the price of labor may be in future years; or what machinery may be introduced in future which may dispense, to a certain extent, with labor; or what the market value of minerals of the same kind will be at a future period, or what the effect upon the market value of those minerals may be of the discovery of other minerals of the same kind in the same neighborhood? All those things are perfectly uncertain.

Then, my lords, finding that there is no decided case which is an authority for the contention of the appellant, and that there are no dicta of institutional writers which can properly be applied to a case of this kind, I have no hesitation in saying that the appellant has utterly failed to establish that there is in the case of a lease of this kind any implied warranty in law approaching to that express warranty which, in the first instance, he asserted had been given by his landlord. It is upon this ground that I should wish to rest the decision of the case. And I do so the more particularly for this reason, that I observe that some of the learned judges in the court below were rather inclined to rest it upo: another ground; namely, to assume that there may be the common law right for which the appellant contends; but that, on the other hand, that common law right is ousted by the express provisions contained in this lease with regard to breaks. If I found that there was a common law right such as has been alleged, I should have great hesitation in saying that anything in this lease did oust that right. If there is such a common law right, I do not see that it is in the least degree impossible that it should co-exist with a lease containing a provision for breaks. I do not, therefore, hold that the common law right is excluded by the provisions of this lease, but rather that these provisions are to be regarded as a proof that it never was imagined by those who entered into it that there was any such common law right; because, if there was such a common law right, these provisions, to a great extent at all events, would have been unnecessary.

Interlocutors appealed from affirmed, and appeal dismissed with costs.

Appellant's Agent: JAMES DODDS.

Respondents' Agents: GRAHAMES & WARDLAW.

INDEX.

ABANDONMENT.

1. A lessee may abandon, and after the abandonment he can not re-
cover the premises. Barker v. Dale,
597

ACCOUNT.
1.

Errors excepted" it is common to add to a statement of accounts,
but the exception must be understood, even where not expressed. Perry
v. Attwood,

See LFASE, 28; MISTAKE, 1; RENTS AND ROYALTIES, 5, 6.
ADVERSE POSSESSION.

441

1. No presumption of grant from adverse use of water.-In order to
raise a presumption of a grant from the adverse use of water, such use
must have been peaceable and with the acquiescence of the owner of the
servient tenement; if such owner remonstrated against the use of the
water by the dominant tenement for the purposes of irrigation, this is
sufficient to show that the use was not acquiesced in. Union M. Co.
v. Dangberg,

See IRRIGATION, 7; STATUTE OF LIMITATIONS; Water, 4.

AGENT-See FRAUD, 3.

APPEAL See INJUNCTION, 2.

APPROPRIATION.

113

1. Prior appropriation.-He who first locates land and appropriates
water to irrigate the same, is entitled to enough to irrigate his land; he
who is first in time is first in right. Thorp v. Woolman,

See IRRIGATION, 9.

ASSIGNMENT.

87

1. Assignment by corporation.-An insolvent corporation may make
an assignment for the benefit of creditors; the power may be exercised by
its directors. Ardesco Oil Co. v. North American Co.,

See LEASE, 19, 21, 22, 31.

ASSUMPSIT.

590

1. An action for money had and received may be maintained whenever
defendant has obtained the money of the plaintiff which in equity and
good conscience he ought not to retain; nor need he have received such
money as the plaintiff's agent. Alderson v. Ennor,
526

See TRESPASS, 1.

BARRIERS-See LEASE, 70.

BOND-See CORPORATIONS, 5; PRINCIPAL AND SURETY, 1.

BOUNDARIES-See INSPECTION, 5.

COAL-See CONFUSION, 1; PERSONAL PROPERTY, 1; WORKINGS, 1,

COLLIERY See INSPECTION, 3, 5, 7, 12; LEASE, 24, 25, 49-55; Surface
SUPPORT, 1.

CONFUSION.

1. Mixture of coals.-The licensee mixed coals 'gotten under the li-
cense with those gotten from his own colliery, and sold them together.
He alleged that the coals gotten under the license were inferior to his
own coals. Held, that as they had been mixed by the licensee's own act
he was not entitled to an inquiry as to how much the selling price was af-
fected by the mixture. Rokeby v. Elliot,
651
2. Interest.-Held, that interest at five and not at four per cent. ought
to be allowed on the expenses of winning. Id.
CONSIDERATION.

1. Release of uncollectible claim, no consideration.-The release of a
claim for damages upon alleged breach of an unlawful covenant, reserved
against a coal lessee, is not a valid consideration for a new contract.
Crawford v. Wick,

See FRAUD, 5.

CONTRACT.

542

1. The construction of written contracts is not to be submitted to the
jury. Emery v. Owings,
378
2. Store contract in restraint of trade.-The lessee of a coal mine
agreed with the lessor, by a supplemental contract, that he would use all
his influence in a reasonable and proper manner to have all his employes
and their families do their entire trading at the store of the lessor, and
that the lessee would not accept, receive or pay any order drawn upon
him in favor of any other store by such employes, nor give any such order,
note or evidence of indebtedness to be transferred to any other store for
goods, etc. Held, to be a contract in restraint of trade, which tended to
unwarrantable monopoly and extortion. Crawford v. Wick,
541

3. Clear contract does not admit of construction.-In construing con-
tracts where the language is ambiguous, courts endeavor to ascertain the
intention, and to give effect to that intention; but where the language is
unambiguous, although the parties may have failed to express their real
intention, there is no room for construction, and the legal effect of the
agreement must be enforced. Walker v. Tucker,

672

4. Distinction between inability of contractor to perform and inherent
impossibility of performance.-Where the contract is to do a thing pos-
sible in itself, the promisor will be liable for a breach, notwithstanding
performance was beyond his power; but when from the nature of the
covenant it is apparent that parties contracted on the basis of the con-
tinued existence of a person or thing, a condition is implied that the per-
ishing of the person or thing shall excuse the performance. Id.

5. Application of the distinction to exhausted coal mine.-The lessee
of coal mines, covenanting to work the same in a good and minerlike

CONTRACT. Continued.

manner, is excused from further performance when the coal mines be-
come exhausted. Id.

See EVIDENCE, 1.

CONVEYANCE.

1. Corenant 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 specified. Manning v. Frazier,
307

2. Men's grants must be taken according to common intendment, not
straining the language to the destruction of the inheritance. Astry v.
Ballard,
316

3. Mining conveyances deal with the cube.-Conveyancing usually
deals with surface lines, but the land, which is a man's possession, “is a
solid body of rock, soil and water, bounded by planes instead of lines."
A horizontal plane can be made a dividing line, and unopened beds may
be granted the same as the surface, without thought of livery of seizin.
Massot v. Moses,
607

4. 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. Griffin v. Fellows,
657

5. 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 con-
tained in the first part of the deed. Id.

6. 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. Id.
See LEASE, 34.

CORPORATIONS.

1. Directors not liable for mistake in exercise of discretion.-The
directors of a corporation for the sale of land rejected offers for the pur-
chase of its land; although this was imprudently done, yet being a matter
resting in their discretion, if without fraud, they were not responsible.
When directors act honestly for what they esteem the best interests of the
corporation, and do not willfully pervert their powers, but only misjudge
them, they will not be held to account for money expended in such case.
Watts' Appeal,
222

2. Essential powers of corporation. The power to execute and issue
bonds, contracts and other certificates of indebtedness, belongs to all cor-
porations, public and private, and is inseparable from their existence. Id.

3. Implied powers.-The power to contract necessarily involves the
power to create a debt. The charter of a land company gave the directors
power to dispose of its land by deed or lease; the power to mortgage land
on a proper occasion and for a proper debt is implied. Id.

4. Incidental powers.-The corporation, owning a very large body of
lands, had power by their charter to aid in the development of minerals
and other materials, and to promote the clearing and settlement of the
country." Held, that the building of saw mills and an hotel for the ac-
commodation of those having business in connection with carrying out
the prime object of the corporation, was within its powers. Id.

5. Corporate bonds are cash to the corporation.-The stockholders di-
rected public sales of their lands, and that payment might be made in
cash and in their bonds. Held, the payment in bonds was equivalent to
cash. Id.

6. Purchase by directors at public sale.-Directors bought at the sales
at fair prices, and the sales were conducted openly and fairly. Held, the
sales to them were valid. Id.

7. Extent of corporate powers.-A corporation, unless expressly re-
strained by law, has an unlimited power over its property and may dispose
of it as fully as a natural person. Ardesco Oil Co. v. North American
Oil Co.,
590

See FRAUD 2; LACHES 12, 17; PLEADING AND PRACTICE 3.

COSTS.

1. Apportionment of costs in equity. Union M. Co. v. Dangberg,

113
2. Costs divided, neither party being without blame. Coffman v. Rob-
bins,
131

COVENANT.

1. Local peculiarities of the action of covenant.-The action of cove-
nant, though sometimes in Pennsylvania made to answer the purpose of a
bill in equity, is, so far as regards the instrument sued on, strictly an ac-
tion at law, and if a plaintiff in pleading brings down his covenant to
parol to suit his evidence, he defeats his action. Lehigh Coal Co. v. Har-
lan,
424

2. Parol concessions not admissible in “covenant."-Evidence of the
work done in the faults of the veins was not admissible under the lease
where the written consent of the company to its performance had not been
obtained. Id.

3. Where covenants are apparently variant, it is necessary to consider
the whole instrument, to obtain the intent of the parties. Rolleston v.
New,
464

4. Suit on covenant, for use.—A covenant under seal can be sued only
in the name of the covenantee, but where sued on for the use of others,
the court will control the execution so as to see the proceeds properly ap-
plied. Ardesco Oil Co. v. North American Co.,
589
See CONTRACT, 4; FORFEITURE, 2; LEASE; RENTS AND ROYALTIES,
1-4, 7-9.

CRIMES.

1. Strict construction of penal statutes.-Penal laws generally pre-
scribe what shall or shall not be done, and then deciare the consequences
of a violation of either requirement. They should be plainly written, so