1854.

MANN

v.

FULLER.

Judgment.

some reason under such words for the argument, that this was the testator's meaning. But, on the other hand, there is the decision in Gordon v. Hoffman (a), where a testator, by codicil, gave to his son a legacy in addition to the legacy of 2000l. given by his will, having, in fact, given him more than 2000l. by the will; and the late ViceChancellor of England in that case held, that the plain gift in the will was not to be cut down by an uncertain expression in the codicil. The present case is somewhat stronger, because the testator has settled the former sum of 20001. and has given the other, as I think, absolutely.

I quite concur in what was said by the Lord Justice Turner in the case of More's Trust (b), that, where there is a gift by will to A. for life, and after his decease to B., and then another gift to A. in addition to what was before given, there is no authority for carrying on the series of limitations to the latter gift so as to convert it into a gift to A. for life, and then to the party who was named in the former gift to take after A.'s death. It would be more plausible to say, that a life interest only was given to A. in the second case, but that would be inconsistent with the words of this will. The cases have not gone further than this: where the subject of the first gift is given absolutely to the party or is made defeasible, the second gift has been held to be given upon similar terms; for example, if the former gift were absolute and free of legacy duty, the additional gift has been held to have all the same incidents; so, if the former gift is to be lost on a certain event, the additional gift is to be defeated on the same condition. In no case has it been held, that the latter gift is to go to the parties entitled under the subsequent limitations of the former gift.

1854.

RIDGWAY v. SNEYD.

June 6th & 7th.

Mining Lease -Minimum Rent-Injunc tion.

Coal mines were

demised at a certain royalty per ton upon

the coal which

might be got, and also at the year, or so much

rent of 300l. a

thereof as with

the royalty to that sum,

should amount

such rent of

minimum rent

for the coal de

mised. And

the lessee cove

JOHN RIDGWAY, the Plaintiff in this cause, being the lessee and occupier, under different landowners, of adjoining mines and collieries, took from the Defendant a lease for twenty years, by an indenture, dated the 25th of December, 1848, and made between the Defendant of the one part and the Plaintiff of the other part, of all the mines, veins, beds, or strata of coal, cannel, and slack, then opened or known, or which should at any time during the continuance of the said demise be found lying under the closes of land therein described, part of which belonged to the Defendant, and part had been sold by the Defendant to Richard Baddeley, reserving to the Defendant the coal under them, and power to get the same; and the Defendant also demised to the Plaintiff, in like manner, certain surface land, yielding and paying to the Defendant for the whole of the coal and cannel thereby demised, which the Plaintiff should get during the continuance of the demise, the rent and royalty thereinafter mentioned, that is to say, the sum of 1s. for every 2520 lbs. weight of such coal or cannel, and so in proportion for a less quantity than 2520 lbs. And also yielding and paying to the Defendant for the whole of the slack thereby demised, which the said Plaintiff should get during the continuance of the demise (except such part of the said slack as therein particularly mentioned), the rent and royalty thereinafter mentioned, (that is to say) the sum of 6d. for every 2520lbs. weight of such slack, and so in proportion for a less tity than 2520lbs. And also yielding and paying yearly and every year during the continuance of the said demise unto the said Defendant for the coal, cannel, and slack thereby the case of

nanted to pay the rents, and mine:-Held,

to work the

that a Court of

equity would action by the lessor for the although the

not restrain an

minimum rent,

coal proved to

be not worth the expense of

working; but that, if the les

sor were to sue

covenant to

upon the lessee's work the mine, the Court would quan- interfere.

In applying

the rule of caveat emptor to

leases of coal mines, it must

be remembered that every one acquainted with that kind of property is aware that coal mines are liable to be interrupted by faults.

If all the coal had been gotten by ancient workings, that might be a case for equitable relief. VOL. I.

X X

E. K. W.

1854.

RIDGWAY

V.

SNEYD.

Statement.

demised, the rent or sum of 300l., or such part thereof as with the several rents, royalties, and sums of money thereinbefore reserved would amount to that sum; and yielding and paying 41. per acre for the surface land demised: all such rents and royalties to be paid half-yearly upon the usual quarter days in June and December. And it was thereby provided and declared, that the said yearly rent or sum of 3001. thereinbefore reserved was so reserved as and for a minimum rent for the said coal, cannel, and slack thereby demised, in each and every year during the continuance of the said demise; and that, subject to the proviso thereinafter contained, anything therein contained should not in anywise prejudice or affect the right of the said Defendant to have or receive the whole of the several other rents, royalties, and sums of money therein before reserved in respect of such coal, cannel, and slack in each and every year during the continuance of the said demise, in which the same should exceed the sum of 3001. And the lease contained clauses usual in mining leases, dividing the whole term into periods, at the end of which, if the rent and royalty thereby reserved in respect of the said coal, cannel, and slack (exclusive of the said annual rent of 300%. and the surface rent of 4l. per acre) should exceed, in the aggregate, 300l. a year, and if in any year of such period the several rents, royalties, and sums of money, exclusive of the said annual rent of 300l., and the said rent of 41. per acre, should not amount to the sum of 300%., then the Plaintiff should be entitled to deduct from the excess of the aggregate amount of such rents, royalties, and sums of money for such five years, above the sum of 300l. a year, any sum which he might have paid to the Defendant in any year or years of such period, to make up the rents, royalties, and sums of money therein before reserved in respect of the said coal, cannel, or slack to the sum of 300l. in each of such years.

And it was thereby also provided and declared, that the

mines of coal, cannel, and slack thereby demised should (subject as thereinafter mentioned) be worked and gotten in the same progressive and regular course as the mines of coal, cannel, and slack of the Plaintiff in and under the land adjoining thereto. And the Plaintiff covenanted for the due payment of the said rents and royalties; and that the Plaintiff and his agents, servants, workmen, and miners would, from time to time and at all times during the continuance of the said demise, work, raise, and get the mines thereby demised in and under the said lands of the said Defendant, and also, subject as thereinafter mentioned, the mines in and under the lands of the said Richard Baddeley continuously, uninterruptedly, and in proper and workmanlike manner, and in the same progressive and regular course as the mines of coal, cannel, and slack of the Plaintiff in the said lands adjoining thereto should be gotten, obtained, and raised, and clear the said mines thereby demised in and under the lands of the said Richard Baddeley in the best way, as was usual in mines and works of the like description. And that, if at any time during the continuance of the said demise the mines of coal, cannel, and slack, or any of them, in and under the lands of the said Richard Baddeley, or any part or parts thereof, could not, by reason of the damage which would be occasioned thereby to any erections on the said lands of the said Richard Baddeley, or to any mill to be thereafter erected thereon, or any part or parts thereof, or from any other cause whatsoever (except any cause arising from the act or omission of the said Plaintiff or his agents, servants, or workmen), be worked, obtained, gotten, and raised with profit and advantage to the said Plaintiff, then and in such case the said Plaintiff should not be called upon or required to work, obtain, get, or raise any such part of the said last-mentioned mines. And in case of disagreement, the fact of the said Plaintiff being able or unable to work,

1854.

RIDGWAY

V.

SNEYD.

Statement.

obtain, get, and raise the said mines or any of them, in and under the said lands of the said Richard Baddeley, or any part thereof, with profit and advantage for the reasons aforesaid, should be ascertained by reference to arbitration. as thereinafter mentioned. And the said indenture contained powers of entry and distress in case all or any of the rents, royalties, or reservations therein before reserved, or the sum or sums of money therein before made payable, should happen to be unpaid for the space of fourteen days next after any of the said half-yearly days or times therein before appointed for the payment thereof. And a proviso for re-entry upon the said mines and lands in the events therein mentioned. And the usual provisions for arbitration, in case, during the continuance of the said demise, or after the expiration thereof, any variance, controversy, doubt, dispute, or question should arise between the said parties thereto touching or relating to the said indenture, or any clause, covenant, proviso, matter, or thing therein contained, or the construction of the same, or touching or concerning the practicability of the getting of any part of the thereby demised mines, according to the usual course of mining operations, or in any respect relating to the thereby demised mines and premises.

The Plaintiff had discontinued the working of the mines, and the Defendant had brought an action against him for the minimum rent of 3001.

The Plaintiff filed this bill, praying for an injunction to restrain the Defendant from all further proceedings in the action commenced by him against the Plaintiff, and from commencing or prosecuting any other action or proceeding against the Plaintiff upon any or either of the covenants contained in the said lease, and for an account of the quantity of coals, cannel, and slack, by the said lease capable of being raised at the date thereof from