in the agreement (which was not clear), the plaintiff was not entitled to a lease of mines so largely exceeding the estimated acreage of the mines agreed to be demised to him as the mines lying to the eastward of the fault, and he could not be considered as constructively in possession of more than the lessors had by their agreement bound themselves to demise.

In construing the words "or thereabouts," when used to qualify the statement of the estimated quantity of mines agreed to be demised, the same principles ought to be acted upon as would guide the Court in construing the same words in an agreement for sale or demise of the surface.

In the case of R. v. Hickman and others, tried at Stafford, in March, 1861, before Mr. Baron Wilde,. an attempt was made to give a criminal character to acts of this nature. The prosecutor was the occupier of a colliery, and the prisoners were in partnership, and occupied an adjoining colliery. This last had been partially worked out by other previous occupiers, but in 1857 the prisoners took a lease of it, and continued the works by taking out the ribs and pillars. In February, 1860, the prosecutor, in consequence of suspicions, applied to the prisoners for leave to inspect their workings, which was refused. In July the prisoners, on being applied to by the prosecutor's solicitor, gave permission. It was then discovered that a brick wall had been made across a gate-road near the boundary of the two mines, in consequence, as the prisoners said, of the fire-damp, which made it impossible to work further in that direction. The prisoners refused to remove this dam. A mining

engineer deposed that in 1859 he had informed the prisoners that they had carried the gate-road a little beyond their boundary, through the prosecutor's mine. Another witness, who had been in their employ early in 1860, proved that not only had this gate-road been carried about 100 yards through the prosecutor's mine, but that he had been told by the prisoners to get the coal on both sides of it. It was thick coal, and was about twenty yards in thickness, and this witness said that it had been taken by order of the prisoners, who superintended the under-ground work, to the extent sometimes of fifteen yards in width. It was after this that the dam was constructed, and the suggestion was made that the dam was for the purpose of concealing what had been done. The prosecutor admitted that he himself had formerly been compelled to make compensation for coal which he said had been taken by his servants from an adjoining owner without his knowledge. Mr. Baron Wilde told the jury that they must be satisfied that the prisoners did not take the coal by mistake before they convicted them. The question whether it had been taken by mistake or wilfully, and with the felonious intent, would depend partly upon the extent to which the coal had been taken, and the circumstances under which it had been taken. The jury were to consider whether there was any good reason for putting up the dam, or for not taking it down; in which latter case, if no coal had been taken, it might have been clearly shown. He then referred to the evidence of the surveyors, and finally left it to the jury to say whether they were

satisfied with the evidence of the witness who proved the working by order of the prisoners. The jury retired, and afterwards found a verdict that the prisoners had taken the prosecutor's coal, but did not do it wilfully.

The above report is from the assize intelligence in the Times; but their reports are remarkably accurate, and it is therefore inserted here to show that working out of bounds may sometimes be the subject of criminal as well as civil proceedings. The evidence must, however, be extremely strong and clear to justify proceedings of this nature.

The Statute of Limitations may be pleaded to actions of trespass for injuries of this kind. If the acts complained of took place more than six years before the commencement of the suit it will fail if the limitation is set up as a defence. Even fraud will not prevent the operation of the statute. But while this statute greatly curtails the remedy in the Common Law Courts, those of Equity will hold that in cases of fraud the time begins to run from the discovery of the mischief, or from the time when, with due diligence, the discovery might have been made.* If, therefore, an action is brought in a Court of Equity for an account of minerals wrongfully taken, the statute cannot be successfully pleaded if the injury has been first discovered within six years from the filing of the bill. It is in general very difficult to obtain evidence of intentional fraud. But when coal has been taken by working out of bounds, there must be either fraud or * Dennis v. Shuckburgh, 4 Young & C. 42.

R

mistake.

And a Court of Equity will give the same relief by decreeing an account in cases of mistake as well as of fraud.*

Where a mine-owner has reasonable ground for belief that an adjoining mine-cwner is trespassing, he can obtain, upon an affidavit of the grounds of his belief, an interlocutory order for inspection under order 30, rule 3, of the Judicature Acts, upon such terms as to costs as to the judge seems fit. Mitchell v. Darley Main Colliery Company (10 Q. B. Div. 457).

In the case of Trotter v. Maclean (13 Ch. Div. 576, 42 L. T. R. 118), the operation of the Statute of Limitations was considered with reference to wrongful workings. In that a mine-owner worked into an adjoining mine in the honest belief that he was about to obtain a contract from the trustees in whom it was vested, and he gave one of them notice that he was about to commence. They, however, had no power to contract with him. The Court held that the working was to be deemed inadvertent; and, in taking the account on that supposition, defendant was allowed the cost of severing and raising them. But from the time he received notice that no contract could be made authorising him to work, his working was treated as fraudulent, and he was only allowed the cost of bringing these to bank. It was held also that so long as a wrongful working is to be treated as inadvertent the Statute of Limitations applies, and the account will only be directed for six years from the issue of the writ. But the onus is on the defendant to show that minerals got by him were got before six years.

* Brooksbank v. Smith, 2 Young & C. 58.

CHAPTER XV.

COALS LYING UNDER RAILWAYS AND CANALS.

In the case of a railway passing through a mineral district, it would have greatly added to the expenses of the undertaking if the company had been obliged to purchase the subjacent minerals, which they did not want, as well as the surface, which they did want. A provision, convenient and useful to all parties concerned, was introduced by the Legislature into the Railway Clauses Consolidation Act, 8 Vict. c. 20, by which the property in the subjacent minerals is severed from that of the surface in the case of lands purchased for the purposes of a railway. The clauses which refer to such conveyances, and to the notice required to be given before working such minerals, and to the power reserved to railway companies of purchasing them, and the rights of the owner after notice, are as follows:

Sect. 77.-The company shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away or used in the construction of the