the nature of the metals and substances which are discovered, but also to the circumstances under which they are produced. It would be impossible, therefore, to lay down any general rule.

It also sometimes happens, that fines or premiums are payable on the removal or grant of a lease of mines, either instead of, or, as is more usual, in addition to the annual rents.

It may be observed, that when there is a demise generally of all metals and minerals, the reservation should correspond with the different substances demis ed. The render is generally adapted to what is known or supposed to be discoverable in the laud, but it may easily happen that, under a general demise of the minerals, other substances besides those which may be mentioned in the clause of reservation, may be met with, and these might be worked without any profit accruing to the lessor. If, on the other hand, there was a general proportion specified for all minerals found within the limits, it might still happen that many kinds of substances would be worked with injury either to the lessor or lessees. Thus, a render of the average amount of lead duty for copper would subject the lessee to much harder terms than are usual in such cases, and the contrary would prove equally disadvantageous for the lessor. As a general rule, it may be observed, that there should be either no general demise of minerals, without providing for the proper amount of rent in each case, which, with respect to all but the leading and most valuable minerals, may be done in general terms, or the amount of rent should be such as sufficiently to protect the lessor, whatever may be the result of the discoveries. Lessees, in general, know with tolerable exactness, what description of substances they may expect to meet with in the course of their enterprize, and will generally take care that these substances are included in the grant, and that the rent reserved is not beyond the usual amount. If other minerals than those anticipated by the lessor are found, although they will by the general description be in the possession of the lessee, yet if the duty payable should prove to be above the usual amount, the lessor will still have it in his power to control the proceedings of his lessees, or to receive an ample remuneration.

It is proper when duty ore or metal is reserved for rent, that the lease should sufficiently express the time and manner of delivery to the lessor. This may be expressed either in the reddendum or in the covenants afterwards entered into, or in both, but it should always be contained amongst the covenants; and the reddendum may refer to the covenant for the mode of delivery.

When lands are demised with the mines, it is usual to reserve a surface rent without reference to the mines.

We are now come to the consideration of the Covenants, by which the grants may be restrained, modified, or regulated; for it is a general rule,

that he who has the jus disponendi may attach any conditions to his grant which are not unreasonable, repugnant, or illegal.

As the law regards only the intention of the parties as expressed by their deed, no particular form of words has been held necessary to constitute a valid covenant. (a) A recital of that intention even in the preceding part of the deed has been held sufficient. Thus, in the lease of a coal mine, it was recited that before the sealing of the indenture, it had been agreed that the plaintiff should have the part dug. It was decided by Lord Chief Justice Hale, that this amounted to a covenant. (b)

A covenant, like a grant, in cases of doubt, is always taken most strongly against the person making it. (c)

Many covenants will be implied by law, as for the payment of rent, and for the quiet enjoyment of the lessee

The usual covenants common to al! well drawn mining leases, on the part of the lessor, are the following:-That he will prosecute the adventure by opening pits or shafts, driving levels, and making effectual trials, and will use his best exertions for the discovery and attainment of the minerals, and work the mines in a proper and workmanlike manner-in coal mines, that he will raise certain quantity of tons per week, and pay the stipulated rents and taxes-in metallic mines, that he will employ at least a certain number of experienced workmen before the discovery of the veins, and at least a certain additional number afterwards, that he will remove the washed ore to a storehouse to be weighed in the presence of the parties, or their agents, and deliver the duty ore or metal to the lessor or his agents, at specified places and periods-that he will allow the lessor and his agents to inspect the works, and in case the mines are not worked in a proper manner, give such satisfaction and damages to the lessor as shall be decided by arbitration ; that he will provide proper books and accounts of the quantity produced, to be at all times open to the inspection of the lessor and his agents, who may take copies and extracts from them-that he will give up the possession of the mines in good condition at the end of the term, and for the payment of damages occasioned by the mining operations and works.

The usual covenants on the part of the lessor are for title, and for quiet enjoyment.

The remaining intentions of the parties are usually effected by provisoes or conditions. These differ from covenants in this respect, that they are binding on both parties, and a covenant only binds the covenantor. It may

(a) Holder v Taylor, 1 Rol. Abr, 518. 1. 19. 41. Bush v. Coles, Carth. 232. See Russell v, Galwell, Cro. Eliz. 637.

(b) Severn v. Clark, 2 Leon. 122, See Hollis v. Carr, 2 Mod. 87. Duke of Northumberland v. Errington, 5 T. R. 526. Saltoun v. Houston, 1 Bing. 433. Sampson v. Easterby, 9 Barn. and C. 505. 6 Bing. 644. 4 Moore. and P. 601. 1 Crompt. and J. 105.

(c) Bac. Abr. Cov. F.

often, however, be preferable to have also mutual covenants. When there is no penalty affixed to the non-performance of it, as a clause of re-entry, it will amount to a covenant. (a) A proviso, indeed, in many instances, will operate as a covenant. The usual provisoes are, that the lessor is to have the option of purchasing the tools, materials, and machinery, at a fair valuation, or otherwise the lessee is to be entitled to remove them-for re-entry or non-payment of the rent, or on the non-performance of the covenant and stipulation on the part of the lessee-and for referring all disputes to arbi

tration.

Such may be considered to be the usual contents of a mining lease; but there are few occasions which do not demand more particular explanations and agreements.

For instance, in leases of coal mines, it is frequently expressed that during any suspension of the works by any inevitable accident, the rents shall cease to be payable, and that in case of a partial suspension the rents shall be apportioned that the lessee shall work the mines in a specified manner, and level the ground, ând fill up all useless pits-that the rent shall be payable in a certain manner, by bills or other means, and that when the coal is exhausted, the term shall cease.

Again in general leases of mines, it is frequently expressed, that the mines may be shown, within a certain period from the termination of the term, to persons who may be desirous to become the tenants, and take demises of them that the lessee shall not take any person into his service who may gain a settlement in the parish-that the lessor, if required, will grant a new lease to the same party-that the lessee shall erect certain buildings for particular or general purposes, and certain steam engines of defined. power and application, and other works and machinery-that the mine shall be worked in a certain prescribed manner; and the levels, way gates, and passages be secured from injury by arching or other particular means. In short, all other purposes which may seem to be demanded on the occasion, must be stipulated for by the express covenants or agreements of the parties.

SECTION II.

CONSTRUCTION OF LEASES.

It will be proper, under this head, to mention the decisions which have taken place with respect to the working of mines under leases.

The terms of a demise which contained a condition or covenant to work mines as far as they ought to be worked, have been held to be satisfied by the lessees having made sufficient trials to show that there are no mines at all which ought to be worked.

(a) Doe dem, Wilson v. Phillips, 2 Bing. 13. 9 Moo. 46. See Simpson v. Titterell, Cro. Eliz. 242. See supra, page 143, and Doe d. Antrobus v. Jepson, 3 Barn. and Ad. 402.

Thus, several mines of coal in Lancashire were demised, subject to a covenant that the lessees would forthwith proceed to sink for coal, as far as could and ought to be accomplished by persons acquainted with the nature of collieries, and as in such cases was usual and customary, and immediately erect such fire engines as should be necessary for the above purpose before the 24th of June, 1806, or in default, to pay to the lessor such a sum as should be fixed by arbitration. Disputes arose soon afterwards, which were accordingly referred to arbitrators, who awarded that the lessees had not performed their covenants in the lease, inasmuch as they had not proceeded to sink for the coal in the manner mentioned in the lease, and had not erected the fire engines at the time appointed, and that in consequence of such non-performance, the lessees should pay to the lessor £150 for rent for the year ending in June, 1807; that the lessees should work the mines, and erect the engines before the 24th June, 1807, and, in default, that they should pay to the lessor the yearly rent of £200 as a compensation for the lord's rent reserved by the lease; and that as soon as the pits were sunk, and the engines erected, the rent should cease, and the lessees should pay the rent reserved by the lease, and when it should exceed £200 they might retain the excess until they had reimbursed themselves what had been paid for compensation before the colliery was begun to be worked. The lessees paid the £150, and before June, 1807, they proceeded to sink for coal. They afterwards desisted, and an action was brought by the lessor, to which the lessees pleaded that they would have continued to work the mines, and would have erected the engines, but that there were no mines of coal in the lands which ought to be worked by any person acquainted with the nature of collieries, or which it was, in such cases, usual, to work, or which would have defrayed the expense of working, and that they had ascertained the truth of these statements by sufficient experiments and trials. It was contended for the lessor, that it was no answer against the award of the umpire as to the breach of the covenant, for the lessees to say that there were no coals, or none worth the expense of getting. But it was held by Lord Ellenborough, C. J., that though it might be no answer to the damages awarded for the breach of the covenant for the time past, in not trying to get the coal, yet it was an answer to any further breach that they had tried as far as they could and ought to do in the judgment of persons of competent skill in such works, and as far as was usual and customary in such cases, and that no coal could be gotten. It was found upon competent trial to be impossible to get any coal fit to be worked, and no person could be bound to do impossibilities. It was suggested, however, by Bayley, J., that it would be better for the plaintiff, if the case would bear it, to take issue upon the sufficiency of the experiments made by the defendants; and leave was given to amend for that purpose, otherwise judg ment would be given for the defendants. (a)

(a) Hanson v. Boothman, 13 East. 22.

In a similar case it was also held, at nisi prius, that when a tenant is bound to work a coal mine, as long as it was fairly workable, he is not compellable to work the mine at a dead loss. It was proved that there were coals in the mine, but of such a description as would not yield any profit by working them. (a)

Questions of this nature are of course, properly for the consideration of a jury; but if there be any fraudulent delay on the part of a lessee, the Court of Chancery will interfere and order him to pay the rent which would have accrued, if the mine had been properly worked.

A rent of £600 was reserved in a lease of coal mines, the first quarter's payment of which was to be made at thenext feast after the lessee should have worked one thousand stacks of coal. There was a covenant by the lessor that he would dig the thousand stacks of coal without delay, and in a reasonable time, and that he would dig the pits in a workmanlike manner, and level the pits with the gin pit, viz., the pit where the engine is to carry away the water. There was a mutual covenant that the lessee might, on giving six months notice, determine the lease, on payment of all rents due and performance of the covenants. The lessor entered, and afterwards gave six months notice, by which he insisted that the lease was determined at Christmas, 1723. The lessor filed a bill in chancery, alleging that the defendant, after having entered, had worked before the first quarter day the thousand stacks of coal, except a small quantity, and had employed his workmen in other works, telling some of them that he was not such a fool as to pay a quarter's rent for a few days' work, and insisted that the first quarter's rent ought to have been paid at Lady Day, 1721. The Bill prayed a specific performance of the covenants, and that the lease might continue for twenty-one years, because the power to determine by notice was conditional, viz., on paying the rent and performing the covenants, which he had not done, for the pits were not levelled with the gin pit, and were overflowed with water, and rendered of no service to the lessor. It was contended for the lessee, first, that the Bill ought to be dismissed, because the plaintiff, if injured, might have his remedy at law, and secondly, that it was a question for the consideration of a jury whether the lessee had performed his covenants. Lord Chancellor King agreed with the counsel on the second point, for if the defendant had not performed his covenants, he could not then determine the lease, and if that was still subsisting, which was a fact for a jury to try, an action laid for the rent. But as to the first point, though the plaintiff might indeed have remedy by an action of covenant, upon the collateral covenant to dig the coal without delay, yet there was fraud in preventing the digging before the quarter day, in order that the rent might not commence so soon, and this fraud required the interposition of the Court. It was, therefore, decreed that the defend. ant should pay the first quarter's rent due at Lady day, 1721, and account and pay the rent to Christmas, 1723, till which time the defendant allowed the (a) Jones v. Shears, 7 Carr, and P. 346. Per Coleridge, J.