not recovered. I am of opinion, that in the present case, Mills was not shewn to be responsible, and that he was entitled to a verdict.

Rule absolute to enter a verdict for Mills.

ROBERTS v. DAVEY. April 23.

Trespass for breaking and entering the lands of the plaintiff, and sinking pits. Plea. that before the plaintiff had anything in the said lands, one U. was seised in fee of one undivided third part therein, and, by indenture, granted to B. license to dig, mine, &c. throughout his one third part, with liberty to erect engines, &c., for the term of twentyone years; that before the expiration of the term the grantee died, and his executrix became legally entitled to the enjoyment of the license, and because she could not enjoy it so fully as it was lawful for her to do without committing the supposed trespasses, the defendant, as her servant, entered upon the said lands, and upon the plaintiff's possession, and committed the same.

Replication, that the supposed license was granted subject to a condition, "that if the grantee, his executors, &c. should neglect to work the mines for a certain time, or should fail in the performance of all or any of the covenants, then and from thenceforth the indenture and the liberties and licenses thereby granted, should cease, determine, and be utterly void and of no effect." Averment, that the grantee, for a space of time exceeding that specified, neglected to work the premises, contrary to the condition, and the license thereby became utterly void:

Held, on general demurrer to the replication, that the word void in the proviso meant voidable at the election of the grantor, and, therefore, that it was necessary for the plaintiff to allege that the grantor or some person claiming under him (which it was not shewn that the plaintiff did) had by some act evinced his intention to avoid the license.

TRESPASS for breaking and entering the lands of the plaintiff, called Carvannell, in the parish of Gwennapp, in the county of Cornwall, and sinking shafts, and carrying away ore. Plea, that on the 7th of June 1821, long before the said time, when, &c., and before the plaintiff had any thing in the said lands, one Stephen Ustwicke was seised in fee of one undivided third part in the said lands; and by indenture between him of the one part, and John Bullocke of the other part, he, Ustwicke, *granted to Bullocke, his executors, administrators, and assigns, full and free liberty, license, and authority to dig, [*665 mine, and search for tin, tin ore, and all other ores, metals, and minerals within. throughout, and under all that, his one third part undivided, of and in the said lands, with free liberty, license, power, and authority to erect such engines and buildings, &c. as might be useful and convenient in the use and exercise of such several liberties, licenses, &c.; and also to divert and use waters and watercourses, for the purpose of working such engines, and to make new leats for carrying off water for the like purpose; to have and to hold the liberties, licenses, &c. thereby granted to the said J. B. &c. for the term of twenty-one years. Averment, that before the expiration of the said term, &c., to wit, on and before the times when, &c., J. B. made his will, and appointed one Betsey Lovell Bullocke, his wife, executrix, and died; that she duly took upon the execution of the said will, and became and was legally entitled to the use, exercise, and enjoyment of the liberty, license, and authority so granted by the said indenture to Bullocke, his executors, &c. for the residue of the term. The plea then stated, that because, without committing the said trespasses, the said Betsey Lovell Bullocke could not, at the times when, &c. have or enjoy the said liberty, license, and authority so fully and effectually as it was lawful for her to do, the defendant, as her servant and by her command, entered into and upon the lands in which, &c. in and upon the plaintiff's possession thereof, and committed the supposed trespasses.

herself

Replication, that the supposed liberty, license, and authority were granted subject to a condition, that if J. B., his executors, &c. should, at any time or

times, neglect effectually to work the said premises, by the *said sup*666] posed indenture granted, for any time or times exceeding in the whole six calendar months in any one year of the said term, or should not work effectually such mine or mines, and the veins and lodes discovered, or to be discovered, within the said premises, unless hindered by unavoidable accident, or should fail in the performance of all or either of the covenants, &c. in the said supposed indenture contained, then and from thenceforth, that supposed indenture, and the liberties, licenses, powers, and authorities thereby granted, and every of them, should cease, determine, and be utterly void and of no effect to all intents and purposes. The replication then averred, that J. B. in his lifetime, and the executrix afterwards, for a space of time exceeding in the whole six calendar months, &c., neglected effectually to work the said premises by the said supposed indenture granted, he the said J. B. not having been during the said time hindered by unavoidable accident, contrary to the condition of the said indenture, and true intent and meaning thereof, whereby the said supposed indenture, and the said supposed liberty, license, and authority, long before the committing of the trespasses mentioned in the plea, to wit, on the 8th December 1822, ceased, determined, and became and were utterly void and of no effect.

General demurrer and joinder.

Follett in support of demurrer. The instrument set out on the record is a license granted by Ustwicke before the plaintiff had any interest in the land in question; and the latter, in his replication, without connecting himself with

Ustwicke, or shewing any authority from *him, or any person claim*667] ing under him, states merely that Bullocke had not performed certain covenants in the lease, and that the lease thereby became void. It follows, therefore, that if the license be not absolutely void, but voidable only at the option of the grantor, the replication is bad. Now Doe dem. Bryan v. Banks, 4 B. & A. 401, shews that a lease with a proviso similar to that in this license is voidable only at the option of the lessor. There the lease was of coal mines for ninety-nine years, reserving a royalty rent for every ton of coals raised, and a proviso that the lease should be void to all intents and purposes if the tenant should cease working at any time for two years; and it was held that the true construction of the proviso was, that the lease was only voidable at the option of the lessor. In Arnsby v. Woodward, 6 B. & C. 519, the proviso was, "that if the rent should be in arrear for twenty-one days after demand made, or if any of the covenants should be broken, the term thereby granted, or so much thereof as should be unexpired, should cease, determine, and be wholly void; and it should be lawful for the landlord to enter and the same to hold to his own use, and expel the lessee." It was held that this, in the event of a breach of covenant, made the lease voidable and not void; and that the landlord was bound to enter in order to take advantage of the forfeiture, and that, not having done so, he waived the forfeiture by a subsequent receipt of rent. In Rede v. Farr, 6 M. & S. 121, there cited, it was held that such a proviso did not make the lease voidable by the lessee, on the principle that a party shall never take advantage *668] of his own *wrong. If it might be determined at the option of the person in possession, the landlord might thus be deprived of the benefit of all the covenants: and if a stranger, like the plaintiff, could treat it as void, the landlord might be deprived of a beneficial rent when he and the tenant were agreed that the lease should continue. The result of the authorities is, that the difference supposed formerly to exist between leases for lives and for years, as to the necessity of an entry to avoid the lease, no longer exists. That being so, it follows that in order to avoid this license the grantor or some one in privity with him should either have entered, or done some act shewing his intention to determine the license.

Jeremy, contrà. The instrument set out upon the record, passed to the grantee no interest in the soil, but a mere easement in it. It is not a lease; but contains a mere license to dig and search for minerals, subject to a condition; Doe

Even as

dem. Hanley v. Wood, 2 B. & A. 724. The consideration of the grant was the render of the ores. The performance of that condition goes to the whole consideration of the grant, and, as in any case of mutual and dependent covenants, must have been averred in pleading by the grantee, for the purpose of enforcing such grant: 1 Wms. Saunders, 320, d. n. 4. Here, if there be no performance, the whole profit of the subject-matter of the grant will be lost to the lord for the whole term. Then, this being a license for a term of years, to dig for minerals, subject to a condition that it should be void on the grantee's neglecting to work the mines for the time therein mentioned, it became, on such neglect, ab- [*669 solutely void; and not merely voidable at the option of the grantor. to leases, there is a distinction in this respect between leases for lives and for years. In the former, if the tenant be guilty of any breach of the condition of re-entry, the lease is only voidable, and not determined until the lessor re-enters, or brings an ejectment for the forfeiture; but, in a case of a lease for years, it is absolutely determined by the breach. 1 Wms. Saund. 287, c., note 16. In the cases cited on the other side, the leases were undoubtedly for years; but they passed an interest in the land, and not as this grant does, a mere easement in it. In Arnsby v. Woodward, 6 B. & C. 519, there was a clause of re-entry superadded to the provision for avoidance, and the Court held that both were to be construed together, as amounting only to a power of determining the lease by re-entry, and that a subsequent acceptance of the rent was a recognition of a lease still subsisting. In Doe dem. Bryan v. Bancks, 4 B. & A. 401, a tenant attempted to insist on a forfeiture created by his own act, and thereby to convert the term into a yearly tenancy; but the Court held, that the lease did not become void, unless the landlord thought fit to make it so; and there was a subsequent receipt of rent. In Rede v. Farr, 6 M. & S. 121, a proviso for avoidance on nonpayment of rent was held not to enable the lessee to vacate the lease; and that upon the principle that a party cannot take advantage of his own default. Here the plaintiff, who, in the pleadings, is admitted to be in lawful possession, stands in the situation of the original grantor. [DENMAN, C. J. That does *not appear. It is consistent with the facts stated in the pleadings, that the plaintiff may be the owner [*670 of the other two-thirds. PARKE, J. Possession is not sufficient, provided it be necessary that some one in privity with the grantor should have done an act to determine the license.] No entry or claim by the grantor, or any person claiming under him, was necessary to determine this license. A license lies only in grant, and not in livery; and, therefore, re-entry is not necessary to determine it. There is a distinction between a condition annexed to a freehold lease and one annexed to a lease for years. A lease for life cannot commence by words without other circumstances, viz. livery and seisin, and therefore shall not be determined without entry; but a lease for years may begin by words without entry, and may be determined by words without entry, Browning . Beston, Plowden, 135, 136; 1 Wms. Saund. 287, c. note 16; and Co. Litt. 214, b. is to the same effect. And when the land itself remains in the possession of the grantor, no entry or claim by him is necessary to determine the grant. In Co. Litt. 218, a, it is said, "if I grant a rent-charge in fee out of my land upon condition, there, if the condition be broken, the rent is extinct in my land, because I (that am in the possession of the land) need make no claim upon the land, and, therefore, the law shall adjudge the rent void without any claim." In Digges's case, 1 Rep. 174, 5th edit., it is said to have been agreed in 20 E. 4, 18 and 19 a, that "if a feoffment be made upon collateral condition, and before the condition performed the feoffee leases it to the feoffor, if afterwards the feoffee doth not perform the condition, the land shall be in the feoffor [*671 immediately without entry or claim, because he himself is in possession of the land. So if a villein purchases rent which is issuing out of the lord's land, it shall be in the lord without entry or claim of the lord; for if he should make an entry or claim, it ought to be upon the land, and that it is not necessary when he himself is seised thereof." The necessity of an entry depends on

671]

"If the words be, that upon the doing of an act the wording of the condition. the reversioner may enter, there must be an entry to avoid the estate; but if the estate be granted upon condition that if the grantee do such an act the estate shall thereupon immediately cease and determine, then no entry is necessary;" per Bayley, J. in Fenn dem. Matthews v. Smart, 12 East, 448.

DENMAN, C. J. There is nothing to connect the plaintiff with Ustwicke, and it is possible he may have come in by title inconsistent with that of Ustwicke, who had only a third part in the lands. Assuming, however, that it had appeared that he represented the grantor of the license, I think it quite clear, according to Doe v. Bancks, 4 B. & A. 401, and on the wording of this grant, that it was necessary for him to have done some act shewing his intention to determine the license; until such act were shewn, it continued in force.

LITTLEDALE, J. The replication cannot be supported; it seems to me that, according to Doe v. Bancks, 4 B. & A. 401, this instrument was liable to be rendered void only at the election of the grantor. If it had been a freehold lease of land subject to a condition *that it should be void on non-per*672] formance of covenants, it would have been necessary for the lessor to avoid it by entry; or, if that were impossible, by claim. This instrument is a An actual entry, therefore, was mere license to dig, and did not pass the land. unnecessary to avoid it; but by analogy to what is required to be done in order to determine a freehold lease, which, by the terms of it, is to be void on the nonperformance of covenants, it seems to follow that, to put an end to this license, the grantor should have given notice of his intention so to do. The giving of such notice in the case of an instrument like this is equivalent to an entry or claim by the grantor of a freehold estate to which a condition is annexed. Till such notice were given, the right of possession in those claiming under the license was so far continued that the plaintiff, who, for any thing that appears, was a stranger to Ustwicke, could not take advantage of the breach of condition. If the plaintiff had set out his title, and shewn that he claimed under Ustwicke, the case might then be different.

PARKE, J. The question is, upon the construction of this instrument, whether the grant is void, or voidable only on the default in question. If it be void, the plaintiff is entitled to judgment; if it be voidable only, then, as it does. not appear that the grantor did any act amounting to an exercise of his option, the defendant is entitled. It is not necessary to decide whether the word void means voidable by entry, or voidable by any other act, shewing the election of the grantor, because in either case, Doe v. Bancks, 4 B. & A. 401, shews that a *673] *lease containing such a proviso is not void at all events, and that a breach of it cannot be taken advantage of by a stranger, which the plaintiff here must be taken to be, for we cannot infer any privity between him and Ustwicke. He must be taken on these pleadings to be in lawful possession, but he may have been so as the owner of the other two third parts; in order to avoid the license, it ought to have been shewn that Ustwicke, or somebody claiming under him, had done some act to determine it. That not being, shewn the replication is bad, and there must be judgment for the defendant.

Judgment for the defendant.

MEAGER v. SMITH. April 24.

Defendant paid money into Court in an action for work and labour generally, where full The plaintiff proved the work mentioned in particulars were annexed to the record. the particulars to have been performed on the property of G., by the order of M., and gave evidence to shew that M. was authorized by the defendant, and also proved acts done by the latter, which it was contended were a recognition of his own liability for the work. The Judge left to the jury, whether sufficient money had been paid; whether the defendant had ratified M.'s order, and to what extent? The jury having

found for the defendant, declared, in answer to a question from the Judge, that M. had no authority to bind the defendant. The Court, Parke, J. dubitante, refused to disturb the verdict, it not distinctly appearing that the opinion last expressed by the jury was the ground of their verdict.

Held, per Littledale and Parke, Js., that payment into Court shews only a liability for some work and labour, and is merely evidence which may be coupled with other facts, so as to shew a partial or total liability on the particular claim; and that the effect of such payment is not altered in this respect by the rule of Trin. 1 W. 4, which requires a particular of demand to be annexed to the declaration.

ASSUMPSIT for work and labour; money counts, and account stated. Plea, non-assumpsit. At the trial, before Bolland, B., at the Glamorganshire spring assizes, 1832, it appeared that the defendant resided near Swansea, and was the correspondent of Messrs. Gautier and Dubois, who were merchants residing at Brest. In the year 1831, a vessel belonging to Messrs. Gautier and Dubois arrived at Swansea, to be laden by the defendant. She was laden accordingly, but in quitting the *port, she took the ground and sustained considerable damage. The vessel was repaired by the plaintiff, who now sued the [*674

defendant for such repairs. The plaintiff, in the bill of particulars annexed to the record, enumerated specifically the repairs done to the vessel, and charged the defendant with 1657., and credited him with a payment of 701., the balance being 957. The defendant paid 107. into Court generally. In order to fix the liability upon the defendant, it was proved that a person named Mills had directed the repairs to be done; and evidence was given of the general connection of Mills with the defendant, and of acts on the part of the defendant, which were insisted upon as shewing a recognition of his own liability in respect of the work. The learned Judge left two questions to the jury: first, whether sufficient money had been paid into Court to satisfy the balance remaining due for reasonable repairs; and, if not, secondly, whether the defendant had by his own acts ratified the order given by Mills, and, supposing him to have done so at all, whether the ratification extended to repairs sufficient to carry the balance beyond the amount paid into Court. The jury found a verdict for the defendant. Upon this, at the suggestion of the plaintiff's counsel, the defendant's counsel objecting, the learned Judge asked the jury, whether they considered that Mills had no authority to bind the defendant, or that the money paid into Court was sufficient to cover the balance due? The jury answered, that they were of opinion that Mills had no authority to bind the defendant. In Easter term 1832, John Evans obtained a rule to shew cause why there should not be a new trial, on the ground that the payments made were admissions of Mills's authority to bind the defendant; and that, therefore, the jury had found a verdict on false grounds.

[*675 Maule and E. V. Williams now shewed cause. The question was properly left to the jury. It is, however, true that if the jury had expressly found a fact inconsistent with their general verdict, the verdict could not have been supported. But it is not so if, as here, they merely find a fact which is of itself sufficient to support the verdict. Besides, the payment into court is not conclusive evidence of the liability or authority. In cases where the declaration sets out a special contract, the defendant has express warning as to the nature of the claim, before he pays the money into court. But it could not be maintained that, if the declaration contained only a common count for goods sold and delivered, and money were paid into court, the plaintiff might establish a case by simply shewing that some goods were delivered to a third party. It will be said that, in the present case, only one claim has been shewn to exist, and that the payment must be applied to this one. But suppose work and labour had been performed for the defendant four or five years ago, to the amount of 10, the payment might have been made with respect to that work. The plaintiff cannot use the payment as conclusive proof of the defendant's liability for any work which the plaintiff may have performed at any time or place. It might as well be treated as proof of the execution of any written special agreement