jects to the exception in the act, the will should have Friday, June 18th. The owner of to A., his partners, fellow DOE, on the demise of HANLEY, against WOOD. the fee granted THE special verdict set forth an indenture, dated March 1st, 1806, whereby Thomas Carlyon, being seised in fee of the premises, granted unto John Amler Hanley, his partners, fellow-adventurers, executors, administrators, and assigns, free liberty, licence, power, adventurers, &c. free libertytodig for tin and all other metals, throughout certain lands there in described, and to raise, make merchantable, and dispose of the same to their own use; and to make adits, &c. necessary for the exercise of that liberty, together with the use of all waters and water-courses, excepting to the grantor liberty for driving any new adit within the lands thereby granted, and to convey any water-course over the premises granted, habendum for twenty-one years; covenant by the grantee to pay one-eighth share of all ore to the grantor, and all rates, taxes, &c., and to work effectually the mines during the term; and then, in failure of the performance of any of the covenants, a right of re-entry was reserved to the grantor: Held that this deed did not amount to a lease, but contained a mere license to dig and search for ninerals, and that the grantee could not maintain an ejectment for mines lying within the limits of the set, but not connected with the workings of the grantee. The grantee commenced working the mines, but after some time discontinued, not being prevented by the want of water, or any other inevitable accident. The grantor, after some lapse of time, verbally authorized other persons to dig for ore throughout part of the land described in the deed, and met those persons on part of the land, and pointed out the boundaries within which they were to exercise the liberty; and himself subsequently entered into a mining adventure with other persons, which was carried on within the limits described in the indenture; and afterwards, in consideration of the surrender of the first grant, and of certain payments, demised the premises to a lessee for twenty-one years; and upon the execution of this lease, the original deed was delivered up, but there was no surrender in writing: Held that these acts amounted to a re-entry by the grantor, inasmuch, as unless referred to the exercise of that right, they would be acts of trespass by him. Held also, that by 55 G. 3. c 184. s. 49., the commissioners of stamps are authorized to stamp letters of administration de bonis non, on security given, and without payment of the duty, as well in cases where the duty has been paid on the original letters of administration, as when such letters of administration have been originally stamped on credit. and and authority to dig, work, mine, and search for tin, of 1819. Dor against WOOD. 1819. DOE against WOOD. of any other person, at his and their pleasure; and also except unto the said T. Carlyon, his heirs and assigns, full liberty to convey any watercourse over the premises granted, or any part thereof, in such manner as he or they respectively should think meet for any purpose whatsoever, doing no injury to the workings of J. A. H. his partners, &c.; to have, hold, use, exercise, and enjoy the said several liberties, licences, &c. for the term of twenty-one years, fully to be complete and ended. The indenture contained covenants for the payment of an eighth share of all ore to T. Carlyon, and that J. A. H. and his partners would pay all rates and taxes, and would effectually work the premises, and support the adits, &c., and then contained a proviso, that in case of the neglect or failure in the performance of any of the covenants, it should be lawful for Thomas Carlyon, his heirs or assigns, upon the lands, or any part thereof, in the name of the whole to enter, and the same to have again, repossess, and enjoy. The special verdict then stated, that the surface of the lands was, during all the time, occupied by the said T. Carlyon, and his tenants of the surface, and that the said J. A. H., soon after the execution of the indenture, dug for tin, &c., and that about the month of July, 1806, the said J. A. H. made an excavation or adit within the limits horizontally into the earth, from the sea shore, upon the level of the sea, about seven or eight fathoms, when it cut a vein, containing a small quantity of copper ore, and that the said J. A. H. then worked on the course of this vein towards the west, and got a small quantity of copper, but none of the copper was sold, and no profit was made, nor were any dues rendered to the said T. Carlyon in respect thereof; and and that J. A. H. afterwards pointed out a spot within the limits where he intended to sink a shaft down to the adit, and four pins were sunk in the ground to mark out the spot, but no such shaft was ever made, nor any building erected, or other work done by J. A. H. within the limits aforesaid; and that J. A. H. did occasionally work within the limits, until about six weeks before he died; when declaring that it was not worth while to work, and that he would not work any more in any of the excavations or adits, he directed the materials to be removed, and that all the timber that was there should be knocked away and carried off. In pursuance of which direction, the timber was knocked away and entirely removed, excepting one piece of timber of very small value, which the men refused to knock away on account of the danger to themselves in doing so; and the sea filled up the entrance of the ex cavation or adit. It then stated the death of J. A. H. intestate, and the grant of letters of administration to Nevel Norway, one of his creditors, on which a stampduty had been paid, on the sum of 3007. only, being considerably less than the value of the property sought to be recovered by the action. Nevel Norway having died, letters of administration de bonis non were granted on the 9th August, 1815, to George Hanley, the lessor of the plaintiff, the only child of J. A. H., which were stamped by the commissioners of his majesty's stamp duties, with a stamp-duty of 30001. upon security given, and without payment of the duty under the statute. Neither J. A. H. nor his administrators or assigns were in any manner prevented, either by water or any other inevitable impediment from working within the limits. In October, 1809, no person having 1819. DOE against WOOD. 1819. DOE against WOOD. in the interval dug for any ore, one William Brown, on behalf of Joshua Rowe, and other persons, entered into a negociation with Thomas Carlyon for a set to be made and granted by the said T, C. to the said J. Rowe and the other persons, authorising them to dig for tin, &c. and all other metals and minerals throughout part of the lands described in the former indenture; which set T. Carlyon, about 11th October, 1809, verbally agreed to make, and settled with W. Brown as to the amount of the dues to be reserved on such set. In the month of November, 1809, T. Carlyon and W. Brown met J. Rowe and one J. Kroger on part of the land described in the former indenture; and T. Carlyon pointed out some of the boundaries of the set to be made to J. Rowe and the other persons, and wished them success in their undertaking; and shortly after this the said J. Rowe dug for copper, copper ore, &c. within the limits of the verbal agreement. On the 10th day of July, 1810, T. Carlyon became jointly concerned and interested with Oliver Woodcock, John Carne, and various other persons, in the mining and searching for tin and tin ore in certain other lands, part whereof lay within the limits of the indenture of the 1st of March, 1806; and upon that occasion a memorandum of agreement was made and entered into by T. Carlyon and those persons under which the co-adventurers engaged therein dug for tin and tin ore, &c. within the limits of the first indenture, and raised and got a small quantity of tin and tin ore therefrom, and rendered the dues payable in respect thereof to T. Carlyon. On the 12th of January, 1811, another indenture was made, sealed with the seal of T. Carlyon, and by him delivered to J. Rowe, by which said last mentioned |