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Review: Bainbridge's Law of Mines and Minerals.

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A Treatise on the Law of Mines and Minerals. By WILLIAM BAINBRIDGE, Esq., F.G.S., Barristerat-law. London: Butterworths. 1856. pp. 709. THE law of minerals is of great importance in these islands, and we welcome Mr. Bainbridge's second edition as a valuable contribution to our law libraries. The learned author observes in his preface that;

"It may justly excite surprise that, before the first publication of this work, there should have been no attempt to examine and discuss the important and interesting questions which have arisen on the subject of mines, and to reduce them to the form of a regular treatise. The subject had, indeed, received so little attention, that there hardly existed any epitome of the law respecting it in the general and elaborate books of legal reference; yet there was no country which more demanded this research. In other countries, the prerogative of the state had asserted the general right to the mines, and the ruling power was thus enabled to propound useful and comprehensive codes of laws for their development and pursuit, not only with reference to the lands in which the minerals were found, but also to the rights exacted from neighbouring proprietors. In this country the right of the Crown was limited to mines of gold and silver. Several local customs had indeed established some extensive privileges in favour of miners, and appear to sanction some larger original royal rights. But in modern times the mines of the realm have belonged to private owners, whose powers, however absolute in other respects, have been strictly confined within their own domain. This right of proprietorship, subject to all the abstruse and complicated laws of devolution and enjoyment incident to real property, and the great division of lands among numerous owners, have produced many corresponding impediments to the prosecution of mining, and have brought the miner into constant collision with the recognised rights of others. It is, therefore, not to be wondered that the searches of the author should have sometimes resembled, both in their character and result, the occupations of which he designed to treat, and that, like the miner, he was often compelled to traverse the labyrinths of darkness before emerging to the light of day. It might be expected that a subject which has experienced in actual practice so rapid and so comparatively recent an extension, should not stand settled by express decision with respect to many important topics. The strict conclusion of law, therefore, must often be arrived at after a process, not only of research, but of reflection. The principle of decision must, like the mineral, not only be extracted from obscurity, but it must be carefully separated from all extraneous dross, and be produced in a pure


condition, before it can be properly applied to the purposes of its attainment. An author may often still complain, with the adventurer, that the substance does not repay the cost of production, and that he must be guided by the general principles of law, or the dim light of analogy. In such cases, the author has endeavoured to elicit the true law, as well from the stores of past experience as from a more improved jurisprudence; and he has not hesitated to discuss freely the dicta and decisions of judges, many of which have been made in times when mining questions, as has been confessed by later judges, were only imperfectly understood."

This is truly and admirably expressed. The work comprises

1. The Definition of Minerals and the manner of acquiring them.

2. The Right of Property in Minerals.

Royal Mines.

4. The Right to Work Mines.

5. Rights of Way and Water, and other Mining rights.

6. The Transfer of Mines.

7. The Sale of Mines and Shares, including Specific Performance.

8. Leases and Licences.

9. The Right to grant Leases. 10. Partnerships in Mines.

11. The Injuries resulting from Mining operations. 12. The Rating of Mines and Quarries.

13. The Remedies relating to Mines and Minerals. 14. The Coal Trade.

15. Local Customs.

The present edition contains much new matter relating to the rights of way, water, and incorporeal rights, manorial rights, partnerships, the construction of leases, undermining, inundations, barriers, and working out of bounds.

The appendix comprises-1st, Precedents in Conveyancing; 2nd, Local Customs; 3rd, Glossary of English Mining Terms.

As an example of Mr. Bainbridge's method of treating the subjects of his treatise, we extract his "Definitions of Minerals," and the manner of acquiring them :—

"A mineral has been defined to be a fossil, or what is dug out of the earth. The term may, however, in the most enlarged sense, be described as comprising all the substances which now form, or which once formed, part of the solid body of the earth, both external and internal, and which are now destitute of, and incapable of, supporting animal or vegetable life. In this view, it will embrace as well the bare granite of the high mountain as the deepest hidden diamonds and metallic ores.* In deeds and other documents the term may be explained in its larger or restricted sense, according to the intention.†

These various productions are differently found: in small nests, bunches, or isolated deposits; in large irregular masses; in detached fragments; in alluvial and fluvial streams; in lodes or veins; and in a regular course of stratification.

* Earl of Rosse v. Wainman, 14 M. and W., 859; 2 Exch. 800; 15 L. J. Exch. 67.

† Davvell v. Roper, 24 L. J.. N. S., C. C. 779.


Law of Attorneys and Solicitors.

"A mineral lode or vein is a flattened mass of metallic or earthy matter differing materially in its nature from the rocks or strata in which it occurs. Its breadth varies from a few inches to several feet, and it extends in length to a considerable distance, but often with great irregularity of course. It is usually perpendicular, or nearly so, in its position, and descends, in most cases, to an unknown depth. Sometimes the sides are parallel, and sometimes they recede from each other, so as to form large accumulations, or, as they are called, bellies of mineral matter, and occasionally they approach each other so as almost, if not wholly, to cause the vein to disappear. Veins also traverse each other, and smaller ones ramify or spring out from the larger.

"Ore is a term applied to certain minerals when in their natural condition.

"There are two common modes of working for minerals quarrying and mining, and this distinction will be afterwards shown to be of some importance.

"A quarry is an open excavation where the works are visible at the surface. A mine is formed by the penetration of the surface, without exposure of the works to the light of day, by means of pits, shafts, levels, or tunnels. This distinction does not, of course, depend upon the nature of the material, but simply upon the mode of working. We are to look entirely to the mode in which the article is obtained, and not into chemical or geological character.†

"It is inaccurate to say that a mine is unopened. The mine is not the substance, it is only the mode of getting the substance. A vein or a stratum may be unopened, but there can be no mine if there is no opening. This expression will, however, be used in its familiar signification, and the word mine will often be taken as synonymous with the mineral sub


"All minerals which are unworked and unsevered are parts of the freehold, and, as such, constitute landed property or real estate. In this condition, they will be subject to the general rules which govern the enjoyment of real property. When severed from the freehold, they become mere personal chattels."



Ir appeared that in Michaelmas Term, 1849, Mr. Edmund Garbett, then an attorney residing and carrying on business at Dawley, Shropshire, was struck off the roll of this court at the instance of the defendant in a cause of Harcourt v. Dickson, on the ground that, being the attorney in the cause, he had procured the plaintiff to make, and himself joined in making, an affidavit as to payments made to witnesses for their expenses, which he knew to be false. He was subsequently, at the instance of the Incorporated Law Society, struck off the rolls of the other common law courts, and of the Court of Chancery.

* Rex v. Sedgeley, 2 Barn. and Ad. 65; Rex v. Dunsford,

4 N. and M. 349; 1 Har. and Woll. 93.

† Rex v. Brettell, 3 Barn. and Ad. 424.

Astry v. Ballard, 2 Mod. 193; Co. Litt. 54 b.

It also appeared that Mr. Garbett had been compelled by Lord Denman to answer certain questions which were put to him as a witness in a cause, and upon his answers thereto he was committed for trial, and convicted on May 15, 1847, of forging an acceptance to a bill of exchange. Upon the argument, however, before the Court of Criminal Appeal, the majority of the judges held that he had been improperly convicted, inasmuch as the confession of his guilt was unduly extorted from him, and he in consequence received a free pardon. This fact was not brought before the court in 1849 under the advice of the late Mr. Fred. Robinson, who was of opinion that as the Court of Appeal had decided the conviction to have been improper, and Mr. Garbett had received her Majesty's pardon, it would not be right, by a collateral proceeding, to deprive him of the benefit of the court's judgment and the Crown's clemency.

Upon a motion (May 22, 1856) for a rule nisi to restore Mr. Garbett to the roll, Jervis, C. J., said:

"I am of opinion that there is no pretence for this application It is not now sought to strike Mr. Garbett off the roll of attorneys of this court, or to suspend him from practising as an attorney, for any alleged malpractice or misconduct. But the question is whether, he having already been removed from the roll for an offence of the most grave and serious character, we ought to be called upon to restore him, and so to invest him with a power and authority which, in my opinion, would make him a most dangerous individual. It appears, that in the year 1847 he was tried and found guilty of forgery, and that he afterwards received a free pardon, because a portion of the evidence which led to his conviction consisted of admissions made by him under circumstances that, in the opinion of the Court of Appeal, rendered them legally inadmissible. But notwithstanding that conviction was quashed, and notwithstanding the pardon accorded to him in consequence, there was abundant evidence to show that Garbett really was guilty of the crime laid to his charge. Are we, under these circumstances, now to say that this person is one to whom we can safely and properly give authority to practise as an attorney of this court? We start with the knowledge, derived from the best possible source-viz., his own confession, that he has been guilty of forgery; and this court has adjudged him guilty of perjury and subornation of perjury for the fraudulent purpose of putting into his own pocket money to which he was not justly entitled. This, therefore, is an application for re-admission of a person confessedly guilty of forgery, and adjudged to be guilty of perjury; and the main ground of the application is that he has already, by being seven years off the roll, suffered

*There was an affidavit of Mr. Garbett, stating how he had supported himself and family since his removal from the roll, and that he had ever since conducted himself with strict honour and integrity, and professing to explain some of the grounds upon which the charge against him had rested. There were also affidavits and memorials signed by a great many persons (to the number of about 150), consisting of magistrates, barristers, solicitors, merchants, and others, who professed some of them to have known him upwards of twenty-five years, and which testified to the general correctness of his conduct, and vouched him as being in their judgment a fit and proper person to be restored

to the roll.

Law University.-Law of Costs.—Analytical Digest of Cases: Privy Council Appeals. 293

punishment enough for his delinquency. It seems to me that we should be guilty of the greatest possible dereliction of our duty if we were to re-admit a man so tainted with crimes, which of all others are the most calculated to engender suspicion and distrust. Another ground upon which we have been strongly, almost pathetically, urged to deal mercifully with Mr. Garbett, is that he has a wife and family dependent upon him for support, and that these will be the principal sufferers from the failure of this motion. That, undoubtedly, is a circumstance which we cannot but regard with the deepest commiseration and regret. But, at the same time, it must be observed that a wife and family have always been considered as guarantees to society that a man will conduct himself with honour and integrity in his dealings with the world; and we must not lose sight of the fact that, in permitting ourselves to be influenced by considerations of that sort to extend mercy to Mr. Garbett, we should be running the risk of doing the greatest possible injury and injustice to the public. Upon the whole, giving its due weight to all that has been urged on his behalf, I think I should be almost as criminal as the applicant himself if I were to yield to this application. The rule must be discharged."

Williams, J., added: "I am entirely of the same opinion. We are asked to re-admit as an attorney on the roll of this court a person who it is evident was deservedly removed from it for one of the greatest offences of which, as an officer of the court, he could be guilty. I think we could not with decency do such an act of grace, even if the offence for which Mr. Garbett was struck off the roll was the only offence of which he had been guilty. But we are also asked to shut our eyes to the fact that this man had previously been guilty of forgery. Now, it is clear to my mind that Mr. Garbett was convicted of forgery upon evidence which ought not to have been received, and therefore that that conviction was properly quashed. But it is equally clear that he was guilty of that crime. I therefore agree with my Lord in thinking that we should be guilty of a very gross dereliction of our duty if, by replacing this man upon the roll of attorneys, we were to put him in a position to exert his talents to the possible detriment of the public."

Willes, J., concurred.

In re Garbett, 18 Com. B. 403.



IN the debate in the House of Commons on the 25th July relating to the results of the session, then about to close, Mr. Napier said that two years ago, upon a motion of his, a commission was appointed to inquire into the condition of the inns of court The Vice-Chancellor Wood, Mr. Justice Coleridge, and other eminent persons were members of that commission, which laboured long and arduously. They inquired into the state of legal education in other countries, they took evidence, and agreed unanimously to a report which he believed had obtained the concurrence of the most enlightened members of the profession. But nothing had been done upon this report, and great dissatisfaction prevailed in consequence. He trusted that before next session the Government would give their attention to the subject, with a view to carry into effect the recommendation of the commissioners. He believed it would be necessary that a charter should be granted to constitute a legal university of the inns of courts.

Now we submit that a university of the inns of court, confined to members of the bar, would be an absurdity, inasmuch as the education would comprise only the science of the law, and be limited to one branch of the profession. As well might there be a "University of Physicians." We conceive that a College of Barristers, like the College of Doctors; and a College of Attorneys, like the College of Surgeons, would be the proper form of incorporation.



The Master of the Rolls in the case of Gover v. Stilwell, 21 Beav. 182, said that an inflexible rule, adopted by him, on petitions for the transfer of funds to a petitioner standing to his separate account, and in which no other person was interested, was, not to order a taxation of the costs, but to allow £10 to the solicitor for the costs, without taxation.



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2. In forma pauperis-Security for costs in Court below. An appellant who had not sued as a pauper in the Court below, admitted by the Judicial Committee to appeal in formâ pauperis, upon the usual certificate, without giving security for the costs already incurred, and in which she had been condemned by the decree of the Court below.-Watts v. Beaman, 9 Moore, P. C. 81.

Case cited in the judgment: Lait v. Bailey, 7 Moore,
P. C. 436.

3. Restored after dismissal for want of prosecution— Calcutta.-Appeal restored after being dismissed for want of effectual prosecution within the time limited by the fifth rule of the Order in Council of the 13th of


Analytical Digest of Cases: Priry Council Appeals.

June, 1853; the new rules having been only recently adopted by the Sudder Court at Calcutta and the appellant in ignorance of their existence, being engaged in taking steps to prosecute the appeal within the time and according to the practice previously existing.-Gudadhur Purshad Tewarree v. Moosumat Soonderkoomaree, 9 Moore, P. C. 86.

4. Award of Governor in Council-Jurisdiction of Judicial Committee.-An act of the Legislature of India, No. 18 of 1848, empowered the Governor in Council of Bombay to administer the private estate of the late Nawab of Surat, and it was by section 2 enacted "that no act of the said Governor of Bombay in Council in respect of the administration to, and distribution of, such property, from the date of the death of the said Nawab should be liable to be questioned in any court of law or equity." No provision was made for an appeal from the Governor's decision. In pursuance of the power conferred by this act the government agent at Surat, to whom the matter was referred made an award distributing the estate in certain shares, among the heirs of the deceased, which award was confirmed by the Governor

in Council.

Upon an application by a claimant dissatisfied with the award to the Judicial Committee for leave to appeal from the Governor in Council's confirmation of the award: Held, that the award was not such a judicial act as to come within the operation of of sec. 3 of the stat. 3 & 4 Will. 4, c. 41, or the 7 & 8 Vict. c. 69, and could not be entertained by the Judicial Committee without a special reference to them by the Crown, under sect. 4 of the stat. 3 & 4 Will. 4. c. 41.-In re Nawab of Surat, 9 Moore,

P. C. 88.

5. Barbadoes-Appealable value-Royal Instructions-Costs.-The royal instructions regulating appeals from Barbadoes to the Queen in Council limit the right of appeal to cases in which the subject matter involved amounts to £300.

The Court at Barbadoes held that certain accounts and documents sought to be recovered in an action of detinue were of no value in themselves and refused leave to appeal against a judgment of nonsuit in the action. Upon a petition for leave to appeal founded upon an allegation that the value of the accounts and securities exceeded £300 their lordships granted special leave to appeal. When the appeal came on for hearing it appeared that the allegation as to the value of the accounts and documents was unfounded in fact and unsupported by evidence, upon which their lordships stopped the case and dismissed the appeal with costs.-Wilson v. Callender, 9 Moore, P. C. 100.


See Consideration Money.


Where receipt acknowledged in deed-Indorsement -Custom of Canada.-Semble, where the receipt of the consideration money is acknowledged in the body of the deed, it is not the custom in Canada to have an additional acknowledgment endorsed on the deed. —Barnhart v. Greenshields, 9 Moore, P. C. 19.


1. Of opposers on abandoned petition for extension of letters patent.-Affidavit of merits.—The Judicial Committee will exercise a discretion as to the allowance of an opposer's costs upon an abandoned petition for extension of letters patent.

A gross sum allowed for costs of opposers instead of referring their costs to taxation.

An affidavit of merits by the petitioner upon the question of costs, rejected, as no copy had been served upon the opposers.—In re Milner's Patent, 9 Moore, P. C. 39.

2. Of opponents to elongation of letters patentAllowance of gross sum for.-Where there were two opponents to an application for a prolongation of a patent upon substantially the same grounds of objection the Judicial Committee, upon a successful opposition, allowed a gross sum for the costs of both parties.

Opponents' costs directed to be taxed at £100, and divided between the opponents.--In re Jones's Patent, 9 Moore, P. C. 41.

And see Appeal, 5; Prize of War.


Dutch Roman Law-British Guiana-Ciril action by husband.-A civil action for recovery of damages against a defendant for criminal conversation with the plaintiff's wife, lies by the Dutch law prevailing in British Guiana, and is recognised by the ordinances of the colony Nos. 19 and 29 of 1846.

A plea of exception "Tibi adversus me non competit hæc actio" to such action rejected by the Supreme Court at British Guiana. Such judgment affirmed on appeal by the Judicial Committee.--Norton v. Spooner, 9 Moore, P. C. 103.


See Consideration Money.


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See Crim. Con.

FOREIGN BILL OF EXCHANGE. Presentment-Reasonable time Discharge of drawers.—A foreign bill of exchange payable after sight must be presented for acceptance; and although there is no limited time defined by statute for presentment and no usage of trade to fix the time, yet such bill must be presented within a reasonable time.

What constitutes. a reasonable time is a mixed question of law and fact for the determination of the court and the jury.

A bill of exchange was drawn at Calcutta on the 16th of February, 1848, by L. R. and Co. on D. &

Analytical Digest of Cases: Privy Council Appeals.

Co. at Hong Kong, payable sixty days after sight, and endorsed by L. R. and Co. to M. or order. M. in consequence of the depressed state of the money market at Calcutta, and the unsaleableness of bills on China at that time at Calcutta kept the bill for five months and nine days, and then sold it to R. M., who did not present it for acceptance at Hong Kong till the 24th of October in that year, when D. and Co. refused to accept it.

Held, 1st, that the presentation of the bill for acceptance was not made within a reasonable time, and that L. R. and Co., the drawers, were discharged.

2nd. That the want of presentment was not excused by reason of the drawers continuing solvent from the date of the bill to the presentment, or that no actual damage was caused to them by the delay.-Ramchurn Mullick v. Lachmeechund Radakissen, 9 Moore, P. C.

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1. Jurisdiction of Judicial Committee-Recalling warrant for sealing-Alien-Laches.-The Judicial Committee have, under the 4th sect. of the 3 & 4 Will. 4, c. 41, jurisdiction to entertain a petition, referred to them by the Crown, seeking to revoke an order in council made upon their recommendation, upon an application by patentees for a prolongation of letters patent under the stat. 5 and 6 Will. 4, e83, and to recal the warrant for sealing such letters patent.

The Crown can at any time before the great seal is affixed, upon a proper case being made out, countermand the warrant for sealing.

An alien resident abroad who was interested in an

English patent by a foreign inventor, and who had also considerable dealings in this country in respect of sales of the patented machine, and in granting licences for the use of such patent, held, in the circumstances, to have such a locus standi as to entitle him to petition the crown to revoke an order in council for granting an extended term of an English patent, and to recal the warrant for sealing such patent.

Whether an alien living abroad, without such interest, could inform the Crown by petition as to any matters touching letters patent. Quære?


Patentees applied under the stat. 5 & 6 Will. 4, c. 83, for an extension of the term of letters patent, and the Judicial Committee recommended a prolongation for six years, which recommendation was confirmed by the Crown by an order in council, and a warrant issued for sealing the letters patent. No step was taken by the patentees to procure the sealing of the new letters patent, and after a delay of nearly three years a party interested in opposing the renewal, petitioned the Crown to revoke the order in council and the warrant to seal. It did not appear that the petitioner or the public had suffered any loss by the laches of the patentees. The Judicial Committee to whom the petition was referred considered the laches not of sufficient magnitude to deprive the patentees of all benefit of the renewed patent; but made it a condition, before dismissing the petition, that the patentees should pay the petitioner a gross sum for costs, and give an undertaking not to prosecute for any infringement which might have occurred from the date of the order in council to the date of dismissal of the petition.

Quare. Whether an action would lie in consequence of an infringement under such circumstances?-In re Schlumberger, 9 Moore, P. C. 1.

2. Foreign importation-Application for prolongation after expiration of foreign patent.—Sec. 25 of the 15 & 16 Vic. c. 83, enacts "that no letters patent for or in respect of an invention for which any such patent or like privileges shall have been obtained in any foreign country, and which shall be granted in the United Kingdom, from the expiration of the term for which such letters patent or privilege was granted or was in force, shall be of any validity." The 16 & 17 Vic. c. 115, s. 7, declared and enacted that new letters patent granted by way of prolongation should be granted according to the provisions of the 15 & 16 Vic. c. 83.

Application was made under the 5 & 6 Will. 4, c. 83, and 2 & 3 Vict. c. 69, by the assignees of a patentee for extension of an English patent for a foreign importation patented in France. At the date of the application the French patent had expired. Held, dismissing the petition, that as the foreign patent had expired, no renewed grant would be valid by section 25 of the 15 & 16 Vic. c. 83, as s. 7 of the 16 & 17 Vic. c. 113, made an extended patent a new patent, within the provisions of s. 25 of the 15 & 16 Vic. c. 83. In re Aube's patent, 9 Moore, P. C. 43. And see Costs, 1, 2.

See Appeal, 2.



See Foreign Bill of Exchange.


Neutral-Breach of blockade-Restitution-Costs and damages.-Restitution of a ship seized as a prize may be attended according to the circumstances of the case with any one of the following consequences:

1st. The claimants may be ordered to pay to the captors their costs and expences.

2nd. The restitution may be simple restitution, without costs or expenses, or damages to either party, or,

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