The bill prayed that the agreement might be specifically performed, and that it might be declared that the plaintiff and his agents ought to have a reasonable right of entry into the mines during such times as any part of the purchase money should remain unpaid, and that it might be referred to the master to settle the draft of the deed of conveyance and covenants to be executed by the plaintiff and the defendant for carrying the agreement into effect.

The defendant, by his answer, admitted the agreement, and that he had since worked the mines thereby contracted to be purchased. The defendant also said that he was very conversant with the working of coals and other minerals, and he believed that, in leases of minerals, or in sales of minerals, to be paid for by a royalty, according to the quantity of coals or minerals raised and gotten from or out of the lands and hereditaments so demised or sold, it was usual to insert powers anthorizing the landlord or vendor, as the case might be, to enter and inspect the workings for such coals and minerals, in order to see that no waste was committed, and that the said coals and other minerals were worked in a proper and workmanlike manner; but that in the purchase of minerals by surface measure, no such power was, in ordinary cases, given to the vendor.

Several witnesses, mining agents and others, examined on behalf of the plaintiff, deposed that it was agreeable to the usage and custom of the mining districts in that part of the county of Warwick, as between the seller and purchaser of mines, in cases where the time and mode of the payment of the consideration money depended on the manner of working the minerals, and the extent to which the same were worked in each year, that a power of entering into the mines, for the purpose of viewing the same, should be reserved to the seller. On behalf of the defendant, several witnesses deposed that, in leases and sales of mines by royalty, the lessor or vendor usually reserved a power for a mine agent to go down to inspect the work, and sec that the mines were properly worked; but in a sale of mines by surface measure, they never knew such a power reserved to the vendor.

Mr. SHARPE, and Mr. JAMES PARKER, for the plaintiff.

Mr. BOTELER and Mr. COCKERELL, for the defendant.

The title of the plaintiff to require the introduction into the deed of the covenant in question, was argued, first, upon the ground of whether it was a reasonable and necessary covenant for the protection of the interest which the vendor had under the deed; secondly, upon the evidence of custom; and thirdly, upon the conduct of the parties.

To the third ground, as it formed no element in the judgment, it has been thought necessary to refer in the statement of the case.

VICE-CHANCELLOR:

I abstained from giving a final judgment in this case at the close of the argument, from the desire of referring, before I did so, to the cases that illustrate the principle by which my present decision must be governed in order that it might distinctly appear to what extent the judgment I should pronounce depended upon general principles, and to what extent it depended on the evidence given in this cause.

The general principle of law, that, where a person makes a grant of any given thing, he impliedly grants that also which is necessary to make the grant of the principal subject effectual, does not admit of dispute: Pomfret v. Ricroft, 1 Saund. 321, and notes. And this principle is carried to the extent that the implied grant entitles the lessee to whatever is necessary to the full enjoyment of the subject of the grant: Senhouse v. Christian, 1 T. R. 560. In determining what are usual and proper covenants in a case like that before me, regard must be had to the principle I have referred to; for the reasoning which would apply to a grant must, in principle, apply to a case like the present, so far as relates to the right of the parties to have preserved to them, not only the interest, but the means of protecting the interest which they are to take. Further than that I do not consider I ought to go.

In Henderson v. Iay, 3 Bro. C. C. 632, the question was whether, under an agreement to grant a lease upon common and nsual covenants, the lessor was entitled to a covenant from the lessee not to assign without license. Lord Thurlow decided that the lessor was not so entitled, upon the ground

that common and usual covenants could only be understood to mean covenants "incidental to the lease." By the term "incidental to the lease," I understand Lord Thurlow to mean such covenants as were necessary to protect a leasehold interest, without affecting its legal incidents, and no other covenants. Considerable doubt appears to have been thrown upon this decision by the case of Morgan v. Slaughter, 1 Esp. 8, and the case of Folkingham v. Croft, 3 Anst. 700. But in the subsequent case of Church v. Brown, 15 Ves. 258, Lord Eldon, after great consideration, upheld Lord Thurlow's decision in Henderson v. Hay, and decided that it made no difference whether the agreement declared that the lease contracted for was to contain the usual and proper covenants or not; that, in every agreement, whether as to freehold or leasehold estate, it was implied that there were to be usual and proper covenants; that both lessor and lessee would be entitled to such covenants as were strictly incidental to the subject of the agreement, and to no others. Speaking of a covenant to sell a fee-simple estate, free from incumbrances, he says: "It is clear that covenant carries in gremio, and in the bosom of it, the right to proper covenants; " and he explains the reason to be, that at all times, such covenants have been carried into execution in a particular manner; and he afterward extends the reasoning to other cases upon the same principle. In case of an agreement for a lease, with a stipulation that the lessee should keep the premises in repair, a right of entry was uniformly reserved to the landlord, as a right incidental to the interest reserved to him by the agreement. Covenants become usual and proper covenants only because, by common consent, they are found essential to perfect the contract between the parties.

To apply this reasoning to the present case-it is proved in evidence that where coal mines are either let or sold at a royalty, with stipulations as to the manner of working the mines a right of entry to view the mines is reserved to the lessors, for the twofold purpose of seeing-first, in what manner the mines are worked; and, secondly, the quantity of minerals obtained. A covenant or proviso for this purpose is admitted to be incidental to the contract for such a lease or sale. The contract, without any express stipulation would, in Lord El

don's language, carry in gremio, and in the bosom of it, the right of entry, which was necessary to protect the interest of the lessor or vendor. How does the present case differ from that? It differs from it in this respect only, that the lessor having no interest in the manner of working the mines, but having an interest in the quantity of minerals worked, a question may arise, whether the right of entry to which he would be entitled, if his interest extended to both, must not be reduced to such right of entry as will suffice to protect the single interest which he has; but his right to the incidental covenants as to that interest must remain. In the absence of any evidence but that to which I have referred, and which the answer of Mr. Whieldon confesses, I should think that the conclusion I have stated was irresistible.

The case does not, however, rest upon any conclusion merely so derived. The issue distinctly tendered in the cause by the plaintiff was, that the power of inspection was a usual reservation in cases like the present. Witnesses have been examined on this point by both parties, and the evidence of the witnesses for the plaintiff-scarcely more forcible than that of the defendant's witnesses-inevitably leads to the same conclusion. In fact, all the evidence proves it. There must, therefore, be a decree for a specific performance of the agreement, giving the plaintiff such a power of entry and inspection as will enable him to protect his interest in the property, but not extending beyond what may be necessary for that purpose.

MINUTE OF DECREE.--The agreement of the 6th of April, 1838, to be specifically performed. The defendant admitting that he has accepted the title, and the plaintiff waiving all claim to interest upon the installments of purchase money remaining unpaid, refer it to the master to settle the conveyance for carrying the agreement into effect, in case the parties differ; and in settling such conveyance, the master is to insert therein a clause empowering the plaintiff and his agents, at all reasonable times, and upon reasonable notice, to enter the mines in the pleadings mentioned, and to inspect and measure the same, so far as from time to time may be necessary, for the sole purpose of ascertaining whether the quantity of minerals, which should or may be gotten or worked in each year, has exceeded, and how much, if anything, an acre, until the whole quantity of coal under the said twelve acres shall be gotten or worked, or the whole of the twelve installments mentioned in the pleadings shall be paid; and in settling the said conveyance, the master is to have regard to the clauses usually contained in

leases and sales of coal at a royalty. Liberty to the master to state special circumstances. Costs to be reserved. The parties to be at liberty to apply.

LEWIS V. MARSH.

(8 Hare, 97. High Court of Chancery, 1849.)

1 Inspection through shaft on foreign ground. A coal lease limited the right of lessee to mine within a certain distance of buildings. The lease did not reserve a right of inspection and the mine was worked through a shaft on other land of the lessee without any openings on its own surface: Held, on bill to restrain the working of the reserved ground, that lessors should have leave to inspect and to enter through the defendant's shaft on defendant's ground, for that purpose. Objectionable individuals excluded as viewers.

A bill by the lessors of a colliery against the lessees for an account of the workings of certain portion of the coal by the defendants, and to restrain the working in certain parts of the mine reserved by the lease. The defendants were entitled by the lease to work the coal, subject to a certain rent per ton, under an area of about 160 acres with an exception of the coal lying under and within thirty feet of certain buildings. It was admitted by the answer that the defendants had worked some of the excepted coal. There was no provision for inspection in the lease, and the defendants had worked the coal through a shaft in an adjoining mine belonging to themselves, so that the demised mine could only be entered through the defendants' mine.

The SOLICITOR GENERAL and Mr. W. M. JAMES, for the plaintiffs, moved that, the defendants might be ordered to permit the plaintiffs, and certain persons mentioned in the notice of motion, all or any of them, with workmen and other necessary assistants, at all reasonable times, and from time to time, to have access to the coal works of the plaintiffs in and through the adjoining coal works of the defendants, to 1 Stockbridge Co. v. Cone Works, 6 M. R. 317; Whalley v. Ramage, 8 M. R. 52.