are applicable to the nature of the property, viz., by notice of the intention of the grantor to take advantage of the forfeiture committed by his grantee -and this notice, it is presumed, may be either express, or implied from acts of entry, or of notorious ownership. There is no distinction in this respect, between licenses for freehold interests and for years.

It is a general rule of law, that no rent can issue out of any incorporeal hereditament, because such inheritances are incapable of being distrained upon. (a) But the Crown is excepted from this rule, because by its prerogative all the lands of the lessee are liable to distress for rent (b). Rent, therefore, cannot, eo nomine, be reserved upon a license to work mines. Indeed, it may be doubted, whether in the case of an actual demise of mines without land, any rent liable to remedy by distress, can issue; for the works would not be demised, and there would be nothing on the subject of demise to distrain. But the reservation of rent will, in either case, be good by way of contract, for the non-performance of which the lessor will be entitled to an action of covenant or debt-for the lessor might otherwise be left without a remedy. (c)

In other respects, the incidents and construction of licenses seem to correspond with what has already been said upon the subject of mining leases.

From the preceding observation and cases, it will appear very important, when any mining adventure is in contemplation, to ascertain whether the subject of speculation is entirely freed from previous grants and reservations. In cases of freehold leases, this subject should receive particular attention, although it has been seen that a sufficient entry may be completed by persons acting under the authority of the grantor. Allusion has al ready been made to this necessity for caution in treating of the relation of grantor and grantee. But prudence is equally required, and in all cases of grant, whether for freehold or personal interests, in adjusting the rights of different companies of adventurers. It very frequently happens, in mining districts, that a mine is worked under a license or a lease, containing the usual clauses of forfeiture and re-entry; and from the want of success the enterprize is virtually abandoned by the company. It is not uncommon for another lease or license to be granted to other persons, or even to the same persons, in trust for another company of speculators, a great part of whom may have been members of the old compamy. At any rate, the mining agent and the leading directors of the first company may continue in the same capacity and situation with respect to the new company. There may be little change in any respect, except in the ordinary event of taking a new (b) Ib. 47 a. 5 Co. Rep. 4, 56.

(a) Co. Litt. 47 a, 142 a, 144.

(c) Dalston v. Reeve, Ld. Raymond, 77.

interest in the mine, and in the subs itution of a few dormant proprietors. All acts of ownership may thus be referred to either company, if the interest under the former grant is not effectually extinguished.

It very frequently occurs, particularly in operations for obtaining the metallic ores, that a second or a subsequent adventure, is attended with great, and perhaps unexpected success. Questions of prior claim may slumber when the result is doubtful, but when the prospects of a mine begin to be realized, these questions may cause, not only as in Hanley v. Wood, great embarassment, but great danger of a successful interference. A long

course of litigation may ensue, and the mine may either cease to be worked, or the profits may flow into the hands of those who may be eventually be declared to possess no title to them. It is no less the duty of the lessor as of the miner to ascertain, that any grant under which mining operations are conducted, is not liable, from negligence and inattention, to be in any manner prejudicially effected by claims of prior origin, which should have been legally destroyed by properly carrying out the conditions which control them. To the lessor, indeed it might be of no consequence whatever, if the terms of the subsequent grant were equally favourable to his interests as those of the first. But every lessor is morally, if not legally, bound to furnish voluntarily, in such cases a valid title to the property he professes to dispose of; and especially in those particular matters which the lessee may not have the means of investigating for himself. On the other hand, it will readily be admitted, that no circumstance can be more vexatious to a mining adventurer, than after a long course of expense, doubt, and anxiety, to be harrassed by prior claims, when at length the enterprise has been favoured with the falfilment of his hopes.

In such cases, however, a Court of Equity will often refuse to lend its assistance in favour of persons urging former claims.

In one case of this description, a motion for a receiver on the part of the first lessees was refused. Lord Eldon, on that occasion observed, that in disturbing possession with reference to such a subject as mines, the Court would be taking an extremely strong step; especially if great expenditure had been applied without the interposition of other claimants, until it was excited by the profitable result of that expenditure, in which they would take no share. (a)

In a case decided by Lord Rosslyn, (b) the plaintiff and defendant had been partners in a coal mine, under a lease, with a right of renewal. The renewal was obtained, and the mine worked, by the defendant alone, and the Bill was dissmissed, on the ground the plaintiff having waited till the concern appeared by the property embarked in it by the defendant to be profitable, keeping aloof while it was hazardous, had lost the equity he had by the renewal of his partner.

(a) Norway v, Rowe, 19 Ves. 156.

(b) Senhouse v. Christian, cited 19 Ves. 157. 159.

Lord Eldon, in commenting upon this case, said it involved a doctrine with regard to mining concerns, upon which at least the Court would not refuse to act without great consideration-speculatlons of that nature were very hazardous. He had known a copper mine produce £20,000 a year, and the next week worth nothing, and that was as true of coal mines. There were persons who would stand by, see the expenditure incurred-if it turned out profitable, would set up their claim-if otherwise, would have nothing to do with it-and it deserved great consideration, whether the Court would interpose, even by Decree, much less on motion. (a)

These observations seem to apply to all mining adventurers.

It must be observed, that in both those cases, the plaintiffs had not the legal estate; and it may be concluded, that under such circumstances, a Court of Equity would refuse to interfere at all. It does not, however, ap pear to be settled, whether, after great expenditure incurred, without interruption or remonstrance, the Court would refuse to interfere against the owners of the legal estate who had not participated in the expenditure. It cannot, under any circumstances be considered to be a very equitable proceeding to encourage or acquiesce in an expenditure accompanied with great risk and delay, and afterwards to claim the whole benefit of the outlay. It would be a species of fraud. Every case will depend upon its own peculiar circumstances, but great injustice might result in many such cases, if a Court of Equity refused to interfere for the purpose of declaring such owners Trustees, as to the whole estate vested in them, for those adventurers who have carried on the mining operations.

A similar doctrine has even been maintained at law. An estate was sold at a remote period with a reservation of coal mines-they were reserved, because no one would give any thing for them. The application of machinery at length rendered them available, and the owner of the surface worked the coals after an enormous expense-and then the other party came forward. Upon the trial of the issue which seems to have been directed by the Court of Chancery, it was strongly laid down to the jury by Mr. Jus tice Buller, that as the proprietor had stood by during the whole of the expenditure, a grant should be inferred (b)

Lord Eldon, however, though admitting the great knowledge of Mr. J. Buller, with respect to mining concerns, established that the direction was wrong. (e) The circumstances of this case are not fully detailed. But the direction of the learned Judge was probably considered bad on the general ground of there being an insufficiency of time to warrant the presumption of a grant against the absolute owner of the inheritance. But the case is very different when a person is originally a trustee for himself and others claiming iuterests in the property. The legal estate vested in him (5) Adair v. Shaftoe, cited 19'Ves, 156. (c) Ibid.

(a) 19 Ves. 159.

may not be presumed to have passed from him. To affect this, would require a possession of the cestuis que trust for twenty years, without any for mal recognition of the title of the trustee. And if such a possession has even subsisted for that period, it will be insufficient, if the acts of ownership can be properly referred to the acquisition of an equitable estate only, or did not necessarily demand an investigation of the title. (a) It could only be contended that the conduct of the trustee has induced a sacrifice of his beneficial interest in the particular share to which he was originally and absolutely entitled. But, it is conceived, it would require a strong case to call for the interference of a Court of Equity against an owner of the legal estate. Vigilantibus non dormientibus leges subserviunt. The other persons interested would make the expenditure with the full knowledge of the circumstances. It was their duty, therefore, to have effected a different arrangement before entering upon such a course of expenditure.

CHAPTER V.

ON PARTNERSHIPS IN MINES.

WHATEVER may be the nature of mining, and whether the occupation may be so pursued as to be excluded from the operation of the bankrupt laws or not, it may be carried on as a trade, in a manner which will subject the adventurer to all the consequences of a particular partnership.

The question of the existence of a partnership, however, may often depend upon very nice considerations, and is described in one case by Lord Eldon, as a very difficult question; (b) for the adventurers may only be the joint tenants, or tenants in common, of an estate in land, the profits of which they combine to enjoy and realize, by consenting to appoint a general system of management. In this situation, they will be considered, with respect both to themselves and third persons, as the ordinary owners of land, working their respective shares of the mines, responsible only for their own acts, subject to no laws of partnership whatever, and possessing distinct rights in the property.

It becomes, therefore, important to discuss a question which in cases of alleged partnership, must always be preliminary to further proceedings.

It may be laid down, as a general rule, that when the trade is carried on in such a manner as to bring the adventurers within the operation of the bankrupt laws, a partnership must, in such cases, always necessarily subsist,

(a) Doe d. Grosvenor v. Swymmer, 1 Lord Ken. 385. See also Doe d. Milner v. Bright(b) Crawshay v. Maule, infra.

wen. 10 East, 583.

for they will be commercial traders without reference to the production of minerals at all.

The quantity of interest which the owners for the time being may have in the lands will not influence the question of liability to the bankrupt laws.For the same reasons it will not affect the question of partnership. Whether any or all of the owners have acquired an absolute or limited interest of any description, they may agree to enjoy the possession of the common object in a particular manner.

Neither does there appear to be any reason for supposing that, though one owner was possessed solely of the legal estate, and others had only equitable interests, arising too in different proportions, and evidenced by different means, any presumption of partnership would necessarily arise from that circumstance; for lands are frequently enjoyed in this manner by tenants in common, and there is nothing inconsistent with their rights of ownership.

If, however, it could be distinctly shown that the land was not intended to be held in common, but to remain the absolute property of any one or more of the parties, evidenced, for instance, by the payment of rent, a case of commercial partnership, it is conceived, might fairly be presumed with respect to all concerned.

The relation of partnership, as will be afterwards shown, may he constituted either by express stipulation, or by implication deduced from the acts of the parties.

When the mining operations are carried on by several landowners under a co-partnership deed or agreement, or even a verbal agreement, from which it may be clearly established that the parties intended to enter into a trading adventure, and to become co-partners in the ordinary and commercial sense of the word, a partnership will, of course, be constituted, not only as between themselves, but as to all other persons. But with respect to the presumption arising from persons holding themselves out to the world as partners, it is sufficiently obvious that something more is required in such cases than what would be necessary to establish a partnership under ordinary cir cumstances. For all the characteristic features of a general partnership may be equally applicable to persons who work the mines under their lands as parts of the profits of those lands. Such persons, in the absence of other circumstances, cannot fairly be presumed to have intended to render themselves liable to all the consequences of a commercial partnership. The question in such cases, will, therefore, naturally arise-viz., what additional circumstances will be requisite, in the absence of express agreement, to raise the presumption of partnership.

The first case which occurred on this subject was that of Crawshay v. Maule. (a) In that case certain lands had been held in tenancy in com

(a) 1 Swanst 523.