sect. 514 of the Merchant Shipping Act that this bill is filed; and, in my opinion, the plaintiffs fail in their contention, and their liability extends to, and is measured by, the sum of 151. per ton on the register of the vessel, The Edith Mary, and I will make a declaration to that effect. Note for reference-Mau. & Pol. on Ship. 49. Re THE BRIGHTON CLUB AND NORFOLK HOTEL COм- Company-Winding up-Disputed account-Bona fides. company. In June, 1864, the petitioner Mr. Reynolds entered into a contract with the company for the erection of certain buildings, for the sum of 68251. The contract provided that no moneys should be payable to the contractor, except upon the certificate of the architect, and made other provisions for the execution of the works. In July, 1864, and subsequently, the architect complained from time to time of the way in which the works were being executed; and in November he declined to grant any certificate, on the ground that he could not certify that the work was done to his satisfaction. The company accordingly refused to make any further payments on account. On the 27th February, 1865, Mr. Reynolds served at the registered office of the company a formal demand for payment of the balance due to him, namely, 43587. 11s. 3d. At the expiration of the week he filed this petition to wind up the company. The claim was disputed bonâ fide by the company; but it was manifest that, upon taking the accounts, more than 50l. would be found due to the petitioner. Selwyn, Q. C., and Swanston, in support of the petition, contended that the case came within the 79th and 80th sections of the Winding-up Act. The peti- | tion ought not to be dismissed, but should stand over to see if the petitioner was a creditor of the company. (Re The Rhydydefed Colliery Company, 3 De G. & J. 80). Jessel, Q. C., and Romilly, for the company, were not called upon. this belongs, in the case of Bliss v. Smith (not reported), which was a bill by a contractor against his employer for an account of what was due to him, on the footing of the contract between the parties. L considering that case I came to the conclusion that this Court could not entertain such a suit, unless the architect withheld his certificate, by collusion and fran! for the purpose of injuring the contractor; and that the contractor's remedy was by action at law. The cases of Hotham v. The East India Company (1 T. R. 638); Ambrose v. The Dunmow Union (9 Beav. 5 and Kirk v. The Bromley Union (2 Ph. 640), establish this principle. There are three cases which appear to go to th contrary. Waring v. The Manchester, Sheffield, er Lincolnshire Railway Company (7 Hare, 482) came upon demurrer, fraudulent collusion being express alleged by the bill, and admitted by the demurrer. In Scott v. The Corporation of Liverpool (3 De G. & J 349) fraud was also alleged in the bill, and admit” 1 by demurrer, and thereupon the demurrer was over ruled. Both these cases, however, were dismiss i upon the hearing, the charge of collusion not having been substantiated. The only case in which such a bill has been suc cessful is M'Intosh v. The Great Western Railway Co-pany (2 De G. & S. 758 ; 2 De G. & J. 349; 3 Sm. & G 146), where it was held, that, having regard to the peculiar circumstances of the case, and the diffienly of taking the accounts at law, it was a proper case fr the interference of a court of equity. But what would have been thought in that case if proceedings had been taken under the Winding-up Act, to wind up the Great Western Railway Company, on the ground that something was due to the plaintiff upon a contested account? The evidence in this case satisfies me that there is a contested account between the petitioner and the company; and probably there is something due to the petitioner on the balance of accounts. If I made an order for winding up the company, I must stay the proceedings upon payment of the debt; and d the company offered to pay what is due to the psitioner, how is the amount to be ascertained? I am asked to do that which I have no jurisdiction to do, under pressure of an act of Parliament fr winding up insolvent companies. The petition mast be dismissed, with costs; but, of course, without prejudice to the petitioner bringing any action at law. Note for reference-Shelf. Joint-stock Co. Act, 99. VICE-CHANCELLOR KINDERSLEY'S COURT. Trustee Relief Act—Costs. The Trustee Relief Act, by enabling a trustee to para trust fund into court, does not deprive him of the righ file a bill to be relieved from the trusteeship, and he will on case made, be allowed his costs of such bill as betweca solicitor and client. Sir J. ROMILLY, M. R.—This is a novel expedient to try whether the Court can, under cover of the Winding-up Act, exercise a jurisdiction which otherwise it would not possess. If I were to accede to the application of the petitioner, very serious consequences might result. I understand the meaning of the 80th section of the Companies Act, 1862, to be this, that if a company owes a debt exceeding 501., which is not bonâ fide contested, the Court may exercise its jurisdiction, and direct the company to be wound up. It is not sufficient for the company to say that they contest the debt; they must shew reasonable grounds for doing so. There are numerous cases in which a company really owes a debt of ascertained and fixed amount; but it alleges that the debt is contested, The plaintiff Robert Barker was the last surviving merely because it is unable to pay. To such a case trustee of a voluntary settlement, dated the 14th Athe Court would hold the provisions of the Winding-gust, 1827, whereby Mary Piele, then Mary Bill, setta! up Act to apply. But in this case there is a bonâ fide a sum of 16667. 13s. 4d. stock, upon certain trusts, far contested account between the petitioner and the her own benefit until her marriage, and after her mar company; the petitioner claiming a large amount from riage for her separate use for life, without power of the company, and the company admitting only a small anticipation, and after her death, upon trust for the sum, but exceeding 501., to be due. This is not a case benefit of any husband she might leave for his life, intended to be met by the provisions of the Winding-until his bankruptcy, and after his decease or bankup Act. ruptcy, upon certain trusts for her children; and in I had lately to consider the class of cases to which case no child attained a vested interest, with a general power of appointment to the settlor, and in default, for her next of kin. Various appointments, by way of mortgage of the trust fund, were made by Mary Bill, and considerable litigation, to which the plaintiff was a party, took place, in the course of which Mary Bill and her mortgagees unsuccessfully sought to set aside the settlement. In April, 1835, Mary Bill became insolvent, and her assignees filed a bill against the plaintiff and others, for the purpose of obtaining a transfer to the assignees of the trust fund, which bill was dismissed, with costs. The assignees in 1844 purported to appoint the trust fund, and in 1845 a new trustee of the settlement was appointed, and the original trustees were required to transfer the fund to the new trustees jointly with themselves. This they declined to do, and another suit was commenced, but subsequently abandoned. In 1853 Mary Bill married, and her husband died in 1861. In 1862 the plaintiff, being then the sole surviving trustee, was again applied to to transfer the fund, and thereupon filed the present bill, alleging that, in consequence of the annoyance he had been subjected to, the repeated litigation, the complication of the trust, and the conficting claims to the fund, upon which a distringas had been placed by the mortgagee, he, the plaintiff, was desirous of being discharged. The bill prayed that the plaintiff might be discharged upon passing his accounts (he submitting to pass the same and to transfer the fund); that the trusts of the settlement might be administered by the Court; that some fit persons might be appointed trustees, and the plaintiff indemnified and allowed his costs, charges, and expenses out of the fund. Glasse, Q. C., and Swanston, for the plaintiff.-Under the old practice before 1847, when the Trustee Relief Act was passed, it is clear that the Court would have given the plaintiff the relief he asks. That act was not intended to curtail, but to enlarge, the remedies of trustees. A fortiori, therefore, the Court would now, upon a sufficient case made, give a trustee a complete discharge, according to the prayer of the bill. The plaintiff could not, by paying the money into court, have obtained full relief, as he would have still remained a trustee. He was entitled to his costs as between solicitor and client. [They cited Coventry v. Coventry (1 Kee. 758); Gardener v. Downes (22 Beav. 395); and Forshaw v. Higginson (20 Beav. 485).] Osborne, Q. C., and W. H. Terrell, for Mary Piele; and Baily, Q. C., Archibald Smith, Owen, and M Naghbn for other defendants, contended that the plaintiff, being a trustee with an ascertained sum in his hands claimed by opposite parties, should not have put his restais que trust to the expense of a suit, but should have simply paid the money into court; and, having adopted the former course, ought only to be allowed such an amount of costs as, upon a liberal scale, would equal the amount which would have been incurred by adopting the latter course. [They referred to Wells 7. Malbon (31 Beav. 48; 8 Jur., N. S., 249) and Lewin on Trusts, 435, last ed.] Sir R. T. KINDERSLEY, V. C.-Several suits have from time to time been instituted, with reference to the trust fund in the case, to which suits the plaintiff was a necessary party. As to the ascertainment of the trust fund, no question has arisen; that has been known from the beginning; the disputes arose repecting the rights of the parties, and I think I may Low say that they are not the same as were originally he objects of this settlement. There is no doubt that the plaintiff, who is now getting old, has been subected for many years to a great deal of litigation and rouble-an amply sufficient reason for his wishing to be discharged from the trust. Previously to the year 1847, when the Trustee Relief Act (10 & 11 Vict. c. 96) was passed, it would have been a clear case for a trustee to file a bill, offering to bring the fund into court, and asking the Court for a discharge, as the plaintiff did in the present instance. That being so, does that statute deprive the plaintiff of the right? The contention upon the other side is, that the plaintiff ought to have paid the money into court; and that, although by so doing he would still remain a trustee, that would not signify, as he would be a trustee of a fund as to which he was discharged from all liability. Now, though the plaintiff, by merely paying the trust fund into court, would be discharged from liability, he would still remain a trustee, and as long as he remained a trustee, he must be a party to every proceeding, whether by petition or otherwise. What, then, is he to do? Wells v. Malbon (31 Beav. 48; 8 Jur., N. S., 249) was cited as deciding that a trustee could not be discharged upon bill filed; but on looking at that case, the trustee did not ask to be discharged; and the Master of the Rolls refers to the fact, that he only wished to be relieved from responsibility. Therefore, that case does not touch this question. I cannot conceive that the Legislature could have intended, by the Trustee Relief Act, to deprive a trustee of the right to come to this court, and ask to be relieved from the trusts. In this case the circumstances are such, that the plaintiff has a right to be completely discharged, and to have his costs of the suit as between solicitor and client. Notes for reference-Lewin on Trusts, 435, 4th ed.; Wells v. Malbon (31 Beav. 48; 8 Jur., N. S., 249). BELL v. WILSON.-May 8 and 9. Vendor and purchaser-Construction-Exception of mines and minerals-Freestone-Evidence. Upon an exception from a grant of farm lands in fee of mines and seams of coal, and other mines, metals, or minerals," there being strata of freestone under part of the lands, it appearing that freeseone was always worked by quarrying in the locality, and that to work in this way would be the entire destruction of the land:-Held, that those entitled to the benefit of the exception were not entitled to work the freestone in any way. The construction of such exceptions must be dependent on the intention of the parties, each case resting on its special circumstances. Plaintiff's in a suit having omitted to support their bill by a formal affidavit, and one of the defendants, on whom interrogatories were not filed, not putting in any answer, the case against him rested on the fact of his position as lessee of the freestone, and evidence connecting him with certain acts " in the pleadings mentioned:"—Held, that in the absence of any denial by this defendant of the plaintiffs' case, the Court would grant the injunction against him upon evidence thus implied. Cause. The question in this suit was upon the construction of a clause in a deed of conveyance in fee of two farms in Northumberland, whereby mines and minerals were excepted from the grant. The lands in question, which formed part of Billingworth Moor, were, in 1801, sold to R. Bell, under a decree of this Court. The plaintiff E. Bell derived title through the purchaser, as tenant for life, to her separate use. The defendants Wilson were successors and privies to the original vendor, in whose favour the mines and minerals had been reserved. The defendant Simpson was their lessee. At the date of the sale the property consisted of farm lands, underlying which there were beds of coal, which had since been worked by the defendants Wilson, by virtue of the reservation. Immediately over the coal there was a seam of sandstone, varying from six to forty feet below the surface, and from thirtysix to seventy feet thick; while there was another bed of sandstone under the coal. The deed of conveyance, amongst other recitals, recited the certificate of the Master, which stated the proposal made on the part of the intending purchaser, and that "the vendor reserved the royalty of both the farms specified in the particulars" of sale. The exception of mines and minerals in the operative part of the deed was as follows: 66 Excepting nevertheless (inter alia) all mines and seams of coal, and other mines, metals, or minerals, as well opened as not opened, within and under the said closes or parcels of ground thereby granted and released, with full liberty to search for, dig, bore, sink, win, work, lead, and carry away the same, and to dig, bore, sink, win, work, and make pit and pits, trench and trenches, groove and grooves, and to drive and make drifts, drains, levels, staples, watergates and watercourses of any kind, in, over, under, through, or along all or any part of the said closes or parcels of ground, with sufficient ground room and heap room, and to erect fire engines and other buildings, and to exercise, do, and perform every liberty, matter, and thing necessary for digging, sinking, winning, and working the said collieries, mines, and minerals, and freeway, leave, and passage to and from the said collieries, mines, and minerals, in, through, and over the same closes or parcels of grounds, or any of them, or any part thereof respectively, with agents, workmen, horses, waggon carts, and carriages; with liberty to make all such waggon ways and other ways as shall be necessary and convenient for that purpose, and according to the usage or custom of the country, paying a reasonable satisfaction for all damage or spoil of ground to be occasioned thereby." Under this reservation the defendant Wilson claimed to be entitled not only to the coal under the property but also to the freestone; and to have a right to work this in any way upon payment of compensation, or at any rate to work it by underground workings. relating to a part of this moor, " quarries" are, among reserved rights, specified, as well as "mines." Apart from authority, these words, taken in their general popular sense, no less than in the sense given to them by local custom, will not include freestone; it is a rule to construe such an exception most strongly against the grantor. T. Stevens, for the defendant Wilson.-First, this is not a proper case for exercise of the jurisdiction of this Court. There had been acts of trespass for which an action would lie in a court of law. The bill was not filed till six months after these acts. No interlocu tory injunction had been applied for. This was now the hearing of the cause two years later, and the mischief had been continuing. It is true the Court has jurisdiction to prevent destruction of the subject, and where the legal remedy was inadequate, in a case of immediate irreparable damage; but that is not the case here. The cases on nuisance are analogous. Suri v. Great Northern Railway (9 Jur., N. S., 1196) distinguishes Lowndes v. Bettle (10 Jur., N. S., 226.) [Sir R. T. Kindersley, V. C.-Is there any case where this Court has declined to proceed simply on the ground that an injunction might be obtained under the Common-law Procedure Act?] So, also, in The North Union Railing Company v. The Bolton and Preston Railway Comporyis Railw. Cas. 345); Elmhirst v. Spruen (2 Mac. & G. 45); and Temple v. The London and Birmingham Railey Company (1 Railw. Cas. 120). Secondly, it is not ne cessary to shew all that is included under "minerals." On authority, freestone is included. (Lord Rosse v. Wainman). "Mines" are defined in Jac. Law Dictionary. [Sir R. T. Kindersley, V. C., referred to Wharton's Law Dictionary :-" Mines.-If it is to get minerals, it is a 'mine;' if to get stone, a 'quarry.'"] Robinson, for the defendant Simpson.-Robson's affidavit is merely an identification of time, not a statement of fact. If Simpson had not worked, and Robson knew this, yet no indictment for perjury would lie against the latter upon this affidavit. The Court would not allow this defect to be supplied at the hearing. A lease was accordingly granted to the defendant Baily, Q. C., in reply.-None of the cases cited deSimpson, and he had begun to open a quarry for the cide generally that "minerals" include "stone;" you stone, by removing a considerable portion of the sur-must look to the circumstances; if there was a failure face soil in one of the plaintiffs' fields. It appeared that there was no instance of getting freestone by underground workings throughout the county of Northumberland, and that the stone was not valuable enough to make such a mode of getting it re munerative. The bill prayed an injunction against all the defendants, an account of stone gotten, and assessment of damages. The statements in the bill were not proved, paragraph by paragraph, by a formal affidavit, and no interrogatories were served upon the defendant Simpson; and, as against him, the case rested upon the indirect proof of the allegations in the bill furnished by an affidavit of Robson speaking to the working, "as in the pleadings mentioned;" and by certain admissions in the suit, that, " by means of the workings of stone in the pleadings mentioned," a certain portion of the surface soil had been broken up. Baily, Q. C., and Burdon, for the plaintiffs." Mineral" is that which is got by underground working. (Townley v. Gibson, 2 T. R. 703; Darvill v. Roper, 3 Drew. 294). Micklethwait v. Winter (6 Exch. 644) only decides that stones may be included under "minerals;" and so Lord Rosse v. Wainman (14 M. & W. 859; S. C., on app., 2 Exch. 800). This construction was supported by Brown v. Chadwick (7 Ir. Com. Law 101) and Listowel v. Gibbins (2 Ir. Com. Law, 223). By a private inclosure act of 1799 (30 Geo. 3, c. xi), of evidence against Simpson, the Court would, under the old practice, give an opportunity of correcting a mere slip (Dan. Ch. Prac. 819, ed. 1815); or the matter would be referred to chambers; but, under the cir cumstances, the evidence is sufficient. Simpson is lessor, and therefore a necessary party. The pleadings state workings by him; the affidavit refers to workings "as in the pleadings mentioned;" he does not deny these statements; there is no case of hardship against him, as he must be held to have full notice of the contents of the deed, under which his lessor's title arises. (Jay v. Richardson, 30 Beav. 563). Sir R. T. KINDERSLEY, V. C.-The question in this cause turns upon the construction of a reservation or exception contained in a certain deed of conveyance of lands in Northumberland, which was made in the year 1801. The question arises in this way. The plaintiff, who was the beneficial owner at least for her life, for her separate use, of certain lands, files this bill to restrain the defendants from proceeding, by quarrying or otherwise, to take from these lands out tain freestone; the plaintiff insisting that the deferd ants have no right to touch that freestone in any wa that the freestone, in fact, is the property of the plaintiff; that is to say, that the plaintiff is the cest que trust for life of the property, including the freestone, on the ground that the freestone was comprised in the conveyance of 1801, and not comprised in the exception of that conveyance. The defendants, on the other hand, insist (that is the substance of the case) that, according to the true construction of that instrument of 1801, the freestone, as well as other subterranean articles or productions, or whatever they may be called, were comprised in the exception to the grant, and not in the grant itself. The first question is, what was meant by that-reserving the royaity of the two farms? It is extremely difficult to say what was meant. Unless it be a term which was used vernacularly in that part of the world, which I think is exceedingly probable, it is impossible to say what was meant by reserving the royalty of two farms which were sold in fee-simple. There is no case of lord of the manor; but it is simply the vendor has hands in fee-simple, reserving what is called a royalty in the two farms. It appears to me, the strong probability is, that it is a term known in a certain sense in that county, and importing something with reference to mines and minerals; and I cannot help thinking, that when we come to the operative part, and see what was actually reserved, by the royalty" fit is in the singular number) was meant the mines and minerals, whatever they were. With that recital, and various other recitals of great length, which I need not go through, for they do not touch the preent question, there is the conveyance of the lands, the terms of which would be sufficient to convey everything. But then that is followed by an excep 66 Now, then, what have we got here? "Mines and seams of coal and other mines, metals, or minerals." It is in vain to criticise the exact propriety of the language used; but still one may observe, it is not appropriate in this respect, with regard to the word "metals," because, when you have got all mines and seams of coal, which is not a metal, it is not very appropriate to go on and say, "and other metals;" but still, there it is, and it is not very difficult to see what the meaning was-I mean the meaning in that respect. It is a reservation of all mines and seams of coal (about which there can be no doubt of the meaning) and other mines, and all metals and all other minerals. Coal, though not a metal, is a mineral. If you take the etymology of the word "minerals," I apprehend the word "minerals," strictly speaking, according to its etymology, means those products which are derived from a mine. Then, what is the meaning of a mine? I confess, when you come to the question whether a mine and a quarry mean the same thing, I cannot entertain the smallest doubt on the subject. A mine is not a quarry, and a quarry is not a mine. It will, perhaps, require considerable labour to form a precise definition of either, that may not be liable to some objection, but nobody, who has had his eyes about him in his life can fail to know the distinction between a quarry and a mine. And we know this, that a mine, properly speaking, is that mode of working for minerals, in any sense, by which you dive That is the exception; and the question is, what is into the bowels of the earth, and then, from the depth included in that exception under the terms "mines to which you go, begin to work either horizontally or and seams of coal, and other mines, metals, or mine- in a diagonal form, for it is not necessary it should be rals, as well opened as not opened ?" It is contended, absolutely a horizontal working, but still what you on the part of the defendants, that that excep- may call lateral working. That is a mine, the people tion comprises everything .which comes under the who are working are working underground, working description of minerals, whatever it may be. Of under the cover of the superincumbent earth; whereas course, it is not contended, on behalf of the plaintiff, a quarry is working sub dio, casting away the surface that it comprises only metalliferous minerals; but the and working the stone, or whatever other article you contention on the part of the defendants is, that it com- are working. Therefore, I cannot say I see the smallest prises every metal whatever. Now, if one asks what doubt or question about the distinction between a is a mineral, that is in the large sense of the term, I mine and a quarry; and I must say, it appears to me, am not aware if any of the productions which consti- that in the exception in this case of quarries, so far as tate what is called the crust of the earth is not a that word is concerned, the exception would not commineral. I suppose it would comprise, not only what prise quarries. I observe, in Tomkin's edition of Jaare commonly called minerals, such as coal and iron- cob's Law Dictionary, the definition of a mine given, stone, and fire clay, and porcelain clay, and articles of which, I think most inaccurate, is, that the word that kind; but that, in strictness, it comprises chalk, "mines," means quarries or other places from which stone-all kinds of stone, whether freestone, sandstone, mineral substances (or something of that kind) are cr granite-every kind of stone and gravel; and I do got; that is, assuming that a mine or quarry is the see why it would not include the very mould which same thing. I dissent from that; there is no authority Les immediately at the surface, and upon which the for it, and I think all the cases have assumed, so far vesture grows and thrives. as the question has arisen, that a mine and a quarry are not the same thing. tion. I apprehend, in its wide and extensive meaning, it would include everything of the kind; and I do not see how you are to except anything, if you are to go 30 wide as that. I therefore think it is hardly posible to conceive, when a vendor and purchaser are agreeing that the vendor shall sell the fee-simple of the land to the purchaser, but excepting minerals, hat in such a case there is an exception of the whole of the component parts of that which is the subject of he soil. I say, it is not possible that that could be the meaning; and I think, referring to the cases cited in one side and the other, it is quite clear that that is lot the sense in which a court of law will, necessarily, it least, interpret the word "minerals." The word minerals," then, must have some narrower interprelation than that wide meaning which may be called sither a scientific or a popular meaning; if you please, the wide universal meaning. I think it must have a more limited meaning. I think all the cases that have been decided one way or the other upon the subject, whether more in favour of the plaintiff or more in favour of the defendant, all assume that. With regard to the distinction, one idea (not generally conveyed by it) seems to have been according to some of the definitions in the books, that a quarry is more properly that excavation from which you get stone; whereas a mine is more properly that diving into the bowels of the earth from which you get coal or metalliferous minerals, or other minerals, that are usually found, not at the surface or near the surface, but at a considerable depth below. If the word was merely "mines," I should have no difficulty whatever in coming to the conclusion, that it would not include quarries; in other words, that it would not give the right of working the freestone by means of quarries. But the question is, whether the exception does or does not comprise freestone worked in any way. Now, as I have stated, it is contended that freestone is a mineral; and no doubt, in one sense, freestone is a mineral. But I think, in all the cases, in the cases that have been cited at law, and those cases in Ireland, and the other cases which have been cited, there clearly is a principle upon which the to the custom of the country—that is, of Northumberland, or the immediate neighbourhood in which the parish of Long Benton is situate-there is no evidence to shew that the term "minerals" has any express or precise understood meaning among the people dealing in mining property. I think it is extremely probable there is, but there is no evidence upon it, and therefore I cannot assume it. I can only take the words I have got here, and also the circumstances of the case The circumstances of the case, I confess, would lead me to this primâ facie assumption of probability, that where the vendor is professing to sell the estate, but is reserving minerals, that the intention would be to reserve those articles which, according to the common acceptation of the term as used in that part of the world, and I may say generally, come under the description of minerals, which are commonly notified or designated by the term "minerals." But now w have these words taken together-" mines and seam of coal, and other mines, metals, or minerals, as wel opened as not opened." Well, as to "mines, metals, o minerals," I must say it appears to me that "mines, is a governing word there, especially when I find the minerals is, strictly speaking, what is got from mines and not what is got from a quarry-" mines and sean. of coal, and other mines, metals, or minerals." B then we have this further: that a little lower down, i a subsequent clause of the same sentence, we have a description of that same property, if I may apply tha term to it. It is that described in the sentence lowe down-" the said collieries, mines, and minerals;" an that is repeated again-"the same collieries, mines and minerals." Now, what in the county of Northum berland must be considered, not as passing by thos words, but as being included in those words of an ex ception when everything would pass without the excep tion? I apprehend the meaning would be, thos mines from which those things are gotten which in this county are ordinarily gotten from mines-thes products which are ordinarily gotten from mines. Now it is in evidence that, in the county of Northan Courts have proceeded. The question is, of course, a question as to the intention of the parties, and, therefore, you must endeavour to see from the whole context of the deed, and from the nature of the transaction, what was the intention of the parties; and according to the intention of the parties, to be derived from the instrument, and the circumstances under which the instrument was framed, you determine whether the word "minerals" does mean one thing, or does mean another. The word "minerals" in one instrument, and in a transaction of one kind, may include freestone, or any other product of that kind; and in another instrument, framed under totally different circumstances, the word "minerals" would not include it. Now, in the case which is much dwelt upon, of Lord Rosse v. Wainman, followed by that other case, which simply followed the same principle, what was the case there? It was a case of inclosure. There the dealing was with respect to an inclosure, where manorial rights were involved. Well, manorial rights are not confined to minerals. Manorial rights are far more extensive; they extend to any sort of manorial property, in the largest sense. The lord is the owner of the soil. The commoners have only a limited right of using the soil, or taking away, it may be, the peat or other ingredients that compose the soil. They may or not have the right, according to the custom of the manor; but they all belong to the lord, and the lord has not only the right to the coal, but he has a right to everything under the earth, be it what it may, whether it properly comes within the term "minerals," as used in the direct senses, or whether it comes within the term "minerals," in the more wide and loose sense. Therefore, when you are dealing with such a case as that, the Court, in that case of Lord Rosse v. Wainman (though it was expressed in the later case to be a matter of considerable doubt and difficulty), still came to the conclusion, on the whole, that the intention was to reserve the lord's rights; to give to the tenants, that is, to the commoners, the persons who were entitled to a share in the allotments, to have an allotment made to them-berland, freestone has never been known to be got fr to give to them the soil, and to reserve to the lord his manorial rights. In the case that came before me in Darvill v. Roper, and those two cases in Ireland where the same principle was followed, there the dealing was under totally different circumstances, and between different parties. In that case of Darvill v. Roper, it was a case of partition, and there I came to this conclusion ::-The object of the partics was to partition all that could be partitioned without extreme difficulty, or inconvenience, or expense, and only to have unpartitioned that which could not, I will not say which it was physically impossible to deal with by partition, but which it would be hardly practicable to deal with by partition; and in that case the construction was put upon the word "minerals," and was followed by the two cases in the Queen's Bench in Ireland. Therefore it may be considered there is no fixed principle on which this Court will interpret the word "minerals." It will interpret the word "minerals" according to the nature of the instrument in which the word occurs, and the circumstances under which the instrument was framed. Therefore it appears to me that it would not at all follow, because the Court in that case of Lord Rosse v. Wainman, under great difficulty, came to the conclusion that the word "minerals" was there to include, we will say, stone of any kind; that, therefore, in the case now before me, which is simply a case of vendor and purchaser, and the question arises upon an exception, it would not at all follow that the same construction would have to be put on the same word. Now, there is no evidence to shew that, according | a mine. That is not peculiar to the county of North umberland. I will not say there is not an instance t be found in the whole of Great Britain of freeston being worked by mining operations, but I think th instances must be so rare as almost to amount t nothing. But, no doubt, freestone is not ordinaril and, as it appears, never is, in the county of Nor umberland, gotten by means of mines. But, further, if the vendor has a right, under th exception, to work for freestone by means of qu rying-I mean by means of surface working—the co sequence would really be serious to the purchaser. appears from the evidence, or from the admission which is the same thing, that this parish of Long B ton is a parish in which the whole of the sub-soil freestone, that is, sandstone. Perhaps in some par it may not be such fine sandstone as to amount to hard-worked stone, but still it is sandstone, that partaking more or less of the character of freeston and the upper vein is not above six feet from t surface in some parts, and that varies in some par to twenty feet below the surface. The consequen therefore, of allowing the vendor the right, under exception, to work the freestone would be that, in a part of what he has sold to the purchaser, he come at his pleasure, take up the soil to any exte (for there can be no limit), remove the soil, and w away to any depth he pleases for the purpose working freestone. It appears to me so unnat and unlikely, under such circumstances, that that co have been intended to have been the right of vendor, that I think I must come to the conclusi |