ures are to be dealt with; the 17th and 19th direct allotments to be made for public purposes, including a conduit head, and the 20th section directs the second allotment for turbary for the cottagers; and the sections from 21 to 24 direct the third allotments, which are in lieu of tithes.

Then comes the 27th section which directs the fourth allotment to the lord of the manor, in lieu of his right and interest in the soil of the waste lands.

The 28th directs the fifth allotment of certain lands to the town of Poole, and the 29th section directs the sixth allotment of the residue for the benefit of the commoners. Then comes the 58th, or the special saving clause.

The question is, whether the reservation of minerals extends to all the lands inclosed in which the lord has any interest, or is confined to certain, and if so, to what portions of then.

I think I can dispose of the cases cited; none of them are precisely in point. In one case, Townley v. Gibson, 2 Term Rep. 701, the mines were not reserved to the lord, and there can be no question that the case wou'd apply, if the words "nines and minerals" were not specially mentioned in the 58th clause, and that the lord's right to them had been disposed of by previous clauses. The 29th section, which directs the allotments to be made to the commoners, and the 27th, which gives compensation to the lord for his right to the soil, are quite general, and it is clear that if the question depended on those two sections alone, they would necessarily include all the minerals; but the 58th clause says, that nothing therein contained shall prejudice the lord's right to the mines and minerals.

It is said that the 58th section does not apply to or include. the waste lands when inclosed and allotted to the commoners, because, by the special enactment (the 27th) a compensation is provided for the lord for his interest in these lands, and that there are other lands to which this section may apply, namely, those which are to be allotted for public purposes and to provide fuel for the cottagers, as to which nothing is done to disturb the right of the lord to the minerals.

I can not, however, see anything to limit this 58th section, and I think so the more, from the peculiar use of the word. VOL. VIII-20

"soil." Prima facie, it would include every thing above or below it; but the word "soil" is throughout this act used as distinct from the word "land."

The 6th section authorizes the commissioners to determine any dispute of any parties "interested in the said lands," but not their title, and the 7th declares the determination of the commissioners, touching the right of the soil, to be final. My impression is that in this act of Parliament the use of the word "soil" is distinct from "land."

This act directs that the allotment to be made to the lord is to be "in lieu of and in full compensation for" his "right and interest in and to the soil."

Now, referring to the dictionaries, I find that Johnson's second definition of the word "soil" is "earth considered withi relation to its vegetative qualities." And in Richardson, the definition of the word is this, "The earth, land, ground; land with reference to its produce."

There is a clear distinction between "soil" and "land." Webster's third definition of soil is, "3. The upper stratum of earth; the mould, or that compound substance which furnishes nutriment to plants, or which is particularly adapted to support and nourish them."

I think the word "soil" throughout the act is used as equivalent to "surface," though if the question rested on the 27th and 28th sections alone, without the 58th or saving clanse, I should have held that the word "soil" included the minerals, and that these sections deprived the lord of his right to them. But I see nothing in these clauses, or in the act, to limit the operation of the 58th section, and I can not, without introducing additional words into that section, limit its operation to the mines under one species of allotment more than another; they are all given alike, and the 27th clause, giving the lord compensation for his right to the soil of all the lands awarded, is consistent with this view, and with the distinction between the words "laud" and "soil" as used in the act.

The chief clerk's certificate must, therefore, be confirmed. On further consideration the bill was dismissed with costs.

MANNING ET AL. V. FRAZIER.

(96 Illinois, 279. Supreme Court, 1880.)

'Real estate, what constitutes. Coal and other mineral in a mine and under the soil are real estate, and as such are capable of being conveyed like any other real estate, and when once conveyed by deed, may pass by inheritance or deed of conveyance.

Vendor's lien for price of mineral in ground sold. Where the owner of land, by deed, bargains, sells and conveys to another, his heirs and assigns, all the coal, limestone, iron ore, rock oil and other mineral in, upon or under the land, with an express license to the grantee, his heirs and assigns and laborers, to enter and search for said minerals and to dig, mine, explore and occupy with the necessary structures, etc., and to mine and remove the coal, etc., for which grant the purchaser agrees to pay to the grantor a stipulated price per ton for the various minerals removed. payable quarterly, the grantor will have a vendor's lien on the coal and mineral not mined and removed, for the purchase money, which he may enforce by a sale of the coal and mineral not taken from the ground. In such case the amount of the purchase money falling due each quarter depends upon the quantity of coal, etc., mined and removed from the land during the three months next preceding. The price agreed to be paid per ton is only a mode of ascertaining the amount of purchase money to be paid for the conveyance of the coal, etc., in the mine.

Same-Waiver of lien-Its extent. If a deed conveying coal and other mineral in the ground on a credit, to be paid for quarterly as the same are mined and removed, authorizes the sale of the coal, etc., before payment is to be made, that will only be a waiver of the vendor's lien pro tanto for what is thus removed, but not for the coal, etc., still in the mine.

License-Not transferable. A mere license in writing to mine, remove and sell coal, etc, the product of such mining to be paid for at a given price per ton, is not transferable either by assignment or deed so as to pass any legal right or title.

Covenant in deed-Of its character. A covenant in a conveyance of mineral in the ground, by the grantee to the grantor, to pay the latter a certain sum per ton for the mineral removed, is not a collateral cove nant, but is a covenant to pay the purchase money for the sale of all the mineral in the manner specifie 1.

'The syllabi in this case are copied literally from the official report and the arguments of counsel the same. It will be noticed that three out of the six or seven judges dissented, and the case would have been discarded on that account, but for the importance of the subject and the novelty of the view taken of the subject.

Writ of error to the Appellate Court for the Third District, the Hon. C. L. HIGBEE, Presiding Justice, and the Hon. OLIVER L. DAVIS and Hon. LYMAN LACEY, Justices; heard in that court on error to the Circuit Court of Vermilion County, the Hon. OLIVER L. DAVIS, Judge, presiding.

Mr. JAMES E. MONROE, for the plaintiffs in error.

A vendor's lien being secret is not favored: Richards v. Leaming, 27 Ill. 432; Conover v. Warren, 1 Gilm. 502; Boynton v. Champlin, 42 Ill. 64; Doolittle v. Jenkins, 55 Id. 402.

The right of resale before the time of payment is a waiver of the vendor's lien, even if it would otherwise have existed: Ex parte Parks, 1 Glyn. & Jam. R. 228; Brown v. Gilman, 4 Wheat. 290.

If a sale is made on the personal responsibility of the vendee, no such lien will exist: 1 Lead. Cases in Eq., part 1, p. 487; Albert Co. v. Western Soc., Law Rep. 11 Eq. Cases, 178; Earl of Jersey v. Briton Dock Co., Law Rep. 7 Eq. Cases, 412.

A vendor's lien exists only on the sale of land for the purchase money agreed to be paid as such. If the land is, by the terms of the contract, to be converted into personal estate and removed and paid for as such, after being so converted and removed, the sale is, in all essential respects, a sale of chattels, aud no lien can be implied.

A contract for the sale of standing wood, to be cut and carried away by the vendee, is to be construed as passing only an interest in the trees when they are severed from the freehold. They then pass as personal property: Douglas v. Shumway, 13 Gray, 502; Claflin v. Carpenter, 4 Metc. 580; Smith v. Surman, 9 Barn. & Cress. 561; Marshall v. Green, 1 Law Rep. C. P. Div. 35.

It is not material whether the severance is to be made by the vendor or vendee: Whitmarsh v. Walker, 1 Metc. 315.

There is no lien in favor of the vendor of chattels after possession has been delivered to the vendee, or when, as here, the sale is made on credit: Benjamin on Sales, Sec. 797; Parks v. Hall, 2 Pick. 206; Cade v. Brownlee, 15 Ind. 369.

When the consideration for the conveyance of land is the covenant of the grantee, and such covenant is substituted for the purchase money, or taken as a mode of payment of the price of the land, the vendor's lien will not be implied-it will be waived.

If the covenants of the vendee are substituted for the purchase money and taken as a mode of payment for the land, the money due for a breach of these covenants is not purchase money, but simply damages, and there is no vendor's lien: McKillip v. McKillip, 8 Barb. 552; McCondlesh v. Keen, 13 Gratt. 615; Patterson v. Edwards, 29 Miss. 271.

I refer to the following cases as announcing the same rule: Brawley v. Catron, 8 Leigh, 522; Parrott v. Sweetland, 3 Myl. & Keen, 655; Winter v. Lord Anson, 1 Sim. & Stu. 435; Clark v Royle, 3 Sims. Ch. 500.

The vendor's lien will not arise if the amount of the consideration is uncertain and unliquidated: 1 Perry on Trusts, Sec. 235.

The bill does not aver a case of complicated accounts, nor a case involving any fiduciary relation, nor does it seek any discovery. The items are all on one side. The jurisdiction on the ground of account utterly fails: Porter v. Spencer, 2 Johns. Ch. 169; Pearl v. Nashville, 10 Yerger, 179; Dinwiddie v. Bailey, 6 Vesey, 136.

But if there was a case for an accounting, the court erred in not referring the case to a master to take an account: Moss v. McCall, 75 Ill. 190; Quayle v. Guild, 83 Id. 553.

Mr. D. D. EVANS and Mr. C. M. SWALLOW, for the defendant in error.

The main question now before the court is whether, under the facts and circumstances as they appear in the bill, a vendor's lien exists in favor of the defendant in error, and can be enforced.

That by the agreement copied in the record there is an absolute sale and conveyance by Frazier of real estate to Squire and Payne, is fully settled by the following decisions and the authorities therein referred to: Caldwell v. Fulton, 31 Pa. St. 475; Massot v. Moses, 3 S. C. 168, reported in 16 American Reports, 697.