1842. VICE V. Prayer. Demurrer. or about the month of January, 1834, the appellant forcibly and fraudulently entered upon the respondent's tin bounds, and broke down and removed his machinery, and expelled and dispossessed him from and out of the same; and that the appellant had thence hitherto kept, and did then still keep, possession of the mines, and had raised and obtained tin and tin ores within and under the respondent's bounds; and had carried away, and converted and disposed of, to the appellant's own use and benefit, divers large quantities of tin and tin ore of great value, to the injury of the respondent, and against the laws and customs of the Stannaries. The petition then, after stating that the respondent had required the appellant to deliver up to him possession of the tin bounds and workings within the same, and the tin and tin ore raised therefrom, then being in the possession of the appellant, and to account for and pay to him, the respondent, the proceeds and produce of the tin and tin ore, which the appellant had carried away and converted to his own use, and that the appellant had refused and still refuses so to do-prayed, in effect, that the appellant might answer the petition, and might be ordered to give up to the respondent the possession of the mines, and to deliver to him all tin and tin ore then in his, the appellant's, possession, and account for the value of all tin and tin ore which he had converted to his own use. То this petition the appellant put in a demurrer, in which were assigned divers causes of demurrer, including the following:-"That the respondent had not, by his petition, made or shown such a case as entitled him, the respondent, in the Vice-Warden's court, to any account, discovery, payment, or relief, as in the prayer of the petition mentioned, from or against the appellant touching the matters alleged in the petition, or any of such matters; and that the petition contained no matters of equity whatsoever, nor any statement, complaint, matter, or thing, which could entitle him, the respondent, by law to the interference or assistance of a court of equity against the appellant. The demurrer came on to be argued before the Vice-Warden on the 24th January, 1838, and on the 21st April, 1838, judgment was delivered, overruling the demurrer, and ordering the appellant to answer the petition, or bill; and it is from this judgment that the present appeal has been brought. The particular ground of demurrer, which has been referred to, does not challenge the jurisdiction of the Vice-Warden to decide questions proper for the decision of a court of equity; but, admitting that jurisdiction for the purposes of the argument, it insists, that the matter of complaint in this petition is not proper for decision of any court of equity. Assuming, for the purpose of trying this question, that the respondent might have recovered the possession of the property in ejectment, and that the jurisdiction exercised by the Vice-Warden on the equity side of the Stannaries Court does not differ from that which is exercised in the High Court of Chancery, if the petition of the respondent had prayed that possession might be delivered to him and nothing more, it is clear that the demurrer must have been allowed. For the question, upon which the right to possession in this case depends, is purely a legal question, and no impediment is suggested in the petition, the necessity of removing which would entitle the respondent to transfer his complaint from a court of law and bring it into a court of equity. So if the respondent, in addition to a prayer in his petition, that possession might be given him, had prayed that the appellant might account for the mesne profits since he took possession of the mines, and these profits had been of the ordinary character of rents of real estate, the demurrer must have been allowed; for there is nothing in such an account, which requires the extraordinary powers of a court of equity to take it. The question then remains, whether or not the circumstance that the mesne profits, of which an account is sought, are the profits of a mine alters the case? The petition does not state, even in the most general terms, that any difficulty would exist in taking 1842. VICE V. the account, nor that the account cannot be taken except in a court of equity; nor does it suggest a single fact from which the Court, can infer that a reason exists why the account of mesne profits may not be taken as conveniently in a court of law as in equity, unless it is to be inferred that such is the case from the mere fact that the profits, of which an account is sought, are the profits of a mine. I am of opinion that I cannot judicially draw such an inference in the absence of circumstances leading to it, and in a case between parties wholly adverse to each other. Such an inference could not be drawn, unless it were admitted that in no conceivable case, can an account of the profits of a mine be taken without having recourse to a court of equity. The next question then to be considered is, whether it is right to assume that possession of the mine, might have been recovered in ejectment? The Vice-Warden, in deciding this case, did not express any doubt that possession of the mine might be recovered in ejectment; his proposition was merely this, that a court of equity had concurrent jurisdiction with a court of law. The cases cited at the bar during the argument show that ejectment will lie for a mine in circumstances like those of the present case, and I consider that such is the law of the case. Then has a court of equity a concurrent jurisdiction with a court of law in the absence of all special circumstances to give it such jurisdiction? The Vice-Warden was of opinion that such a concurrent jurisdiction existed. In support of this opinion, which is clearly at variance with the first principles of equity as administered in the High Court of Chancery, the Vice-Warden relied on certain precedents in the Stannary Court, which were brought under his notice: and if these precedents had been so numerous as to lead irresistibly to the conclusion that the jurisdiction of that Court over such questions was clearly established; or if it had appeared that, in those precedents, the decision of the Court had been come to after solemn argument, the question might have been entitled to a different consideration from 1842. that which I feel bound to apply to it. But this is not the case; and in the absence of the most conclusive evidence VICE v. in support of an equitable jurisdiction so anomalous as that THOMAS. contended for, I am compelled to hold that no such jurisdiction exists. In the judgment which has been delivered, I have relied upon the circumstance that no difficulty is suggested in the petition in the way of taking the accounts, which the respondent upon this appeal asks. Admitting, as a general proposition, that where any part of the relief, which a party claims, is proper for the decision of a court of equity, that Court will incidentally decide all questions at law, which may be ancillary to the equitable relief: there is strong authority for holding that, in the particular case of a party, out of possession of an estate, claiming equitable relief, the right to which depends upon the right of possession, the Court requires that the party so circumstanced should recover the possession at law, before he files his bill for the consequential equitable relief. The decision of the Decision of the Vice-Warden must, therefore, be reversed. proper to add, that, although it has been unnecessary, for the purposes of this appeal, to advert to the question of the equity jurisdiction of the Vice-Warden of the Stannaries, I entertain no doubt whatever of its existence. It may be Sir William Follett, (Her Majesty's Solicitor-General,) Mr. Erle, Mr. Sutton Sharpe, Mr. Barlow, and Mr. Butt, were the counsel engaged (a). (a) The foregoing case has been published by Mr. Smirke, (now Solicitor General to the Prince of Wales) with an Appendix of Records and Documents, illustrating the early History of the Tin Mines in Cornwall, and learned explanatory notes. Saunders & Benning, 1843. 8vo. pp. 132. The young equity student will probably not object to the insertion in this place Vice-Warden reversed. April 30, and May 8, 1847. ARNOLD V. It must be con sidered in future that the swer," in Order 16, Article 33, and "the an of several answers," in Order 66, of ARNOLD v. ARNOLD (a). THE bill was filed on the 23rd July, 1846, and was marked for the Court of the Vice-Chancellor Wigram. There were twenty defendants, of whom nine filed their answers on the 2nd and 5th Dec., 1846. On the 6th March, 1847, notice of motion was given on behalf of these defendants to dismiss the bill for want of prosecution; and on the same day an order of course to amend the bill was obtained at the Rolls (b). None of the defendants, except those who had answered, had been served with subpoenas. On the motion the General Orders of May, 1845, mean the last answer required by the bill; and that an order of course to amend, obtained before the expiration of four weeks from the time when the last answer required by the bill is to be deemed sufficient, is not an irregular order, although obtained after the expiration of four weeks from the time when the last answer filed was deemed sufficient. General Order of the 13th April, 1847. (a) A few copies of the author's account of this case were in June, 1847, published in the shape of a pamphlet, upon the title page of which there was the ensuing motto, taken from the letter of a distinguished jurist of another country-Il n'est rien dans la pratique si simple que ce soit, qui ne mérite l'attention minutieuse de l'avocat le plus savant et le plus éminemment célébre.-Correspondance de quelques Jurisconsultes du 19ème Siècle. (b) The frequent abuse of this liberty enjoyed by a plaintiff of meeting a motion to dismiss by an order of course for leave to amend, gave rise to the General Order of the 13th April, 1847. By that order the plaintiff is not to obtain an order of course for leave to amend his bill after a defendant (being entitled to move) has served a notice of motion to dismiss the bill for want of prosecution. The Master of the Rolls has recently on several occasions stated that the abuse of the liberty to obtain an order of course for leave to amend, so long as there was an answer either not yet filed or not yet deemed sufficient, might probably render a General Order requisite for its prevention in future. It is to his Lordship's suggestion that the suitors owe the General Order of the 13th April, 1847. Since the foregoing was written Part I. Vol. 9, of Mr. Beavan's Reports has appeared. In the case of Forman v. Gray, page 196 of that part, the Master of the Rolls said (Feb. 8, 1847) that the abuse described above might be such as to render it necessary to make a General Order for the purpose of preventing it. When the same case came again before him (23rd March, 1847,) his Lordship said, page 204 of same part, that he thought it was contrary to the intention of the General Orders that the plaintiff after delaying so long as to entitle a defendant to move to dismiss, should directly or indirectly obtain further time without the |