will dated the 21st of October, 1842, gave and devised the hereditaments and premises hereinafter conveyed (inter alia) to the said John Eden (then and therein called John Methold) and the said J. D. Shafto and their heirs, to the uses and upon the trusts thereinafter declared, viz. to the use that his wife, C. D. Shafto, should receive thereout a rent-charge or annuity of 13007.; and, subject thereto, to the use of the said John Eden and J. D. Shafto, their executors, administrators, and assigns, for the term of 2000 years, upon the trusts thereinafter declared, and which in no way affect these presents; and, from and immediately after the determination thereof, to the use of the said R. D. Shafto, party hereto, and his assigns, for his natural life, [*81 without impeachment for waste; with remainder to the use of trustees therein described, their heirs and assigns, during the life of the said R. D. Shafto, upon trust to preserve contingent remainders; with remainder to the use of the first and every other the sons of the said R. D. Shafto lawfully to be begotten, one after another, as they should be in priority of birth, and the heirs of their bodies respectively issuing, with divers remainders over: And the said testator by his said will declared that it should be lawful for the said John Eden (therein called John Methold) and J. D. Shafto, with the consent and approbation of such of his children or grandchildren, or other the person who by virtue of the uses and limitations therein contained and herein before partly recited should be entitled to the first estate of freehold or inheritance in possession of and in the manors, hereditaments, and premises herein before devised, or any part thereof respectively, such child or children, grandchild or grandchildren, or other person as aforesaid, being then of the full age of twenty-one years, such consent or approbation to be signified by any writing or writings under the hand and seal of the person or persons whose consent was thereby made requisite, and to be attested by two or more credible witnesses, absolutely to sell and dispose of all or any part of the said manors, hereditaments, and premises (other than and excepting his capital messuage at Whitworth aforesaid, with the appurtenances thereunto belonging, and the lands and grounds usually held and enjoyed by him the said testator along with the same capital messuage), unto any person or persons whomsoever, either together. or in parcels, for such price or prices as to the said John Eden (therein called John Methold) and J. D. Shafto should seem reason[*82 able, and upon payment of the purchase-money to sign and give proper receipts for the same, which should be sufficient discharges to the purchaser or purchasers for the money therein expressed to have been received, and such purchaser or purchasers shall not afterwards be answerable or accountable for any loss, misapplication, or non-application thereof: And it was declared that the premises so sold should be for ever freed and discharged from all and every the uses, estates, trusts, limitations, powers, and provisoes therein declared: And whereas the said testator died on or about the 19th of January, 1848, leaving the said R. D. Shafto (party hereto), his eldest son, and tenant-for-life of the manors, hereditaments, and premises devised by the said recited will, and who has long since attained the age of twenty-one years: And whereas the said John Eden has long since the death of the said testator, by Royal license and authority, assumed

*

the surname of Eden in lieu of the surname of Methold: And whereas the said John Eden and J. D. Shafto contracted and agreed with the said R. Robinson for the absolute sale to him of the piece or par cel of ground hereinafter more particularly described and intended to be hereby conveyed, and the fee-simple thereof in possession, for the price or sum of 2257., which said piece or parcel of ground forms portion of the lands and hereditaments devised by the said recited will of the said R. E. D. Shafto, but no portion of the lands and grounds usually held and occupied by the said R. E. D. Shafto along with the said capital messuage at Whitworth aforesaid: Now, this indenture witnesseth, that, in pursuance of the said agreement, and in consideration of the sum of 2251. sterling this day paid by the said R. Robinson to the said John Eden and J. D. Shafto, the receipt whereof is hereby by them respectively *83] *acknowledged, they the said John Eden and J. D. Shafto, in exercise of the power and authority so given to them by the said recited will as aforesaid, do and each of them doth (with the consent and approbation of the said R. D. Shafto, testified by his being party to and signing and sealing these presents, such signature and sealing being attested by two witnesses) grant, release, and convey unto the said R. Robinson and his heirs all that piece or parcel of ground situate at or near to the village of Spennymoor, in the county of Durham, containing in length from east to west 330 feet or thereabouts, and in breadth from north to south 42 feet or thereabouts, and containing in the whole 1540 square yards or thereabouts, and which said piece or parcel of ground is bounded on or towards the east and north by land belonging to the vendors, on or towards the west by land belonging to G. Beedall, and on or towards the south by George Street, together with the rights, members, and appurtenances thereunto belonging, &c.; except and always reserved out of these presents all and every the seam or seams of coal and other minerals under the said hereditaments hereby granted, with power to win, work, and carry away the same under or over any part of the said hereditaments and premises, the said R. D. Shafto, or the person or persons for the time being entitled thereto, and his and their assigns, paying to the said R. Robinson, his heirs and assigns, reasonable compensation for any damage which he or they may sustain thereby,-To have and to hold the same unto the said R. Robinson, his heirs and assigns, to the use of the said R. Robinson, his heirs and assigns, for ever: And the said R. Robinson hereby declares that no woman who shall become his widow shall be entitled to dower out of the said hereditaments and

premises: And each of them the said John Eden and *J. D.

*84] Shafto, so far only as relates to his own acts and deeds, hereby

for himself, his heirs, executors, and administrators, covenants with the said R. Robinson, his heirs and assigns, that they respectively have not done or permitted any act or thing whatsoever whereby the said hereditaments and premises intended to be hereby conveyed, or the title thereto, can, shall, or may be encumbered or prejudicially affected in any way howsoever: And the said R. D. Shafto hereby, for himself, his heirs, executors, and administrators, covenants with the said R. Robinson, his heirs and assigns, that, notwithstanding any act done by him the said R. D. Shafto, or the said R. E. D. Shafto, deceased,

to the contrary, they the said John Eden and J. D. Shafto, or one of them, now have in themselves, or has in himself, good right, full power, and lawful and absolute authority by these presents to grant and release the said hereditaments and premises to the uses and in the manner aforesaid, according to the true intent and meaning of these presents [Covenants for further assurance, for production of title deeds, &c.]: And that free from all encumbrances whatsoever created or occasioned by him the said R. D. Shafto or any of his ancestors or testators, or any other person whomsoever rightfully claiming under him or them: And the said R. Robinson, for himself, his heirs and assigns, hereby covenants with the said R. D. Shafto and his assigns and the person or persons who for the time being shall be entitled under the limitations contained in the hereinbefore in part recited will of the said R. D. Shafto to an estate of freehold in the said Whitworth estate, and his and their assigns, that the said hereditaments and premises hereby conveyed, or any buildings now or hereafter to be erected thereon, shall not at any time hereafter be used for the manufacture, sale, or storing of any combustible *matter, or for the [*85 purposes of any offensive trade or business, the side walls to be not less than than 18 feet high, and to be in uniformity with the street, the windows to be 4 feet wide and 5 feet 6 inches in height; and further, that he or they will as soon as conveniently may be here. after make and for ever hereafter maintain on the piece or parcel of ground intended to be hereby conveyed in the front of the dwellinghouse or shop now or hereafter to be built thereon, a footway or pathway to be open at all times for the passage of all persons on foot, such footway or pathway to be of the width of 4 feet at the least, and will at his or their own expense cause the same to be flagged and keep such flagging at all times hereafter in good repair and free from all obstructions whatsoever, which said pathway shall be made uniformly to suit the general fall in the street, and will pay his proportion of the costs and expenses of draining, sweeping, or otherwise cleaning the street or streets, or intended street or streets in which the premises hereby conveyed, and erections now or hereafter to be built thereon, shall be situate, and shall erect boundary walls not less than 7 feet in height, and shall not put out windows to overlook the adjoining properties. In witness," &c. Averment, that after the making of the said deed, and while the estate and interest thereby conveyed to the said R. Robinson continued to be and remained vested in him by virtue of the said deed, certain messuages and dwelling-houses, to wit, Nos. 101, 102, 103, and 104, George Street, Spennymoor, were erected and built on the said piece of ground so conveyed to him; and afterwards and while the said estate and interest so continued to be and remained vested in him by virtue of the said deed, he, by deed between him and W. Oliver, dated the 12th of May, 1857, granted, released, and *conveyed unto the said W. Oliver and his heirs, all the said [*86 four messuages and dwelling-houses so as aforesaid erected upon the said piece of ground, together with all and singular his estate, right, title, &c., of, in, or to the same, to hold the same and all the premises thereinbefore in the said deed described and expressed to be thereby conveyed, with their appurtenances, unto and to the use of the said W. Oliver, his heirs and assigns, for ever: That afterwards,

and while the same estate and interest conveyed by the said lastmentioned deed to the said W. Oliver continued to be and remained vested in him by virtue of the premises, the said W. Oliver, by deed between him and the plaintiff, dated the 13th of May, 1857, granted, released, and conveyed the said messuages and dwelling-houses, with the yards, out-offices, and conveniences thereto belonging, to the plaintiff and his heirs, to hold the same to the use of the plaintiff, his heirs and assigns, for ever: That, before the making of the herein first named and above set forth deed, the said R. E. D. Shafto, by deed dated the 12th of September, 1844, between him of the one part and T. Brown and W. C. Gillan of the other part, granted, demised, and leased unto the said T. Brown and W. C. Gillan, their executors, administrators, and assigns, a colliery and coal-mines and seams of coal, as well opened as not opened, including and comprising all seams of coal extending, reaching, or being under the said piece of ground and the said four messuages and dwelling-houses so as aforesaid conveyed to the plaintiff, with full power to the said T. Brown and W. C. Gillan, their executors, administrators, and assigns, to win, work, and carry away the said seams of coal, for a term of years not yet expired: That, after the making of the said last deed of conveyance by the said W. Oliver to him the plaintiff, and while the same *estate and *87] interest thereby conveyed to him the plaintiff of and in the said messuages and dwelling-houses continued to be vested in him the plaintiff in possession by virtue of the said deed, and before this action, the said messuages and dwelling-houses were injured and damaged, and the plaintiff sustained damage thereto, by [such] winning, working, and carrying away, to wit, by the said lessees of the said R. E. D. Shafto, or his assigns (a) of seams and parts of seams of coal, which seams extended, reached, and were under the said piece of ground above mentioned, and which sustained and supported the said piece of ground and the said messuages and dwelling-houses: That, by such winning, working, and carrying away, the foundations of the said messuages and dwelling-houses were weakened, cracked, injured, and caused to subside and sway, and to be dilapidated and less fit for habitation and uninhabitable, and the plaintiff lost the rents and profits which otherwise he would have derived from the said messuages and dwelling-houses, and the same have, by reason of the premises, been diminished in value and rendered worthless, whereof the defendant had notice: And that, although plaintiff had done all things, and all things had happened, and all times had elapsed, to entitle the plaintiff to maintain this action, and to be compensated by the defendant for the damage aforesaid: Yet that no compensation had been paid to the plaintiff for the said damages.

The defendant demurred to this declaration; the ground of demurrer stated in the margin being, "that the defendant is not liable under the covenant to pay compensation for the damage alleged in the declaration; and that the defendant is not shown in the declaration to have done such damage." Joinder.

*88] *Sixth plea, to the first count, so far as it relates to the cause of action in the said first count mentioned in respect to the winning and working therein alleged, and so far as the same relates to the (a) Struck out on argument: vide post, p. 95.

injury and damage occasioned and sustained thereby, and as to the compensation for the same, and as to so much of the said first count as charges the defendant with not having paid such compensation,that such winning and working was not done in pursuance of or under and by virtue of the indenture in the declaration alleged to have been made by the said R. E. D. Shafto, dated September 12th, 1844, or under and by virtue or in pursuance of any of the powers or authorities therein contained, and was not done by the defendant or by any person by his authority or direction, or for whose act or acts he was or is responsible.

The plaintiff demurred to the sixth plea, on the ground that it raised an immaterial issue. Joinder.

Seventh plea, as to so much of the first count as relates to the damage and injury done to the part of the said piece of ground on which the said messuages and dwelling-houses were erected and built and stood, and to the said messuages and dwelling-houses, and to the compensation claimed by the plaintiff in respect thereof,-that such damage and injury were occasioned by reason of the said messuages and dwellinghouses having been so erected thereon.

The plaintiff demurred to the seventh plea; the ground of demurrer stated in the margin being "that the compensation clause in the deed. of 1857 extends to houses built afterwards; and that the plea does not show that but for the working of the mines the damage would not have occurred." Joinder.

[*89

Manisty. Q. C. (with whom was T. E. Chitty), for the *plaintiff.(a)--[WILLIAMS, J.-The defence set up is twofold,-first, that the acts complained of were authorized by the lease,-secondly,, that the injury was occasioned by the building of the houses.] It appears from the declaration, that the testator, on the 12th of September, 1844, granted a lease of the minerals under the land in question to persons named Brown and Gillan; that he died in 1848, having by his will devised his estate to trustees to the use of the defendant for life, with remainders over, with a power of sale in the trustees, with the consent of the person for the time being entitled to the fee; that, in February, 1857, the trustees, with the consent of the defendant, under the power, conveyed the piece of land in question to Robinson in fee, for building purposes, reserving the mines and minerals, "with power to win, work, and carry away the same under or over any part of the said hereditaments and premises," the defendant, or the person or persons for the time being entitled thereto, and his and their assigns, paying to Robinson, his heirs and assigns, compensation for any damage which he or they might sustain thereby; and that Robinson

(a) The points marked for argument on the part of the plaintiff were as follows:"1. That the first count is good, and fixes the defendant with liability under the compensation clause for the damage done to the plaintiff's houses by the working of the mines,-2. That the sixth plea raises immaterial issues,-3. That the covenant is absolute to pay for damage by the working of the mines, by whomsoever worked,-4. That the question whether the mines were worked under the defendant's authority is irrelevant,-5. That the sixth plea is not saved by the allegations of matter of law contained in it,-6. That the seventh plea raises an immaterial issue,-7. That the compensation clause extends to damage to houses built after the date of the deed,-8. That the eighth plea admits the damage by working the mines, and the alleged occasion of the damage is immaterial."