purchaser, which might expose him to the complete waste of his estate. There was, in the case of Seaman v.Vaudrey, a stipulation in the deed of reservation, that the right to work the mines was exercisable without incurring any liability for damages. No compensation, short of the amount of purchase-money, might satisfy such a case as this. In such instances, extraordinary caution is required, and still stronger evidence of the non-existence of mines should be adduced, in order to compel the performance of a contract. Where there is no probability of there being any mines, the purchaser is subject to the caprice or ignorance of individuals, who, in spite of appearances or the dictates of experience, may choose to embark upon a reckless adventure in search of minerals, which are not there to be found. The fact of improbability, therefore, should be based upon such competent and substantial evidence as may justify the Court in exposing a purchaser to such a risk. It is no objection to a bill for setting aside a contract that the purchasers have been in possession, and have made great alterations in the property. It is enough that they act fairly in the management of the property, and take the natural exercise of the rights of supposed owners (k). The purchaser of an estate sold under a decree in Chancery is entitled, as a general rule, to be let into possession from the quarter day preceding his purchase, on paying the purchase-money before the succeeding quarter day (1). But this rule has been held to be inapplicable to the case of a colliery, in which the accounts of the concern were settled monthly, and in which there was no such thing as a quarter day; for the profits of such property may produce more in one quarter than in the preceding ten years. A colliery is a trade, and not merely a property in land. The purchaser was, therefore, declared to be entitled to the profits from the commencement of the month in which he purchased, paying his purchase-money in the course of (Small r. Attwood, 1 You. 506. that month (m). A person is not considered to be an absolute purchaser until the confirmation of the master's report (n). The practice of opening biddings in sales under decrees in Chancery has often been justly reprobated. On one occasion, Lord Eldon said, during a period of nearly half a century which he had passed in the Court, he had heard one and all of its judges lament the introduction of the practice (o). It is now, however, firmly established by numerous cases, and almost daily experience. But the rules with respect to opening biddings do not apply to the sales of mines. In the case of a colliery, an order for opening the biddings was made by the ViceChancellor, but it was discharged by Lord Eldon, who observed, that land kept generally the same value; but collieries were liable not only to fluctuations in value, but to destruction; they were like land in a country liable to earthquakes. Again, upon a re-sale of the property the purchaser might be tired of his bargain before he has completed his purchase; and although the Court might compel the final bidder to pay the money, the process was such, that, in a great many cases, it was more for the interests of the vendors to abandon the bargain, than to put in force the process of the Court. Not even a bonâ fide bidder can, in any case, be said to have any right to open the biddings. The question was, whether regard being had to the nature of the property, the circumstances of the case, and the general interest of the suitors of the Court, not to the interest of purchasers, so much advantage was held out as to induce the Court to open the biddings (p). In the above case, the purchase could not be confirmed for a considerable time, and it became necessary to take into consideration who should have the intermediate ma (m) Wren v. Kirton, 8 Ves. 502; Williams v. Attenborough, Turn. & Russ. 70. (n) Twigg v. Fifield, 13 Ves. 517; Garrick v. Earl Camden, 2 Cox, 231. (0) Turn. & Russ. 75. (p) Williams v. Attenborough, Turn. & Russ. 70. nagement. It was finally agreed, that the purchaser should work the colliery under the superintendence of the trustees. It was observed by the Court, it would have been folly in the purchaser if he had not insisted on having in some measure the management; for if, between the day of bidding and the confirmation of the purchase, the value of the mine had fallen from accidental causes injurious to the working, from some rival coal mine, or a destructive inundation, still, if the title had been completed at the time his report was confirmed, he would have been compelled to take the property without entering into the question, whether the management had been advantageous or disadvantageous. It was added that if the management had been advantageous, to discharge a purchaser under such circumstances, upon giving him his costs merely, without making some allowance for the expenses incurred in the management, would be treating him in a way very detrimental to the general interests of all those who have collieries to dispose of, through the intervention of the Court (q). Under a recent statute, money to a limited amount may be advanced, at interest, out of the consolidated fund "for the support of any collieries or mines" (r). (q) Williams v. Attenborough, Turn. & Russ. 70. (r) 5 & 6 Vict. c. 9, s. 11. CHAPTER VIII. LEASES AND LICENCES. I. Mining Leases-General Description. III. Specific Performance and Equitable Relief. V. Stamps and Registry. SECTION I. MINING LEASES-GENERAL DESCRIPTION. THE greatest portion of the mineral districts of the kingdom is worked under leases or licences, and questions of importance are frequently arising with respect to the validity and construction of these instruments. The subject has, therefore, been reserved for distinct consideration. A lease should, after a proper description of the parties, demise, under an adequate description, the subject of contract. When all the mines or quarries of any particular metal or mineral within certain lands form the subject of demise, no dispute can well arise, except with respect to the actual boundary of the surface, or that below corresponding with the surface. In such cases, all the specified products found within the line of demarcation will belong to the lessee. But metals are usually deposited in veins or lodes; and not like coal, which is always found in a state of stratification, corresponding, more or less, with the form of the surface. In such cases it is not an uncommon practice to demise all the minerals within certain surface bounds; but it is also usual to demise only particular veins, or known, or supposed deposits of metalliferous substances. These veins are demised for a certain length, and with a proportionate and adequate breadth. When there is only one adventure in operation within the same field little difficulty is experienced; for if a new vein is discovered in the course of the workings, the right to which it is desirable to acquire, this desire may usually be gratified without infringing upon the rights of other adventurers. But the lessor may, in some cases, be induced to withhold any further extension of the grant, though, it must be acknowledged, that, in general, the conduct of extensive owners towards mining adventurers is marked by great liberality and fairness of dealing. It also often happens that many of the veins, which may have been traced from a greater or less distance, are actually in lease at the same time, in the same parcel of ground. Thus, veins in the possession of different lessees may actually intersect each other; or, if not intersecting each other, the veins may, at any rate, come within the boundary prescribed for the proper breadth in each demise, or they may run into a district comprised in a deed of general grant. In such cases there can be no doubt that the first grant must be sustained in all its vigour. Qui prior est in tempore, potior est in jure. The second lessee cannot claim what has been already granted to the first. But the difficulty is frequently only half solved by this plain rule of law. It may, in many cases, be exceedingly difficult to ascertain the identity of a vein, and a vein may be improperly or imperfectly described in the grant. These difficulties may also be increased by the nature or disturbance of the stratification of the earth. It would be impossible, in a treatise of this description, to give any accurate idea of the difficulties which might be occasioned by imperfect description; or to enter into any enumeration of the geological phenomena which might render the clearest description of no avail in ascertaining the rights of the parties. To instances of the first kind there are no limits but those prescribed to the imperfections of language-and Nature, in her subterraneous operations at least, is not more |