ment recovered upon the cheque. Then it is said that the claim on the guarantee against Thomas was extinguished by the judgment recovered against him on the cheque, upon the ground stated by Manisty, J. in Cambefort v. Chapman (ubi sup.). That learned judge there cites a passage from Byles on Bills (14th edit., p. 313) as an authority for that proposition, but I do not think that the proposition laid down in that passage is supported by the authorities cited for it. On the other hand, the case of Drake v. Mitchell (ubi sup.) is a clear authority that, in such a case, the joint debt is not extinguished. That case was not decided upon the ground that the original contract was a contract by specialty, but upon the ground that the bill, not being given in satisfaction of the debt, only operated as a collateral security, and that the judgment upon it not having produced satisfaction, in fact did not bar the remedy upon the original contract. I think, therefore, that we ought to follow the decision in Drake v. Mitchell (ubi sup.). Then as to the point that Thomas was not sued jointly with the present defendant it appears from Kendall v. Hamilton (ubi sup.) that one joint contractor has a right not to be sued without the other, but he has an option whether he will insist on that right or not. Here the defendant has not insisted on such right, though he might have done so. The appeal fails, and must be dismissed.

:

Appeal dismissed.

Solicitors for the appellant, Wrentmore and Sons, for Morgan, Rhys, and Bruce, Pontypridd. Solicitors for the respondent, Woodcock, Ryland, and Parker, for E. M. Underwood, Hereford.

Nov. 15, 16, 17, and Dec. 14, 1894. (Before Lord ESHER, M.R., LOPES and RIGBY, L.JJ.)

REG. T. VESTRY OF MARYLEBONE. (a) APPEAL FROM THE QUEEN'S BENCH DIVISION. Ecclesiastical law-Church rate Compuisory church rates abolition-Church rate levied under private or local Act-" Upon any contract made, or for good or valuable consideration given"-Fees collected by burial board applicable to repair of church-Compulsory Church Rates Abolition Act 1868 (31 & 32 Vict. c. 109), s. 5— Burial Act 1852 (15 & 16 Vict. c. 85), s. 36. The Compulsory Church Rates Abolition Act 1868, by sect. 5, provides that the Act "shall not affect any enactment in any private or local Act under the authority of which any church rates may be made or levied. upon any contract made, or for good or valuable consideration given."

Held, that the "contract made' or the "good or valuable consideration given" must appear in, or from the construction of, the enactment in the private or local Act which authorises the levying of the church rate.

Under a private Act the vestrymen were empowered to build a new parish church, and provide a cemetery, and to fix and receive fees for burials in the church or cemetery, and to apply the same to, among other purposes, the repairs of the church.

(a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law.

[CT. OF APP.

The Burial Act 1852, s. 36, provides that, where burial fees, or any part thereof, in the burial ground of any parish for which a burial ground is provided under the Act, are by law or custom payable to any persons for any parochial purpose or the discharge of any debt or liability, such fees shall be payable in the burial ground provided under the Act, and shall be received by the burial board and paid to the parties entitled to receive the same.

Held, that the burial fees payable to the vestrymen under the private Act were payable in the burial ground provided by the burial board, and were payable by the burial board to the vestrymen for the purpose of repairing the parish church.

APPEAL by the prosecutor from the judgment of the Divisional Court (Mathew and Day, JJ.), and a cross-appeal by the vestry.

A rule nisi for a mandamus, on the application of the rector of the parish of St. Marylebone, was obtained calling upon the vestry of the parish to show cause why they should not, (1) make under their statutory powers a rate for the repair of the parish church; or in the alternative (2) take proper steps to recover from the burial board of the parish certain fees said to be applicable for the purpose of repairing the parish church.

The parish church being insufficient, an application was made to Parliament for powers to erect a new church. The Act of 51 Geo. 3, c. cli., was obtained in 1811. That was an Act "to enable the vestrymen of the parish of St. Marylebone to build a new parish church, and two or more chapels; and for other purposes relating thereto."

In 1821 the Act of 2 Geo. 4, c. xxi., was obtained "to enable the vestrymen to effectuate the building of four district churches, and for other purposes relating thereto."

Both these Acts authorised the vestry to make. rates in the nature of church rates; but nothing appeared in either Act to show that there was any contract that these rates should be levied, or that there was any consideration given for the power to levy such rates.

It was alleged that there had been a contract, and that consideration had been given; and affidavits were filed to prove the allegation.

The Compulsory Church Rates Abolition Act 1868 (31 & 32 Vict. c. 109) provides :

Sect. 5. This Act shall not affect any enactment in any private or local Act of Parliament under the authority of which church rates may be made or levied in lieu of, or in consideration of the extinguishment or of the appropriation to any other purpose of, any tithes, customary payments, or other property or charge upon property, which tithes, payments, property, or charge, previously to the passing of such Act, had been appropriated by law to ecclesiastical purposes as defined by this Act, or in consideration of the abolition of tithes in any place, or upon any contract made, or for good or valuable consideration given, and every such enactment shall continue in force in the same manner as if this Act had not been passed.

Sect. 49 of the Act of 51 Geo. 3, c. cli., enabled the vestrymen to settle the rates and fees for burial of the dead in the vaults of the new parish church and of the chapels, and in the intended cemetery and vaults under the same; and gave them power from time to time to alter and amend

such rates and fees. Sect. 71 gave the vestrymen power, from time to time, to borrow a sum of money upon the credit of the rates and fees arising on account of burials in the new church and chapels, and in the intended cemetery, and also on the rates and fees arising on account of burials in any other cemetery within the parish, and to assign such rates and fees as security. Sect. 78 provided that the moneys arising from such rates and fees, after paying the expenses of obtaining the Act, should be applied and disposed of for and towards carrying the purposes of the Act into effect. Sect. 80 provided that the vestrymen should apply any surplus moneys, after paying and discharging the several annuities and the other annual sums and annuities to be paid under the Act, and the repairs of the new church and chapels, to such parochial purposes as they should think right and proper for the use and benefit of the parishioners, and the rates should thenceforth cease to be levied.

The Burial Act 1852 (15 & 16 Vict. c. 85) provides:

Sect. 19. The expenses incurred, or to be incurred, by the burial board of any parish in carrying this Act into execution shall be chargeable upon and paid out of the rates for the relief of the poor of such parish, the expenses to be so incurred for or on account of any parish in providing and laying out a burial ground under this Act, and building the necessary chapel or chapels thereon, not to exceed such sum as the vestry shall authorise to be expended for such purpose; and the overseers or other officers authorised to make and levy rates for the relief of the poor in any parish shall, upon receipt of a certificate under the hands of such number of members of the burial board as are authorised to exercise the powers of the board of the sums required from time to time for defraying any such expenses as aforesaid, pay such sums out of the rates for the relief of the poor as the board shall direct.

Sect. 22. The money raised for defraying such expenses, and the income arising from the burial ground provided for the parish, except fees payable to the incumbent, clerk, and sexton of the parish, and the other fees herein directed to be otherwise paid, shall be applied by the board in or towards defraying the expenses of such board under this Act; and whenever, after repayment of all moneys borrowed for the purposes of this Act in or for any parish, and the interest thereof, and after satisfying all the liabilities of the board with reference to the execution of this Act in or for the parish, and providing such a balance as shall be deemed by the board sufficient to meet their probable liabilities during the then next year, there shall be at the time of holding the meeting of the vestry at which the yearly report of the auditors shall be produced any surplus money at the disposal of the board, they shall pay the same to the overseers in aid of the rate for the relief of the poor of the parish.

Sect. 34. Every burial board under this Act shall and may (without prejudice to the fees and payments berein specially provided for) fix and settle and receive such fees and payments in respect of interments in any burial ground provided by such board as they shall think fit, and also the sums to be paid for the exclusive right of burial, either in perpetuity or for a limited period, in any burial ground provided by such board, and also the right of constructing any vault or place of burial with the exclusive right of burial therein in perpetuity or for a limited period, and also the right of erecting and placing any monument, gravestone, tablet, or monumental inscription in such burial ground, and every burial board, with the consent of the vestry, may from time to time revise and alter such fees, payments, and sums as aforesaid; and a table showing such fees, pay

[CT. OF APP.

ments, and sums, and all other fees and payments in respect of interments in such ground, shall be printed' and published, and shall be affixed and at all times continued on some conspicuous part of such burial ground.

Sect. 36. Where fees or any portion of fees payable on interments, or for any monument, gravestone, tablet, or monumental inscription, in the burial ground of any parish for which a burial ground is provided alone or jointly with any other parish or parishes under this Act, are by law or custom payable to the churchwardens of any parish, or to trustees or other persons, for or towards the payment of any annuity or stipend to the incumbent or minister, or any other parochial purpose, or the discharge of any debt or liability, such fees or portion of fees shall be payable in the burial ground to be provided as aforesaid for such parish under this Act, and shall be received by the burial board and paid to the parties entitled to receive the same; and where fees or payments have been received on interments, or for any monument, gravestone, tablet, or monumental inscription, in the burial ground of any such parish by any such churchwardens, or by trustees or other persons, for the purpose of discharging any periodical payment or other liability, it shall be lawful for the burial board, upon the request of such churchwardens, trustees, or persons, to pay from time to time, out of the fees and moneys received by them on account of such parish, such amount as may be necessary for discharging such periodical payment or liability.

Sect. 37. It shall be lawful for the vestry of any parish from time to time, if they think fit, with the consent of the bishop of the diocese, to revise and vary the fees payable to the incumbent, clerk, and sexton, and other persons and bodies respectively, under the provisions of this Act, or, with such consent as aforesaid, to substitute for the fees payable to such incumbent, clerk, sexton, and other persons and bodies respectively, a fixed annual sum of such amount as to such vestry may seem just, to be payable by such periodical payments as such vestry may appoint, and in such last-mentioned case the fees, which would otherwise be payable under this Act to the incumbent, clerk, and sexton, and such other persons and bodies respectively, shall be paid to the burial board, and such fixed payments as aforesaid shall be paid by such board.

The Divisional Court (Mathew and Day, JJ.) discharged the rule as to the levying of a churchrate, but made it absolute as to the burial fees.

The rector appealed in respect of the churchrate, and the respondents gave notice of a crossappeal in respect of the burial fees.

Sir H. James, Q.C., Dr. Tristram, Q.C., H. Sutton, and A. H. Dennis, for the appellant.

Sir R. E. Webster, Q.C., English Harrison, and Dibdin, for the respondents. Cur. adv. vult.

Dec. 14. LOPES, L.J.-The rule which was obtained in this case calls upon the vestry of St. Marylebone to exercise statutory powers conferred upon them to make a rate for the repairs of the parish church, and, alternatively, to compel the vestry to take proper steps to recover from the burial board of the parish certain fees said to be applicable for that purpose. The first question is whether there is a power to levy a rate for the repair of the church; and the second question is whether there are any fees derivable from the burial board applicable to that purpose. The old parish church was insufficient, and leading members of the vestry, including the Duke of Portland, determined to apply to Parliament for powers to erect a new church. The Act of 51 Geo. 3, c. cli., was obtained in 1811. It was an "Act to enable the vestrymen of the parish

of St. Marylebone to build a new parish church and two or more chapels, and for other purposes relating thereto." All parties interested co-operated for the purpose of obtaining that Act. I can find nothing like a contract in the Act. Nobody was bound to build a church. In the words of Mathew, J., "There was co-operation, mutual assent, and mutual efforts, but no more." A subsequent Act of Parliament (1 & 2 Geo. 4. c. xxi.) was obtained in the same way to enable the vestry to erect additional chapels. The vestry were authorised to levy a further rate to repay money borrowed of the Church Building Com mission, but I can find nothing in that Act of Parliament indicating any contract between the parties before applying to Parliament. Both these Acts of Parliament contained powers enabling the vestry to make rates in the nature of church rates. In 1868 the Act for the abolition of compulsory church rates was passed (31 & 32 Vict. c. 109), which made church rates irrecoverable except in certain cases provided for in sect. 5 of that Act. Sect. 5 says that the Act was not to affect any enactment in any private or local Act of Parliament under the authority of which church rates may be levied (amongst other things) "upon any contract made, or for good or valuable consideration given." There must, therefore, be an enactment in some private or local Act of Parliament authorising the levying of church rates upon "a contract made, or for good consideration given." In my judgment "the contract made" or good consideration given" must be found in, or be gathered from the Act of Parliament authorising the levying the church rate. But I can find neither the one nor the other anywhere, neither in any Act of Parliament, nor outside an Act of Parliament. The case is not brought within sect. 5 of the Compulsory Church Rates Abolition Act, and upon the first ground, with regard to levying a church rate, the mandamus fails. The second ground taken is, that there are burial fees available for the repair of the church, and that they ought to be handed over. Under the Act 51 Geo. 3. c. cli., fees arising from the burial of the dead were to be collected and paid to the treasurer of the vestrymen for the purposes of the Act, and the surplus from time to time was to be applied to such parochial purposes as the vestrymen should think fit. This would include the repair of the church. Then comes sect. 36 of the Burial Act of 1852 (15 & 16 Vict. c. 85) which says: [Reads it.] The result is, that the burial fees (except service fees to the incumbent, clerk, and sexton) are receivable by the burial board and payable to the vestry for parochial purposes. The object of the Act is to carry forward to a new cemetery, to be created by the Act and used in lieu of this old burial place in or under the church, all the rights that existed in respect of the old church burial ground. It was, therefore, the duty of the burial board to hand over the fees (except service fees to the incumbent, clerk, or sexton) received by them to the vestry to be applied as provided by the private Act. It was said that the burial fees were insufficient to pay the expenses of the board. Sect. 19 of the Act of 15 & 16 Vict. c. 85, provides that the expenses of the burial board are to be paid out of the poor rate. It, therefore, is no answer to say the fees are insufficient to pay the expenses of the board.

[CT. OF APP.

I should have thought the mandamus should have been addressed to the burial board directing them to hand these fees over to the vestry, the burial board being an independent corporate body; but this is a mere technical objection, and I find Mr. Dennis, at the end of the judgment in the court below, says, "For the purposes of the rule, the burial fees are in the hands of the vestry." I agree with the judgment of the court below. The form of mandamus should be a mandamus directing the vestry to apply the fees payable to them by the burial board, and admitted to be in their hands, towards the repairs of the church.

66

RIGBY, L.J.-The first point in this case depends upon the construction of sect. 5 of the Compulsory Church Rates Abolition Act 1868 (31 & 32 Vict. c. 109). The enactment, the operation of which is saved by this section, must, so far as this case is concerned, be an enactment under the authority of which church rates may be levied upon any contract, or for good or valuable consideration given." I do not think that a rate can properly be said to be levied "upon a contract, or for a consideration," by the authority of an enactment, if the authority is only to levy the rate, without more, and no notice is taken of the contract or consideration. If sect. 5 applied wherever a contract or consideration could be found outside the Act, it would be impossible to decide as to the power of enforcing a church rate without an exhaustive inquiry into all the circumstances attending the obtaining of the Act, which in many cases would be impossible. It has been suggested that contracts or considerations may have been brought to the notice of a committee of either House, but that would not be to my mind sufficient. No committee can legislate, and the only test which can be applied in order to solve the question whether a contract or consideration has influenced the Legislature is to look at the Act itself. In my judgment, the contract or consideration must be one appearing upon, or to be arrived at by the construction of, the enactment, and I do not find any contract or consideration for the levying of these rates in either of the Acts relied upon. The contract or consideration put forward in the present case is, either the grant of the site for a church, or the relinquishment of the right of patronage by the Duke of Portland, the lay rector. No reference to the gift of the site, or to any contract relating thereto, is to be found in the Act of 51 Geo. 3, c. cli.; and, with reference to the alleged rights of patronage or interference in the case of the new chapel, I am of opinion that the Rev. Luke Heslop, being recognised by sect. 35 of the Act as the minister of the parish, the Duke of Portland could not maintain the claim to be considered incumbent, set up in the case before Sir William Scott, which must have been abandoned before the date of the Act, There is a contract set forth in the Act 1 & 2 Geo. 4, c. xxi., but that has relation only to the additional rate, not exceeding twopence in the pound, to be levied for the purposes of that Act, and I cannot accept the argument that the consolidation of the rates under the two Acts gave any powers as to the rate levied under the earlier Act which were not already given by such earlier Act, or that any part of the rate to be levied under the earlier Act could be applied for the purpose of the later Act, or vice versa. I consider the provisions as to making one rate to be for purposes of convenience only, and not to

alter substantial rights under either Act. The second point, as to the burial fees, depends upon the construction of the Acts of 51 Geo. 3, c. cli., and of the Act of 15 & 16 Vict. c. 85, as varied by 18 & 19 Vict. c. 128, s. 7. Sect. 49 of the first Act enables the vestrymen to settle the rates and fees for burial of the dead in the vaults of the new church, and of all and every the chapel to be erected and built by virtue of the Act, and in the intended cemetery and in the vaults under the same, and gives them power from time to time to alter and amend such rates and fees. Sect. 71 gives the vestrymen power, from time to time, to borrow a sum not exceeding 150,000l. at any one time upon the credit of, among other things, the rates and fees arising on account of burials in the new church and chapels in the intended cemetery, and also on the rates and fees arising on account of burials in any other cemetery, burial ground, or vault within the parish, and to assign all or any part of such rates or fees to any person who may advance money thereon as security for the principal money to be advanced, with interest thereon. Sect. 78 provides that the moneys arising from such rates and fees, after paying the expenses attending the obtaining of the Act, shall be applied and disposed of for and towards carrying the several purposes of the Act into execution. Sect. 80 provides that the vestrymen shall apply any overplus money to such parochial purposes as they shall think right and proper. All the special purposes of the Act are, in my judgment, parochial purposes, so that the effect of the Act is that all rates and fees for burials within the parish are applicable by the vestrymen to parochial purposes, and may be applied to the repairs of the church. The material sections of the Act 15 & 16 Vict. c. 85 are as follows: Sect. 19 makes the expenses of the burial board chargeable upon and payable out of the poor rate. Sect. 22 provides that the moneys raised for defraying such expenses, and the income arising from the burial ground provided for the parish, except fees payable to the incumbent, clerk, and sexton of the parish, and the other fees therein directed to be otherwise paid (the reference here is to sect. 36), shall be applied by the board towards defraying expenses, any surplus money to be paid to the overseers in aid of the poor rate. Sect. 34 enables the burial board to fix and settle, without prejudice to fees and payments in the Act specially provided for (which words include the special provision made by sect. 36), the fees and payments made for interments in any burial ground, and other fees and payments specified, and enables them with the consent of the vestry to revise and alter such fees and payments. This section is varied by sect. 7 of the Act 18 & 19 Vict. c. 128, which makes any settlement of fees under it subject to approval by a Secretary of State. Sect. 36 of the Act of 1852 is the leading and most important section, and provides, amongst other things, that fees, by law payable to churchwardens, trustees, or other persons for or towards payments or stipend to the incumbent or minister, or any other parochial purpose, or the discharge of any debt or liability, shall be payable in the burial ground, and shall be received by the burial board and paid to the parties entitled to receive the same. Sect. 37 provides that it shall be lawful for the vestry, with the consent of the bishop of the diocese, to

[CHAN. DIV.

The

revise and vary fees payable to the incumbent, clerk, and sexton, and other persons and bodies. under the provisions of the Act. The rates and fees settled and leviable under the Act of Geo. 3 seem to me to fall within the express words of sect. 36. They are payable to the vestrymen for parochial purposes, and, so long as there is any debt or liability under the Act of Geo. 3, for the discharge of such debt or liability. They must. therefore, be payable as in sect. 36 provided, unless sufficient cause can be shown to the contrary. I have considered the arguments addressed to the court on this point, and do not think them sufficient. It is suggested that the expenses of the burial board are first to be paid out of the fees and payments received by them, and that there is no surplus after payment of such expenses. answer to this is, that sect. 19 provides for the payment of the expenses out of the poor rate, and that sect. 22, in providing for payment of expenses, expressly excludes the fees in question as being by the Act directed to be otherwise paid. Then it is said that fees for the purposes of the Act of Geo. 3 have not in fact been levied by the burial board, and this is attempted to be made out by showing that the fees levied in respect of burials in unconsecrated ground differ from those levied in respect of burials in consecrated ground only by reason of the latter including in addition the fees received for or on account of the incumbent, clerk, and sexton. A comparison of the actual fees levied by the board seems to establish the fact, and the provision made by 20 & 21 Vict. c. 17 is thereby complied with. But is it shown that no fees in respect of burials in unconsecrated ground are applicable under sect. 36? I think not. The scheme of the Act seems to be to substitute, for all purposes, the fees and payments levied by and payable to the burial board in respect of burials in the new burial ground provided for the parish, in place of the former fees and payments for burials in the parish burial grounds, and to make them subject to the same rights. I hold, therefore, that all the fees and payments to the burial board are subject to the provisions of sect. 36, the result being that the burial board have received moneys which ought tohave been paid to the vestrymen for the parochial purposes directed by the Act of Geo. 3.

Lord ESHER, M.R.-I concur in the judgments which have been delivered. Appeal dismissed. Solicitors for the applicants, Ingle, Cooper, and Holmes. Solicitors for the respondents, Clarkson, Greenwells, and Co.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.

Nov. 8 and 20, 1894.
(Before CHITTY, J.)

BELL v. EARL OF DUDLEY. (a)

Inclosure Acts-Rules for construction-Separate ownership of surface and minerals-Right to work minerals-Right of support-Damage to surface-Compensation.

In the construction of Inclosure Acts, the rules by (a) Reported by G. WELBY KING, Esq., Barrister-at-Law.

which the court is guided may be stated as follows: Where the ownership of the minerals and of the surface is severed, the prima facie and strong inference is that the owner of the surface shall enjoy the surface allotted, and shall have the common right of support for his tenement. In order to rebut it, the burden lies on the owner of the minerals to show affirmatively and by clear words that he has the right of letting down the surface, but express words are not required. The presence or absence of a compensation clause is an important element; the primâ facie inference in favour of the surface owner is strengthened by the absence of any provision for compensation; the presence of a limited compensation clause is not of itself sufficient to rebut the inference.

THE plaintiff was the owner of a brewery and buildings erected on land which had been allotted to his predecessor in title under the Kingswinford Inclosure Act 1784. The Act provided, amongst other things, that an allotment of onesixteenth of the whole, and such further part as the commissioners determined, should be made to the lord of the manor in full compensation for the right of soil and right of free warren in and over the wastes, and of his beneficial enjoyment in the commonable woods, and, after directing certain special allotments, the residue of the lands was directed to be allotted to the commoners in full satisfaction of their commonable rights.

The next clause provided that nothing in the Act contained should prejudice the right or interest of the lord of the manor to all the mines of coal and other minerals specified, and all other mines and minerals whatsoever except as therein mentioned, but that he should at all times thereafter have, hold, enjoy, raise, get, take, and carry away all such mines and minerals as fully and effectually, to all intents and purposes, as he might have had, held, and enjoyed the same before the passing of the Act, or in case the same had never been made, and for that purpose might use all pits then existing. The clause then proceeded to give the lord and his successors the fullest power for working the mines and minerals, and continued: "Together with full and free liberty, power, and authority to and for him and them to do any other reasonable and necessary acts and things in and upon the same lands, woods, and grounds for the discovery, getting, working, converting, fetching, carrying away, selling, and disposing, of the mines and minerals in such manner as he or they shall think proper and expedient without any molestation or interruption, and without paying or making any satisfaction to any person or persons whomsoever for the same, or for the damage to be done thereby, he and they doing as little damage thereby as may be."

Then followed a clause commencing with the recital, "And whereas great damage may be done to some of the said allotments by reason of searching for and working the said mines and minerals," and providing that by means of contribution the damage caused to any particular allotment by the working of the mines or the exercise of any of the powers reserved to the lord, should be borne rateably by all the allottees, including the owner for the time being of the allotment damaged, and the allotment specially made to the lord.

[CHAN. DIV.

The defendant, who was the present lord of the manor, having commenced to work the mines under the plaintiff's premises, with the probable result, if continued, of letting down the surface on which the buildings stood, the plaintiff commenced this action, and moved for an interim injunction to restrain the defendant from so working the coal and other minerals underlying or otherwise supporting the plaintiff's property as to deprive the same of support or cause a subsidence thereof.

Levett, Q.C. and Ashton Cross for the plaintiff. -The Act is not to be construed so as to allow the lord to let down the surface by working the mines underneath, unless the language of the Act is clearly and unmistakably to that effect:

Bell v. Love, 48 L. T. Rep. 592; 10 Q, B. Div. 547; 9 App. Cas. 286.

Byrne, Q.C. and W. F. Hamilton for the defendant. The language of the Act is clear that the lord is to have the right to work the mines, although the result may be to let down the surface. It is not necessary for the Act to say in express terms that the mineral owner may let down the surface:

Duke of Buccleuch v. Wakefield, L. Rep. 4 H. L.

377.

They also referred to

Consett Waterworks Company v. Ritson, 60 L. T. Rep. 360; 22 Q. B. Div. 318, 702. Levett, Q.C. in reply.

The

CHITTY, J.-The question which arises on this motion is simply one of right, depending on the true construction of the Inclosure Act of 1784. The defendant is working the coal mine in a reasonable and proper manner. It is not contested that the probable result of his workings if continued will be to let down the surface of the lands on which the plaintiff's brewery stands. plaintiff claims the absolute right of support; the defendant claims the right to work the mine in a proper manner without regard to the effect of the workings upon the surface. The lands inclosed under the Act comprised upwards of 1300 acres by estimation according to the preamble, and not less than 1500 acres according to the evidence. The lands appear to be waste lands or open moor and some woods. The most valuable mineral underlying the lands is coal in seams of great thickness; the thickness of the seam under the plaintiff's ground is 30 feet, and for the security of the surface and the plaintiff's brewery standing thereon it would be necessary to leave not less than about an acre and a half of coal ungotten. The coal extends under by far the greater part of the lands inclosed, and if the plaintiff's contention is right a very large part of the coal must remain unworked. The coal has been worked for upwards of 200 years, and the surface has necessarily been let down. Questions of this kind turning on Inclosure Acts have often come before the courts in recent years. The Acts which have thus received judicial interpretation have not been drawn on the same model. When compared one with another they have presented points of resemblance and of difference leading to different results. The Act before me in some respects resembles, in others differs from any of, the Acts the meaning of which has been ascertained by the courts. Each Act has to be interpreted by its