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1819.

Dok against Wood.

mentioned indenture, it was, amongst other things, witnessed, that as well in consideration of the surrender of a certain grant or set bearing date the 1st day of March, 1906, made and granted by the said T. Carlyon to the said J. A. H., being the indenture of the 1st March, 1806; as in consideration of certain payments the said T. Carlyon demised the premises in question to J. Rowe for twenty-one years.

Upon the said T. Carlyon delivering this indenture, dated 12th January, 1811, to J. Rowe, the latter, who had previously got possession of the one bearing date 1st March, 1806, being the holder of a sixty-fourth share, as a fellow-adventurer with J. A. H. under it, delivered up that indenture to T. Carlyon, but no surrender in writing was ever made or executed thereof to the said T. Carlyon. The limits mentioned and described in this last indenture, dated January 12th, 1811, were not co-extensive with the limits mentioned and described in the indenture dated March 1st, 1806, and the works constructed by the said J. Rowe were at a distance from and did not communicate with any part of the works done by the said J. A. H., nor were in any manner connected therewith. After the making of the indenture dated January 12th, 1811, J. Rowe continued to dig for copper and copper ore, and other metals and minerals within the limits specified, and dug and made a mine therein, and got quantities of copper and copper ore therefrom, and disposed of the same, and rendered the dues to T. Carlyon. And J. Rowe, for the purpose of more effectually prosecuting the works, erected a counting house, stables, and other buildings within the limits. There never was any building within the same limits except those erected and built by J. Rowe since the 3 B 3

execution

1819.

Dot against Wood.

execution of the last indenture. The surface of the ground under which the workings of J. A. H. were made was waste land which was in possession of the said T. Carlyon, and since the execution of the indenture of the 12th January, 1811, the persons claiming under the same have, by the permission of T. Carlyon, got stone on the waste ground, and used a road over it, and have paid money to T. Carlyon for the getting of such stone, and the use of the road. The special verdict then set out the entry of the lessor of the plaintiff, the demise, and the ouster. The case was argued at the sittings before last Easter term, at Serjeants' Inn, by

Adam for the lessor of the plaintiff., This instrument is not a mere licence, but a lease on which ejectment will lie. It is not disputed that ejectment will lie for a mine; now this is, in legal effect, a demise of a mine. Where all the profits of lands are demised the land itself passes, Co. Litt. 4. b., and he gives the instance of the lands passing by the grant of the boillourie of salt. The same law was also laid down in Parker v. Plummer (a), The Queen v. Winter (6), and in Parramour v. Yardley. (c) So if the most signal profit of the land be granted, the land itself passes as in the case of the prima tonsura, Ward v. Petiser (d), the fold course, Co. Litt. 6. a., herbagium, Wheeler v. Toulson (e), prima vestura, Keilw. 118. Palmer, 174., 1 Ventris, 393. Lord Coke, indeed, Co. Litt. 4. b., intimates an opinion to the contrary in these two latter cases, but the case of Throgmorton v. Tracy (f) confirms the former authorities. Then did

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1819.

Doe against Wood.

all the profits pass by this demise. It appears that by the indenture full and free liberty was given to dig for all tin, tin ore, &c. and all other metals and minerals throughout all the demised lands. This is tantamount to a sole grant of all the minerals. For two individuals · cannot both have full liberty to dig, &c. one must interfere with the other. Then there is the power to make adits, and the use of all the watercourses: and an exclusive right to the adits, amounts, in fact, to an exclusive right to the ore; for the ore cannot be got but by the adits. Then the right to erect sheds, the use of all the water, the right to make watercourses and to use them, are all conclusive to shew that an interest in the soil passed. And the powers expressly reserved to Carlyon are to the same effect. For unless the soil had been granted to Hanley, there could be no reason for making such reservations. Then there is the proviso that in case of the breach of any of the covenants Carlyon might enter on the demised premises and repossess them. Now unless he had previously been out of possession he could not enter and repossess. It is said that the words used are only words of licence. That may be so, and still they may amount to a demise of the land. For it is laid down in Bacon Abr. tit. I eases, K., that “whatever words are sufficient to explain the intention of the parties that the one shall divest himself of the possession, and the other come into it; for such a determined time, such words, whether they run in the form of a licence, covenant, or agreement, will, in construction of law, amount to a lease.” To the same effect are the cases of Trevor v. Roberts (a), Throgmorton

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1819.

Doe against Woon.

v. Tracy (a), Havergil v. Hare (), Jepson v. Jackson (c), and Right v. Proctor (d), where Yates J. observed, that the instrument, even as a licence to inhabit, amounted to a lease. The case of Chetham v. William, son (e) is very distinguishable from the present. There it was held to amount only to a licence, and was not considered as a grant, because there was no exclusive right in the grantees to get the coals, but only a concurrent one with the grantor. And the opinion of Lawrence J. seems there to have turned upon two points which do not exist here; for here Carlyon was seised of the legal estate and no livery was necessary, it being only a lease for years. Then if this amounts to a lease, the second question is, whether there has been any reentry by which it has been avoided. Now in order to constitute a re-entry, the party must enter with an intent to put an end to the lease. But that was not done here; for neither the transactions with Brown, nor the

agreement with Rowe, who was a co-adventurer with Hanley, amount to it. Suppose Carlyon had brought an action for a breach of covenant, these transactions could not have been pleaded in bar to it. But the strongest fact of all is, that in the last set there is a recital which shews that the lease to Hanley was then in force; for it recites that that set was granted in consideration of the surrender of the lease to Hanley ; that therefore is a declaration by the lessor that the lease was then in force, and that his previous acts were not done with the intent of putting an end to it. As to the third point, that the stamp on the letters of administration is not sufficient, it

(a) Plowd. 145.
(c) 2 Lev. 194.
(e); 4 East, 469.

(6) 3 Bulstr. 250.
(d) 4 Burr. 2209.

is

1819.

is enough to advert to 55 G. 3. C. 184. ss. 45. and 49., by which the commissioners of stamps are authorised to stamp letters of administration de bonis non, and to give credit for the duty.

Doe against Woop.

Wylde, contrà. As to the stamp, it is to be observed, that the act in the 49th section seems only to give power to stamp the letters of administration de bonis non upon credit, where the original letters have been also stamped upon credit, under the 45th section. Here, however, the duty was paid on the original letters of administration. (The Court, however, intimating their opinion, that the case fell clearly within the operation of the 49th section, which applied both to cases where the duty had been paid on the original letters of administration, and those where it had not been so paid; he gave up the point). As to the second point, even supposing this instrument a lease, there has been a sufficient re-entry under the proviso for that purpose to put an end to it. First, it is to be observed that Carlyon was already in possession of the lands on which the entry was to be made; for he was to enter on the lands described in the set. In such a case no entry is necessary.

Co. Litt. 218. a. Digge's case, 5th resolution. (a) Shepherd's Touchstone, Condition, c. 6. Butler and Baker's case. (6) If, therefore, a party be either entitled to the legal possession, or be in possession, and the condition be broken, no entry is necessary. But if a re-entry was necessary, there has been a sufficient re-entry here. I'or in the case last cited, it is expressly laid down, that an entry may be made by acts without

(a) 1 Rep. 174.

(6) 3 Rep. 26.

words.

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