Muskett v Hill and Tozer
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1838 |
| Date | 12 June 1838 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 1267
IN THE COURT OF COMMON PLEAS
S. C. 7 Scott, 85; 9 L. J. C. P. 201. Adopted, Heap v. Hartly, 1889, 42 Ch. D. 468. Referred to, Smelting Company of Australia v. Inland Revenue Commissioners, [1896] 2 Q. B. 185; [1897] 1 Q. B. 175.
[694] muskett v. hill and tozer. June 12, 1839. [S. C. 7 Scott, 855; 9 L. J. C. P. 201. Adopted, Heap v. Hartley, 1889, 42 Ch. D-468. Referred to, Smelting Company of Australia v. Inland Revenue Commissioners, [1896] 2 Q. B. 185; [1897] 1 Q. B. 175.] 1. A licence to search for and raise metals, and also to carry them away and convert them to the licencee's own use, passes an interest which is capable of being assigned. -2. A licence to mine was granted, with a proviso that if the grantee, after notice to work according to his covenant, failed to keep six miners at work, and the grantor fixed notice on the premises that he intended to avoid the licence, it should be lawful for the grantor to re-enter within a month after fixing the notice, and then the licence should be void. Held, that notice to the grantee that unless he kept six miners at work, the grantor would re-enter at the expiration of a month, did not avoid the licence or render the grantor's re-entry lawful.-3. Held, also, that for such re-entry and extrusion the grantee might sue in case. This was an action upon the case for the obstruction of the Plaintiff in the exercise and enjoyment of certain licences and authorities to work certain mines. 1268 MUSKETT V. HILL B EING. (N. C.) 695. The Plaintiff, in his declaration,-after setting out that, by an indenture between the Defendant Hill of the first part, the Defendant Tozer of the second part, and certain persons of the name of Setree and Stacy of the third part, the Defendants, according to their interests, granted to Setree and Stacy, their executors, administrators, and assigns, first, licence and authority to mine and search for, or cause to be raised, sought for, brought to grass, and made merchantable, all tin and tin ore, &c. within Certain lands therein described; secondly, licence and authority to carry away the said metallic minerals, and convert them to their own use; with other licences not material to the present question; to hold for twenty-one years from the 13th of February 1835; and further setting out an assignment by indenture of the rights and interests of Setree and Stacy to the Plaintiff, and that the Plaintiff afterwards commenced the exercise and enjoyment thereof;-stated as a breach, that whilst the Plaintiff was so entitled as aforesaid, and was actually engaged in using and exercising the same, the Defendants wrongfully obstructed and prevented the Plaintiff from using or enjoying the said licences, authorities, and privileges, [695] by dispossessing and expelling the Plaintiff and his workmen, and by forcibly preventing and hindering the Plaintiff and his servants from having any access to, or in any manner working, mining, or seeking for, the said tin or other minerals. The Defendants craved oyer of the first-mentioned indenture, in which was contained, amongst others, the following proviso : " Provided always, that if there shall be any failure or breach by the grantees or their assigns in the performance of any of the covenants,-and as respects the covenant No. 1, a failure after notice so to work, to keep six able miners constantly employed in driving the adits or sinking the deepest level, shall be considered one of the breaches thereof,-and notice in writing shall be fixed within the limits aforesaid, that the grantors intend to avoid the licences hereby granted because of such failure or breach; then after the expiration of one month from the affixing such notice, and as 'often as the same shall happen,-notwithstanding the waiver of any prior forfeiture,-it shall be lawful for the grantors to re-enter, &c. And after such re-entry all the licences, &c. shall be conclusively determined and avoided." The covenant referred to as covenant No. 1 was in substance a covenant, constantly and bonsi fide to mine and search for all lodes, veins, and strata of metallic minerals within the limits, and effectually to work according to the laws of good mining. The Defendants pleaded, first, not guilty : secondly, that the indenture of assignment was not the deed of Setree and Stacy : thirdly, that the rights, shares, and interests of Setree and Stacy did not, nor did any of them, become vested in the Plaintiff; nor did the Plaintiff, at any time after the making of the second indenture, commence the exercise and enjoyment of the same; nor was the Plaintiff, at the time of the committing of the grievances complained of, employed in using or enjoying the same. [696] The fourth plea stated, that during the term granted, and before the making of the indenture secondly mentioned, to wit on the 1st of January 1836, and from thence until the 6th of April, and the affixing of the notice as after mentioned, Setree and Stacy did not nor would constantly and bonH fide mine and search for, &c. all lodes, &c.; and so set out a breach of the covenant No. 1, and stated, that the said covenant during all the time aforesaid continued and remained broken; and that thereupon the Defendants during the continuance of the said term, to wit on the 6th of April 1836, caused notice in writing to be affixed within the limits, to wit on a certain whim (being the principal erection or building within the limits), and thereby gave notice to the said Setree and Stacy, and to all others whom it might concern, so to work, and that unless they did thenceforth keep six able miners constantly employed in driving the adits and sinking the deepest level within the said limits, and also in all other respects work all lodes, veins, and strata of all metallic minerals within the said limits, according to the true intent and meaning of the covenant No. 1, and observe and perform all other the covenants in the said first-mentioned indenture contained on the part of the said Setree and Stacy, the Defendants would, in pursuance of the said proviso, after the expiration of one month from the affixing of the said notice within the limits aforesaid, re-enter into the said limits and premises, and avoid and determine all, every, and singular the licences and authorities by the said firstmentioned indenture to them granted and demised, and eject and expel from the same limits all persons claiming under the authority of the said indenture. It was then averred, that Setree and Stacy did not, nor did the Plaintiff or any other person, 5 BING. (N. C.) 697. MUSKETT V. HILL 1269 from and after the affixing of such notice, keep six able miners constantly employed in driving the adits, or making the [697] deepest levels within the said limits, nor work nor search for minerals, according to the true intent and meaning of the said first-mentioned indenture, and of the covenants, provisoes, and agreements therein contained; but that they wrongfully failed, after such notice and affixing, so to do, contrary to the said covenant and proviso, for a longer time than one month after the affixing of the said notice as aforesaid. And the Defendants further said, that afterwards and after the expiration of one month from the affixing of such notice as aforesaid, and...
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