208; Nickerson v. Howard, 19 Johns., 113: Griffin v. Potter, 14 Wend., 209: Guilderland v. Knox, 5 Cowen, 531.

A master to whom an apprentice was bound died, and the apprentice continued to live with and work for his widow, both believing that they were bound by the provisions of the indenture of apprenticeship. Held, that these facts did not necessarily prove a contract by the widow to fulfil the stipulations of the indenture, and the apprentice, if so found, might recover of the widow the value of his services: Hennessy v. Deland, 110 Mass., 145.

But see Ford v. McVey, 55 Ills., 119; Williams v. Hutchinson, 3 N. Y., 312; Conger v. Van Aernum, 43 Barb., 602. A surviving partner is bound, by the covenant of himself and his deceased partner, to teach an apprentice a particular business until the end of the term for which he was apprenticed:

Connell v. Owen, 4 U. C. Com. Pl., 113.

The declaration claimed damages by reason of defendant's son, who was bound to plaintiffs under articles of apprenticeship, absenting himself. Pleas 1st. Non est factum: 2d. That before breach of the covenant plaintiffs dissolved partnership. Upon demurrer, held bad, for not showing that the apprentice was bound to the plaintiffs as partners, and that by a dissolution it would render the service impossible, and thereby cancel the obligation: Modelande. Maguire, 12 U. C. Com. Pl., 407.

See Popham v. Jones, 13 C. B., 225, 76 Eng. C. L.

Where an apprentice is bound to a master to learn a particular trade, an abandonment of the business by the master is an answer to his action for the servant absenting himself: Ellen v. Topp, 6 Exch., 424.

1591

[5 Queen's Bench Division, 159.]
Feb. 20, 1880.

*GILL V. DICKINSON.

Mines and Minerals-Right to let down Surface without making Compensation-Custom-Inclosure Act.

To a statement of claim for working mines under the plaintiff's land without leaving a sufficient support for the surface, the defendant pleaded in his statement of defence that he was the lessee of the mines from the lord of the manor; that the plaintiff's land had, previously to the passing of an Inclosure Act under which the waste of the manor was inclosed and allotted, formed part of such waste; that the lord of the manor from time immemorial had been accustomed to work the mines under the waste without leaving sufficient support for the surface, and without making any compensation for injury so caused; that by the Inclosure Act it was provided that the lord of the manor, his successors or assigns, might hold all mines and quarries lying under the waste together with liberty of searching for, winning, and working the same as fully and freely as he or they might have had and enjoyed the same in case the act had not been passed, and that without making or paying any satisfaetion for so doing; and that it was further provided by the act that compensation for damage caused to any person's allotment by such working of the mines should be assessed by a justice of the peace, and should, when so assessed, be paid by the occupiers of the other allotments in the same township:

Held, that the statement of defence was good, on the ground that, whether any valid custom such as alleged in the statement of defence existed previously to the act or not, the act expressly gave to the lord of the manor and his assigns the right to let down the surface by mining without making any compensation. Blackett v. Bradley (31 L. J. (Q.B.), 65,) not followed.

STATEMENT OF CLAIM complained that the defendant wrongfully worked certain coal mines under the plaintiff's

land without leaving proper or sufficient support for the said land of the plaintiff.

Statement of defence alleged as follows, viz., that the plaintiff's land was situated in the manor of Wolsingham, and until the passing of a certain Inclosure Act of the 31st year of George 2, formed part of the waste of the manor, and that the Bishop of Durham, in right of his see, was lord of the manor, and entitled to the soil of the waste and the mines thereunder, certain other persons being entitled to a right of common upon the waste. It further alleged that from time immemorial up to the passing of the Inclosure Act the bishop had been accustomed to work the mines without paying any satisfaction for injury caused by such working, and that since the act he had continued to work the *mines in the same manner. It was further alleged [160 that the waste of the manor was inclosed and allotted by an award made under the Inclosure Act, which act provided as follows, viz., that the Lord Bishop of Durham, his successors and assigns, should and might from time to time, and at all times thereafter, have, hold, and enjoy all mines and quarries lying under the waste, together with liberty of searching for, winning, and working the said mines and quarries as fully and freely as he or they might or could liave had and enjoyed the same in case the act had not been made, and that without making or paying any satisfaction for so doing. It was further provided that if any person or persons should suffer damage in his, her, or their allotment by the searching for, winning, and working of the mines. and quarries, compensation might be assessed by a justice of the peace, and such compensation should be paid and borne by the occupiers of the several other allotments in the same township in which the allotment damaged should be situated. It was further alleged that the defendant was the lessee of mines under the plaintiff's land from the lord of the manor, and that the trespasses complained of were done in pursuance of the powers of working mines under the waste reserved to the lord of the manor, his successors, and assigns by the Inclosure Act (').

Demurrer.

Gainsford Bruce, for the plaintiff, supported the demurrer: The decision in the case of Blackett v. Bradley () is directly in point. The very same Inclosure Act was there (1) It has been thought sufficient to Blackett v. Bradley, 31 L. J. (Q.B.), 65, give only the substance of the material and the main reason for reporting this provisions of the Inclosure Act, inasmuch case is that it practically reverses the deas the provisions of the same Inclosure cision in the former case. Act are very fully set out in the case of

(*) 31 L. J. (Q.B.), 65,

discussed, and a plea precisely similar to the statement of defence in this case was held bad on the ground that the alleged custom was bad. [He also cited Hilton v. Earl Granville ().]

[MANISTY, J., referred to Aspden v. Seddon (") and Hext v. "Gill (3).]

1611 Herschell, Q.C., for the defendant: The decision in Blackett v. Bradley() seems to have proceeded on the assumption that that case was undistinguishable from Hilton v. Earl Granville ('). It was expressly admitted by the defendant's counsel that this was so. It is contended that this was a mistaken view. The distinction was not pointed out between an alleged custom to mine without leaving support for the surface in respect of all the tenements of the manor and a custom of the same description confined only to the waste of the manor. The former custom might be bad as being unreasonable, but it does not follow that a custom to mine under the waste without leaving support would be bad. If such a custom could have a legal origin, a legal origin ought to be presumed. Such a custom might be created by express agreement. Whatever right the lord might have by agreement or reservation he can have by custom. It follows that the decision in Hilton v. Earl Granville (') did not govern the case of Blackett v. Bradley ('), and that case cannot be regarded as a binding authority. Hilton v. Earl Granville (') itself cannot be considered good law since. Rowbotham v. Wilson (). Again, whether such a right as claimed by the lord of the manor could independently of the Inclosure Act have been good, the provisions of the Inclosure Act expressly give the lord this right. No reference seems to have been made to the terms of the Inclosure Act in the case of Blackett v. Bradley ().

Gainsford Bruce, in reply: The provisions of the Inclosure Act only aim at the reservation of existing rights. It never was intended to create such a right if it did not previously exist.

Lusi, J.: If I could see that the attention of the court had been directed in the case of Blackett v. Bradley (*) to the distinction between that case and Hilton v. Earl Granville ('), and to the provisions of the Inclosure Act, I should feel myself bound to follow the decision in that case. But it is clear that the court proceeded on the admission that the decision in Hilton v. Earl Granville (') did govern the

(1) 5 Q. B., 701.

(*) Law Rep., 10 Ch., 394; 12 Eng. R., 773. (3) Law Rep., 7 Ch., 699; 3 Eng. R., 574.

(4) 31 L. J. (Q.B.), 65.
(5) 8 H. L. C., 348.

case, and moreover the attention of the court does not seem to have been called to the effect of the words of the [162 Inclosure Act expressly giving the lord the right to let down the surface without making compensation. It appears to me that, whether well founded originally or not, this right is expressly legalized by the act. The allottees take their allotments subject to the conditions imposed by the act, and among them to the condition that the lord of the manor may work the mines without leaving sufficient support, and without making compensation. Furthermore, the act expressly provides for compensation from a different source, namely, from contributions to be levied upon the other allotments in the same township. Under these circumstances I do not feel myself bound by Blackett v. Bradley ('), and it seems to me that this statement of defence is good upon the correct construction of the Inclosure Act.

MANISTY, J.: I am of the same opinion, and for the same reasons. Lawfully or unlawfully, the lord of the manor had from time immemorial worked the mines without leaving support, and without making compensation. Thereupon by the Inclosure Act a parliamentary contract is made. It is in my opinion just as if the same provision had been contained in a deed made between the lord and all the tenants of the manor. The bargain is that if certain waste lands are inclosed and allotted, the lord shall have the right of mining as he had theretofore done under such lands without leaving support and without making compensation. No doubt if the words were ambiguous the presumption would be against the existence of such a right without compensation, but when you find that there is an express provision that the lord shall not be liable to make compensation, and for compensation from another source, there appears no longer any room for doubt as to the meaning of the act. I think for these reasons our judgment should be for the defendant. Judgment for the defendant. Gregory, Rowcliffe & Co., for

Solicitors for plaintiff: Robinson.

Solicitors for defendant: Ridsdale, Craddock & Ridsdale, for Watsons.

1880

Capper v. Wallace.

party who was not required to do so built a wall, but not the one called for by the contract. Held, he could not call upon the other for contribution. The fact that he has built a wall, for the expense of which he cannot call for

contribution, does not relieve him from his obligation to pay for the other things which were to be done at his expense: Scott v. Sanford, 46 N. Y. Superior Ct. R., 544.

1631

[5 Queen's Bench Division, 163.]
Feb. 24, 1880.

*CAPPER & Co. v. WALLACE BROTHERS. Ship-Charterparty-Place of Discharge-“So near thereto as she may safely get.

By the terms of a charterparty the ship was to take in a full cargo at Bombay, and proceed therewith to a safe port on the continent between Havre and Hamburg as ordered, "or so near thereto as she might safely get." The cargo was to be brought to and taken from alongside at merchant's risk and expense. The ship was ordered by the charterers to Koogerpolder in Holland. Koogerpolder is some distance up a canal, and the vessel with her full cargo on board drew too much water to proceed up the canal. No arrangements had been made by the charterers or consignees for taking delivery of any part of the cargo at the mouth of the canal. The portion of the cargo that required to be unloaded in order to enable the vessel to enter the canal was at least a third. The question arising under these circumstances between the shipowners and the charterers which of them ought to bear the expenses of lightering the cargo from the mouth of the canal to Koogerpolder:

Held, that, under the circumstances, the voyage under the charterparty ended at the mouth of the canal, and that consequently the charterers ought to bear the above-mentioned expenses.

Meaning of the words "as near thereto as she may safely get " discussed.

SPECIAL CASE. The action was brought by shipowners against charterers to recover certain expenses incurred in the carriage of cargo from Nieuwediep, at the mouth of the North Holland Canal, to Koogerpolder.

The facts sufficiently appear from the judgment.

Feb. 20. Herschell, Q.C. (A. L. Smith, with him), for the plaintiffs: The question intended to be raised is on whom the expense of taking on the cargo to Koogerpolder ought to fall. This depends on whether the voyage came to an end at the mouth of the canal or not. The meaning of the charterparty is that the ship is to get as near to the port of discharge as she can safely get as a loaded vessel: Nelson v. Dahl ('); Shield v. Wilkins (†).

The claim is for £184, which represents the expense of lightering part of the cargo and taking the ship on with the 164] residue to *Koogerpolder. It is found that it would have cost only £167 to have lightered the whole cargo to Koogerpolder. It is not contended that the shipowners can be entitled to more than the latter sum.

(1) 12 Ch. D., 568.

(2) 5 Ex., 304; 19 L. J. (Ex.), 238.