Vice v Thomas
| Jurisdiction | England & Wales |
| Judgment Date | 30 May 1842 |
| Date | 30 May 1842 |
| Court | Exchequer |
English Reports Citation: 160 E.R. 1120
IN THE COURT OF EXCHEQUER IN EQUITY
[538] in the court of the stannaries or cornwall. before prince albert, lord warden, lord lyndhurst, C, lord brougham, lord langdale, M. R., wigram, V. C, and parke, B vice . thomas. May 21st, 30th, 1842.-The equitable jurisdiction of the Vice-Warden of the Stannaries of Cornwall depends upon the principles of equity, as administered in the High Court of Chancery Therefore, m a case where ejectment lies for a mine, a petition to the Vice-Warden for delivery of possession to the plaintiff, without alleging any impediment to the recovery of the premises in a court of law, is bad on demurrer. Nor will a petition lie simply for an account of meane profits of a mine, in a case where it is not shewn that any difficulty exists in taking the account, or that such account may not be taken as conveniently at law as in equity.-Semble, that the interest of an owner of tin bounds in Cornwall is not a mere easement or incorporeal hereditament, but may be the subject of an action of ejectment, even where he is not in actual possession at the time of the wrongful entry of the defendant. This was an appeal (a) against an order of the Vice-Warden of the Stannaries of Cornwall, made in the equity side of that Court, upon the petition of W. M. Thomas. The petition stated that, on or about the 12th August, 1825, J. S. Enys, of Enys, in the county of Cornwall, Esq., being lawfully possessed of the several tin bounds thereinafter mentioned, did by indenture of that date, for the consideration therein expressed, grant and set to the petitioner, his executors and assigns, full and fiee liberty, license, power, and authority to dig, work, and search for tin and tin ore, within, under, and throughout his tin bounds in Polberrow mine, that is to say, &c., and the tin and tin stuff there found to raise and bring to grass, and there to spall, dress, stamp, make merchantable, and (subject to certain reservations and covenants, and to the right of persons lawfully claiming royal mines) to convert and dispose of (a) A more full report of this case, with an appendix, has been published by Edw. Smirke, Esq. 4 Y. & C. EX. 539. VICE V. THOMAS 1121 the same to his and their own use, with liberty to dig drafts, shafts, pits, cats, or other conveniences necessary or convenient for the better working of the premises: To hold and enjoy the said several liberties, &c., to the [539] petitioner, his executors, administrators, and assigns, from, &c., for and during the term of twenty-one years thence next ensuing, subject to certain reservations and payments therein contained That in pursuance and exercise of the liberties, &c., so granted to him, the petitioner began in or about the month of, &c., to dig, work, and search for tin and tin ore, wibhinand under the said tin bounds, and, for the purpose of more effectually working within the same, erected whims and other machinery and buildings thereon, and expended a large sum of money, to wit, the sum of 10,000, or thereabouts, in erecting such whims and machinery and buildings, and in digging, working, and searching for tin and tin ore, within and under the same tin bounds, until about the month of May, 1827, when he discontinued working, but with the full intention of resuming mining operations within the bounds, when it should be convenient so to do; and that, with that intention, he left whims and other machinery standing upon the same tan bounds. That the petitioner raised large quantities of tin and tin ore within the tin bounds between the month of, &c., and the month of May, 1827, and disposed of the same to his own use and benefit, and that he duly paid the toll and farm respectively payable in respect thereof. That the said J. S Enys had not re-entered upon tha same tin bounds, or revoked, or countermanded, or annulled the said indenture or any of the liberties thereby granted or set to the petitioner, and that the said bounds, at the date and execution of the said indenture, were and still are good and lawful tin bounds, and had been duly and regularly preserved and kept on foot, as required by, and agreeably to, the laws and customs of the stannaries of Cornwall. That whilst the petitioner was so entitled, and whilst a part of such machinery was standing within and upon the same tin bounds, the defendants, William Vice, of, &e., within the said stannaries, merchant, and John Bennetts, of, &c., within the said stannaries, mine agent, [540] combining and confederating with divers other persons unknown to the petitioner, in or about the month of January, 1834, forcibly and fraudulently entered upon the same tin bounds, and broke down and removed the said machinery, and expelled and dispossessed the petitioner of and from the same tin bounds, and from thenceforth had kept possession of the same, and dug, worked, and raised tin and tin ores within the same, and earned away, converted, and disposed of, to their own benefit, large quantities of tin and tin ore, to the manifest wrong and injury of the petitioner and against the laws and customs of the said stannaries. That the plaintiff had frequently required the defendants and their confederates to deliver up possession to him of the same tin bounds and workings within and under the same, and the tin and tin ore raised therefrom, and in their possession, and to aecount for and pay to the petitioner the proceeds and produce of the tin and tin ore a& disposed of by them, as in justice and equity ought to have been done; but that they had hitherto refused to deliver up possession of the same tin bounds, or any of them, or any part thereof, or of the workings within or under the same, or the tin and tin ore so raised therefrom, and had also refused to account for and pay the proceeds and produce of the said tin and tin ore, to the great wrong, &c., contrary to equity and good conscience, and against the laws and customs of the said stannaries. The petition prayed a summons convening the defendants before the Vice-Warden, to answer the premises, and that they might be ordered and decreed to declare the names, &e., of their confederates within the said stannaries, in order that they might be made parties defendants to the suit; and that the defendants might be ordered and decreed to deliver up possession to the petitioner of the said tin bounds and workings, and of the said tin and tin ore, and account for and pay to him the proceeds and prodmce of the tin, &c., and for general relief. [541] To this petition the defendants demurred generally, for want of equity, and also specially. Amongst the special causes assigned for demurrer were the following, viz., that the petition was an indirect attempt (under the pretence of an application to the Court for an account and equitable relief) to try the title to the nines. That the petitioner shewed no want of title in the defendants, or any title in himself, or any title in Enys. That Enys, supposing him to have been possessed of the bounds, could not pass the same to the petitioner, or demise or transfer the same, or make the said grant, but that he could only be entitled by the laws and euatoms of the stannaries to work the same, rendering the accustomed toll to the Ex. Div. XVI.-36 1122 VICE V. THOMAS 4 Y & C EX 542 lord of the soil, and could not transfer his right of working to another. That the petition was, on the face of it, a plea of land, and a claim of an interest in the soil; and that it prayed that the defendants might be ordered to deliver up possession thereof. That it was, in fact, an application to the Court to restore possession to the complainant, and was therefore substantially1 a proceeding in the nature of an action of ejectment; and that the first part of the prayer was substantially for a writ of habere faeias possessionem, and the latter part, in effect, an application for the mesne profits; and that, for any cause or complaint set forth, the remedy was in a court of law, and this Court had no jurisdiction. The demurrer was argued at Truro on the 24th January, 1838. On a subsequent day- dampier, V. W., delivered judgment. The petition of W. M Thomas against William Vice and John Bennetts was argued here at the last sittings. The petition stated that, in August, 1825, Mr ^Enys, being lawfully possessed of tin bounds, did, by indenture, set to the plaintiff for twenty-one years. That plaintiff, in puisuance of such indenture, in 1823, commenced work, and continued to [542] work till 1827, when he discontinued, with an intention of resuming the works within the said bounds 5 and, therefore, left machinery thereon : and that while the plaintiff worked, he raised ore, and duly paid the toll to Mr. Enys, who has not at any time re-entered, or revoked the set; but that the indenture and set are still valid, and subsisting for the residue of the term of twenty-one years; and the bounds, which, at the time of making the indenture, were valid tin bounds, have been duly and regularly renewed according to the custom of the stannaries. That the plaintiff being entitled, as aforesaid, to work the bounds, and having left his machinery thereon, and whilst the same was there standing, the defendants, in 1834, forcibly and fraudulently entered, and expelled and dispossessed the plaintiff from the same bounds, and have worked and raised ore. For which the plaintiff prays an account, and a re-delivery of the bounds. To this petition the defendants demurred, and stated the causes of demurrer at considerable length, as in a special demurrer at common law. The causes may be collected into several distinct classes and severally examined without very much repetition. The first cause of demurrer was that the plaintiff had no equity . because, as was argued by the advocate for the defendant, the Stannary Convocation Act of 12 Car. 1, S. 18, may have given the defendant a title accruing to him by eighteen months'...
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