M.R. Lord Abinger v. Ashton. 1873 defendants, to assist them in giving bona fide advice for the more advantageous conduct of the mine, but not to assist them in the litigation. Therefore I look upon their evidence as much better and more to be depended on than ordinary expert evidence. If, therefore, the witnesses were all equally positive, I certainly should prefer the evidence of the defendants; but when I come to examine the plaintiffs' evidence, I find the evidence is not nearly so positive as that of the defendants. As regards this matter of the ventilation, the majority of the witnesses say there would be sufficient air if the passages in the lower mines, especially the Black Mine, were constructed on a larger scale. On the whole, I am satisfied, on the balance of testimony, that the defendants are right on this point, and that it would be dangerous to continue the working of the Town Lane Mine, together with the Black Mine and the Cannel Mine. Therefore I ought not to interfere by injunction, and on this point the plaintiffs' case fails. *The next point taken was that the plaintiffs were [376 entitled to an injunction to prevent the Town Lane Mine "remaining choked up, or otherwise than open and in proper working order." Now the jurisdiction of this court does not extend to the performance of covenants to repair. It is clear I cannot grant an injunction that the defendants shall not be at liberty to work the other mine till they put the Town Lane Mine in repair. The other part of the case that was seriously fought was this: It appears that about some fifty yards below the Black Mine there is a vein of coal of about 2 ft. 3 in. in thickness, which is a very profitable mine to work at the present time, and the defendants are working it (as it is termed) in advance of the Black Mine. One of the witnesses says they took 11,000 tons a week out of the Cannel Mine, and only 600 tons out of the Black Mine, so that it would appear that the cannel coal is worked more rapidly than the Black Mine coal, and that the Cannel Mine has been almost exhausted, whilst the Black Mine is very little worked; and the allegation is, that this is contrary to good mining. An admission was made that it was not contrary to good mining to work a coal mine as they are working the cannel, provided they did not work the Black Mine at all-but that concedes the whole case, if I am right in the construction I put upon the covenants, that if they are entitled to work the Cannel Mine alone, they are 9 ENG. REP. 76 1873 Lord Abinger v. Ashton. M.R. not the less entitled to work it because they work the Black Mine. If they work it without working the Black Mine, they may equally work it if they do work the Black Mine. But it is said, if you work the Black Mine at the same time as the Cannel Mine, the roads and passages of the Black Mine will be injured by reason of the taking away of this additional quantity of material, which will cause a subsidence and injury to the roads. That may be so, but still that does not give a right to injunction. The injury done is an injury done to the working of the Black Mine. Either you are working the Black Mine properly, or you are not; but whether so or not, for that is the point, the plaintiffs admit if you work the Black Mine fast enough no injury will happen; or rather their complaint is that the Black Mine is worked improperly by not being worked away fast enough. 377] *Suppose it was a negative instead of an affirmative injunction that was asked. You could not ask for an injunetion to restrain them from working the Cannel Mine, and on that ground the plaintiffs must fail. As regards the Black Mine, you cannot have an injunction for not working fast enough. There is no form of injunction applicable to it, and therefore the remedy by injunction is simply out of the question. But passing from that, let us just look a little at the fact. Now the fact in dispute, and the issue to be decided, is this: whether working the two mines or seams together, but working the lower mine in advance, is in accordance with the common mode and usual practice of carrying on coal works or colleries with effect, which refers of course to that district; because, with regard to usual practice, we know that it varies very much with the nature of the mine and the nature of the fuel which is extracted; the practice of one district has little or no application to the practice of another. Now on this there has been a great deal of evidence, and I must say that the evidence is overwhelming in favor of the defendants, and that is evidence not merely of opinion but of fact. [His Honor then reviewed the evidence of the plaintiffs' witnesses and the evidence of the defendants' witnesses, and said that while the one set of witnesses were vague and unsatisfactory, the other gave conclusive evidence, founded on specific facts, in favor of the defendants' mode of working the mines, and continued:] The result is, that it is proved that the mode of working adopted by the defendants (whether the best possible mode M.R. Howard v. Earl of Shrewsbury. 1874 I do not say) is the common mode and usual practice, and consequently there is no ground for accusing them of a breach of contract, or of doing anything which entitles the plaintiffs to come to this court for an injunction. The bill must be dismissed with costs. Solicitor for the plaintiff: Mr. E. H. Barlee, agent for Messrs. Buckley & Son, Ashton-under-Lyne. Solicitors for the defendants: Messrs. Phelps & Sidgwick, agents for Messrs. Sale, Shipman & Co., Manchester. [Law Reports, 17 Equity Cases, 378.] M. R., Jan. 13, 14, 15, 1874. *HOWARD V. EARL OF SHREWSBURY.(') [378 [1872 H. 133.] Infant Plaintiff-Practice-Ejectment Bill. Where an infant is entitled both at law and in equity to real estate as against another who is in wrongful possession, he is entitled to recover in equity on a bill stating these facts and asking a declaration of title and account, and may join adult remaindermen as co-plaintiffs. Crowther v. Crowther (2) not followed. THE plaintiffs in this suit were the devisees under the will of Bertram, seventeenth Earl of Shrewsbury, namely, Edward George Baron Howard of Glossop, the Earl of Gainsborough, Lord Edmund Bernard Howard, an infant, by the Duke of Norfolk, his brother, and next friend, and Francis Edward Howard, also an infant, by his next friend. The defendants were the Earl of Shrewsbury and the trustees of the Shrewsbury settled estates, namely, John Gilbert Talbot and Alfred Charles Duncombe. The object of the suit was to obtain a declaration by the court *that certain estates (called for convenience prop- [379 erties numbered respectively 1, 2, 3, and 4) passed under the devise in the will of the said Earl Bertram, and that the plaintiffs were entitled to the same accordingly. *SIR G. JESSEL, M. R.: Now, the only point left to [398 consider is, whether the plaintiff the infant, the first tenant for life, could succeed on such an allegation as that contained in the bill without more, and I was referred on that point by the leading counsel of the defendant to the decision of Lord Romilly in Crowther v. Crowther ("), where he says: "It is said that this is the case of an infant, and that the principle (1) The greater portion of this case is of no value in this country, and is omitted. M. (2) 23 Beav., 305. (3) 23 Beav., 305, 308. 1874 Howard v. Earl of Shrewsbury. M.R. above stated does not apply to the case of an infant; but I think the authorities cited do not establish any such distinction. This court will not allow an infant to be turned out of possession of an estate without legal process, and, accordingly, the cases cited are all instances of a person intruding on an infant in possession, either by himself or his guardian or bailiff; but if it is admitted that the infant never was in possession or in the enjoyment of the property, either by himself or his guardian, he stands in the same situation as any other person, and must first establish his legal title." I must say, because I am driven to it, I am clearly of opinion that that is not a correct statement of the law. If Lord Romilly had decided this for the first time, and there were no other decision on the subject, I should be bound to follow that decision, and should most unhesitatingly follow it; but in the first place, I am satisfied that the then Master of the Rolls did not intend to establish any new law at all. He was merely stating what appeared to him to be the result of the decisions, and he confined his remarks to the authorities cited before him. Having looked at all those authorities, I find, somewhat to my surprise, that they do not bear out the statement at all. I have also looked at a great many others which are entirely contrary to it. I will, out of re399] spect to *my predecessor, advert to one or two of them. I cannot help thinking that Lord Romilly had forgotten for a moment the technical meaning of the word "intruding' and that "intruding" was used in the old books, not in the sense of turning anybody out, but of taking the vacant possession immediately after the death of the ancestor, before the heir or devisee entered, and that that misled him a little, I think, as to what the authorities mean. But it is, I think, quite plain, on the authorities stated by him, without going to the others, that no such distinction can be made out. One of these authorities was the case of Newburgh v. Bickerstaffe (), which was a bill depending on a title of some marsh lands, and the judgment is this: "The Lord Keeper observed, that Littleton says if a man intrudes upon an infant, he shall receive the profits but as guardian”—that means intrude in the technical sense, not in the sense that the infant was already in possession-"and the infant shall have an account against him in this court as against a guardian." There the court retained the bill, and directed a trial in ejectment, so that it did not act on any notion of the word "intrude." Now the very retention of the bill shows that the court was in favor of the infant's right, that in quot(') 1 Vern., 295. M.R. Howard v. Earl of Shrewsbury. 1874 ing those words of Littleton, the then Lord Keeper understood them in the sense I have mentioned, because he did not dismiss the bill, but he retained the bill, directing an action to be tried to determine the legal right, which I should have been compelled to do here had it not been for the passing of Sir John Rolt's Act. The case, therefore, is an authority in favor of the right of the infant, and shows that the word "intrude" must not be used in the modern but in the technical sense. 66 The next case is the case of Yallop v. Holworthy ('), which I need not cite. The next is of more importance, Morgan v. Morgan (); that is a case before Lord Hardwicke, when Lord Chancellor, and he states the law in this way: "Where any person, whether a father or a stranger, enters upon the estate of an infant"-not turns the infant out, but takes the estate and continues the possession" *—that is what [400 has happened in this case, because the present earl has since the death, there being an intervening earl, entered into possession, with the consent of the trustees, of the rents and profits during the infancy of the plaintiff, the first tenant for life" this court will consider such person entering as a guardian to the infant, and will decree an account against him, and will carry on such account after the infancy is determined." So that he does not state the law to be that the infant must be turned out of possession, or that the law does not apply, or that it was a case of an infant who had ever been in possession. The next case cited is Dormer v. Fortescue ("), before the same judge. There the Lord Chancellor says this: "So in the case of a bill brought by an infant to have possession of the estate," not merely an account of rents and profits, but "possession of the estate and an account of rents and profits, the court will decree an account from the time the infant's title accrued, for every person who enters on the estate of an infant enters as a guardian or bailiff for the infant;" thus putting the case not at all as Lord Romilly put it, but in the broadest terms, irrespective of whether the infant was in possession or not. The next case is a case of Blomfield v. Eyre (*). There the infant had never been in possession, and he sought to take away the property from some other person who had purchased the property, and Lord Langdale says ("): "Considering the infancy of the plaintiff, and the notice which the defendant possessed at (1) Eq. C. Abr., p. 7, pl. 10. (2) 1 Atk., 489. (3) 3 Atk., 124, 130. (4) 8 Beav., 250. (5) Ibid., 258. |