and the schedules to the answer treat the winning as one winning and the produce as the produce of one colliery, just as all the veins in the adjoining liberty are one colliery, and just as the three veins are one entire taking as between Lord Vane and the defendants. Nor is there in this any hardship or injustice to the defendants, for where the winuing expenses end the working expenses begin, and the working expenses, not included in the winning, would of course have to be charged against the produce of the coal in ascertaining the profits.

The exact time at which the royalty is to begin is when the produce of the sales has recouped all the expenditure. At that time the new relation between the parties is to commence. Up to that time all the expenses and all the sums realized belong to the common fund. From that time all the expenses and all the sums realized belong to the assigns of Mr. Tempest, subject to the payment of such royalty as arbitrators should fix, having regard to all the circumstances of the case and the mining prospects of the coal field. It may be that in the first year or years the total expenses of winning and working might be comparatively small and the sums realized very great, so as soon to balance the account and bring the royalty into existence, and that immediately afterward, from the change in the coal field, from the exigencies of the work, from the vicissitudes of the market, the expenses might become very great and the results very small, so that a royalty would be payable while the work was being prosecuted, not only without profit, but at a loss. On the other hand, it might take years before the winning expenses are recouped, and then things might so change that with a very sinall royalty large profits would be realized. But these are the chances of every such work, and Mr. Tempest took upon himself those chances for better or worse.

In the view we take of the case the declarations in the first part of the decree become of little, if any, importance. Practically, as accounts of the winning expenses and accounts of the working expenses have to be taken, it will be found, we think, to resolve itself in great measure into a mere account of payments and receipts, so as to ascertain whether and when the receipts exceeded the payments. If that date should be

found to be anterior to some heavy expenditure by the defendants, so much the worse for them; if, on the other hand, it should be found that there was a pound undischarged when such new expenditure was incurred, so much the worse for the plaintiff, as the account must be open until a balance of payments and receipts is arrived at. It will not be absolutely a simple account of payments and receipts, for a proper allowance and deduction would have to be made in respect of any machinery, plant, and other effects which, at the dividing date, would be available for the continued working, and which, of course, would be the property of the defendants, and a portion-probably a large portion of the working expenses would have to be ascertained by some apportionment between the two coal fields which were worked together.

The defendants complain of two other parts of the decree, one, that which allows interest at four per cent. only, and the other which charges them with the actual sale prices of the coal. As to the first, which is of small importance, it is to be borne in mind that in merchantable matters, in matters of industrial speculation, the ordinary rate of interest as understood by men of business, the one which would be given by a jury, is five per cent., and we think that ought to be given in such a case as the present.

The other complaint arises thus: It is alleged that the coal got from the property in question was inferior to the coal got from the defendants' other coal field, but that it was all mixed and sold together at one price. And is contended that the price of the mixture ought to be analyzed and divided between the two qualities of coal, according to such qualities. But the learned judge was of the opinion that the coals having been so mixed by the defendants' own act, it is not open to them to compel the plaintiff to go into an inquiry as to how much the price of the mixed mass was diminished by the admixture. If it was not diminished, there is nothing to apportion; and we agree with him in this respect. Moreover, the defendants thenselves, in the schedule to their answer, have professed to give the sale prices of the coal and to charge themselves with such prices. Such sale prices must, of course, mean the actual prices paid by the purchasers, and not any hypothetical price, deduced by a calculation based on such actual prices and the

proportions of the coal mixed. They have, therefore, determined this question for themselves. The result is that the judgment will be affirmed, with the variation as to interest, which does not affect the costs, and the appellants must pay the costs of the appeal.

Solicitors: FRERE & Co.; WILLIAMSON, HILL & Co.

GRIFFIN V. FELLOWS ET AL.

(*81 Pennsylvania State, 114. Supreme Court, 1873.)

The "Connecticut title" to lands in the "17 townships" of Luzerne county considered.

Void lease validated by receipt of rent. The reception of rent for a great length of time may confirin a lease which may have been void in its inception.

No forfeiture by tenant's agreement to convey. A lessee entered into articles of agreement to sell and convey the leased premises, in fee: Held, that even a conveyance would not operate to produce a forfeiture of the lease unless it were a conveyance of such a character as would dis place or divest the estate of the reversioner by effecting a disseizin; and if a conveyance by bargain and sale would not so operate, much less would a mere agreement to convey. Warranty and habendum in construing lease. A lease of lands containing the words "mines and minerals " in the habendum clause, and the covenants of warranty extending to "the aforesaid premises with every right and privilege and appurtenance to the same belonging:" Held, to allow the working of mines, although no mines were open at the time of the making of the lease.

Lessee can not open mines. The opening of mines by the lessee where none were open at the time of the letting, with no provision in the lease allowing such privilege, would work a forfeiture and allow the lessor to recover in ejectment.

Office of the habendum. The habendum determines what estate is granted, and may lessen, enlarge, explain or qualify the estate in the premises, and, unless totally repugnant to it, is to be construed as if contained in the first part of the deed.

Implied grants. When anything is granted all the means to obtain it and all the fruits and effects of it are also granted. By the lease the lessee took the "mines and minerals" and every "privilege" thereof; this gave him the right to the minerals and the right to dig for them. The term "minerals " embraces everything not of the mere surface

1 Doe v. Morse, 1 Barn. & Ad. 365.

2 Fogus v. Ward, 5 M. R. 1.

Rosse v. Wainman, 14 M. & W. 859; Post MINERALS.

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used for agricultural purposes; the granite of the mountain as well as metalic ores and fossils are comprehended within it.

1Usage aids construction. An ancient grant is to be construed by evidence

of the manner in which the thing granted has always been possessed and used. Even if the right to mine were doubtful it seems it might be implied from long continued acquiescence.

March 12, 1873. Before READ, C. J., AGNEW, SHARSWOOD, and MERCUR, JJ., WILLIAMS, J., at Nisi Prius.

Error to the Court of Common Pleas of Luzerne County of January Term, 1873. This was an action of ejectment commenced May 24, 1866, by Joseph Griffin against Joseph Fellows and others, for a tract of land in the borough of Hyde Park, Luzerne county, containing fifty acres, more or less.

The land was in what was the township of Providence, one of the seventeen townships in Luzerne county.

On the 8th of September, 1796, James Bagley and others, legally appointed a committee, and duly authorized by the proprietors of the said town of Providence "to let and lease out the public lands of the said proprietors, and lying in the township of Providence aforesaid, for such a term as they, the said committee, should think proper," leased to “Joseph Fellows, his executors, adininistrators and assigns," a tract," part of said public lands situate in said town of Providence," describing it; also, another tract, "situated in said town of Providence, and also a part of said public lands," describing it; also another, "situated in Providence aforesaid, and also a part of the said public lands," describing it, "the whole containing one hundred and five acres, be the

* * *

same more or less."

"To have and to hold the above granted and demised premises with every privilege, right, member and appurtenance whatsoever to the same premises belonging or in anywise appertaining, whether ways, waters, watercourses, mines, or minerals of whatever description, to the said Joseph Fellows, his executors, administrators or assigns, for and during and until the full end and term of nine hundred and ninety-nine years, fully to be completed and ended. Yielding and pay ing therefor yearly, and every year during the said term, to 1 Pratt v. California Co., 1 West C. R. 87.

*

*

the said proprietor's committee or such other person appointed by them to receive the same, the sum of four pounds, four shillings * And also clearing and fencing within four years of the date hereof eight acres of the said premises, and reserving on the said premises for timber and firewood, ten acres, and not in any manner destroying the timber of the same premises, except for clearing, fencing and building in and upon the same till there are improvements sufficient to let out for seven pounds, ten shillings a year * * * And it is hereby covenanted that if the said reserved rent shall be behind and unpaid for the space of sixty days * * * it shall and may be lawful for the said proprietor's committee or such other person as may be appointed by them to seize upon the goods and chattels that shall or may be found in or upon the same premises, and dispose at public vendue, sufficient to pay the said rent and costs attending the same. But if no such effects can be found upon the same premises, that it shall be lawful for the said committee or person appointed as aforesaid, to re-enter the same premises, and after public advertisement for that purpose, lease out the lands to the best bidder, for such a term as will or might pay the said arrearage of rent and expenses attending the said execution. And at the end of the said term which the said premises were leased for under the said execution, it shall and it is hereby declared. lawful for the said Joseph Fellows, his executors, administrators, or assigns, to take immediate possession of and re-occupy the whole and every part of the same lands, for the remaining part of the term that shall be then unexpired * ** And the said James Bagley, etc., for themselves, and on behalf of the said proprietors, do hereby covenant and agree to and with the said Joseph Fellows, his executors, administrators and assigns, that he or they shall and lawfully may have, hold, occupy, possess and enjoy for the term aforesaid, all and singular, the aforesaid premises, with every right and privilege and appurtenance to the same belonging, and the same and every part thereof will warrant and defend against the claims. and demands of all persons whomsoever claiming the same under the Connecticut title."

The lessee went into possession under the lease and continued in possession, paying the taxes, until August 11, 1815,