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1819.

Doe against WOOD

the grantor parting with no estate or interest in the rest. If so, the grantee had no estate or property in the land itself, or any particular portion thereof, or in any part of the ore, metals, or minerals, ungot therein; but he had a right of property only, as to such part thereof as upon the liberties granted to him should be dug and got. That is no more than a mere right to a personal chattel, when obtained in pursuance of incorporeal privileges granted for the purpose of obtaining it, being very different from a grant or demise of the mines, or metals, or minerals, in the land; and is such a right only as, under the circumstances stated in this case, is not sufficient to support the present action of ejectment. This, we think, is the effect and operation of the deed, considering it with reference to its granting part only; and we are fortified in this opinion by the construction given to similar words of grant in Lord Mountjoy's case, Godb. 18., 1 And. 307., and 4 Leo. 147.; and in Chetham v. Williamson, 4 East, 169.; even if the liberty granted be to be considered a liberty to get, exclusive of the grantor ; and a fortiori, if it be, as in those cases, to be considered as not exclusive: that, however, is a point which it is unnecessary for us now to decide. It was contended, that in order to make a demise, or to pass such an interest in the soil as will support an ejectment, formal words of demise need not be used; and that words importing an intent in the grantor to divest him. self of the possession for a time and vest it in another, operate in law as a lease, whatever may be their form; and further, that words shewing such intent appear in different parts of this deed. The words alluded to are such as these, viz. “the land hereby granted,” “ the ground and premises hereby granted,” and “the land or ground hereby granted," which occur in some of

the

the clauses and covenants of the deed; and among others, in the clause of re-entry, upon which particular reliance was placed. A proviso for re-entry is in itself not less applicable to a licence to dig, work, mine, and search for metals and minerals, than to a demise of metals and minerals, because, under such a licence, works may be effected, and a corporal possession had, which it may be competent for the grantor to resume; so that the argument rests upon the particular expressions used in the deed, and not upon the nature or quality of the clauses or provisions in which they are used. These expressions may probably be attributed to want of care and caution in the preparation of the deed; but supposing them not to be attributable to inadvertency, or supposing that we should not be justified in so attributing them, still they can, in our opinion, have no further effect, than to shew, that the grantor who used them supposed that the soil or minerals, and not a mere liberty or privilege, passed by his deed; and if the words used in the granting part of the deed were of doubtful import, and would bear the construction for which the lessor of the plaintiff contends, such doubtful words of grant, aided by the others, shewing the intent, might be sufficient to pass the land or soil, or minerals themselves, and to support an action of ejectment. But whatever doubts these expressions may cast, yet we think they are not sufficient to vary the construction that must be given to the words of the granting part of this deed, as those words are, in themselves alone, plain and not of doubtful import, and as the proper office of that part of the deed is, to denote what the premises or things are that are granted, and is the place where the intent of the grantor, and what he has actually done in that re

1819.

Doe against Wood.

spect,

1819.

DOE against Wood

spect, is more particularly to be looked for, recourse must be had to the proper and efficient part of the deed, to see whether he has actually granted what it is urged his expressions denote that he supposed that he had granted: for the question properly is not what he supposed he had done, but what he really has done by his grant. For these incorrect expressions, the precise import of which he might not accurately attend to, are not sufficient to constitute a grant, or to operate so as to extend the grant, by converting the things granted from incorporeal to corporeal, and from chattels personal when gotten, into a chattel real, previously to their being gotten, which must be the case, if we were to adopt the reasoning on behalf of the lessor of the plaintiff, as to the effect and operation of the deed, and which would carry the rights of the grantee much further than the grant of a licence or authority extends.

Upon the third question we are also of opinion in favour of the defendant, and think the acts mentioned in the special verdict as done by the grantor, and under his authority, amount to, and are to be considered as a re-entry under the proviso so as to put an end to the term created by the deed. It is clear that the grantor had, under the proviso, a right to re-enter by reason of the grantee's breach of covenant in not effectually working when not prevented by water or other inevitable impediment. The acts done either by the grantor himself, or under his authority, on part of the lands within the above limits, either in consequence of his negociation and agreement with W. Brown, or of his agreement with Oliver IVoolcock and others, or of his indenture made to J. Rowe, amount in law, we think, Vol. II. 30

to

1819.

Doe against Wood.

to a re-entry and to a determination of the above grant of the Ist March, 1906. Those acts, if done by a stranger, or other person having no right or authority to enter, would be wrongful, and so they would be in the present case though done by the grantor, or under his authority, if the above grant can be considered to have operated as a demise either of the soil or of all the ore, metals, and minerals within the described limits, unless those acts be deemed to be in law an entry by the grantor, and a remitter of him to his former estate by a determination of his grant; and the authorities shew that those acts must be deemed to be in law such an entry and remitter. In Plowden, 92., it appears that if a person having a right of entry has done any act, so that the disseisce might have an action against him if he was a stranger, the law saith that rather than he shall be punished it shall be an entry and remitter to him. So in Co. Litt. 55. entry into land without the consent of the lessee, and cutting down a tree where the trees were not excepted out of the demise, are considered to be an implied ouster, and a determination of the will, for that it would otherwise be a wrong in him; and a lessor's putting in his beasts to use the common appendant is also considered as a determination of the will. And in Co. Litt. 245. b. the mulier's coming upon the ground upon his own head, and cutting down a tree, and dig. ging the soil, or taking any profit, are slated to be interruptions, for (the book says) “ rather than the bastard shall punish him in an action of trespass, the act shall amount in law to an entry. So it is, if the mulier put any of his beasts into the ground, or command a stranger to put on his beasts, these do amount in law to an entry.”

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It was urged on the part of the lessor of the plaintiff, that the words of the deed of the 12th January, 1811, by which that deed is expressed to be made partly in consideration of the surrender of the grant of 1806, together with the fact of the actual receipt of the deed of that date by Mr. Carlyon, from Mr. Rowe, into whose hands it had come, shewed that none of the acts done by the grantor, were or were intended to be a re-entry under the proviso contained in the deed of 1806. But we think such an effect cannot properly be given to those circumstances, and that they ought to be considered only as matters of caution, intended to preclude the question which, unfortunately, has since been raised. If, therefore, the grant in question can be considered to have been a demise of the land, or of all the ores, metals, and minerals within the limits de scribed, yet it was determined by the above acts done by the grantor, or under his authority, amounting in law to a re-entry; in which case the present action of ejectment cannot be maintained. For these reasons, the judgement of the Court must be for the defendant.

Judgement for the Defendant.

BARCLAY and Others against FABER.

Friday,'
June 18th.

THE defendant was arrested in the vacation at the A defendant, suit of Messrs. Thuret and Co. of Paris, and on from arrest at

the time, was the first day of this term a rule nisi was obtained arrested on an

insufficient affi. davit to hold to bail, and afterwards, on that ground, discharged out of custody. During bis imprisonment, another creditor, without collusion with the former, lodged a detainer against him: Held that such detainer was properly lodged.

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