was put in; by which the Defendant, submitting, that for the reasons, and under the circumstances before stated, he ought not to be compelled to give a particular account, relating to the trade, carried on by him separately, has however set forth in a Schedule a list of books, in which are contained all the letters, &c. relating to that separate trade. The short result is therefore this. The Plaintiff, stating a partnership, formed upon certain terms, contained in a written correspondence, contends, that the meaning of the parties was, that no trade should be carried on with Russia except on the joint account; alleging, that the Defendant did, in fraud of that agreement, and concealing the fact, carry on a separate trade, not only with Anderson and Co. but originally, contrary to the agreement, with other persons; insisting, that this conduct of the Defendant was in both its branches a direct violation of the agreement; giving the Plaintiff a right to a moiety of the profits. The course, taken by the Defendant, is not to demur or plead, but to state by answer, that, * according to the true construction of the letters, contain- [* 389] ing the terms of the agreement, he had full liberty to carry on this separate trade; that afterwards, not choosing to rest upon that any longer, he carried it on with the leave of the Plaintiff'; and that is not a mere general assertion; but it is made with reference to the letters. The Defendant says, that he will, though the Plaintiff is not entitled to the discovery, state that, the Defendant, having that license, did trade, at a considerable profit; that he kept books and accounts; referring to, and setting forth by a Schedule, the books, which he has; yet by the same answer refusing to permit the Plaintiff to look at them. As to the conclusion of fact, it is by no means clear, that the Defendant had any right to trade with other persons: but upon the letters, considered as an agreement, the far better opinion is, that he had no right to trade separately with Anderson and Co. If the answer had contained a clear, positive, unequivocal, averment of the Plaintiff's acquiescence and permission, the question, whether the Defendant was bound to make the discovery as to the fruit of it, would fairly arise: but the utmost amount of what appears is a special consent to send a small quantity; which can never be represented as a general acquiescence in an unlimited trade, contrary to the general obligation. The result is, that here is not averment positive enough of the ground, upon which the Defendant can refuse to answer; that the manner, in which he states his objection, makes it impossible for the Court to decide, that he shall give no farther or other answer, according to the language of pleading; and upon the whole, as he has put his defence upon the Record, he cannot refuse a production of the books, contained in the Schedule. SEE note 2 to Jerrard v. Saunders, 2 V. 187; the notes to The Marquis of Donegal v. Stewart, 3 V. 446; note 1 to Bayley v. Adams, 6 V. 586; and the note to Jones v. Davis, 16 V. 262. SEAMAN v. VAWDREY. [ROLLS.-1810, FEB. 16, 19.] RESERVATION of salt-works, mines, &c. in 1704, with a right of entry, though no instance of any claim, and the title had been transferred in 1761, without such reservation, upon the usual covenants, held an objection, giving a right to compensation; the purchaser not insisting upon it farther (a). The inference of abandonment of a right from non-user not applicable to the case. of mines, [p. 392.] Whether under a mere reservation of Royal Mines, without a right of entry, the Crown can grant a license to enter on the land for the purpose of working them, Quare, [p. 393.] 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 (describing 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 any thing, 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, (1); 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 (a) Courts of Equity will not compel a purchaser to take a doubtful title. See, ante, p. 272, note (a) Stapylton v. Scott. (1) 2 Atk. 19. VOL. XVI. 17* 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.-The non-user of this right proves nothing: the object of such a reservation being, that the party may have the power of exercising 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 possession in this instance was not inconsistent with the right claimed: as in the case of a right of way. 1810, Feb. 19th. The MASTER OF THE ROLLS [Sir WILLIAM GRANT]. The deed of 1704 contains an express and unequivocal reservation of all mines and veins of salt, that might be contained in the estate of Ravenscroft. 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 became [392] 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 circumstances, from which that presumption is to arise. No adverse possession is alleged. The owner of the soil has had the enjoyment, 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 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 ex tinguished; though there is no evidence of the exercise of it since the year 1704 (1). [* 393] *The case of Lyddall v. Weston (2), instead of being an authority for the Defendant, appears to me to afford an argument by implication against him. 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 license 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 case of mines in Plowden (3). 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 (4). 1 As to the respective rights of lord and tenant, to work old or new mines, see, ante, note 1 to Grey v. The Duke of Northumberland, 13 V. 236. 2. That a vendee who chooses to have a purchase-contract executed as far as that is practicable, with a compensation for deficiencies, is entitled to that equity, see note 6 to Cooper v. Denne, 1 V. 565. SHIRT v. WESTBY. [1808, Nov. 8.] CHARGE by Will on real estate of simple contract debts of another person considered as a legacy, carrying interest from the death of the testator at 4 per cent. (a). JOHN HIRST by his Will, dated the 20th of June, 1795, directed, that all his just debts and funeral expenses be paid and discharged by his executor out of his personal estate; and, in case [*394] that should prove deficient, he thereby charged and subjected his real estate to come in aid of and supply such deficiency. Then having charged his real estate with the payment of some annuities he gave and devised all his real estate to his eldest (1) Post, vol. xix. 156, 9. (2) 2 Atk. 19. (3) Plowd. 310; see 336. (4) Calcraft v. Roebuck, ante, vol. i. 221; and the note, 226. (a) The testator is considered as adopting these debts as his own. 2 Williams, Exec. 1022. son John Hirst, his heirs and assigns; and also gave him all his personal estate; and appointed him sole executor. John Hirst the younger, having survived his father, by his Will, dated the 11th of October, 1802, directed the payment of his debts in the following manner : "First, I will that all my just debts and funeral expenses be paid satisfied and discharged by my executrix hereinafter named out of my personal estate and in case that shall prove deficient I hereby charge and make subject my real estate to come in aid of and supply such deficiency." The testator then, charging his real estates in the county of York with the payment of some annuities, devised all his estates so charged, and all other his estates in the said county or elsewhere in Great Britain, to his sister Catherine Westby for life, with several remainders over to other persons in strict settlement, subject to a trust term for raising 60007.; which he disposed of by his Will; and proceeded thus: "And I do hereby charge and make subject and liable my real estates situate within the township of Kimberworth to and with the payment of the following sums of money or such of them as shall be unpaid and undischarged at the time of my decease and which are the debts of my late brother James Hirst deceased: to Sarah Jackson of Wath upon Lerne in the said county the sum of * 300l."; specifying the other persons and sums in the same manner; and he appointed his sister Catherine Westby his sole executrix. [*395] The testator died in the year 1804. The Bill was filed by creditors of John Hirst the elder, and of James Hirst, on behalf of themselves and all the other creditors; and, the cause coming on for farther directions upon the Master's Report, under a Decree, directing the necessary accounts, the question was, whether the debts of James Hirst, remaining undischarged, at the decease of John Hirst the younger, which were ascertained by the Report at the sum of 12597. 19s. 6d. should bear interest under the charge in his Will for payment of them. That question was expressly reserved by the De cree. Sir Samuel Romilly and Mr. Heald, for the Plaintiffs, contended, that these debts, directed to be paid by a person, not under any obligation to pay them, were to be considered as legacies: and being charged upon a fund, producing an annual income, ought to carry interest. Mr. Richards, Mr. Alexander, Mr. Hall, and Mr. Heys for the Defendants, insisted, that this is a mere question of intention; whether the testator has made a voluntary gift; or meant to put himself in the place of his brother; merely doing an act of justice by paying his brother's debts; as he, if living and solvent, would have done. A devise to pay the debt of another, cannot be considered as a legacy: a debt can carry interest only by the nature of the contract, |