دو V. FORMAN. he thought it meant what could be got by a prudent 1866. person with a fair profit, however small: the Court CARTWRIGHT however held that the direction was insufficient, and Pollock C. B. said, p. 241, ""fairly wrought' means, that which can be fairly and properly gotten, according to mining usage, without extraordinary difficulty or expense.' [Cockburn C. J. The phrase "fairly workable" is well known in the mining world. I am inclined to think the Court of Exchequer went wrong, not understanding that language. Mellor J. That Court only say that the test proposed by Erle J. is not proper: they do not lay down one independent of mining usage. Blackburn J. On a question of the constructive total loss of a ship (a) Maule J. defined that to be impossible which was not practicable, and that to be impracticable which could only be done at an excessive or unreasonable cost, so that it would be a case of total loss if it would cost more to recover the ship than she was worth.] Digby Seymour and Wills, in support of the rule.The lease does not contain a covenant by the lessees to work the mine. And the language of the covenant in question is to supply to the lessors coals from those brought to the pit's mouth. [Cockburn C. J. The pit's mouth is the place where they are to be delivered.] Then the lessee is not bound to get coal which cannot be got without costing more than it is worth. Working a colliery means working it so long as it is reasonable to do so; Jones v. Shears (b). In The Marquis of Bute v. Thompson (c) there was an absolute covenant to get the (a) See Moss v Smith, 9 C. B. 94. 103. (c) 13 M. & W. 487. 1866. CARTWRIGHT V. FORMAN. coal or pay a fixed rent, and Griffith v. Rigby (a), as well as Jervis v. Tomkinson (b), belong to that class of But the finding of the arbitrator in the present case is tantamount to what was laid down in Griffith v. Rigby (a). [They also cited Smart v. Morton (c).] cases. COCKBURN C. J. I am of opinion that the rule should be discharged. The effect of the covenant is not conditional and qualified, as stated in the plea, but absolute, and must be performed so long as the lease lasts, subject to this, that if no coal can be got it becomes inoperative. Here coal can be got. The lessee, in consideration of the demise of the coal mine, is to pay a royalty and to supply a certain quantity of coals at the pit's mouth. If the coal should be fully and fairly gotten before the expiration of the term he has power to determine the lease on giving twelve months notice, and so get rid of this onerous covenant; and by holding the lease the defendant prevents the lessors from getting this seam of coal. These three things satisfy me that the proper construction of the covenant is that contended for by the plaintiffs. BLACKBURN J. At the trial I was under the impression that the covenant declared upon was subject to the proviso for cesser of the term "if the minerals should be fully and fairly gotten," and that the question was whether they had been fully and fairly gotten. But the proviso for cesser is upon twelve months notice being given, and therefore does not attach. The covenant is that the lessors shall be entitled, during the term, to a certain quantity of coals at the pit's mouth: whatever may be the measure of damages for breach of that covenant, it is broken, and either the plea is not proved or it is bad. If the lessee intended to limit the covenant as contended for he should have done in express terms. MELLOR J. had left the Court. 1866. CARTWRIGHT V. FORMAN. Rule discharged. WINSOR against The QUEEN (in error). Reported vol. 6, p. 143. Wednesday, January 25th. The Local Board of Health for the District of Thursday, WAKEFIELD, appellants, The WEST RIDING and GRIMSBY Railway Company, respondents. Reported vol. 6, pp. 794. 802. 1866. [Tuesday, February 1st.1 The Common Law Procedure Equitable plea. action. JEFFS against DAY. Declaration for money due on an award. Plea, on equitable grounds, that before action the plaintiff assigned the sum to D. & Co.; that they gave notice thereof to the defendant, and required him to pay; that the assignment remained in force, and the defendant remained liable to pay the sum to them; that the action was not brought for their benefit or with their knowledge, and if the plaintiff recovered the defendant would notwithstanding be forced to pay the same to them. Held, that the plea was good, under The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 83., as a Court of equity would grant a perpetual and unconditional injunction against the plaintiff suing for his own benefit. DECLARATION for money awarded by the umpirage of an umpire appointed under a submission of matters in difference between the plaintiff and the defendant, and for the costs and expenses incurred by the plaintiff in making the submission a rule of Court. Third plea, as to the sum of 55l. 7s. 9d., parcel of the money claimed, &c., by way of defence upon equitable grounds. That before action the plaintiff for a good and valuable consideration assigned that sum to certain persons trading under the name, style, and firm of Messrs. F. Devas, Routledge & Company; that they then gave express notice to the defendant of the assignment and required him to pay that sum; that the assignment remained in full force and unrevoked, and the defendant remained liable to pay the same to those persons. And that the action was not brought in any manner or to any extent for the use or benefit of Messrs. Devas, Routledge & Co., or with their knowledge, privity, or consent; but, notwithstanding, they required the defendant to pay the sum of 55l. 7s. 9d. to them, and in case the plaintiff recovered the same the defendant would be forced and obliged to pay the same notwithstanding such recovery to the last mentioned persons. And that the plaintiff sued for the sum of 55l. 7s. 9d. inequitably and in fraud of the assignment and notice. Demurrer, and joinder. Thesiger, in support of the demurrer.-A plea on equitable grounds is not a defence under The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 83., unless it states facts which entitle the defendant to apply to a Court of equity for an absolute and perpetual injunction. A Court of equity would only grant an injunction against the plaintiff suing the defendant on condition that the defendant paid the sum to Devas & Co., or that the money was brought into Court. The plea ought to shew an extinction of the debt due to the plaintiff, Wharton v. Walker (a), per Bayley J.; or that his liability to Devas & Co. was discharged, Cochrane v. Green (b). Suppose the defendant became bankrupt, and his estate paid only 10s. in the pound, Devas & Co. would call on the plaintiff to pay the whole of his debt to them. The plea does not even state a promise by the defendant to pay Devas & Co.; though such a promise would be void for want of consideration, the debt not being extinguished; Liversidge v. Broadbent (c). Joseph Brown (Biron with him), contrà.-The plaintiff has made an equitable assignment of the debt due to him to Devas & Co., which is analogous to the case of the holder of a bill indorsing it over. The (b) 9 C. B. N S. 448. (c) 4 H. & N. 603. (a) 4 B. & C. 163. 165. 1866. JEFFS V. DAY. |