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rents may be
paid by bills of
exchange on

Bills, if honoured, to be taken during life of tenant for life in payment of rent.

it is hereby declared and agreed, that the rents and sums hereinbefore reserved may be paid by bills of exchange drawn by the said G. H. and I. K., their executors, administrators, or assigns, and made payable in London at seven days after sight, either to the said E. F. or to other the person or persons for the time being beneficially entitled to the reversion of the premises hereinbefore demised, or expressed and intended so to be, such of the said bills as shall be drawn for the payment of any rents or sums of money which shall have been reserved, or have become payable in respect of slate actually shipped at the port of aforesaid, or any other port, to bear date respectively on the days on which such slate shall be actually shipped, and such of the said bills as shall be drawn for the payment of any rents or sums of money which shall have been reserved or become payable in respect of slate actually sold or disposed of, but not intended to be shipped, to bear date respectively on the days on which such slate shall be removed from the said premises hereby demised; and such of the said bills as shall be drawn for the payment of any rents or sums of money which shall have been reserved and become payable in respect of any slate which may not be actually shipped, or sold or disposed of, to bear date respectively on the days on which such last-mentioned rents or sums of money are hereinbefore made payable: And It Is Hereby further declared and agreed, that if such bills of exchange as aforesaid, and every of them, shall be duly honoured and paid when the same shall respectively become due and payable, then and in such case the person or persons who, during the life of the said E. F., shall be entitled to such rents and sums of money, shall and will accept and take such bills in satisfaction and payment of the rents and sums of money hereinbefore reserved (A), and in respect

As to the pay- (A) Although the rout reserved is to be paid in a peculiar manner, me°t °* rent °y as in the case in the text, it should still be reserved in the usual method in the body of the lease, and the peculiar stipulations introduced by way of proviso. For the opposite course will induce the necessity of making alterations in all the clauses referring to the payment of rent, and almost precludes the parties from making the permission to pay the rent in the manner stated dependent on the due observance of the condition. In the present case, the reservation of a rent, to be

change, and other peculiar methods.

of which the same shall respectively be drawn. NESS &c. (t).

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paid by bills of exchange, would probably have been so contrary to the intent of the power under which the lease was granted, as to have rendered it invalid ; but by limiting this mode of payment to the lifetime of the tenant for life, all danger of that nature is obviated.

($) The principal cases relating to mines and minerals are briefly stated or referred to ante, Vol. 3, p. 393 et seq.; Id. p. 405, n. (#). The cases otDearden v. Evans, 6 Mee. & Wels. 11, (relating to stones embedded in copyhold lands) ; Harris v. Byding, Id. 60, (as to what is a reasonable working by a mine owner, as regards the surface owner); and Arhoright v. Gell, Id. 203, (relating to the right to an artificial stream created for mining purposes), have been reported since the publication of that volume.

It is proposed in the present note to refer to the chief cases respecting leases of mines and minerals.

A lease which gives an exclusive interest must be distinguished from a mere license; thus, a grant that it shall be lawful for a man, his heirs and assigns, at all times to enter upon the lands to search and dig for coal, is only a license, and conveys no interest so as to enable the grantee to exclude the grantor from getting coal. (Chetham v. Williamson, 4 East, 469; S. C. 1 Smith, 278). And where the owner of the fee, by indenture, granted to A. and his partners liberty to dig for metals throughout certain lands, with specified powers of working, excepting to the grantor certain liberties for driving adits, and conveying watercourses in and over the premises thereby granted, to hold the several liberties, licenses, &c, for the term of twenty-one years ; and in the indenture were contained covenants by the lessee for payment of a royalty, and other covenants, and a proviso for re-entry on non-performance of the covenants, it was held that this deed was a mere license, and that the grantee could not maintain ejectment for the mines not connected with his own workings. {Doe d. Hartley v. Wood, 2 B. & Aid. 724; see, too, Roberts v. Davey, 4 B. & Ad. 666; S. C. 1 Nev. & Man. 443; Muskett v. Hill, 5 Bing. N. C. 694; see, too, ante, Vol. 3, p. 394). But such a license is assignable; (Muskett v. Hill, ubi supra); and the assignee may sustain an action on the case for disturbance. (Id.) But whether a covenant relating to such an interest would run with the land, is doubtful. (Id. p. 708).

A lessee of lands in which there are mines unopened cannot open them, for that would be waste; but if the mines be open at the date of the lease, the lessee may work and take the profits of them. (Sounder's case, 6 Rep. 12; Co. Litt. 54. b.)

And if the owner of lands, under which are mines, none of them opened, lease the lands and all mines therein, the lessee may work the

General law as to mines and minerals.

Leases of mines and minerals.

Lease distinguished from a license.

Rights of a lessee of lands as to the mines therein;

—and of a leasee of lands and mines;


—and of a lessee without impeachment of waste;

—and of a lessee under a power.

As to the reservation of a proportion of the minerals by way of rent;

mines. (Id.) But if some of the mines are open at the date of the lease, the lessee can only work those which are open, and is debarred from opening new mines. (Co. Litt. 64. b.; Astry v. Ballard, 2 Lev. 185; S. C. 2 Jon. 71; 3 Keb. 709, 723, 761, 765, &c.; 2 Mod. 193; see, too, 2 Ventr. 342). The lessee cannot, however, take timber for working mines which he is entitled to work. (Co. Litt. 63. b. n. (1)). And, of course, if a lessee open a mine which he is not entitled to open, his assignee cannot work it; nor can a lessee except out of an assignment the profits of a mine which he has no right to work. {Sounder's case, 5 Rep. 12). It is apprehended that a lessee for years may make such new shafts and other works, as may be convenient, for working any mines which he has a right to work. See ante, Vol. 3, p. 396, as to the rights of a tenant for life in respect to mines.

A lessee, without impeachment of waste, may open and work mines at his own discretion; (Co. Litt. 220. a. n. (1) * ;) but it seems that he has no right to carry away the soil, as by taking it for brick making; and a court of equity will restrain him from so doing by injunction. (Bishop of London v. Webb, 1 P. Wms. 527 ; see, too, Harris v. Ryding, 5 Mee. & Wels. 60; Dearden v. Evans, 6 Mee. & Wels. 11).

A court of equity will, in the case of mines, assist the reversioner by decreeing an account against the tenant, even if an injunction cannot be had. (3 Atk. 264; ante, Vol. 3, p. 397). Under a power contained in a settlement to lease for twenty-one years " lands, tenements, and hereditaments" open mines may be leased, but not those which are unopened; (Campbell v. Leach, Amb. 740); but on a lease under the power, of mines generally, the lease will be good as to the open mines, if the rent reserved be a proportionate part of the minerals raised. (Id.)

It is not unusual to reserve a proportion of the minerals by way of rent; and it appears by the case of Campbell v. Leach, ubi supra, that such a reservation is valid in a lease under a power. Care should be taken to make the rent payable in respect of all the minerals actually sold or disposed of, however or wherever such sale or disposition may take place. For where the lessee of a colliery covenanted to pay a proportion of all such sums of money as the coal should sell for at the pit's mouth; it was held that he was not liable under that covenant to pay any part of the monies produced by the sale of coals elsewhere than at the pit's mouth; and that evidence of payments having been made in respect of coals so sold was not admissible for the construction of the covenant. (Clifton v. WalmesUy, 6 T. R. 564). It was suggested by Lord Kenyon, in giving judgment, that the conduct of the lessees might possibly be a fraud, and that perhaps a court of equity would give the lessor some relief. But this is very doubtful. In the lease of a colliery, there was a covenant by the tenant to pay as rent " one third part of the money that should arise, be made, received, or produced from the sale of the coals;" and also to keep "true

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accounta of all coal daily raised, and to make and deliver true copies thereof" to the lessor; and it was held, that, taking the two covenants together, the rent was to be calculated on the amount of coal sold, and not on the amount of money actually received. {Edwards v. Rees, 7 Car. & Pay. 340).

In a case in which the rent in a colliery lease was to commence on the first quarter day after a certain quantity of coal had been dug, the Court of Chancery decreed that it should be paid from the quarter day prior to which that quantity would have been dug, but for fraudulent delay by the lessee. (Green v. Sparrow, 2 Swanst. 408).

Searching for mines is an uncertain adventure; and therefore it is —as to reasonusual in leases of unopened mines, if the rent is to depend on the mi- aD'e working of nerals raised, to bind the lessees to make due search for the mines. mlnes, For, otherwise, the lessor might be excluded from all benefit from bis mines through the default of the lessee. It is, of course, a matter of fact to be determined by a jury, whether the operations of the lessees have been sufficient according to the terms of their obligation. (Hanson v. Boothman, 13 East, 22). Where a tenant agreed to work a coal mine, so long as it was " fairly workable," and there were coals in the mine, but of such a description that it would not pay to work them; it was held that the tenant was not bound to work the mine. (Jones v. Shears, 7 Car. & Pay. 346). And where a down was let by an instrument not under seal, for the purpose of digging for copper ore, an action for use and occupation may be maintained if the lessee take possession; and if he has once taken possession, he is liable to all subsequent rent until the determination of the tenancy, whether he has continued to work the minerals or not. (Jones v. Reynolds, 7 Car. & Pay. 335). But merely digging holes, with a view to ascertain the nature of the land, is not taking possession. (Ib.; see, too, Harris v. Ryding, 5 Mee. & Wels. 60).

But if there be a power of re-entry after a notice to be given to Reservation of the persons who undertake to work the mines, the form of that notice power to the must be strictly observed. Thus, where a license to mine was granted, ^'g'^Jet^r" with a covenant by the licensee to mine, and search for all mines and the mines are minerals within the limits, and effectually to work according to the not duly worklaws of good mining, and a proviso, that if the grantee, after notice so to work, failed to keep six miners at work, and if notice in writing should be fixed within the limits, of the grantor's intention to avoid the license because of such failure, then, after the expiration of one month from the affixing of such notice, it should be lawful for the grantor to re-enter, &c.; and the grantor gave a notice to the grantee, that unless he kept six miners at work the grantor would re-enter at the expiration of a month, it was held that such notice did not avoid the license, or render the grantor's re-entry lawful. (Muskett v. Hill, 5 Bing. N. C. 694). Where there was a proviso determining the lease if the tenant should, at any time, cease working two years; and he

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Mining lease,



did cease for two years, and the lessor afterwards received rent, it was held that the lease was only voidable at the option of the lessor, and that he might avoid the lease upon any cesser to work, commencing two years before the day of the demise in the ejectment. (Doe d. Bryan v. Bancks, 4B. & Aid. 401).

A mining lease taken by several persons for the purpose of working the mines in partnership, is partnership property. (Fereday v. Wightwwik, I Russ. & My. 45 ; see ante, Vol, 3, p. 508, n. (c).


Collieries LEASE by a Dean And Chapter of Collieries

and Way-leave, at Rents certain, and Ton


nage Rents varying for different Parts of the Term. Special Powers of Distress and Re-entry. Proviso for making up a DefiCiency in the Quantity of Coals for which a Rent Certain is payable. Coals used in Collieries to be Rent-free. Covenants by the Lessee not to Assign without Licensefor Working the Colliery properlyfor keeping Accounts of the Quantities of Coals—for allowing the Lessors to Inspect and MeaSureand several other Covenants adapted to Leases of Collieries. Covenants by the Lessors for Quiet Enjoymentthat Lessees may remove Coals and Machinery after ExpiRation of TermLessors to have the Option of purchasing Machinery. Power to the Lessee to Determine the Term at the End of any Third Year. Arbitration Clauses.

Parties. THIS INDENTURE, made &c, Between The Right

Reverend Father in God, A., Lord Bishop of , Dean,

and the Chapter of , of the Cathedral Church of

Witnesscth » [^*sors]> of the one part; and C. D., of &c, [lessee],

Consideration. of the other part: WITNESSETH, that, in consideration

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