ON THE LAWS AND CUSTOMS RELATING TO MINING, AND THE DECISIONS THEREON.

BY THE EDITOR.

UNDER this head it is intended to give insertion to such papers as may be of general interest and importance, illustrative of the rules observed in the working of mines, or decisions on cases discussed in our Courts of Law and Equity. The practice of the Stannaries Courts, and the nature and principle of the cost-book system, will be found fully treated upon in another part of the present volume, while the important subjects connected with tin bounds, their antiquity, and the various authorities cited in the course of legal proceedings instituted from time to time, will be also found discussed in a luminous and comprehensive manner. We purpose in this place to confine ourselves mainly to three cases, Rogers v. Brenton, to which we shall append some observations bearing on the point at issue,-namely, the customs appertaining to the keeping up of tin bounds; that of Ricketts and Another v. Bennett and Another, being an action for the recovery from the defendants, as adventurers in a mine, of certain moneys advanced to the purser as their recognised agent; and further to the case of Harvey and Another v. Wyld, which was lately heard in the Court of Exchequer, and which latter involves an important question, as affects the Joint-Stock Companies' Winding-up Act. Indeed, it will be self-apparent in all these cases, that it is essentially necessary, for the security of the lord, the adventurer, the merchant or banker, and the purser or agent, that the law, as laid down by the judges, should be correctly stated and comprehended.

The necessity of some legislative measure, whereby the real nature and extent of the laws and customs, as applicable to mining pursuits, and the respective rights and obligations of one and the other party, may be clearly ascertained and regulated, is manifest, and cannot be considered otherwise than of the first importance in connection with our mining industry. The Stannaries Courts, the powers of which are confined to Cornwall and Devon, are fully capable of administering those laws and customs, when clearly ascertained, and additional powers may readily be obtained from the Legislature, if needed.

It is from the uncertainty and doubt at present attendant on them, that we find, in too many instances, the chances of success are relied upon by the ignorant, or those who, from want of

principle, would rather rely on such uncertainty than act in strict accordance with truth and justice.

That some such course will be taken by Government, in concurrence with the general opinion of the county, we cannot for a moment entertain a doubt; while, in giving publicity to cases like the present, and in drawing attention to the subject, we consider our pages calculated to promote the general object of amelioration.

ROGERS v. BRENTON.

Among the various customs applying to the working of mines, that of tin bounding is one of the earliest known to the law of this country, and we may also observe that it is the latest to which attention has been directed in our Courts. A brief review of the case Rogers v. Brenton will enable our readers to appreciate the importance of the points involved in it, and the urgent necessity of some legislative or other measure, to ascertain and settle existing interests, so that no further litigation may arise. In the case under notice, the plaintiff claimed certain tin-grounds as bounder," or as

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owner of a pair of tin bounds," called Ruby Bounds, by virtue of the well-known custom of Cornwall. The cause was tried before Mr. Justice Wightman, at the Middlesex Sittings after Trinity Term, 1843, the venue having been altered from Cornwall to Middlesex, by a Judge's order, in November, 1841. On that occasion the jury found a general verdict for the plaintiff, subject to a motion for a nonsuit in the Court above, in case the Court should be of opinion that the custom was bad in law. The tin bounds were situate in the duchy manor of Helston, on the sale of which, in 1798, a right to all minerals was reserved to the duchy, but the plaintiff claimed the tin ore as executor and legatee of his father. The tin bounds had not been cut or pitched within living memory, nor was there any evidence as to the period of their commencement, although proof was given of the annual renewal of them for the last seventy years. Tin had been found and raised in small quantities by adventurers under the "boundowners," and the customary toll paid to the lord at various periods ranging over some forty or sixty years. The last receipt of toll from the Ruby Bounds was in 1823, about eighteen years previous to the commencement of the action. The defendant was the agent or captain of a company of adventurers who had been working for several years within or near the Ruby Bounds, but had only raised tin ore shortly before the action. They refused to pay any farm or dues to the plaintiff, or to recognise his title as bound-owner. It did not appear, however, under whom the company claimed, although it was subsequently stated, on the motion for a new trial, that the defendant really claimed under a set from Captain Crease, the late lessee of the duchy, by whom the action was, in fact, defended. The evidence produced by the plaintiff, in support of his claim, consisted of the roll of the Stannary Convocations or Parliaments, held 22 James I., 1 Charles I., 12 Charles I., 2 James II., and 26 George II., which last recited the Acts of the previous convocations. The commissions under which the convocations 2 James II. and 26 George II. were held, were also proved, none earlier having been found. These showed that the convocation professed to make new laws, as well as present old customs. A charter of 23 Henry VII. was also put in, which, among other things, recognised bounders (bundatores) as being the possessors of tin works (opera stanni) and their obligation to enter the description of newly "bounded " works in the Stannary Court. Certain extracts from the Court rolls of the stewards of the four stannaries in the reign of Henry VI., Henry VII.,

Elizabeth, and James I., were also read, to prove the early existence of tin bounds, or opera stannaria, proclamations of them in the Stannary Court, and presentments of the custom generally. Ministers' accounts rendered to the Crown by officers of the duchy were likewise produced, to show the receipt by the lord of the manor of "toll-tin " from tin-works, the toll-tin being explained to mean the customary dues payable to the freeholder out of bounded tin-mines. Leases by the Crown and duchy of "toll-tin" belonging to the duchy, and also of "tin-mines" in enclosed lands, were also proved, and other evidence adduced, with the view of showing the existence of bounded "tin-mines rendering toll to the lord of the manor. The parol evidence was given by mine-agents, solicitors, land-agents, and old "tollers," or persons employed to renew bounds and collect tolls; from whom it appeared that the custom prevailed in different parts of Cornwall, and that dues to a large amount had been paid to the owners of tin bounds, the customary toll to the landowner being one-fifteenth, which was occasionally varied by special agreement. They all agreed that, after being legally set on foot, the bounds could be preserved by mere annual renewal of the turfs or mounds at the corners, without working. Some of the wit. nesses doubted whether even this ceremony was strictly necessary, except as evidence of the right. Only one instance of newly-proclaimed bounds was recollected by any witness; all the wastes of the tin mining districts being supposed to have been already secured under ancient bounds. No evi dence was offered on the part of the defendant, but his counsel contended that the custom did not support the declaration; that it was bad unless it implied the necessity of working; that the documentary evidence was all consistent with a custom so qualified, and that the parol evidence was vague and self-contradictory. Mr. Justice Wightman, after commenting on the proofs, told the jury that it was for them to say, upon the evidence, whether the custom existed, in fact, without regard to its legality; that, if working was essential to the custom, they should find for the defendant, but if the custom was that bounds, duly proclaimed and renewed, gave an exclusive right to the tin, then they should find for the plaintiff. In the Michaelmas Term following, Sir W. W. Follett obtained a rule nisi to set aside the verdict and enter a nonsuit, on the ground that the alleged custom was not proved, the witnesses varying in their statements; some alleging that even annual renewal was unnecessary; that working was necessary in order to keep up the right; that the toll taken had varied; that there was no satisfactory evidence of any working by bound-owners, adversely to the landowner,-with other points, were raised by the learned counsel, which are not of sufficient general importance to require notice here; and that the custom, as claimed, was, at all events, bad in law, as being a custom to take a profit in the soil and freehold of another, undefined and unreasonable, and tending rather to prevent the working of mines than to encourage it. The case was argued on January 23rd, 1845, before Lord Denman, C. J., Judges Patteson, Coleridge, and Wightman; and on December 8th, 1845, before the Chief Justice, and Judges Patteson and Wightman. Messrs. Kelly, Smirke, and Montague Smith showed cause. They contended that the custom proved, and found by the jury, supported the verdict either on one or the other count. It was immaterial to the plaintiff whether his right was corporeal or incorporeal; the only question being whether the custom could be maintained in point of law. The learned counsel, in the course of the arguments used, commented on the cases which had been submitted to the Court, to show the custom to be unreasonable and void; while, in the case of mines worked under the custom in question, the owner of the land subjected to tin bounds was entitled to receive toll, generally one-fifteenth; a charge so considerable that few landowners would object to their mines being worked

on such terms. Until the recent abolition of the coinage duty, by stat. 1 & 2 Victoria, c. 120, the prince received jure ducatús a duty of 4s. per cwt. on all the tin smelted in Cornwall, which could not be exported from the county until it had been brought to be examined and stamped at certain coinage-halls appointed by him. The existence of this customary payment could be traced to the earliest period of which there was any public record. The right also of pre-emption of all tin in the county could be shown to have been exercised for centuries, and was upheld in the " case of the Stannaries," where it is expressly called a profit à prendre. Customs analogous to that of tin bounding also prevailed in other counties, the rights of the free miners of the Forest of Dean being recognised and regulated by stat. 1 & 2 Vict., c. 43. Those of the Derbyshire lead-mines also strongly resembled the Cornish custom, and would appear to be firmly established ever since an inquisition of 16 Edward I. The custom, as claimed in Cornwall, fulfilled all the three conditions of a good custom; for the party bound had a benefit, the party claiming was at some charge, and the usage might have a reasonable commencement. It had been before the Court in several cases cited by the learned counsel, and was admitted in its fullest extent in Vice v. Thomas, determined by the Lord Warden of the Stannaries, with the advice of five judicial members of the Privy Council. It had been contended that, although a custom to work mines in the land of another, which the owner will not work himself, may be sustained on public grounds, the custom as here asserted is to appropriate mines without any obligation to work at all; and that the custom in this form had no other operation than to change the property, without securing to the community any benefit from it. This, it was admitted, was the most plausible objection to the claim, but did not leave it without strong grounds of support. Cornwall had, for many centuries, been a constituent part of the realm, but its ancient relation to and connection with England was rather of Wales or Scotland, than of an English county. It probably had its own usages and laws, differing widely from the common law, of which its remarkable mining customs might be the vestiges. In Doe dem. Earl of Falmouth v. Alderson, Baron Parke treated the custom of bounding as one not governed by ordinary rules, but rather as a sort of common law of Cornwall." The custom proved to exist was unqualified, except by the condition of annual renewal. If this was not enough to support the custom, no tin bounds could be upheld as subsisting; for, although the whole of the wastrel of Cornwall is said to be under bounds, there are certainly none in which continuous working can be shown.

Sir Thomas Wilde, with whom were Messrs. Crowder and Butt, appeared on the other side, and argued that the custom, as proved, was uncertain and unreasonable; the usage ought to be clearly defined in order to establish a right of this kind, whereas here it was left in uncertainty as to the necessity of renewal, the times at which, if necessary, the renewal was to be made, the mode of bounding, and the extent of the bounds. There could be no doubt some custom did exist, and it might easily have originated in the willingness of a landowner to permit adventurers to work mines in his waste on payment of dues; but the custom now claimed was to turn up four corners in another man's land, including an area of any extent, thereby to divest the whole property in the tin-mines out of the landlord, without any reasonable security that he will ever be permitted to receive the dues, or the public derive any benefit from the transfers of property.

The cause stood over until Trinity Vacation, 1847, when Lord Denman, C. J., delivered the judgment of the Court, in the course of which be observed that the question in this case turned upon the validity of a custom, or local usage, which was represented as being a right to raise tin as a bounder, while, on the part of the defendant, it was contended that such a

custom could not exist in law, and consequently that the right laid in the declaration was not proved. The argument had proceeded on two grounds, the plaintiff contending that, first, considering it was a mere custom to be tried by the ordinary tests, it was not unreasonable; and secondly, that it was the local law of an extensive district, anterior in origin to the date when Cornwall became part of, and subject to, the general law of England; and that its effect was not to create merely an easement to be enjoyed in the land of another, but a tenement. His lordship proceeded to observe on the custom of bounds, and, supposing an obligation to work existed, admitted its reasonableness, as fulfilling every requisite of a good custom, in enabling a mine to be worked where the owner of the soil could not or would not do it for himself. But the real question was whether the customary right of bounding could exist without continuing bona fide to search for tin, and whether it was sufficient merely to renew the bounds annually by a new cutting the turfs as at the commencement. Assuming the validity of the custom, if the bona fide working be made, and that it is a custom which is to be tried by the tests established by the common law for ascertaining whether a custom be good or not, it appeared to his lordship that, without such qualification, it could not be sustained. Customs, especially where they derogate from the general rights of property, must be construed strictly, and above all things they must be reasonable, while "bounding" was a direct interference with the common-law rights of property, and the public interest might suffer from the bounder possessing himself of tin bounds, and neglecting or refusing to work the same, whereby the supply of the metal might be limited, and the price enhanced, at the same time that the lord derived no advantage from the working his mine, and was moreover precluded from carrying on operations, however anxious he might be to do so. The condition that the bounds should be annually renewed by cutting the turfs was useful for determining the limits, and also preserving evidence of ownership, but could not be held as a substitute for the working itself. After referring to the conflicting evidence given in the course of the hearing of the cause, his lordship observed, "We see every reason to believe that the unqualified right now claimed is but an abuse of the original limits of the custom, inconsistent in its object, and not to be sustained on any principle." The only remaining point made by the plaintiff was, "that bounding was not to be tried merely as a custom, limited in local extent, and as an exception to the general rules of common law, but as the local law of a distinct and extensive district, having its origin earlier than the time when Cornwall became part of England, or subject to its general laws. This point was argued with much learning and ingenuity by Mr. Smirke, but we think his argument failed in respect of such historical certainty of fact as is necessary to build any legal conclusions thereon; further, assuming that difficulty overcome, we think it failed on legal authority.' His lordship, in conclusion, observed that "the ground of inconvenience which might result from our decision in favour of the defendant was not much pressed in the argument before us; but we collect from the report that it appeared in evidence that tin bounds had for a considerable period been made the subject of conveyance, settlement, and devise; and it is possible, therefore, that inconvenience may result where there has been such a neglect of working as to forfeit the title to them. We have not been insensible to this, and have given it our consideration; but it has not appeared to us to warrant a change in our conclusion, which ought to rest on legal grounds only. If the inconvenience be so great as may be apprehended, it is better that it should be remedied by the legislature than be made a reason for our coming to a conclusion which those grounds will not warrant. We do not apprehend, however, any such inconvenience. Nothing we have said compels