which the lessees pleaded that they would have continued to work the mines, and would have erected the engines, but that there were no mines of coal in the lands which ought to be worked by any person acquainted with the nature of collieries, or which it was in such cases usual to work, or which would have defrayed the expense of working, and that they had ascertained the truth of this by trials. Lord Ellenborough held that this plea might be no answer to the alleged breach of covenant for the time past in not trying to get the coal, yet it was an answer to any further breach that they had tried as far as they could and ought to do in the judgment of persons of competent skill, and as far as was usual and customary, and that no coal could be got. It was suggested, however, that it would be better to take issue upon sufficiency of the experiments made by the defendants, and leave was given to amend for that purpose.

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In the case of Jones v. Shears (7 Car. & Payne, 346) a tenant had agreed to work a coal mine, so long as it should be "fairly workable." There were coals in the mine, but of such a description that it would not pay to work it. It was held that under these circumstances the tenant was not bound to work the mine, and that under the words "fairly workable a tenant was not bound to work at a dead loss. This was, however, the individual ruling of Mr. Justice Coleridge.

In the case of James v. Cochrane (22 Law Journ. Ex. 201, and 8 Excheq. 556) the covenants were very obscure and ambiguous, and there was no express obligation on the lessees to work the mines at all.

There it was held that the lessees could not be compelled to sink a pit for that purpose, even though it was doubtful whether any other mode, by way of outstroke or adit, was authorised by the lease.

In the case of Morris v. Smith (3 Doug. 279), a lessee had covenanted in a coal lease to pay a certain proportion of the value of nine hundredweight of the coals to be raised, unless he were prevented by unavoidable accident from working the pit. The defendant pleaded that he had been so prevented by unavoidable accident. It appeared in evidence that the accident might have been remedied at a greater expense than the value of the coals to be raised. It was held that the lessor was entitled to recover upon the covenant, on the ground that the accident was not of such a nature as to render the working of the pit impossible, but only more difficult and expensive.

In the case of Philipps v. Jones (9 Sim. 519), the plaintiff was lessee of a coal mine, at the rent of £300 a year, and subject to a royalty of ten shillings for every wey of coals raised in each year above six hundred, that being the quantity considered to be paid for by the £300 a year, and the plaintiff was authorised to put an end to the lease on the coal being worked out. The plaintiff worked the mine for several years, and when it was nearly exhausted, he was prevented by accidents and defects in it from continuing to work it, except at a ruinous expense. The court refused to restrain the landlord from suing for the rent of £300 a year; though the plaintiff offered to pay him ten shillings per wey for all the remaining coal. It must be observed that in this case

the power of abandoning the work had been limited to entire exhaustion, and it was agreed that the certain rent should be paid at all events.

In the case of the Marquis of Bute v. Thompson and others (14 Law Journ. N. S. Ex. 95), the lessee of a coal mine underlet it to the defendants, who covenanted to raise and work 13,000 tons of coal in each year, and pay at the rate of 8d. per ton royalty for the same, or pay that amount of money, namely, £433 6s. 8d., as fixed rent, whether the coals should be worked or not, and also 9d. for each ton over and above that quantity, to whatsoever extent the coals should be worked. An action was brought for the rent, and the defendants pleaded that by the fair and proper working and getting of the coal claimed, the same was before the half year claimed for greatly exhausted, and that less than a fourth part of the 13,000 tons was left. This plea was founded upon the supposition that the existence of a sufficient quantity of coals to make up the royalty was a condition precedent to the plaintiff's right of action. But the Court of Exchequer held that the stipulation for a fixed rent, coupled with a covenant that coal should be worked to that extent, and if above it, that there should be a payment of 9d. for each ton over and above, did not carry with it, by any implication, & condition that there should be coals to that amount capable of being wrought. "It appears to us," said Chief Baron Pollock, "to be a stipulation on the part of the defendants, that they will work and get that quantity, and if they did not get it, that they would

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pay a fixed rent to the landlord; and we cannot import into that covenant a condition that there should be coals to that extent. If that was the intention of the parties they should have so expressed it."

In the case of Mellers v. Duke of Devonshire (22 Law Journ. C.C. 310), certain rents were reserved in the lease for every acre of two beds of coal, and it was also stipulated that every year the tenant should work not less than two acres of two beds of coal, or would pay for that quantity at that rate every year, whether the same could be got or not. The lessee filed a bill for cancelling the lease, on the ground that the coal in one bed could not be freed from water so as to be worked; that this fact could not be known before the lease was granted; and that the other bed was so broken by faults as to render it impossible to procure the stipulated quantity. But it was held that such a mistake on the part of the lessee was not relievable; that every mining lease was granted in ignorance of what might be got; that the parties make terms accordingly; and that the lessee was bound to pay the rent.

An important case, Morgan v. Lewis and others, was lately tried at Swansea with respect to the construction of a lease. There were two great questions: first, whether a dead rent of £1,000 a year, which had been expressly reserved to a tenant for life, who was the original lessor, was to be paid during the whole term to the remainder men who came in after him, whether the coal was worked or not, there being no

express reservation of it to them. The second question was in substance whether the assignees of the lease were justified in ceasing to work the coal after certain trials, on its proving unmarketable and unprofitable. There was a demurrer to the declaration so far as it related to the dead rent of £1,000. It was admitted that there was no express covenant to pay it after the death of the tenant for life. But it was argued that the average clause which provided that the lessees or their assigns might, every year during the term, make up any deficiency in the stipulated manner so as to balance the rent of £1,000, indicated the intention of the parties that the said rent should always be paid till the expiration of the lease. The court said that if they could gather such an intention for the reversioner as well as the tenant for life to have the benefit of the rent they would prevent any default. But they thought there should be evidence of intention in the language of the instrument itself, and that it was reasonable to suppose that the tenant for life might have made stipulations for quick working which might not be made to enure to the benefit of the reversioner. The claim to the £1,000 a year

was therefore lost.

As to the action tried at Swansea, it turned upon the covenant to work in a workmanlike manner, according to the custom of working in the neighbourhood, and honestly to get all the minerals which can be found under the said hereditaments so as not to prejudice the future working, and shall not suffer to be left any minerals which, according to the most approved mode of working, ought fairly to be worked.