the land is copyhold: Glover v. Cope (). A grantee of the reversion in copyhold lands is an assignee of the reversion within the meaning of the statute 32 Hen. 8, c. 34: Whitton v. Peacock (b), 1 Smith's Lead. Cas. 51, 5th ed. The interest of the lord in the soil will not prevent the covenant running with the land, although if he sued for a forfeiture he might not be bound by it. There is no reason why copyhold land should not be dealt with in the same way as freehold. The case of Keppell v. Bailey (c) is distinguishable. There a Company having constructed a railroad, the lessees of certain iron works covenanted for themselves, their executors, administrators, and assigns, with the Company and their assigns, to procure all the limestone and ironstone used in the works from a particular quarry, and convey it to the works along the railroad, paying a certain toll. The lessees of the iron works assigned their lease to the defendant, who constructed a railroad to another lime quarry, and it was held that the covenant did not run with the land so as to bind him. But there the covenant was not to do anything upon the land assigned. The general rules as to covenants running with the land are, first, that where the covenant extends to a thing in esse, parcel of the demise, as to repair the houses demised, it runs with the land and binds the assignee although not expressly named: secondly, where the covenant is with reference to a thing not in esse at the time of the demise, but afterwards to be done upon the land, as, for instance, to build a wall, it does not run with the land so as to bind the assignee unless he is named: thirdly, where the covenant is not in respect of anything to be done on the land demised, it is merely collateral, and will not bind (b) 3 Myl. & K. 325.

(a) 3 Lev. 326; Skinner, 305.

(c) 2 Myl. & K. 517.

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the assignee although named: Spencer's Case (a).— Secondly, the covenant operated as a grant by Girdlestone to Bickley and his assigns, to work his mines without making any compensation for injury done Girdlestone and his assigns. No particular words are necessary to a grant, it is sufficient if there is an apparent intention to grant. In Keppell v. Bailey (b) the covenant could not operate as a grant. But in Rowbotham v. Wilson (c), where certain lands were enclosed under an Act of Parliament, and the mines allotted to persons other than those to whom the surface was allotted, and the owners of the surface covenanted with the owners of the mines that they might work them without being liable in damages for injury to the surface, it was held that the covenant operated as a grant of a right to disturb the surface. There Lord Wensleydale said that if the Commissioners had no power to award the surface to one person and the minerals to another, the award would be void; but an owner of the surface "would be still bound by the deed which he executed, which would operate as a grant of the right to win the coals in such a manner as might injure the superjacent land." [Martin, B.-That was the case of a grant of a right to disturb the surface of land by working mines under it.] It makes no difference in principle whether the right granted is to work mines under the land conveyed, or under adjoining land. The right to support of land is not an easement, but one of the ordinary rights of property: Bonomi v. Backhouse (d), and the disturbance of that righ may be properly the subject of a grant.

Arguments for the plaintiff. First, the plaintiff's land was copyhold, and conveyed by surrender and admission

(a) 5 Rep. 16.

(b) 2 Myl. & K. 517.

(c) 8 H. L. 348.
(d) E. B. & E. 622. 642.

A copyholder

on the court rolls, so that, whether this be a covenant
or a grant, the land was not bound by it.
cannot, without the consent of the lord, make a grant
which binds the land, by a common law covenant not
entered on the court rolls, more especially for the mere
benefit of an adjoining landowner. The surrender makes
no mention of the deed of the 6th May, 1834, but there is
an absolute conveyance of the land. The owner of the
mines had no right or power, by a secret deed, to impose
a servitude on copyhold land. It is not alleged that there
is any custom of the manor which justifies this secret
dealing, which materially affects the rights of the lord,
especially as regards his fine. The rights of a copyhold
tenant as against the lord must be defined by that which
appears on the court rolls. "A surrender may be made
upon condition; and this is most usually done by way of
mortgage. The condition should always immediately
follow the surrender, and be carefully inserted in the court
rolls:" Watkins on Copyholds, vol. 1, p. 146, 4th ed. In
the absence of any special custom to that effect, the lord of a
manor cannot be compelled to take a surrender by deed
burthened with trusts: Flack v. The Masters &c. of Downing
College (a). There Jervis, C. J., in delivering judgment,
said: “It is true, that upon one construction it may not
deprive the lord of a tenant; but it does tend to deprive
him of a fine. That is an objection which the lord has a
right to urge." In Peachy v. The Duke of Somerset (b)
where a copyhold tenant, upon his marriage, surrendered
all his copyhold lands to the use of himself for life, with
remainder to the first and every other son in tail male; but
there was no admittance upon that surrender, Lord
Hardwicke, C., said, "The lord is not bound to take notice

(a) 13 C. B. 945.

(b) 1 Stra. 446. 454.

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of anything but what appears on the court rolls." And in a report of the same case in Prec. in Chanc. p. 573, the Lord Chancellor is said to have been clear, that, as there had been no admittance upon the surrender to the uses of the settlement, the father was to be considered as absolute tenant to the lord. If the copyhold tenant had himself caused this damage to the buildings, it would have been a forfeiture: Com. Dig. Copyhold (M. 3). Watkins on Copyholds, vol. 1, p. 398, 4th ed.; then how can he confer on a stranger the right to do it?-Secondly, the copyhold land was enfranchised after the execution of the deed of the 6th May, 1834, and before the damage was done to the buildings. The enfranchisement changed the tenure from base to free, and all rights, privileges and burthens annexed to the copyholder's estate were abolished: Watkins on Copyholds, vol. 1, p. 451. Assuming, therefore, that the deed of the 6th May, 1834, imposed a servitude on the land when copyhold it was put an end to by the enfranchisement. Thirdly, this covenant cannot operate as a grant; neither is it a covenant which runs with the land. In Smith's Lead. Cas., vol. 1, p. 74, 5th ed., it is said: "Upon the whole, there appears to be no authority for saying that the burthen of a covenant will run with land in any case except that of landlord and tenant; while the opinion of Lord Holt in Brewster v. Kitchin (a), that of Lord Brougham in Keppell v. Bailey (b), and the reason and convenience of the thing, all militate the other way." [Martin, B., referred to Hill v. Tupper (c), and Rowbotham v. Wilson (d).] There the Commissioners were empowered to allot the commonable lands according to the rights of the parties interested in

(a) 1 Ld. Raym. 318; Comb. 424. 466; 1 Salk. 198; 5 Mod. 369; 12 Mod. 166; Holt, 175. 668.

(b) 2 Myl. & K. 517.
(c) 2 H. & C. 141.

(d) 8 E. & B. 123; in error, 8 H. L. 348.

by their award it was agreed that the mine owners should not be subject to an action for damage for injury to the surface. The terms of that award differ from the language of this covenant, which can only be construed as a covenant not to sue, which is personal to the covenantee, and not assignable. Besides, in Robotham v. Wilson, a larger extent of surface was given to the allottee of the surface, as a compensation for the minerals; each of the parties took with full knowledge that the one was to have large powers in working the mines, and that the other was to have the surface subject to that power. Therefore that case is distinguishable, whether the nature of the instrument, the fact of compensation, or the knowledge of the parties of their respective titles, be taken into consideration.

Gray, in reply.-The enfranchisement did not affect the covenant in the deed of the 6th May, 1834. It is not like the case where an easement is extinguished by the dominant and servient tenement becoming united in the same owner. The covenant operated as a grant, and there is no reason why the person who took the estate of the covenantor should not be bound by it. [Martin, B., referred to the 3 Geo. 4, c. 72, s. 2.] The deed was substantially a part of the surrender. [Pollock, C. B.-It may be that a Court of Equity would give effect to it, but a Court of law cannot.] This is not a question between the lord of the manor and the copyholder, but between the parties to the deed. If a person conveys to another land to which he has no title, and he afterwards acquires a title, the conveyance will operate by way of estoppel.

VOL. IV.-H. & C.

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