284;  29  Am.  Rep.  679),  because  those  in  charge  of  the 
cars  are  employed  to  solicit  passengers  and  carry  them ;  yet  he  would  not  be 
liable  for  an  injury  to  a  bystander  at  a  railway  station,  received  while  help- 
ing the  fireman  take  in  water,  at  his  request  {New  Orleans,  S^c,  R.  Co,  v. 
Harrison^  48  Mississippi,  112  ;  12  Am.  Rep.  856)  ;  nor  for  an  injury  received 
by  a  bystander  while  uncoupling  cars  at  the  conductor's  request :  (Flower  v. 
Penn.  R.  Co,,  69  Penn.  State,  210 ;  8  Am.  Rep.  251),  because  these  servants 
are  not  authorized  to  solicit  such  aid  in  their  duties.  (But  2^  passenger,  assist- 
ing the  railroad  company's  servants,  at  their  request,  and  injured  in  that  ser- 
vice»  may  recover  of  the  company.  Street  Railway  Company  v.  Bolton,  43 
Ohio  State,  224  ;  54  Am.  Rep.  803 ;  Eason  v.  Railway  Company,  65  Texas, 
577 ;  57  Am.  Rep.  606.) 

"  If  the  third  person  knows  the  servant's  act  is  contrary  to  his  employ- 
ment, he  is  without  remedy ;  as  where  he  rides  on  a  freight  train  with  the 
conductor's  assent,  knowing  it  to  be  against  the  master's  rules  or  orders : 
Houston  ir  Texas  Cent,  R,  Co,  v.  Moore,  49  Texas,  31 ;  s.  c.  30  Am.  Rep.  98; 
but  otherwise,  if  he  were  ignorant  of  the  regulations :  Creed  v.  Pennsylvania 
Railroad  Co,,  86  Penn.  State,  139 ;  s.  c.  27  Am.  Rep.  693.  Again :  the  mas- 
ter is  not  liable  if  the  servant's  act  is  so  manifestly  outside  his  employment 
as  to  carry  with  it  presumptive  notice  of  his  want  of  authority,  as  where  a 
third  person  was  permitted  by  railway  section-hands  to  ride  on  a  hand-car, 
and  there  received  injury.  Hoar  v.  Maine  Central  Railroad  Company,  70 
Maine,  65  ;  s.  c.  35  Am.  Rep.  299.  And  so  in  respect  to  acts  of  mere  passive 
negligence  resulting  in  injury  to  property,  the  master  is  not  liable  where  the 
act  cannot  under  any  circumstances  have  been  within  the  employment ;  as 
where  a  carpenter,  using  the  plaintiff's  shed  for  his  master's  work,  accident- 
ally sets  it  on  fire  in  lighting  his  pipe.  Woodman  v.  Joiner^  10  Jurist  (N.  S.), 
852 ;  Williams  v.  Jones,  3  Hurlstone  &  Coltman,  256. 

"  As  to  Wilful  Acts,  —  The  master  is  not  liable  for  a  wrongful,  wilful,  and 
unlawful  act  of  his  servant  toward  a  third  person,  although  the  servant  pro- 
fesses to  be  acting  in  the  master's 'employment,  if  the  act  is  entirely  indepen- 
dent and  outside  of,  and  having  no  proper  connection  with,  the  employment. 
McManus  v.  Crickett,  1  East,  106;  Croft  v.  Alison,  4  Barn.  &  Aid.  590.  See 
Limpus  V.  General  Omnibus  Company,  1  Hurlstone  &  Coltman,  528. 

"  To  illustrate  this  distinction  :  Suppose  it  to  be  the  duty  of  a  servant  to 
unload  a  locomotive  tender  by  throwing  the  wood  overboard,  and  in  so  doing 
he  accidentally  or  purposely  hits  and  wounds  a  bystander,  the  master  will  be 
liable.  But  if  this  unloading  were  no  part  of  his  duty  at  the  time,  and  he 
should  purposely  throw  a  stick  at  and  injure  a  bystander,  the  master  would 
not  be  liable.  So  if  a  hod-carrier,  employed  on  a  third  person's  house,  wil- 
fully bespattered  the  walls,  his  master  would  not  be  liable :  Oarvey  v.  Dung,  30 
Howard's  Practice,  315 ;  but  if  a  painter,  employed  to  paint  the  walls,  should 


lU  C.  .VOL.  XVU.]      SECT.  IV.  —  RESPONDEAT  SUPERIOR.  277 

So8.  8, 9.  —  Mitohall  y.  OniswelUr ;  UmpYUi  v.  London  G«neral  Qmxulnii  Co.  —  Hotai. 

^wilfully  bespatter  them  with  paint,  the  master  would  be  liable.  So  where  the 
crew  of  a  vessel,  without  the  master's  knowledge  or  authority,  fired  a  salute 
with  a  cannon  on  board,  and  thereby  injured  a  third  person,  the  master  was 
held  not  liable:  Haack  v.  Fearing,  4  Abbott's  Practice,  N.  S.  (N.  Y.),  297  ; 
but  if  they  had  been  instructed  to  fire  the  salute,  and  in  so  doing  had  acci- 
dentally or  purposely  inflicted  the  injury,  so  long  as  it  was  not  purely  feloni- 
ous, the  master  would  have  been  liable.  So  where  a  general  farm-servant 
undertaking  to  drive  out  a  trespassing  cow  from  his  master's  field,  struck  her 
with  a  stone  and  killed  her,  the  master  was  held  liable.  Evans  v.  Dauids&n, 
53  Maryland,  245 ;  36  Am.  Rep.  400.  And  so  where  a  toll-gate  keeper,  not 
required  to  collect  toll  after  nine  o'clock  at  night,  let  the  beam  of  the  gate 
down  upon  the  plaintiff,  who  was  endeavoring  to  pass  after  that  hour,  and  in- 
jured him,  the  company  was  held  liable.  Noblesville^  f^c,  Co.  v.  Gause,  76 
Indiana,  142 ;  40  Am.  Rep.  224.  So  where  a  ferry  pilot  took  on  a  boatman, 
agreeing  to  put  him  on  his  tow  in  the  river  without  compensation,  and  diverg- 
ing from  his  regular  course  to  do  so,  collided  with  a  canal-boat  and  killed  a 
man,  the  employer  was  held  liable.  Quinn  v.  Power,  87  N.  Y.  535;  41  Am. 
Rep.  392.  So  where  a  railway  company  had  ordered  its  gate-keepers  not  to 
allow  passengers  to  go  out  unless  they  surrendered  tickets  or  paid  fares,  and 
a  passenger  having  lost  his  ticket  refused  to  pay  his  fare,  and  the  gate-keeper 
caused  his  arrest  by  the  police,  the  company  was  held  liable.  Lynch  v.  Metro- 
politan  Elevated  Railioay  Company,  90  New  York,  77  ;  43  Am.  Rep.  141.  See 
Stewart  v.  Brooklyn  Crosstown  Railroad  Company,  90  New  York,  588;  Mulligan 
V.  New  York,  J-c.  Ry.  Co.,  129  New  York,  506;  26  Am.  St.  Rep.  539. 

"  But  in  respect  to  public  carriers  it  is  held  that  the  master  owes  the  duty 
of  protection  of  his  passengers  against  even  wanton  assaults  by  his  servants, 
entirely  disconnected  from  the  employment.  As  where  a  railway  conductor 
kissed  a  female  passenger  against  her  will :  Croaker  v.  Chicago,  {fc.  Railway 
Company,  36  Wisconsin,  657  ;  17  Am.  Rep.  504 ;  or  assaulted  a  passenger  on 
demanding  his  ticket :  Goddard  v.  Grand  Trunk  Ry.  Co.,  57  Maine,  202 ;  2  Am. 
Rep.  39;  or  brakemen  unlawfully  ejected  a  passenger  by  the  conductor's 
order:  Passenger  R.  Co.  v.  Young,  21  Ohio  State,  518;  8  Am.  Rep.  78;  or 
officers  of  a  steamboat  assaulted  a  passenger:  Bryant  v.  Rich,  106  Massa- 
chusetts, 180 ;  8  Am.  Rep.  311 ;  Sherley  v.  Billings,  8  Bush  (Kentucky),  147 ; 
8  Am.  Rep.  451 ;  or  an  engineman  maliciously  tounded  a  locomotive  whistle : 
Chicago,  Sfc.  Ry.  Co,  v.  Dickenson,  63  Illinois,  151 ;  14  Am.  Rep.  114 ;  NashvUle^ 
ire.  Ry.  Co.  V.  Stames,  9  Heiskell  (Tennessee),  52 ;  24  Am.  Rep.  296 ;  or  a 
street-car  driver  threw  one  off  the  car  platform  who  had  stepped  on  it  to  cross 
the  street:  Shea  v.  Sixth  Avenue  R.  Co.,  62  New  York,  180;  20  Am.  Rep. 
480 ;  or  a  brakeman  kicked  a  trespasser  from  the  platform  of  a  baggage  car 
in  motion  :  Rounds  v.  Delaware,  jrc  R.  Co.,  64  New  York,  129;  21  Am.  Rep. 
597 ;  Hoffman  v.  New  York,  ^c.  R.  Co.,  87  New  York,  25 ;  41  Am.  Rep.  337 ; 
or  a  brakeman  assaulted  a  passenger,  who,  resenting  the  ejection  of  his  dog 
from  a  oar,  first  laid  hands  on  the  brakeman  :  Hanson  v.  European  8f  N.  A. 
Ry  Co.,  62  Maine,  84 ;  16  Am.  Rep.  404  ;  even  for  a  malicious  and  criminal 
assault  by  the  servant  on  a  passenger  in  carrying  out  a  supposed  order  of  the 
master :  McKinley  v.  Chicago,  ffc,  Ry.  Co.,  44  Iowa,  314 ;  24  Am.  Rep.  748 ;  or 


278  ItfASTER  AND   SERVANT. 

Hoi.  8,  9.  —  Mitchell  v.  Crasiweller ;  Limpas  y.  London  Goneral  Omnibus  Co.  —  Hotes. 

when  a  passenger  accused  a  brakeman  of  having  stolen  his  watch,  and  the 
brakeman  thereupon  struck  him:  Chicago,  Sfc.  Ry,  Co.  v.  Flexman^  103  Illi- 
nois, 546 ;  42  Am.  Rep.  33 ;  or  where  the  brakeman  in  washing  out  a  car 
dii'ected  a  jet  of  water  purposely  upon  a  passenger :  Terre  Haute,  ffc.  R,  Co, 
y.  Jackson,  81  Indiana,  19.  On  the  other  hand  it  has  been  held  that  the  em- 
ployer was  not  liable  where  a  street-car  conductor  pushed  a  passenger  off  who 
was  about  to  alight.  Isaacs  v.  Third  Avenue  R.  Co.,  47  New  York,  122; 
7  Am.  Rep.  418  (substantially  overruled  by  later  cases).  So  where  a  brake- 
man  put  a  trespasser  off  a  freight  train  in  motion  without  orders  from  the 
conductor.  Marion  v.  Chicago,  ^c.  Railroad  Company,  59  Iowa,  428.  So  where 
a  baggagemaster  struck  with  a  hatchet  a  passenger  in  a  quarrel  about  bag* 
gage.  Little  Miami  Railroad  Company  v.  Wetmore,  19  Ohio  State,  110;  2  Am. 
Rep.  373.  So  where  a  railway  conductor  had  a  passenger  wrongfully  arrested 
for  giving  him  counterfeit  money  for  his  fare.  Galveston,  Sfc.  R.  Co.  v.  DonO" 
hoe,  56  Texas,  162.  And  so  where  a  railway  conductor  stopped  his  train  near 
the  plaintiff's  house,  entered  the  premises,  seized  the  plaintiff's  minor  son, 
and  carried  him  off  on  the  train  by  force.  Gilliam  v.  Southern,  Sf'c,  R.  Co.,  70 
Alabama,  268.  So  where  a  street-car  driver  followed  a  passenger  and  assaulted 
him.  Central  Railway  Corapany  v.  Peacock,  69  Maryland,  257.  And  see 
Gahriehon  v.  Way  dell,  135  New  York,  1;  Mulligan  v.  New  York,  {fc.  Ry.  Co., 
129  New  York,  506 ;  26  Am.  St.  Rep.  639 ;  Palmen  v.  Manhattan  Ry.  Co.,  133 
New  York,  261;  28  Am.  St.  Rep.  632;  Staples  v.  Schmidt,  18  Rhode  Island, 
224;  New  Orleans  ^  Northeastern  R.  Co.  v.  Jopes,  142  United  States,  18." 

"  Even  if  the  third  person  is  a  trespasser,  the  master  is  liable  for  any  ex- 
cess of  force  used  by  the  servant,  or  any  improper  execution  of  his  order ;  as 
when  an  intruder  was  pushed  off  a  train  in  a  violent  manner  at  a  dangerous 
place.  Coleman  v.  N.  Y.  Sf  N.  H.  R.  Co.,  106  Massachusetts,  160 ;  Rounds  v. 
Delaware,  J-c.  R.  Co.,  64  New  York,  129;  21  Am.  Rep.  597;  Carters.  Louis- 
mile,  ^c.  Ry.  Co.,  98  Indiana,  552 ;  49  Am.  Rep.  780. 

"  But  for  the  servant's  criminally  malicious  and  wilful  act  the  master  is 
not  liable  (Frazer  v.  Freeman,  43  New  York,  566 ;  3  Am.  Rep.  740)  ;  as  for 
an  intentional  killing  or  larceny.  Searle  v.  Parke, — New  Hampshire  —  ;  34 
Atlantic  Reporter,  744"  (but  see  Nieto  v.  Clark,  infra). 

'*  So  where  a  railroad  conductor  shoots  a  passenger  under  a  belief,  reason- 
ably warranted  by  the  passenger's  manner,  attitude,  and  conduct,  that  an 
immediate  assault  upon  him  with  a  deadly  weapon  is  intended,  the  company 
is  not  liable,  although  there  was  no  actual  danger.  Railroad  Co.  v.  Jopes,  142 
United  States,  18.  But  where  a  station  agent  shot  and  killed  a  passenger  in 
the  act  of  taking  out  his  luggage,  on  account  of  abusive  language  used  by 
the  passenger  to  the  agent,  the  jury  finding  that  the  agent  was  acting  in  the 
line  of  his  employment,  the  company  was  held  liable.  Daniel  v.  Railroad  Co., 
117  North  Carolina,  592. 

**  The  test  of  the  master^s  responsibility  is  not  whether  the  act  was  done 
according  to  his  instructions,  but  whether  it  was  done  in  the  prosecution  of 
the  business  that  the  servant  was  employed  by  the  master  to  do.  Cosgrove  v. 
Ogden,  49  New  York,  255 ;  10  Am.  Rep.  361 ;  King  v.  N.  Y.  Cent.,  fi-c.  R.  Co.^ 
66  New  York,  181 ;  23  Am.  Rep.  87.    As  where  the  superintendent  of  a  lum« 


B.  a  VOL.  XVII.]       SECT.  IV.  —  RESPONDEAT   SUPERIOR.  279 

Vo8.  8,  9.  —  IfitoheU  v.  Craaiweller ;  LimpiiB  v.  London  General  Omnibni  Co.  —  Hotes. 

ber  yard,  in  violation  of  his  employer's  direction,  piled  lumber  on  a  sidewalk, 
where  it  fell  and  injured  a  person,  the  master  was  held  liable.  Garretzen  y. 
Duenckel,  50  Missouri,  104 ;  11  Am.  Rep.  405. 

**  In  regard  to  the  matter  of  disobedience,  this  distinction  must  be  ob- 
served :  If  the  servant,  in  doing  a  particular  act  in  a  particular  manner, 
departs  from  the  appointed  mode  of  performance  to  inflict  a  wanton  injury 
on  a  third  person,  the  master  will  not  be  liable.  As  where  the  owner  of  a 
building  instructs  his  servant  to  throw  the  snow  from  the  roof  into  a  vacant 
adjoining  lot,  where  no  one  would  be  endangered,  and  the  servant,  disregard- 
ing the  direction,  carelessly  throws  it  into  the  street  and  injures  a  persoli,  the 
master  will  be  liable ;  but  if  the  servant  intentionally  threw  it  on  the  passer, 
the  master  would  not  be  liable,  for  he  had  not  engaged  the  servant  to  throw 
snow  into  the  street.     Cosgrove  v.  Ogden,  supra. 

"  If  the  master  vests  the  servant  with  any  discretion,  the  master  is  liable 
to  third  persons  for  the  consequences  of  the  servant's  abuse  or  mistake  in  its 
exercise.  Limpus  v.  Gen,  Omnihua  Co..,  1  H.  &  C.  526 ;  Chicago,  ffc.  By.  Co.  v. 
McMahon,  103  Illinois,  485 ;  42  Am.  Rep.  29  (where  a  clerk,  intrusted  with  the 
general  duty  of  gettmg  up  evidence  for  a  company  when  sued,  without  author- 
ity offers  a  bribe  to  a  hostile  witness,  evidence  of  that  fact  is  competent).*' 

Other  cases  of  master's  liability  for  acts  in  disobedience  of  his  orders  are 
Powell  V.  Deveny,  3  Gushing  (Mass.),  300;  50  Am.  Dec.  738;  International,  Sfc. 
Ry.  Co.  V.  Anderson,  82  Texas,  516 ;  27  Am.  St.  Rep.  902,  and  notes ;  McMann 
V.  Consolidated  T.  Co.,  59  New  Jersey  Law,  481 ;  McClung  v.  Dearhome,  134 
Penn.  State,  396;  19  Am.  St.  Rep.  708;  Golden  v.  Newhrand,  52  Iowa,  59; 
85  Am.  Rep.  257;  New  Orleans,  ffc.  R.  Co.  v.  Harrison,  48  Mississippi,  112; 
12  Am.  Rep.  356 ;  Louis  v.  Schultz,  98  Iowa,  341.  The  United  States  Supreme 
Court,  in  Phil.,  jrc.  R.  Co.  v.  Derby,  14  Howard,  468,  say :  "  Although  among 
the  numerous  cases  on  this  subject  some  may  be  found  in  which  the  Courts 
have  made  some  nice  distinctions,  which  are  rather  subtile  and  astute,  as  to 
when  the  servant  may  be  said  to  be  acting  in  the  employ  of  his  master,  yet 
we  find  no  case  which  asserts  the  doctrine  that  a  master  is  not  liable  for  the 
acts  of  a  servant  in  his  employment,  when  the  particular  act  of  causing  the 
injury  was  done  in  disregard  of  the  general  orders  or  special  command  of  the 
master.  Such  a  qualification  of  the  maxim  respondeat  superior  would  in  a 
measure  nullify  it.  A  large  proportion  of  the  accidents  on  railroads  are 
caused  by  the  negligence  of  the  servants  or  agents  of  the  company.  Nothing 
but  the  most  stringent  enforcement  of  discipline,  and  the  most  exact  and 
perfect  obedience  to  every  rule  and  order  emanating  from  a  superior,  can 
insure  safety  to  life  and  property.  The  intrusting  such  a  powerful  and  danger- 
ous engine  as  a  locomotive  to  one  who  will  not  submit  to  control  and  render 
implicit  obedience  to  orders  is  itself  an  act  of  negligence,  —  the  causa  causans 
of  the  mischief,  —  while  the  proximate  cause,  or  the  ipsa  negligentia  which 
produces  it,  may  truly  be  said  in  most  cases  to  be  the  disobedience  of  orders 
by  the  servants  so  intrusted.  If  such  disobedience  could  be  set  up  by  a  rail- 
road company  as  a  defence,  when  charged  with  negligence,  the  remedy  of  the 
injured  party  would  in  most  cases  be  illusive,  discipline  would  be  relaxed, 
and  the  danger  to  life  and  limb  of  the  traveller  greatly  enhanced." 


280  MASTEB  AND   SERVA19T. 


Ho8.  8, 9.  —  Mitohfill  y.  Gnwweller ;  Umpns  v.  London  Oamoral  Onmilmi  Go.  —  Hoteo. 

It  seems  that  the  New  York  Court  has  gone  to  the  extreme  verge  in 
Stewart  v.  Brooklyn,  ^c.  R.  Co.,  90  New  York,  588;  43  Am.  Rep.  185.  Here 
the  driver  of  a  street  horse-car  was  in  sole  charge,  acting  also  as  conductor. 
A  newsboy  had  intruded,  was  ordered  off  and  got  off,  when  the  driver  stopped 
his  car,  ran  after  him,  caught  him  and  beat  him.  The  passengers  interfered 
to  protect  him.  On  his  return  he  abused  the  passengers,  calling  them  foul 
names,  and  entered  the  car  and  committed  a  cruel  assault  on  the  plaintiff. 
It  was  held  that  the  defendant  was  liable,  because  it  had  undertaken  to  carry 
the  plaintiff  safely  and  to  treat  him  respectfully.  (The  Court  cited  Nieto  v. 
Clark,  1  Clifford  (U.  S.  Circ.  Ct.),  145,  where  the  owner  of  a  vessel  was  held 
for  an  attempt  by  one  of  his  seamen  to  commit  a  rape  on  a  passenger.)  The 
Court  observed  that  there  could  be  no  doubt  of  the  master's  liability  for  an 
injury  arising  from  mere  negligence  of  the  servant,  and  ask :  "  Can  it  be  less 
a  breach  of  the  contract  that  the  injury  was  intentionally  inflicted?*' 

In  Henderson  v.  DcUe  Coal  Co,  (Georgia),  40  Lawyers*  Reports  Annotated, 
it  was  held  that  an  employer  of  a  convict  laborer  is  not  liable  for  his  rape. 

As  to  arrest  of  passengers :  In  Central  R.  Co.  v.  Brewer,  78  Maryland,  394,  27 
Lawyers'  Rep.  Annotated,  63,  it  was  held  that  the  superintendent  of  a  street- 
railway  company  has  no  implied  authority  to  cause  the  arrest  of  a  passenger 
for  placing  in  the  fare-box  a  counterfeit  coin  in  payment  of  fare,  so  as  to  make 
the  company  liable  for  false  imprisonment  in  case  of  such  arrest  without 
proof  of  precedent  authority  or  subsequent  ratification  of  his  act.  This  was 
grounded  on  Carter  v.  Howe  Machine  Co,,  51  Maryland,  290;  34  Am.  Rep. 
311.  The  Court  cited  many  English  cases,  and  Mali  v.  Lord,  39  New  York, 
381 ;  100  Am.  Dec.  448 ;  Brokaw  v.  New  Jersey  R.  §■  Transp,  Co.,  32  New 
Jersey  Law,  328  ;  90  Am.  Dec.  659 ;  Vanderbilt  v.  Richmond  Tump.  Co., 
2  New  York,  479 ;  51  Am.  Dec.  315.  In  Little  Rock  Traction  J-  Electric  Co.  v. 
Walker,  Supreme  Court  of  Arkansas  (45  S.  W.  Rep.  57),  it  was  held  that  a 
street-car  company  is  not  liable  for  the  act  of  its  conductor  in  prosecuting 
a  passenger  for  violation  of  a  c'.ty  ordinance  making  it  a  misdemeanor  for 
any  person  to  ride  on  a  street  car  without  paying  his  fare,  in  the  absence  of 
express  authority  from  the  company  to  the  conductor  to  institute  such  prose- 
cution. To  these  may  be  added  Mulligan  v.  N,  Y.,  (^c.  R,  Co.,  129  New 
York,  506;  26  Am.  St.  Rep.  539;  13  Lawyers'  Rep.  Annotated,  791  (two  Judges 
dissenting).  Somewhat  to  the  contrary:  Palmieri  v.  Manhattan  R.  Co.,  133 
New  York,  261 ;  28  Am.  St.  Rep.  632 ;  16  Lawyers'  Rep.  Annotated,  136 ; 
Staples  V.  Schmid,  18  Rhode  Island,  224;  19  Lawyei-s'  Rep.  Annotated,  824; 
Gillingham  v.  Ohio  R.  Co.,  35  West  Virginia,  588;  29  Am.  St.  Rep.  827;  14 
Lawyers'  Rep.  Annotated,  798 ;  Eichengreen  v.  Louisville,  {fc.  R.  Co  ,  — 
Tennessee,  — ;  31  Lawyers'  Rep.  Annotated,  702 ;  not  on  account  of  differ- 
ence in  principle,  but  in  circumstances  showing  authority  or  ratification. 

In  Gabrielson  v.  WaydeU,  135  New  York,  1 ;  31  Am.  St.  Rep.  793;  17  Law- 
yers'  Rep.  Annotated,  228,  it  was  held  (three  Judges  dissenting)  that  an  assault 
by  a  captain  on  a  seaman,  for  refusing  to  work  on  account  of  illness,  does  not 
render  the  owner  of  the  vessel  liable.  So  a  railroad  company  is  not  liable 
for  an  injury  to  a  passenger  from  a  playful  scuffle  between  its  employees. 
Goodloe  V.  Memphis,  jrc.  R,  Co,,  —  Alabama,  — .     A  pastor  of  a  church. 


IL  a  VOL.  XVII.]       SECT.  IV.  —  RESPONDEAT  SUPERIOR.  281 

Hoi.  8, 9.  —  MitchaU  y.  Crufweller ;  Umpas  v.  London  General  Omnilmi  Co.  —  Votee. 

instructing  a  door-keeper  to  admit  only  ticket-holders,  is  liable  for  excess  of 
force  in  ejecting  an  intruder,  but  not  for  the  door-keeper's  procuring  of  his 
arrest  by  the  police  :  Barabasz  v.  Karat,  —  Maryland,  — .  Nor  for  the  act  of 
a  bill-poster  in  leaving  a  pile  of  bills  in  a  road  fifteen  miles  from  the  bill- 
boards, whereby  a  horse  was  frightened  to  death :  Smith  v.  Spitz,  156  Massar 
chusetts,  319.  Nor  where  a  motorman  jumps  off  his  car  and  beats  one  who  was 
obstructing  the  track  with  his  wagon  :  Rudgeair  v.  Reading  Traction  Co.,  — 

Penn.  ;  36  Atlantic  Reporter,  859.     Nor  where  a  brakeman  pushed  a 

trespasser  off  a  moving  train  for  refusing  to  give  him  fifty  cents  for  his  own 
use :  Railroad  Co.  v.  Latham,  72  Mississippi,  32.  Nor  where  a  servant  invites 
a  boy  to  ride  in  the  master's  cart :  Driscoll  v.  Scanlon,  165  Massachusetts,  348 ; 
52  Am.  St.  Rep.  523;  or  in  a  railroad  dump-car:  Morris  v.  Brown,  111  New 
York,  318 ;  7  Am.  St.  Rep.  751.  Or  a  railroad  employee  throws  articles  from 
a  car,  solely  to  accommodate  a  friend,  and  hits  another :  Walker  v.  Hannibal 
^  St.  J.  R.  Co.,  121  Missouri,  575;  42  Am.  St.  Rep.  547;  24  Lawyers'  Rep. 
Annotated,  363.  Or  a  boy  servant  invites  another  boy  to  ride  a  colt  for  fun : 
BawUr  v.  O'ConneU,  162  Massachusetts,  319;  44  Am.  St.  Rep.  359  ;  27  Law- 
yers'  Rep.  Annotated,  173  (citing  Mitchell  v.  CrassteelUr).  Or  a  laborer  pushes 
a  brick  from  the  top  of  a  wall  without  authority  to  touch  it :  Mayer  v.  Thomjh 
ton-H.  B.  Co.,  104  Alabama,  611 ;  28  Lawyers'  Rep.  Annotated,  433.  Or  a 
porter  of  a  sleeping-car  threw  from  a  moving  train  a  package  of  his  soiled 
linen,  by  arrangement  with  a  third  person  to  take  charge  of  it,  and  hit  and 
injured  the  plaintiff :  Walton  v.  N.  F.  Cent.  R.  Co.,  139  Massachusetts,  556. 
Or  a  minor,  directed  by  his  father  to  go  shooting  crows,  went  hunting  squir- 
rels instead,  and  therein  injured  plaintiff :  Winkler  v.  Fisher,  95  Wisconsin, 
355.  Nor  for  damage  done  by  a  fire  kindled  by  railroad  section-men  for  the 
purpose  of  cooking  their  meals :  Morier  v.  St.  Paul,  Sfc.  Ry.  Co.,  31  Minne- 
sota, 351 ;  47  Am.  Rep.  793  (citing  the  Mitchell  case).  Nor  where  the  master 
of  a  ferry-boat  took  a  burning  barge  in  tow :  Aycrigg  v.  N.  Y.,  j-c.  R.  Co., 
30  New  Jersey  Law,  460.  Nor  where  a  servant  employed  to  keep  boys  away 
from  public  lamps  kills  a  boy  by  throwing  a  stone  at  him  :  Kaiser  v.  McLean, 
20  App.  Div.  (N.  Y.)  326. 

An  express  company  is  liable  in  damages  to  one  who  demands  back  an 
excess  of  payment  made  by  him  to  it,  where  the  servant  curses,  abuses,  and 
insults  him :  Richherger  v.  Am.  Ex.  Co.,  73  Mississippi,  161 ;  55  Am.  St.  Rep. 
522  (a  learned  opinion,  stating  that  the  old  doctrine  of  McManus  v.  Crickett, 
1  East,  106,  "  has  long  since  been  repudiated,"  and  speaking  of  Lord  Kenyon'b 
reasoning  as  "  fantastic  *'  in  making  «  a  certain  mental  condition  of  the  servant 
the  test  by  which  to  determine  whether  he  was  acting  about  his  master's  busi- 
ness or  not").  A  railroad  company  is  liable  where  its  brakeman  kicked  a 
boy  off  the  train  for  refusing  to  pay  fare  :  Smith  v.  Louisville  j-  N.  R.  Co.,  95 
Kentucky,  11;  22  Lawyers'  Rep.  Annotated,  72.  So  where  the  engineman 
struck  and  cursed  a  passenger :  WhUe  v.  Norfolk,  ^c.  R.  Co.,  115  North  Caro- 
lina, 631 ;  44  Am.  St.  Rep.  489.  So  where  the  master  and  crew  of  a  vessel 
sportively  shaved  and  ducked  a  passenger,  according  to  custom,  on  sighting 
Newfoundland :  Dnffie  v.  Matthewson,  1  City  Hall  Recorder,  167  (New  York). 
So  where  a  ferry  pilot  diverged  from  the  usual  route  to  land  a  friend,  and  in 


282  MASTER  AND   SERVANT, 

Vos.  8,  9.  — -  Kitehell  ▼.  Craasweller ;  LimpYUi  ▼.  London  G«neral  Omnilnui  Co.  — Kotet. 

so  doing  collided  with  another  vessel,  the  master  was  held  liable :  Quinn  v. 
Power,  87  New  York,  635 ;  41  Am.  Rep.  392.  So  where  a  railway  ticket-agent 
assaulted  a  passenger  in  a  dispute  about  change :  Fick  v.  Chicago,  Sfc.  Ry.  Co., 
68  Wisconsin,  469 ;  60  Am.  Rep.  878.  So  where  a  detective  employed  by  a 
company  to  prosecute  persons  obstructing  its  track,  arrests  an  innocent  person : 
Evansville,  Sf^c,  R,  Co,  v.  McKee,  99  Indiana,  519 ;  50  Am.  Rep.  102.  So  where 
a  brakeman  orders  a  trespasser  to  jump  off  a  moving  train,  and  he  obeys : 
Kansas  City,  Sfc.  R.  Co.  v.  Kelly,  36  Kansas,  655;  69  Am.  Rep.  596;  Carter  y, 
Louisville,  (fc.  Ry,  Co,,  98  Indiana,  552 ;  49  Am.  Rep.  780.  So  where  a  shipper 
of  freight  gets  on  an  engine  by  direction  of  the  driver  to  ride  to  stock-yards  : 
Lake  Shore,  (re-  R-  Co,  v.  Brown,  123  Illinois,  162  ;  5  Am.  St.  Rep.  510.  Or 
where  servants  on  a  locomotive  engine  maliciously  sound  the  whistle  to 
frighten  a  horse :  Texas,  ifc,  R.  Co,  v.  Scoville,  62  Federal  Reporter,  730 ; 
23  U.  S.  App.  606 ;  27  Lawyers'  Rep.  Annotated,  179  (disapproving  McManus 
v.  Crickett), 

In  Dean  v.  St,  Paul  Union  Depot,  41  Minnesota,  360 ;  5  Laywers'  Rep. 
Annotated,  442,  a  union  depot  company  was  held  liable  for  an  assault  upon 
a  passenger  by  a  vicious  employee  of  a  tenant  who  had  charge  of  a  check- 
room, and  was  known  to  the  depot  company  to  be  a  man  of  savage  and  vicious 
propensities.  So  where  a  porter  of  a  palace  car,  being  asked  by  a  passenger 
if  he  could  get  him  a  sandwich,  flew  into  a  passion  and  violently  and  wantonly 
assaulted  him:  Pullman  Palace  Car  Co.  v.  Latcrence,  74  Mississippi,  782. 
So  where  a  servant  employed  to  deliver  milk  wilfully  adulterated  it  with  the 
design  of  injuring  his  master's  business  :  Stranahan  Brothers  Catering  Co,  v. 
Coil,  58  Ohio  State,  398  (one  Judge  dissenting),  a  valuable  discussion.  (This 
goes  even  further  than  Stewart  v.  Brooklyn,  Sfc.  R,  Co.,  supra,)  So  where  the 
driver  of  an  express  wagon  injured  a  person  while  conveying  a  load  of  poles 
for  himself  (citing  the  Mitchell  case)  :  MxdvehiU  v.  Bates,  31  Minnesota,  364 ; 
47  Am.  Rep.  796.  So  where  a  servant  employed  to  keep  loafers  away  from 
a  railway  station  saturated  the  clothing  of  one  with  benzine  and  set  fire 
to  it,  for  his  own  amusement,  or  it  was  fired  by  a  third  person :  Meade  v. 
Chicago,  J'c.  R,  Co.,  68  Missouri  Appeals,  92.  '  So  where  a  clerk  in  a  shop 
detained  a  woman  and  mistakenly  accused  her  of  having  stolen  an  article 
from  the  shop :  McDonald  v.  Franchere,  102  Iowa,  496. 

Whether  the  servant  in  doing  a  given  act  is  in  the  course  of  his  employment 
or  engaged  in  an  undertaking  of  his  own,  has  been  considerably  discussed, 
and  generally  is  a  question  of  fact :  Kimball  v.  Cushman,  103  Massachusetts, 
194;  4  Am.  Rep.  628;.  Redding  v.  So.  Car,  R,  Co.,  3  South  Carolina,  1;  16 
Am.  Rep.  681;  Rounds  v.  Delaware,  j-c.  R,  Co.,  64  New  York,  129;  21  Am. 
Rep.  597.  Such  are  always  cases  dependent  on  the  extent  of  the  deviation ; 
Ritchie  v.  Waller,  63  Connecticut,  155;  38  Am.  St.  Rep.  361  (citing  Mitchell  v. 
Crassweller).  An  important  consideration  always  is  whether  the  act  is  in  the 
course  of  active  prosecution  of  the  master's  business,  or  is  in  the  servant's  own 
hours  and  entirely  disconnected  from  the  service  of  the  master. 

If  the  servant  acts  without  reference  to  his  master's  service,  to  effect  some 
independent  purpose  of  his  own,  the  master  is  not  liable.  Stephenson  v.  So. 
Pac.  R,  Co.,  93  California,  558;  27  Am.  St  Rep.  223 ;  Pittsburgh,  Src.  Ry.  Co. 


R.  C.  VOL.  XVII.]       SECT.  IV.  —  RESPONDEAT  SUPERIOR.  283 

Hofl.  8,  9. — Xitehea  ▼.  Gnwweller;  LimpnB  y.  London  General  Qmnilnui  €k). — Hotef. 

V.  Shields,  47  Ohio  State,  397 ;  21  Am.  St.  Rep.  840 ;  Stone  v.  Hills,  45  Con- 
necticut, 44 ;  29  Am.  Rep.  635  (citing  Mitchell  v.  Crassweller),  and  notes,  640. 

But  if  the  deviation  is  slight,  and  is  in  the  master's  time,  and  constitutes 
only  an  interruption  of  the  active  service,  the  master  is  liable.  Quinn  v. 
Power,  supra ;  Ritchie  v.  Waller,  63  Connecticut,'  155 ;  38  Am.  St.  Rep.  361 ; 
27  Lawyers'  Rep.  Annotated,  161. 

In  Keep  v.  Walsh,  17  Appellate  Division  (N,  Y.  Sup.  Ct.),  104,  an  action  to 
recover  the  value  of  a  plate-glass  window  broken  by  defendants'  employee,  while 
he  was  returning  a  hand-car  that  he  had  borrowed,  without  the  knowledge  of 
the  defendants,  for  the  purpose  of  moving  goods  that  the  latter  had  directed 
him  to  move,  an  instruction  that  before  the  defendants  could  be  held  liable  for 
the  negligent  acts  of  their  servant,  those  acts  must  have  become  known  to  the 
defendants  and  been  approved  by  them  during  the  time  he  was  engaged  in 
the  service,  and  before  he  attempted  to  return  the  truck,  was  held  erroneous. 
The  Court  said :  "  The  plaintiffs  were  entitled  to  have  the  jury  instructed, 
that  if  the  plaintiffs  were  damaged  by  the  negligent  act  of  the  servant  while 
he  was  acting  within  the  genersd  scope  of  his  employment,  and  if  the  motive 
which  prompted  the  act  and  the  purpose  sought  by  it  were  within  the  scope 
of  his  employment,  and  in  the  business  of  defendants,  and  not  independent  or 
outside  of  his  employment,  or  disconnected  with  the  master's  business,  the 
plaintiffs  were  entitled  to  a  verdict.  Wellman  v.  Miner,  19  Misc.  Rep.  644 
and  cases  cited ;  Burns  v.  Paulson,  L.  R.  8  C.  P.  563 ;  Railroad  Co,  v.  Randall, 
40  Kansas,  421 ;  Walker  v-  Johnson,  28  Minn.  147 ;  Railroad  Co.  v.  Kirk,  102 
Ind.  399 ;  T\Tiarton  Neg.  (2d  ed.)  167.  If  the  jury  should  find  upon  all  the 
evidence  that  the  act  of  the  servant  was  no  part  of  his  business,  nor  within 
the  scope  of  his  employment,  nor  for  the  benefit  of  defendants,  nor  in  further- 
ance of  their  interest,  then  they  are  not  liable.  If  the  servant,  in  borrowing 
and  returning  the  truck,  was  carrying  out  a  separate  and  independent  purpose 
and  motive  of  his  own,  and  in  doing  so  ceased  to  be  an  actor  within  the  scope 
of  his  employment  and  within  the  range  of  his  master's  business,  then  the 
defendants  are  not  liable.  *  The  test  of  the  master's  responsibility  for  the  act 
of  his  servant  is  not  whether  such  act  was  done  according  to  the  instructions 
of  the  master  to  the  servant,  but  whether  it  is  done  in  the  prosecution  of  the 
business  that  the  servant  was  employed  by  the  master  to  do.'  Cosgrove  v. 
Ogden,  49  N.  Y.  255." 

In  Phelon  v.  Stiles,  43  Connecticut,  426,  the  servant,  in  delivering  bran  for 
his  master,  left  several  bags  by  the  roadside,  his  object  being  to  save  unneces- 
sary transportation,  and  to  give  him  time  to  attend  to  some  private  business 
of  his  own ;  but  it  was  held  that  he  was  acting  in  his  master's  employment, 
and  that  the  latter  was  liable  for  an  injury  caused  by  the  fright  of  a  horse 
caused  by  the  bags  of  bran. 

In  Fletcher  v.  BalUinore  Sf  P.  R.  Co.,  168  United  States,  135,  the  plaintiff 
was  an  employee  of  the  defendant,  and  was  injured  by  a  stick  of  wood  thrown 
from  a  repair  train  by  another  employee.  It  appeared  to  have  been  for  a  long 
time  the  custom  of  the  employees,  on  the  return  of  the  train  at  evening,  to 
throw  off  sticks  of  refuse  wood  for  their  own  use,  at  the  points  nearest  their 
own  homes,  and  it  was  by  one  of  these  that  the  injury  was  inflicted.     It  was 


284  BIASTER  AND   SERVANT. 

Ho.  18.  —  Allen  y.  Flood.  —  Bvle. 

held  error  to  take  the  case  from  the  jury,  and  that  it  should  have  been  left  to 
them  to  determine  whether  the  defendant  knew  the  custom,  and  acquiesced, 
and  whether  it  was  so  dangerous  that  injury  should  have  been  apprehended, 
and  whether  the  defendant  was  negligent  in  failing  to  prohibit  it.  The  Court 
distinguished  Walton  v.  N.  Y.  C  Sleeping  Car  Co.y  Snow  v.  Fitchburg  Rail-' 
road  Co.  J  and  Walker  v.  Hannibal  {f  St.  J.  Railroad  Co.^  supra.  The  decision 
was  put  on  the  ground  of  the  sufferance  of  a  dangerous  custom. 

Mr.  Wood  cites  the  Limpus  case  (Master  and  Servant,  sect.  295),  observing, 
^  This  rule  has  probably  nowhere  been  better  illustrated  than  in  an  English 
case,  which  has  come  to  be  regarded  as  a  leading  case  upon  this  question." 
He  also  cites  Seymour  v.  Greenwood^  6  H.  &  N.  859  ;  7  id.  356,  saying  it  *<  is 
cited  with  approbation  upon  this  question  in  all  the  American  courts." 

The  principal  cases  are  cited  in  Shearman  &  Redfield  on  Negligence,  sects. 
145, 146,  147,  and  in  Thompson  on  Negligence,  pp.  884,  889,  and  in  Ray  on 
Negligence  of  Imposed  Duties  —  Passenger  Carriers,  pp.  333,  335. 


Section  V.  —  Relation  as  regards  Third  Parties. 

No.  10.  — LUMLEY  v.  GYE. 
(Q.  B.  1853.) 

No.  11.  — BOWEN  V.  HALL 
(c.  A.  1881.) 

No.  12.  — ALLEN  v.  FLOOD. 
(H.  L.  1897.) 

RULE. 

Where  there  is  a  contract  between  two  persons  for  ex- 
clusive personal  service  to  be  rendered  by  the  one  to  the 
other,  an  action  lies  against  a  third  person  (not  a  party  to 
the  contract)  who  intentionally  induces  the  former  party 
to  break  his  contract  so  as  to  cause,  as  a  natural  conse- 
quence of  the  breach,  loss  to  the  other. 

But  an  inducement  to  put  an  end  to  the  relation  of 
master  and  servant,  not  involving  a  breach  of  a  contract 
for  service,  and  not  accompanied  by  acts  of  personal  vio- 
lence,  or   constituting  an  attack  upon   property,   is  not 


R.  C.  VOL.  XVU.]      SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        285 
Ho.  18.  —  Alloi  Y.  Flood,  188S,  A.  C.  1,  8. 

actionable,  even  where  the  party  promoting  the  dissolu- 
tion of  the  relation  is,  according  to  the  express  finding  of  a 
jury,  actuated  by  malice. 

Inxnley  v.  Gye. 

2  EUis  &  BL  216-270  (s.  c  22  L.  J.  Q.  B.  463 ;  17  Jar.  827). 

Bowen  v.  Hall. 

6  Q.  B.  D.  333^344  (s.  c.  50  L.  J.  Q.  B.  305;  44  L.  T.  75 ;  29  W.  B.  367). 

[These  cases  will  be  found  reported  as  Nos.  14  and  15  of 
•*  Action,"  IRC.  706,  717.] 

Allen  (Appellant)  v.  Flood  and  Taylor  (Bespondents). 

1898,  A.  C.  1-181 ;  (s.  c.  67  L.  J.  Q.  B.  119). 

AcUon^  Cause  of. — Mdlicumsly  inducing  Employer  to  discharge  Servant  —  [1] 
Lawful  Interference  with  Trade. 

An  act  lawful  in  itself  is  not  converted  by  a  malicious  or  bad  motive  into  an 
nnlawful  act  so  as  to  make  the  doer  of  the  act  liable  to  a  civil  action. 

The  respondents  were  shipwrights  employed  *'  for  the  job"  on  the  repairs  to 
the  woodwork  of  a  ship,  but  were  liable  to  be  discharged  at  any  time.  Some 
ironworkers  who  were  employed  on  the  ironwork  of  the  ship  objected  to  the 
respondcDts  being  employed,  on  the  ground  that  the  respondents  had  previously 
worked  at  ironwork  on  a  ship  for  another  firm,  the  practice  of  shipwrights  working 
on  iron  beiug  resisted  by  the  trade  union  of  which  the  ironworkers  were  members. 
The  appellant,  who  was  a  delegate  of  the  union,  was  sent  for  by  the  ironworkers 
and  informed  that  they  intended  to  leave  off  working.  The  appellant  informed 
the  employers  that  unless  the  respondents  were  discharged  all  the  ironworkers 
would  be  called  out  or  knock  off  work  (it  was  doubtful  which  expression  was  used); 
that  the  employers  had  no  option ;  that  the  iron-men  were  doing  their  best 
to  put  *an  end  to  the  practice  of  shipwrights  doing  ironwork,  and  that  [*2] 
wherever  the  respondents  were  employed  the  iron-men  would  cease  work. 
There  was  evidence  that  this  was  done  to  punish  the  respondents  for  what  they 
had  done  in  the  past.  The  employers,  in  fear  of  this  threat  being  carried  out, 
which  (as  they  knew)  would  have  stopped  their  business,  discharged  the  re- 
spondents and  refused  to  employ  them  again.  In  the  ordinary  course  the 
respondents'  employment  would  have  continued.  The  respondents  having 
brought  an  action  against  the  appellant,  the  jury  found  that  he  had  maliciously 
induced  the  employers  to  discharge  the  respondents  and  not  to  engage  them,  and 
gave  the  respondents  a  verdict  for  damages. 

Heldy  reversing  the  decision  of  the  Court  of  Appeal  [1895],  2  Q.  B.  21  (Lord 
Halsburt,  L.  C,  and  Lords  Ashbourne  and  Morris  dissenting),  that  the 
appellant  had  violated  no  legal  right  of  the  respondents,  done  no  unlawful  act,  and 


286  MASTER  AND  SEBVANT. 

Ho.  12.  —  Allfln  Y.  Flood,  1888,  A.  C.  3,  8. 

used  no  unlawful  means,  in  procuring  the  respondents*  dismissal ;  that  his  con- 
duct was  therefore  not  actionahle,  howeyer  malicious  or  bad  his  motive  might  be, 
and  that^  notwithstanding  the  verdict,  the  appellant  was  entitled  to  judgment. 

The  facts  material  to  this  appeal  (omitting  matters  not  now  in 
question)  were  as  follows:  In  April,  1894,  about  forty  boiler- 
makers,  or  "  iron-men, "  were  employed  by  the  Glengall  Iron 
Company  in  repairing  a  ship  at  the  company's  Begent  Dock  in 
Mill  wall.  They  were  members  of  the  boiler-makers'  society,  a 
trade  union,  which  objected  to  the  employment  of  shipwrights  on 
ironwork.  On  April  12  the  respondents.  Flood  and  Taylor,  who 
were  shipwrights,  were  engaged  by  the  company  in  repairing  the 
woodwork  of  the  same  ship,  but  were  not  doing  ironwork.  The 
boiler-makers,  on  discovering  that  the  respondents  had  shortly 
before  been-  employed  by  another  firm  (Mills  &  Knight)  on  the 
Thames  in  doing  ironwork  on  a  ship,  became  much  excited  and 
began  to  talk  of  leaving  their  employment.  One  of  them,  Elliott, 
telegraphed  for  the  appellant  Allen,  the  London  delegate  of  the 
boiler-makers'  society.  Allen  came  up  on  the  13th,  and  being 
told  by  Elliott  that  the  iron-men,  or  some  of  them,  would  leave  at 
dinner-time,  replied  that  if  they  took  the  law  into  their  own 
hands  he  would  use  his  influence  with  the  council  of  the  society 
that  they  should  be  deprived  of  all  benefit  from  the  society  and 
be  fined,  and  that  they  must  wait  and  see  how  things  settled. 
[*  3]  Allen  then  had  an  interview  *  with  Halkett,  th^  Glengall 
Company's  manager,  and  Edmonds  the  foreman,  and  the 
ifesult  was  that  the  respondents  were  discharged  at  the  end  of  the 
day  by  Halkett  An  action  was  then  brought  by  the  respondents 
against  Allen  for  maliciously  and  wrongfully  and  with  intent  to 
injure  the  plaintiffs  procuring  and  inducing  the  Glengall  Company 
to  break  their  contract  with  the  plaintiffs  and  not  to  enter  into 
new  contracts  with  them,  and  also  maliciously,  &c. ,  intimidating 
and  coercing  the  plaintiffs  to  break,  &a ,  and  also  unlawfully  and 
maliciously  conspiring  with  others  to  do  the  above  acts. 

At  the  trial  before  Kennedy,  J. ,  and  a  common  jury,  Halkett 
and  Edmonds  were  called  for  the  plaintiffs,  and  gave  their  account 
of  the  interview  with  Allen.  In  substance  it  was  this :  ^  Allen 
told  them  that  he  had  been  sent  for  because  Flood  and  Taylor  were 
known  to  have  done  ironwork  in  Mills  &  Knight's  yard,  and 
that  unless  Flood  and  Taylor  were  discharged  all  the  members  of 

^  Fart  of  the  eyidence  is  given  verbatim  in  the  judgment  of  Lord  Halsburt,  L.  C. 


R.  a  VOL.  XVII.]      SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        287 


Ho.  12.  —  Allfln  v.  Flood,  1898,  A.  C.  8-11. 


the  boiler-makers'  society  would  be  "  called  out  '  or  "  knock  ofif ' 
work  that  day :  they  could  not  be  sure  which  expression  was  used ; 
that  Halkett  had  no  option;  that  the  iron -men  were  doing  their 
best  to  put  an  end  to  the  practice  of  shipwrights  doing  ironwork, 
and  wherever  these  men  were  employed,  or  other  shipwrights  who 
had  done  ironwork,  the  boiler-makers  would  cease  work  —  in  every 
yard  on  the  Thames.  Halkett  said  that  if  the  boiler-makers 
(about  one  hundred  in  all  were  employed)  had  been  called  out  it 
would  have  stopped  the  company's  business,  and  that  in  fear  of  the 
threat  being  carried  out  he  told  Edmonds  to  discharge  Flood  and 
Taylor  that  day,  and  that  if  he  knew  of  any  shipwrights  having 
worked  on  ironwork  elsewhere,  when  he  was  engaging  men,  for 
the  sake  of  peace  and  quietness  for  themselves  he  was  not  to 
employ  them.  Allen  was  called  for  the  defence.  His  account  of 
the  interview  is  discussed  in  the  judgment  of  Lord  Halsbury, 
L  C. 

Kennedy,  J. ,  ruled  that  there  was  no  evidence  of  conspiracy, 
or  of  intimidation  or  coercion,  or  of  breach  of  contract,  Flood  and 
Taylor  having  been  engaged  on  the  terms  that  they  might 
be  discharged  at  any  time.      In  the  ordinary  course  *  their  [*  4] 
employment  would  have  continued  till  the  repairs  were  fin- 
ished or  the  work  slackened. 

In  reply  to  questions  put  by  Kennedy,  J.,  the  jury  found  that 
Allen  maliciously  induced  the  Glengall  Company  (1)  to  discharge 
Flood  and  Taylor  from  their  employment;  (2)  not  to  engage 
them ;  that  each  plaintiff  had  suffered  £20  damages ;  and  that  the 
settlement  of  the  dispute  was  a  matter  within  Allen's  discretion. 
After  consideration,  Kennedy,  J.,  entered  judgment  for  the  plain- 
tiffs for  £40.  This  decision  was  affirmed  by  the  Court  of  Appeal 
(Lord  EsHER,  M.  R,  Lopes  and  Eigby,  L.  JJ.)  [1895],  2  Q.  B.  21. 
Against  these  decisions  Allen  brought  the  present  appeal.  It 
was  argued  first  before  Lord  Halsbury,  L.  C.  ,  and  Lords  Watson, 
Herschell,  Macnaghten,  Morris,  Shand,  and  Davey  on  Decem- 
ber 10,  12,  16,  17,  1895,  and  again  (the  following  Judges  having 
been  summoned  to  attend,  —  Hawkins,  Mathew,  Cave,  North, 
Wills,  Grantham,  Lawrance,  and  Wright,  JJ.)  on  March  25, 
26,  29,  30,  April  1,  2,  1897,  before  the  same  noble  and  learned 
Lords,  with  the  addition  of  Lords  Ashbourne,  and  James  of 
Hereford. 

At  the  close  of  the  arguments  the  following  question  was  [11] 


288  MASTER  AND   SERVANT. 


Vo.  12.  -- AUea  v.  Flood,  1888,  A.  C.  11-68. 


propounded  to  the  Judges :  Assuming  the  evidence  given  by  the 
plaintiflFs'  witnesses  to  be  correct,  was  there  any  evidence  of  a 
cause  of  action  fit  to  be  left  to  the  jury? 

The  Judges  desired  time  to  consider,  and  on  June  3,  1897,  de- 
livered their  opinions;  each  giving  their  reasons  at  lengtL  In 
short,  the  question  was  answered  in  the  aflBrmative  by  Hawkins, 
J.,  Cave,  J.,  North,  J.,  Wills,  J.,  Grantham,  J.,  andLAWRANCE, 
J.  ;  and  in  the  negative  by  MatheW,  J. ,  and  Wright,  J. 

On  the  final  consideration  (14  Dec,  1897)  the  opinions  of  the 
majority  of  the  Lords  who  heard  the  appeal  (Lords  Watson, 
Herschell,  Macnaghten,  Shand,  Davey,  and  James  of  Hereford) 
were  given  for  a  reversal  of  the  judgment  of  the  Court  of  Appeal. 
A  minority  (Lord  Halsbury,  L.  C,  Lord  Ashbourne  and  Lord 
Morris)   were  for  affirming   the  judgment     The  following  are 

selected  as  the  most  fully  reasoned  opinions  on  either  side. 
[67]  Lord  Halsbury,  L.  C.  —  My  Lords,  in  this  case  the  two 
plaintiffs  sued  three  persons  as  defendants  for  having  ma- 
liciously and  wrongfully,  and  with  intent  to  injure  the  plaintiffs, 
intimidated  and  coerced  the  employers,  videlicet,  a  certain  com- 
pany called  the  Glengall  Iron  Company,  to  break  contracts,  and 
not  to  enter  into  contracts  with  them,  whereby  the  plaintiffs 
had  suffered  damage. 

I  have  compendiously  stated  the  cause  of  action,  as  I  conceive 
it  to  be,  in  order  to  discuss  by  itself  the  main  and  important 
principle  which  is  at  stake  in  the  determination  of  this  appeal ; 
but  I  shall  return  to  the  question  of  the  pleadings  and  to  the 
course  of  the  trial  before  Kennedy,  J.,  since  it  appears  to  me 
that  some  confusion  has  been  created  by  not  keeping 
[*68]  *  separate  objections  directed  to  those  subordinate  parts 
of  the  appeal  from  the  cause  of  action  itself  as  I  have 
stated  it 

The  two  plaintiffs  were  shipwrights,  and  were  working  in  their 
trade  on  board  a  vessel  called  the  Sam  Weller.  The  vessel  was 
being  repaired,  and  the  two  plaintiffs  were  engaged  by  the  Glen- 
gall Iron  Company  to  work  at  their  trade  in  the  repair  of  the 
vessel. 

I  think  there  is  much  to  be  said  for  the  doubt  thrown  out  by 
Hawkins,  J.,  in  his  elaborate  and  most  able  opinion,  whether 
the  assumption  was  accurate  on  which  both  parties  conducted  the 
case,  namely,  that  there  was  no  contractual  relation  between  the 


R.  C.  VOL.  XVTI.]      SECT.  V.  —  RELATION  AS  TO   THIRD  PARTIES.        289 
Vo.  12.  —  AUen  v.  Flood,  1898,  A.  C.  68,  89. 

employers  and  employed  so  as  to  bring  into  debate  the  question  of 
whether  there  was  any  inducement  offered  to  the  Glengall  Iron 
Company  to  break  contracts  with  the  plaintiffs.  But  for  the 
present  I  will  assume  that  there  was  no  contract  by  which  the 
company  were  bound  to  keep  the  plaintiffs  in  their  service  till 
the  repairs  of  the  vessel  were  completed,  while  on  the  other  hand 
there  was  no  reasonable  doubt  that  but  for  what  was  done  by  the 
defendant  they  would  have  been  kept  at  work  until  the  termina- 
tion of  the  repairs. 

My  Lords,  I  am  not  concerned  to  discuss  minutely  the  evidence 
where  the  witnesses  are  in  conflict,  or  where  it  may  be  contended 
that  the  witnesses  relied  on  by  the  plaintiffs  have  exaggerated  or 
misunderstood  what  was  said  by  the  defendant  Such  questions 
were  for  the  jury,  and  if  there  was  any  reasonable  evidence  for 
them  it  was  for  them,  and  not  for  me  or  for  any  one  else,  to 
decide. 

The  plaintiffs  gave  evidence  that  while  thus  employed  the 
defendant  Allen  came  to  the  responsible  manager  of  the  Glengall 
Iron  Company  and  made  certain  communications  (which  I  will 
deal  with  presently,  because  upon  the  character  of  those  commu- 
nications much  depends),  and  that  in  consequence  of  those  com- 
munications they  were  discharged  from  their  employment  As  to 
the  one  being  the  consequence  of  the  other,  although  in  a  certain 
sense  it  is  still  a  question  of  fact,  I  confess  I  am  surprised  in  no 
small  degree  to  hear  a  doubt  suggested  that  it  was  not  in  conse- 
quence of  the  communications  made  by  Allen  that  the 
plaintiffs  were  discharged.  One  of  the  officers  ♦  of  the  de-  [♦  69] 
fendant  company,  it  is  true,  explains  that  it  was  for  peace 
and  quietness  in  the  yard ;  but  though  his  words  are  accompanied 
by  such  expressions  as  these,  I  should  have  thought  no  one  could 
have  seriously  doubted  that  what  he  meant  (and,  indeed,  I  think 
what  he  said),  in  the  ordinary  intelligible  use  of  language,  was 
that  he  discharged  them  because  he  could  not  have  the  work  in 
his  yard  interrupted.  I  confess  I  am  wholly  unable  to  understand 
what  is  stated  by  some  of  your  Lordships  that  the  men  were  not 
discharged  by  reason  of  anything  that  Allen  said,  and  that  the 
boiler-makers  would  have  ceased  working  even  if  Allen  had  said 
nothing*  this  is  not  the  evidence,  and,  what  is  more  important,  it 
is  in  the  teeth  of  the  express  finding  of  the  jury  in  answer  to 
Kennedy,  J.  's  question,  as  I  will  presently  show.     And,  in  truth, 

VOL.  XVII.  — 19 


290  MASTER  AND  SEBYANT. 


Ho.  12.  —  Alloi  Y.  Flood,  1898,  A.  C.  89,  70. 


if  this  were  accurate,  there  would  be  nothing  to  discuss,  since,  in 
that  case,  Allen  would  have  done  nothing  that  caused  any  damage 
to  any  one. 

And  now  I  will  quote,  as  nearly  as  I  can,  the  language  which 
is  alleged  to  have  been  used  by  Allen  in  his  communications.  I 
quote  first  what  was  stated  by  Mr.  Halkett,  who  was  the  manag- 
ing director  of  the  Glengall  Iron  Company.  Allen  said,  "  He 
had  received  word  from  some  of  the  boiler-makers  that  were 
working  in  our  yard  that  they  wanted  to  see  him,  and  he  came 
round  and  had  an  interview  with  these  men,  and  they  told  him 
that  we  had  two  shipwrights  engaged  in  our  employment  who  were 
known  to  have  done  ironwork  before  in  Mills  &  Knight's  yard, 
and  that  unless  these  two  men  were  discharged  from  our  employ- 
ment that  day,  all  the  ironworkers  belonging  to  his  society  would 
leave  off  work  that  day ;  and  they  gave  as  the  only  reason  that 
these  men  were  guilty  of  doing  ironwork  in  Mills  &  Knight's 
yard.  .  .  .  The  substance  of  what  he  said  was  that  they  were 
really  trying  to  put  an  end  to  this  practice  of  doing  ironwork  by 
the  shipwrights  —  to  stop  shipwrights  being  engaged  in  ironwork. 
That  it  was  not  from  any  ill-feeling  against  ourselves  nor  against 
any  men  in  particular  —  Flood  and  Taylor ;  but  they  —  that  is, 
the  boiler-makers  —  had  made  up  their  minds  —  or  we  have  made 
up  our  minds  —  that  wherever  it  is  known  that  any  shipwrights 
have  been  engaged  doing  ironwork,  their  workmen  —  that 
[*70]  is,  the  *  boiler-makers'  —  would  cease  work  on  the  same 
ship  on  the  same  employment " 

Then  a  question  was  asked,  "  Did  he  say  anything  in  regard  to 
Flood  and  Taylor  in  respect  of  other  yards  besides  yours  ? "  And 
the  answer  was,  "  Not  in  a  particular  sense ;  in  a  general  sense 
that  these  men  would  be  followed  —  that  these  men  were  known 
—  it  was  so  difl&cult  to  get  them  known;  that  these  men  were 
known,  and  wherever  these  men  were  employed  the  same  action 
would  be  taken  there  as  had  been  taken  in  our  place.  *  He  also 
said,  "  You  have  no  option.  If  you  continue  to  engage  these  men 
our  men  will  leave.  ...  It  was  in  consequence  of  that  that  the 
men  were  discharged.  It  was  the  fear  of  the  threat  being  carried 
out  —  of  the  men  leaving  —  the  boiler-makers.  If  the  boiler- 
makers  had  left  or  had  been  called  out  it  would  seriously  have 
impeded  our  business.  .  .  .  The  threat  to  withdraw  these  iron- 
workers extended  to  every  workman  we  had  in  our  employment  at 


R.  C.  VOL.  XVII.]      SECT.  V.  —  RELATION  AS  TO  THIRD   PARTIES.        291 
Ho.  18.  —  Alloi  Y.  Flood,  1898,  A.  C.  70,  71. 

whatever  placa  *  He  goes  on  to  say  (after  an  embarrassing  inter- 
ruption) that  "  the  threat  was  to  withdraw  the  ironworkers  in  the 
employment  of  the  Glengall  Iron  Company  from  every  ship  or 
every  job  upon  which  the  Glengall  Iron  Company  were  engaged  on 
which  the  men  of  their  union  were  employed. ' 

Mr.  Edmonds,  the  foreman  of  the  Glengall  Iron  Company, 
deposed  as  follows :  *"  Mr.  Halkett  sent  for  me  and  when  I  got  in 
the  room  he  said,  '  Mr.  Allen  has  come  here  and  says  that  if  those 
two  men  '  —  that  is,  Flood  and  Taylor  —  'are  not  discharged  all  of 
the  iron-men  will  knock  ofif  work  or  be  called  out '  I  will  not 
be  sure  what  term  he  used.  I  asked  Mr.  Allen  the  reason  why. 
He  said  because  those  two  men  had  been  working  at  Messrs.  Mills 
&  Knight's  on  ironwork.  I  told  him  I  thought  it  was  very 
arbitrary  on  his  part  to  do  anything  like  that  I  told  him  I 
thought  it  was  not  right  that  Messrs.  Mills  &  Knight's  sins 
should  be  visited  upon  us." 

(Q. )   "  Did  anything  else  take  place  ? " 

(A.)  "For  the  reason  that  we  were  not  employing  the  ship- 
wrights on  ironwork,  and  never  had  done  so  —  not  at  the  Glengall. 
There  was  a  lot  of  other  conversation,  but  that  is  not  mate- 
rial to  this  casa  He  says  that  was  the  case,  and  if  *  these  [*  71] 
men  were  not  discharged,  their  men  would  be  called  out  or 
'  knock  off '  —  I  will  not  be  sure  what  term  he  used.  Me  and  Mr. 
Allen  had  a  few  words,  but  that  is  immaterial  to  this.  I  think 
that  is  all  that  is  material  to  this  case.  ** 

(Q. )   "  Was  anything  said  about  other  yards  ? " 

(A.)  "Yea  When  I  spoke  about  it  not  being  right  to  visit 
Mills  &  Knight's  sins  on  us,  he  said  the  men  would  be  called  out 
from  any  yard  they  went  to  —  they  would  not  be  allowed  to  work 
anywhere  in  London  river.  * 

As  I  have  said,  in  the  face  of  this  evidence,  how  any  one  can 
doubt  that  it  was  the  communications  made  by  Allen  that  caused 
the  dismissal  of  these  two  men,  I  am  not  able  to  understand ;  and 
in  what  I  have  to  say  hereafter  I  shall  assume  as  proved,  or,  at  all 
events,  as  established  by  evidence  proper  to  be  submitted  to  a 
jury,  that  it  was  Allen  who  caused  the  dismissal  of  the  plaintiffs. 

The  first  objection  made  to  the  plaintiffs'  right  to  recover  for  the 
loss  which  they  thus  undoubtedly  suffered  is  that  no  right  of  the 
plaintiffs  was  infringed,  and  that  the  right  contended  for  on  their 
behalf  is  not  a  right  recognised  by  law,  or,  at  all  events,  only 


292  MASTER  AND   SERVANT. 

Vo.  12.  ^  Allen  v.  Flood,  1898,  A.  C.  71,  72. 

such  a  right  as  every  one  else  is  entitled  to  deprive  them  of  if  they 
stop  short  of  physical  violence  or  obstruction.  I  think  the  right 
to  employ  their  labour  as  they  will  is  a  right  both  recognised  by 
the  law  and  sufficiently  guarded  by  its  provisions  to  make  any 
undue  interference  with  that  right  an  actionable  wrong. 

Very  early  authorities  in  the  law  have  recognised  the  right; 
and,  in  my  view,  no  authority  can  be  found  which  questions  or 
qualifies  it  The  schoolmaster  who  complained  that  his  scholars 
were  being  assaulted  and  brought  an  action,  the  quarry  owner 
who  complained  that  his  servants  were  being  menaced  and 
molested,  were  both  held  to  have  a  right  of  action.  And  it 
appears  to  me  that  the  importance  of  those  cases,  and  the  principle 
established  by  them,  have  not  been  sufficiently  considered.  It  is 
said  that  threats  of  violence  or  actual  violence  were  unlawful 
means :  the  lawfulness  of  the  means  I  will  discuss  hereafter.  But 
the  point  on  which  these  cases  are  important  is  the  exist- 
[*  72]  ence  of  the  right.  It  was  not  the  schoolmaster  who  *  was 
assaulted ;  it  was  not  the  quarry  owner  who  was  assaulted 
or  threatened;  but,  nevertheless,  the  schoolmaster  was  held  en- 
titled to  bring  an  action  in  respect  of  the  loss  of  scholars  attend- 
ing his  school,  and  the  quarry  owner  in  respect  of  the  loss  of 
workmen  to  his  quarry.  They  were  third  persons;  no  violence 
or  threats  were  applied  to  them,  and  the  cause  of  action,  which 
they  had  a  right  to  insist  on,  was  the  indirect  effect  upon  them- 
selves of  violence  and  threats  applied  to  others. 

My  Lords,  in  my  view  these  are  binding  authorities  to  show 
that  the  preliminary  question,  namely,  whether  there  was  any 
right  of  the  plaintiffs  to  pursue  their  calling  unmolested,  must 
be  answered  in  the  affirmative.  The  question  of  what  is  the  right 
invaded  would  seem  to  be  reasonably  answered,  and  the  univer- 
sality of  the  right  to  all  Her  Majesty's  subjects  seems  to  me  to  be 
no  argument  against  its  existence.  It  is,  indeed,  part  of  that 
freedom  from  restraint,  that  liberty  of  action,  which,  in  my  view, 
may  be  found  running  through  the  principles  of  our  law. 

As  I  have  said,  I  will  deal  separately  both  with  the  remedy  for 
the  infringement  of  that  right,  if  it  has  been  infringed,  and  with 
the  means  by  which  it  is  alleged  to  have  been  infringed. 

Upon  this  part  of  the  case  I  wish  to  quote  and  make  my  own 
the  language  of  Bramwell,  B.,  in  Reg,  v.  DruUt,  10  Cox  C.  C. 
600 :  "  When  the  law  gave,  or  rather  acknowledged,  a  right,  it 


B.  C.  VOL.  XVn.]      SECT.  V.  —  RELATION  AS  TO  THIRD   PARTIES.        293 
Vo.  12.  —  Allen  Y.  Flood,  1898,  A.  C.  72,  78. 

provided  a  punishment  or  a  remedy  for  the  violation  of  that  right. 
That  was  a  cardinal  rule  and  an  obvious  one.  The  old  expression 
that  *  there  was  no  wrong  without  a  remedy '  might  also  be 
interpreted  to  mean  that  there  was  also  no  right  without  a  remedy. 
Sometimes  the  remedy  was  by  a  criminal  proceeding,  sometimes 
by  a  civil  action,  sometimes  by  both.  Having  made  those  general 
remarks  he  would  make  another,  which  was  also  familiar  to  all 
Englishmen,  namely,  that  there  was  no  right  in  this  country 
under  our  laws  so  sacred  as  the  right  of  personal  liberty.  No 
right  of  property  or  capital,  about  which  there  had  been  so  much 
declamation,  was  so  sacred  or  so  carefully  guarded  by  the  law  of 
this  land  as  that  of  personal  liberty.  They  were  quite  aware  of 
the  pains  taken  by  the  common  law,  by  the  writ,  as  it  was 
called,  of  habeas  *  corpus,  and  supplemented  by  statute,  to  [*  73] 
secure  to  every  man  his  personal  freedom  —  that  he  should 
not  be  put  in  prison  without  lawful  cause,  and  that  if  he  was  he 
should  be  brought  before  a  competent  magistrate  within  a  given 
time,  and  be  set  at  liberty  or  undergo  punishment.  But  that 
liberty  was  not  liberty  of  the  body  only.  It  was  also  a  liberty  of 
the  mind  and  will ;  and  the  liberty  of  a  man's  mind  and  will,  to 
say  how  he  should  bestow  himself  and  his  means,  his  talents  and 
his  industry,  was  as  much  a  subject  of  the  law's  protection  as  was 
that  of  his  body.  Gtenerally  speaking,  the  way  in  which  people 
had .  endeavoured  to  control  the  operation  of  the  minds  of  men 
was  by  putting  restraints  on  their  bodies,  and  therefore  we  had 
not  so  many  instances  in  which  the  liberty  of  the  mind  was 
vindicated  as  was  that  of  the  body.  Still,  if  any  set  of  men 
agreed  among  themselves  to  coerce  that  liberty  of  mind  and 
thought  by  compulsion  and  restraint,  they  would  be  guilty  of  a 
criminal  offence,  namely,  that  of  conspiring  against  the  liberty 
of  mind  and  freedom  of  will  of  those  towards  whom  they  so 
conducted  themselves.  He  was  referring  to  coercion  or  compul- 
sion —  something  that  was  unpleasant  and  annoying  to  the  mind 
operated  upon,  and  he  laid  it  down  as  clear  and  undoubted  law 
that  if  two  or  more  persons  agreed  that  they  would  by  such  means 
co-operate  together  against  that  liberty  they  would  be  guilty  of  an 
indictable  offence.  * 

It  is  said,  indeed,  that  an  action  for  the  infringement  of  such 
a  right  is  a  novelty;  but  I  do  not  concur  that  it  is,  or  that  if  it 
were  it  would  be  a  sufficient  argument     The  whole  history  of  the 


294  MASTER  AND   SEEVANT. 

Vo.  12.  —  Alloi  v.  Flood,  1898,  A.  C.  78,  74. 

action  upon  the  case,  from  13  Edw.  I.,  c  24,  downwards  aflBrms 
the  principle  that  where  cases  fall  under  the  same  right  and 
require  a  like  remedy  new  precedents  should  be  created. 

So  in  Pasley  v.  Freeman  (1789),  3  T.  R,  at  p.  63  (1  R  R  647), 
per  AsHHURST,  J.  :  "  Another  argument  which  has  been  made  use 
of  is  that  this  is  a  new  case,  and  that  there  is  no  precedent  for 
such  an  action.  Where  cases  are  new  in  their  principle,  there  I 
admit  that  it  is  necessary  to  have  recourse  to  legislative  interposi- 
tion in  order  to  remedy  the  grievance;  but  where  the  case  is 
only  new  in  the  instance,  and  the  only  question  is  upon 
[*74]  the  application  of  a  *  principle  recognised  in  the  law  to 
such  new  case,  it  will  be  just  as  competent  to  Courts  of 
justice  to  apply  the  principle  to  any  case  which  may  arise  two 
centuries  hence  as  it  was  two  centuries  ago.  If  it  were  not  so, 
we  ought  to  blot  out  of  our  law  books  one-fourth  part  of  the  cases 
that  are  to  be  found  in  them. " 

First  it  is  said  that  the  company  were  acting  within  their 
legal  rights  in  discharging  the  plaintiffs.  So  they  were ;  but  does 
that  affect  the  question  of  the  responsibility  of  the  person  who 
caused  them  so  to  act  by  the  means  he  used  ?  The  scholars  who 
went  away  from  the  school  were  entitled  to  do  so.  The  miners 
were  entitled  to  cease  working  at  the  quarry.  The  natives  were 
entitled  to  avoid  running  the  risk  of  being  shot;  but  the  ques- 
tion is,  What  was  the  cause  of  their  thus  exercising  their  legal 
right  ? 

The  question  must  be  whether  what  was  done  in  fact,  and 
what  did  in  fact  procure  the  dismissal  of  the  plaintiff,  was  an 
actionable  wrong  or  not.  I  have  never  heard  that  a  man  who 
was  dismissed  from  his  service  by  reason  of  some  slander  could  not 
maintain  an  action  against  the  slanderer  because  the  master  had  a 
legal  right  to  discharge  him. 

In  treating  the  question  I  can  desire  no  more  apt  exposition  of 
the  law  than  what  is  contained  in  Bowen,  L.  J.  's  admirably 
reasoned  judgment  in  the  Mogul  Case,  23  Q.  B.  D.  614,  in  the 
Court  of  Appeal :  "  Intimidation,  obstruction,  and  molestation  are 
forbidden;  so  is  the  intentional  procurement  of  a  violation  of 
individual  rights,  contractual  or  other,  assuming  always  that 
there  is  no  just  cause  for  it.  The  intentional  driving  away  of 
customers  by  show  of  violence :  Tarleton  v.  M*Gawley,  1  Peake 
N.  P.  C.  270  (3  R  R  689) ;  the  obstruction  of  actors  on  the  stage 


B.  C.  VOL.  XVII.]      SECT.  V.  —  RELATION  AS  TO  THIRD   PARTIES.        295 
Ho.  12.  —  Alloi  Y.  Flood,  1888,  A.  C.  74,  75. 

by  preconcerted  hissing:  Clifford  v.  Brandon,  2  Camp.  358  (11  R 
R  731) ;  Gregory  v.  Brunswick,  6  Man.  &  G.  205,  953 ;  the  dis- 
turbance  of  wild  fowl  in  decoys  by  the  firing  of  guns :  Carrington 
V.  Taylor,  11  East,  571  (11  R  R  270),  and  Keelle  v.  ffickeringill, 
11  East,  574  71.  (11  R  R  273  n.);  the  impeding  or  threatening 
servants  or  workmen:  Garret  v.  Taylor,  Cro.  Jac.  567;  the  in- 
ducing persons  under  personal  contracts  to  break  their  con- 
tracts: *Bowen  v.  Hall,  6  Q.  B.  D.  333;  Zumley  v.  Gye,  2  [*75] 
K  &  B.  216,  — all  are  instances  of  such  forbidden  acts. " 

It  will  be  observed  that  in  what  Bowen,  L  J.,  says,  intimida- 
tion, obstruction,  or  molestation,  or  intentional  procurement  of  a 
violation  of  individual  rights  contractual  or  other  (always  assum- 
ing that  there  is  no  just  cause  for  it),  are  each  of  them,  where 
damage  has  been  caused,  actionable  wrongs.  And  so  Sir  William 
Erle,  in  a  passage  quoted  by  the  late  Master  of  the  Eolls  (Lord 
EsHER),  points  out  that  "  every  person  has  a  right  under  the  law, 
as  between  himself  and  his  fellow-subjects,  to  full  freedom  in  dis- 
posing of  his  own  labour  or  his  own  capital  according  to  his  own 
will.  It  follows  that  every  other  person  is  subject  to  the  correla- 
tive duty  arising  therefrom,  and  is  prohibited  from  any  obstruc- 
tion to  the  fullest  exercise  of  this  right  which  can  be  made 
compatible  with  the  exercise  of  similar  rights  by  others.  Every 
act  causing  an  obstruction  to  another  in  the  exercise  of  the  right 
comprised  within  this  description,  done,  not  in  the  exercise  of 
the  actor's  own  right,  but  for  the  purpose  of  obstruction,  would, 
if  damage  should  be  caused  thereby  to  the  party  obstructed, 
be  a  violation  of  this  prohibition  "  (Erie  on  Trade  Unions, 
p.   12). 

The  Lord  Justice  was  too  keen  a  reasoner  not  to  observe  that 
the  words  "  without  just  cause  or  excuse  "  which  he  had  used 
required  exposition  to  render  his  reasoning  complete,  and  accord- 
ingly he  explains  in  another  part  of  his  judgment  what  his  view 
was  of  malice.  His  Lordship  thus  describes  the  state  of  mind 
which,  in  his  view,  would  negative  just  cause  or  excuse  (MogtU 
Steamship  Co.  v.  McGregor,  Gow,  &  Co,,  23  Q.  B.  D.  613) :  "  Now 
intentionally  to  do  that  which  is  calculated  in  the  ordinary  course 
of  events  to  damage,  and  which  does,  in  fact,  damage  another  in 
that  other  person's  property  or  trade,  is  actionable  if  done  without 
just  cause  or  excuse.  Such  intentional  action,  when  done  with- 
out just  cause  or  excuse,  is  what  the  law  calls  a  malicious  wrong. 


296  MASTER  AND  SERVANT. 

Ho.  12.  >-A]lai  ▼.  Flood.  1898,  A.  C.  75,  76. 

See  Bromage  v.  Pros&er,  4  B.   &  C.   247  (28  R   R  241) ;  Capital 
and  Counties  Bank  v.  Henty,  7  App.  Cas.   741,  at  p.   772,  per 

Lord  Blackburn." 
[*  76]  *  My  Lords,  I  must  for  my  own  part  disclaim  the  idea 
that  you  can  get  rid  of  observations  such  as  these  in  the 
learned  Judge's  judgment  by  saying  that  they  are  obiter.  Of 
course,  one  is  familiar  with  the  observation  that  such  and  such  an 
opinion  expressed  by  a  learned  Judge  was  not  necessary  for  the 
decision  of  the  case.  But  where  a  distinction  is  being  drawn 
between  what  is  lawful  and  what  is  not,  and  where,  as  in  this 
case,  the  observations  form  part  of  the  reasoning  by  which  the 
conclusion  is  arrived  at,  it  appears  to  me  that  whichever  way  the 
decision  may  be,  one  part  of  the  judgment  is  as  much  an  authori- 
tative exposition  of  the  law  as  the  other. 

Now,  it  will  be  observed  that  Bowen,  L.  J. ,  points  out  that  not 
only  contractual  rights  are  comprehended  within  his  view  but 
other  rights,  such  as  the  right  to  carry  on  the  business  of  an  actor 
and  the  like. 

In  the  same  case,  when  appealed  to  this  House  ([1892]  A.  C. 
38),  it  appears  to  me  that  the  principle  upon  which  that  decision 
was  arrived  at  is  an  important  one,  as  excluding  what  is  here 
suggested  to  be  lawful.  I  myself  asked  in  that  case :  "  What 
legal  right  is  interfered  with?  What  coercion  of  the  mind  or 
will  or  of  the  person  is  effected  ?  All  are  free  to  trade  upon  what 
terms  they  will,  and  nothing  has  been  done,  except  in  rival  trad- 
ing, which  can  be  supposed  to  interfere  with  the  appellants' 
interests. " 

Lord  Watson  pointed  out  that  the  withdrawal  of  agents  at  first 
appeared  to  him  to  be  a  matter  attended  with  difficulty,  but  that 
on  consideration  he  was  satisfied  that  it  could  not  be  regarded  as 
an  illegal  act :  "  In  the  first  place,  it  was  impossible  that  any 
honest  man  could  impartially  discharge  his  duty  of  finding 
freights  to  parties  who  occupied  the  hostile  position  of  the  appel- 
lants and  respondents ;  and,  in  the  second  place,  the  respondents 
gave  the  agents  the  option  of  continuing  to  act  for  one  or  other  of 
them  in  circumstances  which  placed  the  appellants  at  no  disad- 
vantage. "  And  he  added  "  that  it  had  not  been  proved  and  not 
been  suggested  that  the  respondents  used  either  misrepresentation 
or  compulsion  for  the  purpose  of  attaining  the  object  of  their 
combination. " 


B.  C.  VOL.  XVII.]      SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        297 
Ho.  18.  — AUen  v.  Flood,  1898,  A.  0.  76-78. 

And  Lord  Bramwell  begins  his  judgment  by  saying  that 
the  *  plaintiflfs  in  that  case  "  did  not  complain  of  any  [*  77] 
trespass,  violence,  force,  fraud,  or  breach  of  contract,  nor 
of  any  direct  tort  or  violation  of  any  right  of  the  plaintiffs,  like 
the  case  of  firing  to  frighten  birds  from  a  decoy ;  nor  of  any  act 
the  ultimate  object  of  which  was  to  injure  the  plaintiffs  having 
its  origin  in  malice  or  ill-will  to  them. " 

Lord  Morris  expressed  his  intention  to  adopt  entirely  the 
principles  laid  down  by  Bowen,  L  J.  ;  and  Lord  Macnaghten 
read  and  adopted  Lord  Bramwell's  judgment. 

Lord  Field  justifies  his  opinion,  which  he  says  may  be  sup- 
ported upon  the  principles  laid  down  in  Keeble  v.  Hickeringill, 
11  East,  574  n.  (11  R  R  273  ti.  ),  as  to  which  I  shall  have  a 
word  to  say  hereafter.  But  he  goes  on  to  say  that  "  everything 
that  was  done  by  the  respondents  was  done  in  the  exercise  of  theii 
right  to  carry  on  their  own  trade,  and  was  bond  fide  so  done. 
There  was  not  only  no  malice  or  indirect  object  in  fact,  but  the 
existence  of  the  right  to  exercise  a  lawful  employment,  in  the 
pursuance  of  which  the  respondents  acted,  negatives  the  presump- 
tion of  malice  which  arises  when  the  purposed  infliction  of  loss 
and  injury  upon  another  cannot  be  attributed  to  any  legitimate 
cause,  and  is  therefore  presumably  due  to  nothing  but  its  obvious 
object  of  harm. " 

And  Lord  Hannen  says  "  that  he  considered  that  a  different 
case  would  have  arisen  if  the  evidence  had  shown  that  the  object 
of  the  defendants  was  a  malicious  one;  namely,  to  injure  the 
plaintiffs,  whether  they,  the  defendants,  should  be  benefited  or 
not '  And  he  concludes  his  judgment  by  saying  "  that  it  appears 
to  him  that  in  that  case  there  was  nothing  indicating  an  intention 
to  injure  the  plaintiffs,  except  in  so  far  as  such  injury  would  be 
the  result  of  the  defendants  obtaining  for  themselves  the  benefits 
of  the  carrying  trade,  by  giving  better  terms  to  customers  than 
their  rivals,  the  plaintiffs,  were  willing  to  offer.* 

My  Lords,  I  have  been  careful  to  call  attention  to  the  opinions 
of  the  noble  and  learned  Lords,  not  only  because  I  think  a  use  has 
been  made  of  the  decision  in  that  case  which  is  not  justified  by 
anything  in  the  opinions  delivered,  but  rather  because  I 
*  think  that,  upon  the  principles  I  have  indicated  before,  [*  78] 
these  opinions  form  a  very  considerable  body  of  authority 
that,  if  the  elements  which  each  noble  Lord  in  turn  pointed  out 


298  MASTER  AND   SERVANT. 


Vo.  12.  —  AUen  v.  Flood,  188S,  A.  C.  78,  79. 


did  not  exist  iu  that  case  had  in  fact  existed,  the  decision  would 
have  been  the  other  way. 

My  Lords,  I  do  not  think  that  the  case  of  Keehle  v.  Hickeringill 
stands  alone,  though  if  it  did,  considering  who  decided  it,  and 
that  certainly  in  later  years  it  has  been  much  quoted  and  com- 
mented on,  and  never  until  now,  so  far  as  I  am  aware,  criticised 
or  questioned,  I  should  be  quite  content  to  rely  upon  the  authority 
of  so  profound  a  lawyer  as  Sir  John  Holt,  and  such  an  expositor 
as  he  was  of  the  spirit  of  freedom  which  runs  through  the  English 
law;  but  it  will  be  also  observed  that  in  this  House  Lords 
Bramwell  and  Field,  and  in  the  Court  of  Appeal  Bowen,  L.  J. , 
assume  it  to  be  good  law. 

It  is  interesting  to  observe  that  that  case  has  been  recognised 
and  acted  upon  in  the  American  courts,  where  these  questions  of 
capital  and  labour  have  not  infrequently  arisen. 

In  Walker  v.  Cronin,  107  Mass.  555,  it  was  held  that  an  action 
of  tort  would  lie  upon  a  count  alleging  that  the  plaintifif  was  a 
manufacturer  of  shoes,  and  for  the  prosecution  of  his  business  it 
was  necessary  for  him  to  employ  many   shoemakers;  that  the 
defendant,  well  knowing  this,  did  unlawfully,  and  without  justi- 
fiable cause,  molest  him  in  carrying  on  the   said  business  with 
the  unlawful  purpose  of  preventing  him  from  carrying  it  on,  and 
wilfully  induced  many  shoemakers  who  were  in  his  employment, 
and  others  who  were  about  to  enter  into  it,  to  abandon  it  without 
his  consent  and  against  his  will,  and  that  thereby  he  lost  their 
services  and  the  profits,  &c. ,  to  be  derived  therefrom,  and  was  put 
to  expense,  &c.     The  second  count  alleges  contracts  between  the 
plaintiff  and  the  shoemakers  to  make  stock  into  shoes,  and  that 
the  defendant,  *'  well  knowing  this,  with  the  unlawful  purpose  of 
preventing  him    (the   plaintiff)   from  carrying  on  his  business, 
induced  them  to  return  the  stock  unfinished  to  the  factory,  and  to 
neglect  and  refuse  to  make  it  into  shoes  as  they  had  agreed  to 
do."     The  third  count  alleges  that  the  defendant  enticed 
[*79]  and  procured  a  shoemaker  in  the  plaintiff's  service* and 
employment  who  had  agreed  to  make  three  cases  of  shoes 
to  leave  the  plaintiff's  service  and  employment.     There  was  a 
demurrer  to  the  declaration,  and  this  demurrer  was  allowed  in  the 
Superior  Court,  whereupon  the  plaintiff  appealed.     Wells,   J., 
after  citing  Com.  Dig.,  Action  on  the  Case,  A :  "In  all  cases  where 
a  man  has  a  temporal  loss  or  damage  by  the  wrong  of  another,  he 


B.  C.  VOL.  XVn.]      SECT.  V. — RELATION  AS   TO  THIRD  PARTIES.        299 
Ko.  12.  —  AUen  ▼.  Flood,  1898,  A.  G.  79,  80. 

may  have  an  action  on  the  case  to  be  repaired  in  damages, "  goes 
on  to  review  in  order  Keeble  v.  HickeringUl,  11  East,  574,  n.  (11 
R  R  273  w.);  Tarleton  v.  M'Gawley,  1  Peake  N.  P.  C.  270  (3 
R  R  689) ;  Green  v.  Button,  2  C,  M.  &  R  707 ;  Gunter  v.  Astor 
(1819),  4  J.  B.  Moore,  12  (21  R  R  733) ;  Hart  v.  Aldridge 
(1774),  1  Cowp.  54 ;  SJiepfierd  v.  Wakeman,  1  Sid.  79 ;  Winsmore 
v.  Greenbank  (1745),  Willes,  577;  Lumlei/  v.  Gye,  2  E.  &  B.  216. 
He  overruled  the  demurrer,  and,  holding  that  the  declaration 
sufficiently  alleged  (1)  intentional  and  wilful  acts,  (2)  calculated 
to  cause  damage  to  the  plaintiff  in  his  lawful  business,  (3)  done 
with  the  unlawful  purpose  to  cause  such  damage  and  loss  without 
right  or  justifiable  cause  on  the  part  of  the  defendant  (which  con- 
stitutes malice),  and  (4)  actual  damage  and  loss  resulting,  held 
that  each  of  the  three  counts  disclosed  a  good  cause  of  action. 
•  This  decision, "  continues  the  learned  Judge,  "  does  not  apply  to 
a  case  of  interference  by  way  of  friendly  advice,  honestly  given ; 
nor  is  it  in  denial  of  the  right  to  free  expression  of  opinion.  We 
have  no  occasion  now  to  consider  what  would  constitute  justifiable 
cause. " 

Benton  v.  Pratt  (1829),  2  Wend.  385,  and  Rice  v.  Manley  (1876), 
66  N.  Y.  (21  Sickels)  82,  were  both  cases  where  the  defendant 
through  false  words  caused  a  third  person,  who  had  entered  into 
contracts  of  sale  (in  the  first-named  case  of  cheese,  in  the  second 
of  hogs)  void  by  the  Statute  of  Frauds,  to  break  such  contracts. 
An  action  was  held  to  lie  in  each  case. 

In  Bixby  v.  Dunlap,  22  Amer.  Rep.  475,  it  was  held  that 
exemplary  damages  could  be  recovered  from  a  defendant  who 
knowingly  procured  a  servant  to  leave  a  master  whom  she  had 
contracted  to  serve  without  ever  being  actually  in  his  em- 
ployment. Lvmley  v.  *  Gye  is  here  taken  as  having  laid  [*  80] 
down  the  law  on  this  subject 

In  Angle  v.  Chicago,  &c.  By.  Co.  (1893),  151  U.  S.  1,  it  was 
alleged  that  the  United  States  had  granted  lands  in  the  State  of 
Wisconsin  in  aid  of  the  construction  of  railways.  The  State  of 
Wisconsin  had  granted  a  portion  of  these  lands  to  the  defendant 
company  for  the  purpose  of  constructing  a  particular  railway.  It 
had  also  granted  other  lands  to  another  company,  the  Portage 
Company,  to  construct  another  and  somewhat  competing  railway : 
this  latter  railway  was  to  be  completed  within  a  certain  time. 
This  could  not  be  done,  and  the  State  of  Wisconsin  enlarged  the 


300  MASTER  AND   SERVANT. 

Ho.  18.  —  Allan  v.  Flood,  1898,  A.  C.  80,  81. 

time  for  completion.  The  Portage  Company  then  employed  the 
plaintiff  to  complete  the  line,  and  he  was  actively  prosecuting 
the  work  when  the  defendant  company,  conspiring  with  certain 
oflScials  of  the  Portage  Company,  induced  the  State  of  Wisconsin 
to  revoke  the  concession  to  the  Portage  Company,  whereby  the 
plaintiff  lost  his  employment.  He  accordingly  brought  his  action. 
The  Court  held,  following  LwmUy  v.  Gyt  and  Bowen  v.  Sail, 
6  Q.  B.  D.  333,  that  the  defendant  company  were  liable  to  the 
plaintiff. 

My  Lords,  I  now  revert  to  that  part  of  the  case  which  I  admit 
has  to  be  carefully  considered :  whether  in  what  the  defendant  did 
in  order  to  procure  the  dismissal  of  the  plaintiffs  he  came  within 
any  of  the  rules  which  have  been  laid  down  in  the  cases  quoted. 
Now,  to  my  mind,  he  was  guilty  of  intimidation  and  coercion 
through  that  intimidation.  In  using  that  word  "  intimidation, "  I 
am  not  using  it  in  the  technical  sense  which  the  statutes  upon  the 
subject  have  been  construed  to  mean;  I  will  explain  in  what  sense 
I  do  understand  the  word ;  but  in  passing  I  must  deprecate  the 
language  which  has  been  used  to  minimise  the  effect  of  what  Allen 
said.  I  observe  it  is  described  as  "  inconvenience. '  That  is  not 
how  it  is  described  by  the  witness.  Edmonds,  the  foreman  of  the 
Glengall  Company,  thus  describes  what  would  have  been  the  effect 
upon  the  business  of  the  firm.  He  says :  "  They  were  rather  busy 
just  then  with  the  boiler-makers ;  that  they  employed  three 
[*  81]  times  *  as  many  boiler-makers  as  shipwrights,  and  if  the 
boiler-makers  had  knocked  off  work  or  struck,  it  would 
have  stopped  the  business  of  the  company  altogether  —  entirely 
—  at  that  time,  and  that  it  was  a  very  serious  matter  to  the  firm, 
and  that  the  discharge  of  the  men  was  in  order  to  prevent  their 
having  to  stop  their  business. " 

My  Lords,  it  seems  to  me  very  obvious  to  ask  whether  the 
threat  to  do  that  which  will  have  such  an  effect  as  the  witness 
described  is  a  coercion  of  the  will  or  not  The  men  were  good 
workmen  and  of  good  character ;  they  were  working,  even  accord- 
ing to  Allen's  own  view,  at  their  own  trade  as  shipwrights,  but 
they  had  worked  upon  a  former  occasion  for  a  different  employer 
upon  an  iron  ship. 

I  think  the  dissatisfaction  among  the  boiler-makers  at  these 
two  men  being  employed  has  been  greatly  exaggerated.  The  man 
Elliott,  who  actually  sent  for  Allen,  gives  this  account  of  it: 


R.  C.  VOL.  XVII.]      SECT.  V, — RELATION  AS  TO  THIRD  PARTIES.       301 
Ko.  12.  —  AU«n  ▼.  Flood,  1898,  A.  C.  81,  83. 

"  We  were  having  a  talk  together  at  breakfast-time,  and  some  of 
them  felt  dissatisfied  about  it  Some  of  them  said  we  had  better 
leave  our  work  I  said,  '  Do  not  do  anything  of  the  kind. '  .  .  . 
I  sent  a  telegram  to  Allen.  .  .  .  When  I  met  Mr.  Allen  at  break- 
fast-time the  next  morning  he  said  to  me,  '  Well,  what  is  this 
here  little  bit  of  a  trouble  here  ? '  '  Well, '  I  said,  '  the  chaps  are 
dissatisfied  about  these  here  two  plaintiflFs  Flood  and  Taylor  being 
in  the  habit  of  working  over  at  Mills  &  Knight's. '  '  Well, '  he 
said,  '  what  do  they  want  ? '  '  Some  of  them  are  saying  they  are 
going  to  leave  their  work. '  He  says,  '  The  best  thing  you  can  do 
is  to  go  in  and  tell  them  not  to  leave  their  work  until  things  are 
settled ;  wait  and  see  how  things  settle. '  I  said,  '  Very  good ;  I 
will  tell  them  what  you  say  now. '  ' 

The  cross-examination  is  important  with  reference  to  what  took 
place  afterwards,  and  as  exhibiting  the  extent  and  degree  to  which 
even  some  of  the  men  —  for  it  goes  no  further  —  expressed  their 
wishes.  The  learned  counsel  asks :  "  Their  wishes  were  that  these 
men  whose  conduct  they  objected  to  at  Mills  &  Knight's  should 
not  be  kept  in  the  same  employ  with  themselves  ?  —  (A. )  Oh,  no. 
(Q.)  That  was  the  feeling,  was  it  not?  — (A.)  No.  (Q.) 
Well,  let  me  understand,  — (A.)  They* did  not  say  they  [*82] 
should  not  be  kept  in  the  employ  of  the  firm  at  all.  (Q. ) 
They  did  not  say  they  should  not  be  kept  on  the  job  on  which 
they  were  being  employed  ?  —  (A. )  They  did  not  wish  them  among 
our  midst.      (Q. )   Working  on  the  same  ship  ?  —  (A. )    Yes. " 

It  will  be  observed  how  limited  are  the  numbers  in  respect  of 
which  the  allegation  of  discontent  is  put  forward,  and  it  will  be 
observed  that  this  witness  entirely  repudiated  any  wish  to  prevent 
these  men  being  employed ;  but  even  that  wish  is  limited  to  the 
desire  that  they  should  not  be  employed  upon  the  same  ship. 
But  perhaps  the  most  astonishing  part  of  the  case  is  to  be  found 
in  Allen's  own  evidence. 

Allen  denies  that  he  had  ever  said  anything  about  the  men  being 
called  out  He  denies  in  terms  that  he  said  the  same  thing 
would  happen  in  any  yard  where  the  two  men  were  employed. 
He  denies  that  he  used  that  memorable  language,  "  We  have 
made  up  our  minds  that  wherever  it  is  known  that  there  are  any 
shipwrights  who  have  been  engaged  doing  ironwork  the  boiler- 
makers  will  leave  work  in  that  yard.  *  Being  asked  whether  he 
wished  the  step  to  be  taken  of  the  two  men  being  discharged,  he 


302  MASTER  AND   SERVANT. 


Ko.  13*  —  Allan  V.  Flood,  1898,  A.  C.  82,  88. 


said,  "  He  had  no  such  thought  floating  in  his  mind  at  the  time.  * 
This  is,  of  course,  in  direct  conflict  with  the  evidence  given  by 
the  manager  and  the  foreman  of  the  Glengall  Company ;  but,  as  I 
have  said,  the  credibility  of  the  witness  was  for  the  jury  and  not 
for  me. 

And  now  it  is  important  to  call  attention  to  the  exact  question 
which  was  left  to  the  jury.  Kennedy,  J. ,  said :  "  The  question 
that  I  want  you  to  answer  is  that,  if  you  find  he  induced  the 
Glengall  Iron  Company  by  the  threat  which  is  suggested  by  the 
plaintiffs  of  calling  out  all  the  men  on  strike,  and  he  continued  in 
that  course  of  conduct  if  there  was  any  attempt  to  employ  them 
again,  did  he  do  that  with  the  malicious  intention  which  I  have 
endeavoured  to  explain,  that  is  merely,  not  for  the  purpose  of  for- 
warding that  which  he  believed  to  be  his  interest  as  a  delegate  of 
his  union  in  the  fair  consideration  of  that  interest,  but  for  the 
purpose  of  injuring  these  plaintiffs,  and  preventing  them  doing 
that  which  they  were  each  of  them  entitled  to  do. "  Observe 
[•  83]  the  phrase  used,  *  "  the  threat  suggested  by  the  plaintiffs  of 
calling  out  all  the  men  on  strike, "  and  that  that  induced 
the  Glengall  Iron  Company  to  discharge  the  plaintiffs ;  and  yet  it 
is  to  be  said  that  Allen's  threat  had  nothing  to  do  with  the  dis- 
charge of  the  plaintiffs.  It  will  be  observed  that  Kennedy,  J. , 
draws  a  distinction  between  the  conduct  which  he  assumes  to  be 
lawful  on  Allen's  part  to  do  what  he  did  do  if  it  were  merely  for 
the  purpose  of  forwarding  that  which  he  believed  to  be  his  interest 
as  a  delegate  of  his  union  in  fair  consideration  of  that  interest  on 
the  one  hand,  and  on  the  other  hand  his  conduct  if  what  he  did 
was  done  for  the  purpose  of  injuring  these  plaintiffs. 

My  Lords,  it  appears  to  me  that  that  is  a  direction  of  which 
the  defendants  cannot  complain,  since  it  puts  what  is  to  my  mind 
an  alternative  more  favourable  to  them.  In  my  view,  his  belief 
that  what  he  was  doing  was  for  his  interest  as  a  delegate  of  his 
union  would  not  justify  the  doing  of  what  he  did  do.  It  is 
alleged,  and  to  my  mind  and  to  the  mind  of  the  jury  proved,  that 
the  employers  were  compelled  under  pressure  of  the  threats  that 
he  used  to  discharge  the  plaintiffs. 

I  have  not  used  the  word  "  intimidated, "  because  I  observe  the 
learned  Judge  says  there  was  no  intimidation  in  a  legal  sense. 
If  what  was  meant  by  that  was  that  there  was  no  threat  of  violence 
to  person  or  property,  it  is  true ;  but  the  word  "  intimidation  "  is 


B.  0.  VOL.  XVII.]      SECT.  Y.  —  RELATION  AS  TO  THIRD  PARTIES.        303 
Vo.  18.  —Allan  v.  Flood,  1898,  A.  G.  88,  84. 

not  always  to  be  construed  as  it  has  been  construed  under  6  Geo. 
IV. ,  c.  129.  The  construction  of  it  in  that  statute  flowed  from 
the  other  words  with  which  the  word  **  intimidate  '  is  associated ; 
and  if,  without  using  the  word  **  intimidate, '  that  which  was 
held  out  as  the  inducement  to  dismiss  the  plaintifiGs  was  that  such 
a  stoppage  of  the  works  should  be  occasioned  as  that  the  business 
of  the  company  would  seriously  suffer,  I  should  think  that  would 
be  a  thing  which  would  be  likely  to  produce  fear  of  the  conse- 
quences of  the  company  retaining  them  in  their  employment,  and 
a  company  which  abstained  from  doing  so  by  reason  of  that  fear 
would  justly  be  described  as  **  intimidated. " 

But  the  objection  made  by  the  defendants  appears  to  be  that 
the  word  "  malicious  '  adds  nothing;  that  if  the  thing  was  lawful 
it  was  lawful  absolutely;  if  it  was  not  lawful  it  was 
*  unlawful  —  the  addition  of  the  word  "  malicious  "  can  [*  84] 
make  no  difference.  The  fallacy  appears  to  me  to  reside 
in  the  assumption  that  everything  must  be  absolutely  lawful  or 
absolutely  unlawful.  There  are  many  things  which  may  become 
lawful  or  unlawful  according  to  circumstances. 

In  a  decision  of  this  House  it  has  undoubtedly  been  held  that 
whatever  a  man's  motives  may  be,  he  may  dig  into  his  own  land 
and  divert  subterranean  water  which  but  for  his  so  treating  his 
own  land  might  have  reached  his  neighbour's  land.  But  that  is 
because  the  neighbour  had  no  right  to  the  flow  of  the  subterra- 
nean water  in  that  direction,  and  he  had  an  absolute  right  to  do 
what  he  would  with  his  own  property.  But  what  analogy  has 
such  a  case  with  the  intentional  inflicting  of  injury  upon  another 
person's  property,  reputation,  or  lawful  occupation  ?  To  dig  into 
one's  own  land  under  the  circumstances  stated  requires  no  cause 
or  excuse.  He  may  act  from  mere  caprice,  but  his  right  on  his 
own  land  is  absolute,  so  long  as  he  does  not  interfere  with  the 
rights  of  others. 

But,  referring  to  Bowen,  L.  J. 's  observation,  which  to  my 
mind  is  exactly  accurate,  "  in  order  to  justify  the  intentional 
doing  of  that  which  is  calculated  in  the  ordinary  course  of  events 
to  damage,  and  which  does,  in  fact,  damage  another  in  that  other 
person's  property  or  trade,"  you  must  have  some  just  cause  or 
excuse. 

Now,  the  word  "  malicious "  appears  to  me  to  negative  just 
cause  or  excuse ;  and  without  attempting  an  exhaustive  exposition 


304  MASTER  AND   SERVANT. 

Ko.  12.— AU«n  T.  Flood,  1898,  A.  C.  84,  85. 

of  the  word  itself,  it  appears  to  me  that,  if  I  apply  the  language 
of  BowEN,  L.  J.,  it  is  enough  to  show  that  this  was  within  the 
meaning  of  the  law  **  malicious. " 

It  appears  to  me  that  no  better  illustration  can  be  given  of  the 
distinction  on  which  I  am  insisting  between  an  act  which  can  be 
legally  done  and  an  act  which  cannot  be  so  done  because  tainted 
with  malice,  than  such  a  colloquy  between  the  representative  of 
the  master  and  the  representative  of  the  men  as  might  have  been 
held  on  the  occasion  which  has  given  rise  to  this  action.  If  the 
representative  of  the  men  had  in  good  faith  and  without  indirect 
motive  pointed  out  the  inconvenience  that  might  result 
[*  85]  from  having  two  sets  of  men  working  together  on  *  the  same 
ship,  whose  views  upon  the  particular  question  were  so 
diverse  that  it  would  be.  inexpedient  to  bring  them  together,  no 
one  could  have  complained ;  but  if  his  object  was  to  punish  the 
men  belonging  to  another  union  because  on  some  former  occasion 
they  had  worked  on  an  iron  ship,  it  seems  to  me  that  the  differ- 
ence of  motive  may  make  the  whole  difiference  between  the  law- 
fulness or  unlawfulness  of  what  he  did. 

I  see  it  is  suggested  by  one  of  your  Lordships  that  the  action 
for  malicious  prosecution  is  supposed  to  be  an  exception.  I  am 
not  quite  certain  that  I  understand  what  is  the  proposition  to 
which  it  is  an  exception.  If  it  means  that  there  is  no  other  form 
of  procedure  known  to  the  law  wherein  malice  may  make  the  dis- 
tinction between  a  lawful  and  an  unlawful  act,  I  am  imable  to 
agree.  Maliciously  procuring  a  person  to  be  made  a  bankrupt, 
maliciously  and  without  reasonable  or  probable  cause  presenting 
a  petition  to  wind  up  a  company,  or  maliciously  procuring  an 
arrest,  are  equally  cases  wherein  the  state  of  mind  of  the  person 
procuring  the  arrest  may  aflfect  the  question  of  the  lawfulness  or 
unlawfulness  of  the  act  done. 

Again,  in  slander  or  libel  the  right  to  preserve  one's  character 
or  business  from  attack  appears  to  me  quite  as  vague  and  general 
a  right  as  it  is  suggested  is  the  right  to  pursue  one's  occupation 
unmolested ;  and  it  cannot  be  denied  that  in  both  these  cases  the 
lawfulness  or  unlawfulness  of  what  is  said  or  written  may  depend 
upon  the  absence  or  presence  of  malice. 

Doubtless  there  are  cases  in  which  the  mere  presence  of  malice 
in  an  act  done  will  not  necessarily  give  a  right  of  action,  since  no 
damage  may  result;  and  in  this  case,  however  malicious  Allen's 


B.  C.  VOL.  XVIL]      sect.  V.  —RELATION   AS  TO   THIRD  PARTIES.        305 
Ko.  18.  —  Allan  v.  Flood,  1898,  A.  C.  85,  86. 

intervention  may  have  been,  if  the  employers  had  defied  Allen's 
threats  instead  of  yielding  to  them,  the  plaintiffs  could  not  have 
succeeded  in  an  action,  because  they  would  not  have  been  injured. 
See  Quartz  Hill  Co,  v.  Eyre,  11  Q.  B.  D.  674;  Oihhs  v.  Pike, 
9  M.  &  W.  351 ;  Jeninga  v.  Flormce  (1857),  2  C.  B.  (N.  S.)  467. 

On  the  same  principle  an  action  will  not  lie  against  a  sheriff 
for  a  false  return  to  a  writ  of  execution  if  the  plaintiff  has 
not  *  suffered  actual  damage  in  consequence  of  the  false  [*  86] 
return.     See  Wylie  v.  Birch  (1843),  4  Q.  B.  566. 

I  turn  now  to  the  course  of  the  trial,  which  is  important  in 
more  ways  than  one.  It  is  manifest  that  both  the  form  of  the 
statement  of  claim  and  the  evidence  directed  at  the  trial  were 
intended  to  raise  the  question  of  the  right  of  the  Boiler  Makers' 
Union  to  use  what  I  will  call  their  union  for  the  combined  action 
against  the  individual  plaintiffs  who  belonged  to  another  union. 

The  plaintiffs  apparently  proceeded  upon  the  assumption  that 
what  was  represented  to  them  as  having  been  said  by  Allen  was 
said  in  his  character  of  delegate  of  and  speaking  with  the  author- 
ity of  the  Boiler  Makers'  Union,  and,  accordingly,  the  general 
secretary  of  this  trades  \mion  and  the  chairman  at  the  time  of 
these  transactions  were  both  joined  as  defendants.  Had  they 
adopted  or  been  proved  to  authorise  the  course  taken  by  Allen, 
a  question  would  have  arisen  whether  or  not  they  were  all  three 
parties  to  a  conspiracy.  Whether  that  charge  could  have  been 
maintained  against  them  or  not  I  at  present  desire  to  say  nothing. 
Such  a  question  may  arise  again,  and  I  wish  to  keep  myself  free 
to  consider  that  question  when  it  arises.  But  the  chairman  and 
the  secretary  of  the  union  absolutely  disclaimed  any  general  or 
specific  authority  on  the  part  of  Allen  either  to  threaten  the 
employers  or  to  withdraw  the  men.  As  to  specific  authority,  the 
chairman  proved  that  he  had  never  heard  of  the  dispute  until  he 
was  served  with  the  writ  in  the  action.  He  says  in  terms  that  he 
never  gave  any  authority  to  Mr.  Allen  to  threaten  employers  to 
withdraw  men  from  the  work,  and  to  do  any  such  thing  he 
regarded  as  a  very  serious  matter  for  any  delegate  to  take  upon 
himself ;  and  so  far  was  he  from  adopting  what  Allen  is  sworn  to 
have  said,  namely,  that  the  union  would  hunt  the  two  men  out  of 
every  employment  where  they  were  known  to  be  because  they 
had  once  worked  on  an  iron  ship,  he  emphatically  denies  the  right 
of  his  union  to  do  anything  of  the  sort ;  he  says  in  terms,  "  Pro- 

VOL.  XVII.  —  20 


306  MASTER  AND   SERVANT. 

Vo.  12.— AU«n  T.  Flood,  1898  A.  C.  86-88. 

viding  that  the  shipwright  after  being  at  the  ironwork  started  in 

some  other  place,  for  instance,  then  I  would  say  we  have  no 

[*  87]  right  *  whatever  to  interfere  with  him  unless  we  were  then 

beginning  ironwork  again.     If  he  started  at  woodwork,  we 

would  not  interfere  with  him  in  any  other  place. " 

The  learned  counsel  then  put  a  question  to  him  (I  think  some- 
what under  a  misapprehension  as  to  what  the  learned  Judge 
himself  meant  by  a  question  he  put),  *  You  say  that  may  depend 
on  circumstances?"  And  his  answer  is,  "  I  do  not  say  they 
would  in  that  instance,  because  in  no  instance  have  I  ever  known 
men  interfering  with  him  when  he  went  to  some  other  works  and 
started  his  own  particular  work. " 

My  Lords,  I  think  it  is  only  just  to  the  Boiler  Makers'  Union 
to  point  out  how  emphatically  and  distinctly  their  authorised 
ofl&cers  (chairman  and  general  secretary)  disclaimed  any  such 
practice  or  principle  as  that  which  Allen  is  sworn  to  have  attrib- 
uted to  them;  and  accordingly  no  imputation  or  liability  could 
properly  be  attributed  to  the  Boiler  Makers'  Union  or  their 
authorised  ofScers.  But  does  that  relieve  Allen  from  the  conse- 
quences of  what  he  did? 

If  concerted  collective  action  to  enforce,  by  ruining  the  men's 
employment,  the  will  of  a  large  number  of  men  upon  a  minority, 
whether  the  minority  consists  of  a  small  or  of  a  laige  number,  be 
a  cause  of  action  where  the  actual  damage  is  produced,  it  would 
seem  to  be  a  very  singular  result  that  an  individual  who  falsely 
assumes  the  character  of  representing  a  laige  body,  uses  the  name 
of  that  large  body  to  give  force  and  support  to  the  threat  which  he 
utters,  and  so  produces  the  injury  to  the  individual,  or  to  the 
minority,  could  shield  himself  from  responsibility  by  proving  that 
the  body  whose  power  and  influence  he  had  falsely  invoked  as  his 
supporters  had  given  him  no  authority  for  his  threats ;  so  that,  if 
they  in  truth  authorised  him,  he  and  they  might  all  have  been 
responsible,  while  the  false  statement  that  he  made,  though  acting 
upon  the  employer  by  the  same  pressure  because  it  was  believed 
and  producing  the  same  mischief  to  the  person  against  whom  it 
was  directed,  could  establish  no  cause  of  action  against  himself 
because  it  was  false. 

My  Lords,  I  now  come  to  the  question  raised  upon  the  plead- 
ings, —  that  the  falsehood  of  Allen's  allegation  is  not  set 
[*  88]  *  out     I  venture  to  think  that  this  objection  is  founded 


B.  0.  VOL.  XVn.]      SECT.  V.  —  RELATION  AS  TO  THIRD   PARTIES.       307 
Ko.  12.  —  AU«n  V.  Flood,  1898,  A.  G.  88,  89. 

upon  an  erroneous  assumption  that  the  action  must  be  brought 
for  false  representations,  and  that  accordingly  the  false  represen- 
tations must  be  set  out  in  the  statement  of  claim.  As  I  say,  I 
think  this  is  an  erroneous  assumption;  that  the  action  is  what  it 
is ;  that  the  defendant  maliciously  and  wrongfully,  and  with  in- 
tent to  injure  the  plaintiffs,  intimidated  and  coerced  the  Glengall 
Iron  Company  not  to  enter  into  contracts  with  the  plaintiffs, 
whereby  the  plaintiffs  have  suffered  damage. 

The  objection  may  be  treated  as  one  of  form  or  as  one  of  sub- 
stance :  treating  it  as  one  of  form  only,  I  do  not  think  that  it  ever 
was  necessary  in  the  pleadings,  where  an  unlawful  procuring 
something  to  be  done  was  the  cause  of  action,  to  set  out  the 
means  by  which  that  something  was  procured.  It  is  not  neces- 
sary, says  WiLLES,  C.  J. ,  in  Winsmore  v.  Greeni)ank,  Willes,  577, 
"  to  set  forth  all  the  facts  to  show  how  a  thing  which  is  charged 
to  be  unlawfully  done  was  imlawful ;  that  would  make  the  plead- 
ings intolerable,  and  would  increase  the  length  and  expense  un- 
necessarily. "  And  even  in  an  indictment  for  conspiracy  it  is  not 
necessaiy  to  state  the  means  employed.  See  Bex  v.  Sterling 
(1664),  1  Lev.  125 ;  Bex  v.  Kinnersley  and  another  (1719),  1  Str. 
193;  see  also  Sydserffy.  Beg.  (1847),  11  Q.  B.  245. 

So  also  upon  an  indictment  under  37  Geo.  III.,  c.  70,  the 
preamble  of  which  states  that,  "  Whereas  divers  wicked  and  evil- 
disposed  persons,  by  the  publication  of  written  or  printed  papers, 
and  by  malicious  and  advised  speaking,  have  of  late  industriously 
endeavoured  to  seduce  persons  serving  in  His  Majesty's  forces  by 
sea  and  land  from  their  duty  and  allegiance  to  His  Majesty,  and 
to  incite  them  to  mutiny  and  disobedience, "  it  was  enacted  **  that 
any  person  who  shall  maliciously  and  advisedly  endeavour  to 
seduce  any  person  or  persons  serving  in  His  Majesty's  forces,  by 
sea  or  land,  from  his  or  their  duty  and  allegiance  to  His  Majesty, 
or  to  incite  or  stir  up  any  such  person  or  persons  to  commit  an  act 
of  mutiny,  **  &c. ,  should  be  guilty  of  felony.  It  was  held  that  it 
was  unnecessary  in  the  indictment  to  do  more  than  charge 
the  defendants  with  having  *  endeavoured  to  seduce  persons  [*  89] 
from  their  allegiance  without  setting  forth  any  of  the 
words  or  writings  by  which  that  endeavour  was  made.  Bex  v. 
Fuller  (1797),  1  Bos.  &  P.  180. 

If  treating  it  as  matter  of  substance,  the  objection  would  be 
that  without  giving  notice  to  the  defendant,  and  without  any  such 


308  MASTER  AND   SERVANT. 

Ko.  IS.— Allan  v.  Flood,  1898,  A.  C.  88,  90. 

specified  objection  being  submitted  to  the  jury,  it  was  being 
imputed  to  him  that  he  had  said  what  was  false,  it  is  almost 
impossible  to  suggest  that  here  there  could  be  any  such  objection 
of  substance.  What  he  said  and  did  by  way  of  inducement, 
threat,  or  coercion  was  in  truth  the  whole  question  in  the  case. 
He  gave  evidence  denying  what  was  imputed  to  him,  and,  so  far 
from  setting  up  the  right  on  behalf  of  his  union  to  exercise  their 
right  of  withdrawing  their  men  if  the  demand  for  the  discharge  of 
the  two  plaintiffs  were  not  complied  with,  he  absolutely  denied 
that  he  had  ever  done  so ;  and  the  proper  authorities  of  his  union, 
as  I  have  pointed  out  already,  negatived  any  authority  to  make 
such  representations  as  the  other  witnesses  proved  that  he  did 
make,  or  that  they  had  been  parties,  or  would  consent  to  be 
parties,  to  the  most  offensive  of  his  threats,  namely,  the  hunting 
down  of  the  two  shipwrights  because  they  had  once  worked  upon 
iron  ships.  This  question  was  before  the  jury,  and  the  jury  could 
not  have  answered  the  question  as  they  did  if  they  had  not  disbe- 
lieved Allen's  statement. 

It  seems  to  me,  therefore,  that  neither  in  substance  nor  in  form 
can  any  objection  be  made  to  the  topic  (for  it  is  but  the  topic,  and 
not  the  substance  of  the  cause  of  action)  that  he  was  guilty  of 
false  representations  as  fortifying  the  threats  that  he  was  making. 
It  can  scarcely  be  contended  that  because  he  had  not  that  author- 
ity behind  him  which  he  represented,  because  he  was  not  truly 
representing  either  the  wishes  or  the  commands  of  his  \mion,  that 
could  furnish  him  with  any  excuse.  As  well  might  it  be  con- 
tended that  the  highwayman  was  not  responsible  for  the  coercion 
he  exercised  towards  his  victim  if  he  put  a  pistol  to  his  head 
because  it  should  afterwards  turn  out  that  the  pistol  was 
unloaded. 

My  Lords,  I  regret  that  I  am  compelled  to  differ  so 
[*  90]  widely  *  with  some  of  your  Lordships ;  but  my  difference  is 
founded  on  the  belief  that  in  denying  these  plaintiffs  a  rem- 
edy we  are  departing  from  the  principles  which  have  hitherto  guided 
our  Courts  in  the  preservation  of  individual  liberty  to  all.  I  am 
encouraged,  however,  by  the  consideration  that  the  adverse  views 
appear  to  me  to  overrule  the  views  of  most  distinguished  Judges, 
going  back  now  for  certainly  two  hundred  years,  and  that  up  to  the 
period  when  this  case  reached  your  Lordships'  House  there  was 
a  unanimous  consensus  of  opinion ;  and  that  of  eight  Judges  who 


E,  C.  VOL.  XVn.]      SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        309 
No.  13.  — AUen  v.  Flood,  1886,  A.  G.  90,  91. 

have  given  us  the  benefit  of  their  opinions,  six  have  concurred  in 
the  judgments  which  your  Lordships  are  now  asked  to  overrule. 

Lord  Watson.  —  My  Lords,  this  appeal,  in  which  the  litigants 
are  members  of  two  rival  associations  of  working-men,  registered 
under  the  Trade  Unions  Act  of  1871,  raises  some  important  ques- 
tions, upon  which  there  appears  to  be  room  for  considerable  differ- 
ence of  opinion.  The  appellant  is  a  member,  and  the  London 
delegate,  of  the  boiler-makers'  society,  an  association  which 
restricts  the  labour  of  its  members  to  ironwork ;  whilst  the  two 
respondents  belong  to  the  society  of  shipwrights,  whose  members 
are  permitted  to  work  either  in  wood  or  iron  —  an  alternative 
which,  whether  rightly  or  wrongly,  is  not  regarded  with  favour 
by  the  boiler-makers. 

Li  the  month  of  April,  1894,  about  forty  men  of  the  boiler- 
makers'  society  were  engaged  at  the  Eegent  Dock,  Mill  wall,  in 
repairing  an  iron  ship,  on  the  employment  of  the  Glengall  Iron 
Company.  The  respondents  were  at  the  same  time  employed  by 
the  company  to  execute  repairs  upon  the  woodwork  of  the  vessel. 
The  boiler-makers  having  learned  that  the  respondents,  although 
they  were  at  that  time  engaged  in  carpenter-work,  had  on  previous 
occasions  undertaken  and  executed  ironwork  in  other  shipyards, 
resolved  that  they  would  not  continue  at  the  same  job  with  work- 
men who  wrought  in  iron  as  well  as  wood ;  and  they  were  accord- 
ingly prepared  to  leave  the  Eegent  Dock  in  a  body  as  soon  as  their 
engagement  with  the  Glengall  Iron  Company,  which  was  merely 
from  day  to  day,  expired.  Being  apprehensive,  however, 
that  they  might  not  be  allowed  *  strike  pay  by  their  union  [*  91] 
if  they  left  their  work  without  the  approval  of  some  of  its 
office-bearers,  they  on  April  12  telegraphed  for  the  appellant,  who, 
in  compliance  with  their  request,  went  to  the  yard  on  the  morning 
of  the  day  following.  He  was  there  met  by  one  of  the  workmen 
who  had  sent  for  him,  who  on  their  behalf  informed  him  that 
they  objected  to  the  respondents,  who  had  done  ironwork  else- 
where, working  among  them,  and  that  they  intended  in  conse- 
quence to  leave  the  work  on  that  day  after  the  dinner-hour.  The 
appellant  intimated  that  in  his  opinion  the  men  would  not  be 
justified  in  striking  work  as  they  contemplated  until  an  attempt 
had  been  made  to  settle  the  matter  otherwise.  He  then  had  an 
interview  with  the  managing  director  of  the  Glengall  Iron  Com- 
pany,  at  which  the  foreman  of  the  yard  was  present,  the  result 


j::— 


310  MASTEB  AND  SERVANT. 


No.  12.  —  AUen  ▼.  Flood,  1888,  A.  G.  81,  88. 


being  that  on  the  afternoon  of  the  same  day  the  services  of  the 
respondents  were  dispensed  with  by  the  company,  and  the  boiler- 
men  continued  at  their  work. 

The  present  action  was  brought  against  the  appellant  in  the 
beginning  of  July,  1894,  and  in  February,  1895,  it  was  tried 
before  Kennedy,  J. ,  and  a  jury,  who  returned  affirmative  answers 
to  these  two  questions :  "  (1)  Did  the  defendant  Allen  maliciously 
induce  the  Glengall  Iron  Company  to  discharge  the  plaintiffs,  or 
either  of  them,  from  their  employment?  (2)  Did  the  defendant 
Allen  maliciously  induce  the  Glengall  Iron  Company  not  to 
engage  the  plaintiffs,  or  either  of  them  ? '  and  assessed  damages 
to  each  of  the  respondents  at  £20. 

The  appellant  contends  that  judgment  ought  to  be  entered  in 
his  favour,  inasmuch  as  the  findings  of  the  jury,  when  rightly 
interpreted,  do  not  disclose  any  cause  of  action  against  him ;  and, 
alternatively,  that  these  findings  being  against  the  weight  of  evi- 
dence, the  case  ought  to  be  sent  back  for  new  trial.  I  have  not 
found  it  necessary  to  consider  the  second  of  these  propositions, 
having  arrived  at  the  conclusion  that  the  first  of  them  is  well 
founded. 

The  substance  of  the  verdict  may  be  resolved  into  these  three 
findings:  first,  that  the  Glengall  Iron  Company  discharged  the 
respondents  from  their  employment  and  did  not  re-engage  them ; 
secondly,  that  the  company  were  induced  to  do  so  by 
[•  92]  *  the  appellant;  and,  thirdly,  that  the  appellant  maliciously 
induced  the  action  of  the  company.  There  is  no  expression 
in  the  verdict  which  can  be  held,  either  directly  or  by  implica- 
tion, to  impeach  the  legality  of  the  company's  conduct  in  dis- 
charging the  respondents.  The  mere  fact  of  an  employer  discharging 
or  refusing  to  engage  a  workman  does  not  imply  or  even  suggest 
the  absence  of  his  legal  right  to  do  either  as  he  may  choose.  It 
is  true  that  the  company  is  not  a  party  to  this  suit ;  but  it  is  also 
obvious  that  the  character  of  the  act  induced,  whether  legal  or 
illegal,  may  have  a  bearing  upon  the  liability  in  law  of  the  person 
who  procured  it  The  whole  pith  of  the  verdict,  in  so  far  as  it 
directly  coucems  the  appellant,  is  contained  in  the  word  **  ma- 
liciously "  —  a  word  which  is  susceptible  of  many  different  mean- 
ings. The  expression  **  maliciously  induce, "  as  it  occurs  upon  the 
face  of  the  verdict,  is  ambiguous :  it  is  capable  of  signifying  that 
the  appellant  knowingly  induced  an  act  which  of  itself  constituted 


R.  C.  VOL.  XVIL]      sect.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        311 
No.  12. — Alkn  v.  Flood,  1898,  A.  G.  92,  93. 

a  civil  wrong,  or  it  may  simply  mean  that  the  appellant  procured, 
with  intent  to  injure  the  respondents,  an  act  which,  apart  from 
motive,  would  not  have  amounted  to  a  civil  wrong ;  and  it  is,  in 
my  opinion,  material  to  ascertain  in  which  of  these  senses  it  was 
used  by  the  jury. 

Although  the  rule  may  be  otherwise  with  regard  to  crimes,  the 
law  of  England  does  not,  according  to  my  apprehension,  take  into 
account  motive  as  constituting  an  element  of  civil  wrong.  Any 
invasion  of  the  civil  rights  of  another  person  is  in  itself  a  legal 
wrong,  carrying  with  it  liability  to  repair  its  necessary  or  natural 
consequences,  in  so  far  as  these  are  injurious  to  the  person  whose 
right  is  infringed,  whether  the  motive  which  prompted  it  be  good, 
bad,  or  indifferent  But  the  existence  of  a  bad  motive,  in  the 
case  of  an  act  which  is  not  in  itself  illegal,  will  not  convert  that 
act  into  a  civil  wrong  for  which  reparation  is  due.  A  wrongful 
act,  done  knowingly  and  with  a  view  to  its  injurious  consequences, 
may,  in  the  sense  of  law,  be  malicious ;  but  such  malice  derives 
its  essential  character  from  the  circumstance  that  the  act  done 
constitutes  a  violation  of  the  law.  There  is  a  class  of  cases  which 
have  sometimes  been  referred  to  as  evidencing  that  a  bad 
motive  *  may  be  an  element  in  the  composition  of  civil  [*  93] 
wrong ;  but  in  these  cases  the  wrong  must  have  its  root  in 
an  act  which  the  law  generally  regards  as  illegal,  but  excuses  its 
perpetration  in  certain  exceptional  circumstances  from  considera- 
tions of  public  policy.  These  are  well  known  as  cases  of  privi- 
lege, in  which  the  protection  which  the  law  gives  to  an  individual 
who  is  within  the  scope  of  these  considerations  consists  in  this, 
—  that  he  may  with  immunity  commit  an  act  which  is  a  legal 
wrong  and  but  for  his  privilege  would  aflford  a  good  cause  of  action 
against  him,  all  that  is  require^  in  order  to  raise  the  privilege 
and  entitle  him  to  protection  being  that  he  shall  act  honestly  in 
the  discharge  of  some  duty  which  the  law  recognises,  and  shall 
not  be  prompted  by  a  desire  to  injure  the  person  who  is  affected  by 
his  act.  Accordingly,  in  a  suit  brought  by  that  person,  it  is  usual 
for  him  to  allege  and  necessary  for  him  to  prove  an  intent  to 
injure  in  order  to  destroy  the  privilege  of  the  defendant  But 
none  of  these  cases  tend  to  establish  that  an  act  which  does  not 
amount  to  a  legal  wrong,  and  therefore  needs  no  protection,  can  have 
privilege  attached  to  it ;  and  still  less  that  an  act  in  itself  lawful 
is  converted  into  a  legal  wrong  if  it  was  done  from  a  bad  motive. 


312  MAST£R  AND  SERVANT. 


No.  18.  —  AU«n  V.  Flood,  1898,  A.  G.  98,  94. 


Lord  Bo  WEN  (at  that  time  Bowen,  L.  J.),  in  the  case  of  the 
Mogul  Steamship  Co.  v.  McGregor,  laid  it  down  that  in  order  to 
constitute  legal  malice  the  act  done  must,  apart  from  bad  motive, 
amount  to  a  violation  of  law.  The  learned  Judge,  with  his  accus- 
tomed accuracy  and  felicity,  said  (23  Q.  B.  D.  612) :  **  We  were 
invited  by  the  plaintiffs'  counsel  to  accept  the  position  from 
which  their  argument  started,  that  an  action  will  lie  if  a  man 
maliciously  and  wrongfully  conducts  himself  so  as  to  injure 
another  in  that  other's  trade.  Obscurity  resides  in  the  language 
used  to  state  this  proposition.  The  terms  *  maliciously, '  '  wrong- 
fully, '  and  '  injure  '  are  words  all  of  which  have  accurate  meanings, 
well  known  to  the  law,  but  which  also  have  a  popular  and  less 
precise  signification,  into  which  it  is  necessary  to  see  that  the 
argument  does  not  imperceptibly  slide.  An  intent  to  '  injure  '  in 
strictness  means  more  than  an  intent  to  harm.  It  connotes 
an  attempt  to  do  wrongful  harm.  '  Maliciously, '  in 
[*94]  *like  manner,  means  and  implies  an  intention  to  do  an 
act  which  is  wrongful  to  the  detriment  of  another.  The 
term  '  wrongful '  imports  in  its  term  the  infringement  of  some 
right " 

The  words  which  I  have  quoted  are  in  substantial  agreement 
with  the  language  used  by  Bayley,  J. ,  in  Bromage  v.  JProsser,  4 
B.  &  C.  255  (28  R  R  241),  to  the  effect  that  "  malice  in  common 
acceptation  means  ill-will  against  a  person,  but  in  its  legal  sense 
it  means  a  wrongful  act  done  intentionally  without  just  cause  or 
excuse. "  According  to  the  learned  Judge,  in  order  to  constitute 
legal  malice,  the  act  done  must  be  wrongful,  which  plainly  means 
an  illegal  act  subjecting  the  doer  in  responsibility  for  its  conse- 
quences, and  the  intentional  doing  of  that  wrongful  act  will  make 
it  a  malicious  wrong  in  the  sense  of  law.  Whilst  it  is  true  that 
no  act  in  itself  lawful  requires  an  excuse,  it  is  equally  true  that 
some  acts  in  themselves  illegal  admit  of  a  legal  excuse,  and  it  is 
to  these  that  Bayley,  J. ,  obviously  refers. 

The  root  of  the  principle  is  that,  in  any  legal  question,  malice 
depends,  not  upon  evil  motive  which  influenced  the  mind  of  the 
actor,  but  upon  the  illegal  character  of  the  act  which  he  con- 
templated and  committed.  In  my  opinion  it  is  alike  consistent 
with  reason  and  common  sense  that  when  the  act  done  is,  apart 
from  the  feelings  which  prompted  it,  legal,  the  civil  law  ought  to 
take  no  congnisance  of  its  motive. 


B.  C.  VOL.  XVII.]      SECT.  V.  —  RELATION   AS   TO   THIRD  PARTIES.        313 
Ho.  13.  —  AU«n  T.  Flood,  1898,  A.  C.  M,  95. 

It  does  not  appear  to  me  to  admit  of  doubt  that  the  jury,  in 
jBnding  the  action  of  the  company  to  have  been  maliciously  induced 
by  the  appellant,  simply  meant  to  aflBrm  that  the  appellant  was 
influenced  by  a  bad  motive,  namely,  an  intention  to  injure  the 
respondents  in  their  trade  or  calling  of  shipwrights.  At  the  trial, 
the  case  for  the  plaintiff  was  conducted,  and  wa^  submitted  to  the 
jury  by  the  learned  Judge  who  presided,  upon  the  lines  laid  down 
by  the  Master  of  the  Eolls  and  Lopes,  L.  J. ,  in  Temperton  v. 
Bussell  [1893],  1  Q.  B.  715.  When  the  present  case  was  before 
the  Appeal  Court,  the  same  doctrine  was  repeated  by  the  Master 
OF  THE  EoLLS  and  Lopes,  L.  J. ,  and  was  expounded  at  great  length 
by  Lord  Esher.  Eigby,  L.  J.,  deferred  to,  but  did  not  express 
his  concurrence  in,  the  authority  of  Temperton  v.  Bussell, 
which  he  accepted  as  binding  upon  *  him.  The  doctrine  is  [*  95] 
thus  stated  by  the  Master  of  the  Eolls  ([1895],  2  Q.  B. 
37) :  "  Now  it  is  clear  that  merely  to  persuade  a  person  who  has 
contracted  to  break  his  contract  gives  no  cause  of  action  at  all. 
But,  if  it  is  done  maliciously,  for  the  purpose  of  injuring  the 
person  to  whom  the  advice  is  given,  or  for  the  purpose  of  injuring 
some  one  else,  the  person  against  whom  the  malice  is  directed  and 
carried  out  has  a  cause  of  action,  not  on  the  ground  of  the  persua- 
sion to  brea*k  the  contract,  but  on  the  ground  of  the  malice  directed 
against  him.  To  my  mind,  the  result  is  the  same  whether  the 
persuasion  is  to  break  a  contract  or  not  to  make  a  contract  One 
person  has  a  perfect  right  to  advise  another  not  to  make  a  particu- 
lar contract,  and  that  other  is  at  perfect  liberty  to  follow  that 
advice.  But,  if  the  person  uses  that  persuasion  with  intent  to 
injure  the  other,  or  to  injure  the  other  with  whom  he  is  going  to 
make  the  contract,  then  the  act  is  malicious,  and  the  malice 
makes  that  unlawful  which  would  otherwise  be  lawful. "  In  that 
state  of  the  law,  as  expounded  in  the  Appeal  Court,  it  is  not  sur- 
prising to  find  that  Kennedy,  J. ,  whilst  he  did  not  suggest  to  the 
jury  that  the  action  of  the  appellant,  apart  from  its  motive,  con- 
stituted a  legal  wrong,  directed  them  to  consider  whether  the 
appellant  acted  "maliciously,"  and  explained  that  by  that  word 
he  meant  "  with  the  intention  and  for  the  purpose  of  doing  an 
injury  to  the  plaintiffs  in  their  business." 

I  do  not  dispute  that  the  law  laid  down  in  this  case  by  the 
presiding  Judge,  and  upheld  by  the  Court  of  Appeal,  would 
justify  the  verdict  of  the  jury.     It  simply  comes  to  this :  that  to 


U-J:  MASTER  AKD   SERVANT. 


Ho.  18.  —  Allen  ▼.  Flood,  18M,  A.  0.  9S,  96. 


induce  another  person  to  commit  an  act  which  is  within  his  legal 
right  does  not  in  itself  afford  a  cause  of  action;  but  that  the 
person  who  procures  his  action  is  guilty  of  a  legal  wrong,  if  he 
was  actuated  by  an  intent  to  injure,  and  is  liable  in  reparation  to 
those  against  whom  his  evil  intent  was  directed.  The  words 
which  I  have  already  quoted  clearly  disclose  the  doctrine  which 
runs  through  Lord  Esher's  judgment  Whether  mere  **  persua- 
sion '  or  mere  "  advice  '  entails  liability  on  the  person  using  them 
appears  to  me  to  be  a  speculation  which  it  would  be  unprofit- 
able to  discuss,  and  I  shall  therefore  assume  that  the 
[*  96]  *  words  refer  to  the  means  used  by  a  person  who,  in  the 
sense  of  law,  "  procures  "  the  act  of  another.  A  breach  of 
contract  is  in  itself  a  legal  wrong ;  and  in  Lumley  v.  Gye,  2  E.  & 
B.  216,  232,  it  was  said  by  Erle,  J.  (afterwards  Erle,  Ch.  J.): 
"  It  is  clear  that  the  procurement  of  the  violation  of  a  right  is  a 
cause  of  action  in  all  cases  where  the  violation  is  an  actionable 
wrong."  In  the  same  case  it  was  held  by  the  majority  of  the 
learned  Judges  that  the  defendant  was  liable  in  damages  upon  the 
express  ground  that,  in  knowingly  procuring  an  illegal  act,  he 
had  committed  a  wrong  which  the  law  regards  as  malicious.  They 
regarded  malice  as  signifying  in  law,  not  that  the  defendant  had 
been  actuated  by  a  bad  motive,  but  that  he  had  procured  the  com- 
mission of  an  act  which  he  knew  to  be  illegal. 

There  are,  in  my  opinion,  two  grounds  only  upon  which  a 
person  who  procures  the  act  of  another  can  be  made  legally  respon- 
sible for  its  consequences.  In  the  first  place,  he  will  incur 
liability  if  he  knowingly  and  for  his  own  ends  induces  that  other 
person  to  commit  an  actionable  wrong.  In  the  second  place,  when 
the  act  induced  is  within  the  right  of  the  immediate  actor,  and  is 
therefore  not  wrongful  in  so  far  as  he  is  concerned,  it  may  yet  be 
to  the  detriment  of  a  third  party ;  and  in  that  case,  according  to 
the  law  laid  down  by  the  majority  in  Lumley  v.  Crye,  2  E.  &  B. 
216,  the  inducer  may  be  held  liable  if  he  can  be  shown  to  have 
procured  his  object  by  the  use  of  illegal  means  directed  against 
that  third  party. 

The  question  submitted  by  the  House  for  the  opinion  of  the 
learned  Judges  who  have  favoured  us  with  their  assistance  was : 
**  Assuming  the  evidence  given  by  the  plaintiffs*  witnesses  to  be 
correct,  was  there  any  evidence  of  a  cause  of  action  fit  to  be  left 
to  the  jury  ? "     The  terms  in  which  the  query  is  framed  aflford  an 


B.  0.  VOL.  XVIL]      sect.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        315 
Ho.  12.  —  AUen  y.  Flood,  1898,  A.  0.  96,  97. 

opportunity,  of  which  some  of  the  learned  Judges  have  not  been 
slow  to  avail  themselves,  of  referring  to  the  evidence  of  the 
respondents'  witnesses  in  quest  of  some  fact  which  might  impart 
a  legal  and  not  a  conventional  meaning  to  malice  as  found  by  the 
jury.  But,  according  to  my  apprehension,  it  was  not  intended, 
nor  would  it  be  legitimate,  in  pursuing  that  investigation 
to  disregard  the  pleadings  of  the  *  respondents,  or  the  [*97] 
course  which  was  followed  by  their  counsel,  at  the  trial  of 
the  cause.  To  deal  with  the  case  on  any  other  terms  would  be 
to  start  issues  which, the  respondents  themselves  never  raised  until 
they  came  to  the  bar  of  this  House,  and  to  apply  to  these  issues 
evidence  which  was  directed,  not  to  these,  but  to  other  points.  I 
therefore  fibad  it  necessary  to  express  an  opinion  upon  various 
questions  which  were  canvassed  in  the  course  of  the  argument 
addressed  to  us. 

First  of  all,  although  the  statement  of  claim  set  forth  that  the 
appellant  induced  the  Glengall  Iron  Company  to  "  break  and  refuse 
to  perform  their  contract "  with  the  respondents,  the  allegation  is 
not  borne  out  by  their  own  evidence.  One  of  them  (Taylor)  only 
goes  the  length  of  saying  that  "  When  a  man  is  once  put  on  he 
is  entitled  to  come  back,  day  by  day,  imtil  the  job  is  finished 
or  he  is  discharged;"  and  the  other  (Flood)  stated  substantially 
the  same  thing,  with  the  addition  that  there  was  no  rule  as  to  the 
time  of  notice.  Then,  at  the  trial,  the  cross-examination  for  the 
appellant  in  regard  to  the  matter  of  contract  was  stopped  by 
the  presiding  Judge  with  the  observation,  "  So  far  as  the  breach 
of  contract  was  opened,  in  fact  there  was  no  breach  of  contract, 
because  the  employment  was  day  by  day,  and  terminated  at  the 
end  of  each  day. "  And  in  charging  the  jury  the  learned  Judge, 
referring  to  the  averment  of  breach  in  the  statement  of  claim, 
again  observed,  without  objection  or  exception  taken  by  the 
respondents'  counsel,  "  that  has  altogether  fallen  through,  because 
it  is  quite  clear  that  there  was  no  contract  existing  which  the 
defendants  or  any  of  them  could  have  induced  the  Glengall  Iron 
Company  to  break  with  the  plaintiff.  " 

Assuming  that  the  Glengall  Iron  Company,  in  dispensing  with 
the  further  services  of  the  respondents,  were  guilty  of  no  wrong,  I 
am  willing  to  take  it  that  any  person  who  procured  their  act 
might  incur  responsibility  to  those  who  were  injuriously  affected 
by  it,  if  he  employed  unlawful  means  of  inducement   directed 


316  MASTER  AND   SERVANT. 


Ho.  18.  —  Allon  ▼.  Flood,  18M,  A.  0.  97-09. 


against  them.  According  to  the  decision  of  the  majority  in 
LwmUy  v.  Gye,  already  referred  to,  a  person  who  by  illegal  means, 
that  is,  means  which  in  themselves  are  in  the  nature  of 
[*98]  *  civil  wrongs,  procures  the  lawful  act  of  another,  which 
act  is  calculated  to  injure,  and  does  injure,  a  third  party, 
commits  a  wrong  for  which  he  may  be  made  answerable.  So 
long  as  the  word  "  means  "  is  understood  in  its  natural  and  proper 
sense  that  rule  appears  to  me  to  be  intelligible ;  but  I  am  alto- 
gether unable  to  appreciate  the  loose  logic  which  confounds  in- 
ternal feelings  with  outward  acts,  and  treats  the  motive  of  the 
actor  as  one  of  the  means  employed  by  him. 

It  has  been  maintained,  and  some  of  the  learned  Judges  who 
lent  their  assistance  to  the  House  have  favoured  the  argument, 
that  the  appellant  used  coercion  ^  a  means  of  compelling  the 
Glengall  Iron  Company  to  terminate  their  connection  with  the  re- 
spondents; but  that  conclusion  does  not  appear  to  me  to  be  the 
fair  result  of  the  evidence.  If  coercion,  in  the  only  legal  sense 
of  the  term,  was  employed,  it  was  a  wrong  done  as  much  to  the 
Glengall  Iron  Company,  who  are  the  parties  said  to  have  been 
coerced,  as  to  the  respondents.  Its  result  might  be  prejudicial  to 
the  respondents,  but  its  efficacy  wholly  depended  upon  its  being 
directed  against  and  operating  upon  the  company.  It  must  be 
kept  in  view  that  the  question  of  what  amounts  to  wrongful 
coercion  in  a  legal  sense  involves  the  same  considerations  which  I 
have  discussed  in  relation  to  the  elements  of  a  civil  wrong  as  com- 
mitted by  the  immediate  actor.  According  to  my  opinion,  coer- 
cion, whatever  be  its  nature,  must,  in  order  to  infer  the  legal 
liability  of  the  person  who  employs  it,  be  intrinsically  and  irre- 
spectively of  its  motive  a  wrongful  act.  According  to  the  doctrine 
ventilated  in  Temperton  v.  Russell  [1893],  1  Q.  B.  715,  and  the 
present  case  it  need  not  amount  to  a  wrong,  but  will  become 
wrongful  if  it  was  prompted  by  a  bad  motive. 

It  is,  in  my  opinion,  the  absolute  right  of  every  workman  to 
exercise  his  own  option  with  regard  to  the  persons  in  whose  society 
he  will  agree  or  continue  to  work.  It  may  be  deplorable  that 
feelings  of  rivalry  between  different  associations  of  working-men 
should  ever  run  so  high  as  to  make  members  of  one  union  seriously 
object  to  continue  their  labour  in  company  with  members  of 
another  trade  union ;  but  so  long  as  they  commit  no  legal 
[*  99]  wrong,  and  use  no  means  which  are  illegal,  they  are  at  *  per- 


R.  C.  VOL.  XVII.]      SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        317 
Ho.  18.  — AUen  y.  Flood,  1898,  A.  C.  99,  100. 

feet  liberty  to  act  upon  their  own  views.  That  the  boiler- 
makers  who  were  employed  at  the  Regent  Dock,  Mill  wall,  did 
seriously  resent  the  presence  among  them  of  the  respondents  very 
plainly  appears  from  the  evidence  of  the  respondents  themselves ; 
and  that  they  would  certainly  have  left  the  dock  had  the  respond- 
ents continued  to  be  employed  appears  to  me  to  be  an  undoubted 
fact  in  the  case.  They  were  not  under  any  continuing  engage- 
ment to  their  employers,  and,  if  they  had  left  their  work  and  gone 
out  on  strike,  they  would  have  been  acting  within  their  right, 
whatever  might  be  thought  of  the  propriety  of  the  proceeding. 
Not  only  so ;  they  were,  in  my  opinion,  entitled  to  inform  the 
Glengall  Iron  Company  of  the  step  which  they  contemplated,  as 
well  as  of  the  reasons  by  which  they  were  influenced,  and  that 
either  by  their  own  mouth,  or,  as  they  preferred,  by  the  appellant 
as  their  representative.  If  the  workmen  had  made  the  communi- 
cation themselves,  and  had  been  influenced  by  bad  motives  towards 
the  respondents,  then,  according  to  the  law  which  has  been  gen- 
erally accepted  by  the  Courts  below,  they  would  each  and  all  of 
them  have  incurred  responsibility  to  the  respondents.  But  it  was 
clearly  for  the  benefit  of  the  employers  that  they  should  know 
what  would  be  the  result  of  their  retaining  in  their  service  men  to 
whom  the  majority  of  their  workmen  objected ;  and  the  giving  of 
such  information  did  not,  in  my  opinion,  amount  to  coercion  of 
the  employers  who  were  in  no  proper  sense  coerced,  but  merely 
followed  the  course  which  they  thought  would  be  most  conducive 
to  their  own  interests. 

I  think  it  is  right  to  observe  that  if  the  evidence  had,  in  my 
opinion,  contained  statements  suflBcient  to  support  a  charge  of 
coercion,  I  should  have  declined  in  the  circumstances  of  the 
present  case  to  give  effect  to  it.  It  is  quite  true  that  in  the  5th 
count  of  the  statement  of  claim  intimidation  and  coercion  are 
alleged;  but  it  is  equally  true  that  from  the  time  when  that 
pleading  was  filed  until  the  second  argument  upon  this  appeal  the 
word  **  coercion  "  or  its  equivalents  have  never  been  heard  except 
in  one  instance.  It  does  not  even  occur  in  the  respondents'  case; 
and  the  exception  to  which  I  have  referred  is  to  be  found 
in  the  charge  of  the  learned  Judge  who,  without  *  any  [*  100] 
challenge  by  the  respondents'  counsel,  made  the  observa- 
tion to  the  jury :  "  There  is  no  evidence  here,  of  course,  of  any- 
thing amounting  to  intimidation  or  coercion  in  any  legal  sense  of 


318  MASTER  AND  SERVANT. 


Ho.  18.  —  AUen  ▼.  Flood,  18M,  A.  C.  100,  101. 


the  term. "  The  evidence  now  relied  on  as  showing  intimidation 
and  coercion  was  adduced  to  prove,  and  was  represented  to  the 
jury  as  proving,  the  maliis  animus  of  the  appellant,  and  nothing 
else.  I  entertain  little  doubt  as  to  the  incompetency,  but  none  as 
to  the  inexpediency  of  this  House  entertaining  and  deciding  an 
issue  of  fact,  which,  if  not  formally  abandoned,  was  not  brought 
forward  at  the  trial  or  submitted  to  the  jury,  and  that  upon  evi- 
dence which  was  not  directed  to  it,  for  the  purpose  of  patching 
up  a  verdict  which  is  impeached  in  point  of  law. 

^  The  doctrine  laid  down  by  the  Court  of  Appeal  in  this  case, 
and  in  Ternperton  v.  Bussell,  with  regard  to  the  efl&cacy  of  evil 
motives  in  making  —  to  use  the  words  of  Lord  Esher  — "  that 
unlawful  which  would  otherwise  be  lawful,"  is  stated  in  wide 
and  comprehensive  terms;  but  the  majority  of  the  consulted 
Judges  who  approve  of  the  doctrine  have  only  dealt  with  it  as 
applying  to  cases  of  interference  with  a  man's  trade  or  employ- 
ment. Even  in  that  more  limited  application  it  would  lead  in 
some  cases  to  singular  results.  One  who  committed  an  act  not 
in  itself  illegal,  but  attended  with  consequences  detrimental 
to  several  other  persons,  would  incur  liability  to  those  of  them 
whom  it  was  proved  that  he  intended  to  injure,  and  the  rest  of 
them  would  have  no  remedy.  A  master  who  dismissed  a  ser- 
vant engaged  from  day  to  day,  or  whose  contract  of  service  had 
expired,  and  declined  to  give  him  further  employment  because  he 
disliked  the  man,  and  desired  to  punish  him,  would  be  liable  in 
an  action  for  tort  And  ex  pari  ratione,  a  servant  would  be  liable 
in  damages  to  a  master  whom  he  disliked  if  he  left  his  situation 
at  the  expiry  of  his  engagement  and  declined  to  be  re-engaged,  in 
the  knowledge  and  with  the  intent  that  the  master  would  be  put 
to  considerable  inconvenience,  expense,  and  loss  before  he  could 
provide  a  substitute.  If  that  be  the  state  of  the  law,  it  is  some- 
what remarkable  that  there  is  no  ctise  to  be  found  in  the  books  of 

any  such  action  having  been  sustained.  The  authority 
[*  101]   which  is  mainly  relied  *  on  as  supporting  the  doctrine  of 

the  recent  decisions  is  Keeblev.  Hickeringill,  11  East,  57471. 
(11  R  R.  273  71.),  which  was  decided  by  the  Court  of  Queen's 
Bench  about  two  centuries  ago.  I  am  very  far  from  suggesting 
tliat  the  antiquity  of  a  decision  furnishes  a  good  objection  to  its 
weight;  but  it  is  a  circumstance  which  certainly  invites  and 
requires  careful  consideration,   unless  the  decision  is  clearly  in 


K.  0.  VOL.  XVn.]      SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        319 
Ho.  18.  —  Allen  ▼.  Flood,  1898,  A.  C.  101, 102. 

point,    and   its  principle  has   since  been  recognised  and  acted 
upon. 

In  Keeble  v.  ffickeringiU,  the  plaintiff  sued  for  the  disturbance 
of  a  decoy  upon  his  property,  which  he  used  for  the  purpose  of 
capturing  wild  fowl  and  sending  them  to  market.  The  defendant, 
who  was  an  adjoining  proprietor,  had  fired  guns  upon  his  own 
land,  not  with  the  view  of  killing  game  or  wild  fowl,  but  with 
the  sole  object  of  frightening  the  birds,  and  either  driving  them 
out  of  his  neighbour's  decoy  pond  or  preventing  them  from  enter- 
ing it.  The  act  complained  of  was,  in  substance,  the  making  of  a 
noise  so  close  to  the  lands  of  the  plaintiff  as  to  be  a  nuisance  to 
him.  Upon  that  aspect  of  the  case  I  do  not  find  it  necessary  to 
express  any  opinion  as  to  the  conduct  of  the  defendant ;  but  this 
much  is  clear,  that  no  proprietor  has  an  absolute  right  to  create 
noises  upon  his  own  land,  because  any  right  which  the  law  gives 
him  is  qualified  by  the  condition  that  it  must  not  be  exercised  to 
the  nuisance  of  his  neighbours  or  of  the  public.  If  he  violates 
that  condition  he  commits  a  legal  wrong,  and  if  he  does  so  inten- 
tionally, he  is  guilty  of  a  malicious  wrong,  in  its  strict  legal 
sense.  Holt,  Ch.  J.,  who  delivered  the  opinion  of  his  Court, 
treated  the  case  as  one  of  interference  with  the  plaintiff's  trade, 
consisting  in  the  capture  and  sale  of  wild  fowl.  He  distinguishes 
it  from  the  case  of  invading  a  franchise,  which,  I  apprehend, 
would  in  itself  amount  to  a  legal  wrong,  and  thus  states  the  law 
applicable  to  it :  **  Where  a  violent  or  malicious  act  is  done  to  a 
man's  occupation,  profession,  or  way  of  getting  a  livelihood,  there 
an  action  lies  in  all  cases. "  I  see  no  reason  to  doubt  that  by  a 
"  violent  act "  the  learned  Judge  had  in  view  an  act  of  violence 
done  in  such  circumstances  as  to  make  it  amount  to  a  legal  wrong ; 
and  I  see  as  little  reason  why,  in  speaking  of  a  "  malicious 
act,"  he  should  not  be  understood  as  using  the  word 
*  **  malicious  "  in  its  proper  legal  sense,  and  as  referring  [*  102] 
to  other  wrongs,  not  accompanied  by  violence,  but  done 
intentionally,  and,  therefore,  in  the  eye  of  the  law,  maliciously. 
The  object  of  an  act,  that  is,  the  results  which  will  necessarily  or 
naturally  follo.w  from  the  circumstances  in  which  it  is  committed, 
may  give  it  a  wrongful  character,  but  it  ought  not  to  be  con- 
founded with  the  motive  of  the  actor.  To  discharge  a  loaded  gun 
is,  in  many  circumstances,  a  perfectly  harmless  proceeding;  to 
fire  it  on  the  highway,  in  front  of  a  restive  horse,  might  be  a  very 
different  matter. 


320  MASTER  AND   SERVANT. 

Ho.  18.  —  Allen  ▼.  Flood,  1898,  A.  C.  102, 108. 

The  learned  Chief  Justice  proceeds  to  give  various  illustra- 
tions of'  the  general  rule  which  he  had  formulated.  He  first 
notices  a  case  in  which  it  had  been  held  that  a  schoolmaster  had 
no  cause  of  action  against  a  defendant  who  had  attracted  his  pupils 
and  injured  his  school  by  setting  up  a  rival  establishment,  a  pro- 
ceeding which  was  obviously  in  the  ordinary  course  of  competition, 
and  then  adds :  "  But  suppose  Mr.  Hickeringill  should  lie  in  the 
way  with  his  guns,  and  fright  the  boys  from  going  to  school,  and 
their  parents  would  not  let  them  go  thither;  sure  that  school- 
master might  have  an  action  for  the  loss  of  his  scholars.  **  From 
that  observation  I  see  no  reason  to  differ,  because,  in  my  opinion, 
frightening  a  child  with  a  gun  so  that  it  cannot  get  to  scliool  is  in 
itself  a  violent  and  unlawful  act,  directed  both  against  the  child 
and  its  schoolmaster.  The  learned  Judge  then  refers  to  three 
instances  in  which  the  defendant  would  be  liable  in  an  action 
upon  the  case :  (1)  Where  he  obstructs  a  person  in  charge  of  a 
horse,  who  is  taking  it  to  a  market  for  sale,  and  prevents  his 
reaching  the  market,  thereby  depriving  the  market  owner  of  his 
dues ;  (2)  where,  to  the  detriment  of  a  proprietor,  he  by  threats 
frightens  away  his  tenants  at  will ;  and  (3)  when  he  beats  a  ser- 
vant, and  so  hinders  him  from  taking  his  master's  tolls.  It  must 
be  observed  that,  apart  from  any  question  of  motive,  all  these 
cases  involve  the  use  of  means  in  themselves  illegal,  —  obstruction, 
coercion  by  means  of  threats,  and  personal  assault. 

But  assuming,  what  to  my  mind  is  by  no  means  clear,  that 
Keeble  v.  Hickeringill  was  meant  to  decide  that  an  evil 
[*  103]  *  motive  will  render  unlawful  an  act  which  otherwise  would 
be  lawful,  it  is  necessary  to  consider  how  far  that  anom- 
alous principle  has  been  recognised  in  subsequent  decisions.  Lay- 
ing aside  the  recent  decisions  which  are  under  review  in  this 
appeal,  only  one  case  has  been  cited  to  us  in  which  the  Court 
professed  that  they  were  guided  by  the  reasoning  of  Holt,  Ch.  J. 
That  instance  is  to  be  found  in  Carrington  v.  Taylor,  11  East, 
571  (11  R  R  270),  a  decision  which  I  venture  to  think  that  no 
English  Court  would  at  this  day  care  to  repeat  The  facts  of  the 
case  resembled  those  which  occurred  in  Keeble  v.  Hickeringill ,  in 
this  single  respect,  that  the  plaintiff  was  the  owner  of  a  decoy  for 
wild  fowl.  The  defendant  was  the  owner  of  a  boat  in  which  he 
rowed  along  the  coast  and  earned  a  livelihood  by  shooting  wild  fowl 
for  the  market,  which  he  was  lawfully  entitled  to  do.     But  some 


B.  C.  VOL*  XVn.]      SECT.  V.  —  RELA.TION  AS   TO  THIRD  PARTIES.        321 
Ho.  12.  —  Allen  y.  Flood,  1898,  A.  C.  108, 101 

of  the  shots  fired  by  him  in  the  pursuit  of  that  occupation  had  the 
effect  of  scaring  birds  which  otherwise  would  or  might  have  entered 
the  plaintiff's  decoy ;  and,  in  respect  of  that  disturbance,  he  was 
held  liable  in  damages  to  the  plaintiff.  Whatever  construction 
might  be  put  upon  the  judgment  of  Holt,  Ch.  J. ,  it  does  not  appear 
to  me  to  contain  a  single  expression  which  would  justify  that  re- 
sult. I  am  not  surprised  to  find  that  an  eminent  Judge,  with 
whose  opinion  as  a  whole  I  am  unable  to  concur,  has  had  the  cour- 
age to  express  his  dissent  from  the  judgment  in  Carrington  v. 
Taylor^  as  he  failed  "  to  see  what  wrong  the  defendant  in  that  case 
had  done.  "  To  my  mind  the  case  is  of  considerable  importance, 
because  it  shows  that  in  the  year  1809  the  Court  of  Queen's  Bench 
did  not  regard  Keeble  v,  Hickeringill  as  establishing  the  doctrine 
that  a  lawful  act,  done  with  intent  to  injure,  will  afford  a  cause 
of  action.  In  the  case  before  them  there  was  no  allegation  and 
no  evidence  of  any  intent  to  injure  the  plaintiff's  decoy.  The 
sole  motive  of  the  defendant  in  firing  his  gun  was  to  earn  his 
livelihood  by  killing  wild  fowl  for  the  market.  I  cannot  avoid 
the  conclusion  that  the  learned  Judges  accepted  Keeble  v. 
Hickeringill  as  an  authority  to  the  effect  that,  apart  from  any 
question  of  motive,  the  disturbance  of  a  lawful  decoy  is  an  illegal 
invasion  of  the  private  right  of  its  proprietor. 

*  A  variety  of  well-known  cases,  including  even  [*  104] 
Lumley  v.  Gye,  2  E.  &  B.  216,  were  relied  on  by  the 
respondents  as  showing  that  the  so-called  principle  of  Keeble  v. 
Hickeringill  has  been  from  time  to  time  applied  by  the  English 
Courts  since  the  date  of  that  judgment.  Except  in  the  case  of 
Carrington  v.  Taylor,  which  I  have  already  noticed,  I  have  been 
unable  to  discover  in  these  authorities,  which  I  do  not  consider  it 
necessary  to  examine  in  detail,  any  trace  of  the  doctrine  for  which 
the  respondents  contend  until  recent  years,  when  it  is  first  firmly 
foreshadowed  in  a  dictum  which  occurs  in  Bowen  v.  Hall,  6  Q.  B. 
D.  333,  and  is  subsequently  developed  in  Temperton  v.  Eussell 
[1893],  1  Q.  B.  715,  and  in  the  present  case.  The  authorities 
antecedent  to  Bowen  v.  Hall,  as  well  as  that  decision  itself,  are 
all  cases  belonging  to  one  or  other  of  these  three  classes:  (1) 
Cases  of  privilege,  where  the  perpetrator  of  an  act  which  per  se 
constituted  a  legal  wrong  was  protected  from  its  usual  conse- 
quences in  the  event  of  its  being  proved  that  he  was  actuated  by 
an  honest  desire  to  fulfil  a  public  or  private  duty ;  (2)  cases  in 

VOL.  XVII.  —  21 


322  MASTER  AND  SERVANT. 

Ho.  18.  — Allen  ▼.  Flood,  1808,  A.  0. 104, 106. 

which  the  act  complained  of  was  in  itself  a  plain  violation  of 
private  right;  and  (3)  cases  in  which  an  act  detrimental  to 
others,  but  affording  no  remedy  against  the  immediate  actor,  had 
been  procured  by  legal  means. 

The  early  case  of  Garret  v.  Taylor,  Cro.  Jac.  567,  furnishes 
an  apt  illustration  of  the  third  class.  According  to  the  report, 
which  is  very  brief,  the  plaintiff,  a  quarryman,  complained  that 
the  defendant  had,  by  threats  to  "  mayhem  "  and  annoy  them  with 
litigation,  induced  or  coerced  some  of  his  customers  to  discon- 
tinue buying  stones  from  his  quarry.  Decree  passed  in  absence, 
and  the  case  was  reheard  on  an  appeal  brought  by  the  defendant 
in  arrest  of  judgment  upon  the  ground  that  the  declaration  did 
not  disclose  any  cause  of  action.  The  declaration  (2  Eoll.  Eep. 
162)  discloses  facts  which,  if  true,  as  they  were  necessarily 
assumed  to  be,  did  amount  to  illegal  means  used  in  order  to 
injfliuence   the  action  of  the  plaintiff's  customers.     One  learned 

Judge  has  assumed  that  the  judgment  went  on  the  prin- 
[*  105]  ciple  *  that  every  man  "  has  a  right  to  carry  on  his  trade 

without  disturbance,"  a  proposition  which  was  not  in- 
volved in  the  case,  but  which  I  should  not  demur  to  if  he  meant 
**  illegal  '  disturbance.  The  decision  really  went  upon  the  terms 
of  the  declaration,  which  appears  to  me  to  disclose  a  clear  case  of 
the  employment  of  unlawful  means.  I  am  not  at  present  pre- 
pared to  hold  that  threats  of  vexatious  litigation,  which  might 
cause  anxious  apprehension  in  the  minds  of  many,  will  in  no  cir- 
cumstances amoimt  to  unlawful  influence;  but  I  entertain  no 
doubt  that  these,  when  coupled  with  serious  threats  of  personal 
violence  going  the  length  of  mutilation  or  demembration,  do, 
when  the  party  threatened  is  overcome  by  and  yields  to  them, 
constitute  legal  coercion. 

Tarleton  v.  M'Gawley,  1  Peake  N.  P.  C.  270  (3  R  R  689), 
is  a  case  of  the  same  complexion.  Two  British  ships,  the  Othello 
and  the  Bannister,  were  lying  near  to  each  other  off  the  Calabar 
coast,  both  engaged  in  the  same  kind  of  adventure,  that  of  barter- 
ing their  cargoes  for  palm-oil  and  other  West  African  produce. 
A  canoe  manned  by  natives  desiring  to  trade  was  approaching  the 
Bannister  for  that  purpose,  when  the  master  of  the  Othello  directed 
against  it  and  fired  a  cannon  loaded  with  gunpowder  and  shot  and 
killed  one  of  its  crew,  an  outrage  which  occasioned  such  a  panic 
amongst  the  native  tribes  that  the  season's  trade  of  the  Bannister 


B.  C.  VOL,  XVIL]      sect.  V.  —  BELATIOK  AS  TO  THIRD  PAKTIES.        323 
Ho.  18.  •— Allan  ▼.  Flood,  1808,  A.  0.  106,  106. 

was  lost  The  master  of  the  Othdlo  was  held  to  be  responsible 
for  that  result,  which  was  the  direct  and  natural  consequence  of 
his  wrongful  and  criminal  act.  The  case  was  just  the  same  as  if 
some  person  had  persisted  in  firing  bullets  at  all  and  sundry  who 
were  about  to  enter  a  particular  shop  with  the  effect  of  driving 
away  its  customers  and  ruining  the  shopkeeper's  business.  Such 
an  act  could  not  be  reasonably  described  as  lawful  but  for  the 
motive  by  which  it  was  dictated. 

I  have  already  indicated  that,  in  my  opinion,  no  light  is 
thrown  upon  the  decision  of  the  present  question  by  Fitt  v. 
Donovan,  1  M.  &  S.  639  (14  R  B.  535),  and  other  cases  of  that 
class.  The  defendant  had  in  that  case  represented,  contrary  to 
the  fact,  that  the  plaintiff  was  insane  at  the  time  when  he 
executed  a  particular  deed.  *  The  communication  was  [•  106] 
made  to  a  person  to  whom  the  defendant  was  under  a 
legal  duty  to  make  the  disclosure  if  it  had  been  true ;  and  the 
defendant  was  in  law  absolved  from  the  ordinary  consequences  of 
his  having  circulated  a  libel  which  was  false  and  injurious,  if  he 
honestly  believed  it  to  be  true.  The  law  applicable  in  cases  of 
that  description  is,  I  apprehend,  beyond  all  doubt ;  but  the  rule 
by  which  the  law  in  certain  exceptional  cases  excuses  the  perpe- 
tration of  a  wrong,  by  reason  of  the  absence  of  evil  motive,  is 
insufficient  to  establish  or  to  support  the  converse  and  very  differ- 
ent proposition,  that  the  presence  of  an  evil  motive  will  convert 
a  legal  act  into  a  legal  wrong.  Lumley  v.  Gye,  2  E.  &  B.  216, 
is  a  weighty  authority  in  this  branch  of  the  law,  but  it  does  not 
lend  any  aid  to  the  respondents'  argument  It  was  an  action  of 
damages  against  a  defendant  who  had  induced  a  professional 
singer  to  break  her  engagement  with  the  plaintiff  to  his  detriment, 
and  it  was  resisted  mainly  upon  the  ground  that  the  engagement 
broken  did  not  constitute  the  relationship  of  master  and  servant 
between  the  contracting  parties.  That  plea  was  overruled,  and 
the  defendant  found  liable.  The  principle  of  the  decision  (from 
which  Coleridge,  J.,  alone  dissented)  was  clearly  explained  by 
Mr.  Justice  (afterwards  Chief  Justice)  Erle,  whose  opinion  is  in 
complete  accordance  with  the  views  expressed  by  the  other  learned 
Judges  who  C/onstituted  the  majority  of  the  Court.  He  said: 
"  The  authorities  are  numerous  and  uniform  that  an  action  will 
lie  against  a  person  who  procures  that  a  servant  should  unlaw- 
fully leave  his  service.     The  principle  involved  in  these  cases 


324  MASTER  AND  SERVANT. 

Ho.  12.  —Allen  ▼.  Flood,  1808,  A.  C.  106,  107. 

comprises  the  present,  for  there  the  right  of  action  in  the  master 
arises  from  the  wrongful  act  of  the  defendant  in  procuring  that 
the  person  hired  should  break  his  contract  by  putting  an  end 
to  the  relation  of  employer  and  employed,  and  the  present  case  is 
the  same.  *  The  learned  Judge  went  on  to  say,  in  language  which 
I  have  already  referred  to :  "It  is  clear  that  the  procurement  of 
the  violation  of  a  right  is  a  cause  of  action  in  all  cases  where  the 
violation  is  an  actionable  wrong. "  These  statements  embody  an 
intelligible  and  a  salutary  principle,  and   they  contain   a  full 

explanation  of  the  law  upon  which  the  case  was  decided. 
[*  107]  *  He  who  wilfully  induces  another  to  do  an  unlawful  act 

which,  but  for  his  persuasion,  would  or  might  never  have 
been  committed,  is  rightly  held  to  be  responsible  for  the  wrong 
which  he  procured.  None  of  the  learned  Judges  made  any  refer- 
ence to  the  case  of  KeeUe  v.  HickeringUl,  11  East,  574  n.  (11  R  R 
273  n.),  and  not  a  single  expression  is  to  be  found  in  their 
opinions  tending  to  suggest  that  an  injurious  motive  can  impart  a 
wrongful  character  either  to  a  lawful  act  or  to  its  procurement  by 
means  which  are  not  in  themselves  illegal. 

In  Bowen  v.  Hall,  6  Q.  B.  D.  333,  the  wrong  complained  of 
was  the  intentional  inducing  of  a  breach  of  contract  to  the  detri- 
ment of  the  plaintiff,  who  was  obviously  entitled  to  succeed  if 
Lamley  v.  Gye  had  been  well  decided.  According  to  the  opinion 
expressed  by  Erle,  Ch.  J. ,  and  the  other  Judges  of  the  majority 
in  that  case,  the  defendant  in  Bowen  v.  Hall  had  been  guilty  of  a 
wrong  which  was  in  the  sense  of  law  malicious  because  he  had 
knowingly  procured  the  commission  of  an  illegal  act  The  judg- 
ment in  Lumley  v.  Gye  was  followed  by  Earl  Selbornb  and  by 
Lord  Esher  (at  that  time  Brett,  L.  J.),  whilst  CoLERroGE,  Ch.  J., 
adhered  to  the  opposite  view,  which  had  been  taken  by  Cole:  idge, 
J.  Lord  Esher,  in  delivering  the  judgment  of  Earl  Selborne 
and  himself,  substantially  affirms  the  reasoning  of  the  majority  in 
Lumley  v.  Gye ;  but  there  are  one  or  two  sentences  in  his  judg- 
ment relating  to  points  with  which  the  learned  Judges  who 
decided  that  case  did  not  deal,  and  which  were  not  raised  by  the 
facts  either  of  Lumley  v.  Gye  or  of  the  case  before  him.  His 
Lordship  said :  "  Merely  to  persuade  a  man  to  break  his  contract 
may  not  be  wrongful  in  law  or  fact  as  in  the  second  case  put  by 
Coleridge,  J.  But  if  the  persuasion  be  used  for  the  indirect 
purpose  of  injuring  the  plaintiff,  or  of  benefiting  the  defendant  at 


R.  C.  VOL.  XVII.]      SECT.  V.  —  RELATION   AS   TO  THIRD   PARTIES.        325 
Ho.  18.— AUen  y.  Flood,  1898,  A.  C.  107, 108. 

the  expense  of  the  plaintifif,  it  is  a  malicious  act  which  is  in  law 
and  in  fact  a  wrong  act,  and  therefore  a  wrongful  act,  and  there- 
fore an  actionable  act,  if  injury  ensues  from  it  We  think  that 
it  cannot  be  doubted  that  a  malicious  act,  such  as  is  above 
described,  is  a  wrongful  act  in  law  and  in  fact "  These 
words  are  obviously  susceptible  of  two  *very  different  [*  108] 
constructions,  according  as  they  are  understood  to  refer  to 
the  procurement  of  an  act  which  is  in  violation  of  the  law,  and 
therefore  a  legal  wrong,  or  to  the  procurement  of  a  lawful  act 
jFWmA  /acte,  they  would  have  appeared  to  me  to  refer  to  the 
procuring  of  an  illegal  act,  because  the  assumption  upon  which 
the  whole  passage  is  framed  is  that  there  has  been  successful 
persuasion  to  break  a  contract,  which  is  an  undoubted  violation 
of  the  law ;  and  in  that  case  there  would  be  a  malicious  wrong  as 
it  is  defined  in  Lwndey  v.  Gye,  But  the  words  have  now  been 
explained  by  their  author  to  mean,  not  merely  that  the  procuring 
of  an  unlawful  act  with  intent  to  injure  is  a  malicious  wrong, 
giving  a  good  cause  of  action,  but  that  the  presence  of  injurious 
intent  in  the  mind  of  the  procurer  gives  a  good  cause  of  action, 
although  the  act  procured  is  in  itself  lawful.  In  that  aspect  of 
them,  the  words  can  only  be  regarded  as  obiter  dicta,  because  no 
such  question  was  raised  by  the  circumstances  of  the  case. 

I  do  not  think  it  necessary  to  notice  at  length  Temperton  v. 
Bussell  [1893],  1  Q.  B.  715,  in  which  substantially  the  same 
reasons  were  assigned  by  the  Master  of  the  Eolls  and  Lopes, 
L.  J.,  as  in  the  present  case.  It  is  to  my  mind  very  doubtful 
whether  in  that  case  there  was  any  question  before  the  Court  with 
regard  to  the  effect  of  the  animus  of  the  actor  in  making  that 
unlawful  which  would  otherwise  have  been  lawful.  The  only 
findings  of  the  jury  which  the  Court  had  to  consider  were:  (1) 
That  the  defendants  had  maliciously  induced  certain  persons  to 
break  their  contracts  with  the  plaintiffs;  and  (2)  that  the  de- 
fendants had  maliciously  conspired  to  induce,  and  had  thereby 
induced,  certain  persons  not  to  make  contracts  with  the  plaintiffs. 
There  having  been  undisputed  breaches  of  contract  by  the  persons 
found  to  have  been  induced,  the  first  of  these  findings  raised  the 
same  question  which  had  been  disposed  of  in  Lumley  v.  Gye. 
According  to  the  second  finding,  the  persons  induced  merely 
refused  to  make  contracts,  which  was  not  a  legal  wrong  on  their 
part ;  but  the  defendants  who  induced  were  found  to  have  accom- 


326  MASTER  AND  SERVANT. 


Ho.  12.  —Allen  ▼.  Flood,  1898,  A.  G.  108-116. 


plished  their  object,  to  the  injury  of  the  plaintiffs,  by  means  of 
unlawful  conspiracy  —  a  clear  ground  of  liability  according 
[*  109]  to  *  Lumley  v.  Gye,  if,  as  the  Court  held,  there  was  evidence 
to  prove  it 
I  am  quite  alive  to  the  fact  that  the  question  which  we  have  to 
decide  is   one  of  importance,  and  also  that  it  has  never  been 
previously  considered  by  this  House.     Having  come  to  the  con- 
clusion, with  the  majority  of  your  Lordships  who  have  heard  the 
appeal,  that  the  doctrine  advanced  by  the  respondents  is  neither 
sound  in  principle  nor  supported  by  authority,  I  move  that  the 
order  appealed  from  be  reversed,  and  judgment  entered  for  the 
appellant,  and  that  the  appellant  have  his  costs  of  this  appeal, 
and  costs  in  both   Courts  below,    including  the    costs  of    the 

trial. 
[114]  Lord  Herschell.  — My  Lords,  in  this  case  the  respond- 
ents, who  were  the  plaintiffs  in  the  action,  were  members 
of  the  shipwrights'  union.  The  appellant  is  an  official  —  the 
delegate  of  the  London  district  —  of  the  United  Society 
[*  115]  of  Boiler  Makers  *  and  Iron  Ship  Builders.  It  appears 
that  before  the  time  of  the  occurrences  which  gave  rise  to 
this  action  a  controversy  had  existed  between  these  unions  and 
the  members  of  whom  they  were  respectively  composed.  The 
boiler-makers'  union  insisted  that  it  was  not  a  legitimate  part  of 
the  work  of  a  shipwright  to  execute  ironwork  upon  ships,  and 
that  they  ought  to  confine  themselves  to  the  woodwork.  On  the 
other  hand,  the  shipwrights'  union  contended  that  ironwork,  as 
well  as  woodwork,  fell  properly  within  their  craft  In  April, 
1894,  the  respondents  were  engaged  to  do  certain  piecework  upon 
a  ship  called  the  Sam  Weller,  in  the  Regent's  Dock,  Mill  wall, 
for  the  Glengall  Iron  Company.  They  were  employed  only  upon 
woodwork.  Just  before  this  engagement  they  had  been  doing 
iron  ship-building  work  for  another  firm.  This  was  known  to 
the  boiler-makers  and  ironworkers  engaged  upon  the  Sam  Weller, 
who  were  much  annoyed  at  the  presence  in  their  midst  of  men 
who  they  considered  had  been  imfairly  trenching  upon  their  trade 
or  calling.  It  is  clear  that  they  were  indisposed  to  work  in  com- 
pany with  them.  In  consequence  of  the  feeling  which  had  been 
excited,  one  of  the  ironworkers  telegraphed  to  the  appellant  to 
come  to  the  ship.  On  his  arrival,  he  learned  that  the  iron- 
workers, or  some  of  them,  had  determined  to  throw  down  their 


B.  0.  VOL.  XVn.]      SECT.  V. — KELATION  AS  TO  THIRD   PARTIES.        827 
Ho.  18.  —  AUen  ▼.  Flood,  1888,  A.  C.  116,  116. 

tools  and  leave  at  once.  He  told  the  ironworker  who  had  tele- 
graphed to  him  to  inform  them  that  if  they  did  so  he  should  use 
his  influence  with  the  executive  council  of  the  union  to  deprive 
them  of  any  benefit  from  that  society.  He  then  proceeded  to  an  in- 
terview with  the  manager  and  foreman  of  the  Glengall  Company. 
There  is  some  conflict  of  evidence  as  to  what  passed  at  that  inter* 
view,  —  whether  the  appellant  intimated  that  the  boiler-makers 
engaged  on  the  ship  would  be  called  out  if  the  respondents  were 
allowed  to  continue  to  work  on  board  her,  or  whether  he  merely 
represented  that  the  men  belonging  to  his  union  would  cease  to 
work  for  the  company  if  the  employment  of  the  respondents  con- 
tinued. I  shall  return  to  this  point  presently.  It  is,  at  all 
events,  clear  that  the  manager  of  the  Glengall  Company  came  to 
the  conclusion  that  if  he  continued  to  employ  the  respondents  the 
boiler-makers  would  cease  to  work  for  him.  In  view  of 
this,  he  determined  that  the  *  company  would  not  continue  [*  116] 
the  employment  of  the  respondents.  It  is  said  that  they 
were  **  discharged "  in  consequence  of  the  defendant's  action. 
This  is  true  in  the  sense  that  they  were  no  longer  employed ;  it  is 
untrue  if  intended  to  imply  that  any  right  by  contract  or  other- 
wise was  violated  by  their  discharge. 

In  consequence  of  the  step  taken  by  the  Glengall  Company  this 
action  was  brought.  Besides  the  appellant,  Jackson  and  Knight, 
the  chairman  and  secretary  of  the  union,  were  made  defendants. 
Kennedy,  J. ,  before  whom  the  case  was  tried,  left  to  the  jury  the 
following  questions:  (1)  Did  the  defendant  Allen  maliciously 
induce  the  Glengall  Iron  Company  to  discharge  the  plaintiffs  from 
their  employment  ?  (2)  Did  he  maliciously  induce  the  Glengall 
Iron  Company  not  to  engage  the  plaintiffs,  or  either  of  them? 
The  jury  answered  both  questions  in  the  aflBrmative,  and  assessed 
the  damages  at  £20  for  each  plaintiff.  They  also  found  that  the 
other  defendants  did  not  authorise  the  defendant  Allen  in  acting 
as  he  did,  and  that  the  settlement  of  the  dispute  was  a  matter 
within  the  discretion  of  Allen.  Upon  these  findings  the  learned 
Judge  entered  judgment  for  the  plaintiffs  against  the  appellant, 
but  entered  judgment  for  the  other  defendants. 

This  judgment  was  affirmed  by  the  Court  of  AppeaL  Eigby, 
L.  J.,  however,  only  concurred  in  the  judgment  because  he 
regarded  the  question  as  practically  settled  by  the  judgment  in 
Temperton  v.  Bussell  [1893],  1  Q.  B.   715. 


328  MASTER  AND  SERVANT. 


Ho.  18.  — Allen  ▼.  Flood,  1898,  A.  G.  116, 117. 


It  was  argued  at  the  bar  for  the  respondents  that  the  jury  must 
be  taken  to  have  adopted  the  view  that  the  evidence  for  the  plain- 
tiffs was  correct,  and  that  the  appellant  did  intimate  that  he 
would  call  the  boiler-makers  out  if  the  company  continued  to 
employ  the  respondents.  In  my  opinion,  it  is  not  material 
whether  the  account  of  the  conversation  given  by  the  appellant  or 
by  the  manager  of  the  ironworks  is  the  correct  one ;  but  I  cannot 
concur  in  the  contention  of  the  respondents  that  the  jury  must  be 
taken  to  have  adopted  the  latter  account 

The  learned  Judge,  no  doubt,  indicated  an  opinion,  which  I 
am  not  able  to  share,  that  it  would  have  a  bearing  on  the  ques- 
tion whether  the  appellant  induced  the  company  to  decline 
[•117]  *  to  employ  the  respondents,  and  also,  on  the  question  of 
malice,  whether  the  one  account  of  the  conversation  or  the 
other  was  the  correct  one.  But  he  did  not  lay  this  down  as  a 
matter  of  law;  he  left  it  for  the  jury  to  decide.  Under  these  cir- 
cumstances, I  do  not  think  the  case  can  properly  be  dealt  with  on 
the  assumption  that  the  finding  of  the  jury  involves  a  finding  that 
the  version  of  what  passed  given  by  the  plaintiffs'  witnesses  is 
the  correct  one.  I  have  said  that  I  do  not  share  the  opinion 
entertained  by  the  learned  Judge  that  the  point  upon  which  there 
was  a  conflict  of  testimony  had  a  bearing  upon  the  question 
whether  the  company  were  induced  by  the  appellant  to  cease  to 
employ  or  decline  employing  the  respondents.  What  induced 
them  to  do  so  is  plain :  it  was  their  belief  that  if  they  employed 
the  respondents  the  ironworkers  would  cease  to  work  for  them, 
and  a  sense  of  the  inconvenience  which  this  would  cause.  It  is 
certain  that  this  belief  was  engendered  by  the  statement  which 
the  appellant  made  to  them.  They  would  be  equally  induced  to 
take  the  action,  and  induced  in  precisely  the  same  sense,  whether 
the  representation  was  that  the  ironworkers  would  cease  working, 
or  that  they  would  be  called  out  Nor  was  the  motive  different, 
whichever  representation  was  made.  In  my  judgment,  there  can 
be  no  difference  in  the  legal  effect  of  these  two  representations. 
If  the  one  would  give  a  cause  of  action,  the  other,  in  my  opinion, 
would  equally  do  so. 

The  question  is  whether  the  findings  of  the  jury  entitled  the 
plaintiffs  to  judgment  After  a  careful  and  prolonged  considera- 
tion of  the  arguments  addressed  to  your  Lordships  when  the  case 
was  first  presented  at  the  bar  of  this  House,  I  arrived  at  the  con- 


B.  C.  VOL.  XVII.]      SECT.  V.  —  RELilTION  AS  TO  THIED   PARTIES,         329 
Ho.  18.  —  Allan  ▼.  Flood,  1898,  A.  C.  117,  118. 

elusion  that  the  question  must  be  answered  in  the  negative.  The 
reasons  for  this  conclusion,  which  I  then  prepared,  are  in  sub- 
stance those  to  which  I  now  invite  your  Lordships'  attention.  I 
have  since  carefully  reconsidered  the  matter  in  view  of  the 
opinions  which  have  been  expressed  by  the  learned  Judges  who 
were  summoned  on  the  occasion  of  the  second  argument  at  the  bar, 
but  I  have  seen  no  ground  for  changing  the  opinion  at  which  I 
had  previously  arrived.  I  have,  however,  added  some  observa- 
tions upon  the  views  presented  by  the  learned  Judges. 

•It  is  to  be  observed,  in  the  first  place,  that  the  com-  [*118] 
pany  in  declining  to  employ  the  plaintiffs  were  violating 
no  contract  —  they  were  doing  nothing  wrongful  in  the  eye  of  the 
law.  The  course  which  they  took  was  dictated  by  self-interest : 
they  were  anxious  to  avoid  the  inconvenience  to  their  business 
which  would  ensue  from  a  cessation  of  work  on  behalf  of  the 
ironworkers.  It  was  not  contended  at  the  bar  that  merely  to 
induce  them  to  take  this  course  would  constitute  a  legal  wrong, 
but  it  was  said  to  do  so  because  the  person  inducing  them  acted 
maliciously.  The  Master  of  the  Bolls  declined  in  the  present 
case  to  define  what  was  meant  by  "  maliciously : "  he  considered 
this  a  question  to  be  determined  by  a  jury.  But  if  acts  are,  or 
are  not,  unlawful  and  actionable,  according  as  this  element  of 
malice  be  present  or  absent,  I  think  it  is  essential  to  determine 
what  is  meant  by  it.  I  can  imagine  no  greater  danger  to  the 
community  than  that  a  jury  should  be  at  liberty  to  impose  the 
penalty  of  paying  damages  for  acts  which  are  otherwise  lawful, 
because  they  choose,  without  any  legal  definition  of  the  term,  to 
say  that  they  are  malicious.  No  one  would  know  what  his  rights 
were.  The  result  would  be  to  put  all  our  actions  at  the  mercy  of 
a  particular  tribunal  whose  view  of  their  propriety  might  differ 
from  our  own.  However  malice  may  be  defined,  if  motive  be  an 
ingredient  of  it,  my  sense  of  the  danger  would  not  be  diminished. 

The  danger  is,  I  think,  emphasised  by  the  opinions  of  some  of 
the  learned  Judgea  In  a  case  to  which  I  shall  allude  imme- 
diately the  Master  of  the  Bolls  included  within  his  definition 
of  malicious  acts  persuasion  used  for  the  purpose  "  of  benefiting 
the  defendant  at  the  expense  of  the  plaintiff."  Wills,  J., 
thinks  this  "  going  a  great  deal  too  far, "  and  that,  whether  the 
act  complained  of  was  malicious  depends  upon  whether  the  defend- 
ant has,  in  pursuing  his  own  interests,  "  done  so  by  such  means 


330  MASTER  AND   SERVANT. 


Ho.  18.  —Allan  ▼.  Flood,  1898,  A.  C.  118, 119. 


and  with  such  a  disregard  of  his  neighbour  as  no  honest  and  fair- 
minded  man  ought  to  resort  to."  Here  it  will  be  seen  that 
malice  is  not  made  dependent  on  motive.  The  assumed  motive  is 
a  legitimate  one,  —  the  pursuit  of  one's  own  interest    The  malice 

depends  on  the  means  used  and  the  disregard  of  one's  neigh- 
[*119]  hour,  and  the  test  of  its  existence  is  whether  these  *are 

such  as  no  honest  and  fair-minded  man  ought  to  resort 
to.  There  is  here  room  for  infinite  differences  of  opinion.  Some, 
I  dare  say,  applying  this  test  would  consider  that  a  strike  by 
workmen  at  a  time  damaging  to  the  employer,  or  a  **  lock-out "  by 
an  employer  at  a  time  of  special  hardship  to  the  workmen,  were 
such  means,  and  exhibited  such  a  disregard  of  his  neighbour  as  an 
honest  and  fair-minded  man  ought  not  to  resort  to.  Others  would 
be  of  the  contrary  opinion.  The  truth  is,  this  suggested  test 
makes  men's  responsibility  for  their  actions  depend  on  the  fluctu- 
ating opinions  of  the  tribunal  before  whom  the  case  may  chance 
to  come  as  to  what  a  right-minded  man  ought  or  ought  not  to  do 
in  pursuing  his  own  interests.  Again,  the  late  Cave,  J.  (whom  I 
cannot  name  without  deploring  his  loss),  expressed  the  view  that 
the  action  of  the  appellant  might  have  been  justified  on  the  prin- 
ciples of  trade  competition  if  it  had  been  confined  to  the  time 
when  the  men  were  doing  ironwork,  but  that  it  *  was  without 
just  cause  or  excuse,  and  consequently  malicious,"  inasmuch  as 
the  respondents  were  not  at  the  time  engaged  upon  ironwork.  On 
the  other  hand,  it  is  evident,  from  the  reasoning  of  some  of  the 
learned  Judges,  who  think  the  respondents  entitled  to  succeed, 
that  they  would  not  be  prepared  to  adopt  this  distinction,  and 
would  regard  the  act  as  *  malicious  "  in  either  case. 

The  present  case  was  treated  in  the  Court  below  as  governed 
practically  by  the  previous  decisions  of  the  same  Court  in  Bowen 
V.  Hall,  6  Q.  B.  D.  333,  and  Temperton  v.  Russdl  [1893],  1  Q.  B. 
715.  The  former  of  these  cases  was  an  action  brought  against  the 
defendant  for  maliciously  inducing  a  person  who  had  entered  into 
a  contract  of  service  with  the  plaintiff  to  break  that  contract  It 
raised,  for  the  first  time  in  the  Court  of  Appeal,  the  question 
whether  Lumley  v.  Gye,  2  E.  &  B.  216,  was  rightly  decided.  The 
Master  of  the  Rolls  (then  Brett,  L.  J.,)  delivered  the  judgment 
of  the  Court,  in  which  the  late  Lord  Selboene  concurred,  the 
late  Lord  Chief  Justice  dissenting.  The  law  was  thus  laid  down 
in  the  judgment  of  the  majority  of  the  Court :  "  Merely  to  per- 


E.  C.  VOL.  XVII.]      SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        331 
Ho.  18.  —  Allen  ▼.  Flood,  1898,  A.  C.  119-121. 

Buade  a  person  to  break  his  contract  may  not  be  wrongful 
in  law  or  fact  as  in  the  second  *  case  put  by  Coleridge,  J.  [•  120] 
But  if  the  persuasion  be  used  for  the  indirect  purpose  of 
injuring  the  plaintiff,  or  of  benefiting  the  defendant  at  the  expense 
of  the  plaintiff,  it  is  a  malicious  act,  which  is  in  law  and  in  fact 
a  wrong  act,  and  therefore  a  wrongful  act,  and  therefore  an  action- 
able act,  if  injury  ensues  from  it  We  think  that  it  cannot  be 
doubted  that  a  malicious  act,  such  as  is  above  described,  is  a 
wrongful  act  in  law  and  in  fact" 

This  case  was  followed,  and  the  view  of  the  law  thus  expressed 
was  reasserted  by  the  Master  of  the  Bolls  in  Temperton  v. 
Russell,  It  will  be  seen  that  **  malicious  "  is  here  defined  as  the 
indirect  purpose  of  injuring  the  plaintiff,  or  of  benefiting  the 
defendant  at  the  expense  of  the  plaintiff.  It  is  said  that  a 
malicious  act  thus  defined  is,  in  law  and  in  fact,  a  wrong  act,  and 
therefore  a  wrongful  act.  I  am  not  sure  that  I  quiet  understand 
what  is  meant  by  saying  that  it  is  "  in  fact "  a  wrong  act,  as  dis- 
tinguished from  its  being  so  "  in  law, '  and  that  because  so  wrong 
it  is  therefore  wrongful.  I  can  only  understand  it  as  meaning 
that  it  is  an  act  morally  wrong.  The  law  certainly  does  not 
profess  to  treat  as  a  legal  wrong  every  act  which  may  be  disap- 
proved of  in  point  of  morality ;  but,  further,  I  cannot  agree  that 
all  persuasion  where  the  object  is  to  benefit  the  person  who  uses 
the  persuasion  at  the  expense  of  another  is  morally  wrong.  Num- 
berless instances  might  be  put  in  which  such  persuasion,  which 
is  of  constant  occurrence  in  the  affairs  of  life,  would  not  be 
regarded  by  any  one  as  reprehensible.  The  judgment  is  grounded 
almost  wholly  upon  the  presence  of  this  element,  —  that  the  pur- 
pose of  the  inducement  is  to  injure  the  plaintiff,  or  to  benefit  the 
defendant  at  his  expense.  The  fact  that  the  act  which  is  induced 
by  the  persuasion  is  the  breach  of  a  contract  with  the  plaintiff  is 
treated  as  a  subordinate  matter  which  without  this  element  would 
not  be  a  wrong  act,  or  an  act  wrongful  and  therefore  actionable. 
The  motive  of  the  person  who  did  the  act  complained  of  was 
thus  treated  as  the  gist  of  the  action.  In  T&niperton  v.  Bussell 
the  further  step  was  taken  by  the  majority  of  the  Court,  A.  L. 
Smith,  L.  J.,  reserving  his  opinion  on  the  point,  of  asserting 
that  it  was  immaterial  that  the  act  induced  was  not  the 
*  breach  of  a  contract,  but  only  the  not  entering  into  a  [•  121] 
contract,  provided  that  the  motive  of  desiring  to  injure 


332  MASTEB  AND  SERVANT. 


No.  18.  —  AUea  ▼.  Flood,  1898,  A.  C.  181,  188. 


the  plaintiff,  or  to  benefit  the  defendant  at  the  expense  of  the 
plaintiff,  was  present.  It  seems  to  have  been  regarded  as  only  a 
small  step  from  the  one  decision  to  the  other,  and  it  was  said  that 
there  seemed  to  be  no  good  reason  why,  if  an  action  lay  for  mali- 
ciously inducing  a  breach  of  contract,  it  should  not  equally  lie  for 
maliciously  inducing  a  person  not  to  enter  into  a  contract  So  far 
from  thinking  it  a  small  step  from  the  one  decision  to  the  other,  I 
think  there  is  a  chasm  between  them.  The  reason  for  a  distinc- 
tion between  the  two  cases  appears  to  me  to  be  this:  that  in 
the  one  case  the  act  procured  was  the  violation  of  a  legal  right, 
for  which  the  person  doing  the  act  which  injured  the  plaintiff 
could  be  sued  as  well  as  the  person  who  procured  it ;  whilst  in 
the  other  case  no  legal  right  was  violated  by  the  person  who  did 
the  act  from  which  the  plaintiff  suffered :  he  would  not  be  liable 
to  be  sued  in  respect  of  the  act  done,  whilst  the  person  who  in- 
duced him  to  do  the  act  would  be  liable  to  an  action. 

I  think  this  was  an  entirely  new  departure.  A  study  of  the 
case  of  lAimley  v.  Gye  has  satisfied  me  that  in  that  case  the  ma- 
jority of  the  Court  regarded  the  circumstance  that  what  the  de- 
fendant procured  was  a  breach  of  contract  as  the  essence  of  the 
cause  of  action.  It  is  true  that  the  word  "  maliciously  "  was  to 
be  found  in  the  declaration  the  validity  of  which  was  then  under 
consideration ;  but  I  do  not  think  the  learned  Judges  regarded  the 
allegation  as  involving  the  necessity  of  proving  an  evil  motive  on 
the  part  of  the  defendant,  but  merely  as  implying  that  the  defend- 
ant had  wilfully  and  knowingly  procured  a  breach  of  contract. 
Indeed,  Crompton,  J.,  appears  to  me  to  indicate  this  in  express 
terms.  He  says :  "  It  must  now  be  considered  clear  law  that  a 
person  who  wrongfully  tmd  maliciously,  or  which  is  the  same 
thing,  with  notice,  interrupts  the  relation  subsisting  between 
master  and  servant  by  procuring  the  servant  to  depart  from  the 
master's  service,  or  by  harbouring  and  keeping  him  as  servant 
after  he  has  quitted  it,  and  during  the  time  stipulated 
[*  122]  for  as  the  period  of  service,  *  whereby  the  master  is  in- 
jured, commits  a  wrongful  act  for  which  he  is  responsible 
at  law. "  He  then  proceeds  to  consider  whether  the  same  law  is 
applicable  to  a  contract  for  future  service  in  the  case  of  a  theatrical 
singer. 

Erle,  J.,  said:  "The  authorities  are   numerous   and  uniform 
that  an  action  will  lie  by  a  master  against  a  person  who  procures 


B.  C.  VOL.  XVIL]      sect.  V.  —  RELATION  AS  TO  THIRD  PARTIES.         333 
Ho.  18.  —  AUan  ▼.  Flood,  1898,  A.  C.  122, 123. 

that  a  servant  should  unlav/hiUy  leave  his  service.  The  principle 
involved  in  these  cases  comprises  the  present,  for  there  the  right 
of  action  in  the  master  arises  from  the  wrongful  act  of  the  de- 
fendant in  procuring  that  the  person  hired  should  break  his  con- 
tract by  putting  an  end  to  the  relation  of  employer  and  employed. " 
Not  a  word,  be  it  observed,  is  said  about  the  motive  as  constitut- 
ing an  element  in  the  wrongful  act.  This  is  made,  if  possible, 
clearer  by  the  answer  which  the  learned  Judge  gives  to  the  objec- 
tion that  this  class  of  actions  for  procuring  the  breach  of  a  con- 
tract of  hiring  rested  upon  no  principle,  and  ought  not  to  be 
extended  beyond  the  cases  theretofore  decided  relating  to  trade, 
manufacture,  or  household  service.  "  The  answer, "  said  the 
learned  Judge,  "  appears  to  me  to  be  that  the  class  of  cases  re- 
ferred to  rests  upon  the  principle  that  the  procurement  of  the 
violation  of  the  right  is  a  cause  of  action,  and  that  when  this 
principle  is  applied  to  a  violation  of  a  right  arising  upon  a 
contract  of  hiring  the  nature  of  the  service  contracted  for  is 
immaterial. " 

I  think  the  view  of  Wightman,  J. ,  was  substantially  the  same. 
He  relies  much  upon  the  case  of  Winsmore  v.  Greeribank,  Willes, 
577.  In  relation  to  that  case  he  says :  **  It  was  primd  facie  an 
unlawful  act  of  the  wife  to  live  apart  from  her  husband,  and  it 
was  unlawful,  and  therefore  tortious,  in  the  defendant  to  procure 
and  persuade  her  to  do  an  imlawful  act;  and  as  damage  to  the 
plaintiff  was  thereby  occasioned,  an  action  on  the  case  was  main- 
tainable. This  case  appears  to  me  to  be  an  exceedingly  strong 
authority  in  the  plaintiff's  favour.  It  was  undoubtedly,  primd 
fade,  an  unlawful  act  on  the  part  of  Miss  Wagner  to  break  her 
contract,  and  therefore  a  tortious  act  of  the  defendant  maliciously 
to  procure  her  to  do  so.  * 

It  is  true  the  learned  Judge  here  uses  the  word  "  mali- 
ciously," *but  I  think  he  means  no  more  by  this  than  [*123] 
"  wilfully  and  knowing  that  he  was  procuring  an  unlaw- 
ful act "  The  essence  of  the  tort  was  manifestly  regarded  by  the 
learned  Judge  as  the  procuring  one  person  to  do  an  unlawful  act 
to  the  injury  of  another.  In  Winsmore  v.  Greeiibank,  which  the 
learned  Judge  relied  upon  as  a  strong  authority  in  support  of  the 
plaintifT's  case,  there  was  not  even  an  allegation  of  malice  in 
the  first  count  The  allegation  was  that  the  defendant  "  unlaw- 
fully and  unjustly  "  procured  a  wife  not  to  return  to  her  husband. 


334  MASTEB  AND  SERVANT. 


No.  18.  —  AUea  y.  Flood,  1898,  A.  C.  188, 184. 


whereby  he  was  damnified.  Willes,  Ch.  J. ,  in  his  judgment,  said, 
in  answer  to  objections  that  were  taken  to  the  first  count :  "  It 
must  be  an  unlawful  procuring,  and  it  need  not  be  shown  on  the 
pleadings  how  it  is  unlawful.  It  was  said  that  it  was  necessary 
for  the  plaintiff  to  add  '  by  false  insinuations, '  but  it  is  not  mate- 
rial whether  they  were  true  or  false.  If  they  were  true,  and  by 
means  of  them  the  defendant  persuaded  the  plaintiff's  wife  to  do 
an  unlawful  act,  it  was  unlawful  in  the  defendant. " 

Upon  a  review,  then,  of  the  judgment  in  Lumdey  v.  Qyty  I  am 
satisfied  that  the  procuring  what  was  described  as  an  unlawful 
act,  namely,  a  breach  of  contract,  was  regarded  as  the  gist  of  the 
action.  I  think  the  judgment  would  have  been  precisely  the 
same  if,  instead  of  the  word  "  maliciously, '  the  words  "  wil- 
fully and  with  notice  of  the  contract,"  had  been  found  in  the 
declaration.  Every  word  of  the  reasoning  of  the  three  learned 
Judges  would  have  been  equally  applicable  to  that  case.  I  am 
not  concerned  now  to  inquire  whether  the  decision  in  iMmley 
V.  Oye  was  right  I  admit  the  force  of  the  reasons  given  by  the 
learned  Judges  for  holding  that  an  action  lies  not  only  against 
a  person  who  breaks  a  contract,  but  against  any  one  procuring  a 
breach  of  contract  to  the  detriment  of  the  plaintiff.  There  are, 
however,  arguments  the  other  way,  and  I  must  not  be  understood 
as  expressing  an  opinion  one  way  or  the  other,  whether  such  an 
action  can  be  maintained. 

It  is  certainly  a  general  rule  of  our  law  that  an  act  prim& 

facie  lawful  is  not  unlawful  and  actionable  on  account  of 

[*  124]  the  *  motive  which  dictated  it.     I  put  aside  the  case  of 

conspiracy,  which  is  anomalous  in  more  than  one  respect 

It  has  recently  been  held  in  this  House,  in  the  case  of  Bradford 
Corporation  v.  Pickles  [1895],  A.  C.  587,  594,  that  acts  done  by 
the  defendant"  upon  his  own  land  were  not  actionable  when  they 
were  within  his  legal  rights,  even  though  his  motive  were  to 
prejudice  his  neighbour.  The  language  of  the  noble  tmd  learned 
Lords  was  distinct  The  Lokd  Chancellok  said :  "  This  is  not  a 
case  where  the  state  of  mind  of  the  person  doing  the  act  can  affect 
the  right  If  it  was  a  lawful  act,  however  ill  the  motive  might 
be,  he  had  a  right  to  do  it  If  it  was  an  unlawful  act,  however 
good  the  motive  might  be,  he  would  have  no  right  to  do  it "  The 
statement  was  confined  to  the  class  of  cases  then  before  the  House ; 
but  I  apprehend  that  what  was  said  is  not  applicable  only  to 


B.  C.  VOL.  XVIL]      sect.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        335 
Ho.  18.~AUeii  ▼.  Flood,  1898,  A.  C.  124, 126. 

rights  of  property,  but  is  equally  applicable  to  the  exercise  by  an 
individual  of  his  other  rights. 

The  common  law  on  the  subject  was  emphatically  expressed  by 
Parke,  B.  ,  in  delivering  the  judgment  of  the  Court  in  Steverison 
V.  Nevmham,  13  C.  B.  285,  297.  In  that  case  the  question  was 
whether  a  declaration  was  good  which  averred  that  the  defendant 
"  maliciously  *  distrained  for  more  rent  than  was  due.  It  was 
held  that  the  allegation  of  malice  did  not  make  it  good.  Parke, 
B. ,  said :  "  An  act  which  does  not  amount  to  a  legal  injury  caimot 
be  actionable  because  it  is  done  with  a  bad  intent. " 

More  than  one  of  the  learned  Judges  who  were  summoned  refers 
with  approval  to  the  definition  of  malice  by  Bayley,  J.,  in  the 
case  of  Bromage  v.  Prosser,  4  B.  &  C.  247,  255  (28  K.  R  241, 
247) :  "  Malice  in  common  acceptation  of  the  term  means  ill-will 
against  a  person,  but  in  its  legal  sense  it  means  a  wrongful  act 
done  intentionally  without  just  cause  or  excuse."  It  will  be 
observed  that  this  definition  eliminates  motive  altogether.  It 
includes  only  "  wrongful  "  acts  intentionally  done.  I  may  remark 
in  passing  that  I  am  quite  unable  to  see  how  the  definition  assists 
the  respondents.  It  seems  to  me  to  tell  the  other  way.  In  the 
present  case  the  contention  is  that  the  malicious  motive  makes 
"  wrongful "  an  act  that  otherwise  would  not  be  so. 

*  It  may  be  convenient  here  to  refer  to  Green  v.  London  [*  125] 
Creneral  Omnibus  Co.,  7  C.  B.  (N.  S.)  290,  which  was  re- 
lied on  as  showing  that  a  malicious  motive  may  make  actionable 
acts  otherwise  innocent  In  my  opinion  it  affords  no  support  to 
such  a  proposition.  Acts  were  charged  in  the  declaration  which 
manifestly  interfered  with  the  plaintifif  in  the  free  use  of  the 
highway  to  which  he  was  entitled.  The  declaration  averred  that 
he  was  obstructed  in  the  use  of  it  It  was  demurred  to  on  the 
ground  that  a  corporation  could  not  be  guilty  of  malice,  and  that 
this  was  of  the  essence  of  the  cause  of  action.  The  decision  was 
only  that  the  declaration  was  good.  It  was  not  held  that  a  mali- 
cious motive  was  essential.  Erle,  Ch.  J.,  in  delivering  the  judg- 
ment of  the  Court,  stated  as  the  ground  of  the  demurrer,  that  the 
declaration  charged  "*  a  wilful  and  iutentional  wrong,"  and  that 
the  defendants  being  a  corporation  could  not  be  guilty  of  such  a 
wrong.  He  obviously  gave  the  averment  of  malice  the  meaning 
attributed  to  it  by  Bayley,  J.,  in  the  case  just  referred  to, 
namely,  that  the  wrongful  acts  were  done  intentionally. 


336  MASTER  AND   SERVANT. 


No.  13.  —  Allan  ▼.  Flood,  1898,  A.  C.  126,  126. 


Great  stress  was  laid  at  the  bar  on  the  circumstance  that  in  an 
action  for  maliciously  and  without  reasonable  and  probable  cause 
putting  in  motion  legal  process  an  evil  motive  is  an  essential  in- 
gredient    I  have  always  understood,  and  I  think  that  has  been  the 
general  understanding,  that  this  was  an  exceptional  case.     The 
person   against  whom  proceedings  have  been   initiated  without 
reasonable  tmd  probable  cause  is  primCt  facie  wronged.     It  might 
well  have  been  held  that  an  action  always  lay  for  thus  putting  the 
law  in  motion.     But  I  apprehend  that  the  person  taking  proceed- 
ings was  saved  from  liability  if  he  acted  in  good  faith,  because  it 
was  thought  that  men  might  otherwise  be  too  much  deterred  from 
enforcing  the  law,  and  that  this  would  be  disadvantageous  to  the 
public.     Some  of   the  learned  Judges  cite  actions  of  libel  and 
slander  as  instances  in  which  the  legal  liability  depends  on  the 
presence  or  absence  of  malice.     I  think  this  a  mistake.     The  man 
who  defames  another  by  false  allegations  is  liable  to  an  action, 
however  good  his  motive,  and  however  honestly  he  believed  in 
the  statement  he  made.     It  is  true  that  in  a  limited  class 
[*  126]   of  *  cases  the  law,  under  certain  circumstances,  regards 
the  occasion  as  privileged,  and  exonerates  the  person  who 
has  made  false  defamatory  statements  from   liability  if  he   has 
made  them  in  good  faith.     But  if  there  be  not  that  duty  or  interest 
which  in  law  creates  the  privilege,  then,  though  the  person  mak- 
ing the  statements  may  have  acted  from  the  best  of  motives,  and 
felt  it  his  duty  to  make  them,  he  is  none  the  less  liable.     The 
gist  of  the  action  is  that  the  statement  was  false  and  defamatory. 
Because  in  a  strictly  limited  class  of  cases  the  law  allows  the 
defence  that  the  statements  were  made  in  good  faith,  it  seems  to 
me,  with  all  deference,  illogical  to  affirm  that  malice  constitutes 
one  of  the  elements  of  the  torts  known  to  the  law  as  libel  and 
slander.     But  even  if  it  could  be  established  that  in  cases  falling 
within  certain  well-defined  categories,  it  is  settled  law  that  an 
evil  motive  renders  actionable  acts  otherwise  innocent,  that  is 
surely  far  from  showing  that  such  a  motive  always  makes  action- 
able acts  prejudicial  to  another  which  are  otherwise  lawful,  or 
that  it  does  so  in  cases  like  the  present  utterly  dissimilar  from 
those  within  the  categories  referred  to. 

The  question  raised  by  the  decision  under  appeal  is  one  of  vast 
importance  and  wide-reaching  consequences.  In  TemperUm  v. 
Bussell  [1893],  1  Q.  B.   715,  it  was  held   that  the  principle  of 


a  c.  VOL.  xvil]    sect.  v.  —  relation  as  to  third  parties.       337 

Ho.  12.  —  AUen  ▼.  Hood,  1898,  A.  C.  136,  ?87. 

Lwmley  v.  Gye,  2  E.  &  B.  216,  and  Bowen  v.  Hall,  6  Q.  B.  D. 
333,  was  not  confined  to  breaches  of  contract  of  service,  but 
applied  to  breaches  of  any  contract.  The  law  laid  down  in  Bowen 
V.  Hall  in  terms  applies  to  all  contracts,  and  I  quite  agree  that 
the  nature  of  the  contract  can  make  no  difference. 

If  the  judgment  under  appeal  is  to  stand,  and  the  fact  that  the 
act  procured  was  unlawful  as  being  a  breach  of  contract  be  imma- 
terial, it  follows  that  every  person  who  persuades  another  not  to 
enter  into  any  contract  with  a  third  person  may  be  sued  by  that 
third  person  if  the  object  were  to  benefit  himself  at  the  expense  of 
such  person.  Such  a  case  is  within  the  very  words  employed  in 
Bowen  v.  Hall  as  applied  in  the  present  judgment  I  do  not 
think  it  possible  to  maintain  such  a  proposition.  It  would 
obviously  apply  where  one  trader  *  induced  another  not  to  [•  127] 
contract  with  a  third  person  with  whom  he  was  in  nego- 
tiation, but  to  make  the  contract  with  himself  instead,  a  proceed- 
ing which  occurs  every  day,  and  the  legitimacy  of  which  no  one 
would  question.  Yet  it  is  within  the  very  language  used  in  Bowen 
V.  Hall.  He  induces  a  person  not  to  enter  into  a  contract  with  a 
third  person,  and  his  object  is  to  benefit  himself  at  the  expense  of 
the  person  who  would  otherwise  have  obtained  the  contract,  and 
thus  necessarily  to  injure  him  by  depriving  him  of  it  It  was 
said  at  the  bar  by  the  learned  counsel  for  the  respondents,  in 
answer  to  this  difficulty,  that  there  W8w  an  exception  in  favour  of 
trade  competition.  I  know  of  no  ground  for  saying  that  such  an 
exercise  of  individual  right  is  treated  with  exceptional  favour  by 
the  law.  I  shall  revert  to  this  point  presently  in  connection  with 
another  branch  of  the  respondents'  argument  But  it  is  possible 
to  give  many  illustrations  to  which  no  such  answer  would  apply. 
I  give  one :  a  landowner  persuades  another  to  sell  him  a  piece  of 
land  for  which  a  neighbour  is  negotiating.  It  is  so  situated  that 
it  will  improve  the  value  of  the  property  of  whichever  of  them 
obtains  it  His  motive  is  to  benefit  himself  at  his  neighbour's 
expense;  he  induces  the  owner  of  the  land  not- to  contract  with  his 
neighbour.  The  case  is  within  the  terms  of  the  judgment  in 
Bowen  v.  Hall.  Would  it  be  possible  to  contend  that  an  action 
lay  in  such  a  case  ?  If  the  fact  be  that  malice  is  the  gist  of  the 
action  for  inducing  or  procuring  an  act  to  be  done  to  the  prejudice 
of  another,  and  not  that  the  act  induced  or  procured  is  an  unlawful 
one  as  being  a  breach  of  contract  or  otherwise,  I  can  see  no  possl- 
voL.  XVII. — 22 


338  MASTER  AND  SERVANT. 


No.  18.  — AUea  ▼.  Flood,  1898,  A.  C.  127, 128. 


ble  ground  for  confining  the  action  to  cases  in  which  the  thing 
induced  is  the  not  entering  into  a  contract  It  seems  to  me  that 
it  must  equally  lie  in  the  case  of  every  lawful  act  which  one  man 
induces  another  to  do  where  his  purpose  is  to  injure  his  neighbour 
or  to  benefit  himself  at  his  expense.  I  cannot  hold  that  such  a 
proposition  is  tenable  in  principle,  and  no  authority  is  to  be 
found  for  it  I  should  be  the  last  to  suggest  that  the  fact  that 
there  was  no  precedent  was  in  all  cases  conclusive  against 
[*  128]  the  right  to  maintain  an  action.  It  is  *  the  function  of 
the  Courts  to  apply  established  legal  principles  to  the 
changing  circumstances  and  conditions  of  human  life.  But  the 
motive  of  injuring  one's  neighbour  or  of  benefiting  one's  self  at  his 
expense  is  as  old  as  human  nature.  It  must  for  centuries  have 
moved  men  in  countless  instances  to  persuade  others  to  do  or  to 
refrain  from  doing  particular  acts.  The  fact  that  under  such  cir- 
cumstances no  authority  for  an  action  founded  on  these  elements 
has  been  discovered  does  go  far  to  show  that  such  an  action  cannot 
be  maintained.  I  think  these  considerations  (subject  to  a  point 
which  I  will  presently  discuss)  are  suflBcient  to  show  that  the 
present  action  cannot  be  maintained. 

It  is  said  that  the  statement  that  the  defendant  would  call  the 
men  out,  if  made,  was  a  threat  It  is  this  aspect  of  the  case 
which  has  obviously  greatly  influenced  some  of  the  learned  Judges. 
Hawkins,  J.,  says  that  the  defendant  without  excuse  or  justifica- 
tion "  wilfully,  unlawfully,  unjustly,  and  tyrannically  invaded  the 
plaintiffs'  right  by  intimidating  and  coercing  their  employers  to 
deprive  them  of  their  present  and  future  employment, "  and  that 
the  plaintiffs  are  therefore  entitled  to  maintain  this  action.  But 
**  excuse  or  justification  "  is  only  needed  where  an  act  is  primd 
facie  wrongful.  Whether  the  defendant's  act  was  so  is  the  matter 
to  be  determined.  To  say  that  the  defendant  acted  "  unlawfully  " 
is,  with  all  respect,  to  beg  the  question,  which  is  whether  he  did 
so  or  not  To  describe  his  acts  as  unjust  and  tyrannical  proves 
nothing,  for  these  epithets  may  be  and  are,  in  popular  language, 
constantly  applied  to  acts  which  are  within  a  man's  rights,  and 
unquestionably  lawful.  In  my  opinion  these  epithets  do  not 
advance  us  a  step  towards  the  answer  to  the  question  which  has  to 
be  solved.  The  proposition  is  therefore  reduced  to  this,  that  the 
appellant  invaded  the  plaintiffs'  right  by  intimidating  and  coerc- 
ing their  employers.      In  another  passage  in  his  opinion   the 


B.  0.  VOL.  XVII.]      SECT.  V.  —  RELATION  AS   TO  THIRD   PARTIES.        339 
Ho.  12.  —Allan  y.  Flood,  1898,  A.  C.  188, 129. 

learned  Judge  says  that  there  is  no  authority  for  the  proposition 
that  to  render  threats,  menaces,  intimidation,  or  coercion  available 
as  elements  in  a  cause  of  action,  they  must  be  of  such  a  character 
as  to  create  fear  of  personal  violence.  I  quite  agree  with  this. 
The  threat  of  violence  to  property  is  equally  a  threat  in 
the  eye  of  the  law.  *  And  many  other  instances  might  [*  129] 
be  given.  On  the  other  hand  it  is  undeniable  that  the 
terms  **  threat, "  *  coercion, "  and  even  "  intimidation, "  are  often 
applied  in  popular  language  to  utterances  which  are  quite  lawful 
and  which  give  rise  to  no  liability,  either  civil  or  criminal.  They 
mean  no  more  than  this,  that  the  so-called  threat  puts  pressure, 
and  perhaps  extreme  pressure,  on  the  person  to  whom  it  is  ad- 
dressed to  take  a  particular  course.  Of  this,  again,  numberless 
instances  might  be  given.  Even,  then,  if  it  can  be  said  without 
abuse  of  language  that  the  employers  were  "  intimidated  and  co- 
erced "  by  the  appellant,  —  even  if  this  be  in  a  certain  sense  true, 
it  by  no  means  follows  that  he  committed  a  wrong  or  is  under 
any  legal  liability  for  his  act  Everything  depends  on  the  nature 
of  the  representation  or  statement  by  which  the  pressure  was 
exercised.  The  law  cannot  regard  the  act  differently  because  you 
choose  to  call  it  a  threat  or  coercion  instead  of  an  intimation  or 
warning. 

I  understood  it  to  be  admitted  at  the  bar,  and  it  was  indeed 
stated  by  one  of  the  learned  Judges  in  the  Court  of  Appeal,  that 
it  would  have  been  perfectly  lawful  for  all  the  ironworkers  to 
leave  their  employment  and  not  to  accept  a  subsequent  engagement 
to  work  in  the  company  of  the  plaintiffs.  At  all  events,  I  cannot 
doubt  that  this  would  have  been  so.  I  cannot  doubt  either  that 
the^  appellant  or  the  authorities  of  the  union  would  equally  have 
acted  within  his  or  their  rights  if  he  or  they  had  "  called  the  men 
out"  They  were  members  of  the  union.  It  was  for  them  to 
determine  whether  they  would  become  so  or  not,  and  whether 
they  would  follow  or  not  follow  the  instructions  of  its  authorities ; 
though  no  doubt  if  they  had  refused  to  obey  any  instructions 
which  under  the  rules  of  the  union  it  was  competent  for  the 
authorities  to  give,  they  might  have  lost  the  benefits  they  derived 
from  membership.  It  is  not  for  your  Lordships  to  express  tmy 
opinion  on  the  policy  of  trade  unions,  membership  of  which  may 
undoubtedly  influence  the  action  of  those  who  have  joined  them. 
They  are  now  recognised  by   law;    there  are  combinations  of 


340  MASTER  AND  SERVANT. 


No.  18.  —  Allan  Y.  Flood,  1898,  A.  C.  129-181. 


employers  as  well  as  of  employed     The  members  of  these  imions, 
of  whichever  class  they  are  composed,  act  in  the  interest  of  their 

class.     If  they  resort  to  unlawful  acts  they  may  be  in- 
[*  130]  dieted  or  sued.     If  they  *  do  not  resort  to  unlawful  acts 

they  are  entitled  to  further  their  interests  in  the  manner 
which  seems  to  them  best,  and  most  likely  to  be  effectual. 

If,  then,  the  men  had  ceased  to  work  for  the  company  either  of 
their  own  motion  or  because  they  were  "  called  out,  *  and  the 
company  in  order  to  secure  their  return  had  thought  it  expedient 
no  longer  to  employ  the  plaintiffs,  they  could  certainly  have  main- 
tained no  action.  Yet  the  damage  to  them  would  have  been  just 
the  same.  The  employers  would  have  been  subjected  to  precisely 
the  same  "  coercion  "  and  "  intimidation, "  save  that  it  was  by  act 
and  not  by  prospect  of  the  act;  they  would  have  yielded  in  pre- 
cisely the  same  way  to  the  pressure  put  upon  them,  and  been 
actuated  by  the  same  motive,  and  the  aim  of  those  who  exercised 
the  pressure  would  have  been  precisely  the  same.  The  only  differ- 
ence would  have  been  the  additional  result  that  the  company  also 
might  have  suffered  loss.  I  am  quite  unable  to  conceive  how  the 
plaintiffs  can  have  a  cause  for  action,  because,  instead  of  the 
ironworkers  leaving,  either  of  their  own  motion  or  because  they 
were  called  out,  there  was  an  intimation  beforehand  that  either 
the  one  or  the  other  of  these  courses  would  be  pursued.  The  iron- 
workers were  employed  on  the  terms  that  they  might  leave  at  the 
close  of  any  day,  and  that  on  the  other  hand  the  employers  might, 
if  they  saw  fit,  then  discharge  them.  The  company  had  employed 
the  men  knowing  that  they  were  members  of  the  union,  and  they 
had  on  one  occasion,  at  least,  dealt  with  the  appellant  as  its 
delegate.  They  had  no  ground  for  complaint  if  the  men  left,  as 
they  were  by  contract  entitled  to  do,  whether  the  men  left  of  their 
own  motion  or  followed  the  instruction  of  their  union  leaders.  It 
is  said  that  the  company  were  in  the  power  of  the  men  because  of 
the  business  loss  to  which  the  withdrawal  of  the  men  would  sub- 
ject them.  But  to  what  was  this  due,  if  not  to  the  act  of  the 
company  themselves  in  employing  these  men  imder  a  contract 
which  either  party  might  any  day  determine  ?  Under  such  cir- 
cumstances, to  compare  the  act  of  the  comptmy  to  that  of  the  trav- 
eller who,  on  a  pistol  being  presented  to  his  head,  hands  his  purse 

to  the  highwayman,  appears  to  me  grotesqua 
[*  131]       *  The  object  which  the  appellant  and  the  ironworkers 


B.  C.  VOL.  XVn.]      SECT.  V.  —  KELATION  AS  TO  THIRD  PARTIES.        341 
Ho.  18.— Allan  y.  Flood,  1898,  A.  C.  181, 188. 

had  in  view  was  that  they  should  be  freed  from  the  presence 
of  men  with  whom  they  disliked  working,  or  to  prevent  what 
they  deemed  an  unfair  interference  with  their  rights  by  men 
who  did  not  belong  to  their  craft  doing  the  work  to  which  they 
had  been  trained.  Whether  we  approve  or  disapprove  of  such 
attempted  trade  restrictions,  it  was  entirely  within  the  right  of 
the  ironworkers  to  take  any  steps,  not  unlawful,  to  prevent  any  of 
the  work  which  they  regarded  as  legitimately  theirs  being  in- 
trusted to  other  hands. 

Some  stress  was  laid  in  the  Court  below  upon  the  fact  that  the 
plaintifiFs  were  not  at  the  time  in  question  engaged  upon  ironwork, 
although  immediately  before  that  time  they  had  been  so  employed 
elsewhere.  This,  it  was  said,  showed  that  the  motive  of  the 
defendant  and  the  ironworkers  was  the  "  punishment "  of  the 
plaintiffs  for  what  they  had  previously  done.  1  think  the  use  of 
the  word  **  punishment "  has  proved  misleading.  That  word  does 
not  necessarily  imply  that  vengeance  is  being  wreaked  for  an  act 
already  done,  though  no  doubt  it  is  sometimes  used  in  that  sense. 
When  a  Court  of  justice,  for  example,  awards  punishment  for  a 
breach  of  the  law  the  object  is  not  vengeance.  The  purpose  is  to 
deter  the  person  who  has  broken  the  law  from  a  repetition  of  his 
act,  and  to  deter  other  persons  also  from  committing  similar 
breaches  of  the  law. 

In  the  present  case  it  was  admitted  that  the  defendant  had  no 
personal  spite  against  the  plaintiffs.  His  object  was,  at  the 
utmost,  to  prevent  them  in  the  future  from  doing  work  which  he 
thought  was  not  within  their  province,  but  within  that  of  the 
ironworkers.  If  he  had  acted  in  exactly  the  same  manner  as  he 
did  at  a  time  when  the  plaintiffs  were  engaged  upon  ironwork, 
his  motive  would  have  been  precisely  the  same  as  it  was  in  the 
present  case,  and  the  result  to  the  plaintiffs  would  have  been  in 
nowise  different  I  am  unable  to  see,  then,  that  there  is  any 
difference  either  in  point  of  ethics  or  law  between  the  two  cases. 
The  ironworkers  were  no  more  bound  to  work  with  those  whose 
presence  was  disagreeable  to  them  than  the  plaintiffs  were 
bound  to  refuse  to  work  because  they  found  that  *  this  [•132] 
was  the  case.  The  object  which  the  defendant,  and  those 
whom  he  represented,  had  in  view  throughout  was  what  they 
believed  to  be  the  interest  of  the  class  to  which  they  belonged ;  the 
step  taken  was  a  means  to  that  end.     The  act  which  caused  the 


342  kASTEE  AND  SERVANT. 

Ho.  18.  —  Allan  y.  Flood,  1898,  A.  C.  182, 188. 

damage  to  the  planitiflfs  was  that  of  the  iron  company  in  refusing 
to  employ  them.  The  company  would  not  subordinate  their  own 
interests  to  the  plaintiffs.  It  is  conceded  that  they  could  take 
this  course  with  impunity.  Why,  then,  should  the  defendant  be 
liable  because  he  did  not  subordinate  the  interests  of  those  he 
represented  to  the  plaintiffs*  ?  Self-interest  dictated  alike  the  act 
of  those  who  caused  the  damage,  and  the  act  which  is  found  to 
have  induced  them  to  cause  it. 

I  have  been  dealing  so  far  with  the  ground  upon  which  the 
judgment  in  the  Court  below  proceeded.  The  learned  counsel  for 
the  respondents,  however,  rested  their  arguments  mainly  upon  a 
different  ground,  and  it  is  this  ground,  and  not  that  taken  in  the 
Court  below,  which  has  found  most  favour  with  the  learned 
Judges  who  think  the  plaintiffs  entitled  to  judgment 

It  was  contended  that  the  defendant  by  the  course  he  took  had 
interfered  with  the  plaintiffs  in  their  trade  or  calling,  and  that 
this  of  itself  was  an  actionable  wrong.  In  support  of  this  very 
broad  proposition  reliance  was  mainly  placed  on  the  case  of  Kecble 
V.  mckeringill,  11  East,  574:  n.  (11  E.  R  273  n.).  The  declara- 
tion charged  the  defendant  with  firing  a  gun  with  design  to 
damnify  the  plaintiff,  and  frighten  the  wild  fowl  from  his  decoy. 
In  one  report  (Holt,  14;  11  East,  573  n.)  it  is  stated  that  the 
plaintiff  was  lord  of  a  manor,  and  had  a  decoy,  and  the  plaintiff 
had  also  made  a  decoy  upon  his  own  ground,  which  was  next 
adjoining  the  defendant's  ground,  and  there  the  plaintiff  had  decoy 
and  other  ducks,  of  which  he  made  profit.  It  was  held  that  the 
action  lay.  In  another  report  (11  Mod.  74)  this  observation  is 
attributed  to  Lord  Holt  :  "  Suppose  defendant  had  shot  in  his 
own  ground,  if  he  had  occasion  to  shoot  it  would  have  been  one 
thing,  but  to  shoot  on  purpose  to  damage  the  plaintiff  is  another 
thing,  and  a  wrong.*  In  another  report  (11  East,  574  n,)  Lord 
Holt  is  reported  as  saying :  "  The  action  lies,  for,  first, 
[*133]  *  using  or  making  a  decoy  is  lawful;  secondly,  this 
employment  of  his  ground  for  that  use  is  profitable  to  the 
plaintiff,  as  is  the  skill  and  management  of  that  employment' 
It  is  argued  that  this  decision  rests  upon  the  principle  that  inten- 
tional interference  with  the  trade  of  another  is  wrongful.  If  it 
was  intended  by  the  decision  to  draw  a  distinction  between  firing 
by  the  defendant  on  his  own  land  when  the  decoy  was  kept  by  the 
plaintiff  for  purposes  of  trade  profit,  and  doing  the  same  act  when 


B.  a  VOL.  xvn.]    sect.  v.  —  relation  as  to  third  parties.      343 

Ho.  18.  —  AUen  y.  Flood,  1898,  A.  C.  188,  184. 

the  decoy  was  kept  for  purposes  of  pleasure  only,  I  can  see  no 
ground  for  such  a  distinction.  The  defendant  in  firing  upon  his 
own  land  in  such  a  way  as  to  frighten  the  birds  from  the  plain- 
tiflf's  land,  was  either  acting  within  his  own  rights  or  not.  If  he 
was  not,  he  would  surely  be  liable,  whether  the  plaintiff  was 
using  his  land  for  pleasure  or  profit  If  he  was  within  his  rights 
he  would  not  be  liable  in  either  case,  and  I  do  not  see  how  his 
rights  could  depend  on  the  circumstance  that  the  plaintiff  traded 
in  ducks  and  did  not  merely  use  his  decoy  for  purposes  of  sport, 
or  that  he  sold  them,  and  did  not  merely  use  them  for  consump- 
tion by  his  household.  I  cannot  think  that  the  right  of  action 
depended  on  the  circumstance  that  the  plaintiff  traded  in  ducks, 
or  that  there  would  have  been  no  right  of  action,  all  other  circum- 
stances being  the  same,  if  he  had  not  done  so.  The  case  may  be 
supported,  and  the  observation  of  Lord  Holt,  which  has  been 
quoted,  explained  by  the  circumstance  that  if  the  defendant 
merely  fired  on  his  own  land  in  the  ordinary  use  of  it,  his  neigh- 
bour could  make  no  complaint,  whilst,  if  he  was  not  firing  for  any 
legitimate  purpose,  connected  with  the  ordinary  use  of  land,  he 
might  be  held  to  commit  a  nuisance.  In  this  view  of  it  Keeble  v. 
EickeringUl  has,  of  course,  no  bearing  on  the  present  case. 

It  is,  however,  treated  in  their  opinions  by  the  majority  of  the 
learned  Judges  as  establishing  the  wide  and  far-reaching  proposi- 
tion that  every  man  has  a  right  to  pursue  his  trade  or  calling 
without  molestation  or  obstruction,  and  that  any  one  who  by  any 
act,  though  it  be  not  otherwise  imlawful,  molests  or  obstructs  him 
is  guilty  of  a  wrong,  unless  he  can  show  lawful  justification  or 
excuse  for  so  doing. 

*  The  case  of  Keeble  v.  HichermgUl  was  decided  about  \^  134] 
two  centuries  ago,  but  I  cannot  find  that  it  has  ever  been 
treated,  unless  it  be  quite  recently,  as  establishing  the  broad 
general  proposition  alleged.  No  such  proposition  is  to  be  found 
stated,  so  far  as  I  am  aware,  as  the  ground  of  any  decision,  or  in 
any  standard  text-book  of  the  English  law.  In  Smith's  Leading 
Gases,  which  were  selected,  and  the  notes  on  which  were  written, 
by  one  of  the  most  eminent  lawyers  of  his  day,  the  case  of  KceUe 
V.  JBtckeringill  is  not  even  referred  to.  And  the  first  editors  of  the 
work,  after  Mr.  J.  W.  Smith's  death,  Willes  and  Keating,  JJ., 
lawyers  on  whose  eminence  it  is  unnecessary  to  dilate,  equally 
passed  it  by  without  notice.     If  the  view  taken  by  the  majority  of 


344  MASTER  AND  SERVANT. 


Fo.  IS.  —  AUen  t.  Flood,  1896,  A.  C.  184, 186. 


the  learned  Judges  whose  opinions  were  given  at  the  bar  be  cor- 
rect, Keeble  v.  HickeringUl  ought  to  have  been  itself  treated  as  a 
leading  casa 

It  has  not,  as  I  believe,  been  an  authority  on  which  subsequent 
decisions  have  been  based,  except  in  cases  relating  to  the  disturb* 
ance  of  decoys  of  wild  birds.  It  is,  nevertheless,  suggested  by  the 
learned  Judges  that  it  embodies  the  principle  on  which  many  sub- 
sequent cases  have  been  decided,  though  it  was  not  referred  ta 
and  the  Judges  who  pronounced  the  judgments  were  apparently 
unconscious  of  the  authority  they  are  said  to  have  followed. 

It  is  remarkable  that  amongst  these  cases  are  Lumley  v.  Gye, 
2  K  &  B.  216,  and  Bowm  v.  HaH,  6  Q.  B.  D.  333,  which  I  have 
already  discussed.  They  are  said  by  several  of  the  Judges  to  rest 
on  the  principle  established  in  Keehle  v.  nickeringill.  Some  of  the 
Judges,  indeed,  criticise  adversely  the  grounds  upon  which  these 
cases  were  decided,  and  intimate  that  they  can  only  be  supported 
on  the  ground  taken  by  Lord  Holt  in  Keehle  v.  Hickeringill.  That 
case,  however,  was  not  even  cited  by  the  counsel  who  argued 
Lurrdey  v.  Oye  or  Bowen  v.  Hall,  or  by  any  of  the  Judges  who 
decided  them.  If  it  establishes  the  proposition  contended  for,  it 
is  astonishing  that  those  very  learned  and  distinguished  Judges 
were  unaware  of  any  such  legal  proposition,  and  instead 
[*  135]  of  taking  this  short  cut  to  their  *  decision  based  it  upon 
elaborate  reasoning  entirely  unconnected  with  it 

Great  reliance  was  placed  by  the  respondents  on  certain  dicta  of 
Holt,  Ch.  J. ,  in  Keehle  v.  Hickeringill.  That  learned  Judge  is  re- 
ported to  have  said  that  if  a  violent  or  malicious  act  is  done  to  a 
man's  occupation,  profession,  or  way  of  getting  a  livelihood,  an 
action  lies  in  all  cases.  And  he  gives  the  following  illustrations : 
"  If  H.  should  lie  in  the  way  with  guns  and  fright  boys  from  go- 
ing to  school,  and  their  parents  would  not  let  them  go  thither, 
that  schoolmaster  would  have  an  action  for  loss  of  his  scholars. 
A  man  hath  a  market  to  which  he  hath  toll  of  horses  sold,  a  man 
is  bringing  his  horse  to  market  to  sell,  a  stranger  hinders  and  ob- 
structs him  from  going  to  the  market,  an  action  lies,  because  it 
imports  damage.  Again,  an  action  on  the  case  lies  against  one 
that  by  threats  frightens  away  his  tenants  at  will. "  In  all  these 
cases  I  think  the  Chief  Justice  was  referring  to  acts  in  them- 
selves wrongful.  Firing  guns  in  such  a  manner  as  to  terrify  per- 
sons lawfully  passing  along  the  highway  would,  I  take  it,  be 


B.  C.  VOL.  XVII.]      SECT.  V.  — BELATION  AS  TO  THIRD  PARTIES.       345 
Fo.  18.— Alkn  t.  Flood,  1896,  A.  C.  185, 186. 

an  offence.  And  the  other  illustrations  given  import,  I  think, 
that  the  obstruction  and  frightening  were  of  such  a  character  as 
to  be  unlawful,  quite  independently  of  the  motives  which  led  to 
them. 

The  case  of  Carrington  v.  Taylor,  11  East,  571  (11  R  R  270), 
was  also  relied  on  by  the  respondents.  It  is,  I  believe,  the  only 
case  which  has  been  expressly  based  on  Keeble  v.  HickeringUL 
The  plaintiff  there  possessed  an  ancient  decoy,  and  the  defendant 
sought  his  livelihood  by  shooting  wild  fowl  from  a  boat  on  the 
water,  for  which  boat,  with  small  arms,  he  had  a  license  from  the 
Admiralty  for  fishing  and  coasting  along  the  shores  of  Essex. 
The  decoy  was  near  a  salt  creek  where  the  tide  ebbs  and  flows. 
The  only  proof  of  disturbance  of  the  decoy  by  the  defendant  was 
that,  being  in  his  boat  shooting  wild  fowl  in  a  part  of  the  open 
creek,  he  had  fired  his  fowling-piece,  first  within  a  quarter  of  a 
mile  of  the  decoy  and  afterwards  within  two  hundred  yards  of  it, 
and  had  killed  several  widgeons.  The  Judge  left  these  facts  to 
the  jury  as  evidence  of  a  wilful  disturbance  of  the  plaintiff's  decoy 
by  the  defendant  The  jury  returned  a  verdict  for  40«. 
damages,  *  and  the  Court,  on  the  motion  for  a  new  trial,  [*  136] 
refused  to  disturb  the  verdict  They  gave  no  reasons  for 
their  judgment  Unless  a  decoy  possesses  some  peculiar  privileges 
in  the  eye  of  the  law,  I  confess  myself  quite  unable  to  understand 
why  the  defendant  was  liable  to  an  action  or  was  not  within  his 
rights  in  shooting  the  wild  fowl  at  the  place  he  did  for  the  pur- 
pose of  gaining  a  livelihood,  which  is  stated  to  have  been  his 
object  In  any  case,  the  decision  affords  no  support  to  the  con- 
tention now  under  consideration.  For  there  was  no  allegation  that 
the  plaintiff  traded  in  wild  fowl ;  "  great  profits  and  advantages, " 
in  pleader's  language,  might  well  have  accrued  to  him  without  his 
doing  so.  And  there  was  no  proof  that  he  did  so.  Although 
some  of  the  learned  Judges,  who  support  the  judgment  below, 
rely  on  this  case,  one  at  least  thinks  it  bad  law.  The  case  is 
important  as  showing,  as  I  think  it  clearly  does,  that  the  Judges 
of  the  Court  of  King's  Bench  in  1809  did  not  regard  the  judgment 
in  Keeble  v.  Eickeringill  as  founded  on  interference  with  trade  or 
dependent  on  the  presence  of  malice. 

I  turn  now  to  the  other  cases  which  are  relied  on  by  the  learned 
Judges  in  support  of  the  proposition  on  which  they  found  their 
conclusion  in  favour  of  the  respondents,  and  which  are  said  to 


346  MASTER  AND   SERVANT. 

Ko.  13.  —  AUen  v.  Flood,  1896,  A.  C.  186, 187. 

have  been  decided  upon  the  principle  embodied  in  Keeble  v.  Hick- 
eringUl  Amongst  the  earliest  of  these  is  Garret  v.  Taylor,  Cro. 
Jac.  567.  The  declaration  alleged  that  the  plaintifif  was  a  mason, 
and  used  to  sell  stones,  and  employed  workmen  in  his  stone  pit 
"  Al  queux  "  —  I  quote  from  the  fuller  statement  of  the  pleading 
in  2  EoUe's  Eeports,  p.  162  —  "  le  defendant  tantas  et  frequentas 
minas  de  vita  et  de  mutilatione  membrorum  suorum  et  bonorum 
devastatione  per  diversas  sectas  legis  dedit "  whereby  the  plain- 
tiff's workmen  left,  and  he  was  unable  to  obtain  others.  After 
judgment  this  declaration  was  held  to  disclose  a  cause  of  action. 
It  is  suggested  that  it  is  difGicult  to  explain  this  decision  except 
on  the  ground  that  the  law  recognises  in  every  man  a  right  to 
carry  on  his  trade  without  disturbance.     I  am  unable  to  see  the 

difficulty  or  to  think  that  the  decision  rests  on  any 
[*  137]  principle  specially  relating  to  trade.     *  If  the  plaintiff  had 

not  been  a  tradesman,  but  the  owner  of  a  house,  and  the 
same  menaces  had  been  uttered  to  those  who  came  from  time  to 
time  to  visit  him,  I  cannot  but  think  that  he  would  equally  have 
had  a  cause  of  action.  He  would  have  been  affected  prejudicially 
in  the  occupation  and  enjoyment  of  his  property  by  acts  in  them- 
selves wrongful.  Again,  in  Tarleton  v.  M'Gawley,  1  Peake  N. 
P.  C.  270  (3  R  R  689),  a  gun  was  fired  at  a  canoe  coming  to 
the  plaintiff's  ship,  whereby  one  of  the  natives  in  it  was  killed, 
and  80  natives  were  deterred  by  fright  from  approaching  the  ship 
for  the  purpose  of  trading.  It  is  said  that  the  essence  of  the 
wrong  in  this  case  was  that  the  plaintiff  was  disturbed  in  his 
trade.  I  do  not  think  so.  Can  it  be  doubted  that  if  the  ship- 
owner had  desired  the  presence  of  persons  on  board  his  ship  for 
any  other  purpose,  and  the  same  wrongful  act  had  deterred  them 
from  approaching  the  ship,  the  shipowner  might  have  maintained 
a  similar  action  to  recover  damages  for  any  loss  or  inconvenience 
to  which  he  had  been  put  owing  to  the  wrongful  act  of  the 
defendant  ? 

I  will  not  trouble  your  Lordships  by  going  through  all  the  cases 
referred  to.  Speaking  generally,  I  believe  these  actions  would 
equally  have  been  maintainable  if  a  similar  wrongful  act  had 
caused  damage  to,  or  had  affected  the  legal  rights  of,  a  person 
wholly  unconnected  with  trade.  In  all  of  them  the  act  com- 
plained of  was  in  its  nature  wrongful ;  violence,  menaces  of  vio- 
lence, false  statements.     In  none  of  them  was  the  proposition  now 


B.  C.  VOL.  XVIL]      sect.  V.  —  RELATION  AS  TO   THIRD   PARTIES.        347 
Fo.  18.  —  AUm  T.  Flood,  1896,  A.  C.  187, 188. 

contended  for  laid  down  or  hinted  at,  and  they  can  be  supported 
without  resort  to  any  such  principle.  No  doubt  in  some  of  the 
cases  referred  to  the  wrong  was  of  such  a  nature  that  it  is  difficult 
to  imagine  circumstances  in  which  precisely  the  same  wrong  could 
have .  caused  damage  to  a  person  not  in  trade ;  but  the  act  was  not 
wrongful  merely  because  it  afifected  the  man  in  his  trade,  though 
it  was  this  circumstance  which  occasioned  him  loss.  Among  the 
authorities  relied  on  were  those  relating  to  slander  of  a  man  in  the 
way  of  his  trade.  This  action  again  was  traced  to  the  principle 
that  a  man's  trade  must  not  be  interfered  with.  It  is  true  that 
slander  of  a  man  in  the  way  of  his  trade  is  actionable 
without  proof  of  special  *  damage ;  but  whatever  the  slan-  [*  138] 
der,  the  wrong  is  precisely  the  same,  that  defamatory 
words  have  been  uttered.  And  slander  of  a  man  in  the  way  of 
his  office,  if  it  be  an  office  of  profit  or  even  of  dignity,  where  it  is 
one  from  which  the  holder  may  be  removed,  is  actionable  without 
proof  of  special  damage  in  precisely  the  same  way  as  slander  of  a 
man  in  the  way  of  his  trade. 

I  now  proceed  to  consider  on  principle  the  proposition  advanced 
by  the  respondents,  the  alleged  authorities  for  which  I  have  been 
discussing.  I  do  not  doubt  that  every  one  has  a  right  to  pursue 
his  trade  or  employment  without "  molestation  "  or  "  obstruction  * 
if  those  terms  are  used  to  imply  some  act  in  itself  wrongful. 
This  is  only  a  branch  of  a  much  wider  proposition,  namely,  that 
every  one  has  a  right  to  do  any  lawful  act  he  pleases  without 
molestation  or  obstruction.  If  it  be  intended  to  assert  that  an 
act  not  otherwise  wrongful  always  becomes  so  if  it  interferes  with 
another's  trade  or  employment,  and  needs  to  be  excused  or  justi- 
fied, I  say  that  such  a  proposition  in  my  opinion  has  no  solid  foun- 
dation in  reason  to  rest  upon.  A  man's  right  not  to  work  or  not 
to  pursue  a  particular  trade  or  calling,  or  to  determine  when  or 
where  or  with  whom  he  will  work,  is  in  law  a  right  of  precisely 
the  same  nature,  and  entitled  to  just  the  same  protection  as  a 
man's  right  to  trade  or  work.  They  are  but  examples  of  that 
wider  right  of  which  I  have  already  spoken.  That  wider  right 
embraces  also  the  right  of  free  speech.  A  man  has  a  right  to  say 
what  he  pleases,  to  induce,  to  advise,  to  exhort,  to  command, 
provided  he  does  not  slander  or  deceive  or  commit  any  other  of  the 
wrongs  known  to  the  law  of  which  speech  may  be  the  medium. 
Unless  he  is  thus  shown  to  have  abused  his  right,  why  is  he  to  be 


348  MASTER  AND  SERVANT. 


Ko.  lS.~AIlea  v.  Flood,  1896,  A.  C.  188, 180. 


called  upon  to  excuse  or  justify  himself  because  his  words  may 
interfere  with  some  one  else  in  his  calling  ? 

In  the  course  of  the  argument  one  of  your  Lordships  asked  the 
learned  counsel  for  the  respondents  whether,  if  a  butler  on  account 
of  a  quarrel  with  the  cook  told  his  mMter  that  he  would  quit  his 
service  if  the  cook  remained  in  it,  and  the  master  preferring  to 
keep  the  butler  terminated  his  contract  with  the  cook,  the 
[*  139]  latter  could  maintain  an  action  against  the  butler.  *  One 
of  the  learned  Judges  answers  this  question  without  hesi- 
tation in  the  afGirmative.  As  in  his  opinion  the  present  action 
would  lie,  I  think  he  was  logical  in  giving  this  answer.  But 
why,  I  ask,  was  not  the  butler  in  the  supposed  case  entitled  to 
make  his  continuing  in  the  employment  conditional  on  the  cook 
ceasing  to  be  employed  ?  And  if  so,  why  was  he  not  entitled  to 
state  the  terms  on  which  alone  he  would  remain,  and  thus  give 
the  employer  his  choice  ?  Suppose  after  the  quarrel  each  of  the 
servants  made  the  termination  of  the  contract  with  the  other  a 
condition  of  remaining  in  the  master's  service,  and  he  chose  to 
retain  one  of  them,  would  this  choice  of  his  give  the  one  parted 
with  a  good  cause  of  action  against  the  other  ?  In  my  opinion  a 
man  cannot  be  called  upon  to  justify  either  act  or  word  merely 
because  it  interferes  with  another's  trade  or  calling;  any  more 
than  he  is  bound  to  justify  or  excuse  his  act  or  word  under  any 
other  circumstances,  unless  it  be  shown  to  be  in  its  nature  wrong- 
ful, and  thus  to  require  justification. 

The  notion  that  there  may  be  a  difference  in  this  respect  between 
acts  affecting  trade  or  employment  and  other  acts  seeems  to  be 
largely  founded  on  certain  dicta  of  Bo  wen,  L.  J.,  in  the  case  of 
the  Mogul  Steamship  Company,  It  must  be  remembered  that 
these  were  obiter  dicta,  for  the  decision  was  that  the  defendants 
were  not  liable.  The  passage  perhaps  chiefly  relied  upon  is  the 
following :  "  Now  intentionally  to  do  that  which  is  calculated  in 
the  ordinary  course  of  events  to  damage,  and  which  does  in  fact 
damage,  another  in  that  other  person's  property  or  trade  is 
actionable  if  done  without  just  cause  or  excuse.  Such  intentional 
action  when  done  without  just  cause  or  excuse  is  what  the  law 
calls  a  malicious  wrong  (23  Q.  B.  D. ,  at  p.  613).  *  It  will  be 
noted  that  the  learned  Judge  here  makes  no  distinction  between 
acts  which  interfere  with  property  and  those  which  interfere  with 
trade.     For  the  purpose  then  in  hand  the  statement  of  the  law 


B.  C.  VOL.  XVII.]      SECT.  V. — BELATION  AS  TO  THIRD  PAETIES.        349 
Fo.  13.  —  Allen  t.  Flood,  1898,  A.  C.  139-141. 

may  be  accurate  enough,  but  if  it  means  that  a  man  is  bouhd  in 
law  to  justify  or  excuse  every  wilful  act  which  may   damage 
another  in  his  property  or  trade,  then  I  say,  with  all  re- 
spect, the  proposition  is  far  too  wide ;  everything  *  depends  [*  140] 
on  the  nature  of  the  act,  and  whether  it  is  wrongful  or  not 

Whatever  may  be  the  effect  of  the  dicta  of  some  of  the  Judges 
in  the  case  of  Mogul  Stearnship  Co.  v.  McGregor^  23  Q.  B.  D.  598, 
I  regard  it  as  an  authority  supporting  the  appellant's  case.  Cer- 
tain owners  of  ships  formed  an  association  with  the  object  of 
securing  to  themselves  exclusively  a  particular  carrying  trade. 
They  allowed  a  rebate  on  the  freights  to  all  shippers  who  shipped 
only  with  members  of  the  association.  They  also  sent  ships  to 
ports  where  the  plaintifGs  were  endeavouring  to  obtain  cargoes,  to 
carry  at  unremunerative  rates,  in  order  to  secure  the  trade  to 
themselvea  A  circular  was  sent  by  an  agent  of  the  defendants, 
reminding  shippers  at  a  particular  port  that  shipments  for  London 
by  any  of  the  plaintiflfs'  steamers  at  any  of  the  ports  in  China 
would  exclude  the  firm  making  the  shipment  from  participation  in 
the  returns  of  freight  during  the  whole  six-monthly  period  in 
which  they  had  been  made,  even  though  the  firm  elsewhere  might 
have  given  exclusive  support  to  the  steamers  of  the  combination. 
It  was  held  by  this  House  that  the  plaintiffs  had  no  cause  of 
action.  This,  too,  be  it  observed,  though  the  action  was  in  re- 
spect of  a  conspiracy,  what  was  done  being  in  pursuance  of  a  com- 
mon course  of  action  concerted  by  several  shipowners. 

In  that  case  the  very  object  of  the  defendants  was  to  induce 
shippers  to  contract  with  them,  and  not  to  contract  with  the 
plaintiffs,  and  thus  to  benefit  themselves  at  the  expense  of  the 
plaintiffs,  and  to  injure  them  by  preventing  them  from  getting  a 
share  of  the  carrying  trade.  Its  express  object  was  to  molest  and 
interfere  with  the  plaintiffs  in  the  exercise  of  their  trade.  It  was 
said  that  this  was  held  lawful  because  the  law  sanctions  acts 
which  are  done  in  furtherance  of  trade  competition.  I  do  not 
think  the  decision  rests  on  so  narrow  a  basis,  but  rather  on  this, 
that  the  acts  by  which  the  competition  was  pursued  were  all  law- 
ful acts,  that  they  were  acts  not  in  themselves  wrongful,  but  a 
mere  exercise  of  the  right  to  contract  with  whom,  and  when,  and 
imder  what  circumstances  and  upon  what  conditions  they  pleased. 
I  am  aware  of  no  ground  for  saying  that  competition 
*is  regarded  with  special  favour  by  the  law;  at  all  [*141] 


350  MASTER  AND  SERVANT. 

Fo.  12.  —  Alkn  t.  Flood,  188S,  A.  C.  141, 142. 

events,  I  see  no  reason  why  it  should  be  so  regarded.  It  may 
often  press  as  hardly  on  individuals  as  the  defendant's  acts  are 
alleged  to  have  done  in  the  present  case.  But  if  the  alleged  ex- 
ception could  be  established,  why  is  not  the  present  case  within 
it  ?  What  was  the  object  of  the  defendant,  and  the  workmen  he 
represented,  but  to  assist  themselves  in  their  competition  with 
the  shipwrights  ?  A  man  is  entitled  to  take  steps  to  compete  to 
the  best  advantage  in  the  employment  of  his  labour,  and  to  shut 
out,  if  he  can,  what  he  regards  as  unfair  competition,  just  as  much 
as  if  he  was  carrying  on  the  business  of  a  shipowner.  The 
inducement  the  appellant  used  to  further  his  end  was  the  prospect 
that  the  members  of  his  union  would  not  work  in  company  with 
what  they  deemed  unfair  rivals  in  their  calling.  What  is  the 
difference  between  this  case  and  that  of  a  union  of  shipowners 
who  induce  merchants  not  to  enter  into  contracts  with  the  plain- 
tiffs, by  the  prospect  that  if  at  any  time  they  employ  the  plain- 
tiffs' ships  they  will  suffer  the  penalty  of  being  made  to  pay 
higher  charges  than  their  neighbours  at  the  time  when  the  defend- 
ants' ships  alone  visit  the  ports?  In  my  opinion  there  is  no 
difference  in  principle  between  the  two  cases. 

A  further  point  to  which  I  have  not  yet  alluded  was  raised  by 
the  junior  counsel  for  the  respondents  on  the  first  argument  at  the 
bar.  It  was  strenuously  insisted  upon  by  both  learned  counsel  on 
the  occasion  of  the  second  argument  It  was  said  that  the  appel- 
lant had  been  guilty  of  misrepresentation,  which  had  induced  the 
company  to  take  the  course  they  did.  No  such  point  is  to  be 
found  suggested  in  the  pleadings ;  no  such  point  was  raised  at  the 
trial  or  in  the  Court  of  first  instance,  or  until  the  junior  counsel 
for  the  respondents  addressed  your  Lordships.  The  jury  were  not 
asked  whether  there  had  been  a  misrepresentation,  and  have  not 
found  that  this  was  the  case.  It  is  certainly  not  admitted  by  the 
appellant  Under  these  circumstances  it  would,  in  my  opinion, 
be  without  justification  and  contrary  to  precedent  for  your  Lord- 
ships to  attach  any  weight  to  the  point  now.     But  I  think  it  right 

to  add  that  it  does  not  seem  to  me  to  have  been  made  good 
[*  142]  as  a  matter  of  *  fact     It  is  contended,  as  I  imderstand, 

that  the  appellant  represented  that  all  the  iron-workers  in 
the  union  would  leave  if  the  plaintiffs  continued  to  be  employed, 
whereas  some  only  had  said  that  they  would  do  so.  I  think  the 
contention  rests  on  a  misapprehension.     It  is  true  that  some  only 


B.  C.  VOL.  XVIL]        sect.  V.— RELATION  AS  TO   THIRD  PARTIES.        351 
Ko.  18.  —Allen  v.  Flood,  1896,  A.  C.  148, 148. 

appear  tx)  have  said  that  they  would  leave  at  once,  but  I  think 
that  this  referred  to  an  immediate  departure  without  waiting  till 
the  end  of  the  day,  or  at  all  events  without  awaiting  the  result  of 
the  interview  between  the  appellant  and  the  employers.  The 
witness  Elliot,  whose  evidence  is  relied  on,  himself  says  that  "  the 
chaps  "  were  dissatisfied,  and  that  there  was  only  one  way  of  set- 
tling it,  and  that  was  in  accordance  with  the  wishes  of  their  men, 
these  wishes  being  that  the  plaintiffs  should  not  be  continued  upon 
work  in  the  same  ship.  Even  if  a  misrepresentation  by  the  appel- 
lant to  the  Glengall  Company  would  be  suflacient  in  any  circum- 
stances to  afford  a  right  of  action  to  the  plaintiffs,  I  think  it  could 
scarcely  be  contended  that  it  could  do  so,  unless  the  misrepresen- 
tation were  wilful  and  intentional.  Of  this  there  is,  in  my 
opinion,  not  a  tittle  of  evidence.  The  appellant  may  well  have 
believed  from  the  statements  made  to  him,  that  if  the  plaintiffs 
continued  to  work  in  the  ship,  all  the  ironworkers  would  cease  to 
work.  On  the  evidence  I  should  come  without  hesitation  to  the 
conclusion  that  they  would  have  done  so. 

For  the  reasons  I  have  given  I  think  the  judgment  should  be 
reversed,  and  judgment  entered  in  the  action  for  the  defendant 
with  costs. 

I  have  only  very  recently  had  the  opportunity  of  knowing  the 
views  entertained  by  my  noble  and  learned  friend  on  the  woolsack 
with  regard  to  this  case.  In  consequence  of  them,  I  think  it  right 
to  add  the  following  observations.  I  am  not  behind  my  noble  and 
learned  friend  in  the  desire  to  preserve  individual  liberty.  But  I 
think  it  is  never  in  greater  danger  than  when  a  tribunal  is  urged 
to  restrict  liberty  of  action  because  the  manner  in  which  it  has 
been  exercised  in  a  particular  instance  may  be  distasteful. 

I  am  unable  to  regard  as  altogether  accurate  the  statement  of 
my  noble  and  learned  friend  that  up  to  the  period  when 
this  *  case  reached  your  Lordships'  House  there  was  a  [*  143] 
unanimous  consensus  of  opinion.  I  think  he  has  over- 
looked the  following  facts.  When  the  Court  of  Appeal  in  Bowen 
V.  Hall,  6  Q.  B.  D.  333,  held  that  an  action  lay  for  maliciously 
inducing  another  to  break  his  contract,  the  late  Lord  Chief  Jus- 
tice, differing  from  his  two  colleagues,  was  of  opinion  that  even 
in  such  a  case  an  action  could  not  be  maintained.  When  in 
Temperton  v.  Russell  [1893],  1  Q.  B.  715,  Lord  Esher  and  Lopes, 
L  J. ,  carried  the  doctrine  further,  and  held  that  an  action  would 


352  MASTER  AND  SERYAITT. 


Nos.  10-12.  —  LunlBy  t.  Cfyo ;  Bow«i  t.  Hall;  Alton  t.  Flood.  —  KotM. 

lie  for  maliciously  inducing  another  not  to  enter  into  a  contract, 
A.  L.  Smith,  L.  J.,  notwithstanding  the  strong  expression  of 
opinion  by  those  learned  Judges,  significantly  reserved  his  own 
opinion  on  the  point  And  when  in  the  present  case  Lord  Eshee 
and  Lopes,  L.  J.,  reafl&rmed  the  opinions  they  had  previously 
pronounced,  Kigby,  L.  J. ,  only  concurred  in  the  judgment  under 
appeal  in  deference  to  the  opinions  expressed  in  the  previous  case. 

In  my  opinion  the  conclusion  at  which  I  have  arrived  is  not  in 
conflict  with  any  decision  or  even  with  the  pronounced  opinions 
of  any  Judges  except  those  enunciated  in  the  recent  cases  now 
under  review.  On  the  contrary,  I  believe  with  all  deference  to 
my  noble  and  learned  friend  on  the  woolsack  that  any  other  con- 
clusion would  run  counter  to  principles  of  the  common  law  which 
have  been  long  well  established. 

I  regret  to  have  trespassed  so  long  on  your  Lordships'  time. 
My  excuse  must  be  that  I  regard  the  decision  under  appeal  as  one 
absolutely  novel,  and  which  can  only  be  supported  by  affirming 
propositions  far-reaching  in  their  consequences  and  in  my  opinion 

dangerous  and  unsound. 
[181]        Order  of  the  Court  of  Appeal  reversed  and  judgment  en* 
tered  for  the  appellant  with  costs  here  and  below,  in- 
eluding  the  costs  of  the   trial;  cause  remitted  to   the 
Qtieen*8  Bench  Division, 

Lords'  Journals,  December  14,  1897. 

ENGLISH  NOTES. 

Allen  V.  Moody  the  third  principal  case,  may  be  classed  among  those 
decisions,  the  sequel  of  which  it  is  impossible  to  anticipate.  It  may 
mark  the  starting-point  of  a  modem  development,  or  simply  indicate 
the  limits  of  the  older  law. 

The  case  of  Allen  v.  Flood  in  part  confirms  the  nisi  prius  ruling  of 
Lord  Kenton,  Ch.  J.,  in  Nichol  v.  MaHyn  (1799),  2  Esp.  732,  6  R.  K 
770,  that  it  is  not  actionable  to  induce  a  servant  to  leave  at  the  expirar 
tion  of  his  term  of  service. 

In  &ykes  v.  Dixon  (1839),  9  Ad.  &  Ell.  693, 1  Per.  &  D.  463,  the 
servant  had  signed  a  memorandum  which  only  contained  the  stipula- 
tions on  his  part  with  the  master.  The  agreement  was  unenforceable 
by  reason  of  section  4  of  the  Statute  of  Frauds  (29  Car.  II.,  c  3).  A 
third  person  was  held  not  to  be  guilty  of  harbouring  the  person  who, 
as  the  plaintiff  alleged,  had  quitted  his  service  without  proper  notice. 
The  Court  there  distinguished  the  case  of  Keane  v.  Boycott  (1796X 


B.  C.  VOL.  XVII.]        SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.       353 
Foi.  lO-lS.  -^  Lnmloy  v.  Oyo ;  Bowen  v.  Hall ;  Allen  v.  Plood.  —  KotM. 


2  H.  Bl.  511,  3  R.  R.  494,  where  a  recruiting  officer  was  held  liable  for 
enticing  away  a  negro  apprentice.  In  Bird  v.  Randall  (1762),  3  Burr. 
1345,  1  W.  Bl.  373,  387,  the  master  and  the  servant  had  bound  them- 
selves in  a  penalty  to  perform  an  agreement  for  service  and  employ- 
ment. Within  the  stipulated  period  of  service  the  defendant  enticed 
the  servant  to  break  the  agreement.  The  master  then  sued  the  servant 
for  the  penalty  stipulated  by  the  agreement,  and  recovered  the  whole 
as  damages.  The  master  then  commenced  the  action  {Bird  v.  Randall) 
for  enticing  the  servant,  and  during  the  pendency  of  that  action  received 
satisfaction  under  his  judgment  against  the  servant.  It  was  held  that 
the  proceedings  against  the  third  party  were  not  further  maintainable. 
The  measure  of  damages  is  not  to  be  limited  to  the  actual  loss  the 
employer  sustained  at  the  time  when  the  servant  was  enticed  away,  but 
is  to  include  full  compensation  for  the  injury  done  to  him  by  causing 
the  servant  to  leave  his  employment.  Gunter  v.  Astor  (1819),  4  Moore, 
12,  21  R.  R.  733. 

AMERICAN  NOTES. 

See  notes,  antey  vol.  i.  p.  728. 

In  Angle  v.  Chicago^  Sfc,  R.  Co.,  151  United  States,  1,  it  is  said,  following 
the  English  cases  of  Lumley  v.  Gye,  2  E.  &  B.  216,  and  Batoen  v.  Hall,  6  Q.  B. 
Div.  333,  that  if  one  maliciously  interferes  in  a  contract  between  two  parties, 
and  induces  one  of  them  to  break  that  contract,  to  the  injury  of  the  other,  the 
party  injured  can  maintain  an  action  against  the  interferer.  But  in  two  recent 
cases  in  Kentucky,  Chambers  v.  Baldwin,  91  Kentucky,  121  (34  Am.  St.  Rep.  165), 
and  Bourlier  v.  Macauley,  91  Kentucky,  135  (34  Am.  St.  Rep.  171 ;  11  Law- 
yers' Rep.  Annotated,  550),  the  English  cases  are  disapproved,  and  it  is  held 
that  an  action  cannot  in  general  be  maintained  for  inducing  a  third  person  to 
break  his  contract  with  the  plaintiff,  even  if  it  be  alleged  that  the  defendant's 
interference  was  malicious.  The  only  exceptions  were  declared  to  be  where 
apprentices,  menial  servants,  and  others  whose  sole  means  of  living  was  by 
manual  labor,  are  enticed  to  leave  th^r  employment,  or  where  a  person  has 
been  procured,  against  his  will  or  contrary  to  his  purpose,  by  coercion  or 
deception  of  another  to  break  his  contract. 

To  maintain  an  action  for  enticing  away  a  servant,  it  must  be  shown  that 
there  was  an  existing  obligation  to  render  service.  Peters  v.  Lord,  18  Con- 
necticut, 337;  BtUierfield  v.  Ashley,  2  Gray  (Mass.),  256;  Campbell  v.  Cooper, 
34  New  Hampshire,  49 ;  Caughey  v.  Smith,  47  New  York,  244.  To  induce 
a  servant  to  leave  when  his  time  of  service  shall  expire  is  not  actionable, 
although  he  may  not  have  intended  to  quit  the  service.  Boston  Glass  Manuf, 
V.  Binney,  4  Pickering  (Mass.),  425. 

In  Raycroft  v.  Tayntor,  68  Vermont,  219 ;  54  Am.  St.  Rep.  882 ;  33  Law- 
yers' Rep.  Annotated,  225,  it  was  held  that  if  A.,  in  the  exercise  of  a  lawful 
right,  threatens  to  terminate  a  contract  between  himself  and  B.,  unless  the 
latter  discharges  a  certain  employee,  not  engaged  for  any  definite  term,  the 
VOL.  XVII.  —  23 


354  MASTER  AND  SERVANT. 

Not.  10-18. — LunlBy  t.  Gjre ;  Bowen  v.  Hall ;  Alton  v.  Flood.  — Fotet. 

latter  is  without  remedy  against  A.  although  his  motive  was  malioions. 
The  Court  said:  ''The  authorities  cited  for  the  plaintiff  clearly  establish 
that  if  the  defendant,  without  having  any  lawful  right,  or  by  an  act,  or 
threat  aliunde  the  exercise  of  a  lawful  rights  had  broken  up  the  contract  rela- 
tion existing  between  the  plaintiff  and  Libersont,  maliciously  or  unlawfully, 
although  such  relation  could  be  terminated  at  the  pleasure  of  either,  and 
damage  had  thereby  been  occasioned,  the  party  damaged  could  have  main- 
tained an  action  against  the  defendant  therefor.  But  the  same  authorities 
clearly  establish  that  if  the  defendant's  act,  or  threatened  act,  was  one  which, 
in  his  relation  to  the  property  and  parties,  he  had  a  lawful  right  to  perform, 
unless  it  involved  a  superior  right  of  the  plaintiff,  it  gave  the  plaintiff  no  right 
of  action,  though  it  occasioned  a  loss  to  him  and  was  actuated  by  a  desire  to 
injure." 

"  So  too  in  Chyiley  v.  Atkinson^  23  Florida,  206 ;  11  Am.  St.  Rep.  367,  it  is 
said :  *  Where  one  does  an  act  which  is  legal  in  itself,  and  violates  no  right 
of  another  person,  it  is  true  that  the  fact  that  the  act  is  done  from  malice  or 
other  bad  motive  toward  another  does  not  give  the  latter  a  right  of  action 
against  the  former.  Though  there  be  loss  or  damage  resulting  to  the  other 
from  the  act,  and  the  doer  was  prompted  to  it  solely  by  malice,  yet  if  the  act 
be  legal  and  violates  no  legal  right  of  the  other  person,  there  is  no  right  of 
action.'  In  support  of  this  doctrine  a  large  number  of  decisions  are  cited, 
and  among  them  Chatfield  v.  Wilson,  28  Vermont,  49;  South  RoyaUon  Bank  v. 
Suffolk  Bank,  27  Vermont,  505 ;  Earwood  v.  Benton,  32  Vermont,  724. 

"  William  L.  Hodge,  in  January  and  February  numbers  of  'American  Law 
Review,'  in  an  article  on  *  Wrongful  interference  by  third  parties  with  the 
rights  of  employees  and  employed,'  reviews  a  great  number  of  cases,  and  on 
page  54  says :  '  So  also  it  is  said,  and  there  are  indeed  many  authorities  which 
appear  to  hold,  that  to  constitute  an  actionable  wrong,  there  must  be  a  viola- 
tion of  some  definite  legal  right  of  the  plaintiff.  But  these  are  cases  for  the 
most  part,  at  least,  where  the  defendants  were  themselves  acting  in  the  lawful 
exercise  of  some  distinct  right  which  furnished  the  defence  of  a  justifiable 
cause  for  their  acts  except  so  far  as  they  are  in  violation  of  a  superior  right 
in  another.  Therefore  if  the  defendant's  act  be  (1)  legal  in  itself,  and  (2)  vio- 
lates no  superior  right  in  another,  it  is  not  actionable,  although  it  be  done 
maliciously  and  cause  damage  to  that  other.'  " 

In  Boysen  v.  Thorn,  98  California,  678 ;  21  Lawyers'  Rep.  Annotated,  283, 
it  was  held  that  maliciously  inducing  another  to  break  a  contract  with  a  third 
person  will  not  create  a  liability  to  the  latter  when  done  without  threats, 
violence,  fraud,  falsehood,  deception,  or  benefit  to  the  person  inducing  the 
breach.  This  was  a  contract  of  boarding  at  a  hotel,  and  the  case  came  up  on 
demurrer.  The  Court  said  the  complaint  did  not  bring  the  case  within  the 
principle  governing  the  relation  of  master  and  servant,  and  noticed  Lumley  v. 
Gye  and  Bowen  v.  Hall,  and  cited  Payne  v.  Western  Sf  A.  R.  Co,,  13  Lea 
(Tennessee),  507. 

In  Morgan  v.  Andrews,  107  Michigan,  38,  it  was  held  that  maliciously  and 
by  falsehood  and  deceit  to  induce  one  to  induce  a  purchaser  to  break  his  con- 
tract with  a  seller,  is  actionable;  citing  Benton  v.  Pratt,  2  Wendell  (N.  Y.)» 


B.  C.  VOL.  XVn.]        SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        355 

Hot.  10-18.  —  Lnmley  v.  Qjb  ;  Bowen  t.  Hall ;  AUan  t.  Flood.  —  Notoi. 

385 ;  20  Am.  Dec.  623 ;  Rice  y.  Manley,  66  New  York,  82 ;  23  Am.  Rep.  230; 
and  ChipLey  v.  Atkinson^  supra. 

In  Perkins  y.  Pendleton,  90  Maine,  166;  60  Am.  St.  Rep.  252,  it  was  held 
that  one  is  liable  in  damages  for  inducing,  maliciously  and  by  threats,  fraud, 
or  intimidation,  an  employer  to  discharge  his  employee,  even  when  by  the 
terms  of  the  hiring  the  employer  is  at  liberty  to  discbarge  him  at  his  pleasure. 
The  Court  examined  all  the  leading  cases  hereinbefore  mentioned,  both  English 
and  American,  and  distinguished  the  Vermont  case  on  the  ground  that  the 
threat  there  was  to  do  what  the  defendant  had  an  undoubted  right  to  do, 
namely,  to  terminate  a  contract  of  his  own  with  the  employer.  The  Court 
concluded :  — 

<'  Our  conclusion  is,  that  wherever  a  person,  by  means  of  fraud  or  intimi- 
dation, procures  either  the  breach  of  a  contract  or  the  discharge  of  a  plaintiff 
from  an  employment,  which  but  for  such  wrongful  interference  would  have 
continued,  he  is  liable  in  damages  for  such  injuries  as  naturally  result  there- 
from ;  and  that  the  rule  is  the  same  whether  by  these  wrongfxd  means  a 
contract  of  employment  as  to  time  is  broken,  or  an  employer  is  induced, 
Bolely  by  reason  of  such  procurement,  to  discharge  an  employee  whom  he 
would  otherwise  have  retained.  Merely  to  induce  another  to  leave  an  em- 
ployment or  to  discharge  an  employee,  by  persuasion  or  argument,  however 
whimsical,  unreasonable,  or  absurd,  is  not  in  and  of  itself  unlawful,  and  we  do 
not  decide  that  such  interference  may  become  unlawful  by  reason  of  the  defend- 
ant's malicious  motives,  but  simply  that  to  intimidate  an  employer,  by  threats, 
if  the  threats  are  of  such  a  character  as  to  produce  this  result,  and  thereby 
cause  him  to  discharge  an  employee,  whom  he  desired  to  retain  and  would 
have  retained,  except  for  such  unlawful  threats,  is  an  actionable  wrong." 
So  in  Noice  v.  Brown,  39  New  Jersey  Law,  133,  an  action  for  seduction,  the 
Court  said :  ^'  It  is  well  settled  that  a  person  who,  knowing  the  premises, 
entices  another  to  break  a  subsisting  contract  of  service,  is  liable  to  an  action 
for  the  damages  which  ensue  to  the  employer.  Whether  an  action  will  lie, 
where  there  is  no  binding  contract  to  continue  in  service,  is  not  so  clear,  but 
I  think  it  may  be  maintained,  both  upon  reason  and  authority,  where  it  is 
merely  a  subsisting  service  at  wiU.  Where  the  service  is  merely  at  wiU,  all 
the  liabilities  and  rights  existing  between  master  and  servant  attach  to  the. 
relation.  The  master  is  liable  for  the  negligence  of  the  servant,  and  may 
exercise  his  right  to  defend  him.  In  such  service,  like  a  tenancy  at  will,  the 
relation  must  be  ended  in  some  way,  before  the  rights  of  the  master  can  be 
lost.  By  the  unwarrantable  interference  of  a  third  party,  the  employer  is 
deprived  of  what  he  otherwise  might  have  retained." 

In  Land  jr  G,  Co.  v.  Commission  Co,,  138  Missouri,  439,  Lwnley  v.  Qye, 
Bowen  v.  Hall,  and  Walker  v.  Cronin  are  cited,  but  the  Court  hold  that  except 
in  the  case  of  the  relation  of  master  and  servant  the  action  in  question  cannot 
be  maintained,  and  that  no  action  can  be  maintained  for  inducing  a  carrier 
to  break  its  contract  to  carry  freight :  "  To  hold  that  a  carrier  is  the  servant 
or  employee  of  the  shipper  would  revolutionize  the  whole  law  relating  to  the 
duties,  obligations,  and  liabilities  of  common  carriers." 

Judge  CooLET  (Torts,  *497)  says :  "  An  action  cannot  in  general  be  main- 


356  MASTER  AND   SEEVANT. 

Hot.  10-12.  —  LunlBy  v.  Gyo  ;  Bow«i  v.  Hall;  Alton  v.  Flood.  —  FotM. 

tained  for  inducing  a  third  person  to  break  his  contract  with  the  plaintiff ; 
the  consequence  after  all  being  only  a  broken  contract,  for  which  the  party 
to  the  contract  may  have  his  remedy  by  suing  upon  it."  Mr.  Bigelow  (Torts, 
p.  80)  cites  the  English  cases  and  Walker  y.  Cronin,  and  commits  himself  to 
their  doctrine. 

In  Chipley  v.  Atkinson^  supra,  Lumley  v.  Gye,  Bowen  v.  Hally  and  Walker  v. 
Cronin  are  cited,  the  Court  said :  '<  The  chain  of  reasoning  set  forth  in 
Bowen  v.  Holly  supra,  would  support  an  action  in  behalf  of  an  employee  against 
a  third  party  maliciously  procuring  his  employer  to  discharge  him  from  em- 
ployment under  a  legal  contract  for  a  certain  period,  pending  such  period.  The 
principle  applied  is  as  applicable  in  behalf  of  an  employee  as  in  behalf  of  an 
employer  so  injured  through  the  malicious  interference  of  the  third  person. 
Whether  however  the  same  principles  are  applicable  when  the  terms  of  con* 
tract  or  service  are  such  that  the  employer  may  terminate  them  at  his  pleasure, 
without  violating  any  legal  right  of  the  employee,  is  a  question  of  more  intri- 
cacy." ''  It  is  the  legal  right  of  the  party  to  such  agreement  to  terminate  or 
refuse  to  perform  it,  and  in  doing  so  he  violates  no  right  of  the  other  party  to  it ; 
but  so  long  as  the  other  party  is  willing  and  ready  to  perform  it,  it  is  not  the 
legal  right,  but  is  a  wrong  on  the  part  of  a  third  party  to  maliciously  or  wan- 
tonly procure  the  former  to  terminate  or  refuse  to  perform  it."  This  was 
however  obiter,  for  the  decision  went  on  the  ground  that  there  was  no  proof 
of  discharge  of  the  plaintiff  from  the  employment. 

The  same  three  cases  and  Haskins  v.  Royster,  70  North  Carolina,  601,  are 
cited  in  Angle  v.  Chicago,  ^c.  Ry.  Co.,  151  United  States,  13,  and  their  doc- 
trine  admitted,  but  the  decision  steered  clear  of  it. 

An  action  lies  by  a  servant  against  one  who  has  unlawfully  procured  his 
discharge  from  employment.  Lucke  v.  Clothing,  Sfc.  Assembly,  77  Maryland, 
896 ;  39  Am.  St.  Rep.  421,  citing  Lumley  v.  Gye  and  Botoen  v.  HaU,  But 
there  a  new  trial  was  awarded  because  the  declaration  varied  from  the  proofs. 

An  action  lies  by  a  father  against  one  who  fraudulently  obtains  his  consent 
to  a  void  marriage  with  his  infant  daughter.  Lawyer  v.  Fritcher,  130  New 
York,  239 ;  14  Lawyers'  Rep.  Annotated,  700. 

An  action  lies  against  one  who  maliciously  threatens  to  discharge  his  em- 
ployees if  they  patronize  plaintiff.  Graham  v.  St,  Charles  S.  R.  Co.,  47  Louisi- 
ana Annual,  214;  49  Am.  St.  Rep.  366. 

The  feature  of  conspiracy  is  eliminated  from  the  foregoing  examination. 
It  is  generally  held  here  that  a  conspiracy  to  induce  a  servant  to  break  his 
contract  of  service,  or  a  master  to  break  his  contract  of  employment,  renders 
the  conspirators  liable  in  damages  to  the  employer  or  employee.  Curran  v. 
Galen,  152  New  York,  33 ;  67  Am.  St.  Rep.  496. 


R.  C.  VOL.  XVn.]       SECT.  V. — BELATION  AS  TO  THIRD  PARTIES.      357 
FOb  18.  —  Kaavell  v.  Thomioo,  9  Car.  &  P.  808,  804.  — Enle. 

No.  13.  — MANVELL  v.  THOMSON. 
(N.  P.  1826.) 

No.  14  — EAGER  v.  GRIMWOOD. 
(EX.  1847.) 

RULE. 

Ik  order  to  maintain  an  action  for  seduction,  it  is  not 
necessary  that  the  relation  of  master  and  servant  should 
be  strictly  proved.  But  the  plaintiff  must  show  some 
right  to  the  services  of  the  person  seduced  at  the  date  of 
the  seduction,  and  some  loss  of  service  consequent  thereon. 

Hanvell  v.  Thomson. 

2  Car.  &  P.  303,  304  (31  B.  B.  666). 

AcHon  for  Seduction.  — Loss  of  Service. 

In  trespass  for  seduciDg  the  plaintiff's  niece  and  servant,  per  quod  [803] 
servitium  amisit;  evidence  that  the  party  seduced  (being  about  sixteen 
years  of  age)  occasionally  assisted  in  the  household  work,  no  servant  being  kept 
in  the  family,  is  sufficient  to  constitute  the  relation  of  master  and  servant  between 
the  uncle  and  niece;  and  such  relation  is  not  destroyed  by  the  circumstance 
of  the  niece's  being  entitled,  on  her  coming  of  age,  to  a  sum  of  nearly  £500,  of 
which  the  interest  is  applied  in  the  mean  time  for  her  benefit. 

Proof  in  such  case  that  the  niece,  after  her  seduction  and  abandonment  by 
the  defendant,  returned  to  her  uncle's  house,  where  she  continued  some  time  in  a 
state  of  great  agitation,  and  received  medical  attendance,  and  was  obliged  to 
be  watched,  lest  she  should  do  herself  some  injury,  is  sufficient  to  raise  the 
presumption  of  that  loss  of  service  by  the  uncle  which  is  necessary  to  maintain 
the  action. 

Trespass  for  toducing  the  plaintiff's  niece  and  servant 
The  plaintiff  was  a  ticket-porter,  and  his  niece,  the  subject  of 
the  action,  was  a  girl  of  about  sixteen  years  of  age,  whose  parents 
had  been  dead  some  years.     A  sum  of  nearly  £500  a-piece 
was  left  by  her  parents  to  herself  *  and  her  brothers  and  [*  304] 
sisters,  which  was  deposited  in  the  bank  till  they  should 
come  of  age.     She  was  brought  up  at  her  uncle's,  and  was  for 
some  time  out  at  service,  but  returned  to  her  uncle's  house  pre- 
viously to  the  time  when  she  was  debauched  by  the  defendant 


358  MASTER  AND  SERVANT. 


Fo.  14.  —  Eager  v.  Orimwood,  1  Xzeh.  61. 


It  appeared  that  while  she  was  at  her  uncle's,  who  had  several 
children,  she  assisted  them  in  the  domestic  business  of  the  house, 
as  they  kept  no  regular  servant 

Denman,  for  the  defendant :  — 

The  action  is  not  maintainable :  the  evidence  of  service  is  too 
slight  The  presumption  of  her  being  a  servant  to  her  uncle  is 
rebutted  by  the  fact  of  her  having  so  large  a  sum  of  money ;  and 
the  relation  of  uncle  and  niece  is  not  of  itself  sufficient 

Abbott,  Ch.  J.  :  — 

Certainly  the  relation  of  uncle  and  niece  of  itself  will  not  do ; 
but  I  think  there  is  enough  in  the  evidence  to  constitute  the  rela- 
tion of  master  and  servant  Suppose  a  son  has  money  enough  to 
find  himself  in  clothes,  the  relation  of  father  and  son  is  not  de- 
stroyed by  that  circumstance.  In  this  case,  the  uncle  is  in  loco 
parentis.  The  smallest  degree  of  service  will  do.  It  seems  there 
was  no  servant  kept ;  and  it  is  reasonable  to  conclude  that  all  the 
members  of  the  family  assisted  in  turn  in  the  performance  of  the 
household  work. 

The  cousin  of  the  girl,  and  a  surgeon,  proved,  that  when  she 
returned  to  her  uncle's  house,  after  she  had  been  seduced  and 
abandoned  by  the  defendant,  she  was  in  a  state  of  very  great  agita- 
tion, and  continued  so  for  some  time ;  that  she  received  medical 
attendance,  and  was  obliged  to  be  watched,  lest  she  should  do 
herself  some  injury.  This  was  taken  ss  evidence  raising  the  pre- 
sumption of  loss  of  service  by  the  uncle ;  and  he  had  a 

Verdict     Damages  £400. 

Eager  v.  Orimwood. 

1  Exch.  61-64  (8.  G.  16  L.  J.  Ex.  236). 

Action  for  Seduction,  —  Proof  of  Service. 

[61]  An  action  for  seduction  cannot  be  maintained  without  some  proof  of 
loss  of  service  thereby ;  therefore,  where  it  appeared  that  the  defendant 
had  debauched  the  plaintiff's  daughter,  and  that  she  was  delivered  of  a  child, 
but  the  jury  found  that  the  child  was  not  the  defendant's :  Hdd,  that  the  jury 
were  rightly  directed  to  find  a  verdict  for  the  defendant. 

Trespass  for  assaulting  and  debauching  the  daughter  and  servant 
of  the  plaintiff,  whereby  she  then  became  pregnant,  &c. ,  and  the 
plaintiff  lost  and  was  deprived  of  her  services.     Plea,  not  guilty. 

At  the  trial  before  Pollock,  C.  B.  ,  at  the  London  sittings  after 


K.  C.  VOL.  XVIL]       sect.  V. — EELATION  AS  TO   THIRD   PARTIES.       359 
Ho.  14.  — Eager  y.  Gzimvood,  1  Ezoh.  61,  68. 

last  Michaelmas  Term,  the  following  facts  appeared:  The  con- 
nection between  the  defendant  and  the  plaintiff's  daughter  took 
place  for  the  first  time  two  days  after  Christmas-day,  1844.  In 
June,  1845,  the  plaintiff's  daughter  gave  birth  to  a  child,  which, 
according  to  the  evidence  of  a  surgeon,  was  a  full-grown  child. 
It  also  appeared  that  the  plaintiff  had  been  put  to  some  expense  in 
consequence  of  his  daughter's  illness.  The  learned  Chief  Baron 
left  it  to  the  jury  to  say  whether  or  no  the  defendant  was  the 
fatfler  of  the  child ;  and  he  told  them  that  if  they  believed  he  was 
not  the  father  of  the  child,  they  should  find  a  verdict  for  him. 
The  jury  having  found  for  the  defendant, 

Prentice  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground  of 
misdirection ;  against  which 

Humfrey  showed  cause.  — The  question  is,  whether  mere  crim- 
inal knowledge,  unattended  with  loss  of  service  or  pecuniary 
damage,  gives  the  master  a  right  of  action  against  the  seducer.  It 
is  submitted  that  it  does  not,  and  that  there  is  no  foundation  for 
the  action,  unless  the  master  sustains  some  loss  of  service  by 
reason  of  the  seduction.  If  it  were  not  so,  he  would  have  a  right 
of  action  for  any  slight  blow  which  resulted  in  no  injury  what- 
ever to  the  servant.  [Alderson,  B.  —  If  we  were  to  hold,  in  this 
case,  that  there  was  a  loss  of  service,  it  would  be  difficult  to  say 
where  it  would  stop ;  for  instance,  if  a  servant  took  a  walk 
against  *  the  orders  of  her  master,  that  would  amount  to  a  [*  62] 
loss  of  service.]  In  Selwyn's  Nisi  Prius,  tit  *  Master  and 
Servant,  *  p.  1103,  there  is  the  following  note :  "  Although  the 
daughter  cannot  have  an  action,  yet  the  father  may,  not  for 
assaulting  his  daughter,  and  getting  her  with  child,  because  this 
is  a  wrong  particularly  done  to  her,  yet  for  the  loss  of  her  service, 
caused  by  this.  Per  Rollb,  Ch.  J.,  Norton  v.  Jason,  Sty.  398." 
[RoLFE,  B. — In  that  case  Rollb,  Ch.  J.,  says:  "But  for  the 
other  point,  the  cause  of  action  is  per  quod  servitium.  amisit,  and 
for  this  he  hath  brought  it  within  the  time  limited  by  the  statute ; 
for  it  is  an  action  upon  the  case,  although  the  causa  eausans  is  the 
vi  et  armis,  which  is  but  inducement  to  the  action,  and  the  causa 
eausata,  viz.,  the  loss  of  service,  is  the  ground  of  the  action.*] 
The  seduction  is  not  a  trespass,  unless  it  result  in  a  loss  of  service. 
A  master  might  maintain  an  action  for  striking  his  servant,  per 
guod  he  was  deprived  of  her  services;  but  if  the  per  quod  were 
omitted,  the  declaration  would  be  bad.     [Platt,  B.  —  In  Cham- 


360  MASTER  AND  SEBVANT. 

Ho.  14.  —  Eager  y.  Grimwood,  1  Ezoh.  82,  68. 

herlain  v.  Hadewood,  5  M.  &  W.  515,  9  L.  J.  (N.  S.)  Ex.  87, 
it  was  held  that  an  action  for  seducing  the  daughter  and  servant 
of  the  plaintiff  might  be  brought  either  in  trespass  for  the  direct 
injury,  per  qvA)d  servitium  amisit,  or  in  case  for  the  consequential 
damage.  Trespass  is  the  form  usually  adopted.  Ditcham  v. 
£o7id,  2  M.  &  S.  436  (14  E.  R  837) ;  Torrence  v.  Gibbins,  5  Q.  R 
297,  13  L.  J.  Q.  B.  36.]  It  is  a  trespass  on  the  servant,  of  which 
the  master  cannot  complain,  unless  it  causes  him  some  loss  of  ser« 
vice.  In  the  present  case  there  was  no  loss  of  service  occasioned 
by  the  act  of  the  defendant,  as  he  was  not  the  father  of  the 
child. 

Prentice,  in  support  of  the  rule.  —  When  the  service  is  once 
established,  the  law  presumes  some  loss  to  the  master  by  reason  of 

the  assault     The  declaration  would  be  good,  if  it  merely 
[*  63]  stated   that  the  defendant  assaulted  and  debauched  *  the 

plaintiff's  servant,  for  in  such  case  the  law  would  imply  a 
nominal  damage.  The  damage  alleged  in  this  declaration  is  either 
special  or  consequential  damage;  if  the  former,  not  being  trav- 
ersed, it  is  admitted  on  the  record.  Torrence  v.  Giblins,  5  Q.  B. 
297,  13  L.  J.  Q.  B.  36.  [Alderson,  B.  —Upon  the  plea  of  not 
guilty,  if  it  appeared  that  the  party  seduced  was  in  the  service  of 
a  third  person,  according  to  your  argument,  the  plaintiff  would 
be  entitled  to  a  verdict]  To  an  action  of  this  kind  the  defendant 
could  not  plead  that  the  plaintiff  had  not  sustained  any  damage  by 
the  assault  In  Viner's  Abridgment,  tit  "  Trespass  "  (L.  6),  pi. 
7,  it  is  said :  "  In  trespass  of  battery  of  his  servant,  per  quod  servi- 
tium 8uum  amisit,  &c.,  it  is  no  plea  that  non  amisit  servitium 
servientis  prcedicti,  for  by  this  the  battery  is  confessed,  and  then 
the  law  implies  that  the  master  is  damnified.  But  it  is  a  good 
plea  that  he  was  not  his  servant  at  the  time.  Br.  *  Traverse,  *  per, 
&c.,  pi.  378,  cites  31  Hen.  VI."  [Pollock,  C.  B.  —In  the  next 
paragraph  it  is  said,  "  The  master  shall  not  have  trespass  of  battery 
of  his  servant,  if  he  does  not  say  per  quod  servitium  servientis  sui 
amisit,"  &c.  You  must  contend,  that  if  the  injury  produces 
nothing  but  pain,  both  master  and  servant  may  maintain  the  ac- 
tion.] Damage  is  presumed  to  have  been  sustained,  whenever  an 
injury  is  done  to  the  right  of  a  party.  Fay  v.  Prentice,  1  C.  B. 
828.  The  debauching  of  the  plaintiff's  servant  is  an  act  of  tres- 
pass, Woodward  v.  Walton,  2  Bos.  &  P.  (N.  R)  476,  and  an 
invasion  of  the  legal  right  of  the   plaintiff,  who  has  a  kind  of 


B.  C.  VOL.  XVII.]      SECT.  V.  —  EELATION  AS  TO  THIRD  PABTIES.       361 
Hoi.  18, 14.  —  HanveU  y.  ThonuKm ;  Eager  v.  Orimwood.  —  Hotel. 

property  in  her.     [Alderson,  B.  — No:  the  plaintiff  has  only  a 
right  to  her  service.  ] 

Pollock,  C.  B.  — The  case  of  GHnnell  v.  Wells,  7  Man.  &  G. 
1033,  is  precisely  in  point  That  case  decided  that  an  action  for 
seduction  cannot  be  maintained  without  proof  of  loss  of  service. 
TiNDAL,  Ch.  J.,  in  delivering  the  judgment  of  the 
*  Court,  says :  "  The  foundation  of  the  action  by  a  father  to  [*  64] 
recover  damages  against  the  wrong-doer,  for  the  seduction 
of  his  daughter,  has  been  uniformly  placed,  from  the  earliest  time 
hitherto,  not  upon  the  seduction  itself,  which  is  the  wrongful  act 
of  the  defendant,  but  upon  the  loss  of  service  of  the  daughter,  in 
which  service  he  is  supposed  to  have  a  legal  right  or  interest " 
The  rule  must  be  absolute  to  enter  a  nonsuit,  unless  the  plaintiff 
will  consent  to  a  stet  processus. 

Alderson,  B.,  Eolfe,  B.,  and  Platt,  B.,  concurred. 

Rule  accordingly. 

ENGLISH  NOTES. 

The  action  may  be  maintained  by  a  stranger  in  blood  to  the  party 
seduced.  Fores  v.  Wilson  (1791),  1  Peake,  77,  3  E.  E.  652;  Irwin  v. 
Dearman  (1809),  11  East,  23,  10  E.  E.  423. 

The  fact  that  the  plaintiff  was  entitled  to  the  services  of  the  alleged 
servant  may  be  inferred  from  the  circumstances.  Maunder  v.  Venn 
(1829),  Moody  &  Malkin,  323,  31  E.  E.  734.  Where  the  servant  had 
been  discharged  from  an  actual  employment,  and  was  on  her  way  home 
to  her  father's  house  at  the  time  of  the  seduction,  it  was  held  that  there 
was  sufficient  evidence  of  service  to  entitle  the  father  to  maintain  the 
action.  Terry  v.  Hutchinson  (1868),  L.  E.  3  Q.  B.  599,  37  L.  J.  Q.  B. 
257,  18  L.  T.  521,  16  W.  E.  932.  But  unless  some  contract  for  ser- 
vice (expressed  or  implied)  is  shown  the  defendant  is  entitled  to  suc- 
ceed. Carr  v.  Clarke  (1818),  2  Chitty,  260,  23  E.  E.  748;  Hedges  v. 
Tagg  (1872),  L.  E.  7  Ex.  283,  41  L.  J.  Ex.  169,  20  W.  E.  976. 
Where  the  defendant,  with  intent  to  seduce  the  plaintiffs  daughter,  had 
hired  her  as  a  servant,  the  jury  were  directed  that  a  new  relation  of 
master  and  servant  was  not  established,  and  that  the  plaintiff  might 
maintain  the  action  as  if  his  daughter  was  still  in  his  service.  Speight 
V.  Oliviera  (1819),  2  Starkie,  493, 20  E.  E.  729.  K  the  relationship  of 
master  and  servant  is  contracted  after  the  seduction,  the  loss  of  service 
cannot  then  be  made  the  foundation  of  an  action.  Davies  v.  Williams 
(1847),  10  Q.  B.  728,  16  L.  J.  Q.  B.  369;  Hedges  v.  Tagg,  supra. 

It  would  seem  that  evidence  of  levity  of  conduct  is  admissible  in 
mitigation  of  damages,  but  if  the  jury  find  that  the  defendant  is  the 


362  MASTER  AND   SERVANT. 


Hm.  18, 14.  — lUnveU  v.  Humiaon;  Eager  v.  GrimwoocL— Hotei. 


father  of  the  child  then  the  plaintiff  is  entitled  to  the  verdict.  Dodd 
V.  Norris  (1814),  3  Camp.  519,  14  E.  E.  832;  Bate  v.  Hill  (1823), 
1  Car.  &  P.  100,  28  R.  R.  766  ;  Verrey  v.  Watkina  (1836),  7  Car.  &  P. 
308.  The  defendant  is  not  at  liberty  to  give  in  evidence  particular 
expressions  or  statements  made  by  the  party  seduced,  to  the  effect  that 
the  defendant  is  not  the  father  of  her  child,  unless  she  has  first  been 
cross-examined  on  the  point.  Carpenter  v.  Wall  (1840),  11  Ad.  &  Ell. 
803,  9  L.  J.  Q.  B.  217. 

An  action  for  enticing  away  a  servant  lies,  where  there  is  no  allega- 
tion that  the  plaintiff  debauched  her,  or  that  there  was  any  binding 
contract  of  service.  Evans  v.  Walton  (1867),  L.  R.  2  C.  P.  615,  36  L. 
J.  C.  P.  307,  17  L.  T.  92,  15  W.  R.  1062.  There  the  plaintiff's 
daughter,  who  was  about  nineteen  years  of  age,  resided  with  him  as  a 
member  of  his  family,  and  assisted  him  in  his  business  of  a  licensed 
victualler.  By  means  of  a  fictitious  letter  of  invitation  dictated  by  the 
defendant,  she  procured  her  mother's  consent  to  her  quitting  her  home 
for  a  few  days,  when  she  left.  The  defendant  took  her  to  a  lodging- 
house,  where  he  cohabited  with  her  for  nine  days,  and  she  then  re- 
turned home.  It  was  held  that  there  was  a  sufficient  continuing  relation 
of  master  and  servant  to  support  the  action,  and  sufficient  evidence  of  a 
wrongful  enticing  away  of  the  daughter  by  the  defendant  to  entitle 
the  plaintiff  to  maintain  an  action  against  him. 

AMERICAN  NOTES. 

The  action  of  seduction  is  not  maintainable  by  a  father  without  proof  ol 
loss  of  service  or  the  right  of  service,  and  so  he  was  held  disentitled  to  recover 
where  the  daughter  was  at  the  time  at  service  with  another  for  a  definite 
period.  Oghom  v.  Francis,  15  Vroom  (New  Jersey  Law),  441 ;  43  Am.  Rep. 
8d4 :  "  Such  suits  rest  exclusively  on  the  relationship  of  master  and  servant." 
So  in  Bartley  v.  Richtmyer,  4  New  York,  38;  Homketh  v.  Barry  8  Sergeant  & 
Rawle  (Penn.),  36;  11  Am.  Dec.  568;  Kennedy  v.  Shea,  110  Massachusetts, 
147;  14  Am.  Rep.  584;  White  v.  Murtland,  71  lUinois,  250;  22  Am.  Rep.  100; 
Harrison  v.  Prentice,  28  Ontario,  140 ;  Schmit  v.  Mitchell,  59  Minnesota,  251 ; 
Dennis  v.  Clark,  2  Gushing  (Mass.),  347  (citing  the  Eager  case) ;  Kinney  ▼. 
Laughenour,  89  North  Carolina,  365.  So  the  action  is  not  maintainable  by 
the  mother  although  the  father  was  an  invalid  supported  by  her  and  the 
seduced  daughter.   Entner  v.  Benneweis,  24  Ontario,  407. 

But  if  the  parent  retained  tlie  right  to  the  service,  he  may  maintain  the 
action  although  the  seduction  took  place  while  the  child  was  away  from  home. 
Lavery  v.  Cooke,  52  Wisconsin,  612;  38  Am.  Rep.  768;  Davidson  v.  Abbott,  52 
Vermont,  570 ;  36  Am.  Rep.  767  (action  by  a  mother  where  the  father  had 
been  absent  jnore  than  seven  years  ;  citing  the  Manvell  case) ;  Furman  v. 
Van  Sise,  56  New  York,  435;  15  Am.  Rep.  441;  Blanchard  v.  lUUy,  120 
Biassachusetts,  487 ;  21  Am.  Rep.  535 ;  Simpson  v.  Grayson,  54  Arkansas,  404; 
26  Am.  St.  Rep.  52.     «  Acts  of  service  by  the  daughter  are  not  necessary ;  U 


K.  C.  VOL.  XVn.]       SECT.  V.  —  RELATION  AS  TO  THIRD  PARTIES.        363 

Hoi.  13, 14.  — ICuTeU  y.  ThomMn;  Eager  y.  Orimwood. — Hotel. 

is  enough  if  the  parent  has  a  right  to  command  them/'  Hewitt  v.  Primes  21 
Wendell  (N.  Y.),  79 ;  Noice  v.  Broum,  39  New  Jersey  Law,  589. 

In  Boyd  v.  Birrf,  8  Blackford  (Indiana),  113 ;  44  Am.  Dec.  740,  it  was  held 
that  the  father  could  maintain  the  action  where  his  minor  daughter  had  left 
his  house  with  his  consent,  with  no  intention  of  returning,  and  with  his  con- 
sent to  have  her  own  earnings.  The  Court  said :  **  But  no  English  case,  so  far 
as  we  know,  has  gone  the  length  of  supporting  the  action,  where  the  daughter, 
having  left  her  father,  was  subsequently  seduced.  Several  of  the  American 
Courts,  however,  taking  a  more  liberal  view  of  this  remedy,  have  decided  that 
the  action  may  be  maintained,  if  the  unmarried  daughter,  at  the  time  of  her 
seduction,  was  under  the  age  of  twenty-one  years,  though  her  father  had  relin- 
quished all  claim  to  her  services,  and  she  was  in  the  employment  of  another 
person.  The  reasons  assigned  for  these  decisions  are,  that  imtil  the  majority 
of  the  daughter,  the  relation  of  'master  and  servant  must  be  supposed  to  exist 
between  her  father  and  her,  inasmuch  as  he  has  the  legal  right  to  control  her 
conduct,  is  bound  for  her  support,  and  may,  at  any  time,  revoke  his  leave  of 
absence,  and  reclaim  her  services.  Martin  v.  Payne,  9  Johnson,  387  (6  Am.  Dec. 
288) ;  Nickleson  v.  Striker,  10  Johnson,  115  (6  Am.  Dec.  318) ;  Homketh  v.  Barr^ 
8  Serg.  &  R.  36  (11  Am.  Dec.  568)  ;  Vanhom  v.  Freeman,  1  Halst.  322.  We  are 
disposed  to  adopt  the  principle  established  by  these  decisions.  If  it  be  proper 
to  substitute  a  constructive  for  an  actual  service,  to  enable  the  wealthy  parent, 
whose  daughter  resides  with  him,  to  maintain  this  action  when  the  honor  and 
happiness  of  his  family  are  assailed  by  the  seducer,  it  is  no  less  proper  that 
the  same  substitution  should  be  allowed  in  favor  of  the  less  fortunate  father, 
whose  circumstances  require  the  absence  of  his  child  from  the  parental  roof, 
in  order  to  enable  him  by  the  same  means  to  protect  himself  and  family  from 
the  same  misfortune." 

The  action  is  maintainable  where  the  defendant  obtained  the  consent  of 
the  parents  to  a  marriage  which  proved  void :  Lawyer  v.  Fritcher,  130  New 
York,  239;  14  Lawyers'  Rep.  Annotated,  700. 

Even  in  case  of  a  daughter  of  age,  if  the  relation  of  master  and  servant 
exists.  SxUton  v.  Huffman,  32  New  Jersey  Law,  58;  Greenwood  v.  Greenwood^ 
28  Maryland,  370;  Stevenson  v.  Belknap,  6  Iowa,  97  ;  71  Am.  Dec.  392. 

All  the  cases  recognize  the  loss  of  the  most  trifling  and  valueless  service  as 
a  sufficient  foundation  for  the  action.  No  proof  of  service  is  necessary  beyond 
the  fact  of  the  daughter's  living  in  the  father's  house  as  a  member  of  his 
family.    Noice  v.  Broion,  39  New  Jersey  Law,  539. 

The  Greenwood  case  is  cited  in  Cooley  on  Torts,  p.  268,  and  both  principal 
cases  are  cited  in  Schouler  on  Domestic  Relations,  sects.  260,  261,  where  it  is 
said:  "It  is  probably  at  any  point  short  of  her  abode  in  another  household 
where  the  parent  has  relinquished  the  right  of  her  service  past  the  power  of 
recall,  that  the  bounds  should  be  placed  to  this  rule  of  a  daughter's  service 
entitling  the  parent  to  sue  for  damages." 


364  MERGEB. 

Ho.  1.  —  XendaU  v.  Wftmlltoii,  4  App.  Caa.  504-M6. 

MERGER. 


No,  1.  — KENDALL  v.  HAMILTON. 
(H.  L.  1879.) 

RULE. 

The  remedy  upon  a  contract  is  merged  in  a  judgment 
(even  if  unsatisfied)  which  purports  to  dispose  of  the  liabil- 
ity under  the  contract  as  a  cause  of  action. 

Kendall  y.  Hamilton. 

4  App.  Cas.  504-546  (a.  c.  48  L.  J.  C.  P.  705 ;  41  L.  T.  418 ;  28  W.  B.  97). 

[This  case  will  be  found  reported  as  No.  3  of  "Abatement," 
IRC.  175.] 

ENGLISH  NOTES. 

In  Edevain  v.  Cohen  (C.  A.  1889),  43  Ch.  D.  187,  62  L.  T.  17,  38 
W.  B.  177,  the  plaintiff  brought  an  action  against  the  two  defendants 
for  the  wrongful  removal  of  furniture.  It  appeared  at  the  trial  that 
the  plaintiff  had  recovered  judgment  in  an  action  against  other  persons 
who  had  joined  in  the  removal.  After  the  evidence  for  the  plaintiff 
and  one  of  the  defendants  had  been  taken,  an  application  was  made  on 
behalf  of  the  other  defendant  for  leave  to  amend  by  pleading  this  judg- 
ment, and  a  similar  application  was  thereupon  made  on  behalf  of  the 
first  defendant.  This  was  refused,  and  the  refusal  was  upheld  in  the 
Court  of  Appeal.  It  appeared,  however,  that  the  first  judgment  was 
known  to  the  solicitor  of  one  of  the  defendants,  at  the  time  when  the 
action  of  Edevain  v.  Cohen  was  brought,  and  was  probably  also  known 
to  the  solicitor  of  the  other  defendant,  and  it  was  on  the  ground  that 
the  leave  to  amend  was  only  sought  when  the  defendants  saw  that  they 
were  likely  to  lose  the  day  on  the  merits,  that  the  Court,  inferring  that 
there  was  no  substance  in  the  objection  that  the  matter  was  re8  judU 
eata,  refused  the  application. 

The  ruling  case  was  followed  in  Hoare  v.  Nihlett,  1891,  1  Q.  B. 
781,  60  L.  J.  Q.  B.  565,  64  L.  T.  659,  39  W.  R.  491.  There  it  was 
held  that  the  rule  extended  to  the  case  where  one  of  two  joint  con- 


R  a  VOL.  XVII.]  MERGEK  365 

Ho.  1.  —  Kendall  ▼.  Hamiltmi.  —  Hotes. 

tractors  was  a  married  woman  contracting  in  respect  of  ber  separate 
property. 

The  liability  must,  however,  arise' in  respect  of  the  contract.  Thus 
in  Drake  v.  Mitchell  (1803),  8  East,  251,  7  R.  R.  449,  one  of  three 
joint  contractors  gave  a  bill  of  exchange  in  part  payment  of  a  debt  se- 
cured by  a  covenant.  Judgment  was  recovered  on  the  bill,  and  an 
action  on  the  covenant  was  held  maintainable  against  the  three.  This 
case  was  followed  by  the  Court  of  Appeal  in  Wegg-Prosser  v.  Evans^ 
1895, 1  Q.  B.  108,  64  L.  J.  Q.  B.  1,  72  L.  T.  8,  43  W.  R.  66. 
There  the  defendant  and  one  Thomas  jointly  guaranteed  the  rent  of  the 
plaintifPs  tenant.  The  tenant  made  default  in  payment  of  a  half-year's 
rent,  and  an  application  for  the  rent  was  made  to  Thomas,  who  gave 
his  cheque  for  the  amount.  The  cheque  was  dishonoured,  and  the 
plaintiff  sued  Thomas  on  the  cheque  and  recovered  judgment.  Execu- 
tion was  issued  on  the  judgment,  but  nothing  was  recovered.  The 
plaintiff  then  brought  an  action  on  the  guarantee  against  the  defendant, 
and  it  was  held  that  the  action  was  maintainable,  notwithstanding  the 
judgment  recovered  against  the  co-contractor  on  the  cheque. 

Some  questions  of  construction  have  arisen  in  considering  whether 
merger  of  a  contract  has  been  complete,  so  as  to  make  interest  payable 
at  the  statutory  rate  of  four  per  cent,  or  whether  a  higher  rate  continues 
to  be  payable,  notwithstanding  the  institution  of  proceedings  which 
are  prosecuted  to  judgment.  Popple  v.  Sylvester  (1882),  22  Ch.  D.  98, 
52  L.  J.  Ch.  54,  47  L.  T.  329,  31  W.  R.  116;  Ex  parte  Fewings,  In  re 
Sneyd  (C.  A.  1883),  25  Ch.  D.  338,  53  L.  J.  Ch.  545,  50  L.  T.  109,  32 
W.  R.  352. 

AMERICAN  NOTES. 

This  case  is  cited  in  Black  on  Judgments,  sect.  70 ;  Freeman  on  Judgments, 
sects.  281,  232,  and  is  supported  by  Mason  v.  Eldred,  6  Wallace  (U.  S.  Sup. 
Ct.),  231;  United  States  v.  Ames,  99  United  States,  35  ;  Ward  v.  Johnson,  18 
Massachusetts,  148;  Suydam  v.  Barber,  18  New  York,  468 ;  75  Am.  Dec.  254 ; 
Smith  V.  Black,  9  Sergeant  &  Rawle  (Penn.),  142  ;  11  Am.  Dec.  686 ;  Moale  v. 
HoUins,  11  Gill  &  Johnson  (Maryland),  11 ;  33  Am.  Dec.  684 ;  Brown  v.  John- 
son, 13  Grattan  (Virginia),  644;  Ferrcdl  v.  Bradford,  2  Florida,  508 ;  50  Am. 
Dec.  293  ;  EUioU  v.  Porter,  5  Dana  (Kentucky),  299  ;  30  Am.  Dec.  689 ;  Clitv 
ton  Bank  v.  Hart,  6  Ohio  State,  83  ;  Wilsons,  Buell,  117  Indiana,  315  ;  People 
V.  Harrison,  82  Illinois,  84  ;  Jansen  v.  Grimshaw,  125  Illinois,  468 ;  Bonesteel 
V.  Todd,  9  Michigan,  871 ;  80  Am.  Dec.  90 ;  Lauer  v.  Bandow,  48  Wisconsin, 
638;  Harris  v.  Dunn,  18  Up.  Can.  Q.  B.  852 ;  Wann  v.  McNulty,  2  Gilman 
(Illinois),  355;  43  Am.  Dec.  58;  North  jr  Scott  v.  Mudge  jr  Co.,  13  Iowa,  496; 
81  Am.  Dec.  441. 

The  fact  that  the  plaintiff  did  not  know  of  all  the  persons  bound  does  not 
prevent  the  merger.    Scott  v.  ColmesnU,  7  J.  J.  Marshall  (Kentucky),  416; 


366  MERGEB. 


Ho.  8.  —  Boaler  v.  Xayor. — Bale. 


Smith  y.  Black,  supra;  Moale  y.  HoUinSf  supra.  Contra^  Watson  y.  OwenSf 
1  Richardson  Law  (So.  Car.),  Ill  ("  entirely  unsupported  by  authority  (and) 
not  likely  to  be  anywhere  sustained,"  says  Mr.  Freeman). 

Mr.  Freeman  says  (Judgments,  sect.  231) :  '<  A  different  conclusion  was 
announced  by  Chief  Justice  Marshall  in  the  case  of  Sheehy  y.  MandemUe, 
6  Cranch,  253.  He  there  held  that  a  judgment  against  one  of  the  makers  of 
a  joint  note  did  not  merge  it  as  to  the  other  maker.  Notwithstanding  the 
respect  eyerywhere  entertained  for  the  opinions  of  this  great  jurist,  this  par- 
ticular one  was  rarely  assented  to  in  the  State  Courts,  was  doubted  and  criti- 
cised in  England,  and  after  many  years  was  directly  oyerruled  in  the  same 
Court  in  which  it  was  pronounced.  Mason  y.  Eldred,  6  Wallace,  231.  The 
cases  in  accord  with  it  are  few :  Treasurers  y.  Bates,  2  Bailey  Law  (So.  Car.), 
362;  Collins  y.  Lemasters,  1  id.  348;  21  Am.  Dec.  469  and  note ;  Sneed  y. 
Wiester,  2  A.  K.  Marshall  (Kentucky),  277  ;  Union  Bank  y.  Eodges,  11  Rich- 
ardson  Law  (So.  Car.),  480 ;  BeazLey  y.  Simsy  81  Virginia,  644;  while  those 
which  oppose  it  are  yery  numerous." 

Where  one  of  two  joint  debtors  was  dead,  it  was  held  that  a  judgment 
against  the  suryiyor  did  not  bar  pursuit  of  the  decedent's  estate  on  the  original 
claim :  Devcl  y.  HcUstead,  16  Indiana,  287.  So  where  the  plaintiff  was  induced 
by  fraud  to  discontinue  as  to  one  and  take  judgment  only  against  the  other : 
FerraU  y.  Bradford,  supra.  (No  good  ground  in  law  for  this,  says  Black.)  So 
where  the  debtors  reside  in  different  States,  or  it  is  impossible  to  sue  all  in  the 
same  Court :  Tibbetts  y.  Shapleigh,  60  New  Hampshire,  487  ;  Yoho  y.  McGovernj 
42  Ohio  State,  11 ;  MerriamY.  Barker,  121  Indiana,  74  ;  Eastern  T.  B.  y.  Btbee^ 
53  Vermont,  177 ;  38  Am.  Rep.  665 ;  Olcott  y.  LitlUy  9  New  Hampshire,  250; 
32  Am.  Dec.  357  ;  Wiley  y.  Holmes,  28  Missouri,  286;  76  Am.  Dec.  126  ;  Den- 
neU  y.  Chick,  2  Greenleaf  (Maine),  191 ;  11  Am.  Dec.  59  ;  Rand  y.  Nutter,  56 
Maine,  339;  Broum  y.  Birdsdll,  29  Barbour  (N.  Y.  Sup.  Ct.),  549.  But  where 
the  judgment  in  another  State  is  against  the  same  defendants  it  is  a  merger : 
Henderson  y.  Staniford,  105  Massachusetts,  504 ;  7  Am.  Rep.  651. 

Merger  is  not  effected  by  a  judgment  subsequently  adjudged  yoid.  McCad-^ 
den  y.  Slauson,  96  Tennessee,  586 ;  WhiUier  v.  Wendell,  7  New  Hampshire,  257. 


No.  2.  — BOALEE  v.  MAYOR 
(c.  p.  1865.) 

RULE. 

A  SIMPLE  contract  debt  will  not  be  merged  in  a  specialty, 
unless  the  specialty  is  coextensive  with  the  simple  contract 
debt;  and  made  between  the  same  partiea 


B.  C.  VOL,  XVn.]  MERGER.  367 

Ho.  8.  — BoalAT  V.  Mayor,  84  L.  J.  C.  P.  880,  881. 

Boaler  y.  Mayor. 

84  L.  J.  C.  P.  230-234  (s.  c.  19  C.  B.  (N.  S.)  76 ;  12  L.  T.  457 ;  13  W.  R.  775). 

Deed.  —  Merger.  —  Principal  and  Surety.  [280] 

The  plaintiffs  lent  M.  £650  on  the  security  of  a  mortgage  of  certain  property, 
with  a  covenant  by  M.  to  repay  the  £650,  with  interest  at  £5  per  cent,  on  the 
22nd  of  June,  1864 ;  and  as  the  mortgage  was  not  a  sufficient  security  for  more 
than  £500,  the  loan  was  made  on  the  further  security  of  the  promissory  note  of 
M.  and  two  sureties  for  £150,  payable  on  demand,  with  interest  at  £4  10s.  per 
cent.  The  promissory  note,  which  it  was  agreed  between  the  plaintiffs  and 
M.  should  be  a  collateral  security  to  the  mortgage  deed,  was  made  and  given  to 
the  plaintiflEs  on  the  7th  of  December,  1868,  when  £150,  part  of  the  loan,  was 
advanced  to  M. ;  but  the  mortgage  deed  was  not  executed  until  the  22nd  of 
December,  1863.  The  deed  contained  no  i-eference  to  the  note,  and  the  sureties 
who  signed  the  note  were  not  parties  to  the  deed.  Held,  that  the  debt  secured 
by  the  note  did  not  merge  in  the  deed,  and  that,  though  the  remedy  on  the 
covenant  could  not  be  enforced  before  the  22nd  of  June,  1864,  time  was  not 
given  to  M.  so  as  to  discharge  the  liability  of  the  sureties  on  the  note. 

Action  by  the  payees  against  the  makers  of  a  promissory  note 
for  £150,  payable  on  demand,  with  interest  thereon  at  the  rate  of 
£4  lOfi.  per  cent  per  annum  during  the  forbearance. 

Pleas :  Thirdly,  that  the  defendants  made  the  said  note  jointly 
with  one  Charles  Mayor,  and  that  after  making  the  said  note  and 
before  action  the  said  Charles  Mayor  satisfied  and  discharged  the 
said  note,  and  the  plaintiffs'  claim  thereon,  by  executing  to  them 
a  deed  whereby  the  said  Charles  Mayor  secured  to  the  plaintiffs 
and  covenanted  with  the  plaintiffs  to  pay  them  £650  and  interest, 
including  the  amount  of  the  said  note,  for  and  on  account  and  in 
satisfaction  and  discharge  of  the  said  note  and  the  moneys  therein 
mentioned,  which  deed  was  executed  by  the  said  Charles  Mayor  at 
the  request  of  the  plaintiffs,  and  accepted  by  the  plaintiffs 
in  full  satisfaction  *  and  discharge  of  the  said  plaintiffs'  [*  231] 
claim  on  the  said  note,  and  that  the  plaintiffs'  claim  was 
and  is  thereby  extinguished,  satisfied,  and  discharged. 

Fourthly,  for  defence  on  equitable  grounds,  that  the  defendants 
made  the  said  note  jointly  with  Charles  Mayor  as  surety  to  the 
plaintiffs  for  the  said  Charles  Mayor,  and  in  consideration  of  £150 
advanced  by  the  plaintiffs  for  the  said  Charles  Mayor,  whereof  the 
plaintifEs  had  notice  before  and  when  they  first  received  the  said 
note,  and  they,  the  plaintiffs,  received  and  always  held  the  same 


368  MERGER. 

Ho.  8.  ^Boaler  v.  Xayor,  84  L.  J.  C.  P.  281. 

on  the  terms  that  the  defendants  should  be  liable  to  them  on  the 
said  note  as  sureties  only  for  the  said  Charles  Mayor;  and  that 
after  making  the  said  note  and  before  action  the  plaintiffs,  without 
the  consent  of  the  defendants  or  of  either  of  them,  for  a  good, 
valuable,  and  sufficient  consideration  in  that  behalf,  agreed  with 
the  said  Charles  Mayor  to  give  and  then  gave  him  time  for  the 
payment  of  the  moneys  in  the  said  note  specified,  and  thereby 
discharged  the  defendants  from  the  said  note.     Issues  thereon. 

The  following  are  the  facts  as  they  appeared  in  evidence  before 
Erle,  Ch.  J.,  at  the  London  sittings  after  last  Hilary  Term. 
Mr.  Charles  Mayor,  mentioned  in  the  pleas,  and  who  was  the  son 
of  the  elder  and  the  brother  of  the  younger  of  the  two  defendants, 
having  occasion  to  borrow  £650,  applied  for  that  purpose  to  the 
plaintiffs  towards  the  end  of  1863,  and  offered  as  security  some 
property  to  which  his  wife  would  become  entitled  on  attaining 
the  age  of  twenty -five.  This  was  found  to  be  only  a  sufficient 
security  for  £500,  and,  according  to  the  account  given  by  the 
plaintiff  Watson,  and  which  the  jury  found  to  be  the  true  account 
of  the  loan,  it  was  agreed  between  the  plaintiffs  and  Charles 
Mayor  that,  as  security  for  the  proposed  advance  of  £650,  there 
should  be  a  mortgage  deed  assigning  the  wife's  interest,  and  con- 
taining a  covenant  by  Charles  Mayor  and  a  surety  for  the  repay- 
ment of  the  whole  £650,  and  that,  as  a  collateral  and  additional 
security  to  the  deed,  there  should  be  a  promissory  note  by  Charles 
Mayor  and  two  sureties  for  the  payment  of  £150  on  demand. 
Mr.  Charles  Mayor  accordingly  applied  to  his  father  aud  brother, 
the  present  defendants,  to  join  him  in  signing  the  promissory  note, 
the  subject  of  this  action.  This  they  did,  and  the  note  was  thus 
made  and  given  to  the  plaintiffs  on  the  7th  of  December,  1863,  on 
which  day  the  plaintiffs  advanced  £150  to  Charles  Mayor  as  part 
of  the  agreed  loan.  No  interview  on  the  subject  ever  took  place 
between  the  plaintiffs  and  the  defendants.  On  the  22nd  of 
December,  1863,  the  mortgage  deed  was  executed,  and  £500,  the 
balance  of  the  loan,  was  then  paid  to  Charles  Mayor.  The  deed 
was  made  between  Charles  Mayor  and  Elizabeth  his  wife  of  the 
first  part,  William  Warren  (a  surety)  of  the  second  part,  and  the 
plaintiffs  of  the  third  part  It  contained  no  reference  whatever  to 
the  promissory  note,  but  recited  the  agreement  by  the  plaintiffs  to 
lend  Charles  Mayor  and  his  wife  £650,  upon  having  the  repay- 
ment  thereof,  with  interest  thereon  at  £5  per  cent  per  annum. 


B.  a  VOL.  xvn.]  mergbb.  369 

Ho.  8.  — BoalAT  Y.  Xayor,  84  L.  J.  C.  P.  281,  282. 

secured  by  the  assignment  of  the  interests  of  the  said  Elizabeth 
Mayor,  under  a  certain  will  and  codicils  therein  mentioned  and  of 
a  policy  of  assurance ;  and  it  also  recited  an  agreement  by  the  said 
Charles  Mayor  and  W.  Warren  as  his  surety  to  enter  into  certain 
covenants,  and  it  contained  a  covenant  by  the  said  Charles  Mayor 
and  W.  Warren  for  the  payment  of  £650  and  interest  thereon  at 
the  rate  of  £5  per  cent  per  annum  on  the  22nd  of  June,  1864 

It  was  contended  on  behalf  of  the  defendants  that  the  deed  dis* 
charged  the  defendants  either  on  the  ground  that  it  operated  as 
a  merger  of  the  promissory  note  or  because  it  gave  time  to  the 
principal  debtor  for  the  payment  of  the  debt  Under  these  circum- 
stances a  verdict  was  entered  by  consent  for  the  defendants,  with 
leave  to  the  plaintiffs  to  move  to  enter  the  verdict  for  them  for 
the  amount  claimed,  if  the  Court  should  be  of  opinion  that  in 
point  of  law  the  deed  did  not  so  dischaige  the  sureties. 

Huddleston  afterwards  obtained  a  rule  nisi  to  that  effect,  citing 
Ansell  V.  Baker,  15  Q.  B.  20.     Against  this  rule  — 

Macaulay  and  Cave  now  showed  cause.  — The  effect  of  this  deed 
was  to  give  time  to  Charles  Mayor,  the  principal  creditor,  for  the 
payment  of  the  debt,  viz.,  until  the  22nd  of  June,  1864 

*  [Keating,  J.  —  The  question  is  whether  he  might  not  [•  232] 
have  been  sued  on  the  note  before  June,  1864] 

It  is  submitted  he  could  not ;  it  is  clear  that  he  could  not  have 
been  sued  on  the  deed  before  that  time,  and  it  is  contended  that 
the  creditors  having  taken  this  security  would  not  have  been 
allowed  by  a  Court  of  equity  to  have  enforced  their  debt  against 
the  principal  debtor  before  the  22nd  of  June. 

[Smith,  J.  —  If  the  debt  be  not  merged  in  the  deed,  an  action 
might  be  brought  on  the  note  against  the  principal  debtor ;  and 
does  not  the  case  of  Sharpe  v.  Gibbs,  16  C.  B.  (N.  S.)  527,  show 
that  the  deed  here  does  not  operate  as  a  merger,  as  the  note  is  for 
a  different  debt  ?] 

It  is  submitted  that  the  deed  operated  as  a  merger  of  the  lia- 
bility of  the  principal  debtor  on  the  promissory  note,  and  the  case 
of  JPHce  V.  Moulton,  10  C.  B.  (N.  S.)  561,  20  L.  J.  C.  P.  102,  is 
an  authority  that  it  would  have  that  operation  irrespectively  of 
the  intention  of  the  parties.  So  also  was  the  joint  liability  of  all 
the  makers  of  the  note  likewise  merged  in  the  deed  (King  v. 
ffoare,  13  M.  &  W.  494,  14  L.  J.  Ex.  29),  where  it  was  held  that 
a  judgment  recovered  against  one  of  two  joint  debtors  is  a  bar  to 
VOL.  XVII.  — 24 


368  MEBGEIL 

Ho.  3.^Boaler  Y.  lUjm,  84  L.  J.  C.  P.  281. 

on  the  terms  that  the  defendants  should  be  liable  to  them  on  the 
said  note  as  sureties  only  for  the  said  Charles  Mayor;  and  that 
after  making  the  said  note  and  before  action  the  plaintiffs,  without 
the  consent  of  the  defendants  or  of  either  of  them,  for  a  good, 
valuable,  and  sufficient  consideration  in  that  behalf,  agreed  with 
the  said  Charles  Mayor  to  give  and  then  gave  him  time  for  the 
payment  of  the  moneys  in  the  said  note  specified,  and  thereby 
discharged  the  defendants  from  the  said  note.     Issues  thereon. 

The  following  are  the  facts  as  they  appeared  in  evidence  before 
Erle,  Ch.  J.,  at  the  London  sittings  after  last  Hilary  Term. 
Mr.  Charles  Mayor,  mentioned  in  the  pleas,  and  who  was  the  son 
of  the  elder  and  the  brother  of  the  younger  of  the  two  defendants, 
having  occasion  to  borrow  £650,  applied  for  that  purpose  to  the 
plaintiffs  towards  the  end  of  1863,  and  offered  as  security  some 
property  to  which  his  wife  would  become  entitled  on  attaining 
the  age  of  twenty-five.  This  was  found  to  be  only  a  sufficient 
security  for  £500,  and,  according  tx)  the  account  given  by  the 
plaintiff  Watson,  and  which  the  jury  found  to  be  the  true  account 
of  the  loan,  it  was  agreed  between  the  plaintiffs  and  Charles 
Mayor  that,  as  security  for  the  proposed  advance  of  £650,  there 
should  be  a  mortgage  deed  assigning  the  wife's  interest,  and  con- 
taining a  covenant  by  Charles  Mayor  and  a  surety  for  the  repay- 
ment of  the  whole  £650,  and  that,  as  a  collateral  and  additional 
security  to  the  deed,  there  should  be  a  promissory  note  by  Charles 
Mayor  and  two  sureties  for  the  payment  of  £150  on  demand. 
Mr.  Charles  Mayor  accordingly  applied  to  his  father  and  brother, 
the  present  defendants,  to  join  him  in  signing  the  promissory  note, 
the  subject  of  this  action.  This  they  did,  and  the  note  was  thus 
made  and  given  to  the  plaintiffs  on  the  7th  of  December,  1863,  on 
which  day  the  plaintiffs  advanced  £150  to  Charles  Mayor  as  part 
of  the  agreed  loan.  No  interview  on  the  subject  ever  took  place 
between  the  plaintiffs  and  the  defendants.  On  the  22nd  of 
December,  1863,  the  mortgage  deed  was  executed,  and  £500,  the 
balance  of  the  loan,  was  then  paid  to  Charles  Mayor.  The  deed 
was  made  between  Charles  Mayor  and  Elizabeth  his  wife  of  the 
first  part,  William  Warren  (a  surety)  of  the  second  part,  and  the 
plaintiffs  of  the  third  part  It  contained  no  reference  whatever  to 
the  promissory  note,  but  recited  the  agreement  by  the  plaintiffs  to 
lend  Charles  Mayor  and  his  wife  £650,  upon  having  the  repay- 
ment thereof,  with  interest  thereon  at  £5  per  cent  per  annum. 


B.  c.  VOL.  xvil]  merger.  369 

Ho.  2.  —  BoBler  y.  Xayor,  84  L.  J.  C.  P.  281,  282. 

secured  by  the  assignment  of  the  interests  of  the  said  Elizabeth 
Mayor,  under  a  certain  will  and  codicils  therein  mentioned  and  of 
a  policy  of  assurance ;  and  it  also  recited  an  agreement  by  the  said 
Charles  Mayor  and  W.  Warren  as  his  surety  to  enter  into  certain 
covenants,  and  it  contained  a  covenant  by  the  said  Charles  Mayor 
and  W.  Warren  for  the  payment  of  £650  and  interest  thereon  at 
the  rate  of  £5  per  cent  per  annum  on  the  22nd  of  June,  1864 

It  was  contended  on  behalf  of  the  defendants  that  the  deed  dis- 
charged the  defendants  either  on  the  ground  that  it  operated  as 
a  merger  of  the  promissory  note  or  because  it  gave  time  to  the 
principal  debtor  for  the  payment  of  the  debt  Under  these  circum- 
stances a  verdict  was  entered  by  consent  for  the  defendants,  with 
leave  to  the  plaintiffs  to  move  to  enter  the  verdict  for  them  for 
the  amount  claimed,  if  the  Court  should  be  of  opinion  that  in 
point  of  law  the  deed  did  not  so  discharge  the  sureties. 

Huddleston  afterwards  obtained  a  rule  nisi  to  that  effect,  citing 
Ansell  V.  Baker,  15  Q.  B.  20.     Against  this  rule  — 

Macaulay  and  Cave  now  showed  cause.  —  The  effect  of  this  deed 
was  to  give  time  to  Charles  Mayor,  the  principal  creditor,  for  the 
payment  of  the  debt,  viz.,  until  the  22nd  of  June,  1864 

*  [Keating,  J.  —  The  question  is  whether  he  might  not  [•  232] 
have  been  sued  on  the  note  before  June,  1864] 

It  is  submitted  he  could  not ;  it  is  clear  that  he  could  not  have 
been  sued  on  the  deed  before  that  time,  and  it  is  contended  that 
the  creditors  having  taken  this  security  would  not  have  been 
allowed  by  a  Court  of  equity  to  have  enforced  their  debt  against 
the  principal  debtor  before  the  22nd  of  Jime. 

[Smith,  J.  — If  the  debt  be  not  merged  in  the  deed,  an  action 
might  be  brought  on  the  note  against  the  principal  debtor;  and 
does  not  the  case  of  Sharpe  v.  Gibbs,  16  C.  B.  (N.  S.)  527,  show 
that  the  deed  here  does  not  operate  as  a  merger,  as  the  note  is  for 
a  different  debt  ?] 

It  is  submitted  that  the  deed  operated  as  a  merger  of  the  lia- 
bility of  the  principal  debtor  on  the  promissory  note,  and  the  case 
of  Price  V.  Moulton,  10  C.  B.  (N.  S.)  561,  20  L.  J.  C.  P.  102,  is 
an  authority  that  it  would  have  that  operation  irrespectively  of 
the  intention  of  the  parties.  So  also  was  the  joint  liability  of  all 
the  makers  of  the  note  likewise  merged  in  the  deed  (King  v. 
ffoare,  13  M.  &  W.  494,  14  L  J.  Ex.  29),  where  it  was  held  that 
a  judgment  recovered  against  one  of  two  joint  debtors  is  a  bar  to 
VOL.  XVII.  —  24 


368  MERGER. 

Ho.  2.  >-  Booler  y.  Xayor,  84  L.  J.  C.  P.  281. 

on  the  terms  that  the  defendants  should  be  liable  to  them  on  the 
said  note  as  sureties  only  for  the  said  Charles  Mayor;  and  that 
after  making  the  said  note  and  before  action  the  plaintiffs,  without 
the  consent  of  the  defendants  or  of  either  of  them,  for  a  good, 
valuable,  and  sufficient  consideration  in  that  behalf,  agreed  with 
the  said  Charles  Mayor  to  give  and  then  gave  him  time  for  the 
payment  of  the  moneys  in  the  said  note  specified,  and  thereby 
discharged  the  defendants  from  the  said  note.     Issues  thereon. 

The  following  are  the  facts  as  they  appeared  in  evidence  before 
Erle,  Ch.  J.,  at  the  London  sittings  after  last  Hilary  Term. 
Mr.  Charles  Mayor,  mentioned  in  the  pleas,  and  who  was  the  son 
of  the  elder  and  the  brother  of  the  younger  of  the  two  defendants, 
having  occasion  to  borrow  £650,  applied  for  that  purpose  to  the 
plaintiffs  towards  the  end  of  1863,  and  offered  as  security  some 
property  to  which  his  wife  would  become  entitled  on  attaining 
the  age  of  twenty-five.  This  was  found  to  be  only  a  sufficient 
security  for  £500,  and,  according  to  the  account  given  by  the 
plaintiff  Watson,  and  which  the  jury  found  to  be  the  true  account 
of  the  loan,  it  was  agreed  between  the  plaintiffs  and  Charles 
Mayor  that,  as  security  for  the  proposed  advance  of  £650,  there 
should  be  a  mortgage  deed  assigning  the  wife's  interest,  and  con- 
taining a  covenant  by  Charles  Mayor  and  a  surety  for  the  repay- 
ment of  the  whole  £650,  and  that,  as  a  collateral  and  additional 
security  to  the  deed,  there  should  be  a  promissory  note  by  Charles 
Mayor  and  two  sureties  for  the  payment  of  £150  on  demand. 
Mr.  Charles  Mayor  accordingly  applied  to  his  father  and  brother, 
the  present  defendants,  to  join  him  in  signing  the  promissory  note, 
the  subject  of  this  action.  This  they  did,  and  the  note  was  thus 
made  and  given  to  the  plaintiffs  on  the  7th  of  December,  1863,  on 
which  day  the  plaintiffs  advanced  £150  to  Charles  Mayor  as  part 
of  the  agreed  loan.  No  interview  on  the  subject  ever  took  place 
between  the  plaintiffs  and  the  defendants.  On  the  22nd  of 
December,  1863,  the  mortgage  deed  was  executed,  and  £500,  the 
balance  of  the  loan,  was  then  paid  to  Charles  Mayor.  The  deed 
was  made  between  Charles  Mayor  and  Elizabeth  his  wife  of  the 
first  part,  William  Warren  (a  surety)  of  the  second  part,  and  the 
plaintiffs  of  the  third  part  It  contained  no  reference  whatever  to 
the  promissory  note,  but  recited  the  agreement  by  the  plaintiffs  to 
lend  Charles  Mayor  and  his  wife  £650,  upon  having  the  repay- 
ment thereof,  with  interest  thereon  at  £5  per  cent  per  annum. 


B.  a  VOL.  xvil]  mergbb.  369 

Ho.  8.  — Booler  Y.  Xayor,  84  L.  J.  C.  P.  281,  888. 

secured  by  the  assignment  of  the  interests  of  the  said  Elizabeth 
Mayor,  under  a  certain  will  and  codicils  therein  mentioned  and  of 
a  policy  of  assurance ;  and  it  also  recited  an  agreement  by  the  said 
Charles  Mayor  and  W.  Warren  as  his  surety  to  enter  into  certain 
covenants,  and  it  contained  a  covenant  by  the  said  Charles  Mayor 
and  W.  Warren  for  the  payment  of  £650  and  interest  thereon  at 
the  rate  of  £5  per  cent  per  annum  on  the  22nd  of  June,  1864 

It  was  contended  on  behalf  of  the  defendants  that  the  deed  dis- 
charged the  defendants  either  on  the  ground  that  it  operated  as 
a  merger  of  the  promissory  note  or  because  it  gave  time  to  the 
principal  debtor  for  the  payment  of  the  debt  Under  these  circum- 
stances a  verdict  was  entered  by  consent  for  the  defendants,  with 
leave  to  the  plaintiffs  to  move  to  enter  the  verdict  for  them  for 
the  amount  claimed,  if  the  Court  should  be  of  opinion  that  in 
point  of  law  the  deed  did  not  so  discharge  the  sureties. 

Huddleston  afterwards  obtained  a  rule  nisi  to  that  effect,  citing 
Ansell  V.  Baker,  15  Q.  B.  20.     Against  this  rule  — 

Macaulay  and  Cave  now  showed  cause.  — The  effect  of  this  deed 
was  to  give  time  to  Charles  Mayor,  the  principal  creditor,  for  the 
payment  of  the  debt,  viz. ,  until  the  22nd  of  June,  1864 

♦  [Keating,  J.  —  The  question  is  whether  he  might  not  [*  232] 
have  been  sued  on  the  note  before  June,  1864  ] 

It  is  submitted  he  could  not ;  it  is  clear  that  he  could  not  have 
been  sued  on  the  deed  before  that  time,  and  it  is  contended  that 
the  creditors  having  taken  this  security  would  not  have  been 
allowed  by  a  Court  of  equity  to  have  enforced  their  debt  against 
the  principal  debtor  before  the  22nd  of  June. 

[Smith,  J.  —  If  the  debt  be  not  merged  in  the  deed,  an  action 
might  be  brought  on  the  note  against  the  principal  debtor ;  and 
does  not  the  case  of  Sharpey.  Gibbs,  16  C.  B.  (N.  S.)  527,  show 
that  the  deed  here  does  not  operate  as  a  merger,  as  the  note  is  for 
a  different  debt  ?] 

It  is  submitted  that  the  deed  operated  as  a  merger  of  the  lia- 
bility of  the  principal  debtor  on  the  promissory  note,  and  the  case 
of  Price  v.  Movlton,  10  C.  B.  (N.  S. )  561,  20  L.  J.  C.  P.  102,  is 
an  authority  that  it  would  have  that  operation  irrespectively  of 
the  intention  of  the  parties.  So  also  was  the  joint  liability  of  all 
the  makers  of  the  note  likewise  merged  in  the  deed  {King  v. 
Hoare,  13  M.  &  W.  494,  14  L.  J.  Ex.  29),  where  it  was  held  that 
a  judgment  recovered  against  one  of  two  joint  debtors  is  a  bar  to 
VOL.  XVII.  — 24 


368  MERGER. 

Ko.  2.  —  Boaler  ▼.  ICayw,  84  L.  J.  C.  P.  281. 

on  the  terms  that  the  defendants  should  be  liable  to  them  on  the 
said  note  as  sureties  only  for  the  said  Charles  Mayor;  and  that 
after  making  the  said  note  and  before  action  the  plaintiffs,  without 
the  consent  of  the  defendants  or  of  either  of  them,  for  a  good, 
valuable,  and  sufficient  consideration  in  that  behalf,  agreed  with 
the  said  Charles  Mayor  to  give  and  then  gave  him  time  for  the 
payment  of  the  moneys  in  the  said  note  specified,  and  thereby 
discharged  the  defendants  from  the  said  note.     Issues  thereon. 

The  following  are  the  facts  as  they  appeared  in  evidence  before 
Erle,  CL  J.,  at  the  London  sittings  after  last  Hilary  Term. 
Mr.  Charles  Mayor,  mentioned  in  the  pleas,  and  who  was  the  son 
of  the  elder  and  the  brother  of  the  younger  of  the  two  defendants, 
having  occfision  to  borrow  £650,  applied  for  that  purpose  to  the 
plaintiffs  towards  the  end  of  1863,  and  offered  as  security  some 
property  to  which  his  wife  would  become  entitled  on  attaining 
the  age  of  twenty-five.  This  was  found  to  be  only  a  sufficient 
security  for  £500,  and,  according  tx)  the  account  given  by  the 
plaintiff  Watson,  and  which  the  jury  found  to  be  the  true  account 
of  the  loan,  it  was  agreed  between  the  plaintiffs  and  Charles 
Mayor  that,  as  security  for  the  proposed  advance  of  £650,  there 
should  be  a  mortgage  deed  assigning  the  wife's  interest,  and  con- 
taining a  covenant  by  Charles  Mayor  and  a  surety  for  the  repay- 
ment of  the  whole  £650,  and  that,  as  a  collateral  and  additional 
security  to  the  deed,  there  should  be  a  promissory  note  by  Charles 
Mayor  and  two  sureties  for  the  payment  of  £150  on  demand. 
Mr.  Charles  Mayor  accordingly  applied  to  his  father  and  brother, 
the  present  defendants,  to  join  him  in  signing  the  promissory  note, 
the  subject  of  this  action.  This  they  did,  and  the  note  was  thus 
made  and  given  to  the  plaintiffs  on  the  7th  of  December,  1863,  on 
which  day  the  plaintiffs  advanced  £150  to  Charles  Mayor  as  part 
of  the  agreed  loan.  No  interview  on  the  subject  ever  took  place 
between  the  plaintiffs  and  the  defendants.  On  the  22nd  of 
December,  1863,  the  mortgage  deed  was  executed,  and  £500,  the 
balance  of  the  loan,  was  then  paid  to  Charles  Mayor.  The  deed 
was  made  between  Charles  Mayor  and  Elizabeth  his  wife  of  the 
first  part,  William  Warren  (a  surety)  of  the  second  part,  and  the 
plaintiffs  of  the  third  part  It  contained  no  reference  whatever  to 
the  promissory  note,  but  recited  the  agreement  by  the  plaintiffs  to 
lend  Charles  Mayor  and  his  wife  £650,  upon  having  the  repay- 
ment thereof,  with  interest  thereon  at  £5  per  cent  per  annum. 


E.  a  VOL.  xvn.]  merger,  369 

Ko.  2.  —  Boaler  ▼.  ICayor,  84  L.  J.  C.  P.  281,  282. 

secured  by  the  assignment  of  the  interests  of  the  said  Elizabeth 
Mayor,  under  a  certain  will  and  codicils  therein  mentioned  and  of 
a  policy  of  assurance ;  and  it  also  recited  an  agreement  by  the  said 
Charles  Mayor  and  W.  Warren  as  his  surety  to  enter  into  certain 
covenants,  and  it  contained  a  covenant  by  the  said  Charles  Mayor 
and  W.  Warren  for  the  payment  of  £650  and  interest  thereon  at 
the  rate  of  £5  per  cent  per  annum  on  the  22nd  of  June,  1864 

It  was  contended  on  behalf  of  the  defendants  that  the  deed  dis- 
charged the  defendants  either  on  the  ground  that  it  operated  as 
a  merger  of  the  promissory  note  or  because  it  gave  time  to  the 
principal  debtor  for  the  payment  of  the  debt.  Under  these  circum- 
stances a  verdict  was  entered  by  consent  for  the  defendants,  with 
leave  to  the  plaintiffs  to  move  to  enter  the  verdict  for  them  for 
the  amount  claimed,  if  the  Court  should  be  of  opinion  that  in 
point  of  law  the  deed  did  not  so  discharge  the  sureties. 

Huddleston  afterwards  obtained  a  rule  nisi  to  that  effect,  citing 
Ansell  V.  Baker,  15  Q.  B.  20.     Against  this  rule  — 

Macaulay  and  Cave  now  showed  causa  —  The  effect  of  this  deed 
was  to  give  time  to  Charles  Mayor,  the  principal  creditor,  for  the 
payment  of  the  debt,  viz.,  until  the  22nd  of  June,  1864 

*  [Keating,  J.  —  The  question  is  whether  he  might  not  [*  232] 
have  been  sued  on  the  note  before  June,  1864] 

It  is  submitted  he  could  not ;  it  is  clear  that  he  could  not  have 
been  sued  on  the  deed  before  that  time,  and  it  is  contended  that 
the  creditors  having  taken  this  security  would  not  have  been 
allowed  by  a  Court  of  equity  to  have  enforced  their  debt  against 
the  principal  debtor  before  the  22nd  of  June. 

[Smith,  J.  —  If  the  debt  be  not  merged  in  the  deed,  an  action 
might  be  brought  on  the  note  against  the  principal  debtor;  and 
does  not  the  case  of  Sharpe  v.  GibbSy  16  C.  B.  (N.  S.)  527,  show 
that  the  deed  here  does  not  operate  as  a  merger,  as  the  note  is  for 
a  different  debt  ?] 

It  is  submitted  that  the  deed  operated  as  a  merger  of  the  lia- 
bility of  the  principal  debtor  on  the  promissory  note,  and  the  case 
of  Price  V.  Motdton,  10  C.  B.  (N.  S.)  561,  20  L.  J.  C.  P.  102,  is 
an  authority  that  it  would  have  that  operation  irrespectively  of 
the  intention  of  the  parties.  So  also  was  the  joint  liability  of  all 
the  makers  of  the  note  likewise  merged  in  the  deed  {King  v. 
ffoare,  13  M.  &  W.  494,  14  L.  J.  Ex.  29),  where  it  was  held  that 
a  judgment  recovered  against  one  of  two  joint  debtors  is  a  bar  to 
VOL.  XVII.  —  24 


370  MEB6EB. 

Ko.  2.  — Boaler  ▼.  ICayor,  84  L.  J.  C.  P.  282. 

an  action  against  the  other ;  and  in  Bell  v.  Bankes,  3  Man.  &  G. 
267,  Maule,  J. ,  expressed  the  opinion  that  taking  security  of  a 
higher  value  from  one  of  two  joint  debtors  would  cause  a  merger. 
That  opinion  is  cited  in  King  v.  Hoare,  and  relied  on  as  one  of 
the  grounds  for  giving  judgment  in  that  case.  These  authorities 
show,  it  is  submitted,  that  there  was  a  merger  of  the  liability  of 
the  principal  debtor  on  the  note,  and  that  no  action  could  have 
been  brought  against  him  on  the  note ;  if  so,  he  was  only  liable 
on  his  covenant,  and  that  could  not  be  enforced  until  the  22nd  of 
June;  consequently,  there  was  a  giving  time  which  would  dis- 
charge the  sureties.  In  Bovlthee  v.  Stvibs,  18  Ves.  20  (11  R  R 
141),  where  a  creditor  who  had,  among  other  securities,  a  bond 
with  a  surety,  took  a  mortgage  from  the  principal  debtor,  and 
agreed  to  receive  the  residue  by  instalments,  it  was  held  by  Lord 
Eldon,  C,  that  the  creditor's  right  against  the  surety  was  gone, 
and  an  injunction  was  granted  against  the  surety  being  sued  on 
the  bond.  So  even  if  Charles  Mayor  could  have  been  sued  at  law 
upon  this  note,  still  the  effect  of  the  transaction  was  to  give  time, 
at  least  until  the  22nd  of  June,  1864,  because  until  then  no  Court 
of  equity  would  have  allowed  the  creditors  to  have  sued  Charles 
Mayor  for  any  part  of  the  £650.  But,  moreover,  it  is  submitted, 
the  deed  is  conclusive  and  can  alone  be  looked  to,  and  that  parol 
evidence  to  show  that  the  note  was  taken  by  the  plaintiffs  by 
way  of  collateral  security  is  not  admissible.  JEx  parte  GlendeTi- 
ning,  Buck's  Cases,  517,  and  the  opinion  of  Bailey,  J.,  in  Levns 
V.  Jones,  4  B.  &  C.  506  (28  R  R  360),  are  authorities  to  that 
effect 

[Keating,  J.  —  Without  parol  evidence,  how  is  the  deed  con- 
nected with  the  note  so  as  to  be  any  defence  to  an  action  on  the 
note?] 

The  money  secured  by  the  note  is  part  of  the  sum  secured  by  the 
deed. 

Huddleston  and  T.  Salter  appeared,  but  were  not  heard,  in  sup- 
port of  the  rule. 

Erle,  Ch.  J.  —  I  think  that  the  rule  should  be  made  absolute  to 
enter  a  verdict  for  the  plaintiffs.  The  action  was  upon  a  joint  and 
several  promissory  note  made  by  the  defendants  as  sureties  for 
Charles  Mayor  for  the  sum  of  £150  advanced  to  him  as  part  of  a 
loan  of  £650,  the  other  £500  being  secured  by  a  mortgage  of  some 
property,  and  by  a  policy  of  insurance.     The  mortgage  deed  was 


B.  C.  VOL.  XVII.]  MERGER.  371 

Ko.  2.  —  Booler  ▼.  ICayor,  84  L.  J.  C.  P.  282,  233. 

to  comprise  the  whole  £650 ;  but  the  mortgage  not  being  a  suffi- 
cient security  for  more  than  £500,  Charles  Mayor  and  the  lenders 
agreed  that,  in  addition  to  the  mortgage  deed,  there  should  be  a 
promissory  note  given  for  £150  payable  on  demand  with  two  addi- 
tional names,  these  being  those  of  the  two  Mayors  who  are  the 
present  defendants.  The  promissory  note  was  made  on  the  6th  of 
December,  and  the  deed  was  executed  on  the  22nd  of  December, 
the  note  being  payable  on  demand,  and  the  deed  in  June  the  fol- 
lowing year.  Then,  it  is  said,  that  this  debt,  due  from  the  two 
sureties  who  signed  the  note,  is  merged  in  the  deed  which 
was  executed  by  Charles  *  Mayor,  one  of  the  makers  of  [*  233] 
the  note.  I  think  it  is  very  clear  that  it  was  not  so 
merged,  because  the  deed  is  between  different  parties  for  a  different 
sum  payable  at  a  different  time  and  with  different  interest ;  and  I 
take  the  case  of  Sharpe  v.  GHhbs  as  sufficient  to  show  that  as  be- 
tween Charles  Mayor  and  the  lenders  the  deed  did  not  meige  the 
promissory  note  in  the  specialty.  To  do  so  would  be  utterly  con- 
trary to  the  intention  of  the  parties.  Still,  if  the  law  was  so  the 
law  must  have  its  way ;  but  I  think,  according  to  the  law,  that, 
in  this  case,  as  the  specialty  was  not  coextensive  with  the  prom- 
issory note,  the  latter  did  exist  as  a  collateral  security  and  was 
not  merged.  Then,  was  there  time  given  to  Charles  Mayor,  the 
principal  debtor,  so  as  to  operate  as  a  discharge  to  his  sureties  ? 
The  deed  contains  a  covenant  that  Charles  Mayor  will  pay  in 
June,  that  is,  six  months  after  the  deed  was  executed,  and  the 
promissory  note  was  payable  instanter,  I  think  also  that  the 
covenant  to  pay  in  June  operated  so  as  to  prevent  an  action  for 
breach  of  such  covenant  before  June ;  but  there  is  no  stipulation 
in  such  deed  that  the  creditors  lending  the  money  would  not  put 
in  force  any  other  remedy  they  might  have  before  that  time.  It 
seems  to  me,  therefore,  that  the  deed  did  not  operate  to  give  time 
to  the  principal  so  as  to  discharge  the  sureties.  The  cases  which 
have  been  cited  by  Mr.  Cave  about  the  effect  of  a  mortgage-deed 
were  soundly  decided  in  respect  of  the  facts  then  before  the  Court. 
A  Court  of  equity  must  give  effect  to  what  it  considers  is  the  in- 
tention of  the  parties  in  respect  of  the  mortgage  deed ;  and  so  in 
the  present  case  I  think  our  judgment  does  give  effect  to  the 
intention  of  the  parties ;  and  with  regard  to  the  admissibility  of 
parol  evidence  to  show  what  was  the  intention  of  the  parties,  it 
was  well  observed  by  my  Brother  Keating,  that  the  promissory 


374  MERGER. 

Ko.  2.  —  Boaler  ▼.  ICayor.  —  Hotel. 

ENGLISH  NOTES. 

In  Wliite  V.  Cuyler  (1795),  6  T.  E.  176,  3  K.  K.  147,  the  wife  of 
the  defendant  employed  the  plaintiff,  and  the  terms  of  the  employment 
were  contained  in  articles  under  seal  executed  by  the  defendants'  wife 
and  one  Law.  The  plaintiff  sued  the  defendant  in  assumpsit,  and  the 
action  was  held  maintainable,  as  the  contract  under  seal  of  a  surety 
does  not  extinguish  the  debt  of  the  principal.  To  the  same  effect  is 
Holrnes  v.  Bell  (1841),  3  Man.  &  Gr.  213.  There  a  bank  took  from 
its  customer  and  a  third  person  a  bond  conditioned  for  the  payment  of  all 
sums  already  advanced,  or  thereafter  to  be  advanced,  to  the  customer. 
The  liability  of  the  customer  to  be  sued  in  assumpsit  was  not  merged 
in  the  bond. 

East  India  Co.  v.  Lewis  (1828),  3  Car.  &  P.  358,  33  K.  R.  680,  is 
an  example  of  merger  of  a  simple  contract  debt  in  a  specialty. 

In  Davies  v.  Eees  (C.  A.  1886),  17  Q.  B.  D.  408,  55  L.  J.  Q.  B.  363, 
54  L.  T.  813,  34  W.  R.  573,  the  defendant  was  assignee  of  a  bill  of 
sale,  and  had  wrongfully  seized  certain  chattels  comprised  in  the  bill 
of  sale.  The  grantor  of  the  bill  of  sale  had  covenanted  to  pay  interest 
at  fifty-eight  per  cent.  In  an  action  for  the  wrongful  seizure  and  con- 
version of  the  chattels,  the  defendant  counter-claimed,  suing  on  the 
covenant  for  payment.  Judgment  was  given  for  the  sum  advanced  and 
interest  at  five  per  cent.  The  ground  of  the  decision  was  that  the  bill 
of  sale  was  absolutely  void,  and  that  the  covenant  had  also  fallen  with 
the  bill  of  sale. 

AMERICAN  NOTES. 

This  case  is  cited  in  15  Am.  &  Eng.  Enc.  of  Law,  p.  356 ;  2  Daniel  on 
Negotiable  Instruments,  sect.  1322 ;  Brandt  on  Suretyship,  sect.  376. 

Where  a  contract  for  a  deed  contains  agreements  collateral  to  and  apart 
from  the  giving  of  a  deed,  they  are  not  merged  in  the  deed.  Wiiheck  v.  Waine^ 
16  New  York,  532.    See  Pike  v.  Pike,  69  Vermont,  535. 

The  doctrine  that  giving  time  to  the  principal  does  not  discharge  the  surety 
if  the  remedies  against  him  are  expressly  reserved  is  well  settled.  Clagget  v. 
Salmon,  5  Gill  &  Johnson  (Maryland),  314;  Austin  v.  Gibson,  28  Up.  Can.  C. 
P.  554 ;  Canadian  Bank  v.  Northwood,  14  Ontario,  207 ;  Currie  v.  HodginSy  42 
Up.  Can.  Q.  B.  601 ;  Hagey  v.  HUl,  75  Penn.  State,  108;  15  Am.  Rep.  583, 
citing  the  principal  case ;  Rockville  Nat.  Bank  v.  Holt,  58  Connecticut,  526 ; 
18  Am.  St.  Rep.  293,  citing  the  principal  case ;  Jones  v.  Sarchett,  61  Iowa, 
620 ;  Mueller  v.  Dobschutz,  89  Illinois,  176 ;  Morse  v.  Huntington,  40  Vermont, 
488;  Rucker  v.  Robinson,  38  Missouri,  154;  90  Am.  Dec.  412 ;  First  Nat.  Bank 
V.  Lineberger,  83  North  Carolina,  454 ;  35  Am.  Rep.  582 ;  Kenworthy  v.  Sawyer, 
125  Massachusetts,  28. 

See  Jones  r.  Johnson,  3  Watts  &  Sergeant,  276;  38  Am.  Dec.  760;  Davis  v. 
AndbU,  2  Hill  (N.  Y.),  339;  UnUed  States  v.  Lyman,  1  Mason  (U.  S.  Circ.  Ct), 
482. 


B.  C.  VOL.  XVII.]  MERGER.  375 

Ko.  8.  —  JonM  ▼.  Davies,  31  L.  J.  Ex.  116, 117. — Bole. 

No.  3.— JONES  V,  DAVIES. 
(ex.  ch.  1861.) 

RULE 

In  order  that  there  may  be  a  merger  of  estates,  the  two 
estates  must  be  held  in  the  same  right. 

Jones  y.  Davies  and  Wife. 

31  L.  J.  Ex.  116-118  (8.  c.  7  Hurl.  & N.  507;  8  Jur.  (N.  S.)  592;  6  L.  T.  442;  10  W.  R.  464). 

HjedmenU  ^Merger,  —  Term  of  Years  of  Husband.  —  Wife's  Estate  [116] 
in  Fee.  —  Tenancy  by  the  Curtesy. 

If  husband  and  wife  have  issue,  and  the  wife  take  by  devise  an  estate  in  fee 
in  certain  lands,  and  so  the  husband  become  tenant  by  the  curtesy  initiate,  a 
term  for  years  which  the  husband  previously  had  in  the  same  lands  will 
not,  during  the  wife's  life,  merge  either  *  in  his  estate  as  such  tenant  by  [*117] 
the  curtesy,  or  in  the  estate  which  he  has  in  the  lands  in  right  of  his 
wife. 

In  this  case  (an  action  of  ejectment),  a  verdict  having  been 
directed  for  the  defendants,  and  a  rule  having  been  moved  for  to 
enter  a  verdict  for  the  plaintiff,  the  Court  of  Exchequer  discharged 
the  rule.     [29  L.  J.  Exch.  374]. 

Against  this  decision  the  plaintiff  appealed. 

The  following  summary  of  the  facts  will  explain  the  point  in 
question. 

Davies,  the  husband,  in  1844  became  lessee  of  the  lands  in 
question  for  a  term  of  twenty-one  years.  Some  years  afterwards 
the  lessor  by  his  will  devised  to  Mrs.  Davies,  the  wife,  the  fee  of 
the  same  lands,  charged  with  an  annuity  to  the  plaintiff,  with  a 
provision  for  entry  in  case  of  non-payment  The  defendant  and 
his  wife  had  several  children.  The  lessor  being  dead,  and  the 
annuity  being  in  arrear,  the  action  was  brought  under  the  pro- 
vision in  the  will. 

Garth,  for  the  appellant,  the  plaintiff  below  (Nov.  30,  1861), 
contended  that  the  action  lay,  that  the  term  of  years  of  Davies, 
the  husband,  merged  in  the  estate  of  the  freehold  for  his  own  life, 
which  he  took  in  his  own  right  as  tenant  by  the  curtesy;  that, 
although  Lord  Coke,  1  Inst.  p.  30  a,  speaks  of  the  estate  of  a 
tenant  by  the  curtesy  as  "  initiate  "  only,  and  not  "  consummate," 


376  MERGER. 

Ko.  8.  —  JouM  ▼.  BtMM,  81  L.  J.  Ex.  117. 

until  the  death  of  the  wife,  yet  that  it  existed  as  a  distinct  estate 
in  the  husband  in  his  own  right  sufficient  to  cause  the  merger. 

[Blackburn,  J.  — In  Coke's  Entries,  "  Quare  Impedit,"  520,  it 
is  pleaded  the  husband  became  tenant  by  the  curtesy  after  the 
death  of  the  wife.  The  pleader  evidently  thought  that  the  free- 
hold did  not  arise  till  the  death  of  the  wife.] 

He  further  urged  that,  even  if  the  husband  had  only  an  estate 
in  right  of  his  wife,  still  that  the  term  merged  in  that  estate,  as 
the  estate  came  to  him  by  purchase,  and  not  by  descent.  He 
referred  to  the  authorities  cited  in  the  Court  below. 

The  Court  took  time  to  consider  whether  it  was  necessary  to 
hear  argument  on  the  other  side.  It  was  now  (Dec  2)  stated  by 
the  Court  that  they  did  not  require  further  argument 

Bovill,  for  the  respondents,  the  defendants,  was  therefore  not 
heard. 

The  judgment  of  the  Court  (Wightman,  J.,  Williams,  J., 
Crompton,  J.,  WiLLEs,  J.,  Byles,  J.,  Keating,  J.,  and  Black- 
burn, J. )  was  delivered  by  — 

Wightman,  J.  —  We  are  of  opinion  that  the  judgment  of  the 
Court  of  Exchequer  in  this  case  was  correct,  and  that  there  was 
no  merger  of  the  term  of  twenty -one  years  created  by  the  lease  to 
Davies;  but  that  it  is  still  subsisting,  and  a  bar,  as  long  as  it 
exists,  to  the  plaintiflf's  right  of  entry. 

It  is  clear,  upon  the  authorities  referred  to  upon  the  argument, 
that  the  devise  in  fee  to  the  wife  subsequent  to  the  lease  for  years 
to  the  husband  would  not  operate  as  a  merger  of  the  term,  because 
the  husband  would  have  the  term  in  his  own  right,  and  the  free- 
hold in  right  of  his  wife ;  and  that  to  create  a  merger  the  term  and 
the  freehold  must  exist  in  one  and  the  same  right.  It  was  said, 
indeed,  that  if  the  freehold  was  acquired  by  the  act  of  the  hus- 
band himself,  and  not  by  operation  of  law,  there  might  be  a 
merger.  However  this  may  be  in  some  cases,  there  appears  to  us 
to  be  no  ground  whatever  for  the  argument,  that  in  this  case  the 
husband  acquired  an  estate  of  freehold  by  his  own  act.  The  estate 
was  devised  to  his  wife  in  fee,  and  no  act  was  required  on  his  part 
to  make  it  vest  in  him  and  his  wife,  in  right  of  the  wife.  Whether 
he  assented  or  not,  provided  he  did  not  dissent,  the  estate  would 
vest,  as  appears  clearly  from  the  passage  in  Co.  Lit  3  a,  cited  in 
the  case  of  Bamfather  v.  Jordan^  2  Dougl.  451.  It  was  further 
contended,  for  the  plaintiff,  that  even  if  the  estate  in  fee  devised 


B.  C.  VOL.  XVII.]  MERGER.  377 

Ko.  8.  —  Jones  ▼.  Davies,  81  L.  J.  Sz.  117,  118.  —  Kotee. 

to  the  wife  would  not  operate  to  merge  the  term  for  years  previ- 
ously granted  to  the  husband,  he  had  acquired  an  independent  and 
separate  estate  of  freehold  in  himself  as  tenant  by  the  curtesy,  in 
which  the  term  would  merge.  We  are,  however,  of  opinion,  in 
accordance  with  that  of  the  Court  of  Exchequer,  that  whatever 
might  have  been  the  case  had  the  wife  died,  the  husband  during  her 
life  has  not  such  an  estate  of  freehold  in  his  own  right  as  would 
merge  the  term.  It  is  only  upon  the  death  of  the  wife  that 
the  husband  becomes  tenant  *  by  the  curtesy  in  the  proper  [*  118] 
sense  of  the  term.  It  is  said,  in  Co.  Lit.  30  a,  that  four 
things  belong  to  an  estate  of  tenancy  by  the  curtesy ;  namely,  mar- 
riage, seisin  of  the  wife,  issue,  and  death  of  the  wifa  During  the 
life  of  the  wife  he  is  only  what  is  called  **  tenant  by  the  curtesy 
initiate, "  and  as  such  is  respected  in  law  for  some  purposes  which 
are  enumerated  by  Lord  Coke ;  but  he  is  not  tenant  by  the  curtesy 
"  consummate, "  so  as  to  give  him  a  separate  and  independent 
estate  of  freehold  until  the  death  of  the  wife.  And  we  are  not 
aware  of  any  authority  for  holding  that  until  the  death  of  the 
wife  a  tenancy  by  the  curtesy  **  initiate  "  would  be  such  an  estate 
of  freehold  in  the  husband,  separate  from  and  independent  of  the 
estate  in  fee  of  which  he  and  his  wife  were  seised  in  right  of  the 
wife  as  would  merge  the  term.  The  judgment  of  the  Court  of 
Exchequer,  therefore,  will  be  affirmed.  JvdgmemJt  affirmed. 

ENGLISH  NOTES. 

By  the  Judicature  Act,  1873  (36  &  37  Vict.,  c.  66),  s.  25  (4),  it  is 
enacted:  "There  shall  not  after  the  commencement  of  this  Act  (t.  e.y 
the  Ist  Nov.,  1875),  be  any  merger  by  operation  of  law  only  of  any 
estate,  the  beneficial  interest  in  which  would  not  be  deemed  to  be 
merged  or  extinguished  in  equity."  There  has  accordingly  been  ex- 
cluded from  this  note  a  number  of  cases,  which  prior  to  this  enactment 
must  have  been  considered. 

A  saving  clause  in  the  Statute  of  Uses  (27  Hen.  VIII.,  c.  10)  may  also 
be  conveniently  disposed  of.  It  is  at  the  end  of  section  2,  and  is  as  fol- 
lows: "And  also  saving  to  all  and  singular  those  persons,  and  to 
their  heirs  which  be  or  hereafter  shall  be  seized  to  any  use,  all  such 
former  right,  title,  entry,  interest,  possession,  rents,  customs,  services, 
and  action  as  they  or  any  of  them  might  have  had  to  his  or  their  own 
proper  use,  in  or  to  any  manors,  lands,  tenements,  rents,  or  heredita- 
ments, whereof  they  be  or  hereafter  shall  be  seised  to  any  other  use,  as 
if  this  present  Act  had  never  been  had  or  made;  anything  contained  in 


378  MERGEB. 

Ko.  8.  —  Jones  ▼.  DaviM. — Votes. 

this  Act  to  the  contrary  notwithstanding."  This  proviso  has  received 
a  wide  and  favourable  construction,  and  although  the  proviso  is  couched 
in  the  words  **  seized  to  any  other  use,''  has  been  construed  to  extend 
to  chattel  interests.  Cheynexfs  Cast  (1585),  Moore,  196,  2  Anders.  192. 
There  Cheyney  leased  for  years  to  two  in  trust  for  his  (Cheyney's)  wife. 
Subsequently  Cheyney  enfeoffed  one  of  the  termors  and  others  to  certain 
uses.  The  Court  of  Wards  held  that  the  term  was  saved  by  the 
proviso  in  the  statute.  Ferrers  v.  Fennor  (1623),  Cro.  Jac.  643,  2 
Bolle's  Rep.  245,  was  a  peculiar  case.  There  a  conveyance  (by  way  of 
bargain  and  sale  and  fine)  of  a  freehold  interest  was  made  to  a  termor 
and  others  to  make  a  tenant  to  the  proectpe,  for  the  purpose  of  suffer- 
ing a  recovery  in  performance  of  a  covenant.  It  seems  to  have  been 
agreed  on  all  hands  that  the  term  had  merged.  But  the  Court  held 
that  when  the  recovery  was  suffered  the  term  revived.  The  ground  of 
the  decision  was  that  the  bargain  and  sale,  fine  and  recovery,  were  to- 
gether but  one  assurance. 

Merger  only  applies  to  estates,  and  not  to  mere  rights.  Doe  d,  RawU 
ings  V.  Walker  (1826),  6  B.  &  C.  Ill,  29  R.  R.  184.  There  the 
lessee  of  premises  took  a  reversionary  lease  for  years.  Prior  to  the  date 
fixed  for  the  commencement  of  the  reversionary  lease,  the  lessee  acquired 
an  estate  for  life  in  the  premises,  and  conveyed  this  estate.  It  was 
held  that  as  he  had  merely  an  interesse  terminij  there  could  be  no 
merger.  It  is  to  be  noticed  that  in  Doe  d,  RawUngs  v.  Walker  the 
second  lease  was  still  reversionary  at  the  date  when  the  termor  conveyed 
his  life  estate.  The  point  adverted  to  in  Doe  d.  Rawlings  v.  Walker 
does  not  seem  to  have  been  raised  in  Stephens  v.  Brydges  (1821),  6 
Madd.  66,  22  R.  R.  242.  There  a  mortgage  term  waa  created  in  1720 
for  one  thousand  years.  The  persons  in  whom  the  term  became  vested 
took  an  assignment  of  another  mortgage  term  in  the  same  premises 
created  in  1725  for  five  hundred  years.  Both  these  terms  were  then 
assigned  to  the  trustees  of  a  marriage  settlement.  Leach,  Y.  C,  held 
that  the  term  of  one  thousand  years  was  merged  in  the  reversionary 
term  of  five  hundred  years.  It  nowhere  appears  in  the  report  that  the 
termors  of  the  respective  terms  had  entered. 

Merger  takes  place  by  operation  of  law.  Thus  if  lands  stand  limited 
to  husband  and  wife  (A.  and  B.)  for  life,  remainder  to  their  first  and 
other  sons  in  tail,  remainder  to  the  heirs  of  A.  and  B.,  remainders  over; 
here  A.  and  B.  take  an  estate  tail  sub  inodo,  that  is,  until  the  birth  of 
a  son,  when  the  estates  are  divided :  —  so  that  A.  and  B.  become  ten- 
ants for  their  lives,  remainder  to  the  issue  male  in  tail,  remainder 
to  the  heirs  male  of  A.  and  B.  Lewis  Bowles^  Case  (1616),  11  Co, 
Rep.  79.  And,  although  an  estate  pur  auter  vie  is  inferior  to  an 
estate  for  a  man's  own  life^  yet  a  lease  to  one  and  his  assigns,  habendum 


B.  C.  VOL.  XVII.]  MERGER.  379 

Ko.  8.  —  Jones  ▼.  Baviai. — Votes. 

to  him  during  his  life  and  the  lives  of  B.  and  C,  is  a  lease  for  three 
lives  and  the  lives  of  the  survivors.  Rosse^s  Case  (1599),  5  Co.  Rep. 
13,  Moore,  398,  pi.  521.  An  estate  by  descent  would  effect  a  merger. 
HaHpole  V.  Kent  (1677),  T.  Jones,  76,  1  Vent.  306,  Pollexf.  199. 

In  order  that  merger  may  take  place,  the  two  estates  must  meet  in 
the  same  person  without  any  intervening  estate.  Whitchurch  v. 
Whitchurch  (1724),  2  P.  Wms.  236;  Scott  v.  Fenhoullet  (1779), 
1  Bro.  C.  C.  69;  Webb  v.  JRussell  (1789),  3  T.  R.  393,  1  R.  R.  725; 
Doe  d,  Daniel  v.  Wqodroffe  (H.  L.  1849),  2  H.  L.  Cas.  811,  13  Jur. 
1013.  Formerly  the  intervening  estate  must  have  been  vested ;  for  a 
merger  would  in  certain  events  have  destroyed  the  intervening  estates, 
if  contingent  remainders.  This,  however,  is  no  longer  the  case  by 
express  statutory  provision  (8  &  9  Vict.,  c.  106,  s.  8). 

There  is  only  one  case  in  which  a  less  estate  will  not  merge  in  a 
larger  estate.  That  is  the  case  of  an  estate  tail,  which,  upon  the  con- 
struction of  the  statute  De  Donis  (13  Ed.  I.  c.  1),  is  held  not  to  merge 
in  the  fee.  This  was  decided  in  27  Ed.  III.,  27  Ass.  60;  Wiscots' 
Case  (1599),  2  Co.  Rep.  60,  Cro.  Eliz.  470,  481;  Eoe  d.  Crow  v.  Bald- 
were  (1793),  5  T.  R.  104,  2  R.  R.  550.  One  change  has  been  effected  by 
the  Fines  and  Recoveries  Act  (3  &  4  Will.  IV.,  c.  74),  s.  39.  Prior  to 
this  enactment  a  base  fee  would  have  merged  upon  union  with  an 
immediate  reversion  in  fee.  See  Lord  SheUmme  v.  Biddulph  (H.  L. 
1748),  6  Bro.  P.  C.  356;  Boe  d.  Crow  v.  Baldwere,  supra.  But  any 
intermediate  interest  would  have  prevented  a  merger.  Doe  d,  Daniel 
V.  Woodroffe  (H.  L.  1849),  2  H.  L.  Cas.  811,  13  Jur.  1013.  The  effect 
of  merger  was  to  let  in  the  ancestor's  charges.  Lord  Shelbume  v.  Bid- 
dulph; Eoe  d.  Crow  v,  Baldwere,  supra;  Real  Prop.  Commrs.,  1st 
Report,  p.  28.  The  effect  now  is  that  the  base  fee  does  not  merge,  but 
is  ipso  facto  enlarged  into  as  large  an  estate  as  a  tenant  in  tail  with  the 
consent  of  the  protector,  if  any,  might  have  created  by  any  disposition 
under  the  Act,  if  the  remainder  or  reversion  had  been  vested  in  any 
other  person. 

Next  as  to  quality  of  estate.  An  equitable  estate  will  in  general 
merge  in  the  legal  estate.  Ooodright  d,  Alston  v.  Wells  (1781),  Dougl. 
741 ;  Selby  v.  Alston  (1797),  3  Ves.  339,  4  R.  R.  10. 

The  subject  of  attendant  terms  will  be  dealt  with  in  the  next  note. 

AMERICAN  NOTES. 

This  case  is  cited  in  15  Am.  &  Eng.  Enc.  of  Law,  p.  817,  with  other  English 
cases ;  1  Washburn  on  Real  Property,  p.  587. 

Merger  of  estates  takes  place  only  where  two  estates  unite  in  one  person  in 
the  same  right.  Pool  v.  Morris^  29  Georgia,  374 ;  74  Am.  Dec.  68 ;  Pratt  v. 
Bank  of  Bennington,  10  Vermont,  293 ;  33  Am.  Dec.  201 ;  Flanigan  v.  SabU^ 
44  Minnesota,  417. 


380  MEBGEK. 

No.  4.  —  Forbes  ▼.  Moffan ;  Kotfatt  ▼.  ^■-"'^^,  18  Yei.  884,  885.  — Bnlo. 


Washburn  says :  "  But  if  the  estate  accrue  in  different  rights,  merger  wifl 
take  place  where  the  accession  is  by  the  act  of  the  parties,  but  not  where  it  is 
by  act  of  law"  (citing  Clift  v.  White,  15  Barbour  [N.  Y.  Sup.  Ct.J  70,  which 
however  is  reversed  in  12  New  York,  519) ;  « thus  if  an  executor  who  has  the 
reversion  in  his  own  right  becomes  possessed,  as  executor,  of  a  term  for  years, 
the  two  will  not  merge ;  and  it  is  well  settled,  that  if  a  husband  has  a  freehold 
in  reversion,  and  his  wife  acquires  a  term  for  years,  the  term  will  not  merge, 
although  he  has  the  complete  power  of  disposal  of  such  term.*' 


No.  4  — FOEBES  v.  MOFFATT. 

MOFFATT  V.  HAMMOIO). 
(CH.  1811.) 

RULE. 

The  merger  of  charges  in  a  freehold,  whether  upon  the 
acquisition  or  payment  off  of  the  charge,  or  acquisition  of 
the  estate,  depends  upon  the  intention  of  the  party  in 
whom  the  freehold  and  charge  are  vested.  And  this  in- 
tention may  be  inferred  from  a  consideration  of  the  ques- 
tion whether  it  will  be  for  the  benefit  of  the  owner  of  the 
charge  that  merger  should  or  should  not  take  place. 

Forbes  v.  Hoffatt. 
Hoffatt  y.  Hammond. 

18  Yes.  384-394  (11  R.  R.  222). 

Merger* — Mortgage,  —  Presumed  Intention, 

[884]       Mortgage  not  merged  by  union  with  the  fee :  the  actual  intention,  not 
established  by  the  acts  of  the  party,  presumed  from  the  greater  advantage 
against  merger  in  favour  of  the  personal  representative. 

By  indentures  of  lease  and  release,  dated  the  7th  and  8th  of 
April,  1785,  reciting  the  will  of  Andrew  Mofifatt,  that  the  sum  of 
£27,000  was  due  to  his  estate  from  Aaron  Mo£fatt;  and  that  James 
Mofifatt  and  Hindman,  the  executors  of  Andrew,  had  agreed 
[*  385]  to  lend  the  *  further  sum  of  £12,000  upon  a  mortgage  of 
all  the  estates  of  Aaron  Mofifatt  in  Jamaica :  to  secure  both 
the  said  sums,  John  Mofifatt,  the  brother  of  Aaron,  being  a  party, 
and  agreeing  to  postpone  a  debt  of  £13,000,  due  to  him  by  Aaron, 


B.  C.  VOL.  XVn.]  MERGER,  381 

No.  4.  —  Forbes  ▼.  XoffAtt;  Xoffatt  ▼.  Hanmumd,  18  Ves.  885,  886. 

to  the  said  intended  advance  of  £12,000  in  consideration  of  the  said 
sum  of  £12,000,  and  to  enable  the  executors  of  Andrew  Moflfatt  to 
obtain  an  immediate  security  for  the  said  debt  of  £27,000,  Aaron 
Moffatt,  with  the  consent  of  John  Moffatt,  ponveyed  to  James 
Moffatt  and  Hindman,  and  their  heirs,  the  plantation  of  Blen- 
heim, &c ,  and  all  other  the  estates  of  Aaron  Moffatt  in  Jamaica, 
subject  to  the  payment  of  the  sum  of  £12,000;  and  the  same 
estates  were  conveyed  to  James  Moffatt,  Hindman,  and  John 
Moffatt,  and  their  heirs,  subject  to  the  said  mortgage  for  £12,000, 
and  to  a  proviso  for  redemption  on  payment  to  James  Moffatt 
and  Hindman  of  £27,000,  and  to  John  Moffatt  of  £13,000. 

Aaron  Moffatt  died  in  1797;  having  by  his  will,  dated  in 
1795,  given  all  his  property,  real  and  personal,  to  his  brother 
John  Moffatt,  and  appointed  him  sole  executor.  John  Moffatt 
died  in  1807,  intestate  and  without  issue. 

The  bill  in  the  first  cause  was  filed  by  Forbes  and  Elizabeth 
Moffatt,  executors  of  James  Moffatt,  the  surviving  executor  of 
Andrew;  praying  an  account  as  to. the  mortgage  for  £27,000,  and 
a  foreclosure ;  charging  that  John  Moffatt,  taking  possession  under 
the  will  of  Aaron,  became  the  absolute  owner  of  the  premises, 
that  his  mortgage  was  thereby  extinguished,  and,  the  charge  of 
£12,000  being  paid,  the  £27,000  was  the  only  subsisting 
mortgage. 

The  defendant  Sarah  Moffatt,  the  widow  of  John,  by 
her  answer  insisted  upon  the  mortgage  for  £13,000  *as  [*386] 
still  subsisting ;  and  prayed  a  sale,  and  an  application  of 
the  produce  to  the  two  mortgages  pari  passu. 

The  bill  in  the  other  cause  was  filed  by  Sarah,  the  widow  of 
John  Moffatt,  and  by  his  next  of  kin,  against  the  plaintiffs  in  the 
first  cause,  and  against  Elizabeth  Hammond  and  Martha  Bayard, 
the  next  of  kin  of  John  Moffatt,  and  his  co-heiresses  at  law,  in 
whom  the  legal  estate  was  vested  under  the  first  mortgage ;  pray- 
ing an  account  with  reference  to  the  sum  of  £13,000  and  a 
foreclosure. 

The  acts  of  John  Moffatt,  from  which  his  intention  not  to  con- 
sider himself  a  mortgagee  was  collected,  were  possession  taken 
upon  the  death  of  Aaron ;  considerable  expenditure  upon  the  estate, 
and  the  sale  of  some  parts;  the  payment,  as  executor  of  his 
brother,  of  £5000,  on  the  mortgage  account,  generally,  without 
distinction  of  the  two  mortgages;  that  sum  exceeding  by  about 


3S2  MERGEB. 

No.  4.  — ForiMS  ▼.  Motfatt;  MoCfatt  ▼.  Fammond,  18  Yes.  886,  887. 

£500  the  balance  in  his  hands  from  the  produce  of  the  real  estate : 
on  the  other  hand,  the  registry  of  the  mortgage  deed  in  Jamaica, 
after  the  death  of  Aaron,  was  relied  on  by  the  personal  represent- 
atives ;  and  accounts  kept  of  the  annual  supplies  and  produce  of 
the  estate,  entitled  **  the  estate  of  Aaron  Mo£fatt,  deceased,  in 
account  current  with  John  Moffatt.  * 

The  bill  in  the  second  cause  alleged  that  the  mortgage  deed 
was  not  recorded  in  the  Island  of  Jamaica  until  after  the  death 
of  Aaron  Moffatt  at  his  request;  that  the  estates,  sold  by  John 
Moffatt,  were  not  named  or  considered  by  him  as  part  of  the 
security ;  and  that  the  sum  of  £5000  was  paid  only  in  part  of  the 
arrears  due.  The  answer  relied  on  the  general  words,  as  compris- 
ing all  the  estates  in  the  security. 
[*387]  *Mr.  Martin  and  Mr.  Trower,  for  the  representatives 
of  Andrew  Moffatt,  plaintiffs  in  the  first  cause ;  Mr.  Leach 
and  Mr.  Home  for  the  co-heiresses-at-law  of  John  Moffatt;  Sir 
Arthur  Piggott,  Sir  Samuel  Eomilly,  Mr.  Heald,  and  Mr.  Eaithby 
for  the  other  parties  claiming  his  personal  property. 

For  the  representatives  of  Andrew  Moffatt,  and  the  co-heiresses 
of  John. 

A  mortgagee  having  acquired  the  equity  of  redemption,  the 
effect  is,  that  his  interest  ceases  to  be  considered  as  a  mortgage ; 
unless  by  some  clear  act,  equivalent  to  a  declaration,  he  evinces 
his  intention  to  keep  alive  the  charge.  The  circumstance,  that 
the  original  mortgage  in  this  instance  was  of  an  equity  of  redemp- 
tion, makes  no  difference ;  and  the  Court  will  treat  it  precisely  as 
a  legal  estate  under  the  same  circumstances.  The  mortgagee  taking 
the  estate  under  his  brother's  will,  and  having  a  right  as  between 
his  own  representatives  to  keep  the  charge  still  subsisting,  which, 
if  he  does  not  manifest  that  intention,-  would  be  considered  as 
extinguished,  they  must  show  that  intention.  What  third  person 
here  has  a  right  to  say,  this  is  money  ?  John  Moffatt,  being  the 
only  person  responsible  for  this  debt,  the  sole  possessor  of  the 
funds  applicable  to  its  discharge,  and  continuing  for  several  years 
to  unite  in  his  own  person  the  characters  of  debtor  and  creditor, 
no  rational  purpose,  for  which  he  should  wish  the  mortgage  to 
exist,  can  be  stated. 

This  does  not,  however,  rest  upon  the  accidental  union  of  char- 
acters in  the  individual,  but  is  confirmed  by  his  acts.  The  acts 
of  entering  into  possession,  and  selling  parts  of  the  estate,  simply 


B.  C.  VOL.  XVn.]  MERGER.  383 

No.  4.  —  Forbes  ▼.  Moff att ;  Moff att  ▼.  WaTninimd,  18  Vei.  887-388. 

stated,  though  they  may  assist  in  forming  the  conclusion, 
are  not  decisive ;  *  but  possession  taken,  not  in  the  usual  [*  388] 
way  as  a  mortgagee,  must  be  referred  to  the  devise ;  and, 
as  evidence  of  the  intention  to  accept  it,  goes  far  towards  the 
conclusion,  that  he  did  not  mean  the  mortgage  to  continue,  —  a 
conclusion  confirmed  by  the  sales  which  followed.  If  the  posses- 
sion could  be  referred  to  the  mortgage,  he  would  be  a  mere  trustee 
for  himself  and  the  others;  and  can  it  be  conceived  that  any 
person  holding  possession  as  a  trustee  would  proceed  to  expend 
on  improvements,  not  only  the  produce  of  the  estate,  but  beyond 
that  a  considerable  sum,  his  own  property,  without  any  communi- 
cation with  the  cestui  que  trust  ? 

With  regard  to  the  other  fact  stated,  that  he  sold  parts  of  these 
estates,  conveying  them  in  fee  simple,  as  mortgagee  he  could  sell 
only  subject  to  the  equity  of  redemption.  If  it  was  necessary  to 
show  acts  inconsistent  with  his  character  of  mortgagee,  these  acts 
are  directly  so;  but  to  these  acts  of  John  Moff  att  are  opposed, 
first,  the  accounts  kept  by  him,  and  their  title,  "  the  estate  of 
Aaron  Moffatt  deceased,  in  account  current  with  John  Moffatt " 
This  account,  showing  only  the  annual  supplies  sent  out  to  the 
estate,  and  the  produce,  proves  nothing  inconsistent  with  the  in- 
tention as  between  the  representatives  not  to  consider  the  mort- 
gage as  subsisting.  It  was  not  unlikely  that  the  parties  taking 
the  estate  might  wish  to  see  how  that  account  stood.  Uniting  in 
himself  the  two  characters  of  real  and  personal  representative, 
he  might  conceive  that  it  was  necessary  for  him  to  keep  such  an 
account,  in  case  he  should  be  called  on  by  other  creditors  of 
Aaron.  This,  therefore,  affords  no  evidence  against  the  general 
rule,  that,  if  an  intention  to  keep  alive  the  incumbrance  is  not 
manifest,  the  contrary  must  be  presumed. 

As  to  the  payment  of  £5000,  whether  solely  out  of  *  the  [*  389] 
assets,  as  executor,  or  partly  out  of  the  rents,  does  not 
appear ;  instead  of  dividing  that  sum  between  the  two  mortgages 
in  the  proportions  in  which  they  were  entitled,  he  pays  the  whole 
into  the  bank ;  and  it  does  not  appear  that  afterwards  he  kept  any 
account  That  must  be  taken  as  a  payment  on  account  of  the  other 
mortgage,  and  is  conclusive  as  to  his  intention,  being  in  posses- 
sion of  the  legal  estate,  as  owner  of  the  equity  of  redemption,  not 
to  keep  alive  his  own  mortgage ;  that  he  considered  it  merged  in 
his  other  title,  and  the  £27,000  as  the  only  subsisting  mortgage. 


384  MEBGEB. 

No.  4.  —  ForboB  ▼.  Moffatt;  Moffatt  ▼.  Wammcmd,  18  Ym.  899,  890. 

Being  executor  of  Aaron,  he  had  a  right  to  retain  as  a  creditor  in 
equal  degree.  His  conduct,  therefore,  in  that  instance  is  utterly 
inconsistent  with  the  notion  that  he  was  acting  upon  the  strict 
principle  of  a  mortgagee  in  possession. 

With  regard  to  the  registry  of  the  deed,  the  intention  of  all 
parties  is  clear,  that  this,  being  a  family  transaction,  should  be 
kept  secret  during  the  life  of  Aaron,  lest  the  registry  in  Jamaica 
should  disclose  his  embarrassments.  As  executor  of  Aaron,  he 
was  bound  to  do  what  Aaron  ought  to  have  done;  and,  though 
there  were  two  mortgages,  the  deed  was  entire. 

For  the  personal  representatives  of  John  Moffatt  it  was  con- 
tended that  the  sales  and  the  payment  of  £5000,  the  only  acts 
giving  any  colour  to  the  inference  that  he  considered  his  debt  as 
extinguished,  afforded  by  no  means  a  satisfactory  conclusion :  the 
sales  being  of  parts  not  specifically  included  in  the  mortgage;  and 
the  payment  being  much  less  than  was  due  from  him,  as  personal 
representative  of  Aaron,  liable  to  account  for  all  his  personal  prop- 
erty ;  and  that  these  equivocal  acts  were  opposed  by  the  clear  acts 
of  taking  possession,  registering  the  deed,  and  keeping  the 
[*  390]  account,  as  mortgagee,  and  the  impolicy  *  of  relinquish- 
ing a  specific  lien  on  a  West  India  estate,  giving  a  prefer- 
ence to  all  debts  by  simple  contract. 

The  Master  of  the  Rolls  (Sir  Willla^m  Grant):  — 

Under  the  circumstances  of  this  case  the  question  arises  be- 
tween the  real  and  personal  representatives  of  John  Moffatt; 
whether  the  mortgage  for  the  sum  of  money  due  to  him  is  to  be 
considered  as  still  subsisting ;  in  which  case  his  personal  represent- 
atives are  entitled  to  it;  or  is  extinguished  by  the  union  of  the 
characters  of  owner  and  mortgagee  in  John  Moffatt,  or  by  any 
acts  done  by  him  after  he  became  owner. 

It  is  very  clear  that  a  person,  becoming  entitled  to  an  estate, 
subject  to  a  charge  for  his  own  benefit,  may,  if  he  chooses,  at 
once  take  the  estate,  and  keep  up  the  charge.  Upon  this  subject 
a  Court  of  equity  is  not  guided  by  the  rules  of  law.  It  will 
sometimes  hold  a  charge  extinguished,  where  it  would  subsist  at 
law;  and  sometimes  preserve  it,  where  at  law  it  would  be 
merged.  The  question  is  upon  the  intention,  actual  or  presumed., 
of  the  person  in  whom  the  interests  are  united.  In  most  in- 
stances it  is,  with  reference  to  the  party  himself,  of  no  sort  of  use 
to  have  a  charge  on  his  own  estate ;  and,  where  that  is  the  case,  it 


R.  C.  VOL.  XVII.]  MERGER,  385 

Ho.  4.— PorbM  ▼.  Mofffttt;  Kitffatt  ▼.  Hammond,  18  Veo.  890-892. 

will  be  held  to  sink,  unless  something  shall  have  been  done  by 
him  to  keep  it  on  foot 

The  first  consideration  therefore  is,  whether  John 
^Moffatt  has  done  anything  to  determine  that  election  [*391] 
which  he  undoubtedly  had ;  if  not,  the  question  will  be 
upon  the  presumption  of  law  under  the  circumstances  of  the  case. 
It  is  disputed  between  the  real  and  the  personal  representatives 
whether  John  Moffatt  took  possession  in  his  character  of  owner  or 
of  mortgagee.  It  must,  I  think,  be  taken  that  he  entered  as 
devisee.  There  is  no  trace  of  any  of  the  steps  that  a  mortgagee 
takes  to  get  in  possession.  He  sold  parts  of  the  estates,  which, 
though  not  specifically  named  in  the  mortgage,  were  included  in 
it  by  general  words ;  and  as  to  his  keeping  an  account  with  Aaron 
Mofifatt's  estate,  and  therein  crediting  the  produce  of  the  devised 
estates,  he  could  not  with  propriety  do  otherwise;  for  as  they 
were  subject  to  Aaron  Moffatt's  debts,  the  account  must  have  been 
kept  until  the  debts  were  paid.  But  this,  I  apprehend,  goes  no 
way  towards  the  decision  of  the  question. 

The  owner  of  a  charge  is  not,  as  a  condition  of  keeping  it  up, 
called  upon  to  repudiate  the  estate.  The  election  he  has  to  make 
is  not,  whether  he  will  take  the  estate  or  the  charge ;  but  whether, 
taking  the  estate,  he  means  the  charge  to  sink  into  it,  or  to  con- 
tinue distinct  from  it  The  circumstance  that  John  Mo£fatt  caused 
the  mortgage  deed  to  be  registered  in  Jamaica  was  relied  on  by 
the  personal  representatives,  as  showing  an  intention  to  keep  the 
charge  on  foot;  but  the  co-heirs  say,  that  as  the  mortgage  to 
Andrew  Moffatt's  estate  was  included  in  the  same  deed,  it  was  the 
duty  of  John,  as  surviving  trustee,  to  register  it  for  the  benefit  of 
the  cestuis  que  trusts. 

It  is  impossible  to  determine  upon  which  motive  he  acted :  but 
I  think  this  weighs  something  in  favour  of  the  personal  represent- 
atives; for,  though  the  deed,  containing  both  mortgages, 
must  have  been  registered,  as  it  stood,  *  yet,  if  acting  [*  392] 
merely  for  the  benefit  of  the  owners  of  the  £27,000  mort- 
gage, he  might  have  entered  some  memorandum  on  the  record, 
signifying  that  the  other  mortgage  no  longer  subsisted.  It  is 
hardly  to  be  supposed  he  could  wish  publicly  to  represent  his 
estate  as  more  heavily  burdened  than  he  really  meant  it  to  be. 

The  real  representatives  rely  on  the  payment  of  £5000  gener- 
ally, without  any  apportionment  of  that  sum  between  the  two 
VOL.  XVII.  —  25 


386  MERGER. 


Ho.  4.  — PorbM  ▼.  Koftett ;  Koffatt  ▼.  Kammmid,  18  Vef.  898,  898. 

mortgages.  This  appears  to  have  been  within  about  £500,  the 
whole  balance  at  that  time  in  his  hands  from  the  produce  of  the 
real  estate;  and  the  argument  is,  that,  as  he  did  not  apportion 
that  sum  between  the  two  mortgages,  he  must  have  considered  his 
own  mortgage  as  no  longer  subsisting.  That,  however,  is  far  from 
being  a  necessary  conclusion.  He  paid  the  sum,  and  took  the 
receipt,  as  executor  of  his  brother.  The  whole  estate,  real  and 
personal,  being  in  his  own  hands,  it  would  not  occur  to  him  for- 
mally to  set  apart  the  same  proportion  of  his  own  debt  that  be 
paid  to  others.  From  his  paying  the  interest  of  another  mortgage 
it  cannot  be  inferred  that  he  meant  to  abandon  his  own.  John 
Mofifatt's  acts  therefore  furnish  no  conclusive  evidence  of  actual 
intention  on  the  subject  of  this  mortgage. 

With  regard  to  presumptive  intention,  it  was  evidently  most 
advantageous  to  John  Moffatt  that  this  mortgage  should  be  kept 
on  foot ;  for  otherwise  he  would  have  given  priority  to  the  other 
mortgage  and  all  the  debts  of  his  brother.  The  reasonable  pre- 
sumption therefore  is,  that  he  would  choose  to  keep  the  mortgage 
on  foot  Where  no  intention  is  expressed,  or  the  party  is  incapa- 
ble of  expressing  any,  I  apprehend  the  Court  considers  what  is 
most  advantageous  to  him.  Upon  that  principle  it  was  held  in 
Thomas  v.  Kemish,  2  Vem.  348,  that  the  charge  should 
[*  393]  *  not  sink ;  as  that  was  for  the  advantage  of  the  infant, 
who,  having  attained  the  age  of  nineteen,  had  made  a 
nuncupative  will,  devising  all  that  was  in  her  power  to  devise,  to 
her  mother.  This  could  be  of  no  avail  as  an  election  by  the 
infant,  for  she  could  make  none.  Her  interest  must  have  been 
the  ground  of  the  decision. 

In  the  case  of  Zord  Compton  v.  Oocenden,  2  Ves.  Jr.  261,  264, 
Lord  EossLYN  says :  *  The  cases  of  infants  turn  upon  a  supposed 
intent  The  Court  saw  in  Thomas  v.  Kemish  that  it  was  much 
more  beneficial  to  the  infant  that  it  should  continue  personal  prop* 
erty ;  because  an  infant  has  the  use  and  disposition  of  that  before 
twenty-one;  but  he  could  have  no  disposable  interest  in  a  real 
estate  till  that  age. " 

In  Wyndham  v.  The  Earl  of  Egremont,  Amb.  753,  the  limita- 
tion was  to  Lord  Thomond  for  life,  with  remainder  to  trustees  to 
preserve  contingent  remainders,  to  his  first  and  other  sons  in  tail 
male,  and  to  his  right  heirs.  Yet  it  was  determined  that  the 
charge  should  be  raised  for  the  benefit  of  his  personal  representa- 


B.  C.  VOL.  XVII.]  MERGER.  387 

Ho.  4.  —  Porbes  ▼.  Koff att ;  Kolfatt  ▼.  Hammonfl,  18  Ves.  398,  894.  —  NotM. 

tives.  What  the  counsel  for  the  personal  representatives  contended 
was,  that  the  charge  should  not  merge ;  unless  at  some  period  in 
Lord  Thomond's  life  it  was  indifferent  to  him  whether  the  term 
should  be  kept  on  foot  or  not 

Upon  looking  into  all  the  cases  in  which  charges  have  been 
held  to  merge,  I  find  nothing  which  shows  that  it  was  not  per- 
fectly indifferent  to  the  party  in  whom  the  interests  had  united, 
whether  the  charge  should,  or  should  not,  subsist ;  and  in  that  case 
I  have  already  said  it  sinks. 

There  is  a  case  of  Gwillim  v.  Holland,  referred  to  in 
*  Lord  Compton  v.  Oxenden,  which,  I  believe,  is  not  [*394] 
reported  anywhere ;  but  which,  from  the  statement  given 
of  it  by  the  counsel  who  cite  it,  and  by  Lord  Rosslyn,  seems  to  be 
in  point  to  the  present  Mrs.  Holland  had  a  charge  upon  an 
estate  which  she  took  by  devise  from  her  brother.  He  had  made 
a  mortgage  on  it  The  counsel  say.  Lord  Hardwicke  thought  that 
"  was  no  merger ;  because  it  was  more  beneficial  for  her  to  take 
it  as  a  charge. "  Lord  Eosslyn  says,  the  intervening  incumbrance 
prevented  the  merger;  and  it  was  more  beneficial  for  the  person 
entitled  to  the  charge  to  let  the  estate  stand  with  the  incumbrance 
upon  it,  than  to  take  it  discharged  of  the  incumbrance,  and  give  a 
priority  to  the  second  incumbrancer.  Now  it  was  certainly  more 
beneficial  for  John  Moffatt  to  let  the  estate  stand  with  the  incum- 
brance upon  it  than  to  give  a  priority  to  the  other  mortgage,  and 
to  all  the  debts  of  his  brother  Aaron.  On  the  whole,  therefore,  I 
think  that  the  mortgage  for  £13,000  must  be  considered  as  still  sub- 
sisting for  the  benefit  of  John  Moffatt's  personal  representatives. 

ENGLISH  NOTES. 

The  principle  of  the  rule  has  been  recognised  in  numerous  cases. 
Thus  prior  to  the  Wills  Act,  1837  (1  Vict.,  c.  26),  an  infant  might 
make  a  will  of  personalty.  See  Blacks  tone  Gomm.,  Bk.  11,  ch.  32. 
Accordingly  where  a  charge  was  paid  off  on  an  estate  to  which  an 
infant  was  entitled  in  fee,  there  would  formerly  have  been  no  merger. 
Thomas  v.  Kemish  (1696),  2  Vem.  348,  2  Freem.  207.  The  question 
now  arises  chiefly  with  regard  to  charges  acquired  by  gift,  or  upon  an 
intestacy,  by  a  person  entitled  to  an  interest  in  the  property  over  which 
the  charge  exists,  or  the  converse  case  of  a  person  entitled  to  the  charge 
acquiring  an  estate  in  the  property.  Here,  as  in  all  cases  of  merger,  the 
interposition  of  an  estate  will  prevent  a  merger.  Wilkes  v.  Collin 
(1869),  L.  E.  8  Eq.  338,  17  W.  R.  878. 


388  MERGER. 

Ho.  4.  — Forbes  ▼.  Kofffttt ;  Koffatt  ▼.  Hammmiil  — Hotel. 

The  following  cases  are  cited  as  illustrating  the  general  principle. 
In  Astley  v.  MUles  (1827),  1  Sim.  298,  27  R.  R.  190,  the  tenant  for 
life  of  an  estate  settled  in  strict  settlement  bought  up  some  of  the 
charges  on  the  estate,  and  had  them  assigned  to  a  trustee.  He  subse- 
quently purchased  the  ultimate  remainder,  which  was  conveyed  to  him 
in  fee  subject  to  the  intermediate  charges.  The  estates  intermediate 
between  his  life  estate  and  the  ultimate  remainder  which  he  had  pur- 
chased failed  at  his  death.  By  his  will  he  devised  his  estate  subject 
to  the  charges  that  might  exist  thereon  at  his  death.  It  was  held  that 
there  was  a  merger.  A  similar  decision  was  come  to  in  Lord  SeUey  v. 
Lord  Lake  fl839),  1  Beav.  146,  8  L.  J.  Ch.  233,  and  Swinfen  v.  Swin- 
fen  (1860),  29  Beav.  199.  In  Price  v.  Gibson  (1762),  2  Eden,  115, 
the  owner  of  the  fee  acquired  a  charge  by  testamentary  disposition,  and 
it  was  held  that  there  was  a  merger. 

The  following  have  been  regarded  as  having  limited  estates  or  inter- 
ests :  A  tenant  in  tail  where  the  reversion  was  in  the  Grown:  Countess 
of  Shrewsbury  v.  Earl  of  Shrewsbury  (1790),  1  Ves.  Jr.  227,  2  R.  R. 
101  ;  a  tenant  in  tail  in  remainder :  WigseU  v.  Wigsell  (1826),  2  Sim. 
&  St.  864,  4  L.  J.  Ch.  84,  25  R.  R.  224;  a  person  absolutely  entitled, 
but  whose  interest  was  subject  to  an  executory  gift  over:  Drinkwater 
V.  Coombe  (1825),  2  Sim.  &  St.  340,  25  R.  R.  210.  So  where  a  person, 
having  a  share  merely,  pays  off  an  incumbrance  affecting  the  entirety, 
there  will  be  no  merger.  Pitt  v.  Pitt  (1856),  22  Beav.  294,  2  Jur. 
(N.  S.)  1010.  In  Ee  Pride,  Shackell  v.  Colnett  (1891),  2  Ch.  135, 
61  L.  J.  Ch.  9,  64  L.  T.  768,  39  W.  R.  471,  the  equity  of  redemption 
in  certain  hereditaments  was  devised  to  the  testator's  six  children 
equally.  One  of  the  children  acquired  four  of  the  shares  in  addition 
to  that  devised  to  him.  One  of  the  children  who  had  conveyed  her 
share  brought  an  action  in  which  judgment  was  given  in  her  favour 
setting  aside  the  conveyance.  Pending  these  proceedings  the  mortgage 
was  paid  off,  and  a  deed  executed  by  which  the  son  had  the  property 
reconveyed  to  him  so  far  as  regarded  five-sixths  of  the  property,  and 
the  mortgage  transferred  as  regarded  the  sixth  share,  which  he  had 
never  purchased.  It  was  held  that  there  was  no  merger  as  regarded 
the  share  the  conveyance  of  which  was  set  aside. 

In  connection  with  the  merger  of  charges  reference  must  be  made 
to  the  much-canvassed  case  of  Toulmin  v.  Steere  (1817),  3  Mer.  210, 
17  R.  R.  67.  The  property  in  question  had  been  subject  to  the  follow- 
ing charges  :  (1)  A  first  mortgage  for  £5000;  (2)  a  second  charge  by 
way  of  annuity  redeemable  on  payment  of  £2045  and  arrears ;  (3)  a  third 
charge  for  £3000.  The  property  was  then  agreed  to  be  purchased, 
and  the  purchaser  had  constructive  notice  of  all  these  incumbrances. 
In  point  of  fact  the  first  and  third  incumbrances  only  were  paid  off 


B.  C.  VOL.  XVn.]  MBBGER.  389 

Vo.  4.  —  Forbes  ▼.  Kof f att ;  Koff att  ▼.  Hammond.  —  Notes. 

out  of  the  purchase-money,  and  a  sum  which  had  been  intrusted  to 
an  agent  in  order  to  redeem  the  annuity  was  misappropriated  by  the 
agent.  It  was  held  that  the  purchaser  could  not  set  up  the  £5000  or 
£3000  charges  against  the  annuitant.  In  view  of  the  modification  in 
the  law  respecting  constructive  notice  enacted  by  the  Conveyancing 
Act,  1882  (45  &  46  Vict.,  c.  39),  s.  3,  the  hardship  of  Toulmin  v. 
Steere  is  in  a  large  measure  minimised.  It  was  a  case  in  which  a 
sound  principle  was  applied  to  work  what  was  little  short  of  an  actual 
injustice.  Although  the  case  cannot  be  said  to  be  overruled,  more 
modern  decisions  of  higher  authority  have  placed  the  law  on  a  sounder 
footing,  and  made  the  extinguishment  of  charges  depend  entirely  upon 
the  consideration  of  what  would  be  for  the  benefit  of  the  person  paying 
off  the  charge.  AdaTns  v.  Angell  (C.  A.  1877),  5  Ch.  D.  634,  46  L.  J, 
Ch.  352,  36  L.  T.  334  ;  Thome  v.  Cann,  1895,  A.  C.  11,  64  L.  J. 
Ch.  1,  71  L.  T.  852;  Liquidation  Estates  Purchase  Co.  v,  WUloughhy 
(H.  L.),  1898,  A.  C.  321,  67  L.  J.  Ch.  251.  The  same  principle  was 
applied  in  the  earlier  case  of  The  Earl  of  Buckinghamshire  v.  Hohart 
(1818),  3  Swanst.  186,  19  R.  E.  197,  where  a  tenant  in  tail,  believing 
himself  to  be  tenant  in  fee,  paid  off  a  charge  with  the  intention  of  ex- 
tinguishing it,  and  it  was  held  that  there  was  no  merger,  as  the  tenant 
in  tail  had  acted  in  error,  and  had  failed  to  make  himself  absolute 
owner. 

Parol  evidence  is  admissible  to  rebut  the  presumption  of  merger. 
Astley  V.  Milles  (1827),  1  Sim.  298,  27  R.  R.  190. 

It  was  customary,  prior  to  the  passing  of  the  Satisfied  Terms  Act, 
1845  (8  &  9  Vict.,  c.  112),  for  the  person  who  paid  off  a  charge  secured 
by  a  term  of  years,  to  take  an  assignment  of  the  term  in  the  name  of 
a  trustee  upon  trust  to  attend  the  inheritance.  As  cases  bearing  on 
the  older  law,  may  be  cited  WUloughhy  v.  Willoughby  (1756),  1 
T.  R.  763,  1  R.  R.  396  ;  Capel  v.  Girdler  (1804),  9  Ves.  609,  7  R.  R. 
289;  Sidney  v.  Miller  (1815),  G.  Cooper,  206,  19  Ves.  352,  14  R.  R. 
247;  TregonweU  v.  Sydenham  (H.  L.  1814),  3  Dow.  194,  15  R.  R.  40. 
This  statute  was  adversely  criticised  by  the  late  Mr.  Joshua  Williams 
in  the  first  and  second  editions  of  his  work  on  the  law  of  Real  Property; 
but  the  anticipated  difficulties  have  not  arisen  in  practice  ;  and  the 
statute  has  been  made  workable  in  operation  by  the  decisions  upon  it. 
Of  these  it  is  sufficient  to  refer  to  Doe  d.  Cadwalader  v.  Price  (1847), 
16  M.  &  W.  603,  16  L.  J.  Ex.  159;  CoUrell  v.  Hughes  (1856),  16  C. 
B.  632,  24  L.  J.  C.  P.  107;  Owen  v.  Owm  (1864),  3  Hurl.  &  C.  88, 
33  L.  J.  Ex.  237;  Anderson  v.  Pignett  (1872),  L.  R.  8  Ch.  180,  42  L. 
J.  Ch.  310,  27  L.  T.  740,  21  W.  R.  150. 


390  MERGER. 


Vo.  4.  —  Forlies  y.  Koff att ;  Moff att  ▼.  Hammnnd.  —  Votes. 


AMERICAN  NOTES. 

Kent  says  (4  Com.  102*):  **  Merger  is  not  favored  in  equity,  and  is  never 
allowed,  unless  for  special  reasons,  and  to  promote  the  intention  of  the  party. 
The  intention  is  considered  in  merger  at  law,  but  it  is  not  the  governing  prin- 
ciple of  the  rule,  as  it  is  in  equity ;  and  the  rule  sometimes  takes  place  with- 
out regard  to  the  intention,  as  in  the  instance  mentioned  by  Lord  Coke.  At 
law,  the  doctrine  of  merger  will  operate,  even  thougu  one  of  the  estates  be 
held  in  trust,  and  the  other  beneficially,  by  the  same  person ;  or  both  the  estates 
to  be  held  by  the  same  person  on  the  same  or  different  trusts.  But  a  Court  of 
equity  will  interpose,  and  support  the  interest  of  the  cestui  que  trust,  and  not 
suffer  the  trust  to  merge  in  the  legal  estate,  if  the  justice  of  the  case  requires 
it.  Unless  however  there  exists  some  beneficial  interest  that  requires  to  be 
protected,  or  some  just  intention  to  the  contrary,  and  the  equitable  or  legal 
estates  unite  in  the  same  person,  the  equitable  trust  will  merge  in  the  legal 
title ;  for  as  a  general  rule,  a  person  cannot  be  a  trustee  for  himself.  Where 
the  legal  and  equitable  interests  descended  through  different  channels,  it 
has  been  held  that  the  equitable  estate  merges  in  the  legal,  in  equity  as 
well  as  at  law.  The  rule  at  law  is  inflexible ;  but  in  equity  it  depends  upon 
circumstances,  and  is  governed  by  the  intention,  either  expressed  or  implied 
(if  it  be  a  just  and  fair  intention),  of  the  person  in  whom  the  estates  unite,  and 
the  purposes  of  justice,  whether  the  equitable  estate  shall  merge  or  be  kept 
in  existence.  If  the  person  in  whom  the  estates  unite  be  not  competent,  as  by 
reason  of  infancy  or  lunacy,  to  make  an  election,  or  if  it  be  for  his  interest 
to  keep  the  equitable  estate  on  foot,  the  law  will  not  imply  such  an  intention. 

"  It  would  be  inconsistent  with  the  object  of  these  lectures  to  pursue  the 
learning  of  merger  into  its  more  refined  and  complicated  distinctions ;  and 
especially  when  it  is  considered,  according  to  the  language  of  a  great  master 
in  the  doctrine  of  merger,  that  the  learning  under  this  head  is  involved  in 
much  intricacy  and  confusion,  and  there  is  difficulty  in  drawing  solid  conclu- 
sions from  cases  that  are  at  variance,  or  totally  irreconcilable  with  each  other." 

(In  a  note  on  this  passage  Kent  says :  "  The  third  volume  of  Mr.  Preston's 
extensive  Treatise  on  Conveyancing  is  devoted  exclusively  to  the  law  of  mer- 
ger. It  is  the  ablest  and  most  interesting  discussion  in  all  his  works.  It  is 
copious,  clear,  logical,  and  profound ;  and  I  am  the  more  ready  to  render  this 
tribute  of  justice  to  its  merits,  since  there  is  great  reason  to  complain  of  the 
manner  in  which  his  other  works  are  compiled.  He  has  been  declared,  by  one 
of  his  pupils,  to  have  *  stupendous  acquirements  as  a  property  lawyer.*  The 
evidence  of  his  great  industry,  and  extensive  and  critical  law  learning,  is  fully 
exhibited ;  but  I  must  be  permitted  to  say,  after  having  attentively  read  all 
his  voluminous  works,  that  they  are  in  general  incumbered  with  much  loose 
matter,  and  with  unexampled  and  intolerable  tautology ;  magnitudine  laborant 
suar) 

Whether  a  mortgage  will  merge  in  the  fee  where  the  mortgagee  acquires 
the  fee  depends  on  his  intention  and  advantage.  Freeman  v.  Paul,  3  Green- 
leaf  (Maine),  260;  14  Am.  Dec.  237  (citing  the  principal  case) ;  Lochoood  v. 
SturdevarU,  6  Connecticut,  373  (where  a  mortgage  with  covenants  of  title  was 


B  C.  VOL.  TCVn.]  MERGER.  391 

Ho.  4.  — PorbM  ▼.  Xoffatt ;  Koftott  ▼.  Hammond.  —Votes. 

held  not  merged) ;  Gardner  v.  Astor^  3  Johnson  Chancery  (N.  Y.)  53  (citing 
the  principal  case);  Gibson  v.  Crehore,  3  Pickering  (Mass.),  475;  James  v. 
Johnson^  6  Johnson  Chancery  (N.  Y.),  417  (citing  "the  late  case  of  Forbes  v. 
MoffaU") ;  Champney  v.  Coope,  32  New  York,  543;  Clift  v.  WhUe,  12  New 
York,  519;  Flanigafi  v.  SabU,  44  Minnesota,  417;  Burton  v.  P«rry,  146  H- 
linois,  71 ;  Edgerton  v.  Young,  43  Illinois,  464 ;  Lyon  v.  Mcllvaine,  24  Iowa,  9 ; 
Carroto  v.  Headley,  155  Penn.  State,  96 ;  Stantons  v.  Tkompsony  49  New  Hamp- 
shire, 274;  Mallory  v.  Hitchcock,  29  Connecticut,  127 ;  /Cei^A  v.  H^Acc^,  159 
Massachusetts,  161 ;  Walker  v.  Baxter,  26  Vermont,  710. 

There  is  no  merger  where  the  rights  of  strangers  forbid  it.  Moore  v.  LucCy 
29  Penn.  State,  260;  72  Am.  Dec.  629;  Kellogg  v.  Ames,  41  Barbour  (N.  Y. 
Sup.  Ct.),  250. 

Where  a  co-tenant  of  a  life  estate  acquires  the  reversion,  merger  will  be 
worked  or  not  in  equity  according  to  justice  or  the  disclosed  intent  of  the 
parties.  Jameson  v.  Hayvoard,  106  California,  682 ;  46  Am.  St.  Rep.  268,  citing 
McClain  v.  SuUivan,  85  Indiana,  174;  Fowler  v.  Fay,  62  Illinois,  375;  Andrus 
V.  Vreeland,  29  New  Jersey  Equity,  394 ;  Watsony.  Dundee,  fi-c.  Co.,  12  Oregon, 
474. 

Where  a  term  for  years  and  the  fee  meet  in  one  person,  there  will  be  no 
merger  if  the  continuance  of  the  former  is  necessary  to  the  protection  of  the 
owner  in  fee.   Dougherty  v.  Jack,  5  Watts  (Penn.),  456 ;  30  Am.  Dec.  335. 

If  the  party  is  a  lunatic  the  Court  will  presume  no  intent  to  merge.  James 
V.  Mowrey,  2  Cowen  (N.  Y.),  246;  14  Am.  Dec.  475  (citing  the  principal 
case).  The  Court  said :  '<  From  all  the  authorities  which  I  have  been  able  to 
examine,  I  consider  the  rule  well  settled,  and  I  think  it  a  rule  founded  upon 
good  sense  and  justice,  that  when  the  legal  and  equitable  claims  are  united 
in  the  same  person,  the  equitable  title  is  merged,  and  no  longer  exists  ex- 
cept in  special  cases.  In  support  of  this  position  the  cases  of  Gardner  y. 
Astor,  3  Johnson  Chancery  (N.  Y.),  53  (8  Am.  Dec.  465) ;  Mills  v.  Comstock, 
5  id.  214;  Starr  v.  EUis,  6  id.  393;  and  Compton  v.  Oxenden,  2  Yesey,  Jr., 
Chancery  Reports,  261,  are  explicit  and  decisive. 

**  The  only  exceptions  to  this  rule  are :  1,  When  there  is  a  declared  inten- 
tion on  the  part  of  the  mortgagee,  that  the  equitable  and  legal  titles  shall 
continue  distinct ;  2,  Where  an  intention  to  continue  the  mortgage  may  be 
fairly  presumed  from  the  acts  of  the  mortgagee ;  and  3,  Where  the  law  will 
presume  such  intention  from  the  circumstances  of  the  case,  without  regard  to 
the  acts  of  the  mortgagee,  which  it  will  do  in  two  cases :  1,  When  for  the 
interest  of  the  party  the  mortgage  should  continue ;  and  2,  When  from  the 
situation  of  the  parties,  as  in  the  case  of  an  infant,  he  cannot  make  his  election. 
These  are  all  the  cases  to  be  found  in  which  the  mortgage  will  be  deemed  a 
subsisting  incumbrance,  when  the  mortgagee  has  the  legal  and  equitable 
estates  united  in  himself.  But  when  it  is  indifferent  to  the  party,  whether 
the  charge  should  or  should  not  subsist,  it  always  merges.  Forbes  y.  MoffaU^ 
18  Vesey,  393." 

Washburn  on  Real  Property,  yol.  2,  p.  204,  says :  **  And  where  it  is  for 
the  interest  of  the  holder  of  one  of  these  titles,  upon  his  acquiring  the  other, 
that  they  should  be  kept  distinct  in  order  that  both  should  be  protected,  they 


392  HEBGEB. 

Ho.  4.~7orbM  ▼.  Kofffttt ;  Koffatt  ▼.  Hammimd.  —  Hotot. 


will  not  merge  unless  the  contrary  intent  appear  from  the  language  of  the 
deed;  "  citing  the  principal  case.  Hunt  v.  HurUj  14  Pickering  (Mass.),  374; 
Hatch  V.  Kimballf  14  Maine,  9 ;  Bell  v.  Woodward^  84  New  Hampshire,  90 ; 
Button  v.  Ives,  5  Michigan,  515;  James  v.  Morey,  2  Cowen  (N.  Y.),  285.  And 
at  p.  561:  "  But  there  is,  after  all,  a  principle  recognized  by  Courts  of  equity, 
which  controls  their  decisions  in  all  questions  of  merger  of  the  equitable  in 
the  legal  estate ;  and  that  is,  if  it  is  necessary  for  purposes  of  justice,  or  to 
effect  the  intent  of  the  donor,  that  the  two  estates  should  be  kept  distinct, 
there  will  be  no  merger  by  their  merely  coming  together  in  one  person ;  citing 
the  principal  case.  Gibson  y.  Crehore^  3  Pickering  (Mass.),  475,  and  other 
cases.  (The  seven-year-old  Court  of  California  said  of  Hunt  y.  Hunt,  supra 
[Peters  y.  Jamestown  B.  Co.,  5  Cal.  334]  :  "  Unsustained  by  authority  or  by  the 
best  reasoning,"  which  may  be  described  as  the  height  of  impudence,  espe- 
cially as  the  doctrine  of  the  two  cases  is  totally  different). 

Pingrey  on  Real  Property,  yol.  1,  sect.  510,  says :  "  Equity  regards  inten- 
tion in  applying  the  rule  of  merger ;  '*  citing  the  principal  case ;  and  at  sect. 
870 :  "  The  rule  at  law  is  inflexible;  but  in  equity  it  depends  upon  circum- 
stances, and  is  governed  by  the  intention,  either  express  or  implied,  if  it  be 
a  fair  and  just  intention,  whether  the  equitable  estate  shall  merge  or  be 
kept  in  existence ; "  citing  Campbell  y.  Carter,  14  Illinois,  286 ;  Knowles  v. 
Lawton,  18  Georgia,  476 ;  and  the  principal  case. 

This  doctrine  is  the  subject  of  a  chapter  of  Jones  on  Mortgages,  sect.  848, 
citing  the  principal  case,  and  arranging  the  American  cases  by  States.  Pin- 
grey  on  Mortgages  contains  an  excellent  chapter  on  the  subject,  sect.  1058, 
citing  the  principal  case. 


B.  C.  VOL.  XVII.]         SECT.  I. — MINBRAL  PBOPEBTT.  393 

Ho.  1.  — GaM  of  mnM;  Beg.  ▼.  Earl  of  VorUmmberUnd,  Flowd.  810.  — Bvle. 


MINES  AND  MINERALS. 

See  particularly  as  to  qnestions  relating  to  water,  No.  5  of  "  Action'*  {Fktdker  y. 
Bglands),  and  notes,  1  R.  C.  235  et  seq.  See  also  Nos.  9  &  19  of  ''Limitation  ov 
Actions,"  16  R.  C.  215  et  seq.  and  328  et  seq, 

Sbgtion      I.  Mineral  Property. 

Section    IL  Possession,  and  Powers  (generally). 

Section  IIL  Power  of  Railway  and  Canal  Companies. 

Section  IV.  Rights  of  Support 

Section     V.  Limited  Owners. 

Section  VI.  Rules  of  Constmction  and  Special  Customs. 

Section  VH.  Special  Rules  as  to  Remedies. 


Section  L — Mineral  Property. 

No.  1.  — CASE  OF  MINES. 
BEG.  V.  (EARL  OF)  NORTHUMBERLAND. 

(10  ELIZ.,  HIL.  TERM.) 

No.  2.  — HUMPHRIES  v.  BROGDEN. 
(1850.) 

RULE. 

Primd  fade  (in  England  and  Wales)  the  owner  of  the 
surface  is  entitled  to  everything  beneath  it,  except  mines  of 
gold  and  silver. 

By  evidence  of  long  possession,  a  right  to  the  mines  may 
be  shown  to  exist  separately  from  the  right  to  the  surface ; 
but  in  the  absence  of  express  grant,  such  a  right  will  be 
presumed  to  be  subject  to  a  right  in  the  owner  of  the  surface 
to  have  the  surface  in  its  natural  state  supported. 

Case  of  HiuM. 
Beg.  ▼.  Barl  of  ITorfhtiinberland. 

Plowden,  310-340. 

Mi/n/es  and  Minerals.  —  Gold  and  Silver.  — Base  Metals.  — Baydl  Mines. 

All  mines  of  gold  and  silver  tbroagbout  the  realm  belong  to  tbe  Ring  by 
prerogative,  with  liberty  to  dig,  &o.,  and  carry  away  tbe  same.  Metals  in 
which  there  is  no  gold  or  silver  belong  to  the  proprietor  of  the  soiL 


394  MINES  AND  MINERALS. 


Ho.  1.  — Case  of  Kines;  Seg.  ▼.  Earl  of  Vorfhunberlaiid,  Flowd  318  ft. 

A  majority  of  the  Judges  were  of  opinion  that,  if  the  base  metals  contained 
any  gold  or  silver,  the  mines  belonged  to  the  Ring.  But  three  Judges  were 
of  opinion  that  the  criterion  was  whether  the  value  of  the  gold  and  silver  ex- 
ceeded that  of  the  baser  metals.  [The  learned  reporter  in  a  note  combats  the 
opinion  of  the  majority  as  unpractical.] 

[313  a]  The  case  was  recited  in  this  manner.  The  Queen's 
attorney  has  informed  the  Court,  that  whereas  the  Queen 
by  reason  of  her  prerogative  royal  is  entitled  to  have  and  enjoy, 
and  ought  to  have  and  enjoy,  to  her  proper  use,  all  and  singular 
mines  and  ores  of  gold  and  silver,  and  of  all  other  metals  con- 
taining gold  or  silver,  and  all  things  concerning  them,  which  may 
be  found  in  any  lands,  tenements,  or  hereditaments  within  the 
realm  of  England,  as  well  in  the  proper  land  and  soil  of  the  same 
Queen,  as  in  the  land  and  soil  of  any  of  her  subjects ;  and  whereas 
the  said  Queen  the  first  day  of  March,  in  the  eighth  year  of  her 
reign,  was  and  yet  is  seized  in  her  demesne  as  of  fee,  in  right  of 
her  Crown,  of  and  in  certain  waste  or  mountainous  lands  called 
Newlands,  in  the  county  of  Cumberland,  in  which  are  certain  veins 
or  mines,  and  ore  or  metal  of  copper,  containing  in  themselves  gold 
or  silver,  which  to  the  said  Lady  the  Queen  belong,  as  in  many 
records,  rolls,  and  remembrances  of  the  Court  of  Exchequer  more 
fully  appear.  And  whereas  also  the  said  Lady  the  Queen  the 
said  first  day  of  March  in  the  year  aforesaid,  at  Westminster, 
commanded  and  assigned  Thomas  Thurland  and  Daniel  Howseter 
to  cause  and  procure  certain  lands  and  mines  for  such  metal 
called  ore  of  copper,  containing  in  itself  gold  or  silver  within 
the  said  waste  or  mountainous  lands  called  Newlands,  for  the  use 
of  the  said  Queen,  to  be  searched  and  dug,  and  such  searching  and 
digging  to  be  continued  there  during  a  certain  time  to  come,  and 
to  procure  such  metal  from  time  to  time  found  and  dug  up  there  to 
be  carried  away,  and  for  the  use  of  the  Queen  to  be  melted,  fined, 
or  otherwise  converted.  By  force  whereof  the  said  Thomas  Thur- 
land and  Daniel  caused  the  quantity  of  six  hundred  thousand 
pounds  weight  of  ore  of  copper,  containing  in  itself  gold  or  silver, 
to  be  dug  up  in  the  said  lands  called  Newlands,  and  to  be  there 
laid  ready  to  be  taken  and  carried  away  from  thence,  intending  to 
continue  the  same  search  and  digging  as  they  were  commanded  by 
the  Lady  the  Queen,  until  Thomas,  Earl  of  Northumberland,  the 
8th  day  of  October  last  past,  and  divers  other  times  into  the  said 
lands  called  Newlands  entered  and  intruded,  and  interrupted  and 


B.  C.  VOL.  XVn.]         SECT.  I.  —  MINERAL  PROPERTY.  395 

Ho.  1. — GMa  of  Mium  ;  Seg.  v.  Earl  of  Korthnmberland,  Plowd.  318  a,  814. 

disturbed  the  said  Thomas  Thurland  and  Daniel,  and  other 
labourers  in  the  said  mines,  as  well  from  searching  and 
*  digging  as  from  carrying  away  the  said  six  hundred  [*  314] 
thousand  pounds  weight  of  the  said  ore  of  copper  dug  up 
and  put  upon  the  land  as  is  aforesaid,  to  the  damage  of  the  Lady 
the  Queen  £1000.  Against  which  the  Earl,  protesting  that  the 
Queen  ought  not  to  have  or  enjoy  by  reason  of  her  prerogative  all 
and  singular  mines  and  ore  of  gold  and  silver,  and  of  all  other 
metals  containing  in  them  gold  or  silver,  with  all  things  concern- 
ing them,  in  the  land  or  soil  of  any  of  her  subjects,  for  plea  as  to 
the  entry  into  the  said  lands  called  Newlands,  and  as  to  the  inter- 
ruption and  disturbance  from  and  in  the  searching  and  digging  of 
five  hundred  thousand  pounds  weight  of  ore  of  copper,  parcel  of 
the  said  six  hundred  thousand  pounds  weight,  and  from  and  in 
the  carrying  away  of  the  same  five  hundred  thousand  pounds 
weight  of  copper  ore,  he  says  that  the  same  five  hundred  thousand 
pounds  weight  of  copper  ore  were  dug  in  one  vein  or  mine  of  the 
said  veins  or  mines  of  ore  within  the  said  waste  or  mountainous 
lands  called  Newlands.  And  that  the  same  lands,  in  which  are 
the  veins  or  mines,  are,  and  from  time  immemorial  have  been, 
parcel  of  ten  thousand  acres  of  great  waste  called  Derwentfels,  in 
the  said  county  of  Cumberland.  And  farther,  he  says,  that  the 
late  King  and  Queen  Philip  and  Mary  were  seized  of  the  said  ten 
thousand  acres  called  Derwentfels,  whereof,  &c. ,  in  their  demesne 
as  of  fee,  in  right  of  the  Crown  of  England,  and  being  so  seized, 
by  their  letters-patent,  bearing  date  at  Eichmond,  the  16th  day  of 
August,  in  the  fourth  and  fifth  years  of  their  reign,  shown  to  the 
Court,  of  their  special  grace,  certain  knowledge,  and  mere  motion, 
granted  to  the  said  Earl  of  Northumberland  the  said  ten  thousand 
acres  called  Derwentfels,  whereof,  &c. ,  amongst  other  things,  by  the 
name  of  all  their  honour  of  Cockermouth,  and  of  their  Castle  of 
Cockermouth  and  Egremond,  &c.,  and  of  all  their  manors,  lands, 
tenements,  and  villages  of  five  villages,  Aspater,  Newlandraw,  &c. , 
Derwentfels,  &c. ,  with  their  appurtenances  in  the  county  of  Cum- 
berland, late  parcel  of  the  possessions  and  hereditaments  of  Henry, 
late  Earl  of  Northumberland ;  to  have  and  to  hold  the  same  to  the 
said  Thomas,  Earl  of  Northumberland,  and  to  his  heirs  males  of 
his  body  lawfully  begotten,  the  remainder  to  Henry  Percy,  his 
brother,  and  to  the  heirs  males  of  his  body  begotten.  By  force 
whereof  the  said  Thomas,  Earl  of  Northumberland,  the  last  day 


396  MINES  AND  MIKEBALS. 


Ho.  1.  —  GMa  of  K'hm  ;  Beg.  ▼.  Earl  of  HorfhnmborUuLd,  Flowd.  314. 

of  August,  in  the  said  fourth  and  fifth  years  of  the  reign  of  the  said 
King  and  Queen,  into  the  said  ten  thousand  acres  called  Derwent- 
f els,  whereof,  &c. ,  entered,  and  was  thereof  seized  in  tail  by  force 
of  the  gift  aforesaid.  And  being  so  seized,  the  said  8th  day  of 
October,  in  the  information  specified,  he  disturbed  and  interrupted 
the  said  Thomas  Thurland  and  Daniel  Howseter,  and  other  labour- 
ers in  the  said  mines,  as  well  from  and  in  the  making  and  con- 
tinuing the  search  and  digging  of  the  said  five  hundred  thousand 
pounds  weight  of  copper  ore,  parcel  of  the  said  six  hundred  thou- 
sand pounds  weight,  in  the  said  one  vein  or  mine  within  the  said 
lands  called  Newlands,  as  from  and  in  the  taking  and  carrying 
away  of  the  same  five  hundred  thousand  pounds  weight  of  copper 
ore,  there  in  form  aforesaid  dug  up,  and  laid  upon  the  land,  as  it 
was  lawful  for  him  to  do.  With  this,  that  the  said  Thomas,  Earl 
of  Northumberland,  will  aver  that  the  said  ten  thousand  acres 
called  Derwentfels,  &c,  whereof,  &c.,  and  the  said  mine  in  the 
said  lands  called  Newlands,  were  parcel  of  the  lands,  possessions, 
and  hereditaments  of  the  said  Henry,  late  Earl  of  Northumber- 
land. And  with  this  that  the  said  Earl  will  aver,  that  the  said 
one  vein  or  mine  of  ore  or  metal  of  copper  was  first  opened  after  the 
said  16th  day  of  August,  in  the  said  fourth  and  fifth  years  of  tho 
reign  of  the  said  late  King  and  Queen,  that  is  to  say,  the  first  day 
of  April,  in  the  seventh  year  of  the  reign  of  the  Queen  that  now  is. 
And  he  traverses  the  seizin  of  the  Queen  the  said  first  day  of 
March,  and  the  intrusion,  &c.,  which  things  he  is  ready  to  aver, 
and  demands  judgment,  and  prays  to  be  dismissed.  And  as  to  the 
interruption  and  disturbance  as  well  from  and  in  the  making  and 
continuing  the  search  and  digging  of  one  hundred  thousand  pounds 
weight  of  copper  ore,  being  the  residue  of  the  said  six  hundred 
thousand  pounds  weight  of  copper  ore,  as  from  and  in  the  taking 
and  carrying  away  of  the  same  one  hundred  thousand  pounds 
weight  of  copper  ore,  the  same  Earl  says,  that  the  same  one  hun- 
dred thousand  pounds  weight  of  copper  ore,  being  the  residue, 
were  dug  in  the  residue  of  the  said  veins  or  mines  of  ore  and 
metal  within  the  said  lands  called  Newlands.  And  that  the  said 
late  King  and  Queen  were  seized  of  and  in  the  said  veins  or  mines, 
being  the  residue,  in  which  the  said  one  hundred  thousand  pounds 
weight  of  copper  ore,  being  the  residue,  were  dug,  in  their  demesne 
as  of  fee,  in  right  of  the  Crown  of  England,  which  veins  or  mines 
being  the  residue,  were  opened  the  said  16th  day  of  August,  in  the 


K.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.   '  397 

Ho.  1.  —  GMa  of  lOnes ;  Seg.  ▼.  Earl  of  VorthnmberUnd,  Flowd.  814,  816. 

said  fourth  and  fifth  years,  and  long  before.  And  the  same  King 
and  Queen  being  so  seized,  by  the  said  letters-patent  here  shown  to 
the  Court,  gave,  and  of  their  special  grace,  certain  knowledge,  and 
mere  motion,  granted  to  the  said  Thomas  Earl  of  Northumberland, 
the  said  veins  or  mines,  being  the  residue,  in  which,  &c. ,  by  the 
name  of  all  their  honour  of  Cockermouth,  ut  supra;  and  also 
by  the  name  of  all  and  singular  their  messuages,  mills,  lands, 
&c.,  wrecks  of  sea,  mines,  quarries,  and  all  other  their  rights, 
privileges,  profits,  commodities,  emoluments,  and  hereditaments 
whatsoever,  situate,  lying,  and  being  in  the  said  towns,  fields, 
parishes,  and  hamlets  of  Cockermouth,  &c. ,  Derwentfels,  &c. ,  to 
the  said  honours,  manors,  &c.,  appertaining,  or  as  member,  part, 
or  parcel  of  the  said  honours,  manors,  &c.,  then  before  known, 
accepted,  used,  or  reputed,  and  which  before  time  were  parcel  of 
the  lands,  possessions,  and  hereditaments  of  the  said  Henry,  late 
Earl  of  Northumberland :  To  have  and  to  hold  the  same  to  the  said 
Thomas,  Earl  of  Northumberland,  and  to  the  heirs  males  of  his 
body  lawfully  begotten,  the  remainder  to  Henry  Percy,  his  brother, 
and  to  the  heirs  males  of  luis  body  begotten,  whereby  the  said 
Thomas,  Earl  of  Northumberland,  was  of  the  said  veins  or  mines, 
being  the  residue,  seized  in  his  demesne  as  of  fee-tail  with  the 
said  remainder  over,  by  the  form  of  the  gift  aforesaid.  And  the 
said  Earl  being  so  seized,  he,  the  said  8th  day  of  October,  the  said 
Thomas  Thurland  and  Daniel,  and  the  other  labourers  in  the  said 
mines,  interrupted  and  disturbed  from  and  in  the  making  and  con- 
tinuing the  search  and  digging  of  the  said  one  hundred  thousand 
pounds  weight  of  copper  ore,  being  the  residue  of  the  said  six 
hundred  thousand  pounds  weight  of  copper  ore,  in  the  said  veins 
or  mines,  being  the  residue  of  the  ore  and  metal  afore- 
said, in  the  said  lands  called  *  Newlands,  and  also  from  [*315] 
and  in  the  taking  and  carrying  away  of  the  same  one 
hundred  thousand  pounds  weight  of  copper  ore,  being  the  residue, 
there  in  form  aforesaid  dug  up,  and  laid  upon  the  land,  as  it  was 
well  lawful  for  him  to  do.  With  this  that  the  said  Earl  will  aver 
that  the  veins  or  mines,  being  the  residue  in  which,  &a ,  were  par- 
cel of  the  possessions  and  hereditaments  of  the  said  late  Henry,  Earl 
of  Northumberland.  All  which  the  said  Thomas,  Earl  is  ready  to 
verify,  &c.,  and  demand  judgment,  and  prays  to  be  dismissed,  &c. 
Upon  which  two  pleas  the  Queen's  attorney  has  demurred  in  law. 
And  the  matter  was  argued  in  the  Exchequer  Chamber,  in  the 


398  MINES  AND  MINEBALS. 


Ho.  1.  —  GMa  of  VmeB ;  Seg.  y.  Eurl  of  VorthnmberUuid,  Flowd.  316-386. 

said  Term  of  St  Michael,  before  all  the  Justices  of  England,  and 
the  Barons  of  the  Exchequer,  by  Onslow,  apprentice,  the  Queen's 
solicitor,  Gerard,  the  Queen's  attorney,  and  Wray  and  Barham, 
Queen's  Serjeants;  and  on  the  part  of  the  Earl  by  Shirbom  and 
Bell,  apprentices,  and  Mead,  sergeant.  And  the  matter  was  divided 
into  three  points.  The  first  was,  if  all  mines  and  ores  of  gold  or 
silver,  which  are  in  the  lands  of  subjects,  with  power  to  dig  the 
land,  and  carry  away  the  ore,  and  other  incidents  thereto  belong 
of  right  to  the  King  of  this  realm  by  prerogative  or  not,  inas- 
much as  this  is  not  recited  in  the  treatise  de  Prerogative  Regis,  and 
inasmuch  also  as  the  digging  for  it  in  another's  land  touches  the 
freehold  and  inheritance  of  another.  And  upon  this  the  two  other 
points  depend,  for  if  the  King  shall  not  have  them,  then  in  the 
two  other  points  the  law  is  against  the  Queen;  and  if  the  law  be 
that  the  King  shall  have  them,  from  this  foundation  the  counsel 
for  the  Queen  said,  it  would  follow  that  in  the  two  other  points 
the  law  is  with  the  Queen.  So  that  they  took  this  to  be  the 
principal  point  The  second  point  was,  whether  or  no  mines  and 
ores  of  copper  containing  in  them  gold  or  silver,  which  are  in  the 
lands  of  subjects,  with  power  to  dig,  and  carry  away,  and  other 
incidents,  belong  also  to  the  King  of  this  realm  by  prerogative. 
The  third  was,  if  so  be  that  mines  and  ores  of  copper  containing 
gold  or  silver  belong  to  the  King  by  prerogative,  nevertheless  if 
the  said  grant  of  King  Philip  and  Queen  Mary  of  the  land  in  the 
first  case,  and  of  all  and  singular  mines  in  the  other  case,  made 
by  the  said  charter  being  de  gratid  su^  speeiali,  certa  sdentia  et, 
mero  motu  suis,  be  sufficient  to  make  the  ores  and  mines  pass 
from  them  to  the  said  Earl  of  Northumberland  or  not 

[These  points  having  been  elaborately  argued  and  numerous 
precedents  of  charters  and  letters-patent  read  in  the  course  of  the 

argument  ] 
[336]  And  after  these  arguments  made  at  the  bar,  all  the  Jus- 
tices and  Barons  assembled  several  times  the  same  term 
to  confer  together  upon  the  matter.  And  then  they  took  respite 
further  until  Hilary  Term  then  next  following,  in  which  term 
they  assembled  twice,  and  at  last  they  gave  their  several  opinions, 
and  the  cause  thereof,  at  which  I  was  not  present,  for  there  were 
none  present  but  themselves  and  the  counsel  who  had  argued  for 
the  Queen.  And  (as  I  was  informed  by  several  of  them  who 
were  there)  their  resolution  was  as  follows: — 


B.  C.  VOL.  XVII.]  SECT.  L — MINERAL  PROPERTY.  399 

Ho.  1.  —  Caae  of  MinM ;  Seg.  ▼.  Earl  of  Vorthumberluid,  Flovd.  886. 

First,  all  the  Justices  and  Barons  agreed  that  by  the  law  all 
mines  of  gold  and  silver  within  the  realm,  whether  they  be  in  the 
lands  of  the  Queen,  or  of  subjects,  belong  to  the  Queen  by  prerog- 
ative, with  liberty  to  dig  and  carry  away  the  ores  thereof,  and 
with  other  such  incidents  thereto  as  are  necessary  to  be  used  for 
the  getting  of  the  ore. 

Also  Harper,  Southcote,  and  Weston,  Justices,  agreed,  that  if 
gold  or  silver  be  in  ores  or  mines  of  copper,  tin,  lead,  or  other 
base  metal  in  the  soil  of  subjects,  as  well  the  gold  and  silver  as 
the  base  metal  entirely  belongs  of  right  to  the  subject,  who  is  the 
proprietor  of  the  soil,  if  the  gold  or  silver  does  not  exceed  the 
value  of  the  base  metal;  but  if  the  value  of  the  gold  or  silver 
exceeds  the  value  of  the  copper,  or  other  base  metal,  then  it  was 
their  opinion  that  the  Crown  should  have  as  well  the  base  metal 
as  the  gold  or  silver ;  and  in  such  case  it  shall  be  called  a  mine 
royal,  and  otherwise  not;  but  if  the  base  metal  exceeds  the  value 
of  the  gold  or  silver,  then  it  draws  the  property  of  the  whole  to 
the  proprietor  of  the  land.  But  they  three  agreed,  that  forasmuch 
as  the  information  sets  forth  that  the  ore  and  mine  of  copper 
contained  in  it  gold  or  silver,  and  the  defendant  has  not  denied 
it,  but  has  fully  confessed  it,  thereby  it  shall  be  taken  that  the 
gold  or  silver  were  of  the  greater  value,  for  the  best  shall  be 
intended  for  the  Queen ;  and  therefore  they  assented  with  all  the 
other  Justices  and  Barons,  that  judgment  should  be  given  against 
the  Earl,  and  for  the  Queen.  But  all  the  other  Justices  and  Barons 
of  the  Exchequer  unanimously  agreed,  that  if  the  gold  or  silver  in 
the  base  metal  in  the  land  of  a  subject  be  of  less  value  than  the 
base  metal  is,  as  well  the  base  metal  as  the  gold  or  silver  in  it 
belong  by  prerogative  to  the  Crown,  with  liberty  to  dig  for  it,  and 
to  put  it  upon  the  land  of  the  subject,  and  to  carry  it  away  from 
thence ;  and  in  such  case  it  shall  be  called  a  mine  royal,  for  the 
records  don't  make  any  distinction  herein,  but  they  are  general, 
and  prove  that  all  ores  or  mines  of  copper  or  other  base  metal  con- 
taining or  bearing  gold  or  silver  belong  to  the  King.  And  where 
Weston  said,  that  there  is  a  text  in  the  civil  law  to  this  effect, 
viz. ,  that  by  the  negligence  or  poverty  of  the  proprietor  of  the  soil 
posmnt  fodi  omnia  metalla  in  alieno  solo,  invito  domino,  quia  utile 
est  reipubliccB,  et  aliter  non ;  to  this  Saunders,  Ch.  B. ,  said,  that 
the  same  law  says  qubd  optima  legum  interpres  est  consuetudo,  and 
here  there  is  consrietudo,  for  the  precedents  and  the  accounts  prove 


400  MINES  AND  MINERALS. 


Vo.  1.  — Cue  otWam;  Beg.  y.  Earl  of  VorUiiimberliiid,  Flowd.  888,  887. 

that  from  time  to  time  it  has  been  a  custom  and  usage  that  the 
Kings  of  this  realm  have  had  the  profit  of  such  mines  of  base  metal 
containing  or  bearing  gold  or  silver,  without  any  distinction  with 
regard  to  the  value  of  the  gold  or  silver,  be  the  same  greater  or 
less.than  the  base  metal.  Wherefore  he  and  all  the  others  (except 
the  three  above  mentioned)  took  it  that  the  whole  ore  and  mine 
belonged  to  the  Queen,  although  the  base  metal  be  of  the  greater 
valua  And  here  it  is  confessed  by  the  defendant,  that  the  ore 
and  mine  of  copper  contains  in  it  gold  or  silver,  so  that  it  agrees 
with  the  precedents.  And  therefore  as  well  the  other  three  as  all 
the  rest  unanimously  agreed  that  judgment  should  be  given  for 
the  Queen  upon  this  plea,  although  they  differed  in  the  matter 
itself,  and  in  the  reasons  of  the  judgment,  as  it  is  shown  before. 

Also  they  all  agreed  that  if  the  ore  or  mine  in  the  soil  of  a 
subject  be  of  copper,  tin,  lead,  or  iron,  in  which  there  is  no  gold 
or  silver,  in  this  case  the  proprietor  of  the  soil  shall  have  the  ore 
or  mine,  and  not  the  Crown  by  prerogative,  for  in  such  barren 
base  metal  no  prerogative  is  given  to  the  Crown. 

Also  they  all  agreed  that  a  mine  royal,  whether  of  base  metal 
containing  gold  or  silver,  or  of  pure  gold  and  silver  only,  may  by 
the  grant  of  the  King  be  severed  from  the  Crown,  and  be  granted 
to  another,  for  it  is  not  an  incident  inseparable  to  the  Crown,  but 

may  be  severed  from  it  by  apt  and  precise  words. 
[*  337]  *  But  all  the  Justices  and  Barons  (except  the  said  three 
Justices,  and  they  also,  if  so  be  these  ores  and  mines  in 
question  shall  be  called  Boyal)  unanimously  agreed,  that  the  ores 
in  the  first  plea  specified  shall  not  pass  to  the  Earl  by  the  grant  of 
the  land,  nor  the  mine  in  the  second  plea  specified,  by  the  grant  of 
the  mines,  although  the  patent  be  de  gratid  speeiali,  certa  scientia, 
et  mero  motu,  but  the  words  (land)  and  (mines)  shall  be  taken  to 
common  intent,  and  shall  not  make  the  ores  royal  nor  the  mines 
royal  to  pass,  to  convey  which  there  ought  to  be  in  the  patent 
precise  words  expressing  them.  And  the  Act  of  4  &  5  Philip 
and  Mary  will  not  avail  the  Earl  in  this  case,  because  the  tenor, 
words,  or  purport  of  the  charter  don't  extend  to  a  mine  royal. 
But  the  Lord  Dyer,  Chief  Justice  of  the  Common  Bench,  said, 
that  if  the  Queen  has  a  mine  royal  in  the  soil  of  J.  S. ,  and  she 
ex  gratid  speciali,  certa  scientia  et  mero  motu  suis,  grants  to  a 
stranger  all  mines  which  she  has  in  the  land  of  J.  S. ,  by  this  grant 
the  mine  royal  shall  pass,  for  else  the  words  would  be  void,  and 


B.  C.  VOL.  XVn.]  SECT.  L  —  MINERAL  PROPERTY.  401 

Vo.  1.  —  Case  of  IQiim  ;  Beg.  y.  Earl  of  Vorthiuiilwrlaiia,  Flowd.  887. 

without  effect,  because  she  cannot  have  a  base  mine  in  the  soil  of 
another;  and  therefore  when  she  says  ex  eerta  scientia,  and  recites 
that  it  is  in  the  soil  of  another,  she  shall  not  be  taken  to  be 
misconusant  of  the  thing,  for  which  reason  it  shall  pass.  But  it 
is  not  so  here,  for  the  King  and  Queen  might  intend  to  make  ba^e 
mines  pass,  so  that  the  words  may  be  satisfied  in  that  intent 

And  the  Lord  Dyer  said  in  this  case,  that  although  the  vein  or 
ore  mentioned  in  the  first  plea  was  not  open,  but  close,  at  the  time 
of  the  date  of  the  patent,  yet  it  might  be  termed  a  mine,  quia  de 
mineris  aliquot  sunt  occulta^,  et  aliqucB  apertcg,  and  that  which  is 
not  open  may  be  called  a  mine,  in  his  opinion.  And  Baron  Frevil 
held  that  if  there  is  a  vein  of  copper  in  the  mine  without  mixture 
of  gold,  and  in  digging  further  there  is  a  vein  of  gold  with  little 
or  no  other  metal  in  it,  in  this  case  it  shall  be  called  a  mine  of 
copper  and  gold,  and  not  a  mine  of  copper  only,  although  in  the 
first  vein  there  was  nothing  else  but  copper. 

And  Mead  took  exception  to  the  information,  because  it  was 
not  shown  in  what  town  or  hamlet  Newlands  lay ;  so  that  if  the 
defendant  had  pleaded  not  guilty,  it  was  imcertain  from  whence 
thevisne  should  come.  But  all  the  Justices  and  Barons  agreed 
that  the  information  was  good,  because  it  is  but  in  effect  for  a 
trespass,  for  which  the  Queen  shall  recover  only  damages;  and 
here  there  is  no  issue  to  be  tried,  inasmuch  as  there  is  a  demurrer 
in  law,  in  which  case  it  is  not  so  necessary  as  it  should  have  been 
if  issue  had  been  joined  triable  per  pais.  But  if  it  had  been  in  an 
action  real,  there  it  ought  to  have  been  shown  in  what  town  or 
place  the  land  was,  for  otherwise  the  sheriff  could  not  know  where 
to  put  the  party  in  seizin  if  he  recovered ;  whereas  here  there  is  no 
such  cause,  but  damages  only  are  recoverable  for  the  offence,  for 
which  reason  the  exception  was  disallowed. 

And  note,  that  by  the  Queen's  command  a  copy  of  the  patent 
made  to  the  Earl  was  delivered  to  the  Justices,  in  order  to  see  if 
there  was  anything  more  in  it  than  was  in  the  pleading,  which 
would  make  the  ores  and  mines  pass  or  not  to  the  Earl ;  for  she 
was  desirous  to  be  fully  apprised  of  the  interest  in  the  ores  and 
mines.  And  the  charter  was  in  this  form :  "  Sciatis  quod  nos  tam 
pro  meliore  et  ampliore  sustentatione  et  manutentione  statfis,  et 
dignitatis,  et  grades,  ad  quem  nuper  vocavimus  et  elegimus  prse- 
charissimum  consanguineum  nostrum  Thomam  Percy  comitem 
Northumbriae,  quam  pro  bono  et  strenuo  servitio,  quod  speravimus 
VOL.  XVII.— -26 


402  MINES  AND  MINERALS. 


Vo.  1.  —  Cue  of  MiiiM ;  Beg.  y.  Earl  of  VorUuimberlaiid,  FLowd.  887,  888. 

prsefatus  comes  et  posteritas  sua  nobis  haeredibus,  et  successoribus 
nostris  facient,  prout  antecessores  sui  progenitoribus  nostris  regibus 
Angliae  antehac  multipliciter  fecerint,  et  ad  humilem  petitionem 
ejusdem  comitis,  de  gratia  nostra  speciali,  ac  certft  scientifi,  et 
mero  motu  nostris  dedimus  et  concessimus, "  &c.  And  it  was  the 
opinion  of  Catline,  Chief  Justice  of  England,  that  the  words 
{ad  humilem  petitionem  ejusdem  comitis)  diminish  the  force  of  the 
words  (de  gratid  speciali^  ac  ex  certdL  scientid^  et  mero  motu),  for 
the  charter  shall  not  be  taken  to  proceed  purely  from  the  King's 
grace,  and  so  to  be  construed  most  strongly  against  the  King,  and 
most  favourably  for  the  patentee,  unless  it  is  merely  of  the  King's 
own  motion,  without  suit  of  the  party;  whereas  the  words  (ad 
humilem  petitionem  ejusdem  comitis)  show  that  the  suit  of  the  Earl 
was  one  of  the  causes  of  making  the  patent,  in  which  case  the 
patent  is  not  so  effectual  to  make  the  ores  and  the  mine  pass  as 
by  the  pleading  it  is  confessed  to  be.  And  afterwards  in  the  said 
Hilary  Term,  10  Elizabeth,  judgment  was  given  for  the  Queen, 
and  against  the  Earl,  as  follows:  — 

[This  further  record,  after  setting  forth  the  various  stages  of  the 

proceedings,  concluded  as  follows :]  — 
[338J       The  premises  being  seen  and  understood  by  the  Barons 

here,  and  mature  deliberation  amongst  them  being  there* 
upon  had,  because  it  seems  to  the  same  Barons  that  the  aforesaid 
pleas  by  the  aforesaid  Thomas,  Earl  of  Northumberland,  in  manner 
and  form  aforesaid  above  pleaded,  and  each  of  them,  and  the 
matter  therein  contained,  as  to  the  aforesaid  interruption  and  dis- 
turbance of  the  aforesaid  Thomas  Thurland  and  Daniel  Howseter, 
and  other  the  aforesaid  labourers  in  the  mines  and  ore  aforesaid,  as 
well  from  and  in  the  making  and  continuing  the  search  and 
digging  aforesaid  of  the  lands  and  mines  for  the  ore  and  metal 
aforesaid,  belonging  to  the  said  Lady  the  Queen  by  reason  of  her 
royal  prerogative  in  manner  and  form  in  the  aforesaid  information 
specified,  within  the  aforesaid  Wastlands,  called  Newlands,  in 
the  aforesaid  information  specified,  as  from  and  in  the  aforesaid 
taking  and  carrying  away  of  the  aforesaid  six  hundred  thousand 
pounds  weight  of  ore  and  metal  of  copper  aforesaid  there  in  form 
aforesaid  dug  up  and  laid  upon  the  land,  are  insufficient  in  law  to 
discharge  the  same  Earl  from  the  aforesaid  contempts  and  tres- 
passes, or  any  of  them,  by  him,  of,  for,  and  in  the  same  interrup- 
tion and  disturbance  in  form  aforesaid  done  and  perpetrated ;  it  is 


K.  C.  VOL.  XVU.]  SECT.  L  —  MINERAL  PROPERTY.  403 

Vo.  1.  —  Case  of  IQiim  ;  Beg.  y.  Earl  of  VorUmmberland,  Flowd.  838. 

considered  by  the  same  Barons  that  the  aforesaid  Thomas,  Earl  of 
Northumberland,  be  convicted  of  the  aforesaid  contempts  and 
trespasses  by  him,  of,  for,  and  in  the  aforesaid  interruption  and 
disturbance  of  the  aforesaid  Thomas  Thurland  and  Daniel  How- 
seter,  and  other  the  aforesaid  labourers  in  the  ores  and  mines 
aforesaid,  in  form  abovesaid  done  and  perpetrated;  and  that  the 
said  Lady  the  Queen  recover  against  the  aforesaid  Earl  of  North- 
umberland, her  damages  by  occasion  of  the  aforesaid  interruption 
and  disturbance  sustained.  But  because  it  is  unknown  what 
damages  the  same  Lady  the  Queen  has  sustained  by  occasion 
thereof,  the  sheriff  of  the  aforesaid  coimty  of  Cumberland  is  com- 
manded, that  by  the  oath  of  good  and  lawful  men  of  his  bailiwick, 
he  diligently  inquire  what  damages  the  said  Lady  the  Queen  has 
sustained  by  occasion  of  the  interruption  and  disturbance  afore- 
said; and  that  the  inquisition,  &c.  And  likewise  it  is  considered 
by  the  same  Barons  here,  that  the  aforesaid  Thomas,  Earl  of 
Northumberland,  as  to  the  aforesaid  intrusion  by  him  above  in  the 
information  aforesaid  supposed  to  be  made  into  the  aforesaid  waste 
or  mountainous  lands  called  Newlands,  in  the  same  information 
specified,  go  at  present  without  day,  saving  always  the  right  of  the 
Queen  if  at  another  time,  &a 

Nota  bene  by  the  Reporter. 

There  seems  to  me  to  be  a  diversity  between  a  mine  of  copper 
containing  in  it  gold,  and  a  mine  of  gold  containing  in  it  copper. 
For  when  it  is  called  a  mine  of  copper  containing  in  it  gold,  it  is 
to  be  intended  that  the  copper  is  the  greater,  and  the  gold  the  less, 
for  everything  contained  is  less  than  the  thing  which  contains  it, 
and  that  which  comprehends  another  thing  is  greater  than  the 
thing  comprehended ;  and  forasmuch  as  the  copper  is  the  greater, 
the  mine  takes  its  name  from  it,  and  is  called  a  mine  of  copper 
containing  gold.  And  for  the  same  reason  if  it  is  called  a  mine  of 
gold  containing  copper,  the  gold  from  whence  the  mine  has  its 
name  is  the  greater,  and  the  copper  the  less.  And  this  is  agree- 
able to  the  notion  of  those  who  have  treated  of  minerals,  as  George 
Agricola  and  Christopher  Eucelius  and  others.  From  whence  it 
follows  that  the  records  of  the  Exchequer,  which  prove  that  the 
King  had  the  mines  of  copper  containing  or  bearing  gold  or  silver, 
prove  that  the  King  had  the  whole  where  the  gold  and  silver  were 
the  les&     But  how  the  greater  or  the  less  shall  be  esteemed  some 


404  MINES  AND  MINERALS. 


Vo.  1. — Cue  of  mnM ;  Beg.  y.  Eazl  of  Vortlramberlaiid,  Flowd.  838,  839. 

are  in  doubt,  that  is  to  say,  whether  it  shall  be  taken  according  to 
the  quantity,  or  according  to  the  value.  For  some  say  it  shall  be 
esteemed  according  to  the  quantity,  and  therein  they  confess  that 
true  it  is,  as  to  the  quantity,  the  thing  which  comprehends  the 
other  is  greater  than  the  thing  comprehended,  as  of  a  hogshead  of 
wine,  or  a  barrel  of  ale,  for  the  hogshead  in  quantity  is  greater 
than  the  wine,  and  the  barrel  than  the  ale,  but  not  in  value,  and 
yet  it  takes  its  name  from  the  greater,  and  therefore  it  is  called  a 
hogshead  of  wine;  so  that  the  name  proceeds  from  the  greater. 
So  in  the  case  of  a  mine,  the  mine  of  copper  containing  gold  has 
its  name  from  the  greater  in  quantity,  but  not  in  value,  for  it  may 
properly  enough  be  said  that  of  a  mine  of  copper  containing  gold, 
the  gold  may  be  the  greatest  in  value.  And  thus  it  seems  to 
them  that  the  precedents  which  prove  that  the  King  ought  to 
have  mines  of  copper  or  lead  containing  gold  or  silver  prove 
nothing  against  the  assertion  of  the  three  Justicea  But  if  so  be 
the  mine  shall  take  its  name  from  the  greater  in  value,  and  not 

from  the  greater  in  quantity,  then  the  precedents  prove 
[*  339J   *  directly  contrary  to  the  opinion  of  the  three  Judges,  and 

confirm  the  opinion  of  the  others  who  were  the  majority. 
For  if  it  shall  be  taken  that  mines  of  copper  containing  gold  or 
silver  (which  is  to  be  understood,  where  the  copper  is  of  greater 
value,  and  the  gold  or  silver  of  less)  shall  belong  entirely  to  the 
King  by  the  precedents,  ergo  the  precedents  prove  the  law  to  be 
directly  contrary  to  the  opinion  of  the  three  Justices.  So  that  in 
order  to  understand  the  precedents,  it  is  to  be  known  whether  in 
the  words  (mines  of  copper  containing  gold  or  silver)  the  copper 
shall  be  taken  the  greater  in  quantity,  or  the  greater  in  value. 
And  it  seems  to  many  that  the  name  shall  be  taken  from  the  value, 
and  not  from  the  quantity,  for  that  everything  is  esteemed  accord- 
ing to  its  value ;  qucere  de  hoc. 

And  if  so  be  that  by  the  precedents  the  Crown  shall  have  the 
whole  mine  where  the  gold  or  silver  is  of  less  value  than  the  base 
metal,  yet  it  seems  reasonable  to  have  regard  to  the  value  of  the 
gold  or  silver,  for  if  there  is  no  more  than  a  quilful  of  gold  or 
silver  in  a  great  value  of  copper,  as  Bell  said,  it  is  not  reasonable 
that  so  small  a  quantity  should  be  respected,  but  the  quantity 
ought  to  be  such  as  is  of  some  value  in  itself  over  and  above  the 
charges  of  getting  it,  and  above  the  base  metal  consumed  therein. 
For  if  the  value  is  not  regarded,  but  the  gold  or  silver,  be  it  ever 


R.  C.  VOL.  XVII.]         SECT.  L  —  MINERAL  PROPERTY.  405 

VOb  1. — Case  of  IQiim  ;  Beg.  y.  Eaxl  of  Vorthiimberlaod,  Plowd.  838. 

80  little,  shall  entitle  the  Crown  to  the  whole  mine,  from  thence 
it  would  follow  that  the  Crown  would  have  all  the  mines  of  base 
metal  in  the  realm,  if  that  be  true  which  these  who  are  skilled  in 
re  metallica  have  written.  For  (as  the  ancient  authors  in  this  art 
affirm)  theie  are  but  six  kinds  of  metal  in  the  earth,  viz. ,  gold, 
silver,  tin,  copper,  lead,  and  iron,  for  that  which  is  called  in 
Latin  chalibs,  and  in  English  steel,  is  but  the  harder  part  of  iron, 
and  that  which  is  called  in  Latin  auricalcum,  and  in  English 
Lattin,  as  also  that  which  we  call  in  English  brass,  are  not 
metals  of  themselves,  but  are  a  composition  of  copper  and  other 
things.  For  there  is  a  stone  (whereof  we  have  a  great  number  in 
this  realm,  as  I  have  heard)  which  we  call  the  calamine  stone, 
and  which,  as  I  take  it,  is  the  same  stone  that  is  called  in  Latin 
eadmia,  and  by  some  lapis  calaminaris,  some  of  which  stones 
have  gold  in  them,  and  others  none,  and  this  stone  is  fusile,  and 
is  used  to  be  melted  with  copper,  and  from  the  copper  and  this 
stone,  mixed  and  melted  together,  Lattin  is  made,  which  is  more 
valuable  than  the  copper  alone,  for  the  said  stone  being  melted 
along  with  the  copper  makes  the  copper  more  flexible,  and  turns 
the  colour  of  it  from  red  to  yellow,  like  to  the  colour  of  gold, 
and  because  the  copper  melted  with  it  is  made  more  precious,  it  is 
of  greater  price,  and  brass  is  made  of  copper  mixed  and  melted 
along  with  tin  or  lead,  and  because  the  copper  itself  is  debased  by 
such  a  composition  with  a  moie  base  metal,  it  is  of  less  price.  So 
that  (as  the  ancient  authors  have  written)  there  are  but  the  said 
six  kinds  of  metals  fusil  and  malleable,  which  in  Latin  they  call 
corpora  metallica,  and  (as  Eucelius,  lib.  1,  c.  1,  says)  constant  ex 
sulphur e pair e,et  argento  vivo  matre.  For  he  says :  "  Principia  gene- 
rationis  veluti  deus  optimus  maximus  omnium  animalium  consti- 
tuit  marem  et  fseminam,  &c. ,  tali  modo  deus  in  rebus  etiam  metal- 
licis  constituit  generationis  principia  marem  et  fseminam,  et  veluit 
materiam  esse  omnium  metallorum  sulphur,  ut  patrem,  et  argentum 
vivum  ut  matrem,  quorum  nempe  coitu  omnia  fierent  metalla.* 
And  afterwards  he  says :  **  Etsi  autem  ex  his  duobus  principiis, 
sulphure  et  argento  vivo,  quasi  patre  et  matre  countibus  omnia 
metalla  procreantur,  quorum  multae  sunt  species  et  diverssB,  uatura 
tamen  semper  proponit  et  contendit  ad  perfectissimum  metallum, 
scilicet,  aurum.  Accidentia  vero  diversa  supervenientia  diversa 
transformant  metalla,  et  secundum  puritatem  et  impuritatem  sul- 
phuris  et  argenti  vivi  pura  et  impura  generantur  metalla,  veluti 


406  MINES  AND  MINERALS. 


Ho.  1.  —  Caae  of  lEines;  Beg.  ▼.  Earl  of  HorUramberluid,  Flowd.  889. 

ex  leprosis  parentibus  leprosi  procreantur  filii. "  And  afterwards 
he  says  that  gold  is  to  sulphur  and  quicksilver  "  quasi  filius  et 
perfectissimum  metallum  naturae  et  paululum  immutata  commix- 
tione  argenti  vivi,  fit  argentum,  quasi  filia  ignobilior  fratre  auro.  * 

And  the  other  metals,  viz.,  tin,  copper,  lead,  and  iron,  as 
imperfect  metals,  proceed  from  their  said  father  and  mother,  who 
were  by  accidents  become  imperfect,  veluti  leprosi  filii  ex  leprosis 
parentibtts. 

And  it  seems  by  the  assertion  of  Agricola  (lib.  10,  c.  10)  in  his 
book  de  re  metallicd,  that  there  is  naturally  in  these  base  metals 
some  portion  of  gold  or  silver,  for  thus  he  says :  "  Naturaliter  autem 
potissimum  auri  qusedam  portio  inest  in  argento,  et  in  sere ;  argenti 
quaedam  in  auro,  in  sere,  in  plumbo  nigro,  in  ferro ;  aeris  aliqua  in 
auro  in  argento,  in  plumbo  nigro  in  ferro ;  plumbi  nigri  aliqua  in 
argento ;  ferri  denique  quaedam  in  aere. '  And  he  goes  further,  and 
shows  the  way  by  which  the  one  metal  may  be  divided  from  the 
other  when  it  is  melting  in  the  vessel ;  so  that  according  to  his 
authority,  gold  and  silver  is  naturally  in  copper,  and  silver  is 
naturally  in  iron  and  lead.  And  it  is  to  be  observed  that  he  uses 
the  word  (crs)  for  copper,  for  that  is  the  proper  English  for  (ces), 
and  it  has  no  proper  signification  that  though  by  a  figure  much 
used.  Brass  and  Lattin  are  called  (ces),  because  they  consist  chiefly 
of  copper.  Wherefore  if  no  regard  should  be  had  to  the  quantity 
of  the  gold  or  silver  that  is  found  in  the  base  metal  (inasmuch  as 
there  is  naturally  some  in  every  base  metal),  the  King  would  have 
all  mines  of  base  metals  in  the  realm.  And  then  the  resolution  of 
all  the  Justices  and  Barons,  that  the  subject  shall  have  such 
mines  of  base  metal  which  are  void  of  gold  or  silver  in  his  own 
land,  is  vain  and  of  no  effect,  for  by  the  said  author  there  is  no 
such  mine  in  this  realm,  or  elsewhere;  so  that  such  resolution  is 
grounded  upon  an  ignorance  of  the  nature  of  base  mines.  And 
therefore  it  seems  to  be  reasonable  and  fit  to  consider  the  nature  of 
base  mines,  and  the  value  of  the  gold  or  silver  in  the  base  metal, 
and  that  it  should  be  at  least  of  such  value  as  to  counterbalance 
the  charges  of  getting  it,  or  else  in  my  opinion  it  is  not  reasonable 
that  it  should  draw  to  the  Crown  the  property  of  the  base  metal, 
but  the  proprietor  of  the  soil  ought  to  have  the  gold  and  silver  also 
along  with  the  base  metal.  But  this  precise  point  was  not  left 
to  the  Judges  to  determine,  for  they  were  discharged  of  that  by 
the  defendants'  confession  that  the  ore  contained  gold  or  silver 


R.  C.  VOL.  XVIL]  sect.  L  —  MINERAX  PROPERTY.  407 

Ho.  2.  —  HmnphziM  y.  Brogden,  12  d.  B.  739,  740. 

[*340]  which  shall  be  *  intended  the  best  for  the  Queen,  viz., 
that  it  was  of  siifl&cient  value ;  but  the  Earl  ought  to  have 
shown  that  the  ore  contained  some  gold  or  silver,  but  not  of  the 
greater  value,  nor  as  much  as  would  defray  the  charges  of  getting 
it,  absque  hoc,  that  it  contained  gold  or  silver  in  other  manner,  and 
then  by  this  or  such  like  pleading  the  Judges  would  have  been 
pressed  thereupon  in  point  of  judgment,  which  is  now  passed  over 
by  the  pleading. 

And  for  the  better  understanding,  whether  any  base  mines  are 
void  of  gold  or  silver,  it  is  good  to  know  authors,  and  experience, 
for  the  truth  of  this  matter  ought  to  direct  the  judgments  of  the 
Judges. 

Humphries  v.  Brogden. 

12  Q.  B.  739-757  (8.  c.  20  L.  J.  Q.  B.  10;  15  Jar.  124 ;  46  L.  T.  457). 

Mines,  —  Surface. — Right  to  Su^^port 

Action  on  the  case  by  the  occapier  of  the  surface  of  land  for  negligently  [739] 
and  improperly,  and  without  leaving  any  sufficient  pillars  and  supports, 
and  contrary  to  the  custom  of  mining  in  the  country  where,  &c.,  working  the 
subjacent  minerals,  per  quod  the  surface  gave  way.  Plea :  Not  guilty.  It  was 
proved  on  the  trial  that  plaintiff  was  in  occupation  of  the  surface,  and  defend- 
ants of  the  subjacent  minerals ;  but  there  was  no  evidence  how  the  occupation  of 
the  superior  and  inferior  strata  came  into  different  hands.  The  surface  was  not 
built  upon.  The  jury  found  that  the  defendants  had  worked  the  mines,  care- 
fully and  according  to  custom,  but  without  leaving  sufficient  support  for  the 
surface. 

Heldf  that  the  plaintiff  was,  on  this  finding,  entitled  to  have  the  verdict 
entered  for  him ;  for  that,  of  common  right,  the  owner  of  the  surface  is  entitled 
to  support  from  the  subjacent  strata ;  and,  if  the  owner  of  the  minerals  removes 
them,  it  is  his  duty  to  leave  sufficient  support  for  the  surface  in  its  natural  state. 

This  was  an  action  against  the  Durham  County  Coal  Company, 
sued  in  the  name  of  their  secretary.  On  the  trial,  before 
Coleridge,  J.,  at  the  Durham  *  Spring  Assizes,  1850,  [•740] 
the  jury,  in  answer  to  questions  put  by  the  learned  Judge, 
found  the  facts  specially.  His  Lordship  then  directed  a  verdict 
for  the  plaintiff,  giving  the  defendants  leave  to  move  to  enter  a 
verdict  for  them  upon  the  findings  of  the  jury.  Knowles,  in 
Easter  Term,  1850,  obtained  a  rule  nisi  accordingly.  In  Trinity 
Term,  1850  (on  the  23d  and  24th  May,  1850.  before  Lord  Camp- 
BELL,  Ch.  J.,  Patteson,  Coleridge,  and  Erle,  JJ.), 


408  MINES  AlO)  lilNEBAXS. 


Ho.  S.  — HnmphziM  ▼.  Brogden,  12  Q.  B.  740,  741. 


Watson  and  Joseph  Addison  showed  cause^  and  Knowles  and 
Hugh  Hill  supported  the  rule.  The  judgment  of  the  Court  states 
so  fully  the  nature  of  the  case,  the  pleadings,  and  the  aiguments 
and  authorities  adduced  on  both  sides,  as  to  render  any  further 
statement  unnecessary.  Cur.  adv.  vult 

Lord  Campbell,  Ch.  J. ,  now  delivered  the  judgment  of  the  Court 
This  is  an  action  on  the  case.  The  declaration  alleges  that  the 
plaintiff  was  possessed^  of  divers  closes  of  pasture  and  arable  land, 
situate,  &c.,  yet  that  the  company,  so  wrongfully,  carelessly, 
negligently,  and  improperly,  and  without  leaving  any  proper  and 
sufficient  pillars  or  supports  in  that  behalf,  and  contrary  to  the 
custom  and  course  of  practice  of  mining  used  and  approved  of  in 
the  country  where  the  mines  thereinafter  mentioned  are  situate, 
worked  certain  coal  mines  under  and  contiguous  to  the  said  closes, 
and  dug  for  and  got  and  moved  the  coals,  minerals,  earth,  and  soil 
of  and  in  the  said  mines,  that  by  reason  thereof  the  soil  and 
surface  of  the  said  closes  sank  in,  cracked,  swagged,  and  gave  way ; 
and  thereby,  &c.  The  only  material  plea  was.  Not  guilty. 
[*  741]  *  The  cause  coming  on  to  be  tried  before  my  Brother 
Coleridge  at  the  last  Spring  Assizes  for  the  county  of 
Durham,  it  appeared  that  the  plaintiff  was  possessed  of  the  closes 
described  in  the  declaration,  and  that  the  Durham  County  Coal 
Company  (who  may  sue  and  be  sued  by  their  secretary)  were 
lessees,  under  the  Bishop  of  Durham,  of  the  coal  mines  under 
them ;  but  there  was  no  other  evidence  whatever  as  to  the  tenure 
or  the  title  either  of  the  surface  or  of  the  minerals.  It  appeared 
that  the  company  had  taken  the  coals  under  the  plaintiff's  closes, 
without  leaving  any  sufficient  pillars  to  support  the  surface, 
whereby  the  closes  had  swagged  and  sunk,  and  had  been  consid- 
erably injured;  but  that,  supposing  the  surface  and  the  minerals  to 
have  belonged  to  the  same  person,  these  operations  had  not  been 
conducted  carelessly  or  negligently  or  contrary  to  the  custom  of 
the  country.  The  jury  found  that  the  company  had  worked 
carefully  and  according  to  the  custom  of  the  country,  but  without 
leaving  sufficient  pillars  or  supports ;  and  a  verdict  was  entered 
for  the  plaintiff  for  £110  damages,  with  leave  to  move  to  enter  a 
verdict  for  the  defendant,  if  the  Court  should  be  of  opinion  that 
under  these  circumstances  the  action  was  not  maintainable. 

The  case  was  very  learnedly  and  ably  argued  before  us  in  Easter 


B.  0.  VOL.  XVII.]  SECT.  I. — MINERAL  PROPERTY.  409 

Vo.  8.— HumplixiM  v.  Brogdoi,  12  d.  B.  741-748. 

and  Trinity  Terms  last     On  account  of  the  great  importance  of 
the  question,  we  have  taken  time  to  consider  of  our  judgment 

For  the  defendant  it  was  contended  that,  after  the  special  ^find- 
ing of  the  jury,  the  declaration  is  defective  in  not  alleging  that 
the  plaintiff  was  entitled  to  have  his  closes  supported  by  the  sub- 
jacent strata.  But  we  are  of  opinion  that  such  an  alle- 
gation is  unnecessary  to  *  raise  the  question  in  this  action,  [*  742] 
Whether  the  company,  although  they  did  not  work  the 
mines  negligently  or  contrary  to  the  custom  of  the  country,  were 
bound  to  leave  props  to  support  the  surface?  If  the  easement 
which  the  plaintiff  claims  exists,  it  does  not  arise  from  any  special 
grant  or  reservation,  but  is  of  common  right,  created  by  the  law, 
so  that  we  are  bound  to  take  notice  of  its  existence.  In  pleading, 
it  is  enough  to  state  the  facts  from  which  a  right  or  a  duty  arises. 
The  carefully  prepared  declaration  in  Littledale  v.  Lord  Lonsdale, 
2  H.  Bl.  267  {Earl  of  Lonsdale  v.  Littledale),  for  disturbing  the 
right  of  the  owner  of  the  surface  of  lands  to  the  support  of  the 
mineral  strata  belonging  to  another,  contains  no  express  allegation 
of  the  right ;  and,  if  the  omission  had  been  considered  important, 
it  probably  would  have  been  relied  upon,  rather  than  .the  objection 
that  a  peer  of  Parliament  was  not  liable  to  be  sued  in  the  Court 
of  King's  Bench  by  bill. 

We  have  therefore  to  consider,  whether,  when  the  surface  of 
land  (by  which  is  here  meant  the  soil  lying  over  the  minerals)  be- 
longs to  one  man,  and  the  minerals  belong  to  another,  no  evidence 
of  title  appearing  to  regulate  or  qualify  their  rights  of  enjoyment, 
the  owner  of  the  minerals  may  remove  them  without  leaving  sup- 
port sufficient  to  maintain  the  surface  in  its  natural  state  ?  This 
case  is  entirely  relieved  from  the  consideration  how  far  the  rights 
and  liabilities  of  the  owners  of  adjoining  tenements  are  affected 
by  the  erection  of  buildings ;  for  the  plaintiff  claims  no  greater 
degree  of  support  for  his  lands  than  they  must  have  required  and 
enjoyed  since  the  globe  subsisted  in  its  present  form. 

*  Where  portions  of  the  freehold,  lying  one  over  another  [*  743] 
perpendicularly,  belong  to  different  individuals,  and  con- 
stitute (as  it  were)  separate  closes,  the  degree  of  support  to  which 
the  upper  is  entitled  from  the  lower  has  as  yet  by  no  means  been 
distinctly  defined.  But,  in  the  case  of  adjoining  closes  which 
belong  respectively  to  different  persons  from  the  surface  to  the 
centre  of  the  earth,  the  law  of  England  has  long  settled  the  degree 


410  MINES  AND  MINERALS. 


Ho.  2.  —  HnmphziM  ▼.  Brogden,  13  d.  B.  748,  744. 


of  lateral  support  which  each  may  claim  from  the  other ;  and  the 
principle  upon  which  this  rests  may  guide  us  to  a  safe  solution 
of  the  question  now  before  us. 

In  2  Kolle's  Abridgment,  564,  tit.  Trespass  (I),  pi.  1,  it  is 
said:  "If  A.,  seised  in  fee  of  copyhold  land  next  adjoining  land 
of  B. ,  erect  a  new  house  on  his  copyhold  land  "  (I  may  remark 
that  the  circumstance  of  A. 's  land  being  copyhold  is  wholly 
immaterial),  "  and  part  of  the  house  is  erected  on  the  confines  of 
his  land  next  adjoining  the  land  of  B.,  if  B.  afterwards  digs  his 
land  near  to  the  foundation  of  the  house  of  A. ,  but  not  touching 
the  land  of  A.,  whereby  the  foundation  of  the  house  and  the  house 
itself  fall  into  the  pit,  still  no  action  lies  at  the  suit  of  A.  against 
B.,  because  this  was  the  fault  of  A.  himself  that  he  built  his 
house  so  near  to  the  land  of  B. ,  for  he  could  not  by  his  act  hinder 
B.  from  making  the  most  profitable  use  of  B.  's  own  land ;  Easter 
Term,  15  Car.  B.  R,  JVilde  v.  Minsterley.  But,  semble  that  a  man 
who  has  land  next  adjoining  to  my  land  cannot  dig  his  land  so 
near  to  my  land  that  thereby  my  land  shall  fall  into  his  pit;  and 
for  this,  if  an  action  were  brought,  it  would  lie. "  This  doctrine 
is  re.cognised  by  Lord  C.  B.  Comyns,  Com.  Dig.,  Action 
[*  744]  upon  the  case  for  a  nuisance  (A) ;  by  Lord  Tentkrden,  *  in 
Wyatt  V.  Harrison,  3  B.  &  Ad.  871,  876  (37  R  R  566) ; 
and  by  other  eminent  Judges.  It  stands  on  natural  justice,  and 
is  essential  to  the  protection  and  enjoyment  of  property  in  the 
soil.  Although  it  places  a  restraint  on  what  a  man  may  do  with 
his  own  property,  it  is  in  accordance  with  the  precept,  sic  utere 
tuo  ut  alienum  non  Icedas,  As  is  well  observed  by  a  modern  writer : 
**  If  the  neighbouring  owners  might  excavate  their  soil  on*  every 
side  up  to  the  boundary  line  to  an  indefinite  depth,  land  thus 
deprived  of  support  on  all  sides  could  not  stand  by  its  own  coher- 
ence alone."     Gale  on  Easements,  p.  216. 

This  right  to  lateral  support  from  adjoining  soil  is  not,  like 
the  support  of  one  building  upon  another,  supposed  to  be  gained 
by  grant,  but  is  a  right  of  property  passing  with  the  soil.  If 
the  owner  of  two  adjoining  closes  conveys  away  one  of  them,  the 
alienee,  without  any  grant  for  that  purpose,  is  entitled  to  the 
lateral  support  of  the  other  close  the  very  instant  when  the  con- 
veyance is  executed,  as  much  as  after  the  expiration  of  twenty 
years,  or  any  longer  period.  Pari  ratione,  where  there  are  separate 
freeholds  from  the  surface  of  the  land  and  the  minerals  belonging 


B.  C.  VOL.  XVIL]  sect.  I.  —  MINER A.L  PROPERTY.  411 

Vo.  2.  — Hnmpliries  v.  Bn^don,  19  d.  B.  7M-746. 

to  different  owners,  we  are  of  opinion  that  the  owner  of  the  sur- 
face, while  unincumbered  by  buildings  and  in  its  natural  state,  is 
entitled  to  have  it  supported  by  the  subjacent  mineral  strata. 
Those  strata  may  of  course  be  removed  by  the  owner  of  them,  so 
that  a  sufficient  support  for  the  surface  is  left;  but  if  the  surface 
subsides  and  is  injured  by  the  removal  of  these  strata,  although, 
on  the  supposition  that  the  surface  and  the  minerals  belong  to  the 
same  owner,  the  operation  may  not  have  been  conducted 
*  negligently  nor  contrary  to  the  custom  of  the  country,  [*  745J 
the  owner  of  the  surface  may  maintain  an  action  against 
the  owner  of  the  minerals  for  the  damage  sustained  by  the  sub- 
sidence. Unless  the  surface  close  be  entitled  to  this  support 
from  the  close  underneath,  corresponding  to  the  lateral  support  to 
which  it  is  entitled  from  the  adjoining  surface  close,  it  cannot  be 
securely  enjoyed  as  property ;  and  under  certain  circumstances,  as 
where  the  mineral  strata  approach  the  surface  and  are  of  great 
thickness,  it  might  be  entirely  destroyed.  We  likewise  think 
that  the  rule  giving  the  right  of  support  to  the  surface  upon  the 
minerals,  in  the  absence  of  any  express  grant,  reservation,  or  cove- 
nant, must  be  laid  down  generally  without  reference  to  the  nature 
of  the  strata,  or  the  difficulty  of  propping  up  the  surface,  or  the 
comparative  value  of  the  surface  and  the  minerala  We  are  not 
aware  of  any  principle  upon  which  qualifications  could  be  added 
to  the  rule ;  and  the  attempt  to  introduce  them  would  lead  to  un- 
certainty and  litigation :  greater  inconvenience  cannot  arise  from 
this  rule,  in  any  case,  than  that  which  may  be  experienced  where 
the  surface  belongs  to  one  owner,  and  the  minerals  to  another, 
who  cannot  take  any  portion  of  them  without  the  consent  of  the 
owner  of  the  surface.  In  such  cases  a  hope  of  reciprocal  advan- 
t^e  will  bring  about  a  compromise,  advantageous  to  the  parties 
and  to  the  public. 

Something  has  been  said  of  a  right  to  a  reasonable  support  for 
the  surface :  but  we  cannot  measure  out  degrees  to  which  the  right 
may  extend ;  and  the  only  reasonable  support  is  that  which  will 
protect  the  surface  from  subsidence,  and  keep  it  securely  at  its 
ancient  and  natural  level. 

•  The  defendant's  counsel  have  argued  that  the  analogy  as   [*  746] 
to  the  support  to  which  one  superficial  close  is  entitled  from 
the  adjoining  superficial  close  cannot  apply  where  the  surface  and 
the  minerals  are  separate  tenements  belonging  to  different  owners, 


412  MINES  AND  MINEBALS. 


Vo.  9.  — HwiLphriM  V.  Brogdan,  12  Q.  B.  746,  747. 


because  there  must  have  been  unity  of  title  of  the  surface  and  the 
minerals,  and  the  rights  of  the  parties  must  depend  upon  the  con- 
tents of  the  deeds  by  which  they  were  severed  But,  in  contem- 
plation of  law,  all  property  in  land  having  been  in  the  Crown,  it 
is  easy  to  conceive  that,  at  the  same  time,  the  original  grant  of 
the  surface  was  made  to  one,  and  the  minerals  under  it  to  another, 
without  any  express  grant  or  reservation  of  any  easement  Sup- 
pose (what  has  generally  been  the  fact)  that  there  has  been  in  a 
subject  unity  of  title  from  the  surface  to  the  centre :  if  the  surface 
and  the  minerals  are  vested  in  different  owners  without  any  deeds 
appearing  to  regulate  their  respective  rights,  we  see  no  difficulty  in 
presuming  that  the  severance  took  place  in  a  manner  which  would 
confer  upon  the  owner  of  the  surface  a  right  to  the  support  of  tlie 
minerals.  If  the  owner  of  the  entirety  is  supposed  to  have  alien- 
ated the  surface,  reserving  the  minerals,  he  cannot  be  presumed  to 
have  reserved  to  himself,  in  derogation  of  his  grant,  the  power  of 
removing  all  the  minerals  without  leaving  a  support  for  the  sur- 
face ;  and,  if  he  is  supposed  to  have  alienated  the  minerals,  reserv- 
ing the  surface,  he  cannot  be  presumed  to  have  parted  with  the 
right  to  that  support  for  the  surface  by  the  minerals  which  it  had 
ever  before  enjoyed.  Perhaps  it  may  be  said  that,  if  the  grantor 
of  the  minerals,  reserving  the  surface,  seeks  to  limit  the  right  of 

the  grantee  to  remove  them,  he  is  acting  in  derogation 
[*  747]  of  his  grant,  and  is  seeking  to  hinder  the  *  grantee  from 

doing  what  he  likes  with  his  own  but,  generally  speak- 
ing, mines  may  be  profitably  worked,  leaving  a  support  to  the 
surface  by  pillars  or  ribs  of  the  minerals,  although  not  so  profit- 
ably as  if  the  whole  of  the  minerals  be  removed ;  and  a  man  must 
so  use  his  own  as  not  to  injure  his  neighbour. 

The  books  of  reports  abound  with  decisions  restraining  a  man's 
acts  upon  and  with  his  own  property,  where  the  necessary  or 
probable  consequence  of  such  acts  is  to  do  damage  to  others.  The 
case  of  common  occurrence  nearest  to  the  present  is,  where  the 
upper  story  of  a  house  belongs  to  one  man  and  the  lower  to 
another.  The  owner  of  the  upper  story,  without  any  express  grant, 
or  enjoyment  for  any  given  time,  has  a  right  to  the  support  of  the 
lower  story.  If  this  arises  (as  has  been  said)  from  an  implied 
grant  or  covenant,  why  is  not  a  similar  grant  or  covenant  to  be 
implied  in  favour  of  the  owner  of  the  surface  of  land  against  the 
owner  of  the  minerals  ?    If  the  owner  of  an  entire  house,  convey- 


B.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  413 

Vo.  2.  —  HunphiiM  v.  Brogden,  19  Q.  B.  747-749. 

ing  away  the  lower  story  only,  is,  without  any  express  reservation, 
entitled  to  the  support  of  the  lower  story  for  the  benefit  of  the 
upper  story,  why  should  not  an  owner  of  land,  who  conveys  away 
the  minerals  only,  be  entitled  to  the  support  of  the  minerals  for  the 
benefit  of  the  surface  ? 

I  will  now  refer,  in  chronological  order,  to  the  cases  which  were 
cited  in  the  argument ;  and  I  think  that  none  of  them  will  be  found 
in  any  degree  to  impugn  the  doctrine  on  which  our  decision  rests. 

In  Bateson  v.  Green,  5  T.  E.  411,  Buller,  J.,  says:  "Where 
there  are  two  distinct  rights,  claimed  by  different  parties, 
which  encroach  on  each  other  in  the  enjoyment  of  *  them,  [*  748] 
the  question  is,  which  of  the  two  rights  is  subservient  to 
the  other. "  And  it  was  held  that  the  lord  may  dig  clay  pits  on 
a  common,  or  empower  others  to  do  so,  without  leaving  sufficient 
herbage  for  the  commoners,  if  such  right  can  be  proved  to  have 
been  always  exercised  by  the  lord.  So,  here,  the  right  of  the 
owner  of  the  minerals  to  remove  them  may  be  subservient  to  the 
right  of  the  owner  of  the  surface  to  have  it  supported  by  them. 

Peytcm  v.  The  Mayor,  cfec.  of  London,  9  B.  &  C.  725  (33  E.  R 
311),  was  cited  to  show  the  necessity  for  introducing  into  the 
declaration  an  averment  that  the  plaintiff  was  entitled  to  the  ease- 
ment or  right  which  is  the  foundation  of  the  action :  but  the  ease- 
ment there  claimed  was  a  right  of  support  of  one  building  upon 
another,  which  could  arise  only  from  a  grant  actual  or  implied ; 
and  there  Lord  Tbnterdbn  says :  "  The  declaration  in  this  case 
does  not  allege,  as  a  fact,  that  the  plaintiffs  were  entitled  to  have 
their  house  supported  by  the  defendants'  house,  nor  does  it  in  our 
opinion  contain  any  allegation  from  which  a  title  to  such  support 
can  be  inferred  as  a  matter  of  law. "  In  the  case  at  bar,  we  are  of 
opinion  that  the  declaration  alleges  facts  from  which  the  law 
infers  the  right  of  support  which  the  plaintiff  claims. 

Wyatt  V.  Harrison,  3  B.  &  Ad.  871  (37  E.  R  566),  decided 
that  the  owner  of  a  house,  recently  erected  on  the  extremity  of 
his  land,  could  not  maintain  an  action  against  the  owner  of 
the  adjoining  land  for  digging  in  his  own  land  so  near  to  the 
plaintiff's  house  that  the  house  fell  down :  but  the  reason  given 
is,  that  the  plaintiff  could  not,  by  putting  an  additional 
weight  upon  his  land,  and  so  *  increasing  the  lateral  pres-  [*  749] 
sure  upon  the  defendant's  land,  render  unlawful  any  opera- 
tion in  the  defendant's  land  which  before  would  have  caused  no 


414  MINES  AND  MINEBALS. 


Vo.  2. —  HnmphziM  v.  Brogden,  12  Q.  B.  740^  750. 


damage ;  and  the  Court  intimated  an  opinion  that  the  action  would 
have  been  maintainable,  not  only  if  the  defendant's  digging  would 
have  made  the  plaintiff's  land  crumble  down  unloaded  by  any 
building,  but  even  if  the  house  had  stood  twenty  years.  Where 
a  house  has  been  supported  more  than  twenty  years  by  land  be- 
longing to  another  proprietor,  with  his  knowledge,  and  he  digs 
near  the  foundation  of  the  house,  whereby  it  falls,  he  is  liable  to 
an  action  at  the  suit  of  the  owner  of  the  house.  StanseU  v.  Jol- 
lard,  1  Selw.  N.  P.  457  (11th  ed.),  and  Side  v.  Thomborough, 
2  Carr.  &  Kir.  250.  Although  there  may  be  some  difficulty  in 
discovering  whence  the  grant  of  the  easement  in  respect  of  the 
house  is  to  be  presumed,  as  the  owner  of  the  adjoining  land  cannot 
prevent  its  being  built,  Jind  may  not  be  able  to  disturb  the  enjoy- 
ment of  it  without  the  most  serious  loss  or  inconvenieuQe  to  him- 
self, the  law  favours  the  preservation  of  enjoyments  acquired  by 
the  labour  of  one  man  and  acquiesced  in  by  another  who  has  the 
power  to  interrupt  them ;  and  as,  on  the  supposition  of  a  grant, 
the  right  to  light  may  be  gained  from  not  erecting  a  wall  to 
obstruct  it,  the  right  to  support  for  a  new  building  erected  near 
the  extremity  of  the  owner's  land  may  be  explained  on  the  same 
principle. 

In  Dodd  V.  Holme,  1  A.  &  E.  493,  where  there  is  a  good  deal  of 
discussion  respecting  the  rights  of  owners  of  adjoining  lands  or 
houses,  no  point  of  law  was  determined,  as  the  case  turned 
[*  750]  upon  the  allegation  in  the  declaration  that  *  the  defendants 
dug  "  carelessly,  negligently,  unskilfully,  and  improperly, ' 
whereby  "  the  foundations  and  walls "  of  the  plaintiff's  house 
**  gave  way. "  The  plaintiff's  house  was  proved  to  have  been  in  a 
very  bad  condition ;  but  Lord  Denman  said  that  the  defendant  had 
no  right  to  accelerate  its  fall. 

The  Court  of  Exchequer,  in  Partridge  v.  Scott,  3  M.  &  W.  220, 
concurred  in  the  law  before  laid  down  in  this  Court,  that  a  right 
to  the  support  of  the  foundation  of  a  house  from  adjoining  land 
belonging  to  another  proprietor  can  only  be  acquired  by  grant,  and 
that,  where  the  house  was  built  on  excavated  land,  a  grant  is  not 
to  be  presumed  till  the  house  has  stood  twenty  years  after  notice 
of  the  excavation  to  the  person  supposed  to  have  made  the  grant ; 
but  nothing  fell  from  any  of  the  Judges  questioning  the  right  to 
support  which  land,  while  it  remains  in  its  natural  state,  has 
been  said  to  be  entitled  to  from  the  adjoining  land  of  another 


B.  a  VOL.  XVIL]  sect.  I.  —  MINERAL  PROPERTY.  415 

Ko.  2.  —  HnmphziM  v.  Brogden,  12  Q.  B.  760-762. 

proprietor.  Some  land  of  the  plaintiflf's  not  covered  with  build- 
ings had  likewise  sunk,  in  consequence  of  the  defendant's  opera- 
tions in  his  own  land ;  but  the  Court,  in  directing  a  verdict  to  be 
entered  for  the  defendants  on  the  whole  declaration,  seems  to  have 
thought  that  the  sinking  of  the  plaintiff's  land  was  consequential 
upon  the  fall  of  the  houses,  or  would  not  have  taken  place  if  his 
own  land  had  not  been  excavated. 

The  Judges  in  the  Exchequer  Chamber  held,  upon  a  writ  of 
error  from  the  Court  of  Common  Pleas  in  Chadmck  v.  Trower, 
6  Bing.  N.  C.  1 ;  see  Trower  v.  Chadvnck,  3  Bing.  K  C.  334,  that 
the  mere  circumstance  of  juxtaposition  does  not  render  it  necessary 
for  a  person  who  pulls  down  his  wall  to  give  notice  of  his 
intention  *  to  the  owner  of  an  adjoining  wall  which  rests  [*  751] 
upon  it,  and  that  he  is  not  even  liable  for  carelessly  pull- 
ing  down  his  wall  if  he  had  not  notice  of  the  existence  of  the 
adjoining  wall :  but  this  decision  proceeds  upon  the  want  of  any 
allegation  or  proof  of  a  right  of  the  plaintiff  to  have  his  wall 
supported  by  the  defendant's,  and  does  not  touch  the  rights  or 
obligations  of  conterminous  proprietors,  where  the  tenement  to  be 
supported  remains  in  its  natural  condition. 

Next  comes  the  valuable  case  of  Harris  v.  Bydin^,  5  M.  &  W. 
60,  which  would  be  a  direct  authority  in  favour  of  the  present 
plaintiff,  if  it  did  not  leave  some  uncertainty  as  to  the  effect  of 
the  averment,  in  the  declaration,  of  working  "  carelessly,  negli- 
gently, and  improperly, "  and  as  to  whether  the  plaintiff  was  con- 
sidered absolutely  entitled  to  have  his  land  supported  by  the 
subjacent  strata,  to  whatever  degree  the  affording  of  this  support 
might  interfere  with  the  defendant's  right  to  work  the  minerals. 
There  one  seized  in  fee  of  land  conveyed  away  the  surface,  reserv- 
ing to  himself  the  minerals  with  power  to  enter  upon  the  surface 
to  work  them ;  and  it  is  said  to  have  been  held  that,  under  this 
reservation,  he  was  not  entitled  to  take  all  the  minerals,  but  only 
so  much  as  **  could  be  got,  leaving  a  reasonable  support  to  the  sur- 
face *  (p.  70).  The  case  was  decided  upon  a  demurrer  to  certain 
pleas  justifying  under  the  reservation,  and  the  declaration  alleged 
careless,  negligent,  and  improper  working,  which  there  must  be 
considered  as  admitted,  whereas  here  it  is  negatived  by  the  ver- 
dict ;  but  the  Barons,  in  the  very  comprehensive  and  mas- 
terly judgment  which  they  delivered  seriatim,  seem  all  *  to  [•  752] 
have  thought  that  the  reservation  of  the  minerals  would 


416  MINES  AND  MINERALS. 


Vo.  2.  —  Hunplixiei  ▼.  Brogden,  12  Q.  B.  762,  753. 


not  have  justified  the  defendants  in  depriving  the  suiface  of  a 
complete  support,  however  carefully  he  might  have  proceeded  in 
removing  them.  Lord  Abinger  says :  "  The  plea  is  no  answer, 
because  it  does  not  set  forth  any  sufficient  ground  to  justify  the 
defendants  in  working  the  mines  in  such  a  manner  as  not  to  leave 
sufficient  support  for  the  land  above,  which  is  alleged  by  the 
declaration  to  be  a  careless,  negligent,  and  improper  mode  of 
working  them. "  Parke,  B.  ,  observes :  It  never  could  have  been 
in  the  contemplation  of  the  parties  "  that,  by  virtue  of  this  reser- 
vation of  the  mines,  the  grantor  should  be  entitled  to  take  the 
whole  of  the  coal  and  let  down  the  surface,  or  injure  the  enjoyment 
of  it ; "  and,  again :  **  This  plea  is  clearly  bad,  because  the  defend- 
ants do  not  assign  that  in  taking  away  the  coal  they  did  leave  a 
sufficient  support  for  the  surface  in  its  then  state. "  "  The  ques- 
tion is, '  says  Alderson,  B.  ,  "  whether  the  grantor  is  not  to  get 
the  minerals  which  belong  to  him,  and  which  he  has  reserved  to 
himself  the  right  of  getting,  in  that  reasonable  and  ordinary  mode 
in  which  he  would  be  authorised  to  get  them,  provided  he  leaves 
a  proper  support  for  the  land  which  the  other  i)arty  is  to  enjoy  ? " 
My  Brother  Maule,  then  a  Judge  of  the  Court  of  Exchequer,  says, 
in  the  course  of  his  luminous  judgment :  The  right  of  the  defend- 
ants ''  to  get  the  mines  is  the  right  of  the  mine-owners,  as  against 
the  owner  of  the  land  which  is  above  it  That  right  appears  to 
me  to  be  very  analogous  to  that  of  a  person  having  a  room  in  a 
house  over  another  man's  room,  or  an  acre  of  land  adjoining 
another  man's  acre  of  land."  Parke,  B.,  that  he  might  not  be 
misunderstood  as  to  the  right  of  the  owner  of  the  surface, 
[*  753]  afterwards  *  adds :  *  I  do  not  mean  to  say  that  all  the  coal 
does  not  belong  to  the  defendants,  but  that  they  cannot 
get  it  without  leaving  sufficient  support '  It  seems  to  have  been 
the  unanimous  opinion  of  the  Court  that  there  existed  the  natural 
easement  of  support  for  the  upper  soil  from  the  soil  beneath,  and 
that  the  entire  removal  of  the  inferior  strata,  however  skilfully 
done,  would  be  actionable,  if  productive  of  damage  by  withdraw- 
ing that  degree  of  support  to  which  the  owner  of  the  surface  was 
entitled,  the  duty  of  the  owner  of  the  servient  tenement  forbidding 
him  to  do  any  act  whereby  the  enjoyment  of  the  easement  could 
be  disturbed. 

The  counsel  for  the  defendant  cited  and  relied  much  upon  the 
case  of  Acton  v.  Blunddl,  12  M.  &  W.  324,  in  which  it  was  held 


B.  a  VOL.  xvn.]       sect.  i. — minebax  property.  417 

Ko.  2.  —  HnmphriM  ▼.  Brogdsn,  12  Q.  B.  75^-750. 

that  a  landowner,  who,  by  mining  operations  in  his  own  lands, 
directs  a  subterraneous  current  of  water,  is  not  liable  to  an  action 
at  the  suit  of  the  owner  of  the  adjoining  land,  whose  well  is 
thereby  laid  dry.  But  the  right  to  running  water  and  the  right  to 
have  land  supported  are  so  totally  distinct,  and  depend  upon  such 
different  principles,  that  there  can  be  no  occasion  to  show  at 
greater  length  how  the  decision  is  inapplicable. 

We  have  now  to  mention  the  case  of  Hilton  v.  Lord  Granville^ 
6  Q.  B.  701.  A  writ  of  error  may  probably  be  brought  in  this 
case  when  all  the  issues  at  fact  have  been  disposed  of;  and  noth- 
ing which  I  now  say  is  to  preclude  me  from  forming  any  opinion 
upon  it,  should  I  ever  hear  it  argued.  If  well  decided,  the 
plaintiff  is  justified  in  relying  upon  it ;  for  it  is  strongly 
in  point  This  *  Court  there  held  that  a  prescription  or  [*  754] 
a  custom  within  a  manor  for  the  lord,  who  is  seised  in  fee  •. 
of  the  mines  and  collieries  therein,  to  work  them  under  any 
dwelling-houses,  buildings,  and  lands,  parcel  of  the  manor,  doing 
no  unnecessary  damage,  and  paying  to  the  tenants  and  occupiers 
of  the  surface  of  lands  damaged  thereby  a  reasonable  compensation 
for  the  use  of  the  surface  of  the  lands,  but  without  making  com- 
pensation for  any  damage  occasioned  to  any  dwelling-houses  or 
other  buildings  within  or  parcel  of  the  manor  by  or  for  the  pur- 
pose of  working  the  said  mines  and  collieries,  is  void  as  being 
unreasonable.  Lord  Denman,  Ch.  J.,  said:  "  A  claim  destructive 
of  the  subject-matter  of  the  grant  cannot  be  set  up  by  any  usage. 
Even  if  the  grant  could  be  produced  in  specie,  reserving  a  right  in 
the  lord  to  deprive  his  grantee  of  the  enjoyment  of  the  thing 
granted,  such  a  clause  must  be  rejected  as  repugnant  and  absurd. 
That  the  prescription  or  custom  here  pleaded  has  this  destructive 
effect,  and  is  so  repugnant  and  void,  appears  to  us  too  clear  from 
the  simple  statement  to  admit  of  illustration  by  argument ' 

The  most  recent  case  referred  to  was  Smith  v.  Kenrick,  7  C.  B. 
515,  564,  in  which  the  Court  of  Common  Pleas,  after  great  delib- 
eration, held  that  it  is  the  right  of  each  of  the  owners  of  adjoin- 
ing mines,  where  neither  mine  is  subject  to  any  servitude  to  the 
other,  to  work  his  own  mine,  as  far  as  the  flow  of  water  is  con- 
cerned, in  the  manner  which  he  deems  most  convenient  and  bene- 
ficial to  himself,  although  the  natural  consequence  may 
be  that  some  prejudice  will  accrue  to  the  owner  *  of  the  [•  755] 
adjoining  mine ;  so  that  such  prejudice  does  not  arise  from 
VOL.  XVII.  —  27 


418  MINES  AND  MINERALS. 


Ko.  d.  — Hnmphxiet  ▼.  Brogden,  12  Q.  B.  755,  756. 


the  negligent  or  malicious  conduct  of  his  neighbour.  But  no 
question  arose  there  respecting  any  right  to  support ;  the  contro- 
versy being  only  respecting  the  obligation  to  protect  an  adjoining 
mine  from  water  which  may  flow  into  it  by  the  force  of  gravita- 
tion. And  in  the  very  learned  judgment  of  the  Court,  delivered 
by  my  Brother  Cresswell,  there  is  nothing  laid  down  to  coimte- 
nance  the  doctrine  that,  in  a  case  circumstanced  like  this  which 
we  have  to  determine,  the  owner  of  the  minerals  may,  if  not 
chargeable  with  malice  or  negligence,  remove  them  so  as  to  destroy 
or  damage  the  surface  over  them  which  belongs  to  another. 

We  have  attempted  without  success  to  obtain  from  the  Codes 
and  jurists  of  other  nations  information  and  assistance  respecting 
the  rights  and  obligations  of  persons  to  whom  sections  of  the  soil, 
divided  horizontally,  belong  as  separate  properties.  This  penury, 
where  the  subject  of  servitudes  is  so  copiously  and  discriminately 
treated,  probably  proceeds  from  the  subdivision  of  the  surface  of 
the  land  and  the  minerals  under  it  into  separate  holdings  being 
peculiar  to  England.  Had  such  subdivision  been  known  in  coun- 
tries under  the  jurisdiction  of  the  Eoman  civil  law,  its  incidental 
rights  and  duties  must  have  been  exactly  defined,  when  we  dis- 
cover the  right  of  adjoining  proprietors  of  lands  to  support  from 
lateral  pressure  leading  to  such  minute  regulations  as  the  follow- 
ing :  "  Si  quis  sepera  ad  alienum  prsedium  fixerit,  inf oderitque, 
terminum  ne  excedito:  si  maceriam,  pedem  relinquito:  si  ver6 
domum,  pedes  duos:  si  sepulchrum  aut  scrobem  foderit,  quan- 
tum profunditatis  habuerint,  tantum  spatii  relinquito: 
[*  756]  *  si  puteum,  passfts  latitudinem.  *  Dig.  Lib.  X.  Tit  L 
(Finium  regundorum)  s.   13. 

The  Code  Napoleon  likewise  recognizes  the  support  to  which  the 
owners  of  adjoining  lands  are  reciprocally  entitled,  but  contains 
nothing  which  touches  the  question  for  our  decision  more  closely 
than  the  following  article  on  "  Natural  Servitudes. "  ^  **  Les  fonds 
inf^rieurs  sont  assujettis,  envers  ceux  qui  sont  plus  ^lev&,  k 
recevoir  les  eaux  qui  en  d^coulent  naturellement  sans  que  la  main 
de  rhomme  y  ait  contribu^. "  "  Le  propri^taire  sup^rieur  ne  pent 
rien  faire  qui  aggrave  la  servitude  du  fonds  inf^rieur. '  Code 
Civil,  liv.  ii.  tit  iv.  ch.  i.  art  640.  But  reference  is  here  made 
to  adjoining  fields  on  a  declivity,  not  to  the  surface  of  land,  and 
the  minerals,  being  held  by  different  proprietors. 

^  "  Servitades  qui  derivent  de  la  situation  des  lieox." 


R,  C.  VOL.  XVU.]  SECT.  I.  —  MINERAL  PROPERTY.  419 

Vof.  1, 2.  —  Caae  of  IOxim;  Humphries  ▼.  Brogden.  —  Kotet. 

The  American  lawyers  write  learnedly  on  the  support  which 
may  be  claimed  for  land  from  lateral  pressure,  and  for  buildings 
which  have  long  rested  against  each  other,  but  are  silent  as  to  the 
support  which  the  owner  of  the  surface  of  lands  may  claim  from 
the  subjacent  strata  when  possessed  by  another.  See  Kent's 
Commentaries,  Part  vi.  Lecture  lii.  vol.  iii.  p.  434,  ed.  1840. 

However,  in  Erskine's  Institute  of  the  Law  of  Scotland,  treat- 
ing of  the  servitude,  Oneris  ferendi,  the  very  learned  author  has 
the  following  passage,  which  well  illustrates  the  principle  on 
which  our  decision  is  founded :  "  Where  a  house  is  divided  into 
different  floors  or  stories,  each  floor  belonging  to  a  different  owner, 
which  frequently  happens  in  the  city  of  Edinbui^h, "  "  the  propri- 
etor of  the  ground  floor  is  bound  merely  by  the  nature  and 
condition  of  his  property,  without  any  servitude,  *  not  [•  757] 
only  to  bear  the  weight  of  the  upper  story,  but  to  repair 
his  own  property,  that  it  may  be  capable  of  bearing  that  weight. " 
**  The  proprietor  of  the  ground  story  is  obliged  to  uphold  it  for  the 
support  of  the  upper,  and  the  owner  of  the  upper  must  uphold  that 
as  a  roof  or  cover  to  the  lower.*  Book  ii.  tit  9,  s.  11,  vol.  i. 
p.  433  (Ivory's  ed.  1828). 

For  these  reasons,  we  are  all  of  opinion  that  the  present  action 
is  maintainable,  notwithstanding  the  negation  of  negligence  in  the 
working  of  the  mines ;  and  that  the  rule  to  enter  a  verdict  for  the 
defendant  must  be  discharged.  We  need  hardly  say  that  we  do 
not  mean  to  lay  down  any  rule  applicable  to  a  case  where  the 
primd  fade  rights  and  liabilities  of  the  owner  of  the  surface  of  the 
land  and  of  the  subjacent  strata  are  varied  by  the  production  of 
title  deeds  or  by  other  evidence.  Huh  discharged, 

ENGLISH  NOTES. 

If  there  has  been  a  grant  of  land  by  the  Crown  under  a  simple  reserva- 
tion of  mines,  and  without  reserving  any  right  of  entry,  the  Crown  cannot 
grant  to  another  the  right  to  enter  upon  the  estate  and  dig  up  the  surface : 
nor  has  the  Crown  any  such  power  in  respect  of  the  royal  prerogative 
of  mines.  But  when  mines  reserved  to  the  Crown  are  once  opened,  the 
Crown  can  restrain  the  owner  of  the  soil  from  working  them,  and  may 
grant  license  to  others  to  work  them.  Ryddall  v.  Weston  (1739),  Atkins 
(cas.  temp.  Hasdwickb),  vol.  2,  p.  19. 

The  presumption  that  the  owner  of  the  land  is  entitled  to  the  mines  is 
much  insisted  on  in  the  case  of  Rogers  v.  Brenton  (1847),  10  Q.  B.  26, 
17  L.  J.  Q.  B.  34, 12  Jur.  263,  where  a  custom  was  alleged  in  regard 


420  MINES  AND  MINERALS. 


Kof.  1,  2.  —  Caae  of  XixiM;  HnmphriM  ▼.  Brogden.  —  Vofeet. 

to  waste  lands  in  Cornwall  for  persons  called  '^bounders''  to  mark 
out  a  claim  and  search  for  and  get  tin  within  the  boundaries.  It  was 
held  that  the  custom  could  not  be  good  in  law  except  under  condition 
of  working  the  tin;  and  the  bounder,  in  the  case  before  the  Court,  hav- 
ing ceased  to  work  for  many  years,  could  not  succeed  in  his  claim  to 
the  rights  of  working  within  the  boundaries. 

'^The  principle  of  law  to  be  deduced  from  all  the  authorities,  and 
directly  established  by  the  case  of  Harris  v.  Ryding  (1839),  5  M.  &  W. 
60,  and  Humphries  v.  Brogden^  is  that  a  grant  or  reservation  of  mines 
in  general  terms  confers  a  right  to  work  the  mines,  subject  to  the  obli- 
gation of  leaving  a  reasonable  support  to  the  surface  as  it  exists  at  the 
time  of  such  grant  or  reservation/'  Per  Kelly,  C.  B.,  in  Richards  y. 
Jenkins  (1868),  18  L.  T.  437,  442.  Or  as  put  by  Channell,  B.,  in 
the  same  case  (at  p.  444),  those  two  cases  ^'  clearly  show  that,  in  the 
absence  of  any  express  stipulation  enlarging  or  diminishing  the  right, 
what  the  surface  owner  is  entitled  to  is  reasonable  support  for  the  sur^ 
face  in  the  state  in  which  it  existed  at  the  time  when  the  titles  to  the 
mines  and  to  the  surface  came  into  different  hands." 

Further  authorities  relating  to  the  right  of  support  to  the  surface  of 
land,  whether  in  its  natural  state  or  otherwise,  will  be  found  under 
Dalton  V.  Angus,  No.  8  of  <<  Easement,"  and  notes,  10  B.  C.  98  et  seq. 

On  the  admission  of  British  Columbia  into  the  Dominion  of  Canada, 
it  was  agreed  by  the  Articles  of  Union  that  the  Dominion  should  con- 
struct a  railway  through  the  Province,  and  that  the  Province  should 
convey  to  the  Dominion  (to  be  distributed  amongst  settlers  along  the 
line  of  railway)  certain  public  lands  of  the  Province;  and  lands  were 
granted  accordingly  by  an  Act  of  the  Provincial  Legislature.  It  was 
held  that  this  grant  did  not  transfer  the  rights  of  the  Crown  assigned  to 
the  Province  for  State  purposes  by  the  British  North  America  Act, 
1878;  nor  did  the  grant  convey  any  right  to  gold,  or  gold-mining  rights. 
Attorney- General  of  British  Columbia  v.  Attorney- General  of  Canada 
(P.  C.  1888),  14  App.  Cas.  295,  58  L.  J.  P.  C.  88, 60  L.  T.  712.  Those 
rights  continue,  under  sect.  109  of  the  British  North  America  Act,  1867, 
to  be  vested  in  Her  Majesty  as  the  Sovereign  Head  of  the  Province. 
Maritime  Bank  of  Canada  v.  New  Brunswick  Meeewer-General,  1892, 
A.  C.  437,  61  L.  J.  P.  C.  76,  67  L.  T.  126. 

AMERICAN  NOTES. 

Humphries  v.  Brogden  is  cited  in  Washburn  on  Easements  as  a  leading  case, 
and  is  followed  by  a  careful  review  of  the  English  cases  on  subjacent  support. 
That  case  is  also  approved  in  Jones  v.  Wagner ,  66  Fenn.  State,  429 ;  5  Am.  Rep. 
385  (a.  d.  1871),  to  the  effect  that  in  case  of  separate  ownership  of  the  surface 
and  the  mines,  the  miner  is  bound  to  leave  sufficient  supports  to  uphold  the 


B.  a  VOL.  xvn.]       sect,  l  —  minekal  property.  421 


Kof.  1,  3. — OsM  of  IBiim;  Hnmphxiei  ▼.  BrogdesL — Kotet. 

surf aoe  and  its  buildings.  The  Court  said :  **  We  have  no  case  strictly  of 
authority  in  our  books,  nor  do  I  find  any  in  the  books  of  our  sister  States. 
In  most  of  them  but  little  subterranean  mining  exists,  and  in  others  the  ques- 
tion has  not  presented  itself  for  adjudication.  In  none  of  the  cases  cited  by 
the  learned  counsel  from  our  State  reports  is  the  question  decided  or  inten- 
tionally touched ;  we  therefore  must  rule  the  point  for  ourselves  for  the  first 
time.  The  English  cases  referred  to,  and  others  which  might  be  referred  to, 
emanate  from  great  ability,  and  from  a  country  in  which  mining,  its  conse- 
quences and  effects,  are  more  practical,  and  the  experience  greater,  than  in  any 
other  country  of  which  we  possess  any  knowledge.  We  think  it  safe,  there- 
fore, to  follow  its  lead  in  this  matter,  and  hold  that  in  the  case  in  hand  the 
recovery  was  right,  predicted  as  it  was  of  the  want  of  sufficient  supports  in 
the  mine  to  prevent  the  plaintiff's  ground,  house,  and  orchard  from  injury,  by 
subsiding  into  the  cavity  made  in  the  earth  by  the  removal  of  the  coal.  The 
upper  and  underground  estates  being  several,  they  are  governed  by  the  same 
maxim  which  limits  the  use  of  property  otherwise  situated,  sic  utere  ttio  ut 
aUenum  non  Icedas.  We  have  no  doubt  but  all  the  evils  deprecated  by  the 
adoption  of  this  rule  will  disappear  under  regulations  adapted  to  each  case  of 
severance  of  the  soil  from  the  minerals.  Contract  may  devote  the  whole 
minerals  to  the  enjoyment  of  the  purchaser,  without  supports,  if  the  parties 
choose.  If  not,  the  loss  by  maintaining  pillars  or  putting  in  props  wiU  neces- 
sarily come  out  of  the  value  of  the  mineral  estate.  K  at  any  time  the  public 
necessities  may  demand  the  pillars  to  be  removed  for  fuel,  we  may  safely 
assume  that  the  same  necessity  will  provide  some  nde  which  will  be  satisfac- 
tory in  such  a  crisis." 

The  Humphries  case  is  also  cited  in  Homer  v.  Watson,  79  Penn.  State,  242 ; 
21  Am.  Rep.  55 ;  and  Jones  v.  Wagner  followed,  with  the  addition  that  the 
liability  of  the  miner  was  the  same  although  he  proceeded  according  to  cus- 
tom. Citing  Hilton  v.  Earl  of  Granville,  5  Q.  B.  701.  Two  Judges  dissented. 
See  also  Coleman  v.  Chadwick,  80  Penn.  State,  81 ;  21  Am.  Rep.  93,  to  the  same 
effect.  The  same  Judges  dissented.  The  same  doctrine  is  found  in  WUms  v. 
Jess,  94  Illinois,  464 ;  34  Am.  Rep.  242 ;  Livingston  v.  Moingona  Coed  Co., 
49  Iowa,  369;  31  Am.  Rep.  150;  Carlin  v.  Chappel,  101  Penn.  State,  348;  47 
Am.  Rep.  722;  WUliams  v.  Gibson,  84  Alabama,  228;  5  Am.  St.  Rep.  368; 
Yandes  v.  Wright,  66  Indiana,  319;  32  Am.  Rep.  109;  Marvin  v.  Brewster  Iron 
3f.  Co.,  55  New  York ;  14  Am.  Rep.  322 ;  most  of  them  citing  and  approv- 
ing the  Humphries  case. 

A  grant  of  land  presumptively  passes  the  minerals  below  the  surface. 
Adam  v.  Briggs  Iron  Co.,  7  Cushing  (Mass.),  361 ;  Hartwell  v.  Camman,  10 
New  Jersey  Equity,  128 ;  Stratton  v.  Lyons,  53  Vermont,  641 ;  Bogg  v.  Merced 
M.  Co.,  3  Wallace  (U.  S.),  304. 

In  this  country  mines  of  gold  and  silver  pass  to  the  grantee  of  the  land 
unless  expressly  reserved.  Moore  v.  Smaw,  17  California,  199 ;  79  Am.  Dec. 
123.  Citing  the  first  principal  case  with  the  observation :  "  No  reasons  in 
support  of  the  prerogative  are  stated  in  the  resolution  of  the  Judges,  and 
those  advanced  in  argument  by  the  Queen's  counsel  would  be  without  force  at 
the  present  time."  "  The  State  takes  no  property  by  reason  of  *  the  excellency 


422  MINES  AND  MINERALS. 


Ho.  8.  — BeU  ▼.  Wilfoo,  86  L.  J.  Ch.  887,  888.  — Bnle. 


of  the  thing,'  and  taxation  furnishes  all  the  requisite  means  for  the  expenses 
of  government."  Per  Field,  J.  But  the  English  rule  prevails  in  Oregon. 
Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Oregon,  104. 


No.  3.  — BELL  V.  WILSON. 
(1866.) 

No.  4,  — HEXT  V.  GILL. 
(1872.) 

RULE. 

A  RESERVATION  of  mines  and  minerals,  with  power  to 
work  the  minerals  contained  in  a  grant  of  land,  is  primcL 
fade  intended  to  reserve  all  mineral  substances  which  can 
be  got  for  the  purpose  of  profit,  but  the  power  to  work 
them  only  by  means  which  do  not  involve  destruction  of 
or  entry  upon  the  surface. 

Bell  V.  Wikon. 

35  L.  J.  Ch.  337-541  (s.  o.  L.  R.  1  Ch.  303 ;  12  Jur.  (N.  S.)  263 ;  U  L.  T.  115; 
U  W.  R.  493). 

[887]      Mines  and  Minerals.  —Freestone.  —  Beservation.  —  Conveyance. 

Upon  a  sale,  in  1801,  of  lands  in  Northumherland,  the  conveyance,  after 
reciting  that  the  royalty  was  reserved  to  the  vendor,  reserved  to  him  "  all  mines 
and  seams  of  coal,  and  other  mines,  metals,  or  minerals,  as  well  opened  as  not 
opened,  within  and  under  the  closes  or  parcels  of  ground  hereby  granted  and 
released,  with  full  liberty  to  search  for,  dig,  bore,  sink,  win,  work,  lead,  and  carry 
away  the  same : "  Held,  by  the  Lords  Justices,  in  opposition  to  yice-Chancellor 
KiNDERSLET,  that  freestonc  was  included  in  this  reservation ;  but,  in  accordance 
with  his  Honour,  that,  under  the  reservation,  the  stone  could  not  be  worked  ex- 
cept by  means  of  underground  workings. 

By  Lord  Justice  Turneb  :  A  mine  is  a  way  or  passage  under  ground ;  a 
quarry  is  a  stone-pit,  a  place  upon  or  above,  and  not  under  the  ground. 

The  question  was,  whether  the  right  of  working  freestone  by  an 
open  quarry  was  within  a  reservation  in  an  indenture  of  the  10th 
of  February,  1801,  by  which  two  closes  of  land  at  Long  Benton, 
in   Northumberland,    were   conveyed  in  fee  to  the  late 
[*  338]   *  Henry  Ulrick  Eeay,  through  whom  the  plaintiff,  a  mar- 
ried woman,  claimed. 


B.  C.  VOL.  XVIL]  sect.  I.  —  MINERAL  PROPERTY.  423 


Vo.  8.  — Ben  ▼.  Wilson,  35  L.  J.  Ch.  888. 


The  indenture  of  February,  1801,  recited  that  the  vendor,  Eich- 
ard  Wilson,  reserved  to  himself  the  royalty  of  these  lands ;  and  in 
the  operative  part  there  was  an  exception,  in  favour  of  him  and 
of  all  persons  seised  or  entitled  either  at  law  or  in  equity  of  or  to 
the  same  lands,  of  *"  all  mines  and  seams  of  coal,  and  other  mines^ 
metals,  or  minerals,  as  well  opened  as  not  opened,  within  and 
under  the  said  closes  or  parcels  of  ground  mentioned  and  intended 
to  be  hereby  granted  and  released,  with  full  liberty  to  search  for, 
dig,  bore,  sink,  win,  work,  take,  lead,  and  carry  away  the  same, 
and  to  dig,  bore,  sink,  win,  work,  and  make  pit  and  pits,  trench 
and  trenches,  groove  and  grooves,  and  to  drive  and  make  drifts, 
rains,  levels,  staples,  water-gates,  and  water-courses  of  any  kind 
in,  over,  under,  through,  or  along  all  or  any  part  of  the  said  closes 
or  parcels  of  ground,  with  sufi&cient  ground  room  and  heap  room, 
and  to  erect  fire-engines  and  other  buildings,  and  to  exercise,  do, 
and  perform  every  other  liberty,  matter,  and  thing  necessary  for 
digging,  sinking,  winning,  and  working  the  said  collieries,  mines, 
and  minerals,  and  free  way-leave  and  passage  to  and  from  the  same 
collieries,  mines,  and  minerals,  in,  through,  and  over  the  same 
closes  or  parcels  of  ground,  or  any  of  them,  or  any  part  thereof 
respectively,  with  agents,  workmen,  horses,  wagons,  carts,  and 
carriages,  with  liberty  to  make  all  such  wagon-ways  and  other 
ways  as  shall  be  necessary  and  convenient  for  that  purpose,  and 
according  to  the  usage  or  custom  of  the  country,  paying  a  reason- 
able satisfaction  for  all  damage  or  spoil  of  ground  to  be  occasioned 
thereby.  * 

The  closes  of  land  conveyed  by  this  deed  had  become  vested  in 
the  plaintiff  Elizabeth  Ann  Bell,  a  married  woman,  for  her  life  for 
her  separate  use,  with  limitations  in  remainder  to  several  other 
persons  for  their  lives,  with  remainders  to  their  issue,  and  an 
ultimate  remainder,  which  had  become  vested  in  the  plaintiff,  R 
A.  Bell.  The  interest  excepted  and  reserved  by  the  deed  had  be- 
come vested  in  the  defendant,  Frederick  William  Wilson,  who, 
by  an  indenture  bearing  date  the  2nd  of  October,  1858,  demised 
the  quarries  and  beds  of  stones  under  some  of  the  closes,  which 
were  alleged  to  have  been  part  of  the  excepted  property,  for  a 
term  of  ninety -nine  years,  to  his  son,  the  defendant,  George  Besley 
Wilson,  who,  by  an  agreement  dated  the  4th  of  December,  1862, 
demised  the  same  quarries  and  beds  of  stone  to  the  defendant, 
John  Simpson. 


424  MINES  AND  MINEBAL& 


Ko.  3.  — .BeU  ▼.  Wilfoo,  86  L.  J.  Gh.  S88,  889. 


The  closes  of  land  comprised  in  the  deed  of  the  10th  of  February, 
1801,  were  on  the  surface  of  the  clay  and  shale  formation,  over- 
lying a  bed  of  freestone,  beneath  which  there  was  a  seam  of  coaU 
under  which  there  was  another  bed  of  freestone.  The  first- 
mentioned  bed  of  freestone  was  at  a  depth  varying  from  about  6 
feet  to  about  40  feet  below  the  surface  of  the  closes ;  and  it  varied 
in  depth  or  thickness  from  about  36  feet  to  about  70  feet. 

In  or  about  1855  the  defendant,  F.  W.  Wilson,  began  to  work 
the  stone  under  the  surface  of  the  closes  by  open  quarrying, 
that  is,  by  first  removing  the  soil  overlying  the  stone,  and  then 
digging  out  the  stone ;  but  these  workings,  not  being  then  found 
profitable,  were  soon  afterwards  abandoned.  In  December,  1862, 
however,  the  defendant,  J.  Simpson,  began  again  to  work  the  stone 
under  some  of  the  closes,  by  the  same  process  of  removing  the 
soil  to  a  depth  varying  from  6  feet  to  20  feet  below  the  surface, 
for  the  purpose  of  quarrying  the  bed  of  freestone ;  and  thereupon, 
after  some  previous  correspondence  in  which  objections  were  made 
to  this  course  of  proceeding,  the  bill  in  this  cause  was  filed,  oa 
the  24th  of  June,  1863,  by  E.  A.  Bell,  by  her  next  friend,  N. 
Ellison,  and  by  Mr.  Ellison  as  her  trustee,  against  F.  W.  Wilson, 
G.  B.  Wilson,  J.  Simpson  and  the  plaintifif's  husband,  Matthew 
Bell,  praying  an  account  of  the  stone  got  from  the  land,  an  assess- 
ment of  the  damages  sustained  by  Mrs.  Bell,  and  an  injunction. 

The  defendant,  F.  W.  Wilson,  by  his  answer  to  the  bill,  in- 
sisted that  the  bed  of  freestone  was  within  the  exception  con- 
tained in  the  deed  of  the  10th  of  February,  1801 ;  and  he  set  up  a 
case  of  knowledge  and  acquiescence  on  the  part  of  the  plaintiff,  K 
A.  Bell. 

Certain  admissions  were  agreed  to  between  the  parties,  to 
the  effect,  among  other  things,  that  the  estate  at  Long 
[•  339]  *  Benton  was  of  the  sandstone  formation,  that  part  of  the 
bed  of  sandstone  or  freestone  in  the  pleadings  mentioned 
was  about  6  feet  below  the  surface  of  the  said  estate,  and  that  a 
portion  of  the  said  bed  was  of  sufficient  thickness  to  be  capable 
of  being  worked  by  means  of  underground  workings,  yet  that 
there  had  been  up  to  that  time  no  instance  of  any  undei^round 
workings  of  freestone  in  the  county  of  Northumberland.  That, 
by  means  of  the  workings  of  stone  in  the  pleadings  in  the  cause 
mentioned,  a  space  containing  446  square  yards,  measured  on  the 
surface  of  the  field  called  the  Lodge  Field,  in  the  pleadings  men- 


E.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  425 

Ko.  3.  ~BoU  ▼.  Wilson,  M  L.  J.  Ch.  889. 

tioned,  had  been  excavated  to  the  depth  of  19  feet  by  the  removal 
of  soil  and  stone,  and  that  there  was  at  the  bottom  of  this  excava- 
tion a  platform  of  stone  on  which  water  rested ;  and  that  a  space 
of  2291  square  yards,  measured  on  the  surface  of  the  said  field 
called  the  Lodge  Field,  had  been  rendered  unproductive  for  the 
time  being,  by  the  deposit  upon  it  of  the  soil  and  rubbish,  taken 
out  of  the  said  excavation. 

The  Vice-Chancellor  (Kindersley)  granted  the  relief  prayed  by 
the  bill.  By  his  decree  of  the  9th  of  May,  1865,  he  declared  that 
the  plaintiff,  Ellison,  as  trustee  for  the  plaintiff,  E.  A.  Bell,  was, 
according  to  the  true  construction  of  the  indenture  of  the  10th  of 
February,  1801,  entitled  to  the  bed  of  freestone  in  question,  upon 
the  same  trusts  as  those  on  which  the  surface  of  the  land  was  held 
under  which  the  bed  lay.  An  account  was  ordered  of  the  stone 
got  by  the  defendant,  Simpson,  and  of  the  proceeds  of  the  sale 
thereof,  and  an  inquiry  as  to  the  damages  sustained  by  Mrs.  Bell  by 
the  working  of  the  stone,  the  amount  found  due  by  the  chief  clerk 
to  be  paid  by  Simpson  to  the  plaintiff  Ellison,  as  Mrs.  Bell's 
trustee;  and  a  perpetual  injunction  was  awarded  against  the 
defendants,  F.  W.  Wilson,  G.  B.  Wilson,  and  Simpson,  who  were 
also  ordered  to  pay  the  costs  of  the  suit 

F.  W.  Wilson  and  G.  B.  Wilson  appealed.  The  defendant, 
Simpson,  who  had  been  served  and  had  appeared  on  the  hearing 
before  the  Vice-Chancellor,  was  not  served.  It  was  arranged, 
during  the  hearing  of  the  appeal,  that  the  case  should  continue, 
and  that,  if  it  appeared  to  be  necessary,  Simpson  should  be  served 
and  be  heard. 

Mr.  Baily  and  Mr.  Burdon  for  the  plaintiff.  —  Freestone  was 
not,  in  fact,  within  the  intention  of  the  reservation.  But  the 
question  was  mainly  one  of  construction.  A  mine  and  a  quarry 
were  different  things ;  the  distinction  between  them  resting  on  the 
difference,  not  so  much  in  the  thing  extracted,  as  in  the  way  of 
working.  The  explanation  in  Jacob's  Law  Dictionary,  ed.  Tom- 
lins,  in  which  mines  were  stated  to  be  "  quarries  or  places  where- 
cut  anything  is  dug, "  was  clearly  wrong,  and  opposed  to  the  decis- 
ions. DarvUl  v.  Roper,  3  Drew.  294 ;  s.  c.  Tiom.  Davvell  v.  Roper, 
24  L.  J.  Ch.  779 ;  Brown  v.  Chadimck,  7  Ir.  Com.  Law,  101 ;  Tfie 
Countess  of  Zistowel  v.  Gibbings,  9  Ir.  Com.  Law,  223 ;  Harris  v. 
Ryding,  5  M.  &  W.  60,  8  L.  J.  (K  S.)  Ex.  181;  Rex  v.  Duns^ 
ford,  2  Ad.  &  E.  568,  4  L  J.  (K  S.)  M.  C.  59. 


426  MINES  AND  MINERALS. 

Ko.  3.  — BeU  ▼.  Wilson,  85  L.  J.  Ch.  839,  840. 

Mr.  Giffard  and  Mr.  T.  Stevens  for  the  defendants,  the  appel- 
lants. —  The  estate  was  sold  subject  to  a  royalty ;  and  everything 
lying  below  the  surface  was  included  under  a  royalty.  The  word 
"  mine  "  by  no  means  applied  exclusively  to  underground  works, 
for  the  works  of  the  Carclaze  tin-mine  in  Cornwall  were  open 
ones;  and  the  Eailway  Clauses  Consolidation  Act  (8  &  9  Vict,  c. 
20),  s.  77,  used  the  word  "  mine  "  in  reference  to- slate.  The  only 
real  difiference  between  a  mine  and  a  quarry  was,  that  the  latter 
was  a  mine  worked  in  a  special  manner,  that  is,  by  open  workings. 
The  definition  in  Jolmson's  Dictionary,  which  explained  a  quarry 
as  equivalent,  to  a  stone  mine,  that  in  Jacob's  Law  Dictionary, 
already  referred  to,  and  Bainbridge  on  Mines,  tit  '*  Quarry,"  495, 
all  agreed  with  the  defendants*  contention,  that  the  right  to  work 
stone  might  pass  under  a  reservation  of  mines.  The  probable 
etymology  of  the  word,  which  was  the  Celtic  maen,  a  stone,  was 
also  in  their  favour.  In  Brown  v.  Chadmck  the  quarries  were 
open  at  the  time,  which  explained  the  decision.  In  DarvUl  v. 
BopeVy  on  which  case  the  Vice-Chancellor,  indeed,  admitted  that 
he  did  not  rest  his  judgment  in  the  present  instance,  the 
[•340]  quarries  in  dispute  were  actually  *  being  worked  at  the 
time  of  the  partition.  The  present  case  was  governed  by 
The  Earl  of  Bosse  v.  Wainman,  14  M.  &  W.  859,  15  L.  J.  Ex. 
67 ;  affirmed,  2  Ex.  800 ;  Micklethwaite  v.  Winter,  6  Ex.  644,  20 
L  J.  Ex.  313 ;  The  Earl  of  Cardigan  v.  Armitage,  2  B.  &  C.  197 
(26  B.  R  313). 

The  plaintiffs,  moreover,  were  precluded  from  any  relief  by 
their  long  acquiescence  since  the  stone  began  first  to  be  quarried. 
Even  if  the  plaintiffs  were  not  absolutely  barred  by  such  acqui- 
escence, at  all  events  the  decree  was  wrong  in  giving  them  costs. 

Lord  Justice  Turner  (March  8),  after  stating  the  facts,  pro- 
ceeded as  follows :  The  questions  upon  this  appeal  are,  whether, 
under  the  exception  contained  in  the  deed,  the  defendants  are 
entitled  to  the  upper  bed  of  freestone,  and  whether,  if  they  are  so 
entitled,  they  are  entitled  to  get  the  stone  by  the  mode  of  open 
quarrying  which  they  have  adopted.  Upon  the  first  of  these 
questions  I  regret  to  say  that  I  find  myself  unable  to  agree  in  the 
conclusion  at  which  the  Vice-Chancellor  has  arrived.  The  words 
of  this  exception  are  most  general  and  comprehensive ;  and  if  it  can 
be  held  that  the  freestone  is  not  included  in  these  words,  it  can 
only  be,  as  it  seems  to  me,  upon  one  or  other  of  these  grounds,  — 


K.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  427 

Ko.  8.  — BoU  ▼.  WUflon,  85  L.  J.  Ch.  840. 

either  that  the  freestone  is  not  a  mineral,  or  that,  being  a  min- 
eral, the  nature  or  context  of  the  deed  shows  that  it  was  not  in- 
tended to  be  included.  But  the  cases  are,  I  think,  decisive  upon 
this  point,  that  freestone  is  a  mineral;  and  I  can  find  nothing  in 
the  nature  or  context  of  this  deed  to  show  that  it  was  not  intended 
to  be  included  in  the  exception.  The  Vice-Chancellor  appears 
to  have  considered  that  the  intention  was  to  reserve  only  that 
which  was  ordinarily  gotten  by  mines  in  the  county  of  Northum- 
berland at  the  time  of  the  execution  of  the  deed.  But  the  deed 
does  not  refer  to  what  is  ordinarily  gotten,  and  I  think  this  con- 
struction goes  too  far  in  cutting  down  the  effect  of  the  general  words, 
which,  as  I  take  it,  in  the  absence  of  manifest  intention  or  context 
to  the  contrary,  ought  to  have  their  full  effect  This  construction 
would  probably  operate  to  prevent  the  general  words  extending  to 
many  other  subjects  than  freestone.  If,  indeed,  effect  could  not 
be  given  to  the  exception  without  destroying  the  previous  grant, 
this  might  be  considered  to  show  an  intention  that  the  exception 
should  not  include  the  freestone ;  but  I  do  not  think  this  would 
be  the  case.  It  is  argued  for  the  plaintiff,  that  it  appears  from 
the  deed  that  the  parties  must  have  known  the  position  of  the 
different  strata  in  these  closes  of  land.  But  this  argument  cuts 
both  ways;  for  it  may  well  be  that  the  general  words  were  in- 
serted in  consequence  of  that  knowledge.  Upon  the  first  ques- 
tion, therefore,  I  respectfully  differ  from  the  Vice-Chancellor. 

But  upon  the  other  question,  I  entirely  agree  in  his  opinion.  I 
am  satisfied  that  it  was  not  intended  by  this  deed  that  the  free- 
stone should  be  worked  by  the  means  which  the  defendants  have 
adopted,  or  otherwise  than  by  underground  mining.  The  language 
of  the  exception  points,  I  think,  to  this  conclusion ;  it  is  an  ex- 
ception of  mines  within  and  under  the  lands,  whether  opened 
or  unopened,  words  which  are  ordinarily  used  with  reference  to 
undeiground  workings;  and  although,  perhaps,  it  cannot  be  said 
that  there  are  not  words  in  the  clause  which  might  be  construed 
to  extend  to  and  authorise  workings  upon  the  surface  of  the  closes, 
it  cannot,  I  think,  be  denied  that  the  clause,  taken  as  a  whole, 
points  much  more  strongly  to  undergroimd  workings. 

Some  question  was  made  in  the  course  of  the  argument  as  to  the 
meaning  of  the  words  in  the  deed,  "  mines,  metals,  or  minerals,  * 
and  I  am  much  disposed  to  agree  with  the  construction  which 
Mr.  Burden  put  upon  these  words,  that  they  mean  mines  whether 


428  MIKES  AND  MINERALS. 

Ko.  8.  — BoU  ▼.  Wilfoo,  M  L.  J.  Ch.  840,  841. 

of  metals  or  minerals.  Then,  what  is  a  mine  ?  Upon  reference  to 
the  lexicographical  part  of  the  Encyclopaedia  Metropolitana,  I  find 
it  there  said  that  the  word  "  mine "  is  derived  from  the  Latin 
word  of  the  lower  ages  **  minare, "  signifying  ducere,  "  to  lead,"  and 
the  interpretation  of  the  word  is  "  to  draw  or  lead, '  that  is  to  say, 
a  way  or  passage  underground,  a  subterraneous  duct,  cross,  or  pas- 
sage, whether  in  search  of  metals  or  to  destroy  fortifications, 
[•  341]  &c.  The  cases  of  Rex  v.  The  Inhabitants  '^of  Sedgley,  2  B. 
&  Ad.  65,  9  L  J.  M.  C.  61  (36  R  R  475),  and^ea;  v.  Brettel, 
3  B.  &  Ad.  424, 1  L  J.  (K  S. )  M.  C.  46,  seem  to  me  to  support  this 
definition,  to  this  extent  at  least,  that  mines  are  underground  work- 
ings ;  and  that  this  is  so  is,  I  think,  much  confirmed  by  the  defini- 
tion of  the  word  "  quarries, "  which  is  to  be  f oimd  in  the  same 
dictionary.  The  word  "  quarry  "  is  there  stated  to  be  derived 
from  the  French  word  **  quarriere, "  and  the  derivation  is  followed 
by  this  description :  *  In  the  Latin  of  the  lower  ages  quadratarius 
was  a  stone-cutter,  qui  marmora  quadrat^  and  hence  '  quarridre, ' 
the  place  where  he  quadrates  or  cuts  the  stone  in  squares,  the 
place  where  the  stone  is  cut  in  squares,  generally  a  stone-pit," 
clearly  therefore  referring  to  a  place  upon  or  above,  and  not  under, 
the  ground. 

My  opinion,  therefore,  on  this  second  point,  entirely  agrees 
with  that  of  the  Vice-Chancellor.  The  case,  then,  is  in  this 
singular  position,  that  the  defendants  were  entitled  to  this  stone, 
working  it  by  underground  mining,  but  were  not  entitled  to  work 
it  from  the  surface.  The  consequence,  as  I  think,  must  be  that 
the  plaintiffs  are  entitled  to  the  account  directed  by  the  decree  of 
what  has  been  got  by  the  improper  working.  There  is  not,  I  sup- 
pose, any  dispute  between  the  plaintiff  and  her  husband,  the 
defendant,  Matthew  Bell,  and  it  is  not  therefore  material  to  con- 
sider whether  the  plaintiff,  R  A.  Bell,  is  entitled  to  the  money 
which  may  be  found  due  upon  the  account  by  virtue  of  her 
separate  estate  for  life,  or  of  the  remainder  in  fee  which  is  vested 
in  her.  The  only  question  as  to  these  moneys  can  be,  whether 
the  plaintiff,  R  A.  Bell,  is  entitled  to  them  as  against  the  per- 
sons having  estates  in  remainder  prior  to  the  ultimate  limitation 
In  fee  vested  in  her ;  and  I  think,  upon  the  authority  of  the  case 
of  Bewick  v.  Whitfield,  3  R  Wms.  267,  that  she  is  so  entitled.  It 
was  objected,  on  the  part  of  the  defendants,  the  Wilsons,  that  they 
had   been  improperly  saddled  with  the  costs  of  the  suit;  but  I 


B.  C.  VOL.  XVn.]  SECT.  L  —  MINERAL  PEOPEETY.  429 

Ko.  4.  — Hext  ▼.  Gill,  L.  E.  7  ClL  699,  700. 

think  that  no  decree  could  have  been  had  against  the  defendant, 
Simpson,  in  their  absence,  and  that  they  were,  therefore,  proper 
parties  to  the  suit ;  and,  as  they  have  contested  the  rights  of  the 
plaintiff,  I  think  they  have  been  properly  charged  with  the  costs. 
In  the  result,  the  declaration  contained  in  the  decree  must  be 
altered  to  meet  the  view  which  I  have  above  expressed ;  but  in 
other  respects  the  decree  will  stand. 

Lord  Justice  Knight  Bruce.  —  My  view  of  the  case  is  the  same 
as  that  of  my  learned  Brother. 

It  was  arranged  that  the  declaration  should  be  struck  out,  or  be 
amended  to  the  effect  that  the  defendants  were  not  entitled  to 
work  the  bed  of  freestone  mentioned  in  the  bill  except  by  means  of 
underground  workings. 

Hext  V.  OilL 

L.  R.  7  Ch.  699-719  (s.  c.  41  L.  J.  Ch,  761 ;  27  L.  T.  291 ;  20  W.  R.  957). 

Mines  and  Minerals.  ^  BeserwiHon,  —  China  Clay. — Bights  of  Mine  [699] 

Otoner, 

In  1799  the  Duke  of  Cornwall,  as  lord  of  a  manor,  granted  the  freehold  in 
a  copyhold  tenement  to  the  copyholder^  reserving  ^^  all  mines  and  minerals 
within  and  nnder  the  premises,  with  full  and  free  liberty  of  ingress,  egress,  and 
regress,  to  dig  and  search  for,  and  to  take,  use,  and  work  the  said  excepted 
mines  and  minerals,"  the  deed  not  containing  any  provision  for  compensation. 
Under  the  tenement  was  a  bed  of  china  day,  the  existence  of  which  did  not 
appear  to  have  been  contemplated  by  either  party  at  the  time,  no  china  day 
having  ever  been  gotten  out  of  the  lands  of  the  duchy,  though  the  existence  of 
tin  was  well  known.  It  was  admitted  in  the  cause  that  china  clay  could  not  be 
gotten  without  totally  destroying  the  surface,  and  the  process  of  getting  tin  by 
''  streaming,"  which  was  an  ancient,  and  at  the  time  of  the  grant  the  most  usual, 
mode  of  getting  tin,  was  almost  equally  destructive.  A  bill  by  the  owner  of 
the  surface  to  restndn  the  owner  of  the  minerals  from  getting  china  clay  having 
been  dismissed  by  Wickens,  V.  C,  on  the  ground  that  the  reservation  induded 
china  clay  with  the  power  to  get  it :  — 

Hddf  on  appeal,  that  the  china  clay  was  included  in  the  reservations,  but 
that  the  surface-owner  was  entitled  to  an  injunction  to  restrain  the 
owner  of  •  the  minerals  from  getting  it  in  such  a  way  as  to  destroy  or  [•  700] 
serioudy  injure  the  surface. 

When  a  landowner  sells  the  snrfttce,  reserving  to  himself  the  minerals  with 
power  to  get  them,  he  must,  if  he  intends  to  have  power  to  get  them  in  a  way 
which  will  destroy  the  surface,  frame  the  reservation  in  such  a  way  as  to  show 
clearly  that  he  is  intended  to  have  that  power. 

This  was  an  appeal  by  the  plaintiffs  from  a  decree  of  Vice- 
Ghancellor  Wickens  dismissing  the  bill 


430  MINES  AND   MINEBALS. 

Ho.  4.  — Hezt  V.  GiU,  L.  B.  7  Ch.  700,  701. 

By  deed  or  certificate  of  contract  dated  the  4th  of  January,  1799, 
under  the  hand  of  the  Surveyor-general  for  the  Duchy  of  Corn- 
wall, and  executed  in  accordance  with  the  Acts  for  the  redemption 
of  land  tax,  the  then  Duke  of  Cornwall,  as  lord  of  the  manor  of 
Treverbyn  Courtenay,  conveyed  to  Charles  Eashleigh  the  fee 
simple  and  inheritance  of  "  all  that  customary  or  copyhold  tene- 
ment, called  Greys,  with  the  appurtenances,  parcel  of  the  before- 
mentioned  manor  of  Treverbyn  Courtenay,  consisting  of  a  house, 
garden,  farm-yard,  mowhay  and  oflSces,  containing  by  admeasure- 
ment 3r.  33p.  ,  with  divers  closes  and  parcels  of  ground,  contain- 
ing also  by  admeasurement  103a.  1b.  39p.,  or  thereabouts  (that  is 
to  say)  "  [here  followed  parcels,  concluding  with]  "  and  a  parcel  of 
land  running  with  Garka  Moor,  containing  27a.  2r., 
[*  701]*  which  said  *  tenement,  called  Greys,  is  now  held  for  the 
life  of  John  Hext,  gentleman,  under  the  yearly  rent  of 
15s.  3d, ,  by  copy  of  court  roll  bearing  date  the  20th  of  Septem- 
ber, 1771,  together  with  all  timber  trees,  and  other  trees,  waters, 
watercourses,  roads,  ways,  easements,  commodities,  profits,  privi- 
leges, emoluments,  and  advantages  whatsoever  to  the  said  several 
and  respective  premises  belonging  or  appertaining."  The  deed 
contained  the  following  exception  and  reservation:  — 

**  Excepting  nevertheless  and  always  reserving  unto  his  said 
Eoyal  Highness  the  Prince  of  Wales,  his  heirs  and  successors, 
Dukes  of  Cornwall,  all  mines  and  minerals  within  and  under 
the  said  several  and  respective  premises,  or  any  part  thereof,  to- 
gether with  full  and  free  liberty  of  ingress,  egress,  and  regress  to 
and  for  his  said  Eoyal  Highness,  his  heirs  and  successors,  and  his 
and  their  oflScers,  agents,  and  workmen,  and  to  and  for  the  lessee 
or  lessees  of  his  said  Eoyal  Highness,  his  heirs  and  successors, 
and  the  agents  and  workmen  of  such  lessee  and  lessees,  into  and 
out  of  the  said  several  premises  and  every  part  thereof,  with  or 
without  horses,  carts,  and  carriages,  to  dig  and  search  for,  and  to 
take,  use,  and  work  the  said  excepted  mines  and  minerals. " 

In  the  next  month  Eashleigh  conveyed  the  above  premises  to 
Samuel  Hext  (who  was  entitled  to  the  copyhold  interest  in  the 
property),  his  heirs  and  assigns.  The  plaintiffs  were  the  succes- 
sors in  title  of  Samuel  Hext. 

The  plaintiffs  alleged  that  a  certain  part  of  Garka  Moor,  which 
was  not  enclosed  but  was  distinguished  by  certain  landmarks,  was 
the  27a.  2b.    mentioned  in  the  conveyance.     This   was  distin- 


B-  C.  VOL.  XVIL]  sect.  I.  —  MINERAL  PROPERTY.  431 

Ho.  4.  -~Hezt  V.  Gill,  L.  B.  7  Ch.  701,  702. 

guished  in  the  bill  as  "  the  unenclosed  part  of  the  Greys  estate. " 
Under  this  land,  as  well  as  under  the  enclosures  of  the  Greys 
estate,  was  a  bed  of  china  clay.  The  defendants.  Gill  and  Ivimey, 
who  had  become  entitled  to  the  mines  and  minerals  comprised  in 
the  above  reservation,  had  granted,  in  1868,  a  lease  to  the  defend- 
ants, Derry  and  Scott,  of  the  china  clay  under  certain  lands,  in- 
cluding the  twenty-seven  acres  and  the  greater  part  of  the  Greys 
estate.  Under  this  lease  Derry  and  Scott  got  a  quantity  of  china 
clay  from  under  that  part  of  the  moor  which  the  plaintiffs  claimed 
as  the  unenclosed  part  of  the  Greys  estate ;  and  on  one  occasion, 
more  than  a  year  before  the  filing  of  the  bill,  they  entered 
on  some  of  the  enclosed  lands  *with  the  intention  of  [•702] 
getting  china  clay  there,  which  intention,  however,  they 
almost  immediately  abandoned,  and  did  not  again  enter.  The 
getting  of  china  clay  is  carried  on  by  open  workings,  which  cause 
an  entire  destruction  of  the  surface,  and  it  was  admitted  on  both 
sides  that  the  clay  could  not  be  got  otherwise. 

The  plaintififs  filed  their  bill  alleging  that  the  lessees  threatened 
to  enter,  if  they  had  not  already  entered,  upon  the  Greys  estate ; 
as  well  the  enclosed  as  the  unenclosed  parts  thereof ;  and  to  com- 
mence working  for  china  clay  thereon.  The  plaintiffs  charged 
that  the  china  clay  was  not  a  mineral  included  in  the  reservation 
of  mines  and  minerals,  and  that  no  one  entitled  to  the  mines  and 
minerals  under  the  reservation  had  any  authority  to  get  them  by 
open  workings.  The  bill  prayed  for  an  injunction  to  restrain  the 
defend«uits  from  getting  china  clay  out  of  the  Greys  estate,  and  for 
an  account  of  the  china  clay  already  gotten* 

The  defendants,  Gill  and  Ivimey,  by  their  answer,  stated  that 
in  or  about  the  reign  of  Henry  VI.  the  ancient  manor  of  Treverbyn, 
having  devolved  upon  two  co-heiresses,  was  divided  into  two 
manors,  Treverbyn  Courtenay,  and  Treverbyn  Trevanion,  and  that 
certain  ancient  tenements  of  the  manor  of  Treverbyn  were  allotted 
in  severalty  to  the  two  new  manors ;  but  that  the  wastes,  of  which 
Garka  Moor  was  part,  were  not  so  allotted,  but  were  held  in  com- 
mon. They  went  on  to  say  that  the  Greys  estate  was  allotted  to 
Treverbyn  Courtenay ;  that  it  consisted  entirely  of  old  enclosures, 
and  that  there  was  no  unenclosed  ground  belonging  to  it;  and  that 
the  manor  of  Treverbyn  Courtenay  was  in  1799  the  property  of  the 
Duchy  of  Cornwall,  the  manor  of  Treverbyn  Trevanion  belonging 
to  another  owner.     In  1856  Gill  and  Ivimey  purchased  the  manor 


432  MINES  AND  MINEBALS. 


Ho.  4.  — H«zt  V.  Gill,  L.  B.  7  Ch.  702,  708. 


of  Treverbyn  Courtenay,  with  all  its  rights  and  appurtenances; 
and  in  1859  the  manor  of  Treverbyn  Trevanion.  They  thus  be- 
came owners  of  the  soil  of  the  entirety  of  Garka  Moor.  They 
denied  the  title  of  the  plaintiffs  to  the  unenclosed  land  alleged  to 
form  part  of  the  Greys  estate,  and  denied  that  any  china  clay  had 
been  gotten  out  of  any  land  to  which  the  plaintiffs  were  entitled. 
They  went  on  to  say  that  the  lessees  had  not  "  any  present  inten- 
tion "  of  entering  upon  the  Greys  estate  for  the  purpose  of  getting 
china  clay  or  any  other  mineral;  and  that  it  was  the  desire  of 
them  (Gill  and  Ivimey)  that  the  Greys  estate  "  should  not 
[*  703]  at  present  be  *  interfered  with ;  "  and  that  Derry  and  Scott, 
in  compliance  with  that  desire,  had  abstained  from  inter- 
fering with  it.  But  they  (Gill  and  Ivimey)  insisted  that  by  reason 
of  the  reservation  they  were  entitled  to  the  china  clay  within  the 
limits  of  the  Greys  estate,  and  to  work  for  and  get  it  by  open  pits 
and  workings  from  the  surface ;  such  being,  in  fact,  the  only  prac- 
ticable mode  of  getting  it  They  alleged  that  open  workings  from 
the  surface,  by  streaming  for  tin,  had  taken  place  from  time  imme- 
morial on  the  Greys  estate. 

Derry  and  Scott,  by  their  answer,  said  that  they  had  entered  on 
part  of  the  Greys  estate  with  the  intention  of  getting  china  clay, 
which  intention,  at  the  request  of  Gill  and  Ivimey,  they  had 
almost  immediately  abandoned;  and  that  having  been  requested 
by  Gill  and  Ivimey  to  desist  from  working  there,  they  had  no 
present  intention  of  entering  upon  the  estate. 

The  defendants  also  stated,  by  their  answer,  that  they  had  not 
done  any  damage  to  the  Greys  estate  except  once,  by  accident, 
when  a  landslip  took  place  into  their  workings  close  to  the  boun- 
dary of  Greys. 

The  process  of  getting  china  clay  was  thus  described  in  the 
plaintiff's  evidence ;  the  correctness  of  which,  in  this  respect,  was 
not  disputed :  — 

"  Granite  consists  of  quartz,  felspar,  and  mica ;  and  china  clay 
consists  of  decomposed  granite  in  which  felspar  exists  in  consider- 
able proportions.  To  make  china  clay  fit  for  the  market,  the 
felspar,  which  alone  is  merchantable,  has  to  be  separated  from  the 
other  component  parts  of  the  said  decomposed  granite.  The  work- 
ing for  china  clay  is  commenced  almost  in  the  same  manner  as 
quarrying  for  building-stone,  namely,  by  the  removal  of  the  soil 
covering  the  clay,  which  lies  in  beds  of  more  or  less  thickness. 


R.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  438 

Ho.  4.  — Hezt  V.  Om,  L.  B.  7  Cli.  703,  704. 

The  working  is  then  carried  on  by  turning  a  stream  of  water  over 
the  head  of  the  clay,  when  so  arrived  at,  and  washing  the  same  for- 
ward into  channels  and  reservoirs ;  in  which  reservoirs  the  pure 
clay  is  held  in  solution,  and  separated  from  the  impurities,  by  the 
same  impurities,  which  are  heavier,  being  precipitated  to  the 
bottom  of  the  reservoir,  while  the  pure  clay  is  allowed  to  run  for- 
ward, over  the  top  of  the  reservoir,  into  a  pit  where  it  settles 
down,  and  is  dried  and  made  solid,  either  by  exposure  to  the  sun 
or  by  a  drying  kiln,  after  which  it  is  fit  for  sale  in  the 
market  The  injury  done  *  in  clay  working  to  the  surface  [*  704] 
of  the  land  is  the  total,  or  the  almost  total,  destruction  of 
the  surface  where  the  excavations  are  made ;  for  the  clay  is  exca- 
vated to  a  depth  which  renders  the  land  useless  for  agricultural 
purposes,  either  by  the  loss  of  all  soil  suitable  for  such  purposes, 
or  by  reason  of  the  cost  of  refilling  and  levelling  the  pits  excavated 
being  greater  than  any  return  to  be  obtained  from  the  imperfect 
restoration  of  the  land  for  agricultural  purposes.  * 

"  Streaming  "  for  tin  appeared  from  the  evidence  in  the  cause  to 
be  the  usual  ancient  way  of  getting  tin  in  Cornwall.  It  was  a 
process  for  obtaining  grain  tin  by  means  of  washing ;  and  it  was 
necessarily  carried  on  entirely  by  means  of  open  workings.  There 
was  some  conflict  of  evidence  as  to  whether  the  surface  was  ir- 
reparably destroyed  by  it ;  the  plaintiff's  evidence  going  to  show 
that  {he  land  was  often  filled  in  and  levelled,  and  the  soil  replaced 
when  the  working  was  over;  and  the  defendant's  evidence  making 
the  destruction  of  the  surface  appear  to  be  as  complete  as  in  the 
case  of  working  for  china  clay.  In  modem  times  tin  had  been 
obtained  by  mining  to  a  much  greater  extent  than  before.  There 
was  a  conflict  of  evidence  as  to  whether  tin  works  had  been  car- 
ried on  within  the  Greys  enclosures.  There  was  some  evidence 
to  show  that  before  the  grant  in  1799,  china  clay  had  been  gotten 
in  an  adjoining  parish,  but  it  had  never  been  gotten  in  the  parish 
in  which  Greys  was  situate,  nor  was  any  gotten  out  of  any  of  the 
lands  of  the  duchy  of  Cornwall  till  some  years  after  that  time. 

With  respect  to  the  twenty-seven  acres,  it  appeared  in  evidence 
that  the  tenants  of  Greys  had  for  a  considerable  number  of  years 
treated  themselves  as  entitled  to  the  exclusive  use  of  it  to  this 
extent,  that  they  alone  cut  the  furze  and  took  turf  from  it,  and 
occasionally  for  the  purpose  of  sale.  It  appeared  also  that  the 
owners  of  other  tenements  took  turf  exclusively  from  certain  other 
VOL.  XVII.— 28 


434 


MINES  AND  MINERALS. 


Ho.  4.->Hext  V.  Gill,  L.  B.  7  Ch.  704,  705. 


portions  of  Garka  Moor;  the  twenty-seven  acres  not  being  fenced 
off,  although  distinguished  by  landmarks.  There  was  a  mass  of 
conflicting  evidence,  upon  the  result  of  which  the  Court  came  to 
the  conclusion  that  the  twenty-seven  acres  did  not  in  1799  form 
part  of  the  copyhold  tenement  called  Greys.  There  was,  how- 
ever, nothing  else  answering  to  the  27a.  2p.  mentioned  in  the 
conveyance,    nor    could    the    103    acres    be    made    up   without 

including  it. 
[*  705]       *  Vice-Chancellor  Wickens  considered  that  the  terms  of 

the  reservation  justified  the  defendants  in  getting  the  china 
clay  in  the  way  in  which  they  were  getting  it,  and  he  dismissed 
the  bilL^     The  plaintiffs  appealed. 


1  1872.    March  13. 

Sir  John  Wickens,  V.  C.  :  — 

This  case  seems  to  me  to  turn  upon  the 
effect  of  the  reservation  contained  in  the 
deed  of  the  4th  of  January,  1799. 

The  ca.«tes  which  have  been  cited  upon 
the  construction  of  this  reservation  are 
very  numerous  and  very  embarrassing; 
the  truth  is,  tliat  the  words  here  used 
became  cufitomary  legal  words  in  deeds 
when  natural  science  was  far  less  ad- 
vanced than  it  is  now,  and  that  the  prob- 
lem, which  has  been  fonnd  difficult  by 
many  Judges,  has  liecn  to  give  them  their 
proper  meaning  without  doing  great  and 
obvious  injnRtice. 

The  original  meaning,  probably,  of 
the  term  "  mincH  and  minerals "  was 
mines  and  subsances  got  by  mining; 
but  etymology  i»  a  very  unsafe  guide  to 
meaning,  and  I  must  hold  that  the  word 
"  minerals  "  long  ago  acquired  a  meaning 
of  its  own.  independently  nf  any  question 
as  to  the  manner  in  which  the  minerals 
themselves  are  gotten.  I'nder  the  cir- 
cumstances, however,  there  is  no  wonder 
that  some  inclination  may  be  thought  to 
have  arisen  «>n  tlie  part  of  Judges  to  give 
more  weig'it  than  ought  to  have  been 
attributed  to  some  small  circumstances  of 
context,  and  to  cut  down  the  proper  and 
ordinary  meaning  of  the  words  "mines 
and  minerals." 

According  to  the  evidence,  kaolin  or 
china  clay  is  a  metalliferous  mineral,  per- 
fectly distill  cm  ishable  from  and  much 
more  valnahle  than  ordinary  agricultural 
earth,  and   wiiich  produces  metal  in    a 


larger  proportion  to  its  bulk  as  compared 
with  ordinary  ores,  but  which  it  is  not 
commercially  profitable  to  work  in  Eng- 
land for  the  purpose  of  extracting  the 
metal  from  it.  Therefore  kaolin  is  ex- 
cepted from  the  grant  under  which  the 
plaintiff  claims,  unless  there  can  bo 
shown  some  custom  of  the  country,  some- 
thing in  the  grant  itself,  or  something  in 
the  reason  of  the  thing,  sufficient  to  in- 
duce the  Court  to  consider  the  terms  as 
used  in  a  restricted  and  secondary  sense. 
It  was  not  suggested  that  I  could  recog- 
nise any  custom  of  the  country  under 
which  the  term  "mines  and  minerals" 
could  have  any  definite  meaning  which 
would  exclude  kaolin,  and  I  have  failed 
to  discover  anything  in  the  special  ex- 
pressions of  this  deed  which  would  do 
so ;  the  only  words  w^hich  appear  to  bear 
upon  the  point  are  "within  and  under." 
These  words  were  commented  upon  by 
the  Master  of  the  Rolls  in  the  case  of 
Midland  Railway  Company  v.  Chechky 
(L.  K.  4  Eq.  19),  where  he  considers 
the  distinction  between  "within"  and 
"  under,"  and  that  "  within "  denotes 
something  which  is  not  under,  and  this 
distinction  seems  to  me  rather  to  point  in 
the  defendant's  favour. 

No  doubt  the  case  of  Bell  v.  WiUon  (L. 
R.  1  Ch.  303)  seems  to  import  that  under 
the  reservation  of  minerals  contained  in 
the  deed  which  was  in  question  in  that 
case  the  only  reservation  was  of  what 
could  be  got  by  miuing  proper,  and  Lord 
Justice  Turner  unquestionably  considered 
that  it  was  necessary,  in  order  to  come  to 


B.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PROPERTY. 


435 


Ho.  4.  — Hext  V.  Gill,  L.  B.  7  Gh.  706,  707. 


♦Mr.  Manisty,  Q.  C,  Mr.  Eddis,  Q.  C,  and  Mr.  Boger,   [*706] 
for  the  appellants :  — 

A  reservation  of  mines  and  minerals  has  commonly  been  under- 
stood as  applying  only  to  substances  got  by  mining  as  distin- 
guished from  quarrying  or  open  working.  Darvill  v.  Roper,  3 
Drew.  294,  Brovm  v.  Chadwick,  7  Ir.  Com.  Law,  101,  and  Listowel 
V.  Gibbings,  9  Ir.  Com.  Law,  223,  all  support  this  view.  The 
meaning  of  the  word  "  mine  *  is  shown  by  Rex  v.  Brettell,  3  B.  & 
Ad.  424,  Rex  v.  Dunsfard,  2  A.  &  £.  568,  and  Rex  v.  Inhabitants 
ofSedgley,  2  B.  &  Ad.  65,  9  L.  J.  M.  C.  61  (36  R.  R  475).  But 
even  if  the  words  "  mines  and  minerals  *  cannot  be  so  far  restricted, 
such  a  construction  must  be  put  on  the  reservation  as  will  not 
allow  it  to  be  destructive  of  the  grant;  and  it  cannot  be  held  to 
allow  a  mode  of  working  which  will  cause  a  complete  de- 
struction of  the  *  surface  where  there  is  no  provision  for  [*  707] 
compensation.  Bell  v.  Wilson,  L.  R  1  Ch.  303,  is  decisive 
on  this  point,  and  must  be  overruled  if  the  decision  under  appeal  is 
to  stand.  This  is  supported  by  the  analogy  of  the  cases  in  which 
it  has  been  held  that,  in  the  absence  of  very  clear  words,  working 


the  conclnsion  at  which  he  arriTed,  to 
find  something  in  the  context  in  the  deed 
which  cut  down  the  words  from  their 
original  extensive  meaning,  and  he  found 
the  words  "opened  and  unopened."  It 
would,  I  confess,  have  seemed  to  me 
doubtful  whether  these  words  were  quite 
sufficient  to  authorise  the  construction 
put  upon  that  deed  ;  but,  as  I  said  before, 
however  that  may  be,  that  was  the  ground 
upon  which  the  Lord  Justice  proceeded. 

Here  I  can  find  nothing  whatever  in 
the  deed  to  affect  the  ordinary  construc- 
tion of  the  words  "  mines  and  minerals," 
and  therefore  if  kaolin  is  to  be  excluded 
from  the  reservation,  it  must  be  by  the 
reason  of  the  thing,  or,  in  other  words, 
from  a  supposed  inconsistency  between 
there  being  any  such  grant  as  the  deed 
contains  and  any  such  reservation  as  it 
purports  to  contain. 

Of  course  it  would  not  advance  the 
plaintiffs'  case  to  say  that  either  party 
knew  or  suspected  the  existence  of  such 
a  mineral  as  kaolin  in  1799,  nor  can  the 
Plaintiffs  carry  their  case  to  the  height  of 
asserting  that  from  the  reason  of  the 
thing  no  metal  or  mineral  is  to  be  gotten 


under  the  reservation  except  by  mining 
as  distinguished  from  digging ;  for,  not  to 
mention  other  things,  both  parties  must 
have  had  tin  in  their  minds,  which  ap- 
pears to  be  often  got  by  such  diggings, 
or,  at  least,  by  operations  destructive  of 
the  surface,  and  liaving  nothing  in  com- 
mon with  mining. 

The  real  difficulty  of  the  case  rests  in 
this,  that  the  reservation,  if  construed  ac- 
cording to  the  full  and  strict  meaning  of 
the  words,  may  be  absolutely  destructive  of 
the  entire  grant,  and  that  without  com- 
pensation. No  doubt  it  is  difficult  to 
bring  one's  mind  to  accept  such  a  view  of 
the  reservation,  still  the  terms  must  pre- 
vail, unless  they  can  he  limited  on  one  or 
other  of  the  grounds  mentioned  above; 
they  cannot  be  intended  to  mean  nothing, 
and  if  they  do  not  mean  that  which  they 
import,  the  question  arises.  What  is  the 
true  meaning.'  To  that  question  no  an- 
swer has  been  suggested  which  commends 
itself  to  my  mind.  I  therefore  must  hold 
that  the  reservation  of  the  mines  and 
minerals  is  a  reservation  of  this  china 
clay,  and  must  dismiss  the  biU  with  costs. 


436  MINES  AND  MINERALS. 


No.  4.~H«zt  V.  Gill,  L.  B.  7  Ch.  707,  706. 


which  causes  a  subsidence  of  the  surface  is  not  authorized,  though 
there  be  a  provision  as  to  compensation  for  damage  done  to  the 
surface.  Harris  v.  Byding,  5  M.  &  W.  60 ;  Humphries  v.  Brogden, 
12  Q.  B.  739  (p.  407,  ante) ;  Smart  v.  Morton,  5  K  &  B.  30.  In 
Duke  of  Bucclev^h  v.  Wakefield,  L.  E.  4  H.  L.  377,  under  very 
special  words,  it  was  held  that  the  mine  owner  might  destroy  the 
surface ;  but  that  conclusion  evidently  would  not  have  been  come 
to  if,  as  here,  there  had  been  no  provision  for  compensation.  The 
cases  of  Hilton  v.  Ilarl  GrranvUle,  5  Q.  B.  701,  Roberts  v.  Haines, 
6  K  &  B.  643,  and  Blackett  v.  Bradley,  1  B.  &  S.  940,  show  how 
strongly  the  Courts  lean  against  allowing  a  complete  destruction 
of  the  surface.  Bullen  v.  Denning,  5  B.  &  C.  842  (29  R  B.  431), 
Midgley  v.  Richardson,  14  M.  &  W.  595,  and  Hedley  v.  Fenwick^ 
3  H.  &  C.  349,  show  the  inclination  to  put  a  restricted  construc- 
tion on  such  reservations.  The  question  as  to  the  twenty-seven 
acres  is  proper  to  be  tried  at  law. 

[Both  parties  here  concurred  in  requesting  that  the  Court  would 
decide  on  the  question  of  title.  ] 

Then  we  say,  on  the  evidence,  that  the  twenty-seven  acres  were 
always  part  of  the  Greys,  but  if  not,  the  grant  of  1799  must  be 
held  to  pass  them,  as  the  quantity  of  land  thereby  expressed  to  be 
conveyed  cannot  be  made  up  without  them. 

The  Solicitor-General  (Sir  G.  Jessel),  Mr.  Karslake,  Q.  C, 
and  Mr.   Phear,  for  the  respondents:  — 

Upon  the  evidence,  we  say  that  the  twenty-seven  acres  never 
formed  part  of  Greys,  but  were  part  of  Garka  Moor,  and  the  right 
of  the  lord  of  the  manor  to  get  every  kind  of  mineral  substances 
from  under  the  moor  by  open  workings  is  not  questioned  by  the 
bill.  The  conveyance  of  1799  only  purports  to  convey  what  con- 
stituted the  copyhold  tenement  called  Greys ;  the  acreage 
[*  708]  *  is  mere  matter  of  description,  and  its  being  too  large 
does  not  show  an  intention  to  grant  more  than  the  copy- 
hold, and  if  it  did,  the  lord  of  Treverbyn  Courtenay  had  only  an 
undivided  moiety  of  Garka  Moor ;  so  that  the  plaintiffs  could  not 
have  got  the  entirety  of  the  twenty-seven  acres.  Our  working  on 
the  twenty-seven  acres,  therefore,  cannot  be  restrained,  and  there 
has  been  nothing  but  an  accidental  encroachment  on  the  old  en- 
closures, with  an  express  denial  of  an  intention  to  work  there. 
The  allegation,  therefore,  that  we  threaten  and  intend  to  interfere 
with  any  ground  on  which  we  have  no  right  to  work  is  not  made 


R.  C.  VOL.  XVIL]  sect.  L  —  MINERAL  PROPERTY.  437 

Ho.  4.  —  Hezt  V.  GiU,  L.  B.  7  Gh.  708,  709. 

out,  and  the  Court  will  not  interfere  to  restrain  trespass  unless  a 
case  of  irreparable  damage  is  shown.  The  plaintiffs'  case  there- 
fore fails.  Gibson  v.  Smith,  2  Atk.  182 ;  Mogg  v.  Mogg,  2  Dick. 
670;  MUchdl  v.  Dors,  6  Ves.  147;  Smith  v.  Gollyer,  8  Ves.  89; 
Courthope  v.  Mapplesden,  10  Ves.  289 ;  Kinder  v.  Jones,  17  Ves. 
110 ;  Harl  Coivper  v.  Baker,  17  Ves.  128 ;  Thomas  v.  Oakley,  18 
Ves.  184  (11  R.  R  181);  Davenport  v.  Davenport,  7  Hare,  217; 
Jfaigh  v.  Jaggar,  2  Coll.  231;  London  and  North-Western  Rail' 
way  Company  v.  Lancashire  and  Yorkshire  Railway  Company, 
L.  R.  4  Eq.  174  But  we  say  that,  even  under  the  old  enclosures, 
we  are  entitled  to  get  the  china  clay  by  the  usual  mode  of  work- 
ing. The  reservation  includes  the  china  clay,  which  certainly 
comes  within  the  term  **  minerals.  "  Micklethwait  v.  Winter,  6  Ex. 
644;  Midland  Railway  Company  v.  Checkley,  L.  R.  4  Eq.  19; 
Harl  Rosse  v.  Wainman,  14  M.  &  W.  859.  The  words  **  mines 
and  minerals  "  cannot  be  cut  down  unless  there  is  some  explana- 
tory context  to  restrict  them.  The  reservation  of  minerals  in- 
cludes a  right  to  get  them,  though  to  the  destruction  of  the  surface. 
Rowbotham  v.  Wilson,  8  H.  L.  C.  348;  Duke  of  Buccleuch  v. 
Wakefield,  L.  R  4  H.  L.  377.  We  therefore  must  be  entitled  to 
get  the  china  clay  in  the  only  way  in  which  it  can  be  gotten ;  and, 
moreover,  express  power  to  dig  for  it  is  given.  The  cases  in 
which  it  was  held  that  the  surface  must  not  be  let  down  were  cases 
where  the  Court  had  not  before  it  the  instrument  under 
*  which  the  mine  owner  derived  title,  and  do  not  apply  [*  709] 
where  the  instrument  gives  a  right  to  work.  Still  less 
can  they  apply  where  the  mineral  is  one  which  can  only  be  got  by 
destroying  the  surface.  They  only  show  that  workings  must  not 
be  carried  on  in  such  a  way  as  to  produce  damage  which  may  be 
avoided.  It  is  clear  that  this .  reservation  includes  tin  and  the 
right  to  get  it  But  at  the  time  of  the  grant  the  usual  mode  of 
getting  tin  was  streaming,  which  is  as  destructive  to  the  surface  as 
the  getting  of  china  clay. 

[They  also  referred  to  Earl  Beauchamp  v.  Winn,  L.  R  4  Ch.  562.  ] 

Mr.  Manisty,  in  reply,  referred  to  Dugdale  v.  Robertson,  3  K.  & 
J.  695,  and  Roads  v.  Overseers  of  Trumpington,  L.  R  6  Q.  B.  56. 

July  22.     Sir  G.  Hellish,  L.  J.  :  — 

This  is  a  suit  instituted  by  the  owners  of  a  small  estate  called 
Greys,  in  the  county  of  Cornwall,  against  the  lords  of  the  manors 
of  Treverbyn  Courtenay  and  Treverbyn  Trevanion  and  their  ten- 


438  MINES   AND  MINERALS. 


No.  4.  —  Hezt  V.  GiU,  L.  B.  7  Gh.  709,  710. 


ants,  to  restrain  them  from  getting  china  clay  under  the  property 
called  Greys,  which  is  alleged  in  the  bill  to  consist  of  old  enclos- 
ures and  of  about  twenty-seven  acres  of  unenclosed  land.  The 
title  of  the  plaintiffs  to  the  enclosed  part  is  not  disputed,  but  as 
respects  the  unenclosed  part  the  defendants  deny  the  title  and  also 
the  possession  of  the  plaintiffs,  and  say  that  what  is  in  the  bill 
styled  the  unenclosed  part  of  Greys  is  in  fact  part  of  Garka  Moor, 
and  that  they,  as  lords  of  the  two  manors,  are  entitled  to  the  soil 
of  that  moor.  This  raises  a  question  of  title  which  ought  properly 
to  be  tried  at  law  by  an  action  of  ejectment;  but  both  parties  have 
requested  us  to  decide  the  question  instead  of  sending  them  to 
law,  and  therefore  before  I  go  into  the  remaining  questions  I  will 
deal  with  that  question  of  title. 

[His  Lordship  then  stated  the  cases  made  by  the  plaintiffs 
and  defendants  as  to  the  unenclosed  twenty-seven  acres,  and 
the   evidence   as  to  the  extent   of   the   copyhold   tenement,  and 

continued :  —  ] 
[*  710]  *  We  have  to  decide  as  a  question  of  fact  what  is  the 
result  of  that  evidence.  In  the  first  place,  nobody  can 
doubt  that  before  the  manors  were  separated  Garka  Moor  was  a 
waste  common,  the  freehold  of  which  was  in  the  lord  of  the  manor 
of  Trevanion,  the  copyholders  having  only  certain  rights  over  it 
That  being  so,  whenever  the  manor  was  divided  into  two  it  is 
difl&cult  to  say  that  what  was  freehold  and  not  copyhold  could  by 
any  legal  means  become  annexed  to  the  copyhold  estate  called 
Greys,  so  as  to  become  part  of  it,  and  whether  it  could  be  so 
annexed  except  by  Act  of  Parliament  is  doubtful.  It  appears  to 
us,  judging  as  a  jury  would  upon  the  question  of  fact,  that  the 
proper  way  to  reconcile  the  whole  of  the  evidence  is  to  presume 
that  at  some  time,  possibly  at  the  very  time  when  the  manors  were 
separated,  the  tenants  who  had  a  right  of  common  over  the  Garka 
Moor  common  being  but  few,  an  arrangement  was  come  to  between 
them,  possibly  with  the  consent  of  the  lord,  that  each  of  them 
should  enjoy  a  separate  common  right  to  take  the  pasture  and  turf 
off  a  particular  portion  of  the  common  instead  of  their  equally 
enjoying  it  together. 

If  we  suppose  that  to  have  taken  place,  Mr.  Spry,  who  made  for 
the  duchy  the  old  map  and  terrier  which  have  been  produced, 
finding  that  state  of  things,  might  naturally  come  to  the  erroneous 
conclusion  that  a  certain  portion  of  the  waste   was   part  of  the 


B.  C.  VOL.  XVII.]         SECT.  L  —  MINERAL  PROPERTY.  439 

Ko.  4.  —  Hext  ▼.  Gill,  L.  B.  7  Ch.  710,  711. 

copyhold  called  Greys,  and  lay  it  down  in  his  map  as  being  so. 
All  the  evidence  will  thus  be  accounted  for.  The  result  is  that 
this  piece  of  moor  was  part  of  the  moor  which  the  two  lords  held 
as  tenants  in  common  in  moieties,  and  was  not  part  of  the  copy- 
hold estate  called  Greys.  Then  it  was  argued  on  behalf  of  the 
plaintiffs  that  because  the  parcels  of  the  deed  of  1799  include  a 
parcel  of  land  running  with  Garka  Moor  containing  twenty-seven 
acres,  and  these  twenty-seven  acres  cannot  be  found  in  the  enclosed 
part  of  Greys,  therefore  twenty-seven  acres  (although  how  we  are 
to  get  the  bounds  I  do  not  know)  are  to  be  taken  out  of  the  moor. 
That  I  think  is  not  the  true  construction  of  the  deed.  The  deed 
professes  to  convey  "  all  that  customary  or  copyhold  tenement 
called  Greys, "  and  the  rest  is  simply  a  description  of  what  is  con- 
tained in  Greys,  and  it  is  said  besides,  **  which  said  tenement 
called  Greys  is  now  held  for  the  life  of  John  Hext,  gentleman, 
under  the  yearly  rent  of  15s.  3d.  by  copy  of  Court  roll. " 
It  appears  to  me  that  nothing  *  but  what  was  part  of  the  [*  711] 
customary  or  copyhold  tenement  called  Greys  could  pass 
imder  that,  notwithstanding  there  might  be  any  misdescription  in 
the  parcels.  If  the  tenement  called  Greys  was  entitled  to  an 
exclusive  right  of  common  over  a  portion  of  the  moor  which  by 
mistake  had  been  treated  as  if  it  were  parcel  of  the  copyhold  tene- 
ment, the  consequence  would  be  that  the  exclusive  right  of 
common  would  pass,  but  the  property  in  the  soil  would  not  pass. 
Therefore,  upon  the  whole,  I  come  to  the  conclusion  that  the 
plaintiffs  have  not  made  out  their  title  to  what  they  call,  as  I 
think  erroneously,  the  unenclosed  part  of  Greys,  and  therefore 
cannot  have  any  relief  respecting  it,  the  bill  not  being  framed  for 
raising  the  question  whether  the  getting  china  clay  can  be  com- 
plained of  by  persons  only  entitled  to  rights  of  common  over  the 
land. 

Then  I  come  to  the  question  whether  the  plaintiffs  are  entitled 
to  relief  respecting  the  enclosed  part  of  Greys.  Mr.  Karslake 
raised  the  objection  that  the  defendants  have  not  threatened  to  get, 
and  have  not  —  except  by  mere  accident  —  got  any  china  clay  in 
Greys ;  and  therefore  that  this  Court  ought  not  to  grant  an  injunc- 
tion, or  enter  into  the  question  whether  they  are  entitled  to  get  it 
or  not 

The  facts  upon  this  part  of  the  case  are  these :  It  appears  that 
the  first  two  defendants,  as  lords  of  the  manor,  have  let  to  the  two 


440  MINES  AND   MINERALS. 


Ho.  4.  —  Hert  v.  GiU,  L.  E.  7  Ch.  711,  712. 


other  defendants  the  right  to  get  china  clay  in  the  waste  and  over 
a  large  portion  of  the  estate  called  Greys,  and  therefore  they  profess 
to  exercise  the  right  of  ownership  over  it,  and  they  have  professed 
to  give  them  the  power  to  get  china  clay  from  Greys  in  the 
ordinary  way  in  which  china  clay  is  got  in  that  neighbourhood. 
It  appears  that  the  lessees  have  entered  on  one  occasion  into  the 
estate  called  Greys  with  the  intention  of  getting  china  clay, 
though  they  did  not  get  any,  and  did  liot  remain  there.  The  bill 
being  filed  and  the  question  raised,  the  defendants  being  sought 
to  be  restrained  from  getting  china  clay,  they  say,  "  We  have  a 
title  to  get  china  clay  out  of  the  estate  called  Greys,  and  we  are 
entitled  to  get  it  in  the  way  in  which  it  is  ordinarily  got ;  but  we 
have  no  present  intention  of  getting  it. "  We  are  of  opinion  that 
after  this  it  is  idle  for  the  defendants  to  say  they  do  not  threaten 
to  get  the  china  clay  under  the  enclosed  part  of  Greys, 
[*  712]  and  to  contend  that  *  this  Court  is  precluded  from  decid- 
ing the  question  whether  they  are  entitled  to  get  it  in  the 
way  in  which  they  say  they  have  a  right  to  get  it. 

That  brings  us  to  the  real  question  on  the  merits,  whether  the 
defendants,  having  had  the  manor  of  Treverbyn  Courtenay  con- 
veyed to  them,  have  a  right  to  get  the  china  clay  under  the  reser- 
vation and  exception  in  the  deed  of  1799. 

The  first  question  to  be  determined  is  whether  the  china  clay  is 
within  the  exception  of  "  mines  and  minerals. "  Now  china  clay 
is  thus  described :  [His  Lordship  here  read  the  account  of  china 
clay,  and  the  mode  of  getting  it,  from  the  plaintiffs*  evidence,  as 
above.  ] 

Is  this  china  clay  reserved  under  the  exception  of  "  mines  and 
minerals  "  ?    There  was  a  great  deal  of  discussion  before  us  as  to 
the  meaning  of   the  word  "  mines, "  whether  it  is   confined  to 
underground  working,  or  may  possibly  extend  to  open  working, 
or  whether  it  does  not  apply  to  the  workings  at  all,  but  in  this 
sort  of  reservation  means  the  metal,  the  veins,  and  seams  them- 
selves, which  are  in  a  secondary  sense  called  "  mines.  *     I  think 
that  it  is  not  necessary  here  to  go  into  those  questions,  for  what- 
ever may  be  the  meaning  of  the  word  "  mines  "  when  used  alone, 
it  is  here  combined  with  the  more  general  word  "  minerals, '"  and 
the  authorities  seem  to  show  that  where  there  is  an  exception  o£ 
"  mines  and  minerals, "  the  putting  the  word  "  mines  *    before 
"  minerals  "  does  not  restrict  the  meaning  of  the  word  "  minerals. " 


\ 

K.  C.  VOL.  XVU.]  SECT.  I.  —  MINERAL  PROPERTY.  441 

Ho.  4.  —  Hezt  ▼.  GiU,  L.  B.  7  Cli.  718,  718. 

Many  authorities,  some  at  law  and  some  in  equity,  have  been 
brought  before  us  to  show  what  is  the  meaning  of  the  word 
•  minerals.  *  But  the  result  of  the  authorities,  without  going 
through  them,  appears  to  be  this :  that  a  reservation  of  "  minerals  " 
includes  every  substance  which  can  be  got  from  underneath  the 
surface  of  the  earth  for  the  purpose  of  profit,  unless  there  is  some- 
thing in  the  context  or  in  the  nature  of  the  transaction  to  induce 
the  Court  to  give  it  a  more  limited  meaning.  Ought  it  to  have  a 
more  limited  meaning  in  the  present  case  ?  The  circumstances, 
as  far  as  they  are  material  to  be  stated,  are  these :  The  seller  was 
the  lord  of  the  manor.  What  he  sold  was  the  freehold  of  a  copy- 
hold tenement  Now  the  lord  of  a  manor  is,  beyond  all  question, 
entitled  to  all  the  minerals,  in  the  most  general  sense  of 
the  word,  *  under  a  copyhold  tenement  There  is  noth-  [*  713] 
ing  to  be  got  out  of  the  soil  and  sold  for  a  profit  which 
the  copyhold  tenant,  in  the  absence  of  some  special  custom,  is 
entitled  to  get  without  the  permission  of  the  lord ;  the  property  of 
it  is  in  the  lord,  although  it  is  true  that,  in  the  absence  of  special 
custom,  the  lord  cannot  get  it  without  the  license  of  the  tenant 
The  position  of  the  parties,  therefore,  furnishes  no  reason  for 
restricting  the  meaning  of  the  word  "  minerals, "  and  there  being 
no  special  words  before  "  mines  and  minerals,  *  which  might  fur- 
nish an  argument  for  restricting  them  to  things  ejusdem  generis,  I 
am  of  opinion  that  the  surface,  and  all  profit  that  can  be  got  from 
cultivating  the  surface,  or  building  on  it,  or  using  the  surface,  is 
intended  to  be  conveyed,  but  that  the  right  to  everything  under 
the  surface,  and  to  all  profit  that  can  be  got  from  digging  any- 
thing out  from  under  it,  is  intended  to  be  reserved.  I  am  there- 
fore of  opinion  that  china  clay  is  included  in  the  reservation. 
The  only  argument  against  this  is  that  china  clay  cannot  be  got 
without  destroying  the  surface,  and  that  it  could  not  be  intended 
to  give  power  wholly  to  destroy  the  surface  without  compensation. 
The  case  of  Bell  v.  Wilson,  L.  R  1  Ch.  303,  appears,  however,  to 
be  a  direct  authority  that  the  mere  circumstance  that  a  mineral 
cannot  be  got  without  destroying  the  surface,  though  it  may  be  a 
very  strong  ground  for  holding  that  the  owner  of  the  mineral  is  not 
entitled  to  get  it,  is  not  a  ground  for  straining  the  meaning  of  the 
word  "  mineral. "  In  that  respect  the  Lords  Justices  differed  from 
Vice-Chancellor  Kindersley,  and  we  are  bound  by  their  decision. 
Then  we  come   to  the   important  question,  whether  there   is 


442  MINES  AND   MINERALS. 


No.  4.  —  Hext  ▼.  GiU,  L.  B.  7  Ch.  718,  714. 


power  to  get  this  china  clay  in  the  only  way  in  which,  according 
to  the  concurrent  testimony  of  all  the  witnesses,  it  can  be  got,  by 
a  process  which  utterly  destroys  the  surface  of  the  land.  A  great 
number  of  cases  were  cited  to  us  upon  that  point,  in  none  of  which 
was  the  language  exactly  similar  to  that  in  the  case  before  us,  and 
they  must  be  referred  to  merely  for  the  purpose  of  getting  a  prin- 
ciple from  them.  Now  the  cases  show  that  where  the  ownership 
of  minerals  is  separate  from  the  ownership  of  the  surface,  pHmdL 
facie  the  owner  of  the  surface  is  entitled  to  have  his  surface  sup- 
ported by  the  minerals.  That  is  not  confined,  as  con- 
[*  714]  tended  by  the  *  Solicitor-General,  to  the  case  where  the 
Court  has  not  before  it  the  instrument  under  which  the 
owner  of  the  minerals  derives  his  rights,  but  it  also  applies  to 
cases  where  the  Court  has  the  instrument  before  it,  for  the  purpose 
of  construing  the  instrument,  to  this  extent,  that  primd  facie  the 
right  to  support  exists,  and  the  burden  lies  on  the  owner  of  the 
minerals  to  show  that  the  instrument  gives  him  authority  to 
destroy  what  is  described  by  the  Judges  as  the  inherent  right  of  a 
person  who  owns  the  surface  apart  from  the  minerals.  The  ques- 
tion is,  whether  the  words  of  the  reservation  in  the  present  case 
mean  that  the  ownership  of  the  surface  is  altogether  to  be  subject 
to  the  ownership  of  the  minerals,  so  that  the  owner  of  the  minerals 
may  do  whatever  is  necessary  for  the  purpose  of  enabling  him  to 
get  them,  although  it  may  of  necessity  utterly  destroy  the  surface ; 
or  do  the  words,  according  to  their  true  construction,  only  give  a 
right,  in  the  nature  of  an  easement,  to  go  upon  the  surface  and  dig 
through  it  for  the  purpose  of  getting  at  the  minerals  underneath  ? 
In  my  opinion,  the  short  and  ambiguous  words  of  this  reservation, 
according  to  their  fair  construction,  only  give  a  right  to  create 
what  I  may  call  temporary  damage,  and  do  not  authorize  the 
owner  of  the  minerals  absolutely  to  destroy  or  to  cause  a  serious 
continuous  and  permanent  injury  to  the  surface. 

Now  if  we  refer  to  the  authorities  we  find  that  there  are  several 
cases  relating  to  the  right  of  the  owner  of  minerals  to  let  down 
the  surface  in  the  course  of  getting  the  minerals  by  pure  mining, 
—  cases  in  which  the  power  of  getting  the  minerals  has  been  given 
in  far  stronger  language  than  it  is  in  the  present  case,  where, 
nevertheless,  the  Courts  held  that  he  was  not  entitled  to  get  the 
whole  of  the  minerals  if  that  involved  the  destruction  of  the  sur- 
face, but  that  in  getting  them  he  must  have  regard  to  the  rights  of 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  443 

Ho.  4.  — Hezt  ▼.  Om,  L.  B.  7  Cli.  714,  716. 

the  owner  of  the  surface  to  support  by  the  minerals.  In  Harris  v. 
Ryding,  5  M.  &  W.  60,  the  power  was  this :  "  With  full  liberty 
of  ingress,  egress,  and  regress  to  come  into  and  upon  the  thereby 
appointed  and  granted  and  released  premises  to  dig,  &c. ,  the  said 
mines,  &c. ,  and  every  part  thereof,  and  to  sell  and  dispose  of,  take 
and  carry  away,  whatever  might  be  there  found  at  their  or  his 
respective  wills  and  pleasures ;  and  also  to  sink  shafts,  &c. ,  for 
the  raising  up,  working,  carrying  away,  and  disposing 
of  the  same  or  any  part  *  thereof,  making  a  fair  compen-  [*  715] 
sation  to  T.  P.  (the  grantee)  for  the  damage  to  be  done  to 
the  surface  of  the  said  premises  and  the  pasture  and  crops  grow- 
ing thereon. "  In  Roberts  v.  Haines,  6  R  &  B.  643,  the  owner  of 
the  minerals  was  expressly  authorized  "  to  search  for,  dig,  get, 
and  raise  any  coal  and  ironstone  lying  and  being  in  or  under  the 
commons  and  waste  lands,  and  to  erect  any  work  or  works  for  that 
purpose,  and  to  dig  and  take  earth  for  making  and  to  make  bricks 
for  any  such  work  or  works;  and  to  carry  away  and  dispose  of 
such  coal  and  ironstone  to  and  for  his  and  their  own  use. "  In 
Smart  v.  Morto7iy  5  K  &  B.  30,  the  words  were :  "  With  free  leave 
and  liberty  to  sink,  work,  and  win  the  same  in  any  part  of  the 
said  premises,  and  to  drive  drift  or  drifts,  make  Watergate  or 
watergates,  or  use  any  other  way  or  ways  for  the  better  and  more 
commodious  working  and  winning  the  same  in  the  said  hereby 
granted  or  intended  to  be  granted  premises,  or  any  part  thereof.  * 
In  Bell  V.  Wilson,  L.  E.  1  Ch.  303,  which  is  a  most  important 
authority,  since  it  related  not  merely  to  the  letting  down  of  the 
surface  by  working  underground,  but  to  the  working  from  above, 
the  words  of  the  reservation  are  such  that  the  case  appears  to  me 
almost  decisive  of  the  present.  I  believe  it  will  be  found  that 
every  single  word  contained  in  the  present  power  is  contained  in 
the  power  in  Bell  v.  Wilson,  along  with  many  other  words ;  yet 
under  that  reservation,  worded  in  a  way  more  favourable  to  the 
owner  of  the  minerals  than  that  with  which  we  have  to  deal,  the 
Lords  Justices  held  that  although  stone  was  reserved  as  a  mineral, 
yet  there  was  no  right  to  get  it  by  quarrying. 

There  are,  however,  two  cases  which  ought  to  be  referred  to,  in 
which  the  House  of  Lords  held  an  owner  of  minerals  entitled  to 
let  down  the  surface  or  absolutely  to  destroy  the  surface  for  the 
purpose  of  getting  the  minerals.  The  first  of  tliose  cases  is  the 
case  of  Rowbotham  v.   Wilson,  8  H.  L.  C.  348.     In  that  case  there 


444  MINES  AKD  MINERALS. 


Ho.  4.  — Hezt  ▼.  GiU,  L.  B.  7  Ch.  715,  716. 


was  a  covenant  which  the  House  of  Lords  construed  to  be  a  grant 
that  the  mines  should  be  held  and  enjoyed,  worked  and  gotten, 
**  without  any  molestation,  denial,  or  interruption  of  any  other 
person  or  persons  parties  to  these  presents,  and  those  claiming 

under  them  respectively,  who  for  the  time  being  are  or 
[*716]  may  be  ♦owner  or  owners  of  the  surface  of  the   lands 

under  which  such  mines  are  situate,  and  without  being 
subject  or  liable  to  any  action  or  actions  for  damage  on  account  of 
working  and  getting  the  said  mines  for  or  by  reason  that  the  sur- 
face of  the  lands  aforesaid  may  be  rendered  uneven  and  less  com- 
modious to  the  occupiers  thereof  by  sinking  in  hollows  or  being 
otherwise  defaced  and  injured  where  such  mines  shall  be  worked. " 
The  instrument,  therefore,  said  in  terms  that  the  surface  might  be 
let  down,  and  no  doubt  the  House  of  Lords  decided  contrary  to 
what  was  said  in  the  judgment  in  Hilton  v.  Earl  Granville,  5  Q. 
B.  701,  that  such  a  grant,  where  it  is  clearly  expressed,  is  not  void. 
Again,  in  the-case  of  the  Duke  of  BucdeiichY.  Wakefield,  L.  R  4  H. 
L.  377,  the  House  of  Lords  held  that  power  was  given  absolutely 
to  destroy  the  surface.     That  is  the  only  case  which  resembles 
the  present,  in  this,  that  it  related  to  a  peculiar  kind  of  min- 
eral which  could  not  be  got  at  all  without  destroying  the  surface. 
But  if  that  case  is  looked  into  it  will  be  found  to  differ  from  the 
present  in  three  most  material  respects.     In  the  first  place,   the 
iron  ore,  which  was  the  mineral  then  in  question,  had  been  got  in 
very  large  quantities  by  the  lord  of  the  manor  before  the  Act  of 
Parliament  for  enclosing  the  waste  was  passed.     It  was  a  most 
valuable  mineral,  so  that  it  was  impossible  to  suppose  it  not  to 
have  been  in  the  contemplation  of  the  parties  at  the  time  they 
obtained  their  Act,  and  it  was  proved  that  the  lord  of  the  manor 
had  constantly  let  similar  iron  mines  in  the  manor,  paying  com- 
pensation for  the  damage  which  was   done.     In  the  next  place, 
without  stopping  to  read  the  whole  of  the  reservation  in  that  case, 
it  will  be  found  that  it  contains  far  more  extensive  words  than 
the  reservation  in  the  present  case.     It  contained  powers  which, 
as  is  pointed  out  in  the  judgments,  clearly  enabled,   in  certain 
events,  the   surface  to  be  destroyed.       There   was   an   unlimited 
power  to  deposit  the  refuse  of  the  minerals  on  the  surface,  and 
there  was  unlimited  power  of  erecting  buildings  upon  the  surface, 
and  there  were  at  the  end  most  general  words  enabling  every  power 
to  be  exercised  which  was  necessary  to  get  the  minerals.     In  the 


R.  C.  VOL.  XVII.]  SECT.  L — MINERAL  PROPERTY.  445 

No.  4.  — H«zt  ▼.  Gill,  L.  S.  7  Gh.  716,  717. 

last  place,  there  was  a  clause  which  enabled  full  compensation  to 
be  given  for  any  damage  that  might  be  done.  Taking  the  whole 
of  these  circumstances  into  consideration,  the  House  of 
*  Lords,  reversing  the  decision  of  Vice-Chancellor  Malins,  [*  717] 
came  to  the  conclusion  that,  according  to  the  true  mean- 
ing of  the  Act,  the  lord  of  the  manor  was  to  be  entitled,  if  he 
found  it  necessary  for  the  purpose  of  getting  what  was  known  to 
all  parties  to  be  a  most  valuable  mineral,  to  destroy  the  surface  on 
making  compensation;  or,  in  substance,  that,  for  the  purpose  of 
getting  the  minerals,  he  should  have  power  to  buy  the  surface  back, 
paying  the  full  value  for  it  I  think  that  no  one  can  read  the 
judgment  without  coming  to  the  conclusion  that  if  the  provision 
as  to  compensation  had  not  been  there  the  House  of  Lords,  not- 
withstanding the  strength  of  the  other  words,  would  in  all  proba- 
bility have  come  to  a  different  conclusion.  In  the  present  case 
there  is  no  reason  to  suppose  that  the  parties  had  china  clay  in 
contemplation  at  the  time  when  the  deed  was  executed.  There  is, 
indeed,  one  old  man  who  proves,  and  I  do  not  dispute  the  correct- 
ness of  what  he  says,  that  china  clay  was  at  the  time  being  got  in 
one  neighbouring  parish,  but  it  is  proved  that  it  was  not  got  in 
the  parish  in  question  for  a  great  many  years  afterwards.  And  it 
is  also  proved  that  it  was  not  until  years  after  this  that  the  duchy 
of  Cornwall  received  any  dues  for  getting  china  clay.  Upon  the 
whole,  therefore,  I  come  to  the  conclusion  that  the  words  here  used 
are  not  sufficiently  clear  to  give  the  owner  of  the  mines  the  abso- 
lute power  of  destroying  the  surface,  and  that*  the  defendants  have 
not  the  right  they  claim. 

There  is  one  argument  that  I  should,  perhaps,  notice.  It  was 
urged  that  streaming  for  tin  had  been  used  in  Cornwall  from  time 
immemorial ;  that  therefore  it  was  impossible  to  suppose  that  the 
right  of  streaming  for  tin  was  not  intended  to  be  reserved ;  and 
that,  as  streaming  for  tin  involved  an  injury  to  the  surface  of  the 
same  kind,  if  not  quite  to  the  same  extent,  as  the  taking  of  china 
clay,  the  fact  that  taking  the  china  clay  involved  the  destruction 
of  the  surface  was  no  sufficient  reason  for  holding  the  right  to  take 
it  not  to  be  reserved.  I  do  not  wish  to  give  any  decisive  opinion 
whether  the  right  of  streaming  for  tin  is  reserved  or  not,  as  that 
question  is  not  before  us,  and  may  be  of  very  great  importance. 
That  question  does  not  stand  quite  on  the  same  footing  as  the 
question  relating  to  the  taking  of  china  clay.     There  is  no  doubt 


446  MINES  AND  MINEBALS. 


No.  4.  — H«zt  ▼.  Gill,  L.  B.  7  Ch.  717,  718. 


that  streaming  for  tin  was  a  thoroughly  well-known  and  common 
process.  At  the  same  time,  tin  might  be  got  by  mining, 
[*  718]  and  the  *  owner  of  the  minerals  would  not,  by  being 
precluded  from  streaming,  be  deprived  of  all  power  to 
get  it,  and,  as  at  present  advised,  I  do  not  think  that  the  words 
of  the  power  in  the  present  case  are  sufficient  to  confer  a  right  of 
streaming  for  tin.  When  an  owner  of  both  surface  and  minerals 
sells  the  surface  and  reserves  the  minerals,  with  power  to  get  them, 
he  ought,  if  he  intends  to  have  the  power  of  destroying  the  surface 
in  getting  them,  to  frame  his  power  in  such  language  that  the 
Court  may  be  able  to  say  that  such  was  clearly  the  intention  of  the 
parties.  The  Vice-Chancellor  in  his  judgment  fully  acknowl- 
edged the  difficulty  that,  if  the  defendants  had  the  right  to  take 
china  clay,  the  reservation  might  be  absolutely  destructive  of  the 
grant,  but  said  he  could  not  see  where  he  was  to  fix  the  limit  to 
the  reservation  if  its  words  were  not  to  be  taken  according  to  their 
full  and  strict  meaning.  I  feel  myself  that  it  is  very  difficult  to 
say  where  the  limit  is  to  be  placed.  It  is  very  difficult  to  lay 
down  exactly  what  the  owner  of  minerals  may  do  for  the  purpose 
of  getting  them ;  but  I  do  not  think  it  would  be  right  or  just  to 
the  owner  of  the  surface  to  say  that  his  surface  may  be  destroyed 
because  there  may  be  a  difficulty  in  saying  exactly  what  the  owner 
of  minerals  may  do  and  what  he  may  not  do  in  every  case.  In  the 
present  case  I  think  the  result  is  this,  that  the  general  reservation 
of  minerals  includes  the  china  clay,  a  mineral  the  existence  of 
which,  apparently,  was  not  known  to  the  parties  at  the  time  when 
the  instrument  was  executed,  and  which  cannot  be  got  without 
destroying  the  surface.  It  appears  to  me  that  the  fair  result  of 
that  state  of  things  is  that  the  lord  of  the  manor  is  practically  in 
the  same  position  as  he  would  have  been  in  if  this  had  remained  a 
copyhold  tenement,  viz. ,  that  the  right  to  the  clay  is  in  him ;  but 
inasmuch  as  he  has  not  reserved  the  power  to  destroy  the  surface, 
and  inasmuch  as  this  clay  cannot  be  got  without  destroying  the 
surface,  he  cannot  get  the  clay  unless  he  can  make  some  arrange- 
ment with  the  owner  of  the  surface.  I  am,  therefore,  of  opinion 
that  the  plaintiffs  are  entitled  to  have  an  injunction  to  restrain  the 
defendants  from  getting  the  china  clay  in  such  a  way  as  to  destroy 
or  seriously  injure  the  surface;  but  as  they  have  failed  in  one 
most  essential  part  of  the  case,  — namely,  the  part  relating  to  the 
twenty-seven  acres,  —  they  ought  to  have  no  costs. 


B.  C.  VOL.  XVn.]  SECT.  I.  —  MINEKAL  PROPERTY.  447 

Nm.  3,  4.  — BeU  ▼.  Wilson;  Hezt  ▼.  Gill.  — Kotet. 

♦Sir  W.  M.  James,  L.  J.  :—  [*719] 

I  entirely  concur  both  with  the  conclusions  and  reason- 
ing of  the  Lord  Justice.  The  long  and  uniform  series  of 
authorities  appear  to  me  to  have  established  a  very  convenient 
and  consistent  system,  giving  the  mineral  owner  every  reasonable 
profit  out  of  the  mineral  treasures,  and  at  the  same  time  saving  the 
landowner's  practical  enjoyment  of  his  houses,  gardens,  fields,  and 
woods,  without  which  the  grant  to  him  would  have  been  illusory. 
But  for  these  authorities  I  should  have  thought  that  what  was 
meant  by  "  mines  and  minerals  "  in  such  a  grant  was  a  question 
of  fact  what  these  words  meant  in  the  vernacular  of  the  mining 
world  and  commercial  world  and  landowners  at  the  end  of  the  last 
century;  upon  which  I  am  satisfied  that  no  one  at  that  time 
would  have  thought  of  classing  clay  of  any  kind  as  a  mineral. 

ENGLISH  NOTES. 

In  the  case  of  Attorney^  General  v.  Tomline  (1877),  6  Ch.  D.  750, 
46  L.  J.  Ch.  654,  36  L.  T.  684,  25  W.  R.  802,  it  was  held  by  Fry,  J., 
citing  Hext  v.  Gill  (supra),  that  coprolites  found  in  a  copyhold  tene- 
ment are  the  property  of  the  lord  of  the  manor;  but,  where  the  lord  of 
the  manor  has  no  right  of  entry  to  get  minerals,  if  he  got  them  by  a 
trespass,  the  measure  of  damages  is  the  value  of  the  coprolites  less  the 
compensation  which  would  have  been  a  sufficient  inducement  to  a  licensee 
to  get  them. 

In  the  case  of  The  Attorney^  General  for  Isle  of  Man  v.  Mylchreest 
(1879),  4  App.  Cas.  294,  48  L.  J.  P.  C.  36,  40  L.  T.  764,  the  question 
was  as  to  the  right  of  the  customary  tenants  holding  of  the  lords  in  the 
Isle  of  Man,  to  dig  for  clay  and  sand  in  their  tenements.  The  Act  of 
Settlement  of  the  Isle  of  Man,  1803,  confirmed  to  the  tenants  their  cus- 
tomary estates,  ^'saving  always  (to  the  lord  inter  alia)  mines  and 
minerals  of  what  kind  and  nature  soever.''  It  was  in  evidence  that  the 
tenants  had  always  been  accustomed  to  dig  and  work  the  clay  and  sand 
in  their  tenements ;  and  this  evidence  was  held  sufficient  to  put  an  in- 
terpretation upon  the  saving  clause  so  as  to  show  that  the  clay  and  sand 
were  not  within  the  reservation. 

A  custom  for  farm  tenants  to  collect  flints  turned  up  in  plowing  and 
properly  removed  in  the  course  of  good  husbandry,  has  been  held  reason- 
able, and  not.  inconsistent  with  or  excluded  by  a  reservation  to  the  land- 
lord of  "all  mines  and  minerals."  Tucker  y.  Linger  (H.  L.  1883), 
8  App.  Cas.  508,  52  L.  J.  Ch.  941,  49  L.  T.  273,  32  W.  R.  40. 

Where  minerals  are  reserved  under  a  building  lease,  the  lessee  has 
the  right  to  dig  foundations  for  buildings  about  to  be  erected  under  the 


448  MINES  AND  MINEBALa 


Nos.  8,  4.  — BeU  ▼.  Wilwm;  Hat  ▼.  GiU.  — Hotet. 


lease,  and  to  dispose  of  the  materials  dug  out  for  that  purpose;  but  not 
to  dig  out  and  carry  on  a  trade  in  such  materials  irrespective  of  the 
requirements  of  the  buildings  intended  to  be  erected.  Robinson  v 
Milne  (1884),  53  L.  J.  Ch.  1070. 

A  landowner,  in  exercise  of  a  power  of  leasing  under  a  settle- 
ment, demised  land  to  a  gas  company  for  ninety-nine  years,  reserving 
mines  and  minerals,  but  without  reserving  any  power  of  entry.  In  mak- 
ing  the  necessary  excavations  for  a  gasometer,  an  ancient  prehistoric 
boat  was  discovered  embedded  in  the  soil  at  a  depth  of  from  4  to  6  feet. 
The  property  in  the  boat  was  adjudged,  by  Chittt,  J.,  to  the  lessors. 
Elwes  V.  BHgg  Gas  Co.  (1886),  33  Ch.  D.  562,  55  L.  J.  Ch,  734,  56 
L.  T.  831,  35  W.  R.  192. 

The  rule  in  Ifext  v.  Gill  was  followed  by  the  Court  of  Appeal  in 
.Earl  of  Jersey  v.  Neath  (Guardians  of  the  Poor),  1889,  22  Q.  B.  D. 
555,  58  L.  J.  Q.  B.  673,  37  W.  R.  388,  notwithstanding  the  decision 
of  the  House  of  Lords  in  Glasgow  (Lord  Provost)  v.  Farie  (No.  8,  infra), 
which  was  contended  in  argument  to  be  inconsistent  with  it.  In  this 
case  of  Uarl  of  Jersey  v.  Neath  (Guardians  of  the  Poor)  there  was  a 
conveyance  of  lands  reserving  to  the  grantor  '^all  mines  and  min- 
erals of  coal,  culm,  iron,  and  all  other  mines  and  minerals  whatsoever, 
except  stone  quarries  within  or  under  the  said  lands,  with  ample  and 
sufficient  powers  for  working  the  same,  and  for  making  any  roads,  &c., 
through,  over,  or  upon  the  lands  for  the  purpose  of  raising  and  carrying 
away  such  coal,  &c.,  provided  that  the  surface  shall  not  be  disturbed 
without  the  previous  consent  in  writing  of  the  [grantee],  his  heirs,  &c." 
The  defendants,  acting  as  rural  sanitary  authority,  obtained  from  the 
grantee  the  right  to  lay  certain  main  sewer  pipes  through  the  land. 
The  pipes  were  laid  about  six  feet  below  the  surface,  and  in  executing 
the  work  the  defendants  removed  a  portion  of  a  bed  of  brick-earth  and 
clay  capable  of  being  used  for  the  manufacture  of  bricks,  &c.  The 
Court  of  Appeal,  Lord  Esheb,  M.  R.,  Bowen,  L.  J.,  and  Fry,  L.  J., 
concurred  in  holding  that  this  brick-earth,  &c.,  was  the  property  of  the 
grantor,  and  that  he  was  entitled  to  compensation  accordingly.  Lord 
Justice  Bowen,  after  observing  that,  in  his  opinion,  Jffext  v.  Gill  was 
not,  and  was  not  intended  to  be,  overruled  by  the  decision  of  the  House  of 
Lords  (Glasgow,  Provost  of  v.  Farie,  No.  8,  infra),  said:  "Speaking  for 
myself,  I  think  that  the  rule  of  construction  laid  down  in  Hext  v.  GUI 
as  to  ordinary  reservations  in  ordinary  grants  of  land  is  absolutely  right. 
It  is  a  rule  which  seems  to  me  to  be  perfectly  intelligible  in  principle. 
There  is,  in  the  first  place,  a  grant  of  the  whole  land,  and  then  out  of 
it  there  is  reserved  something  which  is  called  'minerals.'  Now  the 
object  of  a  reservation  of  that  sort  must  be  the  severing  of  something 
from  the  land,  and  the  use  of  it  for  purposes  distinct  from  the  purpose 


R.  C.  VOL.  XVII.]  SECT.  L  —  MINEUAL  PROPERTY.  449 

Nm.  8,  4.  — BeU  ▼.  Wilaon;  Hext  ▼.  Gill.  —  HotM. 

for  which  it  is  used  as  land.  The  ohject  is  to  take  certain  constituents 
of  the  land  from  it  for  the  purpose  of  using  them^  as  Sir  Horace  Dayet 
has  said,  differently  from,  and  independently  of,  their  use  as  constituents 
of  the  land.  That  indicates  a  line  or  limit  down  to  which  the  definition 
of  '  minerals  ^  may  usefully  extend,  and  heyond  which  it  ought  not  to 
be  extended.  It  seems  to  me,  therefore,  that  the  rule  laid  down  in 
Hext  V.  Gill  is  a  rule  which  arises  directly  from  the  character  of  the 
transaction,  and  is  a  sound  rule  of  construction,  unless  there  is  some- 
thing in  the  context  to  control  it*  But,  apart  from  its  being  intelligi- 
ble in  principle,  the  rule  is  the  result  of  a  long  chain  of  authorities^ 
which  I  need  not  trace.  I  will  only  instance  the  case  of  The  Midland 
Railway  Company  v.  Gheckley,  L.  R.  4  Eq.  19,  36  L.  J.  Ch.  380,  in 
which  The  Master  of  the  Bolls,  Lord  Romilly,  states  the  same  rule  as 
that  afterwards  stated  by  Lord  Justice  Mellish.  Then  comes  Hext  v. 
GUli  decided  by  Lord  Justice  James  and  Lord  Justice  Mellish,  than 
whom  no  greater  authorities,  I  venture  to  say,  have  sat  in  our  time  in 
Courts  of  law.  They  say  that  the  result  of  the  authorities  is  this,  that 
a  reservation  of  minerals  in  a  conveyance  of  land  includes  every  sub- 
stance which  can  be  got  from  under  the  surface  of  the  earth  for  the  pur- 
pose of  profit,  unless  there  is  something  in  the  context  or  in  the  nature 
of  the  transaction  to  induce  the  Court  to  give  it  a  more  limited  meaning. 
I  will  only  add  this  observation  as  to  Hext  v.  Gilly  that  ever  since  that 
•case  was  decided  the  rule  there  laid  down  has  had  very  great  effect  upon 
business  transactions,  and  has  now  been  in  existence  for  seventeen  years, 
and  I  cannot  think  that  it  would  now  be  lightly  disturbed  by  the  House 
of  Lords,  or  without  great  consideration.  But  it  is  to  be  observed  that 
the  rule,  like  every  rule  of  construction,  admits  of  being  modified  by 
the  contents  of  the  document  itself,  and  there  are  many  classes  of  cases 
in  which  it  is  obvious  that  the  rule  must  be  modified.  For  example, 
where  the  surface  of  the  soil  is  taken  as  such,  and  where,  whether  ex- 
pressly so  stated  or  not,  it  is  obviously  the  intention  to  protect  the  sur- 
face thus  dealt  with  to  the  extent  which  the  Legislature  or  the  grantor 
has  indicated.  It  is  obvious  that  the  case  of  The  Lord  Frovost  of  Glas- 
gow V.  Farie  (No.  8,  infra)  is  a  case  of  that  sort.  It  is  a  case  in  which 
the  Courts  had  to  consider  the  special  language  of  the  legislation  vesting 
certain  special  interests  and  giving  certain  special  rights  which  were 
apparent  from  the  objects  of  the  Act  of  Parliament.  That  case,  there- 
fore, cannot  destroy  the  canon  of  construction  laid  down  by  Lord  Justice 
Mellish.  Of  course,  opinions  expressed  in  the  House  of  Lords  are  al- 
ways received  with  the  greatest  possible  respect,  but  as  to  what  the  Lord 
Ohakcellor  (Lord  Halsbuby)  is  reported  to  have  said  as  to  Hext  v, 
CHll^  I  cannot  help  thinking  that  either  he  has  been  imperfectly  reported, 
or  that  he  had  not  at  the  time  in  his  mind  the  exact  canon  of  construction. 
vol.  xvii. — 29. 


450  MINES  AND  MINERALS. 


Nm.  8,  4.  — BeU  ▼.  Wilson;  Hezt  ▼.  GilL  — NotM. 


of  Lord  Justice  Mellish,  because  the  Lord  Justice  does  not  say,  nor,  I 
think,  mean,  that  the  test  was  whether  the  minerals  could  be  worked  at  a 
market  profit  at  the  time,  but  whether  they  had  a  use  and  value  indepen- 
dently of,  and  separably  from,  the  rest  of  the  soil.  Lord  Watson  and 
Lord  Macnaghtex  do  not  seem  to  me  to  reject  Hext  v.  Gill,  though  I 
cannot  say  whether  they  would  have  come  to  the  same  conclusion  in  the 
first  instance  if  Hext  v.  Gill  had  not  been  decided.  Lord  Herschell 
expressly  recognises  Hext  v.  GilV^ 

The  decisions  as  to  the  rights  of  the  lord  to  work  minerals  in  the 
waste  under  a  reservation  made  by  an  Inclosure  Act  have  much  varied 
according  to  the  special  terms  of  the  Act.  See  Wakefield  v.  Duke  of 
Buccleuch  (1870),  L.  R.  4  H.  L.  377,  39  L.  J.  Ch.  441,  23  L.  T.  102; 
Bell  V.  Love;  Love  v.  Bell  (1884),  No.  20,  post,  9  App.  Cas.  286; 
Attorney-General  v.  Welsh  Granite  Co.  (C.  A.  1887),  35  W.  R.  617 ; 
Consett  Wateruwrks  Co.  v.  Ritson  (1889),  22  Q.  B.  D.  318,  702. 
But  the  following  remarks  of  A.  L.  Smith,  J.,  in  the  last  mentioned 
case  (although  in  the  judgment  which  was  reversed  in  the  Court  of 
Appeal  upon  the  special  terms  of  the  Inclosure  Act)  may  be  taken  as  a 
good  statement  of  the  law.  ''  It  is,"  he  says  (22  Q.  B.  D.  321),  «  now 
settled  and  undisputed  law  that  where  minerals  are  separated  from  the 
surface  the  mineral  owner  is  not  entitled  to  let  down  the  surface,  unless 
by  the  deed,  instrument,  or  Act  of  Parliament,  by  which  the  minerals 
are  severed  from  the  surface,  it  appears  that  the  surface  owner  has  parted 
with  the  right  of  support,  or,  in  other  words,  that  the  mineral  owner's 
right  to  get  the  minerals  is  limited  to  getting  them  in  such  a  manner 
as  not  to  occasion  injury  to  the  surface  owner,  which  is  the  same  thing. 
See  per  Baggallay,  L.  J.,  Bell  v.  Love,  10  Q.  B.  D.  at  p.  558,  and  the 
cases  there  cited,  and  also  per  Lord  Blackburn  in  Davis  v.  Trehame^ 
6  App.  Cas.  at  p.  466 ;  and  this  was  not  disputed  at  the  Bar." 

Fishboume  v.  Hamilton  (1890),  25  L.  R.  Ir.  483,  was  a  case  decided 
on  the  special  terms  of  an  Act  of  Parliament,  10  Geo.  I.  (Ir.),  c.  5, 
which  was  passed  for  the  purpose  of  promoting  mines  in  Ireland.  A 
grant  was  made  in  1712  of  lands  in  fee-farm,  reserving  to  the  grantor 
all  mines  and  minerals.  The  effect  of  this  if  it  had  stood  alone  was 
held  to  be  that  the  property  in  the  mines  remained  with  the  grantor, 
but  that  (on  the  authority  of  Hext  v.  Gill)  he  could  not  have  worked 
quarries  which  could  not  have  been  done  without  injury  to  the  surface. 
But,  by  sect.  4  of  the  Act  (which  relates  to  prior  as  well  as  to  future 
grants)  reciting  that  many  landowners  had  set  lands  in  fee-farm  with 
an  exception  of  mines  or  minerals,  it  is  enacted  that  the  proprietors  of 
the  rent  under  such  grants  shall  have  power  to  work  all  mines  and 
minerals,  and  carry  away,  &c.,  making  compensation  to  the  persons 
entitled  to  the  possession  of  the  lands;  and  upon  the  combined  opera- 


B.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  451 

Km.  3,  4.  —Bell  ▼.  WilBon;  Hext  ▼.  GilL  — KotM. 

tion  of  the  reservation  in  the  grant  and  the  Act,  it  was  held  hy  the 
Vice-Chancellob  and  by  the  Court  of  Appeal  that  the  successors  of  the 
grantor  were  entitled  to  work  quarries  upon  the  land,  making  compen- 
sation to  the  persons  entitled  under  the  grant  of  the  lands. 

As  to  the  cases  upon  the  interpretation  of  the  words  "mines  and 
minerals  ''in  the  reservation  clause  of  the  Bail  ways  Clauses  Consolida- 
tion and  similar  Acts,  see  Nos.  8  and  9,  and  notes,  p.  485,  et  seq.,  post^ 


AMERICAN  NOTES. 

Hext  V.  Gill  is  cited  in  Jones  on  Real  Property,  sect.  538,  and  is  cited  in 
Marvin  v.  Brewster  Iron  Co.,  55  New  York,  538 ;  14  Am.  Rep.  332,  with  the 
following  remarks :  **  The  whole  estate  was  at  first  in  Parks.  He  severed  it 
by  his  own  conveyance  to  Downs.  He  transferred  to  Downs  and  bis  grantees 
only  the  surface  land.  It  is  said  that  such  a  transfer  is  of  the  surface,  and  of 
all  profit  which  can  be  got  from  cultivating  it,  or  building  upon  it,  or  using 
it ;  that  thus  much  is  intended  to  be  conveyed.  Hext  v.  GUl^  Law  Rep. 
7  Chy.  App.  700.  But  as  in  the  same  conveyance  there  is  a  reserve  to  the 
grantor  of  an  important  part  of  the  general  estate,  and  of  important  incidents 
thereto,  it  is  manifest  that  if  the  reserve  is  effectual  and  still  operative,  there 
is  imposed  upon  the  estate  conveyed  a  serious  servitude ;  though  it,  in  its 
turn,  becomes  to  a  certain  extent  dominant  over  the  estate  reserved.  The 
remark  in  Hext  v.  GUI,  supra,  has  a  limit  then,  and  that  which  Parks  can  be 
reasonably  considered  to  have  granted,  is  the  surface  land,  and  such  measure 
of  support  subjacent,  as  was  necessary  for  the  surface  land,  in  its  condition 
at  the  time  of  the  grant,  or  in  the  estate,  for  the  purpose  of  putting  it  into 
which  the  grant  was  made.  Ccd.  R,  W.  v.  Sprot,  2  Macq.  Scotch  App.  Cases 
(H.  of  L.),  451.  The  plaintiff,  then,  as  the  grantee  by  mesne  conveyances 
from  Downs,  is  the  owner  of  the  surface,  with  all  these  rights  of  use  and 
profits  of  it,  subject  to  such  limitations  as  result  from  the  servitude  which 
his  estate  is  under. 

<*  There  is  a  clause  in  the  deed  from  Parks  to  Downs,  '  Reserving  always 
all  mineral  ores,  now  known  or  that  may  hereafter  be  known,  with  the  privi- 
lege of  going  to  and  from  all  beds  of  ore  that  may  be  hereafter  worked,  on 
the  most  convenient  route  to  and  from.'  The  learned  Justice  has  found 
that  this  is  a  reservation  of  all  ore  on  the  premises.  It  is  also  of  a  privilege 
of  way  upon  the  premises. 

"  The  right  to  work  a  mine,  reserved  by  the  grantor  of  the  surface,  carries 
with  it  the  right  to  penetrate  to  the  minerals  through  the  surface  of  the  land 
conveyed,  for  the  purpose  of  digging  them  out  and  removing  them.  Gould 
V.  G.  W.  />.  C,  Co.,  29  P.  820 ;  s.  c.  12  L.  T.  842 ;  13  id.  109 ;  Rogers 
V.  Taylor,  1  H.  &  N.  706 ;  Hext  v.  GiU,  supra.  This  being  so,  there  must  be 
included  in  the  right  to  break  through  the  surface,  the  right  to  do  so  in  such 
manner  as  is  most  advantageous  to  the  owner  of  the  right  to  mine,  so  that 
the  surface  is  not  wholly  destroyed.  By  this  is  meant,  that  he  has  a  right  to 
sink  a  shaft  vertically,  or  to  drive  a  way  horizontally,  or  to  do  both  in  differ- 
ent places,  so  that  he  may  reach  the  minerals  and  take  them  out  from  below 


452  MINES  AND  MINERALS. 


No.  6.  —  Bowier  ▼.  Maclaan.  —  Bnle. 


the  superjacent  earth,  following  the  veins  of  ore  with  excavations  below  the 
surface ;  always,  however,  under  the  restriction  that  what  he  does  it  is  neces- 
sary for  him  to  do  for  t^e  reasonable  use  and  enjoyment  of  his  property  in 
the  minerals.  We  are  aware  that  in  Harris  v.  Rydling,  supra.  Lord  Abin- 
6ER,  G.  B.,  is  reported  as  saying  to  the  effect  that  a  reservation  of  mines  and 
minerals  gave  no  right  to  sink  shafts  or  drive  cuts  upon  the  surface  of  the 
land  from  which  the  reservation  was  made.  He  is  the  only  Judge  who  there 
made  such  utterance.  It  was  not  upon  a  point  involved  in  the  case ;  it  was 
made  argumentatively.  It  is  opposed  to  the  general  rule  to  be  derived  from 
other  decisions.  That  case  turned  wholly  upon  the  point,  in  which  aU  the 
Judges  agreed,  that  miners  were  bound  to  leave  reasonable  support  for  the 
surface.  True,  Baylet,  J.,  in  Cardigan  v.  Armitagey  supra,  says  the  inci- 
dental power  <  would  allow  no  use  of  the  surface  as  surface,  in  its  unbroken 
state ; '  for  he  was  then  reasoning  toward  the  conclusion,  which  he  finally 
reached,  that  a  reservation  of  coal  below  the  surface,  reserved  also,  as  an 
incidental  right,  the  power  of  reaching  them  through  the  same  surface.  And 
in  the  same  case,  Holrotd,  J.,  suggesting  to  counsel,  arguendo,  said:  *li 
the  coal  itself  had  been  accepted,  without  more,  that  would  have  been  a  right 
of  entry  forever.'    And  see  Hodgson  v.  Field,  7  East,  613." 


No.  5.  — BOWSER  t?.  MACLEAN. 
(1860.) 

No.  6.  — EARDLET  v.  EARL  GRANVILLE. 
(1876.) 

RULE. 

Where  the  owner  of  the  freehold  of  inheritance  grants 
the  mines  (opened  as  well  as  unopened)  under  his  land  to 
one,  and  the  land  excepting  the  mines  to  another,  the  effect 
is  to  carve  out  the  land  in  superimposed  layers;  the  grantee 
has  the  property  and  exclusive  right  of  possession  in  the 
whole  space  occupied  by  the  layer  containing  the  minerals ; 
and,  after  the  minerals  are  taken  out,  is  entitled  to  the 
entire  and  exclusive  user  of  that  space  for  all  purposes. 

But  in  the  case  of  copyhold  land  held  under  the  usual 
copyhold  tenure,  the  lord  of  the  manor,  although  entitled 
to  the  minerals  and  to  have  access  to  work  them,  is  not 
entitled  to  the  possession  of  the  chamber  or  space  from 


B.  0.  VOL.  XVn.]  SECT.  I. — MINERAL  PROPERTY.  453 

No.  6.  >-  Bowier  ▼.  Kacleaa,  2  Be  O.  7.  &  J.  415,  416. 

which  they  have  been  taken,  for  the  purpose  of  carrying 
away  minerals  taken  from  land  outside  the  manor. 


Bowier  v.  Kaolean. 

2  De  G.  F.  &  J.  415-422  (s.  c.  30  L.  J.  Ch.  278). 

Mineral  Bights.  — Manor.  —  Copyhold  Tenement, 

The  lord  may  drive  carriages  along  a  tramway  nnder  copyholds  of  the  [415] 
manor,  for  the  purpose  of  working  mines  within  the  manor,  bat  not  of 
working  mines  beyond  its  limits,  and  a  bill  will  lie  for  an  injunction  at  the  suit 
of  a  copyholder  to  restrain  the  lord  from  using  the  tramway  for  the  latter  purpose ; 
nor  is  it  an  objection  to  such  a  bill  that  the  copyholder  is  not  in  possession  of  the 
surfiEu^,  but  has  let  it  to  a  tenant. 

This  was  an  appeal  from  the  decision  of  Vice-Chancellor  Sttjart 
allowing  a  demurrer  to  the  plaintiff's  bill,  and  refusing  a  motion 
for  an  injunction  with  costs. 

The  material  statements  on  the  bill,  which  was  filed  by  R 
Bowser,  J.  Humphries,  and  T.  Peacock,  against  Sir  Charles  F. 
Maclean,  were  to  the  following  effect :  — 

The  plaintiff,  Eichard  Bowser,  is  in  equity  seised  to  him  and 
his  heirs  of  the  lands,  tenements,  hereditaments,  and  prem- 
ises called  the  Cockton  Hill  estate,  situate  in  *  the  town-  [*  416] 
ship  of  Bondgate-in-Auckland  and  parish  of  Saint  Andrew's 
Auckland,  in  the  county  of  Durham,  and  such  estate  is  copyhold 
or  customary  freehold  of  the  manor  of  Bondgate-in-Auckland,  for- 
merly part  of  the  possessions  of  the  see  of  Durham,  but  now  be- 
longing to  and  vested  in  the  Ecclesiastical  Commissioners  in  right 
of  the  said  see;  and,  in  accordance  with  a  custom  of  the  said 
manor  in  that  behalf,  the  said  estate  is  now  vested  in  the  plain- 
tiffs, John  Humphries  and  Thomas  Peacock,  and  their  sequels,  as 
tenants  on  the  rolls  of  the  Court  of  the  said  manor,  upon  trust  for 
the  plaintiff,  Bichard  Bowser,  his  heirs  and  assigns;  and  the 
plaintiff,  Eichard  Bowser,  has  let  the  said  estate  for  nine  years 
past  to  one  Ealph  Hutchinson,  as  farmer  of  the  surface  thereof  only 
from  year  to  year. 

The  defendant,  Sir  Charles  Fitzroy  Maclean,  is  the  owner  or  pro- 
prietor of  a  colliery  called  the  Woodhouse  Close  Colliery,  the  pit 
or  shaft  of  which  is  sunk  upon  a  farm  called  the  Woodhouse  Close 
Farm,  which  one  Francis  Johnson  holds  under  lease  from  the  said 


454  MINES   AND  MINERALS. 


No.  6.  —  BowMT  ▼.  Xadean,  2  Be  O.  7.  &  J.  416,  417. 


see  of  Durham,  and  the  defendant  is  lessee  of,  and  works  the  coal 
mines  of,  the  said  see  of  Durham  under  the  copyhold  or  customary 
lands  comprised  in  the  said  manor  of  Bondgate-in-Auckland,  and 
the  said  defendant  draws  such  coals  to  the  bank  or  surface  at  the 
said  Woodhouse  Close  Colliery. 

The  plaintiff,  Eichard  Bowser,  recently  discovered  that  the 
defendant.  Sir  Charles  Fitzroy  Maclean,  had  for  some  time  past 
been  working  or  getting  the  coal  under  an  estate  called  the  Henk- 
nowle  estate,  the  property  of  Messrs.  Seymour,  and  no  part  or 
parcel  of  the  said  manor  of  Bondgate,  or  of  the  possessions  of  the 
lords  or  owners  of  the  said  manor,  or  of  the  lessors  of  the  said 
Woodhouse  Close  Colliery,  and  that  the  defendant  has 
[*  417]  *  so  worked  and  brought  the  said  coals  from  the  said 
Henknowle  estate  to  the  surface  at  the  said  Woodhouse 
Close  Pit  by  conveying  the  same  by  an  underground  railway  or 
tramroad  through  the  said  Cockton  Hill  estate  of  the  plaintiff, 
Eichard  Bowser,  and  that  the  defendant  has  also  drained  and 
ventilated  the  workings  of  the  said  Henknowle  coal  by  roads  or 
ways  through  the  said  Cockton  Hill  estate. 

The  bill  also  stated  applications  to  the  defendant  to  desist  from 
using  the  tramway,  and  that  he  had  not  complied  with  thent 

The  prayer  was,  that  the  defendant,  Sir  Charles  Fitzroy  Mac- 
lean, his  viewers,  agents,  and  workmen,  might  be  restrained  by 
injunction  from  conveying  any  coal  or  other  produce  from  the  said 
Henknowle  estate  through  the  Cockton  Hill  estate,  or  any  part 
thereof,  and  from  making  or  allowing  any  road  or  way  to  remain 
through  the  said  Cockton  Hill  estate  for  the  purpose  of  conveying 
any  such  coal  or  other  produce,  or  for  the  purpose  of  draining  or 
ventilating,  or  in  any  manner  working,  or  enabling  or  assisting 
the  defendant  to  work  or  get  any  coal  or  other  produce  out  of  the 
said  Henknowle  estate,  or  any  other  estate  or  property  not  com- 
prised in  and  held  of  the  manor  of  Bondgate-in-Auckland.  That 
an  account  might  be  taken  of  all  coal  and  other  produce  conveyed 
from  the  Henknowle  estate  by  the  defendant  through  the  Cockton 
Hill  estate,  and  also  of  all  coal  and  other  produce  wrought  and 
gotten  out  of  the  Henknowle  estate  by  the  defendant  which  had 
been  drained  or  ventilated  through  the  Cockton  Hill  estate,  and 
that  the  defendant  might  pay  the  plaintiff,  Eichard  Bowser,  for 
all  the  underground  way  leave  and  privileges  which  he  had  enjoyed 
in  working   and   getting   the  coal,    and    also   the   damage   sus- 


K.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL   PROPERTY.  455 

Ko.  6.  —  Bowser  ▼.  Xadean,  2  Be  O.  7.  &  J.  418,  419. 

tained  by  the  plaintifif,  Eichard  Bowser,  *  from  the  said  [*  418J 
acts  of  the  defendant,  Sir  Charles  Fitzroy  Maclean. 

The  arguments  urged  by  counsel  upon  the  appeal  are  stated 
in  the  judgment 

Mr.  Malins  and  Mr.  T.  Bates,  in  support  of  the  bill,  cited 
Mitchell  V.  DorSy  6  Ves.  146;  Hanson  v.  Gardiner,  7  Ves.  305, 
308;  Lewis  v.  Branthwaite,  2  B.  &  Ad.  437  (36  R  R  p.  613, 
ante^;  Keysev.  Powell,  2  El.  &  Bl.  132;  Farrow  y.  Vansittart,  1 
Eailw.  Ca.  602 ;  Powell  v.  Aiken,  4  K.  &  J.  343 ;  The  Earl  of 
Mexborough  v.  Botoer,  7  Beav.  127 ;  Thomas  v.  Oakley,  18  Ves. 
184;  Greyv.  Duke  of  Northumberland,  17  Ves.  281. 

Mr.  W.  D.  Lewis  and  Mr.  N".  Lindley,  contra,  cited  Deere  v. 
Gv^t,  1  Myl.  &  Cr.  516;  Jesus  College  v.  Bloom,  1  Amb.  54; 
Cowling  V.  Higginson,  4  M.  &  W.  245. 

Mr.  Malins  replied.  Judgment  reserved. 

The  Lord  Chancellor  (Lord  Campbell). 

I  am  of  opinion  that  in  this  case  the  demurrer  ought  to  have 
been  overruled. 

The  objection  to  the  bill  chiefly  relied  upon  in  the  Court  below 
was  that  the  plaintiffs  show  no  title  to  the  place  in 
which  the  wrong  complained  of  is  alleged  to  *  have  been  [*  419] 
committed,  and  no  possession  of  the  subsoil  of  Cockton 
Hill  estate,  through  which  runs  the  way  improperly  used  by  the 
defendant.  But  the  bill  alleges  that  the  plaintiffs  are  seised  of 
Cockton  Hill  estate,  which  is  described  as  copyhold  or  customary 
freehold  of  the  manor  of  Bondgate,  and  that  the  surface  only  of 
this  estate  is  let  to  one  Hutchinson,  as  farmer  thereof  from  year  to 
year.  Primd  facie  the  soil  from  the  surface  to  the  centre  of  the 
earth  belongs  to  the  plaintiffs,  and  the  possession  of  the  whole, 
except  the  surface  so  let,  remains  in  the  plaintiffs.  This  being 
copyhold,  the  property  in  the  minerals  is  in  the  lords  of  the 
manor,  and  they  have  let  all  the  coal  mines  within  the  manor  of 
Bondgate  to  the  defendant  For  the  working  of  these  mines  the 
defendant  has  a  right  to  make  a  tramway  through  the  subsoil  of 
the  Cockton  Hill  estate,  and  to  carry  along  this  tramway  any  coals 
which  he  may  dig  within  the  manor.  But  the  defendant  has  no 
right  to  drive  carriages  along  this  tramway  for  any  other  purpose 
besides  working  the  minerals,  &c.,  within  the  manor.  But  the 
bill  avers  that  he  drives  along  this  tramway  carriages  loaded  with 


456  MINES  AND  MINERALS/ 


Ho.  6.  — Bowser  ▼.  Kacleaa,  2  De  O.  7.  &  J.  419,  490. 


coals  dug  beyond  the  limits  of  the  manor,  that  he  may  bring  them 
to  the  surface  by  a  pit  within  the  manor.  Now  this  is  clearly  an 
illegal  use  of  the  tramway,  for  the  defendant  as  lessee  of  the  coal 
strata  within  the  manor  is  justified  only  in  making  such  a  use  of 
the  subsoil  of  the  copyhold  tenements  as  the  lord  himself  might 
make  for  working  the  coal  within  the  manor.  Witliout  working 
the  coal  within  the  manor,  the  lord  could  not  lawfully  make  a 
tramway  through  the  subsoil  of  the  manor  for  the  purpose  of  carry- 
ing upon  it  coals  dug  elsewhere,  and  if  he  did  he  would  be  liable 
to  an  action  of  trespass  at  the  suit  of  the  copyhold  tenants.  As 
little  can  he  lawfully  use  the  tramroad  which  he  has  made  law- 
fully for  the  carriage  of  coals  within  the  manor  for  the 
[♦  420]  purpose  *  of  driving  along  it  carriages  loaded  with  coals 
dug  beyond  the  limits  of  the  manor. 
Sut  it  is  said  that  the  plaintiffs  are  not  in  a  situation  to  sue  for 
this  wrong  as,  on  account  of  the  leases  of  the  surface  and  the  min- 
erals, they  show  no  title  or  possession,  and  they  cannot  be  damni- 
fied by  the  alleged  wrong.  I  am  of  opinion,  however,  that  the 
alleged  lease  of  the  minerals  to  the  defendant  can  be  no  more  than 
a  transfer  to  him  of  what  might  have  been  lawfully  done  by  the 
lord  of  the  manor  for  working  the  minerals.  The  possession  still 
remains  in  the  copyholder  subject  to  the  property  of  the  minerals 
being  in  the  lord  and  the  easements  of  the  lord  in  working  the 
minerals.  The  law  upon  this  subject  is  fully  settled  by  the  two 
cases  of  Zevns  v.  Branthwaite,  2  B.  &  Ad.  437  (36  E.  R  p.  613, 
ante),  and  Keyse  v.  Powell,  2  EL  &  Bl.  132.  I  am  inclined  to 
think  that  a  mistake  has  been  committed  in  not  distinguishing 
between  a  copyhold  tenement  with  minerals  under  it,  and  freehold 
land  leased  with  a  reservation  of  the  minerals,  or  freehold  land, 
where  the  surface  belongs  to  one  owner  and  the  subsoil,  containing 
minerals,  belongs  to  another,  as  separate  tenements  divided  from 
each  other  vertically,  instead  of  laterally.  If  this  had  been  such 
freehold  land  the  owner  of  the  surface  could  not  have  complained 
of  the  making  or  of  the  excess  in  using  a  tramway  through  the 
subsoil.  But  the  plaintiffs  seised  in  fee  of  this  copyhold,  though, 
at  the  will  of  the  lord,  after  letting  the  surface  only,  are  in 
possession  of  the  subsoil,  subject  to  the  rights  of  the  lord  in 
getting  the  minerals  according  to  the  custom  of  the  manor. 
Therefore,  they  are  injured  by  the  unlawful  use  of  the  tramway. 
The  amount  of  the  injury,   if   infinitesimally  small,  is  immate- 


B.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PROPERTY.  457 

No.  6.  — BowMT  ▼.  Kaclean,  2  De  0.  F.  &  J.  490,  422. 

rial  in  considering  whether  this  demurrer  should  be  allowed  or 
overruled. 

*  According  to  the  short-hand  writer's  note,  the  Vice-  [♦  421] 
Chancellor  rested  his  decision  on  this,  that  **  the  plain- 
tiff. Bowser,  has  not  averred  that  the  tramway  is  his. '  But  there 
was  no  necessity  for  such  a  specific  averment  if  the  bill  avers 
facts  showing  that  the  subsoil  over  which  the  tramway  is  carried 
belongs  to  Bowser  and  is  in  his  possession,  subject  to  the  lord's 
property  in  the  minerals  and  the  defendant's  easement  The  bill 
avers,  that  the  defendant  having  got  coals  under  the  Henknowle 
estate,  beyond  the  limits  of  the  manor  of  Bondgate,  had  brought 
these  coals  by  the  tramroad  through  the  Gockton  Hill  estate  of 
the  plaintiff.  Bowser,  and  also  had  drained  and  ventilated  the 
workings  of  the  Henknowle  coal  by  roads  or  ways  through  the  said 
Gockton  Hill  estate.  Such  allegations  seem  to  me  to  place  the 
defendant  in  the  same  condition  of  liability  as  if  he  had  had  no 
interest  whatsoever  in  the  minerals  under  the  Gockton  Hill  estate, 
or  any  part  of  the  manor  of  Bondgate,  and  he  had  been  a  wrong- 
doer in  the  making  of  the  tramway,  as  well  as  in  the  use  of  it 
For  these  reasons  the  objection,  that  the  plaintiffs  show  no  title 
in,  and  no  injury  to,  themselves,  seems  to  me  to  be  untenable. 

But  the  counsel  for  the  defendant  have  strenuously  argued  before 
me  that,  if  this  were  so,  still  the  plaintiffs  are  confined  to  an 
action  of  trespass  or  some  other  legal  remedy.  In  considering  this 
objection  we  must  bear  in  mind  that  the  bill  complains  of  a  secret 
and  clandestine  use  of  the  railway,  that  the  defendant  is  charged 
with  making  a  profit  by  this  surreptitious  use  of  the  way,  and  that 
the  bill  contains  the  statement  of  the  defendant  having  broken  the 
soil  in  the  mines  imder  Gockton  Hill  estate,  belonging  to  the 
plaintiffs,  for  the  purpose  of  making  a  communication  between 
these  mines  and  another  mine  in  his  occupation  beyond  the  limits 
of  the  manor,  and  having  ventilated  this  mine  with  air 
from  *  the  mines  within  the  manor,  obtained  by  the  barrier  [*  422] 
between  them  being  thus  broken.  Gan  it  be  said  that  all 
this  is  a  mere  dry  trespass,  for  which  a  Gourt  of  equity  will 
supply  no  remedy  ?  Deere  v.  Guest,  1  Myl.  &  Gr.  516,  was  very 
properly  cited  on  behalf  of  the  respondent;  but,  in  that  case, 
there  were  not  the  circumstances  of  aggravation  which  character- 
ise the  present  case.  In  subsequent  cases,  where  such  circum- 
stances have  occurred,  an  injunction  has  been  granted;  and  let 


458  MINES  AND  MINERALS. 

No.  6.  —  Eardlay  ▼.  Oranville,  8  Ch.  D.  826. 

me  remark  that  I  am  not  here  called  upon  to  decide  that  an 
injunction  shall  be  granted,  but  to  consider  whether  it  be  so  clear 
that  an  injunction  cannot  be  granted,  that  the  bill  is  demurrabla 

I  do  not  think  that  Thomas  v.  Oakley,  18  Ves.  184,  and  similar 
cases,  where  there  has  been  an  exportation  of  valuable  minerals 
or  a  destruction  of  part  of  the  inheritance,  are  authorities  in  sup- 
port of  the  present  suit.  But  Lord  Mexborough  v.  Bower,  7  Beav. 
127,  Powell  V.  Aiken,  4  K.  &  J.  343,  and  Farrow  v.  Vansittart,  1 
Eailw.  Ca.  602,  are  at  least  authorities  to  show  that  under  such  a 
bill  as  this  it  is  possible  that,  consistently  with  the  principles  of 
equity,  it  may  turn  out  that  the  plaintiffs  are  entitled  to  some  part 
of  the  remedy  which  they  pray.  I  am  far  from  saying  that  the 
allegations  in  the  bill,  if  sufficient  to  require  an  answer,  conclu- 
sively show  that  the  plaintiffs  are  entitled  to  the  injunction  prayed 
for,  or  to  the  account  or  discovery.  Upon  an  answer  and  evidence 
it  may  turn  out  on  the  hearing  that,  from  acquiescence  and  the 
minuteness  of  the  injury,  or  some  right  which  the  defendant  may 
disclose,  the  Court  may  refuse  the  injunction  and  dismiss  the  bill. 
But  the  demurrer  for  want  of  equity,  I  think,  cannot  hold,  and, 
reversing  the  decision  of  the  Vice-Chancellor,  I  must  order  that 
the  demurrer  be  overruled  with  costs. 

Eardley  v.  Oranville. 

3  Ch.  D.  826-836  (s.  c.  45  L.  J.  Ch.  669 ;  34  L.  T.  609 ;  24  W.  K.  528). 

[826]  Copyhold^'  —  Mines  and  Minerals,  Lessee  of,  —  Possession  of  SoQ  by 
Copyholder,  —  Carriage  of  Non-manorial  Minerals  over  and  wider 
Copyholds,  —  Acquiescence,  —  Ir^unction, 

In  an  ordinary  copyhold  manor  the  estate  of  the  copyholder  is  in  the  soil 
throughout  except  as  regards  trees,  mines,  and  minerals,  the  property  in  which 
remains  in  the  lord.  When  the  lord  has  removed  minerals  the  space  left  he- 
longs  to  the  copyholder.  The  right  of  the  lord  is  not  like  that  of  a  vendor  of 
freeholds  who  has  reserved  mines,  and  remains  the  owner  of  the  vacant  space 
from  which  minerals  have  been  removed. 

In  a  Crown  manor,  where  the  Crown  and  its  lessees  were  by  custom  entitled 
to  enter  on  the  land  for  the  purpose  of  working  the  minerals,  the  defendant,  the 
lessee  of  the  Crown  mines,  who  was  also  lessee  of  the  S.  mine  outside  the  manor, 
claimed  a  right  to  use  a  crut  or  underground  way  beneath  the  land  of  the  plain- 
tiffs, who  were  copyholders  of  part  of  the  manor,  for  the  purpose  of  conveying 
minerals  from  the  S.  mine  to  the  deep  pit  by  which  the  manorial  mines  were 
worked,  and  thence  hy  a  branch  railway  constructed  by  the  defendant  over  part 
of  the  same  copyhold  to  the  main  line. 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  459 

Ho.  6.  —  Sardley  ▼.  Granville,  3  Ch.  B.  826,  827. 

Hdd,  that  such  user  was  a  trespass,  and  that,  no  case  of  acquiescence  on  the 
part  of  the  plaintiffs  or  their  predecessor  in  title  having  been  established,  they 
were  entitled  to  an  injunction  to  restrain  the  defendant  from  carrying  the  S.  min- 
erals over  or  under  their  copyhold  land. 

The  plaintiffs  were  copyholders  of  part  of  the  manor  of  Newcastle- 
imder-Lyne,  as  successors  in  title  of  one  Ann  Adams. 

The  Crown,  in  right  of  the  Duchy  of  Lancaster,  was  seised  in  fee 
of  the  said  manor,  and  of  the  collieries,  mines,  seams  of  coal,  and 
minerals  lying  beneath  the  surface  of  all  lands  within  the  manor 
or  lordship.  The  defendant,  Earl  Granville,  was  lessee  under  the 
Crown  of  the  said  collieries,  mines,  and  minerals. 

The  defendant  alleged  that  from  time  immemorial  the  Crown 
and  its  lessees  had  the  right  to  work  the  collieries  and  mines,  and 
for  that  purpose  to  enter  upon  the  lands  and  on  such  parts  of  the 
surface  (not  being  land  covered  with  buildings)  as  might  be  re- 
quired for  the  purpose  of  working  the  mines,  making  to  the  tenants 
and  occupiers  reasonable  compensation ;  and  that  such  right  had 
been  exercised  by  the  Crown  and  its  lessees  beyond  the 
*  time  of  legal  memory,  and  that  the  copyhold  tenants  of  [*  827] 
the  manor  held  their  tenements  subject  to  such  custom. 

The  defendant's  predecessors  in  title  had  from  the  year  1731 
been  lessees,  under  the  Crown,  of  the  said  collieries,  mines,  and 
minerals,  under  successive  leases  for  thirty-one  years,  renewed 
from  time  to  time,  and  conferring  on  the  lessees  the  power  to 
exercise  the  rights  belonging  to  the  Crown. 

In  1852  the  defendant  was  lessee  under  a  lease  of  the  18th  of 
August,  1826,  and  was  working  the  mines  by  a  pit  called  "  the 
deep  pit. " 

On  one  side  of  the  manor  was  a  tract  of  freehold  land  then 
belonging  to  Ealph  Sneyd,  containing  mines,  and  beyond  Sneyd's 
land  there  was  some  freehold  land  then  belonging  to  Ann  Adams, 
who  was  also  at  that  time  copyholder  of  part  of  the  manor  between 
the  deep  pit  and  Sneyd 's  freehold. 

In  1851  Ealph  Sneyd  demised  mines  lying  beyond  the  manor  to 
one  Stanier,  who,  by  an  underlease  of  the  30th  of  November,  1852, 
demised  the  same  to  the  defendant  for  thirty  years. 

At  the  date  of  the  said  underlease  the  defendant  was  construct- 
ing a  branch  railway  from  the  deep  pit  within  the  manor  across 
the  copyhold  land  of  Ann  Adams  and  Sneyd 's  freehold  to  effect  a 
junction  with  the  North  Staffordshire  Eailway  at  Etruria.     In 


460  MIKES  AKD  MINERALS. 


Ho.  6.  —  Baidley  ▼.  OmiTille,  8  Ch.  D.  887,  828. 


order  to  complete  this  railway  it  was  necessary  to  carry  it  across 
the  freehold  land  of  Ann  Adams,  who,  by  a  lease  dated  the  10th 
of  December,  1852  (the  works  having  then  been  begun),  demised 
to  the  defendant  part  of  her  freehold,  containing  2500  square 
yards,  with  power  to  construct  a  railway  thereon,  with  the  neces- 
sary works,  and  to  use  the  same  for  the  term  of  thirty  years  from 
the  29th  of  September,  1852,  at  the  yearly  rent  of  £30,  and  it  was 
thereby  agreed  that  the  defendant  should  within  two  years  com- 
plete the  railway,  and  that  the  same  should  be  used  for  the  con- 
veyance of  coal  and  minerals  from  any  lands  or  mines  belonging 
to  or  occupied  by  the  defendant,  or  from  any  lands  or  mines  be- 
longing to  Sneyd,  and  for  no  other  purposes  except  to  carry  coal 
or  minerals  belonging  to  Ann  Adams,  her  heirs  or  assigns,  as 
therein  mentioned,  to  the  North  Staffordshire  Eailway. 

By  a  renewed  lease  from  the  Crown,  dated  the  27th  of  Septem- 
ber, 1855,  the  manorial  collieries,  mines,  and  minerals, 
[*  828]  were  *  demised  to  the  defendant  for  the  term  of  thirty-one 
years  from  the  29th  of  September,  1854,  at  the  rents  and 
royalties  thereby  reserved,  and  subject  to  the  payment  of  way- 
leave  for  minerals  not  the  property  of  the  Crown,  which  should  be 
brought  through  or  worked  by  means  of  any  of  the  pits  made 
under  the  powers  of  the  lease,  or  of  any  previous  lease  from  the 
Crown,  such  wayleave  not  to  extend  to  any  coal  or  minerals 
brought  from  the  lands  of  Sneyd  so  long  as  the  coal  and  minerals 
belonging  to  the  Crown  were  permitted  to  be  brought  without 
charge  through  the  pits  or  underground  ways  made  under  Sneyd  *s 
lands. 

The  plaintiffs,  by  their  bill,  filed  in  July,  1874,  alleged  that 
they  had  lately  discovered  that  the  defendant  had,  by  means  of  the 
said  railway  across  the  plaintiffs*  copyholds,  since  the  25th  of 
March  then  last,  conveyed  large  quantities  of  coal  and  ironstone 
from  the  mouth  of  the  deep  pit  (which  was  sunk  in  copyhold  land 
adjoining  the  plaintiffs')  to  the  North  Staffordshire  Railway. 

The  plaintiffs  also  alleged  that  they  had  lately  discovered  that 
the  defendant  had  for  some  time  past  been  working  or  getting  the 
coal  and  ironstone  from  the  Sneyd  mines,  and  had  brought  the 
same  to  the  mouth  of  the  deep  pit  by  conveying  them  by  an  under- 
ground road  or  crut  driven  through  the  subsoil  of  the  plaintiffs* 
copyhold,  which  subsoil  consisted  partly  of  seams  of  coal  and 
partly  of  seams  of  clay. 


B.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  461 

Ho.  6.  — Eazd]07  ▼.  GranTille,  8  Ch.  D.  828,  829. 

The  bill  prayed,  first,  that  the  defendant  might  be  restrained  by 
injunction  from  conveying  any  coal  or  other  produce  of  the  Sneyd 
mines  underneath  the  plaintiffs'  copyhold  lands,  and  from  making, 
or  using,  or  allowing  any  road  or  way  to  remain  underneath  the 
plaintiffs'  copyhold  lands  for  the  purpose  of  conveying  any  such 
coal  or  other  produce;  secondly,  that  the  defendant  might  be 
restrained  from  using  or  continuing  to  use  any  part  of  the  surface 
of  the  plaintiffs'  copyhold  land  for  the  purpose  of  a  railway  for 
conveying  any  coal  or  ironstone  of  the  Sneyd  freehold  lands,  and 
for  consequential  relief. 

The  defendant,  by  his  answer,  stated  that  the  taking  a  lease  of 
the  mines  under  the  Sneyd  estate,  and  the  taking  a  lease  from  Ann 
Adams  of  a  right  to  make  a  railway  over  her  freehold  property, 
and  the  construction  of  a  complete  line  from  the  deep  pit  over  her 
copyhold,  were  parts  of  one  scheme  for  the  purpose  of 
*  developing  and  working  the  mines  and  minerals  in  con-  [*  829] 
templation  of  the  renewal  of  the  Crown  lease ;  and  he  sub- 
mitted that  by  the  said  lease  Ann  Adams  gave  him  permission  to 
construct  the  railway  over  her  copyhold  land,  and  to  use  it  for 
the  purpose  of  conveying  minerals  not  only  from  the  Crown  col- 
lieries but  also  from  the  Sneyd  estate.  He  further  stated  that  he 
had  paid  to  the  occupying  tenant  of  the  copyhold  a  small  yearly 
sum  as  compensation  for  the  user  of  the  surface. 

The  defendant  further  stated  that  the  deep  pit  was  sunk  in 
1848,  in  a  piece  of  copyhold  land  adjoining  that  of  Ann  Adams, 
and  was  used  by  the  defendant  in  working  the  mines  held  under 
the  Crown,  and  also  for  working  the  mines  under  the  Sneyd  estate ; 
that  the  coal  and  minerals  from  the  Crown  property  were  some- 
times conveyed  in  carts  from  the  pit's  mouth  and  sometimes  by 
means  of  the  defendant's  railway  from  the  mouth  of  the  pit  to  the 
North  Staffordshire  Eailway,  and  some  of  such  minerals  (both 
Crown  and  Sneyd  indiscriminately)  were  conveyed  by  the  xmder- 
ground  road  or  crut,  which  was  constructed  after  the  date  of  the 
lease  of  the  10th  of  December,  1852,  through  the  mineral  ground 
at  a  depth  of  500  yards  below  the  surface  of  Ann  Adams'  copy- 
hold land  to  the  bottom  of  the  pit,  and  were  thence  raised  to  the 
surface. 

The  defendant  further  stated  that  the  use  of  the  railway  and  the 
underground  passage  had  been  notorious  for  above  twenty  years, 
also  that  the  mineral  ground  beneath  the  plaintiffs'  copyhold  land 


462  MIN£S  AND  MINERALS. 

Ho.  6.  —  Eardley  ▼.  Granville,  8  Gh.  D.  829,  880. 

where  the  crut  had  been  made  consisted  partly  of  seams  of  coal 
and  ironstone,  and  partly  of  strata  of  clay,  all  which  seams  and 
strata  belonged,  as  he  was  advised,  to  the  Crown,  and  that  the 
right  to  work  and  get,  and  also  to  use,  such  seams  £Lnd  strata  was 
vested  in  him  as  lessee  from  the  Crown ;  and  that  he  claimed  the 
right  to  use  such  underground  passage  for  bringing  minerals  from 
the  Sneyd  estate  for  assisting  him  in  working  the  mines  there- 
under by  virtue  of  the  express  provisions  of  the  Crown  lease,  by 
which  permission  was  given  him  to  convey  minerals  from  the 
Sneyd  estate  without  paying  any  way  leave  for  the  same. 

Southgate,  Q.  C. ,  and  C.  Batten  for  the  plaintiffs :  — 

The  defendant,  as  lessee  under  the  Crown,  is  only  enti- 

[*  830]   tied  to  *  use  the  railway  over  the  plaintiffs'  lands  and  the 

underground  road  for  the  purpose  of  carrying  the  Crown 

minerals,  not  those  worked  in  the  Sneyd  mines,  which  are  outside 

the  manor. 

Although  the  property  in  mines  under  copyhold  lands  is  in  the 
lord,  the  possession  of  the  lands  is  in  the  tenant,  who  can  main- 
tain trespass  in  respect  of  an  unauthorised  use  of  his  lands.  Zeivis 
V.  Branthwaite,  2  B.  &  Ad.  437  (36  R  R  p.  613,  ante) ;  Keyse  v. 
Powell,  2  K  &  B.  132. 

In  Bowser  v.  Maclean,  2  D.  F.  &  J.  415  (p.  453,  atvte),  it  was 
held  that  the  lord  of  a  manor  might  drive  carriages  along  a  tram- 
way under  copyholds  of  the  manor  for  the  purpose  of  working 
mines  within  the  manor,  but  not  of  working  mines  beyond  its 
limits. 

The  cases  which  relate  to  the  rights  of  a  lessor  of  freehold  land 
who  has  reserved  mines  and  minerals  from  the  demise  do  not 
apply.  In  Proud  v.  Bates,  34  L.  J.  Ch.  406,  where  the  lord  of  a 
manor  had  granted  a  lease  of  waste  land  of  a  manor  with  a  reser- 
vation of  the  mines,  with  power  to  work  them  and  with  free  way- 
leave  to  and  from  the  same,  it  was  held  that  the  lessor  and  those 
claiming  under  him  were  entitled  to  an  absolute  wayleave  for 
minerals  not  under  the  demised  property.  That  case,  however, 
will  not  support  the  defendant's  contention,  and  does  not  apply 
to  the  case  of  a  copyholder  who  is  entitled  to  the  soil  as  well  as 
the  surface.  So,  likewise,  the  case  of  Duke  of  Hamilton  v. 
Graham,  L.  R  2  H.  L.  Sc.  166,  has  no  application. 

In  Ooodson  v.  Richardson,  L.  R  9  Ch.  221,  the  Court  granted 
an  injunction  to  restrain  the  continuance  of  water-pipes  which  had 


i   _ 


K.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  463 

Ho.  6. — Eardley  ▼.  Granville,  S  Ch.  D.  880,  881. 

been  laid  in  the  soil  of  a  highway  without  the  consent  of  the 
owner  of  the  soil.  In  like  manner  we  contend  that  the  carrying 
of  minerals  from  the  Sneyd  mines  over  or  under  the  plaintiffs* 
land  is  a  trespass  which  they  are  entitled  to  come  to  this  Court  to 
restrain. 

The  defence  on  the  ground  of  acquiescence  cannot  be  sustained. 
'  Chitty,  Q.  C,  and  Cozens-Hardy  for  the  defendant:  — 

When  a  manor  contains  minerals  which  are  the  property  of  the 
lord,  he  and  his  lessees  are  entitled  to  work  them  in  any  way  he 
thinks  best;  the  defendant,  therefore,  as  lessee  under  the 
Crown,  *  is  entitled  to  the  use  of  the  underground  road  or  [*  831] 
crut  without  the  interference  of  the  copyholder,  who  has 
no  ownership  in  the  subsoil.  Lewis  v.  Branthwaite,  Duke  of  Hwror- 
ilton  V.  Chraham.  The  case  is  analogous  to  that  of  Ballacorkish 
Stiver  Mining  Company  v.  Harrison,  L.  R.  5  P.  C.  49,  where  a 
reservation  had  been  made  of  minerals  in  the  Isle  of  Man  to  the 
Crown,  and  it  was  held  that  the  Crown  was  entitled  to  the  use  of 
all  waters  percolating  by  natural  process  into  the  mines  when 
opened. 

As  regards  the  use  of  the  railway,  the  plaintiffs  are  precluded 
from  raising  any  objection  by  the  acquiescence  of  Ann  Adams,, 
their  predecessor  in  title,  who  must  be  taken  to  have  allowed  the 
railway  to  be  constructed  over  her  copyhold  land,  by  granting  a 
lease  of  her  freehold  land  for  the  purpose  of  carrying  the  Sneyd 
minerals,  which  she  knew  could  only  have  been  carried  from  the 
deep  pit  over  her  copyhold  land.  Such  acquiescence  disentitles  the 
plaintiffs  to  relief.  Dann  v.  Spurrier,  7  Ves.  231  (6  R  R  119) ; 
Duke  of  Beaufort  v.  Patrick,  17  Beav.  60 ;  Master,  &c.  of  Clare 
Hall  V.  Harding,  6  Hare,  273. 

Jessel,  M.  R  :  — 

This  is  really  an  undefended  suit;  when  you  come  to  look  at 
the  admissions  in  the  answer,  there  is  no  case  whatever  on  the  part 
of  the  defendant  [His  Lordship  then  stated  the  facts.]  It  is 
said  that  because  Ann  Adams,  by  her  lease  of  the  10th  of  Decem- 
ber, 1852,  gave  the  defendant  the  right  to  carry  the  coals  or  min- 
erals from  any  mines  belonging  to  him  or  belonging  to  Sneyd  (for 
this  purpose  it  is  immaterial)  —  therefore  she  gave  him  a  right  to 
carry  not  only  over  her  freehold,  but  over  the  copyhold ;  and  it  is 
said  she  must  have  given  him  the  right  for  this  reason,  because  he 
afterwards  made  a  communication  underground  from  the  pit  by 


464  MINES  AND   MINERALS. 

Ho.  6.  — Eurdley  ▼.  Granville,  8  Ch.  D.  881,  88S. 

means  of  a  crut  to  Sneyd's  lands  on  the  other  side  of  the  copyhold 
lands,  that  is,  instead  of  sinking  a  pit  in  the  freeholds  of  Sneyd^ 
which  adjoined  the  freehold  of  Ann  Adams,  he  made  a  communi- 
cation imdergTound  from  the  deep  pit  by  a  crut  through  the  copy- 
hold land,  and  then  carried  the  coal  up  the  deep  pit  and  thence 

along  the  railway. 
[*  832]  *  But  it  would  appear  that  at  the  time  Ann  Adams 
granted  the  lease  of  a  part  of  her  freehold  land  for  the 
purpose  of  the  railway,  and  gave  the  defendant  the  right  to  carry 
coals  from  any  mines  which  belonged  to  or  were  occupied  by  him 
—  at  that  period  she  did  not  know  how  he  was  going  to  work  the 
mines  of  Sneyd.  She  expressly  granted  the  right  over  her  free- 
hold lands,  but  she  did  not  grant  any  right  over  her  copyhold 
lands.  Acquiescence  is  out  of  the  question.  The  Earl  had  not 
only  a  right  to  make  the  works,  but  he  did  make  almost  all  the 
works  previously,  and  he  had  a  right  to  make  them  without  her 
consent  and  in  spite  of  her  refusal.  There  is,  therefore,  no  acqui- 
escence. If  he  claims  a  right  to  carry  coals  from  the  Sneyd  mines 
over  her  copyhold  lands,  he  must  make  out  some  legal  title.  But 
he  has  not  a  shadow  of  legal  title ;  and  as  to  acquiescence,  there  is 
no  equitable  title :  consequently,  as  far  as  that  is  concerned,  he  is 
a  mere  trespasser,  and  he  being  a  trespasser  comes  within  the 
well-established  doctrine  of  Goodson  v.  Richardson,  L.  R  9  Ch. 
221,  and  Rochdale  Canal  Corrvpany  v.  King,  2  Sim.  (N.  S.)  78, 
where  damages  would  be  no  compensation  for  a  right  to  property, 
and  the  plaintiffs  are  entitled  to  prohibit  him  by  injunction. 
There  may  be  little  or  no  injury  to  the  estate,  but  if  they  restrain 
him  he  will  be  glad  to  pay  a  wayleave. 

The  other  part  of  the  case  is  still  more  singular  when  I  look  at 
the  answer.  The  crut  was  made  in  the  way  described,  and  the 
result  was  that  the  coal  passing  under  the  copyhold  lands  of  the 
plaintiffs,  formerly  of  Ann  Adams,  it  was  brought  from  Sneyd's 
land  out  of  the  manor,  through  an  opening  or  tunnel  under  the 
copyhold  lands  belonging  to  the  plaintiffs  without  their  consent. 

The  law  upon  that  subject  has  been  well  considered,  and  it  has 
been  settled  by  authority  which  is  certainly  binding  upon  me. 
The  law  seems  to  stand  in  this  way :  The  estate  of  a  copyholder  in 
an  ordinary  copyhold  (for  it  is  an  estate)  is  an  estate  in  the  soil 
throughout,  except  as  regards  for  this  purpose  timber-trees  and 
minerals.     As  regards  the  trees  and  minerals,  the  property  remains 


E.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PBOPEBTY,  465 

Ho.  6.  —  Eurdley  ▼.  Chranvilte,  8  Ch.  D.  882,  888. 

in  the  lord,  but,  in  the  absence  of  custom,  he  cannot  get  either  the 
one  or  the  other,  so  that  the  minerals  must  remain  unworked,  and 
the  trees  must  remain  uncut  The  possession  is  in  the  copy- 
holder; the  property  is  in  the  lord.  If  a  stranger  cuts 
•down  the  trees,  the  copyholder  can  maintain  trespass  [*833] 
against  the  stranger,  and  the  lord  can  maintain  trover  for 
the  trees.  If  the  lord  cuts  down  the  trees,  the  copyholder  can 
maintain  trespass  against  the  lord;  but  if  the  copyholder  cuts 
down  the  trees,  irrespective  of  the  question  of  forfeiture,  the  lord 
can  bring  his  action  against  the  copyholder. 

So  in  the  case  of  minerals.  If  a  stranger  takes  the  minerals, 
the  copyholder  can  bring  trespass  against  the  stranger  for  interfer- 
ing with  his  possession,  and  the  lord  may  bring  trover,  or  what- 
ever the  form  of  action  may  be  pow,  against  the  stranger  to  recover 
the  minerals.  The  same  rule  applies  to  minerals  as  to  trees.  If 
you  once  cut  down  the  tree,  the  lord  cannot  compel  the  copyholder 
to  plant  another.  The  latter  has  a  right  to  the  soil  of  the  copy- 
hold where  the  tree  stood,  including  the  stratum  of  air  which  is 
now  left  vacant  by  reason  of  the  removal  of  the  tree.  So,  if  the 
lord  takes  away  the  minerals,  the  copyholder  becomes  entitled  to 
the  possession  of  the  space  where  the  minerals  formerly  were,  and 
he  is  entitled  to  use  it  at  his  will  and  plesisure.  If  you  have  a 
shaft  made  for  working  the  mines,  the  copyholder  may  descend  in 
the  shaft,  and  either  walk  about  in  the  space  below,  or  use  it  for 
any  other  rational  purpose.  That  is  the  position  of  the  copy- 
holder. That  being  so,  and  there  being  no  minerals  in  this  crut, 
if  that  is  the  law,  the  Earl,  as  Crown  lessee,  cannot  have  a  greater 
right  than  the  Crown,  that  is,  the  lord  or  lady  of  the  manor.  He 
has,  therefore,  no  right  now  to  trespass  on  the  copyhold  for  any 
purpose  whatever,  because  I  assume  he  does  not  want  it  for  the 
purpose  of  working  the  manorial  minerals;  for  that  purpose  he 
has  a  right  to  use  it ;  but  assuming  that  he  does  not  want  it  for 
that  purpose,  but  only  wants  it  for  the  purpose  of  carrying  the  coal 
from  under  Sneyd's  estate  — that  is,  foreign  coal  — he  has  no 
right  to  use  it  at  all.  Of  course  the  injunction  to  be  granted  will 
only  restrain  him  from  using  it  for  that  purpose ;  it  will  not  afTect 
the  other  right  It  is  not  trespass  while  he  carries  Crown  min- 
erals    It  is  trespass  when  he  uses  it  for  any  other  purpose. 

I  take  it  that  the  law  is  clearly  settled,  and  I  am  surprised  to 
hear  it  disputed.     In  the  first  place,  the  law  is  laid  down,  perhaps 
VOL.  xvn. — 80 


466  MINES  AND   MINERALS. 


Ho.  6.  —  Eurdley  ▼.  Granville,  S  Gh.  D.  8SS-886. 


not  as  accurately  as  might  be  wished  as  regards  the  words 
[*  834]  used,  *  by  Lord  Campbell  in  Bowser  v.  Maclean,  2  D.  F. 
&  J.  420  (p.  453,  ante) :  "  I  am  inclined  to  think  that  a 
mistake  has  been  committed  in  not  distinguishing  between  a  copy- 
hold tenement  with  minerals  under  it,  and  freehold  land  leased 
with  a  reservation  of  the  minerals  *  —  he  should  have  said  "  of  the 
mines, "  but  he  has  used  the  words  "  reservation  of  the  minerals,  * 
meaning  an  exception  of  the  mines  —  "or  freehold  land  where  the 
surface  belongs  to  one  owner  and  the  subsoil,  containing  minerals, 
belongs  to  another,  as  separate  tenements  divided  from  each  other 
vertically,  instead  of  laterally.  *  That  is  quite  intelligible ;  what 
he  means  is  this  —  he  does  not  say  it,  but  he  means  it  —  If  a  free- 
holder grants  lands  excepting  mines  he  severs  his  estate  vertically, 
i.  e. ,  he  grants  out  his  estate  in  parallel  horizontal  layers,  and  the 
grantee  only  gets  the  parallel  layer  granted  to  him,  and  does  not 
get  any  underlying  mineral  layer  or  stratum.  That  underlying 
stratum  remains  in  the  grantor.  The  freeholder  retains  the  min- 
eral stratum  as  part  of  his  ownership ;  and  whether  or  not  he  takes 
the  minerals  or  subsoil  out  of  the  stratum,  the  stratum  still  be- 
longs to  him  as  part  of  the  vertical  section  of  the  land.  But  he 
says  in  the  case  of  a  copyholder,  that  is  not  so,  because  the  copy- 
holder, though  he  has  no  property  in  the  stratum  in  the  sense  of 
being  entitled  to  take  the  minerals,  has  property  and  possession  in 
this  sense,  that  the  moment  the  minerals  are  taken  away  the  space 
is  in  his  possession,  and  he  only  can  interfere  with  it,  the  lord 
having  no  right  to  do  so. 

The  same  proposition  was  laid  down  in  the  case  of  Zeivis  v. 
Branihwaite,  2  B.  &  Ad.  437  (36  R  R  p.  613,  anU\  where  Lord 
Tenterden  expressly  puts  it  that  there  is  no  distinction  between 
trees  and  minerals  as  regards  the  law  of  copyholds,  and  so  in  the 
case  before  Lord  Campbell  of  Keyse  v.  Powell,  2  E.  &  B.  132. 

Then  it  has  been  suggested  that  the  recent  case  of  Duke  of 
Hamilton  v.  Graham,  L.  R  2  H.  L.  Sc.  166,  has  somehow  or 
other  altered  the  law ;  but  it  has  not  That  was  a  Scotch  case, 
and  it  was  treated  as  being  the  same  as  a  grant  by  an  English 
freeholder.  It  exactly  concurs,  therefore,  in  its  reasoning 
[•  835]  with  the  decision  of  Vice-Chancellor  *  Wood  in  the  case  of 
Proud  v.  Bates,  34  L.  J.  Ch.  406,  and  the  decision  of 
Lord  Campbell  in  Bowser  v.  Maclean,  2  D.  F.  &  J.  415  (p.  453, 
ante),  that  where  a  freeholder  grants  lands  excepting  the  mines. 


B.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PROPERTY.  467 

Ho.  6.  —  Eardley  ▼.  Granville,  8  Ch.  D.  835,  886. 

he  intends,  first  of  all,  as  a  matter  of  construction,  to  except  not 
merely  minerals,  but  the  portion  of  tlie  subsoil  containing  the 
minerals;  in  other  words,  to  retain  a  stratum  of  the  property. 
And  if  he  does  that,  of  course  the  lessee  or  grantee  has  no  title 
whatever  to  the  portion  of  the  stratum  reserved.  That  is  all  that 
the  case  of  Duke  of  Hamilton  v.  Graham  decided.  It  decided  that 
the  same  law  applies  to  Scotland  which  applies  to  England.  In  a 
case  like  that  the  word  **  mines  *  meant  subsoil  containing  the 
minerals,  and  not  merely  the  minerals  themselves. 

The  only  other  case  that  was  referred  to  was  the  case  in  the 
Privy  Council  from  the  Isle  of  Man  of  BallacorTdsh  Silver  Mining 
Company  v.  Harrison,  L.  R  5  P.  C.  49.  It  was  a  case  decided 
upon  exactly  the  same  principle.  In  that  case  it  was  not  merely 
a  lord  of  the  manor  depending  upon  his  ordinary  title  as  lord  of 
the  manor,  but  also  upon  the  Act  of  Tynwald,  which  was  an  Act 
of  Parliament  of  the  Isle  of  Man,  by  which  the  mines  were  re- 
served to  him ;  and  Lord  Penzance,  who  gave  the  judgment,  said 
this  (L  E.  5  P.  C.  62) :  "  The  Act  affirms  that  he  has  excepted 
out  of  the  grant  not  only  the  minerals,  but  that  portion  of  the  soil 
which  contains  the  minerals,  and  which  constitutes  the  *  mine. '  * 
Consequently  they  had  only  to  decide  this :  that  on  their  own  inter- 
pretation of  the  Act  the  mine,  meaning  the  portion  of  the  subsoil 
containing  the  minerals,  being  excepted,  remained  in  the  lord  of 
the  manor,  and  the  copyholder  had  nothing  whatever  to  do 
with  it  That  was,  therefore,  entirely  distinguishable  from  the 
ordinary  case  of  an  English  copyholder  who  had  the  possession  of 
the  minerals.  So  far  from  interfering  with  the  law  as  laid  down 
in  other  cases,  that  case  confirms  it,  because  the  Privy  Council 
would  not  have  had  recourse  to  the  Act  of  Parliament  if  the  law 
had  given  it  to  the  lord  of  the  manor  as  part  of  the  customary  law 
applicable  to  copyholders,  and  he  would  have  been  entitled  to  it 
entirely  irrespective  of  the  legislative  provisions  upon  which  he 
relied. 

*  That  being  so,  it  appears  to  me  perfectly  clear  on  this  [*  836] 
part  of  the  case  also,  that  the  plaintiffs  are  entitled  to  the 
injunction  which  they  seek.     The  plaintiffs  will  have  the  costs  of 
the  suit 


468  MINES   AND  MINERALS. 


Hof.  6,  6.  —  Sowwr  ▼.  Kacleaa ;  Eardley  ▼.  Earl  Granville.  —  Hotea. 


ENGLISH  NOTES. 

In  Lewis  y.  BrarUhwaite  (1831),  2  B.  &  Ad.  437,  36  R.  R.  613,  it 
was  held  that  in  copyhold  lands,  although  the  property  of  the  minerals 
was  in  the  lord,  the  possession  was  in  the  tenant,  and  the  tenant  might 
maintain  trespass  against  an  adjoining  owner  for  breaking  and  entering 
the  subsoil  and  taking  coal  therein,  although  no  trespass  is  committed 
on  the  surface.  The  judgments  in  the  case  are  referred  to  in  Keyse  v. 
Powell  (1853),  2  El.  &  Bl.  132,  22  L.  J.  Q.  B.  305,  17  Jur.  1052,  as 
undoubted  law,  and  applicable  to  the  possession  of  a  leaseholder  under 
a  lease  where  there  is  no  express  reservation  of  mines.  The  tenant  is 
in  possession  of  the  minerals,  although  he  has  no  right  to  work  them. 

The  right  of  the  lord  of  a  manor  to  the  minerals  in  the  waste  is  of  a 
different  character,  since  he  is  entitled  to  the  whole  soil  of  the  waste 
subject  to  the  rights  of  the  commoners  to  the  pasturage,  &c.  And 
therefore  where,  under  an  Inclosure  Act,  the  waste  was  allotted  to 
commoners,  reserving  to  the  lord  "  all  mines  and  minerals  ...  in  as 
full,  ample,  and  beneficial  manner  as  he  could  or  might  have  held  and 
enjoyed  the  same  in  case  this  Act  had  not  been  made,"  with  full  liberty 
of  digging,  sinking,  searching  for,  and  working  the  said  mines  and 
minerals,  and  carrying  away  the  lead  ore,  lead,  coals,  ironstone,  and 
fossils  to  be  gotten  thereout ;  —  it  was  held  that  the  reservation  must 
be  construed  with  reference  to  the  original  rights  of  the  lord  in  the 
soil,  and  that  he  was  entitled  under  the  reservation  to  work  and  carry 
away  a  stratum  of  stone  to  be  used  for  building  as  well  as  the  coal  and 
ironstone  which  lay  beneath.  Rosse  {Earl  of)  v.  WainToan  (1845),  14 
M.  &  W.  859,  15  L.  J.  Ex.  67  (affirmed  Ex.  Ch.)  2  Ex.  800, 

In  Proud  v.  Bates  (1865),  34  L.  J.  Ch.  406,  12  L.  T.  406,  a  question 
arose  under  the  following  circumstances.  A  lease  of  waste  land  of  a 
manor,  recently  enclosed  by  the  lessee,  contained  a  reservation  to  the 
lessor,  the  lord  of  the  manor,  of  the  mines  and  quarries,  with  full  power 
to  win  and  work  the  same,  with  free  wayleave  and  passage  to,  from,  and 
along  the  same,  on  foot  or  on  horseback,  with  all  manner  of  carriages. 
The  defendants,  under  a  title  derived  from  the  lord  of  the  manor  under 
the  reservation,  had  driven  a  way  through  the  coal  seam  under  the  land, 
which  they  used  for  the  purpose  not  only  of  working  and  carrying  away 
the  coal  comprised  in  the  reservation,  but  also  for  carrying  away  coal 
got  from  other  properties.  In  order  to  make  the  drift-way  convenient 
for  working  with  horses,  they  had  cut  away  the  solid  rock  above  the 
seam  of  coal  to  a  height  of  about  one  foot  six  inches ;  and  the  plaintifts 
claimed  an  injunction  against  their  using  this  drift  for  the  outside  coal 
without  paying  a  wayleave.  It  was  held  by  Wood,  V.  C,  that  the 
defendants  under  the  reservation  were  justified  in  cutting  the  drift 


R.  C.  VOL.  XVn.]  SECT.  L  —  MINERAL  PROPERTY.  469 

Hob.  5,  6.  — Bowier  ▼.  Maelean;  Eardley  ▼.  Earl  GranviUe. — Hotes. 

(subject  to  their  obligation  to  support  the  plaintiffs'  land);  and  were 
entitled  to  use  the  drift  when  cut  for  all  purposes.  The  learned  Vicb- 
Ghakcellob  gave  his  reasons  for  this  decision  as  follows :  ^^  I  do  not 
think  there  is  really  any  substantial  difficulty  on  the  whole  construction 
of  the  lease,  looking  at  the  circumstances  attendant  upon  it,  and  seeing 
what  it  is  the  lessor  has  reserved.  He  is  lord  of  the  manor,  and  he  makes 
two  leases  of  this  kind;  he  at  the  time  is  owner  of  all  the  mines  as  lord 
of  the  manor,  and  he  excepts  out  of  this  demise,  as  he  excepted  out  of 
the  next  demise,  the  whole  of  the  mines  ;  and  upon  that  word  '  mines/ 
there  can  be  no  question:  it  cannot  be  less  than  the  minerals  which  the 
mines  contain.  Whether  the  word  < mines'  be  used  in  the  sense  of 
minerals,  the  thing  dug  out  of  the  mines,  or  that  which  contains  the 
minerals,  that  which  contains  cannot  be  less  than  the  thing  contained; 
and  therefore  there  is  no  doubt  that  the  whole  containing  chamber  which 
has  the  minerals  is  the  mine;  and  so  far  as  the  mines  are  concerned, 
there  is  no  question  that  they  are  altogether  out  of  the  demise.  And  as 
regards  any  right  of  using  the  mines,  they  never  having  been  demised 
at  all  or  parted  with,  the  defendants  are,  of  course,  at  liberty  to  use  them 
as  they  may  think  fit;  and  the  case  of  Bowser  v.  Maclean  (p.  453,  ante) 
completely  explains  what  the  right  view  is.  Lord  Campbell  says, 
with  regard  to  copyholds,  the  copyholder  has  the  whole  right  demised 
to  him;  the  whole  right  is  in  him,  but  subject  to  the  right  of  the  lord 
to  work  the  mines.  The  copyholder  is  owner,  and  the  lord  cannot  use 
an  underground  way  for  the  purpose  of  passing  through  any  of  the  copy- 
hold premises ;  but  as  regards  that  which  is  excepted  out  of  the  demise 
by  contract,  of  course  the  owner  can  use  whatever  he  excepts  just  in  any 
way  he  may  thiuk  fit ;  and  as  regards  that  part  of  the  case,  I  should 
never  have  had  a  moment's  hesitation  or  doubt. 

'^The  only  point  that  can  raise  the  question  is  that  small  point  about 
the  headway  of  a  foot  and  a  half  for  the  use  of  horses  and  carriages  ; 
and  the  question  is,  whether  the  plaintiff  is  entitled  to  demand  a  way- 
leave  in  respect  of  that.  That  any  such  intent  existed  is  perhaps  absurd 
to  suppose.  We  must  collect  the  intent  from  the  instrument,  and  the 
instrument  alone.  I  cannot  quite  follow  the  argument  of  Sir  Hugh 
Cairns  when  he  says  that  a  way  leave  and  right  of  way  are  excepted. 
I  do  not  think  anything  can  be  excepted  out  of  a  demise  except  that 
which  is  part  of  the  property  itself.  It  is  not  a  right  issuing  out  of  the 
property  which  can  be  excepted.  You  either  demise  or  not  the  whole 
of  the  property.  If  you  do  demise  the  whole  property  and  except  any- 
thing, then  it  is  by  way  of  re-grant,  as  in  the  case  of  hawking  or  hunting, 
which  was  very  much  discussed  in  two  cases,  in  which  all  the  learning 
on  the  subject  is  collected,  — the  one,  Wickham  v.  Hawker ,  7  ^  &  W. 
63,  10  L.  J.  (N.  S.)  Ex.  153,  and  the  other,  Doe  v.  Lock,  2  Ad.  & 


470  MINES   AND   MINEBALS. 


Km.  5,  6.  —  BowMT  ▼.  Maclean;  Eardley  ▼.  Earl  QraiiTille.  — Hotel. 

E.  705,  743,  4  L.  J.  (N.  S.)  K.  B.  113;  and  therefore,  I  apprehend, 
that  so  far  this  must  be  considered  not  to  be  a  reservation  of  the  whole 
ownership  in  that  sense,  but  a  grant,  as  it  were,  to  be  taken  out  of  the 
property  demised ;  and  the  question  is,  what  is  the  extent  of  that  grant 
which  the  landlord  has  so  insisted  on,  —  a  grant  merely  for  the  purpose 
of  working  those  particular  mines,  or  has  he  insisted  on  a  grant  giving 
him  an  absolute  right  to  this  user  for  any  purpose  whatsoever  ?  There  is 
no  limitation  whatever ;  and  furthermore,  there  is  this,  that  the  first 
exception  of  the  mines  would  give  him  the  restricted  right  of  working 
those  mines.  The  exception  of  mines  themselves  would  carry  that  right 
without  any  other  words  whatsoever.  That  is  determined  in  that  case  of 
Lord  Cardigan  v.  Armitage,  2  B.  &  C.  197,  26  R.  R.  313,  where  it 
was  held  that  where  once  you  reserve  mines  you  reserve  everything  that 
is  necessary  for  working  them,  of  course  including  the  way  leave  for  carry- 
ing away  the  materials,  and  especially  finding,  as  I  do  here,  the  words 
^the  right  of  winning,  working,'  and  so  forth.  That  is  therefore  one 
ground  for  supposing  that  when  the  reservation  was  expressed,  as  it  is 
here  expressed,  it  was  not  intended  to  be  restricted  to  the  limited  right. 

"  But,  further  than  that,  you  have  the  circumstances  of  the  grant. 
The  lessor  was  entitled  to  the  property  in  the  whole  manor,  of  which 
this  is  part ;  and  if  you  look  at  the  probable  intent  and  purpose  of  the 
parties,  it  confirms  and  strengthens  the  view  that  what  is  expressed  to 
be  absolute  here  is  meant  to  be  absolute,  and  that  the  lessor  has  reserved 
to  himself  the  full,  complete,  and  absolute  right  of  going  through  this 
property  with  carriages  and  horses  for  any  purpose  whatever,  and  for 
any  unlimited  object  he  may  think  fit.  I  think,  therefore,  as  to  that 
part  of  the  case,  I  must  dismiss  the  bill,  and  dismiss  it  with  costs.** 

The  case  of  The  l>uke  of  Hamilton  v.  Graham  (1871),  L.  R.  2  H.  L. 
Sc.  166,  was  an  appeal  from  Scotland  in  a  case  where  a  former  Duke  of 
Hamilton,  grantor  of  a  feu  charter,  had  reserved  to  himself  (as  the 
superior),  his  heirs  and  successors,  "  all  and  sundry  the  coal  and  lime- 
stone within  the  bounds  of  the  lands  before  specified,  so  as  it  shall  be  law- 
ful to  the  said  Duke  and  his  foresaids  to  set  down  coal-pits,  shanks,  and 
sinks,  and  win  coal  and  limestone,  within  the  bounds  of  the  said  lands, 
or  any  part  thereof ;  and  to  make  all  engines  and  easements  necessary 
for  carrying  on  the  said  coal  and  limestone  work,  and  free  ish  and  entry 
thereto  for  making  sale  thereof  and  away  taking  the  same;  the  said 
Duke  and  his  foresaids  always  giving  satisfaction  for  any  skaith  or 
damage  through  downsetting  the  coal-pits,  sinks,  or  shanks,  or  by 
winning  the  said  coal  or  limestone,  or  by  the  roads  and  passages  for 
away  taking  the  same."  The  question  was  whether  the  pursuer  (suc- 
cessor in  the  superiority)  was  entitled  to  make  and  use  a  passage  through 
the  reserved  coal  and  limestone  for  the  carrying  away  of  coal  and  lime- 


B.  C.  VOL.  XVII.]     SECT.  I. —  MINERAL  PROPERTY.  471 

Hob.  6,  6.  —  Sowwr  ▼.  Maelean ;  Eardley  ▼.  Earl  Oranville.  —  H otM. 

stone  from  under  other  lands.  The  House  of  Lords  (by  a  majority, 
Lord  Hatherley,  L.  C,  Lord  Westbury,  and  Lord  Colonsay,  diss. 
Lord  Chelmsford),  reversing  the  judgment  of  a  majority  of  the  Lords 
of  Session,  and  restoring  the  judgment  of  the  Lord  Ordinary,  held  that 
he  had  such  right. 

The  Lord  Chancellor  (Lord  Hatherley)  stated  the  general  princi- 
ples applicable  to  the  case,  as  follows:  '^By  the  law  of  England,  when 
you  demise  a  property,  excepting  a  certain  part  of  it,  there  is  no  demise 
of  the  part  excepted.  Thus  minerals  excepted  remain  in  the  lessor. 
The  lessee  takes  no  interest  or  right  whatever  in  them.  If,  on  the 
other  hand,  you  reserve  certain  rights  and  interests,  parting  with  the 
property,  the  rights  and  interests  reserved  must  enure  by  way  of  re-grant 
from  the  person  to  whom  you  make  the  disposition.  I  so  held  in  Proud 
V.  Bates,  34  L.  J.  Ch.  406.  In  Scotland  there  may  be  a  direct  feudal 
title  to  certain  portions  of  land,  and  there  may  be  a  direct  feudal  title 
also  to  certain  strata  of  land  interposed  between  the  centre  of  the  earth 
and  the  surface,  which  may  belong  to  another  proprietor  by  a  distinct 
feudal  title,  and  those  titles  may  be  dealt  with  and  disposed  of  as  if 
they  were  two  separate  tenements  in  every  respect;  showing  very  clearly 
the  distinction  between  a  reservation  of  the  land  itself,  and  a  reserva- 
tion of  a  right  or  privilege.  If  you  reserve  only  a  servitude,  or,  as  we 
should  call  it,  an  easement,  all  the  Judges  agree  that  the  law  of  Scot- 
land (like  our  English  law)  is,  that  you  cannot  use  a  servitude  for  any 
other  purpose  than  the  particular  purpose  for  which  it  was  originally 
created,  just  as  you  cannot  use  an  easement  for  any  other  purpose  than 
that  for  which  it  was  originally  granted." 

Lord  Westbury  observed  that  the  effect  of  the  reservation  in  the  grant 
was  to  show  that  the  Duke  intended  to  retain  the  plenum  dominium, 
over  the  mines.  He  combated  the  position  taken  in  the  opinion  of  Lord 
Chelmsford  that  the  powers,  which  he  considered  to  be  superadded, 
were  to  be  made  use  of  for  limiting  or  restricting  that  dominium.  He 
held  that  the  absolute  estate  in  the  mines  was  not,  and  never  was  in- 
tended to  be,  affected  by  the  feudal  grant,  and  consequently  might  be 
enjoyed  and  dealt  with  precisely  as  if  there  had  been  no  grant  of  the 
dominium  utile  of  the  land.  He  further  observed:  **The  same  thing 
would  take  place  in  England,  but  I  am  very  reluctant  upon  a  matter  of 
this  kind  to  have  recourse  to  English  authorities  or  English  rules  at  all. 
Suppose,  now,  that  in  one  of  the  chalk  counties  I  granted  an  estate  to  a 
person,  retaining  to  myself  the  strata  of  chalk  lying  beneath  the  sur- 
face, —  we  all  perfectly  well  know  that  many  a  stratum  of  chalk  lying 
beneath  the  surface  is  fifty,  sixty,  or  eighty  feet  deep,  —  is  it  meant  to 
be  said  that  I  have  not  a  right  to  run  a  tunnel  through  that  stratum  of 
my  own  property  which  is  thus  reserved  to  me,  and  to  use  that  tunnel 


472  MINES  AND  MINERALS. 


Hob.  5,  6.  —  Bowier  ▼.  Maclean ;  Eazdley  ▼.  Earl  Oraimlle.  —  Hotea. 

for  any  collateral  purpose  of  the  estate  adjoining  that  stratum  so 
reserved  ?  " 

Lord  CoLONSAT  said :  "  I  think  that  in  the  Court  below  a  great  deal 
of  difficulty  has  been  introduced  into  this  case  by  not  clearly  keeping  in 
view  the  distinction  between  a  right  of  property  and  a  right  of  servitude. 
The  case  is,  in  some  respects,  a  novel  one,  and  I  am  not  surprised  that 
there  may  have  been  a  difference  of  opinion  in  regard  to  what  might  be 
the  rights  of  the  parties  with  respect  to  certain  views  of  contingent 
interests  such  as  those  arising  in  the  event  of  the  exhaustion  of  the 
minerals.  And  I  am  not  surprised  that  there  has  been  some  difference 
of  opinion  with  regard  to  what  was  the  meaning  of  this  reservation. 
But  it  is  quite  obvious  to  all  feudalists,  that  the  right  of  the  Duke  of 
Hamilton  rests  not  upon  the  deed  which  he  granted  to  Mr.  Graham, 
but  upon  his  right  to  the  barony  and  lands  under  his  original  infeftment; 
the  deed  to  Mr.  Graham  only  shows  that  that  part  of  the  Duke's  original 
estate  which  has  been  spoken  of  as  having  been  reserved,  has  not  been 
given  away.  It  is  a  great  mistake  to  say  that  the  Duke  has  no  right 
to  use  those  minerals  except  for  the  purpose  of  bringing  them  to  the 
surface.  He  may  use  them  in  the  way  which  is  most  beneficial  to  him- 
self. For  instance,  he  may  have  reserved  the  stratum  merely  in  order 
to  prevent  his  adjoining  minerals  from  being  flooded  by  water.  That 
would  be  a  beneficial  enjoyment  of  it  without  bringing  it  to  the  surface. 
He  may  be  the  possessor  of  minerals  lying  upon  a  certain  inclination 
east  and  west  of  these,  and  the  water  may  be  accumulating  upon  his. 
minerals  to  the  west,  and  he  may  use  the  stratum  of  minerals  he  has 
reserved  for  the  purpose  of  enabling  him  to  conduct  the  water  through 
those  minerals  down  to  the  lower  level  on  the  east,  and  so  get  rid  of  it. 
There  are  various  ways  in  which  he  may  turn  the  minerals  to  account 
without  bringing  them  to  the  surface;  and  I  cannot  understand  that 
so  long  as  the  stratum  of  minerals,  that  is  to  say  the  estate  which  re- 
mains to  him  and  is  not  given  away,  continues  to  exist,  he  cannot  use 
it  in  any  way  that  is  beneficial  to  himself  unless  he  uses  it  to  the  injury 
of  his  neighbour.'' 

The  subsequent  case  of  Ramsay  v.  Blair  (also  an  appeal  from  Scot- 
land, H.  L.  Sc.  1876),  1  App.  Cas.  701,  is  instructive  as  to  the  effect 
of  reservations  of  minerals  in  various  degrees  of  comprehensiveness. 
In  1825  a  parcel  of  land  was  granted  "reserving  (to  the  grantor,  his 
heirs,  &c.)  the  coal  and  coal-heughs."  In  1857  another  parcel  was 
granted  "  reserving  (to  the  grantor,  his  heirs,  &c.)  the  coal,  with  power 
to  dig  for,  work,  and  carry  away  the  same,  on  paying  the  surface  dam* 
age."  In  1827  a  parcel  of  land,  which  lay  between  the  two  parcels 
contained  in  the  grants  of  1825  and  1857,  had  been  granted  "reserving 
(to  the  grantor,  his  heirs,  &c.)  the  whole  coal,  stone  quarries,  and  all 


R.  C.  VOL.  XVn.]  SECT.  I.  — MINERAL  PROPERTY.  473 

Hob.  5,  6.  ~  Sowwr  ▼.  Kaclem;  Eardley  ▼.  Earl  OmiTille.  — Hotel. 

other  metals  and  minerals  (within  the  lands  granted)  with  power  to 
search  for,  work,  and  carry  away  the  same,  they  always  paying  (to  the 
grantee,  &c.)  all  damages  which  may  he  done  to  the  said  lands  hy  the 
workings.'' 

Mr.  Blair,  pursuer  and  appellant,  was  in  right  of  the  grantees  of  the 
land;  and  the  defenders,  respondents  in  the  appeal,  were  entitled  to  the 
rights  under  the  reservations. 

The  strata  of  coal  under  the  three  parcels  of  land  lay  in  a  slanting 
direction;  and  for  the  purpose  of  working  the  coals  in  the  parcels  con- 
tained in  the  grants,  and  also  for  the  purpose  of  carrying  away  coals  in 
other  lands,  the  defenders  had  driven  through  the  pursuer's  land  a  level, 
cutting  the  several  seams  of  coal  at  a  considerable  angle.  The  strata, 
other  than  the  coal,  through  which  the  level  was  driven,  were  of  no 
marketable  value. 

The  action  (by  the  proprietor  of  the  land  against  the  mine  owners) 
was  for  an  interdict  (or  injunction)  against  carrying  through  this  level, 
or  through  any  other  mine  under  the  land,  any  coal  from  outside  the 
lands  contained  in  the  three  grants,  except  on  payment  of  a  wayleave. 

The  House  decided  (in  affirmance  of  the  decision  of  the  Court  of 
Session,  who  had  affirmed  the  judgment  of  the  Lord  Ordinaby)  that, 
so  far  as  relates  to  the  parcel  of  land  contained  in  the  grant  of  1827,  the 
mine  owners  were  entitled  to  make  their  mine  through  any  of  the  under- 
ground strata,  whether  consisting  of  minerals  of  any  commercial  value 
or  not,  and,  the  mine  (or  level)  having  been  made,  to  use  it  for  carrying 
away  minerals  wherever  got :  but  that,  so  far  as  relates  to  the  parcels 
contained  in  the  grants  of  1825  and  1857,  the  mine-owners  had  no  pro- 
prietary right  in  the  minerals  other  than  the  coal,  and  consequently 
had  no  right  to  cut  through  the  strata  other  than  the  coal,  or  to  use  any 
levels  or  mines  so  cut,  except  by  way  of  easement  for  the  purpose  of 
getting  the  coal  reserved  by  those  grants.  The  result  was  that  the 
interdict  was  granted,  except  as  to  any  mines  under  the  land  contained 
in  the  grant  of  1827;  an  exception  which  was  probably  useless  to  the 
defenders,  who  were  sufficiently  blocked  by  the  strata  not  consisting 
of  coal  in  the  land  contained  in  the  grants  of  1825  and  1857.  Lord 
Hathbrley,  in  his  judgment,  takes  occasion  to  explain  the  grounds  of 
the  decision  in  the  Duke  of  Hamilton  v.  Graham  as  follows:  "In  the 
case  of  Duke  of  Hamilton  v.  Graham  it  was  clearly  pointed  out  what 
the  exact  right  of  a  proprietor  was  in  respect  of  a  property  excepted  out 
of  a  demise;  and  as  to  which,  therefore,  all  the  original  rights  of  the 
demising  proprietor  remained,  together  with  all  the  incidents  to  that 
property  necessary  to  its  working  and  enjoyment,  that  which  the  owner 
has  reserved  to  himself  being  as  much  his  as  other  parts  of  his  land  of 
which  he  has  made  no  demise  whatever.     In  the  Duke  of  Hamilton's 


474  MINES  AND  MINERALS. 


Hot.  5,  6.  — BowMT  ▼.  Maclean ;  Xardley  ▼.  Earl  Chraaville.  —  Hotel. 

Case  it  did  not  appear  from  the  evidence  that  he  was  exceeding  his 
right ;  it  did  not  appear  that  he  was  using  for  any  purpose  whatever 
anything  but  that  portion  of  the  mineral  property  which  he  had  actually 
reserved,  and  over  which  he  had  entire  and  complete  dominium;  and, 
therefore,  it  was  held  that  he  was  not  transgressing  his  own  grant,  or 
departing  in  any  way  from  it.  But  as  respects  the  power  of  working, 
whether  incidental  to  the  reservation  of  the  property,  or  expressly 
specified  in  the  instrument,  no  right  of  property  is  attached  to  that  — 
it  is  simply  a  right  of  availing  yourself  of  that  property  which  you  have 
reserved  to  yourself  in  the  lands  in  question."        ' 

In  the  case  of  Ballacorkish,  &c.  Mining  Co,  v.  Harrison  (an  appeal 
from  the  Isle  of  Man,  1873),  L.  R.  5  F.  C.  49,  it  was  held  that  all  mines 
and  minerals  being  vested  in  the  Crown,  as  successor  to  the  lords  of  the 
Isle  and  under  their  original  title  to  the  soil,  the  lessees  of  the  Crown 
could  not  be  restrained,  at  the  instance  of  the  farm  tenants,  from  work- 
ing the  mines  so  as  to  intercept  (on  the  principle  of  ChcLsemore  v. 
Richards,  1  R.  C.  729)  all  water  finding  its  way  by  percolation  through 
the  soil. 

In  Cooper  v.  Crahtree  (1882),  20  Ch.  D.  589,  51  L.  J.  Ch.  544,  47 
L.  T.  5,  30  W.  R.  649,  the  principal  case  of  Bowser  v.  Maclean  is  cited 
by  the  Master  of  the  Rolls  as  an  instance  of  a  special  class  of  cases 
where  there  is  an  injury  to  the  reversion  which  may  be  restrained  by 
an  injunction,  although  the  damages  to  be  obtained  in  an  action  may 
be  nothing.  The  case  there  was  distinguished,  being  a  mere  trespass 
consisting  of  the  erection  of  a  hoarding  of  an  obviously  temporary 
character. 

In  Fowell  v.  Vickerman  (4  Feb.  1889),  3  Times  L.  R.  358,  the  plain- 
ti£E  and  defendant  were  tenants  in  common  of  certain  seams  of  coal  and 
culm,  and  the  defendant  held  an  express  grant  of  the  right  to  get  his 
share  of  those  minerals.  The  seam  being  only  eighteen  inches  in  height, 
the  defendant  worked  it  —  as  was  necessary  —  by  galleries  cut  partially 
into  mineral  substances  not  reserved.  He  used  these  galleries  also  for 
the  purpose  of  working  coal  belonging  to  himself  from  an  adjoining 
property.  Mr.  Justice  Kekicwich  held  that  he  was  not  entitled  to  do 
this,  and  observed  that  the  cases  of  Eardley  v.  Granville,  Ramsay  v. 
Blair,  and  Hamilton  v.  Graham,  supra,  were  not  inconsistent  with 
this  decision. 

In  The  AUomey- General  v.  Welsh  Granite  Co.  (1887),  35  W.  R.  617, 
certain  waste  lands  in  Wales  were,  under  an  Inclosure  Act,  allotted, 
an  allotment  being  made  to  the  King  in  respect  of  his  rights  as  lord. 
The  Act  gave  the  Commissioners  of  Woods  and  Forests  the  right  to  sell 
this  allotment  subject  to  the  rights  of  the  King  to  the  ^^  mines,  ores, 
minerals,  coal,  limestone,  or  matter  whatsoever  in  or  under  the  samOi'' 


E.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  475 

Hot.  5,  6.  — Bowier  v.  Maclean ;  Eardley  y.  Sail  Granville.  —  Hotel. 

and  by  a  proviso  reserved  to  the  King  his  rights  to  ^'any  mines,  ores, 
minerals,  coal,  limestone,  or  slate"  in  the  waste  land,  and  gave  a  right 
of  compensation  to  the  owners  of  the  land  for  any  damage  done  in 
digging,  raising,  and  carrying  away  such  mines,  &c.  It  was  held  that 
the  word  "  minerals  "  in  these  reservations  included  granite  ;  and  that 
the  Crown  was  entitled  to  win  the  granite  by  open  workings. 

AMERICAN  NOTES. 

A  grant  of  a  mine  with  mining  privileges  is  not  an  easement,  but  carries 
a  freehold.  Caldwell  v.  FuLton,  31  Penn.  State,  475;  72  Am.  Dec.  760;  Zinc 
Co.  V.  Franklinitey  13  New  Jersey  Equity,  341 ;  Knight  v.  Ind,  Coal  Co.,  47 
Indiana,  105;  17  Am.  Rep.  692,  to  the  effect  that  in  this  country  a  grant  or 
exception  of  the  ores  of  an  unopened  mine  is  regarded  as  a  grant  of  a  part  of 
the  inheritance,  the  deed  and  its  registration  supplying  the  place  of  livery  of 
seisin.  See  LiUibridge  v.  Lackawanna  C.  Co.,  143  Penn.  St.  293;  24  Am. 
St.  Rep.  544 ;  F&rhes  v.  Gracey,  94  United  States,  762. 

The  owner  of  a  ranch,  conveying  a  portion  of  it,  reserved  the  oils  and  min- 
erals, with  the  right  to  do  whatever  was  necessary  to  obtain  and  transport 
them,  including  the  erection  of  machinery  and  laying  of  pipes.  It  was  held 
that  having  also  acquired  Ihe  oils  and  minerals  in  the  rest  of  the  ranch, 
he  was  not  authorized  to  use  the  land  first  conveyed  for  pumping  or  storing 
oil  found  in  the  other  portions  of  the  ranch.  Dietz  v.  Mission  Transfer  Co., 
95  California,  92. 

The  owner  of  mining  rights  cannot  use  the  surface  for  converting  coal  into 
coke.     Williams  v.  Gibson,  84  Alabama,  228;  5  Am.  St.  Rep.  368. 

Where  a  landowner  has  conveyed  the  coal  under  his  land  by  grant,  the 
gprantee  owns  the  coal,  but  nothing  else  save  the  right  of  access  to  it  and  the 
right  to  remove  it,  and  when  it  is  all  removed,  his  estate  ends,  and  the 
space  it  occupied  reverts  to  the  grantor  by  operation  of  law.  Chartiers*  B. 
M.  Co.  V.  Mellon,  152  Penn.  State,  286 ;  34  Am.  St.  Rep.  645.  The  Court 
said :  "  Our  question  is  over  the  right  of  the  vendor  to  reach  strata  underlying 
a  stratum  which  he  has  conveyed  to  another.  Having  sold  the  coal  under- 
lying the  surface,  is  he  to  be  forever  barred  from  reaching  his  estate  lying 
beneath  the  coal?  Prior  to  the  sale  of  the  coal  his  estate,  as  before  observed, 
reached  from  the  heavens  to  the  centre  of  the  earth.  With  the  exception  of 
the  coal  his  estate  is  still  bounded  by  those  limits.  It  is  impossible  for  him 
to  reach  his  underlying  estate,  except  by  puncturing  the  earth's  surface  and 
going  down  through  the  coal  which  he  has  sold.  While  the  owner  of  the  coal 
may  have  an  estate  in  fee  therein,  it  is  at  the  same  time  an  estate  that  is 
peculiar  in  its  nature.  Much  of  the  confusion  of  thought  upon  this  subject 
arises  from  a  misapprehension  of  the  character  of  this  estate.  We  must 
regard  it  from  a  business  as  well  as  a  legal  standpoint.  The  grantee  of  the 
coal  owns  the  coal  but  nothing  else,  save  the  right  of  access  to  it  and  the  right 
to  take  it  away.  Practically  considered,  the  grant  of  the  coal  is  the  grant  of 
a  right  to  remove  it.  This  right  is  sometimes  limited  in  point  of  time ;  in 
others  it  is  without  limit.     In  either  event  it  is  the  grant  of  an  estate  detex^ 


476  MINES   AND  MINERALS. 


Ho.  7.  —  Townley  v.  Qibwrn. — Bvle. 


minable  upon  the  removal  of  the  coaL  It  is,  moreover,  a  grant  of  an  estate 
-which  owes  a  servitude  of  support  to  the  surface.  When  the  coal  is  all  removed 
the  estate  ends  for  the  plain  reason  that  the  subject  of  it  has  been  carried 
away.  The  space  it  occupied  reverts  to  the  grantor  by  operation  of  law.  It 
needs  no  reservation  in  the  deed  because  it  was  never  granted.  The  grantee 
has  the  right  to  use  and  occupy  it  while  engaged  in  the  removal  of  the  coal, 
for  the  reason  that  such  use  is  essential  to  the  enjoyment  of  the  grant.  It  can- 
not be  seriously  contended  that  after  .the  coal  is  removed  the  owner  of  the  sur- 
face may  not  utilize  the  space  it  had  occupied  for  his  own  purposes,  either  for 
shafts  or  wells,  to  reach  the  underlying  strata.  The  most  that  can  be  claimed 
is  that  pending  the  removal,  his  right  of  access  to  the  lower  strata  is  sus- 
pended. The  position  that  the  owner  of  the  coal  is  also  the  owner  of  the 
hole  from  which  it  has  been  removed,  and  may  forever  prevent  the  surface 
owner  from  reaching  underlying  strata,  has  no  authority  in  reason,  nor  do  I 
think  in  law.  The  right  may  be  suspended  during  the  operation  of  the  re- 
moval of  the  coal  to  the  extent  of  preventing  any  wanton  interference  with 
the  coal  mining;  and  for  every  necessary  interference  with  it  the  surface 
owner  must  respond  in  damages.  The  ovmer  of  the  coal  must  so  enjoy  his 
own  rights  as  not  to  interfere  with  the  lawful  exercise  of  the  rights  of  others 
who  may  own  the  estate,  either  above  or  below  him.  The  right  of  the  sur- 
face owner  to  reach  his  estate  below  the  coal  exists  at  all  times.  The  exercise 
of  it  may  be  more  difficult  at  some  times  than  at  others,  and  attended  with 
both  trouble  and  expense." 


No.  7.— TOWNLEY  v.  GIBSON. 

(1788.) 

RULE. 

The  word  "  soil/'  as  used  to  describe  the  property  of  the 
lord  in  the  waste  of  a  manor,  primSt  fade  includes  the  sur- 
face and  all  that  is  below  it ;  and  where  an  allotment  is 
made  under  an  Inclosure  Act  of  part  of  the  waste  to  the 
lord  in  lieu  of  his  interest  in  the  soil,  and  of  the  residue  to 
tenants  of  the  manor,  a  general  saving  clause  to  the  lord 
of  seigniories,  rents,  &c.,  does  not  operate  as  a  reservation 
to  the  lord  of  the  mines  and  minerals  under  the  allotments 
made  to  the  tenants. 


B.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PBOPERTY.  477 

Ho.  7.  — Ttownley  v.  Gibwm,  2  T.  B.  701,  702. 


Townley  v.  Oibson  aad  Ofhen. 

2  Term  Reports,  701-707  (1  B.  B.  600). 

Indosure  Act,  —  Eeservaiion  of  SeignioneSy  dtc,  —  No  reservation  of  Mines. 

Where  by  the  terms  of  an  Indosure  Act,  for  inclosing  the  wastes  of  a  [701] 
manor,  a  certain  portion  was  to  be  allotted  to  the  lord  in  lieu  of  his  right  and 
interest  in  the  soil,  and  the  residue  was  to  be  allotted  to  the  several  tenants  in  fee, 
discharged  from  all  customary  tenures,  &c. ;  a  saving  clause,  reserving  to  the  lord 
all  seigniories  incident  to  the  manor,  and  all  rents,  fines,  services,  &c.,  and  all 
other  royalties  and  manorial  jurisdictions  whatever,  will  not  reserve  mines  under 
the  allotments  made  to  the  tenants,  though  it  appear  there  was  a  subsisting  lease 
of  such  mines  at  the  time  the  Act  passed,  granted  by  the  lord  of  the  manor. 

This  cause  was  tried  at  the  last  Laocaster  Assizes  before  Thom- 
son, B.  ;  when  the  jury  found  a  verdict  for  the  plaintiff,  subject  to 
the  opinion  of  this  Court  on  the  following  case.  The  plaintiff  at 
the  time  of  the  trespass  was  in  the  possession  of  the  closes  in 
which  and  uQder  which  the  mines  in  question  are ;  which  closes 
were  formerly  part  of  the  waste  lands  of  the  manor  of  Yealand,  in 
the  county  of  Lancaster,  and  were  allotted  to  the  plaintiff's 
ancestor,  George  Townley,  by  the  award  made  under  an  Act  of 
the  17  Geo.  III. ,  c.  79,  for  inclosing  the  waste  lands ;  and  Mrs. 
Sarah  Gibson,  under  whom  the  defendants  derive  title,  was  at  the 
time  of  passing  that  Act  seised  in  her  demesne  as  of  fee  of  the  said 
manor  of  Yealands,  and  of  all  the  waste  lands  lying  within  the 
manor,  subject  to  certain  rights  of  common.  Many  tenements 
within  the  manor  were  formerly  enfranchised  by  Eobert  Gibson, 
deceased ;  but  there  are  nine  customary  tenements  still  remaining 
unenfranchised,  lying  dispersedly  in  different  parts  of  the 
manor,  and  containing  in  *  the  whole  about  three  or  four  [*  702] 
acres  of  land.  The  case  then  set  out  several  leases  re- 
serving rent,  made  by  former  lords,  of  the  wastes,  and  the  mines 
and  the  minerals  thereunder;  the  last  of  these  by  which  the 
mines  only  were  demised  was  granted  on  28th  Feb.,  1757,  to  hold 
from  the  25th  of  the  ensuing  March  for  21  years.  Upon  the  grant- 
ing of  the  last-mentioned  lease  to  one  Tissington,  the  mines  were 
worked,  and  continued  to  be  so  till  some  time  in  the  year  1759; 
but  from  that  period  the  lessee  discontinued  the  works.  In  the 
year  1777  an  Act  of  Parliament,  entitled  "  An  Act  for  dividing  and 
inclosing  the  common  and  waste  grounds,  and  certain  common 


478  MINES  AND  MINERALS. 

Ho.  7.—  Tdwnley  v.  Gibion,  2  T.  B.  702»  708. 

fields,  and  also  two  mosses  called  Waitham-moss  and  Hilderstone- 
moss,  within  the  manor  of  Yealands,  in  the  parish  of  Warton, 
and  county  palatine  of  Lancaster, "  was  obtained  for  inclosing  the 
waste  lands,  &c.,  within  the  said  manor  of  Yealands,  upon  the 
terms  and  under  the  provisions  therein  set  forth;  which  Act, 
amongst  other  things,  contains  the  following  clauses,  xiz. ,  *  That 
the  commissioners  shall  set  out,  allot,  and  assign,  unto  the  said 
Sarah  Gibson  20  statute  acres  of  the  said  common  and  waste 
grounds,  in  lieu  of  and  as  a  compensation  for  her  right  and  interest 
in  and  to  the  soil  of  the  residue  of  the  said  common  and  waste 
grounds  respectively.  And  then  the  said  commissioners  shall 
allot  and  assign  the  residue  of  the  said  common  and  waste 
grounds  imto,  for,  and  amongst,  the  said  Sarah  Gibson,  for  and 
on  account  of  her  messuages,  tenements,  lands,  and  hereditaments, 
within  the  said  manor,  in  respect  whereof  she  is  entitled  to  right 
of  common  upon  the  same  common  and  waste  grounds,  and  the 
said  (Jeorge  Townley,  Greorge  Gray,  and  the  several  other  persons, 
and  bodies  politic  and  corporate,  having  right  of  common  or  other 
right,  interest,  property,  or  privilege,  thereon,  and  to  her  heirs, 
assigns,  and  successors  respectively,  forever,  according  and  in  pro- 
portion to  their  several  and  respective  rights,  &c. "  A  subsequent 
clause  directed  that  "  all  and  every  the  allotments,  &c. ,  to  be 
made  under  the  Act,  should  be  vested  in  fee  simple  in  the  several 
and  respective  persons,  &c. ,  to  whom  the  same  should  be  set  out 
or  allotted,  and  their  heirs,  assigns,  and  successors  respectively, 
for  ever,  absolutely  freed  and  discharged  of  and  from  all  custom- 
ary tenures,  rents,  fines,  boons,  and  services  whatsoever;  and  that 
the   several  shares  or  allotments,  so  to  be  set  out  as  aforesaid, 

should  be  in  lieu  of  and  in  full  compensation  and  satisfac- 
[*  703]   tion  *for  all  rights  of  common,  and  other  former  property, 

privilege,  right,  &c. ,  and  that  all  right  of  common,  together 
with  all  former  rights,  interests,  profits,  &c.,  in  and  upon  the 
same,  should  from  and  immediately  after  that  time  cease,  and  be 
forever  barred  and  extinguished;  provided  always,  and  it  was 
further  enacted,  that  nothing  in  that  Act  contained  should  extend 
to  prejudice,  lessen,  or  defeat  the  right,  title,  or  interest,  of  the 
said  lady  of  the  said  manor,  her  heirs  or  assigns,  of,  in,  or  to  the 
seigniories  incident  or  belonging  to  the  said  manor ;  but  that  she 
and  they  and  every  of  them  should  and  might  at  all  times  there- 
after hold  and  enjoy  all  rents,  fines,  services,  courts,  perquisites, 


B.  C.  VOL.  XVn.]  SECT.  L  —  MINERAL  PROPERTY.  479 

Ho.  7.  —  Townley  y.  QibMm,  8  T.  B.  708,  704. 

and  profits  of  courts,  goods,  and  chattels,  of  felons  and  fugitives, 
felons  of  themselves  and  put  in  exigent,  deodands,  waifs,  estrays, 
forfeitures,  and  all  other  royalties  and  manorial  jurisdictions  what- 
soever, in  and  upon  the  said  common  and  waste  grounds,  thereby 
intended  to  be  inclosed  as  aforesaid,  to  the  said  manor,  or  the  lord 
or  the  lady  thereof  for  the  time  being,  incident,  appendant,  belong- 
ing, or  appertaining,  and  the  same  in  as  full,  ample,  and  beneficial 
manner,  to  all  intents  and  purposes,  as  she  or  they  might  or  could 
have  held  and  enjoyed  the  same  in  case  this  Act  had  not  been 
made.  *  At  the  time  of  passing  the  Act,  the  term  in  Tissington'a 
lease  was  unexpired.  Allotments  were  also  made  to  the  said 
Sarah  Gibson  in  pursuance  of  the  said  Act 

Ainsley  for  the  plaintiff.  —  The  question  is.  Whether  the  lord  of 
the  manor  be  entitled  to  the  mines  under  the  clause  of  reservation 
in  the  Act  allotting  the  inclosures  to  the  several  tenants  of  the 
manor.  That  part  of  the  case  which  sets  out  the  leases  only  goes 
to  prove  that  the  defendant's  ancestors  were  lords  of  the  manor, 
and  that  they  were  entitled  to  the  soil  in  the  wastes  before  the 
passing  of  the  Act.  But  by  the  first  clause  it  appears  that  the 
commissioners  were  to  set  out  16  acres  to  the  lady  of  the  manor, 
in  lieu  of  and  as  a  compensation  for  her  right  and  interest  in  the 
soil  of  the  residue  of  the  waste  grounds :  and  on  the  other  hand, 
all  the  allotments  to  the  several  tenants  are  to  be  in  fee;  which 
the  Act  declares  shall  be  a  full  compensation  for  all  rights  of 
common,  and  other  former  property,  privilege,  right,  title,  interest, 
claim,  and  demand  whatsoever.  If  the  Act  had  stopped  here, 
there  could  have  been  no  doubt  but  that  the  lady  of  the  manor 
would  have  had  no  right  whatever  to  the  mines  in  these 
allotments.  *  But  if  the  clause  of  reservation  entitled  her  [*  704] 
to  them,  and  a  right  still  remained  in  her  of  digging  in 
those  inclosures  without  making  any  allowance  for  the  injury 
sustained  by  the  owner  of  the  soil,  all  the  purposes  of  the  Act 
would  be  defeated.  It  will  be  argued  from  this  latter  clause,  that 
the  intention  of  the  parties  is  apparent  that  the  mines  were  to  be 
reserved  to  the  lady  of  the  manor;  but  upon  examination  the 
operation  of  that  clause  will  be  found  to  be  very  different,  for  it 
only  provides  that  she  shall  suffer  no  prejudice  as  to  her  right  to  all 
seigniories  incident  to  the  manor,  and  that  she  shall  still  enjoy  all 
rents,  fines,  services,  &c. ,  and  other  royalties  and  manorial  juris- 
dictions ;  but  there  is  nothing  in  that  clause  which  has  the  least 


480  MINES  AND  MINERALS. 


Ho.  7. — Townloy  v.  Qibfoa,  2  T.  B.  704,  705. 


reference  to  the  soil  of  the  manor ;  and  the  particular  enumeration 
of  the  several  things  intended  is  decisive  that  mines  were  not 
intended  to  be  reserved,  otherwise  they  would  have  been  men- 
tioned. The  word  "  seigniories  "  in  the  former  part  of  the  clause  is 
explained  and  defined  by  the  words  which  follow,  and  can  only 
mean  things  of  the  same  nature  as  those  mentioned. 

Topping,  contra,  —  This  being  a  private  Act,  passed  at  the  requi- 
sition of  the  parties  concerned,  is  to  be  construed  like  all  other 
private  agreements ;  and  consequently  the  Court  will  consider  the 
probable  intention  of  the  parties,  to  be  collected  from  the  situa- 
tion and  state  of  their  several  rights,  at  the  time  when  the  Act 
passed.  The  ancestor  of  the  defendant  was  the  lady  of  the  manor 
in  which  these  copyhold  tenements  are,  and  therefore,  as  such,  she 
would  have  been  entitled  not  only  to  the  mines  under  the  wastes, 
but  also  under  the  copyhold  inclosures,  unless  there  had  been  some 
custom  to  exclude  her.  The  right  in  these  mines  too  existed  in 
the  lady  separate  from  the  interest  in  the  soil,  as  appears  from  the 
leases  of  the  mines  stated  in  the  case ;  which  show  that  the  right 
of  digging  for  mines  was  in  fact  exercised  by  the  lords  of  the 
manor  from  1714  to  1757,  and  during  the  continuance  of  the  latter 
of  these  leases  the  Act  in  question  passed.  He  admitted  that  the 
words  in  the  first  clause  were  large  enough  to  comprehend  mines, 
if  such  had  been  the  intention  of  the  parties ;  but  that  could  not 
have  been  so  intended,  for  then  the  subsisting  lease  would  have 
been  afifected,  and  the  rents  thereby  reserved,  which  certainly  could 
not  have  been  intended,  inasmuch  as  they  are  reserved  expressly 

by  the  word  **  rents  "  in  the  saving  clause ;  there  being  no 
[*  705]  other  rents  stated  in  the  case  to  *  which  that  word  can 

relate.  In  Kaye  v.  Laxon  and  others,  1  Bro.  Ch.  Cas.  76, 
a  bequest  of  leasehold  ground  rents  was  held  to  pass  the  ground 
itself  out  of  which  the  rents  issued.  So  here,  there  being  a  reser- 
vation of  rents  to  the  lord,  the  right  to  the  mines  themselves  out 
of  which  the  rents  issued  will  be  also  reserved  to  him.  Besides, 
there  are  other  words  in  the  saving  clause  which  are  suiBBciently 
comprehensive  to  reserve  this  right  of  digging  for  mines,  such  as 
"  seigniories  "  and  "  royalties. " —  If,  therefore,  the  mines  had  been 
intended  to  be  taken  out  of  the  lord,  there  should  have  been  express 
words  for  that  purpose. 

Ainsley,  in  reply,  was  stopped  by  the  Court 

Lord  Kenton,  Ch.  J.  —  I  agree  that  private  Acts  of  Parliament 


B.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PROPERTY.  481 

Ho.  7.  —  Townley  v.  Gibion,  8  T.  B.  705,  706. 

are  to  be  construed  according  to  the  intention  of  the  parties,  but 
then  that  intention  must  be  collected  from  the  words  used  by 
the  Legislature,  without  doing  violence  to  their  natural  meaning. 
The  defendant's  counsel  has  supposed  that  mines  are  a  distinct 
right  from  the  right  to  the  soil :  but  I  do  not  think  so,  where  they 
are  under  the  land  of  the  lord  of  the  manor.  In  cases  of  copy- 
holds, a  lord  may  have  a  right  under  the  soil  of  the  copyholder : 
but  where  the  soil  is  in  the  lord,  all  is  resolvable  into  the  owner- 
ship of  the  soil;  and  a  grant  of  the  soil  will  pass  everything 
under  it  The  only  word,  in  the  saving  clause,  which  afifords  any 
ground  for  argument,  is  the  word  "  rents ; '  but  when  we  see  how 
that  word  is  used  with  the  others  in  that  part  of  the  Act,  it  can- 
not be  taken  to  include  mines.  At  the  time  of  passing  this  Act  of 
Parliament,  the  mines  under  the  waste  ground  were  in  the  lady  of 
the  manor  as  part  of  the  demesnes ;  she  intended  to  give  up  several 
rights  to  the  tenants,  for  which  she  has  reserved  a  satisfaction. 
Then  how  do  the  tenants  hold  their  allotments  under  the  Act? 
They  could  not  take  as  copyholders,  unless  the  Act  of  Parliament 
had  so  directed :  but  they  take  their  allotments  as  freehold  estates 
of  inheritance.  It  is  extremely  clear  that  no  new  tenure  can  be 
created,  unless  by  the  authority  of  Parliament,  since  the  statute 
of  quia  emptores,  11  Ed.  I,  c.  1,  nor  can  any  person  reserve  to 
himself  a  right  of  escheat.  Then  it  was  urged  by  the  defendant's 
counsel  that  the  Act  of  Parliament  could  not  aflfect  the  lease  which 
was  in  existence  when  it  passed;  it  certainly  would  not;  neither 
would  it  have  been  affected  if  the  lady  had  sold  her  estate  in  the 
manor,  but  the  alienee  would  have  become  the  land- 
lord, and  entitled  to  *  the  beneficial  interest  reserved  by  [*  706] 
the  lease;  so  here  the  lease  will  remain  valid,  but  the 
right  to  the  rents  of  the  mines  will  pass  to  the  person  in  whose 
favour  the  allotment  was  made  under  the  Act  For  we  cannot 
narrow  the  words  of  this  Act,  and  that  transfers  all  the  right  in 
the  soil  to  the  several  tenants.  There  is  no  doubt  but  that  the 
mines  might  have  been  reserved.  If  it  had  been  so  intended,  it 
would  have  been  by  express  words ;  but  there  is  no  such  reserva- 
tion here.  The  word  "  rents  "  is  explained  by  the  other  words 
used;  but  those  rights  which  are  reserved  are  mere  badges  of 
royalty,  incorporeal  rights,  and  other  fruits  of  tenure  of  the  like 
sort 

AsHUUKSTy  J.  —  It  does  not  appear  to  me  that  mines  were  in- 

VOL.  XVII.  —  81 


482  MINES   AND   MINERALS. 


Ho.  7.  —  TOwnley  v.  Gibwm,  2  T.  B.  706,  707. 


tended  to  be  reserved  to  the  lady  of  the  manor.  The  object  of  an 
enclosure  is,  that  the  lord  of  the  manor  in  respect  of  his  seigniory 
and  waste  should  have  some  part  of  the  ground  to  be  allotted  to 
himself  in  lieu  of  his  manorial  rights;  and  the  other  lands  are 
allotted  to  the  proprietors  of  the  enclosed  lands  within  the  manor ; 
and  these  are  not  made  copyholds,  but  the  grantees  take  them  as 
freeholds  of  inheritance.  Therefore,  primd  facie,  they  are  entitled 
to  all  mines,  &c. ,  belonging  to  the  land.  Then  what  is  there  in 
this  case  to  take  them  out  of  the  grantees,  and  vest  them  in  the 
lord  ?  The  saving  clause  only  amounts  to  what,  perhaps,  the  law 
would  otherwise  have  reserved  without  such  a  clause;  for  as  the 
rights  reserved  are  of  an  incorporeal  nature,  they  would  still  have 
remained  in  the  lady,  because  there  is  nothing  in  the  Act  to 
divest  her ;  but  they  have  nothing  to  do  with  the  soil  or  freehold 
in  which  mines  are  included. 

BuLLEB,  J.  —  The  general  object  of  this  enclosure  Act  was  to 
extinguish  all  the  antecedent  rights  of  the  several  parties  inter- 
ested, and  to  create  others  in  lieu  of  them;  in  doing  which  it  was 
thought  right  to  make  particular  exceptions.  Now  when  the 
Legislature  have  made  some  exceptions,  we  cannot  imply  others 
which  they  have  not  made.  As  to  the  lease  which  did  not  expire 
till  a  year  after  the  Act  passed,  it  probably  was  not  thought  of  by 
either  party  at  the  time;  the  mine  had  not  been  worked  since  the 
year  1759 ;  it  was  perhaps,  therefore,  abandoned,  and  not  thought 
to  be  of  any  value  for  the  short  remainder  of  the  term.  However, 
the  Court  cannot  carry  the  exception  beyond  the  words  of  the  Act, 
and  all  the  reservations  are  of  incorporeal  rights.     By  the  general 

words  the  soil  passed  by  the  allotments  to  the  several  pro- 
[*  707]   prietors,  and  mines  are  considered  *  as  part  of  the  soil.     I 

do  not  agree  with  the  defendant's  counsel,  that  the  lord 
may,  unless  restrained  by  custom,  dig  for  mines  on  the  copy- 
holder's lands :  but  it  is  not  necessary  to  consider  that  question 
here. 

Grose,  J.  —  It  is  extremely  dangerous  to  construe  either  deeds 
or  Acts  of  Parliament  according  to  supposition.  The  question 
here  is.  Whether,  under  this  Act  of  Parliament,  the  mines  passed 
to  the  tenants?  The  soil  undoubtedly  passed;  now  what  are  the 
mines  but  pa»t  of  the  soil?  And  everything  which  was  intended 
to  be  reserved  to  the  lady  of  the  manor  is  expressed;  and  all 
those  rights  are  incorporeal  hereditaments,  and  not  like  mines. 


B.  a  VOL,  XVIL]  8ECJT.  L  — MINERAL  PROPEBTY.  483 

Ho.  7.  —  Tdwnley  v.  Gibton,  2  T.  B.  707.  —  Hotes. 

Then  not  only  the  general  words  under  which  the  allotments  were 
made  are  large  enough  to  carry  mines,  but  the  subsequent  excep- 
tion is  not  broad  enough  to  save  them.  At  the  same  time  it  is 
rather  extraordinary  that  so  valuable  a  part  of  the  property  as 
mines  should  not  have  been  expressly  reserved  to  the  lady  of  the 
manor,  if  it  had  been  so  intended.  Postea  to  the  'plaintiff. 

ENGLISH  NOTES. 

In  the  case  of  Wakefield  v.  Buccleuch  (1870),  L.  E.  4  H.  L.  377,  39 
L.  J.  Ch.  441  (appeal  from  Duke  of  Buccleuch  y.  Wakefield),  there  was, 
under  the  Inclosure  Act  in  question,  an  express  reservation  to  the  lady 
of  the  manor  (the  respondent's  predecessor)  of  the  mines  and  minerals 
under  the  waste;  and,  having  regard  to  this  reservation,  it  was  held 
that  the  commissioners  bad  no  power  to  make  an  allotment  to  any  other 
person  so  as  to  include  the  minerals.  The  reservation  to  the  lord,  under 
the  Act,  of  the  mines  and  minerals  was  accompanied  by  express  and 
particular  powers  as  follows:  ''with  full  and  free  liberty,  power,  and 
authority  to  and  for  the  said  duchess,  and  the  person  or  persons,  for  the 
time  being  so  entitled  as  aforesaid,  and  all  persons  licensed  or  authorised 
by  her  or  them  from  time  to  time,  and  at  all  times  for  ever  hereafter, 
and  in  all  seasons  of  the  year,  to  enter  into  and  upon  the  said  lands 
hereby  to  be  directed  to  be  divided  and  enclosed  as  aforesaid,  or  into 
and  upon  any  of  them,  or  any  part  or  parts  thereof,  other  than  and  ex- 
cept  such  part  or  parts  thereof  as  may  be  so  set  out  for  a  stone  quarry 
or  stone  quarries  and  watering  places  for  such  purposes  as  aforesaid, . 
to  search,  bore,  and  dig  for  coal,  lead,  copper,  tin,  ironstone,  and  all 
other  mines  and  minerals  whatsoever,  and  to  sink  shafts  and  open  veins 
or  quarries  in  or  upon  the  said  lands,  or  in  or  upon  any  part  or  parts 
thereof  (except  as  last  aforesaid),  and  to  land  such  coal,  lead,  copper, 
tin,  ironstone,  slate  flags,  and  other  minerals  to  be  so  gotten  as  afore* 
said,  and  to  lay  and  deposit  the  same  on  the  said  lands  or  grounds, 
and  to  continue  the  same  thereon  so  long  as  she,  they,  or  any  of  them 
shall  think  proper.''  There  were  further  powers  to  make  cuts  and 
sluices,  to  build  smelting-bouses  and  other  buildings,  &c. ;  and  then 
follow  the  words:  ''in  as  full  and  ample  a  manner  and  to  all  intents 
and  purposes  as  could  and  might  have  been  done  if  the  said  lands  had 
remained  unenclosed  as  if  thb  Act  had  not  been  passed,  without  any 
interruptions  whatsoever,  yet  nevertheless  making  reasonable  compen- 
sation for  damages  done  by  such  works  as  aforesaid  to  the  person  or 
persons  sustaining  the  damage."  The  learned  Lords  present  (Lord 
Hatherley,  L.  C,  Lord  Chelmsford,  and  Lord  Colonsay)  held  that, 
the  special  powers  going,  as  they  did,  beyond  everything  that  the  lord 


484  MINES   AND   MINERALS. 

Vo.  7.  — Tdwnley  v.  Oibton.  —  Hotet. 

could  have  dooe  in  absence  of  these  powers,  the  clause  must  be  con- 
strued as  in  effect  a  grant  and  not  a  mere  reservation;  and  that  the 
powers  were  not,  by  the  last  words  of  the  clause,  restricted  to  things 
that  the  lord  might  have  done  before  the  Act.  The  result  was  to  hold 
that  the  reservation  conferred  on  the  lord  an  unlimited  right  to  spoil 
the  surface  upon  making  compensation. 

A  question  as  to  the  presumptive  ownership  of  the  soil  in  a  portion 
of  the  bed  of  the  river  Eden  was  the  subject  of  contention  in  the  case  of 
Ecroyd  v.  Coulthard,  1897,  2  Ch.  554,  66  L.  J.  Ch.  751.  It  was 
proved  that  the  title  to  a  several  fishery  in  the  river  and  to  the  soil  in 
the  bed  of  the  river  itsque  ad  medium  filum  aquce  was  vested  in  suc- 
cessive Earls  of  Carlisle.  By  an  award  under  an  Inclosure  Act  of  1796 
an  allotment  was  made,  by  measurement,  of  certain  waste  land  of  the 
manor  of  which  the  Earl  of  Carlisle  was  lord,  adjoining  the  bed  of  the 
river  in  question;  and  under  this  award  the  defendants  claimed 
the  right  to  the  soil  of  the  bed  of  the  river  in  question  usque  ad 
medium  filum  aqtue.  In  1890  the  Earl  of  Carlisle  conveyed  the 
several  fishery  to  the  plaintiff  without  mention  of  the  bed  of  the  river; 
and,  as  the  conveyance  included  the  bed  of  the  river  in  other  places, 
and  since  the  particulars  of  sale  had  expressly  excluded  this  part  of 
the  bed  of  the  river,  it  was  held  that  any  presumption  of  intention  to 
include  this  part  of  the  bed  of  the  river  in  this  grant  of  several  fishery 
was  excluded.  The  question  then  came  to  be  whether  the  defendants 
could  establish  their  title  to  this  part  of  the  bed  of  the  river.  The 
learned  Judge  (Korth,  J.)  held  that  they  could  not ;  first,  because  the 
•  allotment,  being  by  measurement  according  to  the  terms  of  the  Inclo- 
sure Act,  could  not  be  presumed  to  include  this  extra  quantity  of  land; 
and,  secondly,  because  the  bed  of  the  river  appeared  by  the  evidence 
never  to  have  been  waste  of  the  manor,  but  included  in  the  demesne 
land  of  the  lords  (the  Earls  of  Carlisle).  The  title  to  this  part  of  the 
bed  of  the  river  was  therefore  not  in  either  of  the  parties  to  the  action, 
but  remained  vested  in  the  Earl  of  Carlisle. 


IL  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  485 

Ho.  8.  —  Loxd  Frovoft  and  Magistrates  of  Glasgow  v.  Farie,  18  App.  Gas.  667. 


No.  8.  — LOED  PEOVOST  AND  MAGISTEATES  OF 
GLASGOW  V.  FAEIE. 

(H.  L.  So.  1887.) 

No.  9.  — MIDLAND  EAILWAY  CO.  v.  EOBINSON. 
(H.  L.  1889.) 

RULE. 

The  words  "mines  of  coal,  ironstone,  slate,  or  other 
minerals'*  excepted  from  the  lands  taken  by  a  Eailway 
Company  in  accordance  with  the  Railways  Clauses  Con- 
solidation Act,  1845,  have  been  interpreted  as  extending  to 
minerals  which  are  ordinarily  got  by  quarrying,  but  not 
to  include  a  stratum  of  clay  which  forms  the  immediate 
subsoil. 

Lord  Provost  and  Magistrates  of  Olasgow  v.  Farie. 

18  App.  Cas,  657-699  (s.  c.  58  L.  J.  P.  C.  33;  60  L.  T.  274 ;  37  W.  R.  627). 

Mines  and  other  Minerals,  —  Compulsory  Purchase  of  Surface.  —  Whether  [657] 
Clay  is  included  in  "  OtJier  Minerals^  —  Waterworks  Clauses  Act, 
1847  (10  <^  11  Via.,c.  17). 

The  18th  section  of  the  Waterworks  Clauses  Act,  1847  (10  &  11  Vict.,  c.  17), 
provides  that  ''the  undertakers  shall  not  be  entitled  to  any  mines  of  coal,  iron- 
stone, slate,  or  other  minerals  under  any  land  purchased  by  them.''  The  appel- 
lants, by  virtue  of  the  Act  and  a  conveyance  containing  a  reservation  of  the 
"whole  coal  and  other  minerals  in  the  land  in  terms  of  the  Waterworks  Clauses 
Act,  1847,''  purchased  from  the  respondent  a  parcel  of  land  for  the  purpose  of 
erecting  waterworks.  Under  the  land  was  a  seam  of  valuable  brick  clay.  The 
respondent  worked  this  clay  in  the  adjoining  land,  and  having  reached  the  ap- 
pellants' boundary,  claimed  the  right  to  work  out  the  clay  under  the  land  pur- 
chased by  the  appellants. 

Held,  reversing  the  decision  of  the  Court  of  Session  (14  Court  Sess.  Cas.,  4th 
Series,  846)  (Lord  Herschell  dissenting),  that  common  clay,  forming  the  sur- 
face or  subsoil  of  land,  was  not  included  in  the  reservation  in  the  Act,  and  that 
the  appellants  were  entitled  to  an  interdict  restraining  the  respondent  from 
working  the  clay  under  the  land  purchased  by  them. 

Appeal  from  the  First  Division  of  the  Court  of  Session, 
Scotland. 


486  MINES  AND  MINERALS. 


Ho.  8.  — Lord  Provoft  and  lUgistrates  of  Glaagow  v.  Farie,  18  App.  Cat.  667-869. 

The  Lord  Provost  and  Magistrates  of  Glasgow,  the  appellants, 
raised  this  action  against  Allan  Farie,  the  respondent,  and  propri- 
etor of  the  lands  of  Westthom,  near  Glasgow,  for  declarator  and 
interdict  that  they,  as  commissioners  appointed  by  and  acting 
under  the  Glasgow  Corporation  Waterworks  Act  of  1855,  and  Acts 
explaining  and  amending  the  same,  are  heritable  proprietors  of 
two  pieces  of  ground  extending  to  about  twenty-one  acres,  part  of 
the  lands  of  Westthom,  disponed  to  them  by  the  respondent's 

predecessor. 
[*658]       *The  question  raised  by  the  action  was  whether  the 
appellants  were  the  proprietors  of  a  valuable  seam  of  clay 
forming  the   subsoil  of   these  twenty-one  acres,  and  entitled  to 
prevent  the  respondent  from  working  out  the  same. 

The  appellants'  special  Act  incorporated  the  Waterworks 
Clauses  Act,  1847  (10  &  11  Vict,  c.  17),  and  the  Lands  Clauses 
Consolidation  (Scotland)  Act.  1845  (8  &  9  Vict.,  c.  19). 

By  disposition  dated  the  16th  of  February,  and  recorded  the 
2nd  of  March,  1871,  the  respondent's  predecessor  in  the  lands, 
the  late  James  Farie,  of  Farme  and  Westthom,  sold  to  the  appel- 
lants, in  consideration  of  the  sum  of  £11,000,  as  the  agreed-on 
price  or  value  of  the  lands  therein  disponed,  two  pieces  of  ground, 
described  as  follows :  In  the  first  place,  "  All  and  whole  that  piece 
of  ground  lying  within  the  barony  parish  of  Glasgow;"  then 
follow  the  measurement  and  boundaries.  In  the  second  place, 
**  All  and  whole  that  strip  or  piece  of  ground, "  &c. ,  "  which  two 
pieces  of  ground  extend  together  to  "  nearly  twenty-one  acres,  and 
are  delineated  on  a  plan  subscribed  by  the  said  James  Farie,  as 
relative  to  the  said  disposition.  The  disposition  contained  this 
reservation,  *'  excepting  always,  and  reserving  to  me  and  my  fore- 
saids, the  whole  coal  and  other  minerals  in  said  lands  in  terms  of 
the  clauses  relating  to  mines  in  the  Waterworks  Clauses  Act, 
1847." 

In  March,  1885,  the  respondent  had  worked  the  seam  of  clay  to 
within  thirty  feet  of  the  boundary  of  the  appellants'  land,  and 
intimated  to  them  that,  in  virtue  of  the  reservation  in  the  convey- 
ance and  the  18th  section  of  the  Waterworks  Clauses  Act,^  he  was 
desirous  of  working  the  seam  of  clay  under  the  ground 
[*659]   *  acquired  by  the  appellants,  and  called  upon  them  to 

I  The  section  is  printed  in  Lord  Hbrsohell's  opinion,  p.  498  post. 


E.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PKOPERTY.  487 

Ho.  8.  —  Loxd  Provoit  and  lUgistrateB  of  Glasgow  v.  Farie,  18  App.  Caa.  659-689. 

state  whether  they  would  avail  themselves  of  their  right  to  pre- 
vent his  working  the  seam  by  making  compensation. 

The  appellants  maintained  that  the  seam  of  clay  was  included 
in  their  purchase  and  did  not  fall  within  the  terms  of  the  clause 
of  reservation,  and  raised  this  action.  The  respondents  maintained 
that  the  clay  did  fall  within  the  reservation  in  the  disposition, 
and  the  statute. 

The  Lord  Ordinary  (Lord  McLareny)  decided  in  favour  [662] 
of  the  appellants  by  interlocutor  dated  the  16th  of  Decem- 
ber, 1885 ;  but  this  decision  was  reversed  by  the  Judges  of  the 
First  Division  (the  Lord  President  (Inglis),  Lord  Shand,  and 
Lord  Adam)  by  interlocutor  dated  the  21st  of  January,  1887  (Lord 
Mure  dissenting). 

On  appeal,  the  question  having  been  argued  by  Sir  R  E.  Web- 
ster, A.  G.,  and  Balfour  Brown,  Q.  C,  for  the  appellants;  and 
by  Sir  Horace  Davey,  Q.  C,  and  E.  W.  Byrne,  for  the  re- 
spondent :  — 

Judgment  after  consideration.  [668] 

Lord  Halsbury,  L.  C.  :  — 

My  Lords,  I  cannot  conceal  from  myself  the  importance  and  the 
difiSculty  of  the  question  involved  in  this  case.  The  con- 
sequences *  flowing  from  a  decision  either  way  seem  to  me  [*  669] 
to  be  very  grave,  and  I  desire,  therefore,  to  say  at  the  out- 
set that  I  wish  to  decide  nothing  but  what  is  necessarily  involved 
in  the  particular  case  now  before  your  Lordships.  That  question 
may  be  very  summarily  stated  as  to  whether  clay  is  included  in 
the  reservation  of  mines  and  minerals  under  the  Waterworks 
Clauses  Act,  1847. 

I  cannot  help  thinking  that  the  true  test  of  what  are  mines  and 
minerals  in  a  grant  was  suggested  by  James,  L  J.,  in  the  case 
of  Hext  V.  GUI,  L.  R  7  Ch.,  at  p.  719  (p.  447,  ante),  which  I 
shall  have  occasion  hereafter  to  refer  to,  and  although  the  Lord 
Justice  held  himself  bound  by  authority  so  that  he  yielded  to 
the  technical  sense  which  had  been  attributed  to  those  words 
I  still  think  (to  use  his  language)  that  a  grant  of  "  mines  and 
minerals  *  is  a  question  of  fact  "  what  these  words  meant 
in  the  vernacular  of  the  mining  world,  the  commercial  world, 
and  landowners,"  at  the  time  when  they  were  used  in  the 
instrument. 

I  will  not  at  present  say  how  far  I  think  we  are  bound  by 


488  MINES  AND  MINERALS. 


Ho.  8.  —  Lord  Provost  and  MagistratoB  of  Glasgow  v.  Farie,  18  App.  Cas.  609,  670. 

authority,  because,  as  I  have  already  intimated,  I  desire  to  keep 
myself  entirely  free  if  the  question  should  arise  in  this  House  with 
respect  to  any  other  statute,  or  with  respect  to  any  grant  not  con- 
trolled by  the  statute  in  question  in  which  the  words  "  mines  and 
minerals"  occur. 

It  may  be  that  I  am  influenced  by  the  considerations  to  which 
WiCKENS,  V.  C,  referred,  Hextv.  GUI,  L.  R  7  Ch.,  note,  at  p. 
705  (p.  434,  ante),  when  he  said  that  it  might  be  thought  that 
some  inclination  had  arisen  ''  on  the  part  of  Judges,  to  give  more 
weight  than  ought  to  have  been  attributed  to  some  small  circum- 
stances of  context "  in  order  to  cut  down  the  proper  and  ordinary 
meaning  of  the  words  **  mines  and  minerals. "  I  think  no  one  can 
doubt  that  if  a  man  had  purchased  a  site  for  his  house  with  a 
reservation  of  mines  and  minerals  neither  he  nor  anybody  else 
would  imagine  that  the  vendor  had  reserved  the  stratum  of  clay 
upon  which  his  house  was  built  under  the  reservation  of  mines 
and  minerals. 

There  is  no  doubt  that  more  accurate  scientific  investigation  of 
the  substances  of  the  earth  and  diflferent  modes  of  extracting  thenj 
have  contributed  to  render  the  sense  of  the  word  "  minerals  '  less 
certain  than  when  it  originally  was  used  in  relation 
[*  670]  *  to  mining  operations.  I  should  think  that  there  could 
be  no  doubt  that  the  word  **  minerals  "  in  old  times  meant 
the  substances  got  by  mining,  and  I  think  mining  in  old  times 
meant  subterranean  excavation.  I  doubt  whether  in  the  present 
state  of  the  authorities  it  is  accurate  to  say  that  in  every  deed  or 
in  every  statute  the  word  **  minerals  "  has  acquired  a  meaning  of 
its  own  independently  of  any  question  as  to  the  manner  in  which 
the  minerals  themselves  are  gotten. 

Mellish,  L.  J.,  in  the  case  to  which  I  have  already  referred, 
sums  up  the  authorities  by  saying,  Hext  v.  Gill,  L.  R  7  Ch. ,  at  p. 
712  (p.  440,  ante),  that  the  word  "  mines  '  (to  use  his  Lordship's 
language)  "  combined  with  the  more  general  word  *  minerals  '  does 
not  restrict  the  meaning  of  the  word  *  minerals  ' ;  '*  and  he  says 
that  the  result  of  the  authorities  appears  to  be  "  that  a  reservation 
of  minerals  includes  every  substance  which  can  be  got  from  under- 
neath the  surface  of  the  earth  for  the  purpose  of  profit,  unless  there 
is  something  in  the  context  or  in  the  nature  of  the  transaction  to 
induce  the  Court  to  give  it  a  more  limited  meaning. "  I  cannot 
myself  assent  to  such  a  definition.     In  the  first  place  it  introduces 


E.  C.  VOL.  XVIL]  sect.  L  —  MINERAL  PROPERTY.  489 

Vo.  8.  —  Lord  Frovoft  and  lUgistrates  of  Glasgow  v.  Farie,  18  App.  Gas.  670,  671. 

as  one  element  the  circumstance  that  the  substance  can  be  got  at 
a  profit  It  is  obvious  to  see  that  if  that  is  an  essential  part 
of  the  definition  the  question  whether  a  particular  substance 
is  or  is  not  a  mineral  may  depend  on  the  state  of  the  market, 
and  it  may  be  that  a  mineral  one  year  is  not  a  mineral  the 
next 

If,  on  the  other  hand,  one  is  to  have  recourse  to  etymology  or 
science,  and  to  disregard  the  mode  of  working  as  reflecting  any 
light  on  the  nature  of  the  substance,  it  is  obvious  to  inquire 
whether  coal  is  a  mineral.  Its  vegetable  origin  would  to  some 
minds  exclude  its  being  regarded  as  a  mineral,  while  the  substance 
kaolin  was  held  by  Wickens,  V.  C. ,  Hext  v.  Gill,  L.  R  ?  Ch. , 
note,  at  p.  705  (p.  434,  aTUe),  to  be  a  mineral.  "  According  to  the 
evidence,  kaolin,  or  china  clay,  is  a  metalliferous  mineral  perfectly 
distinguishable  from  and  much  more  valuable  than  ordinary  agri- 
cultural earth,  and  which  produces  metal  in  a  larger  proportion  to 
its  bulk  as  compared  with  ordinary  ores,  but  which  it  was  not 
commercially  profitable  to  work  in  England  for  the  purpose  of 
extracting  metal  from  it" 

*  My  Lords,  the  diflBculty  of  dealing  with  this  case  is  [*  671] 
not  diminished,  but  rather  increased  by  the  state  of  the 
authorities  upon  the  question.  In  Bennett  v.  Oreat  Western  Hail- 
way  Company,  L  R  2  H.  L.  27,  all  that  was  decided  in  this 
House  was  that  the  common-law  principle  which  would  have  pre- 
vented an  owner  who  had  sold  his  surface  land  to  a  railway  com- 
pany from  defeating  his  grant  by  withdrawing  support  from  the 
surface  land  so  used,  did  not  apply  to  a  state  of  things  created  by 
the  statute  in  which  the  statute  itself  creates  the  distinction  be- 
tween the  surface  owner  and  the  mine  owner,  and  gives  power  to 
the  mine  owner  to  work  his  minerals  unless  the  railway  company 
purchases  or  gives  compensation  to  the  mine  owner  for  leaving  his 
mines  unworked.  In  that  case  it  was  admitted  that  the  word 
*  minerals  "  was  properly  applicable  to  the  substances  to  be  worked, 
and  the  only  question  was  the  application  of  the  common-law 
principle  to  which  I  have  adverted.  But  the  Legislature  must 
have  meant  something  by  the  distinction  which  it  recognises  and 
acts  upon  in  drawing  the  distinction  which,  as  matter  of  business 
and  understanding  in  the  mining  and  commercial  world,  I  think 
every  one  must  be  familiar  with. 

My  Lords,  it  appears  to  me  that  the  effect  of  some  of  the  deci- 


490  MINES  AND  MINERALS. 

Ho.  8.  —  Lord  Proroit  and  Xagiftratei  of  Olaigow  ▼.  Parie,  18  App.  Cm.  671,  67& 

eions  pushed  to  their  logical  consequences  would  be  altogether  to 
efface  the  distinction  which  all  the  statutes  recognise.  One  might 
summarise  these  decisions  and  say  a  mineral  need  not  be  metallic. 
It  need  not  be  subjacent ;  it  need  not  be  worked  by  a  mine ;  it 
need  not  be  in  any  one  particular  distinguished  from  any  part  of 
the  substance  of  the  earth,  using  the  word  *  earth  *  as  applicable 
to  every  portion  of  this  habitable  globe.  Even  the  word  *  organic  " 
must  be  rejected  if  referred  to  some  of  the  substances  which  form 
part  of  the  earth.  The  bones  of  extinct  animals  are  limestone, 
and  as  curiosities  for  research  and  scientific  inquiry  would  find  a 
ready  market,  and  would  therefore  come  within  that  part  of  the 
definition  which  requires  that  they  should  be  capable  of  being 
profitably  worked.     Are  they  minerals  ? 

My  Lords,  I  find  myself  called  upon  to  construe  these  words 
with  reference  to  the  known  usage  of  the  language  employed  in 
distinguishing  proprietary  rights  in  Scotland,  and  hav- 
[*  672]  ing  relation  *  to  Scotch  land  and  Scotch  mines  or  min- 
erals. I  am  not  insensible  to  the  observation  that  this 
is  only  one  of  a  group  of  statutes  which  may  be  supposed  to  have 
had  the  same  object,  and  might  be,  therefore,  assumed  to  use 
the  same  phraseology  in  the  same  sense.  Still  I  am  construing 
the  application  of  general  words  to  a  purchase  under  the  stat- 
utes made  in  Scotland,  and  if  there  be  any  difference  in  the 
law  of  Scotland  from  that  of  England  the  Legislature  must  be 
supposed  to  have  been  familiar  with  it  and  to  have  legislated 
accordingly. 

Now  the  case  is  stated  by  the  Lord  Ordinary  thus :  "  Here  the 
thing  which  the  defender  claims  to  work  is  the  common  clay 
which  constitutes  the  subsoil  of  the  greater  part  of  the  land  of  this 
country,  which  never  can  in  any  locality  be  wrought  by  under- 
ground working,  but,  imder  all  circumstances,  is  only  to  be  won 
by  tearing  up  and  destroying  the  surface  over  the  entire  extent  of 
the  working.  When  such  a  right  is  claimed  against  the  owner  of 
the  surface,  I  ask  myself,  Did  any  one  who  wanted  to  purchase  or 
acquire  a  clay-field,  whether  by  disposition  or  reservation,  ever 
bargain  for  it  under  the  name  of  a  right  of  working  minerals  ?  In 
the  case  of  a  voluntary  sale  of  land  with  reservation  of  minerals, 
I  am  satisfied  that  we  should  not  permit  the  seller  to  work  the 
clay  to  the  destruction  or  injury  of  the  purchaser's  estate,  because 
we  should  hold  that  the  conversion  of  the  estate  into  a  clay-field 


K.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  491 

Ho.  8.  —  Lord  Provoot  and  Xagiftratei  of  Olaigow  ▼.  Farie,  18  App.  Cas.  673,  078. 

was  not  within  the  fair  meaning  of  the  reservation.  That  being 
so,  I  see  no  reason  for  concluding  that  the  statutory  reservation  of 
minerals  means  anything  different  from  a  reservation  of  minerals 
in  a  private  deed.  The  consequences  of  the  reservation  are  differ- 
ent, but  the  thing  to  be  reserved  is  to  my  mind  essentially  the 
same,  being  neither  more  nor  less  than  the  right  to  work  such 
substances  and  strata  as  are  ordinarily  known  by  the  denomina- 
tion of  minerals  in  contracts  between  sellers  and  purchasers,  or 
superiors  and  feuars.  * 

My  Lords,  if  that  is  the  correct  view,  and  I  find  myself  unable 
to  differ  from  it,  I  think  the  case  of  Lord  Breadalhane  v.  Menzies, 
1  Shaw  Ap.  225,  is  a  binding  authority  in  this  House.  There 
the  words  were  "  haill  mines  and  minerals  of  whatsoever  nature  or 
quality, "  and  were  held  not  to  include  a  vein  of  stone  suitable  for 
building. 

*  I  feel  it  impossible  to  resist  the  reasoning  of  Lord  [*  673] 
Mure  ^  in  this  case,  but  I  hold  myself  free  if  the  question 
should  arise  in  England  to  consider  quite  independently  of  this 
decision  what  may  be  the  law  as  applicable  to  an  English  case. 
I  only  regret  that  the  test  which  James,  L  J.,  suggested,  and 
which  I  tiiink  would  have  been  the  true  one,  and  would  have 
satisfied  all  difl&culties,  was  not  adhered  to  in  ffext  v.  Gill,  L  R 
7  Ch. ,  at  p.  719  (p.  447,  ante).  In  that  case,  as  I  have  pointed 
out  before,  the  substance  which  was  called  china  clay  was 
assumed  to  be  metalliferous  ore,  and  it  was  held  that  though  the 
lord  of  the  manor  had  reserved  it  he  could  not  work  it,  because  he 
had  not  also  reserved  a  right  so  to  work  it  at  the  expense  of  the 
surface  owner. 

My  Lords,  I  hesitate  very  much  to  adopt  the  reasoning  of 
that  case,  notwithstanding  the  high  authority  by  which  it  was 
decided. 

I  am  satisfied  with  the  view  so  clearly  put  forward  by  Lord 
MuRE,^  and  upon  the  reasoning  of  that  learned  Lord's  judgment 
I  move  your  Lordships  that  the  interlocutor  appealed  from  be 
reversed. 

Lord  Watson: — 

My  Lords,  the  question  raised  for  decision  in  this  appeal,  which 
is  one  of  general  importance,  has  led  to  differences  of  judicial 

1  14  Conrt  Sess.  Cas.,  4th  Series,  at  p.  354. 


492  MINES  AND   MINERALS. 

Ho.  8.  —  Lord  Frorost  and  Xagiitratei  of  Olaigow  v.  Farie,  18  App.  Cm.  678,  674. 

opinion  in  this  House,  as  well  as  in  the  Court  of  Session.  For 
my  own  part,  I  have  experienced  considerable  difBculty  in  forming 
an  opinion  upon  it,  owing  to  the  very  indefinite  terms  which  the 
Legislature  has  used  to  describe  the  minerals  reserved  by  statute 
to  proprietors  whose  land  is  compulsorily  purchased,  for  the  pur- 
poses of  railway  or  waterworks  undertakings.  The  present  con- 
troversy is  between  a  statutory  body  of  water  commissioners,  and  a 
landowner  who  is  now  asserting  his  right  to  work  out  a  seam  of 
clay  within  a  parcel  of  ground,  about  twenty-one  acres  in  extent, 
which  they  acquired  from  him,  under  compulsory  powers,  in  the 
year  1871 ;  but  the  question  which  your  Lordships  have  to  con- 
sider would,  in  my  opinion,  have  been  precisely  the  same  if  the 
purchasers  had  been  a  railway  company. 

The  Court  below  disposed  of  the  case  without  inquiry 
[*  674]  into  the  *  facts,  and  these  must  consequently  be  gathered 
from  the  statements  made  by  the  parties  on  record,  which 
are,  unfortunately,  in  some  respects,  conflicting.  It  appears,  how- 
ever, and  it  was  assumed  in  the  arguments  addressed  to  us,  that 
the  seam  in  dispute  is  composed  of  ordinary  subsoil  clay,  such  as 
is  generally  found  throughout  the  district :  that  it  lies  at  a  depth 
of  not  more  than  two  or  three  feet  below  the  surface  of  the  soil : 
that  it  is  of  considerable,  but  variable,  thickness,  and  that  it  has 
been  wrought  open  cast  by  the  respondent  in  close  proximity  to  the 
appellants'  land,  where  its  extreme  thickness  has  proved  to  be 
from  twenty  to  thirty  feet  Since  their  acquisition  of  the  ground 
the  appellants  have  constructed  upon  it  two  reservoirs,  each  capa- 
ble of  storing  nearly  4,000,000  gallons  of  water,  which  have  been 
sunk  into,  and  now  rest  upon,  the  clay. 

The  18th  section  of  the  Waterworks  Clauses  Act,  1847,  is  iden- 
tical, mutatis  mutandis,  with  sect.  77  of  the  English,  and  sect.  70 
of  the  Scotch,  Eailways  Clauses  Act  of  1845.  [His  Lordship  read 
the  section.^]  The  Act  of  1847  is  a  British  statute,  whereas  there 
is  separate  railway  legislation  for  England  and  Ireland  on  the  one 
hand  and  Scotland  on  the  other ;  but  it  does  not  appear  to  me  to 
admit  of  doubt  that  the  Legislature  intended  the  words  "  mines  of 
coal,  ironstone,  slate,  or  other  minerals  "  to  have  the  same  mean- 
ing in  all  three  countries. 

In  considering  whether  subsoil  clay,  such  as  we  have  to  deal 

1  The  section  is  printed  in  Lord  Hf.rschell*s  opinion,  p.  498,  post. 


E.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PROPERTY.  493 

Ho.  8.  — Lord  Provoft  and  Xagiitratei  of  Glasgow  ▼.  7arift»  18  App.  Cat.  674,  676. 

with  in  the  present  case,  is  one  of  the  "  other  minerals  "  meant  to 
be  excepted,  I  have  been  unable  to  derive  much  assistance  from 
such  authorities  as  Menzies  v.  £arl  of  Breadalbane,  1  Shaw  Ap. 
225,  in  which  it  was  held  that  the  reservation  by  a  superior,  in  a 
feu-contract,  of  the  **  haill  mines  and  minerals  "  that  might  be 
found  within  the  lands  disponed  in  feu,  did  not  give  him  right 
to  a  freestone  quarry.  Irrespective  of  other  considerations  which 
differentiate  that  case  from  the  present,  there  is  little  analogy 
between  a  reservation  of  minerals  coupled  with  an  obligation  to 
support  the  surface,  and  a  reservation  not  only  of  the  minerals,  but 
of  the  right  to  work  them  without  giving  support.  Nor  have  I 
been  able  to  obtain  much  light  from  Hext  v.  Gill,  L.  R 
7  Ch.  699  (p.  429,  ante),  and  other  English  *  cases  referred  [*  675] 
to  in  the  opinion  of  Lord  Shand,  which  his  Lordship 
seems  to  regard  as  almost  decisive  of  the  present  question.  The 
only  principle  which  I  can  extract  from  these  authorities  is  this ; 
that  in  construing  a  reservation  of  mines  or  minerals,  whether  it 
occur  in  a  private  deed  or  in  an  Inclosuie  Act,  regard  must  be  had, 
not  only  to  the  words  employed  to  describe  the  things  reserved, 
but  to  the  relative  position  of  the  parties  interested,  and  to  the 
substance  of  the  transaction  or  arrangement  which  such  deed  or 
act  embodies.  **  Mines  *  and  "  minerals  "  are  not  definite  terms : 
they  are  susceptible  of  limitation  or  expansion,  according  to  the 
intention  with  which  they  are  used.  In  Memies  v.  JSarl  of  Bread- 
albane.  Lord  Eldon  observed,  (1  Shaw  Ap.  at  p.  228,)  that  the 
reservation  "^  is  not  contained  in  a  lease,  but  in  a  feu ;  and  I  take 
it,  there  is  a  very  great  difference  as  to  the  principles  that  are  to 
be  applied  to  the  construction  of  a  feu  and  a  lease  —  it  is  a  ques- 
tion of  a  very  different  nature.  *  In  Hext  v.  GUI,  L.  R  7  Ch.  699 
(p.  429,  aifUe),  the  controversy,  which  related  to  china  clay, 
worked  for  the  purposes  of  obtaining  the  felspar  which  it  con- 
tained, arose  between  the  lord  of  the  manor  and  the  purchaser 
of  the  freehold  of  a  copyhold  tenement  within  the  manor,  under 
a  contract  which  excepted  "  all  mines  and  minerals, '  and  in  these 
circumstances  it  was  sufficiently  clear  that  the  copyholder  had 
only  right  to  the  surface,  and  had  no  right  to  minerals  of  any 
kind 

I  need  not  refer  in  detail  to  the  provisions  of  the  Waterworks 
and  Eailways  Clauses  Acts  which  follow,  and  are  connected  with 
the  sections  of  these  Acts  already  noticed.     The  relation  which 


494  MINES  AND  MINERAXS. 


Ho.  8.  —  Lord  Provoit  and  Kagiitimtei  of  Olaigow  ▼.  Farie,  18  App.  Cas.  876,  878. 

they  establish  between  seller  and  purchaser  in  regard  to  all 
minerals  which  may  be  held  to  be  excepted,  appears  to  me  to  be, 
as  Lord  Westbury  said  in  Great  Western  Railway  Company  v. 
Bennett,  L.  R  2  H.  L.  42,  clearly  defined,  useful  to  the  railway 
company  or  waterworks  undertakers,  and  at  the  same  time  fair  and 
just  to  the  mine  owner.  The  latter,  who  is  forced  to  part  with 
the  surface  of  his  land  and  all  uses  for  which  it  is  available,  is 
not  compelled  to  sell  his  minerals,  whilst  he  is  not  in  a  position 
to  ascertain  their  marketable  value  or  the  impediments  which 

might  be  occasioned  to  the  convenient  working  of  his 
[*  676]  mineral  field  by  *his  parting  with  a  strip  which  intersects 

it  On  the  other  hand  those  who  deprive  him  of  the  right 
to  a  portion  of  the  surface  and  its  uses  by  compulsory  purchase 
enjoy  the  benefit  of  subjacent  and  adjacent  support  to  their  works 
without  payment  so  long  as  the  minerals  below  or  adjoining  these 
works  remain  undisturbed ;  but  it  is  upon  the  condition  that  if 
they  desire  such  support  to  be  continued  they  must  make  full 
compensation  for  value  and  intersectional  damage  whenever  the 
minerals  required  for  that  purpose  are  approached  in  working,  and 
would  in  due  course  be  wrought  out. 

It  appears  to  me  that  the  policy  of  the  Acts  in  excepting  certain 
minerals  from  conveyances  to  compulsory  takers  of  land,  favours 
a  liberal  and  not  a  limited  construction  of  the  reservation  to  the 
seller.  The  difl&culty  which  I  have  felt  in  construing  their  enact- 
ments is  due  to  the  fact  that  they  do  not  deal  with  "  minerals  "  as 
something  which  may  be  different  from  and  additional  to  "  mines.  * 
They  do  not  except  mines  and  minerals,  but  mines  of  coal,  iron- 
stone, slate,  and  other  minerals ;  that  is  to  say,  they  only  except 
minerals  which  when  worked  will  constitute  "  mines  "  within  the 
meaning  of  sect.  18  of  the  Waterworks  Clauses  Act  of  1847,  and 
of  the  corresponding  sections  of  the  Railways  Clauses  Acts.  It 
therefore  becomes  necessary  to  consider  What  meaning  ought  in 
these  sections  to  be  attributed  to  the  word  "  mine  "  ?  and  also  What 
are  the  "  other  minerals,"  mines  of  which  are  specially  excepted? 
The  solution  of  the  second  of  these  queries  must  necessarily  be 
in  a  great  measure  dependent  upon  the  answer  to  be  given  to  the 
first 

There  is  a  class  of  cases  in  the  English  books  which  determine 
that  the  word  "  mine  *  is,  according  to  its  primary  meaning,  sig- 
nificant merely  of  the  method  of  working  by  which  minerals  are 


B.  C.  VOL.  XVII.]  SECT.  L  —  MINEKAL  PROPERTY.  495 

Ho.  $.  —  LoKd  Provost  and  lUgiftratei  of  COaigow  ▼.  Farie,  18  App.  Cm.  676,  677. 

got ;  but  that  is  not  its  only  or  necessary  meaning.  Shortly  after 
the  passing  of  the  Act  43  Eliz.,  c.  2,  it  was  established  by  a 
series  of  decisions,  the  soundness  of  which  has  been  often  doubted, 
that  occupiers  of  mines  other  than  coal  mines  are  exempted  from 
the  incidence  of  the  poor-rate.  That  point  being  settled  beyond 
recall,  the  Courts  gave  a  restricted  meaning  to  the  word  **  mine,  * 
and  decided  that  in  the  sense  of  the  Act  of  Elizabeth  it  must  be 
taken  to  be  a  subterranean  excavation.  It  was  accord- 
ingly held  *that  persons  who  worked  lead,  freestone,  [*677] 
limestone,  or  even  clay  by  means  of  a  shaft  and  under- 
ground levels  were  not  liable  to  be  rated  in  respect  of  their  occu- 
pancy ;  whilst  others  who  worked  the  same  substances  by  means  of 
excavations  open  to  the  light  of  day  were  held  to  be  liable  as 
occupiers  of  land.  I  do  not  suggest  that  the  Courts  erred  in  limit- 
ing so  far  as  they  could  the  exemption  which  for  some  reason  or 
other  had  been  established ;  but  I  may  venture  to  express  a  doubt 
whether  any  such  exemption  or  distinctions  with  regard  to  the 
mode  of  working  would  have  been  recognised  if  the  Act  of  1601 
had  not  become  law  until  the  year  1847. 

I  am  unable  to  assent  to  the  appellants'  aigument  that  in  sect. 
18  of  the  Waterworks  Clauses  Act,  "  mines  "  must  be  understood 
in  the  same  sense  which  it  has  been  held  to  bear  in  the  statute  of 
Elizabeth.  Such  may  have  been  its  original  meaning;  but  it 
appears  to  me  to  be  beyond  question  that  for  a  very  long  period 
that  has  ceased  to  be  its  exclusive  meaning,  and  that  the  word 
has  been  used  in  ordinary  language  to  signify  either  the  mineral 
substances  which  are  excavated  or  mined,  or  the  excavations, 
whether  subterranean  or  not,  from  which  metallic  ores  and  fossil 
substances  are  dug  out  It  does  not  occur  to  me  that  an  open 
excavation  of  auriferous  quartz  would  be  generally  described  as  a 
gold  quarry ;  I  think  most  people  would  naturally  call  it  a  gold 
mine.  The  whole  frame  of  sect  18  indicates,  in  my  opinion, 
that  the  Legislature  intended  it  to  include  minerals  got  by  open 
working,  as  well  as  minerals  got  by  what  has  been  termed  mining 
proper.  The  clause  excepts  mines  of  slate  and  also  of  **  other 
minerals  "  —  an  expression  which  must,  at  the  least,  include  rock 
strata  of  the  same  homogeneous  character,  and  generally  worked 
or  capable  of  being  worked  by  the  same  methods  as  slate. 

The  fact  is  of  sufl&cient  notoriety  to  be  noticed  here,    that, 
although  in  the  extreme  south-west  of  the  island  slate  is  obtained 


496  MIKES  AND  MINERALS. 


Ho.  8.  —  Lord  Provoot  and  lUgiitnitM  of  COAigow  ▼•  Fazio,  18  App.  Cm.  677,  678. 

by  subterraneous  workings,  the  reverse  is  the  rule  in  North  Wales 
and  in  Scotland,  where  it  is  quarried.  The  word  "  quarry  "  is,  no 
doubt,  inapplicable  to  underground  excavations;  but  the  word 
"  mining  "  may  without  impropriety  be  used  to  denote  some  quar- 
ries. Dr.  Johnson  defines  a  quarry  to  be  a  stone  mine. 
[*  678]  In  *  framing  sect.  18  and  the  corresponding  railway  clauses, 
the  Legislature  plainly  intended  that  waterworks  under- 
takers and  railway  companies  should,  at  the  time  when  they  take 
land  by  compulsion,  pay  full  compensation  for,  and  become  at 
once  proprietors  of  all  surface  and  other  strata  which  are  not 
excepted.  To  adopt  in  these  clauses  the  same  construction  of 
"  mines  *  which  has  been  followed  for  the  purposes  of  the  English 
poor-rate  would,  in  my  opinion,  lead  to  consequences  which  the 
Legislature  cannot  have  contemplated.  In  that  case,  the  extent 
to  which  minerals  in  the  lands  were  sold  or  excepted  at  the  date  of 
the  conveyance  would  depend  upon  the  mode,  underground  or  open 
cast,  by  which  they  might  be  found,  at  some  future  and  far  distant 
time,  to  be  workable,  or  upon  the  method  according  to  which  the 
landowner  might  then  choose  to  work  them.  These  factors  being 
indeterminate,  it  would  be  well  nigh  impossible  at  the  date  of  the 
purchase  to  arrive  at  a  fair  estimate  of  the  compensation  payable 
for  it  I  cannot  conceive  that  the  Legislature  in  using  the  expres- 
sion ^  mines  of  slate, '  meant  to  distinguish  between  the  different 
methods  of  getting  it,  and  to  enact  that  slate  which  may  never  be 
disturbed,  shall  be  taken  and  paid  for  at  once,  if  it  would  natu- 
rally be  quarriedr  but  shall  not  be  taken  and  paid  for  until  it  is 
actually  worked,  if  it  would  naturally  be  got  by  means  of  an 
underground  level.  It  was  certainly  within  the  contemplation  of 
the  Legislature  that  water  or  railway  works  may  rest  upon  ex- 
cepted minerals ;  because  it  is  expressly  provided  that  the  under- 
takers or  the  company  are  to  be  entitled  to  such  parts  of  these 
minerals  as  require  to  be  excavated  for  the  purpose  of  construct- 
ing their  works.  When  a  railway  company  or  water  undertakers 
excavate  in  order  to  obtain  a  foundation  for  their  works  there  is 
no  roof  to  the  excepted  minerals ;  and  it  is  difficult  to  understand 
how,  in  these  circumstances,  they  could  be  got  by  proper  mining. 

I  am  accordingly  of  opinion  that,  in  these  enactments,  the  word 
"  mines  "  must  be  taken  to  signify  all  excavations  by  which  the 
excepted  minerals  may  be  legitimately  worked  and  got  If  coal, 
ironstone,  or  slate  crops  out  at  any  part  of  the  surface  taken  for 


R.  C.  VOL.  XVII.] 

SECT.  L  — MINERAL  PROPERTY. 

497 

Vo.  8.  — Lord  Promt  and  Mtgiitratei  of  Gla^ow  ▼. 

FaziA,  18  App. 

Cm. 

678, 

619. 

waterworks  or  railway  purposes,  the  undertakers  or  the  company 
acquire,  in  my  opinion,  no  right  save  the  right  to  use  that 
♦  part  of  the  surface ;  they  acquire  no  right  to  the  minerals  [*  679] 
themselves  except  in  so  far  as  these  are  dug  out  or  exca- 
vated, in  order  to  construct  their  works.  The  important  question 
still  remains.  What  are  the  minerals  referred  to,  other  than  coal, 
ironstone,  or  slate  ?  My  present  impression  is  that  "  other  min- 
erals "  must  necessarily  include  all  minerals  which  can  reasonably 
be  said  to  be  ejusdem  gemris  with  any  of  those  enumerated.  Slate 
being  one  of  them,  I  do  not  think  it  would  be  possible  to  exclude 
freestone  or  limestone  strata.  I  may  add  that,  so  far  as  I  can  see, 
it  is  possible  that  there  may  be  some  strata  which  would  pass 
to  the  compulsory  purchaser,  if  they  lay  on  the  surface,  but  may 
possibly  be  reserved  to  the  seller,  if  they  occur  at  some  depth 
below  it  But  I  desire  to  say  that,  in  the  view  which  I  take  of 
the  present  case,  it  is  not  necessary  to  determine  any  of  these 
points. 

The  enactments  in  question  describe  the  excepted  mines  of 
minerals,  as  lying  imder  the  land  compulsorily  acquired;  and 
they  appear  to  me  to  contemplate  that  the  purchasers,  as  soon  as 
they  obtain  a  conveyance,  shall  become  the  owners  of  "  the 
land.*  That  expression,  as  it  occurs  in  these  enactments,  obvi- 
ously refers  to  surface ;  and  the  question  therefore  arises.  What,  in 
ordinary  acceptation,  is  understood  to  be  the  surface  crust  of  the 
earth  which  overlies  its  mineral  strata  ?  It  is,  of  course,  conceded 
that  vegetable  mould,  which  commonly  forms  a  large  ingredient 
of  the  topmost  layer  of  the  crust,  is  not  within  the  exception; 
but  it  is  also  the  fact  that,  in  many  districts,  the  cultivable  soil  is 
mainly  composed  of  clay,  which  is  a  mineral,  in  this  sense,  that 
it  is  an  inorganic  substance.  I  have  come  to  the  conclusion  that 
the  expression  "  the  land "  cannot  be  restricted  to  vegetable 
mould  or  to  cultivated  clay :  but  that  it  naturally  includes,  and 
must  be  held  to  include,  the  upper  soil  including  the  subsoil, 
whether  it  be  clay,  sand,  or  gravel ;  and  that  the  exceptional  depth 
of  the  subsoil,  whilst  it  may  enhance  the  compensation  payable  at 
the  time,  affords  no  ground  for  bringing  it  within  the  category  of 
excepted  minerals. 

I  am  accordingly  of  opinion  that  the  interlocutor  of  the  First 
Division  of  the  Court  of  Session  ought  to  be  reversed,  and  that  of 
the  Lord  Ordinary  restored. 
VOL.  XVII.  —  32 


498  MINES  AND  MINERALS. 

Ho.  8.  — Lord  Pnnvost  and  XagiitratM  of  Olaigow  v.  Fazio,  18  App.  Caa.  680,  681. 

f  *  680]      *  Lord  Herschell  :  — 

My  Lords,  I  have  the  misfortune  to  differ  from  the  rest 
of  your  Lordships,  who  heard  the  arguments  in  this  case.  I 
confess  that  my  mind  has  wavered  much  as  to  the  proper  conclu- 
sion to  be  arrived  at,  and  I  need  hardly  say  that  I  have  the  less 
confidence  in  my  opinion  when  I  find  it  differs  from  those  which 
your  Lordships  entertain. 

The  point  for  decision  in  this  case  is  a  simple  one,  and  may  be 
shortly  stated,  but  to  my  mind  it  is  one  of  very  considerable  diffi- 
culty. The  appellants  in  1871  purchased  a  piece  of  land,  for  the 
sum  of  £11,000,  from  a  predecessor  in  title  of  the  respondent  for 
the  purpose  of  constructing  works  authorised  by  the  Glasgow 
Corporation  Waterworks  Act,  1866,  and  have  constructed  their 
works  upon  it  The  disposition  to  the  appellants  contained  a 
reservation  in  favour  of  the  sellers  of  '*  the  whole  coal  and  other 
minerals  in  the  said  lands  in  terms  of  the  Waterworks  Clauses 
Act,  1847." 

The  Act  just  named,  which  is  incorporated  with  the  appellants' 
private  Act,  under  which  the  land  was  purchased,  provides  (sect 
18)  "  that  the  undertakers  shall  not  be  entitled  to  any  mines  of 
coal,  ironstone,  slate,  or  other  minerals  under  any  land  purchased 
by  them,  except  only  such  parts  thereof  as  shall  be  necessary  to  be 
dug  or  carried  away  or  used  in  the  construction  of  the  waterworks, 
unless  the  same  shall  have  been  expressly  purchased,  and  all  such 
mines,  excepting  as  aforesaid,  shall  be  deemed  to  be  excepted  out 
of  the  conveyance  of  such  lands,  unless  they  shall  have  been  ex- 
pressly named  therein  and  conveyed  thereby.  * 

I  may  observe  here  that  I  cannot  accede  to  the  view  that  the 
present  case  is  to  be  dealt  with  as  if  the  "  coal  and  other  minerals  " 
had  been  reserved  to  the  respondent  by  the  operation  of  the  dispo- 
sition alone  without  regard  to  the  statutory  provision  I  have 
quoted.  It  appears  to  me  that  whatever  the  statute  excluded  from 
the  purchase  was  excluded  in  the  present  case,  and  that  the  issue 
between  the  parties  depends  entirely  upon  the  construction  to  be 
put  upon  the  statute  in  relation  to  the  circumstances  before  us. 
Within  and  under  the  lands  purchased,  and  the  adjoining 
[*  681]  lands,  there  is  a  seam  of  clay  which  the  respondent  *  had 
been  for  some  time  working  in  the  adjoining  lands,  Bhd  in 
March,  1885,  he  intimated  that  he  was  desirous  of  working  it 
under  the  ground  acquired  by  the  pursuers,  and  called  upon  them 


k 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  499 

Ho.  8.  —  Lord  Provoit  and  MagiftratM  of  Olasgow  v.  Fane,  18  App.  Caa.  681,  688. 

to  state  whether  they  would  avail  themselves  of  their  right  to 
prevent  his  working  the  seam  by  making  them  coinpensation 
therefor  in  terms  of  the  Waterworks  Clauses  Act,  1847.  Hence 
the  present  action,  the  appellants  insisting  that  the  clay  was  in- 
cluded in  their  purchase,  and  that  the  respondent  had  no  title 
to  it. 

In  the  4th  condescendence  it  is  alleged  that  the  seam  of  clay 
lies  at  an  average  depth  of  only  two  feet  below  the  surface,  and 
that  it  can  be  worked  only  by  open  workings,  which  would 
destroy  or  endanger  the  appellants'  works.  This  is  not  admitted 
by  the  answer,  which  alleges  that  the  clay  in  the  ground  adjoin- 
ing has  been  wrought  open  cast,  "  but  previous  tirring  of  the  sur- 
face is  not  necessary. "  I  understand  this  to  mean  that  the  clay 
under  the  appellants'  land  could  be  worked  otherwise  than  from 
the  surface.  The  answer  further  states  that  the  seam  is  of  great 
value.  No  proof  was  led,  the  learned  Lord  Ordinary  being  of 
opinion  that  it  was  unnecessary  to  do  so.  Upon  the  allegations 
I  have  referred  to,  the  question  arises,  and  I  think  it  is  the  sole 
question  in  the  case,  whether  this  seam  of  clay  was  reserved 
within  the  terms  ''  mines  of  coal,  slate,  ironstone,  and  other  min- 
erals, "  or  whether  the  whole  of  it  lying  under  the  land  conveyed, 
passed  by  the  conveyance. 

The  real  question,  then,  to  be  determined  is  the  meaning  to  be 
given  to  the  words  "  mines  and  other  minerals "  in  construing  the 
Act  of  1847.  And  I  doubt  whether  we  are  very  much  assisted  by 
the  interpretation  which  has  been  put  upon  the  same  words 
appearing  in  a  different  collocation  or  in  other  instruments  or 
enactments. 

Your  Lordships  were  referred  to  various  English  authorities  for 
the  purpose  of  showing  that  clay  had  been  held  in  a  case,  Hext  v. 
GUI,  L.  R  7  Ch.  699  (p.  429,  anU),  in  the  Court  of  Appeal  to  be 
within  a  reservation  of  minerals,  and  that  in  other  cases  a  defini- 
tion of  minerals  had  been  adopted  sufficiently  wide  to  include  it. 
On  the  other  hand,  reliance  was  placed  upon  some  Scotch 
authorities,  and  notably  on  Menzies'  *.case,  1  Shaw  Ap.  225,  [*  682] 
in  your  Lordships'  House,  as  establishing  that  in  a  con- 
tract between  superior  and  vassal  a  reservation  of  mines  and 
minerals  did  not  comprise  freestone,  which  could  only  be  obtained 
by  quarrying.  Lord  MuRE,^  whose  judgment  in  the  Court  below 
1  14  Coart  Seas.  Cas.,  4th  Series,  at  p.  054. 


500  lfIK£S  A19D  MINERALS. 


No.  8.  —  Lord  Provoit  and  XagiftratM  of  Olaigow  ▼.  Tuit,  18  App.  Cm.  68S,  688. 

was  in  favour  of  the  appellants,  based  his  opinion  upon  the  ground 
that  though  it  might  be  settled  by  the  English  authorities  that 
minerals  had  the  extensive  meaning  contended  for,  yet  it  was 
settled  by  the  Scotch  law  that  in  an  ordinary  contract  of  convey- 
ance a  more  restricted  interpretation  must  be  adopted,  and  that 
there  was  no  reason  for  construing  differently  the  statutory  reser- 
vation in  question.  It  is  to  be  observed,  however,  that  the  enact- 
ment with  which  we  have  to  deal  is  intended  to  be  incorporated 
with  all  waterworks  Acts,  whether  in  England  or  Scotland,  and 
that  both  the  Scotch  and  English  Railways  Clauses  Acts  contain 
similar  provisions.  When  the  object  and  purview  of  these  various 
statutes  is  regarded,  it  is  not  to  be  supposed  that  the  Legislature 
intended  the  same  or  similar  enactments  in  these  various  statutes 
to  have  a  different  meaning. 

What  we  have  to  do,  then,  is,  I  think,  to  look  at  the  purview 
and  intent  of  the  Acts,  and  to  consider  what  the  Legislature  meant 
by  the  language  they  have  employed.  It  is  impossible  to  peruse 
the  various  provisions  of  the  Act  we  are  considering  without  seeing 
that  the  words  "  mines  "  and  "  minerals  '  are  somewhat  loosely 
used.  Before  proceeding  to  the  interpretation  of  them,  it  may 
be  well  to  inquire  what  was  the  object  of  the  L^islature  in  re- 
serving the  minerals,  and  not  vesting  them  in  the  undertakers  of 
the  works  authorised  by  the  Acts  with  which  the  general  Act  is 
incorporated. 

This  object  is,  I  think,  clearly  stated  by  the  learned  Lords  who 
delivered  their  opinions  in  the  case  of  Bennett  v.  Great  Western 
Railway  Company,  L.  R  2  H.  L.  27.  I  think  these  provisions 
were  inserted  for  the  common  advantage  of  the  landowner  and  the 
undertakers.  He  was  not  to  be  compelled  to  sell  minerals  which 
were  not  needed  for  the  purpose  of  the  undertaking,  and  they  were 
not  to  be  compelled  to  purchase  and  pay  for  minerals  which  they 
did  not  want,  which  the  owner  of  them  might  never 
[*  683]  desire  to  work,  *  and  as  to  which  it  would  be  often  diffi- 
cult to  determine  beforehand  whether  their  working  would 
be  likely  to  affect  the  waterworks  or  railway  constructed  on  the 
surface  of  the  land.  I  think,  therefore,  that  we  should  expect  to 
find  reserved  all  minerals  under  the  land  of  such  a  nature  as  are 
commonly  worked,  and  which  possess  a  value  independent  of  the 
surface. 
I  propose  first  to  inquire  what  meaning  ought  to  be  attached  to 


R.  C.  VOL.  XVIL]  sect.  I. — MINERAL  PROPERTY.  501 

Ho.  8.  —Lord  Proroit  and  MagiftratM  of  Glasgow  ▼.  Farie,  18  App.  Caa.  688,  684. 

the  word  *  minerals, "  supposing  only  the  words  "  coals,  slate, 
ironstone,  or  other  minerals "  had  been  employed  without  any 
.mention  of  *  mines. "  I  think  that  the  word  **  minerals  *  imports, 
primdL  facie,  and  apart  from  any  context,  all  substances  other  than 
the  vegetable  matters  forming  the  ordinary  surface  of  the  ground. 
In  this  widest  sense  clay  is  unquestionably  a  mineral.  But  we 
have  to  look  to  the  context  to  see  whether  the  word  is  here  used 
in  a  more  limited  sense,  and  if  so,  what  is  the  limitation  to  be  put 
upon  it  I  think  the  popular  use  of  the  word  is  often  narrower, 
and  that  when  people  talk  of  minerals  they  frequently  use  the 
word  in  reference  to  metals  or  metalliferous  ores.  But  it  is  im- 
possible to  give  this  restricted  meaning  to  the  word  in  the  enact- 
ment we  are  seeking  to  construe.  Goal  and  slate  are  specifically 
mentioned,  and  the  words  "  other  minerals  *  cannot  be  confined 
to  metallic  substances.  Coal,  slate,  and  ironstone  are  minerals 
most  dissimilar  in  their  character,  and  I  have  sought  in  vain  for 
any  mode  of  restricting  the  word  "  minerals  *  in  this  section, 
whether  by  confining  it  to  things  efusdem  generis  with  those  speci- 
fied, or  otherwise.  There  is  no  common  genus  within  which  coal, 
slate,  and  ironstone  can  be  comprised,  except  that  they  are  mineral 
substances  of  sufficient  value  to  be  commonly  worked. 

But  the  words  which  I  have  hitherto  discussed  do  not,  as  has 
been  seen,  stand  alone.  The  things  reserved  are  **  any  mines  * 
of  coal,  slate,  ironstone,  or  other  minerals  under  the  land  pur- 
chased. It  appears  to  me  that  this  limits  the  reservation  to  mines 
of  the  substances  named,  and  therefore  to  **  mines  "  of  the  other 
minerals  included  in  the  general  term.  What,  then,  is  the  inter- 
pretation to  be  put  upon  the  word  *'  mines  "  ?  I  think  the  primary 
idea  suggested  to  the  popular  mind  by  the  use  of  the  word  is 
an  underground  working  in  which  minerals  are  being 
*  or  have  been  wrought  It  is  certainly  often  used  in  con-  [*  684] 
trast  to  "  quarry, "  as  indicating  an  underground  working 
as  opposed  to  one  open  to  the  surface.  But  to  limit  it  in  the 
enactment  we  are  construing  to  an  underground  cavity,  in  which 
minerals  are  being  or  have  been  wrought,  would  be  obviously 
inadmissible.  The  enactment  was  clearly  intended  to  extend  to 
minerals  lying  underground  which  had  hitherto  been  undisturbed. 
Is  the  true  interpretation  to  be  found  by  limiting  the  provision  to 
those  minerals  which  are  commonly  worked  by  means  of  under- 
ground working?    The  word  "  mines  *  is,  I  think,  in  a  secondary 


502  BONES  AND  HINEBALS. 


No.  8.  —  Lord  Provost  and  Xagiftratei  of  Glasgow  ▼.  Farie,  18  App.  Cas.  684,  685. 

sense,  very  frequently  applied  to  a  place  where  minerals  commonly 
worked  underground  are  being  wrought,  though  in  the  particular 
case  the  working  is  from  the  surface.  For  example,  where  iron  is 
got  by  surface  workings  they  are  spoken  of  as  iron  mines,  and  so, 
too,  with  coal  which  crops  out  at  the  surface.  No  one,  I  think, 
ever  heard  of  a  coal  or  iron  quarry.  On  the  other  hand,  the  term 
"  slate  quarry "  is  undoubtedly  sometimes  made  use  of,  though  the 
workings  are  underground  I  think  it  is  impossible  to  obtain 
any  assistance  from  this  use  of  the  word  "  mines  "  in  construing 
sect  18.  It  is  no  doubt  exceptional  to  obtain  coal  and  iron 
except  by  underground  workings ;  but  this  is  not  so  with  slate, 
and  the  word  "  mines '  is  used  alike  in  reference  to  all  these 
substances. 

I  thought  for  some  time  that  the  language  used  must  be  con- 
strued as  applying  only  to  those  seams  or  strata  of  the  specified  and 
other  minerals  which  were  capable  of  being  wrought  by  under- 
ground workings.  It  seems  to  me  that  there  is  much  to  be  said 
for  that  view,  but  after  reflection  I  do  not  feel  that  it  affords  a  safe 
basis  for  decision,  nor  is  it  clear  that  it  would  assist  the  appel- 
lants. It  must  be  remembered  —  and  I  think  this  has  an  impor- 
tant bearing  on  the  view  adopted  by  the  learned  Lord  Ordinary  — 
that  it  is  part  of  the  scheme  of  the  statute  that  the  undertakers 
do  not  purchase  any  right  to  the  support  of  the  underlying  strata 
of  minerals.  No  one  has  doubted  that  if  they  refuse  to  purchase 
the  reserved  minerals,  whatever  is  really  within  the  reservation 
may  be  got,  even  though  the  result  be  to  cause  a  serious  subsidence 
and  even  dislocation  of  the  surface.  In  this  respect  the 
[*  685]  case  differs  from  an  ordinary  reservation  in  a  *  deed  un- 
affected by  statutory  provisions.  In  such  a  case  the  owner 
of  the  reserved  minerals  can  only  work  such  portion  of  them  as 
can  be  removed  without  causing  disturbance  of  the  surface,  or  if 
he  remove  more  he  must  provide  some  substituted  means  of  sup- 
port Therefore  when  it  is  suggested  that  the  reservation  in 
question  embraces  only  such  mineral  seams  as  are  capable  of  being 
worked  underground,  that  cannot  mean  such  as  are  capable  of 
being  so  worked  without  disturbing  the  surface. 

Once  this  conclusion  is  arrived  at,  it  is  difficult  to  see  any  firm 
basis  for  a  distinction  between  seams  which  lie  at  a  considerable 
depth  below  the  surface,  the  removal  of  which  would  be  likely  to 
affect  it  little,  and  those  which  lying  near  it  could  not  be  got 


R.  C.  VOL-  XVII.]  SECT.  I.  —  MINERAL  PROPEKTY.  503 

Ho.  8.  —  Lord  Provoit  and  ICagiBtratei  of  Olaigow  ▼.  Parie,  18  App.  Oaa.  685,  686. 

without  very  seriously  aflfecting  it  What  valid  distinction  could 
be  drawn  between  a  seam  of  coal  or  ironstone  a  hundred  yards  be- 
neath the  surface,  and  one  which  came  within  two  feet  of  it  ?  And 
if  the  latter  would  be  within  the  reservation,  how  can  a  seam  of 
clay  similarly  situated  be  excluded  ?  I  have  said  that  it  is  not 
clear  that  the  proposed  interpretation  of  the  section  would  be  of 
any  advantage  to  the  appellants.  For  proof  not  having  been  led 
I  cannot  assume  that  the  clay  might  not  be  got  otherwise  than  by 
surface  operations  by  working  on  from  the  adjoining  land,  though 
of  course  its  removal  would  cause  subsidence,  and  great  disinte- 
gration of  the  surfaca  I  own  I  have  entertained  very  grave 
doubts  as  to  the  proper  conclusion  to  be  arrived  at,  but  I  do  not 
see  my  way  to  differ  from  the  judgment  of  the  Court  below.  I 
think  the  reservation  must  be  taken  to  extend  to  all  such  bodies 
of  mineral  substances,  lying  together  in  seams,  beds,  or  strata,  as 
are  commonly  worked  for  profit,  and  have  a  value  independent  of 
the  surface  of  the  land. 

I  desire  to  guard  myself  against  being  supposed  to  decide  more 
than  I  do.  The  pursuers  in  this  action  seek  to  interdict  the 
defender  altogether  from  working  the  clay  under  their  land  in  any 
manner  whatsoever.  All  that  in  my  opinion  arises  for  decision  is 
whether  they  are  entitled  to  do  so.  I  say  this,  because  it  was 
contended  before  us  that  inasmuch  as  the  statute  authorises  the 
use  of  such  part  of  the  minerals  as  may  be  necessary  for  the 
pursuers'  works,  and  the  bed  of  clay  forms  the  *  bottom  [*  686] 
and  sides  of  their  reservoir,  the  defender  cannot  be  entitled 
to  take  away  this  clay.  But  this  point,  which  is  well  worthy  of 
consideration,  does  not  appear  to  me  to  be  raised  at  the  present 
time.  I  therefore  forbear  from  expressing  any  opinion  upon  it  or 
(assuming  it  to  be  well  founded)  upon  the  further  question  how 
much  of  the  clay  can  be  considered  as  having  been  used  for  the 
purpose  of  the  waterworks,  and  therefore  as  having  become  the 
property  of  the  appellants.  I  think  the  interlocutor  appealed  from 
ought  to  be  affirmed. 

Lord  Macnaghten  :  — 

My  Lords,  your  Lordships  are  called  upon  to  determine  the 
meaning  of  the  word  "  mines  *  in  the  18th  section  of  the  Water- 
works Clauses  Consolidation  Act,  1847..  That  section  is  the  first 
and  the  most  important  section  in  a  group  of  clauses  collected 
under  the  heading,  "  With  Eespect  to  Mines. "     Corresponding 


504  MINES  AND  MINERALS. 


No.  8.  —  Lord  Proroit  and  Xagiftratoi  of  Olaigow  ▼.  Fazio,  18  App.  Gu.  688,  887. 

provisions  are  to  be  found  in  the  Eailways  Clauses  Consolidation 
Act,  1845,  and  the  Railways  Clauses  Consolidation  (Scotland) 
Act,  1845. 

The  argument  before  your  Lordships  proceeded  on  the  ground 
that  so  far  as  the  present  question  is  concerned  the  three  Acts  must 
be  construed  alike,  and  that  in  regard  to  mines  under  or  near  lands 
purchased  for  the  purpose  of  the  undertaking  railways  are  in 
precisely  the  same  position  as  waterworks.  The  case,  therefore, 
is  one  of  considerable  importance.  But  the  question  lies  in  a 
narrow  compass,  and  must,  I  think,  depend  for  its  solution  on  an 
examination  of  the  sections  in  the  Waterworks  Act  which  bear 
upon  the  subject,  with  the  aid  of  such  light  as  may  be  derived 
from  parallel  passages  in  the  railway  Acts. 

Sect.  18  of  the  Waterworks  Clauses  Act,  1847  (corresponding 
with  sect.  77  of  the  English  Eailways  Act  and  sect  70  of  the 
Scotch  Act),  is  in  the  following  terms.     [His  Lordship  read  it  ]  ^ 

The  exception  in  favour  of  the  vendor  comprehends,  it  will  be 
observed,  mines  of  all  sorts  —  mines  of  coal,  ironstone,  and  slate, 
and  mines  of  other  minerals  —  but  nothing  else.  Taking  the 
words  in  their  ordinary  signification,  and  in  their  gram- 
[*  687]  matical  *  construction,  the  exception  does  not  extend  to 
minerals  other  than  minerals  of  which  mines  are  com- 
posed. This  seems  clear  from  the  latter  part  of  the  section,  where 
the  expression  "  such  mines  *  refers  to  and  sums  up  everything 
covered  by  the  words  of  description  previously  used. 

On  this  exception  there  is  engrafted  an  exception  in  favour  of 
the  undertakers.  It  is  one  of  very  limited  extent  But  it  throws, 
I  think,  considerable  light  on  the  meaning  of  the  word  "  minea  * 
It  excepts  "  only  such  parts  *  of  the  mines  under  the  lands  pur- 
chased "  as  shall  be  necessary  to  be  dug  or  carried  away,  or  used  in 
the  construction  of  the  works. " 

Now  the  meaning  of  the  word  **  mines  *  is  not,  I  think,  open  to 
doubt.  In  its  primary  signification  it  means  underground  excava- 
tions or  underground  workings.  From  that  it  has  come  to  mean 
things  found  in  mines  or  to  be  got  by  mining,  with  the  chamber 
in  which  they  are  contained.  When  used  of  unopened  mines  in 
connection  with  a  particular  mineral  it  means  little  more  than 
veins  or  seams  or  strata  of  that  mineral.  But  however  the  word 
may  be  used,  when  we  speak  of  mines  in  this  country,  there  is 

1  See  Lord  HerscheU's  opinion,  p.  498,  ante. 


R.  C.  VOL.  XVII.]  SECT,  L  —  MINERAL  PROPERTY.  505 

Ho.  8.  —  Lord  FzoTOft  and  MagktntM  of  Olaigow  t.  Fwie,  18  App.  Caf .  687,  688. 

always    some    refercDce    more    oi    less    direct    to    underground 
working. 

In  Darvill  v.  Roper ,  3  Dr.  294,  and  again  in  Bdl  v.  Wilson,  L. 
R  1  Ch. ,  at  p.  308,  Kindersley,  V.  C. ,  had  to  consider  the  mean- 
ing of  the  term  *"  mines. "  In  the  latter  case  he  asks  the  question, 
"  What  is  a  mine  ? "  and  he  answers  it  thus :  "  I  cannot  entertain 
the  smallest  doubt  that  a  mine  and  a  quarry  are  not  the  same. 
It  would,  perhaps,  require  some  labour  to  define  precisely  what 
each  is,  *but  we  know  this,  that  a  mine,  properly  speaking,  is  that 
mode  of  working  for  minerals  by  diving  under  the  earth,  and  then 
working  horizontally  or  laterally ;  whereas  a  quarry  is  when  the 
working  is  sub  dio.  There  is  not  the  slightest  doubt  in  my  mind 
as  to  the  difiference  between  them. "  The  case  of  Bdl  v.  Wilson 
was  taken  to  the  Court  of  Appeal.  In  his  judgment  on  the  appeal 
Turner,  L.  J.,  asks  the  same  question,  and  after  referring  to  dic- 
tionaries answers  it  in  much  the  same  way.  As  regards  that  part 
of  the  case  he  expressed  his  entire  concurrence  with  the  Vice- 
Chancellor.  It  was  admitted  that  there  is  no  reported 
case  *  which  throws  any  doubt  on  the  accuracy  of  the  [*  688] 
language  used  by  the  Vice-Chancellor  in  defining  or 
describing  a  mine.  If  one  wanted  a  recent  authority  to  confirm 
the  Vicb-Chancellor  and  to  emphasise  the  ordinary  meaning  of 
the  word  **  mines  *  one  could  not,  I  think,  do  better  than  turn 
to  the  judgment  of  Kay,  J.,  in  Midland  Railway  Company  v. 
Saunchwood,  20  Ch.  D. ,  at  p.  560.  In  describing  the  case  before 
him  the  learned  Judge  says :  "  The  subject  of  litigation  in  this  case 
is  a  bed  of  clay  used  for  making  a  peculiar  kind  of  brick,  and  of 
some  value  from  the  circumstance  that  it  contains  a  certain 
amount  of  iron.  There  are  three  or  four  feet  of  surface  earth  above 
this,  except  at  one  point  wliere  it  crops  out,  but  it  is  in  no  sense 
a  mine,  being  got  entirely  by  open  workings. " 

Dealing,  therefore,  with  sect.  18  alone,  there  seems  to  be  no 
reason  for  giving  the  word  "  mines  *  a  strained  or  unnatural  mean- 
ing. It  has,  indeed,  been  suggested  that  the  mention  of  slate 
tends  to  show  that  the  word  *  mines  *  is  used  in  a  loose  way  with- 
out reference  to  any  particular  mode  of  working,  because  slate  is 
usually  got  by  open  working.  But,  as  everybody  knows,  there 
are  places  where  slate  is  worked  underground.  The  Act  excepts 
mines  of  slate ;  it  is  silent  as  regards  slate  quarries.  The  more 
natural  inference  would  be  that  slate  mines  are  excepted,  and 


506  MINES  AND  MINERALS. 


No.  8.  —  Lard  Pnnroft  and  MagktntM  of  Olaigow  t.  Fario,  18  App.  Ou.  688,  689. 

that  slate  quarries  are  not,  —  especially  as  the  Railways  Clauses 
Acts  make  mention  of  slate  quarries  in  another  group  of  sections. 
It  has  also  been  suggested  that  the  exception  in  favour  of  the 
undertakers  points  to  minerals  near  the  surface,  and  therefore  to 
minerals  which  may  be  got  by  quarrying.  But  it  seems  to  me 
that  there  is  little  force  in  this  suggestion.  The  exception  rather 
tells  the  other  way.  In  constructing  railways  and  waterworks, 
in  deep  cuttings,  in  tunnelling,  or  in  sinking  wells  it  is  at  least 
possible  that  minerals  contained  in  mines  may  be  met  with.  On 
such  an  event  occurring,  were  it  not  for  the  exception,  the  opera- 
tions of  the  undertakers  or  of  the  company  might  be  brought  to  a 
standstill.  And  so  the  Act  gives  them  as  included  in  their  pur- 
chase such  parts  of  the  mines,  or,  in  other  words,  so  much  of  the 
minerals  contained  therein  as  they  are  obliged  to  interfere  with 

in  the  construction  of  their  works.  But  it  gives  them 
[*  689]  nothing  more.     How  strictly  railway  *  companies  are  tied 

down  when  their  powers  are  limited  by  reference  to  what 
is  "  necessary  "  is  shown  by  the  decisions  on  sect.  16  of  the  English 
Act  as  to  the  diversion  of  roads  and  rivers.  See  Beg,  v.  Wycombe 
Railway  Company,  L.  R  2  Q.  B.  310;  Fiigh  v.  Golden  Valley 
Railway  Company,  15  Ch.  D.  330.  The  rights  of  the  undertakers 
or  of  the  company  are  limited  by  the  necessity  of  the  case.  They 
are  not  at  liberty  to  interfere  with  mines  or  to  use  the  minerals 
contained  therein  merely  because  it  may  be  a  convenience  or  a 
saving  of  expense  to  do  so.  If  the  intention  of  Parliament  had 
been  to  reserve  to  the  vendor  under  the  exception  of  "  mines  "  all 
minerals  of  every  description  however  they  might  be  worked,  and 
therefore  such  things  as  clay,  stone,  and  gravel,  which  are 
ordinary  materials  for  constructing  or  repairing  the  works,  one 
would  have  expected  to  find  the  undertakers  and  the  company 
authorised  to  use  not  merely  such  parts  of  the  "  mines  *  as  might 
be  necessary,  but  such  parts  as  might  be  useful  or  proper  for  con- 
structing their  works ;  and,  on  the  other  hand,  required  to  pay  for 
what  might  be  so  used,  and  to  work  under  the  direction  or  inspec- 
tion of  the  mine  owner  or  his  surveyor. 

So  far  there  seems  to  be  no  diflSculty.  The  difficulty,  such  as 
it  is,  is  created  by  the  sections  which  follow,  and  which  regulate 
the  rights  of  owners  of  mineral  property  (if  I  may  be  allowed  to 
use  that  expression  as  a  neutral  term)  lying  under  or  near  the 
lands  of  the  undertakers  or  the  company.     In  these  sections  we 


R.  C.  VOL.  XVII.]  SECT.  I. — MINERAL  PROPERTY.  507 

Ho.  8.  —  Lord  Froroit  and  Kagiitrates  of  Glaigow  ▼.  Pane,  18  App.  Caf.  689,  690. 

find  the  expressions  "  mines  or  minerals, "  "  such  mines, "  "  such 
mines  or  minerals, "  "  such  minerals, "  "  parts  of  mines, "  **  mines, 
measures,  or  strata, "  all  applied  to  the  mineral  property  within 
the  scope  of  the  enactment. 

Now  the  word  "  minerals  "  undoubtedly  may  have  a  wider  mean- 
ing than  the  word  **  mines. "  In  its  widest  signification  it  prob- 
ably means  every  inorganic  substance  forming  part  of  the  crust  of 
the  earth  other  than  the  layer  of  soil  which  sustains  vegetable  life. 
In  some  of  the  reported  cases  it  seems  to  be  laid  down,  or  assumed, 
that  to  be  a  mineral  a  thing  must  be  of  commercial  value,  or 
workable  at  a  profit.  But  it  is  difficult  to  see  why  commer- 
cial value  should  be  a  test,  or  why  that  which  is  a  mineral 
when  commercially  valuable  should  cease  to  be  a  mineral 
*  when  it  cannot  be  worked  at  a  profit  Be  that  as  it  [*  690] 
may,  it  has  been  laid  down  that  the  word  "  minerals  " 
when  used  in  a  legal  document,  or  in  an  Act  of  Parliament,  must 
be  understood  in  its  widest  signification,  unless  there  be  some- 
thing in  the  context  or  in  the  nature  of  the  case  to  control  its 
meaning.  It  has  also  been  held  that  the  use  of  the  word  "  mines  * 
in  conjunction  with  "  minerals  *  does  not  of  itself  limit  the  mean- 
ing of  the  latter  word.  At  the  same  time,  it  cannot  be  disputed 
that  the  term  "  minerals  "  is  not  unfrequently  used  in  a  narrower 
sense,  and  one,  perhaps,  etymologically  more  correct,  as  denoting 
the  contents  or  products  of  mines.  Nor,  indeed,  are  the  authori- 
ties all  one  way  in  preferring  the  wider  meaning  of  the  word 
**  minerals.  *  For  example,  in  Church  v.  Incloaure  Commissioners, 
11  C.  B.  (N.  S.)  664,  at  p.  681,  Williams,  J.,  observed,  and  appar- 
ently the  rest  of  the  Court  agreed,  that  **  minerals  in  the  ordinary 
sense  *  meant  "  minerals  which  could  be  worked  in  the  ordinary 
way  underground,  leaving  the  surface  or  crust  unaffected. " 

In  dealing  with  the  sections  which  follow  sect  18  it  is  to  be 
observed  that  their  scope  is  not  like  the  scope  of  sect.  18,  and  the 
corresponding  sections  of  the  railway  Acts,  limited  to  mineral 
property  lying  under  the  lands  purchased,  and  excepted  or  deemed 
to  be  excepted  out  of  the  conveyance.  These  sections  have  a  much 
wider  bearing.  They  extend  to  mineral  property  under  the  lands 
of  the  undertakers  or  the  company,  however  it  may  have  been 
severed  in  ownership  from  those  lands.  They  also  extend  to 
mineral  property  within  the  prescribed  distance,  although  the 
lands  under  which  it  lies  do  not  belong  to  the  undertakers  or  the 


508  MINES  AND  MINERALS. 


Ho.  8.  —  Lord  Provoit  and  Magistrateo  of  Olaigow  t.  Faxio,  14  App.  Cm.  680,  081. 

company.  It  would  therefore  not  be  enough  for  the  respondent  to 
make  out  that  these  sections  deal  with  minerals  not  contained  in 
mines.  He  must  show  that  on  the  fair  reading  of  these  sections 
the  word  "  mines  "  includes  minerals,  whether  got  by  mining  or 
not  If  that  could  be  established  it  would  go  far  towards  proving 
that  the  word  *"  mines "  must  have  that  meaning  in  sect.  18  and  in 
the  corresponding  sections  of  the  railway  Acts. 

It  may  be  conceded  that  in  several  places  in  these  later  sections 

the  word  *  mines  "  is  used  as  comprehending  whatever  is 
[*  691]   *  comprehended  by  the  term  **  minerals  "  as  therein  used. 

But  then  comes  the  question,  Is  the  word  *  minerals  '  to 
have  its  wider  signification,  and  therefore  to  enlarge  the  meaning 
of  the  word  "mines,"  or  is  the  word  "mines"  to  control  the 
meaning  of  the  word  "  minerals  "  ?  In  the  absence  of  an  explana- 
tory context  or  some  indication  to  be  gathered  from  the  nature  of 
the  case  it  has  been  held  that  the  narrower  meaning  of  the  word 
"  minerals  "  is  not  to  be  preferred.  Still  it  is  not  a  strained  or 
unnatural  meaning.  You  are  giving  a  strained  and  unnatural 
meaning  to  the  word  "  mines  "  if  you  make  it  include  minerals  not 
got  by  mining.  And,  therefore,  if  the  question  were  which  of 
the  two  words  should  yield  to  the  other,  there  could,  I  think,  be 
no  doubt  as  to  the  answer.  The  more  flexible  word  must  give 
way.  You  must  do  as  little  violence  as  possible  to  the  language 
you  have  to  construe. 

Apart,  however,  from  this  argument,  it  seems  to  me  that  if 
you  look  at  these  enactments  carefully,  comparing  one  with  the 
other,  you  will  find  enough  to  show  that  the  minerals  spoken  of 
are  minerals  that  are  "  parts  of  mines,  *  or  minerals  that  are 
"  contained  in  mines.  *  I  will  illustrate  my  meaning  by  one  or 
two  instances.  The  sentence  in  sect  78  of  the  English  Act,  **  if 
it  appear  to  the  company  that  the  working  of  such  mines  or  min- 
erals is  likely  to  damage  the  works  of  the  railway, "  becomes  in  the 
Scotch  Act,  sect  71,  "  if  it  appear  to  the  company  that  the  work- 
ing of  such  mines,  either  wholly  or  partially,  is  likely  to  damage 
the  works  of  the  railway. "  In  the  rest  of  the  latter  section  the 
two  expressions,  "  parts  of  mines  "  and  "  minerals  "  are  used  in- 
differently as  convertible  terms.  The  section  proceeds  as  follows : 
**  And  if  the  company  be  desirous  that  such  mines,  or  any  parts 
thereof,  be  left  unworked,  and  if  they  be  willing  to  make  compen- 
sation for  such  mines  or  minerals,  or  such  parts  thereof  as  they 


R.  C.  VOL.  XVIL]  sect.  I. — MINERAL  PROPERTY.  509 

Vo.  8.  —  Lord  Pnnroft  and  MagktntM  of  Olaigow  t.  FariA,  18  App.  Cm.  891,  888. 

desire  to  be  left  unworked,  they  shall  give  notice  to  such  owner, 
lessee,  or  occupier  of  such  their  desire,  and  shall  in  such  notice 
specify  the  parts  of  the  mines  .  .  .  which  they  shall  desire  to  be 
left  unworked  .  .  .  and  in  such  case  such  owner,  lessee,  or  occu- 
pier shall  not  work  or  get  the  mines  or  minerals  comprised  in 
such  notice.'  In  the  following  section  (sect  72  of  the  Scotch 
Act)   there   is  a  passage   which    refers  to   minerals   as 

*  being  contained  in  mines ;  and  the  context  shows  that  [*  692] 
the  minerals  so  referred  to  are  the  only  minerals  in  the 
contemplation  of  the  framers  of  the  Act  The  section  begins  with 
the  following  sentence :  "  If  before  the  expiration  of  such  thirty 
days  the  company  do  not  give  notice  of  their  desire  to  have  such 
mines  left  unworked,  and  of  their  willingness  to  make  such  com- 
pensation as  aforesaid,  it  shall  be  lawful  for  such  owner,  lessee, 
or  occupier  "  (that  is,  the  owner,  lessee,  or  occupier  of  any  mines 
or  minerals  lying  under  the  railway,  or  any  of  the  works  connected 
therewith,  or  within  the  prescribed  distance),  "  to  work  the  said 
mines,  or  such  parts  thereof  for  which  the  company  shall  not 
have  agreed  to  pay  compensation,  up  to  the  limits  of  the  mines 
and  minerals  for  which  they  shall  have  agreed  to  make  compensa- 
tion, in  such  manner  as  such  owner,  lessee,  or  occupier  shall  think 
fit,  for  the  purpose  of  getting  the  minerals  contained  therein.* 
Now,  the  expression,  "  the  minerals  contained  therein,"  must  mean 
^  the  minerals  contained  in  the  mines. "  So  the  purpose  to  which 
the  owner  of  the  minerals  and  the  purpose  to  which  the  owner  of 
the  mines  is  limited  are  one  and  the  same,  and  the  purpose  of  the 
owner  of  the  minerals  in  working  is  not  to  get  the  minerals,  using 
the  word  in  its  widest  signification,  but  to  get  the  minerals  con- 
tained in  the  mines. 

I  ought,  perhaps,  to  refer  to  the   passage  in  which   the  word 

*  minerals  *  originally  occurs  in  these  sections.  It  occurs  first  in 
sect  22,  where  it  is  provided  that  "  if  the  owner,  lessee,  or  occu- 
pier of  any  mines  or  minerals,*  lying  under  or  near  the  works, 
**  should  be  desirous  of  working  the  same,*  he  is  to  give  the  pre- 
scribed notice,  and  then  certain  consequences  follow.  Every 
subsequent  use  of  the  word  may  be  traced  to  that  passage.  Now, 
if  the  word  *  minerals  *  there  means  minerals  whether  got  by 
mining  or  not,  the  word  "  mines  *  is  plainly  superfluous,  what- 
ever meaning  be  given  to  it  But  if  the  word  *  minerals  *  be  re- 
stricted to  minerals  contained  in  mines^  I  doubt  whether  either 


510  MINES   AND   MINERALS. 


No.  8 Lord  Frovott  and  Magiitratae  of  Olasgow  t.  Parie,  18  App.  Cu.  892,  698. 

word  is  superfluous.  The  risk  to  be  guarded  against,  as  it  seems 
to  me,  was  the  loss  of  support  by  the  withdrawal  of  minerals  from 
the  mines.  The  minerals  might  be  worked  by  the  owner,  lessee, 
or  occupier  of  the  mines.     But  they  might  be  worked  by  persons 

who  could  not  properly  be  described  as  owners,  lessees,  or 
[*  693]  even  *  as  occupiers  of  the  mines.     They  might  be  worked 

by  persons  having  merely  a  license  to  enter  and  search  for 
mine.rals,  and  a  grant  of  the  minerals  when  obtained.  The  word 
**  minerals  "  may  have  been  added  out  of  abundant  caution  to  meet 
such  a  case  as  that,  and  as  being  a  less  awkward  expression  for 
the  draftsman's  immediate  purpose  than  the  expression,  "  parts  of 
mines,"  which  occurs  in  sect.  18.  At  the  same  time  if  the  word 
"  minerals, "  in  the  sense  of  "  parts  of  mines, "  or  minerals  con- 
tained in  mines  regarded  as  separate  from  the  chamber  which  con- 
tains them,  be  deemed  superfluous,  I  would  point  out  that  less  care 
seems  to  have  been  given  to  the  framing  of  these  sections  than  to 
the  framing  of  sect.  18.  That  section  and  the  corresponding  sec- 
tions of  the  railway  Acts,  mutatis  mutandis,  are  word  for  word 
the  same.  In  the  sections  which  follow  in  each  of  the  three  Acts 
there  are  changes  from  the  language  of  the  other  two,  and  also 
variations  of  expressions  in  the  same  Act  in  many  cases  where  it 
is  impossible  to  suggest  any  difiference  in  meaning.  These  sec- 
tions seem  t^  have  been  taken  at  random  from  different  common 
forms  without  any  attempt  at  precision  or  uniformity  of  lan- 
guage. In  such  a  composition  it  is  not  surprising  that  a  super- 
fluous word  should  be  found.  It  would  be  singular  that  in  a  short 
clause  like  sect  18  of  the  Waterworks  Act,  which  exhausts  the 
particular  subject  dealt  with,  the  leading  woW  should  be  used  in 
a  strained  and  unfamiliar  signification,  and  that  the  same  pecu- 
liarity should  be  found  in  all  three  Acts. 

There  is  no  passage  in  any  one  of  the  Acts  which  requires  the 
wider  signification  of  the  word  "  minerals. "  Oa  the  other  hand, 
the  provisions  for  inspecting  mines,  both  before  and  during  work- 
ing, and  the  provisions  for  the  ventilation  of  the  minerals,  for 
making  airways  and  mining  communications,  all  seem  to  point  in 
the  same  direction,  and  to  show  that  the  Acts  throughout  these 
clauses  are  dealing  with  mines,  using  the  word  in  its  proper  and 
usual  signification. 

Little  or  no  assistance  is  to  be  derived  from  the  rest  of  the 
Waterworks  Clauses  Act     But  it  may  be  observed  that  sect  12 


R.  a  VOL.  XVIL]    sect.  I.  —  MINERAL  PROPERTY.  511 

Ho.  8.  —  Lord  Pzorof  t  and  Magktntai  of  Olaigow  t.  Farie,  18  App.  Caa.  698,  8M. 

authorises  the  undertakers  to  dig  and  break  up  the  soil  of  the  lands 
which  they  enter  under  the  powers  of  their  special  Act,  and 
"  to  remove  or  use  all  earth,  stone,  mines,  minerals,  trees, 
*  and  other  things  dug  or  gotten  out  of  the  same.  *  The  [*  694] 
mention  of  earth  and  stone  in  conjunction  with  minerals 
seems  to  show  that  these  substances  were  not  considered  by  the 
framers  of  the  Act  to  be  necessarily  comprehended  by  the  term 
**  minerals.  * 

In  considering  the  Bailways  Clauses  Acts  it  is,  I  think,  worth 
while  to  refer  to  the  group  of  sections  prefaced  by  the  heading, 
"  With  respect  to  the  temporary  occupation  of  lands  near  the  rail- 
way during  the  construction  thereof  *  (sects.  32  to  43  of  the  Eng- 
lish Act,  sects.  27  to  36  of  the  Scotch  Act).  These  sections 
empower  the  company  for  certain  specified  purposes  to  enter  upon 
and  use  any  lands  within  a  distance  from  the  centre  of  the  line 
not  measured  by,  or  necessarily  corresponding  with,  the  limits  of 
deviation,  and  to  do  so  at  any  time  before  the  expiration  of  the 
period  limited  for  the  completion  of  the  railway,  a  period  which 
generally,  if  not  always,  extends  beyond  the  duration  of  the  com- 
pany's  powers  for  the  compulsory  acquisition  of  land. 

The  purposes  specified  in  the  Acts  include  **  the  purpose  of  tak- 
ing earth  or  soil  by  side  cutting  therefrom, "  and  "  the  purpose  of 
obtaining  materials  therefrom  for  the  construction  or  repair  of  the 
railway. "  In  exercise  of  these  powers  the  company  is  authorised 
"  to  dig  and  take  from  out  of  any  such  lands  any  clay,  stone, 
gravel,  sand,  or  other  thing  that  may  be  found  therein  useful  or 
proper  for  constructing  the  railway."  Then  comes  a  proviso 
"  that  no  stone  or  slate  quarry,  brickfield,  or  other  like  place, 
which,  at  the  time  of  the  passing  of  the  special  Act,  shall  be  com- 
monly worked  or  used  for  getting  materials  therefrom  for  the  pur- 
pose of  selling  or  disposing  of  the  same,  shall  be  taken  or  used  by 
the  company. " 

It  is  clear,  therefore,  that  in  certain  cases  and  for  certain  pur- 
poses a  railway  company  may  enter  upon  lands  containing  brick 
earth,  and  use  that  brick  earth,  although  the  land  may  not  be 
delineated  in  the  deposited  plans,  and  although  the  powers  of  the 
company  to  take  lands  compulsorily  may  have  expired.  But 
while  working  as  temporary  occupiers,  they  are  bound  (sect  41) 
to  work  in  accordance  with  the  directions  of  the  surveyor  or  agent 
of  the  owner  of  such  lands. 


612  MINES  AND   lilNEKALS. 


Ho.  8. — Lord  Provoit  and  MagktntM  of  Olaigow  t.  Fario,  18  kpp.  Cm. 

Now  sect  42  provides  that  in  all  cases  where  the  com- 

[*  695]  pany  *  enters  upon  lands  for  temporary  purposes,  the  owner 

may  **  serve  a  notice  in  writing  on  the  company  requiring 

them  to  purchase  the  said   lands.*     The  company  thereupon  is 

"  bound  to  purchase  the  said  lands. " 

Nothing  is  said  about  mines  or  minerals  in  this  section  or  in 
this  part  of  the  Act,  and,  as  I  have  already  pointed  out,  there  may 
be  cases  when  the  company  is  not  in  a  position  to  serve  a  counter 
notice  requiring  the  owner  to  sell  his  mines. 

Sect  43  provides  that "  where  the  company  shall  not  be  required 
to  purchase  such  lands,*  compensation  shall  be  made  for  their 
temporary  occupation,  and  that  such  compensation  shall  include 
*  the  full  value  of  all  clay,  stone,  gravel,  sand,  and  other  things 
taken  from  such  land.* 

It  seems  to  follow  from  the  consideration  of  these  sections  that, 
where  lands  taken  by  the  company  for  temporary  purposes  are  pur- 
chased in  pursuance  of  a  statutory  notice  given  by  the  owner,  the 
purchase  vests  in  the  company,  as  part  of  the  property  purchased, 
clay,  stone,  gravel,  sand,  and  other  things  of  that  sort,  useful  or 
proper  for  constructing  the  railway,  although  not  expressly  pur- 
chased or  expressly  named  in  the  conveyance  and  conveyed 
thereby,  and  also  that  after  the  purchase  the  company  are  free  to 
work  as  they  please,  without  being  subject  to  the  directions  of 
the  surveyor  or  agent  of  the  vendor. 

This  result,  however,  seems  somewhat  incompatible  with  the 
view  which  the  respondents  take  of  the  meaning  of  the  term 
"  mines  *  in  sect  77.  It  must  be  borne  in  mind  that  that  section 
is  not  confined  to  lands  which  the  company  require  to  purchase 
for  the  purpose  of  their  undertaking.  It  applies  to  "  any  land 
purchased  *  by  the  company,  and  therefore  to  lands  which  the 
owner  requires  the  company  to  purchase  under  sect  42.  If  the 
respondent's  view  be  correct,  a  railway  company  which  has  law- 
fully entered  on  lands  for  the  purpose  of  taking  clay  or  gravel 
therefrom  might  find  its  operations  suspended  by  a  notice  to  pur- 
chase those  lands.  If  clay  and  gravel  be  comprehended  in  the 
term  "mines,*  and  if  the  time  for  compelling  the  landowner  to 
sell  has  passed,  the  company  is  helpless.  Purchase  it  must  But 
the  purchase  will  prevent  the  lands  being  used  for  the  only  pur- 
pose for  which  they  were  wanted,  unless,  indeed,  you 
[*  696]  *  are  prepared  to  do  extreme  violence  to  plain  language. 


K.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  513 

Jfo.  8.  —  Lord  Frovoit  and  MagktntM  of  Glaigow  t.  Farie,  18  App.  Cm.  886,  887. 

and  to  read  the  provision  vesting  in  the  company  such  parts  only 
of  the  mines  under  the  lands  purchased  by  them  as  shall  be  neces- 
sary  to  be  used  in  the  construction  of  the  railway,  as  vesting  in 
them,  to  an  unlimited  extent,  whatever  may  be  useful  or  proper  for 
constructing  or  repairing  the  railway. 

It  was  urged  before  your  Lordships  that  the  enactments  deal- 
ing with  mines  were  passed  for  the  benefit  of  persons  authorised 
to  construct  waterworks  and  railways;  that,  to  use  Kay,  J. 's, 
language,  there  was  "  no  reasoft,  therefore,  for  putting  a  narrow  or 
restricted  construction  upon  the  word  *  mines,'  "  and  that,  conse- 
quently, the  word  ought  to  be  held  to  include  minerals  of  every 
description.  I  am  inclined  to  think  that  when  you  make  the 
word  "  mines  *  include  that  "  which  is  in  no  sense  a  mine, "  you  do 
something  more  than  avoid  a  narrow  and  restricted  construction. 
And  I  am  not  convinced  that  it  is  a  proper  mode  of  construing  an 
Act  of  Parliament  to  strain  the  language  in  favour  of  those  for 
whose  benefit  the  enactment  may  be  supposed  to  have  been  passed. 

However  that  may  be,  it  appears  to  me  that  the  enactments 
under  consideration  were  not  intended  to  benefit  waterworks  or 
railways  at  the  expense  of  those  whose  lands  might  be  required 
for  the  purpose  of  the  undertaking.  Indeed  if  Lord  Cranworth's 
suggestion  in  Oreat  Western  Railway  Company  v.  Bennett,  L.  R 
2  H.  L  27,  be  right,  the  main  object  of  these  enactments  in  their 
ultimate  shape  was  to  prevent  the  hardships  resulting  to  land- 
owners from  the  application  of  common-law  rights  to  compulsory 
purchases.  I  doubt  whether  railway  companies  were  special 
favourites  with  the  Legislature  in  those  days.  I  should  rather 
have  supposed  that  Parliament  considered  the  division  of  property 
and  the  adjustment  of  rights  effected  by  these  enactments  a  fair 
arrangement,  and  one  equally  beneficial  to  both  parties.  And  so 
it  is  if  the  language  used  has  its  ordinary  and  proper  signification. 
Confine  the  enactments  to  mines,  and  nothing  can  be  fairer. 
Where  lands  containing  mines  are  taken  by  a  railway  company  it 
•would  probably  be  a  most  serious  injury  to  the  vendor  to  compel 
him  to  include  his  mines  in  the  sale.  In  most  cases  he 
*  would  be  selling  a  long  narrow  strip  of  minerals,  which  [*  697] 
might  form  an  impassable  barrier  in  the  middle  of  his 
mines.  If  the  sale  were  a  voluntary  sale  to  an  ordinary  purchaser, 
it  would  be  a  matter  of  course  to  reserve  the  mines.  On  the  other 
hand,  neither  railway  companies  nor  persons  who  construct  water- 
voL.  XVII.  —  33 


514  MINES  AND  MINERALS. 

Ho.  8.  —  Lord  Provoft  and  MagktntM  of  Olaigow  t.  Fazio,  18  App.  Cm.  097,  698. 

works  require  mines  as  such,  or  are  capable  of  working  mines  for 
profit.  Mines  are  only  useful  to  them  so  far  as  they  may  con- 
tribute to  the  support  of  the  lands  under  which  they  lie.  And  in 
many  cases  they  may  be  worked  without  interfering  with  the 
beneficial  enjoyment  of  the  surface. 

These  considerations,  however,  do  not  apply  to  the  case  of 
gravel  and  clay,  and  things  of  that  sort,  which  may  be  termed 
surface  minerals.  Eemove  surface  minerals  from  under  the  track, 
and  the  railway  becomes  a  heap  of  rubbish.  For  the  very  exist- 
ence of  the  line  it  is  necessary  that  they  should  be  left  undis- 
turbed. And  yet,  according  to  the  respondent's  argument,  a 
railway  company  is  not  to  pay  for  the  use  they  make  of  surface 
minerals  which  do  not  belong  to  them.  Why?  Because  the 
person  to  whom  they  do  belong  does  not  actually  want  his  prop- 
erty just  yet.  In  the  meantime  it  is  more  useful  to  the  railway 
company  than  it  is  to  the  owner.  In  other  words,  to  put  it 
plainly,  a  railway  company  is  to  have  a  forced  loan  of  their  neigh- 
bour's property  without  consideration,  without  any  corresponding 
advantage  to  him,  so  long  as  he  may  be  unable  to  work  it  or  get 
it  worked  at  a  profit  The  doctrine  involved  seems  to  me  some- 
what advanced,  and  I  should  hesitate  to  attribute  it  to  the  Legisla- 
ture unless  I  found  it  clearly  expressed  in  the  Act  of  Parliament 
Observe  how  unreasonable  the  proposition  is.  The  surface  min- 
erals must  either  add  to  the  value  of  the  lands  at  the  time  of  the 
purchase  or  not  If  they  do  not  add  to  the  value,  why  is  the 
railway  company  paying  the  full  value  of  the  lands  not  to  have 
the  surface  minerals  ?  They  may  be  useful  for  the  construction  of 
the  line;  they  are  necessary  for  its  existence.  On  the  other  hand, 
if  they  do  add  to  the  value  of  the  lands,  why  is  the  landowner 
not  to  be  paid  for  them  at  once,  though  he  may  not  be  able  for 
some  time  to  deal  with  them  profitably  when  they  are  separated 

in  ownership  from  the  surface  ?  In  the  case  of  surface  min- 
[*  698]  erals  there  is  no  peculiar  hardship  on  the  landowner  *  in 

taking  a  strip  of  his  minerals.  The  strip  taken  would 
not  prevent  access  to  his  adjoining  minerals  accessible  from  the 
surface  and  usually  got  by  open  working.  If  the  landowner  were 
selling  a  strip  of  his  lands  to  an  ordinary  purchaser  he  would,  in 
ordinary  course,  sell  the  surface  minerals  too,  and  so  get  a  better 
price.  When  he  is  made  to  sell  for  the  benefit  of  the  public,  why 
should  he  be  compelled  to  sell  his  property  in  slices,  and  to  wait 


B.  a  VOL.  xvn.]   sect,  i,  —  mineral  property.  515 

Vo.  8.  —  Lord  Pnnrott  and  XagiitratM  of  Olaigow  t.  Farie,  18  App.  Cm.  698,  689. 

for  half  the  price  (to  take  the  figures  from  the  present  case)  until 
he  is  in  a  position  to  intimidate  his  purchaser  ?  This  seems  very 
unreasonable  and  very  unfair  to  the  landowner,  who  gets  nothing 
by  way  of  compensation  if  the  Act,  as  interpreted  by  the  re- 
spondent, be  honestly  carried  out  But  I  must  say  I  much  doubt 
whether  the  Act  so  interpreted  could  be  carried  out  honestly. 
There  is  no  difficulty  in  valuing  lands  on  the  assumption  that  they 
contain  no  mines.  But  there  would,  I  think,  be  considerable 
difficulty  in  arriving  fairly  at  the  value  of  lands  required  for  a 
railway,  treating  them  merely  as  so  much  surface,  not  entitled  to 
any  right  of  support,  and  as  separated  for  the  purpose  of  valuation 
from  such  ordinary  constituents  of  the  subsoil  as  gravel,  clay,  and 
stone.  If  the  decision  under  appeal  be  upheld,  railway  companies 
may  no  doubt  protect  themselves  in  future  purchases.  But  I  sus- 
pect that  in  many  cases  of  past  sales  a  railway  company  would  be 
called  upon  to  pay  over  again  for  what  it  has  bought  and  paid  for 
long  ago. 

It  was  said  that  unless  the  word  *  mines  *  be  held  to  include 
surface  minerals  railway  companies  may  be  exposed  to  the  risk  of 
having  the  safety  of  their  works  endangered  by  the  removal  of 
clay  and  gravel,  and  other  surface  minerals,  in  the  immediate 
proximity  of  their  lands.  The  answer  is,  that  railway  companies 
must  judge  for  themselves  what  extent  of  land  is  required,  and 
take  sufficient  to  ensure  the  stability  of  their  works  against  acci- 
dents which  can  readily  be  foreseen  when  the  nature  of  the  subsoil 
is  known. 

I  desire  to  base  my  judgment  on  what  seems  to  me  to  be  the 
plain  meaning  of  the  words  of  the  Act ;  but  at  the  same  time  it  is 
satisfactory  to  find  that  the  result  is  consistent  with  what  may  be 
presumed  to  have  been  the  intention  of  Parliament,  and  not  likely 
to  lead  to  inconvenient  consequences. 

*For  these  reasons,  I  am  of  opinion  that  the  inter-  [*699] 
locutor  under  appeal  should  be  reversed. 

Interlocutors  appealed  from  reversed  ;  interlocutor  of  the  Lord 
Ordinary  of  the  16th  of  December,  1885,  restored;  the  re- 
sponderU  to  pay  to  the  appellants  their  costs  in  the  Court 
"below  and  in  this  House, 

Lords'  Journals,  10th  August,  1888. 


616  MINES  AND  MINERALS. 


Ho.  9.  —  Midland  Bailwmy  Oompany,  &o.  y.  BoUnMrn,  15  App.  Cat.  19,  90. 

Midland  Eailway  Company  and  Kettering,  Thrapston,  and  Hunting- 
don Bailway  Company  v.  Bobinaon. 

15  App.  Cas.  19^6  (a.  c.  59  L.  J.  Ch.  442). 

[19]  Railway  Company,  —  Mines  and  Minerals  under  or  near  BaUtoay.  —  Ifiti- 
erals  got  by  quarrying. — lAmesUme, — Notice  by  Owner  of  Intention 
to  work,  --Bailways  Clauses  Act,  1845  (8  <^  9  Vict.,  e.  20}^  ss.  77,  78,  79. 

The  "  mines  of  coal,  ironstone,  slate,  and  other  minerals"  which  sect.  77  ol 
the  Railways  Clauses  Act,  1845,  excepts  out  of  the  conveyance  to  the  railway 
company,  and  the  ''  mines  or  minerals  *'  under  the  railway,  or  within  the  speci- 
fied distance,  which  sect.  78  empowers  the  owner  to  give  notice  of  his  intention 
to  work,  include  not  only  beds  and  seams  of  minerals  got  by  underground  work- 
ing, but  also  such  as  can  only  be  worked,  and  according  to  the  custom  of  the 
district  would  be  properly  worked,  by  open  or  surface  operations. 

So  held  (affirming  the  decision  of  the  Court  of  Appeal)  by  Lords  Herschell 
and  Watson  :  Lord  Macnaghten  dissenting  and  retaining  the  opinion  he 
expressed  in  Lord  Provost  of  Glasgow  v.  Farie  (18  App.  Cas.  657). 

To  justify  an  owner  in  giving  suck  a  notice  it  is  not  necessary  that  be  should 
intend  to  work  the  minerals  himself,  but  there  must  be  a  real  and  bond  fide 
desire  to  work  either  by  himself  or  by  his  lessees  or  licensees. 

Limestone  is  a  mineral  within  the  meaning  of  the  above  sections. 

In  1865  the  Kettering,  Thrapston,  and  Huntingdon  Eailway 
Company  purchased  under  their  Act  of  1862  from  the  respondent's 
predecessor  certain  portions  of  his  lands  in  Northamptonshire. 
The  Act  incorporated  the  Railways  Clauses  Act,  1845.  The  con- 
veyance contained  no  special  reference  to  mines  or  minerala 
Through  these  lands  (for  about  a  mile  and  a  half)  the 
[*  20]  company  *  made  their  railway  which  the  Midland  Eailway 
Company  afterwards  acquired  statutory  power  to  work. 

On  the  25th  of  January,  1886,  the  respondent  gave  the  Ketter- 
ing, &c.  Company  notice  under  sect  78  of  the  Eailways  Clauses 
Consolidation  Act,  1845,  that,  as  owner  of  the  mines  and  minerals 
consisting  of  ironstone,  limestone,  and  certain  other  substances 
lying  under  portions  of  the  railway  and  adjoining  lands  as  shown 
on  a  plan,  he  was  desirous  of  working  such  mines  and  minerals 
and  intended  to  work  them  after  the  expiration  of  thirty  days 
from  the  service  of  the  notice.  Negotiations  having  failed,  the 
appellants  brought  this  action  for  an  injunction  to  restrain  the  re- 
spondent, his  servants,  agents,  and  workmen,  from  working  the 
mines  and  minerals  described  in  the  notice,  so  as  to  injure  the 
railway  and  works. 


B.  a  VOL.  XVIL]  sect.  I.  —  MINERAL  PROPERTY.  517 

Vo.  9.  —  Kidland  Bailwmy  Company,  &o.  ▼.  BoUnson,  15  App.  Caf .  20,  81. 

At  the  trial  before  Chitty,  J. ,  it  appeared  that  under  the  por- 
tions of  the  railway  and  adjoining  lands  referred  to  in  the  notice 
were  beds  of  ironstone  and  limestone  at  depths  varying  from  six  to 
thirty-six  feet.  Portions  of  the  beds  under  the  lands  adjoining 
the  railway  had  been  leased  by  the  respondent  to  a  coal  and  iron 
company.  As  to  the  rest  of  the  beds,  both  those  under  the  rail- 
way and  those  under  adjoining  lands,  there  was  evidence  that  the 
respondent  bond  fide  intended  to  work  the  minerals  by  his  lessees 
or  licensees.  The  custom  in  that  district  was  to  work  ironstone 
and  limestone  by  open  or  surface  operations. 

Chitty,  J. ,  dismissed  the  action,  and  that  decision  was  afl&rmed 
by  the  Court  of  Appeal  (Cotton,  Lindley,  and  Lopes,  L.  JJ.),  37 
Ch.  D.  386. 

May  2,  3,  13.  Eigby,  Q.  C,  and  Sir  A.  Watson  (Beale,  Q.  C, 
and  W.  Baker  with  them)  for  the  appellants :  — 

The  ironstone,  limestone,  and  other  substances  referred  to  in  the 
respondent's  notice  are  not  '^  mines  and  minerals  "  within  the 
meaning  of  the  Railways  Clauses  Consolidation  Act,  1845,  sect. 
77  and  following  sections.  First,  because  they  are  to  be  got  by 
open  quarrying  instead  of  underground  workings.  Upon  this  point 
the  judgment  of  Lord  Macnaghten,  in  Lord  Provost  of  Glasgow 
V.  Paris,  13  App.  Cas.  657,  687  (p.  504,  ante),  represents  the 
appellants'  contention.  The  statutory  provisions  in  that 
case  do  not  materially  diflfer  from  *  those  of  the  Eailways  [*  21] 
Clauses  Act.^      The  original    and    fundamental    idea  of 

1  The  Railways  Clanses  Act,  1845  (8  &  9  therewith,  or  within  the  prescribed  dis- 

Yict.,  c.  20),  enacts- as  foUows: —  tance,  or,  where  no  distance  shall  be  pre- 

'*  And  with  respect  to  mines  lying  under  scribed,  forty  yards  therefrom,  be  desiroos 

or  near  the  railway,  be  it  enacted  as  fol-  of  working  the  same,  snch  owner,  lessee, 

lows: —  or  occupier  shall  give  to  the  company 

**  77.  The  company  shall  not  be  entitled  notice  in  writing  of  his  intention  so  to  do 

to  any  mines  of  coal,  ironstone,  slate,  or  thirty  days  before  the  commencement  of 

other  minerals  ander  any  land  purchased  working ;  and  npon  the  receipt  of  snch 

by  them,  except  only  snch  parts  thereof  as  notice  it  shall  be  lawful  for  the  company 

shall  be  necessary  to  be  dag  or  carried  to  cause  snch  mines  to  be  inspected  by  any 

away  or  nsed  in  the  construction  of  the  person  appointed  by  them  for  the  purpose ; 

works,  unless  the  same  shall  have  been  and  if  it  appear  to  the  company  that  the 

expressly  purchased ;  and  all  such  mines,  working  of  such  mines  or  minerals  is  likely 

excepting  as  aforesaid,  shall  be  deemed  to  to  damage  the  works  of  the  railway,  and  if 

be  excepted  out  of  the  conveyance  of  such  the  company  be  willing  to  make  compen- 

lands,  unless  they  shall  have  been  expressly  sation  for  such  mines  or  any  part  thereof 

named  therein  and  conveyed  thereby."  to  such  owner,  lessee,  or  occupier  thereof, 

"  78.  If  the  owner,  lessee,  or  occupier  then  he  shall  not  work  or  get  the  same ; 

of  any  mines  or  minerals  lying  under  the  and  if  the  company  and  such  owner,  lessee, 

xailway,  or  any  of  the  works  connected  or  occupier  do  not  agree  as  to  the  amount 


518  MIKES  AND  MINERALS. 


Ho.  9.  —  Midlaad  Bailway  Company,  &0.  v.  Bobiiison,  15  App.  Cas.  81,  22. 

*  mines  *  is  that  of  an  underground  working,  in  the  first  instance 
for  the  purpose  of  attacking  fortifications  and  thence  applied  to 
the  getting  of  underground  minerals.  In  English  law  the  word 
"  mines  '  is  exclusively  connected  with  underground  workings. 
This  is  clearly  the  meaning  intended  by  the  Railways  Clauses 
Act.  The  heading  of  this  group  of  sections  is  "  with  respect  to 
mines  lying  under  or  near  the  railway.  *  The  power  to  inspect 
"  mines  "  given  by  sect.  77  would  not  be  necessary  in  the  case  of 
quarries  or  open  workings,  for  they  would  be  visible,  and  the 
company  can  inspect  their  own  line  at  any  time.     Nor  can  the 

meaning  of  "  mines  "  be  extended  by  the  use  of  the  word 
[*  22]  "  minerals.  *     **  Minerals  *  are  mentioned  *  to  meet  the  case 

of  a  licensee  who  has  the  right  to  search  for  minerals  and 
take  them  where  he  finds  them,  but  who  is  never  owner,  occupier, 
or  lessee  of  a  **  mine. "  The  question  whether  mines  and  minerals 
are  within  sects.  77  and  78  depends  upon  the  mode  in  which  the 
minerals  are  got  according  to  the  custom  of  the  country.  Unless 
they  are  in  such  a  position  that  according  to  the  custom  of  the 
country  they  must  be  got  by  underground  working  they  are  not 
within  these  statutory  provisions.  In  very  exceptional  cases  a 
mine  may  crop  out  on  the  surface  but  in  the  mass  it  is  under- 
ground. The  conveyance  to  the  company  passes  not  a  wayleave 
but  the  actual  surface.  The  Legislature  cannot  have  intended  to 
give  the  landowner  leave  to  break  up  the  railway  line  by  quarry- 
ing. That  is  the  inevitable  result  of  aboveground  working,  whereas 
in  underground  working,  though  that  result  may  happen,  it  is  not 
inevitable,  and  in  most  cases  does  not  happen.  The  distinction, 
between  mines  and  quarries  is  clearly  pointed  out  in  DarviU  v. 
Roper,  3  Dr.  294,  by  Kindersley,  V.  C,  whose  decision  is  a 
strong  authority  for  the  appellants ;  and  see  Bell  v.  Wilson,  2  Dr. 
&  Sm.  395,  400,  L.  R  1  Ch.  303,  308.  Old  Inclosure  Acts 
constantly  emphasise  the  distinction  by  reserving  "  mines  and  quar- 
ries. "  The  judgment  of  Kay,  J. ,  in  Midland  Ry,  Co,  v.  Haunck^ 
wood,  &c.   Co.,  20  Ch.   D.   552,  is  the  only  decision  at  variance 

of  such  compensation,  the  same  shall  be  work  the  said  mines  or  any  part  thereof 

settled  as  in  other  cases  of  disputed  com-  for  which  the  company  shall  not  have 

pensation."  a^eed  to  pay  compensation,  so  that  the 

"79.  If  before  the  expiration  of  such  same  be  done  in  a  manner  proper  and  neces- 

thirty  days  the  company  do  not  state  their  sary  for  the  beneficial  working  thereof, 

willingness  to  treat  with  such  owner,  les-  and   according  to  the  usual  manner  of 

see,  or  occupier  for  the  payment  of  such  working  such  mines  in  the  district  where 

compensation,  it  shaU  be  lawful  for  him  to  the  same  shall  be  situate.  .  .  ." 


K.  C.  VOL.  XVIL]  SBCT.  L  —  MINERAL  PROPERTY.  519 

Ho.  9.  —  Midland  Bailwmy  Company,  &0.  t.  BoUnson,  15  App.  Caa.  22,  28. 

with  the  appellants'  contention.  The  decision  in  Lord  Provost  of 
Glasgow  V.  Farie,  13  App.  Cas.  657  (p.  485,  ante),  where  the 
authorities  were  fully  discussed,  did  not  conclude  the  present 
pointy  though  the  dicta  of  Lords  Watson  and  Herschell  are  no 
douht  against  the  present  appellants. 

Secondly,  the  respondent's  notice  was  had  for  more  than  one 
reason.  Admittedly  the  respondent  did  not  intend  to  work  hy 
himself ;  if  at  all  it  was  by  lessees  or  licensees.  But  the  notice 
meant  by  the  Act  is  a  notice  by  the  person  who  intends  to  work. 
In  the  words  of  Lord  Cairns  in  Smith  v.  Great  Western  Ry.  Co. , 
3  App.  Cas.  165,  178,  179,  the  notice  can  only  be  given  by  a 
person  "  who  has  a  right  to  work  and  who  is  prepared  to  work  the 
mines,*  and  he  is  the  person  to  whom  the  company  must  give  the 
counter-notice.  The  respondent's  notice  was  also  bad 
because  there  was  no  bond  *  fide  intention  to  work  either  [*  23] 
personally  or  by  others,  for  the  materials  could  not  be  got 
at  a  profit  It  is  manifest  that  this  was  so  as  to  a  great  part  of 
the  area  included  in  the  notice,  and  a  notice  which  is  bad  as  to 
part  is  bad  as  to  the  whole.  The  Legislature  could  not  have  in- 
tended to  give  an  owner  the  power  by  notice  to  compel  a  railway 
company  to  purchase  the  minerals,  when  there  was  no  real  inten- 
tion of  working.  See  per  Lord  Watson  in  Dixon  v.  Caledonian^ 
(fee.  Ry.  Cos,,  5  App.  Cas.  820,  839.  The  intention  here  was 
nothing  more  than  to  give  the  notice  and  was  merely  vexatious. 
It  is  no  answer  to  say  that  the  compensation  awarded  by  the  jury 
would  be  very  trifling.  Groing  to  arbitration  is  an  expense,  and 
in  any  case  half  that  expense  falls  by  the  Act  on  the  company^ 
possibly  the  whole. 

Sir  Horace  Davey,  Q.  C. ,  and  Eomer,  Q.  C.  (Gye  and  William 
Radclifife  with  them),  for  the  respondent: — 

The  present  case  is  free  from  the  diflBculty  in  Lord  Provost  of 
Glasgow  v.  Farie,  13  App.  Cas.  657,  673,  680  (p.  485,  ante),  for 
"  mines  of  ironstone  **  are  expressly  mentioned  in  the  Railways 
Clauses  Act.  The  benefit  intended  by  that  Act  to  the  railway 
company  applies  as  much  to  surface  minerals  as  to  underground 
minerals.  In  sects.  77  and  78  mines  and  minerals  must  have  the 
same  meaning.  If  minerals  got  by  quarrying  are  not  within  the 
exception  of  sect  77,  sect  78  does  not  apply  to  such  minerals, 
and  the  railway  company  would  not  be  entitled  to  the  benefit  given 
by  that  section,  and  it  will  be  necessary  for  the  company  to  ac- 


520  MINES  JlSB  minerals. 


H<h  9.  — Midland  Bailway  Company,  &c.  ▼.  BoMnioa,  16  App.  Caa.  28,  24. 

quire  in  the  first  instance  much  more  land  than  is  needed  for  the 
line,  for  if  they  do  not  acquire  it  within  the  period  of  compulsory 
powers  they  never  can.  In  these  sections  "  mines  '  mean  beds, 
seams,  veins,  and  strata  of  something  not  yet  got.  A  mine  is  a 
body  of  minerals.  The  question  cannot  depend  on  the  local 
[*  24]  custom  of  working,  for  if  so  the  mines  might  *  be  in  the 
conveyance  at  one  time  and  not  at  another,  according  as  the 
custom  varied.  Again,  the  question  might  not  arise  till  long 
after  the  date  of  the  conveyance,  when  the  custom  could  not  be 
ascertained.  In  the  case  of  slates  the  custom  in  some  places  is  to 
get  both  by  open  and  by  underground  workings.  How  can  the 
right  depend  on  the  custom  in  such  a  case  ?  or  again,  where  the 
coal  or  iron  crops  out  at  the  surface  ?  As  Lord  Cranworth  said 
in  Great  Western  By.  Co.  v.  Bennett,  L.  R  2  H.  L.  27,  40,  the 
Legislature  intended  by  these  sections  to  create  a  new  code  as  to 
the  relations  between  ownera  and  companies;  when  the  owner 
wants  to  work  the  mines  he  is  put  in  the  same  position  as  if  he 
had  never  sold  any  part  of  the  surface ;  on  the  other  hand,  the  rail- 
way has  the  benefit  of  compelling  the  owner  to  sell  that  which  is 
necessary  for  the  purpose  of  the  railway.  As  large  an  application 
as  possible  should  be  given  to  the  mutual  benefits  intended  by 
this  code.  Ooce  infringe  the  wholesome  principles  laid  down  in 
that  case,  the  result  is  confusion.  The  questions  as  to  the  right 
of  support  and  subsidence  are  dealt  with  in  that  case  and  in  the 
cases  there  cited.  There  is  no  difference  in  principle  between 
stripping  off  the  surface  and  digging  out  the  minerals,  and  work- 
ing underground  witiiin  six  feet  of  the  surface  and  so  letting  the 
railway  down. 

[Lord  Macnaghten  referred  to  Pountney  v.  Clayton,  11  Q.  B. 
D.  820,  833,  where  Bbett,  M.  R,  said,  **  Even  where  the  mines 
are  to  be  deemed  excepted  out  of  the  conveyance  to  the  railway 
company,  any  one  who  by  digging  the  land  and  not  by  the  opera- 
tion of  mining,  were  to  let  down  the  surface  on  which  was  the 
railway,  would  be  a  trespasser,  as  he  would  be  digging  on  the 
land  of  the  railway  company. "] 

Where  the  mines  and  minerals  are  reserved  and  open  quarrying 
is  the  usual  custom,  the  right  of  so  getting  the  minerals  is  also 
reserved.  If  it  is  necessary  for  the  company  to  have  the  sup- 
port they  must  buy  it  [They  also  discussed  Aspden  v.  Seddon, 
1  Ex.  D.  496;  Davis  v.    Trehame,  6  App.   Cas.  460;  Buchanan 


B.  C.  VOL.  XVn.]         SEOT.  L — MINERAL  PROPERTY.  521 

Ho.  9.  —  Kidland  Bailway  Company,  &o.  ▼.  BoMaion,  16  App.  Cm.  25,  96. 

V.   Andrew,  L   R   2  H.  L.   Sc.   286 ;  *  £arl  of  Jersey  v.    [*  25] 
Heath  Union,  22  Q.  B.  D.  555 ;  and  the  cases  cited  in  Lord 
Provost  of  Glasgow  v.  Farie,  13  App.  Gas.  657.] 

As  to  the  notice,  it  is  said  that  it  was  too  large ;  but  that  was 
for  the  benefit  of  the  railway  company.  No  objection  was  made 
for  fifteen  months,  during  which  negotiations  went  on.  As  for  the 
point  that  the  owner  would  work  by  licensees  and  not  by  himself, 
it  is  for  the  benefit  of  the  railway  company  that  only  one  notice 
should  be  given.  If  the  owner  had  created  new  rights  by  granting 
licenses  the  licensees  would  have  had  to  be  compensated  for  their 
profits,  as  well  as  the  owner  for  his  royalties.  Thus  there  would 
have  been  as  many  arbitrations  as  there  were  licenses,  besides  the 
arbitration  with  the  owner,  and  the  costs  would  have  been  much 
increased.  The  intention  to  work  must  mean  working  by  himself 
or  by  his  agents,  lessees,  or  licensees. 

Eigby,  Q.  C. ,  in  reply,  referred  to  B*  v.  Dunsford,  2  Ad.  &  El. 
668,  as  to  what  was  a  mine  for  poor-rate  purposes. 

The  House  took  time  for  consideration. 

1889.     Dec.  9.     Lord  Herschell  :  — 

My  Lords,  the  main  question  in  this  case  is  whether  certain 
beds  of  ironstone  and  limestone  lying  under  and  near  the  railway 
of  the  appellants  are  their  property  or  the  property  of  the 
respondent 

The  appellant  company,  the  Kettering,  Thrapston,  and  Hunt- 
ingdon Railway  Company,  whose  railway  and  undertaking  are  now 
under  statutory  powers  worked  by  the  other  appellants,  the  Mid- 
land Eailway  Company,  purchased  from  the  respondent's  father 
and  predecessor  in  title,  in  the  year  1865,  certain  land  on  which  a 
portion  of  their  railway  has  been  constructed. 

The  purchase  was  made  by  virtue  of  the  Company's  Act  passed 
in  1862,  which  incorporated  the  Eailways  Clauses  Consolidation 
Act,  1845.  The  grant  of  the  land  contained  no  special  provisions 
relating  to  the  mines  and  minerals  under  the  same.  This  being 
so,  sect  77  of  the  incorporated  Act  operated  to  except 
*  from  the  grant  any  "  mines  of  coal,  ironstone,  slate,  or  [*  26] 
other  minerals,  except  such  parts  thereof  as  were  necessary 
to  be  dug  or  carried  away  or  used  in  the  construction  of  the 
works."  It  is  admitted  that  there  lay  beneath  the  lands  pur- 
chased, at  depths  varying  from  six  to  thirty-six  feet,  beds  of  iron- 
stone  and  limestone,    and   it  is   not    disputed    that    these    are 


522  MINES  AND   MINERALS. 


Ho.  9.  — Kidlaad  Bailway  Company,  &c.  ▼.  BoUnaon,  16  App.  Cai.  26,  S7. 

**  minerals  "  within  the  meaning  of  the  enactment  just  referred  to. 
The  principal  question  for  your  Lordships'  determination  is, 
whether  these  beds  of  ironstone  and  limestone  are  "  mines  of " 
ironstone  and  other  minerals,  according  to  the  true  interpretation 
of  that  enactment,  and  therefore  excepted  from  the  conveyance  to 
the  company. 

I  say  this,  because  although  considerable  difference  of  opinion 
existed  amongst  those  of  your  Lordships  who  were  parties  to  the 
judgment  in  Farie'a  case,  13  App.  Cas.  657  (p.  485,  avie),  I  think 
all  were  agreed  that  the  words  "  mines  of  "  had  relation  not  only  to 
the  word  "  coal, "  but  to  "  ironstone,  slate,  or  other  minerals  *  also. 
The  turning  point,  therefore,  of  the  decision  upon  this  part  of  the 
case  must  be  the  interpretation  to  be  put  upon  the  word  **  mines  " 
in  sect  77  of  the  Eailways  Clauses  Consolidation  Act. 

It  is  contended  on  behalf  of  the  appellants  that  the  word 
**  mines  "  is  to  be  construed  as  applying  only  to  those  minerals 
which,  according  to  the  custom  of  that  part  of  the  country  where 
they  are  situate,  would  ordinarily  be  won  by  underground  work- 
ings, and  that  it  does  not  comprehend  minerals  which,  according 
to  such  custom,  would  be  got  by  surface  operations.  It  is  con- 
tended, on  the  other  hand,  that  the  word  comprehends  all  beds  or 
strata  of  minerals  without  any  reference  to  the  method  of  working 
them. 

I  have  already,  in  Farie^s  case,  expressed  my  opinion  as  to  the 
construction  to  be  put  upon  the  same  words  in  a  very  similar 
enactment  contained  in  the  Waterworks  Clauses  Act.  After  care- 
fully considering  the  able  arguments  addressed  to  your  Lordships 
in  the  present  case,  I  have  seen  no  reason  to  alter  the  conclusion  I 
then  arrived  at  I  desire  only  to  say  that  when  I  stated  that  in 
my  opinion  the  reservation  extended  **  to  all  such  bodies  of  min- 
eral substances  lying  together  in  seams,  beds,  or  strata  as  are  com- 
monly worked  for  profit  and  have  a  value  independent 
[*  27]  *  of  the  surface  of  the  land, "  I  did  not  intend  by  these  latter 
words  to  suggest  that  the  value  of  the  mineral  substances  at 
the  time  of  the  reservation  was  the  test  whether  they  were  reserved 
or  not  I  used  them  in  order  to  emphasise  the  fact  that  it  was  not 
every  scattered  piece  of  mineral  lying  under  the  land  that  could 
be  called  a  "  mine,"  but  only  mineral  substances  lying  in  seams, 
or  beds,  or  strata. 

In  dealing  with  this  case  it  must  be  remembered  that  all  that 


R.  C.  VOL.  XVn.]  SECT.  I.  —  MINERAL  PROPERTY.  523 

Ho.  9.  —  TfUland  Bailwaj  Compaay,  &o.  y.  BoUmon,  16  App.  Oai .  27,  88. 

your  Lordships  have  to  do  is  to  interpret  the  words  of  this  enact- 
ment and  not  to  lay  down  (even  if  it  were  possible)  any  general 
rule  as  to  the  interpretation  of  the  word  "  mines. " 

I  doubt  whether  much  assistance  is  to  be  obtained  from  the  cases 
in  which  a  construction  has  been  put  upon  that  word  in  instru- 
ments embodying  merely  agreements  between  the  parties  to  them, 
unaffected  by  any  statutory  enactment.  In  such  agreements,  in 
the  absence  of  a  distinct  indication  of  the  contrary  intention,  it  is 
always  to  be  assumed  that  the  reserved  mines  are  only  to  be  worked 
in  such  a  manner  as  is  consistent  with  the  surface  remaining 
undisturbed.  And  if  this  be  true  of  minerals  lying  deep  below 
the  surface,  it  would  be  obviously  out  of  the  question  to  permit  it 
to  be  disturbed  by  winning  minerals  which  can  only  be  wrought 
by  surface  operations.  But  in  the  case  of  mines  reserved  under 
sect  77  of  the  Railways  Clauses  Act  the  case  is  diflferent  It  is 
clear  that  the  mines  reserved,  if  not  purchased  by  the  company, 
may  be  so  worked  as  to  interfere  with  the  surface,  the  only  limi- 
tation being  that  the  working  must  be  according  to  the  usual 
manner  of  working  such  mines  in  the  district  where  the  same  are 
situate. 

The  object  of  the  77th  and  following  clauses  was  considered 
and  explained  in  the  Oreat  Western  Ry,  Co.  v.  Bennett,  L.  R  2  H. 
L.  27.  Lord  Cranworth  said :  "  It  was  obviously  the  intention 
of  the  Legislature  in  making  these  provisions  to  create  a  new  code 
as  to  the  relation  between  mine  owners  and  railway  companies 
where  lands  were  compulsorily  taken  for  the  purpose  of  making  a 
railway.  The  object  of  the  statute  evidently  was  to  get  rid  of  all 
the  ordinary  law  on  the  subject,  and  to  compel  the  owner 
to  sell  the  surface,  and  if  any  mines  were  so  near  the  *  sur-  [*  28] 
face  that  they  must  be  taken  for  the  purposes  of  the  railway, 
to  compel  him  to  sell  them,  but  not  to  compel  him  to  sell  any- 
thing more.  The  land  was  to  be  dealt  with  just  as  if  there  were 
no  mines  to  be  considered ;  nothing  but  the  surface. " 

The  effect  of  this  legislation  was  obviously  very  advantageous  to 
the  railway  companies,  and  inflicted  no  wrong  upon  the  owner  of 
the  minerals.  The  company  in  the  first  instance  paid  only  for  the 
surface  of  the  land,  and  for  such  minerals  as  had  to  be  taken  in 
the  making  of  the  railway.  They  enjoyed  the  support  of  the 
imderlying  minerals  for  an  indefinite  term  without  paying  for  it 
The  mineral  owner,  as  I  have  said,  suflfered  no  wrong.     He  still 


524  MINES  AND  MINERALS. 

Ho.  9.  —  Midland  Xailway  Compaiiy^  &e.  ▼.  BoMaioa,  16  App.  Cm.  28,  88L 

letained  the  ownership  of  the  minerals  and  the  right  to  work 
them,  which  was  all  that  he  possessed  before.  The  only  burden 
imposed  upon  him,  if  it  can  be  so  called,  was  that  when  desirous 
of  working  the  mines  he  should  give  the  company  an  opportunity 
of  purchasing  them.  It  appears  to  me  that  these  considerations 
point  to  the  intention  of  the  Legislature  having  been  to  use  the 
word  **  mines  "  in  the  widest  sense  that  can  properly  be  given  to 
it  Why  should  the  Legislature  have  reserved,  and  exempted  the 
company  from  the  necessity  of  purchasing,  beds  of  minerals  lying 
at  such  a  depth  below  the  surface,  or  with  superincumbent  strata  of 
such  a  character  that  the  minerals  would  ordinarily  be  worked  by 
underground  operations,  and  compelled  the  company  at  once  to 
purchase  and  pay  for  beds  of  minerals  which  would,  in  ordinary 
course,  be  won  by  surface  operations?  It  is  urged  that  in  the 
latter  case  the  working  of  the  minerals  would  remove  the  very 
thing  which  the  company  had  bought,  and  directly  interfere 
with  the  existence  of  the  railway.  But  it  must  be  remembered 
that  the  surface  might  be  rendered  just  as  unfit  for  railway  pur- 
poses by  subterranean  workings  as  it  would  be  by  operations 
from  the  surface.  The  learned  counsel  for  the  appellants  asked 
what  the  company  could  be  said  to  have  acquired  by  the  purchase 
of  the  land  if  its  very  surface  could  be  directly  interfered  with  by 
mining  operations  ?  I  fully  feel  the  force  of  this  question  and  the 
diflBculty  which  it  involves.  If  this  difl&culty  were  altogether  got 
rid  of  by  the  construction  contended  for  by  the  appellants,  I  admit 

that  a  strong  ground  would  be  shown  for  yielding  to  their 
[*  29]  contention.      *  But  it  was  properly  conceded  by  the  learned 

counsel  for  the  appellants  that  this  was  not  the  case.  Where 
a  "  mine, "  within  the  meaning  attributed  to  that  word  by  them, 
cropped  out  at  or  near  the  surface  on  a  part  of  the  railway,  the 
same  difficulty  would  arise.  For  it  was  not  denied  that  this  would 
be  part  of  the  mine,  and  therefore  within  the  reservation.  So, 
too,  although  a  seam  of  minerals  may  lie  at  such  a  depth  beneath 
the  surface  of  the  land  purchased  that  it  would  ordinarily  be  got 
by  underground  workings,  yet  owing  to  the  works  necessary  for 
making  the  railway,  be  it  a  cutting  or  tunnel,  the  minerals  may 
come  to  form  the  surface  on  which  the  railway  rests.  Such  a  seam 
would  be  a  "  mine  "  within  the  construction  suggested,  and  there- 
fore reserved  to  the  landowner,  together  with  the  right  to  work 
it,  and  yet  the  same  question  might  be  asked.  Can  it  have  been 


K.  a  VOL.  xvn.]   sect,  l  —  minbral  propebty.  525 

Vo.  9.  —  Midland  Bailway  Company,  &c.  ▼.  BoUnaon,  16  App.  Caa.  29,  80. 

intended  that  such  owner  should  have  the  right  to  take  away  the 
surface  upon  which  the  rails  are  laid  ? 

It  seems  to  me,  too,  that  the  appellants'  construction,  if  adopted, 
would  of  itself  give  rise  to  serious  difficulties  and  inconveniences. 
When  land  was  to  be  taken  for  the  purposes  of  a  railway,  it  would 
be  necessary  to  ascertain  what  minerals  lay  beneath  the  land, 
which  would  not,  according  to  the  usual  manner  of  working  in  the 
district,  be  got  by  underground  workings.  For  these  would  be- 
come the  property  of  the  railway  company,  and  their  value  must, 
of  course,  be  taken  into  account  in  fixing  the  price  to  be  paid  for 
the  land  purchased.  And  further,  the  question  what  minerals 
were  reserved,  and  therefore  whose  the  property  in  them  was, 
might  have  to  be  determined  many  years  after  the  purchase  by  an 
inquiry,  what  was  the  usual  mode  of  working  in  the  district  at 
the  time  of  the  conveyance,  which  perhaps  might  not  have  been 
the  same  as  at  the  time  when  the  controversy  arose.  And  there 
are  some  cases  where  it  might  be  almost  impossible  to  say  what 
minerals  were,  and  what  were  not,  reserved.  Beds  of  slate,  I  be- 
lieve, exist  which  have  been  worked  both  by  surface  workings  at 
the  face,  and  by  levels  driven  underground.  How  much  of  such 
seams  of  slate  would  be  reserved,  and  how  much  fall  to  be  pur- 
chased by  the.  company,  would,  I  think,  on  the  contention  of  the 
appellants,  be  a  question  almost  impossible  of  solution. 

But  besides  this,  under  sect  78,  the  owner  of  mines  not 
under  *the  railway,  but  within  the  prescribed  distance  [*30] 
from  it,  is  bound  to  give  notice  before  working,  so  that 
the  company  may  have  the  option  of  purchasing.  If  the  word 
*  mines  "  bear  the  meaning  I  have  attributed  to  it,  the  company 
need  not  concern  themselves  about  the  existence  of  minerals, 
whether  near  the  surface  or  not,  within  the  prescribed  distance- 
But  if  it  is  to  have  the  more  limited  construction  contended  for  by 
the  appellants,  it  would  sometimes  be  necessary  for  the  company 
not  only  to  ascertain  what  minerals  lie  under  the  lands  adjoining 
any  embankments  or  other  works  which  would  be  injured  by  the 
working  of  what  I  will  call  surface  minerals,  but  also  to  purchase 
these  minerals,  and  the  land  under  which  they  lie,  for  the  protec- 
tion of  their  works  from  subsidence.  For  the  common-law  right 
of  adjacent  support  does  not  extend  to  the  increased  burden  caused 
by  buildings  or  other  works,  but  is  limited  to  that  which  the  land 
requires  in  its  natural  state.     And  this  is  all  the  railway  company 


526  MINES  AND  MINERALS. 


Vo.  9.  —  MidUnd  Bailway  Compaay,  &c.  ▼.  BoUnion,  16  App.  Oai .  80,  31. 

would  be  entitled  to  apart  from  the  implied  grant  of  the  right  to 
all  necessary  support  for  the  railway  works  from  adjacent  land  in 
the  same  ownership  as  that  conveyed  to  the  company  for  the  pur- 
pose of  the  railway. 

.  Seeing,  then,  that  the  difficulties  pointed  out  by  the  appellants 
are  not  avoided  by  adopting  their  view,  and  that  its  adoption 
would  give  rise  to  the  difficulties  and  inconveniences  I  have 
pointed  out,  I  tiiink  your  Lordships  will  do  well  to  construe  the 
language  used  with  the  aid  of  the  light  that  is  thrown  upon  it  by 
the  intention  of  the  Legislature  as  manifested  in  the  provisions 
relating  to  mines  and  minerals  lying  under  and  near  the  railway. 
And  the  considerations  upon  which  I  have  dwelt  point  to  the  con- 
clusion I  have  already  indicated,  that  the  widest  construction  ought 
to  be  given  to  the  word  "  mines  "  which  is  possible,  without  im- 
properly straining  the  language  used. 

Is  there  anything  in  the  terms  of  the  enactment  compelling  the 
narrower  construction  for  which  the  appellants  contend  ?  I  think 
not.  Applying  one's  self  to  the  consideration  of  the  word  **  mines,  * 
apart  from  the  document  or  context  in  which  it  is  found,  I  cannot 
think  that  its  natural  meaning  imports  such  beds  or  strata  of  min- 
erals only  as  are  ordinarily  got  by  underground  working.  If 
[*  31]  aid  is  sought  from  the  lexicons,  and  the  definitions  *  there 
given  are  reviewed,  I  do  not  think  that  they  afford  support 
to  such  a  construction.  Dr.  Johnson,  I  may  observe,  defines  a 
**  quarry  "  as  a  **  stone  mine. "  I  see  no  reason  to  doubt  the  sound- 
ness of  the  view  I  expressed  in  Farie's  case,  13  App.  Cas.  657  (p. 
485,  ante)y  that  in  ordinary  parlance  the  word  "  mines  *  is  not  used 
to  describe  unwrought  beds  of  minerals.  I  think  it  is  ordinarily 
applied  only  to  beds  of  minerals  which  are  being  or  have  been 
wrought ;  but  in  the  enactment  with  which  we  are  dealing  it  is 
obviously  impossible  so  to  interpret  the  word.  I  have  already 
pointed  out  why  I  think  the  meaning  attributed  to  the  word 
by  the  Courts,  when  contracts  between  individuals  have  been 
under  consideration,  does  not  afford  a  guide  for  construing  this 
enactment. 

These  are  my  reasons  for  adhering  to  the  construction  which  I 
put  upon  the  words  "  mines  of  coal,  ironstone,  slate,  or  other  min- 
erals "in  Farie's  case. 

So  far  I  have  dealt  with  the  case  apart  from  authority ;  but  it 
is  not  unworthy  of  consideration  that  the  decided  cases  support 


R.  C.  VOL.  XVU.]  SECT,  L  — MINERAL  PROPERTY.  527 

Ho.  9.  — Xidlaaid  Railway  Companj,  &o.  ▼.  BobinMm,  15  App.  Caa.  81,  88. 

the  view  adopted  by  the  Court  below.  In  the  case  of  the  Great 
Western  By.  Co,  v.  Bennett,  L.  E.  2  H.  L.  27,  Lord  Chelmsford 
said,  "  That  this  section  reserves  to  the  mine  owner  all  the  min- 
erals, however  near  they  may  be  to  the  surface,  unless  the  company 
chooses  to  purchase  them,  appears  very  clearly  from  the  exception 
of  '  the  parts  necessary  to  be  dug  or  carried  away  or  used  in  the 
construction  of  the  company's  works,'  as  these  will,  of  course,  be 
the  minerals  lying  nearest  to  the  surface. "  I  admit  the  force  of 
the  criticism  of  the  appellants'  counsel,  that  the  words  quoted  by 
Lord  Chelmsford  do  not  necessarily  lead  to  the  inference  he  drew 
from  them,  inasmuch  as  in  making  the  railway  it  might  be  neces^ 
sary  in  cuttings  or  tunnels  to  carry  away  or  use  minerals  lying 
far  below  the  surface.  But  the  fact  remains  that  the  noble  and 
learned  Lord  intimated  the  opinion  that  all  the  minerals,  however 
near  they  might  be  to  the  surface,  were  reserved.  And  the  other 
learned  Lords  who  took  part  in  the  judgment  not  only  do  not 
dissent  from  Lord  Chelmsford's  view,  but  use  language  which,  I 
think,  shows  that  they  shai^d  it.  An  opinion  thus  expressed 
ought  not  to  be  lightly  departed  from.  It  is  impossible  to  say 
how  many  transactions  in  the  last  twenty  years  may  have  been 
carried  through  on  this  view  of  the  law.  There  has  been 
no  *  judicial  expression  of  a  contrary  opinion  that  I  am  [*  32] 
aware  of  until  quite  recently  in  Farie*s  case,  13  App.  Cas. 
657  (p.  485,  ante),  whilst  both  in  this  country  and  in  Scotland 
the  point  has  been  actually  decided  in  accordance  with  the  view 
taken  by  the  learned  Judges  in  the  present  case.  Indeed,  in  the 
case  of  the  Caledonian  By,  Co,  v.  Dixon  (see  5  App.  Cas.,  at  p. 
823),  where  the  point  was  decided  against  the  company  by  the 
Court  of  Session,  although  the  case  was  brought  to  your  Lord- 
ships' House  by  way  of  appeal  upon  another  point,  the  railway 
company  did  not  seek  for  a  review  of  the  decision  of  the  Court  of 
Session  on  the  question  now  in  controversy. 

It  remains  for  me  to  consider  tjie  subsidiary  contention  of  the 
appellants,  that  the  respondent  was  not  in  the  present  case  **  de- 
sirous of  working  "  the  mines.  The  first  objection  raised  is  that 
he  had  no  intention  of  working  them  himself,  that  is,  by  his  own 
servants,  but  only  by  lessees  or  licensees.  I  agree  with  the  Court 
below  that  this  objection  cannot,  upon  the  true  construction  of  the 
section,  be  sustained.  Then  it  was  urged  that  there  was  no  real 
desire  to  work,  but  only  to  compel  the  appellants  to  purchase,  the 


628  MINES  AND  MINERALS. 


Vo.  9.  —  mdlaod  BaUway  Gompaay,  &«.  ▼.  BoUnwa,  15  App.  Cai.  82,  S8. 

minerals.  I  quite  concur  with  what  Cotton,  L.  J.,  said,  that 
"  there  must  be  not  only  an  expression  of  desire,  but  an  honest 
actual  existence  of  the  desire  to  work  either  by  himself  or  his 
lessees,  to  justify  an  owner  in  giving  such  a  notice.  If  he  gave 
the  notice  when  it  was  obvious  that  there  were  no  minerals,  or 
that  he  could  not  possibly  intend  either  to  let  or  work  them  him- 
self, that  would  be  vexatious,  and  the  Court  would  not  allow  that 
to  be  acted  upon. "  But  in  the  present  case  the  learned  Judge  who 
tried  the  action  and  the  Court  of  Appeal  have  come  to  the  conclu- 
sion that  there  was  a  real  and  bond  fide  desire  to  work.  After 
considering  the  arguments  insisted  upon  by  the  learned  counsel  for 
the  appellants  I  find  myself  unable,  upon  this  point,  to  differ  from 
the  Courts  below.  I  am  not  a  little  influenced  by  the  fact  that  the 
minerals  on  either  side  of  the  railway  in  the  immediate  neigh- 
bourhood of  those  now  in  question  have  actually  been  gotten  by 
lessees  of  the  respondent  It  is  urged  that  the  minerals  under  the 
railway  were  left  unworked,  because  the  respondent  thought  he 
had  no  right  to  them.  This  matters  not  as  regards  the  point  I  am 
now  concerned  with.     Indeed,  it  seems  to  me  to  make  the  case  of 

the  respondent  stronger. 
[*  33]       *  For  the  reasons  I  have  submitted  to  your  Lordships  I 
think  the  judgment  appealed  from  should  be  afi&rmed,  and 
the  appeal  dismissed. 
Lord  Watson  :  — 

My  Lords,  I  also  am  of  opinion  that  both  Courts  below  have 
come  to  a  right  conclusion  in  this  case,  and  that  the  judgment  of 
the  Court  of  Appeal  sustaining  the  decision  of  Chitty,  J. ,  ought 
to  be  affirmed. 

Questions  of  nicety  have  arisen,  and  may  yet  arise,  as  to  the 
particular  substances  meant  to  be  included  in  the  general  words 
*  or  other  minerals, "  as  these  occur  in  sect  77  of  the  English,  and 
sect  70  of  the  Scotch,  Eailways  Clauses  Act  of  1845.  I  do  not 
think  that  any  substantial  question  of  that  kind  is  presented  in 
this  case.  The  substances  to  which  the  argument  at  the  bar  has 
been  confined  are  "  ironstone, "  which  is  one  of  the  minerals  spe- 
cially excepted  in  these  clauses,  and  "  limestone, "  which  appears 
to  me  to  be  so  much  ejusdem  generis  with  the  minerals  enumerated 
that  it  must  necessarily  be  held  to  come  within  the  description 
of  "  other  minerals. " 

The  real  point  of  difficulty  which  this  case  presents  is  due  to  the 


R.  C.  VOL.  XVIL]  sect.  L  —  MINERAL  PROPERTY.  529 

Vo.  9.  —  Xidlaad  BaUway  Gompaayy  &o.  ▼.  BoUmon,  16  App.  Caa.  83,  34. 

circumstance  that  the  statutory  exception  is  not  of  "  minerals  * 
but  of  "  mines  of  minerals.  *  It  is  mutually  conceded  that  the 
ironstone  and  limestone  beneath  the  appellants'  railway,  whfch 
the  respondent  has  notified  his  intention  to  excavate,  can  only  be 
worked,  and  according  to  the  custom  of  the  district  would  be  prop- 
erly worked,  by  open  cast.  But  the  appellants  maintain  that, 
according  to  the  sound  construction  of  the  Act  of  1845,  no  minerals 
are  reserved  to  the  landowner  except  such  as  are  capable  of  being 
"mined,"  using  that  term  in  its  strictest  sense,  as  signifying 
operations  conducted  wholly  underground,  and  not  open  to  the 
light  of  day.  That  is  a  proposition  which  your  Lordships  had 
recently  occasion  to  consider  in  Lord  Provost  of  Glasgow  v.  Farie, 
13  App.  Cas.  657  (p.  485,  ante).  In  that  case  I  came  to  the  con- 
clusion that  every  substance,  being  a  mineral  within  the  meaning 
of  these  clauses,  is  reserved  to  the  owner  irrespective  of  the 
method  by  which  it  may  be  wrought.  I  there  said  that, 
in  the  enactments  *  of  sect.  18  of  the  Waterworks  Clauses  [*  34] 
Act,  1847  (which  are  in  the  same  terms  with  sects.  77  and 
70  of  the  Eailways  Clauses  Acts  of  1845),  the  word  "  mines  "  must 
be  taken  to  signify  "  all  excavations  by  which  the  excepted  min- 
erals may  be  legitimately  worked  and  got "  I  do  not  think  it  is 
necessary  to  say  more  than  that  I  adhere  to  the  opinions  which  I 
expressed  in  Lord  Provost  of  Glasgow  v.  Farie,  13  App.  Cas.  657 
(p.  492,  et  seq,,  ante).  On  consideration  I  think  it  may  be  more 
accurate  to  say  that  the  expression,  **  mines  of  coal,  &c. , "  is  used 
by  the  Legislature  to  denote  the  minerals  m  situ,  without  reference 
to  the  manner  in  which  they  can  be  worked ;  but  the  result  is,  in 
either  view,  the  same  and  rests  upon  the  same  considerations.  I 
concur  in  the  reasons  which  have  been  assigned  for  his  judgment 
by  my  noble  and  learned  friend  (Lord  Herschell).  After  all, 
this  is  a  mere  question  as  to  the  period  of  time  at  which  railway 
companies  must  acquire  and  pay  for  the  subjacent  and  adjacent 
minerals  necessary  for  the  support  of  their  lines.  The  general 
policy  of  the  Eailways  Clauses  Acts,  and  their  special  provisions, 
alike  appear  to  me  to  point  to  the  result  at  which  the  noble  and 
learned  Lord  has  arrived. 

In  my  opinion  the  appellants  have  failed  to  substantiate  their 
averment  that  the  respondent  does  not  entertain  a  real  and  bond 
fide  intention  of  working  the  minerals  in  question,  and  I  therefore 
concur  in  the  judgment  which  has  been  moved. 
VOL.  XVII.  —  34 


530  MINES  AND   MINERALS. 

Vo.  9.  —  Kidlaad  Baflway  Ckmipany,  &o.  ▼.  BoMaioa,  16  App.  Cm.  84,  86. 

Lord  Macnaghten  :  — 

My  Lords,  the  principal  question,  if  not  the  only  question,  in 
this  case  is,  What  is  the  meaning  of  the  word  "  mines  "  as  used  in 
sect  77  of  the  Railways  Clauses  Consolidation  Act,  1845,  and  in 
the  heading  to  that  part  of  the  Act  ?  On  this  question  I  have  the 
misfortune  to  differ  from  your  Lordships.  I  abide  by  the  views  I 
expressed  in  Farie's  case.  I  continue  to  think  that  the  word  was 
used  both  in  the  heading  and  in  the  section  in  the  sense  which,  if 
I  am  not  mistaken,  every  English  Judge  who  had  occasion  to  con- 
sider the  meaning  of  the  word  before  Farie's  case  was  decided  took 
to  be  its  ordinary  signification.  It  seems  to  me  that  on  such  a 
point  the  opinions  of  such  Judges  as  Kindersley,  V.  C, 
[*  35]  Turner,  L.  J. ,  and  Sir  George  Jessel  are  probably  *  a 
safer  guide  than  any  definitions  or  illustrations  to  be  found 
in  dictionaries.  Kindersley,  V.  C,  was  clear  on  the  point  So 
was  Turner,  L.  J.,  who  agreed  with  the  Vice-Chancellor  on 
that  question  in  Bell  v.  Wilson,  L.  R  1  Ch.  303,  and  dealing  with 
an  exception  of  "  mines  within  and  under  the  lands  whether 
opened  or  unopened, "  observed  that  those  are  "  words  which  are 
ordinarily  used  with  reference  to  underground  workings."  In 
ErHngton  v.  Metropolitan  District  Ry.  Co, ,  19  Ch.  D.  559,  where, 
contrary  to  the  view  thrown  out  by  some  of  the  noble  and  learned 
Lords  in  Great  Western  Ry.  Co,  v.  Bennett,  L.  R  2  H.  L.  27,  it 
was  held  that  railway  companies  could  acquire  mines  compul- 
sorily.  Sir  George  Jessel  remarks :  "  There  are  no  mines  in  the 
ordinary  sense  under  these  lands,  at  least  it  is  not  shown  there  are. 
What  are  called  mines  and  what  are  minerals  probably  within  the 
meaning  of  the  Act  of  Parliament  are  some  beds  of  gravel  or  some 
beds  of  clay  lying  near  the  surface,  and  it  is  said  they  can  only  be 
worked  from  the  surface. " 

If  it  was  really  the  intention  of  Parliament  that  all  minerals, 
however  worked,  should  be  deemed  to  be  excepted  from  convey- 
ances to  railway  companies  unless  expressly  mentioned  therein,  I 
cannot  conceive  why  the  word  "  minerals  "  is  not  to  be  found  in 
the  heading  to  this  part  of  the  Act,  or  why  the  word  **  min- 
erals "  was  not  used  in  sect.  77  instead  of  the  expression  "  mines 
of  coal,  ironstone,  slate,  or  other  minerals, "  or  why  the  Legisla- 
ture in  the  heading  and  in  that  section  avoided  the  use  of  the 
common,  obvious,  and  well-understood  expression  "  mines  and 
minerals. ' 


R,  C,  VOL.  XVII.]  SECT.  L  —  MINERAL   PROPERTY.  531 

Vo.  9.  —  Kidlaad  Bailway  Compaiiy,  &e.  ▼.  Bobixuon,  16  App.  Cai.  85,  86. 

Whether  the  view  of  the  appellants  or  that  of  the  respondent  be 
accepted  some  difl&culties  and  inconveniences  unquestionably  may 
present  themselves.  But  I  think  the  appellants  were  right  in 
saying  that  the  difficulties  which  attend  their  construction,  how- 
ever formidable  they  may  appear  in  argument,  are  not  really 
practical  difficulties,  and  that  those  difficulties  are  reduced  to  a 
minimum  since  it  has  been  decided  that  railway  companies  are 
not  disabled  from  purchasing  mines  compulsorily  if  they  think 
fit  to  do  so. 

It  was  said  in  argument  that  if  the  appellants'  construction 
were  adopted  railway  companies  might  be  exposed  to  danger 
by  *  the  working  of  surface  minerals  on  adjacent  lands.  [*  36] 
But  in  answer  it  was  pointed  out  that  if  surface  minerals 
are  not  within  the  enactment  with  respect  to  "  mines  lying  under 
or  near  the  railway, "  the  ordinary  rule  as  to  adjacent  support  so 
far  as  regards  surface  minerals  would  be  applicable. 

Some  reliance  was  placed  on  certain  expressions  in  Lord  Chelms- 
ford's judgment  in  the  Great  Western  By,  Co.  v.  Bennett,  L.  R 
2  H.  L.  27,  which  seem  to  show  that  in  his  Lordship's  opinion  all 
minerals  of  whatever  kind,  and  however  near  the  surface,  were 
reserved  by  the  Act  to  the  landowner.  But  it  is  to  be  observed 
that  the  question  which  has  arisen  in  the  present  case  could  not 
possibly  have  arisen  in  Bennetfs  case,  because  the  exception  in 
the  conveyance  under  consideration  in  that  case  did  not  follow  the 
words  of  the  Act  It  excepted  in  terms  both  minerals  and  mines. 
The  point,  therefore,  possibly  was  not  present  to  his  Lordship's 
mind.  On  the  other  hand.  Lord  Westbury's  opinion  seems  to 
favour  the  appellants'  construction. 

That  a  railway  company  is  not  entitled  to  support  from  subja- 
cent or  adjacent  mines  is  perfectly  clear  from  the  Act,  as  was 
pointed  out  in  Bennetfs  case.  But  I  do  not  think  that  it  neces- 
sarily follows  from  that  circumstance  that  a  mine  owner  who 
is  entitled  to  withdraw  support  by  working  his  mines  in  the 
ordinary  course  if  the  company  do  not  compensate  him  is  en- 
titled to  enter  upon  the  surface,  which  unquestionably  belongs 
to  the  railway  company,  and  break  it  up  by  working  from  the 
surfaca 

For  these  reasons  and  the  reasons  I  have  expressed  in  Farie's 
case,   13  App.   Caa    657  (p.   485,  ante),  I  should,  but  for  your 


532  MINES  AND  MINERALa 


Vof.  8, 9.  —  Lord  Frovoit,  &e.  of  Glasgow  ▼.  Faxie ;  Hid.  By.  Co.  ▼.  BobiiiMiL— Votes. 

Lordships'  opinion,  be  disposed  to  reverse  the  judgment  under 
appeal. 

Order  appealed  from  affirmed  and  appeal  dismissed  vnth 
costs :  Ordered  (on  the  application  of  the  parties  by  their 
counsel  at  the  bar)  that  this  jvdgraent  be  held  to  be  a  final 
judgrnent  in  the  action,  and  that  the  action  be  dismissed 
with  costs. 
Lords'  Journals,  9th  December,  1889. 

ENGLISH  NOTES. 

The  case  of  the  Earl  of  Jersey  v.  Neath  (Guardians),  which  was 
decided  by  the  Court  of  Appeal  subsequently  to  the  decision  of  the 
House  of  Lords  in  Lord  Provost^  &c.  of  Glasgow  v.  Farie^  has  been 
already  stated  in  the  notes  to  Kos.  3  and  4^  at  p.  448^  supra. 

Where  minerals  are  expressly  excepted  from  a  conveyance  of  land  to 
a  railway  company,  —  particularly  where  they  are  described  as  including 
a  stratum  of  clay  which,  according  to  the  decision  in  Lord  Provost,  dec. 
of  Glasgow  v.  Farie,  would  not  be  within  the  exception  of  "mines  of 
coal,  ironstone,  slate,  or  other  minerals,"  implied  in  a  conveyance 
according  to  sect.  77  of  the  Eailways  Clauses  Consolidation  Act, 
1846,  — such  clay  is  subject  to  the  subsequent  clauses  relating  to  mines 
and  minerals  generally,  and  may  accordingly,  unless  the  company  elect 
to  purchase  it,  be  worked  by  the  owner  under  the  reservation,  not  only 
by  working  from  beneath  so  as  to  let  down  the  surface,  but  by  entering 
upon  the  surface  of  the  land  and  working  it  from  above,  if  that  is  the 
usual  manner  of  working  such  material  in  the  district;  and,  if  neces- 
sary, for  such  working,  removing  the  railway.  Ruahon  Brick  and 
Terra  Gotta  Co.  y.  Great  Western  Railway  Co.  (C.  A.),  1893,  1  Ch. 
427,  62  L.  J.  Ch.  483,  68  L.  T.  110,  41  W.  R.  418. 


R.  C.  VOL.  XVII.]  SECT.  L  —  MINERAL  PROPERTY.  533 

Ho.  10. — Biihop  of  WinehMter  ▼.  Knight,  1  P.  Wms.  406.  — Bole. 

No.  10.  — BISHOP  OF  WINCHESTER  v.  KNIGHT. 

(1717.) 

No.  11.— BOURNE  V.  TAYLOR. 
(18080 

RULE. 

In  the  case  of  an  ordinary  copyhold  the  property  in  the 
minerals  beneath  the  copyhold  tenement  is  vested  in  the 
lord  as  having  the  freehold  of  inheritance  vested  in  him ; 
but  the  lord,  as  such,  and  without  a  custom  of  the  manor, 
is  not  entitled  to  enter  upon  the  copyhold  and  bore  for  or 
work  the  minerals. 


Bishop  of  Winchester  v.  Knight. 

1  F.  Wins.  406-408  (s.  0.  2  Eq.  Cas.  Ab.  226,  pi.  7}. 

Customary  cmd  Copyhold  Tencmts.  —  Lord* 8  Bights.  — Minercda. 

Lord  of  a  manor  may  bring  a  bill  for  an  account  of  ore  dug,  or  timber  [406] 
cut,  by  defendant's  testator  >  otherwise  of  ploughing  up  meadow  or  ancient 
pasture,  or  such  torts  as  die  with  the  person. 

One  held  customary  lands  of  the  Bishop  of  Winchester,  as  of 
his  manor  of  Taunton-Dean  in  Somersetshire,  in  which  lands 
there  was  a  copper  mine  that  was  opened  by  the  tenant,  who  dug 
thereout,  and  sold  great  quantities  of  copper  ore,  and  died,  and 
his  heir  continued  digging  and  disposing  of  great  quantities  of 
copper  ore  out  of  the  said  mine. 

The  Bishop  of  Winchester  brought  a  bill  in  equity  against  the 
executor  and  heir,  praying  an  account  of  the  said  ore,  and  alleging 
that  these  customary  tenants  were  as  copyhold  tenants,  and  that 
the  freehold  was  in  the  Bishop,  as  lord  of  the  manor  and  owner  of 
the  soil,  and  that  the  manner  of  passing  the  premises  was  by 
surrender  into  the  hands  of  the  lord,  to  the  use  of  the  surrenderea 

On  the  other  side  it  was  said  that  it  did  not  appear  the  admit- 
tance, in  this  case,  was  to  hold  ad  voluntatem  domini  secundum 
conmetitdinem,  <fec.,  without  which  words  [ad  voluntatem  domin/i] 


534  MINES   AND  MINERALS. 

Vo.  10.  — Biihop  of  Winehetter,  1  P.  Wms.  407,  406. 

[407]    it  was  insisted  there  could  be  no  copyhold,  as  had  been 
adjudged  (Crowther  v.    Oldfield,  Salk.   365,   and    Gale  v. 
Noble,  Garth.  432),  in  Lord  Ch.  J.  Holt's  time. 

Then,  as  to  the  ore  dug  in  the  ancestor's  lifetime,  there  was  no 
colour  to  ask  relief ;  because  this  being  a  personal  tort,  the  same 
died  with  the  person,  and  that  with  respect  to  the  ore  dug  in  the 
heir's  own  time,  there  could  be  no  remedy;  for  that  these  cus- 
tomary tenants  were  as  freeholders,  and  there  was  full  proof  that 
they,  from  time  to  time,  had  used  to  cut  down  and  fell  timber 
from  off  the  premises,  and  had  also  dug  stone  and  sold  it. 

Lord  Chancellor  (Cowper).  —  It  would  be  a  reproach  to  equity 
to  say,  where  a  man  has  taken  my  property,  as  my  ore  or  timber, 
and  disposed  of  it  in  his  lifetime,  and  dies,  that  in  this  case  I 
must  be  without  remedy. 

It  is  true,  as  to  the  trespass  of  breaking  up  meadow  or  ancient 
pasture-ground,  it  dies  with  the  person ;  but  as  to  the  property  of 
the  ore  or  timber,  it  would  be  clear  even  at  law,  if  it  came  to  the 
executor's  hands,  that  trover  would  lie  for  it ;  and  if  it  has  been 
disposed  of  in  the  testator's  lifetime,  the  executor,  if  assets  are 
left,  ought  to  answer  for  it;  but  it  is  stronger  in  this  case,  by 
reason  that  the  tenant  is  a  sort  of  a  fiduciary  to  the  lord,  and  it  is 
a  breach  of  the  trust  which  the  law  reposes  in  the  tenant,  for  him 
to  take  away  the  property  of  the  lord;  so  that  I  am  clear  of 
opinion  the  executor  in  such  case  is  answerabla 

As  to  the  evidence  that  the  tenant  might  do  one  sort  of 
[408]  waste,  as  to  cut  down  and  dispose  of  the  timber,  this  might 
be  by  special  grant ;  but  it  is  no  evidence  that  the  tenant 
has  a  power  to  commit  any  other  sort  of  waste,  viz. ,  waste  of  a 
different  species,  as  that  of  disposing  of  minerals ;  but  a  custom 
empowering  the  tenants  to  dispose  of  one  sort  of  mineral,  as 
coals,  may  be  an  evidence  of  their  right  to  dispose  of  another  sort 
of  mineral,  as  lead  out  of  a  mine. 

But  this  question  being  doubtful,  and  at  law,  let  the  Bishop 
bring  his  action  of  trover  as  to  the  ore  dug  and  disposed  of  by  the 
present  tenant 

Accordingly  this  was  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 :  so  that  upon  the  producing  of  the  postea  the  Court 
held  that  neither  the  tenant  without  the  license  of  the  lord,  nor 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  535 

Ko.  11.  — Boame  y.  Taylor,  10  East,  188, 190. 

the  lord  without  the  consent  of  the  tenant,  could  dig  in  these 
copper  mines,  being  new  mines. 


Bourne  y.  Taylor. 

10  East,  189-205  (10  R.  R.  267). 

Copyhold.  —  Minerals,  —  Lord  of  Manor.  —  Right  of  Entry. 

The  lord  of  a  manor,  as  such,  has  no  right,  without  a  custom,  to  enter  [189] 
upon  the  copyholds  within  his  manor,  under  which  there  are  mines  and 
veins  of  coal,  in  order  to  bore  for  and  work  the  same ;  and  the  copyholder  may 
maintain  trespass  against  him  for  so  doing. 

But  where  the  defendant  justified  under  the  lord,  as  being  seised  in  fee  of  the 
veins  of  coal  lying  under  the  copyhold  tenements,  together  with  the  liberty  of 
boring  for  and  getting  the  coal,  &c.,  it  is  not  enough  for  the  plaintiff  to  reply 
that  as  well  all  the  veins  of  coal  under  the  said  closes  in  which,  &c.,  as  the  rest 
of  the  soil  within  and  under  the  same,  had  immemorially  been  parcel  of  the 
manor,  and  demised  and  demisable  by  copy,  &o.,  without  any  exception  or 
reservation  of  the  c6al,  &c.,  unless  he  also  traverse  the  liberty  of  working  the 
mines;  because  the  plea  claims  such  liberty  not  merely  as  annexed  to  the  seisin 
in  fee  to  be  exercised  when  in  actual  possession,  but  as  a  present  liberty  to  be 
exercised  during  the  continuance  of  the  copyholder's  estate ;  and  therefore  the 
replication  is  only  an  argumentative  denial  of  the  liberty,  and  does  not  confess 
and  avoid  it. 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  part  of 
the  North  Farm,  otherwise  Lowstead  Farm,  and  another  close, 
part  of  the  Town  Farm,  in  the  township  of  Backworth,  in  the 
county  of  Northumberland,  and  subverting  the  soil,  and  digging 
and  boring  the  same,  &c.  The  defendant  pleaded  the  general 
issue  and  six  special  justifications  of  the  trespasses,  as  servants, 
and  by  command  of  the  Duke  of  Northumberland.  The  1st  of 
these  stated  that  the  Duke,  at  the  times  when,  &c. ,  was 
and  is  seised  in  fee  *  of  the  manor  of  Tynemouth,  with  [•  190] 
the  appurtenances,  in  the  said  county,  of  which  the  closes 
in  question  have  immemorially  been  parcel  and  copyhold  tene- 
ments of  the  manor;  and  that  by  reason  thereof  the  Duke  was 
entitled  to  all  mines  and  veins  of  coal  in  and  under  the  same 
closes,  &c. ,  and  to  bore  for,  dig  for,  and  get  such  mines  and  veins 
of  coal.  The  2d  justification  stated  the  same  right  in  the  Duke, 
he  making  and  allowing  to  the  copyhold  tenants  of  the  said  closes 
in  which,  &c. ,  and  their  tenants  and  occupiers  thereof  respectively, 
a  reasonable  satisfaction  and  compensation  for  all  damages  done  or 


536  MINES  AND  MINERALS. 


Ko.  11.  —  Bourne  y.  Taylor,  10  East,  190, 191. 


occasioned  to  them  respectively  by  such  boring  for,  digging  for, 
and  getting  such  veins  and  seams  of  coal  as  aforesaid.  The  3d 
stated  that  the  places  in  which,  &c. ,  from  time  immemorial  have 
been  parcel  of  the  said  manor;  and  that  the  Duke  is  seised  in  fee 
of  and  in  the  veins  and  seams  of  coal  lying  within  and  under  the 
copyhold  tenements  within  and  parcel  of  the  same  manor,  together 
with  the  liberty  of  boring  for,  digging  for,  and  getting  such  veins 
and  seams  of  coal  there,  and  of  doing  all  such  acts  as  might  or 
may  be  necessary  for  those  purposes,  or  any  of  them.  The  4th 
stated  the  same  right  in  the  Duke  as  the  3d,  he  making  and  allow- 
ing to  the  said  copyhold  tenants,  &c.  (as  stated  in  the  2d  justifica- 
tion), reasonable  satisfaction  and  compensation  for  all  damages 
occasioned  to  them  respectively  by  the  boring  for,  digging  for,  and 
getting  the  said  coals,  and  the  doing  such  necessary  acts  as  afore- 
said. The  5th  and  6th  justifications  were  like  the  3d  and  4th, 
with  the  additional  allegation  that  the  Duke  also  was  seised  in 
fee  of  the  manor  of  Tynemouth. 

The  plaintiff  demurred  specially  to  the  first  and  second  justifica- 
tions, because  they  do  not  allege  as  a  fact  that  the  Duke 
[*  191]  was  entitled  to  bore  for,  dig  for,  and  get  the  *  coal  within 
or  under  the  copyhold  tenements  of  the  manor,  but  alleges 
that  he  was  so  entitled  as  a  consequence  of  law,  arising  from  the 
fact  of  his  being  seised  in  fee  of  the  manor;  and  because  those 
pleas  do  not  show  how  the  Duke's  supposed  right  to  bore  for,  dig 
for,  and  get  the  same  coal,  or  to  enter  and  dig  in  the  close,  &c. , 
for  that  purpose,  arose,  — whether  by  custom,  prescription,  grant, 
or  how  otherwise.  And  to  the  other  justifications  the  plaintiff 
severally  replied,  that  as  well  all  the  said  veins  and  seams  of  coal 
within  and  under  the  same  close  in  which,  &c. ,  as  the  rest  of  the 
soil  and  ground  of  and  within  and  under  the  same,  from  time 
immemorial  have  been  parcel  of  the  manor,  and  demised  and 
demisable  by  copy  of  court-roll,  &c.,  without  any  exception  or 
reservation  thereout  or  therefrom  of  the  mines  or  seams  of  coal 
within  or  under  the  said  closes  in  which,  &c. ,  or  either  of  them 
or  any  part  thereof.  That  before  the  said  Duke  was  so  seised  of 
the  said  manor,  the  late  Duke  was  lord  of  the  same,  and  seised 
thereof,  and  at  a  court-baron,  &c.,  granted  the  said  closes  in 
which,  &c.,  to  Sir  Matthew  White  Ridley,  Bart,  and  Charles 
Brandling,  Esq. ,  to  hold  to  them  and  their  heirs  at  the  will  of  the 
lord,  &c.,  and  the  survivor  of  them  demised  to  the  plaintiff,  &c. 


E.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  537 

Ko.  11.  —  Bouzne  y.  Taylor,  10  East,  191-198. 

The  defendant  demurred  specially  to  these  replications  to  the 
pleas,  because  they  do  not  directly  traverse,  nor  confess  and  avoid, 
the  matters  of  the  said  pleas,  and  are  argumentative  and  not  issu- 
able.    The  case  was  argued  in  the  last  term. 

Holroyd  for  the  plaintiff.  —  The  principal  question  is,  Whether, 
without  any  special  custom,  or  special  reservation  of  the  mines, 
the  lord  has  a  right  to  enter  upon  the  copyholder's  land 
and  dig  for  coals  there,  either  *  with  or  without  making  [*  192J 
him  compensation  for  the  injury  done  to  the  surface.  The 
defendant  by  his  pleas  admits  the  lands  to  be  copyhold ;  and  the 
plaintiff  by  his  replications  to  some  of  them  alleges  that  they 
have  been  immemorially  demisable  by  copy,  without  any  reser- 
vation of  the  mines  of  coal.  Where  there  is  a  grant  of  the  land 
itself,  all  above  and  below  the  surface  passes  with  it  (1  Blac. 
Com.  18),  unless  specially  reserved.  This,  indeed,  is  not  the 
nature  of  the  copyholder's  estate,  for  without  a  special  custom  he 
cannot  dig  the  mines  under  his  copyhold ;  nor  can  he  cut  trees 
except  for  special  purposes,  as  for  repairs,  or  toppings  and  lop- 
pings for  fire-bote ;  because,  not  having  the  freehold  of  inheritance 
in  him,  it  would  be  waste.  If  the  mines  were  reserved  out  of  the 
grant,  though  no  waste  could  be  committed  of  them,  the  tenant 
digging  for  f hem  would  be  a  trespasser.  But  where  any  estate  or 
interest  in  land  is  granted,  the  lessee  or  grantee  takes  not  only  the 
surface,  but  all  above  and  below  it ;  and  no  other  can  break  the 
soil,  without  committing  a  trespass ' upon  the  tenant's  possession. 
If  mines  were  opened  before,  the  tenant  may  dig  and  take  the 
profit  thereof ;  which  shows  that  the  mines  themselves  are  granted, 
though  it  be  waste  in  him  to  dig  for  any  new  mine  without 
license.  Saunders'  Case,  5  Co.  Eep.  12  a.  12  Co.  Lit  54  b.  Where 
the  mines  are  expressly  reserved  to  the  lord,  that  may  be  an  im- 
plied reservation  of  his  right  to  enter  and  dig  for  them ;  but  with- 
out such  express  reservation,  or  a  custom  reserving  the  right  to  the 
lord,  which  is  equivalent,  it  would  be  derogatory  to  his  grant  to 
enter  and  dig  where  he  has  granted  the  land  generally.  The  copy- 
holder is  clearly  entitled  to  all  the  profits  of  the  soil,  of 
part  of  which  he  must  be  deprived,  *  if  the  lord  may  enter  [*  193] 
upon  and  dig  the  soil  for  coal,  which  cannot  be  procured 
without  a  great  destruction  of  the  surface  about  the  opening  of  the 
mine.  The  lord,  therefore,  having  parted  with  the  right  of  pos- 
session to  the  whole  during  the  time  of  the  grant,  must  necessarily 


538  MINES  AND  MINERALS. 


Ko.  11.  —  Bouzne  y.  Taylor,  10  East,  198,  194. 


be  a  trespasser  if  he  enter  upon  the  copyhold.  The  general  rule 
is,  that  every  grant  is  to  be  taken  most  strongly  against  the 
grantor,  within  the  words  of  it  With  respect  to  the  particular 
case  of  copyholds,  in  The  Earl  of  Kent  v.  Walters,  12  Mod.  317, 
Northey  having  contended  that  by  the  general  custom  of  copy- 
holds the  lord  might  cut  trees  on  them,  for  otherwise,  if  it  were  a 
copyhold  in  fee,  the  wood  would  never  be  cut,  which  would  be 
inconvenient;  Lord  Holt  denied  the  lord's  right,  and  said  that 
the  copyholder  had  the  same  interest  in  the  trees  that  he  had  in 
the  land.  And  in  Ashmeady.  Banger,  12  Mod.  378,  Com.  Rep.  71, 
and  1  Ld.  Ray.  552,  this  Court  held  that  trespass  lay  against  the 
lord  for  entering  and  cutting  down  trees  on  the  copyhold ;  Lord 
Holt  again  affirming  his  former  opinion,  that  the  tenant  had  the 
same  customary  or  possessory  interest  in  the  trees  that  he  had  in 
the  land,  and  adding,  that  if  the  lord  had  a  mind  to  cut  trees,  he 
must  compound  with  the  tenant.  This  judgment  was  affirmed  in 
the  Exchequer  Chamber  by  all  the  Judges ;  but  it  appears  (11  Mod. 
18,  and  Salk.  638)  to  have  been  afterwards  reversed  in  the  House 
of  Lords  by  11  against  10;  because  the  tenant  could  not  cut  the 
trees,  and  if  the  lord  could  not,  they  must  rot  on  the  land,  for 
then  nobody  could.  At  most  that  judgment  can  only  conclude 
that  particular  case.     That  mines  pass  by  the  general  grant  of  an 

estate  appears  from  Clavering  v.  Clavering,  2  P.  Wms. 
[*  194]  388,  *  where  tenant  for  life  amenable  for  waste  was  held 

entitled  to  open  new  shafts  for  the  further  working  of  an 
old  vein  of  coal.  But  the  point  now  in  judgment  seems  to  have 
been  decided  in  Player  v.  Boherts,  W.  Jones,  244,  where  the  case 
is  put  that  a  man  grants  the  coal  and  coal  mines  within  a  manor, 
parcel  of  which  was  copyhold,  held  for  life,  to  J.  S.  :  the  lessee 
(stated  by  mistake  for  the  lessor)  enters  on  the  copyhold,  and  digs 
a  new  pit  there,  during  the  life  of  the  copyholder,  and  takes  the 
coals  and  converts  them  to  his  own  use ;  and  the  lessee  of  the  coal 
mine  brought  trover  against  the  lessor :  and  held  that  he  might, 
for  neither  the  lessee  nor  the  lessor  could  enter  on  the  copyholder 
to  dig  the  coals ;  for  the  copyholder  shall  have  trespass  for  break- 
ing his  close  and  digging  of  the  coals :  but  that  when  the  coals 
were  dug  out  of  the  pits  by  the  lessor  or  lessee,  or  by  a  stranger, 
they  belonged  to  the  lessee,  who  should  have  trover  against  any 
one  who  took  them.  In  Lyddall  v.  Weston,  2  Atk.  20,  upon  a 
question  whether  the  plaintiff  could   make  a  good  title.  Lord 


R.  C.  VOL.  XVIL]  sect.  L — MINERAL  PROPERTY.  539 

Ko.  11.  —  Bourne  y.  Taylor,  10  East,  194-196. 

Hardwicke,  C.  ,  said  that  there  was  no  instance  where  the  Crown 
had  only  a  bare  reservation  of  royal  mines,  without  any  right  of 
entry,  that  it  could  grant  a  license  to  any  person  to  come  upon 
another  man's  estate,  and  dig  up  his  soil  and  search  for  mines; 
and  he  thought  that  the  Crown  had  no  such  power.  But  when 
the  mines  were  once  opened,  the  Crown  may  restrain  the  owner 
of  the  soil  from  working  them,  and  may  work  them  on  its  own 
account,  or  grant  a  license  to  others  to  do  so.  In  The  Bishop  of 
Winchester  v.  Knight,  1  P.  Wms.  406  (p.  533,  ante),  the  facts  were, 
that  a  customary  tenant  holding  under  the  Bishop  had  opened 
a  copper  mine  where  none  had  been  before,  and  dug  out 
*  and  sold  great  quantities  of  ore,  and  after  his  death  his  [*  195] 
heir  had  continued  to  dig  for  and  dispose  of  other  copper 
ore.  The  Bishop  filed  his  bill  against  the  executor  and  heir  for 
an  account.  Lord  Chancellor  Cowper  considered  that  the  executor 
would  be  liable,  if  the  tenant  had  no  right ;  but  this  being  a  ques- 
tion at  law,  and  doubtful  upon  the  evidence  before  him,  he  directed 
an  action  of  trover  to  be  brought  by  the  Bishop  against  the  then 
tenant,  which  the  report  states  was  tried ;  and  there  never  having 
been  any  mine  of  copper  before  discovered  in  the  manor,  the  jury 
could  not  find  that  tlie  customary  tenant  might  by  custom  dig  and 
open  new  copper  mines.  So  that  upon  the  producing  of  the  postea 
the  Court  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.  And,  lastly,  in  the  case  of  Grey 
V.  The  Duke  of  Northumberland,  13  Ves.  236,  Lord  Chancellor 
restrained  the  lord  of  the  manor  from  opening  a  mine,  which  he 
was  preparing  to  do,  upon  the  plaintiff's  copyhold  land. 

The  question  upon  the  pleadings  was  also  discussed  by  the 
counsel  on  both  sides,  but  it  is  sufficient  to  refer  to  the  opinion  of 
the  Court  upon  this  point 

Hullock,  contra.  — It  is  admitted  that  the  freehold  is  in  the 
lord,  and  that  he  has  a  right  to  all  mines  under  the  surface  of 
the  copyhold;  and  that  when  severed  and  taken  by  any  other, 
the  property  is  in  the  lord,  and  he  may  recover  it  in  trover.  The 
question  then  is,  Whether,  having  a  clear  right  of  property  in  the 
subject-matter,  he  has  not  necessarily,  incident  to  that  right, 
the  power  of  *  taking  it?  A  copyholder,  in  the  origin  [*  196] 
of  the  tenure,  was  a  mere  tenant  at  will ;  and  at  this  day 
can  derive  no  other  rights  to  his  estate  than  what  have  in  fact  been 


540  MINES  AND  MINERALS. 

Ko.  11.  —  Boame  y.  Taylor,  10  Eait,  196,  197. 


exercised  from  all  time,  and  which  are  therefore  given  to  him  by 
the  custom  of  the  manor.     In  every  instance  of  the  exercise  of  a  | 

right  of  property  over  his  estate,  it  lies  upon  him  to  show  a  cus-  | 

tom  for  what  he  claims ;  and  whatever  he  cannot  claim  by  custom 
remains   in  the   lord,  whose  rights  are  reserved   to  him  by  the  , 

common  law,  and  are  not  dependent  on  the  custom.  The  lord 
might  originally  have  granted  the  copyhold  with  what  reserva- 
tions he  pleased ;  and  it  must  be  presumed  that  he  reserved  every 
part  of  the  copyhold  which  the  custom  does   not  show  that  he  i 

granted  to  the  copyholder,  with  all  the  powers  incident  to  the 
enjoyment  of  such  reservation.  [Lord  Ellenborough,  Ch.  J.  —  In 
the  absence  of  all  other  evidence  of  the  grant  than  the  custom, 
does  not  the  absence  of  any  custom  either  for  the  lord  or  the  copy- 
holder to  open  mines  show  what  the  terms  of  the  grant  were  ?] 
The  origin  and  nature  of  this  kind  of  estate  must  be  attended  to. 
The  copyholder's  estate  has  grown  out  of  encroachments  on  the 
lord.  Even  at  this  day  the  grant  does  not  operate  as  a  common 
law  grant  would.  Nothing  passes  by  it  but  the  mere  use  of  the 
surface  of  the  soil :  the  trees  and  mines  still  remain  in  the  lord, 
in  whom  is  the  freehold  of  the  whole.  The  lord's  rights  must 
either  be  taken  to  have  been  reserved  out  of  the  original  grant,  if 
any,  or  to  be  excepted  by  the  common  law ;  for  certainly  they  are 

not  derived  from  the  custom.  In  Folkard  v.  Hemmett 
[*197]  and  others,^  where,  in  case  by  a  commoner  *  against   a 

stranger  for  digging  the  soil  and  erecting  buildings  on  the 
common,  the  defendant  justified  under  a  grant  of  the  soil  by  the 
lord  with  the  consent  of  the  homage  according  to  the  custom. 
Lord  Ch.  J.  De  Grey,  after  hearing  evidence  of  similar  grants 
by  the  lord  for  a  long  period  back,  said  he  would  not  call  it  a 
custom,  but  a  usage,  because  he  considered  it  as  a  reserved  right 
of  the  lord,  and  that  it  was  legal.  If  mines  be  expressly  reserved 
to  the  lord  in  a  grant,  the  law  would  reserve  his  right  of  entry  and 
digging  there,  as  incident  to  such  reservation.  And  the  legal 
efifect  of  an  exception  or  reservation  by  the  law  cannot  be  less 
beneficial  than  if  it  were  by  the  act  of  the  party.  The  lord's 
right,  however,  is  rather  an  exception,  which,  as  Lord  Coke  (Co. 
Lit  47  a)  says,  is  ever  of  part  of  the  thing  granted  and  of  a  thing 
in  esse,  than   a  reservation,  which   is   always  of  a  thing  newly  ; 

created  or  reserved  out  of  the  land  demised.     Then  the  law  ex-  j 


1  Sittings  after  Easter,  16  Geo.  TIL,  C.  B.  5  T.  R,  417,  note. 


R,  C.  VOL.  XYU,]  SECT.  I.  —  MINERAL  PROPERTY.  541 

Ko.  11.  —Bonnie  y.  Taylor,  10  East,  197, 198. 

cepts  everything  which  is  incident  to  the  enjoyment  of  the  thing 
excepted ;  and  when  it  gives  anything  to  one,  it  gives  impliedly 
whatsoever  is  necessary  for  the  taking  and  enjoying  the  same. 
2  Inst.  306,  Co.  Lit  56  a,  and  Finch's  Law,  63.  If  trees  be  ex- 
cepted in  a  lease,  the  law  gives  the  lessor  and  those  who  would 
buy  of  him  power  to  enter  and  show  the  trees.  So  it  gives  power 
to  him  who  has  a  conduit  in  the  land  of  another  to  enter  and  mend 
it  when  needful.  Ziford*$  Case,  11  Co.  Eep.  52,  and  Perk.  s. 
Ill,  and  vide  Hodgson  v.  Field,  7  East,  613  (8  R  E.  701).  In 
the  Case  of  Mines  Plowd.  313,  323,  336,  it  was  held  by  all  the 
Judges  that  the  King,  having  by  his  prerogative  a  right  to  all  gold 
and  silver  mines  throughout  the  realm,  had  also  the  liberty  to  dig 
and  lay  the  same  upon  the  land  of  the  subject,  and  carry 
it  away  from  *  thence;  which  is  directly  against  what  is  [*  198] 
said  by  Lord  Hardwicke  in  Lyddall  v.  Weston,  2  Atk.  20. 
If  one  have  a  right  of  way  over  another's  land,  he  may  enter  to 
repair  it.  Finch's  Law,  63.  If  this  right  of  the  lord  affect  the 
copyholder's  enjoyment,  it  is  because  of  the  nature  of  his  tenure ; 
and  though  every  grant  is  to  be  construed  most  strongly  against 
the  grantor,  that  only  applies  to  that  which  is  meant  to  pass,  but 
not  to  an  interest  which  it  is  admitted  did  not  pass.  The  case  of 
Player  v.  Roberts,  W.  Jones,  244,  was  a  question  of  property  be- 
tween the  lord  and  the  lessee  of  the  coal  mine,  concerning  coal 
severed  from  the  mine ;  and  no  doubt  the  property,  when  raised, 
was  in  the  lessee,  whether  rightly  dug  or  not ;  and  therefore  all 
that  was  said  in  respect  of  the  right  to  dig  was  beside  the  point  in 
judgment  But  the  final  determination  of  the  lords  in  Ashmead  v. 
Banger,  Salk.  838,  and  11  Mod.  18,  is  a  direct  authority  upon 
principle  to  govern  this  case.  The  cases  of  trees  and  of  mines  are 
in  every  respect  analogous.  The  right  to  both  when  severed  is  in 
the  lord,  with  the  exception  of  such  trees  the  tenant  is  entitled 
to  take  for  repairs.  Then  if  the  lord  were  adjudged  to  have  a 
right  to  come  upon  the  land,  and  cut  down  and  take  the  timber  as 
incident  to  his  right  to  it  when  standing,  by  the  same  rule  he 
must  have  an  equal  right  to  take  the  coal  or  metals  under  the  sur- 
face in  the  only  way  in  which  they  can  be  gotten,  by  digging  for 
them.  The  judgment  of  the  Lords  there  was  conformable  to  the 
opinion  delivered  in  Heydon  v.  Smith,  13  Co.  Eep.  67,  Brownl. 
328,  and  Godb.  172,  where,  in  trespass  by  a  copyholder  against 
the  lord's  bailiflF  for  entering  his  close  and  cutting  down  a  timber 


542  MINES  AND  MINERALS. 


Ko.  11. —Bourne  y.  Taylor,  10  Enrt,  lM-900. 


tree,  the  fourth  resolution  was,  that  the  lord  cannot  take 
[*  199]  all  *  the  timber  trees,  but  he  ought  to  leave  sufficient  for 

the  reparation  of  the  customary  houses,  &c.  And  in  the 
report  of  the  same  case  in  Godbolt,  Lord  Coke  says,  that  "  without 
any  custom  the  lord  may  take  the  trees,  if  he  leave  sufficient  to 
the  copyholder  for  the  reparations. "  There  are  also  other  authori- 
ties to  that  effect :  1  Leon.  272,  case  365 ;  Ayray  v.  Bellingham, 
Finch's  Rep.  199,  2  BrownL  200.  In  the  case  of  The  Countess  of 
Rutland  v.  Gie,  1  Sid.  152,  1  Lew.  107,  and  1  Keb.  557,  the 
Court  denied  a  prohibition  to  restrain  a  rector  from  dicing  for 
lead  in  his  glebe ;  saying,  that  if  he  could  not  dig  mines  in  his 
glebe,  all  the  mines  imder  all  the  glebes  in  England  must  remain 
unopened.  And  Twisden,  J. ,  thought  that  the  lord  might  open 
a  mine  in  a  copyhold  of  inheritance ;  though  Foster  and  Keeling, 
JJ.,  thought  that  he  could  not  Upon  the  whole,  there  is  no 
decided  case  against  the  lord,  and  all  legal  analogies  and  princi- 
ples are  with  him ;  for  it  is  absurd  and  against  public  policy  that 
the  owners  of  so  great  a  mass  of  property  should  be  precluded  by 
law  from  the  enjoyment  of  it. 

Holroyd,  in  reply,  upon  the  general  question,  said  that  if  a 
mine,  lime  pit,  or  stone  quarry  were  once  lawfully  opened  upon 
the  copyhold,  the  copyholder  may  dig  and  enjoy  it;  which  showed 
that  an  interest  passed  to  him  in  the  land  beyond  the  mere  use  of 
the  surface.  It  is  also  shown  by  this,  that  if  the  copyholder  him- 
self open  a  new  mine,  it  is  waste  in  him ;  whereas  if  no  interest 
passed  to  him  in  it,  it  would  be  a  trespass,  and  not  waste,  and 
therefore  not  a  forfeiture  of  the  copyhold.  Even  as  to  trees,  it  is 
said  in  the  5th  resolution  of  Heydon  v.  Smith,  13  Co.  Eep.  68,  69, 

that  the  copyholder  may  maintain  trespass  against  the 
[*200]   *lord  for  breaking  and  entering  his  close  and   cutting 

arhorem  suam.  And  in  Folkard  v.  ffenwiett,  the  lord's 
right  was  claimed  and  supported  by  usage,  which  was  evidence  of 
an  express  reservation  in  the  original  grant  of  the  right  of 
common.  Cur,  adv,  in^^. 

Lord  Ellenborough,  Ch.  J.  —  This  was  an  action  of  trespass. 
The  defendant  pleaded  six  justifications.  The  first  stated  that  the 
Duke  of  Northumberland  is  seised  in  fee  of  the  manor  of  Tyne- 
mouth;  that  the  places  in  which,  &c.,  have  immemorially  been 
copyhold  tenements  of  that  manor ;  and  that  by  reason  thereof  the 


R.  a  VOL.  xvn.]       sect.  i.  —  mineral  property.  543 

Ko.  11.  —  Bouzne  y.  Taylor,  10  East,  90O,  201. 

Duke  is  entitled  to  all  mines  and  veins  of  coal  in  and  under  the 
said  closes  in  which,  &c. ,  and  to  bore  for,  dig  for,  and  get  such 
mines  and  veins  of  coal.  The  second  justification  states  that  the 
Duke  had  the  right  above  mentioned,  making  and  allowing  to  the 
copyhold  tenants  of  the  said  closes  in  which,  &c.,  and  their 
tenants  and  occupiers  thereof  respectively,  a  reasonable  satisfac- 
tion and  compensation  for  all  damages  done  or  occasioned  to  them 
respectively,  by  such  boring  for,  digging  for,  and  getting  such 
veins  and  seams  of  coal  as  aforesaid.  To  these  first  two  justifica- 
tions the  plaintiff  had  demurred,  and  has  assigned  for  cause  that 
the  existence  of  the  right  (so  claimed  as  aforesaid)  is  alleged,  not 
as  a  fact,  but  as  a  consequence  of  law  from  the  Duke's  being 
seised  of  the  manor.  The  third  justification  states  that  the  places 
in  which,  &c. ,  from  time  whereof,  &c. ,  have  been  copyhold  tene- 
ments of  the  manor  of  Tynemouth ;  and  that  the  Duke  is  seised  in 
fee  of  all  the  veins  and  seams  of  coal  lying  within  and  under  the 
copyhold  tenements  of  the  manor,  together  with  the  liberty  of 
boring  for,  digging  for,  and  getting  such  veins  and  seams  of  coal 
there,  and  of  doing  all  acts  necessary  for  those  purposes ; 
and  justifies  imder  that  right.  *  The  fourth  is  the  same  [*  201] 
with  the  third,  except  that  it  adds  that  compensation  is 
to  be  made  for  damages,  as  the  second  does.  The  5th  and  6th  are 
like  the  3d  and  4th,  but  they  add  that  the  Duke  is  also  seised  of 
the  manor.  To  each  of  these  four  last  justifications  the  plaintiff 
has  replied,  that  as  well  the  said  veins  and  seams  of  coals  lying 
under  the  said  closes  in  which,  &c. ,  as  the  rest  of  the  soil  and 
ground  of  and  within  and  under  the  said  closes  in  which,  &c., 
from  time  immemorial  have  been  parcel  of  the  said  manor,  and 
demised  and  demisable  by  copy  of  court-roll,  wrthout  any  excep- 
tion or  reservation  of  the  mines  or  seams  of  coal  within  or  under 
the  said  closes,  in  which,  &c.,  or  either  of  them,  or  any  part 
thereof ;  that  the  said  closes  in  which,  &c. ,  were  granted  to  Sir 
M.  White  Eidley  and  Charles  Brandling,  Esq. ,  to  hold  to  them 
and  their  heirs,  at  the  will  of  the  lord,  &c.  and  that  they  demised 
them  to  the  plaintiff.  To  each  of  these  replications  the  defendant 
has  demurred,  and  has  assigned  for  cause  that  they  do  not  strictly 
traverse,  or  confess  and  avoid,  any  of  the  matters  contained  in 
the  pleas,  and  are  argumentative,  and  not  issuable. 

Upon  these  pleadings,  therefore,  there  are  two  questions:  the 
one,  a  general  one,  whether  the  lord  of  a  manor  has,  as  lord,  a 


544  MINES  AND   MINERALS. 


Ko.  11.  —  Bourne  y.  Taylor,  10  Eaft,  SOl-SOS. 


right  to  enter  upon  the  copyholds  within  the  manor,  if  there  be 
mines  and  veins  of  coals  under  them,  and  bore  for  and  work  such 
mines  or  veins  ?  the  other,  a  question  of  mere  form,  whether  the 
replication  to  the  last  four  justifications  sufficiently  confess  and 
avoid  them ;  or  whether  they  ought  not  to  have  traversed  the  lib- 
erty of  digging  stated  in  the  justifications  ? 

As  to  the  first,  if  such  a  right  as  is  claimed  exist,  it  is  singular 

that  it  is  not  noticed  in  any  of  the  books  which  treat  of 
[*  202]  manors  and  copyholds ;  that  it  is  now  for  the  first  *  time 

brought  forward ;  that  not  a  single  instance  is  given  of  the 
exercise  of  it ;  and  that  with  the  single  exception  of  a  dictum  in 
Eutland  v.  Greene,  what  authorities  there  are  upon  the  point  are 
all  against  it.  Rutland  v.  Greene  is  in  1  Keb.  557,  1  Sid.  152, 
and  1  Lev.  107.  The  case  was  this :  a  parson  opened  a  mine  upon 
his  glebe;  the  patron  moved  for  a  prohibition  to  restrain  him 
imder  the  equity  of  the  statute,  35  Ed.  I.  st  2.  The  Court  thought 
him  entitled  to  open  and  work  the  mine ;  because,  otherwise,  none 
of  the  mines  under  glebe  lands  throughout  England  would  be 
opened.  But  it  being  urged  that  this  was  the  only  way  the 
patron  had  to  try  his  right,  the  Court  granted  a  rule.  Siderfin 
adds,  *  The  same  law  seems  of  a  copyholder  of  inheritance.  Quocre 
hien, "  Whether  this  were  his  own  conclusion,  or  collected  from 
what  fell  from  the  Court,  does  not  appear ;  but  if  any  inference  is 
to  be  drawn  from  it,  it  is  that  the  copyholder  may  open  the  mine, 
not  the  lord.  Levinz  says  nothing  as  to  lord  or  copyholder;  but 
Keeble  says,  "  Twisden  conceived  the  lord  may  open  a  mine  in  a 
copyhold  of  inheritance. "  Foster  held  it  a  trespass ;  and  Keeling 
conceived  he  could  not  do  it  The  utmost  extent  therefore  of  this 
authority  is,  that  there  is  the  obiter  dictum  of  one  Judge,  viz., 
Twisden,  against  the  obiter  dicta  of  two  others,  Foster  and 
Keeling.  In  The  Bishop  of  Winchester  v.  Knight,  1  P.  Wms, 
406  (p.  533,  ante).  Lord  Chancellor  Cowper  held  that  if  there  were 
no  custom  to  regulate  it,  neither  a  customary  tenant  without 
license  from  the  lord,  nor  the  lord  without  license  from  the  tenant, 
could  open  and  work  new  mines.  In  that  case  a  customaiy  tenant 
of  the  manor  had  opened  a  copper  mine,  and  the  lord  filed  a  bill 
against  him  to  account  for  the  produce.     It  being  doubtful  where 

there  was  not  a  custom  which  would  protect  the  tenant, 
[*  203]  the  *  Lord  Chancellor  directed  the  lord  to  bring  an 

action  of  trover ;  but  the  custom  appearing  upon  the  trial 


K.  C.  VOL.  XVIL]  sect.  I.  —  MINERAL  PROPERTY.  545 

Ko.  11.  —-Bonnie  y.  Taylor,  10  East,  208,  204. 

not  to  be  applicable,  "  the   Court  held,  that  neither  the  tenant 
without  the  license  of  the  lord,  nor  the  lord  without  the  consent 
of  the  tenant,  could  dig  in  these  mines,  being  new  mines. "     In 
Player  v.  Roberts,  Sir  W.  Jones,  243,  J.  N.  was  copyholder  for  life ; 
the  lord  granted  all  coal  mines  within  his  manor  for  ninety -nine 
years  to  Dimery,  who  underlet  to  Player ;  Dimery's  term  was  after- 
wards surrendered  to  the  lord,  but  Player's  interest  was  not  extin- 
guished ;  the  lord  opened  new  pits  upon  the  copyhold,  and  took 
away  the  coal,  upon  which  Player  brought  trover  against  him. 
Several  points  were  moved ;  and  the  last  was  this :  a  man  grants 
all  his  coal  and  coal  mines  within  a  manor  (and  parcel  was  copy- 
hold for  life)  to  J.  S.  ;  the  lessee  (this  should  be  the  lessor)  enters 
the  copyhold,  and  digs  a  new  pit  in  the  copyhold  land  during  the 
life  of  the  copyholder,  and  takes  the  coals  and  converts  them  to 
his  own  use ;  and  the  lessee  of  the  coal  mine  brings  trover  against 
the  lessor:  and,  by  the   Court,  so  he  may;    for  it  is  true,  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.     But  when  the  lessor  or  lessee  or 
a  stranger  enters,  and  digs  the  coals  out  of  the  pits,  they  belong 
to  the  lessee ;  and  if  any  other  take  the  coals,  the  lessee  shall  have 
trover:  and  upon  the  whole  matter  judgment  was  given  for  the 
plaintiff.     In  Gilbert,  Ten.  327,  the  Lord  Chief  Baron  says,  "  It 
seems  to  me  that  a  copyholder  of  inheritance  cannot,  without  a 
special  custom,  dig  for  mines;  neither  can  the  lord   dig  in  the 
copyholder's   lands,  for  the  great  prejudice  he  would   do  to  the 
copyhold  estate. "     Lastly,  in  Townley  v.  Gibson,  2  T.  R 
704-707  (p.  477,  ante),  it  had  been  *  urged  in  argument  [*  204] 
that  the  lord  of  the  manor  was  entitled  to  the  mines  under 
the  copyholds,  unless  there  were  some  custom  to  exclude  him :  and 
BuLLER,  J. ,  in  delivering  his  opinion,  said,  "  I  do  not  agree  with 
the  defendant's  counsel  that  the  lord  may,  unless  restrained  by 
custom,  dig  for  mines  on  the  copyholder's  lands ;  but  it  is  not 
necessary  to  consider  that  question  here. "     These  authorities  are 
in  point ;  and  though  they  are  dicta  only,  not  decisions,  they  are 
the  dicta  of  great  men,  and  they  correspond  with  the  usage  on  the 
subject.     Valuable  as  the  supposed  right  is,  there  is  not  a  single 
instance  shown  in  which  any  lord  has  ventured  to  act  upon  it 
The  injury  to  the  tenant  would  naturally  have  produced  resistance 
on  his  part:  the  dicta   above  mentioned  would  have  encouraged 
VOL.  XVII. — 35 


546  MINES  AND  MINERALS. 


Ko.  11.  —  Bouzne  y.  Taylor,  10  East,  204,  206. 


that  resistance :  a  suit  would  have  been  the  consequence,  and  the 
result  of  such  suit  must  have  been  known  in  Westminster  Hall ; 
and  as  none  such  is  known,  it  may  fairly  be  presumed  that  a  liti- 
gation of  that  kind  has  not  taken  place. 

The  second  question,  whether  the  replications  ought  to  have 
traversed  the  liberty  of  working  the  mines,  as  stated  in  the  3d  and 
subsequent  justifications,  depends  upon  the  construction  to  be  put 
upon  those  justifications.  If  they  mean  only  that  the  liberty  is 
so  annexed  to  the  seisin  in  fee,  as  that,  until  the  right  of  actual 
possession  has  accrued  in  virtue  of  the  seisin,  the  liberty  cannot 
be  exercised;  the  replications  have  sufl&ciently  confessed  and 
avoided  it  by  showing  that  there  is  an  outstanding  copyhold 
estate,  which  suspends  the  right  of  actual  possession.  But  if  the 
pleas  are  to  be  considered  as  claiming  the  liberty  presently,  t.  c, , 
during  the  continuance  of  the  copyhold  estate,  that  liberty  is  not 
confessed  and  avoided  by  the  replications,  and  there  ought  to  have 

been  a  traverse.     The  latter  seems  to  be  the  true  meaning 
[*  205]  of  these  pleas :  and  indeed  the  pleas  *  would  be  bad  if  it 

were  not;  for  they  admit  that  the  closes  in  which,  &c., 
were  copyhold  tenements  at  the  time  of  the  trespasses,  and  insist 
upon  the  right  to  enter  upon  the  copyholds.  The  defendant  says, 
all  the  mines  under  the  copyholds  are  the  Duke's,  and  the  Duke 
has  a  right  to  work  them :  the  closes  in  question  were  subsisting 
copyholds  at  the  time  of  the  trespass,  and  therefore  I  entered 
under  the  Duke's  right.  The  defendant  therefore  must  have 
meant  that  the  Duke's  right  was  such  as  entitled  him  to  work 
during  the  copyholder's  estate.  The  word  "  liberty,"  too,  implies 
the  same  thing.  It  imports,  ex  vi  termini,  that  it  is  a  privilege  to 
be  exercised  over  another  man's  estate.  A  man's  right  of  dominion 
over  his  own  estate  is  never  called  a  liberty.  Now  during  the 
continuance  of  the  copyhold,  if  the  mine  is  to  be  worked,  the  lord 
must  exercise  a  privilege  over  the  copyholder's  estate ;  but  as  soon 
as  the  copyhold  is  at  an  end,  the  surface  will  be  the  lord's  as  well 
as  the  coal,  and  he  will  have  to  work  upon  nothing  but  his  own 
property.  It  requires,  then,  no  reasoning  to  prove,  that  if  the 
pleas  claim  the  liberty  during  the  continuance  of  the  copyholder's 
estate,  a  replication  that  the  copyholds  have  always  been  demised, 
without  any  exception  or  reservation  of  the  mines  or  seams  of  coal, 
is  not  a  confession  of  the  liberty  and  an  avoidance  of  it,  but  a 
mere  argumentative  denial  of  its  existence ;  and  as  this  is  assigned 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  547 

KoB.  10,  11.  —  Biihop  of  Winebeiter  y.  Knight ;  Bovzia  y.  Taylor.  —  Kotet . 

specially  as  a  cause  of  demurrer,  it  should  seem  that  the  replica- 
tions are  bad  on  this  ground,  and  that  the  plaintifif  ought  to  have 
leave  to  amend,  or  that  there  should  be  judgment  for  the 
defendant. 

The  plaintiff's  counsel  then  prayed  leave  to  amend  his  replica- 
tion, which  was  granted. 

ENGLISH  NOTES. 

The  question  as  to  the  right  of  the  lord  to  minerals  under  lands  held 
according  to  the  custom  of  the  manor  came  again  before  the  Court  in 
The  Duke  of  Portland  v.  Hill  (1866),  L.  R.  2  Eq.  765,  35  L.  J.  Ch. 
439,  12  Jur.  (N.  S.)  286, 16  W.  R.  38.  It  was  held  that  the  freehold 
was  in  the  lord,  and  that  in  the  absence  of  a  proved  custom,  the  tenant 
had  no  right  to  work  tlia  minerals.  Sir  W.  Page  Wood,  V.  C,  in 
giving  his  decision,  refers  to  the  case  of  The  Bishop  of  Winchester  v. 
Knight  as  plainly  and  clearly  deciding  the  question  against  the  view 
which  appears  to  have  been  favoured  in  Gale  v.  Noble  (1696),  Carth. 
432.  *'  From  that  time  downwards,"  the  learned  Vice-Chancellor  con- 
tinued (L.  R.  2  Eq.  776),  '^  it  does  not  seem  to  me  that  there  has  been 
any  serious  doubt  on  the  matter,  though  the  question  has  been  discussed 
again  and  again,  particularly  in  Roe  d.  Conolly  v.  Vernon  (5  East,  51) ; 
but  as  far  as  authority  goes,  there  has  never  been  a  decision  which  has 
affected  to  reverse  or  cast  doubt  upon  The  Bishop  of  Winchester  v. 
Knight.  In  the  recent  case  of  The  Marquis  of  Salisbury  v.  Gladstone 
(No.  14,  postf  9  H.  L.  Cas.  692),  it  is  referred  to  as  being  a  case  of  good 
and  sound  law,  and  no  doubt  that  I  know  of  has  ever  been  cast  upon  it.'* 

What  sort  of  statement  and  evidence  of  a  custom  will  justify  an  entry 
by  the  lord  upon  the  surface  of  the  copyhold  is  not  made  clear  by  decided 
cases;  but  according  to  the  decision  in  Wilkes  v.  Broadbent,  in  the  Ex- 
chequer Chamber,  1744  (error  from  Broadbent  v.  Wilkes,  Carthew, 
360),  1  Wils.  63,  it  seems  that  any  such  custom  must  be  clearly  defined 
and  proved.  In  that  case  the  custom  set  forth  in  the  pleadings  and 
affirmed  by  the  verdict  of  the  jury  was,  "that  the  lord  of  the  manor  for 
the  time  being,  and  his  tenants  in  the  collieries  for  time  out  of  mind, 
have  used  to  sink  pits  within  the  freehold  lands  for  working  the  same 
to  get  coals,  and  to  throw,  place,  &c.,  with  shovels  and  spades,  &c., 
earth,  stones,  coal,  &c.,  coming  out  of  the  said  collieries,  together  in 
heaps  upon  the  land  there  near  to  such  pits,  there  to  remain  and  con- 
tinue, and  to  place,  lay, .  and  continue  wood  there  for  the  necessary  use 
and  making  of  the  said  pits,  and  to  take  and  carry  away  from  thence 
with  waggons,  carts,  &c. ,  part  of  the  coals  laid  there j  and  to  burn  and 
make  into  cinders  other  part  of  the  coal  laid  there  during  and  at  the 


548  MINES  AND   MINERALS. 


Hot.  10, 11.  —  Bifhop  of  WinehMter  y.  Knight ;  Bourne  ▼.  Taylor.  —  Votes. 

will  and  pleasure  of  the  said  lord  or  his  tenants."  It  was  decided  by 
the  judgment  of  the  whole  Court  delivered  by  Lee,  Ch.  J.,  that  the  cus- 
tom so  alleged  and  found  was  unreasonable  and  void :  ''  1st.  Because  it 
is  so  very  uncertain,  for  the  word  near  is  of  great  latitude,  and  too  loose 
to  support  a  custom,  such  as  this  is  pleaded  to  be;  2ndly.  Because  it 
was  very  unreasonable,  for  it  laid  such  a  great  burden  upon  the  tenants' 
land,  without  any  consideration  or  advantage  to  him,  as  tended  to 
destroy  his  estate,  and  defeat  him  of  the  whole  profits  of  his  laud, 
and  savours  much  of  arbitrary  power,  being  pleaded  to  be  at  the  will 
and  pleasure  of  the  lord,  and  to  do  it  as  often  and  when  he  pleases :  and 
if  a  custom  be  unreasonable,  no  length  of  time  can  make  it  good."  As 
to  the  argument  made  at  the  bar  that  the  custom  might  have  a  reason- 
able commencement,  and  that  the  lord  might  grant  his  lands  to  the  copy- 
holders charged  as  he  thought  fit,  and  that  a  copyholder,  in  the  eye  of 
the  law,  was  but  a  mere  tenant  at  will  of  his  lord — the  answer  was 
'*  that  he  had  more  than  an  estate  at  will,  for  he  has  an  inheritance  ad 
voluntatem  domini  secundum  consuetudinem  manerie  ;  et  consuetvdo 
est  altera  lex  (4  Co.  Rep.  21).  And  to  support  this  custom  would  be 
to  take  away  the  whole  benefit  of  the  land  granted  originally  to  the 
copyholder  by  the  lord ;  and  it  is  a  void  custom  and  contrary  to  law, 
that  the  lessor  shall  have  common  encounter  son  demise  quia  est  part 
del  chose  deviise  (Palm.  212)  ;  but  this  custom  being  pleaded  to  be  at 
the  will  and  pleasure  of  the  lord,  tends  to  make  him  judge  in  his  own 
cause,  which  the  law  will  not  endure  (Lit.  sec.  212)," 

The  judgment  of  the  Master  op  the  Rolls  in  Eardley  v.  Earl 
Ch'anville  (Ko.  6,  ante)  may  also  be  read  as  explaining  the  ordinary 
rights,  as  between  the  lord  and  the  copyholder,  in  regard  to  mines. 

In  the  case  of  The  Ballacorkish  Mining  Co,  v.  Harrison  and  others 
(1873),  L.  R.  5  P.  C.  49,  referred  to  on  another  point  by  the  Masteb 
OF  THE  Rolls  in  his  judgment  in  Eardley  v.  Earl  ChranvUle  (No.  6, 
at  p.  467,  ante),  it  appeared  on  the  evidence  that  by  the  custom  of  the 
island  the  lords  in  whom  the  minerals  were  vested  had  the  right,  for 
the  purpose  of  mining,  to  break  the  surface  and  deposit  spoil,  making 
compensation  to  the  customary  tenants  of  the  land.  This  right  was 
held  by  the  Court  below  to  be  established,  and  was  held  to  be  good  on 
the  ordinary  principles  applying  between  a  lord  and  a  customary  tenant ; 
and  it  was  not  disputed  on  the  appeal.  The  other  point  —  as  to  the 
right  of  the  mine  owner  to  draw  off  the  water  by  percolation  —  was 
given  in  favour  of  the  mine  owner  upon  the  express  reservation  of 
"  mines "  by  the  Act  of  Tynwald  (an  Act  of  Parliament  of  the  Isle  of 
Man  in  1703)  ;  the  result  being  that  the  mine  owner  had  the  right  to 
draw  off  water  by  percolation,  like  the  owner  of  any  other  separate 
tenement,  on  the  principle  of  Chasemore  v.  Richards  (1  R.  C.  729). 


B.  C.  VOL.  XVII.]  SECT.  I.  —  MINEKAL  PROPEKTY.  549 

Ko.  12.  —  Goodtitte  d.  GhMtar  ▼.  Alker  and  Ehnat,  1  Burr.  138,  184.  —Bole. 

No.  12.  — GOODTITLE  d.  CHESTER  v,  ALKER  AND 

ELMES. 
(1757.) 

RULE. 

The  property  in  mines  under  a  public  highway  is,  primd 
fade,  in  the  freeholder  of  the  surface  over  which  the  high- 
way passes. 

Ooodtitie  d.  Chester  v.  Alker  and  Elmes. 

1  Burr.  133-146. 

Mines  under  Public  Highway, 

Ejectment  will  lie  by  the  owner  of  the  soil,  for  land  which  is  part  of  [183] 
the  King's  highway,  or  of  an  acre  of  land,  described  only  by  the  name  of 
land|  though  there  was  a  wall,  and  porch,  and  part  of  a  house  built  upon  it. 

This  case  was  first  argued  on  Tuesday,  the  4th  of  February, 
1755,  when  there  were  only  three  Judges;  Mr.  Justice  Wright 
having  (two  days  before)  resigned,  and  Mr.  Wilmot  (who  was 
appointed  to  succeed  him)  not  being  then  called  a  sergeant :  and  it 
was  again  argued,  and  determined  on  this  day  (when  Mr.  Justice 
WiLMOT  was  also  absent,  in  the  Court  of  Chancery). 

It  was  a  special  verdict  in  ejectment  for  an  acre  of  land  lying  in 
the  parish  of  St.  Philip  and  Jacob  in  the  county  of  Gloucester.  It 
finds,  as  to  one  piece  of  land,  containing  14  inches  in  length,  and  33 
feet  in  breadth  (parcel  of  the  premises) ;  and  as  to  one  other  piece 
of  land,  containing  3  feet  6  inches  in  length,  and  7  feet  in  breadth 
(other  parcel  of  the  premises) ;  and  as  to  one  other  piece  of  land, 
containing  2  feet  in  depth  and  14  feet  in  length  (other  parcel  of 
the  premises  contained  in  the  declaration) ;  that  Thomas  Chester, 
Esq. ,  was  in  1648  seised  in  his  demesne  as  of  fee,  of  and  in  the 
manor  of  Barton  Regis,  in  the  county  of  Gloucester,  with  the  appur- 
tenances. That  the  said  T.  C. ,  Esq. ,  being  so  seised,  cer- 
tain articles  of  agreement  were,  on  24th  June,  1648,  *  made  [•  134] 
between  the  said  Thomas  Chester  and  one  John  Gotley, 
otherwise  Dowle,  reciting  a  presentment  by  the  homage,  at  a  Court 
leet  of  the  said  manor,  holden  10th  of  April,  1648,  **  That  the  said 
John  Gotley,  alias  Dowle,  in  the   new  building  of   a  house  at 


550  MINES  AND  MINERALS. 

Ho.  12.—  GoodtiUe  d.  Chefter  y.  Alker  and  Etanei,  1  Burr.  184. 

Lafford's  Gate,  had  encroached  upon  the  waste  of  the  said  Thomas 
Chester,  then  and  yet  lord  of  the  said  manor,  14  inches  in  length 
and  33  feet  in  breadth,  without  his  house ;  together  with  a  porch 
without  the  wall  adjoining  to  the  said  house,  of  3  feet  and  a  half; 
for  the  which  encroachment  the  said  John  Gotley,  alias  Dowle, 
was  by  the  said  jury  amerced ;  as  by  the  presentment  aforesaid,  in 
the  rolls  of  the  said  Court,  appeared. "    The  said  Thomas  Chester 
and  John  Gotley  thereby  agreed,  not  only  concerning  the  said 
amerciament  (whereof  the  said  Thomas  Chester  thereby  acquitted 
and  discharged  the  said  John  Gotley) ;  but  also  the  said  Thomas 
Chester,  for  the  consideration  thereafter  mentioned,  agreed  to  per- 
mit and  suffer  the  said  John  Gotley,  his  executors  and  adminis- 
trators, to  continue  the  peaceable  enjoyment  of  the  said  ground  and 
waste  encroached,  without  his  disturbance ;  and  also  to  have  liberty 
to  set  and  place  a  post  in  the  street,  &c. ,  and  three  other  posts,  &c. , 
without  any  disturbance  or  trouble  by  him,  the  said  Thomas  Chester, 
&c. ,  for  the  term  of  one  hundred  years  from  the  day  of  the  date  of 
the  said  articles.     In  consideration  whereof,  the  said  J.  G.,  alias 
D.,  for  him,  his  heirs,  executors,  &c.,  covenanted  and  agreed  to 
pay  to  the  said  T.  C,  his  heirs  or  assigns,  the  sum  of  6s.  8d.  per 
annum  yearly,  &c.,  during  the  said  term;  in  consideration  whereof 
the  said  T.  C.  granted  and  agreed  to  let  the  said  encroachment  or 
encroachments  to  stand,  for  and  during  the  said  term,  without  any 
disturbance,  &c.  ;  so  as  the  said  yearly  rent  or  sum  of  6s.  8(i  be 
duly  paid,   &c.     And  it  was  further  found,   that  the  two  first 
pieces  of  land  particularly  mentioned  and   described  in  the  ver- 
dict are  the  two  several   pieces  of   land   mentioned  in  the  said 
articles  to  be  encroached  on  by  the  said  John  Gotley,  otherwise 
Dowle ;  and  parcel  of  the  waste,  and  part  of  the  tenement  in  the 
declaration  mentioned ;  and  were  so  encroached  and  taken  in  by 
the  said  J.  G. ,  otherwise  D. ,  in  the  building  or  erecting  the  mes- 
suage or  house  mentioned  in  the  said  articles,  some  small  time 
before  the  date  of  the  said  articles ;  and  then  were  lying  in  and 
part  of  the  said  manor,  and  were  part  of  a  public  street  and  King's 
highway,  called  West  Street,  in  the  parish  of  St.  Philip  and  Jacob 
in  the  said  county  of  Gloucester,  and  leading  from  the  city  of 
London  to  the  city  of  Bristol. 

The  jury  likewise  find  that  the  said  yearly  sum  of  6s.  Sd.  was 
duly  and  constantly  paid,  in  pursuance  of  the  said  articles,  by  the 
defendants  and  those  whose  estate  they  have,  to  the  said  Thomas 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  551 

Ho.  12.  — ChwdtitU  d.  Chefter  ▼.  AUcer  and  Elmes,  1  Burr.  184-140. 

Chester  and  the  successive  lords  of  the  said  manor  (his  descend- 
ants), during  all  the  said  term  of  one  hundred  years ;  and  from  the 
end  thereof  till  Lady-day,  1750. 

*  Then  they  find  that  the  defendants,  Alker  and  Elmes,  [*  135] 
some  time  in  the  year  of  our  Lord,  1748,  erected  certain 
palisadoes  before  the  front  of  the  said  house,  and  thereby  took  in 
and  enclosed  the  third  piece  of  land,  above  particularly  mentioned 
and  described,  then  lying  in  and  being  part  of  the  said  manor,  and 
being  then  other  part  of  the  said  public  street  and  highway ;  and 
have  kept  the  same  so  enclosed,  ever  since,  to  this  time :  and  that 
that  part  of  the  said  street  where  the  said  encroachments  were  so 
made,  at  the  several  times  of  the  said  encroachments,  contained 
in  breadth  (including  the  said  encroachments)  60  feet  and  no 
more. 

The  jury  find  Thomas  Chester,  Esq. ,  the  lessor  of  the  plaintiff, 
to  be  heir-at-law  to  that  Thomas  Chester,  Esq.,  deceased,  who 
executed  the  articles ;  and  as  such,  to  be  seised  of  the  said  manor, 
with  the  appurtenances,  as  the  law  requires;  and  that  being  so 
seised,  he  made  the  demise  to  the  plaintiff:  by  virtue  of  which 
demise  he  entered,  &c.  ;  and  was  ejected,  &c.  But  whether  upon 
the  whole  matter  aforesaid,  in  form  aforesaid,  by  the  said  jurors 
found,  the  said  G.  A.  and  L.  E.  are  guilty  of  the  said  trespass 
and  ejectment,  as  to  the  said  three  pieces  or  parcels  of  land,  parcel, 
&c. ,  by  them  supposed  to  be  done,  or  not,  the  said  jurors  are  wholly 
ignorant,  &c. ,  and  so  the  verdict  concludes  in  the  ordinary  form. 

The  counsel  for  the  plaintiff  made  two  questions,  viz. :  — 

1st  question.  Whether  an  ejectment  will  lie  for  these  premises 
as  described  in  the  declaration  ? 

2d  question.  Whether  the  defendants  are  at  liberty  to  contro- 
vert the  title  of  the  plaintiff,  or  are  estopped  from  so  doing  ? 

[Upon  the  first  question  the  defendants  argued  {inter  alia)  as 
follows :  — ] 

*  It  being  the  King's  public  highway,  the  plaintiff  can  [*  140] 
never  have  possession  delivered  of  it.     The  owner  cannot 

levy  a  fine  of  it;  nor  can  he  distrain  in  it,  as  may  be  seen  in 
2  Inst.  13. 

In  cases  of  encroachments  or  purprestures  on  it,  these  encroach- 
ments are  upon  the  King ;  and  so  is  2  Inst  272,  expressly :  "  Dici- 
tur  purprestura,  quando  aliquid  super  dominum  regem  injustfe 
occupatur,  ut,  &c.  ;  vel  in  viis  publicis   obstructis.  *      And  the 


552  MINES  AND   MINERALS. 

Ho.  18.  —  Goodtitle  d.  Cheitflr  ▼.  Alker  and  Elmes,  1  Burr.  140-148. 

remedy  is  by  presentment  or  indictment  9  Co.  Kep.  113;  5  Co. 
Eep.  73  a ;  27  Hen.  VIIL  27  a.  But  an  action  lies  only  where  a 
man  receives  a  special  injury. 

How  can  the  plaintiflf  hdLwe plenam  seisinam  of  this?  In  1735, 
8  Geo.  11. ,  there  was  a  case  of  well  advised,  ex  dimiss.  Sir  Bour- 
chier  Wray  et  al.  v.  Foss  et  aL,  in  ejectment,  at  the  Summer 
Assizes  at  Exeter.  The  declaration  described  a  piece  of  land, 
containing  40  feet  in  length  and  4  feet  in  width,  part  of  the 
manor  of  J.  But  the  plaintiflf  was  nonsuited.  For  the  land  was 
part  of  the  waste ;  and  upon  evidence,  it  appeared  to  be  jmrt  of  the 
highway,  on  which  the  defendant  had  built  Lord  Hardwicke 
held  **  that  no  possession  could  be  delivered  of  the  soil  of  the 
highway;  and  therefore  no  ejectment  would  lie  of  it;  and  if  it 
was  a  nuisance  the  defendant  might  be  indicted.  * 

In  the  present  case,  all  these  three  pieces  of  land  are  part  of  the 
King's  highway  and  are  encroached  upon;  and   the  two  former 

have  subsisting  nuisances  upon  them. 
[*  143]  *  Lord  Mansfield  asked  whether  they  had  any  note  or 
report  of  that  Circuit  case  which  was  said  to  have  been 
determined  by  Lord  Hardwicke,  and  by  whom  it  was  taken ;  but 
there  was  no  note  or  report  of  it;  and  it  seemed  to  have  been  men- 
tioned at  the  Assizes,  from  some  imperfect  recollection.  He  there- 
fore proceeded  to  give  his  opinion  immediately,  putting  this  case 
of  Sir  Bourchier  Wray  out  of  the  way  entirely,  as  being  so  loosely 
remembered  and  imperfectly  reported,  as  to  deserve  no  regard,  nor 
be  at  all  clear  and  intelligible.  He  said  it  was  impossible  to 
suppose  that  Lord  Hardwicke  had  any  note  or  memory  of  such  a 
point  arising  at  the  Assizes:  otherwise,  he  would  wait  till  he 
could  know  the  true  state  of  it  from  his  Lordship,  from  the  defer- 
ence he  paid  to  so  great  an  authority.  But  from  the  manner  in 
which  it  is  quoted,  there  is  no  ground  to  say  what  the  state  of  that 
case  or  determination  really  was. 

As  to  the  question  **  Whether  an  ejectment  will  lie,  by  the 
owner  of  the  soil,  for  land  which  is  subject  to  passage  over  it  as 
the  King's  highway  ?  " 

1  Eo.  Abr.  392,  letter  B,  pi.  1,  2,  is  express,  "  That  the  King 
has  nothing  but  the  passage  for  himself  and  his  people ;  but  the 
freehold  and  all  profits  belong  to  the  owner  of  the  soil.  *  So  do 
all  the  trees  upon  it,  and  mines  under  it  (which  may  be  extremely 
valuable).     The  owner  may  carry  water  in  pipes  under  it     The 


K.  a  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  553 

Ho.  18.~aoodtitle  d.  Cherter  y.  Alker  and  Slmei,  1  Burr.  143-145. 

owner  may  get  his  soil  discharged  of  this  servitude  or  easement 
of  a  way  over  it,  by  a  writ  of  ad  quod  damnum. 

It  is  like  the  property  in  a  market  or  fair. 

There  is  no  reason  why  he  should  not  have  a  right  to  all  reme- 
dies for  the  freehold;  subject  still,  indeed,  to  the  servitude  or 
easement.  An  assize  would  lie,  if  he  should  be  disseised  of  it : 
an  action  of  trespass  would  lie  for  an  injury  done  to  it 

I  find  by  the  case  of  Selman  v.  Courtney,  Tr.  13,  14  Geo.  11. , 
that  a  point  which  had  been  before  the  Court  of  Exchequer  in  the 
case  of  the  Ihichess  of  Marlborough  v.  Crray,  M.  2  Geo.  II.,  is 
now  settled ;  viz. ,  "  That  its  being  a  highway  cannot  be  given  in 
evidence  by  the  defendant,  upon  the  general  issue :  *  which  proves 
that  the  ownership  of  the  soil  is  not  in  the  King.  I  see  no 
ground  why  the  owner  of  the  soil  may  not  bring  ejectment,  as  well 
as  trespass.  It  would  be  very  inconvenient  to  say  that  in  this 
case  he  should  have  no  specific  legal  remedy ;  and  that  his  only 
relief  should  be  repeated  actions  of  damages,  for  trees  and  mines, 
salt  springs,  and  other  profits  under  ground.  'Tis  true,  indeed, 
that  he  must  recover  the  land,  subject  to  the  way;  but 
surely  he  ought  *  to  have  a  specific  remedy  to  recover  the  [*  144] 
land  itself,  notwithstanding  its  being  subject  to  an  ease- 
ment upon  it 

I  am  of  opinion  that  the  plaintiff  ought  to  recover  upon  this 
special  verdict 

Mr.  Justice  Denison  concurred. 

*  The  difficulty  at  the  Assizes  arose  (as  the  Judge  who  [*  145] 
tried  the  cause  has  declared)  merely  upon  an  apprehension 
that  there  had  been  a  determination  at  the  Assizes  formerly  by 
Lord  Hardwicke,  "  that  an  ejectment  would  not  lie  for  a  property 
in  soil,  over  which  there  was  a  highway ;  because  the  sheriff  could 
not  deliver  possession  of  the  highway. " 

But  the  reality  of  this  authority  has  not  been  at  all  proved,  to 
any  kind  of  satisfaction. 

Trespass  would  undoubtedly  lie:  why  then  should  not  an 
ejectment  ? 

It  is  said  "  that  the  sheriff  cannot  deliver  full  possession.  * 

But  why  not?  Indeed,  it  must  be  subject  to  the  easement; 
but  there  is  no  other  difficulty  in  the  matter. 

Therefore  I  take  it  for  granted  that  there  was  something  more 


554  MINES  AND   mNERALS. 


Ho.  12.  —  OoodtiOe  d.  Cheiter  y.  ADrar  and  Ebiiei,  1  Burr.  145, 146.  — Hot«. 

in  that   cited  case  of  Sir  Bourchier    Wray's  than  we  are  now 
apprised  of. 

[146]  Mr.  Justice  Foster  had  no  doubt  of  the  present  case, 
when  it  was  before  him  at  the  Assizes,  but  from  the  then 
apprehended  authority  of  the  cited  case,  said  to  be  determined  by 
Lord  Hardwicke. 

The  owner  of  the  soil  has  right  to  all  above  and  under  ground, 
except  only  the  right  of  passage,  for  the  King  and  his  people. 

And  the  case  in  1  Ro.  Abr.  392,  letter  B,  proves  this. 

Therefore  he  entirely  concurred  with  his/  Lordship  and  his 
Brother  Denison  (for  Mr.  Justice  Wilmot  was  not  present  in 
Court  at  either  of  the  two  arguments  of  this  case),  that  there 
should  be  JvdffmerU  for  the  plaintiff. 

ENGLISH  NOTES. 

The  proposition  that  the  ownership  of  mines  under  a  highway  is  prima 
facie  vested  in  the  adjoining  proprietors  is  assumed  in  the  judgments 
in  the  case  of  Chamber  Colliery  Co,  v.  Rochdale  Canal  Co,  1895, 
A.  C.  564,  64  L.  J.  Q.  B.  645,  73  L.  T.  258,  where  it  is  held  that  the 
presumption  does  not  apply  to  the  mines  under  a  canal  where  the  land 
for  making  the  canal  has  been  conveyed  (excepting  the  mines)  to  the 
canal  proprietors,  and  a  conveyance  is  afterwards  made  to  another  of 
the  land  adjoining  the  canal.  See,  as  to  the  analogous  right  of  the 
proprietor  of  the  adjoining  land  in  the  bed  of  the  channel  of  a  non-navi- 
gable river,  Bickett  v.  Morris  (H.  L.  Sc.  1866),  L.  R.  1  H.  L.  Sc.  47, 
2  Paterson  Sc.  App.  1416. 

It  does  not  follow  from  the  circumstance  that  the  public  highway  is 
a  right  merely  in  the  nature  of  an  easement,  that  it  is  not  accompanied 
by  a  right  of  support.  Thus  where  commissioners  under  the  powers  of 
a  local  Act  for  the  enclosure  of  waste  land,  set  out  public  highways 
over  the  land,  and  directed  that  it  should  be  lawful  to  all  persons  to 
use  them;  and  reserved  to  the  lord  of  the  manor  in  the  widest  terms 
the  mines,  &c.,  under  the  land  (formerly  the  waste),  with  power  to  do 
every  act  necessary  for  working  the  minerals  as  effectually  as  he  could 
have  done  in  case  the  Act  had  not  been  made,  without  making  any  satis- 
faction; and  the  defendants,  assignees  of  the  land,  worked  the  mines 
so  that  the  road  subsided :  it  was  held  that  the  Act  which  set  out  a  public 
road  could  not  have  been  intended  to  authorise  a  public  nuisance  by  injur- 
ing the  road ;  and  that  the  defendants  were  therefore  liable.  Benfieldside 
Local  Board  v.  Consett  Iron  Co.  (1877),  3  Ex.  D.  64,  47  L.  J.  Ex.  491, 


K.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  555 

Ho.  18.  — Attoniey-CtoneralT.Chamben,  4DeG.  X.  &G.  206.— Bole. 


38  L.  T.  630,  26  W.  E.  114.  And  so  in  other  cases  where  a  statutory 
right  was  conferred  upon  persons  to  make  and  maintain  works  not  neces- 
sarily accompanied  by  proprietory  right  in  the  soil,  the  undertakers 
of  the  works  have  been  held  entitled  to  support  for  them  from  the 
subjacent  or  adjacent  soil.  See  In  re  Dudley  Corporation  (C.  A,  1881), 
8  Q.  B.  D.  86,  51  L.  J.  Q.  B.  121,  45  L.  T.  733;  Normanton  Gas  Co. 
V.  Fope  (C.  A.  1883),  62  L.  J.  Q.  B.  629,  32  W.  R.  134;  London  & 
North  Western  Railway  Co.  v.  Evans  (C.  A.),  1893,  1  Ch.  16,  62  L.  J. 
Ch.  1,  67  L.  T.  630,  41  W.  R.  149. 

AMERICAN  NOTES. 

This  case  is  cited  in  Washburn  on  Easements  and  Elliott  on  Roads  and 
Streets. 


No.  13.— ATTORNEY-GENERAL  v.  CHAMBERS. 
^  (1854,  1859.) 

RULE. 

Prima  facie  the  property  of  the  Crown  in  the  seashore 
and  mines  underneath  is  limited  by  the  line  of  medium  high 
tides ;  and,  if  the  land  has  advanced  by  imperceptible  allu- 
vion, the  line  of  medium  high  tides  is  still  the  boundary. 

Attomey-Gtoneral  v.  Chambers.^ 

4  Be  G.  M.  &  G.  206-218  (s.  c.  23  L.  J.  Ch.  662;  11  Jur.  779). 

Foreshore.  —  Crovm  Bights.  —  Line  of  Medium  High  Tides. 

In  the  ahsence  of  all  evidence  of  particular  usage,  the  extent  of  the  right  [206] 
of  the  Crown  to  the  seashore  landwards  is  primd  fade  limited  hy  the  Une 
of  the  medium  high  tide  hetween  the  springs  and  the  neaps. 

And  where  the  line  of  the  medium  high  tide  has  advanced  or  receded  in  the 
course  of  years,  the  question  is  whether  the  variation  has  been  slow,  gradual,  and 
imperceptible  or  otherwise. 

If  the  variation  has  taken  place  owing  to  works  of  the  landowner,  not  in- 
tended to  cause  such  variation,  this  landowner  is  entitled  to  gradual  accretion 
in  the  same  way  as  if  the  accretion  had  been  owing  to  natural  causes. 

An  information  was  filed  by  the  Attorney-General  against  the 
owners  and  lessees  of  a  district  abutting  on  and  extending  along 

^  Before  Lord  Cbakwobth,  L.  C,  assisted  hy  Mr.  Baron  Alderson  and  Mr.  Jus- 
tice Maule. 


656  MINES  AND   MINERALS. 


Ho.  13. — Attoniay-Ofliienl  y.  Ghamben,  4  ]>e  0.  X.  &  O.  906,  907. 

the  seashore  of  the  parish  of  Uanelly,  in  the  county  of  Carmar- 
then. The  information  alleged  that  by  the  royal  prerogative  the 
seashore,  and  the  soil  of  all  arms  and  creeks  of  the  sea,  and  of  all 
public  ports  and  havens  round  this  kingdom  as  far  as  the  sea  flows 
and  reflows,  between  high  and  low  water  mark,  and  the  soil  of  the 
navigable  rivers  of  this  kingdom,  and  all  mines  and  minerals 
lying  under  the  sea,  seashore,  arms  and  creeks  of  the  sea,  and  all 
profits  arising  from  the  shore  and  soil  belonged  to  Her  Majesty, 
and  have  at  all  times  belonged  to  her  and  her  royal  predecessors. 
Kings  and  Queens  of  this  realm.  The  information  stated  that 
there  were  very  valuable  and  extensive  veins,  seams,  or  strata  of 
coal  and  culm  lying  under  that  part  of  the  parish  of  Llanelly 
which  was  contiguous  to  the  seashore,  and  particularly  under  the 
land  belonging  to  the  defendant,  David  Lewis,  called  or  known 
by  the  name  of  Old  Castle  Farm,  and  that  such  veins,  seams,  or 
strata  of  coal  and  culm  continued  and  extended  also  under  the  con- 
tiguous seashore  below  the  line  of  high-water  mark  and  under 
the  sea. 

The  information  charged  that  the  seashore,  which  was  vested  in 
Her  Majesty  by  virtue  of  her  prerogative,  extended  landwards 
as  far  as  high-water  mark  at  ordinary  monthly  spring  tides,  or,  at 
all  events,  far  beyond  high-water  mark  at  neap  tides,  and  up  to 
the  medium  line  of  high-water  mark  between  neap  and 
[*207]  spring  tides.  The  *  information  charged  that  encroach- 
ments had  been  made  by  the  defendants  on  the  shore  by 
means  of  embankments;  and  that  valuable  coal  mines  were 
worked  under  that  part  of  the  shore  that  lay  to  the  seaward  of 
high-water  mark  at  ordinary  neap  tides  before  the  sea  was  excluded 
by  the  embankment. 

The  information  prayed  that  the  right  of  Her  Majesty  to  the 
seashore  of  the  parish  of  Llanelly  below  high-water  mark  might 
be  established ;  that  the  leases  or  licenses  to  embank,  or  build,  or 
dig,  or  raise  coal  from  the  said  seashore  might  be  declared  null, 
void,  and  delivered  up  to  be  cancelled,  and  that  the  boundary  or 
mark  to  which  the  sea  flowed  at  high  ordinary  tides  upon  the 
shore  of  the  parish  of  Llanelly,  adjoining  the  lands  in  the  occupa- 
tion or  possession  of  the  defendant,  D.  Lewis,  before  the  embank- 
ments were  erected,  and  also  those  portions  of  the  works  or  mines 
from  which  coal  or  culm  were  gotten,  which  lay  under  land  be- 
longing to  Her  Majesty,  might  be  ascertained  and  distinguished. 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  657 

Ko.  18.  —  Attoney-Oeneral  y.  Ghambert,  4  De  0.  X.  &  0.  9C7,  90S. 

and   that  the  nuisances  arising  from  the   erection  of   the  works 
might  be  abated. 

Answers  were  put  in  by  the  several  defendants,  controverting 
the  right  asserted  by  the  Crown,  and  submitting  that  at  the  utmost 
the  Crown's  right  did  not  extend  landwards  beyond  the  line  of 
high-water  mark  of  ordinary  neap  tides,  and  did  not  embrace  any 
alluvium  of  gradual  formation. 

The  cause  originally  came  on  to  be  heard  before  the  Master  of 
THE  EoLLS,  and  on  the  21st  January,  1852,  his  Honour  directed 
certain  issues  to  be  tried  between  the  Crown  and  Lord  Cawdor 
and  Mr.  Chambers  (two  of  the  defendants  and  principal  owners  of 
the  shore) ;  no  issue,  however,  was  directed  as  between 
the  Crown  *  and  the  defendant,  D.  Lewis,  who  was  also  [♦  208] 
an  owner,  the  Attomey-Greneral  having  been  of  opinion 
that  the  issues  between  the  Crown  and  the  two  principal  defend- 
ants should  be  first  disposed  of.  The  issues  came  on  to  be  tried 
on  a  trial  at  bar  before  a  jury  at  the  Queen's  Bench,  sitting  in 
Banco,  on  the  19th  February,  1854,  when  a  verdict  by  agreement 
was  entered  for  the  Crown.  The  Act  15  &  16  Vict.,  c.  86, 
having  in  the  meantime  passed  (by  the  62nd  section  of  which  a 
Court  of  Equity  is  empowered  to  determine  the  legal  rights  of 
parties  without  directing  a  trial  at  law),  and  the  question,  so  far 
as  regarded  the  rights  of  the  defendant,  Lewis,  being  still  unde- 
cided, it  was  arranged  that  the  cause  should  be  set  down  on 
further  directions,  to  be  heard  by  consent  of  the  Lord  Chancellor, 
before  his  Lordship  in  the  first  instance,  assisted  by  two  of  the 
Judges  of  the  Courts  of  common  law.  His  Lordship  having, 
accordingly,  invited  the  attendance  of  Mr.  Baron  Alderson  and 
Mr.  Justice  Maule  to  assist  in  the  determination  of  the  question, 
those  learned  Judges  now  attended. 

The  following  passages  from  Lord  Chief  Justice  Hale's  treatise, 
*  De  Jure  Maris, "  ^  were  much  commented  upon  in  the  argument, 
and  by  the  learned  Judges  and  Lord  Chancellor,  and  are  here 
inserted  for  the  convenience  of  reference :  — 

"  The  shore  is  that  groimd  that  is  between  the  ordinary  high- 
water  and  low-water  mark.  This  doth  pHmd  facie  and  of  common 
right  belong  to  the  King,  both  in  the  shore  of  the  sea  and  the 
shore  of  the  arms  of  the  sea. 

"  And  herein  there  will  be  these  things  examinable:  — 

^  Hargraye's  Tracts,  pp.  12,  25,  26. 


558  MINES   AND  MINERALS. 


Ho.  18.  —  Attom^-Oeiieral  t.  Ghamben,  4  ]>e  O.  X.  &  6.  906-J81O. 

"  1st,  What  shall  be  said  the  shore  or  liUvs  maris  f 

"  2nd,  What  shall  be  said  an  arm  or  creek  of  the  sea  ? 
[♦  209]       *  "  3rd,  What  evidence  there  is  of  the  King's  propriety 
thereof. 

"  1.  For  the  first  of  these,  it  is  certain  that  that  which  the  sea 
overflows,  either  at  high  spring  tides  or  extraordinary  tides, 
comes  not  as  to  this  purpose  under  the  denomination  of  lUius 
maris;  and,  consequently,  the  King's  title  is  not  of  that  large 
extent,  but  only  to  land  that  is  usually  overflowed  at  ordinary 
tidea  And  so  I  have  known  it  ruled  in  the  Exchequer  Chamber  in 
the  case  of  Vanhaesdanke,  on  prosecution  by  information  against 
Mr.  Whiting,  about  12  Car.  L,  for  lands  in  the  county  of  Norfolk; 
and,  accordingly,  ruled  15  Car.  I.,  B.  E.,  Sir  Edward  Heron's 
Case;  and  Pasch.  17  Car.  II.,  in  Scaccario,  upon  evidence  between 
the  Lady  Wansford's  lessee  and  Stephens,  in  an  ejectione  firnfUB 
for  the  town  of  Cowes  in  the  Isle  of  Wight  That,  therefore,  I  call 
the  shore  that  is  between  the  common  high-water  and  low-water 
mark,  and  no  more. 

"  There  seem  to  be  three  sorts  of  shores,  or  littora  marina, 
according  to  the  various  tides,  viz.  :  — 

**  1st.  The  high  spring  tides,  which  are  the  fluxes  of  the  sea  at 
those  tides  that  happen  at  the  two  equinoctials ;  and  certainly  this 
doth  not,  de  jure  communi,  belong  to  the  Crown.  For  such  spring 
tides  many  times  overflow  ancient  meadows  and  salt  marshes, 
which  yet,  unquestionably,  belong  to  the  subject.  And  this  is 
admitted  on  all  hands. 

"  2nd.  The  spring  tides  which  happen  twice  every  month,  at 
full  and  change  of  the  moon,  and  the  shore  in  question  is,  by 
some  opinion,  not  denominated  by  these  tides  neither,  but  the 
land  overflowed  with  these  fluxes  ordinarily  belong  to  the  subject 
prima  facie,  unless  the  King  hath  a  prescription  to  the 
[*  210]  contrary.  *  And  the  reason  seems  to  be,  because,  for  the 
most  part,  the  lands  covered  with  these  fluxes  are  dry  and 
maniorable ;  for  at  other  tides  the  sea  doth  not  cover  them,  and 
therefore,  touching  these  shores,  some  hold  that  common  right 
speaks  for  the  subject,  unless  there  be  an  usage  to  entitle  the 
Crown ;  for  this  is  not  properly  littus  maris.  And  therefore  it  hath 
been  held  that  where  the  King  makes  his  title  to  land  as  littus 
maris,  or  parcella  littoris  marini,  it  is  not  sufiBcient  for  him  to 


B.  a  VOL.  XVII.]  SECT.  I.  —  MINERAL  PROPERTY.  559 

Ho.  13.  —  AttonMy-Qeiieral  y.  Ghambert,  4  Be  0.  X.  &  0.  210,  211. 

make  it  appear  to  be  overflowed  at  spring  tides  of  this  kind,  P. 
8  Car.  I.,  in  Camerd  Scaccarii,  in  the  case  of  Vanhaesdanke  for 
lands  in  Norfolk ;  and  so  I  have  heard  it  was  held,  P.  15  Car.  B.  R, 
Sir  Edward  Heron's  Case;  and  Tr.  17  Car.  IL,  in  the  case  of  the 
Zady  Wandesford,  for  a  town  called  the  Cowes  in  the  Isle  of 
Wight,  in  Scaccario, 

**  3rd.  Ordinary  tides  or  neap  tides  which  happen  between  the 
full  and  change  of  the  moon ;  and  this  is  that  which  is  properly 
littus  maris,  sometimes  called  marettum,  sometimes  warettum. 
And,  touching  this  kind  of  shore,  namely,  that  which  is  covered 
by  the  ordinary  flux  of  the  sea,  is  the  business  of  our  present 
inquiry.  * 

The  Solicitor-General,  Mr.  James,  and  Mr.  fiansen  for  the 
Crown. 

By  the  feudal  law  all  the  real  property  of  this  country  was 
vested  in  the  Crown,  and  the  seashore  appertaining  to  the  sover- 
eign commences  with  that  portion  of  the  shore  where  the  interests 
of  the  public  may  be  said  to  begin ;  and  therefore  the  rights  of  the 
adjacent  freeholders  are  bounded  not  merely  by  the  ordinary  flux 
and  reflux  of  the  tide,  but  the  Crown  for  the  benefit  of  the  public 
has  a  right  to  all  the  intervening  space  between  the  highest  and 
the  ordinary  high-water  mark;  for  though  the  soil  of  the  sea 
between  high  and  low  water  mark  may  be  parcel  of  the 
manor  of  a  subject  {Constable's  *  Case,  5  Co.  Eep.  107  a),  [*211] 
yet,  as  Lord  Hale,  in  his  treatise,  "  De  Jure  Maris,  **  says 
(p.  22),  this  **  jus  privatum  that  is  acquired  to  the  subject  either  by 
patent  or  prescription  must  not  prejudice  the  jv^  publicum  where- 
with public  rivers  or  arms  of  the  sea  are  affected  for  public  use. " 
Mr.  Justice  Bayley,  in  the  case  of  Scratton  v.  Broum,  4  B.  &  C. 
485,  495  (28  E.  E.  344),  observes,  "  The  property  in  such  land 
primd  fade  is  in  the  Crown, "  and  it  is  quite  clear  that  if  the  sea 
encroach  upon  the  land  of  a  subject  gradually,  the  land  thereby 
covered  by  water  belongs  to  the  Crown ;  in  T?ie  Matter  of  the  Hull 
and  Selby  Railway  Co.,  5  M.  &  W.  327;  Rex  v.  Lord  Yarborough, 
3  B.  &  C.  91;  s.  c.  2  Bligh  (K  S.),  147  (27  R  R  292).  The 
limit  to  which  the  Crown  would  be  entitled  by  the  rule  of  the 
civil  law  will  give  us  more  than  we  claim ;  by  that  law  the  shore 
is  defined  to  be  so  far  as  the  greatest  winter  tides  do  run. 
[Alderson,  B.  ,  referred  to  the  observations  of  Holroyd,  J. ,  in  the 
case  of  Blundell  v.  Catterall,  5  B.  &  Aid.  268,  292  (24  RR  353), 


560  MINES  AKD  MINERALS. 


Ho.  18. — Attomey-Oeneral  ▼.  Gliamben,  4  ]>e  0.  M.  &  O.  811,  212. 

as  to  the  variance  between  the  common  law  and  civil  law  in  regard 
to  maritime  rights,  showing  that  the  civil  law  was  not  any  guide  in 
such  matters.  ]  With  reference  to  the  word  **  ordinary, "  that  must 
be  intended  to  comprehend  such  phenomena  as  are  of  the  most 
constant  recurrence,  and  the  word  itself  is  just  as  applicable  to 
spring  as  neap  tides.  Anon, ,  Dyer,  326  b.  They  referred  to  Berry 
V.  Holden,  3  Dun.  &  Bell,  205;  Attorney -Oeneral  v.  Burridge,  10 
Price,  350  (24  R  R  705);  and  Attomey-General  y.  Parmeter,  10 
Price,  378  (24  R  R  723);  Lord  Stair's  Institutes,  vol.  ii.,  p. 
190.  They  also  relied  upon  the  observation  attributed  to  Lord 
Brougham  in  the  case  of  Smith  v.  Uie  Earl  of  Stair,  6  Bell,  App. 
Cas.  847,  indicating  a  preference  for  the  former  of  the  opinions 
which   is  to  be   found   in  page   12   of    the  treatise  *  De  Jure 

Maris. " 
[*212]       *Mr.    R    Palmer,    Mr.    Goldsmid,  and  Mr.    Mellish 
for  Mr.  Lewis, 

We  submit  that  the  neap  line  best  fulfils  the  definition  of 
"  ordinary  "  high-water  mark,  inasmuch  as  that  line  would  include 
land  covered  every  day  in  the  year  by  the  sea.  Lord  Hale, 
defining  the  shore  to  be  that  space  usually  overflowed  at  ordinary 
tides,  p.  26,  excludes  all  spring  tides.  On  this  principle  Parke, 
J.,  says,  in  the  case  of  Lowe  v.  Govett,  3  B.  &  Ad.  863  (37  R  R 
560),  "  In  the  absence  of  proof  to  the  contrary,  the  presump- 
tion as  to  such  land  (meaning  land  above  the  ordinary  high- 
water  mark)  is  in  favour  of  the  adjoining  proprietor.  *  The  only 
case  in  which  the  Crown  was  held  to  be  entitled  is  Attorney^ 
General  v.  Parmeter,  10  Price,  378  (24  R  R  723);  but  that  was 
the  case  of  a  nuisance,  and  there  the  parties  were  claiming  under 
the  Crown,  and  the  decision  was  that  the  grant  was  bad. 

If  the  right  of  conservancy  is  attributed  to  the  Crown  to  the 
extent  asserted  by  the  information,  the  consequence  will  be 
directly  repugnant  to  the  doctrine  laid  down  by  Lord  Hale,  in 
page  26  of  the  treatise  "  De  Jure  Maris,  *  •  and  would  include 
lands  which,  by  reason  of  their  being  uncovered  for  the  greatest 
part  of  the  year,  are  dry  and  maniorable. 

Mr.  Eoupell  and  Mr.  Dickinson  appeared  for  Messrs.  Sims, 
William,  &  Co. ,  lessees  under  Mr.  Lewis. 

Mr.  James  in  reply. 

In  Loive  v.  Govett  the  Crown  was  not  a  party ;  and  even  grant- 
ing   the    presumption    in  favour  of    the    adjacent    proprietors. 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINEBAL  PROPERTY.  561 

Ho.  18.  —  Attoni«7-Ctoii«nl  ▼.  Ghamben,  4  De  O.  M.  &  0.  218,  214. 

still  this  will  not  deprive  the  Crown  *  of  the  right  here  [*  213] 
asserted,  nor  dispense  with  the  obligations  of  protecting 
the  interests  of  the  public  for  the  purposes  of  navigation. 

At  the  conclusion  of  the  argument  the  learned  Judges  desired 
time  to  consider  the  question  which  had  been  submitted  to  them ; 
and  on  the  8th  July,  1854,  Mr.  Baron  Alderson,  on  behalf  of 
Mr.  Justice  Maule  and  himself,  delivered  the  following  joint 
opinion :  — 

My  Lord  Chancellor  : 

In  this  case,  on  which  your  Lordship  has  requested  the  assist- 
ance of  my  Brother  Maule  and  myself,  I  am  now  to  deliver  our 
joint  opinion  on  the  only  question  argued  before  us.  That  ques- 
tion, as  I  understand  it,  is  this :  What,  in  the  absence  of  all  evi- 
dence of  particular  usage,  is  the  limit  of  the  title  of  the  Crown  to 
the  seashore?  The  Crown  is  clearly,  in  such  a  case,  according 
to  all  the  authorities,  entitled  to  the  littus  maris  as  well  as  to  the 
soil  of  the  sea  itself  adjoining  the  coasts  of  England.  What,  then, 
according  to  the  authorities  in  our  law,  is  the  extent  of  this  littvs 
maris? 

This,  in  the  absence  of  any  grant,  or  usage  from  which  a  grant 
may  be  presumed,  is,  according  to  the  civil  law,  defined  as  the 
part  of  the  shore  bounded  by  the  extreme  limit  to  which  the 
highest  natural  tides  extend :  "  guatenus  hyhemus  fluctus  maximus 
excurrit ;  "  i,  e.,  the  highest  natural  tide ;  for,  according  to  Lord 
Stair's  exposition,  the  definition  does  not  include  the  highest 
actual  tides,  foi  these  may  be  produced  by  peculiarities  of  wind 
or  other  temporary  or  accidental  circumstances,  concurring  with 
the  flow  produced  by  the  action  of  the  sun  and  moon  upon  the 
ocean. 

But  this  definition  (even  thus  expoimded  by  the  *  author-  [♦  214] 
ities)  of  the  civil  law  is  clearly  not  the  rule  of  the  com- 
mon law  of  England. 

Mr.  Justice  Holroyd,  no  mean  authority,  in  his  very  elaborate 
judgment  in  the  case  of  Blundell  v.  Catterall,  5  B.  &  Aid.  268, 
290  (24  R  R  353),  mentions  this  as  one  of  the  instances  in  which 
the  common  law  differs  from  the  civil  law,  and  says  that  it  is 
clear  that,  according  to  our  law,  it  is  not  the  limit  of  the  highest 
tides  of  the  year,  but  the  limit  reached  by  the  highest  ordinary 
tides  of  the  sea,  which  is  the  limit  of  the  shore  belonging,  primd 
facie,  to  the  Crown.  What,  then,  are  these  *  highest  ordinary 
VOL.  XVII. —  36 


562  MINES  AND  MINERALS. 

Ho.  18.  —  Attoniey-Oenenl  y.  Cluunlwn,  4  ]>e  6.  X.  &  O.  214,  816. 

tides  r  Now  we  know  that,  in  fact,  the  tides  of  each  day,  nay, 
even  each  of  the  tides  of  each  day,  dififer,  in  some  degree,  as  to 
the  limit  which  they  reach.  There  are  the  spring  tides  at 
the  equinox,  the  highest  of  all.  These  clearly  are  excluded  in 
terms  by  Lord  Hale,  both  in  p.  12  and  in  p.  26  of  his  treatise 
"  De  Jure  Maris. "  For  though,  in  one  sense,  these  are  ordinary, 
i.  e.,  according  to  the  usual  order  of  nature,  and  not  caused  by 
accidents  of  the  winds  and  the  like,  yet  they  do  not  ordinarily 
happen,  but  only  at  two  periods  of  the  year.  These,  then,  are  not 
the  tides  contemplated  by  the  common  law,  for  they  are  not 
"  ordinary  tides, "  not  being  "  of  common  occurrence.  *  This  may, 
perhaps,  apply  to  the  spring  tides  of  each  month,  exclusive  of  the 
equinoctial  tides ;  and,  indeed,  if  the  case  were  without  distinct 
authority  upon  this  point,  that  is  the  conclusion  at  which  we  might 
have  arrived.  But  then  we  have  Lord  Hale's  authority,  p.  26, 
"  De  Jure  Maris,"  who  says,  "  Ordinary  tides  or  neap  tides  which 
happen  between  the  full  and  change  of  the  moon*  are  the  limit  of 
"  that  which  is  properly  called  Httus  maris;  *  and  he  excludes  the 
spring  tides  of  the  month,  assigning  as  the  reason,  that  the  "  lands 

covered  with  these  fluxes  are  for  the  most  part  of  the  year 
[*215]  dry  and  maniorable;"  i,  e.,   *  not  reached   by  the  tides. 

And  to  the  same  eflect  is  the  case  of  Lowe  v.  Oovett,  3 
B.  &  Ad.  863  (37  R  R  560),  which  excludes  these  monthly  spring 
tides  also. 

But  we  think  that  Lord  Hale's  reason  may  guide  us  to  the 
proper  limit  What  are  then  the  lands  which,  for  the  most  part 
of  the  year,  are  reached  and  covered  by  the  tides?  The  same 
reason  that  excludes  the  highest  tides  of  the  month  (which  happen 
at  the  springs)  excludes  the  lowest  high  tides  (which  happen  at  the 
neaps),  for  the  highest  or  spring  tides  and  the  lowest  high  tides 
(tliose  at  the  neaps)  happen  as  often  as  each  other.  The  medium 
tides,  therefore,  of  each  quarter  of  the  tidal  period  afford  a  criterion 
which,  we  think,  may  be  best  adopted.  It  is  true  of  the  limit  of 
the  shore  reached  by  these  tides,  that  it  is  more  frequently  reached 
and  covered  by  the  tide  than  left  uncovered  by  it.  For  about 
three  days  it  is  exceeded,  and  for  about  three  days  it  is  left  short, 
and  on  one  day  it  is  reached.  This  point  of  the  shore,  therefore, 
is  about  four  days  in  every  week,  i.  e.,  for  the  most  part  of  the  year, 
reached  and  covered  by  the  tides.  And  as  some,  not  indeed  per- 
fectly accurate  construction,  but  approximate,  must  be  given  to  the 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINEBAL  PROPERTY.  563 

Ko.  18. — Attomey-Qeiieral  ▼.  Ghamlwn,  4  ]>e  O.  X.  &  O.  816-217. 

words  "  highest  ordinary  tides  "  used  by  Mr.  Justice  Holroyd,  we 
think,  after  fully  considering  it,  that  this  best  fulfils  the  rules  and 
the  reasons  for  it  given  in  our  books. 

We,  therefore,  beg  to  advise  your  Lordship  that,  in  our  opinion, 
the  average  of  these  medium  tides  in  each  quarter  of  a  lunar  revo- 
lution during  the  year  gives  the  limit,  in  the  absence  of  all  usage, 
to  the  rights  of  the  Crown  on  the  seashore. 

July  15.    The  Lord  Chancellor.  —  The  question  for 
decision  is,  What  is  the  extent  of  the  *  right  of  the  Crown  to  [*  216] 
the  seashore  ?    Its  right  to  the  littus  maris  is  not  disputed. 
But  what  is  the  littiis  ?    Is  it  so  much  as  is  covered  by  ordinary 
spring  tides,  or  is  it  something  else  ? 

The  rule  of  the  civil  law  was  Est  autem  littus  maris  quatenus 
hyhermbs  fluctus  maximus  excurrit  This  is  certainly  not  the 
doctrine  of  our  law.  All  the  authorities  concur  in  the  conclusion 
that  the  right  is  confined  to  what  is  covered  by  "  ordinary  "  tides, 
whatever  be  the  right  interpretation  of  that  word.  By  hyhemus 
fluctus  maximus  is  clearly  meant  extraordinary  high  tides,  though, 
speaking  with  physical  accuracy,  the  winter  tide  is  not  in  general 
the  highest 

Land  covered  only  by  these  extraordinary  tides  is  not  what  is 
meant  by  the  seashore ;  such  tides  may  be  the  result  of  wind  or 
other  causes  independent  of  what  ordinarily  regulates  flux  and 
reflux.  Setting  aside  these  accidental  tides,  the  question  is,  What 
is  the  meaning  of  ordinary  ?  It  is  evidently  a  word  of  doubtful 
import  In  one  sense  the  highest  equinoctial  spring  tides  are 
"  ordinary ; "  i.  e.,  they  occur  in  the  natural  order  of  things.  But  this 
is  evidently  not  the  sense  in  which  the  word  *  ordinary  *  is  used, 
when  designating  the  extent  of  the  Crown's  right  to  the  shore. 
Treatise  De  Jure  Maris,  pp.  12,  25. 

Disregarding,  then,  extreme  tides,  we  next  come  to  the  ordinary 
spring  tides,  i, «.,  the  spring  tides  of  each  lunar  month.  No  doubt, 
speaking  scientifically,  they  probably  all  differ ;  but  practically  this 
may  be  disregarded.  Lord  Hale  gives  no  absolute  decided  opinion, 
but  he  evidently  leans  very  strongly  against  the  right  to  the  land 
covered  only  by  spring  tides  (treatise  De  Jure  Maris,  p.  26), 
and  refers  to  decisions  which  *  support  his  views.  Then  he  [*  217] 
describes  ordinary  tides  as  if  synonymous  with  neap  tides. 

This  leaves  the  question  very  much  at  large,  and  there  is  very 
little  of  modern  authority.     In  Blundell  v.  Catterall  Mr.  Justice 


564  MINES  AND  MINERALS. 

Ho.  13.  —  Attorney-Oeneral  ▼.  Ghamlwn,  4  De  0.  X.  &  0.  217,  218. 

HoLROYD  says,  by  the  common  law  it,  i.  e.,  the  shore,  is  con&ned 
to  the  flux  and  reflux  of  the  sea  at  ordinary  tides,  meaning  the  land 
covered  by  such  flux  and  reflux. 

Still  the  question  remains.  What  are  ordinary  tides?  The 
nearest  approach  to  direct  authority  is  Lowe  v.  Govett  There 
certain  recesses  on  the  coast  covered  by  the  high  water  of  ordinary 
spring  tides,  but  not  by  the  medium  tides  between  spring  and  neap 
tides,  were  held  not  to  pass  under  an  Act  vesting  in  a  company 
an  arm  of  the  sea  daily  overflowed  by  it.  Lord  Tenterden  held 
that  these  recesses  were  not  ordinarily  overflowed  by  the  sea,  which 
shows  clearly  that  he  did  not  consider  the  overflowing  by  ordinary 
spring  tides  to  be  what  is  meant  by  ordinarily  overflowing ;  and 
both  Mr.  Justice  Littledale  and  Mr.  Justice  (now  Baron)  Parke 
concur  in  saying,  that  the  recesses  in  question  were  above  ordinary 
high-water  mark,  clearly  showing  their  opinion  to  be,  that  what  is 
meant  by  ordinary  high-water  mark  is  not  so  high  as  the  limit  of 
high  water  at  ordinary  spring  tides. 

There  is,  in  truth,  no  further  authority  to  guide  us ;  for  the 
question  did  not  arise  in  either  of  the  cases  of  Attorney-General  v. 
Burridge,  10  Price,  350  (24  E.  E.  705),  or  Attorney-General  v.  Parme- 
ter,  10  Price,  378  (24  E.  E.  723),  as  to  the  buildings  at  Portsmouth. 
In  this  state  of  things,  we  can  only  look  to  the  principle 
[*  218]  *  of  the  rule  which  gives  the  shore  to  the  Crown.  That 
principle  I  take  to  be,  that  it  is  land  not  capable  of  ordinary 
cultivation  or  occupation,  and  so  is  in  the  nature  of  unappropriated 
soil.  Lord  Hale  gives  as  his  reason  for  thinking  that  lands  only 
covered  by  the  high  spring  tides  do  not  belong  to  the  Crown,  that 
such  lands  are  for  the  most  part  dry  and  maniorable  ;  and  taking 
this  passage  as  the  only  authority  at  all  capable  of  guiding  us,  the 
reasonable  conclusion  is,  that  the  Crown's  right  is  limited  to  land 
which  is,  for  the  most  part,  not  dry  or  maniorable. 

The  learned  Judges  whose  assistance  I  had  in  this  very  obscure 
question,  point  out  the  limit  indicating  such  land  is  the  line  of  the 
medium  high  tide  between  the  springs  and  the  neaps.  All  land 
below  that  line  is  more  often  than  not  covered  at  high  water,  and 
so  may  justly  be  said,  in  the  language  of  Lord  Hale,  to  be  covered 
by  the  ordinary  flux  of  the  sea.  This  cannot  be  said  of  any  land 
above  that  line ;  and  I,  therefore,  concur  with  the  able  opinion  of 
the  Judges  whose  valuable  assistance  I  had,  in  thinking  that  that 
medium  line  must  be  treated  as  bounding  the  right  of  the  Crown. 


R.  C.  VOL.  XVn.]  SECT.  I. —  MINERAL  PROPERTY.  565 

Ho.  13.-*Att.-G6n.  y.  duunben ;  Att.-06n.  y.  Bees,  4  De  G.  &  J.  6&-6*t. 

Attomey-Oeneral  v.  Chambers. 
Attomey-Oeneral  v.  Bees. 

4  De  G.  &  J.  55-73  (s.  c.  5  Jur.  (N.  S.)  745). 

The  facts  as  ascertained,  when  these  cases  came  on  for  further 
consideration,  sufficiently  appear  from  the  following  judgment. 
The  following  cases  were  referred  to  in  argument:  Smart 
V.  Magistrates  of  Dundee,  8  Bro.  P.  C.  (Tomlin's  ed.)  119;  [55] 
Todd  V.  Dunlop,  2  Eobinson's  App.  Ca.  333;  Attorney- 
General  to  Prince  of  Wales  v.  St  Aubyn,  Wightwick,  167  (12  R  R 
718  w.) ;  Attorney-General  v.  Chamherlaine,  4  K.  &  J.  292 ;  Bex  v. 
Lord  Yarborough,  3  B.  &  C.  91  (27  R  E.  292) ;  Scratton  v.  Broivn, 
4  B.  &  C.  485  (28  R  R  344) ;  lord  Advocate  v.  Hamilton,  1  Macq. 
46 ;  Hale,  De  Jure  Maris,  Hargrave's  Law  Tracts,  pp.  14,  15,  20, 
28,  35 ;  Be  Hull  and  Selby  Bailway  Co,,  5  M.  &  W.  327. 

April  20.    The  Lord  Chancellor  (Lord  Chelmsford).        [56] 

These  cases  come  on  to  be  heard  before  me  on  further 
directions,  and  arise  upon  informations  filed  by  the  Attorney- 
General  for  the  purpose  of  asserting  and  establishing  the  rights 
of  the  Crown  upon  the  seashore  in  the  parishes  of  Llanelly  and 
Pembrey,  in  the  county  of  Carmarthen.  The  informations  origi- 
nally included  several  defendants,  but  their  cases  have  all  been 
disposed  of,  and  the  defendants  David  Lewis  and  John  Hughes 
Eees  are  the  only  parties  who  are  now  resisting  the  claims  of  the 
Crown. 

The  defendant  Lewis  is  a  party  to  both  the  informations,  as  the 
owner  of  lands  in  both   the  parishes  of  Llanelly  and  Pembrey. 
The  defendant  Rees  is   a  party   only  to   the  information   which 
relates  to  the  parish  of  Pembrey.     The  prayer  of  each  informa- 
tion is  the  same  mutatis  mutandis,  — "  That  the  right  of  her 
Majesty  to  the  seashore,  below  high-water  mark,  may  be  estab- 
lished and  declared,  and  that  any  leases  or  licenses  to  embank  or 
build  upon,  or  to  dig  or  raise  coal  or  culm  from  the  seashore, 
may  be  declared  null  and  void ;  that  the  boundary  or  mark  to  ' 
which  the  sea  flowed  at  high  water,  at  ordinary  high  tides,  upon 
the  shore  before  certain  embankments  and  buildings  were 
erected  thereon,  and  also  *  those  portions  of  the  works  or  [*  57] 
mines  from  which  coal  or  culm  is  gotten,  which  lie  under 
the  land  of  her  Majesty,  may  be  ascertained  and  distinguished; 


566  MINES  AND  MINERALS. 

Ho.  18.  —  Att.-Oen.  y.  duunben ;  Att.-OeiL  ▼.  Beei,  4  Do  O.  &  J.  67,  6S. 

and  that,  if  necessary,  a  commission  may  issue  for  the  purpose 
of  ascertaining  and  distinguishing  the  same." 

Of  the  defendants,  to  whom  I  have  generally  referred.  Lord 
Cawdor  opposed  the  claim  of  the  Crown  on  the  ground  that  he 
was  lord  of  the  manor  of  Kidwelly,  and  as  such  that  he,  and  not 
the  Crown,  wtis  the  owner  of  the  seashore  within  the  manor. 

Another  defendant,  Mr.  Chambers,  claimed  to  have  become  the 
owner  of  the  seashore  adjoining  his  lands,  by  the  exercise  of  long- 
continued  acts  of  ownership. 

The  defences,  therefore,  of  Lord  Cawdor  and  of  Mr.  Chambers 
met  the  whole  case  of  the  Crown,  and,  if  they  could  have  been 
established,  would  have  terminated  the  dispute  so  far  as  the 
Crown  was  concerned.  Accordingly,  on  the  cause  coming  on  to 
be  heard  before  the  Master  of  the  Kolls,  his  Honour,  on  the 
21st  of  January,  1852,  directed  certain  issues  to  be  tried  between 
the  Crown  and  Lord  Cawdor  and  between  the  Crown  and  Mr. 
Chambers,  to  determine  the  questions  which  had  been  raised 
between  them  respectively.  Before  the  issues  with  Mr.  Chambers 
came  on  to  be  tried  he  abandoned  his  opposition  and  consented 
to  take  a  lease  of  the  seashore  from  the  Crown. 

The  order  of  the  Master  of  the  Eolls  was  thereupon  amended, 
and  the  issues  directed  were  confined  to  those  between  the  Crown 
and  Lord  Cawdor.  Upon  these  issues  coining  on  to  be  tried, 
Lord  Cawdor  submitted,  upon  certain  conditions,  to  a  verdict 
being  entered  for  the  Crown.  Thus,  as  to  these  defend- 
[*  58]  ants,  the  right  of  the  Crown  to  *  the  seashore,  within  the 
parishes  of  Llanelly  and  Pembrey,  was  established 

The  question  then  arose,  what  was  the  true  boundary  of  the 
seashore;  the  defendants  Lewis  and  Bees  contending  that  the 
utmost  limit  of  the  Crown's  right  wa^  the  line  of  high-water  mark 
of  ordinary  neap  tides. 

For  the  purpose  of  determining  this  question  it  was  arranged, 
as  to  the  defendant  Lewis,  that  the  cause  should  be  set  down 
on  further  directions,  and,  by  consent  of  the  Lord  Chancellor, 
should  be  heard  by  him,  in  the  first  instance,  assisted  by  two 
common-law  Judges. 

The  question  was  accordingly  argued  before  the  Lord  Chancellor 
(Lord  Cranworth),  Baron  Alderson,  and  Mr.  Justice  Maule, 
and  on  the  15th  of  July,  1854,  they  pronounced  their  judgment : 
"That  the  landward  boundary   of  the  seashore  or  litttLs  maris 


R.  C.  VOL.  XVII.]  SECT.  I. —  MINERAL  PROPERTY.  567 

Ho.  18.  —  Att.-Gen.  ▼.  duonben ;  Att.-0«iL  ▼.  Beet,  4  Do  G.  &  J.  58,  69. 

around  England  and  Wales  is  the  medium  line  of  the  high  water 
of  all  tides  occurring  in  the  ordinary  course  of  nature  throughout 
the  year"  (p.  555,  ante^. 

Having  thus  obtained  a  definition  of  the  boundary  of  the  rights 
of  the  Crown  on  the  seashore,  the  next  thing  to  be  done  was  to 
ascertain  and  lay  down  the  line  so  defined  in  such  parts  of  the 
seashore  as  were  adjacent  to  the  lands  of  the  defendants  Lewis 
and  Eees,  and  by  consent  it  was,  by  order  of  the  22nd  of  January, 
1855,  referred  to  the  late  Mr.  Rendel,  an  engineer  of  eminence, 
to  make  a  plan  **  of  so  much  and  such  parts  of  the  shores  of  the 
rivers  Bury  and  Lougher,  in  the  information  mentioned,  as  is  or 
are  adjacent  to  the  several  lands  in  the  possession  of  the 
defendants  David  Lewis  and  John  *  Hughes  Eees,  or  their  [*  59] 
respective  lessees  in  the  information  mentioned,  and  to  as- 
certain and  lay  down  upon  such  plans  the  present  medium  line 
of  high  water,  as  hereinbefore  defined;  and  the  said  James 
Meadows  Eendel  is  to  be  at  liberty,  if  he  should  think  fit,  but 
not  otherwise,  to  report  the  grounds  on  which  he  has  proceeded, 
or  to  report  any  matters  specially  to  this  Court ;  and  it  is  ordered 
that  such  plans,  when  signed  by  the  said  James  Meadows  Bendel, 
be  deposited  with  the  clerk  of  the  records  and  writs  in  whose 
division  these  causes  are,  with  liberty  for  all  parties  to  inspect 
the  same  as  they  shall  be  advised,  at  all  reasonable  times,  giving 
reasonable  notice  thereof ;  and  it  is  ordered  that  such  plans,  when 
80  signed  and  deposited  as  aforesaid,  be,  subject  to  any  order  of 
the  Court,  binding  and  conclusive  upon  the  Crown  and  upon  the 
defendants  now  appearing  as  to  the  present  medium  of  high  water ; 
but  the  said  reference  and  plans  are  to  be  without  prejudice  to 
such  right  and  claim,  if  any,  of  the  Crown  to  such  land,  if  any,  as 
was  formerly  below  but  is  now  above  the  medium  line  of  high 
water  of  all  tides  throughout  the  year,  and  without  prejudice  to 
any  other  question  in  the  cause." 

This  order  was  afterwards  varied,  so  far  as  the  defendant  Lewis 
was  concerned,  by  limiting  it  to  such  parts  of  the  shore  as  are 
adjacent  to  certain  specified  lands  belonging  to  him  in  the  parish 
of  Llanelly. 

Mr.  Eendel  died  in  November,  1856,  without  having  completed 
or  reported  upon  the  matters  referred  to  him,  whereupon,  on 
petition  of  the  Attorney-General,  by  an  order  of  the  Lord  Chan- 
cellor of  the  1st  of  May,  1857,  Mr.  George  Parker  Bidder,  the 


568  MIKES  AND   MINERALS. 


Ho.  18.  — Att-Oen.  y.  Chambers ;  Att.-Gen.  y.  Beei,  4  Do  0.  &  J.  69-61. 

civil  engineer,  was  appointed  to  act,  in  the  place  of  Mr.  Eendel, 
in  making  the  plans  and  ascertaining  and  laying  down  the  medium 

line  of  high  water  directed  to  be  made  and  ascertained  and 
[*  60]  *  laid  down,  Mr.  Bidder  being  at  liberty  to  adopt  any  plans 

already  made  by  Mr.  Eendel. 
Mr.  Bidder  made  his  report,  3rd  of  July,  1858,  in  which  he 
states  as  follows :  "  I  have  ascertained  and  laid  down  upon  the 
plan,  hereto  annexed,  so  much  of  the  shores  of  the  river  Bury  and 
Lougher,  in  the  pleadings  in  these  causes  mentioned,  as  is  or  are 
adjacent  to  the  land  in  the  pleadings  in  these  causes  mentioned 
of  the  defendant  David  Lewis  or  his  lessees,  in  the  parish  of 
Llanelly,  in  the  county  of  Carmarthen  (that  is  to  say)."  Then  he 
mentions  the  different  farms,  and  says,  "I  have  ascertained  and 
laid  down  upon  the  same  plan  the  present  medium  line  of  high 
water  upon  those  parts  of  those  shores  of  all  tides  occurring  in 
the  ordinary  course  of  nature  throughout  the  year."  Then  he 
makes  a  special  report,  and  he  says,  "I  report  specially  to  the 
Court  that,  in  my  judgment,  the  natural  line  of  high  water  be- 
tween the  points  marked  K.  and  Z.  on  the  said  plan  has  been 
more  or  less  varied  by  the  direct  or  indirect  operation  of  artificial 
causes ;  and  I  particularly  call  attention  to  the  fact  that  the  pres- 
ent medium  line  of  high  water,  as  laid  down  upon  the  said  plan 
hereto  annexed,  does  not,  in  my  judgment,  represent,  at  the  points 
marked  on  the  said  plan  with  the  letter  A.,  the  medium  line  as 
existing  previous  to  the  construction  of  the  South  Wales  Rail- 
way ;  and  further,  that  at  the  bank  of  sand,  marked  C.  on  the 
said  plan,  the  natural  medium  line  of  high  water  has  heretofore 
been  and  still  continues  affected  by  the  gradual  accretion  of  that 
sand-bank  by  the  indirect  operation  of  artificial  causes ;  and 
further,  that  the  medium  line  of  high  water  has  been  varied  and 
still  is  continually  affected  by  the  direct  operation  of  artificial 
causes  at  the  points  in  the  harbour  of  Llanelly  marked  with  the 
letter  B.  on  the  said  plan." 

Upon  this  report  of  Mr.  Bidder  the  Crown  now  claims 
[*  61]   *  to  have  the  line  of  medium  high  tide  ascertained  and  laid 

down  as  it  ought  to  have  existed,  and  as  it  would  have  ex- 
isted at  the  time  of  filing  the  information,  but  for  the  artificial 
causes  to  which  he  refers.  This  proposed  limitation  of  the  inquiry 
to  the  period  of  the  filing  of  the  information  will  exclude  the 
consideration  of  the  effects  produced  by  the  South  Wales  Eailway 


K.  C.  VOL.  XVIL]  sect.  I.  —  MINERAL  PROPERTY.  569 

No.  18.  —  Att.-Oen.  ▼.  duunben ;  Att-Ctan.  ▼.  Beei,  4  Do  G.  &  J.  61,  62. 

mentioned  in  Mr.  Bidder's  report,  which  was  not  in  existence  at 
the  time  when  the  information  was  filed. 

The  claim  now  made,  on  the  part  of  the  Crown,  involves  a 
question  of  novelty  and  of  some  difi&culty,  which  may  be  stated, 
in  general  terms,  to  be,  whether  the  well-known  rule  of  law  as  to 
the  right  of  land  gained  from  the  sea  is  applicable  to  a  case  where 
the  alluvium  or  dereliction  has  not  been  the  result  of  merely 
natural  causes? 

This  question  seems  to  me  raised  with  sufl&cient  certainty  by 
tlie  informations  and  the  answers.  I  will  take  the  allegations  in 
the  information  which  relates  to  Mr.  Lewis's  lands  in  Llanelly. 

It  states  thus  :  "  Certain  pieces  of  land  "  (which  are  mentioned) 
"  abut  on  the  seashore  of  the  Bury  Kiver,  and  about  thirty  years 
ago  there  were  erected,  without  any  license  or  consent  of  her 
Majesty's  predecessors,  partly  upon  that  piece  of  land  which  is 
called  Penrose  Taur  Farm,  and  partly  on  the  seashore  in  front 
thereof,  lying  within  the  harbour  of  Llanelly,  extensive  buildings 
and  works,  in  and  at  which  there  has  been  and  is  now  carried 
on  the  business  of  copper-smelting  by  the  former  and  present 
members  of  a  copartnership,  in  whose  occupation  the  buildings 
and  works  now  are,  who  carry  on  the  business  under  the  name 
of  Sims  &  Co.,  which  said  firm  or  copartnership  consists  of  the 
following  members"  (it  mentions  their  names),  "all  of  whom 
are  defendants."  "Subsequently  to  the  erection  of  the 
copper-works,  the  *  firm  of  Sims  &  Co.,  without  the  license  [*  62] 
and  consent  of  her  Majesty  or  of  her  Majesty's  predecessors, 
raised,  or  caused  to  be  raised,  on  the  seashore  in  front  of  the  said 
pieces  of  land  called  respectively  Penrose  Vach  Farm,  Penros  Faur 
Farm,  the  Morvadhu  and  Bryn  Farm,  very  extensive  embank- 
ments, formed  principally  with  the  slag  and  rubbish  produced 
by  their  copper- works ;  and  upon  the  said  embankment  the  said 
Messrs.  Sims  &  Co.  have  constructed  a  wharf,  coal-yards,  a  large 
chimney-stack,  store-houses  and  other  buildings  connected  with 
their  copper- works ;  and  also  a  considerable  extent  of  railway 
adjoining  and  leading  to  the  dock  formed  in  and  by  the  said 
embankment  of  slag  and  rubbish,  that  the  said  embankment  of 
slag  and  rubbish,  by  reason  of  its  being  carried  out  a  considerable 
way  into  the  harbour  of  Llanelly  and  its  impeding  the  former  line 
and  scour  of  the  tides,  has  caused  a  considerable  silting  up  the 
parts  of  the  harbour  which  lie  adjacent  to  it  on  either  side ;  and 


570  MINES  AND   MINERALS. 


Ho.  13. — Att-Gen.  ▼.  Chamben ;  Att.-G«iL  y.  Beof,  4  De  G.  &  J.  ttl,  68. 

portions  of  the  shore  of  the  said  Bury  Eiver  adjoining  the  land, 
which  was  formerly  covered  by  the  sea  at  ordinary  high  tides, 
have,  in  consequence  thereof,  become  either  permanently  dry  land 
or  only  covered  at  extraordinary  high  tides."  It  then  charges 
*'  that  the  embankment  formed  by  Sims  &  Co.,  by  throwing  out 
slag  and  rubbish,  are  encroachments  upon,  and  nuisances  in,  the 
port  of  Llanelly;  and  that,  owing  to  the  said  slag  embankment 
projecting  far  into  the  port,  and  the  other  encroachments  on  the 
seashore,  by  and  under  the  pretended  title  or  authority  of  the 
defendants  respectively,  the  sea  has  been  prevented  flowing  and 
reflowing  over  many  parts  of  the  shore  over  which  it  had,  antece- 
dently to  such  encroachments,  flowed  and  reflowed  from  time 
immemorial,  and  should  have  continued  to  flow  and  reflow  if  such 
encroachments  had  not  been  made."  Then  it  charges  that  such 
portions  of  alluvial  land,  so  formed  by  or  gained  from  the 
[*  63]  sea,  have  not  been  added  to  the  *  adjoining  main  land  by 
the  gradual  and  imperceptible  projection  of  soil  or  silt  upon 
the  shore,  arising  from  the  operation  of  natural  causes,  but  that  the 
same  had  been  produced  by  the  works  and  artificial  embankments 
raised  by,  and  by  leave  and  license  of,  the  defendants  respectively ; 
and  charges  that  all  such  additions  to  the  main  land  as  have  been 
produced  by  or  caused  by  illegal  erections  of  embankments  or  other 
purprestures  upon  the  seashore  belonging  to  her  Majesty  do  not  be- 
long to  the  owner  of  the  adjacent  lands,  but  belong  to  her  Majesty. 
The  defendant  Lewis,  by  his  answer,  submits  that  the  right  of 
the  Crown  does  not  extend  beyond  high-water  mark  of  ordinary 
neap  tides,  "  and  does  not  extend  to  or  embrace  any  alluvium,  the 
same  being  of  gradual  formation,  whether  the  same  shall  have 
been  produced  by  natural  or  unknown  causes,  or  by  cuttings  or 
embankments  lawfully  made,  or  other  lawful  artificial  means." 
Then  he  says,  that  he  denies  that  such  portions  of  the  land  so 
formed  on  the  seashore,  as  in  the  information  is  mentioned,  if  any 
such  land  there  be,  have  not  been  added  to  the  adjoining  main 
land  by  natural  alluvion.  And  he  says  that  he  denies  that  the 
same,  if  any  such  there  be,  had  been  produced  by  the  works  and 
artificial  embankments  raised  by,  and  by  license  from,  the  defend- 
ant or  other  defendants  respectively,  or  any  of  them  ;  but  whether 
the  same  lands,  if  any  such  there  be,  have  or  have  not  been  pro- 
duced by  such  works  and  artificial  embankments,  yet  inasmuch  as 
such  works  and  embankments  were  lawfully  made,  and,  as  to  all 


R.  C.  VOL.  XVII.]  SECT.  I.  —  MINEEAL  PROPERTY.  571 

Ho.  13.  — Att-Oen.  ▼.  Chambers;  Att-Oen.  ▼.  Beet,  4  De  G.  &  J.  63-66. 

or  some  of  them,  under  the  authority  of  an  Act  of  Parliament, 
defendant  submits  that  the  same  do  not  belong  to  her  Majesty, 
but  to  the  owners  of  the  adjoining  land.  Then  he  further  says 
that  he  cannot  answer  as  to  his  belief  or  otherwise  whether  the 
other  defendants  do  or  do  not  allege,  that  said  pieces  of 
land,  as  formed  upon  the  said  secushore,  as  *  in  the  said  [*  64] 
amended  information  mentioned,  if  any  such  there  be,  have 
been  added  to  the  adjoining  land  by  a  gradual  or  imperceptible 
projection  or  subsidence  of  soil  or  silt,  and  that  the  same  were 
produced  by  natural  causes ;  and  that  although  such  pieces  of 
land  have  been  produced  by  the  operation  of  artificial  causes,  or 
by  embankments,  or  by  cutting  channels,  yet  the  same  belong  to 
the  defendants,  the  owners  of  the  adjoining  lands,  and  that  such 
portions  of  alluvial  land  so  formed  by,  or  gained  from,  the  sea, 
have  been  added  to  the  adjoining  main  land  by  the  gradual  and 
imperceptible  projection  of  soil  or  silt  upon  the  seashore  arising 
from  the  operation  of  natural  causes,  and  that  the  same  have  not 
been  produced  by  the  works  and  artificial  embankments  by,  or  by 
leave  or  license  of,  the  defendants. 

I  think,  therefore,  that  the  information  and  the  answer,  taken 
t<^ether,  raise  the  issue  as  to  the  right  of  the  Crown  to  alluvium 
produced  by  artificial  causes. 

The  fact  of  the  line  of  high  water  having  materially  varied 
upon  parts  of  the  shore  adjoining  to  some  part  of  the  defendants' 
lands  is,  I  think,  clearly  proved  by  several  witnesses,  and  may  be 
assumed,  upon  the  report  of  Mr.  Bidder,  to  have  been  the  result 
of  the  operation  of  artificial  causes.  These  causes  appear  to  have 
been  partly  the  copper- works  of  Sims  &  Co. ,  which  were  erected 
in  1804  and  1805,  and  the  buildings  which  were  subsequently 
added,  but  principally  the  embankment  formed  by  throwing  slag 
and  rubbish  on  the  seashore  by  Messrs.  Sims  &  Co.,  by  which  the 
main  land  (as  it  is  stated)  has  been  raised  or  has  silted  up,  and 
considerable  portions  of  what  was  formerly  seashore  have  been 
added  to  the  main  land. 

This  embankment  appears  to  have  extended  as  far  as 
*  some  of  the  lands  of  the  defendant  Lewis,  viz.,  to  Pen-  *  [65] 
rose  Farm,  as  stated  by  the  witnesses  Dankin  and  Garrett, 
and  to  Bryn  Farm,  as  shown  by  David  Griffith,  and  to  have  indi- 
rectly affected  the  line  of  high  water  upon  the  shore   adjoining 
•other  lands  belonging  to  him. 


572  MIKES  AND  MINERALS. 


Ho.  18.  — Att-0«iL  ▼.  Chambers ;  Att.-0«iL  y.  Beei,  4  De  O.  &  J.  65,  68. 

The  embankment  I  collect  from  the  evidence  to  have  been  the 
ordinary  spoil  bank  always  produced  by  the  regular  and  accus- 
tomed operations  of  copper-works. 

It  will  be  necessary,  before  I  consider  the  rights  of  the  Crown 
upon  the  facts  just  stated,  to  clear  the  case  of  all  that  relates  to 
Stanley  Marsh.  The  defendant  Lewis  claims  the  seashore  in 
front  of  this  part  of  his  property  upon  the  ground  of  uninterrupted 
enjoyment  for  sixty  years. 

During  the  course  of  the  argument  I  intimated  a  strong  opinion 
that  the  acts  of  ownership  upon  which  the  defendant  relies  were 
quite  insufficient  to  prove  actual  possession.  They  consisted  merely 
of  turning  out  upon  the  marsh  the  cattle  of  the  defendant,  which 
crossed  the  invisible  line  of  boundary  separating  the  marsh  from 
the  seashore,  and  the  cattle  being  allowed  thus  to  stray  without 
interruption.  But  the  effect  of  acts  of  ownership  must  depend 
partly  upon  the  acts  themselves  and  partly  upon  the  nature  of 
the  property  upon  which  they  are  exercised.  If  cattle  are  turned 
upon  enclosed  pasture  ground  and  placed  there  to  feed  from  time 
to  time,  it  is  strong  evidence  that  it  is  done  under  an  assertion  of 
right ;  but  where  the  property  is  of  such  a  nature  that  it  cannot 
be  easily  protected  against  intrusion,  and  if  it  could  it  would  not 
be  worth  the  trouble  of  preventing  it,  there,  mere  user  is  not 
sufficient  to  establish  a  right,  but  it  must  be  founded  upon  some 
proof  of  knowledge  and  acquiescence  by  the  party  interested 
[*  66]  in  resisting  it,  or  by  perseverance  in  the  *  assertion  and 
exercise  of  the  right  claimed  in  the  face  of  opposition. 

The  defendant's  rights  in  the  seashore,  opposite  Stanley  Marsh, 
will  not,  therefore,  be  different  from  those  which  he  is  entitled  to 
in  respect  of  his  other  lands,  and  the  claim  of  the  Crown  to  all 
accretions  produced  by  artificial  causes  may  be  considered  with 
reference  to  all  the  defendant's  lands  without  distinction.  There 
is  very  little  authority  to  guide  us  upon  the  question,  which,  as 
far  as  I  can  discover,  is  now  raised  for  the  first  time.  None  of  the 
cases  cited  in  the  course  of  the  argument  throw  much  light  upon 
it.  Indeed,  with  the  exception  of  the  cases  of  Hex  v.  Lord  Yar- 
borough,  of  the  Hull  and  Selby  Railway  Company y  and,  perhaps, 
of  Scratton  v.  Brown,  there  is  not  one  wliich  bears  at  all  upon  the 
point  of  slow  and  insensible  accretions  on  the  seashore,  whether 
naturally  or  artificially  produced. 

In  Smart  v.  The  Magistrates  and  Town  Council  of  Dundee,  8  Bro. 


B.  C.  VOL.  XVIL]  sect,  L  —  MINERAL  PROPERTY.  573 

Vo.  13.  -—  Att-Oen.  y.  Chamben ;  Att.-Oe&.  y.  Beei,  4  De  G.  &  J.  68,  67. 

P.  C.  119,  which  was  the  case  of  a  grant  of  premises  on  the  sea- 
shore, described  as  bounded  on  the  south  by  the  sea-flood,  it  was 
held  that  the  grantee  had  no  right  to  follow  the  sea,  or  to  have 
the  land  acquired  from  it  or  left  by  it  where  it  had  receded ;  but 
the  claim  of  the  grantee  was  not  to  follow  the  sea,  which  had 
receded  slowly  and  insensibly,  but  he  insisted  that  his  property, 
being  described  as  bounded  on  the  south  by  the  sea-flood,  he  was 
entitled,  both  by  the  special  terms  of  the  grant  and  by  the 
common  law,  to  take  in  ground  from  the  sea,  by  embankments 
and  other  operations  of  the  same  kind,  opposite  to  his  property. 

The  case  of  Todd  v.  Dunlop,  2  Eobinson's  Appeal  Cases, 
333,  which  was  decided  *  upon  the  authority  of  Smart  v.  [*  67] 
Magistrates  of  Dundee,  was,  as  far  as  can  be  collected  from 
the  short  statement  of  the  facts,  not  a  case  of  gradual  and  imper- 
ceptible accretion,  but  of  sudden  acquisition  of  additional  land  by 
the  operations  of  the  trustees  of  the  river  Clyde.  It  therefore 
differed  from  the  case  of  Scratton  v.  Brovm,  4  B.  &  C.  485  (28  R  R 
344),  where  the  advance  of  the  sea  had  been  gradual  and  imper- 
ceptible, and  the  high  and  low  water  mark  had  varied  in  the  same 
degree,  and  where  it  was  held  that  the  freehold  of  the  grantee 
of  the  shores  and  sea-grounds  shifted  as  the  sea  receded  or 
encroached. 

There  is  nothing,  however,  in  any  of  the  cases,  or  in  the  few  text- 
writers  upon  the  subject,  which  hints  at  the  distinction  now 
sought  by  the  Crown  to  be  established  between  effects  produced 
by  natural  and  by  artificial  causes.  In  order  to  determine  whether 
there  is  any  ground  for  this  distinction,  it  is  essential  to  discover, 
if  possible,  the  principle  upon  which  the  right  to  maritima  ere* 
menta  depends. 

The  law  is  stated  very  succinctly  by  Blackstone,  voL  ii.  p.  262, 
in  these  words:  "As  to  lands  gained  from  the  sea,  either  by 
alluvion,  by  the  washing  up  of  sand  and  earth,  so  as  in  time  to 
make  terra  firma,  or  by  dereliction,  as  when  the  sea  shrinks  back 
below  the  usual  water  mark ;  in  these  cases  the  law  is  held  to  be, 
that  if  this  gain  be  by  little  and  little,  by  small  and  imperceptible 
degrees,  it  shall  go  to  the  owner  of  the  land  adjoining.  For  de 
minimis  non  curat  lex  ;  and  besides,  these  owners  being  often  losers 
by  the  breaking  in  of  the  sea,  or  at  charges  to  keep  it  out,  this 
possible  gain  is,  therefore,  a  reciprocal  consideration  for  such 
possible  charge  or  loss ;  but  if  the  alluvion  or  dereliction  be  sud- 


574  MINES  AND  MIN£&ALS. 


Ho.  18.  ~  Att-Oon.  ▼.  Ghamben;  Att.-Qm.  ▼.  Beof,  4  De  G.  &  J.  68^  69. 

[*  68]  den  and  considerable  *  in  this  case  it  belongs  to  the  Eling, 
for  as  the  King  is  lord  of  the  sea,  and  as  owner  of  the 
soil  while  it  is   covered  with  water,  it   is  but  reasonable  he 
should  have  the  soil  when  the  water  has  left  it  dry." 

I  am  not  quite  satisfied  that  the  principle  de  minimis  non  curat 
lex  is  the  correct  explanation  of  the  rule  on  this  subject ;  because, 
although  the  additions  may  be  small  and  insignificant  in  their 
progress,  yet,  after  a  lapse  of  time,  by  little  and  little,  a  very  large 
increase  may  have  taken  place  which  it  would  not  be  beneath  the 
law  to  notice,  and  of  which  the  party  who  has  the  right  to  it  can 
clearly  show  that  it  formerly  belonged  to  him,  he  ought  not  to  be 
deprived.  I  am  rather  disposed  to  adopt  the  reason  assigned  for 
the  rule  by  Baron  Aldebson,  in  the  case  of  The  Hull  and  Selhy 
Railway  Comjpany,  5  M.  &  W.  327,  viz.,  "  That  which  cannot  be 
perceived  in  its  progress  is  taken  to  be  as  if  it  never  had  existed  at 
alL"  And  as  Lord  Abingeb  said  in  the  same  case,  "The  principle" 
as  to  gradual  accretion  "  is  founded  on  the  necessity  which  exists 
for  some  such  rule  of  law  for  the  permanent  protection  and  adjust- 
ment of  property."  It  must  always  be  borne  in  mind  that  the  ovmer 
of  lands  does  not  derive  benefit  alone,  but  may  suffer  loss  from  the 
operation  of  this  rule ;  for  if  the  sea  gradually  steals  upon  the  land, 
he  loses  so  much  of  his  property,  which  is  thus  silently  transferred 
by  the  law  to  the  proprietor  of  the  seashore.  If  this  be  the  true 
ground  of  the  rule,  it  seems  diflScult  to  understand  why  similar 
effects,  produced  by  a  party's  lawful  use  of  his  own  land,  should 
be  subject  to  a  different  law,  and  still  more  so  if  these  effects  are 
the  result  of  operations  upon  neighbouring  lands  of  another  proprie- 
tor. Whatever  may  be  the  nature  and  character  of  these 
[*  69]  operations,  they  ought  not  to  affect  a  rule  which  *  applies 
to  a  result  and  not  to  the  manner  of  its  production. 
Of  course  an  exception  must  always  be  made  of  cases  where  the 
operations  upon  the  party's  own  land  are  not  only  calculated,  but 
can  be  shown  to  have  been  intended,  to  produce  this  gradual  ac- 
quisition of  the  seashore,  however  difl&cult  such  proof  of  intention 
may  be. 

If,  then,  it  had  been  clearly  proved  or  admitted  in  this  case 
that  the  additions  to  the  seashore  in  the  parishes  of  Llanelly  and 
Pembrey  were  of  gradual  and  imperceptible  progress,  so  as  to  com- 
pel me  to  express  an  opinion  upon  the  distinction  taken  by  the 
Crown  between  accretions  produced  by  nature  and  by  artificial 


B.  0.  VOL.  XVII.]  SECT.  L  —  MINERAL  PROPERTY.  575 

Ho.  IS.  —  Att.'Gen.  y.  duunben ;  Att.-Oen.  y.  Beei,  4  De  G.  &  J.  69,  70. 

causes,  I  should  have  been  prepared  to  repudiate  the  distinction, 
and  to  refuse  any  further  inquiry  to  ascertain  the  original  medium 
line  of  high  water,  as  I  consider  this  proceeding  as  closely  analo- 
gous to  a  bill  to  ascertain  boundaries  in  wliich  it  is  necessary  for 
the  plaintiff  to  establish,  by  the  admission  of  the  defendant  or  by 
evidence,  a  clear  legal  title  to  some  land  in  the  possession  of  the 
defendant.  Godfrey  v.  Litidy  2  Kuss,  &  Myl.  633.  But  in  this 
case,  although  the  allegation  in  the  information,  ''  that  the  alluvial 
land  has  not  been  added  to  the  adjoining  main  land  by  the  gradual 
and  imperceptible  projection  of  soil  and  silt  upon  the  seashore 
arising  from  the  operation  of  natural  causes,"  is  ambiguous,  and 
may  either  amount  to  a  denial  of  the  gradual  and  imperceptible 
nature  of  the  accretions  or  of  the  cause  by  which  they  were  pro- 
duced, yet  the  witnesses  for  the  Grown  say  that  the  alluvial  land 
has  not  been  added  to  the  main  land  gradually  and  imperceptibly, 
but  rapidly. 

Now  if  by  the  word  "  rapidly  "  the  witnesses  mean  "  per- 
ceptibly," then  the  Crown,  and  not  the  defendant,  *  would  [*  70] 
be  entitled  to  these  accretions.  But  if  the  witnesses  merely 
mean,  that  at  the  expiration  of  some  period  of  time  they  could 
perceive  the  changes  which  had  taken  place,  although  they  could 
not  discern  them  in  their  progress,  then,  I  think,  another  important 
question  may  arise,  and  may  call  for  determination,  as  to  whether 
circumstances  may  not  exist  in  which,  though  the  changes  were 
gradual,  yet  the  original  limits  of  the  Crown's  right,  and  of  that 
of  the  owner  of  the  adjoining  land,  are  now  capable  of  being  dis- 
tinctly ascertained. 

If  there  is  no  clear  line  of  demarcation  between  the  main  land 
and  the  seashore  by  the  gradual  encroachment  or  recession  of  the 
tide,  all  trace  of  the  distinction  between  them  will  be  completely 
obliterated,  and  there  will  be  full  scope  for  the  rule  of  alluvion  to 
operate.  But  suppose  that  the  separation  between  the  main  land 
and  the  seashore  is  distinct ;  as  suppose  the  landowner  puts  up  a 
wall  to  prevent  the  encroachment  of  the  sea  upon  him,  and  the 
eflfect  of  the  wall  is  to  produce  a  gradual  and  insensible  accretion, 
which  cannot  be  perceived  from  day  to  day,  but  at  the  end  of  some 
long  period  is  distinctly  to  be  seen,  ought  this  to  become  the 
property  of  the  landowner? 

Lord  Tenterden,  in  Bex  v.  Lord  Yarhorough,  3  B.  &  C.  91,  106 
(27  E.  R.  292),  seems  to  think  that  it  ought,  for  he  says :  "  An 


576  MINES  AND  MINERALS. 


Ho.  18.  —  Att-Oen.  y.  Chambers ;  Att.-Oe&.  ▼.  Beof,  4  De  O.  &  J.  70-78. 

accretion  extremely  minute,  so  minute  as  to  be  imperceptible  even 
by  known  antecedent  marks  or  limits  at  the  end  of  four  or  five 
years,  may  become,  by  gradual  increase,  perceptible  by  such  marks 
or  limits  at  the  end  of  a  century,  or  even  of  forty  or  fifty  years. 
For  it  is  to  be  remembered,  that  if  the  limit  on  one  side  be  land 
or  something  growing  or  placed  thereon,  as  a  tree,  a  house,  or  a 

bank,  the  limit  on  the  other  side  will  be  the  sea,  which 
[*  71]  rises  to  a  height  varying  *  almost  at  every  tide,  and  of 

which  the  variations  do  not  depend  merely  upon  the  ordi- 
nary course  of  nature  at  fixed  and  ascertained  periods,  but  in  part 
also  upon  the  strength  and  direction  of  the  winds,  which  are  differ- 
ent almost  from  day  to  day.  And  (he  adds)  considering  the  word 
'  imperceptible '  in  this  issue  as  connected  with  the  words  *  slow 
and  gradual,'  we  think  it  must  be  understood  as  expressive  only 
of  the  manner  of  the  accretion,  as  the  other  words  undoubtedly 
are,  and  as  meaning  imperceptible  in  its  progress,  not  imperceptible 
after  a  long  lapse  of  time." 

This,  however,  is  not  in  accordance  with  the  great  authority 
upon  this  subject,  Lord  Hale  (Hargrave's  Law  Tracts,  p.  28).  He 
says,  "  This  jus  alluvionis  is  de  jure  communi,  by  the  law  of 
England,  the  King's,  viz.,  if  by  any  marks  or  measures  it  can  be 
known  what  is  so  gained ;  for  if  the  gain  be  so  insensible  and 
indiscernible  by  any  limits  or  marks  that  it  cannot  be  known, 
idem  est  non  esse  et  non  apparere."  Lord  Hale  here  calmly  limits 
the  law  of  gradual  accretions  to  the  cases  where  the  boundaries  of 
the  seashore  and  adjoining  land  are  so  undistinguishable  that  it  is 
impossible  to  discover  the  slow  and  gradual  changes  which  are 
fiom  time  to  time  accruing,  and  when  at  the  end  of  a  long  period 
it  is  evident  that  there  has  been  a  considerable  gain  from  the 
shore,  yet  the  exact  amount  of  it,  from  the  want  of  some  mark  of 
the  original  boundary  line,  cannot  be  determined.  But  where  the 
limits  are  clear  and  defined,  and  the  exact  space  between  these 
limits  and  the  new  high- water  line  can  be  clearly  shown,  although 
from  day  to  day  or  even  from  week  to  week  the  progress  of  the 
accretion  is  not  discernible,  why  should  a  rule  be  applied  which  is 
grounded  upon  a  reason  which  has  no  existence  in  the  particular 

case. 
[*  72]      *  In  the  present  state  of  the  evidence  it  is  impossible  for 

me  to  direct  an  inquiry  to  ascertain  and  lay  down  the  former 
line  of  medium  high  tide,  because  it  could  lead  to  no  practical  result 


R.  C.  VOL.  XVn.]  SECT.  L  —  MINERAL  PROPERTY.  577 

Ho.  18.  —  Att.-Oen.  ▼.  Ghamben ;  Att.-G«n.  ▼.  Beei,  4  De  G.  &  J.  72,  78. 

I  want  information  upon  a  variety  of  points  which  is  not  sup- 
plied by  the  evidence.  With  respect  to  the  slag  embankment,  to 
which  the  accretions  are  principally  attributed,  I  cannot  discover 
satisfactory  proof  whether  it  is  formed  on  the  present  seashore, 
or  upon  that  which  was  formerly  seashore,  or  upon  the  land 
occupied  by  Sims  &  Co. ;  whether  it  extends  before  the  defend- 
ant's lands  or  merely  produces  effects  upon  the  line  of  high  water 
opposite  to  them,  there  being  some  discrepancy  in  the  evidence  on 
this  last  point;  whether  there  were  originally  any  bounds  or 
marks  by  which  the  seashore  could  be  clearly  distinguished  from 
the  adjoining  lands ;  and  whether  the  accretions  which  have 
taken  place  were  imperceptible  in  their  progress  or  could  be 
perceived  from  time  to  time  as  they  were  going  on,  upon  all  of 
which  subjects  the  evidence  is,  at  present,  extremely  defective 
and  unsatisfactory. 

I  think  it  will  be  absolutely  necessary  for  me  to  direct  issues 
to  be  tried  for  the  purpose  of  ascertaining  the  following  facts  : — 

1st.  Whether  by  the  direct  or  indirect  operation  of  the  acts  of 
the  defendant,  or  of  any  other  person  or  persons,  and  by  what 
acts,  the  natural  line  of  high  water  before  the  defendant's  lands, 
in  the  parishes  of  Llanelly  and  Pembrey,  has  been  varied,  and 
if  so,  to  what  extent? 

2nd.  Whether  the  variation,  if  any,  in  the  natural  line  of  high 
water  has  been  slow,  gradual,  and  imperceptible,  or  otherwise, 

*  3rd.   Whether  there  are  or  were  any  marks  or  bounds  [*  73] 
by  which  the  natural  line  of  high  water  can  now  be  ascer- 
tained and  laid  down. 

With  respect  to  Mr.  Eees  there  must  be  similar  issues.  But, 
in  addition  to  these,  there  must  be  one  with  reference  to  the  work- 
ings of  the  Pool  Colliery  Company.  The  information  against  him 
charges  that  the  Pool  Colliery  Company  have  sunk  a  pit  and 
worked  a  mine  under  the  seashore,  making  certain  payments  to 
the  defendant  in  respect  of  it.  The  evidence  of  the  working,  how- 
ever, is,  that  the  Pool  Colliery  Company  have  worked  the  mine  for 
about  one  hundred  and  twenty  yards  to  the  south  beyond  the 
high-water  mark  of  the  spring  tides,  but  that  the  workings  have 
not  extended  beyond  the  high-water  mark  at  neap  tides.  Now 
the  rights  of  the  Crown  neither  extend  to  the  spring  tides  nor  are 
confined  to  the  neap  tides,  but  their  limits  are  the  ordinary  or 
medium  tides.  Although  there  is  proof,  therefore,  of  the  Pool 
VOL.  XVII.  —  37 


578  MINES  AND  MINERALS. 


Vo.  18.  — Att-0«iL  ▼.  duonben;  Att.-GeiL  ▼.  Beet.  — Hotes. 

Colliery  Company  working  below  the  spring  tides,  there  is  none 
at  all  of  their  having  worked  below  ordinary  tides. 

There  ought  to  be  an  issue  to  inquire  whether  the  Pool  Colliery 
Company  have  worked  the  mine  below  the  present  or  former  line 
of  high  water  at  ordinary  tides. 

Until  these  facts  are  determined  it  is  not  in  my  power  to  dis- 
pose of  the  important  questions  which  these  informations  involve ; 
although  I  have  thought  it  right  not  to  withhold  my  opinion 
upon  some  of  the  questions  which  were  raised  in  the  course  of 
the  argument. 

ENGLISH  NOTES. 

The  prima  faeie  presumption  was  held  to  be  rebutted  in  Attorney' 
General  v.  Hanmer  (1858),  27  L.  J.  Ch.  837,  4  Jur.  (N.  S.)  751,  where 
a  grant  was  made  by  letters  patent  of  the  Crown  as  lord  of  the  manor  of 
E.,  of  ''all  those  coal  mines  found,  or  to  be  found,  within  the  commons^ 
waste  grounds,  or  marshes  within  the  said  lordship  of  E.,  &c.,"  with  a 
proviso  that  the  grant  should  be  construed  strictly  against  the  Crown, 
and  most  strictly  and  beneficially  for  the  grantees.  This  grant  was 
held  by  Watson,  B.,  and  Stuart,  V.-C,  to  pass  the  coal  lying  under 
the  estuary  of  the  River  Dee,  between  high  and  low  water  marks,  and 
forming  part  of  the  manor  of  E. 

It  is  the  duty  of  the  Crown,  whether  the  foreshore  has  been  granted 
to  a  subject  or  not,  to  protect  the  realm  against  inundations  by  the  sea, 
and  to  maintain  all  natural  barriers  against  such  inundation.  And 
where  a  subject  removes  or  threatens  to  remove  the  shingle  to  such  an 
extent  as  to  expose  the  land  within  to  inroads  of  the  sea,  an  action  lies 
by  the  Attorney-General  at  the  relation  of  the  owner  of  the  land  within 
to  restrain  the  removal  of  the  shingle,  although  the  subject  removing 
or  threatening  to  remove  the  shingle  may  have  obtained  a  grant  of  the 
foreshore.  Attorney- General  v.  Tomline  (C.  A.  1880),  15  Ch.  D.  160, 
49  L.  J.  Ch.  377. 

The  question  what  is  the  **bed  of  the  river"  under  the  Thames 
Conservancy  Acts  has  been  considered  in  several  cases,  and  ultimately 
decided  by  the  Court  of  Appeal,  in  Thames  Conservators  v.  Sineed 
(C.  A.),  1897,  2  Q.  B.  334,  66  L.  J.  Q.  B.  716,  upon  a  principle  similar 
to  that  applied  to  the  Crown's  property  in  the  foreshore;  so  that  the 
"bed  of  the  river  "  is  held  to  mean  the  soil  between  the  ordinary  high- 
water  mark  on  the  one  side  and  the  ordinary  high- water  mark  on  the 
other  side.  Eor  this  construction  A.  L.  Smith,  L.  J.,  cited  the  Amer- 
ican case  of  State  of  Alabama  v.  Sta^e  of  Georgia  (1859),  64  XJ.  S. 
615. 


B.  C.  VOL.  XVIL]      sect.  IL  —  POSSESSION  AND  POWERS.  579 

Ho.  14.  •—  Xhe  Xarqnis  of  SaliBlrary  ▼.  Gladftone,  84 1.  J.  C.  P.  8S8.  — Bole. 


AMERICAN  NOTES. 

This  case  is  cited  generally  in  Washbum  on  Easements,  p.  324,  and  in 
Groud  on  Waters,  but  its  general  applicability  will  be  considered  hereafter 
(see  Sea,  kc,,post). 


Section  II.  —  Possession  and  Powers. 

No.  14  — THE  MAEQUIS  OF  SALISBUEY  v.  GLADSTONE. 

(H.  L.  1861.) 

RULE. 

A  CUSTOM  for  the  copyholders  of  a  manor  to  break  the 
surface  of  their  tenements  and  dig  and  get  coal  or  clay- 
without  stint  out  of  the  tenements  may  be  good  in  law. 

The  Marquis  of  Salisbury  v.  Oladstone. 

34  L.  J.  C.  P.  222-224  (s.  c.  9  H.  L.  Cas.  692 ;  8  Jur.  (N.  S.)  625 ;  4  L.  T.  849; 

9  W.  R.  930). 

Copyhold,  —  Custom.  [222} 

A  custom  in  a  manor  that  copyholders  of  inheritance  may  break  the  surface 
and  dig  and  get  clay,  without  stint,  out  of  their  copyhold  tenements,  for  the 
purpose  of  making  bricks,  to  be  sold  off  the  manor,  is  good  in  law  {dubitante 
Lord  Wensleydale). 

Error  was  brought  in  this  case  by  the  plaintiff  on  a  bill  of 
exceptions  to  the  ruling  of  Byles,  J.,  before  whom  the  case  was 
tried,  and  under  whose  direction  a  verdict  was  found  for  the 
defendant. 

The  action  was  ejectment  for  a  forfeiture  of  certain  lands  in  the 
manor  of  West  Derby,  in  the  county  of  Lancaster.  The  defendant 
was  a  copyholder  of  inheritance  of  the  manor  of  West  Derby,  of 
which  the  plaintiff  was  lord. 

The  defendant  had  broken  the  surface  and  dug  clay  on  his  own 
tenement,  for  the  purpose  of  making  bricks  for  sale,  which  he 
made,  and  afterwards  sold,  and  contended  that  he  was  justified  in 
so  doing  by  an  immemorial  usage  in  the  manor,  for  copyholders 
of  inheritance  without  license  of  the  lord,  to  dig  and  get  clay  in 


680  MINES  AND  MINERALS. 


Ko.  14.  —  The  Karqnif  of  Salubnxy  ▼.  Gladitoae,  94  L.  J.  C.  P.  282,  288. 


their  own  tenements  for  the  purpose  of  making  bricks  for  sale. 
Evidence  was  given  of  this  custom. 

The  learned  Judge  held  that  the  custom,  if  proved,  was  good 
in  law,  and  so  directed  the  jury.  Exceptions  were  tendered  to 
this  direction.  The  jury  thought  that  the  evidence  did  prove  the 
custom  in  fact,  and  so,  under  this  direction,  the  verdict  was  found 
for  the  defendant. 

On  error  to  the  Exchequer  Chamber  the  judgment  was  aflBrmed. 
This  proceeding  in  error  was  then  taken. 

Sir  H.  Cairns  and  Mr.  Manisty  (Mr.  T.  Jones  was  with  them), 
for  the  appellant.  —  The  custom  here  set  up  is  a  custom  to  commit 
waste,  and  waste  of  the  very  soil  of  the  manor.  Such  a  custom 
cannot  be  supported.  The  Tanistry  Case,  Sir  J.  Dav.  Eep.  32 ; 
Legal  Maxims,  by  Broom,  824  to  829  ;  Broadbent  v..  WUks,  Willes, 
360 ;  Hilton  v.  Lord  Granville,  5  Q.  B.  701 ;  Tyson  v.  Smith,  9  Ad.  & 
E.  406 ;  Coke's  Copyholder,  s.  33 ;  Blackstone's  Commentaries, 
Book  ii,  c.  6 ;  Bracton,  26  a ;  Hockey  v.  Ev^gins,  Cro.  Car.  220 ; 
Badger  v.  Ford,  3  B.  &  Aid.  153  (22  R.  R  331)  ;  Wilson  v.  WUUs, 
7  East,  121  (8  R  R  604) ;  Clayton  v.  Corly,  5  Q.  B.  415 ;  Attorney^ 
General  v.  Matthias,  4  Kay  &  J.  579 ;  Ely  v.  Warren,  2  Atk.  189 
Bishop  of  Winchester  v.  Knight,  1  R  Wms.  406  (p.  533,  ante) 
Gilbert's  Tenures,  p.  328;  Scriven  on  Copyholds,  4th  edit.  427 
Bourne  v.  Taylor,  10  East,  189  (p.  535,  ante)\  Rowe  v.  Brenton,  8 
B.  &  C.  737  (32  R  R  524) ;  Bateson  v.  Green,  5  T.  R  411 ;  Arleit 
V.  Ellis,  7  B.  &  C.  346  (31  R  R  214) ;  Paddockw.  ForresUr,  3  Scott 
N.  R  715. 

Mr.  Rolt,  and  Mr.  Edward  James  (Mr.  Mellish  and  Mr.  Baylis 
were  with  them),  for  the  respondent.  —  In  copyholds  of  inheri- 
tance such  a  custom  as  this  is  good ;  it  does  not  destroy  the  lord's 
estate.  Rutland  v.  Gie,  1  Sid.  152 ;  Stephenson  v.  Hill,  3  Burr. 
1273  ;  Glasscock's  Case,  4  Leo.  236  ;  Fawcett  v.  Lowther,  2  Ves.  300  ; 
Cage  v.  Dod,  Styles,  233  ;  Denn  v.  Johnson,  10  East,  266 ;  Curtis  v. 
Daniel,  10  East,  273  (10  R  R  291). 

Sir  H.  Cairns,  in  reply. 

Lord  Cranworth  moved  the  judgment  of  the  House.  — 
[*  223]  It  was  argued,  on  behalf  of  *  the  plaintiflf  that  no  such 
custom  as  that  now  set  up  could  exist ;  for  that  a  custom 
to  be  valid  must  be  reasonable,  and  that  the  custom  here  was  not 
reasonable,  since  the  exercise  of  it  tended  to  the  annihilation  of 
the  lands  themselves.    It  was  not  easy  to  define  the  meaning  of 


R.  C.  VOL.  XVII.]         SECT.  n.  — POSSESSION  AND  POWERS.  581 

Ko.  14.  — Thfi  Xarqnifl  of  Baliflbary  v.  Gladstone,  94  L.  J.  C.  P.  228. 

the  word  "  reasonable,"  when  applied  to  a  custom  relating  to  a  lord 
and  his  copyholders.  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  its  occupants  as  his  tenants  at 
will.  Whatever  restrictions  he  imposed,  or  whatever  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  between  them,  and  it  was  shown  that  what  was 
so  agreed  on  had  always  been  acted  upon  since,  it  was  difl&cult  to 
see  how  it  could  be  declared  void  on  the  ground  of  its  being 
unreasonable.  Looking  to  the  present  case,  it  was  impossible  to 
say  that  such  a  custom  as  that  here  alleged  might  not  have 
resulted  from  an  agreement  between  the  lord  and  the  tenants 
before  the  time  of  legal  memory.  The  only  persons  affected  by  it 
were  the  lord  and  the  particular  tenant.  In  Broadbent  v.  Wilka  it 
affected  other  copyholders ;  and  so  again,  in  Wilson  v.  Wiiles,  where 
the  custom  claimed  was  to  take  an  unlimited  quantity  of  turf  from 
the  common  for  the  improvement  of  the  tenements  of  those  who 
took  it,  without  reference  to  the  other  copyholders  whose  rights  in 
the  common  might  be  thereby  wholly  destroyed.  This  was  not  a 
custom  like  that  claimed  in  the  case  of  Hilton  v.  Lord  Granville, 
by  which  the  houses  of  the  tenants  might  all  be  imdermined  and 
destroyed  without  notice  of  what  was  to  be  done,  or  compensation 
for  doing  it.  The  custom  here  affected  only  the  lord  and  the 
particular  tenant,  and  there  was  no  reason  for  saying  that  it  might 
not  have  been  the  result  of  arrangement  between  these  two  parties. 
Such  a  custom  relating  to  the  sale  of  copper  ore  had  been  held 
good  in  The  Bishop  of  Winchester  v.  Knight,  where  the  tenant  was 
not  strictly  a  copyholder,  but  was  a  customary  tenant,  Lord 
CowPER  directing  an  issue  to  try  whether  there  was  such  a  custom 
in  fact,  which  he  could  not  have  done  if  he  had  thought  that  a 
custom  of  that  kind  would  be  void  as  unreasonable.  That  case 
could  not  be  distinguished  from  the  present,  for  clay  was  not  the 
only  part  of  the  soil  adapted  for  profitable  culture,  even  if  a 
custom  would  be  bad  which  would  lead  to  making  the  land  useless 
for  agricultural  purposes.  This  was  only  a  custom  insisted  on 
for  this  particular  manor,  and  so  limited.  It  might  be  good  and 
reasonable ;  for  it  might  have  been  thought  that  the  clay  here  was 
present  in  such  excessive  quantity  that  its  removal  would  tend  to 
benefit  and  not  to  impoverish  the  soil.     The  alleged  custom  would 


582  MINES  AND  MINSBALS. 


Ho.  14.  —  Thfi  Karqiui  of  Salubnry  ▼.  eiadstone,  84  L.  1.  C.  P.  828,  894. 

not  warrant  the  removal  of  soil  consisting  of  mixed  portions  of 
clay,  chalk,  gravel,  and  vegetable  mould ;  and  it  might  be  that  the 
lord  considered  that  the  removed  of  pure  clay  would  increase  the 
value  of  the  soil  which  would  remain.  The  direction  of  the  learned 
Judge  at  the  trial  was  therefore  right,  and  the  exceptions  were 
properly  disallowed ;  and  the  judgment  must  be  for  the  defendant 
in  error.  — His  Lordship  added,  that  Xord  Brougham,  who  had 
heard  the  argument,  concurred  in  the  judgment. 

Lord  Wensleydale  confessed  to  not  having  a  very  decided 
opinion  on  the  case,  but  he  should  not  do  more  than  express  his 
doubts,  and  should  not  oppose  the  motion  of  his  noble  and  learned 
friend.  There  was  no  doubt  whatever  but  that  the  lord,  being 
the  original  owner  of  the  soil,  could  have  given  by  grant  such  a 
power  or  even  a  larger  one  to  his  tenants ;  but  when  there  was 
no  express  grant  the  rule  of  law  applied  that  a  custom  to  be  good 
must  not  be  unreasonable,  otherwise  the  use  might  be  referred  to 
the  ignorance  or  carelessness  of  those  whose  property  it  affected, 
and  not  to  their  grant.  For  that  reason  the  custom  set  up  in 
Wilson  V.  Willes  was  held  bad.  And  so  in  Arlett  v.  Ullis,  it  was 
held  that  it  could  not  be  a  good  custom  for  the  lord  to  inclose 
without  leaving  a  sufficiency  of  common.  Yet  in  both  these  cases 
it  might  have  been  argued  that  the  lord  might  originally  have 
made  a  grant  to  that  effect.  So  he  might,  no  doubt,  make  a  grant 
to  take  away  the  clay,  however  deep  and  extensive  the  stratum 
of  that  clay  might  be,  and  however  much  injury  it  might  cause 
to  the  tenement,  even  though  there  was  no  countervailing  benefit 
But  there  the  grant  must  be  shown.  Here  it  was  claimed 
[*  224]  as  a  custom.  Such  claim  would  be  void  if  *  it  was  un- 
reasonable. Then  was  it  an  unreasonable  thing  for  a  copy- 
hold tenant  to  have  a  right  to  destroy  the  natural  surface  of  the 
soil,  and  remove  it  altogether,  leaving  only  a  substratum,  sand  or 
stone,  or  whatever  it  might  be,  which  might  be  incapable  of 
cultivation,  exposed  below  ?  This  custom  differed  much  from  the 
right  to  cut  trees,  for  that  might  be  highly  beneficial  to  agricul- 
ture, and  in  particular  soils  they  might  be  replaced  by  others : 
it  also  differed  from  the  right  to  get  minerals  which  might  be 
done  without  injury  to  the  surface.  Under  these  circumstances 
he  still  entertained  much  doubt  upon  the  question,  but  as  all  his 
noble  and  learned  friends  differed  from  him,  and  had  formed  a 
very  decided  opinion  upon  the  validity  of  the  custom  proved,  he 


R.  C.  VOL.  XVII.]      SECT.  H.  — POSSESSION  AND  POWERS.  583 

Ho.  14.  — TI10  Karqnif  of  Salisbury  ▼.  Gladstone,  84  L.  J.  C.  P.  8M. 

did  not  mean  to  ofifer  any  advice  to  their  Lordships,  that  the 
judgment  of  the  Exchequer  Chamber  should  be  reversed. 

Lord  Chelmsford  said  that  the  existence  of  immemorial  usage 
had  been  in  this  case  fully  established  by  the  evidence.  It  was 
insisted,  however,  for  the  appellant,  that  the  custom  must  be  bad, 
because  it  could  not  be  presumed  that  there  was  a  convention 
between  the  lord  and  the  tenant  to  permit  the  latter  to  destroy 
the  copyhold,  by  taking  away  the  soil  itself.  It  was  admitted 
that  there  might  be  a  valid  custom  for  a  copyholder  of  inherit- 
ance to  work  mines,  to  dig  and  take  clay,  or  to  cut  down  and  carry 
away  trees ;  but  it  was  said  that  it  was  the  extent  of  this  custom 
which  made  it  unreasonable,  and  a  distinction  was  drawn  between 
trees  which  were  perishable  and  renewable,  and  the  clay  which 
was  the  soil  itself.  The  trees,  however,  were  not  properly  de- 
cribed  as  "renewable,"  though  they  might  be  replaced  by  others. 
It  was  difficult  to  conceive  in  what  way  a  custom  to  take  the 
whole  of  a  particular  soil  from  a  tenement  could  be  called  a  de* 
struction  of  the  tenement  itself.  The  tenement  would  remain 
though  this  particular  portion  of  the  soil  was  removed.  There 
seemed  nothing  unreasonable  in  supposing  that  the  lord  might 
originally  have  licensed  his  tenants  to  use  their  copyhold  tene- 
ments in  the  way  in  which  alone,  perhaps,  any  great  benefit  could 
be  derived  from  them.  There  was  little,  if  any,  distinction  be- 
tween a  custom  to  work  mines  and  a  custom  to  dig  clay  for  the 
profit  of  the  tenant.  In  The  Bishop  of  Winchester  v.  Knight,  the 
freehold  was  in  the  lord,  and  the  only  difierence  between  that  and 
a  copyhold  case  was  that  the  tenants  did  not  hold  ad  voluntatem 
domini.  Lord  Cowper  recognised  the  legal  validity  of  such  a 
custom,  or  he  would  not  have  sent  a  case  to  try  whether  in  fact 
it  existed.  There  was  little  resemblance  between  this  case  and 
those  where  the  clause  was  of  a  profit  db  prendre  in  alieno  solo. 
In  a  copyhold  tenement,  though  the  soil  was  in  the  lord,  he  could 
not,  any  more  than  the  tenant,  work  mines  or  cut  down  trees 
without  a  custom  authorising  him  to  do  so.  The  rights  of  the 
lord  were  those  which  had  been  reserved,  those  of  the  tenant  those 
which  had  been  granted.  But  in  one  as  in  the  other  the  rights 
of  one  party  must  not  be  inconsistent  with  those  which  existed 
in  the  other.  That  was  the  principle  which  governed  Bateson  v. 
Chreen  and  Broadbent  v.  Wilks,  in  the  former  in  favour  of  the  lord, 
in  the  latter  adverse  to  him,  because  of  its  utter  inconsistency 


584  MINES  AND  MINEBALS. 


Ko.  14.  — Thfi  Karqnif  of  Salisbury  ▼.  GladitOM,  94  L.  1.  C.  P.  8M.  — HotM. 

with  the  grant  to  the  tenant.  In  Wilson  v,  WUlea  a  custom  for 
all  the  tenants  of  a  manor,  having  gardens,  to  take  pasturable 
turf  at  all  times  and  in  unlimited  quantity,  from  a  waste  within 
the  manor,  for  making  and  repairing  grass  plots  in  their  gardens, 
and  for  making  and  repairing  the  banks  and  mounds  fencing  their 
customary  estates,  was  held  bad  as  being  indefinite,  uncertain,  and 
destructive  of  the  common.  These  cases  indicated  the  principle 
on  which  the  unreasonableness  of  any  custom  might  be  ascer- 
tained. There  could  be  no  doubt  that  the  lord  on  the  original 
grant  of  the  copyhold  tenements  in  question  might  have  reserved 
to  himself  the  right  to  dig  and  carry  away  the  brick-earth  found 
upon  them,  and  if  a  custom  of  that  kind  existed  upon  the  manor 
it  would  be  valid.  But  if  the  lord  might  have  reserved  such  a 
right  to  himself,  why  might  he  not  confer  it  on  the  tenants  ?  And 
if  it  was  not  unreasonable  to  suppose  that  such  a  right  might  have 
been  originally  conferred,  then  the  custom,  which  had  been  proved 
by  the  immemorial  exercise  of  the  right,  was  good  in  law,  and  the 
judgment  in  favour  of  the  defendant  in  error  ought  to  be  aflBrmed. 

Judgment  for  the  defendant  in  error. 


ENGLISH  NOTES. 

In  the  case  of  Lingwood  v.  Gyde  (1866),  L.  E.  2  C.  P.  72,  36  L.  J. 
C.  P.  10,  16  L.  T.  229,  15  W.  E.  311,  —  a  case  stated  by  an  assistant 
copyhold  commissioner  in  certain  enfrauchisement  proceedings,  —  the 
following  questions  (inter  alia)  had  been  referred  to  the  Commissioners. 
1.  Whether  in  that  manor  the  lord  was  entitled  to  claim  any  considera- 
tion in  respect  of  timber ;  3.  Whether  in  that  manor  the  lord  was 
entitled  to  enter  for  a  forfeiture  if  the  tenant  dug  clay  or  brick  earth  ; 
and  4.  Whether  in  that  manor  the  lord  was  entitled  to  enter  for  a  for- 
feiture for  any  other  kind  of  waste  committed  by  the  tenants.  All  these 
questions  were  decided  by  the  Assistant  Commissioner  in  the  negative. 
The  judgment  of  the  Court  (Erle,  Ch.  J.,  Willes,  J.,  Byles,  J.,  and 
Keating,  J.),  delivered  by  Willes,  J.,  was  (so  far  as  relates  to  these 
questions)  as  follows:  <*We  agree  with  the  Assistant  Commissioner 
as  to  all  the  questions  (1,  3,  and  4)  respecting  waste.  The  evidence 
was  abundant  to  prove  a  customary  right  to  waste  both  commissive  and 
permissive;  and  such  right  was  established  to  be  good  in  law  by  the 
House  of  Lords  in  the  case  of  Salisbury  v.  Gladstone." 

The  freehold  of  a  customary  tenement  is  in  the  lord,  and  the  tenant 
has  not,  in  the  absence  of  a  custom  to  that  effect,  any  right  to  work  the 


B.  C.  VOL.  XVn.]      SECT.  H. — POSSESSION  AND  POWERS.  585 

Ho.  15.  —  SMinen  ▼.  Vawdrey,  16  Vefey,  890.  —  Bale. 

minerals.     Duke  of  Portland  v.  HUl  (1866),  L.  E.  2  Eq.  765,  35  L.  J. 
Ch.  439,  12  Jur.  (N.  S.)  286,  15  W.  E.  38. 

The  principal  case  has  also  been  cited  in  several  judgments  as  an 
illustration  of  the  high  nature  of  the  rights  which  may  be  claimed  by 
custom.  See  per  Lord  Hatherley,  L.  C,  in  Warwick  v.  Queen's  Col- 
lege,  Oxford  (1871),  L.  E.  6  Ch.  716,  722,  40  L.  J.  Ch.  780,  2b  L.  T. 
264, 19  W.  E.  1098;  per  Hall,  V.  C,  in  Hall  v.  Byron  (1876),  4  Ch. 
D.  667,  678,  46  L.  J.  Ch.  297,  36  L.  T.  367,  2b  W.  E.  317.  And  it  is 
cited  in  support  of  the  rights  claimed  by  customary  tenants  in  the  Isle 
of  Man,  in  the  judgment  of  the  Judicial  Committee  in  Attomey-GeneraZ 
{Isle  of  Man)  v.  Mxjlchreest  (1879),  4  App.  Cas.  294,  305,  48  L.  J. 
P.  C.  36,  40  L.  T.  764. 

AMERICAN  NOTES. 

This  case  is  cited  in  Washburn  on  Easements,  p.  146,  as  exceptional,  and 
80  in  Lawson  on  Customs,  p.  81,  65. 


No.  15.  — SEAMAN  v.  VAWDEEY. 
(1810.) 

No.  16.  — THEW  V.  WINGATE. 
(1862.) 

RULE. 

No  presumption  of  a  grant  of  a  right  to  mines  reserved 
by  an  old  conveyance,  or  of  a  release  of  a  right  of  entry 
for  the  purpose  of  working  them,  arises  from  the  mere 
non-exercise  of  the  rights  reserved. 

But  the  actual  possession  of  a  mine  by  the  owner  of  the 
surface  for  the  period  of  limitation  will  operate  as  a  bar 
under  the  statute  (3  &  4  Will.  IV.,  c.  27)  to  the  claim  of 
another. 

Seaman  v.  Vawdrey. 

16  Vesey,  390-393  (10  R.  R.  207). 

Mines,  —  Reservation.  —  Non-user  no  Ground  for  PresumptUm  of  Lost  Grant. 

Reservation  of  salt  works,  mines,  &c.,  in  1704,  with  a  right  of  entry,  [390] 
though  no  instance  of  any  ckim,  and  the  title  had  heen  transferred  in 


586  MINES  AND  MINEBALS. 


Ho.  15.  — Beamaii  ▼.  Vawdzey,  16  Vefey,  890,  891. 


1761,  without  such  reservation,  upon  the  usual  covenants,  held  an  objection^ 
giving  a  right  to  compensation;  the  purchaser  not  insisting  upon  it  further. 
The  inference  of  abandonment  of  a  right  from  non-user  not  applicable  to  the  case 
of  mines. 

The  bill  prayed  the  specific  performance  of  a  contract  by 
the  defendant  to  purchase  estates  in  the  County  of  Chester, 
An  objection  was  taken  to  the  title  upon  the  ground,  that 
by  indentures  of  lease  and  release,  dated  the  26th  and  27th 
of  September,  1704,  Cicely  Croxton  conveyed  to  Peter  Yate,  his 
heirs  and  assigns,  the  manor  and  estate  of  Ravenscroft,  subject  to 
the  following  reservation :  except  and  always  reserved  to  the  said 
Cicely  Croxton  and  her  heirs  the  Wych  houses,  salt  works,  and 
brine  pits,  in  Ravenscroft,  and  a  piece  of  land,  adjoining  thereto, 
parcel  of  the  meadow,  wherein  the  same  salt  works  stood  (describ- 
ing it);  and  also  all  springs,  veins,  and  mines,  of  brine,  salt,  or 
salt  rock  in  another  small  parcel  of  the  said  meadow ;  with  full 
liberty,  without  paying  anything,  for  Cicely  Croxton  and  her  heirs, 
&c.,  without  the  let,  &c.,  of  Yate,  his  heirs  or  assigns,  to  sink  and 
make  any  new  brine  pits,  salt  pits,  &c. ;  and  to  have -free  ingress, 
&c.,  to  take,  and  carry  away,  and  do  all  things  necessary. 

By  the  conveyance  of  1761  to  John  Seaman,  under  whose  devise 
the  plaintiff  was  entitled,  no  notice  was  taken  of  the  reservation 
in  the  deed  of  1704. 

The  Answer  insisted,  that  under  the  said  reservation  there  was 
in  the  heirs  of  Cicely  Croxton  a  right  to  all  the  springs,  mines, 
&c.,  in  the  land  devised ;  and  a  right  of  entry,  &c.,  in  respect  of 
which  the  plaintiff  is  entitled  to  compensation.  That  question 
was  therefore  brought  on,  by  consent,  without  an  exception :  the 

defendant  not  making  it  an  objection  to  the  title. 
*  [391]  *  Mr.  Richards  and  Mr.  Roupell,  for  the  plaintiff,  relied 
on  the  case  of  Lyddall  v.  Weston,  2  Atk.  19 ;  contending, 
that  the  salt  works,  existing  upon  this  estate  in  the  year  1704, 
having  been  levelled,  and  from  that  time  no  act  by  or  under  the 
title  of  Mrs.  Croxton  appearing,  a  strong  presumption  arose,  that 
she  had  released,  or  in  some  way  abandoned,  her  right  under  the 
reservation  in  that  conveyance :  especially  as  the  title  was  taken 
in  1761  by  a  purchaser,  with  the  usual  covenants,  without  the 
exception :  showing  a  clear  conviction  at  that  time,  that  there  was 
no  right  under  that  reservation. 

Sir  Samuel  Romilly  and  Mr.  Wetherell,  for  the  defendant. 


R.  a  VOL.  xvn.]    sect,  il — possession  and  powers.  587 

Ho.  15. — Beamrnn  ▼.  Vawdrey,  16  Veiey,  391,  892. 

The  non-user  of  this  right  proves  nothing:  the  object  of  such 
a  reservation  being,  that  the  party  may  have  the  power  of  exer- 
cising the  right,  when  his  circumstances  may  enable^  him  to  meet 
the  expense  attending  such  an  undertaking.  What  time  can  bar 
such  a  private  right  ?  It  is  not  like  a  right  of  way.  The  ground 
of  presumption  in  all  cases  is,  that  the  person  seeking  to  establish 
the  right  has  done  some  act  inconsistent  with  it :  but  the  posses- 
sion in  this  instance  was  not  inconsistent  with  the  right  claimed 
as  in  the  case  of  a  right  of  way. 

The  Master  of  the  Eolls  (Sir  W.  Grant). 

The  deed  of  1704  contains  an  express  and  unequivocal  reserva- 
tion of  all  mines  and  veins  of  salt  that  might  be  contained  in  the 
estate  of  Eavenscroft  It  was  for  the  purchaser  to  consider,  how 
far  it  was  prudent  to  take  an  estate,  subject  to  such  a  lien ;  but 
in  fact  by  the  terms  of  the  agreement  Mrs.  Croxton 
became  as  much  the  *  owner  of  the  mines,  as  Mr.  Yate  [*  392] 
became  owner  of  the  soil.  The  question  is,  how  those 
who  may  now  represent  her  have  lost  this  property,  or  their  right 
to  enter  upon  the  enjoyment  of  it.  Not  by  any  actual  grant  or 
release ;  for  none  is  alleged :  but  it  is  said,  at  this  distance  of 
time  a  release  is  to  be  presumed.  I  do  not  clearly  see  any  cir- 
cumstances from  which  that  presumption  is  to  arise.  No  adverse 
possession  is  alleged.  The  owner  of  the  soil  has  had  the  enjoy- 
ment to  which  he  was  entitled  by  the  contract,  and  which  is 
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,  claiming  as  representing  Mrs. 
Croxton,  under  the  reservation  of  the  mines,  in  working  them, 
that  would  lay  a  ground,  upon  which  the  presumption  could 
stand:  but  nothing  is  alleged,  except  the  mere  absence  of  any 
evidence  of  the  exercise  of  this  reserved  right ;  for  I  do  not  see, 
how  the  circumstance,  that  in  the  conveyance  of  1761  no  notice 
is  taken  of  this  reservation,  can  weigh  against  the  persons  who 
represent  Mrs.  Croxton,  if  they  should  think  proper  to  assert  her 
right  There  are  many  cases,  where  from  non-user  of  a  right  the 
inference  of  abandonment  may  fairly  be  made  :  but  that  does  not 
apply  to  such  a  case  as  this.  It  is  not  so  generally  true,  that  the 
owner  of  mines  does  work  every  mine  which  he  has  a  right  to 
work;  and  therefore  the  relinquishment  of  the  right  cannot  be 
presumed  from  the  non-exercise  of  it.     It  is  well  known,  that 


688  MINES  AND  MINEBALS. 


Ho.  16.  —  T1I0W  ▼.  Wingate,  10  Boit  &  Smith,  714. 


mines  remain  unwrought  for  generations ;  that  they  are  frequently 
purchased,  or  reserved,  not  only  without  any  view  to  immediate 
working,  but  for  the  express  purpose  of  keeping  them  unwrought, 
until  other  mines  shall  be  exhausted;  which  may  not  be  for  a 
long  period  of  time.  It  is  impossible  therefore  to  infer,  that  this 
right  is  extinguished ;  though  there  is  no  evidence  of  the  exercise 

of  it  since  the  year  1704 
[♦  393]       *  The  case  of  Lyddall  v.  Weston^  2  Atk.  19,  instead  of 

being  an  authority  for  the  defendant,  appears  to  me  to  af- 
ford an  argument  by  implication  against  hiuL  The  grounds  upon 
which  Lord  Hardwicke's  judgment  goes,  are  two :  first,  that  upon 
examination  the  probability  was  great,  that  there  were  no  such 
mines ;  secondly,  that  the  Crown,  having  merely  reserved  the 
mines,  without  any  right  of  entry,  could  not  grant  a  licence  to 
enter  upon  another  man's  estate  for  the  purpose  of  working  them. 
That  position  is  liable  to  considerable  doubt :  as  being  inconsistent 
with  the  resolutions  of  the  Judges  in  the  Com  of  Mines  in  Plowden, 
Plowd.  310;  see  336  (p.  399,  ante).  Lord  Hardwicke  however 
thought  it  necessary  to  assume  it,  before  he  could  determine 
against  the  validity  of  the  purchaser's  objection.  Here,  first,  it 
is  not  alleged,  that  there  is  no  probability  of  mines  upon  this 
estate:  it  is  rather  admitted,  that  there  were;  secondly,  here  is 
the  reservation  of  a  right  of  entry ;  upon  the  want  of  which  Lord 
Hardwicke  laid  stress  in  that  case.  The  defendant  chooses  to 
consider  this,  not  as  an  objection  to  the  title,  but  as  a  ground  for 
compensation ;  and  I  think  he  is  entitled  to  such  compensation. 

Thew  V.  Wingate. 

10  Best  &  Smith,  714-722. 

Statute  of  Limitations.  —  Gravd  Pit  —  Mine.  — Adverse  Possession, 

[714]  An  IncloBure  Act,  31  Geo.  HI.,  c.  Izi.,  directed  the  commissioners  to 
set  out  land  for  getting  stone,  &c.,  for  repairing  the  parish  roads,  which 
should  be  vested  in  the  surveyors  of  highways  and  their  successors,  and  enacted 
that  all  the  grass  and  herbage  growing,  arising,  and  renewing  on  the  roads  and 
on  the  land  to  be  set  out  and  appointed  for  getting  stone,  &c.,  should  belong  to 
and  be  the  property  of  the  persons  to  whom  the  commissioners  should  allot 
the  same,  exclusive  of  all  other  persons  whomsoever,  or  should  be  applied  to 
some  parochial  or  other  use  or  purpose.  The  commissioners,  in  pursuance  of 
the  Act,  awarded,  set  out,  allotted,  and  appointed  to  the  surveyors  of  highways 
and  their  successors  an  allotment  No.  158,  containing  one  acre,  save  and  except 


B.  a  VOL.  XVIL]      sect.  IL — POSSESSION  AND  POWERS.  589 

Ho.  16.  —  Thew  ▼.  Wingate,  10  Beit  &  Smith,  714,  715. 

the  grass  and  herbage  thereof^  upon  trust  and  for  the  purpose  of  getting  stone,  &c., 
for  repairing  the  roads^  and  they  awarded,  set  out,  allowed,  and  assigned  to  P. 
and  his  heirs  contiguous  allotments,  No.  157  and  No.  159,  together  with  the  grass 
and  herbage  of  No.  158 ;  they  also  ordered  and  directed  that  the  grass  and  herbage 
growings  arising,  and  renewing  on  the  public  roads  and  ways  should  be  let  from 
year  to  year,  and  the  moneys  arising  thereby  be  applied  to  the  repair  of  the  high* 
ways,  &c.  The  surveyors  obtained  gravel  for  the  highways  from  No.  158  down  to 
the  year  181S,  when  they  discontinued  to  do  so,  and  purchased  gravel  from  pits 
in  the  neighbouring  parishes;  and  thenceforth  until  1858  they  never  entered  upon 
or  exercised  in  No.  158  any  right  under  the  award.  In  1813,  P.  built  a  cottage 
and  barn,  and  other  buildings,  on  part  of  No.  158,  and  enclosed  part  of  it  with 
a  fence;  he  also  cut  off  a  comer  of  it,  which  had  ever  since  formed  part  of  the 
adjoining  arable  field;  and  cleared  out  the  old  pit;  and  converted  it  into  a 
pond.     Held :  — 

1.  Per  CocKBURN,  Ch.  J.;  and  senible  per  Blackburn,  J.,  that  the  award  of 
the  commissioners  did  not  vest  in  P.  any  right  to  the  soil,  but  only  the  right  of 
taking  the  grass  upon  its  surface. 

2.  That  the  surveyors  of  highways  were  witliin  Stat.  3  &  4  Will.  IV.,  c.  27, 
by  reason  of  the  interpretation  clause,  sect.  1. 

3.  That  there  had  been  a  discontinuance  of  possession  by  the  surveyors,  and 
an  actual  possession  by  P.  for  twenty  years,  and  therefore  their  right  was  barred 
by  Stat.  3  &  4  Will.  IV.,  c.  27,  ss.  2,  8. 

4.  Per  Blackburn,  J.  K  P.  had  the  exclusive  right  to  the  surface,  the 
acts  which  he  did  were  acts  of  ownership  in  the  subsoil,  and  evidence  from  which 
it  might  be  concluded  that  he  took  possession  of  the  whole  acre. 

Special  case  stated  under  The  Common  Law  Procedure  Act,  1852 
(15  &  16  Vict.,  c.  76). 

By  a  private  Act,  31  Geo.  III.,  clxi,  intituled  "  An  Act  for  divid- 
ing and  enclosing  the  open  common  fields,  meadows,  pastures, 
and  other  commonable  lands,  and  waste  grounds  in  the  lordship 
of  Ludford,  in  the  county  of  Lincoln,  comprising  the  parishes  of 
Ludf ord  Magna  and  Ludford  Parva,"  commissioners  were  appointed, 
and  it  was  enacted  that  it  should  be  lawful  for  the  com- 
missioners, and  they  were  thereby  *  authorised  and  re-  [*715] 
quired  before  any  other  allotment  was  made  in  pursuance 
of  the  Act,  to  set  out  and  appoint  two  or  more  pieces  or  parcels  of 
land,  not  exceeding  four  acres  in  the  whole,  from  and  out  of  the 
lands  thereby  directed  to  be  enclosed  in  such  convenient  places 
within  the  respective  parishes  of  Ludford  Magna  and  Ludford 
Parva  as  they  should  think  proper,  for  getting  stone,  gravel,  or 
other  materials  for  repairing  the  roads  and  ways  within  the 
respective  parishes,  and  such  parcels  of  land  should  be  vested  in 
the  respective  surveyor  or  surveyors  of  the  highways  of  the  respeo- 


590  MINES  AND  HINE&ALS. 

Ko.  16.  — T1I0W  ▼.  Wingato,  10  Boit  &  BanOk,  715,  716. 

tive  parishes  of  Ludford  Magna  and  Ludford  Parva  for  the  time 
being  and  their  successors,  upon  trust  for  the  purposes  in  the  Act 
mentioned.  And  it  was  further  enacted,  that  after  setting  out  the 
roads  and  ways  within  the  lordship  of  Ludford,  and  making  the 
allotments  of  lands  for  the  repairs  thereof,  all  the  grass  and  herb- 
age growing,  arising,  and  renewing  on  the  roads  and  ways  within 
the  lordship,  as  also  upon  the  pieces  or  parcels  of  land  to  be  set  out 
and  appointed  for  getting  stone,  gravel,  and  other  materials  for 
repairing  thereof,  should  belong  to  and  be  the  property  of  the  per- 
son and  persons  to  whom  the  commissioners  should  allot  the  same, 
exclusive  of  all  other  persons  whomsoever,  or  should  otherwise  be 
applied  to  and  for  some  general  parochial  or  other  use  or  purpose, 
and  should  be  occupied  and  enjoyed  in  such  manner  and  form  as 
the  commissioners  should  in  and  by  their  award  order,  direct,  and 
appoint 

The  commissioners  by  their  award  dated  the  7th  February,  1795, 
awarded,  set  out,  allotted,  and  appointed,  among  others,  all  that  plot, 
piece,  or  parcel  of  land,  being  No.  158  in  the  plan  to  the  award, 
annexed,  situate,  &c.,  containing  one  acre,  bounded  by  lands  therein 
awarded  to  John  Parkinson,  No.  157,  on  or  towards  the  east,  west, 
and  south,  by  the  Six  Hills  Eoad  on  or  towards  the  north  (save 
and  except  the  grass  and  herbage  thereof,  which  was  therein 
allotted  to  John  Parkinson  and  his  heirs),  unto  the  surveyor  or  sur- 
veyors of  the  highways  of  the  lordship  of  Ludford,  and  his  and 
their  successor  and  successors,  in  the  office  of  surveyor  for  the  time 
being,  forever,  upon  trust  and  for  the  purpose  of  getting  stone, 
gravel,  or  other  materials  for  repairing  the  roads  and  ways  within 
the  lordship ;  and  they  awarded,  set  out,  allotted,  and  assigned  unto 
John  Parkinson  and  his  heirs  all  that  plot,  piece,  or  parcel  of  land 
or  ground  in  the  parish  of  Ludford  Parva,  No.  159,  containing  13  a. 
and  33  p.,  &c.,  also  all  that  other  plot,  piece,  or  parcel  of  land  or 
ground  in  the  parish  of  Ludford  Parva,  No.  157,  containing  48  a. 
2  r.  31  p.,  &c.,  together  with  the  grass  or  herbage  of  the  allotment 
No.  158,  and  declared  the  same  subject  and  liable  as  aforesaid,  to  be 
vested  in  him  pursuant  to  the  directions  in  the  Act  of  Parliament 
contained  in  lieu  of  and  in  full  bar  and  satisfaction  for  the  pieces 
or  parcels  of  land  or  ground  which  he  held  before  the  pass- 
ing of  the  Act  or  before  the  allotments  were  made,  and  which 
were  dispersed  in  the  fields,  lands,  and  grounds  by  the  Act 
[*  716]  *  directed  to  be  divided  and  enclosed,  and  also  in  full  bar 


B.  C,  VOL.  XVn.]      SECT.  IL — POSSESSION  AND  POWEKS.  591 

Vo.  16.  —  Ihtfw  ▼.  Wingato,  10  Boit  &  Smith,  716. 

of  and  satisfaction  for  all  rights  of  common  and  other  rights 
whatsoever  to  which  he  was  entitled  immediately  before  the  allot- 
ments were  made  in,  over,  or  upon  the  same  fields,  lands,  and 
ground.  The  commissioners  also  ordered  and  directed  that  all  the 
grass  and  herbage  growing,  arising,  and  renewing  on  the  public 
roads  and  ways  only  within  the  lordship  of  Ludford  should  from 
time  to  time  be  publicly  let  to  the  best  bidder  or  bidders  by  the 
surveyor  or  surveyors  of  the  highways  within  the  lordship  for  the 
time  being  from  year  to  year  only,  and  the  moneys  which  should 
from  time  to  time  arise  thereby  should  be  applied  in  the  first 
place  in  the  necessary  repairs  of  the  roads  and  highways,  bridges, 
and  tunnels  within  the  lordship  of  Ludford,  and  the  fences  and 
gates  to  be  made  and  put  up  at  the  ends  of  the  roads  or  highways 
next  any  of  the  adjoining  townships,  hamlets,  parishes,  or  places, 
&c. 

Upon  the  making  of  the  award  Parkinson  entered  upon  and 
became  seised  of  the  allotments  157  and  159,  and  of  the  grass  and 
herbage  of  the  allotment  158.  At  that  time  the  allotments  157 
and  158  consisted  entirely  of  arable  land  lying  open  together  and 
undivided,  but,  soon  after,  they  were  fenced  oflf,  in  accordance  with 
the  directions  in  the  award,  from  the  Six  Hills  Eoad  on  the  west 
and  another  road  on  the  south,  being  the  roads  set  out  in  the 
award,  on  which  they  respectively  abutted,  and  a  gate  was  placed 
in  the  western  boundary  of  aUotment  158,  forming  an  entrance  to 
both  allotments  from  the  Six  Rills  Boad. 

The  surveyors  of  the  highways  from  time  to  time  obtained  gravel 
and  other  materials  for  the  highways  from  the  allotment  158  down 
to  the  year  1813,  such  gravel  having  been  taken  from  the  site 
marked  "  Old  Pit "  in  the  plan  accompanying  the  case. 

In  1813  Parkinson  built  a  farm-house  on  part  of  allotment  157. 
About  the  same  time  he  built  a  cottage  and  bam  of  brick  with 
brick  foundations  on  part  of  allotment  158,  and  opposite  to  them 
stables,  a  cow-house,  and  other  buildings,  standing  partly  on 
allotment  158  and  partly  on  allotment  157,  and  so  far  as  they 
extended  covering  the  boundary  between  the  two  allotments.  The 
space  between  the  cottage  and  barn  and  the  stables  and  other 
buildings  was  enclosed  by  a  fence,  and  the  area  thus  enclosed, 
being  part  of  allotment  158,  has  ever  since  been  used  as  a  crew- 
yard.  About  ten  years  ago  the  fence  on  the  north  side  of  the 
crew-yard  was  removed,  and  in  its  place  sheds  were  erected,  partly 


592  MIKES  AND  MIKEBALS. 


Ho.  16.  —  Thew  ▼.  Wingate,  10  Beit  &  Smith,  716,  717. 

of  brick  and  partly  of  wood,  extending  over  the  northern  boundary 
of  allotment  158,  and  standing  partly  on  each  of  the  allotments. 
Part  of  allotment  158,  adjoining  the  cottage  and  bam,  has  from  the 
time  these  were  built,  been  used  by  Parkinson  and  the  plaintiff  as 
a  stack-yard.  Parkinson  also  put  a  fence  across  allotment  157, 
which  intersected  the  northern  boundary  of  allotment  158 
[*  717]  and  cut  off  a  small  angle  or  corner  *  of  the  allotment^ 
and  this  small  piece  or  corner  has  ever  since  formed  part 
of  the  adjoining  arable  field  and  been  cultivated  by  Parkinson  and 
the  plaintiff  therewith.  At  the  same  time  he  planted  a  narrow 
belt  of  trees,  extending  across  the  small  corner  of  allotment  158, 
and  along  and  over  the  western  side  of  the  same  allotment.  A 
year  or  two  after  1813  Parkinson  cleaned  out  the  "Old  Pit,"  from 
which  the  surveyors  had  theretofore  taken  gravel,  and  converted 
the  same  into  a  pond,  placing  posts  and  slabs  round  the  sides 
thereof,  and  it  has  so  continued  ever  since. 

The  surveyors  of  the  highways  never  after  the  year  1813,  until 
the  year  1858,  entered  upon  the  allotment  158,  or  exercised  there- 
in any  right  under  the  award  or  otherwise.  During  this  period 
they  purchased  the  gravel  required  for  the  repairs  of  the  parish 
highways  from  pits  situated  in  the  neighbouring  parishes.  The 
"  Old  Pit,"  in  allotment  158,  had  in  1813,  or  shortly  afterwards, 
become  very  wet,  and  the  soil  adjoining  was  of  a  wet  and  spongy 
nature,  and  the  surveyors  of  the  hi^ways  considered  that  it  was 
as  cheap  and  advantageous  to  the  parish  to  obtain  gravel  for  the 
roads  from  the  pits  in  the  neighbouring  parishes  as  to  make  use  of 
the  "  Old  Pit,"  in  allotment  158. 

In  1858  the  then  surveyors  of  the  highways  entered  the  allot- 
ment 158,  and  began  to  dig  for  gravel,  whereupon  the  plaintiff, 
who  was  devisee  of  Parkinson,  entitled  to  all  the  rights  of  Parkin- 
son in  respect  of  No.  158  as  well  as  of  Nos.  157  and  159,  sent  to 
them  notice  that  if  they  persisted  he  should  take  legal  proceedings. 
Notwithstanding  that  notice  the  surveyors  shortly  afterwards  again 
entered  and  took  gravel  from  No.  158.  In  August,  1860,  the 
defendants,  being  then  surveyors,  repeated  those  Acts. 

The  Inclosure  Act  and  the  award  were  to  be  referred  to  by  either 
party  on  the  argument. 

The  question  was,  whether  the  defendants  or  other  surveyors  of 
the  highways  for  Ludford  Magna  and  Ludford  Parva  for  the  time 
being  were  entitled  to  enter  No.  158  and  take  therefrom  stone. 


B.  C.  VOL.  XVIL]      sect.  II.  —  POSSESSION  AND  POWERS.  593 

Ho.  16.  —  Thew  ▼.  Wingate,  10  Beit  &  Smith,  717,  718. 

gravel,  and  other  materials  for  the  repair  of  roads  and  ways  within 
the  lordship  of  Ludford,  notwithstanding  that  entry  thereon  had 
not  been  made  nor  materials  taken  between  the  years  1813  and 
1858,  the  possession  and  use  of  the  grass  and  herbage  thereon 
having  been  during  the  whole  of  that  time  in  the  plaintiff  or  those 
under  whom  he  claimed. 

Mellish,  for  the  plaintiflf.  —  First  The  award  made  by  the  com- 
missioners under  Stat.  31  Greo.  III.,  c.  IxL,  vested  the  soil  of  No. 
158  in  the  surveyors  of  highways;  the  allotment  of  it  to  them 
amounted  to  a  conveyance  of  the  land  in  fee  simple  in  trust  for 
the  repair  of  the  highways  in  the  parish.  The  award  of  the  grass 
and  herbage  to  Parkinson  gave  him  only  a  right  in  the  nature  of 
an  easement.     Co.  Litt.  4  b. 

*  Secondly.  There  was  a  sufficient  taking  possession  of  [*  718] 
the  land  by  the  plaintiff  to  bar  the  right  of  the  surveyors 
within  Stat.  3  &  4  Will.  IV.,  a  27,  ss.  2,  3.  The  test  is,  whether  the 
plaintiff,  in  doing  the  acts  which  had  no  reference  to  his  right  of 
pasturage  committed  a  trespass.  [Cbompton,  J.  May  not  the  effect 
of  the  private  Act  and  award  be  to  vest  this  allotment  in  every 
succeeding  surveyor  ?  ] 

Thirdly.  Surveyors  of  highways  are  within  Stat.  3  &  4  Will  IV., 
c.  27.  By  the  interpretation  clause,  sect.  1,  "  the  word  '  person ' 
shall  extend  to  a  body  politic,  corporate,  or  collegiate,  and  to  a 
class  of  creditors  or  other  persons,  as  well  as  an  individual."  ITie 
President,  Jkc.  of  the  College  of  St.  Mary  Magdalen,  Oxford,  appt.» 
The  Attorney-General,  respt.,  6  H.  L.  C.  189 ;  Doe  d.  Lansdell  v. 
Gower,  17  Q.  B.  589,  21  L.  J.  Q.  B.  57,  in  which  it  was  held  that 
the  statute  runs  against  churchwardens  and  overseers ;  Grant  on 
Corporations,  p.  565. 

Lush,  for  the  defendants. — First  The  award  gave  to  Parkinson 
the  grass  and  herbage  to  be  occupied  and  enjoyed  by  him  exclu- 
sively. The  "grantee  of  herbage  may  enclose,  and  may  have 
action  of  quare  clausum  f  regit.**  Tomlin's  Law  Dictionary, "  Herb- 
age," citing  Dyer,  285  b,  and  2  EoU.  Eep.  356  (Zouch  v.  Moore). 
An  exclusive  right  to  growing  crops  gives  a  right  to  bring  an 
action  of  trespass.  Wilson  v.  Mackreth,  3  Burr.  1824 ;  Crosby  v. 
Wadsworth,  6  East,  602  (8  R.  R.  566).  [Ceompton,  J.  Why  might 
not  Parkinson  have  the  same  right  to  the  grass  as  every  commoner 
has?] 

Secondly.  The  surveyors  were  never  dispossessed  of  their  estate 

vox-  XVII.  —  38 


594  MIKES  AND  MINERALS. 


Ho.  16.  —  Thew  ▼.  Wingate,  10  BMt  &  Smith,  718,  719. 

in  the  whole  of  the  allotment  158.  McDonnell  v.  M*Kinty,  10 
Irish  L.  R  514,  525,  526 ;  SmUh  v.  Lloyd,  9  Ex.  562. 

Thirdly.  The  surveyors  are  not  within  the  terms  of  Stat.  3  &  4 
Will.  IV.,  c.  27.  Succeeding  surveyors  do  not  claim  under  their 
predecessors  in  office,  and  Stat  31  Greo.  III.,  c.  bd.,  did  not  enable 
them  to  hold  the  allotment  158  in  a  corporate  capacity  for  and  on 
behalf  of  the  parish  which  was  the  power  given  by  Stat  59  Geo. 
III.,  c.  12,  s.  17,  to  churchwardens  and  overseers  as  regards  build- 
ings, lands,  and  hereditaments  belonging  to  a  parish. 

Mellish  in  reply. 

CocKBUEN,  Ch.  J.  — I  am  of  opinion  that  our  judgment  must  be 
for  the  plaintiff.  The  effect  of  the  award  made  by  the  commis- 
sioners under  the  Act  of  Parliament  was  to  vest  the  soil  of  this 
acre  of  land  in  the  surveyors  of  the  highways  of  the  parish 
[*719]  for  the  time  being  and  their  *  successors,  and  all  that 
Parkinson,  whom  the  plaintiff  represents,  and  in  whose 
place  he  stands,  had  vested  in  him,  was  the  right  of  taking  the 
grass  upon  the  surface  of  the  soil.  There  may  be  cases  in  which, 
from  the  terms  employed  and  the  intention  of  the  parties  to  be 
collected  from  them,  a  grant  of  herbage  would  pass  the  surface  of 
the  soil ;  but  in  the  present  case  there  is  this  remarkable  circum- 
stance, that  by  the  Inclosure  Act  the  grass  and  herbage  upon  the 
land  to  be  set  out  for  getting  stone  for  the  repair  of  the  roads  is 
declared  to  be  the  property  of  the  person  to  whom  the  commis- 
sioners should  allot  it  in  like  manner  as  the  grass  and  herbage 
growing  upon  the  roads.  And  in  the  latter  case,  it  could  not  be 
intended  that  any  interest  in  the  soil  should  pass,  but  the  mere 
right  to  take  the  grass  either  by  cutting  it  or  by  the  mouths  of 
cattle  or  sheep,  or  other  like  modes  of  enjoyment.  Mr.  Lush 
contended  that  the  acts  of  ownership  or  of  possession  which 
Parkinson  exercised  were  referable  to  the  interest  in  the  soil  which 
he  took  under  the  award.  But  that  argument  fails  so  soon  as  we 
arrive  at  the  conclusion  that  Parkinson  took  nothing  in  the  soil 
but  the  mere  right  to  the  grass  on  the  surface. 

The  next  question  is,  whether  there  is  sufficient  evidence  of  acts 
of  ownership  by  Parkinson  to  lead  to  the  conclusion  that  the 
surveyors,  the  original  grantees  under  the  award,  were  dispossessed 
of  their  estate.  M'Donndl  v.  M'Kinty,  10  Irish  L.  R  514,  and 
Smith  V.  Lloyd,  9  Ex.  562,  establish  that  mere  abandonment  by 
the  owners  of  land  will  not  suffice.    There  must  be  possession 


B.  C.  VOL.  XVn.]       SECT.  II.  —  POSSESSION  AND  POWEBS.  595 

Ho.  16.  —  Thffw  Y.  Wingate,  10  Bert  &  Smith,  719,  720. 

by  some  other  person  in  order  that  the  Statute  of  Limitations  may 
commence  to  run,  and  therefore,  although  the  surveyors  from  the 
year  1813  may  have  abandoned  possession  they  would  not  have 
been  dispossessed  so  as  to  satisfy  the  terms  of  the  statute  within 
these  authorities,  unless  Parkinson  had  possession  adversely  to 
them  during  that  time.  Then  we  come  to  the  question  of  fact, 
which  we,  as  a  jury,  are  to  decide  upon  the  evidence.  [His  Lord- 
ship stated  the  facts.]  These  are  strong  acts  to  show  that  Parkin- 
son had  taken  possession  of  this  acre  as  absolute  owner,  making 
no  distinction  between  it  and  the  land  of  which  he  had  the  fee 
simple  by  the  award.  Coupling  these  circumstances  with  the  lapse 
of  time,  there  is  sufficient  to  establish  that  there  has  been  a  dis- 
continuance of  the  possession  of  the  surveyors  and  a  possession 
adverse  to  them  by  Parkinson  and  the  plaintiff  for  a  sufficient 
period  to  make  the  Statute  of  Limitations  a  bar  to  their  claim. 

As  to  the  surveyors  being  in  the  nature  of  a  corporation  against 
whom  Stat.  3  &  4  Will  IV.,  c.  27,  does  not  run,  sect.  1,  which 
defines  the  word  "person,"  is  in  as  large  terms  as  possibla  It 
would  indeed  be  practically  very  inconvenient  if  persons  holding 
property  in  connection  with  an  official  position,  or  in  trust 
for  a  parish,  after  discontinuing  *  their  possession  and  [*720] 
allowing  some  other  person  to  obtain  possession,  could  at 
the  end  of  forty,  or  it  may  be  four  hundred  years  turn  round  on 
those  who  had  possession  and  say  "we  are  not  persons  against 
whom  the  Statute  of  Limitations  can  operate."  Independently  of 
the  authorities  this  is  not  the  true  construction  of  the  statute. 

WiGHTMAN,  J.  —  During  a  portion  of  the  argument  I  entertained 
doubt  on  the  second  question,  it  having  been  considered  by  the 
Court  of  Exchequer  in  Smith  v.  Lloyd,  9  Ex.  562,  in  accordance 
with  M'Donnell  v.  M'Kinty,  10  Irish  L.  E.  514,  that  a  mere  dis- 
continuance will  not  bring  a  case  within  the  operation  of  Stat.  3  & 
4  Will.  IV.,  c.  27,  unless  it  is  followed  by  a  dispossession  by  some 
other  person.  The  doubt  I  entertained  was,  whether  the  taking 
possession  by  Parkinson  of  part  of  the  allotment  in  such  a  manner 
as  was  inconsistent- with  the  possession  by  the  surveyors  of  that 
part  was  such  evidence  of  dispossession  of  the  surveyors  as  would 
warrant  the  conclusion  that  they  were  dispossessed  of  the  whole. 
In  M'Donnell  v.  M'Kinty  it  was  considered  by  the  Court  of  Queen's 
Bench  in  Ireland  that  a  dispossession  of  part  of  the  minerals  would 
not  justify  the  legal  presumption  of  a  possession  of  the  whole,  so 


696  MINES  AND  MINEBALS. 


Ho.  le.— Tlww  ▼.  Wingate,  10  Bert  &  Smith,  790,  781. 

as  to  take  away  the  right  of  the  party  to  insist  on  proof  of  the 
operation  of  the  statute  as  to  the  other  part.  The  case  of  minerals 
is  not  indeed  exactly  analogous  to  the  present,  for  there  is  no 
doubt  that  Parkinson  might  exercise  certain  rights  on  the  surface; 
the  defendants  had  only  a  right  to  take  the  gravel.  The  question 
is,  Were  they  dispossessed  of  the  close  by  the  acts  of  Parkinson  ? 
The  acts  which  the  plaintiff  did  seem  to  be  wholly  inconsistent 
with  their  right.  He  took  possession  at  different  times  (more  than 
twenty  years  ago)  of  such  portions  of  the  allotment  as  he  thought 
proper,  and  erected  buildings  thereon,  without  leave  or  permission 
from  the  surveyors,  or  remonstrance  or  hindrance  by  them.  His 
right  was  not  such  as  entitled  him  to  do  these  acts  which  were 
adverse  to  the  rights  of  the  surveyors.  That  is  evidence  of  a 
general  dispossession  of  the  surveyors  of  the  fee  they  had  in  the 
corpus  of  the  close.  Upon  these  grounds  I  agree  in  the  judgment 
my  Lord  has  pronounced  in  accordance  with  the  opinion  of  my 
Brother  Crompton,  who  has  left  the  Court 

Blackburn,  J.  —  T  agree  with  the  decision  in  M  'DonneU  v. 
M'Kinty,  10  Irish  L.  E.  514,  which  has  been  followed  by  Smith  v. 
Lloyd,  9  Ex.  562,  and  I  adopt  the  words  used  in  the  latter  case 
(p.  572)  :  "  there  must  be  both  absence  of  possession  by  the  person 
who  has  the  right,  and  actual  possession  by  another,  whether  ad- 
verse or  not,  to  be  protected,  to  bring  the  case  within  the 
[*  721]  *  statute,"  3  &  4  Will  IV.,  c.  27.  In  the  present  case, 
although  the  fact  that  the  persons  claiming  the  gravel  pit 
went  out  of  possession  in  this  sense,  that  they  ceased  to  use  it,  is 
not  by  itself  evidence  to  show  that  the  statute  would  begin  to 
run,  it  greatly  corroborates  the  other  evidence  that  Parkinson  had 
taken  possession.  In  my  view  Mr.  Mellish  was  correct  in  his 
argument  that  the  question  of  fact  is,  Did  Parkinson,  under  whom 
the  plaintiff  claims,  twenty  years  before  the  acts  for  which  this 
action  was  brought,  take  such  actual  possession  of  the  ground 
below  the  surface  of  this  acre  that  he  and  the  plaintiff  after  him 
would  have  been  able  to  maintain  trespass  against  any  person  who 
bored  a  hole  or  meddled  with  the  subsoil  ?  If  there  was  evidence 
of  actual  possession  sufficient  to  maintain  an  action  against  a 
wrongdoer,  their  was  evidence  of  their  having  such  actual  pos- 
session of  the  whole  as  would  cause  the  Statute  of  limitations  to 
begin  to  run  against  the  rightful  owner,  who  had  not  only  ceased 
to  hold  possession,  but  against  whom  a  possession  to  be  protected 


B.  C.  VOL.  XVn.]      SECT.  IL  —  POSSESSION  AND  POWERS.  597 

Ho.  16.  —  TlMW  ▼.  Wingate,  10  Bert  &  Bmifh,  7S1,  722. 

under  the  statute  had  been  taken  within  M'Donnell  v.  M'Kmty 
and  Srwiih  v.  Lloyd,  It  was  said  by  Mr.  Lush,  that,  Parkinson 
having  a  right  to  deal  with  the  surface  as  he  liked,  what  he  did 
on  it  was  consistent  with  the  rights  of  the  surveyors.  On  the 
peculiar  wording  of  this  Inclosure  Act  I  doubt  whether  the  award 
is  equivalent  to  a  grant  of  the  vestura  terrce  or  the  herbagium  to 
Parkinson,  with  all  the  rights  which  might  be  conveyed  by  such  a 
grant.  It  is  coupled  in  the  Act  with  the  grass  and  herbage  grow- 
ing on  the  roads,  so  that  it  may  well  be  contended  that  Parkin- 
son's right  was  no  more  than  to  eat  the  grass  by  the  mouths  of 
his  cattle,  or  to  cut  and  convert  it  into  hay,  and  that  he  had  no 
right  to  the  soil  of  the  surface.  But  even  if  he  had  the  exclusive 
right  to  the  surface,  the  acts  which  he  did  in  1813,  viz.,  excluding 
other  persons,  digging  the  foundations  for  and  building  a  house, 
clearing  out  the  gravel  pit  and  turning  it  into  a  pond,  are  acts  of 
interference  with  and  ownership  of  the  subsoil  below  the  vestura 
terrce.  And  from  such  acts  in  part  of  a  single  and  undivided 
property  it  may  be  concluded  that  the  person  who  did  them  took 
possession  of  the  whole.  I  agree  with  M'Dannell  v.  M'Kinty, 
that  the  mere  fact  of  the  grantee  of  the  land  entering  and  taking 
possession  of  some  portion  of  the  mines  was  not  conclusive  evi- 
dence that  he  had  taken  possession  of  the  whole,  but  it  was  evidence 
to  be  left  to  a  jury.  In  the  present  case,  coupling  the  acts  of 
interference  with  the  subsoil  with  the  acts  of  ownership  on  the 
surface,  it  is  a  fair  inference  that  Parkinson  in  the  year  1813  took 
possession  of  the  whole  of  this  acre  of  land  absolutely.  Then 
every  additional  year  during  which  the  surveyors  did  not 
interfere  and  exercise  any  right  over  *  it  strengthens  the  [*  722] 
inference,  and,  after  forty-five  years,  we  are  justified  in 
drawing  it. 

With  regard  to  the  point  whether  Stat.  3  &  4  Will.  IV.,  c.  27, 
runs  against  the  surveyors  of  highways,  it  is  plain  that  they  are 
as  much  within  the  statute  as  churchwardens  and  overseers,  who 
are  made  a  gudd  corporation  by  Stat.  59  Geo.  III.,o.  12,  s.  17,  and 
that  the  cases  which  decide  that  churchwardens  and  overseers  are 
within  the  statute  decide  that  the  surveyors  also  are  within  it 

Judgment  for  the  plairUiff. 


598  MINES  AND  MINERALS. 

Vm.  16,  16.  —  fleftinan  ▼.  Vawdrqr ;  Thiaw  ▼.  Wingato.  —  Votes. 


ENGLISH  NOTES. 

In  tbe  case  of  Adair  y.  Shafto  mectioDed  by  Lord  Eldon  (Lord 
Chancellor)  in  tbe  course  of  the  argument  in  Norway  v.  Rowe  (1812), 
19  Ves.  144,  166,  12  R.  R.  167,  169,  the  rule  as  to  the  presumption 
(apart  from  the  Statute  of  Limitations)  was  carried  to  a  great  length. 
The  Lord  Chancellor  described  the  case  as  follows :  ''  An  estate«had 
been  sold  two  centuries  ago  with  a  reservation  of  coal  mines,  reserved, 
as  no  one  would  give  anything  for  them.  The  application  of  machineiy 
at  length  brought  them  forward ;  the  person  in  possession  of  the  surface, 
having  forgot  the  reservation,  brought  the  coals  to  bank  at  an  enormous 
expense;  and  then  the  other  party  came  forward.  Upon  the  trial  of 
the  issue  Mr.  Justice  Buller  laboured  with  the  jury  to  the  utmost 
upon  this  ground;  that,  the  proprietor  having  stood  by  during  the 
whole  of  the  expenditure,  the  jury  ought  from  that  alone  to  infer  some 
grant  though  it  could  not  be  produced :  but,  admitting  that  he  stated 
many  circumstances  very  material  upon  such  a  subject  with  reference  to 
mining  concerns,  with  which  he  was  well  acquainted,  I  finally  estab- 
lished that  his  direction  was  wrong." 

In  the  case  of  Norway  v.  Rowe  itself  the  plaintiff  not  having  the  legal 
title  claimed,  under  an  equitable  title,  a  right  to  share  profits  with  the 
person  who  held  a  legal  lease,  under  which  considerable  expenditure  in 
working  had  been  incurred.  Upon  a  motion  for  a  receiver,  the  Lord 
Chancellor  cited,  from  his  recollection,  a  case  of  Senhouse  v.  Christian 
[1  T.  R.  660,  1  R.  R.  300],  where  ''Lord  Rossltn  advanced  a  doctrine 
with  regard  to  mining  concerns,  upon  which  at  least  the  Court  would  not 
refuse  to  act  without  great  consideration;  holding  that,  if  the  plaintiff 
not  having  the  legal  interest,  stands  by,  suffering  the  defendant  to  incur 
great  expense  and  risk,  that  is  a  case  not  to  be  admitted  in  a  Court  of 
equity.  Consider  the  nature  of  such  a  concern.  It  frequently  remains 
for  years  in  the  most  hopeless  state ;  and  may  at  last  be  rendered  profit- 
able by  an  adventurous  speculator,  embarking  property  of  his  own  and 
others  in  the  pursuit.  The  speculation  is  very  hazardous :  perbaps  when 
you  have  a  golden  prospect,  the  whole  may  fail.  I  have  known  a  copper 
mine  producing  £20,000  a  year,  and  the  next  week  worth  nothing;  and 
that  is  as  true  of  coal  mines.  There  are  persons  who  will  stand  by;  see 
the  expenditure  incurred;  if  it  turns  out  profitable,  setup  their  claim;  if 
otherwise,  have  nothing  to  do  with  it.  It  deserves  great  consideration, 
whether  the  Court  would  interpose  even  by  decrees,  much  less  on  motion." 
The  motion  for  a  receiver  was  accordingly  refused. 

The  former  branch  of  the  rule  is  further  supported  by  the  cases  of 
McDonnell  v.  M'Kinty  (1847),  10  Ir.  L.  R.  614;  SmUh  v.  Lloyd  (1854), 


K.  C.  VOL.  XVn.]       SECT.  II.  —  POSSESSION  AND   POWERS.  599 

Ho.  17.  —  Burham  and  Snndarland  BaUway  Co.  v.  Walker,  S  Q.  B.  940.  —Bole. 

9  Ex.  562,  23  L.  J.  Ex.  194,  2  W.  B.  271,  22  L.  T.  289;  Low  Moor  Co. 
V.  StanUy  Coal  Co.  (1875),  33  L.  T.  436,  34  L.  T.  186. 

AMERICAN  NOTES. 

Non-user  of  mines  raises  no  presumption  against  an  owner  holding  written 
evidence  of  title,  there  being  no  adverse  or  conflicting  possession,  but  the  rule 
seems  to  be  otherwise  when  the  right  is  founded  on  use  alone.  Arnold  v. 
Stevens,  24  Pickering  (Mass.),  106;  35  Am.  Dec.  305. 


No.  17.  — DUEHAM  AND  SUNDERLAND  RAILWAY 
COMPANY  V.  WALKER 

(ex.  ch.  ¥kom  q.  b.  1842.) 

RULE. 

Where  the  owner  of  land  conveys  the  land,  excepting 
the  mines  and  minerals  with  certain  liberties,  the  liberties 
are  primh  fade  construed  as  restricted  to  the  purpose  of 
getting  the  minerals;  and  a  wayleave  so  reserved  over 
the  surface  does  not  entitle  the  mine  owner  to  a  wayleave 
for  different  or  larger  purposes. 

Dnrham  and  Sunderland  Sailway  Company  v.  Walker. 

2  Q.  B.  940-969  (s.  o.  2  Gale  &  Day.  326). 

Grant,  — Exception  of  Mines.  —  Beserved  Powers. —  Wayleave. — Limited 

Construction. 

The  following  facts  appeared  on  bill  of  exceptions.  C*^^^] 

The  Dean  and  Chapter  of  Durham ,  being  seised  in  fee  of  lands  in 
that  county,  demised  them,  in  1832,  to  W.,  by  indenture  between  them  and 
him,  containing  this  clause:  — 

'^  Except  and  always  reserved  out  of  this  present  lease,  indenture,  or  grant, 
the  woods,  underwoods,  and  trees  now  growing,  or  hereafter  to  grow,  upon  the 
said  demised  premises,  and  the  mines,  quarries,  and  seams  of  clay  within  and 
under  the  same,  with  full  and  free  authority  and  power  to  cut  down,  take,  and 
carry  away  the  said  wood  and  trees,  and  to  dig,  win,  work,  get,  and  carry  away 
the  said  mines,  quarries,  and  seams  of  clay,  with  free  ingress,  egress,  and  regress, 
wayleave  and  passage,  to  and  from  the  same,  or  to  or  firom  any  other  mines, 
quarries,  seams  of  clay,  lands  and  grounds,  on  foot  and  on  horseback,  and  with 
carts  and  all  manner  of  carriages,  and  also  all  necessary  and  convenient  ways, 
passages,  conveniences,  privileges,  and  powers  whatsoever  for  the  purposes  afore- 
said, and  particularly  of  laying,  making,  and  granting  waggonway  or  waggon- 


600  MINES  AND  MINERALS. 


Ho.  17.  —  Durham  and  Siindsrland  Bailway  Co.  ▼.  Walkar,  S  Q.  B.  940,  94L 

ways  in  and  over  the  said  premiBes,  or  any  part  thereof,  paying  reasonable 
damages  for  spoil  of  ground  to  be  thereby  done,  upon  the  adjudication  of  two 
indifferent  persons  to  be  chosen  by  the  parties,  always  excepted  and  reserved  to 
the  said  dean  and  chapter,  their  successors,  grantees,  or  assigns." 

A  railway  company,  under  a  grant  obtained  from  the  Crown,  had  made  a 
nulway  proper  for  carrying  coals,  but  capable  also  of  carrying  passengers.  In 
an  action  by  a  person  claiming  under  the  demise  of  1832,  who  had  made  a  sub- 
demise  to  a  tenant,  against  the  railway  company,  for  damage  to  his  reversion 
under  the  sub-demise,  it  was  held  by  the  Exchequer  Chamber,  — 

1.  That  the  right  reserved  to  the  dean  and  chapter  was  only  that  of  making 
and  using  ways  and  granting  wayleaves  for  the  purpose  of  getting  the  excepted 
wood  and  minerals,  not  for  general  purposes ;  nor  for  carrying  coals  and  minerals, 
from  whatever  mines  gotten ;  nor  for  can-ying  coals  and  minerals  of  their  own, 
gotten  elsewhere  than  on  the  demised  lands. 

2.  But  that,  if  the  road,  when  made,  was  such  as  the  reservation  authonsed, 
the  intention  to  use  it  for  a  purpose  not  authorised  was  no  ground  for  an  action 
by  the  reversioner,  though,  if  the  intent  were  carried  into  effect,  the  tenant  might 
be  entitled  to  bring  trespass. 

S.  That  the  proper  questions  for  the  jury  were,  whether,  when  the  road  was 
formed,  it  had  become  necessary  or  expedient  for  the  railway  company  to  make 
a  road  for  the  purpose  of  getting  the  excepted  minerals ',  and,  if  so,  whether  the 
road  made  was  a  proper  road  for  that  purpose,  assuming  that  it  would  be  used 
for  no  other ;  and  that,  if  either  question  were  answered  in  the  negative,  plaintiff 
might  recover  damages  for  any  injury  caused  by  the  railway,  of  sufficient  per- 
manence to  affect  the  reversion. 

Hddy  also,  that  the  right  retained  by  the  dean  and  chapter  under  the  inden- 
ture of  18S2,  was  not  properly  a  subject  of  exception  or  reservation,  but  an 

easement  newly  created  by  way  of  grant  from  the  lessee. 

« 

Case,  by  reversioner  (plaintiff  below),  for  entering  his  lands  in 
the  possession  of  certain  tenants  of  him  the  plaintiff,  and  making 

excavations  and  laying  bricks,  &c. 
[*941]  ♦Pleas:  1.  Not  guilty.  2.  That  the  lands  were  not, 
at  the  time  of  the  committing,  &c.,  in  the  possession  of 
certain  tenants  thereof  to  plaintiff,  nor  did  the  reversion  thereof 
belong  to  plaintiff  in  manner  and  form,  &c.  3.  That  by  means  of 
the  premises  in  the  declaration  mentioned  plaintiff  was  not  injured 
in  his  reversionary  estate,  &c.,  in  manner  and  form,  &c.  Issues  to 
the  country  were  tendered  and  joined  on  these  pleas.  4.  Leave 
and  license :  verification.     Replication,  de  injurid.     Issue  thereon. 

Plea  5.  That,  before  the  supposed  reversion  belonged  to  plain- 
tiff, and  before  and  at  the  time  of  making  the  indenture  after 
mentioned,  the  Lord  Bishop  of  St.  David's,  Dean,  and  the  Chapter 
of  Durham,  were,  and  from  thence  hitherto  have  been,  and  still 


K.  C.  VOL.  XVn.]      SECT.  II.  —  POSSESSION  AND  POWEES.  601 

Ho.  17.  —  Burhjun  and  SimdMland  Bailway  Co.  v.  Walkar,  2  Q.  B.  941-948. 

are,  seised  of  the  lands  in  the  declaration  mentioned  in  their 
demesne  as  of  fee :  and,  being  so  seised,  heretofore,  and  before  the 
reversion  belonged  to  plaintiff,  and  before  any  of  the  times  when, 
&c.,  to  wit  on  28th  September,  1832,  by  indenture,  then  made, 
between  the  dean  and  chapter  of  the  one  part,  and  plaintiff  of  the 
other  part,  sealed  with  the  chapter  seal  of  the  said  dean  and  chap- 
ter, the  said  dean  and  chapter,  for  them  and  their  success- 
ors, did  demise,  grant,  and  to  farm  let  *  unto  the  said  [*  942] 
William  Walker  (the  plaintiff  below),  his  executors,  admin- 
istrators, and  assigns,  amongst  other  things,  the  said  lands  in  the 
said  declaration  mentioned,  excepting  ^  and  reserving  the  woods, 
underwoods,  and  trees  then  growing  or  thereafter  to  grow  upon  the 
said  demised  premises,  and  the  mines,  quarries,  and  seams  of  clay 
within  and  under  the  same,  with  full  and  free  authority  and  power 
to  cut  down,  take,  and  carry  away  the  said  wood  and  trees,  and 
to  dig,  win,  work,  get,  and  carry  away  the  said  mines,  quarries, 
and  seams  of  clay,  with  free  ingress,  egress,  and  regress,  wayleave 
and  passage,  to  and  from  the  same,  or  to  or  from  any  other  mines, 
quarries,  seams  of  clay,  lands  and  grounds,  on  foot  and  on  horse- 
back, and  with  carts  and  all  manner  of  carriages,  and  also  all  neces- 
sary and  convenient  ways,  passages,  conveniences,  privileges,  and 
powers  whatsoever  for  the  purposes  aforesaid,  and  particularly  of 
laying,  making,  and  granting  waggon  way  or  waggonways  in  and  over 
the  last  mentioned  premises  or  any  part  thereof,  paying  reasonable 
damages  for  spoil  of  ground  to  be  thereby  done,  upon  the  adjudi- 
cation of  two  indifferent  persons  to  be  chosen  by  the  parties,  always 
excepted  and  reserved  to  the  said  dean  and  chapter,  their  success- 
ors, grantees,  or  assigns:  Habendum  (except  as  in  the  indenture 
was  excepted)  to  the  said  W.  Walker,  his  executors,  &c.,  from 
2nd  September  then  instant  for  twenty-one  years:  yielding  and 
paying,  &c. :  That  plaintiff  entered  by  virtue  of  the  demise,  and 
was  possessed,  &c. ;  and  that  he,  from  the  commencement  of  the 
term  hitherto,  and  during  all  the  time  that  the  said  sup- 
posed reversion  belonged  to  him,  was  entitled  to  *  the  [*  943] 
said  lands  in  the  declaration  mentioned  under  and  by  virtue 
of  the  said  indenture,  and  had  no  other  right  or  title  to,  or  estate  or 
interest  in,  the  same :  And  that,  after  the  making  of  the  indenture 
and  during  the  term,  &c.,  to  wit  on  the  days  in  the  declaration 
mentioned  when,  &c.,  "defendants,  as  the  servants,  and  by  the 
1  The  clause  is  stated  yerbatim  in  the  judgment,  pp.  614,  Q15,  post. 


602  MINES  AND  MINERALS. 


Ho.  17.  —  Durham  and  Bnnderlaiid  Bailway  Ck>.  v.  Walker,  2  Q.  B.  M8,  944. 

command,  of  the  said  dean  and  chapter,  entered  into  and  upon  the 
said  lands  in  the  said  declaration  mentioned  and  in  which,  &c.,  for 
the  purpose  of  forming  and  making,  and  then  formed  and  made  in, 
upon  and  over  the  same  lands,  a  certain  road  or  way,  being,  and 
which  was,  such  a  road  or  way  as  was  within  the  intent  and 
meaning,  and  coulS  and  might  be  made  by  virtue  and  in  pursuance 
of  the  said  exceptions  and  reservations  in  that  behalf  contained  in 
the  said  indenture."  The  plea  then  averred  that  from  the  time  of 
the  making  of  the  road  the  dean  and  chapter  were  ready,  and  that 
after  the  making  of  the  road,  and  the  committing,  &c.,  and  before 
action  brought,  they  tendered  and  offered  to  plaintiff  to  pay  him 
reasonable  damages  for  spoil  of  the  ground  on  adjudication  of  two 
indifferent  persons  according  to  the  indenture,  which  persons  they 
requested  plaintiff,  together  with  the  dean  and  chapter,  to  appoint, 
but  that  plaintiff  wholly  refused,  &c.  And  that,  for  the  purpose 
of  and  in  forming  and  making  the  said  road  or  way  so  formed  and 
made  as  aforesaid,  defendants,  as  the  servants,  and  by  the  com- 
mand, &c.,  necessarily  and  unavoidably,  &c.,  doing  no  unnecessary 
damage,  &c.,  and  as  it  was  lawful,  &c. :  and  that  by  means  of  the 
premises,  and  not  otherwise,  plaintiff  was  injured  in  his  reversion- 
ary estate,  &c. ;  which  are  the  same,  &c.  Verification. 
[*  944]  Eeplication  to  plea  5.  That,  though  true  it  is  that  *  the 
said  dean  and  chapter  were  seised  in  fee  of  the  said  land 
in  the  declaration  mentioned,  as-  in  the  fifth  plea  is  stated,  and 
that  the  said  indenture  was  made  as  therein  is  stated,  and  that 
plaintiff  had  not,  and  hath  not,  any  right  or  title  to  the  lands  in 
the  declaration  mentioned,  except  under  and  by  virtue  of  the  said 
indenture,  as  in  the  fifth  plea  is  alleged ;  for  replication,  neverthe- 
less, plaintiff*"  says,  that  defendants,  &c. :  de  injurid,  absque  residuo 
causce.    Issue  thereon. 

The  cause  was  tried  before  Coltman,  J.,  at  the  assizes  for  the 
county  of  Durham,  July  1837,  and  a  verdict  found  for  the  plaintiff 
below  on  all  the  issues,  the  defendants'  counsel  tendering  a  bill  of 
exceptions.  The  material  parts  of  the  evidence  stated  in  the  bill 
of  exceptions  were  as  follows. 

The  counsel  for  the  plaintiff  below  put  in  the  lease  granted  to 
him  by  the  dean  and  chapter,  and  an  agreement,  dated  October 
18th,  1834,  by  which  he  let  the  land  in  question  to  a  tenant  for 
nine  years.  And  they  proved  that  the  Durham  and  Sunderland 
Railway  Company,  and  the  other  defendants,  their  engineers,  had 


R.  C.  VOL.  XVn.]       SECT.  n.  —  POSSESSION  AND  POWERS.  603 

No.  17. — Durham  and  Sunderland  Railway  Co.  ▼.  Walker,  2  Q.  B.  944-848. 

made  certain  cuttings  and  embankments  in  the  land  so  let,  for  the 
purpose  of  carrying  the  railway  across  it.  John  Turner,  a  witness 
for  the  plaintifif,  stated  that  the  railway  "  was  finished  from  the 
Marquis  of  Londonderry's  railway  all  the  way  to  Sunderland ;  that 
the  company  began  the  railway  at  Broomside  colliery,  about  half 
a  mile  nearer  to  Durham  than  the  said  W.  Walker's  land  is  ;  and 
that,  at  the  other  end  of  the  railway,  it  was  finished  down  to 
Sunderland :  that  a  coach  conveying  passengers  travelled  daily  all 
along  that  part  of  the  said  railway;  viz.,  from  a  hut  about  300 
yards  on  the  Sunderland  side  of  the  said  W.  Walker's  land 
down  *  to  Sunderland  ;  but  that  the  railway  over  the  said  [*  945] 
W.  Walker's  land  was  not  completed,  and  had  not  been 
used.  And,  further,  that  the  said  company  had  built  an  engine- 
house  on  the  said  W.  Walker's  land  for  the  purpose  of  the  said 
railway." 

The  defendants  below  put  in  the  Act  4  &  5  Will.  IV.,  c.  xcvi. 
(local  and  personal,  public),  incorporating  the  company,  and  enabling 
them  to  contract  with  any  ecclesiastical  corporation  for  granting 
leases  to  them  for  any  term  not  exceeding  ninety-nine  years,  of  any 
tenements  within  (among  other  places)  the  parish  of  Pittington, 
where  the  lands  in  question  were  situate.  Also  an  indenture  of 
lease  dated  March  21st,  1835,  by  which  the  dean  and  chapter,  and 
the  dean  of  Durham  respectively  granted  and  demised,  and  granted, 
demised,  and  confirmed  to  the  company,  liberty,  power,  and  au- 
thority, to  enter  into  certain  lands  in  the  parish  of  St.  Giles,  in 
the  county  of  Durham,  and  also  into  the  several  lands  and  grounds 
then  of  and  belonging  to  the  said  dean  and  chapter,  **  not  being 
garden  or  pleasure  ground,"  &c.,  "and  respectively  situate  and 
being  in  the  several  townships  of  Pittington,  West  Eainton,"  &c., 
"  and  in  the  several  parishes  of  Pittington,  Hallgarth,"  &c.,  all  in 
the  said  county  of  Durham ;  "  and  to  form,  and  make  and  maintain 
in  the  line  or  direction  specified  in  the  plans  thereof,  marked,"  &c., 
"  in  the  last  skin  of  these  presents,  through  or  upon  and  over  the 
same  several  lands  and  grounds,  or  any  of  them,  excepting  as  last 
aforesaid,  upon  such  level,  and  with  such  inclined  plane  or  planes, 
and  in  such  manner,  in  all  respects,  as  they  the  said  lessees  shall 
think  proper  or  deem  expedient,  one  double  main  road  or  way  not 
exceeding  in  breadth  or  width,  including  the  gutters,  fourteen 
yards,"  &c ;  "  commencing,"  &c.  The  line  (towards  Sun- 
derland) was  then  *  pointed  out,  and  was  to  pass  "in,  [♦946J 


604  MINES  AND  MINERALS. 

Ko.  17.  —  Ihirham  and  SondarUmd  Bailway  Ck>.  v.  Walker,  2  Q.  B.  940,  947. 

through,  over,  and  along  the  several  lands  and  grounds"  of  the 
dean  and  chapter  in  the  township  of  Pittington,  &c.,  of  which 
W.  Walker  (the  plaintiff  below),  among  others,  was  lessee.  The 
indenture  also  gave  the  company  power,  under  certain  restrictions, 
to  alter  the  main  line,  or  abandon  it  and  make  a  new  line  over  the 
said  lands  ;  also,  under  certain  restrictions,  to  make,  and  alter,  &c., 
branch  roads  over  the  said  lands.  And  it  gave  them  "  full  power 
and  authority  to  use,  and  to  grant  and  authorise  the  use  of,  the 
roads  or  ways  and  premises  hereby  demised,  for  the  conveyance  of 
passengers,  coals,  goods,  wares,  merchandises,  and  other  commodi- 
ties, by  any  mode  of  conveyance  whatsoever,  whether  of  present 
use  or  future  invention :  and  also  to  make,  have,  use,  and  enjoy 
such  erections,  engines,  machines,  inclined  planes,  and  other  con- 
veniences, and  to  do  such  acts  in  or  upon  or  with  respect  to  the 
aforesaid  several  lands  or  grounds,  or  any  of  them,  or  any  part 
thereof,  excepting  as  firstly  before  mentioned,  comprised  within  the 
aforesaid  breadth  or  width  of  fourteen  yards  (except  as  aforesaid), 
as  shall  be  necessary  or  expedient  for  the  forming  and  making,  and 
maintaining  and  altering  or  diverting,  of  any  such  roads  or  ways 
and  other  the  premises  as  aforesaid,  or  for  the  conveyance  of 
passengers  or  any  such  goods  as  aforesaid:"  except  and  always 
reserved  to  the  lessors  power,  &c.,  to  work  mines  &c.,  or  pits  of 
coal,  and  grant  to  other  persons  wayleave  with  power  to  make 
roads,  &c.,  under  certain  restrictions.  Habendum  (except  as  before 
excepted)  for  ninety-nine  years  from  the  28th  September  then  last 
past,  yielding  and  paying,  &c.     And  the  lessees  convenanted  to  pay 

to  the  tenants  of  the  before-mentioned  lands,  as  compensa- 
[*  947]  tion  for  so  much  of  the  said  lands  as  should  be  taken  *  and 

occupied  or  used  by  the  lessees  under  or  by  virtue  of  that 
indenture,  an  annual  rent  equal  to  twice  the  annual  value  of  the 
same  land  if  used  for  any  common  agricultural  purpose ;  disputes 
as  to  amount  of  compensation  to  be  settled  by  the  adjudication 
of  two  indifferent  persons,  &c. 

The  defendants  further  proved  that  the  lands  mentioned  in  the 
declaration  were  parcel  of  those  referred  to  as  W.  Walker's  in 
this  indenture.  They  also  called  witnesses  who  gave  evidence  as 
follows.  John  Robson  stated :  That  the  company's  railway  then 
in  progress  over  plaintiff's  land  was  well  calculated  for  carrying 
on  a  traffic  in  coals  from  certain  collieries  (which  he  named)  to 
the  westward  in  the  said  county  of  Durham ;  that  there  were  in 


B.  C.  VOL.  XVn.]      SECT.  H.  —  POSSESSION  AND  POWERS.  605 

Ho.  17.— Burbam  and  BnaderUuLd  Bailway  Ck>.  ▼.  Walker,  2  Q.  B.  947,  MS. 

that  part  of  the  county  extensive  coal  fields;  and  that  the  rail- 
way was  well  adapted  for  conveying  coals  from  those  districts  to 
the  sea,  and  was  properly  formed  for  that  purpose,  being  a  double 
line ;  that  a  double  line  was  absolutely  necessary  for  the  convey- 
ance of  coals  from  that  district ;  that  the  same  line  which  would 
carry  coal  waggons  would  also  convey  passengers  or  waggons  with 
goods;  that  the  conveyance  of  coals  produces  greater  wear  and 
tear  in  a  railway  than  lighter  articles  would  do  ;  that,  if  the  rail- 
way were  completed,  and  passengers  were  also  carried  upon  it, 
it  would  increase  the  wear  and  tear  of  the  rails,  but  that  would 
be  the  only  difference  that  would  be  caused ;  and  that  the  width 
of  the  railway  in  Walker's  land  was  not  more  than  the  width  of 
the  parliamentary  line.  George  Thorman  deposed  that  the  rail- 
way was  calculated  to  carry  800  chaldrons  of  coals  in  twelve 
hours ;  and  that  the  coal  fields  in  the  districts  of  the  railway,  and 
for  carriage  of  coals  from  which  the  said  railway  would  be  avail- 
able, were  likely  to  produce  that  quantity  of  coal :  that 
the  *  engine-house  erected  as  aforesaid  was  not  too  large  [*  948] 
for  the  coal  traffic  likely  to  arise  on  the  said  railway ;  and 
that  if  it  were  wanted  to  carry  passengers  along  the  railway  it 
would  not  require  a  large  engine.  And  William  Langstaflf  deposed 
that  it  would  make  no  difference  to  the  owners  of  the  lands  through 
which  the  railway  runs,  if  passengers  were  carried  on  the  railway 
in  addition  to  coals. 

The  bill  of  exceptions  then  stated  that  the  defendants'  counsel 
thereupon  insisted  that  the  matters  proved  on  their  part  were 
sufficient  evidence  that  the  railway  made  by  them  on  plaintiff's 
land  "  was  such  a  road  as  could  and  might  be  made  by  virtue  and 
in  pursuance  of  the  exceptions  and  reservations  contained  in  the 
said  indenture  in  the  said  last  plea  mentioned,  notwithstanding  it 
might  be  intended  to  use  the  said  railway  for  other  purposes  than, 
and  in  addition  to,  the  carriage  and  conveyance  of  coals  and 
minerals : "  and  that  the  evidence  adduced  by  the  defendants  en- 
titled them  to  a  verdict  on  the  last  issue.  But  the  plaintiff's 
counsel  insisted  "  that  the  evidence  showed  that  the  said  railroad 
so  made  as  aforesaid  was  a  railway  for  other  purposes  as  well 
as  the  carriage  of  coals  and  minerals,  and  was  such  a  railway  as 
could  not  nor  might  be  made  on  the  said  land  by  virtue  and  in 
pursuance  of  the  said  exceptions  and  reservations  contained  in  the 
said  indenture ;  and  that  the  defendants  had  failed  to  prove  the 


606  MINES  AND  MINERALS. 

Ho.  17.  — Durham  and  Sunderland  Bailway  Ck>.  ▼.  WaUnr,  2  Q.  B.  94S-060. 

said  last  issue,  as  they  had  not  proved  any  tender  or  ofifer  of  com- 
pensation as  alleged  in  that  plea;"^  and  that  the  evidence  for 
the  defendants  was  not  sufficient  to  entitle  them  to  a  verdict  on 

the  last  issue,  or  to  bar  plaintiff  of  his  action. 
[*949]       *"And  the  said  Justice  left  the  question  to  the  jury, 

whether  or  not  the  said  railway  was  made  and  constructed 
over  the  land  of  the  plaintiff  for  other  purposes  than  the  convey- 
ance of  coals  and  other  minerals ;  and  did  then  and  there  declare 
and  deliver  his  opinion  to  the  jury  on  the  said  trial  that,  if  they 
found  that  the  said  railroad  so  made  on  the  said  land  of  the  said 
plaintiff  was  made  for  other  purposes  as  well  as  for  the  carriage 
of  coals  or  other  minerals,  it  was  not  such  a  road  as  could  or 
might  be  made  by  virtue  and  in  pursuance  of  the  said  exceptions 
and  reservations  contained  in  the  said  indenture,  notwithstanding 
the  form  and  structure  of  the  railway  was  fit  and  proper  for  the 
carriage  of  coals  and  minerals :  and  thereupon  the  said  Justice 
then  and  there  directed  the  said  jury  to  find  their  verdict  for  the 
plaintiff  on  the  said  last  issue,  if,  upon  the  evidence  adduced  on 
the  said  trial,  they  thought  that  the  said  railroad  was  so  made  for 
the  purpose  of  carrying  passengers  and  goods  as  well  as  for  the 
carriage  of  coals  and  minerals."  Whereupon  the  defendants' 
counsel  excepted  to  the  said  opinion  and  direction,  and  tendered 
a  bill  of  exceptions,  &c.  And  the  jury  thereupon,  under  the  said 
direction  of  the  Judge,  found  their  verdict  for  the  plaintiff  on  the 
last  as  well  as  on  the  other  issues. 

Judgment  being  signed,  the  defendants  sued  out  their  writ  of 
error  to  the  Exchequer  Chamber,  with  the  bill  of  exceptions 
annexed,  and  assigned  as  error  that  the  learned  Judge  left  the  last 
issue  to  the  jury  with  the  above  direction ;  whereas  "  the  said 
Justice  on  the  said  trial  ought  to  have  declared  his  opinion  to  the 
jury  that,  if  the  form  and  construction  of  the  said  railroad  so  made 
on  the  said  land  of  the  said  W.  Walker  were  fit  and  proper  for 

the  carriage  of  coals  and  other  minerals,  it  was  such  a 
[*950]  railroad  as  could  and  might  be  made  by  *  virtue  and  in 

pursuance  of  the  said  exceptions  and  reservations  con- 
tained in  the  said  indenture ;  and  ought  to  have  directed  the  jury 
aforesaid  that,  if  on  the  evidence  adduced  on  the  said  trial  they 
found  that  the  form  and  construction  of  the  said  railway  were 

1  This  point  waa  noticed  on  the  argn-  of  opinion  that  the  record  did  not  properly 
ment,  bat  not  diBcnssed,  the  Conrt  being    bring  it  before  them. 


B.  C.  VOL.  XVIL]      sect.  n.  —  POSSESSION  AND  POWEBS.  607 

Ko.  17.  —  Ihurham  and  Bunderlaiid  Bailway  Ck>.  v.  Walker,  2  (I.  B.  950,  051. 

fit  and  proper  for  the  carriage  of  coal  and  other  minerals,  and  that 
the  said  railroad  was  made  for  the  purpose  of  carrying  coals  or 
other  minerals,  it  was  such  a  railway  as  could  and  might  be  made 
by  virtue  and  in  pursuance  of  the  said  exceptions  and  reservations 
contained  in  the  said  indenture ;  and  with  that  declaration  of  his 
opinion,  and  direction,  the  said  Justice  ought  to  have  left  the  said 
issue  to  the  said  jury."  Also  that  the  Judge  at  the  trial  declared 
his  opinion  that  the  evidence  for  the  plaintiff  was  sufficient,  and 
was  admissible  and  ought  to  be  allowed,  to  entitle  him  to  a  verdict 
on  the  said  issue,  and  with  that  direction  left  the  said  issue  to  the 
jury;  whereas  the  same  was  not  sufficient,  &c.  And  error  was 
assigned  in  the  common  form. 

The  plaintiff  joined  in  error.     The  writ  of  error  was  argued  in 
Michaelmas  vacation,  1841.^ 

Joseph  Addison  for  the  plaintiffs  in  error^  defendants  below. 
The  principal  question  turns  on  the  construction  of  the  clause^  set 
out  in  the  fifth  plea,  in  the  lease  from  the  dean  and  chapter  to  the 
plaintiff.  That  clause  reserves  to  the  dean  and  chapter  the  right 
of  granting  way  leaves  over  the  demised  premises  to  and  from  other 
lands,  and  that  for  all  purposes.  So  far  as  it  operates  to  reserve 
a  right  of  granting  ways,  the  clause  is,  in  fact,  a  new  grant 
by  the  lessee  to  th^  dean  and  chapter,  not  *  an  exception  [•  951] 
by  them  from  their  own  grant.  Doe  d.  Douglas  v. 
Lock,  2  A.  &  E.  705,  743 ;  Shepp.  Touchst  80,  there  (2  A.  &  E. 
744)  cited ;  and  Wickham  v.  Hawker,  7  M.  &  W.  63,  76,  support 
this  distinction.  And,  if  this  be  a  grant,  it  must  be  taken  most 
strongly  against  the  grantor.  Now  the  clause  professes  to  except 
and  reserve  the  mines,  quarries,  and  seams  of  clay  within  and 
under  the  demised  premises,  with  power  to  dig,  win,  and  work  the 
said  mines,  &c.,  "  with  free  ingress,  egress,  and  regress,  wayleave 
and  passage  to  and  from  the  same,  or  to  or  from  any  other  mines, 
quarries,  seams  of  clay,  lands  and  grounds,  on  foot  and  on  horse- 
back, and  with  carts  and  all  manner  of  carriages,  and  also  all 
necessary  and  convenient  ways,  passages,  conveniences,  privileges, 
and  powers  whatsoever  for  the  purposes  aforesaid,  and  particularly 
of  laying,  making,  and  granting  waggonway  or  waggonways  in 
and  over  the  last-mentioned  premises  or  any  part  thereof."  The 
"  purposes  aforesaid "  are,  among  others,  those  of  "  wayleave  and 

1  November  29th.    Before  Tindal,  Ch.  J.,  Lord  Abinoeb,  Ch.  B.,  Coltills  and 
Maulb,  JJ.,  and  Pabkb  and  Rolfs,  BB. 


608  MIKES  Ain)  MINERALS. 


Ho.  17.  —  Burham  and  Bnnder1>nd  Bailway  Co.  v.  WaUcBr,  2  Q.  B.  061-95S. 

passage "  to  and  from  the  mines,  &c.,  on  the  demised  lands  or  to 
or  from  any  other  mines,  &c.,  lands  and  grounds.  The  words  "  of 
laying,"  &c.,  must  be  connected  with  "privileges  and  powers:" 
and  the  instrument,  so  construed,  grants  the  privilege  and  power 
of  laying,  making,  and  granting  waggonways  over  the  demised 
premises  for  the  purposes  of  wayleave  and  passage  to  and  from 
the  mines,  &c.,  on  the  demised  lands,  or  to  or  from  any  other  mines, 
&c.,  lands  and  grounds.  To  grant  a  wayleave  over  the  demised 
lands  only  would  have  been  but  a  small  benefit  It  is,  however, 
contended  that  the  wayleave  and  passage  are  for  the  sole  purpose 

of  carrying  coals  and  minerals :  but  they  are  granted,  not 
[*  952]  •  only  to  and  from  the  mines  under  the  demised  premises, 

or  any  other  mines,  but  also  to  and  from  "any  other" 
"lands  and  grounds,"  which  seems  inconsistent  with  such  a 
limitation.  But,  assuming  that  limitation  to  be  imposed,  still,  on 
an  issue  raising  the  question  whether  the  road  over  the  plaintiff's 
land  was  or  was  not  a  road  within  the  intent  and  meaning,  and 
such  as  might  be  made  by  virtue  and  in  pursuance,  of  the  ex- 
ceptions and  reservations  in  the  indenture,  the  mere  intention  to 
use  the  road  for  conveying  passengers  could  not  be  conclusive  as 
showing  that  the  road  was,  ab  initio,  wrongfully  made.  If  the 
defendants  have  made  their  road  in  execution  of  an  undisputed 
power,  which  they  have  not  exceeded,  though  they  have  also  con- 
templated the  exercise  of  an  irregular  one,  the  case  is  like  those 
in  which  a  party  has  claimed  to  act  under  an  illegal  authority, 
but  at  the  same  time  had  a  legal  one  sufficient  to  justify  what  he 
had  actually  done.  Governors  of  Bristol  Poor  v.  Wait,  1  A.  & 
E.  264;  Blessley  v.  Sloman,  3  M.  &  W.  40.  Further,  if  the 
plaintiff  relied  upon  more  having  been  done  than  was  necessary 
for  the  carriage  of  coals,  he  should  have  new  assigned.  The  con- 
sequence of  omitting  to  do  so  is  pointed  out  in  note  (3)  to  MeUor 
V.  Walker,  2  Wms.  Saund.  5  e.  Here  the  replication  both 
acknowledges  the  title  under  which  the  defendants  justify,  and 
admits  the  trespasses  justified  to  be  the  same  with  those  com- 
plained of  in  the  declaration.  Parke,  J.,  says,  in  Lmas  v.  Noekdls, 
10  Bing.  157,  176  (affirming  Lucas  v.  Noekdls,  in  Ex.  Ch.  4 
Bing.  729):   "It  is  quite  clear,  that  all  acts  done,  which  make 

the  party  unjustifiable  under  the  authority  of  the  law, 
[*  953]  and  a  trespasser  ah  *  initio,  cannot  be  given  in  evidence 

under  the  general  traverse,  but  must  be  specially  replied." 


E.  C.  VOL.  XVn.]      SECT.  U.  —  POSSESSION  AND  POWERS.  609 

Ko.  17.  —  Ihuliam  and  Bnndwrland  BaUway  Co.  v.  Walker,  2  Q.  B.  958,  054. 

W.  H.  Watson,  contra.  —  The  plain tifif  cannot  be  said  to  have 
made  any  grant  by  the  indenture  of  September  28th,  1832,  for  it 
does  not  appear  that  he  sealed  it.  The  clause  in  question  can 
operate  only  as  an  exception  or  reservation ;  and  it  may  be  con- 
strued as  saving  to  the  dean  and  chapter  rights  of  way  and  of 
granting  wayleaves  to  and  from  and  over  the  demised  lands  :  1,  for 
the  purpose  of  getting  and  carrying  the  minerals  under  them ;  or, 
2,  for  the  purpose  of  getting  and  carrying  both  the  minerals  under 
those  lands  and  the  minerals  under  other  lands  of  the  dean  and 
chapter ;  or,  3,  for  the  purpose  of  getting  and  carrying  the  minerals 
from  all  mines,  generally ;  or,  4,  for  all  purposes  whatsoever.  The 
first  is  the  true  construction.  The  woods,  underwoods,  and  mines 
upon  and  under  the  demised  premises  are  clearly  excepted  in  the 
outset ;  the  clause  then  adds,  "  with  full  and  free  authority  and 
power  to  cut  down,  take,  and  carry  away  the  said  wood  and  trees, 
and  to  dig,"  &c.,  "get,  and  carry  away  the  said  mines,  quarries,"  &c., 
**  with  free  ingress,  egress  and  regress,  way  leave  and  passage,  to  and 
from  the  same,"  &c.,  and  "all  necessary  and  convenient  ways, 
passages,  conveniences,  privileges,"  &c.,  "for  the  purposes  afore- 
said:" that  means  such  purposes  as  may  regard  the  previously 
excepted  woods,  underwoods,  and  mines.  [Lord  Abinger,  G.  B.  — 
The  words  "  purposes  aforesaid  "  must  include  every  purpose  before 
mentioned  in  the  clause.]  An  exception  "  is  always  taken  most  in 
favour  of  the  feoffee,  lessee,  &c.,  and  against  the  feoffor," 
&c.  Shepp.  *  Touchst.  100,  ch.  5 ;  Com.  Dig.  Fait  (E  8),  [*  954] 
citing  LofielcFs  Case,  10  Co.  Eep.  106  a,  106  b  (arguendo') ; 
The  Earl  of  Cardigan  v.  Armitage,  2  B.  &  C.  197,  207  (26  E.  R. 
313) ;  Bullen  v.  Denning,  5  B.  &  C.  842,  847  (29  R  R.  431). 
[Parke,  B.  —  The  timber  trees  there  were  properly  matter  of 
exception.  The  question  is,  what  is  properly  an  exception,  and 
what  is  a  grant  by  the  lessee.]  This,  not  being  under  his  seal,  is 
not  his  grant  [Coltman,  J.  —  Covenant  may  lie  upon  a  deed 
against  a  person  who  never  executed,  if  he  takes  an  estate  under 
it.]  That  form  of  action  may  be  right  in  such  a  case ;  but  there 
cannot  be  a  grant  by  a  person  who  never  executed  the  deed.  It  is 
very  doubtful  whether  the  words  "  with  free  ingress,  egress,"  &c., 
"  and  also  all  necessary  and  convenient,"  &c.,  are  so  connected  as 
to  form  an  exception  of  the  ways  and  right  of  granting  wayleaves, 
here  claimed.  In  Dand  v.  Kingscote,  6  M.  &  W.  174,  a  question 
arose  as  to  the  right  to  make  railways  under  a  grant  like  the 
vol..  XVII. — 89 


610  MINES   AND   MINERALS. 


Ho.  17.  —  DnrhAin  and  Sunderland  Railway  Co.  ▼.  Walker,  2  Q.  B.  lN^4-056. 

present;  but  a  decision  upon  it  became  unnecessary.  It  cannot, 
at  any  rate,  be  contended  that  the  wayleaves  which  were  to  be 
created  by  virtue  of  this  deed  were  wayleaves  in  gross:  if  they 
were  so,  they  were  a  privilege  which,  as  was  before  observed,  the 
plaintiff  ought  to  have  granted  by  deed.  Wickham  v.  Hawker, 
7  M.  &  W.  63  (see  pp.  76,  77) ;  Hewlim  v.  Shippam,  5  B.  &  C.  221 
(31  R  R  757).  See  Bird  v.  Higginson,  2  A.  &  E.  696  (affirmed 
on  error  in  Exch.  Ch.,  Bird  v.  Higginson,  6  A.  &  E.  824).  And, 
supposing  that  objection  to  be  surmounted,  the  questions,  to  whom 
such  alleged  grant  could  extend,  whether  to  the  dean  and  chapter 
only,  or  to  their  servants  or  grantees,  or  whether  they  might  confer 
on  others  the  privilege  of  granting  wayleaves,  would  raise 
[*  955]  difficulties  not  easily  to  *  be  solved.  [Lord  Abingeb,  C.  B. 
The  right  could  not  be  in  gross :  it  must  have  passed  with 
the  reversion  if  the  lessors  had  assigned.]  The  right,  if  not  in 
gross,  must  have  been  annexed  to  the  demised  lands,  or  at  all 
events  to  some  land  of  those  who  claim  the  privilege.  Yearb.  Hil. 
21  Ed.  III.  f.  2,  A,  B,  pi.  5  (see  4  Vin.  Ab.  519,  tit.  Chimin  Private 
(G),  pi.  3) ;  Fitz.  Nat.  Br.  183  N  and  note  (a),  ibid. ;  Bro.  Abr.  136  b, 
tit.  Chimyne  (see  pi.  3,  5,  7)  ;  &odley  v.  Frith,  Yelv.  159 ;  Alban  v. 
Brounsall,  Yelv.  163.  In  Burton  on  Eeal  Property,  432,  c.  6,  s.  3, 
5th  ed.,  it  is  said  that "  a  private  right  of  way,"  "  if  in  gross,  seems 
to  be  not  properly  a  tenement ;  but  it  may  be  annexed  to  a  house 
or  land,  and  made  to  follow  it  through  all  circumstances  of  owner- 
ship." So,  here,  the  rights  of  way  over  the  lands  now  in  ques- 
tion would  pass  to  the  lessees  of  other  lands  under  the  dean 
and  chapter ;  the  power  reserved  of  granting  wayleaves  over  the 
premises  here  demised  must  be  taken  to  mean  wayleaves  to  such 
lessees.  But  if  the  reservation  in  this  deed  can  be  deemed  to 
include  ways  to  other  lands  than  those  of  the  company,  they  must 
at  least  be  lands  from  which  coals  and  other  minerals  are  to  be 
brought.  And  accordingly,  in  Farrow  v.  Vansittart,  1  EaiL  Gas. 
602,  which  turned  upon  a  clause  in  one  of  the  dean  and  chapter's 
leases  exactly  like  that  now  in  question,  the  Vice-Chancellor 
(Sir  L.  Shadwell),  after  commenting  on  the  grammatical  construc- 
tion, said  (1  Bail.  Cas.  609) :  "  It  is  obvious  to  me  that  the  dean 
and  chapter  did  not  intend  to  reserve  to  themselves  the  unlim- 
ited right  of  making  roads  and  ways  of  any  description,  and 
[*  956]  in  any  direction,  for  all  *  purposes  whatever,  but  that  the 
power  of  making  ways,  which  is  reserved,  is  a  power  with 


R.  C.  VOL.  XVII.]      SECT.  II.  —  POSSESSION  AND  POWERS,  611 

Ho.  17.  —  DnrhAin  and  Sunderland  Railway  Co.  v.  Walker,  2  Q.  B.  956,  957. 

reference  to  what  precedes  it ;  namely,  that  of  going  to  and  from 
their  own  mines,  including  the  case  of  mines  of  other  persons,  as  to 
which  it  might  be  advantageous  to  them  to  give  a  passage  for  the 
coals  and  minerals  of  those  persons  over  their  own  lands.  That 
such  was  the  meaning  of  the  reservation  clause,  I  can  well  under- 
stand ;  but  it  is  clearly  not,  as  it  appears  to  me,  a  power  reserved 
of  making  ways  generally."  Lord  Cottenham,  C,  on  appeal  (1  Eail. 
Cas.  614),  inclined  to  the  same  opinion.  The  fourth  construction 
suggested,  which  would  give  to  the  dean  and  chapter  rights  of 
way  and  power  of  granting  wayleaves  for  all  purposes,  would 
enable  them  to  destroy  the  subject-matter  of  the  grant.  Such  a 
claim  of  right  would  be  against  legal  principles.  Badger  v.  Ford, 
3  B.  &  Aid.  153  (22  R  R  331);  Arlett  v.  miis,  7  B.  &  C.  346  (31 
R  R  214).  The  making  of  a  railway  like  that  in  question  was 
held,  in  Doe  dem.  Wawn  v.  Horn,  3  M.  '&  W.  333,  5  M.  &  W.  564. 
(where  the  Durham  and  Sunderland  Railway  Company  were  de- 
fendants), to  be  an  actual  ouster  of  the  lessor  of  the  plaintiff,  whose 
land  was  occupied  by  the  line.  The  right  construction,  there- 
fore, of  this  clause  must  be  one  of  the  three  first  mentioned ;  and, 
if  any  one  of  those  be  correct,  the  learned  Judge's  direction  is 
supported. 

Then,  further,  it  is  not  shown  on  this  record  that  the  road  in 
question,  when  made,  was  (according  to  the  terms  of  the  reserva- 
tion) "necessary  and  convenient "  for  the  purpose  of  getting  coals 
from  the  mines  of  the  dean  and  chapter,  or  from  any  others.  A 
mere  intention  to  get  them  at  some  time  was  not  sufScient. 
The  objection  *  successfully  made  with  reference  to  the  [•957] 
third  plea  in  Band  v.  Kingscote,  6  M.  &  W.  174,  applies 
here.  The  road  was  adapted  to  the  limited  purpose  of  carrying 
coals,  and  likewise  to  other  purposes ;  and  it  was  not  proved,  nor 
does  the  plea  allege,  that  the  road  was  required  for  the  limited 
purpose :  that  ought  to  have  been  shown,  and  also  that  it  was  so 
required  at  the  time  when  it  was  made.  [Tindal,  Ch.  J.  —  You  do 
not  contend  that  the  coal  must  be  actually  raised  before  the  road 
can  be  made?]  The  owners  must  be  going  to  raise  it  [Lord 
Abinger,  C.  B.  — The  road  must  have  been  intended  for  conveying 
coal.  The  real  question  is,  whether  an  intention  to  use  it  for 
another  purpose  also  makes  the  formation  of  it  unlawful.]  The 
defendants  below  ought  to  have  shown  that  it  was  actually  con- 
venient and  necessary  for  the  former  purpose.     The  necessity  and 


612  MINES  AND  MINERALS. 

Ho.  17.  —  Diirluun  and  BnnderUuid  Bailway  Co.  v.  Walker,  8  d.  B.  967,  95S. 

convenience  should  be  immediate;  and  the  plea  ought  to  state 
that.  [Parke,  B.  —  Whether  that  was  necessary  or  not,  is  one 
question ;  and  another  is,  whether  the  plea,  as  it  stands,  would 
have  been  good  on  general  demurrer.  Lord  Abinger,  C.  B.  —  Can 
you  say  that  this  plea  is  bad  after  verdict  ?  Parke,  B.  — That  is 
the  real  point.]  The  clause  under  which  the  defendants  below 
justify  reserves  a  right  of  way  to  and  from  "  mines,  quarries,  seams 
of  clay,  lands  and  grounds  "  (the  "  lands  and  grounds "  meaning 
such  as  are  ejuadem  generis  with  the  mines,  &c.) ;  the  substantial 
objection  is,  that  the  defendants  below  could  not,  in  the  supposed 
exercise  of  that  right,  make  a  railway  to  receive  other  railways 
from  all  parts  of  the  country,  but  not,  itself,  leading  to  any  mine, 

quarry,  or  seam  of  clay. 
[*  958]       *  The  plaintiff  below  was  not  under  the  necessity  of 

new  assigning.  The  defendants  justify,  in  general  terms, 
under  a  clause  of  reservation.  The  plaintiff  contends  that  the 
clause  reserves  a  way  for  the  carriage  of  minerals,  not  of  passengers, 
but  that  the  defendants  have  made  a  way  for  both  purposes,  and 
that  their  plea  of  a  qualified  right  does  not  cover  their  exercise  of 
a  general  one.  This,  if  supported  by  the  facts,  is  a  good  answer  to 
the  plea.  Jackson  v.  Stacey,  Holt  N.  P.  455  (17  R  R.  663) ;  Cow- 
ling  V.  Eigginsan,  4  M.  &  W.  245.  See  Allan  v.  Oomme,  11  A.  & 
E.  759.  If  the  defendants  had  pleaded,  in  express  terms,  a  right 
of  way  for  both  purposes,  and  the  plaintiff  had  traversed  it,  he 
would  have  been  entitled  to  the  verdict,  if  his  construction  of  the 
clause  is  correct  Drewell  v.  Towler,  3  B.  &  Ad.  735 ;  The  Marquis 
of  Stafford  v.  Coyney,  7  B.  &  C.  257  (31  E.  R  186).  See  Brunton  y. 
ffall,  1  Q.  B.  792. 

Joseph  Addison,  in  reply.  —  As  to  the  grant  not  being  under  the 
plaintiff's  seal;  the  plea  states  a  deed  inter  partes;  an  allegation 
that  each  party  sealed  is  unnecessary.  The  making  of  an  inden- 
ture implies  a  sealing  by  both  parties.  And,  if  the  sealing  did  not 
appear,  still,  if  the  clause  could  not  operate  as  a  reservation,  it 
must  take  effect  as  a  grant.  At  all  events  this  objection  comes 
too  late  after  verdict.  Vivian  v.  Champion,  2  Ld.  Bay.  1125.  See 
Partridge  v.  Ball,  1  Ld.  Bay.  136.  [Tindal,  Ch.  J.  —  In  that  case 
there  was  a  general  finding  for  the  plaintiff.  Parke,  B. — The 
decision  was  only  that  the  omission  of  "  sigillatam "  could  not  be 
taken  advantage  of.]  That  a  party  to  an  indenture,  agreeipg  to 
the  deed,  and  taking  an  estate  under  it,  is  bound  though  he  do 


R.  0.  VOL.  XVII.]      SECT.  IL  —  POSSESSION  AND  POWERS.  613 

Ho.  17.  —  Diirluun  and  Bnnderland  Railway  Co.  v.  Walker,  2  Q.  B.  959-900. 

not  seal,  *  appears  by  Com.  Dig.  Fait  (C  2).^  As  to  the  [♦  959] 
grant  of  a  way  in  gross,  the  facts  stated  in  Tearb.  Hil. 
21  Ed.  III.  f.  2,  A,  B,  pi.  5,  are  not  applicable  here ;  and  the 
question  discussed  regards  merely  the  proceeding  by  assize  of 
nuisance,  and  it  is  not  denied  that  for  a  way  in  gross  there  would 
be  some  remedy.  The  important  question  in  Dand  v.  Kingscote, 
6  M.  &  W.  174,  was,  whether  under  a  particular  reservation  of 
wayleave,  coals  gotten  in  township  A.  could  be  carried  over  town- 
ship B. ;  no  such  point  arises  in  this  case.  The  Vice-Chancel- 
LOR*S  judgment  in  Farrow  v.  Vansittart,  1  Rail.  Cas.  602,  can 
scarcely  be  considered  as  a  final  decision  on  the  reservation  clause  ; 
and,  in  connecting  the  words  "all  privileges  and  powers  what- 
soever "  with  the  words  "  of  laying,  making,"  &c.,  his  construction 
agrees  with  that  suggested  by  the  defendants  in  this  case.  He 
does  not,  however,  notice  the  words  "  lands  and  grounds  "  which 
follow  the  words  "to  or  from  any  other  mines,  quarries,"  and 
"seams  of  clay."  The  Lord  Chancellor,  on  appeal,  decided 
nothing  as  to  the  construction  of  this  clause.  Reservations  of 
general  rights  of  way  like  that  here  contended  for  are  very  usually 
introduced  into  leases  of  property  in  the  north  of  England ;  and, 
reference  being  had  to  the  practice,  there  can  be  no  real  doubt  of 
the  intention  with  which  the  present  clause  was  named.  It  is 
objected  that  the  road  does  not  appear  by  the  plea,  or  by  evidence, 
to  have  been  convenient  and  necessary  at  the  time  when  it  was 
made.  The  objection  in  point  of  pleading,  if  valid  at  all,  would 
have  been  matter  only  of  special  demurrer;  in  point  of 
fact,  it  is  fully  met  ♦  by  the  evidence.  The  point,  that  the  [*  960] 
railway  in  question  is  not  shown  to  communicate  directly 
with  any  mine,  was  not  raised  at  the  trial.  As  to  tlie  new  assign- 
ment, in  Jackson  v.  Stacey,  Holt  N.  P.  455  (17  R.  R.  663),  the 
defendant  expressly  claimed  the  way,  and  had  used  it,  for  a  pur- 
pose to  which  his  right  did  not  extend ;  the  same  observation 
applies  to  Cowling  v.  Higginson,  4  M.  &  W.  245.  Here  the  defend- 
ants set  forth  a  clause  of  reservation  (which  is  proved  as  pleaded), 
and  allege  that  they  entered  for  the  purpose  of  making,  and  made, 
a  road  or  way,  being  "  such  a  road  or  way  as  was  within  "  the 
reservation,  and  might  be  made  by  virtue  of  it.  If  the  plaintiff 
meant  to  reply  that  the  defendants  entered  for  a  different  purpose, 

^  Referring  to  Fait  (A  2).    See  Co.  Litt.  231  a,  there  cited;  Burnett  v.  Lyich, 
5  B.  &  C.  589  (29  K.  K.  343). 


614  MINES  AND  MINEBALS. 


Ho.  17.  — Diirluun  and  Bnnderlaiid  BaUway  Co.  ▼.  Walker,  8  Q.  B.  900,  901. 

and  made  a  road  to  be  used  otherwise  than  according  to  the  reser- 
vation (though  even  this  would  not  have  made  them  trespassers 
ab  initio^,  he  should  have  new  assigned.  Cur.  adv.  vuU. 

TiNDAL,  Ch.  J.,  now  delivered  the  judgment  of  the  Court 
This  was  a  bill  of  exceptions,  which  was  argued  before  the  Court 
of  Error  at  the  sittings  after  last  Michaelmas  Term.  It  was  an 
action  on  the  case  brought  by  William  Walker  (the  defendant  in 
error)  against  the  Durham  and  Sunderland  Railway  Company,  and 
two  of  their  servants,  wherein  he  complained  of  an  injury  to  his 
reversionary  interest  in  certain  lands  at  Pittington,  in  the  county 
of  Durham,  in  the  possession  of  his  tenants,  by  reason  of  the 
company  having  cut  and  formed  a  railway  through  those  lands. 
The  defendants  below  pleaded,  by  way  of  justification, 
[*  961]  that  the  dean  and  *  chapter  of  Durham,  being  seised  in 
fee  of  the  lands  in  question,  by  an  indenture  of  lease, 
dated  the  28th  day  of  September,  1832,  demised  the  same  to  the 
plaintiflf  below  for  a  term  of  twenty-one  years  from  the  2nd  day 
of  September  then  instant,  subject  to  certain  yearly  rents  thereby 
reserved,  and  with  an  exception  and  reservation  of  the  mines  and 
minerals,  and  of  certain  rights  of  way,  and  of  granting  wayleave ; 
which,  on  the  part  of  the  plaintiffs  in  error  it  was  contended, 
enabled  the  dean  and  chapter  to  authorise  them  to  make  the  rail- 
way in  question.  The  plea  then  avers  that  the  plaintiff  has  no 
title  to  the  land  except  under  that  demise,  and  goes  on  to  state 
that  the  defendants,  the  Forsters,  as  the  servants  of  the  dean  and 
chapter,  and  by  their  authority,  entered  upon  the  lands  and  formed 
the  railway  across  the  same,  such  railway  being  a  way  which, 
under  the  exception  and  reservation  contained  in  the  deed,  the 
dean  and  chapter  had  power  to  make.  To  this  plea  the  plaintiff, 
admitting  the  seisin  in  fee  of  the  dean  and  chapter,  and  the  demise 
to  the  plaintiff,  and  admitting  that  he  had  no  title  except  as  lessee 
under  that  demise,  replied,  De  injurid  absque  residtco  causcB.  The 
cause  was  tried  before  Mr.  Justice  Coltman,  at  the  Durham 
Summer  Assizes,  1837.  On  the  trial  the  plaintiff  gave  in  evidence, 
amongst  other  things,  the  lease  set  out  in  the  plea ;  and  the  excep- 
tion and  reservation,  on  which  the  company  relied,  appeared  to  be 
in  the  following  words :  — 

"  Except  and  always  reserved,  out  of  this  present  lease,  indenture, 
or  grant,  the  woods,  imderwoods,  and  trees  now  growing  or  hereafter 


B.  C.  VOL.  XVII.]      SECT.  IL  —  POSSESSION  AND  POWERS.  615 

Ho.  17.  — DnrhAm  and  ShmdArUnd  Bailway  Co.  v.  Walker,  S  d.  B.  961-968. 

to  grow  upon  the  said  demised  premises,  and  the  mines,  quarries, 
and  seams  of  clay  within  and  under  the  same,  with  full 
and  free  *  authority  and  power  to  cut  down,  take,  and  [*962] 
carry  away  the  said  wood  and  trees,  and  to  dig,  win,  work, 
get,  and  carry  away  the  said  mines,  quarries,  and  seams  of  clay, 
with  free  ingress,  egress  and  regress,  wayleave  and  passage,  to  and 
from  the  same,  or  to  or  from  any  other  mines,  quarries,  seams  of 
clay,  lands,  and  grounds,  on  foot  and  on  horseback,  and  with  carts 
and  all  manner  of  carriages,  and  also  all  necessary  and  convenient 
ways,  passages,  conveniences,  privileges,  and  powers  whatsoever 
for  the  purposes  aforesaid,  and  particularly  of  laying,  making, 
and  granting  waggonway  or  waggonways  in  and  over  the  said 
premises  or  any  part  thereof,  paying  reasonable  damages  for  spoil 
of  ground  to  be  thereby  done,  upon  the  adjudication  of  two  in- 
different persons  to  be  chosen  by  the  parties,  always  excepted  and 
reserved  to  the  said  dean  and  chapter,  their  successors,  grantees, 
or  assigns." 

The  defendants  then  gave  in  evidence  a  deed  under  the  seal  of  the 
dean  and  chapter,  authorising  them  to  make  a  double  line  of  railway 
across  the  lands  in  question,  and  to  use  the  same  for  the  convey- 
ance of  passengers,  coals,  goods,  wares,  and  merchandise ;  and  it  was 
proved  that,  in  pursuance  of  that  authority,  the  company  had 
formed  a  double  line  of  railway  through  a  very  considerable  line  of 
country,  including  the  lands  in  question.  Evidence  was  given,  on 
the  part  of  the  plaintiflF,  to  show  that  the  railway  was  constructed 
for  the  purpose  of  being  used  for  the  conveyance  of  goods  and  pas- 
sengers as  well  as  of  coals  and  minerals,  and,  on  the  part  of  the  de- 
fendants to  show  that  the  railway  was  not  more  than  was  necessary 
for  the  carriage  of  the  coals  and  minerals  likely  to  be  sent  along 
it  from  the  western  part  of  the  county,  with  which  it  commu- 
nicated. 

•Upon  this  evidence  the  learned  Judge  declared  his  [*963] 
opinion  to  the  jury  that,  if  the  railway  was  made  for 
other  purposes  as  well  as  for  the  carriage  of  coals  and  minerals,  it 
was  not  such  a  road  as  could  be  made  in  pursuance  of  the  excep- 
tions and  reservations  contained  in  the  indenture  of  demise.  And 
he  directed  them  that,  if  they  thought  the  railway  was  so  made 
for  such  other  purposes  as  well  as  for  the  carriage  of  coals  and 
minerals,  then  they  ought  to  find  a  verdict  for  the  plaintiff.  To 
this  direction  the  counsel  for  the  defendants  excepted;  and  the 


616  MINES  AND  MINERALS. 


Ho.  IT.  —  Dnxluun  and  Smidsriaiid  Bailway  Co.  ▼.  Wallnr,  8  Q.  B.  96S,  964. 

question  for  our  decision  is,  whether  that  direction  of  the  learned 
Judge  was  right.     And  we  think  it  was  not. 

The  injury  of  which  the  plaintiff  complains  is  not  a  trespass  affect- 
ing his  possession  of  the  land  in  question,  for  he  is  not  in  possession 
at  all ;  but  it  is  the  injury  to  the  inheritance,  occasioned  by  the 
defendants  having,  as  he  alleges,  wrongfully  made  across  the  lands 
of  his  tenants  a  railway  which  they,  the  defendants,  were  not 
warranted  in  making,  thereby  lessening  the  value  of  his  reversion. 
Now,  if  the  railway  is  such  a  railway  as  the  defendants,  at  the 
time  when  it  was  formed,  might  lawfully  make  for  the  purposes  for 
which  when  made  they  might  lawfully  use  it,  the  plaintiff  can  have 
no  ground  of  complaint  by  reason  of  the  intention  of  the  defend- 
ants also  to  use  it  for  other  purposes  for  which  they  have  no  right 
to  use  it.  Such  an  unwarranted  use  of  the  railway,  if  afterwards 
put  in  execution,  may  entitle  the  tenants  in  possession  to  maintain 
an  action  of  trespass ;  but  the  mere  intention  to  commit  such  a 
trespass  is  no  injury  to  the  reversioner ;  and  we  therefore  think  that 
the  direction  of  the  learned  Judge  was  incorrect.  The 
[•  964]  proper  question  for  the  jury,  as  it  appears  to  us,  was,  *  not 
whether  the  railway  was  made  for  other  purposes  as  well 
as  for  the  carriage  of  coals  and  minerals,  but  whether  it  was  such  a 
railway  as,  at  the  time  when  it  was  made,  it  was  reasonable  and 
proper  to  make  for  the  purposes  for  which  it  was  lawful  to  make 
it,  and  for  those  purposes  only.  This  being  so,  it  follows  of  neces- 
sity that  a  venire  de  novo  must  be  awarded. 

But  it  would  be  a  very  unsatisfactory  decision  of  this  case  if  we 
were  simply  to  award  a  venire  de  not?o,without  at  the  same  time 
declaring  our  construction  of  the  deed,  as  to  the  purposes  for 
which  the  dean  and  chapter  or  those  who  claim  under  them  are 
thereby  authorised  to  make  a  railway.  That  is  a  question  of  law 
to  be  decided  by  the  Court,  after  the  decision  of  which  there  can  be 
no  difficulty  in  putting  the  case  properly  before  the  jury.  Now  in 
the  argument  of  this  case  four  different  constructions  of  the  clause 
in  question  were  suggested.  First,  it  was  said  that  the  meaning 
was  to  reserve  to  the  dean  and  chapter  an  unlimited  power  of 
granting  wayleaves  over  all  or  any  part  of  the  lands  demised,  with- 
out any  restriction  whatever  as  to  the  uses  to  which  the  ways 
should  be  applied.  Secondly,  if  that  were  considered  too  wide  a 
construction,  then  it  was  contended  that  the  clause  authorised  the 
granting  of  wayleaves  for  the  purpose  of  carrying  coals  and  min- 


B.  a  VOL.  XVII.]      SECT.  II.  —  POSSESSION   AND   POWERS.  617 

Ho.  17. — DnrhAm  and  BnndTland  Bailway  Go.  v.  Walker,  8  Q.  B.  984-966. 

erals,  from  whatever  mines  they  might  have  been  raised  and  gotten. 
Thirdly^  it  was  argued  that  at  all  events  the  dean  and  chapter  had> 
under  the  reservation,  the  power  of  granting  wayleaves  for  the 
transport  of  their  own  mines  and  minerals,  whether  raised  from 
under  the  lands  demised  or  from  under  any  other  lands.  And, 
fourthly,  it  was  contended  that  the  deed  in  fact  gives  no 
power  to  the  dean  and  chapter,  except  that  •  of  making  ways  [*  965] 
and  granting  wayleaves  for  the  purpose  of  getting  the  coal 
and  minerals  excepted  in  the  demise.  The  important  question  for 
our  decision  is,  which  of  these  constructions  ought  to  be  adopted. 
And  we  are  all  of  opinion  that  the  fourth,  which  is  the  most  limited 
construction,  is  the  correct  one,  and  that  the  only  right  reserved  to 
the  dean  and  chapter,  under  the  clause  in  question,  is  that  of  mak- 
ing, and  granting  the  right  of  making,  ways  over  the  demised  lands 
for  the  purpose  of  getting  the  excepted  wood,  mines,  and  minerals. 
The  exception  is  of  all  woods,  underwoods,  and  trees  growing  or  to 
grow  on  the  demised  premises,  and  of  all  mines,  minerals,  and  seams 
of  clay  within  and  under  the  same,  with  full  power  to  cut  down  and 
carry  away  the  trees,  and  to  dig,  win,  and  carry  away  the  mines, 
quarries,  and  seams  of  clay,  with  free  ingress,  egress  and  regress, 
wayleave  and  passage,  to  and  from  the  same.  If  the  words  of  the 
exception  had  stopped  here,  it  would  have  been  quite  clear  that  the 
right  of  way  intended  was  only  a  right  of  way  for  the  purpose  of 
getting  the  trees  and  minerals  excepted.  It  would,  in  truth,  have 
been  like  the  words  immediately  preceding,  viz.,  with  power  to 
dig,  win,  and  carry  away ;  nothing  more  than  what  the  law  would, 
if  necessary,  have  given  as  incident  to  the  exception,  —  a  right  of 
passing  to  and  fro  for  the  purpose  of  making  the  exception  avail- 
able. Sheppard's  Touchstone,  100.  But  the  language  of  the  excep- 
tion goes  on  further ;  viz.,  or  to  or  from  any  other  mines,  quarries, 
seams  of  clay,  lands,  and  grounds,  on  foot  and  on  horseback,  &c., 
and  also  all  necessary  and  convenient  ways,  privileges  and  powers 
whatsoever  "  for  the  purposes  aforesaid,"  and  particularly  of  lay- 
ing, making,  and  granting  waggonways  in  and  over  the 
said  premises,  or  *  any  part  thereof,  &c.  These  are  the  [*  966] 
words  which  create  the  doubt.  Are  they  introduced  for 
the  purpose  of  securing  to  the  dean  and  chapter  a  general  right  of 
way  and  of  granting  wayleaves  over  the  demised  lands,  for  purposes 
other  than  that  of  getting  the  matters  excepted,  or  are  they  con- 
fined to  that  object  alone  ?    We  have  already  stated  that  we  think 


618  MINES  AND   MINERALS. 

No.  17.  — Durham  and  SnndarlAiid  Bailway  Co.  v.  Walker,  8  Q.  B.  966,  967. 

they  are  confined  to  the  latter  object.  The  things  excepted  are  the 
trees  and  minerals ;  and  we  consider  all  which  follows  as  mere 
accessories  to  the  exception.  The  word  "  with  "  must  be  taken  to 
mean  *'  and  as  incident  thereto ; "  so  that  the  passage  must  be  read 
as  if  it  was  framed  thus:  Excepting  the  trees,  mines,  and  minerals, 
and,  as  incident  thereto,  full  power  to  cut  down,  &c.,  tlie  trees,  and 
dig,  win,  and  carry  away  the  mines,  &c.,  and,  as  incident  to  such 
digging,  &c.,  free  ingress,  way  leave,  &c.,  to  and  from  the  lands 
demised,  and  to  and  from  any  other  lands  and  grounds,  and  also 
all  convenient  ways,  privileges,  and  powers  whatsoever  for  the 
purposes  aforesaid,  —  that  is,  for  the  purpose  of  getting  the  ex- 
cepted trees,  mines,  and  minerals,  —  and  particularly  the  power 
of  making  and  granting  ways  and  wayleaves  for  those  purposes. 
Neither  the  wayleave  to  and  from  the  mines  in  and  under  the 
lands  demised,  nor  the  wayleave  to  and  from  other  lands  and 
grounds,  purports  to  be  excepted  or  reserved  as  a  distinct  mat- 
ter of  exception  or  reservation.  Both  the  one  and  the  other  are 
mentioned  in  connection  with  the  mines  excepted,  and  in  no  other 
manner  whatever.  The  right  of  way  to  other  lands  and  grounds 
is  connected  with  the  right  of  way  to  the  mines,  &c.,  reserved, 
only  by  the  disjunctive  "  or :"  excepting  mines,  &c.,  with  a  right 
of  way  to  and  from  them, "  or "  to  and  from  any  other 
[*  967]  lands  and  grounds.  If  the  intention  *  had  been  to  reserve 
to  the  dean  and  chapter  a  right  of  way,  and  still  more  a 
right  of  granting  wayleaves,  independently  of  the  right  to  get  the 
excepted  trees  and  mines,  such  a  right  would  surely  have  been 
treated  as  a  separate  matter,  unconnected  with  the  previous  ex- 
ception, more  particularly  being,  as  it  was  stated  to  us  in  the  argu- 
ment to  be,  a  right  of  the  greatest  value  and  importance.  There 
is  nothing  unreasonable  in  supposing  that  the  lessors  meant  to 
reserve  to  themselves  a  right  of  getting  the  excepted  mines  and 
minerals  by  means  either  of  shafts  and  pits  to  be  sunk  on  the  de- 
mised premises,  or,  if  it  should  be  more  convenient,  by  means  of 
shafts  or  pits  already  sunk  or  to  be  sunk  on  adjoining  lands ;  and, 
if  such  was  the  intention,  the  language  of  the  deed  is  perfectly 
well  adapted  to  carry  it  into  effect 

It  is  to  be  observed  that  a  right  of  way  cannot,  in  strictness,  be 
made  the  subject  either  of  exception  or  reservation.  It  is  neither 
parcel  of  the  thing  granted,  nor  is  it  issuing  out  of  the  thing 
granted,  the  former  being  essential  to  an  exception,  and  the  latter 


B.  C.  VOL.  XVII.]      SECT.  II.  —  POSSESSION   AND   POWERS.  619 

Vo.  17.  —  DnrhAm  and  Sunderland  Bailway  Co.  v.  Walker,  2  Q.  B.  967-969. 

to  a  reservation.  A  right  of  way  reserved  (using  that  word  in  a 
somewhat  popular  sense)  to  a  lessor,  as  in  the  present  case,  is,  in 
strictness  of  law,  an  easement  newly  created  by  way  of  grant  from 
the  grantee  or  lessee,  in  the  same  manner  as  a  right  of  sporting 
or  fishing,  which  has  been  lately  much  considered  in  the  cases  of 
Doe  dem,  Douglas  v.  Locky  2  A.  &  E.  705,  and  Wickham  v.  Hawker, 
7  M.  &  W.  63.  It  is  not  indeed  stated  in  this  case  that  the  lease 
was  executed  by  the  lessee,  which  would  be  essential  in  order  to 
establish  the  easement  claimed  by  the  lessors  as  in  the 
nature  of  *  a  grant  from  the  lessee ;  but  we  presume  that  [*  968] 
in  fact  the  deed  was,  according  to  the  ordinary  practice, 
executed  by  both  parties,  lessee  as  well  as  lessors. 

It  was  pressed  in  the  argument,  on  behalf  of  the  plaintiffs 
in  error,  that  general  wayleaves,  or  powers  of  granting  rights  of 
way,  over  lands  demised,  as  easements  reserved  to  grantors  or 
lessors,  are  so  very  usual  in  the  north  of  England,  and  often  con- 
stitute so  very  valuable  a  property,  that  the  Court  will  so  construe 
the  reservation  as  to  carry  out  this  presumable  intention.  "But  to 
this  we  cannot  accede.  Indeed,  if  we  were  to  hazard  a  conjecture 
on  this  subject,  we  should  be  strongly  disposed  to  think  that  the 
words  in  the  present  lease,  and  which  it  was  suggested  are  the  same 
as  occur  generally  in  leases  from  the  dean  and  chapter,  were  prob- 
ably first  introduced  long  ago,  before  the  great  importance  of 
wayleaves  had  been  fully  felt  or  understood  either  by  grantors  or 
grantees,  and  when  really  nothing  more  was  thought  of  than  the  sub- 
ject-matter actually  excepted,  and  what  was  necessary  for  the  purpose 
of  making  that  available ;  and  that  the  same  words  have  been  sub- 
sequently retained  without  much  attention  to  their  precise  import. 
Be  that,  however,  as  it  may,  we  are  clearly  of  opinion  that  the 
ways  referred  to  in  the  exception  in  this  case  are  confined  to  ways 
necessary  or  proper  for  enabling  the  lessors  to  get  the  matters 
excepted,  and,  in  like  manner,  that  the  powers  mentioned  in  the 
latter  part  of  the  exception,  and  particularly  the  power  of  granting 
rights  of  way,  are  powers  which  can  only  be  exercised  "  for  the 
purposes  aforesaid,"  that  is,  for  the  purpose  of  getting  the  excepted 
trees,  mines,  and  minerals. 

A  venire  de  novo  must  therefore  be  awarded ;  and  *  the  [*  969] 
questions  for  the  jury  will  be,  whether,  at  the  time  when 
the  road  was  made,  it  had  become  necessary  or  expedient  for  the 
dean  and  chapter,  or  those  claiming  under  them,  to  make  a  road  for 


620  MINES  AND  MIKBRALS. 


Ho.  17. — DnrhAm  and  Bnadarlaiid  Bailway  Co.  ▼.  Wallnr,  8  Q.  B.  988.  —  Votoi. 

the  purpose  of  getting  the  excepted  mines,  and,  if  so,  whether  the 
road  actually  made  was  a  proper  road  for  that  purpose,  assuming 
that  it  would  be  used  for  no  other  object.  If  either  of  those  ques- 
tions is  answered  in  the  negative,  then  the  plaintifif  below  will  be 
entitled  to  compensation  in  respect  of  any  construction  of  a  per- 
manent nature  which  would  be  an  injury  to  the  reversion  which 
the  jury  may  consider  to  have  resulted  from  the  making  of  a  road 
at  all,  or  the  making  of  a  road  unnecessarily  large,  as  the  case 
may  be.  Venire  de  novo  awarded. 

ENGLISH  NOTES. 

In  the  case  of  Dand  v.  Kingscote  (1840),  6  M,  &  W.  174,  9  L.  J. 
Ex.  279,  referred  to  in  the  argument,  under  conveyances  by  the  same 
landowner  to  different  parties  of  two  several  parcels,  X.  and  Y.,  of  land, 
reserving,  in  each  case,  the  mines  of  coal  under  the  lands,  with  sufficient 
way  leave  to  and  from  the  said  mines,  it  was  held  that  the  coal  owner 
entitled  under  the  reservations  could  not  use  the  wayleave  over  X.  to 
carry  coals  got  in  Y.,  although  from  the  same  mineral  field.  So  far 
as  relates  to  the  construction  of  the  way,  it  was  held,  as  may  be  also 
inferred  from  the  principal  case,  that  the  mere  laying  down  of  a  rail  or 
tramway  for  the  purpose  of  carrying  the  coals  was  not  in  excess  of  the 
power  if  the  rail  or  tramway  so  laid  down  was  convenient  for  carry- 
ing the  coals  from  the  mines  comprised  in  the  reservation.  There  had 
been  a  similar  decision  on  that  point  in  Senhouse  v.  Christian  (1787), 
1  T.  R.  660,  1  R.  R.  300. 

In  Bidder  v.  NoHh  Staffordshire  Railway  Co.  (C.  A.  1878),  4  Q. 
B.  D.  412,  48  L.  J.  Q.  B.  248,  40  L.  T.  801,  27  W.  R.  540  (affirmed  in 
H.  L.  s.  n.  Elliott  v.  NoHh  Staffordshire  Railway  Co.y  W.  N.  1881, 
p.  52),  the  following  points  were  decided :  1.  Where  the  owner  of  land 
and  mines  conveyed  to  C.  the  surface  of  part  of  his  land,  but  by  the  deed 
of  conveyance  excepted  and  reserved  the  mines,  and  also  a  right  of  way 
along  the  southwest  side  of  the  land  conveyed  as  and  for  a  waggon  or 
cart  road  of  the  width  of  eighteen  feet,  the  Court  held  that  this  reserva- 
tion did  not  enable  the  grantor  to  lay  down  a  railroad  or  tramway  for  the 
carriage  of  coal  raised  from  neighbouring  collieries  belonging  to  him. 
(2)  By  a  lease  of  mines  the  lessees  were  authorised  to  take  and  use 
"full  and  sufficient  rail  and  other  ways  to  take  and  carry  away  the 
produce  of  the  said  (demised)  mines  or  any  other  mines."  It  was  held 
that  under  these  words  the  lessees  might  lay  down  a  railway  and  use  it 
for  carrying  away  the  produce  of  other  mines,  whether  worked  by  them 
or  not. 

It  is  quite  a  different  case  where  the  mineral  owner,  under  a  reserva- 


K.  C.  VOL.  XVII.]       SECT.  HI.  —  RAILWAY  AND  CANAL  COMPANIES.      621 
Ho.  18.  — Edlliday  v.  Major,  &«.  of  Bonmgli  of  Wtkofleld.  —  Bnlo. 

tion  of  certain  minerals  in  X.,  makes  a  tunnel  through  the  excepted 
minerals  under  X.  for  carrying  away  the  minerals  from  Y.  See  the 
cases  of  Duke  of  Hamilton  v.  Graham  and  Ramsay  v.  Blair,  referred 
to  in  the  notes  to  Nos.  5  and  6,  pp.  470,  472,  ante.  There  the  mineral 
owner  is  merely  using  his  own  property  for  his  own  purposes.  But  he 
must  not,  for  the  purpose  of  carrying  minerals  from  Y.,  use  a  tunnel 
through  minerals  under  X.  which  are  not  within  the  exception. 
Ramsay  v.  Blair,  in  notes  to  Nos.  5  and  6,  p.  472,  ante. 

The  rule  is  similar  in  principle  to  that  considered  under  Wimbledon 
&  Putney  Commons  Conservators  v.  Dixon,  No.  9  of  '' Easement, ''  10 
E.  C.  164  6/  seq. 

AMERICAN  NOTES. 

This  case  is  cited  in  Washburn  on  Easements,  p.  298,  and  in  Hagerty  v.  Lee, 
54  New  Jersey  Law,  580,  and  Washburn  cites  also  Dand  v.  Kinffucole,  6  M.  & 
W.  174  (p.  291). 


Section  III.  —  Powers  of  Railway  and  Canal  Companiea. 

No.  18.  — HOLLIDAY  v.  MAYOR,  ETC.  OF  BOROUGH  OF 

WAKEFIELD. 

(h.  l.  1890.) 

RULE. 

Under  the  modem  Acts  relating  to  railway  and  canal 
or  water  companies,  the  company  is  not  bound  to  pur- 
chase mines  if  they  elect  to  take  the  risk  of  the  mine 
owner  proceeding  with  his  workings.  But  under  the  27th 
section  of  the  Waterworks  Clauses  Act,  1847  (10  &  11 
Vict.,  c.  17),  the  water  company  would,  in  case  of  such 
election,  be  subject  to  the  risk  of  having  to  pay  damages 
for  the  consequential  drowning  of  the  mine. 


622  MINES  AND  MINERALS. 

Ho.  18.  —  Holliday  v.  Mayor,  &«.  of  Borongh  of  Wakofleld,  1891,  A.  C.  81,  8& 


HoUiday  and  others  v.  Mayor,  &o.  of  Borough  of  Wakefield. 

1891,  A.  C.  81-107  (8.  c.  60  L.  J.  Q.  B.  361 ;  64  L.  T.  1 ;  40  W.  R.  129). 

[81 J  Waterworks.  —  Beservoir,  —  Mines.  —  Compensation.  —  Prospective  Injury 
to  Mine. — Apprehended  Injury.  —  Waterworks  Clauses  ^cf,  1847(10£t 
11  Vict.,  c.  17),  ss.  6,  22,  25,  27. 

A  special  Act  incorporating  tho  Waterworks  Clauses  Act,  1847,  empowered 
the  making  of  a  reservoir  in  lands  containing  coal  mines.  The  waterworks 
undertakers  having  given  the  mine  owners  notice  to  treat  for  part  of  the  coal, 
the  mine  ownera  claimed  compensation  (to  be  settled  by  arbitration)  not  only 
for  the  value  of  the  land  to  be  taken  (as  to  which  no  question  arose),  but  also 
for  injurious  aflFection  and  prospective  damage.  The  arbitrator  found  that  the 
workings  of  the  mine  owners  had  not  as  yet  approached  the  reservoir  so  as 
to  cause  any  present  risk  to  tho  mines  from  the  existence  of  the  reservoir; 
that  if  the  mine  owners  were  free  to  work  their  mines  without  risk  of  inter- 
ruption from  the  undertakers'  works,  they  could  and  would  have  got  the  whole 
of  certain  seams  of  coal  under  the  reservoir  and  within  forty  yards  of  the  boun- 
dary, and  that  if  the  undertakers  purchased  and  retained  in  situ  the  coal  which 
they  had  given  notice  to  take  and  no  other  coal,  the  mine  owners,  by  reason  of 
tho  undertakers'  works  and  of  apprehension  of  injury  therefrom  to  one  seam, 
could  not  get  more  than  50  per  cent  of  the  coal  under  the  reservoir  or  within 
twenty  yards  of  its  boundary ;  that  a  prudent  lessee  working  without  right  to 
compensation  would  be  compelled  by  reason  of  such  apprehension  of  injury  to 
abstain  from  working  more  than  50  per  cent  of  the  coal  within  the  defined  area ; 
and  that  there  was  no  reason  to  apprehend  injury  present  or  future  from  the 
undertakers'  works  to  any  part  of  the  mines  if  50  per  cent  of  the  coal  in  the 
defined  area  were  retained  in  situ. 

Held,  affirming  the  decision  of  the  Court  of  Appeal  (20  Q.  B.  D.  699),  that 
the  mine  owners  were  not  entitled  to  claim  or  to  recover  compensation  for  the 
prospective  prevention  of  the  working  of  more  than  50  per  cent  of  the  coal  within 
the  defijied  area  j  inasmuch  as  though  the  word  "  lauds  "  in  sect.  6  of  the  Water- 
works Clauses  Act,  1847,  includes  '*  mines,'*  the  mine  owners  were  not  injuri- 
ously affected  within  the  meaning  of  sect.  6 ;  neither  could  they  at  present  claim 
or  lecover  under  the  mines  clauses  of  that  Act,  sects.  18  to  27. 

Appeal  from  so  much  of  an  order  of  the  Court  of  Appeal  (Frt 

and  Lopes,  L.  JJ.,  Lord  Esher,  M.  B.,  dissenting)  as  was 

[*  82]  *  adverse  to  the  appellants.    That  order  reversed  in  part 

a  judgment  of  the  Queen's  Bench  Division  (Mathew  and 

Cave,  JJ.),  20  Q.  B.  D.  699. 

The  following  statement  of  the  material  facts  is  taken  from  the 
judgment  of  Lord  Herschell  :  — 

The  respondents  were  authorised  by  the  Wakefield  Waterworks 
Act,  1880,  to  construct  certain  waterworks  with  a  reservoir  at 


B.  C.  VOL.  XVIL]       sect.  111.  —  RAILWAY  AND  CANAL  COMPANIES.      623 
Ho.  18.  —  HdUiday  ▼.  Mayor,  &«.  of  Borough  of  Wakeflold,  1891,  A.  C.  88,  88. 

Ardsley.    The  Waterworks  Clauses  Act,  1847,  and  the  Lands 
Clauses  Act  were  incorporated  with  this  Act. 

By  two  leases,  dated  the  26th  of  August  and  the  8th  of  Decem- 
ber, 1873,  four  seams  of  coal,  known  as  the  Cannel,  the  Doggy,  the 
Little,  and  the  Middleton,  underlying  certain  lands,  were  demised 
to  the  appellants  for  forty  years,  from  the  1st  of  August,  1872,  and 
the  2nd  of  February,  1873,  respectively,  subject  to  the  payment  of 
certain  minimum  and  other  rents. 

About  the  year  1872  the  appellants  sunk  a  shaft  at  East  Ardsley, 
and  have  worked  and  still  continue  to  work  the  Middleton,  Little, 
and  Doggy  seams  under  both  leases.  They  have  not  yet  begun  to 
work  the  Cannel  seam.  Before  the  19th  of  June,  1883,  the  cor- 
poration had,  under  the  said  Act,  acquired  certain  lands,  includ- 
ing land  the  coal  under  which  was  demised  by  the  leases  I  have 
referred  to,  and  had  begun  to  make  their  reservoir  on  the  acquired 
land.  On  that  day  the  appellants  gave  notice  to  the  respondents 
that  they  were  the  lessees  of  the  coal  lying  partly  under  the 
proposed  reservoir  and  partly  under  land  within  forty  yards 
of  the  prescribed  limits  of  the  appellants'  works,  and  that  they 
intended  to  work  the  same.  The  respondents  thereupon  gave  the 
appellants  a  counter  notice  to  the  effect  that  if  the  reservoir  was 
made  and  the  appellants  should  by  fair  and  regular  working 
approach  within  the  distance  prescribed  by  the  Waterworks 
Clauses  Act,  1847,  the  respondents  would  expect  the  appellants  to 
give  the  usual  notice,  and  would  then  be  ready  to  take  such  steps 
as  could  lawfully  be  required  of  them. 

Prior  to  the  month  of  November,  1883,  the  appellants  had  made 
preparations  to  bore  with  a  view  to  sinking  a  pit  at  a  spot  where 
such  a  pit  would  have  interfered  with  the  proposed  reservoir. 
Although  the  minerals  only  were  demised  to  them,  they  were  em- 
powered, for  the  purpose  of  working  the  minerals,  to  sink  pits  and 
exercise  other  rights  on  the  surface. 

*  On  the  1st  of  November  the  respondents  gave  the  ap-  [*  83] 
pellants  notice  to  treat  for  thirty-five  acres  of  the  Middleton 
seam,  and  also  for  their  surface  rights  over  certain  lands  defined 
by  the  notice.  The  appellants  on  the  19th  of  November  gave 
particulars  of  their  claim  for  compensation  in  respect  of  these 
matters,  and  desired  that  the  amount  should  be  settled  by  arbi- 
tration. Arbitrators  and  an  umpire  were  accordingly  appointed 
for  that  purpose.    A  further  notice  was  afterwards  given  by  the 


624  MINES  AND   MINERALS. 


Ho.  18.  — HoUiday  ▼.  Mayor,  &«.  of  Bonrogh  of  WaksAdd,  1881,  A.  C.  88,  84. 

appellants  that  they  would  claim  in  the  arbitration  compensation 
in  respect  of  the  injurious  affecting  of  their  seams  of  coal,  and  for  so 
much  of  their  seams  not  purchased  by  the  respondents  as  could  not 
be  worked  by  reason  of  the  making  and  maintaining  of  their  works, 
or  by  reason  of  the  apprehended  injury  in  the  working  thereoL 
The  respondents  disputed  the  validity  of  the  notice  and  their  lia- 
bility to  make  the  compensation  claimed.  It  was,  however,  agreed 
that  without  prejudice  to  the  contention  of  the  respondents  the 
matters  in  the  last-mentioned  notice  should  be  taken  to  be  within 
the  jurisdiction  of  the  arbitrators  and  umpire  to  the  same  extent 
and  in  the  same  manner  as  if  they  had  been  comprised  in  the  claim 
of  the  19th  of  November.  The  arbitration  accordingly  proceeded, 
and  the  umpire  made  his  award  in  the  form  of  a  special  case  for  the 
opinion  of  the  Queen's  Bench  Division. 

He  found  that  the  workings  of  the  appellants  had  not  as  yet 
approached  the  reservoir  in  such  a  manner  as  to  cause  any  present 
risk  to  the  appellants'  mines  or  seams  from  the  existence  of  the 
reservoir  assuming  it  to  be  filled  with  water.  That  if  the  appellants 
were  free  to  work  their  mines  without  risk  of  interruption  from  the 
respondents'  works,  they  could  and  would  have  got  the  whole  of  the 
Middleton  and  Cannel  coal  under  the  reservoir  and  within  forty 
yards  of  the  boundary,  within  the  terms  of  their  leases,  and  that  if 
the  respondents  purchased  and  retained  in  situ  the  thirty-five  acres 
of  the  Middleton  seam  which  they  had  given  notice  to  take,  and  no 
other  coal  in  that  or  any  other  seam,  the  appellants,  by  reason  of 
the  respondents'  works  and  of  apprehension  of  injury  therefrom  to 
the  Cannel  seam,  could  not  work  or  get  more  than  50  per  cent  of 
the  cannel  and  black  coal  under  the  reservoir  or  within  twenty 
yards  of  its  boundary.  He  also  found  that  a  prudent  lessee 
[*84]  working  without  right  to  compensation  *  would  be  com- 
pelled by  reason  of  such  apprehension  of  injury  to  abstain 
from  working  or  getting  more  than  50  per  cent  of  the  cannel  and 
black  coal  in  the  area  above  described,  and  that  there  was  no  rea- 
son to  apprehend  injury,  present  or  future,  from  the  respondents' 
works  to  any  part  of  the  Doggy  seam  or  of  the  Little  seam  or  to 
any  part  of  the  Cannel  seam,  if  50  per  cent  of  the  cannel  and 
black  coal  in  the  defined  area  were  retained  in  situ,  or  to  any  part 
of  the  Middleton  seam. 

The  first  question  submitted  for  the  opinion  of  the  Court  (which 
alone  it  is  necessary  to  state)  was  as  follows:  — 


B.  C.  VOL.  XVn.]       SECT.  UI.  —  RAILWAY  AND  CANAL  COMPANIES.      625 
Vo.  It.  —  HoUiday  ▼.  Xayor,  &o.  of  Bonragli  of  Wakafleld,  I88I,  A.  C.  84,  $6. 

Whether  by  virtue  of  the  Waterworks  Clauses  Act  or  of  the 
Lands  Clauses  Act,  or  otherwise,  the  claimants  are  entitled  upon 
this  arbitration  to  claim  and  to  recover  compensation  for  the  pros- 
pective prevention  of  the  working  of  more  than  50  per  cent  of  the 
cannel  and  black  coal  within  the  defined  area. 

The  Divisional  Court  answered  this  question  in  the  affirmative ; 
but  the  Court  of  Appeal,  by  a  majority,  reversed  this  decision,  and 
ordered  that  the  question  should  be  answered  in  the  negative.^ 

1890.  March  18 ;  May  5, 6.  Sir  R  Webster,  A.  G.,  and  Eigby, 
Q. C.  (George  Banks  with  them),  for  the  appellants:  — 

The  appellants  are  entitled  to  compensation  now  for  the  loss  of 
50  per  cent,  and  can  claim  it  in  one  of  two  ways  under  the  Water- 
works Clauses  Act  1847.  By  sect.  3  "  lands "  includes  heredita- 
ments of  any  tenure,  and  therefore  mines.  Smith  v.  Cheat  Western 
Railway  Companyy  3  App.  Cas.  165,  180,  Mines,  therefore,  are 
"lands"  within  sect  6;  and  the  appellants'  mines  are  "injuriously 
affected  by  the  construction  and  maintenance  of  the  works  "  author- 
ised by  the  special  Act,  viz.,  the  reservoir.  The  being  prevented  from 
working  more  than  50  per  cent  is  an  injurious  affection. 
Part  *of  the  appellants'  lands  are  taken,  and  they  come  [*85]. 
within  the  principle  of  injurious  affection  as  laid  down  in 
the  decided  cases  ending  with  Cowper-Essex  v.  Local  Board  for 
Acton,  14  App.  Cas.  153.  Compensation  was  intended  by  the  Leg- 
islature to  be  assessed  once  for  alL  Croft  v.  London  and  North* 
Western  Railway  Company,  3  B.  &  S.,  at  p.  453.  If,  therefore,  it  is 
not  assessed  now,  it  never  can  be ;  but  if  the  case  is  not  within 
sect.  6,  it  comes  under  sect  25,  by  which  the  undertakers  are  to 
pay  "  for  any  mines  or  minerals  not  purchased  by  the  undertakers 
which  cannot  be  obtained  by  reason  of  making  and  maintaining 
the  said  works,  or  by  reason  of  such  apprehended  injury  from 
the  working  thereof  as  aforesaid.*'  The  "  apprehended  injury  "  is  the 
not  being  able  to  work.  The  clause  is  similar  to  sect.  81  of  the 
Pailways  Clauses  Act,  1845,  which  has  been  held  to  include  pros- 
pective injury.      Whitehouse  v.  Wolverhampton  Railway  Company, 

^  20  Q.  B.  D.  699.    The  second  qnes-  The  umpire  made  altematiye  awards  for 

tion   sabmitted  for  the  opinion   of   the  different  sums,  according  as  the  two  qae»- 

Court  was,  whether  hy  virtue  of  the  said  tions  were  answered  in  the  affirmative  or 

Acts  or  otherwise  the  claimants  are  en-  negative.    The  second  question  was  not 

titled  upon  this  arbitration  to  claim  and  contested  in  either  Conrt,  and  both  the 

to  recover  compensation  for  being  pre-  Divisional  Court  and  the  Court  of  Appeal 

vented  from  sinking  a  shaft  at  Blue  Fits,  answered  it  in  the  affirmative. 
VOL.  xvn.  —  40 


626  MINES  AND  MINERALS. 


Vo.  l$.~H611ida7  ▼.  Mayor,  &o.  of  Boroagh  of  Wakafiold,  1881,  A.  G.  85,  86. 

L.  R  5  Ex.  6.    The  judgments  of  the  Divisional  Court  and  of  Lord 
EsHER,  M.  B.,  state  the  reasons  for  the  appellants'  contention. 

Sir  H.  James,  Q.  C,  and  Meadows  White,  Q.  C.  (R  S.  Wright 
with  them),  for  the  respondents. 

Eigby,  Q.  C,  in  reply. 

The  House  took  time  for  consideration. 

Dec.  15, 1890.    Lord  Halsbury,  L.  C.  :  — 

My  Lords,  I  will  in  the  first  instance  read  the  judgment  of  my 
noble  and  learned  friend,  Lord  Bramwell,  who  is  unfortunately 
unable  to  be  present  to-day. 

[His  Lordship  then  read  the  judgment  of] 

Lord  Bramwell  :  — 

My  Lords,  I  am  of  opinion  that  "lands"  in  sect.  6  includes 
mines.  The  words  in  the  interpretation  clause  are  the  same  as 
in  the  Bailways  Clauses  and  the  Lands  Clauses  Acts.  Lord 
Cairns  in  Smith  v.  Great  Western  Railway  Company^  3 
[*  86]  App.  Cas.  180,  so  held.  *  I  do  not  understand  Cave,  J.,  to 
think  differently.  Unless  "mines"  are  included,  there  is 
no  power  to  take  them.  One  question  then  in  this  case  is,  whether 
the  appellants  are  entitled  to  judgment  by  virtue  of  sect.  6. 

Before  considering  that,  however,  I  think  it  desirable  to  ex- 
amine the  sections  specially  relating  to  mines.  It  is  suggested 
that  they  take  away  any  right  that  would  exist  under  sect.  6,  or 
show  that  none  exists  under  it,  and  give  no  right  themselves. 

I  do  not  think  they  take  away  any  right,  though  they  help  to 
show  that  none  exists  under  sect.  6.  They  are,  with  exceptions 
I  shall  notice,  the  same  as  in  the  Bailways  Clauses  Act  I  cannot 
see  why  compensation  should  be  delayed  in  railway  cases,  nor  in 
waterwork  cases.  If  a  present  damage,  there  ought  to  be  a 
present  compensation.  As  Mathew,  J.,  says,  waterwork  under- 
takers might  become  insolvent.  It  seems  to  me  that  if  the  law 
was  meant  to  be  otherwise  it  ought  to  have  been  expressed 
directly  in  plain  language,  and  not  left  to  be  inferred  by  impli- 
cation.    I  will  now  proceed  to  examine  those  clauses. 

They  are  introduced  by  the  words,  "  And  with  respect  to  mines 
be  it  enacted  as  follows."  The  provisions  are,  as  I  have  said, 
of  the  same  character  as  those  in  the  Bailways  Clauses  Act,  sects. 
77  to  85,  with  variations. 

The  difference  between  8  &  9  Vict.,  c.  20,  s.  81,  and  the  corres- 
ponding section,  10  &  11  Vict.,  c.  17,  s.  25,  is  that  the   latter 


B.  C.  VOL.  XVn.]      SECT.  UL  —  RAILWAY  AND  CANAL  COMPANIES.      627 
Vo.  It.— HoUiday  ▼.  Kajnr,  &o.  of  Bonmgli  of  Wakefield,  1881,  A.  G.  86,  87. 

includes  not  only  "  minerals  which  cfuinot  be  obtained  by  reason 
of  making  and  maintaining  the  works,"  but  also  those  which 
cannot  be  obtained  "by  reason  of  apprehended  injury  from  the 
working  thereof."  There  is  also  in  the  Waterworks  Act  sect.  27, 
on  which  I  shall  comment.  There  is  no  corresponding  section 
in  the  Eailways  Clauses  Act.  I  will  only  quote  10  &  11  Vict., 
c.  17,  those  in  the  Railways  Clauses  Act  being  the  same,  with  the 
exceptions  I  have  mentioned. 

Sect.  18  enacts  that  the  undertakers  shall  not  be  entitled  to 
mines  under  lands  purchased,  nor  shall  they  pass  by  a  con- 
veyance unless  expressly  mentioned.  Sect.  22  says  that  when 
within  the  prescribed  distance  the  mine  owner  shall  give  notice, 
and  if  the  undertakers  will  purchase,  the  mine  owner  shall  not 
work,  and  provides  for  compensation  to  him. 

*  Sect.  23  says  if  the  undertakers  will  not  purchase,  the   [*  87] 
mine  owner  may  work  so  that  no  wilful  damage  be  done, 
and  the  works  are  in  the  usual  way.    This  is  to  some  extent  for 
the  benefit  of  the  mine  owner. 

Sect.  24  says  if  the  working  of  the  mines  be  prevented  "by 
reason  of  apprehended  injury  to  such  works,"  the  mine  owner  may 
make  air-ways  and  other  conveniences.  This  also  is  to  some 
extent  for  the  benefit  of  the  mine  owner. 

Sect.  22  does  not  compel  the  undertakers  to  purchase,  nor  do 
sects.  23  and  24.  Neither  of  them  gives  the  mine  owner  a  right 
to  compel  purchase.  He  may,  indeed,  work  if  his  mines  are  not 
purchased,  but,  for  aught  that  I  can  see  in  these  sections,  at  the 
risk  of  letting  down  the  reservoir  and  of  being  flooded.  These 
sections  might  be  adequate  under  the  Railway  Act,  where  it  is 
difficult  to  suppose  any  possible  damage  to  the  mine  owner 
analogous  to  flooding.  They  may  have  been  thought  to  be  so 
in  the  Act  in  question.  It  may  be  that  sect.  27  of  the  Water- 
works Act  is  the  remedy.  There  is,  as  I  have  said,  no  section  of 
the  same  sort  in  the  Eailways  Clauses  Act.  That  section  says 
that  "nothing  in  the  Act  shall  prevent  the  imdertakers  being 
liable  to  any  action  to  which  they  would  have  been  liable  for 
any  damage  done  to  any  mines  by  means  of  the  waterworks  in 
case  the  same  had  not  been  constructed  or  maintained  by  virtue 
of  the  Act."  I  do  not  see  why  this  should  not  mean  what  it 
says,  viz.,  that  if  the  mine  owner  works  his  mine  and  is  flooded 
from  the  reservoir  he  may  maintain  his  action  for  the  damage, 


628  MINES   AND  MINERALS. 


Vo.  1$.  — HbUiday  ▼.  Mayor,  &e.  of  BoronglL  of  Wakefield,  1881,  A.  C.  87,  88. 

and  so  from  time  to  time  as  often  as  be  is  flooded.  His  mine  he 
cannot  get,  but  be  may  bave  rigbt  of  action.  Tbis  clause  may 
be  put  in  to  guard  against  tbe  arguments  tbat  prevailed  in  Bex 
V.  FeasCy  4  B.  &  Ad.  30,  and  Hammersmith  Railway  Company  v. 
Brandy  L.  R  4  H.  L.  171 ;  as  but  for  tbe  reasons  tbat  prevailed 
in  tbose  cases  it  would  be  law  witbout  an  enactment  {Rylands  v. 
Fletcher,  L.  R  3  H.  L.  330). 

So  far,  tbere  is  no  provision  in  tbese  clauses  compelling  the 
undertakers  to  take  or  pay  for  any  mine,  or  pay  any  compensa- 
tion to  tbe  mine  owner,  unless  they  stop  him  under  sect  22.  But 
there  remains  sect.  25  to  be  considered.  Tbat  says  that  the 
[*  88]  *  undertakers  shall  from  time  to  time  pay  to  the  owner,  &c. 
of  mines  extending  so  as  to  lie  on  both  sides  of  any  res- 
ervoirs, buildings,  pipes,  conduits,  or  other  works,  all  additional 
expenses  and  losses  incurred  by  such  owner  by  reason  of  the 
severance  of  tbe  lands  over  such  mines,  or  of  tbe  continuous 
working  thereof  being  interrupted,  or  by  reason  of  tbe  same  being 
worked  under  tbe  restrictions  of  tbis  or  the  special  Act,  and  for 
any  mines  not  purchased  by  the  undertakers  which  cannot  be 
obtained  by  reason  of  making  and  maintaining  such  works,  or  by 
reason  of  such  apprehended  injury  from  tbe  working  thereof  as 
aforesaid.  I  agree  with  Fry,  L.  J.,  tbat  this  is  apprehended  injury 
to  the  works  of  tbe  undertakers.  The  words  are  "such  appre- 
hended injury,"  to  be  settled  as  other  cases  of  disputed  compensa- 
tion. And  it  means  apprehended  by  tbe  undertakers,  and  tbat 
not  a  mere  alarm  in  their  minds,  but  one  on  which  they  bave 
acted  by  stopping  tbe  works  under  sect  22.  I  do  not  understand 
tbis  clause.  It  seems  to  me  to  provide  for  what  is  already  pro- 
vided for  by  sect.  22.  Tbis  at  least  is  certain,  tbat  it  gives  no 
rigbt  to  tbe  mine  owner  to  compel  tbe  taking  of,  and  paying  for, 
any  mine.  Nor  can  I  see  it  gives  any  right  of  compensation 
unless  the  mine  owner  is  stopped.  Also,  it  seems  to  me,  with 
submission,  clearly  to  be  limited  to  tbe  case  of  tbe  mine  or 
minerals  being  on  both  sides  of  tbe  works  or  some  of  them.  This 
section  then  gives  no  rigbt  to  the  mine  owner  to  compel  the 
taking  of,  or  compensation  for,  mines. 

It  seems  to  me,  then,  tbat  if  tbe  appellants  bave  any  rigbt  it 
must  be  under  sect.  6,  and  whether  they  have  depends  on  whether 
their  mines  are  "  injuriously  affected  by  the  construction  or  main- 
tenance of  the  works,  or  otherwise  by  tbe  execution  of  tbe  powers 


R.  C.  VOL.  XVIL]      sect.  HI.  —  RAILWAY  AND  CANAL  COMPANIES.      629 
Ho.  1$.  —  HoUidAy  ▼.  Xayor,  &o.  of  Bonragli  of  Wakefield,  1891,  A.  C.  $8,  88. 

conferred."  I  cannot  think  they  are.  I  agree  with  Fry,  L.  J.,  and 
his  reasoning.  They  are  not  at  present ;  nor  ought  they  to  be, 
nor  need  they  be,  in  future.  If,  when  they  reach  the  prescribed 
distance  to  the  respondents'  works,  the  appellants  give  the  notice 
they  are  bound  to  give,  the  respondents  must  purchase  such  mine 
as  is  necessary,  if  any ;  or,  if  they  do  not,  they  must  keep  their 
reservoir  from  leaking  or  they  will  be  liable  to  an  action.  Of 
course,  it  is  better  to  have  money  down  for  being  prevented 
working  than  to  be  prevented,  and  not  *  only  lose  the  mine  [*  89] 
but  be  put  to  expense.  But  I  should  think  that  on  reach- 
ing the  prescribed  distance,  if  there  was  real  danger  of  the  reser- 
voir being  let  down,  and  the  appellants  flooded  if  they  worked, 
proceedings  could  be  taken  to  restrain  the  respondents  from 
damaging  the  mines,  and  so  they  would  be  compelled  to  purchasa 
However  that  may  be,  they  are  not  now  injuriously  affected ;  not 
within  the  finding  of  the  award.  The  arbitrator  finds  that  a 
prudent  lessee  working  without  right  to  compensation  would  be 
compelled  by  reason  of  the  apprehension  of  injury  to  abstain  from 
working  or  getting  more  than  50  per  cent  of  the  cannel  coal 
But  this  is  just  what  the  appellants,  when  they  work,  or  want  to 
work,  the  cannel  coal,  will  not  be,  i.  e.,  without  a  right  to  com- 
pensation. The  respondents  will  have  to  stop  and  compensate 
them,  or,  if  not,  they  will  have  to  keep  the  reservoir  watertight 
or  pay  for  all  damage.  It  seems  to  me  that  the  claim  of  the 
appellants  takes  away  the  rights  of  the  respondents  to  say  which 
they  will  do.  I  cannot  say  that  the  appellants'  mines  are  in- 
juriously affected  by  the  respondents'  works  within  sect.  6.  I 
cannot  see  that  WTiiteJumse  v..  Wolverhampton  Railway  Company, 
L.  R  5  Ex.  6,  helps  the  appellants. 

I  am  of  opinion  the  judgment  should  be  af&rmed. 

[His  Lordship  then  read  his  own  judgment] 

Lord  Halsbury,  L.  C.  :  — 

My  Lords,  I  think  the  question  in  this  case  turns  upon  the 
true  construction  of  the  Waterworks  Clauses  Act,  1847,  and, 
before  dealing  with  the  particular  clauses  under  which  the  ques- 
tion in  this  case  arises,  it  is  material  to  notice  what  is  the  problem 
which  the  Legislature  had  to  solve  in  giving  compulsory  powers 
for  the  construction  of  waterworks,  and  the  contingencies  which 
were  likely  to  arise  in  the  maintenance  of  the  works  constructed. 

With  reference  to  some  public  works  of  a  different  character. 


630  MINES  AND  MINERALS. 


Ho.  I8.~Hollida7Y.  Mayor,  &«.  of  BonraglL  of  WakaflBld,  1881,  A.  C.  88,  90. 

such  as  railways  and  the  like,  two  principles  appear  to  have  been 
established  as  those  upon  which  legislation  should  be  founded: 
one,  that  the  works  when  so  established  should  not  be 
[*  90]  *  subject  to  be  impeached  in  a  Court  of  law  for  any  damage 
or  annoyance  they  might  cause  by  reason  of  their  ordinary 
use ;  and  as  a  correlative  of  this  principle,  that  any  person  whose 
land  would  be  injuriously  aflfected  by  the  construction  of  the 
works  should,  in  lieu  of  his  right  of  action,  be  entitled  to  com- 
pensation,—  a  compensation  which  must,  except  where  otherwise 
specially  provided,  be  assessed  once  and  for  ever,  and  not  subject 
to  increase  or  diminution  after  that  one  assessment. 

The  Legislature,  having  before  its  mind  the  peculiarity  of  water- 
works, departed,  in  the  statute  under  construction,  from  both 
these  principles.  Compensation  in  the  form  of  damages  might 
still  be  claimed  against  a  waterworks  company,  notwithstanding 
that  they  were  constructed  and  maintained  by  virtue  of  an  Act 
of  Parliament,  and  compensation,  as  such,  might  be  made  from 
time  to  time  and  not  be  assessed  once  and  for  all. 

It  is  not  difficult  to  see  what  was  in  the  mind  of  the  Legis- 
lature when  dealing  with  such  a  subject-matter  as  the  establish- 
ment of  large  reservoirs  of  water  in  relation  to  underground 
workings  by  persons,  other  than  the  undertakers  of  the  water- 
works, in  winning  mines  and  minerals  which  primd  facie  were 
not  to  belong  to  the  undertakers  of  the  waterworks.  The  under- 
takers and  the  mine  owner  have  a  common  interest  in  the 
security  of  the  reservoir — the  one  to  preserve  the  water  which 
the  reservoir  was  intended  to  retain,  the  other  to  keep  the  power 
of  working  out  the  minerals  which  the  leaking  of  the  reservoir 
would  prevent  them  from  winning  by  the  drowning  of  the  mine. 

But,  except  so  far  as  it  should  be  necessary  to  preserve  both 
these  rights  for  those  respectively  interested  in  them,  the  Legis- 
lature appears  to  have  thought  that  it  was  expedient  that  both 
mine  owner  and  waterworks  undertaker  should  be  left  free  to 
pursue  their  respective  industries  without  interference.  It  is 
the  interest  of  the  mine  owner  to  be  allowed  to  retain  his  mine ; 
it  is  the  interest  of  the  waterworks  undertaker  not  to  be  called 
upon  to  pay  more  for  land  than  was  necessary  for  the  purpose  of 
his  undertaking. 

Accordingly,  while  the  6th  section  of  the  Waterworks  Clauses 
Act,  which  in  terms  refers  to  the  construction   of  the   works. 


R.  C.  VOL.  XVIL]      sect.  III.  —  RAILWAY  AND  CANAL  COMPANIES.      631 
Ho.  18.  —  HoUidAy  ▼.  Xayor,  &o.  of  Bonrngh  of  Waksfield,  1891,  A.  C.  91,  92. 

*  enables  the  undertakers,  if  they  please  to  pay  for  it,  to  [*  91] 
take  all  land  including  mines  for  the  construction  of  their 
works  (and  I  cannot  doubt  that  in  that  section  the  word  **  lands  " 
does  include  mines  and  minerals),  yet  by  the  18th  section  of  the 
Act  and  the  sections  which  follow  it,  the  relations  between  the 
owners  of  the  waterworks  and  the  mines  are,  I  think,  intended  to 
be  exhaustively  regulated,  and  I  agree  with  the  Master  of  the 
EoLLS,  if  not  altogether  for  the  same  reason,  that  compensation, 
if  it  can  be  given  at  all,  must  be  sought  for  under  the  code 
specially  relating  to  mines  in  the  statute. 

Now  it  is  provided  that  the  mine-owner  shall  not  get  his  min* 
erals  within  the  prescribed  distance  of  the  waterworks  without 
giving  due  notice  to  the  undertakers,  obviously  to  aflford  the  under- 
takers the  opportunity  to  purchase  if  they  will,  and  so  prevent  any 
working  beyond  the  prescribed  distance.  The  Act  itself  prescribes 
a  distance  if  no  distance  is  prescribed  by  the  special  Act ;  but  it 
contemplates  the  possibility  of  the  undertakers  being  familiar  with 
the  works  they  are  about  to  execute,  and  procuring  a  different 
prescribed  distance  from  that  which  the  Act  itself  enacts  in  the 
absence  of  any  special  prescribed  distance. 

Now  this  being  so  far  the  scheme  of  legislation,  let  us  see  what 
are  the  facts  on  which  the  question  in  debate  arises.  This  depends 
on  the  13th  paragraph  of  the  finding  of  the  arbitrator,  which  is  as 
follows:  "(13)  The  workings  of  the  claimants  have  not  as  yet 
approached  the  reservoir  in  such  a  manner  as  to  cause  any  present 
risk  to  the  claimants*  mines  or  seams  from  the  existence  of  the 
reservoir,  assuming  it  to  be  filled  with  water.  If  the  claimants 
were  free  to  work  their  mines  or  seams  without  risk  of  interruption 
from  the  works  of  the  corporation,  they  could  and  would  have  got 
the  whole  of  the  Middleton  and  Cannel  coal  under  the  reservoir 
and  within  forty  yards  of  its  boundary  within  the  respective  terms 
of  their  leases.  Assuming  the  corporation  to  purchase  and  retain 
in  situ  the  35a.  3r.  and  24p.  of  the  Middleton  seam  for  which 
they  have  given  notice,  and  no  other  coal  in  that  or  any  other 
seam,  the  claimants,  by  reason  of  the  corporation  works  and  of 
apprehension  of  injury  therefrom  to  the  Cannel  seam,  could 
not  work  or  get  more  than  *50  per  cent  of  the  cannel  [*92] 
and  black  coal  under  the  reservoir  or  within  twenty  yards 
of  its  boundary  (being  the  area  edged  orange  on  the  annexed  plan), 
and  I  find  that  a  prudent  lessee  working  without  right  to  compen- 


632  MINES  AND  MINERALS. 


Ho.  1$.  — HoDiday  ▼.  Xayor,  &e.  itf  Borwigli  of  WakaflBld,  1881,  A.  C.  98,  98. 

sation  would  be  compelled  by  reason  of  such  apprehension  of 
injury  to  abstain  from  working  or  getting  more  than  50  per  cent 
of  the  cannel  and  black  coal  in  their  such  last-named  area." 

Now  I  think  that,  in  order  to  bring  the  mine  owner  in  this  case 
within  sect.  25  of  the  statute,  the  continuous  working  of  the  mines 
or  minerals  must  have  been  "interrupted  as  aforesaid,"  that  is 
manifestly  under  sect.  22 ;  "  or  by  reason  of  such  apprehended  in- 
jury from  the  working  thereof  as  aforesaid."  Sects.  23  and  26,  giv- 
ing power  respectively  to  the  owner  to  work  his  mines  and  to  the 
undertakers  to  inspect  the  working  of  the  mines  after  giving  twenty- 
four  hours*  notice,  show,  I  think,  the  complete  scheme  of  the  Act, 
supplemented  perhaps  by  26  &  27  Vict.,  c.  93,  ss.  3  to  10  inclusive. 

I  am  not  certain  that  the  Act  I  have  just  referred  to  does  not 
suggest  that  the  Legislature  had  thought  from  the  experience  of 
facts  that  the  undertakers  of  water  companies  were  not  sufficiently 
under  supervision  in  respect  of  the  security  which  other  people 
were  entitled  to,  and  accordingly  framed  an  additional  code  by 
which  danger  to  other  people  might  be  averted  and  such  under- 
takers compelled  to  look  to  the  safe  condition  of  their  reservoirs. 
But  dealing  with  the  matter  as  it  was  left  under  the  Act  of  1847, 
each  case  of  difficulty  and  interference  with  their  respective  rights 
appears  to  have  been  provided  for,  or  intended  to  be  provided  for, 
by  the  sections  now  under  construction. 

Now,  with  one  exception,  namely,  the  apprehended  injury 
(which  it  appears  to  me  to  be  impossible  to  contend  is  not  the 
same  apprehended  injury  throughout  sects.  22,  24,  and  25),  the 
language  of  sect.  25  is  copied  almost  totidem  verbis  from  sect.  81  of 
the  Eailways  Clauses  Act,  where  no  such  reciprocal  danger  on  the 
part  of  the  mine  owner  could  have  arisen. 

I  cannot  therefore  find  on  the  facts  as  set  forth  in  the  award 
any  danger  which  those  sections  contemplated  as  the  subject 
of  compensation. 

There  is,  as  I  have  before  remarked,  all  the  difference 
[*  93]  between  *  the  principles  upon  which  compensation  ought 
in  general  to  be  assessed.  These  are  lucidly  set  forth  by 
Lord  Wensleydalb  in  the  Caledonian  Railway  Company  v. 
Zockhart,  3  Macq.  808,  825 ;  but  as  the  noble  and  learned  Lord 
pointed  out,  those  principles  "  do  not  apply  where,  by  the  express 
terms  of  the  special  Acts,  compensation  for  damages  from  time  to 
time  sustained  is  payable." 


B.  c.  vol*  xvn.]     SECT.  m.  —  railway  and  canal  companies.    633 

Ho.  18.  —  Hollidfty  ▼.  Xayor,  &e.  of  Bonragli  of  Waksfield,  1881,  A.  0. 89,  84. 

I  have  not  been  able  to  see  any  answer  to  the  analysis  by  Fry,  L. 
J.,  of  the  provisions  of  sect.  25,  and  with  a  single  exception  as  to 
the  apprehended  injury  (with  which  I  have  already  dealt  and 
which  is  peculiar  to  the  Waterworks  Act),  the  construction  put 
upon  the  equivalent  section  in  Whitehouse  v.  Wolverhampton  Bail- 
toay  Company,  L.  R  5  Ex.  6,  seems  to  me  to  be  by  no  means  favour- 
able to  the  argument  for  the  appellants  here.  Kelly,  C.  B.,  in  that 
case  said :  "  We  must  take  it,  therefore,  that  the  mines  were,  at  the 
time  of  the  award,  actually  being  worked  to  a  point  where  they 
were  intercepted  by  the  defendants'  line.  This,  then,  is  a  case 
where  the  railway  company  have  stopped  the  mine  and  rendered 
it  necessary  for  the  plaintiffs  to  sink  a  new  pit  in  order  to  work 
the  north  side,  and  we  must  conclude  that  the  expense  of  sinking 
it  was  about  to  be  incurred,  and  was  within  the  words  of  sect.  81, 
as  being  an  additional  expense  or  loss  which  would  be  incurred  by 
the  mine  owner  by  reason  of  the  severance  of  the  lands."  I  think 
the  facts  as  they  are  assumed  for  the  purpose  of  the  judgment 
furnish  a  very  good  example  of  the  interruption  to  the  working  of 
the  mines  which  the  statute  intended  to  provide  for. 

On  the  whole,  I  am  unable  to  concur  with  the  Master  of  the 
Rolls  and  the  two  learned  Judges  of  the  Queen's  Bench  Division 
in  the  view  that  any  present  injury  now  exists  in  respect  of  which 
the  compensation  claimed  is  due.  The  mine  owner  has  not  been 
stopped  under  the  powers  of  the  Act.  No  compensation,  I  think, 
for  injuriously  affecting  can  at  any  time  be  demanded  under  the 
6th  section,  since  I  think  all  rights  of  compensation  are  exhaust- 
ively dealt  with  under  the  mining  sections ;  and  I  think  all  sense 
of  injustice  to  the  mine  owner  is  relieved  when  one  considers  that  the 
decision  is  not  one  which  finally  determines  the  relations 
between  the  mine  owners  and  the  undertakers.  *When  [*94] 
the  mine  owner  does  work,  when  an  interference  with  the 
mining  operations  is  actually  made,  then  I  think  he  will  be  entitled 
to  litigate  that  question  and  claim  compensation ;  but  until  that 
contingency  arises  —  and  I  think  it  has  not  yet  arisen  —  he  has  no 
claim. 

I  think  the  arbitrator  has  very  tersely  and  accurately  stated  the 
question.  "(1)  Whether  by  virtue  of  the  Waterworks  Clauses 
Act,  or  of  the  Lands  Clauses  Act,  or  otherwise,  the  claimants  are 
entitled  upon  this  arbitration  to  claim  and  to  recover  compensation 
for  the  prospective  prevention  of  the  working  of  more  than  50  per 


634  MINES  AND  MINERALS. 

Vo.  18.  —  HbUiday  ▼.  Mayor,  &e.  of  Bonragli  of  Wakefield,  1881,  A.  C.  94,  85. 

cent  of  the  cannel  and  black  coal  within  the  area  edged  orange  on 
the  annexed  plan." 

It  will  be  observed  it  is  not  present  prevention  from  apprehen- 
sion of  prospective  damage,  but  prospective  prevention.  This  is  a 
thing  for  which  I  think  the  Act  makes  no  provision,  for  reasons 
which  I  have  already  suggested  and  upon  which  I  think  it 
unnecessary  to  enlarge. 

Under  these  circumstances,  I  am  of  opinion  that  the  judgment 
of  the  Court  of  Appeal  ought  to  be  afiSrmed  and  this  appeal 
dismissed  with  costs. 

Lord  Watson:  — 

My  Lords,  this  case  involves  a  question  of  some  nicety,  arising 
upon  the  construction  of  the  6th  and  mines  clauses  of  the  Water- 
works Clauses  Act  of  1847. 

The  appellants  are  tenants  of  a  mineral  field  containing  four 
seams  of  coal,  under  two  leases,  each  for  a  term  of  forty  years,  the 
one  commencing  from  the  1st  of  August,  1872,  and  the  other  from 
the  2nd  of  February,  1873.  They  are  under  obligation  to  work 
out  the  whole  of  these  seams  during  the  currency  of  the  leases, 
failing  which,  to  pay  rent  or  lordship  in  respect  of  the  coal  left 
unworked.  Such  portions  of  the  surface  as  they  may  find  it  con- 
venient to  occupy  for  sinking  pits,  erecting  miners'  houses,  making 
roads  and  railways,  and  other  mining  purposes,  are  demised  to 
them  during  the  respective  periods  of  their  leases. 

The  respondents  having  in  the  year  1880  obtained  a  special  Act 
for  supplying  water  to  the  borough  of  Wakefield,  acquired 
[*  95]  *  from  the  owners  fifty-eight  acres  of  land  within  the  limits 
of  the  appellants'  mineral  leases,  for  the  purpose  of  con- 
structing a  reservoir.  On  the  19th  of  June,  1883,  the  appellants 
gave  notice  of  their  intention  to  commence  working  out  all  four 
seams  of  coal  below  and  around  the  site  of  the  reservoir.  The 
respondents,  at  the  same  date,  served  a  counter  notice  requiring  the 
appellants  to  repeat  the  notice  of  their  intention  to  work,  when 
they  had  in  course  of  working  the  seams  reached  the  •limit  pre- 
scribed by  sect.  22  of  the  Act  of  1847.  On  the  1st  of  November, 
1883,  the  respondents  gave  notice  in  terms  of  the  Lands  Clauses 
Act,  to  treat  for  the  purchase  of  (1)  35a.  3r.  24p.  of  the  Middleton 
Deep  Main,  which  is  the  lowest  of  the  four  seams,  and  (2)  all  the 
appellants'  right  and  interest,  as  mineral  tenants,  in  the  surface 
of  the  fifty-eight  acres  already  acquired  from  the  owners.     The 


K.  C.  VOL.  XVIL]       sect.  IU.  —  RAILWAY  AND  CANAL  COMPANIES.      635 
Vo.  1$. — Holliday  ▼.  Xayor,  &e.  of  Bonrngh  of  Wakefldd,  1891,  A.  G.  96,  96. 

statutory  arbitration  which  followed  devolved  upon  the  umpire, 
who  issued  his  final  award  in  the  shape  of  a  special  case  for  the 
opinion  of  the  Court. 

The  award  fixes  the  compensation  due  to  the  appellants  in 
respect  of  the  surface  interests  and  minerals  actually  taken  from 
them  at  £8287;  and  as  to  that  sum  no  question  has  ever  been 
raised.  At  the  date  of  the  notice  to  treat,  the  appellants  were 
making  preparations  to  sink  a  pit,  on  a  convenient  site  within  the 
fifty-eight  acres,  for  the  purpose  of  working  the  two  upper  seams 
of  coal ;  and  the  arbiter  has  found  that  the  increased  cost  of  sink- 
ing a  shaft  in  a  suitable  place  outside  that  area  will  be  £150. 
The  respondents  do  not  now  dispute  that  the  appellants  are  en- 
titled to  present  payment  of  that  sum  also.  The  argument 
addressed  to  us  was  confined  to  the  third  finding,  which  relates  to 
the  injurious  effect  which  the  construction  of  the  statutory  works 
contemplated  by  the  respondents  may  have  upon  the  future  work- 
ing of  the  seams  of  coal  which  were  not  included  in  the  notice, 
and  no  part  of  which  has  been  acquired  by  the  respondents. 

In  dealing  with  this  last  claim,  the  arbiter  has  of  course  as- 
sumed that  the  thirty-five  acres  of  the  Middleton  Main  Seam, 
which  the  respondents  have  taken,  will  remain  in  situ,  for  the 
purpose  of  giving  subjacent  support  to  the  reservoir.  On  that 
assumption,  he  has  found  that  the  appellants  will  be  unable 
to  work  out  *  more  than  50  per  cent  of  the  Cannel  seam,  [*  96] 
which  is  the  seam  nearest  to  the  surface,  with  safety  to 
their  mines ;  and  that  a  prudent  lessee  working  without  right  to 
compensation,  would  not  work  or  get  more  than  that  proportion  of 
the  coal  below  or  within  twenty  yards  of  the  reservoir.  He  has 
further  found,  that,  if  such  proportion  of  the  upper  seam  be  left 
undisturbed,  the  working  of  the  three  lower  seams  will  not  be 
injuriously  affected  by  the  construction  of  the  appellant's  water- 
works ;  and  has  assessed  the  compensation  due,  upon  that  footing, 
at  £4777.  At  the  date  of  the  award,  the  three  lower  seams  had 
been  partly  worked  by  the  respondents ;  but  they  had  not  begun 
to  work  the  Cannel  seam. 

The  6th  section  of  the  Waterworks  Clauses  Act,  which  incor- 
porates the  provisions  of  the  Lands  Clauses  Act,  empowers  the 
undertakers  to  use  these  provisions  for  the  purpose  of  taking 
compulsorily  such  interest  in  "lands  and  streams"  as  they  are 
authorised  to  acquire  by  their  special  Act,  upon  the  condition  of 


636  MIKES  AND  MINERALS. 


Vo.  18.  —  HoDiday  ▼.  Major,  &e.  of  Boraagh  of  Wakefield,  1881,  A.  0.  96,  97. 

their  making  full  compensation  to  owners  and  occupiers,  and 
other  parties  interested  in  the  lands  or  streams  taken  or  used,  or 
injuriously  afTected  by  the  construction  or  maintenance  of  the 
authorised  works.  Sects.  18  to  27  inclusive  apply  to  "mines," 
and,  with  the  notable  exception  of  sect.  27,  their  provisions  are 
strictly  analogous  to,  if  not  identical  with,  those  of  the  correspond- 
ing clauses  in  the  general  Bailways  Clauses  Acts  of  1845. 

It  was  argued  for  the  appellants  that,  inasmuch  as  the  respond- 
ents have  taken  by  compulsion  not  only  their  interest  in  the 
surface,  but  a  portion  of  one  of  their  coal  seams,  under  the  powers 
of  sect.  6,  the  conditions  of  that  clause  must  be  followed  out,  and 
aU  their  claims  for  injurious  afifection  of  the  seams  not  taken  settled 
now.  Alternatively,  it  was  maintained  that  their  right  to  compen- 
sation for  prospective  injury  to  their  mineral  workings,  from  the 
construction  and  maintenance  of  the  reservoir,  has  already  emerged, 
under  the  mines  clauses  of  the  statute.  On  the  other  hand,  it 
was  contended  for  the  respondents  that  compensation  in  respect  of 
unworked  minerals,  not  taken  under  sect.  6,  is  exclusively  regu- 
lated by  the  mines  clauses,  and  that  no  claim  arises  to 
[*97]  the  mineral  tenant,  under  these  clauses,  until,  *in  the 
ordinary  course  of  mining,  his  workings  have  approached 
the  reservoir  and  have  reached  the  prescribed  limit. 

In  the  Divisional  Court,  Mathew,  J.,  and  Cave,  J.,  gave  judg- 
ment for  the  appellants.  They  dealt  with  the  claim  as  one  falling 
under  the  mines  clauses,  and  held  that  it  was  made  competent  by 
the  provisions  of  sect.  25,  being  of  opinion,  on  the  authority  of 
Whitehouse  v.  Wolverhampton  Railway  Company,  L.  R  5  Ex.  6, 
that  the  damage,  though  prospective,  was  ascertainable  with 
reasonable  certainty,  and  might  therefore  be  claimed  now.  In 
the  Court  of  Appeal,  Lord  Esher,  M.  R,  agreed  with  these  learned 
Judges  both  in  their  reasoning  and  their  conclusion;  bat  the 
majority  of  the  Court,  consisting  of  Fry  and  Lopes,  L.  JJ.,  reversed 
their  order,  on  the  ground  that  no  claim  in  respect  of  minerals 
which,  at  some  future  time,  it  might  be  necessary  to  leave  un- 
worked, was  competent  before  the  seam  was  actually  worked  and 
the  workings  had  reached  the  statutory  limit. 

In  the  course  of  the  argument  the  question  was  mooted  whether 
the  word  "  lands,"  as  it  occurs  in  sect  6  of  the  Waterworks  Act, 
includes  minerals.  I  think  it  is  clear  that  the  word  is  there  used 
in  its  widest  sense,  and  that  the  undertakers  have  the  power  to 


B.  C.  VOL.  XVII.]       SECT.  III.  —  RAILWAY  AND  CANAL  COMPANIES.      637 
Vo.  It.  —  HdUiday  ▼.  Xayor,  &o.  of  Bonra^  of  Wakefield,  1881,  A.  0.  87,  98. 

acquire  subjacent  minerals  as  well  as  surface,  when  their  acquisi- 
tion is  necessary  for  the  support  of  the  authorised  works.  The 
point  appears  to  me  to  be  placed  beyond  doubt  by  the  observations 
of  the  Lord  Chancellor  (Earl  Cairns)  in  Smith  v.  Great  Western 
Railway  Company,  3  App.  Cas.  180.  Although  it  authorises 
waterworks  undertakers  to  acquire  minerals  when  necessary,  I  do 
not  think  the  Legislature,  by  sect.  6,  intended  to  enact  that  com- 
pensation in  respect  of  other  minerals,  which  at  some  future 
time  it  may  be  found  necessary  to  leave  unworked,  should  be 
immediately  ascertained  and  paid.  The  mines  clauses  are,  in  my 
opinion,  equivalent  to  an  exception  (even  in  cases  where  minerals 
are  taken)  from  the  provisions  of  sect.  6,  with  respect  to  compen- 
sation. These  clauses  are  framed  in  general  terms,  and  appear  to 
me  to  be  applicable  to  the  case  of  all  minerals,  save  those  which 
are  expressly  purchased  and  conveyed  to  the  undertakers.  There 
may,  however,  be  injury  to  works  connected  with  mining  opera- 
tions, so  directly  and  immediately  occasioned  by  the  taking 
of  *the  surface,  or  of  interests  in  the  surface,  that  the  [*98] 
mine  owner  will  be  entitled  to  have  compensation  made  to 
him,  at  the  same  time  when  the  value  of  his  interest  in  the  sur- 
face is  ascertained.  Of  that  class  of  injuries,  the  claim  of  the 
appellants  in  this  case,  in  respect  of  loss  arising  from  their  being 
compelled  to  sink  a  pit  outside  of  the  fifty-eight  acres,  affords  an 
apt  illustration.  But  the  only  claim  with  which  we  have  to  deal 
is  for  the  value  of  coal  forming  part  of  a  seam  which  the  appel- 
lants have  not  begun  to  work,  which  the  arbiter  has  found  that 
they  will,  after  they  begin  working,  be  unable  to  remove  along 
with  the  rest  of  the  seam  without  endangering  not  only  the  reser- 
voir, but  their  own  mines. 

Whitehouse  v.  Wolverhampton  Railway  Company ,  L.  R  5  Ex.  6, 
relied  on  by  the  learned  Judges  of  the  Divisional  Court,  does  not 
appear  to  me  to  support  the  inferences  which  they  derived  from 
it  All  the  claims  sustained  by  the  Court  of  Exchequer  were  of 
the  same  nature  as  the  claim  made  by  the  appellants  in  conse- 
quence of  their  being  -compelled  to  alter  the  site  of  the  pit  they 
were  about  to  sink.  In  that  case  the  mine  owner  was  in  course  of 
working  a  continuous  seam  of  coal,  when  the  railway  company 
took  a  narrow  strip  of  surface  which  intersected  his  mineral  field. 
His  workings  had  been  confined  to  the  south  side  of  the  strip,  but 
were  rapidly  approaching  the  north  side;  and  he  was  about  to 


638  MINES   AND    MINERALS. 

Va  18.  ^HoUiday  ▼.  Xayor,  ice  of  Bonragli  of  Wakefield,  1881,  A.  C.  98,  98. 

sink  two  additional  pits  in  order  to  get  the  coal  on  the  north. 
The  intended  site  of  one  of  these  pits  was  in  the  centre  of  the 
railway  strip,  and  had  been  selected  because  it  could  be  worked 
by  the  engine  of  an  existing  pit  on  the  south;  and  the  mine  owner 
had  already  acquired  the  right  to  lay  spoil  on  an  area  beside  the 
site.  In  consequence  of  the  site  being  taken  by  the  railway  com- 
pany, he  was  under  the  necessity  of  sinking  the  pit  in  a  position 
from  which  it  could  not  be  worked  by  the  engine  of  the  old  pit> 
and  of  acquiring  other  land  for  the  deposit  of  the  spoil;  and  in 
these  circumstances,  he  claimed  and  was  allowed  (1)  the  expense 
of  engine  and  plant  for  the  new  pit;  (2)  the  extra  expense  of 
working  the  engine ;  (3)  the  expense  occasioned  by  change  of  site ; 

(4)  extra  expense  of  raising  pit  frames  and  depositing  spoil ; 
[*  99]  and  (5)  the  cost  of  providing  new  land  for  spoil.     *  These 

were  the  only  items  in  dispute,  no  claim  being  made  in 
respect  of  minerals  to  be  left  unworked. 

Had  the  present  claim  been  preferred  by  the  appellants  against 
a  railway  company,  under  the  provisions  of  the  Eailways  Clauses 
Act,  I  see  no  reason  to  doubt  that  it  would  have  been  held  to  be 
premature.  The  diflSculties  which  beset  the  case  appear  to  me  to 
be  wholly  due  to  the  particular  use  which  the  respondents  are 
authorised  to  make  of  the  surface  which  they  have  acquired.  In 
the  case  of  a  railway,  the  working  of  the  subjacent  minerals  is 
frequently  attended  with  certain  danger  to  the  line,  but  seldom,  if 
ever,  involves  peril  to  the  mine.  When  the  overlying  surface  is 
occupied  by  a  large  reservoir  of  water,  the  results  are  very  differ- 
ent. Injury  to  the  reservoir,  from  the  working  of  mineral  seams 
below  or  near  it,  me^ns  the  risk  or  certainty  of  flooding  the  mine ; 
and  the  owners  of  the  mine,  and  the  undertakers  interested  in 
maintaining  the  reservoir,  have  a  common  interest  to  secure  the 
safety  of  both.  The  mines  sections  of  the  Eailways  Clauses  Act 
were  apparently  framed  with  the  view  of  enabling  railway  com- 
panies to  protect  their  lines  from  the  destructive  effects  of 
subsidence  of  the  surface,  by  giving  them  the  opportunity  of 
putting  a  stop,  in  whole  or  in  part,  to  the  working  of  subjacent 
seams  of  mineral,  upon  payment  of  compensation. 

I  come  now  to  the  mines  clauses  of  the  Act  of  1847,  upon  the 
true  construction  of  which  the  asserted  right  of  the  appellants  to 
present  compensation  appears  to  me  to  depend.  It  is  not  necessary, 
and  it  is  not  my  intention,  to  express  any  opinion  upon  the  effect  of 


B.  C.  VOL.  XVn.]       SECT.  IH.  —  RAILWAY  AND  CANAL  COMPANIES.      639 

Vo.  18. — Holliday  ▼.  Xayor,  &e.  of  Bonragli  of  Wakeflold,  1891,  A.  C.  99,  100. 

these  clauses,  except  in  so  far  as  they  bear  upon  the  time  at  which 
a  claim  of  compensation  for  minerals,  which  it  may  become  neces- 
sary to  leave  un worked,  for  the  protection  either  of  the  reservoir 
or  of  the  mine,  can  be  competently  made.  Because,  after  all,  the 
question  between  the  parties  is  one  of  time.  The  respondents  do 
not  dispute  that  they  must  ultimately  compensate  the  appellants 
for  all  injuries  occasioned  to  their  mines  by  the  construction  and 
maintenance  of  the  reservoir ;  but  they  object  that  no  such  injury 
as  that  for  which  compensation  is  sought  has  yet  arisen,  within  the 
meaning  of  the  statute. 

Sects.  22  and  23,  which  are  expressed,  mutatis  mutandis,  in  the 
same  terms  with  sects.  78  and  79  of  the  English  Eailways 
*  Clauses  Act,  make  it  incumbent  on  the  mine  owner  to  [*  100] 
give  thirty  days'  notice  of  his  intention  to  work  minerals 
below,  or  within  forty  yards'  distance  of,  the  reservoir.  If  the 
undertakers  have  not  within  that  period,  or  at  any  time  before  the 
minerals  are  actually  taken  out,^  signified  their  desire  that  the 
minerals,  some  or  all  of  them,  shall  be  left  in  situ,  and  their  will- 
ingness to  make  due  compensation,  he  may  proceed  to  work  them. 
The  provisions  of  sect.  26,  which  enable  the  undertakers  to  inspect 
the  workings  for  the  purpose  of  discovering  the  distance  which 
they  have  reached,  and  their  probable  effect  upon  the  stability  of 
their  reservoirs  or  other  works,  indicate  the  intention  of  the  Legis- 
lature that,  in  cases  where  the  subjacent  minerals  are  part  of  an 
extensive  seam,  the  undertakers  shall  not  be  called  upon  to  elect 
between  retaining  the  minerals  and  permitting  them  to  be  worked 
until  an  inspection  of  that  kind  has  become  possible.  I  am, 
therefore,  of  opinion  that  the  appellants  are  not  in  a  position  to 
prefer  a  claim  for  compensation  under  these  clauses. 

The  enactments  of  sect  25,  so  far  as  they  bear  upon  the  ques- 
tion before  us,  are  to  the  effect  that  the  undertakers  shall,  "  from 
time  to  time,"  pay  compensation  to  the  owner,  lessee,  or  occupier  of 
the  mine  "  for  any  mines  or  minerals  not  purchased  by  the  under- 
takers which  cannot  be  obtained  by  reason  of  making  and  main- 
taining the  said  works,  or  by  reason  of  such  apprehended  injury 
from  the  working  thereof  as  aforesaid."  These  enactments  are, 
in  my  opinion,  adverse  to  the  argument  of  the  appellants.  They 
refer  back  to  the  clauses  already  noticed,  for  ascertainment  of  the 
unworked  minerals  in  respect  of  which  compensation  is  to  be  paid ; 

1  See  Dixon  t.  Caledonian,  ^c.  Railway  Companies  (5  App.  Cas.  820). 


640  MmES  AND  MINERALS. 

Ho.  18.  — HoUidA7  ▼.  Kayor,  &0.  of  Boroiigli  of  Wakeflald,  1891,  A.  C.  100,  101. 

and  the  provision  that  payment  shall  be  from  time  to  time  in- 
dicates, not  that  the  whole  claim  of  the  mine  owner  is  to  be  ascer- 
tained and  paid  upon  an  estimate  formed  before  working  has  begun, 
but  that  compensation  is  to  be  made  as  often  as,  in  the  course  of 
working,  and  after  there  has  been  an  opportunity  of  examining  the 
workings,  the  undertakers  notify  their  desire  that  minerals  shall  be 
left  un  worked. 

Sect.  27  has  no  parallel  in  the  Eailways  Clauses  Acts;   and 

was  obviously  intended  by  the  Legislature  to  afford  the 
[*  101]  mine  *  owner    protection    against    a    reservoir  or  other 

waterwork,  which  he  does  not  require  in  the  case  of  a 
railway  line.  It  enacts  that  "nothing  in  this  or  in  the  special 
Act  shall  prevent  the  undertakers  from  being  Uable  to  any  action 
or  other  legal  proceeding  to  which  they  would  have  been  liable  for 
any  damage  or  injury  done  or  occasioned  to  any  mines  by  means 
or  in  consequence  of  the  waterworks,  in  case  the  same  had  not 
been  constructed  or  maintained  by  virtue  of  this  or  the  special  Act.". 
I  do  not  think  that  sect.  27  was  meant  to  supersede  the  other 
clauses  of  the  Act,  in  cases  where  a  full  remedy  is  provided  by 
these  clauses ;  but  I  am  of  opinion  that  it  was  intended,  and  is 
sufl&cient,  to  cover  every  case  of  injury  to  mineral  workings,  in 
which  the  mine  owner  would  otherwise  have  been  deprived  of  a 
legal  remedy.  In  such  a  case,  the  undertakers  cannot  set  up  the 
plea  that  their  works  were  constructed  under  statutory  authority. 
The  case  of  a  mine  owner  who,  at  a  distance  of  fifty  yards  from  a 
reservoir,  finds  that  he  cannot  push-  his  workings  farther  in  its 
direction,  without  serious  risk  of  discharging  its  contents  into  his 
mine,  is  not,  in  my  opinion,  within  sects.  22  and  25,  but  is  certainly 
within  the  provisions  of  sect.  27.  Injury  is  done  to  the  mine  by  the 
reservoir  whenever,  in  due  course  of  working,  the  minerals  or  part 
of  them  become  either  unworkable  to  profit,  or  altogether  unwork- 
able, by  reason  of  the  flooding  which  must  accompany  the  working. 
"Whenever  that  state  of  matters  occurs,  the  mine  owner  may,  in  my 
opinion,  bring  his  action  for  removal  of  the  nuisance,  with  the 
alternative  of  pecuniary  damages,  if  the  undertakers  prefer  not  to 
remove  it.  The  Act  of  1847  is  an  imperial  one,  and  as  the  remedy 
would  be  open  to  a  Scotch  mine  owner  in  these  circumstances,  I 
can  see  no  reason  why  it  should  be  denied  to  an  English  mine 
owner.  But  there  is  no  present  injury  to  the  appellants'  mines ; 
and  it  appears  to  me  that  they  have  no  cause  of  action  under  sect 


K.  a  VOL.  XVII.]       SECT.  IIL  —  RAILWAY  AND  CANAL  COMPANIES.      641 

■     ■■      ■  ■  »         «    — ■■  I  ■■> 

He.  18.^HdllidA7  ▼.  Kayor,  &e.  of  Boroiigli  of  Wateflald,  1891,  A.  C.  101, 10ft. 

..^ -• 

27,  until  there  is  actual  injury,  in  the  sense  which  I  have  suggested 
It  is  manifest  that  if  compensation  were  given  under  that  clause 
to  mine  owners  whose  workings  and  whose  damage  are  prospective 
merely,  in  many  cases,  nay,  in  the  present  case,  the  cause  of 
damage  might  be  partly  or  wholly  removed  before  there  was  actual 
injury. 

*  For  these  reasons,  I  am  of  opinion  that  the  order  [•  102] 
appealed  from  ought  to  be  afi^med. 

Lord  Herschell  (after  stating  the  facts  as  given  above,  pro- 
ceeded as  follows):  — 

The  question  thus  raised  is,  to  my  mind,  one  of  very  consider- 
able difficulty ;  and  it  is  not  without  much  consideration  that  I 
have  arrived  at  the  conclusion  which  I  am  about  to  state  to  your 
Lordships. 

I  do  not  feel  the  same  difficulty  as  was  expressed  by  the  Court 
below  in  holding  that  the  word  "  lands  '*  in  sect  6  of  the  Water- 
Works  Clauses  Act,  1847,  includes  "  mines."  By  the  definition 
clause  (3),  the  former  word  includes  "  tenements,  hereditaments, 
and  heritages  of  any  tenure ; "  and  I  think  this  language  is  large 
enough  to  cover  mines.  I  should,  therefore,  but  for  the  18th  and 
following  sections  of  the  Act,  be  prepared  to  yield  to  the  conten- 
tion of  the  appellants.  It  cannot,  I  think,  be  denied  that  these 
sections  constitute  a  special  code  relating  to  mines  and  their 
working,  and  to  interference  with  them,  which  was  intended  in 
general  to  regulate  the  respective  rights  of  mine  owners  and  the 
undertakers  in  relation  to  the  construction  and  maintenance  of 
waterworks.  And  the  question,  as  it  appears  to  me,  is  whether 
these  enactments  were  not  intended  exclusively  to  regulate  those 
rights,  so  far  at  least  as  the  compensation  to  be  paid  by  the 
undertakers,  other  than  for  minerals  taken  and  damage  consequent 
thereon,  was  concerned,  and  thus  exclude  claims  for  compensation 
which  might  perhaps  otherwise  have  been  made  good  imder  sect.  6. 
The  sections  in  question  are  introduced  by  the  words,  "  And  with 
respect  to  mines,  be  it  enacted  as  follows.**  The  object  of  these 
sections  appears  to  me  to  be  that  the  undertakers  should  not  be 
under  the  obligation  of  buying  any  minerals  which  were  not  neces- 
sary for  the  construction  of  their  works,  and  which  might  never  be 
wrought  by  the  owners  so  as  to  interfere  with  them,  but  should  be 
in  a  position,  if  the  winning  of  the  mines  approached  so  near  their 
works  as  to  endanger  them,  to  prohibit  the  removal  of  the  minerals 

VOL.  XVII. — 41 


642  MINES  AND   MINERALS. 


Ho.  18.  —  H611idA7  ▼.  Kayor,  &o.  of  Borough  of  Wakefield,  1891,  A.  C.  108, 108. 

whose  support  was  requisite  for  the  security  of  the  works,  on  the 
terms  of  paying  compensation  to  the  mine  owner.  With 
[*  103]  this  view  it  is  provided  that  the  minerals  *  shall  not  be 
gotten  within  the  prescribed  distance  of  the  works  with- 
out due  notice  being  given  to  the  undertakers,  so  as  to  enable  them 
to  take  advantage  of  the  power  conferred  upon  them  to  prohibit 
mining  within  the  prescribed  distance. 

But  for  the  fact  that  mining  in  the  neighbourhood  of  the  under- 
takers' works,  without  leaving  sufficient  support  for  them,  would 
not  only  imperil  the  existence  of  those  works,  but  might  be  a 
source  of  danger  to  the  mine  itself  by  letting  in  the  water  and 
flooding  it,  I  should  have  no  hesitation  in  arriving  at  the  conclu- 
sion that  the  intention  of  the  Legislature  was  that  no  compensa- 
tion in  respect  of  such  restraint  upon  the  working  of  the  mines 
as  might  be  necessary  for  the  support  of  the  works,  should  be 
recovered  until  the  mining  approached  within  the  prescribed 
distance  of  those  works,  and  in  respect  of  such  minerals  as  the 
undertakers  considered  must  be  left  for  the  safety  of  their  works. 
But  the  difficulty  as  regards  this  particular  description  of  under- 
taking arises  from  the  fact  that,  whereas  in  general  the  mine  owner 
is  sufficiently  protected  by  being  left  to  win  his  minerals  as  he 
pleases  if  the  undertakers  will  not  compensate  him  for  refraining 
from  working,  in  the  case  of  waterworks  he  may  bring  disaster  on 
his  mine  if  he  continues  to  work.  It  is  true  that  by  sect  27  the 
same  right  of  action  is  reserved  to  him  for  damage  occasioned  to 
his  mines  by  the  waterworks  as  he  would  have  had  if  they  had  not 
been  constructed  or  maintained  under  parliamentary  authority; 
but  it  is  urged  with  force  that  this  can  hardly  be  said  to  be  an 
absolute  protection  to  the  mine  owner. 

I  fully  feel  the  weight  of  tlie  arguments  urged  before  your 
Lordships  by  the  appellants ;  but,  on  the  other  hand,  I  find  it  im- 
possible not  to  be  impressed  by  the  fact  that  the  Legislature,  in  a 
Waterworks  Act,  has  enacted  this  code  relating  to  mines,  and  has 
added  to  it  a  reservation  of  rights  of  action,  which  is  not  to  be 
found  in  the  similar  mining  clauses  contained  in  the  Eailways 
Clauses  Acts.  And  I  think  it  will  be  seen,  when  the  matter  is 
carefully  considered,  that  there  is  insuperable  difficulty  in  the  way 
of  sustaining  the  right  to  the  compensation  claimed,  and,  at  the 
same  time,  giving  due  effect  to  the  provisions  relating  to  mines,  at 
least  without  involving  the  risk  of  serious  injustice. 


B.  C   VOL.  XVII.]       SECT.  UI.  —  KAILWAY  AND  CANAL  COMPANIES,      643 
Ho.  18.  --HoUiday  ▼.  Mayor,  &e.  of  Boroiigli  of  Wakefield,  1891,  A.  C.  104, 106. 

[•  104]  *  The  arbitrator  here  found  that  if  the  undertakers 
purchase  and  retain  in  situ  the  thirty-five  acres  of  the 
Middleton  seam,  for  which  they  gave  notice,  and  no  other  coal  in 
that  or  any  other  seam,  the  appellants  could  not  safely  get  more 
than  fifty  per  cent  of  the  cannel  and  black  coal  under  the  reservoir 
and  within  twenty  yards  of  its  boundary,  and  he  assessed  compen- 
sation upon  this  basis.  What,  the  respondents  ask,  is  to  happen 
when  the  mine-owner's  workings  come  within  the  prescribed  dis- 
tance, and  he  gives  statutory  notice  of  his  intention  to  work  ?  Are 
they  to  be  bound  to  compensate  him  as  if  he  had  already  received 
nothing  in  respect  of  a  limitation  of  his  mining  rights  ?  And  if 
they  are  content  that  he  should  work  the  fifty  per  cent  which  the 
arbitrator  considered  might  be  worked  with  safety,  what  means  are 
there  of  compelling  him  to  refrain  from  working  the  residue  ? 
These  considerations  do  not,  owing  to  the  statement  of  facts  by  the 
arbitrator,  present  to  my  mind  an  insuperable  difficulty  in  the  pecu- 
liar circumstances  of  the  present  case.  There  is  more  force  in  the 
objection  that  the  effect  of  the  award  is  to  withdraw  from  the 
undertakers  the  determination  what  seams  should  be  worked  and 
what  left  for  the  support  of  their  works,  and  to  transfer  it  to  the 
arbitrator,  whereas  they,  by  selecting  different  seams,  might,  per- 
haps, have  afforded  the  required  support  as  effectually  and  more 
economically.  And,  moreover,  the  result  is  to  compel  payment  at 
once  on  the  basis  that  workings  will  be  interfered  with  which 
might  never  be  undertaken.  Whether  these  considerations  would 
be  sufficient  to  conclude  the  case  against  the  appellants  if  an  award 
under  the  statute  would  always  show  on  its  face  the  basis  on  which 
the  arbitrator  had  assessed  compensation  and  the  minerals  which  he 
had  assumed  must  be  left  for  the  support  of  the  surface,  it  is  need- 
less to  inquire.  The  argument  of  the  appellants  appears  to  me  to 
lose  sight  of  the  fact  that  the  statute  does  not  compel  any  such 
course.  The  statement  was  only  made  in  the  present  case  to  raise 
a  legal  point.  An  arbitrator  assessing  compensation  under  sect  6 
would  be  under  no  obligation  to  show  on  the  face  of  his  award  the 
mode  in  which  he  had  arrived  at  the  sum  assessed,  or  the  basis  on 
which  he  had  proceeded.  And  there  would,  I  think,  be  no  mode 
of  compelling  him  to  do  so.  All  that  the  award  would 
*  show  would  be  that  he  had  assessed  a  certain  amount  of  [*  105] 
compensation  as  due  to  the  claimants.  It  is  necessary  to 
bear  this  in  mind  in  considering  the  appellants'  contention,  and  to 


644  MINES  AND  MINERALS. 

Ho.  18. — HoUiday  ▼.  Kayw,  &o.  of  Banrngk  of  Wakaflold,  1881,  A.  C.  108,  108. 

see  how  it  would  work  in  the  ordinaiy  case.  Suppose  after  a  sum 
has  been  awarded  and  paid  to  the  mine  owner  as  compensation,  he 
approaches  with  his  workings  the  prescribed  distance,  and  gives 
the  undertakers  the  statutory  notice.  What  means  would  there 
be  of  ascertaining  how  much  of  the  minerals  the  arbitrator  had 
contemplated  must  be  left  when  assessing  compensation,  or  of 
restraining  the  mine  owner  from  working  the  minerals  in  respect 
of  the  necessity  for  leaving  which  he  had  been  paid,  or  of  securing 
that  he  was  not  paid  a  second  time  in  respect  of  the  same 
minerals  ?  Besort,  it  may  be  said,  could  be  had  to  the  evidence 
given  before  the  arbitrator;  but  this  would  probably  have  been 
conflicting,  and  the  arbitrator  may  not  be  in  a  position,  even  if 
inquiry  of  him  were  legitimate,  to  afford  the  information.  These 
considerations  appear  to  me  strong  to  show  that  the  Legislature 
intended  such  questions  of  compensation  as  that  which  is  in  con- 
troversy in  the  present  case,  to  be  dealt  with  exclusively  under  the 
special  enactments  relating  to  mines. 

And  I  think  the  real  answer  to  the  difficulty  suggested  by  the 
appellants,  which  I  admit  to  be  a  weighty  one,  is  this,  that  the 
Legislature  may  have  thought  that  the  self-interest  of  the  water- 
works owners  would  be  calculated  to  insure  their  securing  sufficient 
support  for  their  reservoirs  and  other  works,  and  that  this,  coupled 
with  the  provision  that  nothing  in  the  Act  should  prevent  their 
being  liable  **  to  any  action  or  other  legal  proceeding  to  which  they 
would  have  been  liable  for  damage  or  injury  occasioned  by  their 
works  if  these  had  not  been  constructed  under  the  authority  of 
Parliament,"  was  a  sufficient  security  for  the  mine  owner. 

I  ought  to  add  a  word  or  two  with  reference  to  clause  25.  Sup- 
posing that  clause  to  be  applicable  to  such  a  case  as  the  present, 
I  do  not  think  the  time  has  yet  arrived  for  assessing  compensation 
under  it.  The  earlier  words  of  the  section  certainly  seem  to  limit 
somewhat  narrowly  the  later  provisions.  But  the  clause  is  clumsily 
and  inartificially  drawn,  and  it  is  possible  that  these  latter 
words  may  be  capable  of  a  broader  construction  than  that 
[*  106]  *  which  at  first  suggests  itself.  I  do  not  think  this  clear 
enough  to  rest  my  judgment  upon  it,  though  it  would  to 
my  mind  get  rid  of  all  difficulty  if  such  a  construction  could  be 
adopted.  All  that  I  desire  to  do  is  to  express  no  opinion  which 
could  preclude  the  contention  hereafter,  that  if  the  mine  would  be 
endangered  by  the  working  of  the  minerals,  and  the  respondents 


R.  C.  VOL.  XVII.]      SECT.  IH.  —  RAILWAY  AND  CANAL  COMPANIES.      645 
Ho.  18.  — HoUiday  ▼.  Kayor,  &o.  of  Bonmgliof  Waksiitid,  1891,  A.  C.  106, 107.— HotM. 

refuse  to  make  compensation  under  the  earlier  sections,  it  may  be 
claimed  under  this  one. 

Upon  the  whole,  I  feel  constrained  to  the  conclusion  that  the 
judgment  appealed  from  ought  to  be  affirmed. 
Lord  Morris  :  — 

My  Lords,  I  am  of  opinion  the  word  "  lands  "  in  sect.  6  of  the 
Waterworks  Clauses  Act,  1847,  includes  "mines;"  but  I  am  also 
of  opinion  that  the  mines  clauses  of  the  same  Act,  sect.  18  and 
following  sections,  must  be  held  to  govern  the  rights  of  under- 
takers and  mine  owners  in  relation  to  waterworks  undertakings. 
I  am  further  of  opinion  that  sect.  25  does  not  include  an  injury  to 
the  mines  apprehended  by  the  mine  owner  such  as  present  compen- 
sation is  sought  for  in  this  case  by  him. 

The  reasons  for  arriving  at  these  conclusions  were  so  clearly  and 
fully  set  forth  in  the  judgments  of  my  noble  and  learned  friends, 
Lord  Watson  and  Lord  Herschell,  which  I  have  had  the  advan- 
tage of  reading,  that  I  found  I  could  not  add  anything.  I  concur 
that  the  order  appealed  from  should  be  affirmed. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed; 
the  question  of  costs  (upon  which  the  Court  of  Appeal  had 
made  no  order,  for  a  reason  which  is  not  applicable  since 
the  Arbitration  Act,  1889 :  see  In  re  Gonty  &  Manchester^ 
&c.  By.  Co,  (C.  A.),  1896,  2  Q.  B.  439 ;  65  L.  J.  Q.  B.  625 ; 
75  lu  T.  239 ;  45  W.  R  83)  reserved  for  argument  at  the 
Bar. 
Lords'  Journals,  15th  December,  1890. 

*  The  parties  having  afterwards  agreed  as  to  the  costs,  [*  107] 
that  question  was  not  argued ;  and  upon  a  petition  of  the 
appellants  (consented  to  by  the  respondents)  it  was  ordered  that 
each  party  pay  their  own  costs  in  the  appeal 

ENGLISH  NOTES. 

The  statement  of  principles  upon  which  compensation  ought  in 
general  to  he  assessed,  referred  to  in  the  speech  of  Lord  Halsbury, 
p.  632,  ante,  as  having  been  made  by  Lord  Wensleydale  in  the  Cale-- 
donian  BaUway  Co.  v.  Lockhart  (1860),  1  Paterson  Sc  App.  942,  950, 
3  Macq.  808,  825,  was  as  follows:  Referring  to  an  objection  to  the 
award  there  in  question  that  the  arbiter  had  awarded  prospective  and 
contingent  damages,  which  he  ought  not  to  do,  Lord  Wensleydale 


646  MINES  AND  MINERALS. 


Ho.  18.  —  BoOiAaj  ▼.  Mayor,  &e.  of  Borough  of  Wakoflall  — Hotai. 

Baid:  ^^The  answer  is,  that  he  really  has  not  done  so.  The  compensa- 
tion given  is  for  the  necessary  damages  hy  the  construction  of  the  rail- 
way, and  for  the  highly  prohahle  damages  which  would  he  occasioned 
in  the  ordinary  course  of  events  by  the  vicinity  of  the  river  Clyde. 
It  becomes,  therefore,  unnecessary  to  consider  what  would  be  the  effect 
of  awarding  a  sum  for  purely  speculative  damages,  not  reasonably  fore- 
seen. Generally  speaking,  railway  and  other  similar  companies  acquire 
parliamentary  power  to  purchase  land  and  to  construct  their  works,  on 
condition  of  their  paying  the  price  of  the  land  and  the  compensation 
to  the  parties  who  may  sustain  damage  by  exercise  of  the  acquired  power 
to  do  acts  for  which,  if  the  authority  of  the  Legislature  had  not  been 
given,  the  landowners  might  have  maintained  an  action.  That  price 
should  be  a  full  compensation,  once  for  all,  for  the  injury  to  those  rights. 
When  paid,  the  company  have  obtained  a  lawful  right  to  construct  their 
works ;  and  if  they  happen  to  injure  one  in  the  reasonable  exercise  of 
these  rights  so  purchased,  they  are  irresponsible  for  such  injury.  Those 
rights  are  given  for  the  public  good;  and  if  an  extraordinary  unforeseen 
damage  occur,  the  suffering  party  must  bear  it,  and  is  without  remedy. 
But  if  those  acquired  rights  are  exercised  unreasonably  and  without  due 
care,  those  who  have  acquired  them  are  responsible  as  they  are  for  their 
exercise  of  common-law  rights.  Sic  utere  ttto  ut  alienum  non  Iwdccs* 
The  case  of  Lawrence  v.  Great  Northern  EaUway  Co,  (16  Q.  "B.  643) 
may  have  been  well  decided  as  belonging  to  that  class  of  cases  in  which 
the  acquired  right  has  been  negligently  executed,  for  which,  therefore, 
an  action  would  lie.  I  much  doubt  whether  the  company  would  have 
been  responsible  for  damages  occasioned  by  the  due  exercise  of  their 
powers,  though  those  damages  were  unforeseen  at  the  time  the  compen- 
sation was  settled  and  paid.  In  the  case  in  the  Court  of  Exchequer 
the  damage  done  to  a  distant  piece  of  land  was  clearly  not  within  the 
terms  of  the  arbitration,  the  award  on  which  was  sought  to  be  impeached ; 
and  the  dictum  of  the  Lord  Chief  Babon,  that  the  claimant  might  pro- 
ceed for  further  damages  under  the  68th  section  of  the  general  Act  was 
clearly  extra-judicial,  and  was  founded  upon  the  authority  of  Lawrence^s 
case.  These  observations,  of  course,  do  not  apply  to  cases  of  which 
there  are  some  {The  King  v.  Leeds  and  Selby  Railway  Co.,  3  A.  &  E. 
683;  Lee  v.  Milner,  2  M.  &  W.  839)  where,  by  the  express  terms  of 
the  special  Acts,  compensation  for  damages  from  time  to  time  sustained 
are  payable." 


B.  a  VOL.  XTH.]       SECT.  IV.  —  RIGHTS  OF  SUPPORT.  647 

Ho.  19. — Sowbotham  ▼.  WilMn,  80  ,L.  J.  Q.  B.  49.  —  Biile. 


Section  IV. — Rights  of  Support. 

No.  19.  — EOWBOTHAM  v.  WII50N. 
(h.  l.  1860.) 

No.  20.  — LOVE  V.  BELL. 
(H.  L.  1884) 

BULK 

Where  land  has  been  granted  excepting  the  mines^  or 
the  right  to  the  mines  has  been  otherwise  severed  from  the 
right  to  the  surface,  prima  fade^  and  unless  there  is  ex- 
press provision  to  the  contrary  in  the  instrument  effect- 
ing the  severance,  the  surface  owner  is  entitled  to  support 
of  his  land  in  the  state  in  which  it  is  at  the  time  of  the 
grant  or  reservation. 

Kowboiham  and  others  y.  Wilson. 

so  L.  J.  Q.  B.  49-54  (s.  0.  8  H.  L.  Cas.  348 ;  6  Jar.  (N.  S.)  965). 

Jlftnes.  —  Stiitijacent  Land.  —  Support.  —  Damage.  —  Orant         [49] 

An  Act  of  Parliament  anthorided  comuiissioners  to  allot  certain  commons 
and  commonable  lands.  The  Act  authorised  the  commissioners  to  allot  the 
lands  **  amougst  persons  who,  at  the  time  of  ezecntiDg  the  award,  should  be 
entitled  to  or  interested  therein,  either  in  right  of  the  soil  or  of  any  other  right 
or  interest  whatever,  and  with  a  just  regard  to  any  mines,  &c,  supposed  to  be 
under  the  same.'*  The  Act  then  provided  for  proportioning  the  allotments,  and 
for  securing  the  necessary  right  to  work  the  mines.  The  commissioners  made 
their  award,  allotting  to  A.  land  and  to  B.  mines,  specially  naming  mines  of 
coal  under  A.'s  land.  The  award  then  contained  a  covenant  that  "the  mines 
so  allotted  shall  be  enjoyed  by  the  persons  to  whom  the  same  are  assigned,  and 
be  worked  and  gotten  accordingly  without  molestation,  denial,  or  interruption  of 
any  other  persons  parties  to  these  presents,  and  those  claiming  under  them,  own- 
ers of  the  surface  of  the  lands  under  which  such  mines  are  situate,  and  without 
being  subject  or  liable  to  any  action  on  account  of  working  and  getting  the  same 
by  reason  that  the  surface  of  the  lands  may  be  rendered  less  commodious  by 
sinking  in  hollows  or  being  otherwise  defaced  and  injured, — the  parties  to 
these  presents  and  interested  in  the  disposal  of  lands  and  mines  under  the  cir- 
cumstances aforesaid  having  agreed  with  each  other,  and  being  willing  and 
desirous  to  accept  their  respective  allotments,  subject  to  any  inconvenience  and 


648  MIKES  AND  MINEBALS. 


Vo.  19.--Sow1wtham  ▼.  Wilwa,  80  L.  J.  Q.  B.  49,  80. 

incutnbrance  which  may  arise  from  the  cause  aforessdd."  A.  signed  the  award, 
and  thus  executed  the  covenant  it  contained.  B.'s  assignee  of  the  mines  worked 
the  mines.  By  degrees*  without  any  imputation  of  negligence  in  the  working 
of  the  mines  or  of  working  them  in  an  unusual  manner*  the  sunacd  of  the  ground 
and  the  houses  upon  it  became  injured.  A.'a  assignee  of  the  lands  bronght  an 
action  against  B.'s  assignee  of  the  mines  for  compensation  or  damages.  HM^ 
that  the  award  was  valid ;  that  the  right  to  work  mines  was  an  incident  to  the 
grant  of  mines ;  that  though  the  covenant  could  not  operate  as  a  release  of  the 
general  right  of  a  surface  ownei  to  the  support  of  the  subjacent  soil,  it  did  oper- 
ate as  a  grant  of  the  right  to  work  the  mines,  and  thereby  injure  the  sarfistce, 
provided  such  injury  was  not  the  result  of  negligence  ur  wilfulness. 

This  was  a  proceeding  in  error  under  the  Common-Law  Pro- 
cedure Acts  of  1852  and  1854,  from  a  judgment  of  the  Court  of 
Exchequer  Chamber  upon  a  special  case,  whereby  the  judgment 
of  the  Court  of  Queen's  Bench  in  favour  of  the  defendant  was 
affirmed. 

The  action  was  brought  by  Daniel  Rowbotham,  the  now  plain- 
tiffs testator,  and  the  declaration  alleged  that  the  plaintiff  was 
entitled  to  certain  houses  in  reversion  which  "had  been  erected 
and  standing  for  more  than  twenty  years,"  and  that  the  plaintiff 
was  "  rightfully  entitled  to  have  the  said  houses  and  the  founda- 
tions thereof  supported  by  the  soil  and  land  contiguous  and  near 
to  the  same,  and  also  to  have  the  foundations  of  the  said  houses^ 
and  the  land  whereupon  the  same  were  erected  and  standing, 
sufficiently  supported  by  the  minerals  lying  under  the  said  last- 
mentioned  land;"  and  alleged  for  breach,  that  "the  defendant 
wrongfully  and  negligently  worked  certain  mines  under  the  land 
on  which  the  said  houses  were  erected,  and  under  the  land  con- 
tiguous and  near  thereto  removed  the  coals  and  minerals  from  the 
said  several  mines  without  leaving  any  sufficient  support,  so  that 
by  reason  thereof  the  foundations  of  the  said  houses  in  which  the 
plaintiff  was  so  interested  as  aforesaid,  became  and  were  weakened, 
damaged,  and  undermined,  and  became  incapable  of  supporting  the 
said  houses,  and  the  said  houses  cracked,  sank  in,  and  became  and 
were  dilapidated  and  unsafe;  and  that  the  plaintiff  had  been 
injured  in  his  reversionary  interest."  In  the  second  count  the 
plaintiff  alleged  that  "  certain  land  was  in  the  possession  of  cer- 
tain persons  as  tenants  thereof  to  the  plaintiff,  the  reversion 
[*  50]  therein  then  and  still  belonging  to  the  *  plaintiff,  yet  the 
defendant  wrongfully  and  negligently,  and  without  leaving 
any  proper  and  sufficient  support  in  that  behalf,  worked  certain 


B.  C.  VOL.  XVII.]     SECT.  IV.  —  BIGHTS  OF  SUPPORT.  649 

Vo.  19.--Sowbotham  ▼.  Wflion,  SO  L.  J.  Q.  B.  M. 

coal  mines  under  and  contiguous  to  the  said  land,  and  got  and 
removed  the  coals  and  minerals  and  earth  of  and  in  the  said  last* 
mentioned  mines ;  that  by  reason  thereof  the  soil  and  surface  of 
the  said  land  gave  way  and  sank  in,  and  became  low,  hollow,  and 
uneven,  and  liable  to  be  covered  with  water,  and  thereby  the  said 
land  became  unfit  for  cultivation  as  garden  ground,  for  which 
purpose  it  had  previously  been  cultivated,  and  became  and  was  of 
much  less  value  than  the  same  had  theretofore  been,  and  the' 
plaintiff  became  and  was  greatly  injured  and  prejudiced  in  his 
reversionary  interest  therein;  and  the  plaintiff  claims  £300." 

After  declaration  there  was  stated  by  consent  of  the  parties,  for 
the  opinion  of  the  Court  of  Queen's  Bench,  the  following 

CASE. 

The  plaintiff  was  the  reversioner  in  fee  of  the  surface  land  and 
of  the  buildings  mentioned  in  the  first  count  of  the  declaration, 
and  of  the  surface  land  mentioned  in  the  second  count,  having 
become  seised  of  the  same  premises  by  virtue  of  divers  mesne 
conveyances  from  Samuel  Pears,  to  whom  the  said  surface  land 
was  allotted  by  the  award  hereinafter  mentioned. 

The  buildings  had  been  erected  more  than  twenty  years  before 
the  accruing  of  the  causes  of  action,  and  the  houses  were  not  upon 
the  land  at  the  time  of  the  execution  of  the  award  hereinafter 
mentioned,  nor  until  long  afterwards. 

The  defendant,  before  and  at,  &c.,  was  entitled  to  and  worked 
the  mines  of  coal,  being  the  same  mines  as  those  allotted  to  Henry 
Howlette  by  the  award  under  the  said  premises,  and  the  damage 
to  the  plaintiff's  reversion  mentioned  in  the  first  and  second  counts 
was  caused  by  the  subsequent  sinking  of  the  soil.  The  course 
and  practice  of  mining  before  and  at  the  time  of  the  Act  and  award 
hereinafter  mentioned,  and  since  in  such  cases  used  and  approved 
of  in  the  county  and  neighbourhood  in  which  the  said  mines  were 
situate,  was  for  the  owner  of  the  mine  to  get  the  whole  of  the 
underlying  coal  in  the  mine  without  leaving  any  pillars  of  the 
coal  by  way  of  support,  the  coal  there  worked  being  of  so  soft  and 
perishable  a  nature  as  that  any  coal  left  by  way  of  support  would 
in  a  short  space  of  time  fall  away  and  decay;  but,  instead  of 
leaving  pillars  of  the  same  coal,  the  course  and  practice  of  mining 
during  the  period  aforesaid  used  and  approved  of  in  the  county 
and  neighbourhood  aforesaid  has  been  and  is,  to  erect  pillars  of 


650  MINES  AND  MINERALS. 


No.  19.  —  BowboUuun  ▼.  Wilaoa,  80  L.  J.  Q.  B.  M,  51. 

the  refuse  coal,  called  lamb  and  slack,  which  form  a  much  more 
durable  support  than  pillars  of  the  same  coal  would,  if  left.  The 
defendants'  mines  have  always  been  worked  without  any  neg- 
ligence on  his  part,  and  according  to  the  said  course  and  practice 
of  mining,  and  he  left,  as  is  usual,  pillars  of  lamb  and  slack,  ac- 
cording to  such  course  and  practice.  No  natural  or  artificial 
pillars  woifld  prevent  the  accrual  of  the  injuries  now  complained 
of,  which  have  arisen  from  the  natural  subsidence  of  the  surface 
soil  in  getting  the  mine,  according  to  the  use  and  practice  of  the 
county  and  neighbourhood  as  aforesaid. 

By  an  Act  of  Parliament,  9  Gea  III.,  entitled  **  An  Act  for 
dividing  and  enclosing  the  common  fields,  common  grounds  and 
commonable  lands,  in  the  parish  and  township  of  Bedworth,  in 
the  county  of  Warwick,  and  for  regulating  certain  charity  estates 
within  the  said  parish,"  certain  commissioners  were  appointed  for 
the  purposes  and  with  the  duties,  powers,  and  authorities  in  the 
said  Act  more  particularly  mentioned. 

The  Act  is  made  part  of  the  case.  It  recites  that  there  were  in 
the  township  and  parish  of  Bedworth  certain  common  fields  and 
commonable  lands,  and  that  the  property  in  the  same  lay  inter- 
mixed and  dispersed  in  small  parcels  remote  from  the  houses  of 
the  owners  thereof,  which  had  been  found  to  be  very  inconvenient 
and  detrimental,  and  that  the  owners  were  desirous  that  the  said 
lands  should  be  specifically  allotted  amongst  them  in  severalty, 
according  to  their  several  rights  and  interests.  Commissioners 
were  appointed  for  dividing,  allotting,  and  enclosing  the  said 
commons,  commonable  lands,  &c.,  and  for  putting  the  Act  in 
execution ;  and  it  authorises  and  requires  them  to  divide,  as  certain, 
and  allot  the  same  unto  and  amongst  the  persons  who  at 
[*  51]  the  time  of  executing  the  award  should  be  entitled  to  or 
interested  therein,  either  in  right  of  soil  or  of  any  other 
right  or  interest  whatsoever,  in  a  due  and  fair  proportion,  as  near 
as  might  be,  according  to  the  value  of  the  shares  and  interests, 
and  with  a  just  regard  to  any  mines  or  delphs  of  coal,  lime,  and 
stone  supposed  to  lie  under  the  same,  but  subject,  nevertheless, 
to  the  rules,  orders  and  directions  of  the  Act. 

The  Act  recited  that  there  were  lands  in  the  parish  supposed 
to  have  mines  under  them,  and  on  that  account  the  proprietors 
might  be  desirous  of  retaining  their  property  therein;  and  it 
enacted,  that  such  of  the  lands  of  the  said  proprietors  as  the 


B.  C.  VOL.  XVII.]        SECT.  IV.  —  RIGHTS  OF  SUPPORT.  651 

Ho.  19.  —  Sowboiham  ▼.  Wikon,  80  L.  J.  Q.  B.  61. 

commissioDers  should  adjudge  to  have  any  mines  should  be 
allotted  and  set  by  metes  and  bounds  in  distinct  lots  unto  or  for 
such  of  the  proprietors  respectively  as  should  desire  the  same,  or 
otherwise  that  there  should  be  set  out  for  such  proprietors  other 
lands  under  which  there  should  be  supposed  to  be  mines  of  equal 
value;  and  the  commissioners,  in  allotting  the  said  mine  lands, 
should  make  just  allowances  between  such  of  them,  the  delphs 
whereof  remained  entire  and  unbroken,  and  such  of  them  which 
had  theretofore  been  opened  and  in  part  worked.  And  then  the 
right  of  doing  what  was  necessary  for  working  the  mines  was 
provided  for. 

The  Act  empowered  the  commissioners  to  draw  up  an  award, 
which  should  express  the  quantity  of  acres,  &c.,  contained  in  the 
said  commons,  &c.,  and  a  description,  &c.,  and  proper  orders  for 
fencing,  &c.,  and  for  making  roads,  &c.,  and  that  the  award  should 
be  binding  and  conclusive  upon  all  parties  interested. 

An  appeal  was  given  to  the  Quarter  Sessions  for  anything  done 
in  pursuance  of  the  Act. 

The  commissioners,  on  the  21st  of  June,  1770,  made  their  award, 
and  did  thereby  award  and  allot  certain  lands  to  H.  Howlette. 
"  And  as  to  the  mines  on  the  said  estate  of  the  said  H.  Howlette, 
previous  to  the  enclosure  thereof,  the  same  not  having  been  re- 
quired to  be  set  out  by  metes  and  bounds,  we  do  assign,  allot,  and 
appoint  unto  the  said  H.  Howlette,  in  lieu  thereof,  all  the  mines 
of  coal  and  limestone  under  the  several  allotments  of  land  before 
made  to  him,  and  also  the  mines  of  coal  under  the  allotment  to 
Samuel  Pears ;  and  also  all  the  mines  of  coal  under  the  turnpike 
road  so  far,"  &c.  The  commissioners  also  awarded  to  S.  Pears 
"  all  that  lot  or  parcel  of  land  lying  in  Mill  Field  aforesaid,  con- 
taining 2a.  2p.,  bounded  on  the  east  by  the  turnpike  road  and 
by  the  allotment  to  the  said  Thomas  Murray,  on  the  north  by 
the  same  allotment  and  by  an  allotment  to  the  said  Sir  Roger 
Newdigate,  and  on  the  west  and  south  by  an  allotment  to  the 
said  H.  Howlette ; "  and  as  to  the  mines  on  the  estate  of  S.  Pears, 
the  commissioners  allotted  to  him  "all  the  mines  of  coal  under 
that  part  of  the  turnpike  road  contained  between  a  line  ranging 
with  the  south  side  of  his  own  home  close,  and  a  parrallel  line 
drawn  from  the  south  end  of  the  said  Sir  Eoger  Newdigate's 
tenement  opposite  to  houses  of  the  said  S.  Pears  and  of  Daniel 
Jackson,  all  situate  in  Colly  Croft  aforesaid,  for  the  breadth  of 


652  MINES  AND  MINERALS. 

Ho.  19.  —  Bowbotham  ▼.  WilMa,  80  L.  J.  Q.  B.  61,  58. 

thirty-five  links  on  the  east  side  thereof  adjoining  to  the  home- 
stead of  the  said  S.  Pears,  which  the  said  commissioners  adjudged 
to  be  equal  in  value  to  the  mines  he  was  previously  possessed  of, 
without  being  entitled  to  any  part  of  the  mines  under  his  own 
allotment  of    land,  which    last-mentioned   mines  were    thereby 
before  awarded  to  the  said  H.  Howlette.*'    The  award  also  con- 
tained the  following  covenant:  *'And  whereas,  in  order  to  pre- 
serve the  convenience  of  situation  of  the  allotment  to  the  several 
proprietors  interested  in  the  said  enclosure  and  division,  it  hath 
been  found  necessary,  in  some  cases,  to  assign  the  mines  under 
the  whole  of  some  particular  allotments,  and  in  other  cases  part 
of  such  mines  to  different  persons  than  those  to  whom  the  allot- 
ments of  the  surface  land  are  awarded,  and  the  several  proprietors^ 
parties  to  this  our  award,  are  the  only  persons  interested  in  the 
disposal  of  land  and  mines  under  such  circumstances,  which  said 
proprietors  parties  thereto  do,  by  their  sealing  and  executing  these 
presents,  testify  their  acceptance  of  their  respective  allotments 
in  manner  as  the  same  are  allotted  to  them  as  aforesaid,  and  do 
for  themselves  severally  and  respectively,  and  for  their  several 
and  respective   heirs,  executors,   administrators,   successors,   and 
assigns,  utterly  disclaim,  release,  and  disavow  all  right,  title,  in- 
terest, claim,  and  demand  of,  in,  or  to  any  of  the  mines 
[*  52]  under  *  their  several  allotments,  except  such,  or  such  part 
thereof,  only  as  are  hereinbefore  particularly  mentioned  and 
described  to  be  allotted  to  each  of  them.    And  the  same  pro- 
prietors do  hereby,  for  themselves,  &c,,  covenant,  &c.,  that  the 
mines  so  allotted  under  the  circumstances  aforesaid  shall  or  law- 
fully may  for  ever  after  be  held  and  enjoyed  by  the  respective 
persons  to  whom  the  same  are  assigned,  according  to  the  true  in- 
tent and  meaning  of  this  award,  and  by  them,  and  every  of  them, 
be  worked  and  gotten  accordingly,  without  any  molestation,  denial, 
or  interruption  of  any  other  person  or  persons,  parties  to  these 
presents,  and  those  claiming  under  them  respectively,  who  for  the 
time  being  are  or  may  be  owner  or  owners  of  the  surface  of  the 
lands  under  which  such   mines  are   situate,  and  without  being 
subject  or  liable  to  any  action  or  actions  for  damage  on  account 
of  working  and  getting  the  said  mines,  for  or  by  reason  that  the 
surface  of  the  lands  aforesaid  may  be  rendered  less  commodious 
to  the  occupier  thereof  by  sinking  in  hollows,  or  being  otherwise 
defaced  and  injured  where  such  mines  shall  be  worked,  the  said 


B.  C.  VOL.  XVII.]      SECT.  IV.  —  RIGHTS  OF  SUPPORT.  653 

Vo.  19.  — Bowboiham  ▼.  WilMm,  80  L.  J.  Q.  B.  68. 

several  proprietors,  parties  to  these  presents,  and  interested  in  the 
disposal  of  lands  and  mines,  under  the  circumstances  aforesaid, 
having  agreed  with  each  other,  and  being  willing  and  desirous  to 
accept  their  respective  allotments  in  their  several  situations  here- 
inbefore declared,  subject  to  any  inconvenience  and  incumbrance 
which  may  arise  from  the  cause  aforesaid,  so,  nevertheless,  as  that 
nothing  herein  contained  shall  extend,  or  be  construed  to  extend, 
to  authorise  or  enable  any  of  the  parties  for  the  time  being  entitled 
to  the  said  mines  to  sink  pits  into  the  allotments  under  which  the 
same  are  situate,  for  the  purpose  of  working  the  said  mines,  with- 
out the  consent  of  the  then  owners  of  the  surface  of  the  same 
allotments  previously  obtained,  or  in  any  manner  to  dig  or  break 
up  the  said  surface  without  the  like  consent." 

Judgment  was  given  in  the  Court  of  Queen's  Bench  for  the 
defendant  upon  both  counts.  Proceedings  in  error  were  taken  by 
the  plaintiff  in  the  Exchequer  Chamber,  where  the  judgment  was 
affirmed. 

The  present  proceeding  in  error  was  then  brought 

Hayes,  Serj.,  and  Spinks,  for  the  plaintiff  in  error,  insisted  that 
this  was  not  a  covenant  running  with  the  land ;  that  only  those 
who  were  parties  to  the  deed  were  bound  by  it;  that  Howlette 
was  not  a  party  to  the  deed,  for  that  he  had  never  executed  it ; 
and  that  the  general  right  to  support  could  not  be  destroyed  by 
what  had  taken  place  here.  They  cited  Humphries  v.  Brogden, 
12  Q.  B.  739  (p.  407,  ante) ;  Keppel  v.  BaUey,  2  MyL  &  K  517 ; 
Bonomi  v.  Backhouse,  El.  B.  &  E.  642,  27  L  J.  Q.  B.  378,  28  L.  J. 
Q.  B.  378;  Moore  v.  Eawson,  3  B.  &  C.  332  (27  R  K.  375); 
JSpencer^s  Case,  1  Smith's  Lead.  Cas.  63;  Casamajor  v.  Strode, 
2  Myl.  &  K.  706;  The  King  v.  JVashbrook,  4  B.  &  C.  732;  Shep. 
Touch.  163. 

M.  Smith  and  Field  contended  that  the  award  here  was  binding 
on  all  parties,  who  had,  as  they  lawfully  might,  accepted  the 
ownership  of  the  surface,  accompanied  by  a  qualified  right  to 
support  from  the  subjacent  strata.  They  cited  Hilton  v.  Lord 
GranvUle,  5  Q.  B.  701 ;  Ooodtitle  v.  Bailey,  Cowp.  597 ;  Gale  on 
Easements,  46 ;  NoHham  v.  Hurley,  1  El.  &  B.  665,  22  L.  J.  Q.  B. 
183 ;  Wickham  v.  Hawker,  7  M.  &  W.  63,  10  L.  J.  (N.  S.)  Ex. 
153;  Wood  v.  LeadhUter,  13  M.  &  W.  838,  14  L.  J.  Ex.  161; 
Doe  d.  Freeland  v.  Burt,  1  T.  R.  701  (1  R.  R  367) ;  D^ison  v. 
Holliday,  1  H.  &  N.  631,  26  L.  J.  Ex.  227;  Rogers  v.    Taylor, 


654  MINES  AND  MINERALS. 


No.  19.  —  Bowbotham  ▼.  WUmm,  80  L.  J.  Q.  B.  68,  68. 


1  H.  &  K  706,  26  L  J.  Ex.  203 ;  Smart  v.  Morton,  5  El.  &  B.  30, 
24  L.  J.  Q.  B.  260. 

Hayes,  Serj.,  in  reply,  referred  to  The  Caledonian  Company  v. 
Sprott,  2  Macq.  Sc.  App.  449  (p.  6S6,post). 

M.  Smith  was  heard  to  comment  on  this  case,  which  had  then 
for  the  first  time  been  cited  in  reply. 
[*53]  *Lord  Wensleydale  (June  19)  moved  the  judgment  of 
the  House.  —  In  his  opinion  the  judgment  of  the  Court 
of  Queen's  Bench  was  right,  and  ought  to  be  afl&rmed.  It  was 
unnecessary  to  discuss  several  of  the  questions  raised  at  the  bar : 
whether  the  title  of  the  owner  of  the  surface  to  the  support  of 
the  subjacent  strata  was  a  mere  easement  or  a  legal  right  was 
immaterial  to  the  decision  of  this  case.  Primd  facie  the  owner  of 
the  surface  was  entitled  to  the  surface  and  all  below  it  ex  jure 
natures;  and  those  who  claimed  any  interest  in  the  minerals 
below  must  do  so  by  virtue  of  some  grant  or  conveyance  from  or 
through  him;  and  the  right  of  the  grantee  must  depend  on  the 
terms  of  the  deed.  As  they  were  to  be  enjoyed,  a  power  to  get 
them  was  a  necessary  incident  to  such  a  grant  Shep.  Touch,  put 
that  instance,  declaring  that  by  grant  of  mines  was  granted  the 
power  to  dig  them;  and  a  similar  presumption  arose  that  the 
owner  of  the  mines  was  not  to  injure  the  owner  of  the  soil  above 
if  it  could  be  avoided.  Grenerally  these  rights  were  governed  by 
deed  executed  between  the  parties ;  and  then  the  only  question 
was  as  to  the  construction  of  the  deed.  And  the  question  in  this 
case  was  one  of  a  similar  kind,  namely,  what  were  the  rights  of 
the  parties  upon  the  facts  stated  in  this  case  ?  The  origin  of  the 
right  of  both  parties  was  to  be  found  in  the  award  of  1770,  under 
the  private  enclosure  Act  for  the  common  fields  of  Bedworth. 
The  allottee  of  the  surface  had  received  a  larger  extent  of  surface 
as  compensation  for  the  minerals  not  being  given  to  him.  Each 
of  the  parties  had  full  notice  of  their  respective  titles  by  the  award 
itself ;  and  the  question  was,  what  were  the  powers,  and  what  the 
limitations  legally  annexed  to  their  respective  rights  ?  The  power 
of  the  commissioners  to  separate  the  minerals  from  the  surface 
was  denied.  He  was  of  opinion  that  they  had  that  power;  and 
consequently  the  commissioners  had  the  power  to  give  to  Howlette 
the  right  to  get  the  coal,  and  the  covenant  described  the  maimer 
in  which  that  power  should  be  exercised.  The  award,  then,  was 
valid,  and  Howlette  obtained  the  right  to  get  the  coal  in  a  manner 


R.  C.  VOL.  XVII.]        SECT.  IV.  —  RIGHTS   OF  SUPPORT.  655 

Ho.  19.  —  Bowbotham  v.  WUmh,  80  L.  J.  0-  B.  58,  64. 

which  would  render  the  surface  uneven ;  but  if  that  right  came 
not  from  the  award,  but  from  the  covenant,  then  the  covenant 
operated  as  a  grant,  and  Howlette  in  that  way  obtained  the  right 
to  get  the  minerals.  This  was,  no  doubt,  the  proper  subject  of  a 
grant,  as  it  affected  the  land  of  the  grantor :  it  was  analogous  to 
the  grant  of  right  to  damage  the  surface  by  making  a  way  over  it. 
No  particular  words  were  necessary  for  such  a  grant.  If  the 
words  used  only  amounted  to  a  covenant,  it  must  be  admitted 
that  such  a  covenant  would  not  affect  the  lands  in  the  hands  of 
the  assignee  of  the  covenantor;  but  they  would  do  so  if  they 
amounted  to  a  grant.  Therefore,  if  the  award  was  valid,  the 
plaintiff,  as  assignee  of  the  surface,  would  be  bound,  either  by  the 
order  of  the  commissioners  or  by  the  grant  He  thought  that 
the  commissioners  had  the  power  to  make  separate  allotments  of 
the  surface  of  the  mines,  because  the  Act  did  not  limit  them  to 
allot  both  together,  nor  show  that  anytliing  was  intended  incon- 
sistent with  the  separate  mode  of  allotment.  Such  might  be,  as 
had  been  properly  suggested  by  Mr.  Field  in  his  argument,  a  con- 
venient manner  of  arranging  the  interests  of  all  parties.  The 
private  Act  amounted  to  no  more  than  an  agreement  between  the 
parties,  sanctioned  by  the  Legislature,  and  in  order  to  construe  it 
surrounding  circumstances  might  be  looked  at;  and  the  award 
having  been  acted  on  for  ninety  years  intendment  was  to  be  made 
in  its  favour.  These  conditions  led  to  the  opinion  that  the  com-r 
missioners  had  the  power,  for  the  general  convenience,  and  exer- 
cised it  to  give  portions  of  the  surface  to  one,  and  the  mines  under 
each  of  such  portions  to  the  other ;  the  award  therefore  was  valid. 
Most  of  the  Judges  in  the  courts  below  seemed,  however,  to  have 
considered  it  bad ;  but  even  then  the  defendant  was  entitled  to 
judgment  The  right  to  the  surface  land  might,  after  ninety 
years'  enjoyment,  be  presumed  to  be  in  those  under  whom 
the  plaintiff  claimed,  and  a  legal  right  to  the  minerals,  with 
a  right  to  get  them,  by  a  legal  grant,  in  those  under  whom 
the  defendant  claimed.  But  this  right  could  not  be  exercised 
without  rendering  the  surface  uneven,  and  therefore  it  involved 
the  right  to  withdraw  a  certain  quantity  of  support  from  the 
surface,  and  to  do  the  damage  which  had  been  done,  and  which 
was  not  charged  as  being  done  by  negligence.  But 
*it  was  not  necessary  to  have  recourse  to  this  presump-  [*543 
tioiL     If  the   award  was  bad.   Pears  was  still  bound  by 


666  MINES  AND  MINERALS. 

Ko.  19.  — Bowbotkam  ▼.  Wilson,  80  L.  J.  (I.  B.  M. 

the  deed,  which  would  operate  as  a  grant ;  even  if  he  had  not  a 
legal  title  to  the  land  at  the  time  he  made  the  grant,  his  grant 
would  operate  from  the  time  of  his  acquiring  a  title  to  the  land. 
Trevivan  v.  Lawrence,  6  Mod.  258.  A  good  legal  title  would  there- 
fore be  obtained  after  twenty  years'  enjoyment  of  the  right  to  get 
the  coals.  If  the  plaintiff  had  a  right  to  the  support  of  the 
minerals  as  an  easement,  or  ex  jure  naturce,  the  covenant  operated, 
not  as  a  release  (Bonomi  v.  Backhouse),  but  as  a  grant  of  a  right 
to  disturb  the  surface ;  and  it  was  enough  to  decide  the  case  on 
that  ground.  The  circumstance  that  the  plaintiff  had  subse- 
quently built  houses  on  the  ground  made  no  difference.  The 
defendant  was  entitled  to  judgment.  —  His  Lordship  desired  to 
add,  that  Lord  BROUGHAAf,  who  was  unavoidably  absent,  entirely 
concurred  in  the  view  which  he  had  taken  of  the  case. 

Lord  Chelmsford  [after  stating  the  pleadings  and  the  facts, 
as  agreed  on,  said :  ]  —  It  was  denied  that  the  commissioners  had 
the  power  to  make  the  separation  of  the  mines  from  the  surface 
land.  He  had  no  doubt  of  the  existence  of  that  power  under  the 
Act.  But  it  was  immaterial  whether  their  award  was  valid  or 
not,  for,  upon  either  supposition,  there  was  the  covenant  of  Pears, 
which  was  sufficient  to  prevent  the  action  being  maintained. 
The  covenant  was  much  more  than  a  covenant  not  to  sue,  for 
Pears  expressly  declared  that  he  was  "willing  and  desirous  to 
accept  his  allotment,  subject  to  any  inconvenience  or  incumbrance 
which  may  arise  from  working  and  getting  the  mines."  The  word 
**  incumbrance "  here  really  signified  obstruction  or  impediment 
to  the  use  of  the  surface  land.  The  deed  was  correctly  construed 
as  a  grant  Pears  had  no  right,  except  from  the  allotment  of  the 
land;  that  right  passed  with  the  land,  but  did  not  possess  a 
separate  existence.  At  first,  he  thought  it  was  a  right  which 
might  be  released;  but  he  was  satisfied  that  the  view  taken  by 
his  noble  and  learned  friend,  Lord  Wensleydale,  founded  upon 
the  nature  of  the  right,  as  explained  in  the  case  of  Bonomi  v. 
Backhouee,  was  correct ;  and  that  it  was  not  a  right  which  could 
be  the  subject,  as  a  right,  of  a  grant  or  of  a  releasa  But  though 
the  thing  itself,  namely,  the  right  to  support,  could  not  be  the 
subject  of  grant,  nor  be  extinguished  by  release,  yet  the  covenant 
amounted  to  a  grant  of  a  right  to  do  acts  which  would  affect  that 
thing,  and  being  by  deed  it  was  in  that  form  valid  as  to  all  who 
held  the  surface  land  from  Pears.    The  effect  of  that  grant  was 


R.  C.  VOL.  XVn.]       SECT,  IV,  —  RIGHTS   OP  SUPPORT.  657 

Ko.  20.  —  Lore  v.  Bell,  9  App.  Cu.  286. 

to  give  a  right  to  work  the  mines  without  molestation,  even  to  the 
taking  away  the  support,  and  defacing  and  injuring  the  surface  of 
the  land,  which,  without  such  a  grant,  could  not  lawfully  have 
been  done.  He  therefore  agreed  that  the  judgment  of  the  Court 
below  ought  to  be  affirmed. 

Lord  KiNGSDOWN  quite  concurred. 

The  Lord  Chancellor  (Lord  Campbell),  as  he  had  not  heard 
the  case,  gave  no  judgment  in  it  But  he  felt  no  doubt  whatever 
as  to  the  correctness  of  the  judgment  which  had  been  delivered 
in  the  Court  over  which  he  formerly  presided. 

Judgment  affirmed,  with  costs. 


Love  and  another  v.  Bell  and  another. 

9  App.  Ca8.  286-302  (s.  c.  53  L.  J.  Q.  B.  257 ;  51  L.  T.  1 ;  32  W.  R.  725). 

IndoswreAd^  Construction  of, — Mines, — Manorial  Rights.  —  Support.  [286] 
— Damage  to  Surface.  —  Compensation. 

An  Indomire  Act  enacted  that  aUotments  should  be  made  to  the  persons 
haying  a  right  of  common  upon  the  waste  of  the  manor,  that  is,  to  the  owners  of 
every  separate  andent  dwelling-hoase  within  the  manor;  that  all  right  of  common 
should  be  extiuguished ;  aud  that  the  allotments  should  be  held  and  enjoyed  by  the 
allotees  by  the  same  tenure  and  estates  as  the  respective  dwelling-houses :  pro- 
vided that  nothing  should  prejudice,  lessen,  or  defeat  the  title  and  interest  of  the 
lords  of  the  manor  to  and  in  the  royalties,  but  that  the  lords  and  their  successors  as 
owners  of  the  royalties  should  for  ever  hold  and  enjoy  all  "  rents,  courts,  perquis- 
ites, profits,  mines,  power  of  using  or  granting  wayleave,  waifs,  estrays,  and  all 
other  royalties  and  jurisdictions  whatsoever"  to  the  owners  of  the  manor  apper- 
taining '*  in  as  full,  ample,  and  beneficial  manner  to  all  intents  and  purposes  as 
they  could  or  might  have  held  and  enjoyed  the  same  in  case  this  Act  had  not  been 
made."  Provided  further,  that  in  case  the  lords  or  any  persons  claiming  under 
them  should  work  any  mines  lying  under  any  allotment,  or  should  lay,  make,  or 
nse  any  way  or  ways  over  any  allotment,  such  persons  so  working  the  mines, 
or  laying,  making,  or  using  such  way  or  ways,  should  make  '^  satisfaction  for 
the  damages  and  spoil  of  ground  occasioned  thereby  to  the  person  or  persons 
who  shall  be  in  possession  of  such  ground  at  the  time  or  times  of  such  damage 
or  spoil;"  such  satisfaction  to  be  settled  by  arbitratiou  and  *'  not  to  exceed  the 
sum  of  £5  yearly  during  the  time  of  working  such  mines,  or  continuing  or  using 
such  way  or  ways,  for  every  acre  of  ground  so  damaged  or  spoiled." 

At  the  time  of  passing  the  Act  there  were  no  customs  which  enlarged  or  cut 
down  the  common-law  rights  of  the  lords  to  work  the  minerals  under  the  wastes 
of  the  manor.  Under  the  Act  an  allotment  was  made  in  1 772  to  a  commoner  in 
respect  of  an  ancient  freehold  dwelling-house.  At  that  time  no  house  had  heeu 
built  upon  the  allotment.  More  than  twenty  years  after  a  house  had  been  built 
upon  it,  the  minerals  underlying  it  were  worked  by  lessees  of  the  lords  of  the 
VOL.  XVII.  —  42 


658  MINES  AND  MINEBALS. 


Ko.  80.  —  Lore  ▼.  Bell,  9  App.  Cu.  286-288. 


manor  so  as  to  cause  the  surface  of  the  laud  to  subside,  whereby  the  house  was 
damaged  to  an  amount  exceeding  the  sum  recoverable  under  the  proviso.     The 

land  would  have  subsided  if  there  had  been  no  house.     An  action  for 
[*287]  damages  having  been  brought  *  against  the  lessees  by  the  allottee's 

successor  in  title  and  by  his  tenant  in  possession:  — 
Held,  affirming  the  decision  of  the  Court  of  Appeal,  that  upon  the  true  con- 
struction of  the  Act,  the  proviso  for  satisfaction  did  not  apply  to  damage  from 
subsidence ;  that  there  was  nothing  in  the  Act  giviug  the  lords  the  rigbt  to  let 
down  the  surface;  that  the  plaintiffs  were  entitled  to  have  the  house  and  land 
supported  by  the  minerals,  and  to  recover  damages  for  the  subsidence. 

Appeal  from  an  order  of  the  Court  of  Appeal. 

The  action  was  brought  by  the  respondents  against  the  appel- 
lants for  damages  caused  to  a  house  belonging  to  the  respondent 
Salvin  and  in  the  occupation  of  the  respondent  Bell  by  the  ap- 
pellants' mineral  working,  and  for  an  injunction  to  restrain  the 
appellants.  The  Court  of  Appeal  (Lord  Coleridge,  C.  J.,  Baggallay 
and  LiNDLEY,  L.  JJ.)  gave  judgment  for  the  plaintiffs,  affirming 
an  order  of  the  Queen's  Bench  Division  (Manisty  and  Williams, 
JJ.).  The  facts,  which  were  stated  in  a  special  case  for  the  opin- 
ion of  the  Court,  are  fully  set  out  in  the  report  of  the  decisions 
below,  (10  Q.  B.  D.  547).  All  the  facts  material  to  the  present 
report  are  stated  in  the  headnote. 

Feb.  28.  Sir  F.  Herschell,  S.  G.,  and  F.  M.  White,  Q.  C.  (John 
Edge  with  them),  for  the  appellants :  — 

The  respondents  are  entitled  to  no  more  compensation  than  that 
provided  by  the  Inclosure  Act ;  the  Act  expressly  providing  that 
the  mining  rights  of  the  lords  of  the  manor  to  work  the  mines 
should  be  exercised  as  fully  as  before  the  Act  Before  the  Act 
those  rights  were  unlimited  save  by  the  obligation  to  leave  enough 
pa«turage  for  the  commoners.  The  respondents  have  not  shown 
that  the  workings  would  have  infringed  on  the  rights  of  the 
commoners.  The  Act  did  not  contemplate  buildings  or  any  use  of 
the  surface  other  than  agricultural ;  but  construing  the  Act  most 
favourably  to  the  respondents,  there  must  be  some  limitation  to 
the  right  of  building ;  for  if  not  the  whole  ground  may  be  covered 
and  no  way  left  in  to  the  minerals  but  through  a  building.  The 
construction  put  by  the  Court  of  Appeal  upon  the  compensation 
clause  is  unsound  and  leads  to  strange  results ;  for  if  the 
[*  288]  compensation  be  intended  only  for  temporary  and  *  not  for 
permanent  damage,  there  is  no  compensation  or  redress  for 
sinking  shafts  or  any  "spoil  of  ground"  which  is  in  its  nature 


B.  C.  VOL.  XVII.]       SECT.  lY.  —  RIGHTS   OF  SUPPORT.  659 

Ko.  20.  —  Lore  v.  Bell,  9  App.  Ou.  288, 289. 

permanent.  Who  is  to  say  what  damage  is  "  temporary "  or 
"  slight "  ?  What  is  the  test?  This  shows  that  the  Act  intended 
the  compensation  to  be  applicable  to  all  damage  however  caused ; 
and  this  is  no  hardship  on  the  allottees,  who  are  as  well  ofif  as  they 
were  before  the  Act  in  their  capacity  as  commoners.  The  present 
is  substantially  the  same  case  as  Duke  of  Buccleuch  v.  Wakefield,  L. 
R  4  H.  L.  377,  which  the  Court  of  Appeal  did  not  effectually  dis- 
tinguish. Their  judgment  to  some  extent  relies  on  the  decision  in 
Blackett  v.  Bradley,  1  B.  &  S.  940,  31  L.  J.  Q.  B.  65,  which  was 
decided  only  on  the  authority  of  Hilton  v.  Earl  Granville,  5  Q.  B. 
701,  and  was  wrongly  decided,  as  was  held  in  GHll  v.  Dickinson, 
5  Q.  B.  D.  159.  The  primdi  facie  right  of  the  surface  owner  to 
support  may  be  taken  away  by  a  contract  or  an  Act.  Bowbotham 
V.  Wilson,  8  H.  L.  C.  348,  30  L.  J.  Q.  B.  49  [p.  647,  ante].  Inclosure 
Acts  are  to  be  regarded  as  contracts  between  parties,  and  so  con- 
strued. In  Bolerts  v.  Haines,  6  E.  &  B.  643.  7  E.  &  B.  625,  the 
language  was  very  different,  and  was  applicable  to  the  surface. 
Here  it  is  not  so:  the  language  points  to  what  is  under  the 
surface.    Aspden  v.  Seddon,  L.  R.  10  Ch.  395,  403. 

[Bylands  v.  Fletcher,  L.  R  3  H.  L.  330 ;  Dixon  v.  White,  8  App. 
Cas.  833 ;  Harris  v,  Byding,  5  M.  &  W.  60 ;  and  Smart  v.  Morton, 
5  E.  &  B.  30,  were  also  cited.] 

C.  Eussell,  Q.  C,  and  E.  Ridley,  for  the  respondents,  were  informed 
that  notice  would  be  given  if  the  House,  after  consideration,  desired 
to  hear  them. 

March  3.    Earl  of  Selborne,  L.  C.  :  — 

My  Lords,  the  authorities,  which  are  numerous,  from  Harris  v. 
Byding,  5  M.  &  W.  60,  and  Dugdale  v.  Bobertson,  3  Kay  &  J.  695, 
down  to  the  recent  case  of  Davis  v.  Trehame,  6  App.  Cas.  460, 
which  was  decided  in  this  House  in  1881,  have,  I  think, 
fully  established  the  general  law  applicable  to  the  *  case  [*  289] 
of  two  owners,  the  one  of  upper  strata,  or  the  surface  of  the 
ground,  the  other  of  lower  strata,  containing  minerals  which  are  to 
be  worked ;  and  perhaps  the  most  convenient  way  of  putting  the 
matter  will  be  to  read  a  few  words  from  the  opinion  given  by 
liord  Blackburn  in  Davis  v.  Trehame,  6  App.  Cas.  466 :  "  I  think 
it  must  be  taken  as  perfectly  settled  ground  that  as  of  common 
right  the  surface  land  has  a  right  to  be  supported  by  subjacent 
strata  of  minerals.  Although  that  is  common  right,  it  may  be 
shown  —  the  burden  lying  on  those  who  wish  to  show  it  —  that 


660  HIKES  AND  MINERALS. 

Ko.  20.  --Loire  ▼.  Bell,  9  App.  Om.  389,  880. 

the  person  who  has  got  the  surface,  obtained  it  either  upon  terms 
which  would  give  him  no  right  to  support,  he  having  accepted  it 
and  taken  it  upon  those  terms,  or  that  before  he  got  it  the  person 
from  whom  he  claims,  the  owner  of  the  surface,  had  parted  with 
the  right  of  support  from  below,  in  which  case,  of  course,  the  owner 
of  the  surface  could  be  in  no  better  position  than  the  person  who 
sold  it  to  him.  In  common  right  the  person  who  owns  the  sur- 
face has  a  right  to  have  it  properly  supported  below  by  minerals, 
and  if  there  are  mineral  workings  under  the  surface,  to  have  a 
proper  support  left  for  it  by  pillars."  Whoever  claims  against 
that  has  the  burden  of  proof  thrown  upon  him. 

In  the  same  case,  Davis  v.  Trehame,  6  App.  Cas.  467,  468,  two 
pages  later,  Lord  Blackburn  deals  with  the  question  which  there 
arose,  and  on  this  principle :  that  when  the  person  on  whom  the 
burden  of  proof  lies  has  to  satisfy  it,  he  will  not  be  able  to  do  so 
merely  by  showing  that  there  are  words,  however  large,  applicable 
to  the  right  of  working,  and  privileges  connected  with  it,  and  com- 
pensation to  be  paid  for  working  and  for  the  use  of  those  privi- 
leges, which  may  receive  full  effect  consistently  with  the  right 
of  support  I  will  not  refer  in  detail  to  that  passage :  it  is  in 
accordance  with  what  is  to  be  found  in  other  authorities. 

Starting  with  these  principles  we  have  to  consider  this  particu- 
lar casa  It  is,  I  may  say,  an  ordinary  case  of  inclosure  of  open  or 
common  lands,  where  the  lord  of  the  manor  has  certain  rights : 
the  right  to  the  soil,  and  of  course  the  right  to  the  minerals  below 
it,  and  the  commoners  have  certain  surface  rights.  The  i^cital  is, 
that  by  the  inclosure  this  tract  of  waste  ground  which  then 
[*  290]  yielded  little  profit  might  become  "  capable  of  *  considera- 
ble improvement."  I  shall  have  occasion  to  refer  to  that 
afterwards  in  connection  with  an  argument  which  was  suggested, 
that  no  improvement  except  by  using  the  inclosed  ground  for 
agricultural  purposes  could  be  supposed  to  have  been  in  contem- 
plation. It  goes  on  to  allot  to  the  lords  in  severalty  certain  plots 
and  parcels  of  ground.  Whether  it  be  more  or  less  that,  upon  the 
inclosure,  is  allotted  to  the  lords  can  make  no  difference ;  it  is 
equally  a  case  of  mutual  considerations  resulting  in  the  apportion- 
ment of  land  to  which  the  parties  may  be  taken  to  have  agreed, 
or  have  had  determined  for  them  by  the  authority  which  made  the 
award.  If  it  were  needful  to  draw  any  inference  from  the  fact 
that  the  greatest  part  of  the  land  seems  to  have  been  allotted  to 


B.  C.  VOL.  XVIL]      sect.  IV.  —  RIGHTS   OF  SUPPORT.  661 

Ho.  20.  —  Lore  ▼.  BeU,  9  App.  Ou.  890,  891. 

the  commoners,  and  a  comparatively  small  part  (if  such  is  the 
fact)  to  the  lords,  the  dean  and  chapter,  the  inference  would  be 
that  the  rights  of  the  commoners  in  this  case  were  very  substan- 
tial, and  that  the  rights  of  the  dean  and  chapter,  so  far  as  the 
surface  was  concerned,  at  all  events,  were  small  in  comparison 
with  them.  However,  that  is  not  important.  Then  there  follows 
the  allotment  of  the  residue  to  the  commoners  in  respect  of  the 
houses,  some  freehold,  some  leasehold,  to  which  the  rights  of  com- 
mon had  been  appurtenant  or  appendant,  and  they  are  to  hold  the 
allotted  lands  upon  the  same  tenure  on  which  they  held  those 
houses.  The  particular  allotment  in  question  being  in  respect  of 
a  freehold  house  is  a  freehold  allotment,  and  we  have  to  deal 
therefore  with  a  freeholder  having  the  ordinary  rights  of  a  free- 
holder to  his  allotment,  except  so  far  as  there  is  anything  in  this 
Act  to  make  them  less  than  the  ordinary  rights. 

The  question,  whether  there  is  or  is  not  anything  of  that  kind 
in  the  Act,  depends  entirely  upon  the  clause  of  reservation  in 
favour  of  the  lords  of  certain  rights,  and  the  proviso  which 
follows  that  clause  of  reservation.  The  reservation,  though  it 
includes  mines,  is  by  no  means  confined  to  them ;  it  is  plainly  a 
reservation  of  the  pre-existing  interest  of  the  lords  in  the  manorial 
rights  and  royalties,  and  rights  also  in  the  soil  which  previously 
belonged  to  them  as  lords  of  the  manor.  It  says,  that  nothing  in 
the  Act  **  shall  prejudice,  lessen,  or  defeat"  their  "  right,  title,  and 
interest "  to  these  things ;  but  they  and  their  successors  "  shall  and 
may  at  all  times  for  ever  hereafter  hold  and  enjoy  all 
rents,  *  courts,  perquisites,  profits,  mines,  power  of  using  [*  291] 
or  granting  wayleave,  waifs,  estrays,  and  all  other  royalties 
and  jurisdictions  whatsoever,  to  the  owner  or  owners  of  the  said 
manor,  barony,  or  borough,  incident,  appendant,  and  belonging  or 
appertaining  (other  than  and  except  such  right  of  common  as 
could  or  might  be  claimed  by  them  as  owners  of  the  soil  and 
inheritance  of  the  said  moor  or  common  so  to  be  enclosed  as 
aforesaid)  in  as  full,  ample,  and  beneficial  manner  to  all  intents 
and  purposes  as  they  could  or  might  have  held  and  enjoyed  the 
same  in  case  this  Act  had  not  been  made."  So  far,  we  have  noth- 
ing but  reservation  of  pre-existing  rights,  and  that  not  in  terms 
specially  applied  to  mines  and  minerals  although  including  them, 
—  not  in  terms  from  which  an  intention  to  deal  specifically  with 
powers  connected  with  those  mines  and  minerals  can  be  inferred. 


662  MINES  AND  MINERALS. 


Ho.  20.  —  Lore  v.  Bell,  9  App.  Ou.  391,  298. 


—  but  in  terms  which  are  as  much  applicable  to  anything  else 
mentioned  as  they  are  applicable  to  mines;  no  doubt  not  less 
applicable  to  mines,  than  to  the  other  things  which  are  mentioned. 

What  is  there  in  that  clause  of  reservation  which  can  possibly 
be  relied  on  as  depriving  the  freeholder  to  whom  an  allotment  has 
been  made  of  the  right  of  support  to  his  freehold?  The  only 
words  which  have  been  insisted  upon  as  capable  of  having  that 
effect  are  the  words,  "  in  as  full,  ample,  and  beneficial  manner  to 
all  intents  and  purposes  as  they  could  or  might  have  held  and 
enjoyed  the  same"  (which  means,  as  I  understand  it,  held  and 
enjoyed  those  rights,  titles,  and  interests  which  are  reserved)  "  if 
this  Act  had  not  been  made."  Applying  that  to  the  mines, 
although  it  is  not  more  applicable  to  the  mines  than  to  any  other 
subject,  I  quite  agree  that  it  at  least  carries  so  much  as  this,  that 
they  were,  with  the  mines,  to  have  all  usual  powers  and  surface 
privileges  for  working  them.  Supposing  in  the  clause  of  reserva- 
tion these  words  had  been  expressly  inserted, "  reserving  the  mines 
and  minerals  with  all  usual  powers  and  surface  privileges  for 
working  them,"  would  that  have  given  a  right  to  let  down  the  sur- 
face ?  Would  that  have  destroyed  the  freeholder's  right  of  sup- 
port? I  apprehend  that  it  clearly  would  not  As  was  pointed 
out  in  the  case  referred  to  at  the  bar,  Duke  of  Buccleuch  v.  Wake- 
field, L.  R  4  H.  L.  377,  it  is  impossible  to  understand 
[*  292  J  such  words  as  *  reserving  the  previous  rights  of  working 
exactly  as  they  were  without  reference  to  the  fact  that  an 
inclosure  had  been  made,  and  as  if  the  rights  of  common  still  con- 
tinued to  exist,  and  the  rights  of  working  were  subject  to  the 
rights  of  common.  The  right  given  by  those  words  must  in  that 
respect,  although  it  is  still  a  right  to  be  held  and  enjoyed  in  a  full, 
ample,  and  beneficial  manner,  nevertheless  be  a  right  to  be  held 
and  enjoyed  by  the  lord  after  inclosure,  and  against  the  owners  of 
allotments,  and  no  longer  as  against  commoners. 

But  let  us  consider  what  was  the  nature  of  the  enjoyment  which 
existed  before  the  inclosure.  I  apprehend  that  before  the  inclosure, 
as  much  as  afterwards,  the  lords,  in  the  exercise  of  their  powers 
as  to  the  minerals,  were  subject  to  the  principle  sic  utere  tuo  ut 
alienum  non  Icedas.  They  had  not  a  right  of  working  paramount 
to  the  surface  rights  of  the  commoners,  they  had  only  a  right  of 
working  subject  to  the  surface  rights  of  the  commoners,  and  any 
working  which  would  substantially  interfere  with  those  surface 


R.  C.  VOL.  XVIL]       sect.  IV.  —  KIGHTS  OF  SUPPORT.  663 

Ko.  20.  —  Loyo  v.  Bell,  9  App.  Cat.  293,  298. 

rights  would  have  been  an  unlawful  working,  and  might  have 
been  restrained  at  the  suit  of  the  commoners.  The  only  ground 
for  saying  that  they  might  lawfully  from  time  to  time  have  let 
down  portions,  and  perhaps  ultimately  the  whole,  of  the  surface  is 
this :  that  they  might  have  done  so  without  injuring  the  surface 
rights  of  the  commoners.  They  would  not  then  have  infringed 
upon  the  principle  sic  utere  t%u)  ut  alienum  non  Icedas,  No  dam- 
num, no  injury  would  have  been  suffered  by  the  commoners,  and 
therefore  the  lords  might  have  been  subject  to  no  action,  and  to  no 
restraint  But  now  the  commoners,  giving  up  the  whole  of  their 
common  rights,  take  in  lieu  of  them  these  allotments.  Why 
should  not  the  lord  in  his  altered  position  with  his  reserved  rights 
be  subject  in  respect  of  those  allotments  to  the  principle  sic  utere 
tuo  ut  alienum  non  la^das  in  its  full  extent,  as  much  as  he  was 
before  ?  I  quite  agree  with  what  Baggallay,  L.  J.,  in  the  Court 
of  Appeal  suggested  on  that  subject  (10  Q.  B.  D.  566);  namely, 
that  the  substituted  rights  are  not  given  with  power  to  the  lord  to 
take  them  away,  which  he  could  not  have  done  with  regard  to  the 
original  rights,  and  that  this  reservation,  if  it  stood  alone, 
must  be  construed  subject  to  the  *  surface  rights  of  the  [*  293] 
person  to  whom  the  allotments  had  been  made. 

Then  we  come  to  the  words  of  the  proviso.  Now  I  quite  agree 
that  we  should  not  be  fettered  by  form  if  we  find  in  substance  in 
the  proviso  something  tending  either  to  enlarge,  or  to  explain  in 
such  a  way  as  to  enlarge,  the  effect  of  the  reservation ;  but  still  we 
must  approach  that  proviso  with  due  regard  to  the  fact,  that  what 
we  have  already  seen  is  a  reservation  only,  not  a  grant,  by  Act  of 
Parliament  or  otherwise,  of  privileges  which  a  mere  reservation 
would  not  have  conferred ;  and  that  this  proviso  which  follows 
has  for  its  office  to  deal  with  the  compensation  to  be  made  for  the 
exercise  of  the  reserved  rights,  so  far  as  relates  to  those  two  par- 
ticular subjects  by  which  the  surface  might  possibly  be  affected ; 
namely,  the  working  of  the  mines  and  the  power  of  granting  or 
using  wayleaves,  two  subjects  which  throughout  this  proviso  are 
separately  kept  in  view. 

It  appears  to  me  that  here  the  principles  already  mentioned 
throw,  at  all  events  as  strongly  as  before,  upon  the  appellants  the 
duty  of  showing  that  there  are  words  which  dispense,  in  their 
favour,  with  the  general  rule  of  law,  and  give  them  a  right  to  let 
down  the  surface  and  deprive  the  surface  owner  of  his  ordinary 


664  MIKES  AND  MINERALS. 

Ho.  20.  —Lore  v.  BeU,  9  App.  Om.  808,  2M. 

right  of  support.  I  can  find  no  such  words.  It  is  contended, 
however,  that  the  usual  powers  of  working  mines  do  involve  some 
right  of  interference  with  the  surfcoce ;  and  that  is  contemplated 
by  this  proviso.  But  why  should  more  be  supposed  to  be  coutem- 
plated  ?  What  word  is  there  which  shows  more  than  this,  that  it 
is  contemplated,  that  in  the  working  of  mines,  as  well  as  in  the 
use  of  wayleaves,  there  may  be  some  interference  with  the  sur- 
face, in  respect  of  which  compensation  is  to  be  made  ?  That  would 
necessarily  follow  from  the  usual  powers  of  working;  but  this 
consequence  which  is  now  sought  to  be  established  would  not 
follow  from  the  usual  powers  of  working.  Why,  therefore,  should 
it  be  supposed  to  follow,  because  the  efi'ects  on  the  surface  which 
are  contemplated  are  provided  for  by  way  of  compensation  ?  The 
whole  proviso,  in  my  opinion,  is  satisfied  by  ordinary  surface  dam- 
age, such  as  might  arise  from  the  exercise  of  usual  working  powers. 
The  more  the  detail  is  examined,  the  more  strongly  am 
[*  294]  I  led  *  to  the  aflirmative  conclusion  that  this  is  what  was 
meant,  and  all  that  was  meant.  The  detail  tends  to  repel, 
instead  of  to  support,  the  appellant's  construction.  First  of  all,  it 
refers  to  the  working  of  the  "  mines  lying  within  or  under  any  of 
the  allotments,*'  and  to  "  satisfaction  for  the  damages  and  spoil  of 
ground  occasioned  thereby."  I  pause  for  a  moment  to  observe 
that  the  word  "ground"  occurs  four  times  over  in  the  passage; 
and  it  strikes  me,  to  say  the  least,  without  dwelling  too  much 
upon  it,  as  indicating  ordinary  surface  damage  to  the  surface  of 
the  ground,  and  not  at  all  damage  such  as  might  happen  in  the 
case  of  buildings,  with  which  we  are  now  dealing.  Therefore  it 
confirms,  as  far  as  it  goes,  the  view  which,  as  I  have  said,  I  take  of 
the  clause  as  a  whole. 

But  that  is  not  all;  for  who  is  to  receive  this  compensation? 
"  The  person  or  persons  in  possession  of  such  ground  at  the  time 
or  times  of  such  damage  or  spoil."  It  is  manifest  that  the  Legis- 
lature thought  that  compensation  ought  to  be  made,  and  to  the 
proper  person.  But  is  it  to  be  for  a  moment  imagined  that  in  the 
case  with  which  we  are  dealing,  of  injury  to  buildings  erected 
upon  the  ground,  which  by  possibility  might  be  entirely  destroyed, 
justice  would  be  done  by  giving  the  compensation  not  to  every- 
body injured,  nor  to  the  person  chiefly  injured,  who  would  be  the 
owner  of  the  freehold,  but  to  his  tenant,  to  the  person  who  might 
happen  to  be  in  possession  at  the  time  when  the  damage  was  done? 


K.  C.  VOL.  XVII.]       SECT.  IV.  —  BIGHTS  OF  SUPPORT.  665 

Ho.  80.~L070  T.  Bdl,  9  App.  Ou.  894,  895. 

There  is  then  a  limit,  which  limit  is  measured  by  the  yearly  value 
of  "£5  for  every  acre  of  ground  so  damaged  or  spoiled/'  —  a 
reasonable  limit  enough,  probably,  for  such  surface  damage  as 
might  arise  from  the  exercise  of  ordinary  powers,  which  would  not 
extend  to  the  destruction  of  the  surface,  or  of  the  buildings  upon 
it,  but  to  my  apprehension,  a  most  improper,  a  most  unreasonable, 
and  a  most  unjust  limit  if  it  had  been  intended  to  take  away  the 
ordinary  right  of  support  It  was  said  upon  this,  "  Oh,  but  it  was 
never  contemplated  that  there  would  be  any  buildings  at  all  upon 
that  ground  —  it  does  not  appear  that  there  were  any  at  the  time, 
and  therefore  we  are  to  infer  that  the  sort  of  improvement  contem- 
plated by  the  Act  was  the  conversion  of  this  moor-land  into 
agricultural  land  and  nothing  more."  But  is  it  not  ex- 
travagant to  suppose  that  that  was  the  only  possible  *im-  [*  295] 
provement  of  this  land,  there  being  no  restriction  whatever 
upon  the  mode  of  improvement  which  the  persons  into  whose 
hands  it  might  come  might  think  expedient  ?  The  very  principle 
of  improvement  by  inclosure  is  that  the  land  should  be  improved, 
to  the  extent  of  its  capacity,  by  those  persons  who  have  the 
altered  tenure,  and  who  would  have  an  interest  in  improving  it. 
Even  if  it  had  been  let  as  agricultural  land,  we  are  not  to  assume 
that  it  was  all  let  out  to  neighbouring  farmers  who  had  already 
sufficient  farm  buildings  for  all  purposes  of  agricultural  cultivation. 
Even  upon  that  hypothesis  it  cannot  be  imagined  that  it  was  out 
of  contemplation  in  this  improvement  that  there  might  be  a  resi- 
dence for  a  farmer,  a  suitable  house  for  him  to  live  in,  with  stables, 
yards,  and  proper  out-buildings,  the  damage  to  which  buildings 
would  be  of  a  very  serious  kind,  in  no  degree  compensated  under 
this  clause.  But  the  truth  is  that  there  is  no  ground  for  any  such 
contention.  The  neighbourhood  of  the  mineral  works  might  make 
it  a  convenient  and  profitable  mode,  in  using  the  land,  to  erect 
upon  it  cottages  for  persons  employed  in  the  mines ;  or  the  owner 
might  wish  to  reside  near  the  mines,  and  therefore  erect  a  house 
for  himself.  Consequently,  it  is  clear  that  we  must  take  into 
account  damage  to  buildings  as  well  as  other  things.  For  damage 
to  buildings  this  mode  of  compensation  would  be  quite  inappropri- 
ate ;  but  it  would  not  be  necessary  if  the  right  of  support  exists. 

No  authority  whatever  was  cited  in  support  of  the  appellants' 
argument  except  the  case  of  Duke  of  Bucclmch  v.  Wakefield,  L.  R. 
4  H.  L.  377,  382,  which  appears  to  me  to  differ  from  the  present 


666  MINES  AND   MINERALS. 


Ko.  80.  —Lore  ▼.  Bell,  9  App.  Cu.  8M,  896. 


in  every  material  particular.  In  the  first  place,  the  words  to  be 
construed  there  were  not  words  occurring  in  an  enumeration  of 
various  rights  reserved  of  diflferent  kinds,  but  they  were  words 
having  direct  and  special  application  to  the  subject  of  mines, 
minerals,  and  mineral  working;  and  in  connection  with  that  it 
was  said  that  the  lord  was  to  retain  his  former  status  and  to 
exercise  his  powers,  not  simply  "  in  the  same  way  as  if  the  Act 
had  not  been  made"  (which  words  occur  here),  but  the  words 
were  very  emphatic  and  very  remarkable,  namely,  in  the  same 

way  as  "  if  the  lands  had  remained  open  and  uninclosed, 
[*  296]   or  this  Act  had  not  been  passed ;  "  *  that  is  to  say,  that 

for  the  purpose  of  giving  eflfect  to  the  reservation  in  the 
lord's  favour,  and  the  rights  expressly  conferred  upon  the  lord  by 
the  Inclosure  Act,  the  hypothesis  of  the  lands  remaining  in  an 
uninclosed  state  was,  as  between  him  and  the  surface  owner, 
established  by  the  Act ;  and  that  was  pointed  out  as  one  of  the 
reasons  for  the  conclusion  which  was  arrived  at  by  one  of  the 
noble  and  learned  Lords  who  then  advised  the  House.  But, 
secondly,  there  was  not  in  that  case  a  mere  reservation,  but  there 
were  words  operating  by  themselves  to  confer,  by  the  authority  of 
the  Legislature,  upon  the  lord,  in  respect  of  the  exercise  of  those 
reserved  rights,  a  great  number  of  privileges  expressly  enumerated, 
and  aflfecting  the  surface,  which  might  or  might  not,  but  probably 
would  not,  have  followed  from  a  mere  reservation.  And  Lord 
Hatherley,  in  advising  the  House  as  to  its  judgment,  said  that 
the  enumeration  of  those  rights,  granted  and  not  merely  reserved 
by  the  Act  of  Parliament,  was  the  reason  which  mainly  weighed 
upon  his  mind  in  leading  him  to  the  conclusion  to  which  he  came, 
he  finding  in  those  words,  not  indeed  in  express  language  a  power 
to  let  down  the  surface,  but  what  he  thought  was  practically 
equivalent  to  it,  namely,  a  power  totally  and  permanently  to 
destroy  the  surface,  and  to  take  away  the  beneficial  enjoyment  of 
any  part  of  it  from  the  persons  to  whom  the  allotments  had  been 
made.  And,  thirdly,  there  was  there  (which  was  also  much  and 
justly  relied  upon)  an  absolute  and  unqualified  clause  of  compen- 
sation; so  that  whatever  might  be  the  extent  of  the  damage 
sustained,  full  reparation  for  that  damage  would  be  made  to  who- 
ever might  be  the  person  who  sustained  it.  All  those  things  were 
relied  upon,  and  all  formed  ingredients  in  that  judgment,  but  all 
are  absent  here. 


R.  C.  VOL.  XVII.]      SECT.  IV.  —  BIGHTS   OF  SUPPORT.  667 

Ko.  20.  ^LoTe  ▼.  BaU,  9  App.  Cu.  296,  297. 

I  need  say  no  more,  but  I  move  your  Lordships  to  affirm  the 
judgment  appealed  from,  and  to  dismiss  the  appeal  with  costs. 

Lord  Watson:  — 

My  Lords,  the  respondents  are  the  owner  and  tenant  of  a  parcel 
of  a  moor  or  waste  within  the  manor  of  Elvet,  allotted  to  the 
predecessor  in  title  of  the  former,  by  statutory  commissioners 
acting  under  an  Inclosure  Act  of  1772,  in  respect  of,  or  as  appur- 
tenant to  his  ancient  freehold  dwelling-house  within  the 
*  manor ;  and  the  Act  provides  that  such  parcels  of  land  *  [297] 
shall  be  "  held  and  enjoyed"  by  the  allottees,  "in  the  same 
manner"  and  by  the  same  tenure  as  the  dwelling-houses,  in  respect 
of  which  the  allotment  was  made,  were  then  holden.  The  appel- 
lants are  mineral  lessees  under  the  Dean  and  Chapter  of  Durham, 
the  lords  of  the  manor  of  Elvet,  to  whom  are  reserved,  by  the 
express  terms  of  the  Act,  all  mines  within  the  limits  of  the  divided 
waste,  with  power  to  work  the  same. 

The  respondents,  being  thus  in  right  of  the  surface,  are  entitled 
to  have  it  supported  by  the  subjacent  strata,  unless  the  appellants 
can  show  that,  by  the  terms  of  the  statutory  reservation  in  their 
favour,  the  lords  of  the  manor  have  the  right  to  let  it  down,  in 
the  course  of  their  mineral  workings.  The  principles  of  law 
applicable  to  a  case  like  the  present  are,  in  my  opinion,  precisely 
the  same  with  those  which  govern  the  mutual  rights  of  the 
respective  owners  of  the  surface  and  of  the  minerals  below,  when 
the  plenum  dominmm  of  the  land  has  been  split  into  these  two 
estates,  by  grants  proceeding  from  a  common  author. 

The  Act  of  1772  declares  that  nothing  therein  contained  shall 
prejudice  the  title  or  interest  of  the  dean  and  chapter  in  and  to 
the  "  royalties  "  incident  to  the  manor ;  but  that  they  and  their 
successors  shall  ever  thereafter  "  hold  and  enjoy  "  {inter  alia)  all 
"  mines,"  and  that  in  as  "  full,  ample,  and  beneficial  manner  to 
all  intents  and  purposes  as  they  could  or  might  have  held  and 
enjoyed  the  same  in  case  this  Act  had  not  been  made."  After 
the  judgment  of  this  House  in  Duke  of  Buecleuch  v.  Wakefield, 
L.  R  4  H.  L.  377,  an  authority  upon  which  the  appellants  rely,  I 
think  it  is  impossible  to  hold  that  a  reservation  expressed  in  these 
terms  is,  per  se,  sufficient  to  give  the  lords  of  the  manor  a  right 
to  work  their  minerals  so  as  to  let  down  the  surface.  In  Duke  of 
Buecleuch  v.  Wakefield,  Lord  Chelmsford  said  that  the  Duke 
''  must  establish  his  right  to  work  his  mines,  notwithstanding  the 


668  MINKS  AND  MINERALS. 

Ko.  80.  — Loire  ▼.  Bell,  9  App.  Om.  287,  886. 

inevitably  injurious  consequence  to  the  respondents'  surface,  by 
proof  either  of  a  custom  within  the  manor,  or  of  an  authority 
derived  from  the  Act  for  inclosing  the  wastes  of  the  manor." 
Here  the  existence  of  such  a  custom  within  the  manor,  as  would 

sustain  the  right  asserted  by  the  appellants,  is  negatived  in 
[*  298]  the  *  joint  case  for  the  parties.     It  was  no  doubt  decided 

in  Duke  of  Bucdmch  v.  Wakefield,  L.  R.  4  H.  L.  377,  406, 
that  his  Grace  had  the  right  which  he  claimed,  under  the  pro- 
visions of  the  special  Inclosure  Act ;  but  there  the  clause  of  reser- 
vation, besides  expressly  authorising  a  great  variety  of  enumerated 
operations,  both  above  and  below  ground,  some  of  which  involved 
the  disturbance,  if  not  the  destruction,  of  the  surface,  concluded 
with  a  general  power  to  the  mine  owner  to  do  all  further  and  other 
acts  whatever  for  getting  the  said  mines  and  minerals,  and  carry- 
ing on  the  works  thereof,  and  disposing  of  and  carrying  away  the 
same,  in  as  full  and  ample  a  manner  as  if  the  lands  had  remained 
open  and  uninclosed,  or  the  Act  had  not  been  passed. 

The  terms  of  the  reservation  to  the  Dean  and  Chapter  of 
Durham  present  a  marked  contrast  to  the  broad  and  comprehen- 
sive terms  of  the  clause  with  which  the  House  had  to  deal  in 
Duke  of  Bticcleuch  v.  Wakefield,  a  clause  which,  to  use  the  words 
of  Lord  Hatherley,  conferred  the  "largest  imaginable  power" 
upon  the  owner  of  the  mines ;  yet  in  that  case  the  decision  of  the 
House  was  given  in  his  favour,  not  because  the  clause  per  se 
enabled  him  to  work  so  as  to  cause  subsidence,  but  in  respect  that 
its  powers  were  made  subject  to  the  condition  that  those  who 
worked  the  mines,  should  make  full  compensation  for  all  injury 
thereby  occasioned  to  the  owners  of  the  surface.  I  concur  in  the 
opinion  expressed  by  Mellish,  L.  J.,  in  ffext  v.  Gill,  L.  B.  7  Ch. 
717,  that  "no  one  can  read  the  judgment  without  coming  to  the 
conclusion  that,  if  the  provision  as  to  compensation  had  not  been 
there,  the  House  of  Lords,  notwithstanding  the  strength  of  the 
other  words,  would  in  all  probability  have  come  to  another  con- 
clusion." But  the  contrast  between  the  compensation  clauses  in 
that  case  and  the  present  is  also  very  marked.  There  every  person, 
whose  interest  in  the  surface  was  injuriously  aflfected,  was  to  be 
fully  indemnified.  Here,  under  the  Act  of  1772,  no  one  is  to 
receive  compensation,  except  the  occupant  of  the  surface  for  the 
time  being ;  the  amount  of  compensation  payable  is  restricted  to 
£5  per  annum  for  each  acre  of  surface  damaged ;  and  all  liability 


R,  C.  VOL.  XVII.]        SECT.  IV.  —  RIGHTS  OP  SUPPORT.  669 

Ho.  90.  — Lore  t.  Bell,  9  App.  Cat.  999,  999. 

on  the  part  of  the  mine  owner  to  pay  that  restricted  sum  ceases 
the  moment  he  desists  from  working.  Ko  compensation 
is  provided  *  to  the  owner  of  the  surface,  who  is  not  in  [*  299] 
the  personal  occupation  of  it,  during  the  time  of  working, 
though  his  property  may  be  permanently  injured ;  and,  even  if  he 
does  occupy  himself,  he  is  not  to  be  compensated  for  any  damage 
accruing  (as,  for  instance,  from  subsidence)  after  the  workings  have 
ceased.  A  compensation  clause,  in  these  terms,  so  far  from  sug- 
gesting or  supporting  the  inference  that  the  mine  owner  was  to 
have  power  to  let  down  the  surface,  points  to  the  very  opposite 
conclusion. 

I  think  it  must  always  be  presumed  that  a  clause  providing 
compensation  was  intended  to  cover  the  damage  resulting  to  the 
landowner  from  the  exercise  of  the  powers  previously  reserved 
or  granted  to  the  owner  of  the  mines.  It  is  not  the  proper  office, 
nor  is  it  presumably  the  intention  of  such  a  clause,  to  define  or 
extend  the  powers  given  to  the  mine  owner ;  and  it  is  frequently 
6b  majorem  cautdam,  and  in  the  interest  of  the  landowner, 
expressed  in  comprehensive  terms,  so  as  to  include  every  species 
of  damage  which  may  result  from  operations  which  are  consistent 
with  giving  support  to  the  surface.  The  clause  may,  nevertheless, 
be  so  expressed  as  to  explain  the  character  and  extent  of  these 
powers,  as  was  the  case  in  Aspden  v.  Seddon,  L.  R  10  Ch.  394, 
where  the  power  reserved  to  the  mine  owner  was  to  work  the 
subjacent  minerals  without  entering  upon  the  surface  of  the  lands. 
That  power  would  not,  of  itself,  have  warranted  letting  down  the 
surface ;  but  it  was  made  subject  to  the  condition  that  the  person 
working  the  mines  should  pay  for  all  damages  to  erections  on  the 
surface  occasioned  by  the  exercise  of  the  reserved  power.  Entry 
on  the  land  being  prohibited,  it  was  a  reasonable,  if  not  a  neces- 
sary, inference  in  that  case,  that  the  kind  of  underground  working, 
contemplated  and  sanctioned,  was  such  as  would  cause  subsidence 
and  injure  buildings  erected  on  the  surface.  But  any  such  infer- 
ence derived  from  the  terms  in  which  compensation  is  provided, 
must,  in  my  opinion,  be  plain  and  unequivocal :  otherwise  general 
words,  which  were  only  meant  to  include  every  possible  injury 
that  could  be  caused  by  working  without  disturbance  of  the 
surface,  might  be  construed  as  a  power  to  let  it  down. 

I  agree  with  your  Lordships  that  the  judgment  appealed  from 
ought  to  be  affirmed. 


670  MINES  AND   MINERALS, 


Ho.  80 —  I«7e  Y.  Bell,  9  App.  Cu.  800,  801. 


[*  300]       *  Lord  Bramwell  :  — 

My  Lords,  I  also  am  of  opinion  that  this  judgment 
should  be  alBfirmed.  Before  the  inclosure  award  the  dean  and 
chapter  were  owners  of  the  soil,  the  surface,  and  all  on  it  and 
under  it,  —  subject  indeed  to  a  right  of  common,  the  existence  of 
which,  however,  seems  to  me  immaterial  By  that  Act  and  the 
award  they  ceased  to  be  owners  of  the  soil  generally,  but  remained 
owners  of  the  minerals.  If  there  had  been  nothing  more  in  the 
Act,  the  dean  and  chapter  would  have  had  no  right  to  touch  the 
surface  to  get  the  minerals.  And  if  all  the  right  the  Act  gave 
them  was  to  use  such  part  of  the  surface  as  was  necessary  to  get 
the  minerals,  they  would  have  no  right  in  getting  them  to  let 
down  the  surface.  In  other  words,  when  the  ownership  of  the  soil 
generally  and  of  the  minerals  is  severed,  the  mineral  owner  has 
no  rights  as  against  the  surface  in  getting  the  minerals  except 
what  the  instrument  of  severance  gives  him,  and  if  it  gives  the 
right  to  get  the  minerals  without  more,  there  is  no  right  to  let 
down  the  surface.  This  is  well  put  —  indeed  the  subject  generally 
and  the  questions  that  arise  in  this  case  are  very  well  treated  — 
in  MacSwinney  on  Mines,  Quarries,  and  Minerals,  pp.  293  to  334. 
The  appellants  in  this  case  say  that  rights  are  given  to  the 
dean  and  chapter  by  the  Inclosure  Act  not  only  to  interfere  with 
the  surface  to  get  the  minerals,  but  also  to  let  it  down,  and  they 
rely  on  the  general  words  that  the  dean  and  chapter  are  to  "  hold 
and  enjoy  the  mines  in  as  full,  ample,  and  beneficial  manner  as 
they  could  or  might  in  case  this  Act  had  not  been  made."  I 
cannot  agree.  For  it  is  clear  to  me  that  that  does  not  relate  to 
working,  but  to  property.  The  section  begins  that  the  title  of 
the  dean  and  chapter  to  the  royalties  incident  or  belonging  to 
the  manor  shall  not  be  prejudiced,  lessened,  or  defeated  by  any- 
thing in  the  Act,  "but  that"  they  as  owners  of  the  royalties 
shall  hold  and  enjoy  all  rents,  mines,  &c.,  to  the  owners  of  the 
manor  incident,  belonging,  or  appertaining.  This  relates  to  prop- 
erty. The  power  of  working,  so  far  as  given,  is  in  the  next 
section.  Supposing  that  the  previous  section  would,  without  the 
subsequent,  give  the  right  claimed,  it  would  give  it  without  com- 
pensation. But  the  subsequent  section  being  there  shows 
[*  301]  *  what  is  to  be  compensated,  and  consequently  limits 
the  meaning  which  the  former  section  might  have  if  it 
stood  alone. 


B.  C.  VOL.  XVIL]      sect.  IV.  —  RIGHTS   OF  SUPPOET.  671 

Ko.  90.  — Love  v.  BeU,  9  App.  Cu.  801,  803. 

The  appellants  further  say  that  the  power  is  to  be  found,  not 
indeed  in  express  words,  but  as  the  result  of  the  provisions  for 
compensating  the  owner  which  it  is  said  include  all  kinds  of 
damage,  and  therefore  subsidence,  I  do  not  know  if  the  ante- 
cedent probabilities  are  in  favour  of  the  respondents  or  the  appel- 
lants. If  the  appellants  are  right,  inasmuch  as  they  contend  that 
they  may  let  down  and  destroy  a  house,  and  admit  that  for  that 
adequate  compensation  is  not  provided,  it  follows  that  until  the 
minerals  are  exhausted  and  subsidence  finished,  the  owner  of  the 
soil  cannot  use  it  to  its  best  advantage.  On  the  other  hand,  if 
the  respondents  are  right  the  owner  of  the  minerals  can  rightfully 
take  half  of  them  only,  and  might  be  stopped  from  taking  any- 
thing the  result  of  which  would  be  subsidence  of  the  surface. 
Either  way  there  seems  a  loss. 

We  must  examine  the  statute  to  see  on  whom  it  falls.  And 
the  problem  we  have  to  solve  is  a  very  common  one,  viz.,  what 
provision  has  been  made  for  a  case  not  contemplated  ?  I  say  a 
very  common  one,  for  it  continually  happens  that  extensive  words 
are  used  to  comprehend  cases  not  particularly  contemplated.  As 
I  have  said,  the  appellants  say,  not  that  the  right  they  claim 
is  given  in  express  words,  but  that  it  is  shown  by  the  provision 
for  compensation  for  damage.  I  am  of  opinion,  however,  that 
the  damage  contemplated  is  temporary  only,  a  damage  to  the 
person  in  possession,  not  to  any  reversioner  or  remainder-man. 
The  statute  uses  the  present  participles  "working,"  "laying," 
"  making,"  "  using,"  and  says  that  satisfaction  shall  be  made  for 
the  "damage"  and  "spoil  of  ground"  occasioned  thereby  to  the 
person  in  possession  at  the  times  of  such  damage  and  spoil,  and 
the  damage  is  to  be  paid  yearly  during  the  time  of  working  or 
continuing  or  using  such  ways  for  every  acre  so  damaged.  This, 
I  think,  clearly  contemplates  temporary  damage  during  the  work- 
ing from  which  the  person  in  possession  alone  suffers.  It  is 
impossible  to  say  subsidence  is  included  in  this,  for  the  subsidence 
may  not  take  place  till  long  after  the  working.  Certainly,  sub- 
sidence where  a  house  or  bam  is  let  down  is  not  contemplated. 
As  to  that,  however,  it  may  be  said  it  is  the  folly  of  the  land- 
owner to  build  it.  But  even  without  any  house  being 
built  the  *  damage  by  subsidence  is  permanent.  The  [*  302] 
level  of  the  surface  is  destroyed,  and  if  any  gap  or  steep 
descent  is  made,  the  landowner  would  have  to  fence.     Anyhow, 


672  MIKES  AND  MINERALS. 


Kof.  19,  90.  —  Bowbotham  y.  Wilioii ;  Love  v.  BelL  —  KotM. 

subsidence  is  a  permanent  damage,  and  may  be  long  after  the 
working.     There  is  no  provision  for  compensating  for  that. 

I  am  not  insensible  to  the  force  of  the  argument  of  the  Solici- 
tor-General. He  says,  if  the  argument  for  the  respondents  is 
right,  inasmuch  as  the  damage  from  a  spoil  bank  or  a  shaft  is 
permanent,  either  there  is  no  right  to  sink  a  shaft  or  make  a  spoil 
bank,  or  the  Legislature  has  thought  that  compensation  to  the 
person  in  possession  was  enough,  and  if  so,  why  is  not  the  same 
true  of  subsidence,  it  being  always  the  surface  which  is  injured  ? 
This  is  a  strong  argument.  It  is  singular  that  no  express  power 
is  given  to  sink  shafts  or  deposit  spoil.  Whether  this  matter  was 
not  thought  of,  or  the  right  was  supposed  to  be  "  incident "  to  the 
manor,  or  it  was  thought  that  damage  to  the  reversion  from  shafts 
and  spoil  was  not  of  suj£cient  consequence  to  the  reversioner  to 
require  compensation  to  be  provided,  I  cannot  guess.  Perhaps 
there  is  no  right  to  sink  shafts  and  deposit  spoil.  I  think  there 
is.  But  it  does  not  seem  to  me  that  because  no  provision  is  made 
for  compensation  to  the  reversioner  for  one  permanent  damage, 
there  is  therefore  a  right  to  inflict  on  him  another  one  which  may 
damage  him  only,  and  not  the  person  in  possession  during  the 
working. 

In  the  result  it  seems  to  me  that  the  compensation  is  to  be  for 
what  the  Legislature  considered  damage  to  the  person  in  possession 
during  working ;  that  if  it  has  authorised  shafts  and  spoil  it  has 
considered  them  damages  to  that  person  or  sufficiently  compen- 
sated for  by  payment  to  him,  or  forgotten  the  matter;  anyhow, 
that  it  has  not  provided  compensation  for  subsidence,  and  conse- 
quently has  not  authorised  its  being  caused. 

Order  appealed  from  affirmed ;  and  appeal  dismissed  wUh 
costs. 

Lords'  Journals,  3rd  March,  1884 

ENGLISH  NOTES. 

As  to  the  right  of  support,  generally  see  Dalton  v.  AnguSj  No.  8  of 
"Easement,"  10  R.  C.  98  et  seq.  As  to  the  time  when  the  cause  of 
action  ariaes,  see  notes  to  Wedgewood  v.  Bailey,  No.  4  of  "  Action '^ 
(Eight  of),  1  R.  C.  556  et  seq.  And  see  the  case  of  Humphries  v. 
Brogden,  No.  2,  p.  407,  ante. 

Harris  v.  Bijding  (1839),  6  M.  &  W.  60  (referred  to  by  Lord  Skl- 
BORKE,  p.  669,  ante) ,  was  an  action  on  the  case  for  the  negligent  work- 


R.  C.  VOL.  XVIL]        sect.  IV.  —  RIGHTS  OF  SUPPORT.  673 

Hot.  19,  90.  —  Bowbotham  y.  WUmui  ;  Love  ▼.  BelL  —  Kotei . 

ing  of  a  mine.  The  land  had  been  granted,  ''  excepting  and  reserving  " 
to  the  grantor,  "  his  heirs  and  assigns,  all  and  all  manner  of  coal  —  seams 
and  veins  of  coal "  and  other  minerals,  "  with  free  liberty  of  ingress, 
egress  .  .  ."  to  the  grantor,  &c.,  to  dig,  work,  &c.,  and  with  a  clause  for 
compensation.  It  was  held  that  the  mine  owner  under  the  reservation 
had  no  right  to  take  away  all  the  coal,  without  leaving  so  much  as  to  be 
a  reasonable  support  to  the  surface.  Parke,  B.,  observed :  "  The  grantor 
can  be  entitled  under  the  reservation  only  to  so  much  of  the  mines  be- 
low as  is  consistent  with  the  enjoyment  of  the  surface  according  to  the 
true  intent  of  the  parties  to  the  deed,  that  is,  he  only  reserves  to  him- 
self so  much  of  the  mines  and  minerals  as  could  be  got,  leaving  a  reason- 
able support  to  the  surface.  That  is  the  true  construction  of  this  deed^ 
in  order  to  make  it  operate  according  to  the  intention  of  the  parties. 
It  never  could  have  been  in  their  contemplation,  that,  by  virtue  of  this 
reservation  of  the  mines,  the  grantor  should  be  entitled  to  take  the 
whole  of  the  coal  and  let  down  the  surface,  or  injure  the  enjoyment  of  it; 
it  is  very  like  the  case  of  the  grant  of  an  upper  room  in  a  house,  with 
the  reservation  by  the  grantor  of  a  lower  room,  he  undertaking  not  to 
do  anything  which  will  derogate  from  the  right  to  occupy  the  upper 
room;  and  if  he  were  to  remove  the  supports  of  the  upper  room,  he 
would  be  liable  in  an  action  of  covenant;  for  the  grantor  is  not  entitled 
to  defeat  his  own  act  by  taking  away  the  underpinnings  from  the  upper 
room.  So  in  this  case  he  would  be  acting  in  derogation  of  his  grant 
if  he  were  to  take  away  the  whole  of  the  coal  below,  he  having  granted 
the  use  of  the  surface  to  the  grantee.  If  that  is  the  true  construction 
of  the  reservation  and  power,  the  defendant  ought  to  have  stated  in  his 
plea  that  he  took  the  coal  he  did  take,  leaving  a  reasonable  support  for 
the  surface  in  the  state  it  was  at  the  time  of  the  grant.  It  becomes 
unnecessary  to  inquire  whether  or  not  he  was  bound  to  leave  support 
for  an  additional  superincumbent  weight  upon  the  surface;  probably  he 
would  not  be ;  but  this  plea  is  clearly  bad,  because  the  defendants  do  not 
assign  that  in  taking  away  the  coal  they  did  leave  a  sufficient  support 
for  the  surface  in  its  then  state.  .  .  .  Then  as  to  the  compensation  clause : 
it  seems  to  me,  upon  the  true  construction  of  the  covenant,  that  the  pro- 
vision applies  only  to  the  exercise  of  rights  upon  the  surface." 

In  Taylor  v.  Shafto  (Ex.  Ch.  1867),  8  B.  &  S.  228,  the  plaintiff 
claimed  under  a  conveyance  of  land  in  1857,  which  reserved  the  coal 
under  the  estate,  with  power  to  the  grantor  or  persons  entitled  thereto 
to  work  and  carry  away  the  coal,  paying  compensation  for  damage 
sustained  thereby,  and  containing  a  covenant  by  the  grantor  against 
incumbrances.  The  action  was  for  breach  of  covenant  by  reason  of  the 
lessees  under  a  former  lease  (made  in  1844)  of  the  mines,  working  so  as 
to  let  down  the  surface.  Houses  had  been  built  on  the  land  (by  the 
VOL.  XVII.  — 43 


674  MINES  AND  MINERALS. 

Kof.  19,  90.  —  Bowbotham  y.  WUam ;  Love  ▼.  BelL  —  Votm. 

plaintiff  or  persons  through  whom  he  claimed)  suhseqaently  to  the 
conveyance  of  1857;  hut  it  was  found  hy  the  jury  that  the  plaintiff  had 
not  overloaded  the  surface  hy  the  houses  huilt  on  it,  and  that  the  lessees 
had  properly  worked  the  mines.  The  effect  of  the  lease  of  1844  had 
heen  the  subject  of  a  judgment  of  Vice-Chancellor  Wood  in  an  action 
of  Shafto  V.  Johnson  ;  and  he  had  held  that  the  lessees  under  that  lease 
were  not  only  entitled,  but  bound,  to  get  all  the  coals  which  could  be 
got  with  safety  to  the  mines,  although  the  support  of  the  surface  was 
thereby  removed.  The  Judges  of  the  Queen's  Bench  saw  no  reason  to 
differ  with  the  decision  of  Vice-Chancellor  Wood  in  the  former  case ; 
and  accordingly  held  that  the  fact  of  support  being  removed  in  accord- 
ance  with  that  lease  was  a  breach  of  the  covenant  for  title  in  the  convey- 
ance of  1857.  In  the  Exchequer  Chamber,  the  Court,  on  an  independent 
consideration  of  the  lease  of  1844,  came  to  the  conclusion  that  the  lessees 
under  it  were  not  only  authorised,  but  bound,  so  to  work  the  mines  as  to 
obtain  therefrom  the  largest  quantity  of  coal  that  could  be  gotten  con- 
sistently with  the  safety  of  the  mines,  and  without  regard  to  the  safety 
of  any  dwelling-house  which  might  be  erected  after  the  date  of  the  lease 
upon  any  portion  of  the  surface,  not  specially  protected  by  any  of  its 
provisions.  They  considered  that  the  covenant  for  title  was  broken  by 
the  prior  grant  of  that  lease,  and  affirmed  the  judgment  of  the  Queen's 
Bench  accordingly. 

The  judgment  of  Vice-Chancellor  Wood  in  the  case  of  Shafto  v. 
Johnson,  referred  to  in  Taylor  v.  Shafto,  is  given  in  a  note  to  the 
report  of  that  case  (8  B.  &  S.  252),  and  contains  some  valuable  com- 
ments upon  the  principles  applying  to  the  interpretation  of  such  leases. 
It  appears  from  this  judgment  that  the  lease  contained  a  grant  of  the 
general  powers  of  mining  **  subject  to  the  restrictions  in  that  behalf 
hereinafter  contained ; "  then  there  was  a  covenant  to  pay  the  tenants 
or  occupiers  of  the  laud  £4  per  acre  **by  way  of  satisfaction  for  the 
loss,  damage,  or  spoil  of  so  much  of  their  lands  as  should  be  occasioned 
by  pit  room  or  heap  room,  or  by  the  exercise  or  enjoyment  of  any  of  the 
liberties,  privileges,  or  easements  thereby  granted  ;  "  then  there  was  a 
covenant  by  the  lessees  that  they  will  work  and  carry  on  the  colliery 
"  in  a  fair,  proper,  and  orderly  manner,  and  according  to  the  best  and 
most  approved  method  of  working  collieries  of  a  like  nature  on  the 
rivers  Tyne  and  Wear,  and  so  as  to  produce  with  safety  the  greatest 
quantity  of  merchantable  coals  from  and  out  of  each  of  the  workable 
seams  thereof,  and  shall  not  nor  will  at  any  time  during  the  said  term 
knowingly  do  or  suffer  to  be  done  any  wilful  or  negligent  act,  matter, 
or  thing  whatsoever  which  may  hazard  or  endanger  the  said  coUiery, 
coal  mines,  and  seams  of  coal,  or  any  of  them,  or  which  may  bring  any 
creep  or  thrust  upon  the  same,  or  occasion  any  loss,  damage,  or  detri- 


B.  C.  TOL.  XVII.]        SECT.  IV.  —  RIGHTS   OF  SUPPORT.  675 

Vot.  19,  90.  —  Bowbotham  y.  WOmd  ;  Love  ▼.  BeU.  —  Hotel. 

ment  thereto,  or  which  may  tend  to  hinder,  stop,  or  ohstract  any  of  the 
water  courses,  air  courses,  passages,  or  drifts  which  shall  he  in  or  belong- 
ing to  the  same."     Then  there  was  a  covenant  that  the  lessees  "shall 
not  nor  will  sink  any  pit  or  pits  within  two  hundred  yards  of  any  dwell- 
ing-house, building,  or  farm-yard  erected  or  to  be  erected  upon  any  of  the 
lands  or  grounds  hereinbefore  mentioned  without  the  consent  in  writing 
of  the  lessor  or  his  assigns ;''  and  then  there  is  a  covenant  that  they 
"shall  and  will  leave  the  coal  in  each  and  every  seam  which  may  be 
wrought  under  the  mansion-house  or  offices  at  Whitworth   Park,  by 
virtue  of  this  demise,  to  the  extent  of  the  line  delineated  upon  the 
surface  plan  upon  the  back  of  these  presents  and  therein  coloured  blue, 
which  said  coal  shall  be  left  for  the  support  of  the  said  mansion-house 
and  offices,  and  shall  not  be  reduced  or  passed  through  without  such 
consent  as  aforesaid  on  any  pretence  whatsoever;   and  shall  not  nor 
will,  without  such  consent,  carry  on  any  surface  operations  upon,  nor 
by  any  means  whatsoever  do  or  occasion  any  injury  or  damage  to  such 
parts  of  the  lands  or  grounds  hereinbefore  mentioned  as  are  now  occu- 
pied by  dwelling-houses  and  their  respective  offices,  or  by  gardens  or 
pleasure-grounds  or  farm-yards,  or  by  either  of  the  parks  belonging  to 
the  Whitworth  estate."      The  learned  Vice-Chancellor  commenced  his 
judgment  with  the  following  observations:     "I  have  carefully  con- 
sidered this  lease,  and  I  cannot  arrive  at  the  conclusion  that  any  act 
has  been  done  by  the  lessees  which  is  unlawful  and  contrary  to  the 
stipulations  contained   in   it.     These  cases  are  not  easy  to  be  deter- 
mined, and,  although  we  are  greatly  assisted  by  the  light  of  authority 
thrown  upon  them  through  the  decisions  in  the  House  of  Lords,  there 
is  none  which  represents  precisely  the  case  now  before  me.     There  are 
two  classes  of  authorities.     First.  It  is  settled  that  whether  there  is  a 
grant  originally  of  the  minerals  reserving  the  surface,  or  whether  there 
is  a  grant  of  the  surface  reserving  the  minerals,  the  primd  facie  pre- 
sumption of  law,  in  whatever  way  the  two  properties  became  separate, 
is  that  the  owner  of  the  surface  has  the  clear  right  to  the  support  of  it, 
notwithstanding  another  person  may  have  an  equal  right  to  the  minerals 
and  to  work  them.     But  then  the  matter  stands  exactly  as  it  was  put  by 
Lord  Wenslbydale  in  Bowbotham  v.  Wilson  (ante,  p.  647,  8  H.  L.  C. 
348,  30  L.  J.  Q.  B.  49),  which,  however,  does  not  materially  assist  the 
present  case,  because  there  was  an  express  provision  which  indicated  very 
clearly  and  definitely  the  intention  of  all  the  parties  to  the  original  ar- 
rangement that  there  should  be  a  disturbance  of  the  surface,  and  they 
bound  themselves  to  acquiesce  in  it,  as  the  House  of  Lords  ultimately 
held,  the  main  question  being  more  upon  technical  grounds  than  upon 
any  substantial  equity  in  the  case,  viz.,  whether  a  clause  in  an  award 
contained  words  which  could  operate  by  way  of  grant  as  between  the 


676  MINES  AND   MINERALS. 


Hoi.  19,  20.  — Bowbotham  y.  WUaan. ;  Love  y.  Bell.  — Notes. 

parties  who  were  concerned  in  the  litigation.  Lord  Wensleydale 
said  (ante,  p.  654,  8  H.  L.  Cas.  p.  360,  30  L.  J.  Q.  B.  p.  53) :  'The 
rights  of  the  grantee  to  the  minerals,  hy  whomsoever  granted,  must 
depend  upon  the  terms  of  the  deed  hy  which  they  are  conveyed  or  re- 
served when  the  surface  is  conveyed.  Prima  facie,  it  must  be  pre- 
sumed that  the  minerals  are  to  be  enjoyed,  and,  therefore,  that  a  power 
to  get  them  must  also  be  granted  or  reserved,  as  a  necessary  incident. 
It  is  one  of  the  cases  put  by  Sheppard  (Touchstone,  chap.  5,  p.  89)  in 
illustration  of  the  maxim,  "Quando  aliquid  conceditur,  conceditur 
etiam  et  id  sine  quo  res  ipsa  non  esse  potuit,"  that  by  [the]  grant  of 
mines  is  granted  the  power  to  dig  them.  A.  similar  presumption,  jsrima 
facie,  arises,  that  the  owner  of  the  mines  is  not  to  injure  the  owner  of 
the  soil  above  by  getting  them,  if  it  can  be  avoided.  But  it  rarely  hap- 
pens that  these  mutual  rights  are  not  precisely  ascertained  and  settled 
by  the  deed  by  which  the  right  to  the  mines  is  acquired;  and,  then, 
the  only  question  would  be  as  to  the  construction  of  that  deed,  which 
may  vary  in  each  case.  The  question  to  be  decided  in  this  case  is,  what 
sort  of  right  the  defendant  had  upon  the  facts  stated  in  the  case  reserved, 
to  get  and  take  away  the  coals  under  the  plaintiff's  land.'  Mr.  Giffard 
called  my  attention  to  a  case  in  which  my  judgment  went  as  far  as  any 
of  the  authorities  in  favour  of  the  person  who  had  reserved  the  reversion. 
And  in  the  subsequent  decisions  in  the  House  of  Lords  I  see  every 
reason  to  adhere  to  it.  In  Dugdale  v.  Robertson  (3  K.  &  J.  695),  there 
were  the  common  powers,  as  in  the  present  case,  to  dig,  open,  search 
for,  work,  &c.,  iron,  ironstone,  and  coals, '  except  in  or  upon  any  demesne 
lands  and  pleasure  grounds  belonging  to  and  occupied  with  the  mansion 
called  Brymbo  Hall,  and  coloured  red  upon  the  said  plan.'  And  upon 
that  the  question  was  whether  the  mines  and  minerals  under  the  lands 
coloured  red  were  included  in  and  passed  by  the  lease.  Then  there  was 
a  proviso,  *  That  all  pits  or  works  sunk  or  raised  for  the  purpose  of 
working  the  minerals  under  the  grounds  coloured  yellow  in  the  plan 
should  be  sunk  and  raised  at  the  furthest  point  from  the  mansion-house, 
at  the  part  coloured  yellow.'  The  contest  there,  as  it  has  been  here, 
was  that  the  exception  of  the  mansion-house  did  not  override  the  gen- 
eral right  of  the  plaintiff  to  have  his  surface  protected,  because  it  might 
well  be  that,  having  that  special  object  in  view,  he  would  fence  it  with 
a  special  and  particular  precaution  not  at  all  waiving  his  general  right. 
And  that  was  the  conclusion  to  which  I  came.  I  said  (3  K.  &  J.  p.  699), 
*  The  question  in  this  case  resolves  itself  into  the  construction  to  be  put 
upon  the  indenture ;  and  upon  the  terms  of  the  indenture  it  is  clear  that 
the  mines  and  minerals  under  the  lands  coloured  red  were  included  in 
and  did  pass  by  the  lease ;  but  that  the  defendants  were  not  authorised 
by  that  indenture  to  work  them,  or  to  execute  any  works  upon  those 


K.  C.  VOL.  XVII.]        SECT.  IV. — RIGHTS   OF  SUPPORT.  677 

Kof.  19,  90.  —  Bowbotham  y.  Wilioii ;  Love  y.  Bell.  —  Hotel. 

lands;  or  to  search  for  any  coal  or  mineral  therein.'  I  added,  '  As  to  the 
rest  of  the  lands  comprised  in  the  indenture,  the  common-law  right  is 
now  clear  from  the  decision  of  the  Court  of  Queen's  Bench  in  Smart 
V.  Morton  (5  E.  &  B.  30)  —  although  that  did  not  carry  the  law  further 
than  the  decision  of  the  Court  of  Exchequer  in  Harris  r.  Ryding  (5  M, 
&  W.  60).  In  Smart  v.  Morton  there  was  a  plea  that  in  the  deed  hy 
which  the  surface  was  granted  to  the  parties  through  whom  the  plaintiff 
claimed  there  was  an  express  reservation  of  the  mines,  with  liberty  to 
work  those  mines  and  drive  drifts,  and  use  any  other  ways  for  the  better 
and  more  commodious  working  and  winning  the  same;  and  the  grantor 
covenanted  to  pay  treble  damages  for  such  loss  or  damage  as  should  be 
sustained  by  the  grantee;  that  it  was  in  the  necessary  and  needful 
working  of  the  mines  that  the  defendant  had  caused  the  damages  com- 
plained of,  and  that  he  was  ready  to  pay  damages  according  to  the 
covenant.  But,  on  demurrer,  the  Court  held  that  the  plea  was  bad; 
for  the  occupier  of  the  surface  had  a  primd  facie  right  to  the  support 
of  the  subjacent  strata,  and  the  deed  did  not  authorise  any  working  in 
derogation  of  that  right.  And  so  conversely,  where  the  minerals  are 
demised  and  the  surface  is  retained  by  the  lessor,  there  arises  a,  primd 
facie  inference  at  common  law  upon  every  demise  of  minerals  or  other 
subjacent  strata,  that  the  lessor  is  demising  them  in  such  a  manner  as 
is  consistent  with  the  retention,  by  himself,  of  his  own  right  to  support, 
as  in  the  case  put  in  the  judgment  of  the  House  of  Lords  (  Caledonian 
Railway  Co.  v.  Sprot,  p.  686,  post)  of  a  demise  of  the  upper  part  of  a 
house.  If  I  demise  to  you  the  lower  story  of  a  house,  and  reserve  to 
myself  an  upper  story,  the  presumption  is  that  I  do  not  part  with  my 
right  to  be  supported  by  the  story  I  demise.  It  is  true,  there  may  be 
an  express  stipulation,  as  there  was  in  Rowbotham  v.  Wilson  (25 
L.  J.  Q.  B.  362),  by  which  the  owner  of  the  surface  waives  his  right 
to  support,  and  agrees  to  allow  the  mines  to  be  so  worked  as  to  destroy 
his  property;  but  in  the  absence  of  express  words  showing  distinctly 
that  he  has  waived  or  qualified  his  right,  the  presumption  is,  that  what 
he  retains  is  to  be  enjoyed  by  him  modo  et  forma  as  it  was  before,  and 
with  that  natural  support  which  it  possessed  before  he  parted  with  the 
subjacent  strata.'  In  that  passage  I  put  the  case  as  strongly  as  it  well 
can  be  put  against  the  view  I  am  entertaining  in  the  present  case ;  and 
I  came  to  the  conclusion  that  there  was  a  clear  indication  upon  the  face 
of  the  deed  throughout  that  the  plaintiff  was  most  anxious  to  preserve 
Brymbo  Hall,  and  there  was  a  covenant  to  supply  the  owner  for  the  time 
being  with  coal  at  Brymbo  Hall.  The  result  of  my  investigation  was 
that  the  special  provisions  or  clauses  put  in  to  protect  the  particular 
house  might  be  thought  not  to  go  far  enough  in  themselves,  and  that 
the  plaintiff  had  not  waived  or  indicated  any  intention  to  waive  the 


678  MINES   AND  MINERALS. 

KoB.  19,  90.  —  Bowbotiuun  y.  Wilson ;  Love  y.  Bell.  —  Kotei . 

support  to  the  house,  but,  on  the  contrary,  those  clauses  were  put  in  for 
the  purpose  of  reserving  to  himself  all  his  general  and  common-law  rights 
to  support,  and  ex  majori  cauteld  he  took  care  to  preserve  that  special 
support,  and  whatever  the  lessees  did  they  must  not  let  down  the  house. 
It  did  not  appear  to  me  that  the  expressio  unius  was  the  exclusio  aU 
terius,  but  on  the  contrary,  the  expressio  unius  was  the  expression  of 
that  which  it  was  the  purport  and  intention  of  the  instrument  to  carry 
out  all  through.  The  present  case  seems  to  me  exceedingly  different." 
The  learned  Vice-Chancellor  then  adverted  to  the  special  terms  of  the 
lease  as  above  stated,  and  then  observed  that  on  taking  the  covenants 
together,  ''the  necessary  inference  is  that  it  is  the  intent  that  all  the 
coal  that  can  be  got  without  hurting  the  mine  shall  be  got,  provided 
always  that  certain  specified  property,  and  that  alone,  shall  be  pro- 
tected, and  its  surface  right  to  support  saved.  In  thai;  respect,  the 
present  differs  widely  from  the  case  of  DugdaZe  v.  Robertson  (3  K.  &  J. 
695).  The  lease  protects  not  merely  the  mansion-house  and  dwelling- 
houses,  but  gardens,  pleasure-grounds,  and  the  parks;  so  that  the 
whole  surface  is  contemplated.  The  parties  who  had  this  instrument 
before  them,  and  were  preparing  to  settle  their  mutual  rights  and  the 
rights  of  those  who  came  after  them  under  it,  provided,  on  the  one 
hand,  for  the  benefit  both  of  the  lessor  and  of  the  lessees  that  they 
should  work  all  the  coal  that  they  could  get,  and,  on  the  other,  for  the 
benefit  of  the  lessor  that  not  only  his  mansion-house  and  certain  other 
houses  should  be  protected,  but  all  those  then  existing  upon  the  estate, 
the  extent  of  the  protection  being  carefully  defined  by  the  words  used. 
When  a  large  portion  of  the  surface  is  thus  selected  and  protected  from 
disturbance  without  consent,  the  inference  is  irresistible  that  the  work- 
ing under  any  other  part  of  the  surface  is  to  go  on  so  as  to  get  the 
greatest  quantity  of  coal.  ...  It  seems  to  me,  therefore,  that,  as  far  as 
regards  any  portion  of  the  coal  worked  under  land  which  was  simply 
agricultural,  either  cultivated  or  waste,  where  and  on  which  no  build- 
ings were  then  standing,  there  has  been  no  infringement  of  the  covenant 
by  the  lessees,  as  they  were  only  bound  to  support  that  land  upon  which 
the  eighteen  houses  stood,  but  which  had  been  allowed  to  be  let  down 
by  the  working  five  or  six  years  ago  to  the  knowledge  of  all  parties. 
The  circumstance  that  five  hundred  or  any  other  number  of  houses  have 
since  been  built  will  not  alter  the  rights  or  duties  or  obligations  of  the 
lessees.  The  lessor  is  the  person  who  comes  here  to  complain,  and  he 
has  knowledge  of  the  lease  and  its  contents,  and  must  be  taken  to  have 
known  all  the  consequences  which  result  from  the  lease." 

In  Williams  v.  Bagnall  (1867),  15  W.  R.  275,  12  Jur.  (N.  S.)  987, 
a  plot  of  land  had  been  conveyed  excepting  and  reserving  the  mines, 
with  full  power  to  work  the  minerals  without  entering  upon  the  land, 


IL  C.  VOL.  XVIL]        SECT.  IV. — RIGHTS   OF  SUPPORT.  679 

Km.  19,  90.  —  Bowbotham  y.  Wllwui ;  Love  y.  BelL  —  Kotei . 

and  without  being  answerable  for  any  injury  that  may  arise  to  the  land 
"or  to  any  of  the  buildings  which  shall  at  any  time  hereafter  be  erected 
upon  the  said  land  or  any  part  thereof,  by  reason  of  the  working,"  &c. 
It  was  held  by  Vice-Chan  cell  or  Wood  that  under  the  express  terms  of 
the  reservation  the  grantor  was  entitled  (assuming  that  the  work  is  done 
in  a  reasonable  way)  to  get  the  coal  under  the  land  without  being 
answerable  for  letting  down  the  surface. 

In  Richards  v.  Jmkins  (1868),  18  L.  T.  (N.  S.)  437,  17  W.  R.  30, 
Ejslly,  C.  B.,  says:'  **The  principle  of  law  to  be  deduced  from  all 
the  authorities  and  directly  established  by  Harris  v.  Hyding  (cited 
p.  672,  supra),  and  Humphries  v.  Brogden  (p.  407,  ante),  is  that  a 
grant  or  reservation  of  mines  in  general  terms  confers  a  right  to  work 
the  mines,  subject  to  the  obligation  of  leaving  a  reasonable  support  to 
the  surface  as  it  exists  at  the  time  of  such  grant  or  reservation. '^ 

In  the  case  of  the  Duke  of  Buccleuch  v.  Wakefield  (H.  L.  1870), 
L.  R.  4  H.  L.  377,  39  L.  J.  Ch.  441,  23  L.  T.  102,  frequently  referred 
to  in  the  above  principal  case  of  Love  v.  Bell,  the  local  Inclosure  Act 
under  which  the  surface  of  the  waste  was  enclosed  contained  a  very 
elaborate  clause,  which,  besides  reserving  to  the  lord  the  minerals  under 
the  waste,  expressly  conferred  upon  him  a  large  number  of  powers  to 
erect  works,  &c.,  so  as  to  spoil  the  surface  in  a  variety  of  ways,  and 
then  were  added  the  words,  '^in  as  full  and  ample  a  manner  as  could 
have  been  done  if  the  lands  had  remained  open  and  unenclosed  and  this 
Act  had  not  been  passed  .  .  •  making  compensation  for  damages  done 
by  such  works," — it  was  held  that  the  express  and  special  powers 
were  not  limited  by  the  words  "in  as  full  and  ample  a  manner,"  &c., 
inasmuch  as  the  rights  of  the  lord  as  owner  of  the  soil  as  against  the 
commoners  having  rights  of  pasturage,  &c.,  under  the  former  condi- 
tions, could  not  supply  a  measure  applicable  to  the  rights  as  between 
the  owner  of  the  minerals  and  the  owners  of  the  surface :  —  and,  in  effect, 
that  the  special  powers  amounted  to  an  unlimited  power  to  spoil  the 
surface,  on  compensation  being  made. 

In  Eadon  v.  Jeffcock  (1872),  L.  R.  7  Ex.  379,  42  L.  J.  Ex.  36,  28 
L.  T.  273,  20  W.  R.  1033,  a  bed  of  coal  was  leased  with  working 
powers,  at  a  certain  rate  per  acre  for  coal  actually  got,  "including  all 
ribs  and  pillars  left  in  working  the  said  coal  except ''  certain  pillars 
particularly  specified.  It  was  held  by  Barons  Cleasbt  and  Martin, 
Bbamwell,  B.,  doubting,  that  the  lessees,  working  in  a  proper  manner, 
were  entitled  to  take  away  the  pillars,  except  those  specified,  although 
the  surface  was  thereby  let  down. 

In  Smith  v.  Darby  (1872),  L.  R.  7  Q.  B.  716,  42  L.  J.  Q.  B.  140, 
26  L.  T.  762,  20  W.  R.  982,  there  was  a  demise  of  minerals  with 
powers  and  provisions  for  compensation  in  various  ways  which  implied 


680  MINES  AND   MINERALS. 


Km.  19,  20.  —  Bowbotiuun  y.  Wilfon ;  Love  v.  Bell.  —  Kotei . 

the  prospect  of  the  buildings  being  damaged  by  subsidence ;  and  it  was 
held  that  there  was  a  sufficient  implication  of  an  intention  that  the 
lessees  should  have  the  right  to  work  the  mine  so  as  to  let  down  the 
surface,  paying  damages. 

Btichanan  v.  Andrew  (1873),  L.  R.  2  H.  L.  Sc  286,  was  a  Scotch 
appeal  decided  in  the  House  of  Lords  upon  a  feu  contract  entered  into 
between  Colonel  Buchanan  (owner  of  the  land  and  minerals)  as  superior, 
and  the  appellant  as  feuar.  The  material  clauses  of  the  contract  were 
as  follows:  ** Reserving  always  [to  the  superior,  Tiis  heirs  and  succes- 
sors] the  whole  coal,  fossils,  fireclay,  ironstone,  limestone,  freestone, 
and  all  other  metals  and  minerals  in  the  said  piece  of  ground,  with  full 
power  to  work,  win,  and  carry  away  the  same  at  pleasure,  as  also  to 
remove  as  much  stone  and  other  matter  as  may  be  necessary  for  the 
proper  working  of  the  said  coal,  ironstone,  and  others,  and  that  free  of 
all  or  any  damage  which  may  be  thereby  occasioned  [to  the  feuar,  his 
heirs,  &c.] ;  and  it  is  expressly  agreed  that  the  [superior,  &c.]  shall  not 
be  liable  for  any  damage  that  may  happen  to  the  said  piece  of  ground, 
buildings  thereon,  or  existing  hereafter  thereon,  by  or  through  the 
working  of  the  coal,  fireclay,  ironstone,  freestone,  or  other  metals  op 
minerals  in  or  under  the  same,  or  in  the  neighbourhood  thereof,  by 
long-wall  workings  or  otherwise,  or  which  may  arise  from  or  through 
the  setting  or  crushing  of  any  coal -waste,  or  other  excavation  presently 
existing,  or  which  may  exist  hereafter  within  or  in  the  neighbourhood 
of  the  ground  hereby  dispbned,  through  the  said  [superior,  &c.]  working 
or  drawing  the  said  metals  or  minerals,  or  others  as  aforesaid ;  and  that 
the  [feuar,  &c.]  shall  not  be  entitled  to  claim  damages  on  the  ground  of 
any  loss  or  inconvenience  arising  from  any  wells,  &c.,  being  diminished, 
&c.  .  .  .  And  further  the  [feuar]  binds  and  obliges  himself,  &c.,  to 
erect  a  single  or  double  dwelling-house  or  villa  of  one  story  with 
attics,  &c.,  and  to  maintain  the  same,  &c.  .  .  .''  At  the  date  of  the 
contract  (in  1859)  the  state  of  matters  appearing  on  the  evidence 
was  as  follows :  There  were  a  considerable  number  of  houses  on  the 
property,  under  which  coal  had  been  worked  for  a  number  of  years 
on  the  old  stoop  and  room  principle,  under  which  large  pillars  of 
coal  are  left  to  support  the  surface.  A  short  time  previously  to  the 
contract  a  new  system  of  working  had  been  introduced,  by  which  these 
pillars  were  taken  away  and  nothing  left  for  support.  At  the  date  of 
the  action  the  appellant's  house  was  still  supported  by  the  old  pillars, 
but  the  respondent's  lessees  in  their  new  workings  were  approaching  this 
part  of  the  property,  and  claimed  the  right  to  remove,  and  threatened  to 
remove,  these  pillars.  The  Court  of  Session  granted  an  interdict.  The 
House  of  Lords  reversed  the  orders,  holding  that  by  the  express  terms 
of  the  contract,  and  notwithstanding  the  feuar's  obligation  to  erect  and 


B.  C.  VOL.  XVIL]       sect.  IV.  —  RIGHTS   OF  SUPPORT.  681 

Km.  19,  20.  —  Bowbotiuun  y.  Wilson ;  Love  y.  Bell.  —  Notes. 

maintain  a  house^  the  mineral  owners  were  relieved  of  any  obligation 
to  support  the  surface.  The  Lord  Chancellor  (Lord  Selborne)  laid 
down  the  law,  applying  to  Scotland  as  well  as  England,  as  follows: 
<'  Generally  speaking,  when  a  man  grants  the  surface  of  land,  retaining 
the  minerals,  he  is  guilty  of  a  wrongful  act  if  he  so  uses  his  own  right 
to  obtain  the  minerals  as  to  injure  the  surface,  or  the  things  upon  it; 
and  as  prevention  is  better  than  cure,  the  Court  would  be  justified  in 
granting  an  interdict  to  prevent  him  from  doing  so.  But,  on  the  other 
hand,  I  apprehend  it  is  the  clear  law  of  England,  and  also  of  Scotland, 
that  when  two  persons  meet  and  deliberately  settle  a  contract,  they  are 
at  liberty  to  enter  into  such  terms  (not  being  contrary  to  the  public  law) 
as  they  may  think  fit ;  and  if  a  feuar  of  surface  lands  is  willing  to  take 
the  risk  of  any  injury  which  may  be  done  by  the  working  of  the  sub- 
jacent minerals,  it  is  perfectly  lawful  for  him  to  do  so ;  the  person  who 
was  previously  the  owner  of  the  entirety  being  under  no  antecedent 
obligation  to  part  with  any  portion  previously  his  own,  except  upon 
such  terms  as  are  mutually  agreed  upon.''  The  question,  therefore, 
resolved  itself  into  one  of  construction;  and  upon  an  analysis  of  the 
stipulation  of  the  contract,  he  considered  it  clear  that  the  possible  event 
of  the  surface  being  let  down  by  a  working  of  the  whole  coal  upon  the 
modem  system  was  clearly  contemplated  and  intended.  Lord  Chelms* 
PORD  and  Lord  Colonsay  expressed  opinions  to  the  same  effect. 

In  the  case  of  Aspden  v.  Seddon  (1875),  L.  R.  10  Ch.  394,  44  L.  J. 
Ch.  359,  32  L.  T.  415,  23  W.  R.  580,  referred  to  by  Lord  Watsok 
(p.  669,  ante),  a  plot  of  land  had  been  conveyed  to  a  cotton  manufac- 
turing company  under  an  exception  of  the  mines  with  general  powers 
to  work  them,  '^but  without  entering  on  the  surface  of  the  said  prem- 
ises, or  any  part  thereof,  so  that  compensation  in  money  be  made  by 
[the  grantor  and  his  successors,  &c.]  for  all  damage  that  shall  be  done 
to  the  erections  on  the  said  plot  by  the  exercise  of  any  of  the  excepted 
liberties,  or  in  consequence  thereof."  The  conveyance  contained  a 
covenant  by  the  company  to  erect  a  cotton  mill  and  other  buildings  on 
the  land,  and  a  covenant  by  the  grantor  to  pay  compensation,  to  be 
determined  by  arbitration,  for  all  damage,  spoil,  &c.,  to  be  sustained 
by  the  owner,  tenant,  or  occupier  of  the  land,  or  of  any  buildings,  &c., 
in  respect  or  in  consequence  of  working  the  excepted  mines.  It  was 
held  by  the  Court  of  Appeal,  affirming  the  decision  of  the  Master  of 
THE  Bolls,  that  on  a  fair  construction  of  the  instrument  the  intention 
was,  that  the  mines  might  be  worked  so  as  to  damage  the  buildings,  on 
compensation  being  made. 

In  Benfieldside  Local  Board  v.  Consett  Iron  Ore  Co.  (1878),  38 
L.  T.  530,  the  question  was  whether,  under  a  reservation  to  the  lord  by 
an  Inclosure  Act  of  the  mines  under  the  waste,  the  mine  owner  had  a 


682  MINES  AND  MINERALS. 


Ko8. 19,  20.  —  Bowbotham  v.  WUmm ;  Love  y.  BelL  —  Kotes. 

right  to  work  the  mines  so  as  to  injure  the  highways  set  out  under  the 
Act.  It  was  held  hy  E^ellT;  C.  B.,  and  Cleasby,  B.,  that  whatever 
his  powers  might  be  as  against  the  owner  of  aa  allotment  of  the  surface, 
he  could  not  have  such  a  right  as  against  the  public  using  the  highways 
expressly  set  out  under  the  Act. 

In  Davis  v.  Trehame  (H.  L.  1881),  6  App.  Cas.  460,  50  L.  J.  Q.  B. 
665,  29  W.  R.  869,  the  author  of  the  respondent  (who  was  plaintiff  in 
the  action)  had  (in  1869)  demised  to  the  appellant  (defendant)'  certain 
veins,  mines,  and  seams  of  coal,  &c.,  under  a  certain  farm,  with  power 
to  the  lessee  to  enter  into  and  upon  certain  parts  of  the  said  farm,  and 
to  open,  get,  and  carry  away  the  said  veins,  &c.,  subject  to  certain  rents 
and  royalties.  The  lessee  covenanted  to  work  the  veins,  &c.,  ''in  the 
usual  and  most  approved  way  in  which  the  same  is  performed  in  other 
works  of  the  like  kind  in  the  county  of  Glamorgan,"  and  at  the  end  of 
the  term  to  compensate  the  lessor  for  any  damage  done  to  the  surface 
of  the  said  farm.  It  appears  that  at  the  time  of  the  granting  of  this 
lease  the  grantor  had  already  granted  a  building  lease  of  part  of  the 
farm,  and  that  he  shortly  afterwards  granted  a  building  lease  of  the 
rest  of  it.  These  leases  became  vested  in  the  respondent,  plaintiff  in 
the  action.  The  action  was  for  damages  against  the  appellant  as  mine 
owner  for  working  the  mines  so  as  to  injure  the  plaintiff^s  land  and 
buildings.  The  question  was  whether  the  prima  fade  right  of  support 
was  taken  away  by  the  terms  of  the  mining  lease.  The  House  of  Lords 
held  that  it  was  not.  The  Lord  Chancellor  (Lord  Selborne)  ob- 
served that  the  existence  of  the  covenant  by  the  lessee  to  work  in  ''the 
usual  and  most  approved  way  of  working  in  the  county  of  Glamorgan," 
assuming  that  the  usual  way  involved  a  letting  down  of  the  surface, 
could  not  have  been  intended  to  absolve  the  lessee  from  a  legal  obliga- 
tion (that  of  support)  collateral  to  the  working  of  the  mine.  Lord 
Blackburn  observed  that  the  compensation  clause  was  obviously 
meant  to  include  surface  damage  arising  from  the  powers  of  entry 
and  user  of  the  surface,  and  therefore  did  not,  by  implication,  rebut 
the  usual  presumption  against  the  right  to  let  down  the  surface. 

Lord  Watson  stated  the  principles  applying  to  the  case  as  follows : 
"When  a  proprietor  of  the  surface  and  the  subjacent  strata  grants  a 
lease  of  the  whole  or  part  of  his  minerals  to  a  tenant,  I  think  it  is  an 
implied  term  of  that  contract  that  support  shall  be  given  in  the  course 
of  working  to  the  surface  of  the  land.  If  it  is  not  intended  that  that 
right  should  be  reserved,  the  parties  must  make  it  very  clear  upon  the 
face  of  their  contract;  in  other  words,  they  must  express  their  inten- 
tion so  clearly  as  to  enable  a  Court  to  say  that  such  intention  is  plain. 
I  think  that  rule  was  laid  down  by  the  late  Lord  Justice  Mrllish  in 
the  case  of  Hext  v.  Gill  (L.  R.  7  Ch.  699,  41  L.  J.  Ch.  761),  and  I 


R.  C.  VOL.  XVIL]       sect.  IV.  —  BIGHTS   OF  SUPPORT.  683 

Koc  19,  90.  —  Bowbotham  y.  WUmod,  ;  Lore  y.  BelL  —  Kotef . 

quite  agree  with  tbat  ruling.  It  may  be  done  in  express  terms ;  but^ 
of  course,  it  is  not  necessary  that  express  language  must  be  used;  for 
it  may  appear  by  a  plain  implication  from  other  clauses  of  the  deed,  as 
in  the  case  of  Taylor  v.  Shafto  (8  B.  &  S.  228),  where  an  obligation 
was  laid  upon  the  tenant  to  perform  certain  acts  which  were  plainly 
inconsistent  with  supporting  the  surface.  But,  applying  those  princi- 
ples to  the  present  case,  I  am  quite  unable  to  find  in  the  terms  of  this 
mineral  lease  of  July,  1869,  anything  to  countenance  the  view  that  the 
parties  did  intend  to  take  away  from  the  landlord,  who  was  letting  his 
minerals,  the  right  to  have  the  surface  supported. '' 

In  Dixon  v.  White  (H.  L.  Sc.  1883),  8  App.  Cas.  833,  it  was  held 
that  on  a  sale  of  land  reserving  minerals,  if  the  vendor  desires  to  have 
the  power  to  get  them  so  as  to  let  down  the  surface,  he  must  frame  his 
power  so  that  the  Court  may  be  able  to  say  from  the  titles  that  such 
was  clearly  the  intention  of  the  parties.  The  grant  in  question  was 
made  by  a  feu-disposition  of  *'all  and  whole  the  coal  and  ironstone  in 
the  whole  lands  of  G."  and  other  specified  lands  described  with  reference 
to  a  plan,  ''being  the  whole  coal  and  ironstone  which  belongs  to  me, 
with  full  liberty  and  power  to  [the  grantees  and  their  assigns]  to  work 
and  win  the  foresaid  coal  and  ironstone  for  their  own  benefit  and 
advantage ;  and  for  that  purpose  with  full  power  and  liberty  to  them 
to  set  down  coal-pits,  make  coal-hills  and  mouths,  drive  levels,  drains, 
erect  dwelling-houses,  engines,  and  oil-machinery  necessary  for  the 
purpose  of  working  or  drawing  the  foresaid  coal  and  ironstone."  It 
was  expressly  declared  that  the  grantees  should  not  have  liberty  to  set 
down  any  coal-pits,  make  any  coal-hills,  &c.,  or  break  the  surface  of  the 
land  belonging  to  the  grantor  on  the  north  side  of  a  line  delineated  on 
the  plan —  "with  full  power  and  liberty,  however,  [to  the  grantees]  to 
work  and  win  the  coal  and  ironstone  of  the  said  lands  lying  to  the  north 
of  the  said  line,  provided  the  same  be  done  from  pits  to  the  south  side 
of  the  line,  without  breaking  the  surface  of  the  land  lying  on  the  north 
side  of  the  line  .  .  .  but  for  the  whole  damage  and  injury  occasioned 
by  the  foresaid  operations  and  roads  and  quarries  to  the  foresaid  lands 
[the  grantor,  his  heirs,  &c.],  shall  be  completely  paid  and  indemnified 
[by  the  grantees,  &c.],  who,  by  acceptation  hereof,  bind  and  oblige 
themselves  to  pay  the  damage  occasioned  by  the  said  operations  [to  the 
grantors,  &c.]  as  the  same  shall  be  ascertained  by  two  neutral  persons.'^ 
Under  this  grant  the  clause  stipulating  for  payment  of  damage  was 
construed  as  referring  to  damage  by  accident  or  negligence  to  the 
surface,  and  not  to  have  the  effect  of  taking  away  or  derogating  from 
the  presumptive  right  of  the  owner  of  the  surface  to  insist  that  the 
owner  of  the  minerals  should  leave  sufficient  support  to  sustain  the 
surface  uninjured.     The  rule  in  Rowhotham  v.  Wilson  was  followed; 


684  MINES  AND  MINERALS. 


Hot.  19,  90.  — BowbofhMn  Y.  WilMm;  Love  y.  BelL  — Kot«. 

and  it  was  observed  by  Lord  Blackburn  that  the  same  principle  most 
be  held  to  have  been  established  in  Scotland  by  the  judgments  delivered 
in  the  case  of  Buchanan  v.  Andrew  (p.  680,  ante) . 

In  Mundy  v.  Duke  of  Rutland  (C.  A,  1883),  23  Ch.  D.  81,  31  W.  R. 
610,  a  case  taming  on  the  construction  of  a  special  reservation  in  a 
grant  involving  the  rights  as  between  lessees  of  upper  and  lower  strata 
of  coal,  there  is  much  consideration  of  the  general  principles  applying 
to  grants  of  superimposed  strata.  Mr.  Justice  Kay,  after  observing 
that  it  was  well  settled  that  an  owner  of  land  by  merely  letting  mines 
does  not  impliedly  give  up  his  right  of  having  sufficient  support  left 
for  the  surface  {Harris  v.  Ryding,  6  M.  &  W.  00,  and  Davis  v. 
Trehame,  6  App.  Cas.  460),  and  after  observing  that  the  degree  of 
support  for  underlying  strata  is  not  necessarily  the  same  as  for  the 
surface,  said:  ^'But  there  can  be  no  question  that  when  the  owner 
of  several  seams  of  coal  sells  or  lets  some  of  the  upper  seams,  he  must 
by  that  grant  confer  on  the  purchaser  or  lessee  a  right  to  sufficient 
support  from  the  underlying  strata  to  enable  him  to  use  the  strata 
granted  for  the  purpose  for  which  he  acquired  them.''  On  the  appeal, 
the  Master  of  the  Eolls  said :  <'  It  is  quite  plain  that  the  grantor  in 
a  grant  in  fee,  a  fortiori  that  the  lessor  in  a  lease,  cannot  derogate  from 
his  own  grant.  If,  therefore,  he  has  granted  two  mines,  or  two  veins 
or  seams  of  coal,  he  has  no  right  by  working  seams  below  to  let  down 
those  veins  or  seams,  nor  has  he  a  right  to  let  down  a  barrier  so  as  to 
drown  the  veins  or  seams."  The  Lords  Justices  Cotton  and  Bowen 
concurred  in  this  opinion,  and  they  all  considered  that,  as  the  special 
proviso  in  question  did  not  clearly  and  unequivocally  give  the  right  to 
one  of  the  lessees  to  break  down  a  natural  barrier  to  the  injury  of  the 
other,  he  could  not  have  any  such  right. 

In  the  case  of  Consett  Waterworks  Co.  v.  Ritson  (1888),  22  Q.  B.  D. 
318,  702,  60  L.  T.  360,  the  waterworks  company  had  purchased  from 
the  allottee  under  an  Inclosure  Act  land  under  compulsory  powers,  but 
had  given  no  notice  to  treat  in  respect  of  the  minerals  which  were 
vested  in  the  lord  of  the  manor.  The  Judges  of  the  Queen's  Bench 
(A.  L.  Smith,  J.,  and  Cave,  J.)  had  concurred  in  holding  that  the 
Inclosure  Act  did  not  confer  upon  the  lord  of  the  manor  a  right  to 
work  the  mines  so  as  to  let  down  the  surface.  On  this  assumption 
they  proceeded  to  consider  the  effect  of  the  clauses  18,  22,  and  23  of  the 
Waterworks  Clauses  Act,  1847  (10  &  11  Vict.,  c.  17),  on  which  they 
differed  in  opinion,  A.  L.  Smith,  J.,  being  of  opinion  that  under  the 
18th,  22nd,  and  23rd  sections  of  that  Act,  all  the  company  were 
entitled  to  was  the  ownership  of  the  surface  without  any  right  of 
support,  Cave,  J.,  on  the  contrary,  being  of  opinion  that  the  lord 
of  the  manor  had  only  the  same  right  as  he  had  before  the  purchase. 


B.  C.  VOL.  XVIL]      sect.  IV.  —  RIGHTS   OF  SUPPORT.  685 

Vo.  21. — Oaladmiian  Ballvay  Oo.  ▼.  Spnt  —  Enk. 

namely,  the  right  to  work  the  minerals^  leaving  sufficient  support 
to  the  surface.  The  Court  of  Appeal,  however,  came  to  the  con* 
elusion,  upon  the  special  terms  of  the  Inclosure  Act  in  question  (the 
Lanchester  Inclosure  Act,  1773),  that  it  gave  the  right  to  the  lord 
of  the  manor  to  work  the  mines  so  as  to  let  down  the  surface  without 
making  compensation  to  the  allottees ;  and,  therefore,  it  became  un- 
necessary to  decide  on  the  effect  of  the  clauses  of  the  Waterworks 
Act,  1847. 

In  Greenwell  v.  Low  Beeehbum  Coal  Co.,  1897,  2  Q.  B.  165,  66  L.  J. 
Q.  B.  643,  mines  were  granted  by  deed,  with  power  to  the  grantee  and 
his  assigns  to  work,  making  reasonable  compensation  for  all  damage 
occasioned  to  the  surface  of  the  lands,  or  to  buildings  thereon,  by  the 
exercise  of  the  powers.  It  was  held  by  Bbuce,  J.  (following  Davis 
V.  Trehamey  p.  682,  ante)^  that  damage  by  subsidence  was  not  covered 
by  the  compensation  clause,  and,  therefore,  the  assignees  of  the  grantee 
were  liable  to  an  action  to  recover  damages  for  injury  to  the  surface  by 
subsidence  caused  by  the  working  of  the  mines. 

AMERICAN  NOTES. 

Rouibotham  v.  Wilson  is  largely  cited  in  VTashbum  on  Easements,  and 
Love  V.  BeU  is  cited  in  Jones  on  Real  Property,  sect.  538.  The  right  of 
subjacent  support  has  been  sufficiently  considered  in  notes  to  Nos.  1  and  2, 
antey  p.  449. 


No.  21.  — CALEDONIAN  RAILWAY  COMPANY  v.  SPEOT. 

(1856.) 

No.  22.  — GREAT  WESTERN  RAILWAY  COMPANY  v. 

BENNETT. 

(H.  L.  1867.) 

RULE. 

Where  land  is  purchased  under  the  powers  of  an  Act  of 
Parliament  for  the  purposes  of  a  railway  or  other  artificial 
work  authorised  by  the  Act,  then,  in  the  absence  of  ex- 
press provisions  by  the  empowering  Act  or  by  the  instru- 
ment of  conveyance,  the  purchasers  acquire  with  the  land 
a  right  of  support  to  their  railway  or  other  authorised  work, 


686  MINES  AND  MINERALS. 


Vo.  21.  —  Caledofnian  Bailway  Co.  ▼.  Spxot,  1  Patenon  (Be.  App.),  688,  684. 

as  well  vertical  from  the  subjacent  minerals,  as  lateral  from 
the  adjacent  land  of  the  vendor. 

But  where  land  is  acquired  for  a  railway  made  under  an 
Act  incorporating  the  Railways  Clauses  Consolidation  Act, 
1845,  which  provides  that  the  railway  company  is  not  to 
be  entitled  to  the  underlying  minerals  not  expressly  pur- 
chased, but  that  the  landowner  on  giving  notice  may  com- 
pel the  company  to  buy  them ;  then  if  the  company  refuse 
to  purchase,  the  landowner  may  work  the  mines  without 
regard  to  any  support  to  the  railway. 

Caledonian  Bailway  Company  and  Olasgow,  Oamkirk,  and  Coatbridge 
Railway  Company  (Appellants)  y.  Sprot  (Bespondent). 

1  Paterson  (Sc.  App.),  633-642  (s.  c.  2  Macqaeen,  449). 
(Reprinted  here  by  permlMloii  of  Heeen.  Wm.  Oreen  &  Sons,  proprietor!  of  the  oopyrlghti.] 

[688]  BaUway.  —  Disposition.  —  Sale.  —  Reservation  of  Minerals.  —  Support 
of  Surface.  —  Construction. 

S.,  a  proprietor,  sold  to  a  railway  company  a  portion  of  his  land  oontiguoos 
to  the  line,  reserving  right  to  work  the  minerals,  but  the  conveyance  was  made 
subject  to  the  conditions  of  an  Act  of  Parliament  previously  obtained  by  the 
company,  which  provided  that  it  should  not  be  in  the  power  of  any  proprietor 
reserving  right  to  minerals  to  work  them,  without  previous  notice  and  security 
hi  damage  to  the  line.  It  turned  out  that  the  minerals  could  not  be  worked 
without  danger  to  the  line. 

Hdd  (reversing  judgment),  that  in  his  disposition  S.  by  implication  conveyed 
to  the  company  the  right  to  all  necessary  support  of  their  line  of  railway,  and 
he  could  not  derogate  from  that  conveyance  by  working  the  mines  and  removing 
that  support 

An  action  of  declarator  and  damages  was  raised  at  the  instance 
of  Mark  Sprot,  Esq.,  of  Gamkirk,  against  the  railway  companies,  in 
respect  to  certain  minerals  belonging  to  him  under  and  adjacent 

to  the  Caledonian  Eailway. 
[♦  634]       *  On  12th  December,  1834,  the  pursuer  entered  into  an 

agreement  with  what  was  then  called  the  Gamkirk  and 
Glasgow  Railway  Company,  by  which,  for  certain  sums  of  money, 
amounting  in  all  to  £624  55.  lljrf.,  he  sold  and  conveyed  to  them 
certain  portions  of  the  estate  of  Gamkirk,  but  "  reserving  always  to 
me  and  my  heirs  and  successors  the  whole  mines  and  minerals, 


B.  C.  VOL.  XVn.]      SECT.  IV.  —  BIGHTS  OF  SUPPOBT.  687 

Ho.  81.  —  OiiladanliHi  Bailvay  Oo.  ▼.  Sprot,  1  Patenooi  (So.  App.),  684. 

of  whatever  description,  within  the  said  lands  hereby  conveyed, 
and  full  power  and  liberty  to  us,  or  any  person  or  persons  author- 
ised by  us,  to  search  for,  work,  win,  and  carry  away  the  same,  and 
to  make  aqueducts,  levels,  drains,  roads,  and  others  necessary  for  all 
or  any  of  these  purposes,  but  subject  always  to  the  provisions  and 
conditions  of  the  said  Acts  of  Parliament  in  relation  to  the  working 
of  minerals  for  the  protection  and  security  of  the  said  company, 
and  the  said  railway  and  works  and  traffic  thereon." 

The  provisions  in  the  Gamkirk  and  Glasgow  Act,  7  Geo.  IV.,  a 
103,  s.  11,  in  the  case  of  proprietors  reserving  their  minerals,  referred 
to  in  the  above  disposition,  was,  '*  Provided  always,  further,  never- 
theless, that  it  shall  on  no  account  be  lawful  to,  or  in  the  power  of, 
any  such  proprietor,  to  work,  win,  or  away  take  any  of  the  said 
minerals  without  giving  previous  good  and  sufficient  security  to 
the  said  company  for  all  damages,  interruption  of  traffic,  and  other 
injury  which  may  thence  in  any  way  result  to  the  said  undertaking 
or  the  said  company ;  and  in  the  event  of  the  said  company  and 
any  such  proprietor  not  agreeing  in  regard  to  the  extent  or  suffi- 
ciency of  such  security,  then  the  Judge  Obdinaby  of  the  bounds 
shall  regulate  and  determine  thereupon,  as  to  him  shall  appear 
just." 

This  Gamkirk  and  Glasgow  Eailway,  which  was  at  first  merely 
a  mineral  line  worked  by  horse  power,  was  in  1844  extended  and 
changed,  by  Act  of  Parliament,  7  &  8  Vict,  c.  87,  into  the  "  Glas- 
gow, Gamkirk,  and  Coatbridge  Eailway  Company."  Next  year  the 
new  company  was  empowered  to  widen  and  improve  the  gauge  of 
their  rails  by  Act  8  &  9  Vict,  c.  31,  and  finally,  in  1846,  the 
whole  line  was  sold  to  and  merged  in  the  Caledonian  Bailway 
Company  by  the  Act  9  &  10  Vict.,  c.  9. 

In  the  first  of  the  above-recited  Acts  the  7  &  8  Vict.,  c.  87,  there 
were  inserted  several  clauses  in  regard  to  the  minerals  under  or 
adjacent  to  the  line.  It  was  provided  in  sect.  84,  to  protect  the 
railway,  that  "  if  the  owner,  lessee,  or  occupier  of  any  mines  or  min- 
erals lying  under  the  railway,  or  any  of  the  works  connected  there- 
with, or  within  forty  yards  therefrom,  be  desirous  of  working  the 
same,  such  owner,  lessee,  or  occupier  shall  give  to  the  company 
notice  in  writing  of  his  intention  so  to  do  thirty  days  before  the 
commencement  of  working ;  and  upon  the  receipt  of  such  notice 
it  shall  be  lawful  for  the  company  to  cause  such  mines  to  be 
inspected  by  any  person  appointed  by  them  for  the  purpose ;  and 


688  MINES  AND   MINERAI^. 

Ho.  21.  — Gtledonian  Bailwfty  Co.  ▼.  Sprot,  1  Patenon  (8e.  App.X  6S^ 

if  it  appear  to  the  company  that  the  working  of  such  mines  or 
minerals  is  likely  to  damage  the  works  of  the  railway,  and  if  the  I 

company  be  willing  to  make  compensation  for  such  mines  to  such 
owner,  lessee,  or  occupier  thereof,  then  he  shall  not  work  or  get  the 
same." 

And  in  sect  85 :  "  That  if  before  the  expiration  of  such  thirty  I 

days,  the  company  do  not  state  their  willingness  to  treat  with  such  I 

owner,  lessee,  or  occupier,  for  the  payment  of  such  compensation, 
it  shall  be  lawful  for  him  to  work  the  said  mines,  so  that  the  same  i 

be  done  in  manner  proper  and  necessary  for  the  beneficial  working  I 

thereof ;  and  if  any  damage  or  obstruction  be  occasioned  to   the  | 

railway  or  works  by  improper  working  of  such  mines,  the  same 
shall  be  forthwith  repaired  or  removed,  as  the  case  may  require,  j 

by  the  owner,  lessee,  or  occupier  of  such  mines  or  minerals,  and  at 
his  own  expense ;  and  if  such  repair  or  removal  be  not  forthwith 
done,  it  shall  be  lawful  for  the  company  to  execute  the  same,  and 
recover  from  such  owner,  lessee,  or  occupier  the  expense  occasioned 
thereby,  by  action  in  any  competent  courts." 

In  the  Caledonian  Company  Act  are  incorporated  the  general 
regulations  as  to  mines  and  minerals  in  the  Railway  Clauses 
Consolidation  (Scotland)  Act,  8  &  9  Vict.,  c.  33,  ss.  70,  71,  72,  3, 4, 
5,  6,  7,  and  8. 

Since  1834  the  pursuer  discovered  that  there  was  a  valuable  field 
of  fire  clay  in  that  part  of  his  estate  traversed  by  the  railway,  lying 
partly  under  the  line  of  railway,  as  well  as  on  both  sides  of  it, 
and  he  proceeded  to  work  the  minerals  very  extensively,  having, 
according  to  his  averment,  expended  upon  the  works  a  sum  of 
between  £20,000  and  £30,000. 

In  August,  1848,  he  received  a  letter  from  the  defender's  agents 
intimating  that  the  works  carried  on  in  the  fire  clay  mines  were 
endangering  the  safety  of  the  railway,  and  calling  upon  him  to 
find  security  to  the  company  for  damages,  interruption  of  traffic, 
and  other  injury.  To  this  there  was  appended  a  report  by  G.  W. 
Hobson,  engineer,  who  stated  that  "  Directly  under  the  railway 
the  depth  from  the  surface  to  the  top  of  the  fire  clay  bed  does  not 
exceed  eighty  feet,  and  the  thickness  of  the  clay  being  eight  feet, 
it  follows  that  the  excavation  or  void  will  also  be  eight  feet, 
except  at  those  places  where  the  roof  has  already  sunk ;  and 
recommended:  1.  That  if  possible  the  railway  company  should 
stop  any  further  working  of  the  fire  clay  within  sixty  feet  of  the 


B.  C.  VOL.  XVII.]      SECT.  IV.  —  BIGHTS   OF  SUPPORT.  689 

Ho.  21.  —  CalacUmian  Bailway  Co.  ▼.  Sprot,  1  Fatenoa  (So.  App.),  691,  686. 

centre  of  the  railway  between  the  points  A.  and  B.  on  the  plan. 
2.  That  the  spot  should  be  watched,  and  if  partial  sinking  takes 
place,  the  rails  should  be  raised  and  laid  on  strong  longitudinal 
sleepers,  resting  on  cross  sleepers,  and  that  these  cross  sleepers 
should  be  twenty-four  feet  long,  so  as  to  extend  under,  and  some 
distance  beyond,  both  lines  of  rails.  3.  That  any  future  working 
of  this  clay  to  the  west  of  A.  or  east  of  B.  should  only  be 
permitted  *  if  done  by  means  of  narrow  mines,  not  exceed-  [*  635] 
ing  eight  feet  in  width,  to  be  driven  at  right  angles  to  and 
under  the  railway.  These  mines  not  to  be  closer  to  each  other 
than  thirty  feet,  and  to  have  no  cross  mines  or  rooms  between 
them,  until  they  extend  beyond  the  distance  of  sixty  feet  from 
the  centre  of  the  railway  on  each  side ;  but  after  passing  these 
limits  the  workings  may  be  widened  out  to  the  usual  dimensions 
and  form." 

The  ground  conveyed  by  the  pursuer  to  the  railway  company 
did  not  comprehend  the  whole  space  mentioned  in  Mr.  Robson's 
report,  extending  sixty  feet  on  each  side  from  the  centre  of  the  rail- 
way, between  the  points  A.  and  B.  on  the  plan,  and  within  which 
the  company's  engineer  has  reported  the  fire  clay  cannot  be  worked 
without  endangering  the  security  of  the  railway. 

In  these  circumstances  the  pursuer,  on  13th  September,  1848, 
in  terms  of  the  71st  section  of  the  Railway  Clauses  Act,  8  &  9  Vict, 
c.  33,  served  a  notice  on  the  secretary  of  the  Caledonian  Company, 
intimating  his  intention  of  working  the  minerals  under  and  adja- 
cent to  the  railway. 

The  company,  however,  declined  to  avail  themselves  of  the 
option  given  by  that  statute  of  purchasing  the  minerals,  or  of 
paying  compensation  to  the  pursuer  for  leaving  them  unworked, 
and  insisted  on  his  finding  caution  for  damages,  &c.,  before 
proceeding. 

The  pursuer  consequently  raised  the  present  action  of  declarator 
of  his  right  to  work  the  minerals  both  in  the  lands  contiguous  to 
and  under  the  railway.  The  value  of  these  minerals  was  estimated 
by  him  at  £50,000.  He  likewise  claimed  damage  for  the  loss  sus- 
tained by  the  interruption  of  his  workings  since  August,  1848, 
estimating  it  at  £10,000. 

The  Court  of  Session  held  that  this  was  a  casus  omissuSy  and  that 
the  company  were  bound  to  purchase  the  minerals  under  the  line  of 
railway  and  adjacent  thereto. 
VOL.  XVII.  —  44 


690  MINES  AND   MINERALS. 

Ho.  21.  — Caledoiiian  Bailwfty  Co.  ▼.  Sprot,  1  Patenon  (8o.  App.),  686. 

The  railway  company  appealed  against  the  judgment  of  the 
Court  of  Session,  maintaining  that  it  ought  to  be  reversed,  because, 
1.  The  rights  and  obligations  of  parties,  as  fixed  by  the  statute  of 
1826,  and  the  disposition  of  1834,  are  inconsistent  with  the  find- 
ings and  interlocutors  appealed  from.  According  to  a  just  view  of 
these  rights  and  obligations,  the  appellants  were  entitled  to  be 
secured  against,  and  indemnified  on  account  of,  operations  danger- 
ous and  injurious  to  the  railway,  whether  these  operations  are 
carried  on  under  or  near  it;  and  the  respondent  was  bound,  before 
commencing  operations  on  the  minerals  below  the  line,  to  find 
caution  to  indemnify  the  appellants  against  the  consequences  of 
these  operations.  7  Gteo.  IV.,  c.  103 ;  Samuel  v.  Edinburgh  and 
Glasgow  Railway  Co,,  11  D.  968,  13  D.  312 ;  Bell's  Principles, 
s.  963.  2.  The  original  rights  and  obligations  of  parties  in  regard 
to  the  minerals  under  and  near  the  line  were  not  affected  by  the 
statutes,  special  or  general,  passed  subsequent  to  1834.  9  &  10 
Vict,  c.  329,  s.  3 ;  7  &  8  Vict.,  c.  87.  3.  Neither  the  contract,  nor 
the  rights  and  obligations  under  the  contract,  were  rescinded  or 
altered  by  reason  of  the  increase  of  traffic  on  the  line. 

The  respondent  supported  the  judgment  on  the  following 
grounds:  1.  Because  the  matters  remitted  by  the  Court  under 
their  interlocutor  of  date  31st  March,  1853,  to  be  reported  upon, 
formed  a  proper  and  relevant  subject  of  inquiry ;  and  because  the 
information  obtained  under  the  report  had  a  most  important  bear- 
ing upon  the  main  question  in  dispute.  2.  Because,  under  the 
transaction  of  1834,  viewed  in  conformity  with  the  local  statutes 
upon  which  it  proceeded,  the  condition  as  to  finding  security  was 
not  intended  nor  calculated  to  destroy  the  reservation  of  the  whole 
minerals,  and  the  reservation  formed  a  material  part  of  the  trans- 
action; and  the  respondent  was  entitled  either  to  work  his  min- 
erals so  reserved,  or  to  receive  compensation  for  such  part  as 
the  interests  of  the  railway  required  to  be  left  unworked  3.  Be- 
cause  the  minerals  in  the  lands  of  the  respondent,  situated  on  either 
side  of  the  strip  of  ground  sold  by  him  to  the  railway  company,  did 
not  fall  within,  nor  were  in  any  respect  affected  by,  the  transac- 
tion, or  by  local  Acts ;  and  because,  in  so  far  as  the  minerals  were 
not  regulated  by  the  statutory  provisions  aftermentioned,  the 
respondent,  at  common  law,  was  entitled  to  the  unrestrained  use 
and  enjoyment,  or  at  least  his  use  and  enjoyment  was  only  liable 
lo  be  restrained  witliin  fair  and  reasonable  limits,  upon  full  com- 


R,  C.  VOL.  XVH.]      SECT.  IV.  —  RIGHTS   OF  SUPPORT.  691 

Ho.  81.  —  Galedoiiian  Ballwfty  Co.  ▼.  Sprot,  1  Patenon  (So.  App.),  685,  636. 

pensation.  4.  Because  the  questions  at  issue  were  conclusively  reg- 
ulated in  favour  of  the  respondent,  not  only  by  the  mining  clauses 
contained  in  the  local  Act  of  7  &  8  Vict,  c.  87,  but  also,  and  more 
particularly,  by  the  analogous  and  more  complete  provisions  in  the 
general  Act  8  &  9  Vict.,  c.  33,  entitled  "The  Railway  Clauses 
Consolidation  (Scotland)  Act,  1845."  Act  7  Geo.  IV.,  c.  103,  s.  6 ; 
Act  7  Geo.  IV.,  c.  103,  ss.  26  and  27 ;  first  branch  of  the  case,  the 
subjacent  minerals,  7  Geo.  IV.,  c.  103,  26th  May,  1826 ;  7  &  8  Vict, 
c.  87,  17th  July,  1844;  Clauses  Act,  8  &  9  Vict.,c.  33,  21st  July, 
1845 ;  Lord  Fullerton's  note  in  Murray  v.  Johnston,  13  S.  119 ; 
Ersk.  ii.  1,  s.  2 ;  Dunlop  v.  Robertson,  Hume's  Dec.  515 ;  Robertson 
v.  Strang,  4  S.  6 ;  5  &  6  Vict,  c.  55. 

Sir  F.  Kelly,  Q.  C,  Eolt,  Q.  C,  and  Anderson,  Q.  C,  for  the 
appellants.  —  The  Act  of  1826  empowered  the  owner  of  any  lands 
taken  "or  prejudiced"  to  claim  satisfaction  for  all  damage  to  be 
sustained  in  or  by  the  execution  of  the  powers  of  that  Act,  so  that 
the  respondent  was  entitled  to  include  every  possible  kind  of  dam- 
age, actual  or  contingent,  in  his  demand.  It  is  a  well-known 
rule  under  Acts  of  this  kind,  that  the  owner,  in  making  his  claim, 
must  include  everything  in  the  shape  of  damage  that  can  accrue  to 
the  end  of  time,  and  is  not  entitled  to  return,  time  after  time,  on 
some  fresh  and  unforeseen  damage  emerging,  and  thus  eke  out  his 
claim.  R.  v.  Leeds  and  Selby  Railway  Co.,  3  Ad.  &  El.  683. 
Landowners  in  such  cases  seldom  err  in  including  *  too  [*  636] 
little.  Since,  therefore,  the  respondent  here  chose  to  re- 
serve his  property  in  the  minerals  beneath  the  line  of  railway,  he 
ought  to  have  made  a  claim  for  the  damage  he  must  needs  suffer 
by  being  unable  to  work  them  without  giving  security.  The  con- 
veyance, in  granting  the  surface  of  the  land  for  the  purpose  of 
a  railway  being  constructed  on  it,  necessarily  conveyed  also,  by 
implication,  a  right  of  support  from  the  subjacent  and  adjacent 
soil ;  besides,  it  expressly  states  that  the  property  in  the  minerals, 
and  the  right  to  work  them,  are  subject  to  the  safety  of  the  railway. 
It  is  a  well-settled  principle,  which  has  often  been  discussed  of  late 
in  the  English  Courts,  and  is  universal  law,  that  when  a  party 
conveys  his  land  for  a  particular  purpose,  he  cannot  by  his  acts 
derogate  from  that  purpose.  Thus,  when  the  respondent  disponed 
the  surface  of  the  land,  in  order  that  a  railway  might  be  con- 
structed on  it,  he  could  not  by  working  his  minerals,  whether  in 
the  soil  subjacent  or  adjacent,  do  anything  to  defeat  the  purpose 


692  MINES  AND  MINEBALS. 

ITo.  21.  — Galedoniaii  Bailwfty  Co.  ▼.  8prot,  1  Patenon  (8e.  App.),  6S6. 

for  which  the  land  was  granted  Harris  v.  Byding,  5  M.  &  W.  60  •, 
Hilton  V.  Sari  Granville,  5  Q.  B.  701 ;  Jeffreys  v.  Williams,  5  Ex. 
792 ;  Humphries  v.  Brogden,  12  Q.  B.  739  (p.  407,  ante^ ;  Smart  v. 
Morton,  5  Ell.  &  BL  30.  So  it  is  in  Scotland.  Bell's  Prin.  670 
(4th  ed.)  ;  Bald's  Trustees  v.  Earl  of  Mar,  16  D.  870.  There  was 
nothing  in  the  subsequent  Acts  of  Parliament  which  altered  this 
relation  of  the  parties. 

Solicitor-General  (Betheli),  R  Palmer,  Q.  C,  and  A.  Brown,  for 
the  respondent.  —  The  Act  of  1826  contemplated  that  the  damage 
might  be  sustained  from  time  to  time,  and  that  satisfaction  might 
be  demanded  from  time  to  time.  See  sect.  89.  It  was  the  duty  of 
the  company  to  pay  for  all  that  was  necessary  to  enable  them  to 
construct  their  railway,  and  to  support  it  when  made,  and  they 
cannot  complain  if  they  are  now  called  upon  to  pay  for  the  min- 
erals which  they  knew  they  did  not  pay  for  in  the  first  instance, 
probably  because  they  thought  they  would  not  require  the  whole 
of  the  subjacent  soil  to  support  the  railway.  It  is  not  denied  that 
a  conveyance  of  the  surface  of  land  generally  carries  with  it  an 
implied  right  of  support  from  the  subjacent  soil ;  but  it  is  other- 
wise when  there  is  an  express  reservation  of  the  soil  below,  for  then 
the  grantee  of  the  surface  takes  his  chance  of  the  minerals  being 
necessary  to  support  the  surface.  [Lord  Brougham.  —  You  say,  if 
I  grant  the  surface  of  my  land  to  you  for  the  purpose  of  enabling 
you  to  construct  a  railway  on  it,  and  reserve  to  myself  the  minerals, 
I  may  go  on  working  these  so  long  as  an  inch  thick  of  surface  re- 
mains ?] 

Yes,  we  go  that  length.  The  one  is  as  much  entitled  to  the 
minerals  as  the  other  is  to  the  surface.  This  seems  to  be  taken 
for  granted  in  Hilton  v.  Earl  Granville,  5  Q.  B.  701.  If,  however, 
the  respondent  is  not  entitled,  under  the  original  Act  and  his  con- 
veyance, to  demand  compensation,  he  is  entitled  under  the  General 
Railways  Clauses  Consolidation  Act,  which  was  incorporated  with 
the  other  Acts,  and  expressly  empowers  him  to  demand  compensa- 
tion. 

Sir  F.  Kelly  replied.  —  The  General  Railways  Clauses  Act  cannot 
govern  the  rights  of  the  parties,  which  must  stand  on  the  original 
Act  and  the  conveyance.  The  general  Act  applied  only  to  future 
local  Acts,  and  has  no  retrospective  operation.  If  it  were  otherwise, 
great  mischief  would  be  produced,  for  almost  every  railway  made 
under  previous  local  Acts  would  have  to  be  taken  to  pieces  in  order 


R.  C.  VOL.  XVn.]       SECT.  IV.  —  EIGHTS  OF  SUPPORT.  693 

Ho.  81. — Caledoniaa  Bailwfty  Co.  ▼.  Sprot,  1  Patenon  (So.  App.),  686,  687. 

to  reconstruct  the  bridges  and  levels,  &c.,  so  as  to  correspond  with 
the  minute  provisions  enacted  by  the  general  Act,  which  is  absurd 

Cur.  adv.  vulL 

Lord  Chancellor  Craitworth.  —  This  appeal  arose  out  of  an  action 
which  had  been  brought  by  the  respondent  against  the  appellants, 
the  object  of  which  was  to  compel  them  to  purchase  certain  min- 
erals belonging  to  him,  situate  under  and  near  the  line  of  their 
railway.  Several  Acts  of  Parliament  came  in  question  in  this  case, 
—  first,  the  original  Act  7  Geo.  IV.,  c.  103,  which  is  an  Act  for 
making  a  railway  from  the  Monkland  and  Kirkintilloch  Railway 
by  Gamkirk  to  Glasgow.  Under  that  Act  there  were  the  usual 
powers  enabling  the  company  to  be  incorporated  for  the  purchase 
of  lands ;  and  pursuant  to  the  powers  given  by  that  Act  on  12th 
December,  1834,  between  eight  and  nine  years  after  the  passing  of 
the  Act,  the  respondent  sold  to  the  company,  in  consideration  of  a 
sum  of  about  £620,  some  land  of  his  over  which  the  railway  was  to 
pass,  reserving,  however,  the  minerals.  Then  there  passed  some 
amending  Acts.  Before  that  conveyance  had  been  made,  two  Acts 
extending  the  powers  of  the  company  had  passed ;  but  they  are 
not  material  to  be  considered.  By  the  Act  of  1844  the  name  of 
the  company  was  changed,  and  it  was  called  at  that  time  the 
Glasgow,  Gamkirk,  and  Coatbridge  Railway  Co.  There  was  then 
another  Act  improving  the  gauge  of  the  railway,  and  there  passed  on 
the  21st  of  July,  1845,  the  Scottish  General  Railway  Act.  In  the 
same  year  an  Act  was  passed  by  which  the  Caledonian  Railway 
Co.  was  incorporated,  and  then,  in  the  year  1846,  an  Act  enabling 
the  Caledonian  Railway  Co.  to  purchase  the  Glasgow,  Gamkirk,  and 
Coatbridge  Railway. 

The  respondent  having  sold  his  land  to  the  original  company, 
but  having  reserved  to  himself  the  mines,  was  proceeding  to  work 
certain  mines  under  and  near  the  line  of  railway  in  the  year  1848, 
when,  upon  the  17th  August  in  that  year,  he  received  a  notice 
from  the  company  calling  upon  him  to  desist  from  what  he  was  so 
proceeding  to  do.  Having  set  forth  the  rights  of  the  company, 
the  summons  states  this:  "Under  these  circumstances, 
the  pursuer  proceeded  with  *  the  working  of  the  fireclay  [*  637] 
and  other  minerals  in  his  said  lands  of  Gamkirk,  in  due 
and  ordinary  course,  until  he  was  interrupted  by  the  said  Cale- 
donian Railway  Co.     That  on  or  about  the  17th  August,  1848,  the 


694  MINES  AND  MINERALS. 

Ho.  21.  —  Caladonlii  Bailvay  Co.  ▼.  Sprot,  1  Patenon  (8o.  App.),  687. 

agents  for  the  company  addressed  a  letter  to  the  manager  at  the 
Garnkirk  works,  intimating  that  they  had  received  a  report  from 
their  engineer  that  the  works  then  in  the  course  of  being  carried 
on  in  the  fireclay  mines  under  the  line  of  the  Gramkirk  Eailway, 
at  the  Garnkirk  brickworks,  were  of  a  nature  to  endanger  the 
safety  of  the  railway,  and  calling  upon  the  proprietor  of  the  min- 
erals to  find  security  to  the  company  for  all  damages,  interruption 
of  traffic,  and  other  injury  which  might  result  to  the  company 
before  any  further  workings  were  proceeded  with."  The  summons 
then  states  what  took  place  upon  that ;  but  eventually  the  appel- 
lants persisting  that  he  had  no  right  to  work  them,  the  respond- 
ent brought  the  action  out  of  which  the  present  appeal  arose,  in 
which,  stating  all  these  Acts  of  Parliament,  and  stating  what  had 
been  done,  he  concludes  thus:  "Therefore,  it  ought  and  should 
be  found  and  declared,  by  decree  of  the  Lords  of  our  Council  and 
Session,  that  the  said  Caledonian  Eailway  Co.,  or  the  said  Glasgow, 
Garnkirk,  and  Coatbridge  Eailway  Co.,  or  either  of  them,  defenders, 
have  no  right  of  property  in  the  minerals  in  the  lands  of  Garnkirk, 
situated  under  and  adjacent  to  the  Glasgow,  Garnkirk,  and  Coat- 
bridge Eailway,  or  any  part  thereof ;  but  that  the  property  of  the 
said  minerals  is  still  vested  in  and  belongs  to  the  pursuer,  subject 
to  any  right  of  purchase  or  right  to  prevent  the  working  thereof, 
on  making  compensation  for  the  same,  competent  to  the  said  de- 
fenders, or  either  of  them,  under  the  said  Acts  of  Parliament" 
And  further, "  it  ought  and  should  be  found  and  declared,  by  decree 
aforesaid,  that  the  proviso  or  enactment  in  the  11th  section  of 
7  Geo.  IV.,  c.  103,  whereby  it  is  declared  that  it  shall  not  be  lawful 
to  or  in  the  power  of  any  proprietor  to  whom  satisfaction  has  been 
made,  to  work,  win,  or  away  take  the  said  minerals,  without  giving 
previous  security  to  the  Glasgow  and  Garnkirk  Eailway  Co.,  or 
their  successors,  for  damages,  interruption  of  traffic,  and  other 
injury  resulting  to  the  said  company,  and  their  said  undertaking 
does  not  in  any  respect  apply  to  the  minerals  in  the  lands  adjacent 
to  the  railway  belonging  to  the  pursuer,  which  were  not  conveyed 
or  included  in  the  disposition  granted  by  him  to  the  railway  com- 
pany in  1834;  and  notwithstanding  the  proviso  or  enactment  in 
the  said  statute,  and  the  terms  of  the  said  disposition,  the  pursuer 
is  entitled  to  obtain  compensation  from  the  defenders,  or  either  of 
them,  for  all  minerals  under  or  adjacent  to  the  line  of  railway 
which  were  not  purchased  by  the  railway  company  or  their  sue- 


R.  C.  VOL.  XVIL]        sect.  IV. — RIGHTS   OF   SUPPORT.  695 

ITo.  21.  — Galedimiaa  Bailway  Oo.  ▼.  Sprot,  1  Patenan  (Be.  App.),  637. 

cessoTS,  and  which  the  pursuer  or  his  tenants  are  prevented  from 
working  by  reason  of  the  necessity  of  maintaining  the  railway  in  a 
state  of  security,  or  by  reason  of  the  restriction  imposed  upon  him 
not  to  injure  the  railway :  and  further,  it  ought  and  should  be 
found  and  declared,  by  decree  foresaid,  that  the  pursuer  is  entitled 
to  obtain  full  compensation  from  the  defenders,  that  is,  the 
Caledonian  Bailway  Co.,  and  other  companies,  or  either  of  them, 
for  the  whole  minerals  in  the  lands  of  Garnkirk  not  purchased  by 
the  railway  company  or  their  successors,  and  which  cannot  be 
wrought  without  danger  to  the  railway  and  works,  and  that  within 
the  limits  specified  in  the  report  of  Mr.  Robson,  the  engineer  of 
the  company,  dated  3rd  August,  1848,  or  as  the  same  may  be 
ascertained  in  the  course  of  the  process  to  follow  hereon." 

That  being  the  summons,  there  was  a  condescendence  and  a 
statement  in  answer;  and  eventually,  on  the  8th  March,  1851,  the 
Lord  Ordinary  pronounced  an  interlocutor  assoilzieing  the  defend- 
ers, having  come  to  the  conclusion  that  the  respondent,  by  the 
sale  to  the  defenders  of  his  lands,  although  he  reserved  the  min- 
erals, had  nevertheless  precluded  himself  from  working  the  min- 
erals, either  under  or  adjacent  to  the  railway,  so  as  to  prejudice  the 
railway.  That  decision  of  the  Lord  Ordinary  was  brought  by 
way  of  reclaiming  petition  to  the  Court  of  Session,  and  they  took 
this  course:  "Before  answer,  and  under  express  reservation  of 
all  pleas  or  questions  competent  to  the  parties  under  the  record,'* 
they  remitted  the  case  to  Mr.  Leslie  and  Mr.  Lonsdale,  the  one  a 
civil  engineer,  and  the  other  a  mining  engineer,  '*  to  examine  the 
subjects,  and  to  inquire  and  report,  first,  whether,  having  reference 
to  the  nature  of  the  railway,  which  was  made  under  the  powers  of 
the  original  Acts,  the  minerals  under  the  railway  could  have  been 
worked  with  safety  to  the  railway,"  and  with  reasonable  prospect 
of  advantage  to  the  proprietor,  subject  to  the  obligation  of  fair 
caution,  in  terms  of  the  original  Act ;  and,  second,  whether,  and 
in  what  respects,  and  to  what  extent,  the  alterations  made  in  the 
uses  and  structure  of  the  railway  by  or  under  the  authority  of  the 
Acts  of  1844, 1845,  and  1846,  or  any  of  them,  materially  affected 
the  practicability  of  working  the  minerals.  These  gentlemen  made 
their  report :  "  That,  having  reference  to  the  nature  of  the  railway 
made  under  the  powers  of  the  original  Acts,  the  minerals  could 
not  have  been  worked  with  safety  to  the  railway  as  they  were 
in  the  habit  of  being  worked ;  but  that  fully  one-third  or  nearly 


696  MINES  AND  MINERALS. 


ITo*  21.  — OBledonian  Bailwfty  Go.  ▼.  Sprot,  1  Patenon  (Be.  App.),  687,  688. 

ii 

one-half  of  the  fireclay  could  have  been  taken  out  from  under,  or 
for  sixty  feet  on  each  side  of,  the  centre  of  the  railway,  by  single 
mines,"  and  so  on,  which  is  not  the  ordinary  way  of  working ;  and, 
secondly,  "  that  the  railway  being  thus  secured,  it  is  of  no  conse- 
quence to  the  stowed  mines  or  cased  pillars  how  many  or  how 
frequent  the  trains  are  ; "  and  they  added :  "  The  reporters  do  not 
think  that  the  increased  traffic,  or  the  alterations  of  the  structure 
and  uses  of  the  railway,  have  materially  affected  the  practicabil- 
ity of  working  the  minerals  under  and  adjacent  to  the  railway." 
When  that  report  was  brought  before  the  First  Division  of  the 
Court  of  Session,  they  took  a  different  view  from  that 
[*638]  which  had  been  *  taken  by  the  Lord  Ordinary.  They 
found  that  the  consideration  paid  to  the  respondent  did 
not  include  compensation  for  the  loss  of  the  minerals,  and  that 
he  was  entitled  to  work  the  minerals  unless  the  company  thought 
fit  to  purchase  them.  From  that  decision  the  present  appeal 
was  brought 

The  respondent,  by  his  conveyance,  dated  12th  December,  1834, 
conveyed  to  the  original  Garnkirk  Co.  a  portion  of  his  land  re- 
quired for  the  line  of  the  company,  in  consideration  of  a  sum  of 
money  agreed  on  as  a  price  and  then  paid  to  him.  The  convey- 
ance was  expressly  made  for  the  purpose  of  the  land  conveyed 
being  used  as  a  railway.  He,  however,  reserved  all  mines  under 
the  land  so  conveyed,  with  full  liberty  to  win  and  work  the  min- 
erals. Independently  of  any  provisions  contained  in  the  Act  of 
Parliament,  the  effect  of  that  conveyance  was  to  convey  the  land 
to  be  covered  by  the  railway  to  the  company,  together  with  a  right 
to  all  reasonable  subjacent  and  adjacent  support.  A  right  to  such 
support  is  a  right  necessarily  connected  with  the  subject-matter 
of  the  grant.  If  the  owners  of  a  house  were  to  convey  the  upper 
story  to  a  purchaser,  reserving  all  below  the  upper  story,  such 
purchaser  would,  on  general  principles,  have  a  right  to  prevent  the 
owner  of  the  lower  stories  from  interfering  with  the  walls  and 
beams  upon  which  the  upper  story  rests  so  as  to  prevent  them 
from  affording  proper  support,  so  far,  at  all  events,  as  to  prevent  a 
person  who  has  granted  a  part  of  his  land  from  so  dealing  with 
that  which  he  retains  as  to  cause  what  he  has  granted  to  sink  or 
fall.  How  far  such  adjacent  support  must  extend  is  a  question 
which,  in  each  particular  case,  will  depend  on  its  own  special  cir- 
cumstances.    If  the  line  dividing  that  which  is  granted  from  that 


R.  C.  VOL.  XVII.]        SECT.  IV. — RIGHTS  OF  SUPPORT.  697 

Ho.  81.  — Galedoniaa  Bafiway  Gk>.  ▼.  Sprot,  1  Patenon  (Bo.  App.),  688. 

which  is  retained  traverses  a  quarry  of  hard  stone  or  marble,  it 
mav  be  that  no  adjacent  support  at  all  is  necessary.  If,  on  the 
other  hand,  it  traverses  a  bed  of  sand,  a  marsh,  or  a  loose  gravelly 
soil,  it  may  be  that  a  considerable  breadth  of  support  is  necessary 
to  prevent  the  land  granted  from  falling  away  upon  the  soil  of 
what  is  retained.  Again,  if  the  surface  of  the  land  granted  is 
merely  a  common  meadow  or  a  ploughed  field,  the  necessity  for 
support  will  probably  be  much  less  than  if  it  were  covered  with 
buildings  or  trees ;  and  it  must  be  further  observed,  that  all  which 
a  grantor  can  reasonably  be  considered  to  grant  or  warrant,  is  such 
measure  of  support  subjacent  and  adjacent  as  is  necessary  for  the 
land  in  its  condition  at  the  time  of  the  grant,  or  in  the  state,  for 
the  purpose  of  putting  it  into  which  the  grant  is  made.  Thus,  if 
I  grant  a  meadow  to  another,  retaining  both  the  minerals  under  it 
and  also  the  adjoining  lands,  I  am  bound  so  to  work  my  mines 
and  to  dig  my  adjoining  lands  as  not  to  cause  the  meadow  to  sink 
or  fall  over ;  but  if  I  do  this,  and  the  grantee  thinks  fit  to  build  a 
house  on  the  edge  of  the  land  he  has  acquired,  he  cannot  com- 
plain of  my  working  or  digging,  if  by  reason  of  the  additional 
weight  he  has  put  on  the  land,  they  cause  his  house  to  fall.  If, 
indeed,  the  grant  is  made  expressly  to  enable  the  grantee  to  build 
his  house  on  the  land  granted,  then  there  is  an  implied  warrant 
of  support  subjacent  and  adjacent,  as  if  the  house  had  already 
existed. 

Applying  these  principles  to  this  case,  it  is  clear  that,  by  the 
effect  of  the  conveyance  of  the  12th  December,  1834,  the  Garnkirk 
Company  acquired  a  right  to  the  surface  of  the  ground  traversed 
by  the  railway,  together  with  a  right,  as  against  the  respondent, 
to  such  subjacent  and  adjacent  support  as  was  necessary  for  en- 
abling them  to  maintain  and  work  the  railway.  The  conveyance 
is  in  these  terms:  "I,  Mark  Sprot,  Esq.,  of  Garnkirk,  considering 
that,  in  the  year  1826,  by  Act  of  Parliament,  7  Geo.  IV.,  c.  100, 
entitled,  &c.,  the  Garnkirk  and  Glasgow  Eailway  Co.  was  incorpo- 
rated, and  that  it  was  agreed  between  me  and  the  committee  of 
proprietors  of  said  railway,  that  the  value  of  the  land  belonging  to 
me  to  be  occupied  by  said  railway,  as  well  as  all  damages  done  to 
my  property,  should  be  ascertained  by  David  Leighton,  then  factor 
at  Coltness.  That  the  railway  company  having  in  the  year  1827 
commenced  making  said  railway  "  (and  then  there  is  a  calculation 
of  the  interest  and  certain  other  damages,  making  altogether  £624, 


698  MINES  AND  MINERALS. 


Ho.  21.  —  Caledonian  Bailway  Co.  ▼.  Sprat,  1  Pateraon  (So.  App.),  6S8,  6S8. 

the  original  purchase-money  being  only  £379,  and  it  proceeds 
thus) :  "  and  in  consideration  of  the  foresaid  sum  of  £379,  being 
the  specific  and  agreed  on  value  of  the  land  hereby  conveyed,  I,  the 
said  Mark  Sprot,  do,  by  these  presents,  grant  and  convey  to  the 
said  company  of  proprietors,  but  always  for  the  said  railway  and 
works  thereto  belonging  and  not  otherwise.  All  and  whole  that 
portion  of  my  estate  described,  &c.,  declaring  that  I  shall  have  full 
power  to  take  into  my  own  hands  the  slopes  or  banks  on  that 
portion  of  the  line  betwixt  the  parish  road  and  the  crossing  of  the 
Cumbernauld  road,  at  or  near  Stepps,  for  the  purpose  of  feuing  or 
otherwise,  under  such  conditions  and  restrictions  always  as  shall 
not  interfere  with  the  due  and  regular  operations  of  the  said  rail- 
way ;  I,  the  said  Mark  Sprot,  and  my  foresaids,  paying  such  annual 
value  for  said  slopes  and  banks  as  may  be  fixed  by  two  persons 
mutually  chosen;  And  I  hereby  warrant  this  conveyance  at  all 
hands,  and  against  all  mortals,  as  law  will ;  and  declare  that  all 
feu,  teind,  and  other  parish  and  public  burdens  whatsoever,  affect- 
ing the  lands  hereby  conveyed,  up  to  the  term  of  Martinmas,  1833, 
have  been  paid  —  my  said  disponees  being  obliged  to  pay  whatever 
proportion  of  such  burdens  have  fallen  due  since,  or  may  hereafter 
fall  due,  and  be  held  as  applicable  to  said  lands ;  reserving  always 
to  me,  my  heirs  and  successors,  the  whole  powers  and  privileges  of 
access  to  or  crossing  said  railway  and  otherways,  conferred  by  said 
recited  Acts  on  the  landed  proprietors  whose  lands  are  intersected; 
also  always  reserving  to  me,  and  my  heirs  and  successors,  the 
whole  mines  and  minerals,  of  whatever  description,  within 
[*  639]  the  said  lands  hereby  conveyed,  *  and  full  power  and  lib- 
erty to  us,  or  any  persons  authorised  by  us,  to  search  for, 
win,  and  carry  away  the  same,  and  to  make  aqueducts,"  and  so  on. 
Subject  to  the  rights  thus  given  to  the  company,  the  respondent 
had,  and  retained,  a  right  to  work  the  minerals  under  and  adjoin- 
ing the  line,  subject  only,  as  to  the  minerals  under  the  line,  to  the 
obligation  of  giving  the  security  created  by  the  first  Act,  to  which 
I  have  referred. 

Starting,  then,  from  this  proposition,  the  next  question  is.  Have 
the  rights  of  each  party  been  affected  by  the  several  Acts  of  Par- 
liament relating  to  the  railway  ?  At  the  time  when  the  conveyance 
was  made  in  1834  three  Acts  had  passed,  viz.,  the  original  Act 
7  Geo.  IV.,  c.  103,  and  two  amending  Acts,  viz.,  7  &  8  Geo.  IV.,  c.  88, 
and  11  Geo.  IV.,  c.  125  ;  the  two  latter,  however,  do  not  affect  the 


R.  C.  VOL.  XVn.]      SECT.  IV. — RIGHTS   OF  SUPPORT.  699 

ITo.  21. — Caledonian  Bailway  Go.  ▼.  Spxot,  1  Fatenon  (Be.  App.),  689. 

present  question,  and  therefore  may  be  disregarded.  The  11th 
section  of  the  original  Act  is  that  which  relates  to  the  conveyance 
of  land  to  the  company,  the  reservations  of  mines,  and  the  restric- 
tions in  their  working.  It  is  this;  "And  be  it  further  enacted, 
that  all  and  every  body  or  bodies  politic,  corporate,  or  collegiate, 
trustees,  and  other  person  or  persons  hereinbefore  capacitated  to 
sell  or  convey  lands  or  other  heritages,  through,  in,  or  upon  which 
the  said  railway,  bridges,  roads  of  communication,  or  other  works, 
hereby  authorised,  shall  be  made,  may  accept  and  receive  satisfac- 
tion for  the  value  of  such  lands,  &c. ;  but  provided  always,  that 
notwithstanding  anything  herein  contained,  it  shall  be  lawful  and 
competent  to  any  proprietor  or  proprietors  whose  lands  are  hereby 
authorised  to  be  taken,  to  reserve  and  except  from  the  bargain  or 
sale  to  the  said  company,  the  whole  of  the  minerals  in  the  said 
lands,  for  and  to  his  or  her  own  proper  use  and  behoof ;  and  the 
said  company  shall  have  no  right  of  property  of  or  in  such  miner- 
als, which  any  proprietor  or  proprietors  may  desire  to  be  reserved 
as  aforesaid;  but  provided  always  further,  nevertheless,  that  it 
shall  on  no  account  be  lawful  to,  or  in  the  power  of,  any  such  pro- 
prietor to  work,  win,  or  away  take  any  of  the  said  minerals  with- 
out giving  previous  good  and  sufficient  security  to  the  said  company 
for  all  damages,  interruption  of  traffic,  and  other  injury,  which  may 
thence,  in  any  way,  result  to  the  said  undertaking  or  the  said 
company ;  and  in  the  event  of  the  said  company  and  any  such  pro- 
prietor not  agreeing  in  regard  to  the  extent  or  sufficiency  of  such 
security,  then  the  Judge  Ordinary  of  the  bounds  shall  regulate  and 
determine  thereupon  as  to  him  shall  appear  just." 

The  first  observation  which  occurs  on  this  section  is,  that 
though  under  its  provisions  and  other  clauses  in  the  Act  the 
respondent  might  have  been  compelled  to  sell  the  land  in  question 
to  the  company,  yet  when,  by  arrangement  between  him  and  the 
company,  it  was  settled  what  should  be  the  price  paid,  and  the 
conveyance  is  made  accordingly,  the  effect  of  the  transaction,  so  far 
as  relates  to  the  conveyance  of  the  land  and  the  rights  acquired 
under  it,  must  depend  on  the  terms  of  the  deed,  subject  only  to  the 
provision  in  the  clauses  regulating  or  restricting  the  right  of  work- 
ing the  mines.  By  virtue  of  the  conveyance  the  company  acquired 
by  grant  from  Mr.  Sprot  an  absolute  right  to  the  surface  of  the 
land ;  and,  by  implication,  a  further  right  to  such  subjacent  and 
adjacent  support  as  was  necessary,  taking  into  account  the  purpose 


700  MINES  AND  MINERALS. 

Ho.  21.  —  Caledoniaii  Bailway  Co.  t.  Sprat,  1  Patenon  (8c.  App.),  689,  040. 

to  which  the  land  was  to  be  put.  Mr.  Sprot,  on  the  other  hand, 
retained  his  former  right  of  working  the  mines,  subject  only  to  the 
rights  which  he  had  impliedly  granted  of  subjacent  and  adjacent 
support,  and  subject  also  to  the  statutory  restriction  in  the  11th 
clause,  preventing  him  from  working  the  mines  under  the  land 
conveyed  without  first  giving  to  the  company  good  and  sufficient 
security  for  all  damage  which  might  accrue  to  it  from  such  work- 
ings. Such,  certainly,  would  have  been  their  rights  if  no  further 
Act  of  Parliament  had  passed.  If,  while  these  original  Acts  and 
no  others  were  in  force,  Mr.  Sprot  had  proceeded  to  work  the 
mines,  he  might  have  been  restrained  from  any  working  of  the 
minerals,  whether  under  the  line  of  railway  or  under  adjoining 
lands,  which  should  interfere  with  the  due  support  of  the  line, 
because  by  so  working  he  would  be  acting  in  violation  of  his  own 
implied  grant  or  warranty  of  reasonable  subjacent  and  adjacent 
support ;  and,  further,  he  would  have  been  bound,  before  he  worked 
at  all  under  the  land  conveyed  to  the  railway,  to  give  the  security 
required  by  the  statute. 

Eeliance  was  placed  in  the  argument  on  the  89th  section.  It 
was  argued  that  the  inabih'ty  to  win  the  minerals  by  reason  of  the 
danger  which  would  be  thereby  occasioned  to  the  railway,  was  a 
damage  to  Mr.  Sprot  for  which  no  remedy  is  provided  by  the  Act, 
and  so  was  within  the  provisions  of  the  89th  section.  This  section 
is  this :  "  That  if  at  any  time  or  times  hereafter,  any  person  shall 
sustain  any  damage  in  his,  her,  or  their  lands,  tenements,  heritages, 
or  property,  by  reason  of  the  execution  of  any  of  the  powers  here- 
by given,  and  for  which  no  remedy  is  hereinbefore  provided,  then, 
and  in  every  such  case,  the  recompense  or  satisfaction  for  such 
damage  shall,  from  time  to  time,  be  settled  and  ascertained  in  such 
manner  as  hereinbefore  directed  in  respect  of  any  other  recompense 
or  satisfaction  hereinbefore  mentioned."  I  think  the  argument 
arising  out  of  that  section  is  untenable.  The  damage  complained 
of  is  a  damage  arising  solely  from  the  fact  that  the  respond- 
ent, by  his  conveyance  of  1834,  impliedly  bound  himself  to  secure 
to  the  company  adequate  subjacent  and  adjacent  support.  He 
incurred  that  obligation  by  the  mere  fact  of  the  conveyance.  He 
was  not  bound  to  convey  at  all,  till  he  had  taken  the  steps  pointed 
out  by  the  statute  for  having  it  ascertained  what  was  the  sum 
which  he  ought  to  receive  as  the  price  of  his  convey- 
[*640]  ance,  including  consequential  damage.     In  *  calculating 


B.  C.  VOL.  XVn.]        SECT.  IV.  —  RIGHTS  OF  SUPPORT.  701 

Ho.  21.  —  Caladonlan  Bdlway  Co.  t.  Sprot,  1  Patenon  (Be.  App.),  640. 

that  sum,  the  circumstance  that  he  was  to  convey  not  merely 
the  soil  of  the  line  upon  which  the  railway  was  to  be  fonned,  but 
also,  impliedly,  a  right  in  his  disponees  to  have  subjacent  and 
adjacent  support  for  the  land  disponed,  must  necessarily  have 
been  taken  into  account ;  and  when,  in  afterwards  proceeding  to 
work  the  mines,  he  finds  that  he  cannot  win  the  minerals,  because 
in  so  doing  he  would  be  interfering  with  the  necessary  support  of  the 
line  of  railway,  he  has  no  more  right  to  complain  than  he  would 
have  had,  if  he  had  found  that  to  work  the  mines  eflfectually  it 
would  be  necessary  to  sink  a  shaft  in  some  portion  of  the  line  of 
railway  that  is  on  the  land  actually  conveyed.  This  conveyance 
operates  to  deprive  him  of  his  rights  to  disturb  the  lateral  and 
interior  support,  in  the  same  way  as  it  prevents  him  from  interfer- 
ing with  the  surface  itself  of  the  land  conveyed.  The  89th  section, 
therefore,  is  inapplicable,  because  the  damage  of  which  the  respond- 
ent complains  is  a  damage  arising  not  by  reason  of  the  execution  by 
the  company  of  the  powers  given  to  them  by  the  Act,  but  by  reason 
of  his  having  by  the  conveyance  of  1834  impliedly  bound  himself 
to  secure  to  the  company  adequate  support  to  the  line  of  railway, 
or  rather,  negatively,  not  to  interfere  by  his  acts  with  such  support 
This  being  so,  the  only  further  question  is  as  to  the  efiPect  of 
the  subsequent  Acts  of  Parliament.  Do  they  or  do  they  not  alter 
the  rights  which,  if  no  such  Acts  had  passed,  the  company  would 
have  possessed  under  the  original  Act  ?  I  will  refer  to  the  several 
Acts  in  the  order  of  their  dates.  The  first  Act  which  passed  after 
the  conveyance  in  December,  1834,  was  that  of  1  &  2  Vict,  c.  60. 
This  Act  did  no  more  than  enable  the  company  to  raise  further 
sums  of  money,  and  make  some  amendments  in  the  details  of 
the  former  Acts.  It  in  no  respect  touched  the  question  as  to  the 
rights  of  the  respondent  and  of  the  company  in  respect  of  the 
mines.  The  next  Act  was  that  passed  in  1844,  viz.,  7  &  8  Vict, 
c.  87.  By  that  Act,  after  reciting  that  the  railway  authorised  by 
the  former  Acts  had  been  completed  and  opened  to  the  public, 
and  had  proved  of  great  public  and  local  advantage,  and  further 
reciting  that  its  utility  would  be  increased  if  the  company  were 
authorised  to  make  two  extensions  of  the  railway,  it  is  enacted 
that  the  former  Acts  shall  be  in  force  for  carrying  the  purpose 
of  that  Act  into  execution.  The  name  of  the  railway  is  then 
changed,  the  Act  providing  that  it  shall  thereafter  be  called  the 
Glasgow,  Gamkirk,  and  Coatbridge  Eailway,  this  new  name  having 


702  MINES  AND  MINERALS, 


Ho.  21.  —  Caledonian  Bailway  Co.  ▼.  Sprot,  1  Pateraon  (8c  App.),  040. 

been  adopted  with  reference  to  the  extension  of  the  line  then 
already  made  or  in  progress.  The  usual  powers  are  then  given 
for  enabling  the  company  to  purchase  lands,  and  exercise  the 
necessary  works  for  the  two  new  branch  lines;  and  among  the 
provisions  relative  to  the  mode  in  which  the  works  are  to  be 
executed  are  five  clauses,  having  for  their  object  the  regulating  of 
the  working  under  or  contiguous  to  the  lines.  Those  clauses  are 
numbered  84  to  88.  The  84th  section  says,  that  "  for  the  purpose 
of  protecting  the  railway  and  works  from  danger  to  be  apprehended 
from  the  working  of  any  mines  either  under  or  closely  adjoining 
the  railway,  be  it  enacted,  that  if  the  owner,  lessee,  or  occupier 
of  any  mines  or  minerals  lying  under  the  railway,  or  any  of  the 
works  connected  therewith,  or  within  forty  yards  therefrom,  be 
desirous  of  working  the  same,  such  owner,  lessee,  or  occupier 
shall  give  to  the  company  notice  in  writing  of  his  intention  so  to 
do  thirty  days  before  the  commencement  of  working;  and  upon 
the  receipt  of  such  notice  it  shall  be  lawful  for  the  company  to 
cause  such  mines  to  be  inspected  by  any  person  appointed  by 
them  for  the  purpose,  and  if  it  appear  to  the  company  that  the 
working  of  such  mines  or  minerals  is  likely  to  damage  the  works 
of  the  railway,  and  if  the  company  be  willing  to  make  compensa- 
tion for  such  mines  to  such  owner,  lessee,  or  occupier  thereof, 
then  he  shall  not  work  or  get  the  same ;  and  if  the  company  and 
such  owner  do  not  agree  as  to  the  amount  of  such  compensation, 
the  same  shall  be  settled  as  in  other  cases  of  disputed  compensa- 
tion." By  the  85th  clause  it  is  enacted,  that  if  the  company  be 
unwilling  to  purchase,  the  owner  may  work  the  mines.  Then,  by 
the  86th  section,  in  order  to  prevent  the  mines  being  worked  in 
such  a  way  as  to  damage  the  railway,  it  is  enacted  that  the  rail- 
way  company  may  enter  and  inspect  the  mines,  after  giving 
twenty-four  hours'  notice  in  writing ;  and  powers  are  given  to 
enable  them  to  make  proper  supports,  if  supports  are  wanted,  and 
to  make  mining  communications. 

The  object  of  these  clauses  may  be  stated  to  be,  first,  to  compel 
all  owners  of  mines  near  the  railway  to  give  notice  to  the  company 
before  they  begin  to  work  them,  and  to  enable  the  company,  if 
they  think  fit,  to  prevent  such  working  by  purchasing  the  mines 
from  the  owner,  or  rather  by  compensating  him  for  his  loss  in  not 
w^orking  them ;  and,  secondly,  to  compel  the  owner  of  the  mines, 
if  the  company  do  not  purchase,  to  work  them  so  as  not  to  damage 


E.  C.  VOL,  XVIL]       sect.  IV.  —  RIGHTS  OF  SUPPORT.  703 

Ho.  21.  —  Caladoniaii  Railway  Oo.  t.  Sprot,  1  Patenon  (Be.  App.),  640,  Ml. 

the  railway  by  improper  working ;  and  the  Act  then  gives  powers 
to  the  company  enabling  them  to  ascertain  that  no  improper 
workings  are  in  progress.  With  reference  to  these  enactments  it 
was  contended  on  the  part  of  the  appellants  that  they  did  not 
apply  to  the  original  railway,  but  only  to  the  new  extension  lines 
authorised  by  the  Act  in  which  the  clauses  are  found.  The  re- 
spondent, on  the  other  hand,  argued  that  the  enactments  are 
general,  and  applicable  to  the  whole  railway,  including  as  well 
the  original  as  the  branch  lines.  In  the  view  which  I  take  of  this 
case,  it  is  immaterial  which  of  these  constructions  is  correct,  for, 
assuming  the  respondent  to  be  right,  and  that  these  clauses  apply 
to  the  whole  line,  and  so  to  the  mines  of  the  respondent  under 
and  contiguous  to  the  railway,  still  they  cannot  interfere  with  the 
pre-existing  rights  of  the  company,  which  they  had  acquired  ten 
years  before  this  last  Act  became  law.  Under  the  deed 
of  1834  the  *  company  had  acquired  by  purchase  a  right,  [*  641] 
as  against  the  appellant,  to  have  adjacent  and  subjacent 
support  to  their  railway.  The  effect  of  the  mining  clauses  in  the 
Act  of  1844  was  not  to  deprive  the  company  of  the  right  they 
had  thus  purchased,  but  to  prevent  the  respondent  from  working 
his  mines  without  first  giving  the  option  of  stopping  the  work- 
ings by  compensating  the  respondent,  when  they  refuse  to  exercise 
that  option.  The  respondent  has  the  same  right  of  working  his 
mines  which  he  had  before,  that  is,  a  right  to  work  them,  not 
interfering  with  the  support  of  the  railway.  It  is  true  the  85th 
section  enacts,  that  if  the  company  do  not  exercise  the  option 
given  by  the  Act,  the  mine  owner  may  work  his  mines  in  the 
manner  proper  and  necessary  to  the  beneficial  working  thereof; 
but  all  this  must  have  reference  to  the  existing  rights  of  the  mine 
owner  and  of  the  company.  The  Legislature  certainly  did  not 
intend  to  give  to  the  mine  owner,  as  against  the  company,  rights 
which  he  had  previously  sold  to  them ;  and  when  the  Act  of  1844 
passed,  the  respondent  had  no  right  to  work  his  mine  in  any  way 
which  would  interfere  with  the  security  of  the  railway.  So  also 
as  to  the  clause  in  sect.  11  of  the  original  Act,  whereby  the  owner 
of  the  reserved  mines  under  the  land  conveyed  is  restrained  from 
working  at  all  until  he  has  given  security  to  the  company.  I  see 
nothing  in  the  Act  of  1844  to  prejudice  that  right.  The  mining 
clauses  in  that  Act  must  all  be  read  with  reference  to  the  rights  of 
the  mine  owner  as  they  existed  when  the  Act  passed. 


704  MINES   AKD  MINERAX3. 


Ho.  81.  — CMfldoniaw  Bdlway  Oo.  t.  iprot,  1  Patenon  (So.  App.),  641. 

The  only  other  Act  affecting  the  railway  which  passed  pre- 
viously to  the  General  Eailway  Clauses  Consolidation  Act  was  a 
short  Act*  which  received  the  royal  assent  on  30th  June,  1845,  the 
8  &  9  Vict.,  c.  31,  whereby  the  company  was  empowered  to  alter 
the  gauge  of  the  railway,  but  it  did  not  afifect  the  question  of 
mines. 

Three  weeks  after  the  passing  of  that  Act,  that  is,  on  the  2l8t 
July,  1845,  the  General  Scotch  Eailway  Consolidation  Act,  8  &  9 
Vict.,  c.  83,  received  the  royal  assent.  The  provisions  of  that  Act 
relative  to  the  working  of  mines  are  nearly  the  same  with  those 
contained  in  the  local  Act  of  1844,  to  which  I  have  already 
adverted.  It  is  immaterial  to  consider  them  in  detai}.  In  fact, 
they  were  inapplicable  to  the  rights  of  the  parties  under  prior 
Acts,  the  general  Act  being  expressly  confined  to  Acts  to  be 
afterwards  passed.  Ten  days  after  the  passing  of  the  General 
Scotch  Act,  that  is,  on  the  31st  July,  1845,  the  Caledonian  Eail- 
way Company  obtained  their  Act,  the  8  &  9  Vict.,  c.  162.  The 
general  Act  was  incorporated  in  the  Caledonian  Act,  and  would 
therefore  regulate  the  mode  in  which  mines  under  or  contiguous 
to  that  line  of  railway  should  be  dealt  with.  I 

The  only  other  Act  affecting  the  question  now  under  discussion  : 

is  the  Act  of  1846,  under  which  the  Glasgow,  Gamkirk,  and  Coat-  I 

bridge  Eailway  was  sold  to  and  became  incorporated  with  the 
Caledonian  Eailway.  By  that  Act,  the  9  &  10  Vict,  c  329,  it 
was  enacted,  that  the  Glasgow,  Gamkirk,  and  Coatbridge  Eailway, 
with  all  its  lands,  powers,  and  privileges,  with  the  benefit  of  all 
contracts  relating  thereto,  should,  on  the  execution  of  a  deed  of 
conveyance  under  the  seal  of  the  said  company,  which  said  con- 
veyance has  since  been  duly  executed,  be  vested  in  and  belong  to 
the  Caledonian  Company  for  their  absolute  benefit.  The  effect  of 
this  was  merely  to  put  the  Caledonian  Company  in  the  place  of 
the  former  company,  whose  interest  they  purchased,  so  that  what- 
ever had  been  the  right  of  the  Glasgow,  Gamkirk,  and  Coatbridge 
Co.,  in  relation  to  the  respondent  became,  after  the  passing  of  this 
latter  Act,  the  right  of  the  Caledonian  Company, 

It  appears,  therefore,  from  an  examination  of  all  these  Acts,  that 
the  rights  acquired  by  the  original  company,  by  virtue  of  the 
conveyance  of  12th  December,  1834,  remained  unaffected  up  to  the 
time  of  their  final  transfer  to  the  Caledonian  Company ;  and  as 
the  respondent  rests  his  claim  to  relief  on  the  ground  that  he  is 


B.  C.  VOL.  XVn.]       SECT.  IV.  —  EIGHTS  OF  SUPPORT.  705 

Ho.  21.  —  Catodonian  Baflway  Co.  v.  Sprot,  1  Patenon  (8e.  App.),  6il,  640. 

entitled  by  virtue  of  the  reservation  of  mines  contained  in  his  con- 
veyance of  1834,  to  work  those  mines  adjoining  the  railway  without 
regard  to  the  question,  whether,  by  so  doing,  he  will  be  damaging 
the  necessary  support  of  the  railway,  and  that  the  company  can 
only  prevent  his  doing  so  by  purchasing  the  mines,  I  have  only  to 
add,  having  already  explained  the  grounds  on  which  I  conceive  this 
view  to  be  incorrect,  that  I  think  the  Lord  Ordinary  was  right, 
when  he  sustained  the  defences  and  assoilzied  the  defenders.  I  am 
aware  that  I  adopt  the  view  of  the  Lord  Ordinary  in  opposition  to 
the  opinion  of  the  First  Division  of  the  Court  of  Session,  who  con- 
curred in  reversing  his  decision.  Those  able  Judges  seem  to  me 
to  have  overlooked,  or  not  to  have  given  due  weight  to,  the  effect 
of  the  conveyance  of  1834.  If  I  am  right  in  saying  that  by  that 
conveyance  the  respondent  conveyed  to  the  company  not  only  the 
land  to  be  covered  by  the  railway,  but  also,  by  implication,  the  right 
to  all  necessary  support,  then  he  cannot,  by  reason  of  his  having 
reserved  the  mines,  derogate  from  his  own  conveyance  by  removing 
that  support.  In  reserving  mines,  he  must  be  understood  to  have 
reserved  them  so  far  only  as  he  could  work  them  consistently 
with  the  grant  he  had  made  to  the  company.  The  Judges  of  the 
Court  below  have  overlooked  this  principle,  and  in  so  doing  have 
been  led  into  an  erroneous  conclusion. 

The  subject  of  the  right  of  the  owners  of  the  surface  to  adequate 
subjacent  and  adjacent  support  has  on  several  occasions  been  dis- 
cussed in  the  English  Courts.  The  principles  which  there  gov- 
erned the  decisions  were  not  derived  from  any  peculiarities  of  the 
English  law,  but  rested  on  grounds  common  to  the  Scotch,  and 
as  I  believe,  to  every  other  system  of  jurisprudence.  They  were 
considered  in  the  case  of  Harris  v.  JRyding,  5  M.  &  W.  60, 
and  very  fully  *  developed  in  the  judgment  of  the  Court  of  [*  642] 
Queen's  Bench,  delivered  by  Lord  Campbell  in  the  case  of 
Humphries  v.  Brogden,  12  Q.  B.  739  (p.  407,  ante). 

It  may  be  proper  that  I  should  notice  an  argument  relied  on  to 
some  extent,  namely,  that  the  railway  originally  contemplated  was 
not  one  on  which  the  traffic  would  be  equal  to  that  which  now 
exists,  so  that  the  support  contemplated  could  not  have  been  so 
great  as  that  which  is  now  required.  To  that,  I  think,  there  are 
two  answers :  First,  when  the  respondent  granted  his  land  for 
the  avowed  purpose  of  enabling  the  disponees  to  make  a  railway, 
without  any  limitation  as  to  its  nature,  I  think  he  must  be  under- 
voL.  xvu.  —  45 


706  MINES  AND  MINERALS. 

Ho.  82.  —  Great  Weitem  Bdlway  Ck>.  v.  BoniMtt,  L.  li.  8  H.  L.  27,  28. 

stood  to  have  warranted  proper  support,  however  the  railway  might 
be  used,  or  to  whatever  purpose  it  might  be  applied ;  and,  secondly, 
the  gentlemen  to  whom  the  Court  of  Session  referred  this  very 
question,  expressly  say  that  neither  increased  traffic,  nor  the  alter- 
ation of  the  structure  or  uses  of  the  railway,  have  materiaUy  affected 
the  practicability  of  working  the  minerals. 

Although  this  judgment  and  the  reasons  I  have  given  for  it  are 
my  own,  they  are  to  be  considered  likewise  as  those  of  my  noble 
and  learned  friend  Lord  Brougham,  to  whom  I  communicated  the 
judgment,  and  who  has  authorised  me  to  express  his  entire  con- 
currence with  it. 

Interlocutor  of  the  First  Division  of  the  Cowrt  of  Session 
reversed  —  Reclaiming  Note  against  the  interlocutor  of 
the  Lord  Ordinary  refused,  with  expenses — Tnterlocvior 
of  the  Lord  Ordinary  affirmed,  and  cause  remitted. 


Oreat  Western  Bailway  Co.  v.  Bennett. 

L.  B.  2  H.  L.  27-42  (8.  0.  36  L.  J.  Q.  B.  133 ;  16  L.  T.  1S6 ;  15  W.  R.  647). 

[27]    BaQvoays  Clauses  Act,— -Mines*  —  Subjacent  and  Acyacent  Support 

By  tbe  effect  of  the  77tby  78th,  and  79th  sections  of  the  Railways  Ckoaes 
Consolidation  Act,  1845,  a  railway  company  on  parchasing,  under  that  statute, 
land  for  the  purposes  of  the  railway  does  not  become  entitled  to  the  mines 
under  the  land ;  tbe  owner  may  work  them  after  notice  duly  given ;  and  if, 
after  such  notice,  the  company,  though  desiring  to  prevent  the  working,  does 
not  give  compensation  for  the  minerals,  the  owner  may  work  them  up  to  and 
under  the  railway,  working  them  in  a  '^  proper  manner"  and  '' according  to  the 

usual  manner  of  working  such  mines  in  the  district*'  The  company  cannot, 
[•28]  under  this  statutory  purchase,  claim  the  benefit  of  tbe  right  of  an  *  ordinary 

purchaser  of  the  surface  to  subjacent  and  adjacent  support,  tbe  statute  hav- 
ing created  a  specific  law  for  such  matters,  by  which  alone  the  rights  of  the 
company  and  the  mine  owner  are  regulated. 

This  was  a  proceeding  on  error  on  a  judgment  in  the  Court 
of  Queen's  Bench,  which  had  been  afl&rmed  by  the  Exchequer 
Chamber. 

The  Shrewsbury  and  Birmingham  Eailway  Company,  under  the 
powers  of  the  Shrewsbury  and  Birmingham  Eailway  Act,  1846, 
had  acquired  in  fee  simple  certain  lands  lying  in  Wombridge,  in 
the  county  of  Salop,  for  the  purpose  of  constructing  the  railway. 
That  Act  incorporated  the  Lands  Clauses  Consolidation  Act,  1845, 


B.  C.  VOL.  XVII.]       SECT.  IV.  —  RIGHTS  OF  SUPPORT.  707 

Ho.  82.  — Great  Wertsm  Bdlway  Co.  v.  Bomiott,  L.  B.  8  H.  L.  88,  88. 

and  the  Bail  ways  Clauses  Consolidation  Act,  1845.  These  lands, 
and  the  Birmingham  and  Shrewsbury  Bailway  itself,  afterwards 
came,  under  the  17  &  18  Vict.,  c.  ccxxii.,  to  be  vested  in  the  plain- 
tiffs in  error,  who  constituted  the  Great  Western  Bailway  Company. 

The  original  conveyance,  dated  the  11th  of  September,  1849,  was 
made  by  the  then  owners  of  the  lands,  who  were  also  owners  of 
the  mines  and  minerals  lying  under  the  same,  and  conveyed  to  the 
Shrewsbury  Company  for  the  purposes  of  the  railway,  in  the  form 
given  in  the  schedule  to  the  Lanjds  Clauses  Consolidation  Act,  1845, 
the  lands,  "excepting  and  always  reserved,  &c.,  the  mines  and 
minerab  in  and  under  the  said  hereditaments  and  premises,  with 
all  the  necessary  powers  and  privileges  for  getting  and  work- 
ing the  same."  The  railway  and  works  were  then  constructed 
on  the  lands,  partly  on  the  surface,  and  partly  in  a  tunnel.  In  the 
year  1856,  Bennett,  the  defendant  in  error,  purchased  the  reserved 
mines  and  minerals.  On  the  9th  of  June,  1856,  he  gave  to  the 
plaintiffs  in  error,  under  the  78th  section  of  the  Bailways  Clauses 
Consolidation  Act,  1845,  notice  of  his  intention,  within  thirty  days 
after  the  date  of  the  notice,  to  work  the  mines  and  minerals  lying  un- 
der the  railway  and  tunnel,  and  within  forty  yards  therefrom,  unless 
they  stated  their  willingness  to  treat  for  compensation.  On  the  9th 
of  July,  1856,  the  plaintiffs  in  error  gave  Bennett  notice  of 
their  willingness  so  to  treat  with  respect  to  *  the  mines  and  [*  29] 
minerals  lying  under  so  much  of  the  lands  as  were  coloured 
pink  in  a  plan  annexed.  These  lands  lay  under  two  ends  of  the  line 
of  railway  and  a  tunnel  connecting  them,  and  on  both  sides  of  the 
same. 

On  the  1st  of  December,  1857,  Bennett  gave  to  the  plaintiffs  in 
error  notice  that  he  was  also  the  owner  of  other  mines  and 
minerals  which  lay  under  another  portion  of  the  lands  (coloured 
blue  in  the  plan),  and  situate  just  outside  the  line  of  the  other 
lands,  which  he  would,  by  severance,  be  prevented  from  working, 
and  for  which  he  also  required  compensation ;  and  that  he  was 
desirous  that  the  amount  of  his  claim,  if  not  agreed  to,  should  be 
settled  by  arbitration  in  the  manner  provided  in  the  Bailways 
Clauses  Consolidation  Act,  1845.  This  claim  did  come  under 
arbitration,  and  on  the  28th  of  October,  1858,  an  award  was  made 
containing  the  following  special  finding :  "  Supposing  that  the  said 
John  Bennett  had  not  been  interrupted  and  prevented  from  work- 
ing and  getting  the  said  mines  and  minerals,  and  had  the  right  to 


708  MINES   AND  mNERALS. 

Ho.  82.  —  Great  Weitem  Bailway  Co.  t.  Bonnott,  L.  B.  8  H.  L.  88,  80. 

work  and  get  the  whole  as  against  the  company  as  owners  of  the 
surface,  then  I  find  the  whole  of  the  said  mines  and  minerals,  for 
which  compensation  is  hereby  awarded,  could  properly  have  been 
worked  and  gotten  in  the  manner  proper  and  necessary  for  the 
beneficial  working  of  the  same,  and  according  to  the  usual  manner 
of  working  such  mines  and  minerab  in  the  district  within  which 
the  same  are  situated.  But  I  also  find  that  no  greater  portion  than 
one-third  of  the  said  mines  and  minerals  could  properly,  and  in 
such  manner  as  aforesaid,  have  been  so  worked  and  gotten,  if  in 
working  and  getting  the  same  a  sufficient  portion  of  the  said  mines 
and  minerals  was  to  be  left  to  give  reasonable  support  to  the  said 
surface  land,  and  to  prevent  any  damage  by  the  sinking  thereof ; 
and  I  also  find  that  the  same  amount  of  support  would  have  been 
necessary  for  the  surface  land  if  the  said  railway  and  timnel  had 
not  existed."  The  award  further  declared  that,  in  respect  of  the 
minerals  lying  under  the  land  coloured  pink,  the  plaintiffs  in  error 
were  to  pay  to  Bennett,  if  he  would  have  been  entitled  to  work  out 
the  whole  of  them,  the  sum  of  £8649  lO*.,  but  that  if  he  would 
have  been  bound  to  leave  reasonable  support  to  the  surface,  the 
sum  of  £1085  3^.  8d, ;  that  Bennett  was  entitled  to  compensation 

for  the  additional  loss  and  damage  which  he  had  incurred 
[*  30]   in  respect  of  the  other  portion  of  *  the  mines  and  minerals 

which  could  not  be  worked  by  reason  of  severance ;  and  that 
the  further  amount  to  which  Bennett  was  entitled,  if  he  would  have 
been  entitled  to  work  out  the  whole  of  the  said  last-mentioned 
portions  of  mines  and  minerals,  was  £1042  Is.  2d.;  but  that  if 
Bennett  was  bound  to  leave  reasonable  support,  then  the  amount 
of  compensation  in  respect  of  the  last-mentioned  mines  and  min- 
erals was  £140  16«.  Id, 

An  action  was  brought  on  this  award.  A  special  case  was 
stated  by  consent,  and  in  Michaelmas  Term,  1862,  the  Court  of 
Queen's  Bench  gave  judgment  in  favour  of  Bennett  for  the  two 
larger  amounts.  This  judgment  was  given  on  the  authority  of 
Fletcher  v.  Great   Western  Railway  Company.^     In  Easter  Term, 

1  4  H.&N.  242  (affirmed  5  H.&N.  689).  dation  Act,  1845,   Schedule  A,  and  not 

The  following  is  the  marginal  note  of  that  heing  wiUiDg  to  purchase  the  minerals 

case :    "  A  railway  company  haying,  hy  after  notice  of  the  owner's  intention  to 

agreement  with  the  owner,  purchased  land  work  them,  pursuant  to  sect.  78  of  the 

for  the  purpose  of  making  the  railway,  Railways  Clauses  Consolidation  Act,  1845, 

and  having  taken  a  conveyance  in  the  is  not  entitled  to  the  adjacent  or  subjacent 

form  given  by  the  Lands  Clauses  Consoli-  support  of  the  minerals ;  but  the  owner  is 


R.  a  VOL.  xvn.]     sect.  iv. — eights  of  support. 


709 


Ho.82.  — OnatWMtern  Bailway  Co.  T.  Bennett,  L.B.  2  H.  L.  80,81. 

1863,  the  judgment  was  afltened  in  the  Exchequer  Chamber.    The 
case  was  then  brought  up  to  this  House. 
Mr.  Manisty,  Q.  C,  and  Mr.  Field  Q.  C,  for  the  appellants:  — 
The  question  raised  is,  whether,  having  regard  to  the  77th  and 
two  following  sections   of    the    Sailways  Clauses  Consolidation 
Act,  1845,^  and  to  the  deed  by  which  the  surface  land  was 
conveyed  *  to  the  appellants,  the   defendant  in  error  may  [*  31] 
work  the  mines  and  take  the  coal,  leaving  no  support  to 
the  surface ;  or  whether,  if  they  had  not  availed  themselves  of  the 
powers  in  the  general  Act,  he  could  have  removed  all  the  coals 
under  the  railway  and  for  forty  yards  on  each  side  of  it,  leaving  no 
support  whatever ;  and,  finally,  whether  he  was  not  bound,  at  all 
events,  to  leave  support  to  the  surface.     In  substance,  the  point  to 
be  determined  is  raised  by  the  award,  and  is,  what  is  the  effect  or 


entitled  to  get  them,  notwithstanding  that 
the  getting  of  such  minerals  would  cause 
the  surface  to  subside.  Htld^  accordingly, 
that  where,  under  such  circumstances,  the 
company  had  given  notice  that  the  work- 
ing of  the  mines  was  likely  to  damage  the 
works  of  the  company,  the  owner  of  the 
minerals  was  entitled  to  recover  compen- 
sation which  had  been  assessed  under  the 
said  78th  section." 

1  8  &  9  Vict.,  c  20  (Railways  Clauses 
Consolidation  Act,  1845). 

Sect.  77.  *'  The  company  shaU  not  be 
entitled  to  any  mines  of  coal,  &c.,  under 
any  land  purchased,  except  only  such 
parts  thereof  as  shall  be  necessary  to  be 
dug,  or  carried  away,  or  used  in  the  con- 
struction of  the  works,  unless  the  same 
shall  have  been  expressly  purchased ;  and 
all  such  mines,  excepting  as  aforesaid, 
shall  be  deemed  to  be  excepted  out  of  the 
conveyance  of  such  lands,  unless  they  shall 
have  been  expressly  named  therein  and 
conveyed  thereby." 

Sect.  78.  '*If  the  owner,  &c.,  of  any 
mines  or  minerals  lying  under  the  rail- 
way, or  any  of  the  works  connected  there- 
with, or  within  the  prescribed  distances,  or, 
when  no  distance  shall  be  prescribed,  forty 
yards  therefrom,  be  desirous  of  working 
the  same,  he  shall  give  to  the  company  a 
notice  in  writing  of  his  intention  so  to  do 
thirty  days  before  the  commencement  of 
working,  and  upon  the  receipt  of  such 
notice  it  shaU  be  lawful  for  the  company 


to  cause  such  mines  to  be  inspected  by  any 
person  appointed  by  them  for  the  purpose ; 
and  if  it  appear  to  the  company  that  the 
working  of  such  mines  or  minerals  is 
likely  to  damage  the  works  of  the  railway, 
and  if  the  company  be  willing  to  make 
compensation  for  such  mines,  or  any  part 
thereof,  to  such  owner,  &c.,  then  he  shaU 
not  work  or  get  the  same ;  and  if  the  com- 
pany and  such  owner,  &c.,  do  not  agree  as 
to  the  amount  of  such  compensation,  the 
same  shall  be  settled  as  in  other  cases  of 
disputed  compensation." 

Sect.  79.  "If  before  the  expiration  of 
such  thirty  days  the  company  do  not  state 
their  willingness  to  treat  with  such  owner, 
&c,  for  the  payment  of  such  compensa- 
tion, it  shaU  he  lawful  for  him  to  work  the 
said  mines,  or  any  part  thereof  for  which 
the  company  shall  not  have  agreed  to  pay 
compensation,  so  that  the  same  be  done  in 
a  manner  proper  and  necessary  for  the 
beneficial  working  thereof,  and  according 
to  the  usual  manner  of  working  such 
mines  in  the  district  where  the  same  shaU 
be  situate ;  and  if  any  damage  or  obstruc- 
tion be  occasioned  to  the  railway  or  works 
by  improper  working  of  such  mines,  the 
same  shall  be  forthwith  repaired  or  re- 
moved, as  the  case  may  require,  and  such 
damage  made  good  by  the  owner,  &c.,  at 
his  own  expense,"  and  if  that  is  not 
forthwith  done  by  the  owner  the  com- 
pany may  do  it,  and  recover  the  amount 
by  action. 


710  MINES  AND  MINERALS. 

Ho.  28.  —  Great  Weitem  BaiXway  Co.  v.  Bennett,  L.  B.  2  H.  L.  81,  82. 

the  consequence  of  a  company  availing  itself  of  the  statutes,  and 
making  a  purchase  of  lands  under  their  provisions  ? 

Bennett  can  only  claim  to  be  paid  for  so  much  of  the  coal  as  he 
might  take  away  without  diminishing  the  reasonable  support  of  the 
surface.  To  that  the  appellants  are  entitled  as  purchasers  of  the 
surface.  They  would  be  so  entitled  as  purchasers  in  the  ordinary 
way;  they  are  even  more  entitled  under  the  provisions  of  the 
railway  Acts.  He  has,  in  the  price  of  the  land,  got  compensation 
for  the  surface,  and  having  sold  the  surface,  he  is  bound  by  law 
not  to  work  his  mines  so  as  to  withdraw  from  the  surface  sufficient 

reasonable  support. 
[*  32]  *  If  the  case  had  stood  on  the  deed  alone,  he  would  have 
been  in  the  condition  of  an  ordinary  owner  of  mines  lying 
under  the  land,  having  reserved  a  power  of  working  them.  That 
power  would  have  been  a  power  reasonably  to  work  with  reference 
to  the  safety  of  the  surface. 

As  there  might  be  more  danger  where  a  railway  ran  over  the 
surface  than  in  an  ordinary  case,  the  Legislature  interfered  to  com- 
pel an  owner  of  the  mines  to  give  to  the  railway  directors  notice 
of  his  intention  to  work,  either  under  the  railway  itself,  or  within 
forty  yards  of  it ;  and  if  the  company  prevented  his  working,  the 
company  was  to  pay  him  compensation  for  that  coal  which,  but  for 
the  notice,  he  might  have  taken  away.  But  he  is  not  entitled  to 
be  paid  for  coal  which,  even  without  any  notice,  he  could  not  have 
taken  away,  because  its  removal  would  have  been  the  removal  of 
reasonable  support  to  the  surface. 

The  Caledonian  Railway  v.  Sprot  (p.  686,  ante)  laid  down  that  doc- 
trine in  the  case  of  a  private  conveyance,  and  is,  therefore,  directly 
applicable  here.  [Lord  Westbury.  —  The  conveyance  under  the 
statute  excepts  the  mines  and  minerals;  does  that  mean  all  the 
mines  and  minerals,  or  only  so  much  of  them  as  can  be  got  with 
due  regard  to  the  safety  or  advantage  of  the  railway  company  ?  ] 
It  has  the  latter  meaning,  as  is  shown  by  the  case  of  Elliot  v.  The 
North  Eastern  RaUway  Company,  10  H.  L.  C.  333,  which  decided 
that  a  conveyance  granting  land  for  a  special  purpose,  must  be 
construed  as  conveying  all  the  rights  necessarily  incident  to  the 
due  execution  of  that  purpose.  In  the  former  of  these  cases,  there 
was  a  private  Act  (7  Geo.  IV.,  c.  ciii.),  by  which  a  company  had  the 
right  to  take  lands  compulsorily ;  they  were  taken,  but  leave  was 
reserved  to  work  the  mines ;  but  the  Act  prohibited  the  proprietor 


E.  0.  VOL.  XVn.]        SECT.  IV.  —  RIGHTS  OF  SUPPOET.  711 

Ho.  22.  —  Onat  Weetexn  Bdlway  Go.  ▼.  Bennett,  L.  B.  2  H.  L.  82,  88. 

who  sold  the  surface  from  working  the  mines  to  the  disadvantage 
of  the  company.  [The  Lord  Chancellor.  —  In  that  case,  the  con- 
veyance was  dated  ten  years  before  the  Scotch  Eailways  Act,  1845 
(8  &  9  Vict,  c.  19),  passed,  and  Lord  Chancellor  Cran worth  thought 
that  that  Act  did  not  apply.]  But  he  recognised  on  any  sale  or 
grant,  however  made,  the  right  of  the  purchaser  of  the  surface  to 
subjacent  and  adjacent  support,  and  the  positive  obligation 
to  leave  it,  even  though  there  was  an  absolute  *  reservation  [*  33] 
of  mines  and  minerals.  In  JSlliot  v.  The  North  Eastern 
Railway  Company,  10  H.  L,  C.  333,  Lord  Chelmsford  remarked, 
that  a  company  must  pay  for  extraordinary  support,  which  itself 
showed  that  he  thought,  as  Lord  Cranworth  had  said,  in  the 
Caledonian  Railway  v.  Sprot,  that  the  company,  on  an  ordinary 
purchase  of  land,  would  be  entitled  to  ordinary  support ;  and  he 
ako  declared  that  whether  a  sale  was  voluntary  or  compulsory 
made  no  difference,  for  every  grant  carried  with  it  the  ordinary 
incidents  of  a  grant,  and  he  applied  those  incidents  in  that  case, 
though  he  considered  the  sale  to  have  been  made  under  the  com- 
pulsory powers  of  the  Act  of  Parliament.  There  is  nothing  in  this 
case  which  excludes  the  operation  of  this  ordinary  rule.  It  is 
perfectly  clear  that  the  purchaser  of  land,  without  anything  to  ex- 
clude the  operation  of  the  common  law,  would  be  entitled  to  reason- 
able support  of  the  surface :  Harris  v.  Ryding,  5  M.  &  W.  60 ;  though 
there  the  reservation  of  the  mines,  and  of  the  right  and  means  to 
work  them,  was  in  very  general  and  extensive  terms.  Smart  v. 
Morton,  5  E.  &  B.  30,  Roberts  v.  Haines,  6  E.  &  B.  643,  7  E.  &  B. 
625,  Humphries  v.  Brogden,  12  Q.  B.  739  (p.  407,  ante),  show  that  the 
language  of  deeds  before  the  Act  was  at  least  as  strong  in  favour  of 
the  owner  of  the  mines,  as  the  language  of  the  sections  in  the 
statute,  and,  consequently,  that  the  sections  could  not  be  construed 
as  affecting,  certainly  not  as  diminishing,  the  common-law  right  to 
support  on  the  surface.  And  Backhouse  v.  Bonomi,  9  H.  L.  C.  503, 
establishes  that  it  is  the  duty  of  a  mine  owner,  even  where  he  has 
the  clearest  right  to  work  the  mine,  to  leave  sufficient  support  to 
the  surface.  In  that  way,  those  cases  may  fairly  be  taken  as 
interpreters  of  the  statute. 

But  there  certainly  was  a  difference  with  respect  to  one  matter, 
and  that  difference  is  in  favour  of  the  appellants.  The  common 
law  required  that  reasonable  support  should  be  afforded,  but  there 
was  no  precise  limit  fixed  within  which  that  support  must  be  given. 


712  MINES  AND  MINERALS, 


Ho.  82.  — Great  Weitem  Bailway  Co.  ▼.  B«ii]iott»  L.  B.  2  H.  L.  88,  34. 

Now  railway  works  might  require  more  support  than  works  of  an 
ordinary  kind,  and  so  the  78th  section  gave  a  distance  of  forty 
yards  within  which  mines  must  not  be  worked,  except  after  certain 
notices  had  been  given.  But,  though  that  section  gave  a  com* 
[*  34]  pamy  the  power  to  treat  for  the  purchase  of  the  right  *  to 
work  the  mines,  there  was  no  power  in  a  company  to 
compel  the  sale  of  that  right  Yet  it  never  could  have  been  the 
intention  of  the  Legislature  to  expose  railways  to  greater  danger 
than  houses  built  in  the  ordinary  way  on  the  surface  of  land  cover- 
ing mines.  The  section  must,  therefore,  be  construed  with  refer- 
ence to  the  cases  previously  decided  upon  common-law  rights,  and 
then  it  is  obvious  that  that  which  the  common  law  gave,  the 
statute  had  not  taken  away. 

Mr.  Mellis,  Q.  C,  and  Mr.  Hannen  (Mr.  Crompton  was  with 
them),  for  the  respondent: — 

The  real  question  here  is  the  construction  of  the  three  sections 
of  the  Railways  Clauses  Act.  The  effect  attributed  to  an  ordinary 
conveyance  of  the  surface  may  be  admitted,  and,  according  to  the 
case  of  The  Caledonian  Railway  v.  Sprot  (p.  686,  ante),  that  may 
apply  in  the  case  of  a  conveyance  to  a  railway  as  much  as  to  any 
other.  But  the  Courts  have  distinguished  between  the  two  classes 
of  cases,  and  have  held  that  the  effect  of  the  Railways  Clauses  Act 
is  to  postpone  the  compensation  to  the  mine  owner  till  he  comes 
within  a  certain  distance  of  the  railway.  The  object  was  fair  to 
both  parties.  The  owner  was  not  to  lose  his  property  if  there 
were  mines ;  the  railway  company  was  not  to  pay  for  them  if  they 
were  not  found  to  exist,  or  if  they  were  not  worked  or  about  to  be 
worked.  Here  they  did  exist,  and  were  intended  to  be  worked. 
A  large  quantity  of  coal  was  required  for  the  support  of  the 
railway  works.  It  cannot  be  contended  that  the  mere  sale  of 
the  surface  bound  the  mine  owner  to  make  such  a  sacrifice  of 
the  coal  lying  under  it,  without  proper  compensation.  A  part 
might  be  got  here  without  injury ;  the  mine  owner  was  entitled  to  get 
that  part,  or  if  prevented  from  getting  it,  must  be  compensated  for  it 
He  was  also  entitled  to  get  that  part,  the  getting  of  which  might, 
without  improper  working,  be  considered  injurious  to  the  works  of 
the  railway.  This  latter  was  to  be  subject  of  notice  and  compen- 
sation. In  The  Caledonian  Railway  Company  v.  Sprot,  the  whole 
of  the  compensation  was  really  paid  at  the  time  of  making  the 
purchase;    it  was   not  so   here.     There  is  no  pretence  for  say- 


B.  C.  70L.  XVII.]       SECT.  IV.  —  RIGHTS  OF  SUPPORT.  713 

ir<K  23.  —Great  Weftem  Bailway  Co.  ▼.  Bennett,  L.  B.  2  H.  L.  86,  86. 

ing  that  so  much  of  the  minerals  as  are   under   or   near 
the  *  railway  were  purchased  at  the  time  the  surface  was  [*  35] 
purchased;  yet  such   is,  in   effect,  the  argument  on  the 
other  side.     That  is  contrary  to  common  sense,  and  to  the  inter- 
pretation put  by  the  Courts  on  the  sections  of  the  statute. 

What  was  the  rule  regulating  the  right  to  get  the  minerals 
before  this  Eailways  Clauses  Act  was  passed?  In  The  Dudley 
Canal  Company  v.  Grazebrook,  1  B.  &  Ad.  59  (35  R  R  212),  there 
was  a  special  proviso  that  in  working  the  mine  no  injury  was  to 
be  done  to  the  navigation.  Those  words  were  stronger  than  any 
to  be  found  in  these  Acts,  but  the  Court  said  that  they  meant  no 
unnecessary,  no  extraordinary  damage.  [The  Lord  Chancellor. 
—  But  the  appellants  say  that  they  have  got  the  right  to  reason- 
able support,  that  by  law  they  are  entitled  to  it,  and  that  the 
respondent  has  no  right  to  take  it  away.]  But  the  answer  to  that 
general  allegation  is  the  other  general  allegation,  that  the  owner 
is  always  entitled  to  work  his  mines  in  the  ordinary  and  usual 
mode;  and  that  is  all  that  is  proposed  to  be  done  here.  The 
practical  result  of  overruling  those  decisions,  which  have  estab- 
lished his  general  right,  would  be  to  give  to  railway  companies 
the  means,  by  a  mere  purchase  of  the  surface,  to  possess  them- 
selves of  the  most  valuable  minerals  without  paying  for  them  at  all. 

The  provisions  of  the  statute  which  require  notice  to  the  com- 
pany of  the  intention  to  work  the  mine,  and  which  give  the 
company  the  right  to  inspect  the  working,  so  as  to  see  whether 
any  damage  is  likely  to  arise,  show  distinctly  that  in  purchas- 
ing the  surface  the  company  obtained  the  surface  and  nothing 
more,  and  if  it  desired  to  obtain  more  must  proceed  under  the 
78th  and  79th  sections,  and  must  compensate  the  mine  owner  for 
the  additional  rights  taken  from  him.  If  the  right  to  get  the 
minerals  was  already  gone,  there  was  no  necessity  for  the  inser- 
tion of  these  provisions.  Nor  was  there  any  need  to  guard  against 
the  improper  working  of  the  mines  if  the  owner  was  not  entitled 
to  work  them  at  alL  The  use  of  the  word  "  proper "  shows  that 
the  mine  owner  was  entitled  to  work  .the  mines,  and  pointed  out 
the  mode  and  manner  in  which  he  was  to  work  them.  The  78th 
and  79th  sections  do  but  render  effectual  the  exception  contained 
in  the  77th  section,  which  would  otherwise  be  illusory  and  absurd. 

*  The  case  of  Fletcher  v.  The  Great  Western  Railway,  4  [•  36] 
H.  &  N.  242,  5  H.  &  N.  689,  was  properly  decided,  and  is 


714  MINES   AND   MINERALS. 

Ho.  88.  —  Onat  Weitem  Bdlway  Co.  v.  Benustt,  L.  li.  8  H.  L.  86,  87. 

directly  in  point  here.  There  it  was  insisted  that  the  company  was 
to  be  protected  against  damage  from  any  working  whatever.  The 
special  case  found  that  the  working  would  have  taken  away  the 
support,  and  the  question  was,  whether  the  mine  owner  was,  under 
these  circumstances,  entitled  to  compensation  for  what  he  would 
lose  if  prevented  from  working  the  mine.  It  was  held  that  he 
was,  and  that  decision  was,  after  full  argument  on  error,  confirmed 
in  the  Exchequer  Chamber. 

The  case  of  The  Caledonian  Railway  Company  v.  Sprot,  2  Macq. 
Sc.  Ap.  449  (p.  686,  ante)^  was  on  an  Act  of  Parliament  entirely 
different  from  the  present,  and  is  inapplicable  here.  Elliot  v.  The 
North  Eastern  Railway  Company,  10  H.  L.  C.  333,  is  more  com- 
plicated, but  the  same  observation  applies  there. 

Here,  as  the  grant  of  the  surface  is  by  the  statute,  and  the  con- 
veyance is  expressly  made  subject  to  the  rights  of  the  owner  of 
the  mines,  who  is  authorised  to  work  them  by  all  proper  and 
necessary  means,  the  simple  question  here  is  one  of  the  construc- 
tion of  the  words  of  the  79th  section.  The  word  "improper"  was 
meant  only  to  protect  a  railway  company  against  the  wanton 
exercise  of  the  rights  of  an  owner  of  mines  whose  rights  were  thus 
reserved.  If  the  work  is  properly  conducted  he  is  entitled  to 
work  the  mines,  or  to  compensation  if  the  company  desires  him 
to  abstain  from  working  them. 

This  question  has  lately,  and  since  the  case  of  Fletcher  v.  The 
Cheat  Western  Railway  Company,  been  under  consideration  in  the 
Court  of  Chancery,  and  a  decision  has  been  pronounced  upon  it  by 
Vice-Chancellor  Wood  in  the  case  of  The  North  Western  Railway 
Company  v.  AcJcroyd,  31  L.  J.  Ch.  588,  where  it  was  held  that 
the  owner  of  land  granting  to  a  railway  company  the  right  to 
make  and  maintain  a  tunnel,  was  in  the  same  position  with  re- 
spect to  his  right  to  work  mines,  under  the  sections  of  the  Bail- 
ways  Clauses  Act,  as  if  the  land  had  been  purchased,  and  under 
them  he  was  held  entitled  to  work  the  mines,  and  a  bill  filed  to 
require  the  owner  of  the  mines  to  leave  sufficient  subjacent  and 
adjacent  support  was  dismissed.  In  the  case  of  The  Wyrley  Canal 
Company  v.  Bradley,  7  East,  368  (8  R.  R  642),  a  canal 
[*  37]  *  Act,  like  the  Railways  Clauses  Act,  excluded  the  company 
from  purchasing  mines  under  the  canal,  and  reserved  to  the 
owner  the  power  to  work  them  after  giving  notice,  the  company 
having  power  to  stop  the  working  on  paying  compensation.     It 


R.  C.  VOL.  XVIL]       sect.  IV.  —  RIGHTS   OF  SUPPORT.  715 

Ho.  88.  — Chraat  Western  Bailway  Co.  v.  Bennett,  L.  B.  8  H.  L.  37,  38. 

was  there  held  that  the  right  to  work  was  left  as  before  the  Act 
if,  after  notice  given,  the  company  did  not  purchase  the  owner's 
rights.  The  case  of  The  Dudley  Canal  Company  v.  Grazebrook 
1  B.  &  Ad.  59  (35  R  E.  212),  followed,  and  then  came  The 
Stourbridge  Canal  Company  v.  Ths  Sari  of  Dudley,  8  E.  &  E.  409, 
where  clauses  similar  to  these  existed;  and  in  both  it  was  held 
that  the  owner  of  the  mines  was  entitled  to  work  them  in  the 
usual  and  ordinary  manner,  though  damage  might  ensue  from  his 
BO  doing,  if,  after  notice,  compensation  were  not  made  to  him. 
These  authorities  are  decisive  as  to  the  construction  which  ought 
to  be  put  on  the  sections  of  the  statute  in  the    resent  case. 

Mr.  Manisty  replied. 

March  18.    The  Lord  Chancellor  (Lord  Chelmsford)  :  — 

My  Lords,  this  writ  of  error  is  virtually  brought  upon  the 
decision  of  the  Court  of  Exchequer  and  the  Court  of  Exchequer 
Chamber  in  the  case  of  Fletcher  v.  The  Ghreat  Western  Railway 
Company  (p.  708,  Tiote,  ante),  as  upon  the  authority  of  that  case 
the  present  one  was  decided  without  argument. 

The  question  to  be  determined  is  whether,  the  plaintiffs  in  error 
having  purchased  the  lands  of  the  defendant  in  error  for  the  pur- 
pose of  constructing  a  portion  of  their  railway,  and  the  conveyance 
to  them  containing  an  exception  of  "the  mines  and  minerals  in 
and  under  the  hereditaments  and  premises,  with  all  the  necessary 
powers  and  privileges  for  getting  and  working  the  same,"  the 
plaintiffs  in  error  are  entitled  to  sufficient  support  to  the  railway 
from  the  portion  of  the  mines  and  minerals  lying  under  or  adjoin- 
ing the  same,  without  being  bound  to  make  compensation  to  the 
defendant  in  error. 

The  question  depends  entirely  upon  the  clauses  contained  in  the 
Eailways  Clauses  Consolidation  Act,  1845,  under  the  heading, 
"  with  respect  to  mines  lying  under  or  near  the  railway," 
beginning  with  *  sect.  77.  This  will  at  once  render  inap-  [*  38] 
plicable  the  two  cases  of  The  Caledonian  Railway  Company 
Y.  Sprot,  2  Macq.  Sc.  Ap.  449  (p.  686,  ante),  and  Elliot  v.  The 
Directors  of  the  North  Eastern  Railway  Company,  10  H.  L.  C. 
333,  decided  in  this  House,  neither  of  which  decisions  turned 
upon   the  sections  in  question. 

By  the  77th  section  of  the  Railways  Clauses  Consolidation  Act  a 
railway  company  is  not  "  to  be  entitled  to  any  mines  of  coal,  iron- 
stone, slate,  or  other  minerals,  under  any  lands  purchased  by  them, 


716  MINES  AND  MINERALS. 

Ho.  28.  —Chraat  Weftem  Bailway  Co.  v.  Bemnett,  L.  B.  2  H.  L.  88,  89. 

except  only  such  parts  thereof  as  shall  be  necessary  to  be  dug,  or 
carried  away,  or  used  in  the  construction  of  the  works,  unless  the 
same  shall  have  been  expressly  purchased.'*  The  provision  con- 
tained in  this  section  is  extremely  beneficial  to  railway  companies. 
They  are  not  to  have  any  mines  or  minerals,  that  is  (any  part  of 
the  mines  or  minerals)  under  the  land  purchased  by  them;  but 
they  may  secure  sufficient  support  to  the  railway  by  purchasing  it 
from  the  owner  of  the  mines,  or,  if  they  think  it  likely  that  the 
mines  under  the  railway  may  not  be  worked  for  an  indefinite 
period,  they  may  postpone  the  purchase  until  the  necessity  for  it 
arises. 

That  this  section  reserves  to  the  mine  owner  all  the  minerals, 
however  near  they  may  be  to  the  surface,  unless  the  company 
chooses  to  purchase  them,  appears  very  clearly  from  the  exception 
of  "  the  parts  necessary  to  be  dug,  or  carried  away,  or  used  in  the 
construction  of  the  company's  works,"  as  these  will,  of  course,  be 
the  minerals  lying  nearest  to  the  surface.  But  if  the  company 
desires  to  postpone  the  purchase  of  the  mines  until  it  is  known  that 
they  are  to  be  worked,  the  company  is  enabled  to  do  so,  with  per- 
fect safety,  from  the  protection  afforded  by  the  78th  section,  which 
compels  the  mine  owner  whose  mines  lie  under  the  railway,  or 
within  a  certain  distance  of  it,  who  is  desirous  of  working  the 
same,  "  to  give  thirty  days'  notice  of  his  intention,  and  the  com- 
pany may  then  cause  the  mines  to  be  inspected,  and  if  it  appear 
that  the  working  of  the  mines  is  likely  to  damage  the  railway,  and 
if  the  company  be  willing  to  make  compensation  for  the  mines  to 
the  owner,  he  shall  not  work  or  get  the  same."  This  section  ap- 
pears to  me  to  leave  the  mine  owner  to  work  his  mines  exactly  as 
he  would  if  the  surface  belonged  to  him,  unless  the  railway  com- 
pany chooses  to  prevent  him  by  expressing  willingness  to 
[*39]  make  him  compensation.  *If  the  company  should  not, 
within  thirty  days,  state  their  willingness  to  treat  with  the 
mine  owner  for  the  payment  of  compensation,  he  is,  by  the  79th 
section,  left  at  liberty  to  work  the  mines,  "  so  that  the  same  be 
done  in  a  manner  proper  and  necessary  for  the  beneficial  working 
thereof,  and  according  to  the  usual  manner  of  working  such  mines 
in  the  district."  But  to  guard  railway  companies,  under  these 
circumstances,  against  any  unfair  mode  of  working  the  mines  to 
their  prejudice,  it  is  provided  by  the  same  section  that  "if  any 
damage  or  obstruction  be  occasioned  to  the  railway  or  works  by 


R.  C.  VOL.  XVIL]      sect.  IV.  —  BIGHTS   OF  SUPPORT.  717 

Ho.  8SI.  — Chraat  Western Bailway  Co.  v.  Bennett,  L.  B.  2H.  L.  39,  40. 

improper  working  of  such  mines,  the  owner  shall  repair  and  make 
it  good."  And  the  83rd  section  gives  the  company  power  "to 
ascertain  whether  the  mines  are  being  worked,  or  have  been 
worked,  "so  as  to  damage  the  railway  or  works." 

The  mine  owner,  therefore,  may  work  his  mines  in  a  manner 
beneficial  to  himself,  in  order  to  win  the  largest  quantity  of  min- 
erals that  the  mine  will  yield,  but  so  as  not  to  depart  from  the 
usual  manner  of  working  in  the  district 

As  to  the  obligation  imposed  upon  the  mine  owner  to  make  good 
any  damage  occasioned  by  his  improper  working  of  the  mines,  if 
the  argument  of  the  plaintififs  in  error  is  correct,  that  the  company 
is,  from  the  first,  entitled  to  a  sufficient  support  to  the  railway 
from  the  mines,  every  working  which  diminishes  that  support 
must  be  improper.  It  then  becomes  difficult  to  understand  how  any 
case  can  arise  for  the  application  of  the  provisions  of  the  78th  section. 
If  the  working  of  the  mines  and  minerals  is  likely  to  produce 
damage  to  the  works  of  the  railway,  it  must  be  by  taking  away 
the  support  to  which  the  company  is  supposed  to  be  entitled ;  but 
then,  instead  of  the  company  being  required  to  make  compensation 
to  prevent  the  owner  from  working  at  all,  any  working  would  be 
improper,  and  the  owner  would  be  compellable,  under  the  79th 
section,  to  make  good,  at  his  own  expense,  any  damage  done. 

The  case  of  ITie  Dudley  Canal  Coinpany  v.  Grazebrook,  1  B.  & 
Ad.  59  (35  E.  R  212),  appears  to  me  to  be  a  strong  authority  in 
favour  of  the  construction  of  the  sections  of  the  Eailways  Clauses 
Consolidation  Act  which  I  have  adopted. 

I  am,  therefore,  of  opinion  that  the  judgment  of  the  Court  below 
ought  to  be  affirmed. 

*  Lord  Cranworth  :  —  [*  40] 

My  Lords,  I  have  very  little  to  add  to  what  has  fallen 
from  my  noble  and  learned  friend.  Independently  of  the  statute, 
I  think  the  contention  of  the  company  would  have  been  unanswer- 
able. I  should  be  extremely  sorry  if  this  case  should  at  all  bring 
into  doubt  the  doctrine  which  was  enunciated  and  acted  upon  by 
this  House  in  the  case  of  ITie  Caledonian  Bailway  Company  v. 
Sprot,  which  doctrine  is  this:  that  if  I  sell  my  land  for  the 
purpose  of  a  railway  being  made  upon  it,  I  impliedly  sell  all  neces- 
sary support,  both  subjacent  and  adjacent,  that  is  required  for  the 
purpose  of  supporting  that  railway.  In  the  case  of  The  Caledo- 
nian Bailway  Company  v.  Sprot,  the  conclusion  at  which  this 


718  MINES  AND  MINERALS. 


Ho.  82. -~  Great  Weftem  Bailway  Co.  v.  Bennett,  L.  B.  2  H.  L.  40,  41. 

House  arrived  was,  that  although  the  sale  of  the  land  was  one 
which  might  have  been  compelled,  probably,  under  the  statutes 
then  in  force  (not  the  present  statute,  because  it  was  before  the 
passing  of  the  statute  now  in  force),  yet,  in  truth,  it  was  a  mere 
contract  between  Mr.  Sprot  and  the  company,  and  must  be  dealt 
with  just  as  if  no  statute  existed.  But  the  difficulties  which  had 
arisen  upon  this  subject  were,  I  presume,  what  gave  rise  to  these 
provisions  of  the  Eailways  Clauses  Act  which  are  now  under 
discussion. 

It  was  obviously  the  intention  of  the  Legislature,  in  making 
these  provisions,  to  create  a  new  code  as  to  the  relation  between 
mine  owners  and  railway  companies,  where  lands  were  compul- 
sorily  taken  for  the  purpose  of  making  a  railway.  The  object  of 
the  statute  evidently  was  to  get  rid  of  all  the  ordinary  law  on  the 
subject^  and  to  compel  the  owner  to  sell  the  surface ;  and  if  any 
mines  were  so  near  the  surface  that  they  must  be  taken  for  the 
purposes  of  the  railway,  to  compel  him  to  sell  them,  but  not  to 
compel  him  to  sell  anything  more.  The  land  was  to  be  dealt  with 
just  as  if  there  were  no  mines  to  be  considered ;  nothing  but  the 
surface.  That  being  so,  justice  obviously  requires  that  when  the 
mine  owner  thinks  it  beneficial  to  him  to  work  his  mines,  and  pro- 
ceeds to  do  so,  he  should  be  just  in  the  same  position  as  if  he  had 
never  sold  any  part  of  the  surface  at  all.  If  he  had  not  compul- 
sorily  parted  with  the  surface,  he  might  have  worked  his  mines, 
sinking  his  shaft  from  the  very  surface  down  to  the  very  bottom 

of  the  mine.  The  object  of  the  statute  was  that,  for  the 
[*  41]  purpose  of  *  the  railway,  the  company  was  to  take  (and  it 

was  a  very  beneficial  provision  for  the  company)  that,  and 
that  only,  which  is  necessary  for  the  purpose  of  the  railway ;  and 
that  all  the  rest  should  be  left  to  be  dealt  with,  whenever  the  time 
for  working  the  mine  should  arrive.  It  is  plain  to  me,  upon  the 
construction  of  that  clause  of  the  statute,  that  that  was  the 
intention  of  the  Legislature;  and  that  intention  is  fully  carried 
into  effect  by  giving  to  the  mine  owner,  in  this  case  the  respond- 
ent, Mr.  Bennett,  that  which  the  Court  below  has  given  to  him, 
namely,  the  full  right  in  all  the  mines  which  he  worked,  just  as  if 
he  had  not  sold  the  surface. 

I  think,  therefore,  the  judgment  below  is  perfectly  right,  and 
that,  consequently,  judgment  ought  to  be  given  for  the  defendant 
in  error. 


R.  C.  VOL.  XVII.]       SECT.  IV.  —  BIGHTS   OF   SUPPORT.  719 

Ho.  88.  —  Chraat  Weftem  Bailway  Co.  ▼.  Bennett,  L.  B.  8  H.  L.  41,  48. 

Lord  Westbury  :  — 

My  Lords,  this  case  presents  no  difficulty  when  the  true  relation 
between  the  railway  company  and  the  mine  owner,  as  settled  by  the 
statute,  is  once  ascertained.  A  railway  company  is  under  no  obli- 
gation, I  should  rather  say,  is  under  a  disability,  to  purchase  mines 
unopened,  mines  lying  beneath  the  land  required  for  the  railway. 
They  are  absolutely  reserved  and  excepted  out  of  the  conveyance 
to  be  made  by  the  landowner  to  the  company.  The  chief  argu- 
ment for  the  present  appellants,  embodied  in  their  second  reason, 
that  the  conveyance  grants  to  the  company  as  much  as  is  requisite 
for  the  support  of  the  railway,  is  entirely  taken  away  by  the  77th 
section  of  the  statute.  Li  that  section  it  is  positively  declared  that 
"all  such  mines,  excepting  as  aforesaid,"  —  that  is,  except  the 
small  portion  of  minerals  which  may  be  disturbed  or  brought  to 
bank  by  the  operation  of  making  the  railway,  — "  all  such  mines, 
excepting  as  aforesaid,  shall  be  deemed  to  be  excepted  out  of  the 
conveyance  of  such  lands,  unless  they  shall  have  been  expressly 
named  therein  and  conveyed  thereby."  In  the  face  of  these 
words  there  is  no  room  for  the  ordinary  implication  which  applies 
to  a  common  grant,  namely,  that  it  extends  by  implication  to  all 
that,  though  not  named,  which  is  necessary  for  the  support  or 
enjoyment  of  the  thing  granted. 

Then  what  relation  remains  between  the  railway  company  and 
the  mine  owner  ?  It  is  defined  by  the  statute.  Although  the 
*  mines  in  &olido  are,  without  any  exception,  reserved  to  [*42] 
the  mine  owner,  he  is  not  at  liberty  to  win  them,  or  to  pro- 
ceed to  get  them,  without  notice  to  the  railway  company.  That 
notice  expires  after  a  month.  During  that  month  the  railway 
company  is  under  an  obligation  to  ascertain  whether  it  may  be 
requisite,  for  the  support  of  the  railway,  to  purchase  any  part  of 
the  subjacent  minerals.  If  the  company  should  not  think  it 
requisite,  the  mine  owner  is  left  under  no  other  obligation  than 
that  he  is  to  win  the  mines  in  a  proper  manner ;  and  if  there  is  a 
custom  of  the  country  it  must  be  done  according  to  that  cus- 
tom ;  and  the  railway  company  is  armed  with  authority  to  inspect 
the  working  from  time  to  time,  in  order  to  ascertain  whether  any 
damage  is  likely  to  ensue,  or  whether  any  proceeding  of  the  mine 
owner  is  inconsistent  with  the  ordinary  beneficial  manner  of 
winning  the  minerals.  The  relation,  therefore,  between  the  rail- 
way company  and  the  mine  owner  is  one  so  clearly  defined,  so 


720  MINES  AND  MINERALS. 

Hot.  81, 82. — Calfldonian  By.  Co.  v.  Bprot ;  Great  W.  By.  Co.  v.  Bennott  —  Votw. 

useful  to  the  railway  company,  and  at  the  same  time  so  fair  and 
just  to  the  mine  owner,  that  one  is  astonished  that  any  argument 
could  have  been  raised  upon  the  ordinary  implication  applicable  to 
a  grant,  which  is  so  entirely  excluded  by  the  express  enactment  of 
the  statute,  and  also  by  the  accompanying  provisions  that  define, 
beyond  the  possibility  of  mistake,  the  true  relation  which,  after 
the  land  has  been  conveyed  to  the  railway  company,  continues  to 
exist  between  the  company  and  the  mine  owner.  There  can  be 
no  doubt  that  the  decision  of  the  Court  below  is  right;  and  I 
entirely  concur  with  my  noble  and  learned  friends,  that  the 
judgment  must  be  affirmed.  Jvdgment  affirmed. 

Lord's  Journals,  18th  March,  1867. 

ENGLISH  NOTES. 

The  cases  arising  upon  the  earlier  Special  Acts  show  by  contrast  how 
the  general  principles  applicable  to  the  right  of  support  are  modified 
when  land  has  been  taken  under  Acts  incorporating  the  Bailways 
Clauses  Consolidation  Act,  1845. 

The  following  case,  of  comparatively  recent  date,  illustrates  the 
efEect  of  one  of  these  earlier  Acts. 

In  1830,  under  the  powers  of  a  Special  Act  of  1825,  land  was  con- 
veyed to  a  tramway  company  for  the  purpose  of  a  tramway,  which  was 
intended  to  be  worked  by  horses.  The  Act  reserved  to  the  owner  of 
the  land  conveyed  the  subjacent  mines,  with  power  to  work  them,  but  not 
so  as  to  injure  the  tramway.  By  a  Special  Act  of  1855  the  tramway  was 
vested  in  another  company,  incorporated  with  power  to  alter  the  tramway 
into  a  railway  of  the  modern  type.  This  Act  incorporated  the  Railways 
Clauses  Consolidation  Act,  1845,  and  repealed  the  Act  of  1825,  but 
without  prejudice  to  anything  done  under  it,  and  to  all  rights  and 
liabilities  which,  if  the  repealing  Act  had  not  been  passed,  would  be 
incident  to  or  consequent  on  anything  so  done.  Under  the  Act  of  1855 
the  tramway  was  reconstructed  and  made  into  a  broad  gauge  passenger 
railway  suitable  for  locomotive  engines.  Under  subsequent  Acts  the 
railway  became  part  of  the  Great  Western  Railway  system.  In  June, 
1892,  —  the  mines  having  been  previously  worked  so  as  to  leave  sup- 
ports sufficient  for  the  horse  tramway, —  the  defendants,  the  mine  own- 
ers, gave  notice  under  sect.  78  of  the  Railways  Clauses  Consolidation  Act, 
1845,  of  their  intention  to  work  the  minerals  under  and  near  the  plain- 
tiffs railway.  The  plaintiff  company  declined  to  treat  or  to  admit  any 
claim  to  compensation.  The  defendant  having  accordingly  commenced 
to  work  the  minerals,  the  plaintiff  company  claimed  an  injunction.  It 
appeared  by  the  evidence  that  the  mode  of  working  was  such  as  to  cause 


B,  C.  VOL.  XVII.]       SECT.  IV.  —  RIGHTS   OF  SUPPORT.  721 

Hot.  21, 88.  —  Caledonian  By.  Co.  v.  Bprot ;  Gnat  W.  By.  Co.  v.  Bennett — Hotoa. 

subsidence,  even  if  the  burden  on  the  surface  had  not  been  increased  by 
the  conversion  of  the  horse  tramway  into  a  railway  carrying  locomotive 
traffic.  It  was  held  by  Ejskewioh,  J.,  that  the  plaintiffs  were  enti- 
tled to  an  injunction;  for  they  were  entitled  under  the  original  convey- 
ance of  1830  to  a  right  of  support  (sufficient  for  the  old  tramway)  without 
payment  of  compensation;  that  the  Act  of  1855  did  not  operate  to  alter 
the  express  contract  contained  in  the  conveyance  of  1830;  and  that  the 
right  under  that  contract  had  not  been  lost  by  reason  of  the  conversion 
of  the  old  tramway  into  a  railway.  Gr-reat  Western  Railway  Co.  v, 
Cefn  Cribbwr  Brick  Co.,  1894,  2  Ch.  157,  63  L.  J.  Ch.  500,  70  L,  T. 
279,  42  W.  R.  493. 

In  the  case  of  Elliot  v.  North  Eastern  Railway  Co.  (appeal  from 
North  Eastern  Railway  Co.  v.  Elliot,  H.  L.  1863),  10  H.  L.  Cas.  333, 
32  L.  J.  Ch.  402,  referred  to  in  the  arguments  of  the  latter  principal 
case,  there  was  a  conveyance  to  a  railway  company  under  a  Special  Act 
of  1834  which  provided  that  all  coal  or  other  mineral  should  be  deemed 
to  be  excepted  out  of  any  purchase  of  land  by  the  company,  and  might 
be  worked  by  the  owner  thereof  "so  that  no  damage  or  obstruction  be 
done  or  thereby  occur  to  or  in  such  railway  or  other  works  ;  "  and  by 
another  section  (sect.  28),  that  whenever  the  workings  should  approach 
within  twenty  yards  of  any  masonry  or  building  belonging  to  the  com- 
pany, the  mine  owner  should  give  notice  to  the  company,  and  the  com- 
pany might  deliver  a  declaration  requiring  the  minerals  under  such 
masonry  or  building  to  be  reserved  for  their  protection,  and  in  that  case 
they  should  purchase  the  same;  but  if  they  should  not  deliver  such 
declaration,  the  mineral  owner  might  work  the  minerals  in  the  usual 
way,  doing  no  avoidable  damage.  The  land  was  taken  for  the  purpose 
of  building  a  bridge  of  great  weight,  and  the  bridge  was  built  accord- 
ingly. At  the  time  of  building  the  bridge  there  existed  under  the  land 
some  workings  of  an  old  mine  which  had  been  drowned;  and  the  support 
to  the  bridge  consisted  partly  of  the  pillars  which  had  been  left  in  the 
old  mine  and  partly  of  the  water  in  the  mine.  In  1859  the  appellant,  a 
lessee  of  mines  deriving  title  from  the  vendor,  threatened  to  drain  the 
old  mine  and  renew  the  workings.  It  was  held  that  in  addition  to  the 
special  protection  afforded  by  the  Act  in  respect  of  workings  within 
twenty  yards  of  any  masonry  or  building,  the  railway  company  was 
entitled,  by  way  of  necessary  incident  to  the  grant  of  the  land,  to  such 
latera*  support  from  the  adjacent  land  of  the  vendor  not  within  the 
twenty  yards,  as  might  be  necessary  to  uphold  the  bridge ;  and  the 
House  affirmed  the  decree  of  the  Court  of  Chancery  granting  a  perpetual 
injunction  restraining  the  appellant  from  working  the  mines  within 
twenty  yards  unless  notice  should  be  given  pursuant  to  the  28th  section 
of  the  Act,  and  the  company  should  have  neglected,  &c.,  and  from  work- 
voL.  XVII.  —  46 


722  MINES  AKD  MINERALS. 

Hot.  21, 88.  — Caledonian  By.  Co.  v.  Bprot ;  Chraat  W.  By.  Co.  v.  Bedmett  ~  Hotel. 

ing  the  mines  beyond  the  twenty  yards  in  such  a  manner  as  should 
affect  the  stability  of  the  bridge. 

The  clauses  (77^  78,  and  79)  of  the  Railways  Glauses  Consolidation 
Act,  1845,  have  been  held  to  have  been  enacted  for  the  benefit  of  the 
railway  company  to  exempt  them  from  the  obligation  of  purchasing 
the  mines  along  with  the  surface.  They  do  not  deprive  the  company  of 
the  power  to  purchase  the  mines  compulsorily  either  along  with  the 
purchase  of  the  surface,  or  at  any  time  subsequently  within  the  time 
limited  by  the  Act  for  the  exercise  of  the  compulsory  powers.  Erring^ 
ton  V.  Metropolitan  District  Railway  Co.  (C.  A.  1882),  19  Ch.  D. 
659,  51  L.  J.  Ch.  305,  46  L.  T.  443,  30  W.  R.  663. 

The  purchaser  from  the  railway  company  of  superfluous  land  ac- 
quires no  greater  right  of  support  than  ^he  railway  company  had ; 
and  where  the  railway  company  constituted  under  an  Act  incorpo- 
rating the  Railways  Clauses  Consolidation  Act,  1845,  has  not  pur- 
chased the  mines,  neither  they  nor  the  purchaser  from  them  of  the 
superfluous  land  has  acquired  any  right  of  support  against  a  mine 
owner  who  works  the  mines  in  the  usual  way.  Pountney  v.  Clayton 
(C.  A.  1883),  11  Q.  B.  D.  820,  52  L.  J.  Q.  B.  566,  49  L.  T.  283,  31 
W.  R.  664. 

The  decision  of  the  Judges  of  the  Queen's  Bench  (Mathew,  J.,  and 
Kennedy,  J.)  in  the  matter  of  an  arbitration  between  Gerard  and  the 
London  and  NoHh  Western  Railway  Co.,  1894,  2  Q.  B.  915,  63  L.  J. 
Q.  B.  764,  71  L.  T.  548,  43  W.  R.  9,  is  further  instructive  as  to  the 
effect  of  sections  77-80  of  the  Railways  Clauses  Consolidation  Act,  1845. 
The  railway  company  gave  notice  to  treat  for  certain  land  "  together 
with  the  stones  and  clay  and  gravel  within  and  under  the  same,''  and  a 
notice  to  treat  for  certain  other  land  '*  together  with  the  mines  and  min- 
erals thereunder  except  all  mines,  beds,  and  seams  of  coal."  The  com- 
pensation under  the  notices  was  referred  to  arbitration.  There  were 
valuable  beds  of  coal  under  the  land  comprised  in  the  notices  and  under 
the  adjacent  land  of  the  landowners;  but  at  the  date  of  the  arbitration 
this  coal  was  not  being  worked,  nor  was  there  any  immediate  prospect 
of  its  being  worked  in  the  ordinary  course  of  mining.  At  the  hearing 
of  the  arbitration  evidence  was  admitted  by  the  arbitrator  of  the  value  of 
the  subjacent  and  adjacent  coal  which  it  would  be  necessary  to  leave  for 
the  support  of  the  railway.  The  Court  held  that  the  evidence  waa 
wrongly  admitted;  that  the  rights  of  the  landowner  and  the  railway 
company  were  not  altered  by  the  fact  that  the  company  had  taken  some 
of  the  underground  strata  as  well  as  the  surface  of  the  land;  and  that 
the  landowner  was  not  entitled  to  recover  compensation  in  respect  of  the 
un gotten  coal  until  the  time  arrived  for  working  the  coal-beds,  and  then 
only  by  proceedings  under  sect.  77  and  the  following  sections  of  the  Act, 


R.  0.  VOL,  XVU.J  SECT.  V.  —  LIMITED  OWNEES.  723 

Ho.  23.  —  Bamdflin'i  Caae.    Sftondan  v.  Xarwood,  6  Co.  Sop.  12  a.  —  BbIo. 


The  rule  is  further  illustrated  hj  the  cases  of  Glasgow  v.  Farie  and 
Midland  Railway  Co.  v.  Eobinson,  Kos.  8  and  9,  pp.  485  and  616,  ante, 
and  by  the  case  of  Euabon  Brick  and  Terra  Cotta  Co.  v.  Great  Western 
Railway  Co.,  cited  in  notes  thereto,  p.  532,  ante. 

AMEBICAN  NOTES. 
The  Sprat  case  is  cited  by  Washburn  on  Easements  on  the  point  of  lateral 
support,  with  EUiot  v.  N.  E.  R.  Co.,  10  H.  L.  Caa.  383.  and  Bonomi  v.  Bach- 
house^  8  id.  348. 


Section  V.  —  JUmted  Owners. 

No.  23.  — SAUNDERS'S  CASE. 

SAUNDERS  V.  MARWOOD. 
(1599.) 

No.  24  — CLEGG  v.  ROWLAND. 
(1866.) 

RULE. 

A  LESSEE  of  land  (without  mention  of  mines)  may  work 
open  mines,  but  cannot  open  new  mines. 

Sannders's  Case. 
Sannders  y.  Marwood. 

Co.  Rep.  12ar-12b.  (s.  o.  1  Brownl.  141,  Cro.  EHz.  683). 

Xeose.  —  Opm  and  Unopened  Mines.  —  Waste. 

1.  If  a  lease  of  land  be  made  for  life,  or  for  years,  in  part  of  which  there  [12  a] 
M  a  mine  open,  the  lessee  may  dig  in  it.  2.  If  the  mine  were  not  open  at 
the  time  of  the  lease  made,  the  lessee  cannot  open  it.  8.  If  a  man  hath  mines 
hid  withm  his  land,  and  leases  his  land  and  all  mines  therein,  the  lessee  may  diir 
for  them.  4.  If  land  be  leased  in  which  there  is  a  hidden  mine,  and  the  lessee 
opens  It,  and  then  assigns  over  his  estate,  the  assignee  cannot  dig  in  it.  6.  If  a 
lessee  assigns  his  term  with  an  exception  of  the  profits  of  the  mines,  or  the 
mines  themselves,  or  of  the  timber,  trees,  &c.,  snch  exception  is  void. 

n  lessee  devises  his  term  and  dies,  and  then  his  executors  do  waste,  and  aftei- 
ward  assent  to  the  devise,  an  action  of  waste  in  the  tenuit  lies  against  the 
executors.  ^ 

Saunders  brought  an  action  of  waste  against  Marwood,  assignee 
of  the  term  in  the  tenement,  for  waste  done  in  digging  sea-coals; 


724  MINES  AND  MINEBALS. 

JTo.  28.  —  Sanndert't  CaM.    Bavnders  v.  Marwood,  6  Co.  Sep.  12  a,  18  bi 

the  defendant  pleaded  in  bar,  that  the  first  lessee,  who  opened 
the  mine,  granted  to  him  all  his  interest  in  the  land  cum  omntbus 
profic'  {except'  &  semper  reservatis  siM  &  hmred^  suis  tof  henefid  & 
projic*  miner'  Anplic^  the  coal  mine,  in  prmi  parcdV  Uri^  ac  omnir 
bus  arboribus  maeremii)  ;  and  averred,  that  the  said  mine  was  at 
the  time  of  the  assignment,  and  yet  is  open.  Whereupon  the 
plaintiff  demurred  in  law.  And  on  great  deliberation  it  was 
adjudged  for  the  plaintiff;  and  in  this  case  three  points  were 
resolved. 

1.  If  a  man  hath  land  in  part  of  which  there  is  a  coal  mine 
open,  and  he  leases  the  land  to  one  for  life,  or  for  years,  the 
lessee  may  dig  in  it;  for  inasmuch  as  the  mine  is  open  at  the 
time,  &c.,  and  he  leases  all  the  land,  it  shall  be  intended  that  his 
intent  is  as  general  as  his  lease  is ;  scil.  that  he  shall  take  the 
profit  of  all  the  land,  and  by  consequence  of  the  mine  in  it.  Vide 
17  Ed.  III.,  7  a,  b,  John  HulVs  case,  ace' ;  and  so  the  doubt  in 
F.  N.  B.  149  c  well  explained. 

2.  If  the  mine  were  not  open,  but  included  within  the  bowels 
of  the  earth  at  the  time  of  the  lease  made,  in  such  case  by  leasing 
of  the  land  the  lessee  cannot  make  new  mines»  for  that  shall  be 
waste.    F.  N.  B.  59,  and  22  Hen.  VI.  18  b,  ace'. 

3.  If  a  man  hath  mines  hid  within  his  land,  and  leases  his  land, 
and  all  mines  therein,  there  the  lessee  may  dig  for  them,  for  quando 

aliquis  aliquid  concedit,  concedere  videtur  &  id  sine  quo  res 
[*  12  b]  ipsa  esse  non  potest,  and  therewith  *  agrees  9  Ed.  IV.  8, 

where  it  is  said,  that  if  a  man  leases  his  land  to  another, 
and  in  the  same  there  is  a  mine  (which  is  to  be  intended  of  a 
hidden  mine),  he  cannot  dig  for  it ;  but  if  he  lease  his  land  and  all 
mines  in  it,  then  although  the  mine  be  hidden,  the  lessee  may  dig 
for  them ;  and  by  consequence  the  digging  of  the  mine  in  the 
principal  case  was  waste  in  the  first  lessee. 

4.  It  was  resolved,  that  although  the  mine  was  first  opened  by 
the  first  lessee,  yet  if  his  grantee  dig  in  it,  it  is  waste  in  him. 

5.  It  was  resolved,  that  the  exception  was  void,  for  first  by 
the  exception  of  the  profits  of  the  mine,  or  of  the  mine  itself,  the 
land  is  not  excepted ;  and  then  it  follows,  that  he  hath  excepted 
that  which  he  could  not  have  or  take :  as  if  a  man  assigns  his 
term,  and  excepts  the  timber  trees  on  the  land,  or  the  gravel,  or 
clay  within  the  land,  it  is  void,  for  he  cannot  except  to  himself  a 
thing  which  doth  not  belong  to  him  by  the  law.     And  although  it 


B,  a  VOL.  XVIL]         sect.  v.  —  LIMITED  OWNERS.  725 

Ho.  84.  — Glegg  v.  Bowland,  L.  B.  2  Eq.  100. 

was  said,  that  forasmuch  as  the  lessee  first  opened  the  mine,  and 
thereby  committed  waste,  and  so  had  quodam  modo  appropriated  it 
to  himself,  and  by  his  wrong  has  subjected  himself  to  lose  the 
place  wasted,  and  treble  damages,  it  should  be  a  reason  that  he 
might  keep  it  to  himself,  and  so  continue  punishable  for  the  waste 
of  which  he  was  the  first  author :  but  notwithstanding  that,  it 
was  resolved  as  above ;  for  his  wrong  which  he  committeth  cannot 
devest  the  interest  in  the  mine,  being  in  the  land  demised  to  him 
out  of  the  lessor ;  and  therefore  he  cannot  except  that  to  himself 
which  belongs  to  another :  and  it  was  adjudged,  Pasch.  28  Eliz.,  in 
the  Common  Pleas,  Eot.  820,-  between  Foster  and  Miles,  plaintiffs, 
and  Spencer  and  Bode,  defendants,  that  where  the  lessee  for  years 
assigns  over  his  term  except  the  timber  trees,  and  afterwards  the 
trees  were  felled,  that  the  action  of  waste  was  maintainable  against 
the  assignee,  for  the  exception  was  utterly  void  for  the  causes 
aforesaid,  qtu>d  nota  bene. 

And  in  this  case  it  was  said,  if  lessee  for  years  devises  his  term 
to  another,  and  makes  his  executors,  and  dies,  the  executors  do 
waste,  and  afterwards  assent  to  the  devise,  in  that  case,  although 
between  the  executors  and  the  devisee  it  hath  relation,  and  the 
devisee  is  in  by  the  devisor,  yet  an  action  of  waste  shall  be  main- 
tainable against  the  executors  in  the  tenuit  So  if  grantee  of  a 
term  on  condition  doth  waste,  and  afterwards  the  grantor  enters 
for  the  condition  broken,  the  action  of  waste  shall  be  maintainable 
against  the  grantee  in  the  tenuit.    30  Ed.  III.,  16  a,  b,  ace'. 

Clegg  y.  Rowland. 

L.  B.  2  Eq.  160-167  (s.  c.  35  L.  J.  Ch.  396;  14  L.  T.  217;  U  W.  B.  530). 

Poioer  to  lease  Mines.  —  Open  and  Unopened  Mines.  [160] 

A  lease  of  land  (without  mentioning  mines)  wiU  entitle  the  lessee  to  work 
open  but  not  unopened  mines.  If  there  be  open  mines,  a  lease  of  land  with 
the  mines  therein  will  not  extend  to  unopened  mines ;  but  if  there  be  no  open 
mines,  a  lease  of  land,  together  with  all  mines  therein,  will  enable  the  lessee  to 
open  new  mines. 

Where  there  was  a  oonvejance  to  trustees  of  land,  together  with  the  miues 
thereunder,  and  a  power  to  grant  leases  for  fourteen  years  without  mentioning 
mines :  — 

Hddf  that  the  trustees  had  no  power  to  grant  leases  of  unopened  mines. 

By  a  settlement  made  upon  the  marriage  of  Brierly  Rowland  and 
Charlotte  Rowland,  then  Charlotte  Clegg,  and  dated  the  22nd  of 


726  MINES  AND  MINERALS. 

Ho.  M.  — Clegg  V.  Bovlaod,  L.  B.  2  Eq.  100, 161. 

May,  1833,  Charlotte  Eowland  conveyed  to  J.  Whittaker  aad  J. 
Fallowfield,  their  heirs  and  assigns,  among  other  hereditaments,  one 
undivided  moiety  of  certain  messuages  or  dwelling-houses,  cottages, 

closes,  fields,  pieces  or  parcels  of  land  and  hereditaments, 
[*161]   *in  Oldham,  devised  to  the  said  Charlotte  Rowland  by 

the  will  of  her  father ;  and  also  of  and  in  certain  yearly 
chief  rents  issuing  out  of  the  said  hereditaments,  together  with  the 
mines,  minerals,  and  quarries  thereunder,  and  the  appurtenances 
thereto  belonging,  to  hold  the  same  upon  trust  to  pay  the  rent  and 
proceeds  thereof  to  Charlotte  Rowland  during  the  joint  lives  of 
herself  and  Brierly  Rowland,  but  not  by  way  of  anticipation,  for  her 
separate  use,  and  after  the  death  of  either  of  them,  then  to  the  sur- 
vivor for  life,  and  after  the  death  of  the  survivor,  then  upon  certain 
limitations  for  the  benefit  of  children,  and  in  default  of  children, 
then  the  property  was  to  be  in  trust  for  and  to  be  conveyed  and 
paid  to  such  person  or  persons  for  such  estate  and  estates  as 
Charlotte  Rowland  should  by  will  appoint,  and  in  default  of  ap- 
pointment, upon  certain  trusts  therein  expressed.  The  settlement 
contained  a  power  of  leasing  in  the  following  words:  "Provided 
always,  and  it  is  hereby  further  declared  and  agreed,  that  it  shall 
be  lawful  for  the  trustees  at  any  time  or  times  whilst  this  moiety 
shall  remain  vested  in  them  under  the  trusts  of  these  presents,  and 
during  the  joint  lives  of  Brierly  Rowland  and  Charlotte  his  wife, 
with  their  joint  consent  and  approbation  in  writing,  and  after  the 
decease  of  either  of  them,  then  with  the  consent  and  approbation 
of  such  survivor,  to  demise  and  lease  all  or  any  part  of  the  said 
moiety  of  the  said  hereditaments,  lands,  and  other  premises,  granted, 
released,  and  assigned  for  any  term  or  number  of  years  not  exceed- 
ing fourteen  years  in  possession,  but  not  in  reversion  or  by  way  of 
future  interest,  so  as  upon  every  such  demise  or  lease  there  be 
reserved  and  made  payable  during  the  continuance  thereof  respec- 
tively, to  be  incident  to  and  go  along  with  the  reversion  expectant 
on  the  same,  the  best  and  most  improved  yearly  rent  or  rents  that 
can  be  reasonably  had  or  gotten  for  the  same,  without  any  sum  or 
sums  of  money  being  taken  by  way  of  fines  in  respect  of  such 
demises  or  leases,  and  so  as  none  of  the  said  demises  or  leases  be 
made  dispunishable  of  waste  by  any  express  words  therein,  and  so 
as  in  every  such  demise  or  lease  there  be  a  clause  of  re-entry  on 
non-payment  of  the  rent  or  rents  to  be  thereby  reserved."  The 
settlement  contained  no  express  power  of  granting  mining  leases. 


R.  C.  VOL.  XVII.]         SECT.  V.  —  LIMITED  OWNERS.  727 

Ho.  84.  —  Clegg  V.  Bowlaad,  L.  B.  2  Eq.  161-168. 

On  the  1st  of  September,  1834,  being  about  a  year  and  a  half 
after  the  marriage,  a  lease  was  made  between  Brierly 
Eowland  and  *  Charlotte  Eowland  of  the  first  part,  the  [*162] 
trustees  of  the  settlement  of  the  second  part,  Mary  Anne 
Clegg  (the  sister  of  Charlotte  Eowland,  and  the  owner  of  the  other 
undivided  moiety  of  all  the  premises)  of  the  third  part,  Humphrey 
NichoUs  of  the  fourth  part,  and  James  Stopherd  and  Thomas 
Brideoake  (the  lessees)  of  the  fifth  part.  By  that  lease  two  mines 
of  coal,  known  as  the  Higher  and  Lower  Bent  Mines,  and  also  a 
mine  known  as  the  Black  Mine,  lying  under  certain  parts  of  the 
premises  comprised  in  the  above  settlement,  were  demised  by  the 
trustees  with  the  privity  and  approbation  of  Brierly  Eowland  and 
his  wife,  and  by  Mary  Anne  Clegg,  to  J.  Stopherd  and  T.  Brideoake 
for  ten  years,  subject  to  a  fixed  or  tie-rent  of  £100  per  annum,  and 
certain  royalties  therein  specified,  and  with  various  reservations  not 
necessary  to  be  specified. 

Of  the  mines  comprised  in  the  lease,  the  Higher  and  Lower  Bent 
Mine  had  never  been  worked.  The  Black  Mine  had  been  worked, 
but  the  working  had  been  abandoned  for  some  time,  and  it  was  now 
an  open  mine. 

One  moiety  of  the  rents  and  royalties  reserved  by  the  lease  were 
received  from  time  to  time  by  Brierly  Eowland  under  a  belief  that 
he  was  entitled  to  them,  and  he  applied  them  to  his  own  use.  This 
went  on  till  his  death.  There  were  no  children  of  the  marriage. 
The  wife  survived,  and  she  made  a  will  by  which  she  appointed  the 
premises  to  persons  who  were  now  represented  by  the  plaintiffs. 

The  bill  was  filed  against  the  legal  personal  representatives  of 
Brierly  Eowland,  and  also  against  John  Eowland  the  elder,  who  was 
a  substituted  trustee  under  the  settlement  three  years  and  a  half 
after  the  date  of  the  lease,  and  it  prayed  that  it  might  be  declared 
that  Brierly  Eowland  was,  at  the  time  of  his  death,  liable  to  account 
to  the  trustees  for  the  time  being  of  the  settlement  for  the  various 
sums  received  by  him  in  respect  of  such  mining  lease,  and  that  his 
estate  was  now  liable  to  account  for  and  pay  to  the  plaintiffs,  as  the 
executors  and  trustees  of  the  will  of  Charlotte  Eowland,  the  said 
principal  sums,  together  with  interest  thereon  from  the  time  they 
were  received;  and  the  bill  prayed  that  the  defendant,  John 
Eowland  the  elder,  as  the  surviving  trustee  of  the  settlement, 
might  be  declared  liable  for  and  ordered  to  pay  to  the 
plaintiffs  *  such   of  the  several   principal   sums  as  were  [*  163] 


728  HIKES  AND  mNEBALS. 

Ho.  24.  — Clegg  V.  BowUod,  L.  B.  2  Eq.  168, 161 

received  by  Brierly  Eowland  with  the  privity  of  the  defendant 
John  Rowland. 

To  this  bill  the  defendants  demurred. 

Mr.  BaUy,  Q.  C,  Mr.  Glasse,  Q.  C,  and  Mr.  JoUiflfe,  for  the  demurrer, 
contended  that  the  power  contained  in  the  settlement  of  May,  1833, 
enabled  the  trustees  to  grant  leases  of  unopened  as  well  as  open 
mines.  The  parcels  in  the  deed  comprised  the  words, "  mines, 
minerals,  and  quarries,"  which  were  therefore  conveyed  to  the 
trustees,  and  the  subsequent  power  to  lease  must  necessarily  have 
included  all  that  was  passed  by  the  parcels.  There  could  be  no 
reason  why  the  trustees  should  not  have  this  power  given  them,  as 
it  was  evidently  for  the  benefit  of  the  property  that  the  mines  should 
be  worked.  One  of  the  mines  was  actusdly  opened  at  the  time,  and 
it  could  not  be  said  that  there  was  no  power  to  grant  a  lease  of 
that  mine.  Must  it  not,  therefore,  have  been  the  intention  of  the 
parties  that  all  mines  should  be  worked  ?  It  made  no  difference 
that  there  was  a  clause  in  the  power  "  that  none  of  the  demises  or 
leases  should  be  made  dispunishable  of  waste ; "  for  in  the  case  of 
Daly  V.  Beckett,  24  Beav.  114,  where  similar  words  were  to  be 
found,  the  Master  of  the  Bolls  held  that  these  words  must  be 
rejected,  since  they  could  not  apply  to  an  existing  open  mine,  which 
was  comprised  in  the  lease  in  that  case  as  in  this. 

They  also  cited  Morris  v.  The  Rhydydefed  Colliery  Company^ 
3  H.  &  N.  473,  885,  and  Campbell  v.  Zeach,  Amb.  740. 

Mr.  Osborne,  Q.  C,  and  Mr.  Karslake,  in  support  of  the  bill 
submitted  that  this  was  no  more  than  the  ordinary  power  to  grant 
leases  at  rack-rent,  and  was  similar  to  most  of  the  forms  used  for 
that  purpose.  It  never  could  be  contended  that  such  a  power 
would  confer  the  right  to  grant  leases  of  unopened  mines.  It 
was  true  that  the  parcels,  after  describing  the  property,  contained 
this  addition, "  together  with  the  mines,  minerals,  and  quarrias  there- 
under," but  there  was  no  mention  of  the  word  "mines" in  the  power 
to  grant  leases.  The  ordinary  power  to  grant  mining  leases  was 
very  different  in  every  respect,  and  such  a  form  would  have  been 

introduced  if  mining  leases  had  been  intended. 
[*164]       *They   referred   to   Bainbridge   on  Mines,   Davidson's 
Forms,  Rogers  on   Mines,  and   Davidson's  Conveyancing 
Forms,  to  show  what  was  the  usual  clause  giving  power  to  grant 
mining  leases. 

In  the  case  of  Pearse  v.  Baron,  1  Jac.  158,  where  it  was  stipulated 


B.  C.  VOL.  XVn.]  SECT.  V.  —  LIMITED   OWNERS.  729 

Ho.  M.  —  Glegg  V.  Bowlaad,  L.  B.  8  Eq.  164,  165. 

that  a  settlement  should  be  executed,  which  was  to  contain  a  power 
of  leasing  for  twenty-one  years,  "  and  all  such  other  powers,  provi- 
soes, clauses,  covenants,  and  agreements,  as  are  usually  inserted  in 
settlements ; "  it  was  held  that  these  words  would  not  authorise 
the  introduction  of  a  power  of  granting  building  leases  for  longer 
torms.  The  case  of  Daly  v.  Beckett  was  certainly  not  like  the  pres- 
ent, or  it  would  probably  have  been  decided  in  the  plaintiffs  favour. 
Sir  Edward  Sugden,  in  his  book  on  Powers  (voL  ii.  p.  328,  7th  ed.), 
in  speaking  of  Campbell  v.  Leach,  said:  "  The  Master  of  the  Rolls 
held  that  the  unopened  mines  could  not  be  demised,  as  that  would 
be  an  authority  to  commit  waste,  and  the  power  expressed  that  no 
authority  was  to  be  given  to  commit  waste."  If  any  owner  in  fee 
had  granted  such  a  lease  as  this,  it  would  not  have  enabled  the 
lessee  to  open  mines  ;  therefore,  a  fortiori,  a  power  to  grant  leases 
would  not  comprise  a  power  to  grant  such  a  lease. 

They  also  referred  to  Whitfield  v.  Bewit,  2  P.  Wms.  240,  and 
Piatt  on  Leases,  vol.  i.  p.  21. 

As  to  the  demurrer  by  John  Rowland,  it  was  necessary  that  he 
should  be  made  a  party  to  the  suit,  since  the  cestui  que  trust  could 
not  file  a  bill  on  the  subject  of  the  trust  without  making  the  exist- 
ing trustee  a  co-plaintiff  or  defendant;  but  nothing  was  prayed 
against  him,  further  than  as  to  the  receipt  of  rents  by  Brierly 
Rowland,  with  the  privity  of  John  Rowland. 

Sir  R  T.  KiNDBRSLEY,  V.  C,  after  stating  the  facts  of  the  case, 
continued :  — 

In  considering  the  question,  what  was  the  efifect  of  the  power 
contained  in  the  settlement,  this  principle  must  be  borne  in  mind, 
that  if  there  be  open  mines  and  unopened  mines  on  the  same  land, 
belonging  to  an  owner  in  fee,  if  the  owner  grants  a  lease  of  that 
land,  whether  the  mines  be  expressly  included  in  the  lease  or  not, 
the  lessee  may  work  the  opened  mines,  but  he  is  not  justi- 
fied *  in  opening  an  unopened  mine.  That  is  laid  down  by  [*  165] 
Lord  Coke  very  explicitly,  Co.  Litt  54  b.  He  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  would  be  adjudged  waste.  And  if  there  be  open 
mines  and  the  owner  make  a  lease  of  the  land,  with  the  mines 


730  MIXES  AND  MINERilLS. 

Ho.  S4.  —  Clegg  ▼.  Bowlasd,  L.  B.  8  Eq.  165, 166. 

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." 

The  ground  of  the  law  thus  clearly  laid  down  by  Lord  Coke 
must  of  course  be,  that  where  there  are  an  open  mine  and  an 
unopened  mine,  unless  the  lease  contains  an  express  authority  to 
work  the  unopened  mine,  it  must  be  assumed  to  have  been  the 
intention  of  the  parties  that  the  lessee  should  not  open  the  un- 
opened mine.  That  is  very  clear.  It  is  true  that  in  the  present 
case  the  question  is,  not  what  is  the  construction  of  a  lease,  but 
what  is  to  be  the  construction  of  the  power  to  grant  leases  ? 
But  if  it  be  a  sound  doctrine  that  a  lease  by  an  owner  in  fee  of  the 
land  and  the  mines,  there  being  an  open  and  an  unopened  mine, 
does  not  justify  the  lessee  in  opening  the  unopened  mine,  then  it 
appears  to  me  that  a  power  to  make  a  lease  of  the  land  and  mines 
(even  mentioning  mines)  ought  to  be  construed  only  to  authorise 
the  granting  of  a  lease,  so  as  to  entitle  the  lessee  to  work  the  open 
mines,  and  not  to  entitle  him  to  work  the  unopened  mines.  That, 
I  think,  is  a  legitimate  and  reasonable,  I  might  almost  say  a  neces- 
sary, corollary  from  the  proposition  of  law  laid  down  by  Lord  Coke. 
It  will  be  observed  that  that  view  proceeds  on  the  supposition  that 
in  the  power  not  only  the  lands  and  hereditaments,  but  mines, 
were  specifically  mentioned.  But  in  the  present  case  the  power 
does  not  specifically  mention  mines  at  all.  It  is  true  that  mines 
and  minerals  are  mentioned  in  the  description  of  the  property 
conveyed,   and  the  power    mentions    the    hereditaments,   lands, 

and  other  premises  before  conveyed,  which  words  are 
[*  166]  *  large  enough  to  comprise  the  mines.     But  the  power  is 

in  form  the  ordinary  leasing  power  to  enable  the  granting 
of  leases  of  land  for  fourteen  years ;  and  not  only  are  there  none 
of  the  usual  provisions  applicable  to  leases  of  mines,  but  there  is 
the  express  provision  that  none  of  the  demises  or  leases  be  made 
dispunishable  of  waste.  This  is  not  very  accurate  language,  but  of 
course  it  must  mean  that  the  lessees  are  not  to  be  dispunishable 
for  waste.  And  it  is  justly  said  by  the  plaintiflfs,  that  the  opening 
of  an  unopened  mine  is  in  itself  waste.  And  no  doubt  opening  an 
unopened  mine  by  a  tenant  for  life,  or  lessee,  who  has  no  special 
authority  to  open  it,  is  waste  as  between  him  and  the  remainder- 


R.  a  VOL.  xvn.]      sect.  v. — limited  owners.  73X 

Ho.  24.  — Clegg  v.BowlAiid,  L.  B.  8  Eq.  166, 167. 

man  or  reversioner.  If  he  had  such  authority,  it  might  be  ques- 
tioned whether  his  doing  so  would  be  properly  termed  waste  ;  but 
that  is  perhaps  rather  a  question  of  words  than  of  substance.  In 
the  case  before  the  Master  of  the  Eolls,  where  he  interpreted 
the  power  to  be  an  express  power  to  grant  leases  to  work  un- 
opened as  well  as  opened  mines,  there  followed  the  clause  that  the 
lessee  was  not  to  be  made  dispunishable  of  waste.  It  might, 
perhaps,  have  been  suggested,  that  the  meaning  of  the  clause  pro- 
hibiting waste  was,  that  the  lessee  was  to  be  restricted  to  the  cus- 
tomary and  workmanlike  mode  of  working  the  mines,  whether 
already  opened  or  not,  so  as  not  to  injure  the  mine  for  future 
working,  or  prejudice  the  reversioner.  But  that  would  be  a  fprced 
construction  of  the  clause.  It  is  no  doubt  waste  for  a  lessee  to 
open  an  unopened  mine.  The  Master  of  the  Eolls  looked  at  it 
in  that  point  of  view.  He  considered  that  the  terms  of  the  pro- 
hibition were  such  as  to  prevent  the  lessee  from  committing 
waste  —  that  is,  from  opening  an  unopened  mine;  and  being  of 
opinion  that  the  terms  of  the  power  were  such  as  expressly  to 
authorise  the  working  of  unopened  mines,  he  came  to  the  con- 
clusion that  there  was  so  much  contradiction  in  the  clause  which 
imported  a  prohibition  against  waste  that  he  rejected  the  clause 
altogether.  That  case  is  a  strong  authority  for  this  proposition,  — 
that  such  a  clause  is  inconsistent  with  a  power  to  work  unopened 
mines ;  and,  therefore,  the  existence  of  that  clause  in  the  present 
case  appears  to  me  to  afford  a  strong  argument  for  holding  that 
this  power  was  not  intended  to  authorise  the  granting  of  a  lease  of 
any  unopened  mines. 

*  I  am  of  opinion  that  this  lease  was  invalid  so  far  as  it  [*  167] 
authorised  the  opening  of  a  new  mine,  and  that,  therefore, 
the  demurrer  of  the  representatives  of  Brierly  Eowland  must  be 
overruled. 

The  other  demurrer  is  by  John  Eowland  the  elder,  who  became 
a  trustee  two  or  three  years  after  the  granting  of  the  lease,  and  it 
is  contended  that  he  ought  himself  to  have  received  the  rents  and 
accumulated  them.  It  is  insisted  that  his  acquiescence  has  made 
him  liable.  I  do  not  see  any  ground  for  that.  There  is,  in  fact, 
nothing  to  show  that  he  knew  anything  of  the  lease.  It  was  done 
by  Brierly  Eowland  and  the  then  trustees.  Brierly  Eowland  went 
on  receiving  the  rents,  and  it  does  not  appear  that  the  trustees  ever 
received  any  of  them.    There  is  no  ground  for  holding  that  John 


732  MINES  AND  MINERALS. 


Ho.  26.  —  Eliaa  ▼.  Snowdon  Blato  Qnarrios  Co.,  4  App.  Cm.  454.  —  Bvle. 

Bowland  is  liable  for  want  of  diligence  in  the  execution  of  the 
trusts,  and,  therefore,  his  demurrer  must  be  allowed. 

ENGLISH  NOTES. 

The  cases  relating  to  powers  to  grant  leases  are  fully  considered  under 
the  next  following  rule  (Nos.  25  and  26,  post)* 

AMERICAN  NOTES. 

The  first  case  is  cited  in  Wood  on  Landlord  and  Tenant,  p.  138.  The 
second  case  is  cited  in  Washburn  on  Real  Property.  The  rule  finds  support 
in  Owings  v.  Emery,  6  Gill  (Maryland),  260  (citing  the  principal  case) ;  Burrr. 
Spencer,  26  Ck>nnecticut,  159 ;  68  Am.  Dec.  379.  The  doctrine  is  found  in 
Lynn*B  Appeal,  31  Penn.  State,  44 ;  Reed  v.  Reed,  16  New  Jersey  Equity,  248 ; 
Harlow  y.  Lake  Superior  Iron  Co.,  36  Michigan,  105. 


No.25.  — EIIAS  V.  SNOWDON  SLATE  QUAEREES 
COMPANY. 

(H.  L.  1879.) 

No.  26.— In  re  KEMEYS-TTNTE.    KEMEYS-TYNTE  v. 
KEMEYS-TYNTE. 

(1892.) 

RULE. 

A  TENANT  for  life  (impeachable  for  waste)  is  entitled,  as 
against  the  reversioner,  to  work  a  mine  for  commercial 
profit,  if  it  has  been  worked  with  a  view  to  profit  under 
lawful  authority  derived  from  the  settlor ;  or  if  the  settlor, 
for  a  consideration  yielding  a  present  profit,  had  committed 
the  working  of  it  to  another. 

Ellas  Y.  Snowdon  Slate  Quarries  Company. 

4  App.  Cas.  454-466  (s.  c.  48  L.  J.  Ch.  811 ;  41  L.  T.  289 ;  28  W.  R.  54). 

[454]  Mines.  —  Quarries.  —  Term  of  Tears.  —  Reversioner, 

A  termor  of  land,  with  no  grant  of  a  power  to  work  quarries  on  the  land^ 
cannot  open  any  in  order  to  work  them  ;  but  if  the  quarries  have  been  worked 
before  the  commencement  of  the  term,  he  may  continue  the  working. 


K.  C.  VOL.  XVII.]        SECT,  V.  —  LIMITED  OWNERS.  733 

Ho.  26. — Eliai  ▼.  Snowdon  Slate  Quazriea  Co.,  4  App.  Cu.  464, 466. 

The  owner  of  land  demised  it  in  1802,  by  way  of  mortgage,  for  a  term  of  five 
hundred  years  at  a  peppercorn  rent.  A  quarry,  called  the  lower  quarry,  appeared 
to  have  been  then  open  on  the  land,  and  had  been  worked  by  the  mortgagor. 
In  1820  the  mortgagee  foreclosed  the  equity  of  redemption,  and  took  possession  of 
the  property,  and  worked  not  only  the  lower  quarry,  but  another,  which  received 
the  name  of  the  upper  quarry.  In  1873  the  plaintiff,  the  reversioner  of  the  term 
of  five  hundred  years,  having,  not  long  before,  become  acquainted  with  the  fact 
that  he  was  the  reversioner,  filed  a  bill  to  restrain  the  termor  from  working  the 
quarries  and  for  an  account.  At  the  trial  the  great  dispute  of  fact  was  as  to  the 
time  when  the  upper  quarry  had  been  opened.  Vice-Chancellor  Hall  had 
thought  that  it  was  not  shown  to  have  been  opened  in  the  time  of  the  mortgagor, 
and  80  granted,  as  to  that,  an  injunction  and  account.  The  Court  of  Appeal 
came  to  a  different  conclusion  on  the  evidence,  and  dismissed  the  plaintiff's  bill. 
On  appeal  to  this  House,  the  decision  of  the  Court  of  Appeal  was  upheld. 

Where  the  lease  of  a  quarry  reserves,  not  the  payment  of  a  fixed  sum  by  way 
of  rent,  but  a  share  of  the  profits  of  the  quarry,  it  is  to  be  treated  as  opened  for 
purposes  of  commerce. 

The  consideration  of  the  facts  and  circumstances  of  a  case  must  determine  on 
whom  the  oniM  lies  of  showing  when  a  mine  or  quarry  was  first  ooened  for 
working. 

A  mine  or  quarry  opened  by  the  owner  of  the  inheritance,  while  he  was  still 
in  actual  possession,  even  though  after  the  date  of  the  mortgage,  will  inure  for 
the  benefit  of  the  mortgagee. 

Per  Lord  Selborne  :  Where  a  mine  or  quarry  has  been  opened  for  a  re- 
stricted or  definite  purpose,  as  to  obtain  fuel,  or  the  means  of  repairing  a  par- 
ticular tenement  on  the  estate,  that  would  not  give  a  tenant  for  life,  or  other 
owner  of  an  estate  impeachable  for  waste,  the  right  to  work  it  for  commercial 
profit.  But  when  a  mine  or  quarry  is  once  open,  so  that  the  owner  of  an  estate 
impeachable  for  waste  may  work  it,  the  sinking  of  a  new  pit  on  the  same  vein, 
or  the  breaking  ground  in  a  new  plaoe  on  the  same  rock,  is  not,  necessarily,  the 
opening  of  a  new  mine  or  a  new  quarry. 

Robert  Bulkeley  Owen  was  the  owner  in  fee  simple  of  a  farm 
called  Fridd-Issan,  in  the  parish  of  Beddgelert  in  North 
*  Wales.  He  borrowed  a  sum  of  £400  from  Morris  Griffith  [*  455] 
in  1802,  and  by  way  of  mortgage  security  demised  the  farm 
to  Griffith,  his  executors,  administrators,  and  assigns,  for  a  term  of 
five  hundred  years,  at  a  peppercorn  rent.  He  afterwards  borrowed 
a  further  sum  of  £800,  and  in  September,  1810,  charged  the  same 
with  interest  upon  the  mortgaged  premises.  The  premises  were 
situated  partly  at  the  base,  and  partly  on  the  slopes  of  Snowdon. 
In  1808  Owen  granted  a  lease  of  the  farm,  and  in  1811  a  lease  for 
twenty-one  years  of  the  mines  and  slate  quarries  under  the  whole 
property.  In  1816  Griffith  brought  an  action  of  ejectment  to 
obtain  possession  of  the  farm,  and  recovered  judgment  in  the  action 


734  HIKES  AND  MINERALS. 

Ho.  25. — ^Eliai  v.  flnowdim  Slate  Qnarrios  Co.,  4  App.  Cm.  456,  456. 

in  1818.  He  also  instituted  a  suit  for  foreclosure,  and  obtained  a 
decree  thereon  in  1820.  He  thus  became  possessed  of  the  whole 
property,  and  in  1830  seemed  to  have  made  an  attempt  to  work 
for  the  slate.  He  died  in  1835,  and  the  property  passed  to  his 
widow,  to  his  son  John  Griffith,  and  then  to  his  son  William 
Morris  Griffith,  who  was  originally  a  defendant  in  this  suit.  In 
May,  1847,  John  Griffith  made  a  lease  of  the  farm  in  question  with 
liberty  to  search  for  and  get  slate,  &c.,  under  the  said  tenement, 
and  this  lease  passed  to  the  "  Snowdon  Slate  Quarries  Company," 
and  on  the  winding-up  of  that  company,  was  sold  by  the  liquidator 
to  the  "West  Snowdon  Slate  Company."  In  the  course  of  the 
proceedings  in  this  sale,  namely,  in  December,  1872,  an  objection 
to  the  title  was  taken,  and  in  consequence  a  letter  was  written 
to  the  present  appellants,  —  the  persons  who  appeared  to  be  the 
reversioners  after  the  expiration  of  the  term  of  five  hundred  years, 
—  and  they,  in  May,  1873,  filed  their  bill  against  W.  M.  Griffith 
complaining  of  the  working  of  the  quarries  as  waste,  and  asking 
for  an  injunction  to  restrain  further  working,  and  for  accounts,  and 
for  further  relief.  The  bill  was  afterwards  amended  by  making 
the  two  companies  parties  to  the  suit. 

The  various  defendants  put  in  answers  which  in  substance  set 
forth  the  facts  already  stated,  and  relied  on  them  for  a  defence, 
and  they  also  alleged  that  the  quarries  were  open  working  quarries 
upon  the  lands  comprised  in  the  demise  and  mortgage  of  1802. 
Whether  the  upper  quarry  was  so,  was  the  matter  really  in  dispute.- 
and  on  that  a  great  deal  of  evidence  was  given.     Its  effect  is  fully 

stated  in  the  judgments. 
[*  456]  *  Vice-Chancellor  Hall  was  of  opinion  that  the  lower 
quarry  had  been  open  before  the  demise  of  1802,  but  "  that 
neither  the  mortgagor  nor  his  lessees,  while  he  remained  in  posses- 
sion, opened  a  quarry  elsewhere  on  the  mortgaged  premises,"  and 
therefore,  as  to  the  upper  quarry,  he  granted  the  prayer  of  the  bill  for 
an  injunction  and  account,  but  dismissed  it  as  to  the  lower  quarry.^ 
On  appeal  the  Lords  Justices  came  to  a  different  conclusion  on  the 
evidence,  reversed  the  decision,  and  ordered  the  bill  to  be  dismissed 
with  costs  (8  Ch.  D.  531).     This  appeal  was  then  brought. 

Mr.  Osborne  Morgan,  Q.  C,  and  Mr.  Pord  North,  Q.  C.  (Mr. 
Edward  EoUand  was  with  them),  for  the  appellants :  — 

They  stated  the  facts  of  the  case  with  great  minuteness,  and 

1  Norn.  Elias  v.  Griffith,  8  Ch.  D.  521,  where  the  facts  are  fully  detailed. 


B.  C.  VOL.  XVII.]  SECT.  V.  —  LIMITED  OWNERS.  735 

Ho.  25.  — Eliaa  v.  Snowdon  fOAte  QuurriM  Co.,  4  App.  Cas.  456,  457. 

insisted  that  there  was  no  evidence  to  warrant  the  conclusion  that 
the  owner  of  the  inheritance  ever  worked  both  mines  or  quarries 
with  a  view  to  profit  —  or  had  ever  authorised  them  to  be  so 
worked  —  and  especially  it  was  clear  that  there  had  not  been,  by 
him,  such  working  of  the  upper  quarry  before  the  mortgage  demise. 
Assuming  the  fact  to  be  so,  then  the  conduct  of  the  respondents 
in  working  both  of  them  was  without  warranty  in  law.  They 
were  mere  termors,  and  as  such  their  working  the  mines  or  quarries 
amounted  to  voluntary  waste,  from  the  committing  of  which  the 
Court  would,  upon  equitable  principles,  restrain  them.  There  had 
not  been  any  laches  here,  and  the  appellants  proceeded  as  soon  as 
they  were  aware  of  their  rights.  Moyle  v.  Mayle^  Owen,  66 ;  Cop- 
pinger  v.  Gfuhbins,  3  J.  &  Lat  397 ;  Jhircdl  v.  Nash,  1  Jo.  Ir.  Eq. 
Eep.  625, 2  id.  117 ;  MaTisfield  v.  Crawford,  9  Ir.  Eq.  Rep.  271 ;  Viner 
V.  Vaughan,  2  Beav.  466 ;  Jegon  v.  Vivian,  L.  E.  6  Ch.  742  (No.  36, 
post) ;  Countess  of  Salop  v.  Crompton,  Cro.  Eliz.  779,  784 ;  Goodson  v. 
Richardson,  L.  R  9  Ch.  221 ;  Whitfield  v.  Bewit,  2  P.  Wms.  240 ; 
see  also  3  P.  Wms.  267 ;  Bays  v.  Bird,  2  P.  Wms.  397 ;  Sawnders's 
Case,  5  Co.  Eep.  12  (p.  723,  ante) ;  Clegg  v.  Rowland,  L.  E.  2  Eq. 
160  (p.  725,  ante)  ;  Vyvyan  v.  Vyvyan,  30  Beav.  65.  4  D.  F.  &  J. 
183 ;  Browne  v.  McClinlock,  L,  E.  6  H.  L.  456,  were  cited. 

*Mr.  Dickinson,  Q.  C,  and  Mr.  Bradford,  for  the  [*457] 
Snowdon  Slate  Quarries  Company. 

Mr.  Home  Payne,  and  Mr.  C.  H.  Turner,  for  the  West  Snowdon 
Slate  Company. 

Mr.  Dickinson  and  Mr.  Home  Payne  addressed  the  House :  — 

It  was  a  maxim  of  the  law  of  England  to  give  effect  to  what  had 
been  done  for  a  series  of  years,  and  done  with  the  knowledge  of 
those  who  had  the  power,  if  they  had  the  will,  to  prevent  it,  but 
who  allowed  it  to  be  done  without  offering  the  least  objection  to  it. 
That  had  been  the  case  here,  and  the  present  claim  of  the  plaintiffs 
was  therefore  answered. 

The  evidence  here  was  sufficient  to  satisfy  the  Judges  of  the  Court 
of  Appeal  that  both  quarries  were  open  before  the  respondents 
went  into  possession  of  the  premises,  and  they  were  therefore 
entitled  to  work  them. 

The  cases  cited  on  the  other  side  were  commented  on,  and  the 
following  were  also  referred  to :  Gibson  v.  Doeg,  2  H.  &  N.  615 ; 
Bulley  V.  Bulky,  L.  R  9  Ch.  739 ;  Wolfe  v.  Birch,  L  E.  9  Eq. 
683;  Clavering  v.   Clavering,  2  P.  Wms.  388. 


736  MINES  AND  MINEBALS. 


Ho.  25.  —  EliM  V.  Snowdon  Slate  Qvmmet  Co.,  4  App.  Cas.  457,  45S. 

Mr.  Osborne  Morgan  replied. 

The  Lord  Chancellor  (Earl  Cairns)  :  — 

My  Lords,  the  argument  of  this  case  has  occupied  at  your  Lord- 
ships* bar  a  considerable  time,  but  the  result  of  that  argument  is 
that  every  fact  in  the  case  has,  I  think,  been  brought  with  great 
clearness  before  your  Lordships'  attention,  and  I  shall  be  able  in  a 
very  short  space  to  submit  to  your  Lordships  the  view  which  I  at 
least  take  of  the  case  now  presented  to  us. 

My  Lords,  I  will  in  the  first  place  remind  you  of  the  mortgage 
title.  That  starts  in  the  year  1802,  when  the  mortgage  was  made 
by  Owen,  the  then  owner  of  the  inheritance,  to  Griffith,  for  five 
hundred  years,  and  I  pass  over  as  immaterial  the  further  charge 
which  took  place  a  few  years  afterwards.  From  1816  to  1820  pro- 
ceedings were  going  on  for  foreclosure  of  this  mortgage. 
[*458]  In  *the  course  of  those  proceedings,  namely,  in  1818, 
Griffith  appears  to  have  entered  into  possession,  and  the 
proceedings  were  terminated  by  complete  foreclosure  in  1820.  From 
that  we  pass  on,  still  only  dealing  with  the  mortgage  title,  till  1847, 
when  a  lease  was  made  by  a  son  of  this  Griffith  to  three  persons 
for  the  purpose  of  adventuring  in,  and  continuing  to  work,  mines 
or  quarries  upon  the  property,  and  under  that  lease  the  present 
respondents  claim. 

Now,  turning  on  the  other  hand  to  the  title  to  the  inheritance, 
that  continued  in  the  mortgagor  Owen  up  to  the  time  of  his  death 
in  1837;  therefore  from  the  complete  foreclosure  in  1820,  for 
seventeen  years,  he  (the  mortgagor)  was  in  existence  and  was  the 
owner  of  the  inheritance  of  the  property  in  fee  simple.  He  died 
in  1837,  and  was  succeeded  by  Eice  Owen,  his  heir,  who  continued 
in  life  until  1860,  a  period  of  forty  years  from  the  foreclosure. 
When  he  died  in  1860,  the  inheritance  fell  to  one  of  the  present 
appellants. 

That  being  the  title  to  the  mortgage  term  on  the  one  hand  and 
to  the  fee  on  the  other,  let  me  remind  your  Lordships  in  a  few 
words  of  the  actual  facts  which  are  proved  with  regard  to  the 
opening  of  the  slate  quarries  upon  the  property.  And  I  must  first 
observe  with  regard  to  these  facts,  that,  whatever  may  be  their 
proper  description,  there  is  no  controversy  as  to  them,  because  they 
are  facts  which  come  from  the  witnesses  on  the  one  side  only,  in 
their  evidence  in  chief,  and  in  their  cross-examination;  and  al- 
though criticisms  may  be  made  as  to  the  limited  extent  to  which 


E.  0.  VOL.  XVn.]  SECT,  V.  —  LIMITED  OWNEBS.  737 

Ho.  25.  —  Eliaa  ▼.  Snowdon  Blatd  QuniM  Co.,  4  App.  Cm.  458,  459. 

these  witnesses  speak,  there  is  nothing  which  shakes  their  credibil- 
ity or  their  accuracy  so  far  as  they  do  speak. 

My  Lords,  it  is  sufficient  for  my  present  purpose  that  I  should 
state  what  I  am  about  to  state  as  to  their  evidence.  Their 
evidence  appears  to  me  to  amount  to  this,  that  in  1812  and  1814 
(upon  the  evidence  of  witnesses  old  enough  to  remember  those 
years)  there  were  open  quarry  holes  or  quarries,  whichever  may 
be  the  proper  word,  in  the  locus  in  quo,  that  is  to  say,  the  land 
subject  to  this  mortgage.  It  is  a  question  upon  the  evidence,  what 
the  size  of  the  openings  was,  but  that  has  been  left  as  it  is  upon 
the  evidence  to  which  I  have  already  referred,  the  evidence  of  one 
side.  No  evidence  has  been  contributed  from  witnesses 
equally  old,  or  from  *  any  witnesses  at  all,  upon  the  other  [*  459] 
side.  The  witnesses,  it  is  true,  do  not  pretend  to  speak 
with  certainty  upon  the  exact  size  of  the  openings,  but  in  a  mineral 
country  where  the  terms  may  be  supposed  to  be  well  known  and 
persons  accustomed  to  use  the  terms  proper  to  describe  what 
actually  is  in  existence,  these  witnesses  all,  without  exception, 
speak  of  that  which  existed  upon  the  property  as  what  they  would 
describe  as  open  workings,  and  they  are  careful  to  say  that  they 
were  workings  which  for  some  purpose  were  actually  worked ;  for 
they  saw  certain  slates  taken  out  of  them  and  pressed  and  laid  on 
one  side,  and  the  dibris  in  other  places,  which  would  show  that 
slates  had  been  taken  out  and  worked.  That  evidence  is  added  to 
by  the  evidence  of  another  witness  who  speaks  with  very  consid- 
erable accuracy  of  what  he  saw  in  1818.  What  he  saw  then  was 
working  of  the  same  description ;  it  may  have  occurred  between 
1812  and  1818,  or  it  may  have  been  the  same  working  which  the 
other  (the  older)  witnesses  saw  in  1812.  Then  passing  on  to 
1825,  or  thereabouts,  your  Lordships  have  clear  testimony  of 
working  of  a  very  much  more  extensive  description  at  that  time. 
I  say  "  more  extensive,"  because  it  appears  to  me  the  witnesses 
agree  in  saying  it  was  carried  on  by  a  number  of  persons  who  were 
acting  upon  a  system,  and  for  some  purpose  or  other,  who  were 
acting  as  a  company,  or  as  persons  engaged  in  a  common  under- 
taking, for  the  purpose  of  either  trying  or  carrying  on  the  works. 

Now  that  being  the  character  of  the  evidence  which  is  the  only 
evidence  in  the  case,  of  course  it  would  have  been  perfectly  com- 
petent for  any  person  interested  to  show  that  the  working,  such  as 
I  have  described  it  to  be,  took  place  without  the  knowledge,  and 
VOL.  XVII.  —  47 


738  MINES  AND   MINERALS. 


Ho.  26.  —  Eliai  ▼.  Snowdon  8Ute  QvaxriM  Co.,  4  App.  Cas.  409,  400. 

without  EDything  that  could  be  called  consent  or  authority  on  the 
part  of  the  owner  of  the  inheritance.  Nay  more,  it  might  have 
been  shown  that  the  workings  were  actually  workings  by  way  of 
trespass,  and  had  not  even  the  consent  of  the  termor,  the  mort- 
gagee ;  or  it  might  further  have  been  shown  that  those  workings 
were  not  workings  of  the  ordinary  kind  for  the  purpose  of  com- 
merce, for  the  purpose  of  disposing  of  that  which  was  gained; 
but  were  workings  for  what  I  may  call  home  consumption,  for  some 
ordinary  purpose  with  reference  to  the  farm  on  which  the  work- 
ings took  place.  Any  one  of  those  things  might  have  been 
[*  460]  shown,  but  no  *  one  of  them'has  been  shown  in  opposition 
to  the  evidence  which  I  have  referred  to,  and  that  evidence 
stands,  valeat  quantum,  without  any  counter  evidence  for  the  pur- 
pose of  putting  a  complexion  upon  the  character  of  the  working 
which  I  have  mentioned. 

That  being  the  state  of  things,  then,  we  proceed  a  step  farther, 
and  your  Lordships  find  this  important  element  introduced  into 
the  case.  It  is  proved  without  contradiction,  and  even  I  may  say 
without  controversy,  that  in  1811,  after  the  mortgage  had  been 
made,  —  for  that  was  made  in  1802, — but  while  the  mortgagor  was 
still  in  possession  of  the  property,  and  was  representing  the  prop- 
erty, and  was  for  all  practical  purposes,  in  accordance  with  the 
sense  in  which  the  word  is  commonly  used,  in  ownership  of  the 
property,  living  upon,  at  all  events  exercising  the  ordinary  acts  of 
ownership  over,  the  property,  he  made  a  lease  covering  the  land 
subject  to  the  mortgage.  I  pass  by  the  lease  of  1807.  What  is 
stated  in  that  lease  of  1811  is,  that  it  was  a  lease  from  Robert 
Bulkeley  Owen  to  Eichard  Owen,  Hugh  Hughes,  and  Bichard 
Henry  Davys,  of  slate  rocks  and  beds  of  slate,  and  all  mines,  &c.» 
from  that  date  for  twenty-one  years  at  the  farm  of  "  one-fourteenth 
share  of  clear  profits ; "  and  that  lease  is  recognised  as  subsisting 
in  1815,  because  in  certain  conditions  of  sale  of  the  property  adver- 
tised in  that  year,  it  was  spoken  of  as  a  lease  to  which  the  prop- 
erty was  subject. 

That  lease  being  therefore  established  as  having  been  made  by 
the  owner  of  the  inheritance  at  the  time  that  he  was  in  possession, 
what  appears  to  me  to  result  from  that  fact  is  this.  It  appears  to 
me  that,  just  as  any  quarry  opened  by  the  owner  of  the  inheritance 
himself,  even  although  opened  after  the  date  of  the  mortgage,  — 
provided  it  had  been  opened  while  he  still  was  in  possession,  and 


B.  C.  VOL.  XVIL]       sect.  V.  —  LIMITED  OWNERS.  739 

Vo.  25.  —  £Ius  ▼.  flnowdon  Slate  QoarriM  Co.,  4  App.  Gat.  460,  461. 

while  he  still  was  acting  as  the  owner  of  the  property, — just  as 
any  quarry  opened  by  him  would  inure  to  the  benefit  of  the 
mortgagee  after  he  took  possession  and  foreclosed,  and  would 
entitle  him  to  call  that  an  opened  quarry,  and  to  go  on  and  work 
it  as  a  source  of  profit  arising  from  the  property,  so  also  any 
quarry  opened  by  the  lessees  under  this  lease  of  1811  would  give 
the  same  rights  to  the  mortgagee.  And,  my  Lords,  this  also 
would  flow  from  the  lease  of  1811 ;  it  not  only  would  result  from 
it  that  any  quarry  opened  under  that  lease  upon  any  part 
of  the  property  would  be  *  lawful,  but  it  would  also  stamp  [*  461] 
that  quarry  when  opened  with  a  commercial  character, 
because  the  lease  in  its  nature,  and  in  its  terms,  is  a  lease  for  the 
express  purpose  of  making  money  by  quarrying  as  a  commercial 
operation,  and  the  product,  the  remuneration,  upon  which  the  land- 
lord relies,  is  not  a  fixed  sum  by  way  of  rent,  but  is,  as  it  were,  a 
sum  arising  from  a  partnership  with  those  who  were  to  be  the 
tenants.  He  is  to  have  a  share  of  the  profits  of  the  quarry. 
Therefore,  you  have  it  in  the  clearest  way  that,  provided  it  be 
established  that  any  quarry  was  opened  under  the  powers  of  that 
lease,  that  was  a  quarry  the  opening  of  which  was  rendered  lawful 
by  the  owner  of  the  inheritance,  and  was  stamped  by  him  as  an 
opening  for  the  purpose  of  commerce  on  the  property. 

Then,  my  Lords,  that  being  so,  the  only  question  is,  whether 
these  openings  to  which  I  have  referred,  whether  those  quarries, 
which  I  have  shown  were  commenced  and  carried  on  to  a  certain 
point  at  all  events,  were  quarries  the  opening  of  which  is  to  be 
referred  to  this  lease  of  1811  or  not.  Now,  my  Lords,  there  it  is 
that  it  appears  to  me  to  be  extremely  important  to  consider  upon 
whom  the  onus  in  the  case  lies,  and  I  am  far  from  laying  down  or 
wishing  to  suggest  to  your  Lordships  any  general  rule  with  regard 
to  the  question  of  the  person  upon  whom  in  a  case  of  this  kind  the 
onus  must  lie.  If  the  case  is  recent,  if  there  be  no  lapse  of  time 
or  other  circumstance  to  be  brought  into  consideration,  if  you  have 
simply  a  case  of  a  term  of  years  granted,  and  the  landlord  comes 
forward  and  says,  "  I  complain  that  my  termor  is  working  a  quarry 
upon  his  land,"  in  that  state  of  things  it  may  well  be  that  it  is  for 
the  tenant  to  answer,  and  to  show  that  quarry  was  opened  at  the 
time  when  he  entered  into  possession.  But  it  may  be  very  dif- 
ferent when  a  long  lapse  of  time  has  occurred,  and  especially  it 
may  be  different,  and  it  appears  to  me  it  must  be  different,  where 


740  MINES   AND  MINERALS. 

Ho.  S6.  —  £Ius  ▼.  Snowdon  8Ute  QnaniM  Co.,  4  App.  Cas.  461,  46S. 

your  Lordships  have  the  singular  fact  which  I  have  already 
referred  to  as  existing  in  the  present  case,  namely,  that  from  1820 
to  1860,  at  all  events,  for  a  period  of  forty  years,  there  was  the 
owner  of  the  inheritance,  of  full  age,  competent  to  act,  and  to  bind 
himself,  and  living  more  or  less  in  the  neighbourhood  of  the  land 
in  question,  and  that,  during  the  whole  of  that  time, 
[*  462]  that  owner  of  *  the  inheritance  made  no  complaint  what- 
soever as  regards  the  opening  of  these  quarries,  or  the 
existence  of  these  quarries,  or  that  which  was  done  with  these 
quarries  at  the  dates  to  which  I  have  referred. 

Now,  my  Lords,  that  being  so,  and  it  being  the  case  that  your 
Lordships  are  called  upon  after  this  lapse  of  time  to  examine  into 
acts  which  were  done  between  the  year  1811  and  the  year,  we  will 
say,  1825,  and  having  it  proved  in  evidence  that  those  acts  were 
done,  and  having  before  you  a  document  which  would  render  those 
acts  lawful,  and  would  make  it  a  right  and  proper  thing  that  those 
acts  should  have  been  done,  and  being  called  upon  to  say  what 
was  the  power  or  the  authority  under  which  the  acts  were  done,  it 
appears  to  me  that  the  presumption  will  be  and  ought  to  be,  by 
any  Court,  that  they  were  done  under  that  authority  which  would 
render  them  lawful,  unless  those  who  are  in  the  position  of  the 
appellants  in  the  present  case  will  come  forward  and  can  satisfy 
you  by  proper  and  apt  evidence,  that  the  acts  were  done,  not  under 
the  authority  which  would  render  them  lawful,  but  were  done 
without  authority  and  without  any  connection  with  the  lease  of 
181L 

My  Lords,  there  has  been  no  attempt  on  the  part  of  the  appel- 
lants to  dissever  the  acts  which  were  done,  from  the  lease  of  1811. 
It  appears  to  me  that  the  oniis  lay  upon  them  to  do  so.  It  appears 
to  me  that  if  there  was  any  ignorance  on  their  part  of  the  lease 
of  1811,  when  it  became  known  to  them,  they  ought  to  have 
been  able  to  disconnect  the  acts  from  the  lease,  and  might  have 
had  time  accorded  to  them  by  the  Court  for  the  purpose  of  pro- 
ducing evidence  upon  the  subject.  They  have  not  produced  any 
evidence  of  the  kind,  and  in  that  state  of  things  it  appears  to  me 
that  the  legitimate  and  proper  presumption  for  the  Court  to  make 
is,  that  it  was  the  lease  of  1811  which  led  to  and  gave  authority 
and  legality  to  the  acts  done  in  the  shape  of  quarrying  under  the 
property  in  question;  and  that  that  presumption  is  as  strongly 
fortified  as  any  presumption  can  be,  by  the  further  circumstance 


B.  C.  VOL.  XVII.]        SBCT.  V.  —  LIMITED  OWNEBS.  741 

Ho.  25.  —  Eliaa  ▼.  Snowdoa  fOatd  QuniM  Co.,  4  App.  Caa.  462,  463. 

that  for  forty  years  no  complaint  was  made  of  these  acts  by  the 
owner  of  the  inheritance,  who  might  have  complained  of  them. 

My  Lords,   under  these  circumstances,  without  going 
further  *  into  the  details  of  the  case,  it  appears  to  me  that  [*  463] 
the  conclusion  of  the  Court  of  Appeal  was  correct ;  and  I 
submit  to  your  Lordships  that  this  appeal  should  be  dismissed 
with  costs. 

Lord  Selborne  :  — 

My  Lords,  I  am  of  the  same  opinion. 

The  facts  of  the  present  case,  which  admit  of  no  controversy, 
are  that  when  the  respondents*  predecessor  in  title  entered  into  pos- 
session, foreclosed  his  mortgage,  and  became  the  absolute  owner  of 
the  term  of  five  hundred  years  created  in  1802,  the  whole  of  this 
property  was  subject  to  a  lease  granted  by  the  reversioner  while  in 
possession,  by  which  it  was  contemplated  and  intended  that  slate 
quarries  should  be  worked  in  it,  —  without  distinction  of  the  upper 
from  the  lower  part,  —  for  commercial  purposes;  that  the  lower 
quarry  was  then  confessedly  open;  and  that  the  upper  quarry, 
which  alone  is  now  in  question,  has  been  worked,  to  a  greater  or 
less  extent,  for  or  with  a  view  to  commercial  purposes,  from  time 
to  time  since  that  date,  as  well  during  the  continuance  of  the  term 
granted  by  that  lesse,  as  afterwards;  the  earliest  date  of  such 
working  which  is  fixed  at  all  distinctly  by  the  evidence  being  in 
or  about  1826,  forty-seven  years  before  the  filing  of  the  bill. 

There  are  many  circumstances,  more  or  less  material  to  a  correct 
appreciation  of  these  facts,  of  which  neither  of  the  parties  to  the 
present  controversy  has  given  —  perhaps  at  this  distance  of  time 
neither  of  them  was  able  to  give  —  any  evidence.  The  existence 
of  the  lease  of  1811  is  proved  by  notes  or  other  statements  in  the 
nature  of  admissions  made  by  the  solicitor  who  in  1815  represented 
the  predecessor  in  title  of  the  appellant;  but  the  lease  is  not 
itself  in  evidence,  and  any  light  which  might  have  been  derived 
from  a  knowledge  of  its  precise  contents  is  wanting.  It  seems  to 
me  to  be  uncertain,  upon  the  whole  evidence,  whether  Griffith,  the 
mortgagee,  under  whom  the  respondents  claim,  was  a  party  to  it 
or  not.  From  what  had  taken  place  when  an  earlier  lease  of  the 
lower  quarry  was  contemplated  (if  not  granted)  in  1808,  from  the 
relations  (so  far  as  they  appear)  between  Mr.  Williams,  who  pre- 
pared that  earlier  lease  as  solicitor  for  both  the  mortgagor  and 
the   mortgagee,  and   Mr.  Pritchard,  who  prepared  the  lease  of 


742  MINES   AND  MINERALS. 

Ho.  25.  —  Elias  ▼.  Snowdon  Slate  Quarriei  Co.,  4  App.  Cm.  463,  464. 

1811, — and  from  the  fact  that  two  of  the  lessees  of  1811 
[*  464]  were  also  *  two  of  the  intended  lessees  of  1808,  —  there  is, 

I  think,  a  strong  probability  that  the  mortgagee  would 
have  been  made  a  consenting  party  to  it.  But,  on  the  other  hand, 
it  seems  clear  that  in  1815  this  lease  was  not  among  the  docu- 
ments of  title  then  in  the  possession  of  Mr.  Williams,  of  which 
an  abstract  was  furnished  by  him  to  Mr.  Pritchard ;  and  in  Mr. 
Pritchard's  notes  of  that  date  it  is  described  as  a  lease  from  Eobert 
Bulkeley  Owen  to  Eichard  Owen,  Hugh  Hughes,  and  Richard 
Henry  Davys,  not  mentioning  Griffith.  Whether  Griffith  was  a 
party  to  it  or  not,  any  workings  proved  to  have  taken  place  under 
that  lease  would,  I  think,  have  been  decisive  of  the  present  con- 
troversy ;  and,  if  he  was  a  party  to  it,  its  mere  existence  when  his 
title  became  absolute  would  have  been  enough,  in  my  opinion,  to 
make  the  quarry  now  in  question  then  open  as  between  him  and 
the  reversioner.  The  working  of  both  quarries,  in  or  about  1826, 
by  a  company  locally  connected  with  Carnarvon,  under  a  quarry 
agent  from  Maennturog,  is  left  unexplained,  unless  it  ought  to  be 
referred  to  that  lease.  On  all  these  points  the  questions  of  onus 
probandi  and  of  the  presumptions  of  fact  (if  any)  which,  under 
such  circumstances  and  after  such  lapse  of  time,  ought  to  be  made, 
become  highly  important. 

It  is  not,  however,  without  aid  from  some  other  facts,  besides 
those  already  mentioned,  that  these  questions  have  to  be  deter- 
mined. There  is  the  evidence  of  several  old  witnesses  who  prove 
that  there  were,  before  the  lease  of  1811  was  granted,  two  pits  (or, 
as  they  call  them,  "  holes  "  ),  already  opened  within  a  short  dis- 
tance of  the  present  works  of  the  upper  quarry,  from  which  some 
slates  had  been  obtained,  and  dressed  or  prepared  for  some  kind 
of  use.  The  size  of  these  pits  or  holes  is  a  point  on  which  the 
recollection  of  those  witnesses  did  not  enable  them  to  speak ;  and 
it  was  insisted  by  the  appellants*  counsel  that  they  must  have 
been  of  very  small  extent ;  and  also  (there  being  at  that  time  no 
road  to  the  upper  quarry),  that  they  must  have  been  worked  with 
a  view,  either  to  a  mere  search  or  trial  of  the  ground,  or  to  some 
repairs  of  buildings,  or  roofs  of  buildings,  on  the  adjoining  farm, 
and  not  for  any  purpose  of  commercial  profit.  The  indistinctness 
of  this  evidence  (considering  the  remoteness  of  the  time,  and 
the  age  of  the  witnesses)  is  not  at  all  surprising ;  but  it  proves 
what  is,  in  ray  opinion,  sufficient  when  considered  in  connection 


B.  C.  VOL.  XVII.]       SECT.  V.  —  LIMITED  OWNEBS.  743 

Ho.  26.  —  Eliai  ▼.  Soowdon  8Ute  QnaniM  Co.,  4  App.  Gu.  466,  466. 

i¥ith  the  lease  of  *  1811  and  the  other  facts  of  the  case,  [*  465] 
to  determine  the  question  of  onus  probandi,  as  to  all  that 
afterwards  took  place,  adversely  to  the  appellants.  It  seems  to 
be  the  most  reasonable  and  probable  conclusion  that  those  pits 
or  holes  were  opened  with  a  view  to  such  workings  as  those  which 
were  at  the  same  time  actually  going  on  in  the  lower  quarry,  and 
which  were  authorised  throughout  the  whole  estate  by  the  lease 
of  1811,  although  they  may  have  been  in  some  sense  experimental^ 
and  though  further  works,  such  as  roads,  were  undoubtedly  req- 
uisite to  enable  any  slates  quarried  from  them  to  be  profitably 
brought  to  market.  More  than  this  does  not  appear  to  me  to  have 
been  necessary  to  open,  de  facto,  before  the  lease  of  1811  was 
granted,  a  quarry,  the  working  of  which  might  lawfully  be  con- 
tinued, not  by  the  lessees  only,  but  also  by  the  respondents'  pred- 
ecessor in  title,  who,  on  the  foreclosure,  succeeded  to  all  the 
rights  of  the  lessor.  I  agree  with  the  Court  of  Appeal  in  thinking 
that,  under  the  circumstances  of  this  case,  all  reasonable  presump- 
tions of  fact,  not  inconsistent  with  what  is  proved  on  either  side, 
ought  to  be  made  in  favour  of  the  lawfulness  of  what  has  so  long 
been  done. 

Upon  the  questions  of  law  which  were  argued  at  the  bar,  I 
think  it  unnecessary  to  make  more  than  two  remarks.  The  first 
is,  that  I  am  not  at  present  prepared  to  hold  that  there  can  be  no 
such  thing  as  an  open  mine  or  quarry,  which  a  tenant  for  life  or 
other  owner  of  an  estate  impeachable  for  waste  may  work,  unless 
the  produce  of  such  mine  or  quarry  has  been  previously  carried  to 
market  and  sold.  No  doubt,  if  a  mine  or  quarry  has  been  worked 
for  commercial  profit,  that  must  ordinarily  be  decisive  of  the  right 
to  continue  working;  and,  on  the  other  hand,  if  minerals  have 
been  worked  or  used  for  some  definite  and  restricted  purpose  («.  g., 
for  the  purpose  of  fuel  or  repair  to  some  particular  tenements), 
that  would  not,  alone,  give  any  such  right.  But,  if  there  has  been 
a  working  and  use  of  minerals  not  limited  to  any  special  or  re- 
stricted purpose,  I  find  nothing  in  the  older  authorities  to  justify 
the  introduction  of  sale,  as  a  necessary  criterion  of  the  difference 
between  a  mine  or  quarry  which  is,  and  one  which  is  not,  to  be 
considered  open  in  a  legal  sense.  Use,  as  well  as  sale,  is  a  per- 
ception of  profit.  None  of  the  dicta  which  are  to  be  found  in 
some  of  the  more  modem  cases  (each  of  which  turned 
upon  its  own  *  particular  circumstances)  can   have  been  [*466] 


744  MINES  AND   MINERALS. 

Ho.  96.  —  In  re  Kemeyt-Tyntd.     K«iii«yt-Tyiite  ▼.  Keni«yf-Tyiitd,  IMKI,  8  Ch.  811,  SllL 

intended  to  introduce  a  condition  or  qualification  not  previouslj 
known  into  the  law  of  mines. 

The  other  observation  which  I  desire  to  make  is,  that,  when 
a  mine  or  quarry  is  once  open,  so  that  the  owner  of  an  estate 
impeachable  for  waste  may  work  it,  I  do  not  consider  that  the 
sinking  a  new  pit  on  the  same  vein,  or  breaking  ground  in  a  new 
place  on  the  same  rock,  is  necessarily  the  opening  of  a  new  mine 
or  a  new  quarry ;  and  for  this,  authority  is  to  be  found  in  the 
cases,  which  were  cited  at  the  bar,  of  Clavering  v.  Clavering,  2  P. 
Wms.  388.  And  see  Spencer  v.  Scurr,  31  Beav.  334,  and  Millett  v. 
Davey,  31  Beav.  470 ;  Bagot  v.  Bagot,  32  Beav.  509 ;  and  Lord 
Cowley  V.  Wellesley,  35  Beav.  635,  L.  R.  1  Eq.  656. 

Lord  Gordon  entirely  concurred  with  the  observations  of  his 
noble  and  learned  friends,  and  agreed  that  the  judgment  of  the 
Court  below  must  be  a&med. 

Judgment  appealed  against  affirmed,  and  appeal  dismissed 
with  costs. 

Lords'  Journals,  12th  May,  1879. 


In  re  Kemeys-Tynte. 
Kemeys-Tynte  v.  Kemeys-Tynte. 

'  1892,  2  Ch.  211-218  (s.  c.  61  L.  J.  Ch.  377 ;  66  L.  T.  752;  40  W.  R.  423). 

[211]  Mining  Lease.  —  Contract.  —  Tenant  for  lAfe  impoaxShaJtle  for  Waste. — 
SetOed  Land  Act,  1882,  45  tt  46  Viet.,  c  38,  m.  11, 12. 

The  owuer  of  an  estate  contracted  to  lease  coal  to  be  worked  by  instroke 
from  adjoining  mines  in  the  occupation  of  the  intended  lessees.  The  owner  died 
before  his  coal  was  reached  or  the  leases  granted. 

Held,  that  the  tenant  for  life,  under  his  will,  though  impeachable  for  waste, 
was  entitled  to  the  rents  and  royalties. 

Sect.  11  of  the  Settled  Land  Act,  1882,  does  not  apply  to  a  mining  lease 
granted  by  a  tenant  for  life  for  giving  effect  to  a  contract  entered  into  by  a 
predecessor  who  was  absolute  owner. 

This  was  an  originating  summons  to  determine  certain  questions 
arising  upon  the  effect  of  the  will  of  Colonel  Charles  Kemeys 
Kemeys-Tynte,  who  died  on  the  10th  of  January,  1891. 

One  of  the  questions  was  whether  a  tenant  for  life  of 
[*212]  real  estate,  *  impeachable  for  waste,  under  his  will,  was 
entitled  to  the  dead  rents  and  royalties  of  coal  mines. 


B.  C.  VOL.  XVII.]       SECT.  V.  —  LIMITED   OWNERS.  745 

Vo.  96.  —  In  rs  lLnagj^Tjnt&.    Xemsji-Tyiite  t.  Xemeyi-Tyiite,  1898, 8  Ch.  818, 818. 

The  testator  was  (subject  to  certain  incumbrances)  entitled  to 
appoint  and  deal  with  an  estate  called  the  Unsettled  Cefn  Mabley 
Estate,  Glamorganshire,  which  included  the  entirety  of  a  piece  of 
land  (and  the  minerals  thereunder)  ninety-eight  acres  in  extent, 
and  a  moiety  of  other  land  and  the  minerals  thereunder  seventy 
acres  in  extent,  of  the  other  moiety  of  which  the  representatives 
of  the  late  Mr.  Crawshay  Bailey  were  the  owners. 

By  an  agreement  between  the  testator  and  a  colliery  firm  dated 
January,  1885,  and  certain  subsequent  agreements  binding  on  the 
testator,  it  was  contracted  that  the  testator  should  grant  a  mining 
lease  of  the  coal  under  the  ninety-eight  acres  for  a  term  of  sixty 
years  from  the  1st  of  May,  1884,  to  the  Ocean  Coal  Company, 
Limited,  that  he  should  join  with  the  representatives  of  the  late 
Mr.  Crawshay  Bailey  in  granting  a  lease  for  the  same  term  of  the 
coal  under  the  southern  portion  of  the  seventy  acres  to  the  Ocean 
Coal  Company,  and  a  lease  for  the  same  term  of  the  coal  under 
the  northern  portion  of  the  seventy  acres  to  the  Penrhihyber 
Company.  Under  the  lease  of  the  ninety-eight  acres  in  addition 
to  royalties,  a  dead  rent  of  JB280  was  to  be  paid  to  the  testator  after 
the  fifth  year,  and  a  smaller  dead  rent  for  earlier  years.  Under 
each  of  the  other  leases  the  testator  was  to  receive  after  the  fifth 
year  a  moiety  of  £120  a  year  as  dead  rent,  in  addition  to  a  moiety 
of  royalties.  No  surface  rights  were  to  be  given  to  the  lessees ; 
but  the  respective  lessees  were  to  work  the  coal  granted  to  them 
by  means  of  adits  driven  from  adjoining  mines  in  the  occupation 
of  the  respective  lessees. 

The  testator  appointed  the  three  plaintiffs  to  the  summons  execu- 
tors and  original  trustees  of  his  will ;  he  appointed  the  Unsettled 
Cefn  Mabley  Estate,  subject  to  the  charges  affecting  the  same  upon 
trust  out  of  the  rents  and  profits  thereof  to  pay  a  certain  annuity, 
and,  subject  as  aforesaid,  he  declared  that  his  trustees  should  hold 
the  Unsettled  Cefn  Mabley  Estate  in  trust  for  his  eldest  son 
Halswell  Milborne  Kemeys-Tynte  for  life,  with  remainder  in  trust 
for  his  eldest  son  Charles  Theodore  Halswell  Kemeys-Tynte  for 
life,  with  remainder  in  trust  for  the  first  or  other  sons  of  the  latter 
successively  in  tail  male,  with  remainders  over. 

•During  the  testator's  life  the  dead  rent  was  paid  in  re-  [♦213] 
spect  of  all  the  coal,  and  the  testator  received  his  share  of 
the  same.     Since  his  death  his  executors  received  dead  rent.     The 
Penrhihyber  Company  commenced  drift  working  in  their  adjoining 


746  MIKES  AND  MINERALS. 


Vo.  98.  —  In  xe  Kemeys-Tynto.    Xeni^yi-T^te  t.  Xamflyi-Tyiite,  IMS,  8  Gh.  818,  814. 

:mine  with  a  view  to  get  the  coal  under  the  northern  portion  of  the 
seventy  acres,  and  the  Ocean  Coal  Company  commenced  drift 
working  in  their  adjoining  colliery  with  a  view  to  get  the  coal 
agreed  to  be  leased  to  them.  Such  drift  working  had  been  con- 
tinued since  the  testator's  death,  but  in  neither  colliery  had  the 
working  quite  reached  the  coal  under  the  testator's  land. 

The  plaintiffs  to  the  summons  were  the  trustees  of  the  will. 
The  defendants  were  the  equitable  tenant  for  life  in  possession 
under  his  will,  and  persons  interested  in  another  question. 

During  the  testator's  life  a  lease  of  the  coal  under  the  northern 
portion  of  the  seventy  acres  to  the  Penrhihyber  Company  in  ac- 
cordance with  the  agreements  was  duly  executed.  Leases  were 
prepared  of  coal  under  the  ninety-eight  acres,  and  the  southern 
portion  of  the  seventy  acres,  in  accordance  with  the  agreements 
during  the  testator's  lifetime,  but  were  not  executed.  It  was  in- 
tended that  such  leases  should  be  executed  by  the  tenant  for  life 
under  the  testator's  will  under  the  provisions  of  the  Settled  Land 
Acts,  1882  to  1890. 

The  question  for  the  decision  of  the  Court  as  to  the  coal  was, 
what  parts  of  the  dead  rents  and  royalties  payable  under  the 
leases  already  granted  or  intended  to  be  granted  ought  to  be  paid 
to  the  defendant  Halswell  Milborne  Kemeys-Tynte  as  equitable 
tenant  for  life.  ' 

Everitt,  Q.  C,  and  Kingdon,  for  the  trustees :  — 

The  tenant  for  life  can  under  sect.  12,  sub-sect.  1,  of  the  Settled 
Land  Act,  1882,  or  under  sect.  6  of  the  Act  of  1890,  carry  out  the 
contract  made  by  the  testator,  though  he  could  not  have  granted  a 
lease  himself  in  such  wide  terms. 

[North,  J.  — Sect.  6  of  the  Act  of  1890  does  not  apply  to 
leases.] 

But  he  is  not  entitled  to  the  whole  rents  and  royalties  as  part 
of  the  income  in  cases  where  a  lease  either  was  or  was  not 
[*  214]  granted  *  by  the  testator.  The  test  is  whether  the  mine 
was  opened  in  the  life  of  the  testator ;  no  mine  has  been 
opened  here  even  now.  Stoughton  v.  Leigh,  1  Taunt  402,  410  (11 
■R.  R  810);  Elias  v.  Snowdon  Slate  Quarries  Company,  4  App.  Cas. 
454  (p.  732,  ante) ;  DicTcin  v.  Earner,  1  Dr.  &  Sm.  284. 

The  intended  lease  when  granted  by  the  tenant  for  life  will 
come  into  operation  under  the  Settled  Land  Act,  1882 ;  therefore 
the  provisions  of  sect.  11,  which  are  not  limited  in  terms,  apply, 


JL  C.  VOL.  XVII.]  SECT.  V.  —  LIMITED  OWNERS.  747 

JTo.  28.  —  In  N  Xemeya-Tynto.    Xemeys-Tynta  y.  Kemeyi-Tyiita,  189S,  8  Gh.  214, 215. 

and  the  tenant  for  life  impeachable  for  waste  will  be  entitled  only 
to  one-fourth  of  the  rent  and  royalties. 

Cozens-Hardy,  Q.  C,  and  Bramwell  Davis,  for  the  defendants :  — 

The  mines  are  being  and  are  to  be  worked  under  a  contract 
made  by  the  testator ;  the  rents  and  royalties  are  payable  under 
that  contract,  and  have  by  him,  therefore,  been  impressed  with 
the  character  of  income,  and  belong  to  the  tenant  for  life.  Camp^ 
bell  V.  Wardlaw,  8  App.  Gas.  641,  649,  655.  Stoicghton  v.  Leigh  is 
an  authority  in  favour  of  the  tenant  for  life,  showing  that  the 
i^idow  in  that  case,  not  being  dowable  out  of  the  minerals  in 
lease,  took  her  share  of  the  rent  and  royalties  as  incident  to  the 
reversion. 

As  to  the  point  on  sect.  11  of  the  Settled  Land  Act,  1882  — 

[North,  J.  —  I  do  not  wish  to  hear  you  on  that.  I  think  that 
the  leases,  when  granted,  will  be  in  exactly  the  same  position  as 
if  they  had  been  granted  by  the  predecessor,  who  made  the  con- 
tract himself.] 

Everitt,  in  reply. 

North,  J.  (after  stating  the  facts  and  reading  sect.  12,  sub-sect. 
1,  of  the  Settled  Land  Act,  1882,  continued):  — 

I  have  not  examined  the  exact  terms  of  the  contract ;  but,  as- 
suming for  this  purpose  that  it  did  contain  something  that  could 
not  have  been  inserted  in  a  lease  made  by  a  tenant  for  life  under 
the  Settled  Land  Act,  I  am  of  opinion  that  the  tenant  for  life  can 
now  grant  a  lease  with  such  terms  and  having  exactly  the 
same  eflfect  as  if  it  had  been  granted  by  the  testator  *in  [*215] 
all  respects,  a  valid  contract  having  been  made  to  that 
effect  by  the  settlor  who  was  owner  in  fee. 

The  question  then  is,  What  is  the  effect  of  such  lease  under 
^vhich  the  tenant  was  to  have  had  the  right  to  possession  some 
time  before  the  testator  died,  and  a  dead  rent  and  royalties  were 
to  be  paid?  The  tenants  have  had  the  benefit  of  the  intended 
leases  for  some  time,  and,  as  matter  of  fact,  have  paid  dead  rent ; 
"but,  by  reason  that  the  mines  were  to  be  worked  by  instroke, 
though  the  operation  of  tunnelling  has  proceeded  continuously, 
the  workings  have  not  yet  reached  the  confines  of  the  testator's 
property.  In  that  sense  the  mines  are  not  yet  opened.  The 
testator  received  dead  rent,  and  since  his  death  the  trustees  have 
received  dead  rent;  and  there  will  shortly  be  royalties  payable 
in  addition.     Who  is  entitled  to   these  sums  ?    In  my  opinion 


748  MINES  AND  MINERALS. 


Vo.  96.  —  In  xe  Xeni^yi-Tyiito.    IL&agj^TyikU  t.  Xamflyi-Tyate,  1808,  8  Ch.  815,  816. 

the  tenant  for  life  is  entitled  to  the  whole  of  them.  If,  the  day 
before  the  testator's  death,  the  coal  had  been  reached,  it  is  con- 
ceded that  the  tenant  for  life  would  have  been  entitled  to  the 
whole  rent  and  royalties ;  and  what  difference  can  it  make  in 
principle  whether  the  coal  was  reached  a  day  before  or  a  day 
after  the  testator  died?  The  leases  were  created  by  the  act  of 
the  testator,  who  was  owner  in  fee,  and  whatever  he  would  have 
taken  as  income,  in  my  opinion,  the  person  who  has  a  right  to 
the  income  is  entitled  to  receive,  including  the  dead  rent  and 
royalties  accruing  during  his  life  tenancy. 

I  do  not  wish  to  multiply  references  to  authorities  when  there 
are  so  many  in  the  books.  One  such  case  is  that  of  Daly  v. 
Beckett,  24  Beav.  114.  There  an  estate  with  the  mines  and  min- 
erals was  settled,  and  power  was  given  to  the  trustees  to  demise 
the  hereditaments,  and  the  coal  and  minerals,  but  so  as  the 
lessees  should  not  be  dispunishable  for  waste.  It  was  held  that 
the  last  clause  was  repugnant,  and  that  the  trustees  might  demise 
mines,  both  opened  and  unopened,  at  the  date  of  the  settlement : 
and,  also,  that  the  royalty  reserved  was  in  the  nature  of  rent,  and 
was  payable  to  the  tenant  for  life,  and  did  not  form  corpus,  and 
included  royalties  under  leases  not  existing  at  the  time  of  the  set- 
tlement.   The  Master  of  the  Eolls  says  (24  Beav.  123) :  "  With 

respect  to  the  second  point,  as  to  how  the  produce  of  the 
[*  216]  mine  is  to  be  •  considered,  I  must  treat  it,  if  I  am  right 

in  my  view  as  to  the  first  point  of  the  case,  as  if  this  were 
an  ordinary  power  to  lease  the  mines  and  minerals,  in  which  case 
all  the  authorities  establish  this :  that  the  produce  of  the  mines 
is  made  part  of  the  annual  profits  of  the  estate,  and  whether  in 
royalties,  or  in  whatever  other  way  it  is  produced,  it  forms  part 
of  those  profits,  and  that  it  is  not  to  be  treated  like  timber  cut, 
where  the  produce  of  it  is  invested,  and  the  interest  only  is  paid 
to  the  tenant  for  life."  Then,  again,  there  is  a  case  under  a  will : 
Earl  Cowley  v.  Wellesley,  35  Beav.  638.  The  side-note  is  this: 
"  Eents  and  royalties  of  brickfields,  one  of  which  had  been  leased 
by  the  testator  and  the  other  by  the  trustees  of  his  will  under  a 
power,  held  to  belong  to  the  tenant  for  life."  From  the  statement 
of  facts,  I  understand  that  the  field  leased  by  the  testator  was 
worked  as  a  brickfield  during  his  life  by  William  Hill,  the  lessee. 
After  the  testator's  death,  his  trustees  had,  in  pursuance  of  an 
arrangement  made  by  the  testator  in  his  lifetime,  and  under  a 


R.  C.  VOL.  XVII.]  SECT.  V.  —  LIMITED  OWNERS.  749 

JTo.  98.  —  In  xe  K«iii«y»-Ty]ito.    IL&agjw-TyikU  ▼.  Kungj^Tjnt^  IRM,  8  Ch.  816, 817. 

leasing  power  contained  in  his  will,  granted  a  lease  to  the  said 
William  Hill  of  an  adjoining  piece  of  land  also  for  a  brickfield, 
reserving  similar  rents  and  royalties;  which  is  precisely  the 
present  case,  except  that  it  related  to  brick-earth  instead  of  coaL 
The  Master  of  the  Rolls  said :  "  I  think  that  the  lease  being 
made  by  the  trustees  makes  no  difference,  and  that  it  is  clear,  from 
scope  of  leasing  power,  that  the  leases  were  intended  for  the 
benefit  of  the  tenant  for  life."  There  are  several  other  cases  of 
the  same  import  I  do  not  intend  to  refer  to  any  other  except 
Stoughton  v.  Leigh,  1  Taunt.  402  (11  R  R  810).  That  is  said  by 
Mr.  Everitt  to  be  in  point  and  binding  on  me.  I  assent.  I  think 
it  is  binding  on  me,  and  in  favour  of  the  tenant  for  life.  The 
material  facts  were  these.  One  John  Hanbury  was  in  his  lifetime, 
at  the  time  of  his  marriage  and  at  his  death,  actually  seised  of 
divers  landed  estates,  and  of  several  mines  of  lead  and  coal, — 
namely,  in  his  own  hands,  a  lead  mine,  and  a  coal  mine  neither 
opened,  wrought,  or  demised :  two  lead  mines  and  two  coal  mines 
which  during  the  coverture  he  had  demised  to  tenants  for  years, 
reserving  pecuniary  rents,  to  be  paid  whether  they  did  or  did  not 
open  and  work  them ;  and  of  each  sort  of  these  one  had 
been  opened  before  his  death  by  the  tenant,  *who  still  [*217] 
continued  now  to  work  it,  and  the  other  had  not  been 
opened ;  a  lead  mine  and  a  coal  mine  had  been  demised  during 
the  coverture  to  tenants  for  years,  rendering  not  pecuniary  rents, 
but  quantities  of  the  lead  ore  and  coal  when  gotten,  and  the 
tenants  were  by  the  terms  of  their  leases  at  liberty  to  work  or 
not  to  work  these  mines ;  the  coal  mine  was  at  the  time  of  John 
Hanbury's  death,  and  of  that  action,  wrought  by  the  tenant ;  the 
lead  mine  had  not  been  opened ;  and  of  two  lead  mines  and  two 
coal  mines,  which  had  been  opened  and  were  wrought  by  the 
deceased  himself  at  the  time  of  his  death,  one  of  each  sort  had, 
from  the  time  of  his  death,  ceased  to  be  wrought,  his  heir 
thinking  them  unprofitable ;  the  other  of  each  sort  the  heir  con- 
tinued to  work  to  profit.  The  deceased  was  also  entitled  to  the 
following  minerals  lying  under  land  which  was  not  his  own,  but 
wherein  he  had  purchased  of  the  landowner  liberties  to  work 
through  his  land :  namely,  a  mine  of  coal,  and  another  of  lead 
ore,  which  he  had  opened  and  wrought  during  the  coverture,  and 
was  working  at  the  time  of  his  death,  since  which  the  heir  had 
ceased  to  work  the  lead,  but  continued  to  work  the  coal ;  a  mine 


750  MINES  AND  MINERALS. 


Ho.  98.  —  In  re  Xmu/^Tyntib.    Xemegn-Tynto  ▼.  X/trngj^-TyiiU^  1808, 8  Gh.  817, 818. 

of  lead,  and  another  of  coal,  which  he  had  not  opened  or  wrought ; 
a  mine  of  lead,  and  another  of  coal,  which  he  had  demised  to 
tenants  for  years,  rendering  at  their  own  option,  which  they  might 
annually  make,  either  pecuniary  rents  or  rents  in  kind,  commenc- 
ing from  the  time  when  the  mines  should  be  wrought  The  lead 
mine  had  been  opened  before  the  death  of  John  Hanbury,  and  the 
tenants  had  paid  their  rents  in  ore  in  kind  The  coal  mine  had 
not  been  opened. 

The  material  part  of  the  judgment  given  in  answer  to  certain 
questions  put  by  the  Court  of  Chancery  (1  Taunt  410, 11  R  R 
816),  is  reported  thus :  "  The  Court  certified  to  the  High  Court  of 
Chancery  that  their  opinion  upon  the  questions  proposed  to  them 
was  that  the  widow  of  John  Hanbury  was  dowable  of  all  his 
mines  of  lead  and  coal,  as  well  those  which  were  in  his  own  landed 
estates  as  the  mines  and  strata  of  lead  or  lead  ore,  and  coal,  in  the 
hands  of  other  persons,  which  had  in  fact  been  open  and  wrought 
before  his  death,  and  wherein  he  had  an  estate  of  inheritance 
during  the  coverture,  and  that  her  right  to  be  endowed  of 
[*  218]  them  had  no  *  dependence  upon  the  subsequent  continu- 
ance or  discontinuance  of  working  them,  either  by  the 
husband  in  his  lifetime,  or  by  those  claiming  under  him  since  his 
death.  They  thought  too  that  her  right  of  dower  of  such  mines, 
&c.,  could  not  be  in  any  respect  affected  by  leases  made  by  the 
husband  during  the  coverture  "  —  that  is,  her  right  was  exactly 
the  same  as  if  no  lease  had  been  granted  by  him  during  coverture ; 
"  but  if  any  of  the  existing  leases  for  years  "  (and  no  distinction 
was  made  as  to  whether  the  mines  were  open  or  not)  "  were  made 
by  the  husband  before  marriage,  then  the  endowment  (if  made 
of  the  mines)  must  be  of  the  reversions  and  of  the  rents  reserved 
by  such  leases  as  incident  to  the  reversions,  in  which  case  they 
thought  the  widow  would  be  bound,  so  long  as  the  demises  con- 
tinued, to  take  her  share  of  the  renders,  whether  pecuniary  or 
otherwise,  according  to  the  terms  of  the  respective  reservations. 
They  were  also  of  opinion  that  the  widow  was  not  dowAble  of 
any  of  the  mines  or  strata  which  had  not  been  opened  at  all, 
whether  in  lease  or  not" 

It  came  to  this,  that  if  at  the  time  of  the  testator's  death  a 
mine  was  not  opened  at  all,  she  was  not  entitled  to  dower.  But  if 
any  leases  had  been  made  before  her  right  to  dower  attached, 
although  she  was  not  dowable  out  of  the  mines,  she  was  entitled 


B.  a  VOL.  XVIL]  sect.  v.  —  LIMITED  OWNERS.  751 


Vol.  86,  96.  —  SUM  T.  Snowiloii  Slate  QvaniM  Oo. ;  In  xe  Xamflyi-Tyiite.  —  Votet. 

to  the  rents  and  profits  as  incident  to  the  reversions.  So  in  this 
case,  where  mines  have  been  let  by  the  settlor  before  the  will 
came  into  operation,  the  tenant  for  life  under  the  will  is  entitled, 
in  my  opinion,  to  the  rents  and  royalties  as  incident  to  the 
reversion  of  which  he  is  tenant  for  life. 

ENGLISH  NOTES. 

Tenant  for  life  of  estate  in  which  mines  had  been  opened  and  were 
being  worked  under  a  twenty-one  years'  lease,  demises  to  the  tenants 
under  that  lease  the  mines  opened  and  unopened,  for  twenty-six  years, 
reserving  ore  as  rent  to  the  lessor,  his  heirs  and  assigns.  Under  the 
settlement  the  tenant  for  life  had  power  to  grant  leases  in  possession  for 
twenty-one  years  at  the  best  rent,  &c.  On  a  bill  filed  on  behalf  of  the 
remainder-man  to  set  aside  the  lease  as  not  conformable  to  the  power,  it 
was  held  :  1.  That  the  original  twenty-one  years'  lease  must  be  deemed 
to  be  surrendered ;  2.  That  the  demise  purporting  to  be  granted  for 
twenty-six  years  shall  bind  the  remainder-man  for  twenty-one  years ; 
3.  That  the  rent  in  ore,  assuming  it  to  be  a  fair  proportion,  satisfied  the 
condition  as  to  the  best  rent ;  4.  That  the  rent  reserved,  not  being  a 
gross  rent  for  all  the  mines,  but  separate  on  each,  the  power  was  well  exe- 
cuted as  to  the  open  mines,  though  not  of  mines  unopened.  Campbell  v. 
Leaeh;  Leach  v.  Campbell  (1775,  before  Lord  Apsley,  C,  De  Grey, 
Li.  C.  J.,  and  Smythe,  L.  G.  B.,  on  appeal  from  the  Bolls),  Ambler,  740. 

Ferrand  v.  Wilson  (Wigbam,  V.  C,  1845),  4  Hare,  344,  15  L.  J. 
Ch.  41,  was  a  suit  by  a  remainder-man  against  the  tenant  for  life  under  a 
will,  for  an  account  (^inter  alia)  of  coal  mines  opened  since  the  death  of 
the  testator  and  of  stone  obtained  from  quarries  open  at  the  testator's 
death.  The  testator  had  devised  his  lands  in  strict  settlement,  with 
liberty  for  each  tenant  for  life  in  succession  to  cut  down  timber,  and  to 
get  stone  upon  the  premises,  for  buildings  and  repairs,  but  for  no  other 
purpose;  and  in  the  latter  part  of  bis  will  he  recited  that  he  had  already 
restrained,  and  did  thereby  intend  to  restrain,  each  and  every  such 
tenant  for  life  from  cutting  any  timber  or  getting  any  stone  upon  the 
premises,  save  for  the  purposes  aforesaid.  The  decision  of  Vice-Ghan- 
cellor  WiGRAM  upon  the  points  as  to  mines  and  quarries  was  as  follows: 
<*  With  respect  to  the  coal  mines,  I  apprehend  the  law  is  clearly  set- 
tled, that  a  tenant  for  life  may  work  such  mines  as  are  open  at  the  death 
of  the  testator,  but  cannot  open  new  mines.  Whether  a  pit  open  is 
properly  to  be  considered  a  pit  open  for  the  purpose  of  working  an  old 
mine  or  a  new  mine,  may  be  a  question  ;  but  the  proposition  appears 
to  be  stated  in  all  the  cases,  that  a  tenant  for  life  may  work  open  mines, 
but  cannot  open  new  ones.     Upon  that  part  of  the  case  which  relates  to 


752  MIKES  AND  MINERALS. 


Vot.  85,  96.  —  SUM  ▼.  anowdoii  BUto  QvaniM  Go. ;  Inn  Xamflyi-Tyiite. — VoCai. 

the  working  of  the  coal  mines  I  shall  give  no  opinion,  except  that 
which  is  involved  in  the  inquiry  I  propose  to  direct,  namely,  whether 
any  coal  mines  have  heen  opened  and  worked  by  any  and  what  persons, 
which  were  not  open  at  the  death  of  the  testator;  and  the  Master  is  to 
state  the  grounds  of  the  conclusion  to  which  he  shall  come  with  refer- 
ence to  the  last-mentioned  inquiry.  With  respect  to  the  quarries  :  if 
this  question  stood  upon  those  clauses  of  the  will  which  in  terms  em- 
power the  successive  tenants  for  life  to  cut  down  timber,  and  to  get 
stone  for  building  and  repairs  upon  the  premises,  but  for  no  other  use 
or  purpose  whatsoever,  I  should  have  felt  little  difficulty  in  answering  it. 
Without  those  clauses,  the  tenant  for  life  would  have  had  a  right  within 
certain  limits  to  get  stone  out  of  open  quarries,  but  would  not  have  had 
a  right  of  cutting  down  timber  or  wood  for  building  and  repairs,  or  of 
getting  stone  for  that  purpose,  exc-ept  out  of  open  quarries  :  with  those 
clauses  the  tenant  for  life  would  have  power,  for  the  purposes  of  build- 
ing and  repairs,  to  cut  down  timber  and  wood,  and  get  stone  from 
any  part  of  the  estate.  The  clauses  are  clearly  enabling  clauses,  so  far, 
and  inserted  for  that  purpose;  and  it  would,  I  conceive,  be  against 
sound  principles  of  construction,  if  the  case  stood  here  alone,  to  read 
the  clauses  as  restrictive,  without  something  more  express  than  is  found 
in  the  will.  But  the  question  does  not  rest  upon  those  clauses  alone. 
In  a  subsequent  part  of  the  will,  the  testator  again  refers  to  the  same 
subject ;  and  the  question  arises,  whether  the  subsequent  part  of  the 
will  does  not  show  that  the  clauses  I  have  already  referred  to  were  in- 
tended to  be  restrictive.  The  words  are  these  :  '  That  the  testator  has 
restrained,  and  does  hereby  restrain,  the  parties  from  cutting  timber  or 
getting  stone,  except  for  special  purposes.'  This  clause  refers  to  the 
antecedent  clauses,  as  being  restrictive;  and  although  I  cannot  say  the 
construction  I  put  upon  this  clause  is,  strictly  speaking,  absolutely 
necessary,  I  think  it  safer  upon  the  whole  to  give  literal  effect  to  the 
words  of  the  will,  and  hold  that  the  tenant  for  life  could  not  take  stone, 
even  from  open  quarries,  except  for  the  purposes  of  building  and  repairs. 
A  construction  which  thus  supposes  the  testator  to  have  restrained  the 
tenant  for  life  from  selling  stone  or  getting  it,  except  for  use  upon  the 
estate,  is  not  unreasonable.  That  was  clearly  the  intention,  in  my 
opinion;  and  I  find  nothing  at  all  unlawful  in  the  testator  saying  that 
the  stone  shall  not  be  taken  from  open  quarries  during  a  life  in  esse," 

In  Mostyn  v.  Lancaster;  Taylor  v.  Mostyn  (C.  A.  1883),  23  Ch.  D. 
583,  62  L.  J.  Ch.  848,  48  L.  T.  716,  31  W.  R.  686,  a  testator  had  de- 
vised his  estate  in  strict  settlement,  the  life  tenancies  being  without 
impeachment  of  waste;  and  after  giving  powers  to  the  tenants  for  life 
to  jointure  their  wives  and  provide  portions  for  younger  children,  the 
testator  authorised  the  tenants  for  life  when  in  possession  and  the 


R.  a  VOL,  XVIL]  sect.  v.  —  LIMITED  OWNERS.  753 

Hot.  f6»  96. — XUai  t.  Snowdim  Slato  QvaniM  Oo. ;  In  xe  Xamflyi-Tyiito.  —  VofeM. 

guardian  of  infant  life  tenants  in  possession  to  demise  any  parts  of  the 
estates,  except  the  mansion-house,  for  any  term  not  exceeding  twenty- 
one  years  at  the  best  rent  without  fine  or  premium  ;  and  then  empow- 
ered such  tenants  for  life  and  guardians  to  grant  any  lease  or  leases  of 
any  mines  or  collieries  or  of  any  parcels  of  land  for  the  purpose  of  dig- 
ging for,  winning,  or  gaining  minerals  or  coal  in  any  part  of  his  estates 
^*  for  such  terms  or  number  of  years,  and  under  and  subject  to  such  rents 
or  reservations  and  agreements  as  to  such  tenant  for  life  or  guardian  or 
guardians  shall  seem  reasonable  and  proper,"  and  also  to  grant  build- 
ing or  repairing  leases  for  any  term  not  exceeding  ninety-nine  years 
without  any  fine  or  premium.  The  tenant  for  life  in  possession  under 
this  settlement,  by  a  deed  reciting  the  leasing  power,  in  considera- 
tion of  £6000  paid  to  him  by  X.,  demised  the  mines,  included  in  a 
mining  lease  made  by  the  testator  and  having  at  the  date  of  this  latter 
demise  only  five  years  to  run,  to  X.  for  ninety-nine  years  at  a  pepper- 
corn rent,  subject  to  redemption  on  payment  of  £6000  and  interest. 
It  was  held  that  this  was  a  valid  exercise  of  the  power  contained  in 
the  testator's  settlement,  and  that  a  good  legal  mortgage  in  the  mines 
comprised  in  the  testator's  lease  was  thereby  created. 

As  to  mining  leases  in  glebe  lands  an  important  case  is  Ecelesiastical 
Commissioners  v.  Wodehouse,  1895,  1  Gh.  652,  64  L.  J.  Gh.  329,  72 
Ij.  T.  257,  43  W.  B.  395.  It  was  held  by  Bomeb,  J.,  that,  after  the 
passing  of  the  restraining  statutes  13  Eliz.,  c.  10^  and  14  Eliz.,  c.  11, 
a  rector  could  not,  even  with  the  consent  of  the  patron  and  ordinary, 
open  new  mines  upon  the  glebe  lands ;  that  the  Ecclesiastical  Commis- 
sioners have  now  such  an  interest  in  the  leasing  of  mines  under  glebe 
lands  as  enables  them  to  apply  to  the  Court  for  an  injunction  to  restrain 
the  illegal  working  of  such  mines ;  and  that  the  consent  of  the  Ecclesi- 
astical Commissioners  which  is  necessary  under  5  &  6  Vict.,  c.  108,  and 
21  &  22  Vict.,  c.  57,  to  any  valid  lease  of  glebe  lauds,  cannot  be  in* 
f erred  from  the  mere  fact  of  receipt  by  them  of  rents  and  royalties 
derived  from  a  mine  which  had  been  illegally  opened  and  worked  under 
an  agreement  for  a  lease  to  which  the  Ecclesiastical  Commissioners  had 
refused  to  consent. 

The  Settled  Land  Act,  1882,  by  section  6,  gives  power  to  the  tenant 
for  life  to  grant  a  mining  lease  for  sixty  years;  and,  in  special  circum- 
stances, under  section  10,  for  a  longer  term. 

The  clause  (11)  of  the  Settled  Land  Act,  1882,  referred  to  in  the 
judgment  of  the  latter  principal  case  is  as  follows  :  ''Under  a  mining 
lease,  whether  the  mines  or  minerals  leased  are  already  opened  or  in 
work  or  not,  unless  a  contrary  intention  is  expressed  in  the  settlement, 
there  shall  be  from  time  to  time  set  aside,  as  capital  money  arising 
tinder  this  Act,  part  of  the  rent,  as  follows,  namely :  where  the  tenant 
VOL.  XVII.— 48 


754  MINES   AND  MINERALa 

Hot.  85, 98.  —  Elias  ▼.  SaowdAn  Slate  Qnmrriei  Co. ;  In  re  Xem^jn-Tynte. — Votei. 

for  life  is  impeachable  for  waste  in  respect  of  minerals,  three  fourth 
parts  of  the  rent,  and  otherwise  one  fourth  part  thereof,  and  in  ereiy 
such  case  the  residue  of  the  rent  shall  go  as  rents  and  profits.'^ 

On  this  clause  Mr.  Wolstenholme  (7th  ed.  p.  311)  observes:  "The 
portion  of  rent  set  aside  under  this  section  is  in  effect  the  consideration 
paid  by  the  tenant  for  life  for  the  privilege  of  granting  the  lease  for 
sixty  years.  But  the  Act  does  not  affect  any  of  his  common-law  rights, 
as  tenant  for  life,  to  open  and  work  mines  if  he  is  unimpeachable  for 
waste,  and  to  work  open  mines  if  he  is  impeachable  for  waste.'' 

What  is  a  "  contrary  intention  "  under  this  clause  was  considered  in 
the  case  of  In  re  Duke  of  Newcastle s  Estates  (1883),  24  Ch.  D.  129, 
62  L.  J.  Ch.  645,  48  L.  T.  779,  31  W,  E.  782.  The  settlement  gave 
the  trustees  power  during  the  minority  of  any  person  entitled  to  posses- 
sion to  receive  and  apply  rents  and  profits  in  the  management  of  estate 
and  maintenance  of  infant,  and  to  accumulate  and  apply  the  surplus  in 
paying  off  charges,  or  in  purchase  of  real  estate  to  be  settled  to  the  same 
uses  ;  and  it  gave  power  to  the  guardians  during  minority  to  grant 
mining  leases  for  sixty  years.  It  was  held  by  Pearson,  J.,  that  the 
rents  derived  from  mining  leases  were  to  be  applied  by  the  trustees 
in  the  manner  directed  by  the  settlement,  as  coming  within  the  term 
"contrary  intention."  And  in  the  case  of  In  re  Bagofs  Settlement, 
Bagot  V.  KiUoey  1894,  1  Ch.  177,  63  L.  J.  Ch.  615,  70  L.  T.  229,  42 
W.  B.  170,  where  the  settlement  conveyed  the  estate  subject  to  an 
existing  rent-charge,  upon  trust  for  sale,  with  power  to  postpone,  and 
to  pay  the  income  arising  from  the  investment  of  the  proceeds  of  sale, 
or  the  rents  and  profits  until  sale,  to  a  married  woman  for  life  for  her 
separate  use  without  power  of  anticipation,  and  gave  the  trustees  power 
(inter  alia)  to  work  mines,  and  grant  mining  leases  for  niuety-nine  years, 
it  was  held  by  Chitty,  J.,  that  a  "contrary  intention"  was  shown  by 
the  settlement,  and  that  the  whole  rents  under  the  mining  leases  should 
be  treated  as  income. 

AMERICAN  NOTES. 

Tenant  for  life  may  work  an  opened  mine  and  foUow  up  the  same  vein  by 
new  shafts.  Coates  v.  Cheever,  1  Cowen  (N.  Y.),  476 ;  Billings  v.  Taylor,  10 
Pickering  (Mass.),  460;  Crouch  v.  Puryear,  1  Randolph  (Virginia),  258;  Nedy. 
Neel,  19  Penn.  State,  324 ;  Findlay  v.  Smith,  6  Munford  (Virginia),  134  (new 
salt-well  in  connection  with  old  one).  He  may  evep  exhaust  the  mine.  Sayers 
V.  Hoskinson,  110  Penn.  St.  473.  See  Shaw  v.  Wallace,  25  New  Jersey  Law, 
453 ;  Irwin  v.  Davidson,  3  Iredell  Equity  (Nor.  Car.),  311 ;  Lenfers  v.  Henke, 
73  Illinois,  405;  24  Am.  Rep.  263;  Harlow  v.  Lake  Superior  Iron  Co.,  36 
Michigan,  105. 


B.  a  VOL.  XVII.]      SECT.  VI.  — RULES  OF  CONSTRUCTION,  ETC.  755 

Vo.  27.  —  Davis  v.  Shepherd,  L.  B.  1  Gh.  410.  —  Bole. 


Section  VI.  —  Rules  of  Construction^  &c. 

No.  27.  — DAVIS  V.  SHEPHERD. 
(1866.) 

RULE. 

Where,  in  an  agreement  for  a  lease  of  a  mine,  the  mine 
is  described  as  bounded  by  a  fault  (the  position  of  which  is 
not  exactly  ascertained),  and  containing  a  certain  number 
of  acres  "  or  thereabouts : "  —  although  this  last  expression 
may  be  construed  with  greater  latitude  than  similar  words 
in  an  agreement  for  a  lease  of  the  surface,  yet,  if  the  real 
position  of  the  fault  is  such  that  the  area  of  the  mine  ex- 
tending to  the  fault  would  be  very  much  larger,  the  lessee, 
who  has  commenced  working,  is  not  to  be  considered  as  in 
possession  of,  or  entitled  to,  the  whole  of  that  larger  area. 

Davis  V.  Shepherd. 

L.  R.  I  Ch.  410-421  (8.  c.  35  L.  J.  Ch.  581 ;  15  L.  T.  122). 

Agreement  —  Quantity.  —  FaUa  Demonstratio.  —  Boundary.  —  Mining  [410] 

Lease, 

The  owners  of  land  agreed  to  demise  to  A.  the  minerals  under  it  to  the  west 
of  a  certain  fault  supposed  to  run  through  the  land  in  the  direction  of  a  line 
drawn  on  a  certain  plan,  the  quantity  of  the  land  being  described  as  supposed 
to  be  eighty-three  acres  or.  thereabouts.  The  owners  made  a  similar  agreement 
i^ith  B.  as  to  the  minerals  under  the  land  to  the  east  of  the  fault,  supposed  to 
contain  ninety-eight  acres  or  thereabouts.  The  fault  was  afterwards  found  to 
run  so  as  to  leave  on  the  west  eight  acres  only. 

Heldf  on  a  bill  filed  by  B.  to  restrain  A.  from  working  coal  to  the  east  of 
the  fault,  that  the  Court  would  not,  in  a  suit  by  B.  for  specific  performance  against 
the  owners,  ha^se  decreed  a  demise  of  all  the  minerals  to  the  east  of  the  fault, 
and  that  he  could  not  be  deemed  in  constructive  possession,  so  as  to  maintain 
his  suit  against  A. 

Qiuere,  whether  B.  was  tenant  from  year  to  year,  or  what  his  title  was,  and 
w^bether,  under  the  circumstances,  if  the  fault  had  run  nearly  in  the  direction  of 
the  line,  a  different  construction  would  not  have  been  given. 

Miss  E.  M.  Turberville,  Sir  G.  L.  Glyn,  and  W.  E.  King  were,  in 
1861,  joint  owners  in  fee  of  a  farm  and  lands  called  Blaenamman 
rach  Farm,  in  the  parish  of  Aberdare,  in  the  county  of  Glamorgan. 


756  MIKES  AND  HINSRALS. 


Vo.  87.— DftTif  T.  ShephMd,  L.  B.  1  Ch.  410,  411. 


The  plaiutifF  Davis  was  at  that  time  working  coal  to  the  east  of  the 
farm,  the  defendant  Shepherd  to  the  west.  Other  persons  were 
working  coal  to  the  south,  and  from  their  workings  it  was  sup- 
posed that  a  certain  fault  or  dislocation  of  the  strata  called  a 
"  downthrow  fault  to  the  west,"  or  an  "  upthrow  fault  to  the  east^** 
traversed  the  farm  in  a  direction  nearly  north  and  south,  cutting 
it  into  two  nearly  equal  parts,  as  mentioned  below. 

On  the  1st  of  September,  1861,  an  agreement  was  made  and 
signed  between  the  agent  for  the  owners  of  the  farm  on  the  one 
part,  and  Shepherd  and  D.  Evans  (who  afterwards  died)  of  the 
other  part ;  and  thereby  it  was  agreed  '*  that  the  said  Miss  Turber- 
ville,  Sir  O.  L.  Glyn,  and  W.  B.  King  shall  grant,  and  the  Messrs. 
Shepherd  and  Evans  shall  take  a  lease  of  the  coal,  ironstone,  and 
fireclay  in  and  under  a  portion  of  the  Blaenamman  Each  Farm, 
situate  in  the  parish  of  Aberdare,  which  lies  to  the  westward  of  a 

downthrow  fault  to  the  west,  supposed  to  run  through  the 
[*  411]  said  farm  in  *  the  direction  shown  upon  the  plan.     The 

exact  quantity  cannot  at  present  be  ascertained,  but  it  is 
supposed  to  be  eighty-three  acres  or  thereabouts."  The  agreement 
also  provided  that  the  lessees  were  to  have  power  to  take  portions 
of  the  surface,  not  exceeding  ten  acres,  for  the  purpose  of  sinking 
pits  and  shafts,  constructing  railways  and  engine-houses ;  that  the 
term  was  to  be  fifty  years  from  the  1st  of  November,  1861,  at  a 
certain  rent  of  £185  a  year,  and  royalties  also  to  be  paid  on  the 
coal  raised,  according  to  the  seam  from  which  it  came ;  and  that 
the  lessee  should  leave  a  barrier  where  required  in  each  vein ;  and 
contained  several  other  provisions.  A  plan  was  annexed  to  the 
agreement,  in  which  a  straight  blue  line  was  drawn,  representing 
the  supposed  direction  of  the  fault 

On  the  19th  of  July,  1862,  the  owners  made  an  agreement  with 
the  plaintiff  Davis  for  a  lease  of  the  coal,  ironstone,  and  fireclay  to 
the  eastward  of  the  same  fault,  the  quantity  of  land  being  therein 
described  as  supposed  to  be  ninety-eight  acres  or  thereabouts,  and 
the  fault  being  called  "  an  upthrow  fault  to  the  east,"  which  was 
admitted  to  mean  the  same  as  "  a  downthrow  fault  to  the  west" 
The  term  was  to  be  forty  years,  at  a  fixed  rent  of  £200  and  royalties. 
A  similar  plan  was  annexed,  and  the  agreement  was  muiatis 
mutandis  nearly  in  the  same  terms  as  that  with  Shepherd.  It 
was  in  evidence  that  Davis  had  notice  at  this  time  of  Shepherd's 
agreement 


B.  C.  VOL.  XVII.]       SECT.  VI.  —  RULES  OF  CONSTRUCTION,  ETC.  75T 

Vo.  87.  — DftTif  ▼.  Shophttrd,  L.  K.  1  COl  411,  418. 

No  leases  were  granted  pursuant  to  these  agreements,  but  both 
the  lessees  commenced  working  the  mines  which  they  had  agreed 
to  take,  Davis  from  his  former  works  on  the  east,  and  Shepherd 
from  his  former  works  on  the  west.  Shepherd  very  soon  encoun- 
tered a  fault  not  running  near  the  line  marked  on  the  plan,  but  far 
to  the  west  of  it ;  so  that,  supposing  it  to  continue,  it  would  cut  off 
to  the  west,  not  eighty-three  acres,  but  only  about  eight  acres.  He, 
however,  prosecuted  his  working  through  this  fault,  and  proceeded 
to  get  the  coal  beyond  it 

Davis  thereupon  filed  his  bill  against  Shepherd  and  the  owners 
of  the  farm,  alleging  that  this  was  the  fault  mentioned  in  the  plan, 
and  that  Davis  was  entitled  to  a  lease  of  all  the  coal  to  the  east  of 
this  fault,  and  praying  that  Shepherd  might  be  restrained  from 
working  coal  to  the  east  of  this  fault,  and  for  an  account 

*  A  great  quantity  of  evidence  was  given  on  each  side,  [*  412] 
the  plaintiff,  amongst  other  things,  adducing  evidence  to 
show  that  a  fault  was  the  natural  and  proper  boundary  between 
two  collieries,  that  to  take  another  line  and  leave  a  fault  within 
the  bounds  of  a  colliery  would  be  contrary  to  the  rules  of  good 
mining,  and  would  render  it  necessary  to  leave  a  barrier  of  good  coal 
between  the  two  collieries,  at  a  loss  to  one  or  both,  and  to  the 
owners ;  also,  that  the  owners  refused  to  let  the  coal  to  the  plain- 
tiff unless  he  took  it  up  to  this  fault. 

The  plaintiff  moved  for  an  injunction  before  Vice-Chancellor 
Wood,  and  the  matter  afterwards  came  on  upon  motion  for  decree, 
when  the  Vice-Ohancellor  decreed  an  injunction  and  an  account, 
without  prejudice  to  any  proceeding  which  any  of  the  parties  to 
the  suit  might  take,  for  enforcing  the  specific  performance  of  the 
agreements  for  leases.^ 

1  May  4, 1865.  Vice-Chancellor  Wood  no  one  knew  where  it  ran.  The  plaintiff 
said  that  he  conld  not  hold  that  there  was  had  his  agreement,  and  was  on  the  east  of 
any  right  in  the  defendant.  As  regarded  the  fault ;  there  was  no  opportunity  given 
hini,  his  limit  was  the  fault,  which  undouht-  before  the  agreement  was  made  of  testing 
edly  existed.  Though  the  acreage  was  the  course  of  the  fault,  and  all  that  was 
called  eighty-three  acres  or  thereabouts,  said  was  that  the  lessors  believed  it  to  run 
how  conld  he  say  that,  having  a  distinct  in  a  certain  direction,  in  which  they  were 
boandary,  he  must  go  to  the  other  side  of  it,  wrong.  If  you  have  once  got  your  bound- 
er else  he  will  not  get  his  eighty-three  acres,  ary,  it  makes  no  d iff erence  whether  yon  call 
That  might  be  a  good  ground  for  him  to  the  land  agreed  to  be  let  eighty-three  ticres 
resist  specific  performance  of  his  agree-  or  one  thousand  acres.  The  plaintiff  was  in 
ment  against  the  owner ;  but  his  construe-  possession ;  the  landlords  did  not  threaten 
tion  conld  not  be  enforced  on  others.  His  to  turn  him  out,  and  did  not  even  say  at 
boundary  was  clearly  to  be  a  fault,  though  the  bar  that  they  would  file  a  biU  to  have 


758  MINES  AND  MINERALa 


Vo.  87.  — Davif  Y.  Shepherd,  L.  B.  1  Gh.  418,  418. 


The  defendants  appealed,  and  the  appeal  having  been  appointed 
to  be  heard  before  the  full  Court,  they  moved  that  they  might  be 
at  liberty  to  bring  forward  new  evidence,  discovered  by  them  since 
the  hearing.  The  plaintiff  did  not  oppose  this,  and  a  great  deal  of 
further  evidence  was  gone  into  on  both  sides,  the  defend- 
[*  413]  ants  *  attempting  to  show  that  the  fault  in  the  adjoining 
coUiery  never  reached  the  Blaenamman  Fach  Farm  at  all, 
and  that  the  fault  through  which  Shepherd  had  worked  was  not 
the  fault  mentioned  in  the  agreement,  but  an  independent  fault. 

The  Attorney-General  (Sir  R  Palmer),  Mr.  W.  M.  James,  Q.  C, 
and  Mr.  Freeling,  for  the  plaintiff:  — 

It  is  clear  that  the  plaintiff  has  the  legal  interest  in  all  the  land 
up  to  the  fault,  the  position  of  which  was  uncertain,  and  the 
defendant  took  his  chance  of  what  his  lease  might  comprehend ;  it 
was  an  aleatory  contract,  and  each  party  took  his  chance.  As  to  the 
acreage  mentioned,  faUa  demonstratio  non  nocet.  Shep.  Touch.  99, 
101 ;  Llewellyn  v.  Jersey,  11  M.  &  W.  183.  The  evidence  is  con- 
clusive that  a  fault  is  the  natural  and  proper  boundary  between  two 
collieries,  and  that  a  landowner  would  never  sanction  any  other. 
The  defendant  is  tenant  from  year  to  year.  Doe  v.  Bell,  5  T.  R  471 
(2  R  R  642) ;  Doe  v.  Amey,  12  Ad.  &  E.  476. 

Mr.  Eolt,  Q.  C,  Mr.  G.  M.  Gifrard,Q.C.,and  Mr.  Marten,  for  the 
defendant  Shepherd :  — 

This  is  not  a  demise,  but  a  license :  Shep.  Touch.  96 ;  Doe  v.  Wood, 
2  B.  &  Aid.  724;  Coll.  Mines,  11  (p.  775, post);  Jones  v.  Reynolds, 
4  Ad.  &  £.  805 ;  and  the  right  to  take  minerals  cannot  be  the  sub- 
ject of  a  demise ;  the  plaintiff  is  therefore  not  in  possession.  The 
imaginary  boundary  was  to  be  the  real  boundary,  subject  to  any 
trifling  deviation  which  might  be  found  in  the  course  of  the  fault, 
or  unless  a  fault  was  found  substantially  in  the  same  direction, 
but  the  agreements  were  never  intended  to  give  one  man  nearly 
the  whole. 

Mr.  E.  Smith,  Q.  C,  and  Mr.  T.  H.  Hall,  for  the  landlords,  as  to 

the  agreement  rescinded ;  and  if  thej  did  lord  bronght  ejectment.  There  was  a  legal 
not  rescind  it,  they  must  complete  it,  and  interest  in  the  plaintiff,  who,  until  he  was 
grant  a  lease  of  the  coal  up  to  the  fault,  disturbed,  had  an  equitable  interest  also ; 
Eyerything  had  reference  to  the  fault.  It  that  was  strengthened  by  the  landlords  de- 
might  be  doubtful  whether,  if  the  plaintiff  dining  to  rescind  the  agreement,  and  on 
filed  his  bill  for  the  purpose,  he  would  get  the  part  of  the  defendants  there  were  no 


specific  performance ;  but  he  was  in  posses-    such  interests, 
sion,  and  could  work  on,  unless  his  land- 


R.  C.  VOL.  XVII.]      SECT.  VI,  —  RULES  OF  CONSTRUCTION,   ETC.  759 

Vo.  87.  —  Davif  ▼.  Shepherd,  L.  B.  1  Ch.  418-415. 

the  power  of  the  Court  to  interfere  in  the  case  of  trespass,  cited 
Flamang's  Case,  cited  in  7  Ves.  308 ;  Haigh  v.  Jaggar,  2  Coll.  231 ; 
Vice  V.  Thomas,  4  Y.  &  C.  Ex.  538. 

The  Attorney-General,  in  reply :  — 

Whatever  was  the  legal  interest  in  the  plaintiff,  it  con- 
tinues *  unaltered, -and  the  landlord  has  done  nothing  to  [•414] 
determine  it.  Moreover,  it  is  clear  from  the  cases  that  this 
is  an  agreement  to  demise,  and  not  a  license.  This  is  a  suit  for  an 
injunction,  not  for  specific  performance.  There  is  nothing  inequi- 
table in  enforcing  this  agreement ;  there  has  been  no  fraud ;  the 
plaintiff  has  a  legal  right,  and  why  should  it  be  taken  away  and  he 
be  deprived  of  his  remedy  ? 

This  may  be  a  case  where  the  Court  would  refuse  specific  per- 
formance of  the  agreement  to  lease,  and  leave  the  parties  to  law, 
but  while  we  are  tenants,  we  have  a  right  to  protection.  Where 
a  tenant  from  year  to  year  applies  to  the  Court  for  protection,  what 
answer  is  it  that  the  Court  would  refuse  to  assist  him  in  getting  a 
higher  title  ?  But  there  is  no  equity  between  these  parties  at  all ; 
if  the  plaintiff  is  right  the  defendant  is  wrong.  There  was  neither 
fraud  nor  mistake;  each  party  took  his  chance.  The  substance 
of  the  agreement  was  that  each  party  should  take  the  coal-field, 
bounded  by  its  natural  boundary,  the  fault,  wherever  that  might 
be.  The  line  on  the  plan  is  not  to  indicate  the  boundary,  but 
merely  that  the  fault  was  supposed  to  run  in  that  direction  —  a 
simple  statement  of  fact.  The  defendants  try  to  make  out  that 
the  line  is  the  boundary,  which  by  the  terms  of  the  agreement  it 
clearly  was  not.  As  to  the  theory  that  if  there  was  a  fault  sub- 
stantially in  the  direction  of  the  line  drawn,  then  that  was  to  be 
the  boundary,  and  if  not,  then  the  line,  how  can  any  one  say  what 
is  substantially  in  the  direction  of  the  line  ? 

April  21.  Lord  Ceanworth,  L  C,  after  stating  the  facts  of  the 
case  and  the  pleadings,  continued :  — 

The  case  as  it  came  before  us  was  partly  an  appeal  and  partly  an 
original  cause.  It  was  very  fully  and  ably  argued,  and  numerous 
points  were  made  both  as  to  the  law  and  to  the  facts.  I  have 
given  the  case  my  best  attention,  and  the  result  is,  that  I  am  unable 
to  concur  in  the  view  taken  of  it  by  the  Vice-Chancellor.  His 
Honour  considered  it  clear  that  the  plaintiff  was  in  possession  of 
the  mine  from  the  eastern  side  of  it  up  to  the  fault,  and 
that  the  defendant,  having  worked  through  that  fault,  *  was  [*  415] 


760  MINES  AND  MINERALS. 


Vo.  97.  — Datia  t.  ShiiplMid,  L.  B.  1  Gh.  415, 4ie. 


a  mere  tarespasser.  I  am  unable  to  go  with  his  Honour  in  this 
view  of  the  case. 

When  the  owner  of  real  property,  whether  surface  land  or 
minerals,  binds  himself  by  a  written  agreement  to  grant  a  lease, 
and  suffers  his  intended  lessee,  without  a  lease,  to  take  possession, 
he  must  be  understood  to  allow  the  lessee  to  .take  possession  of 
all  which  he  has  engaged  to  demise.  In  the  case  of  a  demise 
of  un worked  minerals,  there  can  hardly  be  said  to  be  actual  pos- 
session of  any  part  of  them  except  of  what  the  intended  lessee  is 
actually  working;  but  I  think  that  when  the  lessor  allows  his 
intended  lessee  to  take  possession,  and  the  lessee  does  take  pos- 
session and  commences  working  accordingly,  he  must  be  considered 
as  constructively  in  possession  of  all  which  the  lessor  has  bound 
himself  to  demise.  I  cannot,  however,  think  that  the  lessee 
can  be  treated  by  this  Court  as  constructively  in  possession  of  any- 
thing of  which  the  lessor  did  not  intend  to  put  him  in  possession, 
and  of  which  this  Court  shall  say  the  lessor  is  not  bound  to  grant 
a  lease.  The  result  of  granting  an  injunction  in  such  a  case  might 
be  that,  when  in  subsequent  ligitation  in  this  Court  the  question 
should  arise  directly  as  to  the  extent  of  the  property  to  be  demised, 
it  would  turn  out  that  the  Court  had  improperly  restrained  the 
owner  from  dealing  as  he  thought  fit  with  his  own  land  or  mines. 

Proceeding  then  on  this  principle,  the  question  to  be  answered 
is  this  :  Has  the  plaintiff  shown  that  the  defendants,  the  lessors, 
are  bound  to  grant  him  a  lease  of  the  mines  under  Blaenamman 
Fach  Farm,  beginning  from  the  eastern  boundary  up  to  the  fault, 
through  which  the  defendant  Shepherd  has  been  working  ?  I  think 
he  has  not.  For  assuming  the  plaintiff  to  be  right  in  saying  that 
the  upthrow  fault  to  the  east,  through  which  the  defendants  have 
been  working,  is  the  same  fault  which  diverges  so  much  to  the 
west  before  it  reaches  Blaenamman  as  to  leave  to  the  west  of  it  not 
eighty-three  acres,  as  marked  on  the  plan,  but  only  eight  acres  — 
assuming,  I  say,  this  to  be  so,  I  think  this  Court  would  refuse  to 
compel  the  intended  lessor  to  grant  a  lease  which  should  embrace 
an  area  of  mine  so  very  largely  in  excess  of  that  which,  as  is 
obvious  from  the  agreement  and  the  plan,  both  parties  con- 
templated. 

[♦416]  *  It  was  said  in  argument  that  both  the  contracting  parties 

knew  there  was  uncertainty  as  to  the  extent  of  what  was 

to  be  demised.   No  doubt  that  is  true.   But  the  amount  of  that  uncer- 


B.  C.  VOL.  XVIL]      sect.  VI.  —  KULE8  OF  CONSTRUCTION,  ETC.  761 

Vo.  87.  — Da^  T.  (Omghitatdy  L.  B.  1  Oi.  416,  417. 

tainty  is  indicated,  so  far  as  such  a  matter  can  be  indicated^  by  the 
language  used.  The  fault  is  said  to  be  "  supposed  to  run  in  the 
direction  shown  by  the  line  on  the  plan."  The  exact  quantity  cut 
off  to  the  east  of  the  line  is  said  to  be  *'  supposed  to  be  ninety- 
eight  acres  or  thereabouts."  It  is  impossible  in  such  a  case  to 
define  with  accuracy  what  latitude  can  be  allowed  as  to  the 
quantity  to  be  demised,  —  how  much  in  enforcing  the  agreement 
the  Court  would  compel  the  lessor  to  allow  beyond  ninety-eight 
acres  if  the  line  of  the  fault  should  be  proved  to  run  to  the  west 
of  the  line  shown  on  the  plan.  It  is  impossible^  on  such  a  subject^ 
to  lay  down  any  general  abstract  rule,  and  if  the  deviation  had 
been  such  as  to  include  one  hundred  and  eight  acres,  or  even  one 
hundred  and  eighteen  acres,  instead  of  ninety-eight  acres  to  the 
east  of  the  line,  it  would  have  been  open  to  fair  argument  that  the 
excess  might  be  covered  by  the  vague  words  "  or  thereabouts." 

But  I  do  not  feel  myself  driven  to  solve  any  such  questions  in 
the  present  case.  It  is  certcdn  that  neither  party  contemplated 
such  an  addition  to  the  ninety-eight  acres  as  the  plaintiff  is  now 
contending  for.  The  lessor  had  already  agreed  to  demise  to  the 
defendant  Shepherd  all  the  mine  to  the  west  of  the  fault  described 
as  supposed  to  be  eighty -three  acres  or  thereabouts.  This  was 
known  to  the  plaintiff.  And  when  the  plaintiff  entered  into  this 
agreement,  it  could  not  have  been  in  the  contemplation  of  either 
party  that  under  such  loose  and  vague  words  as  "  or  thereabouts  " 
it  could  have  been  intended  to  oblige  the  defendant  to  accept  eight 
acres  instead  of  eighty-three  acres ;  and  I  see  no  reason  why  the 
same  principles  which  would  guide  the  Court  in  construing  words 
of  this  sort  in  an  agreement  for  sale  or  demise  of  the  surface, 
should  not  be  acted  on  when  we  are  dealing  with  minerals,  though, 
no  doubt,  there  is  in  such  subjects  more  difficulty  in  fixing  a 
boundary. 

On  this  short  ground,  I  am  of  opinion  that  the  plaintiff  cannot, 
in  this  Court,  be  considered  as  being  constructively  in  possession 
of  any  minerals  not  coming  within  the  description  of  ninety-eight 
acres  or  thereabouts,  and  not  separated  from  the  western 
border  *of  Blaenamman  Fach  by  a  line  running  in  the  [*417] 
direction,  or  nearly  in  the  direction,  of  the  line  marked  on 
the  plan. 

I  have  considered  the  case  hitherto,  adopting  the  hypothesis  of 
the  plaintiff,  that  the  fault  through  which  the  defendant  Shep- 


762  MINES  AND  MINERALS. 


Vo.  87.  — Da^  T.  Shffphnd,  L.  B.  1  COl  417,  418. 


herd  has  pushed  his  workings  is  the  fault  intended  to  be  shown 
on  the  plan.  But  I  desire  it  to  be  understood  that  I  am  by  no 
means  satisfied  that  this  is  the  case.  It  is  extremely  difficult  to 
appreciate  accurately  the  evidence  of  the  persons  who  describe  the 
nature  and  direction  of  the  faults  as  traced  in  the  adjoining  mine. 
But  I  concur  with  both  my  learned  brothers  in  the  opinion  that 
there  seem  to  be  very  strong  grounds  for  thinking  that  the  fault 
marked  on  the  plan  may  not  be  that  through  which  the  defendant 
Shepherd  has  penetrated.  In  order  to  establish  his  title,  the 
plaintiff  was  bound  to  make  this  part  of  his  case  out,  so  as  to  leave 
no  reasonable  doubt  on  the  subject  —  and  he  has  failed  to  satisfy 
me  on  this  point 

But  I  do  not  go  into  this  question  in  detail,  because,  for 
the  reasons  I  have  stated,  I  think  that,  even  if  all  this  were  made 
out  in  proof,  this  Court  cannot  treat  the  plaintiff  as  being  con- 
structively in  possession  of  the  mine  now  in  dispute.  My  opinion 
therefore  is,  that  the  decree  we  ought  to  make  is  simply  to  dismiss 
the  bill,  with  costs. 

Sir  G.  J.  Turner,  L.  J. :  — 

I  fully  concur  in  the  Lord  Chancellor's  judgment,  and  in  the 
reasons  on  which  it  is  founded,  and  I  should  not  have  thought 
it  right  to  occupy  the  time  of  the  Court  in  stating  the  reasons 
which  have  led  me  to  the  same  conclusion,  had  I  not  fully  con- 
sidered the  case  and  formed  my  opinion  upon  it  before  I  was 
aware  of  the  conclusion  at  which  the  Lord  Chancellor  had 
arrived. 

The  first  question  which  presents  itself  is,  What,  according  to 
the  true  construction  of  the  agreement  of  the  19th  of  July,  1862, 
is  the  boundary  of  the  mine  agreed  to  be  demised  to  the  plaintiff  ? 
It  is  contended  for  the  plaintiff  that  this  boundary  is  the  fault  in 
question,  through  whatever  part  of  the  farm  that  fault  may  run. 
It  is  not  necessary  to  consider  what  would  have  been  the  proi)er 
construction  of  this  agreement  if  it  had  stopped  at  the  words 
"upthrow  fault  to  the  east,"  for  these  words  are  fol- 
[*418]  lowed  by  a  *  description  of  the  fault  as  "supposed  to  run 
in  the  direction  shown  upon  the  plan  annexed  to  the 
agreement,"  and  by  a  statement  that  the  quantity  cannot  at 
present  be  ascertained,  but  is  supposed  to  be  ninety-eight  acres  or 
thereabouts,  and  the  plan  annexed  to  the  agreement  lays  down  the 
direction  of  the  fault  as  leaving  about  ninety-eight  acres  to  the 


B.  a  VOL.  XVIL]      sect.  VL  —  BULBS   OF  CONSTRUCTION,  ETa  763 

Vo.  87.  —  Jh,viM  T.  8h«ph«rd,  L.  B.  1  Gh.  418,  419. 

east  of  the  supposed  fault.  It  is  argued  for  the  plaintiffs  that  the 
parts  of  the  agreement  to  which  I  have  last  referred  amount  to  no 
more  than  falsa  demonstratio  of  the  words  "  upthrow  fault  to  the 
east ; "  but  I  do  not  agree  in  that  view.  I  think  that  the  descrip- 
tion of  the  property  intended  to  be  demised  cannot  be  taken 
merely  from  the  words  "  which  lies  to  the  eastward  of  the  upthrow 
fault  to  the  east/'  but  that  the  following  words,  at  least  so  far  as 
they  refer  to  the  supposed  direction  of  the  fault  and  as  they  refer 
to  the  plan,  and  likewise  the  plan  itself,  must  also  be  considered  as 
descriptive  of  the  property  intended  to  be  demised,  and  that  from 
the  whole  description  of  the  property,  taken  together,  it  sufl&ciently 
appears  that  what  was  really  intended  by  this  agreement  was  an 
agreement  to  demise  the  ninety-eight  acres  or  thereabouts  bounded 
by  the  fault,  if  fault  there  was,  in  the  direction  marked  on  the  plan ; 
the  reference  to  the  supposed  direction  of  the  fault  being  inserted 
like  the  common  words  " more  or  less"  in  the  description  of  parcels 
in  a  deed,  to  allow  of  any  trifling  diminution  or  increase  which 
might  be  occasioned  by  the  fault  not  running  in  the  precise 
direction  laid  down  upon  the  plan. 

It  was  further  argued  for  the  plaintiff  that  it  was  intended  both 
by  the  lessor  and  lessee  that  each  of  them  should  take  the  chance 
of  the  quantity  of  the  mine  to  be  included  in  the  demise,  and  that 
this  was  a  mere  matter  of  speculation  on  both  sides;  but  this 
appears  to  me  inconsistent  with  the  whole  tenor  of  the  agreement. 
Could  it  have  been  intended  that  the  lessee  should  pay  a  dead 
rent  of  £200  a  year,  when  he  might  take  a  mere  fraction  of  the 
mines  from  the  fault  happening  to  run  nearer  to  those  mines  which 
he  was  already  in  the  occupation  of.  And  again,  how  is  this  sup- 
posed case  of  speculation  to  be  reconciled  with  the  mention  of 
ninety-eight  acres  or  thereabouts  in  the  agreement  and  in  the 
plan? 

The  view  which  I  have  thus  taken  of  the  construction 
of  this  *  agreement  is,  I  think,  much  strengthened  by  [*  419] 
reference  to  the  correlative  agreement  of  the  14th  of  Sep- 
tember, 1861,  which  indeed  more  pointedly  illustrates  the  obser- 
vations I  have  made ;  inasmuch  as,  if  the  plaintiff's  contention  be 
well  founded,  and  be  applied  to  that  agreement,  Shepherd  would 
have  to  pay  a  dead  rent  of  £175  for  eight  acres  of  mine,  and 
could  not  even  have  the  ten  acres  of  surface  provided  by  that 
agreement. 


764  MIKES  AND  MINEBAXS. 

Vo.  87.  —  BaTii  T.  8li«plMid,  L.  B.  1  Oh.  419,  490. 

I  think,  therefore,  that  the  plaintiflTs  case,  even  upon  his  own 
agreement,  cannot  be  maintained ;  but  supposing  this  point  to  be 
open  to  more  doubt  than  it  seems  to  me  to  be,  there  are  other 
points  which,  in  my  judgment,  are  scarcely,  if  at  all,  less  fatal  to 
the  plaintiffs  case.  The  plaintiff  coming  into  equity  must,  as  it 
seems  to  me,  found  his  title  to  relief  upon  one  or  other  of  these 
grounds,  —  either  upon  his  right  under  his  agreement,  or  upon  the 
footing  of  his  being  entitled  to  call  for  the  assistance  of  this  Court 
in  aid  of  a  legal  right.  If  we  look  at  this  case  with  reference  to 
the  plaintiffs  right  under  his  agreement,  then  I  think  it  reason- 
ably clear,  for  the  reasons  which  the  Lord  Chancellor  has  stated^ 
that  specific  performance  of  the  agreement  would  not  be  decreed. 
I  do  not,  however,  go  the  length  of  saying  that  this  is  a  case  in 
which  this  Court  would  set  the  agreement  aside  and  order  it  to  be 
cancelled,  as  founded  in  mistake ;  although  I  atn  by  no  means  pre- 
pared to  say  that  the  Court  would  not  do  so,  as  the  agreement 
seems  to  me  to  have  proceeded  on  both  sides  upon  the  footing  that 
the  fault  was  supposed  to  run  in  the  direction  laid  down  upon  the 
plan,  and  it  has  subsequently  appeared  that  it  does  not  in  fact  run 
in  that  direction. 

If,  then,  the  Court  would  not  have  decreed  specific  performance 
of  this  agreement,  ought  the  Court  to  interfere  at  the  instance  of  a 
plaintiff  claiming  under  a  title  giving  him  no  right  in  equity  against 
a  third  person  claiming  with  or  without  right  under  a  title  similarly 
derived  and  antecedently  created  ?  I  think  it  ought  not  so  to  inter- 
fere ;  for  its  interference  must  be  based  upon  some  equitable  right 
giving  title  to  such  interference. 

It  was  said  on  the  part  of  the  plaintiff  that  the  question  whether 
he  was  or  was  not  entitled  to  have  his  agreement  performed,  was 
a  question  between  him  and  his  intended  lessors,  and  that  the 
defendant  Shepherd  has  no  right  to  set  up  the  jv^  tertii. 
[•  420]  But  a  *  defendant  in  equity  has  surely  a  right  to  show 
that  the  plaintiff  has  no  equitable  title,  and  the  evidence  in 
this  cause  satisfies  me  that,  so  far  as  the  plaintiffs  case  rests  upon 
specific  performance,  he  has  no  such  title.  The  fact  which  appears 
upon  the  evidence  that  the  plaintiff,  when  he  entered  into  his 
agreement,  had  notice  of  the  agreement  under  which  the  defendant 
Shepherd  holds,  tends,  I  think,  very  much  to  strengthen  this  part 
of  the  case  against  the  plaintiff. 

Then  as  to  the  plaintiffs  right  to  call  for  the  assistance  of  this 


B.  0.  VOL.  XVII.]       SECT.  VI.  —  RULES  OF  GONSTEUGTION,  ETC.  765 

Vo.  ST.-^DftTis  T.  OMphflrd,  L.  B.  1  Gh.  490, 4S1.— VotM. 

Court  in  aid  of  his  alleged  legal  right,  the  case  rests  upon  this  : 
that  possession  having  been  given  to  him  under  his  agreement,  he 
became  tenant  from  year  to  year  upon  the  terms  of  that  agreement. 
But  assuming  that  there  would  be  a  tenancy  from  year  to  year  in 
a  case  of  this  nature,  on  which  I  give  no  opinion,  this  argument,  at 
all  events,  involves  an  inquiry  of  what  mines  possession  ought  to 
be  considered  to  have  been  given  to  the  plaintiff  under  his  agree- 
ment This  case  of  interference  upon  the  footing  of  a  legal  title 
therefore  works  round  again,  as  it  seems  to  me,  to  the  question 
what  was  intended  to  be  demised,  as  to  which  I  have  already 
expressed  my  opinion. 

I  may  add  that,  looking  to  the  evidence  adduced  since  the  hear- 
ing before  the  Yice-Chancellob,  the  plaintiff,  on  whom  the  onus 
prohandi  plainly  rests,  has  certainly  not  satisfied  me  that  the  fault 
is  not  in  fact  a  distinct  and  separate  fault ;  and  I  may  further  add 
that  the  effect  of  this  decree,  proceeding  as  it  does  upon  the  assumed 
legal  title,  seems  to  me  to  give  the  plaintiff  indirectly  the  full 
benefit  of  his  agreement  according  to  his  construction  of  it,  although 
this  Court,  if  directly  applied  to  for  performance  of  that  agreement, 
would  not  in  my  opinion  have  been  justified  in  enforcing  it 

Upon  these  grounds  I  find  myself  unable  to  agree  in  the  opinion 
of  the  Vice-chancellor,  and  I  think  that  this  bill  ought  to  have 
been  dismissed,  and  dismissed  with  costs. 

Sir  J.  L.  Knight  Bruce,  L.  J. :  — 

Independently  of  any  view  which  I  may  take,  the  concurrent 
opinion  qf  the  Lord  Chancellor  and  Lord  Justice  is 
sufficient,  *and  the  bill  stands  dismissed.  But  I  am  [*421] 
bound  to  say  that  the  plaintiff  has  not,  in  my  opinion, 
established  a  sufficiently  clear  case  to  justify  this  Court  in  inter- 
fering. The  case  is  too  obscure  and  difficult  for  an  injunction,  and 
the  only  course  is  to  dismiss  the  bilL 

Bill  dismissed  with  costs.    No  costs  of  the  appeal 

ENGLISH  NOTE& 

An  analogous  point  will  be  found  considered  in  the  case  of  Haywood 
V.  CopOf  No.  32,  p.  816,  post,  and  the  notes  there. 

The  passage  of  Lord  Cranworth's  judgment  as  to  the  constructiye 
possession  of  mines  (p.  760,  ante)  is  cited  and  applied  by  Amphlbtt,  B., 
in  Low  Moor  Co.  v.  Stanlet/  Coal  Co.  (1876),  33  L.  T.  436,  446,  to  show 
that  the  purchaser  under  an  unenrolled  deed  of  bargain  and  sale  of 


766  MINES  AND  MINERALS. 


Vo.  28.'-L0wii  T.  FotlMrgill,  L.  B.  6  Gh.  108.  — Bvle. 

minerals  who  had  worked  an  upper  seam  was  constractively  in  posses- 
sion of  the  lower  seams  which  were  intended  to  be  included  in  the  pur- 
chase, and  so  could  make  a  title  under  the  Statute  of  Limitations,  3  &  4 
Will.  IV.,  c.  27,  ss.  2,  3,  and  7. 


No.  28.— LEWIS  V.  FOTHERGILL 
(1869.) 

RULE. 

Prima  faciey  and  in  the  absence  of  express  provisions  to 
the  contrary  in  a  lease  of  mines,  the  lessee  is  not  bound  to 
work  by  a  pit  or  shaft  sunk  in  the  land  of  the  lessor,  but 
may  get  the  minerals,  if  he  can,  by  instroke  through  the 
shaft  of  a  mine  on  adjoining  land. 

Lewis  V.  FotbergilL 

L.  R.  5  Ch.  lOS-111. 

i 
[103]  Agreement  —  Mining  Lease.  —  Working  by  Instroke,  —  Irremediable  | 

Damage,  —  Word  "  twn."  —  Evidence  of  Expert  I 

The  owner  of  a  piece  of  land  agreed  to  demise  the  seams  of  coal  under  the 
land  to  the  owners  of  an  adjoining  colliery,  at  a  royalty  on  each  ton  of  coal 
worked,  and  at  a  dead  rent  of  j£500  if  the  royalties  did  not  amount  to  so  much ; 
the  dead  rent  not  to  be  charged  for  the  first  three  years  if  the  necessary  steps 
were  bond  fide  taken  with  ordinary  despatch  to  win  and  work  the  coaL  The 
lease  was  to  contain  a  covenant  by  the  lessee  for  working  the  coal  in  a  proper 
and  workmanlike  manner.  The  lessees  proceeded  to  work  the  coal  by  instroke 
or  headings  from  their  adjoining  colliery,  which  was  situated  to  the  rise  of  the 
seams  agreed  to  be  demised ;  the  lessor  alleged  that  the  lessees  ought  to  sink 
a  pit  and  work  the  coal  from  the  deep,  and  filed  a  bill  to  restrain  them  from 
working  from  the  adjoining  colliery,  and  to  compel  payment  of  the  dead  rent, 
on  the  ground  that  they  had  not  taken  the  necessary  steps  to  win  and  work  the 
coal. 

Hddf  that,  under  the  circumstances,  working  the  coal  by  instroke  was  work- 
ing in  a  proper  and  workmanlike  manner,  and  that  if  the  lessor  had  intended 
to  compel  the  lessees  to  sink  a  pit,  it  should  have  been  provided  for  in  the 
agreement. 

Held,  that  as  the  lessees  were  actually  working  the  coal,  irremediable  damage 
would  not  be  presumed. 

Quare,  as  to  the  meaning  of  the  word  **  win." 

Semble,  that  the  lessor  was  not  entitled  to  the  dead  rent  for  the  first  three 
years. 


R.  C.  VOL.  XVII.]       SECT.  VI.  —  RULES  OF  CONSTRUCTION,  ETC.  767 

Vo.  28.  — Lewif  T.  Fothergill,  L.  B.  5  Gh.  103, 104. 

By  articles  of  agreement,  dated  the  27th  of  April,  1864,  and 
made  between  W.  W.  Lewis,  of  the  one  part,  and  T.  A.  Hankey 
and  B.  Bateman,  trading  under  the  name  of  the  Plymonth  Iron 
Company,  of  the  other  part,  it  was  agreed  that  W.  W.  Lewis  should 
let,  and  the  company  should  take,  for  ninety-nine  years,  the  veins 
and  seams  of  coal  situate  under  a  farm  of  two  hundred  and  fifty 
acres,  called  Troed-y-rhiw,  in  Glamorganshire  (with  certain  excep- 
tions), and  all  mines,  seams,  or  balls  of  iron  ore  under  the  said 
farm,  at  the  rent  or  royalty  of  S^d.  per  customary  ton  of  coal 
worked  or  gotten ;  but  in  case  the  quantity  of  coal  worked  in  any 
year  should  not  amount  at  the  aforesaid  rate  to  the  annual  rent  of 
£500,  then  instead  thereof  the  annual  rent  or  sum  of  £500  should 
be  paid  as  fixed  or  dead  rent,  and  a  further  royalty  of  M.  a  ton 
was  to  be  paid  on  every  ton  of  iron  ore ;  the  dead  rent  of 
£500  not  to  be  charged  for  the  first  *  three  years,  provided  [*  104] 
that  the  necessary  steps  were  hond^Jide  taken  with  ordinary 
despatch  to  win  and  work  the  said  coal,  but  the  royalties  were 
then  to  be  charged  only  on  such  coal  and  minerals  as  should  be 
worked.  The  lease  when  prepared  was  to  contain  power  to  work 
any  other  minerals,  &c.,  over  or  under  the  said  farm  from  any 
adjoining  estate  worked  through  this  estate,  on  payment  of  Id.  per 
ton  for  wayleave.  The  agreement  further  specified  covenants  to 
be  contained  in  the  lease  as  to  keeping  accounts,  and  repairs,  and 
a  covenant  "  for  working  the  said  coal  and  mines  in  a  proper  and 
workmanlike  manner."  It  was  also  agreed  that  the  lessees  might 
make  any  roads  which  might  be  necessary  for  conveying  the  min- 
erals, sink  pits,  drive  headings,  and  do  all  other  acts  and  deeds 
necessary  for  working  the  same.  Provisions  were  also  made  for 
determining  the  lease  if  the  minerals  were  worked  out,  and  for 
renting  surface  land  if  required,  and  for  other  matters  relating  to 
working  the  minerals. 

The  Plymouth  Iron  Company  were  working  certain  coal  pits, 
called  the  South  Duflfryn  Colliery,  situated  to  the  north  of  Troed-y- 
rhiw,  and  had  commenced  to  work  the  coal  under  Troed-y-rhiw 
by  "  instroke  "  from  that  colliery,  and  had  run  headings  from  the 
colliery  under  Troed-y-rhiw. 

The  South  DufFryn  Colliery  was  **  to  the  rise  "  of,  or  above,  the 
seams  of  coal  under  Troed-y-rhiw,  and  W.  W.  Lewis,  the  lessor  and 
plaintiff  in  this  case,  alleged  that  this  was  not  the  proper  way  of 
working  the  coal  under  his  estate  ;  that  the  proper  way  would  be 


768  MINES  AND  MINBBALfl. 


Vo.  88.— L0wii  T.  FoihergUl,  L.  B.  6  Oh.  104, 100. 


to  sink  pits  upon  the  estate  towards  the  southern  side,  the  expense 
of  which  pits  was  variously  estimated  at  £30,000  to  £50,000 ;  that 
working  by  instroke  was  not  proper  or  prudent  unless  a  barrier 
was  left  at  the  boundary  of  the  plaintifiTs  estate,  and  the  headings 
were  driven  so  that  they  could  be  stopped  as  a  protection  against 
water  which  might  come  down.  The  plaintiff  further  allied  that 
coal  was  not  won  unless  adequate  means  of  draining  were  pro- 
vided ;  that  any  system  of  working  the  coal  by  dip  headings  would 
leave  the  Troed-y-rhiw  estate  without  any  provision  for  working 
the  other  seams,  and  render  them  of  less  value,  and  that  the  water 
would  accumulate.;  that  the  period  of  three  years  during  which 
the  dead  rent  was  suspended  was  altogether  unreasonable  if 
[*  105]  the  coal  was  merely  to  be  worked  by  dip  headings  *  from 
the  South  Duffryn  Colliery,  and  that  the  defendants  could 
have  sunk  a  pit  within  the  time,  and  that  under  the  drcumstances 
the  dead  rent  had  become  payable. 

On  the  29th  of  July,  1867,  the  plamtiff  filed  his  bill  against  the 
lessees,  the  defendants,  alleging  as  above  stated,  and  praying  that 
they  might  be  restrained  from  working  by  headings  or  instroke,  or 
otherwise  than  in  a  proper  and  workmanlike  manner,  and  until  an 
adequate  means  of  draining  the  coal  and  minerals  under  the  plain- 
tiff's estate  had  been  provided ;  that  the  defendants  might  be  ordered 
to  pay  the  dead  rent  for  the  three  years ;  and  that  the  articles  of 
agreement  might  be  specifically  performed. 

The  defendants,  by  their  answer,  alleged  that  to  work  by  dip 
headings  was  proper  and  customary,  and  that  they  had  taken  all 
proper  precautions  against  the  flow  of  water;  that  they  would 
never  have  taken  the  lease  if  they  had  been  obliged  to  sink  a  pit ; 
that  they  were  working  the  coal  in  a  proper  manner,  and  that  they 
had  been  at  all  times  ready  to  perform  the  agreement  without  suit 
They  also  contended  that  coal  was  won  when  it  was  reached  and 
could  be  worked. 

Evidence  was  entered  into  on  both  sides  as  to  the  proper 
methods  of  working  coal  in  general  and  this  coal  in  particular,  the 
effect  of  which  appears  from  the  judgments  of  the  Yice-Chancbllor 
and  the  Lord  Chancelloe.  It  appeared  from  the  evidence  of  Mr. 
Overton,  who  was  the  plaintiff's  agent  at  the  time  of  the  prepara- 
tion of  the  agreement,  but  was  no  longer  in  his  employment,  that  he 
and  the  defendants  had  discussed  the  mode  of  working,  and  that  he 
was  aware  that  they  did  not  intend  to  sink  a  pit,  and  that  he  con- 
sidered working  by  instroke  not  improper. 


B.  C.  VOL.  XVn.]       SBCT.  VI.  —  RULBS  OF  CONSTRUCTION,  BTO.  769 

Vo.  88.  — Lewi!  ▼.  FotlMrgm,  L.  B.  6  Oh.  106,  108. 


The  suit  came  to  a  hearing  upon  motion  for  decree  before  the 
Vice-Chancellor  James,  who,  on  the  21st  of  January,  1869, 
dismissed  so  much  of  the  bill  as  prayed  for  an  injunction ;  declared 
that  the  defendants  had  taken  the  necessary  steps  to  win  the  coal 
bond,  fide  and  with  ordinary  despatch;  directed  a  reference  whether 
anything  was  due  for  dead  rent  and  for  other  matters,  and  ordered 
specific  performance  of  the  articles  of  agreement,  and  a  lease  to  be 
executed,  and  ordered  the  plaintiff  to  pay  the  costs  up  to  the 
hearing.^ 

*  The  plaintiff  appealed.  [*  106] 

Mr.  Jessel,  Q.  C,  Mr.  Kay,  Q.  C,  and  Mr.  Marten,  for 
the  plaintiff :  — 

This  is  a  question  of  construction  on  the  agreement.  We  do  not 
say  that  the  pit  must  be  sunk  upon  the  estate,  but  that  there 
ought  to  be  a  pit  sunk  so  as  to  provide  an  independent  system  of 


1  1869.  Jan.  21.  Sir  W.  M.  Jam rs,  V. 
C,  said  that  the  lease  was  a  mere  ordinary 
mining  lease  of  the  coal  under  a  farm  of 
considerable  extent,  and  the  plaintiff's  con- 
tention was,  that  a  covenant  should  be  im- 
plied for  working  the  coal  by  sinking  a  pit 
so  as  to  provide  an  independent  system  of 
drainage  for  the  estate,  although  it  was 
perhaps  not  put  quite  so  strongly  as  that 
on  the  evidence.  His  Honour  oould  not 
nee  what  power  he  had  to  introduce  such  a 
covenant  as  the  plaintiff  asked  for  into  a 
precise  instrument  like  this  agreement, 
more  than  any  other  covenant  which  might 
be  suggested.  There  seemed  to  be  nothing 
to  prevent  the  lessees  from  exercising  their 
legal  right,  and  getting  the  coal  by  any 
lawful  means,  or  from  working  this  col- 
liery in  conjunction  with  any  other  which 
they  might  hold ;  what  they  were  doing 
had  now  become  a  very  common  method 
of  working  mines.  The  plaintiff  contended 
that  the  defendants  had  no  right  to  mine 
by  sinking  to  the  deep  so  as  to  expose  the 
deep  workings  to  be  drowned  out,  and  that 
they  ought  to  provide  independent  means 
of  pumping  on  the  estate  itself;  but  in 
discussing  these  questions  the  Court  of 
Chancery  was  not  a  tribunal  to  determine 
what  was  the  proper  mode  of  working 
a  coal  pit.  The  Court  had  only  to  see 
whether  the  lessees  were  acting  bond  fide, 
and  took  a  reasonable  and  sufficient  amount 
-^  care.  In  this  case  their  proceedings  were 
VOL.  XVII.  —  49 


sanctioned  by  very  eminent  engineers,  and 
with  that  evidence  it  was  impossible  for 
the  Court  to  say  that  the  lessees  were  act- 
ing with  mcUa  fides  or  unskilfully.  The 
owners  of  property  of  this  kind  know  what 
they  are  letting,  and  it  is  for  them  to  stipu- 
late for  any  special  provisions  which  they 
may  think  necessary.  There  was  no  evi* 
dence  that  any  actual  damage  was  done. 

As  to  whether  the  defendants  had  pro- 
ceeded bona  fide  to  win  the  coal,  a  vast 
mass  of  evidence  had  been  entered  into. 
His  Honour's  view  of  the  word  "win" 
was  nearly  that  of  the  defendants,  that 
the  coal  was  won  when  it  was  reached  so  as 
effectually  to  be  worked.  A  great  num- 
ber of  witnesses  stated  that  the  defendants 
had  proceeded  honA  fide^  and  it  was  for  the 
plaintiff  to  prove  mala  fides,  which  he  had 
not  done.  As  to  the  conduct  of  the  plain- 
tiff in  instituting  this  suit,  it  was  proved 
that  his  agent  had  agreed  with  the  lessees 
that  the  proper  mode  of  working  thin  coal 
was  by  headings  to  the  deep,  and  the  plain- 
tiff ought  not  to  have  continued  this*  suit 
when  that  fact  came  to  his  knowledge, 
though  his  Honour  could  not  une  evidence 
to  control  the  agreement.  His  Honour 
must  therefore  make  declarations  the  re- 
verse of  what  was  prayed  in  the  bill,  hut 
would  declare  that  the  agreement  ought  to 
be  performed,  and  a  lease  granted,  to  he 
settled  in  Chambers,  and  the  plaintiff  must 
pay  the  costs  up  to  the  hearing. 


770  MINES  AND  MINERALS. 


Vo.  28.  —  Lewii  ▼.  FothorgiU,  L.  B.  5  Ch.  108-106. 


drainage,  for  unless  that  is  done  the  mine  is  always  in  danger. 

Power  to  sink  a  pit  is  expressly  given  by  the  agreement 
[*  107]  They  *  are  bound  to  work  the  coal  in  the  best  way,  and 

not  to  damage  the  rest  of  the  coal,  and  they  ought  to  leave 
a  barrier  between  their  mine  and  the  plaintiffs  mine  ;  at  all  events 
they  are  bound  to  work  the  coal  so  as  not  to  expose  the  mine  to 
the  chance  of  being  drowned  out.  What  we  require  is  a  pit  deep 
enough  to  drain  this  coal  by  gravitation.  Even  if  they  have  been 
able  to  work  the  coal  up  to  the  present  time,  they  may  still  be  in 
danger  of  being  drowned  out.  All  this  is  so  well  understood,  that 
no  express  provision  in  the  agreement  was  necessary.  The  three 
years  provided  for  show  that  a  pit  was  contemplated.  The  defend- 
ants may  work  these  mines  so  as  to  allow  them  to  be  drowned 
out,  and  then  become  insolvent,  leaving  the  property  useless. 

Sir  Eoundell  Palmer,  Q.  C,  Mr.  Amphlett,  Q.  C,  and  Mr.  Free- 
ling  for  the  defendants,  were  not  called  upon. 

Lord  Hatherley,  L.  C.  :  — 

This  case  seems  to  me  to  be  one  of  the  simplest  description 
when  we  look  at  the  agreement  itself  and  at  the  evidence  adduced, 
which  is  not  conflicting  upon  the  main  points,  namely,  as  to  what 
ought  to  be  the  construction  of  the  words  "  proper  and  workmanlike 
manner."  Of  course  when  we  find  words  like  those,  they  are  open 
to  evidence  as  to  their  meaning,  because  it  is  a  matter,  in  some 
degree,  of  technical  knowledge  as  to  what  is  a  proper  and  work- 
manlike manner ;  and  in  dealing  with  any  special  mode  of  working 
we  must  have  the  testimony  of  those  who  are  experts  as  to  the 
meaning  of  the  words  as  applied  to  the  particular  subject-matter. 

Now  the  bill  is  filed  upon  an  agreement  entered  into  in  1864 
for  the  demise  by  the  plaintiflf  to  the  defendants  of  certain  valu- 
able mining  property.  The  circumstances  of  the  case,  as  far  as 
they  were  known  to  both  parties,  were  these :  that  the  defendants 
had  other  mines  immediately  to  the  rise  of  the  property  which  was 
agreed  to  be  demised,  being  separated  only  by  an  imaginary  line. 
Of  course,  therefore,  one  mine  could  be  worked  from  the  other  if  it 
was  right  and  proper  so  to  do.  But  the  plaintiffs  contention  is, 
that  the  proper  mode  of  working  would  be  to  work  his  coal  just  as 
the  defendants  worked  the  South  Duflfryn  pits ;  namely,  to 
[*  108]  have  a  pit  or  series  of  pits  sunk  to  the  depth  of  the  ♦par- 
ticular vein  which  they  were  disposed  to  work,  so  that 


B.  C.  VOL.  XVII.]       SECT.  VL  —  RULES   OF  CONSTBUCTION,  EXa  771 

Vo.88.  — Lewif  T.  FothArgill,  L.  B.  5  Gh.  106,100. 

whatever  water  accumulated  in  the  process  of  working  the  mine 
could  be  carried  off  into  the  pit  and  pumped  up,  by  which  means 
the  mine  would  be  preserved  from  water ;  and  possibly,  or  I  may 
say  probably,  that  may  be  most  valuable  to  the  lessor  as  being  the 
best  mode  of  having  the  mines  on  his  land  worked.  But  it  is 
clear  upon  the  evidence  that  this  is  not  the  only  mode  of  working 
in  a  proper  and  workmanlike  manner. 

A  proper  and  workmanlike  manner  may  not  mean  the  best  pos- 
sible mode  of  working  for  the  lessor,  but  it  means  in  such  a  manner 
as  shall  not  be  simply  an  attempt  to  get  out  of  the  earth  as  much 
mineral  as  can  be  got  for  the  particular  purpose  of  the  lessee, 
regardless  of  any  ordinary  or  workmanlike  proceeding. 

That  is  the  extreme  contention  on  the  one  side,  and  the  extreme 
contention  on  the  side  of  the  landlord  is  to  say  that  those  words 
"  proper  and  workmanlike  manner "  mean  that  the  lessees  are  to 
take  means  the  most  expensive  possible,  and  the  least  likely  to 
produce  profit  to  themselves,  for  the  express  purpose  of  putting 
the  lessor  in  the  best  possible  position  at  the  time  when  the 
lessees  give  up  the  mine.  Either  one  or  the  other  of  those  views  is 
extreme,  and  we  must  look  to  see  what  the  landlord  has  done  with 
reference  to  protecting  himself  by  the  agreement. 

The  landlord  must  be  supposed  to  have  known  through  his 
agents  what  it  was  he  was  dealing  with,  and  to  have  known  what 
was  the  ordinary  course  of  protecting  himself  if  he  wished  to  be 
protected.  Now  as  to  the  two  systems  in  question,  the  one  of 
working  by  instroke,  and  the  other  of  working  by  means  of  a  pit, 
they  occur  continually  in  mining  leases,  and  provisions  are  often 
made  expressly  upon  that  subject.  It  so  happens  that  in  this  case 
there  is  no  express  provision  one  way  or  the  other ;  but  it  appears 
from  the  evidence  to  be  very  common  where  working  by  instroke 
is  intended,  to  insert  a  provision  that  proper  barriers  shall  be  kept 
to  protect  the  mine  from  the  very  grievance  which  is  now  spoken 
of,  and  there  is  no  such  provision  in  this  agreement. 

But  looking  further  at  the  agreement,  we  find  a  provision  for 
paying  a  wayleave  on  minerals  brought  to  surface  from  the  adjoin- 
ing estate,  thus  contemplating  communication  between  the  two 
mines,  so  that  not  only  is  there  no  provision  against  break- 
ing *  the  barrier,  but  it  is  expressly  contemplated  that  the  [*  109] 
barrier  may  be  broken ;  and  if  the  defendants  are  allowed 
to  break  the  barrier,  what  is  to  prevent  their  working  the  coal  ? 


772  MINES   AND  MINERALS. 


Vo.  88.  —  Lewif  ▼.  Fofh«rgill,  L.  B.  5  Gh.  109, 110. 


The  question  of  the  instroke  always  has  relation  to  the  question 
of  breaking  the  barrier.  If  a  man  has,  by  the  demise,  got  the 
right  of  entry,  you  tell  him  that  you  do  not  prohibit  his  breaking 
the  barrier ;  on  the  contrary,  you  tell  him  that  he  may  pass  the 
barrier,  and  carry  coal  and  other  minerals  worked  from  one  side  to 
the  other.  So  long  as  he  works  the  mine  properly  there  is  nothing, 
as  it  appears  to  me,  to  prevent  his  using  his  right  of  entering 
through  the  barrier  and  working  the  coal  in  that  way. 

Now  the  lessees  say  that  the  pit  would  be  a  very  serious  matter 
to  them.  There  is  no  witness  who  says  that  it  would  cost  less 
than  £30,000 ;  and  the  proposition  that  there  is  an  undertaking 
on  the  part  of  the  lessees  to  expend  £30,000,  about  which  nothing 
is  said  in  the  agreement,  could  only  be  supported  by  showing  that 
there  was  no  other  possible  mode  of  working  this  mine  in  a  proper 
and  workmanlike  manner  than  through  the  medium  of  a  pit 

Then  the  plaintiff  further  claims  £500  a  year  dead  rent  because 
the  lessees  have  not,  as  he  alleges,  taken  the  necessary  steps  band 
fide  to  win  the  coal  with  ordinary  despatch ;  and  he  says,  further 
that  the  lessees  have  begun  to  work  the  coal,  though  they  were 
not  bound  to  do  so,  but  having  begun  to  work  it,  they  have  done 
so  in  an  improper  and  unworkmanlike  manner,  and  that  has  occa- 
sioned a  risk  of  irremediable  injury ;  and  the  plaintiff  asks  that 
the  lessees  shall  perform  their  agreement,  and  if  they  cannot  per- 
form their  agreement,  or  from  any  circumstance  it  cannot  be  per- 
formed, then  that  there  should  be  an  injunction  against  their 
working  the  mine  at  all. 

Now  as  regards  the  demand  for  rent,  the  ordinary  course  which 
this  Court  always  takes  with  reference  to  an  agreement  for  a  lease 
of  this  kind  is  to  say  that  the  plaintiff  shall  have  specific  per- 
formance of  the  agreement,  that  the  deed  shall  be  executed,  and 
shall  be  dated  as  on  the  day  of  the  agreement,  so  that  the  lessor 
can  have  his  action  on  the  covenant  as  soon  as  the  lease  is  com- 
pleted. 

I  do  not  find  that  the  defendants  have  ever  refused  to  execute 
the  deed,  and  at  the  present  moment,  under  the  decree  of 
[*110]  the  *  Court,  they  are  ordered  to  execute  a  proper  counter- 
part, which,  when  done,  would  really  settle  the  whole 
matter  with  reference  to  the  question  whether  or  not  bond  fide 
steps  were  taken  to  win  and  work  the  coal.  There  would  be  a 
right  to  an  injunction  if,  in  working  the  coal,  the  defendants  were 


K.  C.  VOL.  XVII.]        SECT.  VI.  —  RULES  OF  CONSTRUCTION,  ETC.  773 

Vo.  28.  — Lewif  T.  Fofh«rgill,  L.  B.  6  Ch.  110,  111. 

not  doing  it  in  a  proper  and  workmanlike  manner,  and  were  doing 
it  in  such  a  manner  as  was  most  likely  to  produce  irremediable 
injury.  The  only  real  question  now  is  as  to  who  shall  pay  the 
costs  of  the  suit 

Then  as  regards  the  irremediable  damage,  and  the  working  in  an 
improper  and  unworkmanlike  manner,  we  have  first  to  consider 
whether  the  working  by  instroke  instead  of  sinking  from  the  sur- 
face is  contrary  to  the  provisions  of  the  agreement ;  and,  secondly, 
whether,  if  it  be  not  contrary  to  the  provisions  of  the  agreement, 
the  defendants,  in  working  by  instroke  or  dip  headings,  are  work- 
ing in  such  a  mode  as  is  likely  to  occasion  irremediable  damage. 

If  it  were  only  unworkmanlike  it  might  be  left  on  the  terms  of 
the  covenant,  and  damages  might  be  recovered  at  law ;  but  as  far 
as  r^ards  any  injunction  on  account  of  irremediable  injury,  we 
must  consider  that  the  bill  was  filed  nearly  two  years  ago,  and  a 
year  and  a  half  before  the  close  of  the  evidence ;  and  it  appears 
from  the  evidence  that  in  January  last  no  injury  had  been  done. 
The  coal  had  been  worked,  and  the  mine  had  not  been  flooded. 

Further  as  to  the  meaning  of  "a  proper  and  workmanlike 
manner,"  we  have  the  evidence  of  the  agent  who  signed  the  agree- 
ment on  behalf  of  the  plaintiff,  and  he  says  that  he  never  intended 
anything  of  the  kind,  but  actually  the  reverse.  It  is  said,  very 
justly,  that  we  cannot  construe  the  agreement  by  parol  evidence 
as  to  what  the  parties  meant  by  the  words ;  but  the  words  "  proper 
and  workmanlike  manner "  admit  of  the  evidence  of  experts,  for 
no  Court  can  be  so  informed  upon  the  subject  of  mining  as  to 
know  what  is  a  proper  and  workmanlike  manner.  In  that  point 
of  view  nothing  can  be  more  satisfactory  than  to  find  that  the 
two  persons  who  framed  the  agreement  contemplated  the  very 
thing  being  done  that  has  been  done,  it  being  in  their  judgment 
proper  and  workmanlike.  And  it  is  a  bold  measure  on  the  part 
of  a  plaintiff,  in  that  state  of  circumstances,  to  come  into  a  Court 
of  equity  to  enforce  that  which  is  contrary  to  what  his  own  agent 
intended  and  contemplated. 

*  The  only  answer  to  this  given  by  the  plaintiff  is,  that  [*  111] 
his  agent  told  him  a  different  thing,  but  that  he  does  not 
succeed  in  showing. 

The  case,  however,  does  not  rest  there,  because  there  is  a  vast 
mass  of  evidence  before  me,  which  I  cannot  possibly  disregard,  to 
the  effect  that  the  mode  of  working  by  instroke  is  proper  and 


774  MINES  AND  MINERALS. 


Vo.  88.  — LewiiT.FothergiU,  L.  B.  5  Ch.  111.  — Votes. 

workmanlike.  It  is  said  that  there  is  a  conflict ;  and  of  course 
there  is,  and  always  is,  on  a  matter  of  opinion,  but  I  think  the 
difiference  may  be  very  easily  explained  by  taking  the  two  views 
together,  the  landlord's  view  and  the  tenant's  view.  It  is  dis- 
tinctly stated  that  working  by  instroke  is  the  system  almost  in- 
variably practised,  unless  specifically  provided  against,  in  this  and 
other  districts  when  property  such  as  this  is  worked  in  connection 
with  large  collieries ;  and  many  instances  in  the  immediate  district 
are  given  where  larger  properties  than  this  are  so  worked. 

There  is  also  a  dispute  about  what  is  the  meaning  of  the  word 
"  winning."  I  conceive  that  the  coal  is  won  when  it  is  put  in  a 
state  in  which  continuous  working  can  go  forward  in  the  ordinaiy 
way.  It  is  not  when  you  first  dig  down  to  a  seam  of  coal  and 
come  to  water  immediately,  but  when  you  have  got  the  coal  in 
such  a  state  that  you  can  go  on  working  it,  and  make  provision, 
if  provision  is  necessary,  for  sufficient  drainage;  and  in  this  par- 
ticular case  they  say  they  have  got  sufficient  means  of  drainage; 
in  fact,  I  have  not  heard  any  suggestion  that  the  mines  are  being 
drowned  out,  and  I  presume  that  if  it  had  been  so  the  fact  would 
in  some  way  have  been  brought  before  the  Court. 

The  decree  of  the  Vice-Chanoellor  seems  to  me  to  be  perfectly 
correct.  As  to  the  <£500  dead  rent,  it  appears  to  me  that  that  will 
be  properly  and  entirely  provided  for  by  saying  that  the  lease  shall 
be  dated  as  at  the  date  of  the  agreement,  but  no  alteration  in  the 
decree  is  required  for  that  purpose.  The  appeal  will  therefore  be 
dismissed,  with  costs. 

ENGLISH  NOTES. 

The  rule  is  confirmed  by  the  subsequent  decision  of  the  same  author- 
ity, Lord  Hatherley,  L.  C,  in  Jegon  v.  Vivian,  which  is  selected 
as  a  ruling  case  on  another  point,  and  will  be  found  reported  at  length 
upon  both  points  as  No.  36,  843,  post 

AMERICAN  NOTES. 

The  doctrine  of  this  case  is  found  in  I'iley  y.  Moyen,  25  Penn.  State,  897, 
where  it  is  said :  ^*  The  entry  or  drift  to  a  coal-bank  is  merely  a  means  by 
which  the  bank  is  to  be  mined  and  the  coal  taken  out ;  and  when  the  bank 
is  leased,  the  right  to  use  the  entry,  platform,  hoppers,  and  the  priTate  roads 
leading  to  it,  would  seem  very  naturally  to  go  with  it  as  appurtenances.  But 
the  principal  thing  granted  in  the  lease  of  a  coal-bank  is  the  right  to  take  coal 
out  of  it,  and  not  the  passage  to  the  coaL    The  proyision,  therefore,  that  the 


B.  C.  VOL.  XVn.]       SECT.  VI.  —  RULES   OF  CONSTRUCTION,  ETC.  775 

Ho.  98.  — Doe  d.  Haaley  ▼.  Wood,  8  Bam.  &  Aid.  784.  — Bnle. 


lessee  shall  be  treated  as  having  abandoDed  his  lease,  if  he  shall  let  the  bank, 
by  any  fault  of  his,  lie  idle  for  a  year,  when  it  would  yield  coal,  does  not 
apply,  if  he  be  actually  taking  coal  out  of  the  bank  by  any  entry.  The  purpose 
of  the  provision  is  to  prevent  the  lessee  from  using  the  property  so  as  to  pro- 
duce no  profits  to  the  lessor,  and  it  is  not  broken  in  letter  or  spirit  by  the 
adoption  of  new  ways  of  reaching  the  coaL" 


No.  29.  — DOE  d.  HANLEY  v.  WOOD. 
(K.  B.  1819.) 

No.  30.— DUKE  OF  SUTHERLAND  v.  HEATHCOTE. 
(c.  A.  1891.) 

RULE. 

The  grant  by  deed  of  liberty  to  search  for,  work,  and 
dispose  of  minerals  is,  in  effect,  a  license,  and  does  not 
operate  as  a  grant  of  the  minerals  ;  nor  does  it  entitle  the 
licensees  who  are  working  certain  mines  to  bring  ejectment 
against  persons  working  another  mine  within  the  area  cov- 
ered by  the  license.  And  an  exception  of  a  similar  liberty 
in  a  conveyance  of  land  will  not,  without  some  other  indi- 
cation of  the  intention,  operate  as  an  exception  of  the  min- 
erals, or  as  an  exclusive  license. 

Doe  d.  Hanley  y.  Wood. 

2  Bam.  &  Aid.  724-743  (21  R.  R.  469). 

Mines  and  Minerals.  — License  as  distinguished  from  Grant  — Be-entry. 

The  owner  of  the  tee  granted  to  A.,  his  partners,  fellow-adventurers,  [724] 
&c.,  free  liberty  to  dig  for  tin  and  all  other  metals,  throughout  certain 
lands  therein  described,  and  to  raise,  make  merchantable,  and  dispose  of  the 
same  to  their  own  use ;  and  to  make  adits,  &c.,  necessary  for  the  exercise  of  that 
liberty,  together  with  the  use  of  all  waters  and  watercourses,  excepting  to  the 
grantor  liberty  for  driving  any  new  adit  within  the  lands  thereby  granted,  and  to 
convey  any  watercourse  over  the  premises  granted,  habendum  for  twenty-one 
jears ;  covenant  by  the  grantee  to  pay  one-eighth  share  of  all  ore  to  the  grantor, 
and  all  rates,  taxes,  <&c.,  and  to  work  effectually  the  mines  during  the  term ; 
^nd  then,  in  failure  of  the  performance  of  any  of  the  covenants,  a  right  of  re-entry 
was  reserved  to  the  grantor.  Heldf  that  this  deed  did  not  amount  to  a  lease,  but 
contained  a  mere  license  to  dig  and  search  for  minerals,  and  that  the  grantee 


776  MINES  AND  MINERAL& 


Ko.  80.  — Doe  d.  Hanley  ▼.  Wood,  2  Bam.  &  Aid.  724,  726. 

could  not  maintain  an  ejectment  for  mines  lying  within  the  limits  of  the  eet^ 
but  not  connected  with  the  workings  of  the  grantee. 

The  grantee  commenced  working  the  mines,  but  after  some  time  discontinued, 
not  being  prevented  by  the  want  of  water,  or  any  other  inevitable  accident 
The  grantor,  after  some  lapse  of  time,  verbally  authorised  other  persons  to  dig 
for  ore  throughout  part  of  the  land  described  in  the  deed,  and  met  those  persons 
on  part  of  the  land,  and  pointed  out  the  boundaries  within  which  they  were  to 
exercise  the  liberty ;  and  himself  subsequently  entered  into  a  mining  adventure 
with  other  persons,  which  was  carried  on  within  the  limits  described  in  the 
indenture ;  and  afterwards,  in  consideration  of  the  surrender  of  the  first  grant, 
and  of  certain  payments,  demised  the  premises  to  a  lessee  for  twenty-one  years ; 
and  upon  the  execution  of  this  lease,  the  original  deed  was  delivered  up ;  but 
there  was  no  surrender  in  writing.  Held,  that  these  acts  amounted  to  a  re-entry 
by  the  grantor,  inasmuch  as,  unless  referred  to  the  exercise  of  that  right,  they 
would  be  acts  of  trespass  by  him. 

The  special  verdict  set  forth  an  indenture,  dated  March  lst» 
1806,  whereby  Thomas  Carlyon,  being  seised  in  fee  of  the  premises, 
granted  unto  John  Amler  Hanley,  his  partners,  fellow-adven- 
turers, executors,  administrators,  and  assigns,  free  liberty, 
[*725]  license,  power,  *and  authority  to  dig,  work,  mine,  and 
search  for  tin,  tin  ore,  &c.,  and  all  other  metals  and  min- 
erals whatsoever,  throughout  all  that  part  of  the  lands  of  the  said 
Thomas  Carlyon,  commonly  called  Crinnis,  therein  limited  and  de- 
scribed; and  the  tin,  tin  ore,  &c.,  and  other  metals  and  minerals 
there  found,  to  raise,  and  bring  to  grass,  and  there  to  stamp,  spall, 
pick,  dress,  cleanse,  and  make  merchantable,  and  dispose  of,  to 
their  own  use,  at  their  pleasure,  subject  to  certain  reservations; 
and  within  the  limits  of  the  set  thereby  granted  to  dig,  and  make 
such  adits,  shafts,  &c.,  and  to  erect  such  sheds,  engines,  and  other 
buildings,  as  they  should  from  time  to  time  think  necessary  or 
convenient,  for  the  more  effectual  exercise  of  the  liberties  thereby 
granted,  together  with  the  use  of  all  such  water  and  watercourses 
arising  or  running  within  the  limits  of  the  set  thereby  granted,  as 
were  not  in  grant  to  any  other  person  at  that  time  (except  the 
pot-water  belonging  or  running  to  the  tenements  of  Crinnis  and 
Merthen),  with  liberty  to  divert  and  turn  such  waters  and  water- 
courses, except  as  aforesaid,  and  to  cut  any  channels  for  conveying 
the  same  over  any  part  of  the  lands  lying  within  the  limits  of  the 
set,  for  the  purpose  of  more  effectually  and  beneficially  exercising 
and  enjoying  the  liberties  thereby  granted ;  except  unto  the  said 
Thomas  Carlyon,  his  heirs  and  assigns,  and  his  and  their  work- 


R.  0.  VOL.  XVn.]       SECT.  VI. —  RULES   OF  CONSTRUCTION,  ETC.  777 

Ho.  29.  —  Doe  d.  Haaley  ▼.  Wood,  2  Bam.  &  AU.  725-727. 

men,  &c.,  free  liberty  of  driving  any  new  adit  from  any  adit  driven, 
or  thereafter  to  be  driven,  within  the  lands  thereby  granted,  and 
of  quietly  entering  into  and  driving  such  new  adits  through  the 
same,  or  any  thereof,  and  of  sinking  any  shaft  therein  necessary 
and  proper  for  the  driving  of  such  adit,  into  any  other 
lands  of  the  said  T.  Carlyon,  or  into  the  lands  *of  any  [*726] 
other  person,  at  his  and  their  pleasure ;  and  also  except  unto 
the  said  T.  Carlyon,  his  heirs  and  assigns,  full  liberty  to  convey 
any  watercourse  over  the  premises  granted,  or  any  part  thereof,  in 
such  manner  as  he  or  they  respectively  should  think  meet  for  any 
purpose  whatsoever,  doing  no  injury  to  the  workings  of  J.  A.  H., 
his  partners,  &c. ;  to  have,  hold,  use,  exercise,  and  enjoy  the  said 
several  liberties,  licenses,  &c.,  for  the  term  of  twenty-one  years, 
fully  to  be  complete  and  ended.  The  indenture  contained  cove- 
nants for  the  payment  of  an  eighth  share  of  all  ore  to  T.  Carlyon, 
and  that  J.  A.  H.  and  his  partners  would  pay  all  rates  and  taxes, 
and  would  effectually  work  the  premises,  and  support  the  adits,  &c., 
and  then  contained  a  proviso,  that  in  case  of  the  neglect  or  failure 
in  the  performance  of  any  of  the  covenants,  it  should  be  lawful 
for  Thomas  Carlyon,  his  heirs  or  assigns,  upon  the  lands,  or  any 
part  thereof,  in  the  name  of  the  whole  to  enter,  and  the  same  to 
have  again,  repossess,  and  enjoy.  The  special  verdict  then  stated, 
that  the  surface  of  the  lands  was,  during  all  the  time,  occupied  by 
the  said  T.  Carlyon,  and  his  tenants  of  the  surface,  and  that  the 
said  J.  A.  H.,  soon  after  the  execution  of  the  indenture,  dug  for 
tin,  &c.,  and  that  about  the  month  of  July,  1806,  the  said  J.  A.  H. 
made  an  excavation  or  adit  within  the  limits  horizontally  into  the 
earth,  from  the  seashore,  upon  the  level  of  the  sea,  about  seven  or 
eight  fathoms,  when  it  cut  a  vein,  containing  a  small  quantity  of 
copper  ore,  and  that  the  said  J.  A.  H.  then  worked  on  the  course 
of  this  vein  towards  the  west,  and  got  a  small  quantity  of  copper, 
but  none  of  the  copper  was  sold,  and  no  profit  was  made,  nor  were 
any  dues  rendered  to  the  said  T.  Carlyon  in  respect  there- 
of;  *  and  that  J.  A.  H.  afterwards  pointed  out  a  spot  with-  [*  727] 
in  the  limits  where  he  intended  to  sink  a  shaft  down  to 
the  adit,  and  four  pins  were  sunk  in  the  ground  to  mark  out  the 
spot,  but  no  such  shaft  was  ever  made,  nor  any  building  erected, 
or  other  work  done  by  J.  A.  H.  within  the  limits  aforesaid ;  and 
that  J.  A.  H.  did  occasionally  work  within  the  limits,  until  about 
six  weeks  before  he  died,  when,  declaring  that  it  was  not  worth 


778  MINES  AND  MINEBALS. 


Ko.  29.  —  Doe  d,  Huilej  y.  Wood,  2  Barn.  &  Aid.  727,  728. 

while  to  work,  and  that  he  would  not  work  any  more  in  any  of  the 
excavations  or  adits,  he  directed  the  materials  to  be  removed,  and 
that  all  the  timber  that  was  there  should  be  knocked  away  and 
carried  off.  In  pursuance  of  which  direction  the  timber  was 
knocked  away  and  entirely  removed,  excepting  one  piece  of  tim- 
ber of  very  small  value,  which  the  men  refused  to  knock  away  on 
account  of  the  danger  to  themselves  in  doing  so ;  and  the  sea  filled 
up  the  entrance  of  the  excavation  or  adit.  It  then  stated  the 
death  of  J.  A.  H.  intestate,  and  the  grant  of  letters  of  administra- 
tion to  Nevel  Norway,  one  of  his  creditors,  on  which  a  stamp  duty 
had  been  pdd,  on  the  sum  of  £300  only,  being  considerably  less 
than  the  value  of  the  property  sought  to  be  recovered  by  the 
action.  Nevel  Norway  having  died,  letters  of  administration  de 
bonis  non  were  granted  on  the  9th  August,  1815,  to  George 
Hanley,  the  lessor  of  the  plaintiff,  the  only  child  of  J.  A.  H., 
which  were  stamped  by  the  commissioners  of  his  Majesty's  stamp 
duties,  with  a  stamp  duty  of  £3000  upon  security  given,  and  with- 
out payment  of  the  duty  under  the  statute.  Neither  J.  A.  H.  nor 
his  administrators  or  assigns  were  in  any  manner  prevented,  either 

by  water  or  any  other  inevitable  impediment,  from  working 
[*  728]  within  the  limits.     In  October,  1809,  no  person  having  *  in 

the  interval  dug  for  any  ore,  one  William  Brown,  on  behalf 
of  Joshua  Rowe,  and  other  persons,  entered  into  a  negotiation  with 
Thomas  Carlyon  for  a  set  to  be  made  and  granted  by  the  said 
T.  C.  to  the  said  J.  Rowe  and  the  other  persons,  authorising  them 
to  dig  for  tin,  &c.,  and  all  other  metals  and  minerals  throughout 
part  of  the  lands  described  in  the  former  indenture ;  which  set  T. 
Carlyon,  about  11th  October,  1809,  verbally  agreed  to  make,  and 
settled  with  W.  Brown  as  to  the  amount  of  the  dues  to  be  reserved 
on  such  set.  In  the  month  of  November,  1809,  T.  Carlyon  and  W. 
Brown  met  J.  Rowe  and  one  J.  Kroger  on  part  of  the  land  de- 
scribed in  the  former  indenture  ;  and  T.  Carlyon  pointed  out  some 
of  the  boundaries  of  the  set  to  be  made  to  J.  Rowe  and  the  other 
persons,  and  wished  them  success  in  their  undertaking;  and 
shortly  after  this  the  said  J.  Rowe  dug  for  copper,  copper  ore,  &c., 
within  the  limits  of  the  verbal  agreement.  On  the  10th  day  of 
July,  1810,  T.  Carlyon  became  jointly  concerned  and  interested 
with  Oliver  Woodcock,  John  Carne,  and  various  other  persons,  in 
the  mining  and  searching  for  tin  and  tin  ore  in  certain  other  lands, 
part  whereof  lay  within  the  limits  of  the  indenture  of  the  1st  of 


B.  C.  VOL.  XVII.]        SECT.  VI.  —  RULES   OF  CONSTRUCTION,  fiTC.  779 

Ho.  98.  — Doe  d.  Haaley  y.  Wood,  2  Barn.  &  Aid.  728-780. 

March,  1806;  and  upon  that  occasion  a  memorandum  of  agree- 
ment was  made  and  entered  into  by  T.  Carlyon  and  those  persons 
under  which  the  co-adventurers  engaged  therein  dug  for  tin  and 
tin  ore,  &c.,  within  the  limits  of  the  first  indenture,  and  raised  and 
got  a  small  quantity  of  tin  and  tin  ore  therefrom,  and  rendered 
the  dues  payable  in  respect  thereof  to  T.  Carlyon.  On  the  12th  of 
January,  1811,  another  indenture  was  made,  sealed  with  the  seal 
of  T.  Carlyon,  and  by  him  delivered  to  J.  Eowe,  by  which 
said  last-mentioned  *  indenture  it  was,  amongst  other  [*729] 
things,  witnessed,  that  as  well  in  consideration  of  the 
surrender  of  a  certain  grant  or  set  bearing  date  the  1st  day  of 
March,  1806,  made  and  granted  by  the  said  T.  Carlyon  to  the  said 
J.  A.  H.,  being  the  indenture  of  the  1st  March,  1806,  as  in  con- 
sideration of  certain  payments,  the  said  T.  Carlyon  demised  the 
premises  in  question  to  J.  Rowe  for  twenty-one  years.  Upon  the 
said  T.  Carlyon  delivering  this  indenture,  dated  12th  January, 
1811,  to  J.  Rowe,  the  latter,  who  had  previously  got  possession  of 
the  one  bearing  date  1st  March,  1806,  being  the  holder  of  a  sixty- 
fourth  share,  as  a  fellow-adventurer  with  J.  A.  H.  under  it,  de- 
livered up  that  indenture  to  T.  Carlyon,  but  no  surrender  in 
writing  was  ever  made  or  executed  thereof  to  the  said  T.  Carlyon. 
The  limits  mentioned  and  described  in  this  last  indenture,  dated 
January  12th,  1811,  were  not  coextensive  with  the  limits  men- 
tioned and  described  in  the  indenture  dated  March  1st,  1806,  and 
the  works  constructed  by  the  said  J.  Rowe  were  at  a  distance  from 
and  did  not  communicate  with  any  part  of  the  works  done  by  the 
said  J.  A.  H.,  nor  were  in  any  manner  connected  therewith. 
After  the  making  of  the  indenture  dated  January  12th,  1811,  J. 
Rowe  continued  to  dig  for  copper  and  copper  ore,  and  other  metals 
and  minerals  within  the  limits  specified,  and  dug  and  made  a 
mine  therein,  and  got  quantities  of  copper  and  copper  ore  there- 
from, and  disposed  of  the  same,  and  rendered  the  dues  to  T. 
Carlyon.  And  J.  Rowe,  for  the  purpose  of  more  effectually  prose- 
cuting the  works,  erected  a  counting-house,  stables,  and  other 
buildings  within  the  limits.  There  never  was  any  building  within 
the  same  limits  except  those  erected  and  built  by  J. 
Rowe  since  the  *  execution  of  the  last  indenture.  The  sur-  [*  730] 
face  of  the  ground  under  which  the  workings  of  J.  A.  H. 
were  made  was  waste  land  which  was  in  possession  of  the  said 
T.  Carlyon,  and  since  the  execution  of  the  indenture  of  the  12th 


780  MINES  AND   MINERALS. 


Ho.  80.  —Doe  d.  Haaley  y.  Wood,  8  Ban.  &  Aid.  780-787. 

January,  1811,  the  persons  claiming  under  the  same  have,  hj  the 
permission  of  T.  Carlyon,  got  stone  on  the  waste  ground,  and  used 
a  road  over  it,  and  have  paid  money  to  T.  Carlyon  for  the  getting 
of  such  stone  and  the  use  of  the  road.  The  special  verdict  then 
set  out  the  entry  of  the  lessor  of  the  plaintiff,  the  demise,  and  the 
ouster.    The  case  having  been  argued,  the  Court  took  time  for 

consideration. 
[736]       In   the    subsequent  term,  Abbott,  Ch.  J.,  delivered  the 
opinion  of  the  Court. 

This  case,  which  came  before  the  Court  upon  a  special  verdict^ 
was  lately  argued  at  Serjeants'  Inn,  before  my  Brothers  Bayley, 
HoLROYD,  and  myself ;  my  Brother  Best  declining  to  attend,  by 
reason  of  his  having  been  formerly  engaged  as  counsel  in  the 
cause. 

Upon  the  argument,  three  principal  questions  were  made :  first, 
as  to  the  sufficiency  of  the  stamp  upon  the  letters  of  administra- 
tion under  which  the  lessor  of  the  plaintiff  claimed;  secondly, 
upon  the  legal  effect  and  operation  of  the  indenture  of  the  first  of 
March,  1806,  viz.  whether  this  indenture  operated  as  a  demise  of 
the  metals  and  minerals,  so  as  to  vest  in  the  lessee  a  legal  estate 
therein,  during  the  term,  upon  the  conditions  mentioned  in  the 
deed,  or  only  as  a  license  to  work,  and  get  the  metals  and  minerals 
that  might  be  found  within  the  limits  described ;  and,  supposing 
the  indenture  to  operate  as  an  actual  demise  of  the  metals  and 
minerals,  then,  thirdly,  whether  the  acts  done  by  the  grantor,  and 
under  his  authority,  amount  to,  and  are  to  be  considered  as  a  re- 
entry under  the  proviso,  so  as  to  put  an  end  to  the  term  of  years 

created  by  the  deed. 
[*  737]  *  Upon  the  question  relating  to  the  sufficiency  of  the 
stamp,  our  opinion  was  given  at  the  time  of  the  argument 
[to  the  effect  that  the  stamp  was  sufficient  under  the  69th  section 
of  the  Act  55  Geo.  III.,  c.  184],  and  it  is  not  necessary  to  say  more 
on  that  subject.  Upon  the  second  question,  it  was  argued,  on  the 
part  of  the  lessor  of  the  plaintiff,  that  the  indenture  of  the  first 
of  March,  1806,  operated  as  an  actual  demise  of  the  metals  and 
minerals,  and  conveyed  the  legal  estate  in  them  during  the  term, 
as  a  chattel  real.  This  proposition  is  necessary  to  the  maintenance 
of  the  present  action,  because  if  the  deed  operated  as  a  license 
only,  then,  admitting  that  a  party  claiming  under  such  a  deed, 
and  who  should  have  actually  opened  and  worked,  and  should 


B.  C.  VOL.  XVU.]        SECT.  VI.  —  RULES  OF  CONSTRUCTION,   ETC.  781 

Ho.  98.  — ]>oe  d.  Haaley  ▼.  Wood,  1  Ban.  &  Aid.  787,  788. 

be  in  the  actual  possession  of  a  mine,  might,  if  ousted  of  such 
possession,  maintain  an  ejectment,  yet  such  a  right,  supposing  its 
existence  (and  upon  the  question  of  its  existence  it  is  not  neces- 
sary for  us  to  decide),  would  not  sustain  the  present  action, 
inasmuch  as  the  defendant  was  not  shown  to  be  in  possession  of 
any  mine  worked  under  the  deed  in  question,  but  only  of  other 
mines  and  parts  of  the  metals  and  minerals  lying  at  a  distance 
from  the  workings  of  the  grantee  ;  and  which  workings  had  even 
been  long  abandoned  by  him.  It  is  our  opinion  that  this  deed 
operates  as  a  license  only. 

The  doubt  has  arisen  from  the  inaccuracy  of  some  of  its  expres- 
sions, which  seem  to  import  that  the  grantor  supposed  himself  to 
have  done  that  by  the  granting  part  of  the  deed  which  it  is 
insisted  on  by  the  defendant  the  words  of  the  granting  part  do 
not  warrant  But  this  instrument,  though  inaccurate,  is  a  regular 
formal  deed,  containing  all  the  formal  or  orderly  parts  of 
a  deed  of  conveyance,  enumerated  by  Lord  Coke  (in  *  Co.  [*  738] 
Litt  6  a)  except  the  clause  of  warranty ;  viz.,  the  parties 
between  whom  it  is  made  of  the  one  part  and  of  the  other  part; 
a  full  description  of  the  premises  it  purports  to  grant,  with  the 
exceptions  or  reservations  thereout;  the  habendum;  the  redden- 
dum ;  the  covenants  and  proviso  for  re-entry ;  the  in  cujvs  rei  testi- 
monium, and  the  witnesses.  One  of  the  proper  offices  of  the 
premises  or  granting  part  of  a  deed,  as  is  there  stated  by  Lord 
Coke,  is,  "  to  comprehend  the  certainty  of  the  tenements "  to  be 
conveyed.  This  indenture,  in  its  granting  part,  does  not  purport 
to  demise  the  land,  or  the  metals  or  minerals  therein  comprised. 
The  usual  technical  words  of  demising  such  matters  are  well 
known  and  usually  adopted  in  a  formal  deed,  where  the  intent 
is  to  demise  the  land,  or  metals  or  minerals ;  but  the  purport  of 
the  granting  part  of  this  indenture  is  to  grant,  for  the  term  therein 
mentioned,  a  liberty,  license,  power,  and  authority  to  dig,  work, 
mine,  and  search  for  metals  and  minerals  in  and  throughout  the 
lands  therein  described,  and  to  dispose  of  the  ore,  metals,  and 
minerals  only,  that  should  within  that  term  be  there  found,  to 
the  use  of  the  grantee,  his  partners,  &c. ;  and  it  gives  also  further 
powers  for  the  more  effectual  exercise  of  the  main  liberty  granted. 
Instead,  therefore,  of  parting  with,  or  granting,  or  demising  all 
the  several  ores,  metals,  or  minerals,  that  were  then  existing 
within  the  land,  its  words  import  a  grant  of  such  parts  thereof 


782  MINES  AND   MINERALS. 


Ho.  80.  — Doe  d.  Haaloy  y.  Wood,  1  Bun.  &  Aid.  788-740. 

only  as  should,  upon  the  license  and  power  given  to  search  and 
get,  be  found  within  the  described  limits,  which  is  nothing  more 
than  the  grant  of  a  license  to  search  and  get  (irrevocable,  indeed, 
on  account  of  its  carrying  an  interest),  with  a  grant  of 
[•  739]  such  of  the  ore  only  as  should  be  found  and  got,  *  the 
grantor  parting  with  no  estate  or  interest  in  the  rest  If 
80,  the  grantee  had  no  estate  or  property  in  the  land  itself,  or  any 
particular  portion  thereof,  or  in  any  part  of  the  ore,  metals,  or 
minerals  ungot  therein ;  but  he  had  a  right  of  property  only,  as 
to  such  part  thereof  as  upon  the  liberties  granted  to  him  should 
be  dug  and  got.  That  is  no  more  than  a  mere  right  to  a  personal 
chattel,  when  obtained  in  pursuance  of  incorporeal  privileges 
granted  for  the  purpose  of  obtaining  it,  being  very  different  from 
a  grant  or  demise  of  the  mines,  or  metals,  or  minerals,  in  the  land ; 
and  is  such  a  right  only  as,  under  the  circumstances  stated  in  this 
case,  is  not  sufficient  to  support  the  present  action  of  ejectment. 
This,  we  think,  is  the  effect  and  operation  of  the  deed,  considering 
it  with  reference  to  its  granting  part  only ;  and  we  are  fortified  in 
this  opinion  by  the  construction  given  to  similar  words  of  grant  in 
Lord  Mountjoy*8  Case,  Godb.  18,  1  And.  307,  and  4  Leo.  147  ;  and 
in  Chetham  v.  Williamson,  4  East,  4G9 ;  even  if  the  liberty  granted 
be  to  be  considered  a  liberty  to  get,  exclusive  of  the  grantor ;  and 
h  fortiori,  if  it  be,  as  in  those  cases,  to  be  considered  as  not  exclu- 
sive :  that,  however,  is  a  point  which  it  is  unnecessary  for  us  now 
to  decide.  It  was  contended  that,  in  order  to  make  a  demise,  or 
to  pass  such  an  interest  in  the  soil  as  will  support  an  ejectment, 
formal  words  of  demise  need  not  be  used ;  and  that  words  import- 
ing an  intent  in  the  grantor  to  divest  himself  of  the  possession  for 
a  time  and  vest  it  in  another,  operate  in  law  as  a  lease,  whatever 
may  be  their  form ;  and  further,  that  words  showing  such  intent 
appear  in  different  parts  of  this  deed.  The  words  alluded  to  are 
such  as  these,  viz.,  "  the  land  hereby  granted,"  "  the  ground  and 
premises  hereby  granted,"  and  "the  land  or  ground  hereby 
[*  740]  granted,"  which  occur  in  some  of  *  the  clauses  and  cove- 
nants of  the  deed;  and  among  others,  in  the  clause  of 
re-entry,  upon  which  particular  reliance  was  placed.  A  proviso  for 
re-entry  is  in  itself  not  less  applicable  to  a  license  to  dig,  work, 
mine,  and  search  for  metals  and  minerals,  than  to  a  demise  of 
metals  and  minerals,  because,  under  such  a  license,  works  may 
be  effected,  and  a  corporal  possession  had,  which  it  may  be  com- 


B,  C.  VOL.  XVn.]        SECT.  VI.  —  RULES   OF  CONSTRUCTION,   ETC.  783 

Ko.  29.  — Doe  d.  Haaley  y.  Wood,  1  Bam.  &  Aid.  740,  741. 

petent  for  the  grantor  to  resume ;  so  that  the  argument  rests  upon 
the  particular  expressions  used  in  the  deed,  and  not  upon  the 
nature  or  quality  of  the  clauses  or  provisions  in  which  they  are 
used.  These  expressions  may  probably  be  attributed  to  want  of 
care  and  caution  in  the  preparation  of  the  deed ;  but  supposing 
them  not  to  be  attributable  to  inadvertency,  or  supposing  that  we 
should  not  be  justified  in  so  attributing  them,  still  they  can,  in 
our  opinion,  have  no  further  effect  than  to  show  that  the  grantor 
who  used  them  supposed  that  the  soil  or  minerals,  and  not  a  mere 
liberty  or  privilege,  passed  by  his  deed  ;  and  if  the  words  used  in 
the  granting  part  of  the  deed  were  of  doubtful  import,  and  would 
bear  the  construction  for  which  the  lessor  of  the  plaintiff  contends, 
such  doubtful  words  of  grant,  aided  by  the  others,  showing  the 
intent,  might  be  sufficient  to  pass  the  land  or  soil,  or  minerals 
themselves,  and  to  support  an  action  of  ejectment.  But  whatever 
doubts  these  expressions  may  cast,  yet  we  think  they  are  not 
sufficient  to  vary  the  construction  that  must  be  given  to  the  words 
of  the  granting  part  of  this  deed,  as  those  words  are,  in  themselves 
alone,  plain  and  not  of  doubtful  import,  and  as  the  proper  office  of 
that  part  of  the  deed  is,  to  denote  what  the  premises  or  things  are 
that  are  granted,  and  is  the  place  where  the  intent  of  the 
grantor,  and  what  he  has  actually  done  in  that  *  respect,  [*  741] 
is  more  particularly  to  be  looked  for,  recourse  must  be 
had  to  the  proper  and  efficient  part  of  the  deed,  to  see  whether 
he  has  actually  granted  what  it  is  urged  his  expressions  denote 
that  he  supposed  that  he  had  granted ;  for  the  question  properly 
is  not  what  he  supposed  he  had  done,  but  what  he  really  has  done 
by  his  grant  For  these  incorrect  expressions,  the  precise  import 
of  which  he  might  not  accurately  attend  to,  are  not  sufficient  to 
constitute  a  grant,  or  to  operate  so  as  to  extend  the  grant,  by 
converting  the  things  granted  from  incorporeal  to  corporeal,  and 
from  chattels  personal  when  gotten,  into  a  chattel  real,  previously 
to  their  being  gotten,  which  must  be  the  case,  if  we  were  to  adopt 
the  reasoning  on  behalf  of  the  lessor  of  the  plaintiff,  as  to  the 
effect  and  operation  of  the  deed,  and  which  would  carry  the 
rights  of  the  grantee  much  further  than  the  grant  of  a  license  or 
authority  extends. 

Upon  the  third  question  we  are  also  of  opinion  in  favour  of  the 
defendant,  and  think  the  acts  mentioned  in  the  special  verdict  as 
done  by  the  grantor,  and  under  his  authority,  amount  to,  and  are 


784  MINES  AND  MINERALS. 


Ko.  98.  —  Doe  d.  Haaley  y.  Wood,  1  Ban.  &  Aid.  741-748. 

to  be  considered  as,  a  re-entry  under  the  proviso  so  as  to  put  an  end 
to  the  term  created  by  the  deed.  It  is  clear  that  the  grantor  had, 
under  the  proviso,  a  right  to  re-enter  by  reason  of  the  grantee's 
breach  of  covenant  in  not  effectually  working  when  not  prevented 
by  water  or  other  inevitable  impediment.  The  acts  done  either  by 
the  grantor  himself,  or  under  his  authority,  on  part  of  the  lands 
within  the  above  limits,  either  in  consequence  of  his  negotiation 
and  agreement  with  W.  Brown,  or  of  his  agreement  with  Oliver 
Woolcock  and  others,  or  of  his  indenture  made  to  J.  Howe, 
[*  742]  amount  in  law,  we  think,  *  to  a  re-entry  and  to  a  determi- 
nation of  the  above  grant  of  the  1st  of  March,  1806.  Those 
acts,  if  done  by  a  stranger,  or  other  person  having  no  right  or 
authority  to  enter,  would  be  wrongful,  and  so  they  would  be  in  the 
present  case  though  done  by  the  grantor,  or  under  his  authority,  if 
the  above  grant  can  be  considered  to  have  operated  as  a  demise 
either  of  the  soil  or  of  all  the  ore,  metals,  and  minerals  within  the 
described  limits,  unless  those  acts  be  deemed  to  be  in  law  an  entry 
by  the  grantor,  and  a  remitter  of  him  to  his  former  estate  by  a 
determination  of  his  grant ;  and  the  authorities  show  that  those 
acts  must  be  deemed  to  be  in  law  such  an  entry  and  remitter.  In 
Plowden,  92,  it  appears  that  if  a  person  having  a  right  of  entry 
has  done  any  act,  so  that  the  disseisee  might  have  an  action  against 
him  if  he  was  a  stranger,  the  law  saith  that  rather  than  he  shall  be 
punished  it  shall  be  an  entry  and  remitter  to  him.  So  in  Co.  Litt 
65,  entry  into  land  without  the  consent  of  the  lessee,  and  cutting 
down  a  tree  where  the  trees  were  not  excepted  out  of  the  demise, 
are  considered  to  be  an  implied  ouster,  and  a  determination  of  the 
will,  for  that  it  would  otherwise  be  a  wrong  in  him ;  and  a  lessor's 
putting  in  his  beasts  to  use  the  common  appendant  is  also  consid- 
ered as  a  determination  of  the  will.  And  in  Co.  Litt  245  b  the 
mulier's  coming  upon  the  ground  upon  his  own  head,  and  cutting 
down  a  tree,  and  digging  the  soil,  or  taking  any  profit,  are  stated 
to  be  interruptions,  for  (the  book  says)  "  rather  than  the  bastard  shall 
punish  him  in  an  action  of  trespass,  the  act  shall  amount  in  law  to 
an  entry.  So  it  is,  if  the  mulier  put  any  of  his  beasts  into  the 
ground,  or  command  a  stranger  to  put  on  his  beasts,  these  do 

amount  in  law  to  an  entry." 
[*  743]      *  It  was  urged  on  the  part  of  the  lessor  of  the  plaintiff 
that  the  words  of  the  deed  of  the  12th  of  January,  1811, 
by  which  that  deed  is  expressed  to  be  made  partly  in  consideration 


R.  C.  VOL.  XVn.]      SECT.  VI. — RULES   OF  CONSTRUCTION,  ETC.  785 

Ko.  80.  —  Ihika  of  SatliorUmd  ▼.  HMthooto,  IMS,  1  Ch.  475,*  476. 

of  the  surrender  of  the  grant  of  1806,  together  with  the  fact  of  the 
actual  receipt  of  the  deed  of  that  date  by  Mr.  Carlyon,  from  Mr. 
Rowe,  into  whose  hands  it  had  come,  showed  that  none  of  the  acts 
done  by  the  grantor  were  or  were  intended  to  be  a  re-entry  under 
the  proviso  contained  in  the  deed  of  1806.  But  we  think  such  an 
effect  cannot  properly  be  given  to  those  circumstances,  and  that 
they  ought  to  be  considered  only  as  matters  of  caution,  intended  to 
preclude  the  question  which,  unfortunately,  has  since  been  raised. 
If,  therefore,  the  grant  in  question  can  be  considered  to  have  been 
a  demise  of  the  land,  or  of  all  the  ores,  metals,  and  minerals  within 
the  limits  described,  yet  it  was  determined  by  the  above  acts  done 
by  the  grantor,  or  under  his  authority,  amounting  in  law  to  a  re- 
entry; in  which  case  the  present  action  of  ejectment  cannot  be 
maintained.  For  these  reasons,  the  judgment  of  the  Court  must 
be  for  the  defendant  Judgment  for  the  defendarU, 

Duke  of  Sutherland  y.  Heathcote. 

1S92. 1  Ch.  475-486  (8.  c.  61  L.  J.  Ch.  248;  66  L.  T.  210). 

Deed,  —  Constructicm.  —  BeaervaUon  of  Liberty  to  get  Minerals.  —  No  [475] 

Exclusive  Right 

Earl  G.  and  Yisoonnt  T.,  the  plaintiff's  predecessors  in  title,  having  a  general 
power  of  revocation  and  new  appointment  over  lands  of  which  they  were  respec- 
tively tenant  for  life  in  possession  and  tenant  for  life  in  remainder,  by  a  deed  of  ex- 
change in  1788  appointed  and  granted  the  lands  to  the  defendant's  predecessor  in 
title  in  fee,  saving  and  reserving  nevertheless  to  Earl  G.  and  Viscount  T.,  their 
heirs  and  assigns,  full  and  free  liberty  to  get  the  coal  and  minerals  which  should 
be  found  within  the  lands.  The  minerals  were  never  worked  under  this  reserva- 
tion by  the  plaintiff  or  his  predecessors  in  title.  In  1865  the  then  owner  of  the 
lands  demised  the  coal  under  part  of  them  to  persons  whose  interest  became 
vested  in  the  defendants  B.  &  B. ;  and  in  1877  the  defendant  H.,  who  had  suc- 
ceeded to  the  ownership  of  the  lands,  demised  the  coal  under  another  part  to 
the  plaintiff.  Some  years  after  this  the  plaintiff  first  became  aware  of  the 
reservation  in  the  deed  of  1 783,  and  brought  his  action  to  establish  his  right  to 
the  minerals,  to  restrain  the  defendants  from  working  them,  and  to  have  the 
lease  of  1877  rectified  or  set  aside. 

Hddj  that  the  reservation  in  the  deed  of  1 788  did  not  operate  as  an  exception 
of  the  minerals,  but  only  as  a  grant  by  the  defendants'  predecessor  in  title 
of  a  right  to  work  them ;  that  there  was  nothing  to  show  *that  this  right  [*476] 
was  to  be  exclusive;  and  that,  therefore,  it  did  not  prevent  the  landowner 
from  working  them,  provided  he  did  not  disturb  the  grantee  in  any  working 
which  the  grantee  was  carrying  on  ;  and  that  the  defendants,  therefore,  had  not 
infringed  the  plaintiff's  rights. 
VOL.  XVII.  —  60 


786  MINES  AKD  MINERALS. 

Ho.  80.  ~  Ihika  of  Suthsrland  ▼.  Hoathoote,  1892, 1  CtL  476,  477. 

Held,  further,  that  the  lease  of  1877  could  not  be  rectified,  as  there  was  no 
common  mistake,  and  that  it  could  not  be  set  aside,  as  the  plaintiff  was  not  pre- 
pared to  give  up  possession  of  the  property  comprised  in  it. 


This  was  an  appeal  by  the  plaintiflf  from  a  judgment  of  Mr.  Jus- 
tice Vaughan  Williams,  dismissing  the  action. 

In  1781  certain  estates  were  settled  on  Earl  Gower  for  life,  with 
remainder  to  Viscount  Trentham  for  life,  with  divers  remainders 
over,  subject  to  a  joint  power  of  revocation  and  new  appointment 
given  to  them.  In  October,  1783,  in  order  to  eflfectuate  an  exchange 
with  Mr.  Heathcote,  they,  by  a  deed  which  recited  that  they  were 
seised  in  fee  of  certain  lands,  and  Mr.  Heathcote  of  certain  other 
lands,  and  that  they  had  agreed  to  exchange  them,  and  then  recited 
the  settlement  of  1781,  granted  and  appointed  a  part  of  the  said 
lands  to  Mr.  Heathcote,  his  heirs  and  assigns :  "  Saving  and  reserv- 
ing nevertheless  to  the  said  G.,  Earl  Gower,  and  G.  G.,  Lord 
Viscount  Trentham,  and  to  their  heirs  and  assigns,  full  and  free 
liberty  by  all  necessary  ways  and  means  to  search  for,  get,  dig, 
drain,  and  carry  away  the  coal,  ironstone,  and  minerals  which  may 
or  shall  be  found  within  the  several  lands  hereby  granted  and 
exchanged  from  them,  the  said  Earl  Gower  and  Lord  Viscount 
Trentham,  to  the  said  J.  E.  Heathcote,  his  heirs  and  assigns,  and 
also  to  drive  any  sough,  level,  or  gutter  through  the  same  lands  to 
any  other  lands  or  grounds  of  them  the  said  Earl  Gower  and  Lord 
Viscount  Trentham,  or  either  of  them,  making  satisfaction  for  all 
damages  to  be  done  or  occasioned  by  the  use  or  exercise  of  any  of 
the  privileges  aforesaid ;  to  have  and  to  hold  all  and  singular  the 
said  messuage  or  tenement  lands  and  premises  (saving  and  except 
as  aforesaid)  unto  the  said  J.  E.  Heathcote,  his  heirs  and  assigns, 
to  the  only  proper  use  and  behoof  of  the  said  J.  E.  Heathcote,  his 

heirs  and  assigns,  for  ever." 
[*  477]       *  The  plaintiif  was  the  successor  in  title  of  Earl  Gower 
and  Viscount  Trentham.     The  defendant  Heathcote  was 
the  successor  in  title  of  Mr.  Heathcote,  the  party  to  the  deed  of 
1783. 

Neither  the  plaintiff  nor  his  predecessors  in  title  had  ever 
worked  the  mines  under  the  above  reservation,  the  existence  of 
which  had  been  forgotten. 

In  1865,  the  immediate  predecessor  in  title  of  the  defendant 
Heathcote  granted  a  lease  of  part  of  the  mines  under  this  property 


IL  C.  VOL.  XVII.]      SECT.  VI.  —  RULES  OF  CONSTRUCTION,  ETC.  787 

Ho.  80.  —  Ihika  of  8athorUmd  y.  Hoathooto,  1898, 1  Ch.  477,  478. 

to  a  lessee,  whose  interest  was  now  vested  in  the  defendants,  Blaic 
&  Bird. 

On  the  4th  of  January,  1877,  the  defendant  Heathcote  granted 
to  the  plaintiflf  a  lease  for  forty  years  of  the  mines  under  the  rest 
of  the  property. 

In  1890,  the  plaintiff  brought  his  action  against  Heathcote  and 
Blair  &  Bird,  asking  for  a  declaration  that  he  was  entitled  to  the 
mines  under  the  lands  which  his  predecessors  in  title  had  conveyed 
by  the  exchange  deed  of  1783 ;  for  an  injunction  to  restrain  the 
defendants  from  working  them,  and  to  have  the  lease  of  the  4th 
of  January,  1877,  set  aside  or  rectified.  Mr.  Justice  Vaughan 
Williams  having  dismissed  the  action,  the  plaintiff  appealed. 
The  arguments  as  to  the  Statute  of  Limitations  are  omitted,  as 
the  Court  did  not  pronounce  any  judgment  on  that  point. 

Rigby,  Q.  C,  Neville,  Q.  C,  and  Hadley,  for  the  appellant,  the 
Duke  of  Sutherland :  — 

The  recital  in  the  deed  of  exchange  of  the  30th  of  October, 
1783,  that  the  grantors,  Earl  Gower  and  Viscount  Trentham,  were 
seised  in  fee,  operated  as  an  appointment  by  them  in  their  own 
favour,  and  gave  them  the  fee  in  the  lands  comprised  in  that  deed, 
including  the  minerals  thereunder:  Poulaon  v.  Wellington,  2  P. 
Wms.  633 ;  Bowbotham  v.  Wilson,  8  H.  L.  C.  348  [ante,  p.  647] ; 
and  the  deed  then  proceeded  upon  the  footing  that  the  grantors 
were  absolute  owners  —  using  language  appropriate  to  grantors  in 
fee,  and  not  to  appointors.  The  minerals  being  thus  vested  in  the 
Earl  and  the  Viscount,  the  liberty  of  getting  and  working  such  min- 
erals was  by  the  same  deed  reserved  to  them,  their  heirs  and  as- 
signs. The  decision  we  appeal  from  is  that  this  was  only 
a  license  by  Mr.  John  *  E.  Heathcote,  with  whom  the  [*  478] 
exchange  was  efifected,  to  get  such  minerals  under  the 
lands  as  he  did  not  himself  take. 

[Fry,  L.  J.  —  Primd  facie  liberty  to  do  a  thing  is  not  exclusive 
liberty.] 

Even  assuming  that  this  is  not  an  exception  but  a  license,  the 
liberty  is  not  for  a  limited  quantity  or  a  limited  time.  It  is  not  a 
liberty  to  get  coal,  but  to  get "  the  "  coal.  Duke  of  Hamilton  v.  Dunr 
lop,  10  App.  Cas.  813,  where  the  owner  of  lands  conveyed,  reserving 
the  "  liberty  of  working  the  coal,''  is  an  authority  which  goes  the 
whole  length  of  our  contention  on  this  point,  and  on  it  we  strongly 
rely.     The  *'  liberty  "  was  in  fact  a  grant,  and  a  grant  of  minerals 


788  MINES  AKD   MINERALS. 


Ko.  80.  —  Ihika  of  Snthttlaiid  ▼.  Heatlioote,  1892, 1  Ch.  47^-480. 

involves  that  which  is  necessary  to  make  the  grant  efficacious, — 
i.  e.,  the  power  for  the  grantee  to  get  them.    JBarl  of  Cardigan  v. 

ArmUage,  2  B.  &  C.  197  (26  R  R  313). 
[479]  Treating  the  transaction  as  a  whole,  it  was  a  patting 
of  the  fee  in  the  Earl  and  the  Viscount,  in  order  that  it  might 
be  partially,  and  partially  only,  taken  out  of  them ;  for  it  is  plain  that 
they  did  not  intend  the  minerals  to  go  to  J.  £.  Heathcote,  and  the 
intention  governs  everything.  "  Saving  "  means  the  same  thing  as 
**  excepting  "  —  that  is,  prceter  or  salvo. 

Lord  Mountjoy's  Com  was  relied  on  by  counsel  for  the  defendant 
in  the  Court  below,  and  they  cited  it  from  the  reports  of  Leonard  (4 
Leon.  147)  and  Godbolt  (Gk)db.  17),  as  an  authority  that  a  grant  in 
fee  of  a  liberty  to  get  coals  cannot  confer  an  exclusive  right  to  such 
coals.  But  the  only  authentic  report  of  the  case  is  that  in  Ander- 
son (1  And.  307).  Lord  Mountjoy*8  Case  was  decided  in  1582.  An- 
derson, Ch.  J.,  the  author  of  those  reports,  was  himself  one  of  the 
Judges  who  took  part  in  its  decision ;  and  in  his  report  of  the  case 
there  is  nothing  to  show  that  it  can  properly  be  used  in  support 
of  any  such  proposition. 

As  to  our  never  having  worked  the  minerals,  mere  non-exercise 
of  a  right  is  not  abandonment  of  it ;  and  our  claim  is  not  barred 
by  laches  or  delay,  or  by  the  Statute  of  Limitations.  Seaman  v. 
Vaudrey,  16  Ves.  390  (p.  585,  a7Ue)\  Smith  v.  Uoyd,  9  Ex.  562; 

Neill  V.  Duke  of  Devonshire,  8  App.  Cas.  135. 
[480]      Sir  H.  Davey,  Q.  C,  Haldane,  Q.  C,  and  Decimus  Sturges, 
for  the  defendant  Heathcote:  — 

The  recital  that  Earl  Gower  and  Viscount  Trentham  were  seised 
in  fee  did  not  act  as  an  estoppel,  because  the  true  state  of  the 
title  appears  by  the  subsequent  part  of  the  deed.  Nor  did  the 
recital  operate  as  an  informal  appointment  to  themselves,  for  that 
would  have  been  contrary  to  the  intention  of  the  parties  as  ex- 
pressed in  the  deed.  Therefore,  the  conveyance  to  J.  E.  Heathcote 
could  not  operate  as  a  grant ;  it  could  only  take  effect  as  an  ap- 
pointment to  him,  and  the  saving  of  liberty  to  dig  minerals  was 
a  regrant  by  him  to  the  appointors  of  a  license  to  dig.  The 
appointee  could  not  regrant  the  minerals  themselves,  for  minerals 
did  not  lie  in  grant:  he  could  only  regrant  a  license  which  is 
incorporeal  The  word  "  reserved  "  is  an  indication  that  the  thing 
referred  to  was  newly  created  out  of  the  tenement  conveyed,  and  not 
originally  a  part  of  it    Co.  Litt,  pages  47  a,  143  a.    A  license  is  never 


R.  C.  VOL.  XVII.]      SECT.  VI. — RULES  OF  CONSTRUCnON,  ETC.  789 

Ho.  80.  —  Dnke  of  Sutherland  ▼.  Hoathoote,  1892, 1  Ch.  480,  481. 

exclusive,  unless  it  is  expressed  to  be  so.  It  only  makes  lawful  that 
which  otherwise  would  have  been  a  trespass.  Wickam  v.  Hawker, 
7  M.  &  W.  63.  It  has  always  been  held  that  if  a  man  grants  to  an- 
other license  to  cut  timber  or  dig  minerals  on  his  land,  the  grantee 
may  take  all  that  he  can,  but  the  owner  has  also  a  right  to  cut 
and  dig  as  he  pleases.  Lord  Mountjojfs  Case,  1  And.  307,  4  Leon. 
147 ;  Chetham  v.  WilliaTiisan,  4  East,  469 ;  Carr  v.  Benson,  L.  R.  3 
Ch.  524 ;  Newly  v.  Harrison,  1  J.  &  H.  393 ;  Denison  v.  Holliday, 
1  H.  &  K  631.  Duke  of  Hamilton  v.  Dunlop,  10  App.  Cas.  813, 
was  decided  according  to  Scotch  law,  and  does  not  apply. 

•  There  is  nothing  in  this  deed  from  which  a  covenant  [*  481] 
not  to  give  licenses  to  any  one  else  can  be  inferred. 
Bailey  v.  Stephens,  12  C.  B.  (N.  S.)  91,  does  not  support  the  plain- 
tiff's case,  and  Lee  v.  Stevenson,  E.  B.  &  K  512,  has  no  bearing 
upon  it.  Doe  v.  Wood  (p.  775,  avie)  has  never  been  overruled, 
and  is  in  our  favour. 

[BowEN,  L.  J.,  referred  to  Wilson  v.  Mackreth,  3  Burr.  1824.] 

That  case  turned  upon  the  ground  that  the  plaintiff  had  a  right 
of  property  in  the  turf  as  if  there  had  been  a  grant  of  it ;  and 
Harker  v.  Birkbeck,  3  Burr.  1556,  is  similarly  explained.  We  say, 
then,  that  we  were  at  perfect  liberty  to  work  the  mines  so  long 
as  we  did  not  interfere  with  workings  carried  on  by  the  plaintiff, 
and  we  have  not  interfered  with  the  license  given  him  by  the  deed. 

[They  further  contended  that  the  plaintiff  was  barred  by  acqui- 
escence and  the  Statute  of  limitations.] 

Eashleigh,  for  Blair  &  Bird,  relied  on  the  plaintiff's  acquiescence 
in  the  lease  of  1865  and  on  the  Statute  of  Limitations. 

Rigby,  in  reply,  cited  Co.  Litt.  (page  270  b)  upon  the  point  that 
a  release  at  common  law  will  not  operate  to  enlarge  an  estate ; 
and  Sheppard's  Touchstone  (page  298),  as  to  an  exchange  operating 
as  a  grant. 

1892,  Jan.  27.  The  Lord  Justice  Lindley  now  delivered  the 
judgment  of  the  Court  (Lindley,  Bowen,  and  Fry,  L.  JJ.)  :  — 

This  is  an  appeal  from  the  decision  of  Mr.  Justice  Vaughan 
Williams,  reported  in  [1891]  3  Ch.  504.  Many  questions  were 
argued  on  the  appeal ;  but  the  main  question,  on  which  everything 
else  turns,  is  the  effect  of  the  deed  of  1783.  That  deed  effected 
an  exchange  of  lands  between  the  then  Earl  Gower  and  his  son. 
Viscount  Trentham,  on  the  one  side,  and  Mr.  Heathcote  on  the  other. 


79Q  MINES  AND  MINERALS. 


Ko.  ao.  — Dvkft  of  Sutherland  ▼.  Heathoote,  1882, 1  Ch.  481,  48S. 

The  lands  exchanged  were  in  the  county  of  Stafford,  and  in  a 
mineral  district.     No  mines  were  worked  in  or  under  them,  but 

coal  was  got  from  mines  in  the  neighbourhood. 
[*  482]      *  Mr.  Heathcote  was   the  owner  in  fee  of  the  lands 

which  he  gave  in  exchange ;  but  Earl  Gower  and  his  son 
were  not  owners  in  fee  of  the  lands  they  gave  in  exchange.  They 
had  a  joint  power  of  appointing  those  lands  in  fee ;  but,  subject  to  that 
power,  the  lands  were  settled  by  a  deed  of  1781  on  Earl  Gower  for 
life,  with  remainder  to  Viscount  Trentham  for  life,  with  remainder  to 
his  first  and  other  sons  in  tail  male,  with  diverse  remainders  over, 
and  there  were  terms  subsisting  for  purposes  of  raising  money. 

That  being  the  position  of  affairs,  the  deed  of  1783  was  executed. 
Mr.  Heathcote  conveyed  his  lands  to  the  Earl  and  Viscount  as  joint 
tenants  in  fee,  and  reserved  no  minerals  nor  any  right  to  work 
them.  The  Earl  and  Viscount  conveyed  their  lands  to  Mr.  Heath- 
cote in  fee,  dnd  reserved  to  themselves  and  their  heirs  a  right  to 
work  the  minerals  under  them.  By  this  deed,  which  recited  the 
settlement  of  1781,  and  the  power  of  revocation  and  new  appoint- 
ment given  by  it  to  the  Earl  and  Viscount,  it  was  witnessed  that 
the  Earl  and  Viscount, "  in  order  to  enable  them  legally  to  make  the 
said  exchange  to  and  with  the  said  J.  E.  Heathcote  as  aforesaid,  by 
virtue  of  the  power  reserved  and  given  to  them  in  and  by  the  said 
recited  proviso  as  aforesaid,"  revoked  and  determined  the  uses  of 
the  settlement,  so  far  as  they  related  to  the  property  intended  to 
be  given  in  exchange  to  Mr.  Heathcote.  And  it  was  further  wit- 
nessed that  the  Earl  and  Viscount,  in  consideration  and  pursu- 
ance of  the  said  exchange,  and  for  divers  other  good  and  valuable 
considerations,  exchanged,  granted,  bargained,  sold,  aliened,  trans- 
ferred, limited,  appointed,  and  confirmed  to  Mr.  Heathcote,  his 
heirs  and  assigns,  the  property  therein  described,  and  all  the  estate, 
right,  title,  interest,  claim,  and  demand  whatsoever  of  the  said 
Earl  Gower  and  Viscount  Trentham,  or  either  of  them,  in  and  to 
the  said  lands  and  premises,  "  Saving  and  reserving,  nevertheless, 
to  the  said  Granville,  Earl  Gower  and  Greorge  Granville,  Lord 
Viscount  Trentham,  and  to  their  heirs  and  assigns,  full  and  free 
liberty,  by  all  necessary  and  convenient  ways  and  means,  to  search 
for,  get,  dig,  drain,  and  carry  away  the  coal,  ironstone,  and  other 
minerals  which  may  or  shall  be  found  within  the  said  several  lands 
hereby  granted  and  exchanged  from  them,  the  said  Earl  Gower  and 
Lord  Viscount  Trentham,  to  the  said  J.  E.  Heathcote,  his  heirs 


R.  0.  VOL.  XVn.]      SECT.  VL  — RULES  OF  CONSTRUCTION,  ETC.  791 

Ko.  ao.  —  Dvkft  of  SntherUad  ▼.  Haathoote,  1883, 1  Ch.  483,  484. 

[*  483]  and  assigns,  and  also  to  drive  *  any  sough,  level,  or  gutter 
through  the  same  lands  to  any  other  lands  or  grounds  of 
them  the  said  Earl  Gower  and  Lord  Viscount  Trentham,  or  either 
of  them,  making  satisfaction  for  all  damages  to  be  done  or  oc- 
casioned by  the  use  or  exercise  of  any  of  the  privileges  aforesaid, 
to  have  and  to  hold  all  and  singular  the  said  messuage  or  tenement 
lands  and  premises  (saving  and  except  as  aforesaid)  unto  the  said 
J.  E.  Heathcote,  his  heirs  and  assigns,  to  the  only  proper  use  and 
behoof  of  the  said  J.  E.  Heathcote,  his  heirs  and  assigns,  for  ever." 

In  order  to  understand  the  effect  of  this  deed,  it  is  necessary 
to  carry  our  minds  back  to  1783,  and  construe  it  as  such  instru- 
ments were  construed  at  that  date.  We  must  not  forget  that  in 
those  days  a  grant  did  not  pass  lands,  mines,  or  minerals,  although 
it  might  confer  a  right  to  work  them. 

A  right  to  work  mines  is  something  more  than  a  mere  license : 
it  is  a  profit  it  prendre^  an  incorporeal  hereditament  lying  in  grant. 
The  distinction  between  a  license  and  a  profit  A  prendre  was 
pointed  out  in  Wickham  v.  Hawkevy  7  M.  &  W.  78,  a  leading  case 
on  rights  of  sporting. 

Counsel  for  the  appellant  contended  that  the  reservation 
clause  ought  to  be  construed  as  an  exception  of  the  mines  and 
minerals.  But  this,  we  think,  would  be  to  violate  well-settled 
rules  of  conveyancing.  The  words  used  are  not  apt  for  the  pur- 
pose. No  conveyancer  intending  to  except  mines  and  minerals 
from  a  conveyance  of  lands  would  express  his  intention  by  re- 
serving a  liberty  to  get  minerals.  If,  indeed,  it  were  plain  from 
recitals  or  other  clauses  in  the  deed  that  an  exception  was  in- 
tended, possibly  effect  might  be  given  to  it.  But  here  there  is 
nothing  aliunde  to  show  what  was  intended,  and  the  intention 
can  only  be  inferred  from  the  wording  of  the  clause  in  question. 
This  observation  is  also  the  answer  to  the  argument  based  upon 
the  Scotch  case  of  Duke  of  Hamilton  v.  Dunlop,  10  App.  Cas.  813. 
Unless  a  clear  intention  to  except  the  minerals  can  be  established, 
that  case  is  of  no  assistance.  The  fact  that  the  parties  to  the  deed 
of  1783  were  eflfecting  an  exchange  does  not  make  their  intention 
as  to  the  minerals  plainer  than  the  words  in  which  they  have 
expressed  it.  That  Mr.  Heathcote  did  not  intend  to  ex- 
cept the  *  minerals  from  the  land  which  he  conveyed,  nor  [*  484] 
tx>  reserve  any  right  to  get  minerals  under  it,  is  plain ;  but 
there  is  nothing  to  warrant  the  inference  that  he  intended  to  ex- 
change his  lands  for  the  surface  only  of  the  lands  conveyed  to  him. 


792  MINES  AND  MINERALS. 


Vo.  80.— Dvkft  of  SnthorUad  ▼.  HeatliMte,  1898,  1  Ch.  484,  486. 

An  exception  of  the  mines,  moreover,  would  leave  them  out  of 
the  property  conveyed  by  Earl  Gower  and  his  son,  and  would 
leave  them  subject  to  the  uses  of  the  settlement  of  1781^  which 
clearly  was  not  the  intention  of  any  one.  Mr.  Eigby's  answer  to 
this  was  that  the  clause  might  be  read  as  a  revocation  of  those 
uses,  and  a  new  appointment  of  the  mines  to  the  Earl  and  his 
son  as  joint  tenants  in  fee.  But  this,  again,  raises  the  question 
whether  they  intended  anything  of  the  sort  Having  no  guide 
to  what  they  intended  except  the  words  of  the  reservation  itself, 
we  cannot  force  those  words  to  the  extent  necessary  in  order  to 
make  them  amount  to  an  exception  or  reservation  or  valid  regrant 
of  the  mines  and  minerals  in  the  sense  of  so  much  land. 

We  come,  therefore,  to  the  conclusion  that  what  was  reserved 
to  the  Earl  and  his  son  was  full  and  free  liberty  to  work  the 
mines  under  the  lands  conveyed  by  them.  They  reserved  a 
profit  it  prendre,  an  incorporeal  hereditament,  not  a  mere  per- 
sonal revocable  license.  But  then  the  question  arises  whether 
this  right  so  reserved  to  them  was  an  exclusive  right.  The 
persons  who  claim  under  the  Earl  and  Viscount  have  never 
attempted  to  exercise  this  right ;  the  defendants  have  never  denied 
the  plamtiflPs  right  to  work  the  mines,  nor  obstructed  him  in  any 
way.  The  plaintiff,  however,  says  that,  whether  he  wants  to 
work  the  mines  or  not,  the  defendants  have  no  right  to  work 
them,  and  that  by  working  them  the  defendants  have  infringed 
the  plaintiff's  rights.  Now,  putting  all  legal  subtleties  and  tech- 
nicalities aside,  this  is  in  substance  a  claim  by  the  plaintiff  to  the 
mines  in  question ;  and  if  his  right  to  the  mines  as  his  property  is 
negatived,  it  is  not  easy  to  see  how  he  can  establish  a  right,  not 
only  to  work  the  mines,  but  to  prevent  the  owners  of  them  from 
doing  so,  when  the  plaintiff  is  not  himself  working  them.  A 
profit  it  prendre  is  a  right  to  take  something  off  another  person's 
land;  such  a  right  does  not  prevent  the  owner  from  taking  the 
same  sort  of  thing  from  off  his  own  land ;  the  first  right 
[*  485]  may  limit,  but  does  not  exclude,  *  the  second.  An  exclu- 
sive right  to  all  the  profit  of  a  particular  kind  can,  no 
doubt,  be  granted;  but  such  a  right  cannot  be  inferred  from 
language  which  is  not  clear  and  explicit.  This  is  plain  from  the 
many  cases  referred  to  in  the  argument,  viz.:  Lord  MourUjoy's 
Case,  1  And.  307,  4  Leon.  147 ;  Chetham  v.  Williamson,  4  East^ 
469 ;  Doe  v.  Wood,  2  B.  &  Aid.  724  (p.  775,  ante) ;  and  Carr  v. 
Benson,  L.  R.  3  Ch.  524. 


B.  C.  VOL.  XVU.]      SECT.  VL  —  BULBS  OF  OONSTBUOTION,  ETC.  793 

Vo.  80.— Dote  of  SntlMrluid  ▼.  HMthooto,  1888, 1  Gh.  486,  488. 

In  LorA  Mountjoy's  Case  property  was  conveyed  to  two 
persons,  John  and  Charles,  in  fee,  and  they  covenanted  and 
granted  with  and  to  their  grantor  as  follows :  ''  That  it  shall  be 
lawful  for  Lord  Mountjoy,  his  heirs  and  assigns,  at  all  times 
hereafter  to  have,  take,  and  dig  in  and  upon  the  heath-ground  of 
the  premises  from  time  to  time,  sufficient  ores,  heath,  turves,  and 
other  necessaries  for  the  making,  &c.,  of  allom  or  copperas  .... 
without  let  or  interruption  of  the  said  John  and  Charles  (i  e.,  the 
grantees  of  the  land),  their  heirs  or  assigns,  or  either  of  them." 
In  Anderson's  report  it  is  said  to  have  been  resolved  {irUer  alia) 
**  (3)  that  the  Lord  Mountjoy  might  dig  ore  and  other  things  for 
making  of  allom  and  copperas,  &c.,  as  he  should  think  good." 
This  report  leaves  it  uncertain  whether  the  Lord  Mountjoy  had 
an  exclusive  license  or  not  But  it  appears  from  the  report  in 
Leonard  that  it  was  held  that  there  was  a  new  grant  of  an  interest 
to  dig  to  Lord  Mountjoy  and  his  heirs  in  the  land,  and  not  a 
mere  covenant,  and  that  Brown  {%.  e.,  the  grantee  of  the  lands) 
and  his  heirs  and  assigns  might  dig  there  notwithstanding  the 
said  grant  to  the  said  Lord.  Now,  Leonard  is  well  known  to 
have  been  a  very  accurate  reporter,  and  Lord  Mountjo^s  Case  has 
always  been  regarded  as  a  leading  authority  for  the  proposition 
that  a  grant  in  fee  of  liberty  to  dig  ores  does  not  confer  on  the 
grantee  an  exclusive  right  to  dig  them,  even  if  the  grant  is  in 
terms  without  any  interruption  by  the  grantor.  This  was  the 
view  taken  of  the  case  in  Chetham  v.  Williamson  and  in  Doe  v. 
Wood,  and  has  never  been  judicially  questioned. 

In  the  present  case,  however,  the  reservation  is  not  of  liberty 
to  take  coal,  but  of  full  and  free  liberty  to  take  "  the  "  coal ;  but, 
inasmuch  as  the  grantee  could  take  all  the  coal  if  he  wanted  it, 
even  if  the  word  "the"  were  omitted,  we  cannot  think 
that  the  *  introduction  of  that  word  can  have  the  effect  of  [*  486] 
so  enlarging  the  operation  of  the  grant  or  reservation  as  to 
exclude  the  owners  of  the  soil  and  their  assigns  from  working  the 
coal,  which  the  grantees  of  the  liberty  to  work  the  coal  were  not 
themselves  in  a  position  to  get.  There  is  nothing  to  warrant  the 
inference  that  any  particular  stress  or  emphasis  was  put,  or  ought 
to  be  put,  on  the  word  "the"  in  the  clause  in  question.  The 
words  used  in  this  reservation  are  certainly  not  such  as  any  con- 
veyancer in  1783  would  have  used  in  order  to  reserve  an  exclusive 
right  to  work  the  mines ;  there  is  not  enough,  in  our  opinion,  to 


794  MINES  AND  MINERALS. 


Km.  89,  so.  —  Doe  d.  Hanky  ▼.  Wood;  Dvko  of  Suthoriand  ▼.  HMthooto.  —  Votoo. 

show  that  anything  more  was  reserved  than  a  right  to  work  the 
mines  when  desired ;  such  a  right  does  not  exclude  the  right  of 
the  owner  to  work  them,  provided  he  does  not  disturb  the 
grantee  in  his  working  operations  when  and  where  he  is  carrying 
them  on. 

We  concur,  therefore,  with  the  learned  Judge  whose  decision 
is  appealed  from,  and  hold  that  the  defendants  have  not  infringed, 
and  are  not  infringing,  the  plaintiflPs  rights. 

This  conclusion  renders  it  unnecessary  to  consider  any  of  the 
other  questions  discussed,  except  the  right  of  the  plaintiff  to 
have  the  lease  of  1877  to  him  rectified  on  the  ground  of  mistake. 
During  the  course  of  the  argument  it  was  pointed  out  that  no 
mistake  common  to  both  parties  was  proved ;  that  there  were  no 
materials  for  rectifying  the  lease  and  making  it  conform  to  the 
intention  of  both  parties ;  and  that,  under  these  circumstances, 
the  only  possible  right  which  the  plaintiff  could  have  would  be 
to  have  the  lease  set  aside  on  equitable  terms,  one  of  which 
would  be  giving  up  possession  of  the  property  leased.  The 
plaintiff  was  not  prepared  to  do  this,  and  it  is  plain,  therefore, 
that  he  is  not  entitled  to  have  that  lease  either  rectified  or  set 
aside.     The  appeal  must  be  dismissed  with  costs. 

ENGLISH  NOTES. 

Roads  V.  Overseers  of  Trumpington  (1870),  L.  R.  6  Q.  B.  56,  was  a 
rating  case,  in  which  the  effect  of  an  agreement  for  permission  to  dig 
coprolites  was  discussed.  The  agreement,  made  between  the  land- 
owner and  a  contractor,  was  (in  brief)  1.  That  the  landowner  should 
permit  the  contractor  to  enter  upon  and  to  dig,  excavate,  search  for, 
carry  away,  and  dispose  of  the  coprolites  in  and  out  of  such  part  as  is 
now  and  shall  from  time  to  time  hereafter  be  allotted  by  the  agents  of 
the  landowner  of  and  in  all  that  piece  of  land,  &c.,  containing  seventeen 
acres  ;  (2)  That  the  contractor  shall  forthwith  enter  upon  such  portion 
of  the  land  as  is  now  set  out  and  allotted  containing  two  acres  or  there- 
abouts, and  within  the  first  four  months  of  the  term  dig  and  carry  away 
the  coprolites  in  and  under  the  same,  and  afterwards  in  every  successive 
four  months  enter  upon  such  other  portion  (being  not  less  than  two 
acres)  as  shall  be  allotted,  &c.  There  were  clauses  that  the  contractor 
should  from  time  to  time  reinstate  the  surface  where  the  coprolites  had 
been  dug;  and  should  effectually  fence  all  land  in  course  of  excavation. 
It  was  further  agreed  (12)  that  the  contractor  should  pay  £2630  ISs.  for 
the  coprolites  under  the  seventeen  acres,  the  sum  to  be  payable  per  acre 


R.  a  VOL.  XVII.]      SECT.  VI.  —  RULES   OF  CONSTRUCTION,  ETC.  795 

Kof.  89,  80.  —  Doe  d.  Hanley  ▼.  Wood ;  Bake  of  SnthorUnd  ▼.  Heathoote. — Notes. 

before  entering  upon  the  land.  The  landowner  was  to  be  at  liberty  at 
any  time  to  enter  upon  the  land  to  inspect  the  works.  A  rate  had  been 
made  upon  the  contractor  (appellant  in  the  case)  in  respect  of  his  occu- 
pation of  five  acres  of  the  land.  It  appeared  that  the  coprolites  formed 
a  stratum  of  nine  to  twelve  inches  in  thickness  at  a  depth  of  about  twelve 
feet  below  the  surface.  The  modus  operandi  was  by  working  down 
from  the  surface,  after  first  removing  the  top  soil,  which  was  ultimately 
replaced  on  the  surface  in  the  process  of  reinstatement.  At  the  time 
the  rate  was  made  the  contractor  had  already  worked  through  about  ten 
acres  of  the  ground,  of  which  about  five  acres  still  remained  to  be 
reinstated;  and  had  entered  upon  an  allotment  of  two  more  acres  under 
clause  (2)  of  the  agreement,  and  commenced  working  the  coprolites. 
there. 

The  Judges  of  the  Queen's  Bench  (Blackburn,  J.,  and  Mellor,  J.) 
held  that  the  rate  was  properly  made ;  for  the  appellant  was  in  the  occu- 
pation of  at  least  five  acres,  and  his  occupation  of  the  ground  which 
was  being  worked,  and  of  that  which  remained  to  be  reinstated,  was, 
in  effect,  exclusive  according  to  the  agreement.  Blackburn,  J.,  ob- 
served: **In  Doe  d,  Hanley  v.  Wood  (supra)  the  grantee  might,  per- 
haps, have  had  a  right  to  bring  ejectment  for  mines  within  the  limits 
of  his  workings.  So  here  I  should  think  that  after  entry  and  before 
yielding  up  the  land,  the  appellant  might  have  maintained  ejectment 
and  recovered  possession  from  one  in  occupation  of  the  land." 

Where  the  intention  is  clear  that  a  license  is  exclusive,  the  intention 
will  receive  effect  so  as  to  enable  the  licensee  who  has  entered,  to 
maintain  trespass  against  a  person  who  enters  unlawfully.  So  in  Low 
Moor  Co.  V.  Stanlei/  Coal  Co.  (1875,  1876),  33  L.  T.  436,  34  L.  T.  186, 
the  owner  by  deed,  dated  12th  July,  1834,  had  *^  granted,  bargained,  and 
sold"  the  coal  and  minerals,  &c.,  lying  under  certain  land  to  H.  This 
deed  had  not  been  enrolled  as  a  bargain  and  sale,  and  there  was  no 
livery  of  seisin  to  make  it  operate  as  a  feoffment.  The  grantee  had, 
however,  entered  on  and  partly  worked  one  of  the  seams  of  coal.  It 
was  held  in  effect  that  the  possession  so  taken  by  H.  under  the  deed, 
whether  the  deed  was  considered  as  a  lease  of  or  an  irrevocable  license 
to  get  the  coal,  being  a  possession  intended  and  lawfully  intended  to  be 
an  exclusive  possession  of  all  that  was  expressed  to  be  comprised  in  the 
grant,  was  sufficient  to  support  an  action  for  trespass  by  H.'s  assignees 
against  a  person  who  unlawfully  entered  upon  an  unworked  seam  of 
coal  under  the  land. 

A  case  of  Stanley  v.  Riky  (1892),  31  L.  R.  Ir.  196,  arose  upon  a 
contract  for  getting  ''  bog  ore  "  in  Ireland.  The  contractors,  in  a  letter 
to  the  landowner  (Mr.  B.),  proposed  and  agreed  ''  to  take  from  you  the 
bog  ore  in,  under,  or  upon  the  estates  of  the  late  Mr.  B,,,  with  full 


796  MINES  AND  MINESALS. 


Vol.  89,  80.  —  Doe  d.  Hanlay  ▼.  Wood ;  Diiko  of  Snthoriand  ▼.  Hoatheoto.  — Votoi. 

power  of  entering  upon  the  said  estates,  and  raising,  getting,  and  remov- 
ing the  said  ore,  for  a  period  of  three  years  at  a  certain  yearly  royalty 
of  £50  .  .  .  and  we  agree  to  pay  a  further  royalty  of  2«.  for  every  ton 
over  and  ahove  three  thousand  tons  that  we  may  raise  within  the  said 
period  of  three  years  to  take  away,  provided  that  if  after  the  said  period 
of  three  years  we,  or  either  of  us,  should  desire  to  continue  to  raise, 
get,  and  take  away  the  said  ore,  we  or  either  of  us  so  desiring  should 
he  entitled  to  do  so  on  payment  to  the  person  for  the  time  heing  enti- 
tled to  the  said  estates,  of  a  royalty  equal  to  one-fifth  of  the  net  profit," 
&c.  This  proposal  was  accepted,  and  a  considerable  amount  of  ore 
carried  away  in  accordance  with  it.  Some  time  after  the  expiry  of  the 
three  years  the  landowner  claimed  abruptly  to  terminate  the  agreement 
and  to  work  the  ore  himself.  The  contractor  brought  the  action  for  an 
injunction  to  restrain  the  landowner  (1)  from  raising  and  carrying  away 
any  of  the  ore,  and  (2)  from  interfering  with  his  working.  It  appeared 
that  the  ''  bog  ore  "  is  a  substance  not  contained  in  any  definite  vein, 
but  scattered  about  the  land  at  no  great  depth;  and  that  the  work  of 
raising  and  carrying  it  away  required  no  fixed  plant,  nor  did  it  require 
any  exclusive  occupation  of  any  part  of  the  land  beyond  that  upon  which 
the  immediate  work  of  the  moment  was  being  done.  The  Chancery 
Division  held  that,  upon  the  true  construction  of  the  agreement,  after 
the  expiration  of  the  term  of  three  years  the  agreement  operates  as  an 
irrevocable  but  not  exclusive  license  to  work  the  ore  during  the  lifetime 
of  (Mr.  B.)  upon  the  terms  in  the  agreement  set  out.  And  they  refused 
the  injunction  (1)  moved  for  as  above,  and  granted  the  injunction 
(2)  above  moved  for.  This  decision  was  confirmed  by  the  Court  of 
Appeal. 

AMERICAN  NOTES. 

A  license  to  mine  is  a  mere  incorporeal  hereditament.  United  States  v. 
ehatiot,  14  Peters  (U.  S.  Sup.  Ct.),  526;  Gartside  v.  Outley,  58  Illinois,  210; 
11  Am.  Rep.  69;  Boone  v.  Stover^  66  Missouri,  430  (citing  Doe  v.  Wood)\  East 
J.  L  Co.  V.  Wnght,  82  New  Jersey  Equity,  248 ;  -Scioto  F.  B,  Co,  v.  Pond,  38 
Ohio  State,  65;  Offerman  v.  Starr,  2  Penn.  State,  394;  44  Am.  Dec.  211 ;  Mas- 
sott  V.  Moses,  3  South  Carolina,  168;  16  Am.  Rep.  697;  Cowan  Y.Radford  Iron 
Co,,  83  Virginia,  547;  Gauter  v.  Atkinson,  35  Wisconsin,  48.  Doe  v.  Wood  is 
cited  in  Washburn  on  Easements,  p.  18. 

A  grant  of  a  right  to  dig  coal  and  carry  it  away  is  an  incorporeal  hereditsr 
ment,  and  does  not  interfere  with  the  right  of  the  grantor  to  mine  in  the 
same  land.     Oloninger  v.  Franklin  Coal  Co.,  55  Penn.  State,  9. 

In  Massot  v.  Moses,  supra,  is  an  extremely  learned  opinion,  citing  Lord 
Mountjoy's  Case  and  Doe  v.  Wood,  distinguishing  the  former  on  the  ground 
that  here  the  license  contained  the  expression,  "  that  may  be  found  by  any 
person  or  persons,  or  contained  in  any  part "  of  the  land,  and  holding  that 
the  privilege  of  mining  for  ten  years  was  exclusive  and  assignable. 


R.  C.  VOL.  XVIL]      SEC3T.  VI.  —  RULES  OF  CX)NSTRUCTION,  ETC.  797 

Ko.  SI.  —  WalD»  T.  Hftll,  8  App.  Cm.  106.  —  BhIa. 

Doe  Y.  Wood  and  MounUjoy^s  Case  are  examined  in  GrtM  v.  Bayard,  2 
W^allace,  Jr.  (U.  S.  Giro.  Ct.),  90,  and  it  was  held  that  when  one  granted  part 
of  a  tract,  and  covenanted  for  himself,  his  heirs,  executors,  and  administra- 
tors, with  the  grantee,  his  heirs  and  assigns,  that  he  and  they  might  dig,  take, 
and  carry  away  all  iron  ore  to  be  found  in  the  ungranted  part,  at  so  much  a 
ton,  this  was  not  a  grant  of  the  ore,  but  a  mere  privilege  to  mine.  No  property 
accrued  in  the  ore  until  the  privilege  was  exercised,  and  the  privilege  was  not 
exclusive  of  the  grantor  of  the  land. 

But  a  parol  license  to  mine,  for  a  share  of  the  product,  for  an  indefinite 
period,  partly  executed  at  expense  by  the  licensee,  gives  him  a  valid  subsisting 
interest  in  the  land,  entitling  him  to  compensation  for  his  expenditures,  and 
to  maintain  ejectment  against  the  licensor  or  his  subsequent  licensees  with 
notice.  Beatty  v.  Gregory,  17  Iowa,  109 ;  85  Am.  Dec  646,  citing  Bush  v. 
SulUvan,  3  G.  Greene  (Iowa),  314 ;  54  Am.  Dec.  506,  Doe  v.  Wood,  and  Mount- 
Joy's  Case,  but  drawing  a  distinction  between  opened  and  unopened  mines. 


No.  31.  — WAKE  V.  HALL. 
(H.  L.  1883.) 

BULE. 

Whbbb^  by  the  custom  of  a  particular  district,  a  miner 
has  a  right  as  against  the  landowner  to  enter  and  work  a 
mine,  fixtures  put  up  by  the  miner  for  the  purposes  of  the 
working  do  not  become  the  property  of  the  landowner; 
and  the  miner,  on  abandoning  the  working,  is  entitled,  and 
perhaps  bound,  to  remove  such  fixtures. 

Wake  T.  Hall  and  others. 

8  App.  Gas.  195-216  (s.  c.  52  L.  J.  Q.  B.  494 ;  48  L.  T.  834 ;  31  W.  B.  585). 

Mine,  —  High  Peak  Mining  Customs.  —  Fixtures.  [195] 

MiDers  working  under  customs  established  by  the  High  Peak  Mining  Customs 
and  Mineral  Courts  Act,  1851  (14  &  15  Vict.,  c  xciv.)»  lawfully  erected  ma- 
chinery and  buildings  accessory  thereto  on  surface  land,  of  which  the  miners 
were  entitled  to  the  exclusive  use  for  mining  purposes,  but  the  freehold  of  which 
belonged  to  others.  The  buildings  were  attached  so  as  to  be  part  of  the  soil, 
and  so  that  they  could  not  be  removed  without  some  disturbance,  which  would 
not  amount  to  a  destruction,  of  the  soil.  The  buildings  were  from  the  first 
intended  to  be  accessory  to  the  mining,  and  there  was  nothing  to  show  that  the 
property  in  them  was  intended  to  be  irrevocably  annexed  to  the  soil. 


798  MINES   AND  MINERALS. 


Ko.  31.  —  Wake  ▼.  Hall,  8  App.  Caa.  185-108. 


HMf  that  the  maziin  quicquid  plantcUur  solo  solo  oedit  was  not  applica- 
hie,  and  that  the  miners  were  entitled  to  pall  down  and  remove  the  huildings 
while  their  interest  in  the  mine  continued,  and  were  not  liahle  to  the  surface 
owners  for  so  doing. 

Appeal  from  so  much  of  a  judgment  of  the  Court  of  Appeal  as 
dismissed  the  appellants'  appeal. 

The  action  was  brought  by  the  appellants  to  recover  damages 
from  the  respondents  in  respect  of  alleged  trespasses  upon  the 
appellants*  land,  and  for  the  wrongful  destruction  and  removal 
by  the  respondents  of  buildings  on  the  land,  and  for  other  tres- 
passes not  now  in  question.  [The  nature  of  the  questions  argued 
and  considered  on  the  appeal,  sufficiently  appears  from  the  opinions 
of  the  learned  lords,  which,  after  argument  and  consideration,  were 

given  as  follows]  :  — 
[198]       Lord  Blackburn:  — 

My  Lords,  the  question  to  be  decided  in  this  case  is 
whether  the  respondents  (defendants  below),  who  were  miners, 
working  a  lead  mine  in  the  King's  Field,  part  of  the  possessions  of 
the  Duchy  of  Lancaster,  and  who  had  erected  some  buildings  on 
land  the  property  of  the  appellants  (plaintiffs  below),  were  justified 
as  against  the  plaintiffs  in  pulling  down  those  buildings  and  remov- 
ing the  materials  at  the  time  and  in  the  manner  in  which  they  did 
remove  them.  I  think  it  convenient  first  to  say  what  the  question 
really  raised  is,  and  what  appear  to  me  to  be  the  facts. 

There  were  ancient  mining  customs  in  this  district,  but  by  the 
14  &  15  Vict,  c.  xciv.,  after  reciting  that  the  "mineral  laws  and 
customs  of  the  King's  Field  are  uncertain  and  undefined,  and  are 
in  many  respects  inapplicable  to  the  present  mining  operations 
within  the  King's  Field,"  and  that  it  was  advisable  "  that  the  said 
mineral  laws  and  customs  should  be  revised,  altered,  and  amended, 
so  as  to  be  made  applicable  to  the  present  state  of  mining  operations 
within  the  said  hundred,"  it  is  enacted  by  the  16th  section  that 
the  mineral  laws  and  customs  of  a  part  of  the  hundred  of  High 
Peak,  including  the  King's  Field,  "  shall  be  such  as  are  mentioned 
and  comprised  in  this  Act,  and  no  other  alleged  custom  or  practice 
shall  be  valid." 

Power  is  given  by  the  56th  section  to  make  new  and  additional 
customs,  but  that  does  not  appear  to  have  been  yet  exercised. 
The  articles  and  customs  by  this  Act  established  are  contained  in 
the  first  schedule  to  it,  and  whether  the  customs  there  mentioned 


R.  C.  VOL,  XVII.]      SECT.  VI.  — RULES  OF   CONSTRUCTION,  ETC.  799 

Ko.  31.  —Wake  ▼.  Hall,  8  App.  Gas.  198,  199. 

were  really  ancient  or  not,  and  whether  they  were  such  as  would 
before  the  passing  of  this  Act  have  been  held  reasonable  or  not,  I 
think  that,  since  the  passing  of  that  Act,  August,  1851,  they  have 
the  force  of  statute  law. 

The  first  custom  allows  any  one  to  search  for  veins  of  lead  ore 
upon  any  lands,  except  those  occupied  for  certain  specified  pur- 
poses, and  if  a  vein  is  found,  to  follow  it  under  such  excepted 
places.  No  compensation  is  given  to  the  owner  of  the  land  in 
which  the  vein  is  found  and  worked,  though  compensation 
is* given  to  the  owner  of  the  excepted  places  for  any  [*  199] 
damage  to  the  excepted  places  by  following  it  under  them. 

The  4th,  5th,  and  19th  customs,  set  out  in  the  schedule,  seem 
to  me  material,  and  I  will  now  read  them :  "  4.  The  barmaster, 
together  with  two  of  the  grand  jury,  shall  provide  the  miners  a 
way,  either  for  foot  passengers  or  carts,  as  may  be  required,  from 
the  nearest  highway  to  the  mine,  and  also  from  the  mine  to  the 
nearest  running  stream,  spring,  or  natural  pond  of  water,  such 
ways  to  be  set  out  in  as  short  a  course  as  may  be  practicable  and 
reasonable.  No  compensation  is  to  be  claimed  by  the  occupier  or 
landowner  for  such  ways,  but  such  ways  are  not  to  be  considered 
public,  and  the  use  thereof  is  to  be  limited  to  persons  and  purposes 
connected  with  the  mine,  and  all  rights  of  way  are  to  cease  when 
the  mine  shall  be  no  longer  worked.  The  parties  entitled  to  use 
the  way  may  make  sufficient  ways  for  use,  and  keep  the  same 
in  repair,  and  may  also  use  for  mining  purposes  the  water  from  the 
nearest  running  stream,  spring,  or  natural  pond.  5.  Every  miner 
shall,  so  long  as  his  mine  shall  be  worked,  be  entitled,  without 
making  any  payment  for  the  same,  to  the  exclusive  use  of  so  much 
surface  land  as  shall  be  thought  necessary  by  the  barmaster  and 
two  of  the  grand  jury,  and  be  set  out  by  them,  for  the  purpose  of 
laying  rubbish,  dressing  his  ore,  briddling,  making  meers  or  ponds, 
and  conveying  water  thereto,  and  any  other  mining  purposes.  The 
miner  shall  in  all  cases,  before  he  commences  any  search  or  uses 
any  land,  make  fences  sufficient  for  the  protection  of  cattle  from 
any  injury  which  might  arise  from  his  operations,  and  keep  such 
fences  in  sufficient  repair.  19.  The  barmaster,  if  he  finds  any  mine 
or  vein  neglected  and  not  wrought,  and  not  hindered  by  water  or 
for  want  of  air,  shall,  if  required  so  to  do  by  any  person  or  persons, 
send  to  the  owner  or  reputed  owner,  where  known  to  him,  and  if 
not  known  to  him,  then  put  up  in  some  conspicuous  place  within 


800  MINES  AND   MINERALS. 


No.  31.  —  WalD»  T.  Hidl,  8  App.  Cai.  190,  900. 


the  liberty  in  which  the  mine  or  vein  is  situate,  a  notice  that  such 
mine  or  vein  will,  at  the  expiration  of  three  weeks,  if  not  duly  and 
reasonably  worked  to  the  satisfaction  of  the  barmaster  and  grand 
jury,  and  no  other  suflBcient  reason  assigned  to  them,  be  forfeited ; 
and  if  at  the  expiration  of  the  said  three  weeks  the  mine  or  vein 
is  not  80  worked,  the  barmaster,  in  the  presence  of  two  of 
[*  200]  the  *  grand  jury,  may  give  such  mine  or  vein  to  any  per- 
son or  persons  willing  to  work  the  same ;  provided  that 
nothing  herein  contained  shall  authorise  the  barmaster  to  give 
away  such  mine  or  vein  if  the  owner  thereof  be  unable  to  work  the 
«ame  by  reason  of  such  mine  or  vein  being  under  water,  or  for  want 
of  air,  so  long  as  the  owner  thereof  is  using  efficient  and  diligent 
means  to  the  satisfaction  of  the  barmaster  and  grand  jury  to 
relieve  such  mine  or  vein." 

I  do  not  think  any  others  of  the  customs  material  Admissions 
between  the  parties  were  made,  of  which  some  are  material  as 
showing  what  is  the  question  which  is  now  to  be  decided.  I  will 
read  those  which  I  think  material.  "  1.  Admit  that  the  land  in 
question  is  within  the  King's  Field.  2.  Admit  that  the  defend- 
ants have  got  the  mining  rights  given  by  the  statute  and  sched- 
uled customs  and  new  and  additional  customs,  articles,  rules 
and  orders  (if  binding  on  the  landowners).  3.  Admit  that  up  to 
June,  1872,  all  buildings  on  the  land  in  question  were  erected  and 
used  for  mining  purposes.  4.  Admit  that  in  June,  1872,  the  de^ 
fendants  suspended  working  the  mine  (except  the  working  of  the 
hillocks  in  1878,  as  hereinafter  mentioned),  and  that  the  mine  in 
question  has  remained  in  the  possession  of  the  defendants  and 
registered  in  their  or  some  of  their  names  in  the  barmaster^s 
books.  5.  Admit  that  the  defendants  in  1873  and  1874  pulled 
down  the  engine-house,  boiler-house,  and  some  other  of  the  build- 
ings in  the  particulars  mentioned,  and  that  they  sold  the  building 
materials  and  fixed  and  unfixed  machinery.  ...  12  and  13.  Admit 
that  part  of  the  hereinbefore-mentioned  buildings  were  built  on 
some  part  of  the  hillocks  above  described,  there  being  some  feet 
of  these  mineral  substances  between  the  foundations  and  the  natu- 
ral surface  of  the  land,  but  that  part  of  the  said  buildings  (the 
chimney  and  pumping  engine-house  and  bed)  were  on  foundations 
which  were  below  the  natural  surface.  14.  Admit  that  the  mine 
in  question  has  been  worked  for  two  hundred  years  and  upwards, 
during  all  which  period  the  defendants  or  their  predecessors  in 


B.  a  VOL.  XVII.]      SECT.  VI.  —  RULES   OF  CONSTRUCTION,  ETC.  80l 

Ko.  81.  —  WalD»  T.  HaU,  8  App.  Cai.  900,  901. 

title  have  been  in  possession  as  miners.  15.  Admit  that  the 
materials  of  which  the  hillocks  were  composed  have  been  raised 
partly  by  the  defendants  and  partly  by  their  predecessors.  16. 
Admit  that  the  before-mentioned  buildings,  other  than  the 
*  buildings  now  converted  into  stables,  were  erected  in  and  [*  201] 
before  1854.  18.  Admit  that  the  land  in  question  was 
allotted  to  the  plaintiffs  or  their  predecessors  in  title  under  the 
award,  dated  1807,  made  under  the  Great  Hucklow  Inclosure  Act 
of  1803  (Act  and  award  to  be  put  in).  ...  19.  Admit  that  it  has 
been  the  practice  in  the  district  for  miners  to  erect  buildings  and 
fix  machinery  similar  to  the  buildings  and  machinery  of  the  defend- 
ants for  mining  purposes,  and  from  time  to  time  to  alter  and  vary 
the  description  and  character  of  the  buildings  and  machinery  as 
improvements  have  been  discovered  and  introduced,  and  to  remove 
and  sell  removable  machinery  without  objection  by  the  owners  of 
the  soil.  20.  Admit  that  it  has  been  a  common  practice  in  the 
district  for  work  in  the  mines  to  be  suspended  for  many  years 
(during  which  the  mine  remains  the  property  of  the  miner  and 
registered  in  his  name  in  the  barmaster's  books  until  dispossessed 
under  the  miner's  customs),  and  for  the  miners  afterwards  to  resume 
the  working  of  the  mine.  21.  Admit  that  the  mines  and  hillocks 
in  question  have  not  been  exhausted  and  are  still  a  valuable  prop- 
erty. 22.  Admit  that  the  working  of  the  mine  was  suspended  by 
the  defendants  in  consequence  of  its  being  unremunerative,  and 
that  it  would  cost  a  considerable  sum  to  put  up  machinery  equiva- 
lent to  what  was  removed  by  the  defendants  in  1873  and  1874." 

There  can,  I  think  be  no  doubt  that  the  buildings  mentioned 
in  the  12th  and  13th  admissions,  at  least  the  chimney,  pumping- 
engine  house  and  bed,  were  so  attached  to  the  soil  which  belonged 
to  the  plaintiffs  as  to  be,  whilst  they  so  continued  attached,  part 
of  that  soil ;  and  if  the  defendants  can  make  out  that,  notwith- 
standing this  annexation,  they  retained  such  a  property,  or  at 
least  an  interest  in  the  materials  of  which  these  buildings  were 
formed,  as  to  be  entitled  to  remove  them  when  they  did,  the 
plaintiffs  cannot  make  any  case  as  to  anything  else.  If  the 
defendants  fail  as  to  these,  there  might  come  to  be  a  question 
whether  they  necessarily  failed  as  to  other  things.  But  I  think, 
therein  agreeing  with  the  Court  below,  that  the  defendants  have 
succeeded  in  showing  that  they  had  such  a  property,  or  at  least 
interest  in  these  materials. 

VOL.  XVII. —  51 


802  MINES  AND  MINERALS. 

Vo.  Sl.^  Wftktt  T.  HaU,  8  App.  Cfti.  901-908. 

The  plaintiffs'  counsel  contended  at  your  Lordships'  bar  — 
[*  202]  though  *  the  Lord  Chancellok  seems  to  have  understood 
them  not  to  dispute  it  below  (7  Q.  B.  D.  298,  299)  — 
that  the  defendants  were  not  justified  in  erecting  buildings  of  such 
a  nature.  And  this,  if  it  could  have  been  made  out,  would  have 
been  of  great  importance  to  them.  For  there  is  a  great  diflFerence 
between  the  position  of  a  person  who  wrongfully  annexes  his  mate- 
rials to  the  soil  of  another,  and  that  of  a  person  who  does  so  right- 
fully. But  I  think  the  plaintiffs'  counsel  failed  in  establishing  this 
contention.  I  do  not  doubt  that  no  such  buildings  were  used  for 
mining  purposes  in  the  reign  of  Henry  II.,  when  the  ancient  custom 
originated;  and  before  the  Act  of  1851  it  might  have  admitted  of 
an  argument  whether  the  custom  which,  tempore  Henry  II.,  applied 
to  the  erections  then  necessary  or  proper,  applied  now  to  those 
which  became  afterwards  necessary  or  proper.  But  I  do  not  think 
it  admits  of  doubt  that  the  Act  of  1851  makes  the  custom  apply  to 
the  present  state  of  mining  operations  in  the  King's  Field  ;  and  after 
the  19th  admission,  it  is  impossible  to  doubt  that,  in  the  present  state 
of  mining,  such  buildings  are  necessary  or  at  least  proper  for 
mining  operations. 

It  was  also  contended  that,  whether  the  miner  could  or  could 
not  remove  the  materials  whilst  his  interest  continued,  that,  in- 
terest terminated  in  1872.     But  that,  I  think,  fails  in  fact,  for  I 
think,  as  was  indeed  decided  in  the  cross  appeal  which  has  not 
been  brought  before  this  House,  that  the  miner's  interest  did  not 
cease  merely  by  the  suspension  of  working  in  1872  (though  that 
might  have  justified  the  barmaster,   under  the  19th  custom,  in 
declaring  the  miner's  interest   forfeited),   and   that   the  miner's 
interest  in  the  portion  of  the  surface  of  which  he  had  exclusive 
possession  continued  till,  by  the  pulling  down  of  the  buildings  in 
1874,  he  unequivocally  showed  that  he  had  abandoned  the  mine. 
There  is,  therefore,  no  occasion  to  decide  whether  or  not  the  right 
to  remove  materials,  when  a  person  has   that  right  during  his 
interest,  continues  a  reasonable  time  after  the  termination  of  his 
interest  or  not. 

The  question,   therefore,  which  has   to  be  decided  is  whether 

when  the  defendants  erected  buildings  so  no  doubt  as  to  annex 

them  to  the  soil  of  the  plaintiffs,  but,  in  the  language  of 

[*  203]  the  third  *  admission,  "  for  mining  purposes,"  and  that  at  a 

time  when  the  defendants  had  a  right  to  erect  such  build* 


K.  C.  VOL.  XVIL]       sect.  VI.  —  RULES   OF  CONSTKUCTION,  ETC.  803 

Ho.  81.  —  WalD»  T.  Hftll,  8  App.  Cm.  908,  904. 

ings  on  the  plaintiffs'  soil,  they,  whatever  their  intention  might 
be,  made  the  materials  the  property  of  the  owners  of  the  soil  in 
such  a  sense  that  the  defendants  could  not  at  any  time  remove 
them.  No  case,  it  is  admitted,  has  ever  been  decided  on  this  par- 
ticular kind  of  interest.  The  plaintiffs'  counsel  relied  on  what  is 
said  in  a  work  no  doubt  of  very  high  authority,  the  notes  to  Hlwes 
V.  Mawe,  2  Sm.  L.  C,  7th  ed.,  185  [12  R  C.  193],  that  the  general 
rule  is,  "  that  whatever  is  annexed  to  the  realty  becomes  part  of  it," 
which  I  think  is  perfectly  accurate,  "  and  the  person  who  was  the 
owner  of  it  when  a  chattel  loses  his  property  in  it,  which  immediately 
vests  in  the  owner  of  the  soil.  Quicquid  plarUatur  solo,  solo  cedit** 
which  I  venture  to  think  is  much  too  broadly  stated  even  as  the 
general  rule.  The  maxim  cited  is  to  be  found  in  the  works  of 
Gains,  and  probably  he  was  quoting  an  older  maxim.  And  the 
passage  in  which  he  uses  it  is  incorporated  in  the  Digest,  book  41, 
title  I.,  De  acquirendo  rerum  dominio.  In  the  7th  section  of  that 
title  there  is  a  great  deal  of  very  able  reasoning  as  to  what  should 
be  the  law  8is  to  property  where  one  person  has  changed  the  nature 
of  the  thing  belonging  to  another  by  bestowing  his  labour  on  it,  as 
for  instance  where  one  has  turned  the  silver  of  another  into  a  vase, 
his  block  of  marble  into  a  statue,  or  his  grapes  into  wine.  That 
question  is  not  material  here ;  and  then  in  the  10th  law  of  that  7th 
section  it  is  said  (I  translate  the  Latin),  "  If  one  on  his  own  land 
has  erected  a  building  with  materials  belonging  to  another,  he  is  the 
owner  (dominus)  of  the  building,  for  all  that  is  built  into  the  soil 
becomes  part  of  it,  quia  omne  quod  incedificatur  solo  cedit  But 
this  is  not  so  that  he  who  was  the  owner  of  the  materials  ceases 
to  be  the  owner  thereof ;  but,  nevertheless,  he  (the  owner  of  the 
materials)  cannot  bring  an  action  to  recover  them  in  specie,  nor 
take  them  away  himself  (nee  vindicare  earn  potest  neque  ad  exhi- 
hendum  de  ea  agere\  because  of  that  law  of  the  Twelve  Tables, 
which  provides  ne  quis  tignum  alienum  cedihus  suis  junctum 
eximere  cogatur  sed  duplum  pro  eo  prcestet  Therefore  if  by  any 
cause  the  building  is  cast  down,  the  owner  of  the  materials  can 
nunc  earn  vindicare  et  ad  exhihendum  agere.**  So  far 
from  *  meaning  by  the  maxim  that  the  property  which  [*  204] 
had  existed  in  the  materials  whilst  chattels  was  lost,  and 
vested  in  the  owner  of  the  soil,  the  maxim  is  used  when  Gaius, 
and  the  framers  of  the  Digest  who  adopted  his  opinion,  thought 
that  the  property  in  the  materials  remained  in  the  person  who  was 


804  MINES  AND  MINERALS. 


Ho.  81.  —  Wake  t.  Hall,  8  App.  Caa.  JMM,  906. 


owner  of  them  whilst  chattels,  and  did  not  vest  in  the  owner  of 
the  building,  though  by  the  annexation  the  materials  had  become 
part  of  the  soil,  and  though  by  the  positive  law  of  the  Twelve 
Tables  he  was  obliged  to  leave  the  building  untouched  on  being 
paid  double  the  value  of  his  materials.  And  I  do  not  think  that  the 
general  rule  of  English  law  goes  so  far  as  is  stated  in  the  passage 
just  read  from  Smith's  Leading  Cases,  or  that  the  authorities  cited 
bear  it  out  Even  where  a  person,  himself  the  owner  of  the  fee, 
has  annexed  any  chattels  of  his  own  to  his  own  land,  he  does  not 
always  cause  the  property  in  the  chattels  to  cease  to  be  personalty ; 
he  generally  intends  to  make  them  part  of  the  inheritance,  and 
when  he  does  so  intend,  there  can  be  no  question  that  on  his  death 
before  severance  the  heir  takes,  and  not  the  executor. 

Whenever  the  chattels  have  been  annexed  to  the  land  for  the 
purpose  of  the  better  enjoying  the  land  itself,  the  intention  must 
clearly  be  persumed  to  be  to  annex  the  property  in  the  chattels  to 
the  property  in  the  land,  but  the  nature  of  the  annexation  may  be 
such  as  to  show  that  the  intention  was  to  annex  them  only  tempo- 
rarily ;  and  there  are  cases  deciding  that  some  chattels  so  annexed 
to  the  land  as  to  be,  whilst  not  severed  from  it,  part  of  the  land, 
are  removable  by  the  executor  as  between  him  and  the  heir. 
Lord  Ellbnborough,  in  Mtoes  v.  Mawe,  2  Sm.  L.  C,  7th  ei,  178 
[12  R.  C.  193],  says  that  those  cases  "  may  be  considered  as  decided 
mainly  on  the  ground  that  where  the  fixed  instrument,  engine,  or 
utensil  (and  the  building  covering  the  same  falls  within  the  same 
principle)  was  an  accessory  to  a  matter  of  a  personal  nature,  that  it 
should  be  itself  considered  as  personalty.  *'  Even  in  such  a  case 
the  degree  and  nature  of  the  annexation  is  an  important  element 
for  consideration ;  for  where  a  chattel  is  so  annexed  that  it  cannot 
be  removed  without  great  damage  to  the  land,  it  affords  a 
strong  ground  for  thinking  that  it  was  intended  to  be  annexed  in 
perpetuity  to  the  land;  and,  as  Lord  Hardwjcke  said, 
[*  205]  in  Zawton  v.  Lawton,  3  Atk.  15,  "You  shall  *  not  destroy 
the  principal  thing  by  taking  away  the  accessory  to  it ;  ** 
and  therefore,  as  I  think,  even  if  the  property  in  the  chattel  was 
not  intended  to  be  attached  to  the  property  in  the  land,  the 
amount  of  damage  that  would  be  done  to  the  land  by  remov- 
ing it  may  be  so  great  as  to  prevent  the  removal.  But  in  the  case 
now  before  the  House  there  can  be  no  doubt  on  the  admissions 
that  the  machinery  and  the  buildings  were  from  the  first  intended 


B.  C.  VOL.  XVII.]      BECT.  VI.  —  KULES  OF  CONSTRUCnON,  ETC.  805 

Vo.  81.  -^  Wake  y.  Hall,  8  App.  Cm.  805,  906. 

to  be  accessory  to  the  mining,  and  that  there  was  not  at  any  time 
an  intention  to  make  them  accessory  to  the  soil ;  and  though  the 
foundations  being,  as  is  stated  in  the  12th  and  13th  admissions, 
below  the  natural  surface,  they  cannot  be  removed  without  some 
disturbance  to  the  soil,  it  is,  I  think,  impossible  to  hold  that  the 
amount  of  this  disturbance  is  so  great  as  to  amount  to  a  destruc- 
tion of  the  land,  or  to  show  that  the  property  in  the  materials 
must  have  been  intended  to  be  irrevocably  annexed  to  the  soiL 

For  these  reasons  I  think  that  the  decision  below  was  right  I 
therefore  move  that  the  judgment  below  be  affirmed,  and  the 
appeal  dismissed,  with  costs. 

Lord  Watson  :  — 

My  Lords,  I  also  have  come  to  the  conclusion  that  the  judgment 
of  the  Court  of  Appeal  ought  not  to  be  disturbed. 

I  am  of  opinion  that,  in  sinking  into  the  soil  the  foundations  of 
a  house,  chimney,  and  boiler  seat  connected  with  an  engine  for 
pumping  water  from  the  mine,  the  respondents  were  acting  within 
the  limits  of  their  customary  right.  The  practice  set  forth  in  the 
19th  article  of  the  admissions  made  by  the  parties,  on  the  trial  of 
the  cause  before  Lord  Coleridge,  must  be  taken  as  explanatory 
of  the  custom,  and  is  good  evidence  to  show  that  the  use  of  the 
"  surface  land  **  for  such  erections  as  those  in  question  has,  ever 
since  steam  power  has  been  employed  in  pumping,  been  regarded 
as  a  use  "  for  mining  purposes,"  within  the  meaning  of  the  fifth 
custom  scheduled  to  the  Act  of  1851.  That  is  confirmed  by  the 
terms  of  the  26th  custom,  which  obliges  the  owner  of  a  mine,  the 
working  of  which  is  impeded  by  water,  to  remunerate  any  stranger 
who  relieves  the  mine  by  means  of  the  old-fashioned  steam  engine. 

I  am  also  of  opinion  that  at  the  time  when  the  erec- 
tions in  *  dispute  were  taken  down  and  removed  the  inter-  [*  206] 
est  of  the  respondents  in  the  mine  had  not  come  to  an  end. 

It  is,  therefore,  unnecessary  to  consider  what  the  relative  rights 
of  the  parties  would  have  been  if  the  erection  of  these  buildings 
had  been  in  excess  of  the  powers  conferred  on  the  respondents  by 
the  mineral  customs,  and  if  the  interest  of  the  respondents  in  the 
mine  itself  had  terminated  before  their  removal. 

In  the  Act  of  1851,  and  in  the  scheduled  customs,  which  are 
therewith  incorporated,  and  are  therefore  of  statutory  authority, 
the  interest  of  the  miner  is  expressly  described  and  recognised  as 
that  of  ownership.     He  has  not  an  absolute  right  in  perpetuity. 


806  BONES  AND  MINE&ALS. 


Ho.  81.  —  Wake  y.  Hall,  8  App.  Cu.  806,  807. 


but  his  right  remains  that  of  an  owner  until  he  gives  up  possession 
of  the  mine,  or  is  dispossessed  by  competent  authority.  In  other 
words,  his  is  a  proprietary  right  derived  from  the  mineral  customs 
of  the  district,  and  subject  to  the  limitations  imposed  by  these 
customs. 

Accordingly  the  position  of  these  parties  at  the  time  when  the 
erections  in  question  were  made,  and  also  at  the  time  when  they 
were  removed,  was  this:  The  appellants  were  owners  of  the 
surface  land  to  which  the  buildings  were  affixed ;  the  respondents 
were  the  owners  of  the  mine  under  an  independent  customary 
title,  having  as  an  incident  of  that  title  the  right  to  erect  the 
buildings  for  the  purposes  of  their  mine.  I  do  not  think  that 
between  persons  so  situated  the  maxim  Qtcod  solo  tncddificatur 
solo  cedit  has  any  application. 

According  to  my  understanding  of  the  Eoman  law,  from  which 
it  is  derived,  the  maxim  applied  exclusively  to  two  classes  of 
persons :  either  to  those  who  built  in  alieno  solo  with  their  own 
materials  but  without  title  and  in  maid  fide,  or  to  those  who  so 
built  in  hondfidt  under  some  misconception  as  to  their  right  to  do  so. 
The  maldL  fide  builder  forfeited  his  structure  to  the  owner  of  the 
soil,  but,  on  the  other  hand,  the  bond,  fide  builder  had  a  right  to 
remove  his  materials  unless  the  owner  of  the  soil  gave  him  full 
compensation.  I  can  find  nothing  in  the  law  of  Bome  to  suggest 
that  the  maxim  contemplated  a  case  like  the  present,  which 
involves  no  question  of  bona  or  mala  fides,  and  relates  to  persons 
building  in  alieno  solo  by  virtue  of  a  proprietary  right  superior 

to  and  independent  of  the  title  of  the  landowner. 
[*  207]  *  There  is,  so  far  as  I  am  aware,  no  English  authority 
tending  to  establish  that  the  maxim  has  ever  been  regarded 
in  this  country  as  of  universal  application.  The  authorities  merely 
show  that  the  doctrine  which  it  is  understood  to  embody,  which 
is  not  the  same  as  the  doctrine  of  the  Boman  jurists,  has  been 
given  effect  to,  with  certain  differences,  in  the  three  classes  of  cases 
specified  by  Lord  Ellenborough  in  his  judgment  in  the  case  of 
Elwes  V.  Mawe,  2  Sm.  L.  C,  7th  ed.,  178.  I  assume  that  the  doc- 
trine would  receive  a  similar  application  in  cases  analogous  to 
these,  but  I  can  perceive  no  analogy  between  the  case  of  indepen- 
dent owners  like  the  appellants  and  respondents  and  the  cases  of  a 
tenant  who  has  no  title  except  a  lease  from  his  landlord,  or  of  the 
division  of  the  estate  of  a  deceased  into  heritable  and  movable  for 


K.  C.  VOL.  XVIL]      sect.  VI.  —  RULES  OF  CONSTRUCTION,  ETC.  807 

Ho.  81.  —Wake  y.  Hall,  8  App.  Cu.  907,  906. 

the  purposes  of  succession,  or  of  the  division  of  settled  estate 
between  the  personal  representatives  of  tenants  for  life  or  in  tail, 
and  the  remainder-man  or  reversioner.  For  these  reasons  I  am  of 
opinion  that  the  appellants  must  fail ;  but,  apart  from  them,  I  am 
disposed  to  think  that  the  terms  of  the  statute  and  customs  are 
conclusive  against  their  claim. 

In  my  opinion  all  erections  made  upon  or  affixed  to  the  solum  of 
the  surface  land,  in  virtue  of  the  powers  conferred  upon  the  miner 
by  the  fifth  custom,  constitute  "  mineral  property "  as  defined  in 
the  2nd  section  of  the  Act,  and  as  such  may  be  taken  in  execution 
and  sold,  in  order  to  pay  debts  recovered  or  penalties  awarded 
against  the  miner  under  a  judgment  of  the  Barmote  Court.  These 
and  other  provisions  of  the  statute  in  my  opinion  plainly  recognise 
the  fact  that  works  such  as  those  the  appellants  claim  are,  after 
their  erection,  owned  by  the  miner  —  are,  in  other  words,  his  prop- 
erty, subject  to  his  disposal  and  liable  to  be  taken  in  execution  for 
his  debts.  That  fact  is,  I  venture  to  think,  o*f  itself  sufficient  to  pre- 
vent the  application  of  the  maxim  to  the  present  case.  It  appears 
to  me  that  in  all  cases  arising  between  the  owner  of  the  land  in  fee 
and  a  third  party  making  the  erection,  the  maxim  QtLod  solo  ince- 
dificatur  solo  cedit,  if  applicable  at  all,  must  come  into  operation 
at  once.  An  agricultural  tenant  who  builds  a  barn  with  its  foun- 
dations sunk  in  the  soil,  ceases  the  moment  the  structure 
is  completed  to  be  owner  of  the  *  materials  composing  it,  [*  208] 
and  his  sole  interest  is  thenceforth  to  occupy  as  tenant, 
the  building  itself  having  become  the  property  of  his  landlord. 

I  have  only  in  conclusion  to  say  that  even  on  the  assumption 
that  the  appellants  had  a  right  to  buildings  annexed  to  and 
accessory  to  the  soil  as  in  a  question  with  the  respondents,  I  agree 
with  the  reasoning  by  which  the  noble  and  learned  Lord  on  the 
woolsack  has  demonstrated  that  the  buildings  in  dispute  must  be 
regarded  as  personalty. 

Lord  Bramwell:  — 

My  Lords,  in  this  case  the  plaintiffs  complain  that  the  defend- 
ants have  taken  down  buildings  fixed  to  the  soil  and  freehold  of 
the  plaintiffs,  and  have  removed  the  materials.  The  defendants 
admit  that  the  buildings  were  so  fixed  that  they  would  have  been 
part  of  the  freehold  and  would  have  gone  with  it  if,  for  example, 
they  had  been  for  dwelling  purposes  and  had  been  erected  by  a 
tenant  for  life.     They  admit  that  they  pulled  down  the  buildings 


808  MINES  AND   MINERALS. 


Ho.  81.  — Wak»y.  Eall,  8  App.  Oti.  908,  900. 


and  removed  the  materials,  contendmg  that  they  had  a  right  to  do 
80,  as  the  buildings  were  erected  by  them  or  their  predecessors  in 
title  with  their  own  materials,  the  property  in  which,  say  the  de- 
fendants, has  never  passed  from  them.  In  answer  to  this  the 
plaintiffs  rely  on  the  rule  quicquid  solo  plantatur  solo  cedit. 
The  defendants  deny  that  it  applies.  It  undoubtedly  applies 
where  such  buildings  have  been  erected  by  a  trespasser,  a  wrong- 
doer, whether  innocently  or  knowingly  so ;  why,  it  is  not  necessary 
to  determine.  The  defendants  say  they  were  not  wrongdoers. 
Mr.  Mellor  faintly  contended  that  they  were.  This  does  not  seem 
to  have  been  argued  in  the  Court  below,  and  I  think  reasonably. 
For  it  is  impossible  to  say  that  the  miners  might  not  sink  a  shaft 
as  they  had  done,  might  not  have  an  engine  to  work  the  mine,  and 
might  not  have  a  building  to  cover  the  engine.  It  seems  to  me 
clear  that  this  action  cannot  be  maintained  on  the  ground  that  the 
buildings  were  wrongful. 

But  the  rule  quicquid  solo  plantatur  solo  cedit  prevails  in 
another  class  of  cases,  viz.,  that  where  the  builder  is  not  a  trespas- 
ser ;  and  where  the  tenant  for  life  or  years  builds  a  build- 
[*  209]  ing  *  permanently  fixed  to  the  soil,  he  cannot  lawfully 
pull  it  down  as  against  the  reversioner  or  remainder-man. 
Here  again  it  is  not  necessary  to  consider  why  the  law  is  so  nor 
whether  it  is  reasonable.  If  it  is  because  the  building  is  a  wrong 
and  waste,  as  has  been  held,  it  does  not  apply  to  the  present  case. 
But  further,  the  relation  between  such  a  tenant  and  the  reversioner 
or  remainder-man  is  altogether  different  to  that  between  the  plain- 
tiffs and  defendants,  if  indeed  there  can  be  said  to  be  any  relation 
between  them.  The  defendants  are  tenants  or  workers  of  the  mine 
with  an  easement  on  the  plaintiffs'  land.  The  mine  owner,  the 
Duchy  of  Lancaster,  is  more  in  the  same  relation  to  the  defendants 
as  a  reversioner  to  a  tenant  than  are  the  plaintiffs.  There  is  no 
privity  between  the  plaintiffs  and  the  defendants.  That  the 
maxim  applies  where  there  is,  does  not  show  that  it  applies  where 
there  is  not.  I  know  of  no  other  case  where  it  does  apply. 
Without  saying  that  there  is  no  other  case,  I  cannot  see  why  the 
maxim  applies  in  this.  The  defendants  are  not  wrongdoers  like 
the  trespasser  I  have  supposed.  They  are  not  persons  who  had 
any  estate  or  term  in  the  land  of  which  the  plaintiffs  are  seised. 
No  doubt  the  maxim  is  expressed  in  general  terms  and  without 
qualification;  but  it  must  be  taken  with  reference  to  what  one 


B.  C.  VOL.  XVII.]      SECT.  VL  —  RULES  OF  CONSTRUCTION,  ETC.  809 

Ho.  81.  —  Wak»  y.  Eall,  8  App.  Cu.  909,  910. 

would  have  said  were  the  only  cases  in  which  there  could  be  a 
fixing  to  the  freehold,  viz.,  by  a  trespasser  or  by  a  tenant. 

But  if  no  reason  can  be  given  why  the  maxim  should  apply  to 
this  case,  plenty  of  reasons  can  be  given  why  it  should  not.  The 
defendants  are  lawfully  in  possession  of  the  premises.  They  or 
their  predecessors  lawfully  built  these  buildings,  which  are  essen- 
tial to  the  working  of  the  mine,  being  accessorial  to  the  engine 
and  works  ;  and  it  would  be  most  unreasonable  that  they  should 
have  to  leave  them  on  the  premises  —  as  unreasonable  as  that  they 
should  leave  the  engine.  On  this  ^ound  alone  I  should  advise 
your  Lordships  to  affirm  the  judgment. 

It  is  perhaps  dangerous,  as  leading  to  litigation,  to  add  what  I 
am  about  to  say,  but  it  appears  to  me  that  the  defendants'  case 
may  be  made  out  in  another  way.  I  think,  if  the  plaintiffs  chose 
to  insist  on  it,  that  the  defendants  were  bound  to  remove  these 
buildings.  They  have  a  right  to  use  the  surface  of  the  land  for 
mining  purposes.  But  when  those  purposes  are  fulfilled, 
I  think  *  the  miners  must  restore  the  surface  in  a  natural  [*  210] 
state ;  and  it  cannot  be  that  the  plaintiffs  have  an  option 
either  to  have  these  buildings  removed  or  left,  at  their  pleasure. 

Further,  I  am  of  opinion,  if  it  were  necessary  to  decide  it,  that 
the  principle  on  which  a  tenant  may  remove  trade  fixtures  would, 
if  the  defendants  were  tenants,  justify  the  removal  of  these  build- 
ings ;  and  that  the  defendants  cannot  be  in  a  worse  position  than 
such  tenants.  The  claim,  if  made  by  any  one,  should  in  reason 
be  made  by  the  mine  owner,  not  by  the  plaintiffs.  Suppose  the 
mine  is  again  worked,  are  new  engines  and  a  new  house  to  be 
put  up  ? 

Lastly,  it  was  contended  that  if  the  defendants  might  remove 
these  buildings  it  must  be  during  the  mining.  But  I  am  clear 
that  they  had  a  reasonable  time  afterwards  in  which  to  do  it; 
and  as  I  read  Lord  Coleridge's  judgment  he  has  found  that  it 
was  done  within  such  reasonable  time. 

I  agree,  therefore,  that  this  judgment  should  be  affirmed. 

Lord  FitzGeraxd:  — 

My  Lords,  this  case  was  most  carefully  considered  in  the 
primary  Court,  and  again  in  the  Court  of  Appeal,  and  was  fully 
and  ably  argued  at  the  bar  of  your  Lordships'  House.  Your 
Lordships  probably  reserved  judgment  not  by  reason  of  any 
inherent  difficulty  which   the  case  presented,  but  on  account  of 


810  MINES  AND  MINERALS. 


Ho.  81.  —  Wake  y.  Hall,  8  App.  Cas.  810,  811. 


its  novelty.  On  mature  consideration  I  had  arrived  at  the  same 
conclusion  as  that  which  has  been  announced  by  the  noble  and 
learned  Lord  (Lord  Blackburn). 

The  case  is  one  unaffected  by  authority,  and  is  completely  sui 
generis,  I  assume  that  the  hard  maxim  of  our  law,  quicquid 
plantatur  solo,  solo  cedit,  represents  a  rigid  rule  of  general  appli- 
cation to  all  cases  coming  within  its  ambit,  but  it  seems  to  me  to 
be  obvious  that  the  parties  to  this  litigation,  both  plaintiffs  and 
defendants,  stand  outside  its  limits,  and  that  their  rights  are  not 
to  be  determined  by  its  application.  They  do  not  come  within 
any  of  the  classes  defined  by  the  Lord  Chief  Justice  in  Mwes  v. 
Mawe,  2  Sm.  L.  C,  8th  ed.,  185,  or  deduced  by  the  learned 
[*  211]  editors  of  the  Leading  Cases  *  from  the  numerous  authori- 
ties referred  to  in  the  notes  to  that  case. 

I  do  not  know  that  much  advantage  can  be  derived  from  a 
minute  examination  of  those  authorities,  or  any  further  endeavour 
to  trace  the  origin  of  the  maxim  to  its  foundation  in  the  Roman 
law,  or  its  adoption  into  the  law  of  England  in  a  more  stringent 
form  at  a  time  when  little  heed  was  paid  to  rights  other  than 
those  of  the  owners  of  land.  Like  all  other  rules  it  has  received 
from  time  to  time  judicial  modifications  to  suit  the  exigencies  of 
modern  life  and  modern  progress,  and  numerous  exceptions  and 
qualifications  have  been  grafted  on  it  in  favour  of  trade,  manufcic- 
ture,  and  agriculture,  and  in  furtherance  of  the  rights  of 'creditors. 
It  seems  to  me  that  what  we  have  first  to  do  is  to  ascertain  as 
nearly  and  as  accurately  as  we  can  the  true  relation  of  the  plain- 
tiffs and  of  the  defendants  to  each  other. 

The  interest  which  the  plaintiffs  or  their  predecessors  took  in 
the  land  allotted  to  them  under  the  Inclosure  Act  of  1803  and 
the  award  of  1807  was  subject  to  the  rights  of  the  Crown  as  lord 
of  the  manor  of  High  Peak,  within  which  the  liberty  of  Great 
Hucklow  is  situate,  and  to  the  seigniories  and  royalties  incident 
to  such  manor,  and  was  also  subservient  to  the  customary  rights 
of  miners  existing  from  time  immemorial  and  subsequently  de- 
fined expressly  by  "  The  High  Peak  Mining  Customs  and  Mineral 
Courts  Act,  1851."  These  customs  had  probably  their  origin  at 
a  period  when  the  whole  ownership  of  the  soil  was  in  the  Crown, 
and  were  established  for  the  public  interests  in  order  to  encourage 
the  extrJtction  by  mining  operations  of  the  greatest  quantity  of 
lead  from  an  otherwise  unproductive  soil,  and  to  add  to  the 
revenue  of  the  duchy  by  increasing  the  royalties. 


R.  a  VOL.  xvn.]    sect,  vl  —  bules  of  construction,  etc.         811  * 

Vo.  31.— Wake  ▼.  Hall,  8  App.  Oaa.  811,  818. 

Whatever  their  original  foundation  may  have  been,  their  in- 
trinsic validity  cannot  now  be  questioned.  It  is  observable  that 
the  waste  lands  to  be  divided  under  the  Inclosure  Act  of  1803 
are  to  be  allotted  to  the  parties  interested  in  proportion  to  their 
respective  properties,  rights  of  common,  and  other  interests  in  the 
same,  but  saving  to  the  Crown  and  all  other  persons  "all  such 
rights,  titles,  and  interests  as  they  or  any  of  them  had  in  the 
lands  to  be  allotted  before  the  passing  of  the  Act,  or  could  or 
might  have  had  in  case  the  same  had  not  been  made." 

•  The  mine  of  the  defendants  in  the  place  in  question  [*  212] 
had  been  in  possession  of  and  worked  by  the  defendants 
and  their  predecessors  in  title  for  two  hundred  years  prior  to  and 
down  to  1872,  and  the  plaintiffs  took  their  allotment  under  the 
Inclosure  Act  subject  to  the  rights  and  interests  of  the  predeces- 
sors of  the  defendants,  whatever  those  rights  and  interests  were. 

It  does  not  appear  when  the  buildings  in  question  were  erected 
save  that  they  had  been  erected  prior  to  1854.  The  erection  may 
have  been,  and  probably  was,  at  a  much  earlier  period,  and  in 
substitution  for  some  previously  existing  buildings,  but  all  were 
erected  for  mining  purposes,  and  were  similar  to  those  which  it 
has  been  the  practice  of  the  district  for  miners  to  erect,  and  from 
time  to  time  to  vary  and  alter,  **  as  improvements  were  discovered 
and  introduced." 

I  cannot  doubt  for  a  moment  but  that  the  custom  would  autho- 
rise the  miner  to  use  all  modern  appliances,  and  that  he  was  not 
confined  to  the  use  of  such  as  existed  at  the  time  of  the  presumed 
grant  of  these  mining  rights. 

I  now  turn  to  the  Act  of  1851,  but  before  criticising  its  pro- 
Visions  I  desire  to  observe  that  in  the  course  of  the  arguments  on 
the  part  of  the  plaintiffs  too  narrow  a  character  was  given  to  that 
Act  as  one  providing  only  for  the  interests  of  miners  inter  se. 
The  Act  goes  much  further.  It  declares  in  its  preamble  that  the 
Queen,  in  right  of  her  Duchy  of  Lancaster,  is  seised  of  the 
hundred  of  High  Peak,  within  which  there  is  a  district  "called 
the  King's  Field,  otherwise  the  King's  Fee,"  within  which  "  all  the 
subjects  of  the  realm  have  from  time  immemorial  had  or  claimed 
to  have  a  right  to  search  for,  sink,  and  dig  mines  or  veins  of 
lead  ore,  subject  to  certain  ancient  mineral  laws  and  customs  and 
upon  paying  certain  duties  to  her  Majesty,"  &c.  It  recites  that 
the  mineral  laws  and  customs  of  the  King's  Field  are  uncertain 


812  MINES  AND  MINERALS. 


Ho.  81. —Wake  y.  Kail,  8  App.  Cai.  818,  818. 


and  undefined,  and  in  many  respects  "  inapplicable  to  the  present 
mining  operations  within  the  King's  Field,"  and  that  "it  is  advis- 
able that  the  said  mineral  laws  and  customs  should  be  revised, 
altered,  and  amended  so  as  to  be  made  applicable  to  the  present 
state  of  mining  operations  within  the  said  hundred,  and  that  the 
jurisdiction  of  the  Great  and  Small   Barmote  Courts  should   be 

more  clearly  defined  and  settled 
[*  213]  *  The  statute  then  proceeds  to  provide  for  the  constitu- 
tion,  jurisdiction,  and  procedure  of  the  High  Peak  Bar- 
mote  Courts,  and  for  the  appointment  of  a  Steward  and  other 
Judges  of  these  Courts,  and  fixes  their  duties.  The  Courts  are  to 
be  Courts  of  Eecord,  and  have  jurisdiction  (amongst  others)  in 
trial  of  actions  of  title,  trespass,  and  debt,  and  the  mineral  laws  and 
customs  of  that  part  of  the  hundred  over  which  these  Courts  have 
jurisdiction  are  those  mentioned  in  the  Act 

The  noble  Lord  (Lord  Blackburn)  has  referred  to  many  of  the 
articles  and  customs  contained  in  the  schedule  to  the  Act,  and  I 
will  confine  myself  to  additional  observations  on  them. 

The  second  custom,  which  authorises  "the  landowner  to  sell 
and  remove  from  his  land  the  calk,  feagh,  spar,  and  other  minerals 
(except  lead  ore),"  limits  that  right  by  adding,  "  when  not  required 
for  the  use  of  the  mine,  but  not  so  as  to  destroy  or  injure  any 
mineral  property." 

The  sixth  scheduled  custom  provides  for  the  transfer  of  the 
miner's  interest  in  his  mine  by  an  entry  in  the  barmaster*s  book. 
Custom  10  settles  the  right  of  the  first  finder  of  a  vein  and  the 
ascertainment  of  its  limits ;  and  from  that  to  the  19th  various 
provisions  are  made  for  the  settlement  of  rights  and  enforcement 
of  them  if  disputed. 

Returning  again  for  a  moment  to  the  statute,  it  will  be  found 
that  in  its  definitions,  sect.  2,  the  words  "  mineral  property  "  shall 
include  mines  and  veins  of  lead,  "and  the  works,  rights,  and 
appurtenances  connected  therewith,  and  also  lead  ore  and  all 
tools,  materials,  goods,  chattels,  and  efifects  used  in  searching  for, 
getting,  cleansing,  or  preparing  lead  ore,  whether  such  tools,  &c., 
be  found  in  or  upon  any  mine  or  works  or  elsewhere ; "  and  by 
sect.  32,  when  the  amount  of  any  judgment  recovered  in  the  Bar- 
mote  Court  or  any  penalty  imposed  by  the  Steward  shall  be  un- 
paid, the  Steward  shall  issue  his  warrant,  and,  thereunder,  the 
barmaster  is  required  to  take  possession  of  any  "  mineral  property  " 


R  C.  VOL.  XVn.]        SECT.  VI.  — BULKS   OP  CONSTRUCTION,  ETC.  813 

Vo.  81.  —  Wak»  ▼.  Hall,  8  App.  Oai.  818,  814. 

belonging  to  the  debtor,  and  shall  sell  the  same  by  ticket  or  by 
public  auction  to  raise  the  sum  mentioned  in  Ihe  warrant. 

It  will  be  observed  thus  that  the  mineral  property  liable  to  be 
taken  in  execution  for  the  miner's  debt  includes  not  only  tools, 
materials,  goods,  chattels,  and  effects,  but  also  the  mine 
itself,  *  with  its  works,  rights,  and  appurtenances.  The  [*  214] 
whole  is  thus  treated  £is  in  the  nature  of  personal  estate 
liable  to  be  sold  for  the  miner's  debts,  and  it  would  not  require 
any  strained  interpretation  to  come  to  the  conclusion  that  under 
the  term  "works"  would  be  included  machinery  and  buildings 
erected  for  mining  purposes  and  necessary  for  the  working  of  the 
mines,  and  which,  according  to  admission  No.  19,  it  has  been  the 
the  practice  in  the  district  for  miners  to  erect,  and  from  time 
to  time  to  alter  and  vary  as  improvements  were  discovered  and 
introduced. 

In  endeavouring  to  trace  the  relations  of  the  parties  to  each 
other,  it  will  be  observed  that  the  title  of  the  landowner  seems  to 
be  largely  ignored,  and  as  if  subordinated  to  that  of  the  miner. 
The  landowner  is  but  twice  mentioned  in  the  schedule  of  customs, 
viz.,  in  the  1st,  in  giving  him  a  right  to  the  expenses  of  levelling 
the  land  after  an  unsuccessful  search  for  minerals,  and  in  the  2nd 
giving  him  a  limited  right  to  remove  from  his  land  stuff  brought 
up  in  the  course  of  mining  operation.  But,  on  the  other  hand,  the 
miner's  title  seems  to  be  dealt  with  as  superior  and  predominating; 
he  is  entitled  to  search  for,  sink,  and  dig  mines  in  or  under  all 
manner  of  lands  of  whose  inheritance  soever  they  may  be ;  if  a 
mine  is  found,  he  is  at  liberty  to  work,  and  makes  no  manner  of 
compensation  or  payment  to  the  landowner.  So  long  as  his  mine 
shall  be  worked  he  shall  be  entitled  without  any  payment  "  to  the 
exclusive  use  of  so  much  surface  land  as  shall  be  thought  neces- 
sary," &C.,  for,  amongst  other  purposes,  "  dressing  his  ore,  making 
meers  or  ponds,  and  conveying  water  thereto,  and  any  other 
mining  purposes."  The  **  exclusive  use  of  the  surface  land  "  seems 
laiger  than  a  mere  easement  over  the  surface  of  the  land. 

The  concluding  words  of  custom  5  are  very  comprehensive,  and 
it  seems  difficult  to  hold  that  the  erection  of  suitable  machinery 
for  working  the  mines,  and  the  necessary  buildings  for  the  protec- 
tion and  due  use  of  such  machinery,  would  not  come  within  these 
words.  When  once  the  mine  has  been  found,  and  so  long  as  it 
continues  to  be  worked,  the  title  of  the  miner,  not  only  to  the 


814  MINES  AND   MINERALS. 


Ho.  81.  —Wake  ▼.  Eall,  8  App.  Oai.  814,  816. 


mine,  but  also  to  the  necessary  "  surface  land,"  with  rights  of  way 
and  water,  seems  to  be  complete  and  independent  of  the  land- 
owners. He  has  full  power  of  sale  and  transfer,  or  other 
[*  215]  disposition,  *  as  he  may  think  fit,  and  until  the  miner  shall 
cease  to  work  his  mine,  the  landowner's  interest  in  the 
mine  and  in  the  surface  land  necessary  for  its  working  is  in 
abeyance. 

On  a  review  of  the  position  of  the  parties  to  each  other,  it  will 
thus  be  perceived  that  the  defendants  did  not  derive  from  or  under 
the  plaintiffs,  and,  on  the  contrary,  the  plaintiffs  took  subject  to 
all  the  customary  rights  of  the  defendants,  and,  amongst  others, 
to  the  possession  and  use  of  the  "  surface  land "  for  the  purposes 
defined  by  the  statute,  and  to  which  the  19th  admission  is 
applicable. 

The  defendants  were  not  tenants  or  trespassers,  and  the  plain- 
tiffs were  not  landlords  or  lessors.  There  was  no  manner  of  con- 
tract between  them.  The  defendants  had  rights,  not  derived  from 
the  plaintiffs'  ownership  of  the  surface,  but  in  superiority  to  it,  and 
to  which  that  ownership  was  servient;  and  amongst  others  the 
right  to  erect  buildings  for  mining  purposes,  and  to  alter  or  take 
them  down  as  might  be  expedient,  and,  in  my  opinion,  also  to 
remove  the  materials. 

This  is  not  the  case  of  a  novel  claim  arising  out  of  a  new  state 
of  circumstances,  but  is  the  assertion  of  an  alleged  ancient  right, 
springing  from  unquestioned  immemorial  customs,  declared  and 
established  by  a  modern  statute.  It  does  not  appear  to  have  ever, 
before  the  present  occasion,  been  the  subject  of  controversy  or 
litigation,  and  when  it  now  comes  before  us  we  apply  to  it  the 
principles  of  common  right  and  of  common  justice. 

The  right  of  the  defendants  to  remove  the  fixed  machinery, 
though  questioned  in  argument,  has  not  been  raised  before  us  by 
appeal,  and  I  can  see  no  ground  whatever  on  which  so  far  to 
doubt  or  question  the  decision  in  the  Courts  below.  Mr.  Mellor, 
however,  argued  for  the  plaintiffs  that  even  in  that  case,  and 
treating  the  machinery  as  personalty,  and  therefore  removable, 
•yet  that  the  same  rule  did  not  apply  to  the  **  building,"  which 
being  fixed  into  the  land  became,  by  an  inexorable  rule  of  law,  a 
part  of  the  land.  If  the  rule  was  applicable  to  the  present  case, 
there  would  probably  arise  the  question  of  intention,  whether  the 
erections  in  question  were  made  for  the  purpose  of  benefiting  the 


B.  C.  VOL.  XVU.]        SECT.  YL  —  RULES  OF  CONSTRUCTION,  ETC.  815 

Vo.  81.  — Wake  ▼.  Eall,  8  App.  Cu.  816,  816.— Hotet. 

inheritance  in  the  land  or  for  the  more  complete  use  and  protec- 
tion of  the  machinery  as  chattels.  If  such  a  question 
could  arise  *  in  the  present  case,  the  ordinary  presumption  [*  216] 
would  be  clearly  rebutted.  The  buildings  in  question,  if 
not  by  the  statute  and  customs  personalty,  were  but  accessory  to 
the  machinery  and  built  to  cover  and  protect  it,  and  the  one  was 
as  much  removable  as  the  other. 

In  my  humble  opinion,  the  machinery  and  buildings  never  ceased 
to  be  the  property  of  the  miners  and  removable  by  them;  both 
are  treated  together  as  forming  mineral  property  —  property  of  the 
miners  in  the  nature  of  personalty,  and  there  seems  no  pretence 
for  the  contention  that  the  right  to  remove  them  had  been 
abandoned. 

For  these  reasons  I  adopt  the  decision  of  the  Court  below,  and 
concur  in  the  opinion  that  this  appeal  should  be  dismissed. 

Judgment  appealed  from  affirmed ;  and  appeal  dismissed 
with  costs. 

Lords*  Journals,  19th  March,  1883. 

ENGLISH  NOTES. 

The  decision  in  Wake  v.  Hall  was  followed  and  applied  by  Chittt,  J., 
in  Ward  v.  ConrUess  of  Dudley  (1887),  67  L.  T.  20.  There  was  a 
question  between  executors  (representing  the  personal  estate)  of  the 
late  Earl  of  Dudley,  who  was  tenant  for  life  of  a  large  mining  estate, 
and  persons  succeeding  by  way  of  remainder  to  the  real  estate  and  residu- 
ary personalty  under  the  settlement  of  a  former  Earl  of  Dudley.  There 
were  besides  the  ordinary  mining  plant,  various  works,  such  as  blast 
furnaces,  boilers  and  engines  erected  and  used  upon  the  estate,  for  the 
purpose  of  working  up  the  ore  got  from  the  mines  into  a  merchantable 
state.  Some  of  these  works  had  been  erected  by  the  settlor,  and  as  to 
these  it  appeared  clear  that  they  formed  part  of  the  settled  estate. 
There  were  others  erected  by  the  tenant  for  life  ;  and  these,  so  far  as 
they  could  be  removed  without  such  disturbance  "  as  to  amount  to  a 
destruction  of  the  land"  (employing  the  expression  of  Lord  Blackburn, 
p.  805,  supra)  J  Mr.  Justice  Chitty  considered  the  executors  of  the  tenant 
for  life  entitled  to  remove,  as  belonging  to  his  personal  estate.  The 
learned  Judge,  therefore,  held  to  be  removable  the  following  things  (all 
erected  by  the  tenant  for  life) :  (1)  Certain  blast  furnaces ;  (2)  a  steam 
engine  and  a  building  erected  merely  for  the  purpose  of  covering  it; 
(3)  calcining  kilns ;  (4)  boilers  (not  being  boilers  put  in  to  replace 
boilers  forming  part  of  an  engine  existing  in  the  settlor's  time);  (5)  gas 


816  MINES  AND  MINERALS. 


Ho.  38. — Haywood  y.  Cope.  —  Bnlo. 


pipes  which  could  he  removed  without  injury  to  the  machinery  existing 
on  the  premises  in  the  settlor's  time;  (6)  machinery,  including  what  is 
described  as  fixed  power  machinery  (driving  power),  as  well  as,  of  course, 
movable  machinery,  such  as  lathes  and  the  like,  —  but  not  substantially 
built  workshops,  within  which  such  machinery  was  placed ;  (7)  the  per- 
manent way  of  a  railway  (consisting  of  the  rails  and  sleepers)  which  had 
been  laid  down  for  the  convenient  carriage  of  coal,  &c.,  to  and  from  the 
collieries;  (8)  fixed  engines  used  for  hauling  on  steep  gradients  and  the 
brick  sheds  erected  merely  for  the  purpose  of  protecting  such  engines; 
(9)  weighing-machines.  The  learned  Judge  then,  on  the  invitation  of 
the  counsel  for  the  parties,  proceeded  to  deal  with  a  point  which  he 
could  not  have  dealt  with  unless  a  compromise  had  been  proposed,  — 
as  to  the  measure  of  value  to  be  allowed  on  the  assumption  of  these 
things  being  left  in  situ  for  the  carrying  on  of  the  business  for  the  benefit 
of  the  infants  entitled  to  the  land.  The  question  lay  between  the  value 
of  the  things  considered  as  part  of  a  going  concern,  and  the  breaking  up 
price,  which  was  all  that  could  be  realised  if  parties  stood  on  their  extreme 
rights.  He  thought  it  a  fair  compromise  as  an  arrangement  to  be  sanc- 
tioned by  the  Court  that  the  price  should  be  assessed  on  the  basis  of  an 
intermediate  value  between  these  extremes. 

The  decision  of  Mr.  Justice  Chittt,  as  to  the  railway,  was  followed 
by  the  Queen's  Bench  Division  in  Ireland  in  Antrim  v.  Dohbs  (1891), 
30  L.  B.  Ir.  424,  where  rails  laid  down  by  a  lessee  of  mines  under  a 
reservation  were  held  liable  to  be  taken  in  execution  under  a  fi.  fa. 
agaiust  the  lessee. 


Section  VII.  —  Special  Rules  as  to  Remedies. 

No.  32.  — HAYWOOD  v.  COPE. 
(1858.) 

RULE. 

An  agreement  for  a  lease  of  a  mine  will  not  be  denied 
specific  performance  on  the  ground  of  uncertainty,  in  the 
sense  that  the  existence  of  minerals  which  can  be  profitably 
worked  is  merely  speculative. 

The  mere  taking  possession  is  not  an  acceptance  of 
title. 


B.  a  VOL.  xvil]    sect.  Tn.-»  special  bulbs  as  to  remedies.      817 

Ho.  88.— Htjwood  y.  Cope,  86  Boat.  140. 


Haywood  v.  Cope. 

25  Bear.  140-154  (s.  c.  27  L.  J.  Ch.  468;  4  Jar.  (N.  S.)  227). 

Minerals. — Agreement  for  Lease, — Specific  Performance. — Acceptance  of  Title. 

A.,  by  contract  in  writing,  agreed  with  B.  to  take  a  lease  of  '^  those  two  [140] 
seams  of  coal  known  as  *  the  two-feet  coal '  and  the  '  three-feet  coal '  lying 
under  lands  hereafter  to  be  defined  in  the  Bank  End  estate,"  and  B.  agreed  to 
let  to  A.  'Hhe  before-mentioned  seams  of  coal."  Hdd,  that  the  contract  was 
sufficiently  definite  to  enforce,  and  that  the  true  construction  of  it  was,  tliat  the 
boundaries  of  the  estate,  which  consisted  of  about  twenty-seven  acres,  were  to 
be  thereafter  defined. 

A  draft  lease  was  prepared  by  the  lessor,  in  pursuance  of  a  written  contract, 
which  was  not  objected  to  by  the  lessee,  who  afterwards  refused  to  complete.  Hddy 
that  the  draft  lease  could  not  be  used  for  the  purpose  of  controlling  or  explaining 
the  contract  itselil 

The  plainti£f  had  worked  the  coal  nnder  his  estate,  but  abandoned  it  as  nn- 
profitable.  Twenty  years  afterwards,  the  defendant  cleared  the  pit  and  examined 
tlie  coal  in  the  shaft  with  other  persons,  and  subsequently  contracted  for  a  lease. 
The  colliery  turned  out  to  be  worthless.  Held,  that  the  defendant  could  not  resist 
a  specific  performance,  on  the  ground  of  the  plaintiff  not  having  communicated 
the  fact  of  his  having  worked  the  mine  and  found  it  unprofitable. 

A  person  contracting  for  the  lease  of  a  mine  cannot  resist  its  performance, 
on  the  ground  of  his  ignorance  of  mining  matters,  and  of  the  mine  turning  out 
worthless. 

Specific  performance  is  a  matter  of  discretion,  to  be  exercised,  however, 
according  to  fixed  and  settled  rules,  and  the  mere  inadequacy  of  consideration 
IS  not  a  ground  for  exercising  such  discretion  by  refusing  a  specific  performance. 

Taking  possession  of  a  mine  by  intended  lessee  held  not  to  be  an  acceptance 
of  the  title. 

The  plaintiff  was  seised  of  a  farm  called  the  Bank  End  farm, 
situate  in  the  parish  of  Norton  in  the  Moors,  in  Staffordshire, 
and  of  the  coals  and  minerals  under  it,  and  for  working  which 
shafts  had  been  previously  sunk,  which  had  been  visibly  aban- 
doned. The  farm  consisted  of  about  twenty-seven  acres,  two  roods, 
and  two  perches. 

The  defendant  applied  to  the  plaintiff  for  a  lease  of  the  coal 
mines,  and  after  some  negotiations,  and  after  the  defendant,  ac- 
companied by  some  friends,  had  examined  the  shaft,  as  far  as  was 
possible  (see  post,  p.  821),  the  plaintiff  and  defendant,  on  the  15th 
of  January,  1855,  signed  the  following  agreement :  "  Mr.  Charles 
Cope  agrees  with  Howard  Haywood,  Esq.,  for  those  two  seams  of 
VOL.  XVII. — 52 


818  MIl^KS   AND   MINERALS. 

Ho.  8S.— Htjwood  y.  Oope,  95  Bmt.  140-142. 

coals,  known  as  the  two-feet  coal  and  three-feet  coal,  lying  under 
lands  to  be  hereafter  defined,  in  the  Bank  End  estate,  near  Norton^ 
in  the  county  of  Stafford,  at  the  rate  of  nine  pence  per  ton 
[*  141]  for  all  coals  and  *  slack  going  over  a  weighing  machine^ 
112  lbs.  to  cwt.,  or  2240  lbs.  per  ton,  minimum  rent  £100 
per  annum,  on  lease  of  fourteen  years.  Mr.  Cope  to  pay  for  all 
surface  trespass,  at  the  rate  of  £5  per  acre,  to  commence  paying- 
minimum  rent  within  eighteen  months  from  date  of  agreement, 
all  coals  and  slack  sold  or  raised  in  the  intermediate  time  to  be 
paid  for,  at  the  rate  of  9d  per  ton.  Howard  Haywood,  Esq.,  agrees 
to  let  to  Mr.  Charles  Cope  the  before-mentioned  two  seams  of  coala 
at  the  price  before  mentioned." 

Shortly  after  the  agreement  had  been  signed  the  defendant 
entered  into  possession.  He  commenced  working  the  coal  mines, 
and  he  continued  to  work  them  regularly  until  July,  1855,  and 
off  and  on  until  October,  1856. 

On  the  26th  of  May,  1855,  the  plaintiff's  solicitor  forwarded  to- 
the  defendant,  for  his  approval,  a  draft  lease,  in  which  the  partic- 
ulars of  the  land  under  which,  the  mines  lay  were  defined  and 
scheduled.  The  defendant  made  no  objection  to  the  draft,  and 
retained  it,  notwithstanding  various  applications  made  to  him  to- 
return  it.  At  Christmas,  1856,  the  defendant  first  objected  that 
the  coals  had  not  turned  out  so  well  as  he  expected,  and  in 
January,  1857,  he  declined  to  accept  a  lease,  "  on  the  ground  that 
the  mines  were  not  (as  he  alleged)  what  they  were  represented  to 
be,  either  as  to  thickness  or  quality ;  and  that  his  surveyor  had 
stated  that  the  coal  was  absolutely  not  worth  getting."  The 
defendant  afterwards  returned  the  draft  lease. 

On  the  26th  of  March,  1857,  the  plaintiff  filed  this  bill,. 
[*  142]  for  a  specific  performance  of  the  contract;  for  an  *  account 
of  the  coal  worked,  and  for  payment  by  the  defendant  of 
the  royalty  and  rent. 

The  defendant  resisted  the  specific  performance  on  the  ground 
of  the  uncertainty  of  the  contract,  of  the  misrepresentation  and 
concealment  of  the  plaintiff,  of  the  delay  which  had  occurred, 
and  of  the  hardship  of  being  obliged  to  pay  £100  a  year  during 
the  remainder  of  the  time,  without  receiving  any  benefit  from 
the  mines. 

Mr.  Selwyn,  Mr.  Hadden,  and  Mr.  Jessel  for  the  plaintiff. 
The  defendant  examined  the  mine  and  acted  on  his  own  judg- 


B.  G.  VOL.  XVIL]      sect.  VIL  —  SPECIAL  BULES  AS  TO  BEMEDIES.        819 
Vo.  82.  —  Haywood  ▼.  Oope,  86  Baav.  14»-14e. 

ment ;  he  cannot  now  repudiate  the  contract,  merely  because  the 
collieries  have  turned  out  less  profitable  than  he  anticipated. 

Mining  operations  are  always  of  a  doubtful  and  specula-  [143] 
tive  character;  the  defendant  had  the  same  sources  of  in- 
formation open  to  him  as  the  plaintiff,  and  he  availed  himself  of 
them;  he  cannot,  therefore,  complain;  Jennings  v.  Broughtony 
17  Beav.  234,  5  De  G.  M.  &  G.  126;  Clapham  v.  Shillito,  7 
Beav.  146. 

Mr.   R  Palmer  and   Mr.   Southgate   for   the  defendant  [144] 
argued  (inter  alia)  that  the  contract  was  too  vague  and 
uncertain  in  its  terms.     They  also   suggested   misrepresentation, 
and  other  usual  grounds  for  resisting  specific  performance. 

Mr.  Selwyn,  being  called  on  to  reply  as  to  the  uncer-  [145] 
tainty  of  the  agreement,  argued,  that  there  was  suflScient 
certainty  in  the  agreement  as  to  the  subject  to  be  leased ;  it  was 
the  two  seams  of  coal  under  the  plaintiff's  estate  ;  and  that  which 
was  "  to  be  hereafter  defined  "  was  the  boundary  of  the  estate. 
He  referred  to  Owen  v.  Thomas,  3  MyL  &  K.  353 ;  in  which  there 
was  a  contract  to  sell  "the  house  in  Newport,"  without  any 
further  description,  except  that  the  contract  referred  to  the  deeds 
being  in  the  possession  of  Mr.  D. :  it  was  held  that  the  subject 
of  the  contract  was  sufficiently  defined. 

Sir  John  Komilly,  M.  E.  [146] 

I  am  of  opinion  that  the  plaintiff  is  entitled  to  a  decree 
for  specific  performance. 

The  first  objection  is  upon  the  terms  of  the  contract,  which  are 
said  to  be  too  vague  to  be  carried  into  effect. 

The  words  are  these :  —  Cope  agrees  with  Haywood  "  for  those 
two  seams  of  coal  known  as  the  *  two-feet  coal '  and  the  '  three- 
feet  coal,' "  lying  under  lands  to  be  hereafter  defined  in  the  Bank 
End  estate,  near  Norton ;  and  Mr.  Haywood  agrees  to  let  to  Cope 
the  before-mentioned  two  seams,  at  the  price  before  mentioned. 
It  is  said  that  this  is  an  agreement  to  lease  an  uncertain  quantity 
of  land,  and  therefore  that  it  is  too  vague  to  be  enforced.  It  is 
so  if  this  be  the  right  construction  of  the  contract.  But,  on  the 
other  hand,  it  is  said,  the  proper  way  to  read  it  is  this,  —  as  an 
agreement  to  lease  two  seams  of  coal,  lying  under  the  lands  of 
the  Bank  End  estate,  the  boundaries  of  which  are  to  be  hereafter 
described  and  defined. 

I  think  this  is  the  correct  meaning  of  the  contract,  and  this 


820  MWES   AND   MINERALS. 


Ho.  Sa.  —  Haywood  t.  Ckvpo,  85  Boat.  146-148. 


appears  to  have  been  the  meaning  of  the  contract  attached  to  it 
hj  the  parties  themselves  on  both  sides. 

I  find,  from  the  evidence,  that  the  Bank  End  estate  is  not  an 
indefinite  or  large  tract,  but  is  a  name  given  to  a  small  farm  be- 
longing to  the  plaintiff,  containing  between  twenty-seven 
[*  147]  and  twenty -eight  acres  of  land.  *  I  find  that  though 
contests  have  arisen  between  the  plaintiff  and  defendant 
on  the  subject  of  the  contract,  yet  that  it  was  never  suggested, 
until  the  papers  came  before  the  professional  advisers,  that  the 
subject  matter  of  the  contract  was  in  doubt,  or  that  the  extent  of 
the  land  under  which  the  coal  was  intended  to  be  demised  waa  a 
matter  of  doubt,  and  one  to  be  afterwards  settled  and  agreed  on ; 
on  the  contrary,  when  the  draft  lease  was  prepared  and  sent  to 
the  defendant,  in  May,  1855,  no  observation  was  made  with 
respect  to  the  description  or  extent  of  the  parcels  aa  contained 
in  that  document. 

It  is  quite  clear,  as  has  been  observed,  that  this  document  can- 
not be  used  for  the  purpose  of  controlling  or  explaining  the 
contents  of  the  contract  itself;  but  it  does  show  what  was  the 
intention,  and  that  no  doubt  existed  in  the  mind  of  the  parties 
themselves  with  reference  to  the  meaning  of  that  contract.  I 
think  the  construction  I  have  put  on  this  document,  which  is 
the  plain  and  natural  one,  is  that  which  the  parties  themselves 
put  upon  it,  and  that  it  never  entered  into  the  heads  of  either  of 
them,  until  the  suit  was  instituted,  that  the  whole  of  the  two 
seams  of  coal  under  the  Bank  End  estate  was  not  to  be  demised, 
but  only  some  portion  of  it,  which  was  afterwards  to  be  agreed 
on.  I  believe  that  the  defendant  considered  himself  entitled  to 
work  any  part  of  the  coal  under  the  farm,  and  that  the  words 
**to  be  afterwards  defined"  merely  meant  this: — that  there  was 
to  be  an  accurate  description  of  the  farm  under  which  the  coal 
was  to  be  taken. 

The  objection  therefore  which  was  primarily  put  forward  on 
the  construction  of  the  contract,  in  my  opinion,  fails. 

The  next  objection  is  the  misrepresentation,  or  rather 
[*  148]  *  a  suppression,  of  the  truth.  It  is  shown  that  twenty 
years  before  the  contract,  the  plaintiff  worked  these  seams 
of  coal,  and  then  abandoned  the  work  because  it  was  not  prof- 
itable. I  think  this  objection  also  fails.  There  were  two  pits 
on  the  ground;  before  entering  into  the  arrangement  with  the 


K.  0.  VOL.  XVII.]      SECT.  VII.  —  SPBCIAL  RULES  AS  TO  REMEDIES.         821 
Ho.  82.— Haywood  t.  Ckvpo,  85  BeaT.  148, 148. 

plaintiff,  the  defendant  applied  for  leave  to  have  these  pits,  or 
one  of  them,  at  least,  cleared,  that  he  might  be  at  liberty  to 
examine  the  coal  in  the  shaft.  This  was  done.  He  went  down 
himself,  and  took  with  him  three  other  persons,  for  the  purpose 
of  examining  and  ascertaining  the  value  and  nature  of  the  seams 
of  coaL  It  was  not  till  after  this  had  been  done  that  he 
entered  into  this  agreement  with  the  plaintiff.  He  says,  that  he 
had  no  knowledge  of  mines  and  coal,  and  that  he  was  wholly 
ignorant  of  these  matters.  He  ought,  then,  to  have  employed 
some  person  who  had  a  proper  knowledge  for  that  purpose^ 
which,  I  believe,  he  did.  It  would  be  no  excuse  for  a  man,  who 
had  himself  personally  inspected  a  house,  for  the  purpose  of 
seeing  whether  it  was  in  a  proper  state  of  repair,  afterwards  to 
contradict  his  own  judgment,  on  the  ground  that  he  was  not  a 
surveyor,  and  was  unable  to  say  whether  the  house  was  in  a 
suflBcient  state  of  repair  or  not.  Here  he  did  not  trust  to  his 
own  judgment,  but,  as  I  have  already  observed,  three  other 
persons  accompanied  him,  some  of  whom  seem  to  have  given  him 
their  opinion. 

With  reference  to  Mr.  Brindley,  I  think  it  very  immaterial 
whether  he  did  or  did  not  state  the  words  which  are  imputed  to 
him.  I  see  no  reason  to  doubt  that  what  he  said  (if  he  said  any- 
thing) was  hand  fide,  and  that  he  6onA  fide  believed  it  was  the 
real  value  of  the  land,  and  the  evidence  satisfies  me,  that  the 
defendant  took  the  lease,  not  on  the  faith  of  the  repre- 
sentations of  Brindley,  *  if  he  made  any,  but  on  his  own  [*  149] 
opinion  and  that  of  others,  as  to  the  value  of  the  mine 
to  be  worked. 

The  next  question  is,  was  the  plaintiff  bound  to  say  that  he 
had  worked  the  mine  and  that  he  had  found  it  unprofitable? 
That  some  one  had  worked  and  abandoned  it  was  obvious,  for 
there  were  the  shafts  and  the  abandoned  workings  which  the 
defendant  examined.  Was  it  incumbent  on  the  plaintiff  to  in- 
form him  that  he  was  the  person  who  had  worked  it  some  twenty 
years  before,  and  found  it  to  be  not  worth  working  ?  It  is  to  be 
observed,  that  the  subject  matter  of  this  contract  is  a  mine,  that 
is  to  say,  seams  of  coal,  which  may  turn  out  better  or  worse,  and 
is  always,  in  some  degree,  a  speculation.  It  may  turn  out  better, 
or  it  may  turn  out  worse,  and  it  is  well  known  that  leases  and 
sales  are  always  made  with  reference  to  this  circumstance.     With 


822  HIKES  AND  MINERALS. 


Ho.  82.  —Haywood  t.  Cope,  85  BoaT.  148,  150. 


the  exception  of  knowing  that  the  plaintiff  had  worked  it,  the 
defendant  knew  as  much  as  anybody  could  know  by  his  own 
examination ;  but  whether  the  seams  were  to  improve  or  to  dete- 
riorate was  a  matter  which  could  only  be  ascertained  by  the 
future  working.  They  have  turned  out  ill,  but  the  consequence  of 
that  is  not,  in  my  opinion,  that  the  defendant  can  reject  the  con- 
tract, any  more  than  the  plaintiff  could  have  rejected  it,  or  have 
demanded  higher  terms,  if  the  seams  had  turned  out  profitable. 

Another  objection  is  the  length  of  time  that  has  elapsed  before 
the  bill  was  filed.  This  also  appears  to  me  to  fail.  The  defendant 
received  the  proposed  draft  of  the  lease  in  May,  1855,  he  continued 
working  it  till  July,  1855,  he  then  complained  of  the  mine,  and 
said  it  must  be  abandoned ;  but  it  appears  from  the  evidence  that 

he  worked  the  mine,  on  and  off,  down  to  October,  1856. 
[•  150]       *  The  solicitor  of  the  plaintiff,  who  sent  the  draft  of  the 

lease  on  the  26th  of  May,  1855,  also  says,  that  he'  received 
no  communication  of  any  sort  from  the  defendant  or  his  solicitor, 
in  answer,  till  the  month  of  January,  1857,  when  the  defendant's 
solicitor  came  to  him  and  stated  that  the  defendant  was  desirous 
of  abandoning  the  agreement,  upon  which  the  plaintiff's  solicitor 
said,  "  You  must  put  that  proposal  in  writing,"  and,  accordingly, 
he  sends  in  a  proposal  to  that  effect  in  writing,  which  was  declined 
on  the  2nd  day  of  February,  1857,  and  the  bill  was  filed  on  the 
26th  of  March  following. 

In  order  to  have  entitled  the  defendant  to  make  time  an  element 
in  this  matter,  he  ought  to  have  given  the  plaintiff  a  formal  notice 
that  he  repudiated  the  agreement,  that  he  had  abandoned  the 
mine,  and  would  have  nothing  more  to  do  with  the  transaction. 
If  this  had  been  done,  and  the  plaintiff  had  not  after  a  consider- 
able length  of  time  proceeded  with  due  diligence,  then  undoubtedly 
the  Court  would  not  have  allowed  him  to  have  enforced  the  con- 
tract ;  but  here  I  find  that  the  defendant  worked  regularly  until 
July,  1855.  He  went  on  trying  it  more  or  less  until  October, 
1856,  and  in  January,  1857,  he  makes  a  written  proposal  as  to 
the  abandonment  of  it,  and  the  bill  is  filed  in  March,  1857.  The 
real  fact  is,  that  the  speculation  has  turned  out  extremely  bad, 
and  this  is  shown  by  the  evidence.  The  seam  dwindled  down 
from  three  feet  to  twenty  inches,  but  if  instead  of  diminishing  it 
had  increased  to  that  extent,  the  Court  would  probably  have  heard 
nothing  about  it. 


E.  C.  VOL.  XVII.]      SECT.  VIL  —  SPECIAL  EULKS  AS  TO  BEMEDIES.        823 
Ho.  88.  — Haywood  t.  Copo,  95  BoaT.  160-lff8. 

Then  it  is  said,  that  this  is  an  extremely  hard  case,  that,  in 
point  of  fact,  the  plaintiff  is  insisting  upon  the  defendant  paying 
him  £1,400  for  a  thing  that  has  turned  out  to  be  literally 
worth  nothing,  and  that  *  according  to  the  discretion  which  [*  151] 
the  Court  exercises  in  such  cases,  it  cannot  compel  specific 
performance  of  the  contract.  Upon  this  subject,  which  is  one 
upon  which  I  have  before  made  several  observations,  I  will  refer 
again  to  a  passage  which  I  have  always  considered  binding  upon 
me,  for  it  is  most  important  that  the  profession,  and  those  who 
have  to  advise  in  reference  to  this  subject,  should  understand  the 
rule  which  is  adopted  in  this  and  the  other  Courts,  which  is,  that 
the  discretion  of  the  Court  must  be  exercised  according  to  fi^ed 
and  settled  rules;  you  cannot  exercise  a  discretion  by  merely 
considering  what,  as  between  the  parties,  would  be  fair  to  be 
done;  what  one  person  may  consider  fair,  another  person  may 
consider  very  unfair ;  you  must  have  some  settled  rule  and  prin- 
ciple upon  which  to  determine  how  that  discretion  is  to  be  exer- 
cised. Lord  Eldon  observes  in  the  case  of  WTiite  v.  Damon,  7  Ves. 
30,  35  (6  R  R  71), "  I  agree  with  Lord  Rosselyn,  that  giving 
specific  performance  is  matter  of  discretion ;  but  that  is  not  an 
arbitrary  capricious  discretion.  It  must  be  regulated  upon  grounds 
that  will  make  it  judicial."  I  also  refer,  as  I  believe  I  have  upon 
former  occasions,  to  a  passage  in  the  celebrated  argument  of  the 
Master  of  the  Rolls  in  Burgess  v.  WTieate,  1  Eden,  p.  214,  where, 
at  the  conclusion,  he  cites  a  well-known  passage  from  Sir  Joseph 
Jekyll's  judgment,  in  Cowper  v.  Sari  Cowper,  2  P.  Wm.  752, 753, 
upon  the  subject  of  the  discretion  of  the  Court,  and  gives  his  own 
opinion.  He  says,  "And  though  proceedings  in  equity  are  said 
to  be  Secundum  discretionem  honi  viri,  yet,  when  it  is  asked  mr 
bonus  est  guis,  the  answer  is,  qui  consulta  patrum,  qui  leges  Jura-- 
que  servat  And  as  it  is  said  in  Roohe's  Case,  5  Co.  Eep.  99  b, 
that  discretion  is  a  science,  not  to  act  arbitrarily  according 
to  men's  wills  and  private  affections,  *  so  the  discretion  [*  152] 
which  is  to  be  exercised  here  is  to  be  governed  by  the 
rules  of  law  and  equity,  which  are  not  to  oppose,  but  each,  in  its 
turn,  to  be  subservient  to  the  other.  This  discretion  in  some  cases 
follows  the  law  implicitly ;  in  others  assists  it  and  advances  the 
remedy ;  in  others,  again,  it  relieves  against  the  abuse  or  allays 
the  rigour  of  it ;  but  in  no  case  does  it  contradict  or  overturn  the 
grounds   and  principles  thereof,  as   have  been   sometimes  igno- 


824  MINES  AKD   MINERALS. 

Ho.  83.  —Haywood  t.  Ckvpo,  25  Boat.  158, 158. 

rantly  imputed  to  this  Court.  That  is  a  discretionary  power 
which  neither  this  nor  any  other  Court,  not  even  the  highest^ 
acting  in  a  judicial  capacity,  is  by  the  constitution  intrusted  with. 
This  description  is  full  and  judicious,  and  what  ought  to  be 
imprinted  upon  the  mind  of  every  Judge."     (1  Eden,  p.  214) 

If,  therefore,  in  a  case  of  this  description,  I  were  to  say,  that 
according  to  my  discretion  I  ought  to  leave  these  persons  to  their 
action  at  law,  upon  what  principle  or  ground  could  I  do  it,  except 
that  in  a  matter  of  speculation  it  has  turned  out  very  favourable 
to  one  party,  and  very  unfavourable  to  the  other.  It  is  obvious 
that  in  the  case  of  a  sale  by  auction,  if  the  property  is  sold  for 
an  extremely  inadequate  value,  it  is  impossible  for  the  person  to 
repudiate  the  contract  The  mere  principle  of  what  might  have 
been  fair,  or  what  might  have  been  a  right  thing  to  do  between 
the  parties,  had  all  the  elements  of  value  been  known  which  have 
since  transpired,  cannot  be  a  ground  for  exercising  or  regulating 
the  discretion  of  the  Court  when  all  the  facts  which  were  then 
in  existence  were  known  to  both  parties.  I  can  understand  that 
the  Court  will  exercise  a  discretion,  and  will  not  enforce  the 
specific  performance  of  a  contract,  where  to  decree  the  perform- 
ance of  the  contract  will  be  to  compel  a  person  who  has  entered 
inadvertently  into  it  to  commit  a  breach  of  duty,  such  as 
[*  153]  where  *  trustees  have  entered  into  a  contract,  the  perform- 
ance of  which  would  be  a  breach  of  trust  Those  are  cases 
where,  by  a  fixed  and  settled  rule,  the  Court  is  enabled  to  exercise 
its  discretion ;  but  the  mere  inadequacy  or  excess  of  value  is  not 
in  my  opinion  a  ground  for  exercising  any  such  discretion  as  that 
which  is  suggested  in  this  case.  That  this  is  a  very  hard  case 
there  is  no  doubt,  and  it  may  be  extremely  proper  for  the  plaintiff 
to  make  an  abatement  in  respect  of  it,  but  that  is  a  totally  different 
matter,  one  which  is  in  the  forum  of  his  own  conscience,  but  not 
one  which  I  can  notice  judicially.  In  my  opinion,  this  is  a  con- 
tract which  was  fairly  entered  into  between  the  parties ;  there  is 
nothing  to  invalidate  it,  and  the  usual  decree  must  therefore  be 
made  for  the  specific  performance  of  the  contract,  with  costs  to 
the  present  time.  A  reference  must  be  directed  to  Chambers  to 
settle  the  lease  in  case  the  parties  differ. 

A  question  was  then  raised  whether  the  defendant  had  waived 
his  right  of  objecting  to  the  title. 

The  Master  of  the  Rolls  :  the  draft  lease  was  sent  in  May, 


K.  a  VOL.  xvn.]    sect.  vii.  —  special  rules  as  to  remedies.     825 

Ho.  9SL  —  Haywood  t.  Ckvpo,  85  Boat.  IftS,  164.  —  Votes. 

1855»  and  the  mine  turned  out  unprofitable  in  the  July  following. 
If  the  defendant  in  May,  1855,  had  required  to  see  the  plaintiff's 
title,  I  should  have  allowed  him,  and  I  should  not  have  thought 
that  the  possession  of  the  mine  was  an  acceptance  of  the  title.  It 
is  so  necessary  that  immediate  possession  should  be  given  of 
mining  property  under  a  term  which  is  running  out.  I  think  I 
cannot  hold  that  the  defendant  has  accepted  the  title ;  and  if  he 
asks  for  a  reference  on  that  point  he  must  have  it.  It 
is  not  necessary  to  inquire  *  when  it  was  first  shown,  [*  154] 
because  that  would  not  affect  my  making  the  defendant 
pay  the  costs  down  to  the  present  time ;  for  in  my  opinion,  there 
was  no  reason  for  resisting  the  contract  There  will  be  a  reference 
to  Chambers  to  settle  the  terms  of  the  lease  in  case  the  parties 
differ,  and  whether  the  plaintiff  can  make  a  good  title. 


ENGLISH  NOTE& 

The  case  of  Jennings  v.  Broughton  (1864),  5  De  G.  M.  &  G.  126^ 
referred  to  in  the  argument,  was  decided  on  an  analogous  principle. 
That  was  an  action  for  rescission  of  a  contract  on  the  ground  of  mis- 
representation,  and  the  point  taken  in  the  judgment  was  that  the  rep- 
resentation complained  of  was  a  statement  of  a  merely  speculative 
character,  understood  by  the  plaintiff  (who  had  examined  the  mine)  to  be 
of  that  character;  so  that  the  plaintiff  could  not  have  been  deceived  by 
it.  On  the  other  side  of  the  line  is  the  case  of  Higgins  v.  Samels  (1862), 
2  J.  &  H.  460,  where  specific  performance  of  an  agreement  for  a  lease 
of  a  limestone  quarry  was  successfully  resisted  on  the  ground  of  mis- 
representation by  the  plaintiff,  who  had  made  a  positive,  and  in  fact 
erroneous,  statement  as  to  the  quality  of  the  lime,  of  which  he  was 
ignorant. 

It  is  a  different  question  whether  the  Court  can  order  specific  per* 
formance  of  a  contract  to  work  a  mine.  The  argument  that  the  Court 
cannot  undertake  the  superintendence  of  the  work  would  probably  be 
unanswerable.  See  Pollard  v.  Claijton  (1855),  1  Kay  &  J.  462.  The 
judgment  of  Lord  Hardwicke,  in  the  case  of  Buxton  v.  Lister  (3  Atk. 
383)  there  cited,  shows  the  distinction  betiveen  the  performance  of  a 
contract  by  executing  a  more  formal  instrument,  and  the  performance 
(which,  as  a  rule,  the  Court  will  not  order)  by  doing  the  work  under- 
taken to  be  done.     See  also  No.  33,  p.  827,  post. 

The  case  of  Gowan  v.  Christie  (1873),  L.  R.  2  H.  L.  Sc.  273,  was  a 
Scotch  Appeal,  in  an  action  for  reduction  of  (setting  aside)  a  lease  of 
minerals  under  certain  lands  on  the  ground,  as  averred  in  the  conde- 


826  MINES  AND   MINERALS. 


Ko.  82.  —  Haywood  t.  Ckvpe.  —  Votes. 


scendance,  that  there  was  ''no  freestone,  or  other  minerals,  or  material 
in  the  land,  capable  of  being  worked  to  profit."  The  lease  in  question 
had  been  granted  in  1866  ''of  the  freestone  and  minerals,  and  all  mate- 
rials and  substances  of  what  nature  soever  lying  in  and  under  '*  certain 
lands,  "with  power  to  search  for,  work,  win,  and  carry  away  the  said 
materials  and  substances  "  at  a  rent  of  £200  per  annum ;  the  lease  being 
for  twenty-one  years  ;  but  w^ith  a  stipulation  that  no  rent  should  be 
exacted  for  the  first  year,  and  with  power  to  the  lessee  at  the  end  of  the 
third,  seventh,  and  fourteenth  years,  to  determine  the  lease.  The  Court 
in  Scotland  had  held  that  the  averment  that  there  were  no  minerals  in 
the  land  capable  of  being  worked  for  profit  was  wholly  insufficient  to 
support  the  prayer  for  reduction  contained  in  the  summons,  and  dis- 
missed the  action  accordingly.  The  appellants  in  the  House  of  Lords 
argued  to  the  effect  that,  by  the  Scotch  law  (following  the  civil  law) 
there  is  in  a  lease  an  implied  warranty  of  possession  of  a  subject  capable 
of  producing  profit.  All  the  Lords  present  repudiated  the  suggestion 
that  there  was  any  such  warranty.  The  Lord  Chancellor  (Lord  Sel- 
borne)  pointed  out  that  the  text  of  the  civil  law  (Dig.  19,  2,  15, 1.) 
and  the  authorities  of  Scotch  law  referred  to,  pointed  to  the  case  of 
entire  failure  or  exhaustion  of  the  subject  matter,  but  could  not  apply 
to  a  lease  of  "all  the  minerals,"  nor  could  any  inference  from  the 
authorities  be  stretched  so  as  to  apply  to  the  case  where  the  minerals 
demised  were  unworkable  so  as  to  produce  profit;  especially  where  the 
lessee  had  guarded  himself  against  such  a  contingency  by  relieving 
himself  from  rent  for  the  first  year  and  stipulating  for  breaks  at  the 
«nd  of  three  and  seven  years.  All  the  other  Lords  present.  Lords 
Chelmsford,  Colonsay,  and  Cairns,  concurred,  substantially  upon 
the  same  grounds.  The  judgment  of  the  Scotch  Court  was  accordingly 
affirmed. 

Tn  Jefferys  v.  Fairs  (1876),  4  Ch.  D.  448,  46  L.  J.  Ch.  113,  36  L.  T. 
10,  25  W.  B.  227,  there  was  an  agreement  for  a  lease,  in  consideration 
of  a  dead  rent,  of  a  vein  or  seam  of  coal  called  the  S  vein,  "about  two 
feet  thick,  with  the  overly- ing  and  underlying  beds  of  clay  on  and  under 
the  farm  called  X."  This  was  construed  by  Vice-Chancellor  Bacon 
as  an  agreement  in  consideration  of  the  dead  rent  for  a  right  to  enter 
and  search  for  the  coal,  but  not  a  warranty  that  the  vein  was  to  be 
found  under  the  farm ;  and  he  decreed  specific  performance  accordingly. 

AMERICAN  NOTEa 

This  case  is  frequently  cited  in  Pomeroy  on  Specific  Performance  (see 
p.  852),  and  in  the  same  author's  Equity  Jurisprudence. 


B.  C.  VOL.  XVII.]      SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES.       827 
He.  S8.  —  WbMttley  ▼.  Wettmiastar  Brymbo  Oosl  Oo.,  L.  B.  9  Sq.  688.  —  Sola. 

No.  33.  — WHEATLEY  v.  WESTMINSTER  BRYMBO  COAL 

COMPANY 

(1869.) 

RULE. 

A  Court  of  Equity  will  not  enforce  specific  performance 
of  a  covenant  to  work  a  mine,  or  to  work  it  in  a  particular 
way. 

The  proper  way  to  secure  efficient  working  is  to  exact  a 
sufficient  dead  rent. 

Wheatley  v.  Weitminster  Brymbo  Coal  Company. 

L.  R.  9  £q.  538-554  (s.  c.  39  L.  J.  Ch.  175 ;  22  L.  T.  7). 

[588]   (Joal  Mines.  —  Minimum  Bent  —  Covenant  to  work  uninterruptedly ^ 
efficiently f  and  regularly,  —  Claim  for  Specific  Performance  dismissed. 

The  plaintiffs  granted  a  lease  of  a  coal  mine  to  the  defendants,  reserving  a 
miDimum  rent  of  j^720,  to  be  increased  to  ^£1000  in  case  there  should  be  pits 
sunk  upon  the  estate,  with  a  royalty  upon  all  coal  gotten  beyond  a  certain  quan- 
tity ;  and  the  lessees  covenanted  to  work  the  mine  uninterruptedly,  efficiently, 
and  regularly,  according  to  the  usual  or  most  improved  practice.  The  lessees 
paid  the  minimum  rent,  but  only  raised  a  smaU  quantity  of  coal  by  working 
through  an  adjoining  mine  without  sinking  pits  on  the  plaintiff's  property.  The 
plaintiffs  being  desirous  of  enforcing  a  larger  amount  of  working,  whereby  an 
increased  rent  would  be  payable,  filed  a  bill  for  specific  performance  of  the 
covenant  in  the  lease. 

Held,  that  there  was  no  obligation  upon  the  defendants  to  sink  pits,  although 
that  might  be  the  most  efficient  mode  of  working ;  and  that,  so  long  as  tlie 
minimum  rent  was  paid,  the  defendants  could  not  be  compelled  to  work  the  mines 
at  all;  that  the  lessees  had  committed  no  breach  of  contract;  but  if  they  had 
done  so,  the  remedy  was  at  law  and  not  in  equity ;  and  that  this  Court  could 
not,  by  a  reference  to  Chambers,  give  effect  to  the  covenant  by  directions  as  to 
the  management  of  a  coal  mine. 

Bill  dismissed  with  costs. 

This  bill  was  filed  by  Thomas  Randall  Wheatley  and  Moreton 
John  Wheatley  against  the  Westminster  Brymbo  Coal  and  Coke 
Company,  Limited,  for  a  declaration  that  the  defendant  company 
was  bound  to  work  the  Gwersylt  coal  and  ironstone  mine,  of 
which  the  plaintiffs  were  the  owners,  uninterruptedly,  efficiently, 
regularly,  and  according  to  the  usual  and  most  approved  practice 


828  MINES  AND  MINERALS. 


He.  SS.— WbMttley  t.  Wastmiafter  Brymbo  Coal  Co.,  L.  B.  9  Sq.  6S8,  588. 

adopted  in  working  mines  of  coal  and  ironstone,  according  to  the 
provision  of  the  lease  under  which  the  company  held  the  mines, 
and  also  that  the  company  was  bound  to  work  the  "  Two-yard/* 
''Brassey/'  and  "Main"  seams  in  such  a  manner  as  not  to  get  one 
and  leave  the  others  ungotten. 

On  the  12th  of  February,  1859,  the  plaintiffs,  being  seised  in  fee 
of  the  Gwersylt  estate  in  Denbighshire,  entered  into  an  agreement 
with  the  company  to  grant  them  the  lease  in  question.  By  this 
contract  the  lessees  were  to  have  two  years  for  proving 
[*  539]  the  coal,  *  paying  for  all  that  should  be  gotten  during  that 
time;  and  at  the  expiration  of  the  two  years  the  lease 
dated  the  7th  day  of  July,  1862,  was  made  between  the  plaintiffs 
of  the  one  part,  and  the  defendants  of  the  other  part,  by  which  the 
plaintiffs  granted,  demised,  and  leased  unto  the  defendants,  their 
successors  and  assigns,  the  mines,  seams,  veins  and  beds  of  coal, 
and  balls  and  bands  of  ironstone  under  the  Gwersylt  estate, 
containing  465  acres,  with  full  power  and  license  to  the  lessees 
to  enter  upon  the  estate,  and  to  erect  or  remove  buildings  and 
machinery  necessary  for  setting  the  coal  and  ironworks  afoot,  and 
to  bore  and  search  for  coal,  and  to  drive,  sink,  and  use  any  pit, 
shaft,  or  tunnels,  or,  if  necessary,  subterraneous  work,  and  to  do  all 
other  acts,  matters,  and  things  within,  through,  over,  or  on  the 
estate  for  working  the  mines,  and  manufacturing  ironstone,  pig,  or 
wrought  iron,  and  selling  and  disposing  of  the  same ;  and  also  gen- 
erally into  and  out  of  the  said  Gwersylt  estate,  to  work  and  drive 
by  outstroke,  instroke,  and  substroke,  getting  and  carrying  away 
the  produce  of  the  Gwersylt  mines,  as  well  as  any  other  mines, 
and  to  connect  the  works  with  the  Brymbo  mineral  branch  of  the 
Great  Western  Railway.  The  lease  was  for  twenty-one  years  from 
the  29th  of  September,  1866,  renewable  for  a  further  term  of 
twenty -one  years,  and  determinable  as  after  mentioned,  the  lessees 
paying  as  follows :  For  the  first  year,  the  fixed  minimum  rent  of 
£500 ;  for  the  second  year,  £600 ;  for  the  third  year,  £700 ;  and  for 
the  fourth,  and  every  following  year,  £720,  and  so  in  proportion  for 
less  than  a  year.  But  in  case  at  any  time  during  the  term  the 
lessees  or  their  successors  should  sink  a  pit  or  shaft,  then  from  and 
after  the  expiration  of  two  years  they  should  pay  a  minimum  fixed 
rent  of  £1000,  all  the  minimum  rents  so  fixed  to  be  paid  half-yearly. 
There  were  also  provisions  for  payment  of  a  royalty  of  £30  per  acre 
for  workable  and  saleable  coal  of  one  foot  thick  of  the  several 


B.  a  VOL.  XVII.]      SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES,       829 
Ho.  88.  —  WheaUey  t.  Wertminrter  Brymbo  Goal  Oo.,  L.  B.  9  Bq.  689-M4. 

seams  called  "  Two-yard,"  "  Brassy,"  and  "  Main  "  coal,  and  £20  per 
acre  for  coal  of  inferior  quality ;  and  £20  per  acre  for  all  other  seams ; 
with  the  usual  clause,  that  if  in  any  one  year  they  should  not  work 
up  to  the  fixed  rents,  the  deficiency  might  be  made  up  in  subsequent 
years;  and  there  were  provisions  for  royalties  on  the  ironstone. 
The  lease  also  contained  a  covenant  on  the  part  of  the  les- 
sees that  they  would  at  all  times  during  the  *  continuance  [*  640] 
of  the  terms  thereby  granted  worl^and  carry  on  the  said 
mines  of  coal  and  ironstone  thereby  demised,  uninterruptedly, 
efficiently,  and  regularly  (except  in  the  event  of  strikes  of  work- 
men or  other  casualties),  according  to  the  usual  or  most  approved 
practice  adopted  and  used  in  the  working  of  mines  of  coal  and 
ironstone;  and  should  and  would  get  and  raise  the  said  seams 
and  beds  of  coal  thereby  demised  clearly  out  in  regular  course,  and 
should  work  the  upper  of  the  said  seams  or  beds,  respectively 
called  the  "  Brassey,"  the  "  Two-yard,"  and  the  "  Main  "  coal,  each 
seam  in  advance  of  the  seam  next  before  it  respectively,  so  as  not 
to  endanger  the  other  seams  by  undermining.  Power  was  reserved 
to  the  lessees  to  give  up  possession  at  the  end  of  five  years,  or  at 
any  time  afterwards,  on  twelve  calendar  months'  notice,  with  a 
clause  giving  power  to  refer  all  differences  to  arbitration.  The  bill 
alleged  that  the  three  seams  of  coal  contained  altogether  about 
9,000,000  tons ;  that  the  defendant  company  were  lessees  of  the 
Brymbo  mines,  adjoining  the  mines  now  leased  and  held  under  the 
Marquis  of  Westminster,  and  they  had  sunk  pits  on  the  adjoining 
estate,  and  by  means  of  an  inclined  plane  or  downbrow  driven  into 
the  "  Brassey "  seam  they  had  worked  that  seam  without  the 
others,  but  only  to  a  small  extent. 

The  case  came  on  in  January,  1865,  upon  motions  for  an  injunc- 
tion and  to  stay  proceedings  in  the  suit,  before  Vice-Chancellor 
KiNDERSLEY  (2  Dr.  &  Sm.  347),  who  refused  both  motions. 

The  cause  coming  on  for  hearing  before  Vice-Chancellor  Sir 
EiCHARD  Malins,  His  Honor,  after  hearing  argument,  gave  judg- 
ment as  follows:  — 

This  case  has  been  very  elaborately  and  carefully  argued,  [544] 
and  it  will  not,  therefore,  be  for  want  of  the  most  complete 
assistance  on  the  part  of  counsel  that  I  shall  err,  if  I  do  err,  in  the 
judgment  I  am  about  to  give. 

The  case  raises  points  of  great  importance,  not  only  to  the 


830  MINES  AND  MINEBALS. 


Ko.  88.  -- WbMttley  T.  WettmiiiBtar  Brymbo  Coal  Co.,  L.  B.  9  Xq.  544-MOl 

parties  concerned,  but  also  to  that  large  portion  of  the  community 
engaged  in  mining  operations.  The  rights  of  the  parties  must 
depend,  however,  on  the  legal  contract  existing  between  them, 
which  is  constituted  by  the  lease  of  the  1st  of  July,  1862,  and 
which  is  fully  set  out  in  the  bill. 

[His  Honor,  having  adverted  at  some  length  to  the  evidence  as  to 
the  circumstances  relating  to  the  position  of  the  parties  at  the  time 
of  the  execution  of  the  lease,  and  the  mode  of  working  which  had 

been  adopted,  continued.] 
[549]  It  was  urged  by  the  plaintiffs'  counsel  that  the  covenant 
to  work  efficiently  and  regularly  necessarily  implied  that  pits 
should  be  sunk,  and  that  the  only  mode  of  efficiently  and  regularly 
working  the  mines  was  by  sinking  a  pit.  I  have  already  said  that 
in  that  view  of  the  case  I  entirely  concur ;  but  that  does  not  settle 
the  question  before  me,  which  is,  What  are  the  rights  of  the  parties 
under  this  lease  of  the  1st  of  July,  1862  ?  And  although  the  plaintiffs 
and  their  agents  now  know  much  more  about  this  mineral  property 
than  they  did  then,  it  does  not  follow,  because  subsequent  experi- 
ence shows  that  it  would  be  more  desirable  that  pits  should  be 
sunk  and  that  the  collieries  should  be  worked  upon  a  larger  scale, 
that  the  plaintiffs  have  the  right  to  require  them  to  be  so  worked 

That  brings  me  to  the  question,  What  is  the  meaning  of  this 
contract  ?  I  have  already  shown  that  this  lease  does  not  throw 
upon  the  defendants,  the  lessees,  the  obligation  of  sinking  pits,  but 
it  does  throw  upon  them  the  obligation  to  work  and  carry  on  the 
mines  uninterruptedly,  efficiently,  and  regularly.  It  has  been  con- 
tended that  they  do  not  work  "  uninterruptedly,  efficiently,  and 
regularly,"  and  that  that  is  proved  by  the  small  quantity  of  coal 
which  is  raised.  No  doubt,  if  the  sleeping  rent  had  been  fixed  at  a 
sufficient  amount  —  for  instance,  instead  of  being  £720  it  had  been 
fixed  at  £3000  —  the  interest  of  the  lessors  would  have 
[*  550]  been  *  that  no  working  should  take  place,  because  if  they 
got  payment  without  the  working  taking  place  they  would 
have  had  their  royalty  and  preserved  their  coal  at  the  same  time. 
It  therefore  resolves  itself  into  this  question,  What  is  the  amount 
of  working  which  this  lease  throws  an  obligation  on  the  lessees  to 
perform  ?  It  has  been  argued  that  they  do  not  work  continuously 
and  that  they  do  not  work  efficiently,  because  they  do  not  work  a 
sufficient  quantity.  Upon  that  subject  I  take  this  view,  though  I 
do  not  intend  to  conclude  the  parties  by  anything  that  I  say.    The 


B.  C.  VOL.  XVn.]      SECT.  VII.  —  SPECIilL  RULES  AS  TO  REMEDIES.       831 
Ho.  88.  —  Wheaitoy  t.  Waftminsfcer  Brymbo  Goal  Co.,  L.  E.  9  Sq.  660,  661. 

only  question  before  me  is,  whether  a  case  is  made  out  for  the 
interference  of  this  Court:  because,  if  the  parties  are  of  opinion 
that  there  is  an  insufficient  or  an  ineffectual  working,  I  apprehend 
that  the  remedy  is  not  in  this  Court  but  in  a  Court  of  Law.  But 
as,  I  must,  for  the  purpose  of  determining  the  questions  raised 
before  me,  put  my  interpretation  upon  this  covenant,  I  have 
invited  the  learned  counsel  for  the  plaintiflFs  to  tell  me  of  any 
instance  in  which  this  Court  has  ever  decided  that  the  lessee  of  a 
mine  is  bound  to  work  beyond  the  amount  of  his  sleeping  rent.  No 
such  case  has  been  cited,  and  Oreen  v.  Sparrow^  3  Sw.  408,  n. 
(19  R  R.  248),  does  not  go  to  the  point  in  the  slightest  degree- 
That  was  a  case  of  this  nature:  the  agreement  was,  that  a  rent 
should  be  paid  in  respect  of  the  colliery  from  the  first  quarter-day 
after  1000  sacks  of  coal  should  have  been  dug.  There  was  no  rent 
to  be  paid  until  a  certain  thing  was  done ;  and  the  point  of  the 
case  was,  that  the  lessee,  who  had  nearly  raised  1000  sacks  of  coal 
before  a  particular  quarter-day,  refrained  from  completing  the 
quantity  expressly  for  the  fraudulent  purpose  of  depriving  the 
lessor  of  this  rent.  The  Lord  Chancellor  there  decided  that  the 
refraining  to  complete  the  1000  sacks  of  coal  was  a  fraudulent  act 
on  the  part  of  the  lessees,  and  he  therefore  ordered  that  the  rent 
should  commence  as  if  the  1000  sacks  of  coal  had  been  dug  and  raised 
before  the  particular  quarter-day.  But  that  case  does  not  in  the 
slightest  degree  tend  to  show  that  when  the  sleeping  rent  of  £1000 
or  £720  had  been  paid  there  is  any  obligation  on  the  part  of  the 
lessee  to  go  beyond  that  amount.  The  difficulty  upon  this  part  of 
the  case  arises  thus:  I  have  asked  the  learned  counsel  for  the 
plaintiffs  if  ninety  tons  a  day,  which  is  the  quantity  I  have 
taken  as  being  the  amount  which  will  cover  *  the  sleeping  [•  551] 
rent,  is  not  a  compliance  with  the  covenant  to  work  unin- 
terruptedly, efficiently,  and  regularly,  what  is  enough  ?  If  the  case 
had  been  a  covenant  that  they  would  work  a  mine  to  the  extent  of, 
say,  200  tons  a  day,  that  would  be  a  covenant  to  pay  200  sixpences, 
or  £5,  a  day,  and  that  would  be  a  sum,  in  effect,  covering  the  sleep- 
ing rent.  If,  therefore,  the  object  was  to  secure  a  large  revenue 
from  this  mine  by  this  working,  it  is  most  unfortunate  that  the 
plaintiffs  should  not  have  been  differently  advised,  and  that  they 
should  not  have  had  a  lease  in  a  different  form.  However,  I  can 
only  determine  the  rights  of  the  parties  as  they  arise  out  of  the 
contract  they  have  entered  into,  and  there  is  no  contract  or  provi- 


832  MINES  AND  MINERALS. 

Ko.  88.  —  Wheatlay  t.  Wettmiiuter  Brymbo  Goal  Co.,  L.  B.  9  Sq.  551,  558. 

sion  on  which  I  can  interfere ;  there  is  nothing  to  enable  me  to  say 
how  much  coal  shall  be  worked,  whether  it  should  be  100  tons, 
300  tons,  or  as  Mr.  Cadwaladr  says,  500  tons  a  day,  or  150,000  tons 
a  year.  Suppose  I  were  to  accede  to  the  proposition  of  Mr.  Glasse, 
and  refer  it  to  Chambers  to  inquire  what  would  be  an  uninterrupted, 
efficient,  and  regular  working  of  the  colliery,  the  consequence  would 
be  that  I  should  have  as  many  opinions  upon  the  subject  as 
mining  agents  could  be  found  to  give  evidence.  Every  man  would 
differ  as  to  the  proper  quantity.  It  is  impossible,  therefore,  that  the 
Court  could  have  the  means  of  carrying  such  a  contract  into  execu- 
tion. I  am  unable  to  see  that  there  has  been  any  breach  of  the 
contract ;  but  if  the  plaintiffs  think  there  has  been  a  breach,  I  am 
clearly  of  opinion  that  this  is  not  the  tribunal  to  determine  that 
question.  What  would  be  the  result  if  I  acceded  to  the  prayer  of 
the  bill,  and  I  were  to  direct  a  reference  to  Chambers  to  inquire 
what  ought  to  be  done,  and  how  it  ought  to  be  done  ?  Should  I 
not  be  directing  the  management  of  this  colliery  ?  Would  not  the 
affairs  of  this  colliery  be  conducted  under  the  direction  of  this 
Court?  And  would  not  this  Court,  undertaking  to  work  the 
colliery,  have  to  give  every  direction  as  to  how  all  things  were  to 
be  done  in  connection  with  it  —  how  the  wages  were  to  be  paid, 
and,  in  short,  what  should  be  done  in  every  respect 

Mr.  Glasse,  in  his  argument  for  the  plaintiffs,  cited  many  authori- 
ties, in  the  principle  of  every  one  of  which  I  entirely  agree,  as  to 
the  doctrine  of  this  Court  where  it  will  or  will  not  interfere  by 
way  of  injunction.  In  this  particular  case,  for  instance, 
[*  552]  there  is  a  contract  that  the  defendants  will  *  not  sink  a 
pit  except  in  particular  parts  of  the  estate.  If  they  had 
proceeded,  in  contravention  of  that  contract,  to  sink  a  pit  in  an- 
other portion  of  the  estate,  it  is  perfectly  clear  that  this  Court  would 
have  restrained  them  by  injunction  from  so  doing,  If  the  lessor 
had  covenanted  that  he  would  not  do  a  certain  thing  and  had  pro- 
ceeded to  do  it,  this  Court  would  prevent  him  doing  it.  If  it  is  a 
thing  to  be  done  imder  the  direction  of  the  Court,  and  he  refuses  to 
do  that  certain  thing,  the  Court  would  oblige  him  to  do  it ;  but  I 
take  it  that  nothing  is  more  clear  than  this :  that  this  Court  will 
not  undertake  either  the  construction  of  a  railway,  the  manage- 
ment of  a  brewery,  or  the  management  of  a  colliery,  or  anything  of 
the  kind.  It  will  appoint  a  receiver  or  manager  in  certain  casas ; 
but  for  this  Court  to  undertake  the  working  of  a  colliery,  for  this 


».  C.  VOL.  XVn.]       SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES.       833 
Ho.  S8.  —  Wheatl^y  t.  WMtmixuter  Brymlw  Ooal  Co.,  L.  E.  9  Sq.  562,  5ft8. 

Court  to  superintend  workings  of  this  description,  is  entirely  out  of 
the  question,  and  it  would,  in  my  opinion,  be  a  violation  of  all  the 
principles  of  the  Court  if  I  were  to  make  a  declaration  in  this  case 
that  they  have  not  uninterruptedly,  efficiently,  and  regularly  worked 
this  colliery,  or  if  I  were  to  refer  it  to  Chambers,  as  I  am  asked  to 
do,  to  report  what  is  an  uninterrupted,  efficient,  and  regular  working 
of  the  colliery.  As  to  the  difficulty  of  this  Court  interfering  in  the 
working  of  this  colliery,  or  matters  of  that  description,  what  is  stated 
by  Lord  Hardwicke  in  the  anonymous  case  in  Ambler,  page  209, 
and  cited  by  Lord  Eldon  in  the  Birmingham  Canal  Company  v. 
Lloyd,  18  Ves.  515  (11  R  R.  245),  is  applicable.  It  was  the  rule 
of  the  Court  then,  and  it  is  the  rule  of  the  Court  now.  That  was 
on  motion  for  an  injunction  to  stay  lessees  from  working  a  coal  pit 
irregularly  and  detrimentally  to  the  plaintiffs,  the  lessors.  Lord 
Hardwicke  said :  "  The  Court  grants  injunctions  to  stay  working 
of  a  colliery  with  great  reluctance,  from  the  great  inconvenience  it 
occasions,  and  never  will  do  it  but  where  there  is  a  breach  of  an 
express  covenant  or  an  uncontroverted  mischief.  The  present  case 
did  not  come  within  either  of  those  reasons,  and  therefore  the 
injunction  is  refused." 

ITow  it  is  a  fact  that  the  defendants  are  not  working  up  to  the 
sleeping  rent,  and  it  is  perfectly  clear  that  it  is  not  the  interest  of 
the  plaintiffs  to  oblige  them  to  work  up  to  the  sleeping  rent,  if 
they  cannot  oblige  them  to  work  beyond  it;  because  the 
less  coal  *they  work  the  more  there  will  be  left  in  the  [•553] 
mine,  and  provided  the  plaintiffs  are  paid  their  sleeping 
rent  that  is  all  they  can  possibly  require.  But  the  question  has 
been  distinctly  raised  before  me,  whether  in  this  case,  which 
obliges  the  lessees  to  pay  a  sleeping  rent,  and  to  work  the  colliery 
"  efficiently  "  —  because  that  is  the  meaning  of  it  —  is  there  any 
obligation  on  the  part  of  the  lessees  to  work  at  all,  or  if  they  do 
work  at  all,  to  work  beyond  the  amount  of  the  sleeping  rent  ?  As 
no  authorities  have  been  cited  I  suppose  that  none  exist.  Cer- 
tainly, I  have  heard  of  none  myself ;  and  as  the  point  is  brought 
before  me,  I  think  I  am  bound  to  state  my  opinion  that  in  all 
cases  of  mining  leases,  if  the  lessors  desire  to  secure  the  working 
of  their  mines  beyond  the  amount  of  the  sleeping  rent,  they  must 
in  the  lease  insert  covenants  which  throw  that  obligation  on  the 
lessee. 

My  own  opinion  is,  that,  provided  the  sleeping  rent  is  paid,  and 
VOL.  xvn.  —  53 


834  MINES  AND  MINERALS. 


Ko.  88.— Wheatlay  t.  Westminirter  Brymbo  Coal  Co.,  L.  B.  9  Sq.  658,  564. 

there  is  nothing  more  than  a  covenant  to  work  efficiently,  that 
covenant  means  that  if  they  do  work  they  shall  work  efficiently 
and  regularly;  in  other  words,  they  shall  work  in  a  miner-like 
manner;  but  that  it  is  in  the  power  of  the  lessee  to  keep  the 
mines  unworked  as  long  as  it  suits  his  convenience,  and  that  there 
is  no  obligation  on  him  to  work  if  he  does  not  choose,  so  long  as  he 
pays  his  sleeping  rent  Therefore  I  come  to  the  conclusion,  in  the 
absence  of  express  stipulation  in  this  case  that  they  shall  work, 
that  there  is  no  obligation  on  them  to  do  anything  more  than  to 
pay  the  sleeping  rent. 

I  come,  therefore,  to  the  conclusion,  first,  that  there  is  no  obliga- 
tion on  the  part  of  the  company  to  sink  any  pits ;  that  the  plain- 
tiffs have  entirely  failed  to  show  any  breach  of  the  contract  on  the 
part  of  the  defendants  ;  and  I  come  farther  to  the  conclusion  that, 
even  if  they  had  shown  a  breach  in  the  clause  of  the  contract  to 
work  the  colliery  efficiently,  their  remedy  would  have  been  at  law, 
and  not  in  this  Court 

With  regard  to  the  minor  point,  as  to  working  the  different 
seams  of  coal  at  the  same  time,  that  was  the  subject  of  a  motion 
made  in  1865,  before  Sir  Eichard  Einderslet,  immediately  after 
the  filing  of  the  bill.  The  substance  was,  that  they  were  working 
improperly,  and  not  according  to  the  stipulation  contained  in  the 
lease.  Sir  Bichard  Kindersley,  after  full  argument,  dis- 
[*554]  missed  that  *  motion  and  made  the  defendants'  costs 
costs  in  the  cause,  but  he  refused  the  plaintiffs  their 
costs. 

Therefore  there  is  the  adjudication  of  Sir  R  Kindersley  upon 
the  point  that  there  is  no  improper  working ;  and  I  make  the  same 
observation  as  regards  that,  that  if  they  are  working  the  mines 
contrary  to  the  stipulations  in  the  covenant,  unless  indeed  they  are 
doing  something  so  unwarranted  that  the  Court  can  interfere  by 
injunction,  the  remedy  is  not  in  this  Court  but  in  a  Court  of  Law. 

My  opinion  is,  that  the  remedy  of  the  plaintiffs  by  this  bill  is 
misconceived,  the  bill  fails  in  its  object,  the  sole  object  being  to 
compel  a  more  extended  working  by  the  defendants ;  and  upon  all 
these  grounds,  being  of  opinion  that  the  bill  fails,  it  necessarily 
follows  that  it  must  be  dismissed.  .  . 


R.  C.  VOL.  XVn.]      SECT.  VII.  —  SPECIAL  KULES  AS  TO  REMEDIES.       835 
Ho.  M.  —  Jeffezyi  ▼.  Smith,  IJ.  &  W.  298.  —  B11I0. 


ENGLISH  NOTES. 

It  is  to  be  observed  that  the  above  case  has  been  selected,  not  for  the 
learned  Yigb-Chanoellor's  opinion  upon  the  construction  of  the  con- 
tract, which  has  been  questioned  by  the  Master  of  the  Bolls  (Sir  G. 
Jessel)  in  Kinsman  v.  Jackson  (1880),  42  L.  T.  80,  28  W.  R.  337 
(affirmed  C.  A.  42  L.  T.  558,  28  W.  R.  001),  but  for  his  exposition  of 
the  proposition  that  it  is  contrary  to  the  practice  of  a  Court  of  equity,  — 
and  the  reasons  apply  equally  to  the  Courts  as  constituted  by  the  Judi- 
cature Acts,  —  to  undertake  and  superintend  the  working  of  a  colliery. 
The  covenant  to  work  beyond  the  dead  rent,  if  the  contract  is  to  be  so 
construed,  may  be  enforced  by  a  claim  of  damages,  or  if  the  instrument 
so  prescribes,  as  in  the  case  of  KinsTnan  v.  Jackson  (supra)^  by  for- 
feiture ;  but  not  by  a  judgment  in  the  nature  of  a  decree  for  specific 
performance. 

AMERICAN  NOTES. 

This  doctrine  is  found  in  Koch's  Appeal,  93  Penn.  State,  434,  where  specific 
performance  was  denied  on  the  ground  that  an  adequate  remedy  existed  at  law 
in  an  action  for  damages.  The  decree  was  denied  also  in  Marble  Co.  v.  Ripley, 
10  Wallace  (U.  S.  Sup.  Ct.),  358,  the  case  of  a  contract  to  work  a  quarry  and 
deliver  marble  of  a  certain  kind  and  size. 


No.  34.  — JEFFEEYS  v.  SMITH. 
(1820.) 

RULE. 

Where  a  mine  belonging  to  tenants  in  common  is  being 
worked  for  the  common  benefit,  there  is  a  trade  or  business 
carried  on  quasi  in  partnership  ;  and  the  Court  will,  where 
the  circumstances  make  it  convenient,  appoint  a  receiver 
and  manager. 

Jetterjn  ▼.  Smith. 

1  Jacob  &  Walker,  298-303  (21  R.  R.  175). 

Mines.  —  Tencmts  in  Common. — Beceiver  and  Manager. 

Receiver  appointed  of  mines,  in  which  several  persons  were  interested,  [298] 
the  concern,  from  the  nature  of  the  subject ;  being  a  species  of  trade,  and 
not  a  mere  tenancy  in  common  in  land. 


836  MINES  AND  MINERALS. 


Ho.  M.~Jeffez7i  ▼.  Smith,  IJ.  &  W.  298,  809. 


In  moving  for  an  injunction  after  answer,  affidavits  filed  after  the  answer 
may  be  read  in  support  of  allegations  in  the  bill,  which  are  not  noticed  by  the 
answer. 

In  the  year  1800,  John  Sead,  being  entitled  to  a  lease  for 
forty  years  of  a  coal  mine  called  the  Mees  mine,  at  Coseley  in 
the  county  of  Stafford,  entered  into  an  agreement  with  T.  Smith, 
who  was  the  owner  of  the  contiguous  lands,  and  of  the  mines 
and  minerals  under  them,  to  form  a  partnership,  for  the  pur- 
pose of  working  these  mines  together :  they  were  to  be  equally 
interested,  and  the  Mees  mine,  and  an  equal  quantity  of  the  mines 
under  Smith's  land,  were  to  be  applied  to  the  purposes  of  the  part- 
nership. The  business  was  carried  on  under  the  name  of  the 
Coseley  New  Colliery,  but  no  articles  of  partnership  were  ever 
executed.  In  1803,  Bead  sold  his  lease  of  the  Mees  mine  to  the 
firm  of  Pemberton,  Stokes,  and  Co.,  who  continued  the  partnership 
with  Smith  as  before.  The  partnership  was  subsequently  kept  up 
on  the  same  footing,  various  alterations  taking  place  in  the  parties 
constituting  it,  by  sales  and  assignments  of  shares.  At  the  com- 
mencement of  the  suit,  and  for  some  time  previously,  the  plaintiff 
Jeflferys  was  entitled  to  a  fourth  share  in  the  partnership,  which 
he  derived  by  several  mesne  assignments  from  Bead ;  the  defendant 
David  Smith  (a  son  of  T.  Smith,  who  was  dead),  was  entitled  to 
two  sixteenth,  and  two  twentieth  shares,  by  purchase  from  his 
father ;  the  other  shares  were  held  by  several  other  persons,  who 
were  also  defendants  in  the  suit  It  was  not  stated  whether  reg- 
ular assignments  had  been  made  of  the  lease,  under  which  the 
Mees  mine  was  held ;  nor  did  the  pleadings  mention,  what  estate 
T.  Smith  had  in  the  mines  brought  by  him  into  the  partnership, 

or  in  whom  that  estate  had  become  vested. 
[•  299]       •  From  the  year  1808,  the  defendant  David  Smith  had, 

with  the  concurrence  of  his  partners,  been  the  sole  man- 
ager of  the  partnership  business ;  but  the  plaintiff  becoming  dis- 
satisfied with  his  conduct,  filed  the  bill  in  the  present  suit  against 
him,  making  the  other  partners  parties ;  alleging  various  acts  of 
mismanagement  and  misapplication  of  the  funds  by  Smith ;  and 
praying  for  a  dissolution  of  the  partnership;  that  the  accounts 
might  be  taken ;  that  in  the  mean  time  a  receiver  and  manager 
might  be  appointed,  and  that  D.  Smith  might  be  restrained  from 
interfering.     The  defendant,  D.  Smith,  by  his  answer  said,  that  by 


B.  C.  VOL.  XVn.]      SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES.        837 
Ho.  84.  —  Jefferys  ▼.  Smith,  IJ.  &  W.  809,  800. 

the  original  agreement  for  the  partnership,  it  was  to  continue  dur- 
ing the  residue  of  the  lease  of  the  Mees  mine,  as  long  as  there 
should  remain  in  the  mines  any  thick  coal  to  be  worked ;  he  denied 
the  different  acts  of  misconduct  imputed  to  him,  and  insisted  that 
he  ought  to  be  allowed  to  continue  manager,  or,  at  least,  ought  to 
have  the  management  of  his  own  share  in  the  mina 

A  motion  was  now  made  on  the  part  of  the  plaintiff  for  an 
injunction  to  restrain  the  defendant  Smith  from  interfering  in  the 
partnership  business,  and  for  the  appointment  of  a  receiver  and 
manager. 

Mr.  Hart  and  Mr.  Farrer  for  the  motion. 

Mr.  Benyon  and  Mr.  Phillimore  against  it. 

In  support  of  the  motion,  affidavits  filed  subsequently  to  the 
answer,  to  prove  the  mismanagement  and  misconduct  of  the  defend- 
ant, were  proposed  to  be  read.  This  was  objected  to  by  the 
defendant's  counsel,  on  the  authority  of  Smythe  v.  Sniythe, 
1  Swan.  251  (19  R  E.  72).  It  was  contended,  *in  reply,  [*  300] 
that  the  rule  in  that  case,  which  was  between  a  tenant  for 
life  and  remainder-man,  should  not  be  applied,  without  qualifica- 
tion, to  a  case  where  a  person,  employed  as  agent  or  manager  for 
others,  was  charged  with  breach  of  duty.  It  was  also  stated,  that 
the  affidavits  were  introduced  to  support  some  charges  not  met  by 
the  answer. 

The  Lord  Chancellor  (Lord  Eldon). 

That  case,  and  those  that  I  see  mentioned  in  the  note,  admit  of 
this  view:  that  the  affidavit,  though  filed  subsequently  to  the 
answer,  may  be  received  to  substantiate  a  particular  fact  alleged 
in  the  bill,  and  not  noticed  by  the  answer.  The  rule  is,  that  where 
the  injunction  is  not  obtained  on  affidavits  filed  with  the  bill,  but 
is  moved  for  after  the  answer  has  come  in,  you  cannot  read  the 
affidavits  in  contradiction  to  the  answer ;  but  you  may,  in  support 
of  a  particular  allegation  not  noticed  in  the  answer,  if  it  be  material. 
If  you  do  not  choose,  in  your  bill,  to  charge  the  particular  facts, 
you  do  not  give  the  defendant  an  opportunity  of  denying  them  in 
his  answer. 

After  some  discussion,  the  Lord  Chancellor  directed  the  plain- 
tiff's counsel  to  proceed,  and  try,  in  the  first  instance,  if  they  could 
succeed  without  the  affidavits., 

For  the  plaintiff. 


838  MINES  AND  MINERALS. 


Ho.  M.~  Jttffezyi  ▼.  Smith,  IJ.  &  W.  800-802. 


These  persons  are  partners  in  a  trade,  without  any  stipulation  as 
to  the  duration  of  their  connection;  and  the  defendant  Smith 
has  hitherto,  by  the  consent  of  the  others,  had  the  chief  direction 
of  the  concern.  But  they  have  a  right  to  revoke  his  appointment 
as  manager :  he  was  not  appointed  by  original  contract  between 

the  parties. 
[*  301]       *  For  the  defendant. 

This,  if  it  is  to  be  considered  as  a  partnership,  was  not 
one  at  will,  but  for  the  term  originally  agreed  upon ;  and,  as  no 
case  has  been  made  out  upon  the  answer  against  the  defendant,  a 
receiver  ought  not  to  be  appointed. 

The  Lord  Chancellor. 

If  persons,  as  partners,  become  the  purchasers  of  a  lease  for  forty 
years,  that  is  not  an  agreement  for  a  partnership  for  that  term. 

For  the  defendant. 

But  this  defendant  is  more  properly  to  be  looked  upon  as  a 
purchaser  of  an  undivided  interest  in  real  property,  which  may  be 
sold  from  time  to  time,  as  the  owner  pleases.  Then,  can  it  be  a 
partnership,  when  this  can  be  done,  without  the  consent  of  the 
other  parties  ? 

The  Lord  Chancellor. 

Might  it  not  be  a  partnership,  with  liberty  to  each  partner  to 
introduce  any  other  person  into  the  partnership  ? 

For  the  defendant. 

We  cannot  contend  that  the  defendant  has  a  right  to  continue 
manager  of  the  whole  mine  against  the  consent  of  the  other  owners; 
they  may  act  for  themselves,  but  they  have  no  right  to  oust  him  of 
his  own  share,  because  they  cannot  agree  with  him.  Persons  who 
are  tenants  in  common  of  land,  cannot  ask  that  a  manager  should 

be  put  in  possession  for  all  parties. 
[•  302]      *  The  Lord  Chancellor. 

The  question  is,  whether  mines  have  not  been  always 
considered,  not  altogether,  but  in  some  sort,  as  a  species  of  trade. 
How  it  may  be  in  Wales,  I  don't  know  ;  but  in  my  country,  where 
there  are  frequently  twenty  owners  of  the  same  mine,  if  each  is  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  practi- 
cable and  feasible  way  ?  I  believe  I  have  a  note  of  a  case  before  Lord 
Hardwicke  which  confirms  me  in  the  idea,  that  where  there  are 


R.  C.  VOL.  XVII.]      SECT.  VH.  —  SPECIAL  RULES  AS  TO  REMEDIES.       839 
Ho.  84.  —  Jefftzyi  ▼.  Smith,  IJ.  &  W.  802^  808.  —  VotM. 

part-owners  of  a  mine,  and  they  cannot  by  contract  agree  to  ap- 
point a  manager,  this  Court  will  manage  it  for  them. 

The  Lord  Chancellor. 

The  case  I  alluded  to  yesterday  was  one  before  Lord  H  ardwicke 
in  1737 ;  and  it  probably  did  not  occur  to  Lord  Thurlow  when  he 
expressed  his  doubt  as  to  the  interference  of  this  Court  in  the  case 
of  trespass.  Lord  Hardwicke,  in  that  case,  says,  that  a  colliery  is 
to  be  considered  in  the  nature  of  a  trade  (  Vide  Story  v.  Lord  Wind- 
sor, 2  Atk.  630,  and  cases  there  cited ;  Amb.  56 ;  Sayer  v.  Pierce, 
1  Ves.  Sen.  232 ;  Belt's  Suppl.  127 ;  and  1  Swan.  518  (18  E.  R 
132));  and  where  persons  have  different  interests  in  it,  it  is  to 
be  regarded  as  a  partnership ;  and  that  the  difiBiculty  of  knowing 
what  is  to  be  paid  for  wages,  and  the  expenses  of  management, 
gives  the  Court  a  jurisdiction  as  to  the  mesne  profits,  which  it 
would  not  assume  with  respect  to  other  lands.  On  this  ground, 
and  on  account  of  the  peculiarity  of  this  species  of  produce,  the 
Court  gives  an  injunction  against  trespass,  and  allows  a  party  to 
maintain  a  suit  for  the  profits,  which,  in  other  cases,  it 
•  would  not  do.  Here  there  are  twenty  shares  ;  and  if  each  [*  303] 
owner  may  employ  a  manager  and  a  set  of  workmen,  you 
destroy  the  subject  altogether ;  it  renders  it  impossible  to  carry  it 
on.  It  appears  to  me,  therefore,  upon  general  principles,  without 
reference  to  the  particular  circumstances  of  any  case,  that  where 
persons  are  concerned  in  such  an  interest  in  lands  as  a  mining 
concern  is,  this  Court  will  appoint  a  receiver,  although  they  are 
tenants  in  common  of  it.  Take  the  order  for  a  receiver,  and  let 
every  owner  be  at  liberty  to  propose  himself  as  manager  before 
the  Master. 

ENGLISH  NOTES. 

The  Court  will  not,  however,  appoint  a  receiver  at  the  instance  of 
the  managing  part-owner  and  partner  in  a  mine,  where  there  has  been 
no  interference  on  the  part  of  the  other ;  although  it  is  alleged  that 
the  latter  refuses  to  assist  in  providing  funds  for  necessary  expenses. 
Roberts  v.  Eh&rhardt  (1854),  Kay,  148,  23  L.  J.  Ch.  201.  The  best 
solution,  if  matters  have  come  to  a  deadlock,  may  be  to  order  a  sale  of 
the  property  with  liberty  to  bid,  as  was  done  in  Rowlands  v.  Evans 
(1862),  30  Beav.  302,  31  L.  J.  Ch.  265.  That  would  now  be  competent 
under  the  Partition  Act  of  1868,  in  the  case  of  tenants  in  common,  even 
if  there  were  not  a  partnership. 

On  the  same  principle  as  that  applied  in  the  above  ruling  case,  the 


840  MINES  AND   MINEHALS. 


Vo.  85.  —  lUrtin  ▼.  Porter.  —  Kola. 


mortgagee  of  a  leasehold  mining  property  has  been  held  entitled  to  have 
a  receiver  and  manager  appointed  by  the  Goart.  Gloucester  Banking 
Co.  V.  Rudry  Mcrthyr  Coal  Colliery  Co.  (C.  A.)  1895,  1  Ch,  629,  64 
L.  J.  Ch.  461,  72  L.  T.  376,  43  W.  E.  486. 

AMERICAN  NOTES. 

This  doctrine  is  found  or  implied  in  5anto  Clara  M,  Ass,  y.  QuichsUver  M. 
Co.y  17  Federal  Reporter,  657 ;  Dougherty  y.  Creary,  80  California,  290 ;  Manville 
V.  Parks,  7  Colorado,  128 ;  Judge  y.  Braswellj  13  Bush  (Kentucky),  67 ;  26  Am. 
Rep.  185 ;  Burgan  y.  Lyell,  2  Michigan,  102 ;  Nolan  y.  Lovelock,  1  Montana^ 
224 ;  Babcock  v.  StewaH,  58  Penn.  State,  179 ;  Adam  y.  Briggs  Iron  Co.,  7 
Cushing  (Mass.),  861;  Oraham  y.  Pierce,  19  Grattan  (Yirginia),  28 ;  SkOlman 
y.  Lachnan,  23  California,  198 ;  88  Am.  Dec.  96  (see  notes,  id.  104) ;  Snyder  y. 
Bumham,  77  Missouri,  52.  These  cases  with  the  principal  case  are  cited  in 
15  Am.  &  £ng.  £nc  of  Law,  p.  609,  and  the  principal  case  is  cited  in  Freeman 
on  Co-Tenancy,  sect  827,  with  Hill  y.  Taylor^  22  California,  191. 


No.  35.  — MARTIN  v.  PORTER 
(1839.) 

No.  36.  — JEGON  v.  VIVIAN. 
(1871.) 

No.  37.  — JOB  V.  POTTON. 
(1875.) 

RULE. 

A  TRESPASSER  who  works  coal  beyond  the  limits  of  his 
property  is  liable  in  damages  to  the  value  of  the  coal  when 
first  converted  into  a  chattel,  without  allowing  for  the 
expense  of  getting  it  out  of  the  seam  ;  but  under  special 
circumstances  of  working  under  a  honu  ^de  claim,  a  tres- 
passer will  be  allowed  the  expense  of  hewing  the  coal  as 
well  as  the  expenses  of  carrying  it  to  the  pit's  mouth  or 
elsewhere  on  the  way  to  a  market. 

A  tenant  in  common  in  accounting  to  the  other  tenants 
in  common  for  the  proceeds  received  by  him  (in  excess  of 
his  own  share)  of  coal  worked  by  him,  is  entitled  to  all 
just  allowances. 


B.  C.  VOL.  XVII.]      SECT.  VII.  —  SPECIAL  BULES  AS  TO  REMEDIES.       841 
Ho.  85.  — Martin  ▼.  Portor,  5  K.  &  W.  S68»  858. 

Martm  v.  Porter. 

5  M.  &  W.  352-354  (s.  c.  S  Horn  &  Hnrl.  70). 

Mines*  —  Trespass. — Measure  of  Damages. 

Where  the  defendant,  in  working  his  coal  mine,  broke  through  the  [852] 
barrier,  and  worked  the  coal  under  the  land  adjoining,  belonging  to  the 
plaintiff,  and  raised  it  for  purposes  of  sale, — Held,  in  trespass  for  such  working, 
that  the  proper  estimate  of  damages  was  the  -value  of  coal  so  raised,  without 
deducting  the  expense  of  getting  it 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  sitnate  at 
Darfield,  in  the  county  of  York,  and  breaking  and  entering  a  cer- 
tain coal  mine,  &c.,  under  the  said  close,  and  taking  and  carrying 
away  the  coal,  and  converting  and  disposing  thereof  to  the  use  of 
the  defendant 

Plea,  payment  into  Court  of  the  sum  of  £133,  and  no  damages 
ultra.    Beplication,  damages  ultra. 

At  the  trial  before  Parke,  B.,  at  the  York  Spring  Assizes,  it 
appeared  that  the  plaintiff  was  a  lessee  of  coal  mines  under  the 
Duke  of  Leeds,  and  that  the  defendant  was  the  owner  of  the 
adjoining  estate.  In  the  year  1838,  in  consequence  of  inquiries 
having  been  instituted,  it  was  discovered  that  the  defendant  had 
worked  the  coal  under  the  plaintiff's  land,  to  an  extent  exceeding 
a  rood.  The  defendant,  by  paying  money  into  Court,  admitted  the 
trespass ;  and  the  only  question  at  the  trial  was,  upon  what  princi- 
ple the  damages  were  to  be  assessed ;  the  plaintiff  contending  that 
the  defendant's  liability  was  to  the  value  of  the  coal  when  raised 
on  the  pit  bank,  and  without  any  deduction  for  the  expense  of  its 
working;  that  he  ought  also  to  pay  for  the  under-ground  way- 
leave;  and  that  damages  were  also  recoverable  for  his  breaking 
through  the  barrier.  The  learned  Judge  was  of  opinion  that  the 
plaintiff  was  entitled  to  the  value  of  the  coal  at  the  pit's  mouth, 
as  chattels  to  which  he  would  have  been  entitled  upon  demand ; 
and  that  he  was  also  entitled  to  compensation  for  the  defendant's 
passing  through  his  land  and  using  the  way  leave,  which,  in  the 
neighbourhood  of  Leeds,  was  proved,  to  be  2d.  per  ton.  The  jury 
adopted  the  above  principle,  and  found  the  value  of  the  coals, 
when  got,  to  be  JB251  9«.  6d. ;  and  they  also  gave  £50  for 
the  *  use  of  the  way  leave,  making  together  j£301  9s.  6d.  [*  353] 
The  learned  Judge  gave  the  defendant  leave  to  move  to  re- 


842  MINES  AND   MINERALS. 


Ho.  85.  — Kirtiii  ▼.  Portor,  5  M.  &  W.  858,  864. 


duce  the  damages,  if  this  Court  should  be  of  opinion  that  the 
expense  of  getting  and  raising  the  coal  ought  to  be  deducted. 

Alexander  now  moved  accordingly.  The  damages  in  this  case 
ought  to  be  estimated  hj  the  average  value  of  the  coal  as  lying 
undisturbed  within  its  native  bed.  The  plaintiff  had  incurred  no 
expense  or  risk  in  the  necessary  preparations  for  its  working.  As 
far  as  he  was  concerned,  it  might  still  have  lain  undisturbed,  and 
probably  would  have  done  so,  as  the  evidence  showed  that  the 
expense  to  him  of  working  out  so  small  and  detached  a  bed  of  coal 
as  the  one  in  question  (altogether  containing  little  more  than  two 
acres  and  a  half)  would  be  double  its  saleable  price.  Had  he  con- 
tracted to  sell  it  ungotten,  the  average  price  of  coal  per  acre  in  that 
neighbourhood  being  (as  proved)  only  £300,  the  price  for  the  coal 
in  question  would  have  been  much  below  the  sum  paid  into  Court 
To  allow  of  any  other  estimate  of  damages,  would  be  to  confer  on 
the  plaintiff  a  large  profit,  in  the  absence  of  anything  either  done 
or  suffered  by  him  upon  the  occasion.  That  he  should  not  lose 
anything  by  the  unauthorised  act  of  the  defendant,  is  just ;  and 
the  proposed  reduction  of  the  damages  would  be  consistent  with 
that  view :  but  if  he  retain  the  amount  given,  on  the  principle 
laid  down  by  the  learned  Judge  at  the  trial,  he  is  paid,  not  merely 
the  value  of  his  coal,  but  a  double  value,  to  which  he  has  in  no  re- 
spect, by  any  acts  of  his  own,  entitled  himself,  and  which  cannot 
be  created  by  any  tortious  act  of  another.  Whether  the  defend- 
ant approached  the  coals  without  or  with  the  sanction  of  the 
plaintiff,  cannot  alter  their  intrinsic  worth ;  and  what  that  worth 
was  when  the  defendant  commenced  his  workings,  ought  to  be  the 

proper  test  of  this  part  of  the  damages.  It  must  not  be 
[*  354]  forgotten,  that  the  sum  claimed  *  by  the  plaintiff,  as  the 

additional  price  of  the  coals,  is  precisely  the  amount 
actually  paid  by  the  defendant  himself  to  the  workmen  before  the 
coals  were  brought  from  their  original  situation  to  the  bottom  of 
the  pit ;  and  which  must  equally  have  been  paid  by  the  plaintiff, 
had  he  been  working  with  the  same  object  Upon  what  principle 
can  the  plaintiff  claim  it  ? 

Lord  Abinger,  C.  B.  —  I  am  of  opinion  that  there  ought  to  be 
no  rule  in  this  case.  If  the  plaintiff  had  demanded  the  coals  from 
the  defendant,  no  lien  could  have  been  set  up  in  respect  of  the 
expense  of  getting  them.  How,  then,  can  he  now  claim  to  deduct 
it  7    He  cannot  set  up  his  own  wrong.    The  plaintiff  had  a  right 


B.  a  VOL.  XVII.]       SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES.       843 
Ho.  86.  —  Jegon  ▼.  Yvfiuk,  L.  B.  6  Gh.  748. 


to  treat  these  coals  as  a  chattel  interest  to  which  he  was  entitled. 
He  did  so,  and  the  only  question  then  was  their  value.  That  the 
jury  have  found.  It  may  seem  a  hardship  that  the  plaintiff  should 
make  this  extra  profit  of  the  coal,  but  still  the  rule  of  law  must 
prevail. 

Parke,  B.  —  I  remain  of  the  same  opinion  as  I  entertained  at 
the  triaL  The  plaintiff  is  entitled  to  be  placed  in  the  same  situ- 
ation as  if  these  coals  had  been  chattels  which  had  been  carried 
away.  He  had  a  right  to  them,  without  being  subject  to  the 
expense  of  conveying  them  to  the  pit's  month. 

Alderson,  B.  —  I  am  of  opinion  that  the  plaintiff  is  entitled  to 
damages,  as  for  a  trespass  to  his  goods,  the  same  as  he  would  to 
any  other  description  of  goods  belonging  to  him.  The  proper 
estimate  is  the  value  of  them  when  brought  to  the  pit  bank. 

Maule,  B.  —  I  concur  with  the  rest  of  the  Court,  and  think  the 
plaintiff  had  his  claims  assessed  in  a  manner  which  he  was  entitled 
to.  Bule  re/used. 

Jegon  V.  Vivian. 

L.  R.  6  Ch.  742-763  (s.  c.  40  L.  J.  Ch.  869 ;  19  W.  R.  365). 

Mining  Lease. — Inatroke.  —  Trespass  under  bonft  fide  Claim. — Measure  [  742] 
of  Damages.  —  Wayleave. 

A  tenant  for  life,  with  certain  powers  of  leasing,  demised  the  seamsi  and  veins 
of  coal  under  a  piece  of  land  for  twenty -one  years,  and  for  sixty  years  if  the  tenant 
for  life  had  power  so  to  do ;  with  liberty  for  the  lessee  to  search  for,  dig,  raise, 
and  sell  the  coal,  and  to  make  any  pits  or  works,  and  to  take  surface  land,  pay- 
ing for  the  damage ;  and  the  lessee  covenanted  to  work  the  mines  in  a  proper  and 
workmanlike  manner,  and  to  deliver  up  at  the  end  of  the  term  the  works,  seams, 
and  veins  of  coal  in  good  repair  and  condition,  so  that  the  said  coal  works  might 
be  continued.  The  lessees  worked  the  demised  coal  by  instroke  from  an  adjoin- 
ing colliery,  situate  to  the  rise  of  the  coal  in  the  demised  land,  and  did  not  sink 
a  pit  so  as  to  work  the  demised  coal  from  the  deep. 

They  kept  no  barrier  between  the  two  collieries,  so  that  water  and  air  passed 
from  their  other  colliery  through  the  demised  colliery  into  a  lower  colliery. 

They  also  continued  to  work  the  demised  coal  after  the  expiration  of  the  lease 
for  twenty-one  years,  claiming  to  be  entitled  for  sixty  years;  which  claim  was, 
after  much  litigation,  decided  to  be  invalid  as  against  the  reversioner. 

Heldy  that,  under  the  circumstances,  working  by  instroke  was  working  in  a 
proper  and  workmanlike  manner,  and  that  the  lessees  were  not  bound  to  sink  a 
separate  pit  for  the  demised  coal ; 

That  the  value  of  the  coal  raised  by  the  lessees,  after  the  expiration  of  the 
twenty-one  years'  lease,  was  to  be  paid  for  by  them  at  its  fair  market  valne,  as 
if  they  were  purchasers,  all  expenses  of  hewing  and  raising  being  allowed ; 


844  MINES  AND   MINERALS. 


Ho.  86.  — Jegon  ▼.  Yiviaii,  L.  X.  6  Oh.  748,  74S 


That;  under  the  tenns  of  the  lease,  the  lessees  were  Dot  liable  to  damages  for 
not  working  the  ooal  continuously ; 

That  the  lessees  were  not  bound  to  keep  up  a  barrier  so  as  to  prevent  air  and 
water  from  flowing  through  the  lessor's  mine,  and  were  not  liable  to  pay  for  way- 
leave  or  air-leave ; 

That  the  lessees  were  liable  for  any  damage  done  beyond  the  removal  of  coal 
by  working  the  mines  since  the  determination  of  the  twenty-one  years'  lease, 
and  must  also  pay  for  wayleave  or  for  the  passage  of  coal  through  the  lessor's 
mine  since  the  determination  of  the  lease. 


L.  G.  Gwyn,  who  died  in  1798,  by  his  will  devised  the  residue 
of  his  real  estates,  which  included  the  Cadley  estate,  in  the  county 
of  Glamorgan,  unto  his  daughter  Catherine  M.  Gwyn  for  her  life, 
without  impeachment  of  waste,  otherwise  than  that  by  his  will 
mentioned,  with  remainder  to  trustees,  with  remainder  to 
[*  743]  the  sons  *  and  daughters  of  his  daughter  and  their  issue  in 
tail ;  and  in  default  of  such  issue  to  several  persons  named 
in  the  will  as  the  daughter  should  by  will  appoint ;  and  in  default  of 
such  appointment,  to  the  testator's  nephew  Thomas  Powell  and  the 
heirs  of  his  body.  And  the  testator  empowered  his  daughter,  and 
all  other  persons  who  might  be  seised  of  the  estates,  to  grant  leases 
thereof  for  the  term  of  twenty-one  years  and  no  more,  taking  and 
reserving  therein  the  best  rent  that  could  be  reasonably  gotten  for 
the  same,  and  so  that  such  leases  should  commence  in  possession 
and  not  in  reversion,  and  so  that  the  tenants  be  restricted  from 
waste  and  from  assigning  vrithout  consent,  and  also  that  a  special 
reservation  might  be  made  in  every  such  lease  empowering  the; 
successive  tenants  for  life  and  their  assigns  to  dig  and  take  away 
coal,  iron  ore,  and  other  minerals  and  to  cut  down  wood.  And  the 
testator  further  directed  that  it  should  be  lavrful  for  his  said 
daughter  to  work  or  contract  for,  lease,  or  set  out  to  be  worked,  all 
coal,  iron  ore,  and  minerals  under  the  said  estates,  and  that  all  the 
issues  and  net  proceeds,  and  profits  thereof,  should  be  paid  by  his 
said  daughter  to  the  trustees  of  the  will,  and  be  by  them  applied 
in  payment  of  debts  or  in  the  purchase  of  land  as  therein 
mentioned. 

In  1828,  Catherine  M.  Gvryn,  the  daughter  of  the  testator, 
married  the  Count  de  Wuits. 

On  the  2nd  of  May,  1840,  the  Count  and  Countess  de  Wuits 
executed  an  indenture  of  lease,  whereby,  in  execution  of  the  powers 
given  her  by  the  will  of  her  father,  and  of  all  other  powers,  the 


R.  C.  VOL.  XVII.]      SECT.  VIL  —  SPECIAL  RULES  AS  TO  REMEDIES.        845 
Ho.  86.  ~  Jegon  ▼.  ViTiaa,  L.  B.  6  Oh.  748,  741. 

Countess  de  Waits  appointed  and  demised,  and  the  Count  de  Wuits 
confirmed,  unto  Joseph  Martin  all  the  mines  and  beds  of  coal 
under  three  farms  which  formed  the  Cadley  estate,  with  full  power 
for  Martin,  his  executors,  administrators,  and  assigns,  to  open, 
search,  dig,  delve,  bore,  raise,  and  use  all  lawful  means  whatsoever 
for  the  finding  and  discovering  of  all  or  any  mines  and  minerals  of 
coal  and  culm  not  already  known  under  the  said  farms,  and  to  use 
and  work  the  same,  as  well  as  the  mines,  veins,  and  seams  of  coal 
already  known,  and  to  raise  and  land  **  all  the  coal  and  culm  which 
shall  be  found  therein  respectively,  and  for  his  and  their  own  use 
and  benefit,  to  take,  carry  away,  and  dispose  of  all  the  coal  and 
culm  so  to  be  raised  and  landed,  and  also  free  liberty,  power, 
and  authority  to  and  for  the  said  Joseph  Martin,  his 
*  executors,  administrators,  and  assigns,  and  his  and  their  [*  744] 
agents,  colliers,  workmen,  labourers,  and  servants,  and 
others  lawfully  authorised  to  dig,  sink,  drive,  run,  and  make  any 
pits,  shafts,  levels,  soughs,  sluices,  watercourses,  railroads,  and  other 
roads,  works,  and  contrivances  in,  over,  under,  or  upon  the  said 
several  farms  and  lands  hereinbefore  described,  and  to  maintain 
and  use  the  same.  And  also  the  free  liberty,  license,  power,  and 
authority  to  have  and  use  a  sufficient  part  of  the  said  several 
farms  and  lands  for  laying  and  placing  the  coal  and  culm  so  to  be 
raised  and  landed  in  the  course  of  working  the  said  mines,  veins, 
and  seams  of  coal  and  culm  hereby  demised,  and  for  laying  and 
placing  any  other  coal  and  culm,  and  also  to  erect,  build,  set  up, 
and  maintain  on  any  convenient  part  or  parts  of  the  same  several 
farms  and  lands,  any  engines,  erections,  and  machines  for  the 
better  and  more  effectually  working  the  said  mines,  or  any  other 
mines.  And  also  such  houses,  hovels,  and  other  buildings  as  may 
be  found  necessary  or  expedient  for  the  use  and  accommodation  of 
colliers,  workmen,  and  labourers,  and  for  the  standing  and  placing 
of  the  horses,  carriages,  implements,  and  utensils  which  shall  be 
found  or  deemed  necessary,  or  be  used  in  or  about  the  working  of 
the  said  mines,  veins,  and  seams  of  coal  and  culm  hereby  demised, 
or  of  or  belonging  to  any  other  person.  And  also  the  like  full  and 
free  liberty,  power,  and  authority  for  that  purpose  to  raise,  dig,  take, 
carry,  and  use  all  or  any  of  such  coal  and  culm  as  may  be  in  or 
upon  the  said  several  farms  and  lands,  or  any  part  thereof,  and  also 
to  use,  sell,  and  dispose  thereof,  for  the  benefit  of  him  the  said 
Joseph  Martin,  his  executors,  administrators,  and  assigns.    And 


846  MINES  AND  MINERALS. 

Ho.  86.  —  Jegtm  ▼.  ViTiaii,  L.  B.  6  Gh.  744,  740. 

also  to  bring,  lay,  and  place  on  the  same  several  farms  and  lands 
all  such  timber,  wood,  iron,  stone,  brick,  lime,  and  other  materials 
as  he  the  said  Joseph  Martin^  his  executors,  administrators,  and 
assigns,  or  his  or  their  agents,  servants,  or  workmen,  shall  or  may 
want  or  have  occasion  to  use  or  require  in  or  about  the  erecting, 
building,  or  repairing  of  such  engines,  erections,  and  buildings,  as 
aforesaid,  and  also  to  do  all  and  every  such  other  acts,  matters,  and 
things  whatsoever  in,  under,  or  upon  the  said  several  farms  and 
lands,  or  any  part  thereof,  as  shall  or  may  be  deemed  necessary  or 
expedient  in  or  about,  or  for  the  pursuing  or  working  of  the  said 

mines,  veins,  and  seams  of  coal  and  culm  hereby  demised, 
[*  745]  or  of  or  *  belonging  to  any  other  person,  and  raising,  and 

landing  the  same  thereupon,  and  taking,  converting,  using, 
carrying  away,  and  disposing  of  the  same  to  and  for  the  proper  use 
and  benefit  of  him  the  said  Joseph  Martin,  his  executors,  adminis- 
trators, and  assigns.  And  likewise  full  and  free  ingress,  egress, 
and  regress  to  and  for  the  said  Joseph  Martin,  his  executors, 
administrators,  and  assigns,  his  and  their  agents,  labourers,  ser- 
vants, and  workmen,  customers  and  dealers  in  and  upon  the  said 
several  farms  and  lands,  with  horses,  carts,  and  other  carriages,  to 
and  for  the  getting,  taking,  and  carrying  away  the  said  coal  and 
culm,  or  of  or  belonging  to  any  other  person  as  aforesaid,  making 
such  reasonable  satisfaction  as  hereinafter  mentioned  to  the  tenants 
or  occupiers  for  the  time  being  for  the  same  several  farms  and 
lands  for  such  trespass  or  damage  as  shall  be  occasioned  therein 
respectively  by  reason  of  the  liberties  and  privileges  hereby  granted, 
and  using  and  pursuing  the  same  respectively.  To  have  and  to 
hold,  use,  exercise,  and  enjoy  the  said  mines,  veins,  and  seams  of 
coal  and  culm,  and  all  and  singular  the  liberties,  licenses,  powers, 
and  authorities,  and  premises  hereinbefore  expressed  and  intended 
to  be  hereby  appointed,  granted,  and  demised  unto  the  said  Joseph 
Martin,  his  executors,  administrators,  and  assigns,  from  the  25th 
day  of  March  last,  for  and  during  and  unto  the  full  end  and  term 
of  twenty-one  years  (and  if  the  said  Catherine  M.  Gwyn,  Countess 
de  Wuits,  has  power  or  authority  to  appoint  or  demise  the  same  by 
the  said  power  of  leasing  contained  in  the  said  will  of  the  said 
L.  B.  Gwyn  for  the  term  of  sixty  years,  to  be  commenced  or  be 
computed  from  the  said  25th  day  of  March  last).  And  to  have 
and  to  hold,  use  and  enjoy,  all  and  every  the  coal  and  culm  that 
shall  be  found,  gotten,  or  raised  during  the  said  term  of  twenty-one 


IL  C.  VOL.  XVII.]      SECT.  VU.  —  SPECIAL  RULES  AS  TO  REMEDIES.       847 
Ho.  86.  —  Jegon  ▼.  ViTiaa,  L.  B.  6  Oh.  745,  746. 

years  (or  the  said  term  of  sixty  years,  as  the  case  may  be)  in  or 
under  all  or  any  part  of  the  said  several  farms  and  lands  unto  and 
by  the  said  Joseph  Martin,  his  executors,  administrators,  and 
assigns,  to  his  and  their  own  use  and  benefit,  and  as  and  for  his 
and  their  own  proper  goods  and  chattels,  yielding  and  paying 
therefor,  yearly  and  every  year  during  the  said  term  hereby  ap- 
pointed, the  clear  and  net  rent  or  sum  of  £40  of  lawful  British 
money,  by  equal  half-yearly  payments,  on  the  days  and  times  and 
in  manner  hereinafter  mentioned.  And  also  yielding  and 
paying  during  the  said  term  hereby  *  appointed  the  fol-  [*746] 
lowing  rents  and  royalties  (that  is  to  say)  the  rent  or 
royalty  of  4s.  of  like  lawful  money  for  each  and  every  wey  of  coal 
and  culm  over  and  above  and  beyond  the  first  two  hundred  weys 
to  be  raised." 

The  indenture  contained  covenants  by  Martin  for  payment  of 
the  rent,  the  royalties,  and  the  rates  and  taxes,  "  and  also  that  he 
the  said  Joseph  Martin,  his  executors,  administrators,  and  assigns, 
shall  work  and  carry  on  the  said  mines,  veins,  and  seams  of  coal 
and  culm  thereby  demised  in  a  proper  and  workmanlike  manner ; " 
and  for  payment  to  the  occupiers  of  the  three  farms  of  satisfaction 
for  the  trespass  or  actual  damage  done  by  working  the  mines 
aforesaid,  or  carrying  the  produce  away,  or  carrying  any  materials, 
or  done  in  any  other  manner  by  means  of  the  premises  or  of  the 
liberties  or  privileges  incident  thereto.  Provision  was  also  made 
as  to  compensation  for  land  taken  by  the  lessees.  The  lessees 
were  bound  to  keep  accounts.  The  lessees  might,  by  twelve 
months'  notice,  determine  the  lease,  and  might  at  all  times  dur- 
ing the  term  remove  from  the  several  farms,  lands,  cmd  grounds 
any  machinery,  railways,  or  works  which  they  had  erected  or 
laid  down  in,  under,  or  upon  any  part  of  the  estate.  Also,  the 
lessees  might  use  any  water  flowing  in,  under,  or  over  the  said 
estate,  and  convey  and  divert  any  other  water  from  other  lands 
in,  under,  or  over  the  same,  rendering  therefore  satisfaction  for 
any  damage ;  and  make,  maintain,  and  use  as  well  such  railways, 
roads,  and  watercourses  in,  under,  and  through,  upon,  or  over  the 
farms  and  lands  demised  as  the  lessees  should  think  necessary 
for  carrying  the  coal  and  culm  which  should  be  raised  out  of  the 
seams  and  veins  demised.  And  Joseph  Martin  further  covenanted 
"that  he,  the  said  Joseph  Martin,  his  executors,  administrators, 
and  assigns,  shall,  at  the  end,  expiration,  or  other  sooner  deter- 


848  MINES  AND  MINERALS. 

Ho.  86.— Jagon  ▼.  Yiviaii,  L.  B.  6  GIl  746,  747. 

mination  of  the  term  hereby  appointed  or  granted,  peaceably  and 
quietly  surrender  and  yield  up  unto  the  said  C.  M.  G.,  Countess 
de  Wuits,  or  her  assigns,  or  to  such  person  or  persons  so  for  the 
time  being  entitled  or  actually  possessed  of  the  said  estate  ex- 
pectant as  aforesaid,  or  to  whomsoever  the  said  G.  M.  6.,  Countess 
de  Wuits,  or  her  assigns,  or  such  other  person  or  persons  may 
direct,  all  and  singular  the  coal  works  and  mines,  seams  and 
veins  of  coal  and  culm,  quarries  of  stone  and  other  the 
[*747]  premises  hereby  appointed  and  granted,  and  *all  the 
pillars  made  or  left  for  supporting  the  ground,  and  also 
all  pits  and  shafts  which  shall  be  then  open,  adits,  levels,  drains, 
and  watercourses,  and  all  roads  and  ways  in,  upon,  or  under  the 
same  lands  or  grounds,  or  any  part  thereof  (save  and  except  the 
engines,  machinery,  tramroads,  railroads,  and  ironwork  and  wood- 
work of  every  description  hereinbefore  mentioned),  in  good  repair, 
order,  and  condition,  so  as  that  the  said  coal  works  may  be  con- 
tinued, and  the  pillars  worked  and  raised  by  the  said  G.  M.  G., 
Countess  de  Wuits,  or  her  assigns,  or  such  other  person  or  persons 
as  aforesaid,  in  case  she  or  they  shall  think  proper  so  to  do,  and 
shall  and  will  in  case  the  said  Countess  de  Wuits  or  her  assigns, 
or  such  other  person  or  persons  as  aforesaid,  shall  by  any  writing 
under  her,  his,  or  their  hand  or  hands  request  the  same  (but  not 
otherwise),  fill  up  and  level  all  and  every  and  such  and  so  many 
of  the  said  pits  or  shafts  as  she,  he,  or  they  may  be  required  to 
fill  up,  level,  and  restore  the  said  lands  and  hereditaments  into  a 
state  proper  for  cultivation  as  far  as  circumstances  will  permit" 
And  the  lease  contained  many  other  provisions  as  to  working 
the  coal. 

The  Countess  de  Wuits  died  in  December,  1840,  without  issue, 
and  without  having  executed  the  power  of  appointment  given 
her  by  the  will,  whereupon  T.  G.  L.  C.  Powell,  a  grandson  of 
Thomas  Powell,  became  entitled  to  the  Cadley  estate  as  tenant  in 
tail  under  the  will  of  L.  B,  Gwyn,  and  took  the  name  of  Gwyn. 
T.  G.  L.  C.  Gwyn  barred  the  entail,  and  in  1855  agreed  to  sell  to 
the  plaintiff  Henry  Ernest  all  the  rents,  royalties,  and  money  due 
under  the  lease  of  1840  up  to  the  2nd  of  August,  1856.  In  1855 
T.  G.  L.  C.  Gwyn  sold  the  Cadley  estate,  subject  to  the  last- 
mentioned  agreement,  to  one  Edgar,  whose  devisees  sold  it  to 
Henry  Ernest,  who  thus  became  possessed  of  the  whole  estate. 
Henry  Ernest  afterwards  mortgaged  the  estate  to  the  other 
plaintiff,  Trew  Jegon. 


B.  C.  VOL.  XVn.]      SECT.  VIL  —  SPECIAL  EULE8  AS  TO  REMEDIES.       849 
Ho.  86.  — Jagoi  ▼.  Yhriaa,  L.  B.  6  Ch.  747,  748. 

Martin^  soon  after  the  date  of  the  lease,  assigned  it  to  a  com- 
pany called  the  Swansea  Coal  Company,  and  by  various  assign- 
ments the  interest  of  Martin  and  of  the  Swansea  Coal  Company 
became  vested  in  the  defendants,  H.  H.  Vivian  and  J.  Y.  Williams. 

On  the  31st  of  December,  1860,  Henry  Ernest  filed  a  bill 
against  Vivian,  Williams,  and  others,  alleging  that  the  lease  of 
the  2nd  of  May,  1840,  was  obtained  from  the  Countess 
de  Wuits  by  fraud,  *  and  also  that  it  was  invalid  at  law  [*  748] 
beyond  her  life  estate,  and  praying  an  account  and  pay- 
ment for  the  coal  and  minerals  taken  by  the  defendants,  and  for 
damage  done  by  working  the  mines  improperly,  and  that  posses- 
sion might  be  delivered  to  the  plaintiff.  This  suit  of  Ernest  v. 
Vivian  was  heard  before  the  Vice-Chancellor  Kindersley,  who, 
on  the  22nd  of  December,  1863,  dismissed  the  bill  with  costs  on 
the  ground  of  the  plaintiff's  laches  or  acquiescence,  and  without 
prejudice  to  any  right  at  law  or  to  any  bill  he  might  file  admitting 
the  validity  of  the  lease  (33  L.  J.  Ch.  513). 

The  term  of  twenty-one  years  granted  by  the  lease  of  1840 
expired  on  the  24th  of  March,  1861.  Ernest  gave  frequent 
notices  to  the  defendants  that  they  were  trespassers,  and  on  the 
14th  of  February,  1865,  the  plaintiff  in  this  suit  brought  an 
action  of  ejectment  in  the  Court  of  Common  Pleas,  in  the  name 
of  Jegon,  against  Vivian  for  the  recovery  of  the  mines  and 
hereditaments  demised  by  the  lease,  the  question  being  whether 
the  demise  for  sixty  years  was  valid. 

The  action  was  tried  at  Swansea,  when  a  verdict  was  entered 
for  the  defendant,  with  leave  to  move  to  enter  a  verdict  for  the 
plaintiff.  The  Court  of  Common  Pleas  was  moved  accordingly 
and  a  rule  granted,  which  was  argued  and  discharged  on  the 
25th  of  November,  1865,  as  reported  (L  R  1  C.  P.  9).  A  case 
was  then  stated  by  way  of  appeal,  and  on  the  6th  of  February, 
1867,  the  Court  of  Exchequer  Chamber  directed  that  the  rule 
should  be  made  absolute  and  a  verdict  entered  for  the  plaintiff, 
which  was  accordingly  done  (L.  R  2  C.  P.  422).  The  defendant 
appealed  to  the  House  of  Lords,  who,  on  the  29th  of  June,  1868, 
dismissed  the  appeal  (L.  R  3  H.  L.  285). 

Before  the  appeal  to  the  House  of  Lords  was  decided,  the  plain- 
tiffs had  filed  the  bill  in  this  suit  (last  amended  on  the  1st  of 
May,  1868)  stating  as  above  stated,  and  admitting  for  the  pur- 
poses of  this  suit  that  the  lease  of  1840  was  in  equity  a  valid 

VOL.  XVII.  —  54 


850  MINES  AND  MINEBALa 


Vo.  86.  —  Jegon  v.  Vivian,  L.  B.  6  Ch.  74S,  748. 


demise  for  the  term  of  twenty-one  years;  and  claiming  damages 
and  an  injunction  under  the  circumstances  before  and  hereinafter 
stated. 

The  Cadley  estate  is  of  about  289  acres.  The  Swansea  Coal 
Company  had,  at  the  date  of  the  lease,  obtained  agreements  for 
leases  of  adjoining  collieries,  called  Mynydd  Newydd  and 
[*  749]  Pantymaes,  *  and  the  plaintiffs  alleged,  but  the  defendants 
denied,  that  Martin  took  the  lease  of  the  Cadley  estate  for 
the  purpose  of  assigning  it  to  the  Swansea  Coal  Company.  That 
part  of  the  Cadley  estate  which  contained  the  more  valuable 
minerals  abutted  towards  the  south  upon  the  Mynydd  Newydd 
colliery,  in  which  the  Swansea  Coal  Company,  in  or  about  the 
year  1843,  sank  a  pair  of  shafts  or  pumping  and  winding  pits, 
and  on  which  they  constructed  a  railway  and  other  works  for  the 
conveyance  of  coaL  The  dip  of  the  coal-measures  under  the 
Cadley  estate  was  to  the  deep  of  or  slopes  down  from  the  coal 
in  the  Mynydd  Newydd  colliery,  so  that  the  water  from  that 
colliery  flowed  through  the  ways  and  channels  cut  by  the  lessees 
into  the  Cadley  estate,  and,  as  the  plaintiffs  alleged,  would,  if  not 
drawn  off  and  pumped  up,  drown  the  mines  therein;  but  the 
defendants  maintained  that  it  merely  flowed  through  the  Cadley 
estate  into  another  colliery  belonging  to  the  defendants,  and  was 
pumped  back  again  and  returned  to  the  Mynydd  Newydd  pit 
The  Swansea  Coal  Company  worked  the  coal  under  the  Cadley 
estate  by  means  of  a  slant  driven  from  the  Mynydd  Newydd  pit> 
and  took  large  quantities  of  coal  therefrom.  The  plaintiffs  con- 
tended that  this  mode  of  working  was  improper,  and  that  pits 
and  shafts  ought  to  have  been  sunk  upon  the  Cadley  estate  so 
as  to  drain  and  ventilate  independently  of  the  adjoining  colliery, 
in  which  case  proper  barriers  would  have  been  kept  to  prevent 
the  workings  on  the  Cadley  estate  from  being  flooded  by  water 
from  the  collieries  to  the  rise  of  that  estate,  and  from  being 
rendered  dangerous  by  gases  produced  in  the  adjoining  collieries. 
And  the  plaintiffs  stated  that  some  of  the  workings  in  the  Cadley 
estate  had  in  consequence  been  drowned  out  and  abandoned,  as 
to  which,  however,  there  was  a  dispute.  The  defendants  con- 
tended that  the  coal  on  the  Cadley  estate  was  of  small  value,  and 
could  only  be  worked  to  advantage  from  another  colliery,  and  that 
the  cost  of  a  shaft  would  be  £27,000  at  least  On  these  points 
much  evidence  was  entered  into,  the  effect  of  which  is  stated  in 
the  judgment  of  the  Lord  Chancellor. 


K.  C.  VOL.  XVII.]       SECT.  VII.  —  SPECIAL  RULES  AS  TO  EEMEDIES.       851 
Ho.  86.  —  Jegon  v.  Yiyiaa,  L.  B.  6  Gh.  748,  760. 

The  plaintiffs  further  raised  a  question  whether  the  £40  dead  rent 
was  to  be  allowed  for  in  the  payment  of  the  royalties.  They  also 
claimed  damages,  because  the  defendants  had  not  worked  the  coal 
continuously,  and  had  not  raised  so  much  as  they  might 
*  have  raised.  The  defendants  admitted  that  from  1844  [*750] 
to  1847  they  did  not  work  the  coal  on  the  Cadley  estate, 
and  did  not  contend  that  they  had  raised  all  the  coal  they  might 
have  raised. 

The  plaintiffs  also  claimed  the  value  of  the  coal  raised  since  the 
determination  of  the  lease,  allowing  for  the  cost  of  haulage,  but 
not  for  the  cost  of  getting  and  hewing. 

The  defendants  had  worked  some  coal  in  estates  called  Panty- 
maes  and  Blaenymaes  by  means  of  headings  driven  through  the 
Cadley  estate  into  the  Mynydd  Newydd  pit,  and  had  carried  the 
coal  and  ventilated  their  pits  through  the  Cadley  estate;  and 
the  plaintiffs  further  claimed  payment  as  for  way-leaves  and 
royalties  on  this  account 

The  plaintiffs  further  claimed  damages  from  the  defendants  for 
breaking  the  barrier  between  the  mines,  and  asked  for  an  injunc- 
tion to  restrain  the  defendants  from  allowing  the  mines  to  remain 
so  as  to  be  flooded,  and  from  using  the  mines  for  the  drainage  and 
ventilation  of  other  mines.  The  defendants  said  that  the  barriers 
had  been  broken  by  those  who  were  working  the  Cadley  colliery 
before  the  Swansea  Coal  Company  came  into  existence,  and  that 
when  the  Cadley  coal  was  worked,  the  water  would  have  made  its 
way  from  the  adjoining  mines  to  the  rise.  They  admitted  that 
they  did  not  preserve  barriers  between  the  mines  under  the  Cadley 
estate  and  the  Mynydd  Newydd  colliery,  and  said  that  they  were 
under  no  obligation  to  do  so. 

Lord  EoMiLLY,  M.  R,  before  whom  the  cause  was  heard,  was  of 
opinion  that,  as  to  the  coal  raised  since  the  expiration  of  the  lease 
for  twenty-one  years,  the  defendants  must  be  treated  as  having 
taken  it  by  mistake  ;  that  the  defendants  were  not  obliged  to  sink 
a  pit,  and  had  worked  the  mine  in  a  proper  and  workmanlike 
manner ;  that  they  were  entitled  to  use  the  passages  through  the 
Cadley  estate  during  the  lease ;  that  they  were  not  bound  to  work 
more  coal  than  they  had  worked.  And  his  lordship  directed :  1. 
An  account  of  what  was  due  for  royalties  under  the  lease ;  2.  An 
account  of  all  coal  and  minerals  got  from  the  mines  since  the  ex- 
piration of  the  lease,  and  of  the  value  thereof,  the  defendants  being 


862  MINES  AND  MINEBAU3. 


Vo.  86.  —  Jegon  v.  Vvriui,  L.  B.  6  Ch.  75(^754. 


charged  only  with  the  fair  value  of  such  coals  and  minerals  at  a 
fair  rate  as  if  the  mines  had  been  purchased  from  the  plaintiffs ; 
3.  An  account  of  what  was  to  be  paid  for  the  passage 
[*  751]  *  of  coal  through  the  estate  since  the  25th  of  March,  1861. 
That  part  of  the  bill  which  prayed  an  account  of  the  dam- 
age done  by  working  the  mines  in  an  improper  manner,  and  by 
not  leaving  barriers,  and  by  not  sinking  proper  shafts,  was  dis^ 
missed,  and  no  costs  were  given. 

From  this  decree  the  plaintiffs  appealed.  They  asked  —  first,  an 
injunction  to  restrain  the  defendants  from  draining  or  ventilating 
through  the  plaintiffs'  mine ;  secondly  JE40  a  year  as  an  absolute 
rent ;  thirdly,  damages  for  not  sinking  the  pit,  and  for  not  keeping 
up  the  barriers;  fourthly,  that  the  coal  taken  might  be  valued, 
allowing  for  haulage  to  the  pit's  mouth,  but  not  for  hewing  or  other 
expenses ;  and  fifthly,  damages  for  not  working  the  pit  continuously. 

Mr.  Jessel,  Q.  C,  Mr.  Swanston,  Q.  C,  and  Mr.  Jackson,  for  the 
plaintiffs :  — 
[753]      At  the  conclusion  of  their  argument,  the  Lord  Chan- 
cellor expressed  his  opinion  that  the  defendants  were  not 
bound  to  work  continuously. 

Sir  Boundell  Palmer,  Q.  C,  Mr.  Southgate,  Q.  C,  and  Mr.  Speed 
for  the  defendants :  — 

Mr.  Jessel,  in  reply :  — 

[754]      Lord  Hathbrlet,  L.  C.  :  — 

One  main  question  in  this  case  is,  whether  the  defendants 
were  by  the  terms  of  the  lease  bound  to  sink  a  pit  on  the  Gadley 
estate,  so  that  when  the  reversioners,  who  are  represented  by  th^ 
plaintiffs,  came  into  possession,  they  should  be  able  to  continue 
working  the  mines. 

The  argument  with  which  I  have  been  chiefly  pressed  in  sup- 
port of  the  claim  made  by  the  plaintiffs  was  founded  on  the  provi- 
sion in  the  lease  that  the  estate  shall,  at  the  expiration  of  the 
lease,  be  delivered  up,  so  that  the  works  may  be  continued.  I 
think  a  great  part  of  the  fallacy  of  the  argument  for  amplifying 
that  covenant  arises  from  considering  it  to  mean  that  which  might 
possibly  have  been  anticipated,  on  the  part  of  the  lessors  as  well  as 
on  the  part  of  the  lessees,  when  the  lease  was  entered  into,  as 
likely  to  take  place ;  and  this  was  urged  before  me  as  an  argument 
to  induce  the  Court  to  introduce  an  implied  covenant,  which  the 


R.  C.  VOL.  XVII.]      SECT.  VIL  —  SPECIAL  RULES  AS  TO  REMEDIES.       853 
Vo.  86.  — Jegon  ▼.  Vlidan,  L.  A.  6  Oh.  754,  766. 

parties  nowhere  expressed,  becanse  it  was  said  that,  unless  an 
implied  covenant  were  introduced,  that  intention  which  was  pres- 
ent to  the  minds  of  both  parties  could  not  be  carried  into  effect 

Now,  the  first  observation  that  arises  with  reference  to  this 
clause,  which  is  very  often  to  be  found  in  leases  of  this  description, 
is,  that  this  lease  must  have  been  prepared  and  entered  into  with 
due  consideration.  I  am  bound  to  consider  that  each  party  under- 
stood what  suited  his  own  purpose  best  in  entering  into  such  a 
bargain.  In  some  cases  a  question  has  arisen  as  to  the  effect  of 
the  word  "intention."  That  question  was  raised  in  the  case  of 
Righy  v.  Oreat  Western  Railway  Company,  10  Jur.  488,  531. 
There  a  doubt  arose  as  to  whether  the  company  were  bound  to 
stop  all  their  trains  at  Swindon,  and  the  Court  of  Com- 
mon Law  (14  M.  &  W.  811)  held  that  •the  expression  [*755] 
of  that  intention  was  on  the  face  of  it  equivalent  to  a 
covenant.  But  it  is  entirely  unnecessary  to  enter  into  that  ques- 
tion here,  for  no  intention  is  referred  to,  and  a  covenant  cannot  be 
implied  which  the  parties  have  not  thought  fit  anywhere  to  ex- 
press. That  would,  in  my  opinion,  be  a  monstrous  stretch  of  the 
doctrine  applicable  to  such  cases. 

It  has  further  been  argued,  that  giving  the  lessees  power  to  do 
certain  acts  implies  a  covenant  on  their  part  to  do  them  ;  but  that 
is  a  complete  inversion.  The  lessee  has  secured  to  himself  certain 
advantages,  without  introducing  any  corresponding  obligation. 

The  demise  is  simply  of  the  coal,  not  of  the  surface :  [His  Lord- 
ship then  read  the  demise.]  The  argument  upon  that  is,  that  there 
is  the  fullest  possible  power  to  work  the  mine,  and  to  take  any 
lawful  means  of  raising  the  coal,  and  this,  according  to  the  decided 
authorities,  includes  the  very  power  of  working  from  other  mines 
if  the  lessee  has  them.  There  is  the  power  of  making  roads  in, 
over,  and  under,  to  carry  not  only  those  coals  which  may  be  gotten 
out  of  this  particular  mine,  but  also  the  coal  from  other  mines. 
Then  there  is  the  power  to  raise  the  coal  to  the  surface.  Then 
comes  the  power  of  pursuing  the  veins  underground,  and  of  working 
the  veins  demised  in  connection  with  other  veins,  for  the  purpose 
of  pursuing,  raising,  or  bringing  the  same  on  the  lands  demised. 

Power  is  given  to  dig  pits,  to  bring  coal  to  the  surface,  to  make 
roads,  and  carry  coal  on  the  surface,  because  the  surface  is  not 
demised,  and  the  lessee  would  be  unable  to  carry  his  coals  over  the 
estate  without  this  power ;  but  I  cannot  infer  from  that  a  negative, 


854  MINES  AND  MINERALS. 


Vo.  86. — Jagon  v.  VlTiaa,  L.  B.  6  Ch.  766,  766. 


and  that  the  lessee  is  not  to  work  the  coal  by  any  other  method. 
If  he  is  owner  of  the  neighbouring  mine,  he  may  do  what  he 
pleases,  and  no  power  was  needed  in  the  lease  to  enable  him  to 
do  so ;  but  in  order  to  do  anything  on  the  surface  which  belongs 
to  the  lessor  he  must  take  a  power.  That  power  he  accordingly 
takes,  and  I  am  asked  to  infer  that  he  is  under  an  obligation  not 
to  use  the  larger  power  which  is  given  him  by  this  lease  to  work 
by  all  lawful  means.  He  was  able  to  work  the  adjoining  mine, 
and  he  took  care  to  secure  to  himself  powers  to  carry  the  coal  he 
raised  from  that  mine,  as  well  as  the  coal  he  might  raise  from 
the  demised  mine,  over  the  surface  of  the  Cadley  estate ;  but  he 
has  entered  into  no  obligation  to  work  by  means  of  that  surface 

only. 
[*  756]       *  There  is  nothing  else  in  the  lease  which  appears  to 

concern  the  sinking  of  a  pit,  except  the  covenant  to  work 
the  coal  in  a  proper  and  workmanlike  manner.  It  cannot  be  said 
that  working  from  your  own  mine,  if  you  have  power  to  do  it,  is 
not  working  in  a  proper  and  workmanlike  manner.  No  one  can 
say  that  working  by  instroke  is  improper  2?«r  se;  and  the  founda- 
tion of  much  of  the  evidence  on  that  subject  was  that  an  intention 
must  be  implied  that  the  mines  were  not  to  be  worked  from  the 
adjoining  pit,  and  were  only  to  be  worked  from  the  lessor's  estate. 
I  was  much  pressed  with  the  clause  which  provides  that  the 
lessee  shall  give  up  the  pits  and  other  works,  so  that  the  coals 
may  be  continued  to  be  worked  by  the  lessor.  This  is  said  to 
show  that  it  is  implied  throughout  the  lease  that  pits  shall  be 
sunk,  and  here  I  make  the  same  remark  which  I  made  at  the 
beginning,  that  both  sides  most  probably  thought  that  pits  would 
be  sunk,  but  that  does  not  amount  in  my  mind  to  a  covenant  to 
make  them.  The  words  are,  "  All  pits  and  shafts  which  shall  be 
then  open."  That  implies  that  they  may  or  may  not  be  open. 
What  was  there  to  prevent  the  closing  of  the  pits  before  the 
expiration  of  the  lease  ?  —  and  if  they  are  not  open  at  the  expira- 
tion of  the  lease,  they  are  to  be  handed  over  in  that  state.  Then, 
further,  there  is  this,  that  they  are  to  be  given  up  in  such  a  con- 
dition as  that  the  works  may  be  continued.  Now,  how  can  it 
possibly  be  said  that  the  works  cannot  be  continued,  when  the 
lessor  has  got  his  own  surface  land,  and  may,  by  sinking  a  pit, 
go  down  and  work  the  coal  at  any  time  he  pleases. 

The  whole  contest  is,  whether  the  lessee  or  the  lessor  is  to  pay 


R.  C.  VOL.  XVn.]      SECT.  VIL  —  SPECIAL  RULES  AS  TO  REMEDIES.       855 
Vo.  86.  —  Jegon  v.  YMmii,  L.  R.  6  Ch.  756,  767. 

this  sum  of  X 27,000  for  a  pit  The  lessor  can  sink  his  pit,  and 
he  has  a  right  when  he  has  sunk  his  pit  to  find  all  the  works  in 
such  a  state  as  will  enable  him  to  go  on  in  the  same  manner  as 
the  previous  lessees  did.  Other  people  may  have  their  means  of 
access,  and  he  may  have  his  means  of  access.  But  whatever  they 
do  to  his  property,  they  are  to  leave  his  property  so  that  whenever 
he  takes  possession  of  it  he  may  be  able  to  work  and  to  sink  pits 
for  himself,  and  not  find  the  whole  colliery  flooded  with  water  and 
pillars  not  left,  but  find  it  in  a  proper  condition,  so  that  he  may 
go  on  with  the  works. 

Then  it  is  said  that  he  cannot  go  on  with  the  working 
of  this  *  mine  if  J  he  has  first  to  sink  the  pit,  and  that  [*  757] 
carrying  on  the  works  must  mean  that  they  are  to  be 
carried  on  just  as  unremittingly  as  they  were  before.  I  should 
not  be  inclined  to  give  much  weight  to  that  observation  as  an 
inference  for  importing  a  covenant  of  this  extremely  onerous 
nature.  I  find  that  there  is  a  power  to  the  lessee  to  remove  all 
the  machinery,  railroads,  tramroads,  ironwork,  and  woodwork; 
and  if  that  was  done,  I  apprehend  that  the  lessors  would  have 
to  build  an  engine  and  lay  down  railroads  and  tramroads,  even  if 
the  covenant  extended  to  saying  that  there  was  to  be  a  pit  How- 
ever, I  think  the  best  answer  to  that  is,  that  if  the  parties  meant 
such  a  covenant  they  have  not  expressed  it.  And  if  there  had 
been  such  an  obligation  in  the  deed,  I  apprehend  the  lessors  would 
not  have  gone  on  from  the  year  1841  down  to  the  present  time 
without  attempting  to  enforce  their  rights.  It  ought  to  have 
been  insisted  upon  at  first,  but  nothing  of  the  kind  has  been 
suggested,  and  no  attempt  has  been  made  to  force  the  lessees  to 
work  the  mines  by  outstroke  instead  of  instroke ;  this  is  a  mere 
afterthought,  in  order  to  compel  the  defendants  to  spend  £27,000 
upon  this  mine. 

Then  as  to  the  continuous  working :  It  must  be  remembered 
that  the  subject-matter  is  a  coal  mine,  and  there  are  various  pro- 
visions about  working  coal.  An  obvious  remark  upon  that  would 
be  that  where  one  person  is  taking  a  mine  and  another  person 
is  letting  a  mine,  they  both  think  the  mine  will  be  worked ;  and 
in  numerous  leases  which  have  come  before  the  Court,  there  is  a 
covenant  on  the  part  of  the  lessee  to  work  the  mines  continuously, 
and  there  are  other  provisions  of  that  kind.  But  when  that  is 
intended  it  is   stated.    A  lessee  entering  into  such  a  covenant 


856  MINES  AND  MINERALS. 


No.  86.  —  Jagon  ▼.  Vlviui,  L.  B.  6  Ol  767,  7M. 


cannot  complain  if  he  is  unable  to  fulfil  his  engagement,  but  here 
there  is  nothing  of  the  sort.  It  is  said,  that  because  the  lessee 
covenants  that  he  will  do  the  work  in  a  workmanlike  manner, 
he  has  covenanted  to  be  always  working.  But  there  are  various 
approved  modes  of  effecting  such  a  purpose.  One  is  to  take  so 
heavy  a  dead  rent  as  to  make  the  lessee  find  it  to  his  own  benefit 
to  work,  because  the  rent  must  be  paid  whether  he  works  the 
mine  or  not  Another  mode  is  to  have  an  express  covenant  that 
he  shall  continuously  work.    Another  mode  is  to  say  that  so  much 

coal  shall  be  raised  per  annum  ;  but  to  say  that  this  is  to 
[*  758]  be  implied  *  from  a  covenant  to  work  in  a  workmanlike 

manner  would  be  a  very  great  stretch  of  the  terms  actually 
employed.  If  the  parties  meant  the  lessee  to  work  continuously, 
they  ought  to  have  said  so.  It  is  true  that  there  is  no  dead  rent 
reserved  of  such  an  amount  as  to  compel  him  to  work ;  but  I  can- 
not say  there  is  anything  on  the  face  of  the  lease  to  justify  me  in 
saying  that  this  mine  was  intended  to  be  continuously  worked, 
and  I  cannot  strain  the  words  so  far  as  to  say  that  the  lessor  has 
secured  it  by  any  covenant  or  engagement  in  the  lease. 

[His  Lordship  then  expressed  his  opinion  as  to  the  mode  in 
which  the  £40  rent  was  to  be  calculated.] 

I  come  now  to  another  question,  which  is  the  question  of  the 
way-leaves.  The  Master  of  the  Bolls  gave  them,  and  there  has 
been  a  question  raised  about  the  water-leaves  and  the  air-leaves,  as 
they  are  called.  It  is  said  that  something  should  be  paid,  either 
in  respect  of  damages,  or  in  the  way  of  rent,  in  respect  of  those 
way-leaves  or  air-leaves.  It  must  be  after  the  expiration  of  the 
lease ;  there  is  nothing  at  all  said  about  any  such  leaves  in  the 
lease.  But  there  is  another  question  raised ;  and  that  is,  about 
the  damage  done ;  and  the  argument  is  put  thus :  You  have  had 
the  benefit  of  water-leaves  and  air-leaves  since  the  expiration  of 
this  lease,  and  for  those  privileges  you  must  compensate  us,  and 
the  damage  done  to  the  pit  can  be  best  measured  in  that  way. 
Now,  I  apprehend,  as  to  all  that  was  done  during  the  lease,  there 
is  no  question  at  all.  During  the  continuance  of  the  lease,  the 
lessee  had  a  right  to  make  any  conduits  he  pleased  for  the  con- 
veyance of  water  over  the  demised  premises.  After  the  lease  he 
would  not  be  bound  to  put  any  barrier  between  his  own  mine  and 
those  mines  which  were  demised  to  him,  in  order  to  prevent  the 
water  running  by  the  action  of  gravitation  from  his  own  mine  into 


R.  C.  VOL.  XVIL]      sect.  VIL  —  SPECIAL  RULES  AS  TO  REMEDIES.       867 
Vo.  86.  —  Jegon  ▼.  yMMOLj  L.  B.  6  Gh.  768,  769. 

hia  neighbour's  mine ;  and  there  is  no  doubt  the  waters  would  find 
their  way  into  this  channel  which  he  has  made,  and  which  it  was 
perfectly  lawful  for  him  to  make.  I  do  not  find  he  made  any 
channel  in  his  mine  during  the  term  of  the  demise,  in  order  that 
the  water  might  pass  through  it  What  he  did  was  —  he  cut 
drifts  and  ways;  and  the  only  evidence  that  I  have  before  me 
on  the  subject,  as  far  as  there  is  auy  evidence  at  all,  is,  that  by 
the  simple  force  of  gravitation  the  water  in  these  drifts 
has  found  its  way  down.  If  the  plaintififs  *  are  so  minded,  [*  759) 
they  may  stop  up  those  channels,  or  do  anything  they 
please  with  them.  They  can  prevent  their  being  in  any  way 
used ;  but  the  defendants,  not  being  obliged  to  use  them,  are  not 
to  pay,  because  those  channels,  so  long  as  they  exist,  bring  the 
water  down  to  other  mines  of  the  defendants  lying  to  the  deep> 
whence  they  pump  the  water  back. 

[His  Lordship  then  expressed  his  opinion  that  the  pumping  by 
the  defendants  did  not  increase  the  flow  of  water,  and  that  the 
passage  of  air  was  like  that  of  water.] 

If  the  plaintiffs  are  so  minded,  they  can  at  any  time  deprive  the 
defendants  of  all  benefit  from  the  passage  of  air  and  water.  They 
can  build  a  wall  as  a  barrier  between  their  mine  and  the  defend- 
ants* mine ;  but  the  defendants  are  not  bound  to  build  any  wall 
at  all ;  they  are  simply  enjoying  that  which  is  given  them  by  the 
mere  circumstances  of  a  series,  of  lawful  acts  which  have  been 
done,  and  which  (the  lease  now  being  over)  the  plaintiffs  can  put 
an  end  to  if  they  like.  It  gives  no  right  to  the  plaintiffs  to  recover 
compensation. 

On  the  other  points  I  reserve  my  judgment. 

Jan.  25.  Lord  Hatherley,  L.  C,  said  that,  under  the  circum- 
stances of  the  case,  he  should  not  interfere  with  the  decree  of  the 
Master  of  the  Bolls  as  to  the  costs,  and  that  he  thought  that  as 
no  special  damage  was  shown  to  have  been  caused  by  the  flowing 
of  water  through  the  Cadley  pit  occasioned  by  improper  working 
during  the  continuance  of  the  lease,  but  only  such  as  would  occur 
from  the  ordinary  working,  nothing  was  to  be  paid  on  that 
account  He  then  said :  But  I  think  the  question  is  different  as  to 
what  may  have  taken  place  in  the  workings  since  the  25th  of 
March,  1861,  because  from  that  time  the  defendants  were  not 
entitled  to  work  the  mine  at  all.  There  is  some  evidence  of 
damage  from  the  mode  of  working  the  mine  since  that  time,  though 


858  MINES   AND  MINERALS. 


No.  86.  ^  logon  ▼.  YiTian,  L.  B.  6  Gh.  769,  760. 


not  very  strong,  yet  suflScient  for  me  to  say  that  there  ought  to  be 
an  inquiry  what  is  proper  to  be  allowed  to  the  plaintiffs  as  com- 
pensation for  such  damage.  [His  Lordship  then  gave 
[*760]  directions  as  to  *the  £40  rent,  and  continued:]  Now 
I  approach  the  question  of  the  allowance  to  be  made  for 
the  coal  worked  wrongfully  after  the  expiration  of  the  lease,  the 
value  of  which  is  to  be  accounted  for,  subject  to  deductions  — 
one  deduction  being,  according  to  all  the  authorities,  for  the  haul- 
age and  bringing  the  coal  from  the  bottom  of  the  pit  up  to  the  pit's 
mouth.  But  the  question  now  is,  whether  or  not  there  is  also  to 
be  allowed  to  the  defendants  that  which  the  Master  of  the  Bolls 
has  allowed,  the  cost  of  winning  and  getting  —  that  is  to  say, 
detaching  the  coal  from  the  solid  rock,  and  converting  it  into  what 
is  by  the  authorities  held  to  be  a  chattel. 

I  must  say  that  the  doctrine  of  the  Courts  of  Law  on  this  sub- 
ject does  not  seem  to  me,  if  I  may  venture  to  say  so,  to  be  in  a  very 
satisfactory  state.  The  Courts  of  Law  seem  clearly  to  have  decided, 
in  Martin  v.  Porter,  5  M.  &  W.  351  (p.  841,  aitU) ;  that  the  hewing 
was  not  to  be  allowed  for :  on  this  principle,  that  the  defendant 
being  a  trespasser,  and  having  converted  into  a  chattel  that  which 
was  part  of  the  freehold,  the  freeholder  or  reversioner  was  entitled 
to  the  chattel  so  converted  at  the  moment  it  became  a  chattel ; 
and  as  it  became  a  chattel  at  the  bottom  of  the  pit,  the  Courts  of 
Law  did  not  allow  for  the  process  which  converted  it  into  a  chattel, 
but  they  did  allow  for  the  expense  of  afterwards  bringing  it  up 
from  the  pit,  that  being  the  value  which  they  thought  to  be  the 
measure  of  the  damages  to  which  the  plaintiff  was  entitled. 

A  part  of  the  reasoning  in  that  case  and  in  some  of  the  other 
cases  was,  that  the  owner  may  claim  a  chattel  wherever  he  finds  it. 
If  that  were  so,  he  might  claim  the  coal  at  the  top  of  the  pit  with- 
out making  any  allowance  at  alL  But  that  does  not  seem  to  be 
the  principle  which  has  been  acted  upon.  Then  there  was  another 
principle  suggested  by  Mr.  Justice  Coleridge  (3  Q.  B.  279) ;  that 
the  proper  value  was  what  the  owner  had  lost,  which  was  the 
value  of  the  thing  as  it  existed  unhewn  in  the  pit,  because  it  was 
in  that  state  when  he  lost  it,  and  that  was  what  he  was  deprived 
of.  However,  the  learned  Judge  deferred  to  the  decision  in 
Martin  v.  Porter,  and  submitted  to  that  rule.  Now  it  strikes  me 
as  a  strong  measure  to  give  a  man,  instead  of  the  value  of 
his  coal,  the  great  advantage  of  having  it  worked  without  any  ex- 


3L  C.  VOL.  XVII.]      SECT,  Vn.  —  SPECIAL  RULES  AS  TO  REMEDIES.       859 
Vo.  86. — Jegon  v.  Yiviaii,  L.  A.  6  Oh.  761,  768. 

pense  for  *  getting  and  hewing.  Suppose  the  mine  worked  [*  761] 
out,  then  what  he  has  lost  is  the  coal,  but  this  rule  would 
give  him  besides  all  the  cost  of  getting  and  hewing.  It  seems  a 
rough-and-ready  mode  of  doing  justice,  though  the  remark  that  a 
wilful  trepasser  ought  to  be  punished  is  worthy  of  observation; 
and  further,  as  was  said  by  one  of  the  Judges,  when  you  deprive 
a  man  of  his  property  in  this  way,  you  deprive  him  of  the  man- 
agement and  control  of  his  own  property,  and  he  might  have  made 
a  better  bargain.  All  that,  however,  is  of  course  speculative,  and 
it  seems  to  me  that  the  Judges  have  founded  their  decisions  upon 
the  ground  of  wilful  trespass,  as  in  Martin  v.  Forter,  5  M.  &  W. 
351  (p.  841,  ante^ ;  where  Mr.  Baron  Parke  expresses  himself 
pleased  with  the  rule  as  laid  down.  But  the  same  learned  Baron, 
in  Wood  V.  Moreivood,  3  Q.  B.  440,  n,  held  that,  where  there  was  a 
bond  fide  claim  of  title,  the  trespasser  would  be  allowed  for  hewing 
as  well  as  for  the  other  expenses.  That  was,  no  doubt,  a  nisi  prius 
decision,  but  it  was  adhered  to  by  the  learned  Judge.  I  cannot, 
however,  say  that  this  doctrine  is  very  satisfactory ;  and,  no  doubt, 
it  is  open  to  Mr.  Jessel's  remark,  that  we  cannot  dive  into  a  man's 
mind  and  know  whether  he  thinks  the  title  to  be  good  or  bad ; 
and  I  doubt  if  we  can  say  that  the  other  Judges  agreed  in  all 
these  views. 

In  that  position  of  the  legal  authorities  I  do  not  feel  disposed  to 
introduce  in  equity  a  mode  of  assessing  damages  according  to  a 
stricter  rule  of  damages  than  that  which  has  been  applied  at  law. 
This  Court  never  allows  a  man  to  make  profit  by  a  wrong,  but  by 
Lord  Cairns'  Act  the  Court  has  the  power  of  assessing  damages, 
and  therefore  it  is  fairly  argued  here  that  this  is  a  case  in  which 
damages  ought  to  be  reckoned  according  to  the  rule  in  Martin  v. 
Porter.  Now,  no  doubt,  these  defendants  were  told  over  and  over 
again  that  the  plaintiffs  disputed  their  title,  but  they  held  under  a 
lease  which  professed  to  give  a  title  if  the  lessors  had  power  so  to 
do.  The  working  went  on  on  that  assumption,  bond  fide,  as  it  seems 
to  me,  and  after  long  litigation  the  House  of  Lords  held  that  the 
lease  was  not  valid,  and  therefore  the  defendants  were  wrongdoers 
db  initio,  [His  Lordship  then  commented  on  the  proceedings  in 
Ernest  v.  Vivian,  and  on  the  proceedings  at  law,  as  showing  that 
the  case  of  the  defendants  was  not  flimsy,  but  that  they  were 
acting  bond  fide."] 

*  I  think,  looking  to  what  has  been  determined  at  law,  [*  762] 


860  MINES  AND   MINERALS. 

No.  86.  — Jegon  ▼.  Yiviaa,  L.  B.  6  C9l   708. 

and  looking  to  what  the  course  of  this  Court  was  until  Lord 
Cairns*  Act  was  passed,  I  do  not  feel  called  upon  to  give,  in  the 
nature  of  damages,  that  which  in  accordance  with  the  decisions 
would  apparently  not  have  been  given  at  law  by  way  of  damages. 
I  think  that  the  milder  rule  of  law  is  certainly  that  which  ought 
to  guide  this  Court,  subject  to  any  case  made  of  a  special  character 
which  would  induce  the  Court  to  swerve  from  it :  otherwise,  on  the 
one  hand,  a  trespass  might  be  committed  with  impunity  if  the  rule 
in  poenam  were  not  insisted  upon ;  so,  on  the  other  hand,  persons 
might  stand  by  and  see  their  coal  worked,  being  spared  the 
expense  of  winning  and  getting  it. 

These  plaintiffs  are  clearly  entitled  to  be  recompensed  for  any 
damage  done  beyond  the  actual  value  of  the  coal  in  the  course  of 
their  working,  and  I  ought  to  observe  that  there  is  a  good  deal  of 
difl&culty  in  knowing  how  exact  justice  can  be  done  in  such  a  case, 
as  the  prevention  of  the  plaintiffs  from  themselves  letting  their 
coal  is  in  itself  a  serious  inconvenience  and  injury ;  and  the  only 
remark  I  have  to  make  on  that  point  is,  that  the  plaintiffs  have 
themselves  been  dilatory  in  their  legal  proceedings,  though  they 
have  given  abundance  of  notices  to  the  defendants.  The  plaintiffs 
now  get  the  whole  value  of  the  coal  dug,  and  the  coal  not  dug 
remains  for  them,  subject,  of  course,  to  the  question  how  far  it 
has  been  damaged. 

His  Lordship  then  said  that  the  variations  in  the  decree  did  not 
make  any  serious  difference  in  the  matter  of  the  costs  of  the  suit, 
as  to  which  he  agreed  with  the  Master  of  the  Bolls,  the  plaintiffs 
having  been  partly  right  and  partly  wrong.  He  gave  no  costs  of 
the  appeal. 

Minutes :  —  Vary  decree  of  the  Master  of  the  Rolls. 

Direct  an  account  of  what  is  payable  for  rent  and  royalties 
under  the  lease,  and  in  taking  that  account  the  48,  per  wey,  pay- 
able after  the  first  two  hundred  weys,  be  calculated  in  each  year, 
subject  to  deduction  of  the  said  two  hundred  weys.  An  account 
of  coal  and  mineral  got  from  the  mines  since  the  25th  of  March, 
1861,  and  of  the  value  thereof,  the  defendants  to  be  charged  with 
the  fair  value  of  such  coal  and  other  minerals  at  the  same  rate  as 
if  the  mines  had  been  purchased  by  the  defendants  at  the  fair 
market  value  of  the  district.  An  inquiry  as  to  damages  beyond 
the  removal  of  the  coal  occasioned  by  working  the  mines  since  the 
25th  of  March,  1861,  and  what  should  be  allowed  as  compensation. 


E-  C.  VOL.  XVII.]      SECT.  VIL  —  SPECIAL  RULES  AS  TO  REMEDIES.       861 


Ho.  87.  ~  Job  V.  Pottoft,  L.  B.  90  Bq.  M. 


An  inquiry  of  what  ought  *  to  be  paid  by  way  of  way-  [*  763] 
leave  for  the  passage  of  coal  through  the  mines  since  the 
25th  of  March,  1861.    Dismiss  so  much  of  the  bill  as  asks  for 
damages  for  not  sinking  a  pit    No  costs  of  the  appeal. 

Job  V.  Potton. 

L.  B.  20  £q.  84-99  (s.  G.  44  L.  J.  Ch.  262 ;  32  L.  T.  110;  28  W.  B.  588). 

CaaA  Mine,  —  Tenants  in  Common,  —  lAcenae  by  two  only  out  of  three  Co-  [84] 
tenants.  —  Bights  of  third  Co-tenant  —  Acquiescence.  —  Costs. 

It  is  not  destructive  waste  for  a  tenant  in  common  of  a  coal  mine  to  get,  or  to 
license  another  to  get,  the  coals,  he,  the  working  tenant,  not  appropriating  to 
himself  more  than  his  share  of  the  proceeds. 

The  plaintiff,  a  tenant  in  common  of  a  coal  mine,  had  notice  of  a  negotia- 
tion, which  was  followed  by  a  lease  for  three  years  (in  which  he  did  not  join)  by 
his  two  co-tenants,  dated  in  December,  1865,  of  two  undivided  thirds  of  the  coal 
with  license  to  work  the  coal.  Under  this  license  some  coal,  but  considerably 
less  than  two- thirds  of  the  whole,  was  raised,  and  one-third  of  the  royalty  was 
kept  by  the  licensee  for  the  plaintiff.  A  negotiation  for  a  further  license  was  on 
foot,  when,  in  October,  1872,  the  plaintiff  filed  the  bill  against  his  co-tenants 
and  the  licensee,  praying  for  an  inquiry  as  to  the  value  of  the  coals  raised;  and  an 
account  against  all  the  defendants  as  trespassers ;  for  an  injunction  and  receiver; 
and  for  damages. 

Held,  that  the  working  was  not  a  trespass ;  and  the  plaintiff  electing  to  dis- 
miss the  bill  with  costs  against  his  co-tenants,  decree,  without  costs,  against  the 
licensee  for  an  account  of  the  value  at  the  pit's  mouth  of  the  coal  raised,  less 
•costs  of  getting  and  raising,  and  for  payment  of  one-third  to  plaintiff. 

Cause. 

In  the  year  1865  an  estate  called  the  Allsop  Estate,  at  Bagillt, 
Flintshire,  consisting  of  two  separate  parts,  containing  respectively 
€a.  3r.  5p.  and  1a.  3r.  31p.,  was  vested  in  the  plaintiff,  Alfred 
Mortimer  Job,  and  the  defendants,  Maria  Potton,  widow,  and  John 
Marriott  and  Caroline  Eliza  his  wife,  in  three  equal  shares  as 
tenants  in  common  in  fee,  Mr.  Marriott  being  seised  in  right  of  his 
wife. 

The  estate,  which  had  coal  under  it,  was  surrounded  by  a  colliery 
called  the  Wren  Colliery,  being  then  and  theretofore  held  and 
worked  by  another  defendant,  David  Jones,  to  such  an  extent  as 
to  preclude  the  getting  of  the  coal  by  any  one  except  Jones.  In 
1865  the  Wren  Colliery  workings  approached  the  Allsop  estate, 
and  Mr.  Potton  and  Mr.  and  Mrs.  Marriott  were  desirous  of  mak- 


862  MINES  AND  MINEBALS. 


No.  87.  —  Job  V.  Potton,  L.  B.  90  Bq.  84,  86. 


ing  arrangements  with  Jones  for  working  the  coaL  Jones  offered 
to  give  a  royalty  on  the  scale  usual  in  the  district,  subject  to  a 
way-leave  of  2d.  a  ton ;  and  on  the  9th  of  March,  1865,  Thomas 
Roberts,  a  mineral  surveyor,  acting  as  the  agent  of  Mrs. 
[*  85]  Potton  and  the  Marriotts,  *  wrote  to  Jones  to  say  that  the 
owners  of  the  land  wished  him  to  "  go  on  working,"  as  they 
were  willing  to  take  the  same  as  other  landowners  got,  and  that 
they  were  preparing  an  agreement  for  that  purpose. 

On  the  18th  of  Mai-ch  the  defendant  Jones  wrote  to  the  plain- 
tiff, saying  he  was  in  a  position  to  work  one  of  the  seams  of  coal 
in  a  portion  of  the  land,  and  asking  whether  he,  the  plaintiff, 
would  allow  him  to  do  so,  and  upon  what  terms ;  to  which  the 
plaintiff  replied  on  the  20th  of  March  as  follows :  "  Mrs,  Potton 
applied  to  me  for  my  consent  to  work  the  coal.  I  wrote  her  I 
would  do  so,  in  consideration  of  her  giving  me  an  order  to  receive 
the  amoimt  of  her  share  of  royalty,  to  go  to  pay  the  sum  of  £100 
and  interest  borrowed  by  her  on  deposit  of  her  deeds  some  years 
since.    She  does  not  reply." 

On  the  21st  of  March,  1865,  Roberts  wrote  to  the  plaintiff  as 
follows: — "I  have  been  asked  by  Mrs.  Potton  and  Mrs.  Marriott 
to  superintend  their  share  of  the  royalty  for  coals  at  Bagillt,  as  I 
superintend  for  Dr.  Richardson  and  P.  P.  Pennant,  Esq.,  in  the 
same  work  ;  and  if  you  will  authorize  me  to  look  to  your  interest, 
I  shall  feel  thankful.  Their  terms  on  royalty  are  25.  6d.  per 
colliers'  ton,  or  the  ninth  part :  it  comes  to  about  the  same.  Mrs. 
Potton  and  Mrs.  Marriott  have  agreed  to  2s.  6d.  per  colliers'  ton. 
Please  come  to  some  agreement  as  soon  as  possible." 

On  the  24th  of  October,  the  plaintiff  wrote  to  Jones  to  say  he 
had  received  no  reply  from  Mrs.  Potton,  and  that,  should  he  suc- 
ceed in  bringing  her  to  her  senses,  he  would  immediately  write 
and  let  him  (Jones)  know. 

On  the  15th  of  December,  1865,  an  agreement  was  made  by  the 
defendants  Mrs.  Potton  and  the  Marriotts,  to  let  two  undivided 
third  parts  of  the  coals  under  the  Allsop  estate  to  the  defendant 
Jones  for  three  years  from  the  15th  of  December,  1865,  with  full 
powers  of  working  the  same,  and  also  the  option  of  renewing  the 
agreement  for  the  term  of  ten  years  from  the  25th  of  December, 
1868. 

The  defendant  Jones  said  that  under  this  agreement  he  drove 
his  level  through  a  small  portion  of  the  Allsop  estate,  and  during 


E.  C.  VOL.  XVIL]      sect.  VU.  —  SPECIAL  RULES  AS  TO  REMEDIES.       863 
Vo.  87.  —Job  V.  Pottoo,  L.  A.  90  Bq.  86,  86. 

about  two  years  worked  one  of  the  seams  under  the  estate  to  a 
small  extent.  This  seam  had  not  been  previously  worked,  but 
other  seams  had  been.  The  total  amount  of  the  royalty,  as 
•agreed,  upon  the  coals  which  Jones  worked  during  the  [*86] 
three  years  was  £98  55.  3d.,  out  of  which  he  reserved  for 
the  plaintiff,  whenever  he  should  claim  it,  the  sum  of  £32  15«.  Id,, 
being  one-third  of  the  royalty  on  the  coal  got,  and  he  also  left 
more  than  one-third  of  the  coal  ungotten. 

After  the  21st  of  April,  1868,  he  ceased  working. 

On  the  2nd  of  May,  1868,  the  plaintiff  wrote  to  the  defendant 
Jones  as  follows :  ''  I  am  informed  that  you,  with  others,  are 
taking  the  coal  from  under  the  land  of  the  estate  called  and  known 
as  the  Pottons'  estate  in  Grodly's  Lane,  Bagillt,  in  which  estate  I 
have  an  interest  of  survivorship ;  this  being  done  by  you  without  my 
knowledge  or  consent,  I  give  you  notice  I  repudiate  all  such  work- 
ings, and  ask  you  for  a  statement  of  what  you  have  taken,  and  by 
what  authority  you  have  so  taken  it,  so  far  as  you  have  gone ;  and 
so  far  as  you  may  go,  I  shall  deem  it  a  trespass  for  which  I  shall 
hold  you  responsible  without  my  consent  first  had  and  obtained." 

In  answer,  the  defendant  Jones  wrote  to  the  plaintiff  on  the  5th 
of  May,  1868,  stating  the  agreement  of  the  15th  of  December, 
1865,  and  adding, "  The  sums  to  which  they "  (Mrs.  Potton  and 
Mrs.  Marriott)  "  have  been  entitled  under  this  agreement,  as  per 
accounts  rendered  to  Mr.  Soberts,  are  "  [then  followed  a  statement 
showing  Mrs.  Potton's  share  to  be  £27  155.  4d.].  **  A  third  part 
of  the  coal  has  been  left  in  the  ground  intact  for  you,  which  I  am 
in  a  position  to  win  if  desired,  but  if  you  prefer  it  you  can  share  in 
the  royalty  to  which  Mrs.  Potton  and  Mrs.  Marriott  have  hitherto 
been  entitled,  according  me  permission  to  win  all  the  coal^  and 
taking  your  third  part  in  future.  I  am  animated  with  the  desire 
of  acting  in  a  thoroughly  impartial  way  to  each  of  the  owners.  .  .  . 
If  the  coal  be  not  won  now  it  will  probably  not  be  won  at  all,  as  I 
am  stripping  all  the  coals  surrounding  the  land,  and  it  will  never 
pay  any  one  to  sink  pits,  &c.,  for  the  purpose  of  winning  from 
estates  isolated  as  yours  are,  and  so  small." 

On  the  6th  of  May  the  plaintiff  wrote  to  the  defendant  Jones 
saying  he  repudiated  in  the  most  positive  manner  being  a  consent- 
ing party  to  his  taking  coal  from  under  the  estate ;  and  a  corre- 
spondence followed,  in  the  course  of  which  the  defendant  Jones 
offered  to  send  a  return  of  the  coal  got,  to  allow  plaintiffs  sur- 


864  MINES  AND   MINJUUL& 

No.  87.  —  Job  V.  Pottan,  L.  B.  90  Eq.  86,  87. 

veyor  to  make  a  survey  of  the  workings,  and  at  once  to 
[*  87]  hand  *  over  a  sum  equivalent  to  that  paid  to  Mrs.  Potton ; 
and  stated  that  in  compliance  with  plaintiffs  request,  he 
had  ceased  working. 

On  the  4th  of  May,  1872,  the  plaintiff  commenced  an  action 
against  the  defendant  Jones  in  the  Lord  Mayor's  Court  for  £850 
and  costs,  which  action  the  defendant  Jones  caused  to  be  removed 
into  the  Court  of  Exchequer,  and  entered  an  appearance  therein. 

On  the  15th  of  October,  1872,  the  bill  was  filed  by  Job  against 
Mrs.  Potton,  Mr.  and  Mrs.  Marriott,  and  David  Jones,  stating  that 
the  agreement  of  the  15th  of  December,  1865,  was  made  without 
the  plaintiff's  consent  or  knowledge ;  and  alleging  that  the  plain- 
tiff did  not  discover  the  fact  that  such  agreement  had  been  made, 
or  that  the  defendant  Jones  was  getting  the  coals  until  the  month 
of  June,  1868 ;  that  the  plaintiff  remonstrated,  and  that  n^otia- 
tions  for  a  compromise  of  the  plaintiffs  claim  failed;  that  after 
three  years  had  expired  the  plaintiff  supposed  that  the  defendant 
Jones  would  not  exercise  his  power  of  extending  his  term  of  work- 
ing, and  would  not  continue  the  working,  but  that  in  May,  1872, 
he  paid  a  visit  to  the  estate  and  discovered  that  the  defendant 
Jones  was  just  completing  a  new  arrangement  with  the  other  de- 
fendants for  a  letting  of  the  mines  to  him  for  a  further  term  of 
ten  years ;  that  injury  had  been  done  to  the  surface,  and  a  cottage 
and  other  buildings  thereon  sunk  and  cracked ;  and  that  the  acts 
committed  by  the  defendants  amounted  to  destructive  waste. 

The  bill  prayed  for  an  inquiry  as  to  the  value  of  the  coals 
gotten  by  the  defendant  Jones  under  the  hereditaments,  no  deduc- 
tion being  allowed  for  the  cost  of  bringing  them  to  the  surface, 
and  that  a  sum  equal  to  one-third  of  such  value  be  ordered  to  be 
paid  to  the  plaintiff ;  further,  for  an  account  of  the  quantity  of  the 
•coals  left  un worked  (excluding  the  quantity  which  would  be  left 
in  a  proper  course  of  mining),  and  of  the  value  of  such  quantity, 
and  that  a  sum  equal  to  one-third  of  such  value  might  be  paid  by 
the  defendants,  or  some  of  them,  to  the  plaintiff,  the  plaintiff 
undertaking  to  give  to  each  of  the  other  defendants  her  or  his  share 
in  the  coals  left ;  and  for  an  injunction,  a  receiver,  and  damages. 

The  defendant  Jones,  by  his  answer,  said  the  value  of  the  coal 
under  the  hereditaments  was,  in  his  judgment,  about  £450.  He 
helieved  the  plaintiff  was  informed  long  before  June,  1868,  by  Mr. 
Boberts,  that  the  defendant  was  working  the  coaL     Since  the  ex- 


B.  c.  vol*  xvil]    sect.  vn.  —  special  rules  as  to  remedies.     865 

Ho.  S7.  —Job  ▼.  FottOB,  L.  B.  90  Bq.  87,  88. 

piration  of  the  three  years  he  had  been  in  treaty  for  a  fresh 
term  *  of  three  years,  in  the  expectation  that  the  plaintiff  [*  88] 
would  concur  in  it,  but  as  he  did  not  the  treaty  fell 
through.  It  was  not  true  that  great,  or  in  the  result  any,  injury 
had  been  done  to  the  surface  by  his  workings.  The  injury  to  the 
cottages  was  mainly  owing  to  want  of  repair;  and  he  had  re- 
paired the  cottages,  and  had  put  them  into  better  condition  than 
before.  The  acts  of  the  other  defendants,  in  giving  him  a  license, 
and  his  own  acts  under  that  license,  did  not  amount  to  destructive 
waste,  but  were  the  only  means  by  which  the  coal  could  be  saved. 
He  had  never  intended,  since  he  received  the  plaintiff's  notice  in 
May,  1868,  to  continue  the  working,  whether  he  might  be  entitled 
to  do  so  or  not  Finally  he  pleaded  the  Statute  of  Limitations, 
and  acquiescence,  delay,  and  laches  on  the  part  of  the  plaintiff. 

In  his  affidavit  in  support  of  the  bill  the  plaintiff  said  that  he 
was  an  equitable  mortgagee  of  Mrs.  Potton's  share  for  £100.  The 
coals  under  the  estate  were,  before  the  wrongful  acts  of  the  de- 
fendant, of  the  value  of  £10,000,  and  he  now  believed  them  to  be 
of  the  value  of  £6000  at  least.  He  had  read  the  statement  in  the 
answer  of  Jones  that  he  and  Mrs.  Potton  and  a  Mr.  Boberts  in- 
formed him  of  the  negotiations  for  such  agreement,  and  that  such 
statement  was  "  wholly  untrue." 

Mr.  Vavasor  Powell,  collier,  one  of  the  plaintiff*s  witnesses, 
denied  that  the  coal  could  only  be  gotten  at  a  profit  in  connection 
with  the  Wern  Colliery.  As  to  the  part  said  to  contain  6a.  3r.  5  p., 
the  coal  could  be  got  to  advantage  by  independent  workings.  In 
his  judgment  the  coal,  being  seven  seams,  under  the  estate  was 
then  worth  £6420,  and  was  at  one  time  worth  £10,000. 

There  was  conflicting  evidence  on  the  other  side  as  to  the  value 
of  the  coals,  and  as  to  the  amount  and  cause  of  damage  to  the 
buildings. 

The  letters  showed  a  negotiation  in  1871  between  the  plaintiff 
and  Roberts  for  the  sale  of  the  plaintiffs  interest,  which  fell 
through.  In  the  course  of  this  Mr.  Job,  in  a  letter  dated  the  14th 
of  October,  1871,  said  he  would  accept  an  offer  of  £180  for  his 
share  in  the  estate,  in  consideration  of  Mrs.  Potton's  obligation  to 
him  being  settled  at  the  same  time.  He  further  offered,  on  the 
14th  of  November,  1871,  to  transfer  his  mortgage  to  Roberts  for 
£130,  an  offer  which  not  being  accepted  at  the  time  he  afterwards 
raised  to  £160. 
VOL.  xvii.  —  56 


866  MINES  AND  MINERALS. 


Ho.  87.  —Job  ▼.  Fotton,  L.  B.  SO  Eq.  89-98. 


[*  89]       *After  the  institution  of  the  suit,  namely,  on  the  30th  of 
December,  1874,  Mrs.  Potton  died,  and  the  suit  was  revived 
against  her  representative.    Mrs.  Marriott  had  also  died,  and  the 
suit  had  been  revived  against  her  heir-at-law. 

It  was  stated  at  the  bar  that  since  the  institution  of  the  suit  a 
decree  for  the  partition  of  the  estate  had  been  made  in  another 
suit  in  this  branch  of  the  Court,  and  that  a  sale  was  in  progress. 

Mr.  W.  Pearson,  Q.  C,  and  Mr.  Simmonds,  for  the  plaintiff. 
[90]      Mr.  Kay,  Q.  C,  and  Mr.  Alexander,  for  the  representative 
of  Mrs.  Potton. 

Mr.  Williamson,  for  John  Marriott. 

Mr.  Hervey,  for  the  heir  of  Mrs.  Marriott. 
[*  91]       *  Mr.  Little,  Q.  C,  and  Mr.  Hemming,  for  the  defendant 

Jones. 
[  92]      Mr.  Pearson,  in  reply. 
[  93]        Sir  James  Bacon,  V.  C.  :  — 

This  is  at  least  a  very  remarkable  suit,  whether  the 
nature  of  it  is  considered,  or  the  subject  to  which  it  relates.  It 
is  a  suit  in  the  Court  of  Chancery.  I  have  nothing  to  do  with  the 
common-law  doctrine,  so  much  insisted  upon  by  Mr.  Pearson,  not 
only  from  the  nature  of  the  suit,  but  because  the  suit  has  been 
brought  in  this  Court,  the  plaintiff  having  deliberately  elected  to 
prefer  the  remedy  which  he  can  get  here  to  any  right  or  remedy  he 
might  have  at  law.  I  have,  therefore,  only  to  consider  the  facts 
as  far  as  they  are  clearly  in  evidence,  and  to  consider  what  are  the 
rights  of  tenants  in  common  in  a  mine. 

Now,  no  authority  has  been  referred  to,  and  I  believe  none  can  be 
found,  to  say  that  the  rights  of  tenants  in  common  in  a  mine  are  not 
as  extensive  as  can  be  suggested  for  each  of  those  tenants  to  do  what 
he  wills  with  the  undivided  property,  provided  always  that  he  does 
not  take  more  than  his  share.  The  statute  of  Anne  (4  Anne,  c.  16, 
s.  27)  has  recognised  that  principle,  and  every  decision  which  I 
know  of  has  adopted  it  as  a  principle.  What  difference  is  there  be- 
tween a  tree  growing,  which  the  Court  refuses  to  prevent  a  tenant 
in  common  from  cutting  at  his  pleasure,  although  it  is  a  part  of 
the  inheritance,  and  a  tree  which  by  some  operation  of  nature  has 
become  carbonised  and  turned  into  cannel  coal  ?  How  is  a  tenant 
in  common  to  enjoy  his  share  (if  that  is  the  right  expression)  of 
the  common  property  in  a  coal  mine,  if  he  is  not  at  liberty  to  dig 
and  carry  away  the  coal  ?    The  only  restriction  upon  him  is  that 


B.  C.  VOL.  XVIL]      sect.  VIL  —  SPECIAL  RULES  AS  TO  REMEDIES.       867 
Ho.  87.  — Job  ▼.  PotUm,  L.  B.  SO  Bq.  98,  94. 

he  must  not  appropriate  to  himself  more  than  his  share.  It  is 
not  suggested  here  that  the  original  defendants,  Mrs.  Potton  and 
Mr.  and  Mrs.  Marriott,  who  were  then  the  co-owners,  have  taken 
any  more  than  their  respective  shares.  There  is  no  suggestion 
of  it  anywhere.  The  document  which  has  been  referred  to,  and 
which  is  called  their  license  to  work,  carefully  restricts  the  license 
which  they  give  within  the  bounds  of  their  own  rights,  and  there 
is  no  difference  in  that  respect  between  that  which  Mr.  Jones  has 
done  under  their  license,  and  that  which  they,  without  license 
might  have  done  by  their  own  hands.  The  principle  of  the  case 
is  therefore,  perfectly  clear,  and  is  not  disputed.  The 
plaintiff  is  *  tenant  in  common  with  two  other  persons  in  [*  94] 
a  mine,  the  shares  in  which  are  undivided.  They  have  only 
exercised  their  rights,  and  they  have  left  him,  for  anything  that  I 
can  see,  to  exercise  his.  What  he  complains  of  is,  that,  under  their 
leave  and  license,  a  certain  quantity  of  coal  has  been  taken  away 
in  which,  to  the  extent  of  a  third,  he  is  interested ;  and  that  seems 
to  be  so.  But  that  is  the  whole  of  his  case,  —  that  is,  the  whole  of 
the  right  to  relief  which  the  plaintiff  can  insist  upoD,  —  and  that 
right  to  relief  must  be  governed  by  the  facts  in  this  case.  The 
cause  has  been  brought  on  for  hearing  after  a  decree  for  partition 
has  been  made  in  another  suit,  from  the  day  of  the  date  of  which 
decree  it  must  be  considered  that  the  estate  has  been  divided  into 
three  parts,  one  of  which  belongs  to  the  plaintiff.  Wliat  hearing 
therefore,  those  common-law  cases,  on  which  Mr.  Pearson  has  so 
strongly  insisted,  can  have  on  the  equitable  relief  to  which  the 
plaintiff  is  entitled  in  this  Court,  I  am  unable  to  perceive,  in  any 
degree. 

The  case  of  Wilkinson  v.  Haygarth,  12  Q.  B.  837,  which  has  been 
referred  to,  touches  the  question  of  leave  and  license,  and  the  sublime 
mysteries  of  special  pleading,  the  days  of  which  are  numbered.  In 
the  decision  of  the  Court  there,  it  was  held  that  the  plea  was  a 
bad  plea,  because  the  plea  was  of  the  leave. and  license  of  only  two 
persons,  when  the  leave  and  license  of  more  than  two,  perhaps  of 
three  of  them,  was  necessary  in  order  to  justify  the  plea.  That  was 
the  whole  decision  in  that  case:  it  decides  nothing  else  in  the 
world,  and  does  not  touch  the  substance  of  this  case,  nor  even  the 
substance  of  that  case  in  any  degree ;  but  it  decided,  as  a  matter 
of  special  pleading,  that  that  plea  was  a  bad  plea.  This  myste- 
rious doctrine  of  leave  and  license  has  been  very  often  thrust  upon 


868  MINES  AND  MINEBAL& 


Ho.  87.— Job ▼.  Potton,  L.  B.  90  Eq.  M,  96. 


this  Court  upon  the  authority  of  cases  ia  the  Courts  of  common 
law,  of  which  I  speak  with  all  possible  respect,  not  with  less 
respect  than  I  do  of  the  case  to  which  the  late  Lord  Justice 
Knight  Bruce  was  not  unfrequently  in  the  habit  of  referring  when 
he  was  invited  to  consider  the  question  of  leave  and  license,  and 
the  imperfections  which  might  attend  it  He  quoted  a  case,  the 
name  of  which  I  do  not  know,  which  he  often  cited  either  from  the 
Year  Books,  or  some  not  very  much  less  remote  reports,  a  case 
of  a  young  woman  who  by  her  next  friend  sued  a  barber  for  having 

cut  her  hair.  He  was  to  cut  her  hair,  and  he  had  cut  it  all 
[*  95]  oflF,  *  and  she  brought  an  action  against  him  by  her  next 

friend ;  and  the  barber  pleaded  leave  and  license.  The  next 
friend  replied  that  the  person  he  represented  was  an  infant  at  the 
time,  and  could  not  give  leave  and  license,  and  so  the  Court  held 
that  the  plea  was  a  bad  plea,  and  judgment  went  for  the  next 
friend.  That  is  the  most  remarkable  case  of  leave  and  license  that 
I  recollect  at  this  moment,  but  it  was  quite  as  much  to  the  pur- 
pose as  the  case  upon  which  Mr.  Pearson  has  so  much  relied. 

But  to  leave  all  such  considerations,  let  us  see  what  is  the  case 
here  pleaded  and  proved.  The  plaintiff's  case  is  that  he  is  the 
owner  of  an  undivided  third  of  the  lands  in  question.  His  alle- 
gation is  that  **  by  an  agreement,  dated  the  15th  day  of  Decern- 
ber,  1865,  the  defendants,  Maria  Potton,  John  Marriott,  and 
Caroline  Eliza  his  wife,  without  the  consent  or  knowledge  of  the 
plaintiff,  and  without  any  previous  notice  to  him,  agreed  to  let 
two  equal  undivided  third  parts."  The  evidence  upon  that  subject 
is  that  of  Mr.  Boberts,  who  has  not  been  cross-examined,  although 
there  was  an  opportunity  of  doing  so.  In  his  evidence  he  proves, 
and  it  is  uncontradicted,  that  on  the  21st  of  March,  1865,  he 
wrote  to  the  plaintiff  this  letter:  [His  Honour  read  the  letter 
extracted  above,  and  continued:  ]  The  plaintiff,  in  his  aflSdavit^ 
does  not  repeat  that  paragraph,  which  I  have  read  from  his  bill, 
but  he  does  state  that  he  did  not  discover  that  the  agreement  had 
been  made  until  the  month  of  June,  1868.  He  says  he  has  read 
the  statement  in  the  answer  of  David  Jones,  that  he  and  the  said 
Maria  Potton  and  a  Mr.  Boberts,  a  surveyor,  informed  him  of 
the  negotiations  for  such  agreement,  that  that  statement  was 
"  wholly  untrue."  That  is  the  way  that  piece  of  evidence  is  met, 
and  upon  that,  in  my  opinion,  taking  into  consideration  what  Mr. 
Boberts  states  elsewhere,  Mr.  Boberts  must  be  taken  to  have  told 


R.  C.  VOL.  XVII.]       SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES.       869 
Ho.  87.  —Job  ▼.  Fotton,  L.  B.  90  Eq.  96,  96. 

the  truth,  and  the  Court  must  act  upon  it  as  a  fact,  that,  either  at 
the  time  or  before  the  agreement  of  1865  was  entered  into,  the 
plaintiff  was  fully  apprised  of  it  It  is  not  necessary  to  go  far 
to  find  satisfactory  proof  of  that,  because  the  correspondence,  which 
is  verified  by  Mr.  Jones'  aflSdavit,  shows  clearly  that  the  plaintiff 
was  perfectly  acquainted  with  everything  that  had  been  done 
under  the  agreement.  There  is  a  letter  of  a  later  date,  in  which 
his  share  of  the  royalty  is  stated  to  him  as  being  equal  to  that 
of  Mrs.  Potton,  and  of  the  third  party,  and  that  the  money 
has  *  been  at  his  command  ever  since.  The  bill  states  in  [*  96] 
the  fourth  paragraph  that  the  plaintiff  did  not  discover  the 
fact  that  the  agreement  had  been  made  until  on  or  about  June, 
1868 ;  and  then  comes  this  statement  in  the  fifth  paragraph  of  the 
bill,  of  which  there  is  not  one  particle  of  evidence :  "  After  dis- 
covering the  conduct  of  the  defendants  in  leasing  and  working  the 
said  minerals,  the  plaintiff  remonstrated  with  the  defendant  David 
Jones,  and  threatened  to  take  proceedings  against  the  defendants  in 
respect  thereof,  and  thereupon  negotiations  took  place  for  a  com- 
promise of  the  plaintiff's  claims,  but  such  negotiations  failed."  He 
further  alleges  that  he  "  paid  a  visit  to  the  said  hereditaments  in 
the  month  of  May,  1872,  and  upon  the  occasion  of  the  said  visit 
the  plaintiff  discovered,  to  his  great  surprise,  that  the  defendant 
David  Jones  was  just  completing  a  new  arrangement  with  the 
other  defendants  for  a  letting  of  the  said  mines  and  minerals  for  a 
further  term  of  ten  years."  This  is  also  plainly  disproved.  It  is 
not  true  that  any  working  has  been  carried  on  after  the  termina- 
tion of  the  agreement  for  three  years  from  1865.  It  is  true  that 
there  was  a  negotiation  pending  at  an  early  time,  but  it  is  equally 
true  that  there  was  nothing  done  upon  th^t  negotiation,  and  that 
because  of  the  plaintiff's  declining  to  be  a  party  to  it.  And  is  there 
anything  in  the  case  but  this,  that  the  plaintiff,  knowing  very  well 
that  his  two  co-tenants  were  working  the  mine,  —  for  Mr.  Jones' 
working  is  only  their  working,  —  takes  no  step,  remonstrates  in  no 
way,  not  only  does  not  apply  to  this  Court,  but  does  not  apply  to 
any  other  Court,  does  not  offer  the  slightest  objection  to  what  was 
being  done  during  these  three  years,  and  now  by  his  bill  comes 
and  asks  that  Mr.  Jones,  who  has  been  only  the  agent  of  the  real 
owners,  should  be  charged  with  the  share  of  profits  that  might 
have  been  made  by  working  this  colliery?  If  he  is  entitled  to 
anything,  it  can  only  be  from  the  day  when  a  decree  is  pronounced ; 


870  MIN£S  AND  MINERALS. 

Ho.  87.  —Job  ▼.  Pottoa,  L.  &.  90  Eq.  96,  97. 

he  can  be  entitled  to  nothing  else.  A  person  who  has  been 
standing  bj  all  this  time,  may  take  his  account,  —  it  is  indif- 
ferent from  what  period  he  takes  it,  —  he  may  take  the  account 
from  1868.  I  think  he  is  entitled  to  such  an  account,  but  I 
think  he  is  entitled  to  no  more ;  and  I  think,  with  respect  to 
any  costs  of  the  suit,  it  would  be  in  the  highest  degree  unjust 
if  I  made  Mr.  Jones  pay  any  costs  of  this  suit ;  although,  as  I 

have  said,  he  is  answerable  for  such  share  as  the  plaintiff 
[*  97]  may  be  enabled  to  establish,  by  means  of  an  *  inquiry,  to  be 

due  to  him ;  and,  if  the  plaintiff  insists  upon  it,  I  will  direct 
such  an  inquiry  at  his  instance  and  at  his  risk. 

Upon  this  subject  I  must  say  that  in  directing  that  account  I 
cannot  adopt  either  of  the  rules  which  have  been  referred  to  in 
the  decided  cases,  because  this  case  does  not  resemble  in  its  sub- 
stance, elements,  or  nature  either  of  the  cases  to  which  those 
varying  rules  were  applied.  If  a  wrongdoer  does  an  act  which,  if 
it  were  the  case  of  a  chattel,  and  capable  of  sustaining  an  indict- 
ment, would  amount  to  larceny,  then  the  most  rigorous  mode  of 
taking  the  accounts  is  that  which  is  adopted  against  him.  If  it 
has  been  by  inadvertence,  or  by  negligence,  not  culpable  or  tortious 
in  any  other  sense,  then  the  plaintiff  is  entitled  to  the  value  of 
the  coal  at  the  pit's  mouth,  allowing  nothing  for  the  mere  severance 
but  allowing  for  the  transport  of  the  coal  to  the  pit's  mouth.  But 
this  is  not  a  case  in  the  slightest  degree  falling  within  this  principle. 
This  is  a  case  in  which,  if  the  coal  had  been  severed  by  the  two  co- 
tenants,  and  brought  by  them  to  the  surface  and  then  disposed  of, 
they  would  have  been  entitled  to  deduct  from  the  value,  in  account 
with  their  co-tenants,  the  cost  of  severance  and  the  cost  of  brings 
ing  it  to  the  pit's  mouth.  Mr.  Jones  is  precisely  in  that  position 
now.  Mr.  Jones  has  done  nothing  tortious,  neither  larcenous  nor 
negligent,  but  in  the  assertion,  and,  as  I  conceive,  in  the  exercise  of 
a  strict  right,  has  brought  this  coal  to  the  surface,  —  has  accounted 
to  the  two  co-tenants  for  what  he  and  they  agreed  was  its  value ; 
and  he  is  accountable  to  the  plaintiff  for  what  shall  appear  to  be  its 
value,  but  subject  to  those  deductions.  That,  in  my  opinion,  dis- 
poses of  the  whole  of  the  case.  I  do  not  want  to  travel  into  the 
subtleties  which  I  have  listened  to,  not  without  interest,  from  Mr. 
Pearson,  but  which,  in  my  judgment,  have  nothing  whatever  to  do 
with  this  case,  which  is  to  be  decided  and  dealt  with  in  a  Court  of 
equity.     Here,  all  that  the  co-tenants  have  done  has  been  to  take 


R.  C.  VOL.  XVII.]      SECT.  VH. —  SPBCIAL  RULES  AS  TO  REMEDIES.       871 
Ho.  87.  — Job  ▼.  Potton,  L.  B.  90  Eq.  97,  99. 

and  enjoy  that  which  was  unquestionably  theirs,  although  it  was 
at  that  time  undivided.  If  anybody  will  point  out  to  me  the  way 
in  which  a  co-tenant  of  a  mine  could  enjoy  that  which  is  his,  by 
any  other  means  than  that  which  was  adopted  here,  I  will  listen  to 
it  with  the  greatest  pleasure,  and  change  my  opinion.  The  con- 
duct of  the  plaintiflf  has  been,  in  my  opinion,  certainly 
without  any  explanation,  and,  as  I  think,  without  *  excuse.  [*  98] 
It  is  also  clear  that  the  plaintiff,  who  now  files  a  bill 
alleging  the  large  value  of  tins  property,  and  attempts  to  prove  by 
his  witness  that  the  coal  under  it  was  worth  £10,000,  and  is  now 
worth  j£6000,  was  ready  to  sell  it  for  <£180 ;  and  I  cannot  add  the 
£160  to  make  up  the  price  —  it  was  a  totally  different  transaction. 
The  plaintiff  said  to  Mrs.  Potton,  "  Your  husband  owed  me  £160 ; 
if  you  will  pay  me  your  debt,  I  will  sell  my  mine  for  £180." 
That  is  not  selling  ''  my  mine  "  for  <£340 :  it  is  a  plain  unqualified 
suggestion,  as  far  as  it  goes,  that  the  j£180  was  the  whole  value  to 
a  purchaser  of  the  thing  which  Mr.  Job  had  to  sell  at  that  time. 

To  the  proceedings  in  the  common-law  Courts  I  have  already 
adverted.  In  the  proceedings  in  this  Court  there  has  been  no 
application  for  an  injunction ;  and  no  such  application  could  at  any 
time  have  been  successful.  That  there  can  be  none  now  is  obvious, 
because  there  has  been  a  decree  in  a  partition  suit;  but  if  the 
present  plaintiff  —  I  suppose  a  defendant  in  that  suit  —  had  any 
such  case  as  he  suggests  upon  this  record,  I  ask  why  he  did  not 
bring  that  forward  in  the  partition  suit,  and  say,  "  In  making  a 
decree  for  partition,  you  must  take  into  consideration  that  my  other 
two  co-owners  carried  away  a  part  of  the  inheritance." 

[Mr.  Pearson  observed  that  the  point  was  very  strenuously 
argued.] 

I  suppose  then  that  I  thought  there  was  no  proof  of  the  fact. 
However,  that  is  all  over,  and  it  has  very  little  to  do  with  the 
present  case.  All  I  can  do  in  this  case  is  to  deal  with  this  record. 
I  find  persons  made  parties  to  the  suit  whom  the  plaintiff  says  it 
was  necessary  for  his  interest  to  make  parties  to  it  Very  well,  as 
he  says  so,  and  as  they  make  no  claim,  as  they,  in  my  judgment, 
or  the  persons  they  represent,  have  done  nothing  which  they  were 
not  entitled  to  do,  as  no  account  is  asked  against  them  at  the  bar, 
and  they  are  not  accountable,  in  my  opinion,  the  plaintiff  must  pay 
their  costs  of  the  suit  up  to  the  hearing,  and,  if  he  likes,  they  may 
then  be  dismissed.    All  the  decree  can  do  besides,  is  to  direct  an 


872  MINES  AND  MINERALS. 


Ho.  87.-- Job  ▼.  FottOB,  L.  B.  90  Eq.  98,  99. 


account  of  the  coal  which  has  been  gotten  by  Mr.  Jones,  of  the 
value  of  that  coal,  making  to  him  all  just  allowances,  including 
especially  the  cost  of  severing  the  coal  and  the  cost  of  bringing 
it  up  to  the  pit's  mouth ;  and  for  one-third  of  that,  the  plaintiff, 
being  bound  by  no  agreement,  will  be  entitled  to  claim  payment 
from  Mr.  Jones.  I  have  already  said  I  shall  give  no  costs 
[*  99]  against  *  Mr.  Jones  up  to  the  hearing.  The  costs  after- 
wards will  of  necessity  be  reserved ;  and  although  I  have 
not  gone  into  it  at  any  great  length,  I  desire  it  to  be  understood 
that  I  proceed  upon  the  evidence  in  the  case  as  it  stands,  namely, 
on  the  one  hand,  the  discrepant  evidence  between  the  plaintiff  and 
Mr.  Vavasor  Powell,  and  on  the  other  hand,  the  plain  evidence 
on  the  part  of  the  defendant  Jones  and  his  witness,  Roberts,  —  a 
person,  from  his  employment,  entitled  to  be  listened  to  when  he  is 
speaking  on  such  a  subject  as  a  coal  mine,  and  who,  as  I  have 
said,  has  not  been  cross-examined.  But  I  give  him  no  costs, 
because,  although  I  do  not  blame  him,  he  chose  to  go  on  without 
the  authority  and  consent  of  the  plaintiff.  The  subsequent  costs 
will  of  necessity  be  reserved. 

There  only  remains  to  be  mentioned  the  subject  of  the  damage 
which  the  surface  is  said  to  have  sustained.  On  both  sides  it  is 
agreed  that  that  damage,  whatever  it  was,  was  occasioned  by  the 
working.  The  working  was  a  lawful  thing,  and  the  damage,  if 
done,  ought  to  have  been  repaired.  It  is  in  evidence  distinctly  not 
only  that  such  damage  was  occasioned  by  the  proper  working,  but 
that  it  has  been  effectually  repaired,  and  that  the  cottage  said  to 
have  had  a  cracked  wall  is  now  a  better  cottage  by  a  great  deal 
than  it  was  before.  Upon  that  subject,  therefore,  in  my  opinion, 
no  further  observations  need  be  made. 

The  following  are  minutes  of  the  order :  — 

Inquire  what  coals  have  been  worked  and  gotten  by  the  defend- 
ant David  Jones  from  the  mines  under  the  Allsop  Estate  in  the 
pleadings  mentioned,  and  what  was  the  market  value  thereof  at  the 
pit's  mouth,  and  what  were  the  costs  incurred  by  the  said  defendant 
in  getting  and  severing  the  coal,  and  bringing  it  to  the  pit's  mouth, 
and  deduct  the  amount  of  such  costs  from  the  amount  of  such 
value,  and  order  the  defendant  Jones  to  pay  to  the  plaintiff  one- 
third  part  of  the  amount  of  such  value  after  such  deduction ;  no 
costs  of  suit  as  between  the  plaintiff  and  the  defendant  Jones. 


B.  C.  VOL.  XVIL]       sect.  VIL  —  SPECIAX  EULBS  AS  TO  REMEDIES.       87S 
Vol.  85-87. — Xartia  ▼.  Fortar ;  Jegoa  ▼•  Yima ;  Job  ▼.  Potton. — Hotet. 

The  plaintiff  electing  not  to  keep  the  other  defendants  before 
the  Court  for  the  purposes  of  such  inquiry,  dismiss  the  bill  with 
costs  as  to  them ;  but  only  one  set  of  costs  is  to  be  allowed  to  the 
defendants  representing  each  of  the  two  undivided  third  parts  of  the 
estate. 

ENGLISH  NOTES. 

The  above  report  of  Martin  v.  Forter  from  Meeson  &  Welsby  doea 
not  substantially  differ  from  that  in  the  contemporary,  but  seldom  used 
report  of  Horn  &  Hurlestone.  But  it  appears  from  the  judgment  of 
Lord  Denman,  Ch.  J.,  in  Morgan  v.  Fowell  (1842),  3  Q.  B.  278,  that 
the  direction  of  the  learned  judge  (Pabke,  B.)  upon  which  the  rule 
had  been  taken  (and  which  was,  therefore,  in  effect  affirmed  by  the  judg- 
ment of  the  Court  of  Exchequer)  was  that  '^tbe  plaintiff  was  entitled 
to  the  value  of  the  coal  as  a  chattel  at  the  time  when  the  defendant 
began  to  take  it  away,  that  is  as  soon  as  it  existed  as  a  chattel. '^  Lord 
Denman  points  out  (3  Q.  B.  at  p.  284)  that  this  value  would  be  the  sale 
price  at  the  pit's  mouth,  after  deducting  the  expense  of  carrying  the 
coals  from  the  place  in  the  mine  where  they  were  got  to  the  pit's  mouth. 
This  correction  of  the  judgment  in  Martin  v.  Forter,  which  agreea 
with  the  direction  given  by  Parks,  B.,  in  a  nieiprius  case  of  Wood  v. 
Morewood  (1841)  3  Q.  B.  440  n,  has  always  been  adopted  in  subsequent 
cases. 

The  principle  appears  to  be  this.  The  act  of  hewing  and  converting 
into  a  chattel  coal  which  is  the  property  of  another  is  a  trespass  and 
prima  facie  incapable  of  being  made  the  foundation  of  a  claim  by  the 
trespasser  to  be  allowed  for  its  payment.  The  act  of  hauling  and  rais- 
ing to  the  pit  mouth  the  coal  which  has  been  severed  from  the  seam,  is 
primA  fade  a  necessary  service  to  the  owner  of  the  coal,  and,  unless 
the  intention  appears  to  appropriate  that  which  is  another's  (which  peiv 
haps  is  the  ground  of  judgment  in  Flant  v.  Seott  (1869),  21  L.  T. 
(n.  s.)  106),  is  to  be  allowed  for  by  the  owner.  If  this  intention  is  not 
imputed,  there  is  still  a  distinction  between  what  is  called  the  harsher 
and  the  milder  rule;  the  latter  being  adopted  where  the  transaction  is 
bond  fide,  and  the  owner  of  the  coal,  while  claiming  the  value,  makes 
an  allowance  for  the  cost  of  hewing  and  converting  into  a  chattel,  as 
well  as  the  cost  of  hauling  and  raising. 

What  has  been  called  the  milder  rule  has  been  followed  in  Re 
United  MeHhyr  Collieries  Co,  (V.  C.  Bacon,  1872),  L.  R.  15  Eq.  46, 
21 W.  R  117;  in  Aehtan  v.  Stock  (V.  C.  Hall,  1877),  6  Ch.  D.  719,  25 
W.  R.  862;  and  in  Brovm  v.  Dihhe  (Judicial  Committee,  1877),  37 
L.  T.  171,  25  W.  R.  776. 

Both  the  modes  of  calculation  are  respectively  employed  in  the  case  of 


874  MINES  AND  MINERALS. 


Km.  35-87.  —  Martin  ▼.  Porter ;  Jegoa  ▼.  YiTian ;  Job  ▼.  Potton.  —  Hotel. 

Trotter  v.  Maclean  (Fby,  J.,  1879),  13  Ch.  D.  574, 49  L.  J.  Ch.  25^^  42 
L.  T.  118,  28  W.  R.  244,  where  work  (by  instroke  from  an  adjoining 
mine)  was  commenced  pending  a  negotiation  and  in  the  bond  fide  ex- 
pectation of  obtaining  a  contract  from  trustees,  and  continued  after 
definite  notice  that  no  contract  could  or  would  be  entered  into.  The 
milder  rule  was  applied  as  to  the  work  done  up  to  the  time  of  the  notice, 
and  the  harsher  rule  as  to  the  subsequent  workings. 

The  following  summary  is  given  by  Mr.  Justice  Fry  (13  Ch.  D.,  p.  686) 
of  the  previous  cases  in  which  the  respective  rules  had  been  applied : 
"  The  milder  rule  has  been  applied  where  the  Courts  have  said  that  the 
defendant  has  acted  inadvertently  in  taking  the  coal:  that  is  the  lan- 
guage of  Vice-Chancellor  Malins  in  Hilton  v.  Woods  (L.  R.  4  Eq.  432). 
Again,  it  has  been  applied  where  the  Courts  have  said  that  the  defend- 
ant has  acted  under  a  bond  fide  belief  of  title :  of  that  HUton  v.  Woods^ 
Jegon  v.  Vivian^  and  Ashton  v.  Stock,  are  examples.  It  has  been 
applied  again  when  the  Courts  have  said  that  the  defendant  has  acted 
fairly  and  honestly :  that  was  the  language  of  Lord  Wensletdale  in 
Wood  V.  Morewood  (3  Q.  B.  440  n.).  It  has  been  applied  in  cases  of 
mere  mistake :  that  is  the  language  of  Yice-Chancellor  Bacon  in  In  re 
United  Merthyr  Collieries  Company.  The  harsher  rule  has  been 
applied  where  the  Courts  have  found  fraud  :  of  that  there  are  numerous 
illustrations,  one  being  Ecclesiastical  Commissioners  for  England 
V.  North  Eastern  Railway  Company  (4  Ch.  D.  845).  It  has  been 
applied  where  there  has  been  negligence:  that  was  the  language  of 
Lord  Wensletdalb  in  Wood  v.  Morewood,  It  has  been  applied  when 
the  act  of  the  defendant  has  been  said  to  be  wilful,  as  in  Martin  v. 
Porter,  It  has  been  applied  where  the  Court  has  said  that  the  defendant 
has  acted  in  a  manner  wholly  unauthorised  and  unlawful,  which  was  the 
language  of  Vice-Chancel  lor  Bacon  in  Llynvi  Company  v.  Brogden 
(L.  R.  11  Eq.  188) ;  and  it  was  applied  by  Vice-Chancellor  Malins  in 
Ecclesiastical  Commissioners  for  England  v.  North  Eastern  Railway 
Company,  where  he  thought  the  workings  were  the  result  of  a  mistake.'' 
This  summary  is  referred  to  with  approval  by  Lord  Justice  Baooallay 
in  Joicey  v.  Dickinson  (C.  A.  1886),  45  L.  T.  643, 644.  There,  there  was 
a  wilful  trespass  by  the  defendant's  servants  without  the  knowledge  of 
the  defendants,  and  the  harsher  rule  was  applied. 

The  Scotch  case  of  Livingstone  v.  Rawyards  Coal  Co,  (H.  L.  Sc.  1880), 
5  App.  Cas.  25,  42  L.  T.  334,  28  W.  R.  357,  was  one  of  peculiar  circum- 
stances. In  1837  the  proprietor  of  the  R.  estate  granted  a  feu  (perpet- 
ual right)  of  about  an  acre  and  half  of  land,  reserving  to  himself,  his 
heirs  and  successors,  the  whole  ironstone  in  the  ground  feued.  There 
was  no  reservation  of  coal.  In  1872  the  successors  in  the  R.  estate 
granted  to  the  respondent  company  a  lease  of  the  whole  property  in  the 


R.  C.  VOL.  XVII.]      SECT.  VIL —  SPECIAL  RULES  AS  TO  REMEDIES.       875 

Hot.  85-87.  —  Martin  ▼.  Porter ;  Jegcm  ▼.  Yima ;  Job  ▼.  Potton. — Hotel. 

coal  under  the  estate  at  a  royalty  of  6c^.  per  ton.  The  company,  on  the 
bond  fide  assumption  that  they  were  entitled  to  the  whole  coal,  worked 
the  coal  under  the  feu,  doing  some  surface  damage  to  the  land  which  had 
become  vested  in  the  appellant.  The  appellant  had  also  been  under  the 
impression  that  the  coal  did  not  belong  to  him ;  but  on  an  examination 
of  the  titles  with  reference  to  the  claim  for  surface  damage,  and  after 
all  the  coal  had  been  worked  out,  it  was  discovered  that  the  coal  under 
the  feu  belonged  to  the  appellant.  It  appeared  that,  owing  to  the  small 
size  of  the  property,  the  appellant  could  not  have  worked  the  coal  or 
disposed  of  it  in  any  way  except  by  selling  it  to  the  defendant.  It  was 
held  that  what  the  appellant  was  entitled  to  receive  was  the  value  of 
his  coal  plus  the  surface  damage ;  and  that  the  best  estimate  of  the  value 
under  the  peculiar  circumstances  of  the  field  was  the  royalty  paid  by  the 
company  for  the  coal  in  the  surrounding  field.  It  was^  in  effect,  shown 
by  Lord  Blackburn  that  the  principle  of  Jegon  v.  Vivian  applies ; 
but  that  if  the  particular  mode  of  calculation  used  in  that  and  the  other 
English  cases  had  been  applied,  —  namely,  of  taking  the  selling  price 
of  the  coal  and  deducting  the  price  of  hewing  and  drawing,  — the  plain- 
tiff, by  getting  damages  paid  by  letting  down  the  surface,  would  have 
been  paid  those  damages  twice  over ;  because  they  were  really  part  of 
the  cost  of  converting  the  coal  into  a  marketable  commodity.  So  that 
the  Courts  were  thrown  back  upon  the  royalties  as  the  best  evidence 
of  the  value  to  be  taken  as  the  measure  of  damages. 

The  harsher  rule  was  again  applied  by  the  Court  of  Appeal  in  Taylor 
V.  Mostyn  (C.  A.  1886),  33  Ch.  D.  226,  55  L.  J.  Ch.  893,  55  L.  T.  651, 
against  mortgagees  in  possession  of  a  colliery  who  had,  contrary  to  the 
covenants  of  their  own  lease,  authorised  their  sub-lessees  to  work  the 
coal  contained  in  pillars  covenanted  under  the  lease  to  be  left. 

In  Whitwham  v.  Westminster  Brynibo  Coal  &  Coke  Co.  (Chittt,  J., 
and  C.  A.),  1896,  1  Ch.  894,  2  Ch.  538,  ^5  L.  J.  Ch.  508,  741,  the 
defendants  had  for  years  carried  spoil  over  and  deposited  it  on  the  plain- 
tiff's land.  At  the  trial  of  an  action  the  defendants  were  restrained 
from  further  tipping ;  they  were  ordered  to  deliver  up  possession  of  the 
land,  and  an  inquiry  directed  as  to  damages.  The  area  of  the  land  in 
question  was  about  an  acre  and  three-quarters,  and  about  seven-eighths 
of  an  acre  had  been  actually  covered  and  destroyed  by  the  spoil.  The 
rest  of  the  land  was  found  to  have  been  made  valueless  except  for  the 
purposes  of  tipping  spoil.  Chittt,  J.,  on  the  question  of  damages, 
held  that  in  regard  to  the  land  which  the  plaintiffs  had  actually  covered 
with  their  spoil,  the  defendants  must  pay  the  value  to  them  of  that  land 
for  this  purpose ;  but,  as  to  the  rest  of  the  land  in  question,  they  must 
pay  on  the  footing  (only)  of  the  diminished  value  of  the  land  to  the 
plaintiff's.  If  this  principle  was  right,  the  damages  were  agreed  at 
£550.     The  Court  of  Appeal  affirmed  the  judgment.     The  case  was 


876  MINES  AND  MINEKAU3. 


Hot.  85-87.— Martin ▼.?€>!«;  Jegoa ▼.  l^TJu ;  Jobv.  Fotton.  —  Vofeot. 


uppropriately  described  by  Lopes^  L.  J.,  as  something  between  the 
ordinary  case  of  a  trespass  to  land,  and  a  way-leave  case.  Bigby,  L.  J., 
said  :  "  The  principle  is  that  a  trespasser  shall  not  be  allowed  to  make 
use  of  another  person's  land  without  in  some  way  compensating  that 
other  person  for  that  user.  Where  the  trespass  consists  in  using  a  way 
over  the  plaintiff's  land,  a  convenient  way  of  assessing  damages  may 
be  by  an  inquiry  as  to  way-leave,  which,  when  there  is  a  customaiy 
rate  of  charge  for  way-leave  in  the  locality,  may  furnish  a  convenient 
measure  of  damages ;  but  the  principle  is  that  in  some  way  or  other,  if 
you  can  do  nothing  better  than  by  rule  of  thumb,  the  trespasser  must 
be  charged  for  the  use  of  the  land.  In  this  case  we  are  relieved  from 
all  difficulty  about  figures,  because  the  learned  counsel  have  agreed  the 
amount ;  and  all  we  have  to  say  is  that  the  principle  enunciated  by 
Chitty.  J.,  is  right,  with  the  consequence  that  £550  is  the  amount  of 
the  damage.'^ 

AMERICAN  NOTES. 

The  cases  of  Martin  v.  Porter  and  Morgan  v.  Powell,  3  Ad.  &  EU.  (N.  S.) 
281,  have  been  much  cited  in  this  country,  and  Jegon  v.  Vivian  has  also  been 
somewhat  cited.  The  rule  in  cases  of  trespass  and  trover  is  not  uniformly 
held  here,  and  the  feature  of  good  faith  and  innoceut  mistake  has  in  some 
Courts  been  allowed  to  modify  the  strictness  of  the  law.  In  the  important  case 
of  Woodenware  Co,  v.  United  States,  106  United  States,  432  (a  case  of  cutting 
timber),  the  Court  laid  down  the  rule  that  (1)  where  the  trespass  was  wilful 
the  damages  were  the  full  value  at  demand  with  no  deduction  for  labor  and 
expense ;  (2)  where  the  trespass  was  unintentional,  the  value  at  conversion 
less  the  amount  added  to  its  value  by  the  trespasser ;  (3)  where  the  action  is 
against  an  innocent  purchaser  from  a  wilful  trespasser,  the  value  at  the  time 
of  purchase.  The  Court  said :  "In  the  English  Courts  the  decisions  have  in 
the  main  grown  out  of  coal  taken  from  the  mine,  and  in  such  cases  the  prin- 
ciple seems  to  be  established  in  those  Courts  that  when  suit  is  brought  for 
the  coal  so  taken,  and  it  has  been  the  result  of  an  honest  mistake  as  to  the 
true  ownership  of  the  mine,  and  the  taking  was  not  a  wilful  trespass,  the  rule 
of  damages  is  the  value  of  the  coal  as  it  was  in  the  mine  before  it  was  dis* 
turbed,  and  not  its  value  when  dug  out  and  delivered  at  the  mouth  of  the 
mine.  Martin  v.  Porter,  5  Mee.  &  W.  351 ;  Morgan  v.  Powell,  3  Ad.  &  E. 
(N.  S.)  278 ;  Wood  V.  Morewood,  3  id.  440 ;  HiUon  v.  Woods,  L.  R.  4  Eq.  432 ; 
Jegon  v.  Vivian,  L.  R.  6  Ch.  App.  742. 

«  The  doctrine  of  the  English  Courts  on  this  subject  is  probably  as  well 
stated  by  Lord  Hatherly  in  the  House  of  Lords,  in  the  case  of  Livingstone  v. 
Rawyards  Coal  Co.,  5  App.  Cas.  25,  as  anywhere  else." 

"  There  seems  to  us  to  be  no  doubt  that  in  the  case  of  a  wilful  trespass 
the  rule  as  stated  above  is  the  law  of  damages  both  in  England  and  in  this 
country,  though  in  some  of  the  State  Courts  the  milder  rule  has  been  applied 
even  in  this  class  of  cases.  Such  are  some  that  are  cited  from  Wisconsin. 
Weymouth  v.  Chicago  if  Northwestern  Railway  Co.,  17  Wisconsin,  650;  Single  y^ 
Schneider,  24  id.  299. 


R.  C.  VOL.  XVII.]      SECT.  VU.  —  SPECIAL  RULES  AS  TO  REMEDIES.       877 
Vol.  85-87.  —  Martin  ▼•  Portar ;  logon  ▼.  Ifivinn ;  Job  ▼.  Pottan. — VotM. 

**  On  the  other  hand,  the  weight  of  aathority  in  this  country  as  well  as  in 
England  favors  the  doctrine  that  where  the  trespass  is  the  result  of  inadver- 
ience  or  mistake,  and  the  wrong  were  not  intentional,  the  value  of  the  prop- 
erty when  first  taken  must  govern ;  or  if  the  conversion  sued  for  was  after 
value  had  been  added  to  it  by  the  work  of  the  defendant,  he  should  be  cred- 
ited with  this  addition.  Winchester  v.  Craig^  33  Michigan,  205,  contains  a 
full  examination  of  the  authorities  on  the  point.  Heard  v.  James,  49  Missis- 
sippi, 236;  Bakery.  Wheeler,  8  Wendell  (N.  T.),  505;  Baldwin  v.  Porter,  12 
Connecticut,  484. 

<<  While  these  principles  are  sufficient  to  enable  us  to  fix  a  measure  of  dam- 
ages in  both  classes  of  torts  where  the  original  trespasser  is  defendant,  there 
remains  a  third  class,  where  a  purchaser  from  him  is  sued,  as  in  this  case,  for 
the  conversion  of  the  property  to  his  own  use.  In  such  case,  if  the  first  taker 
of  the  property  were  goilty  of  no  wilful  wrong,  the  rule  can  in  no  case  be 
more  stringent  against  the  defendant  who  purchased  of  him  than  against  his 
vendor." 

In  Coal  Creek  M.  Sf  M.  Co,  v.  Moses,  15  Lea  (Tennessee),  300 ;  54  Am. 
Rep.  415,  it  was  held  that  in  case  of  innocent  trespass,  the  damages  were  the 
value  of  the  coal  in  the  bed,  with  the  incidental  injury  to  the  land.  The 
Court  said :  ''  The  authorities  are  hopelessly  in  conflict  as  to  the  proper  meas- 
ure of  damages  where  coal  or  ore  has  been  mined  by  one  person  upon  the 
land  of  another.  Much  of  this  conflict  has  grown  out  of  the  forms  of  action 
at  common  law,  and  the  difficulty  of  confining  the  recovery  to  mere  compensa- 
tion, where  the  principle  upon  which  the  form  of  action  is  supposed  to  rest 
allowed  a  larger  recovery.  The  tendency  of  the  recent  decisions  is  to  ignore 
the  form  of  action,  and  to  regulate  the  recovery  by  the  rule  of  compensation, 
looking  to  the  intention  of  the  defendant.  The  course  of  English  decision  is 
curiously  illustrative  of  the  change  of  judicial  opinion.  Originally,  even  in 
the  case  of  an  inadvertent  trespass,  the  plaintiff  was  held  entitled  to  the  value 
of  the  coal  after  it  was  mined,  without  any  deduction  for  the  cost  of  severing. 
Martin  v.  Porter,  5  M.  &  W.  551 ;  Morgan  v.  Powell,  3  Ad.  &  El.  281 ;  Wild  v. 
Holt,  9  M.  &  W.  472.  Afterward  the  rule  was  modified  so  that  in  a  case 
where  the  trespass  was  fully  proved,  but  without  fraud,  it  was  held  that  the 
defendant  was  liable  only  for  the  value  of  the  coal,  deducting  the  cost  of  its 
^verance  and  carrjdng  it  to  the  mouth  of  the  mine.  In  re  United  Merthyr 
Collieries  Company,  L.  R.  15  Eq.  46.  Again,  even  at  law,  in  an  action  of 
trover,  if  the  jury  found  that  the  defendant  acted  fairly  and  honestly  under  a 
daim  of  right,  they  were  instructed  to  give  the  fair  value  of  the  coal  as  if  the 
<5oal  field  had  been  purchased  from  the  defendant.  Wood  v.  Morewood,  3  Ad. 
&  El.  (N.  S.)  440.  And  finally,  in  a  case  in  the  House  of  Lords,  it  was  held 
that  where  the  defendant  innocently  and  ignorantly  worked  the  coal  beyond 
his  boundary,  the  measure  of  damage  was  the  value  of  the  coal  in  situ,  in  adrli- 
tion  to  any  surface  damage  there  may  be.  Livingstone  v.  Rawyards  Coed  Com' 
pany,  42  L.  T.  (N.  S.)  334.  And  this  rule  has  been  adopted  by  the  Court  of 
Chancery.  Hilton  v.  Wood,  L.  R.  4  Eq.  432;  Jegon  v.  Vivian,  L.  R.  6  Ch.  760. 
The  tendency  of  the  American  decision  is  to  adopt  the  same  rule,  whether  the 
action  be  trespass,  as  in  Foote  v.  Merrill,  54  New  Hampshire,  490 ;  s.  c.  20  Am. 
Rep.  151 ;  or  trover,  as  in  Forsyth  ▼.  Wells,  41  Penn.  St.  291.    *  Where,'  says 


878  MINES   AND  MINERALS. 


Hot.  85-37.  ^Martin  ▼.  Porter ;  Jegon  ▼.  YiTiaa ;  Job  ▼.  Potton. — Votes. 

the  Court,  in  this  last  case,  *  there  is  no  wrongful  purpose  or  wrongful  n^li- 
gence  in  the  defendant,  compensation  for  the  real  injury  done  is  the  purpose 
of  all  remedies ;  and  so  long  as  we  bear  this  in  mind  we  shall  have  but  little 
difficulty  in  managing  the  forms  of  action  so  as  to  secure  a  fair  result.  If  the 
defendant  in  this  case  was  guilty  of  an  intentional  wrong,  he  ought  not  to 
have  been  charged  with  the  value  of  the  coal  after  he  had  been  at  the  expense 
of  mining  it,  but  only  with  its  value  in  place,  and  with  such  other  damage  to 
the  land  as  his  mining  may  have  caused.  Such  would  be  manifestly  the  meas- 
ure in  trespass  for  mesne  profits.'  And  so  we  have  held  in  Ross  v.  Scott,  in  an 
opinion  delivered  with  this.  And  such  was  the  decision  of  this  Court  in  the 
case  of  a  wrongful  trespasser  who  cut  timber  on  land  in  Ensley  v.  NashoiUty 
2  Baxter,  144." 

The  same  doctrine  was  held  in  Ross  v.  Scott,  15  Lea  (Tennessee),  479, 
where  the  Court  said :  "  The  Courts  of  law,  trammelled  by  their  forms  of 
action  and  the  principles  upon  which  they  were  supposed  to  rest,  such  as  title 
in  replevin  and  conversion  in  trover,  have  found  it  very  difficult  to  formulate  a 
rule  which  would  lead  to  uniformity  in  the  recovery  of  damages  for  the  same 
wrong.  The  result  depended  upon  the  form  of  action  adopted  and  the  time 
of  bringing  suit,  and  might  be  very  different,  although  the  real  cause  of  injury 
was  the  same.  We  find  a  strong  example  in  the  case  of  the  Woodenware  Co,  v. 
United  States,  106  United  States,  432.  There  a  trespasser  cut  timber  from  the 
public  lands  to  the  value  of  sixty  dollars,  which  would  have  been  the  limit  of 
the  recovery  in  trover  against  the  wrongdoer  at  the  place.  But  he  carried 
the  timber  to  a  distant  market  at  a  heavy  expense,  and  sold  it  to  an  innocent 
purchaser  for  S850.  In  an  action  brought  by  the  United  States  against  the 
purchaser  in  the  nature  of  an  action  in  trover,  it  was  held  by  the  Supreme 
Court  that  the  recovery  should  be  the  value  of  the  timber  at  the  time  of  sale. 
The  result  may  be  logical,  but  the  inequality  between  the  damages  and 
the  recovery  is  too  great  to  be  satisfactory.  And  neither  the  English  nor  the 
State  authorities  have  gone  quite  so  far.  The  tendency  of  the  Courts,  the 
text-writers  all  agree,  is  to  look  less  to  form  and  more  to  the  substantial 
object  of  all  rights  of  action,  which  is  to  redress  the  injury  by  compensation. 
8  Suth.  Dam.  376,  488;  2  Sedg.  Dam.  484;  Add.  Torts,  s.  539;  7  Cent.  L.  J. 
301.  'A  careful  examination  of  the  authorities,*  says  the  Supreme  Court 
of  Nevada  in  a  recent  case,  *  has  convinced  us  that  there  is  a  growing  inclina- 
tion among  all  Courts,  where  it  can  be  done,  to  apply  the  only  safe  and  just 
rule  in  actions  of  damages,  whether  ex  contractu  or  ex  delicto,  and  that  is  to  give 
the  injured  party  as  near  compensation  as  the  imperfection  of  human  tribu- 
nals will  permit.'  Waters  v.  Stei^enson,  13  Nevada,  157 ;  s.  c.  29  Am.  Rep.  293. 
*  In  civil  actions,'  says  the  Supreme  Court  of  Michigan,  during  the  present 
year,  *  the  amount  of  recovery  does  not  depend  upon  the  form  of  the  action 
in  a  case  like  the  present  (where  logs  were  cut  by  mistake  from  the  lands  of 
another  and  hauled  into  a  creek  several  miles  from  the  land),  but  whether  it 
be  upon  contract  or  in  tort,  the  proper  measure  of  damages,  except  in  cases 
where  punitory  damages  are  allowed,  is  just  indemnity  to  the  party  injured 
for  the  loss,  which  is  the  natural,  reasonable,  and  proximate  cause  or  result  of 
the  wrongful  act  complained  of.'  Ayres  v.  Hubbard,  82  Alb.  L.  J.  217 ;  57 
Michigan,  322 ;  58  Am.  Rep.  361.     And  such  was  the  rule  of  damages  applied 


E.  a  VOL,  XVII.]      SECT.  VII.  —  SPECIAL  KULES  AS  TO  BEMEDIES.       879 

Km.  86-S7.  —  Martin  ▼.  Porter ;  Jegon  ▼.  YMan ;  Job  ▼.  PotUm.  —  Kotet. 

by  this  Court  in  Ensley  v.  Mayor,  Sfc.  of  Nashville,  2  Baxter,  144,  where  tim- 
ber was  cut  by  a  wilful  tresi>asser.  The  measure  of  damages  was  held  to  be 
the  value  of  the  trees  as  they  stood  upon  the  land,  and  the  injury  to  the  land 
by  their  removal.  The  weight  of  authority,  both  English  and  American,  now 
is,  that  where  there  is  an  honest  dispute  as  to  title,  or  where  the  trespass  has 
been  from  ignorance,  and  not  wilful,  the  damages  will  be  confined  to  the 
value  of  the  property  before  the  trespass  was  committed,  or,  to  use  the  lan- 
guage of  the  English  Courts,  '  at  the  same  rate  as  if  the  property  taken  had 
been  purchased  in  situ  by  the  defendant  at  the  fair  market  value  of  the  district.' 
Wood  V.  Morewoody  3  Q.  B.  440;  Jegon  v.  Vivian,  L.  R.  6  Ch.  742;  Hilton  v. 
Woods,  L.  R.  4  Eq.  432 ;  In  re  United  Merthyr  Collieries  Company,  L.  R.  15 
Eq.  46 ;  Livingstone  v.  Rawyard's  Coal  Co.,  42  L.  T.  (N.  S.)  334 ;  Goller  v.  FeU, 
30  California,  481;  Forsyth  v.  Wells,  41  Penn.  St.  291;  Ward  v.  Carson  River 
Wood  Co.,  13  Nevada,  44 ;  Weymouth  v.  Northwestern  R,  Co.,  17  Wisconsin, 
550 ;  Foote  v.  Merrill,  54  New  Hampshire,  490 ;  s.  c.  20  Am.  Rep.  151 ;  Long- 
fellow V.  Quimby,  33  Maine,  457 ;  Stockbridge  Iron  Co,  v.  Cone  Iron  Works, 
102  Massachusetts,  80 ;  Ry.  Co.  v.  Hutchins,  32  Ohio  St.  571 ;  8.  c.  30  Amu 
Rep.  629. 

"  The  Court  of  Chancery  is  not  hampered  by  forms,  and  possesses  all  the 
power  and  means  to  do  exact  justice  as  near  as  is  possible.  It  never  enforces 
forfeitures  nor  gives  punitive  damages.  The  fundamental  rule  of  equity  is 
to  afford  just  compensation  to  its  suitors.  The  bill  before  us  is,  under  our 
decisions,  one  of  pure  equitable  cognizance.  Almony  v.  Hicks,  3  Head,  89. 
It  seeks  to  remove  the  defendant's  paper  title  as  a  cloud  upon  the  complain- 
ant's legal  title  to  the  land  in  controversy,  and  as  the  necessary  consequences 
of  the  decree  to  recover  possession  of  the  land  in  controversy  and  to  have  an 
account  for  mesne  profits  and  waste.  All  that  the  complainant  can  claim  on 
the  account  is  just  compensation  for  the  coal  mined  and  the  wood  cut.  That 
just  compensation  under  the  foregoing  principles  of  law  and  the  rules  of  a 
Court  of  equity,  is  the  value  of  the  coal  before  it  was  mined  and  the  wood 
before  it  was  cut,  with  such  damages,  if  any,  as  may  be  occasioned  by  the 
impairment  of  the  value  of  the  land  by  reason  of  the  removal  or  mode  of 
removal  from  the  soil." 

In  Austin  v.  HuntsvilU  C.  §•  M.  Co.,  72  Missouri,  535;  37  Am.  Rep.  446, 
the  Court  s^id :  '<  The  Court  below,  at  plaintifPs  instance,  gave  this  declara- 
tion of  law :  <  The  measure  of  damages  for  the  coal  taken  is  the  value  thereof 
at  the  mouth  of  the  shaft,  less  cost  of  raising  it,  and  without  any  deduction 
for  the  expense  of  getting  or  severing  it  from  the  freehold.'  The  report  of  the 
referee  discloses  that  the  coal  was  worth  one-half  a  cent  in  the  mine,  and  seven 
cents  a  bushel  at  the  mouth  of  the  shaft,  or  in  the  proportion  of  one  to  four- 
teen. There  is  doubtless  abundant  authority  which  supports  the  above  declara- 
tion of  law.  Morgan  v.  Powell,  43  Eng.  Com.  Law,  734;  Martin  v.  Porter, 
5  M.  &  W.  352 ;  Barton  Coal  Co.  v.  Cox,  39  Maryland,  1  ;  s.  c.  17  Am.  Rep. 
525 ;  Robertson  v.  Joixes,  71  Illinois,  405 ;  McLean  Coal  Co.  v.  Long,  81  id. 
359;  Waterman  on  Trespass,  s.  1096;  Moody  v.  Whitney,  ^^  Maine,  563; 
Llynvis  Co.  v.  Brogden,  L.  R.  11  Eq.  188;  WUd  v.  Holt,  9  M.  &  W.  672.  But 
there  is  no  lack  of  authority  sustaining  a  different  view  of  the  matter.  Stock- 
bridge  Iron  Co.  V.  Cone  Iron  Works,  102  Massachusetts,  80 ;  Forsyth  v.  Wells, 


S80  MINES  AND  MINESALS. 


Hot.  85--87. — lUxtin  ▼.  Porter ;  logon  ▼.  VMmol  ;  Job  ▼.  Potton. — Hotao. 

41  Penn.  St.  291 ;  Chamberlain  v.  ColHnson,  45  Iowa,  429 ;  Waters  y.  Steven- 
son, 13  Nevada,  157 ;  s.  c.  29  Am.  Rep.  293  ;  Foote  v.  MerrUly  54  New  Hamp- 
jshire,  490 ;  20  Am.  Rep.  151 ;  Maye  v.  Yappan,  23  California,  306 ;  GoUer  y. 
Fetty  30  id.  481 ;  Ham  v.  Sawyer,  38  Maine,  37 ;  HUlon  v.  Woods,  L.  R.  4  £q. 
432;  Baldwin  v.  Porter,  12  Connecticut,  473;  Curtis  y.  Ward,  20  id.  204;  2 
Greenl.  Ev.,  ss.  253,  254;  Pierce  v.  Benjamin,  14  Pickering  (Mass.),  356;  25 
Am.  Dec.  400;  Wood  y.  Morwood,  3  Q.  B.  440 ;  In  re  United  Merthyr  Col.  Co. 
L.  R.  15  £q.  46."  "  The  authorities  from  which  we  have  quoted  seem  to  us 
to  announce  the  true  measure  of  damages  where  there  is  no  element  of  wilful- 
ness or  wrong,  or  such  gross  negligence  or  disregard  of  others*  rights  as  leads 
necessarily  to  the  inference  of  wilfulness  or  wrong,  because  a  party  engaged 
in  mining  may  readily  ascertain  by  dialing  that  he  is  trespassing  on  his  neigh- 
bor's property.  In  England  and  in  some  of  our  sister  States  the  result  reached 
in  cases  of  the  character  under  discussion,  and  which  gaye  origin  to  the  rule 
which  plaintiff  invokes,  is  no  doubt  owing  to  technicalities  from  which  we 
happily  are  freed,  since  we  have  but  one  form  of  action  in  this  State,  and 
•consequently  are  not  hampered  by  mere  matters  of  form  in  seeking  redress 
for  injury  done.  This  being  the  case,  there  would  seem  to  be  neither  rea- 
son, justice,  nor  consistency  in  paying  a  party  for  his  labor  in  raising  the  coal 
to  the  mouth  of  the  pit,  and  paying  him  nothing  for  his  labor  in  severing  it 
from  the  freehold,  t.  e.,  in  getting  it  into  such  condition  that  it  could  be  deliv- 
ered at  the  mouth  of  the  shaft.  If  the  labor  of  the  trespasser  deserves  oom- 
pensatibn  in  one  instance,  why  not  in  another?  By  the  operation  of  what 
principle,  based  upon  common  sense,  can  you  thus  apportion  the  injuiy  done, 
pay  for  its  continuation,  but  deny  pay  for  its  inception?  " 

The  best  reasoning  on  the  subject  in  the  American  Courts  is  in  Winchester 
T.  Craig,  33  Michigan,  205,  where  the  Court  said :  **  Passing  for  the  present 
the  adjudged  cases,  I  can  see  no  good  reason  or  principle  why  the  measure  of 
damages  in  actions  of  trover  should  be  different  from  that  in  other  actions 
sounding  in  tort ;  and  to  hold  that  there  is  such  a  distinction  is  to  permit  the 
form  of  the  action,  rather  than  the  actual  injury  complained  of,  to  fix  the 
damages.  This  would  be  giving  the  form  of  action  a  prominence  and  con- 
trolling influence  to  which  it  is  in  no  way  entitled,  and  would  be  permitting 
the  plaintiff,  by  the  adoption  of  a  particular  remedy,  to  increase  the  damages 
at  pleasure,  and  that  to  an  extent  which  would  far  more  than  compensate 
him  for  the  injury  which  he  sustained,  and  would  also  be  a  positive  wrong  to 
the  defendants.  Such  a  doctrine,  if  carried  out  to  its  logical  conclusion,  and 
Applied  to  many  cases  which  might  arise,  would  be  to  allow  the  plaintiff  dam- 
Ages  so  far  in  excess  of  the  injury  which  he  sustained  as  to  cause  us  to  doubt 
the  wisdom  of  any  rule  which  would  thus  sanction  a  greater  wrong  in  an 
attempt  to  redress  a  lesser. 

**  Let  us  suppose,  by  way  of  illustration,  one  or  two  cases  which  might 
easily  arise :  a  party  acting  in  entire  good  faith  enters  upon  the  lands  of 
another  by  mistake,  cuts  a  quantity  of  oak  standing  thereon  and  manufac- 
tures it  into  square  timber ;  this  he  ships  to  Quebec,  where  he  sells  it  at  a 
price,  which  as  compared  with  the  value  of  the  standing  timber,  renders  the 
latter  insignificant.  Or  suppose  the  owner,  instead  of  selling  such  timber  at 
Quebec,  ships  the  same  to  some  European  port,  and  there  sells  it  at  a  still 


K.  C.  VOL.  XVII.]      SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES.       881 

Hoi.  86-87.  — lUxtin  t.  Porter ;  logon  ▼.  Tivian ;  Job  ▼.  PotUm.  — Kotos. 

greater  advance.  Or  suppose  by  mistake  he  cuts  a  quantity  of  long  timber, 
suitable  for  masts,  and  forwards  it  to  Tonawanda,  or  New  York,  and  there 
sells  it.  Now,  in  either  of  these  cases,  would  it  be  just  to  permit  the  owner 
of  the  standing  timber,  in  an  action  of  trover,  to  recover  the  value  at  which 
it  was  sold  ?  Would  the  price  for  which  it  sold  be  the  amount  of  the  actual 
damage  which  he  sustained  from  the  original  cutting  ?  The  price  which  it 
brought  in  the  market  was  almost  wholly  made  up  of  the  cost  and  expense  of 
manufacturing  and  getting  it  there,  no  part  of  which  cost  or  expense  was 
borne  by  the  plaintiff.  Why,  then,  should  the  plaintiff  recover  this  increased 
value,  no  part  of  which  he  contributed  to  in  any  way  ?  Certainly  not  as  com- 
pensation for  the  injury  sustained  by  him,  because  he  sustained  no  such 
injury.  Neither  shall  it  be  for  the  purpose  of  punishing  the  defendants,  be- 
cause they  have  committed  no  act  calling  for  such  punishment.  It  can  only 
be  placed  upon  the  arbitrary  ground  that  in  this  form  of  action  the  plaintiff 
can  recover  the  full  value  of  his  property  at  any  place  he  may  find  it,  or 
trace  it  to. 

"  Then,  again,  there  is  no  uniformity  in  such  a  rule.  One  man  cuts  tim- 
ber, but  does  not  remove  it ;  another  cuts  and  removes  it  a  short  distance, 
adding  but  little  to  its  original  value ;  while  another  cuts  and  removes  it  a  long 
distance,  increasing  its  value  thereby  an  hundred-fold.  Separate  actions  are 
brought  against  each,  the  plaintiff  in  each  case  claiming  to  recover  the  value 
at  the  place  to  which  the  timber  was  taken.  Now,  it  is  very  evident  that 
although  the  value  of  the  standing  timber  in  each  case  was  the  same,  and  the 
actual  injury  to  the  plaintiff  in  each  case  the  same,  the  verdict  would  be  very 
different,  and  the  party  who  had  in  good  faith  done  the  most,  and  spent  the 
most  money,  in  giving  the  timber  any  real  value,  would  be  punished  the 
greatest.  In  fact,  by  increasing  the  value  he  would  be  but  innocently  increas- 
ing to  a  corresponding  amount  what  he  would  have  to  pay  by  way  of  dam- 
ages. In  other  words,  such  a  defendant,  by  his  labor  and  the  means  which 
he  expended  in  bringing  the  property  to  the  market,  has  given  it  nearly  all 
the  value  it  possesses ;  and  when  he  is  sued  and  responds  in  damages  to  the 
amount  of  such  increased  value,  he  has  then  paid  just  twice  the  actual  market 
value  of  the  property  in  its  improved  condition,  less  the  value  of  the  original 
timber  standing ;  once  in  giving  it  its  value,  and  then  paying  for  it  in  dam- 
ages according  to  the  very  value  which  he  gave  it. 

<<It  may  be  said  however  that  all  these  supposed  cases  are  exceptional 
and  extreme ;  this  may  be  true,  but  in  testing  a  supposed  rule  of  law,  we 
have  the  right  to  apply  it  to  extreme  cases  for  the  purpose  of  testing  its 
soundness ;  because  by  so  doing,  if  we  find  that  when  carried  out  it  would 
lead  to  gross  injustice,  and  would  not  at  the  same  time  subserve  any  useful 
purpose,  but  would  be  in  violation  of  other  well-settled  legal  principles,  we 
then  have  a  right  to  discard  it  as  being  unsound,  not  based  upon  sound  rea- 
son or  justice,  and  therefore  contrary  to  the  doctrine  of  the  common  law." 

"  There  is  another  class  of  cases  where  the  doctrine  which  plaintiff  seeks 
to  have  applied  would  work  gross  injustice :  a  person  honestly  and  in  good 
faith  obtains  possession  of  some  young  animal ;  he  may  have  purchased  it 
from  some  person  supposed  to  have  a  good  title  to  it,  but  who  in  fact  did  not ; 
or  he  may  have  purchased  it  at  a  judicial  sale,  where  on  account  of  some 
VOL.  XVII.  —  56 


882  MINES  AND   MINERALS. 


Hot.  85-87.  —  Martin  t.  Porter ;  Jegon  ▼.  VMtai ;  Job  t.  Potton.  — Votes. 

technical  defect,  the  title  did  not  pass ;  or  it  may  be  through  a  case  of  mis- 
taken identity  he  has  claimed  to  be  the  owner,  whereas,  in  truth  and  fact,  he 
was  not.  He  retains  possession,  feeding  and  taking  care  of  the  animal  until 
in  process  of  time  it  becomes  full  grown  and  immensely  more  valuable.  This 
time  may  be  longer  or  shorter,  depending  very  much  upon  the  kind  of  ani- 
mal. If  a  pig,  but  a  short  time  would  be  required ;  if  a  calf  or  colt,  a  longer. 
The  original  owner,  having  at  length  discovered  his  property,  demands  pos- 
session, which  being  refused,  he  brings  trover  to  recover  the  value.  Now, 
most  assuredly,  in  any  of  these  cases,  the  extent  of  the  injury  which  the 
plaintiff  sustained  would  not  be  the  then  value  of  the  animal.  He  has  not  fed 
it,  taken  care  of  it,  or  run  auy  of  the  risks  incidental  to  the  raising  of  stock ; 
all  this  has  been  done  by  another.  Why,  then,  should  he  recover  this  in- 
creased value  ?  And  why  should  the  result  of  the  labor,  care,  and  expense  of 
another  thus  be  given  to  him  ?  True  it  is  that  the  amount  involved  in  these 
cases  is  not  so  large,  but  the  principle  is  the  same. 

'  *<  It  is  sometimes  said  that  the  effect  of  the  view  which  we  have  taken 
would  be  to  compel  a  party  to  sell  and  dispose  of  property  which  he  desired 
to  retain  as  an  investment,  at  what  he  might  consider  an  inadequate  price, 
and  at  a  time  when  he  would  not  have  sold  it.  This  may  be  true,  yet  it  is  no 
more  than  what  happens  daily,  and  that  under  circumstances  much  more 
aggravating.  Take  the  case  of  a  wilful  trespasser :  he  cuts  the  timber  of 
another  into  cord-wood  and  bums  it ;  or  he  takes  his  grain  and  feeds  it ;  or 
cattle,  which  the  owner  prizes  very  highly,  and  butchers  them.  In  all  these 
cases  the  owner  has  lost  his  property,  and  the  law  cannot  restore  it;  the  law 
cannot  do  complete  justice ;  it  cannot  fully  and  completely  protect  and  guard 
the  rights  and  feelings  of  others ;  it  can  but  approximate  to  it ;  and  because 
the  owner  in  this  way  may  be  compelled  to  part  with  his  property,  and  thus 
a  wrong  be  done  him,  it  would  not  improve  matters  to  inflict  a  much  greater 
wrong  upon  another  equally  entitled  to  protection,  in  order  that  the  first  suf- 
ferer might  be  unduly  recompensed  thereby.  The  law  rather  aims,  so  far  as 
possible,  to  protect  the  plaintiff,  but  at  the  same  time  it  has  a  due  regard  to 
the  rights  of  the  defendants,  and  it  will  not  inflict  an  undue  or  unjust  pun- 
ishment upon  them,  in  cases  where  they  are  not  deserving  it,  as  a  means  of 
righting  an  injury,  especially  where  it  would  much  more  than  compensate  the 
owner  for  the  injury  he  sustained." 

Among  cases  denying  any  deduction  to  an  innocent  trespasser  for  his  labor 
and  expense  are,  Illinois,  Sfc.  R.  Sf  C,  Co,  v.  Ogle,  82  Illinois,  627;  25  Am. 
Rep.  342;  Barton  Coal  Co,  v.  Cox,  39  Maryland,  1;  17  Am.  Rep.  525;  Mc- 
Lean County  Coal  Co.  v.  Lennon,  91  Illinois,  561 ;  33  Am.  Rep.  64 ;  Franklin 
Coal  Co.  V.  McMillan,  49  Maryland,  549  ;  33  Am.  Rep.  280;  Blaen  Avon  C. 
Co.  V.  McCulloh,  59  Maryland,  403;  43  Am.  Rep.  560.  The  Illinois  cases 
allow  the  defendant  for  carriage  of  the  coal  from  the  pit  to  the  mouth  of  the 
mine,  but  the  Maryland  cases  do  not  allow  even  for  this.  None  of  these  cases 
contain  much  reasoning  of  the  matter  on  principle. 

Deduction  was  denied  to  an  innocent  purchaser  from  a  wilful  trespasser  in 
Poteens  v.  niley,  87  Maine,  34 ;  47  Am.  St.  Rep.  304  (see  note  44  Am.  St 
Rep.  447)  ;  Wright  v.  Skinner,  34  Florida,  453,  citing  Woodentcare  Co.  v. 
United  States,  supra.     In  this  Florida  case  the  rules  for  the  measure  of  dam- 


K.  C.  VOL.  XVII.]       SECT.  VII.  —  SPECIAL  RULES  AS  TO  REMEDIES.       883 

Hoi.  86-87.  —  lUxtin  ▼.  Porter;  logon  ▼.  VMui ;  Job  ▼.  Potton.  —  Kotoi. 

ages  in  trover  for  timber  cut  are  thus  laid  down :  (1)  In  case  of  wilful  tres- 
pass, the  full  value  with  no  deduction  for  labor  and  expense ;  (2)  in  case  of 
innocent  trespass  or  of  purchase  from  such  a  trespasser,  the  value  at  the  time 
and  place  of  the  first  conversion ;  (3)  in  case  of  innocent  purchase  from  a 
wilful  trespasser,  the  value  at  time  and  place  of  purchase. 

The  latest  decision  seems  to  be  in  Dyke  v.  Natumal  Transit  Co.,  22  Ap- 
pellate Division  (N.  Y.  Sup.  Ct.),  860,  where  it  was  held  that  the  measure  of 
damages  against  an  innocent  taker  of  oil  is  the  value  of  the  oil  as  it  lay  in  the 
earth.  The  Court  said :  "  This  judgment  is  a  violent  shock  to  one's  sense  of 
justice.  It  rests  mainly  upon  SiUbury  v.  McCoon,  3  N.  Y.  379."  "  The  dis- 
tinction is  between  a  wilful  trespasser  and  a  mistaken  one.  The  one  knows 
he  is  wrong,  and  the  other  believes  he  ia  right.  When  the  latter  is  shown  to 
be  wrong,  if  he  makes  full  indemnity,  justice  can  exact  no  more.*'  (Citing 
Livingstone  v.  Rawyards  Coal  Co.,  5  App.  Cas.  25.)  "  The  Courts  should 
refuse  to  assist  so  palpable  an  injustice,  or  to  sanction  extortion  under  the 
forms  of  law." 

Deduction  was  made  to  the  innocent  trespasser  in  Forsyth  v.  WelU,  41 
Penn.  St.  291 ;  80  Am.  Dec.  617 ;  Herdic  v.  Young,  65  Penn.  St.  176;  93  Am. 
Dec.  739 ;  GoUer  v.  Fett,  30  California,  482 ;  Cushing  v.  Longfellow,  26  Maine, 
306 ;  Weymouth  v.  Chicago  (r  N,  W.  By.  Co.,  17  Wisconsin,  650 ;  84  Am.  Dec 
763 ;  Swiji  v.  Bamum,  23  Connecticut,  523 ;  Heard  v.  James,  49  Mississippi, 
236 ;  Smith  v.  Gonder,  22  Georgia,  363;  Waters  v.  Stevenson,  13  Nevada,  157; 
29  Am.  Rep.  293 ;  Railway  Co.  v.  Hutchins,  32  Ohiq  St  671 ;  30  Am.  Rep. 
629;  Clement  v.  Duffy,  54  Iowa,  632;  Austin  y.  Huntsville,  j-c.  Co.,  72  Mis- 
souri, 525;  37  Am.  Rep.  446;  36  Am.  Rep.  770;  TUden  v.  Johnson,  62  Ver- 
mont,  628 ;  36  Am.  Rep.  769 ;  WhUe  v.  Yawkey,  108  Alabama,  270 ;  64  Am. 
St.  Rep.  159;  32  Lawyers'  Rep.  Annotated,  199;  and  the  distinction  was 
recognized  obiter  in  Dwight  v.  Elmira,  j-c.  R.  Co.,  132  New  York,  199,  202 ; 
28  Am.  St.  Rep.  563 ;  see  also  Winchester  v.  Craig,  33  Michigan,  205 ;  Michi- 
gan, j-c.  Co.  V.  Deer  Lake  Co.,  60  Michigan,  143;  1  Am.  St.  Rep.  491 ;  Gas- 
kins  V.  Davis,  115  North  Carolina,  85;  44  Am.  St.  Rep.  439;  25  Lawyers' 
Rep.  Annotated,  813;  Omaha  fi-  G.  S.  Co.  v.  Tabor,  13  Colorado,  41;  5  Law- 
yers' Rep.  Annotated,  236  ;  Stockbridge  Iron  Co.  v.  Cone  Iron  Works,  102 
Massachusetts,  80 ;  Foote  v.  MerrUl,  54  New  Hampshire,  490;  Wnght  v.  Skin^ 
ner,  34  Florida,  453. 

In  Michigan  the  test  seems  to  be  the  extent  of  the  labor.  So  in  Wetherbee 
V.  Green,  22  Michigan,  311 ;  7  Am.  Rep.  663,  where  an  innocent  trespasser 
cut  young  trees  worth  J25,  and  made  them  into  hoops  worth  $700,  he  was 
held  to  have  made  them  his  own;  but  in  Isle  Royal  M.  Co.  v.  Hertiny  37 
Michigan,  332 ;  26  Am.  Rep.  620,  where  an  innocent  trespasser  cut  cord-wood 
and  hauled  it  to  a  landing,  and  the  landowner  seized  and  sold  it,  it  was  held 
that  the  latter  was  not  liable  for  the  value  of  the  labor  of  the  former.  In 
Gates  V.  Boom  Co.,  70  Michigan,  309,  and  Busch  v.  Fisher,  89  id.  192,  it  was 
held  that  in  an  action  of  replevin,  "  a  trespasser,  however  innocent,  acquires 
no  property  in  logs  cut  on  the  land  of  another,  nor  lien  thereon  for  the  value 
of  the  labor  and  expense  of  cutting,  nor  can  he  recover  such  value  in  an  action 
of  trover  or  assumpsit ;  and  that  the  owner  of  the  timber  so  cut  has  the  right 
to  reclaim  the  logs,  if  he  can,  and  if  he  does,  the  trespasser,  though  cutting 


884  MISTAKE. 

MiiUke.    8m  Paymaiit ;  BaetiiloatUni. 

the  timber  in  good  faith,  has  no  claim  upon  the  owner,  either  in  a  legal  or 
equitable  sense ;  and  that  there  is  no  injustice  in  holding  that  such  trespasser 
must  lose  the  labor  he  has  expended  in  converting  another's  trees  into  logs." 
This  quotation  is  from  the  latter  case,  but  in  the  former  case  stress  was  laid 
on  the  fact  that  the  trespasser  was  negligent,  and  it  was  there  admitted  that  if 
the  owner  <*  sees  fit  to  bring  an  action  of  trespass  or  trover  instead  of  regaining 
his  property,  he  voluntarily  puts  himself  within  the  rule  of  damages  prevailing 
in  such  actions,  and  thereby  elects  to  receive  only  a  just  and  fair  compensation 
for  his  property  as  it  was  before  the  trespasser  intermeddled  with  it.'* 

The  present  writer  stated  the  rule  as  follows  in  26  Am.  Rep.  527 :  <<  Al- 
though, as  we  have  seen  from  the  principal  case,  one  cannot  demand  compen- 
sation for  his  voluntary  additions  to  the  value  of  another's  property,  without 
the  assent  of  the  owner,  in  an  action  for  the  value  of  what  he  has  thus  be- 
stowed, yet  where  he  stands  on  the  defensive  and  is  sued  for  the  value  of  the 
property,  he  will  be  compensated  for  such  additions  wherever  he  has  acted  in 
good  faith.  Thus  in  the  principal  case,  if  the  plaintiff  had  retained  posses- 
sion of  the  wood  and  forced  the  defendant  to  sue  for  it  or  for  damages  for 
its  conversion,  he  would  have  received  the  advantage  of  what  labor  he  had 
bestowed  on  it  in  fitting  it  for  market.  This  is  certainly  the  law  in  this 
country  in  trespass  and  trover,  and  in  replevin  where  the  property  itself  is 
not  recovered.    The  rule  as  to  a  wilful  trespasser  is  undoubtedly  different." 

The  subject  is  very  extensively  examined  by  Sedgwick  and  by  Sutherland, 
the  two  leading  American  writers  on  Measure  of  Damages.  The  former 
writer  says :  "  By  the  prevailing  view,  the  defendant,  if  he  acted  in  good 
faith,  is  allowed  the  value  of  his  labor ;  that  is,  the  measure  of  the  damages 
is  the  value  of  the  property  as  it  was  just  before  the  defendant's  wrongdoing 
began."  "  In  some  jurisdictions  the  rule  is  held  to  be  different  according  to 
the  form  of  action ;  the  plaintiff  in  trover  being  allowed  the  whole  value  of 
the  property  as  increased  by  the  defendant's  labor,  while  in  trespass  he  is 
confined  to  the  damage  done  to  the  realty.  Omahay  frc.  R.  Co.  v.  Tabor,  13 
Colorado,  41;  Skinner  v.  Pinney,  19  Florida,  42;  46  Am.  Sep.  1;  Foote  v. 
Merrill,  54  New  Hampshire,  490 ;  20  Am.  Rep.  151."  The  leading  case  on 
accession  in  this  country  is  Silsbury  v.  McCoon,  3  New  York,  379;  53  Am. 
Dec.  307,  where  com  was  converted  by  a  wilful  trespasser  into  whiskey,  and 
the  product  was  held  to  belong  to  the  plaintiff. 

Job  V.  Patten  is  cited  in  Freeman  on  Co-Tenancy,  sect.  249  a. 


MISTAKE. 

Payment  by  Mistake,  and  Rectification,  post. 

END   OF  VOLUME   XVII. 


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