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of mines.

What acts lord without licence from the tenant, can open and are deemed

work new mines, unless there is a custom which waste.

sanctions it (a), and accordingly an injunction was granted by Lord Erskine and continued by Lord Eldon, to restrain the lord of a manor, who was preparing to open a mine and dig for coal upon the land

of a copyholder (6). Court of A court of equity, considering the peculiar nature equity un

of mining concerns, in which an immense expendiinterfere to ture is required, to renew operations which have restrain the working once been stopped, will rarely interpose by injunc

tion, till the right has been established at law; and it will be particularly unwilling to lend its assistance, where the defendant happens to be tenant for life under a settlement, and if it does, will not continue the injunction without securing the means of a speedy trial (c). It will also refuse to interpose if the plaintiff has been guilty of laches (d): it frequently happening, as observed by Lord Eldon, that mining concerns remain for years in a hopeless state, and afterwards, when a great expense has been incurred, turn out extremely lucrative: persons will therefore stand by and see the expenditure incurred; if it turns out profitable they will set up their claim, if not, have nothing to do with it(e). If such has been the conduct of the plaintiff the court will, at all events, not interpose upon

(a) Lord Cowper has observed, that a custom empowering a tenant to dispose of one sort of mineral may be evidence of their right to another.

(6) Grey v. Duke of Northumberland, 13 Ves. 236, 17 Ves. 281.
(c) Ib. 17 Ves. 281.
(d) Birmingham Canal Company v. Lloyd, 18 Ves. 515.
(e) 19 Ves. 159.

motion, and will probably refuse to grant relief at What acts the hearing, as in a case before Lord Rosslyn, where are there

om are deemed the plaintiff and defendant having been partners in a coal mine, under a lease with a right of renewal; a renewal had been obtained by the defendant, but a bill was dismissed, on the ground that the plaintiff having waited until the concern appeared, in consequence of the property embarked in it by the defendant, to be profitable, and having kept aloof while it was hazardous, had thereby lost the equity which he had by the renewal of his partner (a). Conduct of this nature is, however, no ground for Grant of

mines not to presuming a grant of mines against an express re- be presumed servation : as in a case mentioned by Lord Eldon, from the

party not where an estate had been sold two hundred years having before, with a reservation of coal mines, which were worked. at length brought to bank by the application of machinery at an immense expense, by the person in possession of the surface, who had forgotten the reservation. The other party then came forward, and upon the trial of an issue Mr. Justice Buller directed the jury to presume a grant, from the cira cumstance of the proprietor having stood by during the whole of the expenditure: this direction, however, was afterwards established to be erroneous (6).

(a) Senhouse v. Christian, cit. 19 Ves. 157. Vide also East India Company v. Vincent, 2 Atk. 282.

(6) Adair v. Shaftoe, cit. 19 Ves. 156.

Persons for and against whom In- . junction granted.

CHAPTER IX.

In what Cases, and for and against what Persons, a

Court of Equity will interpose to restrain the Commission of Waste.

Prohibition and writ.

The proceedings at common law in Waste were originally by prohibition out of Chancery, which was the foundation of the suit: it was directed to the sheriff, and if not obeyed, and an alias and pluries produced no effect, a writ of attachment was issued out of Chancery, returnable in a court of common law, which was the original writ of the court (a). By the statute of Westm. 2. this writ was taken away, and the writ of summons substituted in its place. Lord Chief Justice Eyre, in noticing Lord Coke's assertion, when treating of prohibition at common law, that it “ may be used at this day,” observes, that these words, if true at all, can only apply, to that very ineffectual writ directed to the sheriff, empowering him to take the posse comitatus to prevent the commission of waste intended to be done (b). How far this remedy continued as applicable to Ecclesiastical persons will be noticed hereafter. This writ, being returnable in a court of common law, the question was tried; and if the defendant was found guilty, the plaintiff recovered single

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damages. The statute of Gloucester (a) directed Persons for that the tenant should forfeit the place wasted, and and against also treble damages.

junction The action of waste has fallen so completely into disuse, that the case of The Keepers, &c. of Harrow Action of School v. Anderton (6) has been mentioned as the waste. only instance of it remembered by persons now living; an action on the case being generally substituted in its place: but as it has been determined that an action on the case will not lie for permissive waste (c), it may possibly still become necessary to have recourse to the ancient mode of proceeding.

The common law had also another remedy for the Writ of Esinjury of waste, of a preventive nature, in the writ of trepement. Estrepement. This lay after a judgment obtained in a real action, before possession delivered by the sheriff, to prevent the defendant from committing waste in the lands recovered. Another writ was afterwards given by the statute of Gloucester to prevent the defendant from committing waste during the suit, which was called the writ of estrepement pendente placito.

This method of obtaining preventive redress has Bill in now, as well as the action of waste, fallen entirely equity. into disuse; and given way to a more easy, expeditious, and complete mode of proceeding by Bill in equity, to stay waste either threatened, or which the party is in the act of committing, and for an account of such waste, as may have been already done. This

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Persons for course of proceeding, while it is open to many perand against

sons who could not take advantage of these legal junction remedies, at once unites the advantages of both, by

restraining, in the most expeditious manner, the commission of future waste, and enforcing, by means of the decree for an account, a compensation for past. An injunction may be granted to restrain permissive as well as voluntary waste (a).

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Tenant for life, or for years.

The most ordinary instance, of the interposition of a court of equity, is, by injunction to restrain the commission of waste by Tenant for life or for years, upon the application of the owner of the inheritance (6).

An estate for life is always impeachable for waste, unless the contrary is provided by positive limitation (c). Thus where a devise containing precatory words was, by a decree of the Master of the Rolls (d), declared (according to the well known doctrine in Chapman's case (e)) to constitute the defendant tenant for life only in her own right, and a trustee of the remainder in fee for the

(a) Caldwall v. Baylis, 2 Meriv. 408.

(6) There is an old case in Cary where a copyholder, dispunishable for waste, had made a lease for years, and the lessee committed waste, and justified it on the ground of the copyholders of that manor not being punishable: the court, however, granted an injunction. Dalton v. Gill, Cary, 90.

(c) Cole v. Peyson, 1 Ch. Rep. 57.

(d) Wright v. Atkyns, 17 Ves. 255 Afterwards affirmed on appeal, 19 Ves. 299. Coop. 111.

(e) Dyer, 333.

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