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1819.

CROCKER

against FOTHERGILL.

lands, or from any other tenements of the fessor within the said parish, as much clay, sand, stones, slates, &c. as was necessary for the purpose of erecting such furnaces; and also full and free liberty to and for the lessees, his executors, and assigns, to bore, dig, try, search for, raise, and land all such coal, culm, iron ore, or iron mine, as should or might be found, as well in, upon, or under the said several messuages, tenements, and lands before mentioned, as in, upon, or under the messuage, tenement, and lands therein described, as in the possession of a tenant therein named, in, upon, or under all the wastes or commons called Gwayny Pound, Rhassanymour Pen, Mack Bimore, and in, upon, and under the lands therein described, in the tenure and occupation of a certain other tenant, and in and upon the lands described as being in the occupation of several other tenants therein named, all which said premises were situate in the parish of Bedwelty in the county of Monmouth, and for that purpose to dig, sink, and make pits and other works necessary for the working thereof, &c. The rent reserved was 1341. per annum, subject to a deduction of 51. It appeared in evidence, that the Defendant had entered into an arrangement with one Cunningham, in consequence of which Cunningham delivered to him personally in London, a declaration in ejectment, upon which judgment went by default, and a writ of possession was executed with a sham levy at Cunningham's suit for 10,000l. pretended to be due for rent and dilapidations. When the sheriff executed this writ, the defendant accompanied him and pointed out to him the different premises he had held under the plaintiffs, and among others the mines not under the surface of the land demised to him, and the sheriff delivered possession of those mines as well as the other premises.

premises. The premises described in the declaration in ejectment were 2000 acres of arable land, 2000 acres of meadow land, 2000 acres of pasture land, 2000 acres of common land, 2000 acres of land covered with furze and heath, and 2000 acres of land covered. with water, with the appurtenances, situate in the parish of Bedwelty, in the county of Monmouth. It was then proved that on a renewal of the lease of the Sirhowey iron works for forty years, they were worth a rent of 2500l.; and the plaintiffs contended that the jury were to consider that sum as the improved rack-rent of the premises demised or holden in the possession of the tenant upon which the penalty was to be calculated. The defendant's counsel, on the other side, contended, that the jury must be confined to say what rent the surface of the land demised would fetch on the expiration of the lease, because the coal mines were parcel of the inheritance, and not a portion of the annual produce; and, secondly, he insisted that the declaration in ejectment only applied to the premises specifically demised by the lease, and not to any advantage under the licence to dig contained in it, and therefore, admitting that mines under the lands specifically demised could be recovered in that ejectment, still that mines in which he had a mere licence to dig, could not be so recovered, and that, therefore, the plaintiffs were not entitled in this action to any compensation for any mines under any part of the lands not specifically demised. The learned Judge stated to the jury that the improved rack-rent of the premises was that which the landlord could obtain from a respectable tenant at the time the grievance complained of was committed; that in determining that, they were not bound by the estimate given by the witnesses, but might act upon their own judgment, and

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1819.

CROCKER

against

FOTHERGILL.

1819.

CROCKER

against FOTHERGILL.

were at liberty to give a lower sum if they thought fit;
and, upon the second point, the learned Judge said, that
as the benefit which the tenant took under the lease
was the mine under the surface not demised as well as
that which was demised, and as that constituted a part
of what the plaintiff had to carry to market to make
the subject of a reservation, in the shape of an im-
proved rack-rent from a tenant at the expiration of the
lease, and as that constituted part of the benefit of
which the defendant's conduct was calculated to deprive
the plaintiff by withholding notice of the service of
the declaration in ejectment, it ought, therefore, to
be taken into consideration in estimating the penalty;
and that the jury ought not to confine their verdict to
the value of the land alone, which was actually de-
mised, but ought to extend it over the whole of the
property which the defendant ought to have restored to
the plaintiffs, and which they might have had the op-
portunity of letting to advantage. The jury found a
Jervis, in last Mi-

verdict for the plaintiff for 4500l.
chaelmas term, moved for a new trial, upon the two
objections taken at nisi prius. But the Court were of
opinion, upon the first point, that the directions of the
learned Judge, with respect to estimating the improved
or rack-rent, were quite correct. The reserved rent
could not be considered as the improved rent, the
latter being what the landlord granting, and the tenant
taking, might fairly agree on at the time. It is true
that it must not be any fanciful rent, nor one which a
person having peculiar facilities would pay, but it must
be such as a stranger might fairly be expected to give;
and, therefore, they refused the rule upon the first
point, but they granted a rule nisi on the second;
against which rule cause was now shewn, by

W. E.

W. E. Taunton (with whom was Campbell). The plaintiff is entitled to recover the three years' improved rack-rent, in respect of the mines under the surface demised, as well as those under the surface not demised; for although the declaration did not mention mines eo nomine, still it contained the word land. And Lord Coke says, that under that term any thing may be recovered, to the center of the earth (a). Assuming, however, that that might be doubtful, in this case the defendant has put that interpretation upon the declaration in ejectment, by the mode in which he allowed the sheriff to execute the writ of possession. For possession of all the mines, as well under the surface not demised as that demised, was delivered to Cunningham, the lessor of the plaintiff in the ejectment, and it is not competent to the present defendant, who concurred in that act, now to say, that one part of the premises were not recoverable in the ejectment. The Court then called upon

Jervis, Peake, and Puller, for the defendants. This question turns entirely upon the 11 G. 2. c. 19. s. 12., which after reciting that inconveniences had happened to landlords, by their tenants secreting declarations in ejectment, enacts "that every tenant to whom any declaration in ejectment shall be delivered for any lands, shall forthwith give notice thereof to his landlord, under penalty of forfeiting three years' improved or rack-rent of the premises so demised or holden, in the possession of such tenant, to the person of whom he holds." Now

(a) See Dyer, 47. a. Goodtitle, demise of Chester, v. Alker, Co.
Litt. 4. a. Connor v. West, 5 Burr. 2672.
Comyn v. Kyneto, Cro. Jac. 150.
Cole v. Aylott, Lit. Rep. 299.

Jac. 21.

146.

Harebottle v. Placock. Cro.
Warden's case, Het. Rep.

1819.

CROCKER

against FOTHERGILL.

the

1819.

CROCKER against FOTHERGILL.

the utmost injury that a landlord can sustain, by withholding from him a declaration in ejectment, is, that he may be dispossessed of the premises recoverable by that declaration; and if the declaration in ejectment does not comprize any of the premises delivered up, the landlord has not been injured by not having an opportunity of defending such an ejectment, because such premises were delivered to the lessor of the plaintiff, not under the ejectment but by the mistake of the sheriff, and the landlord might treat the party in possession as a trespasser. In the case of an ejectment for lands in two different parishes, where the lessor of the plaintiff recovered the lands only in one, and the sheriff by mistake delivered the possession of the lands in both parishes, could it be contended in such an action as this, that the tenant would be liable for the improved rent of the premises in both parishes? that would make him liable not for his own default, but for that of the sheriff.

ABBOTT C. J. The words of the act of parliament do not confine the damages to the treble value of the premises mentioned in the declaration of ejectment, but give such damages in respect of any premises demised or holden in the possession of such tenant. Although this act of parliament, being a remedial act, ought to receive a large and liberal construction, yet I am by no means prepared to say, if the declaration in ejectment was one under the clear and unequivocal construction of which only part of the lands in the possession of the tenant could have been recovered, (as, for instance, the case put in argument of lands in different parishes,) that a plaintiff, in such an action as this, should recover damages for the whole. In this case, however, the sheriff, on reading the writ of possession,

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