1850. The Earl of GLASGOW and others v. The Hurlet ALUM Company and another. (grantees of the alum) bind themselves to pay to the Earl, his heirs, &c., a clear lordship of one-shilling and sixpence sterling per ton for the whole alum ore to be taken by them from the said pits, free of all charges, &c." For twenty years the works went on at a great profit, both alum and copperas being procured from the ore; but chemical discovery rendered the alum less valuable, and, from time to time, the grantees allowed their works to remain idle. Wilson and Sons became, in 1835, the lessees of the coal and limestone mines for a term of years ending in 1852. In the lease of the coal mines, giving them the right fully to work the coal, there was, among others, the following exception:-" It is hereby declared that nothing herein contained shall in any way injure the rights of the parties who lease the alum and copperas ores from the the said Earl of Glasgow." The established mode of working the coal mines up to 1843, had been by what was called stoop and room; the stoop being the pillar which was left for the support of the roof, and the room being the space left between the pillars upon excavating the coal. The room was also called the waste, and the fall of the roof which produced what was called the extinction of the waste, was known by the name of a crush. When it once commenced it often extended far beyond the immediate neighbourhood of the pillars actually removed, the lateral pressure destroying the roof for a considerable distance. A crush was always liable to be occasioned by the removal of the coal pillars, and as it rendered the obtaining of the alum impossible, the right of the lessees of the coal to work" (that is to say, to remove) the coal-pillars, was the question raised in this case. In 1843 the lessees of the coal began to remove the coal pillars, and a crush of a very extensive nature followed. Some arrangement was for a time made between the parties, but, in November 1846, the grantees of the alum presented a note of suspension and interdict, praying that the lessees of the coal might be prevented "from cutting out and removing, or weakening and injuring any of the pillars in the coal pits and coal wastes, whereby the same, or any of them, might be shut up, or the access thereto endangered during the remainder of the lease of the alum ore." In answer to the prayer of this suit, the Earl and the lessees of the coal mine insisted that, by the grant of 1800, he was "under no necessity to refrain from working the coal pillars as well as the other coal on the lands of Hurlet, when circumstances should render this necessary, or when he should think proper to do so." While the case was under discussion, but after an interdict granted, Messrs. Wilson, the lessees of the coal, offered to collect and bring to the mouth of the mine the whole alum ore, either taken from the top of the coal pillars, or found in the wastes, and to allow King and the Company to take it away, on payment of one shilling and sixpence a ton, within six months from the time of intimation of its having been brought to the pit's mouth being given to them; in consequence of which offer the Lord Ordinary recalled the absolute interdict he had previously granted, but allowed the suspension prayed for, the effect of which was to permit the coal lessees to continue their work, subject to responsibility in damages. King and the Alum Company then brought an action of declarator against Wilson and Sons, in order to have the extent of their relative rights ascertained and 1850. The Earl of GLASGOW and others v. The Hurlet ALUM Company and another. 1850. The Earl of GLASGOW and others V. The Hurlet ALUM Company and another. declared, and the amount of damages assessed, and the Lord Ordinary settled three issues for trial, of which the first alone now requires to be considered :— "Whether the defenders, or any of them, have removed, or are in the course of removing, or unduly diminishing, wrongfully, and in violation of the rights of the pursuers, under the said contract or lease [of 1800] coal pillars in the pits or wastes under the lands or farms comprehended in the said contract, to the loss, injury, and damage of the pursuers. وو The cause came on for trial before Lord Ivory, as Lord Ordinary, on the 3rd of April, 1849. It lasted eight days, and, at its conclusion, his Lordship stated his construction of the lease to be in favour of the pursuers, and directed the jury accordingly. The counsel for the defenders took two exceptions to this direction: first,-"In so far as his Lordship directed the jury in point of law that, according to the sound legal construction of the contract, it gives the pursuers the right, throughout its endurance, to prevent the landlord, or his tenant in the coal, from removing the pillars in so far as necessary to support the roof, though all the solid coal should be wrought out; secondly,-In so far as his Lordship declined, when requested by the defenders, to direct the jury in point of law that there is nothing in the contract of 1800, or in the leases of the coal of the defenders, to bar the Earl of Glasgow, or any person deriving right from him, to work out the pillar coal in a fair and regular manner after the solid coal is exhausted." The bill of exceptions was first prepared with the exceptions as stated above, and in that state was signed by the Judge. The jury returned a verdict for the Alum Company, with 5000l. damages. The bill of exceptions afterwards became the subject of discussion between the parties, and the Judge refused finally to sign it, unless the following paragraph (here marked between brackets) was introduced as explanatory of his direction : "In charging the jury, the Lord Ordinary stated as the legal construction of the lease of 1800, that the said contract or lease gave right to the tenant throughout its endurance [and so long as there should exist in the pits or wastes comprehended in the contract, alum ore unexhausted and workable, being part of the subject thereby conveyed or let] to prevent the landlord, and all deriving right through him, from removing the coal pillars in the said pits or wastes, in so far as these were necessary to support the roof of said pits or wastes, and thereby to preserve the requsite access for working the said alum ore; and that it mattered not, as regards this question of construction, and the rights of the tenant of the alum ore in respect of the same, whether the solid coal in the said pits or wastes should or should not have been previously wrought out.' وو The defenders at first objected to this addition, but his Lordship persisted in requiring it, and they finally gave way, on which the bill of exceptions was signed, the following words being added, as its conclusion: "Whereupon the said counsel, learned in the law, for the said defenders, did then and there propose the aforesaid exceptions to the directions of the said Lord Ivory, and did request him to sign this bill of exceptions, according to the form of the statute in such case made and provided: and thereupon the said Lord Ivory, at the request of the said counsel for the defenders, did sign the said bill of exceptions, pursuant to the said statute, on the 29th day of November, 1849, and in the fourteenth year of her present Majesty's reign. J. Ivory." 1850. The Earl of GLASGOW and others บ. The Hurlet ALUM Company and another. 1850. The Earl of GLASGOW and others v. The Hurlet ALUM Company and another. When the case came on to to be heard before the Inner House on this bill of exceptions, which had been duly presented by the Judge to the Court, the defenders set forth by affidavit the circumstances attending the preparation of the bill of exceptions, and contended that the exceptions alone ought to be taken into consideration, as being alone the original bill of exceptions properly prepared under the statute (a), and that the Court ought not to pay any attention to the statement explanatory of the direction introduced by the Lord Ordinary, for that the note tendered to the judge at the trial, and then signed by him, was the only document which could be referred to. The Court, however, refused to refer to the affidavit, or to listen to any statement of fact, or to look at anything but the bill of exceptions as presented by the Judge to the Court, and, on the questions there raised, gave judgment sup (a) The 55 G. 3, c. 42, s. 7 (Scotch act), by which it is enacted that "it shall be competent to the counsel for any party, at the trial of any issue, to except to the opinion and direction of the judge before whom the same shall be tried, as to the competency of witnesses, the admissibility of evidence, or other matter of law arising at the trial; and that on such exception being taken, the same shall be put in writing by the counsel for the party objecting, and signed by the judge; but, notwithstanding the said exception, the trial shall proceed, and the jury shall give a verdict therein for the pursuer or defender, and shall assess damages where necessary: and after the trial of every such issue, the judge who presided shall forthwith present the said exception, with the order or interlocutor directing such issue, and a copy of the verdict of the jury indorsed thereon, to the division by which the said issue was directed, which division shall thereupon order the said exception to be heard in presence on or before the fourth sederunt day thereafter." |