Question. Do you know where the defendant was at the time the explosion took place?

The Court.-Oh, well, if the defendant was the owner and general operator he is liable.

This observation of the court was excepted to.

There was previous evidence that Joseph Sholl was in charge of the coal bank at the time of the explosion.

The court gave to the jury the following instruction on the part of the people:

"The jury are instructed that the law makes the person in charge of the mine responsible for neglecting to report an accident, and the meaning of such law is not that such person shall be actually present at such mine, but one who operates the mine and carries on the business is, in the meaning of the law, in charge of such mine, and it is the duty of such person to make the report of any accident occurring in such mine to the mine inspector."

And refused the following instruction asked for the defendant:

"The jury are also instructed, that the meaning of the phrase 'person in charge,' as found in the section of the statute which is in question in this case, means the person who has the immediate personal charge of the mine."

There are three several preceding penal sections in this act, 4, 5, 6. In each of these it names "the owner or agent" as the person to observe the requirements, and to be subject to the penalties therein mentioned. But section 9, appellant's counsel urges, has a different object. To comply with it requires immediate action. Therefore, instead of attaching guilt to the "owner or agent" for the neglect to give the notice, the section shifts it to "the person in charge," thus indicating that the latter person is not the same as the owner, or the one having the mine worked. We concur in this view.

Whenever loss of life or serious personal injury occurs by reason of any accident in or about a coal mine or colliery, it is by this section 9 made the duty of the person having charge of the same to report the facts of the accident without delay to the mine inspector, and if any person is killed to notify the coroner also; and the mine inspector, if he deems it necessary, is to go immediately to the scene of the accident and render

assistance, etc, and to investigate the cause of the accident. This is action which is required immediately upon the happening of the accident.

The owner or the person operating the mine might, and quite likely would be, at the time of such an accident, far away from the place of its occurrence, perhaps in another State or country, so that it would be impossible for him to make and give the immediate report and notice required of the accident. Hence, the duty of taking this immediate action, upon the occurrence of an accident, is not imposed upon the "owner or agent" of the mine, but it is imposed upon "the person in charge" of the coal mine or colliery— the one upon the ground at the time, or presumably so-who would have immediate knowledge of the accident, and would be able to make the immediate report, and give the immediate notice which the statute requires.

Upon such a person the penalty of the statute might well be imposed for failure in this duty of immediate action upon an accident. But it would be unreasonable that the owner operating the mine through the agency of others, and not having the opportunity of knowing of an accident at the time of its occurrence, should be subjected to a penalty for not making immediate report of the facts of the accident.

The 9th section consistently and very properly drops the words, "owner or agent," which had been employed in the preceding §§ 4, 5, and 6, and requires the acts to be done in

9 to be performed not by the "owner or agent" as in the prior sections, but by the "person in charge," and imposes the penalty for the non-performance on the person in charge, and not upon the owner or agent, as in the other sections.

We are of opinion that the defendant in this case, as shown by the evidence, was not the person in charge of the mine, and so subject to the penalty of this 9th section, within the contemplation of the statute, and that the court erred in giving the instruction it did, and in not giving the one asked for the defendant.

The judgment will be reversed and the cause remanded. Judyment reversed.

1. A ticket payable in goods is not within the penal regulations concerning shin-plasters: U. S. v. Van Auken, 96 U. S. 366.

2. Effect of contract, amounting to champerty and maintenance, upon costs and right of recovery: Hilton v. Woods, L. R. 4 Eq. 432; Post MEASURE OF DAMAGES.

3. Indictment for keeping instruments for manufacturing bogus gold dust: People v. Page, 1 Ida. 102.

4. Passing counterfeit gold dust, without intent to defraud, is not an offense: People v. Sloper, 1 Ida. 158.

5. Special act for extra police in mining districts of Pennsylvania held constitutional: Northumberland v. Zimmerman, 75 Pa. St. 26.

6. Forcible attack on a coal breaker, and burning the same. Held, a destruction by riot, in action on insurance policy: Lycoming Co. v. Schwenk, 95 Pa. St. 89; 10 Rep. 704.

7. Conviction for reckless blasting without regard to safety of neighbors: Reg v. Mutters, 10 Cox C. C. 6.

8. Conviction for allowing more than eight men to be lowered in the cage at the same time, in violation of rules, made under provisions of British statute: Howells v. Wynne, 15 C. B. N. S. 3.

66

DEAN AND CHAPTER OF ELY V. WARREN.

(2 Atkyns, 189. High Court of Chancery, 1741.)

'Evidence of custom in other mining districts. The rule of law excluding evidence of custom in neighboring manors has been varied in mine countries, Derbyshire, etc.," to admit evidence to explain or corroborate the custom of the manor in question, and the same excption was in this case extended, by analogy, to the custom of digging turf. 2 Depositions de bene esse. Though depositions taken de bene esse are irregular, yet at the hearing of the cause it is too late to make objection on that ground.

Tenant at will has no easement to take soil. An occupant who is only a tenant at will can never have a right to take away the soil of the lord. Injunction to stay waste. This remedy suggested, but not acted upon, by the Chancellor.

The end of the bill was to prevent waste in digging and carrying away the soil in manors that lie in the Levels in Cambridgeshire. Evidence of customs in a neighboring manor, offered to be read, to show the customs of the manor in question.

LORD CHANCELLOR.

It is certainly the rule of law in general that the evidence. of neighboring manors shall not be admitted to show the custom of another manor, because every manor is to be governed by its own customs.

But this rule is not so universal as not to be varied in some instances; as in mine countries, Derbyshire, etc., the courts of law have admitted evidence with regard to profits of mines, etc., out of other manors, where they are analogous and familiar, to explain or corroborate the custom of the manor in question. Now, in the present case, there is a great similitude in the manors, because this is a fen country, which is of very large extent, and the nature of fens and marshes throughout England is pretty much the same.

The custom here is to dig up the lord's soil for turf, which

1 Barnes v. Mawson, 1 Maule & S. 77; Carr v. Benson, L. R. 3 Ch. App. 524; Table Mt. Co. v. Stranahan, 20 Cal. 198, Post LOCATION; King v. Edwards, 1 Mont. 235: Post DISTRICT RULES.

2 Doane v. Glenn, 21 Wall. 33.

is a very odd custom if applied to any other soil; but fenny and marshy lands are often overflowed and lie buried under water for seven or eight years, and produce no profit at all to the copyholder, and therefore, by way of compensation, when the water is drained and the land improved from the additional soil brought by the floods, the copyholder may be entitled to common of turbary, and this seems to be a plausible pretense for such a right; and therefore the evidence offered by the plaintiff must be read.

Though depositions taken de bene esse are irregular, yet at the hearing of the cause it is too late to make the objection. for irregularity, but in such case you ought to have moved the court to discharge the order for publication.

The nature of common of turbary is very well known, which is nothing more than such a quantity of turfs as may be sufficient for the house to which the common is appendant; but here the custom is laid not only in the tenants but the occupants, which is a very great absurdity; for an occupant who is no more than a tenant at will, can never have a right to take away the soil of the lord.

The court of exchequer, where there has been an imperfect modus, have taken a short method by decreeing the defendant to pay tithes; but this court will not put persons to set forth a custom with so much exactness as is requisite at law, or with so much nicety as the court of exchequer expects.

The custom in this case is so extraordinary that if the evidence had not been very strong in the support of it, I should not have directed an issue to try the custom, but should have decreed an injunction to stay waste in digging up the lord's soil.

Before the act of parliament in 15 Car. 2, ch. 17, for the improvement of the great level of the fens, the lands in question were common, and then they might have taken away turf; but being severed by this act (vide sec. 38), and annexed to particular tenements, it might very probably lead the tenants into a mistake, that they had the same right to dig turf after severance as before.