writ of admeasurement, which is addressed to the sheriff, and which directs him to make the admeasurement finally. (a)

It has been doubted, whether, if an open mine of coals or lead were in the share assigned by the infant heir, so as to render the widow's third of greater value than the remaining two-thirds, a writ of admeasurement would lie.(¿) It is difficult to conceive, in the case of an open mine not taken into the estimation, any ground of distinction from an ordinary case of excessive assignment; and it is presumed, that there can be no doubt in such a case. But if the value of the mine had been taken into account, and its prospects, though since improved, were then such as to make no material distinction in the actual apportionment, it might of course be contended, that there was reason why the writ should be issued. It is presumed the value must be taken at the time of the assignment, and the heir would not be entitled to the writ if the value had increased since the assignment, for the writ is given to correct errors and unfair dealings; and the assignment might be perfectly fair at the time it was made. All such questions may be brought by either party before the judges of the Court of Common Pleas, who will direct the writ, and proceed to make the proper admeasurement. (c)

It would appear, therefore, that if the value was fairly ascertained at the time of the assignment, the dowress will be entitled to all the increased value which may afterwards have resulted from the improved condition of the mine.

But if the value was not fairly ascertained at the time of the assignment, there must then be a proper re-valuation of the property at that period, and a fair distribution made accordingly. In the case of mines, this would be sufficiently difficult to determine. It might be a matter of great doubt, and subject to much conflicting evidence, to ascertain the value of a mine at any remote period of its history; for the value of a mine not only depends upon the actual profits, but upon the difficulties which have been overcome, or which may be anticipated, and the general prospects of the adventure. sufficiently difficult to estimate the value of a mine at any period.

It is stated by Fitzherbert, that if the lands assigned by the infant heir exceed one-third of the whole, and they become more valuable than the remainder, by improvements made by the widow, a writ of admeasurement will not lie on account of such improvements, as that would be unjust, since she may have been induced to make them under a presumption that the assignment was proper (d) It has been suggested, that there seems no objection to the admeasurement of the lands assigned, and to the heir taking the overplus, upon allowing for the value of the improvements of the excess of lands assigned. Thus, if the assignment were of four acres when the number (a) Fitz. N. B. 149 B. Gilb. Dower, 385. But see Co. Litt. 39. 2 Inst. 367.

(b) Fitz. N. B. 149 C. (d) Fitz. N. B. 149 C.

(c) Fitz. N. B. 148, G. H. Gilb. Dower, 385.

should have been three, the heir might take back the fourth upon the admeasurement, and make compensation to the widow for the value of its improvements. (a) But it does not appear clear that the sheriff of the Court of Common Pleas has the power under the writ, of awarding compensation, in such cases, to the widow. If this be the case, relief must be sought for in a Court of Equity, which would probably either put the parties to elect between the acceptance of certain terms, or a new assignment on the basis of the improvements. (b)

To what extent such a principle might be held to apply to mines, it would be impossible to say. If the dowress had been successful in converting her expenditure into a source of profit, there seems no reason why such a rule should not be made available in her favour. But in other instances, it is conceived, the uncertain nature of mining speculations would preclude her from demanding any amount of compensation.

It has been decided that when dower has been sued for at law, and a partial or improper return has been made by the sheriff, the heir or tenant may be relieved in equity. Thus, a suit was brought for relief against a fraudulent assignment of the sheriff, who had given to the widow a full third part in which there was a coal mine of considerable annual value, but in respect of which no consideration was had in the assignment. The Court proposed terms for the consideration and acceptance of the widow, and directed, if they were not accepted, that a new assignment of dower should be made. (c)

A widow will also be entitled to dower, when there is a licence or liberty in fee to work mines. Although this liberty only forms an incorporeal hereditament, yet it savours of the reality sufficiently to become liable to dower. (d)

Mines, of course, may also descend in coparcenery.

The case of Lord Mountjoy, (e) is the only one which seems to refer to this subject. In that case, there was only a liberty to work mines, and it appears to have been held that such a right descending in coparcenery, was incapable of division, and that the coparceners should continue to work the mines with one stock, participating equally in the expenditure and the profits, It has been observed, that from the report of the case by Lord Anderson, it appears that this was a mere dictum, either of some of the judges, or of the other reporters. For this point of indivisibility is not noticed in Ander son, who gives the opinion of the judges as it was certified in writing to the

(a) Roper on Husb. and Wife, vol. i. p. 409.

(b) Hoby v. Hoby, 1 Vern. 218.

(c) Hoby v. Hoby, 1 Vern. 218. 2 Ch. Ca. 160. See also Sneyd v. Sneyd, 1 Atk. 442, (d) Co. Litt. 32 a, and b. Cro. Jac. 621. Fitz. N. B. 148 c.

(e) Godb. 17, 1 And. 807, and Mo. 174.

privy council; nor is it one of the questions stated by Anderson to have been referred to the judges. (a)

This dictum, however, meets with the approbation of Sir Edward Coke, and does not seem to be any reason for disputing it. After citing the case, Coke proceeds to say, that then it might be demanded what should become of these inheritances?-The answer is, that it appeared that regularly the eldest should have the indivisible inheritance, and the rest should have a contribution, that is, an allowance of the value in some other of the inheritBut what if the common ancestor left no other inheritance to give any thing in allowance, what contribution or recompense should the younger coparceners have ?-It is answered, that one coparcener shall have the subject matter for a time, and the other for a like time-as the one for one year, and the other for another, or more, or lesser time, whereby no prejudice could grow to the owner of the soil. (b)

ance.

The mere right to work mines, is, as we have seen, an incorporeal hereditament existing in the land of other persons; and it is indivisible, because a division of the right would create new rights, and would prejudice the owner of the soil. All the coparceners cannot exercise the full right. This is the true reason why the enjoyment of coparceners must be distributed with respect to time, or limited to acts proceeding from a union of interests. Such is the law with respect to estovers, appendant to a freehold, a right of piscary uncertain, and common sans number, in all which and similar cases, a partition would enlarge the original grant beyond the intention of the grantor. (e)

But the case is very different when a distinct right of property in mines descends in coparcenery. And though this subject has never called for judicial discussion, there can be no doubt that, in analogy to what has been decided with respect to dower in mines, coparceners would be also held to be entitled to a partition. Their rights, in this case, have no such interference with the property of others. They are seised not of bare right, but of an estate in fee, divisible in its nature.

It is presumed, therefore, that mines whether forming a distinct inheritance or not, may be divided amongst any number of coheiresses under a commission issuing from the Court of Chancery. The writ of partition is now abolished. If there are other hereditaments or many mines, each coparcener may be entitled to a distinct and separate estate either in any of the mines or in other hereditaments, or in both, according to the circumstances of the case. If the property consist only of mines, and these are incapable of convenient and separate partition, the proper proceedings might easily be suggested by reference to the mode of partition in a case of a similar nature, or of assignment of dower. It is unnecessary to add, that

(a) See Co. Litt. 165 a. n. 1.

(c) Co. Litt. 82 a. Godb, 21. Perk, sec, 341.

(b) Co. Litt. 165 a.

coparceners may also, when competent, agree to any special enjoyment or partition in the usual way. (a)

Similar observations will apply to joint tenants, and tenants in common.

Mines, when held for chattel interest, will vest in administrators, in case of intestacy, and whether held for freehold or chattel interests, will also vest in the assignees of the estates of bankrupts and insolvents. They will also be subject to the ordinary processes of executions on judgment.

Under the third section of the Statute of Frauds, existing interests in land may still be assigned and surrendered by act and operation of law.

Thus, if during a lease from year to year, the landlord, with the assent of the tenant, who quits the premises, accept and treat a third persen as his tenant, this will amount to a valid surrender of the former tenant's interest by operation of law. (b) And the acceptance of a new lease for a term, to commence during the existence of a former demise, amounts to a surrender of the first term. (c)

SECTION V.

TRANSFER OF SHARES.

In cases of partnership in mines, it usually happens, that the interest in the property is legally vested in one or more partners, in trust for themselves and the rest of the company. It may be useful, therefore, to consider in what manner a transfer of shares held under such circumstances should be effected.

When the property is thus vested, the existence of the trust may be shown by any written evidence or admission of the parties which may suf fice to establish the fact, and a bill in equity may be filed for the discovery of the trust. But when the adventure is of any consequence, there should either be a conveyance of the property to the other partners in the shares to which they are entitled, or the trust should be declared by the trustees in a regular deed, in which should be expressed the respective interests of all parties interested in the property at the time of the execution. It will be seen in a subsequent part of this treatise, that it is of great importance that the objects of a mining company should be fully developed in a deed of copartnership, by which the partners may prevent many of the legal and troublesome consequences arising from such connections. (d) It is very usual to effect both purposes by the instrument. (e) It may occasionally be

(a) See Bac, Ab, Coparc, C,

(b) Thomas v. Cook, 2 B. and Ald. 119. Phipps v. Sculthorpe 1 B. and Ald. 50.

(c) Hamerton v, Stead, 3 Barn. and C, 478. 5 D. and R. 206. And see Woodfall on Landlord and Tenant, by Harr. c. vii. s. 3.

(d) See chap viii.

(e) See Appendix.

sufficiently proper to include the stipulations of partnership in the deed of grant itself.

If the mines are held for a freehold interest, the cestuis que trust will, of course, be entitled to an equitable freehold; and if only for terms of years, they will be entitled only to an equitable chattel interest. If, again, the property is held under a mere agreement, all the parties interested will stand merely in a similar condition, and will be equally entitled to equitable interests only, either of a freehold or personal nature. In all these cases, the shares of the cestuis que trust would be effectually bound by any written memorandum or agreement for transfer, which would, in equity, affect the legal estate, and control its disposition. In some cases, as where the adventure is of trifling importance, or when the period of enjoyment is very limited, it may be sufficiently prudent to dispense with any further means of security. But it will generally be most advisable to transfer the shares by an indenture of equitable grant or assignment, by which the conveying par ties may be clearly estopped from asserting subsequent claims, and may enter into proper covenants with the persons acquiring the shares. Notice of transfer should be immediately given to the trustees. This is often effected by the entry of the names of new partners upon the books of the concern, and recognition by their copartners. But if the trustees are not partners, express notice should be given.

If the person transferring the shares be one in whose name the property is held, and he disposes of his whole interest, it will, of course, be proper that he should also divest himself of all legal and equitable title to the general property as well as the particular shares. This object may be attained in the manner already pointed out in the preceding sections. If there be only an agreement for the mining property, no further conveyance than that of the shares can, of course, be obtained.

These observations will apply equally to licenses either for freehold or chattel interests.

It is almost unnecessary to say, that the shares will follow the course of devolution and descent, and be subject to the usual incidents of real property, according to the nature of the tenure. Equity follows the law. If they are freehold of inheritance, they will descend to the heir in cases of intestacy, except in cases where, as we shall afterwards see, they are still to be considered in the nature of personal estate, and even then the heir will hold an equitable interest for those beneficially entitled. If the shares are leasehold for years, they will devolve upon the executor or administrator who will hold them upon the trusts of the will, or as part of the general personal estate of the deceased.

Transfers of shares in mines are often effected in a most careless and irregular manner, and so as frequently to lead to vexatious litigation. It should be strongly impressed upon the minds of all adventurers that their