attorney; or for a special purpose. In practice, however, a general deputation of authority is not usually resorted to. It would confer too great authority upon agents to invest them with the power of creating any interest whatever in the mines which may lawfully pass from the grantor, and upon any terms they may think proper. Special powers are, of course not liable to the same objection, and are adopted in cases when, as in other transac tions, the signature of the grantor cannot be conveniently obtained at the proper time and place.

2. The exception contained in the second section cannot be said to have any practical reference to mines; for, though the duration of interest might be made to correspond with the requisitions of the exception, it can never happen that lessees would agree to give two-third parts of the full improved value of the thing demised. The profits of mines in general are too valua ble ever to admit of any reservation to that amount. The usual render with respect to all minerals is of very much less amount; and after great expenditure of capital, time, and labour, a rent of two-thirds of the profit of a mine in its most prosperous condition would form a most disproportionate deduction from the returns of an adventure which, in almost all cases, is uncertain in its results. Even in the demise of quarries and open workings, the labour of getting and disposing of the stone or mineral must always be too great to justify so large an amount of rent.

3. It has been already observed, that the operation of the third section extends to all cases within the meaning of both the first and second. All leases and other interests, therefore, in mines and minerals, whether originally created by writing, or subsisting by parol under the second section, must be assigned and surrendered in writing, by the party himself, or by an agent lawfully authorised by him in writing, as in the first section.

But the assignment or surrender need not be by deed. A note or any writing to that effect so signed by the party or his agent will be suffi cient, (a) but it must be stamped.

4. The fourth section, so far as relates to our present purpose, is confined to any contract or sale of lands, or any interest in or concerning them. For it is quite clear that the words in the remaining part of the section " or upon any agreement not to be performed within a year," does not extend to an agreement concerning lands. (b) And it is equally clear that this section contemplates in its operation not only the origin of a contract, but also all transfers of subsisting interests. (c)

But this section differs materially from the preceding ones in not requiring the authority of an agent to be in writing. It follows, therefore, that though no agent can pass a legal interest under the first and third sections, unless

(a) Farmer v. Rogers, 2 Wils. 26.

(b) Hollis v. Edwards, 1 Vern, 159. Bracebridge v. Heald, 1 Barn, & Ald. 722.

(c) Anon. 1 Ventr. 361. Poultney v. Holmes, 1 Str. 405.

their authority, however lawful, be evidenced by writing, yet, under the fourth section, they may, if otherwise lawfully authorised, bind their principal by creating or transferring in writing an equitable interest in fieri without being authorised by writing. The extent and nature of this authority will be noticed presently.

A license to work mines is very distinguishable from a lease of mines. The former is an incorporeal hereditament, a mere right, which, in some instances may be revocable, in others, not exclusive of the similar rights of others, and, in all cases, only confers a right of property in the minerals when they have been severed from the freehold, and taken into the possession of the party. A lease, on the other hand, is a distinct conveyance of an actual interest in the thing demised, the right to which attaches even before the substance is extracted or taken. The difference in the creation and properties of a license and a lease will be discussed in the next chapter.

A license or liberty to work mines is very usual in mining countries. When an adventure is entered upon, a regular lease is not always obtained, till the prospects of the enterprise promise such results as may require a more particular arrangement; and the mine is, in these cases, often worked under a license. It becomes, therefore, very important to ascertain whether such a license be within the Statute of Frauds.

It is submitted, that licenses of this description are directly within the meaning of the statute, and that this opinion rests upon reasons very different from those applicable to some of the cases which have been decided upon the subject of licenses generally.

It has, certainly, been held that a mere license is, in some instances, not within the first, and by implication, the fourth sections of the statute.

A parol agreement was entered into for liberty to stack coals on part of a close for seven years, and, during this term, the person to whom it was grant ed should have the sole use of that part of the close upon which he was to have the liberty of stacking coals. Lee, C. J., and Dennison, J., were of opinion, that the agreement was good, and relied upon the authority of Webb and Paternoster, (a) where it was held, that a grant of a license to stack hay upon land, did not amount to a lease of the land. They maintained that the agreement in the present case was only for an easement, and not for an interest in the land-that it did not amount to a lease, and consequently it was not within the Statute of Frauds. Forster, J., said, that the agreement did not amount to a lease, but he inclined to think that the words in the statute, any "uncertain interest in land," extended to the

(a) Palm. 71.

agreement upon which the other judges observed, that these words related only to interests uncertain as to the time of their duration. It was ultimately decided that the agreement was good for the seven years. (a)

Now, with respect to the case of Webb and Paternoster relied upon in the above case, it is sufficient to observe that the decision there was come to upon another point, and that that case arose before the Statute of Frauds. It was even there held that the interest under the license was such as bound the land in the possession of a subsequent lessee. The statute does not apply exclusively to leases and estates in land. It applies to all interests. A right to enter alone is an interest, much more a right to use and occupy to the exclusion of others. The decision, therefore, in Wood v. Lake, was directly against both the spirit and language of the statute.

That decision, however, has been followed in several cases, but the point seems to have been very carelessly discussed. It has been successively held that a parol license to put a sky-light over an area, a parol agreement for leave to inhabit a house, a parol license to build a house on the waste of a manor, and a parol beneficial license to be exercised upon land, are all valid as not conferring interests in lands. (b)

In the above cases, there was simply a right either to control pro tanto the right of ownership in the lands of another, or to use and occupy the land for a definite purpose, and without any liberty for converting or appropri ating the land for other purposes. But a license to work mines is of very different description. It confers not only a right to enter and occupy, but to commit waste, and carry away part of the land itself-viz., the minerals. This right may, as we shall afterwards see, be in some instances revocable at the will of the party, but even then it will, of course, exist in full force till revocation. It seems, therefore, impossible to contend that this right is not an interest within the Statute of Frauds. To assert that, it would be necessary to maintain that the minerals are not part of the land.

An interest in land may exist where there is no actual estate in the land. And it has, in other cases, been determined that such an interest is within the meaning of the statute.

Thus, it has been decided that sales of growing poles, of standing underwood, of a crop of mowing grass, are all within the statute. (c) It is true the cases upon this subject are very conflicting, and that the leaning in the later decisions is certainly in favour of bringing the produce of the land not within the first and fourth sections, but the seventeenth section, which en

(a) Wood v. Lake, Say. 3.

(b) Winter v. Brockwell, 8 East, 308. Rex v. Inhabs. of Standen, 2 Mau. and Sel. 461. Rex v. Inhabs. of Hornden, 4 Mau. and Sel. 562. Tayler v. Waters, 2 Marsh, 551. 7 Taunt. 374. But see Cocker v. Cowper, 1 Cro. Mees. and Rosc. 418. Fentiman v. Smith, 4 East. 107. Hewlins v. Shippam, 3 Barn. and C. 233.

(c) Teall v. Anty, 4 Moo. 542. Scorell v. Boxall, 1 You. and Jerv. 396. Crosby v. Wadeworth, 6 East, 602. See Carrington v. Roots, 2 Mees, and Wels. 248.

acts, that no contract for the sale of goods, wares, and merchandise, for the price of ten pounds or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum of the bargain be made and signed by the parties, to be charged by such contract or their agents thereunto lawfully authorised. (a) But notwithstanding this inclination, it is not to be supposed that the courts will ever repudiate the distinction of Lord Ellen. borough in the case of Crosby v. Wadsworth, where he said, with respect to a growing crop of grass, that, in the outset, he felt himself warranted in laying wholly out of the case, the provision contained in the seventeenth section, as not applicable to the subject matter of that agreement, which could not be considered in any proper sense of the words as a sale of goods, wares, or merchandise, the crop being at the time of the bargain (and with reference to which he agreed with Mr. Justice Heath in Waddington v. Bristow, (b) that the subject matter must be taken) an unsevered portion of the freehold, and not moveable goods or personal chattels. (c)

In a late case, (d) where a farm was agreed to be let by parol, and the tenant was to take the growing crops and pay for them, and also for the work, labour, and materials, in preparing the land for tillage, it was decided that this case was within the fourth section of the statute. It was held by the court, that at the time when the contract was made, the crops were growing upon the land, the tenant was to have had the land as well as the crops, and the work, labour, and materials were so incorporated with the land as to be inseparable from it. He would not have the benefit of the work, labour, and materials, unless he had the land, and they were of opinion that the right to the crops, and the benefit of the work, labour, and materials were both of them an interest in the land.

It must, therefore, be concluded, that a license to work mines is within the first, third, and fourth sections of the Statute of Frauds; that it must be in writing, either from the grantor or an agent lawfully authorised by writing under the first section; that it must be transferred, or surrendered in writing either by the assignor, surrenderor, or some agent also lawfully authorised by writing, under the third section; and that under the fourth section a bare agreement only for a license, if in writing, may be entered. into either by the intended grantor or his agent lawfully authorised, and the authority of the agent need not be in writing. But a license cannot be within the exception of the second section, which applies only to leases.

(a) See Waddington v. Bristow, 2 Bos, and Pull. 452. Evans v. Roberts, 5 Barn. and Cress. 829. Parker v. Staniland, 11 East, 362. Warwick v. Bruce, 2 Mau. and Sel. 205. Smith v. Surman, 9 Barn. and Cress. 561. Sainsbury v. Matthews, 4 Mees. and Wels. 343. Dunne v. Ferguson. 1 Hayes, 541.

(b) Supra.

(c) See also Boyce v. Green, Batty, 608, supra.

(d) Lord Falmouth v. Thomas, 1 Crompt, and Mees. 89.

It was decided in the above case of Carrington v. Roots, (a) that an agreement under the fourth section, though altogether void, may have some operation in communicating a license, so far as to excuse what would otherwise be a trespass, but such a license could confer no interest, and would be always countermandable at the will of the party.

It is a general rule, that a bare personal right or a bare power cannot be assigned. We have seen, however, that a license to work mines confers a distinct interest in the land, which may, therefore, be assigned in the same manner as a power coupled with an interest, or a power to cut down trees. But the right or liberty must, of course, be exercised by the assignor in the manner pointed out by the original grantor. (b) A license often expressly extends to the assigns of a grantee.

The general construction and duration of a license will be considered in the next chapter.

An agreement was entered into by the committee of a lunatic, under the following circumstances. The lunatic was tenant for life, without impeachment of waste, with remainder to his first and other sons in tail, with other remainders over. The lunatic was unmarried. Coal was found upon the estate, but not in sufficient quantity to justify the sinking of a shaft; but the coal might be worked by means of a shaft in the adjoining land. Part of the estate of the lunatic was mortgaged, and the mortgagee was in possession. The income of the lunatic was considerably reduced, and there were other debts which could not be satisfied. The committee, therefore, agreed with the owner of the adjoining land to work the coal. The master, who was attended by the next of kin, reported this to be for the benefit of the lunatic. Lord Eldon, on confirming the report, said, the circumstances were singular. The next of kin had an interest that the coal should be worked. The heir at law had no interest, there being various remainders over. He thought it might be done by the committee; it was like cutting timber. (c)

SECTION II.

TRANSFER BY DEED.

Having thus discussed the provisions of the first four sections of the Statute of Frauds with respect to the alienation of mining property, we may now proceed to enquire into the mode of alienation sanctioned and required by the common law, independent of that Statute.

(a) 2 Mees, and Wels. 257. See also 3 Barn. and C. 232.

(b) Warren v. Arthur, 2 Mod. 317.

(c) Ex parte Tabbert, 6 Ves, 428. As to leases and agreements on the part of lunatics and infants, See 1 Will. IV, c. 65,

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