during the term of five years, A. should pay or refund to B., either in cash or in the said shares, at and after the rate of 77. 10s. per annum for the portion of the term unexpired at the time of such eviction, and that A. should also indemnify B. against all loss and expense in maintaining possession: and it was further agreed that no abstract or investigation of title should be permitted or *722] required beyond evidence of the seisin and possession as owner by A. and his ancestors for twenty-one years and upwards last past; and that B. should immediately do and execute all acts necessary to transfer and vest the said seventy shares in A. It was held that the intention of the parties, to be collected from the language of the instrument, was, that it should take effect as a lease, and consequently that it was void as such by the 3d section of the 8 & 9 Vict. c. 106, not being by deed. [WILLES, J., referred to Tress v. Savage, 3 Ellis & B. 36 (E. C. L. R. vol. 77).] In Tooker v. Smith, 1 Hurlst. & N. 732, an agreement for a lease of a farm contained a stipulation that the tenancy should continue until after two years' notice to quit had been given. The tenant occupied the farm, and paid rent for some years, but no lease was executed. It being held that this instrument could not enure as a lease, the question arose whether it could operate as a tenancy from year to year upon the terms of the written instrument, one of which was that the land should be cultivated according to the four course system: and it was held that it might. [WILLES, J.-Do you contend that the defendants would not have been liable to an action upon this agreement, if they had by locking a gate prevented the bankrupt from getting at the cindertips?] Wood v. Lead bitter, 13 M. & W. 838, shows that they would not. [WILLIAMS, J., referred to Smith v. Neale, 2 C. B. N. S. 67 (E. C. L. R. vol. 89).] It might be that an action would lie against the testator for not having granted that which he professed to grant. But here it is assumed that there was a grant. If the contract could not by law pass the authority it professes to grant, the plea is a good answer to the declaration.

Gifford was not called upon to reply.

*ERLE, C. J.-I am of opinion that our judgment must be *723] for the plaintiffs. I have been unable to see any of the difficulties which some of my learned Brethren seem to have felt in reference to the authorities. It seems to me to be simply a question whether, where a party has entered into a valid contract, and has broken it, an action will lie for such breach. It does not need much authority to dispose of that question. The testator agreed with Lewis that Lewis might dig and carry away cinders from a certain cinder-tip, which is described as the property of the testator; and when Lewis, in pursu ance of the agreement, went to the place to exercise his right under the agreement, he was prevented from doing so. Suppose the place where the cinders were had been fenced round, and the gate giving access to it had been locked, and the agreement had been, that, in consideration of certain payments to be made by Lewis, the testator promised that the gate should be open so that Lewis might enter and take the cinders, it would be quite immaterial whether the gate was locked by the testator or by a third person. A man may if he pleases contract to sell another man's goods, or to do a thing which he can

not do; still, if he makes the contract or promise, he is liable for the breach of it. If this had been a contract for an interest in land, or a license for the exercise of some right on the land, I should have found it necessary to consider the authorities which have been referred to. But, if the testator, for a good consideration, has made a promise, and has broken it, an action clearly lies for that breach.

WILLIAMS, J.-I am of the same opinion. I do not mean to throw any doubt upon the cases which have been decided on this subject, or to say, that, supposing Hill had a right to grant Lewis permission to dig and carry away cinders from the cinder-tip, anything be[*724 yond a license to enter upon the land for the purpose of taking away the cinders would be conferred by the agreement. But I entirely agree with my Lord in the construction which he has put upon the instrument; and I think the declaration discloses a breach of it, for which an action will lie. It might be said that the plea amounts only to an allegation that Hill had no authority to make the grant, and that the plaintiffs might try the right by going and taking the cinders under the authority of Hill. But that view of the case is answered by the decisions which establish, that, in the case of a parol lease, he who lets agrees to give possession, and, if he fails to do so, the lessee may recover damages against him, and is not driven. to bring an ejectment. That was decided in Coe v. Clay, 5 Bingh. 440 (E. C. L. R. vol. 15), 3 M. & P. 57, and confirmed by Jinks v. Edwards, 11 Exch. 775.

WILLES, J.—I am of the same opinion. If this had been a parol agreement, a difficulty would have arisen, not with reference to the rule of law that a grant of an incorporeal hereditament ordinarily, but not always, must be under seal, but with reference to the Statute of Frauds. It would have been like an agreement for the purchase of a part of the natural fruits of the land, in which case it is held that the statute applies, but contrà of artificial fruits, which have been dealt with as chattels. It appears to me that in this case no difficulty at all arises with reference to the common-law rule as to the grant of an incorporeal hereditament, and for this reason, because the plaintiffs do not assert that they are entitled to any actual interest enabling Lewis to enter upon the land. They rely upon an agreement whereby the supposed owner of the cinders says that Lewis may dig and carry away the cinders, which *necessarily involves the right to enter for the purpose of doing [*725 so; as, if there were a grant of a tree or other natural fruit of the land, that would carry with it an irrevocable authority to enter upon the land for the purpose of cutting down and carrying away the tree. But that is not what the plaintiffs here rely on. What they rely on, is, an agreement that Lewis may dig and carry away the cinders. If that is to be construed to mean merely that the seller is not to interfere actively to prevent the purchaser from taking the cinders, there is an end of the matter: so, if this had been a mere license, without consideration. But this is an agreement, for a valuable consideration. The buyer in the first instance parts with 501.: therefore it is necessary to put upon the agreement a more extensive because a more reasonable construction, of which it is well susceptible. The seller agrees that the buyer shall have the article contracted for; and the

latter, through the default of the former, has been unable to obtain it, the seller having no title: and so the buyer has lost the profit he would have made and his 501. Had this been a case in which the plaintiffs alleged an irrevocable authority by reason of the contract for the sale of the cinders, there might have been a difficulty; because the sale was not, as in the cases to which we have been referred, a sale of a specific chattel lying upon the land of the seller, which would, as I conceive, give an irrevocable authority to the buyer to enter and take the thing: but, taking the declaration and the plea together, it was a right to take certain cinders constituting part of a heap which had become a portion of the soil. Such a right as that may come within, and does appear to me to come within, the law as contended for by Mr. Coleridge: and such a license as that would seem to be one which requires a grant,-like a license to work a mine. But, long before you arrive at that difficulty, the plaintiffs' case is *726] founded upon a contract, and the breach of it, not alleging any fixed interest in an incorporeal hereditament, but alleging that the vendee has not had that which he bargained for, and that by reason of a breach of contract on the part of the seller. For that breach an action may well lie.

KEATING, J.-I am of the same opinion. The declaration upon the face of it shows a contract which need not be under seal. It shows a contract whereby the testator for a good consideration agreed that the bankrupt should have liberty to dig and carry away the cinders; and it goes on to allege, that, by the testator's default, he was prevented from so doing. That is a perfectly good contract. And the demurrer must prevail. Judgment for the plaintiffs.

BARBER and Others v. THE NOTTINGHAM AND GRANTHAM RAILWAY AND CANAL COMPANY. Jan. 20.

By a canal act commissioners were appointed for "settling, determining, and adjusting" all questions, matters, and differences between the company and the owners of lands, &c., prejudiced by the execution of any of the powers thereby granted: and by a subsequent section the amount of compensation was to be assessed by a jury, and the commissioners were to give judgment for the sum so assessed, which was to be "binding and conclusive to all intents and purposes:"-Held, that the verdict and judgment were conclusive as to the amount, but not as to the claimant's right to compensation.

THIS was an action to recover the amount awarded by commissioners under a canal act, for damages sustained by an adjoining mineowner in consequence of the alleged improper construction of the company's reservoir.

The first count of the declaration stated, that, *whereas the *727] plaintiffs, before and at the time of the happening of the damage and injury thereinafter mentioned, were, and since had been and still were, the owners and occupiers of and interested in certain lands, coal-mines, and hereditaments situate in the parish of Greasly, in the county of Nottingham, known as High Park Colliery, and near to a reservoir situate in the parish aforesaid, in the county aforesaid, and which said reservoir had been theretofore made and was at the time of the said damage and injury maintained under and by virtue of the

provisions of an act of parliament made and passed in the 32d year of the reign of His late Majesty, King George the Third (32 G. 2, c. c.), intituled "An act for making and maintaining a navigable canal. from the Cromford Canal, in the county of Nottingham, to or near to the town of Nottingham, and to the river Trent, near Nottingham Trent Bridge, and also certain collateral cuts therein described from the said intended canal;" and the plaintiffs therefore, to wit, the 20th of December, 1862, by the consideration and judgment of commissioners for the time being for the purposes in the said act mentioned, having jurisdiction in that behalf, and such application and all such proceedings necessary in that behalf having been duly had and taken, recovered against the defendants, by virtue of the said act and of "The Ambergate, Nottingham, and Boston, and Eastern Junction Railway Act, 1846" (9 & 10 Vict. c. clv.), and of "The Nottingham and Grantham Railway and Canal Act, 1860" (23 & 24 Vict. c. xxxvi.), the sum of 49921. 3s. 10d., the same being the amount of the recompense duly and in all respects conformably to the said act inquired of, assessed, and ascertained as the recompense to be made to the plaintiffs by the defendants for damage sustained by the making and maintaining of the said reservoir, and for *damage sustained by the flowing, leaking, and [*728 oozing of the water of the said reservoir over and through the banks of the same into and upon the said lands, mines, and hereditaments, and by reason of the execution by the defendants of the powers in the said first-mentioned act contained: Breach, that, although all things had been done and had happened, and all times had elapsed necessary to entitle the plaintiffs to maintain this action, and although the verdict of the said jury in the premises, and the said judgment, being the judgment thereupon duly pronounced by the said commissioners, were respectively duly signed by the said commissioners, and transmitted to the clerk of the peace for the county of Nottingham by the said commissioners, the defendants had not paid the said sum of 49927. 3s. 10d., or any part thereof, to the plaintiffs, and the same sum was still due and in arrear and unpaid, contrary to the said statutes.

The second count stated that, after the said verdict and judgment had been respectively given as in the first count mentioned, and after the said verdict so given as in the said first count mentioned had been given, as the fact was and is, for more money as a recompense for the said damage in the said first count mentioned so done as in the said first count mentioned to the said lands, mines, and hereditaments of the plaintiffs than had been previously offered by or on behalf of the defendants, the said commissioners duly, in accordance with the provisions of the said act in that behalf, settled the expenses, by them according to the said act in such case to be settled, at 3721. 1s. 8d., to be defrayed by the defendants, whereof the defendants had all due and proper notice; and, though all things were done and happened, and all times elapsed, and conditions were fulfilled, necessary to entitle the plaintiffs to main

tain this action, yet the defendants *had not defrayed the said [*729

expenses, or any part thereof. Claim 6000%.

Third plea,-as to the whole of the declaration,-that the said damage in the first count mentioned to have been sustained was not sustained by the making or maintaining of the said reservoir, or by the owing, lei. or oozing of the water of the said reservoir over or

through the banks of the same, or by reason of the execution by the defendants of the powers in the said first-mentioned act contained, within the meaning of the 35th section of the said statute, whereby the said commissioners had not jurisdiction under the said act to assess the said damage or to settle the said expenses.

Fourth plea, as to the whole of the declaration,-that the said alleged damages were caused by the flowing, leaking, and oozing of the said water of the said reservoir through certain beds and strata of stone and minerals which formed the natural sides and bottom of the said reservoir, and which were not part of the artificial banks of the same, and that the same were not caused in any other manner whatsoever, or, except as aforesaid, by the making or maintaining of the said reservoir, or by reason of the execution by the said canal company or the defendants of the powers in the said first-mentioned act contained; that it was not proved at the holding of the said inquisition, or found by the jury, that the said flowing, leaking, and oozing of the said water arose or happened by or through the act or default of the defendants or of the canal company mentioned in the said first-mentioned act; and that the fact was and is that the same arose and happened without any such act or default, and was caused by the acts of the plaintiffs themselves, in sinking certain shafts and pits in their said land and coal-mines, and so causing large quantities of water *730] which naturally lay and were contained in the underground beds and strata and stone and minerals in which the said shafts and pits were sunk, and which beds and strata were situate between the said shafts and pits and the said reservoir, and formed the natural sides and bottom thereof, to flow, leak, and ooze, without the default or knowledge of the defendants or of the said canal company, from and out of the said reservoir through the said natural sides and bottom thereof, and to percolate into and through the said beds and strata and into the said shafts, pits, and mines.

The plaintiffs demurred to the third and fourth pleas, the ground of demurrer stated in the margin being, "that it appears upon the record that the defendants are estopped by the judgment in the first count mentioned from averring the several matters alleged in the third and fourth pleas." Joinder.

The plaintiffs also replied to the third and fourth pleas, that the defendants ought not to be admitted or received against the said record in the first count mentioned to plead the said pleas, because the plaintiff's said that a jury duly summoned and impannelled according to the provisions of the said 35th section did duly and according to the said provisions inquire of, assess, and ascertain the said recompense; and that the said commissioners, being the commissioners for settling, determining, and adjusting all questions, matters, and differences arising between the defendants and the plaintiffs as such proprietors of and interested in the said lands in the first count mentioned, as in and by the said act of parliament provided, duly and according to the provisions of the said act gave the said judgment for the said recompense in the first count mentioned, as therein mentioned; and that the matters and things in the third and fourth pleas alleged *731] were before and at the time of the said application and proceedings, verdict, and judgment, questions and matters in difference