for a freehold or a chattel interest, may, upon forfeiture, be determined by simple notice.

In the above case of Roberts v. Davey, the licence was for twenty-one years, and it was observed by Mr. Justice Littledale, that if it had been a freehold lease of land, it would have been necessary for the lessor to avoid it by entry, or, if that were impossible, by claim. But that instrument was a mere licence to dig, and did not pass the land; an actual entry, therefore, was unnecessary to avoid it; but by analogy to what was required to be done in order to determine a freehold lease, it seemed to follow that, to put an end to the licence, the grantor should have given notice of his intention so to do. The giving of such notice in the case of such an instrument was equivalent to an entry or claim by the grantor of a freehold estate to which a condition is annexed (ƒ).

It was held, in a case before cited (g), that a proviso for re-entry was in itself not less applicable to a licence to dig than to a demise of minerals, because under such a licence. works might be effected and a corporal possession had, which it might be competent for the grantor to resume. But this was not meant to convey the impression of the Court that entry was as necessary for avoiding a licence as a freehold lease. A licence to work mines, whether it be for a freehold or a chattel interest, is still an incorporeal hereditament, unattended with any present estate in the land out of which it issues. As such, it is, strictly speaking, incapable of actual entry. The works may be entered upon, but these do not constitute the subject of grant. It follows, therefore, that any such licence may be determined by acts which are applicable to the nature of the property, viz., by notice of the intention of the grantor to take advantage of the forfeiture committed by his grantee; and this notice, it is presumed, may be either express, or implied from acts of entry or of notorious ownership. There is no (f) 4 Barn. & Ad. 672.

(g) Doe d. Hanley v. Wood, 2 Barn. & Ald. 740.

distinction, in this respect, between licences for freehold interests and for years.

It is a general rule of law, that no rent can issue out of any incorporeal hereditament, because such inheritances are incapable of being distrained upon (h). But the Crown is excepted from this rule, because by its prerogative all the lands of the lessee are liable to distress for rent (i). Rent, therefore, cannot, eo nomine, be reserved upon a licence to work mines. Indeed, it may be doubted whether, in the case of an actual demise of mines without land, any rent liable to remedy by distress can issue; for the works would not be demised, and there would be nothing on the subject of demise to distrain. But the reservation of rent will, in either case, be good by way of contract, for the non-performance of which the lessor will be entitled to an action of covenant or debt, for the lessor might otherwise be left without a remedy (k). The covenants of a grantee of a licence, either for a freehold interest or for years, will run with the land (7). Payments under a parol licence to dig earth and make bricks have been held to be in the nature of rents, and to pass with the land (m).

In other respects, the incidents and construction of licences seem to correspond with what has already been said upon the subject of mining leases.

From the preceding observations and cases it will appear very important, when any mining adventure is in contemplation, to ascertain whether the subject of speculation is entirely freed from previous grants and reservations. In cases of freehold leases this subject should receive particular attention, although it has been seen that a sufficient entry may be completed by persons acting under the authority

77.

(h) Co. Litt. 47 a, 142 a, 144.

(i) Ibid. 47 a; 5 Co. Rep. 4, 56. (k) Dalston v. Reeve, Lord Raym.

(1) Portmore v. Bunn, 1 Barn. & C. 694.

(m) Ex parte Hankey, 1 Mont. & Mac. 247.

of the grantor. Allusion has already been made to this necessity for caution in treating of the relation of grantor and grantee. But prudence is equally required, and in all cases of grant, whether for freehold or personal interests, in adjusting the rights of different companies of adventurers. It very frequently happens, in mining districts, that a mine is worked under a licence or a lease, containing the usual clauses of forfeiture and re-entry; and from the want of success the enterprise is virtually abandoned by the company. It is not uncommon for another lease or licence to be granted to other persons, or even to the same persons, in trust, for another company of speculators, a great part of whom many have been members of the old company. At any rate, the mining agent and the leading directors of the first company may continue in the same capacity and situation with respect to the new company. There may be little change in any respect, except in the ordinary event of taking a new interest in the mine and in the substitution of a few dormant proprietors. All acts of ownership may thus be referred to either company, if the interest under the former grant is not effectually extinguished.

It very frequently occurs, particularly in operations for obtaining the metallic ores, that a second or a subsequent adventure is attended with great, and perhaps unexpected success. Questions of prior claim may slumber when the result is doubtful, but when the prospects of a mine begin to be realized, these questions may cause, not only as in Hanley v. Wood, great embarrassment, but great danger of a successful interference. A long course of litigation may ensue, and the mine may either cease to be worked, or the profits may flow into the hands of those who may be eventually declared to possess no title to them. It is no less the duty of the lessor as of the miner to ascertain that any grant under which mining operations are conducted is not liable, from negligence and inattention, to be in any manner prejudicially affected by claims of prior origin, which should have been legally destroyed by properly carrying out the

conditions which control them. In leases under powers, it should be particularly ascertained that there is no prior lease which may prevent any other from being granted. To the lessor, indeed, it might be of no consequence whatever, if the terms of the subsequent grant were equally favourable to his interests as those of the first. But every lessor is morally, if not legally, bound to furnish voluntarily, in such cases, a valid title to the property he professes to dispose of, and especially in those particular matters which the lessee may not have the means of investigating for himself. On the other hand, it will readily be admitted that no circumstance can be more vexatious to a mining adventurer, than after a long course of expense, doubt and anxiety, to be harassed by prior claims, when at length the enterprise has been favoured with the fulfilment of his hopes.

In such cases, however, a Court of Equity will often refuse to lend its assistance in favour of persons urging former claims, and will also interfere to prevent injustice (n).

In one case of this description, a motion for a receiver on the part of the first lessees was refused. Lord Eldon, on that occasion, observed, that in disturbing possession with reference to such a subject as mines, the Court would be taking an extremely strong step; especially if great expenditure had been applied without the interposition of other claimants, until it was excited by the profitable result of that expenditure, in which they would take no share (0).

SECTION V.

STAMPS AND REGISTRY.

I. By the Stamp Act, 13 & 14 Vict. c. 97, leases of any lands or hereditaments which are granted in consideration

(n) See Chap. X. Sect. 4.

(0) Norway v. Rowe, 19 Ves. 156.

of a fine or premium, and without any yearly rent amounting to 201., are liable to the same stamp duties as for the conveyance on the sale of lands for a similar amount. If leases are granted both in consideration of a fine or premium, and also of a yearly rent of 201. or upwards, they will be liable both to the preceding duties and also to the duties payable on an ordinary lease with a reservation of

rent.

The ordinary duties are now thus arranged (o) :

Where there is a fine or premium, and also a rent of 201. or upwards, the lease is liable as well to ad valorem duty in respect of the fine as to the duty for rent.

Leases for a life or lives, not exceeding three, or for a term of years determinable with a life or lives not exceeding three, by whomsoever granted, and leases for a term absolute, not exceeding twenty-one years, granted by ecclesiastical corporations, either aggregate or sole, are excepted when the duties payable would amount to 17. 15s. or upwards, and when a fine is paid; but if no fine is paid, they will be subject to the ordinary duties payable on the amount of rent.

Leases of mines or minerals, with or without any other lands or hereditaments, where any portion of the produce is reserved in money or kind, are thus regulated if the value

(0) 13 & 14 Vict. c. 97; 17 & 18 Vict. c. 83.